.-^£><£S;**=^^2>'^^S>^^^SiP'^©ft=<SS>^^»^ 
 
 ^ 
 
 ^^^^__^^^^:,,,^^^^^^;m^;,<;S:^:,,^^
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 1/ / ly-i^ " \
 
 /
 
 TREATISE 
 
 LAW OF E VI 
 
 riFTII AMEUIC/N, FKOM THE SEVENTH AKD ErOIlTK LOKDOn tTlTlOIV- 
 
 BY S. MARCH PHILLIPPS, ESQ. 
 
 BARRISTER AT LAW. 
 
 IN TWO VOLUMES. 
 WITH NOTES TO THE FIRST VOLUME. 
 
 BY ESEK COWEN, 
 
 one of the judges of the supreme court ot the state of j7ew-v0rk j 
 
 assi;ted 
 
 BY NICHOLAS HILL, Jr. 
 
 OOUN.-ELLOK AT LAW, 
 
 VOL. I. 
 
 SECOND EDITION. 
 
 NEW-YORK : 
 PUBLISHED BY GOULD, BANKS & (JO. 
 
 LAW EOOKSELLEKS, NO. 144, NASSAU STREET. 
 
 AND BY WJJ. AND A. GOULD & CO. 
 
 .NO. lOJ, STATE STREET, ALBANY. 
 
 1843.
 
 \ 
 
 \1 I 
 
 Entered according to Act of Congress, in the year eighteen hundred and thirty-nine, 
 
 BY GOULD, BANKS & CO., 
 
 in the Office of the Clerk of the Southern District of New-York. 
 
 3^ -si 
 
 -r..:. 
 
 MRRRIAM AND COOKE, PRIKTEBS, 
 WFST BWOOKFIEI.D, MASS.
 
 i 
 
 ADVERTISEMENT 
 
 TO 
 
 THE SEVENTH EDITION. 
 
 The last Edition of the Treatise on Evidence having been 
 long out of print, a Seventh is now submitted to the Profes- 
 sion and to the Public, carefully revised, and very materially 
 enlarged. 
 
 In preparing the present Edition, I have been fortunate in 
 obtaining the valuable assistance of my friend, Mr. Amos. On 
 quitting the practice of the bar, for other occupations of a 
 different kind, I found it would no longer be in my power to 
 give that unremitting attention (o professional studies, without 
 which I could not hope to carry on such a work with anv 
 prospect of success. I was, therefore, glad to avail myself 
 of the aid of a friend, whose talents and professional know- 
 ledge are well known and highly appreciated. 
 
 Of this Edition, I have revised the whole of the First Vol- 
 ume, inserting the cases recently decided, and making many 
 alterations which appeared to be improvements. The section 
 in the Second Volume, which treats of Actions against Com- 
 missioners of Sewers, is mine : and, I believe, it is the first 
 which has been written on that subject.
 
 IV ADVERTISKMENT. 
 
 The Other additions to the Second Volume have been 
 made entirely by my co^idjutor. All the important chapters 
 arc much enlarged. Many |)irt3 are entirely new : among 
 which may be mentioned, the chapter on actions by Com- 
 missioners of Bankrupts ; several heads in the chapter on 
 Policies of Insurance ; and the articles on Carriers, on the 
 Special Pleas in Assumpsit and Actions of Trespass, on the 
 Pleas in Abatement, on the Plea of Tender, and the Plea of 
 the Statute of Limitations. The chapters on Bills of Ex- 
 change, on the Statute of Frauds, and the section on the 
 Action of Trespass against the Person, have been recast, and 
 novv' appear in a more convenient and better form. The 
 new notes which have been introduced in the Second Vol- 
 ume, are the result of extensive research, and will be found 
 of great value. (a) 
 
 Whitehall, January S, 1829. 
 
 (a) For th3 preface by the American Editors of the first volume, and a list 
 of the books consulted by them, seo the first volume of the Notes.
 
 C O N T E N T S 
 
 OF 
 
 BOOK r HE FIRS T 
 
 PART THE FIRST. 
 
 C II A P I . 
 
 Page 
 
 Of the Attendance of Witnesses - - - 2 
 
 Attendance in Civil Cases - - - 2 
 
 Subpoena ad testijicandum - - - 2 
 
 Subpoena duces tecum - - - - 3 
 
 Service of Subpoena - - . . 4 
 
 Privilege from Arrest - . . - - 4 
 
 Habeas Corpus ad testificandum - - 5 
 
 Payment of Expenses - - . . Q 
 
 Remedies for Non-attendance ... 7 
 
 Attendance in Criminal Cases - - - 8 
 
 Process for securing such Attendance - - 8 
 
 Compensation in Criminal Cases • - 9 
 
 Compensation in Cases of 3Iisdemcanors - 12 
 Attendance before Comr,ii$sioners of Bankrupt-) 
 Justices of the Peace, Courts-martial, and 
 
 Commissioners of Inclosure - - 13, 14 
 
 Witness abro^ — how to proceed - - 14 
 Material Witness absent — Motion ffir putting 
 
 of the Trig.1 16
 
 VI 
 
 CONTENTS. 
 
 CHAP. II. 
 
 Page 
 
 Of the Incompetency of Witnesses from Want of 
 
 Understanding - - - - - 17 
 
 General Rule as to Credibility and Competency • 17 
 The several Grounds of Incompetency - - 18 
 
 Idiots — Lunatics - - - - - -13 
 
 Children 19 
 
 Declarations of Children - - - - 19 
 
 Confirmatory Evidence - - - - 20 
 
 CHAP. HI. 
 
 Of Incompetency from Defect of Religious Prin- 
 ciple _ . - . . 20 
 
 Principle of the Rule - - - - - 21 
 
 Atheists — Infidels - 21 
 
 Form of Sivearing - - - - 22 
 
 Examination previous to Swearing - - - 23 
 
 Examination as to Religious Opinions - - 24 
 
 Quakers. (Vide st. 9 6^. 4, c. 32, in Appendix) 24 
 
 Excommunication - - - - 26 
 
 CHAP. IV. 
 Of Incompetency of Witnesses from Infamy - 27 
 
 Infamia juris — Infamiafacti - - - 27 
 
 Sect. I. What Offences incapacitate 5 and of 
 
 the Mode of restoring Competency 28 
 
 What Crimes disqualify - - - - 28
 
 CONTENTS. 
 
 Page 
 
 Treason, Felony, Crimen falsi, Conspiracy, Sfc. 28 
 
 Infamous Judgment — Infamous Punishment - 30 
 
 Proof of Judgment - - - - - 30 
 
 Reversal of Judgment - - - - - 31 
 
 Competency , how restored - - - - - 31 
 
 1. Purgation - - - - 31 
 
 2. Benrjii of Clergy ... .32 
 
 Proof of Clergy - - - - 32 
 
 3. Effect of Suffering Punishment - - 33 
 
 Benrfii of Clergy abolished - - 34 
 
 4. Pardon - - ... 35 
 
 Proof of Pardon - . - 35 
 
 vu 
 
 Sect. II. Of the Admissibility of Accomplices SiS 
 
 General Rule - . -, - - 36 
 
 Approvement ...... - 37 
 
 Modern Practice - - - . . - 38 
 
 Implied Compact tcith Accomplices - - - 38 
 
 Rule for admitting Accomplices - - - 39 
 
 Confirmatory Evidence ... - - 41 
 
 Associates, Informers - - - - - 42 
 
 Party invalidating an Instrument - - 43 
 
 CHAP. V. 
 
 Of the incompetency of Witnesses from Interest 4-5 
 
 Principle of the Rule - - - - - 45 
 
 Sect. I. Of the Nature of the interest which 
 
 disqualifies 46 
 
 General Rule - - 46 
 
 What is not such an Interest as disqiudifiei • 47 
 
 Witness in same Situation as Party - - 47 
 
 Examples of competent Witnesses - - 48 
 
 Insurer in Policy — Vendor of Estate —
 
 CONTENTS. 
 
 Page 
 Dormant Partner — Subtenant — Rever- 
 sioner — Captain of Ship — Party injured 
 in Prosecution for Perjury — Borrower in 
 case of Usury — Persons liable to Infor- 
 mation of Action — Bond Security for 
 
 Administrator Executor, Trustee 
 
 Person believing himself interested — 
 Honorary Obligation - - - 48 — 54 
 General Rule as to interested Witness - 55 
 
 T. Interest, where the Verdict would be Evidence 
 
 for or against the Witness • • - 56 
 
 Examples of incompetent Witnesses - - 56 
 Servant Broker — Lan dlord — Com- 
 moners and Persons Claiming the same 
 Right, under a Custom, or Usage — Ten- 
 ant in Possession — Persons liable to 
 Costs, as bail — Sheriff's Officer — Pro- 
 chein Amy — Partners — Drawer of Ac- 
 commodation Bill — Agent — Co-obligor 56 — 6i 
 TI. Interest, though Verdict cannot be used - - 63 
 Residuary Legatee — Underwriters — Wit- 
 ness discharging his own Debt — Benefit 
 or Loss, depending on the Event — Devisee 
 —Heir — Remainder-man — Wi tness prov- 
 ing himself Tenant in Ejectment - 63 — 65 
 Degree of Interest - - - - - 65 
 Interest on both Sides - - - - - 66 
 Examples — Captain of Ship — Priority 
 of Demise — Acceptor, Payee, Joint ma- 
 ker — Partner - - - - 66 — 67 
 
 Sect. 11 Of the Rule on the Subject of Inter- 
 est considered with reference to tfie 
 Parties in the cuh - - - 6.) 
 
 Party to the suit incompetent - - - 69 
 
 Exceptions to the General Rule - - - 69 
 
 Party not compellable to give Evidence - - 72 
 
 Co-Plaintiff Witness against another - - 72
 
 CONTENTS. ix 
 
 Page 
 
 Co-defendant when competent for another - - - 73 
 
 Co-defendant pleading Bankruptcy - - - - 74 
 
 Co-defendant submitting and fined - - - - 74 
 
 Defendant suffering Judgment by Default - - 74, 7o 
 
 Witness made Defendant hy Mistake - - - - 76 
 
 Sect. IIL Of the Rule on the Subject of Interest, 
 considered with reference to Husband or Wife 
 of the Party. 76 
 
 General Rule . . . . 7(j 
 
 Their incompetency against each other - - 76 
 
 Their Incompetency for each other - - - 81 
 
 Their Declarations or Letters - - - 81, 82 
 
 Extent of the Rule - - - - - 82 
 
 Exceptions to (he General Rule - - - 83 
 
 1. In Prosecution on Stat. 3 II. 7. - - - 84 
 
 2. In Prosecution for Bigamy - - - 84 
 
 3. In case of off'ence against the person - - 84 
 
 4. Where the Wife is Agent for the Party - - 85 
 
 5. Examination of Bankrupt's Wife - - - 86 
 
 6. On cippeaLagainst Order of Bastardy - - 86 
 
 7. In action between third Persons - - - 87 
 Evidence of Woman cohabiting as Wife - - - 88 
 
 Sect. IV. Of the Effect of Admissions by a Party to 
 
 the Suit, or by his Agent, against the 
 
 Party's Interest - 89 
 
 Admissions of a Party to the Suit - - - - 89 
 
 Admission of persons nominally parties - - - 90 
 
 Admission by guardian of the party - - - - 89 
 
 Admission by partner of the party - - - - 92 
 
 Declarations by Co-trespassers - - - - - 93 
 
 Acts and declarations of Co-conspirator - - - 94 
 
 Statement by Agent of the party - - - - 99 
 
 Proof of Agency ... .... 103 
 
 Vol. I. B
 
 CONTENTS. 
 
 Page 
 Admission by Attorney oj party - - - - 105 
 
 Admission by Under Sheriff • - - - - 106 
 
 Admission of Debt - - - - - 107 
 
 Admission by Sheriff's Officer - - - - - 106 
 
 Effect of Admission - - - - - -107 
 
 Notice to quit not objected to — its Effect - - - 108 
 Offer of Terms, byway of Compromise - - - 108 
 
 Limitation of Bule 109 
 
 Whole of admission taken together - - - - 110 
 
 Sect. v. Of the Admissibility of the Confession of 
 
 a Prisoner against himself - - - 110 
 
 Voluntary Confession - - - - - - -llO 
 
 General Rule - - - - - - - -110 
 
 Parol Eiidcnce of Confession - - - - - 113 
 
 Mode of taking an Examination • - - - 113 
 
 Signing of Examination - - - - - -114 
 
 Confession not evidence against others - - " - 115 
 
 Discoveries in consequence of Confession - - - 116 
 
 Confessions 171 case of Treason - - - - -117 
 
 Principle of the Rule - - - - - -118 
 
 ProoJ of Confession - - - - - --119 
 
 Sect. VI. Of the Competency of the party injured 
 
 in Criminal Prosecutions - - 119 
 
 General Rule and Examples - - - - - 1 19 
 
 Exception in case of forgery - - - - - 121 
 
 Prosecutor in such Case, when competent ... 122 
 
 Reason of the Exception - - - - - - 123 
 
 Sect. VII. Of certain Exceptions to the general 
 
 Rule on the Subject of Interest - - 125 
 
 Informers - - 125 
 
 Inhabitants of Counties, Parishes, Sfc. - - . 126
 
 CONTENTS. 
 
 Persons entitled to Rewards 
 Agents, Servants, J^c. - 
 
 Page 
 129 
 129 
 
 XI 
 
 Sect. VIII. Of the Means by which the Com- 
 petency of an interested witness 
 
 may be restored. - - - IS I 
 
 Objection lohcn, and how, taken - - - 131 
 
 Examination on voire dire as to Writings - 132 
 
 Objection tclicn, and how, removed - 132, 133 
 
 Competency restored by Release - - - 133 
 
 by Payment - - 133 
 
 General Release - - - - - 134 
 
 Release by Guardian - - - - 134 
 
 Release by Co-obligee - - - - 134 
 
 Release to Co-obligor - - - - 134 
 
 Release on Trial for Forgery - - - 135 
 
 Release by Residuary Legatee - - - 135 
 
 Member of Corporation, when competent - - 136 
 
 Release, when unnecessary - - - 136 
 
 1. Where Witness offers to release - - 136 
 
 2. Where Interest created fraudulently - 137 
 
 3. Where Interest equal on loth Sides - 140 
 
 CHAP. VI. 
 
 Of the Admissibility of Counsel, or Solicitor - 140 
 
 General Rule - - - - - 140 
 
 Waiver of Privilege . . . . 141 
 
 Production of Deed or other Writing - - 141 
 
 Rule in Prosecutions . _ - - 142 
 
 Extent of the Rule - - - - 143 
 
 Interpreter — Agent - - - - 144 
 
 Confidential Cominunications - - - 144 
 
 Oath of Office - - - - - 145 
 
 What facts mail be proved by Counsel or SoUcilor 146
 
 CONTENTS. 
 
 CHAP. VII 
 
 Page 
 or certain General Rules of Evidence - - 148 
 
 Sect. I. Of the Number of Witnesses for the 
 
 Proof of a Fact - - - 150 
 
 The General Rule . - - . 150 
 
 In Trial for Perjury - - - - 151 
 
 In Trial for Treason - • • - 152 
 
 Rule in Courts of Equity ... 154 
 
 Rule in Ecclesiastical Courts - - - 155 
 
 Sect. II. Of the Nature of Presumptive Evi- 
 dence. _ _ _ - 155 
 
 Circumstantial Evidence - - - 155, 156 
 
 Presumption of Laio — of Fact - - - 157 
 
 Prcs7i7nption of Legitimacy - - - 158 
 
 Presumption of Payment - - - - 159 
 
 Presumption of Release of Quit-rent - - 160 
 
 Presumptive Evidence of Property - - - 160 
 
 Presumptive Evidence oj Grants . . - 161 
 
 Presumptive Evidence of Endowments - - 162 
 
 Adverse Possession for Twenty Years - - 163 
 
 Circumstantial Evidence in Criminal Cases - 166 
 
 Discrepancy in Testimony oJ Witnesses - - 167 
 
 Sect. ill. Evidence is to be confined to the 
 
 Points in Issue . .169 
 
 Relevancy of Proof .... 169 
 
 Admissions on Record, Ejfeet of • - - 170 
 
 Proof of other Transactions ■ - - 171 
 
 Proof of Customs in other Manors^ 6fc. - - 173 
 
 Evidence of Character • - - - 176 
 
 Rule in Criminal Cases — Examples - - 178 
 
 Proof of other Acts, as Evidence of Intention - 179
 
 CONTENTS. xiii 
 
 . ^^^^ 
 Acts and declarations of Prisoner, when Evidence for him 181 
 
 Judgment by Default — Us Effect - - - 186 
 
 Payment of Money into Court - - - - 187 
 
 Proof of Payment into Court - - - 189 
 
 Bill of Particulars— Its Effect - - - 189 
 
 Error in Particular - » - - - 191 
 
 Delivery oj Particular . _ . - 193 
 
 Proof of Particular - - : . - 193 
 
 Sect. IV. The Affirmative of the issue is to 
 
 be proved - - - - 194 
 
 General Rule and Examples - - i- - 194 
 
 Charge of Breach of Duty - - - - 195 
 
 Presumption of Law - - - - - 197 
 
 Isstie on Death of a Person - - - - 197 
 
 Fact peculiarly loithin Party's Knowledge - - 198 
 
 Sect. V. The substance only of the Issue need be 
 
 proved - ' - - - 200 
 
 Examples in Civil Cases . . - i 200 
 
 Examples in Criminal Cases ... - 202 
 
 Immaterial Averment - - - - - 204 
 
 Materialty of Averrnent ----- 205 
 When Averments may he struck out - - - 206 
 
 Variance in Proof of Contract - - - - 207 
 
 Variance in Proof of Prescription - - - 210 
 
 Variance in Proof of Deed - - - - 211 
 
 Variance in Proof of Record - - - - 212 
 
 Variance in Time ----- 214 
 
 Variance in Place - - - - -215 
 
 Sect. VI. The best Evidence is to be produced 
 
 which the Nature of the Case admits 217 
 
 Meaning of f^" Rn/r. n^'d Examples - - - 218 
 
 «
 
 XIV 
 
 CONTENTS. 
 
 Page 
 Proof of Insurance — Of registered Deed — Of 
 Discharge of Insolvent — Of Deed — Of written 
 Memorandum — Of Terms of Tenancy — Of Reso- 
 lutions at a Meeting - - 218—221 
 Rule considered, in provinix and disproving of Hand- 
 writing .... - - 224 
 Cases in which the best Proof is dispensed with - 226 
 ]. Ejilri/ in Public Books - - - - 226 
 2 Proof of being a Public Officer - - 226 
 3. Proof dispensed with by Party's Admission - 226 
 
 Sect. V'II. Hearsa) is not Evidence 
 
 229 
 
 General rule as to Hearsay 
 
 Testimony on a former Trial 
 
 Hearsay, part of res gesta 
 
 Principle of the Rule 
 
 Exceptions to the Rule 
 
 Dying Declarations 
 
 Hearsay on Question of Pedigree - 
 
 Declarations post litem motam 
 
 Hearsay as to Public rights 
 
 Hearsay as to Boundaries, Customs, S^c. 
 
 Hearsay as to private Rights 
 
 Old Leases, Rent Rolls, S^c. 
 
 Surveys of Manors - 
 
 Declaration against Interest 
 
 Rector's and Vicar's Books 
 
 Tradesman' s Books 
 
 229 
 230 
 231 
 234 
 234 
 235 
 238 
 241 
 248 
 249 
 251 
 252 
 254 
 255 
 260 
 263 
 
 CHAP. VIII. 
 
 Of the Examination of Witnesses 
 
 - 267 
 
 Examination as to Interest 
 Examination in Chief • 
 
 267 
 268
 
 CONTENTS. 
 
 Page 
 Leading Questions .... 268 
 
 Leading in Examination in Chief - - - 269 
 
 Cross-Examination ..... 272 
 
 Leading in Cross-Examination ... 275 
 
 Privilege of Witness in not ansxvering . - - 276 
 
 1. When the Anstvcr might subject to Penalties - 276 
 
 2. When it might suhject to a Civil Suit - - ^11 
 
 3. When it might subject to Forfeiture - - 278 
 
 4. When it might degrade Witnesses Character - 278 
 
 1 . Whether he is compellable to answer - - 280 
 
 2. Whether such Questions are legal - - 282 
 Privileged Communications .... 284 
 
 Rule as to Informers, ^c. ... 286 
 
 Rule as to Official Information - - . 287 
 
 Memorandum to assist Witness - _ . 289 
 
 Opinion of Witness ----- 290 
 
 Credit of Witness hrw impeached ■ - - 291 
 
 Proof of General Character - • - 291 
 
 Proof of Contradictory Statements - 293 — 306 
 
 Evidence in support of Character - . . 306 
 
 Party not to discredit his own witness - - - 308 
 
 Proof of Bad Character - - - -309 
 
 CHAP. IX. 
 
 i){ Bills of Exce|3tions, and Demurrers to Evi- 
 dence - - - 31 
 
 Bill of Exceptions - - - - - 311 
 
 Demurrer to Evidence - - - - -313
 
 xvi— XX CONTENTS. 
 
 PART THE SECOND. ^ 
 
 CHAP. I. 
 
 ** Page 
 
 Of Acts of Parliament - - - 316 
 
 Records - - - - - 316 
 
 Of the Effect of Records - - - 316 
 
 Acts oj Parliament - - - - 317 
 General Acts ----- 317 
 
 Preavihle of Acts - - - - 318 
 
 Public Act, when pleaded - - - 319 
 
 CHAP. II. 
 
 Of Verdicts and Judgments of Courts of Re- 
 cord ------ 320 
 
 Sect. 1. Of Verdicts and Judgments, consid- 
 ered with reference to the Parties 
 in the suit _ - - - 320 
 
 General Rule - - - - - 321 
 
 Effect of Judgment between same Parties - 32 1 
 
 Wlio the same Parties - - - 323 
 
 Who the real Parties - - - 324 
 
 Effect of Judgment between Privies - - 324 
 
 Verdict not Evidence against a stranger - 326 
 
 Verdict not Evidence for a Stranger - - 326 
 
 Exceptions to the Rule - - - - 327 
 
 1. Verdict as to customs, Tolls, Sfc. - - 327 
 
 2. Judgment of Courts of exclusive Jurisdiction 328 
 
 3. Judgment of Sessions in Appeals - - 329 
 
 4. Convictions . - - - 331 
 
 5. Judgment, Evidence by way of Inducement - 322
 
 CONTENTS. 
 
 Page 
 Sect. II, ^Of Verdicts and Judgments, consid- 
 ered with reference to the Sub- 
 ject matter of the Suit - - 33c} 
 
 General Rule - - - - . 333 
 
 Efect of former Judgment ... 334 
 
 Judgment in Ejectment - - - . 336 
 
 Sect. III. Of the Admissibility, in Civil Cases, 
 of Verdicts in Criminal Proceed- 
 ings SS^ 
 
 Sentence in Ecclesiastical Court - - . 335 
 
 Record of Conviction - - . . 337 
 
 Coroner's Inquest - - - . 337 
 
 Effect of Record of Conviction - - . 338 
 
 Record of Acquittal - - - - - . 340 
 
 GHAP. III. 
 
 Of the Judgment of Courts of Exclusive Juris- 
 diction - - - _ §40 
 
 Sect. I. Of Sentences in Ecclesiastical Courts 341 
 
 Sentence on question of Marriage - - 341 
 
 Sentence of Jactitation of Marriage - -342 
 
 Probate of Wills - - - - 343 
 
 Letters of Administration - - . 343 
 Sentence, how far Evidence in Criminal Proceed- 
 
 »«^^ - - - - 346 
 
 Sentence impeachable for fraud - . 346 
 
 Vot. I. 8 
 
 XXI
 
 xxii CONTENTS. 
 
 Page 
 Sect. II. Of sentences in Courts of Admiralty and 
 
 Foreign Courts. _ - - SA6 
 
 Sentence on Question of Prize - - - 346 
 
 Sentence of Foreign Courts of Admiralty . 347 
 
 Efect of such Sentence - - - 348 
 
 Sentence of other Foreign Courts - - 349 
 
 Action on Foreign Judgment - . - 350 
 
 Effect of Foreign Judgment . . . 353 
 
 Sect. HI. Of Judgments in rem in the Exchequer 
 by Commissioners of Excise, and by Col- 
 leges in the Universities - - - 354 
 
 Judgment of Condemnation in Exchequer - 354 
 
 Judgment in personam . - - - 354 
 
 Judgment hy Commissioners oj Excise - - 355 
 
 Acquittal in the Exchequer - . - 355 
 
 Sentence of Deprivation hy a College - - 356 
 
 General Rule, as to limited Jurisdictions - 357 
 
 CHAP. IV. 
 
 Of certain other Judicial Proceedings - - - 358 
 
 Sect. 1. Of Proceedings in Chancery - - 356 
 
 Decree ------ 358 
 
 Bill 358 
 
 Answer ------ 359 
 
 Depositions _ - - - - 363 
 
 Sect. II. Of Depositions, Kxaminations, Inqui- 
 sitions, and other Judicial Proceed- 
 ings - . - - 
 
 u 
 
 66 
 
 Depositions on Interrogatories - - - 366 
 
 Depositions in India - - - - 367
 
 CONTENTS. 
 
 XXlll 
 
 Page 
 Depositions before Justice of Peace - - 367 
 
 Deposition in cases of Misdemeanor - - 368 
 
 Depositions before Coroner - - - 371 
 
 Inquisitions, by Coroner, of Escheat, S^c. - 374 
 
 Examinations of Paupers, Sfc. - - - 376 
 
 Dipositions in Ecclesiastical Courts - - 378 
 
 Depositions before Commissioners of Excise - 378 
 
 Judgments of Inferior Courts ... 380 
 -Awards ------ 380 
 
 Certificates - - - - - 381 
 
 CHAP. V. 
 
 Of the Proof of Records and Judicial Proceed- 
 ings ----- 383 
 
 Records - - - 
 
 Public Acts of Parliament 
 Private Acts 
 Copies of Records 
 Verdict - - - 
 
 Postea - . - 
 
 Judgment 
 
 fVi-its - - . 
 
 Inquisitions 
 Common recoveries 
 Proceedings in Chancery 
 
 Decree 
 
 Ansicer 
 
 Depositions 
 Judgment in House of Lords 
 Proceedings in Inferior Courts 
 Probate oj Wills 
 Letters of Administration 
 Foreign Judgment 
 Award - - . 
 
 Foreign Laws 
 
 - 383 
 
 - 383 
 
 - 383 
 
 - 384 
 
 - 389 
 
 - 389 
 
 - 390 
 
 - 390 
 
 - 392 
 
 - 392 
 
 - 392 
 
 - 392 
 
 - 393 
 
 - 394 
 
 - 396 
 
 - 396 
 
 - 396 
 
 - 398 
 
 - 399 
 
 - 399 
 
 - 401
 
 xxir CONTENTS. 
 
 CHAP. VI. 
 
 Page 
 Of Public Writings not Judicial - - - 403 
 
 Domesday -hook ----- 403 
 Surveys of Ecclesiastical Benefices - - 404 
 
 Pope Nicholas's Taxation ... 404 
 
 Valor Beneficiorutn in reign of Henry VIII. - 404 
 Survey in Time of the Commonwealth ■ • 405 
 
 Inquisitlones nonarum - - . . 405 
 
 Journals of Parliament - - - - 406 
 
 Gazettes ---... 407 
 Parish Registers - - - - 408 
 
 Registers of Ships - - - - 411 
 
 Rate-hooks - - - - - 413 
 
 Rook for Parish Indentures - - - 413 
 
 Books of Public Offlces - - - - 413 
 
 Rolls of Manor Courts - - - - 417 
 
 Terriers - - - - - 419 
 
 Herald's Books - - - . - 421 
 
 Pope's Bull - . . - 421 
 
 Corporation Books - - - . 422 
 
 Histories ----,. 423 
 Proof of Entry in Public Books - - 424 
 
 CHAP. VII 
 
 Of the Inspection of Public Writings - - - 425 
 
 Records --.... 425 
 
 Copy of Indictment ..... 425 
 Inspection of Depositions - - . . 427 
 
 Proceedings of inferior Jurisdictions - - - 427 
 
 Parish Books and other Public Books - - 428 
 
 Rolls of Manor Court ' - - - . 429 
 
 Corporation Books ----- 430 
 Inspection, when not compelled ... 432 
 
 Proceeding for obtaining Inspection - - - 433
 
 CONTENTS. XXV 
 
 CHAP. VIIL 
 
 Page 
 Of the Proof of private Writings - - -^35 
 
 Sect. 1. C)f the Proof of Deeds, Agreements and 
 
 other Writings - - - - 435 
 
 Suhpcena duces tecum ... 436 
 
 Rule on Party to produce ... 436 
 
 Notice to Parti/ to produce ... 439 
 Proof of Writing being in the Party's 
 
 Possession .... 440 
 
 Calling for Papers after Notice - - 441 
 
 Notice when dispensed with - - 441 
 
 Deed in Court in Possession of the other 
 
 Party - - - - - 443 
 
 Proof of Notice .... 445 
 
 Proof of Deed produced under Notice - 448 
 
 General Rule — Exceptions - ' • 449 
 
 Secondary Evidence of Writings . - 452 
 
 Proof of Loss of Original - - 454 
 
 Wliat Secondary Evidence admitted - 457 
 
 Of ancient Writing - _ - 459 
 
 OJ lost Deed - - - - 464 
 
 Copy of Enrolment of Deed - - 461 
 
 ProoJ of Execution by subscribing Witness - 464 
 Execution of Powers ... 468 
 
 Proof of Execution by proving subscribing 
 Witness's Hand-writing ... 473 
 
 Proof of Execution, in absence of subscribing 
 Witness . . - - . 475 
 
 Exceptions to the General Rule - - 477 
 
 1. Old Writings - - - ,477 
 Custody of Old Writings - - 479 
 
 2. Deed produced under Rule of Court - 483 
 
 3. Deed produced by the other Party - 483 
 Proof of Hand-writing in general - - 483 
 
 Comparison of Hand-writing - - 490
 
 ^^vi CONTENTS 
 
 Page 
 Proof of ancient Writings - - . 491 
 
 Evidence as to Genuineness of Writing - 492 
 
 Sect. II. Of the Proof of Wills - - ' - 494 
 
 Form oj Wills - - - - - 494 
 
 In case of Copyhold Land - - - 494 
 
 Competency of attesting Witness - - 494 
 
 Proof of Contents of Will - - -496 
 
 Proof of Execution by subscribing Witness - 496 
 
 Signing of Testator - - - 497 
 
 Attestation .... 599 
 
 Presence of Testator ... 500 
 
 Witness itnpeacJiing the Execution • - 502 
 
 Proof of Old Wills . - -503 
 
 CHAP. IX. 
 
 Of Stamping, as a requisite of Written Instru- 
 ments ----- 604 
 
 General Rule ----- 504 
 Proof of the Transaction tcitkout Writing - 504 
 Foreign Instrument . - - - 505 
 
 Denomination of Stamp - _ _ 5O6 
 
 Several Stamps, ichcre necessary - - 508 
 
 Alteration of Bill of Exchange - - 511 
 
 Alteration of Policy of Insurance - - 513 
 
 Alteration to correct Mistakes - - - 515 
 
 Unstamped Instrument , when Evidence for col- 
 lateral Purposes - - - - 518 
 Writing lost — Stamp, when presumed - - 522 
 Defect of Stamp, how cured - - - 523 
 Stamp on Agreements - - - - 524 
 Exemptions . . - - . 526 
 
 1 . Label or 3Iemorandum of certain Insurances 526 
 
 2. Memorandum or agreement for granting a 
 Lease of Land, Sfc. • - - ^26
 
 CONTENTS. xxvii 
 
 Page 
 
 3. Memorandum or Agreement for the hire of a 
 Laborer, Sfc. - • - - - 527 
 
 4. Memorandum, Letter, or Agreement for or re- 
 lating to the Sale of Goods, Sfc. - - 527 
 
 5. Memorandum or Agreement for Wages between 
 
 the Master and Mariners of certain Ships - 530 
 
 6. Letters containing Agreements in respect of 
 any Merchandise, or evidence of such Agree- 
 ment, (^'c. . - - - . 530 
 
 CHAP. X. 
 
 Of the Admissil)ility of Parol Evidence to explain, 
 
 vary, or discharge Written Instruments 631 
 
 Sect. I. Of the Admissibility of Parol Evidence 
 
 to explain Ambiguities - - > 531 
 
 Latent Ambiguity - - - - 531 
 
 Mistake in Names - - . . 532 
 
 Parol Evidence, to give Efect to Wills - - 533 
 
 Patent Ambiguity - - _ . 539 
 
 Uncertainty in Devise - - - . 533 
 
 Omission of Name in Will - - . 539 
 
 Omission in Written Instruments - . 540 
 
 Usage erplanatory of Ancient Charters and Deeds 540 
 Evidence of the Situation or estate of the Party 543 
 
 Skct. 11. < )f the Admissibility of Parol Evidence 
 to vary or discharge Written instru- 
 ments - - - _ 547 
 
 Wills - - - - - - 548 
 
 Deeds ----- - 543
 
 xxviii CONTENTS. 
 
 Page 
 Proof of another Coni deration, when ad- 
 missible ----- 549 
 
 Proof of a different Consideration, in case of 
 
 illegal Transactions - ♦ - 551 
 
 Proof of Delivery of Deed at a different 
 
 time . - . - . 553 
 
 Proof of Customary Right, Sg-c. not express- 
 ed in Lease . - - - 553 
 Proof not admissable to vary the time of 
 holding ----- 554 
 
 Policies of Insurance - - - - 554 
 
 Charter-parties - - - - - 554 
 
 Promissory Notes, Sgc. - - - - 555 
 
 Contract for seaman's Wages - . - 656 
 
 Usage of Merchants, to explain mercantile Con- 
 tracts ----- - 556 
 
 Agreements within Statute of Frauds - - 559 
 
 ^Igreements not within statute of Frauds - 662 
 
 Proof of Collateral Facts to show Intention - 562 
 Discharge of Simple Contract by Parol - - 563 
 
 Sect. III. Of the Rule in Courts of Equity, re- 
 specting the Admissibility of Parol 
 Evidence - . - 566 
 
 General Rule ----- 567 
 Rule with Respect to the Defendant on a Bill for 
 
 Specif c Performance - - - - 568 
 
 Rule with respect to the Plaintif' - • - 570 
 
 Rule in case of Part-performanct - - 575 
 
 Mistakes in Deeds, Sfc. when rectified - - 576 
 
 Trusts in Equity, when raised by Parol Evidence 577
 
 TABLE 
 
 07 
 
 THE CASES CITED. 
 
 A Page 
 
 BBOT V. Massie 538 
 
 V. Plumbe 465 
 
 V. Sinitli 210 
 
 Abel V. Potts 415 
 
 Abery v. Dickenson 428 
 
 Abigiiye v. Clifton 381 
 Abrahams q. t. v. Bunn 51, 120 
 
 123 
 
 Acerro v. Petroni 2(>9 
 
 Ackeiley v. Parkinson 357 
 
 Ackland v. Pearce 445 
 Adam V. Kerr 467, 473, 474 
 
 Adams V. Davis 129 
 
 V. A vans 251 
 
 ■ — V. Fairbairn 525 
 
 V. Lingard 144 
 
 Adamthwaite v. Syne 366 
 
 Addington v. Clode 4;j0 
 
 Addison v. Overend 210 
 Addy v. Grix 499, 500 
 
 Aickle's case 442 
 
 Akehurst's case 135 
 
 Alban v. Prilcbett 81 
 Alexander v. Gibson 99,309 
 
 Allen V. Tapp 431 
 
 Allen's case 389 
 
 Allen V. Dundas 344 
 
 Allottv. Wilkinson 254 
 
 Alner v. George 159 
 
 Alsop V. Bovvtrel 382 
 
 Althatn's case 532 
 Altliam (Lord) v. Earl of 
 
 Anglesea 363 
 
 Alves v. Bunbury 399 
 
 Alves V, Hodgson 605 
 
 Ambrose v. Clindon 232 
 
 Amery v. Rogers 412 
 
 Vol. I. 
 
 Page 
 Ames V. Hill 526 
 
 Amery v. Long 3, 436 
 
 Amitie, Villeneuve, case of 54 
 Anderson v. Sir W. Hamilton 
 
 287 
 
 V. May 446 
 
 V. Pitcher 557 
 
 Sandson 85, 86 
 
 Andrews v. Palsgrave 188 
 
 V. Dobson 533, 533 
 
 Anglesea cause 245 
 
 Anscoinb v. Shore 57 
 
 Ansley v. Birch 16 
 
 Anstey v. Dowsing 133, 137, 
 
 495, 496 
 Antram v. Chase 400 
 
 Anirenlem v. Clark 212 
 
 Appleton V. Lord Braybrook 
 
 399 
 Arding v. Flower 4 
 
 Armorie v. Delamirie 160 
 
 Armstrong v. Hewitt 260 
 
 Armstrong and Lisle 32 
 
 Arnfield v. Bate 208 
 
 Arnold x. Rivout 212 
 
 Arundel's (Lord) case 260 
 
 Ashby V. Power 325, 361 
 
 Aslin v. Parkin 324, 336 
 
 Atcheson v. Everett 25 
 
 Atherford v. Beard 429 
 
 Athol's (Duke of) case 328 
 
 Aikins V. Hatton 419 
 
 Attorney-General v. Bowman 
 
 176 
 
 V, Bulpit 268 
 
 V. City of Cov- 
 entry 430 
 V. Foster 543
 
 xn 
 
 TABLE OF THE CASES CITED. 
 
 Pajre 
 Attorney-General v. Griffith 26 
 
 V. Grote 545 
 
 ■ V King 3-55 
 
 — V Le Mer- 
 chant 3, 439 
 
 V. Parker 542 
 
 ■ V. Theakstone 
 
 407 
 Atwood's case 3G, 41 
 
 Audley's (Lord) case 84 
 
 Auriel v. Smith 424 
 
 Austin V. Willes 602 
 
 Aveson v. Lord Kinnaird 83, 233, 
 
 236 
 Ayrey v, Davenport 390 
 
 Azyre's case 84 
 
 B 
 
 Backhouse v. Middleton 365 
 
 Bacon's case 121 
 
 Badcock's case 34,86 
 
 Baglie v. Wylie 395 
 
 Bagot (Lord) v. Williams 334 
 Bagshaw v. Bp. of Bangor 405 
 Baikie v. Chandless 461, 464 
 
 Baillie v. Wilson 51,52 
 
 Baker v. Dewey 159, 549 
 
 V. Fairfax 364 
 
 V. Jardine 509 
 
 V. Morley 81 
 
 V. Pain 577 
 
 V. Sweet 395 
 
 V. Tyrwhit 63, 1 36 
 
 Baker's case 314 
 
 Baldney v. Ritchie 440 
 
 Ball V. Bostock 62 
 
 V. Dunsterville 467 
 
 Ballard v. Dyson 165 
 
 Balmirino's (Lord) case 215 
 
 Ballutti V. Serani 171 
 
 Bambridwe's case 235 
 
 Banbury Peerage, case of 158 
 243, 358, 359 
 Bank Prosecutions, case of, 224 
 Barber V. Holmes 413 
 
 Baring v. tlaggett 347, 348, 349 
 - — V. Royal Ex. Ass. Comp. 
 
 348 
 Barker v. Sir Woolstan Dixie 83 
 
 V. Macrae 130 
 
 Barlow v. Vowel 137, 138 
 
 Barnes v. Lucus 451, 483 
 
 Page 
 Barnes v. Mnwson 251 
 
 Barnstable (Corporation of) 
 
 V. Latliey 431, 433 
 
 Barrett v. Gore 70 
 
 Barron V. Grillard 81,362 
 
 Barrow v. Humphreys 7 
 
 V. Greenough 
 
 Barry v. Alexander 
 
 V. Babbiiigton 
 
 V. Nugent 
 
 Barrymore (Lord) v. Taylor 
 Barstow v. Kilvington 
 Barthon v. Loughrnan 
 Barilet v. Pickersaill 
 
 Barzillay v. Lewis 
 Bateman v. Phillips 
 Bates V. Grabham 
 Bath (Earl of) v. Battersea 
 V. Montague 
 
 578 
 438 
 255 
 527 
 110 
 577 
 290 
 120, 121, 
 
 339, 559 
 348 
 
 430, 437 
 555 
 359 
 
 Bathe v. Taylor 
 Bauerman v. Radenius 
 
 39,47 
 512 
 69,90 
 92,99 
 Baxter v. Brown 227 
 
 Bayley v. Lloyd 134 
 
 Bay! is v. Attorney-General 539 
 Baynham v. Guy's Hotpilal 547 
 Bealy v. Shaw 165 
 
 Beasly v. Magrath 362 
 
 Beaumont v Brandy 576 
 
 V. Fell 632, 535 
 
 V. Field 534 
 
 Beaver v. Lane 212 
 
 Beckwith v. Sydebolham 290 
 Bedell's case 549 
 
 Bedford v. Birley 95 
 
 Bedle v. Beard 161 
 
 Beebee v. Parker 249 
 
 Beeching v. Gower 267 
 
 Beer v. Ward 477, 492 
 
 Beggalley v. Jones 257, 258 
 
 Bell V. Ansley 92 
 
 V. Harwood 67 
 
 T. Smith 63 
 
 Benjamin v. Porteus 129 
 
 Bennet v. Hertford (Hun- 
 dred oQ 70 
 
 V. Francis 187 
 
 V. Neale 163 
 
 V. Skeffington 163 
 
 V. Watson 8 
 
 Benson V. Olive 325, 161, 363 
 Bent V. Baker 46, 47, 55, 137
 
 TABLE OF THE CASES CITED. 
 
 xxxt 
 
 Page 
 Bentley v. Cook 77 
 
 Berkeley Peerage case 238, 243 
 307, 359, 304 
 Berrnon v, Woodbridge 3G0 
 
 Bernard (Lord) v. Saul 319 
 
 Bernard! v. Motteux 347, 348 
 Berry v. Bauner 328 
 
 Berry man v. Wise 226, 227 
 
 Bertie v. Lord Falkland 548 
 
 V. Beaumont 477, 482 
 
 Berwick's case 1 17 
 
 Beltison v. Bromley 52, 495 
 
 Bevan q. t. v. Williams 227 
 
 Bevan v. Jones 213 
 
 Bevis V. LindfeU 186 
 
 Biddulph V. Ather 328 
 
 V. St. John 154 
 
 Biggs V. Laurence 99 
 
 Biilers v. Bowles ISO 
 
 Biilmore's case 39 
 
 Binstead v. Coleman 559 
 
 Bircli V. Depeyster 556, 557 
 
 Bird V. Appleton 349 
 
 V. Tiiompson 131 
 
 Birt V. Barlow 409 
 
 V. Kirshaw CI 
 
 Black V. Holmes 288 
 
 Blackburn v. Scholes 187 
 
 Blacket v. Lowes 251 
 
 Blackett v. Weir GO 
 
 Blackhani's case 343 
 
 Blake v. Lawrence 191 
 
 Blak«'s case 563 
 
 Blakey v. Porter 437 
 
 Bland v. Ansley 64, 83 
 
 Blandford v. De Tastet 7 
 
 Blatch V. Archer 391 
 
 Bloxam v. Elsie 229 
 
 V. Hubbard 210 
 
 Blundell v. Howard 175 
 
 Blyth V. Bamplon 209 
 
 Boardman V, Jackson 110 
 
 Boehm V. Campbell 506 
 
 Boehilinck v.^Inglis 401 
 
 V. Schneider 401 
 
 Bolton V. Gladstone 347, 348, 349 
 
 V. Bp. of Carlisle 457 
 
 Bond V. Seawell 500 
 
 Bootle V. Blundell 497, 445 
 
 Borthwick v. Carruthers 199 
 
 Boson V. Sanford 210 
 
 Botham v. Swingler 132, 133 
 
 Bottomly t. Wilson 
 Bourne v. Turner 
 Bowditch V. Morley 
 Bowen v. Ashley 
 Bowerman v. Sybourne 
 Bowie V. Langworihy 
 Bowles V. Johnson 
 Bowman v. Manzelman 
 Bowman v. Nichol 
 Bowsher v. Cally 
 Boyle V. Boyle 
 Bradbury v. Grinseil 
 Braddick v. Thompson 
 Bradwin v. Harpur 
 Bramwick v. Lucas 
 Bratidreth's case 
 Brangam's case 
 Brard v. Ackerman 
 Brazier^s case 
 Breedon v. Gill 
 Breton v. Cope 
 Brett V. Rigdem 
 Brewer v. Palmer 
 Brewster v. Sevvel 
 Brice v. Smith 
 Brickett's case 
 Bridgman v. Jennings 
 Bristow V. Wright 
 Broadhurst v. Baldwin 
 Brock V. Kent 
 Brodie v. St. Paul 
 Broomwick's case 
 Brook V. Willett 
 Brookbard v. Woodley 
 Broomfield v. Jones 
 Broughton v. Harper 
 
 Page 
 
 61 
 
 56 
 
 213 
 
 508 
 
 353 
 
 466 
 
 6 
 
 443 
 
 512 
 
 106 
 
 339 
 
 166 
 
 563 
 
 532 
 
 147 
 
 95 
 
 426 
 
 141 
 
 19, 20, 233 
 
 378 
 
 414, 424,465 
 
 548 
 
 504 
 
 455 
 
 499, 501 
 
 42 
 
 254 
 
 206, 208 
 
 188 
 
 101 
 567 
 S69 
 211 
 
 490 
 206 
 
 78 
 
 Brounker (Ld) v. Atkins 325, 423 
 
 Brown v. Brown 75 
 
 V. Browne 366 
 
 V. Corporation of 
 
 London 136 
 
 V. Bullen 357 
 
 v. Crashaw 35 
 
 V. Fox 75 
 
 . V. Franklyn 346 
 
 V. Hodgson 192 
 
 V. Jacobs 213 
 
 V. KniU 212 
 
 V. Rose 438 
 
 V. Sayce 208 
 
 ■ V. Selwin * 648 
 
 V. Watts 100
 
 XXXU 
 
 TABLE OF THE CASES CITED. 
 
 Pa ore 
 
 Brown ats. 366 
 
 Crownsord v. Edwards 336 
 
 Brune v. Rawlins 243, 492 
 
 Brunton's case 38 
 
 Bryan v. WagstafF 439 
 
 . V. Winwood 174 
 
 Brydges v. Duchess of Chan- 
 
 dos 255, 548 
 Buchanan v. Rucker 353, 309, 
 402, 506 
 Buckhouse & Crosby's case 565 
 Buckland v. Tankard 69 
 Buckler v. Wiilerd 548, 551 
 Buckley v. Smith 473 
 Buckworth's case 230 
 Bullen V. Michell 255. 260, 312, 
 404, 405, 459, 477, 479 
 Bunting's case 34 I 
 Burdon v. Browning 121, 339 
 Burleigh V. Slibbs 
 Burnet v. Lynch 
 V. Taylor 
 
 89, 443 
 
 451 
 
 473 
 
 49 1 
 
 33, 36 
 
 289 
 
 350, 352 
 
 476 
 
 473 
 
 101 
 
 66, 72 
 
 438 
 
 48 
 
 41^ 126 
 
 29 
 
 211 
 
 ■ 685 
 
 442 
 
 Butchers' Comp. v. Jones 132 
 Butler V. Carver 132, 303 
 
 's case 200, 442 
 
 Butt V. Barlow 577 
 Buttrick V. Allen 353 
 Buxton V. Bed all 528, 529 
 Byam v. Booth 395 
 Byne (ex parte) 5 
 V. Jlooro 214 
 
 Caffy's case 121 
 
 Call V. Dunning 465 
 
 Calliard v. ^aughan ]5. 17 
 
 Burr V. Harper 
 Burridge's case 
 Burrough v. Martin 
 Burrows v. Jemino 
 
 • V. Lock 
 
 Burt V. Walker 
 
 V. Palmer 
 
 Burton V. Hinde 
 
 V. Neville 
 
 Busby V. Greenslate 
 Bush V. Railing 
 Bushel V. Barret 
 Bushwood V. Bond 
 Butcher's case 
 V. Jarret 
 
 Pag« 
 Callow V. Lawrence 513 
 
 Calihorpe v. Gough 503 
 
 Calvert v. Bovil 349 
 
 V. Abp. of Canterbtiry 
 
 263, 265 
 Cambridge v. Rous 548 
 
 Catnden V, Anderson 411 
 
 Camerton v. Light foot 380 
 
 Campbell v. Christie 515 
 
 V. French 438 
 
 V. Tvvemlow 88, 380 
 
 V. Wilson 164 
 
 Cardwell v. Martin 612 
 
 Careless v. Careless 532 
 
 Carey v. Askew 494 
 
 V. Adkins 66 
 
 Carlisle (Mayor of) v. Blamire 
 
 89, 443 
 
 V. Trears 208 
 
 Carpenters' Comp. v. Hay- 
 ward 18, 51, 58 
 Carr v. Heaton 164, 325 
 Carrington (L<1.) v. Payne 502 
 Carter v. Pearce 
 
 V. Pryke 
 
 Cartidge v. Griffiths 
 Cartwright v. Williams 
 Cass's case 
 Casson V. Dade 
 Castile v. Bainbridge 
 Casllemaiii's (Ld.) case 
 
 Casilelon v. Turner 
 Cater v. Price 
 Cates V. Hardacre 
 
 q. t. V. Winter 
 
 Cator V. Stokes 
 
 Catt V. Howard 
 Cavan v. Stewart 
 Cazenove v. Vaughan 
 Celia's case 
 Chad V. Tilsed 
 Chadwick v. Bunning 
 Chadwick v. Sills 
 Chamberlain v. Porter 
 Champian v. Atkinson 130, 17S, 
 
 174 
 Chandler v. Thompson 165 
 
 Chapman v. Poynton 6 
 
 V. Graves 41, 72, 75 
 
 V. Beard 227 
 
 V. Smith 249 
 
 52 
 172 
 212 
 134 
 111 
 501 
 26 
 32, 35, 
 291 
 539 
 500 
 276 
 3, 439 
 391 
 93 
 853, 399 
 366, 395 
 29, 32 
 541 
 386 
 525 
 506
 
 TABLE OF THE CASES CITED. 
 
 Page 
 Chadman V. Cowlan 253,419 
 Charlesworth's case 29 
 
 Charnock's case 3G 
 
 Chater v. Hawkins 30 
 
 Chatfield V Fryer 163, 2o0 
 
 Chaurand v. Angerslein 290, 
 55G, 557 
 Chelsea Waterworks (Gov. 
 
 of) V. Cowper 477 
 
 Cheyne v. Coops GO 
 
 Cheyney's (Lord) case 532, 5 18 
 Cholrnondeley v. Clinton 53S 
 Christian v. Coomb 293 
 
 Christie v. Secretan 347, 348 
 Churchill V. Wiikins 208 
 
 City of London, case of 6G 
 
 Clancy's case 29 
 
 Clanricard's (Lord) case 422 
 Clanricard (Lord) v. Lady 
 
 Denton 57 
 
 Clarke v. Saffery 70, 2G9 
 
 V. Grant 5G9 
 
 V. Gray 189, 209 
 
 V. Shea 131 
 
 Clarkson v. Hanway 5.53 
 
 V. Woodhouse 253 
 
 Clay V. Willan 189 
 
 Blegg V. r.,evy 60-5 
 
 Clerk V. Bedford 265 
 
 Clifford V. Burton 86 
 
 V. Taylor 439 
 
 Clifton V. Wal(nesley 547, 548 
 Clothier v. Chapman 2-51 
 
 Clowes V. Higginson 560 
 
 Clutterbuck v. LJ. Hunting- 
 tower 69 
 Cobb V. Carr 71 
 Cobden v. Kendrick 146 
 Cochran v. Ret berg 556 
 Coc.hrane's (Lord) case 283 
 Cockman v. Mather 423 
 Cocksedge v. Fanshaw 314 
 Coe V. Westernhatn 344 
 Coglan V. Williamson 473 
 Cohen v. Hannam 208 
 Coker V. Farewell 230, 363 
 Clochester, Mayor, &.c. case 
 
 of 136 
 
 Cole V. Parkin 517 
 
 Coliedge v. Horn 106 
 
 Collenridge v. Farquharson 232 
 Collelt V. Jennis 136 
 
 Collelt V. Lord Keith 
 Collins V. Blantern 
 Colson V. Selby 
 Compagnon v. Martin 
 Cook V Parsons 
 Cooke's case 
 Cooke V. Booth 
 
 V. Fountain 
 
 V. Maxwell 
 
 V. Miinstone 
 
 V. Sholl 
 
 V. Tanswell 
 
 Cooper V. Marsden 
 
 V. South 
 
 V. Gibbins 
 
 Coore V. Clare 
 Cope V. Bedford 
 Copeland v. Watts 
 Coopley (Sir J.) v. Day 
 Corbet v. Corbet 
 Corder v. Drakeford 
 Corking v. Jarrard 
 Corsbie v. Oliver 
 Corsen v. Dubois 
 Cort V. Birkbeck 
 Coshman v. Goldney 
 Cotterell v. Apsey 
 
 V. Griffiths 
 
 Cotterill V. Cuff 
 Courteen v. Touse 
 Cousins V. Brown 
 Cowling V. Ely 
 Cox V. Brain 
 
 v. Copping 
 
 V. Parry 
 
 Craib v. D'Aeth 
 Cranburne's case 
 Craythorne v. Swinburne 
 Cresby's (Sir P.) case 
 Crew q. t. v. Blackl)urn 
 
 q. t. V. S.mnders 
 
 Crimes v. Smith 
 Cris[) V. Anderson 
 Cris<pin v. Williamson 
 Croker's case 
 Croft V. Pawlett 
 Cromack v. Heathcote 
 Cromwell's fLord) case 
 Crosby's case 30, 3.5 
 
 V. Percy 473, 474 
 
 V. Wadsworth 529, 530 
 
 Cross V. Kayo 227 
 
 Page 
 
 no 
 
 551 
 
 191 
 201 
 499 
 
 230, 407 
 547 
 364 
 31 
 208 
 355 
 452 
 
 260, 264 
 411 
 439 
 527 
 421 
 141 
 510 
 
 363, 396 
 507 
 
 131, 133 
 171 
 436 
 328 
 60, 68 
 187 
 164 
 209 
 
 105,271 
 214 
 89, 362 
 187 
 429 
 187 
 90 
 291 
 549 
 39 
 429 
 431 
 162 
 522 
 
 209,213 
 121 
 601 
 143 
 549
 
 xxxtr 
 
 TABLE OF THE CASES CITED. 
 
 Cross V. Sailer 
 
 V. Lewis 
 
 Crossfield's case 
 Crowtlier v. Ifopwood 
 Crutcliley v. Mann 
 Cuddinjjton v. Wilkins 
 CufTv. Penn 
 Cunliffe v. Sefton 
 Currie v. Child 
 Curry v. Edensaw 
 Cullibert v. Gostling 
 Cutter V. Powell 
 Cults V. Pickering 
 
 D 
 
 Page 
 
 335 
 
 163 
 
 US 
 
 20 
 
 51)5 
 
 35 
 
 5G1 
 
 473, 503 
 
 74, 473 
 
 528 
 
 130 
 
 558 
 
 140, 146 
 
 Da Costa V. Villa Real 341 
 
 Dalison v. Starke 221 
 
 Dalrymple v. Dalrymple 401 
 
 Dalzell V. Mair 159 
 
 Damaree's case 98 
 
 Daniel v. North 160 
 
 Daniel! v. Pitt 101 
 
 Dartmouth (Lady) v. Rob- 
 erts 257,324,361,393,394 
 Dartnall v. Howard 394 
 
 Darwin v. Upton 163, 165 
 
 Davies's case 520 
 
 Davies v. Edwards 192 
 
 V. Hunnphreys 430 
 
 V. Pierce 254 
 
 V. Ridge 91 
 
 Davis and Carter's case 29 
 
 Davis V. Dinwoody 82, 88, 91 
 
 V. Living 73 
 
 V. Williams 399, 509 
 
 Dawbar's case 42 
 
 Dawson V. Duke of Norfolk 164 
 Day V. Bower 192 
 
 Deacon's case 178 
 
 Deade v. Hancock 250 
 
 Deakin's case 161 
 
 De Berenger's case 276, 287 
 De Gaminde v. Pigon 159 
 
 De Gaillon v. L'Aigle 186 
 
 De La Motte's case 291,442 
 485, 486 
 Denn y. Fulford 387 
 
 V. Spray 249, 417 
 
 V. White 61 
 
 Derby's (Lord) case 338 
 
 De Sailly t. Morgan 293 
 
 Degpard'a oaso 36, 42 
 
 Page 
 De Symonds v. De La Cour 49 
 
 260 
 229 
 198 
 251 
 264 
 344 
 313 
 235 
 414 
 129 
 59 
 210 
 135 
 276 
 49 
 221 
 289 
 
 Dickinson v. Shee 
 
 v. Coward 
 
 Dickson v. Evans 
 Didsbury v. Thomas 
 Digby v. Stedman 
 Dike V. Polhill 
 Dillon v. Parker 
 Dingler's case 
 D'Israeli v. Jowett 
 Dixon v. Cooper 
 V. Parker 
 
 Dockvvray v. Dickenson 
 
 Dodd's (Dr.) case 
 
 Dodd v. Norris 
 
 Doddington v. Hudson 
 
 Doe V. Pearson 
 
 V. Perkins 
 
 dem. Allason v. Sisson 249 
 
 Ash V. Calvert 344 
 
 Askew V. Askew 418 
 
 Bapgalley v. Jones 258 
 
 Eaker v. Woomb- 
 
 well 108 
 
 Banning v. Griffin 198, 
 
 239 
 
 Beach v. Lord Jer- 
 sey 533 
 
 Bennington v. 
 
 Hall 424 
 
 Bingham v. Cart- 
 wright 221,256 
 
 Bromfield v. 
 
 Smith 527 
 
 Prown V. Brown 534 
 
 Brown V. Green- 
 ing 534 
 
 Bulkley v. Wil- 
 
 ford 532 
 
 Chevalier v. Huth- 
 
 waite 532, 543 
 
 Chichester V. Ox- 
 
 endon 534 
 
 Churchwardens of 
 
 Croyden v. Cook 424 
 
 Charges v. Foster 108 
 
 Cook V. Danvers 494, 
 
 532 
 
 Copley V. Day 510 
 
 Digby V. Steel 69 
 
 Dyke v. Whilting- 
 
 ham 606
 
 TABLE OF THE CASES CITED. 
 
 Page 
 Doe dem. Fen wick v. Reed 1C2 
 
 Foley V. Wilson 1G4 
 
 Foster v. Williams 56 
 
 . Foster V. Sisson 173 
 
 Freeland v. Burt 543, 
 
 544 
 
 George v. Jesson 197, 
 
 239 
 
 -— Haldnne and Urry 
 
 V. Harvey 444 
 
 "- ■ Hall V. Benson 554 
 
 Handson v. Fyldes 545 
 
 ■ Harris v. Greathed 533 
 
 Harrup v. Green 76 
 
 . Hatch V. Bluck 389 
 
 — — Hindson v. Kersey 133 
 
 . Hotchkisv. Pearce470 
 
 Human v. Pettelt 358 
 
 . Jackson v. Ash- 
 
 burncr 527 
 
 ■ James v. Brawn 226 
 
 Johnson v. Lord 
 
 Pembroke 239 
 
 ■ Johnson V, Johnson 474 
 
 Jones V. Wild 65 
 
 — — Jupp V. Andrews 146 
 
 Leicester v. Briggs 108 
 
 Lloyd V. Deakin 197 
 
 ' Lowden v. Watson 228 
 
 Maddock v. Lyne 492 
 
 Mansfield v. Peach 469 
 
 Morris v. Ilosser 380 
 
 Norlhey v. Harvey 240 
 
 ^Oxendon v. Chi- 
 chester 535 
 
 Peters v Ilopkin- 
 
 son 554 
 
 Recce v. Robson 255, 
 
 256, 257 
 
 Roberts v. Roberts 553 
 
 Sheppard v. Allen 107 
 Small V. Allen 552 
 Spicer v. Lea 551 
 
 St. John V. Hore 504 
 • Sutton V. Ridgway 236 
 Sykes v. Durnford 465 
 Tilman v. Turner 240, 
 243 
 Toilett V. Sailer 216, 
 
 Page 
 Doe dem. Tyndale r. Heming 451 
 Tyrrel v. Lyford 534 
 
 538 
 Walker v. Stephen- 
 son 303 
 
 Walker v. Groves 527 
 
 Warmey v. Grey 439, 
 
 444 
 
 Webber v. Ld. G. 
 
 Thynne 259 
 Westlake v. West- 
 lake 532 
 
 Winckley v. Pye 107 
 
 Wood V. Teage 65 
 
 Wood v. Morris 221 
 
 Wright V. Manifold 501 
 
 Doker v. Hasler 83 
 
 Donaldson v Thompson 349 
 
 Doncaster (Mayor of^ v. Dry 
 
 230 
 Dongal V. Wilson 163 
 
 Dormer v. Fortescue 76 
 
 Douglas ca'ise 166, 245 
 
 Dover V. Maestaer 518 
 
 Dowden v. Fowle 91 
 
 Dowdeswell v. Knott 66 
 
 Downes v. Moreman 425 
 
 V.Richardson 513 
 
 V. Skrymsher 215 
 
 Down's case 21 1 
 
 Dowset V. Swaet 532, 535 
 
 Doxon V. Haigh 451, 457 
 
 Drake v. Marryat 99 
 
 V. Munday 527 
 
 V.Smyth 509,419 
 
 Drant v. Brown 525 
 
 Drewry v. Twiss 217 
 
 Du Barre v. Livette 144 
 
 Du Bosi v. Beresford 232 
 
 Duffin v. Smith 146 
 
 Duke V. Aldridge 92 
 
 Duncan v. Scott 388 
 
 Dundas v. Ld. Weymouth 212 
 Dupays v. Shepherd 407 
 
 Durham's case 41 
 
 Durham (Bp.) v. Beaumont 308 
 Durrel v. Bederley 290 
 
 Durslon v. Tutham 208 
 
 Dutton V, Colt 33, 366
 
 TABLE OF TIiE CASES CITED. 
 
 E 
 
 PugC 
 
 Page 
 
 Eaglelon nnd Coventry v. 
 
 Kins'^ion 485 
 
 Earl vr Lewis 420, 481 
 
 East India Company v. Glover 
 
 186 
 V. Donald 
 
 154 
 Eaton V. Lyon 547 
 Eccleston v. Petty 90, 362 
 Eden (Sir J.) v. Earl of Bute 543 
 Eden v. Smith 548 
 Edie V. E. L Company 556 
 Edmonds v. Walter 271 
 Edtnonstone v. Plaisted 300 
 Edwards v. Crock 82 
 V. Harvey 239 
 
 ■ — V. Lucas 213 
 
 ■ — V. Vesey 428 
 Egerton's case 179 
 Elden v. Keddeil 398 
 Eldridge's case 1 1 1 
 Eidridge V. Knott 160 
 Ellis's "case 114 
 Ellis V.Smith 498,499 
 Ellis V. Wall 186 
 Ellis V. Watson 411 
 Ely (Dean and Ch. of) v. 
 
 Warren 174,477 
 
 Emerson v. Blonden 85 
 
 Emmet v. Butler 78 
 
 V. Bradley 74 
 
 England v. Roper 466 
 
 Ennis V. Donisthorne 231 
 
 Entick V. Carrington 439 
 
 Erskine v. RufTle 173 
 
 Evans and Lake, case of 264 
 Evans V. Lewis 210 
 
 V. Phillips 426 
 
 V. Roberts 530 
 
 V. W^illiams 66, 140 
 
 V. Yeatherd 60 
 
 Evelyn v. Haynes 335 
 
 Everth v. Hannam 348 
 
 Ewer V. Ambrose 293, 309, 310, 
 
 394 
 Exeter (Mayor of) v. Cole- 
 
 maH 432 
 
 Exon V. Russell 208 
 
 Ex parte Hooper 548 
 
 Eyre v. Palgrave 219, 424 
 
 Fabrigas v. Mostyn 
 Fachina v. Sabine 
 Fairlie v. Christie 
 V. Hastings 
 
 V. Birch 
 
 Falconer v. Hanson 
 Falkner's case 
 Farr v. Price 
 Fasset v. Brown 
 Faulder v. Silk 
 Fearshire's case 
 Fell V. Chamberlain 
 Fenn v. Granger 
 Termor's case 
 Ferrar's case 
 Ferrers (Lord) v. Shirly 
 
 Field V. Beaumont 
 Filmer v. Gott 
 Fisher v. Heming 
 
 V. Kitchingman 
 
 V. Lane 
 
 V, Ogle 
 
 V. Samuda 
 
 Fitzgerald v. Else 
 Flad Oyen, case of 
 Fleming v. Windham 
 Flindt V. Atkins 
 Flower V. Young 
 Folkard v. Hemet 
 Folkes V. Chad 
 Fonnereau v. Poyntz 
 Fonsick v. Agar 
 Foot v. Haynes 
 Forbes y. Graham 
 
 V. Wale 
 
 101 
 
 22, 23 
 
 515 
 
 99, 102 
 
 391 
 
 357, 451 
 111 
 
 505, 507 
 475 
 375 
 113 
 567 
 72 
 341 
 
 323, 3:i5 
 358, 
 
 486, 488 
 3, 436 
 551 
 141 
 381) 
 396 
 
 348, 352 
 457 
 475 
 349 
 
 369, 370 
 399 
 412 
 43'J 
 291 
 545 
 367 
 142 
 37 
 477 
 366 
 42 
 64, 138 
 202 
 389 
 475 
 
 Ford V. Guy 
 Fordham's case 
 Forrester v. Pigou 
 Forty v. Lnber 
 Foster v. Compton 
 Fosset v. Brown 
 Fotheringham v. Greenwood 
 
 52,64 
 Fountain v. Young 144 
 
 Foxcraft v. Lister 575 
 
 Foxley's case 32 
 
 Francia's case 117,442,485 
 Francisco v. Gilmore 367 
 
 Franklin's case 406
 
 TABLE OF THE CASES CITED. 
 
 xxxrit 
 
 t^raser v. Hopkins 
 
 V. Marsh 
 
 Free v. Hawkins 
 Freeman v Arkell 
 -— V. Phillips 
 
 Erench q. t. v. Coxon 
 
 V. Patten 
 
 Friend's (Sir J.) case 
 
 Frith V. Gray 
 Frontine v. Frost 
 Frost V. Holloway 
 Froysell v. Lewellyn 
 Fry V. Wood 
 Fuller V. Fotch 
 
 V. Prentice 
 
 Furley v. Newnhani 
 
 dem. Mayor of 
 
 lerbury v. Wood 
 Farneaux v. Hutchins 
 
 G 
 
 Gahagan's case 
 Gainsford v. Grammar 
 
 140, 
 Galbraith v. Neville 
 Gale V. Half knight 
 Galen, case of the 
 Gall V. Croft 
 
 Page 
 411 
 134 
 555 
 
 455 
 
 240, 249, 
 
 359, 204: 
 
 3i9 
 
 514, 515 
 
 276,281, 
 
 307, 407 
 
 217 
 
 19S 
 
 283 
 
 109 
 
 ties, 477 
 
 355 
 
 6 
 
 G, 15 
 
 Can- 
 
 554 
 
 Page 
 Glyn V. Bank of England 254, 
 265, 364 
 
 r 
 
 174 
 
 153 
 101, 106, 
 143, 145 
 
 351 
 
 232 
 54 
 
 548 
 
 tianer v. Lady Laneborough 401 
 
 Gape V. ITandley 451 
 
 Garland v. Scoones 389 
 
 Garnet v. Ball 101 
 
 Garnons v. Barnard 250 
 
 V. Swift 218, 519 
 
 Garret v. Lister 398 
 
 Garrick v. Williams 387, 461 
 
 Gaul's case 319 
 
 Geery v. Hopkins 428 
 
 Germain v. Frederick 210 
 
 Gevers v. Mainwaring 56, 130 
 
 Geyer v. Aguillar 354 
 
 Gibbon's case 422 
 
 Gibson v. Hunter 313, 314 
 
 V. Maccarty 337 
 
 Gillum V. Stirrup 382 
 
 Gladstone v. Neale 209 
 
 Glossop V. Poole 376 
 
 Vo^.. L E 
 
 V. Thorpe 
 
 Goater v. Nunnely 
 Goddafd's case 
 Godfrey v. Norris 
 
 - — '■ V. Macauley 
 
 Gold V. Jones 
 
 Goldie V. Shuttleworth 105, 
 Goldschmidt v. Marryat 
 Goraan v. Salisbury 
 Goodacre v. Breame 
 Goodes V. Wheatley 
 Goodier v. Lake 
 Goodright v. Saul 
 
 V. Hicks 
 
 Goodson V. Forbes 
 Goodtitle v. Baldwin 
 
 V. Braham 
 
 V. Lamiman 
 
 V. Southern 
 
 V. Walford 
 
 V. Walter 
 
 3!6 
 438 
 553 
 473 
 
 408 
 488 
 466 
 439 
 565 
 59 
 202 
 452 
 158 
 176 
 508 
 161 
 291,493 
 215 
 533 
 52, 137 
 216 
 4 
 448, 449, 
 45ii 
 • •" "' V. Austen 208 
 
 V. Gordon 212 
 
 — 's (Lord G.) case 98, 
 
 182, 276, 424 
 
 's case 6, 204, 226 
 
 Gorham v. Thompson 408 
 
 Gorton v. Dyson 443 
 
 Goss V. Tracy 52, 364, 473 
 
 Goss V. Watlington 258 
 
 Gollieb V. Danvera 445 
 
 Gough sf. Cecil 474 
 
 Gracewood v. 437 
 
 Grafton (Duchess of) v. Holt 31 1 
 
 Goodwin v. West 
 
 Gordon v. Secretan 
 
 Graham v. Dyster 
 
 V. Hope 
 
 V. Peate 
 
 — V. Robertson 
 
 Grant v. Jackson 
 
 's case 
 
 Gray's Case 
 Grayson v. Atkinson 
 
 Greaves v. Ashlin 
 Green v. Dunn 
 
 441 
 
 408 
 160 
 210 
 93, 362 
 116 
 
 fin 
 
 498, 499, 
 502 
 562 
 110
 
 XXXTJU 
 
 TABLE OF THE CASES CITED. 
 
 Page 
 
 Green v. Hearn 186 
 
 V. Greenbank 208 
 
 V. Rennett 213 
 
 —— V. New River Com- 
 pany 56, Ul, a26', 332 
 
 V. Gaturk 231 
 
 V. Hewitt 375 
 
 V. Rondo 386 
 
 — — V. Proude 405 
 
 V. Davies 508 
 
 Greg's case 117 
 
 Gregory v. Eraser 520 
 
 V. Howard 108, 109 
 
 V. Parker 
 
 86 
 
 468, 475, 476 
 
 526 
 
 Grellier v. Neale 
 Grey v. Smith 
 
 Griffith V. Matthews 164 
 
 Griffin's case 116 
 
 Grigg's case 77, 84, 85 
 
 Grillard v. Hogue 15 
 
 Grimwood v. Barritt 213 
 
 Groenvelt v. Burwell 357, 426, 
 428, 434 
 
 Guest V. Caumont 216 
 
 Guiiliam v. Hardy 385 
 
 Gunnis v. Erhart 560 
 
 Gunston and Downea 39, 47 
 
 Gurney v. Langlands 493 
 
 Gutteridge v. Smith 188 
 
 Gwinnett v. Phillips 206, 213 
 
 Gyfford v. Woodgate 391 
 
 Gyles V. Hill 386 
 
 H 
 
 Haddow V. Parry 256 
 Hagedorn v. Reid 263, 447 
 
 Hale's case 1 10 
 
 Halifax's (Lord) case 195 
 
 Hall V. Cazenove 553 
 
 V. Hill 86 
 
 Hallett V. Mears 
 
 Haymer v. Raymond 217 
 
 Hammond v. Stewart 4 
 
 Hampshire v. Pierce 537 
 Hancock v. Welch 324, 332 
 
 Hanford v. Palmer 209 
 
 Hands V, James 501 
 
 Hanson's case 183 
 
 • V. Parker 91 
 
 Hardcastle v. Sclater 392 
 
 Page 
 Harding v. Carter 100 
 
 Hardy's case 95, 96, 184, 275, 
 276, 284, 290 
 Hare v. Shearwood 559, 567 
 Harling's case 34 
 
 Harm an v. Lasbrey 62 
 
 Harper r. Brook 255 
 
 V. (;harlesworth 174, 166 
 
 Harrington v. Fry 48S 
 
 V. M'Morris 171 
 
 V. Wise 527 
 
 Harris v. Cook 216 
 
 V. Bp. ofLincoJ»532,543 
 
 V. Mantle 201 
 
 V. Tippett 273, 283 
 
 V. White 35 
 
 Harrison's case 291, 307, 369, 
 372, 373 
 
 V. Blades 240, 260, 474 
 
 V. Harrison 600 
 
 V. Vallance 92 
 
 V. Williams 431 
 
 Harrow v. Rislip 329 
 
 Hart V. M'Namara 354 
 
 \\ arvey v. CoUison 68 
 
 Harwood v. Sims 249, 250, 251 
 
 V. Wallis 
 Haslem's case 
 Hatch V. Blissett 
 Hatfield v. Thorpe 
 Hathaway v. Barrow 
 
 Havelock v. Rockwood 
 Hawkeswood's case 
 Hawkins v. Kemp 
 V. Warre 
 
 121 
 
 577 
 40 
 
 5 
 496 
 337, 
 339 
 349 
 520 
 472 
 625 
 648 
 364 
 242 
 59, 158 
 52 
 289, 519 
 
 Haynes v. Hare 
 Haws V. Hand 
 j Hayward v. Fermiow 
 Head v. Head 
 Heath v. Hall 
 Hedge's case 
 Helliard v. Jennings 65, 495 
 Helyer v. Hawke 99 
 
 Henckle v. Royal Ex. Ass. 
 
 Com. 
 llennell v. Lyon 
 Henry v. Adey 
 V. Lciiih 
 
 576 
 394 
 386, 399 
 218, 415, 440 
 Henshaw v. Pleasance 355 
 Herbert v. Ashburner 428 
 V. Cook 351, 380
 
 TABLE OF THE CASES CITED. 
 
 Page 
 
 Herbert v. Reid 543, 548 
 
 V. Walters 315 
 
 V. Tuckall 240 
 
 Hereford (Bp. of) v. Duke of 
 
 Bridgewater 430 
 
 Hesfon's case 32 
 
 Hetherington v. Kemp 447 
 
 Heward v. Shipley 126 
 
 Hewson v. Browu 385 
 
 Hicks's case 319 
 
 Higginson v. Clowes 560 
 
 Higgs V. Dixon 465 
 
 Higham v. Ridgway 238, 255, 
 
 256 
 
 Hill V. Fleming 74 
 
 V. Patten 514 
 
 V. Wright 171 
 
 Hill's case 205 
 
 Hillyard v. Grantham 336 
 
 Hillyard's case 337 
 
 Hilton V. King 497 
 
 Hindson v. Kersey 495, 497 
 
 Hitchen v. Campbell 324, 333 
 
 Hoare v. Allen 234 
 
 V. Coryton 266 
 
 V, Graham 555 
 
 V. Mill 212 
 
 Hobhouse v. Hamilton 388, 464 
 
 Hobson V. Parker 
 Hockin V. Cook 
 Hockley v. Lamb 
 Hodge V. Fillis 
 Hodges V. Aikis 
 
 — . V. Drakeford 
 
 Hodge's case 
 Hodgkinson v. Fletcher 
 
 V. Willis 
 
 Hodgson V. Fullarton 
 Hodgson's case 
 Hodneit v. Forman 
 Hoe V. Naihorpe 
 Hogg V. Snaith 
 Holcomb V. Hewson 
 Holcroft V. Heel 
 
 — V. Smith 
 
 Holland q. t. v. Duffin 
 
 Holland V. Hopkins 
 Hollis V. Goldfinch 
 Holt V. Squire 
 Home V. Lord T. Bentinck 
 Honeywood v. Peacock 466, 473, 
 
 476 
 
 430 
 208 
 57 
 208 
 431 
 504 
 116 
 81 
 394 
 
 257, 260 
 
 176, 276 
 473 
 
 344, 397 
 555 
 172 
 163 
 
 364, 462 
 518 
 190 
 174 
 105 
 287 
 
 Page 
 
 Hope V. Atkins 559 
 
 Hopewell V. De Pinna 198 
 
 Hopkins v. Neale 59, 69 
 
 Home V. Smith 7 
 
 Home Tooke's case 95 
 
 Horsefall v. Testar 212 
 
 How V. Hall 442 
 
 Howard v. Tremaine 366 
 
 Howell V. Lock 131,268 
 
 V. Richards 212 
 
 Hubbard v. Jackson 514 
 
 V. Johnstone 412 
 
 Hudson V. Robinson 60, 68 
 
 Huet V. Le Mesurier 411 
 
 Hughe's case 224 
 
 Hughes V. Cornelius 347 
 
 V. Gordon 553 
 
 V. Wilson 416 
 
 Hull (Mayor of) V. Horner 328 
 
 Humble v. Hunt 416 
 
 Humphrys v. Knight 404 
 
 Hunt V. Andrews 416 
 
 V. Hart 239 
 
 V. Stevens 524 
 
 Hunter v. Britts 366 
 
 V. Gibson 172 
 
 V. King 123 
 
 Hurst V. Watkis 192 
 Hussy V. Jacob 319 
 Hutchinson's case 350 
 V. Piper 208 
 
 ggulden V. May 547 
 
 Iderton v. Atkinson 62 
 
 llingworth v. Leigh 261, 395, 
 
 420 
 ncledon v. Burgess 322 
 
 ngram v. Dade 133 
 
 ngram v. Lee 525, 562 
 
 rnham (Lord) v. Child 548,570 
 srael v. Benjamin 188, 189, 524 
 vat V. Finch 257 
 
 ve's case 317 
 
 Jaclfson V. Allen 
 V. Carter 
 
 452 
 559, 567 
 113 
 
 Jacob's case 
 Jacob V. Lindsay 110, 220, 505, 
 
 508
 
 xl 
 
 TABLE OF THE CASES CITED. 
 
 Page 
 
 Jacobs V. Hart 51 () 
 
 .Tagger's case 84 
 
 James v. Hatfield 59, 69, 90 
 
 Janson v. Rany 154 
 
 Jarrett v. Leonard 107 
 
 Jefferies v. Duncoinb 217 
 
 Jeffery v. Walton 502 
 
 Jeifs V. Ballard 198 
 
 Jenkin's case 1 17 
 
 Jenkins v. Blizard 408 
 
 V. Q,uii)chaiit 577 
 
 Jenkinson v Pepys 500 
 
 J.Qnk's case 207 
 
 John's case 85, 235 
 
 Johnson v. Browning 71 
 
 V. Duke of Marl- 
 
 borouiih 
 
 — V. Giison 
 — - V. Lawson 
 --- V. Llewellyn 
 
 — V. Mars 
 
 — V. Mason 
 
 — V. Ward 
 
 Johnstone's case 
 Jolley V. Taylor 
 Jones V. Bow 
 V. Brewer 
 
 V. Brooke 
 
 V. Jones 
 
 V. Lake 
 
 V. Mason 
 
 V. Newman 
 
 V. Randell 
 
 V. Sandys 
 V. Tucker 
 V. Waller 
 V. Wood 
 
 513 
 
 451 
 
 240 
 
 437, 448 
 
 208 
 
 104,406 
 
 104,415 
 
 207 
 
 442 
 
 341 
 
 15, 474 
 
 43, 61, 62 
 
 363 
 
 499 
 
 28, 473 
 
 532 
 
 393, 396, 406, 
 
 424 
 
 409 
 
 545 
 
 259, 262, 481 
 
 391 
 
 111 
 
 Page 
 Kemp V. Mackuill 493 
 
 Keinpton dem. Boyfield v. 
 
 Jones's case 
 Jordaine v. Lashbrooke 44, 51, 43 
 Jordan v. Sawkins 567 
 
 Jory V. Orchard 446 
 
 Joynes v. Statham 569, 572, 574 
 Juxon (Sir W ) v. Ld. Byron 144 
 
 K 
 
 Kahl V. Jansen 100 
 
 Kains v. Knightly 555 
 
 Keightley v. Birch 56 
 
 Kellington (Vicar of) v. Trin. 
 ' Coll. Oamt|. 405 
 
 Cross 
 Kennerley v. Nash 
 Kenn's case 
 Kensington v. Inglia 
 
 Kent V. Lowen 
 Kershaw v. Cox 
 Keymer v. Summers 
 Kilmarnock's case 
 Kinder v. Williams 
 Kindersly v. Chase 
 
 Kine V. Beaumont 
 
 385, 398 
 513 
 341 
 
 454, 458, 
 514 
 99, 232 
 516 
 164 
 215 
 5 
 
 346. 347. 
 
 348, 349 
 445 
 
 The Kins v. 
 
 Sfe Rex, infra. 
 
 King dem. Lord 'f hanej v. 
 Foster 421 
 
 V. Fraser 216 
 
 V. King 437 
 
 Kingston (Mayor of) v. Hor- 
 ner 161, 422 
 Kington's (Duchess of) case 
 
 144, 146, 320, 333, 340, 
 343, 345, 355 
 Kinnersley v. Orpe 324, 387, 383 
 Kinsman v. Crook 363 
 
 Kirtland v. Ponnsett 216 
 
 Kirwan v, Cockburn 408 
 
 Knight V. Dauler 387 
 
 V. Halsey 163 
 
 Knill V. Williams 512 
 
 Lacon v. Higgins 
 Laing V. Barclay 
 
 V. Raine 
 
 Lake V. Billers 
 Lambe's case 1 10, 
 Lampon V. Cork 
 Lane v. Hegberg 
 Langdon v. Hulls 
 Langhorn v. Allnut 
 V. Colocfon 
 
 Latham v. Rutley 
 Latkow V. Eamer 
 Laughton v. Ward 
 Lawley's (Lady) case, 
 Layer's case 5, 39, 1 15, 
 292, 442, 485, 
 Leader v. Barry 
 
 63, 4oa 
 
 142 
 
 466 
 
 391 
 
 115, 371 
 
 108, 549 
 
 357 
 
 445 
 
 100 
 
 515 
 
 208, 525 
 
 376 
 
 165 
 
 85 
 
 281,291, 
 
 488, 491 
 
 4li
 
 TABLE OF THE CASES CITED. 
 
 Le Cniix V. Eden 
 
 Le Cheiniiiant v. Pierson 
 
 Page 
 346 
 506 
 
 Lee q I. v. Birrel 
 
 V. Gaii?ell 
 
 V. Libb 
 
 V. Meacock 
 
 's case 
 
 Leeds V. Cook 
 Leery v. Goodson 
 Leeson y. Holt 
 Legal V. Miller 
 LegatI V. Tollervey 
 LjCggett V. Cooper 
 Leglise v. Cliampante 
 Le Go3s V. Lovempre 
 Leigh V. Banner 
 Leighton v. Leighton 
 Leaiayne v. Stanley 
 Lemon v. Dean 
 Leslie V. De la Torre 
 Lethulier's case 
 Lewis y. Baker 
 
 V. Price 
 
 Ley V. Ballard 
 Liebman v. Pooley 
 Lightfoot V. Cameron 
 Lilly V. Ewer 
 Lincoln (Bp. of) v. Ellis 
 Lindo V. Rodney 
 Lipscomb V. Holmes 
 Lister q. t. v. Priestly 
 Littler v. Holland 
 Lloyd V. Passingham 
 
 V. Williams 
 
 V. Willan 
 
 — V. Woodhgll 
 
 L'Neve v. L'Neve 
 Lock V. Nor borne 
 Lockhart v. Graham 
 
 ■ 's case 
 
 London (Mayor and Cpnj- 
 monalty of) 
 
 y. Clerk 252, 
 
 Corporation v. Long 
 
 V. Mayor of Lynn 
 V. Swinj,and 
 Greville 
 
 Long V 
 Longchamp v. Fish 
 Lopez V. De Tastet 
 Lothian v. Henderspn 
 
 145,287 
 30 
 
 408, 500 
 416 
 38, 520 
 443 
 208 
 408 
 
 565, 569 
 426 
 188 
 210 
 260 
 530 
 
 317, 383 
 497 
 475 
 555 
 
 556, 557 
 
 429 
 
 163 
 
 475 
 
 457 
 
 4 
 
 557 
 
 325 
 
 346 
 
 188 
 
 226 
 
 2i)8 
 
 411 
 
 74 
 
 101 
 
 382 
 
 154 
 
 324 
 
 67 
 
 116 
 
 71 
 327 
 
 91, 
 541 
 422 
 428 
 188 
 498 
 208 
 347 
 
 Page 
 Lovai'b (Lord) case 17, 31, 131 
 267, 331 
 Lovelock V. Chively 
 Loveridge v. Bothain 
 Lowe V. Joliffe 
 Lowfield V. Bencroft 
 
 V. Stoneham 
 
 Lowry v. Doubleday 
 Lowlher v Raw 
 Lucas V. De la Cour 
 
 V. Novosilienski 
 
 Luttrell V. Lea 
 
 V. Reynal 
 
 193 
 
 108 
 
 502 
 
 333 
 
 548 
 
 7 
 
 174 
 
 92, 362 
 
 159 
 
 385 
 
 41,307, 363 
 
 479, 481 
 
 359, 424 
 
 5 
 
 Lygon V. Strutt 
 
 Lynch v Clarke 
 
 Lyne, Ex parte 
 
 Lynn (Mnyor of) y. Denton 432 
 
 M 
 
 Mabank v. Brooks 548 
 
 Macbride v. Macbri^e 282, 283 
 Macclesfield's (Lord) case 276 
 
 387 
 
 490 
 
 203, 204 
 
 503 
 
 471 
 
 130 
 
 475 
 
 503 
 
 530 
 
 386, 391 
 
 201 
 
 4 
 
 100 
 
 187 
 
 527 
 
 276 
 
 107. 229 
 
 Macdougal v. Young 
 
 Macferson v. Thoytes 
 
 Mackalley's case 
 
 Mackery v. Newbolt 
 
 Macqueen v. Farquhar 
 
 M'Braine v. Fortune 
 
 M'Craw v. Gentry 
 
 M'Kenzie v. Eraser 
 
 V. Banks 
 
 M'Niel V. Perchard 
 
 M'Quillin V. Co5 
 
 Maddison v. Shore 
 
 Maesters v. Abraham 
 
 Malcom v. Fullerton 
 
 Maldon's ca^e 
 
 Maloriey v. hartley 
 
 Maltby V. Christie 
 
 Manby v. Curtis 260, 262, 477, 
 
 481 
 
 Manchester Mills, case of 328 
 
 211 
 465 
 r2, 75 
 366 
 422 
 
 Manifold v. Pennington 
 Manners q. t. v. Postan 
 Mant V. Manwaring 
 Marden v. Bound 
 Marriage v. Lawrence 
 
 Marsh v. Colnet 
 
 V. Meager 
 
 V, Robinson 
 
 414, 424, 478 
 232 
 411
 
 x\\\ 
 
 TABLE OF THE CASES CITED. 
 
 Marshall v. CliflT 
 Marshall v. Parker 
 Marshalsea case 
 Martin v. Goble 
 
 V. Howard 
 
 V. Heiirickson 
 
 V. Podger 
 
 V. Thornton 
 
 Pat»e 
 105,100 
 :US 
 357 
 105 
 130 
 50 
 391 
 334 
 
 iMassy v. Johnson 427 
 
 Master v. Miller 512 
 
 Masters v. Masters 543 
 
 q. t. V. Drayton 51 
 
 Matthews v Hay don 129 
 
 V. Port 421 
 
 Matson V. Booth 512 
 
 Maundre'I v. Kennett 01 
 
 Mawman v. Gillet 49 
 
 Mawson v. Hartsink 292 
 
 May V. Gwynne 433 
 
 May V.May 240,410 
 
 Mead's case 85 
 
 Mead v. Robinson 120, 415, 424 
 Meath (Bp.) v. Ld Belfield 252, 
 
 540 
 Mease v. Mease 549 
 
 Mee V. Reed 23 
 
 Meek ins v. Smith 4 
 
 Mellish V. AInut 187 
 
 Melville's (Lord) case 102, 407, 
 
 459 
 Meredith v. Gilpin 58, 128 
 
 Meres v. Ansell 559 
 
 Merle y. More 141 
 
 Mersey and Irwell Nav. 
 
 Comp. of, v. Douglas 217 
 
 Michell V. Rabbetts 479 
 
 Middleton v. Brewer 188 
 
 ■ v. Janverin 401 
 
 V. Sanford 400 
 
 Mildinay's case 549 
 
 Mildrone's case 23 
 
 Miles V. Sheward 209 
 
 Miller v. Falconer 50 
 
 V. Foster 419 
 
 V. Henrick 401,500 
 
 ■ V. Sear 357 
 
 '-- — V. Williams 188 
 
 Mills v.Lyne 180 
 
 Millward v. Temple 105, 400, 
 
 474 
 Millward V. Walter 192 
 
 Minton's case 207 
 
 Page 
 
 Mitchell V. Tarbutt 210 
 
 Mohun's (Lord) case 235 
 
 Moises V. Thornton 228,386 
 
 Molony v. Gibbons 354 
 
 Molton q. t. V. Harris 218 
 
 Monke v. Butler 195 
 
 Mourse v. Twistleton 83 
 
 Montgomcrie v. Clark 389 
 
 Moodie V. Reed 470 
 
 Moody V. Thurston 357, 428 
 
 V. King 74 
 
 Moor V. Adam 7 
 
 V. Rawson 163 
 
 V. Foley 547 
 
 Morish v. Foote 50, 1 31 
 
 Morewood v. Wood 248, 249, 
 
 251, 257, 492 
 
 Morgan's case 22, 23 
 
 V. Bissel 527 
 
 V. Bridges 274 
 
 V. Edwards 212,216 • 
 
 xMorley's (Lord) case 369,372 
 
 Morris v. Burdett 107 
 
 Morrison v, Kelly 426 
 
 Morton's case 520 
 
 Moseley v. Davy 250 
 
 Moses v. Macfarlan 357 
 
 Mosey's case 116 
 
 Mostyn v. Fabrigas 15 
 
 Motteux v. Lond. Ass. Comp. 
 
 576 
 
 Moulin v. Dalison 173 
 
 Mountstephen v. Brook 208 
 
 Murray v. Thornhill 429 
 
 Munn v. Godbold 452, 519 
 
 Mytton v. Harris 420 
 
 N 
 
 Neal V. Duke of Athol 328 
 
 v. Irving 104 
 
 Nedham's case 341 
 
 Nelson v. Whittal 466, 475 
 
 Newberg v. Newberg 252 
 
 Newland's case 122, 224 
 
 Newsome v. Coles 408 
 
 NichoUs v. Dowding 92, 269 
 
 V. Parker 242, 249, 250 
 
 Nightingale v. Dervisme 395 
 
 Nix V. Cutting 49 
 
 Noble V. Kennoway 173, 556 
 
 Nodin V. Murray 446
 
 TA13LK OF THE CASES CITED. 
 
 Noel V. Wells 
 Nordon v. Williamson 
 Norris v. Mill 
 Nortli V. Miles 
 
 O 
 
 Page 
 
 343 
 
 72 
 
 142 
 
 106 
 
 Gates (Titus) c.ise of 4C6 
 
 Oddy V. Bovil 349 
 
 Ogilvie V. Foljambe 5G0 
 
 Ogle V. Cook 497 
 
 V. Paleski 365 
 
 Oldham v. Litchford 577 
 
 Oldroyd's case 310,371 
 
 Olive V. Gwin 385, 463 
 
 Omerod v. Hardman 570 
 Oniichund v. Barker 22, 23, 382 
 
 Orford V. Cole 525 
 
 Orr V. Morrice 450, 483 
 
 Osborne v. Taylor 438 
 
 Outhvvaite v. Luntley 512 
 
 Outrara V. Morewood 251,253, 
 260, 322, 324 
 
 Page V. Crook 74 
 
 V. Leapingwell 543 
 
 Pain V. Bustin 458 
 
 's case 369 
 
 Paleihorp v. Furnish 86, 99 
 
 Palraer v. Lord Aylesbury 364, 
 
 396 
 Palmerston's (Lord) case 231 
 Parham v. Raynal 93 
 
 Park V. Mears 446 
 
 Parker v. Palmer 208, 209 
 
 V. Hoskins 473, 474 
 
 V. Staniland 530 
 
 Parkins v. Hawkshaw 144, 146, 
 
 466 
 Parkingson v. Collier 558 
 
 Parkyn's (Sir W.) case 154, 407 
 Parkhurst v. Lowtan 140, 276 
 Parr's case 122 
 
 Parris's case 120 
 
 Parsous v. Bellamy 260 
 
 V. Parsons 532 
 
 Pateriche v. Powlet 559, 562 
 Patridge v. Coates 440 
 
 Patram's case 40 
 
 Patrick's (Dr.) case 356 
 
 Peacock v. Monk 
 
 V. Harris 
 
 Pearce v. Hooper 
 Pearson v. lias 
 Pederson v. Stoffles 
 Pember v. Mathers 
 Pendock v. Mackinder 
 
 Pendrel v. Pendrel 
 Penny v. Porter 
 Pepiet V. Jones 
 Peppin V. Soloman 
 Perigal v. Nicholson 
 
 Peto V. Hague 
 
 Petre (Lord) V. Blencoe 
 
 Phillips V. Bacon 
 
 V. Bury 
 
 V. Earner 
 
 -— V. Shaw 
 
 V. Hunter 
 
 Phillipson v. Chase 
 Phillips V. Duke of Bucking- 
 ham 
 Phipps V. Parker 
 V. Pitcher 
 
 Page 
 
 550 
 
 227 
 
 449, 483 
 
 7,8 
 
 54 
 
 154, 571 
 
 28, 30, 
 
 494 
 
 240 
 
 208 
 
 73 
 
 206 
 
 131,260, 
 
 267 
 
 99 
 
 543 
 
 214 
 
 356 
 
 274 
 
 214 
 
 352 
 
 446 
 
 Pickering v. Noyes 
 
 V. Rudd 
 
 Pickford v. Gutch 
 Picton's (Gen.) case 
 
 Piercy v. 
 
 ■ — 's case 
 
 Piesly V. Von Esch 
 
 401 
 
 69 
 475 
 52, 495 
 438 
 171 
 2^8 
 402, 
 407 
 366 
 423 
 
 59 
 
 Pike'v. Crouch 65, 230, 325 
 V. Badmerins 309, 502 
 412 
 565 
 263 
 212 
 
 Pirie v. Anderson 
 Pitcairne v. Ogbourne 
 Pitman V. Madox 
 Pitt V. Green 
 
 V. Knight 385 
 
 Pitton V. Walter 231,389,421 
 
 Plumoner v. Woodburn 
 Plunkett V. Cobbett 
 Pollard V. Bell 
 Pomery v. Baddely 
 Pomfret (Lord) v. Smith 
 Pool V. Court 
 V. Eently 
 
 Pope V. Skinner 
 Portman v. Okeden 
 Portmore v. Morris 
 
 350 
 
 288 
 349 
 268 
 253 
 208 
 527 
 202 
 128 
 559, 570
 
 xlit 
 
 TABLE OF THE CASES CITED. 
 
 Potts V. Durant 
 Powell V. Blacked 
 
 V. Cleaver 
 
 — V. Edmonds 
 
 V. Ilord 
 V. Lay ton 
 V. Mil bank 
 V. Ward 
 
 Presion v. Mercenu 
 Preston's (Lord) case 
 Price V. Dyer 
 V. Fletcher 
 
 Pngo 
 
 4lO, 4-20, 480 
 
 408 
 
 502 
 
 510, 559, 
 
 560 
 
 59 
 
 210 
 
 195 
 
 26 
 
 559 
 
 485, 486 
 
 566 
 
 212 
 
 Rindall v. Lyncli 
 V. Randall 
 
 V. Littlewood 251,257,414 
 V. Lord Torritigtoii 263 
 V. Page 
 
 s case 
 
 Priddle's case 
 Prideaux v. Collier 
 Prince v. Blackburn 
 Pritt V. Fairclough 
 Prudham v. Phillips 
 Purcell V. Macnamara 
 Purchase's case 
 Putt V. Roster 
 Pye's case 
 
 a 
 
 538 
 
 40 
 
 30 
 
 99 
 
 47a 474 
 
 459 
 
 346 
 
 214 
 
 98 
 
 333 
 
 207 
 
 Page 
 
 188, 4(55 
 
 577 
 
 no 
 
 481 
 30,44- 
 107 
 564 
 438 
 I4t 
 334,381 
 
 74 
 555 
 399 
 457 
 526 
 
 7* 
 520- 
 
 Queen (proceedings against 
 
 the) 103 
 
 V. Muscot 151 
 
 €luelch'3 case 407 
 
 R 
 
 Radbourne's case 
 Radford q. t. v. Mackintosh 
 Radnor (Earl of) v. Reeve 
 Ranibert v. Cohen 
 Ramsay's case 
 Ramsbottom v. Brewer 
 
 — V. Buckhurst 
 
 • — V. Gosden 
 
 V. Mortley 504, 
 
 — V. Tunbridge 
 
 Ramsbottom's case 
 Ramstrom v. Bell 
 Rancliffe (Lord) v. Parkyns 
 
 Randall v. Gurney 
 
 371 
 227 
 357 
 505 
 84 
 188 
 390 
 569 
 525 
 221, 
 525 
 398 
 513 
 501, 
 503 
 4 
 
 Randle v. Blackburn 
 Randolph v. Gordon 
 Rands v. Thomas 
 Rankin v. Horner 
 Rann v. Hughes 
 Ratcliffe V. Biensby 
 Ratcliffe's (Dr.) case 
 Ravee v. Farmer 
 Raven v. Dunning 
 Rawson v. AValker 
 Ray V. Clarke 
 Read v. Brookman 
 Reardon v. Swabey 
 Reason v. Ewbunk 
 Reculist's case 
 Reed (the King in aid of) v. 
 
 Hopper 387, 464 
 
 V.Jackson 2ol,3l6,328 
 
 V. James 274, 436' 
 
 V. Passer 411 
 
 Rees V. Abbot 210 
 
 V. Mansell 478 
 
 V. Smith 194 
 
 Reid V. Margison 386 
 
 Reilly's case 35 
 
 Rescous V. Williams 137 
 
 Reasse v. Meyers 412 
 
 Rex V. Abergwilly 241, 376 
 
 V. Aides 414, 416 
 
 V. Allison 410 
 
 V. All-Saints, Worces 
 
 ter 
 
 Appleby 
 Austrey 
 Babb 
 Badby 
 Baldwin 
 Ball 
 Barker 
 Barnes 
 Bah- 
 Bedeli 
 Bellamy 
 Bellringer 
 Benson' 
 Bentley 
 
 V. Bickley 
 
 V. Blaney 
 
 V. Boston 
 
 79 
 
 116 
 
 471 
 
 431,433,434 
 
 331 
 179 
 427 
 397 
 164 
 87 
 ^13 
 541 
 394 
 330^ 
 375^ 
 
 55. 
 120, 121,339
 
 TABLE OF THE CASES CITED. 
 
 xlv 
 
 Rex V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 Bowler 
 Bramley 
 Bray 40 
 
 Bridijinati (Dr ) 
 Brook 
 Broughton 
 Brown 
 Bunting 
 Burbage 
 Burdeti 
 Burley 
 Buttery 
 
 Page 
 375 
 87, 240 
 ■>0, 51 
 432 
 274 
 120 
 161 
 121 
 5 
 175,213 
 111 
 345 
 Cadogan (Earl of) 432 
 Carpenter 66, 71, 126, 
 127, 230 
 Carr 359 
 
 fastle Careinion 30 
 
 Castle Morton 504 
 
 Castleton 452,456 
 
 Cator 493 
 
 Catteral 330 
 
 Chadderton 241 
 
 Chester (Bp ) 523, 524 
 Chester (Mayor of) 541 
 Clarke 176, 233 
 
 203 
 
 Claviger 77, 79, 80 
 
 Cole ]8] 
 
 Combs 195 
 
 Cominissioners of 
 Land Tax 424, 428 
 
 Corden 
 
 Cornelius 
 
 Corsham 
 
 Cotton 
 
 Creswell 
 
 Crossiey 
 
 Crowther 
 
 196 
 434 
 330 
 246, 380 
 226 
 29,414 
 369 
 
 Culpepper (Sir T.) 452 
 
 Dal by 120 
 
 Davis 30, 128 
 
 Debenham 254, 422 
 
 Deborah 231 
 
 Dingier 369 
 
 . Ditchingham 527 
 
 Dixon 142 
 
 Doherty 85 
 
 Doran 218 
 
 Dowling 217 
 
 — V. Eardisland 332 
 
 — V. East Knoyle 623 
 
 — V. Eden 120 
 Vol. I. T 
 
 Pago 
 Rex V. Edwards j 12, 283 
 V. Elkins c9l 
 
 V. Ellis 120, 179 
 
 V. Eriswell 252, 373, 376 
 
 V. Erith 241 
 
 V. Ferry Fristone 241, 376 
 
 V. Fletcher 74 
 
 V. Ford 2S, 30, 35 
 
 V. Fox 139 
 
 V. Fraternity of Host- 
 
 man in Newcastle 431 
 
 — V. Frederick 
 
 — V. Gardner 
 
 — V. Gibson 
 
 — V. Gilham 
 
 — V. Gilson 
 
 — V. Gisburn 
 ■ — V. Glossop. 
 
 — V. Grant 
 
 — V. Gray 
 
 — V. Green 
 V. Greepe 
 
 — V. Grimes 
 
 — V. Grim wood 
 
 — V. Gruuden 
 
 — V, Gwyn 
 V. Haines 
 
 — V. Hall 
 
 — V. Hard wick 
 
 — V. Harrinsworlh 
 
 V. Haslingfield 
 
 V. Hathaway 
 
 V. Hawkins 
 
 V. Haynes 
 
 V. Hebden 
 
 V. Hensey 
 
 V. Heydnn 
 
 V Higgins 
 
 — V. Holland 
 
 V. Hollister 
 
 V. Holt 
 
 V. Hopper 
 
 V. Hough 
 
 V. Howe 
 
 V. Hube 
 
 V. Hughes 
 
 V. Hunt 
 
 81 
 
 26, 226, 408 
 
 345 
 
 213 
 
 522 
 
 133 
 
 216 
 
 29 
 
 47, 52 
 
 26 
 
 35 
 
 325, 326 
 
 415 
 
 357 
 
 425 
 
 396, 424 
 
 522 
 
 90,91, 111 
 
 465 
 
 401 
 
 232 
 
 195 
 
 397 
 
 215, 326, 328 
 
 485 
 
 432 
 312 
 
 427 
 
 434 
 
 407 
 
 316 
 
 179 
 
 293 
 
 219 
 
 415 
 
 180, 181,203, 
 
 221.443 
 
 V. Hutchinson 237 
 
 V. Johnson ('Mr. Justice) 
 
 454, 488 
 V. Johnson 126
 
 zlri 
 
 TABLE OF THE CASES CITED. 
 
 Rex V. Jones 
 
 V. Joliffe 
 
 V. Kea 
 
 V. Keiiiiworth 
 
 V. King 
 
 V. Kirdford 
 
 V. Knaptoft 
 
 V. Lafone 
 
 V. I.aindon 
 
 V. Lambert 
 
 V. Lee 
 
 V. Leefe 
 
 V. Lewis 
 
 V. Lingate 
 
 ■ V. Lloyd 
 
 • V. Locker 
 
 Page 
 
 15,41, 4G5 
 
 231 
 
 87,241 
 
 330 
 
 424 
 
 127 
 
 329 
 
 74 
 
 562 
 
 183 
 
 432 
 
 213, 214 
 
 281, 2S2 
 
 112 
 
 164 
 
 81 
 
 V. London (Mayor, &,c. 
 
 of) 66 
 
 V. Long Bucby 523 
 
 V. Lookup 
 V. Lucas 
 V. Luckup 
 V. Luffe 
 
 213, 214 
 
 439, 435 
 126 
 87, 158, 241 
 120 
 196 
 552 
 414 
 
 236, 432 ; 
 114 
 
 448, 465 
 427 
 
 V. Macartney 
 
 V. Malinson 
 
 V. Maltingley 
 
 V. Martin 
 
 V. Mead 
 
 V. Merceron 
 
 V. Middlezoy 
 
 V. Midlam 
 
 V. Millard 
 
 V. Moors 
 
 V. Morphew 
 
 V. Morris 
 
 V. Morton 
 
 V. Motherse 
 
 V. Mott 
 
 V. Netherthong 
 
 V. Northamptonshire 
 
 (Justices of) 
 
 V. North Petherton 
 
 V. Nuneham Courtney 241, 
 
 376 
 — — V. Nunez 
 
 V. Nutt 
 
 V. Olney 
 
 V. Osbourne 
 
 V. Page 
 
 V. Paget (Lord) 
 
 179 
 442 
 367 
 394 
 456 
 423 
 135 
 483 
 
 170 
 
 410 
 
 50, 120 
 312 
 552 
 541 
 389 
 312 
 V. Payne 214, 369, 370 
 V. Peacock 135 | 
 
 V. PearcG 524 
 
 Page 
 
 Rex T. Pemberton 319 
 
 V. Pendleton 519 
 
 V. Perry 84 
 
 V. Phipps 129 
 
 V. Piercy 125 
 
 V. Pippet 214 
 
 V. Pooley 520 
 
 V. Preston 312 
 
 V. Prosser 65 
 
 V. Purefoy 373 
 
 V. Purnell 432 
 
 V. Ravenstone 377 
 
 V. Reading 87, 241 
 
 V. Reason 235, 237 
 
 V. Reeks 509, 510 
 
 V. Ring 8 
 
 V. Ripon, (Mayor, &c. 
 
 of) 
 V. Risup 
 V. Roberts 
 V. Roddam 
 
 Rogers 
 
 Rook 
 
 Rosier 
 
 Row 
 
 Rowland 
 
 Rowley 
 V. Ryton 
 V. St. Albans 
 V. St. George 
 
 136 
 
 330, 331 
 
 180 
 
 5 
 
 196 
 
 87 
 112 
 111 
 
 40, 70 
 179 
 
 483 
 541 
 320 
 
 V. St. Mary's, Lambeth 330 
 V. St. Mary Magdalene 69 
 V. St. Mary's, Notting- 
 ham 276 
 V. St. Pancras 328, 331,340 
 V St Paul's Bedford 504, 
 527 
 V. St. Peter's 
 V. Sepulchre 
 
 Sarratt 
 
 Scammonden 
 
 Scott 
 
 Serjeant 
 
 Shacklington 
 
 Shaw 
 
 Shelly 
 
 Shearman 
 
 Smith 
 
 87 
 
 456 
 
 329, 330 
 
 551 
 
 541 
 
 77, 84 
 
 26 
 
 317, 384 
 
 430, 434 
 
 24 
 
 142, 312, 331 
 
 369, 370, 428 
 
 V. Smith and Homage 114 
 
 V. Sparkes 144 
 
 V. Stoke Gelding 453
 
 TABLE OF THE CASES CITED. 
 
 xlvii 
 
 Page 
 Rex V. Stone 95, '125, 198, 287 
 
 V. Stratford upon Avon 
 
 (Mayor of) .'54! 
 
 V. Stratton 312 
 
 V. Surry (Justices of) 434 
 
 V.Sutton 318,407 
 
 V.Taylor 24,213 
 
 V. Teale 30, 43 
 
 V. Teasdale 120 
 
 V. Telicoie 1 15 
 
 V. Thornton 370 
 
 V.Tilly 125 
 
 V. Tooke 285 
 
 V. Tower 435 
 
 V. Tounseiid 332 
 
 V. Travers 19 
 
 V. Treble 135 
 
 V. Tucker 20 
 
 V. Turner 26 109 
 
 V. Vandercomb 178 
 
 V. Varlo 541 
 
 V. Vereist 226 
 
 V. Vipont 369 
 
 V. Vyse 3^1 
 
 V. Wade 19 
 
 V. Wait 123 
 
 V. Walker 285 
 
 V. Warden of the Fleet 35, 
 
 326 
 
 V. Warley 377 
 
 V. Warminster 377 
 
 V. Watson 1*8,-287, 291 
 
 V. Wheelock 330 
 
 V. White 1 1 1 
 
 V. Whiting 50, 120 
 
 V. Whitley 91, 129 
 
 V. Williams 203 
 
 V. Wilson 1 14 
 
 V. Withers 140.407 
 
 V. Woburn 72,91, 129,278 
 
 V. Worsingham 432 
 
 V. Wych 26 
 
 V. Wylie 179 
 
 V. York (Mayor of) 325 
 
 V. Young 135 
 
 Reyner v. Pearson 100 
 
 Rhind v. Wilkinson 219 
 
 Rhode's case 121,413 
 
 Rhodes v. Ainsworth 58, 128 
 Ribbans v. Crickett 189 
 
 Rice V. Shule 2 
 
 Rich V. Jackson 551,559,567,577 
 
 Page 
 Richardson v. Allen 309 
 
 V. Anderson 402 
 
 V. Disbrow 155 
 
 V. Edmonds 545 
 
 V. Mellish 415 
 
 Rickets v. Salway 211 
 
 Rickman's case 170 
 
 Ridley V Taylor 61, 68 
 
 Ridsdale v. Sheddon 514 
 
 Right deiii. Cater v. Price 497 
 Rippener v. Wright 504 
 
 Rivers v. Grifiitiis 202 
 
 Rivers v. Garvan 350 
 
 Roberts v. Bradshaw 445, 459 
 
 v. Eddingion 381 
 
 v. Fortune 355 
 
 V. Herbert 201 
 
 Robertson V French 161,412,557 
 Robinson v. Drybrough 506 
 
 V. Smyth 17 
 
 V. Tobin 516 
 
 V. Touray 516,518 
 
 Robinson's case 178, 323, 334 
 Robson V. Hall 525 
 V. Kemp 
 
 Roche V. Campbell 
 Rocher v. Busiier 
 Rociie's case 
 Roderick v. Hovil 
 Roe V. Aylmer 
 
 V. Davis 
 
 V. Ferrars 
 
 v. Hasland 
 
 v. Jeffery 
 
 V. Parker 
 
 V. Rawlins 
 
 Rogers v. Allen 
 V. Brooks 
 
 146 
 208 
 66 
 350 
 523 
 
 430, 433 
 443 
 360 
 197 
 418 
 418 
 257 
 
 211,253 
 
 164 
 
 Rogerson v. Whittington 70 
 
 Rolf V. Dart 3.-:6 
 
 Rook wood's case 35, 36, 291, 
 
 292 
 Roscoe, ex parte 6 
 
 Ross V Hunter 194 
 
 Rothroe v. Elton 56 
 
 Roulston v. Clark 212 
 
 Rowntree v. Jacob ' 549 
 
 Rowson v. Walker 555 
 
 Rudd's case 37, 38, 54, 129 
 
 Ruddirig V. Newell 173 
 
 Rugby Charity (Trustees of) 
 V. Merry weather 1G4
 
 TABLE OF THE CASES CITED 
 
 Page j 
 Rushworlh v. Cotintess of 
 
 Pembroke 325, 327, 364 
 
 Russell's case 121 
 
 (Lord) case 18-1 
 
 Rustou's case H^ 21 
 
 Rutland's (Countess ofj case 548 
 
 S 
 
 St. George and St Margaret, 
 Parishes 159, 
 
 St. Catherine's Hospital, 
 case of, 
 
 St. Leger v. Adams ^^ 344, 
 
 Saloucci V. Woodmas 
 
 Sake V. Thomas 
 
 Salter v. Turner 
 
 Samuel v. Evans 
 
 Sanderson v. Symonds 
 
 Sandford v. Raikes 
 
 Sands v. Ledger 
 
 Sandwell v. Sandwell 
 
 Sangster v. Mazarredo 
 
 Sarum (Earl) v. Spencer 
 
 Saunders v. Pitman 
 
 Saville v. Roberts 
 
 Sawtell V. Loudon 
 
 Saxby v. Kirkns 
 
 Say and Sele's (Lord) case 
 140, 
 
 Sayer v. Kitchen 
 
 Schinnotli v. Bumstead 
 Scholey v. Goodman 
 
 Scott V. Clare 219, 
 
 V. Jones 419, 
 
 V. Lifford 
 
 V. Shearman 
 
 V. Waithman 451, 
 
 Seare v. Lord Barrington 
 
 V. Williams 
 
 Seddon v. Tutop 
 
 Selby V. Hairis 
 
 Sells V. Hoare 
 
 Sehvood v. INIildmay 533, 
 
 Senior v. Armitage 
 
 Sergerson v Sealy 
 
 Serle v.^Serle 
 
 Severn v. Olive 
 
 Seven Bishops' case 
 
 Sharp V. Scoging 
 
 Shaw V. Markham 
 
 Sheer's (Sir G.) case 
 
 197 
 
 423 
 396 
 3J8 
 414 
 393 
 318 
 515 
 547 
 2 2 
 289 
 92 
 378 
 16i 
 29 
 518 
 3!8 
 
 146 
 441 
 
 428 
 
 81 
 229 
 442 
 134 
 354 
 483 
 257 
 
 32 
 334 
 388 
 
 24 
 543 
 554 
 375 
 
 67 
 7 
 489 
 291 
 446 
 501 
 
 Page 
 Sheldon v. VVhitaker 213 
 
 Shelling v. Farmer 429 
 
 Shepherd v. Shorthouse 397 
 
 Shepard v. Giisnold 541 
 
 Sheroold v. Boone 577 
 
 Sheridan's case 371 
 
 Sliires v Glascock 500 
 
 Short v. Edwards 191 
 
 V. Lee 255,256,259, 261, 
 
 422 
 Shotter v. Friend 151, 155 
 
 Shuttleworth v. Stevens 67 
 
 Sibley v. Cuming 320 
 
 Sideways v. Dyson 441 
 
 Sidgworth v. Overend 210 
 
 Sidney's (Algernon) case 97, 485 
 
 Sikes V. Marshall 
 Simons v. Smith 
 Simpson v. Smith 
 Sinclair v. Fraser 
 Sinizenick v. Lucas 
 Skaile v. Jackson 
 Skinner v. Stocks 
 Skipp V. Harwood 
 Skipwith V. Shirley 
 Skrine v. Elmore 
 Slack V. Buchanan 
 Slade's case 
 Sloman v. Heme 
 Sloper V. Allen 
 Smalt V. Whitmill 
 Smartle v. Williams 
 Smith V. Beadnall 
 
 v.Blackham 
 
 V. Blandy 
 
 V. Cator 
 
 V. Coney 
 
 V. Davies 
 
 V. Doe dem. 
 
 Jersey 
 
 266 
 
 134 
 
 274 
 
 350, 351 
 
 335 
 
 108 
 
 49 
 
 26 
 
 457 
 
 528 
 
 109 
 
 333 
 
 140 
 
 211 
 
 4 
 
 461, 462 
 
 69 
 
 65 
 
 110 
 
 528 
 
 532 
 
 430 
 
 Earl of 
 
 544, 545 
 
 v. Duke of Northum- 
 
 berland 438 
 
 . V. Evans 498 
 
 V. Fuge 411 
 
 V. Harris 50 
 
 V. Lyon 92 
 
 V Prager 51, 55, 123 
 
 V. Rummens 121,339 
 
 V.Taylor 227,228 
 
 V. Veale 365 
 
 V. Woodward 458 
 
 V. Young 1 10, 220, 446 
 
 Smith's case 1 17, 154
 
 TABLE OF THE CASES CITED. 
 
 xlix 
 
 Page 
 Smith V. Mingay 606 
 
 Snead v. Robinson L»4l 
 
 Snow V. Phillipps 58 
 
 Somerset (Duke of^ v. France 
 
 173, 174 
 Southampton's (Lord) case 98 
 Southampton (Mayor of; v. 
 
 Graves 431 
 
 Sparry's case 333 
 
 Sparin v. Drax 360 
 
 Spence v. Stuart 5 
 
 Spenceley v. De Willot 1 72, 272 
 
 . V. Schullenberg 146 
 
 Spencer v. Golding 129 
 
 Spieres v. Parlier 198 
 
 Sponsonby's case 122 
 
 Spy bey v. Hyde 202 
 
 Squire v. Hunt 208, 209 
 
 Stafford's (Lord; case 9J, 158, 
 
 371 
 Stafford v. Clark 322, 335 
 
 Stainer v. Burgesses of Droit- 
 
 vvich 423 
 
 Stammers v. Dixon 5^.3 
 
 Standen v. Standen 545 
 
 Stanley v. White 174, 258 
 
 Staples V. Okines 67 
 
 Stapleton v. Staplelon 241 
 
 Stead V. Heaton 255 
 
 Stephens v. Crichton 15 
 
 Stephen v. Moss 241, 242,244 
 
 V. Pinney 221 
 
 Stevenson v. Healhcote 548 
 
 Stocfleth V. De Tastet 89 
 
 Sioddart v. Pahiicr COG, 2l4 
 
 Stone V. Bale 553 
 
 V. r.lackbiirn 267 
 
 V. Forsyth 397 
 
 Stone's case 94, 95 
 
 Stonehouse v, Evelyn 499 
 
 Stoveld V. Brewin 187 
 
 Strafford's (Lord) ca.-<e 288 
 
 Stranger v. Searle 485, 493 
 
 Strangroom v. Marquis of 
 
 Townsend 576 
 
 Stralton v. Rastell 108 
 
 Street v. Brown 438 
 
 Strolher v. Willan 411 
 
 Strong V. Rule 208 
 
 Stump V. Ayliff 404 
 
 Surtees v. Hubbard 445 
 
 Sussex (Earl of; v. Temple 361 
 
 Page 
 Sutton V. Bishop 30, 320 
 
 V. Buck 160 
 
 V. Coldfield, Corp. of, 
 
 V. Wilson 71 
 
 Swallow V. Beaumont 212 
 
 Swan's case 20 3 
 
 Swendson's case 84 
 
 Swinnerton v. Marquis of 
 
 Stafford 479 
 
 Swire v. Bell 473, 476 
 
 Sydenham v.^ Rand 4 
 
 Sykes v. Dunbar 289 
 
 Symmons V. Knox 213 
 
 Talbot V. Hodson 
 
 V. Villeboys 
 
 Tanner v. Taylor 
 Taplin V. Atty 
 Tarleton v. Tarleton 
 Taylor v. Cooke 
 
 V. Cole 
 
 V. Hague 
 
 V. Hooman 
 
 V. Jones 
 
 V. Royal Exch. 
 
 Company 
 
 V. Scott 
 
 Taylor's case 
 Teed v. Elworthy 
 
 V. Martin 
 
 Tellard v. Shebbeare 
 
 475, 476 
 430 
 289 
 441 
 
 352, 354 
 493 
 359 
 507 
 216 
 461 
 
 Ass. 
 
 15 
 26 
 121 
 210 
 411 
 252 
 60 
 212 
 527 
 355 
 
 Temins v. Smith 
 Tempany v. Bernard 
 Tempest v. Rawlins 
 Terry v Hutchinson 
 Tewkesbury (Bailiff, &.c. ofj 
 
 V. Bricknell ' 211, 541 
 
 Thaire v. Thaire 472 
 
 Thanet (Lord) v. Paterson 393 
 Thelluson v. Cosling 407 
 
 Theobald v. Tregott 
 Thomas's case 
 Thomas v. Foyle 
 
 V. Eraser 
 
 V. Thomas 
 
 lii), 
 
 Thompson's case 
 Thompson v. Donaldson 
 
 V. Smith 
 
 V. Trevanion 
 
 129 
 115 
 412- 
 576 
 108, 536 
 111 
 334 
 346 
 232
 
 TABLE OF THE CASES CITED. 
 
 Thornton's case 
 Thornton v. Jones 
 
 V, Lyster 
 
 V. Roy. Ex. Ar^s. 
 
 Company 
 Thoroughgood's case 
 Threlfall v. Webster 
 
 Page 
 111 
 209 
 215 
 
 290 
 4GS 
 433 
 
 Trockmorton's (Sir N.) case 1 15 
 Throgmorton v. Walton 197 
 
 Thurle v. Madison 461 
 
 Thurston v. Slatford 311, 387 
 Thwaites v. Richardson 93 
 
 Thynne v. Protheroe 524 
 
 Tiley V. Cowling 88 
 
 Tilley's case 364 
 
 Tillotson, ex parte 5 
 
 Tinckler's case 235 
 
 Tinckler V. Walpole 411 
 
 Tinney v. Tinney 548 
 
 Tippet's case 1 1 1 
 
 Tisdale v. Sir W. Essex 527 
 
 Title V. Grevet 276 
 
 Tonge's case 39, 1 15 
 
 Tooke's (H.) case 17-3 
 
 Tooker v. Duke of Beaufort 375, 
 
 3S5 
 Toole V. Medlir.ott 
 Totty V. Nesbitt 
 Towers v. Moor 
 V. Sir J. Osborne 
 
 Towle's case 
 Townend v. Downing 
 Townley's case 
 Townsend v. Ives 
 
 (Marq. oQ 
 
 Strangrooin 
 Travis v. Chaloner 
 Treble's case 
 Trelawney v. Thomas, 
 
 v. Coleman 
 
 Tremaine v. Faith 
 Trevivan v. Lawrence, 
 Trowel v. Castle 
 Tucker v. Cracklin 
 Tuckey v. Flower 
 Tuffnell V. Page 
 Turner v. Gethin 
 
 v. Pearte 
 
 Tyler v. Duke of Leeds 
 Tyrwhiit v. Wynne 
 Ty\et V. Dalrymple 
 
 154 
 457 
 
 540 
 529 
 204 
 62 
 215 
 497 
 
 v. 
 
 576 
 
 325, 361 
 
 122 
 
 54, 62 
 
 82 
 
 7 
 
 320 
 
 392 
 
 208 
 
 424 
 
 494 
 
 429 
 
 131,267 
 105 
 175 
 534 
 
 Page 
 
 Uhde V. Wallers 555, 556 
 
 Uncle V. Watson 258 
 
 Underbill v. Durham 405 
 
 Upton V. Curtis 64 
 
 Usher's case 122 
 
 Vaillainl v. Dodemead 144, 147 
 
 Vallance v. Dewer 556 
 
 Vandercomb v. Abbott 426 
 
 Vane's (Sir H.) case 312 
 
 (Lord) 92 
 
 Van Wort v. Wolley 106 
 
 Vaughan's case 178, 457 
 
 Vaughan v. I'arnes 187 
 
 Venning v. Leckie 528 
 
 Vernon's case 549 
 
 Vicary's case 92 
 
 Ville de Varsovie, case of 28, '^9 
 
 Villers V. Beaumont 549, 550 
 
 Villiers v. Villiers 457 
 
 Viney v. Barres 171 
 
 Voooht V. Winch 320, 335 
 
 Vowels V. Young 238, 240 
 
 W 
 
 Waddington v. Bristow 
 
 V. Francis 
 
 Wade V. Beaseley 
 V. Broughton 
 
 529 
 
 511 
 190 
 
 488 
 
 Wadley v. Buliss 257, 543 
 
 Wadsworth v. Ilainshaw 143 
 
 VVagstaffv. Wagstaff 
 Wain v. Wallers 
 Wakefield's case 
 Waldridge v. Kennison 
 Waldron v. Coombe 
 Walker's case 
 Walker v. Kearney 
 Walker v. Walker, 
 V. Witter 
 
 Wallace v. Cook 
 Waller v Horsefall 
 Wallis's ase 
 Wallis V. Delancy 
 Walpole (Ld ) v. Cholmon 
 
 deley 636 
 
 494 
 559 
 4 
 109 
 381 
 182 
 28.29 
 
 497, 574 
 351 
 413 
 
 457,519 
 204 
 
 473, 474
 
 TABLE OF THE CASES CITED. 
 
 Page 
 Walter t. Holman 260 
 
 Walton V. Hastings 512 
 
 ^ V. Hobbs 154 
 
 V. Shelley . 43, 46 
 
 Ward V. Apprice 438 
 
 V. Bourne 73 
 
 V. Heydon 75 
 
 V. Shepherd 163 
 
 V. Wells 367, 473 
 
 V. Wilkinson 49, 327 
 
 Wardell v. Fermor 473, 474 
 
 Wardel's case 207 
 
 Warneford v. Warneford 498 
 
 Warren v. Greiiville 255 
 
 V. Stagij 560 
 
 Warrener v. Giles 428 
 
 Warrington v. Ferbor 528 
 
 Warwick's (Loril) case 32, 35 
 Warwick v. Bruce 5i0 
 
 Warrickhall's case 111, 116 
 
 Watkins v. Hewlett 526 
 
 V. Towers 188 
 
 V. Vince 104, 528 
 
 W atson's case 95, 96, 97, 22 1 , 
 
 283, 285, 289, 292 
 
 Watson V. King 
 Watt's case 
 Watts V. Thorpe 
 Waugli V, Russel 
 Weall V. King 
 Webb V. Pelts 
 
 V. Plunier 
 
 — ^^ V. Smith 
 
 Webber v. Maddocks 
 Weeks v. Maillurdet 
 
 171 
 
 121, 123. 124 
 
 266 
 
 212 
 
 208 
 251 
 554 
 
 89 
 516 
 212 
 
 V. Sparke 248, 249, 252 
 
 Weir V. Aberdeen 515 
 
 Welborne's case 235 
 
 Welch V. Richards 428 
 
 Weld V. Hornby 541 
 
 Welland v. Moss 508 
 
 Welier v. Foundling Hospi- 
 tal 70 
 Well's case 122 
 Westbeech v. Kennedy 499 
 Westbeer's case 36, 369 
 West V. Andrews 21 1 
 West's (Dr.) case 38, 277, 481 , 
 
 Weston V Ernes 555 
 
 Wetherston v. Edington 448 
 
 Wharum v. Routledge 441 
 
 534, 
 
 Will 
 Will 
 Will 
 Will 
 Will 
 
 Page 
 333 
 451 
 392 
 Hi 
 436 
 335 
 
 93 
 21, 111 
 
 85 
 553 
 208, 556 
 105 
 411 
 238 
 208 
 520 
 528 
 356 
 553 
 410 
 
 40 
 208 
 529 
 195, 
 219 
 
 87 
 262 
 101 
 143 
 171 
 365 
 
 V. Yonnghusband 456 
 
 amson v. Allison 206 
 
 nsham v. Matthews 5 
 
 Whaiely v. Menheim 
 Wheeler v Atkins 
 
 V. Lowth 
 
 Wheeling's case 
 Whitaker v. Izod 
 Whilbread v. May 
 Whitcomb v. Whiting 
 White's case 
 White V. Cuyler 
 
 V. Sayer 
 
 V. Wilson 
 
 Whitehead v. Tucket 
 
 V. Wynne 
 
 Whitelock v. Baker 
 Whitwell V. Bennet 
 
 V. Dimsdale 
 
 Whitworth v, Crockett 
 Widriugton's case 
 Wigglesworth v. Dallison 
 Wihen v. Law 
 Wilde's case 
 Wildman v. Glossop 
 Wilks V. Atkinson 
 Williams v. E. I. Company 
 
 V. Johnson 
 V. Jones 
 V. Innes 
 V. Mundie 
 V. Sills • 
 V. Williams 
 
 s V. Peckham 
 
 s's case 
 
 son V. Clerk, 
 
 — V. Gilbert 
 
 — V. Hodges 
 
 — V. Hart 
 
 — V. Rastell 
 
 — V. Rogers 
 
 — V. Turner 
 V. Vysar 
 
 140, 
 
 Wiltzie V. Adamson 
 V/inch V. Winchester 
 Winsmore v. Greenbank 
 Wishaw V. Barnes 
 Whitnell v. Gartham 
 Wood V. Braddick 
 
 V. Drury 
 
 V. Strickland 
 
 7 
 117, 118 
 216 
 215 
 197 
 561 
 144, 145 
 428 
 102 
 506 
 256 
 560, 569 
 81,82 
 49 
 251,542 
 93, 362 
 473 
 442
 
 Hi 
 
 TABLE OF THE CASES CITED. 
 
 Page . 
 Wood V, Veale 166 
 
 Woodbridge v. Spooner 555 
 
 Woodcock's case 85, 235, 309 
 Woodcraft v. Kynaston 385 
 
 Woodford V. Ashley 213 
 
 Wood n as v. Mason 386 
 
 Woodnorth v. Lord Cobhani 
 
 260, 261 
 Woodward's case K)0 
 
 Woodyer v. Iladdon 164 
 
 Woolam V. Hearn 569, 573 
 
 WooUet V. Roberts 358 
 
 Wolley V. Brownhil! 259 
 
 Worsley v. Filisker 315 
 
 Wright V. Barlow 469 
 
 , V. Litter 236 
 
 V. Pindar 314 
 
 . -J .-- — V. Paulin 73 
 
 V, Sbarpe 313 
 
 . V. Wakeford 469, 470 
 
 Wright's c^sQ 390 
 
 Page 
 362 
 
 287 
 362 
 133, 
 495 
 
 Wynne (Sir W. W.) v. Tyr- 
 whitt 477 
 
 Wrottesly v, Bendish 
 Wyat V. Gore 
 Wych V. Meal 
 Wyndham»v. Chetwynd 
 
 Yabesley v. Doble 
 Yarley v. Turnoek 
 Yate V. Leigh 
 Yeates v. Pirn 
 Yewin's case 
 York V. Blott 
 Young V. Bairnes 
 -r.^-,,—^ — V. Lynch 
 V. Smith 
 
 106 
 
 211 
 
 259 
 
 558 
 
 273 
 
 67 
 
 60 
 
 431 
 
 91 
 
 V. Wright 102, 105, 2Q5, 
 466
 
 TREATISE 
 
 ON THE 
 
 LiA"W OF EVIBENCE. 
 
 BOOK THE FIRST. 
 
 The arrangement, which has been adopted in the following Plan of iha 
 treatise, is that which appeared the most simple and perspicuous. ^^°^^' 
 In the first volume, the subject of evidence is considered chiefly 
 with reference to its general nature, and the general principles on 
 whicl* it is admitted in our courts of justice. This volume consists 
 of two parts: the one relating principally to parol or unwritten 
 evidence, the other to written evidence. The second volume treats 
 of evidence more in detail, with reference to particular kinds of ac- 
 tion an.d forms of pleading. 
 
 The first question which occurs, in entering on the subject of 
 evidence, relates to the method of enforcing the attendance of wit- 
 nesses at the trial of a cause. This is treated of in the first chapter. 
 
 If a witness attends, and is ready to give evidence, the question 
 next in order is, whether his testimony can be admitted, or whether 
 there is any objection to his competence? Objections to the com- 
 petency of witnesses are of four kinds. The first ground of incom- 
 petence is want of reason or understanding: a second ground is 
 defect of religious principle: a third ground arises from conviction 
 of certain crimes: the fourth and most common cause of incompe- 
 tency is interest. 
 
 VOL. I. I
 
 Of the Attendance of Witnesses. [Ch. 1. 
 
 These several grounds of objection are the subjects of the sec- 
 ond, third, fourth, and fifth chapters. 
 
 Besides the objections above mentioned, there is one other, of a 
 more partial and limited kind, which is founded on the professional 
 relation between attorney and client- The extent and privilege of 
 this professional confidence are considered in the sixth chapter. 
 
 After ascertaining whether a witness is competent to give evi- 
 dence, the next question will be, what evidence ought to be given, 
 and how the witness ought to be examined? The seventh chapter, 
 therefore, treats of the principal general rules of evidence, and of the 
 general nature of proofs; and the eighth treats of the regular mode 
 of examination. The first part of the present volume concludes 
 with an inquiry into bills of exception and demurrers to evidence. 
 
 The second part, which relates to written evidence, treats of 
 records, of the admissibility of verdicts, judgments, and other judi- 
 cial proceedings, and of the manner in which they are to be regu- 
 larly proved. Public writings, not of a judicial nature, and the in- 
 spection of such writings, are next considered; after which follows 
 an inquiry into the proof of private writings, the requisite of stamps 
 on written instruments, and, lastly, into the admissibility of parol 
 evidence, by which written instruments may be explained or varied. 
 
 PART THE FIRST. 
 
 CHAPTER L 
 
 Of the Attendance of Witnesses, 
 
 Subpoena. The process which our courts of law have instituted for the 
 
 purpose of compelling the attendance of witnesses, is the writ of 
 subpoena ad testificandum, (a) This writ commands the witness to 
 
 (a) See Note 1, p. 1.
 
 Ch. 1.] Of the Attendance of Witnesses. 
 
 appear at the trial, to testify what he knows in the cause, under 
 the penally of 10/. to be forfeited to the king.(l) (o) And the 
 stai. 5 Eliz. c. 9, s. 12, (which refers to the process of courts of 5 Eliz. c ». 
 record, for the attendance of witnesses, as process well known and 
 then in use, (2) gives an additional remedy, by enacting, that 
 " if any person (upon whom any process out of a court of record 
 shall be served, to testify concerning any cause or matter depend- 
 ing there, and having tendered to him, according to his counte- 
 nance or calling, such reasonable sum of money for his costs and 
 charges, (^) as, with regard to the distance of the place, is neces- 
 sary to be allowed) do not appear according to the tenor of the 
 process, not having a lawful and reasonable cause to the contra- 
 ry, he shall forfeit for every such offence 10/., and yield such fur- 
 ther recompense to the party grieved, as, by the discretion of the 
 judge of the court out of which the process issues, shall be award- 
 ed."(c) 
 
 If a witness has in his possession any deeds or writings, which Subpoena 
 are required at the trial, a special clause must be inserted in the "^es tecum, 
 subpoena, called a duces tecum, (d) commanding him to bring them 
 with him. When the writings are in possession of the adverse 
 party or his attorney, notice should be given to produce them,(e) Police 
 and if, after proof of a reasonable notice, they are refused, sec- 
 ondary evidence of the contents will be admitted. It v.ill not 
 be necessary to give notice to the defendant in person; giving 
 it to his attorney will be sufficient even in penal actions. (3) (/) 
 This writ of subpoena duces tecum, as well as the other writ of 
 subpcena ad testificandum, is compulsory upon the witness. And 
 though it will be a question for the consideration of the judge 
 at the trial, whether in any particular case the actiial production 
 of writings should be enforced, yet the witness ought nhvays to 
 have them ready to be produced, if required, in obedience to the 
 judicial mandate. (4) From the earliest times, our courts of 
 law, in order to give effect to their |)roceedings, have resorted 
 
 (1) See form of this writ, on a trial, v. Winter, 3 T. R. 306. Sea form of 
 in Tidd. App. p. 381; and on a writ writ, Tidd. App. 332. And see fur- 
 of inquiry, p. 241. ther as to such notice, infra. Chap. 8. 
 
 (2) See 9 East, 484. Sec. 1. 
 
 (3) Attorney General v. Le Mer- (4) Amey v. Long, 9 East, 485. 
 chant, 2 T. R. 203. n. Gates q. t. Field v. Beaumont, 1 Swanst. 209. 
 
 (a) See Note 2, p. I. (6) See Note 3, p. 7. (c) See Note 4, p. II. {d) See 
 Note 5, p. 11. (e) See Note 6, p. 12. (/) See Note 7, p. 13.
 
 4 Of the Attendance of Witnesses. [Ch. 1. 
 
 to these compulsory measures for the production of evidence ; 
 measures obviously csseniial to the existence and constitution of 
 courts of justice, (fl) 
 
 Service. The writ of subpoena, when sued out is to be regularly served 
 
 on the witness; and as only four witnesses can be included in 
 one writ or subpa'na,(l) several writs are frequently necessary. (6) 
 In order to save expense, it is settled, that service of a ticket, con- 
 taining the substance of the writ, will be as effectual as service 
 of the writ iiself.(2) (c) The writ or ticket should be served 
 
 When. personally on the witness, (3) and in lensonable time(f/) before the 
 
 day of trial, that he may sufFer the less inconvenience from his 
 attendance on the court. (4) Notice to a witness in London at 
 two in the afternoon, requiring him to attend the sittings at 
 AVestn)inster in the course of the same evening, has been held 
 to be too late. (5) If the witness, whose attendance is required, 
 be a married woman, it will be necessary to serve the subpoena 
 upon her personally, and the tender of the expenses should be 
 made to her, and not to her husband. (6) If a cause appointed 
 for one sitting be made a remanet, the subpoena must be re-sealed 
 and re-served. (7) 
 
 Privilege from Witnesses, as well as the parties in a suit, are protected by 
 courts of justice and privileged from arrest, (e) during the neces- 
 sary time consumed by them in going to the place where their 
 attendance is required, in staying there for the purpose of such 
 attendance, and in returning from the place. (8) (/) And, in or- 
 dinary cases, it is not necessary for the protection of a witness, 
 that he should have been served witii a subpoena, if, upon appli- 
 
 For what time, cation to him, he consented to attend without one. (9) (g) A reason- 
 able time is allowed to the witness for going and returning; and 
 
 (1) Cowp. 846. (5) 2 Tidd. Pr. 856. 
 
 (2) Goodwin v. West, Cro. Car. (6) Cro. El. 122. 1 Jon. 430, S. P. 
 522, 540. Maddison v. Shore, 5 Mod. (7) Sydenham v. Rand, 24 G. 3. 
 355, S. P. See form of ticket on writ K. B , cited from MS. in 2 Tidd. Pr. 
 of inquir}', in Tidd. App. p. 241; and S55. 
 
 on trial, id. p. S31. (S) 2 RolL Ab. 272. Lightfoot v. 
 
 (3) Sinnlt V. Whitmiil, 2 Stra. 1054. Cameron, 2 Black. Rep. 1113. Mee- 
 Wakefield's case. Rep. temp Hard, kins v. Smith, 1 H. Bi 636. Randall 
 313, S. P. V. Gurney, 3 Barn. & Aid. 252. 
 
 (4) Hammond v. Stewart, 1 Stra. (9) Lord Kenyon, C. J., in Arding v. 
 509. Flower, 8 T. R. 536. 1 Tidd. Pr. 198. 
 
 (a) See Notes, p. 13. (6) See Note 9, p. 14. (c) See Note 10, p. 14. (rf) See 
 Notell,p. 14. (c)8eeNotel2,p. 14 (/) Sec Note 13, p. 15. (^) See Note 14, p. 16.
 
 Ch. 1.] 0/ the Attendance of Witnesses, 6 
 
 in making this allowance the courts are disposed to bo liberal.(l)(a) 
 This privilege has been extended to a party in the suit attending To whom, 
 on an arbitration under an order of nisi prius,{2) or on the ex- 
 ecution of a writ of inquiry, (3) and to |)crsons attending the 
 insolvent debtors' court. (4) A bankrupt, also, attending a meet- 
 ing of commissioners in pursuance of a notice, and wiinesses 
 attending upon summons, are protected from arrest at the suit of 
 a creditor. (5) (6) And, by the mutiny-act, witnesses are privi- 
 leged from arrest during their necessary attendance on courts 
 martial, in the same manner as witnesses attending a court of 
 lavv.(c) A witness is not privileged from being arrested by his bail; 
 the bail may take him, after he has finished his evidence, for the 
 purpose of surrendering him.(6)((/) 
 
 A subpoena can have no effect, where the witness is in cuslo- Habeas? corpm 
 dy, or on board a ship under the command of an officer, who refu- du,n " 
 ses to allow his attendance. (e) The course, then, is to sue out a 
 \\v\\.oi habeas corpus ad teslificandxim;{J){f) for which purpose ap- 
 plication ought to be made to the court or to a judge, upon affi- 
 davit of the party applying, stating that he is a martial witness, 
 and willing to attend. (S) (^) Upon this application the court in 
 its discretion will make a rule, or the judge will grant his fiat{h) 
 or a writ, (9) which is then sued out, signed, and sealed. ( 10) (i) 
 The writ should be left with the sheriff:' or other officer, who will be 
 bound to bring(A;) up the body, on being paid his reasonable charg- 
 es. (/) If the witness be a prisoner of war, he may be examined 
 
 (1) 2 Black. Rep. 1113. Hatch v. (6) Ex parte Lyne, 1 Ry. & Mo. 
 Blisset, Gilb. Cas. 308, cited 2 Stra. N. P. R.132. Lord Tenterden refused 
 9S6. 13 East, 16, n.(a) Willingham v. to discharge him, on motion. 
 MaUhews, 2 Marshall, Rep. 57. See (7) Tidd. Pr. 858. Ex parte Til- 
 Randall V. Gurney, 3 Barn. & Aid. 252, ioison, 1 Stark. N. P. C. 470. See 
 and 1 Tidd. Pr. 198, where the cases on form of affidavit in Tidd's App. c. 33, 
 this subject are collected. s. 37, p. 332. 
 
 (2) Spencer v. Stewart, 3 East, 89. (S) 11. v. Roddam, Cowp. 672. On 
 Randall v. Gurney, 3 Barn. & Aid. the trial of Sir John Frein for high 
 252. treason, Lord C. J. Holt, on the np- 
 
 (3) 4 Moore, 34. plication of the prisoner, ordered his 
 
 (4) 6 Taunt. 356. clerk to prepare a warrant for a habeas 
 
 (5) 5 Geo. 2. c. 30, §5. 6 G. 4. corpus, 4 St. Tr. 600, fol. ed. 13. 
 c. 16. s. 117. Ardi.ng V. Flower, 8 T. R. Howell's St. Tr. 3. And see Layer's 
 534. 2 Blac. Rep 1142. Kidder v. case, Fortesc. Rep. 396. 
 
 Williams, 4 T. R. 377. Spencer v. (9) R. v. Burbuge, 3 Burr. 1440. 
 Stuart, 3 East, 89. Ex parte Byne, (10) Tidd. Pr. 858. 
 
 1 Ves. & Beam. 316. 1 Tidd. Pr. 199. 
 
 (a) See Note 15, p. 16. (6) See Note 16, p. 16. (c) See Note 17, p. 16. (d) 
 Sea Note 18, p. 17. (e) See Note 19, p. 17. (/) See Note 20, p. 18. (^) See 
 Note 21, p. 18. (A) See Note 22, p. 19. (i) See Note 23, p. 19. ( A: ) See Nolo 
 S4, p. 19. (I) 8«e Note 25, p. 19.
 
 6 Of the Attendance of Witnesses. [Ch. 1. 
 
 by consent on interrogatories, but cannot be brought up wiihout an 
 order from the secretary of state. (1) (a) 
 
 It has been doubted, whether jiersons in custody could be brought 
 up as witnesses by writ of habeas corpus, to give evidence before 
 any oihtir courts except those at Westnninster; but now, by stat. 43 
 
 43G. 3. c 140. Q_ 2, c. 140, it is enacted, xbat a judge of either of the courts may, 
 at his discretion, award such writ for bringing a prisoner, detained 
 in any gaol in England, before a court martial, or before commis- 
 sioners of bankrupt, commissioners for auditing the public accounts, 
 or other conuuissioners acting by virtue of any royal commission 
 
 44G. 3. c. 102. o'" \^'3'''3nt- ^nJ t'i6 Stat. 44 G. 3, c. 102, authorizes the judges 
 of the court of King's Bench, or Common Pleas, or Exchequer, in 
 England or Ireland, or justices of oyer aiid terminer or gaol de- 
 livery (being such judge or baron,) to award writs o( habeas corpus 
 for bringing prisoners detained in gaol before any of the courts, or 
 any sitting at nisi prins, or before any court of record in those parts 
 of the United Kingdom, to be there examined as witnesses in any 
 civil or criminal cause. By the same act, justices of great sessions 
 in Wales and the countv palatine of Chester have the same au- 
 thority within the limits of their jurisdiction. The application for 
 a wTit of habeas corpus under tbis statute ought to be made to a 
 judge out of court. (2) (6) 
 
 Payment of ^^ witness is bound to appear in civil cases, unless his reasona- 
 
 fixpenses. ble expenses, for going to and returning from the trial, and for his 
 reasonable stay at the place, be tendered to him at the time of serv- 
 ing the subpoena; nor, if he appears, is he bound to give evidence, 
 till such charges are actually paid or tendered, (3) (c) except he 
 reside within the weekly bills of mortality, and be summoned to 
 give evidence within them, in which case it is usual to leave a 
 shilling with the subpCEna ticket. (4) The necessity of this previous 
 tender arises from the special provision in the act of Elizabeth, be- 
 
 (1) Furly V. Newham, 2 Doug. Rep. 36. Puller v. Prentice, 1 H, Blac. 
 419. 49. Hallett v. Mears, 13 East, 15. 
 
 (2) Gordon's case, 2 I\Iaule & Selw. Ex parte Roscoe, 1 Merivale, Rep. 
 582. 191. 
 
 (3) Chapman v. Poynton, 2 Stra. (4) 3 Blac. Com. 379. Tidd. Pr. 
 1150. 13 East, 16 n. a. S. C, more 856,865. 
 
 fully stated. Bowles v. Johnson, iBlac. 
 
 (a) S«e Not« 26, p. 21. (6) See Note 27, p. 21. (c) See Note 28, p. 28-
 
 Cli. !.] Of ike Attendance of Witnesses. 7 
 
 fore cited. If a necessary witness is brought over from a foreign Foreign wit- 
 country, whether brought after or before the commencement of an 
 action, the reasonable expenses both of his coming to this country, 
 and of his subsistence here pending the action, and of his return, 
 will be allowed in the taxation of costs, provided he is brought 
 over bona fide for the purposes of the particular action(l). Wiih For loss of 
 respect to compensation for loss of time, the general rule is, that it 
 ought not to be allowed ;(2) some compensation has been usually 
 allowed to medical men and attornies, but not to others. (*) (a) 
 
 Tf a wellness, who has been duly served with the writ, and has Remedies for 
 had a tender of the reasonable expenses, omit to attend at the trial ^°"'^ 
 without a sufficient cause, he is liable to be proceeded against in 
 one of three ways. The first and more usual course of pioceeding, 
 is by attachment for a contempt of the process of the court, (3) which Attachment, 
 appears to be as ancient as the common law itself. (4) In order to 
 ground this summary proceeding, it will not only be necessary to 
 show an ill motive in the witness, or negligence and inattention 
 to the process, of the court, but also to prove, that the witness was 
 personally served, (.5) and that his reasonable expenses were paid 
 or tendered at the time of the service of the subpoena. (6) (6) A 
 second remedy is by a special action on the case for damages, at 
 common law.(7)(c) The third, and last, is an action on the stat. Action, 
 5 Ellz. c. 9, s. 12, for the penalty of £10, and also for the further 
 recompense recoverable under that statute. (c?) This action for a 
 further recompense will not lie, unless the amount has been pre- 
 viously assessed by the court, out of which the process issued: 
 neither the jury nor the judge at nisi prius being competent to 
 
 (1) Tremain V. Faith, 6 Taunt. 88. 1 846. Doug 561. Biandford v. De 
 Marshall, 563, S. C Tastet, 5 Taunt. 260. Home v. Smith, 
 
 (2) Moor V. Adam, 5 Maule & Selw. 6 Taunt. 9. 1 Marshall, 410, S. C. 
 156. Willis V. Peckham, 1 Brod. Barrow v. Humphreys, 3 Barn. & Aid. 
 & Bing. 515- Lowry v. Doubleday, 598. 
 
 5 Maule tc Selw. 159, (b.) Severn v. (4) See Pearson v. lies, Doug. 561. 
 
 Olive, 3 Brod. & Bing. 72. 6 Moore, Amey v. Long, 9 East, 483. 
 
 239. (5) 2,Stra. 1054. 
 
 (3) 2 Ld. Raym. 1528. 1 Stra. (6) Ante, p. 6. Tidd. Pr. 858. 
 
 510. 2 Stra. 810, 1054, 1150. Cowp. (7) Pearson v. lies, Doug. 561. 
 
 (*) Lord Ellenborough, in the case of Moor v. Adam, after citing the case of Low- 
 ry V. Doubleday, added, " he believed the practice had been to make allowance to 
 medical men and attornies, but not to others." 
 
 (a) See Note 29, p. 24. (b) See Note 30, p. 28. (c) See Note 31, p. 28- 
 (d) See Note 32, p. 28.
 
 8 Of the Attendance of Witnesses. [Ch. 1. 
 
 make the assessinent.(l) When the assessment has been made, 
 an action of debt will lie. (a) 
 
 In criminal ca- The meaiis of compelling the attendance of witnesses In crim- 
 
 SC3. 
 
 inal cases are of two kinds ;(2) first, by process of subpoena, 
 Subpcena. for disobedience to which the person served with the process is 
 liable to an attachmeni;(3)(6) (c) or, secondly, the justice or coro- 
 ner, who takes the information of witnesses, may, at the time of 
 Recognizance, {giving it, or at any time before tlie trial, bind them over to ap- 
 pear; and, if they refuse to come or to be bound over, may com- 
 mit them for a contempt. (4) This proceeding by recognizance is 
 the ordinary and more effectual method. ((/) 
 
 Subpoena for Jn prosecutions for misdemeanors the defendant has been, 
 from the earliest limes, allowed the writ of subpoena. But 
 prisoners have no right, by the common law, to this process in 
 capital cases, without the special order of the court. (4) For- 
 merly, in such cases, a prisoner was put upon his trial under a 
 twofold disadvantage; he was unable to compel the attendance 
 of witnesses, and, if they voluntarily attended, their evidence, 
 not being given on oath, received less credit than the evidence 
 
 7 W. 3, 0. 3. on the part of the prosecution. (*) By stat. 7 W. 3, c. 3, s. 7, 
 all persons indicted for any high treason, whereby corruption 
 of blood may ensue, shall have the like process of the court, 
 where they shall be tried, to compel their witnesses to appear 
 for them, as is usually granted to compel witnesses to appear 
 
 7Ann. Bt. 1, against them. And now, as the stat. 1 Ann. st. 1, c. 9, s. 3, 
 enacts, that all witnesses, on behalf of a prisoner on a trial for 
 treason or felony, shall be sworn in the same manner as wit- 
 nesses for the crown, and be liable to all the penalties of perjury, 
 
 (1) Pearson v. lies, Doug. 561. An- crown-office, requiring the witness to 
 te, p. 3. appear at the ensuing assizes in the 
 
 (2) 2 Hale P. C. 281. Bonnet v. country; and the court of K. B. granted 
 Watson, 3 INIaule & Seivv. 1. an attachment. 
 
 (3) R. V. Ring, 8 T. R. 585. The (4) 4 Biac. Com. 359. 2 Hawk. P. 
 Bubpcena in this case issued from the C. c. 46, s. 17. 
 
 (*) Many instances occur among the early State Trials, of witnesses refusing to 
 come into court to be examined on behalf of the accused: and there are some, in 
 which witnesses have been peremptorily sent out of court by the judge, and not al- 
 lowed to give evidence. 
 
 (o) See Note 83, p. 28. (6) See Note 34, p. 29. (c) See Note 36, p. 29. (d) Se« 
 Note 86, p 29.
 
 Ch. ].] Of the Attembtnce of Witnesses. 9 
 
 process of subpoena may be taken out by the prisoner in any case 
 whatever, (a) 
 
 In order to provide for the appearance of witnesses, to answer 
 in cases where warrants are not usually issued, and to give 
 evidence in criminal prosecutions in any part of the United 
 Kingdoni, it is enacted by a late act of parliament, slat. 45, G. 3, ^^ G!. 3. c 92. 
 c. 92, s. 8, and s. 4, that the service of a writ of subpoena or 
 other process, in any one of the parts of the United Kingdom, 
 shall be as effectual to compel his appearance in any other of 
 the parts of ilie same, as if the process had been seived in that 
 part where tlie person is required to appear. And if the person 
 served does not appear, the court, out of which the process 
 issued, may transmit a certificate of the default in the manner 
 specified by the act, and the court, to which the certificate is 
 transmitted, m.ay punish the person for his default, as if he had 
 refused to apj)ear to process issuing out of that court; provided 
 it appear, that a reasonable and sufficient sum of money, to 
 defray the expenses of coming and attending to give evidence 
 and of returning, was tendered to the person making default, at 
 the time when the subpoena or other process was served upon him. 
 
 In civil proceedings, as we have seen, a witness is not obliged to Compensation, 
 attend or give evidence, unless his expenses are duly tendered; 
 but, in criminal {)rosecutions, witnesses are bound to appear un- 
 conditionally. (1) (6) On the other hand, it is reasonable and high- 
 ly expedient, that when tliey attend on behalf of the public, a fair 
 compensation should be given them for their trouble and necessa- 
 ly expense. Formerly, however, the law provided no means for Costa in felo- 
 reimbursing them; a defect in our judicial administration which "'^®- 
 was at length remedied by stat. 27 G. 2, c 3, s. 3. This statute 27 G. 2, c. 3. 
 enacts, that " when any poor person shall appear on recognizance 
 to give evidence against another accused of grand or petit larceny 
 or other felony, the court may, on the oath of such person, and on 
 consideration of his circumstances, in open court, order the treasur- 
 er of the county or place in which the offence shall have been com- 
 
 (l) 4 Hawk. b. 2, c. 46, s. 173. 2 bles of slat. 27 G. 2, c. 3, g. 3, and 
 Hale P. C. 282. See also Pream- stat. IS G. 3, c. 19, s. 7. 
 
 (a) See Note 37, p. 30. (6) See Note 38, p. 30. 
 
 Vol. I. 2
 
 10 Of the Attendance of Witnesses. [Ch-. 1. 
 
 mitted, to pay such sum of money as to the court shall seem rea- 
 sonable, for his lime, trouble, and expense." 
 
 As tliis statute extended only to poor persons who appeared on 
 recognisance, and not to such as appeared on sub|)oenn to give evi- 
 dence, it was afterwards deemed reasonable by the legislature, that 
 every person so appearing on recognizance or subpoena, should be 
 allowed his reasonable expenses; and also, in case of poverty, a 
 8 G. 3, c. 19. satisfaction for his trouble and loss of time, 'i ho stat. G 3, c. 
 19, s. 8, therefore enacted, that " where any jiersoii shall appear 
 on recognizance or subpoena, to give evidence as to any grand or 
 petit larceny or other felony, whether any bill or indictment be 
 preferred or not to the grand jury, it shall be in the power of the 
 court (provided the person shall, in the oj)inion of the court, have 
 bona fide attended in obedience to such recognizance or subpcBna) 
 to order the treasurer of the county or division, in which the offence 
 shall have been committed, to pay him such sum as to the court 
 shall seen) reasonable, not exceeding the expenses which it shall 
 pppear to the court the said person was bona fide put unto by rea- 
 son of the said recognizance and subpoena, making a reasonable 
 allowance, in case he shall appear to be in poor circumstances^ 
 for trouble and loss of time." 
 
 58 G. 3,c. 70, The Stat. 58 G. 3, c. 70, s. 4, provides, that, in case of felony, 
 the court, before whom a person shall be prosecuted or tried, shall 
 be empowered (at the request of any person bound to prosecute, 
 or subpoenaed to give evidence, and who shall appear to prosecute 
 or give evidence, or who shall appear to the court to have been 
 active in the apprehension of a person accused of some one of the 
 offences mentioned in several recited acts) to order the sheriff or 
 treasurer of the county to pay to the prosecutor and witnesses, and 
 to the person concerned in such apprehension, as well the costs, 
 charges, and expenses, which the prosecutor shall be put to in 
 preferring the indictment, as also such sum of money as to the court 
 shall seem reasonable and sufficient to reimburse them for iheir 
 expenses in attending before the grand jury to prefer the indict- 
 ment, and in carrying on the prosecution, and also to compensate 
 them for the loss o^ time and trouble in the apprehension and
 
 Cli. 1.] Of the Attendance of Witnesses. 11 
 
 proseculion.(*) 'i'lie 8th section further provides, that no person 
 shall be entitleci to any such costs or expenses for nttending the 
 court, unless he shall have been bound by recognizance, or have 
 previously received a subpoena to attend, or a written notice for 
 (hat purpose from the prosecutor, his agent, or his attorney. 
 
 The latest statute on this subject is tliat of 7 G. 4, c. 64, s. 22, 7 G. 4, c 64. 
 which enacts, that the court before which any person shall be 
 prosecuted or tried for any felony, is hereby authorized and enfi- 
 powered, at the request of the prosecutor, or of any other person 
 who shall appear on recognizance or subpoena, to prosecute or 
 give evidence against any person accused of any felony, to order 
 payment (o the prosecutor of the costs and expenses, whicli such Costs of in- 
 prosecutor shall incur in preferring the indictment, and also pay- <liciment. 
 ment to the prosecutor and witnesses for the prosecution of such 
 sum of money as to the court shall seem reasonable and sufficient 
 to reimburse such prosecutor and witnesses for the expenses they of attendance, 
 shall have severally incurred in attending before the examining 
 magistrate or magisti-ates and the grand jury, and in otherwise 
 carrying on such prosecution, and also to compensate them for 
 their trouble and loss of time therein; and although no bill of 
 indictment be preferred, it shall still be lawful for the court, when 
 any person shall, in the opinion of the court, bona Jide have at- 
 tended the court in obedience to any such recognizance or sub- 
 pcEna, to order payment unto such person of such sum of money 
 as to the court shall seem reasonable and sufficient to reimburse 
 such person for^ihe expenses which he or she sliall have bona fide 
 incurred by reason of attending before the examining magistrate 
 or magistrates, and by reason of such recognizance or subpoena, 
 
 and also to compensate such person for trouble and loss of time; Before exam- 
 
 - I • • Jning magis- 
 
 and the amount of expenses of attending bplore the examinmg trate. 
 
 magistrate or magistrates, and the compensation for trouble and 
 loss of time therein, shall be ascertained by the certificate of 
 such magistrate or magistrates, granted before the trial or attend- 
 ance in court, if such magistrate or magistrates shall think fit to 
 grant the same ; and the amount o( all the other expenses and 
 
 (*J The opinion of the judges, on the construction of this section, is stated in The 
 Crown Circ. CoiDp. p- 10, 9th ed.
 
 12 Of (he Altendance of Witnesses. [Cli. 1. 
 
 compensation sliall be asccrtnined by the proper oflicer of the 
 court. 
 
 Case in mis- Tlic act last mentioned gives authority also to the court, in cer- 
 tain cases of misdemeanor, to order the payment of the costs and 
 expenses of prosecutions, 'ibis statute provides, that where any 
 prosecutor or other person shall appear before any court on re- 
 cognizance or subpoena, to prosecute or give evidence against any 
 person indicted of any assault with intent to commit felony, of any 
 attempt to commit felony, of any riot, of any misdemeanor for 
 receiving any stolen properly, knowing the same to have been 
 stolen; of any assault u])on a peace officer in the execution of his 
 duty, or upon any person acting in aid of such officer, of any neg- 
 lect or breach of duty as a peace officer, or any assault committed 
 in pursuance of any conspiracy to raise the rate of wages, of know- 
 ingly and designedly obtaining any property by false pretences, of 
 wilful and indecent exposure of the person, of wilful and corrupt 
 perjury, or of subornation of perjiu'y; every such court is hereby 
 authorized and empowered to order payment of the costs and ex- 
 penses of the prosecutor and witnesses for the prosecution, to- 
 gether with a compensation for their trouble and loss of time, 
 in the same manner as courts are hereinbefore authorized and 
 empowered to order the same in cases of felony; and, although 
 no bill of indictment be preferred, it shall be lawful for the court, 
 where any person shall have bona fide attended the court, in obe- 
 dience to any such recognizance, to order payment of the ex- 
 petiscs of such person, together with a compensation for his or 
 her trouble and loss of time, in the same manner as in cases of 
 felony: provided, that in cases of misdemeanor, the power of or- 
 dering tlie payment of expenses and compensation shall not ex- 
 tend to the attendance before the examining magistrate (o). 
 
 Tender. It has been doubtGd(l), whether a witness may not lawfully 
 
 refuse to obey a subpoena on a criminal prosecution, as well as in 
 a civil suit, unless he has a tender of bis reasonable expenses; (b) 
 and the doubt is suggested in consequence of a provision in the stat. 
 45 G. 3, c. 92, which (after enacting, ;bat service of subpoena on a 
 
 (1) See Chitty'8 Treatise on Criminal Law, yo\. i 612. 
 (a) FeeNote 39, p. 80, {b) See Note 40, p. 30.
 
 Cli. 1.] Of the Attendance of Witna^ses. 15 
 
 witness in any one of the parts of the United Kingdom, for liis ap- 
 pearance on a criminal prosecution in any otiier of the parts of the 
 same, shall be as effectual as if it had been in iluit p^n't where he 
 is required to appear) provides, that he shall not he punishable 
 for default, unless a sufficient sum of money has been tendered to 
 him, on the service of the subpoena, for defraying his expenses of 
 coming, attending, and I'eturning. One ol)ject, w'nich the legis- 
 lature had in vievv, was to provide for the ap|)enrance of witnesses 
 in any of the parts o( the United Kingdom, and they are therefore 
 subject to ptmishinent for non-attendance. On the other hand, 
 as ihe expenses of going from one of the parts of the United 
 Kingdom to either of the other parts would necessarily be great, 
 they were allowed to insist on the payment of their reasonable 
 charges, previous to the journey; a provision more especially ne- 
 cessary at the time of passing this statute, when, in some parts of 
 the kingdom, witnesses were not entitled to any compensation for 
 attending to give evidence in criminal cases. (1) But as there is 
 no statute respecting a tender of expenses in the case of a crimi- 
 nal prosecution, except that mentioned above, (which is confin- 
 ed to the case where the process is served in one of the parts of the 
 United Kingdom for the appearance of the witness in another of 
 the parts,) and as the tender of expenses in civd suits is under the 
 special provision of an act of parliament, the general rule in ordi- 
 nary cases (whell>er of felony or misdemeanor) appears to be, that 
 witnesses, making default on the trial of criminal prosecutions, 
 are not exempted from attachment, on the ground that their ex- 
 penses were not tendered at the time of the service of the subpoe- 
 na; although the court would have good reason to excuse them 
 for not obeying the summons, if, in fact, they had not the meana 
 of defraying the necessary expenses of the journey. (2). 
 
 Cotnmissioners of bankrupt may summon any persons whom Commissioners 
 they believe capable of giving information concerning the trade, " <»""■"?• 
 dealings, or estate of the bankrupt, &c. and if the witness does 
 not come at the lime appointed, they may order hitn to be appre- 
 hended(3). Every witness summoned to attend before commis- 
 
 (I) In Ireland, tha expenses of wit- (2) See ante, p 9. (1.) 
 nesses in case of felony were first allow- (3) 6 G. 4. c. 16. a. 33. 
 ed by «t. 65 G. 3. c. 91.
 
 ii 
 
 Of the Attendance of Witnesses. [Cli. I. 
 
 sioners shall have his necessary expenses temiered to him, in the 
 same manner as is required on service of subpcena to witnesses in 
 actions at la\v.(l) 
 
 Justices. 
 
 jNIagistratcs have not, in general any authority to compel the 
 attendance of witnesses for the purpose of a summary trial, except 
 under the special provision of acts of parliament. When a statute 
 requires justices of peace to take the examination of persons 
 bringing a prisoner before them on suspicion of felony, it inciden- 
 tally gives them a power to examine upon oath, and to summon 
 by their warrant any other persons who appear to be material wit- 
 nesses for the prosecution, to come before them and give evidence. 
 And it may be laid down as a general rule, that whei-ever n)agis- 
 trates are authorized by act of parliament to hear and determine, 
 or to examine witnesses, they have incidentally a power to take 
 the examination on oath. (2) (n) 
 
 Conrts martial. Witnesses, who neglect to attend on courts martial, after being 
 duly summoned, are liable to be attached in the court of King's 
 Bench, &c. as if they had neglected to attend atrial in some crim- 
 
 Commissioners Inal proceeding in that court. (3) And commissioners of inclosure, 
 under the general inclosure act, stat. 41 G. 3, c. 109, s. 33, 34, 
 have a power to summon in writing any person within a certain 
 di.stance, to appear before them and to be examined; and if the 
 person summoned refuse tn appear, he will be subject to a pen- 
 alty. 
 
 Witnesi When a material witness resides abroad, or is going abroad, 
 
 abroad. , i i • i i ..... 
 
 and cannot attend at the trial, the party requirmg his testunony 
 
 may move the coiu't in term time, or may apply to a judge in va- 
 cation, for a rule or order to have him examined on interrogato- 
 ries de bent esse before one of the judges of the court, if the witness 
 reside in town, or, if he reside in the country or abroad, before corn- 
 Order for ex- niissioners specially appointed and approved by both parties. (4) (6) 
 The rule or order for such examination cannot be obtained 
 
 (1) 6 4. c. 16. s. 35. purpose of levying penalties or making 
 
 (2) Dalt. Just. c. 6. Lamb. 517. distresses. 
 
 12 Rep. 131. And Bee stat. 15 G. 3. (3) Stat. 55 G. 3. c. 108. s. 28. 
 c. 39, which gives such power, for the (4) 2 Tidd. Pr. 860. 
 
 (fl) See Note 41, p. 31. (A) See Note 42, p. 32.
 
 Ch, 1.] Of the Attendance of Witnesses. 15 
 
 without the consent of both parties, as the depositions are only 
 secondary evidence. Without this consent, therefore, the court 
 will not give the plaintiff leave to examine upon interrogatories 
 an attesting witness to a deed, or to give the examinaiion in 
 evidence at the trial, on the ground that tiie witness is incapa- 
 cilated by illness from atlending, anrl niilikely ever to be able to 
 attend, though it appear by affidavit that the defendant had at 
 one lime admitted the execution of the deed; nor will the court, 
 on this ground, grant a ruh; for dispensing with the attendance 
 of the wiiness.(l) And though the cnm-t will not compel tho 
 oih?r party to consent, yet, if necessary, it will assist the |)arly 
 applying by putting ofF the trial (that there may be an opportuni- 
 ty of filing a bill in e(]uity,) until the consent is obtained, or the 
 witness retin'ns; an(f if, after all, tho defendant should refuse, 
 the court will not give him judgment as in case of nonsuit. (2) 
 
 When a partv, after obtainine: leave by consent examines wit- ?^^ . ®''" 
 
 ' ^ ' . . "^ . . aimnaljon. 
 
 nesses abroad on depositions, he will not be entitled to any al- 
 lowance, in the taxation of costs, for the expense of taking the 
 depositions, although he may succeed in the action. (3) The 
 same rule prevails in the court of chancery; if a parly applies 
 to that court for a commission to examine witnesses, he must pay 
 the expenses. 
 
 Where a cause of action has arisen in India, or any offence has Witnesses in 
 been committed there, which is tried in this country, the evidence 
 (il witnesses resident in India may be obtained in the manner 
 prescribed by stat. 13 G. 3, c. G3, s. 40, 44. (4) The evidence of 
 witnesses in India may also be obtained, in support of a bill for 
 a divorce in parliament, by the provisions of stat. 1 G. 4, c 101; 
 and in the case of a prosecution for an offence committed a- 
 broad by any person employed in the public service, the evidence 
 of witnesses resident abroad may be obtained in the mode point- 
 ed out by stat. 42 G. 3, c. 85.(5) The stat. 54 G. 3, c. 15, which 
 was passed for the purpose of facilitating the recovery of debts 
 
 (1) Jones V. Brewer, 4 Taunt. 47. (3) Stephens v. Crichton, 2 East, 
 
 (2) Furly v. Newnham, 2 Doug. 259. Taylor v. Roy. Ex. Ass. Comp. 
 419. Mostyn v. Fabrigas, Covvp. 174. 8 East, 39.S. 
 
 Calliard v. Vaughan, 1 Bos. & Pull. (4) Grillard v. Hogue, 1 Brod. & 
 
 211. As to to the admissibility of depo- Bing. 519. 
 
 eitions on interrogatories, see infra, part (5) R. v. Jones, 8 East, 31. 
 
 2, c. 4, 8. 2.
 
 ]G Of the Attendance of Witnesses, [Ch. I. 
 
 in the courts of law in New South Wales, piesciihes the mode of 
 obtaining tiie affidavits of witnesses, resident in this country, and 
 makes them equivalent to viva voce proof in open court, or to ex- 
 aminations under conunissions. 
 Material wit If the defendant is unable to proceed to trial, on account of 
 
 lU'ss nbseiU. ... , , ^ . 
 
 the abstiuce ol a niatenal witness, he may move the court m 
 
 term-liaio, or apply to llio in(!'2;e in vacation, on an affidavit of the 
 
 facts to put off the trial till the next term; or in the Common 
 
 Motion to put Plaa?, if necessarv, to a more distant period.(l) An application 
 
 off trial. n' • I "i II • • • • r 
 
 to put orr a trial beyond the existing sittings, or h-oin sittings 
 to sittings, is not allowed on the pari of the plaintiff; for he has 
 the power at any time of withdrawing the record; if he is not 
 prepared to try the cause. But where, from the sudden indis- 
 position of a witness, who may be able to attend in the course 
 of a day or two, or for any other temporary reason, the plain- 
 tiff is prevented from trying his cause in its order in the paper, 
 yet has ground to believe that he shall be able to try before the 
 sittings are over, it would be too much to make him, in such a 
 case, withdraw his record; and a judge at nisi juriKS will there- 
 fore make an order for the trial to stand over, till the witness is 
 By plaintiff, ijkely to attend. (2) It is a rule in the court of Common Pleas, 
 that the trial of a cause can never be put off on the consent of 
 the parlies and counsel, at the sittings at nisi prius^ but tho 
 plaintiff must either proceed to try or withdraw his record. (3) 
 
 Before the court will consent to put off the trial on account 
 of the absence of a material witness, it requires to be satisfied 
 that injustice would be done by refusing the application, and 
 that the parly, who makes the ap|}lication, has not conducted 
 himself unfairly, nor been ihe cause of any improper delay. (4) 
 By defendant, 'j'jjg ^ule will not be granted to the defendant, after he has 
 pleaded a sham plea, by which a trial has been lost, (unless he 
 consent to pay the money into court;) (5) nor, where the testimony 
 of the absent witness is intended to set up an odious defence, 
 (as, that the i)laintiff is slave to the defendant, and therefore 
 
 (1) Pr. Reg. 398. Tidd Pr. 831. (3) 2 Taunt. 221. 
 
 See form of affidavit in Tidd. App. (4) Saunders v. Pitman, 1 Bo». & 
 
 812. Pull. 33. 
 
 (2) Ansley v. Birch, 3 Campb. N. P. (5) Tidd. Pr. 831. 
 C. 833, by Lord Ellenborough.
 
 Cli. 2.] Of Incompetenaj of Witnesses, ^c. 17 
 
 cannot recover in ihe action, or that he is an ahen enemy, &c. 
 (1); nor will it grant the rule for the pur[)Ose of giving the de- - 
 
 fendant an op])ortiinity, which he has once lost hy his own neg- 
 lect, of applying to a court of equity for a coiinnission. (2) 
 
 When a motion is ahout to be made to a judge at nisi prius, Affidavit, 
 for putting off the trial of a cause on account of the absence of 
 a witness, notice should first be given to the })laintiff's attorney, 
 with a copy of the intended affidavit. This affidavit ought regu- 
 larly to be made by the defendant himself; but if he is abroad 
 or out of the way, it may be made by his attorney or a third 
 person. (3) The affidavit generally states, that the jierson absent 
 is a material witness, without whose testimony the defendant 
 cannot safely proceed to trial; that he has endeavored without 
 "sffect to get him subpoenaed; but th;it he is in hopes of [)rocuring 
 his future attendance. (4) (a) 
 
 CHAP. II. 
 
 Of the Incompetency of Witnesses from Want of Under- 
 standing, 
 
 When a witness appears, he must be regularly sworn, un- Exceptions 
 I .... , , . / » \ 1 I to witness, 
 
 less an objection is made to Ins conjpetency; [b) and the course 
 
 of proceeding is, that the j^arty, who objects to the witness, 
 should state all his objections at the same time, in order to pre- 
 vent unnecessary delay. (5) An exception to the credibility of 
 a witness cannot exclude him from being sworn. The excep- 
 tion of kindred, for examjjle, ahhough it is a good cause of 
 challenge against a jm'or, is not an objection to the competency 
 of a witness; a father is a comjietent witness for or against his 
 son, and a master for his servant, or a servant for his master. 
 Such exce[)tions may affect the credibility, but they do not affect 
 the competency of witnesses. 
 
 (1) Robinson V.Smyth, 1 Bos. & Pul. (4) See form of affidavit, Tidd, Pr. 
 454. Appx. 312. 
 
 (2) Cailiard v. Vaughan, 1 Bos. & (5) Lord Lovat's case, 9 St. Tr. 652., 
 Pull. 212. fol. ed. 18 Howell's St. Tr 609 S. O. 
 
 (3) Peake, N. P. C. 97. 
 
 (a) Seo Note 43, p. 41. (6) See Note 44, p. 58. 
 
 Vol. I. 3
 
 18 Of In CO mpeten cij of Witn tsscs [ C h . 2. 
 
 As it is the province of the jury to consider what degree of 
 credit ought to be given to evidence, so it is for the court alone 
 to determine, whether a witness is competent, or the evidence 
 admissible. Whether there is any evidence, is a question for 
 the judge: whether it \s sufficient, is a question for the jury. (l)(d) 
 And whatever antecedent facts are necessary to be ascertained, 
 for the purpose of deciding the question of competency or admis- 
 sibility of evidence, as, for example, whether a child understands 
 the nature of an oath — or whether the confession of a prisoner 
 was voluntary — or whether declarations, offered in evidence as 
 dying declarations, were made under the immediate apprehension 
 of death — these, and other facts of the same kind, are to be de- 
 termined by the court, and not by tiie jury. 
 
 Canteiofin- By the law of England the objections to the competency of 
 competency, yyjjnesses are fourfold. The first ground of incompetency is 
 want of reason or understanding: a second gioimd is defect of 
 religious principle; a third ground arises from conviction of cer- 
 tain crimes, or from infamy of character: the fourth and most 
 general cause of incompetency is interest. Eillier of these ground* 
 of incompetency will exclude the witness from giving any kind of 
 evidence. " I find no rule less comprehensive than this," said Mr. 
 Justice Lawrence, in the case of Jordaine v. Lashbrooke(2), " that 
 all persons are admissible witnesses, who have the use of their rea- 
 son, and such religious belief as to feel the obligation of an oath, 
 who have not been convicted of any infamous crime,, and who are 
 not influenced by interest." («) 
 
 An inquiry into these several causes of incompetency forms tl).e 
 subject of the four following chapters. 
 
 First, as to incompetency far want of understanding. 
 
 Idiott &c. Persons, who have not the use of reason^ labor under a phy- 
 sical disqualification, and from their infirmity are utterly iQcaj)able 
 of giving evidence. Insane persons, idiots, and lunatics under the 
 influence of their malady, are in this situation. (3)(/) 
 
 (1) By Duller J. Comp. of Carpenters, (2) 7 T. R. 610. 
 &c. V. Haywood, Doug. 775. Hull. N. (3) Co. Lit. 6 b. ff Com. Dig. tit. 
 P. 293. Teatmoigne, A. 1. 
 
 (d) Sm Note 46, p, 68. («) See Note 46, p. 58. (/) See Note 47, p. 6©.
 
 Ch. 2.] from fVant of Understanding. 19 
 
 But lunatics^ and other persons though subject to temporary 
 fits of insanity, may yet be witnesses in their iucid intervals, if 
 <hey have sufficiently recovered their understandings. (1) (g-) 
 And a person born deaf and dunnb is not on that account incompe- 
 tent, but, if lie has sufficient understanding, imy give evidence by 
 signs with the assistance of an interpreter. {2){h) 
 
 A witness must not only have a competent share of reason, Children, 
 but also know the nature of an oath. Children, therefore, who 
 are not able to understand its moral obligation, cannot be ex- 
 amined. (3) There seems to be no precise age fixed, at which 
 infants are excluded from being witnesses. At one time, indeed, 
 their age was considered as the criterion of their competency; 
 and it was a general rule, that ^lone could be admitted under the 
 age of nine years, very few under ten (4); which was in some 
 measure donying them the protection of law against secret acts 
 of violence. (5) A more reasonable rule has been since adopted: 
 and the admissibility of children is now regiiiated, not by their age» 
 but by their apparent sense and understanding, (i) In Brazier's 
 case, on an indictment for assaulting an infant of five years of 
 age with intent to ravish her, it was agreed by all the judges, 
 that children of any age migbt be examined on oath, if capable 
 of distinguishing between good and evil: but that they cannot 
 be examined, in any case, without oath (6)(J) This is now the 
 established rule in all cases, criminal as well as civil, and whether 
 the prisoner is tried for a capital offence, or for one of an Inferior 
 nature. When the child has appeared not sufficiently to under- 
 stand the nature and obligation of an oath, judges have often 
 thought it necessary, for the purpose of justice, to put off the 
 trial of the prisoner, directing that the child in the mean time 
 should be properly instructed. If ihe jury is sworn, and the pri- 
 soner is put upon his trial before the incompetency of the witness 
 is discovered, the proper course is not to discharge the jury, but to 
 direct an acquittal. (7)(A:). 
 
 (1) Com. Dig. lit. Testtnoigne, A. 1. (5) null. N. P. 293. 
 
 (2) Ruston's case, 1 Iviaeli, Cr. C. (6) Brazier's case, 1779. I Euut. 
 455. P. C. 443, 444. Bull. N P. 293, 
 
 (3) Com. Dig. tit. Tostmoigne, A. 1. 1 Leach, Cr. C. 237. 4 Black. Com. 
 Bull. N. P. 293. Giib. Ev. 130. 214. 
 
 (4) R. V. Travers, 2 Slra. 700, and (7) Pv. v. AVado, I Ry. Mo. Cr. C. 
 cases in East. P. C. 442, S. P. 1 Hal. 86. 
 
 P. C. 302. 2 Hal. P. C. 278. 
 
 ig) See Note 48, p. 60. (A) See IS'ote 49, p. 61. (i) See Note 50, p. 61. 
 (j) See Note 51, p. 61. (fc) See Note 32, p. 61.
 
 20 
 
 Of In compt tt n cy of Wit n esses 
 
 [Ch. 
 
 o. 
 
 Statment by 
 children. 
 
 Confirmatory 
 
 evidence. 
 
 If a child is too young to be sworn, it follows as a necessary 
 consequence, that [ any account,' wliicli it may iiave given to 
 others, ought not to he admitted. On an indictment, therefore, 
 for a rape on a child five years old, where the child was not 
 examined, biit an account of what she had told her mother, 
 about three weeks afior the transaction, was given in evidence 
 by the mother, and the jury convicted the prisoner, principally, 
 as was supposed, on that evidence: the judges, on a case re- 
 served for their opinion, thought the evidence clearly inadmissible, 
 and the prisoner was accordingly pardoned. (1)* 
 
 " Where the evidence of children is admitted," says Sir William 
 Blackstone (2), " it is much to be wished, in order to render their 
 evidence credible, that there should be some concurrent testi- 
 mony of lime, place, and ciicumstances, in order to make (;ut 
 the fact; and that the conviction should not be grounded singly 
 on the unsupported accusation of an infant under years of dis- 
 cretion." It seems, however, impossible to lay down any general 
 rule on this subject, applicable to all cases. A prisoner may be 
 legally convicted on such evidence, alone, and unsupported; and 
 whether the account of the witness requires to be corroborated 
 in any part, or to what extent, is a question exclusively for the 
 jury, to be deternsined by them on a review of all the circum- 
 stances of the case, and especially of the manner in which the 
 child has given his evidence. The evidence may be so. circum- 
 stantial, so plain and clear, and so free from all mixture of par- 
 tiality and ill will, as to leave no reasonable doubt of the prisoner's 
 guilt, although it stands unsupported by other witnesses. 
 
 CHAP. III. 
 
 Of Incompetency froin Defect oj Religious Principle. 
 
 The second ground of incompetency, which has been mention' 
 ed, is defect of religious principle. 
 
 (1) R. V. Tucker, ISOS. MS. See p. 19. 1 Alk. 29. 
 also R. V. Brazier, 1 East, P. C. 443, (2) 4 Com. 214. 
 
 * By tlie law of Scotland, children cannot be examined on oath under the age of 
 twelve: but their declarations, it seems, may be taken without oath, and left to the 
 consideration of lhi2 jury. See Burnett on the Crim. Law of Scotland, p. 391., and 
 Hume's Comment, on the Law of Scotland, vol. ii. 33 /.
 
 Ch. S.] from Defect of Rel'iriou.s Princijjle. 21 
 
 All witnesses, before lliey are examined in our coiirls of jus- Onth. 
 tice, are required to lake an oath, hy whicli ihey appeal to the 
 Supreme Being for ilie truth of ihe evidence uhicli they are about 
 to give. This necessarily implies a belief, thai by the laws of 
 God truth is enjoined, and falsehood punished. It is not suffi- 
 cient, that a witness believes himself bound lo speak the truth 
 from a regard to character or to the common interest of society, 
 or from fear of punishment. (1) Sucli motives have indred their 
 influence, and may come in aid of the relii;;ious oliligation, luil 
 they are of a nature so cai)rieiou3 and infirm, and so liable to be 
 perverted, as to afford little or no security for the observance of 
 truth. Our law, therefore, like that of most other civilized coun- 
 tries, requires a witness to believe that there is a God and a 
 future state of reward and punishment, and that by Inking the 
 oath he imprecates the Divine vengeance upon himseli, if his 
 evidence shall be false. (2)* 
 
 Atheists, and such infidels as profess not any religion, that can Atheists, 
 bind their consciences to speak the truth, are excluded frotn ^''^'^'^'s. 
 being witnesses. (-3) Lord Coke, indeed,' says generally, that an 
 infidel cannot be a witness (4), in which denomination he intend- 
 ed to comprise Jews as well as Heathens (5): and INIr. Seijeant 
 Hawkins thought it a sufficient objection to the competency of a • 
 witness, that he believed neither the Old nor the New Testa- 
 ment. (6) Lord Hale, however, was of a different opinion, and 
 strongly points out tiie unreasonableness of excluding indiscri- 
 minately all Heathens from giving evidence, as well as the incon- 
 sistency of compelling them to swear in a form, which they may 
 possibly not consider binding. " It were a very hard case," he 
 
 (1) Ruston's case, 1 Leech, Cr. C- 43. Gilb Ev. 129. 
 455. (4) Co. Lit. 6. b. 
 
 (2) White's case, 1 Leach, Cr. C. (5) 2 Inst. 50(3. 3 Inst. 165. 1 Atk. 
 482. lAtU. 19, 48. 43. Wiiies Rep. 541. 
 
 (3) Bull. N. P. 292. I Atk. 40, 45, (6) Hawk. P. C. b. 2, c 46, s. 148. 
 
 * Peers of parliament, when examined as witnesses, take the judicial oath in the 
 common form, as other persons. See a note, on this subject, iu 2 Howell's St. 
 Tr. 772. 
 
 The practice formerly was, not lo examine, upon oath, witnesses called on the 
 part of a prisoner, in trial for treason or felony. This practice was altered in case 
 of treason, by st. 7, W. S. c- 3,; and in cases of felony, by st. 1 Ann. st. 3. c. 9.
 
 -2 Of Incomptlency of Witnesses [Ch. 3. 
 
 says, " if a murder, committed here in presence only of a Turk or 
 a Jew, should be dispunishable, because such an oath should not 
 be taken, which llie witness holds binding, and cannot swear 
 otherwise, and possibly niighl think himself under no obli- 
 gation, if sworn according to the usual style of the courts of 
 England." (1) All doubts upon the subject are now removed. 
 In the celebrated case of Omichund and Barker, (which came 
 before Lord Chancellor Hardwicke, assisted by Lee C. J., Willes 
 C. J., and Parker C. B.) it was solemnly decided, that the de- 
 positions of witnesses professing the Gentoo religion who had 
 been sworn according to the ceremonies of their religion under 
 a comnnssion out of Chancery, ought to be adn)itted in evidence. (2) 
 And it may now be considered as an established rule, that in- 
 fidels of any other country, who believe in a God, the avenger 
 of falsehood, ought to be received here as witnesses; but infi- 
 dels, who believe not that there is a God, or a future state of re- 
 wards and punishments, cannot be admitted in any case. (3)(/) 
 
 Tatm of With regard to the ceremony or form of administering an 
 
 fiweariug. i i r • i • i i i i • i i i 
 
 oath, tijat lorm is obviously the best which most clearly conveys 
 the meaning of the oath, and most forcibly impresses its obli- 
 gation. (4) And since this is not an essential part of the oath, 
 , but entirely of human institution, and has varied in different 
 
 times and countries, though the substance of the oath must be 
 the same in all, it is obviously necessary to allow men to swear 
 according to the peculiar ceremony of their religion, that is, in 
 the manner which they consider binding on their conscience. 
 " Possibly," says Lord Hale, " they may not think tiiemselves 
 under any obligation, if sworn according to the usual style in 
 the courts of England." (5) Jews have therefore been sworn in 
 our courts, from the earliest time, on the Pentateuch (6); and 
 no distinction appears ever to have been taken between their 
 swearing in a civil or in a criminal case. In an old case, where 
 
 (1) 2 Hale, P. C. 229. (4) For the description of the judi- 
 
 (2) Omichund and Barker, 1 Atk. cial oath, by our old writers, Fleta, 
 21. I Wils. S4, S. C. Willes, 538, Kr.icton, BriUon: see 1 Atk. 22. 
 
 S. C. (5) 2 H. P. C. 279. 1 Atk 42. 48- 
 
 (3) Willes, 549. 1 Atk. 45. Fa- (6) I Atk- 40, 42- Willes, 648. 
 china v. Sabine, Str. 1104. Morgan** C'owp. 389. 
 
 case, 1 Leach, Cr. C. 64. 
 
 (/) See Note 58, p. 62.
 
 Cl\ 3.] from Defect of Religious principle. 23 
 
 a witness refused to be sworn in the usual form, by laying liis 
 right hand on the book and kissing it afterwards, Giin C J. ruled, 
 that he might be sworn, by having the book laid open before 
 him and holding up his right hand. (1) ^' In uiy opinion," said 
 the Chief Justice, "he has taken as strong an oath as any other 
 witness." On the trial of some of the rebels at Carlisle in the 
 year 1745, a witness being sworn in the same manner, by holding 
 up his hand, the point was referred to the judges for their opinion, 
 and they all agreed in thinking the witness legally sworn. (2) 
 There is at this day a sect in Scotland, who hold it to be idolatry 
 *to kiss the book; but their own form of swearing is much more 
 solemn. (3) Common sense requires, that witnesses should be al- 
 lowed to swear in that particular form which they consider binding 
 on their conscience. A Quaker affirms the truth of what he slates. 
 A Jew swears on the Pentateuch, with his head covered. A Gen- 
 too touches with his hand the fool of a Braimin. Mahometans 
 are sworn on the Koran (4): and upon the same principle, all per- 
 sons ought to be sworn according to the ceremonies of their pecu- 
 liar religion. (5) Whatever be the form, the meaning of the oath is 
 the same. It is an appeal to Heaven, calling upon God to witness 
 what we say, and invoking his vengeance, if what we say be 
 false, (m) 
 
 The most correct and proper time for asking a witness, Examination 
 
 whether the form of administering the oath is such as will be P""^^'"."* '® 
 
 . ... swearing. 
 
 binding upon his conscience, is previous to the administration 
 
 t-f the oath. But as it may occasionally happen, that the oath 
 is administered in the usual form, before the attention of the 
 court or of tiie counsel is directed to it, that question may pro- 
 perly be afterwards asked. And if, in answer to such question, 
 the witness shall declare in the affirmative, namely, that he con- 
 siders the oath, taken by him, to be binding upon bis conscience, 
 it would be irrelevant to ask further, whether there be any other 
 mode of swearing that would be more binding than that which 
 
 (1) Dutton V. Colt, 2 Sideaf. 6. (4) Morgan's case, 1 Leach, Cr. C. 
 
 (2) By Gold J. in Mildrone's case, 1 64., by Gold J. delivering the opinion of 
 Leach, Cr. C. A^.9. Mee v Reed, Peak all the judges. Cowp- 390. Fachina v. 
 N. P. C. 22, S,P. Sabine, 2 Str. 1104. 
 
 (S) Lord Mansfield, Cowp. 390. (5) Omichnnd and Barker, 1 Atk. 21. 
 
 (m) See N<rte 84, p. 62.
 
 ^i- Of Incompetency of Witnesses [Ch. .'5. 
 
 Iins been iiM.-d. (I) If the u iii-css snys, lie considers the oath to be 
 bindint; upon his fonsciencc, he affirms, in effect, that in taking 
 that oath he has called his God to witness, what he shall say will 
 be the ti-ulh, and lli:;t he has imprecated the Divine vengence itp- 
 on his head, if what he sliall afterwards say is false; and when tiiis 
 is done, ii would be perfectly unnecessary and irrelevant to ask any 
 further questions. (2) k^uch an acceptance of the oath not only • 
 iniposes upon the witness all its religious obligations, but, should 
 he violate its sanctions, subjects him also to the temporal penalties 
 consequent on the crime of perjury . (3) 
 
 Exanunriiion The proper mode of examining a witness, for the purpose oftry- 
 
 as to o|Jinioiis. j^^^ j^j^ coin]ietency in religious principle, is not to question him as 
 to his particular opinions, but to enquire generally, whether he be- 
 lieves in the existence of God and of a future state. In a case be- 
 fore iVFr. Justice Buller, where a witness, wb.o had been swoin on 
 the Gospels, was asked, whether he believed in the Gospels on 
 which he had been sworn, the question was objected to, and is said 
 'to have been overruled by the court. (4) This question appears to 
 have been put after the swearing in chief, though before the exam- 
 ination of the witness. If it had been asked before the witness was 
 sworn at all, it seems that it would have been reguhir; for if he had 
 not believed in the Gospels, how could he have been efleclually 
 sworn upon them? The administration of an oath in such a case 
 would be entirely nugatory; and evidence wou'd be given with- 
 out any religious sanction, on the bare assertion of a witness. If 
 the law requires an oath to be administered in a certain form, and a 
 witness believes not in any form of religion, the consequence must 
 necessarily be, that he cannot be sworn. (5)(n) 
 
 (1) Resolution of the jtulges deli- sumed a false name, and swearing in 
 vered by llie Lord Chief .luslice in tlie the common form upon the Go-:pel9, 
 proceeding on the Bill of Pains and but diseovered after the trial to bo a 
 Penaltifirt, Aui?. 24, 1820. In the case Jew, is not .i uronnd for a new trial, 
 of the witness Gargiulo, p. IIG, of the Sells v. Iloare, .3 Brod. & Binj. 432. 
 printed evidence 2 Brod. & Bing. (4) R. v. Taylor, Peake, N. P. C 11. 
 284. (5) A tract has been written on thin 
 
 (2) By the Lord Chief Justice, on subject by Mr. Baron Smith, one of 
 the same occasion the Barons of the Court of Exchequer in 
 
 (3) The fact of a witness having aa- Ireland. 
 
 (n) See Note 55, p. 63. 
 
 
 \
 
 Ch. 3.] from Defect of Religions Principle. 25 
 
 There appears to be no good reason for not aclmitting the so- Quakers, 
 lemn affirmation of a Qiiakei' in all cases, as well as tlie oath of a 
 Jew or Gentoo, or any other [)erson, who thinks himself really 
 bound by the mode and form in which he attests. Before the 
 Revolution, Quakers, who refused to take a legal oath, were treat- 
 ed as obstinate offenders, and subject to penalties. (1) But these 
 hardships were removed by the toleration act (2), which first allow- 
 ed them to make a declaration of their fidelity to the state instead 
 of taking an oath of allegiance, and exem|)tcd them from all pains 
 and penalties on their making, if required, certain other declara- 
 tions there prescribed. And by another statute, which passed 
 about six years after(3), their solemn affirmation in courts of jus- 
 tice is admitted to have the same eflect as an oath taken in the 
 usual form, excepting only that on such affirmation they are not 
 pern)itted to give evidence in criminal cases. (o) 'Jhis exception 
 against the testimony of Quakers in criminal prosecutions, which 
 Lord Mansfield has called a strong prejudice in the minds of the 
 great men who introduced the statute(4), has been continued in 
 the several succeeding acts of the legislature on the subj'3ct.(5) 
 The soundness and propriety of such a distinction between crimi- 
 nal and civil cases may well be questioned; unless it can be shown 
 that evidence requires less sanction in civil cases than in criminal, 
 or that Quakers, in making their solemn affirmation, do not consid- 
 er themselves under a strict religious obligation to speak the truth. 
 The affirmation of a Quaker, as Lord Mansfield observed in his 
 excellent judgment in the case of Atcheson against Everett (6), is 
 in substance the same as an oath; the form oiily is diflerent; an 
 affirmation is a most solemn appeal and attestation to God. 
 
 The legislature, by not admitting the affirmation of Quakers 
 in criminal cases, must be understood to mean causes technically 
 criminal. (7) They may be received in penal actions ; as, in 
 an action for debt on the statute against biibery in elections 
 (8); so, on a motion for an attachment for non-perform- 
 
 (1) St. 13 C. 2, c. 1. (6) Cowp 382. 
 
 (2) St. 1 W. & M. c. 18, s. 13. (7) Cowp. 391. 
 
 (3) St. 7 & 8 W. 3, c. 34. (8J Atcheson v. Everett, Cowp, 
 
 (4) Cowp. 390. 382. 
 (6) St. 8 G. 1, c 6. St. 22 G. 2, c, 
 
 46, B. 36. 
 
 (0) See IS'ote 56, p. 63. 
 
 Vol. L 4
 
 26 Of Incompetency of Witnesses, ^c. [Cli. o. 
 
 ance of an a\vard(l). or on a motion lo quasli an appointment of 
 verseers(2); these proceedings being of a civil, not a criminal 
 nature. But in all cases which are substantially of a criminal na- 
 ture, the affirmation of a Quaker is inadmissible; as, in an appeal 
 for murder (3), though it is in form a civil proceeding; so on a mo- 
 tion for an information for a misdemeanor(4), or on exhibiting ar- 
 ticles of the peace (5), or on a motion for non-performance of an 
 order of Court(G). Where the application to the court is against 
 a Quaker, his affirmation may be received in his own defence, 
 though the proceeding be of a criminal nature. (7) 
 
 It has been observed by Lord Mansfield (8), that Quakers are 
 at present under some hardship, in not being able to call other Qua- 
 kers as witnesses in their defence, on a charge of treason or felony; 
 since, in these cases, witnesses on behalf of the prisoner are to be 
 sworn, before they can give evidence, like witnesses for the 
 crown (9); and no exception is made by the legislature, in order to 
 give a prisoner the benefit of a Quaker's testimony. ()?) 
 
 Excommuni- It has been frequently laid down, that persons excommuni'- 
 "*'°°' cated are not competent witnesses, because it is supposed, that 
 
 those who have been excluded from the church are not under 
 the influence of any religion. The authority generally referred 
 to m support of this rule, is a dictum of Sir Edward Coke» 
 in the case of the Attorney General v. Griffith (10), concerning 
 the oath of allegiance required of Popish recusants. He is 
 there reported to have said, " By the statute 3 .T. J, c. 5, every 
 recusant convict is to be exconmiunicated; and therefore on my 
 circuit I do not admit of I hem for witnesses between party and 
 party, they being not competent witnesses." On the authority 
 of this dictum, the rule has been comn)only adojUed by writers 
 
 (1) Taylor v. ScoU, cited Cowp. 291.; and see n. (A) ib., where the ca- 
 394. Powell V. Ward, cited Andr. scs on this subject are collected. 
 
 200. (7) R. V. Shackliiiglon, Andr. 201. it. 
 
 (2) R. V. Turner, 2 Str. 1219. R. v. Gardner, 2 Burr. 1117. Cowp 
 
 (3) Castile v. Bainbridge, 2 Str. SS3, 392. 
 
 856. Cowp. 392. (8) Cowp. 391. 
 
 (4) R. V. Wych, 2 Str. 872. R v. (9) St. 7 & 8 \V. & M. c 3. *. I. I 
 Gardner, 2 Burr. 1117. Ann. st. 2, c. 9, s. 3. 
 
 (5) R. V. Green, 1 Str. 527. (I0> 2 Bulslr. 155. 
 
 (6) Skipp V. Harwood, VVilles. 
 
 (p) See Note 57, p. 64.
 
 Ch. 4.] Of Incompetency from Infimij. * 27 
 
 on the subject of evidence; alihougli the reason, upon which it 
 
 is supposed to have been founded, would in the present day be 
 
 generally exploded. But now, by a lale act of the legislature, 
 
 this objection has been entirely removed. The stat. 53 G. 3.*|^-^''- 
 
 c. 127, s. 2, 3, enacts, that no sentence of excommunication shall 
 
 be pronounced by''ecclesiastical courts in cases of contempt or 
 
 disobedience to their order, and tiiat persons excommunicated shall 
 
 in no case incur any civil penalty or disability. 
 
 CHAP. IV. 
 
 i 
 
 Of Incompetency from hfimy. 
 
 A THIRD cause of incompetency is infamy of character, pro- 
 ceeding from conviction of certain offences. 
 
 The conviction of an infamous crime followed by judgment, 
 disqualifies a witness from giving evidence in courts of justice. 
 This is stricily a legal objection, to be supported by strict legal 
 proof; and nothing less than a conviction will disqualify. Here 
 again is another striking instance, to show the distinction be- 
 tween competency and credibility. Witnesses of the most infa- Competency 
 mous and depraved character, though not credible, may yet be Credibility, 
 competent; and it frequently happens, that a witness is suffered 
 to give evidence, because not absolutely disqualified by the rules 
 of law, though at the same time he may be far lower in point 
 of credit and real character, than another, who is at once ex- 
 cluded as incompetent. Writers on the subject of evidence, 
 therefore, distinguish between the infamia juris and the infamia 
 facti. Of these tests of infamy, the latter may destroy the cred- 
 ibility of a witness; but it is the former only that can destroy 
 iiis competency. 
 
 In treating of this subject, it is proposed to consider, in the 
 first section, what offences incapacitate, and how a witness may 
 be restored to his competency: in the second, to consider the 
 evidence of accomplices.
 
 2S Of Jncompelenrjj from Infdnnj. [Cli. 4. 
 
 Sect. I. 
 
 What Offences incapacitate; and of the Mode of restoring 
 Competency. 
 
 What crimes Therk are many offences, which our law considers such 
 disqualify. blemishes on th-; tnoral character, as to incapacitate from giving 
 evidence in courts of justice. (1) Of this kind are treason, and 
 every species of the crimen falsi^ such as forgery, perjury, subor- 
 nation of perjury, attaint of false verdict, (2) and other offences 
 of the same description, which involve the charge of falsehood, 
 and affect the public administration of justice. (3) 
 
 Felony. The whole class of offences which come under the denomination 
 
 of felony, (4) that is, all offences which occasion a forfeiture of 
 lands or goods, will have the same effect in rendering a witness 
 incompetent; though it is obvious, that crimes are not always 
 punished by the legislature in proportion to their guilt, and there 
 may be more depravity in some frauds, which are not punishable 
 as crimes, than in some kinds of felony. By the common law, a 
 
 Petit larceny, person convicted of petty larceny was not a competent witness, 
 because the offence was felony, no less than grand larceny; (5) 
 but by Stat. 31 G. 3, c. 35, it was enacted, that no person should 
 be incompetent by reason of a conviction for petty larceny. (6) 
 
 Bribing a Some Other offences also make a vvitness incompetent after 
 
 witness. . 
 
 conviction and judgment; as prEemunn-e, barretry,(7) or the 
 
 crime of bribing a witness to absent himself and not give evi- 
 ct) Gilb. Ev. 126. Bull. N. P. 291. (3) See the judgment of Sir W. 
 
 (2) Co. Lit C 1). Hawk. b. 2, c. 46, Scott in the case of Vilie de Varsovie 
 
 B. 101. Com. Dig. tit. Testmoigne, A. 5. and others, 2 Dodson's Adm. Rep. 174. 
 
 2 H. P. C. 277. Fortesc. Hep. 209. (4) Co. Lit. 6 b. Com. Dig. ubi. 
 
 Jones V. Mason, 2 Sir. 833. Walker v. sup. 
 
 Kearney, 2 Str. 1148. Our oirliest (5) 2 H. P. C. 277. Pendock v. 
 
 writers notice this cause of disquiilifi- Mackinder, Willes' Rep. 667; where 
 
 cation. The rule of the Roman law the authorities on this point are col- 
 was the same; "Publico judico darn- iected. 
 
 nali, et non in integrum restituti, ad- (6) See also 7 & 8 G. 4, c. 29, s. 2. 
 
 mittendi non suntad teslimonii fidern." (7) R. v. Ford, 2 Salk. 690. Bull. 
 
 Dig. lib. 22, tit. 5, do Tostibua, art. 3. N. P. 292. See Com. Dig. tit. Test 
 
 B 5. moigne, A. 5.
 
 Sect. 1.] Of Incompetency from I njujny. 2-^ 
 
 dence.(l) A witness is disqualified by aUaiiit of conspiracy at Conspiracy, 
 the suit of the king (2), that is, of a conspiracy to accuse another 
 person of a capital offence (3); for then he is to have the villanous 
 judgment, and lose tlie freedom of the law. ft is otherwise, says 
 Lord Hale, where he is attainted of a consi)iracy at the suit of the 
 party. (4) In a late case in the Admiraliy court, which under- 
 went much discussion. Sir W. Scolt delerniined, on great consid- 
 eration, that a conviction for a conspiracy to commit a fraud would Fraud, 
 not render an afiidavit of the convict inadmissible (5) ; and a con- 
 viction for keeping a public gaming house has been thought not 
 sufficient to render a witness incompetent. (6) It seems, that a 
 person, who has been convicted of winning by baud or ill practice 
 in certain games, would not be a competent witness, since thestat. 
 9 Ann. c. 11, s. 5, not only inflicts a penally, but also enacts, that 
 he shall be deemed infamous; and one of the legal consequences of 
 infamy is incompetency to give evidence in a court of justice. (7) 
 
 As convicts in such offences cannot be witnesses, they cannot 
 make affidavits to support a charge against others; but, to excuU 
 pate or defend themselves, their affidavits have been allowed (8)j 
 upon the same principle that the afJirmations of Quakers are admit- 
 ted in their defence on a criminal charge. 
 
 Outlawry, in a personal action is no ground of exception. (9) Outlawry, 
 But judgment of outlawry for treason or felony, appearing on re- 
 cord by the sheriff's return of the exigent, has the same effect as 
 judgment after a verdict or confession (10) ; it follows, therefoie, 
 that such an outlaw cannot be a competent witness. (11) 
 
 (1) Adjudged in Clancey's case, by C. 21. 
 
 seven judges; Holt C. J. doubling at (6) R. v. Grant, 1 Ry. Mo. N. P. C. 
 
 first. Fortesc. Rep. 20S. Busiiell v. 270., by AbboU C. J. 
 
 Barrett, 1 Ry. Mo. 434. (7) Co. Lit. 6, b. Fortesc. 208. 
 
 (2) Co. Lit. 6, b. 11 Rep. 99, a. (8) Davis nnd Carter's case, 2 Salk. 
 2 H. P. C. 277. Hawk. P. C. b. 1, c. 461. CharJesvvortii's case, cited by the 
 72, s. 9. Com. Dig. tit. Testinoigne Court in Walker v. Kearney, 2 Str. 
 A. 5. 114S. 
 
 (3) 2 H. P. C. 277. Hawk. ib. See (9) Co. Lit 6, b. Com. Dig. tit. 
 R. V. Croseley, 2 Leach, Cr. C. 49(i. Tcstm. A. 5- Hawk. P. C. b. 1, c. 72. 
 
 (4) 2 H. P. C. 277. Saville v. Ro- s. 107. 
 
 berts, Carth. 416. Hawk. ubi. sup. (10) 3 Inst. 212. Hawk. P. C. b. 2. 
 
 (5) In the case of Ville de Varsovie c. 48, s. 22. 
 
 and others, 2 Donson's Adm. R. 174. (11) Celier's case, Sir T. Raym. 
 Crowther r. Hopwood, 3 Stark. N. P. 569.
 
 '30 Of Incompetency from Infamy. [Ch. 4. 
 
 Infamous pun- SoMie kinds of punishment were formerly ihouelu to be marks of 
 inlamy, and tnerelore witnesses were Irequently rejected alter 
 branding, or after standing in the pillory; these being the usual 
 punishments for the crimen falsi, (l) But the distinction is obvious, 
 and now clearly settled, that it is not the punishment, but the na- 
 ture of the offence, which causes infamy. (2) The maxim is, ex- 
 delicto non ex supplicio emergit infarnia. Thus, it is no objection 
 against the competence of a witness, that he has been in the pillo- 
 ry for a libel on the government, or for a trespass, or a riot. (3) He 
 is not incompetent, unless he has suffered for the crimen falsi, as for 
 perjury, &c.; in which case it is the crime, not the punishment, 
 that incapacitates. And, on the other hand, after judgment for 
 the latter kind of offence, he is not competent, though the punish- 
 ment may have been only a fine. (4) (a) 
 
 ment. 
 
 Proof of judg- Infamy, arising from the sentence of a court of justice, must 
 be established by regular proof of a conviction and judgment 
 in the due course of law. The rule most commonly laid down 
 is, that a conviction makes the witness incompetent. But it is 
 not to be understood, that conviction alone incapacitates; for 
 the conviction may possibly have been quashed, on a motion in 
 arrest of judgment. (5) The judgment, therefore, as well as 
 the conviction, must be proved; and the genera! rule is, that 
 the judgment can only be proved by the record or by a copy of 
 the record. (6) Even an admission by the witness himself, of 
 his being in prison under judgment for grand larceny, (7) or 
 of his having been guilty of perjury on another occasion, (8) 
 
 (1) 2 H. P. C. 277. Co. Lit. 6, 6. or of subornation of perjury. 
 2 Dodson's Adrn. Rep. 187. (4) R. v. Ford, 2 Salk. 690. Bull. 
 
 (2) Gilb. Ev. 127. Bull. N. P. 292. N. P. 292. Crosby's case, 10 St. Tr. 42, 
 R. V. Davis, 5 Mod. 75. R. v. Ford, Appx. fol. ed. S. C. 2 Howell's St. Tr. 
 2 Salk. 690. Pendock v. Mackinder, 820. 
 
 2 VVils. 18. Wilies, Rep. 666. S. C. (5) Lee v. Gansel, Cowp. 8. Gilb. 
 
 Fortesc. Rep. 209. Prindle's case, 2 Ev. 129. Com. Dig. tit. Testm. A. 5 
 
 Leach, Cr. C. 496. Sutton v. Bishop, 4 Burr. 2283. 
 
 (3) Chater v. Hawkins, 3 Lev. 426. (6) Com. Dig. lb. 8 East, 78. 
 Com. Dig. tit. Testm. A. 5. Gilb. Ev. (7) R. v. Castel Careinion, 8 East, 
 127. Fortesc. Rep. 209. In such ca- 78. 
 
 ses punishment by the pillory is now (8) R. v. Teale, 11 East, 309. 
 
 abolished. See st- 56. G. 3, c. 138. Rands v. Thomas, 5 Maule & Selw. 
 
 But this statute does not make any 246. 
 alteration in the punishment of perjury, 
 
 (a) See Note 58, p. 64. 
 
 I
 
 Sect. I.] Of Incompetency from Infamy. 31 
 
 will not make him incompetent, however it may affect his 
 credit, (a) 
 
 If the objection to the competency of a witness is founded on 
 criminal proceedings instituted in any other court, tliese proceed- 
 ings must appear on their face to be regular, and be rei;ularly 
 proved. A document, purporting to be an indictment and con- 
 viction, is imperfect as a record, without a caption; since the 
 caption shows by what authority the indictment was found. (1) 
 And the indictment must slate all circumstances essential to con- 
 stitute the offence. (1) 
 
 1 he party, who objects to a witness as attainted, will have to Reversal of 
 '' , •' judgment, 
 
 prove the attainder by proceedings in the regular course of law; 
 
 and the opposite party may produce other proceedings in answer 
 to the objection. If a conviction and judgment are read on the 
 one side, this may be answered on the other by reading a rever- 
 sal of the judgment upon a writ of error. If the incapacity 
 arises from outlawry under a charge of treason or felony, it will 
 be removed by proof of the reversal of that outlawry. Or if the 
 objection is, that the witness has been attainted by an act of 
 parliament, which subjects him to all the penalties of an attain- 
 der unless he surrenders before a certain day, (which is a kind 
 of parliamentary outlawry,) it may be shewn, that the witness 
 surrendered conformably with the act. Such an objection and 
 such an answer occurred on the trial of Lord Lovat; (2) and in 
 that case the record of a proceeding, commenced on the part of 
 the crown, and defended on the part of the witness by a plea 
 of surrender, which the Attorney General confessed to be true, 
 was allowed to be conclusive proof of the fact of his surrender 
 within the limited lime. 
 
 A person convicted of felony being thus disabled from giving Competency 
 •A ■ ■ u -J J u u 1 J- ^ how restored- 
 
 evidence, it remains to be considered, by what means the disa- 
 bility may be removed. 
 
 1 In ancient times, this was affected in many cases by a pro- i- P"''?^"^"'' 
 
 (1) Cooke V. Maxweil. 2 Starke, N- (2) 9 St. Tr. 652. 665, fol. ed. S. C. 
 P. C. 184. 18 Howell's St. Tr. 1004, 1011. 
 
 (a) See Note 59, p. 65.
 
 ^2 Of Incompetency from Infamy. [Ch. 4. 
 
 ceeding then in use, called purgation, (1) by wliicli all persons 
 entitled to the benefit of clergy, were allowed to clear themselves 
 before the ordinary, even after a conviction in the temporal 
 courts. If on this canonical trial the party failed, which seldom 
 liappened, he was sentenced to remain in the ordinary's prison; 
 and, on the other hand, upon his acquittal, he was pronounced 
 innocent, absolved from infamy, and discharged from the punish- 
 ment, incapacity, and discredit incident to the felony. Thus, 
 formerly, allowance of the privilege of clergy, followed by purga- 
 tion, would restore the competency of a witness. 
 
 clefv. 2- ^^ ^^"^s afterwards found necessary to abolish this mode of 
 
 trial by purgation; and therefore the stat. 18 Eliz. c. 7, s. 3, 
 enacted, that person? admitted to the benefit of clergy should 
 no longer be delivered to the ordinary for purgation; but, 
 " after the clergy allowed and burning in the hand, should forth- 
 with be enlarged and delivered out of prison." In the construc- 
 lion of this statute the judges held, that, as the old mode of 
 purgation was thus taken away, the burning in the hand should 
 be considered, as having the same effect in clearing away the 
 disabilities of conviction. (2) " It was never the intent of the 
 statute," said Lord Chief Justice Treby, in Lord Warwick's 
 case, " nierely to set at large and leave him a convict-felon; 
 but when is said 'delivered,' it meant delivered free from all 
 incident and further penalties, as if delivered upon purgation. "(3) 
 Hence the burning in the hand was considered in the nature of a 
 statute-p.irdon.(4) 
 
 ^^%y It appears to be established by several cases, that proof of ilie 
 record, whereby clergy was granted, without further proof of the 
 burning in the hand, was not sufficient: (5) the U'Ords of the 
 statute being, that he should be " delivered after clergy allowed and 
 
 (1) Treby C. J. in Lord Warwick's (3) Lord Warwick's case, 5 St. Tr. 
 case, 5 St. Tr. 172, fol. ed. 13 Howell's 172, fol. ed. S. C. 13 Howell's St. Tr. 
 St. Tr. 1017. S. C. Hob. 288. Kelyiig, 1017. 
 
 37. (4) Hob. 292. Bull. N. P. 292. 
 
 (2) Heston's case, cited in Foxley's (5) Searle v. Williams, Hob. 28S. 
 case, 5 Rep. 110. Searle v. Williams, Armstrong and Lisle, Kel. 93. Lord 
 Hob. Rep 292. Celier's case, Sir T. Warwick's case, 6 St. Tr. 166, fol. ed. 
 Raym. 369. Lord Castlemain's case, 13 Howell's St. Tr. 1003, S. C. 
 
 ib. 380. Kelyng, 37.
 
 Sect. 1.] Of Incompetency from Infamy. 
 
 33 
 
 burning in the hand." This, therefore, is necessary to be proved, 
 except in those cases where the benefit of clergy may be allowed 
 without branding, as to a clerk in holy orders or peer of parliament 
 or where the branding is excused by pardon, or commuted for an- 
 other punishment (as a fine,) and then it must be shown, that the 
 witness has sufi>;red such substituted punishment instead of the 
 other. ( I ) In Lord Warwick's case, above cited, one who had been 
 convicted of manslaughter and allowed his clergy, but not burnt in 
 the hand, was called as a witness for the prisoner; and, on an objec- 
 tion to his competency, the lords referred it to the judges |)resent, who 
 thought he was not a competent witness, as the statute had made 
 the burning in the hand a condition precedent to the discharge. (2) 
 
 3. In cases where, instead of this burning in the hand, some ^- Effect of 
 
 I -I II 1-11 r 1- / suffering pun- 
 
 Other punishment has been substituted by act ot parliament, (as ishment. 
 
 transportation, by st. 4 G. 1, c. 11, (3) or a fine or whipping by st. 
 
 19 G. 3, c. 74, s. 3, (4) felons, within the benefit of clergy, are 
 
 made competent after suffering such substituted punishment: these 
 
 statutes expressly providing, that it shall operate as a pardon, and 
 
 completely remove all incapacities, {s) 
 
 4. A person convicted of grand larceny and sentenced to trans- Under sen- 
 
 r III f ^ • , , ,, . lence of trans- 
 
 portation tor seven years, who has been confined in the hulks, and poitation. 
 
 (1) Burridgcs's case, .3 3 P. Wms. 
 485, 490. 
 
 (2) See Infra p. 33, on sutistitulion 
 of punisliment for burning in the hand. 
 
 (3) The first section of this statute 
 enacts, that on the conviction of any 
 person for grand or petit larceny, 
 where the convict is entitled to benefit 
 of clergy, and liable only to the penal- 
 ties of burning in the hand or whipping 
 (except persons convicted for receiving 
 or buying stolen goods, knowing them to 
 be stolen,) the court before whom the 
 person is convicted, instead of ordering 
 the offender to be burnt in the hand or 
 whipped, may direct, that he shall be 
 transported for the space of seven years; 
 and on the conviction of an offender for 
 a crime, for which he would be exclud- 
 ed from the benefit of clergy, but to 
 whom mercy is extended on condition of 
 transportation, the court may allow him 
 
 the benefit of a pardon under the great 
 seal. And, by the second section of the 
 same act, where any such offenders shall 
 be transported, and shall have served 
 their respective terms, according to the 
 order of any such (;ourt, such services 
 shall to all intents and purposes have the 
 efl"ect of a pardon, as for the crime for 
 which they vvere so transported. 
 
 (4) The St. 19 G. 3, c. 74, enacts, 
 that in case of a conviction of any felony 
 within the benefit of clergy, for which 
 the ofTendei is liable to be burned in 
 the hand, the court may impose a mod- 
 erate pecuniary fine instead of the burn- 
 ing, or may order the offender (except 
 in case of man-slaughter) to be publicly 
 or privately whipped : and that such fine 
 or whipping shall have the same effect 
 as the burning, in discharging from felo- 
 nies or restoring to credit. 
 
 Vol. I. 
 
 (s) See Note 60. p 65. 
 
 5
 
 34 Of Incompetency from Infamy, [Ch. 4. 
 
 discharged at the expiration of ihe seven years, is a competent wit- 
 ness; sucli confinement and discliarge operaling as a statute par- 
 don. (1)(0 
 
 tenceofim- -'^ u'itness who lias been imprisoned under sentence of imprison- 
 
 prisonment. ment for grand larceny, but which sentence omitted to order either 
 burning in the hand, whipping or fine, is not restored to competen- 
 cy, though he suffer the whole imprisonment. (2) («). 
 
 Peers of parliament, (3) and all clergymen, were entitled to ben- 
 efit of clers,y, and therefore competent witnesses, without burning 
 in the hand, and consequently without any punishnient in its stead. 
 
 Benefit of cler- But the benefit of clergy, wfth respect to persons convicted of 
 gy a 13 e . fgjQpy^ jg j^Q^y abolished, by a recent statute. (4) Consequently, 
 the commuted punishments of transportation, fine, or whipping, 
 in lieu of burning in ihe hand, are abolished. And this alteration 
 will be found, in tnany cases, to have an inconvenient effect on the 
 general rule as to the competency of witnesses. 
 
 Petty larceny. As the privilege of clergy, at common law, extended only to cap- 
 ital felonies, and not to petty larcenies or misdemeanors, persons 
 convicted of petty larceny could not be discharged under st. 18 
 Eliz. c. 7, s. 3, which relates only to such as were allowed their 
 clergy;^ nor were they included in stat. 19 G. 3, c. 74, s. 3, which 
 gives a discretionary power to substitute a moderate fine or whip- 
 ping for burning in the hand; (5) so that convicts in petty larce- 
 ny, though they had suffered the sentence of the law, were still in- 
 competent to give evidence, while in many cases convicts in grand 
 larceny were admissible. This inconsistency was removed by a 
 statute of the present reign, which has been already mentioned. (6) 
 
 (1) Badcock'3 case, Rnss. & r»y. (.3) St. 1 Ed. 6, c 12, s. 4. 
 Cr. C. 248. The witness, while in tho (4) 7 & 8 G. 4, c 2S, s. (j. 
 halks, escaped twice, and was brought (5) St. 4 & 5 il. 7,c. 13. 
 
 baclt again each time within twenty- (6) St 31 G. 3, c. 35, and 36 G, S> 
 four hours; the judges held, that this c. 29, Irish stat. See aisa 7 & 8 G. 4, 
 circumstance did not destroy the ef- c. 29, s. 2. The St. 31 G. 3, c. 5, re- 
 fect of the statute-pardon, as he had cites, that persons convicted of grand 
 served out the remainder of his term. larceny are by their punishment restored 
 
 (2) Harding's case, 1 Ry. JVIo. Cr. lo their credit as witnesso* 
 Ca. 39. 
 
 (/) See Note 61, p. 65. (w) See Note 62, p. 6C.
 
 Sect. 1.] Of Incompelcncy from Infamy. 36 
 
 4. The competency of a witness may be restored by a pardon **• Pardon «"»- 
 ' -^ , "^ der great «e?:l. 
 
 from the Crown, under the great seal. Some indeed have 
 
 thought, that a pardon can only remove the punishment, not the 
 
 blemish of ciiaracter. ( 1 ) But it is now settled, that a pardon of 
 
 treason or felony, even after convictiin or attainder, not only 
 
 takes off every part of the punishment, but also clears the party 
 
 from the legal disabilities of in^'amy, and all other consequences 
 
 of his crime. (2)* A pardon is said to make the witness a new 
 
 creature, and gives him a new capacity; the crime, indeed, may 
 
 still be objected against him, as affecting his credit, but cannot 
 
 be urged against his competency as a witness. (y) It is indeed 
 
 hiiihly expedient, that a pardon should be allowed to have this 
 
 eflect, and th.it a discretionary power should be vested in the 
 
 crown to remove such legal incapacities: otherwise, a person, 
 
 oiace convicted of felony, would be stigmatised for life, and 
 
 treated as infanaous in courts of law, though in the opinion 
 
 of mankind his character for truth and honesty may have beerj 
 
 completely redeemed, (w) 
 
 As in the greater offences, so in those below felony, (as perjury inmisdemean- 
 at common law, &c.,) a pardon will restore competency, where °"' 
 Che disability is a consequence of the judgment. (3) But where 
 the disability is declared by act of parliament to be part of the 
 punishment, as in the case of a conviction for perjuiy or subor- Perjurj. 
 aatiou of peijury on the stat. 5 Eliz. c. 9, the king's pardon will 
 not make tlie witness competent. (3) (.r) In tiiis case the statute 
 expressly provides, that he shall never be admitted to give evi- 
 dence in courts of justice, until the judgment be reversed. 
 
 (1) Lord Coke in Brown v. Cm- s. 48. Com. Dig. Testm. A 5. ReiHy's 
 «haw, 2 Bulstr. 154. Dodridge J. in case, Leach Cr. C. 510. Lord War- 
 Harris V. Whyte, Palm. 412. Latch, wick's case, 5 St. Tr. 166, fol. ed. 
 8i; and other dicta cited in Hargrave, 13 Howell's St. Tr. 1003, S. C. 
 
 Jurid. Arg. vol ii. p 2(i3 (3) 2 H. P. C. 278. R. v. Greepe, 
 
 (2) Cuddington v. VVilkins, Hob. 67, 2 Salk. 514. 1 Ld. Raym. 256, S. C. 
 82. Rookwood's case. Rep. temp. R- v Ford, 2 Saik. 690. Crosby's 
 Holt, 685. 4 St. Tr. 6S2. fol. ed. S. C. case, 2 Saik. 689. Bull. N. P. 292. 
 13 Howell's St. Tr. 185. Crosby's Hawk. b. 2, c. 46, s. 112. R. v. War- 
 case, Lord Raym. 39 Lord Castle- den of the Fleet, Rep. temp. Holt, 
 main's ease. Sir T- Ray, 379. 2 H. 135. Anonvm. case, 3 Saik. 155. 
 
 P. C. 278. Hawk. P. C. b- 2, c. 37. 
 
 * The kiaig's perogative has the same efle'^t in Scotland in restoring the compe- 
 tency of a convict See Burnet's History of the Criiriinal Law of Scotland, p. 405, 
 and the report there of the cane of Bell and iMortimer in 1800, in which the rule was 
 fully established- 
 
 (d) See Note 63, p. 66. (n-) See Note 64, p. 66- {x) Sec Note 65, p. 66.
 
 36 
 
 Conditional. 
 
 Pardon under 
 ■ign manual. 
 
 General rule. 
 
 Accomplices. 
 
 Of the Admissibilittj of Accomplices. [Ch. 4. 
 
 Tf the pardon is conditional, the performance of the condition 
 ought to be sliown; (1) for on that depends all its efficacy. Thns, 
 where pardon is on condition of transportation for a number of 
 years, the witness is not competent before the expiration of the 
 term or other lawful determination. (2)(j/) 
 
 Where a wanant is 5|,ranted under the sign manual, counter- 
 signed by a principal secretary of state, for a free or conditional 
 pardon of a |)er3on convicted of felony, his discharge from custody 
 in the case of a free pardon, and the performance of- the condition 
 in tlie case of a conditional pardon, will now have the effect of a 
 pardon under the great seal, as to the felony for which the pardon 
 is granted. (3) 
 
 Sf.ct it. 
 
 Of Ike Admissibility of Accomplices. 
 
 It has been before mentioned, that a witness is not incompetent 
 from infamy of character, unless a conviction and judgment are 
 proved., though he may confess himself guilty of an infamous crime. 
 Nor is it a sufficient objection to his competency, that he has been 
 an accomplice in guilt with the prisoner at the bar. 
 
 The evidence of accomplices has been at all times admitted, (4) 
 from a principle of public policy and from necessity, as it is 
 scarcely possible to detect conspiracies and many of the worst 
 crimes without their information. In the case of Charnock, (5) 
 who was tried for high treason in the time of William III, 
 Lord Holt said, in his address to the jury, " Conspiracies are 
 deeds of darkness as well as of wickedness, the discovery whereof 
 can properly come only from the conspirators themselves; and 
 the evidence of accomplices has always been allowed good proof 
 
 (1) Hawk, b 2, c. 37, s. 45. Grose, J. 7 T. R. 609. Westbeer's 
 
 (2) Hawk. b. 2, c. 37, s. 4.5. Bur- case, Leach, Cr. C. 14. Despard's case, 
 ridge's case, 3 P. Wms. 485. See 28 Howell's St. Tr. 4S8. And see on 
 Badcock's case, supra p. 34. this subject the report of the proceed- 
 
 (3) St. 7 & 8 G. 4, c. 28. s. 13. ings under a special commission at 
 
 (4) 1 H. P. C. 303. Hawk. b. 2, York, in 1813, pp. 17, 150. 
 
 c. 46, s. 94. Gilb. Ev. 123. Char- (5) 4 St. Tr. 594. S. C. 12 How- 
 nock's case, 4 St. Tr. 594. 12 How- ell's St. Tr. 1454, referred to by Lord 
 ell's St. Tr 1463, S. C. Rookwood's Ellenborough in Despard's case, 28 How- 
 case, 4 St. Tr. 6G3. 12 Howell's St. Tr. ell's St. Tr. 488. 
 143, S. C. Attwood's case, cited liy 
 
 (y) See Note 66, p. 66.
 
 Sect. 2.] Of the Admissibility of Accomplices. 37 
 
 In aJI ages; and they are most proper witnesses, for otherwise it 
 is hardly possible, if not altogether impossible, to have a full proof 
 of such secret contrivances;" and he adds, " such discoveries are 
 to be encouraged in all governments, without which there can be 
 no safety." But though accomplices are received as witnesses, 
 their testimony ought to be received by a jury with a sober degree 
 of jealousy and caution; for, on their own confession, ihcy stand 
 contaminated with guilt, and, in the hope of lessening iheir own 
 infamy, will often be tempted to throw as much guilt as possible 
 upon the prisoner. They may be also In some cases entitled to re- 
 wards on the prisoner's conviction, and in all cases exjiect to earn 
 a pardon; and as fear is usually their motive in giving evidence, 
 the same feeling may tempt them to exaggerate their statement, 
 for the purpose of destroying their former associate, and securing 
 iheujselves against his vengeance. (1) (c) 
 
 The practice of admitting accomplices to give evidence against Approvement, 
 their associates has been adopted from analogy to the ancient doC' 
 trine of approvement; a part of the old law, which, though now 
 grown obsolete, may properly be mentioned here, from its affinity 
 to the more improved modern usage substituted in its place. (2) Ap- 
 provement is when a prisoner, arraigned on a capital charge, con-- 
 fesses the fact before plea pleaded, and accuses his accomplices of 
 the same oflence. He must also discover upon oath, not only the 
 particular crime charged upon him, but all treasons and felonies, 
 of which he can give any information. It is then in the discretion 
 of the Court either to refuse or adn]it him to be an approver : and if 
 on his confession it appears, that he was a principal and tempted 
 the others, he ought not to be received. But if he does not dis- 
 cover the whole truth, or, on the trial of the appeal, the party ac- 
 cused should be acquitted, judgment of death passes against him 
 upon his own confession of tiie indictment. 
 
 (I) On the subject of tlie credibility Lord Chief Justice of the Court of K, 
 
 of accomplices, considered witli re- B. in Ireland, in the trial of Forbes, 
 
 ference to the nature of the particular Graham, and others, for a conspiracy, 
 
 offence in which they have been con- 1823. Printed Rep. p. 355. 
 eerned, the reader is referred to some (2) Rudd's case, Cowp. 335. 
 excellent observations made by the 
 
 ($!) See Note 67, p. 67
 
 33 Of the Admissibiliiy of Accomplices. \C\\. 4. 
 
 This practice ot ollouing approvements, which was at all times 
 in the discretion of the Court, is now grown into disuse, and entire- 
 ly discontinued; more mischief having arisen from false accusa- 
 tions under pretence of approving, than benefit to the public by the 
 discovery and conviction of real offenders. (1) Whatever good 
 was to be expected from this old method, is now more effectually 
 provided for auti secured by one of the following methods: — First, 
 there are several acts of parliament which enact, in cases of robbe- 
 ry, (2) coining, (3) biirgjiry, (4j housebreaking, (4) horse-steal- 
 ing, (4) privately stealing to the value of five shillings from shops, 
 warehouses, stables and coach-houses, (4) or uttering counterfeit 
 money, (5) that, if any such ofiender, being out of prison, shall 
 discover two or more persons, who have committed the like of- 
 fences, he shall be entitled to pardon for such crime, on their con- 
 viction. Another method is by special proclamations in the Ga- 
 zette or otherwise, promising pardon on certain conditions. 
 
 Implied com- -^^^ ^'^"^ practice most generally adopted is that of admitting ac- 
 pact with ac- complices to give evidence for the crown, under an implied promise 
 of pardon, on condition of their making a full and fair confession ot* 
 the whole truth. (6) On a strict and ample performance of this 
 condition, to the satisfaction of the judge presiding at the trial, 
 they have an equitable title to a recommendation for the king's 
 mercy. Tliey cannot plead this in bar to an indictment against 
 them, nor can they avail themselves of it as a defence on their trial, 
 though it may be made the ground of a motion for putting off the 
 trial, in order to give the prisoner time to make an application in 
 another quarter. (7) (a) 
 
 This equitable claim to pardon does not protect an accomplice 
 from prosecutions for other offences, in which he was not concern- 
 ed with the prisoner. (8) With respect to such offences, therefore, 
 he is not bound to answer on his cross-examination. (9) (/;) 
 
 (1)2 Hale, P. C. 227, ch. 29. (7) Cowp Rep. 339. 
 
 (2) St. 4 W. &. M. c. 8, s. 7. (8) Lee's case, Russ. Ry. Cr. C. 
 
 (3) St. 6 W. 3, c. 17, s 12. 361 Brunlon's case, Russ. Ry. Cr. 
 
 (4) St. 10 W. 3, c. 25, 3. 5. St. C. 454. 
 
 5 Ann. c. 31, s. 4. (9) West's case, O. B sess. after 
 
 (5) St. 15 Geo. 2, c. 28, s. 4. Easter term, 1821. 
 
 (6) Rudd's case, Cowp. 339. 
 
 (a) See Note 68, p. 68. (6) See Note 69, p. 68.
 
 Sect. 2.] Of the Admissibility of Accomplices. S9 
 
 If an accomplice, after having confessed the crime, and after be- Compact bo- 
 ins, received as a witness against his companions, breaks the con- 
 dition on which he is admitted, and refuses to give full and fair in- 
 formation, the Court may direct a bill to be presented forthwith to 
 the grand jury against him, or, if they are discharged, may com- 
 mit him to j)rison upon his own written confession, (c) 
 
 It is not a matter of course, to admit a person, charged with the Motion to ad- 
 conimission of a crime, as witness on the Inal ol his accomplices, pUce. 
 not even after he has been so allowed by the committing magis- 
 trate; but if his evidence is wanted before the grand jury, and ab- 
 solutely necessary for the finding of the bill, a motion, for the pur- 
 pose of his attendance, must be made by the counsel for the prose- 
 cution, and the Court, under all the circumstances of the case, will 
 either grant or refuse an order, as may most effectually answer the 
 purpose of justice, {d) 
 
 The general rule then is, that a person who confesses himself Accomplicea 
 guilty of a crime, is a competent witness against his partners in ^l^^" <^'*'"P®' 
 guilt. If two or more persons are charged with a crime, one who 
 is not indicted may be a witness against the others, though he has 
 had a promise of pardon or some reward on condition of giving evi- 
 dence. (1) 
 
 If he is indicted separately, he is a competent witness, either on separately in. 
 the [lart of the prosecution, or on behalf of the prisoner on trial; (2) dieted, 
 even after conviction, he is not incompetent, unless judgment has 
 passed ; for it is not the conviction, but the judgment that creates 
 the disability. It was formerly thought, from analogy to the an- 
 cient doctrine of approvement, that an accomplice, separately in- 
 dicted for the same offence, could not give evidence against the 
 others, unless he had first pl-aded guilty to the indictment against 
 him; (3) but the rule is now settled as above stated. 
 
 (1) Tonge's Case, Kel. 17. 1 H. ston and Downes, 2 Roll. Abr. 685, pi. 
 P. C. 30.3, S. C. Layer's case, 10 St. 3. Hawk. b. 2, c, 46, s. 99. Gilb. Ev. 
 Tr. 259. 19 Howell's St. Tr. 375, S. C. 118. Bath v. Montague, cited Fortesc. 
 Hawk. P. C. b. 2, c. 46, S. 135. Rep. 247. 
 
 (2) Case of Bilmore and others, 2 (3") Sir P. Cresby's case, 1 H. P. C. 
 H PC. 279. 1 H. P. C. 305. Gun- 303. 
 
 (c) See Note 70, p. 68. (rf) See Note 7), p. 68.
 
 40 
 
 Of the Admissibility of Accomplices. [Ch. 4. 
 
 If the evidence of an nccornplice is deemed to be absolutely ne- 
 cessary in snpf)ort of a prosecution, the proper course is that before- 
 mentione<], to apply to the Court for permission to send him as a 
 witness before the grand jmy. And should this course be adopted, 
 it will be more convenient not to include him in the bill. But if 
 he is indicted together with the rest, and his evidence is thought 
 to be indispensably necessary, he may still be used as a witness, in 
 
 Pleading gui'- some cases, with the consent of the Court. Thus, if he plead euil- 
 ty, and by the judgment of tiie Court is fined, |)ays tlie fine, (in a 
 case, where such fine may be imposed, and where the suffering of 
 this substituted punishment restores competency,) he may be a 
 
 Acquitted to be witness against the others. In a prosecution for a conspiracy, a 
 verdict of acquittal may be taken for some of the defendants, be- 
 fore the opening of the case against the rest, and the defendants, 
 so acquitted, may be called as witnesses. (1) And there appears to 
 be no objection in point of law, in the case of felony also, (if the 
 Court appiove of the couise,) to allow a verdict of acquittal to be 
 taken as to one of the persons indicted, for the purpose of using his 
 evidence against the others. 
 
 ty and fined. 
 
 used as wit 
 nes3 
 
 As on the trial of one of several persons, who are separately in- 
 dicted, another of the persons indicted, who has not yet been tried; 
 is a competent witness in support of the prosecution; so he is equal- 
 ly competent to give evidence on behalf of the accused, (c) 
 
 Principal 
 felon. 
 
 On the trial of an accessary, for a misdemeanor in receiving 
 stolen goods, under stat. 22 G. 3, c 58, the principal felon is a 
 competent witness; the statute enacting, that the accessary may 
 be proceeded against, although the principal felon has not been con- 
 victed, and whether he be or not amenable to justice. (2) So the 
 principal felon may be a witness, in a prosecution on stat. 4 G. 1, 
 c. 11. for taking a reward to help to stolen goods. (3) (/) 
 
 The evidence of accomplices is also admitted on the trial of 
 
 (1) R. V. Rowland and others, 1 Ry. 467. Price's case, ib. 468, n. (1) Pat- 
 & Mo. 402. ram's case, 2 East, P. C. 782. 
 
 (2) Haslam's case, 1 Leach, Cr. C. (3) Wild's case, 2 East, P. C. 782. 
 
 («) See Note 72, p. 69. ( /") See Note 73, p. 69.
 
 Sect. 2.] Of the Admissibility of Accomplices. 41 
 
 smaller offences. In an information under slat. 2. G. 2, c. 24, for Accomplices, 
 
 . 1 '" information, 
 
 brtbery at an election, a person, who has received a bribe, may be &.c. 
 a witness against the defendant, though in case of a conviction he 
 would be indemnified from the jDcnalties of the act.(l)(5-) 
 
 In an action of trespass, a co-trespasser, who is not sued, maybe Co-trespasser, 
 a witness against the defendant, though left out of the declaration 
 for that pur[)ose, and alihough satisfaction from one is a discharge 
 for all the rest. (2)(/i) A persori, who has set his name as sub- Attesting wit- 
 scribing witness to a deed or will, is admissil'le to impeach the ex- 
 ecution of the instrument, (3)(i) alihough his evidence is to be re- 
 ceived with all the jealousy necessary attaching to a witness, who 
 upon his oath asserts to be false, what he lias by his solemn act 
 attested as true. (4) 
 
 Since accomplices are compclent witnesses, it necessarily fol- Confrmatory 
 lows, that, if their evidence is believed by a jury, a prisoner may, 
 strictly speaking, be legally convicted upon it, though it be uncon- 
 firmed by any other evidence as lo his identity. (5) But their tes- 
 timony alone is seldom of sufficient weight with a jury to induce 
 them to give a verdict against the prisoner; the temptation to com- 
 mit perjury being so great, where the witness by accusing another 
 may escape himself. (6) The practice, therefore, it-', to advise the 
 jury to regard the evidence of an accomplice, only so far as he may 
 be confirmed, in some material part of his narrative, by unimpeach* 
 able testimony. It is not necessary that it should be confirmed in 
 every circumstance which he details in evidence: for there would 
 be no occasion to use him at all as a witness, if his narrative could 
 be completely proved by other evidence free from all suspicion. Nor Confirmation 
 need it appear from the confirmatory evidence, that bespeaks truth ^^ '° °"^' 
 with respect to all the prisoners, or with respect lo the share which 
 
 (1) Bush D. Railing, Sav. 289, cited (4) 1 Ves. & Beam. 208. 
 
 by Lord Mansfield, Cowp. 199. Snead (5) Atwood's case, 2 Leach, Cr. C. 
 
 V. Robinson, VVilles, 423, and n. (c) 521. Durham's case, ib. 538. By 
 
 ib. 425. Ld. Ellenborough, (>. J. in R. v. Jones, 
 
 (2) Bull. N. P. 286. Luttrel v. 2 Campb. N. P. C. 133. 31 Howell's 
 Reynel, 1 Mod. 283. Chapman v. St. Tr. 315. 325, S. C. 7 T. R. 609, 
 Graves and others, 2 Camp. b. N. P. S. P. 
 
 C. 333, n. (6) By Lord iMansfield C. J. Cowp. 
 
 (3) Lowe V. Jolifte, 1 Black. Rep. Rep. 336. 
 366. 7T. R. 604, 611. 6 East, 195. 
 
 (f ) See Note 74, p. 70. {h) See Note 75, p. 70. (i) Sec Note 76, p. 70. 
 
 Vol. I. 6
 
 42 Of the Admissibility of Accumplicts. [Ch. 4. 
 
 each had in the transaction. But if the jury are satisfied, that he 
 speaks truth in some material parts of his testimony, in vvhicii they 
 see unimpeacliable evidence brought to confirm him, that is a 
 ground for them to beheve, that he also speaks truly in other parts, 
 and with regard to otiier prisoners, as to whom there may be no 
 confirmation. (1) 
 
 The confirmation, here intended, is not a confirmation merely of 
 those parts of the narrative which implicate the accomplice alone, 
 and which may be true without involving tlje prisoners in any share 
 of the transaction; but such a corroboration by unimpeached evi- 
 dence, as may satisfy the jury that tliose persons, whom he char- 
 ges with a participation of the crime, were, in truth, as lie repre- 
 sents, his confederates and associates in guilt. The principle, upon 
 which courts and juries are disposed to give credit to an acconjplice, 
 .however base his conduct, when he is confirmed by clear and unim- 
 peachable evidence, is well warranted on this consideration, that 
 witnesses, who agree in the main facts of a case, without concert 
 and without contrivance, acquire a credit, entirely independent of 
 character, from the mere agreement and consistency of their nara- 
 tive. ( j) 
 
 Informers. There is another class of persons, which cannot properly be 
 
 considered as coming within the description, or as partaking of 
 the criminal contamination of accomplices; persons, entering into 
 communication with conspirators, with an original purpose of discov- 
 ering their secret designs, and disclosing them for the benefit 
 of the public. (2) The existence of such original purpose 
 on their part is best evinced by a conduct, which precludes 
 them from ever wavering in or swerving from the discharge of 
 their duty, if they might otherwise be disposed so lo do; as 
 when the witness binds himself to his duly by an early commu- 
 nication, and receives directions as to the steps which he is after- 
 
 (1) Report of the Trials at York, elt's Case. Russ. & Ry. Cr. C. 252. 
 
 Jan- 1813, on special commission, p. 3, Case of Fordham, Harvey, and two 
 
 17, 50, 150, 165, 201. Despard's case, others, tried by Lavvreii(-e, J. at O. B. 
 
 28 Howell's St. Tr. 488; and the case Jan. 1807, before the Judges, 25th Apri) 
 
 cited by Lord EUenborough C. J. in his 1807, H. MS. 
 
 summing up, on the trial of Valentine (2) Part of Lord Ellenborough's ad- 
 Jones, 31 Howell's St. Tr. 325. Daw- dress to the jury in Despard's case, 28 
 bar's case, 3 Stark. N. P. C. 31. Brik- Howell's St. Tr 4S9. 
 
 (» See Note 77, p. 71.
 
 Sect. 2] Of the Admissibiliti/ of Accomplices. 43 
 
 wards to pursue, on entering into the apparent prosecution of the 
 purposes of the conspiracy. With this view and object, such a 
 witness is not an accomplice, although perhaps a great degree of 
 objection or disfavor may attach to him on other grounds, for cer- 
 tainly (however necessary it may be in some cases) no person of 
 very delicate feelings would choose to go on from day to day, ap- 
 parently forwarding the purposes of a conspiracy, in order that he 
 might afterwards disclose it, and bring the parties concerned in it 
 to justice; but still, whatever may be the merit or demerit of this 
 species of conduct on other grounds, such a witness is not, strictly 
 speaking, an accomplice. (1). 
 
 Tiie cases which have been mentioned, respecting the evidence 
 of accomplices, and on the admissibility of persons to prove the for- 
 gery of any instrument, wln'ch they have signed as subscribing wit- 
 nesses clearly show tbat a mairs guilt in the transactions disclosed 
 is not a sufficient reason for rejecting his testimony, however it may 
 affect his credibility. (2) In the case of Walton v. Shelley, (3) in- Witness inval- 
 deed, which was an action upon a bond, "iven by the defendant in ' /^^'"s an '"- 
 
 ' I ' c J strur 
 
 ment. 
 
 consideration of the plaintiff's delivering up certain promissory notes, 
 the Court of King's Bench held, that the indorser of one of the notes xndorsar. 
 ought not to be allowed to prove the consideration of the note usu- 
 rious, on a supposed principle of public policy, that no party who 
 has signed a paper or deed, and by his signature given it credit, 
 shall ever be permitted to give testimony to invalidate that instru- 
 ment. This appears to have been the first case in support of such 
 a rule, and the contrary seems now to be fully established. 
 
 In the later case of Jordaine v. Lashbrooke, (4) this subject was 
 very fully discussed; and the Court there determined, that in an 
 action on a bill of exchange against the acceptor, the payee, who Payee, 
 was ajso endorser, was a comjjetent witness for the defendant, to 
 prove, that the bill, which was unstamped, and purported to 
 be drawn at Hamburgh, was, in fact, drawn in London, and 
 
 (1) Part of the same address, 28 lant, audiendi non sunt" — was the 
 Howell's St. Tr. 489. max inn of the civil law. Donriat, 
 
 (2) Ante p. 41. See also R. v. book 3, tit. 6, sect 3, art. 12. 
 
 Tcale, ante, p. 30. (4) 7 T. R. 601. Ashurst J. con- 
 
 (3) 1 T. R. 296. " Testes qui ad- tra. See Jones v. Brooke, 4 Taunt, 
 versus fidem suam testationis vacjl- 464. 1 Ves. & Beam. 208.
 
 4i. Of the Adnil^sibiliiy of Accomplices. [Cli. 4. 
 
 tlieiofore void for the want of a stamp. "The constant practice of ex- 
 amining accomplices, (said Mr. .Tus'ice Lawrence, in delivering liis 
 opinion,) and the case of a witness to a forged will who has obtain- 
 ed probate, show, that the mere circumstance of a man's represent- 
 ing himse'f as having done things inconsistent with common 
 honesty, is not sufficient to reject his testimony, however it may 
 weaken and impeach it. (1) Nor is there any distinction with re- 
 spect to negotiable securities, where the point to be considered is the 
 competency of the witness; for supposing what he has done in 
 putting such instrument into circulation to be ever so great a fraud 
 and ever so mischievous, he is still a witness unconvicted of any 
 crime, and without interest, and not more devoid of principle than 
 many who have been mentioned as constantly admitted." (2) {k). 
 
 In an action of assumpsit for goods furnished to a ship, it was 
 proved on the part of the plaintiff, that the defendant's name was 
 in the register as joint owner with another person, on whose oath 
 the register was obtained; and that after the lime of furnishing the 
 goods, the defendant executed to him a conveyance of the share, 
 which he appeared from the register to have; the Court of King's 
 Bench held, that this person was a competent witness, on the part 
 of the defendant, to prove that he had inserted the defendant's 
 name without his privity and consent, and that the conveyance 
 was executed in order to divest him of all alleged interest. (3) In 
 this case, it is to be observed, there was not any ground of charging 
 the defendant with the amount of the goods, except in virtue of the 
 supposed interest, which the register represented him to have in 
 the ship; and under such circumstances, it was competent to him 
 to show that the property never belonged to him. 
 
 (1) 7 T. R. 610. 117, and some other cases of the same 
 
 (2) 7 T. R. 611. By this case of kind are overruled. 
 
 JordaiDe v. Lashbiooke, the case of (3) Rands r. Thomas, 5 Maule & 
 Adams v, Lingard, 1 Peake N. P. C. Sel. 246. 
 
 {k) See Note 78, p. 71.
 
 Cli. 5.] Of Incompetency of Witnesses from Interest. 45 
 
 CHAPTER V. 
 
 Of the Incompetency of Witnesses from Interest. 
 
 The fourth ground of incompetency is interest. (/) 
 
 It is a general rule, that all witnesses, interested in the event of General rule. 
 a cause, are to be excluded from giving evidence in favour of that 
 parly, to which their interest inclines them. They are excluded 
 from a presumed want of integrity or impartiality; and not, as some 
 have concluded, that they njay be saved from the tenjptation to 
 commit perjury. If that were the true principle, there would be 
 some inconsistency in excluding witnesses, who have an interest 
 even to the smallest amount, at the same time that others are admit- 
 ted who may he subject to the more powerful influence of relation- 
 ship, friendship or feeling. " Where a man," says Chief Baron Gil- 
 bert, " who is interested in the matter in question, comes to prove 
 it, it is rather a ground for distrust than any just cause of belief; 
 for men are generally so short-sighted, as to look at their own pri- 
 vate benefit, which is near to them, rather than to the good of the 
 world, that is more remote ; therefore, fiom the nature of human 
 passions and actions, there is more reason to distrust such a biasS" 
 ed testimony, than to believe it." 
 
 In treating of the incompetency of interested witnesses, it is pro- 
 posed to consider the subject in the following order:^- 
 
 First, with respect to the nature of the interest, which will dis- 
 qualify; 
 
 Secondly, of the rule on the subject of interest, considered with 
 reference to the parties in the suit; 
 
 Thirdly, of the same rule considered with reference to the hus- 
 band or wife of the party; 
 
 Fourthly, of the efl^ect of admissions by a party to the suit, or by * 
 his agent, against the party's interest; 
 
 (I) Sea Note 79, p. 81,
 
 -i6 Of the Nature of the Interest [Ch. 5. 
 
 Fifthly, of the admissibility of the confession of a prisoner 
 against himself; 
 
 Sixthly, of the competency of the party injured, as witness in 
 criminal prosecutions; 
 
 Seventhly, of certain exceptions to the general rule on the sub- 
 ject of interest; and. 
 
 Lastly, of the means by which the competency of an interested 
 witness may be restored. 
 
 Sect. I. 
 
 Of the JVaiwre of the Interest which disqualifies a Witness. 
 
 It is scarcely possible to reconcile the earlier cases on this 
 subject with those of a moie recent date. The old cases respect- 
 ing the incompetency of witnesses were generally decided on very 
 narrow grounds. Evidence, which ought to have been admitted, 
 although received with caution, was at once excluded without 
 being heard ; as if juries were not to be trusted with all the means 
 of deciding right, because it was possible their decision might be 
 wrong. " The old cases on the competency of witnesses," said 
 Lord Mansfield, (1) " have gone upon very subtle grounds. But 
 of late years the courts have endeavoured, as far as possible, con- 
 sistently with those authorities, to let the objection go to the credit 
 rather than to the competency of a witness." 
 
 At one time it was generally held, that, if a witness had no 
 interest in the question put to him, he was incompetent. Thus 
 it has been laid down in some of the earlier cases, as a general 
 rule, that one commoner cannot be a witness for another com- 
 moner ; and that in an action on a policy of insurance one under- 
 writer cannot be a witness for another. But a distinction has 
 since been made between an interest in the question put to a 
 ' witness, and an interest in the event of the suit ; (2) (m) and the 
 
 (1) Walton V. Shelley,! T. R. 300, (3) 1 T. R. 302. 3 T. R. 36. 7 
 cited by Lord Kenyon in Bent v. Ba- T. R. 603. 
 ker, 3 T. R. 32. ; and see R. v. Bray, 
 Cas. Temp. Hard. 360. 
 
 (m) Sea Note 80, p. 81.
 
 Sect. 1.] which disquulifits a Witness. 47 
 
 general rule now established is, that a wi.nesswill not be disqualifi- 
 ed on the ground of interest, unless lie is interested in the event of 
 the suit, {n) 
 
 The question then resolves itself into tliis, Whether the witness 
 proposed to be examined, has an interest in the event "f the suit? In 
 considering this subject, the simplest method will be, to ascertain, 
 in the first place, what is not such an interest in the event, as will 
 disqualify a witness from giving evidence: and then to enquire, 
 what is such an interest, as will disqualify him. 
 
 I. First, what is not such an interest, as will disqualify. 
 
 It is not an objection to the competency of a witness, that he has Wishes or ex- 
 wishes or a strong bias on the subject-matter of the suit, or that he ^^^^^^ benefit, 
 expects some benefit from the result of the trial, (o) Such circum- 
 stances may influence his mind, and affect his credibility; they are, 
 therefore, always open to observation, and ought to be carefully 
 weighed by the jury; who are to determine what dependence they 
 can have on his testimony; but they will not render him incompe- 
 tent, (p) 
 
 A witness who stands in the same situation as the party, for Witness in th©' 
 whom he is called to give evidence, is under a strong bias, and may wiuTthepartT 
 have strong wishes upon the subject: but is not on that account 
 disqualified, (q) Thus if there are two actions brought against two Co-iresspas»-- 
 peisons for the same assault, in the action against one the other 
 may be a witness; (I) or if several persons are separately indicted 
 for perjury'in swearing to the same fact, either of them before con- 
 viction may be a witness on the trial of the others. (2) So, in Wifeotcon- 
 Rudd's case, a woman, whose husband had been before convicted, ^"^*- 
 was admitted to give evidence against the prisoner, though she ex- 
 pected, that, in case of his conviction, her husband would receive a 
 pardon. (3) 
 
 Upon the same principle, in the case of Bent v. Baker, which Underwriter in? 
 was an action against an underwriter on a policy of insurance, po^'<^y- 
 
 (1) By Ashurst, J. 1 T. R. 301. 5 2 Roll- Abr. 685. art. 3; S. C. cited 2 
 Barn. & Cress. 387. H. P. C. 280, and in R. v. Gray (or 
 
 (2) Bath V. Montague, cit. Fortesc. Bray,) 2 Selw. N. P. 1120. 
 Rep. 247. Gunsione v. Downes. (3) 1 Leach, Cr. C. 151. 
 
 in) See .Note 81, p. 81. (o) See Kote 82, p- 84. (p) See Note 83, p. 85. 
 (?) See Note 84, p. 89.
 
 48 Oflht Mature of the Interest [Ch. 5. 
 
 the Court held, after tnuch argument, that another underwriter 
 was a competent witness. (1) Tliis case came hefore the Court 
 of King's Bench, hy writ of error fioiii the Court of Common Pleas; 
 a writ of error was afterwards hrought to reverse the judgment of 
 that court, (2) hut was at lengih abandoned. It has always been 
 considered a case of great authority, and deserves to be particularly 
 noticed, as it is one of the leading cases, which have established 
 the rule of evidence on this subject. The principal question in that 
 case was, whether a person, who had been employed as broker by 
 the plaintiff' in procuring the policy to be subscribed by the defend- 
 ant, and had afterwards himself subscribed the policy as assurer, 
 was a competent witness for the defendant. The Court adjudged 
 that he was competent; Lord Kenyon C. J., ISIr. Justice Buller, and 
 Mr. Justice Grose held, that he ought not to have been rejected, on 
 the broad and general ground, because he was. not interested in the 
 event; Mr. Justice Ashliurst, on a narrower ground, because the 
 witness stood in the particular situation of broker; and, having 
 made himself a party to the policy, he ought not to be allowed by 
 his own act to deprive either party of the benefit of his testimony. 
 The other judges also concurred in this opinion: but Lord Kenyon 
 C. J. declared, that the reason before mentioned was the principal 
 ground of his judgment. He said, " The objection is, that the wit- 
 ness was underwriter on the some policy. I must acknowledge, 
 that there have been various opinions upon this subject, and that 
 it is impossible to reconcile all the cases. Then we have only to 
 consider, what are the principles and good sense to be extracted 
 from them all. I think the principle is this: if the proceeding in 
 the cause cannot be used for him, he is a competent witness, al- 
 though he may entertain wishes upon that subject; for that only 
 goes to his credit, and not to his competency." 
 
 Vendor. The vendor of an estate, who has sold the inheritance without 
 
 any covenant for good title or warranty, is competent to prove 
 the title of the vendee, (^i) (r) In an action of trover for a horse, a 
 person who accepted the horse from the plaintiff as a security 
 for the payment of a sum of money, and afterwards on default 
 
 (1)3T. R. 27. Bull. N. P. 2S3, (2) 7 T. R. 604. 
 S. P. (3) Busby v. Greenslate, 1 Str. 446. 
 
 (r) Seo Note 85, p. 97. 
 
 I
 
 Sect. 1.] which disqualifies. 49 
 
 sold it to the defendant, is connpetent on the part of the defendant 
 to prove these facts, (1^ So also the witness is competent to prove, 
 that the goods, the subject-matter of the action, belonged to him- 
 self, and were obtained out of his possession fraudulently by the 
 plaintiff; (2) for in neither case can the verdict be used by the wit- 
 ness, or against him. (s) 
 
 In an action on a contract, by which the defendant engaged tf^ pa^t^e^r"' 
 •print for the plaintiff, on paper to be supplied by him, a certain num- 
 ber of copies of a work, and to cause the paper to be insured from 
 fire, while it remained in his possession ; one, who has purchased a 
 number of copies from the plaintiff, but was not privy to the con- 
 tract with the defendant, is a competent witness for the plaintiff, 
 to prove the contract.* (3) 
 
 In an action of covenant for the mismanagen)ent of a farm, the Sub-tenant, 
 sub-lessee of the defendant is competent to prove its jiroper cuhiva- 
 tion. (4) In an action by a reversioner for an injury done to the in- Reversioner, 
 heritance, his tenant in possession is competent to prove the injury 
 done by the defendant. (5) In an action on a policy of insur- Cnptaln of 
 ance, where the only question is concerning the original desti- ® ^^' 
 nation, of the ship, tlie captain is con)petent to give evidence 
 respecting that fact, though a part owner of the ship, and, as 
 such, liable to the owners of the goods, in case the ship had 
 unnecessarily deviated from the voyage ; but, if the question 
 turn on a deviation, he could not be examined. (G) In an action 
 
 (1) Nix V. CuUinj;, 4 Taunt. 18. (4) Wishavv v. Barnes, 1 Campb. N. 
 
 (2) Ward v. Will<inson, 4 Barn. & P. C. 341. 
 
 Aid. 410. The only point presented to (5) Doddington v. Hudson, 1 Bing. 
 
 the court, in this case, related to the 258. 8 Moore, 163, S C. 
 
 competency of the witness. (6) De Symonds v. De La Cour, 2 
 
 <3) Mawman v Giilet, 2 Taunt. New Rep. 374. 
 325. n. 
 
 * The principle which the Lord Chief Justice Man.<field appears to have deduced 
 from this case, and which was stated in a former edition of this work, seems to ba 
 \h\9., \.\ir\\. a dormant partner, not being one of the contracting parties, and who 
 has had no privity of communication with them in. the contract, is competent to 
 prove the contract. Bnt perhaps, on consideration, the case of iMawrnan v. Giilet, 
 may be ihouj^ht not to warrant such an cxti;nsive and general proposition. And 
 since it has been determined in ihe case of Skinner v. Stocks, 4 Barn ^c Aid. 437, 
 that an ostensible partner, who has made a contract, may join dormant partners with 
 himself as co-plaintifFs, it seems to bo justly observed, (in a new edition of Saund. 
 Rep. 291, j. n. h.) that a dormant partner, who is interested as such in the contract, 
 is not a competent witness for the plaintiff to prove the contract. 
 
 («) Sea Note 86. p. 92. 
 
 Vol. I. 7
 
 60 Of thelNature of the Interest [CIi. 5. 
 
 for falsely representing the circurnstances of a person who was 
 insolvent, and thereby inducing the plaintiff to give him credit, 
 that person is competent to prove his insolvency. (1) In these 
 cases, the witness neither gains nor loses directly by the event of 
 the verdict: nor would the verdict be evidence either for or against 
 him. 
 
 Influence of A witness is not incompetent on the ground, that the verdict 
 *" "^ * may afterwards come to the knowledge of a jury in an action 
 
 brought by the witness himself, and so have an influence on 
 their judgment, though not in evidence before them. Lord 
 Holt, indeed, in the case of the King v. Whiting, (2) on an in- 
 dictinent for a cheat in obtaining a person's subscription to a 
 note of 100/. instead of 5/., rejected the evidence of the maker 
 of the note; on the ground, that the verdict would be certainly 
 heard of, in an action on the note, to influence the jury. Tliis 
 decision was followed by Lord Hardvvicke C.J. in the case of 
 the King v. Nunez. (3) But afterwards, in the case of the 
 King v. Bray, (4) Lord Hardwicke reviewed his own opinion 
 and that of Lord Holt, and decided that the objection went only 
 to the credit and not to the competency of the witness; and 
 with respect to the possibility that the jury might hear of the 
 verdict, he said, that, sitting as judge, he could only hear of it 
 judicially. 
 
 Upon the same principle, in the case of the King v. Bos- 
 ton, (5) where it appeared that A. had brought an action against 
 B., (who filed a bill in equity for an injunction, and, afier answer 
 put in by A. denying the allegiitions in the bill, the injunction 
 
 Pnrfy injured vvas dissolved,) and A. was afterwards indicted for perj(u-y, alleg- 
 
 in proPL'culion ..... i i • ,• 
 
 for perjury. ^d to liave been committed m his answer, and the indictment came 
 
 on to be tried immediately before the action; the Court of King's 
 Bench determined, that B. was a competent witness in tlie prose- 
 cution, and had been properly admitted to give evidence on the 
 trial; as be could not avail himself of the conviction of A. in any 
 civil proceedings between them either in law or equity. 
 
 ' (!) Smith V. Harris, 2 Starkie, (3) 2 Str. 1043. 
 
 N. P. C. 47. (4) Rep temp. Hard. 858. 
 
 (2) 1 Salk. 283. £S^ 4 Ea«t. S72. 
 
 1
 
 Sect. l.J which disqualijies. 61 
 
 A person, who has borrowed money on an usurious transaction, Borrower, ia 
 is a competent witness for the plaintiff in an action for penahies '^"''^ ° usury, 
 against the lender; (1) and whether he has, or has not, repaid 
 the money lent, does not appear to make any essential difference, 
 at least so far as his competency is affected; *for in neither case 
 does he gain any thing immediately by the event of the suit, nor 
 can he give the judgment in evidence in an action against him for 
 the money lent, {t) 
 
 A witness, who has acted under a bare authority, is not to be Liability to 
 
 1 J I /■ ••!•..■ 1 .1 11^ information 
 
 excluded irom giving Ins testimony, merely on the ground that action 
 
 he may be liable to an informaiion or an action, in case the fact, 
 
 which he (tomes to prove, should be found otherwise. (2) Thus 
 
 persons, who have been themselves in office, are often called to 
 
 show what the usage is, and what they did when in office: yet 
 
 if their acts be illegal, they are liable to quo warranto. If 
 
 persons were not allowed to be competent witnesses, in matters 
 
 belonging to corporations, because they may possibly be punished 
 
 by information, much good evidence would be shut out. Where- 
 
 ever any unlawful act is done in a corporate assembly, the whole 
 
 assembly are liable to an information; yet the persons, who were 
 
 present at such assemblies, are always allowed to be good wit- 
 
 (1) Abrahams q. t." v.Bunn, 4 Burr, cited 4 Burr. 2254. See Carpenters' 
 2251. Snjjlli V. Prager, 7 T. R. 60. Company, &c. v. Hayward, 1 Doug. 
 See Masters q. t. v. Drayton, 2 T- K. 374 ; in which case the witness was 
 496. propel ly rejected, on the ground that 
 
 (2) R. V. Brny, Rep. temp. Hard, 'he verdict would have been evidence 
 860. 2 Sehv. N. P. 1120, S. C. 2 against him, as to a right claimed by 
 Str- 1069, S. P. Bailie v. Wilson, custom. 
 
 • In the case of Smith q. t. v Frager, the witness said he had repaid the princi- 
 pal sum and interest by drafts, which had been duly honoured, and that he was 
 still indebted to the defendant on a running account for this and other loans. It 
 may be observed, that at the time of the tiial, the witness was an uncertificated 
 bankrupt; but this was not considered as furnishing any objection. (The case of 
 Masters q. t. v. Drayton, therefore, in 2 T. R- 496, seems to be over-ruled- See al- 
 so Ridley v. Taylor, 13 East, 175.) In the first case above cited, of Abrahams q. 
 t. V. Bunn, the witness proved, tliHt he had redeetned the pledges and repaid tha 
 principal sum, and he was compptenl to prove that fact. Lord Mansfield ia report- 
 ed to have said, "that if the defendant had produced a security, or proved the 
 pledge to be remaining in his custody, it would liave been a different consideration, 
 whether the witness, who was the borrower of the money, could be examined to 
 contradict this." However, it may be inferred from the case of Jordaine v. Lasb- 
 brooke, which has been before mentioned, that this consideration would not now 
 affect the competency of the v^'itness. 
 
 (0 See Note S7, p. 92.
 
 52 
 
 Of the Nature of the Interest 
 
 [Ch. 5. 
 
 nesses ; and if they were not allowed, there would be no evidence 
 at all as to such facts. (1) 
 Bond-security In an action against an administrator, one of the bond-securities 
 
 for adniinistra- ^^^ ^j^^ defendant's due administration of the intestate's effects is a 
 
 tor. 
 
 competent witness, on behalf of the defendant, to prove a ten- 
 der; (2) the Court said, the bare possibility of an action being 
 brought against a witness is no objection to his competency, and 
 that a creditor of the defendant would also have been competent 
 which they considered a stronger case; and Mr. Justice BuUer 
 said, " In order co show a witness interested, it is necessary to prove 
 that he must derive certain benefit from the determination of the 
 cause one way or the other, (u) In this case, supposing there 
 were no assets, though the defendant would be answerable for the 
 costs, he would not be liable on his bond to the Ecclesiastical 
 Court. He is only bound to distribute the intestate's effects, and 
 it does not appear in this case how they have been applied." 
 
 Executor. 
 
 Trustee 
 Agent. 
 
 A witness may prove a codicil made subsequent to a second 
 will, and reviving a former will, though he has acted under the first 
 will, and might be liable to actions as executor de son tort, if it 
 should be set aside. (3) Indeed, it may be laid down as a general 
 rule, that executors in trust, trustees, and agents, are not incompe- 
 tent merely on the ground of their liability to actions. (4) {v) If 
 a trustee takes a beneficial interest, that is another ground of ob- 
 jection ; but without such an interest, trustees and executors are 
 competent witnesses. (5) {lo) 
 
 Interest on 
 both sides. 
 
 If the witness has an interest inclining him lo each of the par- 
 ties, so as upon the whole to make him indifferent, he will be com- 
 petent to give evidence for either party. Cases of this descrip- 
 tion will be mentioned after vvards in their place. 
 
 (1) By Lord Hardwicke C J. R. v. 
 Gray (or Bray,) 2 Selw. N. P. 1120. 
 
 (2) Carter v. Pearce, 1 T. R. 163. 
 
 (3) Baillie v. Wilson, cited 4 Burr. 
 2254. Goodtitle d. Fowler v- VVel- 
 ford, 1 Doug. 140. 
 
 (4J 1 Mod. Rep. 107, Goss v. Tra- 
 cy, 1 P. VVnis. 2S7. 1 Black. Rep. 
 366. Gilb. Ev. 123. 
 
 (5) Goodtitle dem. Fowler v. Wel- 
 ford, 1 Doug. 140 Bettison v. Brom- 
 ley, 12 East, 250. Heath v. Hall, 
 4 Taunt. 32S. Phipps v. Pitcher, 
 6 Taunt. 220. 2 Marshall, 20, S. C. 
 See 1 Ball and Beatty's Rep. 100, 
 414, and cases there cited, aa to the 
 rule in equity. 
 
 (u) See Note 83, p. 92- («) See Note 89, p. 96. (w) See Note 90, p. 98.
 
 Sect. 1.] which/ disqualifies. 55 
 
 In the cases which have been menlioned, the objection against Witness be- 
 
 , . 1 r 1 • r 1 • - J' _ licvine himself 
 
 the witness was, that either from the circumstance ol his standing j„terested, 
 
 in the same situanon as the party for whom he was called, or be- 
 cause the verdict might possibly influence the jury in a cause in 
 which he himself might be a parly, or from some other reason of 
 the same kind, he expected a bentfit from the result of the suit. 
 The witness in those cases would probably have admitted, that he 
 believed himself interested; and it was upon the supposition of 
 this fact, that the objection must have been founded. Those cas- 
 es, therefore, in which such objections were overruled, appear to 
 have determined this point, that a witness will not be incompetent 
 merely on the ground of his believing himself interested. It is 
 true, if he believes himself interested, tlie impression on his mind, 
 and his bias in favor of the party calling him, may be as strong as 
 if he were legally incompetent. But the difference is, that, in 
 the one case, the enquiry is more simple and more easily defined; 
 in the other, it is complicated, vague, and uncertain. For the pur- 
 pose of determining liiat a witness is incompetent on account ol his 
 believing himself interested, it might be necessary to examine him 
 on a great variety of points, which alter all would be more proper 
 for the consideration of the jury; as, for example, on the nature 
 of the benefit which he expects, the reasons for his expecting it, 
 and the impression which such an expectation may have produced 
 upon his mind. Such an enquiry v\ould in all cases be extremely 
 indefinite, and would be subject to this great inconvenience, that it 
 might lead to the rejection of a witness, who, on further examina- 
 tion, might appear to deserve the highest credit, and might have it 
 in his power to give important evidence, [x) 
 
 The rule of law respecting interested witnesses is perhaps the 
 best that could be adopted, because it is the least exclusive, and 
 most accurately defined. It excludes such only as have an inte- 
 rest in the event of the suit; not, that in all cases they are likely 
 to feel a stronger bias than persons, who may perhaps expect 
 some benefit from the event, or may be friends or relations to 
 the party, and yet are not on that account incompetent; but the 
 kind of interest, which is marked out as the cause of incompe- 
 tency, is injgeneral more direct and immediate, and more easily 
 
 (X) St» Note 91, p. 9S.
 
 54 Of the Nature of the Interest [C!i. 5. 
 
 ascertained. It lias been held, ilierefore, that a witness is not in- 
 
 Honorarj competent, who believes himself under an oblisiation of honor to 
 obligation. . .- . . . 
 
 inden)nify the bail, unless he has in fact entered into an engage- 
 ment to th.U eflect. (1) Snch an obligation is in general of a na- 
 ture so uncertain and variable, that it cannot safely be recognized 
 in courts of justice, as a motive of conduct. Besides, where the 
 sense of honor is so strong and binding as to influence him against 
 his interest, it must be unnecessary to reject the witness; as the 
 same principle, which would induce him to pay the costs, would 
 oblige him, in giving his evidence, to speak only the truth; and, in 
 cases where the sense of honor is less firm and imperative, the 
 ground of the objection fails, since the wit:iess is not bound in point 
 of law, and does not feel himself absolutely bound in point of mor- 
 als. But, independent of tliis reasoning, another more general an- 
 swer is, that the ends of justice are most effectually attained by a 
 full and complete investigation of the subject in dispute; and, un- 
 less the objection to the witness is sti'ictly a legal ol)jec(ion, he will 
 be admitted to give evidence. In the case supposed, of a witness 
 who says he thinks himself bound in honor to pay the costs, it 
 might be injurious to the party who calls him, to be deprived of his 
 testimony on account of such a fannied obligation; more especially, 
 as it is an obligation which may easily be pretended by the witness, 
 but which it is scarcely possible for the court justly to appreciate, 
 and which, from the nature of the case, the party cannot release, 
 nor enforce against the witness; on the other hand, his testimony 
 may not deserve all the credit due to a witness free from bias, and 
 it ought therefore to be strictly examined and sifted. The witness, 
 then, is to be heard, but his evidence is open to observation. (2)(?/). 
 
 II. Secondly, having shown what is not such an interest in 
 
 (1) Peder3on v. Stofflas, 1 Campb. 1 Str. 129, cited and approved by Ld. 
 145, S. P. said to have bsen ruled Loughborougii C. J. and by Gould J. 
 contra, in an old case, by Parker <". in Trelawney v. Thonns, I H. Bl. 307, 
 J.; see Fotheringham v. Greenwood, 1 S. P. by Peiryn B. in Newland's caae, 
 Btr. 129. 1 Leach Cr. C. 333. And see a case 
 
 (2) There are several dicta in sup- tried before Lord Mansfield, cited by 
 port of the position, that a witness is counsel in Rudd's case, L3ach Cr. C. 
 not competent, if he bglieves himself 154. See also the case of the Amilie, 
 interested, whether he is or is not in- Villeneuve, 5 Robinson, Adm. Rep. 
 t«reat«d in strictness of law. By Pratt .344, n. ; and the case of the Galen, 
 C. J- in Fotharinibam v. Greenwood, 2 Dodson, Adm. Rep. 20. 
 
 (y) See Note 92, p. 99.
 
 Sect. 1.] which disqualifies. 65 
 
 the event of the suit, as will disqualify a witness from giving evi- 
 dence, we now proceed to enquire, what is such an interest as will 
 disqualify. 
 
 On the subject of interested witnesses, Ch. B. Gilbert lays down General rult. 
 the rule thus: " The law looks upon a witness as interested, where 
 there is a certain bfenefit or disadvantage to the witness, attending 
 the consequence of the cause one way." (1) Mr. Justice Buller 
 adopts the same rule. (2) And, in the case of the King v. Prosser, 
 where the question was, whether on an appeal against a rale, pa- 
 rishioners, who had rateable property hut were not actually rated, 
 were competent wiuiesses in support of the rate, the same learned 
 judge expressed hiujself thus: " I take the rule to be this; if the 
 witness can derive no benefit from the cause before the court, he is 
 competent." (3) In the case of Smith v. Prager (4) Lorci Kenyon 
 said, " the case of Bent v. Haker (5) laid down a clear and certain 
 rule, by which I have ever since endeavoured to regulate my opin- 
 ion. The rule, tliere laid down^ was, tliat no objection could be 
 made to the com[)etency of a witness upon the ground of interest, 
 unless he were directly interested in the event of the suit, or could 
 avail himself of the verdict in the cause, so as to give it in evidence 
 on any future occasion in support of his own interest." The same 
 rule was ap[)roved and adopted in the case of King v. Boston; (6) 
 and in iTiany later cases has been expressly referred to, as the great 
 heading principle on this subject.* (z) 
 
 The general rule, then, is, that if the verdict can be used in 
 evidence against the witness, in case the parly, for whom he is 
 called, should fail in the action, — or, if the witness can avail 
 himself of the verdict, so as to give it in evidence in support of 
 
 (1) Gi!b. Ev. 106, 7. (4) 7 T. R. 62. 
 
 (2) Bull. N P. 284. 3 T. R. 36. (5) 3 T. R. 27. 
 
 (3) 4 T. R. 17. (6) 4 East, 532. 
 
 * The law of Scotland is not so strict on this subject. The general rule, in the 
 Scotch (^urts of Justice, is, that no interest in the issue of a cause shall be held to 
 disqualify a witness, (whatever effect it may have on his credibility,) unless it is not 
 only a direct and immediate interest, but one which at the same time flows from 
 some undue and corrupt interference on the part of the witness. See Burnett's 
 Treatise on the Criminal Law of Scotland, p. 440. 
 
 (z) S«e Note 98, p. 99.
 
 56 
 
 Of the Nature of the Interest 
 
 [Ch. 5. 
 
 Servant. 
 
 Broker. 
 Agent- 
 
 Tenant in 
 possession. 
 
 his own claims, that this is a direct and immediate interest in ilie 
 event of the suit, which will render him incompetent. (I) 
 
 1. When the verdict can he used in evidence against the wit- 
 ness, (a) 
 
 In an action against a master for the negligence of his servant, 
 the servant is not a competent witness to disprove his own negh- 
 gence; for the verdict may be given in evidence in a subsequent 
 action by the master against the servant, as to the quantum of the 
 damages, though not as to the fact of the injury. (2) (6) A bro- 
 ker is not competent, (or the same leason, in an action against the 
 principal, to disprove the negligence of the defendant in the course 
 of iiis employment. (3) 
 
 In an action of ejectment, the tenant in possession, upon whom 
 an ejectment has been served, is not a competent witness in support 
 of the title of tire defendant, under wiiom he holds; for he is liable 
 to the mesne pro6ts, and the verdict in ejectment would be evi- 
 dence against him in an action to recover them. (4) (c) 
 
 Landlord. In an action against a sberitF for a false return to a writ of fieri 
 
 facias, in which return l)e stated that he had paid a sum of money to 
 the landlord of the premises for arrears of rent, the landlord is not 
 competent to prove liie rent due; for if this action were to succeed, 
 the witness would be liable to an action at the suit of the sheriff, in 
 which the judgment in this case would be evidence of special 
 damages. (5) 
 
 2. When the verdict may be used by the witness in support of 
 his own claims, (d) 
 
 Where a right of common is claimed by custom, one, who 
 
 (1) 3 T. R. 32, 33, 36. 7 T. R. G2. 
 A East, 582. 
 
 (2) Green v. New Riv. Company, 
 4 T. R. 589. Martin v. Henricksoii, 
 2 Ld. Raym. 1007. Miller v. Fal- 
 coner, 1 Campb. 251. 15 East, 474, 
 8 Cainpb. 516. Rolheroe v Elton, 
 Peake, N. P. C. p. 84, stated in vol. 2. 
 Morish V. Foote, 2 Moore, C. P. 508. 
 8 Taunt. 454, S. C. Tiie competency 
 
 and incompetency of servants, bro- 
 kers, fictors, and agents, is consider- 
 ed more fully in Ch. V. infra. 
 
 (3) Gevers v. Maimvnring, Holt, 
 N. P. C, 139. Vide infra, Ch. V. 
 
 (4) Bourne v- Turner, 1 Str. 632. 
 Doe dem. Foster v. Williams, Cowp. 
 621. 
 
 (5) Keighliey v. Birch, 3 Campb. 
 521. 
 
 («) See Note 94, p. 106. (b) S«e Note 95, p. 106. (c) See Note 96, p. 107. 
 {4 ) S— Note 97, p. 107. 
 
 I
 
 Sect. I.] which dLsqualijies, 67 
 
 claims under ihe same custoiu, cannoi be a witness in support of ^°'"'"°"^''^ 
 
 II- 1 • I . r 1 I ..... and persons 
 
 the cJann, as lie might alierwards use tlie verdict m Ins own cause claiming un- 
 to establish a similar customary right for himself. (1) (e) So where ^^'" '="^'<""- 
 in an action on the case against the defendant for not repairing his 
 fences contiguous to a common, (on. which common the plaintiff 
 prescribed for cotnmon appurtenant,) one of ihe points in issue 
 was, whether the defendant was liable to repair by reason of his 
 occupation, it has been delei mined, that other persons, who claim- 
 ed a right of pasture over the same conunon, were not competent 
 witnesses for the plaintiff; (2) the Court said, the record would be 
 evidence for another conunoner, that the occupier of the adjacent 
 land was bound to repair this f( nee ; and though the [)laintif?' in 
 that case claimed a right of common by prescription in right of a 
 particular messuage, still the other conunoners, by whatever title 
 they might clairn, would have a common inteiest in casting the 
 burthen of the repair of this individual fence upon the occupier of 
 the adjacent land. So, where the question i.<, whether in a partic- 
 ular parish or vill, certain things are generally exempted from 
 tithes, or subject only to a modus, no person who would be subject Modus, 
 to tithes, if the parson's claim were to be allowed, can give evi- 
 dence in support of the modus or exemption. (3) So, where a Customary 
 defendant in an action of trespass justifies under a custom in the ^"^^' '"S • 
 parish for out-going tenants to take the away-going crop, he cannot 
 call as witness an occupier of land, who insists upon the same 
 right for himself. 
 
 " It is no good objection to a witness," says Ch. B. Gilbert, (4) Common by 
 " that he has common by cause of vicinage in the lands in ques- '^''^'"^8®" 
 tion, for this is no interest in the land, but only an excuse for 
 trespass ; and let who will recover the lands, the whole right of 
 common remains, so that he is certainly indifferent in point of 
 interest between the two contenders." However, this position 
 may perhaps be doubted, as the rule is now clearly established, 
 that a witness, who can use the verdict in an action brought 
 either by or against himself, is not c;)inpetent ; and since com- 
 
 (1) 1 T. R. 302. 8 T. R. 32. Bull. (3) Ld. Clanricard v. Lady Denton 
 N- P. 283. Hockley v. Lamb, 1 Ld. 1 Gwill. 360. Gilb. Ev. 113. 
 
 Kaym. 731. (4) Gilb. Ev. 109. 
 
 (2) Anscomb v. Shore, 1 Taunt. 
 261. 
 
 (c) See Nolo 9S, p. 108. 
 
 Vol. I. 8
 
 58 
 
 Of ihe Nature of the Interest 
 
 [Ch. 5. 
 
 nion by cause of vicinage is in the nature of common appendant, 
 and implies immemorial usage of intercommoning, it is presumed, 
 that a verdict, finding the existence of such an usage, would be ev- 
 idence for the witness, if he were to justify under the same usage 
 in an action of trespass. It may be observed that Ch. B. Gilbeit 
 does not once mention the power of using the verdict, as a criterion 
 for determining, whether the witness is incompetent ; so undefin- 
 ed, at that tin)e, was the rule of evidence on this subject. (/) 
 
 Customary 
 charge. 
 
 Custom as to 
 trade. 
 
 Custom. 
 
 Prescriptive 
 right. 
 
 On the trial of an issue, whether the owners of property within a 
 chapelry are liable by immemorial usage to a charge of repairing 
 the chapel, an owner of property within the chapelry is not a com- 
 petent witness to disprove the liability, though his property is in 
 the occupation of a tenant, who agrees to pay rent without any de- 
 duction : for he is immediately interested in removing such a per- 
 manent charge, and thus improving the value of his estate. (1) And 
 in an action against the defendant for exercising a trade in breach 
 of a custom, which, as was alleged in the declaration, confined that 
 and other trades to the members of a corporate company, a wit- 
 ness who claims for himself a right to exercise a trade, though not 
 a member, is not competent to negative the existence of such a 
 custom ; for he is interested, that the defendant should have a 
 verdict, which he may use in his own defence, in case a similar 
 action should be brought against himself. (2) 
 
 Where, indeed, the issue does not affect any customary right, 
 but is merely on a right of common claimed by prescription, as be- 
 longing to the estate of A., one who claims a prescriptive right of 
 common in right of his own estate may be a witness ; (3) for though 
 A. may have such a right of common, it does not follow that B. 
 has, nor would the verdict in the action of A. be evidence in B.'s 
 action. 
 
 3. Incompetency from liability to costs. 
 
 (1) Rhodes v. Ainswortlj, 1 Barn. (3) Harvey v. Collison, MS. case, 
 & Aid. 87. See Meredith v. Gilpin, stated 1 Sehv. N. P. 1 T. R. 302. 
 infra. Bull. iN. P. 283. 
 
 (2) Comp of Carpenters in Shrews- 
 bury V. Hay ward, 2 Doug 373. 
 
 (/) See Note 99, p. 109.
 
 S(3ct. 1.] which, (Unqualifies. 59 
 
 Persons liable lo the costs of the action have a direct and irnme- Liability to 
 
 costs, 
 diate interest in the event, and therefore are not competent witnes- 
 ses for the party to whom they wonld be so liable, (g) Thus the Rail, 
 defendant's hail are not competent togive evidence for their princi- 
 pal, (1) because they are immediately answerable in case of a ver- 
 dict against the defendant, (/i) 
 
 For the same reason, a co-defendant cannot be examined as wit- Party. 
 ness for another defendant, though he is a formal party merely, 
 and has no interest in the cause. (2) A party to the suit, of all 
 persons, has the strongest interest in the event of the cause. This 
 will be the subject of a subsequent section. (3) • 
 
 In an action against the sheriff for a false return, the sheriff's Sheriff's offi- 
 officer, who has given security for the due execution of process, is 
 not a competent witness, to prove that hs endeavored to make the 
 arrest. (4)(i) So, in an action by an infant plaintifF, his prochein Procheia amy. 
 amy and guardian are not competent witnesses for him, being lia- 
 ble lo costs. (5) (j) 
 
 One in partnership with the defendant is not a competent wit- Partner, 
 ness for the defendant, to discharge a debt to which as partner he 
 would be jointly liable. In an action of assumpsit for goods sold 
 and delivered, the plaintiff having proved the sale of the goods to 
 the defendant and to one J. S., who were partners in trade, Lord 
 Kenyon held that J. S. could not be a witness for the defendant, lo 
 prove that the goods were sold to himself, and that the defendant 
 was not concerned in the purchase except as his servant; for by 
 discharging the defendant he benefits himself, as he would be liable 
 to contribute and pay a share of the costs which the plaintiff seeks 
 lo recover. (6) 
 
 And a partner is not a competent witness for the defendant lo 
 prove that the delivery was on the |)artnership account, and that 
 
 (1) I T. R. 164. Piesley v. Voii (5) Jamea v. Hatfield, 1 Sir. 548. 
 Each, 2 Esp. N. P. 606. Hopkins v. Neal, 2 Str. 1026. Gilb. 
 
 (2) Dixon V. Parker, 2 Vcs. 2!9, Ev. 107. Head v. Head, 3 Atk. 511, 
 and other cases cited in 13 Price, 512. 547. See 1 Cox's Cases in Chan. 
 
 (3) See sect. 2 of this chap. 236, 
 
 (4) Powell V. Hord, 2 Ld. [{ayin. (6) Goodacre v. Breanie, Peake, 
 1411. 1 Sir. 650, S. C. 3 Campb. N. P. C. 174. 
 
 633. 
 
 ig) See Note 100, p. 109. (ft) See Note 101, p. 10'). (i) See Note 102, p. 110. 
 (J) See Note 103, p. 110.
 
 60 Of the Nature of the Interest [Ch. 5. 
 
 Liability to the goods Iiad been paid for. (1) So a partner is not competent 
 
 costs. 
 
 for the defendant, to prove his joint liabiHly with the defendant, 
 in support of a plea in abatement. (2) This is an interest which 
 the defendant cannot effectually remove by a release to the witness; 
 (3) for though the release might be a bar to a suit for contribution 
 between the defendant and the witness, yet nevertheless, if the de- 
 fendant wee to (lie or become insolvent, the plaintiff would have 
 a right, by a Itill in equity, to compel nil the parties to contribute, 
 and in this suit the witness would still he liable to his share. (4) (fc) 
 
 In the cases above mentioned the witness would have been 
 competent for the plaintiff, though incompetent for the defendant. 
 In assumpsit for goods sold and delivered, and the general issue 
 pleaded, a partner was called on the part of the plaintiff, to 
 prove that the defeiidant had a share in the concern jointly with 
 himself; and the court of King's Bench held, that he had been 
 properly admilted; for his interest would rather incline him 
 against the plaintiff, since, in case of his gaining a verdict, he 
 Avould be liable to contribute at the suit of the defendant. (5) 
 It was argued, that the witness was interested to fix the defend- 
 ant with a part of the debt, as otherwise he might himself be 
 made liable to pay the whole, '{'he answer to this is, that tlie 
 defendant would have a light to recover from the witness, in an 
 action at law for money paid to his use, the whole sum recovered 
 in this action, if he should shew that the witness was originally 
 liable to pay it. The case of Hudson against Robinson, (C) 
 4 Maule and Selw. 476, stated infra, is another instance, to shew 
 the competency of a partner of the defendant, as witness for tlie 
 plaintiff. 
 
 In an action by an indorsee against an indorser of a hill of 
 exchange, a witness who is indebted to the plaintiti", and for whom 
 
 (1) Evans v. Ye.itlierd, 2 Bing. 133. (4) By Loid Alvanley, in Cheyne 
 Cheyne v. Koops, 4 Esp. 112. v Keeps, 4 Esp. 112. In this case a 
 
 (2) Young V. Bairnes, 1 Esp. 103. release was pioposed from the defend- 
 He would have been competent for ant to the witness, and also from the 
 the plaintiff. Cosham v. Goldney, witness to the defendant. 
 
 2 Stark. N. P. C. 414 (5) Btackett v. Weir, 5 Barn. .^: 
 
 (3) Temins v. Smith, l)y Ld. Ten- Cres. 385. 
 
 terden C. J., 1 Ry. & ?,Io. 29. Cheyno (6) By Holroyd J. and Littledale J , 
 V. Koops, 4 Esp. 112. p. 388. 
 
 (/O See Note 104, p. 111.
 
 Sect. ].] whidi disqualifies. (>I 
 
 the defendant indorsed the bill as security for the debt, is not com- Liability to 
 petent for the defendant: being liable to him for the costs of the 
 action. (1) 
 
 Tn an action by an indorsee against the acceptor of a bill, which Drawer of 
 
 11. ifi 1- rii wj accommoda- 
 
 had been accepted for the accommodation ot the drawer, the draw- ^^^^ i^in 
 er is not a competent witness for the defendant, to prove that the 
 liolder took the bill for an usurious consideration. This was de- 
 termined in the case of Jones v. Brooke. (2) The Court of Com- 
 mon Pleas there held, that the witness u as interested to defeat the 
 action; for, if the holder should succeed against the acceptor, the 
 acceptor would not only have a right of action against the drawer 
 for the principal sum, but also for all damages, which as acceptor 
 he might sustain in being sued upon the bill; the drawer of an 
 accommodation bill being bound to indemnify the acceptor against 
 the consequences of his acceptance for his accommodation. *(/) 
 
 In an action by an indorsee against the maker of a promissory 
 note, the payee and indorser, who has become bnnkrupi since the Payee and 
 date of the note, and has obtained liis ceriificale, is not competent 
 on the part of the defendant, to prove that the note was an accom- 
 modation note, and indorsed to the plaintiff' after it became due; 
 for, having obtained his certificate, he is no longer liable to the 
 plaintiff" on his indorsement, but he will be liable to the defendant, 
 if the defendant should be obliged by this action to pay the prom- 
 issory note, which he had given for the witness' accommodation. (3) 
 
 (1) Bottomley v. Wilson, 3 Stark. (3) Maundrell v: Kennett, 1 Campb. 
 N. P. C. 148. N. P. C. 40S before Biiylcy J. 
 
 (2) 4TauDt. 464. 
 
 *In the case of Birt v. Kirshaw, 2 East, 45S, the Court of King's Bench held, 
 hat the endorser of a note, who had received money from the drawer to take it up, 
 was a competent witness, in an action by the endorsee against the drawer, to prove 
 on the part of the defendant, that he had satisfied the note; since he would be lia- 
 ble on the note to the plaintiff, if the defendant succeeded, or to the defendant in an 
 action for money had and received, if the plaintiif succeeded; and the Court was of 
 opinion that the witness was not rendered incompetent by the circumstance of his 
 being also liable to the defendant, in the laiter case, for the costs of this action in 
 consequence of his non-payment. But this decision is inconsistent with later au- 
 thorities. The liability to the costs of the action, as appears from several cases 
 
 (Z) See Note 105, p. 113.
 
 ^2 Of the Nature of the Interest [Cli. 5. 
 
 Liability to "All agent of one of the nnriies (o the suit is not a competent wit- 
 
 ness, It, m case of the vcr(hct being against the parly for whom he 
 
 ""^"^ is called, he woiikl bo liable to him for the costs of tho action. Tn 
 
 Agent to clis- an action on a bill of exchange against the drawer, where the 
 count a bill. • . , , \ -w^ , , c , • • i i i 
 
 (jtjestion was, wheihcr the bni, as the delendant maintanied, had 
 been delivei-ed by one A. B. to the plaintiff to be discounted, or 
 whether it had been delivered in payment for goods, which A. B. 
 had bought of the plaintiff, Ch. Jnst. Gibbs held that A. 15. was not 
 a competent witness for the defendant, to prove the former of these 
 facts; for if A. B. had received the bill merely to get it discouiiled, 
 and, instead of doing so, if he pledged it for his own debt, he would 
 be liable for the costs of this action, as special damage resulting 
 from his breach of duly. (1) (m) 
 
 Agent for re- Jn an action of assumpsit, a person who has received inoney due 
 ceiving money. i . r i i i • -n- • ■ c 
 
 Irom the deiendanl to the plaintilr, is not a competent witness lor 
 
 the defenrlant (according to what is now understood to be the rule,) 
 jto prove that he received the money from the defendant, as agent 
 for the plaintiff: for though he is liable to pay the money received 
 or to refund it to the defendant, he is liable also to the defendant 
 for the costs of the action, in case the plaintiff should have a ver- 
 dict. (2) 
 
 Co-obligor. 
 
 In an action on a joint and several bond against one of the obli- 
 gors, who was surety for another, that other obligor (tiie principal) 
 is not competent for the defendant, to prove a payment of money 
 by himself in discharge of the bond: for he has an interest in favor 
 of his surety to the extent of the costs of the action. (3) (n) 
 
 (1) Ilarman v. Lasbrey, Holt, N. (3) Townend v. Downing, 14 East, 
 P. C. 390, by Gibbs, C. J. 565. See also Trelavvney v. Thomas, 
 
 (2) In Ilderton v. Atkinson, 7 T. R. 1 H. Bl. 306. And Ball v. BostocU 
 480, the witness was thought to be 1 Str. 575, as to competency from lia- 
 conipetent for the defendant. But see bility to costs, 
 
 Jones V. Brooke, supra, p. 61, and 14 
 East, 567. 
 
 here mentioned, is a substantial objectiou to the competency of a witness; and 
 however indifferent he may be in other respects towards either party, yet, if he has 
 incurred such a liability, he has an immediate and direct interest in the event of the 
 sait. 
 
 (tw) See Note 106, p. 113. («) See Note 107, p. 113>
 
 Sect. ].] ivhich disquulijies. ^>-^ 
 
 4. Other direct interest in the event of the suit. 
 
 - , Benefit or loss 
 
 A certain, direct, and immediate uiterest will disquahiy, al- depending on 
 
 though it may happen that the verdict in the cause cannot be ^^^ *^^'^°^- 
 evidence, either for or against the witness, in any future suit 
 concerning that interest. " The law," says Ch. Baron Gilbert, 
 " looks upon a witness as interested, when there is a certain benefit 
 or disadvantage to the witness, attending the consequence of the 
 cause one viay." (1) The following examples may be cited to il- 
 lustrate this general rule. 
 
 A person who has deposited in the hands of a sheriff, in lieu of 
 bail, a suai of money, which by rule of court is made to abide the 
 event of the suit, is not competent for the defendant. (2) 
 
 In an action by an executrix to recover a debt due to the testa- Kes'fJ""''^ 
 
 ... legatee, 
 
 tor, a re-iduary legatee has an interest, in favour of the plantiff, 
 
 even after releasing all claim to the debt in question: for though 
 the plaintiff' woidd not be liable as executrix, for costs to the de- 
 fendant, she must pay costs to her own attorney, and then she 
 would be entitled to be allowed out of the estate, and thus the resi- 
 due, in whicli tlie witness is interested, would be diminished. (3)(o)' 
 
 In assumpsit on a policy of insurance, when the declaration 
 averred that the policy was made in the names of the plaintiffs as 
 iigcnis, for the sole use and benefit of A. and B., who were interest- 
 ed in the goods, A. is not a competent witness for the plaintiffs, be- 
 ing liable to the attorney employed to bring the action. (4). 
 
 If a plaintiff agree with a witness, that, in case he recover the Agreement for 
 lands, he will grant him a lease of them for so many years, this ^"^^* 
 excludes his evidence; for the witness would have a fixed and 
 certain advantage by the event of the verdict. (5) {p) So a vjritness 
 
 (1) Gilb Ev. 106. Bull. N. P. 284. (4) Bell v. Smith and others, ia 
 3 T. R. 36. error, 5 Barn. & Cress. 188. 
 
 (2) Lacon v. Higgins, 3 Stark. N. (5) Gilb. Ev. 108. 
 P. C. 182. 
 
 (3) Baker v. Tyrwhitt, 4 Campb. 
 21. 
 
 (0) See Not« 108, p. 114. (p) See Note 109, p. 119.
 
 tJ-i Of the Nature of the. Interest [Cli. 5. 
 
 lias been rejected, ulio if the plaintiff failed in the action was to 
 repay a sum of money in his hands belonging to the plaintiff", but 
 was not 10 repay any part of it, if the plaintiff" succeeded. (1) [q] 
 
 irndervvnicrs I,i (li(> q^^q q[ Forrester V. Pitrou, (2) an action on a policy of in- 
 
 paviiig cou- , o ' V / I J 
 
 diiionally. surance, where the defendant called another underwriter, as wit- 
 ness, who in his examination on the voire dire said, he had paid 
 the loss to the phiiniift' upon an undertaking, that he was to be repaid 
 in the event of this action failing, and that he had since received a 
 letter from the plaintiff promising to return the money on that 
 event. Lord Ellenborough C. J. on the trial rejected the witness. 
 On a motion afterwards for a new trial on account of this rejection, 
 the Court sent the case to be retried, for the purpose of ascertaining 
 more particularly the tinie when the undertaking was made to the 
 witness; but on that occasion Lord Ellenborough said, " If a per- 
 son, who is under no obHgaiion to become a witness for either of 
 the parties to tlie suit, choose to pay his debt beforehand, upon a 
 condition that it is to be determined by the event of that suit, he 
 becomes as much interested in the event, as if he were a party to 
 a consolidation rule." 
 
 Witness Yn an action of trespass ae^inst a sheriff', where the question was, 
 
 discharging his i o .... 
 
 owndebt,wiih whether goods, which had been taken by hmi in execution in a 
 qies"ii^°n.' '" suit against A. B., belonging to A. B. or to the plaintiff", A. B. was 
 not allowed to be a witness for tlie defendant to prove tlie goods his 
 property; for the effect of Iiis evidence would be to pay his own 
 debts with the plaintiff' 's goods. (3) (r) Upon the same principle, 
 in an action of replevin, in which the defendant made cognizance 
 as bailiff" of A. B., for rent due from the plaintiff to A. B., and the 
 question was, whether the plaintiff", who was under-tenant to A. 
 B., was liable to pay the rent mentioned in the declaration, or a 
 less rent, the Court of Common Pleas held, that A. B. was not a 
 competent witness on the part of the defendant, to prove that the 
 plaintiff had agreed to pay him the higher rent mentioned in the 
 declaration. (4) 
 
 (1) Fotheringham v. Greenwood, 331. Upton v. Curtis, 1 Bing. 210. 
 1 Str. 129. 8 Moore, 52, S. C. 
 
 (2) 1 Made & Selw. 9. (4) Upton v. Curtis, 1 Bing. 210. 
 
 (3) Bland v. Ansley, 2 New Rep. 
 
 {q) See Note 110, p. 119. (r) See Note lU, p. 120
 
 Sect. 1.] which (iisqualijies. G5 
 
 A devisee, who takes a vested interest under a uill in the testa- DeVisee. 
 
 tor's estate, has been considered incompetent to prove his sanity, or 
 
 the due execution of the will, in an action of ejectment brought by 
 
 another devisee against the heir-at-law.* x\n executor, wiio takes Executor. 
 
 a pecuniary interest in a will, is competent on a question of sanity 
 
 in an action of ejectment; for the verdict would not be evidence in 
 
 the ecclesiastical court, as to the personality. (1) And upon the 
 
 same principle, a legatee seems also to be competent in such a case. Legatee. 
 
 An heir-apparent is a competent witness concerning the title of the ^^''■• 
 
 land; for the heirship is a mere contingency: but a remainder-man Remainder- 
 
 ' ' . . . man. 
 
 is not competent on such a subject, having a vested estate in the 
 
 land. (2) (s) 
 
 In an action of ejectment, where the plaintiff had made out a poggggsion in 
 prima facie case against the defendant as tenant in possession, the ejectment. 
 Court of Common Pleas held, that a witness, called on the part of 
 the defendant, was not competent to prove himself the real tenant, 
 and that the defendant was only his bailiff; for the verdict would 
 have the effect of turning him out immediately; it was, therefore, 
 an immediate interest, and out-weighed the remoter effect of his 
 subjecting himself by his testimony to an action of ejectment and 
 trespass for mesne profits. (3) (f) 
 
 Whenever the husband of a witness would be incompetent to Wife of inte- 
 
 ' rested witneis. 
 
 give evidence on account of his interest in the event of the cause, 
 it must necessarily follow that the wife also will be excluded, hav- 
 ing an unity of interests with her husband, (n) 
 
 If there is a direct interest in the event of the suit, it will Degree of 
 1 I • • 1 1, 1 • • . interest, 
 
 make the witness incompetent, however small and inconsidera- 
 ble the degree of interest may be, (v) Thus, in an action of 
 trespass, where the question was, whether a corporation which 
 
 (1) Doe dem. Wood v. Teagc, 5 Sayer, 45. 1 Ld. Rayrn. 730. 
 
 Barn. & Cress. 335, (3) Doe dem. Jones v. Wilde, 5 
 
 (2) Smith V. Blackham, 1 Salk. 283. Taunt. 183. I Marshall, 7 S. C. 
 
 * One of the points resolved, on the uiai at bar, in Pyke v. Crouch, 1 Ld. Ray-oi. 
 730, was, that a legatee is incompetent to prove a will; and in Halliard v. Jennings, 
 1 Ld. Raym. 505, on an issue o^decisavit vel non, it wa.^ assumed as a clear propo- 
 sitioB, that a devisee was not competent. 
 
 (»■) See Note li2, p. 122. {t) See Note 113, p. 123. (w) See Nolo lU, p. 125. 
 (v) Seo Note 115, p. 125. 
 
 Vol. I. 9 •
 
 66 Of the Nature of the Interest [Cli. 5. 
 
 had inclosed part of a common, had left a sufficiency for the coin- 
 Freeman mem- moners, a freeman was considered incompetent to prove the affir- 
 ber of corpora- . i i • i r i r 
 
 lion. mative, because the rent must liave been received lor the use ol 
 
 the corporation; (w) though it was admitted that the amount of the 
 rent was exceedingly small. (1) * Hence it appears, that a per- 
 son who loses or gains the smallest sum by the event of a suit, 
 whatever may be his rank, fortune, or character, is as incon)pe- 
 tent to give evidence, as one who may be interested to the amount 
 of thousands. This is the unavoidable consequence of the gener- 
 al rule. If interest is allowed to disqualify in any case, it must in 
 all; as it is impossible by any scale to measure the different effects 
 which it may have on different minds. 
 
 5. Cases, in which the witness is interested on both sides, (or) 
 
 Interest on If the witness has an interest inclining him to each of the 
 
 both sidet, parties, so as upon the whole to make him indifferent, he will 
 be competent to give evidence for either party. Thus, in an 
 action of assumpsit for money paid to the use of the defendants. 
 Captain of a ^yho were ship-owners. Lord Kenyon admitted the captain to 
 '*'" prove that he had received the money from the plaintiff for the 
 
 defendant's use; for he stood indifferent between the parties, 
 and, whichever way the verdict might go, he was equally an- 
 swerable. (2) So, in an action of covenant for rent, wiiere the 
 point in issue was, whether A. B., whose title both the plaintiff 
 Priority of de- and the defendant admitted, had demised the premises first to 
 ""'*• the plaintiff or to a third person? A. B. was a competent wit- 
 
 ness to prove that fact; for the verdict could not be given in 
 
 (1) Burton v. Hiiide, 5 T. R. 174. n. (c) Rocher v. Busher. 1 Starkre.N. 
 
 (2) Evans v. Williams, 7 T. R. 481, P. C. 27. 
 
 * See R. V. Mayor and Commonality of London, 2 Lev. 231, R. v. Carpenter, 2 
 Show 47, and case of City of London, 1 V'entr. 351, contra. In these cases, fiee- 
 men were admitted to be witnesses on account of the minuteness of their interest, 
 against the opinion of Jones J. The law of the case in 2 Lev. (where the point is 
 precisely the same as in the other two cases) lias been doubled by Mr. Justice Bul- 
 ler; see Bull. N. P. 290. In the case of Dowdeswell v. Nott, 2 Vern. 317, the 
 Court said, " The objection of an existing interest, though never so small, has al- 
 ways prevailed, and it was so resolved, upon great debate, in the case of the City of 
 London concerning the water-bailiff" 
 
 (w) 3ee Xol* 116, p. 125. (x) Bee Not* 117, p. 126.
 
 Sect. I.] which disqualifies. 67 
 
 evidence in nny future action either by or against the witness, be- 
 ing a record between other parties; and it appeared to be indif- 
 ferent to him, whether' he had the one or the other as his ten- 
 ant. (1) 
 
 In an action on a bill of exchange, by the indorsee against the Acceptor, 
 drawer, the acceptor is a competent witness on the part of the 
 plaintiff, to prove that he had no effects of the drawer in his 
 hands: (2) and so is the payee, to prove that he indorsed ih3 bill Payee. 
 to the plaintiff before it became due, in payment for goods; for 
 though he would be liable to the plaintiff for the goods sold, if this 
 action fail, yet, if it succeed, he would be liable to the defendant 
 for money paid (3) {y) 
 
 In an action on a bond against one of several obligors, another Co-obligor, 
 of the obligors is competent, for the plaintiff, to prove the execution 
 of the l.K)nd. (4) So, in an action on a promissory note, by the 
 payee against the maker, a joint maker of the note, who is not Joint maljer of 
 sued, is competent to prove the defendant's signature; (5) for if "°'^' 
 the plaintiff recover against the defendant, the witness would be 
 liable to him for contribution; and, if he fail, he miglit resort to 
 the witness for the whole, and in that case the witness would be 
 entitled to contribution from the defendant, so that in either point 
 of view the witness stands indifferent between the parties. 
 
 Where one of two partners drew a bill in the name of the Partner, 
 firm, and gave it in payment to his own separate creditor in dis- 
 charge of his own debt, the Court of King's Bench held, tiiat, 
 in an action by such creditor against the acceptor, the other 
 partner might be called for the defendant to prove that the one 
 who drew the bill had no auihority to draw it in the name of the 
 firm; and that the bankruptcy of the partners would not vary 
 the question as to his competency; for though he would be liable 
 
 (1) Bell V. Harwood, 3 T. R. 308. (3) Shuttleworth v. Stephens, 1 
 See Serie v. Serle, 2 Roll. Abr. 685. lit. Campb. N. P. C. 408. 
 
 Trial, (G.) cited Gilb. Ev. 109. (4) Lockhart v. Graham, 1 Str. 35. 
 
 (2) Staples v. Okines, 1 Esp. N. P. (5) York v. Blott, 5 Maule & Selw. 
 C. 331. 71. 
 
 (y) See Note US, p. 131.
 
 68 Nature of the Interest lohich disqualifies. [Cfi. 5. 
 
 to the defendant if the plaintiff' should recover, he would have his 
 remedy over against his partner. (I). 
 
 Partner. j^^ ^j^^ ^^^^ ^j- p[^,^gQp y_ Rohinson, (2) wiiich was an action of 
 
 assumpsit for the non-delivery of goods and for money had and re- 
 ceived, and the defendant pleaded in abatement, that the promises 
 were made by the defendant jointly with A. and B., and not by 
 the defendant alone, the Court of King's Bench determined, that 
 A. was a competent witness for the plainiifT, to prove that the de- 
 fendant was not authorised or eu)ployed by the partners to make 
 the contract, and that he received the money to his own use; for, 
 although the plaintiff^' should succeed, the defendant would not on 
 that account be precluded from suing the other partners for contri- 
 bution; the record in this action would not operate as an estoppel 
 against him on that occasion, because there is no mutuality, out of 
 which the estoppel can arise; the record could only be used, as a 
 medium of proof, to show that this defendant had paid in the ac- 
 tion a certain sum; and, in this point of view, the verdict in favor 
 of the plaintiff^" must be considered rather as prejudicial to the wit- 
 ness, {z) 
 
 Co-trespasser. j^, actions of trespass, it is the cominon practice to call a witness 
 to prove that he committed the trespass in question by the com- 
 mand of the defendant. (3) It is true, that a recovery against one 
 of several co-trespassers is a bar to an action against the others, 
 and would operate as a discharge of the witness from an action at 
 the suit of the plaintiff, for the same trespass. On the other hand, 
 it seems that he would be liable over to the defendant for all the 
 costs and damages recovered against him in the action of trespass, 
 if the defendant can show that the trespass was not committed by 
 his order; and the verdict in that case, could not be used in evi- 
 dence on either side. ('1) [a) 
 
 (1) Ridley v. Taylor, 13 East, 182, 1. the partner, who so drew the bill, would 
 
 3. This was laid down by the court, be liable to the defendant for the costs of 
 
 during the argument. And Lord Ellen- the action. 
 
 borough, in delivering the judgment of (2) 4 Maule & Selw. 476. Cossham 
 
 the court on a subsequent day, stated v. Goldney, 2 Starkie, N. P. C 414, S. 
 
 that both the partners (the one who P. 
 
 drew without authority in the name of (3) 5 Barn. & Cress. 387. 
 
 the firm equally with the other) would (4) See 5 Barn. & Cress. 3S8. Unless 
 
 be competent for the defendant. See p. this is so, there appears to be a strong 
 
 . 184, 185. It was not considered, in this interest in the witness, 
 case (for it was not necessary), whether 
 
 (2) See Note 119, p. 134. (a) See Nets 120, p. 134.
 
 Sect. 2.] Of Incompetency of Party to the Suit. 69 
 
 The Court of King's Bench held, in the case of Buckland v. 
 Tankard, (I) that a witness, who might have a renriedy by action, 
 whether the plaintiff or defendant had a verdict, was nevertheless 
 interested, because, under the particular circumstances, he would 
 have greater difficulty in the one case, than in the other, to enforce 
 that remedy. However, this appears to he the only case, which 
 has been decided on such a ground ; and from the leading cases 
 on this subject, which rest on the broad ground of interest, such a 
 circumstance n)ay now more properly be considered as having a 
 strong influence on the witness, but not as forming any solid ob^ 
 jection to his competency, {b) 
 
 Sect. II. 
 
 Of the Rule on the Subject of Interest, considered with reference to 
 the Parties in the Suit. 
 
 A PARTY to the suit on the record cannot be a witness at the Party incom, 
 trial for himself, or for a joint suitor, against the adverse party, (2) Patent, 
 on account of the immediate and direct inter'est which he has in 
 the event, either from having a certain benefit or loss, or from be- 
 ing liable to costs, (c) 
 
 The party, therefore, in whose name an action is brought, can- Trustees, 
 not be a witness, though he be merely a trustee for some other 
 person. (3) (d) A prochein amy suing for an infant is not compe- 
 tent. (4)(e) Persons appointed governors and directors of the poor Directors of 
 of a parish, under an act of parliament, which authorises them to 
 assess rate on the inhabitants, but in case of appeal makes them 
 liable to costs, to be indemnified out of the parochial fund, are not 
 competent witnesses on the trial of such appeal ; as they are parties peraon sued 
 to the suit, and liable to costs individually in the first instance. (5) (/) '" corporate 
 But there is no objection, it is said, to the competency of persons, 
 
 (l)5T. R. 579. (4) ClutterbucU v. Lord Hunling- 
 
 (2) 1 Vern. 230. 1 P. Wms. 596. tower, ] Str. 505. James v. Hatfield, 
 Gilb. Ev. 116. 1 Str. 548. Hopkins v. Neal, 2 Str. 
 
 (3) Bauerman v. Radenius, 7 T. 1025. Gilb. Ev. 107. 
 
 R. (i59. Phillips v. Duke of Buck- (5) R. v. St. IMary Magdalen, Ber- 
 ingham, 1 Vern. 230. And see the mondsey, 3 East, 7. 
 cases cited in 13 Price, 512. 
 
 (6) See Note 121, p. 134. (c) See Note 122, p 134. (d) See Note 123, p. 189. 
 («) See Note 124, p. 139. ( / ) See Note 125, p. 139.
 
 70 Of Incompetency of Party to the Suit. [(.*h. 5. 
 
 wlio are party to a suit in a corporate capacity, and consequently 
 not inflividiially liable to costs, and who are free from all interest 
 in the question. Thus, in an action against the governors of the 
 Foundling Hospital for the amount of work done by the plaintiff, 
 Lord Kenyon admitted several of the governors to prove the bad- 
 ness and insufficiency of the work. (1) {g) 
 
 Order for ex- Courts of equity, in granting an issue to be tried at law, frequent- 
 
 aniiiiation of , , , , • i n i • i i ■ ■ 
 
 pariy. 'y u'recl, lliat a j)arty to tlie suit shall be exammed at the trial as 
 
 a witness ; such an order waives no objection, except that which 
 arises from the circumstance of the witness being party in the 
 cause. (2) An order, allowing one party to examine the other, 
 warrants his counsel in putting questions to the other party, as to 
 an adverse witness, in the form of cross-examination. (3) 
 
 Exceptions. An exception to the general rule is stated by RoUe C J., in the 
 
 case of an action against a hundred on the statute of Winton, (4) 
 
 In action on where the plaintiff' (the party robbed) was allowed to prove the 
 
 Bt. of Winton. pobbe;-y and the amount of his loss, " from necessity, on default 
 of other proof." (5) So, in the case of Bennet v. Hundreds, 
 Hertford, (6) which' was an action on the same statute, brought 
 by a carrier for a robbery committed in his absence on his servant, 
 
 When compe- the court ruled against the opinion of Rolle C. J., that the plain- 
 tiff" might prove the amount of the money, which he had de- 
 livered to his servant. And the 15th section of the statute 3 G. 2, 
 c. 16, recites, tiiat in an action against the hundred the person 
 robbed may prove the robbery, and the property of which he was 
 robbed. 
 
 When not. But though the plaintiff may prove the fact of the robbery, 
 
 yet with respect to matters which may be proved by other 
 evidence, he is not a competent witness. Thus he cannot give 
 evidence to prove, that the place, where he was robbed, is with- 
 in the hundred, against which he has brought the action. (7) 
 
 (1) Weller v. The Governors of (4) St. 13 Ed. 1. c 2. 
 
 Found!. Hosp. Peake, N. P. C. 153. (5) 2 Roll. Ab. 686. Bull. N. P. 
 
 And see Barrett v. Gore and another, 2S9. 1 Atk. 37, 38. 
 
 3 Atk. 401. (6) 2 Roll. Ab. 686. Vin. Ab. Ev. 
 
 (2) Rogerson v. Whittington, 1 (1), pi. 34. 
 
 Swanston, Ch. Rep. 39. (7) By Page J. Rep. temp. Hard. 
 
 (3) Clarke y. Saffery, 1 Ry. & Mo. 83. 
 126, by Best, C J. 
 
 (g) See Note 126, p. 139.
 
 Seel. 2.] Of Incompetency of Party to the Suit. 71 
 
 And though the party robbed, who broueht the action, has I"habitants of 
 
 '^ ' -^^ , , ° nundred. 
 
 been allowed to be a witness even in his own cause, yet none of 
 
 ti)e inhabitants of the hundred were formerly received on behalf 
 
 of the hundred, however inconsiderable their interest might 
 
 be; (I) but now they are competent witnesses by the statute 
 
 8 G. 2, c. 16, s. 15. 
 
 One other exception appears to have been made in the case I" action for 
 
 . . ... malicious pro- 
 
 of an action for a malicious prosecution, where it seems to have secution. 
 
 been understood, that the evidence, which the defendant himself 
 gave on the trial of the indictment, may, under certain circum- 
 stances, be received in his favor on the trial of the action. In 
 the case of Johnson v. Browning, (2) Lord Holt C. J. admitted 
 in evidence the oath of the defendant's wife, (who was the only 
 person present at the time of the supposed felony, and who, as 
 the report says, could not herself be a witness,) to prove the 
 felony committed; " for otherwise, it is said, one that should be 
 robbed would be under an intolerable mischief ; if he prose- 
 cuted for such robbery, and the party should be acquitted, the 
 prosecutor would be liable to an action for a malicious prosecu- 
 tion without the possibility of making a good delence, though 
 the cause of prosecution were ever so pregnant." And Mr. 
 Justice Buller, treating of this action, says, " As it may come to 
 be left to a jury, it is advisable for the defendant to give proof 
 of a probable cause, if he be capable of doing it: and for this 
 purpose proof of the evidence given by the defendant on the in- 
 dictment is good." (S) 
 
 Tn the case of the Mayor and Commonalty of London, (4) ^^"^^^^^f^^ 
 
 J ' V z corporation. 
 
 and that of tiie city of London concerning vvater-ballage, (5) the 
 point in issue was, whether the corporation was entitled to cer- 
 tain tolls; in the first case, it was ruled by the whole court, and 
 by three judges in the last, that freemen (members of the cor- 
 poration) might be witnesses in support of the claim, because 
 the tolls would be received for the benefit of the whole corporate 
 body, and the interest of any individual must therefore be in- 
 
 (1) R. V. Carpenter, 2 Show. 47. (4) 2 Lev. 231. And see Corp. of 
 
 (2) 6 Mod. Rep. 216. Sutton Coldfield v. Wilson, 1 Vern. 
 
 (3) Bull. N. P. 14, citing Cobb v. 254. 
 
 Car. 1746. (5) 1 Vent. 351.
 
 72 
 
 Of Incompelency of Party to the Suit [Ch. 5. 
 
 Party not 
 compellable 
 to give evi- 
 dence. 
 
 Rated inhab- 
 itants. 
 
 Lessor of 
 plaintiff. 
 
 Co-plaintiff 
 witness 
 against an- 
 other. 
 
 considerable. But Mr. Justice Duller has doubted the law of ilie 
 former case, (1) and its authority is still further shaken by the case 
 of Burton V. Ilinde, before mentioned. (2) (/i) 
 
 As a party to the suit is not sufiered to be a witness in support 
 of his own interest, so he is never compelled in courts of law to 
 give evidence for the opposite party against himself. On a ques- 
 tion of settlement, it has been determined, in the case of the King 
 against Wobm-n, that the rated inhabitants of either parish, being in 
 reality the parties to the proceeding, could not be compelled to give 
 evidence against their own parish. (3) So, in an action of eject- 
 ment, on the several demises of two lessors, one of them is not com- 
 pellable to give evidence for the defendant, though no title has been 
 proved under his demise. (4) The lessors of the plaintiff, said 
 Lord Ellenborough, are substantially the parties on the record; all 
 are jointly liable; that lessor, upon whose title the recovery pro- 
 ceeds, is generally the trustee of the other; and there are the 
 same reasons for protecting them from beingexamined, which have 
 produced the general rule of law, that the parties on the record can- 
 not be compelled to give evidence against themselves, and are not 
 permitted to swear in their own favor, (i). 
 
 Where one of several co-plaintiffs comes forward voluntarily 
 to disprove the defendant's liability to the demand made upon 
 him, it has been thought, that, with the consent of the adverse 
 party, he may be adrnitted, though at the same time he defeats 
 the claim of those, who jointly sue with him; (5) for, if the 
 plaintiff were to make a declaration against his interest out of 
 court, evidence of that declaration would be admissible; and 
 how is the proof less credible, said C. J. Mansfield, if, with the 
 consent of the defendant, who waives all objection to his testi- 
 
 (1) Bull. N. P. 290. liamson, 1 Taunt. 378, by Mansfield 
 
 (2) 5 T. R. 174. See ante, p. 66. C. J. and Chambre J. who were the 
 
 (3) R. V. Woburn, 10 Ea.st, 403. only judjjos present. This appears to 
 This case was decided before the late be the only authority n.s to the adinis- 
 act, St. 54 G. 3, c. 170. See infra, sibilily of one co-plaintiff against an- 
 Sect. 7, of this Chapter. other. See the case of Mant v. 
 
 (4) Fenn dem. Pcwtress v. Granger, Manwaring and Chapman v. Graves, 
 3 Campb. N. P. C. 173. infra, p. 75, as to the incompetency of 
 
 (5) Nordon and another v. Wil- one co-defendant against another." 
 
 (h) See Note l27, p. 140. (i) See Note 128, p. 141.
 
 Sect. 2.] Of Incompetency of Party to the Suit. 73 
 
 mony, he declares the same thing upon oath at the time of the 
 trial? (j) 
 
 The eeneral rule seems to be, that one of several defendants is Co-defendant 
 o 1 1 r when compe- 
 
 not entitled to a verdict, separately from the rest, at the close ol tent for anoth- 
 
 ihe plaintiff's case, although the plaintiff' has failed in proving the ^^' 
 charge against him; and therefore cannot be used as a witness 
 for the other defendants, until the whole of the case of the oth- 
 er defendants, exclusive of the evidence which he may have lo 
 give, is entirely finished. (1) When that is done, and there is no 
 evidence lo iiDplicate liim, a verdict may be taken for him sep- 
 arately, with the consent of the counsel, and then he ajay be ex- 
 amined on behalf of the rest, (/c) 
 
 If any person, writes C B. Gilbirt, he arbitrarily made a de- 
 fendant to prevent his testimony in the cause, the plaintiff shall 
 not prevail by that artifice, but the defendant against whom noth- 
 ing is proved, shall notwithstanding be sworn; for here the de- 
 fendant does not swear in his own justification, but in justifica- 
 tion of another, with whom he is unnecessarily joined: and if 
 this were not allowed, the plaintiff mi^ht turn all the several wit- 
 nesses into defendants, and thus might be able to prove what he 
 pleased without contest. (2) But this rule must be understood with 
 reference to the case, where there is no kind of evidence against 
 such defendant; for if "there be evidence against him, though not 
 enough to convict him in the judge's opinion, yet such person can- 
 not be a witness for the other, but his guilt or innocence must await 
 the event of the verdict, the jury being judges of the fact. (/) 
 
 In trespass against a person, " for that he, together with A. Co-trespasser. 
 B," &c. committed the wrong complained of, the defendant 
 pleaded that A. B. paid the plaintiff" a guinea in satisfaction, 
 and issue thereon; the defendant called A. B. as witness, and 
 Eyre C. J. allowed him to be examined, for what he might 
 prove could not be given in evidence in another action, and in 
 effect he makes himself liable by swearing that he was concerned 
 in the trespass. (3) But if the plaintiff" can prove, that A. B. 
 
 (1) See Davis V. Living and others, Ry. & Mo. 128. 
 Holf, N. P. C. 275. Emmet v. But- (2) O.Wh. Ev. 117. Bull. N. P. 285. 
 ler, 7 Taunt. 607. Ward v. Bourne, (3) Peplet v. James, Bull. N. P. 
 
 staled in vol. ii. Wright v. Paulin, 1 286. 
 
 (» See Note 129, p. 142. (k) Bee Note 180, p. 142. (/) gee Note 131, p. 148. 
 
 Vol. I. * 10
 
 74 Of Incompetency of Party to the Suit [Ch. 5. 
 
 was concerned in the trespass, and is party to the suit, (which 
 must be shown by j)roducing the original or process against him, 
 and proving an incfi'eclual endeavour to arrest him, or that the 
 process was lost,) he cannot be admitted a witness for the defen- 
 dant. (l)(m) U nothing is proved against A. B., then he ought 
 to be admitted. (2) (n) 
 
 Co-defendent I" an action against several defendants, if one plead his bank- 
 blfnkrup'tcy '""P^cy, and the others plead the general issue, the former can- 
 not be admitted to give evidence for the rest, though lie may 
 have received his certificate: (3) for, in case of a verdict for thiJ 
 
 „ „ plainlifT, he is liable to ilie costs of this action. If a nolle prosequi 
 
 Jyolle-prose- ^ ^ 
 
 qui. had been entered as to the defendant, proposed to be called as 
 
 witness, that would make him competent. (4) (o) 
 
 Co-defendant In a case where one of the defendants, on an indicttT>ent for ar? 
 
 fined.' "'^°" assault, pleaded guilly, and was fined, and paid the fine, Pratt 
 C. J. allowed him to be witnfess for another defendant, who 
 pleaded not guilty: he considered the trial as at an end with 
 respect to him. f5)(p) And he would be a competent witness 
 against the other defendants. On the trial of an indictment for 
 a conspiracy, a verdict of acquittal may be taken for some of the 
 defendants, at the instance of the prosecutor, before the opening 
 of the case against tlie rest, and the defendants so acquitted may 
 be called as witnesses for the i)rosecution. (6) {q) 
 
 Co-defendant, On a joint indictment against several for a misdemeanor, a de- 
 
 in indictment, c ^ ^ rr • t x ^ r \ I- - r- 
 
 sufferina iud<T- 'endant, who surfers judgment by deiault, cannot be a witness lor 
 
 ment by de- \\^q other defendants. (7) The admission of such evidence, said 
 
 Lord Ellenborough, might be extended equally to every other 
 
 criminal ca?;e, and thus one of the party, l.y suffering judgment 
 
 (1) Reazon V. Ewb.Tn!:, Bull. N P. so ruled by Le Blanc J. at Lancaster. 
 286. Hill V. Fleming. Rep. temp. 1 Mooie, 339. 7 Tauat. 607. See 
 Hard. 264. Llovd v. Wiiliams, ib. also Moody v. King and Porter, 2 Paru. 
 123. ' & Cress. 55S. 
 
 (2) Page V. Crock, t-tyl. 40! 1 (5) K. v. rietcher, 1 Sir. 633 R. v. 
 Atk. 452. r-hi.-arman and Idle, Rep. temp. Hard. 
 
 (3) Raven v. Dunning and another, 303. 
 
 3 Esp. N. P C. 25. Currin v. Cliild (6) R. v. Rowland and olliers, 1 Ry. 
 
 and anmhf-r, 3 Ci-iipb. 2S3, S. P. & T-'od. 402. 
 
 Enimelt v. Rradlcy and othera, 1 IVloor>;, (7) R. v. Lafoiie and clhers, 5 Esn. 
 
 C. p. 332, S. P. N S. C. 155. 
 
 (4) Said by Parke S. to hava becu- 
 
 (r/i) See Note 132, p. 144. (n) See Note 133, p. 144. (o) See Note 134, p. 
 144. (jD) SeeKote 135, p. 145. {q) See A'ote 136, p. 145.
 
 Sect. 2.] Of Inrompetency of Parly to the Suit. 75 
 
 by default, might protect tlie rest; there is a community of guilt; 
 they are ail engaged in an unlawful proceeding; the offence is the 
 offence of all, not of a single individual only, (r) 
 
 In an action on a joint contract against two defendants, where Co-defendant 
 
 1 1 c I T IT'' r J »^ „ I ;» i" iin action of 
 
 one let judgment go by dehiult. Lord Kenyon relused to admit ^.^.^i.^^t^ ^^f. 
 
 him, as a witness for the other defendant, to negative the con- fering judg- 
 
 .... I I I I '"eiil by de- 
 
 tract; for, if negatived as to one, it fads as to the other, and the fault. 
 
 plaintiff could not make usa of the judgment by default against 
 
 him. (l)(s) 
 
 Nor is lie a competent witness for the plaintiff, for, if the plain- 
 tiff succeeds, he will be entitled to a contribution from the co-de- 
 fendant, and if the plaintiff fails, he himself will be liable to the 
 whole of the demand. (2)- (l). In the case of Mant v. Manwar- 
 ing, (3) the Court of Common Pleas appear to have held, in an ac- 
 tion on a joint contract against several partners, tl)at one of the de- 
 fendnnts was not competent, for the plaintiff, without the consent 
 of the other defendants, to prove the partnership between himself 
 and them; although he had suffered judgment by default, and had 
 been released by the plaintiff as to all other actions, excepting the 
 one then on trial, (w) 
 
 It has been held at nisi prius, in the case of Ward v. Haydon, Co-defendant 
 that a defendant in an action of trover, who suffers judgment by in action of 
 default, may be a witness for the co-defendants, as he is not judgment by 
 liable to the costs of the issiie tried against the other, and is not ^^f^"''- 
 himself released, whatever may be the event of that issue. (4) 
 But one who suffers judgment by default, is not a competent 
 xvitness, in an action of tres()ass, for the plaintiff, against the co- In trespass, 
 defendants. In a case of this kind, (5) Mr. Justice Le Blanc 
 said, " The general rule is, tl)at a parly to the record is not 
 admissible as a witness; in the case of Ward v. Haydon, the 
 co-defendant was called to exculpate the other def^nJant, here 
 it is proposed to call a co-defen<lant to inculpate the oih'.Ts; the 
 cases, therefore are disiinguisliable." And he added, that, " when 
 
 (1) Brown v. Fox. Ex. Sum. Asa. (4) Ward v. iliiydo:! and anotlior, 
 
 1789, M. S. 8 Tannt. 141. 2 Esj) R. N. P. r;53. 
 
 <2) Brown v. Browi) and auothor, {b) Chiipm.in v. (Jraveg, 2 Campb. 
 
 4 Taunt. 752. 3:53, n by Lo Blanc J. 
 
 (3) 7 Taunt 139, 8. C. 2 Moore, 9. 
 
 (r) See Note 137. p. 146. («) Seo Note 138, p. 146. (/) See Note 139, p. 146. 
 (u) See Note 140, p. 146.
 
 76 Of Incompetency oj Husband or Wife [Cli. b. 
 
 there had been an innovation in the rule, he was not disposed to 
 extend it." [y) 
 
 In ejectment \^-^ 3^ action of ejectment against two defendants, a co-defend- 
 ant, who suflers judgment by default, has been considered a com- 
 petent witness for the plaintiff to prove the otlier in possession. (1) 
 Lord Ellenborough held, that the verdict in this case would not 
 prevent the plaintiff from suing the witness for the mesne profits; 
 that the only supposed interest imputable to the witness, is the 
 possibility that the plaintiff will sue the present defendant alone; 
 but this is such a remote interest as cannot render the witness in- 
 competent. 
 
 If a material witness for a defendant in ejectment is made a co- 
 defendant, his proper course is to let judgment go by default; but, 
 if he plead, the court will not afterwards upon motion strike out 
 his name. (2) " But in such case," adds Mr. Justice BuUer, " if 
 he consent to let a verdict be given against him for so much as he 
 is proved to be in possession of, I see no reason why he should not 
 be a witness for another defendant." (3) 
 
 Witness made Where a witness for the plaintiff is by mistake made a defend- 
 defendant by ant, the court will on motion suffer his name to be struck out of 
 the record, even after issue joined, and then he may be examin- 
 ed: (4) or, in the case of an information, the attorney general 
 may enter a nolle prosequi as to one of the defendants, and so 
 make him a witness. (5) 
 
 Sect. III. 
 
 Of the Rule on the Subject of Interest, considered with reference to 
 the Husband or Wife of the Party. 
 
 Geaeralrnle. As a parly on the record is not a competent witness, so 
 neither is the husband or wife of the party competent to give 
 
 (1) Doe dem. Ilarrop v. Green and (3) Bull. N. P. 235 
 
 another, 4 Esp. N. C. P. I9S. (5) 1 Sid. 441. Bull. N. P. 285. 
 
 (2) Dormer v. Fortescuo, Bull. N. P. (5) Rep. temp. Hard. 163. Bull. N. 
 285. P- 285. 
 
 (t>) See Note 141, p. 147.
 
 Sect. 5.] of the Party. 77 
 
 evidence either for or against the party. (1) No other relation is 
 excluded : (2) a father may give evidence for his son, or the son 
 for his father ; and though the relation between them may influ- 
 ence his testimony, it will not render him incompetent. The rea- 
 son for excluding the husband and wife from giving evidence, ei- 
 ther for or against each other, is founded parlly on their identity of 
 interest, and partly on a principle of public policy, which deems it 
 necessary to guard the security and confidence of private life, even 
 at the risk of an occasional failure of justice. They cannot be 
 witnesses for each other, because their interests are absolutely the 
 same ; they are not witnesses against each other, because this is 
 inconsistent with the relation of marriage. 
 
 First, the general rule is, that they cannot be witnesses against Not witneasei 
 , ...... • • 1 J- Til against each 
 
 each other, either m civu or criminal proceedmgs. It has been re- other. 
 
 solved, says Lord Coke, (3) that a wife cannot be produced 
 against the husband, as it might be the means of implacable dis- 
 cord and dissension between them, and the means of great incon- 
 venience. In an action brought by a woman as feme sole, the de- 
 fendant cannot call the plaintiff 's husband to prove her married, 
 thereby to nonsuit her. (4) 
 
 The husband and wife are not allowed to be witnesses against 
 each other in criminal proceedings, except in certain cases which 
 will afterwards be mentioned. In a prosecution for bigamy, the 
 first husband cannot be admitted to prove the former marriage 
 against the wife ; (5) such evidence would -directly criminate, and, 
 therefore, is not admissible for the reason above mentioned. On a 
 trial for murder, the wife of the prisoner cannot be a witness against 
 him. On a prosecution against a woman and others, for a con- 
 spiracy in procuring a marriage between her and her husband, the 
 man is not a competent witness against her in support of the pros- 
 ecution. (6) (w) 
 
 (1) Co. Lit. 6, (b). Hawk. b. 2. (4) Bently v. Cook, cited in R. ▼• 
 c. 46. 8. 70. Gilb. Ev. 119. Bull. N. Cliviger, 2 T. R. 265, 269. 
 
 P. 286. (5) Mary Grigg's case. Sir T. 
 
 (2) 1 Hale, P. C. 303. 2 Hale, P. Raym. 1. 
 
 C. 276. Hawk. b. 2, c. 46, a. 76. Bull. (6) R. v. Sergeant and other*, 1 
 N. P. 287. 1 Wili. 332. Ry. & Mo. 352, before Abbott C. J. 
 
 (3) Co. Lit. 6, (6). 
 
 (w) See Nota 142, p. 147.
 
 78 Of Incompetency of Husband or IVife [C\\. o. 
 
 Evidence/end According to the rule laiil down in the case of the King against 
 ate. the Inhabitants ofCliviger, (1) a husband or wife ought not to be 
 
 permitted to give any evidence that may even tend to criminate each 
 otlier. In that case, on an appeal against an order of removal of a 
 pauper and also of a woman as his wife, the respondents having 
 proved the marriage, the appellants called the pauper for the pur- 
 pose of proving his former marriage vvilli another woman, but he 
 swore directly the reverse ; they then called the woman to prove 
 * the alleged former n)arriage. The court of quarter sessions reject- 
 ed the witness ; and the Court of King's Bench determined, that 
 she was not competent lo give such evidence. Both Mr. Justice 
 Ashurst^^nd Mr. Justice Grose, the only judges present in court, 
 were of opinion, that a husband and wife are not permitted, from a 
 principle of public policy, to give any evidence that may even tend 
 to criminate each other ; that tlie objection is not confined merely 
 (o cases where they are directly accused of a crime ; but, even in 
 collateral cases, if their evidence tends that way, it shall not be 
 admitted ; for although the evidence of ihe one could not be used 
 against the other on a subsequent trial for the ofience, vet it might 
 lead to a criminal charge, and cause the other to be apprehended, (x) 
 
 The authorities relied upon, in support of this decision, are a pas- 
 sage from Lord Hale's Pleas of the Crown (2) and the case of 
 Broughton v. Harpur. (3) But the former authority goes no fiir- 
 ther than this, that the wife is not compellable to give any evidence 
 charging the husband with offence; the passage is, "a woman 
 is not bound to be sworn, or to give evidence against another in 
 case of theft, &c., if her husband be concerned, tliough it be ma- 
 terial against another, and not directly against her husband." In 
 the case of Broughton v. Harpur, vvhere the plaintiff made title to 
 lands as son and heir of A. B. and C. D. his wife, in right of C. 
 D., and the defendant's case was, that A. B. was married to a for- 
 mer wife then living, Gould J. adnilled the woman, to whom A. B. 
 was supposed to be married, to prove the former marriage; but af- 
 terwards, as the report slateSj the same cause being tried upon the 
 same title between the same parties. Lord Holt C. J. refused to ad- 
 CD 2 T. R. 263. (3) 2 Ld. Raym. 762. 
 (2) 2 H. P. C. 301, 
 
 (x) See Note 143, p. 147.
 
 Seer. S.] of the Parti/. '^^ 
 
 mit the former wife, as witness to prove the fact. The note of the 
 case is very short; and it is not stated for what reason the wife 
 was considered incompetent on the second trial. The objeciion 
 against her competency on the first trial was on the ground of in- 
 terest; and, although at that time this cause of incompetency was 
 not accurately defined, it is now clearly settled, that such an objec- 
 tion could not be supported, and that it was projierly overruled on 
 the first trial. These authorities, therefore, it is evident, do not sup- 
 port the case of tlie King v. Inhabitanis of Cliviger, to the extent 
 to which thai case has gone; they certainly do not lead to the 
 conclusion, that husbands and wives are not permitted to give any 
 evidence, in collateral cases, that has a tendenaj to crhninate each 
 Other. 
 
 The rule laid down in the case of the King v. Cliviger was much Tl'e one com- 
 
 '^ ^ _ petent lo con- 
 
 discussed in a late case, the case of the King against the Inhabit- tradicttheoib- 
 ants of All Saints in Worcester, (1) in which the Court of King's ll^^^° ^ "* 
 Bench was of oi)inion, that it had been expressed in terms much 
 too general and undefined. That case was as follows: On an ap- 
 peal against the removal of Esther Newman, otherwise Esther Wil- 
 lis, to the parish of All Saints, as to her maiden settlement, the re- 
 spondents called a woman of the name of Ann Willis for the pur- 
 pose of proving this fact, namely, that at a certain time she marri- 
 ed one G. Willis. The appellants objected to her competency, al- 
 h^ging that they were prepared to p^ove his marriage with the pau- 
 ]icr at a subsequent time. The quarter sessions admitted the evi- 
 dence of the witness, wlio proved her marriage with G. W. about 
 fourteen years ago; and cohabitation between this witness and G. 
 W., as man and wife, was proved by other evidence. The respon- 
 dents then proved, that the pauper gained a settlement in her own 
 right ir. the appellant parish, and that she had about three years 
 ago marrieri G. W.; and this marriage was proved as well by the 
 pauper herself, as by a witness present at the time of the nsarrtage. 
 The counsel for the appellants contended, that the evidence of 
 Ann Willis ought to be struck out. But the court of quarter ses- 
 sions overruled the objection, and stated the case for the opinion of 
 the court of King's Bench. In the course of the argument, which 
 
 (1) Easter Term, 1817, May 4, MS.
 
 ^0 Of Incompetency of Husband or Wife [Cli. 5. 
 
 took place on sl)owing cause against the rule for setting aside the 
 judgnjent of the court below, tiie case of the King v. Cliviger was 
 brought into discussion. And after much ar§un)ent, the Court ot 
 King's Bench was of opinion, in the first place, that the case cited 
 (adn:iiting it to its utmost extent) did not show the evidence to be 
 inadmissible at the time tiiai it was odered; for the vvife did not 
 contradict the husband, as he had not been examined, — she did not 
 by her evidence directly criminate him, as the proceeding related 
 to other matters, and not to any crinjinal charge against him — and 
 her evidence could never be used against him, nor be made the 
 groundwork of any future criminal proceeding; the evidence, 
 therefore was unobjectionable when received, and could not prop- 
 erly be expunged. Tiie court were further of opinion, that the 
 rule, laid down in the case of the King v. Cliviger, was too large 
 and general; that the former wife would have been competent to 
 prove her marriage, though the second marriage had been first 
 proved by the respondents; and that even if the second marriage 
 had been proved by the appellants, still she would be competent, 
 and the respondents in reply might have called her to prove the 
 former marriage; for her evidence did not directly criminate the 
 husband, and never could be used against him, nor could he ever 
 be affected by the judgment of the court founded upon such evi- 
 dence, (y). 
 
 The result, therefore, appears to be, that, on the trial of an 
 appeal against an order of removal, (and, upon the same princi- 
 ple, in any collateral suit or proceeding between third persons,) 
 a husband or wife is a competent witness to prove a former mar- 
 riage, even after proof of a second marriage, although, perhaps the 
 witness would not be compellable to answer such questions. And 
 the reasoning, upon which this rule is founded, is equally strong 
 to show, that the one may be called as witness to disprove what 
 has been stated by the other; and that either the party who 
 has called the one, or the opposite party, may call the other for 
 the purpose of contradicting. Indeed, the reasoning is much 
 stronger in this case than in the former, where the husband or 
 wife is allowed to prove the first marriage ; for although they 
 may directly contradict each other as to a particular fact, it will 
 
 (3/) See Note 144, p. 14S.
 
 Sect. 3.] of the Party. 81 
 
 not follow, that either party has been guilty of perjury. And as 
 the most serious inconveniences might result from a different rule, 
 which would be a bar to the full and complete investigation of the 
 subject, in cases too where the property, the cliaracter, or even the 
 life of a party may be at stake, it appears to be reasonable and neces- 
 sary to the ends of justice, that such evidence should be admitted. 
 
 Secondly, the general rule is, that neither the husband nor the ^"' compe- 
 •<- -11 1 11 1 • -I r ,,..., tent/or each 
 
 wde will be allowed to uive evidence tor each other, m civd orothar. 
 
 criminal proceedings. (1) (r) In a prosecution for larceny, or 
 murder, the one would not be a competent witness for the other. 
 On a prosecution against several persons for a conspiracy. Lord 
 ElienboroughC. J. refused to admit the wife of one of the defendants 
 to be a witness for the others; a joint offence being charged, and 
 an acquittal of all the other defendants being a ground af dis- 
 charge for the husband. (2) (a) 
 
 The same reason applies to the declarations of the husband [b) or Ueclaratians. 
 wife, (c) Where an action is brought by or against the husband or 
 by the husband and wife jointly in right of the wife, the general 
 rule is, that the declarations of the wife are not evidence against 
 or for the husband. (3) In an action of trespass against a hus- 
 band and wife, the wife's confession of a trespass, committed by 
 her, cannot be given in evidence against the husband. (4) {d) In an 
 action for goods supplied to the defendant's wife, who, as it ap- 
 peared, lived separate upon an allowance fiom him, her declar- 
 ations as to the receipt of the allowance could not be admitted in 
 his favor. (5) * A discourse between the husbnnd and wife, in 
 
 (1) Supra, p. 77. 6 T. R. G80. Barron v. Grillard, 3 
 
 (2) R. V. Locker and others, 5 Esp. Ves. & ne;im. 165. Baiter v. Mor- 
 N. P. C. 107. 1 Ry. & Mo. 354. R. ley, Bull. N. P. 28. 
 
 V. Frederick and another, 2 Str. 10D4, (4) Denn v. White and jinotber, 7 
 
 S. P. T. R. 112. 
 
 (3) Winsmore Y. Greenbank, Willes, (5) Hodgkinson v. Fletcher, 4 Campb. 
 577. Alban and others v. Pritchelt, N. P. C. 70. 
 
 * In Scholey v. Goodman, (1 Bing. 349,) an jvction on an agreement, liy whieh 
 the defendant agreed to live separate from his wife, and to p.iy tjie plaintiff a cer- 
 tain allowance for the use of his (defendant's) wife, a questien arose as to the ad- 
 niissibiiity of the wife's declarations, to prove that she was living in a state of adul- 
 tery, during the time for which the aflovvance was claimed. The point was not 
 decided by the Court. 
 
 (s) See Note 145, p. 148. (a) See Note 146, p. 148. (ft) See Note 147, p. 
 149. (c) See Note 143, p. 149. ((Z) See Note 149, p. 150. 
 Vol. I. 11
 
 82 Of Incompetency of Husband or Wife [Ch. 5. 
 
 the presence of a third person, may be given in evidence against 
 the husband, hke any olher conversation in which he may have 
 been concerned. 
 
 Letters. Letters written by the husband or wife are subject to the same 
 
 rule as their declarations. In general, letters written by the hus- 
 band to the wife may be read as evidence against him; but her 
 letters to hirn would not be evidence for him, (1) 
 
 Crjm. COD. In an action for criminal conversation with the plaintiff's wife, 
 
 the wife's letters to the defendant are not evidence for the defend- 
 ant against the husband, nor is her confession evidence for the hus- 
 band against the defendant: but conversations between her and the 
 defendant are evidence against him. (2) Evidence of the man- 
 ner in which the husband and wife used to live together, before 
 her connection with the defendant, is clearly admissible, for the 
 purpose either of increasing or lowering the damages: and upon 
 this principle it has been determined, that, where the husband and 
 Letters of wife wife have lived apart from each other, the letters of the wife to her 
 to us an . husband, written before any suspicion of a criminal intercourse, are 
 admissible in evidence, as showing their demeanor and conduct, 
 whether they were living on terms of mutual affection; but, on ac- 
 count of the obvious danger of collusion, it ought to be strictly pro- 
 ved, that the letters, which are offered in evidence, were written at 
 a time when the wife was not suspected of misconduct, (-'i) (e) 
 
 Action by j^, g^ action brought by the executrix of a surviving trustee 
 
 trustee of . f i i i i r • 
 
 wife. under a marnage-setilement, to recover back the value of certam 
 
 goods, which had been sold by the defendant, as the sheriff, under 
 
 on execution against the husband of the cestui/ que trusty the 
 
 husband was not admitted to prove, on the part of the plaintiff, 
 
 that the goods had been conveyed in trust to the plaintiff for the 
 
 separate use of his (the witness's) wife. (4) In this case, as 
 
 the witness's debt would have been discharged by a sufHcient 
 
 (1) Bull. N. P. 28. 101, S. C— The cause of their separ- 
 
 (2) Bull. N. P. 28. Winsmore v. ation was not shown in the latter case. 
 Greenbaiik, Willes, 577. la the former, they were living separ- 
 
 (3) Edwards v. Crock, 4 Esp. N. ate, as servants in difTerent families. 
 
 P. C. 39. Trelawney v. Coleman, 1 (4) Davis v. Dinwoodv, 4 T- R. 
 
 Barn. & Aid. 90. 2 Starkie, N. P. C. 678. 
 
 (e) »Seo Note 150. p. 150.
 
 Sect. 3.] of the Party. 83 
 
 execution, his evidence would have been in that respect against 
 his personal interest: (1) but on the other liand, it was the wife's 
 interest to have the properly secured for her separate use; and 
 though the action was between third persons, yet it direcily afFect- 
 ed her interest, the action being brought by her trustee for her ben- 
 efit, and the real point in issue being, whether the goods belonged 
 to her or to her husband. (/) 
 
 This eeneral rule of evidence, which has been adopted for the I" case of 
 . f, . (. . , ~ . divorce. 
 
 purpose of promoting a perfect union of uiterests, and ot securing 
 
 mutual confidence, is so strictly observed, that even after a dissolu- 
 tion of marriage for adultery, the wife is not admitted to give any 
 evidence of what occurred during the marriage, which would have 
 been excluded, if the marriage had continued. (2) This, as Lord 
 Ellenborough has said, is on the ground, that the confidence, which 
 subsisted between them at the time, shall not be violated in conse- 
 quence of any future separation. Thus one great cause of distrust 
 is removed, by making the confidence, which once subsists, ever af- 
 terwards inviolable in courts of law. 
 
 Upon the same principle, in an action by an executor against a Or death, 
 sheriff for a false return to a writ of fi. fa., it has been held, that the 
 widow of the testator cannot be allowed, on the part of the defend- 
 ant, to give evidence of a conversation between herself and the tes- 
 tator. (3) {g) 
 
 In a case before Lord Hardwicke C. J., he would not suffer a wo- Or consent, 
 man to be a witness, though her husband consented: (4) " the 
 rule," he said, " is for the peace of families, and such consent 
 should never be encouraged." (/i) 
 
 There are several exceptions, to wliich the reason of the gen- Exceptions, 
 eral rule on this subject docs not oj^ply, or where it is outweigh- 
 ed by considerations of higher importance. In the following 
 cases, the one is competent to give evidence against the oth- 
 er. And in all those cases, in which the one is competent to 
 
 (1) See Bland v. AnsJey, 2 New (.3) Doker v. Hasler, I Ry. & Mo. 
 Rep. 331. ins. by Best C. J. 
 
 (2) Monroe v. Twisleton, cited in (4) Barker v. Sir Woolston Dixie, 
 Averaon v. Lord Kinnaird, 6 East, 192. Rep. temp. Hard. 264. 
 
 (/) See Note 151, p. 150. (^) S«»e Note 152. p. 151. (A) See Note 153, p. 151.
 
 84 OJ Incompelenvy of Husband or Wife [Ch. r. 
 
 Ewepfions. give oft-idence agaimt the other, the one is equally competent to 
 give evidence for the other. (1) (i) 
 
 In case of for- jf ^^ woman is taken away by force and married, she may be a 
 cible marriaie. _ , - ,• i o tt ►^ c\ c i 
 
 witness agau)st her husband indicted on slat, o H. 7, c. 2, *or she 
 
 is not a wife de jure, a contract obtained by force having no obliga- 
 tion in law. (2) From this it might appear, that if the actual mar- 
 riao-e were valid (as where the woman after the abduction con- 
 sents to the marriage volimtarily, and not induced by any prece- 
 dent menace,) her evidence ought not to be allowed. (3) But it is 
 said to have been ruled, upon debate, that a wife is a competent 
 v/itness for as well as against her husband, on the trial of an in- 
 dictment on this statute, although she has cohabited with him from 
 the day of her marriage. (4) ( j) 
 
 In case of q indictment for a second marriage during the continuance 
 
 bigamy, ^ ° i • / 
 
 of a former marriage, though the first wife cannot be a witness, (5) 
 
 yet the second wife may, after proof of the first marriage. (6) Af- 
 ter such proof, she would be competent to give evidence for as well 
 as against the prisoner. (7). 
 
 for pe^rsonaT" A wife may be a witness on the prosecution of her husband 
 violence. ^^^ ^^ offence committed against her person. This was deter- 
 
 mined by all the judges present, on Lord Audley's trial, (8) and 
 has been siiicu confirmed by the highest authority, (9) on every 
 principal of humanity and justice. In Azayr's case, on an in- 
 dictment against a man for beating his wife. Lord Raymond 
 suffered her to give evidence. (10) (k) In such cases, as the wife is a 
 
 (1) Gibbs C. J., in R. v. Perry, and Raym. 1. HavvI^. b. 2, c. 48, s. 71. 
 Abbott C. J., iu R. v. Serjeant and oth- (6) Halo, P. C. 393. Bull. N. P. 
 ers, 1 Ry. & Mo. 354. 2S7. 1 East, P. C. 469. 
 
 (2) Svvendsen's case, 5 St. Tr. 465. (7) See 1 Ry. & Mo. 354. 
 
 fol. ed. S- C. 14 Howell's St. Tr. 575. (8) 1 St. Tr. 393. fol. ed. S. C. 
 
 Bull N P. 286. Ramsay's case, cited 3 Howell's St. Tr. 413. Hutton, 116. 
 
 Rep. temp. Hard. S3. 1 Hale, P. C (9) 1 Hale, P. C. 301. HawU. b. 2, 
 
 302 661 c- 46, s. 77. Probyn J , in Rep. temp. 
 
 (3) 1 Hale, P. C. 302. 4 Bl. Com. Hard. 83. Bull. N. P. 287. 1 Bl. 
 209, contra. Comm. 448. Doubted in Grigg's 
 
 (4) R. V. Perry, 1791. Hawk. P. C. case, Sir T. Raym. 1, and in Gilb. 
 b. 1, c. 40. § 13. The wife was there Ev. 120. 
 
 called /or her husband. See this case (10) 1 Str. 633; Bull. N. P. 287, 
 
 mentioned by Abbott C. J., in R. v, S. C. Jagger's case, 1 East, P. C. 
 
 Serjeant, 1 Ry. & Mo. 354. ^ 454. 
 
 (5) Mary Grigg's case , Sir T. 
 
 (t) See Note 154, p. 151. ( j) See Note 155, p. 151. (fc) See Note 156, p. 152.
 
 Sect. S.] of the Party. ci5 
 
 competent witness against the husband, so also is she a compe- Exceptions, 
 tent witness for him. (1) 
 
 A wife is permitted to exhibit articles of the peace against her Articles of 
 husband : (2) and the court will not receive affidavits on tlie part P^''"^^- 
 of the defendant, to contradict the truth of the articles exhibited 
 against him, and prevent his giving surety. (3) So, an affidavit 
 of a married woman has been admitted to be read, on an a])plica- 
 llon to the Court of King's Bench for an information against her 
 husband, for an attempt to take her away by force after articles of 
 separation : (4) and it would be strange, says I\3r. Justice Buller, 
 to permit her to be a witness to groimd a prosecution, and not af- 
 terwards be a witness at the trial. (5) 
 
 On the trial of a nian for the murder of his wife, her dying Dying declara- 
 declarations are evidence against him; (6) (/) ihey are evidence 
 also for him. It has been said that a wife may be a witness 
 against her husband in a case of high treason : (7) but there are Treason, 
 authorities the other way. (8) (m) 
 
 Where the wife has acted for the husband in his business, and Declaration of 
 by his authority and consent, he adopts her acts, and will be husband."" ^^ 
 bound by any admission or acknowledgment made by her re- 
 specting that business, (n) Thus, where the wife has made a 
 contract for her husband, which has been adopted by him, her 
 acknowledgment as to the amount of the money due will be evi' 
 deuce against him. (9) In the case of White v. Cuyler, 
 which was an action of assumpsit by a servant for wages, the 
 plaintiff was allowed to give in evidence a deed executed by the 
 wife of the defendant at the time of the hiring, which, though 
 void as a deed, was admitted in order to show the terms of the 
 contract, (10) And in a late case, in an action of assumpsit for 
 
 (1) See 1 Ry. & Mo. 354. C. 563. John's case, 1 East, P. C. 357. 
 
 (2) Bull. N. P. 287. (7) Dictum in Grigg's case. Sir T. 
 
 (3) Lord Vane's case, 2 Str. 1202, Raym. 1, cited in Gilb. Ev. 119, and 
 more fully stated from Mr. Ford's in Bull. N. P. 289. 
 
 MS. in 13 East, 171, n. (a) ; R. v. (8) Brownlow, 47. 
 
 Doherty, ib. S. t^. (9) Emerson v. Blonden, 1 Eep. 
 
 (4) Lady Lawley's case, Bull. N. N. P. C. 142. 1 Str. 527. Bull. N. P. 
 P. 287. Mary Mead's case, 1 Burr. 287. Anderson v. Saunderson, Holt, 
 543. N. P. C. 591. 
 
 (5) Bull. N. p. 287. (10) White v. Cuyler, 6 T. R. 176. 
 
 (6) Woodcock's case, 2 Leach, Cr. 
 
 (Z) See Note 157, p. 152. {m) See Note 158, p. 152. (n) See Note 169, p. 152.
 
 86 Of J ji competency of Husband or Wife [Cli. 5. 
 
 Exceptiom. goods sold and delivered at ihe defendant's shop, an offer by the 
 wife to settle the demand was admitted in evidence, as slie used 
 to serve in the shop, ant! was in the habit of Iransaciing the busi- 
 ness in his absence. (!) Upon the same principle, the wife's 
 acknowledgments, as to a debt being due for goods furnished with 
 her husband's consent for her accommodation, or for goods pur- 
 chased by her for the husband, and used by him, have been 
 held to be sufficient to take the case out of the statute of limita- 
 tions. (2) '^ (o) 
 
 Examinntion By Stat. 21 J. 1, c. 19, s. 3> &6, vvhich recites, that doubts had 
 wife!" ^^^ ' arisen upon the point, it is provided, " that after the party is de- 
 clared a bankrupt, the commissioners may exaniine his wife on 
 oath, for the finding out of the estate, goods, and chattels of such 
 bankrupt, concealed, kept, or disposed of by such wife, in her 
 own person, or by her act or means, or by any other person." 
 Before this statute, the commissioners could not examine the 
 bankrupt's wife. (3) The same power is given by the new bank- 
 rupt law. (4) 
 
 Appeal to or- Upon an appeal against an order of bastardy, in the case of a 
 
 der of bas- married woman, Lord Hardwicke and other Judges held, that she 
 tardy. ' , ° \ _ 
 
 was a competent witness to prove her criminal connection with 
 
 the appellant, tliouglj her husband was interested both in the 
 
 question and in the event of the appeal ; because such a fact, 
 
 so secret in its nature, can scarce ever be proved by other 
 
 (1) Clifford V. Burton, 1 Bing. 199. Hill, 2 Str. 1094, where, in an action 
 9 Moore, 16. of assumpsit brought l)y the husband 
 
 (2) Gregory v. Parker, 1 Campb. for wages earned by his wife, the ac- 
 394. Palethorp v. Furnish, 2 Esp. knowledgment by tho wife, as to her 
 N. P. C. 511, n. Anderson v- Saun- having been paid by the defendant, 
 derson, Holt, N. P. (^ .591. 2 Starkie, was not allowed to be evidence. 
 
 N. P. C- 204, S. C. And see 15 Ves (3) Anon, case, 1 Brownlow, 47. 
 
 459. The cases here cited appear to (4J 6 G. 4, c. 16, s. 37. 
 have overruled the case of Hall v. 
 
 * In the case of Carey v. Adkins (a) (an action against an officer of police, to 
 recover money which he had taken from the plaintiff's wife on suspicion of her 
 having got it unlawfully). Lord Ellenborough admitted the account given by her, 
 respecting the money, on her examination before a magistrate, to be given in 
 evidence on behalf of the defendant : " the money," said Lord Ellenborough, 
 " appears never to have been in the husband's possession, and, aa tho wife had 
 the exclusive custody and management of it, he must be bound by what she said 
 concerning it." 
 
 (a) 4 Campb. 94. 
 
 (o) See Note 160, p. 162.
 
 Sect. 5.] oj the Party. 87 
 
 evidence. (1) And by a parity of reason, said Lord Ellenborough Excep ti ona. 
 in the case of the King v. LufFe, it should seem, if she be admit- 
 ted as a witness of necessity, to speak to the fact of the adulterous Adultery, 
 intercourse, it might also perhaps be competent for her to prove, 
 that the adulterer alone had that sort of intercourse wiih her, by 
 which a child might be produced within the limits of time which 
 nature allows for parturition. But this is only from the necessity 
 of the thing: she is not competent lo prove any other fact, as 
 want of access, (2) other witnesses may be reasonably supposed Non-accesi. 
 capable of proving. She cannot prove want of access even after 
 the husband's death. (3) This rule is founded on the broad prin- 
 ciple of public policy, independently of any possible motives of in- 
 terest in the particular case. (4) (p) 
 
 On the appeal against the removal of a woman, as the widow Appeal against 
 
 /•tT-.! 1- r- -1 c \ • \ • order of remo- 
 
 of A. B. deceased, prmia lacie evidence oi the marriage having ^^\ 
 
 been produced on the part of the respondents, the Court of King's 
 
 Bench determined, that the woman was a competent witness, on 
 
 the part of the appellants, to disprove the marriage. (5) 
 
 A wife may be a witness, in an action between third persons Action be- 
 
 • (- 1 1 1 1 I I I tween third 
 
 not immediately affecting the mteiest ot the husband, though her persons, 
 evidence may possibly expose him to a legal demand: as, in an 
 action between third persons for goods sold and delivered, to 
 prove that the goods had been sold not on the credit of the 
 defendant, but on her husband's credit. (6) This evidence, it 
 may be said, was in some measure against the husband, though 
 he was not a party in the suit. On the other hand, to reject her 
 evidence in such a case would be a hardship on the defendant, 
 who may have no other means of defending himself against an 
 unjust demand: and, though upon her testimony the defendant 
 might have a verdict, and an action might afterwards in conse- 
 quence be brought against the husband, she would not then be 
 
 (1) R. V. Reading, Rep. temp. (5) R. v. Bramley, 6 T. R. 330, 
 Hardr. 82. R. v. Bedell, Andr. 8 Gilb. R. v. St. Peter's, Burr. Sett. Cas. 25, 
 Ev. 139. R. V. Luffe, 8 East, 285. S. P. 
 
 (2) Ante, p. 80, (3) R. v. Rooke, (6) Williams v. Johnson, by King 
 1 Wils. 340. R. V. Kea, 11 East, 132. C. J. 1 iitr. 504. Bull. N. P. 287, 
 
 (3) R. V. Kea, 11 East, 132. S. C. Vid. ante, p. 85. 
 
 (4) 11 East, 132. 8 East, 202. 
 
 (p) See Note 161, p. 163.
 
 S8 Of Incompetency of Husband or Wife [Ch. 5. 
 
 admitted as witness, nor could her evidence in the first suit be 
 j)roduced against him. 
 
 In an action of trover by a carrier, for a box, which had been 
 delivered to the defendant by mistake, the plaintiff called the 
 owner's wife to prove what the box contained; but Holt C. J. 
 refused to hear her testimony, on the ground that the verdict in 
 that action, with oath of what the carrier's witness swore, might 
 be given in evidence to prove the value of the goods in a subse- 
 quent action brought by the husband against the carrier. (I) But 
 it seems questionable, how the verdict in this cause could be af- 
 terwards used as evidence by the husband; and the husband ap- 
 pears not to be immediately interested in the event of the carrier's 
 action; for whether the plaintiff succeed or fail, he would be equal- 
 ly liable to the owner of the goods, [q) 
 
 Evidence of a In the case of Campbell v. Tremlow, (2) which came before 
 whh^the'parfv *^® Court of Exchequer, on a motion to set aside an award, one of 
 as wife. the grounds of the application was, that the arbitrator had re- 
 
 jected the evidence of a woman called on the part of the plaintiff, 
 who had cohabited with him for several years, and passed as his 
 wife, but who would have stated, that she had never been mar- 
 ried to him. The point was much argued at the bar. The 
 court, considering it a doubtful question (as the report states), de- 
 clined giving any opinion, as it was unnecessary for the determina- 
 tion of the case: and they refused the motion, on the ^-ound, 
 that the opinion of the arbitrator was final and conclusive, 
 all matters both of law and fact having been left to his de- 
 cision. The Lord Chief Baron Richards cited a case, before 
 Lord Kenyon on the Chester circuit in the year J 782, where, 
 on a trial for forgery, the prisoner called a woman as his witness, 
 whom he had himself in court represented to be his wife, but 
 afterwards, on hearing an objection taken to her competency, 
 denied that she was married to him, and Lord Kenyon would 
 not permit him to call her, after having represented her as his 
 wife. (?') 
 
 (1) Tiley v. Cowling, Lord Raym. but there the plaintiff sued for the 
 
 744. Bull. N. P. 243. In the case of benefit of the wife, though the hus- 
 
 Davi3 V. Dinwoody, before cited, p. 82, band was not a party to the suit, 
 
 the action was between third parties; (2) 1 Price, 81. 
 
 (g) See Note 162, p 153. (r) See Note 163, p. 153. 
 
 1
 
 Sect. 4.] Of Admissions by a Party to the Suitf ^c. 
 
 89 
 
 Sect. IV. 
 
 Of the effect of Admissions hrj a Parly to the suit^ or by his Agent^ 
 against the Parlxfs Interest, (s) 
 
 The statements and representations of parties to a suit, made by 
 them against their Interest, are evidence against them (t) and in 
 many cases they will be the strongest evidence. Upon this princi- 
 ple, the free admissions of one of the parlies to a suit on the mat- 
 ter in issue, and the voluntaiy confessions of a prisoner under a 
 criminal charge, are always received in evidence against the per- 
 son who made them. 
 
 First, with respect to admissions. 
 
 Admissions by a party to the suit against his interest are evi- •^*^™'^*'°°^y 
 •' ' •' ^ a party to iuit. 
 
 dence in favor of the other side, whether made before or after the 
 commencement of the action, (tt) whether in writing (v) or by parol. 
 The recital of a fact in the counterpart of an indenture is evidence 
 against the party by whom the deed is executed. (1) (w) So, a 
 grant to a corporation by a certain name is evidence, against those 
 claiming under the grantor, that the corporation was at the time 
 known by that name. (2) Answers in Chancery are evidence in 
 trials at law, against the parly that made them; (3) (x) and very 
 strong evidence as they are delivered in upon oath. The examina- 
 tion of a party, taken before commissioners of bankrupt, is evidence 
 against him, although the questions may have been improperly put 
 to him with a view to the action (4), and though he might have 
 demurred to them as subjecting him to penaliies. (.')) (y) 
 
 The declarations of a £;uardian are not admissible in evidence Admission by 
 ^ 1 • A ■ r 1 guardian of 
 
 agamst a mmor, who sues by his guardian. (6) And the mfant s party not evi- 
 
 answer in Chancery by his guardian cannot be read as evidence "®"°*' 
 
 (1) Burleigh V. Stibbs, 5 T. R. 465. (.'5) Smith v. Beadncil. 1 Campb, 
 
 (2) Mayor, &c. of Carlisle v. 131a- 30. 
 
 mire, 8 East, 493. (6) Cowling v. Ely, 2 Starkie, N. P. 
 
 (3) Bull. N. P. 237. Doe dem. C. 3ti6, by Abbott C. J. Webb v. Smith, 
 Digby V. Steel, 3 Campb. 115. I Ry. & ".Mo. lOo. 
 
 (4) Stoclifloth V. De Tostet, 4 
 Campb. 10. 
 
 (8) S«c Note 164, p. 15.3. (/) See Note 1G5, p. 151. (w) Sec Note 1C6, p. 159. 
 (f) See Note 167, p. 159. (w) See Note IGS, p. ICO. (x) See Note 169, p. 161. 
 (y) See Note 170, p. 161. 
 
 Vol. I. 12
 
 90 Of Admissions by a Pariy to ike Suit, [Ch. 5, 
 
 against ihe infant (1) (2)^ '^ is not in reality the answer of the in- 
 fant, but of the guardian; for the guardian only is sworn ; and the 
 guardian has authority to sue for the infant's benefit, not for his 
 prejudice. We have before seen, that the guardian is not himself 
 competent to give evidence, being liable to the costs of the suit (2) ; 
 and for this reason, in one case, his declarations were improperly 
 admitted. (3) 
 
 pany°"*°^' Admissions are evidence in favor of the other side, whether made 
 
 by the real party on the record, or by a nominal party who sues as 
 a trustee for the benefit of another, (4) (a) or whether made by the 
 party who is really interested in the suit, though not named on the 
 record. (5) (6) 'i'he following examples will illustrate the several 
 parts of this rule. 
 
 By party suing In the case of Bauernian and another v. Radenius, (6) which 
 another^ '° ^^'^^ ''^" aclion by the shippers of goods against the captain of a 
 ship, for not delivering the goods in proper condition, a letter 
 written by the plaintifis was given in evidence on the part of the 
 defendant, in which they entirely exculpated the defendant from 
 all misconduct; and it appeared also from the letter, that the 
 goods were shipped on the risk of third persons, and that the 
 plaintiffs were not really interested in the suit: the counsel on 
 the other side contended, that the parties really interested ought 
 not to be concluded by the admission of the plaiiitiffs, who were 
 merely nominal parties in the action: Lord Kenyon was of a 
 different opinion, and the plaintiffs were nonsuited. The Court 
 of King's Bench afterwards affirn)ed the nonsuit, Mr. Justice 
 Lawrence on that occasion said, " Van Dyck and Co., (he per- 
 sons on whose risk the goods were shipped, aj-e in this difficulty; 
 the present plaintifis either have or have not an interest; but it 
 must be considered that they liave an interest, in order to sup- 
 port the action; and if they have, an admission made by them, 
 that they have no cause of aclion, is admissible evidence. I have 
 looked into the books, 10 see if I could find any case in which 
 
 (1) By the opinion of all the judges of (4) Bauerman v. R;ideniua, 7 T. R. 
 K. B. and C. P. in Ecc lesion v. PeUy. 664. Craib v. D'Aeth, ib. 670, n. 
 Carih. 79. Gilb. Ev. 44. 3 I>. Will. (5) R. v. Hardwiclv, 11 East, 578, 
 237. n. (E.) 589. 
 
 (2) See ante, p. 59. (6) 7 T. R. 664. 
 
 (3) James v. Hatfield, I Str. 547, 
 
 («) See Note 171, p. 162. (a) See Note 172, p. 163. (b) Sea Nota 173, p. 1«T.
 
 Sect. 4.] or by his Agent. 91 
 
 it has been llolden, that the admission of a plaintiff on the record 
 is not evidence, but have found none," * 
 
 In an action of debt upon a bond conditioned to pay money to By person in- 
 
 terested 
 L. D., for whose benefit the action was brought, the defendant though not 
 
 proved, that L. D. had said in a conversation respecting this bond, P^'''y •'" ^^o 
 that the defendant owed nothing; upon which the jury found for 
 the defendant. On a motion for a new trial, it was argued, that 
 the declarations of L. D., who was not a party to the action, ought 
 not to affect the plaintiff, and affidavits were offered to explain L. D.'s 
 evidence; but the court said, that the affidavits were inadmissible, 
 and that the case was to be considered, as if L. D. was the plain- 
 tiff, the action being for L. D.'s benefit. (1) 
 
 In an appeal against the removal of a pauper, declarations by a By rated in- 
 rated inhabitant of either parish, concerning the facts in issue, have """^°^ 
 been adjudged to be admissible in evidence against the other rated 
 inhabitants of his parish: (2) on the ground that the rated inhabi- 
 tants are the parties directly and immediately interested in the 
 event of the proceeding, although the appeal is entered in the 
 names of the parish-officers. (3) (c) 
 
 Upon the same principle, declarations by the petitioning ere- By petitioning 
 
 ditor of a bankrupt (v/ho is also assignee under the coQimis- 
 
 sion,) are admissible in an action against a sheriff, the assignees 
 
 having given instructions for the defence, and thus appearing to 
 
 be the real parties to the action, (4) So, in an action by the By owner of 
 
 ship. 
 
 (1) Hanson V Parker, 1 Wils. 257. 10 East, 395. These cases were de- 
 Davis V. Diuwoody, supra, p. 82. cided before the st. 54 G. 3. c. 170. 
 
 (2) R. V. Hardwick, 11 East, 578. (4) Dowden v. Fowle, 4 Campb. 
 R. V. Whitley Lower, 1 Maule & 38. Young v. Smith, 1. Esp. N. P. 
 Selw. 636. C 121. 
 
 (3) 11 East, 589. R. v. Woburn, 
 
 • I« the nisi prius case of Davis v. Ridge and others, 3 Esp. N. P. C. 101., which 
 was an action by a judgment-creditor of P. P. on an award, and for money receiv- 
 ed by the defendants as trustees of P. P., Lord Eldon is reported to have ruled, 
 that admissions by one of the trustees, of his having money of the trust-estate in 
 his bands, were not binding upon the others, the defendants beiug only trustees, 
 and not all personally liable. And in an action by the Corporation of London v. 
 Long, 1 Campb. 22., where the question related to the powers of a city-officer. 
 Lord Eilenborougb is said to have held, that the declarations of an indifferent indi- 
 vidual of the corporation were not admissible, but that he would admit whnt the 
 officer himself had been heard to say upon tho subject. 
 
 (€) See Note 174, p. 168.
 
 92 
 
 Of Admissions by a Party io the Suit, [Ch. 5. 
 
 By person in- 
 terested iu 
 policy. 
 
 By partner, 
 party to the 
 suit. 
 
 master of a ship for iVeight, the declarations of the owner of the 
 ship are admissible against the plaintiff, as the action is brought 
 for the owner's benefit. (1) 
 
 An action upon a policy may be brought in the name of the 
 person who cfi'ected it, though he bo not the person actually inter- 
 ested; yet the persons interested are so far looked upon as parties 
 to the suit, that the declarations of any of them are admissible in 
 evidence against the plainlifT, and what would be a defence against 
 them as in many instances a defence against the plaintiff. (2) 
 
 It appears to be a general principle, that, in a civil suit by or 
 against several persons, \^ho are proved to have a joint interest in 
 the decision, a tleclaraiion made by one of those persons, concern- 
 ing a material fact within his knowledge, is evidence against him, 
 and against all who are parlies with him in the suit. (3) In an 
 action of covenant against two defendants, the affidavit of one of 
 them may be given in evidence against both. (4) So, in an action 
 by several partners against the defendant for the non-performance 
 of an agreement, a declaration by one of the partners suing, that 
 the goods, to which the agreement related, were his separate pro- 
 perty, is evidence against all the plainiifis suing as upon a joint 
 contract. (5) In an action against persons as partners, the part- 
 nership being first proved, an admission by one of the defend- 
 ants is admissible against all. (6) And an admission by one 
 defendant of his j)artner£hip W'ith the co-defendants, who were su- 
 ed with him as acceptors of a bill of exchange, and who had been 
 outlawed, has been received as proof against him of a joint prom- 
 ise by all. (7) (cZ) 
 
 By partner, 
 not a party. 
 
 The rule wlih regard to the admissions of partners has been 
 extended still further. In an action by a creditor against some 
 
 (1) Smith V. Lyon, 3 Campb 4G5. (3) 1 1 East, 589. 
 
 See Harrison v. Vallunce, 1 Bing 45, (4) Vicary's case, Giib. Ev. 51. 
 
 which waa decided o:i the .-julhority (5) Liicus and others v. De la Coar, 
 
 of the cases above cited, but seems to 1 Maule & Selw. 249. 
 
 be a much stronger case. (6) Nicholls v. Dowding and Kemp, 
 
 (2) By Lord Ellenhotough, in Bell I StarUie, N. P. C. 81. 
 
 V. Ansley, 16 East, 143. See also (7) Sangster v. Mazarredo and oth- 
 
 the cabe of Duke v. Aldridge, cited ers, I Starlde, N. P. C. 161. 
 by counsel in Baucrman v. lladenius, 
 7 T. R 665. 
 
 {d) See Note 175, p. 170.
 
 ?ect. 4.] or by his Agr,nt. ^^ 
 
 of a partnership firm, one of whom pleaded his certificate, and the 
 plaintiff entered a nolle prosequi as to him, the answer of this 
 partner to a bill filed against him by other creditors was received as 
 evidence against the defendants, not indeed to prove the partner- 
 ship, but, that being established, as an admission against those, who 
 were as one person witlih im in interest. (I) And the admission of 
 a partner, though not a party to the suit, is evidence against anoth- 
 er partner, who is sued as to joint contracts during the partnership, 
 whether made after the determination of the partnership (c) or be- 
 fore. (2) (/) But the statement of one who has been admitted 
 into partnership subsequently to the transaction in question, is 
 clearly not admissible in evidence as to such antecedent transac- 
 tion. (3) 
 
 In Whitcomb v. Whiting, (4) which was an action on a joint By joint debt- 
 
 . , , or not a party, 
 
 and several promissory note, given by the deiendant and others, 
 
 to which action the defendant pleaded the general issue and the 
 statute of limitations, the Court of King's Bench determined, that 
 proof of payment of interest and part of the principal within six 
 years, by one of the others, who was not sued, would take the case 
 out of the statutes. Lord Mansfield said, " payment by one is pay- 
 ment by all, the one acting virtually as agent for the rest : and in 
 the same manner, an admis^sion by one is an admission by all." 
 The payment or acknowledgment in this case, it is to be observed, 
 was m.ade by one who was jointly liable with the defendant, and 
 originally liable. (5) In the recent case of Parham v. Raynal, (6) 
 the decision in that of Whitcomb v. Whiting has been reconsider- 
 ed and confirmed, (g) 
 
 Such is the rule respecting admissions in the case of joint Admission by 
 
 , 1 1 t I . co-trespasser, 
 
 contracts, or where several persons have one and the same m- 
 
 terest in the subject matter. But the same rule cannot be applied 
 
 to actions of trespass or to criminal proceedings. In an action 
 
 of trespass against several defendants, an admission by one of 
 
 the defendants is not evidence against the others to prove the 
 
 fact of their being co-trespassers ; and, even where that fact is 
 
 (1) Grant V. Jackson, Peake, N. P. (3) Calt v. Howard, 3 Stark. N. P 
 C. 203, by Lord Kenyon C. J. See C. 5. 
 
 Thwaitea V. Richardson, Peake, N. P. (4) 2 Doug. G61. 
 
 ^•^„6-„, . (5) See 1 Barn. & Cress. 169. 2 
 
 (2) Wood and others t. Braddick, Barn. & Cress. 29. 
 1 Tannt. 104. (6) 2 Bing. 306. 
 
 («) ?io Note 176, p. 173. (/) See Note 177, p. 174. {g) See Note 1787 p. 174.
 
 ^•i Of Admissions by a Party lo Kie Suit, [Ch. 5. 
 
 fully established, it seems very doubtful whether any admissions or 
 declarations made by one of the defendants, as to the joint motives 
 or designs of the party, can be received as evidence against the 
 others, except so far as they accompany tlic act, or may be con- 
 sidered as forming a part of the transaction. The rule has in one 
 case been laid down incidentally with greater latitude, and it has 
 been said, (I) that alihoug'i an admission by one of several de- 
 fendants in trespass will not establish the others to be co-trespass- 
 ers, yet, " if that is proved by other competent evidence, the dec- 
 laration of the one, as to the motives and circumstances of the 
 trespass, will be evidence against all who are proved to have com- 
 bined together for the conmion object." Perhaps, on consider- 
 ation, it may appear that the rule is to be understood with some 
 limitation ; and from analogy to the principle established by the 
 greatest authorities in cases of conspiracy, the true limitation of 
 the rule appears to be this, that such declarations only are admissi- 
 ble as have been made wiih reference lo a concerted plan, and in 
 pursuance of a common object ; and that declarations which have 
 not been made with reference lo that object, and are not strictly a 
 part of the transaction in question, cannot be admitted as evidence 
 against co-trespassers, (/i) 
 
 Acts and de- In prosecutions for conspiracies, it is an established rule, that, 
 co-conspira- where several persons are proved to have combined together for the 
 '^'''* same illegal purpose, any act done by one of the party, in pursu- 
 
 ance of the original concerted plan, and with reference to the com- 
 mon object, is, in the contemplation of law, as well as in sound rea- 
 Acta, son, the act of the whole party: and, therefore, the proof of such 
 
 act will be evidence against any of the others, who were engaged 
 in the same general conspiracy, without regard to the question, 
 whether the prisoner is proved to have been concerned in that 
 particular transaction. This kind of evidence was received on the 
 trial of Lord Stafford and of Lord Lovat, on the trials for high trea- 
 son at the Old Bailey in 1794, and in the case of Stone in 1796: 
 in which las^ case the rule was completely settled. 
 
 (1) By Lord Ellenborough, R. r. Hardwick, 11 East, 685. 
 
 (A) See Note 179, p. 17«.
 
 Sect* 4.] or by his Agent. ^^ 
 
 In that case fl), evidence liavina: been civ; n, which warranted Declaration* 
 ' , . , . by co-con- 
 
 the jury to consider, wliether the prisoner was engnged ni a spirators. 
 
 conspiracy for treasonable purposes, it was determined, that a ' 
 
 letter, written by one of the conspirators in pursuance of the L*^"®"^- 
 
 common design (although tl)e letter had not been traced into 
 
 the hands of the prisoner, or to his knowledge), was admissible 
 
 in evidence, as the act of the prisoner himself. The acts of the 
 
 several conspirators, who are engaged with the prisoner in one 
 
 common object, are evidence against him, though he may not 
 
 have been directly a party to them; they are evidence, as acts 
 
 connected and in conformity with his own acts. " He who plans 
 
 the thing," said Mr. Justice Bayley, in his charge to the grand 
 
 jury in Watson's case, " or who devises the means by which it 
 
 is to be efiected, or draws in otiiers to co-operate, or does any 
 
 other act preparatory to the execution of the thing proposed, is 
 
 as much a principal as he who executes that thing: and provided 
 
 a man once comes into the common purpose and design, every 
 
 previous act done with a view to that purpose and design, and 
 
 every subsequent act, is as much his act, as if he had done it 
 
 himself." (2) 
 
 The same rule, subject to the same limitations, must apply Declaratia?, 
 to the declarations of conspirators, as well as to their acts. 
 Any declarations made by one of the party, in pursuance of 
 the common object of the conspiracy, are evidence against the 
 rest of tlje party, who are as much responsible for all that has 
 been said or done by their associates in carrying into effect the 
 concerted plan, as if it had been pronounced by their own 
 voice or executed by their own hand. These declarations are 
 of the nature of acts: they are, in reality, acts done by the 
 parly; and generally they are far more mischievous than acts, 
 which consist only in corporal agency. All consultations, there- 
 fore, carried on by one conspirator, relative to the general 
 design, and all conversations in his presence, are evidence against 
 another conspirator, though absent. What the effect of such 
 
 (1) R V. Stone, 6 T. R. 627. I East, (2) Watson's case, 32 Howell's St. 
 P. C. 97, 98. 25 Howell's St. Tr. Tr. 7. Brandreth's ease, 32 Howell't 
 1311. S. C. Hardy's Tri.il, 24 St. Tr. S54. 857. Bedford v. BirleVi 
 Howell's St. Tr. 437. 451. 700. Home 3 Stark. N. P. C. 85. 
 Tooke's Trial, 25 Howell's tit. Tr. 
 127. 243. Stone'8 case, ib. 1268— 
 1276. 1311.
 
 96 Of Admissions by a Party to the Suit, [Ch. 5. 
 
 Dtclarationi evidence will be, as C J. Eyre observed, on the discussion of a 
 
 by co-con- . r i ■ i • i • 1 1 
 
 ■piiatoH. question of this kind in Hardy's trial (1), must depend on a 
 
 variety of circumstances, such as, whether he was attending to 
 
 the conversation, whelher lie approved or disapproved: but stil! 
 
 such conversations are admissible in evidence. 
 
 Hardy's case. A question arose on the trial of Hardy (2), as to the admis- 
 sibility of a letter written by one of the conspirators to another 
 person in a distant |)art of t!io kingdom, who was also proved 
 to be party in the same cons|)iracy. This was a le'ter written 
 by the chairman of a meeting in London to a dele^'ite sent 
 by that meeting into Scotland, though not received by him : 
 it was stated to contain encouragement to him to proceed in 
 the cause in which he was engaged by the direction of the 
 meeting in London, and that meeting was proved to have been 
 composed, among others, of the prisoner, the writer of the letter, 
 and the person to whom it was addressed. All the judges held 
 the letter lo be admissible, excepting the Lord Chief Justice 
 Eyre, who thought it could not be admitted against the prisoner, 
 as it had not i)een recei^'ed by the person to whom it was writ- 
 ten, and might, perhaps, never^ have gone out of the writer's 
 hands. But the other judges were of opinion, that the letter, 
 being addressed by one cons))irator to anollier conspirator, and 
 having relation to the con;^piracy (not merely a bare description 
 to a stranger,) this was a complete act in that single conspirator, 
 and the letter, therefore, ought to be read against the prisoner, 
 as showing the nature and tendency of the conspiracy, though 
 the letter should be intercepted, and though it should never reach 
 the person for whose perusal it was intended. 
 
 Wauon'scase. In the late trial of Watson (3), soine papers containing a 
 variety of plans and lists of names, which had been found in 
 the house of a co-consj)irator before the apprehension of the 
 prisoner, and which had a reference to the design of the con- 
 spiracy, and were in furtherance of the plot, were held to be 
 admissible evidence against the prisoner: all the judges were of 
 opinion, that these papers ought to be received, there being in 
 
 (1) 24 Howell's St. Tr. 704. (3) 32 Howell's St. Tr. 84S, 850. 
 
 (2) 24 Howell's St. Tr. p. 453—477. 2 Starkie, N. P. C. 140.
 
 Sect. 4.] or by kis Agent, 97 
 
 this case strone presmnplive evidence, that they were in the house Declarations 
 
 I r • II- 1 • l^y co-con- 
 
 of the co-conspiiator before the prisoner s apprehension, and in spirators. 
 
 the same state, in which they were afterwards found; and that 
 this circumstance very materially distinguished the present case 
 from Hardy's case, (cited by the prisoner's counsel,) where the 
 papers were found after the prisoner's apprehension in the pos- 
 session of persons, who possibly might not have obtained the 
 papers till afterwards; whereas, in the present case, the room, 
 iti which the papers were found, had been locked up by one of 
 the conspirators. 
 
 A question also arose, in the same case (1), as to the admis- ^^^*°"'*"'®' 
 sibility of another paper, found among those before mentioned, 
 which contained written questions and answers of a description 
 calculated to excite mutiny in the army; one objection to this 
 evidence was, that such a written paper could not be admitted, 
 aj there had been no proof of its ever having been printed or 
 proposed to be printed, or that any attempt had been made to 
 circulate it; and Sidney's case was cited as an authority. But 
 the judges held, that the case then before them was clearly 
 distinguishable from Sidney's case: and Mr. Justice Abbott 
 particularly stated, that the paper, in that case, was not only 
 an unpublished paper, but appeared to have been composed 
 several years before the crime was supposed to have been com- 
 mitted, and that the true objection v/as, not that the paper was 
 unpublished, but that it had no reference to the treasonable 
 practices charged in the indictment. The paper, produced in 
 Watson's case, was afterwards withdrawn by the Attorney- 
 General, on account of some doubt expressed by the Court, 
 whether it had been clearly proved, that the paper in question 
 was intended to have been used in furtherance of the common 
 purpose. 
 
 What one of the party may have said, not in furtherance of Declarations 
 ' . not connected 
 
 the plot, but as a mere relation of sonie past transaction, or as with general 
 
 to the share which some of the others have had in the execution P'^"- 
 
 of the common design, cannot, it is conceived, be admitted in 
 
 evidence to affect other persons. On the trial of Hardy, for 
 
 (1) 32 Howell's St. Tr. S58. 2 Starkie, N, P. C. HI. 
 
 Vol. I. 13
 
 98 Of Admissions by a Party to the Suit, fCh. 5. 
 
 Declarations ]^\p\^ treason (1), a question arose as to the adn/issibility of a 
 
 bv co-conspir- , ° . , mi i n i i • i 
 
 ators. letter written by inelwall, and sent to a inu-d person not con- 
 
 r~~ nected with the conspiracy, containing seditious songs, vvliich 
 
 Hardy's case, the letter Stated to have been composed and sung at the anniver- 
 sary meeting of the London Corresponding Society, of which 
 society the prisoner and the writer of the letter were proved to 
 be members. The argument in favor of the evidence was, that 
 the letter was an act done in furtherance of the conspiracy; the 
 objection was, that the letter contained merely a relation by the 
 writer, that certain songs had been sung, which could not be 
 evidence against the prisoner. The majority of the Court decided 
 against the admissibility of the letter. Tiie Lord Ch. Justice 
 Eyre, the Lord Chief Baron iMacdonald, and Mr. Baron 
 Hotham were of opinion, that the letter could not be received. 
 Mr. Justice Buller (with whom Mr. Justice Grose agreed, in 
 thinking it admissible), said, the letter ought \o be received in 
 evidence, for the purpose of shewing what was the nature and 
 e.xtent of the conspiracy; that in Damaree's and Purchase's 
 cases, evidence was received of what some of the parties had 
 done, when the prisoner was not there; that on the trial of 
 Lord Southampton, something said by -Lord Essex, previous 
 to the prisoner's being there, was admitted as evidence; and 
 that, in Lord George Gordon's case, evidence of what different 
 persons of the mob had said, though he was not there, had been 
 admitted. Biu ihe Lord Chief Justice Eyre, and the oiher 
 judges, considered the letter, not as an act done in prosecution 
 of the plot, but as a mere narrative of what had passed. " Cor- 
 respondence," said the Chief Justice, " very often makes a part 
 of the transaction, and in that case the corresporidence of one 
 who is a party in a conspiracy would undoubtedly be evidence, 
 that is, a correspondence in furtherance of the plot; but a corres- 
 pondence of a private nature, a mere relation of what had been 
 done, appears a different thing." And with respect to the cases 
 alluded to by Mr. Justice Buller, theCh. Justice observed, " Li the 
 cases of Damaree, and Lord George Gordon, the cry of the mob 
 at the time made a part of the fact, part of the transaction, and 
 therefere such evidence might properly, be received." (i) 
 
 (1) 24 Howell's St. Tr. 452. 475. See 32 Howell's St- Tr. 351. 
 (i) See Note 180, p. 177.
 
 Seer. 4.] or by his Agent. 99 
 
 The statement or representation of an a^ent in making an The statement 
 
 . r 1 • , of an agent, 
 
 agreement, or in doing an act withui the scope ot his autho- 
 rity, is evidence against the principal himself, and equivalent 
 to his own acknowledgment (1): for what the agent says may 
 be explanatory of the agreement, or determine the quality of 
 the act which it accompanies, and must therefore be as binding 
 on the principal, as the act or agreement itself. To prove 
 such a representation, the opposite party is not obliged to call 
 the agent, but may establish it by other evidence. Thus, what 
 an agent says at the time of a sale, which he is employed to 
 make, is evidence as part of the transaction of selling; but the 
 principal is not bound by the representation of the ^agent at an- 
 other time. (2) 
 
 In the case of Biggs v. Laurence, (3) whi^^li was an action for 
 goods sold and delivered, Mr. Justice Buller admitted a written 
 paper, by which the defendant's agent acknowledged the receipt 
 of the goods, as evidence against the principal; and on that 
 evidence the plaintiff recovered. However, it was on one occa- 
 sion stated by counsel in argument (4) , that Lord Kenyon since 
 that case had frequently ruled the contrary, without its ever 
 having been questioned; and this statement seems to have been 
 acquiesced in by Lord Kenyon (5), who said, " that it was not 
 the point, upon which the case was afterwards argued or deter- 
 mined, on the motion for a new trial," meaning the point, that 
 such a receipt could be admitted in evidence. It does not appear 
 from the case of Biggs v. Laurence, whether the agent's ac- 
 knowledgment, of having received the goods, was made at the 
 time of deliveiy, or on what other occasion: though, upon this 
 fact, according to the cases above cited, particularly the case of 
 Fairlie v. Hastings, in which the subject was fully discussed by 
 the Master of the Rolls, the admissibility of such evidence may 
 be found materially to depend. 
 
 (1) See the judgment of Sir W. Kent v. Lowen, I Campb. 177. 180. 
 Grant, Master of the Roils, in Fariie Prideaux v. Collier, 2 Starkie, N. P. 
 ▼. Hastings, 10 Ves. 127., and 4 Taunt. C. 67. Drake v. Marryat, 1 Barn. & 
 619. Cres?. 473. 
 
 (2) Helyar v. HawUe, 5 Esp. N. (3) B T. R. 454. 
 
 P. C. 74. Pete V. Hague, 5 Esp. N. (4) Bauerman v. Radenius, 7 T. R. 
 
 P. C. 135. Alexander v. Gibson, 665. 
 
 2 Campb. 555. Palethorp v. Furnish. (5) See 10 Ves. 128. 
 
 2 Esp. N. P. C. 611. n. See also
 
 100 
 
 Of Admissions by a Party to the Suit, [Cii. 5. 
 
 Statement of 
 agent. 
 
 In one case, indeed (1), Lord Kenyon C J. is said to have 
 refused to admit an agent's letter as evidence of an agreement 
 against the principal, holding, that the agent himself ought to 
 be examined. " If the agreement," said the Master of the 
 Rolls (2), adverting to this case, " was contained in the letter, 
 I should have thought it sufficient to prove that the letter was 
 written by the agent: but if the letter was offered as proof of the 
 contents of a pre-existing agreement, then it was properly re- 
 jected." And the Court of Common Pleas has determined, after 
 much argument, in the cases of h ahl v. Jansen (3), and Lang- 
 horn V. Allnut (4), that the letters of an agent abroad to his 
 principal, contain! ng a narrative of the transaction in which he had 
 been employed, were not admissible in evidence against the 
 principal, as the mere representation of the agent. The general 
 rule on the subject was there fully recognized and confirmed. 
 " When it is proved," said the Chief Justice, " that A. is agent 
 to B., whatever A. does, or says, or writes, in the making of a 
 contract as agent of B., is admissible in evidence, because it is 
 part of the contract, which he makes for B., and which there- 
 fore binds him, but it is not admissible as the agent's account of 
 what passes." (5) Such declarations are admitted in evidence, 
 not for the purpose of establishing the truth of the fact stated, 
 but as representations, by which the principal is as much bound 
 as if he made them himself, and which are equally binding, 
 whether the fact staled be true or false. 
 
 Letter by 
 clerk. 
 
 A letter written by a clerk, whose business it is to write in the 
 name of his employer, will have precisely the same effect, as if 
 written by the principal himself. Thus, a letter from the de- 
 fendant's clerk, informing the plaintiff, that a policy had been 
 efiected, was held to he good evidence of the existence of the 
 policy; and the defendant was not allowed to prove that the 
 letter had been written by mistake, and that the policy had not 
 been made. (6) 
 
 Reference to 
 third person. 
 
 If one party refers to another, for information on a disputed fact, 
 
 (1) Maesters v. Abraham, 1 Esp. (4) 4 Taunt. 511. Reyner v. Pear- 
 N. P. C. 375. Bon, 4 Taunt. 663. S. P. 
 
 (2) 10 Ves. 127. (5) 4 Taunt. 519. 
 
 (3) 4 Taunt. 565. (6) Harding v. Carter, Park. Ins. 4.
 
 Sect. 4.] or by his Agent. 101 
 
 to n third person as authorised lo answer for him (1), or employs Statement of 
 
 an agent to make certain propositions respecting a transaction 
 
 between himself and another (2), he is bound by what his agent 
 says or does within the scope of his authority, as much as if it 
 had been done or said by himself. Thus, for example, in an 
 action for goods sold and delivered, where it appeared at the trial, 
 that in a conversation between the plaintiff and defendant, the 
 former asserted that he had delivered the goods by one C, and 
 the defendant replied, " If C. will say, he did deliver the goods, 
 1 will pay for them," the plaintiff was allowed to give in evidence 
 C.'s answer respecting the matter referred lo him. (3). 
 
 In the case of Fabrigas v. Mostyn, a point arose, which may 
 serve as another example to illustrate the rule here laid down. (4) 
 There, a witness who had been employed by the defendant to 
 convey certain proposals to the plaintiff, explained them to him 
 by an interpreter, from whom also he received the answer: the 
 question was, whether the words of the interpreter could be ^iven 
 in evidence by the witness, as ti)e answer of the plaintiff: or 
 whether the interpreter himself ought to be called, as the witness 
 understood neither the questions put to the plaintiff, nor the 
 answer made by him. But Mr. Justice Gould ruled, that the 
 evidence of the witness was clearly admissible, and sufficient. 
 Here the interpreter was the accredited agent of the parties, 
 acting within the scope of his authority, and in the execution of 
 his agency, (j) 
 
 It must be be remembered, that the cases, in which the decla- General 
 rations of an agent have been admitted against the principal, are 
 exceptions to that general rule, which requires evidence to be 
 given upon oath: and the exception is confined to such state- 
 ments, as are made by him, either at the time of his making 
 an agreement about which he is employed, or in acting within 
 the scope of his authority. " Except in one or the other of 
 these ways," said the Master of the Rolls in Fairlie v. Hast- 
 
 (1) Daniell v. Pitt, 1 Campb. 366. Inncs, 1 Campb. 364. Brock v. Kent, 
 Lloyd V. Wiilan, 1 Esp. N. P. C. 178. ib. n. 366. Burt v. Palmer, 5 Esp. 
 
 (2) Gainsford v. Grammar, 2 N. P. C. 145. Garnet v. Ball, 3 Stark. 
 Campb. 9. N. P. C. 160. 
 
 (3j Daniell v. Pitt, 1 Campb. S66. (4) 11 St. Tr. 171. 
 « Esp. N. P. C. 74. S. C. Williams v. 
 
 (;■) See Note 181, p. 180.
 
 102 Of Admissions by a Party to the Suit, [Ch. 5. 
 
 Statement of ings(l), "T do not see how they can be evidence against the 
 
 principal:'' and therefore in (hat case, (where the fact, sought to 
 
 be established, was, that a bond had been executed by the de- 
 fendant to the plaintitT, which the defendant had got possession 
 of,) he refused to admit, as evidence of this fact, the declaration 
 of the defendant's agent, who had been employed to keep the 
 bond for the plaintiff's benefit, and who, on its being demanded 
 by the plaintiff, informed him, that it had been delivered to the 
 defendant. (2; " The admission of an agent, (continued the 
 Master of the Rolls,) cannot be assimilated to the admission of 
 the principal. A party is bound by his own admission, and is 
 not permitted to contradict it. But it is impossible to say, a man 
 is precluded from questioning or contradicting any thing, that 
 any person may have asserted, as to his conduct or agree ent, 
 merely because that person has been an agent. If any fact, ma- 
 terial to the jnterest of either party, rests in the knowledge of 
 an agent, the general rule is, that it ought to be proved by his 
 testimony, not by his mere assertion. "(/c) 
 
 Rule in crimi- q^ ^j^g impeachment of Lord Melville (3) the Hou--e of 
 
 nal case. ' ^ ' 
 
 Lords decided, that a receipt given, in the regular and official 
 
 form, by Mr. Douglas, (who, as it was proved, had been ap- 
 pointed by Lord Melville to be his attorney, to transact the 
 business of his office of Treasurer of the navy, and to receive all 
 necessary sums of money, and sign receipts for the same,) was 
 admissible, as evidence, against Lord Melville, to establish this 
 single fact, that a person, appointed by him, as his paymaster, 
 did receive from the exchequer a certain sum of money, in the 
 ordinary course of business. " The first step in the proof of the 
 charge," said the Lord Chancellor, " must advance bv evidence, 
 applicable alike to civil and to criminal cases; for a fact must be 
 established by the same evidence, whether it is to be followed 
 by a criminal or civil consequence; but is a totally different 
 question, in the consideration of criminal justice, as distinguished 
 from civil, hovv the noble person, now on trial, may be effected 
 by the fact, when so^established. The receipt by the paymaster 
 
 (1) 10 Ves. 128. (3) 29 Howell'i State Trial*, 746— 
 
 (2) Fairlie v. Hastinga. 10 Ves. 128. 763. 
 Young V. Wright, 1 Campb. 139. 
 Wiiion V. Tnrner, 1 Taunt. 393. 
 
 (fc) See Note 182, p. 180,
 
 Sect. 4.] or by his Agent. 103 
 
 would in itself involve him civilly, but could by no possibility con- Statement of 
 vict him of a crime." - 
 
 In the course of the late proceedings in the House of Lords, 
 
 on the bill of Pains and Penalties, a question was proposed to 
 
 the judges as to the competency of proving, on the trial of a 
 
 criminal proseciftion, certain acts supposed to have been done 
 
 by the aeent of the prosecutor. On that occasion the judges Acts by prose- 
 , • , , , r . , 1 11 I 11 1 cutor's agent, 
 
 deternuned, that a delendanl s counsel would not be allowed to 
 
 prove, in the defence, that A. B., who had been employed as 
 agent to procure evidence in support of the indictment, but who 
 had not been examined as a witness, offered a bribe to some 
 third person (who likewise had not been examined,) to induce 
 him to give evidence fouching the subject matter of the prosecu- 
 tion; and, similar i)roof, as to the conduct of the defendant's 
 agent, would be equally inadmissible, if offered on the part of 
 the prosecutor. (1) Here, it is to be observed, the act of the 
 agent, wiiich it was proposed to prove, is supposed to have been 
 addressed to a person not called as a witness for the prosecution, 
 and to be of a nature entirely unconnected with any particular 
 matter deposed to by other witnesses; so that those witnesses 
 would not be in any manner affected by the proposed proof, 
 excepting by way of inference and conclusion. These circum- 
 stances were particularly noticed by the Lord Chief Justice in 
 delivering the opinion of the judges. The Lord Chief Justice, 
 at the conclusion of his speech, after observing on the abstract 
 nature of the question, added, " notwithstanding the opinion 
 thus delivered, lie was by no means prepared to say, that in no 
 case, and under no circumstances appearitig at a tiial, it might 
 not be fit and proper for a judge to allow proof of such a nature 
 to be submitted to the consideration of a jury; and the inclina- 
 tion of Qvery judge would be to admit, rather than to exclude, 
 the offered proof." 
 
 The fact of the agency must be first established, before the Proof of agen- 
 declarations of a supposed agent can be received. (/) For this '^^' 
 
 (1) See printed evidence, p. 86). on a subject nearly connected wtih this, 
 865. 868., 2 Brod. & Bing. 302. in Burnett's Commentary on the Crimi- 
 There are some very sensible remarks nul Law of Scotland, p. 412 — 419. 
 
 (/) Sm Not« 183, p. 188.
 
 104 Of Admissions by a Party to the Suit, [Ch. 5. 
 
 Statement of purpose, ilie admissions of the principal are evidence asrainst him- 
 
 sell; (m) or ilie lact may be proved directly by the agent, (n) In 
 
 the case of Johnson v. Ward (I), an action on a policy of in- 
 surance, the affidavit of a pej^son, stating that he subscribed the 
 policy on behalf of the defendant, (which affidavit the defendant 
 himself had previously used, on a motion to put off the trial,) 
 was, under the particular circumstances, properly admitted as 
 proof of the agency. The defendant, having used the affidavit 
 for such a purpose, must be considered as having known and 
 adopted its contents. But the single circumstance, that the affi- 
 davit purports to have been made by a person as agent, would 
 not be sufficient proof of his being invested with that authority. 
 
 Proofofpower. l^" ihe action is brought upon a deed, or if a deed is given in 
 evidence in support of the defendant's plea, and the deed has 
 been executed under a power of attorney, the power must be 
 proved; as, where the defendant, in an action of replevin, made 
 cognizance under A. B. for rent in arrear, and a lease executed 
 by the wife of A. B., as attorney to her husband, was given in 
 evidence, Lord Kenyon held, that she could not, in the first 
 instance, be examined as to the lease, without proof of the power 
 of attorney. (2) (o) But there it might be shewn that the husband 
 had admiitedjor recognized her authority, and the validity of the 
 lease: and some such evidence appears to have been given in 
 that case. 
 
 General an- Proof that a person has acted as agent in other instances, in 
 
 thority. which the principal has recognised his acts, will be sufficient 
 
 evidence of a general authority; as, where one had subscribed 
 several policies, besides the one in question, in the defendant's 
 name, which had been afterwards recognised by him. (3) So, 
 where the defendant's son had in three or four instances signed 
 bills of exchange for his father, this was held to be sufficient 
 prima facie evidence, in an action upon a guarantee purporting 
 to be^ in the father's name, of an authority to the son to sign the 
 guarantee. (4) In the two last cited cases, it must be presumed, 
 
 (1) 6 Esp. N. P. C. 48. (4) Watkins v. Vince, 2 Starkie, N. 
 
 (2) Johnson v. Mason, 1 Esp N. P. P. C. 368. 
 C. 88. 
 
 (3) Neale v. Erving, 1 Esp. N. P. C. 
 61. 
 
 (m) See Note 184, p. 188. (n) See Note 186, p. 189. (o) See Note 186. p. 189.
 
 Sect. 4.] or bij his Agent. 105 
 
 as a very sensible writer has observed, (1) ihat the acts of the Admission bj 
 
 agent in such other instances, as were given in evidence for the ______ 
 
 purpose of shewing a general authority, where proved lo have been 
 recognized by the principal. Such previous proof appears to be in- 
 dispensably necessary; and, therefore, in the case of Courteen v. 
 Touse, (2) where a witness proved that he had often seen the sup- 
 posed agent sign policies for the defendant, but had never seen 
 any general power of attorney for that purpose, and was not ac- 
 quainted with any instance in which the defendant had paid a 
 loss upon such a policy. Lord EUenborough held, that this was not 
 sufficient proof of agency, (p) 
 
 Proof by a witness, that he has acted for many years as the BailifT. 
 bailiff of A. B. for a certain manor, and during that time made re- 
 turns to mandates directed to A. B. as lord of the manor, will be 
 sufficient evidence of his being bailiff, though he may never have 
 seen A. B.; and the fact of A. B. being lord of the manor will be 
 proved by the sherifl''s mandate to him as such, toget!)er with the 
 bailiff's return. (3) 
 
 The attorney of one of the parties, who has made an admission Admission by 
 ... ,. , . ~ • , r 1 attorney. 
 
 With mtent to obviate the necessity ol provmg the lact, must be 
 
 supposed to have an authority for that purpose, and his client will 
 be bound by the adn^ission; as, where he has given a formal ad- 
 missions of a the execution of deed, or of the dishonor of a bill; but 
 whatever the attorney may happen to state in the course of con- 
 versation is not evidence in the cause. (4) An undertaking by the 
 attorney to appear for the defendants, describing them as joint 
 owners of a ship, is evidence of their joint ownership; (5) and a 
 notice by the defendant's attorney, to produce papers relating lo a 
 bill of exchange, which describes the bill to have been accepted by 
 the defendant, is evidence of his acceptance. (6) Propositions, inade 
 by an attorney on the part of his client, respecting a demand which 
 
 (1) Paley on Principal and Agent, An admission, by tiie defendant's at- 
 201. torney, of ihe hand-writing of a per- 
 
 (2) 1 Campb. 43, n. Whitehead son attesting a deed, is tantamount to 
 V. Tucket, 15 Kast, 400. an admission cf tho execution by thu 
 
 (3) Tyler v. U. of Leeds, 2 Star- defendant. 1 Campb. 375. 
 
 liie, N. P. C. 218. (5) Marshall v. Cliff, 4 Campb. 133. 
 
 (4) Young V. Wright, 1 Campb. (6) Hoit v. Squire, 1 Ry. &. Moo- 
 141. Millward v. Temple, 1 Campb. dy, 2S2. 
 
 375. Goldio v. ShuUleworth, 1 id. 70. 
 
 (p) Seo Nolo 187, p. 180. 
 
 Vol. I. 14
 
 106 Of Admissions by a Party to the Suit, [Cfi. 5. 
 
 Admission by another person had against him, whether made before or after the 
 
 under-sberift. ^ . , , . , • . .u i- 
 
 commencement of a suit, may be used as evidence against the cn- 
 
 ent. (1) These propositions, though they cannot be proved by the 
 attorney, from a regard to the privilege of the client, yet if proved 
 by another witness, are received as the admission of an accredited 
 
 Proof. agent. (2) And proof that the propositions or admissions were made 
 
 by the attorney on the record, will be sufficient to establish his 
 agency. (3) (q) 
 
 Special case. A special case signed by the counsel on both sides, for the opin- 
 ion of the court above, and stating facts proved at the trial of the 
 cause, has been admitted as evidence of those facts on a new tri- 
 al. (4) Whether admissions, made by the defendant's counsel on 
 a former trial, can be received as evidence against the client on a 
 new trial, even supposing the client to have been present and with- 
 in hearing, is a question of some difficulty. The late Lord Chief 
 Baron rejected such evidence. (5)(r). 
 
 Statement of 
 under-sheriflT. 
 
 or bailifi: 
 
 The declarations and statements of an under sheriff have been 
 thought admissible in evidence against the sheriff, on the ground 
 of his being the sheriff 's general agent. (6) But a distinction is 
 to be made between statements by an under sheriff, and statements 
 by a bailiffor high sheriff's officer. The bailiff is not the sheriff's ge- 
 neral deputy for all official purposes; when a warrant is granted, he 
 becomes the special oflicer of the sheriff. (7) The statements of a 
 bailiff, therefore, are admissible as evidence against a sheriff, only 
 so far as they form a part of the transaction, in which he represents 
 the sheriff, and for which the sheriff is responsible. (8) In no case 
 is the statement of the sheriff's officer admissible, unless the rela- 
 tion between the officer and the sheriff, in the particular irnnsac- 
 tion, has been clearly proved by other independent evidence. (9)(s) 
 
 (1) Gainsford v. Grammar, 2 
 Campb. 9. 
 
 (2) S. C, 2 Campb. 9. 
 
 (3) Marshall v. Cliff, 4 Campb. 133. 
 
 (4) Van Wort v. VVolley, 1 Ry. 
 & Mo. 4, by Abbott, C. J. 
 
 (5) Colledge v. Horn, 3 Bing. 119. 
 
 (6) Yabsley v. Doble, 1 Ld. Raym. 
 190. 7 Term Rep. 117. 
 
 (7) 7 T. R. 117. 
 
 (8) North V. Rliles, I Campb. SS9. 
 Bowsher v. Caily, 1 Campb. 391. 
 'ibis subject is more fully treated of, 
 in the 2d vol. 
 
 (9) On this .subject, see 2d vol. & 
 title Sheriff in the inde.x. 
 
 {q) See Note 188, p. 190. (?) See Note 1S9, p. 191. (j) See Note ISO, p. 191.
 
 Sect. 4.] or by his Agent. 107 
 
 An acknowledgment of a debt may be frequently implied from Admission, 
 the conduct and demeanour of a person, no less than from an ex- ^ *^' 
 press admission; and the forbearance and non-interference of one 
 party, with full knowledge of adverse acts done by another party, 
 is a circumstance to shew l)is acquiescence. (1) An admission 
 may sometimes be inferred from what has been said in the pres- 
 ence and hearing of a person without his opposing or contradict- 
 ins- (0 
 
 The force and effect of an admission must of course depend upon Effect, 
 the circumstances under which it has been made. In many cases 
 it will be evidence of the strongest kind, if clearly proved: in 
 some, it amounts to little. A full and free admission of a debt is, 
 unless satisfactorily explained, conclusive against the party who 
 makes it. 
 
 Proof, that a defendant, in his examination before commissioners Proving nnder 
 r I .1 1 1 I • I I II ... . commission, 
 
 oi bankrupt, has proved his debt under the commission, is not evi- 
 dence against him of such a petitioning creditor's debt, as will sup- ^' 
 port the commission; much less is it evidence against a co-defend- 
 ant, in an action by the assignees. (2) The creditors have not the 
 means of knowing the evidence, on which the party was declared 
 bankrupt; and it would not be reasonable, that by proving their 
 debts they should be put to the dilemma of being barred by a cer- 
 tificate, or of being understood to have admitted, that every act ne- 
 cessary to support the commission really existed, when they had 
 not the means of judging, whether such acts did or did not 
 exist. (3) (u) 
 
 An admission by the defendant, that he owes a certain sum Admission of 
 of money to the plaintiff', is strong evidence against him, in an 
 action to recover the debt, but it will not be conclusive: (v) the 
 defendant, if he can, may prove the fact of payment, or shew a 
 receipt, or give other evidence to repel the presumption arising 
 
 (1) See the following examples: Doe dem. Winkley v. Pye, I Esp. N. P* 
 
 Jairett v. Leonard, 2 Maule. & Selw. C. 364. 
 
 265. Morris v. Burdctt, 1 Campb. (2) Rankin r. Horner and Lauday, 
 
 2IS. Doe dem. Sheppart v. Allen, 16 East, 191. 
 
 3 Taunt. 78. Maitny v. Christie, (3) Rankin v. Horner and Laaday, 
 
 I Esp. N. P. C. 341, cit. 16 East, 193. 16 East. 192. 
 
 Xt) See Note 191, p. 191. (u) See Note 192, p. 193. {v) See Note 193, p. 21S.
 
 108 
 
 OJ Admissions by a Party to the Suit, [Ch. 5. 
 
 Effect of r.d 
 
 Receipt. 
 
 from liis acknowledgment. A receipt for money is not conclusive 
 against the person who has signed it; hut he may shew, if he can, 
 that tlie money has not been received, (1) or that he gave the re- 
 ceipt under a tnisrepresentaiion. An indorsenient on a deed, (2) 
 of a receipt of a sum of money, is not conclusive, the deed itself in 
 its contents not stating such receipt: and it may be shewn that in 
 fact the money was not paid; the indorsement, not being under 
 seal, cannot amount to an estoppel, but can only be evidence for 
 the jury, capable of being rebutted by other circumstances in the 
 Attorney'g bill case. (-3) (it) A bill delivered in' an attorney to his client, for bu- 
 siness done during a certain period, is strong presumptive evidence 
 against any additional item within the same period; but the bill is 
 not like a deed to operate as an estoppel, and the party will be at 
 liberty to prove the fact of his having transacted other business for 
 the defendant. (4) (x) 
 
 Notice to quit 
 not objected 
 to. 
 
 A notice to quit at a certain time is evidence, that the tenancy 
 commenced at that period, if the notice was served personally on 
 the tenant, and if he made no objection to the time of quilting men- 
 tioned in the notice. (5) The circumstance of his not making 
 such an objeclion has been considered as prima facie evidence of an 
 admission and acquiescence. If, on the other hand, it should be 
 made to appear, that at the time of the service the tenant did not 
 look at the notice so as to know its contents, or could not read, 
 such evidence v.ould completely repel the supposition of any ac- 
 quiescence on the part of the tenant; for he cannot be supposed to 
 admit a fact, of which he does not appear to have been inform- 
 ed. (6) 
 
 Offer by way j^^^ offer by a party, to pay money by way of compromise, 
 and to get rid of an action, is not evidence of a debt, as an ad- 
 mission. (7) Where a party submits to make a sacrifice, with the 
 view of buying peace, it would be unjust to construe such a con- 
 
 (1) Stratlon V. Rasteli, 2 T. R. 366. 13 East, 405. Doe dein. Leicester v. 
 
 (2) Skaife v. Jackson, 3 Barn. & Biggs, 2 Taunt. 109, Doe dem. Baker v. 
 Cress. 421. Woombwell, 2 Cainpb. 559. Thomas 
 
 (3) Larnpon v. Corke, 5 Barn. & deni. Jones v. Thomas, 2 Campb. 647. 
 Aid. 606, 611. (6) Thomas v. Thomas, 2 Campb. 
 
 (4) Loveridge v. Botham, 1 Bos. & 647. 
 
 Pull. 49. (7) Bull. N. P. [236.] Gregory v. 
 
 (5) Doe dem. Clarges v. Foster, Howard, 3 Esp. N. P. C. 113. 
 
 (i») See Note 194, p. 213. (x) See Note 195, p. 218.
 
 Sect. 4.] or by his Agent. 103 
 
 cession into an unequivocal acknowledgment of the adverse 
 party's right. " If A. sue B. for 100/., and B. offer to pay him 
 20/., it shall not be received in evidence; for this neither admits 
 nor ascertains any debt, and is no more than saying, he would 
 give 20/. to get rid of the action. But if an account consists of 
 ten articles, and B. admits that a particular one is due, it is 
 good evidence for so much." (!)(?/) 
 
 Admissions of particular articles before an arbitrator are also Admissions 
 evidence under the same limitation, that is, when they are made, {'0,.°'°""^ 
 not with a view to a compromise, but while the parties are contest- 
 ing their rights; (2) (z) and these admissions may be proved by 
 the arbitrator himself. (3) 
 
 The rule now under consideration, applies only to treaties for 
 the amicable adjustment of disputes, which are not afterwards 
 concluded. (4) It cannot be applied to a case, where a treaty A»reement. 
 has been reduced to a final agreement, signed by the parlies, 
 and executed: such an agreement, though purporting to be a 
 compromise, will be admissible in evidence against the party who 
 signs it. (4) (a) 
 
 A distinction also is to be made, on this subject, between an Limitation of 
 admission of some fact connected with the merits of the cause, '"°''^" 
 and an admission of an indifferent fact, as of the hand-writing of 
 a party. Thus, on the trial of an action, which bad been once 
 withdrawn under a treaty between the parties. Lord Kenyon 
 allowed proof of the defendant's having admitted of his acceptance 
 on a bill of exchange, though the admission bad been made 
 during the treaty; (5) he held that any admission by the party, 
 respecting the subject matter of the action, pending a treaty on 
 the faith of which it was made, could not be received to his 
 prejudice; but added, that such a fact as that of the party's 
 hand-writing, not being connected with the merits of the cause, 
 and capable of being easily proved, stood on different grounds, 
 and that an admission of this fact might be received. 
 
 (1) Ball. N. P. [236.] (4) Froysell r. Dewelyn, 9 Price. 
 
 (2) Bull. N. P. ib. I P. Wms. 487, 122, 128. 
 
 Black V. Buchanan, Peake, N. P. C. 5. (5) VValdiidge v . Kennison, 1 Esp. 
 
 (3) Gregory v. Howard, 3 Esp. N. N. P. C. 143. 
 p. C. 113. 
 
 (y) See Note 196, p. 218. (z) Sea Note 197, p. 223. (a) See Note 198, p. 223.
 
 110 
 
 Of Confessions by Prisoners. [Ch. 5. 
 
 Whole of ad- 
 mission to- 
 gether. 
 
 Voluntjsry 
 coafesaion 
 
 It Is scarcely necessary to observe, that the whole of an 
 admission must be taken t02;ether, in order to show distinctly 
 the full meaning and sense of the parly. * Thus, if a person, in 
 making an admission against his own interest, refers to a written 
 paper, without which the admission is not complete, the con- 
 tents of the paper ought to be shown, before the statement can 
 be used as evidence against the party. (1) (6) Or, if a person says, 
 "that he did owe a debt, but that he had paid it," such an 
 admission would not be received as evidence to prove the debt, 
 without being also evidence of the payment. (2) (c) What he has 
 said in his own ftivour may perhaps weigh very little with the 
 jury, while his admission against himself may be conclusive; 
 however, it is reasonable, that if any part of his statement is 
 admitted in evidence, the whole should be admitted, (c/) 
 
 Sect. V. 
 
 Of the Mmissibility of the Confession of a Prisoner against 
 
 himself. 
 
 Since an admission is evidence against a party in civil suits, 
 with much stronger reason is the voluntary confession of a 
 prisoner evidence against him on a criminal prosecution: for it 
 is not to be conceived, that a man would be induced to make a 
 free and voluntary confession of guilt, so contrary to the feelings 
 and principles of human nature, if the facts confessed were not 
 General rule. true. Tiie general rule on this subject was very fully considered 
 in a judgment delivered by iNIr. Justice Grose, on a case re- 
 served for the opinion of the twelve judges; and it seems to be 
 now clearly established, that a free and voluntary confession by 
 a person accused of an offence, whether made before his appre- 
 hension or after, whether on a judicial examination or after 
 commitment, whether reduced into writing or not, in short, that 
 any voluntary confession, niade by a prisoner to any person at 
 any time or place, is strong evidence against him. (3) (e) Such 
 
 (1) See Jacoli v. Lindsay, 1 East, Abr. tit. Ev. A. b. 23. Green v. Dunn, 
 462. Smilii v. Young, 1 Campb. 439. 3 Carnpb. 215. Smith v. Young, 1 
 Lord Barrymore v. Taylor, 1 Esp. Campb. 439. Smith v. Blandy, 1 Ry. 
 N. P. C. 325. Colieit v. Ld, Keith. & Mo. 258. 
 
 4 Esp. N. P. C. 212. Rondie v. Black- (3) Lamb's case, 2 Leach, Cr. C. 
 
 burn, 5 Taunt. 245. Boardman v. 625. Hawk. P. C. b. 2, c. 46, s. 8L 
 
 Jackson, 2 Ball and Beatty, 386. Thomas's case, 2 Leach, 728. Hule'i 
 
 (2) Anonym, case, cited 12 Vin. case, East. T. 1790, MS. 
 
 • See Note 190, p. 223. (6) See Note 200, p. 228. <c) See Note 201, p. 224. 
 (d) See Note 202, p. 230. (e) See Note 203, p. 232.
 
 Sect. 5.] Of Confessions by Prisoners. 1 1 1 
 
 confession is sufficient eround for a conviction, if it was made Confession 
 
 , alone, 
 
 before a magistrate under a charge of the offence, although there 
 
 is no other proof of his having committed the offence, or of the 
 
 offence having been committed. (1) (/) 
 
 The confession must be vohmtary, not obtained by improper Voluntary, 
 influence, nor drawn from the prisoner by means of a threat or 
 promise: for however slight the promise or threat may have 
 been, a confession, so obtained, cannot be received in evi- 
 dence, (2) (g") on account of the uncertainty and doubt, whether 
 the prisoner might not have been induced, from motives of fear or 
 of interest, to make an untrue statement, (/i) And if a confes- 
 sion has been obtained from the prisoner by undue means, any 
 statement, afterwards made by him under the influence of that 
 confession, cannot be admitted in evidence. (3)(i) 
 
 It is not an objection to the admissibility of a confession, Stranger in- 
 ihat it was made by the prisoner after an admonition from a ° 
 
 stranger, that he ought to tell the truth, although the admonition 
 was in the presence of a constable, to whom the confession was 
 afterwards made. (4) In another case, where the counsel for the 
 prisoner objected to the admissibility of a confession made before 
 the conmiitting magistrate, and offered to prove, that the wife of 
 the constable had told the prisoner, some days before the commit- ^ 
 
 ment, that it would be better for him to confess, Mr. Baron Wood 
 ever-ruled the objection, and admitted the confession. (5) (J) 
 
 It is not an objection, that 'the confession was made under a Under mia- 
 mistaken supposition, that some of the prisoner's accomplices *"'^®' 
 were in custody; not even though some artifice has been used 
 to draw him into that supposition. (6)(fc) Nor is it ar)y objection 
 to a confession, made before a magistrate, that the prosecutor, 
 
 (1) Kelyng, 18. VVheeling'.s case, case, 2 East, P. C 56?. Jone's case, 
 l^Leach, C'r. C. 349, n. (a) Eldridge's Russ. &. Ry. Cr. C. 152. See Thorn- 
 CISC, Russ. & Ry. Cr. C 440. Fulk- ton's case, 1 Ry. & Mo. Cr. C. 27 . 
 ner=s case, ib. 348. White's case, ib. (3) R. v. White, Mitch. T. 1800, MS. 
 508. TipeU'scase, ib. 509. (4) R. v. Row, East. T. IS09, MS. 
 
 (2) Thompson's case, 1 Leach, Cr. Russ. & Ry. Cr. C 1G3. 
 
 C. 827. Cuss's case, n. (a), ib. 328. (5) R. v. Kardwick, Nottingham 
 
 Warwickshall's case, 1 Leach, Cr. C. Lent Ass. 1811. 
 
 299. 2 Leach, 636., note in Lambe's (6) R. v. Burlcy, East T. 1818, MS. 
 
 (/) Fee Note 204, p. 234. (j-) See Note 205, p. 235. (A) See Note 206, p. 
 235. (i) See Note 207, p. 240. (y) See Note 208, p. 241. (ft) See Note 209, p. 241.
 
 112 Of Confessions by Prisoners. [Ch. 5* 
 
 Caution by who was present, first desired the prisoner to speak the truth, and 
 suggested that he had heller speak out: on which, the magistrate 
 or liis clerk immediately checked the prosecutor, desiring the pris- 
 oner not to regard him, hut i,ay what he thought proper. (l)(0 
 
 Promises aniel Voluntary confessions before magistrates have been in some 
 
 cedent to coi:- i • i c • c r i • 
 
 feision before cases objected to, on account of some promise of favor havmg 
 a magistrate, jjggj^ made to the prisoner before he was taken into the presence 
 of the magistrate. In a case of this kind, mentioned by Mr. 
 East, (2) where hopes of favour had been given, and the prisoner 
 refused before the magistrate to confess except upon conditions, 
 Mr. Justice Duller observed, that there must be very strong evi- 
 dence of an explicit warning by the magistrate not to rely on any 
 expected favor on that account, and it ought most clearly to ap- 
 pear, that the prisoner thoroughly understood such warning, be- 
 fore his subsequent confession could be given in evidence. In an- 
 other case, tried before Mr. Justice Baily, (3) where it appeared 
 that the prisoner, on being taken into custody, had been told by a 
 person who came to assist the constable, that it would be belter for 
 him to confess, but that on his being examined before the commit- 
 ting magistrate on the following day, he was frequently caution- 
 ed by the magistrate to say nothing against himself, a confession 
 under these circimistances before the magistrate was held to be 
 clearly admissible. 
 
 In a still later case, it appeared that a constable told the 
 prisoner he might do himself some good by confessing ; the 
 prisoner afterwards asked the magistrate, if it would be any 
 benefit to him to confess; on which the magistrate said, he could 
 not say it would, and the prisoner then declined confessing; but 
 afterwards, in his way to prison, he made a confession to another 
 constable, and he confessed again in prison to another magistrate; 
 the judges were unanimous in holding, that the confessions were 
 admissible in evidence, on the ground that the magistrate's an- 
 swer was sufficient to efface any expectation which the constable 
 might have raised. (4)(ni) 
 
 (1) R. V.Edwards, East. T. t502. MS. (4) R. v. Rosier, East. T- 1821 
 
 (2) 2 East, P. C. 658. MS. 
 
 (3) R. V. Lingate, Derby Lent Ass. 
 1815. , 
 
 (/) S«e Note 210, p. 241. {m) Sea Note 211, p. 242.
 
 Sect. 5.] Of Confessions by Prisoners. 113 
 
 The effect of an antecedent promise of fiivour, in rendering a 
 confession before a magistrate inadmissible, must depend npon the 
 nature of the promise, the time and circumstances in which it vvas 
 made, and on the situation of the person from wliom the promise 
 came. A promise held out by the prosecutor, recently before the 
 examination, or by the constable who had the jjiisoner in custody, 
 may be suj)posed to have great influence. On the other hand, a 
 promise made some time before, by some indifferent person, who in- 
 terfered officiously without any kind of authority, and promised 
 without the means of performance, can scarcely be deemed sufli- 
 cient to produce any effect, even on the weakest mind, as an in- 
 ducement to confess, (n) 
 
 Parol evidence of the prisoner's statement before a magistrate f**''''"' ®^''- 
 
 ... dence. 
 
 ought not to be received, until it is clearly shown, that the state- 
 ment has not been reduced into writing; (1) (o) for the statute, 
 after directing the magistrate to take the examination of the pris- 
 oner, expressly enjoins him to put it in writing. (2) ('>) The pro- Mode of tak- 
 priety of committing the examination to writing, instead of leav- ti^a!^*^"""'^' 
 ing it to the uncertain memory of surrounding witnesses, cannot be 
 too strongly impressed on all who are entrusted with such judicial 
 powers. It is also of the utmost importance, that the confession 
 should be committed to writing with the most scrupulous atten- 
 tion, and, as nearly as can be done, in the very words of the 
 prisoner, {q) 
 
 The informations against the prisoner before a magistrate are Not on oath, 
 to be taken on oath; the account given by the prisoner ought to 
 be taken without oath, [o) (r) If the prisoner has been sworn, 
 his statement cannot be received; and if the written deposition of 
 a prisoner purports to have been taken on oath, evidence is not 
 
 (1) Jacob's case, 1 Lench, Cr. C. was a similar regulation. 
 
 348. Fearsliire'3 case, ib. 240. (3) Bull. N. P. 242. Hawk. P. C. 
 
 (2) St. 7 G. 4. c. 64. s. 2. This b. 2. c. 46 s. 27. Keiyng, 2. 7 G. 4. 
 statute repeals 1 & 2 P. & M. c 13. and c C4. s. 2. 
 
 2 & 3 P. & M. c 10. lu which (here 
 
 (n) See Note 212, p. 242. (o) See Note 213, p. 243. ( p) See Not« 214, p. 
 244. (5) See Note 215 p. 244. (r) See Note 216. p. 244. 
 
 Vol. I. 15
 
 114 Of Confessions by Prisoners. [Ch. 5. 
 
 admissible for the purpose of showing, that in point of fact he was 
 not sworn. (I) 
 
 Examination The justice before he commits to prison any person arrested for 
 ^ ' felony, or on suspicion of felony, (s) is directed to take the exami- 
 
 nation of such person^ and the information upon oath of those who 
 shall know the facts and circumstances of the case, and to put the 
 same, or as much thereof as is material, into writing. He is further 
 directed to subscribe all such examinations and informations. (2) 
 (f) The words in the act, respecting the taking of the examina- 
 tion, imply an authority given lo examine the prisoner, and, there- 
 fore, to put questions (for without questions no examination can be 
 carried on) as to the facts proved against him. And now, the bet- 
 ter opinion appears to be, that an examination, so taken, is not to 
 be rejected on the ground that the prisoner had been previous- 
 ly questioned by the justice. (3) (it) But though this is the rule of 
 law according to the strict letter of the statute, yet the most hu- 
 mane, the safest, and best course to be generally adopted by jus- 
 tices, is, not to press the accused with questions, but to leave hira 
 at liberty to speak or not in his defence, as he tnay think fit.* 
 
 Signing. rpj^g examination of the prisoner, when reduced into writing, 
 
 ought to be read over to him, and tendered to him for his sig- 
 
 (1) R. V. Smith and Hornnge, 1 contempt, and could not therefore be 
 
 Starkie, N. P. C. 242., by Le Blanc J. considered voluntary; bat the objection 
 
 In the case of R. v. Merceron, 2 Star- was overruled, and the evidence receiv- 
 
 kie, N. P. C. 366., a statement by the ed. 
 
 defendant before a committee of the (2) 7 G. 4. c. 64. s. 2. 
 
 House of Common.s was offered in ev- (3) Ellis" case A. D. 1826, before 
 
 jdence; an objection was made, that Liltledale J. 1 Ry. Mo. 425., and a 
 
 the statement had been made under case there cited, before Holro\d J. R. v. 
 
 a compulsory process, and under the Wilson, before Richards C. B. contra, 
 
 pain of incurring punishment as for a Holt, N. P. C. 597. 
 
 ♦ The at. 2 & 3 P. & M. c. 10, also under which justices used to act till the 
 late Stat, of 7 G. 4. c. 64. passed, required justices to lake (he examinations of pris- 
 oners. Lambard, a writer in the reign of Elizabeth, in noticing the statute of P. & 
 M. writes thus: " There also you may see, if I :iin not deceived, the time when the 
 examination of the felon himself was first warranted by our law, lor at ike com- 
 mon law, his fault vas not to be wrung out of himself , but rather to be proved l>y 
 ethers." Eirenarcha, cap. 21. p. 208 "See also Dalton Just. chap. 164 p. 544.. and 
 Cr. mp. 193 The passage, above cit«rd from Lan.bard, shows ln>w the law was then 
 nndefiitood, though it also proves that the power, given by the statute, was exercised 
 with great harshness. 
 
 (ff)SeeNot©2J7»p. 246. CO Se« Note 218, p. 245. (tt) See Note 219, p 246.
 
 Sect. 5.] Of Conftssions by Prisoners. 116 
 
 nature; it ought to be subscribed also by the magistrate. (!)(?') 
 The signature, however, of the prisoner is not essentially "necessa- 
 ry; but only for precaution, and for the facility of future proof. 
 In Lambe's case (2), before mentioned, the question for the opin- 
 ion of the judges was, whether a written examination, taken by a 
 committing magistrate, and containing a confession, which the 
 prisoner, on hearing it read over to him, admitted to be true, but re- 
 fused to sign, ought to have been received in evidence, as it was 
 not signed by the magistrate (3) or by the prisoner; and a major- 
 ity of the judges held, that such a confession would have been ev- 
 idence at common law, and that it is not rendered inadmissible by 
 any provision in the stattites of Philip and Mary respecting exami- 
 nations and informations before justices of the peace. In this case 
 the examinalion was rendered admissible by the prisoner's ac- 
 knowledging the truth of its contents: if he had not made such an 
 admission, but had only refused to sign it, after it had been read 
 over to him, it could not have been received in evidence. (4) {to) 
 
 Minutes of the prisoner's examination, which have not been Unsigned 
 , , , . , , . ~ , , . memorandum. 
 
 Signed by him, nor read over to Iimi alter they were taken m 
 
 vvrillng, though they cannot be admitted in evidence as a judicial 
 
 examinalion, may yet be used by a witness, who was present 
 
 when the minutes were made, as a memorandum to refresh his 
 
 memory. (5) (x) 
 
 The confession is evidence only against the person confessing, Evidence only 
 not against others, although they are proved to be his accompli- pffso"ner ^^ 
 ces. It was resolved by all the judges in the case of Tong 
 and others (6), on an indictment for high treason, that a con- 
 fession by one of the prisoners was evidence only against the 
 
 (1) 7 G. 4. c. 64., s. 2. This stat. (6) Kelyng, 18., res. 5. Gilb. Ev. 
 requires the commiuing justices to 124. Many instances are to be found 
 subscribe the e.xaminations and in- among the earlier state trials, of con- 
 formations: which was not required fessions, even of convicts, being used 
 by the st. of P. & M. as evide.ico against prisoners charged 
 
 (2) 2 Leach. Cr. C. 625. Thomas's with tlie same offence. This was 
 case, ib. 727. S. P. done in Sir Nicholas Throcismorton's 
 
 (3) See Note (I). case, and in the trials for the murder 
 
 (4) R. V. Telicole, 3 Starkie, N. P. of Sir Thomas Overbury. It appears 
 C. 483. to have been the general practice, in 
 
 (5) Layer's case, 16 Howell, St. those limes, to receive confessions as 
 Tr. 214. proof against third persons. 
 
 (u) See Note 220, p 246. (w) See Note 221, p. 246. (jc) See Note 222, p. 246.
 
 116 Of Confessions by Prisoners. [Ch. 5. 
 
 part}' himself who made the confession, and could not be made 
 use of as evidence against any others, whom on liis examinaiion 
 he confessed to be in the treason. And if one in his examination 
 before tlie justice, implicate another who is present, and, tliough 
 charged with the offence, does not deny it, yet this is not to be us 
 ed against him as an admission or confession. (1) (y) 
 
 If the confession is not in writing, liie whole of what the prison- 
 er said must be fully stated, aliliough it may happen that some 
 part of it concerns other piisoners who are tried on the same indict- 
 ment. In sucli a case it is not possible to n)ake any selection; for 
 until the evidence has been heard, it cannot be known what it is, 
 or to whom it i elates; and all that can be done is to direct the 
 jury not to take into their consideration such parts as affect the 
 other prisoners. But, in the case of a written confession, a dis- 
 tinction is commonly made in this respect, when that part relating 
 to the other prisoners is capable of being separated and detached 
 from the rest, or can be so read as not to affect in any degree the 
 ' prisoner's narrative against himself. (2) 
 
 Discoveries in It has been determined by the opinion of all the judges, that 
 of'confessio^ns. alil^ough confessions, improperly obtained, are not admissible, 
 yet that iiny |_facts, which have been brought to light in con- 
 sequence of such confessions, may be properly received in evi- 
 dence. Thus where a prisoner was charged, as accessary after 
 the fact, with having received property knowing it to be stolen, 
 proof was admitted of the property being found concealed in the 
 prisoner's lodgings, although the knowledge of that fact had 
 been gained from an inadmissible confession. (2) (a) And on a 
 prosecution for receiving stolen goods, evidence has been ad- 
 ii)itted, that the prisoner described the place where the goods 
 were concealed, and that afterv.ards they had been found there; (6) 
 but that part of the confession, in which he acknowledged that 
 he himself had concealed them, was rejected, as it was im- 
 properly drawn from him. (.3) (c) And that part also of his con- 
 
 (1) R. V. Appleby, 3 Stiirkie, N. P. SOI. Lockhart's cnse, ib. 430, 2 East, 
 
 C. 33. by Hoirojd J. & S. P. said by P. C. C5S, S. C. 
 
 birn to liave been so ruled by several (3) Gram's case, and Hodge's case, 
 
 judges in an earlier case. 2 East, P. C. 658. i Leach, Cr. C. 
 
 (2J Warwickcliali's case, I Leacb, 301, n. {a), S. C. Gridin's case, Kuss. 
 
 Cr. C. 300. Mosey's case, ib. n. (a) lly. Ca. C. 151. 
 
 (y) See Note 223. p. 246. (z) See Note 224, p. 247. (a) See Note 225, p. 24». 
 (6) See Note 226, p. 249. (c) Sse Note 227, p. 250.
 
 Sect. 6.] Of Confessions by Prisoners. 117 
 
 fessions in which he has described a particular spot as the place 
 where the goods were concealed or deposited, would be inadmis- 
 sible, unless confirmed afterwards by the proof of finding them 
 there. (1) (^d) Tliere is good reason for this distinction; for, 
 what the prisoner has said respecting the concealment of the prop- 
 erty, is ascertained to be true by the fact of the subsequent discov- 
 ery, but the other part of the confession, in which he charges him- 
 self with having concealed it, may have been made untruly and 
 under the influence of the threat or promise. 
 
 The Stat, of the 7th W. 3. c. 3. s. 2. enacts, "that no person Confession in 
 
 shall be indicted, tried, or attainted, for high treason, or niis- *^'''^'* "'^ ""*"' 
 
 . son. 
 
 prision of high treason, but upon the oaths and testimony of two 
 
 witnesses, either both of them to the same overt act, or one of 
 them to one, and the other of them to another overt act of the 
 same treason, unless the party indicted and arraigned shall wil- 
 lingly without violence in open court confess the same." Mr. 
 Justice Foster seems to have been of opitnon (2), that the legis- 
 lature intended by this section to reqin're two witnesses to the 
 overt acts in all cases, except wliere the prisoner confessed the 
 treason upon his arraignment in open court, and that to warrant 
 a conviction there must be proof of the overt acts upon oath, not 
 merely proof of the confession of the overt acts. " But," he 
 adds (3), " perhaps it may now be too late to controvert the 
 authority of the opinion in 1716, in Francia's case, warranted as 
 it hath been by later precedents." (4) The rule is now clearly 
 settled. All the judges, on a conference preparatory to the trial 
 of Francia (5), held that a confession of the overt acts, if proved 
 by two witnesses, is proper evidence to be left to a jury. The 
 same construction of the statute was adopted in Greg's case (6), 
 by six judges against two: in Berwick's case (7), by Ld. C. J. 
 Willes and Sir Thomas Abney against the opinion of Mr. Justice 
 
 (1) Jenkins' case, Russ. Ry. Cr. (3) Fost. Disc. 243. 
 
 C. 492. (4) See Fost. Disc. 11. n. 
 
 (2) See Fost. Disc. 232. 240. 243 (5) Francia's case, 1716. Mr. J. 
 Willis's case, ib. 242. S. C. 8 St. Tr. Burnett's MS. 1 East, P. C 133. Ke- 
 254, 255. fol. ed. S. C. 15 Howell's lyng, 18. 
 
 St. Tr. 622. Smith's case, Fost. 240. (6) Greg's case, 1 East, P. C. 134. 
 
 243. (7) Fost. Disc. 10. 
 
 (d) See Note 228, p. 250.
 
 118 Of Confessions by Prisoners. [Ch. 5. 
 
 Foster; and by the judges in the commission, on the trial of 
 the rebels in 1746. (1) 
 
 If the overt act of high treason, alleged in the indictment, is 
 the assassination of the king, or any direct attempt against his 
 39 & 40 G. 3. life or his person, it is plain from the provision of the stat. 39 & 
 40 G. J. c. 3o. (which enacts, that in such cases the prisoner shall 
 be tried according to the same order of trial and upon the like evi- 
 dence as if he stood charged with murder,) that a confession, prov- 
 ed by a single witness, will be sufficient to convict the prisoner, (e) 
 And the overt acts themselves may be proved by a single witness. 
 (2) In these cases, the rule of the common law is restored. 
 
 'In all cases of high treason, when the prisoners' confession is of- 
 ferred in evidence as confirmatory of the testimony of the wit- 
 nesses, it is clearly admissible, though proved by a single wit- 
 ness. (3) (/) And with regard to all facts merely collateral, 
 which no not conduce to the proof of the overt acts, it may be laid 
 Proof of col- down as a general rule, that whatever was ev dence of them at 
 common law, is still good evidence under the statute of William. 
 (4) A confession therefore, of such collateral facts is still admissi- 
 ble in evidence though proved by a single witness. 
 
 Principle 
 the rule. 
 
 of 
 
 From the above-cited cases, it appears now to be an established 
 rule, that a full and voluntary confession by ilie prisoner, of the 
 overt acts charged against him, if proved by two witnesses, isof it- 
 self sufficient evidence to warrant a conviction, {g) And, although 
 M. Justice Foster suggests, (5) that " the rule, for admitting a 
 confession against the prisoner, ought not to extend further than 
 to a confession made during tlie solemnity of an examination 
 before a magistrate, or before some person having authority to 
 take it, when the party may be presumed to be properly upon 
 his guard and apprised of its danger," no distinction of this kind 
 is to be found in the authorities before mentioned. On the con- 
 trary, in Francia's case the judges resolved, that the confession 
 
 (1) Fost. Disc. 11. n. (t). 1 East, And see Crossfield's case, 26 How- 
 P. C. 134. ell's St. Tr. 56, 57. 
 
 (2) See infra, chap. 7. sec. 1. (4) Fost. Disc. 242. 
 
 (3) Willis's case, 8 St. Tr. 254, foi. (5) Fost. Disc. 243. 4 Black. 
 ed. S. C. 15 Howell's St. Tr. 622.— Com. 356. 
 
 (e) See Note 229, p. 250. (/) See Note 230, p 251, {g) See Note 231, p. 251.
 
 Sect. 6.] Of the Competency of the Party injured^ ^c. 11 ^ 
 
 would be evidence, whether made before a magistrate, or in the 
 course of conversation. (1) And there appears to be no solid 
 ground for such a distinction; as confessions are admissible in tri- 
 als for high treason, precisely on the same principle which made 
 them evidence at common law. 
 
 The observations of Mr. Justice Foster, on the subject of con- 
 fessions in cases of high treason, relate to the effect of this sort of 
 evidence, rather than to its admissibility. " Hasty confessions," he 
 says, (2)" made to persons having no authority to examine, are the 
 weakest and most suspicious of all evidence. Proof may betoo 
 easily procured : words are often mis-reported whether through 
 ignorance, inattention, or malice — it mattereth not to the defend- 
 ant — he is equally affected in either case: they are extremely lia- 
 ble to misconstruction; and withal, this evidence is not, in the or- 
 dinary course of things, to be disproved by that sort of negative 
 evidence, by which the proof of plain facts may be and often is 
 confronted." 
 
 The proof of a confession will depend upon the manner or form Proof of con- 
 in which the confession was made. A verbal confession, which *'^*'""" 
 has not been taken down in writing judicially, will be proved by 
 some person, who heard the prisoner confess. A confession, tak- 
 en in writing on an examination before a magistrate, is to be prov- 
 ed by tlie magistrate or his clerk, testifying, that the examination 
 was truly taken, and contains the true substance of what the pris- 
 oner said upon his examination. (3) (/i) 
 
 Sect. VI. 
 
 Of the Competency of the Party injured, as Witness in Criminal 
 
 Prosecutions. 
 
 Tt is a general rule, that in criminal prosecutions the injured 
 party may be a witness: although on the conviction of the prison- 
 er he will in many cases be entitled to a reward. *(i) 
 
 (1) See Burret J. MS. cited 1 East, (2) Fost. Disc. 243. 
 P. C. 113, and Kclyng, 19. (S) 2 Hale, P. C. 51, 2S4, 2S5. 
 
 * A note was inserted in a former ediiion of this work, mentioning the sevemi 
 acts of parliament, which contain provisions respecting the granting of ceriificates 
 
 ih) See Note 232, p. 251. (i) See Note 233, p. 251.
 
 120 Of the Competency of the Party injured, [Ch. 6. 
 
 Robbery. It is ilie constant practice, on an indictment for robbery, to ad- 
 
 mit the evidence of a {)crson who lias been robbed; and it is not a 
 siiflicieut objection, that lie will be entitled to ilie restitution of bis 
 property, on the conviction of the oflender. (J) The same evi- 
 dence is admitted in prosecutions for a cheat (1) or for perjury ;(2) 
 and in the case of perjury, it is not material, whether the parly 
 lias or has not satisfied tlie judgment in the suit, in which the per- 
 jury was committed. It was, indeed, at one time thougiit an in- 
 dispensable requisite to show the judgment satisfied ; (3) on 
 the supposition, that the party, in case of his procuring a convic- 
 tion, might use it for the purpose of obtaining relief in equity 
 against the judgment. But as it is now an established rule, that a 
 court of equity will not grant relief on a conviction, which proceeds 
 on the evidence of the prosecutor, (4) there can be no objection to 
 his being admitted a witness. 
 
 In other cases also the party aggrieved will be allowed to 
 give evidence on a criminal prosecution, (Jc) as he cannot after- 
 wards avail himself of the record of conviction in any future suit, in 
 
 (1) Paris'3 case, 1 Vent. 42. 2 Sid. R. v. Proughton as over-ruling the three 
 431, S. C. R. V. Macartney, 1 Salk. last-mentioned cases. 
 
 2S6. (3) R. V. Eden, 1 Esp. N. P. C. 97. 
 
 (2) R. V. Broughton, 2 Stra. 1230. R. v Daldy, Peake, N- P. C 12- 
 
 R. V. Boston, 4 East, 581. R. v. Ellis, (4) Barllet v. PicKei.-gill, cited in 
 
 2 Stra. 1104. R. v. Nunez, 2 Str. 10^2. Abraham v. Bunn, 4 turr. 22£5, by 
 
 R. V. VVhiling, 1 Salk. 283, contra. Lord Mansfield C. J. and in R. v. Bos- 
 
 But Lord Mansfield, in Abraham q- t- ton, 4 East, 577, by Lord Ellenborough, 
 V. Bunn, 4 Burr- 2255, cites the case of 
 
 or pecuniary rewards on the conviction of ofi'enders. Many of these provisiens 
 have been repealed by the statute 58 G. 3, c- 70 This staiute reciies, as a fact 
 found by experience, that the rewards which have been given, have not produced 
 the efl^ect intended in checking crimes, and that tiie hope or expectation of obtain- 
 ing such rewards has instigated evil-disposed persons lo conspire to entrap the un- 
 wary and ignorant into the commission of offences, for which they have afterwards 
 been apprehended and prosecuted to conviction l)y such conspirutors- The statute, 
 therefore, repeals all provisions of this kind in the following acts of parliament: 
 St. 4 \V. & M. c. 8, s 2; st. 6, 7 VV. 3, c. 17, s 9; st 5 Ann, c. 31, s. 1; st. 14 G- 
 2, c. 6, s 2; st- 15 G 2, c 28, s. 7. The power of granting rewards by st. 6 G. 1, 
 for apprehending and prosecuting to conviction prisoners charged with taking re- 
 wards for helping to .stolen goods without prosecuting the felon, and by st 9 G. 2, c 
 35,8. 11, for apprehending and convicting smugglers who oppose custom-houae 
 and excise othcers by force of arms, and by st. 9 G 1, c 22, s. 12, for apprehending 
 and convicting for the offences there mentioned, is still unrepealed. 
 
 (j) See Note 234, p. 252. (k) See Note 235, p- 252.
 
 Sect. 6.] 171 Criminal Prosecutions. 121 
 
 order to prove the criminal act. (1) For this reason, it is conceiv- Perjury. 
 ed, on an indictment for perjur}', the party injured may be a wit- 
 ness, whether the prosecution is by the common law, or founded 
 on the Stat, .'i Eliz. c. 9, which gives liim Imlf the forfeiture incur- 
 red; for if, in an action to recover his moiety, he would be preclud- 
 ed from giving the conviction in evidence, the oljection pguinst his 
 conripetency seems to be removed.* 
 
 An exception to this general rule has been made in prosecu- Rule in 
 tions for forgery; in which case, the person, whose nasne is ^^'S^'y- 
 forged, or upon whose genuine name a forgery is committed, is 
 not admitted (o prove it forged, if he would either be liable to 
 be sued upon the instrimient (supposing it genuine,) or be there- 
 by deprived of a legal claim against another; in other words, if 
 he has an intei'est in the destruction of what is supjiosed to be 
 forged. (2) f It seems to be (he prevailing opinion, that his Material facts. 
 incompetency is not confined to the single point of falsifying the 
 hand-writing, but that he is equally incompetent to prove any 
 other fact, which contributes to the proof of the forgery, 
 or any fact conducive to the general conclusion. This sub- 
 ject was much discussed in a late case, (3) v»here on a pros- 
 ecution for forging a promissory note, (on which there was an 
 indorsement in the prisoner's hand-writing, that a year's interest 
 liad been paid,) one of (he points reserved was, whether the per- 
 son, by whom the note purported to be made, ought to have 
 been permitted to prove, that he had never paid any interest on 
 the note, as was pretended by the indorsement. This evidence 
 was received on the trial, the fact of the forgery having been 
 first proved; but, according to the report, it seems to have been 
 
 (1) Bartlet v- Pickersgill, 4 East, 3 Salk. 172, S. C. Rhode's case, 2 Str. 
 577, n. (6) S. C. 1 F.den, 515 S. C. 72t. 1 Leach, Cr. C. 29, S. C. Russell's 
 1 Cox. Cas. 15. R. v. Boston, 4 East, case, 1 Leach, 10. Cathy's case, 2 East, 
 681, Stnilh V. Rummens, i Canipb. 9. P. C. 995. Taylor's case, 1 Leach, 
 Halhavvay V. Barrow, 1 Cainpb. 151. 255. Crocker's case. 2 New. Rep. 87. 
 Burdon v. Browning, Taunt. 520. (3) Crocker's case, Salib. Ass. 1805, 
 
 (2) Bayley on Bills, 4lh ed. 450. before Le Blanc J. 2 New. Rep S7, 
 The cases on" this subject are the fol- 90. Rus.s. Ry. Cr- C. 97, S. U. R. 
 lowing: Walt's case, Hard. 331. v. Bunting, 2 East, P. C 996. 
 
 * Ruled contra in an old case; Bacon's case. 2 Roll. Abr. 687; Bull. N. P. 239. 
 S. C. GilbEv 111, S. C. 
 
 t Respecting the mode of restoring the competency of the witness m such case. 
 Bee post, Sect. 8. 
 
 Vol. I. 16
 
 122 Of the Competency of the Party injured, [Cli. 5. 
 
 Collateral generally understood, that the majority of the judges considered 
 the evidence inadmissible.* When, however, the fact is merely 
 collateral, and does not in any way contribute to the proof of the 
 forgery, as, where a witness is called to prove himself the person, 
 whom the prisoner intended to personate or describe, in such a case 
 his testimony has been admitted. (1) 
 
 Prosecutor If the witness would not incur any loss, nor be liable to a suit, 
 
 tenUn^caae of whatever may be the result of the prosecution; in other words, 
 forgery. if he has no interest in the instrument supposed to be forged, his 
 
 evidence ought to be received. Thus, on an indictment for forg- 
 ing a bank-note, in the name of a cashier of the Bank of Eng- 
 land " for the governor and company," the cashier, not being 
 chargeable, may be a witness. (2) And on a prosecution for 
 forging an acceptance to a bill of exchange, where the banker 
 had paid the bill, but, suspecting a forgery, had not debited the 
 person whose name was forged, this person was admitted to 
 give evidence. (3) So, in Wells's case, (4) where the prisoner 
 was tried for forging a receipt, the person, whose name the re- 
 ceipt purported to bear, having before recovered the money from 
 the prisoner, was admitted to prove the forgery. The payee of 
 a bill of exchange, who was employed to pay the produce m dis- 
 charge of a debt owing from the drawer, but had not received 
 the bill, is competent to prove the forgery of his name. (5) And 
 the maker of a note, which purports to be payable on demand 
 at his own place of residence or at a banker's, but has not 
 been paid at either place, is competent to prove that he did not 
 make it payable at the banker's. (6) A person, whose name has 
 been forged to a power of attorney for selling stock, is competent, 
 
 (1) P.irr's case, 2 Leach, Cr. C. 487, (3) Usher's case, Leach, Cr. C 57. 
 491. 2 East, P. C. 997, S. C. But (4) Bull. N. P. 289. 2 East, P. C. 
 it seems not quite settled, that he is lOOO, S. C. 
 
 competent, even on such points. See (5) Sponsonbjr's case, 1 Leach, Cr. 
 
 Bayley on Bills, 4th ed. 450. C. 374. 
 
 (2) Newland's case, 1 Leach, Cr. C. (6) Treble's case, 2 Taunt. 328. 
 850. 
 
 ♦ Lord Ellenborough C. J., Mr. Justice Lawrence, and Mr. Justice Lc Blanc, 
 thought the witness nrlmissible, because it had been sufficirnlly proved before, that 
 the note was not signed by him; and ihey thought him admi.ssil.le to all points ex- 
 cept that of the forgery. Some of the other judges seemed to think, that to pointB 
 perfectly collateral he would have been admissible, but they considered the point 
 to which he was called, n> oontributing to prove the forgery. Bayley an Bills, 4tb 
 •d. 450, Nat».
 
 J?lect. 6.] in Criminal Prosecutions, 123 
 
 if the stock has not been sold. (1) Where the forgery consists in 
 altering a genuine instrument, thereby giving the bill or note a bet- 
 ter credit, but not varying the responsibility of the drawer or maker, 
 the drawer or maker is a competent witness to prove the forgery. (2) 
 
 Upon what principle, it iTiay be asked, is a party, by whom an Reason of thU 
 instrument purports to be made, incompetent to prove it forged? *"^P '<'°- 
 In Watt's case, (3) on an information for the forgery of a deed pur- 
 porting to be the revocation of a will, it was adjudged by the barons 
 of the excliequer, after a conference with the judges of the King's 
 Bench, that no legatee named in the will, nor any other person 
 \v1io is a loser by the deed, or who may receive any advantage 
 from the verdict, can be a witness for the prosecution: and a dis- 
 tinction was made between the case of an indictment for a battery, 
 (whefe, it was admitted, the person beaten may be a witness, be- 
 cause lie can reap no benefit by the verdict in another suit,) and 
 the cases of forgery, perjury, or usury, in which, it was said, the 
 party aggrieved may have an advantage by the verdict, and there- 
 fore shall not be received as a witness. It is, however, now an es- 
 tablished rule, that on a prosecution for perjury, (4) the party ag- 
 grieved is competent: and, that a person who has borrowed money 
 on an usurious transaction, is also a competent witness for the 
 plaintiff in an action for perialties against the lender; (5) for he 
 gains nothing by the event of the suit, nor can he give the judg- 
 ment in evidence in an action against him for the money lent. 
 The case of forgery, therefore, is considered an anomaly in the law 
 of evidence; {&) and though such an objection has been allowed 
 in criminal prosecutions for forgery, yet, in a civil suit, if a question CItU suit, 
 arise collaterally and incidentally, as to the genuineness of a written 
 instrument, the person whose name it purports to bear, is compe- 
 tent to prove the forgery. (7) 
 
 (1) R. V. Wait, 1 Biiig. 121. (4) See ante, p. 112. 
 
 (2) Bayley on Bills, 4th ed. 452. (5) Abraham q. t. v. Bunn, 4 Burr. 
 
 (3) Watt's case, 3 Salk. 172, more 2251. Smith v. Prager, 7 T. R. 60. 
 fully reported in Hardr. 331. See (6) 4 East, 582. 4 Barn. & Aid. 
 4 Burr. 2254, where Lord Mansfield 210- 
 
 says, that this and other cases of the (7) Hunter v. King, 4 Barn. & Aid- 
 came kind " were not considered or 209. 
 looked into."
 
 124 Of the Competency of the Party injured, ^c. [Ch. 5. 
 
 The reason, assigned in Watt's case, is, that the witness would 
 receive a benefit from the verdict; and it has been suggested, (1) 
 that he is interested to procure a conviction, on the ground that a 
 conviction would have the effect of inducing a forfeiture, and thus 
 defeat every legal claim or security, which the prisoner might have 
 upon the instrument. On tlie other hand, it may be said, if the 
 parly, l)y whom the instrument purports to be made, were admit- 
 ted a witness, he would not be allowed afterwards to produce the 
 record of conviction in a civil suit for the purpose of proving the 
 supposed forfeiture, because the conviction must have proceeded 
 partly upon his own testimony. (2) And if he would be preclud- 
 ed from using the record of conviction against the prisoner, and 
 might therefore be admitted to give evidence on the trial consist- 
 ently with the general rule; still less reason is there for excluding 
 him in those cases, where the instrument purports to be made for 
 the benefit of a third person, or where it has since become a third 
 person's property, in either ol which cases it would not be liable to 
 forfeiture. 
 
 With regard to any probable advantage, which the witness may 
 be supposed to receive from a conviction, by the prisoner's being 
 disabled from giving evidence in any future suit, or from \he great 
 probability of his failing in an action in consequence of the discred- 
 it which a conviction must throw upon the instrument, (3) these 
 are circumstances, which a jury would be directed to consider as 
 forming a strong bias on the witness's mind, but which cannot 
 render him incompetent. Upon the whole, the most intelligible 
 reason, which has been assigned for the prevailing rule, is, because 
 the indictment, in a prosecution for forgery, may be considered in 
 some decree as a proceeding in rem, and a conviction would war- 
 rant a judicial cancellation of the forged writing. (4)* But the ex- 
 ception is manifestly anomalous and inconvenient; and requires 
 the interference of the legislature. (/) 
 
 (1)2 East, p. C. 994. (3) See 2 East, P. C. 994. 
 
 (2) Vid. infra, part 2. ch. 2, sect. 3. (4) 13ayley on Bills, 4th ed. 450. 
 
 * By the law of Scotland, such an objection to a witness, in a prosecution for for- 
 gery, is never allowed. See Burnett's Criminal Law of Scotland, p. 444. 
 
 (Z) See Note 236, p. 253.
 
 Sect. 7.] Exceptions to the Rule concerning Interest. 125 
 
 Sect. VII. 
 Of certain Exceptions to the general Rule on the Subject of Interest. 
 
 It has been before stated as a general rule, that all persons, 
 who gain or lo^e directly by the event of a cause, are incompetent to 
 give evidence. There are, however, several exceptions to this gen-^ 
 eral rule: some by act of parliament, as, where informers and the 
 inhabitants of parishes or other districts are admitted; otliers from 
 necesjity (m) or a principle of public policy, (n) as, where evidence 
 is received from persons who are entitled to rewards on convictions, 
 or from agents, factors, or servants. Objections on the ground of 
 interest proceed upon the supposition of too groat a bias in the 
 mind of the witness, and on the public utility of rejecting partial 
 testimony. The presumption of bias may be taken off", by show- 
 ing that the witness has as great or gieater interest the other way, 
 or that he has given up what interest he has: and the presump- 
 tion of public utility may be answered, by showing that it would 
 be very inconvenient, under the particular circumstances, not to 
 receive such testimony. (1) 
 
 First, as to the evidence of informers: 
 
 By the common law, informers, who are entitled under penal tnformer«. 
 statutes to part of a penally, are not competent witnesses. (2) (o) 
 But, by the particular provisions or policy of several acts of par- 
 liament, they may be admitted. Where a statute can receive no 
 execution, unless a party interested be a witness, there he must 
 be allowed, says Ch. B. Gilbert; for the statute must not be 
 rendered ineffectual by the impossibility of proof. (3) Thus, by 
 Stat. 2 G. 2, c. 24, s. 8, against bribery at elections, the legis- 
 lature, in giving an indemnity and discharge to any person of- 
 fending against the act, who shall discover any other offender 
 so that he may be committed, must also have intended, that he 
 
 (1) By Lord Mansfield, 1 Burr. 422. Piercy, Andr. 18. R. v. Hlaney, Andr. 
 
 (2) R. V. Tilly, 1 Stra. 315. R. v. 240. 3 Burr. 1473. 4 East, 181. 
 Stone, 2 Ld. Raym. 1545. R. v. (3) Gilb. Ev. 114. 
 
 (m) See Note 237, p. 253. (n) See Note 238, p. 253. (o) See Note 239, p. 254.
 
 126 Exceptions to the Rule concerning Interest. [Ch. 6, 
 
 should be competent to give evidence at the trial; and, therefore, 
 in an action for penalties ho has been admitted. (1) 
 
 In a prosecution on stat. 21 G. 3, c. 37, against exporting ma- 
 chinery, the informer is competent. (2) So, on a prosecution for 
 penalties under stat. 9 Ann, c. 14, s. 5, the loser of money at cards 
 may prove his loss. (3) And, on a prosecution under stat. 23 G. 
 2, c. 13, s. 1, for se !ucing artifices to go out of the kingdom, the 
 prosecutor is a competent witness, although entitled to a moiety of 
 ihe penalty. (4) Tiiere is no express provision in either of the 
 three acts of parliament last mentioned, for admitting the evidence 
 of the party interested. 
 
 In the act of the 32 G. 3, c. 56, for preventing counterfeited cer- 
 tificates of servants' characters, there is a clause by which the evi- 
 dence of the party aggrieved is rendered admissible; (5) and a sim- 
 ilar provision is made by the act, (st. 33 G. 3, c. 75, s. 17,) which 
 regulates hackney coaches. In prosecutions for all offences pun- 
 ishable on summary conviction under stat. 7 & 8 G. 4, c. 29. s. 
 64, the evidence of the party aggrieved is admissible. 
 
 £nhabitnnti. Secondly, as to the evidence of the inhabitants of a parish or oth- 
 
 er district. 
 
 County bridge. On an indictment against private persons or corporate bodies 
 for not repairing a public bridge or the highway adjoining, the 
 inhabitants of the county, town, riding, &c. in which the bridge 
 is situated, are competent witnesses on the trial of such a prose- 
 cution, by the 1st Ann, stat. 1, c. 18, s. 13. Even before this 
 
 c. 18. ' statute, such evidence had been thought admissible from ne- 
 cessity. (6) 
 
 Action against In actions against churchwardens or overseers of a parish, for 
 the recovery of money rais-spent by them, inhabitants of the parish 
 
 (1) Bush V. Raining, Say, 289. (5) Sect. 7 
 
 Mead v. Robinson. Willes, 425. He- (6) R. v. Carpenter, 2 Show 47; 
 
 ward V. Shipley, 4 East, 182. and see 1 Ventr. 351. Gilh. Ev. 113. 
 
 (2) R. V. Teasdale, 3 Esp. N. P. C The section of the act above referred 
 68. to, recites, that such inhabitants had 
 
 (3) R. T. Luckup, Willes, 425. (c) not been allowed by judges to be le- 
 
 (4) R. T. Johnson, Willes, 425. gal witnesses. 
 n. (e).
 
 Sect. 7.] Exceptions to ike Rule concerning Interest. 127 
 
 who do not receive alms or any gift out of the parochial collection, 
 
 are made competent witnesses by stat. 3 W. 3, c. 11, s. 12. s W. 8, c. li. 
 
 In an action asainst a hundred by a party who has been robbed, Against hun- 
 
 . dred. 
 
 the inhabitants of the hundred may be witnesses for the defend- 
 ants, by Stat. 8 G. 2, c. 16, s. 15. Before this act passed, they ^ ^- 2. c 16. 
 were not competent, because any one of them would have been 
 liable to pay the debt, in case of judgment against the hundred. (1) 
 The party robbed, though clearly interested, is yet competent lo 
 prove the robberv and the extent of his loss. (2) 
 
 By the general rule of law, the inhabitants of a parish indicted Highway*, 
 for not repairing a highway, are not competent to give evidence 
 for the parish, (o) But on trial of offences committed contrary 
 to the highway act, it is provided, that any inhabitants of any 
 parish, township, or place in which such offence shall be com- 
 mitted, shall not be deemed on that account an incompetent 
 witness. (4) 
 
 And by 4 G. ■4, c. 95, s. 84, it is enacted, that no person 
 shall be deemed incompetent to give evidence in any action, suit, 
 prosecution, or other legal proceedings to be brought or had in 
 any court of law or equity, or before any justice or justices of 
 the peace, under any act for making or maintaining any turn- 
 pike road, or under the act of 3 G. 4, by reason of being a Trustee cf 
 trustee or commissioner of such road, or a mortgagee or cred- "* * 
 itor, of the tolls thereof, or a farmer, lessee, or collector of such 
 tolls, or a treasurer, or clerk, or surveyor, or other officer under 
 such act. 
 
 Where pecuniary penalties are directed to be applied to the Pecuniary 
 use of the poor, or for the benefit and exoneration of the parish 
 or other place, the inhabitants are rendered competent witnesses 
 on the trial of the offender, by stat. 27 G. 3, c. 29, provided the 27 G. S, c. 29. 
 penalty, imposed by the act of parliament, does not exceed twenty 
 
 (1) R. V. Carpenter, 2 Show. 47. 474. Bnt see st. 54 G. 8, c, 170, be- 
 2 Hale, P. C. 2S0. R. v. Kirdford, low stated, which makes inhabiianfg 
 2 East, 561. competent in any matter relating to 
 
 (2) See ante, p. 70. rates. 
 
 (3) 1 Barn. 6c Aid. 66. 16 East, (4) 3 G. 4, c. 126, b. 1S7.
 
 itaiiis. 
 
 ^2^ Exceptions to the Rule concerning Interest. [Cli. 5. 
 
 pounds. (I) And by st. 7 & 8 G. 4, c. 29, s. 64, the evidence of 
 any inhabitant of the place, in whicli offences punishable on sum- 
 mary conviction under that act have been cotnmitied, shall be ad- 
 mitted, notwithstanding any penally or forfeiture incurred by the 
 offence may be payable to the general rate of the place. 
 
 54 G. 3, C.170. It lias been lately provided by stat. 54 G. 3, c. 170, s. 9, that no 
 Rated itihab- inhabitant or person, rated, or liable to be rated, to any rates or 
 cesses of any district, parish, township, or hamlet, or wholly or in 
 part maintained thereby, or executing or holding any office thereof 
 or therein, shall be deemed on such account an incompetent wit- 
 ness, for or against such district, parish, &c., in any matter relating 
 to such rates or cesses, or relating to tlie boundary between such 
 district, parish, &c., and any adjoining district, &c., or in any mat- 
 ter relating to any order of removal to or from such district, or lo 
 the settlement of any pauper in such district, or touching any bas- 
 tards chargeable or likely to become chargeable to such district, or 
 touching the recovery of any sum for the charges or maintenance 
 of such bastard, or the election or appointment of any officer, or the 
 allowance of the accounts of any officer of any such district. ( p) 
 
 The words of the clause above mentioned, which provide, that 
 no such inhabitant, as is there described, shall be deemed incom- 
 petent in any manner relcUing to the rales or cesses, are very gene- 
 ral, and have received a large and liberal construction, ahhough 
 they are followed by other ternis of a more particular and spe- 
 cific kind. In the late case of Meredith v. Giljiin, (2) an action 
 of trespass against the overseers of a township, where the prin- 
 cipal point was, whether the lands in question were vested in the 
 overseers under a local act of parliament, the Court of Exchequer 
 determined, that a rated inhabitant of the township was not an 
 incompetent witness on the part of the defendants, although the 
 lands in question, if vested in the defendants, would be vested in 
 trust for the township tind in aid of the poor-rates. The court 
 considered the matter in issue to relate to the rates. 
 
 (1) R. V. Davis, 6 T R. 177. Be- (2) 6 Price, 146. See Rhodes v. 
 fore liiis sUil. of 27 G. 3, an inlialiit- Ainsworlh, ante, p. 58. 
 ant, rated to the poor, would have been 
 incoiripetent. Portmen v. Okeden, Say- 
 er, 179. 
 
 (p) See Note 240, p. 254.
 
 Sect. 7.] Exceptions to the Rule concerning Interest, 129 
 
 Before the passine; of this act, it had been determined, on aques- ^^^^^ Inhabi- 
 
 . . ^ tant. 
 
 tion of settlement, that the rated uihabiiants of either parish could 
 
 not be compelled to answer against their own paiish, because they 
 
 are in reality the parties to the proceeding; (1) and, for the same 
 
 reason, the declarations of a rated inhabitant were adjudged to be 
 
 admissible against his parish. (2) 
 
 Thirdly, persons entitled to rewards on the conviction of offen- Entitled to 
 ders, (whether the rewards are given by act of parliament, by proc- 
 lamation, or by private persons,) and persons entitled to the res- 
 titution of their property on the conviction of a thief, (3) are com- 
 petent to give evidence. (4) 
 
 Fourthly, the admitting of the evidence of agents, servants, and va^i^s'"^-' ^d"^' 
 factors, has been considered an exception to the general rule; "forfaciors. 
 the sake of trade and the common usage of business." (5) And 
 this was, properly speaking, an exception formerly, when interest 
 in the question was taken as a test of competency. But now, as 
 the true criterion is, whether a witness is interested in the event of 
 the cause, the evidence of agents, servants, and factors, for the 
 purpose of proving contracts made by them on behalf of their prin- 
 cipals, would be admitted, under the general rule, and not by way 
 of exception, {q) 
 
 A factor may prove a sale, though he is to receive a poundage Factor, 
 on its amount, (6) or what he has bargained for beyond a stated 
 sum. (7) (r) And every person who makes a contract for another, 
 is an agent within the meaning of this rule. (8) It is the com- Servant, 
 mon practice to admit servants and carriers, to prove the payment 
 or receipt of money, or the delivery of goods on behalf of their 
 master or principal. (9) Thus, if money has been overpaid by a 
 
 (1) R. V. Woburn, 10 East, 403. (6) Dixon v. Cooper, 3 Wils. 40. 1 
 See ante, p. 91. Atk. 2-18. 
 
 (2) R. V. Whillev Lower, 1 Mnule, (7) Benjnmin v. Porteus, 2 H. Bl. 
 Selw. 636. In ihis r;isc ihe person, 590. R. v. Pliipps, Bull. N. P. 289. 
 whose declnration.s were offered, wns (8) 2 H. Blac. 591. 
 
 not called as a vilncss, nor had he re- (9) By Holt C. J. in Theobald v. 
 
 fused to give evidence. Tregott, 11 Mod. 262. Bull N. P. 
 
 (3) Bv St. 21 H. 8, c 11. 239. 4 T. R. 589, 590. Mathews 
 
 (4) Rudd's case. Leach, Cr. C. 157. v. Haydon, 2 Esp. N. P. C. 509. 
 158. lb. 353, n. Hawk. P. C. b. 2, Spencer v. Goldinj;, Peake, N. P. C. . 
 c. 46, s. 135. 129. Adams v. Davis. 3 Esp. N. P. C. 
 
 (5) Fortcsc. 247. Bull. N. P. 289. 48. 
 By Eyre C. J. 2 U. Bl. 591. 
 
 (g) See Note 241, p. 254. (r) See Note 242, p. 265. 
 
 Vol. I. 17
 
 150 Exceptions to the Rule concerning Interest. [Ch. 5. 
 
 Steward. servant, or paid by mistake, he is a competent witness, in an ac- 
 
 tion to recover it back. (1) (s) So, where the question was on the 
 custom of a manor, whether a fine was due to the lord during his 
 minority on the tenant's admission, the standard of the manor was 
 allowed to give evidence for the lord, though it was objected to 
 him, that he would be entitled to a fee on admission, which he 
 would lose, if the tenant were not admitted. (2) 
 
 Agents when But though agents and brokers are competent to prove a sale or 
 not competent, ^qj^^j.^^j^ ^j^gy. ^^.g ^^^ competent to prove the contract properly ex- 
 ecuted, in an action against the principal for their misconduct or 
 negligence. Thus, in an action against the defendant for purchas- 
 ing goods of an inferior quality. Lord Ch. J. Gibbs rejected, as an? 
 incompetent witness, the broker of the defendant, who was called 
 to prove that he had purchased goods of the best quality. (3) And 
 where a person has entered into a contract for the purchase of 
 goods in his own name, it has been held that he is not a competent 
 witness, in an action for goods sold and delivered, to prove that he 
 purchased them as the agent for the defendant. (4) 
 
 Workmen. In an action of trespass, where the question is, on a plea of li- 
 
 cence, whether the defendant has exceeded what he had the plain- 
 tiff's permission to be, the defendant's workmen, employed to do 
 the work, are competent witnesses on his behalf: for though the 
 plaintiff may have a verdict, yet it does not follow that the work- 
 men would be liable, and the verdict would certainly not be evi- 
 dence against them. (5) (t) 
 
 Servant when Where the act of the servant has been out of the ordinary 
 not competen . ^^^^.^^ ^^ j^jg employment, and a mere breach of duty, the prin- 
 ciple does not apply; and it has, therefore been held, that in 
 such a case the seivant is not a witness for his master without a 
 release. Thus, in an action to recover back money, which had 
 been intrusted to the plaintiff's servant for a special purpose 
 and paid by the servant in illegal insurances, he was considered 
 
 (1) Martin V Howell, 1 Stra. 647. N. P- C. 138, and see ante, p. 56. 
 Barker v. Macrae, 3 Canipb. 144. (4) M'Braine v. Forlune, 3 Campb. 
 
 (2) Champnin v. Atkinson, 3 Keb. 317. 
 
 90. Rep. temp Hard- 360. (5) Cuthbert v. Gostling, 3 Campb. 
 
 (3) Gevers V. Mainwaring, 1 Holt, 515. 
 
 (s) See Note 243, p. 255- (i) See Note 344, p. 256.
 
 Sect. 8.] Of restoring the Competency, ^c. 131 
 
 incompetent vviiliout a release. (1) And in an action against the 
 defendant for tlie negligence of his servant, the servant is not com- 
 petent to disprove the fact of his negligence: (2) for since the ver- 
 dict might be given in evidence in an action by the defendant 
 against the witness, as to the quantum of damages, the servant is 
 directly interested to defeat the action, (w) 
 
 Sect. VIII. 
 
 Of the Means by which the Competency of an interested Witness 
 may be restored. 
 
 The last question that remains to be considered, on this part of 
 our subject, relates to the regular mode of making the objection(v) 
 to the competency of a witness, and tJie means of restoring his 
 competency. 
 
 The rule formerly was, that the obieciion ought to be made on Objection 
 
 , .- I r . . . . , . f. . when taken, 
 
 the vou-e dire, and, if made after the examination m chief, it would 
 
 not have the effect of excluding the witness; though, even then, 
 liis incompetency might be shown in another stage of the proceed- 
 ing, for the purpose of impeaching the v.'itness' credit. (3) But for 
 the convenience of the court, and because the incompetency may 
 not at first be suspected, a greater latitude has been since allowed. 
 And now, if it is discovered during any part of the trial, that a wit- 
 ness is interested, his evidence will be struck out. (4) (w) 
 
 The party, against whom a witness is called, may examine him How raised, 
 respecting his interest on the voire dire, (x) or may call another 
 witness, and produce other evidence, in support of the objec- 
 tion, {y) The old rule is said to have been, (5) that, if the witness 
 
 (1) Corking v. Jarrard, 1 Campb. 4 T. R. 589. Biid v. Thompson, 1 
 37. In Clarke v. Shee, Cowp. 199, Esp. N. P. C. 339. Miller v. Fal- 
 which was a similar case, a release coner, 1 Campb. 251. 6 Esp. N. P. 
 was given. See anonymous case, 1 C. 73. 
 
 Salk. 289; Bull. N. P. 39, 289, S. C; (3) See Ld. Lovat's case, 9 St. Tr. 
 
 and anonymous case, Bull. N. P. 280. 646. fol. ed. S. C. 18 Howell's St. 
 
 These were actions by a master to Tr. 596. 
 
 recover property embezzled by his (4) Turner v. Pearce, 1 T. R. 720. 
 
 servant, and the servant was admit- Perigal v. Nicholson, 1 Wightwick, 
 
 ted a witness to prove delivery to the 64. Howell v. Lock, 2 Campb. 14. 
 
 defendant; but it does not appear (5) By Lord Hardvvicke, in Lord 
 
 whether the plaintiff gave a release. Lovat's case, 9 St. Tr. 647, fol. ed. S. 
 
 (2) Green v. New River Company, C. 18 Howell's St. Tr. 596. 
 
 (u) See Note 245, p. 256. (v) See Note 246, p. 256. (w) See Note 247, p. 256. 
 (i) See Note 248, p. 257, (y) See Note 249, p. 958.
 
 132 Of restoring the Competency [Ch. 5. 
 
 were examined by the opposite party as to the fact of the ohjeciion, 
 and denied it upon his oath, the party would not be at liberty to 
 call afterwards another witness to prove it, in order to repel him 
 from giving evidence, unless the other side acquiesced, (z) But 
 the modern and more convenient practice seems to be, that if the 
 fact of interest is satisfactorily proved, the witness will be incompe- 
 tent, though he may have ventured to deny it on the voire dire, (a) 
 
 Examination ^ witness may be examined, on the voire dire, as to the con- 
 
 on voire dire, tents of a will or deed, or other written instrument, under which 
 he is supposed to acquire an interest in the subject matier of the 
 suit, {h) 'J'he general rule, vvliich requires a notice to be given for 
 the production of a written instrument, before a witness can be al- 
 lowed to speak to its contents, does not apply to such a case; for 
 the opposite parly may possibly be ignorant of its existence, and 
 cannot be supposed to know that a particular witness would be 
 called on the other side, (c) But if the witness himself produces 
 the very instrument, on which the objection to his competency 
 rests, the instrument ought to be read, as the best proof of the wit- 
 ness' situation. (1) 
 
 Objection re-^ When the objection arises from a witness' answer on the voire 
 dire, it may be likewise removed on the voire dire, (c?) Thus, 
 where, in an action brought by a chartered company, a witness 
 for the plaintiffs admitted, on the voire dire, that he had been 
 a freeman of the company, but added that he was then dis- 
 franchised. Lord Kenyon ruled, that it was not necessary to 
 prove the disfrancisement by the regular entry in the com- 
 pany's books, and that the witness was competent. (2) And 
 in a later case, on a question of settlement, where the point for 
 Ihe consideration of the Couit of King's Bench was, whether 
 a witness produccul by the appellants could be examined, after 
 having ad(nitted in his examination on the voire dire, that he was 
 the occupier of a cottage in the appellant township, but that he 
 had never been charged with or paid any public rate or lax in 
 that township, the court held, that there was no ground for 
 
 (1) Butler V. Carver, 2 Slarkie, N. Esp. N. P. C. 162. Botham v. Swing- 
 P. C. 434. ler, Peake, N. P. C. 218, 1 Esp. N. P. 
 
 (2) Butchers' Company v. Jones, 1 C. 164, S. C. 
 
 (2) See Note 250, p. 258. (a) See Note 251, p. 259. {b) Se« Note 252, p. 260. 
 (c) See Note 253, p. 260. {d) See Note 254, p. 260. 
 
 moved on t'. d.
 
 Sect. 8.] of an interested Witness. 153 
 
 objecting to his testimony, and that it was not necessary for the 
 appellants to produce the rate, in order to negative the rating. (I) 
 In another case, where a witness was objected to as next of kin, 
 in an action by an administrator, but on re-exatnination answered, 
 that he liad released all his interest, this was held by Lord Ellen- 
 borough to remove the objection. (2) [d) 
 
 The objection, in the cases last cited, arose from the examina- R^emoved by 
 •J ' ' _ other evidence, 
 
 tion on the voire dire, and was removed also on the voire dire. But 
 
 when the parly who calls a witness, attempts to remove the ob- 
 jection by otlier independent proof, and not on the voire dire, he 
 'will then be subject to all the general rules of evidence; and the 
 best proof will be requisite, according to the nature of the case. 
 Thus, if anoilier witness is called, to prove tbat the witness, suppo- 
 sed to be inlei'ested, has been released; he cannot be allowed to 
 speak of the contents of the release, but the release itself, if in ex- 
 istence, ought to be produced. (3) The same lule has been laid 
 down by Lord Kenyon in another nisi prius case. (4) (e) 
 
 Whatever interest a witness may have had, if he is divested of it Release, 
 by release (/) or payment [g) or any other means, (/i) when he is 
 ready to be sworn, [i) there is no objection to his competency. 
 Thus, it is said " to have been solemnly agreed by the judges, that 
 where a person liad a legacy given him and did release it, he was 
 a good witness to prove the will." (5) * ( j) 
 
 (1) R. V. Gisburn, 15 E.isf, 5. (5) Vin. Ab. tit. Evidence, 14, n. 
 
 (2) Ingrain v. Dade, Lond. Silt, after 53, cited by Lord Mansfield, 1 Burr. 
 Mich. T. 1817. 423. 
 
 (3) Corking v. Jarrnrd, 1 Campb. 37. 
 
 (4) Botham v. Swingier, 1 Esp. N. P. 
 C. 164. 
 
 * Lord Chancellor Hardwicke established the will of Lord Ailesbury on similar 
 proof, in the year 17-18. (See 1 Burr. 427.) And in Wyndham v. ChetW3nd ( I 
 Burr- 414,) wliere the subscribing witnesses weie creditors of the testator, as their 
 debts had been paid, they were adiniited lo prove the will. So in Doe deni. Hind- 
 son V. Kersey, (4 Burn Ec. Law, 97,) ihiee of the ji;df;es were of opinion, that a 
 subscribing vviiness was restored to his competency, if all his interest had been releas- 
 ed or exiinguislied at the time of the examination. Lee C. J. in Anstey v. Dowsing 
 (2 Str. 1253,) and Ld. Camden C. J., in Doe, on the demi.se of Hindson v. Kersey, 
 were of opinion, that if a subscribing witness was interested at //le time of ot teat a lion, 
 nothing ex post facto could give effect to his attestation. In the former of these cases, 
 Justice Dennison difiered from Lee C. J. on this point (See 1 Burr. 427, 428.) 
 
 ((f) See Note 25.5, p. 260. (e) See Note 256, p. 260. (/) See Note 257, p. 261. 
 (g) See Note 258, p. 264. {h) See Note 259, p. 264. li) See Note 260, p. 266. 
 (» See Note 261, p. 266.
 
 134 
 
 Release. 
 
 Of restoring the Competency [Ch. 5. 
 
 The interest which a partner of either party has, to enforce a 
 ry,^ " contract to which, as a partner, he is jointly liable, or to disprove 
 
 the breach of such contract, cannot be removed by a release given 
 with a view to the particular action. (I) (fc) 
 
 Of all causes of 
 action. 
 
 A general release of all actions and causes of action, for any 
 matter or thing which has happened down to the time of the re- 
 lease, will discharge the witness from all liability depending upon 
 the event of the existing suit. Such a release from a defendant, who 
 had dravvn a bill of exchange, to the witness, who accepted it, 
 was held to have this effect; (2) for, as Lord Ellenborough said 
 in that case, the transaction was already past, which was to lay 
 the foundation of future liability; and if the drawer should have 
 a cause of action against the acceptor, it would have reference 
 back to the acceptance, and would be discharged by the release. 
 A similar point arose in the case of Cartwright v. Williams; (3) 
 where the defendant was the acceptor, and the witness was one 
 of the drawers, for whose accommodation the bill had been ac- 
 cepted ; there the witness was a bankrupt, and it was objected 
 that a release from the assignees was necessary in addition to the 
 general release, since the defendant, as surely, might prove the 
 debt under the commission of the witness, in case the plaintiff 
 siiould recover in this action; but Lord Ellenborougli held, and 
 the Court of King's bench were afterwards of the satne opinion, 
 that the release in question, comfirehending all futiu'e claims in 
 consequence of any cause existing at the time of granting the re- 
 lease, would extend to bar any claim of the defendant as surety 
 on the bill, his being an inchoate cause of action then existing. (Z) 
 
 By minor. j^ an action against a minor w'ho appears by his guardian, a 
 
 release by the guardian will not be sufficient, the guardian not 
 having any authority to release. (4) (m) A release of a bond debt 
 
 Co-obligee. by one of several obligees will operate as a release by all;(5) (n) and 
 a release to one of several obligors will have the same effect as to all 
 the others, whether the bond be joint, or joint and several. (6) (o) 
 
 (1) Simons v. Smiili, 1 Ry. Mo. 29. (5) Bayley v. Lloyd, 7 Mod. 250. 
 
 (2) Scon V. Lifford, 1 Campb. 249. (6) Co Lit. 252. a. 2 Roll. Ab. 412. 
 
 (3) Stiirkie, N. P. C. 342. (G.) 1 Bos. & Pul. 630. 
 |4) Fraser v. Marsh, 2 Starkie, N. 
 
 P. C. 41. 
 
 (/(•) See Note 262, p. 266. (I) See Note 263, p. 267. (m) See Note 264, p. 268. 
 (n) See Note 265, p. 269. (o) See Note 266, p. 269.
 
 Sect. 8.] of an interested Witness. 135 
 
 On a trial for forgery, a release from the holder of a promissory 
 
 note to the supposed maker, in whose name it was forged, (there In forgery and 
 
 111 ultenng. 
 beino- no other name on the note, to whom the maker could be 
 
 liable,) made him a competent witness to prove the forgery of Maker, 
 his hand-writing, against the prisoner who had passed it off to 
 such holder without any indorsement. (1) And he will be com- 
 petent, though the note was not payable to order or to bearer, so 
 as to be negotiable, but simply to the prisoner, if the prisoner passed 
 it to the owner for full value. (2) 
 
 On an indictment against the drawer of a bill, the supposed Acceptor, 
 acceptor is made competent by a release from the holder; in 
 case the drawer has received value for the bill from such 
 holder. (3j 
 
 On an indictment against the payee of a bill for forging an 
 acceptance, the supposed acceptor is made competent by a release 
 from the first indorsee; though the indorsee advanced to the 
 payee only part of the amount of the bill: the indorsee also in 
 such case is competent. (4) 
 
 But the supposed indorser (and payee) is not rendered com- indorser. 
 petent by a release from the holder who has not given value 
 for it; for he has no interest in the bill, and the prisoner appear- 
 ing the holder, a release from any other person would not be 
 effectual. (5) 
 
 Where the forgery consists In altering a genuine instrument, so Drawer, 
 as to give it a belter credit, but does not vary the responsibility of 
 the drawer or maker, the drawer or maker is a competent witness 
 to prove the forgery. This has been held in a case, where, the 
 forgery introduced a new place for payment. (6) (p) 
 
 A residuary legatee is not rendered a competent witness, in an f^pgjju ^ 
 action by an executor to recover a debt due to the testator, by legatee. 
 
 (1) Akehurst's case, 1 Leach, Cr. 4th ed. 451, 452. Russ. & Ry Cr. 
 C. 178. Dr. Dodd's case, ib. 184. C. 435, S. C. 
 
 (2) See Akehurst's case, supra: (5) R. v. Young, Wore. Lent Ass. 
 and Bayley on Bills, 4th ed. 451. 1805, MS. Russ. Ry. Cr. C. 280. S. 
 
 (3) R. V. Peacock, Russ. Ry. Cr. C. C. in note. 
 
 278- (6) R. V. Treble, Bayley on Bills, 
 
 (4) R. V. Mott, Bayley on Bills, 455. 
 
 (p) See Note 267, p. 269.
 
 1S6 Of restoring the Competency [Ch. 5. 
 
 Relense releasing all claim to ihe debt in question; for if the plaintiff 
 
 ~ fiiil in the suit, ahhougii he would not be liable for costs to the op- 
 posite side, he must pay costs to his own attorney. (1) The exec- 
 utor would be eniiiled to the allowance of these costs out of the es- 
 tate, the action being brought bona fide; and thus independently, 
 of the debt to be recovered, the residue would be diminished. 
 'J'he witness, therefore, has still an interest to support the action 
 and can only be rendered competent by releasing the residue, or, 
 by release of the costs of the action from the attorney, [q) 
 
 Member of When a witness is objected to as a member of a corporation, 
 
 LorporaUon. •it- ' i 
 
 whose mterests are questioned, his competency may be restored 
 either by his resignation, (which will be effectual even by parol. 
 Provided it has been accepted, and another person elected in his 
 place,) (2), or by disfranchisement. The method of disfranchise- 
 ment is said to be by an information in the nature of a quo warran- 
 to against the member, who then confesses the information, and 
 upon that there is judgtiient of disfranchisement. (3) This judg- 
 ment must be n\c\\ as cannot be avoided; for if it appear that the 
 witness can avoid the judgment for irregularity, (as he may, if he 
 has never been summoned, and knew nothing of his disfranchise- 
 ment,) he is not competent. (4) (r) 
 
 Bail. The defendant's bail are not competent to give evidence for their 
 
 principal. (5) To restore their competency, the defendant must 
 apply to the court, on an affidavit stating that the bail will be a 
 material witness for him, to have bis name struck out of the bail 
 piece on adding and justifying another in his place. (6) (s) 
 
 Release, when ^ release is in some cases unnecessary, and the witness though 
 unnecessary, interested will be admitted without a release. 
 
 1 First, where the witness offers to surrender or release his 
 1. Oner to ' , l* • 
 
 release. interest, and does all in his power to clear away every objection 
 
 (1) Baker V. Tyrwhitt, 4 Campb. 27. (4) Brown v. Corp. of London, U 
 
 (2) 11. V. Mayor, &c. of Ripon, 2 Mod. 22.5. 
 
 SalU. 432. Com. Dig. tit. Franchise (5) Vide supra, p. 59. 
 
 (p 30 ) (6) Tidd, Pr. 264. CoUetty, JenniS, 
 
 (3) The case of the Mayor, &c. of Rep. temp. Hard. 133. 
 Colchester, 1 P. Wins. 595, n. 
 
 (2) Seo Note 268, p. 269. (r) See Note 269, p. 270. (s) See Note 270, p. 270.
 
 Sect. 8.] of an inttrested Witness. 137 
 
 to his testimony, but the other party refuses to accept the release, 
 in that case the evidence of the witness may be received. (1) {t) 
 Or if the parly, on whose side the witness is interested makes an 
 offer to remove all interest, and the witness refuses, that will not 
 deprive the party of his testimony, (w) 
 
 In the case of Anstey v. Dowsing, (2) indeed, Lee C. J. express- Legatee. 
 ed an opinion, that a legatee was not competent to prove the due 
 execution of the will, although payment of the legacy was tender- 
 ed to him, which tender he refused. But the ground of this opin- 
 ion was, that, even, if he had accepted the legacy, he still would 
 have been incompetent, as having been interested at the time of *^'"®°'- 
 attestation; a point, on which there has been some difference of 
 opinion, but the greatest authorities are in support of the contrary 
 proposition, namely, that the payment of the legacy would restore 
 the competency of the witness. (3) 
 
 If a witness has acquired an interest in the subiect-matter, for ^- .^"^.^"^^ ^'^- 
 . . •' quired Iraudu- 
 
 the mere purpose of depriving the party to the suit of the benefit lently. 
 
 of his testimony, this ought not to exclude him from giving evi- 
 dence. It was ruled by Lord Holt in the case of Barlow v. 
 Vowel, (4) that if a man be a witness of a wager, and afterward? 
 bet himself, this shall not be a reason to except against his being Wager. 
 sworn to prove the wager. And from analogy to this case. Lord 
 Kenyon and Mr. Justice Ashhurst were of opinion in the case 
 of Bent V. Baker, (5) (where, on the trial of an action on a pol- 
 icy of insurance, the broker had been called as vvitness for the 
 defendant, but rejected, because he had underwritten the policy 
 after the defendant,) that even if it were true in general, that one 
 underwriter could not be a witness for another, yet the witness 
 ought to have been admitted in that case, as the defendant had 
 acquired an interest in his testimony before the witness had 
 signed the policy. And they laid down as a general principle, 
 deducible from the case of Barlow v. Vowel, that where a per- 
 son makes himself a party in interest after a plaintiff or defendant 
 
 (1) Goodtille dem. Fowler v. Wei- (4) Skin. 5S6. See Rescous v. 
 ford, 1 Doug. 139. 3 T. R. 35. Williams, 3 Lev. 152, nnd Covvp 736. 
 
 (2) 2 Str. 1253. Vide supra, p. 133, n. (5) 3 T. R. 27. Vide supra, p. 4S. 
 
 (3) Vide Supra, p. 133, n. 
 
 C/) See Note 271, p. 272. («) Sae Note 272, p- 272^ 
 
 Vol. L 18
 
 138 
 
 Of restoring the Competency 
 
 [Ch. b. 
 
 has an interest in his testimony, he may not by this deprive the 
 plaintiff or defendant of his testimony. 
 
 Interest acqni- However, it appears to be rather doubtful, whether this pro- 
 red since cause ... , . , , , mi • 
 ©faction. position IS not expressed in too large and general terms. 1 he in- 
 competency of a witness, on account of interest, must depend rath_ 
 er on the nature of the interest, than upon the time of acquiring it. 
 The quefjtion on the voire dire is, whether he is interested at the 
 time of his examination. If he is directly interested at that lime, 
 he is not a competent witness in general without a release, and it 
 seems to be no answer to the objection, to show that he has become 
 interested only since the commencement of the action, or since the 
 time of his being acquainted with the fact, which he is called to 
 prove. If, for example, tiie question is on a customary right of 
 common, a witness will be incompetent, who admits upon the vo-iro 
 dire, that he is in the occupation of a messuage, and that he claims 
 a similar right of common as annexed to his tenement; and it can- 
 not be material, whether he has been in possession for a number of 
 years, or had the tenement only just before the trial of the cause. 
 In either case he appears to be equally incompetent: yet in the 
 latter it may be said, that he acquired his interest, after the party 
 had become interested in his testimony. The case of Barlow v. 
 Vowel must be considered as having determined on the grourvd 
 of fraud: the witness, proposed to be examined, was the original 
 witness of the wager; it was a fraud, therefore, to deprive the par- 
 ty of the benefit of his testimony. (1) 
 
 Underwriter 
 having paid. 
 
 In the late case of Forester v. Pigou, (2) where the defendant 
 in an action on a policy of insurance, called another under- 
 writer to prove the policy void on account of a misrepresen- 
 tation of the nature of the risk, and upon the voire dire 
 the witness stated, " that he had paid the loss to the plaintiff, 
 upon an understanding that he was to be repaid in the event of 
 this action failing, and that he had since received a letter from 
 the plaintiff promising to return the money in that event," an 
 objection was taken to his competency, on the ground of his 
 
 (1) By Lord Ellenborougli in Fo- (2) 3 Csmpb. 38(K I Maul© & 
 tester v. Pigou, 1 Msiule & Selw. 9, in Selvv. 9, S. C. 
 which ibis caae was much cited.
 
 Sect. 8.] of an interested Witness. 139 
 
 being interested in the event; the point was argued on the other 
 side upon the authority of Barlow v. Vowel, and it was said, 
 the witness had not become interested nntil after the commence- 
 ment of the action, and that the plaintiff ought not to be allowed 
 to defeat by his own act the interest which the defendant had in 
 the witness' testimony; but the witness was considered to be 
 incompetent and rejected: for although the witness would not be 
 disqualified by any agreement fraudulently entered into between 
 him and the plaintiff for the purpose of taking off his testimony, 
 yet on the other hand the pendency of a suit could not prevent 
 third persons from transacting business bona fide with one of the 
 parlies; and if an interest in the event of the suit is thereby 
 acquired, the general consequence of law must follow, that the 
 person so interested cannot be ^examined as a witness for that 
 party, from whose success he will necessarily derive an advantage. 
 A motion was afterwards made for a new trial, on account of 
 the rejection of this witness, as well as of another also, who was 
 similarly situated; and a new trial was granted for the purpose 
 of ascertaining more particularly the precise time, when the 
 undertaking was made to the witnesses; but the court added, 
 that, if a person, who is under no obligation to become a witness 
 for either of the parties to a suit, choose to pay his debt before- 
 hand, upon a condition that is to be determined by the event of 
 the suit, he becomes as much interested in the event, as if he were 
 a party to a consolidation rule, (r) 
 
 Lord Raymond, in the case of the Kins; v. Fox, f I) admitted ^'^^g^'"' <"> 
 •' ' 3 ' \ / conviction. 
 
 the prosecutor to be a witness, although he had laid a wager, 
 that he should convict the defendant: and the true reason seems 
 to be, not because the witness had made the wager at a lime 
 when public justice became interested in his testimony, but be- 
 cause it would be against public policy to allow a witness by any 
 such gratuitous act to exclude himself from giving evidence. 
 In addition to this, it may be observed, that the wager would 
 now probably be considered absolutely void, on a principle of pub- 
 lic, policy, as tending to produce an improper bias on the mind of 
 the witness, and therefore as directly prejudicial to the administra- 
 tion of justice. 
 
 (1) 1 Sir. 652. 
 (t>) See Note 273, p. 272.
 
 S. Witness 
 indifferent. 
 
 140 Of the Admissibility of Counsel or Solicitor. [Ch. 6. 
 
 3. When the witness must be answerable to one or the other 
 of the parties, and the event of the suit determines only to 
 which, he may be examined by either of them without a release. 
 Thus, in an action of assumpsit for money paid to the use of 
 the defendants, who were ship-owners, Lord Kenyon admitted 
 the captain to prove, that he had received the money from the 
 plaintiff for the defendant's use; for he stood indifferent between 
 the parties, and he was equally answerable, whichever way the 
 verdict might go. (1) {w) 
 
 (1) Evans v. Williams, 7 T. R. 481, n. (c.J 
 
 CHAP. VL 
 
 Of the Admissibility of Counsel or Solicitor. 
 
 The objections to the competency of a witness, which have 
 been considered in the four preceding chapters, are of a nature to 
 exclude him from giving any kind of evidence. One other objec- 
 tion still remains to be considered: not an objection to his general 
 competency, but to particular evidence, which he may be called 
 upon to disclose. This is founded on the professional confidence, 
 which a client reposes in his counsel, attorney, or solicitor, and 
 which courts of justice ever bold to be iiiviolable. (2) 
 
 Geueral rule. Confidential communiontions between attorney and client are 
 not to be revealed at any period of time; (x) not in an action 
 between third persons — nor after the proceeding, to which they 
 referred, is at an end — nor after the dismissal of the attor- 
 ney. (3) The privilege of not being examined to such points, 
 as have been communicated to the attorney while engaged in 
 his professional capacity, is the privilege of the client, not of 
 the attorney; and it never ceases, (y) " It is not sufficient 
 
 (2) Lord Say and Seaie's case, (3) Wilson v. Ratstall, 4 T. T. 759, 
 
 10 Mod. 40. Bull. N. P. 284. Cuts 760. Slotnan v. Heme, 2 Esq. N. P. 
 
 V. Pickering, I Ventr. 197. The C. 695. R. v. Withers, 2 Campb. 
 
 reader may see some very judicious 578. Gainsford v. Grammar, 2 Campb. 
 
 observations on this subject in Burnet's 10. Parkhurst v. Lowten, 2 Swanst. 
 
 Treatise on the Criminal Law of Scot- 197 — 221. 
 land, p. 435—438. 
 
 (lo) See Note 277, p. 275. (x) ,See Note 275, p. 275. (y) See Note 276, p. 27 6.
 
 Ch. 6.] Of the Admissibility of Counsel of Solictor. 141 
 
 to say, the cause is at an end; the mouth of such a person is 
 shut forever." (1) 
 
 If the client waive his privilege, the attorney may be examined. Pri^iieg* 
 In an action by the assignees of a bankrupt, communications, made 
 by him to his attorney before his bankruptcy, were admitted in evi- 
 dence, the bankrupt himself being present and consenting. (2) (2) 
 
 An attorney will not be allowed to produce a deed which has Deedorwrit- 
 , . . • 11 • 1 • c • ing deposited. 
 
 been deposited with him confidentially in his professional charac- 
 ter: and if the deed has been obtained out of his hands, for the 
 purpose of being produced in evidence by another witness, it can- 
 not be received. Thus in a case, tried before Mr. Justice Bayley, 
 (3) the plaintiff's counsel having proved a certain deed in the pos- 
 session of the defendant, and the defendant refusing to produce it, 
 though he admitted having received notice, the counsel for the 
 plaintiff offered in evidence a copy of the deed, which had been 
 obtained from one who acted many years ago as attorney for the 
 person, under whom the defendant claimed, and who had been 
 entrusted by him with the original deed in his professional charac- 
 ter. The counsel on the part of the defendant objected, that this 
 evidence ought not to be received, as the original deed had been 
 deposited confidentially with the attorney; and Mr. Justice Bay- 
 ley refused to admit it. He said, " The attorney could not give 
 parol evidence of the contents of the deed, which had been entrust- 
 ed to him; so neither could he furnish a copy. He ought not to 
 have communicated to others what was deposited with him in con- 
 fidence, whether it was a writing or a verbal communication. It 
 is the privilege of his client, and continues from first to last. 
 
 As a witness cannot be bound to produce his title deeds to an j,, cause be- 
 
 estate, so neither can his solicitor produce them, in a cause be- ^ween third 
 
 ... TT 1 • • 1 • 7 1 persons, 
 
 tween third persons. Upon the same principle it has been held, 
 
 that a solicitor of one of the parties to a deed of composition, 
 
 between a company of water-works and their creditors, is not 
 
 compellable to produce it; he demurred to the production, con- 
 
 (l') By Duller J. 4 T. R. 759. Ass. 1809. Brard v. Ackermati, 5Esp. 
 
 (2) Merle v. Moore, Ry. Mu. 390. N. P. C. 119. See Copeland v. Watts, 
 
 (3) Fisher v. Heming, Leic. Lent 1 Starkie, N. P. C. 95. 
 
 (z) See Note 277. p. 276.
 
 142 Of the Admissibilitij of Counsel or Solicitor. [Cli. 6. 
 
 ceiving that it might prejudice his client. (1) And a soHcitor to 
 assignees of a bankrupt is not compellable to produce the proceed- 
 ings under the commission, the assignees having a cause pending 
 against the defendant, which might be prejudiced by a disclosure, 
 though not connected immediately with the cause on trial. (2) A 
 retainer to counsel for a cause is strictly a privileged communica- 
 tion. (3) (a) 
 
 cutions. The following instance, which occurred before Mr. Justice 
 
 Holroyd, (4) shews, how strictly the obligation of secrecy is 
 enforced, between attorney and client, even in a case where the 
 interests of criminal justice were concerned. In a prosecu- 
 tion for the forgery of a promissory note, an attorney, who had 
 the note in his possession, refused to produce it before the clerk 
 of arraigns, who required it for tlie purpose of setting it out in 
 the indictment: upon which, he was summoned to appear before 
 the judge, and show cause why he should not produce the note. 
 He accordingly attended, together with counsel for the prose- 
 cution, and counsel for the prisoner. Mr. Justice Holroyd in- 
 quired minutely into the circumstances, by which he had the 
 note in his possession; when, it appeared, on the statement of 
 the attorney, that he had been consulted by the prisoner on the 
 note in question, and that by his direction he had commenced 
 an action, to recover the amount of the note, against the person 
 in whose name it was now supposed to be forged: that a short 
 time afterwards, he had been summoned before a magistrate, 
 when the prisoner was apprehended on a charge of forgery, and 
 he was then desired to produce the note: upon this, he inquir- 
 ed of the prisoner, who was present, whether he would consent 
 to its being produced: the prisoner consented, asserting his 
 innocence, and the note was accordingly produced. The magis- 
 trate, after taking the depositions of witnesses, remarked, that 
 he thought it would be proper to deposite the note in the 
 hands of the high constable: on which the attorney said, that 
 as the note had come into his hands professionally from his client 
 he expected to have it restored to him, at the same time asking 
 
 (1) Norris v. Hill, 8 Stark. N. P. C. (3) Foote v. Haynes, 1 Rj. Mo. 165. 
 140. (4) R. V. Smith, Derby Sam. Ass. 
 
 (2) Laingv. Barclay, 3 Stark. i\. P. 1822. In support of this decision, See 
 C. 42. R. V. Dixon, 3 Burr. 1687- 
 
 (o) See Note 278, p- 276,
 
 Ch. 6.] Of the Admissibility of Counsel or Solicitor. 1-^3 
 
 the prisoner, whether he would consent to its being deposited with 
 the high constable, and the prisoner replied, he wished it to be 
 placed in the hands of his attorney. The magistrate returned 
 the note to the attorney, observing, that he would doubtless have 
 notice to produce it at the trial. The attorney (who was not, 
 however, en) ployed professionally for the prisoner in the ensuing 
 trial,) had been subpoenaed to produce the note, which was still 
 in his possession: but, before he was subposnaed, a demand of the 
 note had been made upon him by llie attorney now employed in 
 the prisoner's defence. On these facts the question was argued 
 by the counsel for the prosecution, and the counsel for the prison- 
 er; and Mr. Justice Holroyd said, he would consider the point. 
 On the following day the subject was again mentioned, when Mr. 
 Justice Holroyd refused to make an order upon the attorney to 
 produce the note, or to give a copy of it, to the clerk of arraigns. A 
 bill, charging the prisoner with forgery, was prepared, and found 
 by the grand jury. At the trial, the same attorney was called, on 
 the part of the prosecution, for the purpose of producing the note; 
 and on his re-stating the facts above detailed, the learned judge 
 declared his opinion, that he ought not to produce it. Secondary 
 evidence of its contents was not offered; the prosecution conse- 
 quently failed; and the prisoner Vv-as acquitted. (6) 
 
 This privilege of the client has not been confined to those cases Extent orrnle. 
 only where the attorney has been employed about a suit or cause, 
 but has been extended to all such communications as were made 
 to him in his professional character, and with reference to profes- 
 sional business. Thus, if an attorney were professionally employ- 
 ed to make a draft of an assignment of goods, which, however, he 
 declined to make, it has been held that he would not be allowed 
 to disclose that circumstance, in case a question should arise, 
 whether an assignment, subsequently drawn by another attorney, 
 was fraudulent: (I) and if he were to be consulted on the title to 
 
 (1) Cromack v. Heaihcote, 2 Brod. ted for the purpose of bringing nn nction 
 
 & Bing. 4. 4 J. B. Moore, .357, S. or suit, or relating to a cause (.r suit cx- 
 
 C GMinsford v. Grarnni;ir, 2 Cainpb. isiing at the time of the conirnunica- 
 
 9. But see Wadswoitli v. Hatiishiiw. tioii, is confidential and privileged ; 
 
 2 Brod. & Bing. 5, in note, and VVil- but what an attorney learns oiherwi.so 
 
 lianis V. Mundie, 1 Ry. & Mo 34, than fur the purpose of a cause or suit, 
 
 where Abbott, C J. laid down the he is bound to communicate. Aud see 2 
 
 rule to be, that what is comniunica- Barn. & Cress. 749. 
 
 (6) See Note 279, p. 276.
 
 144 Of the Admissibility of Counsel or Solicitor. [Ch. 6. 
 
 an estate, that he would not be allowed to disclose any information 
 
 thus communicated to him, to the prejudice of his client. (1) (c) 
 
 Interpreter. A person who acts as interpreter, (2) or agent, (3) between an 
 
 attorney and his client, stands precisely in the same situation as 
 
 Agent. j^g attorney himself ; he is considered as the organ of the attor- 
 
 ney, and is under the same conditions of secrecy, {d) But it has 
 been ruled at Nisi Prius, that a person who was consulted confi- 
 dentially on the supposition of his being an attorney, when in fact 
 he was not one, is compellable to answer. (4) 
 
 Rule confined This professional privilege extends to the three enumerated 
 
 to professional c i i- • i i • • r- i 
 
 advisers. cases 01 counsel, solicitor, and attorney ; but it is conhned to 
 
 those cases alone. (5) There are, indeed, cases, said Mr. Jus- 
 tice Buller, in the case of Wilson v. Raslall, to which it is much 
 to be lamented that the law of privilege is not extended; those, 
 in which medical persons are obliged to disclose the information, 
 which they have acquired by attending in their professional char- 
 acters. (6) This point was much considered in the Duchess 
 of Kingston's case, where Sir C. Hawkins, ^v•ho had attended the 
 duchess as a medical man, was compelled to disclose what had 
 been committed to him in confidence. (7) Lord Kenyon in the 
 same case of Wilson v. Rastall, observed, "If a friend could not 
 reveal what was imparted to hiin in confidence, what is to be- 
 come of many cases, even affecting life, for instance Doctor Rat- 
 cliff's case.'' (8) And if the privilege, now claimed, extended 
 to all cases and persons, Lord W. Russel died by the liands of 
 an assassin, and not by the hands of the law; for his friend Lord 
 Howard was permitted to give evidence of confidential conver- 
 sations between them. (9) All good men, indeed, thought that 
 
 (1) 2 Brod. & Bing 6, by Richard- (4) Fountain v. Young, 6 Esp. N. P. 
 son, J. C. 113. 
 
 (2) Du Barre v. Livette, Peake, (5) 4 T. R. 758, Vaillant v Dode- 
 N. P. C. 78, cited by Lord Kenyon, mead, 2 Alk. 524. 2 Svvanst. 221. 
 
 4 T. R. 756. (6) 4 T. R. 759. See also R. v. 
 
 (3) Parkins v. Hawksliaw, 2 Stark. Sparkes, cited in Peake, N. P. C. 77, Du 
 N. P. C. 239 In this case the agent Barre v. Llvelte. 
 
 for the defendant's attorney was pro- (7) 20 Howell's St Tr. 613, 614. 
 
 posed to be examined as to communica- (S) 9 St. Tr. 582, fol. ed. S. C. 19 
 
 tions which he had with the defendant, Howell's St. Tr. 428. 
 
 for the purpose of proving 1 he identity of (9) 3 St. Tr. 715, fol. ed. S. C. 9 
 
 the party in an action on a bond, -but re- Howell's St. Tr. 599. 
 
 jectcd by Holroyd, J. 
 
 (c) See Note 280, p. 277. {d) See Note 281, p- 273.
 
 Ch. 6.] Of the Admissibility of Counsel or Solicitor. 145 
 
 he should have gone ahnost all lengths rather than have betrayed 
 that confidence; but still, if the privilege had extended to such a 
 case, it was the business of the court to interfere, and prevent the 
 evidence being given. 
 
 In a case at Nisi Prius, where a clerk to the commissioners of Clerk to com- 
 ihe property-tax was called to prove the defendant a collector, and ""s^"^^^''*- ^ 
 refused to give evidence, on the ground of, his having taken an 
 oath of office not to disclose what he should learn as clerk re- 
 specting the property-tax, except with the consent of the commis- 
 sioners, or by force of an act of parliament, the court held, that Oath of office 
 this oath would not exempt the witness, and that it must be con- 
 strued, as containing an implied exception of the evidence, which 
 he might be called to give in courts of justice, in obedience to the^ 
 writ of subpoena. (1) In an early case, (2) indeed where the 
 defendant pleaded, to an action of debt on a bond, the statute 
 against buying and selling of offices, and called a witness to show 
 on what occasion the bond was given, Lord Holt is said to have 
 refused his evidence, because it appeared, that he was privately 
 intrusted to make the bargain, and keep it secret. But the prin- 
 ciple and authority of this case seem to have been overruled by 
 that of Wilson v. Rastall, and the latter decisions on this sub- 
 ject, (e) 
 
 A person, by profession an attorney, but not employed as at- Attorney not 
 lorney in the particular business, which is the subject of inquiry, g^^^"-'' 
 is not within the rule, although he may have been consulted confi- 
 dentially. (3) (/) 
 
 Pfopositioss, which the attorney of one party has been profes- Terms offered 
 
 II 11 1 II , f. . 1 before third 
 
 sionaily employed to make to the adverse party, and winch he persoo. 
 made in the presence of a third person, though they are not to be 
 disclosed by the attorney himself, may yet be proved by the per- 
 son, who heard him deliver them. (4) (g) 
 
 The attorney of a party in the cause may be examined, like Attorney ex- 
 aminable, to 
 
 (1) Lee q. t. V. Birrel, 3 Campb. (3) Wilson v. Rastall, 4 T. R. ToS, ^^'^''"• 
 837. 760. 
 
 (2) Ball. N. P. 234. (4) Gainsford v. Grammar, 2 Campb. 
 
 10. 
 
 (fi) See Note 232, p. 278. (/ ) See Note 2S3, p. 2S0. (§■) Sea Note 2S4, p. 231. 
 
 Vol. I. 19
 
 146 
 
 Of the Admissibility of Counsel or Solicitor. [Ch. 6. 
 
 Execution. 
 Erasure. 
 
 Swearing. 
 
 Notice. 
 
 Usnrj. 
 
 any other witness, as to a fact which he knew before the retainer, 
 that is, before he was addressed in his professional character; (1) 
 or, where he has made himself a party to the transaction; (2) or, 
 where he is questioned to a collateral fact within his own know- 
 ledge, or to a fact which he might have known without being in- 
 trusted as attorney in the cause. (3) (/i) Thus, if he is a sub- 
 scribing witness to a deed, he may be examined Concerning the 
 execution. (4) (i) .Or, if there be a question about an erasure in a 
 deed or will, he may be asked, whether he had ever seen the in- 
 strument in any other state, for it is a fact within his own know- 
 ledge ; but he ought not to be permitted to disclose any confes- 
 sions, which his client may have made to him on the subject. (5) 
 Or, if an attorney were present, when his client was sworn to an 
 answer in chancery, he might be a witness, on an indictment for 
 perjury, to prove the fact of taking the oath, which is a fact not 
 peculiarly within his knowledge as an attorney, and not commit- 
 ted to him in secrecy. (6) So, the attorney of one of the parties 
 may be examined as to the contents of a written notice, which had 
 been received by him in the course of the cause, requiring him to 
 produce papers. (7) (J) 
 
 On the same principle, in an action of debt upon a bond, the 
 plaintiff's attorney was admitted by Lord Kenyon to prove, that 
 the bond had been given on an usurious consideration. (8) . And 
 where a person (who had brought an action on a promissory 
 note, which was afterwards compromised by the defendant,) had 
 Consideratbn. informed the attorney after the compromise, that there never had 
 been any consideration for the note, the Court of King's Bench 
 held, that the attorney was compellable to disclose that circum- 
 stance, in an action brought to recover back the money. (9) 
 The communication, said Lord Kenyon, was not here made in 
 
 (1) Cuts V. Pickering, 1 Vent. 197. (4) Doe dem. Jupp v. Andrews, 
 Lord Say and Seale's case, 10 Mod. Covvp. 846. Rohson v. Kemp, 4 Esp. 
 40; S. C. Bull. N. P. 284. 4T. R. 759. N. P. C. 2.35; 5 Esp N. P. C. 53. 
 
 (2) Duffin V. Sniilii, Peake, N. P. C. (5) Bull. N. P. 284. 1 Venlr. 197. 
 108. Robson v. Kemp, 5 Esp. N. P. C. (6) Bull. N. P. 2S4. By Lord Mans- 
 52. Cowp. 845. field, C. J. in Cowp. 846. 
 
 (3) Bull. N P. 384. By Lord Mans- (7) Spenceley v. Schnlienberg, 7 
 field, C. J. in Duchess of Kingston's East. 357. 
 
 case, 11 St. Tr. 253, fol. ed. S. C. (8) Duffin v. Smiih, Peake, N. P. 
 
 20 Howell's St. Tr. 612. And See C. 108. 
 
 Parkins v. Hawkshaw, stated anto, (9) Cobden v. Kendrick, 4 T. R. 
 
 p. 144. 432. 
 
 (A) See Note 286, p. 281. (i) See Note 286, p. 281. (;) See Note 287, p. 28L
 
 Ch. 6.] Of the Admissibility of Counsel or Solicitor. 147 
 
 contemplation of a suit; on the contrary, the purpose in view had 
 been already obtained; and what was said by the client was from 
 exultation, in having before deceived his attorney as well as his 
 adversary. 
 
 Communications which a person has had with an attorney, re- Opinion as to 
 
 r , . ,. , , . , . , , matter of fact, 
 
 spectuig a meeting ot his creditors, and as to his being able to at- 
 tend without being arrested for debt, are not privileged. (1) " A 
 question for legal advice," said Abbott C. J., " may come within 
 the description of a confidental communication, because it is part 
 of the attorney's duty, as attorney, to give legal advice; but a 
 question for information as to matter of fact, as to a communication 
 the attorney has made to others, where the communication might 
 have been made by any other person as well as an attorney, and 
 where the character or office of attorney has not been called into 
 action, has never been held within the protection, and is not with- 
 in the principle upon which the privilege is founded. "(fc) 
 
 If the attorney of one of the parties to the suit is examined as ^^^^ "'^ .'" 
 a witness for his client, the counsel on the other side may cross- ation. 
 examine him as to the same matter, but not as to any other points 
 of the cause; (2) on all such points the privilege of the client seals 
 his lips. 
 
 After taking a view of the law of England, it may not be ^"'®^ 0*^^°- 
 
 1 1 1 ^ . ^ Kian law. 
 
 thought uninteresting to mention, what was the rule of the Ro- 
 man law, respecting the disqualification of witnesses. The prin- 
 cipal rules were the following: — " Admittendi non sunt ad testi- 
 monii fidem, qui impuberes erunt: qui judicio publico damnati 
 erunt, et qui eorum in integrum restitutiis non erii: quive in vin- 
 culis, cutodiave publica erit. Adulterii, aut repetundarum damna- 
 tus, et ob testimonium dicendum damnatus vel non dicendum, ad 
 testimonium non adhiberi potest. — Nullus idoneus testis in re 
 sua intelligitur. — Testis idoneus pater filio, aut filius patri, non 
 est. — Lege Julia cavetur, ne invito denuntietur, ut testimonium 
 litis dicat adversus socerum, generum vilricum, privignum, so- 
 
 (1) Bramwick v. Lscas, 2 Barn. & (2) Valliant v. Dodemead, 2 Atk. 
 Cress. 744. 524. 
 
 r 
 
 {k) See Note 28S, p. 2S1.
 
 148 Of the principal general Rules of Evidence. [Ch. 7. 
 
 brinum, sobrium, sobrino natum, eosve qui priore gradu sunt. — 
 Idonei non videntur esse testes, quibiis imperari potest, ut testes 
 fianl: donieslici testimonii fides improbatur. — Uniiis omnimodo 
 testis responsio non audiatiir, etiamsi prfficlara} curitE bonore ful- 
 geat. — Testes, qui adversus fidem suaiu tcstationis vacillant, audi- 
 endi non sunt. (1) 
 
 The Roman law will appear, in the foregoing regulations, to 
 have been too narrow and restrictive on the question of incom- 
 petency. Its maxims were much wiser on the subject of the 
 credibilily o( whnesses: " Testium fidf?s (says the Digest,) dili- 
 genter examinanda est. Ideoque in persona eorum exploranda 
 imprimis conditio cujusque: utrum quis decurio an plebius sit: 
 et an bonestse et inculpate vitse, an vero notatus quis et repre- 
 hensibilis: an locuples vel egens sit, ut lucri causa quid facile 
 admiltat: vel an inimicus ei sit, adversus quern testimonium fert: 
 vel amicus ei sit, pro quo testimonium dat. Nam si careat sus- 
 picione testimonium vel propter personam, a qua fertur, quod 
 honesta sit — vel propter causam, quod neque lucri, neque gratiae, 
 neque inimicitise causa sit — admittendus est. Ideoque Divus 
 Hadrianus Vivio Varo legato provincise Ciliciae rescripsit, eum 
 qui judical magis posse scire, quanta fides hadenda sit testibus. 
 Verba epistolae heec sunt. Tu magis scire potes, quanta fides 
 babenda sit testibus: qui, et cujus dignitatis, et cujus sestimationis 
 sint: et qui simpliciter visi sint dicere, utrum unum eundernque 
 meditatum sermonem attulerint, an ad ea quae interrogaveras, ex- 
 tempore verisiiiiilia responderint." (2) 
 
 (1) Digest, lib. 2, tit. 4, de Testibus. (2) Digest, lib. 22, tit. 5, art. S, 
 Domat, b. 3, sect. 3, of Proofs by Wit- 
 nesses. Huberi Prselect. Jur. Civ. lib. 
 22, tit. 4, de Testibus. 
 
 CHAP. VII. 
 
 Of the principal general Rules of Evidence. 
 
 If no objection is made to the competency of a witness, and 
 he is allowed to give evidence, the next question is, what evi- 
 dence ought to be given; and in what manner is the witness to 
 be examined. It will, therefore, now be necessary to enquire
 
 Ch. 7.] Of the principal general Rules of Evidence. 149 
 
 into certain general rules, which have been established for the pur- 
 pose of directing the testimony of witnesses, and for the more ef- 
 fectual attainment of tlie ends of justice. 
 
 Some general rules relate to the issue joined between the par- 
 ties. One of these is, that the evidence, which either party pro- 
 duces, ought to be confined to the points in issue. This is an uni- 
 versal principle or axiom, and admits of no exception. As the 
 true end and object of pleading is to raise the point in issue, so the 
 true aim of evidence must be to hit that point. Every proof ought 
 to bear, directly or indirectly, upon the facts in dispute. And an 
 irrelevant argument is not more unsound in point of reasoning-, 
 than irrelevant evidence is in point of proof. 
 
 Another general rule is, that the substance only of the issue 
 need be proved. This is founded on the principles of good 
 sense and justice. If a party prove the substance of the issue, 
 he has proved a substantial ground of action, and is entitled to 
 his remedy. He will not be obliged to prove immaterial aver- 
 ments, which might be expunged from the record without 
 affecting his right to recover. Such averments serve only to 
 encumber the record; and the proof of them would be as im- 
 material as the averments themselves. The former rule, then, 
 co-operates with good pleading; this counteracts defective 
 pleading. 
 
 A third general rule is, that the affirmative of the issue ought 
 to be proved. This relates to the person who is to prove the 
 issue, and casts the burthen of proof on the affirming party. It is, 
 however, by no means an universal rule, like the two former, and 
 admits of many exceptions. 
 
 The rules, just mentioned, relate to the general aim or ten- 
 dency of proof, with reference to the issue. There are other 
 rules, relating to the medium of proof, independently of the form 
 of the issue. Such is the general rule, that the best evidence 
 which the nature of the case admits, ought to be produced; a 
 rule adopted by courts of justice, as a safeguard and security for 
 the discovery of truth. The rules, before noticed, shew, what 
 facts are to be proved; this shews, hoiv they are to be proved.
 
 150 Of the Number of Witnesses. [Ch. 7. 
 
 The substance of the issue is not only to be proved, but to be 
 proved by the best evidence. — Another rule, usually classed 
 among the general rules of evidence, and relating, like the last, 
 to the medium of proof, is, that hearsay of a fact is not admis- 
 sible. 
 
 The consideration of these rules will form the subject of the 
 present chapter. But before we come to examine them, it will 
 be convenient to inquire, first, in what cases the testimony of a 
 single witness is not sufficient proof of a fact: and, secondly, as 
 to the nature of presumptive evidence. 
 
 The order in which it is proposed to consider the subject, is the 
 following: 
 
 First, Of the number of witnesses for the proof of a fact: 
 
 Secondly, Of the nature of presumptive evidence: 
 
 Thirdly, That evidence is to be confined to the points in 
 
 issue; 
 
 Fourthly, That the affirmative of the issue is to be proved: 
 
 Fifthly, That the substance only of the issue need be proved: 
 
 Sixthly, That the best evidence is to be given, which the na- 
 ture of the case admits: 
 
 Lastly, That hearsay evidence is not admissible. 
 
 Sect. I. 
 0/ the dumber of Witnesses^ for the Proof of a Fact. 
 
 General rule. The general rule of the common law, is, that a single witness, 
 if credible, is sufficient for the proof of any fact. The law of Eng- 
 land differs in this respect from the civil law, of which one 
 maxim is, " unius responsio non omnio audiatur;" and by the 
 law of Scotland at this day, the testimony of a single witness is
 
 Sect. 1.] Of the Number of Witnesses. 151 
 
 not lawful evidence to convict. (1) Lord Coke has said in his 
 Commentary, (2) that " when a trial is by witnesses, as in the 
 case of the challenge of a juror or summons of a tenant, the affirma- 
 tion ought to be proved by two or more witnesses, but, where the 
 trial is by verdict, there the judgment is not given upon witnesses, 
 but upon the verdict, and upon such evidence as is given to the 
 jury they find their verdict." But this distinction has been denied 
 by Lord Holt, (3) and the doctrine is said not to be warranted by 
 the authorities cited in its support, 
 
 In deciding upon ihe effect of evidence, the question isj not by 
 how many witnesses a fact may have been proved, but whether it 
 has been proved satisfactorily, and so as to convince the under- 
 standing. The number of witnesses is not more conclusive on 
 matters of proof, than a number of arguments on a subject of rea- 
 soning. If the law were in every case to require peremptorily two 
 witnesses, this would by no means ensure the discovery of truth; 
 but it would infallibly obstruct its discovery, wherever a fact is 
 known only to a single witness; and thus secret crimes might es- 
 cape with impunity. Abstractedly speaking, there cannot be any 
 reason for suspecting the evidence of a witness, because he stands 
 alone. The evidence of a single witness may be so clear, so full, 
 so impartial, so free from all suspicion and bias, as to produce in 
 every mind, even in the most scrupulous, the strongest and deepest 
 conviction. On the other hand, witness may crowd after witness, 
 all asserting the same facts, yet none be worthy of credit. In short, 
 it is the character of witnesses, and the character of their evidence, 
 that ought to prevail, not their number. 
 
 By the law of England, hov/ever, the testimony of a single wit- 
 ness will not be sufficient in cases of perjury and high treason. 
 
 On an indictment for perjury, the evidence of one witness is not In case of 
 sufficient to convict the defendant ; because then there would P^'^^^'^^* 
 only be one oath against another. " To convict a man of perju- 
 ry," said C. J. Parker, in the case of the Queen v. Muscot, (4) 
 
 (1) Hume's Comment, on the Laws (3) Shotter v. Friend, Carft. 144. 
 of Scotland, 2d vol. 369. (4) 10 Mod. 193 
 
 (2) Co. Lit. 6, b.
 
 152 Of the Number of Witnesses. [Ch. 7. 
 
 *' there must be strong and clear evidence, and more numerous 
 ilian the evidence given for the defendant." It does not appear to 
 have heen laid down, that tico icitnesses are necesssary to disprove 
 the fact sworn to by the defendant; nor does that seem to be ab- 
 solutely requisite. But, at least, one witness is not sufficient; and, 
 in addition to his testimony, some other independent evidence 
 ought to be produced. (/) 
 
 In cnse of 
 treason. 
 
 It was enacted, for the security of the subject, by stat. 1 Ed. 6, 
 c. 12, s. 22, that " no person shall be indicted, arraigned, con- 
 demned, or convicted for any offence of treason, petit treason, mis- 
 prision of treason, unless the offender be accused by two sufficient 
 and lawful witnesses, or willingly, without violence, confess the 
 same." It has generally been thought, that a single witness would 
 have been sufficient, at common law, on the trial of those offen- 
 ces; (m) and this stat. of Ed. 6, is the first act of the legislature 
 by which two witnesses are specially required. (1) A sin^.ilar pro- 
 5, 6 Ed. 6, c. vision is contained in the stat. 5, 6 Ed. 6, c. 11, s. 12, which en- 
 !*• acts, that " no person shall be indicted, arraigned, condemned, con- 
 
 victed, or attainted for any of the treasons or offences in that act 
 mentioned, or for any treasons which then were or hereafter might 
 be, unless the offender be accused by two lawful accusers, who, at 
 the time of the arraignment of the party accused, if living, shall be 
 brought in person before the party accused, and avow and maintain 
 what they have to say against the party, to prove him guilty of the 
 treasons contained in the bill of indictment; unless the party ar- 
 raigned shall willingly, without violence, confess the same." (2) 
 
 Thus it appears that two witnesses would at that time have 
 been necessary, not only in trials for high treason, petit treason, 
 and misprision of treason, but also in treasons relating to the 
 Relating to coin of the kingdom. But an alteration in this respect was 
 *=°'°' made by the stat. I, 2 Ph. & Mary, c. 10, st. 12, and 1, 2 Ph. 
 
 & Mary, c. 11, s. 3, which provided, that "in all cases of high 
 treason concerning the current coin, or for counterfeiting the 
 
 (1) Foster C. L- 233. Sir E. Coke (2) See 3 Inst. 25. Fost. Cr. L. 
 was of opinion, that one witness was 234, 237. 
 not sufficiaat to convict of treason by 
 the ancient comnr-on law. See 3 Inst, 
 t 25. 
 
 (l) See Note 289, p. 283. (m) See Note 290, p. 284.
 
 Sect. 1.] Of the Number of Witnesses. 153 
 
 king's signet, privy seal, and great seal, or sign manual, and on 
 trials for bringing counterfeit coin into the realm, or for any offence 
 concerning the impairing, counterfeiting, or forgicg the current 
 coin, the prisoners should be tried by the same evidence, as they 
 were before the reign of Edward the Sixth." (1) In these cases, 
 therefore, a single witness will now be sufficient; and it has been 
 agreed by all the Judges, that these statutes extend to all offences, 
 touching the impairing of the coin, which should afterwards be 
 made treason. (2) 
 
 The Stat. 7,6 W. 3, c. 3, which relates only to such treasons 7, 8 W. 3, 
 as induce corruption of blood, enacts in the second section, that 
 " no person shall be indicted, tried, or attainted of that species of 
 high treason, or of misprision of such treason, but by the oaths and Rule as to two 
 
 VVltnGSSGS. 
 
 testimony of two lawful witnesses, either both of them to the 
 same overt act, or one of them to one, and the other of them to 
 another overt act of the same treason; unless the party indicted 
 and tried shall vviHing;ly, without violence, in open court, confess 
 the same, or shall stand mute, or refuse to plead, or in cases of 
 high treason shall peremptorily challenge above the number of 
 thirty-five of the jury." And by the 4th section it is enacted, 
 " If two or more distinct treasons of divers heads or kinds are s. 4. 
 alleged in one indictment, one witness produced to prove one of 
 the said treasons, and another witness to prove another of the said 
 treasons, shall not be deemed to be two witnesses to the same trea- 
 son within the meaning of this act." (w) 
 
 Long before this act of the 7ih and 8th of William, it had 
 been resolved, at a conference among the Judges, |)reparatory to 
 the trial of the Regicides, (3) that one witness to prove one act 
 tending to the compassing of the king's death, and another wit- 
 ness to prove another act tending to the same end, were suffi- 
 cient, and that there need not be two witnesses to prove every 
 overt act tending to the compassing of the king's death. And 
 at the trial of Lord Stafford; (4) all the Judges present delivered 
 their opinions u^n the same point, and declared that one wit- 
 
 (1) The like provision in statutes, (3) Kelyng, 9- 
 
 9W. 3, c. 26, s. 7, and stat. 6 G. 3, (4) SirT. Raym. 407. 7 Howell's 
 c. 53, s. 3. St. Tr. 1527. 
 
 (2) Gahagan's case, 1 Leach, Cr. 
 C. 50. 1 East, P. C. 129, S. C. 
 
 (n) See Note 291, p. 284. 
 
 Vol. I. 20
 
 154 Of the Number of Witnesses. [Ch. 7. 
 
 ness to one overt act, and another to another overt act of the 
 same species of treason, were two sufficient witnesses within the 
 statute. From that time tlie rule has been considered as com- 
 pletely settled ; and on many occasions, which occurred before 
 the act of the 7th of WiUiam, it was strictly followed. (1) 
 
 Some alteration has been since made in tlje worst species of 
 high treason, where an attempt is made on the king's person ; 
 and in that case the principle and mode of proceeding at common 
 39 40 G. 3, '^^^ ^''^ restored. The stat. 39, 40 G. 3, c. 93, enacts, that 
 c- 93. " in all cases of high treason, when the overt act alleged in the 
 
 indictment is the assassination of the king, or any direct attempt 
 against his life, or against his person, the prisoner shall be tried 
 according to the same order of trial, and upon the like evi- 
 dence, as if he stood charged with murder." A conviction, 
 therefore, in such a case, may proceed on the testiinony of a sin- 
 gle witness. 
 
 The language of the statutes of Edward G, is, that " the offen- 
 ders are to be accused by two witnesses," that is, two witness- 
 es are required to prove the offence or overt act of treason ; and 
 the Stat, of W. 3, expressly confines itself to the proof of the 
 Collateral overt acts. With respect to all other acts, therefore, which are 
 fdcts. merely collateral and not conducive to the proof of the overt acts, 
 
 the rule of the common law is not altered, and one witness is still 
 sufficient. (2) 
 
 Rule in courts Jt jg rm establisi)ed principle in courts of equity, that on a bill 
 praying relief, when the facts charged by tlie plaintiff, as the 
 ground for obtaining a decree, are proved only by a single wit- 
 ness, and are clearly and posilivehj denied by the answer of the 
 defendant, the Court will not grant a decree against the defend- 
 ant. (3) (o) But where the evidence produced by the plaintiff is so 
 far supported and corroborated by proof of concurring circum- 
 stances, as to outweigh the ilenial in the defendant's answer, (4) 
 
 (1) Fee Fost. Cr. L. 286, and Sir (4) Wallon v. HtTubbs, 2 At?<. 19. 
 W. Parkvns' case, 4 St. Tr. 650, 651, Janson v. liany, ib. 140. Pember v. 
 fol. ed. S". C. 13 HovveU's St. Tr. 114. Mathers, 1 liro. Ch. (a. 52. Toole 
 
 (2) Smith's ca.se, Fost. 242. v. Mcriiicott, 1 Ball & Beatiie, 403. 
 
 (3) L'Neve v. L'Neve, 1 Vcs. 64, Bitldulpli v. St. John, 2 Scho. &, Lef. 
 66. 3 Atk. 646, S. C. 1 Ves. 97, 521. 
 
 125. 2 Ve.?. jun. 243. East India 
 Comp. V. Donald, 9 Ves. 2S2, 283. 
 
 (o) See Note 292, p. 284.
 
 oect. 2.] Of Presumptive Evidence. 155 
 
 (abstracting from tlie n>incl, that the evidence on the part of the 
 plaintiff comes from a disinterested witness,) (1) the former rulo 
 will not apply; and the evidence of a single witness, so strength- 
 ened and confirmed, will enable the court to decree against the 
 answer, (p) And there are many cases in which the court has 
 granted a decree against the def ndant on the testimony of a sin- 
 gle witness, when his testimony has not been clearly and positively 
 contradicted by the answer. (2) (q) 
 
 By the civil law, as was before observed, two witnesses are re- Rule in eccle- 
 quired for the proof of a fact; and such is the rule in ecclesias- 
 tical courts, whose practice is founded upon that law. But even 
 in those coiu'ts, if a matter cognizable at common law arises in- 
 cidentally in an ecclesiastical suit, (us, where a revocation of a will 
 is pleaded, or payment of a legacy, or plene administravit, and the 
 like,) the proof ought to be according to the principles and course 
 of the common law; and if they disallow the plea, because it is 
 proved only by a sing'e witness, they may be controlled by a pro- 
 hibition. (3) 
 
 Sect. II. 
 
 Of the JSTature of Presumptive Evidence. 
 
 Evidence consits either of positive or of presumptive proof, (r) Presumptire 
 The proof is positive, when a witness speaks directly to a fact from ^ ' 
 his own immediate knowledge; and presumptive, when the fact 
 itself is not proved by direct testimony, but is to be inferred from 
 circumstances, which either necessarily or usually attend such 
 facts. (4) This latter is also called circumstantial evidence. It is 
 obvious, that a presumption is more or less likely to be true, ac- 
 cording as it is more or less probable, that the circumstances would 
 not have existed, unless the fact, which is inferred from them, had 
 also existed: and that a presumption can only be relied on, until 
 the contrary iT actually proved, (s) 
 
 In order to raise a presumption, it cannot be necessary to con- 
 
 (l)9Ves. 283. I Veiilr. 291. Sholter v. rriend. 
 
 (2) 3 Atk. 650. 1 Ves. 66,97. 12 Carth. 142. 1 Ld. Ray. 221. Cowp. 
 Ves. 80. 3 Ves. & Beam. 59. 424. Comyn's Dig. tit. Prohibition, (F. 
 
 (3) Sir W. Juxon v. Lord Byron, 2 13,) and (G. 23.) 
 Lev. 64. Richardson v. Disborow, (4) Gilb. Ev. 142. 
 
 (p) See Note 293, p. 287. {q) See Note 294, p. 287. (r) See Nolo 295, p. 288. 
 (•) See Note 2S6, p. 288.
 
 156 Of Presumptive Evidence. [Ch. 7. 
 
 fine the evidence to such circumstances alone, as could not have 
 happened, unless they had been also attended by the alleged fact — 
 for that in efiect would be to require in all cases evidence amount- 
 ing to positive proof ;^but it will be sufficient to prove those cir- 
 cumstances, which usually attend the fact. (0 The definition of 
 the civilians is most correct, " presumptio nihil aliud est, quam ar- 
 {^umentnm verisiniile, communi sensu perceptum, ex eo quod ple- 
 rumque fit aut fieri intelligitur." A presumption is a probable in- 
 ference, which our common sense draws from circumstances usu- 
 ally occurring in such cases, {u) The slightest presumption is of 
 the nature of probability; and there are almost infinite shades from 
 the lightest probability to the highest moral certainty, {y) If the 
 circumstantial evidence be such as may afford a fair and reasona- 
 ble presun)ption of the facts to be tried, it is to be received and left 
 lo the consideration of the jury, to whom alone it belongs to deter- 
 mine upon the precise force and effect of the circumstances proved, 
 and whether they are sufficiently satisfactory and convincing to 
 warrant them in finding the fact in issue. (1) (to) However, for the 
 purpose of trying the weight and effect of such presumptive proofs, 
 it will often be of the utmost consequence to consider, whether any 
 other fact happened, which might have been attended by the same 
 circumstances, and with which of the facts they are most consis- 
 tent, {x) 
 
 " A presumption of any fact is, properly, an infening of that 
 fact from otiier facts that are known; it is an act of reasoning ; 
 and much of human knowledge on all subjects 'is derived from 
 this source. A fact must not be inferred without premises that 
 will warrant the inference; but if no fact could thus be ascertain- 
 ed by inference in a court of law, very few offenders could be 
 brought to punishment. In a great portion of trials, as they oc- 
 cur in practice, no direct proof, that the party accused actually 
 committed the crime, is or can be given; the man who is charged 
 with theft, is rarely seen to break the house or take the goods ; 
 and in case of murder, it rarely h-.ippens that the eye of any 
 witness sees the fatal blow struck, or the poisonous ingredients 
 poured into the cup. In drawing an iiiference or conclusion 
 
 (1) 2 il. Black. 297. 
 
 (0 See Note 297. p. 2S9. (m) See Note 298, p. 289. (r) See Note 299, p. 307. 
 (w) Sen Note .800, p. SOS. (x) See Note 301, p. 309.
 
 Sect. 2.] Of Presumptive Evidence. 157 
 
 from facts proved, regard must always be had to the nature of the 
 particular case, and the facility that appears to be afibrded either 
 of explanation or contradiction. No person is to be required to ex- 
 plain or contradict, until enough has been proved to warrant a rea- 
 sonable and just conclusion against him, in the absence of explana- 
 tion or contradiction; but when such proof has been given, and 
 the nature of the case is such as to admit of explanation or contra- 
 diction, if the conclusion to which the proof tends be untrue, and 
 the accused offers no explanation or contradiction, human reason 
 cannot do otherwise than adopt the conclusion to which the proof 
 tends." (1) 
 
 It has been very justly observed, (2) that when the proofs are de- 
 pendent on each other, or when all the proofs are dependent upon 
 one, the number of proofs neither increase nor diminish the proba- 
 bility of the fact: for the force of the whole is not greater than the 
 force of that on which they depend; and if this fails, they all fall 
 to the ground, [y) But when the proofs are distinct and indepen- 
 dent of each other, the probability of the fact increases in propor- 
 tion to the number of the proofs: for the fa'seiiood of one does not 
 diminish the veracity of another, (z) 
 
 There are presumptions of law, as well as presumptions of fact. Presumption 
 Some presumptions of law are considered sostrongand conclusive, 
 as not to admit of contrary proof; but there are few instances of 
 this, and much fewer in the present day than formerly, the doc- 
 trine of conclusive presumptions applying principally, if not exclu- 
 sively, to estoppels. That innocence is to be presumed, till the 
 contrary is proved, may be called a presumption of law, founded on 
 the universal principles of justice. That a child born during mar- 
 riage shall be presumed to be legitimate, is another presumption of 
 the same description. The grants and deeds are to be presumed 
 in support of long undisturbed possession, is also a presumption of 
 
 (1) By Lord Tenterdcn, in R. v. edition of Pothier on Contracts, Numb. 
 Sir F. Buidett, 4 Barn. & Aid. 161. 16, sect. 14; and in a chapter in Burnett's 
 
 (2) Beccaria ch. xiv. The reader Treatise on the Criminal Law of Scot- 
 will find many sensible observations, on land. There are also some sensible re- 
 the subject of Presumption and Presump- marks in a small tract, entitled " The 
 tive evidence, in Evans' Appendix to his Theory of Presumptive Proof" 
 
 (y> Seo Note 802, p. 313. {z) See Note 303, p. 313.
 
 ^^S Of Presumptive Evidence. [Ch. 7. 
 
 law, founded on principles of public policy and convenience. Some- 
 thing will be said, in llie coin-se of this section, on each of these 
 presumptions. 
 
 oHegZiul'cT. Children, born during a lawful marriage, are presumed to be le- 
 giiimaie; but this presumption may be removed by competent 
 proof of their illegitimacy. Formeily the rule was so strict in fa- 
 vor of legitimacy, that any proof of the contrary would not be ad- 
 mitted, unless the husband had been out of tlie kingdom during 
 the whole time of gestation; (rt) but this doctrine has been long 
 exploded. The general principle, to be deduced from the autbor- 
 
 Rebuued by 'ties on this subject, as it was laid down and confirmed by the case 
 
 proof of non- pf 'p|,e ]^j,-,o- v. Lufte, (1) appears lo be this — that where there are 
 access. . ° . ' \ / i i 
 
 circumstance, which sliow an impossibility that the husband could 
 
 be the father, whether arising from his being under the age of pu- 
 berty, or from his laboring under disability occasioned by natural 
 infirmity, or from the length of time elapsed since his death, or 
 from his continued absence, the presumption is at an end, and the 
 child will be deemed illegitimate. 
 
 Proof of non- J^ an earlier case, (2) the court of king's bench hc-ld, that there 
 access. . .... ." .„ , 
 
 was no necessity to prove the impossibiliiy, il the other cu'cum- 
 
 stances of the case tended strongly to repel the presumption of ac- 
 cess. And this point has been since established by tiie opinion of 
 the judges in the case of the Banbury claim of peerage, (3) in which 
 it was held, that where the husband and wife are not proved to be 
 iuipotent, and haveliad opportunity of access to each other dming 
 the period, in which a child could be beg-iiten and born in the 
 course of nature, the presumption of legitimacy, arising from the 
 birth of the child during wedlock, may be rebutted by circiniistan- 
 ces inducing a contrary presumption: and the fact of non-access 
 (that is, the non-existence of sexual intercourse,) as well as the 
 fact of impotency, may always be lawfully proved by means of 
 such legal evidence, as is strictly admissible in every other case, 
 where a physical fact is lo be proved. 
 
 (1) 1 East, 193, 206. ed iu Simon's & Stuart's Rep. vol. i. 
 
 (2) Goodrigtil, dem. Thomson, v. 153. And see Head v. Head, 1 Tur- 
 Saul, 4 T. li. 306 ner's Ch. R. 140. 1 Sim. & Stuart's 
 
 (3) 2 Selw. N. P. 731, S. P. report- Rep. 150, S. C 
 
 (a) See Note 304, p. 314.
 
 Sect. 2.] Of Presumptive Evidence. ^59 
 
 This caso of tlie Binbury peerage was much cited in the Court 
 of Chancery, in the case of Head v. Head.(l) The Lord Chan- 
 cellor is there reported to have said, that, <' according to his re- 
 collection of that case, it was the opinion of the judges, that where 
 personal access is established, sexual intercourse is to be presumed, 
 and that that presumption must stand, until removed by clear and 
 satisfactory evidence; — whether that evidence apjily directly to 
 the period, at which personal access has been proved, or whether 
 it may be called satisfactory, if it apply not to that period, but to 
 antecedent and subsequent periods." (2) (6) 
 
 It has been held, that, in case of a divorce a mensa el thoro. a Birth during 
 child born after such a separation is presiniied to be illegiiimate:(3) 
 in this case, therefore, the parly, who asserts the child's legitimacy, 
 will have to prove access. 
 
 A receipt for rent due on a certain day is strong presumptive Pr. ev. of pay- 
 evidence, that the former rents have been regularly paid down to "' " ' 
 llmt time, (c) But it is only presumptive evidence; and the other 
 parly will be allowed to prove the contrary. (4) " If a man give a 
 receipt for the last rent," says Ch. B. Gilbert, (5) " the former is ^^^.^ 
 presumed to be jjaid, because he is su|)posed first to receive and 
 take in the debts of the longest standing; especially, if the receij)! 
 be in full of all demands, then it is plain there were no debts stand- 
 ing out; and if this be under hand and seal, the presumption is so 
 strong, that the law admits of no proof to the contrary.'' In an action 
 for work and labor done for the defendant, proof that the plaintiff 
 and other workmen, who were employed by the defendant, came 
 regularly to receive their wages fioni the defendant, whose practice 
 was to pay every week, and that the plaintiff' had not been heard 
 to complain of non-payment, would be presumptive evidence of 
 payment, to meet a stale deuiand. (6) 
 
 (1) 1 Turner, Ch. R. 141. last c.Tses show, timt an admission of 
 
 (2) See mIso Selvv. N. P. 731, 732. llie receipt of the preiniuin, in a poli- 
 (S) Parish of St. George v. St. Mar- cy of insiitanoe, is conclusive evidence 
 
 garet, 1 Salk. 123. of the payment, as heiween tlie as- 
 
 (4) Vide supra, p. 108. sured and the underwriter. See also 
 
 (5) Giib. Ev. 142. In Ahiier v. Bal;er v. Dewey, I Barn. &. Cress. 
 George, 1 Camp. 392, ilie [ilainiiff's 704. 
 
 receipt, " in full of all demands," was (6) Lucas v. Novosilienski, 1 Esp. 
 
 held to be a l>:ir to his action of as- N. P. C 296. See vol. ii- plea of socit 
 
 feumpsit for goods sold. Sen Dalzeli ad diem, in action of debt, p. 171, et 
 
 V. Mair, 1 Cuiiipl). 532; De Gamiude seq. 
 V. Pigou, 4 Taunt. 246, wiiich iwo 
 
 {b) See Note 304, p. 314. (c) See Note 308, p. 314.
 
 IGO 
 
 Of Presumptive Evidence. 
 
 [Ch. 7. 
 
 Pr. ev. ofre- Ii may be presumed that a bond has been satisfied after a for- 
 [enu ^^ *^""' bearance for 20 years, unexplained on the part of the obhgee.(l ) [d) 
 But it has been held, in the case of a quit-rent claimed by the lord 
 of a manor, that proof by the tenant, that no demand had been 
 made upon him for near 40 years, was not a sufficient ground for 
 presuming a release or extinguishment; and that no such pre- 
 sumption could be raised within less than 50 years, which is the 
 liond. period fixed by the statute of limitations. (2) A bond maybe dis- 
 
 charged by payment, and, on account of the difficulty of proving 
 this fact after a length of time, it is reasonable to presume it with- 
 out positive proof: but for the extinguishment of a quit-rent a deed 
 is necessary, and it would be too much to presume, ihat the lord of 
 a manor has executed such a deed, from the mere fact of his not 
 having demanded payment of the quit-rent. " A presumption," 
 said Mr. Justice Aston, " from mere length of time, which is to 
 support a right, is very different from a presumption to defeat a 
 right; here the presumption is to defeat the right of the lord to a 
 small payment within the 50 years limited by the statute; and, 
 therefore, upon mere length of time, unaccompanied by other cir- 
 cumstances, such a limitation ought not to be altered, and^another 
 set up. "(e) 
 
 Pr. ev. of. 
 property. 
 
 Possession. 
 
 Possession is prima facie evidence of property. Possession 
 with an assertion of property, or even possession alone, gives 
 the possessor such a pro[)erty as will enable him to maintain 
 an action of trover or trespass against a wrong-doer. (3) (/) Thus 
 it has been held, that an agister of cattle may maintain trespass 
 against a person for wrongfully taking them away. (4) And this 
 principle applies to criminal as well as civil cases. On a pros- 
 ecution for larceny, therefore, the property of the goods may be 
 laid in the person who had possession at the time; and proof of 
 the n)ere possession will support the indictment. This has been 
 determined in the case of an agister of cattle, (5) and in the case 
 of a coachman who drove a stage-coach by which the goods 
 
 (1) See vol. 2. c. 7, on action of Graham v. Peate, 1 East, 244. Sutton 
 debt, and plea of noH est factum. v. Buck, 2 Taunt. 302. 
 
 (2) St 32 II. 8, c. 2, s 4. Eldridge (4) 2 Roll. Abr. tit. Trespass, (M.) 
 V. Knott, Cowp. 214. (5) Woodward's case, 2 East, P. C. 
 
 (3) Armorie v. Delamirie, 1 Str. 503. 653. 
 
 (d) See Note 307, p. 316. («) See Note 303, p. 352. (/) See Note 309, p. 353.
 
 Sect. 2.] Of Presumptke Evidence. 161 
 
 were sent, fl) So (to give another example in a civil case,) in Piesnmption 
 
 \ / \ ^ ... of grant. 
 
 an action on a policy of insurance, (2) the mere lact ol possession 
 
 of a ship by the plaintiff, as owner, is suflicient prima facie evidence 
 
 of ownership; and thoush it should appear on the cross-examina- P'>ssesiion of 
 
 .... ship. 
 
 lion of one of the witnesses of the plaintiff, that the plaintiff derived 
 his ownership under a bill of sale executed by the witness himself, 
 it would not on that account become necessary for the plaintiff to 
 produce that bill of sale. The proof of possession will be sufficient 
 without the aid of any documentary proof, unless such ulterior ev- 
 idence should be rendered necessary in consequence of some con- 
 trary proof on the other side. 
 
 There are many cases, not within the statute of limitations, in Pr. ev. of 
 which courts of justice have held, that juries ought to presume the S""*^" ^' 
 most solemn instruments to support a long uninterrupted posses- 
 sion. All shall be presumed to have been solemnly done, rather 
 than ancient grants, which were necessary for the perfection of the 
 thing, should be called in question, although the grants cannot 
 now be shown. (3) Ancient possession would injure, instead of 
 strengthening a title, if, after a succession of ages and the decease 
 of parties, objections should prevail, which n)ight have been an- 
 swered in the lifetime of the parties, and which, if well founded, 
 would most probably have been sooner made. (4) Charters and Charters, 
 grants from the crown may be presumed from great length of pos- 
 session, not only in suits between private parties, but in some cases 
 against the crown itself, if the crown were capable of making the 
 grant. Thus, before the si. 9 G. 3, c. 16, Lord Mansfield, C. J., 
 held that a possession and enjoyment for a hundred years were ev- 
 idence in support of a title against the crown ; for though such 
 possession could not conclude as a positive bar, because there was 
 no statute of limitation against the crown, yet it might operate 
 against the crown as evidence of right in the defendant, if the claim 
 could have a legal commencement. (5) (g) 
 
 (1) Deakin's case, 2 East, P. C. R. 492. Goodiitle deai. Parker v. Bald- 
 653. win, II East, 488. 
 
 (2) Robertson v. French, 4 East, (4) Ibid. 
 
 130. (5) Case of the King against Brown, 
 
 (3) 8 East, 263. Bedle v. Beard, cited by Lord Mansfield, Coup. 110. 
 12 Rep. 5. Mayor of Kingston v. Hor- And see cases in note (3), supra. 
 
 ner, Cowp. 102- 3 T. R. 151, 158. 7 T. 
 
 {g) See Note 310, p. 354. 
 
 Vol. I. 21
 
 162 
 
 Of Presumptive Evidence. 
 
 [Ch. 7. 
 
 Presumption 
 of grant. 
 
 Presumption 
 when neces- 
 sary. 
 
 Grants are presumed, where the original possession or enjoy- 
 ment cannot otherwise be legally accounted for, or saiisfaclorily 
 explained. (1) " It is in respect of the ancient continual possession, 
 (says Sir Edward Coke, (2) in the case hefore referred to,) that a 
 lawful grant shall be intended." Again, he snys, " all shall be 
 presumed to bo done, ivhich shall make the ancient appropriation 
 good.'''' He adds, "ancient grants and nets are not to be drawn 
 in question, alihough they cannot be siiown, which at first were 
 necessary to the perfection of the thing.''^ But where the original 
 possession is satisfactorily accounted for and explained without ihe 
 aid of a grant or conveyance, and is consistent with the fact of 
 there having been no conveyance, it is then a question, to be de- 
 termined by the jtn-y, whether in fact, any grant or conveyance 
 was ever made. The case of Doe, on the demise of Fenwick v. 
 Reed, (3) lately decided, affords an example. The defendants, in 
 that case, claimed under a person, who was put into the posses- 
 sion of the estates in 1752, in satisfaction of a debt owing to him 
 from E. C, the owner of the property, under whom the lessor of 
 the plaintiff claimed; and that person's family had retained pos- 
 session from that time. It was proved, also, that the title deeds, 
 relating to the estates, still continued in E. C.'s family, and that 
 moduses had been paid in 1779 for several estates, including the 
 estate in question. The Court of King's Bench determined, that 
 the question had been properly left to the jury, to consider, wheth- 
 er they believed, that, in fact, any conveyance of the property had 
 ever been made to the person under whom the defendants claimed. 
 The verdict was for the lessor of the plaintiff; and the court refus- 
 ed to grant a new trial, (h) 
 
 Endowment. 
 
 Modas. 
 
 An endowment of a vicarage may be presumed from the long 
 and continued possession of tithes and other profits. (4) (t) So, 
 long and uninterrupted usage will support a mudus decimandi. 
 Such usage is evidence from which the jury may presume 
 an agreement beyond lime of memory, between the land-owners 
 and all the parties, whose consent was necessary to give it effect. 
 But usage will not of itself be sufficient to support a modus de 
 
 (1) 5 Barn. & Aid 236, 237. 
 
 (2) 12 Rep. 5, b. 
 
 (3) 5 Barn. & Aid. 282- 
 
 (4) Crimes v. Smyth, 12 Rep. 4. 2 
 Gwili. 514, 716, 782. 
 
 (*) 8«e Note 811, p. S5S. (.%) Seo Note 312, p. 371.
 
 sect. 2.] Of Presumptive Evidence. 163 
 
 non decimandoy claimed by .1 lay person against a spiritual rector; Presumption 
 
 although it is certainly strong evidence of the right, when a legal ° ' 
 
 foundaiion for such an exemption has been established. And 
 though constant usage is evidence of a modus decimandi, and is a 
 ground for presuming grants even against the crown ; yet in the 
 particular instance of a composition real in lieu of tithes, it is set- Composition 
 tied, that where the deed cannot bs ])roduced, some evidence must '^^^'' 
 be given referring to the deed, or showing that it did exist, inde- 
 pendent of mere usage. (1) (j) And the reason, why this has been 
 so held, is stated to be, that, if it were otherwise, the church would 
 be defrauded, and every bad modus turned into a good composition. 
 *' The presumption of a deed from long usage is for ^ihe furlher- 
 ance of justice and for the sake of peace, when there has been a 
 long exercise of an adverse right. For instance, it cannot be sup- Lights, 
 posed, that any man would suffer his neighbor to obstruct the light 
 of bis windows {k) and render his house uncomfortable, or to use 
 a way with carts and carriages over iiis meadow for 20 years suc- 
 cessively, unless some agreement had been made between the par- Way. 
 ties to that effect, of which the usage is evidence. But with re- 
 spect to a composition for tithes, the same reason does not obtain, 
 because temporary agreements are made and continued for the 
 convenience of parties during a succession of incumbents : and 
 there is no exercise of any adverse right, which is generally deem- 
 ed necessary to raise the presumption." (2) (m) 
 
 Upon the same principle, uninterrupted enjoyment of an ease- Easement, 
 ment (n) for twenty years or ui)wards is strong evidence of a right 
 of enjoyment, fron) which jniies are directed by the court to jn'e- 
 sunie a conveyance or agreement ; as, in an action on the case 
 for obstructing the plaintift^'s lights (3) or in the case of a market 
 regularly kept above twenty years. (4) (0) A faculty from the 01- Faculty, 
 dinary may be presumed from the long uninterrupted uj?e of a pew 
 
 (1) Knight V. lialsey, in error, 2 Scrjt. "Viniliams' ed. of Saund. 2 vol, 
 Eos. & Pull. 206. Dennot v. Nc.-iie. 175, «; Dongal v. Wilson, ib. Mo, b ; 
 1 Wiglilw. 324. Clnitfield v. Fryer, Darwin v. I'pton, ib. 3 T. R. 159. 
 1 Price, 253. Ward v. Shepiierd, Cross v. I-cvvis, 2 Barn. & Cres. 686. 
 3 Price, 60S. Bennett v. SI<elIiiigto!i, Moore v. Rawson, 3 Barn. &, Cres. 
 1 Daniel's Rep 10. And see 1 Eden's 332. 
 
 Rep. 296. (4) Ilolcroft v. Ileei, I Bos. & Pul. 
 
 (2) 2 Bos. &. Pull. 206. 401. 
 
 (3) Lewis V. Piice, reported in Mr. 
 
 (;■) See Note 313, p. o7i. (A:^ i'-ce No'e 314, p. 371. (/) See Note 315, p. 373. 
 (m) See Note 316, p. 375. (n) See Note 317, p. 375- (o) See Note 318, p. 385.
 
 I(j4 Of Presumptive Evidence. [Ch. 7. 
 
 PrcBumpiioii jn a cluiicli, ckiined as appurtenant to a messuage. (I) (p) An 
 
 °^°'"'^"^' adverse enjoyment of a way over another person's land for above 
 
 Way. 20 years has been considered a strong ground for the jury to pre- 
 
 sume a grant, alihough, about 26 years before, the way had been 
 extinguished by an award under an inclosure act. (2) If, indeed, 
 the party had asserted his right to be grounded 'on the award, this 
 would show that the way was used by mistake ; but unless it could 
 be clearly referred to something else besides adverse possession, 
 the jury would probably be directed not to consider small circum- 
 stances as raising a presumption, that the possession arose other- 
 wise than by grant. 
 
 Adverse possession for a shorter period than 20 years will not 
 of itself afibrd a ground for such a presumption ; and there ought 
 Licence- ^^ j^^^ ^^^^^^ ^^l^^j. evidence in support of the right. (3) However, 
 
 a licence may be presumed within that time, though in general a 
 grant cannot ; as, in an action of ejectment to recover part of a 
 waste enclosed by the defendant, where it was proved that the 
 steward of the lord of the manor had from time to time seen the 
 inclosure, which had been nearly thirteen years, without making 
 any objection, this was held to be evidence from which the jury 
 might presume a licence from the lord. ( 1) 
 
 Usage j^-, ^}je cases which have been mentioned, the usage for twen- 
 
 ty years was considered to be strong presumptive evidence of a 
 grant or agreement. The original enjoyment cannot be legal- 
 ly explained or accounted for, unless a grant has been made ; 
 and on this ground it is, that such grants are presumed. (5) 
 
 explained. But usage is only presumptive proof; and, therefore, evidence is 
 admissible to repel such a presumption ; as, by showing that 
 the usage was limited, or modified, or bad in its commencement, 
 or that it clearly originated in a mistake. (6) In the case of 
 
 (1) Rogers V- Brooks, 1 T. R. 431, 4 Campb. 16. Woodyer v. Haddon, 
 (a.) Griffith v. JMatli)ews, 5 T. R. 5 Taunt. 125. Harper v. Charles- 
 296, 298. worth, 4 Barn. & Cres. 574. 
 
 (2) Campbell v. Wilson, 3 East, (3) 6 East, 215. 4 Burr. 1963. 
 294, 302. Keymer v. Summers, Bull. Colterel v. Griffiths, 4 Esp. N. V. 
 N. P. 74. Carr v. Heaton, 3 Gwill. C. 69. 
 
 1262. As to a public right of way, (4) Doe, dem. Foley, v. Wilson, U 
 
 by a presumed dereliction on the part East, 56. 
 
 of the owner of the soil, see the case (5) 5 Barn. & Aid. 237. 
 
 of the Trustees of the Rugby Charity (6) 3 East, 300, 302. Dawson v. D. 
 
 V. ^lerrj'weather, 11 East, 375. n. R. cf Norfolk, 1 Price, 246. 
 
 V. Llo)d, 1 Campb. 260. R. v. Barr, 
 
 (/>) See Note 319, p. 385.
 
 Sect. 2.] r Of Presumptive Evidence. 165 
 
 Darwin v. Upton, (1) which has been cited, where die effect of Pfesumption 
 
 this kind of evidence was much considered, Lord Mansfield said, 
 
 " The enjoyment of hghts with the defendant's acquiescence for 
 twenty years is such decisive presumption of a right by grant or 
 otherwise, that, unless contradicted or explained, the jury ought to 
 believe it. But it is impossible that length of time can be said to J?!g^ P'^f"'"' 
 be an absolute bar, like a statute of limitation; it is certainly a pre- 
 sumptive bar, which ought to go to the jury." The other judges 
 also were strongly of the same opinion. 
 
 The usage which is supposed to be founded on a grant or agree- Limited right, 
 ment determines also the extent of the supposed grant. (2) The 
 right granted is considered to be commensurate with tlie right 
 enjoyed. A person who has enjoyed a limited right cannot law- 
 fully enlarge it to the detriment of others; and in case of such 
 enlargement, those who are prejudiced may lawfully obstruct the 
 use in the newly acquired part; but still he will be entitled to the 
 enjoyment of his former right, not only to the same extent, but in 
 the same specific manner. (3) So, if a person has a way for car- Way. 
 riages from D. to B. over another man's close, and purchases land 
 adjoining to B., he cannot use the way with carriages to the ad- 
 joining land, though become first to B., and so to the adjoining 
 land ; for this way may be prejudicial to the other person's close. (4) 
 The continued use and enjoyment of a private way for carriages 
 does not necessarily imply a right to use it as a drift-way, though 
 the one has been often understood as including the other. (5) How- 
 ever, it has been held that the use of a carriage-way is evidence of 
 a right of way for all kinds of cattle, more especially, if some spe- 
 cies of cattle have been usually driven along the way; and that it 
 will be a question for llie jury to determine, from the nature and 
 situation of the premises, and from other circumstances, whether 
 it is more probable that the grant included both rights of way, or 
 that one of them was excluded. (6) 
 
 (1) 2Saund. 175, c. See also 6 (4) Roll. Ab. 391, tit. Chimin, art. 
 East, 20S, 214. 3. Laughton v. Ward, 1 Lutw. 111. 
 
 (2) 14 East, 339, 340. (5) 1 Taunt 284, 2S5. 
 
 (3) Chandler v. Thompson, 3 (6) By Mansfield C. J. and Cham- 
 Campb. 80. And see Martin v. Go- bre J. in Pall.ird v. Dyson, 1 Taunt 
 ble, 1 Campb. 320. Beuley v. Shaw, 279. 
 
 6 East, 208.
 
 166 
 
 Presumpl'ion 
 of grant. 
 
 Consent of 
 OM-fler. 
 
 Way. 
 
 Lights. 
 
 Of Prtsumjjiive Evidence. • [Ch. 7. 
 
 The principle above stated must always be understood with this 
 qualification, that the possession, from which the parly would pre- 
 sume a grant of the easement, was with the knowledge of the per- 
 son seised of an estate of inheritance (q) If a tenant for years or 
 for life gives a licence to anoiher to enjoy an easement on his lands 
 for above twenty years without interruption, this will not eflect 
 the person in reversion or remainder; but, on the determination of 
 the particular estate, he may dispute the right to the easement, 
 and the length of possession will not be evidence against him to 
 presume a grant, unless it can be shown that he acquiesced. (1) 
 So, where a person made windows in his house, and had ihem 
 for above twenty years, without any interruption froiri the occupier 
 of the opposite premises, who occupied them under a lease, the 
 Court of King's Bench held, that the possession of such an ease- 
 ment would not affect the landlord on the determination of the 
 lease, and that he would not be liable to an action for raising the 
 height of his own premises, and thereby obstructing the light 
 through the new windows. (2) 
 
 Pr. cv. in Presumptive, or circumstantial evidence, must obviously be as 
 
 criminal cases. j^j^^,^j^gj^jg in criminal prosecutions as in civil cases; for whether 
 the proceeding be of a civil or criminal nature, the modes of reason- 
 ing, and of drawing conclusions from facts, nuist necessarily be 
 the same, (r) When direct evidence of facts cannot be supplied, 
 as must continually happen in some of the worst species of crimes, 
 reasonable minds will necessarily form their judgment on circum- 
 stances, and act on the probabilities of a case. The whole system 
 of human action proceeds on probability. And "as mathemat- 
 ical or absolute certainty" (to use the words of Lord i\iansfield in 
 the Douglas cause) (3) " is seldom to be attained in human afiairs, 
 reason and public utility require, that judges, and all mankind, 
 in forming their opinion of the truth of facts, should be regulated 
 by the superior number of the probabilities on the one side or the 
 other, whether the amount of these probabilities be expressed in 
 words and arguments, or by figures and numbers." The prmci- 
 pal difference to be remarked between civil and criminal cases, 
 
 (1) Bradbury v. Grinsel, 2 Saund. (2) Daniel v. North, 11 East, S72. 
 
 175, d. in note. Wood v. Veal, 5 (3J Cited in Andrew Sluurt'a Sd. 
 
 Barn & Aid. 454. Harper v. Charles- letter to Lord Mansfield, vide supra, p. 
 
 worth, 4 Barn & Cress. 574. 157. 
 
 (q) See Note 320, p. 385. (r) See Note 321, p. 385.
 
 Sect. 2.] Of Prtsumptive Evidence. 167 
 
 wiih reference to the modes of proof by direct or circiimslantial 
 evidence, is, that in the former, where civil rights are ascertained, 
 a less degree of probabihiy may be safel)- adojited as a ground of 
 judgment, than in ihe latter case, which affects life and liberty. 
 In criminal prosecutions, it has been observed, (I) the circumstan- 
 tial evidence should be such, as to produce nearly the same degree 
 of certainty as that which arises from direct testimony, and to 
 exclude a rational probability of innocence. Doubtless, the cir- 
 cumstances ought to be of such a nature as not to be reasonably 
 accounted for on the supposition of the prisoner's innocence, but 
 perfectly reconcilable with the supposition of his guilt. 
 
 Circumstantial evidence has, in some instances, undoubtedly 
 been found to produce a much stronger assurance of the pris- 
 oner's guilt, than could have been produced by the most direct 
 and positive testimony. (2) As a general principle, however, it 
 is certainly true, that positive evidence of a fact from credible 
 eye witnesses is the most satisfactory that can be produced, and 
 the universal feeling of mankind leans to this species of evidence 
 in preference to that which is merely circumstantial. If posi- 
 tive evidence of a fact can be produced, circumstantial evidence 
 ought not to be trusted, (s) Chief Baron Gilbert, therefore, con- 
 siders it a higher species of jjroof. He says, " When the fact 
 itself cannot be proved, that which comes nearest to the proof of 
 the fact is the proof of the circumstances which necessarily or 
 usually attend such facts; and which are called presumptions 
 and not proofs, for they stand instead of the proofs of the fact, till 
 the contrary be proved." (/) 
 
 A difference between witnesses on points cf little importance Difference 
 £,, , , . • rni ... between wit- 
 
 anords no reason to suspect then' veracity. i hese variations m nesses. 
 
 testimony occur every day in the transactions of common life, and 
 
 may be explained on the commonest principles of human nature, 
 
 (1) Burnet's Trenlise on the Crini- (2) A very remarkaljle case of cir- 
 inal Law of Scollaiitl, p. 323. See cumstiintial evidence is stated at length 
 niso the very nitisferly siiiiiniing up in Purnet's Treat, on the Criminal Law 
 of ihe Lord Ch. .lusiico of ilie Court of Scotland, p. 524. 
 of K. B. in Ireliind, on the trial of Gra- 
 liain, Forbes, and others for a conspira- 
 cy. Printed Rep. p. 360. 
 
 («) See Note S22, p. 365. (0 See Note 323, p. 386.
 
 168 Of Presumptive Evidence. [Ch. 7. 
 
 Men relate facts as they observe and remember them; and the 
 powers of attention, observation, and memory, are infinitely di- 
 versified. A difference in the manner of relating unimportant 
 circumstances is perfectly natural, and what might be expected 
 in the ordinary course of things: on the contrary, it is the exact 
 coincidence in minute particulars, that shows contrivance, and 
 excites suspicion. An eminent writer, in adverting to the dif- 
 ferences in the narrative of the sacred writers, has made some 
 very judicious observations on this subject, which are of uni- 
 versal application. (1) " If several independent witnesses of fair 
 character," he says, " should agree in all the parts of a story, 
 (in testifying, for instance, that a murder or a robbery was com- 
 mitted at a particular time in a particular place, and by a certain 
 individual,) every court of justice in the world would admit the 
 fact, notwithstanding the abstract possibility of the whole being 
 false. Again, if several honect men should agree in saying that 
 they saw the King of France beheaded, though they should dis- 
 agree as to the figure of the guillotine, or the size of his execu- 
 tioner, as to the King's hands being bound or loose, as to his 
 being composed or agitated in ascending the scaffold; yet every 
 court of justice in the world would think, that such difference, 
 respecting the circumstances of the fact, did not invalidate the evi- 
 dence respecting the fact itself. It would be impossible to estab- 
 lish the truth of any fact, if a disagreement in the evidence of 
 witnesses, in minute points, should be considered as annihilating 
 the weight of their evidence in points of importance. In a word, 
 the relation of a fact differs essentially from the demonstration of 
 a theorem. If one step is left out, if one link in the chain of ideas 
 constituting a demonstration is omitted, the conclusion will be de- 
 stroyed; but a fact may be established, notwithstanding a disa- 
 greement of the witnesses respecting it in certain trifling particulars 
 of their evidence." (w) 
 
 Goods found Q,-, g^ indictment for larceny, proof that part of the stolen 
 on prisoner. , , , r ^ , c ^ • 
 
 goods have been lound upon the person oi the prisoner, or m 
 
 his house or possession, is presumptive evidence against him of 
 
 his. having stolen them, so as to call upon him for his defence: 
 
 and may be sufficient to warrant a conviction, if no facts appear 
 
 (1) The Bishop of LlandafF's Apology, p. 79. 
 
 (u) See Note 324, p. 395.
 
 Sect. 3.] Evidence confined to Points in Issue. 169 
 
 in evidence to repel that presumption. The goods are sometimes 
 found in the prisoner's house before his apprehension, frequently 
 found afterwards; and there can be no objection to proof of their 
 being found at one time or the other. This kind of evidence is 
 frequently strengthened materially by other circumstances, as by 
 proof, that about the time of the oflence, the prisoner was near the 
 spot from which the goods were taken, or that he gave some false 
 account respecting the goods on being charged with the crime, or 
 endeavored to conceal them, or, perhaps, tried to prevent an in- 
 spection, or by some other proof of suspicious circumstances in his 
 behaviour. On the other hand, the inference, arising from the 
 mere fact of possession, will be much weakened, if any considera- 
 ble time has elapsed between the loss of the propeity and the find- 
 ing of it again, or if the properly was from its nature likely to pass 
 in the interval through many hands; especially, where the prison- 
 er betrayed no appearance of guilt at the time of his apprehen- 
 sion, {t) 
 
 Sect. III. 
 
 Evidence is to be confined to the Points in Issue, (u) 
 
 The sole object and end of evidence is, to ascertain the truth 
 of the several disputed facts or points in issue on the one side or on 
 the other; and no evidence ought to be admitted to any other 
 point. As it is a rule of pleading, that the issue should be on a 
 material point, so it is an essential rule of evidence, that the proof 
 should be material and relevant to the issue, (v) 
 
 Evidence must always be considered with reference to the sub- Relevancy. 
 ject matter, to which it is applied. And it is material, therefore, to 
 consider the view, with which particular evidence is offered, in or- 
 der to determine whether it bears upon the point in issue. Evi- 
 dence may be admissible in one point of view, though not in an- 
 other. («') A question, for instance, which would have been irrel- 
 evant and improper on the examination in chief, may be rendered 
 necessary by the course of a cross-examination. 
 
 In criminal cases, though it is not material, in general, to in- Larceny. 
 quire into any other stealing of goods, besides that specified in 
 
 (0 See Note 325, p. 423. (u) See Nolo 326, p. 428. (f) See Note 327, p. 429. 
 (to) See Note 328, p. 430. 
 
 Vol. I. 22
 
 Arson. 
 
 Public bridge. 
 
 170 Evidence confined to Points in Issue. [Ch. 7. 
 
 the indictment, yet, for the purpose of asccrlainiqg the identify of 
 the person, it may be often iir.portant to show, that other goods, 
 which had been upon an adjoining part of the premises, were stol- 
 en in the same night, and afterwards found in the prisoner's pos- 
 session. This is strong evidence of the prisoner having been near 
 the prosecutor's iiouse on the niglit of the robbery; and in that 
 point of view it is material, (.t) Thus also, on an indictment for 
 the crime of arson, it may be shown, that propeity, which had 
 been taken out of the house at the time of the firing, was afterwards 
 found secreted in the possession of the prisoner. (1) To give one 
 other instance: On an indictment against a county, for not refiair- 
 ing a public bridge, the defendants may show, under the genera) 
 issue, that the bridge had been repaired from time to time by pri- 
 vate individuals; for one question is, whether the bridge is a pub- 
 lic bridge? and upon that question it is material to inquire, by 
 whom and in what manner it had been repaired, with a view of 
 ascertaining, whether those repairs were adapted to the service of 
 the public, or merely to the purposes of ornament or private con- 
 venience. It is one medium of proof, to show that the bridge has 
 been repaired by individuals; though that alone woula be of very 
 little weight. (2) (y) 
 
 Admissions on As the iurv are bound to try onlv the matter in issue between 
 record. . , .''•'.. , , ■ • it 
 
 the parties, no evidence need be given to prove any points winch 
 
 are admitted on the record, and none can be received to dispute 
 
 Trespass. an admission on the record. (.3) Thus in an action for cutting 
 
 down trees, if the plaintiff replies to the defendant's plea of soil 
 
 and freehold, that the trees were his trees and freehold, &:c. he 
 
 thereby admits the plea of the defendant, and cannot dispute 
 
 Case. that he had the freehold of the soil. So, if a tenant justifies for 
 
 common, and the issue on the right of common is found for the 
 
 demandant, the jury cannot find, that the tenant did not put in 
 
 his cattle; for tliat is ad;tiitted. (4) So in an action of debt on 
 
 an award, where the defendant pleads uo such aivard, the jury 
 
 cannot find matters wliich make tiie award void, if they are not 
 
 contained in the award itself. (5) If the defendant, in an action 
 
 (1) Rickmau's case, 2 East, P. C. (3) Pull. N. P. [21)8.] 
 1035. (4) Com. Dig- tit. Pleader, (S. 17.) 
 
 (2) R. V. The Inhabitants of North- (5) 2 Roll. Abr. 692, 1 25. 
 amptODshire, 2 Maule &. Selw. 262. 
 
 Debt. 
 
 (i) See Note 329, p. 432. (y) See Note 830, p 432.
 
 Sect. 5.] Evidence confined to Points in Issue. 171 
 
 of covenant for not keeping premises in repair, plead performance, Covenant, 
 he admits, by refraining from the plea option est factum, so much 
 of the deed as is expanded on llie record ; but he admits no more; 
 and if the plaintiff would avail himself of any other part of tlie 
 deed, he must prove it in the common way by the attesting wit- 
 ness. (1) 
 
 f 
 
 The defendant's plea of plene adminislravit admits that he is ad- ^'*^" ofplene 
 , , r II- ... admin, 
 
 nimistrator, and he cannot alterwards dispute it m the same action. 
 
 The plea of not guilty in an action for an assault upon a person de- 
 scribed as the wife of the plahitiff, admits the marriage. The plea 
 of payment, in an action of debt by the assignees of a bankrupt up- Payment 
 on a bond, admits their title to sue as assignees ; (2) the general 
 principle being, that a party, who puts himself upon one issue, ad- 
 mits all the rest. |If the defendant in an action of trespass justify justification in 
 the removing of the object, with which he is charged, as injurious trespass. 
 to his property, and the plaintiff reply that the defendant removed 
 it with unnecessary force, doing unnecessary damage, &c., this 
 replication admits damage to a certain extent, such as would jus- 
 tify the defendant in removing the object, and, therefore, precludes 
 the plaintiff from showing that no damage had been done. (3) (z) 
 
 Such evidence alone ought to be admitted, as in some manner Proof of other 
 bears upon the question at issue. An inquiry into other trans- ^'■^"^^•^^'°"' 
 actions, besides those immediately contested, may in some cases 
 be entirely irrelevant. The relevancy of evidence must depend 
 upon the nature and circumstances of the particular case; for 
 all evidence is to be considered with reference to tlie subject mat- 
 ter, to which it is applied. For instance, in an action ag=iinst other accep- 
 an acceptor of a bill of exchange, if the defence is that the accept- tanco. 
 ance is forged, it cannot be material lo inquire, whether the 
 person, suspected of the forgery, has forged the defendant's name 
 to another acceptance, [i) Or where the question, between a 
 
 <1) VViliiams V. Sills, 2 Campb. 419. (3) Pickering v. Rudd, I Stark. N. 
 
 For other examples see Hill v. Wright, P. C. 58. 
 
 2 Esp. N. P. C. 669. Watson v. King, (4) Balutti v- Serani, Peake, N. P. 
 
 4 Cariipb. 272. Harrington v. M '.Morris, C 142. Viiiey v. Barrs, 1 Esp. N. P. 
 
 5 Taunt. 228. C. 293. 
 (2) Crosbie v. Oliver, I Stark .N. P. 
 
 C. 76. 
 
 (2) See Note 331, p 444.
 
 172 Evidence confined to Points in Issue. [Ch. 7. 
 
 Other agree- landlord and bis tenant, is, whether rent was payable quarterly 
 or half-yearly ? it must be obviously irrelevant to consider what 
 agreements subsisted between the landlord and other tenants, or 
 at what time their rents would become due. (1) (a) 
 
 On the other hand, it may frequently be very proper, and in 
 some cases absolutely necessary, to look beyond the transaction, 
 which is the immediate subject of inquiry, into previous transac- 
 tions, for ihe purpose of discovering the knowledge of the parties, 
 their motives, or intentions. (2) The case of Hunter v. Gibson 
 and Johnston'(3) affords an instance of this kind. That was an ac- 
 tion by an indorsee against the defendants, as acceptors of an in- 
 strument purporting to be a bill of exchange: a question arose on 
 the third count, which staled the bill to be payable to bearer, under 
 Other transac- the following circumstances: It appeared in evidence, that the 
 
 tions to show name of the person mentioned as payee was merely fictitious, but 
 
 knowledge. ^ , ^ , ■ -rr ^ c \ c 
 
 this fact was not known to the piaintifi; and lor the purpose ol 
 
 showing, that the defendants at the lime of their acceptance knew 
 the name in ihe bill lo be fictitious, or that the defendants had giv- 
 en authority to the drawer to draw the bill in question payable to a 
 fictitious person, the plaintiff proposed to prove, that the defendants 
 had given a general authority to the drawer to draw bills of ex- 
 change upon them, to be made payable to fictitious persons, and 
 evidence to this effect was produced; the counsel for the defend- 
 ants objected to this evidence, on the ground that it had no rela- 
 tion to the particular bill in question, and the facts of any particu- 
 lar transaction could not legally be inferred from circumstances 
 which applied wholly to other transactions. Lord Kenyon, who 
 tried the cause, admitted the evidence; upon which, the counsel 
 for the defendants tendered a bill of exceptions. The Court of 
 King's Bench gave judgment for the defendant in error. A writ 
 of error was then brought in the House of Lords; and the ques- 
 tion on the admissibility of the evidence was referred to the 
 Judges. On this question there was a division among the 
 Judges: but the majority of them being of opinion, that the 
 
 (1) Carter v. Pryke, PeaUe, N. P- (2) See infra, as to the proof of 
 
 C. 94. For other examples, see Hoi- knowledge in issuing counterfeit money, 
 
 combe v. Ilewson, 2 Campb. 39t. (3) 2 II. Bl. 187, 288, 290, 295. 
 Spencely v. De Willot, 7 East, 108. 
 
 (a) See Note 332, p 451.
 
 Sect. 3.] Evidence confined to Points in Jssue. 173 
 
 evidence ought to have been received and left to the jury, the Proof of other 
 
 " 1 /;\ •> " customs. 
 
 judgment below was affirmed. (6) 
 
 When a right is claimed by custom in a i)aiiicular manor or Proof ofcus- 
 
 parish, proof of a similar custom in an adioinin* parish or manor loms m other 
 r ^ r ^ ^ . manors, &c 
 
 is not admissible in evidcnce.(l) In the Duke of Somerset's case, (c) 
 
 Lord Ch. J. Raymond said, he had always looked upon it as a set- 
 tled principle in the law, that the customs of one manor should 
 not be given in evidence to explain the custom of another manor; 
 *' for, if this kind of evidence were to be allowed, tiie consequence 
 seems to be, that it would let in the custom of one manor into an- 
 other, and in time bring the customs of all manors to be the same." 
 And, in addition to this argument of inconvenience, the objection 
 taken to the evidence in that case, namely, that it was inapplica- 
 ble to the point in dispute, appears to be very strong; customs be- 
 ing different in different manors, and in their nature distinct. Un- 
 less, therefore, some connection or relation is proved to have exist- 
 ed between them, as by showing that they were all formerly holden 
 under the same lord, or that the one manor was anciently parcel of 
 the other manor, (2) such evidence is not admissible. 
 
 But several cases appear to have determined this point, that. Rule in qnes- 
 where ail the manors within a certain district are held by the same t'ons of /enure, 
 peculiar tenure, and a question arises in any one of them upon an 
 incident to the tenure, evidence may be given of the usage, which 
 prevails in any of the other manors within the district. The first 
 reported case of this kind is Champian v. Atkinson, (3) where the 
 question was, whether a general fine was due to an infant preced- 
 ing lord during his minority.'' and the defendants were allowed to 
 give in evidence upon the trial of this issue, that other adjoining 
 manors had the same custom, not to pay to the lord before he at- 
 tained his full age; and similar evidence was there said to have 
 been received, on a question of copyhold tenure, between certain 
 manors in Middlesex. 
 
 (1) Dul<e of Somerset v. France, Wood, I}, in Doe dein. Foster v. Sisson. 
 
 1 Str. 661. Rudingv. Newell, 2 Str. 12 E;ist, 63, S. P. ErsUiiie v. Ruffle, 
 
 957. Furneaux v. Hutchins, Cowp. 3 Gwill. 965. 
 
 807. By Buller, J. in Noble v. Ken- (2) Moulin v. Dalison, Cro. Car. 484. 
 noway, 2 Douglas, 512, S P.; by (3) 3 Keb. 90, on Tr. at bar. 
 
 (6) See Note 333, p. 452. (c) See Note 334, p. 455.
 
 174 Evidence confined (o Points in Issue. [Cli. 7. 
 
 Proof of other Qii the authority of this case of Champian v. Atkinson, tlie 
 
 customs. T\ ^ c c< 
 
 Diike of Somerset's case (!)((/) was principally decided. On a 
 
 trial at bar in ihat case, where the issue was, whether a general 
 fine was due from the tenants of certain manors in Cumberland to 
 the Duke as next admitting lord, the court, after much argument, 
 received evidence, that the same fines had been paid in similar 
 cases to the lords of other manors. Lord Ch. J. Raymond and 
 Reynolds, J. laid down the general rule as above stated, and were 
 strongly against admitting the evidence; but afterwards agreed to 
 receive it, on the authority of the precedent in Keble, and of cases 
 said to have been so ruled on the northern circuit. Fortescue, J., 
 the only other judge present, thought the evidence admissible, and 
 made a distinction between the cxislom and the tenure of a manor; 
 - and as the question, there to be tried, merely concerned the tenure 
 of the plaintiff's manors, he was of opinion that it would be proper 
 to inquire, what were the qualities that attended other estates hol- 
 den by the saine tenure. 
 
 Or custom of I" ^^'^ ^^-^ of Furneaux v. Hutchins, on a question relative to 
 the country. i\^q custom of tithing, (2) Lord Mansfield, after laying down the 
 general rule, that " p-.oof of the custom in one parish is not evi- 
 dence to affect another parish," adds this qualification, " unless the 
 custom is laid as a general custom of the country.". Thus, where 
 half of a river belongs, by the constant custom of the country, to 
 the lords of the manors on each side of the water, proof of the cus- 
 tom in one manor is evidence of the same customary right in an- 
 other. (3) It is evidence of a custom pervading one common dis- 
 trict of manors, (c) 
 
 Actsof owner- The case of Sir Thomas Stanley v. White (4) may here be 
 ship in other ,„ . ' ~ r • \ 
 
 portions of mentioned. This was an action of trespass tor cutting down 
 
 property. ^^^^ plaiiitifl^'s trees; the defendant pleaded his soil and freehold 
 
 in the close, tinon which the trees were growing, &c.: the plain- 
 
 (1) Duke of Somerset v. Fiance, (2) Cowp. 803. 
 
 1 Sir. 65S. See also Lowther v. Raw (3) 1 Maule & Selvv. 662. 
 
 and others, Foitesc. 44, 55, S. P., on (4) 14 East, 332. Bryan v Win- 
 appeal to the House of Lords from wood, 1 Taunt. 20S. Tyrwhitt v. 
 the judgment of Lord Talbot. Ch.; Wynne, 2 Barn- & Aid. 554 bee Hoi- 
 Dean and Chapter of Ely v. Warren, lis v. Goldfinch, 1 Barn. & Cress. 218, 
 
 2 Atk. 189, S. P. See also Cowp. 219. 
 807, 808; 5 T. R. 31; and 1 iMaule &, 
 Selw. 662. 
 
 ((f) See Note 335, p 455. (e) See Note 336, p. 455.
 
 Sect. 3.] Evidence confined to Points in Issue. ^^^ 
 
 tifF replied that ihe trees were his trees and freehold. It appeared Proof of othsr 
 
 on the trial, that the trees in question grew in a woody belt, ol 
 
 considerable extent, entire and undivided, which encircled the 
 plaintiff's manor, and lay contiguous to a number of closes belong- 
 ing to several owners, one of which closes was that of the defend- 
 ant. Evidence was a(hnitted of several acts of ownership, in dif- 
 ferent parts of the belt, by those under whom the plaintiff claimed 
 which had been acquiesced in by the owners of the adjoining land. 
 And" the Court of King's Bench afterwards, on a motion for a new 
 trial, adjudged the evidence to have been properly admitted, as evi- 
 dence of the general right thi'ough the whole extent of such en- 
 tire undivided inclosure. which might be presumed to have belong- 
 ed formerly to one owner. This appears to be the true principle, 
 on which the proposed evidence, in that case, was admissible. For, 
 generally speaking, acts of ownership, submitted to by the holder 
 of one portion of land, cannot be proof that the person exercising 
 them has any right to the adjoining land. (1) (/) 
 
 The general rule, then, is, that a custom of tithing, &c. in one 9"^'°'^ °^ 
 . . . . . tithing, 
 
 parish is not evidence of a custom in another. So, in an action by 
 
 a rector for tithes, where the point in issue is, whether there exists 
 a modus of a certain sum of mori'ey for a particular farm in a town- 
 ship within the parish, the defendant will not, in general, be allow- 
 ed to inquire, whether other farms in the same township are not 
 subject to the same payment. Such an inquiry, however, n)ay be 
 very proper on the other side, in cross-examination, for the purpose 
 of showing that such payments cannot be a modus, consistently 
 with the evidence which has been previously adduced. This was 
 lately adjudged to be admissible in the case of Blundell v. How- 
 ard. (2) The question there was not put by the defendant with a 
 view of supporting the modus set up by him, but was put by the 
 plaintiff, in order to show that this and similar payments by the 
 occupiers of different tenements were merely poitions of a sum in 
 gross paid thrnughout the township by way of composition, and 
 couldjiot be a modus, since the ecclesiastical surveys, which had 
 been produced on the part of the rector, were entirely silent as to 
 any modus co-extensive with the township, (g) 
 
 (1) See 1 Barn. &, Cress. 21S, 222. (2) 1 Maule & Selw. 292. 
 
 (/ ) See note 337, p. 455. (g) See Note 438, p. 456.
 
 1 76 Evidence confined to Points in Issue. [Ch. 7. 
 
 Character of As evidence is 10 be confined to the points in issue, the charac- 
 
 party. r • i i • • i • • . ., • , . 
 
 ter ol eiUier party cannot be niquired into, jn a civil suit, unless it 
 
 is put in issTje by the nature of the proceeding itself. (1) Thus, in 
 an action of ejectment by an heir at law, to set aside a will for 
 fraud and imposition commiited by the defendant, witnesses can- 
 not be examined lo the defendant's good character. (2) So, on the 
 trial of an information against the defendant for keeping false 
 weights, where it was proposed to call witnesses on behalf of his 
 character, Eyre, C. B. ruled, that such evidence was not admi^ible 
 in a civil suit. (3) " The oflence imputed is not," he said, " in the 
 shape of a crime. To admit such evidence would be contrary to 
 the true line of distinction, which is this, that in a direct prosecu- 
 tion for a crime it is admissible, but, where the prosecution is not 
 directly for the crime but for the penalty, it is not. If evidence to 
 character were admissible in such a case as this, it would be ne- 
 cessary to try character in every charge of fraud upon the excise 
 and custom-house laws." (A) 
 
 On trial for On the trial of an indictment for a rape, evidence is admissible 
 
 rape. on the part of the prisoner, that the woman bore a notoriously bad 
 
 character for want of chastity and common decency, or that she 
 had before been criminally connected with the prisoner; but it 
 cannot be shown, that she had a criminal connection with other 
 Assault with persons. (4) And, on an indictment for an assault with intent to 
 intent. commit a rape, general evidence of the woman's bad character, 
 
 previous to the supposed offence, is clearly admissible; but evi- 
 dence of particular facts, to impeach her chastity, cannot be receiv- 
 ed in this case more than in the last, not even for the purpose of 
 contradicting her answers in cross-examination. (5) Her answers 
 to questions, respecting particular facts, not involved in the issue, 
 are conclusive. And if on cross-examination she admit her own 
 misconduct in some earlier transactions, it would be proper, on re- 
 examination, to inquire into her conduct subsequent to such trans- 
 actions, for the purpose of restoring her credit. Other witnesses 
 may also b^ called, to show that she has since retrieved her char- 
 acter. (6) (z) 
 
 (1) Bull N. P. [293.] (4) Hodgson's case, 1-812, MS. Russ. 
 
 (2) Goodright dem. Fnrr v. Hicks, & Ry. Cr. C. 211. S. C. 
 
 Bull. N P. 296. (5) R. v. Clarke, 2 Stark. N. P- C. 
 
 (3) Attorney General v. Bowman, 2 243, bv Mr. Justice Holroyd. 
 Bos. & Pull. 532, (a). (6) 'ibid. 242. 
 
 (A) See Note 339, p. 456. (i) See Note 340, p. 438.
 
 Sect. 3.] Evidence confined to Points in Issue. 177 
 
 In trials for felony and high treason, and in trials also for misde- 
 meanors, (where the direct object of the prosecution is to punish 
 the offence,) the prisoner is always permitted to call witnesses to 
 his general character, (j) and in every case of doubt, proof of good 
 character will be entitled to great weight, (k) The inquiry as to pro^f of ood 
 the prisoner's general character ought manifestly to bear some anal- character, 
 ogy and reference to the nature of the charge against him. On a 
 charge of stealing, it would be irrelevant and absurd to inquire in- 
 to the prisoner's loyalty or humanity; on a charge of high treason, 
 it would be equally absurd to inquire into his honesty and punctu- 
 ality in private dealings. Such evidence relates to principles of Up^n what 
 moral conduct, which, however they might operate on other occa- P0'"*»- 
 sions, would not be likely to operate on that which alone is the 
 subject of inquiry; it would not afford the least presumption, that 
 the prisoner might not have been tempted to coaimit the crime for 
 which he is tried, and is therefore totally inapplicable to the 
 point in question. The inquiry must also be as to the general General char- 
 character: for it is general character alone which can afford any 
 test of general conduct, or raise a presumption that the person, who 
 had maintained a fair reputation down to a certain period, would 
 not then begin to act a dishonest unworthy part. Proof of par/ic- 
 ular transactions, in which the defendant may have been concerned, 
 h not admissible, as evidence of his general good character. (/) 
 What, then, is evidence of general character? The best medium 
 of proof is, by shewing how the j>erson stands in general estima- 
 tion; proof that he is reputed to be honest is evidence of his char- 
 acter for honesty, and the species of evidence most properly resort- 
 ed to in such inquiries. It frequently occurs, indeed, that witnesse?> Particular acts- 
 after speaking to the general opinion of the prisoner's character, 
 state their personal experience and opinion of his honesty ; but 
 when this statement is admitted, it is rather from ftivor to the pris- 
 oner, than strictly as evidence of general character. (1) (m) In ca- 
 ses where the intention forms a principal ingredient in the of- 
 fence, a wider scope is allowed. On a charge of murder, for in- 
 stance, expressions of good will and acts of kindness on the part 
 of the prisoner towards the deceased, are always considered im- 
 portant evidence, as shewing what was his general disposition 
 
 (t) See 31 Howell, 190, 310. 
 
 (;■) See Note 341, p. 459. (fc) See Note 342, p. 459- (i) See Note 343, p. 460. 
 (m) See Note 344, p. 460. 
 
 Vol. I. 23
 
 178 Evidence confined to Points in Issue. [Ch. 7. 
 
 towards the deceased, from which the jury may be led to conclude, 
 that his intcmiop. cou'd not have been what the charge imputes, (n) 
 
 Rule in crimi- 'j^^jjg j.^j^ j{,^[ ^jj nianncr of evidence ou^lii to be rejected which 
 cal cases. ' ... ,. i t -i i 
 
 is foreign to ihe pomts in issue, appJies more slrongly, u possible, 
 
 to criminal prosecutions than to civil cases. This rule is founded 
 in common justice; for no person can be expected to answer, un- 
 Treason. prepared and at once, for every action of his life. In treason, there- 
 
 fore, no evidence is to be admitted of any overt act that is not ex- 
 pressly laid in the indictment. This v;as the rule at common law: 
 and it is again prescribed and enforced by the statute of W. 3, 
 which contains an express provision to that effect, (1) in conse- 
 quence of some encroachments that had been made in several state 
 Proof of overt- proseculions. (2) The meaning of the rule is, not that the whole 
 °'^'^" detail of facts should be set forth, but that no overt act amounting 
 
 to a distinct independent charge, though falling under the same 
 head of treason, shall be given in evidence, unless it be expressly 
 laid in the indictment; but still, if it conduce to the proof of any 
 of the overt acts which are laid, it n:iay be admitted as evidence of 
 such overt acts. (3) With this view, the declarations of the prison- 
 er, and seditious language used by him, are clearly admissible in 
 evidence, as explaining his conduct, and shewing the nature and 
 object of the conspiracy. (4) And acts of treason, tending to prove 
 the overt acts charged, though committed in a foreign country, 
 may be given in evidence. (5) (o) 
 
 Borglary. On the trial of an indictment for burglary and larceny, (G) it 
 
 appeared upon the evidence, that the prisoners might have en- 
 tered the house before it was dark, and that they had not taken 
 any part of the goods at the time wlien they were discovered in 
 the house; upon which the counsel for the piosecution proposed 
 
 (1) W. 3, c. 3, s. 8. letter from tho prisoner, explanatory 
 
 (2) Foster, Cr. L. 245, 246. of that statefl on i!ie record, is ad- 
 
 (3) Id. 9, 246. Vaughan's case, inissiblt;. Robinson's case, 2 East, P. 
 5 St. Tr. 2, fol. ed. S. C. 13 Howeirs C 1112. 
 
 St. Tr. 453. Deacon's case, 9 St. Tr. (5) Fost. Cr. L. 10. Deacon's case, 
 
 8, fol. ed. S. C 15 Howell's St. Tr. 9 St. Tr- 8, fol. ed. S. C. 13 How 
 
 747. ell's St. Tr. 747. 
 
 (4) R. V. Watson, 2 StarUie, N. P. (6) R. v. Vandercomb and AbboU, 
 C. 134. So on an indictment for send- 2 Leach, Cr. C. 816. 
 
 ing a threatening letter, a subsequent 
 
 (n) See Note 345, p. 461. (o) See Note 346, p. 461-
 
 Seel. 3.j Evidence confined to Points in Issue. 179 
 
 to eive evidence of a larceny in the house committed by the pris- Proof of other 
 1- 1 1 I /-. . • J I -I acts of prison- 
 
 oners on a preceding day; but the Court rejected ins evidence, on er. 
 
 the ground that it tended to prove a felony of a totally distinct 
 kind, which had no reference to the subject matter of the prosecu- 
 tion; the prisoners were, therefore, acquitted on this charge, but 
 afterwards indicted again for the otlier offence, and convicted. 
 
 Although it is usual to confine the prosecutor to one single act 
 of felony, yet when the character of the particular act, charged 
 against the prisoner, is to be collected from other acts done by him, 
 all of them constituting one entire transaction, it is discretionary 
 in the judge to allow the prosecutor to go into the whole. (1) (p) J 
 
 In a prosecution for uttering a bank note, bill, or promissory p^oof of other 
 note, with knowledge of its being forged, proof that the prisoner actsasevi- 
 had uttered other forged notes or bills of the same kind, (2) (q) or lention. 
 that he had other forged notes or bills of the same kind in his pos- 
 session, (3) (r) is clearly admissible, as shewing that he knew the 
 note or bill in question to be forged. And on a prosecution for utteiin" other 
 uttering counterfeit money, the fact of the prisoner having other "o^es o'' ™0' 
 counterfeit n)oney upon him, or of his having uttered other pieces 
 of money of the same kind, is evidence of his having known, 
 that the money, which he is charged with uttering, was counter- 
 feit; (4) (s) and proof of the prisoner's conduct in such other utter- 
 ings, (as, for example, that he passed by different names,) is, for 
 the same reason, clearly admissible. (5) (t) Such evidence, farfrom 
 being foreign to the point in issue, is extremely material ; for the 
 head of the offence charged upon the prisoner is, that he did the 
 act with knowledge : and it woidd seldom be possible to ascertain, 
 under what circumstances the uttering took place, (whether from 
 
 (1) R. V. Ellis, C Barn. & Cress, ed ; and they ought to ba produced, 
 145, by Lord Tenterden, C. J. See R. v. Millard, Bayley on Bills, 419. 
 also Egerton's case, Russ. & Ry. Cr. Russ. & Ry. Cr. C. 245, S. C. There 
 C. 376. is gieat authority for holding, that 
 
 (2) R. V. Wylie, 1 New Rep. 92. proof of utterings of forged l)ill3 or 
 R. V. Ball, 1 Canipb. 324. Russ. & notes of a different kind, is also ad- 
 Ry. Cr. C. 132, S. C. missible. Bayley on Bills, 4th cd. 450. 
 
 (3) R. V. Hough, Russ. &. Ry. Cr. (4)1 New. Rep. 95. 
 
 C. 120. R. V. Rowley, Bayley on (5) See R. v. Millard, Biyley on 
 Bills, 447. Th9 forgery of tho other Bills, 449. 
 notes or bills must be distinctly prov- 
 
 (p) Fee Note 347, p. 462. (q) See note 348, p. 462. (r) See Note 349, p. 
 464. (j) See Note 350, p. 464. (/) See Note 351, p 465.
 
 180 Evidence confined to Points in Issue. [Ch. 7. 
 
 Proof of other ignorance, or with an intention to commit a fraud,) whithout inquir- 
 acts of prison- • • . ,1 j r 1 • • 1 r 1 
 
 er, ing mto the demeanor ot the prisoner m the course of other irans- 
 
 actions. The more detached in point of time tlie previous ulter- 
 ings are, the less relation they will bear to that stated in the in- 
 dictment; and the question then would be, whether the evidence 
 is sufficient to warrant the inference of knowledge at one time, 
 from such particular transactions at another time. (1) That is a 
 question entirely for the jury. But whatever weight the evidence 
 may have, (which is quite another consideration,) it is clearly ad- 
 missible; not as evidence of another offence, but simply of another 
 transaction, in which the prisoner was engaged. 
 
 Conspiracy to On an indictment against several prisoners, for a conspiracy to 
 carry on the business of common cheats, proof is admissible, that the 
 prisoners, at a different time, made similar representations to other 
 tradesmen besides those named on the record : (2) (m) cumulative 
 instances are necessary to prove the offence ; the same sort of evi- 
 dence is allowed in a prosecution for barratry, and, as before men- 
 tioned, in prosecutions for the greatest of all offences, high trea- 
 
 Murder. son. (y) The same kind of proof is constantly admitted in trials for 
 
 murder ; in which former grudges and antecedent menaces are 
 evidence of the prisoner's malice against the deceased, (w) 
 
 Conspiracy to On the trial of an indictment against several persons for a con- 
 spiracy, in unlawfully assembling for the purpose of exciting dis- 
 content and disaffection, it would be irrelevant to inquire, on be- 
 half of the defendants, Vv'hat the conduct of those, employed to dis- 
 perse the meeting, may have been at the time of the dispersion, if 
 no evidence has been previously ofl^ered, on the part of the prosecu- 
 tion, as to the conduct of the meeting at that time or subsequent, 
 ly ; for the conduct of the dispersers of the meeting can have no 
 bearing on the intention and object of the meeting itself ; in other 
 words, it is irrelevant to the matters in issue. (3) In such a prose- 
 cution, as the material points for the consideration of the jury are, 
 the general character and intention of the assembly, and the par- 
 
 (1) New. Rep. 94. (3) R. v. Hunt, 3 Barn. & Aid. 
 
 (2) R. V. Roberts, 1 Campb. 400. 566, 577. 
 
 (u) See Note 352, p. 465. (t>) See Note 353, p. 465. (w) See Note 354, p. 465.
 
 Sect. 3.] Evidence confined to Points in Issue. 181 
 
 ticular case of each defendant as connected wiih that general char- Proof of other 
 acter, it would be relevant to prove, on the partot the prosecution, oner, 
 that bodies of men came from different parts of the country to at- 
 tend the meeting, arranged and organized in the same manner, 
 and acting in concert. It would be relevant also to ^hew, that 
 early on the day of the meeting, in a spot at some distance from 
 the place of meeting, (from which very spot a body of men came 
 afterwards to the place of meeting,) a great number of persons, so 
 organized, had assembled, and had there conducted themselves in 
 a disloyal, riotous, or seditious manner. (1) Further, it would be 
 relevant, on such a trial, to produce in evidence certain resolutions, 
 which had been proposed, by one of the defendants, at a large as- 
 sembly in another part of the country, very recently held for the 
 same professed object and purpose as were avowed by the meeting 
 in question, that defendant having acted at both meeting as presi- 
 dent or chairman; in a question of intention, as this is, it is most 
 clearly relevant to shew, against that individual, that, at a similar 
 meeting, held for an object professedly similar, such matters had 
 passed under his immediate auspices. (2) 
 
 It would not be allowable to shew, on the trial of an indictment, 
 that the prisoner has a general disposition to commit the same kind 
 of offence as that charged against him. Thus, in a prosecution for 
 an infamous crime, an admission by the prisoner, that he had com- 
 mitted such an offence at another time, and with another person, 
 and that he had a tendency to such practices, ought not to be re- 
 ceived in evidence. (3) 
 
 As, in trials for conspiracies, whatever the prisoner may have Actsand dec- 
 • 11 1 I I 1 1 • r '^rations of 
 
 done or said, at any meetmg alleged to beheld m pursuance of prisoner when 
 
 the conspiracy, is admissible in evidence against him, on the part ^|"^^"cefor 
 
 iim. 
 
 (1) R. V. Hunt, 3 Barn. & Aid. 573, ed, and proved by that person to corres- 
 574. pond with the resolutions afterwards 
 
 (2) R. V. Hunt, 3 Barn. & Aid. 568, read at the meeting, is good evidence of 
 572. The Court of King's Bench such resolutions; without previous notice 
 also decided, in this case, that a writ- to the defendant to produce the paper, 
 ten paper, delivered by the defendants from which they were read 
 
 to a person at the meeting, fas a copy (3) R. v. Cole, Mich. term. 1810, 
 
 of the resolutions about to be propos- by all the judges, MS.
 
 ^^2 Evidence confined to points in Issue. [Ch. 7. 
 
 fcuofJS." of tlie prosecution; so, on the other hand, any other part of his 
 one'-. conduct at the same meetings, will be allowed to be proved, on his 
 
 behalf; for the intention and design of the parly, at a particular 
 time, are best explained by a complete view of every part of his 
 conduct at that time, and not merely from the proof of a single and 
 insulated act or declaration. In the case of Walker and others, (1) 
 who were tried for n conspiracy to overthrow the government, evi- 
 dence having been produced, on the part of the prosecution, to 
 shew that the conspiracy existed and was brought into overt-act at 
 meetings in the presence of Walker, the counsel for the prisoners 
 was allowed to ask a witness, whether, at any of these times, he 
 had ever heard Walker utter any word inconsistent with the duty 
 of a good subject? The question was opposed, but held by Mr. 
 Justice Heath to be admissible. The prisoner's counsel were also 
 allowed, in the same case, to inquire into the general declarations 
 of the prisoner at those meetings, whether the witness had heard 
 him say any thing that had a tendency to disturb the peace of the 
 kingdom; and questions to the same effect were put to many 
 other witnesses in succession. 
 
 Partortho ^^^^ question, in the case last cited, was expressly confined, and 
 
 transaciion SO required by the Court to be, to the conduct of the prisoner at 
 proved against i . , . i • i i , i .,..,. 
 
 him. tnose particular meeinigs, w[)ich had been previously mquired into 
 
 on '.he part of the prosecution. Proof of what the prisoner might 
 have said or done at other meetings, or at other times, unconnect- 
 ed with the transactions proved against him, would not have been 
 admissible evidence in his favor. In Lord George Gordon's case, (2) 
 a witness w-as asked by the prisoner's counsel, on cross-examina- 
 tion, as to a statement made by the prisoner, on the night before 
 the meeting in St. George's Fields, and with respect to which 
 meeting much evidence had been produced. This was objected 
 to; and the Court decided, that the question was not regular. 
 Lord Mansfield held, that as the counsel for the crown had given 
 evidence of what the prisoner said at the meeting upon the 29th 
 May, the counsel for the prisoner might shew the whole connec- 
 tion of what the prisoner said besides at that meeting; but that 
 ihey could not go into evidence of what he said on the antecedent 
 
 (1) 23 HoweTl, 1131, nnd sea 31 (2) 21 Howell's St. T. R. 542. 
 Howell'8 St Tr. 48.
 
 Sect. 3.] Evidence confined to Points in Issue. 183 
 
 day. And in Hanson's case, (1) on a charge for pronfiollng a riot, Proof of other 
 the counsel for the prisoner was not allowed to prove what he had ^^^^° '^"*' 
 
 said, privately to a friend, previous to his going to the place of riot, 
 
 respecting his motive in going thither. And many other cases 
 might be cited to the same eflect. 
 
 The ride, on this subject, appears to have been extended much H. Tooke'a 
 beyond the line here laid down, on the trial of Home Tooke. (2) ^^^^' 
 In that case, several publications were given in evidence, on the 
 part of the crown, containing republican opinions, which had been 
 distributed by the prisoner during the period assignd in the in- 
 dictment for the existence of the conspiracy; and this evidence 
 was much relied on, as shewing that the notion of a reform, which 
 was expected to be set up by the prisoner in his defence, was a 
 mere pretext to cover his treasonable designs: to repel this conclu- 
 sion, the counsel for the prisoner ofiered in evidence a book, wliich 
 had been written by the prisoner twelve years before, on the subject 
 of parliamentary reform; the evidence was objected to, as having 
 no relation with the particular transaction in question, and because 
 the prisoner's opinions, whatever they were formerly, might have 
 afterwards changed. But the Lord Ch. J. Eyre said, that the 
 question was not whether this book had a reference to the conspir- 
 acy charged, but W'hether it had not reference to the proof given 
 in support of the charge: and he thought it evidence to rebut the 
 supposition, that the reform of parliament was a pretence made by 
 iliu prisoner. The book w^as accordingly received in evidence. 
 There is great authority, however, for doubting, whether such ev- 
 idence would, on revision, be considered strictly admissible. (3) 
 It seems, indeed, reasonable, if some other acts of the prisoner, 
 besides those charged in the indictment, are proved against him 
 for the purrjose of shewing his design in the affair in question, 
 that he phould be allowed to explain those acts by proof of oth- 
 er contemporaneous particulars of his conduct, which shew thai 
 he had a different design from that imputed to him. But this 
 limitation (namely, that such other particulars, offered in evidence 
 
 (1) 31 Howell's St. Tr. 42S1. point by Lord Ellenborough, C. J., ia 
 
 (2) 1 East, P. C. 62, Gurncy's Re- R. v. Lambert and Perrv, 31 How- 
 port, vol. ii. 36. 25 Howell's St. Tr. ell's St. Tr. 355, S. C. 2 Campb. N. 
 345, S. C. P. C. 400. 
 
 (3) See iho observationi on this
 
 184 Evidence confined to Points in Issue. [Ch. 7. 
 
 Proof of other by the prisoner, ought to be contemporaneous with those proved 
 Tnlx! ''"** °" *^'^ other side, or at least confined within the same hmiis, to 
 which the evidence on the part of the prosecution is subject,) ap- 
 pears to be just and necessary; for, otherwise, the prisoner would 
 be at liberty to take the whole range of his life, in the course of 
 which his character and his designs may have undergone a com- 
 plete change. 
 
 Hardy'icase. in Hardy's case, (1) great liberty was allowed to the counsel 
 for the prisoner, in examining into particulars of his conduct, 
 even into his speculative opinions; and perhnps it may be ques- 
 tionable, whether the rule was not carried to its utmost extent in 
 that case. The question there put to the witness was this: 
 whether, from his personal acquaintance with the prisoner, he had 
 ever heard hinj state, what was his plan of reform? This ques- 
 tion was objected to. The overt-act charged was, that the pris- 
 oner, for the purpose of accomplishing the treason of compassing 
 the king's deatii, did conspire with others to call a convention of 
 the people, in order that the convention might depose the king; 
 and the counsel for the prisoner submitted, that for the purpose 
 of shewing that the convention was intended to be held, not with 
 the design imputed by the indictment, but >vith an innocent de- 
 sign, they miglit go into evidence of what the prisoner had at oth- 
 er times declared, inasmuch as the counsel for the prosecution had 
 gone into all that the prisoner had, at any part of his life, declared 
 touching this fact, and had gone also into evidence of what other 
 Lord Russel's members of the corresponding societies had said. They then de- 
 '"*■ fended the question by an able argument, in the course of which 
 
 several cases were cited from the State Trials; particularly the 
 case of Lord Russel, the one which came nearest in principle to 
 that under discussion, wi.ere the charge against the prisoner was 
 for compassing the king's death, and the overt-act was, consult- 
 ing to raise rebellion and seize the king's guards; and Lord Rus- 
 sel, in his defence, called many witnesses to speak to his affec- 
 tion towards the government, and his detestation of risings against 
 it; some of the witnesses gave evidence of his conversations and 
 
 (I) 24 Howell's State Trial?, 1065. O'Connor, 27 Hcwell's St. Tr. p, 31, 
 1093. See trial of O'Coigiy and and 31 Howell's St. Tr. 1S9, 310.
 
 Sect. 3.] Evidence confined to Poiiits in Issue. 185 
 
 sentiments on this subject, shewing his aversion to all risings of Proof of other 
 
 nets 01 DnsO" 
 
 the people: Doct. Burnet andDoct. Cox, in particular, spoke fully ner. 
 to this point, and without any objection either from the court or 
 from the counsel for the prosecution. After the question, in 
 Hardy's case, had been argued at some length, Lord Ch. J. Eyre 
 is reported to have tlius addressed himself to the prisoner's coun- 
 sel, (1) " I do not know whether you can be content to acquiesce 
 in the opinion, that we are inclined to form upon the sul>ject, in 
 which we go a certain way with you. Nothing is so clear, as 
 that all declarations which apply to facts, and even apply to the 
 particular case that is charged, though the intent should make a 
 part of that charge, are evidence against a prisoner, and are not 
 evidence for him, because the presumption, upon which declara- 
 tions are evidence, is, that no man would declare any thing against 
 himself, unless it were true ; but that every man, if he were in 
 difficulty, or in apprehension of any difficulty, would make decla- 
 rations for himself. Those declarations, if offered as evidence, 
 would be offered, therefore, upon no ground which entitles them 
 to credit. That is the general rule. But if the question be, what 
 was the political speculative 0[)inion which this man entertained, 
 touching a reform of parliament, I believe we all think that opin- 
 ion may very well be learned and discovered by the conversations 
 which he has held at any time or in any place." (2) The ques- 
 tion afterwards put to the witness, was, whether, before the time 
 of the convention which was imputed to the prisoner, he had ever 
 heard from him what his objects were, and whether he had at all 
 mixed himself in that business.'' and, in answer, the witness stated 
 what he had heard from the prisoner respecting his plan of re- 
 form. (3) 
 
 The rule, which is now the subject of discussion, (namely, that 
 evidence is to be confined to the points in issue,) will be further 
 illustrated by considering the effect of judgments by default of the 
 
 (1) 24 Howell's St. Tr. 1094. sel to one of the wituesses, nnd allow- 
 
 (2) As to the extent of this rule, to od to be answered, was, as to what 
 conversations " at amj time" howcv- the prisoner had declared to be the 
 er remote; see supra, p. 183. object of the correspondiug societies? 
 
 (3) 24 Ildwell's St. Trials, p. 1097. This question was not opposed. lb. 
 Another question, which is stated to p. UOl. 
 
 have been put by the prisoner'e coun- 
 
 VOL. I. 24
 
 186 Evidence confined to Points in Issue. [Ch. 7. 
 
 payment of money into court, and of particulars of demand under 
 a Judge's order. First, as to judgments by default. 
 
 Judgment by ^ judgment by default is an admission of the cause of action, 
 default. Thus, in an action on a bill of exchange against the defendant 
 
 as acceptor, it admits, that he accepted it, and that the bill is as 
 stated ill the declaration; and he cannot afterwards shew, on the 
 execution of a writ of inquiry, that he had not accepted it ;(1) 
 nor can he object to the sufficiency of the stamp, on which the 
 bill is drawn ; the only use in producing the bill is, for the pur- 
 pose of seeing whether there is any indorsement upon it, of money 
 having been paid. (2) So, in an action for goods sold and deliver- 
 ed, or for money had and received, the defendant, by suffering 
 judgment to go by default, admits that something is due; and he 
 cannot afterwards dispute the contract of sale, or shew fraud on 
 the pa-t of the plaintiff in making the contract; (3) but the plain- 
 Judgment on tiff will only have to prove the amount due to him. (x) So, on the 
 demurrer. . ~ .^..^., , ,, 
 
 execution ot a writ oi inquiry alter judgment on demurrer, the de- 
 fendant cannot controvert any thing but the amount of the sum in 
 demand: as, in an action for goods sold and delivered, to which 
 the defendant pleaded coverture, and the plaintiff replied, that the 
 defendant's husband had resided abroad, and that the defendant, 
 d'.'ring all the time, &c. had carried on trade as a feme sole, the 
 Court were of opinion, that, after judgment on demurrer to this 
 replication, evidence of the wife having acted as agent to the hus- 
 band ought not to have been admitted on the execution of the writ 
 of inquiry; that the only question, to be decided by the jury, was 
 the amount of the debt, and that the question, whether the debt 
 had been contracted by the defendant as agent for her husband, or 
 in her separate capacity, ought to have been considered as deter- 
 mined by the record. (4) * (y) 
 
 (1) Greene v. Hearne, 3 T. R. 301. (3) East India Company v. Glover, 
 Bevis V. Lindfell. 2 Str. 1149. 1 Str. 612. 
 
 (2) 3 T. II. 302. Billers v. Bowles, (4) De Gailion v. L'Aigle, 1 Bos. & 
 Barnes' Rep. 233. Ellis v. Wall, ib. Pull. 368. 
 
 234. Bayley on Bills, 227; and Mills 
 V. Lyne, 385, MS. case there cited. 
 
 * After judgment by defiult against ore of two defendants, the plaintiff may elect 
 to be nonsuited on the trial of the issue joined by the other defendant. Murphy v. 
 Doulan, 5 Barn. & Cress. 178. 
 
 (z) See Note 355, p. 466. (y) See Note 356, p. 466.
 
 Sect. 3.] Evidence confined to Points in Issue. 187 
 
 Secondly, as to naynsent of money into court. Such payment Payment of 
 •' ' •' '' , . money into 
 
 is in general an acknowledgment of the right of action to the court. 
 
 amount of the particular sum. (1)* And as it is an acknowledg- 
 ment on record, the party cannot recover it back, although he has 
 paid it wrongfully or by mistake. (2) It is an admission by the de- 
 fendant, that the plaintiff has a legal demand to a certain extent. 
 But it is not an acknowledgment beyond that amount, and will 
 not preclude the defendant from taking any objection to the action 
 with respect to any other part of the demand, to which the pay- 
 ment of the money does not apply, although, if no money had 
 been brought into court, the objection might have been a bar to 
 the whole demand. (3) 
 
 Where there is a count on a special contract together with mon- Special con- 
 ey counts, payment of money generally upon the whole declara- mon 'cmints°™* 
 tion is an admission of the contract on every count, to w^iich the 
 contract is in its nature applicable ; and after such an admission, 
 the defendant will be precluded from disputing the existence of the 
 contract as stated. (4) Thus in the case of Cox v. Brain, (5) 
 where the declaration stated a specific bargain to pay a particular 
 sura of money for certain articles, a general payment of part of the 
 money into Court, by admitting the bargain, admitted also the sum 
 which was originally due ; and the only question that could be 
 raised after that admission, would be, whether the remainder of 
 the money had been previously paid. If the contract had been to 
 pay, not any particular price, but the average price at which such 
 articles were sold, to be ascertained by a certain time, a general 
 payment of money into Court would not have admitted the amount 
 of the breach as stated in the declaration, though it would admit 
 a cause of action on each count, and something due on each of the 
 breaches : the contract is admitted, but not the averment of the 
 average price. (6) {z) 
 
 (1) 5 Burr. 2640. 1 T. R. 465. 106. Blackburn v. Scholes, 2 Campb. 
 2 East, 134. 1 Barn. & Cress. 4. 3 341. 
 
 Barn. & Cress. 10. (4) Bennet v. Francis, 2 Eos. & 
 
 (2) Vaughan v. Barnes, 2 Bos. & Pull. 550. 
 
 Pull. 392. Malcolm v. Fullarton, 2 T. (5)3 Taunt. 95. 2 Barn. & Aid. 
 
 R. 645. lis. 
 
 (3) Cox V. Parry, 1 T. R. 464. (6) Stoveld v, Brewin, 2 Barn. & 
 Mellish V. Allnut, 2 Maule & Selw. Aid. 116. 
 
 * And the plaintiff may elect to be nonsuited, after payment of money into court 
 by the defendant. Cotterel v. Apsey, 6 Taunt. 324. 
 
 {z) See Note 357, p. 467.
 
 188 
 
 Evidence confined to Points in Issue. [Ch. 7. 
 
 Pajmeiit into 
 court. 
 
 Common 
 couuts. 
 
 Bill of ex- 
 change. 
 
 Covenant. 
 
 Jurisdiction of 
 court. 
 
 Policy. 
 
 Sale by sam- 
 ple. 
 
 Agreement to 
 pay another's 
 debt. 
 
 In an action of apsiimpsit for goods sold and delivered, and on 
 the money counts, to which the defendant pleads the general issue, 
 and the statute of limitations, payment into court generally does 
 not lake the case out of the statute. (1) 
 
 In an action on a bill of exchange, tlie defendant by paying mo- 
 ney into court generally, dispenses with the regular proof ol" the 
 party's hand-writing, (2) and cannot object to the sufficiency of 
 the stamp on which the bill is drawn. (3) So, in an action of 
 covenant, he admits the execution of the deed. (4) On the 
 saine principle, payment of money into court admits the plaintift^'s 
 right to sue in that court; (5) it admits also the title on which he 
 sues, as, for instance, his being a surgeon, (6) or farmer of 
 tithes, &.C. (7) 
 
 Where the defendant has paid money into coiu't generally, upon 
 a declaration containing a count on a policy of insurance together 
 with money counts, he will not afterwards be permitted to shew, 
 that the policy was originally different, and has been altered by 
 the broker without his knowledge. (8) {a) 
 
 In an action to recover the amount of the sale of goods, which 
 have been sold by sample at a particular price, the defendant will 
 not be allowed to shew, after such general payment into court, 
 that the goods were of a quality inferior to the sample. (9) 
 
 In an action upon a promise to pay another person's debt, the 
 defendant cannot insist, after paying money into court, on the count 
 charging him with such promise, that the promise is not binding, 
 because not written and signed, as the statute of frauds directs ; 
 for he has admitted the agreement to be binding to a certain extent, 
 and disputes only the amount of the debt. (10) 
 
 (1) Long V. Grevillc, 3 Barn. & 
 Cre-s. 10. 
 
 (2) Gutteridge v. Smith, 2 H. Bl. 
 374. Middleton v. Brewer,' Peake, N. 
 P. C. 15. 
 
 (3) Israel v. Benjamin, 3 Campb. 
 40. 
 
 (6) Lipscombe v. Holme3, 2 Campb. 
 441. 
 
 (7) Broadhurst v. Baldwin, 4 Price, 
 5S. 
 
 (8) Andrews v. Palsgrave, 9 East, 
 325. 
 
 (9) Leggett v. Cooper, 2 Starkie, 
 
 (4) Radnal v. Lynch, 2 Campb. N. P. C 103. 
 357. Watkina v. Towers, 2 T. R. (10) Ramsbottom v. Brewer, Peakc, 
 275. N. P. C. 15. 
 
 (5) Miller v. Williams, 5 Esp. N. 
 P. C. 19. 
 
 (a) See Note 358, p. 469.
 
 Sect. 3.] Evidence conjined to Points in Jssue. 189 
 
 Payment of money into court is an admission only of a legal Payment into 
 
 demand. If the contract declared upon be illegal, the defendant 
 
 cannot give it validity by his admission; no admission of the IHeguI con- 
 parties will oblige the court to give effect to an illegal trans- 
 action, (1) 
 
 Although payment of money into court admits the contract, 
 that is, the entire consideration for the act and the entire act 
 which is to be done for such consideration, yet it will not be an 
 admission of other parts of the contract, which are distinct and col- 
 lateral, respecting the liquidation of damages after breach of the 
 contract. (2) If indeed ilie provision is of such a nature as will 
 discharge the defendant fronj all liability under the contract, unless 
 the plaintiff has complied with the condition, (as was the case in 
 Clay V. Willan, (3) where the goods were not to be accounted for 
 to any amount, unless properly entered and paid for,) that will not 
 merely operate in reduction of the damages, but in bar of the ac- 
 tion; and therefore, in such a case, if the defendant pays money 
 into court on a declaration against a carrier in the conmion form, 
 he cannot afterwards give in evidence such a provision, which en- 
 tirely negatives the contract as stated in the declaration. 
 
 Payment of money into court ought to be proved by the produc- Proof of pay- 
 tion of the rule of court, or by the office copy of the rule. It will 
 not be sufficient to call the attorney, who has taken the money out 
 of court. (4) The production of the rule by the defendant does 
 not entitle the plaintillto a reply. (5) 
 
 Thirdiv, as to bills of particulars. — It has been before mention- „.„ - 
 
 • . . ' Bill of parlic- 
 
 ed, that a bill delivered, by an attorney to his client for business ulars. 
 done during a certain period, or to a tradesman for goods sold, is 
 strong presumptive evidence against any additional item within 
 the same period. The party is not however precluded from shew- 
 ing, that items, included in a subsequent bill, have been otnitted 
 by mistake in the former bill, and that the business, which is the 
 
 (1) Ribbansv. Cricket, 1 Bos. -k 40. As to the commencement of the 
 Pull. 264. 2 East, 134. practice o( paying money into court, see 
 
 (2) See Clarke v. Fray, fi East, 564. 2H. Bl. 376; 1 Ld. Raym. 254. 
 
 (3) 1 H. Bl. 298. 6 East, 574. (5) 2 Taunt. 267. 
 
 (4) Israel v. Benjamin, 3 Campb.
 
 190 Evidence confined to Points in Issue. [Ch. 7. 
 
 Bill of panic- subject oi the charge, has been done by bim for the defendant. A 
 _! '. bill of particulars, delivered under a judge's order, is more con- 
 Its effect, elusive; its sole object is to inform the opposite party of what he 
 ought to come prepared to try; and it will effectually preclude 
 the party, who delivers it, from giving evidence of any other de- 
 mand not there stated. (6) 
 
 Confined to Thus, where a declaration contained a count for money had 
 
 part 01 demand . - . . , 
 
 and received for the plaintiff's use, and also a demand for horses 
 
 sold by the plaintiff to the defendant himself, and the bill of partic- 
 ulars specified the demand alone, it was decided that the plaintiff 
 could not give evidence of horses being sold by the defendant as 
 the plaintiff's agent;(l) for a contract for the absolute sale of hor- 
 ses to the defendant is essentially different from a contract to repay 
 money received on a sale of horses by commission; and the pro- 
 ceeds of such a sale by the defendant could only be recovered under 
 the count for money had and received, which the plaintiffabandon- 
 ed by confining his bill of particulars to the demand stated in the 
 other count. 
 
 Where the declaration contains a count on a promissory note, 
 together with money counts, and the particular of demand includes 
 only the note, the plaintiff will not be allowed to prove the consid- 
 eration for which the note was given, in order to recover under the 
 money counts; and if he cannot recover upon the note on account 
 of the want of a proper stamp, he will be nonsuited. (2) 
 
 Second partic- Although the plaintiff, on perceiving the defect of his first par- 
 ticular of demand, which only mentions the promissory note, de 
 livers a second bill of particulars large enough to comprehend the 
 original debt, yet this will not avail him, unless the second partic- 
 ular has been delivered under a Judge's order. (3) (c) 
 
 not abridged On the Other hand, if the plaintiff, 'either before or after 
 
 by demand, delivering a bill of particulars under a Judge's order, makes a 
 
 demand of payment only for a part of the articles specified in 
 
 (1) Holland v. Hopkins, 2 Bos. & (2) Wade v. Beasley, 4 Esp N. P. 
 Pull. 243. C. 7. 
 
 (3) Brown v. Watts, 1 Taunt. 353. 
 
 (6) See Note 355, p. 469. (c) See Not© 860, p. 469.
 
 Sect. 3.] Evidence confined to Points in Issue. 191 
 
 the bill, such a demand will not have the effect of confining him Bill of panic- 
 in his evidence, nor supersede the bill of particulars. (I) '. 
 
 In an action on a note, if the plaintiff is entitled to recover the Interest on 
 
 . . . ^ note, 
 
 principal sum due, he may recover interest also, as arismg out of 
 
 the principal and incident to it, though it has not been specifically 
 
 claimed in the particular of demand. (2) 
 
 In an action of assumpsit, where the defendant pleaded in abate- Particular 
 ment, that the promises were made by himself and another per- against de- 
 son jointly, on which plea issue was joined, and on the trial it ap- Pendant, 
 peared from the bill of particulars, that some of the articles had 
 been furnished to the defendant jointly with the person named in 
 the plea. Lord Kenyon C. J. held that the plaintiff was bound by 
 his bill of particulars, which supported the defendant's plea: and 
 therefore he nonsuited the plaintiff. (3) Here the articles stated 
 to have been furnished on the joint credit of the defendant and an- 
 other person, were items of the plaintiff's demand; and were a 
 necessary part of his bill of particulars, if he intended to recover 
 for them, {cl) 
 
 The use of a bill of particulars is to prevent the inconveniences Error in par- 
 which might otherwise arise from the general and undefined state- 
 ments in the plaintiff's declaration, and to apprise the defendant 
 of the particulars of the demand, which the plaintiff has against 
 him. (e) If it gives sufficient information to the opposite party to 
 guard him against surprise, it answers the purpose for which it was 
 intended, and will be sufficient, though it may be in some respects 
 inaccurate. (/) 
 
 Thus, in an action of assumpsit for money paid to the defendant's 
 use, where in the bill of particulars an item for money advanced 
 was by mistake written under the natne of A. B., instead of being 
 written under that of C D. in another part of the particular, and 
 this appeared to have been advanced to the former. Lord Ellen- 
 borough allowed the plaintiff to prove, that the item in question 
 
 (1) Short V. Edwards, 1 Esp. N. P. (3) Colson v. Selby, 1 Esp. N. P. 
 C. 373. C. 451. A rule to set aside the non- 
 
 (2) Blake v. Lawrence, 4 Esp. N. P. suit was afterwards refused by the 
 C. 147. Court. 
 
 (d) See Note 361, p. 469. (e) See Note 362, p. 470. (/ ) See Note S63, p. 471.
 
 192 Evidence confined to Points in Issue. [Ch. 7. 
 
 Bill of pariic- was intended, and must have been understood, to refer to tlie latter 
 
 __! \ name, but by mere clerical error had been misplaced; and that if 
 
 Clerical error, iijg defendant could shew by affidavit, that he had been misled by 
 the plaintiff' 's panictiliir, it might furnish a ground for the Court 
 Error in date, afterwards to set aside ti;at pariiculnr sum. (1) So where the 
 work for which the action was brought was stated by the i)articu- 
 lar to have been done in a wrong month, when in fact no work 
 had been done, the plaintiff was allowed to give evidence of his 
 having done work for the defendant in the oilier month. (2) 
 
 In the case of Hurst v. Watkis, which was an action brought 
 by one partner against another to recover a balance due on a 
 statement of accounts, and on Vv'hich ilie bill of particulars was 
 confined to the balance due on separate accounts, the plaintiff, in 
 support of this demand, gave in evidence an account, in wliich the 
 defendant made himself debtor to a certain amount, and the de- 
 fendant in answer to this evidence produced an account subse- 
 quently rendered by the plaintiff, according to which there appear- 
 ed to be a balance due to the defendant on the separate accounts; 
 but on the opposite side of the page, there was a statement also of 
 the partnership accounts, on which the balance was in favor of the 
 plaintiff, and greatly exceeded the balance on the separate account. 
 It was objected that the plaintiff could not recover beyond his par- 
 ticular: the Court however said, that the defendant himself had 
 given the plaintiff a better case than he was at liberty to make for 
 himself, and that the plaintiff was entitled to a verdict for all that 
 had been proved to be due to him. (3) The parties afterwards 
 came to a compromise, and agreed upon the sum to be recovered- 
 It is to be observed, that there were peculiar circumstances in thia 
 case; the written paper, which the defendant gave in evidence, as 
 the writing of the plaintiff, could only have been admitted as one 
 entire writing, the whole to be taken together, and was not adniis- 
 sible merely in parts: the defendant could not use in evidence the 
 separate account of the plaintiff, without admitting also the part- 
 
 (1) Day V. Cower, 1 Canipb. 69, ings, bad been misdescribed in tho par- 
 
 n. Brown v. Hodgson, 4 Taunt 198. ticular; but the objection was overrul- 
 
 See also Davies v. Edwards, 3 Mauie ed. 
 
 & Selw. 380, an action of debt to re- (2) Millwood v. Walter, 2 Taunt, 
 
 cover rent, where the locality of the 224. 
 
 premises, not described in tho plead- (3) Hurst v. Watkis, 1 Carnpb. 68.
 
 Sect. 3.] Evidence confined to Points i?i Issue. 193 
 
 nership n ..: -lich was wi'iLteii by him on the same paper, ^''1 o^r='-^t'c- 
 
 since ths one part might have explained or refened lo the other; 
 
 and if the statement of a party is given in evidence against him- 
 self, the whole of the statement ought to be received, though all 
 its parts may not deserve the same credit. But it appears to be 
 too much to infer generally from the authority of this case, that, 
 because the evidence, adduced by the defendant, discloses other 
 items, which rr.ight have been included in the bill of particulars, 
 the plaintifi* ought therefore to recover on these items, as well as* 
 upon those which are specifically mentioned. The case in ques- 
 tion mu3l ba cor : Jered as a pariicular exception, and not as es- 
 tablishing a rule of so wide and general a nature. The plaintiff, 
 it is presumed, can neither cross-examine the defendant's witnesses 
 to any claim, which he has not comprehended in his particular of 
 demand, nor can he at the trial avail himself of any such claim, 
 though disclosed by the witnesses on the other side in their exam- 
 ination in chief, (g) 
 
 An order for particulars of a set-off calls upon the defendant to Deliyery of 
 deliver the particulars within a limited time, and, in default there- 
 of, expressly precludes him from giving evidence in support of his 
 cross-demand. This is the general form of such an order. (1) (A) 
 If it does not specify a certain day, before which the particulars 
 are to be delivered, but only requires them to be delivered forth- 
 with, and they are not delivered till many days after, so as to em- 
 barrass the plaintiff for want of time, he has a remedy by applying 
 to the Court, and he ought not to wait till the time of trial before 
 he objects to the lateness of the delivery; by accepting the partic- 
 ulars, and not making an app]ic::tlcri to the Court, he waives the 
 objection. (2) (i) 
 
 The particulars of demand are proved by the production of the Proof of pc-.- 
 Judge's order, and by proof of the delivery of the particulars; and 
 this delivery will be sufficiently proved by proving the signature of 
 the party's attorney, or of his agent, on the particulars. (J) 
 
 (1) See form, in Tidd. App. ch. 22. (2) Lovelock v. Chiveley, Holt, N. 
 a. 10. P. C. 652. 
 
 (g) See Note 364, p. 474. (A) See Note 365, p. 474. (i) See Note 366, p. 
 474. (;■) See Note 367, p. 475. 
 
 Vol. I. 25
 
 194 Affirmative of Issue Proved. [Ch. 7. 
 
 Sect. IV. 
 The JJJirmalive of the Issue to be proved. 
 There are several general rules, of great use in ascertaining 
 whether the plaintiff or defendant will have to prove the issue on 
 the record. One of the n}ost useful of these is the rule, which has 
 been taken as (he subject of the present section, namely, that the 
 point in issue is to be proved by the party who asserts the affirma- 
 tive; according to the maxim of the civil law. " Ei incumbit pro- 
 balio qui (licit, non qui negat.''^ (1) (/c) A few instances wiil be 
 sufficient to illustrate this rule. 
 
 Action for loss Ju an action for a loss, occasioned by barratry in the master of a 
 ship, where it was objected by the defendant, that the plaintiff 
 » ought to prove, that the master was not also the owner or freighter, 
 and that he did not act under the direction of the person who was, 
 (in vvhich case barratry could not be committed,) the Court held, 
 that, if the master was owner or freigiiter, or acted under the di- 
 rection of the owner, the burthen of proving that fact lay on the 
 defendant. (2) " It was not incumbent on the plaintiff," said Mr. 
 Justice Buller, " to prove that the captain was not the owner, for 
 that would be calling on him to prove a negative; and if the cap- 
 tain were not the owner, it is immaterial who v*'as; proof of that 
 fact, which operates in discharge of the other parly, lies upon 
 him." (Z) 
 
 Plaintiff's en- But although it may lie on the defendant to prove an affirma- 
 
 iir« case to lie tive, vet the plaintiff, if he has notice of the defence, cannot 
 proved. j i 
 
 defer the concluding of his entire case until the affirmative is 
 
 first established. Thus, if the plaintiff bring an action against 
 the defendant for some act done by him, and the defendant plead 
 the general issue, and in bar of the action plead further an , 
 illegal act done by the plaintiff, such as would justify the de- 
 fendant in doing the act which is the subject of the suit, here tlie 
 plaintiff will have to prove the whole of his case in the first in- 
 stance; he ought not only to prove his right of action, but also 
 TreipaBfl. negative the act imputed to him by the defendant's plea. 'J'hus, 
 in the case of Rees v. Smith, (3) which was an action of trespass 
 for breaking into the [)laintiff's house, and seizing his goods, 
 
 (1) Justin. Pand. Lib. 22, Tit. 3. De (2) Ross v. Hunter, 4 T. R. 33, 39. 
 
 Piobationibus, Art. 1, 2. (3) 2 StarUie, N. P. C. SO. 
 
 (&) See Note 368, p. 475. (/) See Note 369, p. 478.
 
 Sect. 4.] Affirmative of Issue Proved. 195 
 
 and t!ie defendant pleaded, besides the general issue, a fraudulent 
 removal of the goods to avoid a distress for rent, the plaintiff' at 
 first only proved the trespass, the defendant then gave evidence in 
 support of his plea, after which the plainiiff's counsel offered gen- 
 eral evidence, to negative the supposition of a fraudulent removal, 
 but Lord Ellenborough rejected the evidence. " The general rule," 
 he said " is, that when the defence is known, by pleading, or by 
 means of notice, the counsel for the plaintiff" is l)Ound to open the 
 whole case in chief, and cannot proceed in parts. If," added 
 Lord Ellenborough, " any one fact be adduced by the defendant, 
 to which an answer can be given, the plaintiff* must have an oppor- 
 tunity given for so doing : but this must be understood of a speci- 
 fic fact: he cannot go into general evidence in reply to the de- 
 fendant's case. There is no instance, in which the plaintiff" is en- 
 litled to go into half his case, and reserve the remainder. "(m) 
 
 And where one party charges another with a culpable omission Charge of 
 or breach of duty, the general rule, above laid down, does not^-^ap- l^'eadiofduty. 
 ply. In such a case, the person who makes the charge is bound 
 to prove it, though it may involve a negative ; for it is one of the 
 first principles of justice, not to presume that a person has acted 
 illegally, till the contrary is proved." (n) Thus, in a suit for Reading thirty 
 tithes in the Spiritual Court, where the defendant pleaded, that the "'""articles, 
 plaintiff had not read the thirty-nine articles, tlie Court called on the 
 defendant to prove the fact, though a negative : upon which, he 
 moved the Court of King's Bench for a prohibition ; but it v/as re- 
 fused, for the reason already slated. (1) In an action by the owner PuttIn<Ton 
 of a ship against the defendants, for putting on board a nuanlitv of l'"^"' '=""'- 
 combustible and dangerous articles, " without giving due notice 
 thereof," the Court held, that it lay upon the plaintiff* to prove this 
 negative averment. (2) (o) In an action, for the recovery of penal- 
 ties, under the hawkers' and pedlers' act, (3) against a person charg- 
 ed with having sold goods by auction, in a |)!ace in whicjj he U'as 
 
 (I) Monke V. Butler, I Roll. Rep. Bull. N. P. r2i)3.) R-?x^ v. CombA, 
 83, cited Iiy Lord Ellenljorough, 3 Comb.'ST. Gilb. Ev. 132. 
 East, 199. 'Powell v. MilibaiiU, 2 (2) VVilli.ini'? v. East India Corrip. 
 
 Black. Rep 851, S. P. 3 VVils. 355, 3 East, 193, 139. Rex v. Hawkins, 
 S. C. See also Lord Halifax's case, 10E:ist, 211. 
 
 (3) St. 29 G 3, c. 26, s. 4. 
 
 (m) Sea Note 370, p. 479. (;i) See Note 371, p 4S3. (o) See Note 372, p. 43P
 
 196 
 
 Affirmative of Issue Proved, 
 
 [Ch. 7. 
 
 Ccvcaant to 
 repair. 
 
 ,^..j 
 
 not a householder, .= :. ro^f of il;!'? nc^ ^i'^e, 
 
 fendant not being a househck... *■ lu ihe place, vvouici '-o necessary 
 on the part of the plaintiff, (p) And in an action of covenant 
 against a lessee, where the breach is, in the language of the cove- 
 nant, that the defendant did not leave the prennises well repaired at 
 the end of the term, the proof of the breach lies upon the plaintiff; 
 this breach, though in terms it involves a negative, admits of as 
 easy proof, as if it had been expressed in the affirmative, (q) 
 
 Prc3ecr.tion 
 for coursing 
 witliout con- 
 Bent. 
 
 On the trial of an indictment on the statute 42 G. 3, c. 107, s. 1, 
 which makes it felony to course deer on an inclosed ground " with- 
 out the consent of the owner of the deer," it ought to appear from 
 the evidence produced on the part of the prosecution, that the 
 owner had not given his consent. According to the report of a 
 late case, (I) it seems to have been thought ncccss'iiy to call the 
 owner of the deer, for the Duroose of disproving his consent ; and 
 th£ owner not being cdled, the jury were directed to find a verdict 
 of acquittal. The particular circumstances of that case are not 
 stated in the report; and it is not easy to discover upon what prin- 
 ciple such evidence was held to be indispensable. If the circum- 
 stances were of such a nature as to raise a reasonable presump- 
 tion, that what had been done had not been done illegally (which, 
 however, it is difficult to conceive,) then, doubtless, the direct evi- 
 dence of the owner would be necessary to repel that presumption, 
 and to establish the charge against the prisoner. But, as a gene- 
 ral proposition, it may be safely laid down, that the non-consent of 
 the owner may be properly inferred from the conduct of the prison- 
 er, and the circumstances under which the act was done, such as 
 the secrecy of the proceedings, the attempt to conceal, the disguise 
 of the prisoner, or his resistance, or any other circumstance of 
 guih; and that the evidence of the owner, to negative the suppo- 
 sition of his consent, is not more strictly necessary to this prosecu- 
 tion than on a charge of larceny, in which it is an essential ingre- 
 dient, that the goods sL'iuild hsve been tr.ken ac,aiiist ihe ownet .i 
 consent; and yet the owner i^; never quesuoned as to '.hixl point, 
 though he is generally called to prove the property, (r) 
 
 (1) R. V. Rogers, 2 Cainpb. 654, Mallinson, 2 Burr. 679. R. v. Corden, 
 by Mr. Justice Lawrence. See R. v. 4 Burr. 2279. 
 
 (p) See Note 373, p. 4S6. (<?) See Note 374, p. 486. (r) See Note 375, p. 487.
 
 "vYl-.ere 'ihj pre.'.ia'ptiDr: oT 1; v; i.-, in Aivor of the defendant's plea, Presumption 
 , . . " . . . of law. 
 
 there it will be incumbent on the plaintiff to disprove the plea, 
 though in so doing he may have to prove a negative, (s) As, in an Bond twenty 
 action on a bond, if the defendant plead payment, and the bond >'®^"<'''l- 
 appears to have been outstanding for twenty years, the law pre- 
 sumes that the principle debt has been discharged; this legal pre- 
 sumption of itself affords a defence, in support of the plea; and, to 
 repel the presumption, it will be necessary for the plaintiff to pro- 
 duce evidence, from which the contrary presumption of non-pay- 
 ment may be inferred; such as evidence of payment of interest, or 
 of an admission of the debt, (t) Where the question is on the le- Legitimacy,, 
 gitimacy of a child, if a legal marriage is proved, the legitimacy is / 
 
 presumed, and the party, who asserts the illegitimacy, ought to 
 prove it: {i-)(u) but if there has been a divorce a mensa el thoro, 
 the presumptioq is, that a child born afterwards (that is, beyond 
 th? tip.;? of j^.?^tntion,) is illegitiinnte; (2) it will be sufficient, 
 therefore, in such a cast; to provo iI:-t civcrcc; and this will call 
 upon the opposite party to establish the legitimacy by proof of ac- 
 cess. («) 
 
 Where the issue is upon the life or death of a person, the proof Death presnm- 
 of the fact lies upon the party who assorts the death, for the pre- ^^' ^^'■^^ ^^^^ 
 
 I 1 • T time, 
 
 sumption IS, that the parly continues alive, until the contrary be 
 
 proved. (3)(tt>) But where no account can be given of the person 2 Bay, 476. 
 this presumption of the duration of life ceases at the expiration 
 of seven years from the time when he was last known to be liv- 
 ing; (4) (a:) a period, which has been fixed, from analogy to the 
 statute of bigamy, (5) and the statute concerning leases determina- 
 ble on lives. (6)* Thus, in the before-cited case ofDoe v. Jesson, 
 
 (1) See ante, p. 158. (4) Doe, dem. George, v. Jesson, 6 
 
 (2) Parishes of St. George and St. East, 80, 85. Doe, dem. Lloyd v. 
 Mar, .::.t, 1 Salk. 123. Der.'.in. 4 Ban). :• Aid. .'34. Roe v. 
 
 i^ii) Thro^.uur-njn v. ■^/falton, 2 Roll. lias!-..;:;!, 1 r.:..c;. -1j4. 
 Rep -IGl. Wiltjcn V. ilovj^a^, 2 East, (a) Ht. :. J 'i,c. ll,s. 2- 
 
 312 (€) St. 19 C. 2, c. 6. 
 
 * The statute of bigamy contains a proviso, that " it shall not e.vtend to any per- 
 son, whose husband or wife shall be continually remaining beyond the seas by the 
 space of seven years together, or whose husband or wif^ shall absent himself or 
 herself, the one from the other, by the space of seven j ears together within the 
 king's dominions, the one of them not knowing the other to he living within that 
 time." It has been held, that the last clause (namely, " the one of them not know- 
 
 (s) See Note 376, p. 487. (i) See Note 377, p. 488. (w) See Note 378, p. 488. 
 (v) See Note 379, p. 488. (w) See Note 880, p. 489. (x) See Note 381, p. 489.
 
 198 
 
 Affirmative of Issue Proved. [Ch. 7. 
 
 wliere it was proved, that a person went to sea at a |)articular 
 time, which was the last account given of him, his death was pre- 
 Plea of cover- sumed at the end of seven years from that time. And therefore, 
 where the defendant pleaded coverture in bar of an action of as- 
 sumpsit, and proved her marriage, and that her husband went 
 abroad twelve years before the commencement of the action, this 
 . was held not to be sufficient, and the defendant was required to 
 prove that iier husband was alive witiiin seven years; (1) without 
 such additional proof, the jury might have presumed the death of 
 the husband at the time of the promise, which would have been 
 against the defendant's plea, (j/) 
 
 Receipt of 
 notes. 
 
 Fact peculiar- It is a general rule of evidence, that the burthen of proof lies 
 ifnovvlcdU of °" ^'^*^ person, who has to support his case by proof of a fact 
 a party. which lies more peculiarly within his own knowledge, or of 
 
 which he is supposed to be cognizant. (2) In an action by the 
 assignees of a bankrupt, where the defendant, under a notice of 
 set-off, gave in evidence promissory notes dated before the bank- 
 ruptcy, the Court held that he ought also to show, that the notes 
 came to his hands before that time. (3) In an action on the 
 game laws, though the plaintiff must aver, in order to bring the 
 Qualification, defendant within the act, that he was not duly qualified; yet it 
 is not not necessary to disprove his qualifications; but it will be for 
 the defendant, if he can, to prove himself qualified. (4) And it 
 has lately been determined by the Court of King's Bench, that 
 the same lule of evidence applies as well to proceedings on in- 
 
 (i) Hopewell V. De Pinna, 2 Camp. (4) By Lord Mansfield, in Spieres v. 
 
 13. Doe, dem. Banning, v. Griffin, 15 Parker, 1 T- Pv.. 144. Duller, J. in 1 T. 
 
 East, 293, stated infra. R. 649 Heatli, J. in Jelfs v. Dullard, 
 
 (2) 4 Barn. & Aid. 140, vid. infra, 1 Boss. & Pull. 46S. Chambre, J in 
 Beet. 6. 9 Price, 257. 5 Maule & Frontine v. Frost, 2 Bos & Pull. 307, 
 Selw. 211. 1 Barn. & Cress. 150. 3 ndin. per Cur. in R. v. Stone, 1 East, 
 Barn. & Cress 242. 650. 
 
 (3) Dickson v. Evans, 1 T. R. 57- 
 See other examples in criminal cases, in 
 2 East, P. C. 782 
 
 ing," &c.) relates only to the second clause, and not to the first respecting commo- 
 rancy beyond the seas: and, consequently, that the second marriage is not feloni- 
 ous, where either of the parties is beyond the seas for seven years, though the par- 
 ty in this country had notice that the other was living. 3 Inst. 8S. 1 Hal. P. C. 692. 
 4 Bl. Com. 164. 
 
 iy) See Note 382, p. 490.
 
 Sect. 4.] Affirmative of Issue Proved. 199 
 
 formations before magistrates, as to actions for penalties; and that 
 a conviction, which specifically negatives the several qualifications 
 mentioned in the statute, is sufficient, without stating evidence to 
 negative those qualifications. (1) If such negative evidence were 
 necessary to support the information, it would scarcely be possible 
 in any case to convict, in consequence of the great number of dis- 
 tinct heads of qualification, which are enumerated in the statute. 
 On the other^^hand, all the qualifications specified are peculiarly 
 vvhhin the knowledge of the qualified person. If he is entitled to 
 any such estate as the statute requires, he may prove it by his title 
 deeds, or by the receipt of the rents and profits; or if he is the son 
 and heir apparent, or servant to any lord or lady of a manor, and 
 appointed to kill game, that will be a good defence. All these 
 qualifications are peculiarly within the knowledge of the parly 
 himself; but the prosecutor has probably no means of proving a 
 disqualification, {z) 
 
 Although, in general, it is necessary for a party, who brings an 
 action, to prove all the material facts, which he alleges in support 
 of his claim, yet where the defendant pleads a fact within his own 
 knowledge in discharge of himself, and the plaintiff still insists on 
 the defendant's liability, alleging the same fact in his replication, 
 there the burthen of the proof lies on the defendant, not upon the 
 plaintiff. Thus, in an action of assumpsit, where the defendant p]ea of in- 
 pleaded infancy, and the plaintiff replied, that " the defendant, af- fancy, 
 ter he had attained his full age, ratified and confirmed the promise 
 and undertaking," the Court held, that the mere proof of a promise 
 to pay was sufficient on the part of the plaintifl"; and that it was 
 for the defendant to prove the personal incapacity to contract, on 
 which he grounded his defence, and which lay so peculiarly within 
 his own knowledge. (2) (a) 
 
 On a trial for bigamy, the register of the first marriage being Pro3. for 
 produced, which stated the marriage to be by licence, without stat- 
 ing it to be by consent of parents or guardians, the prisoner in his 
 defence proved, that he was an infant at the time of the marriage; 
 
 (1) R. V. Turner,' 5 Maale & Sehv. (2) Borthwick v. Carruthers, 1 T. 
 
 206. R. 648. 
 
 (2) See Note 383, p. 490, (a) See Note 384, p. 491.
 
 200 TA- Substance of Issue Proved. [Ch. 7. 
 
 and ii was held, ''...■. wy, on .'-e part of tlje 
 
 prosecution, to give some evidence oi me oaiii^..^ . .-.[ .....j l; the 
 marriage act. (1) Any subsequent countenance given by the pa- 
 rents or guardians, or other circumstances of a similar kiad, might 
 afibrd ground for presuming the necessary consent. (2) (6) 
 
 Sect. V. 
 
 The Substance only of the Issue need be Proved. 
 
 The next general n ic to le ccnsiderecl is, that en any issue it 
 will be sufficient to prove the substance of tha issue. 
 
 It is a general principle of evidence, that all the material facts 
 in the declaration, which are put in issue, must be^established by 
 legal proof, (c) Another principle is, that the nature and extent 
 of the proof will depend upon the manner in which the alleged 
 facts are introduced; allegations, which are merely matters of in- 
 ducements, do not require such strict proof as those which are pre- 
 cisely put in issue between the parties. (3) Evidence, as Lord 
 Mansfield used frequently to observe, is always to be taken with 
 reference to the subjeci matter to which it is applied, and to the 
 person against whom it is used. 
 
 Inducement. 
 
 There are a great variety of examples, both in civil and criminal 
 cases, which might be cited in illustration of the rule now under 
 discussion The object cJ ihe preseni section will be to make a 
 selection of such exar.iijlcs as appear niOst gon^rnllj' iise.'nl. And, 
 afterwards, it will not be foreign to the subject to consider the na- 
 ture of material and immaterial averments, and the doctrine of 
 variances. 
 
 P\t&,tolvitad In an action on a bond, if the defendant plead solvit ad diem, 
 the issue will be maintained by proof of payment before the ap- 
 pointed day; and payment to a third person by the appoint- 
 ment of the plaintiff, will be substantially payment to the plaintiff 
 himself, (d) 
 
 (1) Butler's case, Rnss. & Ry. Cr. (8) By Chambre, J., in 1 New Rep. 
 C. 61. 219. 
 
 (2) lb. in note. 
 
 (6) See Note 385, p. 491. (c) See Note 886, p. 491- (<i) See Note 387, p. 492.
 
 Sect. 5.] The Substance of the Issue Proved, 201 
 
 In an action of waste, for cutting down a certain niniiber of Waste, 
 trees, proof that the defendant cut a sntialler number is sufFicient; 
 for, in effect the issue is waste or no waste. (1) And in on action Cjvenant. 
 of covenant, when the breach assigned is, " that the defendant 
 has not used a farm in a husbandhke manner, but on the con- 
 trary i)as committed waste," &c. to which the defendant pleads, 
 *' that he has not committed waste," &c., but used the farm in a 
 good and husbandhke manner, and issue is taken upon this, the 
 plaintiff cannot give evidence of any unhusbandlike treatment of 
 the farm, not amounting to waste; for the issue is narrowed to 
 this point. (2) 
 
 In an action against a sheriff, where the plaintiff declared, that Action against 
 he had J. S. and his wife in execution, and that the defendant 
 suffered them to escape, and a special verdict was found, that the 
 husband alone was taken in execution (the execution being for a 
 debt du i from the wife before coverture), and that he escaped, tlie 
 Court held, that the substance of the issue was found, and gave 
 judgment for the plaintiff. (3) 
 
 In an action on a simple contract, whether assumpsit or debt, the Assumpsit, 
 plaintiff may prove and recover a less sum than he has demanded 
 in the writ; and for this reason, it hss been held, that a declara- 
 tion in such action is not bad for specifying a less sum, though 
 the breach assigned is the non-payment of the whole sum de- 
 manded. (4) (e) 
 
 In actions for slander, the courts used at one time to hold, that Action for 
 , I • ■ rr- 1 I -1 1 • I slander. 
 
 the planitin was bound to prove tlje words spoken precisely as Jaid; 
 
 but it is now settled that it will be sufficient, if the plaintiff prove 
 some material part of the words alleged on the record. If the dec- 
 laration contain several actionable words, the plaintiff will be enti- 
 tled to a verdict on proving some of them. (5) (/) 
 
 In an action of replevin, where the defendant avowed taking Replevin, 
 the cattle as damage-feasant, the plaintiff pleaded in bar, that one 
 
 (1) Co. Liu. 2S2, a. 2 l{o!l. Abr. (4) M'auillin v. Cov, 1 H. Bl. 249. 
 706, lit. Verdict, C. 40. Holinrt, 53. (5) Conipiignon v. Martin, 2 Bl. Rep. 
 
 (2) HariU V. M;i!U!e, .S T. R. .307. 790. See vol. ii. Action for fclan- 
 
 (3) Roberts and wife v. Herbert, 1 der. 
 Sid. 5, S. C. cited Bull. N- P. 299. 
 
 (c) Seo Note 3S8, p. 493. (/) See Nolo 39S, p. 494. 
 
 Vol. I. 26
 
 202 The Substance of Issue Proved. [Cli. 7. 
 
 W. was seised of a house and land, &c., wliereto he had common, 
 &c., and demised the same to him to hold from a certain day next 
 before for a year; the avowant traversed the lease modo el forma^ 
 upon which issue was taken; (he jury found a special verdict, that 
 W. made a lease to the plaintifFon the day stated, for a year; and 
 the plaintiff had judgment, for allhougli ihis is not the same lease 
 as pleaded (since this hegins on the day and the oilier not so soon), 
 yet the Court said, the substance of the issue is, whether or not 
 the plaintiff had such a lease, as by force thel'eof he might have 
 common at the time, and this appeared to be the case here. (l)(g") 
 
 If the issue joined between the parties is, whether A. & B. were 
 
 church-wardens, proof that one was, and not the other, would not 
 
 Action for ^^ sufficient. (2) So, where the declaration averred, that the plain- 
 assault. _ . . 
 
 tiff was constable of a particular parish, and that he was assauhed 
 
 Constable's in the execution of his office as constable, and it appeared on the 
 
 evidence, that he had been sworn in to serve for a whole liberty, 
 
 of which the parish formed a part, this was held to be a material 
 
 variance. (3) 
 
 Plea of tender. If the plaintiff reply, to a plea of tender, that, before the cause 
 of action and after the tender, he demanded the sum tendered, he 
 will be obliged to prove, under the issue joined upon this leplica- 
 tion, a demand of that specific sum. The proof of a demand of a 
 larger sum would not support the issue. (4) 
 
 criminal '^^'^ same general rule of evidence applies, if possible, siill more 
 
 cases. strongly to the case of criminal prosecutions than to civil suits. It 
 
 is an universal principle, which runs through the whole of the crim- 
 inal law, that it will be sufficient to i)iove so much of the indict- 
 ment, as charges the defendant with a substantive ciime. If the 
 indictment chaiges, that the defendant did, and caused to he done, 
 a particular act, it is enough to prove either the one or the oth- 
 Pros. for libel, er. If the defendant is charged with coaiposing, printing, and 
 
 (l)Popev. Skinner, Hob. 72, S. C. 2SI. 
 
 cited Bull. N. P. 300. Forty v. Imber, (4) P»ivers v. Griffiths, 5 Bnrn. & 
 
 6 East, 434. Aid. 630. Spybey v. Hide, 1 Campb. 
 
 (2) Bull. N. P. 299. 181. 
 
 (3) Goodes v. Whcatley, 1 Campb. 
 
 (S) Fee Note 3S0, p. 494.
 
 Sect. 5.] The Substance of Issue Proved. 203 
 
 publishing a libel, he may be convicted only of the printing and 
 publishing. (1) 
 
 On an indictment for obtaining money under false pretences, it False pre- 
 is not necessary to prove the whole of the pretence chai-ged : proof 
 of part of the pretence, and that the money was obtained by such 
 p.'irt, is sufficient. (2) (/t) 
 
 On a charge of petit treason, if the kiUing with malice is proved, Petit treason, 
 but no circumstances of aggravation are proved to make the of- 
 fence treasonable, the prisoner may be found guilty of the mur- 
 der. (3) On an indictment for burglary and stealing goods, if it Burglary, 
 appear that no burglary was committed, as where the breaking 
 and entering were not in the night — or on a charge of robbery, j^obbery. 
 where the properly was not taken from the person by violence, or 
 by putting him in fear — the prisoner may be found guilty only of 
 the simple larceny. (4) 
 
 On the trial of an indictment for murder, the jury may find the Murder, 
 prisoner guilty of manslaughter only; for the principal matter is 
 ihe killing, and the malice is only a circumstance in aggrava- 
 tion. (5) And if the manner or means of the death, proved at the Manner of 
 trial, agree in substance vviili the means charged in the indict- ^^ 
 tnent, it will be sufficient ; as, where the indictment is for killing 
 with a dagger, and the evidence prove a killing with a staff; (6) or 
 if the indictment be for killing with one sort of poison, and the ev- 
 idence proves the killing with another ; such evidence maintains 
 the indictment, because the proof of the instrument is not absolute- 
 ly necessary to the proof of the fact itself; (6) but if the charge is 
 for poisoning, and the death is proved to have been caused by 
 striking or starving, &c., this evidence would not support the in- 
 dictment, as the species of death in the one case is totally differ- 
 ent from that in the other. (7) 
 
 (1) R.V.Hunt, 2 Campb. 583. R. (5) Mackalley's case, 9 Rep. 67, b. 
 V. Williams, ib 646. See also cases Co. Litt. 282, a. Glib. Ev. 233. 
 
 in 2 East, P. C. 515. 516. (6) 9 Rep. 67, a. Gilb. Ev. 231. 
 
 (2) Hill's case, Russ & Ry. Cr. C. 1 East, P. C. 311. Rex. v. Clark, 1 
 190. Bred. & Bing. 473. 
 
 (3) Case of Swan and Jefferys, (7) 9 Rep. 67, a. Gilb. Ev. 231. 
 Fost. Cr. L. 104. 1 East, P. C. 341. 2 Inst. 319. 
 
 (4) 2 East, P. C. 513, 515, 516. 
 
 (A) See Note 39 1, p. 495.
 
 204 The Substance of Issue Proved [C!i. 7. 
 
 Principal. If the iivJictnient ciiarges that A. gave ihe mortal blow, and 
 
 thai B, and C were present, aiding and abetting, &€., but on the 
 evidence it appears that B. struck, and that A. & C. were present, 
 aiding, &c., this is not a material variance, for the stroke is ad- 
 judged in law to be the stroke of every one of them, and is as 
 strongly the act of the others, as if they all three had held ihs 
 weapon, and had all together struck the deceased. (1) 'J'he iden- 
 tity of the person, supposed to have given the stroke, says Mr. 
 Justice Foster, is but a circumstance, and in this case a very im- 
 material one. 'ihe stroke of one is, in consideration of law, and 
 in sound reason too, the stroke of all. They are all principals in 
 law, and principals in deed, (t) 
 
 Accessory. If two persons are indicted as principals, and one is proved to 
 
 be only accessory, he rrnisi be discharged on this indictment, (2) 
 for in consideration of law their offences are quite different, {j) 
 And one indicted as accessory before the fact cannot be convicted 
 upon evidence proving him to have been (principal in the second 
 degree) present, aiding and abetting, at the fact. (3) 
 
 Murder of of- In Mackalley's case, (4) where the prisoner was tried for the mur- 
 tion of his of- ^'^'' ^^ ^ Serjeant at mace in London, the indictment charged, that 
 fice. the sheriff made a precept to the serjeant for the arrest, and it ap- 
 
 peared upon the evidence, that there was no such precept, but that 
 the Serjeant made the arrest ex officio at the plaintiff's request, on 
 the entry of the plaint according to the custom of the city ; and all 
 the judges held, that the variance between the indictment and the 
 evidence was not material, because the warrant to arrest was only 
 a circumstance, and the substance of the matter had been found, 
 wl)ich was, that the prisoner killed an officer in the lawful execu- 
 tion of legal process, (k) The Judges were also of opinion, that the 
 indictment might have been general, (that the prisoner feloniously 
 and of his malice prepense killed, &c.) and that the special matter 
 might have been given in evidence; and since the indictment in 
 the principal case contained such an averment, they held that the 
 
 (1) Mncknlley'a case, 9 Rep. 67, p. (2) Gilb. Ev. 232. See Fost. Cr. 
 
 1 Plowd. 93. Willis' case, 1 Salk. L. 361. 
 
 334. Fost. Disc. 351. Tovvle's case, (3) Gordon's case, 1 East, P. C. 
 on St. 43 G. 3. c 58. 3 Price, 145. 352. 
 
 2 Marsli. 466, S. C. (4) 9 Rep. 61, b. 67, a. 68, a. 
 
 (i) See Note 392, p. 496. (; ) Seo Note 393, p. 496. (/c) See Note 394, p. 496.
 
 Sect. 6. J The Substance of Issue Proved. 205 
 
 chnrge of murder had been proved, nolwiilistanding that the spc- ^*'""'"'^*'- 
 
 cial matter, given in evidence, might vary in substance from the 
 special matter contained in tlie indictment. (/) 
 
 A p^reat variety of cases occurs in the books with' respect to the Averments 
 
 ° . . • I 1- T -1 nialerial. 
 
 necessity of proving averments in pleading. immaterial aver- 
 ments need not be proved. It is a general rule, that a variance Variance. 
 between the allegation and the proof will not defeat a p;irty, un- 
 less it be in respect of matter which, if pleaded, would be ma- 
 terial. (1) If the variance be in respect of a mat'.er not essential 
 to maintain the action or the plea, it is of no importance. In an 
 action upon a bill of exchange, when the declaration stated the 
 bill to have been excepted and indorsed before it became due, and 
 the proof was, that it was indorsed after it became due, the Court 
 iield it was no variance; because it was immaterial, whether the 
 bill was indorsed before or after it became due; and therefore it 
 was unnecessary to prove the indorsement precisely at the time 
 when it was alleged. (2) (m) 
 
 The general rule of pleading in cases of tort is, that it is suffi- In tort, 
 cient, if j)art only of the allegation slated in the declaration be 
 proved, provided that what is proved affords a ground for maintain- 
 ing the action, supposing it to have been correctly stated as prov- 
 ed. There is one exception, however, to this rule, which is, when 
 the allegation contains matter of description. There, if the proof 
 given be different from the statement, the variance is fatal. (3) 
 
 It is quite enough in cases of tort, if the same ground of action In contractor 
 I -i-j-.ji • 11 1 1 prescription. 
 
 IS proved as is Jaid m the declaration, although not to the extent 
 
 there stated. In the cases of contract and prescription, it is 
 different, for in the former, if all that is stated in the decla- 
 ration be not proved, it is a proof of a different contract, and a 
 different ground of action; the party therefore cannot be entitled 
 to the judgment of the court. In the latter case, when a pre- 
 
 (l)3Barn. & Ciess. 122, by Lord (3)2 Barn. & Aid. 363, by Lord 
 Tenterden, Cb. J. Tenterden. 4 Barn. & Cress. 385. 
 
 (2) Young V. Wright, 1 Campb. 139. 
 
 (/) See Note 395, p. 497. (m) See Note 396, p. 501.
 
 206 
 
 Variance. 
 
 The Substance of Issue Proved. [Ch. 7. 
 
 scii|iiion is alleged in bar, it is an entire thing, and must- be prov- 
 ed to the extent laid. (1) 
 
 Inducement. An averment, which is merely matter of inducement to the ac- 
 
 tion, need not be proved with the utmost strictness and precis- 
 ion. Thus where an action was brought to recover double the val- 
 ue of goods, which had been removed for the purpose of prevent- 
 ing a distress, and the declaration stated a certain sum to be in ar- 
 rcar for rent, it was decided that the plaintiff was entitled to recov- 
 er, although the notice of distress was for a less sum. (2) Here, 
 whether the particular sum stated in the declaration was in arrear, 
 must be perfectly immaterial; the damages were not to be meas- 
 ured by the quantity of rent, but by the value of tlie goods, which 
 had been removed, (n) 
 
 Where aver- If an averment may be struck out without destroying liie plain- 
 
 ment may be (iff'g ,-ig|)t of action, it will not be necessary to prove it; but it is 
 struck out. , . .. , , , . , 
 
 Otherwise, ii tlie averment cannot be struck out without getting 
 
 rid of a part essential to a cause of action: for then, though the 
 averment be more particular than it need have been, the whole 
 must be proved, or the plaintiff cannot recover. (3) Thus, in the 
 case of Bristow v. Wright, (4) which was an action against the 
 sheriff for taking the goods of a lodger without leaving a year's rent, 
 the declaration stated some particulars of the demise relative to 
 the time of [)ayment of rent, which were negatived by the evi- 
 dence, and the Court held that the variance was fatal. There, it 
 was necessary for the plaintiff, in order to sliow that he was land- 
 lord, to set forth a contract between himself and the tenant, and 
 no part of the contract alleged could be struck out, because it was 
 in its nature entire: though it was admitted, that the 'part of the 
 contract, relating to the lime of jjayment, need not have been aver- 
 red, (o) 
 
 The case of Williamson v. Allison (5) illustrates the other 
 part of the rule, namely, that where an averment may be struck 
 
 (1) 2 Barn. & Aid. 366. (4) 2 Doug. 664. See 5 T. R. 496. 
 
 (2) Gwinnet v. Phillips, 3 T. R. 643. 2 East, 4.50, 452. S East, 9. 
 
 See another instance ill Stoddart V. Pal- (5) 2 East, 446. See also Peppin v. 
 
 mer, 3 Barn & Cress. 2, stated infra. Solomon, 5 T. R. 496. Broomfield v. 
 
 (3) By Lawrence, J. iu Williamson v. Jones, 4 Barn. & Cress. 380. 
 Allison, 11 East, 4.52. 
 
 (n) See Note 397, p. 501. (o) See Note 398, p. 503.
 
 Sect, o.] The Substance of Issue Proved. 207 
 
 out, it need not be proved. That was an action on the case in Variance in 
 
 tort, for the breach of a warranty in selling goods unfit for sale, ' 
 
 and the declaration averred, that the defendant knew the goods 
 to be in an unfit state, of which fact there was no evidence at the 
 trial; but the Court held, that such proof was unnecessary, for 
 if the whole- averment respecting the defendant's knowledge of the 
 unfitness for sale were struck out, the declaration would still be 
 suflicient to entitle the plaintiff to recover upon the breach of the 
 warranty proved, {p) 
 
 The same rule is applicable to averments in an indictment. If Indictment, 
 an averment may be entirely omitted, v/ithout affecting the charge 
 against the prisoner, and without detriment to the indictment, it 
 will be considered as surplusage, and may be disregarded in evi- 
 dence. Thus where tlie prisoner was charged with robbery near Robbery, 
 the highway, and the robbery was proved, but not near the high- 
 way, (1) — where the robbery was averred to have been committed 
 in the house of a certain person named, and the name of the own- 
 er was not proved, (2) — and where the offence of arson was stated Arson, 
 in the indictment to have been committed in the night-time, and 
 was proved not to have been in the night-time, (3) — in thesecases, 
 all the Judges were of opinion, that the convictions were proper, 
 and the prisoners were ousted of the benefit of clergy. But where 
 the averment in the indictment is sensible and material, it ought to 
 be regularly j)roved; as, where tlie prisoner was indicted for a bur- Burglary, 
 ghuy in ilie house of J. D. with intent to steal the goods of J. W., 
 and it appeared in evidence that no such person had any goods in 
 the house, but that the name of J. W. was put by nsistake for J. 
 D., (4) tile Judges held, that it was material to stale truly the pro- 
 perly of the goods, and on account of this variance the prisoner was 
 acquitted, (q) 
 
 Wliere ihe action is brought upon a contract, the contract Varinnce in 
 ought to be slated correctly, and proved as laid; and if any part *^°""^'^'' 
 of the contract proved, vary materially from that stated in the 
 
 (1) Wardle's case. 2 East, P. C. (3) Minton's case, 2 East, P. C. 
 785. Russ. & Ry. Cr. C 9,S C. 1021. 
 
 (2) Pye'.s case, .rohiislor.o's case, (4) Jenk's case, 2 East, P. C. 514. 
 2 East, P. C. 7S.'). Russ. & Ry. Ci. 
 
 C. 9, S. C. 
 
 ip) See Note 399, p. 505. (q) See Note 400, p. 503.
 
 tort. 
 
 208 Tlie Substance of Issue Proved. [Ch. 7. 
 
 Variance in pleadings, the whole foundation of the action fails, since the con- 
 
 ''°""""'^ ^" tract is entire and indivisible. (1) If the contract, therefore, for 
 
 the breach of which the action is brought, wns in the alternative, 
 at the option of the defendant, (as to deliver this or that qoantiiy of 
 goods at one time, and the remainder at another,) it ought to be so 
 stated, for if the declaration states an absolute contract, and the 
 proof is of a contract in the alternative, the plaintifl' cannot recov- 
 er, although the defendant may have determined his option. (2) 
 In an action against a carrier, on a general undertaking to carry 
 safely, proof of a contract, to carry safely, (Qre and robbery except- 
 ed,) is a variance. (S) (r) 
 
 Contract Stat- This rule is not confined to actions of assumpsit. In an action 
 ed in action of ^j- ^^^.^ ^j^^^ where the contract is necessary to be slated in order to 
 maintain the ground of action as laid in the record, the contract 
 ought to be pi'oved as stated. Thus in an action against two de- 
 fendants for deceit, charged in the declaration to have been com- 
 mitted by them in a joint sale of their joint properly, the Court of 
 King's Bench held, as there was no evidence against one of the 
 defendants, that the action could not be maintained against the 
 other. (4) The joint contract here described, said Lord Ellenbo- 
 rough, in delivering the judgment of the Court, is the foundation 
 of the joint warranty laid in the declaration, and essential to its 
 legal existence and validity; and it is a rule of I nv, that the proof 
 of the contract must correspond with the description of it in all ma- 
 terial respects, (s) 
 
 (1) 1 T. R. 240; 3 T. R. 645. v. Rule, 3 Bing. 315 — The following 
 The following are llie princip.il mod- are c.iscs on promissory notes and 
 ern rases on this subject; Bristow v. bills of exchange. VVhilwell v. Ben- 
 Wright, 2 Dong, (;fi4,'(supra, p. 206, net, 3 Bos. & Pull. 559. Gordon v. 
 S. C.) Carlisle v. Trears, Cowp. 67t. Austin. 4 T. R 611. Johnson v. 
 Churchill V. Wilkins, 1 T. R 447. Mars, 2 Camp. S()3. Roche v. Carnp- 
 Durston V. Tuthan, cited 3 T. R. 67. hell, 3 Camph. 247. Hodge v. Fillis, 
 Littler v. Holland, 3 T. R. 5i)0. 3 Cairiph. 463 Hutchinson v. Piper, 
 Hockin V. CooUe, 4 T. R. 414. Leery 4 Taunton, 810. E.\on v. Russell, 
 V. Goodson, 4 T. R. 6S7. White v. 4 Maule & Sel. 505. Mountstephen 
 Wilson, 2 Bos. & Pull 116 Per ny v. Brooke, 1 Barn. & Aid. 224. 
 V. Porter, 2 F.ast, 2. Brown v. Sayce, (2^ Penny v. Porter, 2 East, 2; and 
 4 Taunlon, 320. Pool v. Court, 4 see 2 Eist,' 134; Cooke v. ftlunstone, 
 Taunton, 700. Cohen v. Ilannam, 1 Bos. & Pull. N. R. 35 1. 
 6 Tauulon, 101. Arnfield v. Bate, 3 (3) Latham v. Rulley, 2 Barn. & 
 Maule & Sel. 173 gquire v. Hunt, Cre^.s. 20. 
 
 3 Price, 68. Wildman v. Glossop, I (4) Wcall v. King, 12 East, 452 
 
 Barn. &. Aid. 9. Tucker v. Cracklin, Green v. Greenhank, 2 Marsh. 4S5. 
 
 2 Slarkie, N. P. C 3S5. Parker v. Lope.^ v. De Ta=ter, I Brod. & Bing. 
 
 Palmer, 4 Barn. & Aid. 3S7. Strong 528. 
 
 (r) See Note 401 , p. 509. (s) See Note 402, p. 514.
 
 Sect. 5.] The Substance of Issue Proved. 209 
 
 It will not be necessary for the plaintiff to state all the several Vanance in 
 
 , •' . ' , _ contract. 
 
 parts of a contract, which consists of distinct and collateral pro- 
 
 visions; but it is sufficient to state so much of the contract as con- conuact^need 
 tains the entire consideration for the act, and the entire act to be be stated. 
 done in virtue of such consideration, including the time, manner 
 and other circumstances of its performance, (1) Thus, if there is 
 a provision in the contract to discharge the party from all liability, 
 in case a particular condition is not complied with, it ought to be 
 set out and strictly proved: but it is otlierwise, where the provis- 
 ion respects only the liquidation of damages on a breach of the 
 contract; such a provision need not be stated in the pleadings. (I) 
 In an action on the case upon the warranty of a horse, if the plain- 
 tiff states truly the whole of the consideration for the promise of 
 the defendant, (which, in the case referred to, was the re-delivery 
 of the horse to the defendant,) and then states truly the substan- 
 tive parts of the warranty, of the breach of which he complains, 
 this will be sufficient, without averring other parts of the warranty 
 entirely collateral and irrelevant to those stated. (2) In the case 
 of Gladstone v. Neale, (3) the contract stated for the purchase 
 of a certain quantity of goods, (" to wit, eight tons," and the con- 
 tract proved was for the purchase of " about S tons," the exact 
 amount not being known at the time of making the contract, but 
 being ascertained before the action was brought; and it was de- 
 termined at the trial, and afterwards by the court of King's Bench, 
 that the variance was not material, (t) 
 
 In all cases of joint contracts, in writing or by parol, or ex quasi 
 
 Joint con- 
 tracts. 
 
 contractu, and in all cases of joint obligation, it seems now to be 
 settled, that if one only be sued, he may plead the matter in abate- 
 ment, but cannot take advantage of it afterwards upon any other 
 plea, or in arrest of judgment, or give it in evidence under the gen- 
 eral issue. Thus, in an action against the defendant as drawer of Rule as to 
 a bill of exchange, who pleaded non assumpsit, and it appeared in P^'''y ^"«^- 
 evidence at the trial, that the bill was drawn by the defendant and 
 
 (1) Clarke v. Gray, 6 East, 564, v. Hunt, 3 Price, 68. Hanford v Pa!- 
 569. Thornton V. Jones, 2 Marsh. Kep. mer, 2 Brod. & riing. 359. See Blyth 
 287. Parker V. Palmer, 4 Barn. Si Aid. v. Banipton, 3 Bing. 472. 
 
 387. (3) 13 East, 410. Crispin v. VVil- 
 
 (2) Miles V. Sheward, 8 East, 7. liamson, 8 Taunt. 107. 
 Cotterill V. CufF, 4 Taunt. 285. Squier 
 
 (0 See Note 403, p. 515. 
 
 Vol. I. 27
 
 210 
 
 The Substance of Issue Proved. 
 
 [Ch. 7. 
 
 Variance in 
 contract. 
 
 Rnle as to 
 party tuing. 
 
 another jointly; on a motion to set aside the verdict (which had 
 been found for the plaintilT,) upon the ground of this supposed va- 
 riance, the court of exchequer was clearly of opinion, that there 
 was no variance between the bill of exchange proved, and that 
 which was declared upon. (1) The same rule holds, when the 
 action is brought against one of several partners; the defendant 
 must plead in abatement, and cannot give the partnership in evi- 
 dence under the general issue. (2) Formerly, a different rule was 
 adopted, on the ground of a supposed variance. (3) But with re- 
 spect to the party suing, the rule is still the same; namely, that if 
 an action of assumpsit is brought by one only of several parties to 
 a contract, who ougiu to join, the defendant may take advantage 
 of it upon the general issue of non assumpsit. (4) (m) 
 
 Rule as to A distinction, however, has been made, in this respect, between 
 
 joinderm torts, actions of assumpsit and actions of tort; and, in the latter case, if 
 one only of several persons, who ought to join, bring the action, 
 the defendant cannot avail himself of the variance under the gen- 
 eral issue, but must plead it in abatement. (5) 'inhere is a distinc- 
 tion also between these forms of action, with respect to the party 
 sued. For if several persons jointly commit a tort, the plaintiff has 
 his election to sue all or any nunjber of the parties, a tort being in 
 its nature the separate act of each individual; and, therefore, in 
 actions ex delicto against one only, (such as trover, trespass, case 
 for malfeasance, and the like,) for a tort committed by several, the 
 defendant cannot plead such matter in abatement or in bar, nor 
 give it in evidence on the general issue. (6) (y) 
 
 ^'ioUon. ^^^^ '""'^ above laid down with respect to contracts applies 
 
 equally to the case of a prescription : a prescriptive right is one 
 
 (1) F.vnns v. Lewis, MS. case re- 
 ported in Rlr. Serjt. Williams' edit, of 
 Saund. 1 V. 291,d. Germain v. Frcd- 
 ericl:, MS. case, ib. Rocs v. Abbolt, 
 Cowp. 8S2. Powell v. Laylon, 2 
 New Rep. 3C5. 
 
 (2) Rice V. Shute, 5 Burr. 2611. 
 Abbott V. Smith, 2 Black. 947. 1 
 Eos. & Pul. 72. 
 
 (3) Eoson V. Sand ford, 2 SalU. -140. 
 
 (4) Lcglise V. Champante, 2 Str. 
 
 820. Graham v. Robertson, 2 T. R. 
 282. 1 Saund. 291, /. in note. Teed 
 V. Elworlby, 14 East, 210. 
 
 (5) Doc!a\ray v Dickenson, Siiiii. 
 G40 Leslise v. Champante. 2 Str. 
 S20. Addison v. Ovnrend, 6 T. R. 
 760. Sidgworlh v. Overend, 7 T. R. 
 279. Blo.xiiani v. Hubbard, 5 East, 
 420. 
 
 (6) Boson V. Sandford, 1 Show. 
 29. Mitchell v. Tarbutt, 5 T. R. G51. 
 
 («) See Note 404, p. 515. (i) See Note 406, p. 517.
 
 Sect. 5.] Tlie Substance of Issue Proved. 21 1 
 
 entire thing, and, when put in issue, must be proved as stated. Variance jq 
 It ought to be proved, therefore, to the full extent, to which it is 
 
 claimed. Thus, in replevin, if the defendant avow taking the 
 cattle as damage feasant, and the plaintift' plead in bar a right of 
 common, and aver that the cattle were levant and couchant, on 
 which averment issue is joined, proof only for part of the cattle 
 will not be sufficient, for (he issue is upon the whole. (1) But Proof of more 
 though the party must prove a prescriptive right commensurate ^'"P° "^'S '• 
 with the right claimed, he will not be precluded from recovering, 
 because he proves a more ample right than what he claims. Evi- 
 dence of a right of common for sheep and cows will support a plea 
 prescribing for common only for sheep. (2) 
 
 A distinction is to be made between the case of a prescriptive Plea in bar. 
 right of common alleged in bar, on which issue is taken, and a pos- 
 sessory right of common claimed in an action of tort for disturb- 
 ance of the rio;ht. In the latter case, it is sufficient to prove the 
 
 I r • • 1 • 1 ■ 1 11 ■ II I Action for dis- 
 
 same ground oi action as is laid m the declaration, although not to turbance. 
 
 the extent there stated. If the allegation is, that the i)laintiff was 
 entitled to tlie right of common in respect of a certain quantity of 
 land, and the proof is in respect of a part only of that land, it will 
 be sufficient ;(o) so if it is claimed in respect of a messuage and a 
 certain number of acres of land, and proved to be in respect only 
 of land. (4) The proof, in these cases, is not of a different alle- 
 gation, but of the same allegation in part ; and that is suffi- 
 cient. (5)(u)) 
 
 Where a deed is declared upon, and it appears, on comparing Variance in 
 and reading the record with the instrument produced, that some P''°°''°*" *^'^^''- 
 of the words, stated in the pleadings as descriptive of the deed. Description, 
 (and which cannot be rejected as surplusage, vary from the 
 
 (1) Slopcrv. Alien, 2 Roll. Ab. 706, (3) Yarley v. Turnock, Cro. Jac. ' 
 tit. Trial, c. 41, S. C. cited Bull. N. 629. P.ilmer, 269, S. C. 2 Barn. &. 
 P. 299. Gray's case, 5 Rep. 79. Aid. 3C6. 
 
 Down's caso, 4 Rep. 29, b. Rogers v. (4) Ricketts v. Salwey, 2 Barn. & 
 
 .Mien, 1 Campb. 313. See Brook v. Aid- 360. Manifold v. Pennington, 
 
 WiileU, 2 II. Blacic. 224. 4 Barn. & Cress. 161. 
 
 (2) Bushwood V. Bond. Cro Eiiz. (5) 2 Barn. & Aid. 366. 
 722. Bailiff, ■kc. of Tewksbury v. 
 
 Bricknell, 1 Taunt. 142. West v. An- 
 drews, 6 Barn. & Aid. 77. 
 
 Cu') Seo Note 406, p. 51S.
 
 212 The Substance of Issue Proved. [Ch. 7. 
 
 Varianco in tJeed, the variance will be fatal ; (1) and though some parts of the 
 
 "' deed, which the declaration puriiorts to set out at length, need not 
 
 have been stated at all, or might have been stated shortly, accord- 
 ing to their legal effect and operation, (2) yet, if they are set out 
 at length and descriptive of the deed, they ought to be proved as 
 laid, and in case of a variance the plaintiff will fail. A qualified 
 covenant ought to be stated with all its qualifications ; if it is set 
 out in the declaration as a general covenant, and on reading the 
 deed in evidence it appears to be subject to an exception or limita- 
 tion, the variance will be fatal. (3) 
 
 Deed stated in If the declaration does not profess to describe a deed or to 
 set it out according to its tenor, but states it correctly in substance 
 and in its legal effect, a variance will be immaterial. In an action 
 against a tenant for breach of covenant, proof of a lease from the 
 plaintiff and his wife to the defendant will support an averment of 
 a lease from the plaintiff alone, at least, where the wife had only a 
 chattel interest in the lands before marriage, or they are the prop- 
 erty of the husband ; for the covenants made to husband and wife 
 may, in legal effect, be deemed covenants made to the husband 
 alone. (4) So bonds and promissory notes, given to the wife, may 
 be declared upon, as having been given to the husband, in a suit 
 by him. (5) 
 
 Variance in A similar rule has been laid down, where a record is referred to 
 
 proof of re- j^^ ^j^g pleadings. Whatever may have been the rule upon this 
 subject in ancient times, a distinction is now established be- 
 tween allegations of matter of substance, and allegations of matter 
 
 (1) The following are the principal Bing. 395. Arnold v. Revoult, 1 Bred. 
 
 modern cases on this subject : — Sands & Bing. 443. 
 
 V. Ledger, 2 Ld. Raym. 792. Pitt v. (2) Dundas v. Lord Weymouth, 
 
 Green, 9 East, 188. Bovvditch v. Cowp. 665- Price v. Fletcher, Cowp. 
 
 Mawley, 1 Campb. 195. Ilowell v. 727. Koulston v. Clarke, 2 H. Bl. 
 
 Richards, 11 East, 633. Waugh v. 6fi3. 
 
 Russell, 5 Taunt. 707- Tempany v. (3) Howell v. Richards, 11 East, 
 
 Bernard, 4 Campb. 20. Ricrgaa v. 633. Tempany v. Bernard, 4 Campb. 
 
 Edwards, 2 Marshall, 96. Hoar v. 20. 
 
 Mill, 4 Maule & Selw. 470. Weeks (4) Arnold v. Rivoult, 1 Brod. & 
 
 V. Maillardet, 14 East, 568. Gordon Bing. 442- Beaver, v. Lane, 2 Mod. 
 
 V. Gordon, 1 Starkie, N. P. C. 294. 217, S. P. 
 
 Horsefall v. Testar, 7 Taunt. 385. (5) 1 B- & B. 442. Antrenlem v. 
 
 Cartridge v. Griffiths, 1 Barn. &. Aid. Clarke, 4 T. R. 616. In this case the 
 
 57. Swallow V. Beaumont, 2 Barn. & bond was given to th» husband and 
 
 Aid. 765. Brown v. Knill, 2 Brod. &, wife as admiuistratrix.
 
 Sect. 5.] The Substance of Issue Proved. 213 
 
 of description. The former require to be substantially proved: Variance in re 
 the latter must be literally proved. (1) 
 
 If the allegation is descriptive of the record, it ought to be Allegations of 
 strictly and literally proved, as laid. Thus, in the case of Green "'^''^^ ^'"'*- 
 V. Rennett, (2), where a writ was described in terms, when sued 
 out and when returnable, and, on the production of the writ it- 
 self, it appeared to be returnable on a different day from that 
 stated in the declaration, the Court held that the variance was 
 fatal, though the day of the return was laid under a videlicet.* 
 In this case the return-day was material, because it was a part of 
 the description of the writ stated, which could only be proved by a 
 writ returnable on the same day. 
 
 But where the pleadings do not undertake to set out the tenor Allegations of 
 of the record, and the substance only of the record is stated, s«^«'«n". 
 there a variance between the allegation and the record will not 
 be fatal, provided the allegation is substantially proved. Thus 
 in the case of the King v. Lockup, on a prosecution for perjury, 
 where the objection was, that the indictment stated a bill in 
 Chancery to be directed to Robert Lord Henley, &c., and it ap- Direction of 
 peared in evidence to have been directed to Sir Robert Hen- '"'^■ 
 
 (1) By Abbott C. J., 3 Barn. & v. Leefe, 2 Campb. 141. Woodford v. 
 Cress. 4. Ashley, 2 Campb. 193. R. v. Bellamy, 
 
 (2) 1 T. R. 656. 9 East, 161, 163. 1 Ry. & Mo- 171. Sheldon v. Whitaker, 
 Brown V. Jacobs, 2 Esp. N. P. C. 726. 1 Ry. &, Mo. 266. Be van v. Jones, 4 
 R. V. Taylor, 1 Campb. 404. See also Barn. & Cress. 403. Edwards v. Lucas, 
 Com. Dig. tit. Record, (C), (D). R. 5 Barn. & Cress. 339. 
 
 * Where the circum."=tance averred in the pleadings (as of a particular sum Effect of 
 or day) is material, the addition of a videlicet will not render the averment videlicet. 
 immaterial, (Grimvvood v. Barrit, 6 T. R 460, 463;) though the omission of 
 a videlicet may in some cases make an averment material, which, if a videlicet 
 had been inserted, would not have been so. (Symmons v. Knox, 3 T. R. 65, 
 6S. Crispin V. Williamson, 8 Taunt. 112.) If therefore the day, laid in the 
 declaration, be material, it must be proved, nolvvilhstanding that it is laid 
 under a videlicet. It is by no means generally true, that the omission of a 
 videlicet will make it necessary to prove the particular sum or day, &c. strictly 
 as laid. Some cases have been already mentioned, where a variance in the 
 proof of such circumstances has been adjudged to be immaterial. It will be 
 sufficient to add one other example. On an indictment for stealing goods in 
 a dwelling-house, under the statute of 12 Ann. st. 1, c. 7, it is not necessary to 
 prove, that the goods were of greater value than 40s., though that should he 
 averred in the indictment without a videlicet. And see R. v- Burdct, 1 Ld. 
 Raym. 149. R. v. Gilham, 6 T. R. 266. Gwinnett v. Philips, 3 T. R. 643, and 
 2 Campb. 231.
 
 2U 
 
 The Substance of Issue Proved. [Ch. 7. 
 
 yariancQ In ley, Kniglit, &.C., ilie Court overruled the objection, and held 
 ""^' it to be sufficient, that the complainant had preferred a bill be- 
 
 lore the person who held the great seal, by whichever title he 
 
 was styled. (1) 
 
 Date of ac- 
 quittal. 
 
 Date of judg- 
 meat. 
 
 Variance in 
 time. 
 
 Indictment. 
 
 So in the late case of Purcell v. Macnamara, (2) in an action 
 for a malicious prosecution, where the allegation was, that the de- 
 fendant prosecuted an indictment against the plaintiff, until after- 
 wards, to wit, on a certain day named, the plaintiff was in due man- 
 ner acquited, &c.; and, to prove this allegation, the record of ac- 
 quittal was produced, which showed that the acquittal was on an- 
 other day, the Court held that the variance was not material, and 
 that the averment had been substantially proved. Here the day 
 was not alleged as part of the description of the record; but the 
 substance of the allegation was, that the plaintiff had been acquit- 
 ted on the prosecution. 
 
 So in an action against a sheriff for a false return, the declara- 
 tion stated, that the plaintiff in a certain term, (naming the term 
 and the year) by judgment recovered, " as appears by the record," 
 and the proof was that he recovered by a judgment of another term 
 and a different year: the Court held that this was not a variance; 
 that the averment, "as appears by the record," was mere surplus- 
 age, and might be rejected, inasmuch as the judgment was not the 
 foundation of the action, but only inducement to it. (3) [x) 
 
 It is a rule in pleading, that every material fact which is issu- 
 able and triable, must be averred to have happened at a certain 
 time and place. (3) However, it will not generally be necessary 
 to prove the time precisely as laid, unless that [)articular time is 
 material. This is the constant course of proceeding in criminal 
 prosecutions from the highest offence to the lowest. In high 
 treason, evidence may be given of an overt act cither before or 
 
 (1) R. V. Lockup, cit. 1 T. R. 240. 9 East, 298. Philips v. Shaw, 4 Barn. 
 9 East, 163. R. v. Pippet, 1 T. R. & Aid. 435. 
 
 235. R. V. Payne, cit. 9 East, 158 (3) Sloddart v. Palmer, 3 Barn. & 
 
 R. V. Leefe, 2 Campb. 139. Byne v. Cress. 2. In this case, an opinion of 
 
 Moore, 5 Taunt. 187. Cousins v. Brown, Lord Ellenborough in Purcell v. Macna- 
 
 l Ry. & Mo. 291. mara was overruled. 
 
 (2) 9 East, 157. Philips v. Bacon, (4) 5 T. R. 620. 
 
 (x) See Note 407, p. 518.
 
 Sect. 5.] The Substance of Issue Proved. 216 
 
 after the day specified in the indictment; the particular day is Variance in 
 
 not material in point of proof, and is merely maiter of form. ^ '"^^" 
 
 Objections of this kind, on behalf of the prisoner, have been re- 
 peatedly overruled. (I) (ij) 
 
 The same general rule applies, with as much reason, to civil Action, 
 suits. Thus, in an action on a promissory note, where the de- 
 claration states that the defendant on such a day made, &c., 
 proof that he made his promissory note on a different day would 
 be sufficient, (z) So in an action for assault, battery, taking of 
 gOMds, &c., where the defendant pleads the general issue, the 
 plaintiff will not be confined to the day stated in the declaration, 
 but may prove the assault, &c., on any other day before the 
 commencement of the action. (2) If the defendant justifies by go^ assault 
 son assault on the same day, and the plaintiff traverses the cause demesne, 
 of justification, and at the trial the defendant proves the trespass 
 on the same day, there the plaintiff cannot give evidence of an 
 assault on anotiier day. (3) And though the defendant should 
 prove the assault of the plaintiff on another day, yet the plaintiff, 
 after having made such a traverse, cannot prove another''assault 
 on a different day. (4) (o) 
 
 The same certainty of description, as to the place or parish. Variance in 
 is not so necessary in transitory as in local actions. In an action P'=**^'^- 
 for non-residence, where the parish was described as St. Ethel- 
 burgy and proved to be St. Elhelburga, it has been held, that the ,^j . •. , 
 variance was fatal; (5) so also it was, in an action of ejectment, 
 where the premises v;ere described as situate in the united par- 
 ishes of A. and .8., but were proved to be in the parish of */?., 
 and the two parishes were united only for the single purpose of 
 maintaining the poor. (6) Where the premises were described 
 as being in the parish of St. George the Martyr, Bloomsbury, and 
 
 (1) Lonl Biilmarino's cnso; Lord (4) 2 Roll. Ab. 680, tit. Evidence, 
 Cilmiirnock's case; Towniey's case; (C), Art. .3. Tliornton v. Lyster. Cro. 
 State Trials. Fost. 8. Car. 514, contra, (Joiie.s J. doiibtin<T,) 
 
 (2) Co. Lit. 2S2, a.b. 2 Roll. Ab. Roll. Ab. lb. See 2 Saiind. 5, nute°3. 
 687, 78«, tit. Verdict. (N). Com. (3) WiLson q. t. v. Gilbert, 2 Bos 
 Dig. tit. Pleader, (S. 12.) & Pul. 281. 
 
 (3) Dovvnes v, SUrymsher, Brownl. (6) Goodtitio dem. Pinset v. Lam- 
 233. 2 Roll. Ab. 687, 1. 30, S. C. miman, 2 Campb. 274. 
 
 (y) See Note 403, p. 533. (z) See Note 409, p. 533. (a) See Note 410, p. 533.
 
 216 
 
 Variance in 
 place. 
 
 Immaterial. 
 
 The Substance of Issue Proved. 
 
 [Ch. 7. 
 
 were proved to be in the parish of St. George, Bloomsbiiry, the 
 variance was held to be fatal. (1) 
 
 But where the premises were described as lying in the parish 
 of »/3. 4' B., and it appeared in evidence that part lay in A., and 
 part in B., and that there was no such parish as the parish of ^. 
 and B., the Court held, that the word parish was mere surplusage, 
 and that the plaintiff was entitled to recover the lands in B. as 
 well as in A. (2) So where the premises were laid to be in 
 the parish of Farnham, and were proved to be in the parish of 
 Farnham Royal, but it did not appear that there were two Farn- 
 liams, the Court held that the variance was immaterial. (3) But 
 if there had appeared to be another Farnham, there would have 
 been an uncertainty. (4) 
 
 Name of re- 
 pute. 
 
 Matter of 
 venue. 
 
 In an action for use and occupation, where the premises were 
 proved to lie in the parish of St. JMary, Lambeth, but were de- 
 scribed in the declaration as in the parish of Lambeth, which 
 last was the name generally known, the variance was held to 
 be immaterial, (5) and this has overruled an older case, where 
 a variance between the parish of Chelsae, and the parish of St. 
 Luke''s, Chelsae, was held at nisi prius to be fatal. (6) Although 
 it is not necessary, in this action, to describe where the premises 
 lie, (7) yet if they are described in the declaration as situate in a 
 certain parish, and are proved to be in a different parish, the 
 plaintifi" cannot recover. (8) 
 
 Where the parish or place mentioned is a mere matter of venue, 
 and not of local description, (as, in an action for a nuisance de- 
 famatory to the plaintiff's ^character, where the declaration stat- 
 ed, that the defendant erected the nuisance, complained of, in the 
 parish of Jl., in a street adjoining to the plaintiff's house, &c.) 
 
 (1) Harris v. Cooke, 8 Taunt. 539. 
 
 (2) Goodtille dem. Bremridge v. 
 Walter, 4 Taunt. 671. See Sir C. 
 Morgan v. Edwards, 6 Taunt. 394. 
 The case of Wilson v. ClerU, there- 
 fore, (1 Esp. N. P. C. 273,) seema 
 doubtful. 
 
 (3) Doe dem. Tollett v. Salter, 
 13 East, 9. R. v. Glossop, 4 Barn. 
 
 & Aid. 619. Taylor v. Hooman, 1 
 Moore, C. P. 161. 
 
 (4) Taylor v. Hooman, Holt, N. P. 
 C. 523. 
 
 (5) Kirtland v. Pounsett, 1 Taunt. 
 570. 
 
 (6) And see 3 Taunt. 140. 
 
 (7) King V. Eraser, 6 East, 348. 
 
 (S) Guest V. Caumont, 3 Campb. 
 235. 6 East, 352.
 
 ses. 
 
 Sect. 6.] The best Evidence to be Proved. 217 
 
 the actual situation of the house is immaterial, and ths plaintiff Variance in 
 
 ' _ ' phice. 
 
 may recover, though it should be proved that tliere is no such 
 
 parish. (1) (6) 
 
 0.1 the trial of an indictment, it will be sufficient to show, that Ru'e in inJict- 
 the olrence was committed in some i)!ace witnm the county or oth- 
 er division. r^Ir. Sergt. Ha»vkins soys, (2) it seems to be agreed, 
 that tliis nVisiake of the place, in which an offence is laid, will not 
 be material upon the evidence, on the plea of not guilty, if the fact 
 be proved at some other place in the same county. Even if there 
 should appear to ba no such parisli, as tliat laid, in the county, it 
 lias been doubted whether the indictment would be bad. (.>) (c) 
 
 "By a recent statute, it is wiselv provided f4) that no iudarment Juc'gn-ent not 
 
 J T ^ ./I \ / J s 10 be leversed, 
 
 upon any indictn)ent or information shall be stayed or reversed for in ceriain cn- 
 want of the averment of any matter that is imnecessary to be prov- 
 ed, or because any person is misdescribe:] in the pieadiugs in respect 
 of iiis office or other descriptive appellation, or on account of the 
 omitting to state the time of committing the ofTence where time is 
 not of the essence of the offence, or for stating the time imperfect- 
 ly, or for stating the offence to have been committed subsequent to 
 the time of the finding of the indictment or the exhibiting of the 
 information, or on an impossible day, or a day that never hapi3en- 
 ed; nor shall it be stayed or reversed for want of a proper or per- 
 fect venue, when the Court shall appear to hive had jurisdiction 
 over the offence, (e) 
 
 Sect. VI. 
 
 The best Evidence is to be Produced^ tohich the JVature of the Case 
 
 admits. 
 
 The next general rule is, that the best evidence must be given, 
 of which the nature of the thing is capable. (5) 
 
 (1) Jefferltts V. Diincnnil)e, 1 1 Eist, (2) R. 2, c!i. 23, s. S4. R. v. Daw- 
 
 226; 2 Ciinipl). 3, S. C For oiliar liii.;, 1 Ry. & Mo. 433. 
 exuii|)!e^, see Drevvry v. T^vi^^, 4 (.!) II. v. D)vvli:i^'. I Ry. Si. .Mo. 
 
 Tona lle[j 55S Friih v. Gr.iy. ib. 433- And i.io 3 C.iiii[)b. 73. But a.'tj 
 
 561 Ci):>i;). of Mcrs-y &. Iiwc-ii N:iv. a!.sj 9 li. 0, St. I, c 1; and BMti'a 
 
 V. Doii;^l.is, 2 E.»:^t. 4^7. Ilainar v. Just 24ili ed. p. Hi, M^ case. 
 Rayinoud, 5 Tauut. 731). (4) 7 G. 4. c. 64, a. 20. 
 
 (5) Giltj. Ev. 13. Bull. N. P. 335. 
 
 (i) S".n: Note 41!, p. 53S. CO ^^JO Note 412, p. 533. (c) Ssa .\'«tu 413, p. 53: 
 
 Vol. i. 23
 
 218 
 
 The best Evidence to be Produced. [Ch. 7. 
 
 Principle 
 the rule. 
 
 Deed- 
 
 WUl. 
 
 of The true meaning of this jule is, not that courts of law require 
 
 the strongest possible assurance of liie matter in question, but that 
 no evidence shall be given, which from the nature of the thing 
 supposes still greater evidence behind in the party's possession or 
 power ; for such evidence is altogether insufficient, and proves 
 nothing, but carries with it a presuniption contrary to the inten- 
 tion for which it is produced. (1) Thus, if a party offer a copy of a 
 deed or will, where he ought lo produce the original, this raises a 
 presumption, ihai there is something in the deed or will, which, if 
 produced, ^vould make against the parly; and therefore the copy 
 in such a case is not evidence. But if he prove the original deed 
 or will to be in the hands of the adverse party, who refuses to pro- 
 duce it, although he has received a regular notice for that pur- 
 pose, — or if he prove, that the original has been lost or destroyed 
 without his default, — no such presumption can reasonably be 
 made, and a copy will be admitted, because such a copy is the best 
 evidence that can be produced. (2) (/) 
 
 ProoF of insur- 
 ance- 
 
 Registered 
 deed. 
 
 On the trial of a person charged willi having wilfully, and with 
 intent to injure an assurance company, set fire to a house, which 
 he had insured at the company's office, it would not be allowable to 
 prove the insurance by means of an entry in the company's books, 
 unless in the first instance a regular notice has been given lo the 
 prisoner to produce the policy at the trial; (3) but, if such notice 
 has been given, then the entry in the insurance books would be 
 admissible. So if it should be material for a plaintiff, in rejdy (o 
 the case of the defendant, to prove the contents of a registered 
 deed, which is in the defendant's possession, the memorial of (he 
 deed, or other secondary evidence, would not be admissible for that 
 purpose, unless there has been previously a notice to the defend- 
 ant lo produce the original. (4) 
 
 (1) Glib. Ev. 13. to tho cases, in which a notice to 
 
 (2) Gilli. Ev. 13. Bull. 323. Gar- produce writings may be dispensed 
 nous V. ?vv:l't., 1 Tiiunt. 507, stiitod with. 
 
 infra. Henry v. Leigh, 3 Ciiinpb. (8) R. v. Doran, 1 Esp. N. P. C. 
 
 499, staled 'iiirra. Seo also, inlVn, 127. 
 
 part 2, ell. 8 sect 2, as lo the adiui.s- (4) Molton q. t. v. Harris, 2 Esp. N. 
 
 siliilily of secondary evidence in the P. C. 548. 
 
 case of written instruments ; and as 
 
 (/3SecNote414, p. 540.
 
 Sect. 6.] The best Evidence to be Produced. 219 
 
 Parol evidence is not admissible^ to prove the contents of a 11- Licence to 
 cence to trade granted from the crown, though the licence is lost, 
 because there must be some register of it at the secretary of state's 
 office, and that register would be better than parol evidence. (1) 
 Nor is parol evidence admissible to prove tlie taking of the oaths 
 required by the toleration act : as the fact would be regularly en- '^ .. ^ 
 tered on liie records of the court, in which the oaths are supposed oaths. 
 to have been taken. (2) {g) 
 
 The discharge of a defendant, by a court of quarter sessions, Discharge of 
 under an insolvent debtor's act, cannot be proved by parol evi- '°^° 
 dence, nor by proof of an acknowledgment of the discharge by the 
 plaintiff himself; for the discharge may have been irregular and 
 void, or may have been mistaken by the plaintiff: a judicial act 
 of this kind sliould be proved by calling the clerk of the peace, 
 and giving in evidence the judgment or adjudication of the court 
 for the debtor's discharge. (3) (/i) 
 
 The general rule, now under consideration, is strongly illustrat- 
 ed by the case of Williams v. The East India Company, (4) where 
 the question was, whether the defendants had put on board the 
 plaintiff's ship some articles of a combustible and dangerous kind, 
 without giving due notice of their nature to the master of the ship, 
 or to any other person employed in its navigation .'' It appeared in 
 evidence at the trial, that the goods were delivered by the officer of 
 the defendants, with a written order to the plaintiff to receive them, 
 in which order nothing was said as to their nature ; that they 
 were received by the chief mate of the plaintift"'s ship, who had 
 since died ; and that no other person was present at the time of the 
 delivery. It was further proved, by the captain of the ship and 
 the second mate, that no communication had been made to either 
 of them, nor, as far as they knew, to any other person on board. 
 Upon this evidence the plaintiff, who had to prove the negative, 
 
 (1) Rhind v. Wilkinson, 2 Taunt. |nssumpsit ; the general issue pleaded; 
 237. Eyre v. Palsgrave, 2 Campb. ;tlie defence was, that the plaintiff iiad 
 605. heen so discharged after tiie cause of 
 
 (2) R. V. Huhe, Peake, N. P. C. action had accrued, and before the com- 
 131. mencement of the suit. 
 
 (3) Scott V. Clare, 3 Campb. 236, (4) 3 East, 193, 201. 
 by Lord EUenborough. Action of 
 
 (g-) See Note 415, p. 512. {h) See Note 416, p. 544.
 
 220 The best Evidence to be Produced. [Ch. 7. 
 
 was nonsuited, on the ground, that he had not given the best evi- 
 dence of the want of notice, which it was in his power to produce, 
 by calling the company's officer, who delivered the articles on 
 board. And the nonsuit was afterwards affirmed by the Court of 
 Best proof of King's Bench. " The best evidence," said Lord Ellenborough, 
 ue-jaiue. jjj [jujivering the opinion of the Court, " should have been given, 
 
 of whicli the nature of the case was capable. The best evidence 
 was to have been had, by calling, in the first instance, upon the 
 persons iaur.ediately and officially employed in the delivering and 
 in the receiving of the goods on board, who appear in this case to 
 have been the first mate, on tlie one side, and the military con- 
 ductor, the defendant's officer, on the other ; and though the one 
 of these persons, the mate, vv^as dead, that did not warrant the 
 plaintiff in resorting to an inferior and secondary species of testi- 
 mony, (namely, the presumption and inference arising from a non- 
 communication to the other persons on board,) as long as the 
 military conductor, the other living witness, immediately and pri- 
 marily concerned in the transaction of ship|)ing the goods on board, 
 could be resorted to; and no impossibility of resorting to this evi- 
 dence, the proper and primary evidence on the subject, is suggest- 
 ed to exist in this case." (i) 
 
 It has been already observed, that although the best evidence 
 is to be given which the nature of the case admits, yet the 
 Proof of deed, strongest possible assurance of a fact is not required, (j) If a deed, 
 for example, is attested by several subscribing witnesses, the exe- 
 cution may be proved by one of them : or, if none of those witness- 
 es can be produced, proof of the signature of one witness will be 
 sufficient; for the proof is, as far as it goes, complete, and not in- 
 ferior in its kind, to any that can be produced : nor can it be in- 
 ferred merely from the absence of fmiher j)roof of the same 
 kind, tiiat such additional proof uould be inconsistent with that 
 Admission of already [produced, (/i) So, to prove the plaintiff's demand sat- 
 pa^ment. jsfied, the defendant may give evidence of an admission by the 
 
 plaintiffto that effect, thong!) it should appear that the plaintiff 
 also signed a receipt, and it may be said thn receipt would be more 
 satisfactory proof. (1) (/) And, where an agent for the plaintiff 
 
 (1) Jacob V. Lindsay, 1 East, 460- Smith v. Young, 1 Canipb. 439. 
 
 (z) See Note 417, p. 544. ( j) See Note 418, p. 646. (fc) See Note 419, p. 
 547. {I) See Note 420, p. 547.
 
 Sect. 6.j The best Evidence to be Produced. 221 
 
 made a verbal agreement with the defendant, and afterwards put Written mem- 
 It down in wninig, (which was not signed by the parties,) as a 
 memorandum to assist his recollection, such writing is not the 
 best evidence, nor indeed any evidence of the agreement, though 
 it may be used by the agent for the purpose of refreshing his 
 memory. (l)(?n) 
 
 If parol evidence should be offered to prove the terms of a ten- Tern-sof 
 ancy, it is no objection that there is some written agreement rela- *^"''"'^i" 
 tivc to the holding of ilie lands in question, unless it should appear 
 that the agreement was between the landlord and tenant, and that 
 it continued in force down to the period, to v.hich the parol evi- 
 •dence applies. (2) Nor would it be a sufficient objection against 
 the admission of parol evidence, that a written memorandum, spe- 
 cifying the terms, had been assented to by the defendant, if he had 
 not signed the memorandum, as he had stipulated to do; for the 
 mcuioiandum would not become an agreement, until executed by 
 the defendant; it contained a mere proposal, which had not been 
 accepted. (3) («) 
 
 In the late prosecution of Hunt for a conspiracy, (4) the Court RRsoluiicns at 
 of King's Bench determined, that a paper, which had been deliv- " 
 
 ered by the defendant to a pei'son present at a meeting, as a co[)y 
 of certain resolutions about to be pro[)osed and read, and which 
 was proved to correspond with the resolutions afterwards propos- Piiper deliver- 
 ed, was properly received at the trial as evidence of those reso- ^ y P">o"er. 
 lutions; without proof of any previous notice to the defendant, 
 to j)roduce the paper from which the resolutions were supposed to 
 be read. This paper was considered, as against the party him- 
 self to whom it applied, to be fully as good evidence as any that 
 could be produced. In the same case, (5) the Court of K. B. held 
 that inscriptions on flags and banners, which had been exhibited to Inscriptions, 
 public view, might be proved by eye witnesses, speaking to what 
 they had seen on the occasion; and though it appeared that the 
 flags had been seised and taken away by police officers, (so that 
 
 (1) Daiison V. Stark, 4 Esp. N. P. wriglit, 3 Barn. & Aid. 326. Stevens 
 C. 163. 1 El St, 460. Uamsl)ottoin v. Pinney, S Taunt. 32S. 
 
 V. Tunbridge, 2 Maulc & Selvv. 434. (4) Rex v. Hunt, 3 Barn. & Aid. 
 
 (2) Doa d. Wood v. Morris, 12 East, 568, 572. See also Watson's case, 32 
 237. Doe v. Pearson, 12 East, 239, n. Howell's St. Tr. 6S, 83, 256, 257. 
 
 (3) Doe dem. Bingham v. Cart- (5) Rex v. Hunt, 3 Barn. & Aid. 574. 
 
 (m) See Note 421, p. 550. (n) See Note 422, p. 551.
 
 222 The best Evidence to be Produced. [Uh. /. 
 
 they mi^lit have been produced,) the evidence was not considered 
 on this account to be less coinpeteul; such inscriptions are, as the 
 Lord Chief Justice observed, the pubhc expressions of the senti- 
 ments of those who bear them, and have rather the character of 
 speeches than of writings. 
 
 r?<*/. "proved Whether resolutions, which have been proposed at public meet- 
 by parol. ings, may be primarily proved by the parol evidence of witnesses, 
 when the person proposing tlie resolutions ai)peared to read them 
 from a written paper, is a much larger quesli'tn ihan the one above 
 mentioned. This point appears to have been much discussed in 
 the prosecution of Di'. Sheridan and Kirwan, in Ireland, (I) who 
 were tried for an offence against the Irish Convention Act. The 
 indictment began with averring that divers persons had assembled 
 together, and intending to procure the appointment of a commit- 
 tee of ()ersons,(ofa particular description, and for a specific object,) 
 entered into certain resolutions respecting such committee, the 
 purport and effect of whicli resolutions were set out at lengih; the 
 indictment then proceeded to charge Dr. Sheridan wiili certain 
 acts done by him for the purpose of assisting in forming such com- 
 mittee, and for carrying into effect the resolutions l>efore mention- 
 ed. To prove the first averment, the counsel for the prosecution 
 called a witness, who stated, that a general meeting, (at which it 
 was adcnitted the defendants were not present,) the secretary of 
 the meeting proposed a resolution, and read it from a paper. The 
 proposition was seconded; the secretary then handed the paper to 
 the chairman, and the chairman read it. The witness was then 
 asked. What was the resoluiiou.'' This question was objected to, 
 on the ground, that the absence of the writing itself should be ac- 
 counted for, before any parol evidence of its contents could be re- 
 ceived. After a very full argument, a majority of the court were 
 of opinion, that this was not a case to which the distinction be- 
 tween primary and secondary evidence was strictly applicable. 
 That the proposed evidence was intended to show, not what the 
 paper contained, but what one person proposed and what the meet- 
 ing adopted; in short, to prove the transactions and the general 
 conduct of the assembly; and that such evidence could not be 
 
 (1) 1811, 31 Howell'g St. Tr. 672.
 
 Sect. 6.] The best Evidence to be Produced. 223 
 
 rejected, because some person present took notes of what pass- 
 ed. (I) The form in which ihe argument was presented hy the 
 solicitor general, was tnore striking: — " A number of persons," 
 he said, " assemble and confer together — they agree to a certain 
 resolution. If it be necessary to prove such a transaction in a 
 criminal trial, would ihe prosecutor be bound to produce the reso- 
 lution in writing.-* Would the prosecutor be bound by the man- 
 ner in which it was taken down by one of the confederates? If 
 the paper, supposed to contain the resolution, were produced, 
 would that preclude the prosecutor from giving evidence ot oilier 
 matters which took place. ^ Or suppose, further, that the matter 
 were reduced to writing in such a way as to avoid a criminal im- 
 putation, alihougli every sentence of the debate or conversation 
 were criminal, would the prosecutor be bound by the former, and 
 precluded from giving evidence of the latter?" 
 
 For the purpose of proving hand-writing, it will not be neces- Proof of hand- 
 sary, in the first instance, to call the supposed writer himself; the 
 evidence of persons, well acquainted with the general character of 
 his writing, who, on inspecting the paper, can say, that they be- 
 lieve it to be his hand-wriiing, will of itself be sufficient. Such 
 evidence is not in its nature inferior or secondary; and though it 
 may generally be true, that a writer is best acquainted with his 
 own hand-wiiting, and therefore his evidence will generally be 
 thought the most satisfactory, yet his knowledge is acquired pre- 
 cisely by the same means as the knowledge of other persons, who 
 have been in the habit of seeing him write, and differs not so much 
 in kind as in degree. The testimony of such persons, therefore, 
 is not of a secondary species; nor does it give reason to suspect, as 
 in the case where primary evidence is withheld, that the fact, to 
 which they speak, is not true. It is the common practice to re- 
 ceive such evidence in ordinary cases; as, where the signature of 
 a magistrate, on a deposition taken before him, is to be proved, it 
 is usually proved by a witness acquainted wiih the general char- 
 acter of his hand-writing without the evidence of liie magistrate 
 himself, (o) 
 
 But where the object, which a party has in view, ts to disprove Disproving of 
 
 hiiiulvvriiing 
 (1) One of llie judges held, ihal llic evidance was iaadmi.-siblo. "' S*-"''^'^'''' 
 
 (o) See Note 423, p. 553.
 
 224 The best Evidence to be Produced. [CIi. 7. 
 
 band-wriling, and proved it forged, the most aulheniic and most 
 satisfactory trial of the question seems to be, by resorting to the 
 information of the snpi)Oscd writer himself, in preference to the 
 evidence of third persons, however well acquainled such persons 
 may be with the general si) le of the snp])0sed writer's hand-writ- 
 ing, (supposing, of course, that he is not disqualified by interest, 
 as a pariy to ihe suit, nor for any other cause incompelent ;) 
 for a genuine and true signal ure may possibly, either from ac- 
 cident or inleniion, be a deviaiion from the general form or char- 
 acter i)f the writer's style, in which case a witness, who judges 
 merely from the impression produced on his mind by such general 
 character, is likely to be deceived, and would probably conclude, 
 that a signature, so unlike the usual slyle of writing, must have 
 been forged: whereas, if the person, by whom the signature pro- 
 fesses to be made, were himself to be called as a witness, be 
 might be able (o state some peculiar circumstances within his own 
 knowledge, and give such decisive proof, with regard to the sig- 
 nature in question, as at once to remove all doubt respecting its 
 genuineness. 
 
 Disproving of j{ {,;^g ]^qqx\ held, however, in a prosecution for the forgery of a 
 
 siguiiture oi ' . . ' , • r i 
 
 Laiikclerli. bank note, that the signature, m the name ot the cashier ol the 
 bank, may be disproved by any person acquainled will) his hand- 
 wriiing, (1) though the cashier himself would not be an incom- 
 petent witness. (2) And it is the common practice to disprove 
 the signature of the entering bank clerk by this sort of evidence. 
 In such prosecution, it may be observed, there is commonly 
 some other proof of forgery, independent of the forgery of the 
 signature, (in the lextm-e of the paper, for instance, in the en- 
 graving, the ink, the date, &c.,) which additional proof would 
 very materially confirm the other part of the case, as to the for- 
 gery of the signature. However, it must be admitted, if the 
 proof of the forgery of the signature, by the evidence of persons 
 acqtiainted with the hand-writing of the cashier or entering 
 clerk, were in iis own nature incompetent and inadmissible, as 
 being secondary proof, the additional evidence of the forgery in 
 
 (1) Bv Le Diunc J., in Hughes' (2) Newland's case, I7S4, 2 East, P. 
 case. 1802, 2 Eiist, P. C. 1002. Exe- C. 1001. 
 tei Sp Ass. Case of Bank Prosecu- 
 tions, Kuss. & Ry. Cr. C. 3S0, S. P.
 
 Sect. 6.] The best Evidence to be Produced. 225 
 
 other party, confirmatory as it may be, would certainly not have 
 the effect of rendering such proof admissible. On what specific 
 ground this evidence was admitted in the case above referred to — 
 whether on account of the inconvenience, hkely to result from re- 
 quiring the attendance of the bank clerk, who might possibly be 
 equally wanted in similar prosecutions in other places at the same 
 time — or whether on the supposition, that the signatures of an 
 entering clerk, who had merely signed officially, and was not in 
 any degree personally interested, were not likely to vary, and would 
 generally preserve an uniform and unvaried style of writing — or 
 whatever other reason might be assigned — the short note of the 
 case does not enable the reader to decide. 
 
 However, this case does not appear to have decided the general Disproving of 
 ' ' ' '-' other person 8 
 
 proposition, that, in any prosecution for forgery, where the person, signature. 
 
 whose hand-writing is supposed to be forged, woidd be a compe- 
 tent witness, the writing may be disproved by others who are ac- 
 quainted with the character of his hand-vt^riting, without the con- 
 current testimony of thai person himself. And in an earlier case, 
 in which the captain of a ship was charged with having made al- 
 terations in a tradesman's receipt, with intent to defraud the ship- 
 owner, (1) two judges (Mr. Justice Gould and Mr. Justice Yates) 
 held, that the evidence of a partner of the tradesman could not be 
 admitted to prove the altered parts of the receipt to be forged, but 
 that the evidence of the person himself, in whose name the altera- 
 tions purported to have been made (who was not proved to be dead, 
 and who would have been a competent witness,) was indispensa- 
 bly necessary. They considered that his testimony would be the 
 best, as he could certainly give the most satisfactory evidence on 
 the point, whether the alterations in his bill were his own correc- 
 tions, or were forged by some other hand, whereas the partner 
 could only speak from opinion : and it was an established rule, 
 they said, that in all cases the best evidence should be given which 
 the nature of the case will admit; and less than that can never be 
 received, if it appear that better might have been supplied, (p) 
 
 (1) Capt. Smith's case, O. B. 1768. 2 East, P. C. 1000. And vide supra, p. 
 223, 224. 
 
 (fi) See Note 424, p. 554. 
 
 Vol. I. 29
 
 226 
 
 Tht best Evidence to be Produced. [Ch. 7. 
 
 The rule, wliich requires the best evidence to be produced, is 
 dispensed with in the following cases: 
 
 1. Entry in 
 public book. 
 
 1. Where it is necessary to prove an entry in a public book, the 
 original need not be shown ; but, from a principle of general con- 
 venience, an examined copy will be admitted. (1) (q) 
 
 2 Proof of 
 public officer. 
 
 Revenue 
 officer. 
 
 Surrogate. 
 
 Military offi- 
 cer. 
 
 Collector of 
 taxes. 
 
 Under sheriff. 
 
 2. In the case of all peace-officers, justices of the peace, consta- 
 bles, &c. it is sufficient to prove, that they acted in these charac- 
 ters, without producing their appointments. (2) (r) And in the 
 case of officers of any branch of the revenue, where the question is 
 whether they are such, proof of being reputed to be so, or of hav- 
 ing exercised the office, is good evidence of the fact, on any indict- 
 ment, information, action, or prosecution. (3) On an indictment 
 for perjury, committed by the defendant before a surrogate in an 
 ecclesiastical court, proof that the person who administered the oath, 
 acted as surrogate, has been held to be sufficient prima facie evi- 
 dence of his appointment and authority. (4) On an information 
 against a military officer for making false returns, it is sufficient to 
 prove, that he acted in the character alleged in the charge, with- 
 out adducing direct evidence of his appointment. (5) In an action 
 for penalties against a collector of taxes, proof of his collecting the 
 taxes is sufficient proof of his being collector, though his appoint- 
 ment is by warrant under an act of parhament. (6) And proof of 
 a person's acting as under-sheriff is sufficient proof of his authority 
 to do any act necessary in the course of the office; as, for instance, 
 to make an assignment of a lease, under an execution, in the name 
 of the sheriff. (7) (s) 
 
 3. Proof by 3, There are other instances in which strict proof is made 
 
 admission of . , • i • i i 1 
 
 party. unnecessary, because the party, agamst whom it would other- 
 
 wise be requisite to produce proof of the particular fact, has by 
 
 (1) See infra, part 2, c fi, ad fincm. (4) Rex v. Verelst, 3 Canipb. 432. 
 
 (2) By Duller, J. in P.errymnn v. Rex. v. Creswell, Lond. Silt, after 
 Wise, 4 T. R. 366. By the' opinion Mich. 1816, S. P. 
 
 of ail the judgps in the case of the Gor- (5) R. v. Gardner. 2 Campb. 513. 
 dons, tried for murder in 1789, Leach, (6) Lister, q. t. v. Priestly, White- 
 
 Cr. C. 585. "ick. Rcp- ^7. 
 
 (3) St. 26 G. 3, c. 77, s. 18, st. 26 (7) Doe dem. James v. Brawn, 5 
 G. 3, ch. 82, s. G; and see st. 11 G. 1, Earn & Aid. 213. 
 
 ell. 30, s. 32. 
 
 (5) See Note 425, p. 55.L fr) See Kote 426 n. .^54. (s) See Note 427, p. 5*^'
 
 Sect. 6.] The best Evidence to be Produced. 227 
 
 his conduct precluded himself, in the way of estoppel, from dis- 
 puting the fact. (1) (0 There are few cases, indeed, in which a 
 person's acts operate against him as an estoppel, though they may 
 often be used as good |)7-tma/acie evidence against him. (2) Such 
 is the rule in an action against clergymen for non-residence, in Receipt of 
 which it is reasonable that the acts of the defendant as parson, *'^'^**- 
 and his receipt of the emoluments of the church, should be evi- 
 dence against him of his being parson, without formal proof of his 
 title. (3) (m) 
 
 In an action by a person, as farmer and renter of tolls, appointed Accounting 
 under an act of parliament, for tolls due at a turnpike gate, al- ^' ^"" ^'^' 
 though the plaintiff will not be entitled to recover on the special 
 count, luiless he has been legally appointed collector of the tolls, 
 yet, if the defendant has accounted with him in that character, the 
 want of a formal appointment will not preclude him from recover- 
 ing on an account stated. (4) 
 
 In an action for penalties under the post-horse act, brought by Accounting 
 the plaintiff as farmer-general, proof of his appointment was dis- ^^J!"^^""® '" ^'" 
 pensed with, because the defendant had previously accounted with 
 him as farmer-general. (5) In an action for subtraction of tithes, Acknowledg- 
 proof of the defendant's former acknowledgment of the plaintiff's „„ farmer od 
 title to the tithes was thought to be sufficient evidence, as against casions. 
 the defendant a wrong-doer. (6) 
 
 In an action against the defendant for slander, in charging the Admission on 
 plaintiff with being a swindler, and threatening that he would have occasion. 
 him struck off the roll of attornies, the Court was of opinion, that 
 the defendant's threat amounted to a distinct acknowledgment 
 that the plaintiff was an attorney, and dispensed with further 
 proof. (7) 
 
 (1) By Chambre, J., Smith v. Tay- (5) Radford q. t. v. Macintosh, 3 
 lor, 1 Bos. & Pul. N. R. 210; and T. R. 632. And see Cross v. Kaye, 
 seethe cases cited supra, p. 89. 6 T. R. 663, and I New Rep 205, 
 
 (2) By Chambre, J. I New Rep. 211. 
 
 210. (6) 1 Bo3 & Pul. N. R. 210. 3 
 
 (3) By Chambre, J. 1 New Rep. T. R. 635. 4 T. R. 366- Chap- 
 210. Bevan q. t. v. Williams, n. (a,) man v. Beard, 3 Anstr. 492. 4 Gwill. 
 3 T. R. 635. 1483, S, C. 
 
 (4) Peacock v. Harris, 10 East, 104. (7) Berryman v. Wise, 4 T. R. 366. 
 
 CO See Note 428, p 656. («) See Note 429, p 566.
 
 228 The best Evidence to be Produced. [Ch. 7. 
 
 The principle to be extracted from these cases seems to be, that 
 where a defendant, in the course of the transaction, on which the 
 action is founded, has admitted the title, by virtue of which the plain- 
 tiff sues, it amounts to /jrinia/acic evidence, that the plaintiff is enti- 
 tled to sue.(l) Upon this principle two of the Judges of the Court of 
 Common Pleas were of opinion, that the plaintiff was entitled to re- 
 WcrJs imply- covcr in the case of Smith v. Taylor. (2) That was an action for 
 
 ingqaalifica- defamation, in which the plaintiff averred, that he was a nhysi- 
 tioi). ' , ' -^ 
 
 cian, and exercised the profession, and that the words were spoken 
 
 concerning him as a physician. It appeared, that the words did 
 not impute want of qualification by degree, but only want of skill 
 in practice; and that the defendant called the plaintiff " Z)r. S.," 
 when he spoke the words: and, further, the defendant, as an 
 apothecary, had followed the directions of the plaintiff, as a physi- 
 cian, in the business out of which the cause of action arose. These 
 circumstances were considered by the other judges, sufficient|)nw« 
 Words not so/«c?e evidence of the plaintiff's qualification. On the other hand, 
 implying. if the words imply a charge, that the plaintiff was not qualified to 
 act in the particular character which he assumed, it has been held 
 that the qualification ought to be proved, and that it will not be 
 sufficient to show his acting in that cajiacity. (3) And where the 
 words imply merely ignorance or negligence, without admitting 
 the plaintiff to be qualified, and the plaintiff avers that he is quali- 
 fied, he will be bound to prove his qualification. (4) {v) 
 
 Admissions. The proof of an admission of a fact by a party to the suit has, 
 
 in many cases, been considered sufficient to dispense with the 
 strict and regular proof, which would otherwise have been neces- 
 
 Of assignment sary. If a lessee acknowledges, that he has assigned the lease 
 to another person, this is evidence against him of his having trans- 
 ferred all his interest in the premises, though an assignment 
 can only be effected by some instrument in writing. (5) And ad- 
 mission by the defendant, that a third person had become a 
 
 (1) By Healh, J. I New Rep. 208. Ch. J. in I New Rep. 204, 207 Pick- 
 
 (2) 1 New Rep. 197, by Miinsfielfl, ford v. Gutch, 8 T. R. 305, n. (a); 
 Ch. J. and Heath, .f. ; but Rock, J. Moises v. Thornton, 8 T. R. 3'.3. 
 
 and Chambre, J. were of opinion, that (4) See 1 New Rep. 204, 207. 
 
 the words did not admit the qualifica- (5) Doe dem. Lowden v. Watson, 
 
 t'lon. 2 Starkie, N. P. C. 230. 
 
 (3) See the judgment of Mansfield, 
 
 (r) See Note 430, p. 556.
 
 Sect. 7.] Hearsay not Evidence. 229 
 
 bankrupt, is evidence of the bankruptcy, in an action brought by Ofbankrnptcy. 
 the assignee of the bankrupt; and will dispense with the necessi- 
 ty of going through the fornfial proof of the trading and act of 
 bankruptcy, as in ordinary cases. (1) So, if the defendant has ac- of composition 
 knowledged, that he agreed to pay a certain sum of money for '^'" ^'^'^'^^• 
 tithes leased to him by the plaintiff, this will be sufficient proof of 
 the agreement, in an action on a composition for tithes, although 
 it appear that the agreement is in writing, and in the plaintiff's 
 possession, (w) 
 
 Sect. VII. 
 
 Hearsay is not Evidence. 
 
 Hearsay evidence is the statement which a witness professes to Hearsay, 
 have heard given by a third person, as to some particular transac- 
 tion or thing; literally, what the witness says he heard another 
 person say. Tl)is is hearsay in \\\e first degree. If the supposed 
 third person stated the alleged fact, not as being within his person- 
 al knowledge or experience, but as something which he had heard 
 from another, it is hearsay in the second degree at the nearest, per- 
 haps in a much remoter degree. Hearsay is not admitted in our 
 courts of justice, as proof of the fact which is stated by a third 
 person. This general rule (subject to certain exceptions, hereafter 
 to be mentioned) has been recognized and approved, from the earli- 
 est times, as a fundamental principle of the law of evidence, and 
 is always to be strictly observed, [x) Some of our earliest writers 
 lay it down as a proposition, acknowledged in our courts, and not 
 to be questioned, that matters of fact shall be tried by proof of wit- 
 nesses, upon oath, before the judges. (2) This implies, that the 
 person on whose statement any fact is to be proved, must be sworn 
 in the regular form, and speak to the fact from his own personal 
 knowledge, in open court, at the time of trial, {y) 
 
 It is a general principle, then, in the law of evidence, thai if 
 any fact is to be substantiated against a person, it ought to be 
 proved in his presence by the testimony of a witness sworn to 
 
 (1) Maltby, assignee of Dourouveray & Mo. 187. Scott v Clare, 3 Campb. 
 
 V. Christie, 1 Esp. N. P. C. 340, cited 16 236, stated supra, p. 219. 
 East, 193. Dickenson, assignee of Booth, (2) Sheppard's Abridgment, title 
 
 V. Coward, 1 Barn. & Aid. 677, stated " Tryal." Roile's Abridgment, 
 in vol. ii. See Bloxam v. Elsie, 1 Ry. 
 
 (w) See Note 431, p. 556. (x) See Note 432, p. 559. {y) See Note 433, p. 56S.
 
 230 Hearsay not Evidence. [Cli. 7. 
 
 speak the truth; and the reason of tlie rule is, because evidence 
 ought to be given under the sanction of an oath, and that the per- 
 son who is to be effected by the evidence, may have an opportuni- 
 ty of interrogating the witness, as to his means of knowledge, and 
 concerning all the particulars of his statement, {z) 
 
 Letters or private papers written by a third person, are open to the 
 same objection precisely, in point of principle, as hearsay declara- 
 tions; being statements made without oath, and not in the pres- 
 ence of the party, who would be prejudiced by them. In one re- 
 spect, indeed, there is a difference between written and oral state- 
 ments; that the former are more easily proved to be genuine than 
 the latter. A written accoiuit is proved to be genuine, by proof of 
 the hand-writing; whereas the genuineness of mere oral declara- 
 tions must depend upon the memory and accuracy of the witness 
 who professes to repeat them. But this distinction, it is evident, 
 relates only to their comparative value, and cannot affect the ques- 
 tion of their admissibility, (a) 
 
 The most convenient order for treating this subject will be, 
 first, to mention certain cases, clearly distinguishable from cases of 
 hearsay; and then to state the exceptions to the general rule. 
 
 Testimony on First, the testimony of a deceased witness, (6) who has been 
 former trial, examined upon oath, on the trial of a former action (c) between 
 the same parties, (c?) and where the point in issue is the same(e) as 
 in the second action, is admissible (/) on the trial of the second ac- 
 Witness dead, tio"? 3"^ ^^^Y ^^ proved by one who heard him give evidence, (I) 
 for such evidence on the former trial was not given in an extra- 
 judicial manner, but upon oath: the parties to the suit were the 
 same, the point in issue was the same, and an opportunity was 
 given for cross-exaniination. These circumstances plainly dis- 
 tinguish the proposed evidence from hearsay. So, where a per- 
 son, who had been sworn on a former trial between the same 
 
 (1)' R. V Carpenter, 2 Show. 47. 563. Pike v. Crouch, 1 Ld. Raym. 
 
 Duckworth's case, Sir T. Raym. 170. 7.30. By Lord Kenyon, 4 T. R. 290. 
 
 Vin. Ab. " Evidence, (T. b. S8.) pi. Mayor of" Doncaster v. Day, 5 Taunton, 
 
 4. Coker v. Farewell, 2 P. Wnis. 262. 
 
 (2) See Note 434, p. 569. (a) See Note 435, p. 569. (6) See Note 436, p. 571. 
 (c) See Note 437, p. 671. (d) See Note 438, p. 572. («) See Note 439, p.575. 
 (/) See Note 440, p. 575.
 
 Sect. ?.] Hcarsaij not Evidence. 231 
 
 parties on ihe same issue, and subpoenaed to appear as witness at 
 
 a second trial, did not appear in obedience to the writ, the Court of 
 
 Kina's Bench, seeing reason to believe that he had been kept away Witness kept 
 
 f . ;?,, j-ji- away, 
 
 by the contrivance ol the adverse party, admitted other witnesses 
 
 lo prove what he had sworn on the former occasion. {I) (g) 
 
 It has been laid down, in Lord Palmerton's case, that the person How proved, 
 called to prove what a deceased witness said on the former trial, 
 must undertake to repeat precisely his very words, and not merely 
 to swear to their effect. (2) And, in a case before Lord Kenyon, a 
 witness was not allowed to speak to the effect of what the deceas- 
 ed witness had sworn. " He ought," said Lord Kenyon, " to rec- 
 ollect the very words; for the jury alone can judge of the effect of 
 words." (3) This, it is conceived, can only mean, at the furthest, 
 that he must be able to speak to the identical words of the former 
 witness, when it is essential that the very identical words should 
 be known. In some cases, proof of the substance of the former evi- 
 dence may be as satisfactory as proof of the identical words, unless 
 the witness can undertake (what is not possible) to deliver the 
 same words precisely with the same manner, and in the same 
 tone, (/t) 
 
 For the purpose of introducing an account of what a deceased Proof of for- 
 . , , ... Ill ^^^ t""'^'- 
 
 witness swore on the first trial, the nisi prius record and the postea 
 
 indorsed are good evidence to show, that a cause was brought on 
 
 for trial, or that it was actually tried. (4) (i) 
 
 Secondly, hearsay is often admitted in evidence, as constituting Hearsay, part 
 P , . 1 • I • 1 1 • c • • I of the trans- 
 
 a pari ot the transaction whicii is the subject oi inquiry; the action. 
 
 meaning of which seems lo be, that where it is necessary in the 
 course of a cause to inquire into the nature of a particular act, or 
 the intention of ihe person who did the act, proof of what the per- 
 son said at tiie time of doing it, is admissible in evidence, for the 
 purpose of showing its true character. ( j) Thus, for example, Declaration o' 
 in an aciion by the assignees of a bankrupt, the declarations of gentin„_ 
 
 (1) Green v. GaturU, Bull. N. P. (3) Ennis v. Domisthorne, Cornw. 
 243. Sum. Ass. 17S9, MS. Lord Kenyon 
 
 (2) Lord Palmerton's case, cited cited the case of the King v. Debo- 
 by Lord Kenyon, in R. v. Joliffe, 4 rah, from one of his own notes. 
 
 T. R. 280. (4) Pitton v. Walter, 1 Str. 162. 
 
 (g) See Note 441, p. 576, (A) See Note 442, p. 578. (f) See Note 443, p. 586. 
 ( ;■) See Note 444, p. 585.
 
 232 Hearsay not Evidence. [Ch. 7. 
 
 Part of res the trader at the time of his absenting himself from home, or im- 
 
 mediately subsequent, are properly received in evidence, to show 
 
 the motive of his absence: for it is the intent with which he de- 
 parted from his dwelling-house, that constitutes the act of bank- 
 ruptcy. (1) {k) 
 
 In making A Statement by a purchaser of goods at the time of the pur- 
 purchases. , 1 • ■ • • I ■ 1 1 , . 
 
 cnase, as to his intention \n making the purchase, is admissible, m 
 
 an action by the assignees of a bankrupt, when the question is, 
 
 whether the person sought his living by buying and selling. (2) 
 
 Statement by For the same reason, letters written by the payee of a promisso- 
 payee of note. ,.y pQjg (q {[^g niaker, contemporaneous with the making of the 
 note, and forming a part of the original transaction, are admissible 
 in evidence, to prove the consideration passing beiween the par- 
 ties; and this also in an action by the indorsee against the mak- 
 er. (3) It cannot be more necessary to call the parly who wrote, 
 than, in the case of a verbal agreement, to call the party who 
 spoke the words. A written agreement is proved by the writing, 
 as a verbal agreement may be proved by a witness who heard the 
 parties agree. (Z) 
 
 Statement in I" 'he case of Thompson and wife against Trevanion, which 
 receiving per- ^ygg ^^ action of Trespass and assault, Lord C. J. Holt allowed 
 
 sonal injury. ... 
 
 what the wife said, immediately on receiving the hurt, to be given 
 in evidence. (4) Inquiries by medical men, with the answers to 
 such inquiries, are evidence of the state of health of the patient at 
 the lime; such evidence is admissible from the very nature of the 
 thing. (5) And it is in every day's experience, that what a man 
 has said of himself to his surgeon, is evidence in an action of as- 
 sault, to show what he has suffered by reason of the assault. (6)(w) 
 
 (1) Ambro.se V. Clindon, Rep. temp. Hathaway, 14 Howell's St. Tr. 654. 
 Hard. 267. Marsh v. Meager, 1 Du Bost v. Beresford, 2 Campb. 512. 
 Starkie, N. P- C 353. See on this Collenridge v. Farqiiharson, 1 Star- 
 Bubject, vol. 2, part 2. kie, N. P. C. 261. Bull. N. P. 17. 
 
 (2) Gale v. Halfknight, 3 Starkie, (4) Skinn. 402, cited by Lord El- 
 N. P. C. 58. lenborough in 6 East, 193. 
 
 (3) Kent v Lowen, 1 Campb. 177. (5) By Lord Ellenborough, 6 East, 
 180, d. For other examples in illus- 195. 
 
 tralion of the same rule, see Rex v. (6) By Lawrence, J., 6 East, 198. 
 
 (fe) See Note 445, p. 586. (/) See Note 446, p. 587. (m) See Note 447, p. 58T.
 
 Sect. 7.] Hearsay not Evidence. 233 
 
 In the case of Aueson v. Lord Kinnaird, (1) (where, in an action f^i"' ofresges- 
 
 on a poHcy of insurance of a life, in order to ascertain whether the 
 
 deceased was in a good state of heahhonthe day of the insurance, Representation 
 . I -1 •! 1^1 »^riii II of deceased as 
 
 it became material to consider wliat the state ot health was both to state of 
 
 before and after that day,) the account, which the deceased gave health. 
 some days after obtaining the certificate of good heahh, respecting 
 her state on the former day, was admitted at the trial, as evidence 
 on the part of the defendant; and the Court of King's Bench were 
 of opinion, that it had been j)roper]y admitted. The Judges held 
 the evidence unexceptionable, on general principles, as the account 
 of the deceased concerning her existing state of health, which was 
 ihe subject of inquiry; they considered it admissible also in anoth- 
 er point of view, for, as the surgeon, who had given the certificate, 
 and who was called as witness on the part of the plaintiff, had 
 formed his opinion of the state of health of the deceased principal- 
 ly from the answers she had given to his inquiries, it was only a 
 species of cross-examination of the same witness, to shew, from 
 what the deceased had said of herself to another witness very re- 
 cently before, that she was not really well on the day when she 
 gave that account to the surgeon. (2) 
 
 The account given by a person, in answer to the questions of a Effect of such 
 medical man, it is to be observed, is evidence of complaints and evidence, 
 symptoms, and of what the person suffers from his bodily state, 
 when an inquiry into such particulars is material ; but it is not ev- 
 idence to charge another person as the cause of those sufferings, 
 nor is such an account any evidence of the truth of tiie statement. 
 In prosecutions for a rape, it is the common practice, and is strict- indictment for 
 ly regular, to inquire whether the woman made a complaint a- ""''P^- 
 gainst the prisoner, recently after the injury; (n) but the particu- 
 lars of the complaint, stated by her on the former occasion, are 
 clearly not admissible as evidence of the truth of her statement. 
 That statement having been made in the absence of the prisoner, 
 cannot be used as evidence against him; nor can it be admitted as 
 evidence in confirmation of her statement at the trial. (3) 
 
 (1) 6 East, 188, 198. 444. R. v Clarke, 2 Starkie, N. P. C. 
 
 (2) 6 East, 195, 197, 198. 242 
 
 (3) Brazier's case, 1 East, P. C. 
 
 (ti) See Note 448, p. 5S7. 
 
 Vol. I. 30
 
 234 
 
 Hearsay not Evidence, 
 
 [Ch. 7. 
 
 Part of ret 
 
 gesta. 
 
 Principle of 
 rule. 
 
 Exceptions. 
 
 In an action for criminal conversation, where the defence was, 
 that the plaintiff had connived at his wife's elopement, evidence 
 was received, on the part of the plaintiff, of the wife's declarations 
 as to her intention and purpose in going; (1) for the question in ef- 
 fect was, whether the husband knew that she was about to elope, 
 or whether he believed that her intention was as she represent- 
 ed, (o) 
 
 What a third person has said or written is admissible, in many 
 cases, as amounting to an act done by him, or as showing his 
 knowledge, or as evidence of his conduct. If, for instance, it is 
 material to inquire, whether a certain person gave a particular or- 
 der on a certain subject, what he has said or written may be evi- 
 dence of the order; (p) or where it is material to inquire, whether 
 a certain fact, be it true or false, has come to the knowlccl ro of a 
 third person, what he has said or written may as clearly bl.ovv his 
 knowledge, as what he has done. Where it is relevant and mate- 
 rial to inquire into the conduct of rioters, what has been said by any 
 of the party in the act of rioting must manifestly be admissible in 
 evidence, as showing their design and intention, {q) On a charge 
 of larceny, where the proof against the prisoner is, that the stolen 
 properly was found in his possession, it wouKl be competent to 
 show, on behalf of the prisoner, and a third person Icfi the proper- 
 ly in his care, saying that he would call for it again afterwards; 
 for it is material, in such a case, to inquire, rnder what circum- 
 stances the prisoner first had possession of the property. And a va- 
 riety of other instances might be mentioned of a similar nature, (r) 
 
 There are certain exceptions to the general rule on the subject 
 of hearsay, which are perhaps as ancient as the rule itself, and have 
 been allowed, either because the inconvenience and danger, com- 
 monly attending such evidence, are not likely to occur in the ex- 
 cepted cases, or because greater inconvenience would result from 
 its exclusion than from its admission. 
 
 The exceptions are here considered, in the following order. 
 First, as to dying declarations. Secondly, as to hearsay in ques- 
 
 (1) Iloare V. Allen, 3 Esp. N. P. C. motion for a new trial, were of opinion, 
 276, before Ld. Kenyon on second trial, that this evidence ouglit to be admitted, 
 who said, that some of the judges, op the And seo 6 East, 193, by Ld. Eilenborough. 
 
 (o) See Note 449, p. 5S7. {^) See Note 450, p. 588- (5) See Note 451, p. 583. 
 (r) See Note 452, p. 589.
 
 Sect. 7. J Hearsay not Evidence. 235 
 
 tions of pedigree. Thirdly, as to hearsay on questions of public Dying Jeclara- 
 
 right, customs, boundaries, &c. Fourthly, as to ihe admissibility .* 
 
 of old leases, rent-rolls, surveys, &c. Fifthly, as to the admissi- 
 bility of declarations against interest. Sixthly, as to the admissi- 
 bility of rectors' and vicars' books. Seventhly, and lasily, as to 
 the admissibility of the books of tradesmen. 
 
 First, as tg the admissibility of dying declarations. 
 
 The dying declarations of a person, who has received a mortal Dying declara- 
 injury, that is, declarations made under the apprehension of death, ^'°°"- 
 are constantly admitted in criminal prosecutions, when the death 
 of the deceased is the subject of the charge against the prison- 
 er. (!) The principle of this exception to the general rule is 
 founded partly on the awful situation of the dying person, which is Prosec. for 
 considered to be as pov/erful over his conscience as the obligation '""'■'^^■■• 
 of an oath, and partly on a supposed absence of interest on the 
 verge of the next world, which dispenses with the necessity of 
 cross-examination. 
 
 Before such declarations can be admitted in evidence against a Sense of dan- 
 prisoner, it must be satisfactorily proved, that the deceased, at the S^""* 
 time of making them, was conscious of his danger, and had given 
 up all hope of recovery. This consciousness of approaching death 
 is to be collected either from the circumstances of the case, (as, 
 from the nature of the wound and the state of body,) or tVom ex- 
 pressions used by the deceased. (2) And it has been decided by 
 all the Judges, that the question, whether the deceased made the 
 declarations under the apprehension of death, is a question for the 
 Judges, not for the jury to determine, previous to their admis- 
 sion. (3) (s) 
 
 (1) Lord Mohan's case, 12 Howell, (2) Woodcock's case, 2 Leach, Cr. 
 
 St. Tr. 966. R. v. Reason and Tran- C. 566. Dingler's case, ib 633. John's 
 
 ter, 1 Str. 499. 6 St. Tr 202—205, case, 1 East, PI. Cr. 357. 
 
 S. C 16 Howell, St. Tr. 26. Wood- (3) By the opinion of all the judges, 
 
 cock's case, 2 Leach, Cr. C 566. in John's case, I East, PI. Cr. 357, 
 
 Bambridge's case, 9 St. Tr. 161, S. C. and in Welboroe's case, I East, PI. 
 
 14 Howell's St. Tr. 417. Tinkler's Cr. 359. In Woodcock's case, which 
 
 case, 1 East, P. C. 354. The same was before the two last, this question 
 
 rule has been at all times adopted in had been left to the jury by Eyre, C. 
 
 Scotland ; see Hume's Commentaries, B., 1 East, PI. Cr. 360. 
 ▼ol. 2, 391. 
 
 (*) See Note 455, p. 606.
 
 236 Hearsay not Evidence. [Ch. 7. 
 
 Dying declara- TIic declaration of a subscribing witness to a bond, who in his 
 ', dying moments begged pardon of Heaven for having been con- 
 Witness to cerned in foraiins; the bond, was admitted, by Mr. Justice Heath, (I) 
 
 bond or will. => ^ ' . ^ ,^, . , i i 
 
 as evidence of the forgery, on the authority of Wright on the de- 
 mise of Clymer v. Littler, (2) where similar evidence of a dying 
 confession, by a subscribing witness to a will, had been received 
 by Chief Justice Willes, and afterwards approved by the Court of 
 King's Bench. 
 
 With the exception of tins case, the general rule respecting the 
 admissibility of dying declarations is, that they are admissible on- 
 ly in criminal prosecutions, where the death of the deceased is the 
 Question of subject of the charge against the prisoner. On a question of pedi- 
 pcdigree gree, in an action of ejectment, it has been lately determined, that 
 
 the dying declarations of a person, as to the relationship between 
 the lessor of the plaintiff and the person last seised of the premises 
 in question, (the deceased not being himself a relation, nor in any 
 manner connected v^ith the parties,) cannot be received in evi- 
 dence. (3) 
 
 After attain- '^^^^ declarations of a criminal at the lime of his execution, can- 
 
 cer, not be received on the trial of an accomplice; for, after attainder, 
 
 he could not have been sworn as a witness; (4) {t) and, independ- 
 ently of this objection, this would not be admissible, on the gene- 
 ral principle. 
 
 Not evidence The dying declarations of a prosecutor, in an indictment for 
 in other prose- penury, cannot be used in showing cause against a motion for 
 
 cutions. .,,N 111 1 1 1 -J 
 
 a new trial : (5) nor could they have been used as evidence at 
 the trial. On a prosecution for administering drugs to a wo- 
 man pregnant, but not quick with child, with intent to procure 
 abortion, the dying declarations of the woman have been held 
 
 (1) Cited by Lord Ellenborough, in (4) Drummond'a case, 1 Leach, Cr. 
 Aveson v. Lord Kinnaird, 6 East, 195. C 378 ; 1 East, Pi. Cr. 353, S. C. 
 
 (2) 3 Burr. 1244, 1255. 1 Blac. In the earlier state trials, the exami- 
 Rep. 346, S. C. See 4 Barn. & Aid. nation of convicts were not unfre- 
 44_ quently used in evidence against per- 
 
 (3) Doe dem. Sutton v. Ridgway, sons charged with the same offence. 
 
 4 Barn. & Aid. 53. (5) R. v. Mead, 2 Barn. & Cress. 
 
 605. 
 
 (0 See Note 454, p. 609.
 
 Sect. 7.] Hearsay not Evidence. 237 
 
 not to be admissible. (1) So, also, in trials for robbery, the dying Dying declara- 
 declarations of the party robbed. (2)(tt) '""^ " 
 
 Dying declarations have been admitted in evidence, although it q^enrwrilteT 
 appeared that the deceased made a subsequent statement, which declarations, 
 had been taken in writing before a magistrate, but the written ex- 
 amination was not ready to be produced at the trial. This point 
 was much discussed on the trial of Reason and Tranter, under the 
 following circumstance: (3) — The deceased stated the particulars 
 of the injury, which occasioned his death, at three several times 
 in the course of the same day, with an interval of about an hour 
 between each: the first and last account had not been written; 
 the second was reduced into writing, in the presence of a magis- 
 trate, by the same person to whom the former account had been 
 given; this written statement was retained by the magistrate, and 
 as he had removed to a distant part of the country, and it was not 
 known to what place, the original was not produced, and an ex- 
 amined copy was rejected. An argument then ensued with re- 
 spect to the admissibility of the first statement of the deceased. 
 The Chief Justice (Sir John Pratt) was of opinion, that evidence 
 of the first and third statement ought not to be received, consider- 
 ing all three as statements to the same effect, and forming one en- 
 tire narrative, of which the written examination was the best proof. 
 But the other Judges (4) were of a different opinion; they held, 
 that the three accounts given by the deceased were distinct facts, 
 and that there was no reason to exclude the evidence as to the 
 first and third declaration, because the prosecutor was disabled 
 from giving an account of the second. The witness was there- 
 fore directed to repeat his evidence, laying the examination before 
 the justices out of the case; and the first, as well as the third 
 statement was admitted, {v) 
 
 (1) By Bayley, J. in R. v. Hutchin- one of the counsel for the prosecution, 
 son, 2 Barn. & Cress. 608, n. (a). From the report in the State Trials, it 
 
 (2) By Mr. Justice Bayley on the would appear, that the Chief Justice and 
 northern Spring circuit, 1822. And by Mr. Justice Powis were against receiving 
 Best, C. J. on the midland Spring cir- the evidence; and Mr. Justice V.yxe and 
 cuit, 1822. Mr. Justice Fortescue for receiving it. 
 
 (3) 6 St. Tr. 202— 205, S. C. 16 The evidence, however, according to that 
 Howell's St. Tr. 31. 1 Str. 499, S. C. report, was at last received. 
 
 (4) 1 Str. 500. The reporter was 
 
 (w) See Note 455, p. 610. (v) See Note 459, p. 611.
 
 238 
 
 Hearsay not Evidence, 
 
 [Ch. 7. 
 
 fn case ot As llie declarations of a dying man are admitted, on a supposi- 
 
 ^^ '°'^^^" tion that, in his awful situation on the confines of a future world, 
 he had no motives to misrepresent, but, on the contrary, the strong- 
 , est motives to speak without disguise and without malice, it ne- 
 
 cessarily follows, that the party, against vvhom they are produced 
 in evidence, may enter into the particulars of his state of mind and 
 Characterof of his behaviour in his last moments: or may be allowed to show, 
 that the deceased was not of such a character, as was likely to be 
 impressed by a religious sense of his approaching dissolution, (w) 
 
 On question of Secondly, with regard to hearsay on questions of pedigree. 
 
 Pedigree. 
 
 On inquiring into the truth of facts which happened a long time 
 ago, the Courts have varied from the strict rules of evidence appli- 
 cable to modern facts of the same description, on account of the 
 great difficulty of proving those reniote facts in the ordinary man- 
 ner by living witnesses. (1) On this principle, hearsay and reputa- 
 tion (which latter is the hearsay of those who may be supposed to 
 have known the fact, handed down from one to another) have 
 Relationship, been admitted as evidence in cases of pedigree. (I) (x) Thus, dec- 
 larations of deceased members of a family are admissible evidence 
 to prove relationship: as, who was a person's grand-fttther, or 
 whom he married, or how many children he had, or as to the time 
 of a marriage or of the birth of a child, and the like, of which it 
 cannot be reasonably presumed, that better evidence is to be pro- 
 cured. In ancient times, while the feudal system prevailed, great 
 facilities of establishing descents were afforded by means of inqui- 
 sition post mortem. The heads of families, upon these occasions, 
 made solemn declarations, which were preserved as niatter of rec- 
 ord. (2) But, these having now grown into disuse, it is often 
 extremely difficult to prove a pedigree; and recourse must be 
 had, from necessity, to the best evidence that the nature of the 
 subject will admit. In a late case, proof by one of the family, 
 that a particular person had many years before gone abroad, 
 
 (1) By Le Blanc, J. in Hingham v. the opinions of the Judges in the Berke- 
 
 Ridgway, 10 East, 120. And see the ley peerage case, 4 Cainpb. 404 — 421. 
 
 Lord Chancellor's judgment in the case Bull. N. P 295. 
 of Vowels V. Young, 13 Ves 143; and (2) 13 Ves. 145. Bull. N. P. 294. 
 
 Marriage 
 Birth. 
 
 Death. 
 
 (w) See Note 457, p. 611. (a) See Note 468, p. 612.
 
 Sect. 7.] Hearsay not Evidence. 239 
 
 and was supposed to have died there, (y) and that the witness had In case of 
 
 not heard in the family of his having married, (z) was considered ^^ '° 
 
 by the Court of King's Bench good /jnma/acie evidence of the per- 
 son's death without lawful issue. (1) 
 
 It is not, however, every statement or tradition that can be ad- 
 mitted in evidence, (a) " The tradition," said Lord Eldon, in 
 the case of Whitlocke v. Baker, (2) " must be from persons hav- 
 ing such a connection with the party to whom it relates, that it is 
 natural and likely from their domestic habits and connections, that 
 they are speaking the truth, and that they could not be mistaken. 
 Declarations in the family, {b) descriptions in wills, descriptions wills. 
 upon monuments, in Bibles (c) and registry-books, {d) are all ad- Monuments, 
 niitted, upon the principle that they are the natural effusions of a 
 party, who must know the truth, and who speaks upon an occa- 
 sion, when his mind stands in an even position without any temp- 
 tation to exceed or fall short of the truth. 
 
 Descriptions in family Bibles have been mentioned only by way Family books, 
 of example. The admissibility of such entries, it is scarcely neces- • 
 sary to observe, can in no degree depend upon the circumstance 
 of their being inserted in the family Bible, though on that account 
 the statement may be entitled to greater consideration. A memo- 
 randum inserted in any other book by one of the fan.ily, may be 
 given in evidence. So, a will by an ancestor is evidence on a ques- '^'''• 
 lion of pedigree, (though it be found cancelled, and not known to 
 Ijave been proved or acted upon,) if it appears to have been treated 
 as a paper relating to the faniHy. (J) And recitals in family deeds, (e) Deeds, 
 monumental inscriptions, engraviugs on rings, old pedigrees hung g^" ' ° * 
 up in a family mansion, and the like, (in which it is improbable 
 that a description would be suffered to continue, if erroneous,) are 
 all of them admissible upon the same principle. (4) 
 
 Declarations made by a deceased husband, as to the legitimacy Whuse state- 
 of his wife, are evidence, though he was not related to her by 
 
 (1) Doe dem. Banning v. Griffin, (3) Doe dem. Johnson v. Lord 
 15 East, 293. Doe dem. George v. Pembroke, 11 East, 505. 
 
 Jesgon, 6 East, 80. (4) 13 Ves. 144. Bull. N. P. 233. 
 
 (2) 13 Vcs. 514. Edwards v. Har- Cowp. 5H- 10 East, 120. 
 vey, I Cooper, Ch. Rep. SD. 
 
 (y) See Note 459, p. 613. (z) See Note 460, p. 615- (a) See Note 461, p. 615. 
 (6) See Note 461, b. 615. (c) See Note 463, p. 615. (<i) See Note 464, p. 616. 
 (e) See Note 465, p. 616.
 
 240 Hearsay not Evidence. [Ch. 7. 
 
 In case of blood; for the liusband must be supposed to have more intimate 
 
 pedigre e. knowledge on that subject, than a distant relation, (1) But the 
 
 opinion of deceased neighbors, or of servants, or of mere acquaint- 
 ances, not connected with the family, are not evidence on a ques- 
 tion of pedigree; (2) nor is the hearsay of a relative to be admitted, 
 when the relative himself can be produced. (3) (/) 
 
 f\r^^. „„= ; , The declarations of a deceased relative are admissible, notwith- 
 Oi persons m ' 
 
 puri jure. standing that, if he were alive, he would stand in puri jure, with 
 the party, on whose behalf such evidence is tendered, and have 
 the same right to recover. (4) {g) In a case of title to a peerage 
 before the House of Lords, a widow was allowed to prove the dec- 
 larations of her deceased husband in support of her son's title, 
 though the husband, if living, would have had the right, which 
 the declarations went to establish; and this has been followed ever 
 since. Such observations are admissible, though subject to obser- 
 vation. (5) 
 
 Time of birth. On a question, whether a testator at the time of making his will 
 was of full age, a written memorandum by his deceased father, 
 stating the time of his birth, has been admitted to be good evi- 
 dence. (6) Here the controversy was not, as in a question of pedi- 
 gree, from what parents he derived his birth, but at what precise 
 time an undisputed birth had happened. Still, however, the ob- 
 servation, before made, applies to this sort of evidence, namely, that 
 the father had peculiar means of knowing the fact in dispute with- 
 out any interest to misrepresent it, and the fact itself was not a 
 matter of notoriety, but necessarily lying within the knowledge of 
 a few individuals of the family, (h) So, on a question of legitima- 
 
 Legitimacy. cy, the declarations of deceased persons, supposed to have been 
 married (who might themselves be examined, if alive,) are admis- 
 sible to disprove the fact of marriage. (7) (i) 
 
 (1) Vowels V. Young, 13 Ves. 148. (4) Doe dem. Tilman v. Tarver, 1 
 Doe denn. Northey v. Harvey, 1 Ry. & Ry. & Mo. 141. 
 
 Mo. 297. (5) By Lord Tenterden, C J., 1 Ry. 
 
 (2) 13 Ves. 147, 514. IS Ves. 443, & Mo. 142. 
 
 446. 3 T. R. 723. 1 Maule & Selw. (6) Herbert v. Tuckal. Tr. at bar, 
 
 689. 14 East, 330. Johnson v. Law- Sir T. Raym. 84, cited in Brune v. 
 
 son, 2 Bing. 86. Rawlins, 7 East, 299; and see 10 
 
 (3) Pendrel v. Pendrel, 2 Str. 924. East, 120. 
 
 Bull. N. P. 113. Harrison V. Blades, (7) R. v. Bramley, 6 Tr. R. 330. 
 3 Camp. 457. May v. May, 1762, Tr. at bar, Bull. 
 
 N.P. 112, 
 
 (j ) See Note 466, p. 617. (g) See N»le 467, p. 621. (A) See Note 468, p. 621. 
 (t) See Note 469, p. 622.
 
 Sect. 7.] Heccsai/ not Evidence. 2-il 
 
 Frotn analogy to the case iust ineiiiioiied (in which the decla- Declarations 
 
 . , . , ^ , . f . post litem 
 
 rations of a parent liave been received as evidence of the tune of the motam. 
 
 child's birth,) tlie declaration or written meaiorandum of a deceas- Time of birth 
 ed surgeon, respecting the time of a birth at which he attended, 
 appears to be evidence, as having been made on a matter peculiar- 
 ly within his knowledge. (1) (j) 
 
 The declarations of a deceased parent, though they are evidence pi^cg of birth, 
 of the time of a child's birth, will not be admitted as evidence of 
 the place of the birth. (2) " The point in dispute," said Lord Ellen- 
 borough, in a case where tiie admissibility of such evidence was 
 discussed, " turns on a single fact involving only a question of lo- 
 cality, and, therefore, not falling within the principle of the rules 
 applicable to cases of pedigree." (&) 
 
 Nor can the declarations of a father or mother be received, after Want of ac- 
 their deaths, to prove the want of access, so as to bastardize a child 
 during the marriage ; for they could not be examined to that fact, 
 if alive; (3) and, even if that objection were removed, still the case 
 would not come within the principle on which such hearsay evi- 
 dence can be made an exception to the general rule; as want of 
 access, (4) implying the continued separation of the parties, must be 
 notorious to the whole neighborhood, where they have resided, and 
 is, therefore, capable of more satisfactory proof. [1) 
 
 The declaration of a deceased person, as to having been reliev- Relief, hiring, 
 ed by a parish, (5) or as to having been hired for a year, (6) are 
 manifestly not any evidence of those facts, on an appeal against 
 an order of removal, (m) 
 
 The declarations of a deceased member of the family, on a ques- Declarations 
 tion of pedigree, are not to be admitted, unless, as was before men- ^oi^^^"^ 
 tioned, they have been made under circun)stances, when the nar- 
 
 (1) See 10 East, 120, and Vin. Ab. fe, 8 East, 203. R. v. Ken, II East, 
 Ev. T. b. 91. 133. 
 
 (2) R. V. Erith, S East, 542. (4) Bull. N. P. 113. 
 
 (3) R. V. Reading, Rep. temp. (5) R. v. Chadderton, 2 East, 29. 
 Hard. 79. Stapleton v. Stapleton, ib. (6) R. v. Neuneham Courtney, 1 East, 
 277. Bull. N. P. 113, S. C. Ste- 373. R. v. Ferry Frislone, 2 East, 55. 
 vans V. jMoss, Cowp. 592. R. v. Luf- R. v. Aberwilly, 2 East. 63. 
 
 (j) See Note 470, p. 623. {k) See Note 471, p. 624. (Z) See Note 472, p. 624. 
 (m) See Note 473, p. 625. 
 
 Vol. I. 31
 
 242 Hearsay not Evidence. [C 
 
 1. /. 
 
 Declarations rative may be supposed to be witbout interest and vviibout bias. 
 
 post litem •' ^^ ... 
 
 motam- If tbey were made on a subject in dis|)utc, after the commencc- 
 
 ment of a suit, or after a controversy preparatory to one — or if 
 made respecting some matter, on wbicb a controversy existed at 
 the time — tbey ought not to be received in evidence, on account 
 of the probability, that they were partially drawn from the deceas- 
 ed, or, perhaps, intended by him, to serve one of the contending 
 parties. (J) 
 
 There has been s^me difference of o|)inion on this subject. In 
 a case reported in Viner's Abridgment, (2) Ch. B. Reynolds re- 
 fused to admit declarations, which had been made at a time when 
 the point had become the subject of controversy. On the other hand, 
 such evidence was received by Lord Camden; (3) and Lord Mans- 
 . field, in the case of Stevens v. Moss, (4) was of opinion, that an 
 answer* by a deceased mother to a bill filed against her, staling 
 the time of a child's birth, might be admitted as evidence on the 
 footing of a declaration. On the trial of the cause, Mr. Baron 
 Eyre rejected this answer, together with the general declarations 
 of the father and mother; in consequence of which, an applica- 
 tion was made to the Court of King's Bench for a new trial. Lord 
 Mansfield, on that occasion, considered the rejection either of the 
 general declarations, or of the answer, to be a sufficient ground for 
 a new trial: but he adverted more particularly to the former: and 
 it does not appear from the report, that he laid any great stress on 
 the rejection of the answer. Mr. Justice Aston concurred with 
 
 (1) Cases infra. rence J. in the Berkeley peerage case; 
 
 (2) Dev. Sp. Ass. 1731, Vin Ab Ev. and see Nichols v. Parker, 14 East, 
 [T. b. 91.] 331, n. 
 
 (3) Havward v. Firmion. Sitt. after (4) Covvp. 5.01. 
 Trin. Term, 1766; cited by Law- 
 
 * The answer is described by the leporter of this rase as an answer in Chance- 
 ry. It appears from an it;quiry, which was n'ade in the case of the Berkeley peer- 
 age, that proceedings had lieen inslituled in the Court of Chcsnccry, and that after- 
 wards a bill was filed in the Excheqiu-r by the younger son. claiming as a legiti- 
 mate child, against the mother, who was adiiiiiiistratiix of her deceased husband. 
 The mother in her answer averred, that the complainant was born before marriage 
 and illegitimate. Now, as she was entitled as adnjinistratrix to a distributive share 
 of the husband's effects, and was therefore interested to defeat the right of any other 
 persons, who might claim a part under the di.sftibiition, her answer most clearly 
 ought not to have been admitted. This objection, however, was not adverted to; 
 nor does it seem to have occurred, that the statement in the answer wa.s inadmissi- 
 ble, as having been made after the commencement of a suit.
 
 Sect. 7.] Hearsay not Evidence. 243 
 
 Lord Mansfield in opinion, that the general declarations ought to Declarationa 
 
 ... , . post litem 
 
 have been admitted, but delivered no opmion on the other point, moiam. 
 
 Thus, the authorities on this subject appear to have been, at one 
 
 time, nearly evenly balanced. 
 
 The rule on this subject appears to be now settled by the opin- Berkeley 
 ions delivered by the judges in the'case of the Berkeley peerage P®^"^*^® *^"°' 
 claim. (1) A question was, on that occasion, proposed to the Judg- 
 es, in the following terms : (2) " Upon the trial of an ejectment 
 respecting Black Acre between A. and B. (in which it v.'as neces- 
 sary for A. to prove that he was the legitimate son of J. S.,) A., 
 after proving by other evidence that J. S. was his reputed father, 
 offered to give in evidence a deposition made by J. S. in a cause in 
 Chancery, instituted by A. against C. D. in order to perpetuate 
 testimony to the alleged fact (disputed by C. D.,) that he was the 
 legitimate son of J. S., in which character he claimed an estate in 
 remainder in White Acre, which was also claimed in remainder by 
 C. D. B., the defendant, in the ejectment, did not claim Black 
 Acre under either A. or C D., the plaintiff and defendant in the 
 Chancery suit. According to law, could the deposition of J. S. be 
 received in evidence upon the trial of such ejectm'ent against B., as 
 evidence of declarations of J. S., the alleged father, in matters of 
 pedigree .'*" The Judges who were present afterwards stated their 
 opinions at length, and with only one dissentient voice, agreed in 
 considering the deposition of J. S. to be inadmissible. Mr. Justice 
 Lawrence delivered his opinion in the following terms : (3) " The 
 declarations of members of the family, in matters of pedigree, are 
 generally admitted from the necessity of the case; but the admin- 
 istration of justice would be perverted, if such declarations could be 
 admitted, which have not a presumption in their favor, that they 
 are consistent with truth. Where the relator had no interest to 
 serve, and there is no ground for supposing that his mind stood oth- 
 erwise than even upon the subject (which may be fairly inferred 
 
 (1) May 13, 1811, RiS. 4 Campb. (2) May 2, 1811, M. S.tSee also 
 
 401, S. C. See also the case of the Banltury peerage case, 2 Sefw. N. P. 
 
 Banbury peerage claim, 1S09, 2 Selvv. 731 — 736; and infra, part 2, ch. 4, 
 
 W. P. 731. 1 Simon and Stewart's s. 1. 
 
 Rep. 163, S. C. Doe dern. Tilii:an (3) 4 Campb. 409. 
 V, Turner, 1 Ry. & Mo. 142.
 
 244 Hearsay not Evidence. [Cli. 7. 
 
 Declarationi before any dispute upon it has arisen,) vve may reasonably suppose, 
 Y.otam. that he neither stops sliort, nor goes beyond the hmits of truth, in 
 
 his spontaneous declarations respecting his relations and the state 
 of his family, 'i'he receiving of these declarations, therefore, 
 though made without the sanction of an oath, and without any 
 opportunity of cross-examination, may not be attended with such 
 mischief as the rejection of such evidence, which in matters of ped- 
 igree would often be the rejection of all the evidence that could be 
 oftered. But mischievous indeed would be the consequence of 
 receiving an ex parte statement of a deceased witness, although 
 upon oath, procured by the party who would take advantage of it, 
 and delivered under that bias which may naturally operate on the 
 mind in the course of a controversy upon the subject. Notwith- 
 standing what is said in the case of Stevens v. Moss, I cannot think 
 that Lord Mansfield would have held, that declarations in matters 
 of pedigree, made after the controversy had arisen, ought to be sub- 
 mitted to the jury. They stand precisely on the same footing as 
 declarations on questions of rights of way, rights of common, and 
 other matters depending upon usage ; and although I cannot call 
 to mind the ruling of any particular Judge upon the subject, yet I 
 know that according to my experience of the practice (an experi- 
 ence of nearly forty years,) whenever a witness has admitted, that 
 what he was going to state he had heard after the beginning of a 
 controversy, his testimony has been uniformly rejected. If the 
 danger of fabrication and falsehood be a reason for rejecting such 
 evidence in the cases of prescription, that will equally apply in cases 
 of pedigree, where the stake is generally of much greater value." 
 Then, after referring to the decided cases, the learned Judge added, 
 " The authorities being thus balanced, I think the point must be 
 considered as without any decision, and we must resort to principle 
 and the uniform practice, which has obtained in questions of pre- 
 scription. Hardships may arise in rejecting declarations made be- 
 tween the commencement of the suit and the time of the trial; but 
 such hardships are not confined to the case of pedigree. In other 
 cases, if witnesses die before the trial of the cause, the party, who 
 relied upon their testimony, must sustain the loss. For avoiding 
 uncertainty injudicial proceedings, general rules must be laid down 
 and adhered to, without regard to our feelings or our wishes on 
 particular occasions. Besides, the hardship may generally be avoid-
 
 Sect. 7.] Hearsay not Evidence. '2i5 
 
 ed bv a bill to perpetuate testimony. Altliou2:Ii the exclusion of Declarations 
 
 •' "^ ' . post litem 
 
 declarations made in the course of the controversy may prejudice moiam. 
 
 some individuals, it is better to submit to this inconvenience than 
 expose courts of justice to the frauds which would be practised up- 
 on them if a contrary rule were to prevail. That this is not an 
 imaginary apprehension, will appear from what happened in the 
 Douglas and Anglesea causes; in the first of which, fabricated let- 
 ters were given in evidence; and in the second, false declarations. 
 Notwithstanding the danger of incurring the penalties of the 
 crime of perjury, there is scarce an assize or sittings in which wit- 
 nesses are not produced, who swear in direct contradiction, the 
 one to the other; and it may be feared, that persons, who have as 
 little regard to truth, may be induced to make false declarations, 
 when they run no risk of punishment in this world, as no use can 
 be made of their evidence till after their death. We know that 
 passion, prejudice, party, and even good-will, tempt many, who 
 preserve a fair character with the world, to deviate from the truth, 
 in the lax'ity of conversation. Can it be presumed that a man 
 stands perfectly indifferent, upon an existing dispute respecting his 
 kindred.'' His declarations ]305f Zi7em mo<a?n, not merely after the 
 commencement of the law-suit, but after the dispute has arisen (that 
 is the primary meaning of the word lis,) are evidently more likely 
 to mislead the jury, than to direct them to a right conclusion, and, 
 therefore, ought not to be received in evidence. I am likewise of 
 opinion, that no deposition can be received in evidence as a decla- 
 ration, to prove a fact which it was the object of that deposition to 
 establish. A deposition is the answer of the witness to such in- 
 terrogatories as it is thought expedient to put to him, to establish 
 certain facts which the plaintiff alleges, and on which the case 
 depends. Consequently, a deposition is considered a partial repre- 
 sentation of facts, as to all persons who have no opportunity of 
 bringing out the whole truth by cross-examination; and on that 
 account, all admit, that, against a stranger, it cannot be received 
 in evidence as a deposition. How then siiall it be received as a dec- 
 laration.^ In that case, the circumstance of its being upon oath 
 cannot be regarded. To consider ii a declaration on oath, would 
 be to receive it as a deposition. As a declaration, it is still subject 
 to the same vice and infirmity, of being an answer to particular
 
 24G Hearsay not Evidence. [Cl». 7. 
 
 Declarationa questions artfully put, vviih an interested view, by one party 
 
 post litem behind the back of the other. All the objections, on which it is 
 motam. J ' 
 
 ■ — • allowed that this document cannot be received as a deposition, 
 
 apply, with at least equal strength, to receiving it as a decla- 
 ration." 
 
 Award. In a later case also, at 7iisi prius^ where the question was, 
 
 whether the occupier of a particular farm was liable to the repair 
 of a public road, and to prove the affirmative, an award was 
 produced (which had been made some years before, when the 
 same question was the subject of dispute between a former oc- 
 cupier, and the township where the lands were situated,) this ev 
 idence was rejected as inadmissible; on the ground, that the 
 account, which the deceased witnesses might have given to the arbi- 
 trator on that occasion, could not have been received, as the 
 declarations were made post litem motam, and that the opinion of 
 the arbitrator, formed upon such testimony, could not be entitled to 
 more credit. (1) 
 
 Custom '^^^^ same princi[)le applies equally to depositions relating to 
 
 manorial customs; which therefore are not admissible in evi- 
 dence, when precisely the same custom, as is the subject-matter 
 of the existing suit, was contested in the former suit, in which 
 
 Deposiiionsin t^e depositions were made. But where the two suits are not 
 
 a former suit ^pon the same custom, the depositions, taken in the former suit, 
 
 upon a differ- ' . • • i • i 
 
 ent custom. are not liable to objection, as bemg made post litem motam; and, 
 
 where the former suit is very ancient, it will be unnecessary to 
 prove the extrinsic evidence, that the witnesses, who made the 
 depositions, were in the situation in which they profess to stand, 
 or that they had the means of becoming acquainted with the 
 customs of the manor. A question of this kind lately occurred in 
 the case of Freeman v. Phillipps; (2) where depositions in an 
 ancient suit, as to a copyhold custom, were adjudged to be ad- 
 Former Buit. missible. The former suit was instituted against the lord of a 
 manor, by a person who claimed to be admitted to a copyhold 
 for lives, upon a custom for any copyhold tenant for life, or lives 
 to change or fill up his lives, paying to the lord a reasonable fine 
 
 (1) R. V. Cotton, 3 Campb. 444, be- (2) 4 Maule & Selw. 486. 
 fore Dampier, J.
 
 Seel. 7.] Hearsay not Evidence. 247 
 
 to he set up by the lord or his steward. The subsequent suit was an Dedaratlona 
 action by a copyholder against a lord of the same manor, and ^°f, "^ 
 the question was, whether there existed in the manor such a 
 
 custom, as liie plaintiff claimed, in respect of copyholds granted 
 for two lives, that the surviving life should renew, paying to the 
 lord such fine as should be set by the homage equal to two years'* im- 
 proved value. It was not proved, farther than by the record itself, 
 that the litigating parties in the former suit were (as they claimed 
 to be) lord and copyholder, or that the persons making the deposi- 
 tions were such as they represented themselves to be in the deposi- 
 tions. These depositions were offered in evidence on behalf of the 
 defendant, as showing, that, at the time of the former suit at least, 
 no such custom as the present was ever set up, but that the cus- 
 tom, which was applicable to all copyholders for lives (and, there- 
 fore, to copyholders for two lives,) was, that the copyholder should 
 renew on payment of a fine to be set by the lord or steward, 
 without fuentioning any thing of the intervention of the homage 
 or jury, and that such intervention was not an ingredient in the 
 custom. The objections against the reading of the depositions Objection, 
 were, first, that the former suit was res inter alios acta: and, sec- 
 ondly, that the depositions were not admissible as declarations, 
 having been made post litem motam. But the Court of King's 
 Bench determined, that the depositions had been properly admitted 
 in evidence. 
 
 Willi respect to the first objection. Lord Ellenborough C. J. said, 
 "Considering these depositions as made in a suit, which may now 
 be said to be lost in remote antiquity, we should give this record 
 but little effect, if we did not attribute to it verity in many of the 
 particular matters which it contains, such as, that the parties liti- 
 gant were clothed with the rights in which they profess to stand, 
 and were agitating the claim put forward on the record. It ap- 
 pears, then, that in 1693 a copyholder of this manor, or a person j^re^^^^^'^^* 
 claiming at least to be a copyholder, was engaged in a suit with 
 the lord, and in the course of that suit produced persons, who ap- 
 pear to have stood in pari jure or eodem jure, and who made their 
 depositions in support of the claim. These depositions I consider 
 to be evidence, as being made by persons standing in pari jure; and 
 so they have been considered at all times. They furnish evidence 
 not only against the parties making them, but against all persons
 
 248 Htarsmj not Evidence, [Ch. 7. 
 
 On question Standing in tlie same relation." And, as to the second objection, 
 or custom^'" ^ ' ^^''- Justicc Le Blanc said, — "One answer to the objection (of their 
 
 bavins; been made post litem molam) is this, that, treatins; the deno- 
 
 Different . . . . ' 
 
 ousiom. sitions as hearsay evidence only, still they are not to be considered 
 
 as made post litem motcnn, because the same thing is not in contro- 
 versy now, that was in controversy in the former suit; the two 
 customs, which gave rise to the two suits, are different. And the 
 strong ground of observation, which arises upon these depositions, 
 is, not that they are evidence of any particular thing, which the 
 witnesses have affirmed, but that, at a time when a dispute existed 
 between the lord and his copyholder concerning the copyholder's 
 right to renew on certain terms, it was never insisted upon as a 
 term, that the fine should be assessed by the jury. I do not see 
 how, in this point of view, it can be said, that this was not evidence 
 applicable to the issue: and it seems also to me to stand clear of 
 objection, either on the ground of its being a declaration made af- 
 ter the commencement of a suit touching the matter in question, 
 or on the other ground, that we ought to look for evidence aliunde 
 to make it admissible." (n) 
 
 Thirdly, as to the admissibility of hearsay evidence on questions 
 of public rights, customs, boundaries, &c. 
 
 publirnahN^" I. In questions concerning public rights, common reputation 
 is admitted in evidence. Such rights, being matters of public no- 
 toriety and of great local importance, become a continual sub- 
 ject of discussion in the neighborhood, where all have the same 
 means of information and the same interest to ascertain the 
 claim. (1) If a question should be raised, whether a corporation 
 has a prescriptive right to collect tolls on a public navigation, it 
 would be good evidence to show, that deceased persons have 
 been heard to acknowledge the right, and to declare that they 
 had been so informed by their predecessors. The same reason 
 applies, in a less degree, to questions respecting general customs, 
 which concern parishes or manors, or the inhabitants of towns 
 and other places. (2) In such cases, general reputation is some 
 
 (1) Morewood v. Wood, 14 East, (2) 14 East, 327. 
 829. See Weeks v. Sparke, 1 Maule 
 & Selw. 679, 685. 
 
 (n) See Note 474, p. 625.
 
 Sect. 7] Hearsay not Evidence. 249 
 
 evidence of a ridit beyond the memory of living witnesses, and On question of 
 o J J !D public right, or 
 
 ihns tends to support the modern usage, (o) custom. 
 
 2. In questions upon a boundary between parishes or manors, (1) bo^unja^ies, ° 
 or on a customary right, (2) (p) or on parochial or manorial cus- customs, &.c. 
 toms, (2) declarations made by deceased persons, who from their 
 situation had the means of knowledge, and no interest to misrep- 
 resent, are admissible in evidence. 
 
 Perambulations are evidence of the extent of a particular parish Perambula- 
 
 ' ' tions. 
 
 or manor; since it may be inferred, that those who perambulated 
 believed the line of their perambulation to be the boundary of the 
 district, and such acts are in some measure an exercise of the 
 right. (3) Such evidence has been admitted from analogy to ca- 
 ses of public rights, in which it is clearly established, that reputa- 
 tion is admissible, (q) 
 
 A right of common by custom is, strictly speaking, a private Connmon. 
 right ; but it is also a general right, and therefore (so far as re- 
 gards the admissibility of this species of evidence) has been con- 
 sidered as public, because it affects a large number of occupiers 
 within a district. But it is to be observed, the evidence is to be 
 confined to what such old persons have said, as were in a situation 
 to know what the rights were: and before a customary right can 
 be proved by such evidence, a foundation ought to be laid by show- 
 ing an exercise of the right, or acts of enjoyment within the period 
 of living memory ; it is the exercise of the right that lets in the 
 evidence of reputation. (4) Where, indeed, the subject-matter does 
 not admit of acts of enjoyment or the exercise of a right, there the 
 opinion of the place is of itself admissible in evidence; as, on a 
 question of parochialily, proof of reputation, unaccompanied by 
 evidence of acts done, is clearly admissible. 
 
 (1) Nichols V. Parker, 14 East, 331. Parker, ib. 331, n. And see Weeks 
 1 Maule & Selw. 81. v. Sparko, 1 Maule & Selvv. 679, 6S4, 
 
 (2) Denn v. Spray, 1 T. R. 466. 686. Harvvood v. Sitns, 1 Wiglitw. 
 Beebee v. Parker, 5 T. R. 26, 31. 112. Freeman v. Philllpps, supra, p. 
 Chapman v. Smith, 3 Gwill. 854. 2 246. 
 
 Ves. 512, S. C. Doe d. AMason v. (3) 1 Maule & Selw. 687, 689. 
 
 Sisson, 12 East, 62. Morewood v. (4) 1 Maule & Selw. 689, 690. 12 
 
 Wood, 14 East, 327, n. Nichols v. East, 65. 14 East, 330. 
 
 (o) See Note 475, p. 626. (p) See Note 476, p. 628. (?) See Note 477, p. 628. 
 
 Vol. 1. 32
 
 250 Hearsay not Evidence. [Ch. 7. 
 
 On question of Declarations as to boundaries or customs, &c. made post litem 
 
 public right, or i • r i • •it 
 
 custom. motam, tliat is, alter the very same point or question has become 
 
 the subject of controversy, are not admissible. (1) But, unless 
 
 Post litem mo- ,i i i j i i • . 
 
 fam. there should appear to be a controversy as to the same precise point, 
 
 it will not be enough, for the purpose of excluding the declara- 
 tions of deceased persons, to show, that they claimed under the 
 same custom. This kind of evidence has been received, on a 
 Modus. question of parochial modus, though the deceased was a parish- 
 
 Declarations io'ier, and occupier of lands; (2) so also, on a question of parochial 
 of occupiers, or manorial boundary, although the persons who had been heard 
 to speak of the boundary were parishoners, and claimed rights of 
 common on the very wastes which their declarations had a ten- 
 dency to enlarge. (3) 
 
 Although, on a question of boundary or custom, the general 
 opinion of the place is evidence of the general right, yet the 
 Tradition of tradition of a particular fact (as, that turf was dug, or a post 
 particular fact, pyj down in a particular spot, &c.) said to have been done in 
 the exercise of that right, will not be evidence. (4) For the fact, 
 which is the subject of tradition, may have been done under a 
 licence from the very persons against whom, or against whose 
 representatives, the right is afterwards claimed; and, in general, 
 single facts are so frequently misrepresented, or misreporled, 
 either from intention or from ignorance, and the various circum- 
 stances, which have accompanied a fact, and which may be es- 
 sentially characteristic, are often so little known, or, if known, 
 are so likely to pass unobserved, and to be forgotten in the 
 course of time, that no credit can safely be given to such a tra- 
 Modua. dilion. Thus, on a question of parochial modus, evidence that 
 
 a particular person, since deceased, paid a certain sum in lieu 
 of tithes, would not be admissible; but if the witness says, he 
 has heard from old inhabitants, that so much per acre was al- 
 ways paid in lieu of the tithes, or that it had always been the 
 custom to make such payments, that will be good evidence; for 
 
 (1) 11 Price, 180. Vide supra, p. (3) Nichols v. Parker, 14 East, 331, 
 245, on this subject. tried before Le Blano, J. 1S05. 
 
 (2) Harwood v. Sims, I Wightw. (4) 3 T. R. 709. 5 T. R. 123. 14 
 112. Moaeley V. Davy, 11 Price, 162, East, 330, 331. 1 Manie & Sclvv. 687. 
 ISO. Deade v. Hancock, 13 Price, Chatfield v. Fryer, 1 Price, 253. Gar- 
 236. nons v. Barnard, 1 Anstr. 298.
 
 Sect. 7.] Hearsay not Evidence. 251 
 
 it docs not consist of hearsay of a particular fact, but comes williiii On question 
 I I 1 ^ • 1 r • / . \ A 1 • .of prescriptive 
 
 the general rule ol evidence oi reputation. (1) And, iii questions ri„ht. 
 
 of pedigree, as the reputation must necessarily proceed on particu- r~: 
 
 lar facts, such as marriages, births, and the like, the hearsay of the 
 
 family respecting these particular facts, from the necessity of the 
 
 case, is not excluded. (2) 
 
 With respect to the admissibility of common reputation, as evi- Hearsay ns to 
 dence of prescriptive rights strictly private, there has been consid- ^ig^^ts?'^ '^^ 
 erable doubt. In one of the latest cases on this subject, (3) where, 
 on a motion for a new trial, the question was, whether such evi- 
 dence ought to have been received, as evidence of a prescriptive 
 fight of digging stones on a waste, the Court of King's Bench was 
 equally divided. A book of authority lays it down broadly, that 
 " in questions of prescription, it is allowable to give hearsay evi- 
 dence, in order to prove general reputation ; and that, therefore, 
 where the issue was on a right of way over the plaintiff's close, 
 the defendants were admitted to give evidence of a conversation 
 between persons not interested, then dead, wherein the right to the 
 way was acknowledged." (4) But, on the other side, there are Not evidence, 
 many great authorities against receiving this kind of evidence. (5) 
 And there appears to be good reason for the distinction. For where 
 individuals claim merely a private right, other people have not the 
 same means of knowing it, nor, if they had, would they have the 
 same interest to examine it. How, for instance, can the common 
 belief among the inhabitants of a parish supply any kind of infor- 
 mation, on a question of right of way claimed by an individual over 
 a particular field .''(6) In such cases, common reputation appears to 
 
 (1) Harwood v. Sims, 1 Wightw. also Price v. Liulevvood, 3 Campb. 
 112. Adams v. Evans, 4 Price, 20. 288, stated infra. 
 
 (2) 4 Campb. 416. (5) Lord Kenyon in Reed v. Jacij- 
 
 (3) Morewood v. Wood, 14 East, son, I East, 357. Lord Kenyon and 
 327. Lord Kenyon C. J. and Ash- Ashhurst, J. in Morewood v. Wood, 
 hurst J. against the evidence; Bui- 14 East, 329. Lord Kenyon in With- 
 ler J. and Grose J. for it. nell v. Garth:im, 1 Esp N. P. C. 324. 
 
 (4) Bull. N. P. 295. And see the See also Clothier v. Chapman, 14 
 opinions of Buller J. and Grose J. in East, 831, n. Didsbury v. Thomas, 
 Morewood v. Wood, 14 East, 330, n. 14 East-, 323. Barnes v. Mawson, 
 3T. R. 7.9. In Webb V. Petts, Nov, 1 Mauie & Selvv. SI. Blacket v. 
 44, it is said, the court agreed that Lowes, 2 Maule & Selvv. 494. Oii- 
 proof by hearsay, of a modus for a tram v. Morewood, 5 T. K. 123. 
 particular farm [waa admissible. See (6) See 1 Maule & Selw. C91.
 
 252 Hearsay not Evidence. [C!i. 7. 
 
 Old leases, a\yc ^q satisfactory information, and to be inapplicable to the 
 
 rent-rolls, &c. ' . . . "^ ' ' 
 
 pouit jn issue.* 
 
 In the case of Weeks v. Sparke, (1) one of the latest cases on 
 
 Prescription , . , . 
 
 aflecting gen- ^his Subject, which was an action for a trespass on the plaintiff's 
 eral right. close, parcel of a conimon, &c. the defendant justified for a pre- 
 scriptive right of common at all times over the place, &c. and the 
 plaintiff in his replication prescribed to use the place for tillage, &c. 
 qualifying the defendant's general right; to support this prescrip- 
 tive right of tillage, the plaintiff offered evidence of reputation, 
 which was received at the trial ; and the Court of King's Bench 
 were of opinion, that it had been properly admitted, on the ground 
 that the right claimed by the plaintiff", although claimed by pre- 
 scription, yet was an abridgment of the general right of common 
 over the waste, and affected a large number of occupiers within 
 the district. 
 
 Fourthly, as to the admissibility of old leases, rent-rolls, and 
 surveys. 
 
 Old leases, Ol^ leases and old rent-rolls have, in certain cases, been re- 
 
 rent-rolls, ceived in evidence, in favor of a party claiming under the les- 
 sors. (2) On a question, whether certain lands, which had been 
 
 (1) Maule & Selw. 679. See City Abr. tit. Evid. T. b. 4.3.3 Brown, 
 of London V. Gierke, Carth. 181. Pari. Cases, 553. By Heath J. in 1 
 
 (2) Newburgh v. Newburgh, Vin. Campb. 309. 
 
 * It has been said, that in the case of the Bishop ofMeath v. Lord Belfield (a) ia 
 a quare impedit, after the plaintiff had given in evidence an entry, in the register of 
 the diocese, of the institution of one K., (in which entry there was a blank, where 
 the patron's name is usually inserted,) parol evidence of the general reputation of 
 the country was offered, that K- was in by the presentation of one, under whom 
 Lord Belfield claimed ; and that upon a bill of exceptions, this evidence was ad- 
 judged to be admissible, on the ground that a presentation may be by parol, and 
 what commences by parol may be transmitted to posterity by parol, and that this 
 creates a general reputation. But Lord Kenyon, adverting to this case, in the case 
 of the King v. Eriswell, (6) said, he admisted, that a presentation might be by parol, 
 and might be proved by parol, that is, by a witness who was present and heard it : 
 but he denied, that, in such a case, common reputation ct)uld be given in evidence. 
 If it can, he added, why might not such evidence decide titles to estates, at least be- 
 fore the statute of frauds, when no written instrument was required to make a good 
 feoflmeut of the greatest landed property in the kingdom ? 
 
 («) Bull. N. P. 295, and cited by (6) 3 T. R. 723. Tellard v. Sheb- 
 Buller J. in Rex v. Eriswell, 3 T. R. beare, 2 Wils. 366. 
 719, S. C. reported 1 Wils. 215.
 
 Sect. 7.] Hearsay not Evidence. 253 
 
 api)roved from a waste, vvere'subject to aright of common, several Old leases, 
 
 ,,,, , , . riij rent-rolls, &c. 
 
 counterparts of old leases, kept among the muniments ot the lord 
 
 of the manor, by which the land appeared to have been demised ^f*u""^''P»'"t3 
 by the lord free from any such charge, were allowed to be evidence 
 for the plaintiff, who claimed under the lord of the manor, against 
 the defendant in trespass, who justified for common of pasture; 
 they were admissible in evidence to prove this fact, that, at the 
 time of their respective dales, the lord of the manor granted the 
 land free from common; and though possession under the leases 
 was not shown, yet that was not an objection against the admis- 
 sion of the evidence in this case, as the leases were so old, that no 
 person could speak to possession under them. (1) 
 
 Where the question was whether the plaintiffs were entitled to Court-rolls. 
 a prescriptive right of exclusive fishery in a navigable river, which, 
 they claimed under the lords of the manor, they were allowed to 
 give in evidence old entries of licences on the court-rolls of the Licences, 
 manor, stating that the lords of the manor had the several fishery, 
 and had granted the liberty of fishing for certain rents: nor was it 
 thought necessary to prove payment under these licences, as they 
 were of such an ancient date, that evidence of payment could not 
 reasonably be expected. (2) The old licences were, therefore, ad- 
 mitted: but it was added, that they would not be entitled to any 
 weight, unless payment under similar licences could be proved in 
 later times, or that the lords of the manor had exercised other acts 
 of ownership, which have been acquiesced in. 
 
 Entries by a deceased person, of the receipt of rent for panic- Entries of re- 
 ular lands, would not be evidence for a party claiming under *^^'^ ° 
 the deceased, to show that the lands belonged to his ancestor. 
 Thus, in the case of Outram v. Morewood, (3) (where one of the 
 points to be established was, whether certain lands, described 
 in ancient title deeds, were the same, for which certain rents had 
 been at several times paid,) the Court of King's Bench deiermin- 
 
 (1) Clarkson V. Woodhouse, 2 T. R. (3) 5 T. R. 123. And see Lord 
 412, (a). Pomfret v. Smith, 7 Brown, P. C, 169, 
 
 (2) Rogers and others v. Allen, 1 Tornl. ed. 5 T. R. 413, n 
 Campb. 309, before Heath, J.
 
 254 Hearsay not Evidence. [Ch. 7. 
 
 Old leases, ed, that entries, made by a deceased person under whom the de- 
 
 I '. fendant claimed, acknowledging the receipt of rent for the j)remi- 
 
 ses in question, were not admissible evidence for the defendant. 
 Lord Kenyon on that occasion said, " This is distinguishable from 
 all the cases cited. In those, something was produced in respect 
 of the interest of the party; and what the party did or said may 
 be evidence against himself. But here, the entry was a mere pri- 
 vate memorandum, to remind the person that he had received the 
 rent, and cannot be admitted to decide the right between these 
 parties. Evidence of this kind can only be admitted to restrain, 
 not to advance the interest of the party who makes it. What a 
 man does in his closet ought not to affect the rights of third per- 
 sons. There is only one instance in which this is allowed, name- 
 ly, the books of an incumbent respecting his tithes. But that has 
 been always considered an excepted case." " The general rule," 
 said Lord Hardwicke, (1) in the case of Glyn v. The Bank of Eng- 
 land, " is, that a man cannot make evidence for himself. What he 
 writes or says for himself cannot be evidence of his right, and con- 
 sequently cannot be for his representative claiming in his right and 
 place. I will not say (added Lord Hardwicke) how length of time 
 may vary it; but otherwise it cannot be, any more than for him- 
 self." 
 
 Survey of ^ survey of a manor or estate, made by the owner, is not 
 
 manor. evidence against a stranger, in favor of a succeeding owner, that 
 
 particular lands are parcel of the estate. (2) But a survey, 
 which was delivered by the owner to a purchaser of part of his 
 estate, would be evidence against such former owner and against 
 a purchaser of the other part; as, in the case of Bridgman v. 
 Jennings, (3) where Lord Holt ruled, that if A. be seised of 
 the manors of B. and C, and during his seisin of both he cau- 
 ses a survey to be taken of the manor of B., and afterwards the 
 manor of B. is conveyed to E., and afterwards there are dis- 
 putes between the lords of the manors of B. and C about their 
 boundaries, this old survey may be given in evidence: but it 
 would be otherwise, said Lord Holt, if the two manors had not 
 
 (1) 2 Ves. 43. Rex v. Debenham, (3) 1 Ld Raym. 734. . Gilb. Ev. 70. 
 2 Barn. & Aid. 186. And see Davies v. Pierce, 2 T. R. 53. 
 
 (2) Anon. 1 Str. 95. AUott v. Wilkinson, 4 Gwill. 15$5.
 
 Sect. 7.] Hearsay not Evidence. 255 
 
 been in the hands of the same person, at the time when the sur- Against in- 
 
 vey was taken. A survey, then, which has been made by a _^_ 
 
 former owner of the estate, is not evidence of the locahty or 
 identity of land against any person, who was a mere stranger to 
 the survey, (r) 
 
 Fifthly, as to the admissibihty of declarations against interest. 
 
 The declarations or statements of deceased persons have been Declarations 
 admitted, in many cases, where they appear to be made against rfgt. ^ 
 their interest; as, entries in their books, charging themselves with 
 the receipt of money on the account of a third person, (1) or ac- 
 knowledging the payment of money due to themselves. (2) In 
 either case, the entry is to their immediate prejudice, and evidence 
 of the fact, in consideration of which the money is said to have 
 been received or paid. " The princij)le is, that the entry is made 
 by an individual conusant of a fact, at a lime when it was not in 
 dispute, having no interest to make a false entry, and making one 
 tending to charge himself." (3) 
 
 Where the point in issue was, whether a certain waste was the By steward, 
 soil of the defendant, entries by a steward, since deceased, of mon- 
 ey received by him from different persons in satisfaction of trespass- 
 es committed on the waste, were admitted in evidence, to show 
 that the right to the soil was in his master, under whom the plain- 
 tiff claimed. (4) 
 
 Rentals, in which a deceased bailiff or receiver charges himself 
 with specified sums, are evidence to show for what particular ten- 
 ure, or in what right the money was received. (5) Ancient docu- By collector, 
 ments in the possession of an ecclesiastical corporation, purporting 
 to be accounts furnished by some of their members, employed to 
 
 (1) Barry v. Bebbington, 4 T. R. 33. BuUen v. Michell, 2 Price, 413, 
 515. Harpur v. Brooke, 3 Woode- 437. 
 
 son, Lect. 332. Stead v. Heaton, 4 T. (3) By Sir T. Plumer, in Short v. 
 
 R. 669. Lee, 2 Jac. & Walk. 475. 
 
 (2) Warren v. Grenville, 2 Str. (4) Barry v. Bibbington, 4 T. R. 
 1129, commented on by Lord Mans- 515. 
 
 field in Brydges v. Duchess of Chan- (5) Harpur v. Brooke, 2 Woode- 
 
 dos, 2 Burr. 1072, and by Lord El- son's Lect. 332. Via. Ab. tit. Evi- 
 
 lenborough in Higham v. Ridgway, dence, (A. b. 15,) 13. BuUen v. Mich- 
 
 10 East, 118. Doe dem. Reece and ell, 2 Price, 413. 
 others v. Robson and another, 15 East, 
 
 (r) See Note 478, p. 636.
 
 256 Hearsay not Evidence. [Ch. 7. 
 
 Against in- collect the tithes of a rectory belonging to the corporation, are ad- 
 
 terest 
 
 — missible in evidence in a suit by their lessee. (I) An entry in the 
 book of a land-tax collector, stating a rale upon a person, and pay- 
 ment of the rate, is evidence of that person's occupation. (2) 
 
 Bill of lading. A bill of lading, signed by a deceased master of a vessel, for 
 goods to be delivered to a consignee, is evidence of property in the 
 consignee, not only against the master, but also, as it seems, in an 
 action of trover for the goods against a third person. (3) 
 
 A written memorandum by a deceased man-midwife, stating 
 work paid. that he had delivered a woman of child on a certain day, and re- 
 ferring to his leger, in which a charge for his attendance was 
 marked as paid, was thought by the Court of King's Bench to have 
 been properly received in evidence, upon an issue as to the child's 
 age. (4) This entry was made by a person, who, so far from hav- 
 ing an interest to make it, had an interest the other way: for it 
 appeared distinctly from other evidence, that the work charged was 
 actually done; and the discharge in the book repels the claim 
 which he would otherwise have had. It appears, therefore, to be 
 a general principle, that if a party, who has knowledge of the fact, 
 makes an entry of it, whereby he charges himself, or discharges an- 
 other upon whom he would otherwise have a claim, such entry is 
 admissible in evidence. (5) (s) 
 
 By owner of Upon the same principle, in a late case, in an action of ejectment 
 estate. ^y. ^j^g ^^^^ tenant in tail under a settlement (by which an estate 
 
 was limited to A. for life, remainder to B. for life, remainder to C. 
 his eldest son, for life, remainder to C.'s eldest son in tail, &c. with 
 a power to the tenants for life to grant leases on condition of reserv- 
 ing the ancient rent,) against the defendant who claimed as lessee 
 of C, to recover a ])art of the estate, which, as the lessor of the 
 plaintiff complained, had been demised for less than the ancient 
 rent, the Court of King's Bench held, that a letter addressed to B. 
 
 (1) Short V. Lee, 2 Jac. & Walk. (4) Higham v. Ridgway, 10 East, 
 464. 109. 110. 2 Price, 413. 
 
 (2) Doe dem. Smith v. Cartwright, (5) Doe dem. Reece v. Robson, 15 
 1 Ry. & Mo 62, by Abbott C J. East, 35. 
 
 (3) Haddow v. Parry, 3 Taunt. 305. 
 
 (s) See Note 479, p. 639.
 
 Sect. 7.] Hearsay not Evidence. 257 
 
 by one intimately acquainted with the property, purporting to be a Against inter- 
 particular account of the ancient rents at that time, and recog- ! 
 
 nized as such by B., and preserved by the successive owners of 
 the estate, ought to have been received at the trial, as evidence of 
 the ancient reserved rent against C. (a succeeding tenant for life, 
 subject to the restrictions of the same power) and also against the 
 defendant claiming under C. This old paper, so accredited and 
 adopted, was considered to be equivalent to a declaration by B. 
 himself. Lord Ellenborough, in delivering the judgment of the 
 court, said, " The contents of the paper were adverse to the title 
 of the person who had possession of it, by diminishing the interest 
 in the fine on renewal, in the same proportion as it raised the rent 
 to be reserved. Then at such a distance of time, with the means 
 of knowledge which he had of the fact, and his interest in de- 
 claring it the other way, we think that his declaration is evidence 
 of the fact to go to the jury." (1) [t) 
 
 Where the question was, whether some horses, which had been By owner of 
 
 property. 
 
 taken by the defendant under a heriot custom, belonged to the 
 plaintiff or to one A. B., a deceased tenant of the defendant, dec- 
 larations by A. B. were offered in evidence for the purpose of prov- 
 ing, that the horses belonged to the plaintiff before A. B.'s death, 
 in which declarations A. B. stated that he had given up his farm 
 and all his stock to the plaintiff. This evidence was rejected at 
 the irialj held that tiie declarations ought to have been admitted, 
 since they were against the interest of the person who made them, 
 and might have been given in evidence against him in his life-time, 
 if the plaintiff had brought an action for the horses. (2) (m) 
 
 Upon the same principle, a paper signed by many deceased By copyhol- 
 copyholders of a manor, in)porting what was the general right 
 
 (1) Roe d. Brune v. Rawlings, 7 stated infra. And see Lady Dart- 
 East, 279, 290. See also the follow- mouth v. Roberts, 16 East, 334 ; 
 ing cases, in which declarations of Hodgson v. Fullnrton, 4 Taunt. 7S7 ; 
 deceased persons, against their in- Wadley v. Bailiss, 5 Taunt. 752 ; 
 terest, were received in evidence ; Searle v. Lord Barrington, stated in 
 Beggalley v. Jones, 1 Campb. 367 ; vol. 2. 
 
 Morewood v. Wood, 14 East, 328 ; (2) Ivat v. Finch, 1 Taunt. Rep. 
 
 Doe d. Reece v. Robson, 15 East, 33 ; 141. 
 Price V. Littlewood, 3 Campb. 288, 
 
 (0 See Note 480, p. 643. (u) See Note 481, p. 644. 
 
 Vol. I. 33
 
 258 Hearsay not Evidence. [Ch. 7. 
 
 Against inter- of common in each copyholder, and agreeing to restrict it, is evi- 
 
 ' dence of reputation even against other copyholders not claiming 
 
 under those who signed it. (1) A declaration by the owner or 
 
 occupier of adjoining land, that his neiglibor's land extends to 
 
 such a spot, accompanying an act of forbearance to go beyond the 
 
 spot for that reason, (or without such act, if he speaks against his 
 
 interest,) is evidence, that the land extends so far. (2) {v) And 
 
 By occupier of the declaration of a deceased occupier of land, that he rented it 
 
 ^^ ' under a certain person, is evidence of that person's seisin; (3) it is 
 
 evidence against a party claiming under the deceased, as his heir 
 
 at law, to explain the nature of the occupation, and to show that 
 
 it was not adverse. (4) {iv) 
 
 Such admissions or declarations against interest appear to be 
 evidence upon the same principle as the acts of a party against his 
 interest; they differ in degree and in their effect, rather than in 
 their nature. An act of forbearance on one side is an admission of 
 right on the other; and proof of the exercise of a right, which has 
 been acquiesced in, is still stronger evidence that the right exists. 
 It is the constant practice to receive such evidence on questions 
 concerning tolls, rights of way, freehold in wastes, and other cases 
 of the same kind. (5) (x) 
 
 The case of Goss v. Watlington (6) affords another example, as 
 to the admissibility of written entries made by a person, since de- 
 ceased. This was an action against a surety of A. B. deceased, on 
 a bond conditioned for the performance of duty by A. B., as collec- 
 By principal toi' of rates, &c., and for his delivering up to his employer all books 
 and accounts, entrusted to his care as such collector. For the pur- 
 pose of proving the receipts of money by the collector, certain books 
 were produced, which had been delivered to him from his predeces- 
 sor, and which, on the death of A. B., were delivered over to his 
 successor: these books contained entries of persons rated, and, oppo- 
 site the names, the amount of the respective rales; many of the names 
 
 (1) Chapman v. Cowlan, 13 East, 367. Doe clem. Hunian v. Pettelt, 5 
 10. Barn. &. Aid. 223. 
 
 (2) Sir T. Stanley v. White, 14 East, (4) 5 Barn. & Aid. 223. 
 332, 339, 341. (5) 1 Str. 659. 14 East, 342. 1 
 
 (3) Uneie V. Watson 4 Taunt. 16. Canipb. 310. 5 Taunt. 752. 
 Doe dem. Baggalley v. Jones, 1 Campb. (6) 3 Brod. & Bing. 132. 
 
 (u) See Note 482, p. 669. {iv) See Note 483, p. 669. (x) See Note 484 p. 669. 
 
 as agamst 
 surety.
 
 Sect. 7.] Hearsay not Evidence. 259 
 
 were ticked off, to show tliat the collectoi- had received the sum Against intor- 
 
 est. 
 assessed. Receipts also, signed by the deceased collector, for 
 
 money paid to him in his official capacity, were produced. On the 
 first point, the Court of Common Pleas were of opinion, that the 
 entries made by the deceased collector, charging himself with the 
 receipt of money, and made by him in the public books of his of- 
 fice, for the faithful delivery of which books the defendant was 
 surety, were admissible in evidence against the surety. Upon the 
 second point, namely, the admissibility of the receipts, the Court 
 thought there was not enough, in the circumstances of the case, to 
 admit the receipts in evidence against the defendant, [y) 
 
 The memorandum or entry, before it can be received in evi- p^oofofgntry- 
 dence, must be proved to be authentic; as, by showing it to be 
 the hand-writing of the deceased person, who knew the fact 
 there stated, or that it was signed by him; (1) or, if signed by 
 another, that it was made by his order, or afterwards acknowledg- 
 ed by him. (2) 
 
 When a written entry or document is offered in evidence as 
 the statement of a person in a particular capacity (as, collector 
 of tithes, steward, collector of taxes,) it should be proved, that 
 the person was in that capacity, and invested with that character. 
 Unless this fact is previously ascertained, the proposed writing 
 is not admissible. (2) The possession, out of which the docu- 
 ment comes, is always to be regarded, and the document itself 
 may often supply important internal evidence of its being authen- 
 tic. (3) (a) 
 
 In all the "cases which have been mentioned on this subject, Proof of death, 
 the person, who made the entry or declaration in question, was 
 deceased at the time of the trial ; if the rule were not confined 
 to such cases, there would be great danger of collusion. It has, 
 therefore, been held, that such evidence is not admissible, where 
 
 (1) 4 T. R. 515, 516. 'Jones v. (2) Short v Lee, 2 Jac. & Walk. 
 Waller, 3 Gwill. 847.? Yate v. Leigh, 464, 467. 
 
 3 Gwill. 86L (3) Doe d. Webber v. Lord G. 
 
 Thvnne, 10 East, 206, 4 T. R. 516. 
 
 (y) See Note 485, p. 669. (2) See note 486, p. 673. {a) See Note 487, p. 673.
 
 260 Hearsay not Evidence. [Cli. 7. 
 
 Rector's or Vi- the person is incapable of attending from illness. (1) [b) This is 
 car's b ook. ^j^^ ^^j^ respecting the proof of modern entries in private books. 
 But entries in ti)e public books o^ public companies are admitted 
 without the proof of the officer who made them. (2) 
 
 Sixthly, as to the admissibility of the books of deceased rectors 
 or vicars. 
 
 Rector's end Entries made by a deceased rector or vicar, as to the receipt of 
 Vicar'fl books. g(.j.igsiastical dues, have been in several cases admitted as evidence 
 for his successor; (3) because, it is said, he had no interest to mis- 
 state the fact in making an entry which could not possibly be evi- 
 dence for himself. (4) '' This," as Lord Hardwicke once 
 j^aid, (5) "is going a great way, but has been allowed, because 
 the parson knows, that his entry cannot benefit either himself or 
 his representative, who has nothing to do with the living : and it is 
 not to be presumed (he added,) that the parson would make false 
 entries for his successor, who stands indifferent to him."* 
 
 The cases have even gone still further : and similar entries, 
 made by deceased impropriate rectors, have been received as 
 evidence for their successors, although objected to as coming 
 
 (1) Harrison v. Blades, 3 Campb. 63. Walter v. Holman, 4 Price, 171. 
 457. Manby v. Curtis, 1 Price, 282, Parsons v. Bellamy, 4 Price, 190. 
 235. Cooper v. Marsden, 1 Esp. N. Armstrong v. Hewitt, 4 Price, 21S. 
 P. C. 2, stated infra. In this last case, the vicar's bock was 
 
 (2) Hodason v. Fullarton, 4 Taunt, produced from the parish-chest; and 
 787, by M'ansfieid Ch- J. The officer it was said, that there were two oth- 
 was' prevented from attending, by ill- er legitimate depositories for such 
 ness. This point was not suggested books, besides this of the parish-chest, 
 afterwards, among the grounds for en- namely, the bishop's registry, and 
 tering a nonsuit. the registry of the archdeacon of the 
 
 (31 Le Gross v. Lovemoor, 2 Gwill- diocese. 
 529. Lord Arundel's case, 2 Gwill. (4) 7 East, 290. 1 Wightwick, 63. 
 
 620 Perigal v. Nicholson, Wightw. (5) 2 Ves. 43. 
 
 ♦ Such evidence is said to have been refused in Le Gross v. Lovemoor, 2 
 Gwill 527 ; has been mentioned as a singular exception by Lord Kenyon in 
 Outram v. Morewood, 5 T. II. 123 ; was disapproved of by Mr. Baron Wood 
 in Perigal v. Nicholson, 1 Wightw. Rep. 63, and irv Bullen v. Michel, 2 Price, 
 436; alio by Price B. in Woodnolh v. Ld. Cobham, 2 Gwill. 653. King, C. J., in 
 a case before him, in 1719, s.iid, this evidence had been received yjer cursum 
 Scaccarii, though he could not give a reason for it; Vin. Ab. Ev. (T. b. 73.) Vide 
 supra, p. 230, as to the general objections, to which hearsay evidence i.s liable; 
 and Outram v. Morewood, supra, p. 251, n. (5 ) 
 
 (b) See Note 488, p. 673.
 
 Sect. 7.] Hearsay not Evidence. 261 
 
 from the owners of the inheritance. (I) Entries of tithes received Rector's or Vi- 
 
 , , , r 1 • • 1 • . I car's book. 
 
 in the books of an ecclesiastical aggregate corporation, lo whom a 
 
 rectory belonged, are evidence for their successors: the admissibil- 
 ity of the entries does not appear to be affected by the considera- 
 tion, whether the corporation is sole or aggregate. (2) 
 
 In a case where a question arose between an impropriate rector 
 and a vicar respecting agistment tithe, the Court of Exchequer 
 held, that the books of a deceased lessee of the rectory, stating 
 the receipt of such tithe, were evidence after the determination of 
 the lease, for the impropriator;(3) and, on the other hand, entries 
 by the steward of a former deceased owner of the estate, containing 
 an account of payments to the vicar in lieu of the tithes of particu- 
 lar lands, have been admitted as evidence for a succeeding owner 
 against the impropriator. (4) 
 
 In the late case of Perigal v. Nicholson and others, (5) on a 
 bill for tithes filed by the vicar against the defendants, who in- 
 sisted upon a modus for hay and agistment, the Court of Excheq- 
 uer admitted, as evidence for the plaintiff, an entry in the parish 
 register, stating, that various moduses were due from the different 
 townships of the parish for hay only, in which entry the sum total 
 of all the moduses was in the hand-writing of a preceding vicar, 
 but it did not appear by whom the other part of the entry had 
 been made. The majority of the Court held, as the report 
 states, that the entry was admissible, upon the ground that the 
 vicar had no interest beyond his incumbency, and there did not 
 appear to be any dispute at the time, or previously, respecting 
 these tithes; and this entry, by admitting a modus in one article, 
 was in abridgement of the rights of the vicar, and it was the ap- 
 plication only which now accidentally became favourable to his 
 successor. 
 
 It is essential in such cases, that the reclor or vicar, wi)ose rroorof death, 
 books are offered in evidence, should appear to be dead; if not 
 
 (1) Anon, case, Bunb. 46. Anon. (3) Illingworth v. Leigh, 4 Gvvill. 
 case, before King C. J., Vin. Ab. Ev. 1618. 
 
 T. b. 73, and T. b. 117, art. 3. See (4) VVoodnoth v. Lord Cobham, 2 
 
 Short V. Lee, 2 Jac & Walk. 479. Gwill. 653. Bunb. 180, S. C. 
 
 (2) Short V. Lee, 1 Jac. & Walk. (5) Wightw. 63; Wood B. dissenting. 
 478.
 
 such evidence. 
 
 262 Hearsay' not Evidence. [Ch. 7. 
 
 Rector'sor Vi- dead, lie riuist be called to prove the receipt of the sum specified. 
 
 ^ 'J There have indeed been cases, where, from the circumstance of 
 
 finding the books of a former vicar in the possession of a suc- 
 ceeding vicar, so far back as between the times of Charles the 
 Second and George the Second, the death of the vicar might 
 be reasonably presumed. The case of Jones v. Waller is an 
 instance, (1) in which the book of a collector of tithes in 1679 
 was admitted as evidence in 1753, because it was not reasonable 
 to suppose that the collector was then alive. In the late case of 
 Manby v. Curtis, (2) on the other hand, where the receipt pur- 
 ported to have been given in the year 1762, the Court of Ex- 
 chequer determined, that the death of the person, in whose name 
 the receipt was signed, could not be presumed after a lapse of fifty 
 years, and, as this fact had not been proved, that the document 
 ought not to be received in evidence. 
 
 Remarks on The cases, in v\fhich a deceased rector's books have been re- 
 
 ceived as evidence, in favour of a succeeding rector against a 
 stranger, appear to be very distinguishable from the cases, before 
 cited, in which the declarations or written entries were made by 
 deceased persons, peculiarly if not exclusively acquainted with 
 the fact. The utmost to be said of these is, that the declarations 
 generally related to old facts, and were made by persons who 
 could not have used them in their own favour; and the same 
 may be said of a great variety of cases, in which the declarations 
 of deceased persons have been uniformly rejected. The objection 
 against hearsay, under which title such entries must be classed, 
 (for, with respect to their abmissibility, it is not material, whether 
 the declarations were written or merely spoken,) is, not that the 
 person, who asserted the fact, might have been interested to 
 misrepresent it, but that the assertion was made not under the 
 sanction of an oath, and that the party, against whom the evi- 
 dence is offered, had no opportunity of questioning the person 
 as to the supposed fact. Here, the declarations were not against 
 the interest of the person who made them, and were produced 
 against a stranger; and further, the rights, sought to be establish- 
 ed by such declarations, were in their nature capable of various 
 other kinds of proof. 
 
 (1) 3 Gwill. 847. ing of Mr. Baron Wood in 2 Price, 436, 
 
 (2) 1 Price, 225, 229, 235. Mr. Bar- 437- 
 on Wood dissented. See also the reason-
 
 Sect. 7.1 Hearsay not Evidence. 263 
 
 Seventhly, as to the admissibihty of the books of a tradesman. Tradesman's 
 
 book. 
 
 Entries in the books of a tradesman by his deceased shopman, 
 who therein supplies proof of a charge against himself, have been 
 admitted in evidence, as proof of the delivery of goods, or of other 
 matter there stated within his knowledge. Thus, in an action of 
 assumpsit, where the usual course of the plaintiff's dealings ap- 
 peared to be, that the drayman of the plaintiff, who was a brewer, 
 should come every night to the clerk of the brewhouse, and give 
 him an account of the beer delivered out by them, which he set 
 down in a book kept for the purpose, and the draymen signed it 5 
 the drayman, who signed the particular entry, offered in evidence, 
 had since died, but his hand-writing was proved; this entry was 
 held to be good evidence of the delivery of the beer, for which the 
 action was brought. (1) 
 
 This declaration of the tradesman's servant, of having delivered Remarks on 
 
 such 6VIQCDCG 
 
 the goods, is an implied admission, that he received them for that 
 purpose, and would have been evidence against him, in an action 
 for not delivering them according to his instructions. But it is 
 clearly distinguishable from entries in the book of a receiver, who 
 by making a gratuitous charge against himself, knowingly against 
 his own interest, and without any equivalent, repels every suppo- 
 sition of fraud. A disposition to commit fraud would have tempt- 
 ed him to suppress altogether the fact of his having received any 
 thing, or to misrepresent the amount of the sum, but not to mis- 
 state the ground or consideration for which it was received; that 
 is, not to mis-state the only fact sought to be established by the 
 proposed evidence. On the other hand, the declaration of the 
 tradesman's servant is oflered in evidence to prove the fact of de- 
 livery, and as he gives the account not against his own interest, 
 which is some security for the truih of the statement in the other 
 case, the probability of his account being true or false, is neither 
 greater nor less than the probability of his being honest or dishon- 
 est, which is nothing more than may be said in every case of hear- 
 say. The circumstance of his thereby acknowledging the receipt 
 
 (1) Price V. Ld. Torrington, 1 Salk. copy of a licence, in a merchant's let- 
 
 285; 2 Ld. Raym. 873, S. C. See ter-book, written by a deceased clerk, 
 
 Pitman v. Madox, 2 Salk. 690; Cal- and proved to be in the usual course 
 
 vert V. Archbishop of Canterbury, 2 of business, was admitted in Hagedorn 
 
 Esp. N. P. C. 645. The entry of a v. Reid, 3 Campb. 379.
 
 264 Hearsay not Evidence. [(h. 7. 
 
 Tradesman's of goods, whicl), it may be said, would be evidence in an action 
 
 °° ' against him, seetns to amount to little or nothing. It was the 
 
 least he could say: to have said nothing at all, would, as he must 
 have known, necessarily lead to some inquiry. These considera- 
 tions may serve to show, how cautiously such declarations by 
 shopmen are to be admitted in evidence, to charge third per- 
 sons with the receipt of goods: more particularly, as the trades- 
 man may easily be furnished with evidence of delivery, by taking 
 a memorandum from the purchaser, or by requiring some other 
 security. 
 
 Entry by shop- The entry in the tradesman's book ought to have been made 
 '^^" by the shopman: or, if not actually written by him, should at 
 
 least ajjpear to have been observed by him soon after it was 
 made, so as to enable him to speak to its correctness, and that 
 the entry may be tantamount to one made by the shopman him- 
 Shopman to be self. (1) If the shopman is living, he ought to be produced as a 
 ^^"^*^' witness, that he may explain the circumstances and dealings, on 
 
 which the entry was founded. When he is examined, he may 
 use the entry as a memorandum; and the other party, charged 
 with the debt, will then have an opportunity of examining into its 
 correctness. If the person, who made the entry, was employed, 
 as shopman or clerk, to deliver goods, &,c. and he is since dead, 
 an entry made by him will be evidence under certain restrictions. 
 But proof of the hand-writing of the clerk, and that he is gone 
 abroad, and is not likely to return, has been held not to be suffi- 
 cient to make such an ex parte memorandum admissible in evi- 
 dence. (2) 
 
 Examples ^" ^^^^ ^^^^ 0^ Evans and Lake, (3) a merchant's books were 
 
 received in evidence under particular circumstances. The ques- 
 tion there was, whether certain goods, which had been bought 
 in the name of Mr. Lake, were purchased on his own account, 
 or in trust for Sir Stephen Evans. To prove the latter of these 
 positions, the assignees of Sir Stephen Evans, who were the 
 plaintiffs, first showed, that there was no entry in the books of 
 
 (1) Digby V. Stedman, 1 Esp. N. P. (3) Bull. N. P. 282, 283. and see 
 C. 327. Cooper v. Marsden, 1 Esp. N. P. C. 1. 
 
 (2) Cooper v. Marsden, I Esp. N. P- 
 C. 2.
 
 Sect. 7.] Hearsay not Evidence. 265 
 
 Mr. Lake relatins; to iliis transaciion; ihey then produced several Tradesman'* 
 
 o ' J I book. 
 
 receipts in the possession of Sir S. Evans for the paynfient of part . * 
 
 of the goods, and on the back of the receipts there was a reference 
 in the hand-wriling of Sir Stephen's book-keeper, since deceased, 
 to a certain shop-book of Sir Stephen. Upon this, the question 
 was, whether the book so referred to, in which^was an entry for 
 tiie payment of money for the whole of the goods, sliould be read. 
 And the court of King's Bench, on a trial at bar, adn)itted the en- 
 try, not only as to the part mentioned in the receipts, but also as 
 to the remainder of the goods then in the hands of Mr. Lake's son. 
 Li this case, (which Lord Hardwicke has observed upon, as " new 
 and having gone a great way" (I),) the entry was not oflered by 
 the assignees as evidence of payment against the seller of the 
 goods, but as corroborating evidence to show, that, while the books 
 of the other party concerned took no notice whatever of the goods, 
 those of Sir S. Evans, under whom the plaintiffs claimed, treated 
 the goods as bought on his account. 
 
 In another case, where the plaintifF, to prove delivery of wine ^°'''y '" !^""^ 
 1 t I I 1 • 1 • person's book. 
 
 to the defendant, produced a book belongmg to his cooper, since 
 
 dead, whose name was subscribed to several articles, which it was 
 proposed to read, after proof of the hand-writing, Lord Raymond 
 C. J. would not allow it, saying it differed from Lord Torrington's 
 case. (2) And Lord Kenyon ruled, in the caseof Calver v. Arch- Entry of agree- 
 bishop of Canterbury, (3) that, in an action for the hire of a pair of 
 horses, an entry by the plaintiff's servant since dead, stating the 
 terms of the agreement with the defendant, ought not to be ad- 
 mitted, (c) 
 
 In an action by a tavern-keeper, (4) it appeared, that the defend- Pook open to 
 ant belonged to a club, which was held at the [)laintifi''s l^ouse, gpgg^jjon]^ '"' 
 and that in a room, where the club met, a book used regularly to 
 be kept open, in which the plaintifi^'s servants entered the articles, 
 as they were ordered by the members of the club, who had there- 
 by an opportunity of iiispecting and correcting the account. Lord 
 
 (1) Glyn V. Bank of England, 2 Ves. (3) 2 Esp. N. P. C. fi!6. 
 
 43. (4) Wilizie v. AdiiiuBon, K. B. EiU 
 
 (2) Clerk v. Bedford, Hull. N. P. after Mich term, 17S9, ?<;9. 
 582. Sea Cooper ?. Marsden, 1 Esp. 
 
 N. P. C. 1. 
 
 (c) See Note 489 p. 674. 
 
 Vol. I. 34
 
 266 
 
 Hearsay not Evidence. 
 
 [Ch. 7. 
 
 Tradesman's Kenyon admitted tlie book as evidence of tlie delivery, tliough it 
 
 ^°"^' , was not proved that the servants, who made the entry, were'dead, 
 
 nor was their absence accounted for, and only liieir hand-writing 
 was proved. The daily account in the book was in this case con- 
 sidered as tantamount to a bill delivered and admitted bv the de- 
 fendant, (d) 
 
 St. 7 J. 1. The Stat. 7 J. I, c. 12, enacts, that the shop-book of a trades- 
 
 man shall not be evidence, in any action for wares delivered, or 
 work done, above one year before the bringing of the action, ex- 
 cept the tradesman or his executor shall have obtained a bill of 
 debt or obligation of the debtor for the said debt, or shall have 
 Limitations as broua,ht against him some action, within a year next after the de- 
 »o ume. livery of the wares, or the work done. (1) And the 2d section pro- 
 
 vides, that nothing in the act shall extend to the mutual trading 
 and merchandize between tradesman and tradesman. At the lime 
 of making this act of parliament, there was an opinion growing up, 
 that, after a certain length of time, a man's shop-books would be 
 evidence for him, after the year: to prevent which the act was 
 made. (2) However, the book is not evidence, even within the 
 year, except under particular circumstances, (c) 
 
 Entry by 
 tradesman. 
 
 Entry by 
 bankrupt. 
 
 An entry made by a tradesman himself, stating the delivery of 
 
 goods, is not evidence for him; but whether made by him or not, 
 
 it may often serve as a memorandum to refresh the memory of the 
 
 shopman, and (■■r that purpose may be used Iiy him. (/) An entry 
 
 by a tradesman, stating a debt due from himself to a third person, 
 
 is manifestly good evidence of the debt, as a statement against his 
 
 interest; thus, entries by a bankrupt, and an account signed by 
 
 bim before his bankruptcy, ch.aiging himself witli a balance, are 
 
 admissible as evidence of the petitioning creditor's deltt in an action 
 
 Time of mak- ^ ^|jg assignees. (3) It is essentially necessary, in such cases, to 
 log entry. ■' o \ / ■/ ' . ■ 
 
 prove the signing of the account, or the m.akmg ol the entry, to 
 
 have been before the act of laukiup-U y, and to [)rove this by ex- 
 trinsic evidence, (g) 
 
 (1) Sikea V. Marshall, 2 Fep N. P. 
 C. 706. 
 
 (2) P>y Ld. IliirdvvicUe, 2 Ves 43, 
 376 
 
 (C) Walls V. Tl.orpe, 1 Campb. 
 ST6 IJoi;ro v. Corvloii, 4 Taunt- 
 £60. 
 
 {d) See Note 490, p. 679. (c) SeeKote 491, p. 682. ( / ) See Note 492, p. 703. 
 ig) See Note 493, p. 701,
 
 Cli. 8.] Of the Examination of fViinesses. 257 
 
 CHAP. VIII. 
 
 Of the Examination of JVitnesses. 
 
 Aftek considering, in the lasl chapter, what kind of evidence 
 ought to be produced for ascertaining the points in issue, the next 
 subject of inquiry relates to the manner in which witnesses are to 
 be examined. 
 
 The ordinary mode of proceeding in the courts of common law, Examination 
 , . . I. . . , ,, V ... as to intereit. 
 
 preparatory to the exammation ol a witness, is to swear {k) turn m 
 
 chief, unless an objection should be made to his competency; (i) 
 in which case, the practice formerly was to examine him on the 
 voire dire; {j) and this was so strictly observed, that, if a witness 
 were once examined in chief, he could not afterwards be objected 
 to on the ground of interest. (1) But in later times, the rule has 
 been to a certain extent relaxed, and now, if it sh.ould be discover- 
 ed in any stage of the trial, before the close of a witness's exami- 
 nation and before his dismissal, that he is interested, his evidence 
 will be rejected. This is as well for the convenience of the Court, 
 a'j for the purposes of justice. The examination of a witness, to 
 discover whether he has any interest in the cause, is frequently to 
 the same cfTect as his examination in chief; it therefore saves time, 
 and is more convenient, that the witness should be sworn in chief 
 in the first instance; and if it should afterwards appear, in tlie pro- 
 gress of the examination, that he is interested, it will then be time 
 to take the objection. (2) [k) 
 
 This relaxation, however, of the ancient rule, does not extend so Cross-examln- 
 ~ III 11 • • I ation as to in- 
 
 lar, as to allow tlie counsel on tlie cross-examination, to ask terest under a 
 
 the witness every sort of question, which might be proper on the ^'"■ 
 voire dire. (/) For example, after an examination in chief, a witness 
 is not to be cross-examined as to the contents of a will, not pro- 
 duced in court, under uliich it is suggested that betakes some 
 
 (1) See Lord Lovat's case, 9 ^'t Tr. Stone v. Blackburn, 1 Esp. N. P. C. 
 639,646,704. 37. Beeching v. Gower, Holt, N. P. 
 
 (2) Turner v. Pearte, i T. K. 717. C. 313. 
 Perigai v. Nicholson, 1 Wightw. 64. 
 
 (A) See Note 494, p. 705. (i) See Note 495, p 706. (J) See Note 496, p. 706. 
 (/c) See Note 497, p. 707. {I) Soe Note 498, p. 709,
 
 268 
 
 Of the Examination of Witnesses. [Ch. 8. 
 
 Examination interest, nlihoiigli such questions niiglit be properly asked in anex- 
 jn chief. . . . . 
 annnaiion on tlie von'e dire. (1) (m) 
 
 AVIien ilie witness has been regularly sworn, lie is first examin- 
 ed by the parly which produces him; after which, the other party 
 is at liberty to cross examine. The examination is in open court, 
 in the preience of the parties, their attornies, and counsel, and be- 
 fore the judge and jury, who have thus an opportunity of observing 
 the understanding, demeanor, and inclination of the witnesses, (n) 
 
 Separately It may often be advisable to examine witnesses separately, and 
 
 from the other r i i • r i i • i • i • i i 
 
 witnesses. ^^"-'^ °' ^he hearmg ot each other, with a view to obviate tiie danger 
 of a concerted story among ihe witnesses, and to prevent the influ- 
 ence which the account given by one may have upon another.* 
 For this purpose, the court will order witnesses to withdraw; and 
 if any witness, who has been ordered to withdraw, continues in 
 court, in violation of such order, the Court will not afterwards per- 
 mit him to be examined. (2) But an attorney in the cause, whose 
 attendance is necessary in court, to instruct his counsel, is not with- 
 in this rule. (3) (o) 
 
 Leading 
 qaestion. 
 
 Leading questions, that is, such as instruct a witness how to an- 
 swer on material points,' (p) are not allowed on the examination in 
 chief; [q) for, to direct witnesses in their evidence would only serve 
 to strengthen that bias, which they are generally too much dis- 
 posed to feel, in favor of the party that calls them. The strictest 
 observance of this rule is essential for the discovery of truth, and 
 the due administration of justice, (r) 
 
 Introductory. Questions which are intended merely as introductory, and which, 
 whether answered in the affirmative or negative, would not be cou- 
 
 (1) Howell V. Lock, 2 Cainpb. 14. 
 
 (2) Att. Gen. v. Bulpit, 9 Price, 4. 
 
 (3) Pomeroy v. Baddeley, 1 Ry. & 
 Mo. 430. 
 
 * By the law of Scotland, this separate examination takes place in all criminal 
 prosecutions. The rule there is, that if a witness has been present in court during 
 the examination of another witness, so as to hear his evidence, he will be rejected. 
 See Hume's Com. on Crim. Law of Scotland, 2 vol. 365. Burnet's Treatise, 467. 
 
 (wi) See Note 499, p. 710. (n) See Note 500, p. 710. (o) See Note 501, p. 720. 
 (p) See Note 602, p. 722. (5) See Note 503, p. 723. (r) See Note 604, p. 723.
 
 Ch. 8.] Of the Examination of Witnesses. 269 
 
 elusive on any of tlie points in ihe cause, are not liable to the ob- Leading 
 
 jection of leading. If it were not allowed to approacb the points in ^^^^ '""" 
 
 issue by such questions, the examination of witnesses would run 
 to an innmoderate length. For example, if tuo defendants are 
 charged as partners, a witness may be properly asked, whether 
 the one defendant has interfered in the business of the other. (1) 
 This is not a leading question: for though he may have interfered, it 
 will not follow, that he has by this alone made himself liable as a 
 partner. Or, if a witness, called to prove the partnership of the 
 plaintiffs, is not able at the moment to specify the several names of 
 the partners, a number of names, containing those of the partners 
 among others, may be suggested to the witness, for the assistance 
 of his memory. (2) (s) 
 
 If a witness should appear to be in the interest of the opposite Unwillin-' 
 party, or unwilling to give evidence, the Court will in its discre- ^""^^3. 
 tion allow the examination in chief to assume something of the 
 form of a cross-examination. Where an issue has been directed, 
 with a power to examine one of the parties, it will be competent 
 to the counsel of the opposite party to cross-examine him; because, 
 as party, he must be considered as necessarily adverse. (3)*(0 
 
 Itis to be considered, how far leading questions are proper, in the Leading, pre- 
 examination of a witness in chief, when the obiect is to prove, that P^''''^^°'7 tp 
 
 ' _ •> ' ' contradicting a 
 
 another witness, who has been examined on the opposite side, has, former wit- 
 on some former occasion, made a diflerent and contradictory state- "^^^' 
 ment. If, for example, a witness on his cross-examination were 
 to deny, that he ever gave a different account of the transaction, 
 or that, in conversing upon the subject with a third person, he used 
 certain words or expressions imputed to him, would it be compe- 
 
 (1) Nichoils V. Dowding and another, (2) Acerro and others v. Petroni, I 
 1 Starkie, N. P. C. 81, by Lord Ellen- Staikie, N. P. C. 100. 
 borough. (3) Clarke v. Saffery, 1 Ry. & Mo. 
 
 126. 
 
 * The rule adopted by the courts of justice in Scotland, on the subject of leading 
 n witness, appears to be much stricter than in this country- No distinction is al- 
 lowed, according to their practice, between willing and unwilling witnesses, or be- 
 tween an examination in chief and cross-examination, (a) 
 
 (a) See Burnet on Crim. Law of Scotland, p. 465. 
 
 (») See Note 505, p. 724. (<) See Note 506, p. 724.
 
 270 Of the Examination of Witnesses. [Cli. 8. 
 
 Leading (ent to the counsel on ihe opposite side, in exaniinins; that third 
 
 question. . . , ' ' ' ° 
 
 person in chief as his witness, to ask him, in the first instance, 
 
 whether the former witness, in conversing with hiin, said so and 
 so, or used such and such expressions? This form of putting the 
 question is certainly not unconimon, and fiequenily passes uiihout 
 objection. But a very little consideration will show, that such a 
 leading question is irregular, (it) For, in the first place, it must 
 evidently be quite unnecessaiy to lead the witness to such a 
 length; it would be suft^icient to lead him up (o the subject of 
 the conversation; and, that being done, the most regular course 
 would be, to inquire generally, whqt the former witness said or 
 what account he gave, relative to the transaction in question, 
 thus leaving him, as in fairness he ought to be left, to the use of 
 his own memory. If the (Witness has a distinct recollection of the 
 co:iversation, and of the representation made by the other per- 
 son, whose account is now disputed, he requires only to have his 
 attention directed to the subject, to enable him to speak what he 
 knows: if he has not that distinct recollection, he is ill-qualified 
 to contradict the other witness, as to the expressions sup[)0sed to 
 have been used by him; in other words, he is incompetent for 
 the pur|)ose for which he is called. The plea of necessity, there- 
 fore, altogether fails. But the principal objection to such leading 
 questions appears to be, that they suggest the desired answer so 
 broadly and obviously, that a witness of the dullest intellect and 
 weakest n)emory can hardly fail to take the hint, and may easily 
 shape his evidence, if he is so disposed, as may best serve the 
 interest and wishes of the party who calls him. In effect, the 
 question puts into the mouth of the witness the very words, 
 which he is to echo back either in the affirmative or in the ne- 
 gative; thus supplying a forgetful witness with a false memory, 
 and an artful witness with a proiupt and concerted answer. Is 
 there, then, any thing in the natuie of this particular case, which 
 ought to exempt it from the genend rule applicable to examinations 
 in chief.'* On the contrary, if there is any case, in which that 
 general rule against leading ought to be strictly maintained, it is 
 the one now under consideration, where a witness is called for the 
 purpose of [)roving the account, given by another witness, to be in- 
 consistent with some former statement, sujiposed to have been made 
 by him. Whether the question at issue, between the two witness- 
 
 («) See Note 507, p. 726.
 
 Ch. 8. 1 Of the Examination of Witnesses. 271 
 
 es, is a quesiion of credit, or whether it is to be considered rather Leading 
 
 as a question of mere memory, leading is, in eiihcr point of view, '^"^^ '"l! 
 
 equally objectionable. If it is a question of memory, the only fair 
 way of trying it, is by allowing the witness to speak for himself 
 unprompted, as his own memory may suggest. If the question is 
 one of credit, then it is undoubtedly due to the person, whose vera- 
 city is impeached, that the contradictory statement, supposed to 
 have been made by him, should be distinctly proved, without 
 the aid of leading, and without any undue influence. Upon the 
 whole, therefore, the most unexceptionable and proper course ap- 
 pears to be, to ask the witness who is called to prove a contradicto- 
 ry statement made by another witness, what that other witness 
 said relative to the transaction in question, and not in the first in- 
 stance to ask, in the leading form, whether he said so and so, or 
 used such and such expressions: After an answer has been given 
 to such inquiry, it would be proper for the purpose of making the 
 contradiction more cotnplete, to ask whether the former witness 
 has, or has not, used the expressions imputed to him. (1) 
 
 In the case of Courteen v. Touse, (2) Lord Ellenborough allow- 
 ed the counsel for the defendant to put a leading question to a wit- 
 ness called by him, in order to conliadict a witness who had been 
 called by the plaintiff. In that case, one of the witnesses of the 
 plaintiff, having been cross-examined as to the contents of a letter, 
 received by him from the plaintiff (which letter had been lost,) and 
 having mentioned in his cross-examination some particular ex- 
 pressions as part of the contents, witnesses were called on the part 
 of the defendant, to speak to the contents of the same letter, and 
 Lord Ellenborough allowed the defendant's counsel to ask one of 
 the witnesses, who had first stated all he recollected of the letter, 
 whether it contained the particular words and expressions, as rep- 
 resented by the plaintiff's witness. Here the object of the exam- 
 ination was (not, as in the case above supposed, to show that a 
 former witness had given two diff rent representations of the same 
 transaction,) but to ascertain a material fact in the case by means 
 
 (1) See Edmonds v. Walter, 8 (2) 1 Campb. 43. 
 Stark. N. V. Q. 8.
 
 2/2 Of the Examination of Witnesses. [Cli. 8. 
 
 Cross-exarain- of tlie plaintiff's letter; and as the plaintiff's witness had stated 
 J^ what he conceived to be the language of the letter, and the defend- 
 ant's witness had, on the other side, given his account of its con- 
 tents, it then became perfectly reasonable to allow the question, 
 whether the letter contained such expressions, as represented by 
 the witness on the other side, or any to that effect. Lord Ellen- 
 borough held, that "after exhausting the witness's memory as to 
 the contents of the letter," (not, however, by leading questions, 
 but by examining him in the regular manner,) " the witness might 
 then be asked, whether it contained a particular passage, recited to 
 him, which had been sworn to on the other side; otherwise it 
 would be impossible ever to come to a direct contradiction." 
 
 Cross-eiamin- In cross-examinations, the object of which is to sift evidence 
 and try the credibility of the witnesses, a great latitude is allowed 
 in the mode of putting questions.* The rule, however, is still 
 subject to certain limitations. A witness cannot be cross-exam- 
 ined as to any fact, which, if admitted, would be collateral, 
 and wholly irrelevant to the matter in issue, for the purpose of 
 contradicting him by other evidence, in case he should deny the 
 fact, and in this manner to discredit his testimony. (1) And if 
 Irrelevant the witncss answer such an irrelevant question, before it is dis- 
 quesuon. allowed or withdrawn, evidence cannot afterwards be admitted 
 
 (1) Spenceley v. de Willot, 7 East, lOS. 
 
 * Sir William Bliickstone has referred, in his Commentaries (B- 3, Ch. 23,) to a 
 well-known passage of Quintilian; in which that niost judicious of all the ancient 
 rhetoricians gives some excellent hints on the art of cross-examination. " Primum 
 est, nosse lestem. Nam limidus terreri, slultus decipi, iracundus concitari, ambi- 
 tio>us inflari potest; prudens vero el constans vel, tanquam inimicus et pervicax, 
 dimittendus statim, vel non interrogalione, sed brevi inlerioculione patroni, refutan- 
 dus est: aut aliquo, si coniinget, urbane dicto refrigerandus; aut, si quid in ejus 
 vitam dici poterit, infamia criminum destruendua Probos quosdam et verecundos 
 non aspere incessere profuit; nam saspj, qui adversus insectantem pugnassent, 
 modeslii mitigantur. Omnis autem interrogalio, aut in caus\ est, aut extra cau- 
 sam. In caus!, (sicut accusatori prEBcepimus,) palronus quoque aliius, nude nihil 
 suspecti sit, repelia pcrcontatione, priora sequenlibus applicando, '^■S'\y: eo perducit 
 honiiiies, ut invitis, (jiiod piosit, extorquent. Ejus rei sine diibio nee di.<ciplina ulla 
 in sclioiis, nee excrcitalio tiaditiir: et naturali magis acumine, aut usu, con ingit 
 hcEC virtus. * * In primis interrogalio debet esse circumspecta ; quia muita 
 contra paironos vensutJ testis saepe respondet, eique prascipui vulgo favetur. Turn 
 verbis quam maxime ex nieriio sumptis: ut qui ros.-itur (is autem est sajpius et iui- 
 peritus) intelligat, aut ne intelligere se negt, quod iulerrogantis non leva frigua est." 
 Quintil. Inst Urat. lib. v. c. 7-
 
 Ch. 8.] Of the Examination of Witnesses. . 273 
 
 to contradict his testimony on the collateral matter. (I) Such a C^fos*-«-'*a'n>n- 
 
 course would often produce great confusion and embarrassment. '. , 
 
 The simplest issue on record might thus branch off into a variety 
 of collateral issues perfectly immaterial, (r) 
 
 In the application of this rule of cross-examination, the principal What « r«Ift. 
 tiling to be considered will be, whether the question is irrelevant to 
 the points in issue between the parlies. In an action for usury, it 
 would be entirely immaterial and irrelevant, to cross-examine the 
 witness respecting other contracts, supposed to have been made by 
 the defendant, unless the witness had first said, that the contracts 
 were the same; and that was the point in the case of Spencely v. 
 De Willot. (2) To inquire of a witness, in cross-examination, 
 whether he had not attempted to dissuade another witness, exam- 
 ined on the opposite side, from being present at the trial, has been 
 held to be so far immaterial to the issue, that if the witness answer 
 in the negative (namely, that he never made such an attempt,) 
 evidence, to contradict him on that point, would not be admissi- 
 ble. (3) However thai may be, it is not irrelevant, on the trial of 
 a prisoner, to cross-examine the witness to tiiis fact, whether in 
 consequence of being charged with robbing the prisoner, he had 
 not said, that he would be revenged upon him; and, if the wit- 
 ness should deny havir)g used such a threat, evidence niay be giv- 
 en to contradict him. (4) (to) 
 
 If a witness is called hv a party irjerely for the purpose of pro- Witness, pre- 
 (lucnig a written mstrument, belongmg to the parly, vvliicn is lo and not ■worn, 
 be proved by another witness, he need not be sworn; and if not 
 
 sworn, he will not be subject to cross-examination. (5) If a wit- Sworn and ex- 
 
 •" . , ainined. 
 
 ness is sworn, and gives some evidence, (as provmg an instru- 
 ment,) however formal the proof iray be, he is to be considered 
 a witness for all purposes ; and this, although he may be sub- 
 stantially the real party in the suit, and the parly on the record 
 
 (1) Harris V. Tippet, 2 Compb. 68S, one of ihe witnessos for the pro^ecu- 
 before Lnwrence, J. tion, had endi-avoured to suborn wit- 
 
 (2) 7 East, 108. nesses to give falso evidence again.st 
 (."?) Harris v Tippet, 2 Campb. 637, the prisoner, 7 Howell, St. Tr. 1400. 
 
 by Lawrence, J. On the trial of Lord (4) Yewin's rase, 2 Campb. 688. 
 
 Stafford, proof waa admitted, on the n. before Lawrence, J. 
 
 part of the prisoner, that Dugdale, (5) See part 2, ch. 8, s. 2, infra. 
 
 (v) S«e Note 608, p, T26. (u>) See Nota 509, p. 72«. 
 
 Vol. I. 86
 
 274 • Of the Examination of Witnesses. [Cli. 8. 
 
 Cross-examin; a mere nominal party. (1) If he is sworn, and would be compe- 
 
 '*'°"; tent to give evidence for the party calling him, the other party will 
 
 Sworn, and not in strictness be eniiiled to cross-examine him, though he has not 
 been examined in chief. (2) If he would not be competent to give 
 evidence for the party calling him, and is called only to produce a 
 writing in his possession, and on being called is sworn, but gives 
 no evidence in chief, the circumstances of having sworn this in- 
 competent witness without examining him, will not entitle the op- 
 posite party to cross-examine. (3) [x) 
 
 Witness, after j • ,.gpo,.tg(| jq i,ave been ruled at nisi prius, that if a witness 
 cros3-examina- r r ' 
 
 tion, called by has been once examined by a party, the privilege of cross-exami- 
 nation continues in every stage of the cause; so that the other 
 party may call the san)e witness to prove his case, and in examin- 
 ing him may ask leading questions. (4) In the case referred to, 
 the witness might possibly have shown a strong bias in favour of 
 the first party that called him, and on this account perhaps a great- 
 er scope was granted to the adverse party, than is usually allowed. 
 It may happen, on the other hand, that the plaintiff calls a witness 
 unwillingly, and from mere necessity, knowing him to be fa- 
 vourable to the other side: in such a case to allow the defendant, 
 on calling him up afterwards as his own witness, to put leading 
 questions, would be giving hiai an unreasonable advantage. On 
 the contrary, the Court might perhaps be induced to invest the 
 plaintiff's counsel with some of liie powers of cross-examination, 
 at the same time that it would probably oblige the defendant's 
 counsel to treat such a witness strictly as his own, and confine him 
 within the limits of an examination in chief. {\j) 
 
 (1) Morgan v. Bridges, 2 Starkie, N. by the jiislii:e's clerk ; when h wa» 
 P. C. 314. insisted by the defendant's counsel, 
 
 (2) R. V. Brooke, 2 Starkie, N. P. that, he should be allowed to crosB- 
 C. 473. Philips V. Earner, 1 Esp N. examine the justice who had produc- 
 P. C. 337. In Simpson v. Smith and ed the information ; but Holroyd, 
 another, (an action for maliciously, J. held, that this could not be done, 
 and without prohablo cause, making and that the plaintiff's counsel mi"ht 
 a charge of felony before a justice, jirocced to prove the information in the 
 against the plaintiff", and causing him regular manner. 
 
 to be apprehended, tried at Nott. Sum (3) Reed v. James, 1 Stark. N. P. 
 
 Ass. 1822, before Holroyd, J.) the plain- C. 132. 
 
 tiff's counsel having called upon the jus- (4) Dickenson v. Shee, 4 Esp. N. P. 
 
 tice to produce the information taken by C. 67. 
 
 him, which was accordingly produced, 
 
 was proceeding tq prove the information 
 
 (x) See Note 610, p 730 {y) See Note 511, p. 730,
 
 Cli. 8.] Of the Examination of Witnesses. 21b 
 
 Leading ques(ioiis ;ire adiiiiltcd in the cross-exaajiiialion of a Cross-exami- 
 , , , . II- nation. 
 Witness where niiicli larger powers are given to counsel than in 
 
 ihe orisrinal examination, (z) Witnesses, upon the cross-examina- ^^^"'"S '". 
 ~ ^ ' ' cros3-exami- 
 
 lion, may be led inimediately to the point, on which their answers nation. 
 
 are required. (1) If they belrav a zeal against the cross-exaniin- ,, .... 
 
 . . ' . . . Unwilling wil- 
 
 ing party, and sliovv an 'unwillingness to speak fairly and itnpar- ness. 
 
 lially, they may be questioned with minuteness as to particular 
 facts, or even particular expressions. There can be no danger in 
 leading too much, where the witness is obstinately detertnined not 
 (o follow. On the other hand, instances frequently occur, where wiHing. 
 the witness is adverse to the parly who calls him, and leans strong- 
 ly to the other side; here tiiere must be, in reason and justice, 
 some restrictions as to ihe form and manner of cross-examining. 
 It often happens, that a witness in cross-examination waits only for 
 a hint, to shape a favorable answer, and is in effect the witness 
 of the cross-exaHjining j)arty, tiiough technically called the wit- 
 ness of the opposite side. To put strong leading questions to such 
 a witness, without limitation or reserve, is substantially preparing 
 a statement for him, and appears to be inconsistent with justice and 
 a fair trial, (a) 
 
 An instance of the kind, here described, occurred on the trial of 
 Hardy for high treason. (2) A witness, who was a member of the 
 same corresponding society as the prisoner, having been examin- 
 ed on the part of the prosecution, and having made, on his 
 cross-examinalion, a favorable representation of the political opin- 
 ions and designs of the societ}', was asked, whether some of the 
 members had not used certain expressions on the subject of peti- 
 tioning; upon which, the Lord Ch. Justice Eyre reminded the 
 counsel, that he could not put the vevy words into the witness's 
 mouth; that this was contraiy to the practice of his coiu't and to 
 his opinion. And on the following day, (3) when the subject oc- 
 curred again, Mr. Justice Duller refered to the rule laid down by 
 the Chief Justice, as the correct rule of practice; and added, "You 
 may lead a witness upon a cross-examination, to bring hiui direct- 
 ly to the point as to the answer; but not to go the length, as was 
 
 (1) See Hardy's case, 24 Howell's (2) 24 Howell's St. Tr. 659. 
 fit. Tr 755, by Duller, J. (3) 24 Howell's St. Tr. 755. 
 
 (2) See Note 612, p. 731. (a) Sec Note 613, p. 731.
 
 276 Of the Examination of Witnesses. [Ch. 8. 
 
 Obligation to attempted yesterday, of putting into the witness's tnouth ihe verj 
 
 answer. , . • i i • i i i • ?> 
 
 ^ words, which he is to echo back again. ' 
 
 Privilege of fi^g privilesa of witnesses, in not being compellable to answer 
 
 witness in not i o , . . . r,,. , 
 
 answering. certain question?, is a subject of some importance. 1 he cases here 
 considered, are those, in which the witness might, by answering, 
 subject himself to a penalty or criminal prosecution, to civil pro- 
 cess, or to any kind of forfeiture: and, lastly, where the question 
 put to him is degrading to his character. 
 
 1. Where tho First, a witness cannot be compelled to answer any question, 
 
 answer niiglit , • , , i i • i , t • ! 
 
 Bubject topen- which has a tendency to expose him to a penalty, or to any kind 
 allies, &c. QJ- punishment, or to a criminal charge. ( I) (c) On an indict- 
 ment for a rape, the woman is not obliged to answer, whether oa 
 some. former occasion, she had not a criminal connection with oth- 
 er men or with palicular individuals; (2) nor is evidence of such 
 criminal intercourse admissible. (3) On an appeal against an or- 
 der of bastardy, a person cannot be compelled to acknowledge him- 
 self thi father of the bastard child: but there is no objection to his 
 being sworn, and, if he chooses, he may confess the fact. (4) In 
 an action for a libel, which was published by the defendant in a 
 voluntary afiidavit, sworn extrajudiciiilly before a magistrate, it 
 has been held, that the magistrate's cl 'rk is not bound to answer, 
 whether he wrote the affidavit, and delivered it to the magistrate; 
 because, it is said, the bare copying out of a libel is criminal. (5) 
 An accomplice, who is admitted to give evidence against his asso- 
 ciate in guilt, though bound to make a full and fair confession of 
 ih.e whole truth respecting the subject-matter of the prosecution, 
 
 (I) Sir J. FrijnJ'a ca^s, 4 St. Tr. tliiy ara required to give evidence; 
 
 6, S C. 10 Howell's St. Tr. 109). such :n st. 4> G. 3, c 126, in llu im- 
 
 Lord iMicclosiield'.s case, 6 St. Tr. peacliinent of Lord Melville; and si. 
 
 649, S. C. 16 [lowell's St. Tr. 1149. i, 2 G 4, c. 21, on ihe inquiry re- 
 
 R. V. Ld. G. Gordon, 2 Doug 59-3. spaciting eleRiions at Graiiipound 
 
 Title V. Grevet, 2 Ld Rayni. 103S. (2J Hodgson's case, 1 Russ. & Ry. 
 
 16 Ves. jun. 242. Hardy's c;ise, 24 Cr. C. 211. Dodd v. Norris, S 
 
 Howell's St. Tr. 720. Trial of De Campb. 619. 
 
 Berenger and others, by Gurnev, p. (3) Hodgson's case, 1 Rubs. Si Ry. 
 
 195. ('ales v. Hardacre, 3 Taunt. Cr. C. 211. 
 
 424. Parkhurst V. Lowien, 2 Svvanst (4) R. v. St. Mary's, NoUinghanfi, 
 
 Lh. R. ?.16. See also 16 C. 2, s. 1, 13 East, 53, n. 
 
 c. 12, 8. 4, and Preanib. of st. 46 G. (5) .Maloney v. Bartloy, before 
 
 2, c. 37. Acts of indemnity to wit- Wood, B , 3 Campb. 210 A bill of 
 
 nesses are often passed, to absolve exceptions wan tpnderad, bnt aftar- 
 
 thein from penalties and prosecutions, wards dropped. 
 
 en nccount of transaclioni of which 
 
 (/>) See Note 514, p 784. («r) B«« Note 516, p 784.
 
 C"h. 8.] Of the Examination of H'itnesscs. 277 
 
 is not bound to answer with respect to his share in otlier offences, Obligation t» 
 
 , , . r I • answer. 
 
 in which he was not concerned witli the prisoner; lor lie is not 
 
 prelected from a prosecution for such ofienccs. (!)((/) 
 
 Secondly, as to the case, where the witness, by answering 2. Where ih« 
 
 •' ' ' • ir • I answer iiiiglit 
 
 might subject himself to a civil action, or charge himself with a subject to * 
 debt. Considerable doubts have been entertained upon this point ;*^"'' 
 some judges being of opinion, that lie is not compellable to answer 
 such questions, and others being of a contrary opinion.* ^J'o 
 settle the rule of law on this subject, the sla'. 45 G. 3, c. o7, was 
 introduced, which declares, that a witness cannot legally refuse 
 to answer a question, relevant to the matter in issue, (the an- 
 swering of which has no tendency to accuse himself, or to ex- 
 pose him to penalty or forfeiture of any nature whatsoever,) on 
 the ground, that the answering of such question may establish, 
 
 (I) West's cas2, supra, p. 3S, n. 
 
 * This subject was much discussed, in the course of tlie impeaclinr.ent against 
 Lord Melville, and referred to the Judges for their opinion. The only report 
 which the author h:is seen, of these proceedings, is that to be found in the sixth 
 volume of the PiirliamenlMry Debates; from which the following brief account is 
 extracted. A bill had been brougiit into the House of Lords, to indemnify wit- 
 nesses from criminal prosecutions and civil process, to which they nnglit be e.\- 
 posed by giving evidence, 'i he indemnity from crimin-il prosecution was agreed 
 to; but some doubts arising wiih respect to the indemnification from civil process, 
 Beveral questions were referred to the .Fudges, with the view of ascertaining, whelli- 
 er persons were legally justified in refusing to answer questions, the result of which 
 might sul)ject them to a civil suit. (« vol. Pari. Deb. p. 167.) Three question* 
 were proposed; the object of the first and second was to ascertain, whether a wit- 
 ness could demur to answer a question, the result of which might render him liable 
 to an action for debt, or to a suit for the recovery of the profits of public money; 
 the object of the third was to ascertain, whether a witness, wiio, on making a full 
 and fair disclosure, was to be excu.sed from certain debts, could be legally ob- 
 jected to, on the ground of bis being interested. (P. 222 ) The Lord Ch. Justice 
 Mansfield, who delivered the opinion of the judges, stated, that upon the two 
 first questions tlioy were divided in opinion; and that on the third question they 
 were unanimously of opinion, that a witness, in the situation described , could not 
 be rejected on the ground of interest, since whatever might be ofVered, on condition 
 of his making a f.iir and full disclosure, could legally male no difibrence with re- 
 spect to his evidence, the witness being bound by his oath, by law, Uiorality, and 
 honour, to declare the truth, the whole liutb, and nothing but the truth. (P. 223.) 
 The House of Lords then c.illed upon the Judges to deliver their opinions seialim 
 on the proposed questions. (P. 226, 227.) The Judges accordingly delivered 
 their opinions in order. Four of the Judges (Lord Ch. Justice Mansfield, Grose, 
 J., Rooke, J , and Thompson, J.) were of opinion, that a witness was not compel- 
 lable to answer any question, the answer to which might subject him to a civil ac- 
 tion: the other Judges, together with the Lord Chancellor, and Lord Eldon, wer« 
 of the contrary opinion. (P. 234, 245 ) 
 
 (d) Seo Note 516, p. 7»4.
 
 *-278 Of the Examinalion of Witnesses. [Cli. 0. 
 
 Obligation to or (eod to establi:^li, that lie owes a debi, or is oilierwiso subject to 
 
 answer. ... . , , 
 
 a Civil suit, (e) 
 
 The right, which ilie parlies to a suit have, to refuse answering 
 any question, is not in any degree affected by this statute; and 
 therefore on a question of settlement, a rated parishoner is not 
 compellable by the adverse parish to give evidence, as he is direct- 
 ly interested as party to the appeal, and does not come within tho 
 words or meaning of the act. (l)( J) 
 
 3. Where the Thirdly, a witness is privileged from answering any question, 
 subjectio for- the answer to which might subject him to a lorfeiture of his es- 
 teiture. \di\e. The declaratory statute, above referred to, iuijiiies that a 
 
 witness may legally refuse to answer a question, which has a ten- 
 dency to expose him to a forfeiture of any nature whatsoever. At 
 the time of passing that act, when the general privileges of wit- 
 nesses were much discussed, it was proposed to insert in the act a 
 proviso, that no mortgagee, or bona fide purchaser, or possessor of 
 an estate, should bo compelled to answer any question, the answer- 
 ing of which might probably lend to defeat his title, or incur a for- 
 feiture of his estate. This [)roviso was afterwards withdrawn. 
 However, several of the judges, who on that occasion were of opin- 
 ion, that the liability to a civil action, or to a pecuniary charge, 
 ought not to exempt a witness from answering questions, yet con- 
 sidered the probabihty or danger of incurring a forfeiture of estate 
 to be a legal ground of exemption. And it is an established prin- 
 ciple in courts of equity, that a party is not bound to answer, so as 
 to subject himself to pains or penalties, or to any kind of punish- 
 ment, or to any forfeiture of interest. (2) ( ^) 
 
 4. VVhere tho ^\\e last case, to be mentioned on this subject, is, where a ques- 
 
 nnswer mi"lit . . , , , i • i i i' i i 
 
 decade the tiou IS asked, tlie answer to which lias a direct tendency to de- 
 witness's char- grade the witness's character, though it may not subject him to 
 a criminal prosecution. If a witness, for instance, were to be 
 asked, whether he had not suffered some infamous punishment, 
 or ifanv other question of the same kind were asked, imputing 
 
 (1) R. V Inhabitants of Woburn, (2) The cases upon this subject ai« 
 
 10 East, 395. See 54 G. 3, c. 170, collected in Mitford's Treat, on Chan, 
 •tated supra, p. 72. Pleadings, 157 — 163. 
 
 (e) S«e Note 517, p. 739. (/) See Note 518, p. 741. (g) See Note 619, p. 741.
 
 Ch. 8.1 Of the Examination of Witnesses. 279 
 
 guilt to the witness in some past transaction, and not relevant to Obligation to 
 
 the matters in issue, would he be compellable to answer, (/i) The ; 
 
 inquiry here made, it is to be observed, relates only to such ques- 
 tions as are not relevant to the matters in issue; for if the transac- 
 tion, "to which the witness is interrogated, form any part of the is- 
 sue, he will be obliged to give evidence, however strongly it may 
 reflect upon his character, (i) 
 
 There seems to be no reported case, in which this point has 
 been solemnly determined; and, in the absence of all express au- 
 thority, oiiinions have been much divided. The advocates for a General rea- 
 . .... . soning. 
 
 compulsory power in cross-examination maintain, that, as parties 
 
 are frequently surprised by the appearance of a witness unknown 
 to them, or, if known, entirely unexpected, without such power 
 they would have no adequate means of ascertaining what credit 
 is due to his testimony; that on the cross-examination of spies, in- 
 formers, and accomplices, this power is more particularly necessa- 
 i<y; and that if a witness may not be questioned as to his charac- 
 ter at the moment of trial, the properly and even the life of a party 
 must often be endangered. — Those, on the other side, who main- 
 tain, that a witness is not compellable to answer such questions, 
 argue to the following efiect. They say, the obligation to give 
 evidence arises from the oath, which every witness takes; that by 
 this oath he binds himself < nly to speak touching the niatrers in 
 issue; and that such particular facts as these — whether the wit- 
 r;oj-s l;as been in gaol for felony or suffered some infamous punish- 
 ment, or the like, — cannot form any |)art of the issue, as a[)pears 
 evident from this consideration, that the party, iigainst whom the 
 witness is called, would not be allowed to prove such particular 
 facts l)y other witnesses. They argue, further, that it would be an 
 extreme grievanc e to a witness to be compelled to disclose pasi 
 transaciioi's of hi? life, which may have since been forgotten, and 
 to expose hi-; chaiacter afresh to evil report, when, perhaps, by his 
 subscq'.ient conduct, he may have recovered the good opinion of the 
 world: that if a witness is privileged from answering a question, 
 though relevant to the matters in issue, because it may tend to 
 subject hiru to forfeittne of property, with much more reason ouglit 
 he to be excused from answering an irrelevant question to the dis- 
 paragement and forfeiture of his character: that in the case of 
 
 (A) See Nolo 620, p. 741. (t) See Note 62!, p. 742
 
 280 Oftht ExQmination of I'Vitnesses. [Ch. 8. 
 
 Obligation !• nccomplices, ill wliicli lliis compulsory power of cross-examination 
 
 ^^^^j is iliought to bo more pariiculaily necessary, the power may be 
 
 properly conceded to a certain extent, because accomplices stand 
 in a peculiar situation, being admitted to give evidence only under 
 ibe implied condition of making a full and true confession of tho 
 whole trutlj; but even accon)plices are not to be questioned, in 
 their cross-examination, as to the other oflences, in which they hava 
 not been concerned with the prisoner: (1) and with respect to 
 other witnesses, the best course to be adopted, both in point of con- 
 venience and justice, is to allow the question to be asked, at the 
 same time allowing the witness to shelter himself under his privi- 
 lege of refusing to answer, and, if he refuses, to leave it to the jurjr 
 to draw iheir own conclusion as to his motives for such refusal. 
 
 Anthoriiie*. Although there appears not to be any express decision on tho 
 
 point, whether a witness is compellable to answer questions degrad- 
 ing to his character, yet several opinions have been pronounced by 
 judges of great authority, from which it may be collected, that the 
 witness is not compellable to answer such questions. They are as 
 follows: 
 
 Witness not 1 . In Cook's case, reported in the State Trials, (2) where a ques- 
 
 compellable to jj^j^ arose, whether a juryman, who had been challenged, njisihl 
 
 ■nswer. . o ^ _ 
 
 be examined as to his having asserted the guilt of the prisoner 
 before the trial, C. J. Treby said, "You may ask upon the voir 
 dire., whether he has any interest in the cause, nor shall we deny 
 you liberty to ask, whether he is qualified according to law by 
 having a freehold of sufficient value; but that you may ask a 
 jury (3) or icitness every question that will not make him crimi- 
 nous, that is too large. J\Ien have been ashed^ whether they have 
 been ccnvicled and pardoned for felony^ or whether they have been 
 whipped for petty larceny^ but they have not been obliged to ansicery 
 for although their answer in the affirmative will not make them 
 criminal, nor subject them to punishment, yet they are matters 
 of infamy, and if it be an infamous things that is enough to pre- 
 serve a man from being bound to answer. A pardoned man is not 
 
 (1) See West's case, supra, p 38, n. all's St. Tr. S34, S. C. 1 Salk. 168. 
 
 (2) 4 St. Tr. 748, S. C. 13 How- (8) Sea also Co. Litt. 168, b.
 
 Ch. 8.] Of the Examination of Witnesses. 281 
 
 guilty: his crime is purged. But merely for the reproach of it, ^l^^'i^^'o" '" 
 
 , , • • ,,.,,, answer. 
 it shall not be put upon him to answer a question^ ivhereon he icill be 
 
 forced to forswear or disgrace himself. So, persons have been excused 
 from answering, xohcther they have been committed to brideivell as pil- 
 ferers or vagrants, ^'c; yet to be suspected is only a misforluno and 
 shame, no crime. The like has been observed in otiier cases of 
 odious and infamous matters, which are not crimes indictable." 
 
 2. On the trial of Sir John Freind for high treason, (1) a ques- 
 tion arose as to the propriety of asking a witness whether he was 
 a Roman Catholic. Tlie Court determined, that the question 
 could not be asked, as the witness might, by his answer, subject 
 himself to several penalties. C. J. I'reby, on that occasion, said, 
 " No man is bound to answer any questions, thatwill subject him to 
 penalties or to infamy. If you should ask him, whether he were a 
 deer-stealer, or whether he were a vagabond, or any other thing 
 that will subject him to punishment either by statute or by com- 
 mon law, whether he be guilty of a petty larceny, or the like, the 
 law does not oblige him to answer any such question." 
 
 3. In Layer's case, (2) on an indictment for high treason, the 
 prisoner insisted, that a witness should be examined on the voire 
 doire, whether he had a promise of pardon, or some other reward, 
 for swearing against him. The point was argued by his counsel, 
 and overruled by the Court. The Lord Ch. J. Pratt said, " You 
 see, the most you can make of it is, that it is an objection to his 
 credit; and if it goes to his credit, must he not be sworn, and his 
 credit left to the jury.-* He must be examined as a legal witness. 
 But if this man, under expectation or promise ofapardon, comes here 
 to swear that which is not true, and you uwuld ask him to that, he is not 
 obliged to answer it. J^obody is to discredit himself, but alwnys to 
 be taken to be innocent, till it appear otherwise. 1^ they who ask 
 the question, insinuate any thing like that, (namely, tliat the witness 
 can give no evidence except what is false,) it ought to have an an- 
 
 (I) 4 St. Tr. 259, S. C. II How- (2) 6 St. Tr. 259, S. C. 16 How- 
 ell's St. Tr. 1331. This opinion of ell's St, Tr. 161. 
 Chief Justice Treby was approved 
 of by Lord Ellenborough in iho case 
 of R. V. Lewis, 1 Esp. N. P. C. 225. 
 
 Vol. I. 36
 
 282 Of the Examination of Witnesses. [Ch. 8. 
 
 Obligation to sxDtr; but If he has a promise of pardon, if he elves true evidence, 
 answer. ..... ' 
 
 -^ >t IS no objection to his being a witness, or to his credit." And 
 
 Mr. Justice Fortescue Aland, referring to a case cited, where a 
 similar point was made and overruled, said, " The reason the 
 Court gave, (that it was improper to ask this question on the voire 
 dire,) was, that if he had this promise, such promise was made 
 either to speak the truth, or to speak a falsehood; if it were to give 
 just and true evidence, there was no harm in it; and if it was a prom- 
 ise of pardon for speaking what was not true, the witness was not 
 bound to answer that question.'''' (j) 
 
 not^inegal'*'" Whether questions, of such a description, may not be legally 
 asked, is a very different point from that before considered, wheth- 
 er the witness is compellable to answer. It may be just to al- 
 low a witness the privilege of not answering in certain cases ; 
 but that the party, against whom the witness appears, shall not 
 be allowed to ask the question, and force him to his privilege, is 
 a proposition, which, if carried into practice, might often be at- 
 tended with dangerous consequences. There are two nisi prius 
 decisions, in which it seems to have been held, that a question, 
 the object of which is to degrade the witness's character, cannot 
 be properly asked.* However, there are many other cases, in 
 
 * R. V. LewJs, 4 Esp. N. P- C. 225. IMacbride v. Macbride, lb. 242. The case 
 of R. V. Lewis was at a prosecution for an assault. The report states, that the 
 prosecutor, vho tvas a common informer, and a man of suspicious character, was 
 asked, in the course of the cross-examination, vhether he had not been in the house 
 of correction; Lord Ellenborougli, it is said, interposed, and stated thai this question 
 should not be asked. The Chief Justice, in support of this opinion, referred to the 
 rule laid down by Ch. Justice Trehj, before mentioned, that a witness is not bound 
 to answer any question, the object ofvhich is to degrade or render him infamous ; 
 and added, that be thought the rule ought to be adhered to. Now, it seems proba- 
 ble, from the reasoning of Lord Ellenborough, and from the former part of the re- 
 port, stating, that the w'itness was a common infortner and of a suspicious charac- 
 ter, (which shows, that questions, reflecting upon his character, had been already 
 asked without objection, and hud been also answered,) it seems highly probable 
 from these circumstances, that the witness, on being questioned as to the particu- 
 lar fact of his iiaving been in a house of correction, either appealed to the Court for 
 protection, or showed an unwillingness to answer; and if, after this, the question 
 had been repeated, it might be thought nece.-ssary to interpose, and intimate, that 
 the witness could not be compelled to answer, and that the question, therefore, 
 ought not to be pressed; this shows the application of the rule, which Lord Ellen- 
 borough cited as having been laid down by Ch. Justice Treby, as to the privilege 
 of the witness in not answering, which would have been cited prematurely, if the 
 single point in discussion were, whether the question could in the first instance be 
 legally asked. The observation here made, will, perhaps, have more weight, when 
 
 (;■) See Note 522, a. p 74S.
 
 Ch. 8.] Of the Examination of Witnesses. 2<M 
 
 which qiieslions of this descriptioii have benn allowed by the Ohlization to 
 Court. (1) The opinion of Ch. Justice Treby, aiui (he other Judg- ^"*^^'^' 
 es, before cited, upon the point, wiieiher the witness is compellable 
 to answer, imply, that there is no objection, in point of law, to the 
 asking the question; but that tlie objection arises in a later stage 
 of the cross-examination, namely, when an attempt is made to 
 compel him to answer. They are as strong auihoriiies for the one 
 position as for the other. The same observation may be made al- 
 so with respect to the statute before referred to; which seems to 
 imply, that there is no legal objection to a question, which may 
 even subject the witness to forfeiture, although, if the question is 
 asked, he may legally refuse to answer. (2) In addition to this, it 
 may be observed, the common practice of courts of justice, before 
 the most approved Judges, will abundantly furnish instances of 
 such questions being asked, and not being disallowed as contrary 
 to the rules of law: and it is difficult to see, how a question can 
 
 (1) In the case of R. v. Edwards, 2 Stark. N. P. C 155. 2 Campb. 
 4 T. R. 440, on an application to bail 63S, S. C. The following case occur- 
 a prisoner, the Court allowed the red at the sittings in K. B. after liil. 
 counsel to ask one of the bail, whether Term, 1818. In the case of Frost v. 
 he had stood in the pillory for per- Ho'loway, Mr- Scarlet, in cross-ex- 
 jury; the question was objected to, amining a witness, asked him, whelli- 
 but the objection was overruled. In er he had not been tried for theft at 
 Watson's case, for high treason, ques- Reading. The witness refused to an- 
 tions of this description were fre- swer, and appealed to Lord Ellenbo- 
 quently asked; and it may be inferred rough, whether he was bound to an- 
 from the opinions of the judges, on swer such a question. Lord Ellen- 
 an argument in that case, that such borough said, " If you do not answer 
 questions are regular. See Gurney's the question, I will commit you ;" ad- 
 Report of Watson's Trial, 288 — 291. ding, " you shall not be compelled to 
 An instance occurred also in Lord say whether you were guilty or not." 
 Cochrane's trial, p. 419, by Gurney; IMS. note communicated by Mr. Gur- 
 and in Hardy's case, 24 Howell's St. ney, who was counsel in the cause. 
 Tr. 726. See also H East, 311. (2) 46 G. 3, c. 37, supra, p. 277. 
 Harris v. Tippet, cited by Abbott J. 
 
 it is remembered, that Lord Eilenborough continually permitted such questions to 
 be asked without the slightest disapprobation, a fict well known to all who are ac- 
 quainted with the practice of that great master of the law of evidence. Alacbride 
 V. Macbride, was an action of assumpsit; a woman having given evidence of the 
 plaintiff's demand, was asked on the cro.ss-e.\amiiiation, whether she did not live 
 in a state of concubinage with the plaintiff, when Lord Alvanley interposed, and is 
 reported to have said, he thought questions as to general conduct might be asked, 
 but not such as went immediately to degrade the witness. On the tiial of O'Coig- 
 ley and O'Connor, a question was asked iu cross-e.xamination, which threw an im- 
 putation on the witness, and the counsel was not allowed to repeat the question or 
 follow it up by another; but here the witness had first appealed to the Court for 
 protection. (26 Howell'a St. Tr- 1353.)
 
 284 Of the Examination of Witnesses. [Cli. 8. 
 
 Privileged properly be deemed illegal, when, if the witness chooses to answer, 
 
 conimiuii- i i u i • i • i ,, \ 
 
 cations. bis answer n:iiisl undoubtedly be received as evidence(/i;). 
 
 Answer, if Assuming, that a question is not irregular, merely from its ten- 
 
 made, con- , 1 > I • •( 1 1 I 1 • 
 
 elusive. dency to degrade the witness s character, and that the witness is 
 
 not compellable to answer, yet, if he chooses to give an answer, 
 the party, who asks the question, will be bound by his answer, 
 and cannot be allowed to falsify it by his evidence- " You may 
 ask the witness," said Lord Ellenborough in Watson's case,(l) 
 whether he has been guilty of such a crime (improperly asking 
 him in a degree, because you are calling upon him, upon the sanc- 
 tion of his oath, to answer that which he is not bound to answer, 
 for no man is bound to criminate himself); but if from a desire to 
 exculpate himself from the imputation of crime, he gives an an- 
 swer, it has been held by many of our Judges, and I never knew 
 it ruled to the contrary, that, having put such question, you must 
 be bound by the answer. The court is not a court to try a collat- 
 eral question of crime, and it would be unjust if it were; for how 
 can the party be prepared with a case of exculpation, or with an 
 answer to any evidence which may be produced to charge him? 
 there is no possibility of a fair and competent trial upon that sub- 
 ject, and, therefore, in no instance is it done." (Z) 
 
 Privileged There is another privilege, relating to certain kinds of informa- 
 
 communica- jJqj^ jj^ ^jjg l^iowledge of a witness, which courts of iustice will 
 not permit him to disclose. This is not the privilege of the wit- 
 ness, but may be justly called a public privilege, and is observed 
 by courts of justice on a principle of public policy, and from re- 
 gard to public interests. 
 
 A t f ffi ^^^ ^^^^ ^'^'^^ °^ Hardy for high treason, a witness, who had been 
 
 cer. employed by an ofScer of the executive government to collect in- 
 
 formation at a meeting of one of the corresponding societies, was 
 not allowed to disclose the name of his employer, or the nature 
 
 (1) Guniey's Rep. 2 vol. 28S. 32 Howeil's St. Tr. 490, S C. 
 
 (&) See Note 522, 1). p. 747. (/) See note 523, p. 748.
 
 CI). 8.] Of the Examination of Witrifsses. 285 
 
 of the connection that bad subsisted between himself and the Privileged 
 
 com mum- 
 officer. (1) cations. 
 
 Another witness, in the course of t'.ie same trial, bad made re- Agent of 
 r • ■ r y J- r r pol'ce. 
 
 ports, from tune to tmie, oi the j)roceedmgs ot some correspondnig 
 
 societies, and had made these reports by the advice of a third per- 
 son, and under the impression, that the information, contained in 
 the reports, would be transmitted to another quarter for the purpose 
 of disclosure; this witness was asked, whether he had communi- 
 cated his reports to a magistrate of any description; (2) Lord Ch. 
 Justice Eyre considered this a proper question; the witness, on 
 answering in the negative, was then asked, to whom he had made 
 the communication. This question was objected to; Lord Ch. 
 Justice Eyre, upon this, said, "It is perfectly right, that all oppor- 
 tunities should be given, to discuss the truth of the evidence given 
 against a prisoner; but there is a rule, which has universally ob- 
 tained, on account of its importance to the public for the detection 
 of crimes, that those persons, who are the channel, by means of 
 which that detection is made, should not be unnecessarily disclos- 
 ed; if it can be made to appear, that it is necessary to the inves- 
 tigation of the truth of the case, that the name of the person 
 should be disclosed, 1 should be very unwilling to stop it; but it 
 does not appear to me, that it is within the ordinary course to do it, 
 or that there is any necessity for it in this particular case." 
 
 The cross-examination of the same witness then proceeded, and 
 the witness admitted, that be had communicated what he knew to 
 a friend, who advised him to communicate his reports of the pro- 
 ceedings to another person. He was then asked, whether that 
 friend was a magistrate; this he answered in the negative: then 
 came the question, who was the friend.'' This was objected to; (3) 
 and the objection was, that the person, by whose advice the infor- 
 mation was given to a person standing in the situation of magis- 
 trate, was, to all intents and purposes, the informer, and that his 
 
 (1) 24 Howell's St. Tr. 753, on in the late prosecution of Watson for 
 
 cross-examination of Groves. The high treason. Gurney's Report, p. 
 
 same principle was acted upon in the 169. See also 32 Howell's St. Tr. 100. 
 
 prosecution of Home Tooke for high (2) 24 Howell's SU Tr. 808; on the 
 
 treason; in the prosecution of Walk- cross-examination of Lyman. 
 
 er and others for a conspiracy; and (8) 24 Howell's St. Tr. p. 811.
 
 286 Of the Examination of Witnesses. [Cli. 8. 
 
 Privileged name, therefore, could not be disclosed. (1) The Jiidees difiercd 
 coniinuni- ... . . . 
 
 cations. ill opinion upon this point; the Lord Chief Baron Macdonald and 
 
 JNIr. Justice Buller were of o|)inion, that the question was proper: 
 but the majority of the Court, consisting of the Lord Chief Justice 
 Eyre, Mr. Barron Hoiham, and Mr. Justice Grose, were of the op- 
 posite opinion. Lord Chief Justice Eyre said, " Those questions 
 which tend to the discovery of the channels, by whom the disclos- 
 ure was made to the oflicers^of justice, are not permitted to be asked , 
 Such matters cannot be disclosed, upon the general principle 
 of the convenience of public justice. All persons in that situation 
 are protected from discovery. It is no more competent to ask who 
 the person was that advised the witness to make the disclosure, 
 than it is to ask to whom he made the disclosure in consequence 
 of that advice, or than it is to ask any other question respecting the 
 channel of information, or what was done under it." Mr. Justice 
 Grose considered the adviser of the witness to be substantially in 
 the situation of an informer, and that his name, therefore, ought 
 not to be revealed. Mr. Baron Hotham also considered the per- 
 son to be an informer; the witness, he said, had made the com- 
 munication to his friend, under an impression and full persuasion, 
 that through him the intelligence might be -conveyed to a magis- 
 trate; and there was no distinction, he added, between making a 
 disclosure to the magistrate himself, or making it to another per- 
 son, who was to communicate it to the magistrate. The Judges 
 who were of opinion that the question might properly be asked, ad- 
 mitted the general ride, and diftered only in the application of that 
 rule to the particular facts of the case. The Lord Chief Baron 
 said, if he were satisfied that the friend to whom the witness dis- 
 closed this matter was in any way a link in the communication, 
 he should certainly agree that the rule applied to him; but this 
 person not being connected either with the magistracy, or the ex- 
 ecutive government, the case did not appear to him to fall within 
 the rule. IMr. Justice Buller admitted the rule with respect to the 
 informer to the utmost extent: " if the name of the informer," he 
 said, " were to be disclosed, no man would make a discovery, and 
 public justice would be defeated." (r») He admitted, also, that if 
 a middle man is made the channel of communication, he ought to 
 
 (1) 24 Howell's St. Tr. p. 814. 
 (m) See Note 524, p. 748.
 
 Ch. 8.] Of the Examination of Witnesses. 287 
 
 receive the same protection as the first person to whom it is men- Privileged 
 tioned. But he differed in opinion only as to the situation of the caUons"'" 
 
 friend, respecting which this question arose: in his view of the 
 
 evidence, he considered, that the witness had communicated the 
 information to another man, not for the purpose of prevaihng up- 
 on him to make the disclosure to a magistrate, but merely to 
 consult him for the purpose of making up his own mind wheth- 
 er he should himself make the discovery; he was, therefore, of 
 opinion that the witness ought not to be allowed to answer the 
 question. 
 
 Hence it appears, that a witness who has been employed to col- Result of 
 • /- 1 r c \ cases. 
 
 lect secret information for the use oi government, or lor the pur- 
 poses of the police, will not be permitted to disclose the name of his 
 employer, or the nature of the connection between that employer 
 and himself, or the name of any person from whom he may have 
 received the information, (l)or the name of the person to whom 
 he may have conveyed the information for the purpose of being 
 transmitted; or any other matter, which exposes the channel of 
 information. And as it would not be proper to enquire, to what 
 officer of government the information had been given, so neither 
 can it be asked, whether the communication has been made by 
 that officer to the government. (2) 
 
 Upon the same principle of public policy, official communica- Official com- 
 1 I \ ^ £c c ^ . munications. 
 
 lions between the governor and law-omcer oi a colony, respect- 
 ing the state of the colony, (3) — orders given by a governor of a 
 colony to a military officer, (4) — a correspondence between an 
 agent of government and a secretary of state, (.5) — the report of a 
 military court of enquiry, respecting an officer whose conduct the 
 Court had been appointed to examine, (6) — the official correspond- 
 
 (1) And see 2 Brod. & Bing. 162. (4) 2 Starkie, N. P. P. 183. 
 
 (2) R. V. Stone, cited by Lord El- (5) Anderson v. Sir W. Hamilton 
 lenborough in R. v. Watson, 2 Star- 2 Brod. & Bing. 156. Note. 
 
 kie. M. P. C. 136 32 Howell's St. (6) Home v. Lord T. Bentinck, 
 
 Tr. 101, S. C. Another example may 2 Brod. & Bing. 130. See Lee, q. t. v. 
 be seen in De Berenger's case, p. 344, Birrell, 4 Campb. 335. 
 of Gurney's report. 
 
 (3) Wyatt V. Gore, Holt, N. P. C. 
 299.
 
 288 
 
 Of the Examination of Witnesses. [Ch. 8. 
 
 Privileged ence between the commissioners and an officer of the customs, (]) 
 — are confidential and privileged commnnications, which courts of 
 justice will not allow to be disclosed, (ii) 
 
 comniuni 
 cations. 
 
 Privy coun- 
 ■ellor. 
 
 On the trial of the Earl of Stafford for high treason, in the 
 reign of Charles the First, that nobleman's confidential advice to 
 the king, at the council-table, was revealed by a privy counsellor, 
 and much pressed against the prisoner. This disclosure was in 
 violation of the oath taken by members of the privy council. (2) 
 Lord Clarendon, in his history, justly reprobates the proceeding, as 
 " tending to banish forever all future freedom from the council- 
 board, and from those persons from whom his Majesty was to ex- 
 pect advice in his greatest straits; all men satisfying themselves, 
 that they were no longer obliged to deliver their opinions there 
 freely, when ihey might be impeached in another place for so 
 doing." (3) 
 
 Member of In the case of Plunket v. Cobbett, (4) (which was an action 
 
 parliament. against the defendant for publishing a Jibel reflecting on the con- 
 duct of the plaintiff, as a member of the Commons' House of 
 Parliament in Ireland,) the counsel for the defendant enquired 
 of one of the witnesses, in cross-examination, as to the expres- 
 sions and arguments which the plaintiff had used in Parliament 
 on a particular subject, when Lord Ellenborough interposed, and 
 stopped the examination, observing, that it would be a breach of 
 duty in the witness, as a member of the Irish Parliament, and a 
 breach of his oath, to reveal the councils of the nation. 
 
 Grand jury- 
 man. 
 
 Witness be- 
 fore grand 
 jury. 
 
 It does not appear to be completely settled, that a grand-jury- 
 man is at liberty to disclose the evidence laid before the grand- 
 jury, in the course of a criminal proceeding. In an action on 
 the case, for maliciously indicting the plaintiff, Lord Kenyon is 
 reported to have allowed the counsel for the plaintiff to enquire 
 of a grand-juryman, whether the defendant was prosecutor of 
 
 (1) Black V. Holmes, Fox & Smith's 
 Rep. 28, K. B. in Ireland. 
 
 (2) 4 Inst. 54. 
 
 (3) See Lord Clarendon's History. 
 
 (4) 29 Howell's St. Tr. 71, 72. 
 
 (n) See Note 525, a. p. 749.
 
 Ch. 8.] Of the Examination of Witnesses. 289 
 
 the indictment; beine; of opinion, tiiat this inquiry did not infringe Privileged 
 
 ^~ • , III I • /,w \ communica- 
 
 upon the o&cial oath taken by the witness. (1) (o) tions. 
 
 On the trial of Watson for high treason, a witness was ques- 
 tioned by the counsel for the prisoner as to his having produced 
 and read a certain writing before the grand jury: this being ob- 
 jected to by the Solicitor-general, Lord Ellenborough C. J. said, 
 "he had considerable doubt upon the subject: he remembered a 
 case in which a witness was questioned as to what passed before 
 the grand jury, and, though it was a matter of considerable im- 
 portance, he was permitted to answer." The Solicitor-general 
 then intimating, that if such a case had not occurred, lie should 
 have thought that what passed before the grand jury could not 
 properly be enquired into, as they are sworn to secresy. Lord El- 
 lenborough added, that " he had doubts, and that many very emi- 
 nent men at the bar had entertained doubts upon the point; but 
 that he remembered the case perfectly." (2) Here the matter seems 
 to have dropped; and the question, as originally put, was not re- 
 peated. 
 
 A witness can depose only to such facts as are within his own Memorandum, 
 recollection, (p) But, to assist his memory, he may use a written 
 entry in a book, or a memorandum, or the copy of a memoran- 
 dum: [q) such entry or memorandum having been made at the 
 lime when the fact occurred, or recently afterwards : and if, 
 afier looking at ilie memorandum, he can positively swear to 
 the truth of the fact there stated, such evidence will be suffi- 
 cient. But if he cannot, from recollection, speak to the fact 
 any further, than as finding it stated in a written entry, bis 
 testimony will amount to nothing. (3) The entry, to which 
 the witness has recourse for assisting his recollection ought 
 to have been made by the vvilness himself, or, if made by an- 
 other, examined by him, while the fact was fresh in his mem- 
 ory. (4) It is always usual, and very reasonable, when a wit- 
 
 (1) SyUcs V. Dunbar, 2 Selw. N. (3) Saiidwell v. Saiidwell, by Holt 
 p. MS3. The only part of the oath C. J., Coinbeib. 445. Doe v. Per- 
 which can be supposed to be a bar to Kins, 3 T. R.. 752. Tannery. Taylor, 
 disclosure is ihe following: " the king's ib. 754. 8 East, 2S4, 289. Hedge's 
 counsel, your fellow's, and your own, case, 2S Howell's St. Tr. 13G7. 
 
 you shall keep secret." (4) Burrough v. Martin, 2 Campb. 
 
 (2) 32 Howell's St. Tr. 107. 112. 
 
 (o) See Note 525, p. 749. {p) See Note 526, p. 749. {q) See Note 527, p. 750. 
 
 Vol. I. • 37
 
 290 
 
 Of the Examination of fViinesses. [Ch. 8. 
 
 Opinion of ness speaks from menioranda, tliat the counsel should have an op- 
 witness. • r 1 1 • • 
 
 portunity of looUing at them, when he is cross-examining the wit- 
 ness. (1) (r) 
 
 Opinion of 
 witness. 
 
 Of medical 
 men. 
 
 Of underwri- 
 ters. 
 
 Ship-bni!der3. 
 Engineers. 
 
 The opinion of a witness, in general, is not evidence: the wit- 
 ness must speak to facts. But on questions of science or trade, or 
 others of the same kind, persons of skill may speak not only as to 
 facts, but are allowed also to give their opinions in evidence. Tiie 
 opinion of medical men is evidence as to the state of a patient, whom 
 ihey have seen. Even, in cases where they have not theiuselves 
 seen the patient, but have heard the symptoms and particulars of 
 his state, detailed by other witnesses at liie trial, their opinion on the 
 nature of such symptoms has been properly admitted. Thus, on 
 a question of sanity, medical men have been permiiled to foru) their 
 judgment upon the representation, which witnes es at the trial 
 have given of the conduct, mannei', and generiil appearance ex- 
 hibited by the patient. (2) So, in prosecutions for murder, they 
 have been allowed to state their opin ion, whether the wounds, de- 
 scribed by witnesses, were likely to be the cause of death. 
 
 The opinion of a person conversant with the business of in- 
 surance, on the question, whether a premium would have been 
 increased by the communication of particular facts, has been 
 thought admissible, as judgment in a matter of trade. (3) Ship- 
 builders have been admitted to state their o])inion on the sea- 
 worthiness of a ship, from examining a survey, which had been 
 taken by others, and at which they were not present. (4) In an 
 action of trespass, alleged to have been committed in ujaking an 
 embankment, which was said to have gradually choked up a 
 harbor, an engineer was permitted to prove, from his own ex- 
 periiiients, what were the effects of natural causes upon that 
 particular harbor, and on other harbors similarly situated on 
 
 (1) By 'Lord Ch. Just. Eyre, in whi.-h n pri-:oner ia Iried, was an act of 
 Hardy's case, 24 Howell's fct. Tr. insaniiy. II) 
 
 824. • i'-i) Barlhon v. Loii-iliman, 2 Slar- 
 
 (2) Wrisht's case, Russ. & Ry. l<ie. N. V. C 2.")8. Lul see Durrel v. 
 Cr. C. 456. Although they may be Bederley, Holt, N P. C. 286, staled in 
 admitted, after hearing .such evidence, vol. ii. 
 
 to give their opinion, wheiher certain (4) Thornton v. Royal Exch. Ass. 
 
 syiiiptoms arc isymptonis of insanity ; Company, Pcake, N. P. C. 25. Chaiirand 
 
 it seem.s, t! oy are not competent to v. Angerstein, do. 43. lieckwitli v. 
 
 give an opinion, whether an act, for Sydebothain, 1 Canipb. 117. 
 
 (r) See Note 528, p. 750.
 
 C'h. 8.] 0/ the Examination of Witnesses. 291 
 
 (he same coast, and that the removal of the bank would not, in his General 
 opinion, restore the harbor.(l) Wiiere the question is, wiiether a ^iuiess. 
 seal has heen forged, seal-engravers may be called to show a dif- " 
 
 ference between u genuine impression and that supposed to be 
 false. (2) And the opinion of an artist in painting is evidence as Artist. 
 to the genuineness of a picture. (3) (5} 
 
 There are several ways of impeaching the credit of a wit- Credit of wit- 
 
 nes^seg im- 
 ness. peached. 
 
 First, The party, against whom a witness is called, may dis- l- Proof of 
 ,.,,,. ... general char- 
 
 prove the tjcts staled by hmi, or may examine other witnesses as acter. 
 
 to his general character. To impeach the credit of a witness, says 
 Mr. Justice Buller, (4) you can only examine to his general char- 
 acter, and not to particular facts; and the reason given is, that 
 every man may be supposed capable of supporting his general 
 character, hut it is not likely he should be prepared to answer to 
 particular Hicts, without notice; and unless his general character 
 and beliaviour are in issue, he has no notice. If a witness, for ex- Collateral 
 ample, on being questioned, whether he has not been guilty of a 
 felony or of some infamous offence, deny the charge, the party, 
 against whom the witness has been called, will not be allowed to 
 prove the truth of the charge:(5) such evidence is not admissible, 
 either for the purpose of contradicting, or of discrediting him. 
 
 This principle has been established by many cases of great 
 authority. In the case of Rook wood, who was tried for high 
 
 (1) Folkos V.Chad, 1783, i\!3. S. appears to have been admitted ; as 
 C. ciled bv Buller J. in Goodtitle v. in Lord Castletnain's case, 7 Howell's 
 Bra!i;mi,4T. li. 498. St Tr. 1102, 1110. Cranburne's case, 
 
 (2) By Ld Mansfield, in Folkes v. 13 Howell's St. Tr. 261, ard Harri- 
 Cliad, ib. son's ca.-^e, !2 Howell's St- Tr. 862; 
 
 (3) On the admissibility of opinion, but no ob'eclion was made to tiie ev- 
 os to the genuineness of band-wiiting, idence, in those cases. 
 
 vide part 2, of ibis vol ch. 8, sect. 2. (5) RooUwood's case, and Layer's 
 
 (4) Bull. N. P. 296. See also case, cited (4) supra. R. v. Watson, 
 Rookwood's case, 4 St. Tr. 6S3, S. 3 Starkie. N. P. C 149. 32 How- 
 C. 13 Howell's St. Tr. 2!0. Lay- ell's St. Tr. 490, S. C. Shurpe v. 
 er's case, 6 St. Tr. 29-'^, 316, S. C. Scoging, Holt, N. P. C. .'541. The 
 16 Howell's St. Tr. 246, 2S4. De same rule is observed in the Courts 
 L.1 ftloite's case, 21 Hovvell'.s St. Tr. of Justice in Scotland; see Burnet's 
 811. In s. me instances, in the State Treatise of Crim. Law of Scotland, 
 Trials, evidence of p.irlicular facts p. 397. 
 
 («) See Note 529, p. 759.
 
 292 
 
 Of ihs Examination of Witnesses. [Ch. 8. 
 
 General 
 chnracter of 
 witness. 
 
 Mode of exa- 
 mining. 
 
 Answer. 
 
 treason, (1) the point was considered as too clear for argument: 
 " Look ye," said Lord Chief Justice Holt, "you may bring witness- 
 es to give an account of the general tenor of the witness's conver- 
 sation; but you do not think, that we v/ill try, at this tinfie, wiieth- 
 er ha be guilty of robbery." And on the trial of Layer for high 
 treason, (2) Lord North and Grey being called, on behalf of the 
 prisoner, to give a report of the character, which one of the witnesses 
 for the prosecution had given of himself much to his disadvantage, 
 the Lord Chief Justice Pratt said to the prisoner's counsel, " You 
 know what the rule of practice and evidence is, when objections 
 are made to the credit and reputation of the v/itness; you cannot 
 charge him with particular offences: for if that were to be allowed, 
 it would be impossible for a man to defend himself. You are not 
 to examine to particular fiicts, to charge the reputation of any wit- 
 ness; but you are to ask, in general, what is his character and 
 reputation." And in summing up the case to the jury, the Chief 
 Justice said, " The reason, why particular facts are not to be given 
 in evidence, to impeach the character of the witness, is, that if it 
 were permitted, it would be impossible for that witness, having no 
 notice of what will be sworn against him, to come prepared to give 
 an answer to it; and thus the characters of witnesses might be 
 vilified, without having any opportunity of being vindicated." The 
 point was much discussed in the late trial of Watson for high trea- 
 son; and the principle, above laid down, which had been settled 
 so long before, was again recognised and fully confirmed. (3) (<) 
 
 The regular mode of examining into general character is to 
 enquire of the witnesses, whether they have the means of know- 
 ing the former witness's general character, and whether, from 
 such knowledge, they would believe him on his oath. (4) Li 
 answer to such evidence against character, the other party may 
 cross-examine those witnesses, as to their means of knowledge, 
 and the grounds of their opinion; or may attack their general 
 
 (1) 4 St. Tr. 693, S. C. 13 How- 32 Howell's St. Tr. 490, 492, S. C. 
 ell's St. Tr. 211. (4) Rookwood's case, 4 St. Tr. 
 
 (2) 6 St Tr. 298, 316, S- C. 16 693, S. C. 13 Howell's St. Tr. 210. 
 Howell's St". Tr. 246, 286. Mawson v. Hartsink, 4 F.sp. N. P. C. 
 
 (3) Vol. ii. p. 28S, Gurney's Rep. 102. 
 
 (0 See Note 530, p. 763.
 
 Ch. 8.] Of the Examinaiion of Witnesses, 293 
 
 character, and by fresh evidence support the character of his own Contradictory 
 
 , , statements. 
 
 Witness, (w) 
 
 Secondly, The credit of a witness may be impeached, by proof, 2. Proof of 
 
 ■' contradictory 
 
 that he has made statements out ol court, on the same subject, statements. 
 contrary to what he swears at the trial. (1) A letter written by 
 him, or a deposition signed by him, may be used as evidence to 
 contradict his testimony; the letter, or deposition, being first regu- 
 larly proved. An examined copy of an answer in Chancery is 
 sufficient proof of the ansvi^er, for the purpose of contradicting a 
 witness. (2) A conviction before a magistrate, purporting to set 
 out the deposition of a witness, is not admissible, as proof of such 
 deposition. (3) 
 
 The verbal declarations or statements of a witness, made on 
 some former occasion to a third person, are frequently given in 
 evidence, by the party against whom the witness appears, with 
 the view of showing that his several accounts of the particular 
 transaction, on which he has been examined, are inconsistent 
 and contradictory. This evidence of contradictory statements is 
 produced, for the purpose of exciting doubt and distrust against 
 his testimony, as to the particular transaction, on which the dis- 
 crepancy arises, or, perhaps, to raise suspicion as to the truth of 
 his testimony, in general.* Before such evidence can be regular- Cros.s-esami- 
 
 , 1 • I I 1 ir r I • -11 1 -I nation as to 
 
 ly admitted on uel)alt ot the party, it will be necessary, m Hie -ter^a/ siate- 
 
 first instance, to prepare the wav for its admission, by cross "'!^"'^ "* ''^^ 
 
 ' ' ' ■' ' •' Witness- 
 
 examining the witness as to the supposed contradictory state- 
 ments, which are afterward to be brought forward against him. 
 
 (1) De Saiily v. Morgan, 2 Esp. N- B. & Cr. 25. 
 
 P. C. 691. Christian v. Coombe, 2 Esp. (3) R. v. Howe, 6 Esp. N. P. C. 125. 
 N. P. C. 489. 1 Campb. 461, S. C. 
 
 (2) Ewer v. Ambrose and another, 4 
 
 * According to the practice of the courts in Scotland, the credit of a witness can- 
 not be impeached by proof of his having given a different account of the matter on 
 a former occasion. The witness may, if he chooses, call for his declaration, (or de- 
 position, if lie has been sworn.) and have it cancelled in his presence, before his 
 examination begins, that he may be free, and unfettered, in giving his evidence on 
 the trial. And, if the declaration should not have been cancelled, it cannot be used 
 in any manner to the prejudice of the witness. See Hume's Com. on the Crim. 
 Law of Scotland, vol. li. p. 367; and Burnett's Trea. on the same subject, p. 467. 
 
 (u) See Note 531, p. 767.
 
 294 Of the Examinatum of Witnesses. [Ch. 8. 
 
 Contrndictory 'YW\s course of proceedin!^ is indispensable, from a principle of jus- 
 
 iipe due to t!ie witness; for as the direct tendency of the evidence 
 
 is to inipeach his veracity, by contrasting; h's present state will) 
 ihat sii[iposed to have been made by him to some other person, 
 common justice requires, that, before his credit is allacked, he 
 should have an opportunity of declaring, whether he ever made 
 such statement to that person, and of explaining, in the re-cxaml- 
 nation, the nature and particulars of the conversation', tmder what 
 circumstances it was made, from what motives, and will) what de- 
 sign. Tlie former account, given l)y him in conversation, may have 
 been only partially heard, or misunderstood, or partly forgotten, or 
 intentionally misrepresented; and where the variance between his 
 present statement upon oath, and the fornier statement, as reported 
 by a third person, may be as much owing lo the mistake of iheone 
 witness as to the misrepresentation of the other, it will be necessary, 
 that the memory and credit of both witnesses should be fairly tried 
 and contrasted; and, with this view, the person, with whom the 
 conversation is supposed to have passed, and the particulars of the 
 conversation, on which it is intended to contradict the witness, 
 shou'd be distinctly suggested to the witness, before any contradic- 
 tion is attempted. (1) If, for instance, a witness, on being exam- 
 ined in chief as to some transaction, supposed to have occurred be- 
 tween certain persons, should admit, that he had heard of such a 
 thing, but does not know its cause, it would be irregular to prove 
 his having made a declaration respecting the cause, in order to 
 prove his knowledge of the cause, without, first asking him, in the 
 cross-examination, whether he had not made such a declaration; 
 or, if he had answered, that he did not remember the transaction, 
 it would be equally irregular, without such previous cross-exami- 
 nation, to prove declarations made by him respecting tlie transac- 
 tion, for the purpose of showing, ih;U he must have remembered 
 it. (2) 
 
 Thus it appears, that a witness ought regularly to be cross- 
 
 (1) See the opinion of llie Judgns, opinion. TliJ opinion of the Judg- 
 
 in the course of the proceedings in ihe es, on the several points which arose 
 
 House of Lords, on the liill of p.iins during the.se proceedings are re- 
 
 and pen;Ulie.s; p. 575, of the printed ported also in 2 Bred. & Bing. p. 236, 
 
 evidence. Some of the preceding re- 315. 
 
 marks have been suggested by thit (2) lb. p. 576.
 
 Ch. 8. J Of the Examination of II itnesses. 295 
 
 exaiviined as to contradictory statements, supposed to liave been Contradictory 
 
 made by liiin on a lormer occasion, betore sucli contradictory ^ 
 
 statements can be adiuilied in evidence, to iinpeacli the credit of 
 his Ici^liniony. And this rule has been extended not only to 
 such contradictory statements, but also to other declarations of 
 the witness, and to acts done by him through the medium of de- 
 clarations or words. So that, if it is intended to ofiier evidence 
 of former declarations of the witness, or of acts done by him, 
 though not with a view to contradict his statement upon oath in 
 tlie examination in chief, but with the view of discrediting him 
 as a cor/upt witness, or as one who would corrupt other wit- 
 nesses; in this case also, it has been determined, that the wit- 
 ness should be previously questioned as to such declarations, or 
 such acts, on the crbss-examination. This appears fioni an an- 
 swer of the Judges to a question put to them by the House of 
 Lords, in the course of the proceedings before referred to. (1) 
 'J lie question was in the following words: " Whether, if a witness 
 in support of a prosecution has been examined in chief, and has not 
 been asked, in cross-examination, as to any declarations made by 
 him, or as to acts done by him, to procure persons corruptly to 
 give evidence in sup|)()rt of the prosecution, it would be com- 
 petent to the jiaity accused to examine witnesses in his defence, to 
 prove such fieclaraiions or acts, without first calling back such wit- 
 nesses, to be examined, or cross-examined, as to the fact, whether 
 he ever made such declarations, or did such acts?" Anoilier ques- 
 tion was the following: " If a witness, called on the part of a 
 plaintiff or prosecutor, gives evidence against the defendant, and 
 if, after the cross-examination of such witness by the defendant's 
 counsel, ihey discover, that the witness, so examined, has cor- 
 rupted, or endeavored to corrupt, another person to give false 
 testimony in such cause; whether the defendant's ccunsel may 
 not be ))ei'mitted to give evidence of such corrupt act of the wit- 
 ness, without calling him back?" The Judges were of opinion, 
 on both questions, that the projoosed proof could not be adduced 
 without a pievious cross-examination of the witness as to the 
 sulject-u'iaiter. " The general rule," said the Lord Chief Justice, 
 *' and the general practice, is this: if it be intended to bring the 
 credit of a witness into question, by proof of any thing that he 
 
 (1) Page C05 of the printed tninntes of evidence.
 
 296 Of the Examination of Witnesses. [Ch. 8. 
 
 Contradictory may iiave saicl or declared touching the cause, the witness is first 
 
 stulenients. i ■ .... i i • i ^ 
 
 asked, upon cross-exaujination, whether or no he lias said or de- 
 clared that which is intended to be proved." 
 
 Cross-exaniin- "pjjg rulcs of cross-exaininalioH as to contradictory written 
 
 Btion as to ivril J 
 
 ten statements Statements, supposed to have been made by the witness, were 
 
 of the witness. i j- j • .1 i- • i tt <• t 1 
 
 inucli discussed in the same proceedings, in the House of Lords. 
 
 On one occasion, in the course of those proceedings, (1) a letter 
 
 was shown to a witness on cross-examination, and, on being 
 
 questioned as to the hand-writing, she affirmed, thai she could 
 
 not say whether it had been written by her. The counsel then 
 
 proceeded to cross-examine the witness, as to her having written 
 
 certain particulars in a correspondence with her sister. This 
 
 mode of cross-examination was objected to; on which occasion, 
 
 the following question- was put by the House of Lords to the 
 
 Cross-examin- Judges for iheir opinion: (2) "Whether a party would be al- 
 
 ing as to con- 1 , • . . . . , 
 
 tents of a let- lowed, in cross-examining a witness, to represent, in the state- 
 ^®'"" ment of a question, the contents of a letter; and then to ask the 
 
 witness, wheiher he wrote such a letter to any person with such 
 contents, or contents to the like effect, without having first shown 
 the letter to the witness and asked him whether he wrote it, and 
 without his admitting that he wrote the letter.'^" The Judges 
 were of opinion, that the question must be answered in the ne- 
 gative; and the reason of their opinion was, " That the contents 
 of every written paper are, according to the ordinary and well- 
 established rules of evidence, to be proved by the paper itself, 
 and by that alone, if the paper be in existence, {v) The proper 
 course, therefore, is, to ask the witness, whether that letter is of 
 his hand-writing; if the witness admits it to be his hand-writing, 
 the cross-examining counsel may, at his proper season, read 
 that letter as evidence: and when the letter is produced, then the 
 whole of the letter is made evidence. One of the reasons 
 (continued the Lord Chief Justice) for the rule requiring the pro- 
 duction of written instruments, is, in order that the Court may 
 be possessed of the whole. If the course, here proposed, should 
 be followed, the cross-examining counsel may put the Court in 
 possession only of a part of the contents of the written paper; 
 
 (1) Tn the case of the witness Louisa (2) Printed evidence, page 334. 
 Demont, page S2S, 334, of the printed 2 Brod. & Bing. 286, S. P. Seo 
 evidence. 3 Barn. & Cress. S. P- 749, 1. 15. 
 
 (d) See Note 532, p. 771-
 
 Ch. 8.] OJ the Examination of Witnesses. 297 
 
 and thus the Court may never be in possession of the whole, Contrndieiorj 
 
 , ' Statements, 
 though It may happen, lliat the wliole, u produced, may have an 
 
 effect very diiTerent from thai which might be produced by the 
 statement of a part." 'J'he writing, therefore, if in existence and 
 producible^ ought to be produced and shown to the witness. 
 Wlien it is produced, the cross-examining counsel may, if lie 
 thinks proper, show the witness only a part, or only one or more 
 lines of the letter, and not the whole of it; and may ask the wit- 
 ness, whether he wrote such part, or such one or more lines. (1) 
 If tlie witness does not admit, that he wrote the part shown to 
 him, he cannot be cross-examined as to the contents of the letter, 
 for the reason already given; namely, that the paper itself ought 
 to be produced, in order that the whole may be seen, and the 
 one part explained by the other. (2) Jf, on the other hand, the 
 witness should admit, that he wrote the letter, siiil ilie rule with 
 respect to cross-examining, as to the contents, is precisely the 
 same: the counsel cannot enquire of the witness whether or not 
 such statements are in the letter; the letter itself must be read, 
 lo show whether it contain such statements. (3) With respect to 
 the proper lime for reading the letter, the ordinary rule is, that 
 it shall be read as the evidence of the cross-examining counsel, 
 as part of his evidence in his turn, after he shall have opened 
 his case; this is the ordinary course; but if he suggests to the 
 Court, that he wishes to have the letter read immediately, in 
 order to found certain questions upon the contents, which can- 
 not well or effectually be done, without reading the letter itself ; 
 in that case, for the more convenient administration of justice, the 
 letter is permitted to be read at the suggestion of the counsel; 
 still, however, it must be considered as part of the evidence of the 
 cross-examining counsel, and subject to all the consequences of his 
 having it so considered. (4) 
 
 The rule, above laid down, for cross-examining a witness as 
 10 the contents of a letter or other written paper, is applicable, 
 at the furthest, only lo a case in which the writing is supposed to 
 
 (i) The opinion of the Judges on (3) Opinion of the Judges, in answer 
 
 the second question in the case of the lo another question, hi the case of the 
 
 same witness, page 335 of the printed same witness, p. 337 of the printed evi- 
 
 evidence. 2 Liiod. Ha Bing. 286. dence. 2 brod. &j. biug. 7S8. 
 
 (2J Answer of the Judges to the (4) Opinion of the J°udges, in answer ' 
 
 second part of tlie second question, to the Zd pari of tlie rast-mentioned 
 
 page 336 of the printed evidence. question. 2 lirod. &, Bing. 289. 
 
 Vol. 1. 38
 
 298 Of the Examination of Witnesses. [Ch. 8. 
 
 Contrad)rforjr \jq Jp existence. Tliis appears to be clear, from considering the 
 
 statemenls. . . . , ° 
 
 oi)mion of tlie Judges, and the circumstances out of wliich the 
 
 question arose. The letter, written by tlie witness, was, in 
 
 that case, actually in the possession of ilie cross-examining 
 
 counsel, produced by liim, and shown to the witness ; the 
 
 question, referred to the Judges, proceeds upon the supposition 
 
 of the letter being producible ; and the entire reasoning, on 
 
 wiiich their opinion is founded, expressly refers to the case 
 
 of an existing paper. They held, in the case proposed, that 
 
 the counsel could not cross-examine as to the contents of a 
 
 letter, which was produced and shown to the witness ; because 
 
 " the contents of every written paper are to be proved by the 
 
 paper itself, and by that alone, if the paper be in existence." 
 
 But if the paper be not in existence, this reasoning will not 
 
 Cross-exnmin- apply. If, therefore, a letter, written by the witness, is proved 
 ing aa to lo»t i r j i 7 5 . 1 V 
 
 letter. to have been lost or destroyed, (in v/hich case, the only mode 
 
 of contradicting him would be by producing afterwards some 
 secondary evidence of the contents of the letter,) then it would 
 be reasonable and proper to allow the counsel to cross-examine 
 the witness as to the contents of such letter. This, indeed, 
 appears to be the only regular mode of proceeding; for, as the 
 credit of the witness may be afterwards impeached by proof of 
 the contents of the lost letter, no less than by the production 
 of an original letter, justice requires, that the witness should 
 first have an opportunity, in his own defence, of entering into 
 a full statement of what he has written ; and this statement is 
 not inferior, in its kind, as evidence, to any other secondary proof 
 of the contents, that may be afterwards produced to contradict 
 him. This latter circumstance distinguishes the case from that 
 before mentioned, in which the witness's letter was in the pos- 
 session of the cross-examining counsel, and that letter, if pro- 
 duced, would have been the best, and, as the Judges held, the 
 only legitimate proof of its contents. It may, perhaps, be sug- 
 gested, that, since the proof of the loss or destruction of the 
 writing is strictly necessary, before the counsel, in such case can 
 cross-examine as to its contents, the introduction of such ante- 
 cedent proof might occasion great inconvenience, by disturbing 
 the regular progress of the cause, and distracting the attention. 
 But when this inconvenience is likely to be felt in any great 
 degree, it will be always in the power of the Judge, if he shall
 
 Ch. 8.] Of the Examination of Witiifsscs. 299 
 
 think proper, either to admit, in the first instance, the wiin-'ss's Contradictory 
 
 ' ' - , . . c statements. 
 Statement of the contents of the writing, or to reserve the power ol 
 
 cross-examining as to its contents, until the time has arrived, wiien 
 
 the counsel on the opposite side shall enter upon his case. 
 
 A question, connected with this subject, here nalurally occurs; Crosi-examin- 
 ^ ' . . ing as to nav- 
 
 wbeiher counsel may be allowed to cross-examine a witness, as to inj; written « 
 
 his having written a letter containing a different statement. This ^'g^[®°* ""^** 
 question, it is conceived, in the general form here stated, has not 
 been determitied by the resolution of the judges in the case before 
 mentioned: for, in that case, the question, put to a witness, related 
 to a variety of particular expressions and entire passages, supposed 
 to be contained in a letter, and the letter, which was supposed to 
 contain such expressions, had been actually produced, and shown 
 by the counsel: whereas, on the contrary, the question, here pro- 
 posed, is quite general, namely, whether the witness has given 
 any account in his letters, or otherwise, differing from his present 
 statement; and the question is proposed, without any reference to 
 the circui^jslance, whether the letter is or is not in existence, or 
 whether it has or has not ever been seen by the cross-examin- 
 ing counsel. Nor does the question, here proposed, appear to have 
 been determined by the resolution of the Judges, on a question, 
 which occurred in a later stage of the proceedings; since, in this 
 latter case also, the question related to particular expressions, sup- 
 posed to have been contained in the letter, and the opinion of the 
 Judges seems to have been partly founded on the supposition, that 
 the witness's letter was actually in the possession of the cross-ex- 
 amining counsel, as afterwards distinctly appeared to be the fact.* 
 Since the subject, therefore, seems still open for discussion, and 
 may be considered of some importance, as affecting very material- 
 ly the powers of cross-examination, upon which the right admin- 
 
 * The question, here alluded to, arose in the following manner. (a) The cross- 
 examining counsel asked a witness, named Giuseppe Sacchi, " Whether he had 
 ever represented to any person, after he had left the service of the Princess, that 
 he taxed himself with ingrati!ude towards a generous mistress?" On this, the 
 Attorney General submitted, that the question should be put, whether he had so 
 represented himself in conversation ; for, that if the representation was in writing. 
 the writing itself should be produced, before the question could be put. .\fter an 
 
 («) Printed evidence, p. 445.
 
 300 
 
 Of ike ExumiiKiiicm of Ifitncsscs. 
 
 [Ch. 8. 
 
 Contradictorj istration of jiisiire so niiicii depends, il will not, perhaps, be iliought 
 
 loreign lo the subject, to consider, whether any legal objeciion car» 
 
 be made to the proposed question. The queration is this; Can a 
 witness be properly a^ked, in the cross-examination, whether he 
 has written any letter giving a different account? 
 
 Objection. "i hc cbjeclor lo such a qucbiion might possibly urge, that if the 
 
 account is in writing, the writing ought to be produced, as the 
 best evidence, and that the witness's statement of the contents of 
 the letter is only secondary evidence, which cannot be received: 
 
 argutiient upon the point, the followinw question was put to the Judges: " Whether, 
 according to tlie established practice in the courts below, counsel in cross-examin- 
 ing are entitled, if the counsel on the other siile object to it, to ask a witness, 
 whether he has made representations of a particular nature, not specifying in his 
 que^^lion, whether the question refers to representations in writing or in words.'" 
 
 The Lord Lhief Justice, in delivering the opinion of the Judges, (a) observed, 
 that they felt some ditficulty in giving a distinct answer to that proposition, n» 
 they did not remember an instance of a question liaving been asked by the cross- 
 examining counsel precisely in those words, and they were not aware of any 
 established practice distinctly referring to such a question The Lord Chief 
 Justice then adverted to the rule of law respecting the examination of a wit- 
 ness, as to a contract or agreement, in which case, if the counsel on the one 
 side were to put a question generally as to the contract, the ordinary course is 
 for the counsel on the other side to interpose an intermediate question, wheth- 
 er the contract referred to was in writing, and if the contract should appear 
 to have been in writing, then all further enquiry would be stopped, because the 
 writing itself must be produced. With reference to this established rule, they 
 considered the question proposed to them, and were of opinion, that the wit- 
 ness could not properly be asked, on cross-examination, whether he had written 
 such a ihin^, the proper course being to put the writing into his hands, and ask him 
 whether it be his writing; they held also, that if the witness were asked, wheth- 
 er he had represented such a thing, they should direct the counsel to ask, whether 
 the representation had been made in writing, or by words; and if, in consequence, 
 he should ask, whether it had been made in ivriting, the counsel on the other side 
 would object to the question; but if lie should ask, whether the witness had 
 said such a thing, the counsel would undoubtedly have a right to put that 
 question. 
 
 The counsel were then called in, (6) and were informed that if, on cross-ex- 
 amination, they enquired of a witness, whether he had made representations of anj 
 particular nature, stating the nature of those representations, they should, in their 
 enquiry, ask the witness first, " Whether he made the representations by parol, or 
 in writing V 
 
 The Attorney-General of the Q,ueen enquired, whether he might be at liberty to 
 niter his question, and put it thus: " Did you ever make any representation in wri- 
 ting concerning your real or supposed ingratitude towards so generous a mistress 
 as iler lioyal Highness.'" The counsel were then directed to withdraw, and, on 
 their being recalled, the counsel for the Queen wore asked, whethi;r they wished 
 to withdraw the question; upon which the Attorney-General of the Queen stated, 
 that he begged to withdraw the question, to save the necessity for further discus- 
 sion. The examination then proceeded, and letters were put into the witness'* 
 hands, which he admitted to hf hi"? hand-writing. 
 
 (ff) Pag« 446, 2 Brod. &. Bing. 293 (b) Page 447.
 
 Cli. 8.] Of tf I e Examination of Witnesses. 301 
 
 that, upon this principle, a witness cannot be examined as to the Contradictory 
 
 ^ , , . ... statements. 
 contents oi a deed, or written contract, or other written instrument 
 
 unless the original is lost, or destroyed, or in the possession of the 
 adverse party. Or, lastly, it might be argued, that the witness may 
 not be able to remember some particulars of his letter, especially 
 of a letter written sometime before, and may, perhaps, suppose the 
 statement, contained in it, to vary in some respects from the account 
 which he has given in his examination in chief, and to be differ- 
 ent, also, from what the latter realy was; in which case, the wit- 
 ness may make an inaccurate representation of its contents, to his 
 own disadvantage, and his character may consequently suffer, 
 without any just ground of imputation; whereas, if the letter itself 
 were produced, this difference of statement might be corrected and 
 satisfactorily explained. 
 
 The argument on the other side, in support of the question, may Answer, 
 be supposed to be of the following kind. First, with respect to the 
 principle, urged in support of the objection, (namely, that the letter 
 itself is the best evidence, therefore that the parol evidence of the 
 witness is not admissible,) although this principle holds almost 
 universally with reference to the proof of the issue., and every mate- 
 rial part of the issue, it will be found not to apply to a cross exami- 
 nation, which is solely intended to try thewitness'^s credit and veracity. \, Meaning of 
 A witness, it is admitted, cannot be questioned as to the contents t'le {"'s. »s to 
 
 , -^ _ production oi 
 
 of a written agreement, or other written instrument, wherever the the best ctj. 
 agreement, or writing, is either part of the issue, or material to the 
 issue; because the writing itself is the best proof of its contents; 
 and this being within the knowledge of the parties, (as it must be 
 supposed to be, from its being material to the issue,) the parly, who 
 wishes to avail himself of the writing, ought to be provided with 
 the regular proof of its contents; and the circumstance of his not 
 satisfactorily accounting for the non-production of the original in- 
 strument, is of itself matter of suspicion. Chief Baron Gilbert, in 
 treating of the general rule, evidently considers it. as a rule appli- 
 cable only to the proof of theissue, or of some fact material to the issue. 
 "The true meaning of the rule of law, (he says,) (1) which requires 
 the greatest evidence, that the nature of tiie thing is capable of, is 
 this; that no such evidence shall be brought^ rohich ex nalura rei,
 
 502 Of the Examination of Witnesses. [Ch. 8. 
 
 supposes still greater evidence behind the partifs own possession and 
 power; for such evidence is allogelher insufficient, and proves nothing; 
 for it carries a presumption with it, contrary to the intent, for 
 which it was produced; for, if the other greater evidence did not 
 make against the Jiarty, why did he not produce it to the court? 
 As, if a man offers a copy of a deed or will, where he ougfit to pro- 
 » duce the original, this carries a presumption with it, that there is 
 something more in the deed or will, that makes against ti)e party, 
 or else he would have produced it; and therefore the proof of a 
 copy, in this case, is not evidence, and cannot possibly weigh any 
 thing in a court of justice." This reasoning cannot justly be ap- 
 plied to the subject now under discussion; which is merely this, 
 whether the cross-examining counsel may ask a witness, whether 
 he has written any letter, giving an account different from that 
 which he has given in his examination in chief. For the question 
 here proposed, or the witness's answer, (whether his answer be in 
 the affirmative or in the negative,) cannot justly raise any presump- 
 tion, that the original letter is, at the time of the trial, or ever has 
 been, in the possession or power of the parly, against whom the wit- 
 ness appears; and the non-production of the witness's letter cannot 
 justly be imputed to the party as matter of suspicion, when it does 
 not appear, whether any such letter was ever written, or to whom 
 written, or at what time, or under what circumstances. If the 
 witness denies, that he ever wrote a different statement, then the 
 cross-examining counsel cannot impeach his evidence by calling 
 another witness to speak to the contents of the letter, because, in 
 this case, the witness and the parly are at issue as to liie contents, 
 and the original letter must be produced, or its loss satisfactorily 
 proved, otherwise, it must be presumed, in justice to the witness, 
 that the letter, if produced, would not contradict his testimony. 
 But if, on the other liand, the witness confesses, that he has writ- 
 ten a contradictory statement, and cannot satisfactorily explain the 
 contradiction, surely such an admission (being, in some degree, 
 against his own. character, and, therefore, against his own inter- 
 est,) will be quite as satisfactory and convincing, upon this point, 
 as the letter itself could be; and it cannot reasonably be presumed, 
 that the letter, if produced, would corroborate the statctnent, which 
 
 (1) Gilb. Er. 13.
 
 Ch. 8.] Of the Examination of Witnesses, 503 
 
 the witness made in his examination in chief, when he himself Contradictorj 
 
 , • • L I • c • rpi 1 Statements. 
 
 negatives such a supposiiion by his own contession. 1 he general 
 
 rule, therefore, that the best evidence is to be produced, which the 
 nature of the thing admits, is to be understood as applying to 
 deeds and agreements, which form part of the issue, or which are 
 material to theissuc — to written notices to quit, in an action of eject- 
 ment, on the expiration of a yearly tenancy — to letters written by 
 either party to the suit., — and to other instances of a similar kind: 
 in which cases, the non-production of the writing may afford well- 
 grounded suspicion against the party, who would inquire into its 
 contents; but it is submitted, for the reasons before mentioned, 
 that the rule cannot apply to the question now under considera- 
 tion; and it certainly has not been so applied either by Chief Bar- 
 on Gilbert or Mr. Justice Buller, who have fully entered into the 
 reason and principle of the general rule. 
 
 Again, if the rule is, as argued on the other side, that a witness 
 cannot be questioned, as to some different statement supposed to 
 have been written by him, how is it that a witness may be ques- 
 tioned, on tlie voire dire, as to his taking, under some written 
 agreement, an interest in the event of the suit; for, as in the 
 former case, the letter would be the best proof of its contents, so, 
 in this case, the written agreement would be the best proof of any 
 interest which the witness may take under it; yet, it is certam, 
 that such an examination, as to the contents of written instru- 
 ments, is strictly regular, with a view to discover the interest o( the 
 witness; and the reason for this seems to be, because the opposite 
 party may possibly be ignorant of the existence of any such in- 
 strument, and may not know, that a particular witness would be 
 called on the other side. (1) For the same reason, precisely, 
 the proposed question, as to the credit of the witness, seems to 
 be regular; because the witness may be a stranger, or, if known, 
 may be unexpected; and the party against whom he appears, 
 may be ignorant of the letter, or without the means of procuring 
 
 (1) If the witness produces the in- N. P. C. 434. So, if the witness were 
 
 •trument, under which he is supposed to produce the letter, on which he is 
 
 to talte the interest, the instrument cross-examined, the letter itself should 
 
 itself ought to be read, as supplying be read, as best proving whether iXt 
 
 the beat proof of the witness's situ- contents ara contradictory, or coDfirma- 
 
 atioo. Butler v. Carrer, 2 Starkie, torjr of hit evidence-
 
 504 
 
 Of the Examination of Witnesses. [Ch. 8. 
 
 Contradictory it, or may have no reason to suppose, that anv such letter could be 
 
 statements^ ^^g^jgj_ 
 
 If the argument on the other side can be maintained, it would 
 not be allowable, in cross-examination, to ask an accomplice, or 
 other witness, who appears against a person on a criminal prosecu- 
 tion, whether he has not been himself tried for some offence; for 
 it miglit be objected, with as much reason, that the fact of his hav- 
 ing been tried for such an offence is partly matter of record, and 
 therefore not to be proved without the record, which is the highest 
 species of proof; yet such questions are continually asked, and it 
 has not been the practice to disallow them, merely on the ground, 
 that the witness's answer is not the best evidence of the fact, that 
 can be produced. For these reasons, it may be said, the general 
 rule, respecting the production of the best evidence, appears not to 
 be applicable to the question here considered. 
 
 2. Supposed 
 hardship. 
 
 Lastly, with respect to the supposed hardship and unfairness of 
 subjecting a witness to such cross-examination, when be may have 
 forgotten the particulars of hislelter, and erroneously may suppose, 
 that it represented the transaction in a manner different from what 
 he has represen ted it in his evidence, it may be observed, that such 
 a case, if not impossible, is at least not probable; for it is difficult 
 to conceive, that a witness of the weakest understanding could be 
 persuaded to believe, that he has made different statements, when, 
 in fact, his statements have always been the same. But, if such 
 an improbable case should occur, it would not occasion any embar- 
 rassment to a witness of character, who has no design to disguise 
 or misrepresent. Whatever observations can fairly be made, on 
 behalf of a witness in such a situation, will be suggested by the 
 Court; and the jury will have the means of judging, whether the 
 difference of statement arise from mere mistake, or from an inten- 
 tion to deceive. 
 
 Re-examina- 
 tion as to 
 former state 
 ments. 
 
 As the object of cross-examining a witness, respecting a former 
 statement, supposed to have been made by him, is to impeach 
 the truth and credit of his testimony; so, on the other hand, 
 the object of the re-examination is, to give him an opportunity 
 of showing the consistency of his statements, and of vindicating
 
 Ch. <].] Of the Examiuation of Witnesses. 505 
 
 his character. Upon this subject, it is material to consider, how Contradictorj 
 
 ' . " c \ statements. 
 
 far the witness may be re-examined as to other parts of the same 
 
 statement. If that whicli the witness has stated, in answer to the 
 question on his cross-examination, arose out of the enquiries of the 
 person, wi;h uhoin he had the conversation, the witness may be 
 asked in the re-examination what those inquiries were. (1) He 
 may also be asked, what induced him to give to that person the 
 account, which he has stated in the cross-examination. (I) The 
 general lule is, that counsel have a right, upon re-examination, to 
 ask all questions which may be proper to draw forth an explana- 
 tion of the sense and meaning of the expressions used by the wit- 
 ness on cross-examination, if they be themselves doubtful; and al- 
 so an explanation of the motive, by which the witness was induced 
 to use those expressions; he ha^ no right to go further, and to in- 
 troduce matter new in itself, and not suited to the purpose of ex- 
 plaining either tlie expressions or the motive of the witness. (1) 
 And as many things may pass in one and the same conversation, 
 relating to the subject of the conversation, which yet do not relate 
 to his motive, or to the meaning of his expressions, the counsel are 
 not entitled to re-examine to such parts of the conversation. 
 
 A distinction is to be made between a conversation, which a 
 witness may have had with a farly to the suit^ and a conver- 
 sation with a third person. ^ The conversations of a party to 
 the suit, relative to the subject-matter of the suit, are in them- 
 selves evidence against him in tlie suit, and if a counsel chooses 
 to ask a witness as to any thing that may iiave been said by 
 an adverse party, the counsel for that party has a right to lay 
 before the court the whole that Vv^as said by his client in the 
 same conversation ; not only so much as may explain or qualify 
 the matter introduced by the previous examination, but even 
 the matter not properly connected with ihp part introduced 
 upon the previous examination, provided only that it relate to 
 the subject-matter of the suit ; because it would not be just 
 to take part of a conversation, as evidence against a party, 
 without giving to the jiarly at the same time the benefit of 
 
 (1) See the account of the procee- idence, in the case of the witness 
 dings in the House of Lords, above Giuseppe Sacchi. 2 Brod. & Ring, 
 referred to, p. 453, 454, of printed ev 294, S P. 
 
 Vol. I. 39
 
 S06 
 
 Of the Examination of f Fitnesses. [(.'h. 8. 
 
 Coptrrifiictory the entire residue of what he said on the same occasion. But the 
 statements. . - . • i i • • . ■ • ir • 
 conversation oi a witness with a third person is not in itseJi evi- 
 dence in the suit against any party to the suii; it becomes evi- 
 dence only as it may affect the character and credit of the witness, 
 which may be aff'ected by his antecedent declarations, and by the 
 motive under which he made them; but when once all that had 
 constituted the motive and inducement, and all that may show 
 the meaning of the words and declarations, has been laid before 
 the court, the court becomes possessed of all that can affect the 
 character or credit of the witness, and all beyond ibis is irrelevant 
 and incompetent,* 
 
 Evidence in In answer to the evidence of coiitradicioiy statements, and for 
 
 character. ^^^^ purpose of corroborating the testimony of the witness, 
 
 whose veracity has been thus impeached, it seems reasonable 
 
 * The question proposed to the Judges is not here inserted, because it is at once 
 so abstract and particular, as not to be of much general importance. The rea- 
 sons, above stated, are selected from the judgment of the Lord Chief Justice. 
 Some difference of opinion occurred on this subject among the Judges. Mr. Jus- 
 tice Best differed in opinion from the other Judges; the Lord Chancellor also, and 
 Lord Redesdale were of a different opinion. Blr. Justice Best held, that each of 
 the proposed questions should be answered in the afhrmative. His reasoning ap- 
 pears to have been to the following effect. The rule, which is acknowledged to 
 have been settled with regard to the statements or conversations of a ps?-?!/ /o /Ae 
 suit, applies with equal reason and force to ihe statem^ts and conversations of a 
 witness- As, in the former case, if some part of the conversation, in which the par- 
 ty has been engaged, is brought forward, by the cross-examination, against that par- 
 ty, the whole of the conversation may be properly enquired into, on the re-examina- 
 tion; so, in the latter case also, if one part of the conversation of a witness has 
 been drawn from him by cross-examination, \i'ith the view of disparaging his tejti- 
 mony, the whole of what passed in that conversation ought to be admitted on the re- 
 examination. This is justly due to the clniiacier of the witness, who, having been 
 attacked on the one side, is entitled, iu vindication of his character, to have the en- 
 tire conversation fairly and fully detailed in evidence: it is due to him also as a pro- 
 tection and security against proceedings, which might otherwise be instituted 
 against him, on statements partially extracted l»y cross-examination. The witness 
 cannot have a complete opportunity of explaining his motives, unless every part of 
 the conversation may be enquired into; lie may, in his cross-examination, have as- 
 signed some reason or motive for what he said in one part of the conversation, be- 
 lieving that reason or motive to be the only one, which operated upon his mind; 
 yet, perhaps, if some other part of the conversntion should be suggested to him in 
 his re-examination, he may instantly discover, that some other tnolive also influen- 
 ced him, or that what he said had been by F0ti;e oiher incident, not b<>fore adverted 
 to in the former examination. But although the entire cotsversation ought to be 
 admitted, it is never to be adniilted as evidence of any fact that may have beeri as- 
 serted in the course of the conversation, but solely and simply as explanatory of the 
 witness's motives, and as setting his chiiracter and credit in a fair, full, and impar- 
 tial point of view.
 
 Ch. 8.] Of the Excuninaiion of Witnesses. 307 
 
 to be allowed to show, that he is a man of the strictest integrity, Character, 
 and of scnipiiloiis regard to truth. 
 
 Ch. B. Gilbert was of opinion, that the party, who called the Former state- 
 witness, might show, that he affirmed the same thing before on 
 other occasions, and that he is still consistent with himself. (1) 
 This, however, has been doubted, and with good reason. Mr. 
 Justice Buller lays it down, that such evidence is clearly not ad- 
 missible in chief, and it seems doubtful, he adds, whether it is so in 
 reply. (2) And Lord Ch. Justice Eyre is represented as having 
 rejected such evidence, even when offered on behalf of a defend- 
 ant, in a prosecution for perjury.* 
 
 It may be observed, on this kind of evidence in general, thai Remark, 
 a representation without oath can scarcely be considered as any 
 confirmation of a statement upon oath. It is the oath that con- 
 firms; and the bare assertion, that requires confirmation. The 
 probability is, that in almost every case the witness who swears 
 to certain facts at the trial, has been heard to assert the same 
 facts before the trial; and it is not so much in support of his 
 
 (1) Gilb. Ev. 135. See LiUterel where this confirmatory evidence was 
 
 V. Reynell, 1 Mod. 282, and Sir J. oflered in chief; which would not 
 
 Freind's case, 4 St. IV. 613. 13 now be allowed. 
 
 Howell's St. Tr. 32, S. C, and Har- (2) Bull. N. P. 294. 
 rison's case, 12 Howell's St Tr. 861, 
 
 ♦ So said by Lord Redesdale, in the Berkeley peerage case, 5th June, 1811. 
 The occasion of the discussion, which took place, was as follows: One of the peers 
 enquired of a witness, who had been cross-examined and re-examined, as to state- 
 ments made by Lady Berkeley, on a former occasion, respecting her supposed mar- 
 riage. The Solicitor-general suggested to the Committee, whether this was the 
 regular course of proceeding, and stated what he conceived to be the general rule 
 upon the subject. The admissibility of the former statements was then mtich dis- 
 cussed. After tlie arguments of counsel on both sides, Lord Redesdale said, he 
 had alwaj'S understood, that, for the purpose of impugning the testimony of a wit- 
 ness, his declarations at another lime might be enquired into, but not for the pur- 
 pose of confirming his evidence. And the Lord Chancellor expressed his decided 
 opinion, that this was the true rule to be observed by the counsel in the cause; but 
 considering the House as in some degree standing both in the situation of the coun- 
 sel for the claimant, and of the counsel against the claimant, he was of opinion, that 
 the question might be properly asked by the House, though it could not be a^ked 
 by the counsel on one side; but with respect to the answer to the question, it might 
 be the subject of future consideration, whether it ought to stand upon the iiiinules 
 as evidence. The question respecting the former representations of Lady Berke- 
 ley was therefore repeated by one of the Lords, and the answer entered among the 
 minutes, subject to future revision. !\!S.
 
 508 Of the Examination of Witnesses. [Ch. 8. 
 
 character, that he iias given the same account, as it would be to 
 his discredit, that he should ever have made one different. The 
 imputation on his veracity results from the fact of his having con- 
 tradicted himself, and this is not in the least controverted or explain- 
 ed by the evidence in question. If a witness has made a statement 
 a hundred times in one way, and a hundred times in another way 
 directly contrary, ihe only inference must be, tliat he is utterly des- 
 titute of all title to credit. In one point of view, a former state- 
 ment by the witness appears to be admissible, in confirmation of 
 his evidence; and that is, where the counsel on the other side im- 
 pute a design to misrepresent, from some motive of interest or re- 
 lationship; there, indeed, in order to repel such an imputation, it 
 might be proper to show, that the witness made a similar state- 
 ment at a time when the supposed motive did not exist, or when 
 motives of interest would have prompted him to make a different 
 statement of the facts. 
 
 Character of If an attesting witness to a will or deed impeach its validity on 
 the ground of fraud, and accuse other subscribing witnesses, who 
 are dead, of being accomplices in the fraud, the party, claiming un- 
 der the instrument, may give evidence of their general good char- 
 acter. For, if living, they might be produced as wilnessey, and 
 iheir character might then be the subject of examination; and, af- 
 ter their death, an opportunity ought to be given, to show what 
 credit is to be attached to their attestation. (I) The only mode left, 
 in such a case, of doing justice to the person impeached, is by en- 
 quiring into his general character. 
 
 In the common case, where a witness for the plaintiff asserts one 
 thing, and a witness for the defendant asserts another, and direct 
 fraud is not imputed to either, evidence to general character is not 
 admissible. (2) {w) 
 
 attesting wit- 
 ness deceased. 
 
 A party cannot A party will not be permitted to produce ^eneraZ evidence, to 
 discredit his 
 own witnessi. 
 
 discredit his ^jg^j.^j;j j^jg q.^^ witness. (3) "This," says Mr. J. Buller, 
 
 (1) Doe dem. Walker v. Stephen- (2) Bp. of Durham v. Beaumont, 
 
 son, 3 Esp. N. P. C 284. 4 Esp. N. 1 Campb. 207. 
 
 P. C. 50; cited and approved in I (3) Bull. N. P. 297. 
 Campb. 210. 
 
 (tf) See Note 533, p. 771.
 
 CIi. 8.1 Of the Examination of Witnesses. 309 
 
 " would enable him to destroy the witness, if he spoke against him, 
 
 and to make^ him a good witness if he spoke for him, with the 
 
 means in' his hand of destroying his credit, if he spoke against 
 
 him."(l) The meaning of this rule is, that a party cannot prove l. By proof of 
 
 his own witness to be of such a general bad character, as would character. 
 
 render him unworthy of credit. 
 
 But if a witness state facts against the interest of the party that Facts may bo 
 11 J I • I • 1 11 , 1 I proved other- 
 
 called him, anotlier witness may be called by the same party to wise. 
 
 disprove those facts: " for such facts are evidence in the cause, 
 and the other witness is not called directly to discredit the first, but 
 the impeachment of his credit is incidental only, and consequen- 
 tial. "(2) The object of such evidence is to correct some suppos- 
 ed mis-statement, or to rectify an error; and if such evidence were 
 to be excluded, the consequences would be most injurious to the 
 administration of justice, as well in criminal as in civil cases. 
 On the trial of an action, therefore, where the question was, 
 whether the defendant's servant, who had been employed to sell a 
 horse, had warranted Jiim sound, and the servant swore, on being 
 called by the plaintiff, that he had not given any warranty, Lord 
 Ellenborough allowed the plaintiff to call another witness to prove, 
 that at the time of the sale, the servant had expressly warranted 
 its soundness. There can be no rule of law, said Lord Ellenbo- 
 rough, by which the truth on such an occasion is to be shut out, 
 and justice perverted. (3) 
 
 It would not, however, be competent to a parly, in general to ^- ^^ P''°°'' °^ 
 
 1 . V 1. I • •! • , . ' contradictory 
 
 prove, that a witness who has given evidence against the inter- statement. 
 
 ests of that party, has been heard at other times to make a dif- 
 ferent representation. The earlier statement, it is clear, cannot 
 upon any principle, be substituted as legitimate proof of the 
 fact therein affirmed, in the place of the statement delivered 
 upon oath in the cause. Nor does it appear to be admissible 
 merely for the purpose of neutralizing or destroying the effect of 
 
 (1) Bull. N. P. 297. N. p. C. 334. Ewer v. Ambrose 3 
 
 (2) Bull. N. P. 297. 3 Barn. & Barn. & Cress. 749. See also Lowe, 
 Cress. 750, 751. v. Joliffe, and Pike v. Badmering, gta- 
 
 (3) Alexander v. Gibson, 2 Campb. ted infra. Part II. ch. 8, sect. 2. 
 656. Richardson v Alan, 2 Starkie,
 
 310 Of the Examination of Witnesses. [Ch. 8. 
 
 the latter unfavorable statement; for, generally speaking, any ear- 
 lier statement, which may have been made, out of the cause, is 
 entitled (o much less weight than a subsequent statement, upon 
 oath, in the cause, and in the presence of an opposite party, armed 
 with the power of cross-examination. And one objection to such 
 evidence is, that it would generally lead into a long collateral en- 
 quiry, which, after all, would seldom end in any certain or satis- 
 factory result. A party, complaining of a supposed mis-statement 
 of his witness, will always be at liberty to correct such mis-state- 
 ment; but this is most directly and effectually done, and in a man- 
 ner most convenient for the administration of justice, by producing 
 other evidence as to the facts or circumstances supposed to be mis- 
 represented.* 
 
 Answer. ]n the case of Ewer v. Ambrose, before referred to, (I) a witness 
 
 having been called on the part of the defendant, to prove a part- 
 nership between himself and the defendant, ^xid having denied 
 that fact, an answer of the witness in chancery was offered in evi- 
 dence by the defendant's counsel, and admitt^. But the Court of 
 King's Bench were of opinion, that this answer was clearly not 
 admissible for the purpose of showing generally that the witness 
 was unworthy of credit; and they considered it very unquestiona- 
 ble, whether it could be properly received, to prove a different state 
 of facts from that w4iich the witness had sworn to at the trial, {z) 
 
 Deposition. l[j Oldroyd's case, (2) one of the witnesses, whose name was 
 
 on the back of the indictment, not having been called on the 
 part of the prosecution, on account of a strong suspicion of 
 being an accomplice with the prisoner, — the Judge directed that 
 
 (1) Barn. & Cress. 746. 
 
 (2) lluss. & Ry. Cr. C. 89. 
 
 • On the impeachment of Warren Hastings, a witness, called by the managers, 
 appearing to them to give his evidence less distinctly than when examined before 
 the House of Commons, was interrogated as to tho tenor of his evidence on the 
 former occasion. The defendant's counsel objected to this course of examination; 
 and the Lords, after argument, and much deliberation, determined that the ques- 
 tion was irregular. The witness's name was Bean; the question occurred on the 
 29th Feb- 1788. See Mill's History of British India, vol. iii. p 64. 
 
 (2) See Note 536, p. 781.
 
 Ch. 9.j OJ Bills of Except ions, ^c. 31 i 
 
 ibis witness should be examined; and as the evidence of the wit- 
 ness materially differed from a deposition taken before the coroner, 
 the Judge ordered that this deposition should be read in evidence, 
 for the pur|)Ose of impeaching the credit of the witness at the trial. 
 And all the Judges, on considering the case, were of opinion, that 
 it was competent for the Judge, under the circumstances, to order 
 the deposition lo be read for such purpose. And Lord Ellenbo- 
 rough C. J. and Mansfield C. J. thought, that the prosecutor had 
 the same right to call for a deposition, in order to impeach the 
 credit of a witness, who on the trial contradicted what he had be- 
 fore deposed, (o) 
 
 CHAP. IX. 
 
 Of Bills of Exceptions^ and Demurrers to Evidence. 
 
 The competency of witnesses and the admissibility of evidence Billofexcep- 
 are to be decided by the Judge who tries the cause, and from his 
 judgment there is an appeal by a bill of exceptions. An appeal 
 also may be made, in the same manner, from the direction or opin- 
 ion of the Judge, as to the sufficiency of the evidence to maintain 
 the plaintiff' 's claim. (1) 
 
 At common law, a writ of error could not be brought for any 
 error in law, which did not appear on tlie record; and therefore, 
 where the jjlain'.ifF or defendant alleged any thing ore tenus, which 
 was oveirided by the Judge, the party aggrieved had no re- 
 dress. (2) To remedy this defect, it was enacted by stat. 13 Ed. 1, ^^ Ed. 1. 
 ch. 31, '• if one impleaded before any of the justices allege an ex- 
 ception, praying ihat the justices will allow it, that, if they will 
 not, and if he write the exception, and require the justices to put 
 their seals to it, the justices shall do so, and if one will not, anoth- 
 er shall." {b) 
 
 This statute extends to the plainiifi' as well as to the defend- Whether in 
 ant, (3) (c) and to a trial at bar as well as at nisi prius.(4)(rf) But ''"'"•°^' «^se«- 
 
 (1)1 Bl.icU. Rep. 5.56. Cowp. 161. (2) 2 Inst. 426- 
 
 As to the gener:il nature of bills of e.\- (3) 2 Inst. 427. 
 
 ceptions, see Bull. N. P. 316, Tidd Pr. (4) Thurston v. Slatford, 3 Salk. 
 
 311. 155; Adm. per Cur. in Duchess of 
 
 (a) See Note 537, p. 782. (J) See Note 538, p. 782. (c) See Note 539, p. 783. 
 (d) See Note 540, p. 783,
 
 312 
 
 0/ Bills of Exceptions, 
 
 [Ch. 9. 
 
 it has been doubted, whether it extends to criminal cases. Lord 
 Coke, in his exposition of the statute, states, that it extends to all 
 actions, real, personal, and mixed: but of criminal cases he makes 
 no mention. In the case of Sir H. Vane, (1) who was tried for high 
 treason, the Court refused to sign a bill of exceptions, " because," 
 they said, " criminal cases were not wiihin the statute, but only ac- 
 tions between party and party," From this authority, Mr. Serjt. 
 Hawkins infers only that a bill of exceptions is not allowable on an 
 indictment for treason or felony. (2) " Whether a bill lies not in 
 any criminal case," said Lord Hardwicke, " is a point not set- 
 tled." (3) It was allowed in the case of tiie King against Lord 
 Pagot and others, on an indictment for a trespass, (4) and also on 
 an' information in the nature of a quo warranto. (5) But Lord 
 Hardwicke, in the case before referred to, after saying " that he 
 had known a bill of exceptions allowed in informations in the 
 Court of Exchequer, which are civil suits for the king's debts," 
 added, " It has never been determined to lie in mere criminal pro- 
 ceedings in other courts. (6)(e) 
 
 Quarter 
 sessions. 
 
 A bill of exceptions cannot be allowed by the justices of the 
 peace at the quarter sessions, on the hearing of an appeal against 
 an order of removal. (7) (/) It can be used only on a writ of er- 
 ror, and therefore where a writ of error will not lie, there cannot 
 be a bill of exceptions. (8) (g) And on the trial of a feigned issue 
 out of a Court of Chancery, a party is not entitled to a bill of ex- 
 ceptions. (9) (/i) 
 
 When ten- 
 dered. 
 
 A party cannot avail himself of a bill of exceptions, unless 
 he insist upon the exception at the trial. If he waves it, he 
 acquiesces, and cannot resort back to the exception after a ver- 
 dict. The statute appoints not any precise time for tendering a 
 bill of exceptions; but the nature and reason of the thing re- 
 
 Grafton v. Holt, Sldn. 354. R. v. 
 Snnith, 2 Show. 287, contra. 
 
 (1) 1 Lev. 6S; Kel. 15, S- C. 1 Sid. 
 65, S. C. 
 
 (2) PI. Ci.b. 2, c. 46, s. 210. 
 
 (3) R. V. Inhabitants of Preston, 
 Rep. temp. Hard. 251. 
 
 (4) 1 Leon. 5. 
 
 (5) R. V. Higgins and others, 1 
 Ventr. 366. See also R. v. Nutt, 1 
 
 Barnardist. 307, a prosecution for a 
 libel. 
 
 (6) Rep. temp. Hard. 251. R. v. 
 Stratlon and others, 21 Howell's St. 
 Tr. 1187. 
 
 (7) See (2,) supra. 
 
 (8) Bull. N. P. 316. 
 
 (9) Bullen v. Mitchel, 2 Price, 416. 
 Wood, B. dissent. 
 
 (e) See Note 541, p. 783. (/) See Note 542, p. 784. (i-) See Note 543, p. 784. 
 (A) See Note 544, p. 785.
 
 b 
 
 Ch. 9.] a7id Demurrers to Evidence. 313 
 
 quires, that the exception should be reduced to writing, when 
 taken and disalioweil: not that the exception need be drawn up 
 in form; but the substance must be reduced to writing while the 
 thing is transacting, because it is to become a record. (1 ) (i) 
 
 When a bill of exceptions has been tendered, the Court will not 
 grant a motion for a new trial, unless the bill of exceptions be 
 abandoned. (2) (j) And if a party, who has tendered a bill of ex- 
 ceptions, bring a writ of error, before he has procured the Judge's 
 signature, he thereby waives the bill of exceptions, and will not 
 be permitted afterwards to tack or append the bill to the urit of 
 error. (3) (/b) 
 
 A demurrer to evidence is a proceedina:, by which the iudaes, Demnrrerta 
 , . ' . ° ;, J & ' evidence 
 
 whose provmce it is to determine questions of law, are called upon 
 
 to declare, what the law is upon the facts in evidence. And it is 
 
 analogous to the demurrer upon facts alleged in pleading. (4) 
 
 When the admissibility of the evidence has been established, ^^j"' *'• 
 the question, how far it conduces to the proof of the facts, which 
 are to be ascertained, is not for the Judge to decide, but for the 
 jury exclusively. And when the jury have ascertained the fact, 
 if a question arises, whether the fact thus ascertained maintains 
 the issue joined between the parties, or, in other words, whether 
 the law arising upon the fact is in favor of one or other of the par- 
 ties, that question is for the Judge to decide. (5) Ordinarily, he 
 declares to the jury, what the law is upon the fact which they find, 
 and then they compound their verdict of the law and fact. But if 
 the party wishes to withdraw from the jury the application of the 
 law to the fact, and all consideration of what the law is upon the 
 fact, he then demurs in law upon the evidence. (6) 
 
 It is reasonable, that either party should have such a power 
 of referring to the Court to decide, what the inference of law is 
 upon the facts; as the jury may refuse to find a special verdict, 
 
 (1) By Holt, C. J. Wright v- in Gibson and Johnson v. Hunter 2 
 Sh.iipe , 1 Salk. 288. H. Bl. 205, 206. * 
 
 (2) 2 Chit. Rep. 272. (5) 2 H. Bl. 205. 
 
 (3) Dillon V. Parker, 1 Bing. 17. (6) 2 H. Bl. 206. 2 Barn. & Croas. 
 
 (4) See the judgment of Eyre, C.J. 443 
 
 (t) See Note 545, p. 786. (;) See Note 546, p. 795. (&) See Note 647. p. 795. 
 \r^, T An •^ 
 
 Vol. I. 40
 
 514 Of Bills of Exceptions, [CIi. 9. 
 
 What ii nd- in U'hlcli case the facts woulc! not appear On the record. On the 
 other hand, as it is the peculiar province of the jiir}' to ascertain 
 the truth of facts and the credibihty of witnesses, the jiarty ought 
 not to be allowed, by a demurrer to evidence, or any other means, 
 to refer the trial of such questions to another tribunal. A demur- 
 rer must therefore admit the truth of all facts, which the jury 
 mii^ht find in favor of the other party upon the evidence laid before 
 them, whatever the nature of that evidence may be, whether of 
 record, or in writing, (1) or by parol. (2) According to Alleyn's 
 report of the case of Wright v. Pindar, it was resolved, "that he 
 that demurs upon the evidence ought to confess the whole matter 
 of fact to be true, and not refer that to the judgment of the Court; 
 and if the matter of fact is uncertainly alleged, or it is doubtful 
 whether it be true or no, because offered to be proved only by pre- 
 sumptions or probabilities, and the other party demurs thereupon, 
 he that alleges this matter cannot join in demurrer with him, but 
 ought to pray the judgment of the Court, that he may not be ad- 
 milted to his demurrer, unless he will confess the snaiter of the fact 
 to be true.'^ And now it is an established rule, that in a demurrer 
 to circumstantial evidence, the parly, offering the evidence, is not 
 obliged to join in demurrer, unless the parly demurring will dis- 
 tinctly admit u|)on the record every fact and every conclusion > 
 which the proposed evidence conduces to prove. (3) (Z) 
 
 When all matters of fact are admitted, the case is ripe for judg- 
 ment in matter of law upon the evidence, and may then be prop- 
 erly withdrawn from the jury; and being entered on record, it will 
 remain for the decision of the Judges. (4) 
 
 Not in the If in an information, or any other suit, evidence be given for the 
 
 King's case. 
 
 King, and the defendant offers to demur upon it, the King's coun- 
 sel cannot be compelled to join in demurrer, but in such case the 
 Court ought lo direct the jury to find the special matter; and up- 
 on that they shall adjudge the law. (5) 
 
 (1) Baker's case, 5 Co. Rep. 104. 2 II. Bl 187. Cocksedge v. Fan- 
 
 (2) Wright V. Pindar, Alleyn, 18. shaw, 1 Doug. 119—134. 
 2H. Bl 207. (4) 2 H. Bl. 208. 
 
 (3) Gibson and Johnson v. Hunter, (5) 5 Co Rep. 104. Bull. N. P. 
 
 3!3. 
 
 (i) See Note 548, p. 790-
 
 Cli. 9. J and Demurrers to EvidetKC. ^15 
 
 The whole proceeding upon a demurrer to evidence is under tlie 
 control and direction of the Judge at nisi prius, or of the Court on 
 a trial at bar. (1) The Court, said Mr. Justice Doddridge in the 
 case of Worsley v. Filisker, (2) may deny and hinder a party from 
 demurring, by overruling the matter in demurrer, if it seem to them 
 to be clear in law: and, in tliat case, the Court did overrule the 
 demurrer, and left the case to the jury. If the Judge overrule the 
 demurrer improperly, that may be made the subject of a bill of ex- 
 ceptions. (.3) (w) 
 
 Where a demurrer to evidence is admitted, it is usual for the Form of dmw- 
 
 'Dg up- 
 court or Judge to give orders to the associate to take a note of the 
 
 testimony: this should be signed by the counsel on both sides; 
 
 and the demurrer is then affixed to (he postea. (4) 
 
 Upon a demurrer'to evidence, the damages may be assessed . 
 
 . . ". '-' •' AssessTient of 
 
 conditionally by the jury before they are discharged; or they may danuges. 
 be assessed by another jury, upon a writ of enquiry, after the de- 
 murrer is determined. (5) 
 
 (1) 2 H. Bl. 20S. (4) Bull. N. P. 313. 
 
 (2) 2 Roll. Rep. 119. Bull. N. P. (5) Herbert v. Walters, 1 Ld. Ray. 
 S14. 2H.B1. 20S. 60. Plowd. 410. Doug. 222, n. 
 
 (S) 2 H. Bl. 209. 
 
 (m) See Note 549, p. 79S.
 
 ,^18 
 
 PART THE SECOND. 
 
 On Written Evidence. 
 
 The preceding chapters having treated of the competency of 
 witnesses, and of parol or unwritten evidence, it is now proposed 
 10 enquire into the several kinds of written evidence. 
 
 Writings are either public or private. Sonne public writings 
 are of record; others not of record. And public writings not of 
 record may be distinguished into such as are of a judicial charac- 
 ter, and such as are of a public nature but not judicial. In this 
 order it is proposed to treat of the several kinds of written evidence; 
 and to consider, first, in what cases they are admissible; secondly, 
 if admitted, how they ought to be proved. 
 
 CHAP. I. 
 
 Records- 
 
 Effect, as evi 
 dence. 
 
 Of Acls of Parliament. 
 
 Records are the memorials of the proceedings of the legisla- 
 ture, and of the King's courts of justice, preserved in rolls of 
 parchment; and they are considered of such autiiority, that no 
 evidence is allowed to contradict them. (1) Thus, if a verdict, 
 finding several issues, were to be produced in evidence, the op- 
 posite party would not be allowed to show, that no evidence was 
 offered on one of the issues, and that the finding of the jury was 
 endorsed on the postea by mistake. (2) On an indictment for as- 
 sisting the escape of a convict out of prison, if the record of the 
 conviction is produced by the proper officer, evidence is not admis- 
 sible to di-pute the statement in the record, or to show that it has 
 
 (I) Co. Lilt. 117, b, 260, a. 12 221. Glynn v. Thorpe, 1 Barn. & 
 
 Rep. 24, 25. Doddridge's English Aid. 156. Rei v. Hopper, 3 Price, 
 
 Lawyer, p 200. Lamb. Just. b. 1, 495. ' 
 
 e. 13, p. 71. Glib. Ev. 5- Bull. N. P. (2) Roed v. Jackson, I Eajt, S6*.
 
 Ch. 1 .] Of Acts of Parliarnent. 517 
 
 never been filed among the other records of the country; even 
 though the indictment refer to it with a proul patet^ as remaining 
 among those records. (1) An officer, who has the care and cus- 
 tody of records may be examined as to their condition, but he . 
 cannot be examined as to their matter or contents. (2) (n) 
 
 A record, then, is conclusive proof that the decision or judgment *^°"clniiTo, of 
 of the Court was, as is there stated; and evidence to contradict it 
 will not be admitted, (o) But it will not be conclusive as to the 
 truth of allegations, which vvere not material or traversable. (3) 
 Thus, for example, a party will not be estopped from averring, in 
 an action of debt on a bond, that the bond was made at A., though, 
 in a former action upon the same bond, he averred it to have been 
 made at B. (4) So, in the case of a conviction for felony, where 
 the jury have given a general verdict, the record will not be con- 
 clusive, that the offence was conmiitted on the day mentioned in 
 the indictment, for the time is not of the substance of the charge; 
 and, therefore, a party interested to dispute the forfeiture, (which, 
 in the case of real property, relates to the time of the offence,) may 
 falsify the record, and show that the offence was committed on 
 another day. (5) But if the jury find specially the precise day, 
 all parties are concluded. (6) 
 
 The first sort of records, to be considered, are acts of parliament; Acts of parlia 
 and these, says Ch. B. Gilbert, are the highest and most absolute 
 proof. Acts of parliament relate either to the kingdom at large, 
 when they are called general acts; or only to particular classes of 
 men, or to certain individuals, in which case they are called pri- 
 vate acts. Laws which concern the King, or all lords of manors, Poblie. 
 or all officers in general, or all spiritual persons, or all traders, are 
 public laws. But such as relate to the nobility only, or to spiritu- 
 al lords, or to particular trades, are private acts. (7) (p) This dis- P"vot«. 
 tinction between public and private acts is not applied, in collec- 
 tions of the English Statutes at large, to any statutes previous to 
 
 (1) R. V. Shaw and others, 1 Russ. (4) Com. Dig. tit. Estoppel, E. 6. 
 
 & Ry. Cr. C 526. (5) Ive's case, 3 Inst. 230. Gilb-. 
 
 (2) Leighton v. Leighton, 1 Str Ev. 230. 
 
 210. (6) Gilb. Ev. 230. 
 
 (3) Co. Li:t. 352, b. (7) Gilb. Ev. 39. 40. 
 
 (n) See Note 650, p. 799. (o) S«e Note 561, p. 799. {p) See Note &b2, p. 801-
 
 318 
 
 Of Acts of Parliament. 
 
 [Ch. 1. 
 
 those of Richard the Third. From that period the distinction 
 commences in tlie several tables prefixed to the respective col- 
 lections. (1) 
 
 Whenjadicial- i i • i 
 
 ly noticed. Tlic general rule is, that public acts of parliament are to be tak- 
 
 en notice of judicially by courts of law, without being foi'inally set 
 forth; but particular or pi'ivate acts are not regarded by the Judg- 
 es, unless formally shown and pleaded. (2) {q) In some cases, how- 
 ever, the necessity of pleading a private act has been dispensed 
 with; as, where there is a special clause, enabling the defendant, 
 in answer to any action for matters done under the act, to plead 
 the general issue; or, where the private act has been recognized 
 by some public net of the legislature. Thus, the statute 23 H. 6, 
 c. 9, relative to sheriff's bonds, (even supposing it in its original 
 constitution to be a private act, as relating only to officers of a cer- 
 tain description, which, however, according to the best authorities, 
 it is not,) must now he taken notice of judicially, because the stat- 
 ute 4 & 5 Ann. c. 16, s. 20, enables the sheriff to assign the bond, 
 and thus makes it a general law. (3) 
 
 Preamble. The preamble of an act of parliament, reciting, that certain out- 
 
 rages had been committed in particular parts of the kingdom, has 
 been adjudged by the Court of King's Bench, in a late case, to be 
 admissj.ble in evidence, for the purpose of proving an introductory 
 averment in an information for a libel, that outrages of that de- 
 scription had existed. (4) (r) Public acts of parliament, it was said, 
 are binding upon every subject; the Judges are bound to take ju- 
 dicial notice of their contents; every subject is, in judgment of 
 law, privy to the making of them, and supposed to know them; 
 the passing of an act of parliament is a public proceeding in all its 
 stages, and when the act is passed, it is, in the contemplation of 
 law, the act of the whole body of the kingdom. The Court of 
 King's Bench, for these reasons, were of opinion, that the pream- 
 ble in question had been properly admitted in evidence. 
 
 (1) See preface to new edition of 224. Samuel v. Evans, 2-T. R. 575. 
 Statutes at Large. (4) R. v. Sutton, 4 Maule & Selw. 
 
 (2) Bull. N. P. 222. 5.'}2. 
 
 (3) Saxby V. Kirkus, Bull. i\. P. 
 
 (g) See Note 553, p. 802. (r) See Note 564, p. 802.
 
 Ch. I.] Of Ads of Parliament. 319 
 
 In many cases a defendant will be precluded, by the nature of Act, when to 
 the pleadings, from talcing advantage of a public act of parliament. 
 Thus, in an action of debt upon a bond, the defendant cannot, un- 
 der the plea of non est factum, avail himself of the statute 13 Eliz. 
 c. 8, s. 4, (1) wliicii makes usurious contracts utterly void.(s) But 
 if he pleads, that the bond was void on account of usury, he may 
 insist upon the statute, though he has not formerly recited it. (2) 
 In an action of assumpsit, indeed, where the defendant may give 
 in evidence any thing that discharges the debt, or proves nothing 
 due, he may show under the general issue, that the contract was 
 usurious, (3) or founded on an illegal consideration, which makes 
 the contract void. (4) {t) 
 
 If an action or information be brought upon a penal statute, penal act. 
 and there is another statute which exenipts or discharges the de- 
 fendant from the penally, this latter act, as some books lay down 
 the rule, cannot be given in evidence under the general issue, 
 but ought to be pleaded; for the general issue is but a denial of 
 the plaintiff's declaration, and the plaintiff, it is said, has proved 
 him guilty, when he has proved him within tlie law, upon which 
 he founds his declaration. (5) It is, indeed, enacted, by statute 
 21 Jac. 1, c. 4, s. 4, that in actions on penal statutes, it shall be 
 lawful for the defendant to plead not guilty, or that he owes 
 nothing, and to give in evidence such special matter, which, if 
 pleaded, would have discharged the defendant at law: but this 
 suiiuic has been generally considered to attach only on ante- 
 cedent penal laws, and not to extend to those subsequently 
 enacted. (6) However, with respect to these also, it should 
 seem, according to the modern practice, the defendant may 
 plead nil debet, and give in evidence the statute; which would 
 show tliat he does not owe the penalty. Thus, on a prosecution 
 for exeicising a trade contrary to the provisions of a statute, the 
 defendant may show, under the general issue, that he is exempted 
 from penalties by a subsequent statute. (7) And on the trial of 
 
 (1) See also 12 Ann. st. 2, c. 16. (6) Gaul's case, 1 SalU. 372, Hicks's 
 
 (2) Com. Dig. tit. Pleader, 2 VV. case, ib. 4 Burr. 2467. Bull. N. P. 
 23. 196. French, q. t. v. Coxon, 2 Str. 
 
 (3) Ld. Bernard v. Saul, 1 Sir. 498. 1081. S. C. more fully stated in 2 
 Bull. N. P. 152, S. C. Selw. N. P. 562, n. ( 1 17.) 
 
 (4) Adm. per Cur. in Hussey v. Ja- (7) R. v. Pemberton, 1 Black. Rep. 
 cob, 1 Ld. Raym. 89. 230. 
 
 (5) 2 Roll. Ad. 683, pi. 13. Bull. N, 
 P. 225. 
 
 (s) See Note 555, p. 803. (i) See Note 556, p. 803.
 
 320 Of Verdicts and Judgments, [Ch. 2. 
 
 an Indictment against a parish for not repairing a highway, the 
 defendants may, on the general issue, give in evidence an act of 
 parHament, which exempts them from the repair, and transfers it 
 to commissioners. (1) If the same act, which imposes the penalty, 
 contains also the proviso of exemption, it is quite clear, that this 
 proviso may be shown under the general issue. (2) 
 
 (1) R. V. Inhabitants of St. George, Sibley v. Cunning, 4 Burr. 2469. Bull, 
 t Ciinipb 222. N. P. 225. 
 
 (2) Sutton V Bishop, 4 Bnrr. 2284. 
 
 GHAP. II. 
 
 Of Verdicts and Judgments of Courts of Record. 
 
 In treating of judicial proceedings, and enquiring in what cases 
 they are admissible in evidence, it is proposed to consider, first, the 
 verdicts and judgments of courts of record; secondly, the judg- 
 ments of courts of exclusive jurisdiction; and, thirdly, certain other 
 proceedings of an inferior kind. 
 
 The admissibility of verdicts and judgments of courts of record 
 is the subject of the present chapter, in which will be considered, 
 first, their admissibility, with reference to the parties in the suit; 
 secondly, their admissibility, with reference to the subject-matter 
 of the suit; thirdly, the admissibility, in civil cases, of verdicts, 
 which have been given in criminal prosecutions. 
 
 Sect. I. 
 
 Of Verdicts and Judgments j with reference to the Parties in the Suit. 
 
 The general principles, which govern this subject, are clearly 
 laid down in the celebrated judgment delivered by the Chief Jus- 
 tice De Grey, on a question referred to the Judges in the prosecu- 
 tion of the Duchess of Kingston. (1) 
 
 (1) 11 St, Tr. 261. 20 Howell'iSt. Tr. 53S, S. C,
 
 Sect. 1.] with refci encc to the Parties. 321 
 
 " Ii is true, as a gensral principle," said the Chief Justice De General rnlo. 
 Grey, in delivering; the opinion of the Judges, " that a tnuisaction 
 between two parties, in judicial proceedings, ought not to be bind- 
 ing upon a third; for it would be unjust to bind any person, who. 
 could not be admitted to make a defence, or to examine witnesses, 
 or to appeal fioni a judgment which he might think erroneous. 
 Hence liie deposiiions of witnesses in another cause in proof of a- 
 fact, the verdict cf a jury finding a Aict, and the judgment of the, 
 comt on facts found, alihough evidence against the parties and all 
 claiming under them, are not in general to be used to the prcjudrce 
 of strangers. "(l)(zt) To this general rule there are some excep- 
 tions, founded upon particular reasons, wliich vviil be stated in the 
 course of the present chapter. . 
 
 " From the variety of cases," continued Ch. J. De Grey., " rela- 
 tive to judgments being given in evidence in civil suits, these two 
 deductions seem to follow, as generally true: first, that^the judg- 
 ment of a court of concitrrejif jurisdiction, directly upon the poigt, 
 is, as a plea, a bar, or, as evidence, conclusive between the sair.e ])ar- 
 ties, upon the same matter directly in question in anbthVr'cCnn-t; 
 secondly, that the judgment of a court of exc/wsiVe jurisdiction, di- -• ■ 
 
 rectly upon the point, is in like manner conclusive upon the same 
 matter coming incidentally in question in another /court, betwe&n 
 the same parties, for a difierent purpose. But nehther the judg- 
 ment of a concurrent or exclusive jurisdiction is evidence of any 
 matter, wiiich came collaterally in question, though within their 
 jurisdiction, nor of any mat.er incidenialiy cognizable, nor of any 
 matter to be inferred by ai'gimient from the judgment." (2) 
 
 First, then, a iudsiment direcily upon the point, is, as a plea, Effect of judg- 
 
 •> ^ « nieiit vvlien 
 
 a bar between the same parties, ^i party maj be estopped by pleaded, 
 verdict on record: 'as, in an action of trespass, if the defend- 
 ant prescribes for common, and the plaintiff "traverses the pre- 
 scription, the defendant may say, tiiat in a foi-raer action by the 
 
 (J) .lud^merit of De Grey, C.J. in (2) 20 Howell':^ St. Tr. 538. 2 B. 
 
 Diilchess of Kingslon's case, 11 Stale ^ C. 8S7. Vide infra, p. 329. 
 Tr 261. 20 iJowell's St. Tr. 538. 
 
 (ti) Bee Note 557, p. 803. 
 
 Vol. I. 41
 
 S22 
 
 Of Verdicts and Judgments, 
 
 [Ch. 2. 
 
 plaintiff against the defendant, the same prescription was found 
 against the plaintifF. (1) 
 
 Effect, when 
 not pleaded. 
 
 A recovery in any suit, upon issue joined on matter of liile, is 
 conclusive upon the subject-matter of such title, if pleaded by way 
 of estoppel; but, unless so pleaded, it will not be conclusive. (2) 
 In Trevivan v. Lawrence, (3) it was held, that if a party will not 
 rely on the estoppel, when he may, but takes issue on the fact, the 
 jury shall not be bound by the estoppel, for they are to find the 
 truth of the fact. 
 
 Verdict for 
 same cause of 
 actioa. 
 
 Estoppel, 
 when. 
 
 In the late case of Vooght v. Winch, (4) an action on the case 
 for widening a water-channel to the damage of the plaintiff's mill, 
 the Court of King's Bench held, that a verdict obtained by the de- 
 fendant in a former action, which had been brought by the plaintiff 
 for the same cause, was admissible in evidence under the general 
 issue, though not conclusive; the jiidgnienl, would have been con- 
 clusive, if pleaded in bar by way of estoppel. When a judgment 
 is pleaded as an estoppel, the plaintiff will not be allowed to discuss 
 the case with the defendant, and for the second time to disturb and 
 vex him by the agitation of the same question: but if the defend- 
 ant plead not guilty in the second action, he has thereby elected 
 to submit his case to the jury, who are to give their verdict upon 
 the whole evidence submitted to them. (5) {v) The jury, 'upon 
 the general issue, are to consider, not whether the plaintiff is es- 
 topped from trying the question, but whether the defendant be guil- 
 ty of the wrongful act imputed to him. (6) 
 
 Effect of yer- When a judsiment is lileaded, it is proposed as somethiiie; 
 diet as evi- .. j o i 5 11 b 
 
 -dence. decisive and conclusive, as res judicata. When a verdict is 
 
 (1) Com. Dig. tit. Estoppel, (A. 1.) 
 citing 1 Show. 28. I'he case is, In- 
 cledon and another v. Burgess. The 
 doubt tliere was, whether tliis was a 
 good estoj)pel as against a co-|)hiintiiy, 
 a stranger to tiie former action; and 
 the Court gave judgment on another 
 point. On this subject see the judg- 
 ment of Lord Elleiiborough in tiie 
 case of Outram v. Worewood, 3 East, 
 354, 355. 
 
 (2) 3 East, 354, 365. 
 
 (3) Sall<. 276, cited by lloiroyd J. 
 Barn. & Aid. 672. 
 
 (4) 2 Barn. & Aid. 662. The cause 
 of uclioii was the same in botli cases : 
 otherwise the verdict in the former 
 ciisc would not have been admissible . 
 In assumpsit, the defendant may give 
 in evidence, under the general issue, 
 a recovery by the plaintiff in a former 
 action for the same cause. Stafford 
 v. Clark, 2 Bing. 377. 
 
 (5) Cv Ch. Justice Abbot, 2 Barn. 
 J: Aid. (iViS. 
 
 (6) By Bayley, J. ib. 669. 
 
 (i>) See Note 558, p. 804.
 
 Sect. 1.] ivilk reference, to Parties. 323 
 
 offered in evidence, it is proposed on ilie same footing as the 
 rest of the evidence in the cause, only as a medium of proof; 
 and the credit due to it must depend upon the nature and cir- 
 cumstances of the particular case. It is merely the opinion of 
 a former jury, upon tlie facts then laid before them, and with ref- 
 erence to the strength or weakness of the proofs on each side. 
 But how their opinion was formed, upon what grounds it proceed- 
 ed, or what means they had of judging, it is impossible to ascer- 
 tain. No succeeding jury can be placed precisely in the situation 
 of a former jury. In general, it may be remarked, we are apt to 
 take this kind of proof too much in the gross, and give it too much 
 weight in the scale of evidence, (w) 
 
 A judgment is not to be used as an estoppel against a party, who Thesame par- 
 does not stand in the same relation or character, as in the former ^"' ^^°' 
 suit, (a;) A woman is not estopped, after coverture, by an admission 
 upon record by her liusband aiid lierself during coverture. (1) An Heir, 
 heir, claiming as heir of his father, shall not he estopped by an es- 
 toppel upon him as heir to his mother. (2) A party suing as exec- Executor, 
 iitor, in an action of debt upon a bond, will not be estopped by hav- 
 ing been barred in an action upon the same bond, when he sued 
 as administrator; but he may show that the letters of administra- 
 tion have been since repealed. (3) For the same reason, an ac- Accessary, 
 quittal of a person as accessary cannot be pleaded by him in bar, 
 on a charge against him as principal; for the quality and nature 
 of the offence are quite different. (4) 
 
 A verdict against two defendants will be evidence in an action Evidence 
 
 upon the same subiect-malier, a2;ainst one of the defendants ^g^'"®| one oi 
 ' , '' . . several parties, 
 
 alone, if he alone was substanti:dly interested in the former when. 
 
 action, and the other defendant was joined with him merely for 
 
 form. Thus, where a person brought an action of trover against 
 
 a creditor and the sheriff, for goods levied under an execution, 
 
 in which action the plaintiff* failed, and afterwards he brought an 
 
 action of assumpsit against the creditor alone, to recover the pro- 
 
 (1) Com. Dig. tit. Estoppel, (C.) (4) 2 Hale, P. C. 244. Fost. Disc. 
 
 (2) Ibid. S><51. 
 
 (3) Robinson's case, 5 Rep. 32, b. 
 
 (jc) See Note 559, p. 811. (or) See Note 560, p. 811.
 
 324 0/ I'erdicts anl JuJjrments, [Cn. ^. 
 
 ceeds of lhc3 sali cftlio goods, ths judgment i.i thi firsl ac;tion was 
 \vAd to be a bar to thj socoiul vi:Uv.i.{l)(y) 
 
 Who the real In considering the effect of verdicts and judgments, courts of 
 
 jiar tes. justice will alvvnys take notice of the real parties to the suit.(z) In 
 
 Ejectment. an action of ejectment, the lessor of the plaintiff and the tenant in 
 
 possession are judicially considered the real parties. (2j (a) For 
 
 tlie same reason, in the case of Kinnersley v. Orpe,(3) which was 
 
 an action for a penalty, incurred by destroying fish in the [ilaiutiff's 
 
 Plea of iustifi- fishery, a verdict for the plaisitiff in a former action, for a trespass 
 
 cation, 111 nght committed in the same fisherv, against one who justified as servant, 
 of anollier. . , „ 
 
 was allowed to be evidence against the. defendant. At the trial of 
 
 the cau.sc, this was admitted, as conclusive evidence of the plain- 
 tiff's right of fishery; as it appeared, that the defendant in the sec- 
 ond suit acted by the command of the same person, under whom 
 the defendant in the first action had justified, and who was con- 
 sidered by the judge to be the true party in both causes. The 
 Court of King's Bench, afterwards, on a motion for a new trial, 
 considered the evidence admissible, though not conclusive. (6) 
 
 Verdict or Estoppels by verdict, adnaissions on record, &c. bind priviey in 
 
 judgment be- |j1qo(J (as the heir,) privies in estate, (as feoffee, lessee, &c.) and 
 
 tween pricies. ' ^ "^ ' ^ . ' 
 
 privies in law (as lord by escheat, tenant by curtesy, tenant in dow- 
 er, the incumbent of a benefice, and others who come in by act of 
 law in the post;) in the same manner, persons standing in either of 
 these relations will be bound, equally v/iih the parties themselves, 
 by a judgment in a former action for the same matt'M-, if pleaded in 
 bar.(4) 
 
 Privisa. A vcrdict or judgment in a former action, upon the same 
 
 matter directly in question, is evidence for or against privies in 
 blood, privies in estate, and privies in law, as v.'ell as for or 
 
 1. In blood, against the parlies to the suit. (c). If an ancestor has obtained a 
 verdict, the heir may give it in evidence, as privy to it.(5)((/) If 
 
 (i) Hitchin v. Campbell, 2 Black. (4) Co. lit. 352, a. Com. Dig. tit. 
 Rep. 827. Esloppol (B ) Outram v. Moiewood, 
 
 (2) Aslia V. Parkin, 2 Burr. 6dS. 3 East, 346. Lady Dartmouth v. 
 
 (3) 2 Doug. 517. r;ee the obser- Robert.^, 16 East, 334. 
 
 vntion on this case, in Outram v. (5) Per Cur. in Lock v. Norborne, 
 
 !\lore\vood, 3 East. SCG. And sco 3 Mod. Rep. 142. 
 Hancock v. Welch, infra, p. 332. 
 
 (y) See Note 551, p. Sll. {z) See Note 5G2, p. 812. (a) See Note 563, p. 812. 
 (6) Fee Note 564, p. 312. (c) See Note 565, p. 813. (d) See Note 566, p. 813.
 
 Sect. 1.] with reference to the Parties. S25 
 
 several estates in remainder bo limited in a deed, and one of the 2. lo estate, 
 parlies in remainder obtain a verdict, in an action brought against 
 him for part of the land, that verdict may be given in evidence by 
 another person in remainder, in an action brought against him for 
 the same land, although he does not claim any estate under the 
 first remainder-man; because they all claim under the same 
 deed. (1) So, a verdict for or against a lessee is evidence for or 
 against a reversioner. (2) (e) 
 
 A'verdict on a question of tithes, between a vicar and an occu- 3 Pnvy inlaw. 
 
 pier of land in the parish, is evidence between him and another 
 
 occupier, the vicar in both suits claiming; the same general ri2;ht to -rr. 
 
 • ' s o o V icar, or rec- 
 
 tilhes. (3) And a decree, in the Court of Exchequer, in a cause tor. 
 between the vicar on one side, and the impropriator on the other, 
 (establishing the vicar's title to small tithes, under an ancient en- 
 dowment, against the defendant, who insisted that he was only en- 
 titled to an annual payment in lieu of tithes,) is evidence in suits 
 between succeeding vicars and patrons; but not conclusive evi- 
 dence, as it would be, if the ordinary had been a party to the first 
 suit. (4) So, a judgment for or against the schoolmaster of a hospi- Q^i^e^^^^ "* 
 tal, concerning tlie rights of his office, has been admitted to be ev- 
 idence for or against his successor. (5) And so, where, on an infor- 
 mation in the nature o( quo warranto against the defendant, for act- 
 ing as baiiifi' of a corporation, the defendant pleaded, that be had 
 been duly elected under a nomination by two persons, who were 
 baililis of the corporation, and the point in issue was, wheth.er they 
 were bailiff's at the time of the election, the record of a judgment of 
 ouster in a quo loarranto against them, was adjudged to be good evi- 
 dence against the defendant, who claimed under them. (6)* These 
 
 (1) PyUe V. Crou.;h, 1 Ld. Raym. 1237. And see Ashby v. Power, 2 
 
 7S0. Com. Dig. tit. Evidence, (A. 5.) Gwill. 1239. Benson v. Olive, 2 Gwiil. 
 
 Bull. N. P. 232. 701. 
 
 (2) Per Cur. in Riishvorth v. (4) Carr v. Meaton, 3 Gvvil!. 12G1. 
 
 Countess of PetiibroUe and Currier, (5) Lord Brounker v. Sir R. At- 
 
 Hardr. 172. Com. Dig. lit. Evidence kins. Skin. 1.5- 
 
 (A. 5) Dull. N. P. 232. Gilt). Ev. (6) R. v. Hebden, Andr. 3S8; 2 
 
 35,36. Bp. of Lincoln V. Sir VV. El- Str. 1169, S. C. Bull. N. P. 231, S. 
 
 lis, 2 Gvvill. 632. C.;2Selvv. N. P. 10-17, cited from 
 
 (3) Travis v. Chalouer, 3 Gvvill. MS. R. v. Grimes, 5 Burr 2601, S- P. 
 
 *... Judgment of ouster has been considered in the nature of a judgment 
 t» rem, la the case of the King v. the Mayor of York, 5 T. R. 72 where 
 
 (e) Sea Note 557, p. 813.
 
 336 
 
 Of Verdicts and Judgments, 
 
 [Ch. 2. 
 
 cases fully establish ilje rule above laid down, that a verdict or 
 judgment directly upon the point is good evidence, not only for or 
 against the parties to the suit, l)ut also for or against any persons 
 standing in the relation before mentioned, of privies in blood, priv- 
 ies in estate, or privies in law. (/) 
 
 Verdict, not 
 evidence 
 against a 
 stranger. 
 
 Evidence, as 
 to damages 
 recovered. 
 
 The general rule is, that a verdict cannot be evidence for either 
 party, in an action against one who was a stranger to the former 
 proceeding, who had no opportunity to examine witnesses, or to 
 defend himself, or to appeal against the judgment, (g) Thus a 
 verdict in an action between A. and B. is not evidence against a 
 third person, C, who was neither party nor privy to the first suit. 
 The case of Green v. The New River Company, (I) where Lord 
 Kenyon said, that a verdict obtained in an action against a person 
 for the negligence of his servant, is evidence in a subsequent ac- 
 tion by the master against the servant, as to the quantum of dam- 
 ages, is not an eKceplion to the general rule. Such a verdict would 
 not be evidence of the fact of the injury, but admissible only as ev- 
 idence of special damages, to show the amount of what the mas- 
 ter was by process of law compelled to pay in the action brought 
 against himself. (/«) 
 
 Nor, for a 
 Blranger. 
 
 It is laid down, also, as a general rule, that a verdict is not 
 evidence for a stranger, against one who was a party to the for- 
 mer suit. Thus, it was resolved by Ch. J. Holt and the other 
 Judges of the Court, on a trial at bar, that no record of con- 
 viction, or verdict, can be given in evidence, but such whereof 
 the benefit may be mutual, that is, such as might have been 
 given in evidence either by the plaintiff or tlie defendant. (2) 
 And Ch. B. Gilbert lays it down, " that no body can take 
 benefit by a verdict, who had not been prejudiced by it had it 
 
 (1) 4 T. R. 590. And see 2 East, (2) R. v. Warden of liie Fleet, 
 
 459. As to the general principle, see Rep. temp. Holt, 134. Bull. N. P. 
 2 Price, 434. 233, S. P. 
 
 the case of R. v. Hebden and R. v. Grimes were cited in argument, in order 
 to show, that such a judgment cannot be conclusive against third persons, 
 Lord Kenyon is reported to have said, "If you derive title to a corporate 
 office through A., and the prosecutor show a judgment of ouster, against A., 
 it is conclusive against you, unless you can impeach the judgment as obt lined 
 by fraud. 
 
 (/) See Note 568, p. 814. (g) See Note 569, p. 815. (/i) See Note 570, p. 816
 
 Sect. 1.] with reference to the Parlies. 327 
 
 gone contrary." (1) {%) The same rule applies to depositions as d*P°s'''°"*- 
 well as to verdicts. Thus, if A. prefers his bill against B., and B. 
 exhibits his bill against A. and C. in relation to the same matter, 
 and a trial at law is directed, C. cannot give in evidence the depo- 
 sitions in the cause between A. and B., but the trial must be en- 
 tirely as of a new cause. (2) { j) 
 
 The reason why a verdict is not evidence against a person, who l^eason of tho 
 was neither a party to the former suit, nor claims under one of the 
 parlies, is, because he had no opportunity of calling.vvitnesses, or of 
 cross-examining those on the other side, nor of appealing against 
 the judgment, (k) And the reason why the verdict would not be ev- 
 idence for a stranger, even against a party who was engaged in the 
 former suit, seems to be, because, if he had been party to that suit, 
 instead of the person who gained the verdict, the result might 
 have been different; for, as the parties would in that case have 
 been constituted differently, the evidence might have varied; part 
 of the evidence might then have appeared inadmissible, or of a 
 doubtful character, or, perhaps, other evidence might have been 
 produced by the party who lost the verdict. Under such circum- 
 stances, to adn)it a verdict as evidence would be giving a party in- 
 directly the benefit of tcstimon}^, wliich he might be precluded from 
 using directly in his own suit. (J) But tliis reason, it is evident, on- 
 ly applies where the verdict is offered in evidence by a third person, 
 against the parly who failed in the former action, and not where it 
 i< jjroduced against the parly who succeeded. (?n) 
 
 ■^rhere are several exceptions to the general rule, above laid Exceptions to 
 down, which requires that verdicts or judgments should be admit- * *^^^^- 
 ted in evidence only between the original parties to the suit, or their 
 privies. 
 
 1. On a question of custom, or toll, a verdict is evidence,!. Verdict as 
 although between other parties; (3) for the custom or toll 's Joi|g"^&^^' 
 
 (I) Gilb. Ev. -28. Bull. N. P. 232. <2) Rushworth v. Countess of Pern- 
 Ward V.Wilkinson. 4 Barn. & Aid. broke and Currier, Hardr. 472. 
 412. The same principle is adopted (3) City of London v. Clarke, Carth. 
 by Eyre C. J. in his judgment in the 181. Bull. N. P. 233. 
 Dutchess of Kingston's case, 11 St. 
 Tr. 261. 
 
 (f) See Note 671, p. 818. {j) See Note 572, p. 818. (fe) See Note 573, p. 819. 
 (0 See Note 574, p. 819. {m) See Note 575, p. S19.
 
 328 Of Verdicts and Judgments, [Ch. 2. 
 
 lex Zoci, and it is as reasonable to give in evidence a verdict between 
 otber parties, as to prove a payment of the duty by strangers. So, 
 on a question of customary right of cointnon, (1) or a public riglit 
 of way, (2) (n) or on the liability to repair a l)ighuay,(3) (o) or on 
 manorial or other customs, (4) or on the public right of election to 
 n parochial office, (5) a verdict in afornuer action between any oth- 
 er persons is admissible in evidence. The common reputation of 
 the place would be evidence of the right; a fortiori the finding of 
 twelve men upon their oath's is evidence. (6) (p) On such ques- 
 tions, therefore, a verdict in an action between A. and B. is evi- 
 dence of the point, there directly determined, in an action between 
 C. and D., where the same point comes in issue; but it is clearly 
 not conclusive evidence for or against A. or B., in an action be- 
 tween either of them and a third person, C; (8) it could not be 
 pleaded in such a case, by way of estoppel. 
 
 On question of Another exception to the general rule, says Mr. Justice Buller, 
 ^ " ' is in a question of pedigree, where a special verdict between other 
 
 parties, finding a pedigree, would be evidence to prove a descent; 
 
 for in such case, what any of the family, who are dead, have been 
 
 heard to say, or the general reputation of the family, entries in 
 
 family books, ^c. are allowed. (9) (q) 
 
 2. Judgment 2. A judgment in rem in the Exchequer is conclusive as to 
 clu^sw"rju°ris!^' all the world. (10) The sentence of a Court of Admiralty is 
 diction. equally conclusive upon all persons. So is the sentence of ec- 
 
 clesiastical courts in some few particular instances, in which they 
 
 (1) 1 East, 357. 5 T. R 413, n. (9) Bull. N. P. 233. "Of this opin- 
 
 (2) Reed v. Jackson, 1 East, 355. ion," the writer adds, " wns iMr. Jus- 
 
 (3) R. V. St.|,Pancras, Peake, N. P. tice Wrioht, in the Duke of Athol's 
 C. 219. " case, which opinion is generp.liy ap- 
 
 (4) By Holt, Ch. J., Carth 181. proved, though (he deterininntion of 
 Case of thrt Manchester Mills, cited the re.=;t of the Court was contrary." 
 in Cort v. Kirkheck, i Doug. 222, n. The other Judges considered the i>pp- 
 i\5.) cial verdict inadiiiissiljic, as res inter 
 
 (5) Berry V. Banner, Peake, N. P. alios acta; and, for any thing they 
 C_ J5g know to the contrary, the same evi- 
 
 (6) By Lawrence J., 1 East, 357. donee, that was laid before the for- 
 Gilb Ev. 31 nier jury, might have been then pro- 
 
 (7) Biddulph v. Ather, 2 Wils. 23. dueed. 'See Neal v. D. of Athol, 2 
 
 (8) See the cases above cited, and Sir. 1151. 
 
 see Mayor of Hull v. Horner, Cowp. (10) See infra, c. 3, s 3. And se« 
 111, ad fin. R- v. Hebden, supra, p. 325. 
 
 (n) See Note 576, p. 819. (o) See Note 577, p. 819. (jd) See Note 578, p. 320. 
 (5) See Note 579, p. 820.
 
 Sect. 1.] ivith reference to tite Parties. 329 
 
 have an exclusive jurisdiction. This subject will be fully con- 
 sidered in a subsequent section, (r) 
 
 o. A judement of a court of quarter sessions, discharscins; an or- 3. Judgment 
 der ot removal, (not lor delect ot lorm but upon the merits, is con- appeals, 
 elusive as between the contending parishes, (but not as to a third Orderd's- 
 pnrish,) to establish this, that the settlement of the pauper was no^ tlmrged. 
 in the appellant parish at the time of the removal. (1) So, that if its effect, in 
 the same pauper were to be again removed from the one parish to disproving a. 
 
 ' . ' settlement, 33 
 
 ihe Other, the former judgment would negative and disprove his to appellant 
 settlement in the appellant parish, so late as the period of the fur- P^*"'^'- 
 mer removal. Or if a woman were to be removed from the one 
 parish to the other, as his wife, the former judgment would be con- 
 clusive, on an appeal against her removal between the same par- ^ 
 ishes, that the husband was not settled there at the time of the 
 prior order. So, if the respondents shoidd prove a derivative set- Privily to per- 
 tlement for the pauper from his father, it would be competent to 
 the appellants to show, that the father was removed from the re- 
 spondent parish to their parish, as his place of settlement, and that 
 the order for his removal was reversed; such evidence would be 
 admissible on account of the privity between father and child as to 
 the child's settlement, and would be conclusive to the extent above 
 stated. But it would not be competent to show that the pauper's 
 brother was removed, and the order of removal reversed; for here 
 there is not such privity, and though the settlement proved for the 
 pauper should be one derived from the common father, yet as the 
 father's settlement must have come into question on the former 
 appeal, (if it came into question at all,) only collaterally and inci- 
 dentally, the judgment in the former appeal would not be, respect- 
 ing the brother^ settlement, admissible evidence on the part of the 
 appellant, in answer to such derivative settlement. (2) 
 
 It will be competent to the respondent to prove, in reply, that 
 the judgment in the former appeal, reversing the order of re- 
 moval of tiie pauper, was given, not on inquiring into the set- 
 
 (1) R. V. Sarratt, Burr. S. C. 73. 883. The respondents here proved a 
 Harrow V. Rislip.Salk. 524. prima fucie case of settlement, by proof 
 
 (2) R. V. Knaptoft, 2 Barn. & Cress, of relief to the pauper. 
 
 (r) See Note 580, p. 820. 
 
 Vol. I. 42
 
 350 Of Verdicts and Judgments, [Ch. 2. 
 
 tlement, but on the preliminary objection, that the pauper was not 
 chargeable. (1) 
 
 Effect asto re- It appears to be clear, from considerine the laneiuaee and na- 
 movmg parish. •' ' ^ r-i 
 
 ture 01 an order oi removal, and the nature ol judgments m ap- 
 peals against such orders, tliat a judgment reversing an order of 
 removal from A. to B., ascertaining nothing but his negative prop- 
 osition, namely, that at a certain time the pauper was not settled 
 in B., the appellant parish, and upon this point it is conclusive in 
 any future appeal between the same parishes. But this judgment 
 determines nothing affirmatively with regard to the removing par- 
 ish. If, therefore, afterwards B. should remove the same pauper to 
 A., and A. should appeal, that judgment could not be used by B. 
 as evidence of the pauper's settlement in A.: that judgment itself 
 professes nothing upon that point, and affords not the least reason 
 even for supposing, that a settlement in A. was ever any part of the 
 subject of inquiry. It finds the negative^ that there was no settle- 
 ment in B.: but as to ihe aJUrmative proposition, of a settlement 
 ever having been in A., such a judgment is a mere blank, and sup- 
 plies no kind of information. 
 
 firmed.*^""* ^" order of removal, executed and not appealed against, (2) or 
 
 confirmed on appeal, (3) is conclusive of the pauper's settlement 
 at the time of the order, even as between third parishes, who 
 were not parties to that order. It is conclusive upon the ap- 
 pellant parish as to all the world, on any subsequent appeal: 
 And conclusive not only of the settlement of the persons named 
 in the order, but also as to children not included by name. (4) 
 Here, it may be observed, the party, against whom the judg- 
 ment was pronounced, had an opportunity of discharging them- 
 selves by proving the liability on a third parish; and this not 
 having been done, and the court of quarter sessions having con- 
 firmed the order of removal, the last settlement is adjudged to 
 be in the appellant parish; and this point being once deter- 
 
 (1) R. V. Wheelock, 5 Barn. & Cress 700. R. v. Bentley, 2 Bott, 704. R. 
 511. V. Sarratt, 2 Bott, 702. 
 
 (2) R. V. Cennelworth, 2 T. R. 598. (4) R. v. St. Mary, Lambeth, 6 T. 
 R. V. Corsham, 11 East, .388. Ri 615. R. v. Catteral, 6 Maule & 
 
 (3) Admitted, R. v. Rislip, 2 Bott, Selw. 83. 
 
 I
 
 Sect, l-l with reference to the Parties. ' 331 
 
 mined, the judgment must be fiiigl, that there must be some end 
 to litigation. (1) 
 
 4. Criminal proceedings, on which a person has been attainted, 4. Criminal 
 are between the king and the parly only, but ihey are evidence, ''"'^'^'^ '"o**- 
 as was before mentioned, to prove llie attainder, between all par- 
 ties, and on all occasions. A conviction and judgment prove the 
 incompetency of a witness; the reversal of the judgment, on a writ 
 of error, restores his competency. (2) (s) 
 
 A record of conviction for felony is admissible in evidence Convlciion of 
 against an accessary, to show that the felony has been commit- P"ncipai. 
 ted by a person convicted as principal. (3) These fads, the con- 
 viction of the principal has established with certainty, at least suf- 
 ficient to put the accessary to his answer. The rule is founded on 
 a legal presumption, that every thing in a former proceeding was 
 rightly and properly transacted. Another weighty reason, says 
 Mr. Justice Foster, is, that the witness against the principal may 
 be dead, or not to be found, when the accessary is brought upon 
 his trial, especially after a long interval between the trials. It is 
 admitted, however, that the record of conviction is not conclusive 
 evidence against the accessary, because it is as to him res inter 
 alios acta, {i) 
 
 A record of conviction on an indictment against a parish, lor For non-re- 
 not repairing a road, seems to have been held lo be conclusive highways. 
 evidence of the non-liability of another parish indicted for not 
 repairing the same road; at least, it is strong evidence. (4) If 
 it can be shown, that fraud has been practised in obtaining the 
 former verdict, this would vitiate the judgment. Fraud, as it has 
 been observed, (5) is only put for an example. If the parish con- 
 sists of several districts, which have immemorially repaired the 
 
 (1) By Holt, C J., in II. v. Rislip, 265. The altainder against ihe pria- 
 2 Salk. 524. 2 Bolt, 705. cipu! stands, till it is reversed, 9 Rep. 
 
 (2) See ante, p. 31, Lord Lo vat's 119, a. b. 
 
 case. (4) R. v. St. Pancras, Peak, N P. 
 
 (3) Fost. Disc, iii, c. 2, s. 2, pp. 364, C. 219, by Lord Kenyon. Upo.i iho 
 365, 367. R. v. Smith, i Leach, Cr. subject of the admissibility of convic- 
 C. 2S8. Though the judgment on the tions as evidence in civil cases, see 
 record is drawn up irregularly, and infra, sect. 3. 
 
 erroneous, proof of the conviction will (5) 2 Sauni. 159, a., note by the 
 be sufficient. R. v. Baldwin, 3 Campb. editor. 
 
 (s) See Note 5S1, p. 820. {t) See Note 582, p. 820.
 
 332 
 
 Of Verdicts and Ju Igments, 
 
 [Ch. 3. 
 
 respective highway lying within them, and if the districts, in 
 which the road incHcated is not situate, can show that tliey had no 
 notice of the former indictment (the defence having been made 
 and conducted entirely by the district within which the road lies,) 
 the Court will consider the indictment as being substantially 
 against that district, and give the other districts leave to plead the 
 prescription to a subsequent indictment for not repairing the high- 
 ways in the parish. (1) 
 
 Judgment evi- -^ judgment is evidence, in many cases, for or against parlies 
 dencebyway yylio were Strangers to the former suit, when offered as proof of 
 of inducement. ,, , r ^ t c ■ \ . ,i .• an 
 
 Proof oftitle. a collateral fact, by way oi mducement to the action. Ihus, 
 
 where a party claims under an execution, the judgment in the for- 
 mer suit, under which the execution issued, is part of his titl©^ 
 and admissible in evidence, though the other party may be a 
 stranger to that suit. So, if a record of conviction or attainder is 
 part of a title, it is admissihle in evidence, as such, between oth- 
 Proof of dain- er parties. Where the defendant is liable to pay the amount of 
 »g^- damages, which a third person has recovered in a suit against the 
 
 plaintiff, the verdict in that suit will be evidence to prove the 
 amount. (2) (tt) 
 
 Replevin. 
 
 Tenancy. 
 
 In an action of assumpsit by A. against B., for a rent due from 
 a certain day, it has been held that a judgment in an action of re- 
 plevin between B. and C, (in which C. niade cognizance as bailiff 
 of A., and one of the issues found against B. in that action was, 
 that he held the premises at the time of the distress, as assignee of 
 the original tenant, a bankrupt,) is evidence of B.'s tenancy. (3) (i;) 
 
 Assumpsit. In assumpsit, for goods sold and delivered against two defend- 
 
 ants (one of whom suffered judgment by default, and the other 
 defended,) the question at the trial was, whether the defendants 
 were partners at the time when the goods had been delivered. 
 Lord Kenyon held, thai a verdict on an issue, directed by the 
 Court of Exchequer, to try the fact of partnership, was con- 
 
 (i) R. V. Townseiid, 1 Doug. 421. N. R. Company, supra, p- 326, and 
 
 R. V. Eardisland, 2 Campb. 494 other cases there cited. 
 
 (2) On tliis account the defendant (3) Hancock v. Welch and Cooper, 
 
 would not have been a competent wit- 1 StarUie, N- P- C. 347. Lord Ellen- 
 
 nes3 in a former suit. See Green v. borough held it to be conclusive. 
 
 (u) See Note 583, p. 821. («) See Note 584, p. 824.
 
 Sect. 2.] ivith reference to the Subject-matter. S33 
 
 elusive evidence of a subsisting partnership, and that it could not 
 properly be deemed res inter alios acta, as both the defendants had 
 been the parties on record in that suit, and it was open to either of 
 them by any evidence l£> rebut the idea of a partnership. (1) (iv) 
 
 Sect. II. 
 
 Of Judgments^ viilh reference to the Subject-matter of the Suit. 
 
 The general rule laid down in Chief Justice Eyre's judgment in General rule, 
 the Dutchess of Kingston's case is, that the judgment of a court of 
 concurrent jurisdiction, directly upon the point, is, as a plea, a bar, 
 or, as evidence, conclusive between the same parties, upon the 
 same matter directly in question in another court. (2) (x) But it is 
 not evidence of any matter which came collaterally in question, nor 
 of any matter incidentally cognizable, nor of any matter to be in- 
 ferred by argument from the judgment. (3) (y) 
 
 It is a bar to any other action of the same nature as the Bar to other 
 /. / ^ \ -n • r I • • • actions, 
 
 first. (4) rJy actions ot the same nature, is meant actions m a 
 
 similar degree; not merely those which have a similitude of 
 form. All personal actions are of the same degree; therefore 
 each is a perpetual bar. (5) Thus, a judgment in an action of 
 debt is a bar in an action of assumpsit on the same contract. (6) 
 And a judgment in trespass, when the right of property is de- 
 termined, will be a bar in trover for the same taking. (7) So, a 
 verdict for the defendant in trover is a bar in an action for money 
 had and received, for the money arising from the sale of the 
 same goods. (8) (z) One great criterion for trying whether the 
 matter or cause of action be the same, is, that the same evidence 
 
 (1) Wlmteley v. Menheim and Levy, (5) 2 Black. Rep. 831. 
 
 2 Esp. N. P. C. 608. And see Low- (6) Slade's case, 4 Rep. 94. Com. 
 
 field V. Bencroft, Bull. N. P. 40. 2 Dig. tit. Action, (K. 3.) 
 
 New Rep. 371. ^7) Com. Dig. ib. Putt v. Ros- 
 
 (2) See ante, p. 321. ter, 2 Mod. 319. 3 Mod. 1, S. C. 
 
 (3) Judgment in Dutchess of King- Sir T. Rayni. 472, S. C. 2 Black, 
 ston's case, 20 Howell, 538. Rep. 831. 
 
 (4) Ferrar's case, 6 Rep. 7; Cro. (S) Hitchin v. Campbell, 2 Black. 
 El. 667, S. C. Sparry's case, 5 Rep. Rep. 827. 
 
 6\. Hitchit: v. Campbell, 2 Black. 
 Rep. 827, S31. 
 
 (tv) See Note 585, p. 824. (x) See Note 586, p. 824. (y) See Note 587, p. 826. 
 (z) See Note 588, p. 828.
 
 334 Of Verdicts and Judgments, [Ch. 2. 
 
 will maintain both the actions. But where the plainiifl' failed in 
 his first suit, on account of some defect in pleading, or from hav- 
 ing mistaken the form of action, the judi^raent will not be conclu- 
 sive, and he may bring another action to try the same right. (1) (a) 
 
 Several causes li* the plaintiff on tiie trial of his action attempted to prove a 
 
 of action, only demand against the defendant, and failed in the attempt, he can- 
 part proved. ... 
 
 not set it up again in a second action. But if he omitted to give 
 
 any evidence of the demand on the former occasion, though he 
 had an opportunity of doing so, he is not precluded from doing 
 it afterwards. Thus, when the plaintifl' in a former action de- 
 clared on a promissory note and for goods sold, but, upon exe- 
 cuting a writ of enquiry after judgment by default, gave no evi- 
 dence on the count of goods sold, the judgment was not a bar to 
 Award. ^^'^ recovering for the goods in another action. (2) {b) So, it has 
 
 been held, that an award, made on a reference of all matters in dif- 
 ference between the parlies, is no bar to any cause of action, which 
 the plaintiffhad against the defendant at the time of the j'eference, 
 if it appear that the subject-matter of the action was not enquired 
 into before the arbitrator. (3) (c) 
 
 If, in the case of Seddon v. Tutop, above slated, the phiintiff had 
 given any evidence at all on the account for goods sold, and the 
 verdict had included this with the rest of the plaintiff's demand, 
 the judgment might then have been pleaded as a judgment recov- 
 ered upon the same identical causes of action. (4) ((/) 
 
 raenforver-^" ^" considering the eflect of a former judgment, it is to be 
 dcit. observed, that the judgment can be final only for its own proper 
 
 purpose and object, with reference to the subject matter of the 
 suit, and upon the points there put in issue and directly deter- 
 mined, (t") Therefore, in an action for obstructing a walercouise, 
 where a verdict for the plaintiff in a former action, wiiich had 
 been brought against the defendant for anoUier obstruction to 
 the same watercourse, was offered in evidence under ihe general 
 
 (1) Robinson's case, 5 Rep. 33. Martin v. Tlioriiton, 4 Esp. N. C. F. 
 6 Rep. 8, a. Com. Dig. tit. Acliou, ISO. 
 
 (L. 4.) 2 Biaclv. Rep. 831. (4) Sea Lord Bagot v. WilliiTis, 
 
 (2) Seddon v. Tutop, 6 T. R. 607. 3 Darn. & Cress 235, 240. 
 
 (3) Ravee v. Farmer, 4 T. R. 146 
 
 (a) See Note 689, p. 834. {b) See Note 590, p. 837. (c) See Note 591, p 840 
 {(1) See Note 592, p. 841. (c) See Note 593, p. 843.
 
 Sect. 2.] loith reference to the Subject-matter. 835 
 
 issue, Lord Mansfield held, that the plaintiff had not obtained such 
 a deteruiinaiion of his right by the foraier verdict, as the law con- 
 sidered conclusive. It could only be conclusive upon the right, if 
 it could have been used and were actually used in pleading, by 
 way of estoppel, which it could not be in that case. (1) (/) 
 
 A verdict for the defendant, in an action on the case for widen- 
 ing a watercourse, is admissible evidence, under the general issue 
 in a second suit for the same cause of action, but is not conclu- 
 sive. (2) {g) And a recovery by the plaintiff in a former action of 
 assumpsit may be given in evidence on the part of the defendant, 
 under the general issue, in a subsequent suit for the same cause of 
 action. (3) {h) 
 
 There is a difference, it has been said, between real actions and Real, personal, 
 , . , , . r • I , r 1 actions, 
 
 personal actions, as to the conclusiveness ot a judgment. " In a 
 
 personal action, as debt, account, &c. the bar is perpetual; for the 
 plaintiff cannot have an action of a higher nature, and has no rem- 
 edy but by error or attaint. (4) But if the plaintiff be barred in a 
 real action by judgment on a verdict, demurrer, confession, &c., yet 
 he may have an action of a higher natui'e, and try the same right 
 again; because it concerns the freehold and inheritance." (5) Now, 
 although it is true that the same matter may be thus tried again, 
 yet the former judgment is no less conclusive upon the immediate 
 right then in demand, as far as that former judgment purports to 
 hind, ?.\v.\ against all such persons as it is competent by law to 
 bind. A judgment is final for its own proper purpose and object, j , 
 and no further. A recovery in any suit, upon issue joined on mat- when final, 
 ter of title, is conclusive u[-on the subject-matter. Thus, a finding 
 upon title in iresjiass. not only operates as a bar to the futuie re- 
 covery of damages for a trespass founded upon the same injury, 
 but operates also as v.Vi eslopjjel to any action, for an injury to the 
 same si!p[)osed right of possession. (G) {i) 
 
 (1) Sir F. F-velyn V. Ilaynes, cited (3) StnfTbrd v. Clark, 2 Bing. 377. 
 in Outi-am V Morevvootl, 3 East, 365. (4) Ferrer's case, 6 Rep. 7, 1st Res. 
 And see Cross v. Salter, 3 T. R. 639. (5) See the judgment in Outram v. 
 Sintzenick v. Lucas, 1 Esp. N. P. C. Morewood, 3 East, 359. 
 
 43. (6) lb. 354. 
 
 (2) Vooght V. Winch, 2 Barn. & 
 Aid. 662. 
 
 (/ ) See Note 594, p. 844. (g) See Note 595, p. 848. (A) See Note 596, p. 849. 
 (i) See Note 597, p. 849.
 
 SS6 
 
 Judgment in 
 ejectment. 
 
 Of the Admissibilitij of Verdicts^ [Cli. 2. 
 
 A judgment in one action of ejectment is not conclnsive in an- 
 other, in consequence of the fictitious nature of the proceedings. 
 However, it is conclusive evidence of the plaintiff's title against 
 the tenant in possession, in an action for mesne profits; for the 
 plaintiff, to entitle himself to recover in an ejectment, must show 
 a possessory right not barred by the stativte of limitations. Th's 
 judgment, like all others, only concludes the parties, as to the sub- 
 ject-matter. It proves nothing beyond the time laid in the demise; 
 because beyond that time the plaintiff has alleged no title, nor could 
 be put to prove any. As to the length of time, also, during which 
 the tenant has occupied, or as to the value, the judgment proves 
 nothing, for the same reason. (I) (J) 
 
 Sect. III. 
 
 Admissibility in Civil Cases^ of Verdicts in Criminal 
 Proceedings. 
 
 It appears to be a general rule, that a verdict in a criminal pro- 
 ceeding is not admissible in an action as proof of the fact, which is 
 the subject-matter of the suit. 
 
 The objections against the admissibility of such evidence seems 
 to be, first, that the parties are not the same in the civil suit; as in 
 the criminal case; and, secondly, that the party in the civil suit, 
 on whose behalf the evidence is supposed to be offered, might have 
 been a witness on the prosecution: but the first of these is the 
 principal objection, (k) 
 
 Sentence in 
 ecclesiastical 
 court. 
 
 In the case of Hildyard and Grantham, (2) which was an 
 issue directed by the Court of Chancery, to try a question of 
 legitimacy, a sentence against the supposed father and mother, 
 upon a proceeding against them in the consistory Court of Lin- 
 coln, for living together in fornication, was offered in evidence, 
 to prove that they were not married: but the whole Court of 
 King's Bench were of opinion, on a trial at bar, that the sen- 
 
 (1) Asiin V. Parkin, 2 Barr- 668. (2) Cited by Lord Hardwick in 
 
 See Hunter v. Britts, 3 Campb. 455, as Brownsord v. Edwards, 2 Ves. 246, and 
 
 to the efFect of a judgment against the in Rep. temp. Hard. 311. 
 casual ejector. 
 
 ( j) See Note 598, p. 849. (/c) See Note 599, p. 850.
 
 Sect. 3.] in Criminal Proceedings. 337 
 
 tence could not be given in evidence; " because, first, it was a 
 criminal matter, and could not be given in evidence in a civil 
 cause; next, because it was res inter alios acta, and could notafiect 
 the issue; but they held, that if it had been a sentence on the point 
 of marriage, in a question on the lawfuhiess of the marriage, it 
 might have been given in evidence, being the sentence of a court 
 iiaving proper jurisdiction.'' 
 
 In the case of Gibson v. Maccariy, (i) on an issue to try the Record of 
 
 r • , I • • r I 1 conviclion. 
 
 genumeness oi some ])romjssory notes, depositions ol a deceased 
 witness having been read on the part of the plaintiff, (in which 
 depositions the witness swore, tiiat llie defendant hud acknowledg- 
 ed the notes in question and also another note,) it was pro[)osed, 
 on the part of the defendant, to sliow by a record of conviction, that 
 the plaintiff had since been convicted of forging tl}is otlier note, 
 mentioned by the deponent; for such evidence, it was said, wouki 
 go to the credit of the deponent's evidence, as to the acknowledg- 
 ment of the notes in question; and, secondly.^ because there is at 
 all times a liberty given to examine into the plaintiff's character. 
 But this evidence was opposed on the part of ihe plaintiff, on the 
 ground, that no record of a criminal action can be given in evidence 
 in a civil suit, because such a conviction mighi have been upon 
 the evidence of a parly interesteti in the civil action; and Lord 
 Hardwicke is reported to have said, " that the general rule was as 
 had been slated by ilie jilainiiff's counsel, (2) and that it had lieen 
 so strictly kept, that in ilie case of Hillyards, on a question of legiti- 
 macy, the Court refused to admit a sentence of excommunication 
 in the spiritual court, for fornication between the father and mother 
 of the party, whose legitimacy was impeached." 
 
 Upon an issue to try the question of devise or no devise, a coro- Coroner's in- 
 ner's inquest, finding the deceased a lunatic, was offered in cvi- '^"^*'" 
 dence against the plaintiff, who claimed as executrix, for the pur- 
 pose of showing, that the deceased was incompetent to n^ake 
 a will; this evidence was objected to on tlie part of the plaintiff, 
 and the Court, were equally divided in opinion. The Chief 
 Justice (Parker) was of opinion that the inquest ought to be 
 
 (1) Rep lamp. Hard. 311. Ilalh.iway v. Barrow mid others, 1 
 
 (2) Ace. by Sir J. Mansfield, C. .1. in Campb 151. See also, 12 Mod. 337. 
 
 Vol. I. 43
 
 338 Of the Admissibility of Vtrdiets [Cii. "l. 
 
 admitted, " because it was for the plaintift''s advantage, as the 
 personal estate would be saved by the finding of lunacy;" and he 
 added, thai in Lord Derby's case an inquest post mortem was allow- 
 ed to be given in eviilence. Mr. Justice Povvys agreed with the 
 Chief Justice. Mr. Justice Eyre said, '' 'I'his is a criminal matter, 
 and ought not to be given in evidence in a civil proceeding. A 
 verdict on an indictment for battery cannot be read in an action for 
 the same battery. An inquest post mortem is in the nature of a civil 
 proceeding; but this is criminal, for it might induce a forfeiture of 
 the goods, if he had been found /eZo de se." And Mr. Justice Pratt 
 said, " If a verdict be given in evidence, it must be between the 
 same parties, and, therefore, an indictment at the suit of the king 
 cannot be read in an action at the suit of the party." 
 
 Acquittal ef A verdict of acquittal on an indictment for an assault would not 
 
 assaalt. ^^ evidence against the plaintiff in an action for the same assault: 
 
 nor would a conviction on the plea of not guilty be evidence for the 
 plaintiff. (/) But if a person indicted for an assault plead guilty to 
 the charge, and the record has been considered conclusive against 
 him in an action for damages for the same assault: (1) (m) it 
 seems, at least, to be admissible. (2) (n) 
 
 Conviction, its A record of conviction is conclusive proof of this fact, that the 
 person charged has been convicted. It is conclusive also of his in- 
 competency as a witness in a court of justice, while the judgment 
 must stand in force against him. (o) 
 
 It has been staled, indeed, by high authority, that a con- 
 viction in a court of criminal jurisdiction is conclusive evidence 
 of the fact, if it afterwards come collaterally in controversy 
 in courts of civil jurisdiction. (.3) In the case of a father con- 
 victed, on an indictnient for having two wives, it is said that 
 the conviction would be conclusive evidence in ar) action of 
 ejectment, where the validity of the second marriage is in 
 
 (1) Lamb. Just. B 2, e. 9, p. 427. 1808. It was nn undefended cause ; 
 cites 9 H. 6, 60, and 11 H 4, 65. but Mr Baron Wood suggested the 
 
 (2) This point was so ruled by objection, and after consideration, admit- 
 Wood, B. in an action for assault and ted the record in evidence. 
 
 battery, tried at Leicester Lent Ass. (3) Bull. N. P. 245. 
 
 (/) See Note 600, p. 851. {m) See Note 601, p. 851. (n) See Note 602, p. 852. 
 (o) See Note 603, p. 852.
 
 Sect. 3.] in Criminal Proceedings. 539 
 
 dispute. (1) In support of this, the case of Boyle v. BoyIe(2) is 
 cited; where a woman, who was libelled in the spiritual court in a 
 cause of jactitation of marriage, applied to the Court of King's 
 Bench for a prohibition, suggesting that the complainant had 
 been convicted of bigamy in marrying her; and the Court of King's 
 Bench granted the prohibition. The best report of this case is in 
 Comberbach, whence it appears that Holloway, C. J. and Alli- 
 bone, J, granted the [)rohibition against the opinion of Powell, J., 
 '* because," they said, " the libel isfor jactitation, and the ecclesi- 
 astical court will not allow the plea." Nothing further is to be 
 found in the case, to support such a general position, (p) 
 
 If the rule is, as Mr. Justice Buller has laid down in the passage 
 above referred to, namely, that a record of conviction may be giv- 
 en in evidence, on the same matter, in a civil suit, it must be un- 
 derstood, at least with this limitation, that the party, who offers 
 such evidence, was not a witness on the prosecution (q) To ad- 
 mit the record as evidence on any other condition, would be in ef- 
 fect to allow the party to a suit to give evidence for himself. The 
 record in such a case seems upon every principle inadmissible; and 
 the rule must be the same, whether the conviction v.as founded 
 solely on his testimony, or whether his testimony was corroborated 
 by other evidence. 
 
 On a trial for perjury, committed in an answer to a bill of in- Conviction of 
 junction, the person who was sued by the defendant in an action 
 then pending, and who in consequence filed the bill, was thought 
 to be a competent witness, '(3) on the ground that a conviction, 
 procured by his testimony, could not be used by him for obtaining 
 relief in equity against the defendant's action at law. (4) So 9" ■n'"'"''"*- 
 a conviction before a magistrate, on ilie information of the 
 injured party, is not evidence in an action brought by the same 
 party. (5) Ch. B. Gilbert seems indeed to have been of 
 opinion, that where the verdict in the criminal prosecution is 
 supported by other testimony, besides that of the party who 
 
 (1) Bull. N. P. 245. 2Atk. 412. (A) Bnrtiett v. PicUersgill, 4 East, 
 
 (2) 3 Mod. 164. Comberb. 72, S. 577. n. {d} 
 
 C (5) Smith v. Runiniems, 1 Campb. 
 
 (3) R. V. Boston, 4 East, 581. Bur- 9. Hathaway v. Barrow and others, 
 don V. Browning, 1 Taunt. 521. 1 (>ampb. 151. Burdon v. Browning, 
 
 1 Taunt. 520. 
 
 (p) See Note 604, p. 852. (q) See Note 605, p. 853.
 
 340 
 
 Acqnillal, its 
 eflect. 
 
 Of the Judgments of Courts, ^c. [Cii. 3. 
 
 wishes to avail himself of it in the civil suit, tliere the verdict may 
 be properly received in evidence: for though the verdict, he says, 
 '' may be diminished in point of authority, by showing that it was 
 partly founded on the oath of the party interested in the action, yet 
 the jury ought to respect it no further than as they presume it was 
 given and supported by other witnesses not concerned in the cause." 
 (1) It may still, however, be objected, that the fact might have 
 found credit from the party's oath; and since this evidence is so in- 
 termixed, that it cannot appear on what the jury relied, the verdict 
 ought not to be admitted at all as evidence. (r) 
 
 Though a conviction, says Mr. Justice Buller, in a court of crim- 
 inal jurisdiction, is conclusive evidence of the fact, if it afterwards 
 come collaterally in controversy in a court of civil jurisdiction; yet 
 an acquittal, which does not, like a conviction, ascei'tain facts, is no 
 proof of the reverse. (2) (s) It is, hovvever, conclusive, that the 
 party has been tried for the offence, and was not proved to be 
 guilty. (0 
 
 (1) Gilb. Ev. 2(). for the parish on a second indictment, 
 
 (2) Bull. N. P. 245. Gilb. Ev. 32. R. v. St. Pancrad, Peake, N. P. C. 
 A verdict of not guilty, on an indict- 219 As to acquittals in the Exche- 
 ment against a parish for not repair- quer, see infra, c. 3, s. 3, ad fin. 
 
 ing a road, is said not to be evidence 
 
 CHAP. !II. 
 
 Of the Judgments of Courts of Exclusive Jurisdiction. 
 
 Genera! rule. The great principle on this subject is, that a judgment of a 
 court of exclusive jurisdiction, directly upon the point, is conclusive 
 between the same parties, upon the same- matter coming inciden- 
 tally in question in another court for a different purpose :(7() but 
 that the judgment either of a court of concurrent or exclusive ju- 
 risdiction is not evidence of any matter, which came collaterally in 
 question though within their jurisdiction, nor of any matter inci- 
 dentally cognizable, nor of any matter to be inferred by argument 
 from the judgment. ( 1 ) 
 
 (I) Judgment of Ch. J. De Grey Tr. 261, fol ed. 20 Howell's St. Tr. 
 in Duchess of Kingston's case, 11 St. 538, S. C. 
 
 (r) See Note 606, p. 853. (s) See Note 607, p. 853. {i) See Note 608, p. 853. 
 (u) See Note 609, p. S53.
 
 Sect. 1.] Of Sentences in Ecclesiastical Couris. 341 
 
 But, alibough such sentences are conclusive, and cannot be Fraud. 
 impeached from within, like all other acts of the highest judicial 
 authority, they are impeachable from without. (1) Fraud is an 
 extrinsic collateral act, which vitiates the most solemn proceedings 
 of courts of justice. Lord Coke says, it vitiates all judicial acts, 
 whether ecclesiastical or temporal. (2) (v) 
 
 In treating of this subject, it is proposed to consider. First, Sen- 
 tences of Ecclesiastical Courts: Secondly, Sentences of Courts of 
 Admiralty, and of Foreign Couris: Thirdly, .Judgments in rem in 
 the Court of Exchequer, and by Commissioners of Excise, and 
 Sentences by Colleges in the Universities. 
 
 Sect. I. 
 
 Of Sentences in the Ecclesiastical Courts. 
 
 Spiritual courts have the sole and exclusive cognisance of Sentence on 
 , . ,. ,. 1 , , T r • / X A 1 question of 
 
 questionmg or deciding dn-ectly the legality ot marriage [lo). And marriage. 
 
 the temporal courts have an inherent power of deciding inci- 
 dentally, as far as temporal rights are concerned, either upon 
 the fact or legality of a marriage, when they form a part of some 
 more general issue within their cognisance, or are in some way 
 connected with the decision of the proper object of their juris- 
 diction. But vvhere, in civil causes, the ten^poral courts find 
 the question of marriage directly determined by the ecclesi- 
 astical court, they receive the sentence as conclusive proof of 
 the fact, it being an authority accredited in a judicial proceed- 
 ing by a court of competent jurisdiction. (3) They receive it 
 upon the same principles, and subject to the same rules, by 
 which they admit the acts of other courts. A sentence of Sentence of 
 nullity, therefore, and a sentence in affirmance of marriage, have °" ' ^" 
 been received as conclusive evidence, on a question of legitimacy 
 arising incidentally upon a claim to a real estate. (4) So, a sen- jactitation, 
 tence in a cause of jactitation has been received as evidence 
 against a marriage, upon a title in ejectment, and in personal 
 actions immediately founded on a supposed marriage. (4) In 
 
 (1) list. Tr. 261. case, 7 Co. Rep 42. Nedham's case, 
 
 (2) Fermor's case, 3 Co. Rep. 7S. b. 8 Rep. 1:35. b. Jones v. Bow, Carth. 
 
 (3) Judgment of De Gray, Ch. J. 225- Da Costa v. Villa Real, 2 Str. 
 11 St. Tr. 261. 20 Howell,- 538. 960. 
 
 Bunting's case, 4 Co. Rep. 29 Kenn's (4) 11 St. Tr. 261. 20 Howell, 53S. 
 
 (f) See Note 610, p. 854. (w) See Note 611, p. 856.
 
 342 Of Sentences in Ecclesiastical Courts. [Cli. 3. 
 
 all ihese cases, said C. J. I)e Grey, the parlies to the suit, or at 
 least the parties against whom the evidence was received, were 
 parties to the sentence, and had acquiesced under it, or claimed 
 under those who were parties, and who had acquiesced. 
 
 Between what The sentences of the spiritual courts are, in general, not evidence, 
 par les. except against the parties to the suit, in which the judgment was 
 
 given, or against those claiming under them. To make them 
 conclusive against strangers, would be giving them an effect beyond 
 what a judgment in the courts of common law is allowed to have. 
 In a few particular instances, indeed, namely, where issue is joined 
 on the record in certain real writs, on the legality of marriage or 
 its immediate consequence, on general bastardy, or on the fact of 
 profession, or deprivation, in those cases, upon the issue so formed, 
 
 Certificate of ([^q mode of trying the question is by reference to the ordinary, and 
 ordinary. , . .-. , , , , i • , 
 
 his certificate, when returned and entered on record in the tempo- 
 ral courts, is a perpetual and conclusive evidence against all the 
 world on that point; which exceptionable extent was the occasion 
 of a statute in the reign of Henry the Sixth, requiring certain pub- 
 lic proclamations to be made, for persons interested to come in 
 and be parties to the proceeding. (1) {x) 
 
 Sentence in A sentence in the cause of jactitation is evidence against a 
 
 cause of jacti- prjaj-rJage, and has been received as such, upon a title in eject- 
 ment, and in personal actions immediately founded upon a sup- 
 posed marriage; (2) but it will not, like a sentence of nullity, be 
 conclusive evidence. They are sentences of a very different 
 nature and operation. A cause of jactitation is ranked as a 
 cause of defamation only, and not as a matrimonial cause, un- 
 less when the defendant pleads a marriage: and, whether it 
 continues a matrimonial cause throughout, as some say, or 
 ceases to be so on fiiilure of proving a marriage, still the sentence 
 has only a negative and qualified effect, namely, that the par- 
 ty has failed in his proof, and that the libellant is free from 
 all matrimonial contract " as far as yet appears," leaving it 
 open to new proofs of the same marriage in the same cause, 
 
 (1) Part of the judgment of De (2) 11 St. Tr. 261. 20 Howell, 638. 
 Grey, C. J. 11 St. Tr. 261. 20 Howell, 
 538. 
 
 (x) See Note 612, p. 857.
 
 Sect. 1.] Of Sentences in Ecclesiastical Courts. 343 
 
 or to any other proofs of that or any other marriage in another 
 cause. And if such sentence is no plea to a new suit in the eccle- 
 siastical court, and is not conclusive there, in cannot conclude 
 another court, which receives the sentence, from^going into new 
 proofs to make out that or any other marriage. (1) Admitting the Its effect, 
 sentence in its full extent and import, it only proves, that it did not 
 yet appear that the parties were married, and not, that they were 
 not married at all; and, by the rule laid down by Ld. Ch. J. 
 Holt, (2) such sentence cannot be proof of any thing to be inferred 
 by argument from it; and, therefore, it is not to be inferred that 
 there was no marriage at any time or place, because the court had 
 not then sufficient evidence to prove a marriage at a particular 
 time and place. In the Duchess of Kingston's case, therefore, 
 on a charge of polygamy, where a sentence in a spiritual court, in 
 a cause of jactitation of marriage, was offered as conclusive 
 evidence, to disprove the second marriage, the Judges held, that 
 this sentence (even admitting it to be evidence on a criminal pro- 
 secution) could not be conclusive, but that the sentence and the 
 judgment of the Lords might well stand together, and both 
 propositions be true. The sentence would only prove, that it 
 did not then appear that the parties were married; but, because 
 the court had not then sufficient proof of the marriage specified, 
 it could not be inferred, that there was no marriage between them 
 nt any other time or place. 
 
 The ecclesiastical courts have also exclusive authority in Probates, and 
 deciding on the validity of wills of things personal, (y) and in ministraUon* " 
 granting administration. (3) And their sentences, pronounced 
 in the exercise of this sole and exclusive jurisdiction, are so 
 binding on the temporal courts, as to be conclusive evidence of 
 the right directly determined; but it will not be evidence of General role, 
 any collateral matter, which may possibly be collected or in- 
 ferred from the sentence by argument. (4) (z) Therefore, letters of 
 administration, which have been granted to a person as adminis- 
 
 (1) 11 St Tr. 261. 20 Howell, 538. (4) Blackham's case, 1 Salk. 290. 
 
 (2) Blackham's case, 1 Salk. 290. Thompson v. Donaldson, 3 Esp. N. P. 
 
 (3) Noel V. Wells, 1 Lev. 235. 1 C. 63. 
 Ld. Raym. 262. 3 T. R. 130. 
 
 (y) See Note 613, p. 867, (z) See Note 614, p. 857.
 
 .'544 Of SenUnce'^ in Eccle.^iasiical Courts. [Cli. 3. 
 
 tralor of the effects of A. B. deceased, arc not legitimate proof of 
 A. B.'s death. (1) (a) 
 
 Proof of will of ^ probate, unrepealed, is conclusive evidence, in civil cases, of 
 the validity of such will; (b) and, therefore, payment of money to 
 an executor, who has obtained probate of a forged will, is a discharge 
 to the debtor of the intestate, though the probate be afterwards 
 
 Of executor's declared null and void. (2) (c) A probate is the only legitimate 
 evidence of personal property being vested in an execulor, or of 
 the appointment of executor; (d) the original will is not admissi- 
 
 Act of devise ble for that purpose. (3) (e) But the probate of a will, devising real 
 properly, is not evidence of ihe contents of a will, as to such prop- 
 erty; (4) not, even when the original will is lost, (5) (except, in- 
 deed, as a mere copy;) the spiritual court having no power to 
 authenticate such a devise, as far as it relates to land. (/) 
 
 of freehold- 
 
 Forgery of 
 probate. 
 
 The adverse party may show, that the probate is forged, because 
 such evidence supposes that the spiritual court has given no judg- 
 ment; or if the probate was granted by an inferior court, the ad- 
 verse party may show that the testator left bona notabilia, for then 
 the court had not jurisdiction. (G) (g) But evidence will not be 
 admitted to prove that another person was appointed executor, or 
 that the testator was insane: (7) that would be to falsify the pro- 
 ceedings of the ordinary, in cases where he is exclusive judge, (/i) 
 
 Sentence not It appears, then, that the sentence of an ecclesiastical court, 
 
 conclusive in ,. , •,•!••, r ••!•.• 
 
 criminal cases. Qi''6Ctly upon a pomt withm US peculiar jurisdiction, is con- 
 clusive on the same matter, coming incidentally into question 
 in a civil case in another court. But, although the law stands 
 thus with regard to civil suits, proceedings in matters of crime, 
 and especially of felony, fall under a different consideration; (8) 
 first, because the parties are not the same, for the king (in 
 
 (1) Thompson v. Donaldson, 3 Esp. 154. St Leger v Adams, ib. 751. 
 
 N P C. 63. Dike v. Polhill, ib. 744. 
 
 "(2) Allen v. Dundas, 3 T R 125. (6) 1 Sid. 359. Bull. N. P. 247. 
 
 (3) Coe V. Westernham, 2 Selvv. N. 5 Rep. 30. 1 Lev. 236. 
 P. 730. (7) 1 Lev. 2.36. 
 
 (4> Bull. N. P. 245. (8) 11 St. Tr. 261. 20 Howell's 
 
 (5) Doe d. Ash v. Calvert, 2 Campb. St. Tr. 538. 
 389. Hoe v. Nathorp, 1 Ld. Kaym. 
 
 (a) See Note 615, p. 858. (b) See Note 616, page 858. (c) See Note 617, p. 
 859 (d) See Note 618, p. 859. (e) See Note 619, p. 860. (/) See Note 620, 
 p. 861. (g) See Note 621, p. 870. {h) See Note 622, p. 875.
 
 Sect, l.j OJ Sentences in Ecclesiastical Courts. 345 
 
 whom the trust of prosecuting |niblic offences is vested, a trust 
 executed by liis iujmedinie orders, or in his name by some 
 prosecutor,) is not a parly lo such p.roceedings in ihe ecclesiastical 
 court, and cannot be adii'itted lo defend, examine witnesses, or 
 in anv n.nnner intervene or appeal: secondly, such a doctrine 
 would tend to give the spiritual courts, which are not permitted 
 to exercise any judicial cognisance in matters of crime, and imme- 
 diate influence in trials for < ffences, and to draw the decision 
 from the course of common law, lo which it solely and peculiarly 
 belongs. (1) The case of the King v. Vincent, (2) therefore, Ir.diciinent for 
 (where the probate of a will is said to have been admitted, as " = "^^^ 
 conclusive evidence of its validity, on an indictment for the forgery 
 of the same will,) has been frequently much questioned, and ai 
 length expressly overruled. (3) 
 
 For the same reason, a sentence in a spiritual court, on the IndictiDcnt for 
 r ■ Ml • • • 1 bigamy. 
 
 question of marriage, will not preclude enquiry, on a criminal 
 
 charge of polygamy ; unless it is made to have such an effect 
 by an express provision of the legislature. Now, by the statute 
 of 1 J. 1, c. 11, which makes polygamy a felonious offence, and 
 for the trial of this offence necessarily gives to the temporal 
 courts a cognisance of the lawfulness of marriage, it is [;ro- 
 videdj that the act "shall not extend to any person divorced by 
 a sentence in the ecclesiastical court, nor to any persons where 
 the former marriage has been by the ecclesiastical court de- 
 clared null and void." There are two cases, then, put by the gg^jg^j.^ 
 
 statute, in which the sentence of the ecclesiastical court will when con- 
 
 , . . , . , , c elusive. 
 
 protect against the criminal enquiry, namely, the case ol a sen- 
 tence of divorce, and the case of a sentence of nullity of mar- 
 riage. (4) But the statute makes no exception in favour of a 
 sentence in a cause of jactitation: and as such a sentence is not 
 conclusive even in the court where it was delivered, and de- 
 clares not directly, but only collaterally, the invalidity of mar- 
 riage, it has been adjudged not to be a bar to a criniinal prosecu- 
 tion. (5) 
 
 (1) 11 St. Tr. 261. 20 Howell's U. 842, 343, n. 
 
 St. Tr. 538. (4) 1 East, P. C. 467. 
 
 (2) 1 Str. 481. (5) Duchess of Kingston's case, 11 
 
 (3) R. V. Gibson, R. v. Buttery and St. Tr. 260. 
 M'Namara, S. P. Russ. & Ry. Cr. C. 
 
 Vol. f. 44
 
 3i5 Of Sentences in Couris of Admiralty y [Cli. 5. 
 
 Sentence im- Ii lias been before mentioned, thai jiKleinents and sentences 
 peailuible for . ... ,.,.., , , , , 
 
 fraud. ol courts ol juslice, or any other judicial act, may be nnpeached 
 
 by evidence of fraud or collusion. And such evidence was 
 
 adjudged to be admissible, on the part of the prosecution, in the 
 
 case of the Duchess of Kingsto;i, who was tried for polygamy. 
 
 A distinction, in this respect, has been made between the case 
 
 of a stranger, (who cannot come in and reverse the judgment, 
 
 and therefore of necessity he must be permitted to aver, that it 
 
 was fraudulent,) and the case of a parly to the proceedings; the 
 
 Bartk>d^" "parly himself cannot give evidence of fraud, but must apply to 
 
 the Court, which pronounced the judgment, to vacate it. Thus, 
 
 in the case of Prudham v. Phillips, (1) where the defendant proved 
 
 her marriage with one M., in answer to which a sentence of an 
 
 ecclesiastical court was produced, (to which sentence she was 
 
 a party,) s'lov.ing that she was at the lime married to another 
 
 person. Chief Juslice Willes, after much debate, refused to 
 
 allow the defendant to prove, that the sentence had been obtained 
 
 by fraud, (i) 
 
 Sect. IL 
 
 OJ Sentences in Courts of Admiralty and Foreign Courts. 
 
 Sentence in ,,, -r , r ' * i • i i i i i » • 
 
 questions of ^ ^ • ^ JuclgG of ine Admu-aity has the sole and exclusive 
 
 piize. cognisance in questions of prize or not prize at sea. (2) The 
 
 true reason of this rule is, that prizes are acquisitions jure belli, 
 and the jus belli is to be determined by the law of nations, and 
 not by the particular municipal law of any country. A sentence, 
 therefore, in the prize court, deciding the question of prize, is 
 conclusive, in all it professes to decide, on the same point in- 
 cidentally arising in courts of common law. " It has been 
 clearly settled," said the Master of the Rolls in the case of 
 Kindersley against Chase, (3) " from the time' of Lord Hale 
 down to the })resent period, that a sentence of condemnation in 
 a court of admiralty, uhen it proceeds on the ground of enemy's 
 property, is conclusive, thai the property belongs to enemies, 
 and not only for the immediate purpose of such a sentence, but 
 
 (1) Ambler, 7G3, cited by t!:e Ld. Caux v. Eden, 2 Doug. 600. Lindo v. 
 Ch. from a MS. note of Serjt Parker. Rodney, n. 1. (ib.) 
 
 (2) Thompson v. Smith, 1 Sid. 320. (3) Coclipit, July, 1801, Park Ini. 
 BrowD V. Frankivn, Carth. 476. Le 490. 
 
 (t) See Note 623, p. 877.
 
 Sect. 2. J and in Foreign Couits. 347 
 
 is binding in all courts and jigaiiist all persons. The sentence of 
 a court of admiralty, proceeding in rem, must bind all parties, must 
 bind all the world." (j) 
 
 The sentence of a forei2;n court of admiraliy also, which is ac- ^entence of 
 
 ■" . f. ..... foreij^n court 
 
 knowledged by the law of nations, and of competent juriaihciion, of admiralty, 
 deciding the question of property, is conclusive, if the same ques- 
 tion arise in this country. (1)* And though in the case of Hughes 
 V. Cornelius, the leading case on this subject, thr> question upon 
 the foreign sentence arose in an action of trover, and not in an 
 action on a policy of iniiurance, where the non-compliance with a 
 warranty of neutrality is in dispute, yet, from that period down to 
 the present, the doctrine, there laid down, has been considered as 
 applicable to questions of warranty in actions on policies, as to General ruU 
 questions of property in actions of trover. (2) (/c) And it may now 
 be assumed as the settled doctrine of courts of English law, that 
 all sentences of foreign courts, of competent jurisdiction to decide 
 questions of prize, are to be received here as conclusive cvideaca 
 in actions upon policies of insurance, on every sultject immedi- 
 ately and properly within the jurisdiction of such fureigi courts, 
 and upon which they have professed to decide judicially. (3j " it 
 is now too late," said Mr. Justice Lawrence," (4) " to examine 
 the practice of admitting these sentences to the extent to whicii 
 they have been received, supposing that practice niigliL at first 
 have appeared doubtful. On the autliority of those decisions men 
 have acted for a long series of years, and entered i:ito contracts 
 of assurance in this country, with a knowledge of sucli decisions, 
 and in expectation that the questions, arising out of such cnniracts, 
 to which the decisions are applicable, will be ruled by theiu." 
 
 (1) Hughes V. Cornelius, 2 Show. 130. Chiisti.^ v. Se.?retin, S T. R. 
 Rep. 232. Sir T. Ray, 473, S. (J. 19!5. Kiader.sley v Ch isd, i^ar;<, Im. 
 Bernardi v. Motteu.f, 2 Doug. Rep 486. 
 
 575. (4) Lothi;iii v. llendersoi), 3 lioa. 
 
 (2) By Ciiambre, J., Lothian v. Ez. Pull. 624. Baring v. Chicot, 4 
 Henderson, 3 Bos. & Pull. 513. Bos. &, Pull. 214. Sea 1 Campb. 402. 
 
 (3) Bolton V. Gladstone, 5 East, 
 
 * This principle, which is est.ibiished i;i osjr courts of jmtice, previila also 
 in those of the United Slates of America. See .Jtli vol. of Cranch'* IL^porU 
 of Cases adjudged by the Supreme Court of tlis L'niied Slates, pp. 2G7, 271, 
 612, 513. 
 
 (;■) See Note 624, p. .?S0. (/) See Note C25, p 881.
 
 348 Of Sentences in Co'irh of AdmiralUj, [Ch. 3. 
 
 Conclusive of Sucli a sentouce of condemnation will be bindins; on the rights 
 what. . . . . . . 
 
 of third persons, as well as on the parties to the original suit; it 
 
 is conclusive between the assured and the underwriier, with 
 respect to every fact which it professes to decide. (Z) Thus, when 
 it proceeds on the ground of enemy's property, it is conclusive, 
 that the property belongs to enemies, not only for the immediate 
 purpose of such a sentence, but it is binding on all courts and 
 against all persons. (1) And the sentence is binding, whether it 
 proceed to condemn the ship expressly as being enemy's property, 
 or whether such a ground of decision can only be collected from 
 other parts of the proceedings; and this, although it appear on 
 the face of the sentence, that the prize-court arrived at the con- 
 clusion through the medium of rules of evidence and rules of 
 presumption, established only by the particular ordinances of their 
 own country, and not admisiible on general principles. (2) 
 
 Effect of sen- 
 tence. 
 
 The sentence is conclusive evidence of the points, upon which 
 it professes to decide. (3)(m) Thus, for example, if it proceeded 
 upon the ground of the properly not being neutral, it is con- 
 clusive against the insured, that he has not complied with his 
 warranty. [A) If no special ground is stated, and the ship is 
 condemned generally as lawful prize, it is to be presumed from 
 the condemnation, as no other cause appears, that the sentence 
 proceeded on the ground of the property belonging to an 
 enemy; and the sentence, in such a case, has been held to be 
 conclusive evidence that the properly was not neutral. (5)(n) In 
 the case of Bernardi v. Motteux, (6) where there was some 
 ambiguity in ihe sentence, so that the precise ground of the 
 determination could not be collected, the Court of King's Bench 
 considered themselves at liberty to examine, whether the ground 
 on which the sentence proceeded, but which was not stated, 
 actually falsified the warranty contained in the policy. Hence 
 
 (1) Kindersley v. Chase, Park, Ins Everth v. Hannom, 2 Marshall, 72. 
 490. All the cases on this subject Marshall v. Parker, 2 Campb. 70. 
 
 are there collected. (4) Barziliay v. Lewis, Park, Ins. 
 
 (2) Bolton V. Gladstone; 5 East, 469. Baring v. ClugeU, 3 Bos. & 
 155. 2 Taunt. 85. Baring v. Roy, Pull. 201. 
 
 Ex. Ass. Comp. 5 East, 99. (5) Saloucci v. Woodmas, Park, 
 
 (3) Christie v. Sccretan, S T R. Ins. 471. 8 T. R. 444. 
 
 l96.^ Fisher v. Ogle, I Campb. 4 IS. (6) 2 Dougl. 574. 5 Bos. & Pull. 
 
 2\5. 
 
 (i) See iNote 628, p 831. (/«) See Note 627, p. 883. {n) See Note 628, p. 883.
 
 Sect. 2. J and in Foreign Courts. 349 
 
 it follows, that it does not lie on the party, who produces the sen- 
 tence, to show that it has proceeded on the ground of enemy's 
 property ; but it is incumbent on the other party, who objects to 
 the sentence, to show that it proceeded on some other ground. ( 1 ) (o) 
 
 Where the sentence professes to be made on particular grounds, When not con 
 
 ' I • T elusive, 
 
 which are set forth in the sentence, but which appear not to war- 
 rant the condemnation, the sentence will not be conclusive as to 
 such facts. (2) (p) Of if the sentence has not decided the question 
 of property, nor declared whether it be neutral, but condemned the 
 property as prize, solely on the ground, that the ship had violated 
 an ex parte ordinance, to which the neutral country had not 
 assented, or on the ground of a foreign ordinance against the law 
 of nations, such a sentence, though conclusive of the question of 
 prize or no prize, would not be conclusive of the fact, whether or 
 not the ship were neutral. (3) (7) 
 
 Lastly, sentences of condemnation in foreign courts of prize are Not admissi- 
 ,..,,,, , . , !• ^ *i h\e, when, 
 
 admissible, only where such courts are constituted according to tne 
 
 law of nations, and exercise their functions either in the belligerent 
 
 country, or in the country of a co-belligerent, or ally in the war. (4) 
 
 It has, therefore, been determined, that a sentence pronounced by 
 
 the authority of the capturing power, within the dominions of a 
 
 neutral country, to which the prize may have been taken, is 
 
 illegal, (5) and consequently would not be admissible evidence to 
 
 falsify the warranty of neutrality, (r) 
 
 The sentence of any other foreign court of competent ju- Sentence of 
 . ,. . ,.,,.,• • 1-1 1 other foreign 
 
 nsdiction, directly deciding a question, which was properly courts. 
 
 cognizable by the law of the country, seems to be conclusive 
 
 here, if the same question arise incidentally between the same 
 
 parties in this country. Thus, the sentence of a foreign court 
 
 of competent jurisdiction, directly establishing a marriage in 
 
 (1) Kindersley v. Chase, Park, Ins. Bolton v. Gladstone, 2 Taunt. 85, 95. 
 490. See 2 Campb- 154. 
 
 (2) Calvert v. Bovil, 7 T. R. 623, (4) Oddy v. Bovil, 2 East, 473. 
 
 8 T. R. 444. (5) HavelocU v. Rockwood, 8 T. 
 
 (3) Pollard v. Bell, 8 T. R. 444. R. 268. Case of the Flad Oven, 8 T. 
 Bird v. Appleton, 8 T. R. 562 Ba- R. 270, n. (a); 1 Rob. Adm. Rep. 135. 
 ring v. Clagett, 3 Bos. & Pull. 215. Donaldson v. Thompson, 1 Campb. 
 
 429. 
 
 (o) See Note 629, p. 884. (p) See Note 630, p. 885. (q) See Note 631, p. 885 
 (f ) See Note 632,-p. 836.
 
 550 
 
 Of Sentences in Courts df Admirahy, [Ch. 5. 
 
 In civil casci. ijjgt country would be conclusive in any of our courts on ilie 
 validity of the marriage. (1) (s) So, where a party having accep'- 
 ed a bill of exchange drawn uj)on him at Leghorn, instiiuled a suit 
 ihere, in which suit his acceptance was vacated, and, upon his 
 return to this country, being sued again on his acceptance, applied 
 to the Court of Chancery for an injunction and relief against the 
 second action, Lord Chancellor \ ing decided, that the cause was 
 to be determined by the law of the country where the bill was ne- 
 gotiated; and, as the acceptance had been there declared void by 
 a competent jirisdiction, he thought the sentence must here zho 
 
 In crimir.al. be conclusive. (2) So, on a criminal charge, (as, for murder com- 
 mitted in a foreign counlry,) an acquittal in that country miglit be 
 pleaded here in bar to an indictment for the same cflence; (3) (/) 
 because, says Mr. Justice Buller, a final determination in a court of 
 competent jurisdiction is conclusive in all courts of concurrent 
 jurisdiction. (4) (m) From the two last cases the following jirin- 
 ciple seems to be properly deducible, namely, that a pai'ty, who has 
 been once discharged from a criminal charge, or from a legal de- 
 mand, by the sentence of a foreign court o( competent jurisdiction 
 may protect himself by that sentence against any fresh suit or 
 prosecution, instituted here for the same cause. 
 
 Action on 
 foreign juc 
 tnent. 
 
 Judgment 
 prim. fac. 
 denca. 
 
 If an action is brought in this country, as an action of ('ebt 
 or assumpsit, directly upon a foreign judgment, the sentence has 
 been considered prima facie evidence of the debt, but not con- 
 clusive. Li the case of Sinclair v. Frascr, (5) v.hicli was an 
 action in the Court of Session in Scotland, on a judgment (;f 
 the supreme court in Jamaica, tiie Court of Session rufused to 
 give any effect to the foreign judgment, and held, that the 
 plaintiff was bound to prove the ground, the nature, and the 
 extent of his demar.d, on which the judgment in Jai^aica had 
 been obtained. But the House of Lords, on an appeal, reversed 
 ' the decision of the Court of Session, pronouncing the follouing 
 special order of reversal: •' It is declared, that ihe judgment C)f 
 
 (1) By Ld- Hardwicke, in Ro;ich (3) Hirdiinson's case, cited I Sho\T. 
 V. Garvan, I Ves. 159. Hep. 6; also in 2 Str. 733. 
 
 (2) Buirov's V. Jemino, 2 Str. 733. (4) Bull. iN. P. 215 Roclie's case, 
 S. C. 1 Dickens, 48. See Plumoner 1 Leacli Cr- C. 160. 
 
 V. VVoodburne, 4 Barn- &, Cress. 625. (5) 1 Doug. 5, in no(e. 20 iio\>.-- 
 
 eil's St. Tr. 4b!fi. 
 
 (») See Note 633, p- 888- {t) See Note 634, p. S90. («) See Note 635, p. S90.
 
 Sect. !2.] ancl in Foreign Covrfs. 
 
 the supreme court of Jamaica ought to he received as evidence, 
 prima facie, of the debt, and that it lies upon the defendant to 
 impeach the justice thereof, or to show the same to have been 
 irregularly or unduly obtained." 
 
 In the case of Walker v. Witter, (1) where the question was, 
 whether the plaintiff in an action or a judgnient, obtained by him 
 in the supreme court of Jamaica, ought in jileading to show the 
 ground of the judgment, the Court of King's Bench determined 
 that this was not necessary; that foreign judgments are a ground 
 of action in this country, but that they are examinable, when made 
 the subject of a suit. 
 
 Lord Kenyon, indeed, in the case of Galbraiih v. Neville, (2) 
 which was an action of debt on a judgment in the supreme court 
 of Jamaica, said, he entertained serious doubts concerning the 
 doctrine laid down in the case of Walker v. Witter, (3) that 
 foreign judgments are not binding upon the parties here; and 
 after referring to a case, which might seem to point against his 
 opiiiicn, he adJed, " that is not an authority for saying, that we 
 ran revise tlie judgnients of the lowest courts in foreign coun- 
 tries, where they have competent jurisdiction." However, Mr. 
 Justice Euller in the same c;.se, said, " The doctrine which was 
 laid down in ilie case of Sinclair v. Fraser has always been con- 
 sidered the tiue line ever since, namely, that the foreign judg- 
 jiiMit bliali be prima facie evidence of the debt, and conclusive, 
 1. 11 it be impeached by the other parly." — " As to actions of 
 this sort," he continued, '•'■ see how far the Court would go, if 
 what was said in the case of Walker v. Witter were departed 
 from. It was there held, that the foreign judgment was only 
 taken to be prima fac^e evidence, that is, we will allow the same 
 force to a foreign judgment, that we do to those of our own courts 
 not cf record: (1) but if the matter were carried farther, we 
 should give them more credit; we bhould give them equal force 
 with those of courts of record here. Now a foreign judgment 
 has never been considered as a record: it cannot be declared on 
 
 (1) 1 Doug. 1. In ihc case of Her- (2) 1 Doug. Rep. 5, n. (2); and 6 
 
 l.ert V. Cook, also Willes, .37, in note. East, 475, n. (6) S. C. 
 
 Lord Mansfield declared, itint a foreign (3) 1 Doug. 5, note J. 
 
 judgnnent is not conclusive evidence of a (4) Ace. Ld. Mansfield in Herbert ▼. 
 
 debt. Cook, Willes, Rep. 37, n. (a.)
 
 conclusive. 
 
 362 Of Sentences in Courts of Admiralty, [Ch. 3. 
 
 as such, and a plea of nul tiel record in such a case is a nnere 
 nullity. How then can it have the same obligatory force? In 
 short, the result is this; that it is prima facie evidence of the 
 justice of the demand in an action of assumpsit, having no more 
 credit than is given to every species of written agreements, name- 
 ly, that it shall be considered as good till it is impeached." 
 
 Judgment not In the case of Philips v. Hunter, (I) Eyre, C. J., said, " It is 
 in one way only, that the sentence or judgment of the court of a 
 foreign state is examinable in our courts, and that is, when the 
 party who claims the benefit of it applies to our courts to enforce 
 it. When it is thus voluntarily submitted to our jurisdiction, we 
 treat it not as obligatory to the extent, to which it would be obli- 
 gatory perhaps in the country in which it was pronounced, nor 
 as obligatory to the extent to which by our law sentences and 
 judgments are obligatory, not as conclusive, but as matter in pais, 
 as a consideration prima facie sufficient to raise a promise. We 
 examine it, as we do all other considerations of promises, and 
 for that purpose we receive evidence of what the law of the 
 foreign state is, and whether the judgment is warranted by the 
 law." 
 
 For certain purposes, indeed, the judgments of foreign courts, 
 even courts of municipal law, will be conclusive, according to 
 their subject-matter; (2) but where such judgments are put in 
 suit, and made the subject of an action in this country, the 
 better opinion seems to be, that they are only prima facie 
 evidence of a debt, and have the force of a simple contract 
 between the parties. Even in the case of judgments of foreign 
 courts of admiralty, which are constituted on the universal law 
 of nations, judges of great authority have doubted, whether it 
 is not from an over-strained amity, that they have been allowed 
 to be conclusive. (3) And, perhaps, on considering the con- 
 stitution and the conduct of some municipal courts in some 
 foreign countries, it may be deemed amply sufficient, in the 
 way of respect and courtesy, to give their judgments the credit 
 
 (1) 2 H. Black. 410, in error. (3) See particularly Fisher v. Ogle, 2 
 
 (2) See Burrows v. Jemino, ante, p. Park, Ins. 552. 
 350. Tarleton v. Tarleton, infra, p. 
 354.
 
 Srct. 2.] and in Furn^ii Courts. 353 
 
 of prima facie evidence, and not lo allow ilieni more. It is not 
 unimportant, also, to observe, that this is precisely the degree of 
 credit, uliicli the judgments of our courts of justice receive in 
 some foreign courts; they arc treated as prima facie evidence of a 
 debt, but not conclusive. (I) (f) 
 
 VVlien it is said, that a foreign judgment is evidence of a debt, Foreign judg- 
 the rule must obviously be understood with this limitation, 'hat ^^jj ' 
 nothing appears in the record of the proceedings, on which the 
 judgment is founded, contrary to reason and justice. If the 
 judgment, for example, should have passed against a defendant, 
 who does not appear to have been served with process, or to have 
 had any opportunity of defending the action, such a judgment 
 would not be enforced by courts of justice in this country. This 
 point occurred in the case of Buchanan v. Rucker, (2) where it 
 appeared from the proceedings, that the sumujons had been served 
 by nailing up a copy of the declnration on the door of the court- 
 house; and it was adjudged, that although such might be the 
 practice abroad, it was a practice inconsistent with all principles of 
 justice, and that the judgment therefore could r,ot be made the 
 ground of an action of assumpsit, ii will be necessary, therefore, 
 to prove that the party was duly summoned, or, if he is described 
 in the proceedings as an absentee, that he had absented himself 
 from the country. (3) (w) Wiih respect to the proof of his ab- 
 sence, that fact might perhaps be inferred from a return o( non est 
 inventus to the process issued against him, if it be proved ihot he 
 had been in the country. (4) (.i) 
 
 Although the foreign judgment is only prima facie evidence Effect of For- 
 
 r 1 I r I'll • I I • • i' r ^ign judgment 
 
 01 a debt, lor whicli the suit abroad w;is msiittited, yet lor many ng evidence 
 purposes it will be conclusive between the [parties, according to 
 the nature of the subject matter, and the purposes to which the 
 evidence is applied. Thus, where a covenant had been made by 
 the defendant, lo indemnify the |)lHinlilT from ;i!l debts due from 
 
 (1) Such is the luw of the United (2) ! Cainpb. 63. 9 Ftist, J92, S. C. 
 
 States of Anieric'i. The decisions (3) Duiiianan v. UuciiPr, 9 F.iist, 
 
 upon this point, cited in an American 192. Cav;in v. St(nv;ir(, I Starlc. N. P. 
 
 edition of an l^nglish Treatise on Evi- C. 525 
 
 dence, are the following; Buttrick v. (4) By Lord Eiienl)orough, Cnvan v. 
 
 Allen, 8 Mass. Rep. 273. 9 Mass. Rep. Stewart, "l Stark. N. P. C. 525. 
 464. 3 Johns Rep. 169. 
 
 (f) See Note 891, p. 891. (w) See Note 903, p. 903. (.r) See Note 63S, p. 915. 
 
 Vol. I. 45
 
 564 Of Judgments in rem in Exchequer, [Cli. 3. 
 
 a Inte pariiiersliip, subsisting between tlie plaintiff, the defendant, 
 and a third |>erson, and iVoni all siiits on account of non-payment, 
 proof on tiie [)arl of the plaintiff", that proceedings bad been insti- 
 tuted in a foreign court against the late partners, for the recovery 
 of a partnership debt, and that a decree |)assed against them for 
 want of an answer (in consequence of which a sequestration 
 issued against the estate of the phiiniif}', and lie was obliged to 
 pay the. debt,) is conclusive evidence, in an action on the covenant 
 osainst the defendant, who was a pariy to ilie foreign suit, and 
 who, having notice, ought to have appeareil and n)ade his defence; 
 and the defendant is not at liberty to show, that the proceeding.* 
 are erroneous, (1) 
 
 Sect. HI. 
 
 0/ Judgments in rem in the Exchequer, by Commissioners of Ex' 
 cise and by Colleges in ihe Universities. 
 
 Jud«:meni of ^ JUDGMENT of Condemnation in the Court of Exchequer, 
 
 condemniilion , ... ,,..,. , . 
 
 in the Exche- where proceedmgs in rem have been mstituted, is conclusive 
 ^"*''- evidence in any other court, as to all the world, that the goods 
 
 were liable to be seized. (2) The jurisdiction of the Court of Ex- 
 chequer in this case is not only competent, but sole and exclusive; 
 and though no formal or express notice is given to the owner of 
 the goods in person, jet he has sufficient notice to try the point of 
 forfeiture, by the seizure of his projierty, by the proclamations ac- 
 cording to the course of the court, and by the writ of appraisement. 
 
 A record of condemnation, for adulterating spirits, is evidence 
 between other parties; hut a record of conviction for penalties, 
 which is a proceeding in personam, not in rem, is of a different 
 nature, and subject to the same rules as other judicial pro- 
 ceedings. In an action, therefore, for th? piice of s|)ii!ts, where 
 the defence was, that the ."=;piriis had been adulterated, such re- 
 cord of conviction has been held not to be admissible as pro()f of 
 the adulteration. (3) The Court of Exchecjner decided, in the 
 
 (I) Tyrlpton v. Tarleton, 4 Maule & %•. ApuillHr. 7 T. R. 6.%. Bull. N. P. 
 
 Seivv. 21 Mo!ony v GiliLons, 2 Can [itj. 244 fee nlto i!ic ciises cited in 5 Price, 
 
 602. :02 
 
 (2) Scoit V. f Iie.-irri.an, 2 Black. Rep. (.T) Unit v. M'Naniara, 4 Price, 154, 
 
 979, By L/1. Keuyon, C J., in Geyer iu i;oie, by Git^bs, Cb J.
 
 Sect. ?).] and bij Commissioners of Excise, ^-c. 355 
 
 case of the Attorney-general v. King;, (1) that a record of con- 
 detnnation of goods, proceeding from one act of |iarliament, is 
 not evidence with respect to th.e commission of an offence cliarged 
 under another act. And Mr. Baron Wood held, (2) in the same 
 case, ihat l!ie record, if admissible at all, could not be admitted as 
 proof of any immaterial allegation, uhicli might be contained ia 
 the record. (3) 
 
 It appears also to have been decided in several cases, that a Condemnation 
 jiidgment o\ condemnation by commissioners ot excise, in ^ s'umtira o{ ex- 
 inatter exclusively within their jurisdiction, is conclusive, on the *^'*®- 
 right of seizure coming into question in any other court; (4) 
 although, in one instance, the Court of Common Pleas were of 
 opinion that the judgment would not have such a binding effect, 
 on the ground that the commissioners of excise were not a 
 court of record. (5) But, it is to be remembered, the general 
 principle Established in the Duchess of Kington's case is not 
 confined to the judgments of courts of record, some of which are 
 of a very inferior description, but extends equally to every court of 
 competent or exclusive jurisdiction; and die examples cited by 
 C. J. De Grey, in illustration of this principle, are all drawn from 
 the proceedings in ecclesiastical courts, none of which are classed 
 among courts of record. 
 
 An acquittal in the Exchequer was considered by Lord Acquittal. 
 Kenyon, in the case of Cooke v. Sholl, (6) to be conclusive 
 evidence of the illegalily of the seizure. That was an action 
 of trover for several pipe? of wine seized by the defendant for 
 want of a permit. At the trial of the cause, the plaintiff gave in 
 evidence a record of acquittal in the Court of Exchequer. The 
 defendant then insisted, that, under the circumstances of this 
 case, the permit had expired before the seizure was tnade; and 
 Mr. Justice Heath, who tried tlie cause, was of that opinion: 
 but on its being suggested, that there had been a different de- 
 
 (1)5 Price, 196. (5) H<nshaw v. Pleasance, 2 Black. 
 
 (2) 5 Price. 211. Rep. 1174. 
 
 (3) See ante, c. 2, s 1 (6)5 T. R. 203, and aee a c.tse in 
 
 (4) Terry v. Huntington, Hard. 12 Vin Ab. (A. b. 32, pi. l.beforo 
 490. Fuller v. Fotch, Carlh. 346. Price B. ncc ) 
 
 Roberts v. Fortune, before Lee, Ch. 
 J., 1462. 4 Harg. Law Tracts, 46S, n.
 
 i'o6 Of Judgments in rem in E.vchequer, [Cli. 3. 
 
 termination in iho Court of Exchequer, ho reserved the point 
 lor the opinion of the Court of Kii);^'s Bench, with liberty to 
 enter a verdict for the defendant, if it should be adjudged for 
 him. When the cas-j came before the Court, Lord Kenyon 
 thought the record of acquittal precluded all reasoning on the 
 construction of the p rmii; but as the question respecting the 
 judgment of acquittal was not iipon the record, and I he only 
 question was on tlie coiisiruciioii of the permit, a verdict was 
 entered for tlie defendant. This case, therefore, has not de- 
 termined, that an acquittal in the KKchequer would be con- 
 clusive evidence of the illegality of a seizure, although certainly 
 that appears to have been the opinion of Lord Kenyon. It 
 may be observed, that an acquittal does not, like a conviction, 
 ascertain any precise fact. The sentence might Iiave proceeded 
 on the ground, that sufficient evidence was not produced, on 
 the part of the crown, to warrant the seizure; and though 
 the sentence may be conclusive as against the crown," it seems 
 reasonable, that it should not have such a conclusive operation, 
 in an action for seizing the properly, against a third person, 
 who was not a party with the crown in the original proceedings, 
 and had no notice or opportunity for supporting the condem- 
 nation. 
 
 The principle which has been before laid down as applicable 
 to the sentences of courts of justice, seems to apply equally to 
 the judicial proceedings of other tribunals, which are invested 
 Sentence of with an exclusive or peculiar jurisdiction. A sentence of de- 
 coUe'^e^^'*'" ^ privation or expulsion of one of the members of a college, by 
 the master and fellows, or by the visitor on an appeal, upon a 
 subject within their jurisdiction, is conclusive in courts of law; 
 and the justice of their decision cannot be questioned even in 
 the King's Bench, though it belongs to that court to control 
 them, if they exceed the bounds of their jurisdiction. On this 
 )>rinciplc, a mandamus, to restore the fellow of a college, has 
 been frequently refused. (1) In ilie case of Philips v. Bury, it 
 was decided, nn an appeal to the House of Lords, that a sen- 
 tence of deprivation, by the visitor of a college, acting within the 
 limits of his visatorial jurisdiction, was conclusive evidence in 
 
 (I) Dr. Widiiiigton'd case, 1 Lev. 23. Dr. Patrick's case, 1 Lev. 65. 
 C;i3e of New College, 2 Lev. 14.
 
 Sect. 3.] and by Commissioners of Excise y ^c. 357 
 
 an action of ejectment for one of the college estates; and the 
 judgment of the Court of King's Bench, which had been given on 
 the opinions of three Judges against the opinion of Lord Holt, 
 was reversed. (1) And in the last case on this subject, which was 
 a prosecution for an assault in turning out of a college one who had 
 been expelled, the Court of King's Bench determined, that 
 evidence, impeaching the sentence of expulsion, had been properly 
 rejected at the trial. (2) 
 
 It is a general rule, with respect to special and limited juris- Sentence by 
 dictions, that where a person acts as judge, (that is, where he has c°uj,t^'^"' 
 over the subject-matter a general jurisdiction, which he has not 
 exceeded) he will not be liable to have his judgment examined In 
 an action brought against him. (3) Thus, if an ecclesiastical 
 judge proceed to excommunicate in a cause, in which he has juris- 
 diction over the subject-matter, he will not be liable to an action, 
 although he proceed to excommunicate erroneously; but if he ex- 
 communicates in a matter, in which he has no jurisdiction, he will 
 be liable to an action. (4) And where a statute provides, that the 
 judgment of commissioners, appointed by the act, shall be final, 
 their decision is conclusive, and cannot be questioned in any col- 
 lateral proceeding. It has therefore been held, that a certificate 
 from commissioners for settling the debts of the army, stating that 
 so much was due from the defendant (an army-agent) to the 
 plaintiff (an officer,) was conclusive in an action brought to 
 recover the money; and that no evidence could be received to 
 show, that the commissioners had formed a wrong judgment. (5) 
 
 (1) Philips V. Bury, Skin. 447. (4) Ackerley v. Parkinson and 
 1 Ld. Raym. 5, S. C. 2 T. R. 346, Mawdesley, 3 Maule & Selw. 411. 
 
 S. C. (5) Moody V. Thurston, 1 Str. 481, 
 
 (2) R. V. Grundon, Cowp. 315. ruled by Pratt, C. J.; and a new trial 
 
 (3) Marshalsea case, 10 Rep. 76. afterwards refused by the whole 
 Dr. Groenvelt v- Dr. Burwell, 1 Ld. Court. See also Lane v. Hegberg, 
 Raym. 454, 467; 1 Salk. 396, S. C. Bull. N. P. 19; Earl of Radnor v. 
 Miller v. Scare, 2 Black. Rep. 1145. Reeve, 2 Bos. & Pull. 391. Brown 
 
 Moses V. Macferlan, 2 Burr. 1006. v. BuUen, 1 Doug. 407.
 
 358 Of Proceedings in Chancery. [Cli. 4. 
 
 CHAP. IV. 
 
 Of certain other Judicial Proceedings. 
 
 We proceed now to treat of the admissibiliiy of certain other 
 judicial proceedings; and in the present chapter, it is proposed to 
 consider, first, the admissibihty of proceedings in Chancery; sec- 
 ondly, the adinissibil ty of depositions on interrogaiories, or depo- 
 sitions taken before justices of the peace and coroners, of inquisi- 
 tions taken by coroners, of certain other inquisitions, of depositions 
 and judgments in inferior courts, of awards, and of certificates. 
 
 Sect. I. 
 
 Of Proceedings in Chancery. 
 
 Decree. A DECREE in the Court of Chancery may be given in evidence 
 
 on the same footing, and under the same limitations, as the verdict 
 or judgment of a court of common law. (1) (y) 
 
 Bill. The common opinion used to he, that a bill in Chancery, which 
 
 had been followed up by other proceedings, was admissible in evi- 
 dence against the complainant, as an admission of facts. (1) 
 *' The allegations in the bill, it was said, must be siqiposed to be 
 true: nor is it to be presumed, that the bill was preferred by a 
 counsel or solicitor, without the privity of the parly himself." (2) 
 However, it is notorious, that many of the facts stated in the bill 
 are the mere suggestions of counsel, made for the |)urpose of ex- 
 torting money from the defendant. The general rule therefore is, 
 that a bill in Chancery will not he evidence, except lo show, that 
 such a bill did exist, and that certain facts were in issue between 
 the parties, in order to introduce the answer or the depositions of 
 witnesses: (3) it is not to be admitted as evidence, in courts of law, 
 to prove any facts either alleged or denied in the bill. (4) (z) 
 
 (1) See ante, c. 2, 8. 1. 196. Bull. N. P. 235. Bowerman v. 
 
 (2) Snow V. rhillips, i Sid- 221. Sjbourn, 7 T. R. 3. 1 VVighlw. 32.5. 
 Gilb. Ev- 42. Wollet v. Roberts, 1 (4) Banbury peerage case, reported 
 Chan. Cas. 64, contra. from MS. in 2 Selw. N. P. 685. 
 
 (3) Lord Ferrers v. Shirley, Filzgib. 
 
 (y) See Note 639, p. 915. (z) See Note 640, p. 923.
 
 Sect. 1.] Of Proceedings in Chancery. 359 
 
 Lord Kenyon, indeed, is reported to have admitted a bill in Aniwer. 
 Chancery, filed by an ancestor, to be evidence of a |)edigree there 
 stated, as a declaration in the family. (1) But it was resolved by 
 the Judges in the Hanbnry peeragfe case, on a question put to them 
 by the House of Lords, that a bill in equity, or depositions, cannot 
 be received in evidence in the courts below, on the trial of an 
 action of ejectment, against a [)arly not claiming or deriving in 
 any manner under the plainlifF or defendant in the Chancery suit, 
 either as evidence of the facts therein deposed to, or as declara- 
 tions respecting pedigree. (2) And even if the' bill or depositions 
 could be received, some extrinsic [)roof must be given of the rela- 
 tionship between the complainant and the party whose pedigree is 
 disputed. It would not be sufficient, that the bill purports to 
 have been fdedby a relation. In the Banbury peerage case, before 
 mentioned, where C. D.'s legitimacy was in question, the com- 
 plainant oflered in evidence a bill filed in C. D 's name by E. F. 
 his uncle and next friend, dialing his legitimacy, but there was no 
 proof that E. F. was his uncle: the Judges, being referred to for 
 their opinion, were uiianimous, that extrinsif proof of the relation- 
 ship was essential, and the bill, which was above 150 years old, 
 was accordingly rejected. (3) 
 
 Answers in Chancery (a) are confessions on oath, and therefore Answer. 
 strong evidence against the party who makes ihem. (6) When an 
 answer is read, all the [)arts must be taken together, connected, 
 and entire. If only a part is read in evidence, the other party is 
 entitled to have the whole read; (4) (c) and if, on exceptions being 
 taken, a second answer is put in, the defendant may insist upon Whole to ba 
 having that also read, to explain what he swore in his first an- 
 swer. (5) ((/) This is the general rule, when an answer of either 
 party to the suit is given in evidence against him, to prove a 
 point in issue. But if an answer is produced, merely for the 
 j)urpose of showing the incompetency of a witness, who has in 
 bis answer admitted himself interested in the event of the cause, 
 
 (1) Tiiylor V. Cole, sitt. after Hil. (4) By Holt, C. J , Lvnch v. Clarke, 
 tfinii, 179f), 7 T R 3, n. 3 Salk. 153. Earl of Bulh v. BaUer- 
 
 (2) 2 Selw. N. P. CS5. See also sea, 5 Mod. 9. 
 
 BerUcley peerage case, supra, p. 2-13, (5) R. v. Carr, I Sid. 41S. Bull. N. 
 
 nnd Freeman v. Phillipps, supra, p. 246. P. 237. 
 
 (3) See Note (4) ante, p. 358- 
 
 (a) See Note 641, p. 924. (6) See Note 6 i 2, p. 926. (c) See Note 643, p. 926. 
 (</) See Note 644, p 923.
 
 560 Of Proceedings in Chancery. [Cli. 4. 
 
 Answer. that part only is to be read wliich states the ground of interesl;(l) 
 
 for if the witness is incompetent, liis evidence ought not to be 
 received in any form; on the other hand, if he is competent, he 
 ought to be examined viva voce in open court. 
 
 When you read the answer of a party, says Ch. B. Gilbert, 
 the confession must be all taken together: you shall not take 
 only what makes against him, and leave out what makes for him; 
 for the answer is read as the sense of the party. (2) But although 
 the defendant may regularly insist on having the whole of the 
 answer read, that by comparing the several parts with each other, 
 the true meaning and extent of the admissions may be more clearly 
 understood, it will not therefore follow, that all the parts of his state- 
 ments are equally credible, or that every thing, which he asserts, 
 is to be admitted as strictly proved. If, for example, he states a 
 
 Hearsay state- fact, not from his own knowledge, but on mere report, that would 
 ment in an- ^ ■, ., ...» , i ^ \ • ii 
 
 swer. '^ot be evidence in his lavour; as, on the other hand, it would not 
 
 be evidence against him, in case he had acknowledged the report 
 to be different. The objection is, not that he speaks in his own 
 behalf, (for that difficulty is waived by the other party, who offers 
 the answer in evidence,) but that he speaks from hearsay, (e) and 
 has not the means of knowledge, which alone can be resorted to. 
 In the case of Roe on demise of Pellalt and others against Fer- 
 rars, (3) where the defendant gave in evidence an answer by the 
 lessors of the plaintiff, Mr. Justice Chambre, observing upon the 
 degree of positive proof which the lessors of the plaintiff had drawn 
 from the answer in their own favour, expressed himself thus: — " It 
 is true, that the answer was introduced into the cause by the de- 
 fendant, on whose behalf some parts of it were read. But in 
 those parts, on which the lessors of the plaintiff relied, they speak 
 only to what 'they have heard as truth.' I think that was not ad- 
 missible evidence, for it appears to me, that where one party reads 
 a part of the answer of the other party in evidence, he makes the 
 whole admissible only so far as to waive any objection to the compe- 
 tency of the testimony of the party making the answer. (/) and that 
 he does not thereby admit as evidence all the facts, which may 
 
 (1) Sparin v. Drax, trial at bar, (3) 2 Bos. & Pull. 542,548. See 
 Bull. N. P. 238. also the remark of Lord Mansfield, in 
 
 (2) Gilb Ev. 44. Bermon v. Woodbridge, 2 Doug. 788. 
 
 (e) See Note 645, p. 928. (/) See Note 646, p. 928.
 
 Sect, l.j Of Proceedings in Chancery. 561 
 
 happen to have been stated by way of hearsay only, in the course Answer, 
 of the answer to a bill filed for discovery. This point," he added, 
 " does indeed appear to have been contested at the trial. Had it 
 been contested, I should have thought the court bound to send (be 
 case down for a new trial." {g) 
 
 An answer to a bill filed in the Court of Exchequer, in a suii Evidence 
 
 ,».,,, . . , • , , against privy, 
 
 instituted lor titne-hay by a vicar against the rector and others 
 
 (owners of lands in the parish), in which answer the defendants 
 
 disputed the vicar's claim, and declared that the tithes in question 
 
 belonged to the rector, will be evidence, in an action for tithes by 
 
 a succeeding rector against owners or occupiers of the same lands, 
 
 for the tithes of which the former suit was instituted. (1) " I'his 
 
 appears to me," said Lord Ellenborough, not to be res inter alios 
 
 acta, but, inter eosdem acta; and was not only evidence, but strong 
 
 evidence, against the defendant, who stood in the same place, by 
 
 derivation of title and by legal obligation, as the former occupier of 
 
 the same land; and that former owner, upon his oath, in a suit 
 
 against him by the vicar. Las declared that the tithe is due to the 
 
 rector, and not to the vicar; and now that sauie person, in ejject, 
 
 (that is, the present owner, who purchased of the former owner 
 
 the very lands, over which tithes were now claimed,) is deraigning 
 
 the title of the rector in favour of the vicar." (h) 
 
 In the case last cited, the answer was adjudged]to be admissible Examined 
 in evidence, although it did not appear that there had been any g^^'^ ° ""' 
 decree made in the suit; and proof of an examined copy was suffi- 
 cient proof of the answer. (2) " I know of no case," said Lord 
 Ellenborough, " where, in a mere civil proceeding, it is held neccs 
 sary to have the actual answer signed by the party, in order to 
 read it against him ; the rule only applies where the party is 
 charged criminally, as in perjury, or in an action for a malicious 
 prosecution, which is in the nature of a criminal proceeding." 
 
 (1) Lady Dartmouth V. Roberts, 16 Gwill 1239. Benson v. Olive, 2 Gwill. 
 
 East, 334. The suit was abandoned by 701. Earl of Sussex v. Temple, 1 Ld. 
 
 the vicar, who from ihat time had ac- Raym. 310. 
 
 quiesced. See also Travis v. Chaloner, (2) 16 East, 334. 
 3 Gwill. 1237. Ashby v. Power. 3 
 
 (g) See Note 647, p. 929. (h) See Note 648, p. 930. 
 
 Vol. 1. 46
 
 362 
 
 Of Proceedings in Chancery. 
 
 [Ch. 4. 
 
 Answer. 
 
 Answer of 
 minor. 
 
 Of co-defend- 
 ant. 
 
 or partoer. 
 
 Of married 
 woman. 
 
 The answer of a minor by his guardian is not evidence against 
 him(l); because, in reality, it is the guardian's answer. The 
 guardian is sworn, not the minor, who possibly may know noth- 
 ing of its contents. And therefore an answer, purporting to be 
 the answer of a minor by his mother and guardian, may be read 
 against the mother in another caus-j in whicli she is defendant in 
 her own capacity. (2) (i) 
 
 The answer of one defendant, generally speaking, is not evi- 
 dence against a co-defendant (3) (j); for if that were allowed, a 
 plaintiff might make one of his friends a defendant for the purpose 
 of procuring an answer in his favor against the co-defendant, who 
 would have no opportunity of cross examination, {k) But as an 
 adnn'ssion by one of two partners, concerning joint contracts during 
 the partnership, is good evidence to charge the other partner in an 
 action against him alone (4) : so, in an action by a creditor 
 agamst some of the partnership firm, the answer of another part- 
 ner to a bill, filed by other creditors, has been received in evidence 
 against the defendants, not, indeed, to prove the partnership, but, 
 that being established, as an admission against those who are as 
 one person with him in interest. (5) 
 
 It does not appear to have been expressly determined, whether 
 an answer by a mairied woman can be used as evidence against 
 her in an action after the husband's death. In the case of Wrot- 
 tesley against Bendish and his wife (6) (where it 'was argued 
 that tiic wife was not bound to answer, on the ground that the 
 answer could not be read against iier husband, nor against her- 
 self, as she is supposed to ba under the control of the hus- 
 band, and not to answer freely), the Lord Chancellor said, " he 
 would not give any opinion, whether the answer may be read 
 against the wife when discovert : but as, in all times hereto- 
 fore, the wife as well as the iiusb;;nd had been compelled to 
 
 (1) Eccleslon V. Petty, Caith. 79. .3 IJusscy and others, v. Eraddick, 1 
 P. Wnis. 237. Gilb. Ev 44. Cowling Tuunt. Rep. 104. 
 
 V. Ely, 2 Stnrkie, N. P. C. a66. (5) Grant v. Jackson and others, 
 
 (2) Eeasley v. .Magialh, 2 Schoale Peake, N. P. C. 203. See Lucas v. 
 and Lefroy's I?cp. 34. De La four, 1 Maule & Selw. 250.; 
 
 (3) Wych V. Meiil, 3 P. Wms. 311, vide supra, p 92. 
 
 12. Vts S6l. (I)) 3 P. Wins. 237. See Barron v. 
 
 (4) Wood and others, Assignees of Grillard, 3 Ves. & Beam. 166. 
 
 (i) Sec Note 649, p 931. {j) See Note 650, p. 931, {k) See Note 651, p. 932.
 
 Sect. ].] Of Proceedings in Chancery. 363 
 
 answer, he would not overtlirow what had besn the constant Depositions, 
 practice. (/) 
 
 Depositions in a suit in Chancery, which are ihe written exami- Depositions, 
 nations of witnesses taken by officers of the court, or taken by 
 commissioners specially appointed for the piu'pose, may be 2;iven 
 in evidence in an action at common law, on tlie same matter, 
 between the same parties, or between any who chiim under them, 
 if it can be proved at the time of the trial, that the deponent is 
 dead (l)(m); or, that he cannot be found after strict enquiry (2); 
 or, that he has been subpoenaed, and is unable to attend from 
 sickness (3) (w) ; or, if it can be [)roved, that lie has been kept away 
 by the contrivance of the other [)arty (4); or that he is out of the 
 kingdom, or not amenable to the process of the Court. (5) In 
 either of these cases, depositions are admissible in evidence. 
 But if the witness himself is in a state to be produced, his depo- 
 sitions cannot be received. The party who wishes to have ths 
 benefit of his testimony, ought, if he is able, to bring him forward, • 
 that he may undergo an open examination, in the face of the pub- 
 lic, before the jury and the court: a mode of enquiry generally 
 more conducive than any other to the discovery of truth, (o) 
 
 It is the common practice in the Court of Ciiancery, when an 
 issue or trial at law is directed to make an order, that the deposi- 
 tions of witnesses shall be read in evidence, if it be satisfactorily 
 proved at the time of trial, that they are unable to attend in 
 person. (6) But this order is not made for the purpose of q , . 
 making that admissible in evidence, which is of a nature not rending depo- 
 strictly admissible in courts of common law, but for the conve- 
 nience of the parties. For if depositions are offered at the 
 trial without 'such an order, the whole record, bill, answer, &c. 
 must be proved; but if there is an order for reading the deposi- 
 
 (1) Godb p. t93. pi. 276. and p. Ray. 1166. 1 .\t'v. 44.5. Gilb. Ev. 5-1. 
 826. pi. 418. Fry v. Wood, I Atk. Bull. N. l\ 2.34. 1 Vcs. & Be:iin. 22. 
 Rep. 445. Coker v. Faievvell, 2 P. ^340. Jonss v. Jones, 1 Cox Cas. 13 4. 
 Wins. 563. Gilb. Ev. 54. Bull. N. (4) Bull. N. P. 243. 
 
 P. 239. (5) 1 Atk. Hep 445. Lord Altham 
 
 (2) Vide supra (1). Benson v. Olive, v. Eiirl of Anglesey, tri:il at b ir in K. 
 belore Reynolds C. B. 2 Sir. 920. 15., Gilb Eq. Gas. 16. IS. Rep. 
 
 (3) Lultrell v. Reynel and others, Temp Holt, 736, S. C. 
 
 1 Mod. 283. Adm. per Cur. in Kins- (6) Corbet v. Corbel, 1 V^es. & 
 man v. Crooke, trial at bar, 2 Ld. Beam. 340. 
 
 {/) Sea Note 652, p. 932. (w) See Note 653, p. 933. (n) Sea Nota C54, p. 933. 
 (o) See Note 655, p. 933.
 
 S64 Of Proceedings in Chancery. [Ch. 4. 
 
 Depositions, tions, the court of law will read thetn without going through the 
 regular and strict course, which is generally necessary for the pur- 
 pose of making them evidence. (I)(j5) 
 
 When a witness lias been exanjined on interrogatories, and 
 afterwards becomes interested, the Court of Chancery has allowed 
 his depositions to be read for him, as evidence in his own suit on a 
 bill of revivor. (2) " This," said Lord Hardwicke, "has been 
 allowed on just reason: because his evidence must be taken, as it 
 stood at the time of his examination, which should not be set aside, 
 unless it could be supplied by other evidence." (3) But a differ- 
 ent rule has been established in couits of common law. It was 
 resolved in Tilly's case, by the unanimous opinions of the courts 
 of King's Bench and Common Pleas, that a party to an action of 
 ejectment could not give in evidence his ovv'n depositions, though he 
 had made them at a lime when he was perfectly disinterested. (4) {q) 
 
 Evidenca Depositions are not to be admitted in evidence for a party to the 
 
 azainst whom. •.-. , ^ ^ i- jm c 
 
 " sinl against one who Vvas not a party, nor claims under eitlier ot 
 
 tiic parlies (5) (r) ; nor can they be used by a stranger against 
 one of the parties. {Q){s) An exception has been made in cases, 
 where the question is on the existence of a custom, or on the right 
 to tolls, or where hearsay and reputation would be good evi- 
 dence (7) (i) : in such cases, depositions are admissible in evi- 
 dence, in a suit between other parties, provided they have not been 
 n\Rc]e post litem motam. (u) But if the question at issue is precisely 
 the same in both suits, the depositions in the former suit cannot be 
 admitted. (8) 
 
 On leading Depositions in'a suit, instituted for the purpose of perpetuat- 
 
 qucstions, &c. j^^^ testimony, are not objectionable, on the ground that the in- 
 
 (1) Palmer v. Lord Aylesbury, 15 679. pi. 8. Cooke v. Fountain, 1 
 Ves. 176. Vern. 413. A.s to the general princi- 
 
 (2) Goss V. Tracy, 2 Vern. 699. pie, see ante, ch. 2. s. 1. and 2 Price, 
 
 1 P. VVms. 287. S. C. Haws v. Hand, 434. 
 
 2 Atk. 615. (6) Rushworth v. Countess of Pem- 
 
 (3) In Glyn v. Bank of England, broke and Currier, Hard. 472. Gilb. 
 2 Ves. 42. Ev. 55. 
 
 (4) Tilly's case, 1 Salk. 286. See (7) Bull. N. P. 239. Vide supra, 
 also Holcroft v. Smith, Eq. Cas Ab. p. 243. 
 
 224 ; Baker v. Lord Fairfax, I Sir. (8) Berkeley peerage case, supra, 
 
 101 ; Bull. N. P. 242. p. 243. Freeman v. Phillips, supra, 
 
 (5) Hob. Rep. 155. 2 Roll. Ab. p. 246. 
 
 (p) See Note 656, p. 934. (q) See Note 657, p. 934. (r) See Nore 658, p. 934. 
 («) See Note 659, p. 935. (<) See Note 660, p. 935. (w) See Note 661, p. 935.
 
 Sect. 1.] Of Proceedings in Chancery. 366 
 
 terrogatories, in answer to which they were made, were leading Depositions, 
 interrogatories, and such as could not regularly be put on the ex- 
 amination .of a witness: for the party, against whom the deposi- 
 tions were originally made, had an opportunity of objecting to 
 them, and miglit have applied to have them expunged, instead of 
 which he allowed publication to pass, and the evidence to be exem- 
 plified; the objection, therefore, though it might have been ^taken 
 with effect in the first instance, is too late, after such an acqui- 
 escence by the party. (I) So where interrogatories and cross-inter- From interest- 
 rogatories have been exhibited by the parties to a suit, the answers ^'' w^^sa. 
 of the witness cannot be objected to at the trial, as inadmissible, 
 on the ground that he was interested, and ought to have had a re- 
 lease previous to his examination (2) ; after cross-interrogatories, 
 the objection is too late, (i?) 
 
 When a bill has been dismissed, the rule respecting the admissi- After bill dis- 
 bility of the depositions has been laid down with the following dis- ™'^^^°- 
 tinction. If the bill was dismissed, because the court considered 
 the "matter to be unfit for equity to decree, the depositions may still 
 be given in evidence, provided the subject-matter of the suit was 
 regularly before the court, and within its jurisdiction. (3) (w) But 
 if the suit in equity be dismissed for the irregularity of the com- 
 plainant, it has been eaid that the depositions in that cause cannot 
 be read in any fresh suit. Thus, where a devisee brings a bill of 
 revivor, on a suit commenced by his devisor, and depositions are 
 taken, and then the cause on the hearing is dismissed, on the 
 ground that a devisee, claiming as a purchaser and not by repre- 
 sentation, cannot bring a bill of revivor, the devisee will not be 
 allowed, on exhibiting a new original bill to use the former deposi- 
 tions: for in the first cause, in which the complainant mistook his 
 remedy, there was no complaint regularly before the court, and, 
 consequently, there could not regularly be any depositions. (4) 
 
 If the witness after being examined dc bene esse should die, Before answer 
 before the defendant puts in his answer, his deposition cannot P"* '"* 
 
 (1) Williams v. Williams, 4 M. &. (3) Smith v. Veale, 1 Ld. Raym. 
 S. 497. 735. 
 
 (2) Ogle V. Paleski, Holt, N. P. C. (4) Backhouse v. Middleton and 
 485. 2 Tidd. Pr. 863. others, Chan. Cas. 175. Gilb. Ev. 56. 
 
 (u) See Note 662, p. 935. (w) See Note 663, p. 935.
 
 366 
 
 Of Depositions, Inquisitions, ^c. [Ch. 4. 
 
 Depositions, be read (1), because the opposite party had not the powei- ofcross- 
 exatnination; and the rule of common law is strict, that no evi- 
 dence shall be admitted, but what is or might have been under the 
 examination of both parties. "In such a case," says Ch. B. Gil- 
 bert (2), " the course is to move the Court of Chancery, that the 
 deposition of the deceased witness should be read; and, if the 
 court see cause, they will order it, and this order will bind the 
 parties to assent to the reading of such depositions, though it does 
 not bind the court of nisi prius." 
 
 The reason why depositions are not read in evidence, before the 
 defendant has put in his answer, has been before mentioned to be, 
 because it does not otherwise appear, that the adverse parly had 
 liberty to cross-examine. This reason will not apply, where the 
 defendant is in contempt for refusing to answer. If tiie adverse 
 party, says Ch. B. Gilbert, had been in contempt, then the deix)si- 
 lions of the witnesses shall be admitted, for then it is the fault ol 
 the objector, that he did not cross-examine the witnesses, since he 
 would not join the examination. (3) This subject came before the 
 Court of King's Bench in the case of Cazenove v. Vaughan (4): 
 from which it now appears to be clearly settled, that depositions 
 are not allowed to be read in evidence, before answer put in, or 
 before the party is in contempt, unless he has had an opportunity 
 of cross-examining; but if he has had such an opportunity, and 
 has omitted to avail himself of it, he cannot afterwards make that 
 a ground for objecting to the depositions as evidence.. 
 
 Sect. II. 
 
 Of Depositions. Inquisitions, Examinations, ^-c. ^c 
 
 Depositions DEPOSITIONS are frequently taken with the consent of the 
 
 on interroga- pg^^jgg ^^ g suit, when a material witness is about to leave the 
 
 kingdom, or resides abroad. (5) These depositions may be 
 
 given in evidence, if at the time of the trial the witness has 
 
 (1) V. Browne, Hr.rdr. 315 2-10. And see Marden v. Bound, 1 
 
 Duttou V. Colt, Sir T. Ray. 335- n- Vern. 331. 
 
 Ford V. Guy, cited in Howard v- (3) Gilb. Ev. 56. 
 
 Tremain, 1 Show. 363. Piercy v. (4) 1 Mauie & Seiw. 4. 
 
 , 2 Jon. 165. Bull. N. P. 240. (5) See Ante, p. 14. As to the mode 
 
 (2) Gilb. Ev. 67, 58. Bull, N. P., of taking the examination on interro- 
 
 gatories, See 2 Tidd. Pr. 854.
 
 Sect. 2.] Of Depositions, Inquisitions, ^c. 367 
 
 quitted the country (I) ; and they are admissible in criminal as Depositions, 
 well as in civil cases. (2) But if the trial comes on before his de- ' 
 parture, or after his return, the depositions cannot be read. This 
 rule, however, is not to be taken so strictly, as to make it abso- 
 lutely necessary, that a witness, who is about to go abroad, should 
 be on his voyage, when the trial comes on. If the ship has sailed, 
 though it may have put back — or if the witness be on board, and 
 the ship ready to sail, tiiough prevented by contrary winds — that 
 seems to be sufhcient. (3) But it would not be sufficient to show, 
 that the witness is a seafaring n)an, and that he lately belonged to 
 a vessel lying at a certain place, w-iihout proving that some effort 
 had been recently made to procure his attendance. (4) « 
 
 Where an indictment or information is exhibited in the King's Depositions in 
 Bench for an offence committed in India, or where a suit has been ^"'^'^• 
 commenced in any court in this country for a cause of action 
 arising in India (5), the depositions of witnesses may be obtained 
 under the provisions of the statute 13 G. 3. c. 63. ss. 40. & 44. 
 This statute enacts that the court may award a writ of mandamus 
 to the judges of the courts in India, as the case may require, for 
 the examination of witnesses, who are to be examined publicly in 
 the court, upon oath administered according to the form of their 
 several religions; and these depositions, duly taken and returned, 
 in the form prescribed by the act, are to be allowed and deemed as 
 good and competent evidence, as if the witnesses had been sworn 
 at the trial, and examined viva voce, (6) (x) 
 
 Depositions on the bailment or commitment of persons charged Depositions in 
 with felony, used to be taken in pursuance of the statutes, 1 & 2 ''^^^^ of felony 
 P. & M. c. 13. and 2 & 3 P. & M. c. 10. They are now taken 
 under the statute 7 G. 4. c. 64. which lepeals the two earlier sta- 
 tutes. The second section of st. 7 G. 4. c. 64. enacts, that the 
 two justices of the peace, before tliey shall commit to bail, and 
 
 (1) Anon, case, 2 Salk. 691. (5^ Francisco v. Gilmore, 1 Bos. & 
 
 (2) R. V. Morphew, 2 Maule & Pull. 177. 
 
 Selw. 602. (6) Oiher statutes of a similar na- 
 
 (3) Fonsiclc v. Agar, 6 Esp. N. P. ture are cited in Chap. I. p. 15. 
 C. 92. Ward v. Wells, 1 Taunt 461. 
 
 (4) Falconer v. Hanson, 1 Campb. 
 172. 
 
 (a;) See Note 664, p. 936.
 
 368 Of Depositions^ Inquisilions, ^c. [Cli. 4. 
 
 Depositions, the justice or justices, before the committing to prison, shall take 
 the examination of the person arrested for felony or on suspicion of 
 felony, and the information upon oath of those who shall know the 
 facts and circumstances of the case, and shall put the same, or as 
 much thereof as shall be material, into writing; and such justices 
 and justice respectively shall subscribe all such examinations, in- 
 formations, bailments, and recognizances, and deliver, or cause the 
 same to be delivered to the proper officer of the court in which the 
 trial is to be, before or at the opening of the Court. 
 
 Depositions in The third section of the same statute gives a power of taking 
 case of niisde- . ^ . . - . , i-iii iri 
 
 meanor. inlormatiftis m cases oi misdemeanor, which had not betore been 
 
 given. It enacts, that every justice of the peace, before whom any 
 person shall be taken on a charge of misdemeanor or suspicion 
 thereof, shall take the examination of the person charged, and the 
 information upon oath of those who shall know the facts and cir- 
 cumstances of the case, and shall put the same or as much thereof 
 as shall be material, into writing, before he shall commit to prison, 
 or require bail from the person so charged; and shall subscribe all 
 examinations and informations, and deliver or cause the same to be 
 delivered to the proper officer of the court in which the trial is to 
 be, before or at the opening of the Court, in like manner as in 
 cases of felony, [y) 
 
 Before the statutes of Philip and Mary, a deposition taken before 
 a justice of the county, where a felony was committed, would not 
 have been evidence, even though the witness had died, or was 
 unable to travel. (1) 
 
 The following decisions, which were made with reference to the 
 statutes of Philip and Mary (under which heretofore depositions 
 used to be taken, but which statutes have been repealed by st. 7 
 G. 4. c. 64.), appear to be equally applicable with reference to the 
 repealing statute. 
 
 When BTi 
 dence. 
 
 The deposition of a witness, taken upon oath (2), in the pre- 
 
 (1) ST. R. 710. 722. 
 
 (2) Kelyng. Rep. 2. 1 Hale, P. C. 
 5. 586. 2 Hal. P- C. 52- 120. 284. 
 
 Dalton, Just- c- 111- p. 369. Bull. N. P. 
 242. 
 
 (y) See Note 665, p. 936.
 
 Sect. 2.] Of Depositions, Inquisitions, ^-c. 369 
 
 sence of a prisoner (I), who has been brought before the magis- Depositions^^ 
 trate on a charge of felony, may be given in evidence on the trial 
 of an indictment for the same felony, if it be proved on oath, to the 
 satisfaction of the Court, that the informant is dead (2),(z) or 
 prevented by sickness from attending (3), (a) or that he is kept 
 away by the means and contrivance of the prisoner(4); provided 
 also, that the deposition, offered in evidence, is proved to be ihe 
 same as was sworn before the justice, wiihout any alteration. (5) 
 
 The deposition? ought to be taken as nearly as possible in the How taken, 
 words used by the deponent; the statute requiring the magistrate 
 to take the information of those who bring the prisoner, and put 
 the same, or as much thereof as shall be material, in writing. It 
 has been before observed, that the information should be taken 
 in the presence of the prisoner, to give him an opportunity of 
 cross-examining. (6) The prisoner is usually allowed to be present 
 from the commencement of the examination; but in case any 
 part of the information has been taken while he was not present, 
 it will be necessary to iiave that part afterwards read over dis- 
 tinctly in the presence of the prisoner and the deponent; and if 
 the deponent then swear to the truth of the statement in the pris- 
 oner's presence, this will be a regular taking of the information, 
 and the deposition may be used against the prisoner. (6)(c) 
 
 The new act requires the justices or justice to subscribe the Signing, 
 examinations and informations; and the coroner to subscribe the 
 evidence given before him, which is to be put in writing. 
 
 It is not essential to the validity of depositions, that they 
 
 (1) R. V. Payne, 5 Mod 163, cited P. C. 52, 283. Kel. 55, the case of 
 by Ld. Kenyon, 3 T. R. 723. Wood- depositions before a coroner. Gilb 
 cock's case, 2 Leach, Cr. C. 566. R. Ev. 124, and see infra, p. 372. 
 
 V. Vipont, 2 Burr. 1163. R. v. Din- (4) Kel. 55. Post. Disc. p. 337. 
 gler. Leach, Cr. C. 633. Harrison's case, 4 St. Tr. 492. Vide 
 
 (2) 4lh Res. in Ld. Morley's case, infra, p. 372. 
 
 Kel. 55. Bromwich's case, 1 Lev. 180. (5) 1 Hal. P. C. 305. 2 Hal. P. C. 
 
 Dalt. c. 111. p. 369. Adm. per Cur. 52,284. Kel. 55. 
 
 in Payne's case, 1 Salk. 281. 1 Hal. (6) R. v. Smith, 2 Starkie, N. P. C. 
 
 P. C. 305. Bull. N. P. 242. Case of 203. Holt, 614. S. C. Russ. & Ry. 
 
 Fleming and Windham, 2 Leach, Cr. Cr. C. 339. S. C. It appears also, 
 
 C. 996. Westbeer's case, 1 Leach, from the ease of the King v. Crow- 
 
 Cr. C. 14, (in which case the deposi- ther, 1 T. R. 125, thai the witness 
 
 tions wore those of a deceased accom- should bo re-sworn in the presence of 
 
 plica.) the prisoner. 
 
 (3) 1 Hal. P. C. 305, 5S6. 2 Hal. 
 
 (z) See Note 666, p. 937. (a) See Note 667, p. 938. (6) See Note 663, p. 938. 
 (c) See Note 669, p. 938. 
 
 Vol. I. 47
 
 370 
 
 Of Depositions, fnquisitions, ^c. [Ch. 4. 
 
 Depositions, should be signed by the deceased witness. In Flemming's case, 
 on an indictment for a rape, all the Judges concurred in opinion, 
 that the depositions of a girl deceased, on whose person the crime 
 had been committed, taken on oath by the committing magistrate, 
 had been properly admitted in evidence at the trial, though the 
 depositions were not signed by the deceased. (l)(rf) 
 
 The inforiiiaiions against the prisoner are to be taken on oath; 
 the examination of the prisoner, not upon oaih. (2) (c) And parol 
 evidence, to add to, or vary ihe de|)OsiiIon, is not admissible. (3) (/) 
 
 Tile information of a witness, taken before justices of the peace 
 on a charge of misdemeanor, may now be given in evidence on the 
 trial of that misdemeanor, under the provisions of the new act be- 
 fore referred to; but informations taken by justices are not evi- 
 dence in civil actions, or on an appeal for murder (4), or on trials 
 for high treason. (5). The information of a person complaining of 
 an assault and robbery, has been held to be admissible, on a trial 
 lor the murder of that person, who died of the wounds received in 
 the assault. {Q){g) 
 
 Petty treason. Qn a charge of petty treason, infoiniations, taken before a 
 justice or coroner, seem to be admissible in evidence; for the 
 offence of petty treason is substantially the same as the offence of 
 murder. (7) But as the statute of 5 & 6 Edw. 6. c. 11. s. 12. 
 requires the evidence of two lawful accusers in petty treason, no 
 less than high treason, to warrant a conviction of the party 
 accused (8), it is plain, that a conviction of petty treason cannot 
 be grounded on such an inforuiaiion alone. (9) However, as a 
 prisoner may be convicted of rnunler on an indictment for petty 
 treason, depositions taken before a coroner, or informations taken 
 on oath before justices of the peace, pursuant to the statute, are 
 sufficient without any other evidence, to support a conviction of 
 
 On oath. 
 
 Parol evi- 
 dence. 
 
 Evidence in 
 misdemean- 
 ors. 
 
 Not in civil 
 cases, or high 
 treason. 
 
 (1) Case of Flenijtjg ami Wind- 
 hatn, 2 Leach, Cr. C. 996. 
 
 (2) Vide supra, p. 113 
 
 (3) R. V. Thornton, Warw. Sum- 
 mer Ass. 1817, by Ilolroyd J, and 
 see R. Smith, supra, p. 114. 
 
 (4) R. V. Payne, 1 Ld. Raym. 729 
 
 (5) Post. Disc. 336. 1 Hale, 306. 
 
 (6) It. V Smith, Rhss. & Ry. Cr. 
 C 3 !0. li. This was decided against 
 the o, inion of Lord Tenterden: and 
 the question aroso under the stat oF 
 Philip and ;Mary. 
 
 (7) See Foster, 336. 
 iS) Vide supra, p. 152. 
 {')) Foster, 337. 
 
 ((i) Seo Note 670, p 939. (e) Sea Not g 671, p. 939. (/) See Note 672, p. 939. 
 (ff) See Note 673, p. 939.
 
 Sect. 2.] Of IJej)ositio7is, Inquisitions, ^c. 571 
 
 murder, tliougii not sufficient Id support a conviction of petty Depositions. 
 treason. (1) 
 
 It often happens liiat iho felon is taken and examined by a Deposition, 
 
 I .1 cp . -..J taken in an- 
 
 magistrate ni a county, xvhere the offence was not committed; Qji^gjj.o^jjj„ 
 in such a case, tlie examinations and informations are to be 
 transmitted into the county where the felon is indicted, and inay 
 there be read in evidence against him, though the magistrate had 
 not original cognizance of the offence. (2) (k) 
 
 As informations, vvhen judicially and regularly takeii, are evi- Deposition, to 
 
 , . . .~..~ I'lr i'i contradict 
 
 dence agamst a prisoner, it the mformant dies betore the trial; witness, 
 so, on the other hand, where the informant himself gives evi- 
 dence, tiie informations may be used for the purpose of contradict- 
 ing his testimony, (i) One of the objects of the legislature in 
 passing the statutes, was to enable the judge and jury, before 
 whom the prisoner is tried, to see whether the witnesses at the 
 trial are consistent -r. ith the account given by them before the 
 committing magistrate. (3) It was admitted in Lord Stafford's 
 case (4), that the deposition of a witness, taken before a justice of 
 the peace, might be read, at the desire of the prisoner, in order to 
 take off the credit of the witness, by showing a variance between 
 the deposition and the evidence given in court viva voce. And it 
 very commonly happens that judges point out such discrepancies 
 to the notice of the jury. (5) 
 
 The 4lh section of the? G. 4. c.64. enacts, that every coroner, Depositions 
 upon any inquisition before him taken, whereby any person shall ner. 
 be indicted for manslaughter or murder, or as an accessary to 
 murder before the act, shall put in writing the evidence given to 
 the jury before him, or as much thereof as shall be material; and 
 shall certify and subscribe the same evidence, and also the in- 
 
 <1) Radbourne's case, 2 Leach, Cr. Tr. 834 — 83S. Dr- Sheriden's case- — By 
 
 C. 512. Fost. Disc. 106, 328, .S37. the law of Scotland, the deposition of a 
 
 (2) Dalt. Just. c. 111. p. 3(}9. 2 witness cannot be produced at the trial 
 Hal. P. C. 28.5. Cro. Car. '..la. And to di.scredit iiis testimony. See Hume's 
 see St. 44 G. 3. c 92. Commentary on the Criin. Law of Scot- 
 
 (3) See the judgment in Lamhe's land, vol. ii. p 367, and Ijnrnett'.s Trea- 
 case, 2 Leach, Cr. C. 633. lise, p. 464. 
 
 (4)3St. Tr. p. 131. Hawk. V. C. (5) See Olroyd's case, supra, p. 310. 
 
 b. 2. c. 46. s. 22. See 31 Howell's S't. 
 
 (A) See Note (574, p 940. (t) Sec Note 675, p. 940.
 
 372 
 
 Of Depositions, Inijuisitions, <,^c. [Ch. 4. 
 
 Depositions, qnisition before him taken, and shall deliver the same to the 
 proper officer of the Court in which the trial is to be, before or at 
 the opening of the Court. 
 
 When evi- 
 dence. 
 
 Depositions in 
 absence of 
 prisoner. 
 
 It has been held, in the construction of the statute of Philip & 
 Mary, under which depositions before coroners used to be taken, 
 (and the same decisions seem to apply equally to cases under the 
 new statute, above cited,) that in case any of the witnesses, who 
 have been exanriined before the coroner, are dead, or kept out ot 
 the way by the means and contrivance of the prisoner, or unable 
 to attend frou) sickness (1), their dejiositions may be read on the 
 trial of the prisoner; provided also, that the deposition, offered in 
 evidence, is proved to be the same as was sworn before the coroner, 
 without any addition or alteration. 
 
 It seems to be the general opinion, that the depositions taken 
 by the coroner are admissible, though taken not in the presence of 
 the person against whom they are tendered in evidence. With 
 regard to depositions taken before justices, in the absence of the 
 person charged, it is settled, that they are not admissible in evi- 
 dence against him afterwards on his trial, (j) The statute of Philip 
 & Mary, which first required justices to take examinations (and 
 under which the examinations have been adjudged to be admis- 
 sible in evidence), implies, that the person accused is present at 
 the time of the enquiry; the words of the statute being, "that 
 he shall take the examination of the prisoner, and the information 
 of those that bring him:''^ and a similar provision is contained in 
 the act recently passed. But in the statute of Philip &, Mary, 
 respecting the duties of the coroner, there is nothing from which 
 such an inference can be made; for that statute only requires 
 the coroner " to put in writing the evidence given to the jury before 
 him, and certify the same evidence at or before the time of the trial.'''' 
 Nothing is here said, as in the former case, respecting the 
 taking of the examination of the prisoner: if there had been 
 such a requisition, it could seldomi be carried into effect; for the 
 inquisition must be super visum corporus, that is, necessarily 
 within a limited period; and it very commonly happens, that 
 
 (1) So held bv all the Judges in Loid 12 Howell's St. Tr. 851; 2 Hale P. C. 
 Morten's case, Kel. 55. 6 Howell's 284. Gilb. Ev. 124. 
 St. Tr. 770, 776. S. C. Harri^son's case. 
 
 (» See Note 676, p. 940.
 
 Sect. 2.] Of Depositions, Inquisitions, ^c. 373 
 
 the person who did the act is unknown, or, if known, that lie con- Depositioni. 
 trives to escape before the inquisition is held. Tiie question as 
 to the admissibihty of depositions, taken before the coroner in the 
 absence of the prisoner, must depend principally upon this, 
 whether they can regularly be taken in his absence; and, consid- 
 ering the difference of the provision in the one statute from that in 
 the other, it appears to be as regular, generally speaking, for the 
 coroner to take the evidence in the absence of the prisoner, as it is 
 for the justice to take the informations in his presence. 
 
 The following references may be cited in favour of the admissi- Authorities, 
 bility of such evidence. A book of authority (1), after stating the 
 general rule, that depositions are not evidence, where there cannot 
 be a cross-examination, adds, by way of exception "yet, if the 
 witnesses, examined on a coroner^s inquest, be dead or beyond sea, 
 their depositions may be read; for the coroner is an officer appoint- 
 ed on behalf of the public, to make enquiry about the matters 
 within his jurisdiction. '' In the case of the King against the In- 
 habitants of Erisvvell(4), Mr. Justice Buller, in support of his 
 opinion on the case then before the Court, stated, that depositions 
 before a coroner had long been settled to be good evidence, though 
 the person accused be not present when they are taken, nor ever 
 heard of them till the moment when they are produced against him: 
 and Lord Kenyon observed, that the case alluded to was an ex- 
 ception, founded on the statute of Philip & Mary (3): " besides," 
 he added, " the examination before the coroner is an inquest of 
 office: it is a transaction of notriety, to which every person has a 
 right of access; and writs of ad quod damnum have been frequently 
 set aside, for want of this notoriety in the execution of them by the 
 sherifi." In Harrison's case, a deposition was admitted, which ap- 
 pears to have been taken in the absence of the prisoner (4) : and in 
 the case of King v. Purefoy, a deposition was admitted under 
 similar circumstances, after an objection taken by the counsel for 
 the prisoner. (5) (A;) 
 
 (1) Bull. N. p. 242. prisoner as being at that time in New- 
 
 (2)^3 T. R. 713. Vide infra, p. 376. gate: and it may be inferred from the 
 
 (3) 3 T. R. 722. first that he was not present. 
 
 (4) 12 St. Tr. 853, Sim. 23. There (5) Before Hotham B. Maidstone 
 were ^two depositions in this case. Sum. Ass. 1794. Peake, Ev 68. 
 The second deposition describes the 
 
 (fe) See Note 677, p. 9i0.
 
 374 Of Depositions, Inquisitions, ^c. [Ch. 4. 
 
 Inquisition by All inquisition of/eZo de se, taken before the coroner super visum 
 corporis^ is considered by Lord Coke to be conclusive evidence of 
 the fact against the executors or adniinistrators of the deceased (1) 
 But Lord Hale, in his Pleas of the Crown (2), is of a different 
 opinion, justly conceiving it unreasonable that they should be con- 
 cluded, and lose the goods of the deceased without an answer, by 
 an inquisition which may be taken by the coroner behind their 
 backs. And it is now settled that such an iuqui^iition may be 
 removed into the King's Bench, and traversed by the executors 
 and administrators of the deceased. (3) If it be found by the 
 coroner's inquisition, in case of the deatli of one who is not/e/o de 
 se, that the person who committed the offence, fled for it, the 
 authorities hold this finding to be conclusive and not traversable; 
 yet, upon principle, it seems that the one case is as properly trav- 
 ersable as the other. (4) 
 
 escheat"" °^ There are various other kinds of inquisition of office, which, if 
 regularly taken, and under a com])etent authority, will be admit- 
 ted by courts of law, as evidence of the facts there found. Some 
 inquisitions are taken on an enquiry made by the sheriff, or coroner 
 or escheator, by virtue of their office, or under a writ directed to 
 them for that purpose: others are taken by commissioners, 
 especially appointed to examine witnesses on oath, and enquire 
 into the several matters specified. These inquisitions are evidence 
 of the facts there found, even against third persons. An inquisi- 
 tion of escheat, for instance, is evidence, in any suit and between 
 any parties, that the person, who was the subject of enquiry, died 
 without issue, as the commissioners have stated. This kind of 
 inquisition is presented on the oath of a jury, and is a formal and 
 solemn finding of the several facts. The escheators are bound to 
 meet in a public and open place; and every person is to be allow- 
 • ed to give evidence openly in their presence. (5) (/) 
 
 (1) 3 Inst 55. (5) St. I H. S. c. S An account of 
 
 (2) 1 PI. Cr. 416. 1 East, I'. C. these inquisitions, post mortem, may 
 889. be seen in the Report of the proceedings 
 
 (3) See 1 Saund. 362, note 1, by of Commissioners of Public Rec- 
 the Editor, who has there collected ords. Append. (F. 1.) p. 63. An ac- 
 the cases on this subject. As to the count also of inquisitions ad quod 
 duty of the coroner in taking an in- damnum may be seen in the same 
 quest, see stat. I H. 8. c 8. Report, App. (F. 2 ) 
 
 (4) See n. (3), and Hawk. b. 2. c. 9. 
 i. 54. 
 
 (0 See Note 678, p. 941.
 
 Sect. 2.] Of Depositions^ Inquisitions, ^c. 375 
 
 On an inquisition also iincJer a writ of extent, as to the effects, Inquisition. 
 in possession of a party, a person rlaiming property in the effects, inquisition on 
 which are the subject of enquiry, may put questions to the wit- ^v""'' "^^ extent, 
 nesses examined on the part of the prosecutor; and if the sheriff 
 refuse to allow such questions, the inquisition will be irregular, and 
 the extent may on this grotuid be set aside. (1) (m) 
 
 An inquisition of lunacy is evidence on the trial of an indict- I"q"'sition of 
 menl, to show that the prisoner was insane, when he committed 
 the offence. (2) Such inquisitions are evidence even against third 
 persons, who were strangers to the proceeding. Thus, in a case, 
 where an inquisition of lunacy was offered as evidence to affect the 
 rights of third persons, and objected against as res inter alios acta. 
 Lord Hardwicke over-ruled the objection, and said, that inquisi- 
 tions of lunacy, and likewise other inquisitions, as post mortem, &c., 
 are always admitted to be read, but not conclusive. (3) And in an 
 action upon a bond against the executors of the obligor, an inquisi- 
 tion of lunacy has been adiDitted, under tlie plea of non est factum, 
 for the purpose of showing, that the obligor had been a lunatic 
 from a certain lime, as found by the inquisition. (4) (n) 
 
 An inquisition taken by vir'ue of a commission, which issued in By warrant of 
 
 the reign of Queen Elizabeth, under ilie seal of the Court of Ex- chequer. 
 
 chequer, to commissioners to inquire, whether a Prior was seised 
 
 of certain lands as parcel of a manor, or whether the crown was 
 
 seised of them after the dissolution of the priory, was adjudged to 
 
 be good evidence of those facts. (5) And an inquisition, taken un- By order of 
 
 der an order of the House of Commons, is evidence respectingthe l^^^^^ °^ 
 . 1 o Commons. 
 
 fees of certain officers. (6)(o) 
 
 Inquisitions, which are exlraiudicial, are not admissible in evi- ^"^1"'^"'°" ^y 
 
 riM • • • • II r -r ■, • r Sheriff', as to 
 
 dence. Ihus an inquisition made by a sheriff 's jury, for the pur- property, 
 pose of ascertaining, who was eniiiled to the property of goods 
 taken under an execution, seems not to be admissible evidence even 
 
 (1) R. V. Bickley, 3 Trice, 454. cutors of Jervoise, 3 Campb. 126, be- 
 
 (2) R- V. Bov\ler, O. B. June, 1812, fore Lord Eiienborough C. J. 
 
 before Le Blanc J. and Lord Ch. J. (5) Tooker v. Duke of Beaufort, 
 
 Gibl)s. 1 Burr, 146. Sayer, 297. S. C. 
 
 (3) Sergcson v. Sealey, 2 Alk. 412. («) Green v- Hewit, Peake, N. P. C. 
 
 (4) Faulder v. Silk and another, exe- 184. 
 
 (m) See Note 679, p. 94L (n) See Note 680, p. 942. (o) See Note 631, p. 642.
 
 376 Of Depositions, Inquisitions, ^c. [Ch. 4. 
 
 Examination, against the sheriff, in an action of trover brought by the party, in 
 whose favour the inquisition was found. (1) Tliis evidence was 
 received at the trial of the cause by Mr. Justice Duller, who admit- 
 Not concln- ted ir, but held it not to be conclusive; and a verdict having been 
 ■'^®- found for the defendants, a motion was afterwards made for a new 
 
 trial, on the ground, that the inquisition was conclusive evidence 
 in favour of the plaintiff, as against the person who contested the 
 property with the plaintiff, and who was present at the time of 
 taking the inquisition. But the Court refused the appHcation. Ch. 
 J Eyre said, he doubted whether a sheriff can, strictly speaking, 
 hold any inquisition as to property, except under a vi^rit de proprie- 
 tate probanda in replevin. And Mr. Justice BuUer said, he thought 
 he ought not to have admitted the evidence at the trial, as the 
 Not eYidence. inquisition was not under the king's writ, but merely a proceeding 
 by the sheriff on his own authority, (p) 
 
 Examination ^j^g general rule, respecting the admissibility of depositions after 
 to settlement, the death of the witness, is, that they are not evidence, unless they 
 have been taken judicially, and unless the party, whose interests 
 would be affected by them, had an opportunity of being present 
 and cross-examining the deponent, {q) It is therefore now clearly 
 established, that the ex parte examination of a pauper concerning 
 his settlement, taken on oath before magistrates, is not admissible, 
 upon a question of settlement, as evidence against the appellant 
 parish. (2) (r) The objection against their admissibility is, not 
 that the magistrates have no power to administer an oath, but that 
 the examination is ex parte, obtained at the instance of overseers, 
 whose parish would be benefitted by the removal, and behind the 
 backs of the appellants, who received no notice of the proceeding, 
 and had not the benefit of a cross-examination (3); and there are 
 no words (under which paupers in the statute 13 & 14 C. 2. c. 12. 
 are removed,) expressly requiring the justices to take down any 
 examination in writing. 
 
 (1) Latkow V. Earner and Barnett, (2) R. v. Nuneliam Courtenay, 
 
 Sheriff of Middlesex, 2 H. Black. 437. 1 East, 373. R. v. Ferry Frystone, 2 
 
 Glossop V. Poole, 3 Malue & Selw. East, 54. R. v. Abergwilly, ib. 63. 
 
 176. (3) See R. v. Erisweil, 3 T. R. 725. 
 
 {p) See Note 682, p. 943- {q) See Note 683, p. 943. (r) See Note 684, p. 944.
 
 Sect. 2.] Of Dtyosilmixsy Inquisitions ^ ^'C. 377 
 
 In the muliiiy act there is a special provision as to the exaniina- E^aro'nation. 
 tion of a soldier, respecting his settlement. This statute authorises Examination 
 any justice of the peace for the county, town or place, where any ° ^° '^'^' 
 soldier shall be quartered, in case he has either wife or child, to 
 cause him to he suma)oned before him in the place where he is 
 quartered, in order to make oath of the place of his last legal set- 
 tlement. And such justice is required to take his examination in 
 writing, and give an attested copy of the examination to the per- 
 son examined, to be by him delivered to his commanding officer, in 
 order to be produced when required; which said examination and 
 allesled copy shall be at any time admitted in evidence as to such 
 last legal settlement at any general quarter sessions of the peace, 
 although the person examined be dead or absent from Ihe king- 
 dom. (1) 
 
 The examination of a single woman before a magistrate, under Examination 
 , , . .in case of 
 
 the statute o O. 2, c. Jl, (which enacts, that, in case any single bastardy. 
 
 woman shall, in an examination to be taken in writing upon oath 
 before any justice, &c., charge any person with having gotten 
 her with child, it may be lawful for the justice to issue his warrant 
 for the immediate apprehension of such person, &c.) will be evidence 
 after the woman's death against the reputed father, on his appear- 
 ance at the sessions to abide the order of the court according to 
 his recognizance, although he was not present at her examina- 
 tion. (2) (s) 
 
 A justice of the peace is empowered, hyst. 59 G. 3, c. 12, s. 2S, Examination 
 ..... . . - , . .- ofprisoueri, 
 
 to take in writing the examination ot any person having a wile or as to settle- 
 child, who is a prisoner in a gaol, or house of correction, oi in "i^"' 
 
 (1) 3G. 4, c. 13, s. 70, and 7 G. 4, (2) R. v. Ilavenslone, 5 T. R. .37:]. 
 c. 10. The first mutiny act wliich " The examination." (the Court is re- 
 made such examinations admissible, ported to have said,) " having been tak- 
 was the 55 G. 3, c. 108, s. 70. That en before a mngistiate, in the course of a 
 act did not contain the clause as to the judici I proceeding, under st 6 G. 2, 
 original examination being admitted, c. .31, is certainly admissible evidence, 
 nor the other clause which makes the like the depositions tiiken under the stat. 
 examination admissible in case of the of Philip and Mary." (I & 2 Ph. & 
 examinant's death, or absence from the M c. 13) It is presumed, thai the 
 kingdom. But the adiriissibility of such Court referred to the 5ih seciion of that 
 evidence was determined in R. v. War- statute, respecting Coroners. For ex- 
 ley, 6 T. R. 534, and R. v. Warminster, nminations taken by justices are not ad- 
 S Barn. & Aid. 121, and afterwards ex- missible against a prisoner who was not 
 pressly sanctioned by the mutiny act of present. 
 » G. 4, c. 13, 9. 70. 
 
 (s) See Note 685, p. 914. 
 
 Vol. I. 4S
 
 378 0/ Depositions, Inquisitions, i^c. [Ch. 4. 
 
 Examination. jIjq custody of the keeper of a gaol or liouse of correction, or in 
 the custody of any peace officer under a warrant of commitment, 
 touching the place of his or her last legal settlement; and such 
 examination is to be signed by the justice, and shall be received 
 and admitted in evidence as to such settlement before any justices, 
 for the purpose of any order of removal, so long as the person so 
 examined shall continue a prisoner. 
 
 Depositions in Depositions taken in an ecclesiastical court, in a cause within its 
 courts. jurisdiction, seem to be admissible in evidence upon the same foot- 
 
 ing as depositions in the Court of Chancery, the parties being the 
 same, and having had an opportunity of cross-examining the de- 
 ponents. Chief Baron Gilbert lays down the rule thus: (1) 
 " Depositions taken in the spiritual court in a cause relating to 
 lands cannot be read, because they are no oaths at all, inasmuch 
 as the spiritual courts have no authority to take depositions relating 
 to lands: but it seems they may be read, when taken in a cause in 
 which they have authority, as far as. relates to that cause, inas- 
 much as these are lawfid oaths, and a man may be indicted for the 
 violation of them, tliough they be not oaths in a court of record." 
 It does not appear, in any of the cases above mentioned, to have 
 been thought essential to the admissibility of depositions, that they 
 should be made in courts of record; but the material consideration 
 was, whether they were taken judicially, and whether the other 
 party, against whom they were olTered in evidence, had any oppor- 
 tunity of cross-examining the deponent. There are some authori- 
 ties, which hold, that depositions of witnesses in an ecclesiastical 
 court are not to be admitted in courts of common law; (2) and one 
 book of authority lays it down as a general rule, that depositions, 
 taken in a court not of record, shall not be allowed in evidence 
 elsev\here. (3) However, the better opinion seems to be, that such 
 depositions are admissible in evidence, under the limitations above 
 stated, (t) 
 
 Depositions Upon the principle above stated, Lord Holt was of opinion, 
 
 missionersof '" '^^^ case of Breedon v. Gill, (4) that depositions before com- 
 
 excise. 
 
 (1) Gilb. Ev. 60. (3) Bull. N. P. 242. 
 
 (2) Earl of Sarurn v- Sir B. Spencer, (4) 1 Ld. Raym. 219, 222. 
 2 Roll. Abr. 679, pi- 6. Litt. Rep. 
 
 167. March, Rep. 130. 
 
 (0 See Note 686, p. 944.
 
 Sect. 2.] Of Depositions, Inquisitions, ^e. 379 
 
 missioners of excise, (who by the statute 12 Car. 2, c. 24, s. 45, Examination, 
 have a power to administer oaths on enquiring into forfeitures,) 
 taken in."the presence of the other party, and signed by the wit- 
 ness, would be admissible on an appeal from the sentence of the 
 commissioners, in case the witness should be dead at the time of 
 hearing the appeal. 
 
 The affidavit of a person may be read against him, in a suit in Affidavit. 
 which he is party, as an admission by him; (u) or may be used 
 against him, in a cause in which he is witness, for the purpose of 
 contradicting his testimony, (v) If the affidavit is filed as matter of Filed, 
 record, the contents may be proved, in either of the cases just men- 
 tioned, by an examined copy, (as matters of record are usually 
 proved;) after which there must be some proof, to show that the 
 contents of the document are the statement of the individual against 
 whom they are tendered in evidence. Proof that the original 
 bears the handwriting and signature of that individual, will be suf- 
 ficient for this purpose; or if he has admitted that he signed the 
 original, that would be sufficient. Thus proved, the contents may 
 be given in evidence, as an admission or statement; but not as an 
 affidavit, or representation on the oath of the individual, without 
 some additional positive proof of his having been sworn to its truth. 
 If it is tendered in evidence against a witness, and he admits that 
 he swore to its contents, this will be sufficient proof of the oath, for 
 the purpose of contradicting him. (w) 
 
 If the affidavit has not been filed on record, it should be pro- Not filed, 
 duced and proved by competent evidence to be the representation 
 of the individual, as in the former case. If it has been lost or 
 destroyed, so as not to admit of being produced, there appears to be 
 no objection against receiving secondary evidence of its contents, as 
 in other instances of non-existing documents. 
 
 If an affidavit be made in any cause, proof of such cause Proofofswear- 
 depending, and that such affidavit was used by the party, would 
 perhaps be sufficient proof of its being sworn even on an indict- 
 ment for perjury, and certainly would be evidence in a civil suit. (I) 
 
 (1) Bull. N. P. 2.S8. 
 
 (tt) See Note 687, p. 944. (t;) See Note 688, p. 944. (w) See Note 689, p. 944.
 
 S80 
 
 Award . 
 
 Jadgments 
 
 inferior 
 
 courts. 
 
 of 
 
 Antrd. 
 
 OJ Deposiiions, Inquisitions, ^c. [Ch. 4. 
 
 In an action against the defendant in tlie Common Pleas, for ma- 
 liciously arresting the plainiifT in a cause in the same court, it ap- 
 peared tliat the plaintifl' had obtained a rule to set aside the arrest 
 in that cause, and the defendant in opposing this rule had made an 
 affidavit, the arrest was set aside, and the plaintiff paid the expense 
 of obtaining his discharge; this affidavit was admitted in evidence 
 against the defendant, without proof of his signature, or of his being 
 sworn; and, in an argument on a special case, the objection taken 
 at the trial against the admissibility was at once abandoned by the 
 defendant's counsel. (I) (a-) 
 
 Judgments in a court baron, county court, or hundred court, and 
 the judgments of any other inferior court (y) recognised by the 
 law of the land, (2) are evidence (z) between the same parties, (a) 
 upon the same points in issue, on matters within their jurisdiction. 
 Thus, in an action of debt on a judgment recovered in an inferior 
 court, the judgment will be evidence of the debt; but the defendant 
 may show, if he can, that the cause of action was not within the 
 jurisdiction of the court below. (3) (6) 
 
 An award, regularly made by an arbitrator, to whom matters in 
 difference are referred, is conclusive, in an action at law, on the parties 
 to the reference, upon all matters enquired into within the submis- 
 sion. (4) (c) What has been before said on the subject of judgments 
 by a court of concurrent jurisdiction, may be said also of awards, that 
 they are, as a plea, a bar, or, as evidence, conclusive between the 
 same parlies, upon the same matter directly in question. (5) (J) 
 Thus, in an action of ejectment, where the defendant and the lessor 
 of the plaintiff had before referred to an arbitrator their respective 
 claims to the property in question, the Court of King's Bench held, 
 that the party had by his agreement concluded himself from dis- 
 puting the lessor's title. (6) (e) It has been before observed, that 
 an award is not a bar to any cause of action which the one party 
 had against the other at the liine of the reference, if it appear 
 
 (1) Cameron v.] Lighlfoot, 2 Black. (5) See iinte, p. 321; and Camp- 
 Rep. 1191. bell V. Tvvenilow, 1 Price, 81; and 
 
 (2) Com. Dig. tit. Evidence, (C. 1.) R. v. Cotton, 3 Campb 444. 
 
 (3) Herbert v. Cook, reported in (6) Doe, dem. Morris v. Rosser , 
 note (a), VVilles, Rep. 36. 3 Cast, 15. 
 
 (4) See ante, p 334. 
 
 (x) See Note 690, p. 94.3. (v) See Note 691, p. 945. (2) See Note 692, p. 946. 
 la) See Note 693, p. 972. (b) See Note 694, p. 987. (c) S«e Note 695, p. 1025. 
 (d) See Note 696, p. 103R. (e.) Ssp Note 697, p. 1037.
 
 Sect. 2.] Of Depositions, Inquisitions, ^c. 381 
 
 that the subject matter of the action was not enquired into before Certificate, 
 the arbitrator. (1) (/) 
 
 Certificates of conviction are made evidence in several cases, Certificates. 
 by the express provisions of the legislature. On the trial of a pros- 
 ecution, for a second offence in uttering counterfeit money, a certi- 
 fied transcript of a former conviction, by the clerk of the assize or 
 clerk of the peace, containing in a few words the effect and tenor Of conviction, 
 of the conviction, is sufficient proof of the former conviction. (2) 
 On a prosecution, also, of a felon, for being at large unlawfully 
 before the expiration of his term of transportation, a certified trans- 
 cript of the indictment, of the conviction of the felon, and of the 
 order for transportation, has been made sufficient ppiof, that the 
 person, there named, has been before convicted, and ordered for 
 transportation. (3) {g) 
 
 The certificate of a vice-consul has been compared to a foreign Of vice-consul, 
 judgment. But the vice-consul is not, properly speaking, a judi- 
 cial officer; nor is his certificate to be admitted as evidence of the 
 fact there stated. In the case of Waldron v. Coombe,(4) the 
 Court of Common Pleas determined, that the certificate of a Brit- 
 ish vice-consul in a foreign country could not be received here as 
 evidence of the amount of a sale, although by the law of that 
 country he was constituted general agent for all absent owners of 
 goods, and was authorized and compelled to make the sale in 
 question. 
 
 A certificate of the king, imder bis sign manual, has been By the crown, 
 admitted in an old case, as evidence of a fact, in a suit on a 
 promise of marriage;(5) the report states, that the certificate 
 was allowed the proof without exception. But it is laid down in 
 RoUe's Abridgment, (6) " that the king, as it seems, cannot be 
 
 (I) Ravee v. Farmer, 4 T. R. 146, are made evidence, may be seen in vol. 
 
 ante, p. 334. i. of Russell's Treat, on Crimes, b. 2, 
 
 (2j St. 15 G. 2, c. 28, a. 9. The ch. 36. 
 St. 34, 35 H. 8, c. 14, contains provi- (4) 3 Taunt. 162 Roberts v. Ed- 
 
 Bions respecting the transmitting of certi- dington, 4 Esp. N. P. C- 88. R. v. 
 
 ficates of outlawries, convictions, and Vyse, Forrest, 35. 
 
 attainders, into the court of K. B., by (5) Abignye v. Clifton, Hob. Rep. 
 
 clerks of assize, &c. St. 3 VV. & M. 213. See 3 Woodeson, Lect. 275. 
 c 9, 3. 7, relates to certificates of pris- (6) 2 Roll. Ab. 686, (H.) Art. 1, 
 
 oners having hud benefit of clergy. citing the case of Abignye v. Clifton, 
 
 (3) St. 6 G. l,c. 23, 8. 6. Several contra, 
 other cases, in which similar transcripts 
 
 (/ ) See Note 69vS, p. 1040. (g) See Note 699, p! 1042.
 
 382 
 
 Of Depositions^ Inquisitions, ^c. [Ch. 4. 
 
 Certificate. 
 
 witness in a cause, by letters under his sign manual." And Lord 
 Ch. Justice Willes, in his judgment in the case of Omichund v. 
 Barker, (1) says, referring to this case in Hobart, " Even the cer- 
 tificate of the king, under his sign manual, of a matter of fact, has 
 been always refused, except in one old case in Chancery." 
 
 it war. 
 
 Of minister. A certificate under the seal of a minister abroad, as to the fact 
 
 of a marriage having been solemnized before him, was admitted 
 also in an old case; (2) (h) but the admissibility of such evidence 
 has been questioned; (3) and it cannot be doubted, but that the 
 
 Of secretary evidence would now be rejected. A certificate from the secretary 
 at war, as to the nature of the station of a sergeant in the army, 
 is said to have been admitted, though opposed, in the case of Lloyd 
 V. Woodal; (4) but for what reason, or upon what principle is not 
 stated, (i) The general rule is, that our law never allows a certifi- 
 cate of a mere matter of fact, not coupled with any matter of law, 
 to be admitted as evidence. (5) (j) 
 
 Of justices. 
 
 Of enrolment. 
 
 Protest. 
 
 A certificate of justices, certifying that a highway, which is the 
 subject of an indictment, is in a state of repair, is admitted, in com- 
 mon practice, as an adjudication of the state of repair, after a plea 
 of guilty pleaded by the parish. (6) (k) A certificate of the enrol- 
 ment of a fine is evidence of the enrolment, for the reason mentioned 
 In the foUovving chapter. A protest, as to the presentment and non- 
 acceptance of a foreign bill of exchange, attested by a notary 
 public, is evidence of those facts, in an action upon the bill: this is 
 a relaxation of the strict rule, from a principle of general con- 
 venience. (7) (l) A certificate of the discharge of an insolvent 
 debtor by the quarter sessions, under the insolvent act of2 G. 2, c. 
 20, has been admitted as evidence of the fact of his discharge. (8) (m) 
 
 (1) Willes, Rep. 550. (7) Willes, 550. 
 
 (2) Alsop V. Bowtrell, Cro. Jac. 541. (8J Gillum v. Stirrup, Rep. temp. 
 
 (3) Willes, Rep. 549. Hard. 144. Action of debt on bond; 
 
 (4) 1 Black. Rep. 29. discharge pleaded in bar. As to 
 
 (5) By Willes, C. J., Willes's Rep. proof of discharge of an insolvent 
 550. debtor, vide supra, p. 2t9. 
 
 (6) 6 T. R. 630, 635. 
 
 (A) See Note 700, p. 1043 (i) See Note 701, p. 1044. (j) See Note 702, p. 1044. 
 (k) See Note 703, p. 1051. {I) See Note 704, p. 1052. (?«) See Note 705, p. 1054.
 
 C h . 5. ] Of the Proof of Records, ^c. 383 
 
 CHAP. V. 
 
 Of the Proof of Records and Judicial Proceedings. 
 
 The admissibility of judicial proceedings having been treated of 
 in the preceding chapters, it remains to consider, how their con- 
 tents are to be regularly proved, so as to render them producible 
 in evidence. 
 
 Records are, for security, preserved in public depositories, and, as Records, 
 ihey cannot be removed from place to place to serve a private pur- 
 pose, examined copies are admitted as the best producible evi- 
 dence. (1) 
 
 Public acts of parliament are presumed by the hw to be known Public stat- 
 to every individual. Printed copies, therefore, of public acts, and 
 the printed statute-books, are resorted to by courts of justice, not 
 strictly as evidence, but as serving to refresh the memory, (2)(n) 
 And by the statute 41 G. 3, c. 90, s. 9, made for better and more 
 effectual proof of the statute-law of this country in Ireland, and 
 of the Irish statute-law in Great Britain, it is enacted, that copies 
 of the statutes of Great Britain and Ireland prior to the Union, 
 printed by the printer duly authorized, shall be received as con- 
 clusive evidence of the several statutes in the courts of either 
 kingdom. 
 
 In some acts of parliament, not relating to the kingdom at 
 large, a special clause is often inserted, declaring them to be pub- 
 lic acts. Such acts are to be considered on the same footing, and 
 of the same authority, in courts of justice, as those above mention- 
 ed; and proof of the contents will be as unnecessary in this case, as 
 where a statute is public without the aid of such special clause, (o) 
 
 A clause is also frequently inserted in some private acts, pro- P"vate acts, 
 viding that they shall be printed by the king's printer, and that 
 
 (1) Leighton v. Leighton, 1 Str. 210. (2) Gilb. Ev. 8. 
 Vide supra, p. 317. 
 
 (71) See Note 706, p. 1055. (o) See Note 70T, p. 1056.
 
 384 
 
 Of the Proof of Records 
 
 [Ch. 6. 
 
 a copy, so printed, shall be admitted as evidence of the act. In 
 such cases, a copy, purporting to be printed by ihe king's printer, 
 will be admissible in evidence. 
 
 "When a private act of parliament, not containing such a clause, 
 is required in evidence, the regular proof if by an examined copy, 
 compared with the original in the parliament-office at Westmin- 
 ster. Even in the case of a private statute, however, if one of the 
 parties to the suit has done an act under the statute, against 
 which act the other party appeals, and the regularity of which pro- 
 ceeding is the question to be tried, there the appellant will not be 
 obliged to produce an examined copy, but a common printed copy 
 will be sufficient. (1) (p) 
 
 Copy of 
 record. 
 
 Copies of records in courts of justice are of two kinds; under 
 seal, and not under seal. Those under seal are called exemplifi- 
 cations, and are of higher credit than anj sworn copy: for " the 
 courts of justice, that put their seal to the copy, are supposed more 
 capable than a common person to examine, and more exact and 
 critical in their examination. (2) These exemplifications are of 
 two kinds; under the great seal of Chancery, or under the seal of 
 sonie other court. (3) 
 
 Copy under 
 seal. 
 
 1. The practice is not to exemplify a record under the great 
 seal, unless it be either a record of the Court of Chancery, or be 
 sent from some other court into Chancery, the centre of all courts, 
 by writ of certiorari. But in either of these cases a copy may be 
 obtained, under the attestation of the great seal. (4) 
 
 Record in 
 issue. 
 
 If the record of a court is put in issue by a proceeding in the 
 same court, the record itself is inspected by the Judges, {q) But 
 when the record, denied by the issue, is in a court of superior or 
 concurrent jurisdiction, the trial is then by the tenor of the rec- 
 ord, which may be obtained by certiorari and mittimus out of 
 
 (I) R V. Shaw, 12 East, 479. Ap- 
 peal against a rate, made by the re- 
 spondent under a private act. In this 
 case, as Mr. Justice Le Blanc observed, 
 the respondent ought to begin, by show- 
 ing th.it he had a right to make the rate 
 under the act. 
 
 (2) Gilb. Ev. 11, 12. 
 
 (3) Glib. Et. 12. 
 
 (4) 3 Inst. 173. Gilb. Ev. 12. Bui 
 N. P. 226 
 
 ip) See Note 70S, p. 1066. {q) See Note 709, p. 1057.
 
 Ch. 5. J and Judicial Proceedings. ^85 
 
 Chancery, (1) a method adopted for the purpose of communicating 
 evidence of records from one superior court to another, without the 
 inconvenience of removing tlie originals, (r) If the record of a0 
 inferior court is disputed in a suit before a higher tribunal, the cer- 
 tiorari may be issued out of the superior court, as well as from the 
 Court of Chancery. (,2) And in pursuance of this writ, where the 
 superior court sends for the record of an inferior court, not for the 
 purpose of seeing whether their proceedings are within the limits 
 of their jurisdiction, but merely to know whether there be in fact 
 such a record, it will be sufficient to certify the tenor, that is, a lit- 
 eral transcript of the record. (3) But where the record itself is the 
 subject of the proceedings in the superior court, the original ought 
 to be returned. (3) (s) 
 
 When records arc exemplified, the whole, in general, must be Exemplifica- 
 exemplified, for the construction is to be taken from a view of the 
 whole together: and nothing but records can be proved by an ex- 
 emplification, (i) Private deeds, exemplified under the broad seal, 
 will not be adn^.itted in evidence: for as the deeds themselves are 
 in the custody of the party, they ought to be produced, that the 
 court may see, whether there are any erasures or interlineations. (4) 
 
 2. The second sort of copies under seal are exemijlifications of 
 the record of a court under its own seal; and they also are con- 
 sidered to be of higher credit than svi'orn copies, (m) The sea] 
 of the king, and of the public courts of justice, and of all courts Seals of 
 established here by act of Parliament, are admitted in evidence 
 without extrinsic proof of their genuineness; (r) as, for example, 
 the seal of the county palatine of Chester, (5) or of the great ses- 
 sions of Wales, (6) or the seal of the ecclesiastical court on an ex- 
 emplification of a will. (7) But the seals of private courts, or of a 
 
 (1) Luttrel V. Lea, Cro. Car. 297. Gvvin, 2 Sid. 146. Tooker v. D. of 
 Pitt V. Knight, 1 Sannd 98. Hewson Beaufort, Sayer, 297, where the ex- 
 V. Brown, 2 Burr. 1034. einpliticalion was under the sea! of lh« 
 
 (2) Butcher and Aldwoith's case, Court of Exchequer. 
 
 Cro. Eliz. 821. Guilliam v. Hardy, 1 (G) Dyer, 276, cited in Olive v. 
 
 Ld Uaym. 216.* Gwiii, 2 Sid. 146. Hardr. 118, S. C. 
 
 (3) Woodcraft v. Kinaston, 2 Atk. Gilb. Ev. 16. 
 
 317. (7) Kempton, dein. Boyfield, v. 
 
 (4) Bull. N. l\ 227. Cross, Rep. temp Hard. 108. 
 
 (5) Dyer, 276, cited in Olive v. 
 
 (r) See Note 710, p. 1057. (s) See Note 711, p. 1057. «) See Nolo 712, p. 
 1058. (u) See Note 71.3, p. 1059. (v) See Note 714, p. 1061. 
 
 Vol. I. 49
 
 386 
 
 Of the Proof of Records 
 
 [Ch. 5. 
 
 Seal of corpo- 
 ration. 
 
 foreign colonial court, (1) (?o) or of a corporate' body, (2) ought to 
 be proved by a witness acquainted with their impression, (x) It is 
 not, however, necessary to prove the seal of a corporation in the 
 same manner as the seal of an individual, that is, by producing a 
 witness, who saw the seal affixed to the identical instrument; but 
 when an instrument purports to be under the seal of a corporation, 
 it will be sufficient to show, that the seal is the official seal of the 
 corporate body. (3) (y) 
 
 Copy not nn- 3_ Copies of records, not under seal, are also of two kmds; 
 der «eal. ' . y m 
 
 sworn copies, and office copies. 
 
 Examined 
 copy. 
 
 Proof of lost 
 record. 
 
 Records are complete, as soon as they arc delivered into court in 
 parchment, and theie fixed as the rolls of the court. Of these, a 
 sworn, that is, an examined copy, will be sufficient evidence for a 
 jury, unless the record itself is in issue. But the copy of a judg- 
 ment, signed by the master, is not evidence, though upon such 
 judgment execution may be taken out: for it is not yet become 
 permanent, and is removeable from place to place. (4) (2) 
 
 Copies of records are to be proved, as other transcripts, by a wit- 
 ness, who has compared the copy, line for line, with the original, 
 or who has examined the copy, while another person read the ori- 
 ginal; (5) (a) and it ought to appear, that the original came from 
 the proper place of deposit, or out of the hands of the officer in 
 whose custody the records were kept. (6) (b) 
 
 Where an ancient record has been lost, a copy may be read 
 without proving it a true copy, (c) An unexamined copy of a 
 recovery of lands in ancient demesne has been received where 
 the original was lost, and where possession had gone for a long 
 time according to the recovery. (7) And similar proof has been 
 
 (1) Henry V. Adey, 3 East, 221. (5) Reid v. Murgison, 1 Campb. 
 
 (2) Moises V. Thornton, 8 T. R. 470. Rolf v. Dart, 2 Taunt. 52 M'Niel 
 307. V. Percbard, 1 Esp. N. P. C. 263. 
 
 (3) 8 T. R. 307. Chaclvvick v. Gyles v. Hill, 1 Campb. 47 1, n. 
 Bunriing. 1 Ry. & Mo. N. P C. 306. \(1) Aduirithwaite v. Synge, 1 Star- 
 In VVoodrias v. Mason, 1 Esp N. P. C. kie, N. P. C. 1S3; 4 Campb. 372, S. C. 
 53, it was held l)y Lord Kenyon that (7) Anony. case, Ventr. 257. Bull, 
 the seal of the city of London proves N. P. 228. Green v. Rondc, 1 Mod. 
 itself. 117. 
 
 (4) Bull. N. P. 228. 
 
 (w) See Note 715, p. 1062. (a;) See Note 716, p. 1062. (y) See Note 717, 
 p. 1062. (z) See Note 718, p. 1063. (a) See Note 719, p. 1065. (6) See Koto 
 720, p. 1065. (c) See Note 721, p- 1066.
 
 Ch. 6.] and Judicial Proceedings. 387 
 
 allowed of tho decree in tlie time of Henry the Eighth for lithe in 
 London, that decree having been lost. (I) In such cases, says Ch. 
 B. Gilbert, the instrument must be according to the rule of the civil 
 law, velustatc tcmporis aut jndiciariA cognitione rohoratum. {2)(d) 
 
 A lost record may be proved by other competent evidence be- 
 sides a copy. Lord Holt said, in the case of Thurston v. Slat- 
 ford, (3) he remembered a case where the utjiversity of Oxford en- 
 titled themselves to a presentation by a conviction of the Earl of 
 Shrewsbury for recusancy, and upon giving some evidence tl.'at 
 the record was lost, the university was permitted to prove the ef- 
 fect of it by other evidence, (e) 
 
 An office copy is, in the same court, and in the same cause. Office copies, 
 equivalent to a record; but in another court, or in another cause 
 in the same coui't, the copy must be provwd. (4)(/) 
 
 A disti\iction is to be made between a cony authenticated hy^^^^^^^^', 
 
 ' *' •' cer autrionzed 
 
 a person trusted for that purpose, and a copy given out by an 
 officer of the court, who is not trusted for that purpose; in the. 
 former case, the copy is admissible in evidence, without proof of 
 its having been actually examined, for the law will trust such 
 officer, as far as he acts under its authority; but the copy is not 
 admissible in the latter case. (5) (^) The chirograph of a fine, Chirograph. 
 for example, is evidence of the fine, the chirographer being ap- 
 pointed to give out copies of the agreements between the parties, 
 which are entered of record. (6) An indorsement by the proper 
 officer on a deed of bargain and sale, enrolled according to the Enrolment, 
 form of the statute 27 H. 8, c. 16, is evidence of the enrol- 
 ment: (7) and an indorsement of the date of enrolment, by 
 the clerk of the enrolments, is part of the record, and con- 
 clusive as to the date. (8)(/i) So, where it became necessary 
 
 (1) Ventr. 257. Knight v. Dauler, (5) Bull. N. P. 229. 
 
 Hardr. 323. Thurston v. Slatford, (6) Gilb. Ev. 21. 2 Starlue, N. P. 
 
 1 Salk. 284, by Holt, C. .T. Bull. N. C. 13. 
 
 P. 228. Macdowgal v. Young, 1 Ry. (7) By Buller, J. in Kinnersley v. 
 
 & Mo. 393. Orpe, 1 Doug. 56. 
 
 (2) Gilb. Ev. 19. (8) The King in aid of Reed v. 
 
 (3) 1 Salk. 284. Hopper, 3 Price, 495. The same rule 
 
 (4) By Lord Mansfield, in Denn, with respect to the date of tho enrol- 
 dem. Lucas V. Fulford, 2 Burr. 1180, ment of a memorial of annuity-deeds; 
 1181; and see 2 Starkie, N. P. C. Carrick v. Williams, 3 Taunt. 540. 
 13, 14. 
 
 id) See Note 722, p. 1066. (e) See Note 723, p. 1067. (/) See Note 724, p. 
 1068. (g) See Note 725, p. 1069. (h) See Note 726, p. 1069.
 
 383 
 
 Of the Proof of Records 
 
 [Ch. 5. 
 
 for the plaintiff to show, in proof of his title, that a certain lease 
 had been enrolled with the auditor of the Duchy of Lancaster, the 
 Court of King's Bench held, that a mcniorandum of enrolment, on 
 the margin of the lease, signed " A. B. auditor," was sufticient 
 proof of the enrolment. (I)* 
 
 Rale of court, A rule of court, under the hand of the proper officer, is itself an 
 original, and may be given in evidence in a legal proceeding in 
 that court, without being proved a true copy. (2) (i) So, in a case 
 where a witness, being about to leave the country, had been exam- 
 ined at a Judge's chambers upon interrogatories, a copy of his de- 
 position, delivered out by the clerk of the Judge, and signed by the 
 Judge, has been admitted in evidence, without proof of its being 
 examined and compared with the original deposition. (3) 
 
 Copy by offi- 
 cer unanthor- 
 ized 
 
 Jndgnient 
 
 Enrol mert. 
 Deposition*. 
 
 Where the officer of the court is only entrusted with the custody 
 of records, and is not authorised to make out a copy, he has no 
 more authority for that purpose than a common person; (J) and 
 the copy must be regularly proved in a strict and regular mode. 
 A copy of a judgment, though purporting to be examined by a 
 clerk of the Treasury, is not admissible, without proof of its having 
 been examined; because it is no part of the necessary office of the 
 clerk to deliver a copy; he is only entrusted to keep the records for 
 the benefit of public perusal, and not to make out copies of them. (4) 
 If a deed enrolled be lost, a copy of the enrolment, made out by the 
 clerk of the peace, but not proved to be examined, is not admissi- 
 ble. (5) The office copies of depositions, taken in Chancery, though 
 they are evidence in the Court of Chancery, where officers are 
 entrusted for that purpose, will not be admitted in courts of com- 
 mon law, without examination with the roll. (6) And where 
 
 (1) Kinnersley v. Orpe, 1 Doug. 56. 
 
 (2) Selby v. Harris, 1 Ld. Raym. 
 745. Bull. N. P. 229. 
 
 (3) Duncan v. Scott, 1 Campb. 101. 
 
 (4) Bull. N. P. 229. 
 
 (5) Ibid. 
 
 (6) Giib. Ev. 21. Bull. N. P. 229. 
 2 Stavkie, N. P. C. 1.3. 
 
 * An examined copy of the memorial of an assignment of a judgment (the 
 memorial being required by act of parliament) is evidence of the fact of as- 
 signment. And an examined copy of the memorial of the registry of a deed, 
 is e%idence of the fact of the registry. Hobhouse v. Hamilton, 1 Schoal. & 
 Lef 207. 
 
 (t) See Note 727, p. 1069. {j) Sec Note 72S, p. 1070.
 
 Ch. 5. j and Judicial Proceedings. 389 
 
 a fine is to be proved with proclamations, as it must be to bar a Proclnma- 
 stranger, the proclamations ought to be examined with the roll; 
 for thou°-h the chirographer is authorised to make out copies of the 
 fine itself, he is not appointed to copy the proclamations. (I) 
 
 When a verdict is offered in evidence, as the opinion of a jury Verdict, 
 on certain points in issue, it will be necessary also to produce a 
 copy of the judgment founded upon the verdict. The production 
 of the postea alone is not sufficient; for it may happen that the Po^tee. 
 judgment was arrested, or a new trial granted. (2) (fc) But this 
 rule will not apply to the case of a verdict on an issue directed out Issua. 
 of Chancery, as it is not usual to enter up judgment in such a 
 case; and here, therefore, the decree of the Court must be shown, 
 which will be sufficient proof, that the verdict was satisfactory, 
 and stands in force. (3) 
 
 Though the nisiprius record with the postea indorsed, is not gen- ^Jf^^^""' 
 erally evidence of the verdict, it is good and proper evidence, that 
 the cause came on to be tried. (4) (l) And, in an action by the 
 plaintiff, to recover a moiety of the money paid by him under a 
 verdict, which a third person had recovered in a suit against 
 him and the defendant, as co-defendants, the nisi jjrius record, 
 with the postea indorsed, will be evidence of the verdict and 
 damages in the former suit, without proof of the judgment. (5) (m) 
 In the case just cited, of Fisher v. Kitchingman, Willes, C. J. 
 doubted, whether the associate was the proper person to pro- 
 duce the postea in evidence; because, by several rules of court, 
 it ought to be returned into court to the proper officer, within 
 the four days of the next term; but, on the prolhonota- 
 ry's informing the court, that scarcely one postea in a hun- 
 
 (1) Gilb. Ev- 21. Allen's case, (5) Foster v.- Compton, 2 Starkie, 
 Bull. N. P. 229. 3 Taunt. 166. Doe, N. P. C. 365. By Tenterden, C. J. 
 dem. Hatch v. Biuck, 6 Taunt. 48(5, The postea, in this case, with the 
 487, S. P. Master's allocalure indorsed upon it, 
 
 (2) Bull. N. P. 234. Fisher v. Kit- was offered also as evidence of the 
 chingman, Willes, 367. Garland v. costs: the Lord Ch. Justice douliled 
 Scooncs, 2 Esp. N. P. C. 646, contra, whether this was sufficient proof of 
 
 (3) Montgomerie v. Clarke, at the the costs. The plaintiff, however. 
 Delegates, 17-15. Bull. N. P. 234. was allowed to take a verdict for the 
 
 (4) Pitton V. Walter, 1 Str. !61. whole demand, subject to be reduced 
 Fisher v. Kitchingman, Willes, 36S. afterwards, if the court should think it 
 R. V. Page, 2 Esp. N. P- C. 649, n. right. 
 
 6 Esp. N. P. C. S3, S. C. 
 
 (fe) See Note 729, p. 1070. (/) S«e Note 7.^0, p. 1071 (/?)) See Note 731 , p 1071.
 
 890 Of the Proof of Records [Ch. 5. 
 
 died was so returned, he was of oj)inion, ihat this objection was not 
 of sufficient weight to set aside the verdict. 
 
 Judgment. The final judgment of a court is proved by an examined copy 
 
 of the judgment, entered of record on the judgment-roll, which is 
 filed in the treasury of the court. It will not be regularly proved 
 by the juiigment-book of the court; although the record of the 
 judgment-roll may not have been made up, and though the par- 
 ty interested in the proof of such judgment, was not a party to 
 the suit, in which the judgment was obtained. (l)(n) 
 
 Writif. When a writ is only inducement to the action, the fact of takii.g 
 
 out the writ may be proved without a copy, because possibly the 
 writ might not have been returned, and then it is not a record, (o) 
 But where ths writ itself is the gist of the action, there ought to 
 be a copy from the record, as the best proof of which the nature of 
 the case is capable. (2) (p) If it be necessary to prove, that a writ 
 issued in a particular cause, it will not be sufficient to prove the 
 prcBcipe by the filazer's book, and after proof of notice to produce 
 the original, to give in evidence a copy of the writ; but a proper 
 search must be proved to have been made at the Treasury for the 
 original writ, before secondary evidence can be given.(3)(<j') An 
 examined copy of the judgment-roll, containing tlie award of an 
 
 Elegit. elegit and return of the inquisition, is evidence, in an action for use 
 
 and occupation, of the title of the plaintiff, who claims under the 
 elegit, without proving a copy of the elegit and of llie inquisi- 
 tion; (4)(r) the judgment-roll is absolute proof of all the proceed- 
 ings, which it sets forth, (s) 
 
 t^■ ■ r ■ If an action of trespass, for taking goods in execution, is 
 
 fieri lacias. ' . 
 
 brought by the party, against whom the writ o{ jier a facias issued, 
 it will be sufficient for ihe officer to give the writ in evidence, 
 without showing a copy of tlie judgment, {t) But if the plaintiff 
 
 (1) Ayrey v. Davenport, 2 New (2) Gilb. Ev. 34. Bull. N. P. 234. 
 
 Rep. 474. The judgment booU was (3) Edmonstone v. Plaisted, 4 Esp. 
 
 produced in this case by the officer of N. P. C. 160. 
 
 the court, on the part of the defend- (4) RamsboUom v. Bucldiurst, 2 
 
 ant, and notice had not been given to Mauio Hi. Seiw. 565. 
 the plaintiff to produce the judgment- 
 paper. 
 
 (7j) See Note 73.^ p. 1072. (o) Sec Note 733, p. 1076. (p) See Note 734, i>. 
 1076. (9) See Note 735, p. 1076. (r) See Note 736, p. 1077. (s) See Note 
 737, p. 1078. (0 See Note 738, p. 1078.
 
 Ch. 5.] and Judicial Proceedings. 391 
 
 is not the parly, against whom the writ issued, and claims the 
 goods by a prior execution or sale, the officer, in order to prove the 
 sale or the execution fraudulent, must produce not only the writ, 
 but also a copy of the judgment. In the first case, he will justify 
 himself, by proving that he took the goods in obedience to a writ 
 issued against the plaintiff; but, in the other case, the goods do 
 not prima facie belong to the party against whom the writ issued, 
 and therefore the officer is not justified by the writ in taking them, 
 unless he can bring the case within the statute 13 Eliz. c. 5, against 
 fraudulent alienations, &c. for which purpose it will be necessary 
 to show a judgment. (l)(w) 
 
 The return o( the sheriff upon a writ, which has been duly re- Sheriff's re- 
 turned and filed, (v) is prima facie evidence of the fact there stated, 
 when that fact comes incidentally into question, even in an action 
 between third persons. If the sheriff return a rescue, the court 
 above to which the return was made, would give it such credit, 
 as to issue an attachment in the first instance; though, upon an 
 indictment for a rescue, the defendant might show, that the re- 
 turn was false. (2) iVnd so in an action for maliciously suing out 
 an alias fieri facias^ after a sufficient execution under the first _/ien 
 facias^ the Court of King's Bench held, that the sheriff's return an- 
 nexed to the writs (in which he stated, that he had forborne to 
 sell under the first, and had sold under the second writ, by the re- 
 quest and with the consent of the plaintiff,) had been properly ad- 
 mitted at the trial as evidence of that fact, in support of a plea of 
 licence pleaded by the defendant; for, as the Court said, faith 
 ought to be given to the official act of a public officer like the sher- 
 iff, even where third persons are concerned. (3) But though the 
 sheriff's return is prima facie evidence that he has levied, it affords 
 no proof, that he has paid over the money to the judgment-credi- 
 tor, so as to charge him in an action with the receipt. (4) (iv) 
 
 (1) Lake V. Billers, 1 Ld. Ray. 733. cher, Cowp. 63. M'Neilv. Perchard, 
 Martin v. Podgcr, 2 BlacU. Rep. 701. 1 Esp. N. P. C 263. Jones v. Wood, 
 Bull. N. P. 231, a 3 Camph. 229. Fairlie v. Birch, 3 
 
 (2) il. V. Klkius, 4 Burr. 2129. Campb. 397. 
 
 There are several cases, in which the (3) Gj'fibrd v. Woodgate, 11 East, 
 
 indorsement on tlie writ has been ad- 297. 
 
 initlcd as evidence against the sheriff, (4) Calor v. StoUes, 1 Maule & Sel. 
 
 who makes the return. Blatch v. Ar- 599. 
 
 (u) See Note 739, p. 10S2. (t>) See Note 740, p. 1083. (w) See Note 741, p. 1083.
 
 >92 
 
 Of the Proof of Records 
 
 [Ch. 6. 
 
 InqoisltioD. 
 
 Common re- 
 coTeries. 
 
 Decree in 
 Chancery. 
 
 When an inquisition is oflered in evidence, the commission, un- 
 der which it was taken, ought regularly to be proved, or shown to 
 be lost. But in cases of more general concern, such as the minis- 
 ter's return to the commission in the reign of Hen. 8, for enquiring 
 into the value of livings, a copy of the whole record need not be 
 taken, and the commission is of such public notoriety as not to 
 require any proof. (l)(a^) 
 
 It is enacted by statute 14 G. 2, c. 20, s. 4, (made for the pur- 
 pose of protecting purchasers, in cases where recoveries have not 
 been entered on record,) that, where any person has purchased 
 any estate, whereof a recovery was necessary to be suffered in or- 
 der to complete the title, such person, and all claiming under him, 
 having been in possession of the purchased estate from the time of 
 the purchase, may, after the end of twenty years, produce in evi- 
 dence the deed making a tenant to the writ of entry, or other writ 
 for suffering a common recovery and declaring the uses: and the 
 deed so produced, execution thereof being duly proved, shall in all 
 courts be deemed good and sufficient evidence for the purchaser, 
 and all claiming under him, that the recovery was duly suffered 
 and perfected according to the purport of the deed, in case the 
 record of recovery cannot be found, or should not appear to be reg- 
 ularly entered. And, by the fifth section of the same act, every 
 common recovery shall aftfir the expiration of twenty years from 
 the time of suffering thereof, be deemed valid to all purposes, if it 
 appear on the face of the recovery, that there was a tenant to 
 the writ, and if the persons, joining in the recovery, had a sufli- 
 cient estate, to suffer the same; notwithstanding the deed, for 
 making the tenant to such writ, should be lost or should not 
 appear. 
 
 A decree in the Court of Chancery may be proved by an ex- 
 emplification under the seal of the Court; or by a sworn copy; 
 or by a decretal order in paper, with proof of the bill and an- 
 swer. (2) [y) But it has been held, that the bill and answer need 
 not be proved, if they are recited in the decretal order. (3)(z) And 
 
 (1) Bull. N. P. 228. Hardcastle v. (3) By Trevor, C. J. in Wheeler v. 
 Sclater, 2 Gvvill. 787. Lowth, cited Com. Dig. ib. 1 Keb. 21, 
 
 (2) Trowel v. Caslle, 1 K. b. 21. contra. 
 Com. Dig. Ev. (C. 1,) p. 94. 
 
 (x) See Note 742, p. 1097. {y) See Note 743, p. 1097. (z) See Note 744, p. 1097.
 
 Ch. 5.] and Judicial Proceedings. 393 
 
 it is said in a book of authority, (1) that if a party wants to avail 
 himself of the decree only, and not of the answer, the decree, un- 
 der the seal of the Court and enrolled, may be given in evidence 
 without producing the bill and answer, and the opposite party will 
 be at liberty to show, that the point in issue was not the same as 
 the present issue, (a) However, the rule, generally laid down, 
 seems to be, that, where a party intends to avail himself of the 
 contents of a decree, and not merely to prove an extrinsic collate- 
 ral fact, (as, that a decree was made by the Court,) he ought reg- 
 ularly to give in evidence the proceedings upon which the decree 
 is founded, (b) " The whole record," says Ch. B. Comyns, 
 " which concerns the matter in question, ought to be produced. "(2) 
 So, a sentence in the Admiralty Court may be evidence, upon the 
 libel and answer produced: (c) and a judgment in a court-baron> 
 or other inferior court, with proof of the proceedings in which the 
 judgment was given." (3) 
 
 If the fact to be shown, were merely, that a decree has been 
 made in the Court of Chancery, or that a decree, made there, has 
 been reversed on appeal, proof of the previous proceedings will not 
 be necessary. (4) (d) And in the case of an ancient decree, if the Ancient de- 
 bill and answer cannot be found aft<T proper search, the decree 
 alone may be admitted. 
 
 An answer cannot be regularly given in evidence without proof Answer. 
 of the bill; for without the bill there does not appear to be a cause 
 depending. But if there be proof by the proper officer, that the 
 bill has been searched for in the office, and cannot be found, the 
 answer has been allowed to be read without a sight of the bill. (5) 
 (e) As the defence in Chancery is upon oath, it will be presumed, 
 in ordinary cases, that the answer was sworn to by the defendant. 
 
 When an answer is oflered in evidence as an admission of the Asanadmia- 
 party upon oath, (6) (/) or when it is used for the purpose of contra- 
 ct) Bull. N. P. 235, citing Lord (4) See Jones v. Randall, Covp. 17. 
 Thanet v. Piiterson, K. B. East, 12 (5) Gilb. Ev. 49. 
 G. 2. (6) Lady Dartmouth v. Roberls, 16 
 
 (2) Com. Dig. tit. Evid. (A. 4.) p. 85. East, 334. Salter v. Turner, 2 Campb. 
 
 (3) Com. Dig. tit. Evid. (C. 1,) p. 94. S7. 3 Campb. 401. 
 
 (o) See Note 745, p. 1098. (6) See Note 746, p. 1098. (c) See Note 747, 
 p. 1098. (d) See Note 748, p. 1098. (e) See Note 749, p. 1098. (/) See 
 Note 750, p. 1099. 
 
 Vol. I. 50
 
 394 
 
 Deposition. 
 
 Of the Proof of Records 
 
 [Ch. 5, 
 
 Proof of 
 swearing. 
 
 Depositions. 
 
 dieting a witness, (1) it will be sufficiently proved by an examined 
 copy; nor will it be necessary to show, that there has been any 
 decree in the suit. (2) Jf an examined copy is given in evidence, 
 some proof of the identity of the party will be requisite; and this 
 may be supplied by extrinsic proof, or by the proceedings them- 
 selves. In one case, the attorney of the party was called, to prove 
 that the other party had filed the bill in equity against his client. (3) 
 In another case, in which the action was brought against the de- 
 fendant A. B. as adn)inistrator of C. D., aod the defendant did not 
 plead, that he was not administrator, it appeared, that the bill in 
 equity had been also filed against A. B. as administrator of C. D.: 
 and this was considered to be sufficient presunjptive evidence, that 
 the answer, purporting to be made by A. B. in that character, was 
 the answer of the defendant. (4) (^) Proof of the signature of the 
 party in the original aoswer, by a witness acquainted with the 
 hand-writing, who has never inspected the original, will be suffi- 
 cient, in such cases, to show that it is the answer of the party. (5) 
 
 Stricter proof than an examined copy is 'required, on a prosecu- 
 tion for perjury alleged to have been committed by the defendant 
 in his ariswer. Some evidence of the administration of the oath 
 will there be required; as, that a person, calling himself by the de- 
 fendant's name, was sworn, and that the signature on the answer, 
 which must be produced, is his hand-wiiting; or that the answer 
 is signed by the defendant, and that the jurat purporting to have 
 been sworn before a master, is attested by the master's hand-writ- 
 ing. (6) (/t) This strictness of proof isrequii-ed not only in criminal 
 proceedings, as on a trial for perjury, but also in actions which are 
 in the nature of a criminal proceeding, as in an action for a mali- 
 cious prosecution. (7) 
 
 With regard to depositions, the general rule is, that they are 
 not to be admitted in evidence without proof of the bill amJ 
 
 (1) Ewer V. Ambrose, 4 Barn. &. (4) Henneil v. Lyon, 1 Barn. & Aid- 
 Cress. 25. J 82. 
 
 (2) Lady D;uinioutti v. Roberts, 16 (5) Dartnall v. Howard, 1 Ry. & 
 East, 334. Mo 169. 
 
 (3) Hodgkinson v. VVjllis, 3 Canipb. (6) R. v. Morris. 2 Burr. 1189. R. v. 
 401. Benson, 2 Campb. 50.8. 
 
 (7) 16 East, 840. 
 
 (§■) See Note 75', p. 1099, (/i) See Note 752, p, lOPU,
 
 Ch. 5.] and Judicial Proceedings. 395 
 
 answer;(l) for, if there do not appear to be a cause depending, Deposit ion. 
 the depositions are considered to be mere vohintnry affidavits; and 
 tlie bill and answer ought to be produced, in order to show who 
 were the parlies to the suit, and what tiie j^^oints in issue, as depo- 
 sitions in general are evidence only upon the same points, ^and be- 
 tween the same parties, or tliose wiio claim under the parties. (2) (i) 
 But depositions maybe read without such antecedent proof, if ^^osi '''" and 
 
 . . , ... 1 r J - answer. 
 
 ihey are so ancient, tbat no bill or answer can be lorthcoming; 
 formerly it was not the practice to enrol bills and answers. (3) (J) 
 And if the defendant is in contempt, or has had an opportunity of 
 cross-examining^ which he chose to forego, the depositions may 
 then be read, after proving the bill, aJ(ho.uglj no answer lias been 
 put in. (4) 
 
 Depositions are evidence, as an admission, against ti party to the 
 suit — or fcr *the purpose of contradi-cting a witness — without proof 
 of the bill and ansu'er; (fe) but some proof of tlie idenliiy of the 
 person will be necessary. 
 
 Depositions takers on interrogatories, under a commission of On interroga- 
 .... . tones, 
 
 modern date, are not adn^issible without the production of tliecoin- 
 
 snission, under the authority of which the deposiiions were taken: 
 if the depositions are of a long standing, so that the commission 
 «may be presumed to have been lost, they are evidence by them- 
 ssives: in either case, whether the depositions are of a recent or an- 
 cient date, there is no occasion to produce the bill and answei-. (5)(Z) 
 
 Where the Court of Chancery, on directing a trial at law, Order to read, 
 makes an order, that the depositions of a witness shall be read, 
 the proof of the bill and answer will be dispensed with. This 
 order is not made for the purpose of njaking that admissible in 
 
 (1) Gilb. Ev. 56. Bull, N. P. 240. dence was one of the grounds upon 
 
 Niglitingale v. Devisiiie, 5 Burr. 2.!J94, which a new tri;il wis afterwards 
 
 ad tin. Baker v. Sweet, Bumb. 91. granted. And see Byan v. Booth, 2 
 
 Illingworth v. Leigh, 4 Gwill. 1619. Price, 234, n. 
 
 At the trial of the last cited case, Mr. (2) See ante, p. 334. 
 
 Just. Heath refused to admit deposi- (3) Byan v. Booth, 2 Price, 234, n. 
 
 tions in evidence, becau'^o the bill and Gilb. Ev. 58. 
 
 answer had not been duly proved, nor (4) Cazenove and another v. Vaug- 
 
 enquired after. But it is s:iid by the han, 1 Maule Si Selw. 4.'^ 
 
 reporter, that the rejection of tiiis evi- (5) Baglie v Wylie, 6 Esp 85. 
 
 (i) See Note 753, p. 1099. (j) See Note 754, \>. 1100. (k) See Note 755, p 
 1100. (0 See Note 756, p. 1100.
 
 396 Of the Proof of Records [Ch. 5. 
 
 Probate. evidence, which is not strictly admissible in courts of common 
 
 law;(l) and the depositions cannot be admitted, even under the 
 order, unless it be satisfactorily proved at the time of the trial, that 
 the witnesses are unable to attend in person, (m) If depositions 
 were offered in evidence without such an order, the whole record, 
 bill, answer, &c. must be regularly proved; but when there is an 
 order for reading depositions, the court of law will read them, with- 
 out going through the regular and strict course, which is general- 
 ly necessary for the purpose of making them evidence. (2)(n) 
 
 Proof of depo- The proof of depositions is by an examined copy. Office copies 
 siiions. g^g evidence in the Court of Chancery, but not in courts of com- 
 
 mon law, for a reason before mentioned. (3)(o) 
 
 ludgment in Judgments in the House of Lords are not formally drawn up. 
 House of but minutes only are entered on ihe Journals. The minutes of a 
 
 judgment are the judgment itself, and they may be proved by an 
 
 examined copy. (4) 
 
 Froceedingg in When the judgment of court-baron, or of any other court of 
 inferior courts, inferior jurisdiction, is offered in evidence, (p) the proceedings, on 
 which it is founded, ought to be shown;(5)(7) but as the proceed- 
 ings are not usually made up in form, the minutes will be admit- 
 ted, if they are perfect, and omit nothing material. (6)(r) If the 
 proceedings in an inferior court are entered on the books of the 
 court, they may be proved by the memorandum of such entry. («) 
 If they are not entered in the books, they may be proved by the 
 officer of the court, or other person conversant of the fact. (7) 
 
 Probate of Testaments are proved in the ecclesiastical court either in 
 
 ' common form, or in form of law. 'I'he first mode of proof is, 
 
 where the executor presents the will before the judge, without 
 
 citing the parties interested, and deposes, that it is the true 
 
 (1) 15 Ves. 176. (5) See ante, p. 393. 
 
 (2) Palmer v. Lord Aylesbury, 15 (6) Fisher v. Lane, 2 Black. Rep. 
 Ves. 176. Corbett v. Corbett, 1 Ves. 834. Holt, C. J., in R. v. Hains, 
 & Beam. 310. Comberb. 337. 
 
 (3) See ante, p. 388. (7) See 3 Barn. A: Cress. 451, 453, 
 
 (4) Jones v. Randall, C«wp. 17. 
 
 ' (fTi) See Note 757, p. 1101. (n) See Note 758, p. 1101. (o) See Note 759, p. 
 1102. (p) See Note 760, p. 1102. (q) See Note 761, p. 1104. (r) See Note 762, 
 p. 1105. (») See Note 7fi3, p. 1105. (<) See Note 764. p. 1107.
 
 Ch. 5.] (i7id Judicial Proceedings. "^"^ 
 
 and last will of the testator; upon which the Judge allows the Probate^ 
 
 will. The proof in form of law is, when the will is exhibited be- 
 fore the Judge in the presence of the parties interested, and after a 
 full examination, finally allowed. (1) If the will be proved in com- 
 mon form, it may be disputed at any time within thirty years; but 
 if it be proved in the more formal mode, and there be no proceed- 
 ings within the time limited for appeals, the will cannot after- 
 wards be disputed. (2) (u) After proof of the will, the original is What, 
 deposited in the registry of the ordinary or metropolitan, and a copy 
 in parchment is made out under his seal, and delivered to the ex- 
 ecutor, together with a certificate of its having been proved before 
 him, which copy and certificate are the probate. A court of com- 
 mon law will not take notice of a will as a title to personal property 
 till it is proved in the Ecclesiastical Court; (2) (v) and though the 
 original will, together with the probate, is produced by the officer 
 of the Ecclesiastical Court, the will cannot be read in evidence, 
 unless it bears the seal of the court, or some other mark of authen- 
 tication. (3) (w) 
 
 It is not the practice in the ecclesiastical courts to grant a second Exemplifica- 
 probate, if the first should be lost, but only to grant an exempli- 
 fication from the record of the court, and this exemplification will 
 be evidenceof the proof of the will. (4) And an examined copy of ^°Py "^P"""" 
 a lost probate is evidence of the person there named, being execu- 
 tor, as the probate is an original, taken by authority, and of a pub- 
 lic nature; (5) but a copy of the will would not be evidenceof that 
 fact. (6) The seal of the ecclesiastical court, on the probate, need 
 not be proved. (7) 
 
 The probate of a will, devising real property, is not evidence 
 of the contents, in an action of ejectment, even to prove a rela- 
 tionship; (x) for where the original is in being, the copy is not 
 admissihle; and, besides, the seal of the court does not prove it 
 a true copy, unless the suit relate only to personal properly. (8) 
 
 (1) 3 Bac. Ab. 40, tit. Execiuor. (5) Hoe v. Neltliorp, 3 Snlk. 15-1. 
 
 (2) Stone v Forsyth, 2 Doug. 707. 1 Ld. Rayiii. 154, S. C. Holt, C. J. 
 (3):R. v. Barnes, 1 Starkie, N 1*. in 11. v. Haynes, Skin. 584. 
 
 C. 243. (6) Bull. N. P. 24G. 
 
 (4) Shepherd v. Shoithouse, 1 Str. (7) Vide supra, p. 385. 
 
 412. - Bull. N. P. 246. (S) Bull. N. P. 246. 
 
 (w) See Note 765, p. 1117. («) See Note 766, p. 1117. (w) Sec Note 767, p. 
 1117. (r) See Note 768, p. 1119.
 
 ♦398 Of the Proof of Records [Ch. 5. 
 
 Letters of ad- But the ledger-book, says Mr. Justice Buller, is evidence in such a 
 
 ministration. , , • • • i i i i . • ii 
 
 case, because ihis is not considered merely as a copy, but is a roll 
 
 Ledger-book, of tlie courf, and though the law does not allow these rolls to 
 prove a devise of lands, yet when the will is only to prove relation- 
 ship, the rolls of the spiritual court, which has authority to enrol 
 wills, are sufficient proof of such testament. (1) It has been of- 
 Oopy ten held, that a cowy of the ledger-book is not evidence; yet 
 
 since the original would be read as a roll of the court without fur- 
 ther attestation, it sems fit, says Mr. Justice Buller, that the cpy 
 should also be read. The contrary practice, he adds, has been 
 founded upon the mistaken supposition that the ledger-book is 
 read as a copy, when in fact it is read as a roll of the court. (I ) 
 
 Revocation of To prove that the probate of a will has been revoked, an entry of 
 Probate. ^j^^ revocation in a book of the prerogative court, in which all cau- 
 
 ses were entered by the registrar, and which was kept as the only 
 record of such proceedings, and of the decree of the court, has 
 been admitted to be good evidence. (2) 
 
 Letters of ad- Administration is generally granted by writing under seal. It 
 
 ministration, n^ay also be granted by entry in the registry without letters 
 
 under seal. (3) The Ecclesiastical Court never grants an ex- 
 
 ^ .^ emplification of letters of administration, but only a certificate, 
 
 Certificate. ^ , , r i i 
 
 that administration was granted; therefore, when a lessee pleads 
 
 an assignment of a term from an administrator, such certificate 
 
 is good evidence. (4) And the original book of acts, directing 
 
 Book of ucts. , ^ . , . . ^ { , *= , . , , ' , /: » 
 
 letters of admmistration to be granted, with the surrogates riat 
 
 for the same, is evidence of the title of the parly, to wTiom ad- 
 ministration of the intestate's effects is granted, without produc- 
 ing the letters of administration themselves (notwithstanding sub- 
 sequent letters of administration granted to another,) if the 
 first are not recalled; for the original book was the authority for 
 the proper officer, to make out letters of administration, and the 
 letters of administration were only the copy of the original min- 
 utes of the fikourt, drawn up in a more formal manner. (5) (y) 
 
 (1) Bull. N. P. 246. Cross, Rep. temp. Hard. 108. Bull. 
 
 (2) Ramsbotlom's case, 1 Leach, Cr. N. P. 246 
 
 C. 30, n. (c ) (5) Elden v. Keddell, 8 East, 187. 
 
 (3) Vin. Ab E.xecutor, D p. 70. (larret v. Lister, I Lev 25 Bull. N. 
 
 (4) Kempton, dem. Boytield, v. P. 2415. 2 MauU; & Selw. 567- 
 
 (y) See Note 769. p. 1118.
 
 Ch. 5.] a7id Judicial Procredings. 399 
 
 So, an examined copy of the act book, stating, that administration Award, 
 was granted to the defendant at such a time, is proof of his being j^^ 
 administrator in an action against him, without giving him notice 
 to produce the letters of administration. (1) 
 
 Informations taken before a justice of the peace or coroner, pur- Examinations 
 suant to tiie statutes of Philip and Mary, before they are admitted „" co^oirr!""^ 
 in evidence against the parly accused, ought to be regularly prov- 
 ed by the justice or coroner, who took them, or by the clerk who 
 reduced them to writing, to be the true substance of what the in- 
 former staled upon oath. (2)(r) 
 
 In an action upon a judgment of a court of a foreign country, if Foreign judg- 
 the judgment is subscribed by the Judge of the court, and has a 
 seal affixed, it must be proved by proving the hand-writing of the 
 Judge, and the authenticity of the seal (3) If a colonial court Seal, 
 possess a seal, it ought to be used for the purpose of authenticating 
 its judgments, although it may be so much worn as no longer to 
 make any impression. (4) If it is clearly proved, that the court iias 
 not any seal, so that the docun)ent cannot be clothed with the 
 form of a legal exemplification, it must be shown to possess some 
 other requisite to entitle it to credit; (5) as, by proving the signa- 
 ture of the Judge upon the judgment. (6) 
 
 An exemplification of a foreign judgment, that is, a copy au- Proof of for- 
 ihenticated under the seal of the court, is evidence of the judgment eign judgment. 
 in the courts of this country. (7) But a document, purporting to 
 be a copy of a judgment, and to be made by the officer of the court 
 is not adniissible. (8) (a) 
 
 The effect of an award has been before mentioned. (9) (6) In Award, 
 an action upon an award, it will be necessary to prove both the 
 subn)ission and the execution of the award, (c) And in gene- 
 ral, whether the validity of the award comes into question directly, 
 
 (1) Davis V. Willi ms, 13 East, (5) 2 Starkie, N. P. C. 11. 
 
 232. Ray v. Clarlc, ib. 238, n. (a.) (6) Alves v. Bunbury, 4 Campb. 2S. 
 
 (2) 2 Hale, P. C. .51, 284. (7) 2 Starkie, N. P. C. 11, 12, by 
 
 (3) Henry v. Adey, 3 East, 221. Lord Ellenborougli and Bailey, J. 
 Buchanan v. Kucker, 1 Campb. 63. (8) Appleton v. Lord Braybrooke, 
 Flindtv. Atkins, 3 Campb. 215. 6 Maule & Selw. 34. 2 Starkie, N. P. 
 
 (4) Cavan v. Stewart, 1 Stark. N. P. C. 6, 7, S. C. 
 
 C. 525. (9) See ante, p. 380. 
 
 ^2) See Note 770, p. 1120. (a) See Note 771, p. 1120. (6) See Note 772, p. 
 1135. (c) See Note 773, p. 1135.
 
 ^00 Of the Proof of Records [Ch, 5. 
 
 Award. OF Only incidentally, the submission of all the |)arties ought to be 
 
 regularly proved, [d) Thus, where there had been a deed of refe- 
 rence, between a creditor and several partners, of all copartnership 
 accounts, and of all matters in difference between the parties or 
 any two of them, and an action of trover was afterwards brought by 
 the creditor, the assignee under a commission of bankruptcy of one 
 of the partners, (in which action the plaintiff produced the award 
 and deed of reference, as evidence of a separate debt due to him 
 from the bankrupt,) the Court of King's Bench held, that it was 
 indispensably necessary to prove the execution of the deed by all 
 the parties: for this was a reference of the aggregate accounts be- 
 tween all and each of the partners, and the consideration to each 
 for entering into the submission was, that each party's accounts 
 should be liquidated, not only as to one, but as to all; the access 
 sion of all, therefore, ought to be proved; and, without such proof, 
 the arbitrator would not appear to have competent authority to de- 
 cide the whole question between the parties. (1) 
 
 missioners. 
 
 Awardofcom- If the award, given in evidence, is the award of commissioners 
 under an act of Parliament, the act ought to be produced, for the 
 purpose of showing the authority of the commissioners, and that 
 the award is conformable with the provisions of the statute, and, if 
 the act is a private act, it must be regularly proved. (2)(e) If 
 previous notices are required to be given, before the commis- 
 sioners make their award, proof of the regularity of such no- 
 tices will not in ordinary cases be necessary. But if the circum- 
 stances of the case raise a presumption, that all has not been 
 regularly performed, then it will be incumbent on the party to 
 prove the due performance. Thus, on the trial of an indict- 
 ment against a parish for not repairing a highway, which was 
 reputed to lie within the parish, and had been from time to time 
 repaired by the inhabitants, an award made by commissioners of 
 inclosure, awarding the highway to be situate in a different par- 
 ish, was adjudged not to be admissible evidence for the defend- 
 ants, because it was not proved, that the commissioners had given 
 the previous notices, required by the inclosure act, to the parishes, 
 who would be affected by their award; the circumstance of the 
 
 (1) Antrani v. Chase, 15 East, 209. (2) See ante, p. 384. 
 
 (d) See Note 774, p. 1135. (e) See Note 775, p. 1136-
 
 CI». 5.] and Judicial Proceedings. 401 
 
 (lefendanis having coiuimicd lo repair after the award, raised a Fore ign law. 
 presumption, that there had not been such a notice as the act of 
 parliaiDent required. (1) 
 
 The existence of a foreiji;n law is a fact to be proved, hke any Proof of for- 
 
 " _ ' ^ eign laws. 
 
 Other fact, by appropriate evidence. Without such proof, our 
 courts cannot take notice of foreign law. (2) The written law 
 of a foreign state is to be proved by a copy of the law, properly 
 authenticated. (3) The unwritten law of a foreign state, (having 
 first been ascertained to be |>art of the unwritten law, by witnes- 
 ses professionally converi^ant with the laws of the state,) may 
 be proved by the parol evidence of witnesses, possessing compe- 
 tent professional skill. (4) (/) In the admirable judgment, deliv- 
 ered in the Consistoiy Court of London, in the case of Dai- 
 ry mple V. Dairy mple, (5) Sir W. Scott, after observing, with ref- 
 erence to the law of marriage in Scotland, that the determina- 
 tion of the question must be taken from the authorities of that 
 country, proceeds thus: — " The authorities to which I shall have 
 occasion to refer, are of three classes; first, the opinions of the 
 learned professors, given in the presenter similar cases; secondly, 
 the opinions of eminent writers, as delivered in books of great 
 legal credit and weight ; and, thirdly, the certified adjudication .^ 
 
 (1) R. V. Inhabitants of Haslingfield, 3 Esp. N. P. C. 58. Miller v. Heinriclc, 
 2 Maule & Selw. 558. 4 Campb. 155.* 
 
 (2) 1 P. Wil. 431. 3 Ves. & Beam. (4) Miller v. Heinrick. 4 Campb. 
 99. Ganer v. Lady Laneborough, 155. See 3 Esp. N. P. C. 58. 
 Peake. N. P. C. 17. (5) Dr. Haggard'.'! Reports, vol. ii. 
 
 (3) Gen. Picton's case, 30 Howell's p 81. 
 St. Tr. 491. Boehtlinek v. Schneider, 
 
 * In the case of Boehtlinek v. Inglis, 3 East, 3Sl,tlie counsel for the plain- 
 tiff, after proving one of the mercanlile navigation-laws of Russia, offered in 
 evidence a certificate, (signed by the presiding Judge of the Custom-house 
 Court in Russia, and bearing tlie seal of the Court,) which purported to have 
 been delivered by the Judges lo tlie plaintiff, with reference to the suit then 
 commenced in this country; the certificate set out the navif^ation-law, and 
 contained the opinion of the Judges of the Custom-house Court on its con- 
 struction: the plaintiff's counsel insisted, that the certificate was admissible in 
 evidence, not simply as a report of the opinion of the Court, but as an adju- 
 dication of the law certified under the seal of Court, and as entitled to the 
 same credit as the exemplification of a foreign judgment. On the other side 
 it was argued, that the certificate was merely parol exposition of a written 
 law, and entirely extra-judicial; and liieicfore not admissible. The Court 
 of King's Bench decided the cufc upon oilier pcintf, and did not express any 
 opinion upon the question, as to the admissibility of the proposed evidence. 
 The case of Middleton v. Janveriu, in the Consi.slory Court of London, reported by 
 Dr. Haggard, vol. ii. p. 442, may be referred to upon this subject. 
 
 (/) f?ee Note 776, p. 1136. 
 Vol. I. 51
 
 402 Of the Proof of Records, ^c. [Ch. 5. 
 
 roreign law. of the tribunals of Scotland upon these subjects. I need not say, 
 that the last class stands highest in the point of authority; where 
 private opinions, whether in books or writing, incline on one side, 
 and public decisions on ilie other, it will be the undoubted duty of 
 the Court, which has to weigh them, stare decisis.'' 
 
 Lnwof colony. jfa question should arise, with respect to a colony, whether the 
 law of the nioiher-country is the law of the colony, the statement 
 of text-writers may be admitted. In General Picton's case, (1) 
 where such a question was suggested as likely to occur. Lord El- 
 lenborough said, "The text-writers furnish us with their state- 
 ment of the law; and that would certainly be good evidence upon 
 the same principle, which renders histories admissible. There is a 
 case," continued Lord Ellenborough, " in which the history of the 
 Turkish empire by Cantemir was received by the House of Lords 
 and received after some discussion; I shall therefore receive any 
 book, that purports to be a history of the common law of Spain." 
 
 The practice of a court of justice in a foreign country may be 
 proved by witnesses professionally acquainted with that prac- 
 
 regdTuons! t'^^- (2) (g) The commercial regulations, of a foreign country, 
 ought to be proved by well authenticated copies of such regula- 
 
 Acis of state, tjons. (3) The acts of state, also, of a foreign government can on- 
 ly be proved l>y copies of such acts, jjroperly authenticated. (A) 
 Thus, in the case of Richardson v. Anderson, (4) where the coun- 
 sel on the part of the defendant proposed to give in evidence a 
 book purporting to be a collection o( treaties concluded by Ameri- 
 ca, and to be published by the authority of the American govern- 
 ment; and it was proposed, fuitlier, to prove, by the American 
 minister resident at this court, that the book produced was the 
 rule of his conduct; this evidence was offered, as equivalent to a 
 regular copy of the archives in Washington: but Lord Ellenbo- 
 rough rejected the evidence, and Ireld tliat it was necessary to have 
 a c'py examined wiili iIk; archives. 
 
 (1) 30 Howell's St. '!> 492. (o) By Ld. Ellenborough, in Gen. 
 
 (2) Buchanan v. Rucker, I C.iiiijiIj. Picton's case, 30 Howell's tSt. Tr. 491. 
 66. (4) I Campb. 65, (a.) 
 
 (g) See Note 777, p. 114.'>. (/;) See Note 77S, p. 1145.
 
 Ch. 6.] Of Public Writings, not Judicial. 40J 
 
 In the case of Lacon v. Higgins, (1) Lord Tenterdei) admitted a Foreign law. 
 copy of the civil code of France, produced by tlie French con- 
 sul, and declared by him to be an authentic copy of the law of 
 France, as recorded by the French courts, to be good evidence of 
 the French law. 
 
 (1) K. B. sitt. nfter M. T. 21 Dee. 1822. 
 
 CHAP. VI. 
 
 Of Public fyritings, no/ Judicial. 
 
 The next species of evidence, which the subject leads us to 
 consider, relates to such public writings as are not judicial. In 
 treating of this part of the subject, it is proper to mention some 
 of the principal documents of this description; and then to pro- 
 ceed to the enquiry, how a party, who wishes to use public writings 
 in evidence, may obtain an inspection. 
 
 The most ancient public document in the kingdom is Domes- Domesday- 
 day-book, consisting of two volumes, kept in the receipt of the 
 Exchequer. They contain a general survey of all the counties 
 in England, excepting the four northern, and were compiled 
 soon after the Conquest, for the purpose of ascertaining the 
 ancient demesne lands, which were the soccage tenures first in 
 the hands of Edward the Confessor, and afterwards of William 
 the Conqueror. This has been always considered a book of the 
 greatest authority; and if a question should at any time arise, 
 whether a manor is ancient demesne, the trial is by inspection 
 of Domesday-book. (1) These volumes have of late year^ been 
 printed at the expense of government, in consequence of an ad- 
 dress from the House of Lords; and the uoik is said to be 
 executed with the most scru|)uloMS fidtTity and correctness. (2) 
 Another ancient survey, wljich ascertains the extent of the king's 
 ports, is also deposited in the Exchequer. (3) These surveys 
 are recognised and treated as authentic documents in courts 
 of justice, having been made by the authority and order of the 
 
 (1^ Hob. 188 Gilb. Ev. 69. inons on Public Records, Appendi.x, 
 
 (2) First Rpport of House of Com- A. 1, a. 
 
 (.3) Gilb. Ev. 69.
 
 404 Of Public Writings, not Judicial. [Ch. 6. 
 
 Surreys. government of the country on public occasions, and on subjects of 
 
 public interest. 
 
 clesScal bel "^^^^ ^sXov Beneficiorum, or pope Nicholas's Taxation, is anoth- 
 nefices. er document of a public nature. In the year 1288, Pope Nicholas 
 
 A. D. 1291. ' the Fourth, to whose predecessors in the see of Rome the first-fruits 
 and tenths of all ecclesiastical benefices had for a long time been 
 paid, granted the tenths to King Edward the First for six years, 
 towards defraying the expense of an expedition to the Holy land; 
 and, that they might be collected to their full value, a taxation by 
 the king's precept was begun in that year, and finished for the 
 province of Canterbury in the year 1291, or the 20th year of the 
 reign of Edward the First; and for that of York in the following 
 year; the whole being under the direction of the Bishops of Win- 
 ton and liincoln. (1) This taxation of Pope Nicholas is an in- 
 portant document, because all the taxes, as well as those paid 
 to our kings as those to the Pope, were regulated by it, till the 
 survey made in the twenty-sixth year of Henry the Eighth; and 
 because the statutes of colleges, which were founded before the 
 Reformation, are also interpreted by this criterion, according to 
 which their benefices under a certain value are exempted from 
 the restriction in the statute of the twenty-first of Henry the 
 Eighth concerning pluralities. (2) The taxation is evidence of 
 the rate and value, at which the persons, employed in that tax- 
 ation, thought fit at that time to estimate the living. (3) The 
 original is kept in the office of the king's remembrancer in the 
 Exchequer. 
 
 26 H. s. Anew Valor Beneficiorum was instituted in the twenty-sixth 
 
 year of Henry the Eighth, when the first-fruits and tenths of 
 every ecclesiastical promotion were annexed to the revenue of 
 the crown. (4) To ascertain their value, ecclesiastical surveys 
 were taken, by virtue of commissions in the king's name issu- 
 ing under the great seal; (5) and these surveys are admitted as 
 evidence of their amount at that period, although they are gene- 
 
 (1) See first Report of House of (3) By Lord Redesdale, Bullen v. 
 Commons on Public Records, p. 15. Michel, 2 Price, 477. 
 
 (2) Humphreys v. Knight, Cro. (4) St. 26 H. 8, c. 3. 
 Car. 455. 2 Lutvv. 1305. Stump v (5) Sect. 3 & 10. 
 Aylifle, 2 (iwill. 536. 
 
 Vnior benefi- 
 ciorum.
 
 Ch. 6.] 0/ Public Writings, not Judicial. 405 
 
 rallv considered as estimating the value much too low. (5) It is Surveys, 
 to be observed, that the Valor Beneficioruni of the reigu of Hen- 
 ry the Eight in no instance mentions the existence of a modus. 
 The commissioners appear not to have taken notice of any ex- 
 isting modus, or immemorial agreement between the parson and 
 the occupiers; but to have calculated the value of the first-fruits 
 and tenths, without considering the question of modus, or any oth- 
 er legal exemption, 
 
 Surveys of the possessions of religious houses, previous to the 
 dissolution of the monasteries, are admissible in evidence, upon the 
 same principle; and, in the case referred to, were admitted, to 
 show what tithes belonged to the rector, and what to the vicar. (2) 
 These surveys are admissible, although the commissions, under 
 which they were taken, are not to be found. (3) 
 
 Surveys of the church and crown lands were taken by comniis- Parlinmentary. 
 sioners in the time of the Commonwealth, under the authority of 
 acts or ordinances of the parliament; and copies of these surveys 
 were deposited in many of the cathedrals. 'I'he originals would 
 have been good evidence of the particulars of the surveyed estates, 
 upon the same principle as the other public surveys which have 
 been before mentioned; but as they were destroyed at the time 
 of the great fire in London, the copies have been admitted, as 
 evidence, in the place of the original surveys, provided they have 
 been kept in unsuspected repositories. (4) The parliamentary sur- 
 veys have the credit of being taken with extreme accuracy and 
 minuteness. The circumstances, therefore, of these surveys being 
 silent as to a supposed modus, has been considered to be strong 
 evidence against its existence. (5) 
 
 The history of the Inquisitiones J^onarum is thus given in the Inquisiiiones. 
 Report of the Commissioners of Public Records, before referred 
 
 (1) 3 Gwill. 856, 1240. 4 Trice, (4) Underbill v. Durham, 2 Gwill. 
 221. 5 Price, 377. 2 Price, 435 542. Green v Proude, 1 Mod. 117. 
 
 (2) Vicar of Kellington v. Trin. Pullon v. Michel, 4 Dow. 325. 2 
 Col. Cambridge, 1 Wils. 170. Price, 399, S. C. 
 
 (3) 1 Wils 170. Biigshaw v. Bisb- (5) 1 1 East, 284 1 .Maule & Selw. 
 op of Bangor, cited in Underbill v- Dur- 294 
 
 ham, 2 Gwill. 542.
 
 406 Of Public Writings, 7Wt Judicial. (Ch. 6. 
 
 Surveys, to. (1) A grant having been made by parliament to Edward ilie 
 
 Third, in the fourteenth year of his reign, of the ninth lamb, 
 ninth fleece, and ninth sheaf, assessors and venditors were there- 
 upon appointed, and directed, by three commissions under the great 
 seal, for every county in England, to assess and sell these nintlis. 
 The Inquisiliones .,\onaruwi were taken under the third commis- 
 sion, whereby the commissioners were directed to levy the ninth 
 of corn, wool, and lambs, in every parish, according to the value 
 upon which churches were taxed, (this means Pope Nicholas's 
 taxation,) if the value of the ninth amounted to as much as the 
 tax; but should the value of the ninth be less than the tax, they 
 were directed to lay only the true value of the ninth, and to dis- 
 regard the tax; and to gain correct information of these facts, they 
 were directed to take inquisition upon the oath of the parishioners, 
 in every parish. These inquisitions form the records called the In- 
 quisitioties J\%narum. 
 
 Journals of The Journals of the Lords or Commons are evidence of their 
 
 proceedings, (i) An entry in the Journals of the House of Lords, 
 stating, that a judgment below has been reversed, is evidence of 
 the fact of reversal; (2) and the Journals have been admitted 
 to prove an address from the House of Lords to the King, and 
 the answer of the King. (3) Thus, the address of the Lords 
 to the King, and the King's answer, proved by the Journals, 
 have been admitted as evidence of an averment in an infor- 
 mation, that certain differences had existed between the King of 
 England and the King of Spain. (4) Here, it is to be observed, 
 the fact related purely to a matter of state, and therefore ad- 
 mitted of this kind of proof. But a resolution of either House 
 is not evidence of the truth of facts there affirmed; and there- 
 fore in the case of Titus Gates, who was charged with having 
 committed perjury on the trial of persons suspected of the po- 
 pish plot, a resolution in the Journals of the House of Com- 
 mons, asserting the existence of the plot, was not allowed to be ev- 
 idence of that fact. (5) An entry in the Journals may be proved 
 
 (1) Appendix, (L. 2,) p 146. spe the case of the Seven Bishops, 4 
 
 (2) Jones v. Randal, Cowp. 17. St. Tr. 39. 
 
 (3) Franklin's case, 9 St. Tr. 259, (4) See note (3,) supra, 
 cited by Duller, J. 5 T. R. 415. And (.5) 4 St. Tr. 39. 
 
 (t) See Note 779, p. 1145.
 
 Ch. 6.] 0/ Public Writings, not Judicial. 407 
 
 by an examined copy compared with ilie original; bnt cannot be Gazettes, 
 proved by ihe printed Journals. (1) 
 
 The public acts of government, and acts by the king in his Gazettes, 
 political capacity, are commonly announced in the Gazette, 
 published by the aulhorily of the Crown; and of such acts 
 announced to the public in the Gazette, the Gazette is admit- 
 ted in courts of justice to be good evidence. A proclamation Proclamation, 
 for reprisals, published in the Gazelte, is evidence of an exist- 
 ing war,* Proclamations for a public peace, or for the per- 
 formance of quarantine, and any acts done by or to the king 
 in his regal character, may be proved in this manner; (2) and 
 upon the same principle, articles of war purporting to be printed 
 by the king's printer, are allowed to be evidence of such arti- 
 cles. (3) A Gazette, in which it was stated, that certain ad- 
 dresses had been presented to the King, has been adjudged to be 
 proper evidence, to prove an averment of that fact in an inform- 
 ation for a libel; (4) for they are addresses, said Lord Kenyon, 
 of different bodies of the King's subjects, received by the King 
 in his public capacity, and they thus become acts of state. 
 And in the late case of the King v. Sutton, (5) the Court of King's 
 Bench determined, that the King's proclamation, (which recited, 
 that it had been represented, that certain outrages had been 
 committed in different parts of certain counties, and offered a 
 reward for the discovery and apprehension of offenders,) was 
 
 (1) Lord Melville's case, 29 Howell's cles of capitulation, for the surrender of 
 St. Tr. 683. an island, were proved by the Gazette. 
 
 (2) 5 T. R. 436, 443. Quelch's (3) R. v. Withers, cited by Buller, 
 case, 8 St. Tr. 212. Dupays v. Shep- J., 5 T. U. 446. See stat. 55 G. 3, c. 
 herd, Rep. temp. Holt, 296. Attorney 108, s. 36. 
 
 General v Theakslone, 8 Price, 89; (4) R. v. Holt, 5 T. R. 436. 
 
 General Piclon's case, 30 Howell's (5) 4 Maule & Selw. 546. 
 St. Tr. 493; in which case the arti- 
 
 * Public notoriety is gnfficient evidence of the existence of a war. Foster, 
 Disc ch. 2, s. 12, p. 219. 11 Vesey, 292. Evidence, therefore, was not pro- 
 duced to prove ihis fact, t! ough averred in the indictment, in the cases of 
 .Sir John Friend and Sir W. Parkyn, in Cook's case, and Vaughan's case, 
 which are reported in tlie State Trials. A declaration of wai by a foreign govern- 
 ment, transmitted to this country by the English ari,ba.ss;idor, and produced from 
 the Secretary of State's othce, has been admitted as evidence of the commencement 
 of hostilities between that government and another state. Thelluson v. Coslin^ 4 
 Esp. N. P. C. 266. Case of Eliza Ann and others, 1 Dodson, Adm. Rep. 244.
 
 -i^'^ Of Public Writings, not Jmlidal. [Ch. G. 
 
 Parish regis- admissible in evidence, as proof of an introductory averment in an 
 ; information for a libel, that acts of oiitraj^es of that particular de- 
 scription had been committed in those parts of the country. 
 
 Gazettes are not evidence of private titles or private interests, 
 as of a presentation, or of a grant by the King to an individual, 
 which have no reference to the affairs of government; nor is a 
 Gazelle evidence to prove an appointment to a commission in the 
 army. (1) 
 
 b!!nkTuptcy Notices relating to bankruptcies are cons'.antly inserted in 
 
 the Gazette; and ihey are made sufficient by act of parliament. 
 Notices, also, of the dissolution of partnerships, are very com- 
 monly inserted. An advertisement in the Gazette, announcing a 
 dissolution, has been admitted as evidence of a public notifica- 
 tion of that fact; but such evidence is of little avail, unless it 
 be shown, that the party, entitled to notice, was in the habit of 
 reading the Gazette. (2) And such an advertisement in a com- 
 mon newspaper is not even admissible, without proof that the party 
 took in that paper. (3) If the paper, containing the advertisement, 
 is proved to have been read by the party, or if it is proved only to 
 have been delivered in the usual course at the house of the party, 
 the jury may reasonably be instructed to consider, whether the 
 attention of a tradesman, in reading a newspaper, was not likely 
 to be attracted by notices of the dissolution of partnerships, to 
 which the attention of others might not be directed; and it is a 
 question for the jury to determine, whether, under all the circum- 
 stances of the case, the party had actually received notice of the 
 dissolution. (4) ( j) 
 
 ters. 
 
 Parish regis- Parish registers are evidence of births, marriages, and burials. 
 Registers are_ directed to be kept as public books, and are ac- 
 companied with all ihe means of authenticity. " They are in 
 
 (1) Kirwan v. Cockburn, 5 Esp. N. See iiiso Grahnin v. Hope, Peake, N. P. 
 P. C. 233 R V. Gnrtlner, 2 Campb. C. 154. (iorham v. Thompson. Peake, 
 513. N. P. C. 42. 
 
 (2) Leeson v. Holt, 1 Stark. N. P. C. (3) 1 Starkie, N. P. C. 136. 
 
 186. (lodfrey v. Macauley, Peake, (4) Jenkins v. Ulizard and another, 
 
 N. P. C. 155. 1 Esp. N. P. C. 371, H I Starkie, N P. C. 420. 
 C. Nevvsoino v. Coles, 2 Campb. filit- 
 
 (_;•) See Note 780, p. 1145.
 
 Ch. ().] Of Public fVr itings, not Judicial, 409 
 
 the nature of records," said Lord MansOeld, "and need not be P'fish regis- 
 
 tsrs- 
 
 produced, or proved by subscribing witnesses." (1) To prove a 
 
 marriage, for instance, an examined copy of an entry is suffi- 
 cient; tliis is proof of a marriage at a certain tinne, between two 
 parlies describing themselves by the names and places of abode 
 there mentioned. 
 
 Tlie keeping of registries for entries of births and christenings 
 commenced in the thirtieth year of the reign of Henry the Eighth, 
 and was afterwards enforced by injunctions from Edward the Sixth 
 and from Queen Elizabeth. (2) Registers also for the recording of 
 burials and weddings were directed to be regularly kept, by one of 
 the canons of the church. (3) But the fullest directions are given How kept, 
 by the marriage-aci; (4) which, after requiring registers to be kept 
 as public books in every parish, for the purpose of registering mar- 
 riages, enacts, that " imtr.ediately after the celebration of every 
 marriage, an entry thereof shall be made in such register, in which 
 entry or register it shall be expressed, that the marriage was cele- 
 brated by banns or licence; and if both, or either of the parties 
 married by licence be under age, with consent of the parents or 
 guardians, as the case shall be; and shall be signed by the minis- 
 ter with his proper addition; and also by the parties married, and 
 attested by two credible witnesses." 
 
 By the canons of 1603, copies of parish Registers in every Copies regis- 
 diocese ought to bo regularly transmitted once in every ""^^ 
 year to the diocesan or his chancellor; (5) a regulaiion ex- 
 tremely '^important, for the purpose of guarding the evidences 
 of title and pedigree, but which has been so generally neglected 
 as to make it necessary for the legislature to interpose, and 
 pass an act for their better preservation. It is by this statute 
 enacted, (6) that copies of the register books, verified by the 
 officiating minister of the parish, shall be transinitted annually 
 
 (1) Birt V. Barlow, 1 Doug. 173. A case of Drake v. Smyth and others, be- 
 
 book, entitled The Parish llegi^ster, pro- fore ihe Lord Chief Baron. 5 Price, 
 
 duced from a chest in the vicarage 369, 372, 377. 
 
 house, and containing ancient entries (2) 3 Burn. Eccl. L. 275. Gilh. Ev. 
 
 respecting tithes due to the vicar, one 68. 
 
 of which entries purported to be made (3) Can. 70. 3 Burn. loc. oil. 
 about 150 years ago by the vicar of that (4) St. 26 G. 2, c. 33, s. 14. 
 time, was admitted in evidence on a (5) Can. 70. Gibsou's Codex, p. 
 
 question of tithes between a succeeding 204 
 vicar and occupiers of the parish, in the {6) Stat 52 G. 3, c 146, g. 7. 
 
 Vol. I. 52
 
 410 
 
 Of Public Writings, not Judicial. [Ch. 6. 
 
 Parish regis- by the cliurcliwaidens, after they or one of them shall have signed 
 
 the same, to the registrars of the diocese within which the church 
 
 is situated, (/c) 
 
 Effect of. An entry of marriage in the parish register, made in the form 
 
 prescribed by the act of parliament, is evidence that the persons 
 therein named were married, on the day specified, by banns or 
 licence, as tiie case may be. Such an entry is not essential to the 
 validiiy of a marriage; so that, if it has been expressed in the 
 regular form, the only consequence will be, thai it cannot be ad- 
 mitted as evidence of the marriage, which must, therefore, be 
 established by some other medium of proof. 
 
 Bigamy. In a prosecution for bigamy, it will not be indispensably necei- 
 
 sary to prove the registration of either marriage: it is sufficient to 
 prove the fact of marriage by a person present at the time. (1) (/) 
 
 Identity of 
 party. 
 
 In order to prove that the parlies described in the register, are 
 the same parties whose marriage is in question, it rnust obviously 
 be unnecessary to call either of the subscribing witnesses to the 
 register; any evidence which satisfies the jury concerning their 
 identity, will be sufficient; as, by proof of the similarity of their 
 hand-writing, or that the bell-ringers were paid by them for ring- 
 ing after the marriage, or by proof of other circumstances to ascer- 
 tain the persons. (2) (m) 
 
 Register i ( 
 ohristenir-.s 
 
 An entry in a register of christenings, stating the year of the 
 birth, is not evidence in support of a plea of infancy: (3) and the 
 mere entry of christening, unaccompanied by any evidence show- 
 ing that the person was young at the time of christening, does not 
 prove the fact of birth in the parish. (4) (n) 
 
 Books not 
 cognized. 
 
 A book of Fleet nuirriages rannct be read as a register, not 
 having been compiled imdtM- puldic authority, and is not legal 
 
 (1) R. V Allison, Rus.s. &. !!v. Tr. (S) Wihen v. Law, 3 Stark. N. P. 
 C. 109. ' C. 6;;. 
 
 (2) Bull. N. P. 27. (4) R. v. North Petherton, 5 Barn. 
 
 & Cress. 508. 
 
 (fe) See NoleTSl, p. 1147. {I) See Notn :S2, p 1147. (^m) Sec Note 783, 
 j>. 1149. (n) See Note 784, p. 1I4'<>.
 
 Ch. 6.] Of Public Writings, not Judicial. 41 1 
 
 evidence of a marriage. (l)(o) A copy of a register of baptism, Ship register, 
 kept in the island of Guernsey, is not admissible in our courts of 
 law; (2) nor is the copy of a register of a foreign chapel admitted 
 here as proof o." a marriage abroad. l3)(p) 
 
 Public registers are required by act of parhament to be kept for R'-g'stora of 
 
 . . . ships. 
 
 the registering of ships; (1) and the register and certificate of reg- 
 
 isr^er are conclusive evidence of want of title, against those who EfTbctasto 
 
 , • ■ . ,|., . . \- r persons n Jt 
 
 are not named m the register. 1 lius. m an action on a policy ol f,,,nied. 
 insurance on freight, where the interest in a shi[) and its earnings 
 were alleged to be in four |jersons, who were partners ia trade, two 
 only of whom were named as owners in the register, in was decid- 
 ed, that the action could not be maintained, alihcrgh it was 
 proved as a fact, that the ship had been paid for by all the four 
 partners: for as the plaintifls claimed the freiglit only in right of 
 ownership, they could not recover without ])roving that riglit; and 
 it appeared conclusively from the register, tl.at all the four partners 
 had not a legal title to the ship. (.5) 
 
 The register of a ship, then, is conclusive evidence, that persons, ^'°^ evidence 
 , ° , ' , ,,,,.. of ownership, 
 
 •who are not there named as owners, cannot legally be joint perse. 
 
 owners; but the converse of the rule is not true, namely, that 
 all persons who are named as owners m the register, arc liable 
 as such. Such registers are not recognized as public docu- 
 ments, to prove the ownership; and they are not evidence to 
 fix the parlies therein named as owners, in actions against shem, 
 unless they are shown to have been made by their assent or 
 recognized I'y them. This point was decided in the case of 
 Tinkler v. Walpole; (G) uhicii was an action for goods sold 
 
 (1) Reed V. Piisser, Peake, N. P. C. TOS. 14 East, 229. M.irsii v. Robiii- 
 231. Lloyd v. Pussingham, 1 Coop- son, 4 Esp. 9S. 
 
 er, Ch. C. 155. (6) 14 East, 226. Cooper v. Souih 
 
 (2) Huet V. Le Mesurier, 1 Cox. nnd others, 4 Taunt. 802. Smith v. 
 <"aa. 275. Whitehead v Wynne, I Fnge, 'A Campb. 450. Fniser v. Hop- 
 Jac. & Walk. 483. kins, 2 Taunt. 5. 2 C.imph. 170, S. C . 
 
 (3) Leader v. Bany, 1 Esp. N P C. 'J'eed v. Martin, 4 Campb. 90. Upon 
 3S3. the same principle, an entry in books, 
 
 (4) St. 26 G. 3, c 65. St 34 G kept in the oflice for licensing sta<re- 
 3, c. 63. The reader is referred, on coac'ncs, is not any proof, liiat per- 
 this subject to Lord Tcntcrdcn's sons, named in the lietcnce, are own- 
 Treatise un shippirij^, cli. 2, p. 27. crs of a roarli. S:rotlier v. W'illan, 4 
 
 (5) Camden v. Anderson, 5 T, R. Cnmpb. 24. See also Ellis v. Wat- 
 
 son, 2 Stnrkie, N. P. C. 45S, 47.8. 
 
 (o) See Note 785, p. 1149. {p) Se*e Note 786, p. 1149,
 
 412 Of Public Writings, not Judicial. [Ch. 6. 
 
 Ship register. 3,)^ delivered for the use of a ship, against ilie defendant as one of 
 the owners. At ihc trial of the cause, in order to prove the own- 
 ership of the defendant, two registers were offered in evidence, 
 purporting to have heen made on the oaths of the managing 
 owner, wlio gave the order for the goods, and of two other part- 
 owners, swearing that they and others named, including the de- 
 fendant, were owners of the ship; and it was insisted that these 
 registers on account of their authenticity as public documents, 
 required for public purposes, and obtained under the sanction of an 
 oath, ought to be considered at least prima facie evidence to prove 
 the defendant a part-owner. But Lord Ellenborough, C. J., who 
 tried the cause, ruled that the evidence was not admissible, unless 
 it could be shown that the defendant had assented to the register, 
 or at least had recognized it. And this opinion was afterwards 
 confirmed by the other Judges of the court. 
 
 Upon the same principle, a register is not of itself evidence of a 
 joint ownership, in support of the defendant's plea, that other per- 
 sons, there named, are jointly liable with him; (1) nor is it evi- 
 dence, that the ship is British-built, as there described. (2) So, in 
 an action brought by the plaintiff as agent, on a policy of insurance, 
 the register is not evidence to prove an averment, that the interest 
 in the ship is in the persons there described. (3) The legislature 
 has made the registration necessary to complete a title, but this 
 Proof of pro- does uot make it of itself proof of the title. Property in a ship may 
 per y m sups. ^^ proved uow, as it was proved before the acts of parliament relat- 
 ing to registers: as, for example, by proof of acts of ownership, or 
 by proving actual possession in the i)arty, or in those to whom he 
 has committed it, or in tliose from whom he has himself derived 
 his title. Any one of these media of proof is sufficient prima /acie 
 evidence of ownersi)ip, without the aid of documentary proof or of 
 title-deeds (4) 
 
 (1) Flower v. Young. 3 Cainpb. (4) 4 Taunt. 65 7. Robertson v. 
 240. rrench, 4 East, 136. Hubbard v. 
 
 (2) lleusse v. Meyers, 8 Campb. Johnston, 3 Taunt. 177, 203. Amery 
 475. V. Rogers, 1 Esp. N. P. C. 207. 
 
 (3) Pirio V. .Anderson, 4 Taunt Thomas v- Foyle, 5 Esp. N. P- C 88 
 652. 
 
 (9) See Note 787, p. 1161.
 
 Ch. 6.] Of Public Writings, not Judicial. 413 
 
 It is enacted by st. 17 G. 2, c. 38, s. 14, that true copies of all ^°°J;^J^"^P"»^- 
 
 rates and assessments, made for the relier of the poor be entered in 
 
 a book to be provided for that purpose by the chiirch-wardens and 
 overseers of the poor of every parish, &c. who shall take care, that 
 such copies be entered accordingly within fourteen days after all 
 appeals from such rates are determined, and shall attest the same 
 by putting their names thereto; and every such book shall be 
 carefully preserved by the church-wardens, &c., for the time being 
 or one of them, in some public place, in every such parish, &c., 
 vvhereunto all persons assessed or liable to be assessed may freely 
 resort, and shall be delivered over from time to time to the new 
 and succeeding church-wardens, &c., as soon as they enter into 
 their offices, and shall be produced by them at the general or quar- 
 ter sessions, when any appeal is to be heard or determined. 
 
 The Stat. 42 G. 3, c. 46, enacts, that the overseers of the poor Book for par- 
 of every parish shall provide and keep a book at the expense of the " 
 parish, and enter therein the name of every child, who shall be 
 bound out by them respectively as an apprentice, together with the 
 several other particulars, in the manner and form required by this 
 act; and every such entry shall be produced and laid before the 
 two justices of the peace, who shall signify their assent to the in- 
 denture of apprenticeship, at the time when such indenture shall 
 be laid before them for that purpose, and each entry shall, if approv- 
 ed of, be signed by them according to the prescribed form. And 
 in the third section, it is enacted, that any person may at all sea- 
 sonable hours inspect such book in the hands of the said overseer, 
 and take a copy of such entry; and every such book shall be deem- 
 ed to be sufficient evidence in all courts of law in proof of the ex- 
 istence of such indentures, and also of the several particulars speci- 
 fied in the register respecting such indentures, in case it shall be 
 proved, to the satisfaction of the Court, that the indentures are lost 
 or destroyed. 
 
 The register of the Navy-office has been admitted in evidence Booksin pub- 
 to prove the death of a sailor; (1) the book from the master's '° ° '^^^' 
 
 (I) Bull. N P. 24!). Rhode's case, 5 Esp. N. P. C. 117. See Barber v. 
 1 Leach, Cr. C. 29 VVailacc v Cook, Holmes, 3 Esp. N. P. C 190.
 
 41-i Of Public IVritings, not Judicial. [Ch.6. 
 
 Books la pub- office ill the Court of King's Bench, to prove a person one of the 
 
 \_ altornies of that court; (1) and the log-book of a man of war, which 
 
 convoyed a fleet, to prove the time of the aonvoy's sailing. (2) (r) 
 Bank-books are good evidence to prove the transfer of stock. (3) (s) 
 
 On a prosecution for a hbel pubhshed concerning a person in 
 ^. , . his office of treasurer of a parish, an entry in a vestry-book, staling, 
 that he was elected at a vestry duly held in pursuance of noiice, 
 has been considered sufficient evidence, to support an allegation in 
 the indictment, that he was duly elected treasurer. (4) {t) So, in 
 an action for disturbing the use of a pew in a church, an old entry 
 in the vestry-book, staling that the pew had been repaired by the 
 then owner of a messuage, (under whom the plaintiff claimed,) 
 has been admitted as evidence of his right; being made by the 
 church-wardens on a subject within the scope of their official au- 
 thority, and as showing the reputation in the parish respecting thi? 
 right. (5) 
 
 Prison-book. The day-book of a public prison containing a narrative of the 
 
 transactions of the prison, has been received upon the same princi- 
 ple, as proof of the time of the prisoner's commitment or dis- 
 charge: (6) but it would not be admissible to prove the cause of 
 his commitment. (7) The distinction between these cases is, that 
 in the former there was no document besides the one produced, 
 and no other evidence of ihe fact in question could be given, ex- 
 cept perhaps the parol testimony of some person, who might have 
 happened to be in prison at the lime; but in the last case, the 
 committitur, from which the entry was inserted in the book, might 
 have been produced, and that would have been better evidence of 
 the cause of commitment, (m) 
 
 An entry in the book kept at Lloyd's, stating the capture of 
 Lloyd's. a ship, is evidence of that fact; but such entry is not a sufficient 
 
 (1) R. V. Crossley, 2 Esp. N. P. C. (4) R. v. Martin, 2 Campb. 100. 
 524. (5) Price v. Littlewood, 3 Campb. 
 
 (2) D'Israeli v. Jowet, I Esp. N. 288. 
 
 P. C 427. (6) R. V. Aides, 1 Leach, Cr. C. 
 
 (3) Breton v. Cope, Peake, N. P. 436. 
 
 C. 30. Marsh v. Colnet, 2 Esp. N. (7) Sake and others v. Thomas, 3 
 P. C. 665. I!o9. & Pull. 188, 
 
 (r) See Note 788, p. 1152. (s) See Note 789, p. 1153. (/) See iNoie 7.')0, p. 
 1154. (w) f?eeNote 791, p. 1154.
 
 Cfi. 6.] Of Public Writings, not Judicial. 415 
 
 notice of ilie capture to the defendant, so as to make him h"able y?"""" '" Pol^- 
 
 ... Ill omces. 
 on a policy of insurance, by which it was agreed, that the loss 
 
 should be adjusted, within a certain time after advice of the 
 
 capture. (l)(f) The poll-books taken at an election for members Poll Book. 
 
 of parliament, or at the election of a mayor, are admissible in 
 
 evidence. (2)(«') 
 
 A copy of an official document, containine; an account of the Official ro- 
 cargo of a ship, made in pursuance of an act of parliament by an 
 officer of the customs, and lodged there as an official document, 
 has been admitted as proof, that the property, therein men- 
 tioned, was put on board: (3) an<l a copy of an official docu- 
 ment, containing the names, capacities, and descriptions of pas- 
 sengers on board a vessel, made in pursuance of an act of parlia- 
 ment, is good prorf of such persons being on board. (4)(a;) 
 
 A book in the office of secretary of bankrupts, containing Office of bank- 
 entries of the allowance of certificates, kept by order of the 
 Chancellor, and recognized by him as an official document, ^ 
 would be good secondary evidence of the allowance of a certifi- 
 cate; but a l.'ook, containing such entries, is not admissible, if it 
 appear to be kept merely as the private memorandum of the 
 clerks, without any authority or sanction from the Chancellor. (5) 
 
 Books transcribed by officers of excise from specimen papers. Excise-book, 
 which hang up in every mahhouse, and regularly returned to 
 the excise-office, are admissible evidence against a maltster, 
 though not signed by him, 'and though the excise-officers are 
 not called to substantiate the books of proof. (6) 
 
 A book, in which leases were enrolled, and which was kept in Auditor's 
 the office of the auditor of the Bishop of Durham, has been held "° 
 to be admissible evidence of a lease, after proof of the loss of 
 the original and the counterpart; in the case alluded to it ap- 
 peared, that the office was conducted like a public office, and 
 
 (1) Abel V. PoUs, 3 Esp. N. P. C. to have gone with the sliip. 
 
 •:42. (4) Richardson v. Mellish, 1 Ry, & 
 
 (2) Mead v. Robinson, Wiiles, 424. Mo. 68. 2 Bing. 229, S. C. 
 
 R. V. Hughes, cited, ib. (5) Henry v. Leigh, 3 Cainpb. 499. 
 
 (3) Johnson v. Ward, 6 Esp. N. P. (6) R. v. Grimwood, i Price, 371. 
 C. 47. The official paper was proved 
 
 (i;) See Note 792, p. 1154. (w) See Note 793, p. 1124. (x) See Note 794, p. 1155.
 
 -WG Of Public Writings^ not Judicial [Cli. 6. 
 
 Boolvs in pub- the officer appointed by patent, and that tlie practice had been 
 
 he offices. Ill 1 ,1 \ c 
 
 to enrol leases; the enrolnient-book was iherefore considered as 
 
 a public instrument, and presumed to exhibit a correct copy. (l)(i/) 
 
 Clerk of peace Books preserved in the office of clerk of the peace, containing 
 enrolments of ancient deputations of gamekeepers for a certain 
 manor, are admissible in evidence, to show that those persons, 
 who caused the enrolments to be made had exercised rights as 
 lords of the manor; and they are admissible, without proof that 
 the original deputations have been lost, or that the gamekeepers, 
 named in them, have acted under their authority. (2)(z) 
 
 Authenticity 
 of book. 
 
 Prison-book. 
 
 Parish-book. 
 
 In the above cited case of the King v. Aickles, (3) the clerk 
 of the papers of the prison produced a daily book, kept by him, 
 containing entries of the names of all the debtors and criminals 
 brought into prison, and of the times when they were discharged; 
 but it appeared that these entries were not made by the clerk on 
 his own knowledge of the facts, but generally from the inform- 
 ation of the turnkeys, and frequently from the turnkey's in- 
 dorsements on the backs of the warrants, which warrants were 
 afterwards regularly filed. Upon this, it was objected, that the 
 entries in the books were mere copies, and that the original 
 minutes, from which the entry of the prisoner's discharge had 
 been made, ought to be produced as the best evidence. But the 
 Court overruled the objection, and admitted the contents of the 
 book, as it appeared to have been the constant and established 
 practice of the keepers of public prisons to register the discharge 
 of prisoners in such books as the one produced, and in the man- 
 ner there described, (a) 
 
 In another case, a parish-register of christenings was received 
 in evidence as an original authentic book, although the constant 
 practice in the parish was to make a memorandum of the christ- 
 enings in a day-book from which entries were some time after- 
 wards made into the register. (4) The question in that case was 
 on the plaintiff's legitimacy, and on ilie part of the plaintiff a 
 
 (1) Humble v. Hunt, Holt, N. P. C. (-1) May v. May, 2 Sir. 1072. Lee 
 601. V. Meecock, 5 Esp. N. P. C. 177. See 
 
 (2) Hunt V. Andrews, 3 Barn. & Hughes v. Wilson,! Starkie, N. P. C. 
 Aid. 348. 179. 
 
 (3) Leach, Cr. C. 436. 
 
 (V) Se« Not* 795, p. 1155. (s) See Note 796, p. 1155. (a) See Note 797, p. 1155.
 
 Cli. 6.) Of Public Writings, not Judicial. 417 
 
 general parish register was produced, in which there was an entry Rollsof ma- 
 
 (. , . , . . "" , ., • .... 1 • • nor courts. 
 ol his chnsiening, describing iiim ni the same manner as legiU- 
 
 mate children were usually entered. It appeared, that llie practice 
 was to make the entries in this register once in three weeks out of 
 a day-book, in which entries were made immediately after tho 
 christening, or on the same morning; and in the case of illegiti- 
 mate children, to insert in the entry in the day-book the letters 
 B. B., which were intended to signify "base born." The counsel 
 for the defendant then offered in evidence the day-book, from which 
 the other entry was posted, and in which the letters B. B. were 
 inserted, insisting that it was the original entry. But a majority 
 of the Judges, present on a trial at bar, were of opinion, that such 
 evidence ought not to be received, on the ground, that there could 
 not be two registers in the parish, and that the one first produced 
 ought to be taken to be the true register. — If, indeed, the entry in 
 the day-book, representing the plaintiff as illegitimate, had been 
 signed by the reputed father or the mother, or made under their 
 direction, such evidence would have been admissible, as the decla- 
 ration of a deceased parent on a question of legitimacy: but if, on 
 the other hand, in the absence of such proof, the entry appeared to 
 be merely a private memorandum, kept for the purpose of assisting 
 the clerk to make up the register, (and of that nature it seems here 
 to have been considered,) in that case it could not be received as 
 the original authenticated entry, [h] 
 
 The rolls of a court baron (which is the court of the free- Rolls of ma- 
 holders,) or of the customary court (which is the copyholder's """^ ^°"''"' 
 court,) are evidence between the lord of the manor and his copy- 
 holders or tenants. They are the public documents, by which 
 the inheritance of every tenant is preserved, and the records of 
 the manor court, which was anciently a court of justice relating 
 to all properly within the manor. (1) Ancient writings, though Ancient 
 not properly court rolls, but found among the court rolls, and ""■"'"§*• 
 delivered down from steward to steward, purporting to be made 
 " assensu omnium tenentium,''^ have been admitted as evidence to 
 prove the course of descent within a manor: and this, althou^-h 
 they were not signed by any of the tenants. (2) An entry in 
 
 (1) Gilb. Ev. 67. 4 T. R. 670. (2) Denn, dem. Goodwin v. Spray I 
 
 T. R. 466, 473. 
 
 (b) See Note 7.'}S, p. 115G. 
 
 Vol. I. 5.3
 
 418 
 
 Of public Writings, rot Jw^Adal. [Ch. 6. 
 
 Rolls of ma- 
 nor courts. 
 
 Customary 
 descent. 
 
 Customarj 
 estates. 
 
 the court rolls, stating the several customs within the manor as 
 found hy the homage, and regulating the descent of the several spe- 
 cies of tenure, was in another case admitted to be good evidence of 
 the mode of descent, although no instances were shown of any ten- 
 ant having in fact so taken under the custom: (1) this entry, record- 
 ing the solenm opinion of twenty-four homagers, who are the con- 
 stitutional Judges of the court, delivered on an occasion when they 
 were discussing the interests of all the tenants of the manor, was 
 admitted as full proof of the tradition respecting the custom of de- 
 scent in the manor; which tradition and received opinion are the 
 lex loci. And entries, on the court rolls, of admissions of tenants 
 to customary estates, stating the admission to be on the determina- 
 tion of the estate of the last tenant's widow, " who held it during her 
 chaste viduily according to the manor," are evidence of a tenure 
 on that condition, although no instance of forfeiture for such a cause 
 has occurred. (2) In the absence of such instances, the custom inust 
 be decided by evidence of the form of admissions only. Those that 
 were made durante casta viduitate, if uncontradicted, would be evi- 
 dence that such was the condition, on which the estates in the ma- 
 nor were originally granted; and those that are not necessarily con- 
 tradicted by the entries of admissions, generally, durante viduilate; 
 for they might be understood of a viduity according to the custom, 
 which the other entries would show to be a chaste viduily. (3) (c) 
 
 Ancient 
 writing. 
 
 Upon the same principle, in an action by a copyholder against 
 a freeholder of a manor for surcharging the common, an old 
 writing found among the muniments of the manor, and pur- 
 porting to be signed by many of the copyholders, stating that 
 the commoners of the manor had an ancient unlimited right of 
 common, but that they had agreed to a certain stint, was held 
 admissible evidence of the reputation of the manor at that time, 
 as to the general prescriptive right of common, against the 
 limited right insisted on by the plaintiff; and although it was 
 not proved, that the instrument had been signed by a majority 
 of the copyholders, or that the plaintiff held the copyhold tene- 
 
 (1) Roe, dem Beebee v. Parker, (2) Doe, dem. Askew v. Askew, 10 
 5 T. R. 26. Roe, dem. Bennet* v. East, 520 
 
 Jeffery, 2 Maule & Selw. 92. (3) By lA Ellenborongh, 10 East, 
 
 622 
 
 (c) See Note 799, p. 1156.
 
 Ch. 6.] Of Public fVriiingSj not Judicial. 419 
 
 ments under any one of those who had signed, yet that circum- Terriers, 
 stance could not affect the admissibilily of the instrument, which 
 was offered in evidence, not on the footing of an agreement, but 
 as evidence of tradition and the received opinion within the 
 manxDr. (1) 
 
 Terriers are of two kinds, temporal and ecclesiastical. It has Terriers, 
 been established by a variety of cases, that old terriers or surveys of 
 a manor, are evidence of manorial tenures or boundaries. (2) And 
 an ecclesiastical terrier is evidence of the possessions of a church, 
 if it has been regularly made and preserved in the proper reposi- 
 tory. Ecclesiastical terriers are constantly received in questions 
 of tithes: they are ecclesiastical records, made in perpetuam rei 
 memoriam^ and are as solemn instruments as any that can be pro- 
 duced on such subjects. (3) 
 
 By the ecclesiastical canons, an inquiry is directed to be made, 
 from tiine to time, of the temporal rights of the clergyman in every 
 parish, and to be returned into the registry of the bishop. This 
 return, whicii is generally signed by the minister, is denominated 
 a terrier, and derives its authority from being found either in the Custody of. 
 bishops register office, (4) or the registry of the archdeacon of the 
 diocese. (5) Unless it comes from one of these repositories, it can- 
 not, in general, be admitted in evidence. A paper, therefore, pur- 
 porting to be a terrier, found in the charter-chest of a college, 
 which had property in the parish, was thought to be inadmissible 
 to disprove a modus. (6) 
 
 However, under particular circumstances, this rule respecting the 
 custody of the terriers has been relaxed, and a terrier has 
 been admitted, though not brought from one of the regular re- 
 positories, when the custody in another place has been satisfac- 
 torily explained. One that was found in the registry of the 
 dean and chapter of Litchfield, has been admitted in evidence 
 against a prebendary. (7) This evidence was rejected at the 
 
 (1) Chapman v. Cowlan, 13 East, 1454. 3 Anstr. 7S9, S. C. See Drake 
 10. V. Sinytli, ante, p. 409. (1) 
 
 (2) Glib. Ev. 69. (6) 4 Gwill. 1406. 
 
 (3) 5 Price, 380, 383. (7) Miller v Foster, 4 Gvvill. 1406, 
 
 (4) Atkins v. Hatton, 4 Gwill. HOG. iL.npd see Bullen v. ^fifThel, stated iu 
 2 Anslr. 386, S. C. 4 Gwill. 159--. ch S^ s. 2, infra. 
 
 (5) Potts V. Durant, 4 Gwill. 1450,
 
 420 
 
 Of Public Writings, not Judicial. [Cli. 6. 
 
 Terriers. 
 
 Private 
 eustody- 
 
 trial; but a new trial was al'tcrwards granted by the Court of 
 King's 'Bench, on the ground, that the evidence ought to have 
 been received, as there apjoeared to be a proper connection between 
 the terriers and the place where it was found; and a strong cor- 
 roborating circumstance was, that the terrier was found annexed 
 to an old lease of the prebend, of nearly the same date. (1) 
 
 But when the custody is merely private, and unconnected with 
 the subject-matter, the courts have never gone the length of ad- 
 mitting such papers in evidence. An instrument, therefore, pur- 
 porting to be an endowment, without the seal of the bishop, and 
 another purporting to be an Inspeximus of the former under his 
 seal, were rejected, because they came out of t^ie hands of a pri- 
 vate person entirely unconnected with the matters contained in 
 them. (2) 
 
 Evidence ^^ terrier is strong evidence against a parson; but it is never 
 
 against whom. _ . . .'" 
 
 admitted for him, unless it be signed by a church-warden, or, if 
 
 the church-wardens are nominated by him, by some of the sub- 
 stantial inhabitants of the parish. (3) Old terriers signed by the 
 rector, church-wardens, and other inhabitants of the parish, are 
 evidence for a succeeding rector against the land-owners, on a 
 question of farm-modus, although they are not proved to have 
 been signed by occupiers of the farm, or by any person from whom 
 the land-owners derive title. (4) 
 
 Signature. Terriers are generally signed by the minister of the parish; 
 
 but this does not appear to be essentially necessary. In a late 
 case, (5) on a bill filed by a vicar against the impropriatrix of a 
 rectory, for agistment tithe, a terrier was given in evidence, on 
 the part of the vicar, signed only by the church-wardens: it was 
 objected, first, that it was not a terrier, because made by the 
 church-wardens alone, and not signed by the vicar; secondly, 
 even supposing it to be a proper terrier, yet that it could not be 
 admitted in evidence in that cause against the rector, as it was 
 
 (1) 4 Gwill. 1453. (4) Myttoa v Harris, 3 Price, ll>. 
 
 (2) Potts V. Durant, 4 Gwili. 1450. Wood, B. contra. 
 
 (3) Bull. N. P. 24S. Earl v. Lewis, (5) lilingworth v. Leigh, 4 Gwill. 
 4 Esp. N. P. C. 3. 1615. Potts v. Durant, 3 Anstr. 796.
 
 Ch. 6.] Of Public Writings, not Judicial. 421 
 
 nol signed by any person claiming under, or on the part of the 
 rector. However, the court were of opinion that the terrier 
 was admissible ; that sucli imperfect terriers were now uni- 
 formly received ; that the terrier in question was signed by 
 persons who were in no respect interested, and whose duty it was, 
 from their official situation, to sign it; and that- the want of the 
 vicar's signature made it stronger evidence in favour of his suc- 
 cessor. 
 
 The ancient books of the heralds' office, (1) and their visit- Heralds* 
 ation-books of counties,''(2) are evidence on a question of pedi- "°°^^- 
 gree. The visitation-books contain the pedigrees and arms of tlie 
 nobility of the kingdom from the twenty-first year of Henry VHI. 
 to the latter end of the I7ih century, during which period 
 the two provincial kings of arms, soon after their investiture 
 in office, usually received a commission under the great seal, 
 authorizing them to visit the several counties within their 
 respective provinces, " to take survey and view of all man- 
 ner of arms, cognizances, crests, and other like devices, wiili 
 the notes of the descents, pedigrees, and marriages of all the no- 
 bility and gentry therein contained; and also to reprove, control, 
 and make infamous by proclamation, all such as unlawfully 
 and without just authority usurp or take any name or title of 
 honour or dignity." The first of these commissions was issued in 
 the twenty-first year of Henry VHI., and the last in the 
 second of James 11. (3) From these visitation-books, entries 
 were afterwards made into the books kept by the college of her- 
 alds. 
 
 A licence from the Pope, granted in the reign of Edward K., Pope's bull, 
 has been adjudged, in an old case, to be evidence of an impro- 
 priation, the pope being formerly the supreme head of the 
 church, and having the disposition of all spiritual benefices. (4) 
 For the same reason, a Pope's bull was formerly admitted in 
 
 (1) King dem. Lord Thanet v. Fos- (3) See First Report of the House of 
 ter, 2 Jon. 224. Commons on the Public Records, p. 82. 
 
 (2) Pilten v. Walter, 1 Str. ICl. Appendix, (c. 8.) 
 
 Matthews v. Port, Comb. C3. (4) Cope v. Bedford, Palm 427.
 
 422 
 
 Of Public Writings, not Judicial, 
 
 [Ch. 6. 
 
 Corporation 
 booki. 
 
 Tolls. 
 
 evidence to show that monastery lands had a special exemption 
 from llie payment of tithes. (1) 
 
 Corporation-books, containing an account of the privileges or 
 public transactions of the body, are evidence in a suit between 
 the several members, on the same footing as manor-books between 
 the tenants of a manor. But they are not evidence, in favour 
 of a corporation, to support a claim of right against a stranger;(2) 
 as, vvhere a right to certain tolls is claimed by a corporation, 
 entries in the corporation-books, respecting payments made by 
 individuals in former times, are not admissible, on the part of the 
 corporation, against a party who contests the right to tolls;(3) for 
 such entries relating to the private interests of the corporation, and 
 being of a private nature, cannot be evidence for the party to whom 
 the books belong, (d) 
 
 Public right. 
 
 Tithes. 
 
 On a question of public right, such as the right of swearing and 
 admitting freemen, &,c., corporation-books are admissible. (4) And 
 on a question of tithes also, (in which the books of a former rector 
 are, in some cases, admissible in evidence for the successor,) entries 
 made in the books of an ecclesiastical corporation aggregate are ad- 
 missible, if they would be properly admitted from the books of a sole 
 ecclesiastical corporation. On such a subject the rule must be the 
 same, whether the corporation consists of one or many. (5) 
 
 GustodT of. The books of a corporation cannot be admitted in any case, 
 
 unless shown to have been regularly kept by the proper officer of 
 the corporation, (e) On an information in the nature of a quo 
 warranto, the prosecutor produced in evidence a book written 
 by the prosecutor's clerk, not an officer of the corporation, 
 which appeared to be only minutes of corporate acts done soma 
 years before, and was not kept as a public book of the corpora- 
 tion; this evidence was rejected at the trial, and, on a motion 
 
 (1) Lord Clanricard's case, Paiiii (3) Maniage v. Lavvrence, 3 Barn. 
 
 37. &, Aid. !42. Another case to illus- 
 
 ('2) 1 II. Black 2U, n. (c), Mayor trale the same principle is R. v. De- 
 
 of London v. Mayor of Lynn. In the benhain, 2 Barn >! Aid. 185. 
 
 case of the Mayor of Kingnton-on- (4) Case of Gibhon, upon a quo 
 
 Hull V. Horner, Cowp 102, such evi- «jarra«/o, 17 Howell's St. Tr. SIO, S54. 
 
 dence was received by consent; see (5) Short v. Lee, 2 Jac ^c W'aik. 
 
 1 H. Bl. 214. ■ 470, 476, 479. 
 
 (d) Sea note 800, p. 11 56. (c) See Note 801, p. 1169
 
 Ch. 6.] Of Public Writings, not Judicial. 4'23 
 
 afterwards for a new trial, the Court held thai it had been |)roperly 
 rejected. "Corporation-books," the Court said, "are generally 
 allowed to be given in evidence, when they have been publicly kept 
 as such, and when the entries have been made by the proper offi- 
 cer; not but that entries made by other persons may be good, if it 
 be shown that the town-clerk is sick, or refuses to attend." (l)(/) 
 
 " A general history may be admitted," says Mr. Justice Culler, Histories. 
 " to prove a matter j'tlating to the kingdom at large." (2) Thus, 
 in t!,e case of St. Katharine's Hospital, Lord Halo allowed 
 Speed's Chronicles to be evidence of a particular point of history 
 in the time of Edward HI. (3) And the same book was adfniited 
 as evidence of the death of Edward the Second's queen, in the 
 case of Lord Brounker v. Sir R. Atkins, (4) where Ch. J. Pember- 
 ton said he knew not what better proof they could have. Histories, 
 however, it is admitted, cannot be received as proof of a private 
 right or particular custom. (5) Camden's Britannia was therefore 
 rejected on an issue, whether by the custom of Droitwich, 
 salt-pits could be sunk in any part of the town, or only in a cer- 
 tain place. (6) And in another case, where the question was, 
 whether a particular abbey was of the inferior order, Dugdale's 
 Monasticon was refused, because the original records might be 
 had in the augmentation office. (6) So, it has been determined, 
 that Dugdale's Baronage is not evidence to prove a descent. (7)(^) 
 
 A question arose, on the impeachment of Warren Hastings, as 
 to the con)petency of proving a national custom by a general 
 history. The managers for the Commons wished to prove the 
 customs in Hindostan, respecting the treatment of women of 
 rank; and, for this purpose, proposed to read extracts from the 
 History of the Growth and Decay of the Ottoman Empire, by 
 
 (1) R. V. Mothersell, 1 Str. 92. 12 (4) SUin. 14. 
 
 Vin. Abr. Evidence, (A. b. 15.) pi. 16. (5) Bull. N. P. 248. Cockman t. 
 
 17 Howell's St. Tr S54. Mather, 1 Barnardist. 14. 
 
 (2) Bull. N. P. 248. (6) 1 Salk. 282. Skin. 623. 
 
 (3) I V'ent. 151. Stniner v. Bur- (7) Piercey's case, 2 Jon. 164. 
 gesses of Droitwich, 1 Salk. 2S2. Skin. 
 
 623, S. C. 
 
 (/) See Note 802, p. 1159. {§) See Note 803. p. 1161.
 
 424 Of Public Writings^ not Judicial. [Ch. 6. 
 
 Prince Demetrius Cantemir. (1) The counsel lor the defendant 
 objected, that it would be first necessary to lay some ground for the 
 production of this evidence; at least, it should be shown, that the 
 laws and customs of Constantinople were the same as those of 
 Hindostan; and even then, they said, it might admit of considerable 
 doubt, whether such a history could be admitted in evidence. 
 After argument on the part of the managers of the Commons, the 
 House of Lords informed them, that if the passage which it was 
 proposed to produce from Cantemir's History, went to prove an 
 universal custom of the Mahommedan religion, the managers might 
 read it. Two extracts from the book were accordingly read, (/i) 
 Proof of entry With regard to the proof of entries in public books, it is now 
 booke'''" clearly settled, that wherever an original is of a public nature 
 
 and admissible in evidence, and examined copy will equally be 
 admitted. (2) (i) This rule is necessary, as well for the security 
 of the document, as for the convenience of the public. Examined 
 copies, therefore, of entries in the Journals of the Lords or 
 Commons, (3) or of entries in the Council-book in the Secretary 
 of Slate's office, (4) or of entries in the Bank books, (5) (j) or in 
 the books of the East-India Company, (6) and examined copies 
 of entries in parish registers, or in the books of assessments 
 made by the commissioners of land tax, (7) or in the books of the 
 commissioners of excise, (8) or in the court-rolls of a manor, (9) 
 (k) or in poll-books of an election of a mayor or a member 
 of parliatnent, (10) and examined copies in other cases of the 
 
 (1) Extract from a report of the (4) Eyre v. Palsgrave, 2 Campb. 
 proceedmgs, on the impeachment, in 606. 
 
 the possession of T- Jones Howell, (5) Marsh v. Colnet, 2 Esp. N. P. 
 
 Esq., the editor of the valuable new C. 665. Breton v. Coape, Peake, 
 
 collection of State Trials, to whose N. P. C. 30. Auriel v. Smith, 18 Ves. 
 
 kindness the author is indebted for the 198, 204. 
 
 point above stated. The question oc- (6) 2 Doug. 593, n. (3). 
 
 cuired on the 22d of April, 1788. (7) R. v. Binn and others, 2 T. R. 
 
 The point was referred to, by Lord 234. 
 
 Ellenborough, on the trial of General (8) Caith. 346. R. v. Commission- 
 
 Picton. See 30 Howell's State Trials, ers of Land-tax, 2 T. R. 234. 
 
 p 492. (9) Tuckney v Flower, Comberb. 
 
 (2) Holt C. J. in Lynch v. Gierke, 137. R. v. Haines, ib. 337, by Holt 
 3 Salk. 153. R. v. Haines, Comberb. C.J. Doe. dem. Churchwardens of 
 337. Skin. 583, S. C. Croydon v. Cook, 5 E.sp. N. P. C 221. 
 
 (3) Jones v. Randal, Cowp. 17. Doe, dem. Bennmgton v. Hall, 16 East, 
 R. V. Lord G. Gordon, 2 Doug. 593. 208. 
 
 The printed Journals are not evidence. (10) Mead v. Robinson, WiUes, 424. 
 
 (h) SeeNote804, p. 1162. (t) See Note 805, p. 1165. k j) See Note 806, 
 p. 1165. (fc) See Note 807, p. 1166.
 
 CI). 7.] Of the Inspection of Public Writings. 425 
 
 same kind have been admitted in evidence, when the original 
 hooks themselves would have been admissible. But where an 
 original is of a private nature, a copy will not be evidence, unless 
 the original is lost, or destroyed, or in the possession of the opposite 
 parly. Thus, the copy of an old letter, brought from the chest of 
 a corporation, has been refused. (1) In one case, indeed, where 
 the original was kept in the Bodleian library at Oxford, and by the 
 statutes of the University not removable, an examined copy was 
 allowed to be given in evidence; (2) the Court admitted the case 
 not to be within the general rules of evidence, but, under the par- 
 ticular circumstances, permitted the copy to be read. (1) 
 
 (1) R. V. Gwyn, 1 Str. 401. (2) Downes v. Moreman, 2 Gwill. 
 
 659. Bunb. 189, S. C. 
 
 (0 See Note 808, p. 1166. 
 
 CHAP. VII. 
 
 Of the Inspection of Public Writings. 
 
 Records. 
 The judicial records of the king's courts are safely kept for the 
 
 public convenience, that any subject may have access to iheiu 
 for his necessary use and benefit, which was the ancient law of 
 England, and is so declared by an act of parliament in the forty- 
 sixth year of Edward III. (I) 
 
 Copy of in- 
 Some restriction, however, of the general right of inspecting diciments. 
 
 records has been thought necessary in the case of an acquittal 
 
 on a prosecution for felony ; in which case, if the trial is at 
 
 the Old Bailey, a copy of the indictment cannot regularly be 
 
 obtained without an order from the Court; and it is a common 
 
 practice, on the circuits, to apply to the Court for a copy, atQrderfor 
 
 the time of the trial. This practice appears to have been first 
 
 adopted at the Old Bailey, in pursuance of an order made 
 
 by some of the Judges, for the regulation of those sessions, in 
 
 (1) 3 Inst. 71. Pref. to 3d Rep. p. 3,4. See Sir R. Grabame's Trial, 12 
 Howell's St. Tr. 659. 
 
 Vol. I. 54
 
 426 Of the Inspection of Public Writings. [Ch. 7. 
 
 In eaw of ihe twentv-sixlli year of Charles II. (1) It was ihen ordered, 
 "that no copies of any indictment for felony be given without 
 special order, upon motion made in o|)cn court, at the general gaol 
 delivery: for the late frequency of actions against prosecutors, 
 which cannot be without copies of the indictment, deterreth people 
 from prosecuting for the king upon just occasions." f?lnd Lord 
 Holt has laid it down as a general rule of law, that if a person be 
 indicted for felony and acquitted, and means to bring an action 
 (without sufficient cause,) the Judge will not permit him to have 
 a copy of the record, and he cannot have a copy without leave. 
 (2) (m) In the case of Vandercomb and AbboJt, (3) the priso- 
 ners after their acquittal applied for copies of the several indict- 
 ments, for the purpose of assisting them in their plea of autrefois 
 acquit : the Court, however, refused to grant them copies, but 
 ordered the officer to read over the indictments slowly and dis- 
 tinctly, which was accordingly done. 
 
 The rule of the Judges states, that an action against a prosecu- 
 tor cannot be maintained without a copy of the indictment, and 
 that a copy is not to be given without an order from the Court ; 
 but it is not to be inferred from this, that an order is essentially 
 necessary for the introduction of a copy in evidence, or, if a copy 
 were offered to be produced without an order, that it could on that 
 account be properly rejected. The admissibility of such evidence 
 has been determined in the case of LegaJS v. Tollervey. (4) (n) 
 
 In case of -pjjg j.^jg vvhich-lias been before mentioned, is confined to cases 
 
 misdemeanor. . - . , i j r j • 
 
 of felony. In prosecutions for nusdemeanors, the delendant js 
 
 still entitled to a copy of the record, as a matter of right, 
 
 without a previous application to the Court. (5) So, in the case 
 
 of a conviction by a magistrate, the defendant is entitled to a 
 
 (1) Directions for Justices at the punished for refusing to mal<e out a 
 
 Old Bailey, prefixed to Kelyng's Rep. copy. 
 
 p. 3. order 7. See Brangam's case, (2) In the case of Dr. Groenvelt v. 
 
 1 Leach, Cr. C. 32. In this case. Dr. Burvvell and o'.hers, 1 Ld Raym. 
 
 Willes, C. J , is reported to have said, 253. 
 
 that, by the laws of the realm, every (3) 2 Leach, Cr. C. 821. 
 
 prisoner, upon his acquittal, has an un- (4) 14 East, 302. 
 
 doubti-d right and title to a copy of (5) Morrison v. Kelly, 1 Black. Rep. 
 
 the record, for any use which he may 3S5. Evans v. Phillips, reported from 
 
 think fit to make of it; and that, after MS. in Selw. Ni. I'ri. 952. 
 a demand, the proper officer might bo 
 
 (m) See Note 809, p. 1166. (n) Sea Note 810, p. 1167.
 
 Ch. 7.] Of the Inspection of Public Writings. 427 
 
 copy of ihe conviction, in order to defend himself against an 
 action for the same offence; and if it should be refused, and the 
 defendant in consequence sue out a writ of certiorari, merely for 
 the purpose of procuring a copy and making his defence, the 
 magistrate will be compelled to pay his own costs of returning 
 the conviction. (1) The conviction may be drawn up at any 
 time, before the return to the certiorari or to the sessions, though 
 after a commitment, (2) or after the levying of the penalty (3). 
 And the conviction returned to the sessions, or to the Court of 
 King's Bench, is the only one, of which those courts will take ju- 
 dicial notice. (4) 
 
 A defendant on a criminal charge is not entitled to an inspection lospection of 
 of the grotmr!?, upon which the prosecution has been instituted. 
 In some s|>ecies of treason, indeed, the prisoner is entitled to a copy 
 of the indictment, a privilege not allowed by the common law, but 
 conferred by act of parliament; (o) but neither in cases of treason 
 nor of felony has he any right to a copy of the depositions of wit- 
 nesses, who are to appear against him. 
 
 When inforn^ations are filed by the Attorney-General, on depo- 
 sitions taken under the excise laws, the defendant is not allowed 
 to inspect those depositions. And in a case where an information 
 was filed against an officer of the East-India Company, on charg- 
 es of delinquency founded upon the report of a board of enquiry 
 in India, the Court of King's Bench were of opinion, that the 
 defendant had no right to have an inspection of that report, and 
 that the Court had no discretionary power to grant it. (5) " The 
 practice on indictments at common law, and on information upon 
 particular statutes," said Mr. Justice Buller on that occasion, 
 *' shows it to be clear, that tlie defendant is not intiiled to inspect 
 the evidence, on which the prosecution is founded, till the hour 
 of trial." 
 
 The right of inspecting the oroceedings of inferior juris- Proccodings of 
 
 .... ]• • 1 T ' I r I • inferior juris- 
 
 dictions IS more limited. It cannot be necessary lor the in- dictions. 
 
 (1) R V. Midiam. 3 Burr. 1721. (3) R. v. Barkrr, 1 East, 1S6. 
 
 (2) Massey V. Johnson, 12 F.ast, 67. (4) Ibid. 188. 
 
 82. 16 East, 20. , (3) R. v. Hollnnd, 4 T. R. 691. 
 
 (o) riee No'e Sll, p 1 167.
 
 428 Of the Inspection of Public Writings. [Cii. 7. 
 
 terests of the public, that they should be open for inspection to all 
 persons without distinction; but, on the other hand, it seems rea- 
 sonable, that, in any suit, where the regularity of those proceed- 
 ings may come into question, a party should have the power of 
 taking a copy of such, as have been instituted against himself. In 
 an action of trespass and false imprisonment, brought by the plain- 
 tiff, who had been sued in the Court of Conscience in London, 
 the Court of King's Bench allowed the plaintiff to inspect the pro- 
 ceedings, so far as they related to the suit against himself, on the 
 ground that every one has a right to look into the proceedings to 
 which he is a party. (1) In another case, where the plaintiff, hav- 
 ing been fined for neglect of duty, as an under-officer to the com- 
 missioners of lieutenancy for the city of London, brought an ac- 
 tion of trespass against the defendant for distraining upon him, 
 the Court granted the plaintiff a rule for inspecting and taking 
 copies of the rates and assessments made by the commissioners. (2) 
 On the same principle, in an action for a malicious prosecution 
 and false imprisonaient, the plaintiff may obtain a rule for a copy 
 of the information, upon which he was committed; and, as the 
 original itself ought to be produced at the time of the trial, the 
 Court will also grant a rule, calling upon the committing magis- 
 trate to cause it to be produced. (3)(/)} ^ 
 
 Parish-regis- Parish-registers, boqks of the India Company relating to the 
 lers and other f ^ ^j^^j. ^ooks of the Bank, &c., are for some pur- 
 
 public books. ' , . 
 
 poses considered as public books; and persons mterested in 
 them have a right to inspect and take copies of such parts 
 as relate to their interest. (4) So the books of the commis- 
 sioners of the lottery, and their numerical lists, are of a public na- 
 ture: and kept by the commissioners in trust for the ticket-holders, 
 who are entitled to an inspection, by rule of court. (5) (7) 
 
 (1) Wilson V. Rogers, 2 Str. 1242. 421,491,8. C. Avery v. Dickenson, 
 
 (2) Edwards v. Vesey, Rep temp. Say. 250. 
 
 Hard. 128. (4) Geery v. Hopkins, 2 Ld. Raym. 
 
 (3) K. V. Smith, 1 Stra. 126. Sol. Warriner v. Giles, 2 Stra. 954. 
 Welsh V. Richards, Barnes 468. S. P. Mayor of London v. Swinland, 1 Bar- 
 Herbert V. Ashburner, 1 Wils. 297. nardist. 454. 
 
 Moody V. Thurston, 1 Stra. 304, (5) Schinotti v. Bumstead and oth- 
 
 and R. v. Commissioners of Land-tax, ers, cited from a MS. case, in 2 Tidd'a 
 
 2 T. R. 234. See Groenvelt v. Bur- Prac. 596. 
 well, IjLd. Raym. 253,454. Carth. 
 
 {py See Note 812, p 1167. (.;) Sec Note 313, p. 1168.
 
 Ch. 7.] Of the Inspection of Public Writings. 4*29 
 
 Access is not allowed to such parish-books as are kept only 
 Tor the private use of the parish and relate to tlieir private 
 interests. An inspection was, for that reason, refused, in an 
 action of ejectment by an impropriator against the church- 
 wardens of a parish, where a rule was applied for, on the part 
 of the plaintiff, suggesting, that the parish-books would make 
 the titles appear, and that they were the common books belong- 
 ing to the parish at large: but the court were of opinion, that, 
 when the person claims a distinct interest from that of the 
 parish, it is not reasonable to compel the parish to discover 
 their title by showing their books, which are kept only for their 
 own use. (1) For the same reason, a public company will not 
 be compelled to produce any books relating to their private 
 transactions. (2) 
 
 Nor will access be granted to the books of public offices, in Books of 
 collateral actions brought by persons who have no interest in the ^" 
 books; therefore, in a qui tarn action for penalties against a clerk 
 in the post-office, for interfering in the election of a member of 
 parliament, the prosecutor was not allowed to have a rule for 
 inspecting the books of the post-office, as the cause did not relate 
 to any transaction in the post-office, for which transactions alone 
 those books are kept. (3) Nor will the Court grant a rule for 
 inspecting the custom-house books, for the purpose of furnishing 
 evidence in an action between two persons, who have no interest 
 in the subject matter, concerning the amount of a particular branch 
 of the public revenue. (4) 
 
 The court-rolls of a manor are kept in the custody of the lord ^°"^ °^ 
 
 1 • 1 r 1 c 1 1 I . , . manor courts. 
 
 or his steward, not lor the use of the lord alone, but as the 
 common evidence of the manorial rights, to which evidence all 
 the tenants of the manor, whether copyhold or freehold, have 
 an undoubted right of access, as well in actions between the 
 
 (1) Cox V. Copping, 5 Mod. :395. (2) Shelling v. Farmer, I Stra. 6-16. 
 
 1 Ld. Raym. 337. Lewis v. Baiier, Alurray v. Thorliill, 2 Stra. 717. 
 
 1 Baruardist. 100. Turner v. (le- (3) Crew q, t. v. Blackburn, cited 
 
 thin.Vin. Ab. tit. Evidenci", (F. b.) 1 Wils. 240. 2 Htra. 1005, S. P. 
 
 pi. 11. As to the inspeciion of the (4) Alhorfold v. Beard, 2 T. R. 614. 
 
 proceedings before conjmissioncrs of 616. 
 bankrupt, see vol. ii. p. 2.
 
 ^^^ Of the Insprction of Public Writings. [Cli. 7. 
 
 tenants and the lord, as between the tenants themselves; (1) and it 
 is now a matter of course to grant a rule for the inspection of the 
 court-rolls and ancient writings of a manor, on the application of a 
 tenant, who has been refused by the lord. 
 
 Who may in- This privilege of inspection is confined to the tenants of the 
 
 spoct. 1 
 
 manor, and does not extend to third persons, who have no concern 
 or connection with the manor-court or the court-rolls. Thus, in 
 an action of trespass, where the question was, whether the place, 
 in which the trespass was alleged to have been committed, was 
 within the manor of the plaintiff, or part of a manor claimed by 
 the defendant, the Court held, that the defendant, who, as it ap- 
 peared from his affidavit, was not a tenant of the plaintiff's manor 
 nor claimed any interest under him, could not be entitled to an in- 
 spection. (2) And it may be laid down as a general rule, that 
 where the question is on the custom of a manor between the loril 
 and a stranger, the lord will not be obliged to let him have an in- 
 spection of the rolls, because, in a dispute with a stranger, they 
 may be considered as his private evidence: but if the dispute is 
 between tenants of the manor, or between the lord and a tenant, 
 the lord shall produce the roll, and peruiit copies to be taken. 
 
 Corporation- Corporation-books are open to the members of the corporation, 
 as court-rolls are to the tenants of the manor. *(r) Thus, where a 
 mandamus had been granted, to admit a person into a corpo- 
 ration, and by the returns it appeared to be a question, vvhetlier 
 the master, under whom he had served, had been admitted to 
 
 (1) Roe V. Aylmer, Barnes, 236. (2) Talbot v. Villeboys, cited from 
 
 Hobson V. Parker, ib. 257. Addinglon MS. by Duller J. 3 T. R. 142. Smith 
 
 V. Clode, 2 Black. Rep. 1030. Folk- v. Davies, 1 VViU. 104. Bp. of Here- 
 
 ard V. Hemet, ib. 1061. R v. Shelley, ford v. D. of Bridgewater, Bunb. 269. 
 
 2 T. R. 141. R. V. Lucas, 10 East, 235. Attorney-General v. City of Coventry, 
 
 Baleman v. Phillips, 4 Taunt. 162. Bunb. 290. 
 
 ♦By Stat. 32 G. 3, c 53, s. 4, a penalty of a hundred pounds is incurred 
 by an ofHccr of the corporation, having the custody of the corporation re- 
 cords, who sh.iU refuse to allow any other officer or member to inspect books 
 nnd papers, wherein are entered thd adnii.-^sioii or swearing in of the friieinen, 
 burgesses, or members of the curporation, and to take copies or minutes of 
 such admission, &,c. Books, containing orders for the admission nnd swear- 
 ing in of the burgesses, are not within the provisions of the statute. Davies 
 V. Humphreys, 3 Maule & Selwr. 223. 
 
 (r) See Note 814, p. 116S.
 
 Ch. 7.] Of the Inspection of Public Writings, 431 
 
 his freedom in the corporation, a rule was moved for, on the part of 
 the person claiming admission, to inspect the books of the corpora- 
 lion; and the court held, that every member has a right to in- 
 spect and take copies of corporation-books for any matter that con- 
 cerns himself, even in a dispute with strangers; but, as the return 
 bad pointed out the necessity of inspecting them for a particular 
 purpose, the rule should be confined to such books as contained 
 the admissions of freemen. (I) 
 
 Where an information in the nature of a quo warranto had been 
 obtained, at the relation of corporators, against a person charged 
 with unlawfully holding a corporation-ofBce, the Court held, that 
 these relators were entitled to inspect the books, and that the rule 
 should be limited to the inspection of such papers, as related to the 
 subject-matter in discussion. (2) And in an action for the breach 
 of a bye-law, restraining all but freemen from exercising trades 
 within a corporate city, the Court will compel the corporation to 
 allow the defendant to inspect the bye-law in their books. (3) 
 
 This right of inspecting the muniments of a corporation is con- Who may 
 fined to the members of the corporate body. A stranger has no 
 better right to inspect corporation-books, than to inspect the books 
 of any private person. On a prosecution against a person for 
 practising physic, (not being a member of the college of physi- 
 cians, nor having a licence, not being a graduate of either univer- 
 sity,) the defendant moved for leave to inspect the book of the col- 
 lege of physicians; but the Court refused to grant the rule, as the 
 defendant, who was not a member, had no right to see the book. (4) 
 And in an action of trespass, where the defendant justified under a 
 corporation for cieslraining for a toll, the Court refiised a similar rule 
 to the plaintiff', who was a stranger to the corporation. (5)'(s) 
 
 (1) 11. V. Fraternity of Hostmen in (4) Dr. West's case, cited 1 Wils. 
 Newcastle, 2 Stra. 1222. 240. Alien v. Tapp, 2 Black. Rep. 
 
 (2) R. V. Babb, 3 T. R. 579. 8.50. 
 
 Crew q. t. V. Saunders, 2 Str. 1005. (5) Cited by De Grey, C. J., in 
 Corpoiation of Barnstaple v. Lathey, Hodges v. Atkis, 3 Wils. 398, and by 
 3 T. R. 303. Young v. Lynch, 1 Lawrence, J , in 8 T. R. 594. May- 
 Black. Rep. 27. or of Southampton v. Graves, 8 T. R. 
 
 (3) Harrison v. Williams, 3 Barn. & 590. 
 Cress. 162. 
 
 (s) See Note 816, p. 1168.
 
 ^^^ Of the Inspection of Public fVritings. [Ch. 7. 
 
 A different practice was nt one lime introduced in courts of 
 law, (1) upon the ground, that, on filing a bill for disclosure in a 
 court of equity, an inspection would be granded as a matter of 
 course, and that it would only cause unnecessary expense to send 
 the parties into that court. But this practice, which was not war- 
 ranted by earlier authorities, (2) nor comformable to the practice of 
 courts of equity, has been long discontinued; and the rule of law, 
 now established, is, that in disputes between several members of a 
 corporation an inspection of the corporation-books will be granted, 
 because each has a right to see them; but an inspection will not 
 be granted in the case of a corporation, when a similar inspection 
 would be refused, if the suit were between private persons. No 
 distinction is to be made, in this respect, between a corporation ag- 
 gregate and a corporation sole, nor between a corporation sole and 
 a private person suing in his individual capacity. (3) (i) 
 
 Inspection 'p[jg ^ule for inspectine; court-rolls, corporation-books, and 
 
 when not ... 
 
 compelled. Other pubHc writings, will not be allowed, where the party, who 
 has them in his custody, would, by producing them for inspec- 
 tion, disclose any evidence of a criminal nature, or expose himself 
 to a prosecution, (u) On an information, therefore, against sev- 
 eral persons, for executing on office of trust without taking the 
 oaths, the Court refused a motion for leave to inspect some 
 books kept by the defendants, in which they had entered their 
 elections, receipts, and disbursements, as it would have com- 
 pelled them to give evidence against themselves in a criminal 
 prosecution; (4) and a similar motion was refused, on an in- 
 formation against two overseers for making a rate without the 
 concurrence of the church-wardens. (5) Another case to the 
 same effect is the case of the King v. Dr. Purnel, (6) where, 
 on an information against the defendant for a misdemeanor in 
 his office of vice-chancellor of the university of Oxford, a rule 
 for taking a copy of the University-statutes, in the care of the 
 
 (1) Mayor of Lynn v. Denton, 1 T. (4) R. v. Mead, 2 Lord Raym. 
 R. 689. Corporation of Barnstaple v. 927. R. v. Worsingham, 1 Lord 
 Lathey, 3 T. R. 303. Raym, 705- R. v. Cornelius, 2 Str. 
 
 (2) Dr. West'ii case, cited 1 Wils. 1210. 
 
 240. R. V. Dr. Bridgeman, 2 Str. (5) R. v. Lee, cited 1 Wils. 240. 
 
 1203. Mayor of Exeter v. Coleman, (6) 1 Wils. 239. 1 Black. Rep. 37. 
 
 Barnes, 238. Hodges v. Atkis, .3 Wils. R. v. Heydon, 1 Black. Rep 351. See 
 
 398. also R. v. Earl of Cadogan, 5 Barn. & 
 
 (3) 8 T. R. 593. Aid. 902. 
 
 (t) See Note 816, p. 1169. (h) See Note 817, p. 116y.
 
 Ch. 7.] Of the Inspection of Public Writings. 453 
 
 keeper of the archives, was refused by the Court of King's Bench, 
 after great consideration ; and the principle, that no man shall be 
 bound to criminate himself, was fully recognized. 
 
 This principle will not apply to the case of informations in the ^"o warranto, 
 nature of a quo warranto^ for usurping a franchise, or intruding 
 into a corporation office; for such informations, although originally 
 and strictly criminal noethods of prosecution, are applied to the 
 purpose of trying civil rights, and are considered at present as 
 merely civil proceedings. On an information, therefore, exhibited 
 at the relation of a member of a corporation, against a person for 
 unlawfully executing an office, the relator, who as member has a 
 right and interest in the books of the corporation, may obtain an 
 inspection and copy of such, and of such only, as relate to the sub- 
 ject-matter in discussion. (1) 
 
 In a case very lately before the Court of King's Bench, (2) an ac- Parish book, 
 tion having been brought for a libel contained in a written statement, 
 which the defendant had drawn up respecting the plaintiff's con- 
 duct, the defendant applied for a rule to inspect certain documents 
 belonging to the parish, then in the plaintiff's possession, from which Private use. 
 documents he had drawn up his statement by the authority of the 
 vestry. The inspection was required, with the view of enabling 
 the defendant to justify in the action. But the Court refused to 
 order the plaintiff to furnish evidence against himself: if the papers, Public, 
 the Court added, had been wanted for the purpose of advancing 
 any parochial right, the case would have been different, (v) 
 
 The motion for a rule to inspect and take a copy, where an How to obtain 
 action is depending, is founded on an affidavit stating the cir- '"^P^'^ '°"' 
 cumstances under which the inspection is claimed, and stating 
 further, that an application has been made in the proper quarter, 
 for permission to make the required inspection, which has been 
 refused. (3) Where a motion for a mandamus, or for an inform- 
 
 (1) R. V. Babb, 3 T. R. 579. the action was brought, had come in- 
 
 (2) May v. Gwynne, 4 Barn. & Aid to the defendant's hands by fraud ; 
 301. but the particulars of the fraud were 
 
 (3) Ro8 V. Aylmar, Barnes, 236. not stated; and on an affidavit by the 
 In Threlfale V. Webster, I Bing. 161, defendant, denying the fraud, the Coort 
 a rule nisi was obtained on an affida- of C P. discharged the rule. 
 
 vit, alleging that the bills, on which 
 
 (v) See Note 8tS, p. 1169. 
 
 Vol. I. 55
 
 4^?4 Of the Inspection of Public Writings. [Ch. 7. 
 
 action in the nature of a quo icarranto in a corporation, is depending, 
 the Court will grant a rule absolute in the first instance. (1) But 
 when the motion is for a writ of mandamus to inspect, grounded 
 upon affidavits, the rule, then, (o be granted, is only a rule to show 
 cause. 
 
 When. With regard to the proper stage of the proceedings for making 
 
 the application, it may be observed, that the Court has refused the 
 motion in an action against a coporation upon a right of toll, 
 because issue was not joined, so that it could not appear, whether an 
 inspection would be necessary. (2) And in the case of Dr. Groen- 
 velt V. Dr. Burwell, where the plaintiff applied for a copy of the 
 proceedings, instituted against him by the college of physcians, 
 the Court admitted the rule for inspecting the proceedings to be 
 usual, for the sake of evidence, after issue joined, but not by way of 
 assisting the party to plead. (3) If a rule has been granted to show 
 cause, why a mandamus should not be awarded, the Court will 
 not make a rule for inspecting and taking copies, until the first rule 
 is made absolute, and a return is made to the mandamus; (4) and 
 it has been thought the most convenient practice, where a rule nisi 
 for a quo warranto information has been obtained, not to grant an 
 inspection, until the information is granted. (5) 
 
 Where no 
 action de- 
 pending. 
 
 If no action is depending, the proper motion is for a rule to 
 show cause, why a writ of mandamus should not issue, com- 
 manding the officer who has the custody'of the books, to permit the 
 party to inspect and take a copy, (w) The affidavit, upon which 
 this motion is founded, ought to state clearly the right, imder 
 which the inspection is claimed, and that the inspection has been 
 refused. In a case of this kind, where an inspection of the^ 
 court-rolls of a manor was applied for, the party stated in his 
 affidavit a prima facie title to a copyhold of the manor; and the 
 Court of King's Bench held, that, as he was clearly entitled to 
 the copyhold, unless it had been conveyed away by those under 
 whom he claimed, he had a right to see, whether any such con- 
 
 (1) R. V. Shelley, 3 T. R. 141. (4) Per Cur. in R v. Justices of 
 
 (2) Hodges V. Atkia, 3 Wils. 398. 2 Surrey, Say, 144. 
 
 Black. Rep. 877, S. C. (5) By Ashurst J in R. v. Babb, 3 
 
 (3) Carthew, 421. T. R. 581. R v. Hollistcr, Rep. temp. 
 
 Hard. 246. 
 
 (ly) See Notfl 819, p. 1170.
 
 Ch. 8.] Of the Proof of Deeds, Agreements^ ^-c. 435 
 
 veyance appeared on the rolls; and ihe Court therefore made the 
 rule absolute, so far as related to the copyhold lands, the subject of 
 the party's claim. (l)(a:) 
 
 (1) R. V. Locas, 10 East, 235; and see 3 T. R. 142. R v. Towor^4 Maula & 
 Eelw. 162. 
 
 (x) See Note 820, p. 1170. 
 
 CHAP. VIII. 
 
 0/ tht Proof of Deeds^ Agreements, ^c. 
 
 The nature and proof of public writings having been con- 
 sidered, the next branch of the subject relates to private 
 writings. In treating of this part of written evidence, it will 
 not be attempted to describe all the various kinds and requisites of 
 private writings, — which would far exceed the limits of the present 
 work. The enquiry will be confined, principally, to the con- 
 sideration of the regular mode of proof, by which a written instru- 
 ment may be introduced and admitted in evidence. The requisite 
 of stamping also, and the admissibility of parol evidence ex- 
 planatory of written instruments, will form a material part of the 
 enquiry. 
 
 The first section of the present chapter treats of the proof of 
 deeds and agreements, and other writings of a similar description; 
 the second section treats of the proof of wills. 
 
 Sect. I. 
 
 Of the Proof of Deeds, Agreements, ^-c. 
 
 The principal subjects treated of in the present section are, 
 first, the process for compelling a person to produce writings in his 
 possession; secondly, the effect of a notice to a party to produce 
 writings; thirdly, the admissibility of secondary evidence of writ- 
 ings which have been lost or destroyed; fourthly, the proof of the 
 execution of deeds and other writings; fifthly, the proof of hand- 
 writing in general. 
 
 First, of the prcce.^s ("(^r ccnipelling a person to produce writings 
 in his possession.
 
 436 Of the Proof of Deeds ^ Agreements, ^c. [Ch. 8. 
 
 Subpoena If a^y (jged or other writing, necessary to be produced at the 
 
 duces tecum. . , ^ • • , • r i • i i i i 
 
 trial 01 a cause, is in the possession ot a tlurJ person, tlie legal pro- 
 cess for compelling him to produce it, is by suing out a writ of 
 subpcsna ad testificandum^ to enforce his personal attendance, and 
 inserting a special clause, called a duces tecum, which specifies the 
 writings required, and commands him to produce them at the 
 trial, (y) The writ o( subpoena duces tecum, like some other writs 
 of undoubted antiquity, is not to be found in the registrum brevium; 
 but it can be traced in practice as far back as the time of Charles 
 II., and probably existed much earlier, as such a compulsory pro- 
 cess is essential to the constitution of courts of justice. A wit- 
 ness, served with this subpoena, is obliged to attend; and, though 
 it will be a question for the consideration of the judge, whether he 
 ought to be compelled to produce the writings in his possession, 
 yet undoubtedly he ought to be ready to produce them, if ordered 
 by the Court; and, in case of disobedience without sufficient 
 cause, will be liable to an attachment, or to a special action for 
 damages. (1)(2) 
 
 Production ex- If the writing, which the witness is called upon to produce, 
 would have a tendency to subject him to a criminal charge, or to a 
 penalty, (2) (a) or any kind of forfeiture, the court will excuse him 
 from producing it, as well as from answering any question of the 
 same tendency; but, from analogy to the rule respecting parol 
 testimony, (and there seems to be no good reason for allowing 
 a greater privilege in the one case, than in the other,) he would 
 not be excused from producing a paper in his possession, relevant 
 to the matter in issue, on the ground that it might establish, or 
 tend to establish, against him the fact of his being in debt, or 
 might subject him to a civil suit. (3) (6) 
 
 Rule to pro- jf writings are in the possession of a party to the suit, the 
 
 duce. . - 11- I • 
 
 Other party has, in general, no means ot compeJling their pro- 
 duction. In some instances, indeed, where the writing is depo- 
 sited in the custody of a defendant, as a trustee for all parties 
 
 (I) Amey v. Long, 9 East, 473. (2) Whitaker v Izrd, 2 Tfiunt. 
 
 Corsen V. Dubois, Holt, N. P. C 239. 115. 
 
 Reed v. James, 1 Stark. N. P. C. 1S2 . (3) See slat. 46 G. 3, c. 37. 
 Field v. Beaumont, 1 Swanst. 209. 
 
 • (y) Eee Note 821, p. 1170. ( = ) See Note 822, p. 1171. (a) See Note 823, p. 
 1171. (6) See Note 824, p. 1171.
 
 Sect. I.J Of the Proof of Deeds, Agreements, l^c. 437 
 
 interested, courtsof law will order him to furnish the plainlifT with Rule to pro- 
 
 " . . . . . (luce, 
 a copy, and produce the original at the trial. Thus, in an action . 
 
 for a stake won at an horse-race, the defendant, who was the stake- 
 holder, was ordered to produce a copy of the racing articles, with- 
 out which the plaintiff could not proceed. (1) So, in a late case, 
 in an action of covenant, the Court of Common Pleas granted the 
 plaintiff a rule for taking a copy of an indenture of assignment of 
 a lease, made between the plaintiff and defendant, as the only part 
 of the indenture, which had been executed, was in the hands of 
 the defendant: (2) the parties, in this case, having executed one 
 part only of the indenture, in order to save the expense of double 
 stamps, the Court thought it a necessary consequence, that the 
 party who had the custody, undertook to produce the deed, when 
 requisite for the use of the other contracting party, (c) 
 
 In an action by seamen to recover wages, the defendant is com- Ship's ariiclei. 
 pellable to produce the ship's articles: (3) for, the contract for 
 wages always remains in the possession of the master, and the 
 statutes (which require a written agreement in the case of foreign 
 voyages, (4) and in the case of certain vessels employed in the 
 coasting trade,) (5) expressly enact, that where it becomes necessa- 
 ry to produce the contract in court, no obligation shall lie on the 
 seamen to produce it, but on the master or owners of the ship; and 
 that no seaman shall fail, in any suit or process for the recovery of 
 wages, for want of its production, (d) 
 
 Where a person is sued on a written security, which he has Party interest- 
 given for the benefit of third persons, and he afterwards gets 
 possession of the writing, the Court, on the application of the 
 plaintiff, who claims an interest in the paper, though he has not 
 signed it as a party, will compel the defendant to produce it, 
 that it may be stamped, previous to the trial. (6) (c) The ground Stamp. 
 
 (1) Gracewood V. , Barnes, 439. confined to voyages on board of 
 
 (2) Blakey v. Porter, 1 Taunt. 386. British ships. Dickman t. Benson, 
 King V. King, 4 Taunt. 660. 3 Carnpb. 290. 
 
 (3) Johnson v. Lewellyn, 6 Esp (5) St. 31 G. 3, c. 39. 
 N.P. C. 101. 1 Taunt. :^86. (6) Bateman v. Philips, 4 Taunt. 
 
 (4) St. 2 G. 2, c 36. This statute 157. The writing was originally de- 
 does not apply to the case of a British posited in the hands of a third person 
 seaman, who enters on hoard of a (or the benefit of the creditors of a 
 foreign ship in a British port, but is bankrupt, who brought the action 
 
 ed m a docu- 
 ment. 
 
 (c) See Note 825, p. 1175. (d) See Note 826, p. 1176. (c) See Note 827, p, 1176,
 
 438 Of the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 Rule to pro- of ilie application, is, that ilie applicant has an interest in the 
 
 duce. . . ' ' _ ' ' ' 
 
 writing, the production of which is required; and he may be 
 
 interested, though not, technically speaking, a parly to the instru- 
 ment. (/) A person, who takes an estate by way of remainder, 
 is not a party to the deed, by which his estate is created, but he 
 has a strong interest in the deed, and is entitled to compel the 
 production. (1) 
 
 But the Court will not compel a person to produce a written in- 
 strument in his possession that it may be stamped, on the applica- 
 tion of one who is not a party to the instrument, nor interested in 
 it. (2) And where an instrument is executed by two parties, each 
 of whom keeps a part, the Court will not compel the one party to 
 produce hio part, in order to support an action against himself: (3) 
 if, for instance, a bond were executed, and afterwards lost by the 
 obligee, he has no right to demand of the obligor to produce a copy 
 of the bond in his possession. (4) {g) 
 
 Agent's books. In an action between the plaintiff (a factor) and defendant 
 (a grazier,) the Court of King's Bench, on the motion of the 
 defendant, made a rule for the plaintiff" to show cause, why he 
 should not produce at the trial the several books, in which he 
 entered the amount of beasts sold, and of money received on the 
 defendant's account; and no cause being shovvn, the rule was 
 made absolute. (5) The rule, which Lord Mansfield laid down 
 in such cases, is said to be, that wherever the defendant would be 
 entitled to a discovery, he should have it in a court of law, with- 
 Aciion on ^^^ gO'"§ into equity. (6) (/i) In causes on policies of insurance, 
 policy. it is now the common practice to obtain a judge's order, calling 
 
 upon the assured to produce to the underwriters, upon affidavit, 
 all papers in the possession of the former relative to the matters 
 in issue; and if the one party is not content with such papers as 
 
 (1) See supra, n. (6) 4 Taunt. 161. (5) Goater v. Nunnely, 2 Str. 1130. 
 
 (2) Osborne v. Taylor, cited 4 Ward v. Apprice, 6 Mod. Rep. 264, 
 Taunt 159, 162. Drown v. Rose, 6 contra. 
 
 Taunt. 283. {(i) Barry v. .^Idx.inJsr, 2) G 3, 
 
 (3) Street v. Brown, I Marshall, K. B. 1 Tidd. Pr. 618. See Smith 
 610. 6 Taunt. 302, S. C. Ratcliffe v. Duke of Northumberland, 1 Cox 
 V. Bicasby, 3 Bing. 148. Pickering Ch. C. 363, 365. Burton v. Neville, 
 V. Noyes, 1 Barn. & Cre.ss. 262. 2 Cox, 242. Campbell v. Frencb, ib. 
 
 (4) 6 Taunt. 305 286. 
 
 {/) See Note 829, p. 1176. (§■) See Note 829, p. 1176. (A) See Note 830, p. 1177.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, <^'C. 489 
 
 are produced under the order, the other party will be obliged to Notie« to pro- 
 make an affidavit, denying the relevancy of those which are with- 
 
 held. (1) (i) This practice has been adopted for its great conve- 
 nience, as it saves the delay and expense of a bill in equity. But the 
 practice in Chancery invariably is, that a party is entitled only to 
 extracts of letters, if the other party will swear, that the passages 
 extracted are the only parts relating to the subject-matter. (2) (j) 
 
 Secondly, of the effect of a notice to a party to produce writings 
 in his possession. 
 
 In general, one party has not the means of compelling the other Notice to pro- 
 , ..... . , duco. 
 
 party to produce any writmgs in Ins possession, however necessary 
 
 they may be for the prosecution of his suit. (3) If such evidence is 
 
 required, the rule both in civil and in criminal cases, (4) is to give 
 
 the opposite party or his attorney (5) a regular notice to produce the 
 
 original, which is in his possession; not, that on proofof the notice 
 
 he is compellable to give evidence against himself, or that, if he re- 
 
 fuises to produce the papers required, such a circumstance is to be 
 
 considered as conclusive against him, (6) {k) but the consequence 
 
 will merely be, that the other party, who has done all in his power 
 
 to supply the best evidence, will be allowed to go into evidence of 
 
 an inferior kind, and may read an examined copy, or give parol 
 
 evi(ience of the contents. {I) 
 
 Service of the notice upon the wife of the party's attorney, late Seryice. 
 in the evening before the trial, has been held to be insuffi- 
 cient. (7) (m) Notice to produce a paper connected with the cause, 
 given to the attorney on the evening of the second day before the 
 trial, the party being then abroad, has been held to be sufficient by 
 Lord Tenterden. (8) (n) 
 
 (1) Clifford V. Taylor, 1 Taunt. 167. (5) 2 T. R. 203, n. Cates q. t. v. 
 Goldschmidt v. Marryat, 1 Campb. Winter, S T. R. 306. 
 
 5(;2 (6) Cooper v. Gibbons, 3 Campb. 
 
 (2) 1 Taunt. !67. 363. 
 
 (3) Seethe case of F.ntick v. Car- (7) Doe, dem. Wartney, v. Grey, 
 rington, 19 HowelPs St. Tr. 1073, and 1 Starkie, N. P. C. 283. 
 
 see cases in p. 438, supra, n. (3) (S) Bryan v. Wagstaff, 1 Ry. & Mo. 
 
 (4) The attorney-General v. Le 328. 
 Merchant, 2 T. R. 201, n. 
 
 (i) See Noto S31. p. 1178. (;) See Note 832, p. 1178. (A:) See Note 833, p. 1182. 
 (/) S»o Note 834, p. 1182. (m) See Note 835, p. 1183. (n) See Note 836, p. 1184.
 
 440 Of the Proof of deeds, Agreements, ^c. [Ch. 8. 
 
 Neiice to pro- before this secondary evidence can be admitted, it ought to be 
 
 ' clearly shown, that the writing required is in the possession of the 
 
 Proof cf deed other party, and that a notice to produce it has been regularly 
 possession, served. The degree of evidence which may be necessary to prove 
 the fact of possession, will depend so much on the nature of the 
 transaction, and the particular circumstances of each individual 
 case, that it is scarcely possible to lay down any general rule upon 
 the subject. Slight evidence may be sufficient, in many cases, to 
 raise a presumption, that the writing is in the possession of a party, 
 when it exclusively belongs to him, and regularly ought to be 
 in his possession according to the course of business. In the case 
 of Henry v. Leigh, (1) the solicitor to a commission of bankrupt 
 proved, that he had been employed by the defendant to solicit his 
 certificate under the commission, and that, looking at the entry 
 of charges, he had no doubt the certificate was allowed: it was 
 therefore presumed, that the certificate came into the defendant's 
 possession, (o) 
 
 Possession of In certain "cases, though the written instrument, which is re- 
 third persons. . -. , • i • i 
 
 quired, is not in the possession of the party to the suit, but m the 
 
 possession of a third person, yet if there is a privity between such 
 person and the party, a notice to the party may be sufficient. 
 Thus, in the case of Baldney v. Ritchie, (2) an action against the 
 owner of a vessel for goods supplied for the use of the vessel, Lord 
 Ellenborough held, that a notice to the defendant to produce an or- 
 Captain. der, vvhich he had given to the captain, was sufficient to admit the 
 
 plaintiff into secondary evidence of the contents of the order, 
 though the order itself appeared to be in the possession of the cap- 
 tain: the evidence was held to be admissible, on account of the 
 privity between the owner and the captain, (p) 
 
 Banker. A check given by a party to a third person, which would be 
 
 in the possession of the banker of the party, has been considered 
 as in the possession of the party himself, within the meaning of 
 the rule as to notices for the production of papers. (3) (q) In an 
 action against a sheriff, notice to the defendant's attorney to 
 
 Under-sheriflF. produce a warrant, which, after execution, was returned to the 
 
 (1) 3 Campb. 502. (3) Partridge v. Coates, 1 Ry. & 
 
 (2) 1 Btarkie, N. P. C. 338. Mo. 166. 
 
 (0) See Note 837, p. 1187. {p) See Note 888, p. 11S8. {q) See Note 839, p. 1189.
 
 Sect. 1.] Of the Proo/ of Deeds, Agreements, i^c. 441 
 
 defendain's under sheriff, is sufficient to entitle the plainliff to give Notice to 
 I -1 1-1 / 1 \ / \ produce, 
 secondary evidence ot the contents. (1) (r) 
 
 If one parly calls for books or writings in the possession of the Writing called 
 other pariy, but, when they are produced, declines using them, the J^^'^ "'""' 
 mere calling for them will not make them evidence for the adverse 
 party. (2) It may, said Lord Kenyon, be matter of observation 
 lo the counsel on the other side, that the entries in th'3 books 
 weve in favour of his client, hut cannot entitle him to offer the 
 books in evidence to the jury. If, however, the party who has 
 called for the books, inspects tlieni, he thereby makes them evi- 
 dence for the other party, although he has not used them himself 
 in evidence. (3) (s) Where books are refused, it is a suspicious 
 circumstance, and open to much observation, but it will not be 
 conclusive against the party, (t) The regular time of calling for 
 the production of papers and books, is not until the party who re- 
 quires them, has entered upon his case; till that period arrives, 
 the other party may refuse to produce them, and there can be no 
 cross-examination as to their contents, although the notice to pro- 
 duce them is admitted. (4) " The evidence," said Lord Ellenbo- 
 rougli, in the latter of the cases here cited, " cannot in strictness 
 be anticipated, although it may be rigorous to insist upon the rule, 
 and a close adherence to it may be productive of inconvenience." 
 
 The rule, which requires, that a party shall have previous Notice, when 
 
 notice to produce a written instrument in his possession, before dispensed 
 
 the contents can be proved as evidence in the cause, has been 
 
 made with good reason ; in order that the party may not be 
 
 taken by surprize, in cases where it must be uncertain, whether 
 
 such evidence will be brouglit forward at the trial by the adverse 
 
 party. Uut this reason will not apply to cases, where, from the 
 
 nature of the proceedings, the defendant has notice, that the ., . , 
 
 . . . ^ , . !• Notice from 
 
 plaintiff* means to charge him with the possession of the instru- the proceed- 
 
 ment. It cannot, in such cases, be necessary to give any other '"^*' 
 
 notice, than the action iiself supplies. In an action of trover, 
 
 (1) Taplin v. Alty, 1 Ry. & Mo. (3) VVharam v. Routlege, 5 Esp. N. 
 164. P. C. 235. 
 
 (2) Sayerv. Kitchen, 1 Esp. N. P. (4) Graham v. Dyster, 2 Starkie, N. 
 C. 210. P. C. 23. Sideways v. Dyson, 2 Star- 
 kie, N. P. C. 49. 
 
 (r) See Note 840, p. 1190. (s) See Nolo 841, p. 1190. (i) See Note 842, p. 1192. 
 
 Vol. I. 56
 
 442 . Of the Pi oof of Deeds, Agreements, ^c. [Ch. 0. 
 
 Notice to therefore, for a bond, the plainiifT has been allowed to zive parol 
 prodnco. -irL 11^ 
 evidence 01 the contents, to support the general description of 
 
 the instrument in the declaration, without having given the de- 
 fendant previous notice to produce the original. (1) («) And on a 
 prosecution for stealing a promissory note, or other writing, de- 
 scribed in the indictment, parol evidence of the contents will be 
 received, v.iihout any formal notice lo the prisoner to produce 
 the original. In Aickle's case, (2) on an indictment for steal- 
 ing a bill of exchange, all the judges held, that such evidence 
 had been properly admitted, though it was proved in that case, 
 that the bill had been seen, only a few days before the trial, in 
 a state of negotiation in the hands of a third person, who had 
 been served with a subpana duces tecum, but who did not appear. 
 (v) And in Layer's case, (3) on an indictment for high treason, 
 where it was proved, that the prisoner had shown a person the 
 paper, containing the treasonable matter laid in the indictment, 
 and then immediately put it into his pocket, that person was per- 
 mitted to give parol evidence of the contents of the paper. And 
 in the case of De la Motte, (4) on an indictment for a traitorous 
 correspondence with the French government, where the question 
 was, whether examined copies of the treasonable papers, which 
 bad been secretly opened at the post-office, and copied, and then 
 forwarded to their place of destination, were admissible in evi- 
 dence; the Court held, that they might be admitted, after proof 
 that the originals were in the hand-writing of the prisoner. 
 
 2. Fraaduient jnJqj. ^qq^ [\^q principle of the rule apply to the case, where 
 a party to the suit has fraudulently got possession of a written 
 instrument belonging to a third person; as, where a witness was 
 called, on the part of the defendant, to produce a letter writteu 
 to him by the plaintiff, and it appeared, ihat after the commence- 
 ment of the action he had given it to the plaintiff; in this case, 
 
 (1) How V. Hull, 14 East, 274 Pcott Tr. 170. S. C. Francia's case, 15 How- 
 T. Jones, 4 Taunt. SfiS. Joiley v. Tay- ell St Tr. 941. R. v. Moors, 6 East, 
 lor, 1 Campb. 143. Butcher v- Jarrat, 421. n. 
 
 3 Bos. & Pull. 143. Wood v. Strick- (4) Cor. Builer, J., and Heath, J. 
 
 land, 2 Werivale, 461. O. B. 1781,1 East, P. C. 124, from 
 
 (2) 1 Leach, Cr. C. 330. Butler's MS. of Gould, J. These copies were 
 ease, 13 Howell St. Tr. 1254, which rejected on another ground, because the 
 was a pro.secution for the forgery of a originals li:id not been traced to the pris- 
 bond. oner's possession. See 21 Howell St. 
 
 (3) 6 St. Tr. 263. 16 Iloweli's St. Tr. 737. 
 
 possession 
 
 {u) See Note 843, p. 1 193. ^v) See Note 844, p. 1194.
 
 Sect. ].] Of the Proof of Deeds. Agreements, ^c. 44f3 
 
 ihou'j-h a notice to prorluce had not been siven, parol evidence Notice to 
 ^ ' o ' I produce, 
 of tlie contents was adunited, because the paper belonged to the 
 
 witnfss, and had been secreted in fraudof the subpoena. (I) {w) 
 
 The counteriiart of a deed is evidence against the person who 3. Coanterpart, 
 ' ... . evid nco with- 
 
 signed it, aud against his assignee, wiihon.t giving notice to pro- out uoiiiie. 
 
 duce the original. Thus, in an action against the master of an 
 
 apprentice, for not inseiiing in the indenture of apprenticeship 
 
 the true consi^leration, an averment in the declaration, that A. B. 
 
 by a certain indenture, put himself apprentice to tlie defendant, 
 
 may be proved by that part of the indenture which the defendant 
 
 executed. (2) So, in an action of ejecttnent, upon a condition 
 
 of re-entry for non-payment of rent, against the assignee of a 
 
 lease, proof of the counterpart, executed by the original tenant, 
 
 is sufficient proof of the assignee's holding on the same terms. (3) (x) 
 
 A written paper, which has been dehvered by the defendant Resolutions at 
 
 t 1 ' •' _ public raofet- 
 
 to a person present at a meeting, as a copy of certain resolutions ing. 
 about to be proposed and read, and which is proved to corres- 
 pond with the resolutions actually proposed, is good evidence 
 of those resolutions, without proof of any previous notice to the 
 defendant to produce the paper from which the resolutions 
 appeared to be read. This paper was considered, as against the 
 party to whom it ajjplied, to be fully as good evidence as any tl!at 
 could be produced. (4)(t/) 
 
 Another exception may be mentioned, in the case of an action 4 Action by 
 , • 1 • I 1 • • 11 1 1 seaman. 
 
 by a seaman to recover wages, in which the captain is compellable 
 
 to produce the ship's articles at the trial, though he has not receiv- 
 ed a notice for that purpose, if he would found any objection upon 
 t!iem, or resort to them in making his defence. The statute has 
 introduced an exception to the general rule upon this subject. (5) 
 
 It seems now to be the better opinion, that neither party will P*"''' '" '■'""^' 
 
 ' ' "^ in |)()s3-.-.-;tfiuri 
 
 (1) Leeds v. Coo'c, 4 Esp. N. P. C. (4) R, v. Hunt, 3 Burn. & Aid. 572. party. 
 256. Vide supra, p. 221,3. C, and Gorton 
 
 (2) Burleigh v. Stibbs, 5 T. R. 465. v. Dyson, iu 2d vol. 
 
 (.3) Roe dein. West v. Davis, 7 (5) Bowman v. Maiiz^^lman, 2 
 East, 363. Mayor, &c. of Carlisle Camp. 315. 
 V. Blamire, 8 East, 487. 
 
 (u») See Note 845, p. 1 195 {x) See Note 816, p. 1196. (y) See Note 847, p. 1196.
 
 444 Of the Proof of Deeds, Agrcemeiiis, ^c. [ Ch. 8. 
 
 Notice to be allowed, either in an examination in chief or in a cross-ex- 
 
 ^^l^*!! amination, lo enquire into the contents of a deed, merely because 
 
 the opposite parly has the original deed in his possession, in 
 court, at the time of the trial; and th^it the opposite party may 
 object to such parol evidence of the contents, on account of his 
 not having received a previous notice to produce the original. 
 In the case of Doe on the demise of Haldane.and Urry v. 
 Harvey, (1) the Judges of the Court of King's Bench appear to 
 have diflered in opinion upon this point. In that case, title was 
 deduced to Haldane under a will; but one of the plaintiff's wit- 
 nesses said, on cross-examination, that llaldane had conveyed all 
 interest in the premises to Urry, before the time of the demise 
 in the declaration, and that the deed was in court. Upon this, 
 it was insisted, that, as the plaintiff's witness proved the title out 
 of Haldane, and as the deed of conveyance was in the court, 
 the deed ought to be produced in evidence to show^ a title in 
 Urry, the other lessor of the plaintiff. The counsel for the 
 plaintiff, on the contrary, refused to produce the deed, insisting, 
 that the plaintiff ought to recover under the one or the other of 
 the lessors; for, if the one had parted wiih the title, the other had 
 acquired it. But Mr. J. Aston, who tried the cause, being of 
 opinion, that the plaintiff ought to give further evidence to ascer- 
 tain the title, under which he was to recover the term, nonsuited 
 the plaintiff: and on a motion afterwards for setting aside this 
 nonsuit, Lord Mansfield, after observing that in the action of 
 ejectment the plaintiff could not recover except upon the strength 
 of his own title, said, " It was plain the plaintiff had no title 
 under Haldane, who had conveyed away all the interest in the 
 premises to the other lessor, and that as to his claim of a title 
 under Urry, the plaintiff had not proved any title; the jury 
 could not have found for the plaintiff under the deed of con- 
 veyance to Urry, unless it were produced, and probably there 
 was something in the deed, which would have shown, that Urry 
 bad no title." Lord Mansfield laid the principal stress on the 
 fact of the plaintiff's refusing to produce the conveyance from 
 Haldane, which was admitted to be in court. " The want of 
 notice," he said, " was no objection in this case, because they 
 had the deed in court; and the refusal to produce it warranted 
 
 ■^1) 4 Ihirr. 2484. See Doe dem. \\';irtney v. Grey, I ?t;iikio, N- P C. 2S:>.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c, 445 
 
 the strongest presumption, that neither of the lessors had any Noiioo lo 
 
 produce. 
 
 title." Mr. Justice Aston and Mr. Justice Willes agreed in opin- : 
 
 ion with Lord Mansfield. But Mr. Justice Yates differed fiom 
 therest of the Court. " He founded himself," he said, " upon the 
 rules of evidence. The fact of the conveyance coming ottt on 
 cross-examination could make no difference. The plaintiff's 
 counsel were not obliged to produce the deed, for no man can be 
 obliged to produce evidence against himself: the only consequence 
 of a notice to produce would have been the adujission of inferior 
 evidence." Upon this case it may be observed, that the fact of 
 Haldane's having conveyed away all his interest to Urry seems to 
 have been assumed, as satisfactorily proved; but from the opinion 
 of Mr. Justice Yates, which seems to be the better opinion, it may 
 be collected, that there was no legal proof of any conveyance of 
 title out of Haldane, and that the answer of the witness, upon 
 which the defendant's argument rested, was as inadmissible in 
 evidence on the cross-examination, as it would have been on an 
 examination in chief. The true objection to such evidence is, 
 that the witness was speaking lo the contents of a deed, when 
 there had been no notice given to produce the original; and it 
 does not appear to be a sufficient answer to say that the deed is in 
 court; for, if the party had received a regular notice to produce ii, 
 he might have come prepared with evidence to repel any inference 
 which the production of the deed might have raised against him. (z) 
 
 A parol notice to produce writings may be proved by the Proof of no- 
 person who delivered the notice, or by one who heard it deli- "'^^' 
 vered; (a) and a written notice to produce may be proved by a 
 duplicate original, (1) or by an examined copy of the original. (2) 
 A notice to quit in an action of ejectment, (3) and a notice of the Notice to quit, 
 dishonour of a bill in an action upon the bill, (4) may be proved 
 in the same manner, (by a duplicate original, or by an examined 
 
 (1) Gotlieb V. Danvers, I Esp. N. P. notice to produce the original. And 
 C. 455. Surtees v. Hubbard, 4 Esp N the Court of King's Bench, to whom 
 P. C. 203. the point was referred as a matter of 
 
 (2) Kine v. Beaumont, o Brod. ci general practice, were of the same opin- 
 Bing. 288. 7 Moore, C. P. 112, S. C. ion. 
 
 A copy of a letter, giving notice of the (3) 2 Bos. & Pull. 41. 
 dishonour cf a bill, proved to be a (4) Ackland v. Pearce, 2 Campb. 
 
 true copy, was adjudged by the Court 601. Roberts v. Bradshavv, 1 St:irkie, 
 
 of Common Pleas to be good evidence N. P. C. 2S. Langdon v. iluli'a, 5 Esp. 
 
 of the contents of the letter, without 157. 
 
 («) See Note 848. p. 1197. (a) See Note 84», p. 1197.
 
 44-6 Of the Proof of Deeds, Agreements, S^^c. [Ch. 8. 
 
 Notice to copy,) without notice to produce tlio original in the possession 
 
 ^'^" of the other party, {b) It may be objected, that a duplicate is not 
 
 the best evidence of the contents of the notice delivered, as the 
 supposed duplicate original may be inaccurate, and the contents 
 might be proved to a certainty by the production of the notice 
 itself; but, on the other hand, extreme inconvenience would 
 arise from a stricter medium of proof; for, if a duplicate notice 
 to quit is not sufficient, no more is a duplicate of the notice to 
 produce, and thus notices might be required in infinitum. The 
 practice of allowing such proof of a notice seems further to be 
 sanctioned by this principle, that, as the original delivered is in 
 the hands of llie other party, it is in his power to contradict the 
 duplicate original, or examined copy, by producing the other on 
 trial, if they vary. (1) When a notice may be either in writing 
 or by parol, and the notice is given in both forms, it may be 
 proved in either form. (2) 
 
 Noticfl of Upon the same principle, where a notice is given to a magis- 
 
 action. '. *' .... 
 
 trate previous to the commencement ol an action agamst him, or 
 
 where a demand is made of a copy of a warrant preparatory to an 
 action against a constable, if another paper is made out at the 
 same time, precisely to the same effect as that delivered, both may 
 be considered originals, and the paper so preserved may be receiv- 
 ed in evidence without a notice to produce the one delivered. (3) 
 From analogy to tliese cases, in an action on an attorney's bill, 
 though the plaintiff" cannot produce parol evidence of the contents 
 of the bill delivered, without giving notice to produce it, (4) yet a 
 copy, made out at the same time and proved to be correct, has 
 been admitted to be good evidence. (5) (c) 
 
 Duplicate j^ duplicate which has been taken from an original letter, at a 
 
 copy. ... . , ^ . I • ■ -11 I 
 
 single impression, by means ol a copying machine, is still only a 
 
 copy; and therefore cannot be read, without a previous notice to 
 
 the oihor party to produce the original, (6) (d) orwithout proof that 
 
 (1) T?v I.ord F.ldon, C. J. Jory v. (5) Anderson v ?.'ay, 2 Boa & 
 Orchaid,'2 Bos a Pall. 41. ' I'uil. 2S7. Philipson v. Chase, 2 
 
 (2) Smith V. Young, I Campb. 440. Campb. 110. S. P. 
 
 (3) 2 Bos. & Pull. 39. (6) Nodin v. Murr.iy, ^ Campb. 
 
 (4) Shaw V. Markham, Peake, N. 228. 
 P. C. 164. 
 
 (6) See Note 850, p. 1198. (c) See Note 8-51, p. 1202 (a?) See Note 852, p. 1202.
 
 Sect. 1.] Of the Proof of Deeds, Agreemenis, ^c. 447 
 
 tlie copy, so taken, was afterwards on comparison found to be 
 correct. 
 
 Proof of ha vine sent a notice or oilier paper by tlie post has been Nonce by 
 
 . let tcr. 
 frequently consjidered, in npiCrcantile transactions, to be sufficient 
 
 proof of notice to the party to whom it was directed; and this on 
 
 a principle of general convenience, (e) A question has sometimes 
 
 arisen as to the requisite proof of the fact of sending by the post. 
 
 In the case of Hagedorn v. Reid, (1) where it became necessary 
 
 to prove, that a licence to trade had been sent by the plaintiff to 
 
 A. B., it was proved to be the invariable course of the plaintiff^'s 
 
 office, that the clerk, who copies a licence, sends it oft' by the post, Putting into 
 
 and writes on the copy a memorandum of iiis having done so; a P°^ " 
 
 copy of the licence in question was produced from the plaintiff" 's 
 
 letter- book, in the hand-writing of a deceased clerk, who had 
 
 written a memorandum, stating that the original had been sent 
 
 to A. B., and a witness, acquainted with the plaintiff's mode of 
 
 transacting business, swore, that he had no doubt the original was 
 
 sent according to the statement in the memorandum; this evidence 
 
 was held to be sufficient. 
 
 The case of Hetherington v. Kemp, (2) supplies an instance 
 where the proof of the fact of putting a letter into the post, 
 was held to be deficient. The question being, whether the 
 defendant had received notice of the dishonour of a bill of 
 exchange, it was proved, that, on the day after the bill be- 
 came due, the jilaintiff wrote a letter addressed to the de- 
 fendant, stating 'that it had been dishonoured: that this letter 
 was put down on a table, where, according to the usage of 
 his counting-house, letters for the post were always deposited, 
 and that it was the business of a porter to carry them from 
 thence to the post-office; but the porter was not called, and 
 there was no evidence as to what had become of the letter, 
 after it was put down upon the table. A notice to produce the 
 letter had been served upon the defendant. It was contended 
 for the plaintiff', that this was good prima facie evidence, that 
 
 (1) 3 Campb. 379. See cases in 2d (2) 4 Campb. 193. 
 
 vol. 
 
 (c) See Note 853, p. 1203.
 
 y 
 
 ■i-'i^ Of the Proof of Deeds , Agreements, ^c. [Cli. 8. 
 
 ihe letter had been sent by the post. Lord Ellenboroiigh held, 
 that some evidence < ugbt to be given, that the letter had been 
 taken from the table in the counting-house, and put into the 
 |)Ost-office. Tf the porter had been called, and if he had said, 
 that, although he had no recollection of this particular letter, he 
 invariably carried to the post-office all the letters found upon the 
 table, this might have been sufficient; but il was not sufficient 
 to give such general evidence of the course of business in the plain- 
 lift' 's counting-house. (/) 
 
 Deed pro- If a party, in compliance with a notice, should produce a deed, 
 
 proved. °'' o'^ier instrument called for by the adverse party, the next 
 
 question is, whether the party, who calls for its production, ought 
 to prove its execution, or whether the writing should be admitted, 
 without proof, against the party producing it, as duly executed. 
 The general rule, laid down by Mr. Justice Buller, is, t at "• in 
 civil actions, where a plaintiff wishes to give in evidence a deed 
 in the defendant's custody, he gives the defendant notice to pro- 
 duce it: and the deed, when produced, must prima /acie be taken 
 to be duly executed; because the plaintiff, not knowing who are 
 the subscribing witnesses, cannot come prepared at the trial to 
 prove the execution." (1) In a case of settlement, therefore, 
 where the respondents had given notice to the appellants to pro- 
 duce an indenture of apprenticeship, by which the pauper was 
 bound in the appellant parish, and which indenture was according- 
 ly produced at the trial of the appeal, the Court of King's Bench 
 held, that the court below ought not to have required the respon- 
 dents to prove the execution, but that the indenture should have 
 been admitted prima facie as duly executed. (2) 
 
 In the next reported case on this subject, the case of Gordon 
 and others v. Secretan, (3) Lord Ellenborough, C. J. said, that 
 the case of the King v. Middlezoy had been much questioned 
 at the time, and since over-ruled; and that the production of 
 an instrument at the trial, in pursuance of a notice, would not 
 supersede the necessity of proving it by one of the subscribing 
 
 (1)2T. R. 43. (3) 8 East, 548. Wetherston v. 
 
 (2) R V. Inhabitants of Middlezoy, Edgington, 2 Campb. 94, S. P. John- 
 2 T. R. 41. 5 T. R. 366. son v. Leweliin, 6 Esp. N. P. C. 101. 
 
 (/) See Note 864, p. 1203.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c. 449 
 
 witnesses, as in ordinary cases. And Mr. Justice Lawrence 
 added, tiiat this point had been so ruled by Lord Kenyon in a 
 subsequent case, wliere the adverse party, having notice to 
 produce a written instrument, produced it accordingly at the 
 trial, and Lord Kenyon held, that the party, who called for it, 
 was bound to call one of the subscribing witnesses to prove the 
 execution. In the case of Gordon and others v. Secretan, 
 which was as action upon a policy of insurance on shipped 
 goods, the plaintifl's averred in their declaration, that they were 
 interested in the subject-matter of the insurance, and the de- 
 fendant, intending to dispute that fact at the trial, gave the 
 plaintiffs notice to produce certain articles of agreement made 
 between them and the captain of the ship, by which, as it was 
 contended, the contrary would clearly appear; in pursuance of 
 this notice, the plaintiffs at the trial produced the instrument, 
 attested by two witnesses, and insisted, that the defendant 
 should call one of them to prove the execution. The point 
 was so ruled at nisi prius, and afterwards confirmed by the Court 
 of King's Bench. From this case, therefore, it might be in- General rule, 
 ferred, that, if a party to a suit, in consequence of a notice, 
 produces an instrument executed between himself and others, 
 yet that the other party, though a stranger to the instrument, 
 ought to prove the execution, if he means to avail himself of it in 
 evidence. 
 
 The rule, however, has been properly restricted in certain Exception. ] 
 cases. In the case of Pearce v. Hooper (1,) and action of j ^vhere tl 
 trespass, where the question was, whether the place in which party produc- 
 the trespass was alleged, belonged to the plaintiff as part of a de° the deed, 
 certain estate ; the defendants gave notice to the plaintiff to 
 produce a deed of conveyance, in which the estate had been 
 conveyed to the plaintiff by a description limited to a number 
 of acres, which, it was said, would necessarily exclude the place 
 in question; the plaintiff produced the conveyance, and, on the 
 authority of the cases before mentioned, it was ruled, that the 
 defendant ought to prove the execution, which, as he was not 
 prepared to prove, the instrument could not be received in 
 
 (1) S Taunt. 62. 
 
 Vol. I. 57
 
 460 OJ the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 evidence. But, on a moiion afierwards for a new trial, the Couri 
 of Common Pleas were of opinion that it was not necessary 
 for the defendants in t^iis case to call the attesting witness, to 
 prove the execution. The Court admitted, that tlie mere pos- 
 session of an instrument by one party cannot, in general, absolve 
 the other party who calls for it, from the necessity of producing 
 the attesting witness. " An instance to illustrate this," saiti 
 the Chief Justice 'Mias been propeily put in the case of a will, 
 cited in the case of Gordon v. Secrelan; for, supposing that 
 an heir at law is in possession of a will, and the devisee brings 
 an ejectment, and calls on the heir to produce the will, there 
 the heir claims not under the will, but against the will, and it 
 would be hard, that the will should be taken as proved against 
 him, because he produces it. But that is very different from 
 the case, where a man is called upon to produce a deed, under 
 which he holds an estate. The plaintiff, (added the Chief Jus- 
 tice, with reference to the case then before the Court,) has no 
 interest in the fee simple of the estate, if this deed does not con- 
 vey it: if, then, he produces the deed, under which he claims, shall 
 it not be taken to be a good deed, so far as relates to the execution, 
 as against himself .'"' The other Judges concurred in opinion, and 
 a new trial was granted- 
 
 In the case of Orr v. Morice (I,) {g) which was an action for 
 the use and occupation of premises, against the assignees of a 
 bankrupt, the Court of Common Pleas held, that the deed 
 of assignment of the bankrupt's effects, produced by the de- 
 fendants at the trial, under a notice from the plaintiff, was 
 admissible in evidence, without proof of the execution by the 
 subscribing witness, as it appeared that one of the assignees 
 had continued to occupy the premises for some time after the 
 act of bankruptcy. The principle to be deduced from these 
 cases is, that, when a parly to a suit, in pursuance of a notice, 
 produces an instrument, to which he is a party, and under 
 which he claims a beneficial interest, it will not be necessary 
 that the other parly should call an attesting witness to prove the 
 execution, [h) 
 
 (1)3 Btod. & Bing. 139. 
 (g) See Note 865, p. 1204. {h) See Note 856, p. 1205.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c. 451 
 
 In an action by a lessee against an assignee, if llie defendant Action be- 
 
 •' '"'... f tween tenant 
 
 produce the original lease at the trial, it will not be necessary for and landlord. 
 
 the plaintiff to call a subscribing witness; and the circumstance 
 of the defendant having assigned his interest to a third person, 
 cannot make any difference in the rule. (1) (r) In the last case 
 upon this subject, where the attorney of the lessor of the plaintiff, 
 in an action of ejectment, obtained from one of the defendants a 
 lease of the premises in question, granted to him for a term, in or- 
 der to prevent the defendants from setting it up to defeat the action; 
 this was held to be such a recognition of the lease by the attorney, 
 on behalf of his client, who was to derive a benefit from the pos- 
 session of the lease, as would dispense with the formal proof of ex- 
 ecution, on the production of the instrument from the hands of the 
 attorney. (2) {]) 
 
 Another very reasonable exception to the general rule has been Action ngain^i 
 made, in the case of an action against a sheriff, for taking insuffi- 
 cient pledges in a replevin bond; in which it has been held, that 
 the replevin bond produced by the sheriff, a [)ub!ic officer, whose 
 duty it was to take such bond,) may be admitted, without proof, 
 against him, as duly executed. (3) 
 
 If a party, in cotnpliance with a notice, produces a written instru- How much to 
 fnent in his possession, he is entitled to have the whole read; (4) 
 and if the instrument refer lo others with such particularity as to 
 make it necessary to inspect them, that the sense may be complete, 
 or, referring to other writings, adopt them as part of its own mean- 
 ing, he may insist on having these also read in evidence. (5)(fc) 
 
 Thirdly, as to ihe adnn'ssibility of secondary evidence of writings, 
 which have been lost or destroyed. 
 
 (1) Burnett v. Lynch, 5 Barn. Si been given to the defendant to pro- 
 Cress. 589. duce the bond. The attesting vvit- 
 
 (2) Doe, dem. Tyndale v. Ileni- ness had been subpoenaed by both 
 ing, 6 Barn. & Cress 29. parties, and was present at the trial. 
 
 (3) Scott V. Waithman, 3 Starkie, (4) See ante, p 359. 
 
 N. P. C. 168. Barnes v. Lucas, Ry. (5) Johnson v. Gilson, 4 Esp N. 
 
 & Mo. 264, S. P. There was no P. C. 21. Wheeler v. Atkins, 5 Esp. 
 
 count in the deelaratien, for omitting 246. Falconer v. Hanson, 1 Canjpb. 
 
 to take a replevin-bond. Notice had 171. 
 
 (i) See Note 857, p. 1206. {j) Fee Note 858, p. 1206. (A) See Note 859, p. 1206.
 
 452 
 
 Of the Proof of Deeds, Agreements, ^-c. [Ch. 8. 
 
 Secondarj 
 evidence of 
 v\ ritings. 
 
 If a party intend lo use a deed or any other written instrument 
 in evidence, he ought to produce the original, if he has it in his 
 possession ;(Z) but, if the instrument is in the possession of the oth- 
 er party, who refuses to produce it after a reasonable notice, or if 
 the original is lost or destroyed, secondary evidence, uhich is the 
 best that the nature of the case allows, will then be admitted, (m) 
 And the secondary evidence, if in writing, need not be stamped. (1) 
 
 On non-prc- 
 ductioo. 
 
 In case the other party refuse to j)roduce an original deed or 
 agreeiiient, which is in his possession, and which he has had 
 notice to produce, secondary evidence of the contents will be re- 
 ceived without proof of the execution of the original. (2) After 
 once refusing (o produce, and obliging l)is opponent to resort to 
 secondary proof, he shall not be at liberty to retract, or by produc- 
 ing the original, when it is not wanted, to insist upon the formal 
 proof of its execution. (3)(n) 
 
 On proof of 
 los!). 
 
 If the original has been lost or destroyed, and two or more parts 
 have been executed, the loss or destruction of all the parts should 
 be proved, before secondary evidence of the contents can be receiv- 
 ed (4) (o) ; and the original deed ought to be proved to have been 
 duly executed (5), unless proof of the execution would be dispens- 
 ed with, if the original itself were produced, or unless the want of 
 the original is occasioned by the default of the other party, in which 
 case, the execution may reasonably be presumed against him. (p) 
 So, where an original note of hand is lost, a copy cannot be read 
 in evidence, unless the note is proved to be genuine. (6) 
 
 Power of at- 
 torney. 
 
 On the impeachment of Lord Melville, (7) the Committee of 
 managers, in order to prove the contents of a letter of attorney, 
 (under which, it was said, Mr. Douglas had been authorized by 
 Lord Melville to apply to the Treasury for monies from time to 
 
 (1) Munn V. Godbold, 3 Bing. 292. 
 
 (2) Doxon V. Haigh, 1 Esp. N. P. 
 C. 410. Cooke v. Tanswell, 8 Taunt. 
 450. 2 Moore, C. P. 313, S. C. 
 
 (3) Jackson v. Allen, 3 Stark. N. 
 P. C. 74. 
 
 (4) Bull. N. P. 254. R. v. Castle- 
 ton, 6 T. R. 236. 
 
 (5) R. V. Sii T. Culpepper, Skin- 
 ner, 673, by Holt, C. J. 
 
 {Q) By Lord Hardwicke, C. J. 
 Goodier v. Lake, 1 Atk. 246. 
 
 (7) 29 Howell St. Tr. 714—723. 
 
 (/) See Note 860, p. 1207. (w) See Note 861, p. 1214. (n) See Note 86?, 
 p. 1219. (0) See Note 863, p. 1220. (p) See Note 864, p. 1220. (</) See Nota 
 865, p. 1220.
 
 Sect. I.] Of the Proof of Deeds, Agreements, ^c. 453 
 
 lime, as his pavmaster,) offered in evidence an entry in a book, Secondary 
 
 ' '•' '' . -riii evidence ot 
 
 kept in the excliequer, which book contanied entries of all tne writings. 
 letters of attorney for the receipt of money at the Exchequer. It 
 was satisfactorily proved, that no such letter had been found, on a 
 diligent search, among Mr. Douglas's papers shortly after his 
 death; it was proved also, that an official order had been made 
 out for Mr. Douglas to receive money, under a letter of 
 attorney; and the fact of Mr. Douglas's appointment as pay- 
 master clearly appeared from a letter in Lord Melville's hand- 
 writing, dated only two days after the date of the proposed 
 entry. The clerk of the office also proved, that he had made 
 the entry from the original letter of attorney; which entry pur- 
 ported to contain the names of persons, as attesting witnesses to 
 the letter. After argument, the entry was rejected. " There 
 is no legal proof," said the Lord Chancellor," of Lord Melville's 
 hand-writing; it does not appear, whether the attesting witnesses 
 are living or dead; nor does it appear, that Mr. Douglas ever 
 received any money under that appointment." For these 
 reasons, it was determined, that the managers had not entitled 
 themselves to read the paper. Upon this, the managers proceeded 
 further (1,) and tendered in' evidence a certificate signed by 
 Mr. Douglas as paymaster, and given by him to the Navy-Office, 
 acknowledging the receipt of money by him at the Exchequer; 
 the managers then produced entries in the Bank books, signed 
 by Lord Melville and Mr. Douglas, in the common form of 
 opening an account; and afterwards called a witness, wliose 
 name and description corresponded with the name and descrip- 
 tion of one of the attesting witnesses in the proposed entry; and 
 this witness stated, that he had some recollection, though very 
 slight, (for the entry bore date about 24 years before this time,) 
 of providing a stamp for the power of attorney from Lord Mel- 
 ville to Mr. Douglas, and of attesting it at the navy-pay-office. 
 Upon this evidence, the Lord Chancellor declared his opinion, 
 that the entry was admissible, and the Lords allowed it to Le 
 
 read. (2) 
 
 * 
 
 On the hearing of an appeal against an order of removal, (o) 
 the principal question was, whether one person only, or more 
 
 (1) 29 Howell St. Tr. p. 723— TSO. (3) R. v. StoUe Golding, I Barn. &. 
 
 (2) Ibid. p. 739. Aid. 173-
 
 ^^'i' Of the Proof of Deeds, Jgrcemenis, ^-c, [Ch. 8. 
 
 Secomlary than One, had been appointed overseer in a particular year; the 
 
 evidence of , i • i . , ^ 
 
 writings respondents, who, \n order to vacate an mdenture of apprentice- 
 
 ship, had to prove, tliat only one overseer had been appoinicd 
 in that year, had given notice to the appellants to produce all 
 books and writings in their custody and power, relatin<z to the 
 Appointment ^Ppointnients of overseers; the appellants, being called upon lo 
 cf overseer, produce under this notice, produced one parish book, which was 
 the otdy one in existence, and the parish officer, who produced 
 it, proved that no appointments were kept by the parish; the 
 respondents then proceeded to enquire of a witness, as to iheie 
 having been, in the particular year, one or niore overseers; but, 
 on an objection being taken, the Court of Quarter Sessions held, 
 ' and the Court of King's Bench afterwards confirmed their o|)inioni 
 
 that, as the appointments had been in writing, parol evidence could 
 not be admitted. " The question,'' said Lord Ellenborougb, " is, 
 whether the justices below have done wrong in rejecting the parol 
 evidence. This is clear, that the parol evidence could not be ad- 
 mitted, until the case w'as rijie for the admission of secondary evi- 
 dence; now it could not be considered as ripe for that purpose un- 
 til the respondent parish had exhausted all the proper means of pro- 
 curing the primary evidence. Have they done this? First, as to 
 the appointment itself, they gave a notice to the parish; and, sup- 
 posing the parish had the actual custody, that notice would have 
 been sufficient, but this does not appear. Have they then the legal 
 custody.'' Certainly not; for the legal custody is in the officer, 
 who is the person most interested in the instrument, and who re- 
 quires its production as a sanction for those acts, which he may be 
 called upon to do under its authority. Now, here there has not 
 been any notice to the overseer himself. I think, therefore," added 
 Lord Ellenborough, " that, as in this case there has been an omis- 
 sion of the means of exhausting the primary evidence, recourse 
 could not be had to that of a secondary nature." 
 
 Proof of loss. Proof by a witness, that the paper in question was thrown 
 
 aside as useless, and that ise bt-lie\ cs if lo be lost or destroyed, 
 
 will be sufficient to let in the secondaiy evidence. {)*) This was 
 
 detern)ined by tlie Court of King's Bench in tlie case of .Mr. 
 
 Paper thrown Justice Johtison. (1) A similar point arose in the case of 1 en- 
 aside as use- 
 
 '®^^' (I) 11. V Mr Jiisttce Johissou, 7 East, G(i. 
 
 (;■) See Note 866, p. 1222.
 
 SccT. L] Of Ihc Proof of Deeds, Agreements, ^^c. 455 
 
 sineton v. Iiiiilis, (1) in ilie course of which it became necessary Secondary 
 
 ... . • I • i' • evidence 01 
 
 10 piove ihe loss ol a hcence: ihe witness said, it was his prac- writings, 
 lice to destroy or put aside such hcences amongst the waste 
 pa[)ers of his oflice, as not being of any furtlier use, and that he 
 supposed he had disposed of the licence in question in the same 
 manner as olher licences for ships, whoso voyages had been 
 performed; but was not sure that it was destroyed. The wit- 
 ness added, he had been afterwards applied to for this licence, 
 and searched for it, but lie did not recollect, whether he had 
 found it or not: though he did not think he had found it. Lord 
 Ellenborough, a(iverting to the evidence, in delivering the judg- 
 ment of the Court, said, '•' We are of opinion, that this evi- 
 dence satisfies what the law requires in respect to search, and 
 establishes with reasonable certainty the fact of the licence being 
 lost. It was not to be expected, that the witness should i)e able 
 to speak with more confident certainty to a fact, to which his 
 attention would not be particularly drawn at the time on account 
 of any importance being supposed to belong to it." So in the 
 case of Brewster v. Seuell, (2) (which was an action against 
 the defendant for publishing a libel, charging the plaintiff with 
 having defrauded an insurance-company in settling a loss upon 
 a policy against fire,) where it became necessary, in proof of an 
 averment in the pleadings, to account for the non-production of 
 the policy, with a view to give secondary evidence of its contents, 
 it appeared, that the policy, which had been effected about seven 
 years before, had become useless in consequence of a second 
 policy having been efi'ected: the policy had probably been re- 
 turned to the plaintiff after settling the loss. The clerk of the 
 plaintiff's attorney, a few days before the trial of the action, 
 searched for it in the plaintiff's house, not only in every place 
 pointed out by the plaintiff, but also in every place which the 
 clerk thought likely to contain a paper of this description; the 
 question was, whether this was a sufficient search; the Court of 
 King's Bench held, that it was sufficient. And in the late case 
 of Freeman v. Aikell, when it became necessary to prove the 
 contents of an information, which had been taken before a 
 magistrate, the magistrate proved, that he had delivered the 
 information to the clerk of the peace or to his deputy; the clerk 
 
 (1) 8 East, 27S, 288. (2) 3 Barn. & Aid. 296.
 
 456 Of the Proof of Deeds, Agreements, ^c. [Cli. 8. 
 
 Secondary of the i)eace |)roved also, that no such inforrnaiion was to be found 
 
 evidenco of . i -n i 
 
 writings. in the office; that a bill had been jjresented on the charge in this 
 
 information, wliich was rejected by the grand jury, and that it 
 was usual in such cases to destroy the informations; the Court 
 held that this was a suflicient search, without calling the deputy 
 clerk; for if the information was delivered to the deputy, it was 
 delivered to him as agent for the clerk of the peace, and not for his 
 own purposes; it should not therefore be presumed to be among 
 his private papers, but rather to be among those in the custody of 
 the clerk of the peace. (1) 
 
 Possession in If the Writing in question is traced into the possession of a 
 particular individual, who is alive, he should be called to give 
 some account of the instrument; if he is dead, an inquiry should 
 be made of such persons as must be presumed to have it in their 
 possession. Thus, in a case of settlement, where it was proved 
 by witnesses, that an indenture of apprenticeship consisted of 
 two parts, one of which had been destroyed, and the other had 
 come to the hands of a person, who was living and had not been 
 subpoenaed, but in answer to an application for the other part, 
 he was proved to have said, that he could not find that part, and 
 did not know where it was, the Court of King's Bench was of 
 opinion, that this was not a sufficient ground for admitting parol 
 evidence of the contents. (2) 
 
 In another case of parochial settlement (3,) where it appeared, 
 that only one part of an indenture had been executed, that the 
 pauper and master were both dead at the time of the trial, and that 
 an inquiry for it had been made of the pauper shortly before his 
 death, who said, that the indenture had been given up to him 
 after the expiration of the apprenticeship, and that he had burnt 
 it, and an enquiry had also been made of the daughter and sole 
 executrix of the master, who said, she knew nothing about it; 
 under these circumstances the Court of King's Bench were of 
 opinion, that a sufficient enquiry had been made, to render parol 
 evidence of the contents admissible; and the distinction, taken 
 
 (1) Freeman v. Arkell, 2 Barn. & liams v. Yonnghusband, 1 Starkie, N. 
 Cress. 494, 497. P. C. 139. 
 
 (2) R. V. Castleton, 6 T. R. 236. (.3) R. v. Morton, 4 Maulo & Selw. 
 R. V. St. Sepulchre, 2 Bott. 353. Wil- 48.
 
 Sect. l.J Of the Proof of Deeds, Agreements, ^c. 457 
 
 between this case and the case of the Kine and Caslleton, was, Secondary 
 ,., , ., r r 1-1 I evidmceof 
 
 that in that case there was evidence ol a fact which made a writings. 
 
 further search necessary, but that in this case the same inform- 
 ation which traced the instrument into the pauper's possession, 
 plainly showed, that any further search would have been nugatory. 
 Here, there was no proof, that the instrument ever existed in 
 the possession of die pauper, unless his declaration could be taken 
 as evidence; and if it could, he declared in the same breath, that 
 it existed no longer. When therefore the pauper, by whose in- 
 formation alone the parties were acquainted with the fact of his 
 having had the instrument in his possession, at the very same time 
 declared that it was destroyed, it became unnecessary to search 
 among his papers, (s) 
 
 The party, after accounting for the absence of the original, by Wlmt second- 
 proving its loss or destruction, or that it is in the possession of the admissible'^*' 
 other party, who after receiving notice, refuses to produce it, may 
 read a counterpart; or, if there is no counterpart, an examined 
 copy: or, if there should not be an examined copy, he may give 
 parol evidence of the contents. (1) (t) The recital of a deed in 
 another deed is evidence of the recited deed, if the original is lost, 
 against the party who executed the reciting deed, or against any 
 person claiming under him. (2) (tt) And when possession has 
 gone along with a deed during many years, the original of which 
 is lost or destroyed, an old copy or abstract may be given in evi- 
 dence, tliough not proved to be true, because in such case it may 
 be impossible to give better evidence. (3)* 
 
 (1) Villers v. Viliers, 2 Aik. 71. (2) Com. Dig. tit. Evidence, (B. 5.) 
 
 Bull. N. P. 294. Doxon v. Haigh, 1 Sljipvvilh v. Shirley, 11 Vea. 64. 5 
 
 Esp. N. P. C. 409. Waller v. Horsfall, Barn. & Cress. 601. 
 1 Campb. 501. Fisher v. Samuda, 1 (3) Buller, N. P. 254. 
 
 Cainpb- 192. Liebman v. Pooley, 1 
 Slarkie, N. P. C. 167. 3 Biiig. 295. 
 
 • The loss of a deed by time and accident, or by any other casualty, is a 
 sufficient reason :or dispensing with a profert in pleading, when olIierwisK a 
 profert might be necessary; (Read v. BrooUman, o T. R. 151. Bolton v. Bp. 
 of Carlisler 2 H. Blaclc. 259,) or it may be pleaded, that the deed is in the 
 hands of the opposite party, or destroyed by him (Tolty v. Nesbilt. 3 T. R. 
 153, n. (c).) But if the plaintiff, instead of declaring upon the deed, as lost 
 or destroyed, inadvertently pleads with a profert, (by which ho takes upon 
 himself to aver the e.xis'.ence of the instrument, and otfers it in court, where it 
 is supposed to remain,) and the defendant pleads non est factum, the plaintiff 
 will not be allowed to prove the destruction or loss at the trial, and must bo 
 
 (j) See Note 867, p. 1223. (/) Sec Note 868, p. 1224. (?0 See Nolo 869, p. 1235. 
 
 Vol. I. 58
 
 458 Of the Proof of Deeds, Agreements, ^-c. [Ch. 8. 
 
 Secondary A witness, in speaking to the contents of a lost writing, may 
 
 cvidGncs Gi 
 
 writiu''9. assist his recollection by entries in his memorandum-book; but 
 
 these entries are not in tliemselves admissible in evidence; so that, 
 if the witness has not the meinorandum-book at hand, ready to be 
 Memorandum |)roduced, no objection can be taken on account of its absence. (v) 
 ''°°'^" In the case of Kensington v. Inglis, before cited, (1) the witness, 
 
 who proved the loss and contents of a licence, had kept a memo- 
 randum-book, in which he made entries of licences for his own in- 
 formation, and for the information of the governor of the country, 
 who granted the licences; he gave it to the governor, but did not 
 know where the book then was, or what the governor had done 
 with it. As to the non-production of the memorandum-book, said 
 Lord Ellenborough, that book, if it had existed, and been in the 
 witness's hand ready to be produced, could not have been. produced 
 at the trial, in proof of the fact of granting any particular licence; 
 the only use which it could be allowed to answer, being by way of 
 memorandum, to refresh the memory of the person who made the 
 entries, when he should be called as a witness. 
 
 Degree of Examined copies, and the parol evidence of witnesses, are the 
 
 dence ^^^ ^^'' oi'^inary and regular proof of the contents of lost writings, (to) 
 But when a written paper has been traced into the possession 
 of one of the parties to the suit, and he does not produce it after 
 receiving a notice, something less than an examined copy may 
 reasonably be admitted as sufficient, at least to oblige the party 
 to give better evidence by producing the paper itself, if he finds 
 the secondary evidence incorrect. In a late case, where it ap- 
 peared that the defendant had acknowledged the receipt of a 
 letter of a particular date, which was not produced at the trial 
 when required, it was ruled, that an entry in a letter-book, (pur- 
 porting to be a copy of a letter of the same date from the 
 plaintiff to the defendant, and inserted by a deceased clerk, who 
 kept the book according to the course of business, and with 
 
 (1) S East, 279, 289. 
 
 nonsuited. (Smith and otiiers v. Woodward, 4 East, 585.) If the deed has 
 been lost or destroyed after the commencement of tlie action, the plaintiff should 
 move to put off the trial and amend the pleadings, stating the circumstances to ex- 
 cuse the p/ofert. (Ibid ) But it would be too late to make such a motion at nisi 
 prius. (Paine v. Buslin, 1 Starkie, N- P. C. 747. 
 
 (f) See Note 870, p. 1239. (w) See Note 881, p. 1240.
 
 Sect. 1.] Of the proof of Dee Js, Agreements, ^c. 459 
 
 great punctuality,) was admissible evidence of the contents of the ^^'|^j°g"|^^fj^j. 
 letter in question. (1) " The rules of evidence," said Lord Ellen- writings. 
 borough, " must expand according to the exigencies of society; 
 this entry is reasonable evidence to prove the contents of the letter 
 of the particular date, which the defendant acknowledges he 
 received, and which he does not produce upon a notice for that 
 purpose: we know, it is the habit of merchants to keep such a 
 book, and a witness has sworn, that the book in question was kept 
 with great punctuality; if the entry in the clerk's hand-writing 
 were not admitted, there would be no way, in which the most care- 
 ful merchant could prove the contents of a letter after the death of 
 his entering clerk. I will therefore allow," added Lord Ellen- 
 borough, " the entry to be read diS, prima facie evidence, and the de- 
 fendant may rebut it by producing the original. "(a:) 
 
 The case of Bullen v. Michel, (2) which has been lately ^JSTntJofan- 
 determined, affords an example respecting the admissibility of cient writing, 
 secondary evidence of ancient documents. In that case, on an 
 issue to try, whether a particular farm in the parish of S. was 
 discharged of tithes on payment of a modus, the Court of Ex- 
 chequer determined, that an old ledger or chartulary of the 
 abbey of Glastonbury was admissible, as secondary evidence of 
 the endowment of the vicarage. Two questions arose, one 
 with respect to the custody, from which this document was pro- 
 duced, which will be afterwards mentioned; the other, (supposing 
 it to have been sufficiently authenticated i\s to the propriety of 
 its custody,) whether it could be admitted in evidence between 
 the parties to the issue, the vicar and the occupiers of the farm. 
 With respect to this it appeared, that the chartulary contained 
 an account of matters of a miscellaneous description; among 
 other things, it contained entries, which appeared to be trans- 
 cripts of contemporaneous documents considered as autlientic: 
 and these transcripts purported to give an account of the licence 
 
 (1) Pritt V. Fairclough, 3 Campb. lo be evidence of the contents of the 
 
 305, hy Lord Ellenborough. See also power, after reasonable proof of the 
 
 Roberts v Bradshaw, 1 Starkie, N. P. loss of the original. Vide supra, p. 453. 
 C. 28. In Lord Melville's case, (29 (2J 2 Price, 39y. Judgment af- 
 
 Howell, St. Tr. 734 — 740,) an entry firmed in the House of Lords, 4 Dow. 
 
 of a power of attorney, in the office- 29S. Wolley v. Brownhill, 13 Price, 
 
 books at the exchequer, was adjudged 507, 503. 
 
 (x) See Note S72, p 1242.
 
 460 
 
 Of the Proof of Deeds, A^ireements, ^c. [Ch. 8. 
 
 Secondarj 
 eviilencc of 
 writings. 
 
 of appropriation of the parish, and hkewise an account of the 
 several matters of endowment. The original endowment not 
 being found in the places, where search had been made for it as 
 its natural place of deposit, the Court i)eld thai the chartulary, 
 which had been found in the custody of the Marquis of Bath, (and 
 which must, therefore, be considered as having come from the 
 custody of the rector, for the abbot was formerly the rector,) 
 was admissible evidence. (1) The plaintiff appealed from this 
 judgment to the House of Lords, who affirmed the judgment of 
 ihe Court of Exchequer. Lord Redesdale, in giving his opinion 
 on that occasion, slated, (2) " that the original instruments, if 
 they could have been produced, would have stood on the same 
 ground as the taxation of Pope Nicholas, inquisitions on the 
 writ of ad quod damnum-, and a variety of similar evidence from 
 which the jury may draw iheir inference. The only question 
 then is, whether the entries in this book are evidence of these 
 two instruments. If the originals could be produced, these 
 entries would not be evidence. But search has been made, and 
 the originals cannot be found; and if we shut our eyes to that 
 sort of inferior evidence in cases where no other can be had, we 
 shall constantly do injustice. The best evidence is often lost 
 through carelessness, the injuries of time, and various other cir- 
 cumstances; and secondary evidence is then admitted, to raise 
 presumption or inference, where no direct evidence can be had. 
 This then is the next best evidence; and perhaps evidence still 
 more inferior might have been admitted, if this could not have 
 been produced. This, however, appears to be the best after the 
 originals. For these two instruments seem to have been copied 
 by a person employed for the purpose, probably one of the 
 monks, and deposited among the muniments of the abbey, be- 
 cause it was important for the interests of the abbey, that the 
 instruments should be preserved; and for the same reason it 
 might be presumed, that they were faithful copies; at least 
 there appeared to have existed no motive to make them other- 
 wise, and they were found in a situation where they were likely 
 to be kept." 
 
 (1) Wood B. differed from the rest 
 of the Court on this point. And eeo 
 18 Price, 50S. 
 
 (3) 5 Dow. 824. 2 Price, 399.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c. 461 
 
 There has been some difference of opinion on the subject of Copy of en- 
 ihe admissibihty of examined copies of the enrohnent of a deed, deed!" 
 The Ch. B. Gilbert makes the following distinctions on this 
 subject: "Where a deed needs enrolment," he says, (as 
 deeds of bargain and sale, by statute 27 Henry VIII. c. IG.) 
 " there the enrolment is the sign of the lawful execution of such 
 deed, and the officer, appointed to authenticate such deeds by 
 enrohnent, is also empowered to take care of the fairness and 
 legality of such deeds, and therefore a copy of such enrolment 
 must be sufficient; for when the law has appointed them to be 
 made public acts, the-copy of such public acts shall be a sufficient 
 attestation." (1) " But where a deed needs no enrolment, (con- 
 tinues Ch. B. Gilbert,) theie, though it be enrolled, the inspexi- 
 vius of such enrohnent is not evidence, because, since the officer 
 has no authority to enrol them, such enrolment cannot make 
 them public acts, ^.and consequently cannot entitle the copy of 
 them to be given in evidence; for then, if the deed were doubtful, 
 it were but to enrol it, and bring the copy or inspeximus in evi- 
 dence, and thereby avoid producing a deed that was any way 
 suspicious." (2) 
 
 Mr. Justice Buller, after citing the rule from Chief Baron 
 Gilbert, (that deeds of bargain and sale, enrolled and requiring 
 enrftlment, may be given in evidence without proof of the execu- 
 tion,) observes, (3) that " the law may well be doubted, notwith- 
 *' standing that such deeds of bargain and sale enrolled have 
 " frequently in trials at nisi prius been given in evidence without 
 " being proved. In support of this practice," he adds, " the 
 " case of Smartle v. Williams (4) is much relied on; but that 
 *' case is wrong reported, for it appears from the report in 
 " Levinz, (5) that the acknowledgement was by the bargainor, 
 *' and so it is stated in Salkeld's manuscript; besides, it appears 
 " from both the books, that it was only a term that passed, and 
 " consequently it was not an enrolment within the statute." Mr. 
 Justice Buller then cites a case from Styles's Reports, (6) where 
 
 (1) Gilb. Ev. 86. Baikie v. Chan<!- (2) Gilb Ev. 86. 1 Keb.'llT. 
 
 less, 3 Campb. 21. Garrick v. Wil- (3) Bull. N. P. 25G. 
 
 liams, 3 Taunt. 544. Taylor v. Jones, (4) 1 Salk. 280. 
 
 1 Ld. Raym. 746. 1 Keb. 117. 1 Salk. (6) 3 Lev. 387. S. C. 
 
 280. (6) Thurle v. Madison, Styl. 462.
 
 462 Of the Proof of Deeds, Agreements, ^c. [Cli. 8. 
 
 Copy of Gh'n C. J. is reported to have said, that, " if divers persons oeal 
 
 enrolment. ; ijjiijj 
 
 a deed, and but one ol them acknowledge the deed, and tl)e deed 
 
 is thereupon enrolled, this is a good enrohnent, and may be 
 given in evidence at a trial, as a deed enrolled. " But it would 
 " be of very mischievous consequence," observes Mr. Justice 
 Buller, " to say, therefore, that a deed, enrolled upon the ac- 
 " knowledgment of a bare trustee, might be given in evidence 
 " against the real owner of the land, uitl)out proving it executed 
 " by him. However, that lias been the general opinion, and it 
 " seems fortified in some degree by statute 10 Anne, c. 18. On 
 " the other hand, it seems as absurd to say, that a release, which 
 " has been enrolled upon the acknowledgment of the releasor, 
 " shall not be admitted in evidence against him, without being 
 " proved to be executed, because such release does not need 
 " enrolment: and in fact such deeds have often been admitted: 
 " and that was the case of Smarlle v. Williams; the deed there 
 " did not need enrolment yet, being enrolled on the acknow- 
 " ledgment of the bargainor, it was read against him without be- 
 " ing proved." 
 
 Bargain and I" the case of Smartle v. Williams, an examined copy of ihe 
 
 sale of ternfi. enrolment of a deed of bargain and sale, by which a term of 
 years was assigned, was offered in evidence without any proof of 
 the bargainor's sealing and delivery. It was objected, that the 
 copy of the deed enrolled was not evidence, because the interest 
 assigned, being only a term, passed immediately, and the enrol- 
 ment afterwards is no more than an enrolment of an obligatien: 
 but the Court over-ruled this objection, and held, that " the 
 acknowledgment of the deed by the lessor before the master in 
 Chancery is good evidence against himself, and against all who 
 claim under him." (1) So, in the case of Lady Holcroft v. 
 Smith, (2) a distinction was made between deeds of bargain and 
 sale (enrolled in pursuance of the statute of Henry VIH.), and 
 other deeds enrolled, and it was held, that a copy of a deed, 
 enrolled for safe custody, would not be evidence otherwise than 
 against the party who sealed it, and all claiming under him. 
 It does not appear from any of the authorities cited by the Chief 
 
 (1)3 Lev. 387. Com. Dig. tit. (2) 2 Freeman, 259. 
 Evidence, (B. 1.)
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c. 463 
 
 Baron Gilbert, (excepting the case of Smartle v. Williams,) Copy o<"cnrol- 
 
 against what party the copy of the enrolment was offered in evi- 
 
 dence. If the enrolment had been on the acknowledgment of 
 the bargainor, and offered as evidence against him, there cannot 
 be a doubt of its being admissible. 
 
 With regard to a copy of the cnrohiient of a deed of bargain Bargain and 
 and sale, indented and enrolled in pursuance of the statute of hold. 
 Henry VIII., it is enacted by statute 10 Anne, c. 18. s. 3. (1) 
 " (which was passed for supplying a failure in pleading or de- 
 riving title to lands, &c. conveyed by such deeds of bargain and 
 sale, where the original indentures are wanting, as often happens, 
 especially where divers lands, &c. are comprised in the same in- 
 denture, and afterwards derived to different persons,) that, 
 where any such indenture of bargain and sale enrolled shall be 
 pleaded with a profert, the party so pleading may show forth 
 and produce a copy of the enrolment; and such copy, examined 
 with the enrolment, and signed by the proper officer, having the 
 custody of the enrolment, and proved upon oath to be a true 
 copy, shall be of the same force and effect as the indenture of 
 bargain and sale would be, if produced." Before this statute, 
 an enrolment of the deed could not have been pleaded; and 
 though a deed had been exemplified under the great seal, yet it 
 was necessary, at common law, to show forth the deed itself 
 under seal, and not the exemplification (2) So, by the common 
 law, a constat or inspeximus of the king's letters patent could not 
 have been shown forth in court, but the letters patent themselves; 
 but the statute 3 & 4 Ed. VI. c. 4., explained by stat. 13 Eliz. c. 
 G., " palentees, and persons claiming under them, may make title 
 in pleading by showing forth an exemplification of the enrol- 
 ment of the letters patent, as if the letters patent themselves were 
 pleaded and shown forth;" and now they are to be given in evi- 
 dence, in the same manner as if they were pleaded. (3) 
 
 The rule concerning copies of enrolments appears then to be, ' 
 that an examined copy of the enrolment of a bargain and sale 
 of freehold in lands, pursuant to the statute of Henry VIII., is 
 
 (1) See also stat. 8 G. 2. c. 6. s. 22., (2) Co. Litt. 22.5. b. 
 concerning deeds of bargain and sale (3) Olive v. Gwyn, Hardr. 119. 
 of lands, in the North Riding of York- 
 shire.
 
 ^^^ Of the Proof of Deeds, Jirreements, ^c. fCh. 8. 
 
 ^°jy °''^"^°'-as good evidence as an examined copy of the original iiself; 
 
 and where ihe original is wanting, (as where it has been lost or 
 
 destroyed, or where different parcels of land are comprised in 
 liie same indenture and afterwards derived lo different persons,) 
 (1) a copy of the enrolment signed by the proper officer, who has 
 the custody of the enrolment, and proved by oath to be a true copy, 
 will have the same force and effect as the original itself would 
 have, if produced. (2) (y) But a copy of the enrolment of a bar- 
 gain and sale of a chattel interest, or of any other deed enrolled 
 for safe custody, is not admissible in evidence, except as against the 
 party acknowledging the deed, or persons claiming under him, 
 an examined copy of the enrolment of any deed is admissible an(i 
 equivalent to an examined copy of the original deed.* (z) 
 
 Fourthly, of the proof of execution of deeds and other writ- 
 ings. 
 
 Proof of exe- 
 cution, by 
 subscribing 
 \vitne83. 
 
 The general rule is, that a deed cannot be given in evidence 
 without proof of its execution, (a) The execution of every at- 
 tested instrument, whether under seal or not, ought to be 
 proved by a subscribing witness, if he can be produced, and is 
 capable of being examined. (3) The subscribing witness alone 
 is competent to prove the execution, because he may be able 
 to state the time of the execution and some circumstances of 
 
 (1) See preamble of sect. 3. 10 & 11 earliest times. The ancient process for 
 Anne, c. 18. bringing the subscribing witness into 
 
 (2) St. 10 Anne, c. IS. s. 3. See court, is stated in Fortescuc de Laud. 
 14 East, 231. 1 Schoal. & Lefr. 207. Leg. Ang c. 32. See also Jen ins cent. 
 
 (3) This has been the rule from the p. 47. case 89. 
 
 * The enrolment of a bargain and sale under the statute of Henry the Eighth is a 
 record; thn dale of the enrohiient is a material part of the fact of the record, and 
 proof, or an averment, of a diHerent date is not admissible. (The King in aid of 
 Reed v. Hopper, 3 Price, 495. 511.) An examined copy of the memorial of an as- 
 signment of a judgment, (the memorial being required by act of parliament,) is evi- 
 dence of the fiict of the assignment; and the attested copy of the men.orial of the 
 registry of a deed is evidence of the fact of registry. (Hobhouse v Hamilton, I 
 Schoal. & Lefr. 257.) An e.vamined copy of the enrolment of the memorial of 
 an annuity-deed is evidence of the contents of the original memorial, against a de- 
 fendant, who prepared and carried the memorial to be enrolled. (Baikie v. Chand- 
 less, 3 Campb. 20. Action against an attorney for negligence in respect to a memo- 
 rial of annuity.) 
 
 (y) 8«e Note 873, p. 1243. (?) See Note 874, p. 1243. (a) See Note 875, p. 1261.
 
 Sect. 1.] Of the Proof of Deeds, /Igreementa, ^-c. 465 
 
 the transaction, vvliicli may bo material and unknown to other ^•"""/"'^ °'^" 
 
 •' . • r ecution. 
 persons. On an indictment therefore against an a|)prentice for en- 
 
 listing himself in tho army, all the judges held, that the inJenturo 
 
 of apprenticeship conld not be proved by the master, but that it 
 
 was necessary to call one of the subscribing witnesses. (1) {b) 
 
 This rule is so strictly observed, that an acknowledgment of 
 the obligor himself, admitting that he executed a bond, (2) and 
 even an admission by the defendant in an answer to a bill filed 
 against liira for a discovery, (3) will not dispense with the 
 testimony of the subscribing witness; for though the party may 
 acknowledge the bond, yet he may not know every circum- 
 stance attending the execution; " a fact may be known to the 
 subscribing witness, not within the knowledge or recollection of 
 the obligor, and he is entitled to avail himself of all the know- 
 ledge of the subscribing witness relative to the transaction." (4)(c) 
 The rule is precisely the same, whether the acknowledgment is 
 ofTered as evidence against the party himself who made it, (5) 
 or against a third person; (G) or whether the deed is an existing 
 instrument or cancelled; (7) or whether it is the foundation of 
 the action, or comes in collaterally as part of the evidence in the 
 cause. (8) {dy 
 
 The same rule applies equally to all written instruments, which Itistraments 
 are attested. Attested notices to quit, (9) attested warrants to "*'^ ""''^'' ^^'^'^ 
 distrain, (10) attested bills of exchange or promissory notes, are 
 to be proved by the attesting witness; and in the case of a 
 notice to quit, the circumstance that the parly upon whom 
 
 (1) R. V. Jones, East, P. C. S22. 1 Jones v Langworlliy, 5 T. R. 366; 
 Leach, Cr. C. 208. S. C. R. v. Harring- and as to the case of II. v. Middlezoy, 
 worth, 4 Maule & Selvv. 350. on the authority of wliich that case was 
 
 (2) Abbot V. Plumbs, 1 Doug. 216, determined, vide supra . p. 448. 
 cited by Lawrence, J., 7 T. R. 267, and (4) Le Blanc J. 4 East, 53. 
 2 East, 1S7. In an action of covenant, (5) 4 East, 53. 
 
 payment of money into court, on one (6) I Dougl. 216. 
 
 of the breaches, is a-i admission by the (7) Breton v. Cope, Peake, N. P. C. 
 
 defendant, which dispenses with proof 30. 
 
 of the execution of the deed, although (8) Manners, q t. v. Poslan, 4 Esp. 
 
 one of the pleas pleaded in the plea N. P. C. 239. 
 
 of non est factum. Randall v. Lynch, (9) Doe, dem. Sykes v. Durnford, 2 
 
 2 Campb. 357. Maule & Selw. 62. 
 
 (3) Call V. Dunning, 4 East, 53 (10) Iliggs v. Dixon, 2 Sturkiu, N. 
 See Bowie and another, Assignees of P. C. ISO. 
 
 (6) See Note 876, p 1261 (c) See Note 877, p 1283. {d) See Note 87S, p. 1263. 
 Vol.. I. 59
 
 466 Of the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 Proof of exe- the notice was served, read the notice, and made no objection to it, 
 
 ' cannot vary the rule. (1) (c) In all these cases, the attesting witness 
 
 ought to be called to prove the execution, if he can be j)roduced. If, 
 indeed, the attorney to a party to the suit admit the execution of 
 the instrument, or agree that the other party should act upon the 
 instrument, as if the witness himself had been produced, or if he 
 admit merely the hand-writing of the subscribing witness, such 
 admission would dispense with the testimony of the subscribing 
 witness. (2) (/) 
 
 Attesting wit- If a deed is attested by a single witness, and that attesting 
 te^nt^. '"*^°'^^^' witness is disqualified by interest from proving its execution, (not 
 having been, at the time of the execution, incompetent to attest,) 
 the execution is to be proved by proof of the signature of the 
 attesting witness. (3) {g) But the other party cannot object to an 
 attesting witness, as incompetent on the ground of interest, after 
 having requested him to attest the execution, with full knowledge 
 of the situation in which he stood. (4) 
 
 Execution un- ^]^q subscribing witness is to prove the delivery of the deed, or if 
 
 derpovper. .... / 
 
 the wntmg is not under seal, the hand-writing of the party. If the 
 person, who signed the instrument, signed it for another under a 
 power of attorney, the power ought regularly to be produced and 
 proved. (5)(/i) It is not absolutely necessary that the witness should 
 see the parly sign or seal: if he sees him deliver it already signed 
 and sealed, or merely sealed, as his own deed, it will be sufficient. 
 Nor will it be necessary for him to prove, that blanks, which had 
 been left in the instrument for the purpose of being filled up, were 
 filled up at the time of the execution. (6) Some evidence of the 
 identity of the party, who executed, is obviously necessary. (7) 
 
 Signing. Signing is not an essential part of a deed at common law; 
 
 (1) 2Maule& Selw. 62. (5) Johnson v. Mason, 304. 1 Esp. 
 
 (2) Laiog V. Raine, 2 Bos. & Pull. N. P. C. 89, 116. 
 
 85. Goldie V. Shuttleworth, 1 Campb. (6) England v. Roper, 1 Starkie, N. 
 
 70. Young V. Wright, 1 Campb. 140. P. C. 304. 
 
 Milward v. Temple, 1 Campb. 375. (7) Bull. N. P. 171. Middlelon v. 
 
 (3) Vide infra, p. 474. Siindford, 4 Campb. 34. Nelson v. 
 
 (4) Honeywood v. Peacock, 3 Campb. VVhittal, 1 Barn. & Aid. 20. Parkins 
 196. V. Havvkshaw, 2 Starkie, N. P- C. 
 
 239. 
 
 («) See Note 879, p. 1265. ( / ) See Nolo 880, p. 1265. (§•) See Note 881, p. 
 1265 {h) See Note 882, p. 126S.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c. 467 
 
 but it has been required in some cases by act of parliament, and is J^''°°^^j^^ 
 
 often requisite for llie due execution of powers. In such cases, 
 
 therefore, signing is as necessary as sealing, (i) 
 
 Sealing is essential to a deed; but it is not material with what Sealing, 
 seal it is sealed, {j) Any number of parties may use the same 
 seal. (I) If there be twenty to seal one deed, (says the author of 
 the Touchstone,) and they all seal upon one piece of wax and 
 with one seal, yet if they make a distinct and several prints, this is 
 sufficient sealing, and the 'deed is good. (2)(/c) Or one may seal 
 for the rest with their consent, and the deed will be as binding, as 
 if everyone had put his several seal. (3) Thus, where one of two 
 defendants, in the presence of the other and by his authority, 
 executed a bill of sale for them both, the two defendants being 
 partners in the transaction, but there was only one seal, and it did 
 not appear, whether the seal had been put twice upon the wax, . 
 the Court of King's Bench held that no particular mode of delivery 
 was necessary; and that it was sufficient, if a party executing a 
 deed treated it as his own. The report adds, that the Court relied 
 principally on the circumstance, that the deed had been executed 
 by one defendant for himself and the other, in the presence of 
 the other. (4) (Z) If a bond, executed abroad, is declared upon 
 in the usual form, as a deed made and sealed by the defendant, 
 and the instruinent on being produced appears not to have a seal, 
 but instead of it a pen-mark of a particular kind, evidence is 
 admissible to show, that it is the custom of the country to execute 
 bonds in this manner. (5) (m) 
 
 With regard to the delivery of a deed, no particular form or Delivery of 
 ceremony is necessary; it will be sufficient, if a party testifies 
 his intention in any manner, whether by action or by word, to 
 deliver or put it into the possession of the other party; as, if a 
 party throw the deed upon a table, with the intent that it may 
 be taken by the other, who accordingly takes it; or, if a stranger 
 
 (1) Perkins, ch. 2, s. 135. Sheph. (3) 4 T. R. 314. 
 
 Touch. 55. Com. Dig. tit. Fait. (4) Ball v. Dunstervilie and an- 
 
 (A 2.) other, 4 T. R. 313. 
 
 (2) Touchst. ch. 4, p. 55. Filzh. (5) Adam v. Kerr, 1 Bos. & Pull, 
 tit. Feoffment, pi. 103. SCO. 
 
 (i) See Note 8S3, p. 1269. (;) See Note 881, p. 1277. (/e) See Note S85, p. 
 1280. (I) See Note 886, p. 1281. (m) See Note 887, p. 1281.
 
 468 
 
 Oj lite l^roofof Dtfjis, Agreements^ <^c. [Cli. S. 
 
 Troof of 
 execution. 
 
 Corporation 
 
 deliver it with the assent of the party to the deed. (I)(n) If the 
 deed is made by a corporation, actual delivery is not required; 
 and fixing the common seal, that is the corporate seal, or any 
 other used for the occasion, (2) is tantamoinil to a delivery; (o) 
 but if the corporate body has given a letter of attorney to deliver, 
 the deed is not theirs until delivered. (3) 
 
 It has been before mentioned, that proof of delivery, without any 
 proof of signing or sealing, will be sufficient evidence of execution; 
 for the party, by delivering a deed purporifng to be his own, adopts 
 the seal and the signature. But, under particular circumstances, 
 less evidence has been admitted to prove the execution. It ap- 
 peared, in one case, that the defendant, a few minutes after having 
 executed the deed, brouglit it to the witness in an adjoining room, 
 and desired him to attest it; another attesting witness was still in 
 the room, where the deed had been executed; and it was further 
 proved, that the witness was acquainted with the defendant's hand- 
 writing, and that the defendant knew of his being acquainted with 
 it: and that the defendant had acknowledged the instrument; but 
 there was no proof of the act of delivery, and no reason was 
 shown, why the other attesting witness could not be called to 
 prove the delivery; in this case the Court of Common Pleas was 
 of opinion that the whole might be considered as one transaction, 
 and that there was suflicient proof of the execution. (4) 
 
 F.xecciion of The distinction between execution of deeds at common law, 
 powtrs. ^^j executions under powers, is fully established. It is a well- 
 
 known rule, that all the formalities and circumstances, pre- 
 scribed by a power, are to be strictly observed. If a particular 
 number of attesting witnesses is required, there must be that 
 number. If they are to attest in a particular form, that form 
 must be followed, and they must attest every thing that is ne- 
 cessary for tlie execution of the power. The following are the 
 latest cases that have been determined upon this subject. (5)(p) 
 
 (1) TLorougligood's cnse, 9 Kop. (4) Pnike v. Meais, 2 Bos. & Tul!. 
 1S7, a. Com. Dig. til. Evidence, 217. Powel v. BlacUet, I E?p. N. P. 
 fA. 3.) Co. Liu. ,*53C, a. [Note 223.] C. 96. Greilier v. Ncn!e, Peake, N. 
 2 Barn. & Cress 82. P. C. 146. 
 
 (2) Perkins, c. 2, s. 132. (5) Tiiis subject is fully considered 
 
 (3) Co. Lin. 36, a. [Note 222.] in Sugdcn's Treatise on Powers. 
 
 in) See Note 8S8,p. 12S1. (o) See Note 883, p. 1286. (p) See Note 890, p. 1287.
 
 Sect. 1.] Of the Proof of Deeds^ Agreements^ ^c. 469 
 
 {n the case of Wridit v. Wakeford, (1) where a power was Proof of 
 
 ° \ r I execution. 
 
 created, to be executed by trustees, with the consent of the 
 
 cestui que trusts testified by writing under their hands and seals^ 
 attested by two or more credible witnesees., but the attestation ex- gi,„|;^tute°" 
 pressed only, that the deed had been scaled and delivered by the 
 cestui que trusts and the other parties in presence of the sub- 
 scribing witnesses, the majority of the Court of Common Pleas 
 determined, that the power had not been duly executed; for the 
 question is to be determined by the true construction of the terms 
 of the attestation, and by that alone; and the word " scaled," 
 according to its true acceptation and ordinary sense, cannot be 
 considered as implying that the [larties who put their seals to 
 the instrument, put also their hands to it, or signed it in the pre- 
 sence of the witnesses. It was further determined in this case (2), 
 that a subsequent attestation, indorsed upon the instrument after 
 the death of one of the cestui que trusts^ and expressing that the 
 parties had also signed in the presence of the subscibing wit- 
 nesses, would not cure the original defect; on the ground, that 
 the attestation, to constitute a due and effectual execution of the 
 power, ought to make a part of the same transaction with the 
 signing and sealing, such being the usual and common way of 
 attesting the execution of all instruments requiring attestation. 
 
 In the late case also of Doe, on the demise of Mansfield v. 
 Peach, (3)* where the power was directed to be executed " by 
 
 (1) 4Taunt. 214 ; Mansfield C. J. (2) See also 17 Ves. 457. 
 
 dissenting. 7 Taunt. 361 17 Vea. (3) 2 Maule & Selw. 576. Wright, 
 
 454, S. C. V. Barlow, 3 Maule &, Selw. 512 S. P. 
 
 * In consequence of the decision in the cases of Wright v. Wakeford, and 
 Mansfield v. Peach (which might afiect the titles of purchasers, in case the 
 fact of signature were not expressed in the memorandum of attestation,) an 
 net of parliament was passed, (a) which enacts, " that every deed or other in- 
 strument, already made with the intention to exercise any power, authority, 
 trust, or to signily the consent or direction of any person, whose consent or 
 direction may be necessary to be so signified, shall, if duly signed and executed, 
 and in other respects duly attested, be (from the date thereof, and so as to es- 
 tablish derivative titles,) of the same validity and eflect, and proveable in the 
 like manner, as if a memorandum of attestation of signature, or of being under 
 hand, had been subscribed by the witness; and the attestation, expressing the 
 fact of sealing and delivering, without expressing the fact of signing or any 
 other form of attestation, shall not exclude the proof or the presumption of signa- 
 ture." This statute, it is to be observed, is only retrospective. 
 
 (({) St. 54 G. 3, c. 168.
 
 470 Of the Proof of Detds, Agreements, ^c. [Ch. 8. 
 
 Proof of any deed or writins^ under the hands and seals of ihe parties, to be 
 
 execution. -^ i • ■ r 
 
 by tlieni duly executed in the presence of, and attested by two 
 
 or more wilnesses,^^ and the attestation was only of the sealing am\ 
 delivery, the Court of King's Bench were of opjinion, that, in 
 order to make a due execution of the power in this case, the 
 instrument ought to have been made with all the forms re- 
 quired by the power, and that tliere ought also to have been an 
 attestation of its execution with all those forms; and with re- 
 spect to the second point, which arose here as well as in the 
 case of Wright v. Wakeford, the Court said, it was not neces- 
 sary to determine, at what precise time the attestation should be 
 made, but that the attestation, subsequent to the death of one 
 of the parties, could not give to their act an operation, which it 
 never had during the lives of the parties. 
 
 In another case, where lands were limited to such uses, as the 
 donee should direct by deed or writing, under his hand and seal 
 attested by two or more credible witnesses, the Court of Common 
 Pleas determined, that the power was not effectually executed by 
 a will, signed and sealed, but attested by the subscribing witnesses 
 as being signed in their presence, without noticing the sealing; 
 nor could the defect be cured, by calling on one of the witnesses 
 to prove, that the will was actually sealed in their presence, as well 
 as signed (1). 
 
 In the case of Moodie v. Reid,(2) the same court determin- 
 ed, that a power, to be executed by a writing signed and published 
 in the presence of attesting witnesses, is not properly executed by 
 an attestation, which notices the signing only, and not the pub- 
 lication. The question in that case arose on a marriage- 
 settlement, which contained a power to limit the uses of 
 money in the funds, by any writing or appointment in the 
 nature of a will, to be signed and published in the presence of, and 
 attested by two or more credible loitnesses; the testatrix at the 
 close of her will signed her name, and two names were sub- 
 scribed under the word "witness;" the subscribing witnesses 
 proved that the testatrix signed in their presence, and that they 
 understood, from what the testatrix said at the time of signing, 
 
 (1) Doe dem Hotchkisg v. Pearce, (2) 7 Taunt. 355. 
 6 Taunt. 402. 2 Marsh ill, 102, S. C.
 
 Sect. 1.] Of the Proof of Deeds ^ Agreements, ^c. 471 
 
 that the paper was hor last will. The Court of Common Pleas Proof of 
 
 _ execution. 
 
 held, on a case directed for their opinion by the Vice Chancellor, " 
 
 that the power had not been properly executed. Lord Ch. Justice 
 Gibbs said, " A will, as such, requires no publication; but here 
 the power is to be exercised by a will signed and published; there 
 must be some publication here; the will must be signed, published, 
 and attested; there must therefore be some attestation of signing 
 and publication. After adverting to the difficulty of defining the 
 term ^'- publication,^^ as applied to a will, the Lord Chief Justice 
 added, " I can only suppose it to be that, by which a person de- 
 signates, that he means to give effect to a paper as his will." 
 
 Where, however, the deed, by which the power was created, 
 directed, not that the instrument should be attested by witnesses, 
 but that the power should be executed by any writing to be 
 signed and sealed in the presence of two or more icitnesses, and the 
 deed, in pursuance of the power was expressed to be executed 
 in the presence of the witnesses, but the attestation applied 
 only to the sealing and delivery, the Chancellor was of opin- 
 ion, that in such a case it might be properly left to the jury 
 to presume, that the deed was signed, as it professed to be, 
 in the presence of the witnesses, who attested the sealing and 
 delivery. (1) 
 
 The rule which has been before mentioned, respecting the Several parties 
 
 sealing by several parties on one piece of wax, and with one seal, <"»esea. 
 
 is applicable to all deeds at common law; and such sealing will 
 
 bind the parties by whose authority the deed is executed. But 
 
 this rule does not extend to warrants or orders executed under 
 
 a power. In a case lately determined by the Court of King's 
 
 Bench, (2) where the question was, whether a certificate, signed 
 
 by two churchwardens and one overseer, but bearing only two 
 
 seals, was a lesal and valid certificate under the stat. 8 & 9 Certificate of 
 Axr <r, /i-i • -r- settlement. 
 
 W. 3. c. oO, (which requires certmcates to be under the hands 
 
 and seals of the church wardens and overseers, or the major part 
 
 of them, or under the hands and seals of the overseers, where 
 
 there are no church-wardens,) the Court determined, that the 
 
 certificate had not been properly executed. The facts of the 
 
 (I) M'Q,ueen v. Farquhar, 11 Ves. (2) R. v. Austrey, Easter Term, 
 467. 17 Ves. 458. 1817, Maule & Selw. MS.
 
 472 ■ Of the Proof of Deeds, Agreements, ^c. [Ch. a. 
 
 execulion. 
 
 Tronf of (.ggQ ;vere shortly these. The certificate was duly attested, and 
 
 allowed by magistrates, and purported to be the certificate of A. 
 B. and C. D. churchwardens, and of E. F. overseer; one' seal 
 was opposite to the two first names, and the other seal opposite 
 to the last; no trace of any other seal appeared on the instrument, 
 and the certificate was above thniy years old. Lord Ellen- 
 borough C. J., in delivering the judgment of the Court, said, 
 " In considering how far the cases of deeds are ap|)licable to 
 the present, it is to be recollected, that in those cases the par- 
 ires alone, under whose authority the deeds were executed, are 
 bound by them. But the present is the case of the execution 
 of a power, which binds and operates upon other persons at 
 their peril, and subjects them to indictments as for crimes, in 
 case of their disobedience to the j)ower, if it be duly executed. 
 In the execulion of powers, all the circumstances required by 
 the creators of the power, however unessential and otherwise 
 unimportant, must be observed, and can only be satisfied by a 
 strictly literal and precise performance. (1) It is also a general 
 principle of law, wherever a power is given to particular persons, to 
 do a written act in a particular manner or under certain particular 
 circumstances, whether it be to parish officers or magistrates, (as, 
 to grant certificates, under which, if duly executed, other per- 
 sons, especially public officers, are bound to act — or to grant 
 warrants, or make order,) that their authority must appear upon 
 the instrument itself. It must thereby appear, that they are 
 the persons authorized, and that the certificate, warrant, or 
 order, was made in the manner and under the circumstances re- 
 quired. Otherwise the certificate, warrant, or order, is not 
 obligatory, but void. (^) The statute is to be construed, in a case 
 like this, according to common parlance and understanding, 
 and so as to be a security to persons, who are bound to obey 
 the powers given by it at their peril; and it is not to be con- 
 strued according to what may be brought within its words by 
 nice legal reasoning, applicable merely to deeds. In the case 
 of Thaire v. Thaire, (2) where there was a submission to arbi- 
 tration, 'so that the award be delivered under their hands 
 and seals,' it was made a question, whether an award, sealed 
 but not signed, was a good award; the point reserved being, 
 
 (1) See^Hawkins v. Kemp, 3 East, 440. (2) Palmer, 109, 112. 
 iq) See Note 891, p. 1287.
 
 Sect. 1.] Of the Proof of Deeds, Agreement!^, ^-c. 473 
 
 whether the sealing, wliich was virtually a signing, was sufficient, ^^^^^ °^ 
 
 II I I r I I • • 1111. 1 . . exucution. 
 
 or whether the words ol the submission should be intended, in . 
 
 common parlance, an actual writing of their hands. The 
 Judges of the Court of Common Pleas, were at first divided in 
 opinion on that point. It was finally decided, however, by the 
 whole Court, that a virtual signing would not do, but that there 
 ought to be an actual signing under their hands. So in the pre- 
 sent case," said Lord Ellenborough, " where an act Is to be under 
 the hands and seals of the three, a mere virtual sealing by any of 
 the three appears to us not sufficient; but it ought to be under the 
 actual distinct seal of each, that is to say, under a distinct and 
 several sealed impression adopted by each of the parties." (r) 
 
 If a deed or other written instrument is attested, but none of Proof of* Imnd- 
 
 , . I I r I • • 1 writing of sub- 
 
 the Witnesses are capable of being examined, the course then scribing wit- 
 is to prove an attesting witness's hand-writing ; and this will be "*^^^' 
 a sufficient proof of the execution ; as, where the attesting wit- 
 ness is dead — or blind (1) (s) — or incompetent to give evidence, 
 either from insanity, (2) or from infamy of character, (3) or 
 from interest acquired after tJie execution of the deed, (4) (/) — or 
 where the subscribing witness is absent in a foreign country, (5) 
 or out of the jurisdiction of the superior English courts, so as 
 not to be amenable to their process, (6) — or where he cannot 
 be found after strict and diligent enquiry. (7)* (w) Illness is not 
 
 (1) Wood V. Drury, 1 Ld. Raym. (c,) Adam v. Kerr, 1 Bos. & Puil. 
 734, by Holt C. J. 361. 
 
 (2) Vin. Abr. tit. Evidence, (T. b. (6) Prince v. Blackburn, 2 East, 250. 
 48.) jl. 12. Burnett V. Taylor, 9 Ves. 1 Bos. & Pull. 361. Ward v. Wells. 
 381. Currie V. Child, 3 Campb. 283. 1 Taunt. 161. Hodnett v. Forman, 1 
 
 (3) Jones v. Mason, 2 Stra. 833. Starkie, N. P. C. 90. 
 
 Com. Dig. tit. Testmoigne, B- 3. (7) .Anon, case, 12 Mod. 607., by 
 
 (4) Goss V. Tracy, 1 P. Wms. 287. Holt C. J. 7 T. R. 266, Cunliffe v. 
 2S9. Godfrey v. Norris, 1 Stra. 34. Sefton, 2 East, 183. Crosby v. Percy, 
 
 Swire v. Bell, 5 T. R. 371. Buckley 1 Taunt. 365. Parker v- Hoskins, 2 
 
 V. Smith, 2 Esp.N. P. 697. See Honey- Taunt. 223. Wardel v. Fcrmor, 2 
 
 wood V. Peacock, infra., p. 476. Campb. 282. Burt v. Walker, 4 Barn. 
 
 (5) Coghlan v. Williamson, 1 Doug. & Aid. 697. 
 93. Wallisv. Delancey, 7 T. R. 266. 
 
 * In the case of Cunliffe v. Sefton (2 East, 183.,) it was proved, that dili- 
 gent enquiry had been made after one of the attesting witnesses to a bond at 
 the residence of the obligor and abligee, without being able to obtain any 
 intelligence of such a person; itiis was considered a sufficient ground for let- 
 ting in proof of the hand-writing of the other attesting witness, who had since 
 become interested as administratrix to the obligee, and was a plaintiff on the 
 
 (r) See Note S92, p. 1293. (s) See Note 893, p. 1293 (t) See Note 894, p. 
 1293. (u) See Note 895, p. 1293. 
 
 Vol. I. GO
 
 474 Of the Proof oj Deeds, Agreements, ^c. [Ch. 8. 
 
 Proof of a sufficient reason for dispensing with the attendance of a sub- 
 
 scribing witness: siicli a relaxation of the rule has not yet been 
 
 made, and it would obvitusly be liable to great abuse. (1) {v) 
 
 The proof of the subscribing witness's hand-writing, in the 
 cases above n)eniioned, is evidence of the execution of tho 
 instrument by the party therein named: the se;iliug and deli- 
 very will be presumed ; and, for the purpose of proving the 
 execution, il will not be necessary to prove also ihe hand-writing 
 of the party. (2)* {w) With a view, indeed, to establish the 
 
 (1) Harrison v. Blades, 3 Campb. Lord Ken) on held, that the proof of 
 45S., by Lord Ellenboiough- The re- the hand-wriling of one of the sub- 
 ceipts of a tax-gatherer were offered scribing vvilnesses, who was abroad, 
 in evidence, and as he was at the point was not sufficient, in an action opor> 
 of death, it was proposed to prove his a bond, and that the hand- writing of 
 hand-writing. See Jones v. Brewer, 4 the obligor should also be proved. 
 Taunt. -J7. Such additional proof might have been 
 
 (2) Prince v. Blackburn, 2 East, necessury in that case, to connect the 
 250. Adam v. Kerr, 1 Bos. & Pull, defendant with the bond. This is not 
 360. Milvvard v. Temple, 1 Campb. unlikely to have been the groand of 
 S75. Gough V. ("ecil, 1 Selw. N. P. Lord Kenyon's opinion. The note of 
 516., cited from IMS. In the case of the case is very short; and the ground 
 VVhIMs v. Delanoy, 7 T. R. 266. n. (f) is not stated. 
 
 record. In the case of Crosby v. Percy (1 Taunt. 365,") the Court of Common 
 Pleas held, that proof of the hand-writing of an attesting witness had bc«r> 
 properly admitted, after proof that diligent enquiry had been made for him at 
 his usual place of residence, where, in answer to the enquiry, information was 
 received, as also from the father of the attesting witness, that he had absconded 
 to avoid his creditors, and was not to be found. In the case of Wardel v. 
 Fermor (2 Campb. 282,) evidence of the band-writing was admitted, on proof 
 that, twelve months before, a commission of bankrupt had been sued out against 
 the subscribing witness, who had not appeared at the time fi.xed for his surrender. 
 Similar evidence was admitted in the case of Parker v. IJoskins (2 Taunt. 
 223,) an enquiry having been made for the subscribing witness at the Admiralty, 
 whence it appeared by the last re ort, that he was serving on board of some 
 ship, but in what ship it was not known. And in another case, where it ap- 
 peared, that one of two subscribing witnesses was dead, and the other hiid jfotie 
 abroad as a marine, about twenty years before the trial of the cause; and tho 
 witness, who spoke to this latter fact, said, he had not heard any thing 
 of him since; but that he had applied for information to the brother of the 
 marine, who informed liim, that he did not know wliere he was, whether in England 
 or abroad; the Court of King's Bench held, that proof of this sul)scribing wit- 
 ness's hand-writing ought to have been admitted; and Lord F.llenboroiigh said, 
 the proof of the fact of the subscribing witness's going abroad twenty years 
 ago (so large a portion of the life of man,) and never having been heard 
 of since, would of itself be sufficient. The case was thought to be so clear, 
 it was not argued on either side. Doe, dem. Johnson v. Johnson, Leicester Lent. 
 Ass. 1SI8, K. B. Trin. term, June 5. It is not possible, by any general rule, 
 to ascertain precisely in what cases this proof of lt>e subscribing witness's hand- 
 writing will be admitted. Each case must depend upon its own peculiar circum- 
 stances. But in all c.;ses it ought to be satisfactorily proved, that a »easonable, 
 honest and diligent enquiry has been made, without any evasion, and without any 
 design to overlook the witness. 
 
 ■* In the case of a deed executed in the East Indies, and attested by a wit- 
 ness resident there, the stat. 26KJ. 3, c. 57, S. 38, enacts, " that it shall bo suf- 
 
 iv) See ^oXfi 896, p. 1299. (w) See Note S97, p 1299.
 
 Sect. I.] OJ the P-roof of Deeds, Agreements, ^c. 476 
 
 identity of the party, ihot is, that tl)c person who executed the ^''^^^'.^^ 
 
 • , I • 1 1 , r r execution, 
 instrument, is the party to the suit, or the party charged, proof ot 
 
 the parly's hand-writing will he most important, and the most sa- I<^entityof 
 tisfactor}^ evidence that can be produced. In an action on a bond, 
 or on a promissory note or bill of exchange, some evidence of 
 identity appears to be necessary. (l)(x) Proof of the witness's 
 signature proves only this fact, that the instrument in question was 
 executed by a person in a certain name; it does not prove the 
 other important fact, that the defendant is tiiat person. Some evi- 
 dence seems necessary to connect the defendant with the bond or 
 note. Proof of his signature on tiie instrument would be decisive. 
 But such proof is not indispensably necessary; and much slighter 
 evidence would, in the first instance, be sufficient. Evidence that 
 (he defendant was present, when the note was prepared by the 
 subscribing witness, will serve to connect him with the instru- 
 txsent. (2) 
 
 Where there is no subscribing witness ots the deed; or Troof of the 
 where the subscribing witness denies having any knowledge of ture. 
 the execution, which is the same thing as if there were no wit- 
 ness at all; (3) (y) or where the name of a fictitious person is 
 inserted; (4) or where the person, who has put his name as 
 subscribing witness, did so without the knowledge or consent of 
 the parties; {5)(z) or if after diligent enquiry nothing can be heard 
 of the subscribing witness, so that he can neither be produced 
 himself, nor his hand-writing, proved; in these cases, the exe- 
 cution may he proved, by proving the hand-writing of the party 
 
 (1) Nelson v. WhiUai, 1 Barn. Sc Campb. 635., by Lawrence J. Lemon 
 Aid. 2L See also Memot v. Bates, v. Dean, ib. 636. n. by Le Blanc J. 
 Bull. N. P. 171. Middleton v. Sand- Talbot v. Hodson, 7 Taunt. 251.— 
 ford, 4 Campb. 24. Phipps v. Parker, 1 Campb. 412. is 
 
 (2) Nelson v. Whittal, 1 Barn. & therefore over-ruled. 
 
 Aid. 19. (4) Fasset v. Brown, PcaUe, N. P. 
 
 (3) Grellier v. Neale, Peake, N. P. C. 23., 
 
 C 145., ruled by Lord Kenyon. Ley (5) M'Craw v. Gentry, 3 Campb. 
 V. Ballard, 3 Esp. N. P. C. 173., by 232. 4 Taunt. 220. 
 Ld. Kenyon. Fitzgerald v. Elsee, 2 
 
 ficient to prove the hand-writing of the party to the deed, and of the attesting 
 witness, and that the witness is resident in the East Indies" When this statute 
 was passed, the present rule respecting the proof of the execution of a deed had 
 not been established. 
 
 (jr) See Note 898, p. 1302. (t/) See Note 899, p. 1303. ( = ) See Note 900, p. 1305.
 
 476 Of the Proof of Deeds, Agreements, ^c. [Ch. 0. 
 
 Proof of to the deed; or by any person present at the execution, ihougl) 
 
 execulioii. . ' . / . \ ■ c r i • • e 
 
 he IS not endorsed as witness; (I) or by prooi ol an admission ot 
 
 the parly himself, that he executeJ the deed, (a) 
 
 In ihe case of Swire v. Bell, (2) the Court of King's Bench 
 appears to have held, that when an attesting witness to a deed 
 was interested in the provisions and object of the deed at the 
 time of the execution, and continues so at the time of the trial, 
 proof of his signature would not be sufficient proof of the exe- 
 cution, [b) But when the defendant himself knew of the situation 
 in which the attesting witness stood at the time of the execution, 
 and yet, being party to the deed, desired him to attest, it is reason- 
 able, that he should not be allowed to object to such witness at the 
 trial, as incompetent on the ground of interest. (3) 
 
 The proof of the party's hand-writing, in the cases before men- 
 tioned, is a sufficient ground for presuming, that the deed was, 
 as it purports to be, sealed and delivered. (4) In the case of 
 Talbot v. Hodson, an action on a bond, (5) the subscribing 
 witness was first called to prove the execution, but on his de- 
 nying that he saw any thing of the execution, the co-obligor 
 was examined, having had a release to render him competent; 
 this witness stated, that there was a seal on the bond, when the 
 defendant wrote his name opposite, but that the defendant did 
 not seal it in the witnesse's presence, nor put his hand to the seal, 
 nor delivered the bond as his deed. The Lord Ch. Justice 
 Gibbs considered the circumstance of the defendants writing his 
 name opposite the seal on an instrument, in which it was affirmed 
 that he sealed, was evidence of a sealing and delivery; and the 
 
 (1) Com. Dig. tit. Evidence, (B. 3.) proof of his signature was not suffi- 
 
 (2) 5 T. R. 371. This was an action cient; but as it appeared that the 
 on a bond, given to indemnify a town- signature of the obligor had alio been 
 ship against the charge of a bastard proved, the rule for a new trial was 
 child. The only subscribing witness refused. 
 
 was at the time of the attestation, as (3) Honeywood v. Peacock, 8 
 
 well as at the time of the trial, a Campb. 196. 
 
 payer and contributor to the rates of (4) Grellier v. i^eale, Peakc, N. P. 
 
 the township. On being called to C. 145. Burrow.s v. Lock, 10 Ves. 
 
 prove the execution he was objected 474. 
 
 to, but admitted; and the plaintiff (5) 7 Taunt. 251. The jury found 
 had a verdict. On a motion for a a verdict for the plaintiff. Both wit- 
 new trial, ilie Court of K. B. were of nesses, who were called, were very 
 opinion, that the witness was interest- near relations of the defendant. 
 ed and incompeteut, and that the 
 
 (a) ?ee Note 901, p. 1303. {h) See Ts'ote »02, p 1310.
 
 Sect. 1.] Of the Proof oj Deeds, Agreements, ^c. 477 
 
 Court of Common Pleas were of opinion, that the evidence had been 
 properly left to the jury, and that they had drawn the true conclusion. 
 
 There are some exceptions to the general rule, as to the ne- F.xcepiiona. 
 cessity of proving the execution of deeds and other writings, which 
 mav be conveniently mentioned in this place. 
 
 First, if the deed is thirty years old, it may be admitted in l- De«d«, 30 
 evidence without any proof of its execution; such a deed is said 
 to prove itself. (1) (c) The same rule applies generally to 
 deeds concerning lands, to bonds, (2) receipts, (3) letters, (4) 
 and all other ancient writings; the execution, or writing, of 
 which need not be proved, provided they have been so acted 
 upon, or brought from such a place, as to afford " a reasona- 
 ble presumption that they were honestly and fairly obtained and 
 preserved for use, and are free from suspicion of dishonesty. (5)(f/) 
 
 If there is any blemish in the deed by rasure or interline- 
 ation, the deed ought to be proved, though above thirty years 
 old, (6) (e) and the blemish satisfactorily explained. (/) In such a 
 case, the jury would have to try, whether the rasure or inter- 
 lineation was before or after the delivery of the deed; for, if 
 the rasure was before that time, the deed is still valid and 
 binding; it is only after the delivery that a rasure or inter- 
 lineation can effect a deed, and even then they are in some cases 
 immaterial, {g) Now, to ascertain the time of delivery, the first 
 and best evidence to be resorted to is the testimony of a sub- 
 scribing witness, if any can be produced; or, if there is no 
 
 (1) 2 Term Rep. 471. Bull. N. P. among the title deeds kept at the fam- 
 255. ily-seat, was admitted as genuine, 
 
 (2) Governor of Chelsea Water- without proof of the hand-writing by 
 works V. Cowper, 1 Esp. N. P. C. 275. Dallas, C. J. in C. P. sitt. after Mich. 
 
 (3) D. & Ch. of Ely v. Stewart, 2 T. 1821, S. P. by Lord Tenterden, K. 
 Atk. 44. Fry v. Wood, 1 Selw. N. P. B. sitt. after Trinity Term, 1823, on se- 
 492. Manby v. Curtis, 1 Price, 232. cond trial. 
 
 Bertie v. Beaumont, 2 Price, 308. Bui- (5) Vin. A. B. tit. Evidence, (A. b. 
 
 len V. Mitchel, 2 Price, 399. 4 Dow. 5,) cited 7 East, 291. Bull. N. P. 
 
 297. Sir W. W. Wynne v. Tyrwhitt, 255. Forbes v. Wale, 1 Black. 532. 
 
 4 Barn. & Aid. 376. cited by Lord Kenyon, 1 Esp. N. P. C. 
 
 (4) In Beer v. Ward, on the trial of 278. 4 Barn. & Aid. 376. As to the 
 an issue as to the legitimacy of a par- custody of old documents, see infra, p. 
 ticular person, a very old letter, pur- 479. 
 
 porting to bear the signature of the (6) Gill. Ev. 89. Bull N. P. 255. 
 head of the family, and brought from 
 
 (c) See Note 903, p. 1315. {d) See Note 904, p. 1316. (e) See Note 906, 
 p. 1317. (/ ) See Note 906, p. 1317. (g) See Note 907, p. 1318.
 
 •^78 Of the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 subscribing witness, other persons may be called, ulio were 
 present when the deed was delivered; (/i) or, if no person was 
 present, the time of delivery will be reckoned from the date of 
 the deed. And the fact, of the rasure having been after the 
 delivery, may be proved either by a subscribing witness, or by 
 any other person, who saw the rasure made, (i) 
 
 Subscribing The rule, that deeds of thirty years' standin" prove themselve?, 
 
 witness alive. . . . . . 
 
 IS so well established, that even if a subscribing witness were alive, 
 
 and in a state to be produced, it has been thought unnecessary to 
 call Tiini for proving the execution. (J) Lord Kcnyon is reported 
 to have said, (1) that he remembered a case before Mr. Justice 
 Yates, in which, a deed of that age being produced in evidence, 
 it appeared, that the subscribing witness was then actually in court; 
 but the Judge declared, he would not break in upon a rule of evi- 
 dence so well established, by requiring the subscribing witness to 
 be called, and admitted the deed without further proof. In the 
 case of Rees v. Mansel, (2) indeed, Mr. Baron Perrot held, that, 
 although a deed may be read in evidence on account of its anti- 
 quity, yet, if on the other side it is shown, that one of the witness- 
 es is alive, he must be produced, or the deed must be rejected; and 
 he cited a case, where a deed was produced in the King's Bench, 
 and it appeared, that Sir Joseph Jekyll was the subscribing wit- 
 ness, upon which the Court said, they knew he was alive, and 
 that if he did not come to prove it, the plaintiff' must be nonsuited. 
 It was then mentioned to have been ruled by Mr. Justice Yates, 
 that for the sake of practice, the witness should not be allowed 
 to prove an old deed, even if he attended for that purpose; but 
 Mr. B. Perrot retained his opinion; " An old deed (he said) is 
 admitted only on a presumption that the witnesses are dead, 
 but when the contrary is made to appear, they must be called." 
 If the rule is founded on the mere presum[)tion of the attesting 
 witness's death, then it seems to follow, that, where this pre- 
 sumption is contradicted by the fact ,of his being still alive, the 
 execution of the deed ought to be regularly proved, as in 
 ordinary cases. But if courts of law have adopted the rule, not 
 on the single presumption of a fiu-t (which would be for the 
 
 (1) March v. Colnelt, 2 Esp. N. P. (2)1 Selw. N. P. 492. 
 
 C. 665. 
 
 {h) See Note 908, p. 1319- (0 Sec Note 909, p. 1319. (j) See Note 910. 
 p. 1319.
 
 Scc«. 1.] Of the Proof of Deeds, Agreements, ^o. 479 
 
 consideration of the jury rather than of the Court,) but as a 5;"^^°^^^^;*^ °'^ 
 
 general maxim of law, on account of the great difficulty of 
 
 proving execution after an interval of many years, and have 
 therefore fixed a limit, beyond which a proof of execution is 
 not to be required, there appears to be no inconsistency in acting 
 generally upon this principle, though in a particular case the 
 subscribing witness may be proved to be alive, at the same time 
 leaving it to the opposite side to dispute the regularity of the exe- 
 cution by calling him or any other witness, 
 
 The character and authenticity of old writings depend in a Custody of 
 
 •' "-^ '. old documents, 
 
 great degree on the nature of the place or custody in which 
 
 ihey have been kept. This is the case with terriers, ecclesias- 
 tical surveys, court-rolls, and other muniments of manors, — 
 which ouglit to be produced each from its proper depository; 
 and if they have been regularly preserved, it will not be neces- 
 sary, after a considerable lapse of time, to prove them genuine. 
 For the same reason, old grants to abbeys have been rejected as 
 evidence of private right, because the possession of them did not 
 appear to be connected with any persons, who had an interest 
 in the estate. (I) 
 
 In a laie case, a grant to an abbey, contained in a manuscript 
 entitled " Secrelum Abbatis''^ in the Bodleian library at Oxford, 
 was rejected, as not coming from the proper custody; (2) and 
 on the authority of this case, Mr. Justice Lawrence held, that an 
 old grant to a priory, brought from the Cottonian manuscripts 
 in the British nsuseum could not be received, as it was not shown, 
 that the |)ossession of the grant was connected with any person, 
 who had an interest in the estate. (3) 
 
 In the case of BuUen v. Michel, (4) one of the questions, on 
 the admissibility of the chartulary, related to the custody, from 
 which that old document was produced. It appeared, that the 
 chartulary was brought from the muniment room of the Marquis 
 of Bath, who, although not the owner of the particular farm, 
 nor of any property in the parish of S., was the owner of other 
 
 (1) Lygon V. Strutt, 2 Anstr. 601. (3) Swinnerton v. Marq. of Staf- 
 
 (2) Michell v. Rabbets, 3 Taunt, ford, 3 Taunt. 91. 
 91. (4) 2 Price, 413.
 
 480 Of the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 Custody of old estates formerly beloi)";iii2: to ilia abbey, and coiicernins: wbich 
 
 estates entries were to be found in tbc same document; and tbo 
 
 character of the band-writing in the chartulary was proved to 
 be of the reigns of the three first Kdwards. " The question is," 
 said the Lord Chief Baron Gibbs, in delivering the judgment of 
 the Court, " whether this book appeared, from the facts attend- 
 ing it, to have belonged to the abbey of Glastonbury. We 
 should recollect, that such a book, as this purports to be, usually 
 contains a description of all the estates of the abbey, and all the 
 transactions relating to them. When the abbey was dissolved, 
 those estates went to the Crown, and the Crown afterwards 
 granted them to different persons; the book, when the abbey 
 was dissolved, would go to the officers of the Crown, and when 
 the Crown portioned out and made over the possessions of the 
 abbey to other persons, the book could go only to one of those 
 grantees; and the only possible way of connecting it with the 
 abbey is, by showing a connection between the possessor and 
 the Crown, and by raising a probability, that the crown may 
 have handed over the book to the present possessor." Now, 
 such a connection was shown in the present case; for it ap- 
 peared, that the present owner of the book is also the owner of 
 certain lands, which formerly belonged to the abbey, and on the 
 dissolution of the abbey passed to the Crown, and from the 
 Crown to the present possessor; and the probability is, that the 
 book attended the lands in their passage from the Crown. On 
 this ground, therefore, the Court were of opinion, that the cus- 
 tody was so accounted for, as to render the book admissible in 
 evidence. 
 
 In the case of Potts v. Durant, (1) the Court of Exchequer 
 determined, that some ancient writings, which had been offered 
 in evidence, were inadmissible, because they had not been 
 brought from the proper repository. One was a writing pur- 
 porting to be an endowment of a vicarage; another was an an- 
 cient writing, purporting to be un inspeximus of the former, 
 under the seal of the Bishop of Norwich, and containing a copy 
 of the former, which is stated to have been at that time in the 
 registry of the diocese. These writings were produced at the 
 
 (1) 3 Anstr. 789.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, ^c, 481 
 
 trial, bv a i)erson who had purchased ihem at a sale, as part of a Custody of old 
 
 ,, . . . TT 1 • documents, 
 private colleclion ol luanuscripis. Mere the instruments came 
 
 out of the custody of a private person, peifectly unconnected 
 will) the matters contained in them ; and, for this reason, were 
 adjudged to be inadmissible. In the case of Lygon v. Strutt (1) 
 also, the Court of Exchequer held, that an ancient writing, pur- 
 porting to enumerate the possessions of a monastery, which had 
 been brought from the herald's office, was inadmissible. 
 
 The case of Earl v. Lewis (2) is another instance on this sub- 
 ject. There it was proved, on the trial of an issue respecting 
 the boundaries of two adjoining parishes, that the old papers, 
 offered in evidence on the part of the plaintiff (the rector of one 
 of the parishes,) had come into the possession of the son of the 
 former rector, upon his father's death, and that the son delivered 
 them over, as papers belonging to the parish, into the hands of 
 the witness, who produced them in court, in the same state in 
 which he had received them ; and this was held to be sufficient 
 evidence of the authenticity of the papers. So, in the case of 
 Jones v. Waller, (3) on a bill for tithes, a book purporting to ba 
 the book of a collector of tithes, something /nore than seventy 
 years old, being in the hands of the successor of that collector 
 was for that reason considered authentic. 
 
 In the case of INianby v. Curtis, (4) a paper, purporting to be 
 a receipt fifty years old, was produced as matter of evidence, 
 to show that a man of the name of Cartas had, fifty years before, 
 paid to a man of the name of Smith a certain sum in lieu of tithes, 
 and in support of the authenticity of this paper, it was proved 
 to have been delivered to the witness by the defendant; but it 
 did not appear where the defendant got the paper, nor did it 
 appear whether Smith was dead, or even who he was; the Court 
 of Exchequer therefore rejected the evidence, on the ground 
 that the paper had not been authenticated. And in the case of 
 Randolph v. Gordon, (5) where a book, purporting to be the 
 book of a former rector, was produced by the defendant's 
 
 (1) 2 Anstr. 601. proof of tho collector's hand-writing. 
 
 (2) 4 Esp. N. P. C. 1. before See 2 Jac. & Walk". 468. 
 
 Heath J. (4) I Price, 226; Mr. Baron Wood 
 
 (3) 3 Gwill. 847. The evidence is dissenting. 2 Jac. & Walk. 480. 
 said to have been received without (5) 6 Price, 312. 
 
 Vol. I. 61
 
 482 OJ the Proof of Deeds, Agrtements, ^c. [Ch. ft. 
 
 Custody of old attorney, who received it from the defendant, and the defendant 
 documents. , , , c y r i • i- i 
 was the grandson oi the former rector ; but it did not appear 
 
 whether he had found the book among his grandfather's papers, 
 
 or how it came into his possession, the Lord Ciiief Baron held, that 
 
 the book was not admissible. 
 
 In the case of Bertie v. Beaumont (1) the question was whether 
 a paper, wliich on the face of it contained ev^idence of money- 
 payments in lieu of the tithes enumerated in it, was admissible, 
 to show that a Dr. Eyre, who was clearly at the time rector, 
 and had been so for many years preceding, and had received 
 customary payments (there being also negative evidence that 
 no payments of tithes in kind had been ever made,) had given 
 such receipt, and thereby acknowledged such payments. This 
 paper was produced by the defendant's solicitor, who stated, 
 that he received it from the defendant for the purpose of pre 
 paring his defence. It w^as not given to the defendant, but to 
 another person of the same name, and who of course occupied 
 lands in the parish, for none but an occupier could have acquired 
 such a receipt. The Lord Chief Baron Thompson said, " That 
 person being of the same name with the present defendant, 
 there is a reasonable inference, that they were so connected as 
 to make this the proper custody ; and reasonable evidence of 
 proper custody is all that can be required, and is sufEcient." 
 It was objected, also, that the hand-writing of the paper had not 
 been proved;" " but," said the Chief Baron, " I do not think 
 that any such proof was necessary to establish a document of 
 this sort, at such a distance of time, any more than it would have 
 ' been necessary to prove a deed of the same date." 
 
 The rule, respecting the proof of the custody in which docu- 
 ments have been kept, applies more particularly to ancient docu- 
 ments, whose authenticity depends, in some degree, upon their 
 custody, and which must be shown to be connected with the 
 parly who produces them. In conjmon cases, where the written 
 instrument itself purports to belong to the party who produces it 
 in evidence, no proof can be requisite as to the place in which 
 it has been kept. On a question of settlement, where the re- 
 
 (1) 2 Price, 307.
 
 Sect.].] Of the Proof of Deeds, Agreements^ ^c. 483 
 
 spondents produced a certificate more than thirty years old, Castodyofoid 
 
 purporting to be granted to their parish by the appellant parish, 
 
 the mere production of it was held to be sufficient, and the re- 
 spondents were not obliged to show that the ceriificate had 
 been kept in the parish chest; (1) and it would be sufficient, if 
 the certificate were to be produced by a rated inhabitant of the 
 parish. {2){k) So in an action for a false return to a mandamus a 
 corporator may produce the muniments of the corporation. (3) 
 It has been before mentioned, that if a witness is called merely 
 to produce ait instrument, he need not be sworn for that pur- 
 pose. (4) 
 
 A deed may be dven in evidence, under a rule of court, 2- Deed pro- 
 
 ■^ ... duced Dy rul* 
 
 without proof of execution; for the consent is conclusive, and of court, 
 the jury are to try only such facts as are in issue between the 
 parlies. (5) 
 
 When a deed, or written agreement, comes out of the pos- "• Deed pro- 
 i. . . , ... educed by tha 
 
 session ol the opposite party, who produces it m pursuance oi other party. 
 
 a notice, and who derives a beneficial interest under it, the exe- 
 cution need not be proved; (6) nor will proof of the execution 
 of a deed be necessery, where the opposite party who produces 
 the deed is a public officer, who, in the discharge of his of- 
 ficial duties, was obliged to prepare such deed, and have it duly 
 executed. (7)(Z) 
 
 Fifthly, of the proof of hand- writing in general. 
 
 The simplest and most obvious proof of hand-writing is the Proof of 
 testimony of a witness, who saw the paper or signature actually """^-"'"I'ng- 
 written. But a great variety of cases must continually occur, 
 where such a direct kind of evidence cannot possibly be pro- 
 cured. The writing may be secret, as must constantly happen 
 
 (1) R. V Ryton, 5 T. R. 259. (5) 1 Siderf. 269. Gilb Ev. 91. 
 
 (2) R. V. Netherthong, 2 Maule &. Bull. N. P. 256. 
 
 Selvv. 337. This was Ijufore the late (6) See Pearco v. Hooper, and Orr 
 
 act of parliament, which made rated v. Morice, ante, p. 449, 450. ^ 
 
 inhabitants competent witnesses on (7) Scott v. Waithman, 3 Stark. N. 
 
 the trial of an appeal. P. C 168. Barnes v. Lucas, Ry. & 
 
 (3) 2 Maule & Selw. 333. Mo. N. P. C. 264. S. P. 
 
 (4) Seo ante, p. 274. 
 
 {k) See Note 911, p. 1319. (I) See Note 912, p. 1320.
 
 484 Of the Proof of Deeds, Agreements, ^c. [Ch. 8. 
 
 Proof of in cases of a fraudulent or criiiiinal nature; or, if any person 
 
 hand-writing. t i • V ^ • 
 
 — was present, he may be dead or unknown. Jn this deficiency 
 
 of positive proof, the best evidence, which the nature of the 
 
 case admits, is the information of witnesses acquainted with the 
 
 supposed writer, who, from seeing him write, have acquired a 
 
 1. Proof by knowledge of his hand-writing: for in every person's manner of 
 
 witncssGS* who 
 
 have seen the Writing there is a certain distinct prevailing character, which may 
 
 party write. ^^ easily discovered by observation, and, when once known, may 
 be afterwards applied as a standard to try any other specimens 
 of writing, whose genuineness is disputed. A witness may there- 
 fore be asked, w^iether he has seen a particular person write, 
 and afterwards, whether he believes the paper in dispute to be his 
 hand-writing. This course of examination evidently involves 
 two questions; first, whether the supposed writer is the person of 
 whom the witness speaks; and, secondly, if he is the person, whe- 
 ther he wrote the paper in dispute. The first is a question of 
 identity; the second a question of judgment, or a comparison, 
 ' in the mind of the v.'itness, between the general standard and the 
 writing produced. 
 
 This kind of evidence, like all probable evidence, admits of 
 every possible degree from the lowest presumption to the highest 
 moral certainty. It may be so weak, as to be utterly unsafe to 
 act upon; or so strong, as in the mind of any reasonable man 
 to produce conviction. The witness may have been in the con- 
 stant habit of seeing the person write, day after day, for years 
 together, on common transactions, and in the course of impor- 
 tant business; and what better means can he have of gaining 
 the most accurate knowledge of his manner of writing."^ On the 
 other hand, it may be found, perhaps on enquiry, that he has 
 seen him write only a few words, many years ago, or only once; 
 or the specimens, which he saw, were perhaps, slight and im- 
 perfect, made in a hurry, at distant intervals, or, from some 
 other cause, were not the fair average specimens of his general 
 style of writing, but deviations from the common form; in 
 which cases, the impression on the mind of the witness would' 
 * be faint and inaccurate. But whatever degree of weight his 
 
 testimony may deserve, which is a question exclusively for the
 
 Sect. 1.] Of the Proof of Deeds. ^ Agreements, ^-c. 485 
 
 jury it is an established rule, that, if he has seen ilia person write, J'^o/of. . 
 
 ** •' ' ' _ ' h:ind-wriliiig. 
 
 he will be conipeteiit to speak to his hand-vvriiin^.(l)(?rt) 
 
 On the trial of Algernon Sydney, as appears from the primed Sydnej'scaBe. 
 report of that case, (2) three witnesses were called to prove a paper 
 to be his hand-writing: the first said, he had seen the prisoner 
 write the endorsement upon several bills of exchange, and that he 
 believed the paper to have been written by him; this evidence was 
 objected to as a comparison of hand-writing, but admitted: the 
 second witness said, he had not seen the prisoner write more tlian 
 once, but that ho had seen his endorsement upon bills, and that the 
 paper was very like it: the third witness said, he had seen several 
 notes, which had come to him with the endorsement of the pris- 
 oner's name, and that he had paid them, and had never been 
 called to account for mis-payment: the whole of this evidence 
 was received. The prisoner, in his defence, still insisted, that 
 nothing but the comparison of hand- writing had been offered, as 
 proof against him; and the act of parliament, which reversed his 
 attainder, states the admission of this evidence as one of the 
 grounds of the illegality of his conviction. That act recites, 
 among other particulars, that " there had not been sufficient legal 
 evidence of any treasons committed by him, there being produced 
 a paper found in his closet, supposed to be his hand-writing, 
 which was not proved by any one witness to have been written 
 by him; but the jury was directed to believe it by comparing it xoith 
 other writings of his. (3) However if the printed report of the trial 
 is correct, something more than the mere comparison of hand- 
 writing was laid before the jury; for, according to that report, 
 the first witness had seen the prisoner write his name several 
 times. And though it may be objected to the testimony of the 
 two last witnesses, that the endorsements, mentioned by them 
 were not sufficiently proved to have been written by the prisoner, 
 
 (1) Lord Preston's case, 4 St. Tr. 1 Esp. N. P. C. 14. Garrels v. Alex- 
 
 446, 447. Francia's case, 6 St. Tr. ander, 4 Esp. 37. 
 
 70. Layer's case, 6 St. Tr. 275. R. (2) 3 St. Tr. 302. 8 Howell St. 
 
 V. Dr. Hensey, 1 Burr. 644. De la Tr. 467, S. C. 
 
 Motte'a case, 21 Howell St. Tr. 810. (3) Cited in Layer's case, 6 St. 
 
 Eaglelon and Coventry v. Kingston, Tr. 279. 
 8 Vea. 43S, 474. Stranger v. Searle, 
 
 (ni) See Note 913, p. 1321
 
 486 Of the Proof oj Deeds, Agreements^ ^c. [Ch. 8. 
 
 Proof of ihat objeciion will not apply to the other witness, whose evidence 
 
 band-writing. , , i • -i i rm i • j r • i j 
 
 1_ was certainly admissible. 1 he same kind ol evidence was ad- 
 
 niiticd in Lord Preston's case within a year after the reversal of 
 Sydney's attainder, and has bctn sii c ; received in many cases of 
 great authoriiy. (1) 
 
 2. Proof by Another method of acquiring a knowledge of hand-writing 
 
 the party's cor- . , - . , ir •. i 
 
 respondents, 's by means of a written correspondence. II a witness has 
 
 received letters on subjects of business, which can be proved to 
 have been written by a particular person, or letters of such a 
 nature as makes it probable that they were written by the hand 
 from which they profess to come, he may be admitted to speak 
 to that person's hand-writing. The same questions occur here, 
 as have been before mentioned in the case where a witness 
 speaks from having seen the person write; and in addition to 
 these, one other question arises concerning the identity of the 
 person who wrote the letters; and the admissibility of the evidence 
 must depend upon this, whether there is good reason to believe 
 that the specimens from which the witness has derived his 
 knowledge were written by the supposed writer of the paper 
 in question, (n) If this point is c'early proved, the witness who 
 has received the letters will freqiiently be able to give more 
 satisfactory evidence, than one who has seen the person in the 
 act of writing: for the latter may have seen him write but 
 seldom, or on occasions which were not likely to excite attention; 
 while the other may have had frequent opportunities of re-perusing 
 the letters, and the letters themselves, having been written on 
 subjects of business, will probably have more consistency, and ex- 
 hibit a fairer specimen of the general character of hand-'.vriting. 
 
 The first reported case, in which the admissibility of this kind 
 of evidence appears to have been decided, is the case of Lord 
 Ferrers v. Shirley, which is thus stated in Fitzgibbon's Re- 
 ports: (2) — *' Upon a feigned issue out of Chancery, directed to 
 be tried at bar, whether a deed, pretended to have been exe- 
 
 (1) See ante, p. 485, n. 1. And see (2) P. 195. 
 the case of De La Motte, 21 Howell 
 St. Tr. p. 810. 
 
 (n) See Note 914, p. 1324.
 
 Sect. 1.] Of the Proof of Deeds, Agreements, i-e* 487 
 
 cuted by the Earl Ferrers in ihe year 16S3, was his deed or not, Proof of hand- 
 several witnesses were called to swear to the hand-writing of the ____!!! 
 
 subscribing witnesses then dead, and amongst others one J. J., 
 who would have sworn to the name of J. Crtiington, whose 
 name was on the deed as a witness, because he had seen several 
 letters written by Cottington: thereupon he was asked, whether 
 he had ever seen Cottington write? to which he answered, that 
 he never had, nor ever saw the person that wrote the said 
 letters, but that his master (to vvliom the letters were written for 
 the rent of a part of the estate of the late Earl Ferrers, which 
 his said master held,) informed him, they w^ere the letters of 
 Cottington, the Lord Ferrer's steward, who was the person 
 pretended to have attested the deed in question. It was here- 
 upon objected to his testimor)y, because he could not say with 
 any certainty whether or not the writer of the letters was the 
 same persons that attested the deed; for Cottington, who was 
 supposed to write the letters, might have got some other person 
 to write those very letters for him; rnd the counsel insisted, that 
 in all cases where a witness would swear to hand-wi'iting, he 
 must be able to say, that he saw such a person write. The 
 Court rejected the witness, because he could not ascertain the 
 identity of the person. But Lord Raymond said, " It was not 
 necessary in all case3 that a witness should have seen the 
 person write, to uhose hand he swears; for where there has 
 been a fixed correspondence by letters, and it can be made out, 
 that tliC party writing such letters is the same man that attested 
 a deed, that will entitle a witness to swear to that person's 
 hand, though he never saw him write." Page J. said, " If a 
 subscribing witness to a deed lives in the West Indies, whose 
 hand-writing is to be proved in England, a witness here may 
 swear to his hand, by having seen the letters of such person, 
 written by him to his correspondent in England, because, under 
 the special circumstances of that case, there is no other way, or 
 at least the difficulty will be great, to prove the hand-writing of 
 such subscribing witness." But Lord Raymond differed, and 
 said, " that these special circumstances could not vary the 
 reason of the thing." It was further objected to the same 
 witness, that he should produce the letters, that the Court and 
 the jury might be able to judge of the resemblance between the 
 hand-writing of the letters and that on the deed; but this was
 
 488 Of the Proof of Deeds, Agreements, ^e. [Ch. R. 
 
 rroofoflnnd- over-ruled by the Court, " because the witness niig.ht well have 
 Z acquired a knowledge of the character of Cottington's hand- 
 writing, by having seen several letters written by him." The rule 
 to be deduced fiom this case is, that a witness may be admitted to 
 speak to a person's hand-writing, if he has seen letters, wliich 
 can be proved to have been written by him; but that this an- 
 tecedent proof of tlie identity of the person is indispensably 
 necessary; and further, that hearsay evidence of identity is 
 totally inadmissible. The case, reported to have been put by 
 Page J., is not very clearly stated. If it is understood to mean, 
 that, where a subscribing witness resides abroad, slighter proof 
 of his signature may be given than is necessary in other cases, 
 it certainly cannot be supported; but if the meaning is, that his 
 signature may be proved in the same manner as if he were dead, 
 by a witness who has seen letters proved to be of his writing, 
 the case is warranted by many later authorities, which have 
 been already mentioned. And with regard to the last objection, 
 namely, that the witness ought to produce the letters, that the 
 jury might judge of the resemblance, it appears to have been 
 made as a preliminary objection to the admissibility of his 
 evidence, and was therefore properly over-ruled. But after 
 the witness has been regularly admitted to give his evidence, 
 it seems reasonable that the opposite party should be allowed 
 not only to cross-examine as to the number and appearance 
 of the writings, which the witness professes to- have seen, but 
 also to call upon him to produce the writings in court, that the 
 jury may judge of the means which the v.itnsss had of forming his 
 opinion. 
 
 Another authority, in support of the rule laid down in Lord 
 Ferrars v. Shirley, is Layers's case, (1) on a trial for high treason, 
 where the witness (who had received letters from the prisoner 
 on business five years before, which he answered, and transacted 
 the business according to the directions in the letters, and had 
 been paid for it,) was allowed to speak to the hand-writing of a 
 treasonable paper charged upon the prisoner; and, though the 
 witness in this case had seen the prisoner write some years 
 
 (1) 6 St. Tr. 275. Seo also Gold 172. R. v. Mr. Justice Johnson, 29 
 V. Jones, 1 Black. Rep. 384, S. P. Howell, St. Tr. 441. Harrington v. 
 Wade V. Broughton, 3 Ves. & Beam. Fry, Ry. & Mo. N. P. C. 90.
 
 Sect. I.] Of the Proof of Deeds, Agreements^ ^c. 489 
 
 before the receipt of the letters, yet, independent of that circum- Proof of 
 
 1 • -1 • J J I 1 • M 1 T/- 1 1 1 hand-wnling. 
 
 Stance, his evidence was judged to be admissible. II ho had 
 
 formed his judgment of the prisoner's hand-writing from these 
 letters alone, *' if the case had gone no further," said the Chief 
 Justice, "nobody could have doubted but that, according to the 
 usual course and rules of evidence, the paper ought to be read." 
 With respect to the interval of time that has elapsed since the 
 witness saw the prisoner write, or received letters from him, this is 
 a circumstance not to exclude him from giving evidence, but to be 
 left, with all the other circumstances of the case, to the considera- 
 tion of the jury. 
 
 This rule of evidence appears not to have been settled at the Seven bishops' 
 time of the memorable trial of the seven bishops, who were 
 tried for a libel in the fourth year of James II. In the course 
 of that trial, a witness, called to prove the signature of one of 
 the bishops, said he had received letters from him on business, 
 and that he had done what the letters required, and that he be- 
 lieved the signature in question to be the bishop's hand-writing, 
 but could not swear that those letters were written by him. (1) 
 This was the strongest evidence in the case, excepting the proof 
 of the archbishop's signature, which was proved by one who 
 had seen him write. But Mr. Justice Powell thought it an ob- 
 jection to the evidence before mentioned, that the witness had 
 never seen the bishop write, and that the receipt of the letters 
 was not sufficient, unless he could also swear who had written 
 ihem. A long and desultory argument ensued on the admissi- 
 bility of the paper in question, the counsel for the prosecution 
 insisting that the signatures of the bishops had been proved, 
 and the counsel on the other side that the proof was insufficient. 
 Mr. Justice Powell said, (2) " he thought the paper had not 
 been sufficiently proved to be subscribed by the bishops. It is 
 too slender a proof for such a case. I grant you," he added, 
 " in civil actions a slender proof is sufficient to make out a 
 man's hand, as by a letter to a tradesman or a correspondent, 
 or the like; but in criminal causes, such as this, if such a proof 
 is allowed, where is the safety of your life, or any man's life 
 here.'"' The judges were equally divided in opinion, and the 
 
 (1) 4St. Tr. 338. (2) P. 245. 
 
 Vol. I. 62
 
 490 Of the Proof of Deeds, Agreements, ^c. [Ch, 8. 
 
 Proof of paper was not allowed to be read. Thus it appears, that at that 
 
 hand-writing. • i , /• • t i • i i i • i 
 
 time \he rule ol evidence which lias been mentioned was not ad- 
 mitted in criminal cases, though even then it was acknowledged 
 to be reasonable in cases of a civil nature. But this distinction is 
 no longer made. If the rule is true in the one case, it must be 
 equally true in the other ; for the rules of evidence, which are 
 the laws of truth, must be uniform and universal. 
 
 Comparison of In the cases which have been mentioned, the proof of hand- 
 ■ writing is founded on a knowledge of the general character. 
 The witness is supposed to have formed a standard in his mind, 
 and with that standard to compare the writing in question. But no 
 other kind of comparison will be allowed, (o) It is an established 
 rule of evidence, that hand-writing cannot be proved by com- 
 paring the paper in dispute with any other papers acknowledged 
 to be genuine. The reason usually assigned is, that unless a 
 jury can read, they would be unable to institute a comparison, 
 or judge of the supposed resemblance; (1) a reason, however, 
 which appears to be too narrow for a rule of such general 
 application. Another reason for rejecting such a comparison 
 seems to be, that the writings, intended as specimens, to be 
 compared with the disputed paper, would be brought together 
 by a party to the suit, who is interested to select such writings 
 only as may best serve his purpose, and they are not likely 
 therefore to exhibit a fair specimen of the general character of 
 hand-writing. It has been thougbt by some an inconsistency in 
 the rules of evidence, to allow a witness to compare in his mind 
 the disputed paper with the impression which a short and 
 transient view of writings may have made upon his memory ; 
 yet on the other hand, not to permit the jury to compare it with 
 writings, proved to be authentic, present in court, and open for 
 inspection. The only answer which occurs to this objection is 
 that before suggested, namely, that the writings, which are pro- 
 duced as specimens, having been selected by an interested party 
 to serve a present purpose, are open to suspicion, and liable to the 
 imputation of contrivance. 
 
 (I) Macferson v. Thoytes, Peake, N. P. C. 20. Brookbard v. VVoodley, ib. 
 n. (6.) 
 
 (o) See Note 915, p. 1326.
 
 Sect. 1.] Of thti Proof of Deeds, Agreements, ^c. 491 
 
 A witness who has seen a person write, and yet retains no P™"'" ^^ 
 
 ... . . r 1 1 I • • I 11 1 • nand-wnting. 
 
 distinct impression oi the hand-wriiing, may be allowed to revive 
 
 his memory by looking at the paper which he saw written, and fo assist wt'" 
 which he has kept in his possession, and may then declare his ne^^' 
 opinion as to the genuineness of the paper in question. (l)(p) 
 If a witness, after seeing a person write only once, is allowed to 
 give his opinion on the similarity of hand-writing, from the im- 
 pression which that solitaiy specimen of writing has left upon 
 his mind, though he may not have seen the specimen since it 
 was first written; a fortiori is the witness competent, if he has 
 kept the impression fresh and strong by a frequent inspection of 
 the writing, if he has had an opportunity of restoring the first 
 impression even by a single perusal. A perusal of this writing, 
 even at the moment when the witness is called upon lo give his 
 opinion on some other paper, may serve to strengthen the memory, 
 and for that purpose seenis to be strictly regular. There would 
 be great danger in allowing papers, wliich the witness has not 
 seen written, to be put into his hand, under pretence of leviving 
 his recollection: the danger, is, that such a contrivance would 
 not restore the impression formerly produced, but rather serve lo 
 create a new and different impression; to permit an inspection 
 of such papers, with a view to assist the witness in judging of 
 some other disputed paper, would in effect be admittin:^ a compar- 
 ison of hand-writing: but in the case proposed, where the witness 
 looks at the identical paper which he saw written, and from which 
 his mind received the only impression it ever had of the writer's 
 style, there is no danger of contrivance or collusion; and the 
 mind must surely be better able to form an opinion, when the 
 memory has thus been strengthened and refreshed, than when it 
 trusts only to the first fleeting impression, which, from want of 
 retouching, would become gradually fainter and more indistinct. 
 
 When the antiquity of a writing, purporting to bear a per- Comparison in 
 
 , . , ... -lie • . case of ancient 
 
 son s Signature, makes it im[)ossibIe lor a witness to swear that writings. 
 he has ever seen the party write, it has been held suflicient, 
 that the witness should have become acquainted with his man- 
 ner of signing his name, by inspecting other ancient writings 
 
 (1) Burr V. Harper, Holt, N. P. C. ell's St. Tr. 196, in the examination 
 420. And see Layer's case, 16 Hew- of the witness Doyley. 
 
 (p) See Note 916, p. 1331
 
 492 OJ the Proof oj Deeds, Agreementa, ^c. [Ch. 8. 
 
 Proof of which bear ihe same signature, nrovifled those ancient writings 
 
 hand -writing. , , , , • i • j 
 
 have been treated and regularly preserved as authentic documents. 
 
 A witness, therefore, may be regularly asked, whether he has 
 inspected such ancient writings, in order to acquire a knowledge of 
 the character of the hand-writing; and then, whether he believes 
 the writing in question to be of the same character. (I)(9) It 
 would be regular, also, to lay such ancient writings before a wit- 
 ness at the time of the trial, in the first instance, for the purpose of 
 his inspection; and, after a careful inspection by the witness, to 
 enquire as to his judgment and belief. (2) In a case tried before 
 Mr. Justice Le Blanc, (3) a signature in an entry, purporting to 
 have been made by a person long since deceased, was allowed to 
 be compared with another signature of the same person in a deed 
 of settlement; and this evidence by comparison was admitted, on 
 the ground, that at such a distance of time no better evidence of 
 the fact could be obtained. In another case, a presentment of a 
 jury in a court baron being offered in evidence, the signature of the 
 foreman on the presentment was proved by means of comparing it 
 with the signature on his will. (4) If evidence by comparison is 
 properly admitted in such cases, to prove the genuineness of a sig- 
 nature, the same kiud of evidence must also be admissible, to prove 
 that the signature is not genuine. 
 
 Evidence 39 to When the genuineness of a signature is questioned, the most 
 
 fiand-wrSng°^ ^^^^s^^^^°''y ('f "O^ technically speaking, the best) evidence, to 
 
 disprove the writing and prove it forged, is the testimony of the 
 
 (1) Bull. N. P. [236,] citing a case v. Ward, (supra, n. 1,) to have been 
 determined by Lord Hardwicl<e in so ruled by Lawrence J. in a case on 
 Chanc. Dec. 1746. 7 East, 282, n. the Oxford circuit. See also Ry. & 
 (a.) 14 East, 328. This kind of cvi- Mo. N. P. C. 143, S. P. 
 
 dence has been received in many other (3) Brune v. Rawlins, 7 East, 282: 
 
 cases. Several instances occurred in the supposed writer had been dead 
 
 the case of Beer v. Ward, on the trial about 60 years. The same evidence 
 
 of an issue out of Chancery, in C. P. had been received, on a former trial 
 
 Eitt. after Mich. T. 1S21, before Dal- of the same cause. 
 
 las, C. J., and on a second trial, before (4) Morewood v. Wood, 14 East, 
 
 Lord Tenterden, in K. B. sitt. after 328 In this, and the former instance, 
 
 Tr. T. 1823. Holroyd J. also admitted it is not precisely stated, in the report, 
 
 such evidence in the case of Doe deni. whether the comparison was made by 
 
 Maddock v. Lyne, Leic. Sum. Ass a v^itness or by the jury; but, upon 
 
 1822; see also Taylor v. Cooke, 8 the whole, it seems the most satisfac- 
 
 Pricc, 652; and several other cases of tory mode of proof, that a witness 
 
 a similar description might be cited. should inspect the writings, and after- 
 
 (2) Said by Lord Tenterden in Beer wards give the result of his judgment. 
 
 iq) See Note 917, p. 1331.
 
 Sect. 1.] Of ike Proof of Deeds, Agreemenis, ^c. 41)3 
 
 supposed writer himself provided lie is not an iiiconipeient wit- Proof of 
 
 .... ...^ . ~ hand-writing. 
 
 ness. (1) Next to his evidence, is the iniormation oi persons 
 
 who have seen him write, or been in the habit of correspondence 
 with him. Inspectors of franks, clerks of the post-office, and 
 other persons of skill practised in examining hand-writing and 
 in detecting forgeries, have been, in some cases, allowed to give 
 their opinion, from their general knowledge of hand-writing, 
 whether a particular specimen of writing is in a genuine or imitat- 
 ed character. (2) But the admissibility of such evidence was late- 
 ly considered in the case of Gurney v. Langlands. (3) An issue 
 was in that case directed by the Court of King's Bench, to try 
 whether a signature on a warrant of attorney had been forged. On 
 the trial of the issue, an inspector of franks at the post-office, who 
 was entirely unacquainted with the hand-writing of the supposed 
 writer, was asked, whether, from his general knowledge of hand- 
 writing, he believed the signature to be genuine or imitated. 
 The question was objected to, and the objection allowed by the 
 Judge, Mr. Baron Wood. A motion was in consequence made 
 for a new trial, on the ground of the rejection of this evidence. 
 Some of the Judges of the Court of King's Bench, on that occa- 
 sion, expressed doubts as to the admissibility of such evidence in 
 general; all of them considered it, if admissible, not entitled to 
 any weight. The reasons, given by Mr. Baron Wood, for reject- 
 ing the evidence, are stated in his report of the case to the Court 
 of King's Bench, and appear lo be decisive on this question. 
 *' When a witness (he says) has seen another person write, or 
 by receiving letters from him has become acquainted with his 
 hand-writing, he has the means of forming an opinion as to its 
 'general character. But where, as in this case, the vvitnes.s ac- 
 knowledges, that he had not any previous acquaintance what- 
 ever with the hand-writing of the person, he could not have any 
 foundation for his opinion or belief, whether the signature in 
 question was genuine, or only an imitation; for he had never 
 seen or known that, on which it was supposed to be an imi- 
 tation. There is not any universal fixed standard, by which 
 hand-writing can be ascertained to be counterfeit, upon mere 
 
 (1) Vide supra, p. 225. Macknill, Sayer, 132. Stringer v. 
 
 (2") Goodtitle dem. Revett v. Bra- Searle, 1 Esp. N. P. C. 14. 
 bam, 4 T. R. 497. R. v. Cator, 4 Esp. (3) 5 Barn. & Aid. 330. 
 N. P. C. 117, 145. See also Kemp v.
 
 494 
 
 Of the Proof of IVills. 
 
 [Ch. 8. 
 
 inspection, without some previous kiiowledge of tlio genuine 
 character." (r) 
 
 Sect. TI. 
 
 Witness to 
 will. 
 
 Of the Proof of Wills. 
 
 The statute of frauds enacts, (1) that all devises of lands or 
 tenements, devisable by that statute, or by the statute of wills, (.2)* 
 or by force of any particular custom, shall bo in writing, and 
 signed by the parly so devising the same, or by some other per- 
 son in his presence and by his express direction, and attested 
 and subscribed {s) in the presence of the said devisor by three or 
 four credible witnesses, or else they shall be utterly void and of no 
 effect. (0 
 
 The credibility or competency of the witnesses (for the term 
 *' credible" is here to be construed as synonymous with " com- 
 petent") (w) must be considered with reference to the lime of at- 
 testation; so that, if one of three attesting witnesses would have 
 been incompetent to give evidence at the time of his subscrib- 
 ing, as from want of reason, or from conviction of some in- 
 famous offence, (3) the will is not duly executed within the sta- 
 tute of frauds, {v) Upon this principle it was determined, soon 
 after the passing of the statute, that a devisje could not 
 
 (1) St. 29 C. 2. c. 3. 8. 5. (3) Pendock v. Mackinder, Willes's 
 
 (2) St. 32 II. 8. c. 1. explained by Rnp. 665. 
 Bt. 34 H. 8. C.5. 
 
 Copyhold. * The statutes of the 32d and ollh of Henry VIII. gave the power of de- 
 
 vising to such persons only as held by socage, and had an estate of Inheritance 
 in fee simple. But copyholds, not being held by socuge-tenure, could not be 
 devised under these statutes, nor were they made devisable by any clause in 
 the statute of frauds; they were considered to be in their nature not properly 
 the subject ofa devise, as not passing by a will merely as a will, but by will 
 and surrender taken together. The practice used to be, to surrender to the 
 use of the owner's last will, and on this surrender the will would operate as a 
 declaration of the use, and not as a devise of the land itself A devise there- 
 fore of copyhold lands, or of customary lands which pass by surrender and 
 admittance, would not require any attestation; nor would it require a signa- 
 ture, unless a signature were made necessary by the terms of the surrender to 
 the use of the will. WagstafT v. Wagstaff, 2 P. VVras. 258. Tuffnell v. Page, 
 2 Atk. 37. Carey v. Askew, 2 Bro. Ch. Rep. 58. Doe dem Cook v. Danvers, 7 
 East, 299. 322. But it has been enacted by a late act of parliament, st. 55 G. 3. 
 
 55 G. 3. c. 192, that a disposition of copyhold estates by will shall bo effectual, without a 
 
 previous surrender to the uses of the will. 
 
 (r) See Note 918, p. 1332. (j) See Note 919, p. 1339. (0 See Note 920, p. 
 1340. (u) Sea Note 921, p. 1341. (v) See Note 922, p. 1342.
 
 St!ct. 2.] Of the Proof of Wills. 496 
 
 altesl a will under which he took an interest. (I) (w) But an exec- 
 utor, who took nothing under the will, and had no interest in the 
 residue, was always considered a competent attesting witness. (2) (x) 
 
 Considerable doubts were afterwards entertained whether the 
 competency of such an interested person might not be restored 
 by a release, payment, or extinguishment of all his interest, so 
 as to admit him to prove the execution. (3) {y) In consequence S'- 23 G. 2 
 of this difference of opinion, the legislature passed an act, which 
 (after reciting, that it had been doubted who were to be 
 deemed legal witnesses within the statute of frauds) enacts, (4) 
 that " if any person shall attest the execution of any will or 
 codicil (to whom any beneficial devise, legacy, estate, interest, 
 gift, or appointment aflecting any real or personal estate, except 
 charges on land, &c. for payment of debts shall be given,) such 
 devise, legacy, &c. shall so far only as concerns such person 
 attesting the execution, or any person claiuiing under him, be 
 utterly null and void; and such person shall be admitted as a 
 witness to the execution of such will or codicil, within the intent 
 of the said act, notwithstanding such devise, legacy, &c. And 
 in case any will or codicil shall be charged with any debt, and 
 any creditor, whose debt is so charge{.l, shall attest the execu- 
 tion of such will or codicil, every such creditor, notwithstanding 
 such charge, shall be admitted as a witness to the execution of 
 such will or codicil, within the intent of the said act: Provided 
 always, that the credit of every such witness, so attesting the 
 execution of any will or codicil in any of the cases within this 
 act, and all circumstances relating thereto, shall be subject to 
 the consideration and determination of the court and the jury, 
 before whom any such witness shall be examined, or his testimony 
 or attestation made use of, in like manner as the credit of wit- 
 nesses in all other cases ought to be considered and determined, (z) 
 The former part of this statute restores the competency of the 
 attesting witness, by extinguishing all interest which he would 
 
 (1) Ililliard v. Jennings, 1 Lord (3) See on this subject Anstey v. 
 Ilaym. 505. Com. Rep. 91, S. C. Dowsing, 2 Stra. 1253. Wyndham 
 
 (2) Anon, case, 1 Mod. 107. Bet- v. Chetwynd. 1 Burn, 414. Hindson 
 tison V. Sir R Bromley, 12 East, 250. v. Kersey, 4 Burn. Eccl. Law, 88. 
 Phipps V. Pitcher, 1 Madd. Rep. 144. (4) St. 25 G. 2, c. 6, s. 1, 2, 6. 
 
 6 Taunt. 220, S. C. 
 
 {w) See Note 923, p. 1342. (x) See Note 924, p. 1343. (y) See Note 925, p. 
 1343. («) See Note 926. p. 1343.
 
 49G 
 
 Of the Proof of Wills. 
 
 [Ch. 8. 
 
 Proof of con- 
 tents of wills. 
 
 Otherwise take under the will. It applies to the case, where the 
 attesting witness is himself the legatee or devisee; and as to him, 
 and any person claiming under him, it makes the devise or 
 legacy absolutely void. It does not extend to the case, where 
 the attesting witness is the husband of a devisee, who takes an 
 estate in remainder under the will: such an attesting witness is 
 not made competent, by the statute, to prove the will. (1)(«) 
 
 The best proof of the contents of a will is the original will 
 itself. An exemplification under the great seal is not evidence 
 in an action of ejectment; (2) nor is the probate of a will in the 
 spiritual court any proof of a devise of real property; for if the 
 original is in existence, the copy is not evidence; and the seal of 
 the Court does not prove it a true copy, unless the suit relate 
 only to the personal estate. (3) But where the contents of a 
 will are given in evidence, not to establish a devise, but merely 
 for the purpose of proving a relationship, as stated in the will, 
 the rolls of ihe spiritual court, which has authority to enrol 
 have been thought admissible; (4) and if the original will has 
 been lost, the register-book or the ledger-book, in which the will 
 is set out at length, would be good evidence of its contents. (5) (6) 
 
 Proof of exe- 
 cution by 
 subscribing 
 witness. 
 
 The execution of a will is to be proved by the subscribing 
 witnesses, if they are alive and can be produced. On a trial at 
 common law, all the circumstances may be proved by a single 
 witness; that is, upon the supposition, that there are two others, 
 who would be allowed to give the same testimony. (6) If the 
 opposite party disputes the regularity of the execution, he may 
 call any of the other witnesses; but a devisee will not be obliged 
 to call the rest, if one alone can prove all the requisites to estab- 
 lish the validity of the will. This is the rule in courts of com- 
 mon law. (c) But on a bill filed in Chancery to establish a will, 
 tbe rule is, that all the witnesses ought to be examined by the 
 plaintiff. " It is the invariable practice in Chancery," said Lord 
 
 (1) Hatfield v. Thorp, 5 Barn. & (5) St. Legar v. Adams, 1 Lord 
 Aid. 589. Raym. 731. Skinner, 174. 
 
 (2) Comberb 46. (6) By Lee C. J. in Anstey v. Dows- 
 
 (3) Bull. N. P. 246. 1 Lord Raym. ing, 2 Stra. 1254. Bull. N. P. 264. 
 732. 
 
 (4) Buller, N. P. 246. 
 
 (rt) See Note 927, p. 1344. (6) See Note 928, p. 1345. (c) See Note 929, p. 1349.
 
 Sect. 2.] Of the Proof of Wills. 497 
 
 Camden, in ihe case of Hindson v. Kersey, (1) " never to establish Proof of 
 
 .,, , ,, I • -11 11-1 execution. 
 
 a Will, unless all the witnesses are examined, because the heir nas 
 
 a right to proof of sanity from every one of those whom the statute 
 has placed about his ancestor." [d) And on the trial of an issue 
 directed by the Court of Chancery, lo examine the validity of a 
 will, all the attesting witnesses ought to be examined; for the issue 
 is part of the proceedings of the Court. When tlie Court sends an 
 issue to be tried, it reserves lo itself the review of all that passes; 
 and there would be an inconsistency in requiring that all the three 
 witnesses should be examined in the Court of Chancery, yet dis- 
 pensing with their examination on the trial of an issue at law. (2) (e) 
 
 The facts to be proved by the subscribing witnesses are, that 
 the devisor signed the will, or that another person signed in his 
 presence and by his express direction, and that the witness and 
 two others attested and subscribed in the presence of the devisor. 
 First, as to the signing by the testator, it is not material in 
 what part of the will he makes his signature. The statute pre- Signing. 
 scribes no particular form, and does not require him to subscribe, 
 but simply to sign. It was therefore determined, in a case soon 
 after the passing of the statute, that if the testator writes his 
 name at the beginning or on the side, the signing is sufhcient. (3) 
 But where a will consisted of several distinct sheets, some of 
 which the testator signed, and intended to sign the rest, but v.'as 
 not able, Lord Mansfield thought this was not a signing of the 
 whnle will. (4) According to Freeman's report of the case of 
 Lemayne v. Stanley, (5) the Court said, " It is not necessary to 
 write; for some cannot write, and their mark is then a sufficient 
 signing: others have their name on a stamp, and that is good 
 enough." In that case also, three judges held, that, if the tes- 
 tator had put his seal, that would have been of itself a sufficient Sealing. 
 signing within the statute ; but Levinz J. doubted, on the autho- 
 rity of a case in Rolle's Abridgment, where the Court held, that 
 
 (4) 4 Burn. Eccl. Law, 93. Oi^le v. (4) Riglit deni. Cater v. Price, 1 
 
 CooI<, 1 Ves 177; Tovvnsend v. Ives, Doug. 241. 9 Ves. 249. Waliier v. 
 
 1 Wits. 216, S. P. WalUer, 1 Meri.vale, .50.S. 
 
 (2) Bootie V. Blundell, 1 Cooper, (5) P. 533. See also Ilindson v. 
 Ch. R. 136. Kersey, 4 Burn. Eccl. Law, 92, S. P. 
 
 (3) Leinauye v. Stanley, 3 Lev. 1. by Pratt, C. J. 
 Hilton V. King, 3 Lev. 86. 9 Ves. 248. 
 
 (d) See Note 930, p. 13.50. (c) Sec Note 931, p. 1351. 
 
 Vol. I. 63
 
 498 Of the Proof of Wills. [Ch. 8. 
 
 Proof of execa- an award which by the submission ought to have been signed \>y 
 
 the arbitrator, was not good in law, because it had been only 
 
 sealed. (1) Lord Raymond ruled in a case at nisi prius, (2) and 
 Lord Holt is also reported to have said, (3) that sealing was a 
 signing within the statute. But later authorities appear to have 
 considerably shaken this doctrine; (4) and now the established 
 rule seems to be, that sealing without signing is not a sufficient 
 execution of the will. A bare sealing certainly cannot answer 
 the purposes which the legislature had in view: it cannot identify 
 the instrument, nor does it bear, like writing, any peculiar cha- 
 racter. " The statute," said Lord Hardwicke, in one of the 
 cases upon this subject, (5) " by requiring the will to be signed, 
 undoubtedly meant some evidence to arise from the hand writing; 
 then how can it be said that putting a seal to it, would be a 
 sufficient signing.'' for any one may put a seal. No particular 
 evidence arises from sealing ; common seals are alike; no cer- 
 tainty or guard arises from thence." 
 
 In a late case, where it appeared that the testator was blind, 
 the Court of Common Pleas determined, that it was not neces- 
 sary to read over the will previous to the execution, in the 
 presence of the attesting witness. (6) " The statute of frauds," 
 said Mr. Justice Heath, on that occasion, " only requires, that 
 the testator shall execute the will in the presence of ihe attesting 
 witnesses, and, in ordinary cases, when that is done, all is done 
 that is necessary. In the case of a blind man, stronger evidence 
 would be required than the mere attestation of signature: but in 
 this case there was that stronger evidence which the peculiarity 
 of the case seems to call for. Sufficient attention," continued 
 Mr. Justice Heath, " has not been paid, in the course of the 
 argument, to the distinction between what shall be deemed a 
 literal compliance with the provisions of the statute, and what 
 sufficient proof to rebut any imputation of fraud. The question 
 
 (1) See ante, p. 472. llarclwicUe, 2 Ves. -459; Ellis v, Smilli, 
 
 (2) Warneford v. VVarneford, 2 Stra. 1 Ves. jun. 1 1 , liy Parker, C. B , Willes 
 764. C. J., and Sir J. Strange. See also 17 
 
 (3) Lee v. Libb, 1 Show. 68. Ves. 458. IS Ves. 175. 
 
 (4) Smith V. Evans, 1 Wils. 313, by (5) 2 Ves. 459. 
 
 Parker C. D. and the two other Barons (6) Longchanip v. Fish, 2 New Rep. 
 present. Grayson v. .\tkin9on, by Lord 415.
 
 Sect. 2. j Of (ho Proof oj Wills. 499 
 
 of fraud is for the jury entirely, and Ijere iliey found the will to Proof of 
 be a valid will." (/) 
 
 The subscribing witnesses are to attest the signing; but the Auestatioo. 
 statute does not direct that they shall see the testator sign, or 
 (hat he should sign in their |iresence. It requires only an at- 
 testation of the signing. Now, at the lime of making that act 
 of parliament, and ever since, if a bond or deed had been signed 
 by the party, who afterwards acknowledged it to be his hand- 
 writing before witnesses, that was always considered to be evi- 
 dence of the signing by the person executing, and a sufficient 
 attestation by the subscribing witnesses: (1) and the rule is pre- 
 cisely the same, where a note or declaration of trust, or any 
 other instrument which requires a bare signing, is acknowledged 
 before witnesses. From analogy to these cases, it has been What, 
 determined in the case of wills, that the subscribing witness 
 need not see the act of signing, but that it will be sufficient if 
 the testator has acknowledged to them, either to each separately 
 or to all at the same time, that the will is his, or that the sig- 
 nature is his hand-writing. (2) And the subscribing witneses need 
 not express in their attestation, that they subscribed their names in 
 the presence of the testator; but whether they did so subscribe, is 
 a question for the consideration of the jury, to be determined up- 
 on the evidence. (3) 
 
 The statute requires the witnesses to attest the signing and 
 to subscribe, but does not direct that they shall be all present 
 at the satne time; and although an attestation and subscrip- 
 tion by all the witnesses at the same time would be the best 
 security against fraud and imposition, by making each a check 
 upon the other, yet in the interpretation of the statute, courts Separate. 
 of law early determined, and it is now an established rule of 
 property, that the witness may subscribe at several times. (4) 
 
 (1)2 Vc3. 457. (3) Brice v. Smith, Willes^s Rep. 1. 
 
 (2) Stonehouse v. Evelyn, 3 P. 4 Taunt. 217. As to the execution 
 
 Wms. 253. Grayson v Atkinson, under powers, see ante, p. 46S. 
 
 2 Ves. 454. Ellis v. Smith, I Ves. (4) C -ok v. Parsons, Prec. in 
 
 jun. 11. Addy v. Grix, 8 Ves. 504. Ciian. 185. Jones v. Lake, 2 Atk. 
 
 Westbeech v. Kennedy, 1 Ves. & 177, in note, S. P. Admitted in 2 
 
 Beam. 362. Vea. 458, and in 1 Ves. jun. 14. 
 
 (/) See Note 932. p 1352.
 
 500 
 
 Proof of 
 execution. 
 
 Of tht Proof of Wills. 
 
 [Ch. 8. 
 
 Mark. 
 Entire will. 
 
 Presence of 
 testator. 
 
 What. 
 
 An attestation by a mark has been adjudged to be a sufficient 
 subscription within the meaning of the statute. (1) 
 
 It is not necessary that the testator should declare the in- 
 strument, executed by him, to be his will, or that the witnesse.s 
 should attest every page, or that every page should be parti- 
 cularly shown to them. (2) The whole will, however, ought 
 to be present at the time of attestation; for if a person makes 
 a will on several pieces of paper, and there are three witnesses 
 to the last paper, and none of them ever saw the will, this is not 
 a sufficient execution. (3) But unless there is positive proof 
 that the entire will was not in the room, the question, whether 
 it was so or not, is a "question of fact to be left, with all the 
 particular circumstances of the case, to the consideration of the 
 jury. (4) 
 
 The witnesses are to attest and subscribe in the presence of 
 the testator; and as the object of this provision was to guard 
 against fraud, and prevent the substitution of a false will in the 
 place of the true one, the obvious meaning of the statute must 
 be, that the testator should be in such a state of mind, and in 
 such a situation, as to be capable of seeing the witnesses in the 
 act of subscribing. It will not be a good execution, if the 
 testator was in a state of insensibility, (5) or if it was impossible 
 for him to see the w'itness subscribe. "It is enough, if the 
 testator might see, it is not necessary that he should actually 
 see them signing; for, at that rate, if a man should turn his 
 head back, or look off, that would vitiate the will." (6) But if 
 the jury find the fact, that the testator might have seen what was 
 passing at the time of the subscribing, then it will be presumed 
 in favour of the attestation, that the testator actually saw what 
 he might have seen. In one case, the testator was sick in bed, 
 and the witnesses withdrev/ into a gallery, and there subscribed 
 it; between which gallery and the bedchamber where the 
 testator lay, there was a lobby with glass doors, and part of the 
 
 (1) Harrison v. Harrison, 8 Ves. (3) Lea v. Libb, 3 Mod. 262. 1. 
 185. Addy v. Grix, ib. 501. Eq. Cas. Ab. 403, S. P. 
 
 (2) Bond V. Scawell, 3 Burr. 1775. (4) Bond v. Seawell, 3 Burr. 1773. 
 1 Black. Rep. 407, 422, 454. (5) Cater v. Price, 1 Doug 241. 
 
 (6) Shires v. Glascock, 2 Salk 6S7.
 
 Sect. 2.] 0/ the Proof of WiUs. 601 
 
 glass was broken. (1) In another case, the testator hiy in bed fr^of of 
 o ^ ' execution. 
 in one room, and the witnesses vvent through a small passage 
 
 into another room, and there set their names at a table in the 
 middle of the room, and opposite to the door, and boih that and 
 the door of the testator's room were open. (2) In a tliird case, 
 the testatrix sat in her carriage opposite the window of her 
 attorney's office, in which office the witnesses subscribed their 
 names. (3) In all these cases (and in others, which might be 
 mentioned to the same effect, differing only in their peculiar cir- 
 cumstances,) the execution was held to be sufficient, the material 
 fact being proved, that the testator might have seen the attest?^- 
 tion, if he had chosen to look. 
 
 If one of the subscribing witnesses can prove the execution Proof by one 
 (as, that the testator signed in the presence of himself and two 
 other witnesses, or that he acknowledged his signing to each 
 of them, and that each of the witnesses ijubscribed in his pres- 
 ence,) this will be a sufficient proof of the will without calling 
 the others. But if the witness, who is called, can only prove 
 his own share in the transaction, as must happen where the 
 testator acknowledged his signing to the witnesses separately, the 
 other witnesses ought in that case to be called. If they are dead 
 or insane, their hand-writing, and the hand-writing of the tes- 
 tator ought to be proved; it will then be a question for the jury, 
 whether, under the circumstances of the case, it is probable that 
 all the formalities of the statute were regularly observed. (4) 
 
 The cause of attestation generally expresses, that the witnesses ^°\^ ^^ nxiea- 
 subscribed in the presence of ihc testator; but such a statement 
 is not absolutely necessary; and though it is entirely omitted, 
 the omission will not conclude the jury from finding, that the 
 will was so subscribed. In the case of Croft v. Pawlett, (5) the 
 attestation was, that the will had been signed, sealed, published, 
 and declared as his last will, in the presence of the subscribing 
 
 (1) Sir G. Sheer's case, cited (4) Hands v. James, 2 Comyn's 
 Carth. 81. Rep. 530. Croft v. Pawlet, 2 Stra. 
 
 (2) Davy and another v. Smith, 1109. Brice v. Smith, Willes's Rep. 1. 
 3 Saik. 395. S. P. Lord Ranciiffe v. Parkyns, 6 
 
 (3) Cosson V. Dade, 1 Brown, Ch. Dow. 202. 
 
 C. 99. See also Doe dam. Wright (5) 2 Str. 1109. 
 and others v Manifold, 1 Maule & 
 Selw. 294.
 
 oO'i 
 
 Of the Proof of Wills. 
 
 [Cli. 8. 
 
 Proof of 
 execution. 
 
 Witness 
 abroad. 
 
 Witness deny- 
 ing. 
 
 wimesses: ilie uiinesses being dead, and ilieir Bignatures proved 
 in tl)e common way, il was objected, tliat this was not an exe- 
 cution according to the statute of frauds; for the signatures of 
 the witnesses could only stand as to the facts to which they had 
 subscribed, and signing in the presence of the testator was not 
 one: but the Court were of opinion, that this was a matter of 
 evidence to be left to the jury, and they gave a verdict in favour 
 of the will, {g) 
 
 If a subscribing witness is abroad, who ought to be called if he 
 could be produced, his hand-writing may be proved in the case of 
 a will, as in cases on the execution of a deed; and the ride appears 
 to be the same in courts of equity. 'J'hus, where a question arose, 
 whether il was necessary to send out a coinmission to examine one 
 of the witnesses, who was in Jamaica, Lord Alvanley, then Mas- 
 ter of the rolls, held, that it was not necessary to have his examina- 
 tion, but that the case was the same as if the witness were dead: 
 (I) the heir at law, he observed, did not make a point of it, but 
 submitted it to the Court; and he cited a case, wh.ere it was 
 thought not only unnecessary, but very dangerous to send the will 
 abroad. And in another case, where it was objected, that one of 
 the witnesses was abroad, Lord Chancellor Thurlow said, he doubt- 
 ed whether the rule had ever been laid down so largely, as that the 
 will could not be proved wit!)out examining all the witnesses al- 
 though that had been the practice. (2) (/i) 
 
 If a subscribing witness should deny the execution of the will, 
 he niay be contradicted, as to that fact, by another subscribing 
 witness ; and even if they all swear that the will was not duly 
 executed, the devisee would be allowed to go into circumstantial 
 evidence, to prove the due execution. (3)(?) If one of the sub- 
 scribing witnesses, impeach the validity of the will on the ground 
 of fraud, and accuse other witnesses, who are dead, of being ac- 
 complices in the fraud, the devisee may give evidence of their 
 general good character. (4)( j) 
 
 (1) Ld Carrington v. Payne, 5 
 Ves. 411. 
 
 (2) Powel V. Cleaver, 2 Brown, 
 Ch. C. 504. See Grayson v. Atkin- 
 son, 2 Ves. 460. 
 
 (3) Austin V. Willes, Bull. N. P. 
 264. Pike v. Badniering, cited 2 Stra. 
 1096. Lowe v. Joliffe, 1 Black. Kep. 
 365. 
 
 (4) Vide supra, p. 308. 
 
 ig) See Note 933, p. 1352. (A) See Note 934, p. 1354. (t) See Note 935, p. 
 1356. (>) See Note 936, p. 1356.
 
 Sect. 2.] Of the Proof of Wills, 603 
 
 Wlien tlie subscribing witnesses are dead, and no proof of P'■o"''o''exe- 
 , . , , . . 11-1 r II cution. 
 llieir hand-wnling can he obtained, as mnst Irequenily happen 
 
 in the case of old wills, it will be sufficient to prove tlie signature ^'i?"'^*'^"''* 
 
 ' ° wills. 
 
 of the testator alone. In a case, (1) where the hand-uriiing of 
 two subscribing witnesses was proved, and no account could 
 be given of the third, the will being above thirty years old, and 
 the testator having been dead for twenty years, an objection was 
 made to the proof of the will; but the Master of the Rolls said, 
 he could not see any distinction in this respect between a will 
 and a deed, except that the former, not having effect till the 
 death, wants a kind of autlienticaiion, which the other has; that 
 is, from the nature of the subject; but in this case, he added, I 
 think the proof sufficient: for in a late case in the Court of 
 King's Bench, Cunliff v. Sefton, (2) an enquiry of the same 
 kind was held sufficient. The Master of the Rolls therefore 
 held, that the execution of the will had been sufficiently proved. 
 
 In the case of CaliliMrpe v. Gough and others, at the Rolls, (3) Thirty years 
 a will thirty years old (reckoned from the date of the will, not °'*^' 
 from 'the testator's death,) was not proved by witnesses; and it 
 was said at the bar, that proof was not necessary on account of 
 the age of the will; and, in support of this, a case of Mackery v. 
 Newbolt was ciied, in which Sir Lloyd Kenyon, then Master of 
 the Rolls, is said to have decided, that a will above thirty years 
 old should be read without proof, although the testator had died 
 very recently. That point, however, was not decided in the 
 case of Calthorpe v. Gough, because the plaintiff, the heir at 
 law, admitted the will, and claimed under it. In the late case of 
 Lord Randiffe v. Parkyns, (4) the Lord Chancellor is reported 
 to have expressed an opinion, that a will, thirty years old, if 
 there has been possession under it, proves itself, when the attes- 
 tation records the fact of the signing of the witnesses in the tes- 
 tator's presence; and, if the signing is not sufficiently recorded, 
 yet that the fact of possession under the will, and claiming and 
 dealing with the property as if it had passed under the will, 
 would be cogent evidence to prove tlic duly signing by the wit- 
 
 (1) Al'Kenzie v. Fraser, 9 Ves. 5. n. (t). 
 
 (2) 2 East, 183. (4) 6 Dow. 202. 
 
 (3) 4 Term Rep. '0~. n. (a), 709.
 
 504 Of Stamping. [Ch. 9. 
 
 nesses. (1) The general rule seems to be, lliat a will, thirty years 
 old, unless there has been possession under it, ought to be proved 
 like any oilier will. (A:) 
 
 (1) 6 Dow. 202. 
 
 CHAP. IX. 
 
 Of Stamping, as a Requisite of Wriilen Instruments. 
 General rule. 
 
 A WRITTEN instrument, which requires a stamp, cannot be 
 admitted in evidence, unless it be duly stamped; and no 
 parol evidence will be received of its contents. If, therefore, 
 the instrument produced is the only legal proof of the transaction, 
 and that cannot be admitted for want of a proper stamp, the 
 transaction cannot be proved at all; (1) as, in an action for use 
 and occupation, if it appear that the defendant held under a 
 written agreement, which for want of a stamp cannot be received, 
 the plaintiff will not be allowed to go into general evidence; for 
 the agreement is the best evidence of the nature of the occupa- 
 tion. (2) Parol evidence of a lost agreement cannot be received, 
 if the agreement was on unstamped paper; though it has been 
 wrongfully destroyed by one of the parties, yet the other party 
 will not be permitted to approve its contents by parol evidence: 
 ;his is one of the risks which attend the omission to have the 
 agreement properly stamped, that, if any accident happen to 
 it, before the stamp is affixed, ail remedy by action is entirely 
 gone. (3) 
 
 Proof of the But it may happen in a variety of cases, that the transaction 
 
 witJwut 'writ- '^ capable of being proved by other evidence besides the written 
 '"g- instrument; and the objection, arising from the stamp-acts, may 
 
 be avoided by resorting to that other species of proof. Thus, 
 although an unstamped receipt for the payment of a bill is not 
 admissible in evidence, yet the fact of payment may be proved 
 by a witness, who saw the money paid; and even such an un- 
 
 (1) R. V. St. Paul's, Bedford, 6. T. C. 213. Doe dem. St. John v. Hore, 
 R. 452. Hodges V. Drakeford, 1 New 2 Esp. N. P. C. 724. Ramsbottom v. 
 Rep. 271. R. V. Castle Morton, 3 Mortley, 2 Maule & Selw. 445. 
 
 Barn. & Aid. 588. (3) Rippener v. Wright, 2 Barn. & 
 
 (2) Brewer v. Palmer, 3 Eap. N. P. Aid. 478. 
 
 (fc) See Note 937, p. 1356.
 
 Ch. 9.] as a Requisite of Written Instruments. 505 
 
 stamped receipt may be shown to the witness, as a ineniorandum 
 to refresh his memory. (1) So, in an action on a promissory 
 note, though the plaintiff (annot give the note in evidence, 
 unless it is duly stamped, yet he will not be precluded from 
 recovering on one of the general counts of the declaration, if he 
 can prove an admission of the general debt, or give other evi- 
 dence of a consideration received by the defendant. (2) When Admission on 
 a party to the suit admits en the record that which, if not '^^'^"'^ ' 
 admitted, the other party must regularly prove, it cannot be neces- 
 sary to produce that evidence which would otherwise be required. 
 Thus, where an action is brought upon an agreement, which 
 ought to be stamped, and the form of the pleading is such as to 
 make it unnecessary at the trial to produce the instrument, (as, if 
 it is admitted on the record, and the trial is upon issues collateral 
 to the existence of the agreement,) a court of law will not ex- 
 amine, whether the instrument is legally available with reference 
 to the stamp-acts. (3) So, where a plaintiff filed a bill in Chan- 
 cery for the specific performance of an agreement, contained in a 
 correspondence between him and the defendant, and the answer 
 of the defendant admitted the letters, insisting only, that they 
 did not amount to an agreement, \he Court held that such an ad- 
 mission dispensed wiih the necessity of producing the letters, and 
 that no objection to the agreement could be taken for the want 
 of a stamp. (4) 
 
 Written agreements and other instruments, made in a foreign Foreign 
 country, are not admissible m evidence m any oi our courts, 
 unless duly stamped by the laws of that country: if they are not 
 obligatory abroad, they cannot be enforced here. Where a 
 promissory note had been made in Jamaica, but not stamped as 
 it ought to have been by the laws of that island, the Court of 
 King's Bench held, that a party could not recover here upon 
 the note. (5) The party, who takes this objection to the validity 
 of the instrument, will have lo show, that a stamp was necessary 
 
 (1) Ilainbert v. Coiien, -1 Esp. N. P. (3) My lA. Eidon Ch., 11 Ves. 596. 
 C. 213. Jacob v. Lindsay, \ East, Iliern v. Mill, 13 Ves. 114. Tliyiine 
 460. V. Protheroe, 2 Maule & Seiw. 553. 
 
 (2) Farr V. Price, I East, 57. Alvea (4) Huddlestoii v. Briscoe, 11 Ves. 
 V Hodgson, 7 T. R. 243. Tyte v. 5S3. 
 
 Jones, I East, 58. n. (a). Brown v. (5) Alves v. Hodgson, 7 T. R. 241. 
 Watts, 1 Taunt. 353. Wade v. Beasley, Ciegg v. l^evy, 3 Campb. 166. Grutchly 
 4 Esp. N. P. C. 7. ' V. Mann, 5 Taunt. 529. 
 
 Vol. I. 64
 
 506 Of Si (imping, [Cli, 9. 
 
 Denomiimiion by the law of tlie country ; and for iljis purpose an autlienticatod 
 
 '^ '"" ^' copy of the law ought to be produced. (I) If a person, resident 
 
 abroad, desire his correspondent in England to fill up a bill of 
 exchange, and return it to him to be signed, and he afterwards 
 signs it abroad, the bill does not require to be stamped, as if it 
 had been drawn in this country ; and the rule is precisely the 
 same, whether he signs his name as drawer, before or after he 
 sends it over to this country to be filled up by his corre- 
 spondent. (2) In the case of Snailh v. Mingny, (3) which was 
 an action by an indorsee against the indorser, a person resident 
 in Ireland subscribed his name in the character of drawer, and 
 afterwards as first indorser, on a paper, which was properly 
 stamped according to the revenue laws of Ireland, and had every 
 mark to designate it as a bill of exchange; he then sent it over 
 to this country with authority to his correspondent to insert the 
 day of the date, the sum, and the name of the drawee; and it 
 did not appear, that there was any intention of evading the stamp 
 laws, or any imputation of fraud in the transaction: under these 
 circumstances, the Court of King's Bench were of opinion, that 
 the bill was an incipient bill in Ireland, though it was completed 
 here, and that, after it had been completed, it was to be con- 
 sidered as a bill of exchange from the time of its being signed by 
 the drawer ; and conserjuently that an English stamp was not 
 necessary. 
 
 Denomination j^ jg j^qj sufficient, that the stamp used is of the proper value; 
 of stamp. ' ... 
 
 the stamp mu.st also be of the proper denomination, that is, the 
 
 peculiar stamp appropriated to the particular species of instru- 
 ment. (4) A receipt-stamp will not avail, if used upon a 
 promissory note; nor a note-stamp, if used upon a receipt. 
 Articles of agreement under seal require a deed-stamp; an agree- 
 ment-stamp will not be sufficient, though it may be of greater 
 value. (5) An instrument, containing a present demise of a 
 
 (1) Buchanan v. Rucker, 1 Cainpb. (3) 1 Maule & Selw. 87. 
 
 65. Le Cheminant v. Pearson, 4 Taunt (4) Stat. 37 G. 3. c. 136. s. 1. Stat- 
 
 S67. Millar v. Heinriclc, 4 Canipb. 48 G. 3. c. 149. s. 4. Chamberlain v. 
 
 155. As to proof of foreign laws, vide Porter, 1 New Rep. 30. Wilson v. 
 
 snpra, p. 401. Vysar, 4 Taunt. 288. Doe dem. Dje v. 
 
 (2) Maule & Selw. 04. Boehm v. Whitlingham, 4 Taunt. 21. 
 Campbell, (iow, N. P. C. 56. Mr. (6) Robinson v. Drybrough, 6 T. R. 
 .Justice Bayley's Sunimarv of Law of 317. 
 
 Bills, &c. 4th ed. p. 66.
 
 Ch. 9.] as a Requisite of Written Instruments. 507 
 
 house, containirm; also an agrcetncnt for goods and fixtures in Denomination 
 
 , ..... of stamp. 
 
 the house, requires a lea.'se-stainp, the one contract heing auxuiary 
 
 to the other; and, unless it is so stamped, cannot be given in 
 evidence as an agreement for the sale of goods, in an action to 
 recover the amount. (1) 
 
 The statute 37 G. 3. c. 136, contemplates the mistakes which ^"^ ^- ^• 
 may arise in the use of stamps, and makes provisions for those 
 mistakes. It enacts, that where any instrument (except bills, 
 notes, and drafts,) shall have been stamped with a stamp of a 
 different denomination, but of equal or greater value than that 
 required by law, the commissioners, upon payment of the duty 
 and a penalty of 5/., may stamp the same with a proper stamp. 
 With re.'-pect to bills and notes (which by statute 31 G. 3. c. 25 
 were forbidden to be stamped after they were made,) the statute 
 of the 37th G. 3. provides, that bills and notes, which should 
 be made subsequent to that act, and stamped with an improper 
 stamp, but of equal or greater value than the stamp required, 
 may be stamped by the commissioners on payment of the duty 
 and a penahy. But bills and notes, made before that act, re- 
 main in the same situation as if the act had not passed. The 
 statute 43 G. 3. c. 127. s. 6. provides, that if the stamp is of the 43 G. 3. 
 proper denomination, it shall not be ineffectual from being of a 
 greater value than the stamp acts require. Before this act, a 
 stamp of greater value, though of the proper denomination, had 
 been determined to be insufficient. (2) And the statute 55 G. 3. 55 G. 8. 
 c. 18-1. s. 10. provides, that all instruments, upon which any 
 stamp shall have been used of an improper denon)ination or rate 
 of duty, but of equal or greater value in the whole than the 
 stamp which ought regularly to have been used, shall be deemed 
 valid and effectual in law, except in cases where the stamp 
 used in such instruments shall have been specifically appro- 
 priated to any other instrument by having its name on the face. 
 In the case of Taylor v. Hague, (3) indeed, before the statute of 
 the 43 G. 3. the Court held, that a promissory note, upon a 
 stamp of a higher value than was required, would be available, 
 on the particular ground, that the value was composed of three 
 
 (1) Corder v. Drakeford, 3 Taunt (2) Farr v. Price, 1 East, 55. 
 
 882. (3) 2 East, 414.
 
 508 
 
 Oj Stamping, 
 
 [on. 'J. 
 
 Several 
 stamps. 
 
 Receipl. 
 
 difierent sums applicable to several funds, to which the duties on 
 promissory notes were carried. 
 
 An account made out by the one party of goods and cash 
 advanced to the other party, and subscribed by hiin as having 
 Acknowledg- <-i received the contents," requires a receipt-stamp. (1) But an 
 account of sums advanced to a party, and of disbursements by him, 
 subscribed by him, " acknowledged to be correct," is admissible 
 as a mere acknowledgement without stamp. (2) An instrument 
 in the following form, — " received of A. B. lOOZ., which I promise 
 to pay on demand, with lawful interest, must be stamped as a 
 promissory note. (3) 
 
 Dient. 
 
 Promissory 
 note. 
 
 Several 
 stamps, wlieri 
 necessary. J 
 
 A question has often arisen, whether an instrument, to which 
 several persons are parlies, requires several stamps, or whether a 
 single stamp is sufficient. And the distinction established is, that 
 if the interest of the parties relates to one thing, which is the 
 subject-matter of the instrument, or, in other words, if the in- 
 strument affects the separate interests of several, and there is a 
 community of the same subject-matter as to all the parties, (4) 
 there a single stamp will be sufficient: but where the parties have 
 separate interests in several subject-matters, there ought to be a 
 separate stamp for each party, against whom, or in whose favour, 
 the instrument is offered in evidence. 
 
 CompositioD 
 deed. 
 
 To illustrate the first part of tlie rule, if a debtor compounds 
 with his creditors, and each creditor signs the same deed, cove- 
 nanting either to give further day of payment, or to take a cer- 
 tain sum as a composition; there, every covenant is in fact a 
 separate covenant, and the several deed of each creditor, who 
 signs the deed; but the whole being only one transaction, a 
 separate stamp for each person is not required. (5) So, if several 
 persons bind themselves severally in a penalty by one bond, 
 conditioned for the performance of certain acts, by each and 
 every of them, such a bond requires only one stamp. (G) Upon 
 the same principle, it has been held, that an agreement relating 
 
 (1) Jacob V. Lindsay, I Eust, 460. 
 
 (2) Wetland V. Moss, 1 Bing. 134. 
 
 (3) Green v. Davies, 4 Barn. & 
 Cress. 235. 
 
 (4) 13 East, 246. 
 
 (3) 1 New Rep. 27S, Go(,dson v. 
 Forbes, 6 Taunt. 171. 1 Marshall, 
 52.5, S. C. 
 
 (6) Bovvcn V. Ashley, 1 New Rep 
 274.
 
 Ch. 9.] as a Requisite of Wrllien Instruments. 509 
 
 to the prize shares of diflerent persons, though several as to the Several 
 share of each, yet being payable in respect only of one entire , . 
 
 fund, is only chargeable with one stamp. (1) And on the 
 authority of this case, the Court of King's Bench, determined, 
 in a late case, that a single stamp was sufficient for an agree- 
 ment, which several persons had entered into for a subscription 
 to one common fund, for the purpose of constructing a dock. (2) 
 In the case of Jones v. Sandys, (3) the question was, whether a 
 bond, in the condition of which a mortgage-deed was mentioned, 
 ought to have had two stamps: and the Court held, that it was 
 not necessary; and in delivering their opinion, they mentioned 
 the cases of bargain and sale, lease and release, mortgage with 
 covenant to pay the money, as constantly charged \vith only the 
 single duty. 
 
 But the rule is different, where the instrument includes in 
 effect several transactions, and the subject-matter is distinct as to 
 the several parties. Thus, an instrument, containing the admis- 
 sions of several persons to a corporation, requires as many stamps 
 as there are admissions. This was determined in the case of the Admission of 
 King V. Reeks, (4) where, in a trial at bar, on an information in burgesses, 
 the nature of a quo warranto^ to prove the admission of the de- 
 fendant, a paper was produced, containing the admissions of the 
 defendant and four other burgesses, which paper was stamped 
 only with one stamp: it was then objected, on the part of the 
 Court, that this paper, iiaving only a single stamp, could not be 
 admitted to be read in evidence; for the statute 9 & 10 W. 3. 
 c. 25. s. 27. enacts, that a certain duty shall be paid for every 
 piece of parchment or paper, upon which any admission into any 
 corporation, &c. shall be written: and the 59lh section enacts, 
 that " if any instrument or writing, by that act intended to be 
 stamped, shall, contrary to the intent thereof, be written or en- 
 grossed by any person whatsoever (not being a known officer, 
 who in respect of any public office or employment shall be entitled 
 to write the same,) upon parchment or paper not stamped accord- 
 ing to that act, then there shall be paid, over and above the 
 duty for such instrument, ten pounds; and that no such instru- 
 ct) Baker V. Jardine, 12 East, 235. (3) Barnes, 463. 
 n. {I,). (4) 2Ld. Raym. 1445. 2 Str. 716. 
 (2) Davis V. Williams, 13 East, 232. S. C.
 
 510 Of Stamping, [Ch. 9. 
 
 Bevcrnl ment shall be pleaded or given in evidence in any court, or ad- 
 
 " °"''^^' milted in any court to be good or available in law or equity, until 
 
 as well the said duly as ten pounds should be paid, &c., and a 
 receipt produced for the same," &c.: under this section of the act 
 it was insisted, that the instrument in question, being an ad- 
 mission of five persons to be burgesses, ought to have five 
 stamps; tliat it could not be good for any one of the five on 
 account of the uncertainty, or at most it could be good only for 
 one; if it was good for any, it must be for the first named; but 
 the defendant was the third name, and therefore it could not be 
 good for him. And of tl.'is opinion, as the rc|)ort adds, was the 
 whole Court, after argument. The counsel for the defendant 
 then offcM'ed in evidence four other distinct pieces of parchment, 
 bearing date on the day mentioned in the information, each of 
 them being duly stamped, which imported the several admissions 
 and swearings of the four burgesses last named in the other 
 parchment, and one of them imported the particular swearing 
 and admission of the defendant. But the witness, who pro- 
 duced these pieces of parchment, proved, that the entries were 
 not made upon them, nor were any of them stamped, till near 
 two months after the day on which they bore date; and, an objec- 
 tion being taken on this ground to the single instrument, which 
 stated that the defendant alone was admitted and sworn, the 
 Court was clearly of opinion, that it could not be admitted in 
 evidence; for by the act the admission is to be on paper or 
 parchment stamped at the time; otherwise it is not to be given 
 in evidence till the penalty is paid, and certificate thereof pro- 
 duced. 
 
 In the case of The King v. Reeks, which has been just men- 
 tioned, the instrument first offered in evidence purported to con- 
 tain the admissions of five burgesses, and it does not appear, 
 that the single stamp, which was impressed, applied more to 
 the defendant's name than to any of the others. This circum- 
 stance distinguishes that case from two others lately decided, 
 Powell v. Edmunds, (1) and Doe, on the demise of Sir Joseph 
 Copley, V. Day, (2) in which a paper containing contracts by 
 
 (1) 12 East, 6. 182. Perry v. Bouchier, 4 Campb- 
 
 (2) 13 East, 241. See also Wad- 80. 
 dington v. Francis, 5 Esp, N. P. C.
 
 Ch. 9.] as a Requisite of Written Instruments. 51 1 
 
 several persons relative to different things, thongli stamped with Alteration of 
 
 , ^ 1- J J . I J -1 .instrument. 
 
 a Single stamp, was adjudged to be good evidence as to one of 
 
 the contracting parties, because the stamp appeared to be ap- 
 plicable exclusively to his name. In the first case, the paper 
 contained an agreement, signed by the defendant, for a lot of 
 timber, and underneath a second agreement, with another person 
 for a different lot; this last had pencil marks drawn across it, 
 as if for the purpose of striking it out; the stamp was affixed 
 on that part of the paper on which the defendant's agreement 
 was written, and below was the stamp-officer's receipt for a pe- 
 nalty "for making the above t^greement." An objection was 
 taken on the ground of there being a single stamp, which was 
 over-ruled at the trial, and afterwards by the Court of King's 
 Bench. In the other case, (I) the paper contained a variety of 
 independent lettings of land betwen the landlord and a number 
 of his tenants, one of whom was the defendant; the stamp was 
 affixed opposite the defendant's name, and it appeared from the 
 receipt of the stamp-officer, that the money of affixing it was 
 paid after the commencement of the action and only a short 
 time before the trial; the instrument also appeared, when pro- 
 duced in evidence, to be cancelled with black-lead pencil marks 
 as to every name except that of the defendant, and it was not 
 proved, that the instrument was not so cancelled at the time 
 when the stamp was affixed. Under these circumstances the 
 Court held, that the single stamp was intended to be applied 
 to the contract with the defendant, and consequently that the 
 paper was admissible. " If, indeed," said Lord Ellenborough 
 C. J., "the instrument had been required to substantiate the 
 several contracts with the different tenants, no doubt there should 
 have been a stamp affixed to each, although the same terms of 
 agreement applied to all: one stamp has been only held to be suf- 
 ficient upon an instrument affecting the separate interests of 
 several, where there has been a community of the same subject- 
 matter as to all the parties. But here it sufficiently appears from 
 the circumstances of the case, that the stamp was meant to be 
 applied to the defendant's signature." 
 
 When a stamped instrument has issued as a valid security, and ^{[''^f""" ^^ 
 
 change or 
 note. 
 
 (1) 13 East, 241. See also VVaddington v. Francis, 5 Esp. N. P. C. 182.
 
 Di::i 
 
 Of Stamping, [Ch. 9. 
 
 Alteration of |jcen oncc Lisod for one purpose, it cannot be altered without a 
 new Stamp. 11 the parties aherwards vary their original inten- 
 tion, and make a new instrument didereni from that which they 
 originally contemplated, a new stamp will be necessary. (1) If 
 a bill of exchange, for example, has been once effected, and has 
 issued in a perfect form from the drawer to the acceptor, by 
 whom it was returned with his acce[)tance to the drawer, it can- 
 not be altered without being rc-stamped. Thus, in the case 
 of Bowman v. Nichol (2), where a bill of exchange had been 
 drawn on a proper stamp, payable 21 days after date, and, 
 while it continued in the hands of the drawer, was altered with 
 the consent of the acceptor, to be made payable 51 days after 
 date, and was again altered to 21 days after date, subsequently 
 to the time of becoming payable according to its oiiginal form; 
 the Court of King's Bench held, that at the time when the last 
 alteration was made, the operation of the bill, as it originally 
 stood J was quite spent; that it was a new and distinct trans- 
 action between the parties; and that there ought to have been a 
 new stamp. So, where a promissory note, payable by the de- 
 fendant to the plaintiff or order (3), was originally expressed to 
 be for value received, but, on the day after it had been signed 
 and delivered by the defendant to the plaintiff, was with the 
 consent of the parties altered by the addition of the words " for 
 the good-will of a lease and trade." the Court held, that the 
 alteration was a material one, because it was evidence of a fact, 
 which, if necessary to be enquired into, must otherwise have 
 been proved by different evidence, and also because it pointed 
 out the particular consideration for the note, and put the holder 
 upon enquiring, whether that consideration had passed; a new 
 stamp was therefore necessary, for the want of which the note 
 could not be received in evidence. 
 
 A person having drawn a bill payable to his own order, in- 
 dorsed it to A., who indorsed it to B., and, the bill being dis- 
 honoured, paid the amount to B.; on which B. struck out his 
 
 (1) 15 East, 41S. Hastings, 4 Campb. 223. 1 Starkie, 
 
 (2) 5 T. R. 537. See also Master N. P. C. 215. S C. Outwaite v. 
 V. Miller, 4 T. R. 320. 2 H. BlacU. Luntley, 4 Campb. 179. Matson v. 
 141. S. C. Cardwell v. Martin, 1 Booth, 5 Maule & Selw. 226. See 
 Campb. 79.; 9 East, 190, S. C. Bathe Bayley on Bill, 4th edit. 91. 
 
 V. Taylor, 15 East 412. Walton v. (3) Kniil v. Williams, 10 East, 431.
 
 Cli. 9.] as a Requisite of Wrilicn Instruments. 513 
 
 own indorsement and A. 's indorsement, and returned the bill lo Alteration of 
 
 the drawer; the drawer (hen indorsed it, with the indorsements 
 
 struck out, to the jilalntifT, without a new stamp ; the Court of 
 King's Bench held, that the plaintiff was entitled to recover against 
 the acceptor; the bill not having discharged its functions, when 
 given to the plaintiff. (1) 
 
 An alteration of the date, (2) or of the time for which a bill has 
 to run, (3) made with the consent of the drawer and the acceptor, 
 before the bill is negotiated, will not render a new stamp neces- 
 sary; but it will be incumbent on the party, who sues upon the bill, 
 to prove the time of making the alteration. An alteration of the 
 date in an accommodation bill, made previously to its being issued 
 to the first bona Jide holder for a valuable consideration, will not 
 require a fresh stamp; for, until it is so issued, it is not a valid 
 security for money; in other words, it dees not issue as a legal 
 security until it passes the hands of a person who can make a 
 valid claim upon it. (4) 
 
 It is provided by the 13th section of the stal. 35 G. 3. c. 63., Alteration of 
 relating to stamp-duties on sea-insurances, " that nothing in ^raifce. '"' 
 that act shall be construed to extend to prohibit the making of 
 any alteration, which may lawfully be made in the terms or con- 
 ditions of any policy of insurance duly stamped, after the same 
 shall have been underwritten, or to require any additional stamp- 
 duty by reason of such alteration, so that such alteration be made 
 before notice of the determination of the risk originally insured, 
 (5) and the premium or consideration originally paid or con- 
 tracted for exceed the rate of 10 shillings per cent, on the sum 
 insured, and so that the thing insured shall remain the property 
 of the san)e persons, and so that such alteration shall not prolong 
 the term insured beyond the period allowed by this act, and so that 
 no additional or further sum shall be insured by means of such 
 alteration." 
 
 (1) Callow V. Lawrence, 3 Maule & (4) Downs v Richardson, 5 Barn. 
 Selw. 95. & Aid 674. 
 
 (2) Johnson v. D. of Marlborough,. (5) Uamstroin v. Bell, 5 Maule & 
 2 Starkie, N. P. C. 313. Selw. 270. 
 
 (3) Kennerley v. Nash, I Starkie, N. 
 P. C. 452. 
 
 Vol. T. 65
 
 614 Of Stamping, [CIj. 9. 
 
 Alteration of j,j ([^q case of Kensin";lon v. Inclis, (1) where ihe policy was 
 
 instrument. , ^ ^ , . , . ... , 
 
 . " on goods and specie on board of ship or ships saihng between 
 
 us^'/S'o/ ^^^^ Is^ o^ October, 1799, and the 1st of June, 1800, being the 
 icilins. property which should first sail to a certain amount, and upon 
 
 the vessels carrying the goods," and a memorandum was written 
 on the policy and subscribed by the defendant on the 1 1th of June, 
 1800, before any notice of the determination of the risk had been 
 received, b\ which memorandum it was agreed to extend the time 
 of sailing to the 1st of August following, the Court of King's 
 Bench in this case held, that the memorandum did not require a 
 stamp; for although the lime of sailing was extended, yet no 
 new subject of insurance was introduced by the memorandunij but 
 the object insured continued the same. 
 
 2. Alteration In another case, (2) which occurred upon the same clause, 
 Tnsurld"^^' ^ where the policy was originally " on ship and outjit,^^ from Lon- 
 don to the South Seas, but, after the sailing of the ship, was 
 altered by consent of the underwriters, and declared to be " on 
 the ship and goods^''^ instead of ship and outfit, the Court deter- 
 mined, that, as the outfit, originally insured, was essentially '^dif- 
 ferent from goods, which were afterwards made the subject of 
 insurance, the policy in its altered state required an additional 
 stamp. '• The question is," said Lord Ellenborough C. J., in 
 delivering the judgment of the Court, " whether that part of the 
 provision, which requires, that ' the thing insured shall remain 
 the property of the same person,' has been in this case complied 
 with. The words, ' the thing Insured shall remain the pro- 
 perty,' appear properly to require and apply to one identical and 
 continued subject-matter of insurance; such subject-matter all 
 along remaining the property of the same proprietor, and to be 
 ill suited to a case like the present, where the thing last insured 
 is not only in fact, but in name and kind, as a specific subject of 
 insurance, essentially different from the thing first insured, and 
 which begins also to have an existence at a different and much 
 later period llian the oiher, and when the thing first insured 
 
 (1) 8 East, 273. Hubbard v. Jack- £ East, 351. Hubbard v. Jackson, 4 
 SOD, 4 Taunt. 169. Ridsdale v. Shed- Taunt. 169- The cases on this subject 
 den, 4 Campb. 107. are collected in Parke's Treatise on In- 
 
 (2) Hill V. PaUen, 8 East, 373. surances, p. 46., last edit. 
 1 Campb. 72. S. C French v. Pattenj
 
 Ch. 9.] as a Requisite of IVritien Instruments. 516 
 
 scarcely or in a smull degree only, remains or continues to oxibl ^^|.\7J',lIent°'' 
 at all."' — 
 
 A memorandum indorsed upon a policy waiving the war- f„ JI;,':^^^^*; J °} 
 ranty of sea-worlhiness, does not require a new stamp. (1) sea-icorthi- 
 And Mr. Justice Bayley comj)ared the case to that of a war- ''"*' 
 ranty to sail within a certain time, which may be altered by an 
 unstamped memorandum, even afier the period when the con- 
 dition has terminated, without affecting the continuance of the 
 policy. 
 
 Where a policy has been executed Iti the common printed "*; S-JaterMi 
 
 I •' _ _ , ' , nlteralio!!. 
 
 form, without any specific subject of insurance expressed in 
 writing, and the subject-matter is afterwards inserted, the as- 
 sured cannot recover against those underwriters who have not 
 signed the policy after the addition; for a material alteration is 
 introduced with respect to such of the underwriters as have not 
 assented. (2) It has been determined by several cases, that a 
 material alteration in a material part of a policy of insurance, 
 made by one of the parties interested, without the consent of all 
 parties, destroys the policy as to those underwriters who have not 
 assented to the alteration, (o) Even if all the parties assent to 
 an alteration, and the alteration is such as to make the policy void 
 for want of a new s(amp, the policy cannot he enforced in its 
 original form. (4) This is a general principle, and applies equally 
 to bills of exchange, promissory notes, and other negotiable in- 
 struments. An iumiaterial alteration in a })olicy of insurance, 
 made by the party insured, (as, an alteration by the insertion of 
 words, which add nothing to what was expressed before in sub- 
 stance, and do not in any degree vary the legal effect of the 
 policy (5) will not vacate the policy, even as against a party who 
 refused his consent to the alteration. 
 
 Where an alteration is made in an instrument, with the con- Alterations to 
 
 r ,, ■ ■ , -11 1 correct mis- 
 
 sent 01 all parties, ui order to coirect a nustake, and to make takes. 
 
 (1) Weir V. Aberdeen, 2 Barn. & Molt, N. P. C 3.31. S. C. [Campbell v. 
 Aid. 325. Christie, 2 Starkie, N. P. C. 6-1. 
 
 (2) Langhorn v. Cologon, 4 Taunt. (4) Frencli v. Patten, 9 East, 351. 
 330. (5) Sanderson v. Symond.s, 1 Brod. 
 
 (3) Fairlie v. Christie, 7 Taunt. 416. & Bing. 426.
 
 516 Of Siam/nng, [Ch. 9. 
 
 ihe instrument consistent vviih the original intention of the parlies, 
 
 there it has been held, that a fresh stamp is not necessary. 
 
 Bill of ex- Thus in the case of Kershaw v. Cox, (I) where a bill had been 
 change. ^ ' 
 
 drawn payable to the defendant, but not payable to order, the 
 
 defendant on the day after the bill was drawn, indorsed it over 
 to the plaintiff, without adverting to the omission of the words 
 " or order;" on the same day the plaintiff returned it to the 
 defendant, to get the omission rectified, and the drawer then in- 
 serted the words; here, there was strong evidence to show, that 
 the omission was by mislak:^ for tlie bill was intended to be ne- 
 gotiable, and as sucli immediately indorsed, as if it had been 
 drawn payable to order, and as soon as the omission was dis- 
 covered, it was rectified by the proper parties: the learned Judge, 
 therefore, who tried the cause, left it to the jury to consider, wheth- 
 er the words, afterwards added, had been originally intended to 
 have been inserted, but were omitted by mistake; and the jury 
 finding this to be the case, it was ruled, that a fresh stamp was 
 not required. The point was afterwards brought before the Court of 
 King's Bench, on a motion lo enter a nonsuit, and the alteration 
 was adjudged to be allowable under the stamp acts; having been 
 made merely for the purpose of rectifying a mistake in drawing 
 the bill contrary to the intention of the parties. 
 
 Bill. In another case, which occurs upon this subject, where an 
 
 action was brought against the defendant as acceptor of a bill of 
 exchange, (2) it appeared, that the defendant and another per- 
 son being indebted to the plaintiff, agreed to give him a bill of 
 exchange, to be drawn by the one and accepted by the other 
 (the defendant:) instead of this, they sent him a promissory note, 
 made by the one and indorsed by the other, which the plaintiff 
 immediately returned, that it might be altered into a bill of ex- 
 change according to the agreement, and the alteration was ac- 
 cordingly made; an objection was taken, on the ground that the 
 instrument required a fresh stamp; but Lord Ellenborough, 
 C. J., ruled, that the stamp impressed was suflicient to render 
 
 (I) 3 Esp. N r. C. 246. before 1 Mauiu ii Selvv 217. Robinson v. 
 
 Le Blanc J., cited 10 East, 135., and Tobiii, 1 Starkio, N. P. C 336. 
 15 East, 417. Jacobs v. Hart, 2 Star- (2) Webber v. Maddocks, 3 Campb. 
 
 kie, N. P. C. 45. Robinson v. Touray, 1
 
 Ch. i.».J us a Rcquisiie (jj iVritlen Insirumenis. b\l 
 
 the instrument available, since it had not been negotiated as a 
 promissory note, and the alteration niiglit be treated as the 
 correction of a mistake, according to the terms of the original 
 agreement. 
 
 The case of Cole v. Parkin (1) affords another instance of the ^'." ^^^'■^^^ "^ 
 rectification of a mistake, in a bill of sale of a ship. The bill of 
 sale, m reciting the certificate of registry, staled Guernsey as the 
 port where the certificate was granted, instead of Weymoudi, 
 and in this stale was executed; but the mistake, being afterwards 
 discovered, was rectified with the consent of all parties, and the 
 deed delivered afresh: the question was, whether this second 
 delivery made a new stamp necessary. Lord EUenborough C. J., 
 in delivering the judgment of the Court, referred to statute 
 26 G. 3. c. 60. s. 17., which enacts, that a bill of sale of a regis- 
 tered ship, which does not truly and accurately recite the certi- 
 ficate of registry in words at length, shall be utterly null and 
 void to all intents and purposes. " This bill of sale, therefore, 
 when first executed, was, from the mistake in the recital of the 
 certificate of registry, to all intents and purposes null and void; 
 it took no effect whatever from its delivery; and the stamp 
 impressed upon it was wholly inoperative. This defect arose 
 not from intention, but from mistake. The instrument, as first 
 executed, was not what the parties meant to execute; and it was 
 not in the slate in which it was at first intended to be, till it was 
 altered. This is not the case of substituting a new and second 
 contract, in the place of a preceding effectual one, upon a change 
 of intention in the parlies; but merely making the contract what 
 it was originally intended to have been; and in such a case, 
 where the instrument upon its first execution was void to all in- 
 tents and purposes, where its insufficiency arose from a mere 
 mistake, where in consequence of that mistake it was not in the 
 state in which it was intended to have been, when it was so ex- 
 ecuted, and where upon its second execution it is only put into 
 that state which was originally intended, we think it is not going 
 beyond the fair spirit of the stamp-laws to hold, that upon such 
 second execution, being the first which was eflectually operative, 
 a new stamp was not requisite." So, the mistake of an agent, in i'ol'i^}- 
 
 (1) 12 East, 471.
 
 518 
 
 Of Stampings 
 
 [Ch. 9. 
 
 Unstamped cleclaiiijg lljc interest in llie margin of a policy lo be on a ship 
 
 writini', for , , t \ \ ■ .• .\ . 
 
 colliiteral by a uTong name, may be rectiliod by inserting tlie true name, 
 
 P"'"P"^'^ ^- wiilinut a fresh stamp. (I) 
 
 Unstamped Written instruments have been admitted in evidence without 
 
 instrument, . . , i i i 
 
 for collateral a Stamp \n ccrlam cases, when produced merely to prove sonne- 
 purposes. thing collateral, and not for the purpose of being enforced be- 
 
 tween the parlies, and when it was not material to consider 
 whether the instruments were good or available in law. In the 
 case of Holland q. t. v. Diiffiii, (2) which was an action to re- 
 cover several sums of money, forfeited by insuring tickets in the 
 lottery, contrary to the statute 22 G. 3. c. 47. s. 13., Lord 
 Kenyon held, that an instrument, purporting to be a policy of 
 insurance, niight be given in evidence, though not stamped as a 
 policy; for such a contract is declared by the act to be illegal 
 and void, and could not have been intended by the legisla'.ure as 
 an object of taxation. And in an action of debt for bribery at 
 an election under statute 2 G. 2. c. 24. s. 7. (3) Lord Ellen- 
 borough C. J. held that an unstamped promissory note pay- 
 able to the defendant, which a witness said he had given for 
 the re-payment of money, received by him as a voter from the 
 defendant (one of the candidates,) might be admitted as evi- 
 dence of the transaction, to corroborate the testimony of the 
 wittiess. 
 
 Unstamped 
 receipt. 
 
 An unstamped receipt may be shown to a witness as a memo- 
 randum, in order to refresh his recollection of a fact there 
 stated; (4) or for the purpose of confirming his evidence, in 
 case the receipt itself, if stamped, would be admissible as con- 
 firmation. (5) An unstamped contract, made between commis- 
 sioners of the navy and other persons, containing also a direc- 
 tion by the commissioners to their clerks, in consequence of the 
 contract, to issue certificates in a certain form, is evidence of such 
 a direction having been given, though not evidence of the con- 
 
 (1) Robinson v. Touray, 1 Maule (4) Rambert v. Cohen, 4 Esp. N. P. 
 & Selw. 217. Sawtell v. Loudon, 5 C. 213. Jacob v. Lindsay, 1 East, 
 Taunt. 359. 460. 
 
 (2) Peake, N. P. C. 57. (5) See Dover v. Maestaer, 5 E«p. 
 
 (3) Dover v. Maestaer, 5 Esp. iN. N. P. C 92. 
 P. C. 92. And see the point in Pooley's 
 
 case, on the second trial, infra, p. 521.
 
 Ch. 9.] as a Requisite of Wrilien Instruments. 519 
 
 tract. (1) A written aereement, for which an action of trover is Unstamped 
 
 . . . writing, for 
 
 brought, and wl)ich is produced at the trial by the defendant, collateral 
 is not inadmissible in evidence, on account of the want of a P"'"P°3e8. 
 
 stamp. (2) 
 
 An unstamped part of an agreement is admissible on the part Unstamped 
 
 1 • • n-- I • I r I f agreement. 
 
 of the plauiiin, as secondary evidence ol the agreement, after 
 proof of notice lo the defendant to produce the stamped part 
 which is in his possession (3) : and there can be no difference in 
 this respect, whether the plaintiff has specially declared upon 
 the agreement, or merely olTers it as evidence in the course of 
 the cause. 
 
 On a question of settlement by hiring and service, although 
 a general hiring cannot be presumed from the mere fact of 
 service, if the service has been performed under written articles 
 of agreement, which are not admissible in evidence for the want 
 of a proper stamp, yet, where the question is, whether the 
 service commenced after the expiration of the articles, they may 
 be properly inspected for the purpose of ascertaining this col- 
 lateral fact, uheiher they would apply to the subsequent ser- 
 vice. (4) 
 
 In an action for the non-delivery of goods, if the contract is Unstamped 
 I • 1-1 J • 1 1 1 1 I • paper, 
 
 proved by parol evidence, and it should appear iliat the parties 
 
 made a contract on unstamped jiaper, the Court may inspect the 
 instrument, to see whether it applies to the goods, which are the 
 subject of the action; and if they are not included in the con- 
 tract, the parol evidence would Le properly admitted. (5) So, 
 in an action for money lent, where the plaintiff proved, that he 
 had advanced the money to the defendant, who gave him a note •• 
 for the amount on unstamped paper, and the defence was, that 
 he had been induced to give the note in a state of intoxica- 
 tion, without having received any part of the money. Lord 
 Ellenborough C. J. held, that the note might be inspected by the 
 
 (1) Medges's case, 23 Ilowdl St. Tr. JIunn v. Godbold, 3 Bing. 294. 
 
 1344. (4) R. V. Pendleton, 15 East, 449, 
 
 (2) Scott V. Jones, 4 Taunt. 365. 455. 
 
 (3) Garnons v. Swift, 1 Taunt. 507. (5) 15 East, 465. 
 Waller v. Ilorsfnll, 1 Campb. 501.
 
 520 Of Siamjnng, [Cli. 9. 
 
 Unstamped j|,ry^ as a Contemporary writing, to prove or disprove the fraud 
 
 writing, for * , i • -n- / 1 \ 
 
 collateral pur- imputed tO lllC |)laint iff ( 1 ) . 
 poses. 
 
 Ill prosccii- A paper, |nnporling to be a bill of exchange or promissory 
 
 tions for for- . ..... .11 . i , 
 
 „gry note, may be given m evidence, tnougli unstamped, to support 
 
 an indictment for forgery, or for uttering with a knowledge of 
 the forgery; (2) for the stamp acts being revenue laws, and not 
 intended to affect the crime of forgery, cannot alter the law re 
 specting it; the stamp is not, properly speaking, any part of the 
 instrument, but merely a mark impressed on the paper, to denote 
 the payment of a duty, and is collateral to the instrument it- 
 self. (3) And if a person were to be sued for a penalty, for 
 having negotiated an instrument without a stamp, there is no 
 doubt but that the unstamped instrument nught be given in evi- 
 dence, notwithstanding the general prohibitory words of the 
 stamp acts. (4) 
 
 1. Pooley's But where the instrument is offered in evidence, as a valid 
 
 *^^^^' available legal instrument, and is not such from the want of a 
 
 stamp, it cannot be admitted, whether in a criminal or civil 
 suit. In the case of King v. Pooley (6) the prisoner was in- 
 dicted under the statute 7 G. 3. c. 50. s. 1., which makes it a 
 capital felony for any person, employed in receiving letters, to 
 secrete any letter containing a bank note, or any warrant, or 
 isi trial. draft, ^-c. for the payynent of money. It appeared at the trial, 
 
 that the draft, contained in the letter, which the prisoner had 
 secreted, was drawn above ten miles from the banking-house; 
 the prisoner's counsel then objected, that, as the draft was on 
 unstamped paper, it was not a valid draft for the payment of 
 money, and therefore not within the statute on which the pri- 
 soner was indicted; and they founded this objection on the 
 statute 3] G. 3. c. 25., the fourth section of which exempts 
 
 (1) Gregory v. Fraser, S Campb. 3 Barn. & Aid. 5S9. See Whitwell v. 
 454. Dimsdale, Peake, N. P. C. 168. 
 
 (2) Hawkeswood's case, 1783, 1 (3) See the judgment of Mr. Judge 
 Leach, Cr. C. 292., 2 East, P. C. Grose, who delivered the opinion of 
 955. S. C. Lee's case, 1784,1 Leach, the Judges in Reculist's case, 2 Leach, 
 Cr. C. 293, n. (a), Morton's case, Cr. C. 813. 
 
 1795, 2 East, P. C. 955. Reculist's (4) Ibid. 
 
 case, 179(5, 2 Leach, Cr. C. 811. (5) 3 Bos. & Pull. 311. Russ & 
 
 Davies's case, 1796, 2 East, P. C. 95(i. Ry. Cr. C. R. 12. S, C.
 
 Ch. 9.] as a Requisite of Written Instruments. 521 
 
 from stamps only such orders for tlie payment of money as are Unstamped 
 
 . ... •^ r II writing, for 
 
 drawn on a banker residing; within ten miles of the place where collateral 
 
 the order is made; and the nineteenth section provides that no P*^*"?"^^^- 
 
 bill, note, draft, &c. shall be pleaded or given in evidence in any 
 court, or admitted in any court to be good, useful, or available 
 in law or equity, unless they are written on paper duly stamped. 
 The evidence was admitted; the prisoner convicted: and the point 
 reserved. The case was afterwards argued before the Judges in 
 the Exchequer chamber; when the objection, taken on the part of 
 the prisoner, was, first, that which has been stated, namely, that 
 the draft in question was not a draft for the payment of money, 
 within the meaning of the stat. 7 G. 3. c. 50. s. 1.; and, secondly, 
 that the indictment, which averred, that//ie draft wasin force at the 
 time of the secreting., had not been proved, as from the want of a stamp 
 the draft had never been available. All the judges held that the 
 conviction was wrong ; on the ground that the draft, not being 
 stamped, was of no value and not available, and therefore not a 
 draft within the act. 
 
 The prisoner was afterwards tried on the second section of the 2d trial. 
 same act, which makes it a capital offence for any person to rob any 
 mail of a letter or packet, or to steal or take any letter from any mail^ 
 or from any place for the receipt of letters, &c. (1) It was objec- 
 ted at the second trial, that the draft, before mentioned, being on 
 unstamped paper, could not be received in evidence as a medium to 
 show that the prisoner had stolen the letter; but the Court over- 
 ruled the objection, being of opinion, that the draft, though un- 
 stamped, might be admitted in evidence for collateral purposes, 
 though not for the purpose of recovering the money mentioned in 
 it, and the evidence was accordingly received. Here the paper 
 was not offered in evidence, as it was on the former trial, as a draft 
 for the payment of money, but merely as a paper contained in the 
 letter, and the fact of the prisoner having this paper in his posses- 
 sion was evidence against him of his having stolen the letter in 
 which it was contained. 
 
 An objection, similar to that which was taken on the former ^' ^'"^on's 
 •' ' caso. 
 
 (1) 3 Bos. & Pull. 815. And this part of the case is reported in I East, PI. C, 
 addenda, xvii. 
 
 Vol. I. 66
 
 522 
 
 Of Stamping, 
 
 [Ch. 9. 
 
 Unsiamped trial in the last case, was again taken in the case of The King v. 
 collateral Gillson. (1) The indictment was for feloniously setting fire to a 
 
 purposes. certain house with intent to defraud an insurance company: at the 
 
 trial, a policy of insurance was given in evidence on the part of the 
 prosecution, by which the prisoner's goods, in a house there descri- 
 bed, were insured against fire, and upon this policy a memorandum 
 was indorsed, stating, that the goods insured had been removed 
 from the house described in the policy, to another house mentioned 
 in the memorandum, in which last-mentioned house the prisoner 
 was charged with having committed the felony. The policy was 
 properly stamped, but the memorandum had no stamp ; and the 
 objection taken for the prisoner was, that, in support of the charge, 
 it was essentially necessary'to show, there subsisted a legally effec- 
 tive contract^ and that, by the express provision of the stamp-acts, 
 the memorandum in question, not being stamped, could not be 
 given in evidence, or be good or available in any manner whatever; 
 and a distinction was drawn between this case and that above 
 mentioned, where an unstamped forged instrument was admitted 
 in evidence againstjhe party charged with having forged it, or with 
 uttering it knowing it to be forged. The point was reserved, and 
 argued in the Exchequer Chamber: and judgment was afterwards 
 given at the Old Bailey, that the prisoner should be discharged. 
 
 3. Hall's case. Qn a prosecution for embezzling notes, which the prisoner had 
 received as clerk for his employer, a written paper given by the 
 prisoner as a receipt of the notes in question, and purporting to be 
 such, is not admissible as a receipt, unless duly stamped. (2) 
 
 8umed "^when. "^ regular Stamp may be presumed in certain cases. If an 
 agreement is in the possession of a party to the suit, who re- 
 fuses to produce it after a notice, the other party may give in 
 evidence a copy of the agreement, without proving that the 
 In possession Original was duly stamped; the party who has the original in 
 of adverse j^jg possession may prove the negative. (3) If an instrument, 
 
 (1) 1 Taunt. 25. Russ. & Ry. Cr. C. (2) R. v. Hall, Ry. & Mo. Cr. C. R. 
 
 R. 138. S. C. Five Judges were for 67. 
 
 the reception of the evidence: six Judges (3) Crisp v. .Anderson, 1 Starkie, N. 
 
 contra. P. C. 35.
 
 Ch. 9.] as a Requisite of Written Instruments. 623 
 
 which ought to be stamped, is proved to have been lost, parol Lost instru- 
 evidence of its contents may be admitted without "proof of the ™°° ' 
 stamp being regular, where it can be presumed, from the circum- 
 stances of the case, that the instrument was duly stamped. (1) 
 In the latest case upon this point, on a question of settlement 
 between two parishes (2) it appeared, that an indenture of 
 apprenticeship, which had been regularly executed thirty years 
 before, was delivered to the apprentice at the end of the term, 
 and lost; that a premium had been paid with the apprentice; 
 and further, that the parish, in which he had served under the 
 indenture, had for many years treated him as one of their 
 parishioners; on the other side, it was proved by the deputy- 
 register and comptroller of the apprentice duties, that it did 
 not appear that such an indenture had been stamped with the 
 premium stamp, or enrolled, from the time of the date to the 
 time of the trial of the appeal; but the Court of King's Bench 
 were of opinion, that the Court below were right in presuming, 
 that the indenture had been properly stamped. " The question 
 before the Justices," said Lord Ellenborough, " was, whether 
 the presumption, that all was rightly done after thelapse^of so 
 many years, was sufticienily rebutted by the negative evidence 
 of the officer; they thought not, and we cannot say that 
 they have done wrong; for tlie presumption of law is to be 
 favored, and against the negative evidence they may have 
 set the possibility of an irregularity in the returns made to the 
 office." 
 
 If an action cannot be brought [upon an agreement, until it is Defect of 
 stamped, it must be stamped before the commencement of the cured.' 
 action: but if it is an agreement which may be stamped on 
 the payment of a penally, then it may be stamped during the 
 action. (3) In some cases the legislature has declared, that the 
 paper cannot be stamped after it has been written, as in stat. 
 35 G. 3. c. 63. s. 14. concerning sea-insurances (4,) and in 
 slat. 31 G. 3. c. 25. s. 19. concerning bills of exchange, pro- 
 
 (1) R. V. East Knoyle, Burr. set. v. Bishop ^ of Chester, 8 Mod. 365. 1 
 Case, 151. 1 Bott. 547. S. C. R. v. Stra. 624, S. C. 
 
 Badby, I Bott. 549. S. P. (4) Rodereck v. Hovil, 3 Campb. 
 
 (2) R. V. Long Buckby, 7 East, 45. 103. 
 
 (3) 9 Ves. 252. 11 Ves. 595. 11.
 
 524 
 
 Of Siomprng, 
 
 [Ch. 9. 
 
 Agreement, niissory notes, &c.* In other cases it is declared, that a penally 
 shall be incurred by writing on unstan)ped paper; and that the 
 instrument shall not be available in evidence, until the duty and 
 penalty are first paid, and a receipt for them produced, and 
 until the instrument is marked with a proper stamp. (1) Here 
 the defect may be cured by having a proper stamp affixed, which 
 may be done by jiaying the duty, together with the penalty for 
 not having the instrument stamped within the lime limited. (2) 
 In other cases the legislature only imposes a penalty for not 
 having the instrument duly stamped; and in these, though the 
 party would be liable to a penalty, yet the paper may be given 
 in evidence, though unstamped. (3) If the defendant has paid 
 money into court, in an action on a bill of exchange, (4) or has 
 by his plea admitted letters of administration (of which the 
 plaintiff, as administrator, made |)rofort) (5), he cannot object 
 to the stamp as insufficient. The payment of money in the 
 one case, and the plea in the other, admits the validity of the 
 instrument. 
 
 Agreements, 
 when to be 
 stamped. 
 
 The Stat. 48 O. 3. c. 149. (6), one of the principal acts relating 
 to stamp duties, enacts, that every agreement, minute, or memo- 
 randum of agreement, (not particularly exempted,) that is made 
 in England under hand only, or made in Scotland without any 
 clause of registration, is liable to a stamp in proportion to the 
 number of words contained, when the siubject-matter is of the 
 value of 20Z. or upwards, whether the same shall be only evi- 
 
 (1) St. 5 &. 6 VV. & M. c. 21. B. (4) Israel v. Benjamin, 3 Campb. 40. 
 11. 12 Ann. st. 2. c. 9. s. 25. St. 37. (5) Tliynne v. Protheroe, 2 Maule 
 G. 3. c. 136. s. 2. Hunt v. Stevens, 3 &, Selw. 553. 
 
 Taunt. 113. (6) See also St. 23 G. 3. c. 68. a. 
 
 (2) R. V. Bishop of Chester, 1 Stra. 3. St. 35 G. 3. c. 30. s. 1.6. St. 37 
 624. G. 3. c. 90. s. 1. 6. 55 G. 3. c. 184. 
 
 (3^ R.' V. Pearce, Peake. N. P. C. Sch. PartJ. 
 75. 
 
 * Although the stamp-act of the 48 G. 3. c. 149. does not in express terms 
 require, that the paper shall bo stamped before the bill or note is written, yet 
 as the 3d and 8th sections of this statute confirm and adopt all provisions 
 and regulations relating to former duties, the clause in the 19th section of the 
 31 G. 3. is still in force. The 34 G. 3. c. 32., which authorizes the commis- 
 sioners to stamp bills, &c. after they were drawn, on payment of a penalty, 
 was only a temporary act, and has expired. See Bayley on Bills, p. 24.
 
 Ch. 9.] as a Requisite of Written Instruments. 525 
 
 dence of a contract, or ^ligatory upon the parties from its being Agreement. 
 a written instrument. 
 
 In an action against a wharfinger or carrier for not delivering 
 goods, a receipt for the goods is admissible in evidence without 
 stamp, although the value of the goods may exceed 20/., the 
 wharfage or price of carriage being under that sum; for this, and 
 not the value of the goods is the matter of the agreement. (1) 
 
 A written paper, delivered by an auctioneer to a bidder, to whom 
 lands were let by auction, containing ihe description of the lands, 
 the term for which they were let to the bidder, and the rent paya- 
 ble, is not such a minute of the agreement as requires a stamp, 
 unless it is signed by some of the parties, or by the auctioneer: 
 nor is it such a writing as will exclude parol evidence (2); but if 
 signed by the auctioneer, and delivered to the bidder, it ought to be 
 stamped. (3) A contract of marriage may be proved by unstamp- 
 ed letters; the statute evidently applying to such matters only as 
 are the subject of pecuniary calculation. (4) 
 
 An agreement is to be stamped in proportion to the number 
 of words which it contains, not according to the number of 
 items agreed upon. But if the parties add another item to 
 an agreement which is already complete, and which has been 
 executed between them, an additional stamp ought to be an- 
 nexed, to make such new item available. As, if two persons 
 lay a wager, and write it down in the form of an agreement, 
 which is stamped, and afterwards by another agreement, in- 
 dorsed on the first, they consent that the bet shall be doubled; 
 here there ouglit to be two agreement-stamps, or the party 
 cannot recover on the last bet. (5) A written acknowledg- 
 
 (1) Chadvvick v. Sills, by Holioyd (3) Ramsbottom v. Mortley, 2 Manle 
 J.; and rule afterwards refused by K. & Selw. 44S. 
 
 B. Ry. & Mo. N. P. C. 15. Latham (4) Orford v. Cole, 2 Starkie, N. 
 
 V. Ruiley, by Lord Tenterden, Ry. & P. C. 351. 
 
 Mo. N. P. C. 13. (5) Robson v. Hall, Peake, N. P. 
 
 (2) Ramsbottom v. Toubridge, ,2 C. 127. Lord Kenyon is said to have 
 Maule & Selw. 434. Ingram v. Lea, been of opinion, that the plaintiff 
 2 Campb. 521. Adams v. Fairbain, 2 might recover on the original bet. 
 Starkie, N. P. C. 277. Drant v. But the plaintiff was nonsuited on an- 
 Brown, 3 Barn- & Cress. 665. Haw- other point. 
 
 kins V. Warre, 3 Barn. & Cress. 690.
 
 Of Stamping, 
 
 [Ch. 9. 
 
 ment of tlio payment of money stanij<fed as a receipt, is evi- 
 dence of the fact of payment, alihough there may be other 
 writing on the same paper amounting to an agreement, pro- 
 vided this does not in any manner control or qualify the former 
 part (1;) it is evidence also of the consideration on which 
 the money was paid, if the consideration is stated in the re- 
 ceipt. (2) 
 
 Cognovit. A cognovit, being a mere acknowledgment of an account with- 
 
 out any mutuality, does not require a stamp. But if there be 
 any thing of agreement beyond the mere authority to enter a 
 cognovit, then a stamp becomes necessary. Thus, where the 
 defendant gave a cognovit to the plaintifT on unstamped paper, 
 by which he agreed to confess, that the plaintiff had sustained 
 damage in the action to the amount of 30/., on which no judg- 
 ment was to be entered, unless the defendant made default in 
 payment of the sum of 5Z. by instalments, together with costs to 
 be taxed, the Court held, that, in consequence of the terms which 
 had been added, the paper in question amounted to an agreement; 
 but that it was an agreement for less than 20/., and therefore not 
 liable to a stamp. (3) 
 
 Exemptions. The following particulars are exempted from stamp-duties im- 
 
 posed on agreements. (4) 
 
 Memorandum 
 of insurance. 
 
 1. Any label or memorandum containing the heads of insur- 
 ances, to be made by the Royal Exchange Assurance and Lon- 
 don Assurance. 
 
 Agreement for 2. Memorandum or agreement for granting a lease or tack, 
 a lease. ^^ rack-rent, of any land or tenement, under the yearly rent of 
 
 5/. 
 
 Whether a particular agreement is to be considered as a lease, 
 (in which case it will require a lease-stamp) or merely as au 
 
 (1) Grey v. Smith, 1 Campb. 387. 
 
 (2) Watkins v. HewleU, 1 Brod. & 
 Bing. 1 
 
 (4) St. 4S G. 3. c. 149. See also 
 §|. 23 G. 3. c. 58. s. 8. St. 35 G. 3. 
 30. s. 1. 6. St. 37 G. 3, c. 90. 
 
 (3) Ames v. Hill, 2 Bos. & Pull. s. 1. 6. 55 G. 3. c. 184. Sch. Pait I. 
 150. Reardon v. Svvaby, 4 East, 188. p. 498. 560. 
 S. P.
 
 Ch. 9.] as a Requisite of fVritten Instruments. 527 
 
 agreement for a lease, must depend entirely on llie intention of Agreement, 
 the parties, as it is to be collected from the whole of the instru- 
 ment. (1) If the words are, that the one party does thereby 
 demise, &.c. or that the other party shall have, &c. and no other 
 words appear to qualify the expression, they are to be construed 
 as a lease. (2) And where the instrument appears to have been 
 intended to transfer a present interest, or where it contains words 
 of present demise, without any thing to show that the parties 
 bad in contemplation a mere executory contract, the instrument 
 will be considered as an actual lease, notwithstanding there may 
 be a stipulation for executing a subsequent lease under seal. (3) 
 J3ut, though there are words of present demise; yet if it may be 
 collected that a future lease was in contemplation, and necessary 
 for ascertaining the rights of the parties, the instrument is to be 
 considered an agreement, not a lease. (4) 
 
 3. Memorandum or agreement for the hire of any laborer, aril- Agreement for 
 - r • 1 ^ hire of servant, 
 ncer, manulaciurer, or menial servant. 
 
 An agreement for the assignment of an a[)prentice from one 
 master to another is not within the meaning of this clause; 
 the term " hiring" not being applicable to an apprentice. (5) 
 If such a written agreement is unstamped, it cannot be ad- 
 mitted in evidence, nor can parol evidence of the terras be re- 
 ceived. 
 
 4. iMeraorandum, letter, or agreement made for or relating to Agreement for 
 the sale cf any goods, wares, or merchandize. ^^'^ of goods. 
 
 Upon this clause it has been deterniined, that an agreement i. Meaning of 
 
 bv the defendant to take a share of some goods, which had been ^^^ vvords, /or 
 •' ° ^ or relating to. 
 
 (1) Morgan v. Bissell, 3 Taunt. 65. ling, 13 East, IS. Doe dem. Wallter v. 
 
 (2) Drake v. Munday, Cro. Car. Groves, 15 East, 244. 
 
 207 Maldon's case, Cro. El. 33. 5 (4) Morgan v. Bissell, 3 Taunt. 72. 
 
 T. II. 167. Doe dem. Jacksoa v. Ashburner, 5 
 
 (3) Harrington v. Wise, Cro. El. T. R. 163. Coore v. Claire, 2 T. R. 
 486. Tisdale v. Sir VV. Es.sex, Hob. 739. Doe dem. Broomfield v. Smith, 
 34. Baxter v. Brown, 2 Black. 973. 6 East, 530. 
 
 Barry v. Nugent, cited 5 T. R. 165, (5) R. v. St. Paul's, Bedford, 6 T. 
 167. Pool v. Bentley, 2 Campb. 286. R. 453. R. v. Ditchingham, 4 T. R, 
 12 East, 168, S. C. Tempest v. Ravv- 769.
 
 628 0/ Stamping, [Ch. 9. 
 
 Agreement. bought by tlie plaintirt" on iheir joint account, and to pay for 
 lliem at a certain time, is an agreement relating to the sale of 
 goods, and therefore exempted from a stamp duty (1;) so also is 
 an agreement by a broker to indemnify his principal, for whom 
 he bought goods, from any loss on a re-sale (2;) or a guarrantee 
 for the payment of goods, which a third person was about to 
 purchase to a certain amount (3;) or a receipt for the price of a 
 horse containing a warranty of soundness (4;) or an agreement 
 to cancel a former agreement respecting a sale of goods, and for 
 the future sale of goods upon different terms. (5) 
 
 A letter from a principal to his factor, containing bills of 
 exchange drawn upon the factor, and engaging to provide for 
 the bills, if certain goods in the factor's hands, or about to be 
 placed there, remained unsold when the bills should become 
 due, is not within the exception of the act, and requires a 
 stamp. (6) The Court held, that the description in the act is 
 confined to instruments which have the sale of goods for their 
 primary object, and that the primary object of the letter in ques- 
 tion was the obtaining of money upon a pledge of goods, intended 
 to be placed in the factor's hands. 
 
 2. Sale of An agreement for the making of machinery at a fixed price 
 
 made. was considered, in the case of Buxton v. Bedall (7,) to be not 
 
 within the exemption; on the ground, that it is not a contract 
 for, or relating to, the sale of goods, but relating to the making 
 of goods, and for work and labor to be done. (7) The lan- 
 guage of the exempting clause, " Memorandum or agreement 
 for, or relating to, the sale of any goods, wares, or merchan- 
 dize," is expressed in terms the most general and comprehen- 
 sive; and, perhaps, on reconsideration, may be thought to extend 
 to contracts relating to the sale of goods, which are to be made 
 
 (1) Venning v. Leckie, 13 East, 7. (6) Smith v. Cator, 2 Barn. & Aid. 
 
 (2) Curry v. Edensor, 3 T. R. 524. 778. 
 
 (3) Warrington v. Furbor, 8 East, (7) 3 East, 303, on sliowing cause 
 242. Watkins v. Vince, 2 Starkie, against a new trial. The only Judges 
 N. P- C. 369. present were Mr. Justice Lawrence, 
 
 (4) Skrine v. Elmore, 2 Campb. and Mr. Justice Grose ; and they de- 
 407. termined the point on the authority 
 
 (5) Whitworth v. Crockett, 2 Stark, of Towers v. Sir J. Osborne, a case 
 N. p. C. 431. on the statute of frauds. See this 
 
 case stated in ch. 8. sect. 1.
 
 Ch. 9.] as a Requisite of Written Instruments. 629 
 
 by the seller before iheir delivery, no less than to contracts for Agreement. 
 the sale of goods already made. It may be observed further, 
 that the true principle and ground of decision in the case of 
 Towers v. Sir J. Osborne (on the authority of which the case 
 of Buxton V. Bedal was determined) does not appear to be in- 
 consistent with such a construction. The court of King's Bench 
 there held, that a contract for a chariot, which a person had be- 
 spoke, was not a contract for the purchase of goods, but for the 
 making of something not in existence, and therefore not within 
 the 17th section of the statute of frauds; for that section speaks of 
 acceptance of part of the goods as one of the requisites to bind the 
 bargain, and is supposed therefore not to extend to those cases, in 
 which the subject-matter of the contract is incapable of delivery 
 and of part-acceptance. (1) But in the exempting clause of the 
 stamp-act, nothing is said relative to the delivery of the goods, nor 
 is there any reason for supposing, that the legislature intended to 
 make a distinction, with respect to stamping, between contracts 
 for the sale of goods ordered to be made, and contracts for such as 
 are already made. It constantly happens, that the subject-matter 
 is not at the time of the contract in the state in which it is to be 
 delivered; in some cases more is to be done than in others, but 
 still the contract appears to relate to the sale of goods, although 
 the goods may not be at the time of the purchase in a complete 
 state for delivery. And this is the construction which the Court 
 of Common Pleas has put upon the clause in question, in the late 
 case of Wilks v. Atkinson (2), in which it was determined, that a 
 contract for the purchase of a quantity of linseed oil was not liable 
 to a stamp, although the oil had not been made, but was to be 
 prepared out of raw materials in the seller's possession. 
 
 An agreement for the sale of crops growing on certain lands, to ^ Sale of 
 • IT , r • 1 growing crops- 
 
 be delivered afterwards, has been determined to be an agree- 
 ment for an interest in land, and is therefore not exempted as a 
 sale for goods. (3) In the case of Waddington v. Bristow, Mr. 
 
 (1) See Groves v. Buck, 3 Maule ley C. J. and Chambre J- in Wadding- 
 & Selw. 179. ton v. Bristow, 2 Bos. & Pull. 454. 
 
 (2) 6 Taunt. 11. 1 Marshall, 412. (3) Waddington v. Bristow, 2 Boa. 
 And see the opinions, of Lord Alvan- & Pull. 453. Crosby v. Wad«worth, 
 
 Vol. I. 67 
 
 6 East, 602.
 
 530 Of Stampingy ^c. [Ch. 9. 
 
 Agreement. Justice Chambre said, " Though I admit that a contract for the 
 sale of so many hops as twenty-two acres might produce, to b« 
 delivered at a distant day, might fall within the exemption of the 
 act, notwithstanding the hops were not in the state of goods at 
 the time of the contract made, yet I cannot think the present 
 agreement within the exemption, since it gives an interest to the 
 vendee in the produce of the vendor's land." But, in a late case, 
 where a verbal contract was made for the sale of a then growing 
 crop of potatoes, the Court of King's Bench held, that whenever a 
 contract is for the produce of a given quantity of land, and is a 
 contract to render what will afterwards become a chattel, it is not 
 a contract within the meaning of the fourth section of the statute 
 of frauds, although sooie advantage may accrue to the vendee by 
 the subject of the sale remaining in the land : and they distin- 
 guished the case from the before mentioned decision in Crosby r. 
 Wadsworth on the ground, that there an exclusive right was con- 
 tracted for the growing surface of the land.(l) 
 
 Agreement for g^ Memorandum or agreement, made between the master and 
 ■eamen's wa- . o ' 
 
 gee. marmers ol any ship or vessel tor wages, on any voyage coast- 
 
 wise from port to port in Great Britain. 
 
 Letter con- q Letters containing any agreement (not before exempted) in 
 
 taming agree- , j- • , c u . 
 
 ment. respect oi any merchandise, or evidence ot such an agreement, 
 
 which shall pass by the post, between merchants and other per- 
 sons carrying on trade or commerce in Great Britain, and residing 
 and actually being at the time of sending such letters at the dis- 
 tance of 50 miles from each other. (2) 
 
 A letter written by one, who managed another person's trade, 
 to a creditor, promising to pay a debt which arose in the regular 
 course, has been held to come within the letter and spirit of this 
 exemption. (3) 
 
 (1) Evans v. Roberta, 5 Barn. & (2) Leigh v. Banner, 1 Esp. N. P. 
 
 Cress. 829. And see Parker v. Stani- C. 403. Stat. 32. G. 3- c. 51. 
 
 land, 11 East, 362. Warwick v. (3) M'Kenzie v. Banks, 5. T. R. 
 
 Brace, 2 Maule & Selw. 205. 176.
 
 Ch. I O.J Of the Admissibilittj of Parol Evidence. 531 
 
 CHAP. X. 
 
 Of the ^dinissibility of Parol Evidence to explain, vary or dis- 
 charge Written Instruments. 
 
 The order in which it is proposed to treat of this intricate and 
 extensive subject, is, First, to consider in what cases parol 
 evidence is admissible to explain ambiguities in written instru- 
 ments; Secondly, whether parol evidence is admissible to add to, 
 vary, or discharge written instruments; and, Thirdly, to consider 
 the rule of evidence on this subject, established in courts of equity. 
 
 Sect. I. 
 
 Of the Admissibility of Parol Evidence to explain Ambiguities. 
 
 The first section treats of Ambiguities, latent and patent, and of 
 the admissibility of evidence of usage as explanatory of ancient 
 grants and deeds. 
 
 There are two sorts of ambiguities of words, says Lord Bacon Auibigujtiet. 
 (I) ; the one is called ambiguitas latens, the other ambiguitas patens. 
 The first occurs, where the deed or instrument is sufficiently cer- 
 tain and free from ambiguity, but the ambiguity is produced by ev- 
 idence of something extrinsic, or some collateral matter out of the 
 instrument; the latter kind is such as appears on the face of the 
 instrument itself. (/) 
 
 First, with respect to latent ambiguities. 
 
 A latent ambiguity, which is raised by extrinsic evidence, may Latent 
 be explained in the same manner. Thus, if a person grant his a«i"'o^'^y' 
 manor of S. to one and his heirs, so far there appears to be no 
 ambiguity; but if it should be proved, that the grantor has the 
 manors both of South S. and North S., this ambiguity is matter 
 
 (1) Bac. Elem. rule 23. 
 (Z) See Note, 938, p. 1358.
 
 632 0/ the Admissibility of Parol Evidence, [Cli. 10. 
 
 Latent J,, fact, and parol evidencejniay be adiiiiiied to show which of the 
 
 ambiguity. , • 'i , , ■, ■. c ■ i i 
 
 ' two manors the party intended to convey. (1) oo, it was resolved 
 
 in Lord^Cheyney'scase (2), if a person has two sons both baptized 
 by the name of John, and conceiving that the elder, who had been 
 long absent, is dead, devises his land by his will in writing to his 
 son generally, and in truth the elder is living; in this case the 
 younger son may in pleading or in evidence allege the devise to 
 him, and if it is denied, he may produce witnesses to prove his fa- 
 ther's intent, that he thought the other was dead; or that, at the 
 time of making his will, he named his son John the younger, and 
 that the writer left out the addition. No inconvenience, adds Lord 
 Coke, can arise, if an averment be taken in such a case ; for he 
 who sees the will, by which land is so devised, cannot be deceived 
 by any secret averment : when he sees^the devise to the testator's 
 son John, generally, he ought at his peril to enquire, which son the 
 testator intended, which may easily be known by him who wrote 
 the will, and by others who were privy to the intent; and, if no 
 direct proof can be made of his intent, there the devise is void for 
 its uncertainty, (m) 
 
 Mistako in When a devise in a will is to a person, designated by a 
 
 name. Christian and surname without any other description, and no 
 
 such person appears to claim the legacy, or to have been known 
 by the testator, parol evidence may be admitted to show, that 
 both the names have been^ mistaken by the person, who took 
 the instructions for the will; as, in the case of Beaumont v. Fell, 
 (3), where a legacy was bequeathed to Catharine Earnley, and 
 the name of the person who claimed the legacy was Gertrude 
 Yardly, the Court established the claim, observing how very 
 material it was, that no such person as Catharine Earnley 
 
 (1) Bac. Eiem. rule 23. dein. Bulkeley v. Wilford, Ry. & Mo. 
 
 (2) 5 Rep. 63, b. For other ex- N. P. C. S8. 
 
 amples of patent ambiguities, see Alt- (3) 2 P. VVnis. 140. See also Dow- 
 ham's case, 8 Rep. 155. Hob. .32 set v. Sweet, Ambl. 175. Bradwin v. 
 Jones V. Newman. 1 Blackst. 60. Harpur, Ambl. 374. Parsons v. Par- 
 Harris V. Bp. of Lincoln, 2 P. Wms. sons, 1 Ves. jun. 266. 3 Ves. 322. 
 136. Careless v. Careless, 1 Merri- Smith v. Coney, 6 Ves. 42. Doe dem. 
 vale, 384. Doe dem. Westlake v. Cook v. Danvers, 7 East, 303. Doe 
 VVestlake, 4 Barn. & Aid. 57. Doe dem. Chevalier v- Huthwaite, 3 Barn. 
 
 & Aid. 632. 
 
 (m) Sea Note 939, p. 1362.
 
 Sect, l.j To explain Written Instruments. 533 
 
 claimed under the will. Here, there was no ambiguity on the face Latent 
 
 . . ambiguity, 
 of the will, but the latent ambiguity was introduced by extrinsic 
 
 evidence, and the same kind of evidence also showed, that there 
 was a person of the name of Gertrude, whom the testator called 
 Gatty, which name the person, who drew the will, mistd'Bk for 
 Katly; in this case, therefore, as parol evidence was admitted to 
 show the latent ambiguity, parol evidence was also admitted to ex- 
 plain it.(n) So, where the testator bequeathed his stock in a par- 
 ticular fund, and it appeared that he had not, at the time of making 
 his will or afterwards, any stock in that fund, having sold out some 
 time before, and purchased into another fund, evidence was admit- 
 ted to show, whence the mistake arose, and the legacy was satis- 
 fied out of the new fund, into which the testator had purchased. 
 (1) (o) So, where the devise was " of a/Z my farm and lands, 
 called Trogues-farm, now in the occupation of Jl. C," the Court 
 of King's Bench were clearly of opinion, that two closes in the 
 occupation of L. JIf., but forming a part of Trogues-farm, would 
 pass under the devise; and that a written notice from the testator 
 to L. M. had been properly admitted in evidence, to show that 
 he considered them as parcel of his farm called Trogues farm. (2) 
 Here the devise was sufficiently comprehensive to include the 
 whole of the lands, and ought not to be narrowed by the defective 
 description of the occupation. ( p) 
 
 In the instances which have been just mentioned, it is to be ob- Evidence, to 
 served, that, unless the evidence had been admitted, the will ^yjn 
 could not have taken effect, (q) In the first case, no person was 
 to be found corresponding with the description in the devise; in 
 the second, the testator had no property in the funds, out of 
 which he appointed the legacy to be paid; and in the third, if 
 the closes in question were not to be included as part of the 
 devised farm, the word "all" in the devise would not be 
 satisfied. And the question on the admissibility of parol evi- 
 dence, in such cases, will depend principally upon this, namely, 
 
 (1) Selwood V. Mildmay, 3 Ves. Southern, 1 Maule & Selw. 299. Doe 
 306. See 4 Ves. 676. 1 Bro. Ch. C. dem. Beach, v. Lord Jersey, 1 Barn. 
 472, Andrews v. Dobson, 1 Cox Ch. & Aid. 550. Doe dem. Harris v. 
 C. 425. Greathed, 8 East, 103. 
 
 (2) Goodtitle dem. Radford v. 
 
 (n) See Note 940, p. 1368. (o) See Note 941, p. 1376. (p) Seo Note 942, 
 p. 1376. iq) See Note 943, p. 1382.
 
 534 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 Latent whether tho evidence is necessary to givo an eflective operation to 
 
 nmbigniiy. ^^^ devise, or whether, without that evidence, there appears to be 
 sufficient to satisfy the terms of tl)e devise, and the intention of tha 
 testator as expressed on the face of the will. If the testator has 
 left property, which^^corresponds with the description in the will, 
 extrinsic evidence is5not admissible to show, that he intended lo 
 include other|property not within that description. (1) (r) 
 
 inc^to'^thf"' I" ^he case of Whitbread v. May (2), where the testator having 
 ettaU. devised all his estates in trust for his son for life wiih remainder 
 
 over in strict settlement, &,c., by a codicil afterwards revoked his 
 will "so far as it related to his estate at Lushill, in the county of 
 Wilts, and Hearne and Buckland, in the county of Kent, which 
 he devised to his son in fee," it appeared, that, at the lime of the 
 devise, the testator had lands in the parish of Hearne and in sever- 
 al other parishes, all which he had purchased by one contract from 
 one person; evidence was then offered to show, that the testator, 
 by the description of his " estate at Ilearne,^^ meant to designate 
 and include not only the lands in that parish, but also all the other 
 lands'which he had purchased at the same time. This evidence 
 was received at the trial, subject to the opinion of the Court above; 
 and the Court of Common Pleas were afterwards equally divided 
 in opinion on the question of its admissibility. 
 
 In a much later case, however, the case of Doe on the demise 
 of Sir A. Chichester v. Oxenden,(3) which was very similar to 
 the last, the Court of Common Pleas adjudged such evidence to 
 be inadmissible. The question there was, whether on a devise 
 -of the testator's " estate of Ashton,^^ parol evidence could be 
 admitted to show, that the testator intended by that description 
 to devise all his maternal estate, which consisted of two manors 
 in the parish of Ashton, and another manor in the adjoining 
 parish ; the Court of Common Pleas, after hearing two argu- 
 
 (1) Doe dem- Brown v. Brown, 11 (2) 2 Bos. & Pull. 593. 
 
 East, 441. Doe v. Oxenden, 3 Taunt. (3) 3 Taunt. 147. Doe dem. Brown 
 
 147. Doe dem. Tyrrell v. Lyford, 4 v. Greening, 3 Maule & Selw. 171. 
 
 Maule & Selw. 550. Tytler v. Dal- Beaumont v. Field, 1 Barn. & Aid. 
 
 ryraple, 2 Merivale, 419. 247. 
 
 (?) See Note 944, p. 1382.
 
 Sect. 1.] To explain Written Instruments. 535 
 
 ments, determined against its admissibility. The Chief Justice, Latent 
 
 Sir James Mansfield, in delivering the judgment of the court, after '■ — 
 
 premising that he had felt considerable doubts on the subject in 
 consequence of the case of Whitbread v. May, in which c^se the 
 Court was equally divided on the admissibility of parol evidence, 
 adverted to the case of Beaumont v. Fell(l), and to the similar 
 case of Dowset v. Sweet(2), and observed on these cases, that al- 
 though it was not expressly stated to have been necessary to re- 
 ceive the evidence in order to give effect to the will, yet that 
 ground of determination might be inferred. "It will be found," 
 said the Chief Justice, " that the will would have had no opera- 
 tion, unless the evidence had been received. But, in the case 
 now before the Court, the will has an effective operation without 
 the evidence proposed; every thing will pass under it, that is, in 
 the manor or parish, or what he would naturally call his Ashton 
 estate. This will be an effective operation ; and, this being so, 
 the case in this respect differs from all the others ; because in 
 them the evidence was admitted to explain that which, without 
 such explanation, could have had no operation. It is safer not to 
 go beyond this line. Only those premises, therefore, will pass 
 under the devise, which are in the manor or parish of Ashton. 
 
 Soon after this decision of the Court of Common Pleas, the de- 
 visee brought an action of ejectment against the heir at law 
 and offered at the trial the evidence before mentioned; on the 
 rejection of which, a bill of exceptions was tendered; and the 
 case was brought up to the House of Lords on a writ of error. (3) 
 The question on the admissibility of the evidence was referred to 
 the Judges; and Lord Chief Justice Gibbs delivered their unan- 
 imous opinion, that the evidence ought not to be admitted. 
 *' The courts of law," said the Chief Justice, " have been jealous 
 of the admission of extrinsic evidence to explain the intention 
 of a testator; and I know only of one case, in which it is per- 
 mitted, that is, where an ambiguity is introduced by extrinsic 
 circumstances. There, from the necessity of the case, extrinsic 
 evidence is admitted to explain the ambiguity; for example, 
 
 (1) Vide supra, p. 632. (3) Doe detn. Oxenden v. Sir A. 
 
 (2) Ambl. 671. Chichester, 4 Dow. 66.
 
 636 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 Latent where a testator devises his estate of Blackacre, and has two es- 
 
 ambign itj. ^^^^^ called Blackacre, evidence must be admitted to show, which 
 
 of the Blackacres is meant; or, if one devises to his son John 
 Thomas, and he has two sons of the name of John Thomas, evi- 
 dence must be received to siiow, which of them the testator intend- 
 ed. And so, also, if one devises to his nephew William Smith, 
 and has no nephew answering the description in all respects, evi- 
 dence must be admitted to show, which nephew the testator meant, 
 by a description not strictly applying to any nephew. The ambi- 
 guity there arises from an extrinsic fact or circumstance, and the 
 admission of evidence to explain the ambiguity, is necessary to 
 give eflect to the will; and it is only in such a case that extrinsic 
 evidence can be received. It is of great importance, that the ad- 
 mission of such extrinsic evidence should be avoided, where it can 
 be done, that a purchaser or an heir at law may be able to judge, 
 from the instrument itself, what lands are or are not affected by it. 
 Here the devise is of all the devisor's estate at Ashton (for there is 
 no difference between the words " estate of Ashton" and " estate 
 at Ashton"), and he has an estate at Ashton, which satisfies the 
 description. It is true, he has other lands, which come to him 
 along with his estate of Ashton; but they are not therefore com- 
 prised in the w^ords " my estate of Ashton." If a testator should 
 devise his lands of or in Devonshire or Somersetshire, it would be 
 impossible to say, that you ought to receive evidence, that his in- 
 tention was to devise lands out of these counties; and for the same 
 reason, when the testator here describes the lands as his estate of 
 Ashton, you cannot receive extrinsic evidence to extend this to 
 other lands not of Ashton. "(s) 
 
 devisee. 
 
 „ „,. , . In the case of Thomas v. Thomas(l), where the testator had 
 
 2. With refer- v / ' 
 
 ence to the devised to his grand-daughter Mary Thomas, of Llechlloyd, in 
 
 Merthyr parish, it appeared, that, at the time of his death, he had 
 a grand-daughter of the name of Elinor Evans, one of the lessors 
 of the plaintiff, who lived in the place and parish named in the 
 will, and also a great-grand-daughter, Mary Thomas, the defend- 
 ant, the only person of that name in the family, but who lived 
 
 (1) 6 T. R. 671. And see Lord Walpole v. Lord Cholmondeley, 7 T. R. 138. 
 
 (s) See Note 945, p. 1383,
 
 Sect. 1.] To explain Written Instruments. 537 
 
 in another place, and had never been in Merthyr parish; the plain- I-atent 
 
 1 • I ambiguity, 
 tin's counsel at the trial oliered parol evidence to show, that the 
 
 person who drew the will, had made a mistake in the name of the 
 devisee; and Islv. Justice Lawrence received the evidence(l), sub- 
 ject to the opinion of the court above on its admissibility; but as 
 the jury were of opinion, that the name had not been inserted by 
 mistake, and therefore found for the defendant on the first count, 
 which laid the demise from Elinor Evans, the admissibility of this 
 evidence did not afterwards form any part of the argument. Af- 
 ter this finding of the jury, the question was between Mary Thomas 
 and the plaintiff on a demise from the heir at law, and in this stags 
 of the cause the defendant's counsel offered evidence of declara- 
 tions made by the devisor previous to the making of his will, ex- 
 pressive of his regard for the plaintiff', and of his intention of giving 
 her the premises in dispute. But this evidence was rejected, on 
 the ground, that nothing dehors the will could be received, to show 
 the intention of the testator (which could only be collected from 
 the words of the will itself), after the removal of any latent ambi- 
 guity in the description of persons or other terms in the will. And 
 this opinion was afterwards affirmed by the Court of King's Bench. 
 " If there had been no person," said Lord Kenyon, " to answer the 
 description of grand-daughter, living at Llechlloyd, in Merthyr 
 parish, I should have rejected the description, and have said, tliat 
 the devise applied to Mary Thomas; but it appears that there is 
 another person answering that part of the description, who is also 
 in another part of the will an object of the testator's bounty. 
 Then, as there are two parts of the description not answering to 
 Mary Thomas, who is named in this clause of the will, we are left 
 to conjecture who was meant by the devisor; but the law will not 
 allow an heir at law to be disinherited by conjecture. And with re- 
 gard to the other question respecting the rejection of evidence," 
 added Lord Kenyon, " it was properly rejected; the supposed dec- 
 larations having been made by the testator long before the will was 
 made: but had they been made at the time of making tlie will, 
 I should have thought them admissible evidence." [t) 
 
 (1) See 8 Vin. Ab. 312, pi. 29; and Hampsiiire v. Pierce, 2 Ves. 216, cited 
 by Lawrence, J., 6 T. R. 678, 
 
 (<) See Note 946, p. 1383. 
 Vol. I. 68
 
 538 
 
 Patent 
 ambiguity. 
 
 Patent 
 ambiguity. 
 
 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 Secondly, with respect to patent ambiguities. 
 
 If a clause in a deed, or will, or any other instrnment, is so am- 
 biguously or defectively expressed, that a court of law, which has 
 to put a construction on the instrument, is unable to collect the m- 
 lention of the parly, evidence of the declaration of the party cannot 
 be admitted to explain his intention; but the clause will be void on 
 account of its uncertainty. In many cases an apparent uncertain- 
 ty may be removed by collecting the general intention from other 
 passages in the writing, so as to make the whole consistent: or by 
 a reference to some event, or some other writing, or some medium 
 of explanation, adverted to in the instrument. But when, after 
 comparing the several parts of a written instrument, and collecting 
 all the lights which the writing itself supplies, the intention of the 
 parties still appears to be uncertain, parol evidence of their inten- 
 tion is not admissible. " Ambiguilas patens," says Lord Bacon 
 (1), (that is, an ambiguity apparent on the deed or instrument) 
 *' cannot be helped by averment ; and the reason is, because the 
 law will not couple and mingle matter of specialty, which is of 
 the higher account, with matter of averment, which is of inferior 
 account in law; for that were to make all deeds hollow, and sub- 
 ject to averment, and so in effect to make that pass without deed, 
 which the law appoints shall not pass but by deed. It holds gene- 
 rally," he adds, " that all ambiguity of words within the deed, and 
 not out of the deed, may be helped by construction, or in some 
 cases by election, (it) but never by averment; but rather shall 
 make the deed void for uncertainty. "(v) 
 
 Uncertainty 
 in devise. 
 
 And in the case of a will, if any devise is exf)ressed doubtfully 
 and with uncertainty, the only construction which it is capable of 
 receiving, is by cotiiparing it with the other ))arts of the will; 
 the declarations of the testator are not admissible to remove the 
 apparent ambiguity, or to explain his intention. As, for ex- 
 ample, if the devise is to " one of the sons of J. S." who has 
 several sons, such an uncertainty in the description of the de- 
 
 (1) Bac. Elem. rule 23. Doe dem 5.50. Lord Cholmondeley v. Lord 
 Tyrrell v. Lyford, 4 Maule & Selw Clinton, 2 Merivale, 343. 
 
 (u) See Note 947, p. 1383. (v) Sec iNote 948, p. 1383.
 
 Seel. 1.] To explain Wr'uten Instruments. 539 
 
 visee cannot be exijlained by parol proof. f I) (w) So in a case. Patent 
 
 1 I I ,• • • •,-.,. . ambiguity. 
 Vvhere the testator made dispositions ni liis will to several persons, 
 
 among others to his wife and niece, who were the only women 
 mentioned in the will, and then devised " to her" a particular estate 
 for life, the question was, whether parol evidence could be admit- 
 ted, to show which of the two was intended : the Lord Chancellor 
 refused to receive it, on the ground, tliat it would tend to put it in 
 the jiow^er of witneses to make wills for testators ; the Court held, 
 that though the term '' her" was relative, it was to be referred in 
 this case to the wife, because in otlier parts of the will it seemed 
 10 relate to the wife ; but expressly excluded the parol evidence 
 offered to explain the will. (2) 
 
 A blank in a will, for the devisee's name, is an instance ofap- Omission of 
 parent ambiguity, and parol evidence cannot be admitted to """^® "^ ^'*''"* 
 show, what person's name the testator intended to insert. (3) 
 But on a bequest to a person, whose surname was mentioned 
 with a blank left for the Christian name, the party, who claimed 
 the legacy, was allowed, not only to prove acts of kindness and 
 constant affection on the part of the deceased, but to show fur- 
 ther, that the testator had said, ''he would provide for him, and 
 that he had left him something by his will. "(4) And in another 
 case, where only one initial appeared in the will, the bequest 
 being " to Mrs. G.," without any other description, the Chan- 
 cellor referred it to the Master to receive evidence, to show who 
 was the person intended to be described by thai initial. (5) The 
 distinction between tliese cases is, that in tiie former there is no 
 description whatever of a devisee, and whether the testator had 
 selected any person, as the object of his devise, is entirely uncer- 
 tain on the face of the will ; but in the last two cases, the testrtor 
 has given some description, and though it would appear too 
 slight and general for the iulbrmation of strangers, yet to persons 
 well acquainted with the tesuiior it might be sufficiently full and 
 distinct : in the first of these two cases the testator might not 
 have known the Christian name; in tha other, the description 
 
 (1) 2 Vern •'624. 8 Hep. 155. a. Atk. 257. Hunt v. Hart, 3 Bro. Ch. 
 
 (2) Caslletonv. Turner; cited 2 C. 311. 
 
 Ves. 217. (4) Price v. Page, 4 Ves. 680. 
 
 (3) Bayiis v. The Attorney-general, (5) Abbott v. Massie, 3 Ves. 148. 
 2 Atk. 239. Castleton v. Turner, 3 Andrews v, Dobson, 1 Cox Cas. 425. 
 
 (w) See Note 949. p. 1394.
 
 540 Of the Admissibility of Parol Evidence ^ [Ch. 10. 
 
 Patent in the will might have been iho only one by which the testator 
 
 ambiguity. i i • i i • 
 
 used to designate the claimant. 
 
 written instru- When a blank is left in a written agroenieut, which need not 
 ments. have been reduced into writing, and would have been equally bind- 
 
 ing, whether written or unwritten, (as if the agreement were to 
 deliver goods to the amount of less than ten pounds, and a blank 
 were left for the quantity of goods to be delivered,) in such a case, 
 it is presumed, in an action for the non-performance of the contract 
 parol evidence might be admitted, to show the quantity for which 
 the parlies agreed; for a memorandum in writing is not required 
 in this case by the statute of frauds, and the proposed evidence 
 would not contradict any part of the written agreement, but merely 
 supply an omission, where nothing need have been expressed. (a;) 
 And where a written instrument, which was made professedly to 
 record a fact, is produced as evidence of that fact, which it purports 
 to record, and a blank appears in a material part, the omission may 
 be supplied by other proof. Thus, if a bishop's register were to be 
 produced in evidence for the purpose of showing a presentation by 
 a patron, under whom the plaintiff claims, and on the production 
 of the register, a blank should appear in the place, where the pat- 
 ron's name is usually inserted, the presentation might be proved in 
 some other way;(l) as by a witness who was present, and heard 
 the presentation. So, in the case of a surrender of a copyhold by 
 a steward, if there is any mistake in the entry, that is only 
 matter of fact, and the courts of law will in that case admit 
 an averment, that there was a mistake either as to the lands 
 or uses. (2) {y) 
 
 Thirdly, as to the admissibility of evidence of usage, to explain 
 Ullage, to ex- ancient charters and grants. 
 
 plain ancient j^, jj^g construction of written instruments, vv^ords are to be un- 
 grants, &c. derstood according to their common and general acceptation 
 at the time when the instrument was made, (3) and with refer- 
 ence to the nature of the subject, [z) If the language in ancient 
 
 (1) Bishop of Jlealh V. Lord Beltield, (3) Vaugh. Rep. 169. Com. Dig 
 IWils. 215. lit. Paiol3(A.) 
 
 (2) Towers v. Moor, 2 Vern. 98. 
 
 (x) See Note 050, p. 1394. {y) See Note 951, p. 1395. (s) See Note 952, p. 1395.
 
 Sect. 1.] To explain Written Instruments. 541 
 
 charters is become obscure from its antiquity, or the construction is 
 doubtful, the constant and immemorial usage under the instrument 
 may be resorted to for the purpose of explanation, (1) though it can 
 never be admitted to control or contradict the express provisions of 
 the instrument. Such continued usage is a strong practical expo- 
 sition of the meaning of the parties. And modern usage, of forty 
 or fifty years duration, is evidence not only for that period, but ev- 
 idence from which it may be presumed, if nothing is shown to the 
 contrary, that the same course was pursued in earlier limes. (2) 
 Even in the case of an act of parliament, universal usage has been 
 referred to as a proper expositor, where the language is doubt- 
 ful. (3) (a) Lord Coke, in commenting on the statute of Glouces- 
 ter, says, that when any claimed before the justices in eyre any 
 franchises by ancient charter, if the words were general, and a 
 continual possession was pleaded of the franchises claimed, or if 
 the claim was by old and obscure words, and the party in pleading 
 expounded them to the court, and averred continual possession 
 according to that exposition, the entry was ever, inquirator super 
 possessionem etusum; " and this," adds Lord Coke, " I have obser- 
 ved in divers records of those eyres, agreeably to that old rule, 
 oplimus interpres rerum tises.(4) And the uniform course of 
 modern authorities fully establishes the rule, that, however gen- 
 eral the words of ancient grants may be, they are to be con- 
 strued by evidence of the manner, in which the thing has been 
 always possessed and used. (5) Thus, on an information to set 
 aside an election to a perpetual curacy, it appeared, that the 
 impropriate rectory, out of which the curacy arose, had been 
 granted in trust for the use of the parishioners and inhabitants 
 of a parish for ever: on the part of the relators it was insisted, 
 that the right of nomination to the vicarage ought to be confined 
 to inhabitants paying scot and lot, or to persons paying to church 
 
 (1) R. V. Varlo, Cowp. 248. Gape v. London v. Long, 1 Campb. 22. Chad 
 
 Handley, 3 T. R. 288, n. R. v. Bell- v. Tilsed, 2 Brod. & Bing. 406. 
 
 ringer, 4 T. R. 810. R. v. Osbournc, (2) By Richardson, J. 2 Brod. & 
 
 4 East, 333. Bailiff, &c. of Tewkes- Bing, 409. 
 
 bury, V. Bricknell, 2 Taunt. 120. R. (3) Sheppard v. Gosnold, Vaugh. 
 
 V. Mayor of St. Alban's, 12 East., 550. 169; and see R. v. Scott, 3 T. R. 104. 
 
 R. V. Mayor.Sic. of Stratford-upon-Avou, (4) 2 Inst. 282. 
 
 14 East, 348. R. v. Mayor, &c. of Ches- (5) Weld v. Hornby, 7 East, 199. 
 
 ter, 1 Maule & Selw. 101. Mayor of R. t. Osbourne, 4 East, 327. 
 
 (a) See Note 953, p. 1395.
 
 542 Of the Admissibililij of Parol Evidence, [Ch. 10. 
 
 and poor; and on the part of the defendants, that it extended 
 to all house-keepers in general; Lord Hardwicke, in delivering 
 liis judgment, said, " that some sort of limitation was allowed 
 by both sides to have been jjut by usage on the liberality of the 
 grant, and that in the construction of ancient grants and deeds 
 there is no better way of construing them, than by usage; and 
 contemporanea exposilio is the best way to go by;" and since 
 in this case there was evidence of house-keepers having con- 
 stantly voted, Lord Hardwicke held, that this usage ought to 
 prevail. (1) 
 
 Nor does it make any difference with respect to the adinis- 
 sibility of evidence of immemorial usage, for the purpose of 
 explaining and construing ancient instruments, whether the in- 
 strument be a charter granted by the crown, or merely a private 
 deed. Thus, in the case of Withnell v. Gartham,(2) where 
 the question was on the construction of an ancient deed, granting 
 to the minister and churchwardens of a parish the power of 
 appointing a schoolmaster, whether all the churchwardens must 
 concur, or whether the act of the majority was sufficient, and 
 the jury found the usage to be in favor of the appointment by 
 a majority, Lord Kenyon, in speaking of the usage, and ad- 
 verting to an argument which had been insisted on, (namely, 
 that the Court ought to reject tlie evidence of usage, because 
 the instances proved were not as ancient as the deed, and also 
 because usage cannot be let in to explain a private deed,) said, 
 that if the first reason were sufficient to reject the usage, it 
 would be difficult to know, how far such an objection might 
 extend. In many cases a party undertakes to j)rove a custom 
 from the time of legal memory; but that proof is generally 
 established by evidence of fiicts done at a much later period. 
 And as to the second objection, Lord Kenyon said, there was 
 no difference in that respect between a private deed and a king's 
 charter; in both cases evidence of usage might be given to ex- 
 pound them. 
 
 (1) The Attorney-geneeal V. Parker general v. Forstev, 10 Ves. 335. 
 and others, 3 Atk. 576. The Attorney- (2) 6 T. R. 388.
 
 Sect. 1.] To explain Written Instruments, 04"3 
 
 Thus, also, in a late case,(l) in an action for entering the 
 plaintiff' 's close, where the defendant pleaded, that the close was 
 copyhold, and justified under a grant from the lord and by a com- 
 mand of the copyholder; in support of this plea the defendant 
 proved, that the person, under whom he justified, and all those 
 whose estate he had, for a long course of years, had constantly 
 taken the forecrop of grass and pasturage from the close, and then, 
 by court rolls of the manor, proved admissions to a copyhold tene- 
 ment " of three acres of meadow," (which was admitted to be the 
 close in question) but every other benefit of the land, except the 
 forecrop, had been enjoyed by those from whom the plaintiff 
 claimed. Mr. Justice Heath, who tried the cause, wss of opinion, 
 '' that, although the terms of the surrender and admission were 
 sufficiently comprehensive to pass the soil and freehold, yet, as in 
 ancient grants the legal import might be restrained by long and 
 concomitant usage, which might be taken as evidence of the ori- 
 ginal intent of the parties in making the grant, so here the grant 
 might be restrained by the received usage, and only pass the fore- 
 crop, which would not carry the soil."" And the Court of King's 
 Bench agreed in this construction of the written evidence. The 
 terms of the admissions, they thought, were not incompatible with 
 the plaintiff's right, and might receive a construction conformable 
 to the usage. (6} 
 
 Courts of lav.', as well as courts of equity, will admit evl- Evidence ns to 
 dence of the situation and circumstances of the parties, for the tate^of "a°[ ^^' 
 purpose of assisting them in putting a construction on wills, that 
 are not clearly expressed. (2) In the case of Masters v. Mas- 
 ters, (3) where the testf.tor, after having bequeathed a legacy 
 to the poor of two hospitals in Canterbury, (naming them,) 
 bequeatlied another sum in his codicil " lo all and every the 
 hospitals," the second bequest was adjudged not to be void for 
 uncertainty, but to have been intended for all the hospitals in 
 
 (1) Stammers V. Dixon, 7 East, 200. 310. 6 Ves. 396. 13 Ves. 174. 15 Ves. 
 Wadley v. Baylis, 5 Taunt. 7.52. Lord 514. Herbert v. Reid, 16 Ves. 481. 
 Petre v. Blencoe, 4 Gwili. 1484. Page v. Leapingvvell, 18 Ves. 466. Doe 
 
 (2) Harris V. Bishop ofLincoln, 2 P. dem. Chevalier v. Huthwaitc, 3 Barn. 
 Wms. 135. Sir J. Eden v. Earl of Bute, & Aid. 632. 
 
 3 Bro. Pari. C 79. Doe v. Burt, 1 T. (3) 1 P. Wms. 420. 
 R. 701. Selwood v. Mildmay, 3 Ves. 
 
 (A) SeeNoto 954, p. 1396.
 
 5-1.4 Of the Admissibilitij of Parol Evidence. [Ch. 10. 
 
 Canterbury, as it appeared in evidence that the testator lived in 
 Canterbury, and had in his will taken notice of two hospitals in 
 that city. 
 
 It may often be of importance to inquire, what estate the devi- 
 sor or grantor had at the time of making his deed or will; for 
 the construction may vary, in some cases, according to the estate 
 or quantity of interest in the subject-matter. (1) If a person grant 
 an estate for life generally without saying whether for his own 
 life or for the life of the grantee, evidence is admissible to show, 
 what interest the grantor had in the premises; for if he was 
 tenant in fee, the grantee would have an estate for his own life; 
 but, if he was tenant in tail or for life only, then the grantee would 
 have an estate for the life of the grantor. (1) (c) Or, if a testator 
 bequeath such a sum in a particular stock, it will be a specific leg- 
 acy, if he has that stock at the tinie; not specific, if he has it 
 not.(l) Evidence is therefore admissible, in such a case, to show, 
 what was the state of property at the time he made his will; and 
 the construction upon the will is one way or the other, according 
 to the result. So, in the case of Doe on the demise of Freeland v. 
 Burt, (2) where the question was, whether a cellar, for the recov- 
 ery of which the action was brought, passed under a lease from 
 the lessor to the defendant, as appurtenant to a yard, which was 
 described in the lease by its abuttals, and as having been late in 
 the occupation of A.; evidence was adjudged to be admissible, on 
 behalf of the plaintiff, to show, that the cellar was, at the time of 
 the execution of the lease, in the occupation of another tenant B.: 
 here the defendant claimed the cellar, not as specifically demised, 
 but as appurtenant to the demised yard, upon the general maxim 
 of law, cujus est solum, ejus est usque ad coslum etad inferos;^'' and 
 the proposed evidence would clearly show, it could not have 
 been the intention of the parties, that the cellar should pass by 
 the lease to the defendant. " Where there is a conveyance in 
 general terms," said Mr. Justice Buller, " of all that acre called 
 Blackacre, every thing which belongs to Blackacre passes with 
 it; and then the rule which has been mentioned, prima facie 
 
 (1) See Mr. Justice Bayley's judg- sey, 2 Brod. & Bing. 551. 
 ment, ia Smith v. Doe dem. Lord Jer- (2) 1 Term Rep. 701. 
 
 (c) See Note 955, p. 1398.
 
 Sect. 1.] To explain Written Instruments. 545 
 
 obtains; but whether parcel or not of tl)e thing demised, h al- 
 ways matter of evidence." 
 
 Another case, in which evidence of the state and amount of the 
 testator's property has been admitted, is the case of Fonnereaux v. 
 Pointz; (l)(c?) where Lord Thmlow received the evidence, not to 
 control a bequest, which was distinctly and accurately described, 
 but because it was uncertain, upon the whole context, whether 
 the testator meant so much per annum or so much as a gross sum. 
 Lord Thurlow decided the case, as a case of ambiguity. And Lord 
 Alvanley, in observing on this case, says, (2) " Lord Thurlow's only 
 doubt was, whether the parol evidence was admissible to ascertain, 
 whether the testator did not mean capital, but he had no doubt he 
 must know all the circumstances of his a/fatrs."(3) In the construc- 
 tion, hovi'ever, of wills free from ambiguity, the general rule is, that 
 evidence of the value of the estate devised, or of the amount of the 
 testator's property, will not be admitted in order to raise an argu- 
 ment in favor of a particular construction; whatever may be the 
 amount, the general rule of construction must prevail. (4) 
 
 In the case of Smith v. Doe on the den)ise of the Earl of 
 Jersey, (5) lately decided by the House of Lords on a writ of 
 error, where the principal question was on a clause of re-entry 
 in a lease, under the execution of a power in a deed of mar- 
 riage-settlement, by which the settler was authorised to demise 
 by indenture such premises as were then leased for lives, &c. in a^power^"^" 
 and so as the ancient accustomed rents were reserved, &c. and 
 so as the lease contained a poicer of re-entry for non-payment 
 of the rent reserved, &c. the House of Lords determined, 
 that it was allowable to prove, that the usual and accustomed 
 form of leases (by which the estate, settled in the marriage- 
 settlement, had been demised, as well before as after the date 
 of the settlement) had contained, a conditional proviso of re- 
 
 (1) I Bro. Ch. C. 472 ; cited and Covvp. 833. Standen v. Standen, 2 
 commented on by Mr. Justice Bayley in Ves. jun. 59.3. Richardson v. Ed- 
 Smith V Doe dem. Lord Jersey, 2 Brod. monds, 7 T. R- 640. Doe v. Dring, 
 & Bing. 552. 2 Mniile & Selw. 455. Booile v. 
 
 (2) 3 Ves. 320. Blundell, 1 Merivule, 216. Jones v. 
 
 (3) On this case of Fonnereau v. Tucker, 2 Merivale, 537. Attorney- 
 Poyntz, see also 3 Merivale, 319, 320. general v. Grote, 3 Merivaje, 316. 
 
 (4) Doe dem. Handson v. Fyldes, (5) 2 Brod. & Bing. 473. 
 
 (d) Fee Note 956, p. 1398. 
 
 Vol. L 69
 
 546 Of the Admissibility of Parol EvidencOy [Ch. 10. 
 
 entry similar to the one in the indenture, whose validily was then 
 disputed. " This evidence," said Mr. Justice Bay ley, in his judg- 
 ment in the House of Lords, (1) " is not admitted, to produce a 
 construction contrary to the direct and natural meaning of the 
 words; not to control a provision, wliich was distinct, and accu- 
 rately described; but because there is an ambiguity upon the face 
 of the instrument," (for the deed of settlement required the leases 
 to contain a power of re-entry generally, on non-payment of rent, and 
 there are various forms of powers of re-entry;) " because an indefi- 
 nite expression is used, capable of being satisfied in more ways than 
 one. I look to the state of the property at the time, to the estate 
 and interest vi^hich the settler had, and the situation in which the 
 settler stood with regard to the property settled, to see, whether 
 that estate, or interest, or situation, will assist us in judging what 
 the settler meant by that indefinite expression." (c) 
 
 Reference, in Where the subject of a devise is described, by reference to 
 
 the writing, to . . _ . . , i i i i 
 
 extrinsic fact, some extrmsic fact. It IS not only competent, but absolutely 
 
 necessary, to admit extrinsic evidence for ascertaining that fact, 
 
 and, through that medium, to ascertain the subject of the devise. 
 
 This is not done with a view to explain the will, or add to its 
 
 contents. The evidence is intended only to ascertain what is 
 
 included in the description which the testator has given of the 
 
 thing devised. When there is a devise of an estate purchased 
 
 by A., or of a farm in the occupation of B., it must be shown 
 
 by extrinsic evidence, what estate it was that A. purchased, or 
 
 what farm was in the occupation of B., before it can be known 
 
 what is devised. (2) So, where a testator made a direction in his 
 
 will, respecting a certain payment for a house, which amounted 
 
 in effect to a devise of so much of the produce of timber, ordered 
 
 to be cut down, as should be sufficient to pay for the house, the 
 
 Master of the Rolls held, that there was nothing in the fait 
 
 referred to, (namely, an antecedent order for cutting down 
 
 timber) which could justly make it less a subject of extrinsic 
 
 evidence, than the facts in the other cases above alluded to. 
 
 The moment it is shown that it was a given number of trees, 
 
 or a quantity of trees amounting to a certain fixed value, 
 
 (1) 2 Brod. & Bing. 553. 5 Barn. (2) 1 Merivale, 653, by Sir W. 
 
 & Aid. 387. Grant. 
 
 (e) See Note 957. p. 1399.
 
 Sect. 2.] to vary or discharge Written Instruments. 547 
 
 on a certain estate, that the testator had ordered to be cut 
 down, the subject of the devise is rendered as certain as if the 
 number, value or situation of the trees had been specified in the 
 will.(l)(/) 
 
 It appears from some of the cases above cited, thai the vv^ords 
 of an instrument, in themselves conveying a general right to an 
 estate, may in certain cases be limited and restrained by the 
 manner in which the estate has for a length of time been ac- 
 tually enjoyed. But in the construction of a legal instrument Covenant not 
 where the question is, whether a party is bound by his covenant by ihrpany*i 
 to do a certain act, (as, for example, to grant a renewal of a acts, 
 lease,) courts of law will not consider the acts of the parties or 
 their interpretation of the instrument. In one case, indeed, 
 where it was doubtful, whether a covenant for renewal extended 
 to a perpetual renewal, and the parties had renewed four times 
 successively, the Court of King's Bench held, tliat the legal 
 effect was a perpetual renewal, on the ground that the parties 
 themselves had, by their own acts, put a construction on the cove- 
 nant, and that the Court could not say the contrary. (2) But this 
 case has been frequently disproved of, (3) and a different rule is 
 now established. " It cannot be a legal mode of construction 
 (said the Master of the Rolls, in a case of this kind,) that a party 
 who has done an act, which he was not bound to do, or from a 
 mistake, should therefore be bound forever without the power of 
 retracting. "(4) {g) 
 
 Sect. II. 
 
 Of the Mmissibilily oj Parol Evidence to vary or discharge Writ- 
 ten Instruments. 
 
 It is a general rule of law, that parol evidence cannot be admit- 
 ted to contradict, add to, or vary the terms of a will, deed, or other 
 written instrument. First, with respect to wills; 
 
 (1) Sandford V. Raikes, 1 Merivale, Igguldcn v. May, 9 Ves. 333. 7 Bos. 
 646, 658. & Pull. New Rep. 452. S. C. Clifton 
 
 (2) Cooke V. Booth, Cowp. 819. v. Walmsley, 5 T. R. 566. 
 
 (3) Baynham v. Guy's Hospital, 3 (4) Moore v. Foley, 6 Ves. 238. 
 Ves. 498. Eaton v. Lyon, 3 Ves. 694. 
 
 (/ ) See Note 958, p. 1420. (g) See Note 959. p. 1425.
 
 548 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 Wills. The statutes of the 32d and 34th of Henry VIII., which gave 
 
 the power of devising lands by a last will and testament in writing, 
 must clearly have intended, that what ever is effectual and to the 
 purpose, ought to he in writing, and sufficient without the aid of 
 words not written; and therefore no parol evidence of the testator's 
 intention can be adnnitted to control or enlarge the terms of the 
 vvill.(l) An additional reason for this rule is supplied by the stat- 
 ute of frauds, which enacts, that all devises of lands, &c. must be 
 in writing, and are not revocable except by some other will or cod- 
 icil, or by some act, as cancelling, &c. And with regard to wills 
 of personal property, it is evident from the 22d section of the stat- 
 ute of frauds, that no unwritten declaration of the testator can be 
 admitted to vary any bequest; for that section enacts, " that no 
 will in writing concerning goods, chattels, or personal estate, shall 
 be repealed, and that no clause shall be altered or changed, by any 
 words or will by word of mouth only, except the .same be in the 
 lifetime of the testator committed to writing, and after the writing 
 read to the testator, and allowed by him, and proved to be so done 
 by at least three witnesses. (2) {h) 
 
 Parol evidence is not admissible to contradict, or vary or add 
 to, the terms of a deed. (3) " It would be inconvenient," says 
 Lord Coke, " that matters in writing, made by advice and on 
 consideration, and which finally import the certain truth of the 
 agreement of the parties, should be controlled by an averment 
 of parties, to be proved by the uncertain testimony of slippery 
 memory; and it would be dangerous to purchasers and all others 
 in such cases, if such made averments against matter in writing 
 Nature of should be admitted. (i) In an action of debt, therefore, on a 
 bond. bond conditioned to pay a sum of money on a certain day, 
 
 the defendant cannot ."-how, that the bond was intended as an 
 
 (1) Brett V. Rigden. Plovvd. Com. Cambridge v. Rous, 8 Ves. 22. 
 
 345. Lord Cheney's cnse, 5 Rep. 68. (3)'Countes.s of Rutland's case, 5 Rep. 
 
 Bertie v. Lord Falkland, 1 SalU. 231. 1:6. For examples, see Buckler v. Mill- 
 
 2 Vern. 333, S. C. Stevenson v. Heath- erd, 2 Ventr. 107. Tinney v- Tinney, 3 
 
 cote, 1 Eden. 38. Gall v. Croft, 1 Dick- Atk. 8. 1 Will.s. 34. Lord Irnham v. 
 
 ins, 23. 1 Brown's C. C. 84. Mahank Child, 1 Dickins, 554. Brydges v. D. of 
 
 V. Brooks, 1 Dickins, 577. Eden v. Chandos, 2 Ves. 417. Haynes v. Hare, 
 
 Smith, 5 Ves. 341. 8 Ves. 22. 13 Ves. 1 H. Black. 659 Cliflon v. VValmslay, 
 
 376. Herbert v. Reed, 16 Ves. 481. 5 T. R. 567. Ex parte Hooper, 2 Rose 
 
 (2) Brown v. Selwin, Forrest. 240. B. C 828. 
 Lowfield V. Stoneham, 2 Stra. 1261. 
 
 (A) See Note 960, p. 1425. (i) See Note 961, p. 1428.
 
 Sect. 2.] to vary or discharge Written Instruments. 549 
 
 indemnity against another bond. (1) (j) A deed of assignment, Consideration- 
 
 which is expressly alleged in the body of the deed, to be made in 
 
 consideration of a certain sum of money paid down at the time of 
 
 the execution, estops the assignor from showing that no money 
 
 passed. (2) A memorandum, indorsed on the deed, of the receipt Receipt in- 
 
 of the money, is of a different description, and, not being under dorsed. 
 
 seal, will not amount to an estoppel, but is evidence for the jury, 
 
 capable however of being rebutted by the other circumstances of 
 
 the case. (3) (k) 
 
 In an action on a bond a party will not be permitted to show l. Proof of an- 
 a condition, different from that expressed in the bond; and a ^jj^j, °°^' ^'^' 
 conveyance cannot be averred by parol to be to another use or 
 intent than that expressed in the conveyance. But there is a 
 difference in this respect between an use and a consideration. 
 It is an established rule, that a party may aver another consider- 
 ation, which is consistent with the consideration expressed; but 
 no averment can be made contrary to, or inconsistent with, that 
 expressed in the deed. (4) Thus, if a deed of bargain and sale 
 is expressed generally to be made " for divers good considera- 
 tions," it may be averred, that the bargainee gave money or oth- 
 er valuable consideration. (5) That such an averment may be 
 taken, which stands with the deed, says Lord Coke, although 
 it be not expressly comprised in the deed, is proved by the 
 case of Villers and Beamont, (6) where the consideration in a deed 
 of bargain and sale of lands was stated to be a sum of money, 
 but it was averred and found by the jury, that the indenture 
 was made " as well in consideration of marriage (to make it 
 a jointure in bar of dower) as of the said sum of money;" and 
 it was adjudged, that, although there was a particular consid- 
 eration mentioned in the deed, yet an averment might be made 
 of another consideration, which stood with the indenture, and 
 
 (1) Mease v. Mease, Cowper, 47. Cromwell's case, 2 Rep. 76. Bedell's 
 Fitzgibb. 75. case, 7 Rep. 38. Willes, 677. 17 Ves. 
 
 (2) Rowntree v. Jacob, 2 Taunt. 192. 
 
 141. Lampon v. Corke, 5 Barn. & (5) 2 Roll. Abr. 786, (N). 1 Rep. 
 
 Aid. 606. Baker v. Dewey, 1 B. Cr. 176. 
 
 707. (6) 2 Dyer, 146, a. Vernon's case, 
 
 (3) 5 Barn. & Aid- 611. 4 Rep. 3, S. P. And see Craythorno v. 
 
 (4) 2 Roll. Abr. 786, (N), pi. 1. Swinburne, 14 Ves. 170. 
 Mildmay'a case, 1 Rep. 176. Lord 
 
 (;■) See Note 962, p- 14B7. {k) See Note 963, p. 1437.
 
 550 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 which was not contrary to it.* A fortiori, adds Lord Coke, the 
 averment may be made, where no consideration is mentioned, but 
 the deed is general, " for divers good considerations;" for then the 
 averment (that the bargainee gave money, &c.) is but an explana- 
 tion and particularising of the general words of the deed, which in- 
 clude every manner of consideration; and in all these cases, the 
 matter so averred is traversable and issuable. And Lord Hard- 
 wicke has held, that where no consideration is expressed in the 
 deed, a party claiming the benefit of a trust under the deed, may 
 prove a valuable consideration. (1) Q) 
 
 In a case of settlement also, where the question was, whether a 
 settlement had been gained by the purchase of an estate within 
 the statute 9 G. 1, c. 7, s. 5, parol evidence was adjudged to be 
 admissible, to show, that the parties, after having agreed upon 
 twenty-eight pounds as the purchase money, (which was the 
 consideration expressed in the deed of conveyance) made a sub- 
 sequent unwritten agreement before the execution of the deed, 
 that the consideration should be increased to thirty pounds, and 
 
 (1) Peacock v. Monk, 1 Ves. 12S. 
 
 * In the case of Villiers and Beamont, above cited. (2 Dyer, 146, a.) an 
 elaborate argument is to be found in support of the position, that " where a 
 consideration is expressed in a deed of gift or grant, no other cause can be 
 averred; but, if no cause is expressed, that a cause may then be averred 
 out of the deed." The report adds, " that three Judges argued to the con- 
 trary, and that the effect of that which is found by the assignment of, ' as 
 well in consideration of the said marriage, &c. as of the sum,' &c. is contain- 
 ed within the indenture, and so their finding is not contrary to it." In the 
 case of Peacock v. Monk, (1 Ves. 128,) Lord Hardwicke makes the same 
 distinction. A bill in that case was filed, claiming the benefit of a trust un- 
 der a deed, and the point was, whether the plaintiff could prove a valuable 
 consideration, as no consideration was expressed in the deed. Lord Hard- 
 wicke held, that the proof ought to be read. " It differed," he said, " from 
 the common case, upon which the objection is founded; for, to be sure, where 
 any consideration is mentioned, as of love and affection only, if it is not said 
 also, ' for other considerations,' you cannot enter into proof of any other; 
 the reason is, because it would be contrary to the deed; for when the deed 
 Bays, it is in consideration of such a particular thing, that imports the whole 
 consideration, and is negative to any other. But this is a middle case, there 
 being no consideration at all in the deed." All the authorities agree, that, 
 where the deed is not impeached for fraud or other illegal matter, no consid- 
 eration can be averred or proved contrary to that expressed in the deed; 
 and further, ihe cases referred to in the text appear to have established, that 
 it is not considered to be contrary to or inconsistent with a deed, to prove another 
 consideration in addition to the consideration expressed. 
 
 (/) See Note 964, p. 1441.
 
 Sect. 2.] to vary or discharge Written Instruments. 651 
 
 that the latter sum was actually paid. (1) Here the object of the 
 proposed evidence was not to contradict the indenture, but to as- 
 certain an independent collateral fact, namely, whether thirty 
 pounds had been bona fide paid ^ as a consideration for the purchase 
 of the estate, upon which fact the settlement would depend, (m) 
 
 The sreneral rule is, that a party to a deed will be precluded 2. Proof of dif- 
 , . ... ... 1 . ferent conside- 
 
 from showmg a condition or consideration contrary to what is ex- ration, in cases 
 
 pressed in the deed, (n) An exception, however, is always to be of frau*!. &c. 
 made, where the consideration has been illegal, as for simony, 
 usury, compounding of felony, &c. (2) (o) In an action of debt Usury, 
 upon a bond, the defendant may plead, that the bond was given 
 for an usurious consideration, though a different and a legal con- 
 sideration may be recited. (3) (p) 
 
 When fraud is imputed, the parly insisting on the fraud may Fraud, 
 prove any consideration, however contrary to the averment 
 in the deed, to show the fraudulent nature of the transac- 
 tion, {q) Thus, where the considerations, mentioned in the deed, Considera- 
 were ten thousand pounds and natural love and affection, the 
 lords commissioners of the great seal directed an issue to try 
 whether natural love and affection formed any part of the con- 
 sideration, the estates conveyed by the deed being worth thirty 
 thousand pound. On an appeal, this was confirmed; and the 
 jury, on the trial of this issue, finding that natural love and 
 affection constituted no part of the consideration, the deed was 
 afterwards set aside by the Court of Chancery. (4) So, when the 
 question is, whether a person has gained a settlement in a par- 
 ish by purchasing an estate, wiiiiin the statute 9 G. 1, c. 7, s. 5, 
 evidence is admissible, to show, that less than thirty pounds was 
 the consideration, though the deed of conveyance may express 
 a greater consideration; for that act of parliament says, that no 
 
 (1) R. V. Scammonden, 3 T. R. A deed may be avoided on the ground of 
 474, cited in Rich v. Jacltson, 6 Ves. fraud: but then the objection is not to 
 337, n. come fiom one who is party or privy to 
 
 (2) Buckler v. Millerd, 2 Ventr. 107. it; for no man can allege his own fraud, 
 Collins V. Blantern, 2 Wils. 347. Bull, in order to invalidate his own deed. 3 
 N. P. 173. Paxton v. Popham, 9 East, Barn. & Aid. 369. 
 
 408. (4) Filmer v. Gott, 4 Bro. Pari. C. 
 
 (3) Buckler v. Millerd, 2 Ventr. 107. 234, 2d edit. 
 
 (m) See Note 965, p. 1444. (n) See Note 966, p. 1445. (o) See Note 967, p. 
 1445. {p) See Note 968, p. 1447. (3) See Note 969, p. 1448.
 
 Will. 
 
 562 Of the Admissibility of Parol Evidence^ [Ch. 10. 
 
 person shall gain a settlennent, &c. by virtue of any purchase, un- 
 less the consideration for such purciiase shall amount to the sum 
 of thirty pounds bona fide paid. {\){r). 
 
 Fraud. For the purpose of setting aside a will on the ground of fraud, 
 
 parol evidence may be given of what passed at the time of the 
 testator's signing, and what the testator said; as in the case of 
 Doe on the demise of Small v. Allen, (2) where it was proved, that 
 the testator, at the time of the execution, asked, whether the con- 
 tents of the will were the same as those of a former will, the an- 
 swer to which was in the affirmative, when in fact the contents 
 were different. (s) So, where indentures or other writings are not 
 available in evidence, unless the consideration paid or contracted 
 for is truly stated, it may be proved, that a greater sum than is 
 mentioned was actually paid, or that the writing does not contain 
 the whole of the agreement, but that some of the terms of the 
 agreement were omitted, for the purpose of evading the provisions 
 of the stamp acts. In these and similar cases, the general reason 
 against admitting parol evidence will not apply; the danger is, 
 not that the admission of such evidence would introduce fraud or 
 uncertainty, but that fraud would be assisted by its exclusion, the 
 whole object of the evidence being to expose and defeat a secret 
 fraud. 
 
 But although a party, who impeaches a deed for fraud, may 
 prove a different consideration, the party, charged with the 
 fraud, will not be allowed to prove any other consideration in 
 support of the instrument. Thus, where a bill was filed to set 
 aside, as fraudulent, a conveyance, expressed to be made in con- 
 sideration of an annuity, and on the part of the defendants it was 
 objected, that the grantor of the estate had often declared, "he 
 would rather that his kinsman, one of the defendants, should 
 have the estate in consideration of this annuity, than any other 
 person for a more valuable consideration, and that he was willing 
 to give the premises to his kinsman;" the Master of the Rolls, 
 after stating, that the deed and the answer had put the defence 
 on another ground, declared, that it would be of mischievous 
 consequence, and liable to the danger of perjury, which the 
 
 (1) R. V. Mattingly, 2 T. R. 12 R. (2) 8 T. R. 147. 
 V. Olncy, 1 Manle & Selw. 387. 
 
 (r) See Note 970, p. 1451. («) See Note 971, p. 1461.
 
 Sect. 2. J to vary or discharge Written Instruments, 553 
 
 statute of frauds intended to prevent, to suffer parol evidence to 
 prove blood and kindred to have been the consideration of this con- 
 veyance. (I) (/) 
 
 As a deed takes effect from the time of delivery, not from the 3. Proof of de- 
 time of the date, it may be proved to have been delivered either be- a7^a^ differeot 
 fore or after the day, when it purports to have been made. In an '''"®- 
 action of debtupon a bond, the plaintiff may declareon a bond bear- 
 ing date on a certain day, and prove the delivery on another day ; (2) 
 or may state in his pleading, that the deed was intended, made, 
 and concluded, on a different day, from that on which the deed it- 
 self professes to have been indented and concluded. (3) (w) 
 
 Extrinsic evidence may sometimes be admitted to establish a*-^''*'^^''''.°'"' 
 
 "^ lomary right, 
 
 customary right between a landlord and tenant, though such cus- not expressed 
 
 tomary right is not expressed in the deed or lease, provided that '" ^^ ' 
 
 it is not inconsistent with any of the stipulations. Thus, it may 
 
 be shown, that a heriot is due by custom on the death of a tenant 
 
 for life, though not expressed in the lease. (4) And a lessee by 
 
 deed may be entitled to an away-going crop by the custom of 
 
 the country, though no such right is reserved by the deed. This 
 
 was determined in the case of Wigglesworth v. Dallison, (5) 
 
 which was an action of trespass for cutting down corn, which the 
 
 plaintiff claimed as his away-going crop after the expiration of a 
 
 lease by deed. The jury found the existence of the custom; and 
 
 it was afterwards moved, in arrest of judgment, that such a 
 
 custom was repugnant to the deed; and to that effect a case was 
 
 cited, which had been determined ten years before by Mr. Justice 
 
 Yates. But the Court of King's Bench held, that the custom 
 
 was not repugnant. They considered such a customary right as 
 
 consequential to the taking, in the same manner as a heriot may 
 
 be due by custom, though not mentioned in the grant or lease. 
 
 The right was entirely collateral, and not excluded by the deed, 
 
 (1) Clarkson v. Hanway, 2 P. Wms. (4) Per Cur. in White v. Sayer, 
 203. 2 Schoal. & Lef. 501. Doe Palm. 211. 
 
 dem. Roberts v. Roberts, 2 Barn. & (5) I Doug. 201. This judgment 
 
 Aid. 368. was atFii-med in the Exchequer Cham- 
 
 (2) Goddards case, 2 Rep. 4 b. ber- As to this case, see ITuges v. 
 (.3) Stone v. Bale, 3 Lev. 34S. Hall Gordon, 1 Bligh, 287, and Clinan v. 
 
 V. Cazenove, 4 East, 477. Cooke, 1 Schoal. & Lef 22. 
 
 (i) See Note 972, p. 1451. (u) See Note 973, p. 1453. 
 
 Vol. T. 70
 
 654 
 
 Of the Admissibility of Parol Evidence^ [Ch. 10. 
 
 which contained no stipulation whatever applicable to the sub- 
 ject. (1) But where the lease contains a covenant, w!)ich in ex- 
 press terms, or by plain and necessary implication, excludes the cus- 
 tomary right, there the benefit of the custom is waived, and cannot 
 be claimed consistently with the stipulations of the lease. (2) (r) 
 
 B. Evidence A demise of lands by deed, 'to comxnence {xom Michaelmas-day , 
 
 tovarythTtime niust be understood to be from New Michaelmas, since the act of 
 of holding. Parliament for altering the style unless there is some refference in 
 the deed to a prior holding from Old Michaelmas^ to show what 
 the parties intended by using generally the term Michaelmas- day. 
 The general term, Michaelmas, being thus fixed by law to mean 
 New Michaelmas, and nothing appearing in the deed, from which 
 a different use of the term can be presumed, no parol evidence can 
 be received to explain the time of holding stated in the deed. (3) 
 But if the holding has been from Michaelmas-day to Michaelmas- 
 day, or from Lady-day to Lady-day, under a parol lease, and no 
 evidence is produced, on the part of the plaintiff", to show, whether 
 the parties intended the New Lady-day, or the Old, in such a case 
 evidence is admissible, on the part of the defendant, of the custom 
 and usage in the country, that such holdings are always under- 
 stood to be from Old Lady-day. (4) (w) And in the case of old pa- 
 rol tenancies from year to year, where the time of entry cannot be 
 ascertained, and where the receipts of rent have been general, such 
 evidence seems not unreasonable. 
 
 Policies of insurance are within the same rule, and cannot 
 
 Policies of in- 
 
 flurance. 
 
 Charter-par- be contradicted or varied by any written agreement made by 
 
 the parties before the time of signing the policy. Thus, in an 
 
 ties. 
 
 (1) The case of Senior v. Armitage, 
 Holt's N. p. C 197, is another in- 
 stance. 
 
 (2) Webb V. Plummer, 2 Barn. & 
 Aid. 746. 
 
 (3) Doe dem. Spicer v. Lea, 11 
 East, 312. In this case, the tenant 
 first held from O'd Michaelmas by 
 parol, then took a lease by deed from 
 Michaelmas, and, after the expiration 
 of that lease, held on wi;hout any 
 new agreement. 
 
 (4) Such evidence was admitted by 
 Lord Kenyon, in the case of Furley 
 dem. Mayor of Canterbury v. Wood, 
 
 1 Esp. 198, cited by counsel in Doo 
 V. Lea, 11 East, 312. Upon its be- 
 ing cited, the Court asked whether 
 the lease was by deed. The report 
 does not state that fact. This case 
 of Furloy v. Wood wa."? ciied, and 
 approved of by the Court of King's 
 Bench, in Doe dem. Hall v. Benson, 
 4 Barn. & Aid. 5SS, which warrants 
 the position in the text. The Court 
 of King's Bench made a distinction, 
 in the litter case, between leases by 
 deed and leases by farol. And see 
 Doe dem. Peters v. Hopkinson, 3 
 Dow. &i Ryl. 507. 
 
 (v) See Note 974, p. 1454. {w) See Note 975, p. 1457.
 
 Sect. 2.] to vary or discharge Written Instruments, 555 
 
 early case, where in an action on a policy of insurance from Arch- 
 angel to Leghorn, the defendant attempted to show, that the 
 agreement before the subscription of the policy was, that the adven- 
 ture should begin only from the Downs, the Court would not ad- 
 mit the evidence. (1) Lord Chief Justice Pemberton in that case 
 said, that policies were sacred things, and that a merchant should 
 no more be allowed to go from what he had subscribed in them, 
 than he who subscribes a bill of exchange, payable at such a day, 
 shall be allowed to go from it, and say, it was agreed to be on con- 
 dition, &c., when it may be that the bill had been negotiated; for 
 though neither of them are specialties, they are of great credit, and 
 much for the support and advantage of trade. The same rule of 
 course applies to charter parties. In a case where a ship was 
 chartered to wait for convoy at Portsmouth, Lord Kenyon would 
 not suffer a parol agreement to be set up on the other side to sub- 
 stitute Corunna for Portsmouth. (2) 
 
 In an action on a promissory note or bill of exchange, the defend- P''o™'"wy 
 ant will not be allowed to give evidence of an agreement between 
 him and the plaintiff, at the time of making the note, that it should 
 be renewed, and that payment should not be demanded on its be- 
 coming due. (3) Nor is a parol evidence admissible to show, that a 
 note, puporting to be payable on demand, was intended by the par- 
 ties to be payable only on a contingency ;(4) or that a note, payable 
 on a certain day, was intended to be payable on some other day. (5) .. 
 That the note was given on an illegal consideration may certainly 
 be proved, for a reason before mentioned; (6) but no parol evidence 
 can be received inconsistent with the terms of the note, (a;) The 
 usage in a public office, from which the note or bill issues, will not 
 be allowed to control the legal import of the instrument. (7) (i/) 
 
 (1) Kaines v. Knightly, Skin. 54. (4) Rawson v. Walker, 1 Starkie, 
 S. C. referred to in Bates v. Grabham, N. P. C. 361. VVoodbridge v. Spooner, 
 
 2 Salk. 444, but misstated. Weston v. 3 Barn. & Aid. 233. 
 
 Ernes, 1 Taunt. 115. Uiide v. Walters, (5) Free v. Hawkins, 1 Moore'a Rep. 
 
 3 Campb. 16. C. P. 533. 8 Taunt. 92, S. C. 
 
 (2) Leslie v. De la Torre, cited 12 (6) See ante, p. 550. 
 
 East, 583. (7) Hogg v. Snailh, 1 Taunt. 347. 
 
 (3) Hoare v. Graham, 3 Campb 57. 
 Hogg V. Snaith, 1 Taunt. 347. 
 
 {x) See Note 976, p. 1458. (y) See Note 977, p. 1462.
 
 556 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 Contract for In the Case of contracts of hiring also, between masters of ships 
 
 eeanien's , / i i i i- 11 1 • • • 
 
 wa^es. snc' seamen, (though they are directed by statute to be in writing, 
 
 under a penalty to be inflicted on the master, and it has not been 
 decided that they are void if unwritten,) still, when once reduced 
 into writing, they cannot be varied or added to by parol. Thus, it 
 was ruled in the Court of Common Pleas, that a mate in a slave- 
 ship could not, on the ground of a verbal promise, claim the per- 
 quisite of the price of .a negro slave beyond the wages due to him 
 by certain written articles of agreement, executed between the 
 master, officers, and crew.(l)(z) 
 
 Usnge of iiier- However, it has been long determined by a variety of cases, that 
 
 chants, to ex- . , . , 
 
 plain mercan- mercantile contracts, such as policies ol insurance, charter-parties, 
 tile contracts. ^^^^ others of a like nature, are to be construed conformably with 
 the usage and custom of merchants. On mercantile contracts re- 
 lating to insurance, said Lord Hardwicke in a case before him, 
 courts of law examine and hear witnesses, as to the usage and un- 
 derstanding of merchants conversant therein; for they have a style 
 peculiar to thenvselves, which is short, yet is understood by them, 
 and must be the rule of construction. (2) Thus, where an insur- 
 ance was on a ship from London to the East Indies, warranted to 
 depart with convoy, the Court held, that this clause of warranty 
 must be construed according to the usage among merchants; 
 that is, from such place where convoys are to be had, as from the 
 Downs. (3) So, where the insurance is on goods till landed, and the 
 defence is, that the plaintiff^ has been guilty of unreasonable delay 
 in landing, the question can only be decided by knowing the usual 
 practice of the trade, with which every underwriter is supposed to 
 be acquainted, whether the practice has been recently or long es- 
 tablished. (4) 
 
 It has indeed been doubted by Judges of the highest au- 
 thority, whether the practice of admitting such evidence has not 
 
 (1) While V. Wilson, 2 Bos. & Pull, ter, 1 Starkie, N. P. C. 210. 4 Campb. 
 116. 3S5, S. C. The cases on this subject 
 
 (2) 1 Ves. 459. 2 Ves. 331. Edie are stated in Park's Treat, on Insur- 
 V. East India Com. 2 Burr. 1216. ances, p. 49 — 101, last edit. 
 Chaurand v. Angerstein, Peake, N. (3) Lethulier's case, 2 Salk. 443. 
 
 P. C. 43. Cochran v. Rethberg, 3 (4) Noble v. Kennoway, 1 Doug. 
 
 Esp. N. P. C. 121. Uhde v. Wal- 510. Vallance v. Dewar, 1 Campb. 
 ters, 3 Campb. 16. Birch v. Depeys- 503. 
 
 (2-) See Note 978, p. 1462.
 
 Sect. ?.] to vary or discharge Written Instruments. bbl 
 
 been carried to an inconvenient length. In the case of Anderson 
 V. Pitcher, (I) Lord Eldon, C. J. expressed himself in the following 
 terms: " It is now too late to sny, that this warranty is not to be 
 expounded with due regard to the usage of trade. Perhaps it is 
 to be lamented, that, in policies of insurance, parties should not be 
 left to express their own meaning by the terms of the instrument. 
 This seems to have been the opinion of that great Judge Lord 
 Holt. (2) It is true, indeed, that Lord Mansfield, who may be 
 considered the establisher, if not the author, of a great part of this 
 law, expressed himself thus: ' Wherever you render additional 
 words necessary, and multiply them, you also multiply doubts 
 and criticisms. '(3) Whether, however, it be not true, that 
 as much subtlety is raised by the application of usage to the 
 construction of a contract, as by the introduction of additional 
 words, might, if the matter were res integra^ be reasonably ques- 
 tioned. "(a) 
 
 But though the usage of merchants, with reference to which 
 the parties are supposed to contract, may be frequently re- 
 sorted to for explaining or defining the terms of a policy, it is 
 not therefore to be supposed, that this species of contract is not 
 subject to the same rules of construction as are applicable to 
 other written instruments. The same rules of construction apply 
 to every kind of contract. The terms of a policy are to be un- 
 derstood in their plain, ordinary, and proper sense, unless they 
 have generally, in respect to the subject-matter, (as by the 
 known usage of trade, or the like,) acquired a peculiar sense 
 distinct from the popular sense of the words: or unless the con- 
 text evidently points out, that they must, in the particular in- 
 stance, and in order to effectuate the immediate intention of the 
 parties, be understood in some other special and peculiar 
 sense. (4) Proof of usage is not admissible to contradict the 
 plain unequivocal language of a policy; and therefore in an 
 action on a policy of insurance " on the ship till moored at 
 anchor twenty-four hours, and on the goods till discharged and 
 
 (1) 2 Bos. & Pull. 168. delivering his judgment in Robertson v. 
 
 (2) Lethulier's case, 2 Salk. 443. French, 4 East, 135. Birch v. Depeys- 
 
 (3) Lilly V. Ewer, 1 Doug. 74. ter, 4 Campb. 385. Chaurand v. An- 
 
 (4) By Lord EUenborough, C- J. in gerstein, Peake, N. P- C. 43. 
 
 (a) See Note 979, p. 1462.
 
 558 Of the Admissibility of Parol Evidence^ [CIi. 10. 
 
 safely landed," evidence having been admilted, that hy the cus- 
 tom of the trade the risk on the goods, as well as on the ship, ex- 
 pired in twenty-four hours, the Court of King's Bench ^granted a 
 new trial on that ground, and on the new trial the evidence was 
 rejected. (1) Evidence of usage of trade, which contradicts the 
 express words of a contract, is clearly inadmissible. (2) [b) 
 
 Tliis doctrine of admitting evidence of usage to explain and 
 construe mercantile contracts is strongly illustrated by the case of 
 Cutter V. Powell, (3) which was an action of assumpsit brought 
 by an administratrix for work and labor done by the deceased. It 
 appeared that the captain of a ship had given a note to the deceas- 
 ed, by which he promised to pay a sum of money to the deceased, 
 provided that he proceeded on a voyage, and continued to his duty 
 as second mate, the port of destination. The second mate died 
 on the voyage, and the question was, whether the plaintiff could 
 recover in this general action any portion of the wages for the 
 time the deceased had served. An inquiry had been made by the 
 direction of the Court relative to the usage of merchants on this 
 kind of agreement; but no settled usage could be ascertained 
 one way or the other. Lord Kenyon, in delivering his opinion, af- 
 ter stating that the deceased stipulated to receive the larger sum, 
 if the whole duty were performed, and, unless the whole were 
 performed, to receive nothing, added, that on this particular con- 
 tract his opinion was at present formed; at the same time, said 
 Lord Kenyon, if we were assured, that these notes are in uni- 
 versal use, and that the commercial world have received and 
 acted upon them in a different sense, I should give up my opin- 
 ion. And Mr. Justice Lawrence said, " With regard to the 
 common case of an hired servant, to which this has been com- 
 pared, such a servant, though hired in a general way, is con- 
 sidered to be hired with reference to the general understanding 
 upon the subject, that the servant shall be entitled to his wages 
 for the time he serves, though he does not continue in the 
 service during the whole year. So if the plaintiff in this case 
 could have proved any usage, that persons in the situation of 
 
 (1) Parkinson v. Collier, sitt. after (2) Yeates v. Pirn, 2 Marshall's R. 
 Mich. 1797, Park. Insur. 416. 141. Holt, N. P. C. 95, S. C. 
 
 (3) 6 T. R. 320. 
 
 (b) See Note 980, p. 1463.
 
 Sect. 2.] to vary or discharge Written Instruments. 559 
 
 this mate are entitled to wages in proportion to the time they serv- 
 ed, the plaintiff might have recovered according to that usage. 
 But if this is to depend altogether on the terms of the contract^ 
 itself, the plaintiff cannot recover any thing." 
 
 The same rule applies to all such written agreements as are re- Agreements 
 
 , , , ,-,,... riM 1 within the sta- 
 
 quired by the statute ol Irauds to be in writing. 1 ney cannot be tute of frauds, 
 contradicted, or added to, or substantially varied, by parol evi- 
 dence; (1) such evidence would defeat the statute, and introduce 
 that uncertainty, which it was the object of the legislature as far 
 as possible to suppress. Where the rent for a house was specified 
 in a written agreement to be twenty-six pounds a year, and the 
 landlord, in an action for use and occupation, proposed to show by 
 parol evidence, that the tenant had also agreed to pay the ground- 
 rent, the Court refused to admit the evidence. (2)* So, where a 
 tenant having paid the land-tax, brought an action to recover it 
 back from his landlord, and gave in evidence a written memoran- 
 dum of agreement in the plaintiff's hand-writing, which specified 
 the rent and terms, but was silent respecting the payment of taxes; 
 and the defendant offered parol evidence, that, previously to the 
 drawing up of the memorandum, it had been mentioned and was 
 understood by the parties, that the rent was to be paid clear of all 
 taxes: tins evidence was rejected, and the Court of Common 
 Pleas afterwards, on a motion for a rule to show cause, why the 
 verdict should not be set aside, adjudged the evidence to be in- 
 admissible, and refused the rule. (3) 
 
 (I) Binstead v. Coleman, Bumb. 65. Price, 143. Bartlett v. Pickersgili, 1 
 
 Parteriche v. Powlet, 2 Atk. 383. Port- Cox, Ch. C. 15. 
 
 more v. Morris, 2 Br. C. C. 219. Hare (2) Preston v. Merceau, 2 Black. 
 
 V. ?hearvvood, 1 Ves- 241. Jackson v. 1249. 
 
 Cater, 5 Ves 628. 7 Ves. 218. Meres (3) Rich v. Jackson, 4 Bro. Ch. C. 
 
 V. Ansell, 3 Wils 275. Wain v. Warl- 515. 6 Nes. 334, n , S. C. 
 ters, 5 East, 16. Hope v. Atkins, 1 
 
 * In the case of Preston v. Merceau, above cited, Mr. Justice Blackstone 
 after stating, that the Court could neither alter the rent nor the term, the 
 two things expressed in the agreement, is reported to have added, " that, 
 with re.'ipect to collateral matters, it might be different; the plaintiff might 
 shew, who was to put the house in repair, or the like, concerning which no- 
 thing is said." But this opinion is not consistent with the principle established in 
 Meres v Ansel!, (3 Wils. 275,) Rich v. Jackson, (4 Bro. Ch. C. 515,) Powell v. 
 Edmonds, (12 East, 6,) and several other cases above mentioned, which plainly 
 show, that parol evidence is not admissible either to vary, or to add to, the terms of 
 the written agreement. To add a new term, or to define what was before indefinite, 
 is in effect to make a material variation.
 
 560 Of the Admissibility of Parol Evidence^ [Ch. 10. 
 
 Upon the same principle, the verbal declarations of an auc- 
 tioneer at the time of sale are not admissible in evidence for the 
 ^purpose of varying, or adding to, or explaining the printed condi- 
 tions of sale. (I) (c) Thus, where the conditions described only 
 the number and kind of timber trees to be sold by lot, but said 
 nothing as to the weight of the timber, the defendant in an action 
 for not completing his purchase according to the conditions, was 
 not allowed to prove, that the auctioneer at the sale had warranted 
 the quantity of limber to amount to a certain weight, and the 
 Court of King's Bench was of opinion, that this evidence had been 
 properly rejected. (2) Lord Ellenborough said, " the purchaser 
 ought to have had it reduced into writing at the time, if the rep- 
 resentation then made, as to the quantity, swayed him to bid for 
 the lot. If the parol evidence were admissible in this case, in 
 what instance might not a party by parol testimony superadd any 
 term to a written agreement.'' — which would be setting aside all 
 written contracts, and rendering them of no effect. There is no 
 doubt that the warranty as to the quantity of timber would vary 
 the agreement contained in the written conditions of sale." 
 
 "When a contract is made for the sale of goods, and the bar- 
 gain has been reduced into writing, pursuant to the seventeenth 
 section of the statute of frauds, parol evidence would not be ad- 
 mitted to show, that the parlies agreed to vary the quantity of 
 goods to be delivered. But the rule is different with respect to 
 the time of delivery, or the particular mode of delivery, which 
 are not essential parts of the contract, but are frequently ex- 
 pressed in the memorandum, together with the quantity and 
 the price of the goods, in order the more easily to carry the 
 contract into execution ; proof of a verbal agreement has 
 therefore, been allowed to prolong the time, limited in a written 
 contract, for the delivery of a certain quantity of barley; (3) 
 on the ground, that it was only a continuance of the original 
 contract, and a forbearance on the part of the plaintiff for a 
 
 (1) Gunnis V. Erhart, 1 H. BI. 289. Beam. 328- Ogilvie v. Foljambe, 8 
 
 Jenkinson v. Pepys, cited 6 Ves. 330. Merivale. 53. 
 
 Higginson v. Clowes, 15 Ves. 516 (2) Powell v. Edmonds, 12 East, 6. 
 
 Clowes V. Higginson, 1 Ves. & Beam. (3) Wnrren v. Stagg, ruled by Buller, 
 
 624. Winch v. Winchester, 1 Ves. & J., cited in 3 T. R. 591. 
 
 (c) See Note, 981, p. 1463.
 
 Sect. 2.] to vary or discharge Written Instruments. 561 
 
 longer time. And in a very late case, where the question was, 
 whether, after a part-delivery of goods, which, by a written contract, 
 were to be delivered at fixed times, a verbal agieement, to extend 
 the time for the delivery of the remainder, was good, the Court of 
 King's Bench held, that it was good; (1) for this was not a parol 
 variation of the contract, but what had been done was only in per- 
 formance of the original contract: the parties agreed to a substitu- 
 tion of other days, instead of those originally specified for its per- 
 formance, but still the contract remained, {d) Parol evidence is al- 
 so admissible to show that a written contract, purporting to be made 
 between A. and B., as seller and buyer, was in fact made by B. 
 not on his own account, but as agent for a third person. (2) (e) 
 
 By the rule of law, independently of the statute of frauds, Contracts 
 \ . . , . , ,. . within statute 
 
 parol evidence cannot be received to contradict a written agree- of frauds, 
 ment; the written instrument must be considered as containing 
 the true agreement between the parties, and as furnishing better 
 evidence than any which can be supplied by parol. (3) The 
 reason assigned by Lord Coke against admitting parol evidence 
 to contradict the terms of a deed, is very general, and applies to 
 the case of a written agreement, though writing may not have 
 been absolutely necessary. " It would be inconvenient," he 
 says, " that matters in writing, made on consideration, and which 
 finally import the certain truth of the agreement of the parties, 
 should be controlled by an averment of the parties, to be proved 
 by the uncertain testimony of slippery memory." (4) Thus, 
 where there has been a contract in writing for the sale of goods, 
 specifying the quantity and the price, neither of the contracting 
 parties would be allowed to give evidence of conversations pre- 
 vious to, or contemporaneous with the bargain, for the purpose of 
 proving that the price was to be different, or that a different 
 quantity was to be delivered; for this evidence would directly 
 contradict the written memorandum, which must be considered 
 as expressing the final intention and understanding of the parties 
 at the time of the contract. For the same reason, if the time of 
 
 (1) Cuff V. Penn, 1 Maule & Selw. (3) 2 Atk. 383 Sayer, 189. 2 Bro. 
 21. Ch. C. 219. 7 Ves. 21S. 4 Taunt. 
 
 (2) Wilson V. Hart, 7 Taunt. 295. 1 786. 2 Barn. & Cress. 634. 
 Moore, C. P. 45, S. C. (4) 5 Rep. 26. 
 
 (d) See Note 982, p. 1463. (e) See Note 983, p. 1464. 
 
 Vol. T. 71
 
 662 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 carrying away the goods is not expressed in the agreement, in 
 which case a reasonable time is allowed, evidence will not be ad- 
 mitted to show, that the purchaser verbally agreed to carry them 
 away immediately after the purchase. (I) (/) 
 
 But if it were not necessary in the first instance to have the bar- 
 gain reduced into writing, evidence of conversations subsequent to 
 the time of making the agreement would probably be admitted, to 
 show that the parties agreed afterwards to vary the contract, or add 
 some new stipulation. Here the written agreement, so far it pur- 
 ports to express the true meaning of the parties, that is, down to 
 the time of its being concluded, is not in any manner contradicted 
 or impugned; but from the proposed evidence it would appear, 
 that they afterwards varied, or added to, the contract; which is not 
 inconsistent with any thing contained in the original agreement, (g) 
 Lord Hardwicke is reported to have said in a case before him, (2) 
 that " to add any thing to an agreement in writing, by. admitting 
 parol evidence, which would affect land, is not only contrary to the 
 statute of frauds, but to the rule of common law, before that stat- 
 ute was in being." It is not, however, expressly stated in the re- 
 port of the case before Lord Hardwicke, whether the circumstance, 
 to which the parol evidence related, was previous or subsequent to 
 the signing of the agreement; but it seems rather probable, from 
 the nature of the case, that it was previous. 
 
 eral°fa°ts^°o^ ' Though an ambiguity, apparent on the face of a written in- 
 show intention, strument, cannot be explained by extrinsic evidence, yet where 
 a question arises as to the general intention of the parties, 
 concerning which the instrument is not decisive, it has been 
 held, that proof of independent facts, collateral to the instru- 
 ment, may be properly admitted, (/i) Thus, in the case of King v. 
 
 (1) Greaves v. Aslilin, 3 Campb. accidents It does not ;ippear from the 
 
 426. Williams v. Jones, 5 Barn. & report whether the writleii rT:eii:oranduni 
 
 Cress. 108. See Jefferey v. Walton, was signed by tlie defendant; if it was 
 
 1 Starkie, N. P. C. 267, wherfe, in an not .signed, it cannot be considered us 
 
 action for not taking proper care of u evidence of the agreement. See Ingram 
 
 horse, which the defendant had hired, v. Lea, 2 Campb. 521. 
 the time of hiring and the price were (2) i'arleriche v. Powlet, 2 Atk. 384. 
 
 proved by a written memorandutn, and See Clinan v. Cooke, 1 Schoal. & Lef. 
 
 it was proved by parol evidence, that 35. 
 the defendant aareed to be liable for all 
 
 (/ ) See Note 984, p. 1466. {g) See Note 985, p. 1477. {h) See Note 986, 
 p. 1478.
 
 Sect. 2.] to vary or discharge, IVritien Instruments. 563 
 
 Laindon,(l) on a question between ivvo parishes respecting the set- 
 tlement of a pauper, where it appeared that the pauper agreed to 
 serve a person three years, to learn the business of a carpenter, and 
 evidence was admitted at the sessions, that, at the time of making 
 this agreement, the pauper agreed also to give a sum of money, as 
 a premium to be taught the trade; that he paid the money, and 
 that he was not to be employed, nor w as he employed, in any other 
 work than that of a carpenter; the Court of King's Bench held, 
 that the evidence was properly admitted, as it was not offered to 
 contradict the written agreement, but to ascertain an independent 
 fact collateral to the written instrument, in order to explain the in- 
 tention of the parties, the instrument being in some measure equiv- 
 ocal. It does not distinctly appear from the report, whether the 
 fact alluded to was the verbal agreement, (by which the pauper 
 agreed to pay a premium, and stipulated that he was to do only 
 carpenter's work,) or only the payment of a certain sum of money 
 by the pauper to the master at the time, when the agreement was 
 made. But from the opinions expressed by the court, in which 
 the evidence of the verbal agreement was not adverted to, it may 
 be inferred, that the latter fact alone was adjudged to be admissible. 
 Lord Kenyon said, " The evidence was offered to ascertain an in- 
 dependent fact, and I think it was properly received in evidence. 
 That being so, the case appears to be shortly this: in consideration 
 of three guineas paid by the pauper, the master undertook to leach 
 him the business of a carpenter, and the pauper was to serve three 
 years." Mr. Justice Lawrence expressed himself nearly in the 
 same words; and Mr. Justice Le Blanc concurred in opinion with 
 the Court, that the parol evidence was admissible, as evidence of a 
 fact collateral to the written instrument. (2) 
 
 A deed cannot be discharged or revoked by parol; for every Parol agree- 
 
 T , „ , , 1 !• 1 J ment discharg- 
 
 contract or agreement, says Liord Coke, ought to be dissolved ej ^y parol. 
 
 by matter of as high a nature as the first deed; nihil tain con- 
 veniens est naturali cequitati quam unumquodque dissolvi eo Uga- 
 mine, quo ligatumest. (3)(i) This reason is applied by Lord Coke 
 
 (1) ST. R. 379. And see 14 Ves. (3) 5 Rep. 26, a. 9 Rep. 79, b. 3 
 170. Lev. 234. Blake's case, 6 Rep. 44, a. 
 
 (2) See also 14 East, 544. Braddick v. Thompson, 8 East, 344. 
 
 (t) Sea Note 987, p. 1479.
 
 564 Of the Admissibility of Parol Evidence, [Cli. 10. 
 
 only to agreements by specialty. But it appears to be generally 
 understood, that executory agreements in writing, not under seal, 
 may before breach be discharged and abandoned by a subsequent 
 unwritten 'agreement, as well in cases where the original contract 
 is required by the statute of frauds to be in writing, as where writ- 
 ing is unnecessary. Agreements, not by specialty, whether writ- 
 ten or unwritten, are classed on the same level, and denominated 
 agreements by parol; there is no such third class recognized by the 
 law of England as contracts in writing not under seal; if they are 
 merely written, and not specialties, they are called parol (or, more 
 properly, simple) contracts.(l) It follows, therefore, that to admit 
 evidence of an unwritten agreement, for the purpose of showing 
 an abandonment or discharge of a previous written agreement, 
 would not be to dissolve the agreement by matter of an inferior 
 nature. Nor does the statute of frauds contain any provision re- 
 specting the dissolution of agreements; it prescribes the manner 
 of revoking wills, and in many cases makes a written memoran- 
 dum necessary in order to establish and enforce agreements; but, 
 as to the discharge or abandonment of executory agreements, the 
 statute is entirely silent, leaving the case as it stood at common 
 law. The 17th section enacts, in certain cases, that " a contract 
 for the sale of goods shall not be allowed to be good, unless some 
 note or memorandum, in writing, of the bargain shall be made 
 and signed," &c.; but an agreement to waive that contract, before 
 breach, is not a contract for the sale of goods, and may therefore 
 be binding, though not reduced into writing. So, the fourth 
 section enacts, that " no action shall be brought upon any con- 
 tract or sale of lands, &c., or any interest in or concerning them, 
 unless the agreement, upon which the action shall be brought, 
 or some memorandum or note thereof, shall be in writing," &c. 
 This is very different from enacting, that all contracts or agree- 
 ments concerning land shall be in writing; terms so general and 
 comprehensive, that, if they had been introduced into the act, 
 they might be considered as including an agreement for the 
 waver of a purchase-contract, as well as the original agreement 
 itself: the section only provides, " that no action shall be brought 
 upo7i any contract or sale of lands,''^ &c.; but it does not proceed 
 
 (1) Rann v. Hughes, 7 T. R. 350, n.
 
 Sect. 2.] to vary or discharge Written Instruments. 565 
 
 to enact, in case an action is brought, and the defence set up is a 
 dissolution and abandonment of the agreement, that some r.ote or 
 written memorandum is also necessary to give effect and validity 
 to such subsequent agreement. (J) 
 
 On a bill filed in a court of equity for the specific perfornnance 
 of a written agreement, it appears to be the better opinion, that 
 the defendant may insist, that the agreement has been since dis- 
 charged merely by parol between the parties. {l){k) In the case 
 of Buckhouse and Crosby, (2) indeed, where a bill was filed for 
 the specific performance of a contract for the sale of an estate, 
 and the defendant insisted that the contract had been discharged 
 by parol, in support of which the case of Goman v. Salisbury 
 was cited as an authority. Lord Hardwicke is reported to have 
 declared, that " though he would not say, that a contract in 
 writing could not be waved by parol, yet he should expect in 
 such a case a very clear proof, and the proof in the case before 
 him he thought very insufficient to discharge a contract in writ- 
 ing;" Lord Hardwicke then observed, that the statute of frauds 
 requires, " that all contracts and agreements concerning land 
 should be in writing, (3) and that an agreement to wave a pur- 
 chase contract is as much an agreement concerning land as the 
 original contract; however, there was not any occasion then to 
 determine the point."* (Z) And in the case of Bell v. Hovv- 
 
 (1) Goman v. Salisbury, 1 Vern. 39. 2 Ves. 299, S. P. 1 Ves. jun. 
 
 840, cited and approved by Sir J. 404, S. P. 17 Ves. 356. 
 Strange, in Legal v. Miller, 2 Ves. (2) Eq. Cas- Ab. 32. 
 299, and in Pitcairne v. Ogbourne, 2 (3) This is not quite correct. Vide 
 
 Ves. 376, and cited by Lord Chan- supra, p. 564. 
 cellor Redesdale in 1 Schoal. & Lef. 
 
 * In this case of Buckhouse and Crosby, the waver was not between the 
 purchaser and vendor, but between a former and a subsequent purchaser. 
 The material facts of the case will be found to be, that A., seized of lands in 
 fee-simple, mortgaged them to the defendant, and afterwards authorized his 
 attorney to sell the estate, who sold it by parol agreement to the plaintitf; A. 
 being informed of this, wrote to the plaintiff, acquainting him that he accepted 
 the purchase-money: afterwards A. by letter offered the estate for the same 
 money to a third person, who agreed with A. for the purchase on behalf of 
 the defendant, and accordingly A. by indenture conveyed the premises to the 
 defendant in consideration of 300 guineas then paid. Before this coriveyance, 
 C, who treated for the purchase on behalf of the defendants, had notice of 
 the plaintiff's title, but, being examined as witness for the defendant, swore 
 that, before the conveyance was executed to him, the plaintiff agreed, that 
 all prior contracts between him and A. should be void, and that it should be 
 referred to A , whether the plaintiff or the defendant should be the purchas- 
 er, and that A., being written to, gave the preference to the defendant. 
 
 0) See Note 988, p. 1481. (/c) See Note 989, p. 14S2. (/) See Note 990, p. 
 1482.
 
 56^3 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 ard, (1) Lord Hardwicke, after noticing an objection on the part of 
 the defendant, against decreeing an execution of written articles 
 for the sale of an advowson, (namely, that the plaintiff had waved 
 the articles,) is reported to have said, " It is certain, an interest in 
 land cannot be parted with, or waved, by naked parol without 
 writing; but added, " that articles may by parol be so far waved, 
 that, if a party come into a court of equity to have specific execu- 
 tion of them, such parol waver will rebut the equity which the 
 party before had, and prevent the Court from executing them spe- 
 cifically." But in the last case on this subject, (2) where the plain- 
 tiff prayed a specific performance of an agreement for a lease, un- 
 der which the plaintiff had taken possession, as afterwards, as the 
 defendant stated in his answer, the parties mutually abandoned 
 the terms of the written agreement, and made another agreement 
 by parol, the Master of the Rolls, observing upon the argument 
 for the defendant, "" that the agreement was waved, and that a 
 written agreement may be so far waved by parol, that the Court 
 will refuse the interposition of its equitable jurisdiction to enforce 
 it," said, that as he conceived there was not in the case before 
 him any waver within the meaning -of the dicta or the decisions 
 upon the subject, it was not necessary for him to give any precise 
 opinion upon the point; " but," he added, " as at present advised, 
 I incline to think, upon the doctrine of this Court, such would be 
 the effect of a parol waver clearly and satisfactorily proved. The 
 waver, spoken of in the cases, is an entire abandonment and disso- 
 lution of the contract, restoring the parties to their former situa- 
 tion. No such thing was for a moment in the contemplation of 
 the parties. All that they at any time meant, was to add to, or 
 modify, the terms of the original agreement." The bill was ac- 
 cordingly dismissed, but without costs. 
 
 Sect. III. 
 
 Of the. Rule in Courts of Equity, respecting the Admissibility oj 
 Parol Evidence. 
 
 It would far exceed the proper limits of this treatise, to en- 
 quire into the rules observed by courts of equity, respecting the 
 
 (1) 9 Mod. 302. (2) Price v. Dyer, 17 Ves. 356,363. 
 
 See also 9 Ves 250.
 
 Sect. 3.] in Courts of Equity. 567 
 
 admissibility of parol evidence, on subjects within their peculiar 
 jurisdiction. Such an enquiry would be long and laborious; and 
 the multitude of cases, which it would be necessary to cite, would, 
 after all, be seldom wanted in the business of courts of common 
 law. The purpose of entering at all upon this subject, is with a 
 view to mention some points very nearly connected with those io 
 the last section, (m) 
 
 The rules of evidence, in courts of equity, are, in general, the general rule, 
 same as in courts of common law; although, in the application 
 of those rules, diversities must necessarily arise from the different 
 modes of proceeding in the two jurisdictions. (1) It is a general 
 principle, therefore, established in the former courts, no less than 
 in the latter, that parol evidence of the intention of the parties is 
 not admissible to vary or add to iJie term of a written agree- 
 ment. (2) (n) If the agreement is certain, explained in writing, 
 and signed by the parties, lliat binds them: if it is not certain, and 
 parol evidence is necessary to prove what the terms were, to ad- 
 mit such evidence would effectually break in upon the statute of 
 frauds, and introduce all the mischiefs, inconvenience, and uncer- 
 tainty, which the statute was designed to prevent. (3) In the 
 case of Rich v. Jackson, (4) therefore, on a bill for specific per- 
 formance, the Court of Chancery gave the same judgment, 
 against the admissibility of parol evidence, to vary a written con- 
 tract, as had been previously given by the Court of Common 
 Pleas in an action between the same parties. " The question," 
 said Lord Kosslyn in that case, " is, whether, in equity any 
 more than at law, such evidence ought to be admitted; whether 
 there is any distinction in a court of equity, where a party comes 
 to enfoice a written agreement, by obtaining a more formal in- 
 strument, and to add, in doing that, a term not expressed in the 
 written agreement, and of such a nature as to bear against the 
 written agreement.'' I have looked into all the cases, and can- 
 not find, that this Court has ever taken upon itself, in executing 
 
 (1) 2 Merivale, 464. Calor, 5 Ves. 688. 
 
 (2) Fell V. Chamberlain, 2 Dickins, (3) Buller, J., Brodie v. St. Paul, 1 
 424. Hare v. Shearwood, 1 Ves. jun. Ves. jun. 333. 
 
 241. Jordan v. Hawkins, 3 Bro. Ch. C. (4) 6 Ves. 334, n. 
 
 388. 1 Ves. jun. 402, S C. Jackson v. 
 
 (m) See Note 991, p. 1482. (n) See Note 992, p. 1483.
 
 568 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 a written agreement by a specific performance, to add to it, by any 
 circumstance that parol evidence could introduce." 
 
 There are certain elcceptions to this general rule, the principle 
 of which wilt be briefly considered in the present section. First, 
 it will be enquired, in what cases a defendant may prove by parol 
 evidence a variation in a written agreement, contrary to the inten- 
 tion of the party; secondly whether a plaintiff mny produce such 
 evidence. Some cases will then be mentioned, in which extrinsic 
 evidence has been admitted, to rectify mistakes in deeds, and for 
 the purpose of raising trusts in wills. ^ 
 
 Rule with re- 1- When a court of equity is called upon to exercise its peculiar 
 ^arf ^ch^r%d jurisdiction by decreeing a specific performance, the party charged 
 is admitted to show, that under the circumstance the plaintiff is 
 not entitled to have the agreement specifically performed. (1) The 
 admission of such evidence, as a matter of defence, is very frequent; 
 it is used to rebut an equity. The defendant says, " The agree- 
 ment, which you seek, is not the agreement which I meant to en- 
 ter into;" and then he is let in to prove fraud or mistake:(2) (o) 
 for the Court will not grant a decree for specific performance, un- 
 less it is satisfied, that, under all the circumstances, it is equitable 
 to give more relief than the plaintiff is entitled to at ]a\\.(p) 
 
 The statute of frauds has not altered the situation of a de- 
 fendant, against whom a specific performance is prayed; and he 
 may give the same evidence now, which he might have given 
 before. (3) The words of the statute are, that "no person shall 
 be charged upon any contract, or sale of lands, &c. unless the 
 agreement, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorized.' No 
 person, then, can be charged with the execution of an agree- 
 ment, who has not, either by himself or his agent, signed a 
 written agreement: but the statute does not say, that if a writ- 
 ten agreement is signed, the same exception to it may not be 
 
 (1) 7 Ves. 219. 39. 
 
 (2) LordRedesdale, 1 Schoal. &Lef. (3) 14 Ves. 524. 
 
 (o) See Note 993, p. 14S3. (p) See Note 994, p. 1484.
 
 Sect. 3.] iVi Courts of Equity. 569 
 
 taken as before the statute. Now, before the statute, if a bill had 
 been brought for specific performance, and it had appeared that the 
 agreement had been prepared contrary to the intent of the defend- 
 ant, he might have said, " That is not the agreement meant to 
 have been signed." Sucii a case is left by the statute as it was be- 
 fore; the statute does not say that a written agreement shall bind, 
 but that an unwritten agreement shall not bind, (1) {q) 
 
 The general principle, to be deduced from the various authorities 
 on this subject, appears to be, that a defendant, in answer to a bill 
 for a specific performance, may suggest, and prove by parol evi- 
 dence, that, by reason of fraud, surprise, or mistake, the written in- 
 strument does not correctly and truly express the agreement, but that 
 there is an omission or insertion of aterm, orsome material variation, 
 contrary to the intention and understanding of the parties. (2) (r) 
 
 The defendant may be admitted also to prove by parol evi- 
 dence, that, after signing the written agreement, the parties made 
 a verbal agreement varying the former; provided those variations 
 have been so acted upon, that the original agreement can no 
 longer be enforced without a fraud upon the defendant. Thus, 
 in a case where there was a written agreement for the lease of a 
 house at the annual rent of 321., and that the owner of the house 
 should put it in repair; it was afterwards discovered, that the 
 house was not worth repairing, and, without any alteration of the 
 agreement, the house was in consequence pulled down with the 
 consent of the tenant, who was apprised of the great expense, 
 which the landlord must necessarily have incurred in making 
 the repairs; the tenant then made a verbal agreement to add 8/. 
 per annum to the 32/., provided the house should be rebuilt; 
 and, on a bill brought by the tenant for a specific performance 
 of the lease, on the foot of the written agreement to pay 321. 
 rent, the defendant in his answer set up the parol agreement. (3) 
 
 (1) Lord Redesdale's judgment in tlie 211. Clarke v. Grant, 14 Ves. 524. 
 case of Clinan v. Cooke, 1 Schoal. & Ramsbottom v. Gosden, 1 Ves. & 
 Lef. 39. Beam. 165. Winch v. Wiuchesler, 1 
 
 (2) Joynes r. Statham, 3 Atk. 388. Ves Si Beam. 37.5. 
 
 Marquis of Townseiid v. Stangroom, 6 (3) Legal v. Miller, 2 Ves. 299, cited 
 Ves. 328. Woolam v. Hearne, 7 Ves. 6 Ves. 3«j(j, n ; and 17 Ves. 3G4. 
 
 iq) See Note 995, p. 1484. (r) See Noto 996, p. 1484. 
 
 Vol. I. 72
 
 670 Of the Admissibiliiy of Parol Evidence, [Cli. 10. 
 
 Now here the original agreement was unexceptionable, but the ex- 
 ecution of it under the new circumstances would have been a fraud 
 upon the landlord; the landlord having rebuilt instead of repairing 
 the house, and the tenant having agreed to pay an additional rent 
 in consideration of the additional expense. The situation of the 
 parties was therefore materially altered. But variations, verbally 
 agreed upon, are not sufficient to prevent ihc execution of a writ- 
 ten agreement, where the situation of the parties in all other re- 
 spects remains unaltered. (1) 
 
 Rule with re- 2. Whether a plaintiff in equity, on a bill for the specific perform- 
 plTinUff in ance of a written agreement, can in any case be admitted to prove, 
 equity. ^j^^t some terms of the agreement have been oTnitted or varied by 
 
 fraud, mistake^ or surprise, and that the agreement is different from 
 what the parties intended; and whether, on such a case being dis- 
 tinctly proved, the plaintiff can obtain a decree for a specific perform- 
 ance of the agreement in its rectified fortn, is a much larger and 
 more difficult question, and one on wliich it is not easy to reconcile 
 all the authorities. In the cases of Lord Irnham v. Child, (2) and 
 Lord Portmore v. Moiris, (3) where the plaintiff filed a bill to redeem 
 an annuity, and question was, whether parol evidence could be ad- 
 mitted to show, that the parties intended tlie annuity to be redeem- 
 able, but did not insert in the deed a clause to that effect, supposing 
 that it would make the transaction usurious ;* Lord Thurlow in 
 the one case, and Lord Kenyon in the other, thought it clear, that 
 if the clause had been omitted by fraud, or if the agreement had 
 been varied by fraud, the evidence would be admissible. Lord 
 Thurlow, in the former case, after saying, that the rule of 
 
 (1) 17 Ves. 364; and see Omerod v. (2) 1 Bro, Ch C. 91. 
 Hardmau, 5 Ves. 722. (3) 2 Bro. Ch. C. 219. 
 
 * Lord Eldon lias observed on these cases, (a) tliat they proceed on an in- 
 disputably clear principle, that the parties did not mean to insert in the 
 ETeennent a provision for redemption, because they agreed that it v\'ould be 
 usurious; and they desired the Court to do, not what they intended, for the 
 insertion of that provision was direcliy contrary to that intention; but they 
 desired to be put in the same situation as if they had been belter informed, 
 and consequently had a contrary intention The answer is, they admit it 
 was not to be in the deed; and why was the Court to insert it, where two 
 risks had occurred to the parties, the danger of usury, and the danger of trusting to 
 the honor of the party? 
 
 (a) 6 Ves. 3S2.
 
 Sect. 3.] in Courts of Equity. 571 
 
 evidence is not subverted, if there is clear proof of fraud, added, 
 " Then as to mistake or accident, suppose it were a clear thing, that 
 one agreement was intended, and that by accident it was extended 
 further; but there is no such case in ihe book: if admitted to be a 
 mistake, the Court would not overturn the rule of equity by vary- 
 ing the deed, but it would be an equity dehors the deed. Then it 
 should be proved as much to the satisfaction of the Court, as if it 
 were admitted." In another part of his judgment, Lord Thurlovv 
 says, " it is necessary to see the statement of the bill; if it states, 
 that it was agreed, that the clause for redenipiion should not be in- 
 serted, they cannot read the evidence; but if it is stated, that it was 
 intended to insert the clause, but that it was suppressed hy fraud , 
 I cannot refuse to hear evidence read to establish the'rule of equity. 
 They are at liberty to read evidence to prove such fraud as will 
 make a ground in equity." 
 
 Tliis doctrine respecting the propriety of receiving parol 
 evidence, on the part of the plaintiff, under circumstances of 
 clear fraud, appears to have been admitted in other modern 
 cases.(l) The difficulty has generally been in carrying the 
 principle into practice, and in ascertaining what constitutes a 
 fraud. In the case of Pember v. Mathers, (2) Lord Thurlovv 
 allowed the plaintiff", on a bill for specific performance, to give 
 parol evidence of a promise by the defendant under the follow- 
 ing circumstances. The Itill was filed by the original lessees of 
 a leasehold estate against an assignee of the lease, on his parol 
 undertaking to indemnify the plaintiff" against all rents and 
 covenants, to be paid or kept on the part of the lessee, and to 
 execute a bond for such an indemnity. The assignment had 
 been made by a sale by auction; and the conditions of sale did 
 not stipulate the indemnity; but it rested only on parol evidence. 
 This evidence was objected to as inadmissible, on the ground, 
 that, where 'he parties have entered into a written agreement, 
 no parol evidence could be adnjitted to increase or diminish 
 such agreement. Lord Thurlow said, " Tlie ■ rule is right; 
 but where the objection (to the omission of an article) was 
 
 (1) See Marquis of Townsend v. (2) 1 Cm. Ch. C. 51. 
 Stangroom, 6 Ves. 338.
 
 572 Of the Admissibility of Parol Evidence, [Cli. 10. 
 
 formally made, and promised by the other party to be rectified, it 
 comes among the string of cases, where it is considered as a fraud 
 upon the rule of law." As some doubt arose, whether the evidence 
 was sufficient to establish the parol undertaking to indemnify, en- 
 tered into by the defendants, Lord Thurlow directed an issue to be 
 tried, whether such promise was made on the day of the execution 
 of the assignment; and, tliis being found in the affirmative, the 
 plainiift' had a decree for a specific performance. In speaking, how- 
 ever, of the case of Pember v. Mathers, the late Master of the Rolls 
 appears to have entertained some doubt, how far it would be proper 
 to go the length of the doctrine there laid down, or to decree a spe- 
 cific performance on the ground of such a promise. (l)(s) 
 
 It does not appear from any reported case, that the plaintiff 
 has been allowed to give parol evidence, varying a written agree- 
 ment, on the ground of mistake or surprise. In the case of 
 Joynes v. Siathan),(2) indeed, where, on a bill for the specific per- 
 formance of an agreement for the lease of a house at a certain 
 rent, the defendant was admitted to prove by parol evidence, 
 that the agreement was for rent clear of all taxes. Lord Chan- 
 ^ cellor Hardwicke, after observing that " the defendant had a 
 
 rightto insist, either on account of an omission, mistake, or fraud, 
 that the plaintifi:' should not have a specific performance," is re- 
 ported to have added — " Suppose the defendant had been the 
 plaintiff", and had brought a bill for the specific performance of 
 the agreement, I do not see but that he might have been allowed 
 the benefit of disclosing this to the Court, because it was an 
 agreement executory only, and, as in leases there are always cove- 
 nants relating to taxes, the Master will enquire, what the agree- 
 ment was as to taxes; and therefore the proof, offered here, is 
 not a variation of the agreement, but is explanatory only of 
 what those taxes were." Lord Redesdale, in a very late case, (3) 
 comtnenting on this passage, observed, " That the words do not 
 appear to import any thing positive;" and with respect to the 
 case, which Lord Hardwicke conceived might possibly be made, 
 where even a plaintiff might be admitted to show an omission 
 
 (1) See 14 Ves. 524. Lef 39. See also 4 Bro Ch. C. 518. 
 
 (2) 3 Atk. 388. G Ves. 335, n.; and 7 Ves 220. 
 
 (3) Cliiian v. Cooke, 1 Sclioal. & 
 
 (s) See Note, 997, p. 1484.
 
 Sect, 3.] in Courts of Equity. 573 
 
 in a written instrument as well on the ground of mistake as of 
 fraud,* added, that he could find no decision except the contrary 
 way. 
 
 In the case of the IMarquis of Townsend v. Stangroom,(l) Lord 
 Eldon, after observing, "that it was competent to a court of equity 
 (for the purpose of enabling it to determine whether it will specifi- 
 cally execute an agreement) to receive evidence of the circum- 
 stances under which it was obtained," added, " and I will not say, 
 that there are no cases, in which it may be received to enable the 
 Court to rectify a wrilttn agreement upon surprise or mistake, as 
 well as fraud : jiroper irrefragable evidence, as clearly satisfactory, 
 that there has been mistake or surprise, as, in the other case, that 
 there has been fraud. I agree that those producing evidence of mis- 
 take or surprise, either to rectify an agreement, or calling upon the 
 Court to refuse a specific performance, undertake a case of great dif- 
 ficulty; but it does notfollow, that it is therefore incompetent to prove 
 the actual existence of it by evidence." A specific performance 
 was in this case sought, with a variation intended to be introduced 
 by parol. And Lord Eldon stated, " he would not say, that, upon 
 the evidence without the answer, he should not have had so much 
 doubt whether he ought not rectify the agreement, as to take 
 more time to consider whether the bill should be dissmissed; but 
 the evidence must be taken, due regard being had to the an- 
 swer;(2) and the Court is not to decide upon the allegation as to 
 the probability against the answer." The bill was accordingly 
 dismissed, but without costs. 
 
 The later case of Woollam v. Heam(3) determined by Sir 
 
 W. Grant, Master of the Rolls, on great consideration, sets the 
 
 doctrine of the courts of equity on this subject in a very distinct 
 
 and clear point of view. The plaintiff there filed a bill for the 
 
 (1) 6 Ves. 338. Ch. C. 168. 1 Ves. jun. 241. 
 
 (2) And see 1 Bro. Ch. C. 92. 3 Bro. (3) 7 Ves 211. 
 
 * The words of Lord Redesdale, in the report, are as follows : — " There 
 seems to have been something of a floating idea in the mind of Lord Hardwickc, 
 that by possibility a case might be made, in which even a plaintiff might be admit- 
 ted to show an omission either by mistake or fraud. However I can find no decis- 
 ion except the contrary way."
 
 574 Of the Admissibility of Parol Evidence, [Ch. 10. 
 
 specific ijerforniance of an agreeineui for a lease; the bill stated 
 that the rent of 73Z. 10s., specified in the agreement, was inserted 
 by mistake, or with some unfair view; the real agreement being, 
 that the plaintiff was to have the lease upon the same rent as the 
 defendant paid to his lessor, and that he the defendant did not pay 
 more than GO/. The defendant in his answer admitted, he might 
 have said, that the plaintiff should have the lease upon the same 
 terms, not meaning the same rent, but upon terms on the whole 
 equally advantageous; insisting, that as he had laid out a great 
 deal of money, the plaintiff would upon the whole have as good a 
 bargain. The plaintiff offered parol evidence to prove, that he 
 was to have it on the same terms as the defendant had it, and to 
 show that nothing could be meant by the expression but the same 
 rent; nothing being in discussion between them but the amount 
 of rent. The question was, whether this evidence was admissible. 
 The Master of the Rolls, in giving judgment, said, that" by the 
 rule of law, independent of the statute of frauds, parol evidence 
 could not be received to contradict a written agreement. To ad- 
 mit it for the purpose of proving, that the written instrument does 
 not contain the real agreement, would be the same as receiving it 
 for every purpose. It was for the purpose of shutting out that in- 
 quiry, that the rule of law was adopted. Though the writter 
 instrument does not contain the terms, it must in contemplation ot 
 law be taken to contain the agreement, as furnishing better evi- 
 dence, than any that parol can supply. If this had been a bill 
 brought by the defendant^ for a specific performance," added the 
 Master of the Rolls, " I should have been bound by the decisions 
 to admit the parol evidence, and to refuse a specific performance. 
 But this evidence is offered, not for the purpose of resisting, but 
 of obtaining a decree; first, to falsify the written agreement, and 
 then to substitute in its place a parol agreement, to be executed 
 by the Court. Thinking as I do, that the statute has been 
 already too much broken in upon by supposed equitable excep- 
 tions, I shall not go farther in receiving and giving effect to 
 parol evidence, than I am forced by precedent. There is no 
 case, in which the Court has gone the length now desired. But 
 two cases(l) are produced, in which, it is said, there is an in- 
 timation from Lord Hardwicke to that effect. Upon this, it 
 
 (1) Walker v. Walker, 2 Alk. 98. Joynes v. Statham, 3 Atk. 388-
 
 Sect. 3.] in Courts of Equity, bib 
 
 might be sufficient to say, it was not decided. But it is evident 
 from the manner, in which that great Judge quahfies his own 
 doubts, that he thought it impossible to maintain such a proposi- 
 tion as the plaintiff is driven to maintain. In Walker v. Walker, it 
 is to be observed, first, that the parol evidence was not offered for the 
 purpose of contradicting any thing in the written agreement. It 
 was admitted, that, as far as it went, it stated the true meaning; 
 but it was contended by the defendant, that there was another col- 
 lateral agreement, which the plaintiff ought to execute, before he 
 could have the benefit of the written agreement; it was evidence 
 too, offered in defence, to resist a decree. The evidence offered in 
 this case, "added the Masterofthe Rolls, concluding his judgment, 
 '' is to vary an agreement in a material part; and having varied 
 it, to procure it to be executed in another form. There is nothing 
 to show that this ought to be done." The proposed evidence was 
 accordingly rejected; and the bill was dismissed, without costs. (f) 
 
 Where a written agreement has been varied by parol, and Rule, in case 
 there has been such a part-performance of the parol variation, for^nance.'^" 
 as would have procured it to be specifically executed, provided 
 it had formed a part of the original agreement, the plaintiff, in 
 that case, will be adiiiitted to give evidence of such subsequent 
 unwritten variation. As to v\hat constitutes a part-performance, 
 Lord Redesdale, in a late case, (J) has laid down the following 
 rule, — that " notliing is to be considered as a part-performance, 
 which does not put the [)arly into a situation that is a fraud upon 
 him, unless the* agreement is performed: for instance, if upon a 
 parol agreenient a man is admitted into possession, he is made 
 a trespasser, and is liable to answer as a trespasser, if there be 
 no agreement. This is put strongly in the case of Foxcraft v. 
 Lister ; (2) there the party was let into possession on a parol 
 agreement, and it was said, that he ought not to be liable as 
 a wrong-doer, and to account for the rents and profits, because 
 he entered in pursuance of the agreement. Then for the purpose 
 of defending hin)self against a charge, which might otherwise be 
 made against him, such evidence was admissible; and if it was 
 admissible for such purpose, there is no reason why it should not 
 
 (1) Clinan v. Cooke, 1 Schoal. & (2) 2 Vern. 456. 
 Lef. 41. 14 Ves. 3SS. 
 
 {t) See Note 998, p. 1485.
 
 576 Of the Admissibility of Parol Evidence^ [Ch. 10. 
 
 be admissible throughout. That," continued Lord Redesdale, " I 
 apprehend to be the ground, on which courts of equity have pro- 
 ceeded, in permitting part-performance of an agreement to be a 
 ground for avoiding the statute; and I take it, tlierefore, that 
 nothing is to be considered as part-performance which is not of 
 that nature. Payment of money is not part-performance, for it 
 may be repaid; and then the parties will be just as they were be- 
 fore, especially if repaid with interest. ]5ut the great reason, why 
 part-payment does not take such an agreement out of the statute, 
 is, that the statute has said, in another case, namely, with respect 
 to goods, that it shall operate as a part-performance; and the 
 courts have therefore considered this as excluding agreements for 
 lands, because it is to be inferred, that when the legislature said it 
 should bind in the case of goods, and were silent as to the case of 
 lands, they meant it should not bind in the case of lands. "(«) 
 
 Mistakes in 3. Mistakes and misapprehensions, in the drawers of deeds or 
 
 rected.^""^"" ^^ written agreements, are a subject for relief in courts of equity, 
 and may be rectified according to the true intention of the par- 
 ties. (1) (v) Thus, on a bill to rectify a mistake in a policy of 
 insurance, which the plaintiff suggested to have been made too 
 general, and contrary to the intention of the parties, Lord Hard- 
 wicke said, (2) there could be no doubt, but that the Court of 
 Chancery had jurisdiction to relieve in respect of a plain mistake 
 in contracts in writing, as well against fraud in contracts ; so 
 that if reduced into writing, contrary to the intention of the par- 
 ties on proper proof that would be rectified. ".This," as Lord 
 Eldon has observed, (3) "is loose in one sense, as it leaves to 
 every Judge to say, whether the proof is that proper proof, 
 which ought to satisfy him." The principal evidence on the part 
 of the plaintifF, in this case, was the deposition of a witness, 
 who had transacted the business for the company the (defend- 
 ants;) but this evidence appeared to the Court not sufficiently 
 certain to be relied upon. Lord Hardwicke observed, that the 
 proof in such a case ought to be the strongest possible; and as 
 it did not sufficiently appear to the Court, that the policy had 
 
 (1)2 Atk. 203. Stangroom v Mar- Motteux v. Lond. Assur. Comp. 1 Atk. 
 
 quisof Townsend, 6 Ves. 32S. Beau- 545. Thomas v. Fraser, 3 Ves. 399. 
 
 iiiont V. Bramley, 1 Turn. Ch. R. 41. 10 Ves. 227. 
 
 (2) Henkle v. Roy. Ex. Assur. Camp . (3) 6 Ves. 333, 
 1 Ves. 318, cited 6 Ves. 333. See also 
 
 (ii) See Note 999. p. 1488. (v) See Note 1000, p. 1486.
 
 Sect. 3.] in Courts of Eqnity. oil 
 
 been framed contrary to the intention and real agreement of the 
 parties, the bill was dismissed. In the case of Baker v. Paine, 
 on a bill filed for an account under a written agreement, the min- 
 utes and calculations, which had been previously made by the par- 
 ties, were admitted in evidence, in order to prove a mistake made 
 in the agreement by the person employed to draw it. (I) And in 
 a variety of cases, where settlements have been drawn by mistake, 
 contrary to the instruction of the parties, the mistake has been 
 rectified by courts of equity, and the settlement made conformably 
 to the instructions. (2) The Court, however, will expect full and 
 satisfactory evidence of the mistake and misapprehension of the 
 party's intention, before it will alter a settlement. In one case, 
 where the parol evidence of the attorney, who had received verbal 
 instructions, was offered, the Court held, that as nothing appeared 
 in writing under the hands of the parties to show their intention, 
 the settlement could not be altered; (3) and in another case, Sir 
 Thomas Clarke is reported to have said, that he did not give a posi- 
 tive opinion as to the head of mistake, but he did not think the 
 Court had relied on parol evidence only. (4) (?o) 
 
 4. Provisions in wills have in certain cases been enlarged by Trusts raised 
 
 , • , , • • • 1 . ^ •' \n equity. 
 
 parol evidence, and trusts m equity raised, as against execu- 
 tors or other persons claiming an interest under wills, where it 
 has appeared, that the testator intended to make a further ,pr0' 
 vision in his will, but omitted to insert it on receiving a promise, 
 that notwithstanding such omission, his intention should be car- 
 ried into effect, {x) Thus, in the case of Oldham v. Lichford, (5) 
 a witness vvas allowed to prove that the defendant, who was the 
 testator's executor and devisee of his real estate, had promised 
 the testator, that he would pay the annuity bequeathed to the 
 plaintiff, and that otherwise the testator would have charged the 
 real estate with the payment. And on this evidence, it was 
 decreed at the Rolls, that the real estate should be charged with 
 the annuity ; and this decree was afterwards affirmed, on appeal 
 
 (1) Balier v. Paine, 1 Ves. 457, cited (3) Harvvcod v. Waliis, cited 2 Vcs. 
 in Ricli V. Jackson, 6 Ves. 336, n. 195. 
 
 (2) Randal v. Randal, 2 P. Wins. (4) 1 Dickens, 295. And sec Slicr- 
 469. Jenkins v. Q,uincliant, 5 Ves. 596, gold v. Boone, 13 Ves. 373, 37(j. 
 
 n Barstow v. Kilvington, 5 Ves. 59. (5) 2 Vern 506. 
 
 Butt V. Barlow, 3 Bro. Ch. C. 451. 
 
 (w) See Note 1001, p. 1487. (a-) See Note 1002, p. 14S7. 
 
 Vol. I. 73
 
 578 Of the J dmissibilitij of Parol Evidence, ^c. [Ch. 10. 
 
 to the Court of Chancery. In a later case, (1) where a bill was 
 filed against an executor and residuary legatee, to have a bequest 
 enlaged, it appeared from a paper written by the defendant him- 
 self, that the testator, a few days before his death, had mentioned 
 to him what he had bequeathed to the plaintiff, and that it was his 
 wish, that he should have a larger sum; it was further proved, 
 that after the testator's death, when the paper was shown to the 
 defendant, he promised to perform the same according to the 
 testator's request; another witness proved, that the testator men- 
 tioned to him, in the presence of the defendant, the annuity, which 
 he had bequeated to the plaintiff, and that it was his desire he 
 should have a larger annuity, mentioning the sum ; that the tes- 
 tator then requested the defendant to see such annuity paid to the 
 plaintiff, and the defendant promised it should be done, as if it 
 had been expressed in the will; and, lastly, that the witness and 
 the defendant desired the testator to send for some person to draw 
 a new will, which the testator refused to do, saying, he would 
 leave it to the defendant's generosity. " Upon this evidence," 
 said the Master of the Rolls, "the question is, whether by re- 
 posing that trust in the defendant, the testator was not prevented 
 from making a new will. The defendant ought to have told him, 
 that if he did not put it in his will, he would not do it. Instead of 
 that, he promised to do it; upon which the testator refused to 
 make a new will. I am quite relieved," added the Master of the 
 Rolls, " from any difficulty as to the statute of frauds. The ques- 
 tion is, whether the confidence, that the defendant would perform 
 the irust which he undertook, did not prevent the testator from 
 making a new will." The Court accordingly ordered the defend- 
 ant to pay the increased sum out of the assets, with costs; and, 
 if the assets were not sufficient for the costs, that he should pay 
 them personally, {y) 
 
 (1) Barrow v. Greenongh, 3 Ves. 152. 
 
 (y) See Note 1003, p. 1487. 
 THE END OF THE FIRST BOOK.
 
 INDEX TO VOL T 
 
 A. 
 
 Abatement, 
 
 plea of, 
 
 not necessary, when one of several partners or co-conlraclors sues 
 
 alone on the contract, 210. 
 otherwise in action of tort, not founded on the contract, 210. 
 necessary when one of several partners or co-contractors is sued on 
 the contract, 209. 
 
 ACCEPTANCE 
 
 vacated hy foreign judgment, 350. 
 
 ACCEPTOR 
 
 of bill, when competent, 67. 
 
 in an action against several persons, as acceptors, an admission of the 
 
 partnership by one, is evidence against him, of a joint promise, 92. 
 may show that he had no effects of drawer, 67. 
 
 ACCESS, 
 
 want of, proved by circumstantial evidence, 158. 
 
 not to be proved by the wife, 87, 241. 
 
 not even after the husband's death, 87. 
 
 nor by the declarations of deceased parents, 241. 
 
 ACCESSARY. See tit. Principal. 
 
 conviction of principal, evidence against, 331. , 
 
 although judgment drawn up irregularly, 331, n. 
 principal, competent on trial of, 40. 
 acquittal of accessary, not a bar to a charge of being principal, 323. 
 
 ACC05IPL1CE, 
 
 character of, 36. 
 
 his title to mercy, 38. 
 
 motion to admit, 39. 
 
 evidence of, when jointly indicted, 40. 
 
 cannot plead his being admitted, in bar to an indictment, 38. 
 
 on what condition admitted to give evidence, 88. 
 
 reasons for admitting, 36. 
 
 refusing to give evidence, may be tried, 39.
 
 580 INDEX TO VOL. 1. 
 
 ACCOMPLICE— con/inueJ. 
 
 not compellable to answer us to other oilences, 276. 
 to be believed with caution, 37. 
 in felonj, competent, 36. 
 
 though promised a pardon or reward, 39. 
 though separately indicted, 39. 
 though convicted, if not attainted, 39. 
 where acquitted, to be used as witness, 40. 
 in misdemeanor, competent, 4L 
 in trespass, competent, 41. 
 dying declarations of, 236. 
 act of, when evidence against the rest, 94. 
 
 rule as to the acts or declarations of co-conspirators being evidence, 
 95. 
 principal felon, witness against accessory, 40. 
 confirmatory evidence, how far necessary, 4L 
 
 the sort of confirmatory evidence necessary, 41, 42. 
 the principle upon which the evidence of an accomplice, when con- 
 firmed, is received, 42. 
 informers, acting as accomplices, 42. 
 remark on such evidence, 43. 
 
 ACQUITTAL, 
 
 proof of, 
 
 date of, variance in, 214. 
 of person, as accessory, not a bar to a charge of being princi pal, 323, 
 in Court of Exchequer, its effects, 355. 
 in criminal prosecution, its effect, 350. 
 on indictment for non-repair of road, its effect,^ 340, n, 
 by foreign court, its effect, 350. 
 
 ACT OF PARLIAMENT. 
 
 gereral act, 317. 
 
 distinction of public and private, 317. 
 
 preamble, evidence, 318. 
 
 taken notice of judicially, 318. 
 
 when to be pleaded, 319. 
 
 when judicially noticed, 318. 
 
 proof of, 383. 
 
 private act, 317. 
 
 when public as to particular clauses, 318. 
 
 taken notice of, without pleading, when, 318. 
 
 reco.'^nized by public act, 318. 
 
 proof of, 383. 
 
 special clause as to proof, 333. 
 
 proof, as against a party acting under it, 384. 
 
 ACT OF STATE, 
 
 proved by Gazette, 407. 
 
 of foreign government, how proved, 402.
 
 INDEX TO VOL. I. 5QI 
 
 ACTS OF OWNERSHIP, 
 
 in other portions of property, 174. 
 
 ACTS OF PARTY, 
 
 proving under commission of bankruptcy; 107. 
 not objecting to notice to quit, 108. 
 ADDRESS, 
 
 from the lords to the king, proved by the Journals, 406. 
 to the king, proved by the Gazette, 407. 
 
 ADMINISTRATION. See Letters of. 
 
 granted without jurisdiction, void, 344. 
 
 how granted, 398. 
 
 letters of, proved by certificate, 398. 
 
 by original book of acts, 398. 
 
 by examined copy, 398. 
 not evidence of death, 343. 
 disproved, by showing bona notabilia, 344. 
 
 or by showing a repeal of the letters, 344. 
 
 or forgery, 344. 
 
 ADMINISTRATOR. See tit. Executor. 
 
 surety for by the bond, competent for defendant, 52. 
 ADMIRALTY, 
 
 sentence of, in questions of prize, 346. 
 
 effect of, 346. 
 
 when conclusive, 346, 
 
 proof of, 393. 
 
 sentence of foreign court of, 347. 
 
 effect of, 347, 348. 
 
 when conclusive, 347. 
 
 conclusive of what, 348. 
 
 when not conclusive, 349. 
 
 when not admissible, 349. 
 
 ADMISSION, 
 
 what amounts to an admission, 107. 
 limitation of rule, 109. 
 proved by arbitrator, 109. 
 by witness 
 
 of being guilty of perjuiy, will not render imcompetent, SO. 
 or of felony, 30. 
 by nominal party, 90. 
 by petitioning creditor, 91. 
 by owner of ship, 91. 
 by one of several trustees, 91, n. 
 by one of several corporators, 91, n. 
 by person interested in policy, 92. 
 by joint maker of note, 93. 
 by party to suit, evidence against him, 89. 
 
 before or after commencement of suit, 89. 
 
 in writing or by parol, 89.
 
 5S2 
 
 INDEX TO VOL. I. 
 
 ADMISSION— co/»/»/i»e(i. 
 
 bj party, ihoagh onlj truttoe, 90. 
 
 interested, thougli not party on record, DO, 01. 
 rated iiiliabitant, in case of settleiiipnt, 91. 
 for wlioiii the action is brought, 91. 
 under treaty or compromise, 108. 
 limitation of the rule, 109. 
 by counsel, whether evidence, 106. 
 by accounting with another, 227. 
 by acknowledgment of title on former occasion, 227. 
 by receipt of tithes, 227. 
 of assignment of lease, 228. 
 of bankruptcy, 229. 
 of composition for tithes, 229. 
 ofFer to pay, by way of compromise, not evidence of admission of 
 
 a debt, 108. 
 limitation of rule, 109. 
 dispenses with formal proofs, 215. 
 by deceased person, against interest, 255. 
 by agent of party, when evidence against the principal, 101. 
 
 proof of agent's admission, 99. 
 on record, by pleading, 170. 
 by pleading guilty to assault, effect of, 338. 
 whole admission to be taken together, 110. 
 effect of, in dispensing with strict proof, 226. 
 acts of party when amounting to aduii-ssion, 107, 109, 227. 
 ^ taking tithes, 227. 
 
 taking tolls, 227. 
 
 proving debt under commission, 107. 
 by agent of party, when evidence against the principal, 101. 
 
 proof of agent's admission, 99. 
 by attorney of party, 105. 
 when admissible, 106. 
 propositions by attorney, 106. 
 proof of such propsitions, 106. 
 
 admission of the execution of an instrument, by the attorney, dispenses 
 with the testimony of subscribing witness, 105, 466. 
 proof of his being attorney for the party, 106. 
 by guardian of party, 89. 
 
 not admissible against the minor, 89. 
 by person jointly interested with party, 92. 
 by wife of party, in a business of which she had the exclusive management 
 
 85. 
 
 admission of debt due for goods furnished to her, 86. 
 admission as to the terms of hiring servant, 85. 
 by partner of party, party to suit, 92. 
 
 not part to suit, 92.
 
 INDEX TO VOL. I. 583 
 
 ADMISSION— coH/uj«erf. 
 
 by co-conspirator, 94. 
 
 by co-defendant, 92. 
 
 by co-trespasser, 93. 
 
 on record, 170. 
 
 admission in recital of deed, 89. 
 
 in grant to a corporation, 89. 
 
 in answer in chancery, 89. 
 in examination of bankrupt, 89. 
 before arbitrators, 109. 
 wiiole to be taiien together, 110. 
 
 ADULTERY, 
 
 confessions of wife not evidence of, for husband, 82. 
 conversations between her and defendant, evidence of, against 
 
 him, 8 2. 
 manner of plaintiff 's living with his wife, may be shown, 82. 
 wife's letters to defendant, not evidence of, 82. 
 wife's declaration, in eloping, when evidence, 2.34. . 
 
 AFFIDAVIT, 
 
 on putting off trial, 17. 
 by atheist, 21. 
 
 convict, 28. 
 
 quaker, in his own defence, 25. 
 proof of contents, against party using it, 104. 
 when evidence against party, 379. 
 proof of swearing, 379. 
 proof of, when filed, 379. 
 when not filed, 379. 
 
 AFFIRMATION, 
 
 of quaker, 25. 
 
 rule in civil — in criminal cases, 25. 
 
 AFFIRMATIVE, 
 
 of issue to be proved, 194. 
 
 examples to illustrate the rule, 194, 195. 
 
 where breach of duty is imputed, 195. 
 
 on prosecution for coursing deer, 196. 
 
 in action on game laws, 198. 
 
 in assumpsit on plea of infancy, 199. 
 
 where presumption of law is in favor of the other party, 197. 
 
 where issue is on the life or death of a person, the proof lies 
 upon the party asserting the death, 197. 
 a fact peculiarly within the knowledge of n party to be proved by him, 
 198. 
 
 AGENT, 
 
 proof of power, 104. 
 general authority, 104.
 
 584 INDEX TO VOL. I 
 
 AGENT— -continued. 
 
 how far the act of an agent will affect n principal in criminal ca- 
 ses, 102. 
 of prosecutor, conduct of, how fur examinable by the defendant in a prosecu- 
 tion, 103. 
 to discount a bill, G2. 
 for receiving money, 62. 
 
 admission by, when evidence against principal, 102. 
 at the time of the contract, 100, 101. 
 within the scope of authority, 101. 
 receipt by agent, 99. 
 letter of agent, 100. 
 by a clerk, 100. 
 proof of admission, 99. 
 of wife as agent of husband, 85. 
 proof of agency, 103. 
 
 by the admission of the principal, 104. 
 by the agent, 104. 
 
 by the affidavit of agent, used by principal, 104. 
 by showing general authority, 104. 
 declaration by person, referred to for information, 101. 
 
 by person employed to make certain propositions, 101. 
 by person employed as interpreter, 101. 
 competent witness fcr principal, when, 129. 
 to prove a sale, 129. 
 who an agent within the rule, 129. 
 
 a person, having bought goods in his own name, cannot prove that he 
 bought as agent for the defendant, 130. 
 when not competent, on ground of liability to costs, 62. 
 not competent to prove contract well executed, 56, 130. 
 books of, rule for production, 438. 
 parol evidence admissible to show agency in contract under statute 
 
 of frauds, 561. 
 in making a policy, 104. 
 of officer, communications to, 284. 
 of police, communications to, 285. 
 
 AGREEMENT. See tit. Assumpsit, Contract, and Statute of Frauds. 
 
 blank in, supplied by parol evidence, when, 540. 
 
 purporting to be a compromise, evidence, when, 108. 
 
 for lease, when a present demise, 526. 
 
 discharge by parol, when, 563. 
 
 mistake in drawing of, when and how rectified , 576. 
 
 within statute of frauds, parol evidence when admissible, 560, 562 
 
 parol evidence not allowed to vary or contradict, 559.
 
 INDEX TO VOI-. I. 585 
 
 AGREEMENT— co;i/i«ue(i. 
 
 as, to show that a ditlerent quantity of goods was contracted for, 6G0. 
 
 otherwise, as to a variation in time or 7node of delivery, 560. 
 declaration of auctioneer, not to vary conditions of sale, 660. 
 stamp, wiien requisite, when not 524. 
 requiring several stamps, 510. 
 unstamped copy of, evidence, 519. 
 
 for a house, and also for goods in it, to be stamped as a lease, 507. 
 articles of agreement, under seal, to be stamped as a deed, 506. 
 articles, by an auctioneer, 525. 
 for sale of growing crops, must be stamped, 529. 
 parol evidence of unstamped lost agreement, not admissible, 504. 
 part performance of, 575. 
 specific performance of, 567. 
 
 ALTERATION 
 
 of bill of e.'cchange, requires a new stamp, when, 511, 512, 513, 516. 
 of policy of insurance, 513, 517. 
 as to time of sailing, 514. 
 property insured, 514. 
 warranty of sea-worthiness, 515. 
 of bill of sale of ship, 517. 
 
 to correct mistakes in instruments, with consent of all parties, does not re, 
 quire a new stamp, 515. 
 
 A MBKJUITY. And see tit. Evidence. 
 
 in writings, 
 
 latent, explained by parol evidence, 531. 
 
 grant of manor of S., when two of that name, 531. 
 devise to two of the same name, 532. 
 mistake in devisee's name, 532, 536. 
 
 in description of premises, 534. 
 in name of fund, 533. 
 patent, not explained by parol, 538. 
 uncertainty in devise, 538. 
 omission of name in will, 539. 
 surname without christian name, 539. 
 initial of surname only, 539. 
 omission in written agreements, &c., 540. 
 where writing not necessary, 540. 
 in bishop's register, 540. 
 in surrender of copyhold, 540. 
 evidence, when admissible to give effect to a will, 533. 
 with reference to the estate, 534. 
 with reference to the devisee, 536. 
 
 Vol. I. 74
 
 586 
 
 ANCIENT WRITINGS, 
 
 INDEX TO VOL. I. 
 
 proof of, 417, 418. 
 
 proof of custody, 479. 
 
 secondary evidence of, 459. 
 
 found amongst court rolls, evidence of customary descent, 417. 
 
 as to right of common, 418. 
 
 though not proved to be signed by m.ijoiity of copy-holders, 418. 
 
 or by person under whom the parties claim, 41.S. 
 
 usage, -when admissible to explain, 540. 
 
 will proof of, 503. 
 
 ANCIENT DEMESNE, 
 
 recovery of lands in, 3S6. 
 
 ANNUITY-DEED, 
 
 memorial of, proved by copy of enrolment, 464. n. 
 
 ANSWER IN CHANC ERY, 
 
 evidence against the defendant, 359. 
 
 evidence for him, if produced by the other party, how far, 360. 
 hearsay evidence in, not admissible, 360. 
 identity of the party to be proved, 394. 
 when used as admission, or to contradict, 393. 
 to be taken altogether, not in parts, 359. 
 but not all equally credible, 360. 
 
 when to prove incompetency of witness, whole not to be read, 359. 
 examined copy of the answer sufficient, 361. 
 though not signed, 361. 
 and no decree passed, 361. 
 
 unless in indictment for perjury, or action for malicious prosecu- 
 tion, 361. 
 of defendant, not evidence against co-defendant, 362. 
 of minor, by guardian, not evidence against him, 362. 
 
 of occupier of land, evidence against a succeeding occupier, in tithe cause, 361. 
 of partner, evidence of joint debt against co-partner, 362- 
 
 not evidence of the partnership, 362. 
 of wife, whether evidence against her, after husband's death, 362. 
 proof of answer, 393. 
 proof of swearing, 394. 
 
 swearing of answer presumed, when, 393, 394. 
 not on indictment for perjury, 394. 
 presumed in actions for malicious prosecution, 394. 
 examined copy, with proof of identity, 394. 
 proof of bill necessary, if to be found, 393,
 
 INDEX TO VOL. T. 587 
 
 APPOINTMENT, 
 
 to office, 
 
 evidence of, from proof of acling, 226. 
 of overseer, secondary evidenco of, when adnjissible, 454. 
 
 APPRENTICE, 
 
 indenture of, stamp, when presumed, 523. 
 agreement for, assignment of, requires a stamp, .527. 
 
 APPROPRIATION, 
 
 evidence of, from ancient cliartulary, 430. 
 
 APPROVEMENT, 
 
 ancient doctrine of, 37. 
 
 modern practice, 38. • 
 
 APPROVER, 
 
 what he must disclose, 37. 
 may be admitted, or refused by the court, 37. 
 liable to capital punishment in certain cases, 37. 
 See also lit. Accomplice. 
 ARBITRATION. See lit. Award. 
 ARBITRATOR. See lit. Award. 
 
 may prove admissions made before him, 109. 
 witness attending before, privileged from arrest, 5. 
 ARREST, 
 
 parties privileged from, 4. 
 witness privileged from on trial, 4. 
 
 before arbitrator, 6- 
 before insolvent debtors' court, 5. 
 on execution of writ of inquiry, 5. 
 before commissioners of bankrupt, -"• 
 before court martial, 5- 
 how long privileged, 4. 
 
 ARSON, 
 
 proof of property found in possession of prisoner, 170. 
 
 charged to have been committed in the night-tims, may be proved to hava 
 
 been in the day-lime, 207. 
 ARTICLES OF THE CHURCH, 
 
 proof of the signature of, by parson in action for tithes, not necessary, in the 
 
 first instance, 195. 
 
 ARTICLES OF THE PEACE, 
 
 exhibited by wife against hu.sband, 85. 
 affidavit contradicting, not to be received, 85. 
 
 ARTICLES OF WAR, 
 
 proved by the Gazette, 407. 
 \SSAULT. See til. Trespass. "' 
 
 what the party said at the lime of receiving the hurt, when admissible, 
 232. 
 
 conviction, before a magistrate on the information of injured parly, not evi- 
 dence in an action brought by same party, 339.
 
 588 IN OKA TO VOL. 1. 
 
 ASSAULT — continued 
 
 plea of guilty to indictment, vvlielher evidence, 838. 
 
 several actions against several, — defendant in one, competent for defendant 
 
 in another, 47. 
 if defendant, under plea of son assault, prove the assault on the same 
 
 day, &c., plaiiUKf cannot prove tho assault on another day, 215. 
 indictment for, with intent to romniil a rape — proof of woman's character, 
 
 how far admissible. 176. 
 
 ASSIGNEES OF BAKRUPT, 
 
 solicitor to commission, when not compellable to produce proceedings^ 
 
 142. 
 ASSIGNMENT, 
 of lease, 
 
 admission of, 228. 
 of judgment, 
 
 examined copy of memorial, evidence, 389- n. 
 of apprentice, agreement for requires a stamp, 527. 
 
 ASSOCIATE, 
 
 accomplice. See tit. Accomplice. 
 informer. See lit. Informer. 
 
 ASSUMPSIT. See tit. Agreement, non Assumpsit, &c. 
 for sale of goods, 
 
 how much of the contract to be stated, 207. 
 shop-boolt, when evidence of delivery of goods, 263. 
 on proof of sale to defendant and third person, that person i:t not competent 
 
 for defendant to disprove such sale, 59. 
 captain of ship, competent to prove his receipt of money for the use of the 
 
 defendant (ship-owner,) 66. 
 receiver of money for the defendant's use, competent, 66. 
 
 ATHEIST, 
 
 not competent witness, 21. 
 
 ATTACHMENT 
 
 of witness for comtempt, 7. 
 when granted, 7. 
 for refusing to attend before a court-martial, 14. 
 
 ATTAINDER 
 
 of witness, if objected, to be proved, 30. 
 proof of, by record, 30, 331. 
 objection for, how removed, 31, 331. 
 
 ATTENDANCE 
 
 of witness at trial, mode of compelling, 2. 
 
 witness abroad, or going abroad, may be examined on interrogatories, 
 
 when, 14. 
 witness resident in India, or abroad, evidence of how procured, 
 
 15. 
 inability to attend, from sickness, aground for putting ofi' trial, 16, 17.
 
 INDEX TO VOL I. 539 
 
 ATTEN D A NCE— con linued. 
 
 mode of procuring, 
 in civil cases, 2. 
 
 subpoena ad tedijicandam, 2. 
 
 how many may be put in one writ, 1 
 service of, 4. 
 subpoena duces tecum, 3.. 
 before commissioners of bankrupt, 13. 
 
 expenses must be tendered, 14. 
 before commissioners of inclosure, 14. 
 before court-martial, 14. 
 before magistrates, 14. 
 in criminal cases, 8. 
 
 subpeena ad testificandum, 8. 
 
 service of subpeena in diflerent parts of the king- 
 dom, 9. 
 process in case the witness refuse to attend, 9. 
 witness cannot refuse to attend, though expenses not 
 
 tendered, 13. 
 recognizance, 8. 
 
 witness for prisoner, formerly not sworn, 21 , n. 
 habeas corpus ad testificandum, 5. 
 when the writ lies, 5. 
 how sued out and served, 5. 
 for prisoners to come before commissioners, 6. 
 or before court-martial, 6. 
 or sittings at Nisi-Prius, 6. 
 or before justices of great sessions in 
 
 Wales, 6. 
 or county palatine of Chester, 6. 
 application for writ of, 5. 
 expense of witness, in civil cases, 6. 
 
 coming from abroad, 7. 
 compensation for loss of lime, 7. 
 expense of witness in criminal cases, 9. 
 felonies, 9. 
 misdemeanors, 12. 
 privilege of witness, from arrest on trial, 4. 
 when, 4. 
 how long, 4. 
 before arbitrator, 6. 
 before insolvent debtors' court, 5. 
 before court-martial, 5. 
 in going, staying, aad returning, 4. 
 proceedings against, for non-attendance, 7. 
 attachment, 7.
 
 590 INDEX TO VOL. I. 
 
 ATFENDANCL— continued. 
 
 action on cnae, for damages, 7. 
 or on Stat. 5 Eliz., 7. 
 
 ATTESTING WITNESS 
 
 may impeach e.tecution of deed or will, 41, SOS. 
 character of attesting witness deceased, SOS. 
 proof of writings by, 464, 465. 
 
 cannot be objected to, as interested, by one who asked bim to at- 
 test, knowing his interest, 466. 
 proof by, when waived, 466. 
 what excuses absence of, 473, 473, n. 
 hand-writing of, when proved, 466, 473. 
 whether proof of identity of parties also necessary, 475. 
 interested before execution of deed, 476. 
 
 after execution of deed, 473, 466. 
 
 ATTORNEY. And sec tit. Counsel. 
 
 proof of being by book from master's office, 414. 
 
 admission of party being, 227. 
 
 adnaission by, when evidence against his client, 105. 
 
 of the execution of an instrument, evidence of ita exe- 
 cution, 466. 
 for purpose of dispensing with proof, evidence, 
 
 105, 
 made in course of conversation not for such purpose, 
 not admissible, 105. 
 propositions made by, respecting a demand, are evidence, 
 106. 
 
 not to be proved by attorney, 106. 
 when sufficient proof of being attorney of party, 106. 
 confidential commtmicaiion not admissible, 140. 
 not compellable to produce deed deposited with him, in actions 
 
 between third parties, 141. 
 nor will copy of such deed, furnished by hini, be admitted, 
 
 141. 
 note, supposed to be forged, received from client, not to be pro- 
 duced in evidence, 142. 
 what facts he may be examined to, 145. 
 
 may be examined as to opinions given on matters of fact, 147. 
 privilege of, extent of rule, 143, 144, 145. 
 the privilege is that of the client, 141. 
 waiver of privilege of, by client, 141. 
 
 bill delivered, not conclusive against additional item, 
 108. 
 
 ATTORNEY, LETTER OF, 
 
 deed executed under power of attorney — power must be produc- 
 ed, 104. 
 
 secondary evidence of, 452. 
 by corporation, to deliver a deed, 468.
 
 INDEX TO VOL. I. 
 
 AUCTIONEER, 
 
 paper delivered by, when requiring stamp, 225. 
 
 declarations by, not admissible to vary conditions of sale, 
 560. 
 
 AUDITOR'S BOOK, 415. 
 AUTHORITY, 
 
 general authority to agent, 104. 
 
 to sign bills of exchange, 104. 
 
 to subscribe policies, 104, 105. 
 deed executed under power of attorney, 104. 
 AVERMENT. See Variance. 
 
 what immaterial, 205. 
 
 immaterial need not be proved, 205. 
 
 where it may be struck out, 206, 207. 
 
 in indictment, when to be proved, 207. 
 
 matter of inducement need not be strictly proved, 206. 
 
 591 
 
 AWARD, 
 
 evidence, when, and when conclusive, 380. 
 between what parties, 380. 
 
 not evidence as to matters not inquired into, 334, 
 331. 
 under act of parliament how proved, 400. 
 
 on plea of wo such award, matter, dehors the deed, is not admis- 
 sible, to vacate the award, 170. 
 proof of submission and execution of award, 399. 
 proof of submission cf ail parties, 400. 
 
 B. 
 
 BAIL 
 
 BAILIFF, 
 
 BANK-BOOK, 
 
 not competent witness for principal, 136. 
 how made witness, 136. 
 
 proof of being, 105. 
 
 proof of his acting under authority of sheriff, 106. 
 not competent in action against sheriff, to prove his own endeav- 
 our to arrest, 59. 
 
 evidence to prove transfer of stock, 414. 
 
 BANKRUPT. See tit. Assignees, Commissioners. 
 
 attending before commissioners, when protected from ar- 
 rest, 5. 
 
 BANKRUPTCY. See tit. Assignee. 
 
 proof of, by admission, 299, 228, 9. 
 notice of, in Gazette, 408. 
 B.\RGAIN AND SALE, 
 
 enrolment of, 461, 
 
 indorsement of, evidence, 387.
 
 592 INDEX TO VOL. I. 
 
 BARGAIN AND SXLT.— continued. 
 
 endorsement of date of, 387, 1C4, n. 
 of freehold interest, 46S. 
 
 copy of enrolment of, 463. 
 of ch.nttcl interest, 462, 464. 
 
 copy of enrollment of, 461, 464. 
 execution of, proof of, 464. 
 
 BARON AND FEME. See tit. Husband and Wife. 
 
 BARON (Court.) See tit. Manor Court. 
 
 Judgment of, proof of, 396. 
 proceedings in, ns between whom, 417, 
 rolls of, 417. 
 
 ancient writings to prove custom, 417, 
 
 though not signed by a tenant, 417 
 
 inspection of, 429, 430. 
 
 proof of, 424. 
 
 BARRATRY, 
 
 conviction of, cause of incompetency, 28. 
 
 BASTARDY, 
 
 appeal against order of, 86. 
 
 rated inhabitant, competent witness, 123. 
 married woman may prove the crim. con., 87. 
 
 cannot prove want of access, 87, 241. 
 whether a man is compellable to acknowledge himself the 
 
 father. 276. 
 child born after divorce a mcnsa el thoro, presumed to be iilegit- 
 mate, when, 159, 197. 
 
 presumption of legitimacy, 158. 
 declarations of husband or wife as to legitimacy of child, 
 241. 
 
 of husband as to legitimacy of wife, 239. 
 BATTERY. See tit. Assault and Trespass. 
 BENEFIT. See tit. Interest and witness. 
 
 direct, disqualifies a witness, 59. 
 contingent, will not disqualify, 47. 
 
 BENEFIT OF CLERGY. 
 
 effect of, in restoring competency, 32. 
 
 proof of taking, 32. 
 
 who entitled to, without burning in the hand, 34. 
 
 BIGAMY, 
 
 prosecution for, 
 
 first wife not competent to prove marriage, 84. 
 consent of parents must be proved, 199. 
 registration of marriage need not be proved, 410. 
 sentence of divorce or of nullity of marriage is a bar to, 
 
 346. 
 but sentence of jactitation is not a bar to, 343.
 
 INDEX TO VOL. I. 593 
 
 BIGAMY — continued. 
 
 second wife competent witness, after proof of first marriage, 
 S4. 
 exception in the stat. of, 197, n. 
 
 where eithef party beyond sea for seven years, 197, n. 
 in case of divorce, 345. 
 
 BILL IN CHANCERY, 
 
 when evidence, and of what, 358. 
 not evidence of pedigree, 359. 
 
 situation of parties to be proved by extrinsic evidence, 359. 
 proof of, 392. 
 BILL OF EXCEPTIONS, 
 
 what and by whom to be had, 311. 
 time of tendering, 312. 
 on trial at bar, or at nisiprius, 311. 
 not allowed on trial of feigned is&ue, 312. 
 not in criminal cases, 311. 
 not at quarter sessions, 312. 
 lies only where writ of error lies, 312. 
 when waived by bringing writ of error, 313. 
 BILL OF EXCHANGE, 
 
 alteration of, when it makes a new stamp necessary, 511, 512, 513, 
 
 516. 
 parol evidence not admissible to vary, 555. 
 payee and endorser, competent to prove bill, purporting to be drawn here, 
 
 drawn abroad, 43. 
 co-partner competent to prove that the partner who drew the bill had no au- 
 thority, 67. 
 BILL OF LADING, 
 
 evidence of property in consignee, when, 256. 
 BILL OF PARTICULARS. See Particular, Promissory J^Tote, Interest. 
 BILL OF SALE OF SHIP, 
 
 alteration in, its effect as to stamp, 517. 
 BIRTH, 
 
 time of, proved by declaration of deceased parent, 240. 
 
 by the declaration of surgeon who attended, 240, 
 256. 
 place of, cannot be so proved, 241. 
 BISHOP'S REGISTER. 
 
 blank in, supplied by parol, 540. 
 
 BLANK, 
 
 not necessary to prove filling up, at the time of execution, 
 
 466. 
 parol evidence to suppl/", when, 540. 
 supplied in a presentation, 540. 
 BONA NOTABILIA. See tit. Administration, Probate. 
 
 Vol. I. 75
 
 594 
 
 INDEX TO VOL. I. 
 
 BOND See Debt, Deed, J\'on est factum, ^-c. 
 
 proof of execution of, by subsciibing witness, 476. 
 proof of identity of party, wiiether necessary, 475. 
 execution of, according to the custom of a foreign country, may be 
 
 proved, 467. 
 obligee cannot compel production of copy of, 43S. 
 condition in, not varied by parol, 54S. 
 
 BOND SECURITY, 
 
 for administrator, competent, when, 52. 
 
 BOOK OF ACTS, 398. 
 
 BOOK, 
 
 private, 
 
 of rector deceased, when evidence, "^60. 
 of corporation, when evidence, 422. 
 
 custody of, 422. 
 of tradesf'ian, when evidence of delivery of goods, 263. 
 of agents, 438. 
 notice to produce, 439. 
 time for calliug for, under notice, 441. 
 rule for production, 441. 
 public, 
 
 Domesday-book, 403. 
 
 filazer's hook. 390. 
 
 day-book of christenings, 416. 
 
 when evidence to contradict original book, 416, 
 of Bank, to prove transfer of stock, 414 
 of master's office, to prove being attorney, 414. 
 of navy office, to prove death of a sailor, 413. 
 of auditor's office, as to leases, 415. 
 officer who made the entries need not be called, 260. 
 of parish, for copies of rates, 413. 
 
 for recording indentures, 413. 
 register to prove marriage, &c. 408. 
 vestry-book made by churchwardens, 414. 
 
 to prove election to parish office, 414. 
 to prove right to a pew, 414. 
 of impropriator, when evidence, 260. 
 legcr-book of ecclesiastical court, 398. 
 herald's books, 421. 
 
 of prison, to prove time of commitment, 414. 
 or of discharge, 414. 
 not to prove the cause, 414. 
 authenticity of, 416. 
 log-book of ship to prove time of sailing, 414. 
 poll-book at election, 4! 5. 
 Lloyd's books, evidence of capture, 414. 
 not evidence of notice, 4I.'J
 
 INDEX TO VOL. I. 595 
 
 BOOK — continued. 
 
 official paper at the custom-house, containing an account of 
 
 ship's cargo, 415. 
 
 office booli of secretary of bankrupts, 415. 
 
 transcribed by officers of excise, 415. 
 
 from office of clerk of peace, containing enrol nents of depu- 
 tations, 4IG. 
 
 of Fleet marriages, 410. 
 
 of foreign chapel, 411. 
 
 of baptisms in Guernsey, 411. 
 
 inspection of public book, 428, et seq. 
 
 when not compoUed, 432. 
 
 mode of olitaining, 433, 444. 
 
 proof of entry in, by examined copy, 226. 
 
 day-book of prison, when evidence, 414. 
 BORROWER, 
 
 of money, competent to prove usury, 51. 
 BOUNDARY, 
 
 hearsay evidence of, 
 
 hearsay of parishioners, evidence, 250. 
 
 perambulations of, evidence, 249. 
 
 on questions of district boundary, inhabitants not incompetent, from 
 
 being rated, 128. 
 survey as to, 254. 
 BRANDING, 
 
 in the hand for felony, 32. 
 
 benefit of clergy without, when, 33. 
 
 competency of witness restored by it, 32. 
 
 proof of the branding, 32. 
 
 other punishment, in lieu of, 33. 
 
 transportation, 33. 
 
 fine, 23. 
 
 whipping,'33. 
 BREACHES, 
 
 of duty, burthen of proof, on whom thrown, 195. 
 BRIBERY, 
 
 at election, information on statute against, 41. 
 
 party bribed, a competent witness, when, 41. 
 
 unstamped note given for bribe, evidence, 518. 
 of witness, not to give evidence, 28. 
 
 BRIDGE, 
 
 prosecution for not repairing, 170. 
 
 proof of repairs by private persons, when admissible, 170. 
 inhabitants of county, town, &c. are competent, on an indictment 
 against a private person or a corporate body, 126. 
 BROKER. See tit Agent. 
 
 of policy, competent, though also underwriter, 47.
 
 696 
 
 INDEX TO VUL. 1 
 
 BROKER— coidinued. 
 
 not competent, in action against principiil, to disprove liin own negli- 
 gence, 56. 
 BULL OF POPE, 
 
 when evidence, 421. 
 BURGESSES, 
 
 admission of, when requiring several stamps, 509. 
 BURGLARY, 
 
 indictment for burglary and for larceny, 
 
 if no burglary is proved at the time of the supposed burglary, 
 evidence of a larceny on a former day is not admissible, 178. 
 charge of, in house of J- D. with intent to steal goods of J. W. , proof 
 
 that the goods belonged to J. D. is a variance, 207. 
 prisoner may be acquitted of the burglary, and found guilty of the 
 larceny, 203. 
 BURNING IN THE HAND. See Branding. 
 
 BURTHEN OF PROOF, 
 
 on negative averments, 195. 
 
 on charge of breach of duty, 195. 
 
 on fact peculiarly within the knowledge of the party, 198. 
 
 CAMDEN, 
 
 history of, whether evidence of a private custom, 423. 
 CAPTAIN, 
 
 of a ship, competent to speak to destination of ship, 49. 
 
 not competent as to deviation, 49. 
 when competent, 66. 
 CAPTION, 
 
 a neces33ry part of record, 31. 
 CARRIER 
 
 may prove amount of money delivered to his servant, on statute of 
 hue and cry, 70. 
 
 witness to prove delivery of goods, 129. 
 
 effect of payment of money into court, in action against, 189. 
 
 receipt of goods by stamp, 525. 
 CASHIER, 
 
 of bank of England, competent to prove forgery of bank note, 122. 
 CERTIFICATE. 
 
 allowance of, entered in official books of secretary of bankrupts, 416. 
 of conviction, 381. 
 
 commissioners, 397- 
 discharge of insolvent, 382. 
 enrolment of fine, 382.
 
 INDEX TO VOL I. 597 
 
 CERTIFICATE— co;j/t7i«eci. 
 
 of justices, as to repair of road, 882. 
 the king, under sign manual, 381. 
 letters of administration, 398. 
 minister abroad, as to marriage, SS2. 
 ordinary, as to legality of marriage, S-12. 
 parish, signed by three officers, sealed by two, 471. 
 of settlement, execution of, 471. 
 
 proper custody of, 483. 
 protest on bill of exchange, 382. 
 secretary of war, 382, 
 vice-consul abroad, 381. 
 
 writ of, for removing a record, 384. 
 
 CERTIORARI, 
 
 CHALLENGE, 
 
 of juror, on account of kindred, 17. 
 CHANCERY. See tit. Answer, Bill, Depositions. 
 
 decree, evidence against whom, and of what, 838. 
 proof of, 358. 
 previous proceedings, when to be proved, 393. 
 of ancient decrees, 393. 
 bill, when evidence, and of what, 858. 
 not evidence of pedigree, 359 
 Proof of, 392. 
 
 CHARACTER, 
 
 infamy of, when incapacitates a witness, 27. 
 
 of party to suit, examinable only when put in issue, 176. 
 
 in an action to set aside a will, for fraud committed by defend- 
 ant, evidence of his good character not admissible, 176- 
 nor in an information for keeping false weights, 176. 
 on trial for rape, of prosecutrix's character, how far inquirable 
 
 into, 176. 
 on trial for assault with intent to commit a rape, how far, 176. 
 
 of witness, how impeached by general evidence, 291. 
 not by proof of particular acts, 291. 
 not by the party producing him, 309. 
 how supported, if attacked, 291, n. 
 of deceased witness to a will, if impeached, may be supported 
 
 by general evidence, 308. 
 of prisoner, 177. 
 general, 177. 
 
 with reference to nature of charge, 177. 
 in trial for high treason, 177, 178. 
 
 how far the conduct of prisoner, on former occasions, is ex- 
 aminable. 177. 
 acts and declarations of, when evidence for him, 177.
 
 598 INDEX TO VOL. I. 
 
 CHARTER, 
 
 explained by usage, wlien, 540. 
 presumed from IcDgth of possession, 161. 
 
 CflARTER-rARTY, 
 
 not to be contradicted or varied by parol evidence, 655 
 
 CHARTULARY, 
 
 aneient, as evidenco of endowment, 459. 
 transcript in, when evidence, 460. 
 from what possession it must come, 479. 
 
 CHEAT, 
 
 in prosecution for, the party cheated is competent, 50 
 
 CHH^DREN, 
 
 when competent witnesses, 19. 
 
 their account without oath, not admissible, 20. 
 
 confirmatory evidence, 20. 
 
 trial put off, in order to teach the nature of an oath, 19. 
 
 CHIROGRAPH, 
 
 of fine, evidence of the fine, 387. 
 
 CHRONICLE, 
 
 when evidence, 423. 
 of speed, when evidence, 423. 
 CIRCUMSTANTIAL EVIDENCE. See Presumptive Evidence- 
 \ nature of, 155. 
 
 compared with direct, 67. 
 when to be received, 156. 
 
 CIVIL LAW, 
 
 grounds of incompetency by tliat law, 147, n. 
 rules respecting credibility, 148 
 
 CLERGY, 
 
 benefit of, abolished, 34. 
 
 proof of, 32. 
 CLERGYMAN. Bee Parson. 
 CLERK OF THE PEACE, 
 
 enrolment of deputations by, 2IG. 
 
 discharge of insolvent, recorded by, 219, 382. 
 
 CO-CONSPIRATOR, 
 
 acts and declarations by, when evidence against others, 94, 
 
 95, 97. 
 declarations not connected with general plan, 97. 
 
 CO-DEFENDANT. See Defendant. 
 
 in general incompetent for another defendant, 73, 74. 
 competent, when and when not, 73, 74. 
 pleading bankruptcy, incompetent, 74. 
 
 after suffering judgment by default, when, 74. 
 
 after nolle prosequi entered, 74. 
 
 on joint indictment against several, 74. 
 
 in action on joint contract, 74. 
 
 in trover, 75.
 
 INDEX TO VOL. I. 599 
 
 CO-DEFENDANT— coji/f/JMeJ. 
 
 in trespass, 73, 75. 
 in ejectment, 76. 
 when verdict of acquittal taken for, before opening case as to the 
 
 rest, 74. 
 in prosecution for Q?sault, after submitting and paying fine, 
 74. 
 made defendant by inistalie, to be tai<en off record, 76. 
 when arbitrarily joined, &c. und noihing proved against him, 
 
 73. 
 answer of, to bill, not evidence against other defendants, 362 
 
 COGNOVIT 
 
 need not be stamped, 526. 
 
 otherwise, if it contain an agreement, 526. 
 
 COLLECTOR 
 
 of taxes, how proved to be such, 226. 
 of tolls, 227. 
 
 COLLEGE, 
 
 sentence of expulsion by, when conclusive, 857 
 
 COLONIAL COURT, • 
 
 seal of, how proved, 899. 
 
 COLONIAL LAWS, 
 
 proof of, 402. 
 
 COMMERCIAL REGULATIONS, 
 
 of foreign state, how proved, 402. 
 
 COMMISSION 
 
 of bankrupt proving under, does not admit its valididy, 107. 
 public, 404, 406. 
 
 for inquisitions, 374, 375. 
 
 proof of, 392. 
 in the army, not proved by Gazette, 408. 
 
 COMMISSIONERS 
 
 of bankrupt. See tit. Assignee, Bankrupt. 
 may compel witnesses to attend, when, 13. 
 may examine bankrupt's wife, 80. 
 
 witness attending before, protected from arrest, when, 5. 
 prisoner, how brought before, as witness, 6. 
 by act of parliament, 
 
 sentence of, when conclusive, 356. 
 of excise, 
 
 condemnation by, conclusive of right of seizure, 355. 
 depositions before, in presence of the other party, and signed 
 ♦ by witness, evidence after the witness's death, 378. 
 
 of inclosure, ^ 
 
 may summon witnesses, when, 14,
 
 600 INDEX TO VOL. I. 
 
 COMMISSIONERS— co«/Jnued. 
 
 under seal of the Court of Exchequer, 375. 
 under order of House of Commons, 875. 
 
 COMMITMENT 
 
 of prisoner, proved by prison-book, 414. 
 of witness by coroner or justice, 8. 
 
 in case of his refusing to be bound over, &c., 8. 
 
 COMMITTITUR, 
 
 not supplied by proof of day-book of prison, 414. 
 COMMON. See tit. Custom. 
 by custom, 
 
 other commoners incompetent, if custom the same, 57. 
 
 action for disturbance of, extent of right, 211. 
 
 ancient writings, evidence of right of, 418. 
 
 proof of by hearsay, 249, 252. 
 
 old rent-rolls and counterparts of leases evidence, 253. 
 
 though possession cannot bespoken to under them, 
 253. 
 depositions when evidence, 364. 
 verdict betv^'een other parties evidence, 328. 
 hearsay of parishioners admissible, 25fl. 
 by prescription, 
 
 not proved by hearsay, 251. 
 
 averment of levancy and couchancy, proof of, 211. 
 
 hearsay, evidence of a prescriptive right, abridging a general 
 
 right, 252. 
 though general right not set out on the record, 252. 
 others claiming under, competent, 58. 
 proof of right of common for sheep and cows, will support a claim for 
 sheep only, 211. 
 
 COMMONER, 
 
 claiming under the same custom, not competent, 57. 
 competent, as to prescriptive right of common, when, 68. 
 
 COMMON RECOVERY, 
 
 proved by deed to make a tenant to the writ of entry, when, 392. 
 COMPARISON, 
 
 of hand-writing, 490. 
 
 in case of ancient writings, 491. 
 
 COMPENSATION, 
 
 to witnesses in civil cases, 6. 
 
 for "expenses, 6. 
 
 for Joss of time, 7. 
 to witaesses in criminal cases, 9, 12. 
 
 COMPETENCY. See tit. Witness. 
 
 difference between, and credibility, 17, 18, 27. • 
 
 how restored, 31.
 
 INDEX TO VOL. I. gQl 
 
 COMPOSITION, 
 
 deed, when requiring several stamps, 508. 
 
 real, for tithes, not presumed from usage alone, 163. 
 
 for tithes, proved hy admission, 229. 
 
 COMPROMISE, 
 
 offer of, when an admission, 108, 109. 
 
 offer to pay, under compromise, not evidence as an admission of a 
 
 debt, 108. 
 admission o.*" acceptance, or signature, by a party, evidence against 
 
 him, though made during a treaty, 109. 
 
 CONDEMNATION, 
 
 sentence of, in. Rem, in Exchequer, its effect, 354. 
 i.'i personam, 354. 
 for adulterating spirits, 354. 
 by commissioners of excise, 355. 
 in court of admiralty, 346. 
 sentence of foreign courts of admiralty, conclusive evidence, 347. 
 
 conclusive of what, 348. 
 of goods on one statute, not evidence as to offence on another statute, 
 
 355. 
 when not conclusive, 349. 
 when not admissible, 349. 
 sentence of other foreign courts, 349. 
 when conclusive, 350. 
 
 CONDITION, 
 
 in deed, 
 
 parol evidence not admissible to vary, 548. 
 of sale, 
 
 not varied by declarations of auctioneer, 560. 
 
 CONFESSION 
 
 of prisoner evidence against him, 110. 
 
 voluntary confession. 111. 
 
 in consequence of stranger interposing. 111. 
 
 under mistake. 111. 
 
 after caution by magistrate, 112. 
 
 to constable, 112. 
 
 upon examination by justice, 115. 
 
 not evidence against others, 115. 
 
 bad practice in the earlier state trials, 115, n. 
 
 to be taken altogether, 116. 
 
 subscription of by prisoner, 114. 
 
 by magistrate, 115. 
 what confessions not considered voluntary, 111. 
 under threat or promise, not evidence. 111. 
 
 any subsequent confession under the influence of such former 
 admission is not evidence, 112. 
 
 but discovery, in consequence of, may be shown, 116. 
 
 Vol. I. 76 .
 
 602 INDEX TO VOL. 1. 
 
 CONFESSION— coiiiinued. 
 
 regularly to be taken in writing, 113. 
 
 in the words of the person as nearly as may be, 113. 
 parol evidence of, when admissible, 113. 
 examination of prisoner on oath, not admissible, 113. 
 
 if it purport to be on oath, it cannot be shown to have been 
 without oath, 113. 
 statement of defend:int, before a committee of the House of Commons, 
 
 evidence against him. 111, n. 
 confession in high treason, 117. 
 
 proved by two witnesses, sufficient to convict, 117. 
 confirmatory evidence, when proved by single witness, 118. 
 evidence of collateral diets, 118. 
 
 sufficient to convict, if proved by a single witness, when the overt 
 act is a direct attempt against the life of the king, 118. 
 on death-bed, 235. 
 
 of witness to a will, evidence against the will, 236. 
 proof of confession, 119. 
 
 CONFIDENTIAL COMMUNICATION. See also tit. Attorney. 
 
 between counsel or attorney and client, privileged, 140. 
 
 deed deposited with attorney, not to be produced by him^ 
 
 141. 
 interpreter, or agent, between attorney and client, cannot reveal, 
 
 144. 
 communications between friend and friend, not privileged, 
 
 144. 
 to medical persons, not privileged, 144. 
 oath of office as to secrecy, how understood, 145. 
 official communications privileged, 284. 
 
 CONFIRMATION, 
 
 of child's testimony, 20. 
 of accomplice, 41. 
 rule as to, 41, 42. 
 
 CONFIRMATORY EVIDENCE, 
 
 in corroboration of witness impeached, 306, 307. 
 
 CONSENT, 
 
 on indictment for coursing deer " without consent of owner,'''' proof 
 as to want of consent, 196. 
 
 CONSIDERATION, 
 in deed, 
 
 cannot be contradicted by parol, 549. 
 another may be proved, 549. 
 
 though no consideration stated, 549. 
 where divers considerations stated, 549. 
 different consideration may be shown in case of fraud, &c , 
 551.
 
 INDEX TO VOL. I. 
 
 CONSIDERATION— co«<t/2u<?(i. 
 
 fraud in deed not to be shown by party to the deed, 552. 
 of promissory note, 
 
 letter by payee to ni.iker, when evidence as to the considera- 
 tion, 232. 
 
 603 
 
 CONSPIRACY, 
 
 CONSTABLE, 
 
 CONSTAT, 
 
 CONTEMPT, 
 
 CONTRACT. 
 
 on indictment for, wife of one defendant not competent for the 
 
 rest, 81. 
 acts, declarations, letters, papers, &c. by co-conspirator, when 
 
 evidence against the rest, 94, 95, 97. 
 proof of other acts besides those laid in the indictment, vhen ad- 
 missible, ISO. 
 
 whole conduct of the prisoner, at the time of the supposed 
 
 conspiracy, to be enquired into, ISL 
 his conduct at other meetings, which have not been inquired 
 
 into against him, cannot be shown in his favor, 182. 
 what the prisoner said, before he went to the meeting in 
 question, is not evidence for him, 182. 
 in unlawfully assembling, — what facts material to bo proved, 
 
 what immaterial, 180. 
 conviction of, renders incompetent, when, 29. 
 
 proof of acting, evidence of appointment, 226. 
 
 of letters patent, when evidence, 463. 
 
 attachment of witness for, 7. 
 
 when granted, 7. 
 commitment for, in refusing to be bound over, &c. 8. 
 See tit. Agreement and Statute of Frauds. 
 
 of marriage, may be proved by unstamped letters, 525. 
 between master of ship and seamen, to be in writing, 556. 
 
 not void, though not in writing, 556. 
 
 if in writing, not to be varied by parol evidence, 556. 
 
 to be produced by the master, 437. 
 mercantile, 
 
 when requiring several stamps, 511. 
 
 explained by usage, when, 556. 
 of service for year, wages due in proportion to the time of ser- 
 vice, 558. 
 dormant partner, wlien competent to prove contract, 49. 
 variance in proof of, 207. 
 
 in action of assumpsit, when, 20S. 
 
 in action of tort, 208. 
 
 how much of contract to be stated, 209. 
 written, not to be varied by parol evidence, 560.
 
 (504 INDEX TO VOL. I. 
 
 CONVICT, 
 
 CONVICTION, 
 
 CO-OBLIGOR, 
 
 dying declaration of, not evidenco, 23G. 
 
 certificate of, when evidence, 381. 
 
 copy of, when to be given to tho convicted party, 42G. 
 
 record of, in personam, 354. 
 
 in rem, 354. 
 on game laws, 198. 
 
 party informing need not disprove the several qualilicationa, 19J. 
 by magistrate, 
 
 when to be drawn up, 427. 
 returned to sessions, 427. 
 on information of injured party, not evidence in action brought by 
 
 same party, 339. 
 effect of, in evidence, 338, 339. 
 for assault, 
 
 record of, on plea of guilty, evidence in action for same as- 
 sault, 338. 
 for perjury, 339. 
 
 far bigamy, evidence against legality of marriage, in a civil ac- 
 tion, 338. 
 for not repairing a road, evidence of liability, 331. 
 of principal, evidence against accessary, when, 331. 
 although judgment drawn up irregularly, 331, n. 
 in criminal cases, whether evidence in civil, 337. 
 not conclusive as to time of committing the offence, 214. 
 witness incompetent on conviction, when, 28. 
 proof of judgment necessary, 30. 
 founded on proceedings in other courts, 31. 
 
 incompetency of, on ground of interest, 62. 
 when competent, 67. 
 competent after release, 476. 
 
 CO-PLAINTIFF, 
 
 witness against another, 72. 
 
 COPY, 
 
 of record, 384. 
 
 under great seal, 384. 
 under seal of court, 385. 
 examined copy, 386. 
 
 proof of, 386. 
 office copy, 387. 
 
 in same cause and court, equivalent to a record, 387. 
 authenticated by proper officer, 387, 388. 
 of depositions, not evidence, in other courts, 388. 
 of record of acquittal, how and when to be obtained, 426, 426.
 
 INDEX TO VOL. I. 
 
 COPY — continued. 
 
 of judgment, by clerk of treasury, not evidence, 888. 
 of bond, obligee not entitled to, 43S. 
 examined copy of, answer in Chancery, 361. 
 of deed enrolled by clerk of peace, 3SS. 
 
 of deed, or other writing, not evidence, when the original can bo 
 reduced, 218. 
 of memorial of registry of deed, 464, n. 
 
 of assignment of judgment, 464, n. 
 ( f annuity-deed, 464, n. 
 admission of secondary evidence, in the case of ancient private 
 
 writings, 457, 45S, 459. 
 duplicate original, or examined copy, when admissible, 445" 
 of probate, 397. 
 of book of acts, 398. 
 
 of ledger-book of ecclesiastical court, 398. 
 of parliamentary surveys, 405. 
 copy taken by machine, not evidence, 446. 
 of writing in possession of opposite party, 458, 459. 
 of entries in public books, 424. 
 rule to obtain copies of, 429. 
 
 COPYHOLD, 
 
 not devisable, within the statute of wills, 494, n. 
 devise of, good as a declaration of uses, 494, n. 
 
 attestation and signature not necessary, 494, n. 
 unless required by the terms of surrender, 494, n. 
 surrender, mistake in, shown by parol evidence, 540. 
 to uses of will, not now necessary, 494, n. 
 
 COPYHOLDER. See tit. Copyhold, Manor-Court. 
 inspection of court rolls by, 429- 
 paper signed by, evidence as to customs, 257. 
 declarations of, against interest, 257. 
 
 COPYHOLDER'S COURT, 
 
 proceedings in, how proved, 396. 
 rolls of, evidence, 417. 
 
 CORONER. See tit. Depositions, Inquisition. 
 may bind over witness to appear, 8. 
 
 or commit him if he refuse, 8. 
 depositions before, 371. 
 inquest of, evidence of lunacy, 336. 
 
 CORPORATION, 
 
 parties to a suit, in a corporate capacity, whether competent, 69,71 
 
 execution of deed by, 468. 
 
 books of, evidence between the members, 422. 
 
 evidence of public right, 422. 
 
 not evidence against strangers, 422. 
 
 605
 
 606 INDEX TO VOL I. 
 
 CORPORATION— co;i<i;(ue(i. 
 
 boolcs of entries of payment of tolls, 422. 
 of payment of tithes, 422. 
 entry in, to be made by proper olliccr, 422. 
 proper custody of, to be shown, 422. 
 corporator may produce, 483. 
 inspection of, 430, 431. 
 
 right of inspection, confined to members of corporation, 431. 
 penalty for refusing inspection, when, 430, n. 
 deed of, does not require delivery, 468. 
 
 aflixing common seal to, when tantamount to a delivery, 468. 
 freemen of, how rendered competent, 136. 
 
 incompetent, when, 66- 
 officer of, when competent, though liable to information, 51. 
 seal of, how proved, 386. 
 
 CORPORATOR, 
 
 when competent witness, 51. 
 admission by, 91, n. 
 
 COSTS. 
 
 person liable to, not competent, 59. 
 co-defendant, 59. 
 partner, 59. 
 
 drawer of accommodation bill, 61. 
 co-obligor, 62. 
 agent to discount a bill, 62. 
 
 for receiving money, 62. 
 Bherifi''s officer indemnifying, incompetent, 69. 
 prochein amy or guardian, 59. 
 party to the suit, 59. 
 bail not competent for principal, 59. 
 governors of poor house, if liable to costs individually, incompetent, 
 
 69. 
 competent if liable only in a corporate capacity, 69. 
 of prosecution when allowed, 10. 
 
 on taxation of, expense of witness from abroad allowed, when, 7. 
 expense of depositions taken abroad, not allowed, 15. 
 compensation for loss of time, 7. 
 proof of, by postea with the master's allocatur, 389, 339, n. 
 
 CO-TRESPASSER, 
 
 when a competent witness, 41, 47, 68, 73, 75. 
 admission by, when evidence against the rest, 93. 
 
 not competent for plaintiS', after judgment by default, 75. 
 COUNSEL. See tit. Attorney. 
 
 professional confidence with client, 140.
 
 INDEX TO VOL. I. 607 
 
 COVfiSEL— continued. 
 
 confidential communications not to,be disclosed, 141. 
 though proceedings finished, 141. 
 not in actions between third persons, 141. 
 nor on cross-examination, 147. 
 what communications privileged, 140, 145. 
 third person hearing the communication, may prove it, 145. 
 communications'to olher'persons not privileged, 144. 
 admissions by, whether evidence, 106. 
 retainer, book of, 142. 
 COUNTERFEIT MONEY, 
 
 prosecution fisr uttering, 
 
 proof of uttering fother counterfeit money when evidence, 
 179. 
 COUNTERPART, 
 
 of deed, 
 
 evidence againstjhe party signing, and his assigns, without notice 
 
 to produce the original, 443. 
 evidence when original lost, or destroyed, or in possession of oth- 
 er party, who lias^h^d notice^to produce, 457. 
 of lease, evidence upon right of common, 253. 
 
 COUNTY, 
 
 inhabitant of, competent on indictment for non-repair of bridge, 
 126. • 
 
 COURT. See Admiralty, Ecclesiastical Court, ^c 
 of exclusive jurisdiction, 
 
 judgment of, general rule as to, 340. 
 of inferior jurisdiction, 396, 427. 
 
 proceedings how proved, 393, "39 6. 
 
 party has a right to a copy, 427. 
 martial, may summon witnesses, 14. 
 
 prisoner brought before, as witness, how, 6. 
 
 witness attending before, privileged from arrest, 6. 
 
 proceedings before, cannot be produced, 287. 
 
 rule of, 388. 
 
 COURT-BARON, 
 
 judgment in, how proved, 396. 
 entries in rolls of, when evidence, 253, 417. 
 of customs, descent, &c., 418. 
 
 COURT ROLLS, 
 
 evidence of customary descent, 417, 418. 
 of customary tenure, 418. 
 ofright of fishery, 253. 
 
 COVENANT. See tit. Deed. 
 
 not to be construed by the party's acts, 396. 
 
 action of, against tenant, for non-repair of premises, plea of perrorm- 
 ance, admits partof deed set out, 171.
 
 608 INDEX TO VOL. I. 
 
 COYENAKT— continued. 
 
 sub-lessee of tenant niay prove good management of farm, 
 
 49. 
 to repair, plaintilTto prove breach of, 196. 
 
 COVERTURE, 
 
 on plea of, if it appear that the husband went abroad above sev- 
 en years before the commencement of the suit, defendant 
 ought to prove him alive within that time, 198. 
 
 CREDIBILITY, 
 
 diflerence between it and competency, 17, 18. 
 
 CREDIT, 
 
 of witness, how impeached, 291. 
 
 by proof of general character, 291. 
 not b}' proof of particular acts, 291. 
 by proof of contradictory statements, 293. 
 
 rules as to cross-examination preparatory to 
 such proof, 293, 296. 
 party not to discredit his own witness, 308, 309. 
 
 meaning of the rule, 309. 
 how supported, 306. 
 
 CRIMEN FALSI, 
 
 conviction of, incapacitates a witness, 28. 
 CRIMES, 
 
 what incapacitates a witness, 28. 
 CRIMINAL CONVERSATION, 
 
 action for, 
 
 letters of husband and wife, when admissible, 82. 
 
 CROSS-EXAMINATION. See Witness, Examination. ^ 
 
 as to. interest, 267. 
 
 as to verbal statements of witness on other occasions, 293. 
 as to written contradictory statements, 296. 
 as to collateral facts, 272, 291. 
 as to contents of letter, "^96. 
 as to contents of lost letter, 298. 
 
 what questions irrellevant, 273. 
 
 such questions, if answered, not to be contradicted, 272, 
 291. 
 person merely producing a deed, need not be sworn, 273. 
 
 not to be cross-examined, unless sworn, 273. 
 
 if sworn, he is witness for the other side, 273. 
 justice, producing an information, not subject to cross-examina- 
 tion, unless sworn, 274. 
 leading questions on cross-examination, how far allowed, 
 
 275. 
 questions, reflecting on the character, 278. 
 
 witness not compellable to answer, 280. 
 
 but may be properly asked, 282.
 
 INDEX TO VOL. I. 609 
 
 CROSS EXAMINATION— conhnweJ. 
 
 counsel cross-examining may look memorandum used by witness, 
 
 290. 
 power of cross-examining ns to contradictory Btatementa, generally, 
 
 or as to represeHtalions in writing, 299. 
 mode of re-examining a witness, after such crosa-examination, 304. 
 
 CUSTODY, 
 
 of old documents, 259, 479. 
 
 of appointment of overseer, 454. 
 
 of vicar's books, 260, n. (3.) 
 
 CUSTOM. 
 
 of manor, 173. 
 
 proof of custom in one manor, not evidence of custom in 
 another manor, 173. 
 of the country, proof of, 174. 
 as to time of quitting farm, in case of lease under seal, 554. 
 
 in case of parol lease, 554. 
 national, proof of, 423. 
 
 witness, claiming under the sarao custom, incompetent, 58. 
 customary right, not expressed in lease, 553. 
 to a heriot, 553. 
 to way-going crop, 553. 
 exercise of, when to be shown, 249, 418. 
 cannot be claimed, if inconsistent with lease, 554. 
 proof of, by hearsay, 249. 
 
 hearsay of deceased person, though he claimed under the same 
 
 custom, 250. 
 verdict, though between other parlies, 327. 
 
 depositions, not evidence against stranger to former suit, where 
 the same point is in issue, 246. 
 
 where the point in issue is not the same, they are evi- 
 dence, 246, 248. 
 paper signed by copyholders, 418. 
 court-rolls of manor, and ancient writings, 417. 
 proof of custom, in other parish or manor, not evidence, 173, 
 176. 
 
 otherwise, on a question of tenure in one of several con- 
 nected manors, 173. 
 variance in proof of, 211. 
 owner of property not competent to disprove a custom, if chargeable* 
 
 58. 
 entered on court-rolls, evidence of descent, 418. 
 
 CUSTOMARY ESTATES, 
 
 nature of, proved by entries on court-rolls, 418. 
 descent proved by entry on court-rolls, 418. 
 
 Vol. I. 77
 
 (JlO INDEX TO VOL. I. 
 
 CUSTOM-HOUSE, 
 
 official papers kept there, 415. 
 
 CUSTOM-HOUSE OFFICER, 
 
 acting Q3 such, evidence of appointment, 226. 
 See tit. Excise. 
 
 D. 
 
 DAMAGES, 
 
 former verdict, proof of, 328, 332. 
 date of acquittal, 214. 
 of judgment, 214. 
 of enrolment, 387, 464, n. 
 amount of damages, recovered in an action, how proved, 832. 
 DAY, 
 
 variance in proof of the time of committing an oflencc, 214. 
 
 DAY-BOOK, 
 
 when evidence to contradict an original book, 416. 
 of prison, when evidence, 414. 
 
 DEAF AND DUMB, 
 
 how to give evidence, 19. 
 DEATH, 
 
 abroad, evidence of, 197, 239. 
 
 presumed at the expiration of seven years, 197. 
 
 not proved by letters of administration, 343. 
 
 on issue as to the death of a particular person, the party asserting the 
 
 death has to prove it, 197. 
 death- bed declarations, 235. See tit. Dying. 
 
 DEBT. See tit. Bond, Deed, JVil debet, JVon est factum. 
 
 offer to pay, under compromise, not evidence as admission of, 
 
 108. 
 action of against witness on statute of Elizabeth, 7, 8. 
 action on foreign judgment, 352, 353. 
 
 ']ViAgmen\. prima facie evidence, 352, 353. 
 proof of judgment, 399. 
 
 DEBTOR, 
 DECEIT, 
 
 discharge of insolvent, how proved, 219. 
 
 action for, in misrepresenting a person's property, the person may 
 prove himself insolvent, 50. 
 DECLARATION. See lit. Admission, Evidence, Hearsay, 
 post litem motam, 241 
 part of res gesta, 231. 
 
 of accomplice, when evidence against his associates, 93, 94. 
 against interest, 255. 
 
 that certain goods are not witness's property, 257. 
 entries of principal, when evidence against surety, 258. 
 proof and authenticity of, 259. 
 by owner of estate, 256.
 
 INDEX TO VOL. I. g] J 
 
 DV:CL.\RATlOS— continued. 
 
 by owner of property, 257. 
 by copyliolder, 257. 
 chargo for work paid, 256. 
 by steward, &c. charging liimself, 255. 
 by collector, 255. 
 by master of vessel, 256. 
 not evidence, if the person alive, 259. 
 how proved, 259. 
 
 by occupier of land, as to extent of adjoining tenant's land, 258. 
 of husband and wife, not evidence for or against each other, 81. 
 
 as to marriage, 240. 
 of deceased busb;ind, as to legitimacy of wife, 239. 
 of wife, when evidence against husband, 85. 
 of deceased parent, to prove time of birth, 240. 
 not to prove place cf biilh, 241. 
 not to prove want of access, 241. 
 of deceased surgeon, as to time of birth, 24 J. 
 of relations as to pedigree, 238. 
 
 not evidence, if made by persons not related, 240. 
 or if the relative alive, 240. 
 of rated inhabitant, as to setllement, 72. 
 on death bed, 235. See tit. Dying Declarations. 
 
 DECREE, 
 
 in chancery, evidence against whom, and of what, 358. 
 proof of, 392. 
 
 previous proceedings, when to be proved, 392. • 
 
 in case of ancient decree, 393. 
 when used to prove extrinsic fact, 393. 
 lost decree, respecting tithes in London, proof of, 387. 
 may be proved by other evidence than copy, 387. 
 
 DEED. See tit. Writing, Attesting, Witness. 
 
 action upon. See tit Covenant, Debt. 
 
 production of, 448. 
 
 pr^ of, when party claims under instrument, 449. 
 
 in actions between landlord and tenant, 451. 
 
 in action against sheriff, 451. 
 recital in, when secondary evidence, 457. 
 ambiguity in, when and how explained, 531. 
 
 latent, 531. 
 
 patent, 538. 
 registry of, proof of, 218, 388. 
 execution of, in foreign country, 467. 
 
 by corporation, 468. 
 ancient, explained by usage, when, 540.
 
 612 INDEX TO VOL. I. 
 
 DEED— continued. 
 
 presumed from usage, when, 161. 
 
 proof of, when produced in consequence of notice, 448. 
 
 variance in proof of, 211. 
 
 loss of, how proved, 460. 
 
 copy of enrolment of, when admissible, 461. 
 
 recital in, evidence against whom, 457. 
 
 execution of, 
 
 under power of attorney, power to be shown, 104. 
 proved by subscribing witness, 464, 465. 
 subscribing witne.os necessary, though deed admitted, 
 465. 
 signing, proof of, 467. 
 
 under power of attorney, power to be produced, 466. 
 sealing, 467. 
 
 same seal used by several parties, 467, 471. 
 rule as to sealing by several, in deed under power, 471. 
 delivery, proof of, 467. 
 whit tantamount to, 467. 
 on another day, may be shown, 553. 
 by corporation, not required, 468. 
 subscribing witness may prove deed forged, 41. 
 
 cannot be objected to, as interested, by one who asked 
 him to attest, knowing his situation, 476. 
 subscribing witness not producible, execution how proved, 473. 
 what excuses his absence, 473. 
 proof of his handwriting, 473. 
 identity of party, 475. 
 party's signature, proof of, when sufficient, 475. 
 execution need not be proved, when, 477. 
 of deed, 30 years old, 477. 
 
 custody of, to be shown, when, 479. 
 of deed produced by rule of court, 483. 
 of deed pioduced by the other party, when, 483. 
 mistake in, when rectified in equity, 576. 
 
 how proved, 577. 
 parol evidence, not admissible to vary or add to, 548. 
 except in case of fraud, &c. 551. 
 another consideration may be shown, 549. 
 memorandum of payment, endorsed on deed, may be dis- 
 proved, 549. 
 averment of payment, in body of deed, is conclusive, 549. 
 party when compellable to produce, 435. 
 notice to party to produce, 439.
 
 INDEX TO VOL. I. G13 
 
 DEED — continued. 
 
 proof of deed in party's possession, 440. 
 
 possession of third 'persons, 440. 
 deed produced under notice, bow proved, 448. 
 notice when not necessary, 441. 
 counterpart of deed, evidence against party signing, 427, 443. 
 
 secondary evidence of deed when admissible, 452, 456, 457. 
 examined copy of deed, 458. 
 parol evidence of, 458. 
 
 DEFAMATION, 
 
 action for, 
 
 not necessary to prove the whole of the actionable words, 201. 
 
 admission of plaintilPs qualification, 227, 228. 
 
 when recessary to prove plaintiff's qualification, 22S. 
 
 DEFAULT, 
 
 judgment by, 
 
 in action against acceptor of a bill, admits the acceptance and suffi- 
 ciency of stamp, and that the bill is truly set out, 186. 
 in action for goods, sold, &c. it admits the sale, and something due, 
 
 only disputing the amount, 187. 
 after judgment by default, of one defendant, the plaintiflf may elect to 
 
 be nonsuited as to the other defendant, 186. 
 co-defendant, in prosecution for misdemeanor, not competent for the 
 other defendants, after default, 74. 
 
 in action on joint contract, not competent for other defendant, 75" 
 
 nor competent for the plaintiff, 75. 
 
 in trover, competent for other defendants, 75. 
 
 in trespass, not competent for plaintiff, 75. 
 
 in ejectment, competent for plaintifi", when, 76. 
 
 DEFENDANT. See Co-defendant. 
 
 admission of, 93. See tit. Admission. 
 
 discharged and made witness, when, 73, 74. 
 
 submitting to fine, on indictment for assault, may be witness for another 
 
 defendant, 74. 
 suffering judgment by default, when competent, 74. 
 
 in prosecution for misdemeanor, 74. 
 
 in action on joint contract, 75. 
 
 in trover, 75. 
 
 in trespass, 75. 
 
 in ejectment, 76. 
 if one defendant pleads bankruptcy, and the others plead the general 
 issue, he cannot give evidence for the rest, 74.
 
 INDEX TO VOL. I. 
 
 DEFENDANT— con/i««eJ. 
 
 in ejectment, how made witness, 76. 
 
 made defendant by mistake — m:iy be struck out, 76. 
 
 in an itifortnation, nolle prosequi entered, 74. 
 answer of one defendant not evidence ngainst anoliicr generally, 
 362. 
 
 DELIVERY OF DEED, 
 
 wh.it amounts to, 467, 368. 
 
 DEMAND, 
 
 particular of, under judge's order, 190. 
 form of, and effect, 190. 
 confines the party, when, 190. 
 inaccuracy in, when immaterial, 191. 
 delivery of, 193. 
 proof of, 193. 
 
 DEMURRER TO EVIDENCE, 
 what, 313. 
 
 form of drawing np, 315. 
 assessment of damages upon, 415. 
 facts admitted, 314. 
 
 counsel for the Crown not compellable to join, 314. 
 not allowed in the King's case, 314. 
 under the control of the court, 315. 
 
 DEPOSITIONS. See tit. Examinalions. 
 on interrogatories, 14, 395. 
 
 examination, how taken, 14. 
 
 by consent of parties, 15. 
 
 when admitted in evidence, 866, 394. 
 
 proof of, 395. 
 
 not evidence without commission, 395, 
 
 unless of ancient standing, 395. 
 to perpetuate testimony, 
 
 evidence, though questions leading, 365. 
 
 or witness interested, 363. 
 
 witness becoming interested after making, 364. 
 not evidence for or against a stranger in general, 327, 364. 
 
 on question of pedigree, when admissible, 243. 
 
 on question of custom, when, 246, 364. 
 post litem motam, rule as to, 241, 364. 
 
 point in issue not the same, deposition when evidence, 
 246. 
 
 ancient depositions by persons in a certain character, it must be pre- 
 sumed they were such, 246. 
 in Chancery, 
 
 evidence between whom, and when, 363. 
 not for or against a stranger, 364. 
 
 in question of pedigree, not evidence against a stranger, when 
 the same point is in issue, 243.
 
 INDEX TO VOL. I. .-i - 
 
 TiEVOSlTlONS— continued. 
 
 evidence of customs, tolls, &c., when, 364. 
 
 unless made post litem motam, 364. 
 
 or where hearsay admitted, 364. 
 not rejected, because on leading interrogatories, 365, 
 
 or because witness interested, 365. 
 rule as to admission of, after dismissal of bill, 365. 
 before answer put in, when evidence, 365 
 de bene esse, not evidence before answer put in, 365. 
 order for reading of, on trial at law, 363, S95. 
 
 when made, 366. 
 
 effect of, 363, 366. 
 
 proof of depositions, 338, 394, 396. 
 when bill and answer lost, 395. 
 proof of bill and answer, when necessary to roadin'^ of, 395. 
 
 not necessary, when defendant in contempt, 395. 
 ancient depositions, 395. 
 in Ecclesiastical Courts, when admissible, 378. 
 
 evidence in temporal Courts, 878. 
 
 between what parties, 378. 
 in what causes, 378. 
 before commissioners of excise, 
 
 evidence on appeal, between same parties, 378. 
 after death of deponent, 379, 
 before commissioners of bankrupt, 
 
 statutes respecting, 13. 
 before coroner, under stat. 7 G. 4, c. 64, 371. 
 
 must contain the effect of the evidence, 371. 
 
 to be certified together with the inquisition, 371. 
 
 need not be in presence of prisoner, 372. 
 
 evidence on trial of prisoner, when, 372. 
 
 proof of, 399. 
 before magistrate, under stat. 7G. 4, c 64, 367, 368, 
 
 in what cases evidence, 368. 
 
 how taken, 369, 
 
 in prisoner's presence, 368. 
 
 how certified and transmitted, 371. 
 
 taken in another country, 371. 
 
 need not be signed by deponent, 370. 
 
 deponent must be sworn, 370. 
 
 party charged, not to be sworn, 370. 
 
 evidence against prisoner, when, 370. 
 
 in misdemeanors, 368, 370. 
 
 in civil cases, 370. 
 
 in information for assault and robbery, when evidence in prose- 
 cutions for murder, 370. 
 
 in high treason, 370.
 
 (516 INDEX TO VOL I. 
 
 DEPOSITIONS— conW/iwe^i. 
 
 in petty treason, not sufficient to convict of the treason, but will 
 support a conviction for the murder, 370. 
 
 in case of misdemeanor, 7 G. 4, c. 64, 36S. 
 
 to be signed by the justice, 369. 
 
 evidence for prisoner to contradict witness, 871. 
 
 prisoner has no right to copy of, 427. 
 
 proof of, 399. 
 of pauper, as to settlement, 376. 
 of witness abroad, when evidence, 14, 367. 
 proof of party being abroad, 366. 
 of witness in India, 367. 
 
 in case of information or indictment, 867. 
 
 on cause of action arising in India, 367. 
 
 on bill for divorce, 15. 
 
 on prosecution of persons in public service, 15. 
 proof of disposition, 388, 394, 396. 
 
 when admitted under order of chancery, 363, 395. 
 
 office copy, not evidence in other courts, 388. 
 
 copy attested by judge's clerk, 388. 
 
 depositions in Chancery, evidence as admissions, or to contra- 
 dict, without proof of bill and answer, 395. 
 
 DEPRIVATION, 
 
 sentence of, by college, 356. 
 
 DEPUTATION, 
 
 enrolment of in office of clerk of peace, 416. 
 
 DEVISEE, 
 
 not competent to prove the testator's sanity, 65. 
 
 nor to attest a will, 65. 
 husband of, not competent to prove a will, 496. 
 
 DESCENT, 
 
 course of, in manor, proved by a customary, 413. 
 
 by ancient writings found among court-rolls, 417. 
 
 DIRECTOR OF POOR, 
 
 competency of, 69. 
 
 DISCHARGE, 
 
 of insolvent debtor, how proved, 219. 
 of prisoner, proved by prison books, 416. 
 
 DISFRANCHISEMENT, 
 
 of member of corporation, 136. 
 judgment of, 136. 
 
 DISTURBANCE OF COMMON, 
 
 extent of claim, 211. 
 
 DIVORCE, 
 
 child born after divorce a mensa, when presumed to be ilkgitimate, 
 197. 
 
 DORMANT PARTNER, 49.
 
 INOEX TO VOL. I (517 
 
 DOMESDAY BOOK, 
 
 account of, 403. 
 when evidence, 403. 
 
 DRAWER 
 
 of bill, competency of, 61. 
 
 DUCES TECUM, 
 
 subpoena, 8. See tit. subpana. 
 production of writings under, 3. 
 
 DUGDALE, 
 
 baronage of, not evidence to prove a descent, 423. 
 
 monasticon of, not evidence as to the order of a monastery, 423. 
 
 DUPLICATE ORIGINAL, 
 
 taken by copying machine, not evidence, 446. 
 of notice to produce, notice to quit, &c., 445. 
 of attorney's bill, 446. 
 of notice cf action, 446. 
 
 DYING DECLARATIONS, 
 
 adnjjssible in prosecutions for murder, 235- 
 principle of the rule, 235. 
 not evidence in civil cause, 236. 
 not in other prosecutions for robbery, 237. 
 of persons mortally wounded, 235. 
 of wife against husband, in case of murder, 84. 
 consciousness of danger to be proved, 235. 
 whether made in extremis, a question .'^or the court, 235. 
 evidence, though a subsequent statement may have been made in 
 
 writing, 237. 
 of criminal at time of execution, not evidence against an accomplice, 
 
 236. 
 of subscribing witness to a bond, as to its being forged, evidence, 
 236. 
 
 EASEMENT, 
 
 grant of, presumed from twenty years enjoyment, 163. 
 as against the reversioner, when, 1C6. 
 presumed from shorter enjoyment, 164. 
 
 ECCLESIASTICAL COURT. See Probate. 
 suit in, 
 
 number of witnesses to prove a fact, 155. 
 proof of temporal matter arising incidentally, 155. 
 depositions in, when evidence, 378. 
 sentence of, 336. 
 
 of nullity, or in affirmance of marriage, conclusive on ques- 
 tions of legitimacy, when, 836, 341, 342. 
 when conclusive on trial for polygamy, 345. 
 
 Vol. I. 7S
 
 618 INDEX TO VOL I 
 
 ECCLESIiWTICAL COVRT— continued. 
 
 in a cause of jactitation, evidence in ejectment, 342. 
 not conclusive, 343. 
 
 much less, in criminal prosecutions, 844. 
 indictment for forgery, 345. 
 bigamy, 345. 
 evidence between what parties, 342. 
 when conclusive as to all, 342. 
 impeachable for fraud, 341, 346. 
 
 between what parties, 346. 
 sentence offer fornication, not evidence, 836. 
 on validity of will, and right of administration, conclusive, 34S. 
 proof of sentence, 396. 
 
 sentence of ecclesiastical judge, when examinable, 357. 
 seal of, ou probate, need not be proved, 397. 
 
 ECCLESIASTICAL SURVEYS. See Survey. 
 
 EJECTMENT, 
 
 who the real parties in, 72. 
 
 entry of rents by owner, when evidence, 256. 
 
 not evidence for party claiming, 253. 
 sentence of jactitation evidence in, 341. 
 in order to exclude parol evidence of a tenancy, it is not enoagh 
 
 to prove that there is a written agreement, &c., 22L 
 award, when conclusive in, 380. 
 witness in, competency of, 63. 
 
 plaintiff having agreed to grant lease to witness, in case of 
 success in the cause, renders witness incompetent, 63. 
 against tenant in posse-ssion, 65. 
 
 witness called by defendant, to prove himself real tenant and 
 defendant to be his bailiff', incompetent, 65. 
 tenant in possession incompetent, 56. 
 landlord incompetent to prove rent due, in action against sheriff, 
 
 56. 
 heir apparent competent to prove title of land, 65. 
 co-defendant after judgment by default, competent to prove the other 
 
 in possession, 76. 
 co-defendant, how made witness for the other, 76. 
 one of several lessors, not compellable to give evidence for defendant, 
 
 72. 
 trespass for mesne profits, ^ 
 
 judgment after verdict, 
 
 when and upon what points conclusive, 330, 
 336.
 
 INDEX TO VOL. I. 6 1 ^ 
 
 ELECTION, 
 
 bribery at, information for, 41. 
 
 party bribed, competent witness, 41. 
 public right of, proved by verdict between other parlies, 321. 
 poll book, evidence, 415. 
 ELEGIT, 
 
 proof of title under, 890 
 
 See tit. Ejectment in Vol. II. 
 
 ENDOWMENT, 
 
 secondary evidence of, 460. 
 
 of a vicarage, when presumed, 162. 
 
 ENROLMENT, 
 
 of fine, 
 
 certificate of, evidence of enrolment, 882 
 of duchy lease, 388. 
 if deed, when evidence, 461. 
 
 evidence against party making enrolment, 464. 
 of bargain and sale, under stat 27 H. S, c. 16, 387, 463. 
 
 date of, part of the record, 387, 464, n. 
 indorsement of enrolment on the deed, 
 
 proof of enrolment, 387. 
 copy of, when evidence, 461, 464. 
 of memoiial of annuity-deed, copy of, 464, n. 
 
 indorsement of date, part of record, 387, n. 
 of other deeds, when evidence, 464, n. 
 copy of enrolment, when evidence, 464, n. 
 by clerk of peace, 388. 
 
 ENTRIES, 
 
 EQUITY, 
 
 in public books, 413, 414, 41.5, 422. 
 
 proof of, 226, 424- 
 in corporation books, 422. 
 
 proof of, 424. 
 in private documents, 
 family Bibles, 239 
 by deceased steward, 255. 
 receiver of rents, 255. 
 deceased copyholder, 257. 
 collector of rates, 258. 
 deceased rector or vicar, 260. 
 lessee of rectory, 261. 
 death of parlies, when to be shown, 261 
 situation of, when to be shown, 259. 
 proof of authenticity of, 259. 
 in tradesman's book, 263. 
 
 general rule in courts of, as to the admissibility of parol evidence, 566.
 
 620 INDEX TO VOL I 
 
 EdUIlT— CO. 'inued. 
 
 with respect to tho party charged, 56S. 
 to plaintiff in equity, 570. 
 rule of, in case of part performance, 575. 
 mistakes in deeds corrected by, 576. 
 trusts raised in, 577. 
 
 ESCHEAT, 
 
 inquisition of, 874. 
 
 between whom, and of what, evidence, 874. 
 
 how taUen and presented, 874. 
 
 right of cross-examining witnesses, 875. 
 
 ESTOPPEL, 
 
 by judgment or verdict, when, 322. 
 between the same parties, 323. 
 examples of, 323. 
 privies, bound by, 324. 
 
 EVICTION, 
 
 may be proved, under nil debet, in action of debt for rent, 143. 
 EVIDENCE, 
 
 admissibility of, a question for the judge, 18. 
 written or unwritten, 
 
 writings, public or private; 
 
 public, of record, or not of record; 
 public writings not of record, judicial ornot judicial, 316. 
 bill of exceptions to, 311. See tit. Bill of Exception. 
 demurrer to, 311. See tit. Demurrer to Evidence. 
 presumptive. See tit. Presumption. 
 general rules of evidence, 148. 
 
 1. Evidence confined to points in issue, 169. 
 relevancy of proof, 169. 
 effect of admission on record, 170, 171. 
 of judgment by default, 186. 
 of payment of money into court, 187. 
 of bill of particulars, 189. 
 proof of other transactions, 171. 
 
 of customs in other manors, 173. 
 of custom of the country, 174. 
 
 of acts of ownership in other portions of property, 175. 
 of custom of tithing, 175. 
 evidence of character of party, when admissible, 176, 177. 
 rule in criminal cases, 178. 
 
 examples to illustrate the general rule, 178, 179.
 
 INDEX TO VOL. I. (321 
 
 EVIDENCE— co«/i7JUf(i. 
 
 acts and declarations of prisoner, when evidonce for him, 
 181. 
 Affirmative of the issue to be proved, 194. 
 
 in action on game-lavs, plaintitT need not disprove the 
 several qualifications, 198. 
 
 the same rule in proceedings on informations before mag- 
 istrates, 199. 
 negative, when to be proved, 195. 
 
 where breach of duty alleged, 195. 
 
 not reading thirty-nine articles, 195. 
 
 presumption of payment of bond, 197. 
 of legitimacy, 197. 
 
 death presumed after what time, 197. 
 receipt of notes, 198. 
 plea of infancy, 199. 
 
 prosecution for bigamy, prosecutor to prove consent of 
 parents, 199. 
 
 where a person is charged with doing the act compltjined 
 of, " without giving due notice," 195. 
 
 covenant to repair, 196. 
 on indictment for coursing d^r, " without the consent of 
 the owner," 196. 
 
 on an issue upon the death of a particular person, the 
 party asserting the death has to prove it, 197. 
 
 where the law presumes in favor of a plea, the plaintiff is 
 to disprove it, 197. 
 
 party is to prove all facts of which he is peculiarly cogni- 
 zant, necessary for his case, 198. 
 3. Substance onlj of the issue need be proved, 200. 
 
 in action of waste — sufficient to prove that defendant cut 
 a less number of trees, 201. 
 
 in action on simple contract, plaintiff may prove less 
 than the writ demands, 201. 
 
 in action against sherifl', plaintiff declares that he had J. S. 
 and his wife in execution, proof that he had only J. S. 
 ia sufficient, 201. 
 
 in action for slander, rule as to the proof of the words, 201. 
 
 averment in replevin, that the cattle (damage feasant) 
 were levant and couchant, is not proved by showing that 
 part of them were so, 211. 
 
 plaintiff may recover, though he prove a more ample pre- 
 scriptive right than he claims, 211. 
 
 proof that A. was church-warden, not sufficient on issue
 
 622 INDEX TO VOL I. 
 
 EVIDENCE continued. 
 
 whether A. and B. were church-wardens, 202. 
 averment that plaintiff was constable of a particular parish, 
 is not supported by proof that he was sworn in to serve 
 for a liberty of which the parish was only part, 202. 
 same rule in criminal cases, 202 
 
 examples in prosecutions for treason, murder, fdUa 
 
 pretences, &c. 203. 
 rule with respect to principal and accessary, 204. 
 averments immaterial, when, 205, 206. 
 rule with respect to matters of inducement, 200. 
 averments, merely niattcr of inducement, not strictly 
 
 proved, when, 206. 
 solvit ad diem — proof of payment bef(>re the day, 200. 
 contracts to be truly stated, and proved as stated, 207. 
 See tit. Variance. 
 Best evidence to be given, 217. 
 
 meaning and extent of the rule, 218, 301. 
 copy of deed not evidence, when the deed can be pro- 
 duced,_218. 
 
 other examples, 218. 
 of taking of oaths entered on record, 219. 
 best proof of negative, 220. 
 of insurance, 218. 
 of registered deed, 218. 
 of licence to trade, 218. 
 of discharge of insolvent, 219. 
 of deeds in general, 220. 
 rule in cases where there has been a written memorandum, 
 or receipt, 220, 221. 
 
 terms of tenancy, 221. 
 proof of resolutions at a public meeting, 221, 222. 
 rule as to proving of hand-writing, 223. 
 
 as to disproving, 223. 
 exceptions to the general rule, 224. 
 entry, proof of, 259. 
 
 authenticity of, 259. 
 
 in letter book, when secondary evidence, 46S. 
 in letter book of merchant, 263, n. 
 in book of third person, 265. 
 in book of steward, evidence against impropria- 
 tor, 261.
 
 INDEX TO VOL. I. (^23 
 
 EVIDENCE— co«/»ni/ei. 
 
 entries of tithes received, in book of corporation, 
 261. 
 
 by tradesman, 266. 
 
 by bankrupt, 266. 
 
 time of making, 266. 
 
 of receipts of rent, 253. 
 
 in book open to inspection, 265. 
 
 on court-rolls, proof of nature of customary es- 
 tates, 418. 
 
 on Journals of House of Commons, ho\Y proved, 
 407. 
 
 copy of entry in public books, 226. 
 
 ap, ointment of constables, ofiicers of the revenue, 
 surrogate, &c. need not be proved, when, 226. 
 
 admission of party dispenses with strict proof, 
 when, 226. 
 
 5. Hearsay, not evidence, 229. 
 
 ?ec tit. Hearsay. 
 
 6. Parol evidence, when admissible with reference to written tn- 
 
 slruments, 531. 
 to explain latent ambiguity, 5.31. 
 
 See tit. Ambiguity. 
 to explain mistake in will, 532. 
 
 as to devisee, 532, 536 
 as to fund, 532. 
 
 as to description of property, 534. 
 or in entry of surrender of copyhold, 540. 
 to explain patent ambiguity, 533. 
 in deed, 538. 
 uncertainty in will, 538. 
 blank in will, 539. 
 blank in agreement, which need not have been written, 
 
 540. 
 blank in instrument, kept to record a fact, 540. 
 blank in bishop's register, 540. 
 not to contradict or vary a will, 547. 
 not to vary or contradict a deed, 548. 
 
 bond, to pay on a certain day, cannot be shown to have 
 been intended as an indemnity against another bond, 
 548. * 
 
 averment of receipt of money, in body of deed, conclusive, 
 
 549. 
 memorandum of receipt, indorsed, not so, 549. 
 proof of different consideration, not admitted, 549. 
 
 another consideration or use may be shown, 649.
 
 f524 IN HEX TO VOL I 
 
 TWDESCE— continued. 
 
 in case of fraud, &c. a diflerent consideration may be shown, 
 
 &c., 551. 
 delivery of deed on a dift'eront day may be shown, 
 
 553. 
 customary right may be shown, though not expressed in deed, 
 when, 553. 
 as, for heriot, or way-going crop, 553. 
 if inconsistent with the deed, it cannot be shown, 
 554. 
 time of holding, mentioned in lease, 554. 
 not to vary or contradict policy of insurance, 55 4. 
 or charter-party, 555. 
 or promissory notes, 555. 
 or mercantile contracts, 556. 
 
 usage of merchants may be admitted to explain, when, 556. 
 parol evidence not to vary agreement within stat. of frauds, 
 559. 
 
 as to vary the rent, 559. 
 or to vary quantity of goods to be delivered, 560. 
 
 time of delivery may be shown to have been altered, 
 561. 
 declarations of auctioneers not admitted to vary or explain the 
 
 printed conditions of sale, 560. 
 contract between A. and B. as buyer and seller, may be shown 
 
 to have been made by B. as agent, 561. 
 not to vary written contracts out of the stat. of frauds, 
 561. 
 but subsequent agreement to vary, may be shown, 
 561. 
 written agreement, when discharged by parol, 663. 
 proof of collateral facts to show the meaning of contracting parties, 
 
 how far admitted, 562. 
 usage regarded in construction of contracts, when, 556. 
 not admissible to contradict, 557, 558. 
 to explain ancient charter, 540. 
 ancient deed, 542. 
 
 terms of admission to copyhold, 543. 
 rule in equity as to admissibility of parol evidence, 566. 
 
 rul§ as to defendant, on a bill for specific performance, 
 
 568. 
 rule as to plaintiff, 570. 
 
 rule as to rectifying mistakes in deeds, &c. 576. 
 rule as to raising trusts in wills, 577.
 
 INDEX TO VOL. I. 625 
 
 EVIDENCE.— continued. 
 
 7. Secondary evidence of writings, when ndinitted, 452, 457. 
 what admitted, 458, 459. 
 
 of writing, in possession of opposite party, 439, 440. 
 of lost writing, 454. 
 of written instrument, the suhject of the suit, 441. 
 
 EXAMINATION, 
 
 before conrts-niarlial, 14. 
 before commissioners of inclosnrcg, 14. 
 before commissioners of bankrupt, 13. 
 of bankrupt's wife, 86, 
 before justice of peace, 14, 376. 
 proof of, 399. 
 
 parol evidence to supply omission, not admissible, S70. 
 of pauper as to settlement, 376. 
 of single woman pregnant, 377. 
 of soldier under mutiny act, 377. 
 
 attested copy given to commanding officer, evidence of 
 settlement, 377. 
 of prisoner, as to settlement, 377. 
 of witness, 
 
 abroad, or going abroad, 13. 
 
 on interrogatories, 13. 
 as to interest, 2G7. 
 in chief, rules as to, 26S. 
 separate examination of witnesses, 26S. 
 leading question, 268. 
 
 to witness, called to contradict another, 269. 
 in cross-examination, 275. 
 cross-examination, rules as to, 272. , 
 
 with a view afterwards to contradict, 269. 
 re-examination, rules as to, 304. 
 of prisoner, before magistrate, 
 taken in writing, li3. • 
 
 in the words of the prisoner, 113. 
 taken without oath, 113. 
 
 if taken with oath, not admissible, 113. 
 if it purports to be so taken, parol evidence is not ad- 
 missible to prove it was without oath, 113. 
 prisoner to be allowed to speak freely, and not to be exam- 
 ined like a common witness, 114. 
 when taken, examination to be read over to the prisoner, 
 
 114. 
 not indispensable, that it should be signed by the prisoner, 
 
 114. 
 if ho refuses to sign, and does not admit it to be true, it is 
 not admissible, 115. 
 
 Vol. T. 79
 
 626 INDEX TO VOL. I. 
 
 I.XAMm ATION— continued. 
 
 ought to be signed by magistrate, 115. Seo Confession. 
 minuties of examination, though not admissible as a judicial ex- 
 amination, may be used as a memorandum, 115 
 
 See Witness, Cross-examination, Oath. 
 questions on points of evidence, 
 
 examination of witness on voire dire, as to form of swearing 
 
 most binding on him, 23. 
 admissibility of evidence as to misconduct of prosecutor's agent, 
 
 103. 
 mode of cross-examining a witness as to contradictory state- 
 ments, preparatory to the contradictory proof, 293. 
 cross-examination as to written contradictory statements, in the 
 
 party's possession, 296. 
 
 or as to such statements when lost, 298. 
 power of cross-examining as to contradictory representations, 
 
 generally, or 'as to representations in writing, 299. 
 mode of re-examining a witness, after such cross-examination, 
 
 304. 
 
 EXCHANGE, (BILL OF,) 
 
 See tit. Bill of Exchange. 
 EXCHEQUER, 
 
 judgment in rem, 354. 
 
 171 personam, 354. 
 
 of condemnation, conclusive as to right of seizure, 355. 
 
 conclusive as to all persons, 354. 
 of acquittal, whether conclusive as to illegality of seizure, 
 S55. 
 
 EXCISE. See tit. Commissioners. 
 
 EXCISE BOOKS, 
 
 transcribed by officers from specimen papers, 415. 
 
 EXCISE OFFICER, 
 
 acting as such, evidence of appointment, 226. 
 
 EXCOMMUNICATION, 
 
 witness not incompetent from, 26. 
 EXECUTION, 
 
 of deed. See tit. Deed. 
 of will. See tit. Will. 
 ejectment by one claiming under. See tit. Elegit, Ejectment. 
 
 EXECUTOR- See tit. Probate. 
 
 admissible to prove testator's sanity, when, 65. 
 appointment, proof of, 344. 
 
 examined copy of probate, 397. 
 not incompetent through liability to actions, 52. 
 estoppel against, 323. 
 
 a good attesting witness to will, when, 495. 
 payment to, under forged probate, effect of, 844.
 
 INDEX TO VOL I. 627 
 
 EXECUTOR DE SOJY TORT, 
 competent when, 52. 
 
 EXEMPLIFICATION. 
 
 of deed or will, not evidence 385. 
 of record under great seal, 384. 
 
 under seal of court, 386. 
 of probate, 397. 
 of letters patent, 463. 
 of foreign judgment, 899. 
 
 EXPENCE, 
 
 of witness, 6. 
 
 in civil cases, 6. 
 
 coming from abroad, 7, 
 con)pensation for loss of time, 7. 
 in criminal cases, 9. 
 in felonies, 9. 
 in misdemeanors, 12. 
 tender of, not necessary in case of criminal prosecution, 12. 
 
 necessary, to witness brought before commissionera of bank- 
 rupt, 14. 
 allowance of, to prosecutor and witnesses under etat. 7 G. 4. o. 64., 
 11, 12. 
 
 EXPLANATION, 
 
 of writings by parol evidence, 531. See tit. Ambiguity. 
 
 EXPULSION, 
 
 sentence of by College, not impeachable in courts of cornmoD law, 
 357. 
 
 EXTENT, 
 
 inquisition under writ of, 375. 
 
 persons claiming property may cross-examine, 375. 
 
 FACTOR. See tit. Agent. 
 FACULTY, 
 
 from ordinary, when presumed, 163. 
 
 FATHER, (PUTATIVE,) 
 
 not compellable to confess himself father, 276. 
 may confess it, if he choose, 276. 
 
 FELONY, 
 
 e.xpences of witnesses allowed on trial, 9- 
 conviction of, renders incompetent, 28. 
 copy of indictnient, how to be had, 425. 
 whether prosecutor confined to one act of, 179- 
 
 FEME COVERT, 
 
 service of subpoena on, 3.
 
 628 INDEX TO VOL I. 
 
 FEME COWERT— continued. 
 
 admissions by, when evidence ugainst liusband, So. 
 answer of, whether evidence against her, 262- 
 
 FEME SOLE, 
 
 in action by woman ns, defendant cannot call the husband to prove 
 the uiarriage, 77. 
 
 FENCES, 
 
 on question of liability to repair, coninionera when not competent, 
 67. 
 
 FIERI FACIA?, 
 
 proof of, 390. 
 
 when judgment to be proved, S91. 
 
 FILAZER'S BOOK, 
 
 not evidence of writ, 390. 
 
 FINE, 
 
 FISHERY. 
 
 chirograph, evidence of, 387. 
 
 proclamations of, how proved, 339. 
 
 copy of proclamations by chirographer not evidence, 389. 
 
 certificate of enrolment of, evidence of enrolment, 382. 
 
 entry of licences in coart-rolls, evidence for persons claiming under 
 lord of manor, 253. 
 
 FLEET BOOKS, 
 
 not evidence of marriage.-j, 4 IP. 
 
 FOREIGN COURTS. See tit. Admirally. 
 
 foreign judgment in criminal case, 30. 
 sentence of foreign court of admiralty, 347. 
 
 when conclusive in our courts, 347. 
 
 between what parties, 347. 
 
 upon what points, 348. 
 
 when not conclusive, 349. 
 
 when not admissible, 349. 
 sentence of other foreign courts, 349. 
 
 sentence establishing a marriage, when conclusive, 350. 
 sentence of acquittal on charge of murder, 350. 
 sentence vacating acceptance of bill, 350. 
 foreign judgment ^rzVfta/acje evidence of debt, when, 350. 
 
 if proceedings regular, 353. 
 
 proof of summons of party, 353. 
 conclusive when, 353. 
 proof of sentence, 399. 
 
 exemplification of sentence, evidence, 399. 
 
 copy of sentence by officer of court, not evidence, 3 99. 
 
 FOREIGN LAW, 
 
 proof of, 401. 
 
 by civil code of France, 403. 
 foreign register not evidence of marriage, 410, 4n.
 
 INDEX TO VOL. I. (j29 
 
 FOREIGN JUDGMENT. 
 
 not conclusive, 852. 
 
 when void, 353. 
 
 etiect I f, in evidence, 353. 
 
 FOREIGN BTATE, 
 
 acts of, how proved, 402. 
 commercial regulations of, 402. 
 navigation laws of, 40J, n. 
 treaties of, 402. 
 
 FORFEITURE, 
 
 conviction renders incompetent, 2S. 
 
 conviction, not conclusive as to time of offence, unless specially 
 found, 317. 
 
 FORGERY, 
 
 party injured, incompetent, in prosecution for forgery, 121. 
 
 reason of the rule, 123. * 
 
 incompetent to prove forgery, 123. 
 or other material fact, 123. 
 
 competent to prove a fact merely collateral, 122, n. 
 
 competent, if not- debited by his banker, 122. 
 
 competent to prove u receipt forged, having recovered the mon- 
 ey from the prisoner, 122. 
 
 payee of bill, who was to pay a debt of the drawer by means 
 of the bill, competent to prove his name forged, 122. 
 
 maker of note competent to prove that he did not make it paya- 
 ble at his banker's when, 122. 
 
 supposed indorser not made competent .by release from the 
 person to whom the bill was uttered, but who had not given 
 value for it, 135 
 
 drawer of bill or note competent, if his responsibility is not va- 
 ried by the alteration, 123, 135. 
 
 supposed maker of note, when made competent by release, 
 135. 
 
 supposed acceptor of bill, when made competent by release, 
 135. 
 
 drawer, when competent, in case of altering a genuine instru- 
 ment, 135. 
 
 prosecutor of forgery in power of attorney, competent, if power 
 not executed, 12 2. 
 
 proof of other forged instruments, in prisoner's possession, ad- 
 missible, 179. 
 
 person, whose name is forged, may prove the forgery in civil 
 actions, when the question arises collaterally, 123. 
 
 cashier of bank of England competent, 122. 
 proof of writing being forged, 224, 492, 493.
 
 630 INDEX TO VOL. I. 
 
 FORGERY— coH/j/)t(e(f. 
 
 by witness ncqunitited with tho writing; of supposed writer, 
 
 223. 
 by clerk of post-office, 493. 
 
 to disprove hand-writing, whether the euppoged writer siiould 
 not be called, if competent, 223, 224. 
 forged instrument evidence, without stamp, 620. 
 forged seal, proved by seal-engravers, 291. 
 
 probate not conclusive as to will being true in criminal cases, 345. 
 dying declaration of attesting witness to a bond or note, as to its being 
 forged, 230. 
 
 FRAUD, 
 
 conviction of, a cause of incompetency, 29. 
 judgment impeachable for fraud, 346". 
 
 who may impeach it, 346. 
 verdict obtained by, when vitiates a judgment, 331. 
 
 FRAUDS, (STATUTE OF.) See tit. Statute. 
 
 FREEMAN, 
 
 competent to prove bribery at election.";, 125. 
 if interested to any amount, incompetent, 65. 
 
 GAMEKEEPER, 
 
 deputation o(, inrolled in office of clerk of peace, 416. 
 
 GAME LAWS, 
 
 action or conviction on, 
 
 qualifications need not be disproved, 198. 
 
 GAMING, 
 GAZETTE, 
 
 conviction for, disqualifies, when, 29. 
 
 evidence of public acts, when, 407. 
 
 evidence of proclamations, public addresses, &c., 407. 
 
 not of presentations, or promotions, &c., 408. 
 
 of dissolution of partnership, when, 408. 
 
 of notice of bankruptcy, 408. 
 proclamation for reprisals, in Gazette, evidence of war, 408. 
 prockmiation, reciting that outrages had been committed, and oiTeriDg 
 rewards, evidence of such outrages, 408. 
 
 GENERAL ISSUE, 
 
 (See the titles of the several actions.) 
 
 GENTOO, 
 
 how sworn, 23. 
 
 GENUINENESS, 
 
 of impression of seal, 291- 
 picture, 291.
 
 INDEX TO VOL. I 5(3 J 
 
 GENUINENESS— ron<in wee/, 
 liand-wiitiog, 492. 
 opinion of inspector of franks, whether evidence, 493. 
 
 GOODS. See tit. £ssH7npsit, Sale. 
 
 written contract for the sale of, cannot be varied by parol evidence, 
 as to quantity to be delivered, 560. 
 
 GOSPEL, 
 
 swearing on, 24. 
 
 GOVERNMENT, 
 
 acts of, proved by the Gazette, 407. 
 
 actsof Btate of foreign government, how proved, 402. 
 
 GRAND JURY, 
 
 witness before, questioned as to what passed, 289. 
 member of, may prove finding of bill, 289, n. 
 
 GRANT. See tit. Deed. 
 
 ancient, explained by usage, 541. ^ 
 
 custody of, to be shown, when, 479. 
 presumed from length of possession, when, 16L 
 co-extensive with the enjoyment, 165. 
 
 not necessarily presumed, when the possession can be otherwise 
 explained, K)4. 
 
 GUARANTEE, 
 
 entry in account by principal, when evidence against surety, 
 258 
 
 GUARDIAN, 
 
 not competent in action by infant, 59. 
 cannot release a witness, in a suit against a minor, 134. 
 answer of minor by, evidence against guardian, 362. 
 declarations of, not evidence against the minor, 89, 362. 
 HABEAS CORPUS, 
 
 ad iedificandum, 5 
 
 for witness in custody, 4, 5. 
 on ship-board, 5. 
 
 application for, 5- 
 
 suing, and service of, 5. 
 
 HAND-WRITING, (See Signature.) 
 
 proof of, by person acquainted with the supposed writer's style, 223i 
 
 483. 
 by one who has seen the person write, 484. 
 by one who has received letters from him, 486. 
 in the case of Algernon Sydney, 485. 
 in the case of the seven bishops, 489. 
 comparison, not allowed, 490. 
 
 rule in case of ancient writings, 491, 492. 
 memorandum to refresh witness's memory, as to hand-writing, 491. 
 forgery of, howr proved, 224, 492. See tit. Forgery.
 
 532 INDEX TO VOL. I. 
 
 HAND-WRITING— con/inueJ. 
 
 evidence as to genuioeness of han(l-writin;», 492. 
 
 opinion of frank inspector as to genuineness, when admissible, 
 
 493. 
 whetlier the supposed writer should be called, if conopetent to dii- 
 
 prove the writing, 223, 224. 
 
 HAWKER AND PEDLAR, 
 
 HEARSAY, 
 
 in action against, for penalties, the plaintiff is to prove the negative 
 averments, 195. 
 
 general rule as to, 229, 234. 
 . Cases distinguishable from cases of hearsay. 
 
 1. Testimony of witness on former trial, when evidence, 230. 
 between the same parties, 231. 
 
 on same points at issue, 231. 
 
 the very words of such witness to be proved, 231. 
 
 2. Hearsay, part of res gesta, admissible, 231. 
 
 in case of trader absenting himself from home, to show motive 
 
 of absence, 231. 
 letter of payee to maker of note, contemporaneous with mak- 
 ing of note, to prove consideration, 232. 
 statement at time of making purchase, 232. 
 in receiving personal injury, 232. 
 of deceased person as to state of health, 233. 
 of persons in pari jure, admissible, 240, 247, 250. 
 to disprove the fact of marriage, 240. 
 complaint of woman in case of rape, when, and how far re- 
 ceived, 233. 
 in crim. con., declarations of wife, as to her intention, and pur- 
 pose in eloping, 234. 
 other examples in criminal cases, 234. 
 
 II. Exceptions to the general rule on the subject of hearsay, 
 234. 
 
 1. Dying declaration of person mortally wounded, 235. 
 admissible only, after all hope of recovery lost, 235. 
 of criivjinal, at the point of execution, inadmissible, 236. 
 of subscribing witness to a forged bond, admitted, 236. 
 evidence in case of murder, though a subsequent state- 
 ment may have been made in writing, 237. 
 not evidence in other prosecutions, 237, 
 not evidence in civil cases, 236.
 
 INDEX TO VOL 1 633 
 
 H EARS AY— eon/inwf J. 
 
 2. Hearsay on qnestion of pedigree, 238. Sco Pedigree. 
 
 declarations, papers, &c. in the family, in Bibles, registry books, 
 recitals in family deeds, &c., when cvi.lence, 239. 
 
 of deceased neighbors not evidence, 240. 
 
 of deceased parent as to time of birth, 240. 
 
 of deceased parent not evidence of placo of birtli, 241. 
 nor to prove want of access, 241. 
 
 of deceased persons, supposed to have been married, whea 
 admitted, 240. 
 
 deceased surgeons, 241. 
 
 of deceased husband as to legitimacy of wife, 239. 
 
 of deceased person, as to having been relieved by parish, or hir- 
 ed for a year, not admissible, 241. 
 
 hearsay of relative, inadmissible, when he can bo produced, 
 240. 
 
 declarations not admissible, if made post litem molam, 241. 
 
 depositions or answer in q former suit, not evidence against 
 a stranger, 247. 
 
 depositions in former suit, situations of parties when to be prov- 
 ed, 246. 
 when res inter alios acta, 247, n. 
 
 3. Hearsay on question of public rights, customs, boundaries, &.o, 
 248. 
 evidence of public rights, 248. 
 of right to tolls, 248. 
 of boundaries, customs, &.C., 249. 
 such declarations ought to come from persons having no interest 
 
 to misrepresent, 249. 
 declarations before arbitrator, 246. 
 
 depositions in a former suit upon a different custom, when ad- 
 missible, 248. 
 tradition of a particular fact, not evidence, 250. 
 
 limitation of this rule, 250,251. 
 common reputation not admissible on question of private right, 
 251. 
 
 not admissible to prove presentation, 253, n. 
 
 4. Old leases, rent-rolls, licenses, when admissible, 252. 
 on prescription affecting general right, 252. 
 on question of prescriptive right of fishing, 253. 
 entries of receipt of rent, 253- 
 survey, when admissible, 2!54. 
 counterparts of leases, 253. 
 licenses, 253. 
 
 Vol. I. 80
 
 634 INDEX TO VOL. I 
 
 liE\RSAY— continued. 
 
 evidence of possession or enjoyment, when necessary, 253. 
 evidence in answer to bill not admissible, 360. 
 
 5. Declarations or entries against interest, 255. 
 
 by steward, bailifl', or receiver, charging himself, 255. 
 
 bill oflading by deceased master of vessel, 256. 
 
 declaration by deceased man mid-wife, as to child's nge, 
 256. 
 
 by deceased copyliolders, agreeing to restrict their right of 
 common, evidence against other copy-holders, 257. 
 
 by occupier of land, as to e.\tent of adjoining tenant's land, 
 258. 
 
 declaration, not evidence, if the person alive, though sick, 
 259. 
 
 proof of declaration, 259. See Declarations against inte- 
 rest. 
 
 6. Entries by deceased rectors or vicars, 260. 
 
 evidence for their successors, as to receipt of ecclesiastical 
 dues, 260. 
 
 entry by deceased lessee of rectory, evidence, on the deter- 
 mination of the lease, for the impropriator, 261. 
 
 by steward of a former deceased owner of the estate, 261. 
 
 in parish register, when evidence as to modus, 261. 
 
 not evidence, if the person alive, 261. 
 
 proof of entry, 261. 
 
 7. Entries in a tradesman's books, 263. 
 
 made by a deceased shopman, proof of the delivery of gi ods, 
 
 when, 263. 
 
 not if the person be living, 264. 
 in a merchant's books, when admitted, 264. 
 entry by clerk who is living, though abroad, not evidence, 
 
 264. 
 
 used as a memorandum by shopman, 264. 
 by servant, stating terms of agreement, not evidence, 265. 
 by tradesman himself, not evidence, 266. 
 in a tavern keeper's book, open to customer, admitted, 265 
 clause in st. 7 Jac. I,c. 12, as to admissibility of shop 
 
 books, 266. 
 
 HEATHEN. 
 
 may be witness, 22. 
 how sworn, 22.
 
 INDEX TO VOL. F gg5 
 
 HEIR, 
 
 competent concerning the title of land, 65- 
 estoppel ngainst, 323. 
 HERALDS' BOOKS, 
 
 evidence on question of pedigiee, 421. 
 visitation books of countrie.s, evidence, 421. 
 account of, 421. 
 
 HERIOT, 
 
 due by custotn, though not expressed in lease, 553. 
 hearsay evidence, when admitted to prove, 257. 
 HIGHWAY, 
 
 certificate of justice, as to repair of, 382. 
 
 record of conviction for not repairing road, evidence of non-liability 
 of another parish indicted for not repairing same road, 331. 
 HIRING, 
 
 declaration of deceased person, not evidence of, 241. 
 HISTORY, 
 
 general, when evidence, 423. 
 Speed's Chronicle, 423. 
 not evidence of private rights, 423. 
 as Camden's Britannia, 423. 
 Dugdale's Monasticon, 423. 
 Dugdale's Baronage, 423. 
 HONORARY ENGAGEMENT, 
 
 not an objection to a witness, 54. 
 HOSPITAL, 
 
 governors of, when competent, 54. 
 HORSE, 
 
 receipt for price of, containing warranty of soundness, does not require 
 a stamp, 528. 
 
 HOUSE OF COMMONS, 
 
 member of, cannot disclose the councils of the nation, 288. 
 journals of, 406. 
 
 resolution of, not evidence of the truth of facts, 406. 
 HUE AND CRY, 
 
 party robbed, a competent witness to what facts, 70. 
 HUNDRED, 
 
 in action against, the party robbed is competent, 70. 
 to prove the robbery, 70. 
 not to prove other facts, 70. 
 as the venue, 70. 
 
 See tit. Hue and Pry. 
 inhabitants of, competent for the hundred, 71. 
 HUSBAND AND WIFE. See also tit. Wife. .Adultery. Feme sole. 
 competent to contradict each other, in collateral cases, 79.
 
 (336 INDEX TO VOL. I. 
 
 HUSBAND AND WIFE— continued. 
 
 in a suit between third persons, tha husband or wife may be called to 
 
 contradict the other as witness, SO. 
 in Buch suit, tiie wife is competent, though her ovidence may lead to a 
 
 demand against her husband, 87. 
 offer by wife, to settle for goods sold at husband's shop, 86. 
 husband or wife of party to the suit, incompetent, 77. 
 reason of this rule, 77. 
 though divorced for adultery, 83. 
 though the other consent, 83. 
 not competent against each other, 77. 
 in actions, 77. 
 
 in prosecutions, to crirninato directly, 77. 
 in treason, So. 
 whether wife compellable to give evidence tending to criminate hus- 
 band, 79. 
 whether compellable to give evidence charging the other in collateral 
 
 Buits, 80. 
 not competent for each other, 81. 
 
 on a question, whether goods are the property of a man 
 or his wife, he is not competent to prove the latter 
 fact, 82. 
 on indictment for conspiracy, the wife of one defendant is not a 
 
 competent witness for the rest, 81. 
 declarations or letters by one, when evidence for or against the 
 
 other, 81, 82. 
 wife of interested witness not competent, 65. 
 
 of convict, when competent, 47. 
 wife's confession of q trespass not evidence against her hus- 
 band, 81. 
 acknowledgment of payment of a debt, not evidence against him, 
 
 86. 
 declarations of wife, employed as agent, 85. 
 admission in a business, of which she had the management, 
 85. 
 of debt being due for goods furnished to her, 86. 
 as to the terms on which she hired a servant, 85. 
 dying declarations of wife, evidence against the husband, on trial 
 
 for murder, 85. 
 in action of crim con., wife's letters to defendant are not evi- 
 dence against the plaintiff, 82. 
 
 nor is her confession evidence /or him, 82. 
 conversation between, in presence of a third person, 82. 
 exceptions to general rule, as to competency of husband or wife, 
 83 
 
 in prosecutions, for marrying by force, the woman is compe- 
 tent, 84.
 
 INDEX TO VOL. I. ti37 
 
 HUSBAND AND V/IFE— continued. 
 
 for bigamy, Bccond wife competent, after proof of 
 
 first marriage, 84. 
 for offence against the woman's person, she is com- 
 petent against the husband, 84. 
 wife may exhibit articles of peace against liim, 85. 
 
 or apply for information, 85. 
 in appeal against order of bastardy, married woman may prove 
 the criminal connection, 86. 
 
 but cannot prove non-access, 87. 
 in appeal against the removal of a woman, as widow of A. B., 
 
 she is competent to disprove the marriage, 80, 87. 
 woman cohabiting and passing as wife, whether witness for the 
 
 man, 88. 
 wife of bankrupt may be examined by commissioners, when, 86. 
 answer by wife, whether evidence against her, after her husband's 
 
 death, 362. 
 wife not admissible for defendant, to give evidence of conversations 
 with her deceased husband, in action by executor, 83. 
 
 IDENTITY, 
 
 of party, executing a deed, when necessary to be proved, in action 
 on the deed, 475. 
 IDIOTS, 
 
 incompetent, 18. 
 ILLEGITIMACY. See tit. Bastard, Legitimacy. 
 
 INPROPRIATOR, 
 
 entries in books of, 260. 
 
 INCLOSURE, 
 
 commissioners of, may summon witness to appear before them, when, 
 14. 
 
 INCOMPETENCY, 
 
 of witness according to our law, 18. 
 
 INDEMNITY, 
 
 acts of, for witnesses, 277, n. 
 
 INDENTURE. See tit. Deed. 
 
 book kept for recording parish indentures, 413. 
 INDENTURE OF APPRENTICE. See tit. Apprentice. 
 
 INDIA, 
 
 evidence of witnesses resident there, how procured, 16. 
 
 INDICTMENT, 
 
 averment in, when not necessary to be proved, 207.
 
 iySQ INDEX TO VOL. I. 
 
 INDICTMENT— coniinueJ. 
 
 as. in indictment for robery near the highway, 207. 
 for robbery in the liouso of A. B., 207, 
 for arson in tlio night-time, 207. 
 for murder of officer in execution of office, 207. 
 for burglary in ihe house of J. D. with intent to steal 
 the property of J. W., the averment of property is 
 material, 207. 
 proof of 80 much of the indictment as cliarges n substantial crime, 
 sulficient, 202. 
 
 if it charges, that defendant did and caused to be done, enough to 
 I prove either one or tlie other, 202. 
 
 if defendant is charged with composi?ig, printing, and publish- 
 ing a libel, he may be convicted only of tlie printing and pub- 
 lishing, 203. 
 for felony at a certain place, and no such place in the county, wiieth- 
 
 er indictment void, 217. 
 copy of, in felony, not to be had by defendant, without order of Court, 
 425. 
 
 but if produced, admissible, though without order, 426. _^ 
 
 in misdemeanors, order not necessary, 42ij. 
 INDORSEE. See tit. Promissory JVote, Bill of Exchange. 
 INDORSEMENT, 
 
 averment of date of, need not be strictly proved, 205. 
 
 of payment, on deed, not conclusive, 549. 
 
 of enrolment on bargain and sale, o87. 
 
 of date of enrolment, no part of record, 387. 
 
 of writ, evidence against sheriff, 391, n. 
 
 INDORSER, 
 
 competency of, 43, 61. 
 
 of note, may prove consideration usurious, 43. 
 
 whether competent to prove it an accommodation note, 61. 
 of bill, may prove that it was made in England, though purporting to 
 be made abroad, 43. 
 
 INDUCEMENT, 
 
 averments, which are merely inducement, rule as to proof of, 200, 
 206. 
 
 INFAMY, 
 
 INFANCY, 
 
 conviction of infamous crime incapacitates, 28. 
 what crimes incapacitate, 28. 
 rule of civil law on this subject, 28, n. 
 proof of judgment necessary, 30. 
 admission of conviction, does not disqualify, 30. 
 
 plea of, — replication, promise confirmed after full age, &c.
 
 INDEX TO VOL. I (539 
 
 INFANCY— continued. 
 
 piool of promise to pay is BulHcieiit on part of plaintifT, 199. 
 INFANT, 
 
 competent witness, wiien, 19. 
 
 declaration of, without oath, not admissible, 20. 
 
 confirmatory evidence of, 20. 
 
 in action by guardian of, not competent, 59, S9. 
 
 answer of, by guardian, not evidence against him, 89, 362. 
 
 INFERIOR COURT, 
 
 judgment of, when evidence, 396. 
 proof of, 396. 
 
 INFIDEL, 
 
 incompetent witness, when, 21. 
 
 INFORMATION, 
 
 liability to, will not render incompetent. 51. 
 on game laws, 
 
 informer need not disprove the qualifications, 198. 
 before justice of peace, proof of, 399. 
 
 INFORHJER, 
 
 acting as accomplice, remark on, 42. 
 incompetent witness at common law, 125. 
 
 competent, when the statute cannot otherwise be executed, 125. 
 in penal action for bribery, 125. 
 
 exporting machinery, 126. 
 gaming, 126. 
 other cases, 126. 
 employed" to collect information, remarks on, 42, 
 
 not allowed to discover his employer, 284. 
 
 or, to whom he gave the information, 286. 
 
 INHABITANTS. 
 
 of county, competent on indictment for non-repair of bridge, when, 
 
 126. 
 of hundred, in action by party robbed, 70, 127. * 
 
 of parish, where penalty given to the poor, when competent, 127. 
 in actions against churchwardens for money mis-spent, 126. 
 in prosecutions under highway act, 127. 
 inhabitants of parish, indicted for non-repair of highway, 
 not competent for defendants, 127. 
 rated, competent on question whether lands are vested in overseers 
 
 128. 
 competent by stat. 54 G. 3, c 170, in any matter relating to rates, 
 boundaries, settlements, &c., 128.
 
 g40 INDEX TO vol. I. 
 
 imiABYTAKrS— continued. 
 
 declarations by, evidence against their parish, 129. 
 not compellable to give evidence against their parish, before slat- 64 
 G. 3, 129. 
 
 mauEST, 
 
 of coroner, whether evidence of lunacy against one claiming as ex- 
 ecutor, 337. 
 post mortem, nature of, 375. 
 
 INQUISITION, 
 
 by coroner, 374. 
 
 of escheat, 374, 
 
 of extent, 374. 
 
 ad quod damnum, 374, n. 
 
 by warrant of court of exchequer, 37S. 
 
 of lunacy, whether evidence of lunacy in issue at law, 337. 
 
 evidence of a prisoner being insane, 375. 
 evidence against third persons, 375. 
 under non est factum,, 375- 
 post mortem, 375. 
 of /e/o de se, evidence against executor or administrator, 374. 
 
 not conclusive, 374. 
 finding that the party fled, whether conclusive, 374. 
 of office, evidence against whom, 375. 
 
 by escheators, commissioners, sheriff, &c., 374. 
 
 by order of H. of Com. respecting fees, 373. 
 not evidence, when extra-judicially taken, 375. 
 
 inquisition by sheriff's jury, on question of property, 375. 
 proof of inquisition, 392. 
 
 commission ought regularly to be shown, 392. 
 
 mauisiTioNES nonarum, 405. 
 
 INROLMENT, (See Enrolment.) 
 
 INSANITY, 
 
 ground of incompetency, 18. 
 
 INSCRIPTION, 
 
 on banners, proved by eye-witness, 221. 
 on monument, evidence of pedigree, 239. 
 INSOLVENT. 
 
 discharge of, how proved, 219, 382. 
 INSOLVENT DEBTOR'S COURT, 
 
 witness attending before privileged from arrest, 5. 
 
 INSPECTION, 
 
 of records, 425. 
 of indictments in cases of felony, 425. 
 
 order for, 425. 
 in cases of misdemeanor, 426. 
 
 of proceedings in inferior courts, 427.^
 
 INDEX TO VOL. I. g»^j 
 
 INSPECTION— continued 
 
 of depositions not allowed prisoner before trial, 427. 
 of parish books, 428, 433. 
 
 for what purpose, 433. 
 of books in public offices, 429. 
 how to obtain inspection, 433. 
 of court rolls, 429. 
 
 corporation books, 430. 
 
 penalty for refusing inspection of, 430, n. (*) 
 private writings, when allowed, 436. 
 papers produced under notice, effect of, 441. 
 rule for, when not allowed, 432. 
 
 when the party would furnish information against himself, 432, 
 
 433. 
 otherwise, in information in nature of a qvo warranto, 433. 
 affidavit in support of motion for inspection, 433. 
 rule to inspect, after issue joined, 434. 
 where no action depending, 434. 
 in case of motion for mandamus, 434. 
 
 or information in nature of quo warranto, 434. 
 INSPECTOR 
 
 of flanks, his opinion as to handwriting, 493. 
 INSPEXIMUS 
 
 of letters patent, when evidence, 463. 
 of endowment of vicarage, 480. 
 
 INSURANCE, 
 
 proo of, by policy, 218. 
 
 by entry in the company's book after notice to produce the 
 policy, 218. 
 
 See tit. Policy of Insurance. 
 INSURER, 
 
 competent in action on policy, 48. 
 
 INTENTION, 
 
 proof of collateral facts, admissible to show intention, 562 
 INTEREST, 
 
 nature of, when disqualifies, 45. 
 
 incapacitates witness, 46. 
 
 degree of interest, 65. 
 
 on both sides, 52, 66. ^ 
 
 examples, 66. 
 influence of verdict, 50. 
 principle of the rule, 53. * 
 
 remark on the old cases, 46. 
 modern rule, 53. 
 exceptions to the rule, 121, 125. 
 objection, how and when taken, 131. 
 how answered, 132, 139. 
 
 Vol. I. 81
 
 642 INDEX TO VOL. I. 
 
 INTEREST— continued. 
 
 witness acquiring an interest, for the purpose of depriving party to the 
 
 suit of his teslinnony adniissihie, 137. 
 witness laying wager on result of trial, not thereby disqualified, 
 
 139. 
 witness of a wager, though he afterwards bet himself, competent to 
 
 prove the wager, 137. 
 acquired since cause of action, 138. 
 
 on note, recoverable, though not mentioned in particular, 191. 
 declarations against, when evidence, 255. 
 
 examples, 255. 
 endorsement of payment of, on bond. See tit. Endorsement- 
 
 INTERPRETER, 
 
 when considered as an agent, 101. 
 
 INTERROGATORIES. See tit. Examination. 
 depositions on, 14, 395. 
 with consent of both parties, 14. 
 to witness abroad or going abroad, 13. 
 examined copy of by clerk of judge, 388. 
 
 IRRELEVANT QUESTIONS, 
 
 what such, 272. 
 
 if answered, not to be contradicted, 272. 
 
 ISSUE, 
 
 evidence to be confined to points in issue, 169. 
 affirmative of, to be proved, 194. 
 substance of, alone need be proved, 200. 
 granted by court of equity, 70. 
 
 order by Chancery that party to the suit shall be examined on 
 trial of issue, 70. 
 
 rule as to proof of will, under, 497. 
 
 proof of verdict upon, 389. 
 
 JACTITATION OF MARRIAGE, 
 
 sentence of ecclesiastical court, in cause of, when evidence as to mar- 
 riage, 342. 
 
 not corifelusive, 343. 
 
 much less in criminal prosecutions, 844. 
 
 JEW 
 
 may be witness, 22. 
 how to be Bworn, 23. 
 
 JOURNALS 
 
 of House of Lords, 406. 
 
 evidence of their proceedings, 406. 
 
 proof of judgment on appeal, 406. 
 
 not evidence of the facts stated in the judgment, 406.
 
 INDEX TO VOL. I (343 
 
 JOURNALS— continued. 
 
 proof of address to the king, 406. 
 
 resolutions in, not evidence of truth of facts there affirmed, 
 406. 
 
 except relating to matters of state, 406. 
 of House of Commons, 406. 
 
 evidence of their proceedings, 406. 
 proof of entry in, 406. 
 
 by examined copy compared with original, 407. 
 printed copy not evidence, 407. 
 
 JUDGE, 
 
 rule as to special jurisdictions, with respect to the effect of a sentence, 
 
 357. 
 copy of depositions signed by judge's clerk, 388. 
 
 JUDGMENT. See tit. Verdict. 
 
 by default, its eifect, as an admission, 186. See tit. Default. 
 of court of record, when evidence, 320. 
 
 I. Judgments considered with reference to the parties, 320. 
 
 effect of, when pleaded between same parties, 321. 
 when not pleaded, 322. 
 same parties, who, 323. 
 real parties, who, 324. 
 effect of, between privies, 324. 
 privy in blood, 324. 
 in estate, 325. 
 in law, 325. 
 not evidence against stranger, 326. 
 not evidence for stranger, 326. 
 exceptions, 327. See also tit. Verdict. 
 evidence, by way of inducement to the action, 332. 
 when proved in support of writ, 391. 
 
 decree between vicar and impropriator, evidence between suc- 
 ceeding vicars and impropriators, 325. 
 judgment concerning an office, evidence for or against a succes- 
 sor, C25. 
 judgment of ouster in an information in the nature of quo war- 
 ranto, 136, 325. 
 
 II. Judgments considered with reference to the subject-matter, 333, 
 
 on what points evidence, 333, 334. 
 
 judgment in debt, bar in assumpsit, when, 333. 
 judgment in trespass, bar in trover, when, 333. 
 judgment in trover, bar in assumpsit, 333. 
 judgment in second action, when no evidence given in^the 
 
 former action, 334. 
 when some evidence given in former action, 334.
 
 (344 INDEX TO VOL. I. 
 
 JUDGMENT— coH<jriuc(i. 
 
 judgment to bo taken with reference to the snbject-mat- 
 
 ter, 335. 
 judgment in ejectment not conclusive as to the right, 
 336. 
 ' conclusive in action fur mesne profits, 336. 
 
 efiect of judgments in real actions, 335. 
 in criminal cases, whether evidence in civil, 337. 
 sentence in ecclesiastical court 336. 
 record of conviction, 337. 
 eifect of conviction, 33S. 
 coroner's inquest, 337. 
 record of acquittal, 338, 340. 
 of House of Lords, how proved, 396. 
 of court of exclusive jurisdiction, 32S, 340. 
 when conclusive, 340, 356, 357. 
 when not evidence, 340. 
 impeachable for fraud, 34 L 
 of Ecclesiastical Court, 341. 
 
 in nullity of, or aflirmance of marriage, when conclusive, on 
 
 questions of legitimacy, 341. 
 in cause of jactitation, evidence in ejectment, 34 L 
 not conclusive, 343. 
 
 much less in criminal prosecutions, 345. 
 evidence between what parties, 342. 
 when conclusive as to all, 342. 
 impeachable for fraud, 346. 
 sentence for fornication, not evidence, 336. 
 on validity of will, and right of administration, conclusive, 343. 
 of Admiralty Court, 346. 
 
 sentence of, in questions of prize, 346. 
 effect of, 346. 
 when conclusive, 346. 
 proof of, 349, 393. 
 of Foreign Court, 328, 347, 349, 399. 
 effect of, 348. 
 when conclusive, 348. 
 when not conclusive, 349. 
 when not admissible, 340, 349. 
 of Court of Exchequer, 328, 354. 
 
 inrem. conclusive to all the world, 328, 354. 
 
 particularly as to right of aeizure, 354. ' 
 
 in personam, 354. 
 
 judgment of acquittal, whether conclusive as to illegality of seiz- 
 ure, 355.
 
 INDEX TO VOL. I. 545 
 
 JUDGMENT— coiiiinued. 
 
 of Commissioners of Excise, 355. 
 
 condemnalion by, conclusive of right of seizure, 355. 
 of quarter sessions, discharging order of removal, 329. 
 
 evidence of what, and against vviiom, 329, 330. 
 its effect as to removing parish, 330. 
 privity to person removed, 329. 
 confirming order of removal, 330. 
 of Members of College, when conclusive, 356. 
 of Inferior Courts, when evidence, and to what extent, 380. 
 
 general rule as to proceedings of special and limited jurisdic- 
 tions, 380. 
 proof of, 390, 
 of Foreign Court, in criminal case, 30, 350. 
 
 proof of judgment, 390. • 
 
 examined copy, 3S8, 390. 
 
 examined copy of memorial of assignment of judgment, 388. n. 
 copy of, signed by the master, not evidence, 38C. 
 copy of, by clerk of treasury, not evidence, 388. 
 judgment-book, not evidence, 390. 
 
 JUDGMENT CREDITOR, 
 
 sheriff's return not evidence of payment to, 391. 
 
 JUDGMENT ROLL, 
 
 proof of proceedings upon elegit, 390. 
 
 JURISDICTION, 
 
 rule as to special jurisdictions, 340. 
 
 judgment of courts of exclusive jurisdiction, effect of, 3-10. 
 of courts of inferior jurisdiction, 380, 396. 
 
 JUROR, 
 
 kindred, an objection to, 17. 
 
 JUSTICE OF PEACE, 
 
 may summon witnesses, 14. 
 
 may put witnesses on oath, 14. 
 
 examination taken by, proof of, 399. 
 
 proof of acting as such, evidence of appointment, 226. 
 
 certificate of, as to repair of highways, 382. 
 
 K 
 
 KINDRED. 
 
 objection to juror, 17. 
 
 proof of, as stated in will, by rolls of spiritual court, 496. 
 
 KING, 
 
 address from the lords to, proved by the Journals, 406. 
 address to, proved by Gazette, 407.
 
 646 INDEX TO VOL. I. 
 
 L. 
 
 LADING, 
 
 bill of, when evidence of property in consignee, 256. 
 LANDLORD, 
 
 not competent, in action against sheri/T to prove rent in nrrear, 56. 
 competent to prove whether he demised first to A. or to B., 66. 
 LARCENY, 
 
 finding stolen property in possession of prisoner, evidence against him, 
 
 168. 
 proof of other goods, besides those in the indictment, being in his posses- 
 sion, 170. 
 declarations of party leaving stolen property with prisoner, 234. 
 ^ for stealing written paper, notice to produce unnecessary, 443. 
 
 witness not incompetent for petty larceny, 28, 33, n. 
 incompetent for gnmd, 28. 
 suffering the punishment restores, when, 33. 
 what sufficient property in goods to maintain indictment, 160. 
 
 LAW, 
 
 civil — rules of, as to incompetency of witnesses, 147. 
 foreign — proof of, 401, 403. 
 of colony, proof of, 402. 
 
 LEADING QUESTION, 
 
 not to be put to witness, in general, 268. 
 what questions leading, 268. 
 allowed in cross-examination, 275. 
 
 to what extent, 275. 
 
 in examination in chief, when, 269, 270. 
 in examination of witness, to contradict another, whether regular, 270. 
 depositions, containing leading questions, 364. 
 
 LEASE, 
 
 ancient, when evidence, 253. 
 
 though possession under lease not shown, 253. 
 enrolled in office of bishop's auditor, 415. 
 priority of demise proved by landlord, 66. 
 what implied terms may be proved by parol, 553. 
 parol evidence as to time of holding, 554. 
 counterpart of, evidence against assignee of the term, 443. 
 secondary evidence of, by book of public auditor, 415- 
 agreement for, when exempted from stamp, 526. 
 on life, death presumed when, 197. 
 LEAVE AND LICENCE. See Licence. 
 
 LEDGER BOOK, 
 
 copy of, not evidence, 398. 
 
 of Ecclesiastical Court, when proof of will, 398, 496.
 
 INDEX TO VOL. I. 
 
 LEGATEE, 
 
 effect of payment of legacy to, 137. 
 attesting witness to will, legacy void, 495. 
 connpetent to prove sanity, when, 65. 
 
 in an action by executor to recover a debt, residuary legatee not com- 
 petent, by releasing all claim to the debt, 135. 
 
 LEGITIMACY. See tit. Bastard, non-access. 
 
 birth during marriage, presumptive evidence of, 158, 197. 
 how rebutted, 158, 197. 
 natural infirmity, non-access, &c. 158. 
 child born after divorce a mensa et ihoro, presumed to be illegitimate, 
 
 when, 159, 197. 
 declarations of deceased person, to disprove a supposed marriage, 
 
 240. 
 declaration of husband as to legitimacy of wife, 239, 
 sentence of nullity of marriage, or in affirmance of, conclusive, when, 
 
 336. 
 sentence of ecclesiastical court, when not evidence, 336. 
 interrogatories in chancery, when evidence of, 365. 
 ^ situation of the parties to be proved by extrinsic evidence, 359. 
 
 LESSOR, 
 
 in ejectment, not compellable to give evidence for defendant, 72. 
 
 LETTER. See Mtorney. 
 
 proof of sending by post, 447. 
 
 secondary evidenceof contents of, 458. 
 
 by clerk, 100. 
 
 by agent, 100. 
 
 produced to contradict witness, how to be given in evidence, 296. 
 
 must be read, 296. 
 of co-conspirator, when evidence against another, 95, 98. 
 containing agreement, when exempt from stamp duty, 530. 
 of attorney, by corporate body, to deliver a deed, does not make 
 
 such deed theirs, until actual delivery, 468. 
 secondary evidence of, 452. 
 
 LETTER BOOK, 
 
 entry in, when secondary evidence, 458. 
 
 LETTERS, 
 
 between husband and wife, when evidence, 82. 
 patent constat or inspeximus of, 463. 
 
 LETTERS OF ADMINISTRATION, 
 
 granted without jurisdiction, void, 344. 
 how granted, 398. 
 proved by certificate, 398. 
 
 original book of acts, 398. 
 
 647
 
 648 INDEX TO VOL. I. 
 
 LETTERS OF ADMINISTRATION— co«ri««c</. 
 proved by examined copy, 398 
 not evidence of death of supposed intestate, 344. 
 
 LETTERS PATENT, 
 
 exemplification, evidence of, 463. 
 
 LEVANT AND COUCIIANT, 
 
 averment of, proof, when sufficient, 2H. 
 
 LEX LOCI, 
 
 proved by customary descent entered on court rolls, 418. 
 
 LIBEL, 
 LICENCE, 
 
 magistrate's clerk, when not bound to answer questions, 276. 
 
 presuTied from usage, 164. 
 
 from the crown, how proved, 219. 
 
 old hcences from lord of a manor, for fishing, &c. 253. 
 
 to enclose, when presumed, 164. 
 
 plea of, sheriff's return, evidence under, 301. 
 
 LIGHTS, 
 
 twenty years' possession of, a groundfor presuming an agrqpment or 
 grant, 163. 
 
 LIMITATIONS, (Stat, of) 
 
 admission by wife, 86. 
 LIS MOTA, 
 
 deposition made post litem motam, not admissible, 243, 364. 
 award, post litem motam, 246. 
 meaning of term lix mota, 24.5. 
 
 LLOYD'S BOOK, 
 
 evidence of capture of ship, 414. 
 LOG BOOK 
 
 of ship, evidence to prove time of convoy's s.ai!ing, 414. 
 
 LOSS 
 
 of writings, how proved, 452, 454. (See Secondary Evidence.) 
 
 of record, 386. 
 
 of deed, profert dispensed with in case of, 457. 
 
 lost deed or note, execution of, when to be proved, 452. 
 
 genuineness of note to be proved, 452. 
 when paper thrown aside as useless, 454. 
 in case of death of parties possessed of instrument, 456. 
 LUCID INTERVAL 
 
 of witness, 19. 
 
 LUNACY, 
 
 coroner's inquest of, whether evidence against one claiming as execu- 
 tor, 337. 
 inquisition of, evidence for prisoner of being insane, 375. 
 evidence against third persons, 375. 
 evidence under non est factum, 375.
 
 INDEX TO VOL. I. tJ4g 
 
 LUNATIC, 
 
 incompetent, 18. 
 
 M 
 
 JMAGISTRATE 
 
 may summon witnesses, 14. 
 
 may put witnesses on oatii, 14. 
 
 examination taken by, proof of, 399. 
 
 proof of acting as such, evidence of appointment, 226. 
 
 certificate of, as to repair of highways, 382. 
 
 MAHOMETAN 
 
 may be a witness, 23. 
 sworn on Koran, 23. 
 
 MAKER 
 
 joint, of note, when competent, 67. 
 
 MALICIOUS PROSECUTION, 
 
 action for, 
 
 affidavit used by defendant, when evidence against him, 380. 
 copy of indictment, how obtained, 425. 
 
 evidence, if produced, though without order, 426. 
 defendant's evidence, on trial of indictment, whether admissible, 71. 
 
 MANOR, custom of. See Descent, Court-roUs, Ancient Writings. 
 proof of being bailiff of, 105. 
 
 court-rolls, or other ancient writings of, to prove customs, 253, 418. 
 proof of custom in one manor, not evidence of custom in adjoining 
 
 n-janor, 173. 
 otherwise on a question of tenure, in one of several connected manors, 
 
 173. 
 survey of manor or estate, when evidence, 254. 
 
 MANOR COURT, 
 
 proceedings in, evidence between whom, 417. 
 
 rolls of, evidence between the lord and his tenants, 41 7. 
 
 ancient writings of, evidence of descent, though not signed, 417. 
 
 inspection of court-rolis, 420. 
 
 proof of court-rolls, 424. 
 
 MANSLAUGHTER, 
 
 conviction of, may be on trial for murder, 203. 
 
 MAP 
 
 MARK, 
 
 of estate, or survey, 254. 
 
 attestation of will by, sulHcient, 500. 
 
 Vol. I. 82
 
 650 INDEX TO VOL. I. 
 
 MARKET, 
 
 kept for twenty years, n ground for presuming a grant, 163. 
 
 MARRIAGE, 
 
 contract of, proved by unstamped letters, 525. 
 
 in prosecution for taking by force and n)arrying, the woman is com- 
 petent against the man, 84. 
 on appeal against removal of a woman, as widow, &c. she is compe- 
 tent to disprove the marriage, 87. 
 legality of, determined by ecclesiastical courts, directly, 341. 
 
 by courts of common law, incidentally, 340. 
 entry of, in parish register, 408. 
 proof of, by examined copy, 409. 
 sentence of ecclesiastical court concerning, 341. 
 sentence unnuling, 341. 
 
 in cause of jactitation, when evidence against, 841, 342. 
 sentence in affirmation, 341. 
 
 sentence in proceedings pro salute aniince, not^evidence as to fact 
 of marriage, 337. 
 conviction of bigam)', a proof of illegality of second marriage, in civil 
 
 action, 338. 
 in foreign country, established by sentence in foreign court, 349. 
 copy of register of, in foreign chapel, not evidence of, 410, 411. 
 
 MARRIED WOMAN. See Wife. 
 
 MASTER, 
 
 in action against, for negligence of servant, servant not competent for 
 him, 56. 
 
 MASTER OF SHIP, 
 
 in action by, for freight, the declarations of the owner of the ship are 
 evidence against the plaintiff', 91, 92. 
 
 MEDICAL MEN, 
 
 allowance to, for loss of time in attending as witnesses, 7. (a) 
 
 MEMORANDUM. See Entry. 
 
 written, used to refresh memory, 289. 
 
 not evidence per se, 458, 220, 221. 
 minutes of examination before magistrates, 115. 
 agreement unsigned, used as, 221. 
 unstamped receipt, used as, 518. 
 entry in tradesman's book, 266. 
 of payment, endorsed on a deed, not conclusive, 549. 
 
 MEMORIAL 
 
 of annuity, examined copy of enrolment of, 464. 
 of assignment of judgment, proof of, 388, n. 464, n. 
 of registered deed, when evidence, 218, 464, n. 
 examined copy of memorial of assignment of deed, 464, n.
 
 INDEX TO VOL I. 
 
 MERCHANTS' BOOKS, 
 
 evidence of what, 264. See tit, Tradesvian. 
 
 MENSE PROFITS, 
 
 trespass for, 336. 
 judgment after verdict, its effect, 336. 
 
 MIDWIFE, 
 
 memorandum made by, 256. 
 
 MILITARY OFFICER, 
 
 proof of being, from liis acts, 226. 
 
 MINISTER, 
 
 certificate of minister abroad, as to marriage, 382. 
 minister's returns, under commission of Hen. VIII.- 
 not be shown, 392. 
 
 651 
 
 -commission need 
 
 MINOR, 
 
 answer of, by guardian, not evidence against minor, 362. 
 evidence against guardian, 362. 
 
 MISDEMEANOR, 
 
 expense of witness when allowed in trial for, 12. 
 
 in prosecutions for, defendant entitled to copy of indictment, 426. 
 
 information of witness respecting, when evidence, 370. 
 
 MISTAKE, 
 
 confession made under, 111. 
 
 no ground for allowing parol evidence to vary a written agreement, 
 
 672. 
 in deed, rectified in equity, when, 576. 
 in will, may be shown, when, 532. 
 in giving a receipt, 108. 
 in bill of particular, 191. 
 in surrender of copyholder, 540. 
 
 MODUS. See Tithes, Rector, Book, Receipt, Entry. 
 
 persons liable to tithes, not competent to prove modus, 57. 
 modus decimandi presumed from usage, 162. 
 
 de nan decimando, not presumed from usage alone, 162. 
 in question of farm modus, proof of exemption of other farms not ad- 
 missible, 175. 
 proof of payments for other farms, when admissible to disprove mo- 
 dus, 175. 
 modus of farm, terrier evidence of, 425. 
 
 hearsay evidence admissible, 250, 251, n. 
 terriers, from private custody, inadmissible, 420. 
 
 vicar's signature to, not essentially necessary, 420. 
 when evidence for succeeding rector, 420. 
 entry in parish register respecting, when evidence for vicar, 261. 
 entries respecting death of parties, to be shown, 261. 
 situation of, 259.
 
 652 INDEX TO VOL. I 
 
 MODUS — continued. 
 
 transcript in ancient chartulary, 459. 
 
 silence concerning, in parliamentary survey, 405. 
 
 existence of, not mentioned in T^alor Beneficiorum, 404. 
 
 declarations of deceased oi;cupier, evidence of parochial modus, 250. 
 though liable to tithes, 251. 
 
 hearsay, that so much per aero was paid, is evidence, 250. 
 
 hearsay, that a particular person paid so much in lieu of tithes, not 
 evidence, 250. 
 MONEY. See Payment into court. 
 
 MONUMENTS, 
 
 inscription on, evidence of pedigree, 239. 
 
 MURDER, 
 
 conviction of, on indictment for [)etit treason, 203. 
 
 manner and msar.s of killing, as proved, must agree in substance with 
 
 those laid, 203. 
 on indictment for murder of officer in execution of his office, proof of 
 his authority not material, 204. 
 
 the special matter may be given in evidence on a gen- 
 eral indictment, 204. 
 evidence of former grudges, 180. 
 acquittal in foreign country may be pleaded in bar, 350. 
 
 NATIONAL CUSTOM, 
 
 proof of, 423. 
 
 NAVIGATION, 
 
 acts of foreign stale, how proved, 401, n. 
 
 NA,VY OFFICE, 
 
 book of, evidence to prove a sailor's death, 413. 
 
 NEGATIVE. See tit. Affirmalive. 
 
 of issue when to be proved, 195. 
 
 where breach of duty alleged, 195. 
 
 where a person is charged with doing the act complained of 
 " without giving due notice," 195. 
 on indictment for coursing deer, " without the consent of 
 
 the owner," 19fi. 
 on an issue upon the death of a particular person, the par- 
 ty asserting the death has to prove it, 197. 
 of qualification, 198. 
 where the law presumes in favor a plea, the plaintiff is to disprove 
 
 it, 197. 
 plaintiff is to prove facts of which he is cognizant, necessary for his 
 * case, 198. 
 
 negative when not to be proved, 195.
 
 INDEX TO VOL. I. 653 
 
 NEGATIVE.— co72<?wMei 
 
 on a charge of culpable omission, 195. 
 examples, 195. , 
 
 NEW SOUTH WALES, 
 
 evidence of witnesses, for trials in courts of N. S. W., how procured, 
 16. 
 
 NEWSPAPERS, 
 
 notice of dissolution of partnership in, 40S. 
 
 NICHOLAS (Pope) 
 
 taxation by, account of, 404. 
 
 evidence of value of livings, 404. 
 
 NIL DEBET, 
 
 » plea of, in debt for penalties, 319, 320. 
 NISI PRIUS RECORD, 
 
 evidence of cause being tried, 231, 3S9. 
 
 when evidence of verdict, 389. 
 NOLLE PROSEQUI, 
 
 to make defendant witness, 74. 
 
 NONARUM, 
 
 inquisitiones, history of, 405. 
 NON-ACCESS, 
 
 not to be proved by the wife, 241. 
 
 not even after the husband's death, 87. 
 nor by the c^clarations of deceased parents, 241. 
 but the criminal connection may be proved by the wife, 87. 
 NON ASSUMPSIT. See tit. Agreement, Assumpsit, &c. 
 NON ATTENDANCE. See Aiiciidtrice. 
 NON EST FACTUM, 
 
 inquisition of lunacy, evidence under, 375. 
 
 loss of deed cannot be proved by plaintiff, after pleading profert, 463. 
 
 proof of execution of deed dispensed with, on payment of money into 
 
 court upon one of the breaches, 465, n. 
 after judgment by default against one of two defendants, plaintiff may 
 
 elect to be nonsuited as to the other, 186, n. 
 plaintiff may elect to be nonsuited after payment of money into court by 
 defendant, 187, n. 
 
 NON JOINDER. See Partner. 
 
 must be pleaded in abatement, 210. 
 NOTARY PUBLIC, 
 
 protest attested by, evidence, 382. 
 NOT GUILTY, 
 
 defendant cannot show under general issue, in action of tort, that 
 others besides the plaintiff ought to join, 210. 
 may plead it in abatement, 210. 
 in trespass, 
 
 for assault on plaintiflfs wife, plea of not guilty admits the marriage, 
 171.
 
 654 INDEX TO VOL. I. 
 
 NOTICE, 
 
 in action for putting on board of ship combustible matter, without no- 
 tice, the plaiiitifT should prove the negative, 195 
 of action, proof of, 446. 
 of bankruptcy in Gazette, 408. 
 of dissolution of partnership, in newspaper, 40S. 
 to produce papers on trial, 439. 
 service of, 439. 
 
 papers in possession of a party, 440. 
 effect of, 339. 
 to whom given, 3. 
 to party or his attorney, 3. 
 proper time for producing, 441. 
 when necessary, 442. * 
 
 papers in possession of third persons — notice to the party, 
 
 when sufficient, 440. 
 calling for papers, after proof of notice, 441. 
 inspecting them, when produced, makes them evidence, 
 
 441. 
 party, when compellable to produce, 436, 437. 
 if a trustee, 436. 
 
 in action by seamen for wages, 437. 
 when the other party is interested in the writing, 
 437. 
 proof of notice, 445. 
 
 parol evidence of notice, 446. 
 
 duplicate original, 445. 
 
 examined copy, 446. 
 
 notice in writing, and by parol, at same time, may 
 
 be proved in either form, 446. 
 notice sent by the post, 447. 
 
 if attested, to be proved by attesting witness, 464. 
 after proof of notice, contents of paper how proved, 
 439. 
 not necessary, where nature of action is sufficient ^notice, 
 441. 
 
 in trover for bond, 441. 
 in prosecution for stealing note, &c. 442. 
 in other criminal cases, 442. 
 larceny, 442. 
 high-treason, 442. 
 where possession on the other side is fraudulent, 
 442. 
 whether necessary, in case the writing is in court, in the ad- 
 verse party's possession, 443.
 
 INDEX TO VOL. I. 
 
 NOTICE— continued. 
 
 counterpart of deed, when evidence, without notice to produce 
 
 the original, 443. 
 deed produced under notice, to be proved by the other party 
 vvhen, 448. 
 when not, 448. 
 entire writing to be read, 451. 
 and other writings, if referred to, 451. 
 of dishonor of note, proof of notice, 
 
 proof of notice, 445. 
 to quit, 
 
 admission by not objecting to, lOS. 
 proof of, 445. 
 
 NUL TIEL RECORD, 
 
 proof of issue on, 384. 
 
 where the record is in the same court, 384. 
 where in another court, 385. 
 
 665 
 
 o 
 
 OATH. See Swearing. 
 
 evidence of witnesses, for prisoners in capital cases, formerly taken 
 
 without oath, 21, n. 
 of witness, how administered, 21, 22. 
 
 effect of, 21. 
 examination previous t(^ swearing, 23. 
 examination as to opinions, 24. 
 as to form of swearing most binding on witness, 23. 
 peers sworn like other witnesses, 21, n. 
 of office as to secrecy, how understood, 145. 
 taking of oaths under the toleration act, how proved, 219. 
 
 OBLIGEE, 
 
 OBLIGOR, 
 
 release by co-obligee operates as a release by all, 134. 
 cannot compel obligor to produce copy of bond, 438. 
 
 release to co-obligor operates as such to others, 134. 
 
 OCCUPATION. See tit. Use. 
 
 entry in book of land-tax collector, evidence respecting, 256. 
 
 OCCUPIER, 
 
 clainiiug under u custom, not competent in support of such a custom, 
 
 57. 
 hearsay of, respecting parochial modus, 250. 
 
 respecting parochial or manorial boundary, 250. 
 
 when evidence, 258. 
 declaration of against interest, 258. 
 
 to negative adverse possession, 258
 
 656 
 
 OFFICE, 
 
 INDEX TO VOL I. 
 
 inquisition of, 375. 
 
 evidence against whom, 875. 
 by escheators, coimiiissioner, slieriff, &c. 874. 
 by order of House of Commons, respecting fees, 375. 
 not evidence, when extrajudicially taken, 375. 
 
 ns, by sherifPs jury, on question of property, 875. 
 proof of, 392. 
 
 commission ought regularly to be shown, 392. 
 books of, when evidence, 413. See Book. 
 
 ' office-copy of record, in same cause and in same court, equivalent to 
 the record, 387. 
 
 OFFICER, 
 
 rule of court, under hand of, 388. 
 
 of public company, making entry in company's books, need not be 
 
 called, 260. 
 competent witness, when, 51. 
 
 though liable to information, 51. 
 proof of acting as public officer, evidence of being such, 226. 
 of customs, official paper kept by, when evidence, 415. 
 
 OFFICIAL COMMUNICATIONS, 
 
 when not to be disclosed, 284. 
 
 OFFICIAL RETURNS, 
 
 when evidence, 415. 
 OLD WRITINGS, 
 
 proof of, 417, 418. 
 
 custody of, to be shown, when, 479. 
 
 usage, when admissible to explain, 540. 
 
 OMISSION, 
 
 OPINION, 
 
 ORDER 
 
 of name in will, not to be supplied by parol evidence, 539. 
 in written instruments, 540. 
 
 examination as to religious opinion, 24. 
 of v\'itness, when evidence, 290. 
 
 on question of science or art, 290. 
 
 of medical men, as to insanity, cause of death, &c., 290. 
 
 in matters of trade, 290. 
 
 of underwriters, 290. 
 
 of artists, 291. 
 
 as to genuineness of hand-writing, 492. 
 general, evidence of public rights, 248. 
 
 not evidence of private rights, 249. 
 
 of cDurt of equity for reading depositions, 363.
 
 INDEX TO VOL. I. g57 
 
 ORDER — continued. 
 
 of judge for production of papers, 438. 
 of bastard)', appeal against, 86, 87. 
 of removal not appealed against, effect of, 330. 
 
 of sessions, confirming order of removal, conclusive as to third parish, 
 330. 
 discharging, conclusive only that the settlement was not 
 with the appellants, 329. 
 
 ORDINARY, 
 
 purgation by, 32. 
 
 certificate of, when conclusive on legality of marriage, 342. 
 faculty from, presumed in the case of a pew claimed, as appurtenant 
 to a messuage, 163. 
 
 OUSTER, 
 
 judgment of, on an information, 325, n. 
 
 OUTLAWRY, 
 
 judgment of, in treason and felony, renders incompetent, 29. 
 
 in personal action, otherwise, 29. 
 proof of judgment of, 30. 
 competency restored by reversal of outlawry, 31. 
 
 OVERSEER, 
 
 parol evidence of appointment of, when admissible, 454. 
 
 OVERT ACT 
 
 of treason, confession of, if offered as the sole evidence of such overt 
 
 act, must be proved by two witnesses, 117. 
 no overt act of distinct treason to be proved, unless laid in the indict* 
 ment, 178. 
 
 or unless it conduce to the proof of some laid, 178. 
 of treason, committed in a foreign country, admissible in corrobora- 
 tion, 178. 
 
 OVl^NER 
 
 of land, not competent to disprove a charge attached to all land in tho 
 
 district, 57. 
 of ship, his declarations are evidence against him, if the action is 
 brought for his benefit, 91. 
 in action by, for putting on board combustible matter without due 
 notice, plaintiff must prove the negative, 195. 
 
 OWNERSHIP, 
 
 possession prima facie evidence of, 160. 
 
 in land, not proved by acquiescence of holder of adjoining land, 176. 
 
 PAPAL BULL, 
 
 evidence of exemption from tithes, 421. 
 
 Vol. I. 83
 
 668 
 
 PARDON. 
 
 PARISH, 
 
 INDEX TO VOL. I. 
 
 effect of, in restoring competency of witness, 35. 
 
 in case of perjury, 35. 
 conditional pardon, 36. 
 under sign manual, by 7 and 8 G. 4, 36. 
 suffering of punishment operates as a pardon, when, 33. 
 
 name, by repute, of, 216. 
 
 inhabitant of, competent, tiiough penally given to the poor, when, 
 127. 
 
 in action against church-wardens for money misspent, 
 
 126. 
 in prosecution for non-repair of highway, not competent 
 
 for defendants, 127. 
 in prosecution under highway act, when, 127. 
 rated, competent on question whether lands are vested 
 in governors, 127. 
 
 competent by stat. 54 G. 3, c. 170, in any mat- 
 ter relating to rates, boundaries, settlements, 
 &c., 128. 
 declarations by, when evidence against tlieir 
 parish, 85, 129. 
 register, when first commenced, 409. 
 proof of marriage, 410. 
 entry of marriages, how to be made, 409. 
 copy of, to be transmitted annually to registrar of diocese, 
 
 409. 
 not to be contradicted by day-book, 516. 
 entry in, as to modus, 261. 
 inspection of, when granted, 433. 
 book for copies of rates, 413. 
 
 for account of parish indentures, 413. 
 containing entries of payment of tithes, 409, n. 
 vestry-book, 414. — 
 
 examined copy of register, evidence, 409. 
 variance in proof of averment of parish, 215, 216. 
 
 PARLIAMENT, 
 
 parliamentary surveys, evidence, 405. 
 journals of the House of Lords of, 406. 
 
 not evidence of the facts stated in the judgment, 406. 
 
 proof of address to the king, 406. 
 journals of the House of Commons, 406 
 
 proof of entry in, 407. 
 acts of, 316. 
 
 general, what, 317. 
 
 public and private, 317.
 
 INDEX TO VOL. I. 659 
 
 PARLIAMENT— con/j«ue(i. 
 
 acta of, public, when to be taken notice of judicially, without being set 
 forth, 318. 
 
 preamble of, evidence, 319. 
 when evidence, without pleading, Sli). 
 proof of, 317. 
 private, 317. 
 
 when to be noticed judicially, without pleading, 318. 
 recognized by public act, 318. 
 proof of, 383. 
 
 special clause concerning, 319, 383. 
 proof as against a party acting under it, 384. 
 
 PARLIAMENTARY SURVEY, 
 
 copy of, evidence, 405. 
 
 PAROL AGREEMENT, 
 
 discharged by parol, 563. 
 
 discharge of, a good defence in equity to bill for specific performance, 
 565. 
 
 PAROL EVIDENCE. See Agreement, Usage, Blank. 
 
 of confession before a magistrate, when admissible, 113. 
 
 when admissible, where there has been a written memorandum, or 
 
 receipt, 220, 221. 
 not admissible to prove contents of unstamped instrument, which re- 
 quires a stamp, 504. 
 though such instrument wilfully destroyed by one of the parties, 504. 
 as to situation or estate of party, 543. 
 as to indefinite term of power, 545. 
 
 conversations contemporaneous with written contracts, 561. 
 conversations subsequent to, 562. 
 proof of collateral facts to show intention, 562. 
 to discharge written agreements, 565. 
 to supply blank in presentation, 540. 
 to explain ambiguities, when admissible, 531. 
 where writing refers to an extrinsic fact, 546. 
 respecting parcels of things demised, 544. 
 latent ambiguity, 531. 
 
 mistake in name of devisee in will, 532, 536. 
 in description of fund, 533. 
 in description of estate, 534. 
 patent ambiguity, 633. 
 
 as, uncertainty in devise, 538. 
 omission of name in will, 539. 
 
 in written instruments, 540. 
 in bishop's register, 540. 
 in surrender of copyhold, 540. 
 to give effect to a will, 633.
 
 6 GO INDEX TO VOL. I. 
 
 PAROL EVIDENCE— co/zfmuei. 
 
 to show fraud, 551, 552. 
 
 to show intention by proof of collateral acts, 562. 
 
 not to control or enlarge a will or deed, 548, 549, 
 
 not to vary the terms of a deed, 548. 
 
 not to show different condition, 548. 
 
 not to disprove consideration, 549. 
 
 except to prove fraud, &c ,551. 
 
 another consideration or use may be shown, when, 549. 
 delivery on a diflereut day may be shown, 553. 
 customary right, not expressed in a deed may be proved, 553. 
 as, for an heriot, or way-going crop, 553. 
 but, if inconsistent with the deed, it cannot bo shown, 
 654. 
 not to vary the time of holding, 554. 
 policy of insurance, 554. 
 charter-party, 555. 
 promissory notes, 555. 
 mercantile contracts, 556. 
 agreements within the statute of frauds, 550. 
 other written agreement, 563. 
 rule in equity, concerning the admission of parol evidence, 666. 
 
 as to defendant^ on a bill for specific performance, 568. 
 as to ■plaintiff, 570. 
 as to cases of part-performance, 575. 
 to rectify mistakes in deeds, &c., 576. 
 to raise trusts in wills, 577. 
 
 PARSON, 
 
 entry by deceased, evidence for successor, 260. 
 
 in action against, for non-residence, what sufficient evidence of his 
 
 being parson, 227. 
 in suit in ecclesiastical court for tithes, where defendant pleads that 
 
 the plaintiff (the parson) had not read the 39 articles, defendant 
 
 ought to prove the negative, 195. 
 
 PART-PERFORMANCE 
 
 of agreement, what constitutes, 575. 
 
 PARTICULARS (BILL OF) 
 
 under judge's order, 190. 
 
 its use and effect, 190. 
 
 confines the party in his proof, 190. 
 
 delivery of second bill, effect of, 190. 
 
 not abridged by subsequent demand, 190. 
 
 mistake in, when immaterial, 191.
 
 INDEX TO VOL. I. QQ\ 
 
 PARTICULARS (BILL OF)— coniiimed. 
 clerical error in, 192. 
 error in date in, 192. 
 error in description of premises, 192, n. 
 whether plaintiff may recover beyond the particular, in consequence 
 
 of defendant's evidence, 192. 
 where some of the items furnished on joint credit, and there is a plea 
 
 of non-joinder, 161, 192. 
 interest on promissory note may be recovered, though not claimed in 
 
 particular, 191. 
 delivery of, 193. 
 
 particular not delivered in proper time, what is to be done, 193. 
 proof of, 193. 
 
 PARTNER, DORMANT, 
 
 competency of, 49, n. 
 
 when not a party to a contract, whether ho may prove it, 49, n. 
 
 PARTNER, 
 
 when a competent witness, 60, 67. 
 
 when not, 59, 60. 
 
 interest of, cannot be released, 60. 
 
 release to, 134. 
 
 admission by, evidence against another, when, 92. 
 
 answer of one partner, to bill filed, when evidence against another, 
 
 362. 
 one partner may disprove the authority of another to draw a bill on 
 
 the partnership, 67. 
 or to make a contract for sale of goods, for his separate debt, 68. 
 verdict, on an issue to try the fact of partnership, when evidence of 
 
 partnership, 332. 
 on proof of a sale to defendant and A. B. as partners, A. B. cannot 
 
 prove that he bought as the servant of defendant, 59. 
 notice of dissolution of partnership, how given, 408. 
 
 PARTNERSHIP, 
 
 pleaded by way of abatement, cannot be proved by a partner, 60. 
 former verdict, proof of, 332. 
 
 PARTY, 
 
 when privileged from arrest, 4. 
 
 incompetent to give evidence, 69. 
 
 really interested, though not technically a party, incompetent, 72. 
 
 though only trustee, 69. 
 
 governors of the poor, liable to costs of appeal, 69. 
 
 suing in corporate capacity, 69.
 
 662 INDEX TO VOL I. 
 
 PARTY— confinucd. 
 
 order for examination of, effect of, 70. 
 examined by order of court of equity, 70. 
 admission by, 89. See tit Admission. 
 competency of, exceptions as to, 70. 
 
 in action on stat. of hue and cry, 70. 
 in action for malicious prosecution, 71. 
 members of corporation, competency of, 
 compellable to produce papers, when, 435, 436. 
 not compellable to give evidence, 72. 
 
 rated inhabitants, on question of appeal, 72. 
 lessors of plaintiff in ejectment, 72. 
 co-plaintiff witness against another, 72. 
 defendant improperly joined, how t6 be admitted, 72. 
 co-trespasser, 72. 
 
 co-defendant, pleading bankruptcy, not competent, 74. 
 co-defendant submitting and fined, 74. 
 
 in ejectment, how made a witness, 76. 
 in indictment, 74. 
 in action on contract, 75. 
 in action of tort, 75. 
 defendant suffering judgment by default, when competent, 74, 
 75. See Co-plaintiff, Co-defendant, Co-trespasser. 
 for co-defendant, 75. 
 against co-defendant, 75. 
 witness made defendant by mistake, 76. 
 party to instrument, when allowed to invalidate it, 43. 
 PATENTS, 
 
 how pleaded and given in evidence, 463. 
 
 PAUPER, 
 
 examination of, as to his settlement, not evidence after his death, 376. 
 
 PAYEE, 
 
 competency of, 43, 61, 67. 
 
 PAYMENT, 
 
 to judgment creditor, 
 
 sheriff's return, not evidence of, 391. 
 to third person by plaintiff's appointment, is payment to plaintiff him- 
 self, 200. 
 memorandum of payment endorsed on deed, not conclusive, 549. 
 
 PAYMENT INTO COURT, 
 
 its effect as an admission, 187. 
 
 though paid by mistake, cannot be recovered back, 187. 
 plaintiff may be nonsuited, after payment into court, 187, n. 
 admission of legal demand to a certain extent, 187.
 
 INDEX TO VOL. I. 663 
 
 PAYMENT INTO COURT— continued 
 
 generally, upon the whole declaration, it3 effect, ISS- 
 
 admits jurisdiction of the court, 188. 
 
 admits execution of deed, 188, 465, n. 
 
 admits plaintiff's title to sue, 188. 
 
 admits contract, to what e.vtcnt, 187. 
 
 admits that contract, within statute of frauds, was in writing, 188. 
 
 admits that policy has not been altered, 188. 
 
 admits sufficiency of stamp on bill, 1S8. 
 
 dispenses with proof of hand-writing, in an action on bill of exchange, 
 188. 
 
 dispenses with proof of deed, 465, n. 
 
 does not waive objection, that contract illegal, 189. 
 
 does not admit collateral parts of contract, as to liquidation of dam- 
 ages, 189. 
 
 precludes defendant from disputing the quality of goods sold by sam- 
 ple, 18S. 
 
 upon a breach of covenant, dispenses with proof of execution of deed 
 on plea of non est factum, 465, n. 
 
 production of the rule by defendant, does not give the reply to plain- 
 tiff, 1S9. 
 
 proof of payment into court, 189. 
 
 PEDIGREE. See Descent, Ejectment. 
 
 bill in Chancery, not evidence of pedigree, 359. 
 
 relationship of parties must be proved by extrinsic evidence, 359. 
 special verdict, between third parties, whether evidence, 328. 
 visitation-books of counties, 421. 
 proof of by hearsay, 238. 
 verdict, evidence of, 324. 
 
 dying declaration of a person as to relationship between other 
 persons, not evidence, 236. 
 (See Hearsay on question of Pedigree.) 
 
 PEERS, 
 
 entitled to benefit of clergy without burning in the hand, 34. 
 sworn as another witness, 21, n. 
 
 PENAL STATUTES, 
 
 in action under, proviso containing exemption may be shown, 320. 
 evidence of statutes under general issue in, 319. 
 
 PENALTIES, 
 
 action for, 
 
 proviso containing exemption may be shown, 320. 
 
 PERAMBULATION, 
 
 evidence of boundary of parish, 249.
 
 664 INDEX TO VOL. I. 
 
 PERFORMANCE, 
 
 pica of, in action of covenant, admits part of deed set out, 171. 
 PERJURY, 
 
 proof of, by a single witness, not sufficient, 151. 
 conviction of, incapacitates witness, 28. 
 
 effect of pnrdon in restoring, 35. 
 party injured, competent witness, oh prosecution for, 120, 121. 
 proof of defendant's oath to answer in Chancery, 394. 
 several indictments against several, — defendant in one case competent 
 
 for defendant in another, 47. 
 on indictment for, in answer to a bill of injunction filed by B., B. is 
 is competent, 50. 
 PETITIONING CREDITOR, 
 
 fact of creditor proving before commissioners, not evidence, 107. 
 declarations by petitioning creditor, admissible in action against sher- 
 iff, 91. 
 PETIT LARCENY, 
 
 disqualified a witness at common law, 28. 
 * no disqualification now, 28. 
 
 PETIT TREASON, 
 
 on indictment for, prisoner may be found guilty of murder, 203. 
 
 PEW, 
 
 usage of, when a ground for presuming a faculty, 163. 
 PHYSICIAN, 
 
 examined as to confidential communications, 144. 
 
 PILLORY, 
 
 PLACE, 
 
 punishment of, abolished, except for perjury, or subornation of perjury, 
 30, n. 
 
 does not disqualify a witness, 30. 
 
 variance in proof of, 215. 
 
 PLENE ADMINISTRAVIT, * 
 
 plea of, admits being administrator, 171. 
 POLICY OF INSURANCE, 
 
 subscription of, by agent, 104. 
 
 action on, rule for production of papers, 438. 
 
 person for whose benefit policy effected, not competent, 63. 
 
 construed with refference to usage of merchants, 556. 
 
 not to be contradicted by usage, 557. 
 
 alteration of, its effect with regard to the stamp, 513, 517. 
 
 with consent, 513. 
 
 to correct mistake, 517. 
 policy by agent, 
 
 general authority of agent to subscribe policies, 104. 
 receipt of premium, 159, n.
 
 INDEX TO VOL. I. 665 
 
 POLICY OF INSURANCE— con<t7i7(er/. 
 
 competency of witnesses, 4b 
 
 underwriter subscribing same policy, 47. 
 broker competent, 4S. 
 
 declarations of party interested, when admissible, 92. 
 captain, when competent to prove ship's original destina- 
 tion, 49. 
 not competent on question of deviation, 49. 
 
 POLL-BOOK, 
 
 at election, evidence, 415. 
 
 POLYGAMY. See tit. Bigamy. 
 
 POPE, 
 
 bull of, 421. 
 licence from, 421. 
 
 POSSESSION, 
 
 prima facie evidence of property, 160. 
 
 ground for presuming a grant, when, 157, 161, 162. 
 
 remarks on such proof, 165, 166. 
 effect of, in explaining terms of grant, 543. 
 stolen property found in prisoner's possession, 168. 
 
 remarks on such proof, 169. 
 writing in possession of party, proof of, 440. See Custody. 
 adverse possession See Presumption ■ 
 
 POST, 
 
 POSTEA, 
 
 POWER, 
 
 proof of sending letter or notice by, 447. 
 
 contents of such letter, how proved, 458. 
 
 endorsed, when evidence of verdict, 3S9. 
 
 evidence that cause was tried, 231, 389. 
 
 may be produced by associate, 3S9. 
 
 with the master's allocatur, evidence of costs, 389, n. 
 
 warrant or order under, how executed, 470, 471. 
 deed under, how e.tecuted and attested J' 468, 469. 
 in the execution of, all circumstances required by creators of such 
 
 power, must be attended to, 468. 
 indefinite term of, explained by parol, 545. 
 
 POWER OF ATTORNEY, 
 
 in proving deed executed under, power must be prodaced, 104, 466. 
 
 secondary evidence of, 452, 459, n 
 
 question on secondary evidence of, in Lord Melville's case, 453. 
 
 PRACTICE, 
 
 motion to put off trial, 16. 
 
 in foreign coarla how proved, 399. 
 
 Vol. I. 84
 
 QQQ INDEX TO VOL. I. 
 
 PR^MUNIRE, 
 
 * disqualifies witness, 2S. 
 
 PREAMBLE, 
 
 public act of parliament, evidence, 31S 
 
 PRESCRIPTION, 
 
 person claiming by, competent, 58. 
 
 must be proved as stated, 205. 
 hearsay not evidence of prescriptive right 261. 
 unless it affect a public right, 252. 
 
 PRESENTATION, 
 
 by parol, 252, n. 
 Gazette, not evidence of, 408. 
 hearsay, not evidence of, 252. 
 blank in, supplied by parol, 540. 
 
 PRESUMPTION AND PRESUMPTIVE EVIDENCE, 
 nature of, 155, 166. 
 presumption of law, — of fact, 157. 
 presumptive evidence, of legitimacy, 158, 197. 
 from fact of birth during marriage, 158, 197. 
 how rebutted, 158. 
 presumption of payment, 159. 
 
 of payment of bond after 20 years, 197. 
 how rebutted, 197. 
 release of quit-rent not presumed from non-payment, 160. 
 possession prima facie evidence of property, 160. 
 grants, agreements, licence, easements, &c., presumed from usage, 
 
 161. 
 presumption of ownership, from acts on adjoining land, 174. 
 presumption of grant not necessary, when possession can be otherwfise 
 
 explained, 162. 
 deed of composition not presumed merely from usage, 163. 
 grant presumed against reversioner, from permission of tenant, when, 
 
 166. 
 circumstantial evidence in criminal cases, 166. 
 death presumed at the end of seven years, 197. 
 
 PRINCIPAL, 
 
 how far affected by admission of agent, 99. 
 
 declaration of, when evidence against surety, 258. 
 
 in criminal cases, how far affected by act of agent, 102. 
 
 entries made by him in his account, when evidence against his 
 
 surety, 258. 
 in second degree, charged as principal in first degree, not a variance, 
 
 204. 
 charged as such, cannot be convicted as accessary, 204. 
 conviction of, evidence against accessary, when, 331.
 
 INDEX TO VOL. I. 667 
 
 P R INCIFAL— continued. 
 
 witness ngainst accessary, on indictment for receiving stolen goods, 40. 
 or for tailing reward to help tC stolen goods, 40. 
 
 PRISON, 
 
 book of, evidence to prove Hme of commitment, 414. 
 not evidence of tho came, 414. 
 
 PRISONER, 
 
 witness for, formerly not sworn, 8. 
 evidence as to character of, 177. 
 examination of prisoner. See Examination. 
 as to settlement, 377. 
 
 PRISONER OF WAR, 
 
 examined on interrogatories, 5. 
 brought up as witness, how, 6. 
 
 PRIVILEGE OF WITNESS, 
 
 from arrest during attendance on trial, 4. ■ 
 when, 4. 
 how long, 4. 
 before arbitrator, 5. 
 
 insolvent debtors' court, 5. 
 commissioners of bankrupt, 5. 
 court-martial, 5. 
 in going, staying, and returning, 4. 
 in not giving evidence, what, 276. 
 
 1. when the action might subject to penalties, 276. 
 
 2. or subject to civil suit, 278. 
 
 3. or subject to forfeiture, 278. 
 
 4. or degrade the character, 278. 
 
 questions reflecting on character may be asked, 279. 
 
 PRIVILEGED COMMUNICATIONS, 
 
 what, not to be disclosed, 284. 
 communications between attorney and client, 140. 
 official communications, 287. 
 rule as to informer, 284. 
 
 PRIVY, 
 PRIZE, 
 
 when estopped by verdict, as well as party, 324. 
 
 sentence on question of, in Admiralty Court, 346. 
 
 PROBATE. See Ecclesiastical Court. 
 
 of will of personal property, 344, 397. 
 
 conclusive of validity of will, when, 344. 
 
 not conclusive in criminal cases, 344. 
 
 for what causes impeachable, 344. 
 
 forgery of, may be shosvn by adverse party, 344. 
 
 proof of executors' title, 344. 
 
 conclusive as to being executor, 344.
 
 QQQ INDEX TO VOL. I. 
 
 PROBATE— continued. 
 
 seal of ecclesiastical court need not be proved, 897. 
 
 in case of probate b^inferior court, bona notabilia may be shown, 344. 
 
 probate of will of real property, not evidence of will, 344, 397. 
 
 not evidence of relationship, 344, 397, 496. 
 proof of will in ecclesiastical court, 397. 
 revocation of probate, proof of, 39S. 
 examined copy of lost probate, evidence, 397. 
 exemplification of probate, 397. 
 copy of leger-book, 398. 
 
 PROCESS 
 
 * of eubpcEna. See tit. Subpcena. 
 
 PROCHEIN AMY. 
 
 not competent, in suit by infant, 59. 
 
 PROCLAMATION, 
 
 proved by Gazette, 407. 
 
 for discovery of offences, evidence of the facts, 407. 
 
 of fine, how proved, 3S9. 
 
 PRODUCTION OF WRITINGS. See also tit. Inspection. 
 process for compelling, 3. 
 party when compellable to produce, 435. 
 party when excused, 436. 
 
 where two parties executed, each of whom had a part, 438. 
 notice for, 439. 
 
 proof of notice to produce, 445. 
 
 when dispensed with, 441. 
 
 rule as to proof, 449. 
 
 where party claims under instrument, 449 
 
 in actions between landlord and tenant, 451. 
 
 against sheriff, 451. 
 
 deed produced, under notice, how to be proved, 448. 
 
 exceptions to general rule, 449. 
 
 how much to be read, 451 . 
 
 rule of court for, to get the writing stamped, 437- 
 
 judge's order for, in action on policy, 438. 
 
 PROFERT 
 
 of deed, when dispensed with, 457, 457, n. 
 
 bargain and sale pleaded with, — copy of enrolment may be shown, 
 when, 461. 
 
 PROMISSORY NOTE, 
 
 alteration of, when makes new stamps necessary, 512. 
 
 not evidence under the money counts, when particular includes only 
 
 the demand on note, 190. 
 consideration, 232.
 
 INDEX TO VOL. I. 669 
 
 PROOF. See tit. Evidence, Presumptive, Witness. 
 
 PROPERTY. See tit. Trespass, Trover, Src. 
 
 presumptive evidence of, from possession, 160. 
 
 PROSECUTOR, 
 
 competent witness, 110, 120. 
 
 though entitled to reward or penally, 12G. 
 
 general rule, 120. 
 
 exception in case of forgery, 121. 
 
 in case of forgery, not competent, when, 121. 
 
 party injured not allowed to prove any material fact, 121. 
 
 competent if not liable on forged insrument, 122. 
 
 as cashier of Bank of England, 122. 
 
 or where the banker has not debited the party, 122. 
 
 or after release, 122. 
 
 in civil suit, if incidental or collateral question arise as to the gen- 
 uineness of a written instrument, the party is competent, 123. 
 expences of, allowed under stat. 7 G. 4. c. 64., 11. 
 agent of, how far his conduct is examinable by defendant in a prose- 
 cution, 103. 
 
 PROTEST, 
 
 of bill of exchange, 382. 
 
 PROVISO IN STATUTE, 
 
 when evidence under general issue, 320. 
 
 PUBLIC BOOKS. See til. Books. 
 
 entry in, proved by examined copy, 424. 
 inspection of, 430, 431. 
 who may inspect, 431. 
 
 PUBLIC RIGHTS, 
 
 proof of, by hearsay, 248. 
 
 verdict, evidence of, though between other parties, 327. 
 
 PUNISHMENT, 
 
 suffering of, restores competency, when, 33. 
 
 PURGATION, 
 
 ancient doctrine of, 31. 
 
 its effect in restoring competency, 32. 
 
 PUTTING OFF, 
 
 of trial, for absence for witness, 16. 
 
 Q 
 
 QUAKERS, . 
 
 history of statutes relating to, 23. 
 may afhrm in civil cases, 25. 
 
 not in criminal cases, 25. 
 
 what criminal cases within the rule, 26. 
 
 in criminal cases, in their own defence, 26.
 
 670 INDEX TO VOL. I. 
 
 QUALIFICATON, 
 
 of plaintiff, when admitted by defendant, 228. 
 need not be disproved by plaintifl'in action on game laws, 198. 
 or in proceedings on conviction beforo magistrate, 198. 
 
 aUARE IMPEDIT, 
 
 hearsay not evidence of presentation, 252, n. 
 
 QUARTER SESSIONS, 
 
 judgment of, see Judgment. 
 
 aUI TAM ACTION. See tit. Penaltiea. 
 QUIT RENT, 
 
 release of, not presumed after twenty years' non-payment, 160. 
 
 RAPE, 
 
 on indictment for, the woman not compellable to answer as to hor 
 criminal connection with other men, 176. 
 such evidence not admissible, 176. 
 her general bad character for want of chastity may be shown, 176. 
 
 or her previous connection with the prisoner, 176. 
 the account given by her, immediately after the injury, when and how 
 far admissible, 233. 
 
 not evidence as to the truth of the account, 233. 
 nor in confirmation of her evidence, 233- 
 
 RATE, 
 
 btok for copies of, how kept, 413. 
 
 in any matter relative to, persons rated or filling offices are competent, 
 
 128. 
 payment of, when evidence of occupation, 256. 
 
 RATED INHABITANTS, 
 
 competent, on question whether lands are vested in overseers, 128. 
 
 by St. 54 G. 3. c. 170, in any matter concerning rates, 
 boundaries, settlements, &c., 128. 
 declarations by, evidence against their parish, when, 129. 
 whether compellable to give evidence against their parish, on question 
 of settlement, 72, 129. 
 
 READING 
 
 REASON, 
 RECEIPT 
 
 of will to testator, in presence of the witnesses, not necessary, when, 
 498. 
 
 defect of, disqualifies witness, 18. 
 
 » 
 
 not conclusive on party signing, 108. 
 
 may show that the money has not been received, 108. 
 
 or that he gave the receipt under misrepresentation, IDS-
 
 INDEX TO VOL. L 
 
 RECEIFT— continued. 
 
 evidence of payment, 526. 
 
 for rent, presumptive evidence of former rents being paid, 159. 
 
 '* in full of all demands," bar to action of assumpsit for goods sold 
 
 159, n. 
 admission of receipt of premium in a policy of insurance, conclusive 
 
 evidence of payment between assured and underwriter, 159, n. 
 parol eviderjce admissible, though receipt given, 220. 
 of principal, when evidence against surety, 258. 
 old receipts of rents, when evidence, 253, 254. 
 
 entries by deceased person, of receipt of rent, not evidence for party 
 claiming under deceased, to show that lands belonged to his an- 
 cestor, 253. 
 entry of, by deceased collector, proof of authenticity, 259. 
 death of party, when to be shown, 259, 261. 
 situation of party, when to be shown, 259. 
 entry of, by steward, 255. 
 
 by bailiff, 255. 
 of payment in lieu of tithes, proper custody of, 481 48 2. 
 endorsed on deed, not conclusive, 549. 
 of goods by carrier, stamp, 5-5. 
 evidence of consideration on which money paid, if stated in receipt, 
 
 526. 
 unstamped, may be used as a memorandum, 513. 
 
 RECEIVER, 
 
 entry by, of receipt of rents, 253, 254. 
 proof of entry, 259. 
 
 RECITAL 
 
 of deed in another deed, when evidence, 457. 
 in family deeds, evidence of/pedigrec, 239. 
 in deed when secondary evidence, 457. 
 
 RECOGNIZANCE 
 
 to appear and give evidence, 8. 
 
 RECORD, 
 
 what, 316, 383. 
 
 when complete, 386. 
 
 effect of, as evidence, 316. 
 
 conclusive of what, 317. 
 
 not to be contradicted, 316. 
 
 evidence as to entry of verdict by mistake, 316. 
 
 not conclusive as to facts not traversable, 317, 
 
 nor as to time of offence, 317. 
 keeper of records may speak as to their condition, 317. 
 inspection of record, 425. 
 
 in case of felony, 425- 
 
 in case of misdemeanor, 426. 
 
 671
 
 672 INDEX TO VOL. I. 
 
 RECORD— con/jnuc./ 
 
 in issue, how proved, 384. 
 copy of, under seal, 384, 385. 
 
 not under seal, 386. 
 enrolment of, 387, 388. 
 • copy of, by chirography, 387. 
 
 by officer authorized , 387. 
 by officer unauthorized, 388. 
 nul tiel record, proof, 384, 385. 
 proof of record by exemplification, 385. 
 by examined copy, 386. 
 o iice copy of record, 387. 
 in case of ancient record lost, 386, 387. 
 copy of judgment signed by clerk of treasury, not evi 
 dence, 389. 
 admissions on record, in the action, need not be proved, 170. 
 variance in proof of record, 212. See tit. Variance, 
 of nisi prius, 389. 
 RECOVERY, 
 
 deed to make tenant to the writ of entry, when evidence of, 392. 
 of lands in ancient demesne, when proved by copy, 386. 
 in former suit, evidence under non-assumpsit, 335. 
 
 RECTOR, 
 
 death of, when to be proved, to make his books evidence, 261. 
 
 (See Vicar, Receipt, Tithes.) 
 books of deceased, when evidence for his successor, 260. 
 
 of deceased lessee of the rectory, 261. (See tit. Parson.) 
 proper custody of, 481. 
 RE-EXAMINATION. See Examination. 
 
 of witness, as to former statements with party to the suit, 305. 
 
 with a third person, 305. 
 
 REGISTER 
 
 of parish, 408, 410. 
 
 regulations for keeping, 409. 
 
 entry in, proof of marria ge, 409, 410. 
 inspection of entry in, as to modus, 261. 
 of Fleet prison, 410. 
 of foreign chapel, of marriages, 411. 
 of colonies, 411. 
 of ship, 
 
 effect of, 411. 
 
 not evidence of title, 411. 
 
 REGISTRY 
 
 of deed, proved by attested copy of memorial, 218, 288, 464. 
 
 RELEASE. See tit. Witness. 
 
 of interest, restores competency of witness, 133.
 
 INDEX TO VOL. I. 673 
 
 R FXEASE—coniinued. 
 
 general release, 134. 
 
 by surety, 134. 
 
 to partner, 134 
 
 of legacy, 133. 
 
 of quit-rents, not presumed when, 160. 
 
 by drawer to acceptor of bill, 134. 
 
 guardian, in suit against a minor, insufficient, 134. 
 
 co-obligee, 134. 
 to co-obligor, 134. 
 from residuary legatee, 136. 
 on trial for forgery, 135. 
 unnecessary, 1. where release refused, 136. 
 
 2. where interest acquired fraudulently, 137. 
 
 3. where witness indifferent, 140. 
 
 4. in case servants, carriers, or agents, proving pay- 
 ment of money on delivery of goods, &c., 129, 130. 
 
 RELATIONSHIP. See Kindred. 
 
 RELEVANCY 
 
 of proof, 272. 
 
 RELIGIOUS PRINCIPLE, 
 
 defect of, when a ground of incompetency, 23. 
 examination as to religious opinions, 24. 
 
 REMAINDER, 
 
 one taking an estate in, not competent to speak to the tillo, 65. 
 may use a verdict gained by another, when, 325. 
 
 REMAINDER-MAN 
 
 an incompetent witness respecting title to land, 65. 
 
 REMOVAL, 
 
 order of, see Judgment of Quarter Sessions, or Q. S. 
 
 RENT-ROLL, 
 
 ancient, when evidence, 252. 
 
 REPLEVIN, 
 
 in action of, proof of execution of lease by power of attorney, 104. 
 
 replevin bond, proof of, when produced under notice, 451. 
 
 produced by sheriff, takan to be duly executed as against 
 him, 451. 
 
 defendant avows for common under a lease, plaintiff traverses the 
 lease, inodo et forma; variance as to date of demise, when 
 immaterial, 201. 
 
 only part of the cattle proved to be levant and couchant, not suf- 
 ficient, 211. 
 
 judgment in, a proof of tenancy, 332. 
 
 REPUTATION. Seo tit. Hearsay. 
 
 common, evidence of public rights, 248. 
 
 Vol. I. 85
 
 674 INDEX 'IX) VOL. I. 
 
 REPUTATION —continued. 
 
 as to boundaries, 249. 
 
 cusloii)!!, 249. 
 post litem motam, not evidence, 241. 
 of parlicular facts, not evidence, 2.51. 
 not evidence of private rights, 251. 
 not of prescriptive rights, 251. 
 not to prove presentation, 252, n. 
 RESCUE, 
 
 slieriff 's return of, 391. 
 RES GESTA, 
 
 hearsay, part of, when evidence, 231. 
 
 in cas9 of trader absenting himself from Iiome, to show motive 
 of his absence, 231. 
 letters of payee to maker of note, contemporaneous with making of 
 
 note, to prove consideration, 232. 
 account given by persons, as to their state, on enquiries of medical 
 
 men, 233. 
 complaint of woman in case of rape, when received, 233. 
 in crirn- con ., declarations of wife at the time of elopement, as to 
 caus3 of her conduct, 234. 
 but not collateral declarations respecting a matter which hap- 
 pened at another time, 233. 
 acts done, or things said, by a third person, when admissible as part 
 of res gcsta, 234. 
 
 RES INTER ALIOS ACTA. 331, 361. 
 RESIDUARY LEGATEE, 
 
 when an incompetent witness, 63. 
 
 RESIGNATION, 
 
 evidence of, by member of corporation, 136. 
 
 RESOLUTION 
 
 of either house of parliament, not evidence of u fact therein stated, 
 
 406. 
 read and adopted at a public meeting, may be proved by parol evi- 
 dence, or by copy received from defendant, 221, 222, 
 
 RETAINER 
 
 book of counsel, 142. 
 
 RETURN 
 
 of sherifTon writ, 
 
 when evidence of the facts, 391. 
 
 not evidence of payment to judgment creditor, 391. 
 
 REVERSAL 
 
 of judgment restores competency, 31. 
 
 REVERSIONER, 
 
 in action by, tenant in possession competent, 49. 
 verdict for or against lessee, evidence for or against, 325. 
 
 REVOCATION 
 
 of probate of will, how proved, 398.
 
 REWARD, 
 
 RIOT, 
 
 INDEX TO VOL. T. (,75 
 
 persons entitled to, on conviction, not incompetent, 129. 
 
 cases in wliich rewards are given, 120, n. 
 
 case ill which tlie rewards have been taken away, 119, n. 
 
 on prosecution for, how far acls done by the niob are evidence against 
 
 any of the rioters, 98, 234. 
 wliat tiie defendant said before lie went to place of riot, not evidence 
 
 for him, 1S2. 
 proof of other acts of prisoner, how far admissible, 181. 
 
 ROAD. See tit. Boundary. 
 
 on indictment for not repairing, verdict of guilty is conclusive against 
 the parish,. 3.31. 
 its eflect, in case of a parish consisting of several dis- 
 tricts, 331. 
 defendants may show, under plea of not guilty, thai 
 the parish has been exempted from repairing, by 
 act of parliament, 320. 
 inhabitants of parish not competent, 127. 
 on prosecution for oflences again.st the highway act, inhabitants are 
 
 competent, 127. 
 on a question whether the occupier of particular land is liable to re- 
 pair, an award between a former occupier and the township is not 
 evidence, 246. 
 
 ROBBERY, 
 
 on indictment for, prisoner may be convicted of simple larceny, 203. 
 
 See tit. Indictment. 
 variance, 207. 
 may be proved by party robbed, in action against the hundred, 70. 
 
 so also the amount of property robbed, 70. 
 dying declarations not evidence in prosecution, 237. 
 
 ROLLS. See Ancient Writings. 
 
 of manor court, evidence between the landlord and his tenants, 417. 
 
 of customary descent, 417, 418. 
 
 of customary tenure, 418. 
 
 of right of fishery, 253. 
 inspection of, 429. 
 proof of, 424. 
 
 RULE OF COURT, 
 
 signed by proper officer, good evidence, 383. 
 
 SALE 
 
 of goods. — See Agreement. 
 
 agreement for, exempt from stamp, when, 527.
 
 676 INDEX TO VOL. I. 
 
 SALE — continued. 
 
 sale of growing crops, when exempt from stamp, 629. 
 agreement for, when varied by parol, 560. 
 
 as to time of delivery, 560. 
 / as to mode of delivery, 560. 
 
 parol evidence of agency, 561. 
 
 to prove variation in the quantity of goods to be de- 
 livered, 560. 
 by aactioD, not affected by verbal declarations of auctioneer, 560. 
 See Auctioji, Auctioneer. 
 
 SANITY, 
 
 SEAL, 
 
 SEALING 
 
 opinion of medical men as to, 290. 
 
 copies of records under, 384. 
 
 of the King of public courts of justice, need not to be proved, 385. 
 
 of ecclesiastical courts, on probate, need not to be proved, 397. 
 
 of private or foreign courts, how proved, 385, 399. 
 
 of colonial cour's, 399. 
 
 of corporations, how proved, 386. 
 
 essential to the validity of deed, 467. 
 
 may be done by several persons, with one seal, when, 467, 471. 
 
 SEAMEN, 
 
 in action for wages, are not obliged to produce the contract, 443. 
 defendant compellable to produce ship's articles, 443. 
 memorandum for wages of, when exempt from stamp duty, 530. 
 
 SECONDARY EVIDENCE 
 
 not to be admitted, when primary is to be had, 452. 
 meaning and extent of this rule, 218, 219, 452. 
 degree of, 458. 
 of writings, when admitted, 451. 
 
 where instrument in possession of adverse party, 440, 443. 
 
 after notice to produce, 452. 
 
 what admissible, 457, 458, 459. 
 
 of deed, or agreement, admitted without proof of execution, 
 
 when the original is not produced by the other party, after 
 
 notice, 452. 
 admitted without a stamp, 452. 
 party, after refusing to produce, cannot retract, 452. 
 of power of attorney, question as to its admissibility, in Lord 
 
 Melville's case, 452, 459, n.- 
 of contents of letter, 458. 
 of appointment of overseer, 45 J
 
 INDEX TO VOL. I. g77 
 
 SECONDARY EVIDENCE— coniiwueci. 
 
 of endowment of vicarage, 459. 
 copy of enrolment, 461. 
 copy of deed, 457. 
 recital in deed, 457. 
 rnem.)randum book, 458. 
 
 See Loss, proof of. 
 
 SECRECY, 
 
 oath of office as to, how understood, 145. 
 privileged communications, 284. 
 
 SECRETARY OF BANKRUPT, 
 
 copy of writings in his office evidence, 415. 
 
 SECRETARY OF STATE, 
 
 order of, for bringing up a prisoner of war as witness, 6. 
 register in his office for recording licences, 219. 
 
 SECRETARY AT WAR, 
 
 certificate of, 382. 
 
 SEISIN 
 
 of devisor, proved by declaration of deceased occupier, 258. 
 
 SELLER 
 
 of property, when competent to prove title of buyer, 48. 
 
 SENTENCE OF COURTS. See tit. Judgment. 
 
 SERVANT 
 
 competent, in action by his master, to prove delivery of goods, &c., 
 129. 
 
 incompetent to prove acts done by him out of the course of his duty, 
 when, 130. 
 
 incompetent to disprove his own negligence in action against his mas- 
 ter, 56, 131. 
 
 incompetent, in action, to recover money illegally spent by him, 131. 
 
 SERVICE 
 
 o^sxxh'pcBndL ad testificandum, A. 
 
 in criminal cases, 8. 
 
 in any part of the United Kingdom, 9. 
 
 SESSIONS, 
 
 order of, confirming order of removal, conclusive as to all parishes, 330. 
 discharging, conclusive only that the settlement was not with 
 the respondents, 329. 
 
 SETTLEMENT 
 
 by purchase of estate, 
 
 parol evidence not admitted to show that the purchaser agreed to 
 
 pay more than 30/. though the deed expresses less, 550. 
 or that less was paid than is expressed, 551.
 
 (^78 INDEX TO VOL. I. 
 
 SETTLEMENT— co/!/;nuc(i. 
 
 examination of pauper concerning, not evidence after his death, STff 
 
 SHERIFF. See tit. Undersheriff. 
 
 action against, bailiff not competent to prove endeavor to .irrest, 59. 
 variance in omitting the taking of wife in execution, 201. 
 endorsement of writ evidence against, 391, n. 
 .return of, upon vvrit, evidence of vvliat, 391. 
 replevin bond produced by, admitted without proof of execution, 
 
 451. 
 inquisition by, 375. 
 in action against for taking goods without paying arrears of rent, terms 
 of the iiolding, if set out, must be proved as averred, 206. 
 landlord not competent for defendant, 56. 
 admission by undcrsherifT, 106. 
 
 SHIP. See tit. Captain, Policy of Insurance. 
 
 articles of, to be produced by defendant, in action for seamen's wages, 
 
 337. 
 owner of, his declarations are evidence in action for freight, 92. 
 property in, proof of, 412. 
 possession, acting as owner, 412. 
 registration, effect of, 411. 
 register of, when evidence of want of title, 411. 
 
 not evidence of property, unless recognised, though necessary to 
 
 complete a transfer of the property, 411. 
 conclusive, that persons not named therein are not owners, 411. 
 capture of, proved by book at Lloyd's, 414, 
 
 by sentence af admiralty and foriegn courts, 346, 347. 
 opinion of ship-builders as to sea-worthiness, 290. 
 
 SHIP-BUILDER, 
 
 evidence of, as to sea-wortliiue.ss of ship, 290. 
 
 SHOP-BOOK, 
 
 entry in, by deceased shopman, evidence of delivery of goods, 264. 
 
 by the master, not evidence, 266. 
 
 may be used as a memorandum, 264. 
 
 by clerk living abroad, not evidence, 264. 
 
 by servant, stating terms of agreement, not evidence, 265. 
 open to customer, — effect of, as a bill delivered, 265. 
 admissibility of, by st. 7 Jac. c. 12, 266. 
 
 SHOPMAN, 
 
 entry by, in tradesman's book, 264. See tit. Shop-book.
 
 INDEX TO VOL. I. 579 
 
 SIGNING 
 
 of deed, 466. 
 
 not essential at common law, 466. 
 attestation of, under powei-, 466. 
 of will, 497. 
 
 in any part of will, 497. 
 
 of part, intending to sign tiio wliolo, 497. 
 
 by mark, 497. 
 
 by stamped name, 497. 
 
 by seal, insufficient, 497. 
 
 when testator is blind, 498. 
 
 SLANDER. See tit. Defamation. 
 action for, 
 
 proof of the slanderous words, 201. 
 
 SOLDIER, 
 
 e.xamination of, under mutiny act, when evidence, 377. 
 
 attested copy of, given to commanding officer, evidence, 
 377. 
 
 SOLICITOR. See tit. ^//orwey. Counsel. 
 
 not allowed to give evidence of professional communications of liis 
 
 client, 140, 141. 
 cannot produce a deed, confidentially deposited with him, against the 
 depositor or any claiming under liim, 141. 
 same rule in criminal cases, 142. 
 rule confined exclusively to professional advisers, 144. 
 
 person not being, though considered as such, not within the rule, 
 145. 
 may give evidence as to the execution of a deed, 146. 
 or erasure of writing, 146. 
 or swearing on answer in Chancery, 
 146. 
 proposition made by the si'licilor of one party to the other party can- 
 not be proved by the solicitor, 145. 
 may be pravcd by any other person present, 145. 
 
 SOLVIT AT) DTE.M, 
 
 payment before the day n)ay be proved, 200. 
 presumption of payment 197. 
 
 SON ASSAULT DEMESNE, 
 
 proof of time of the assault, 215. 
 
 SPECIAL CASE, 
 
 is evidence of facls contained, 106. 
 
 SPECIFIC PERFORMANCE, 
 
 on bill for, defendant may show that the agreement has been dis- 
 , charged, 568.
 
 680 INDEX TO VOL. I. 
 
 SPECIFIC PERFORMANCE— conh««e(i. 
 
 or that it is difTerent from that intended, 569. 
 or that they afterwards agreed to a variation, 569. 
 plaintitT may show tlie omission of a term by fraud, 671. 
 whether he may show it by mistake or surprise, 572. 
 cannot vary agreement by parol evidence, so as to have 
 
 it executed in its varied form, 573. 
 part performance of agreement for land, what, 575. 
 
 SPECIMEN BOOKS, 
 
 transcribed by excise-officer from specimen papers, when evidence, 415. 
 
 SPEED, 
 
 Chronicle of, when evidence, 423. 
 
 STAMP, 
 
 contents of unstamped paper cannot be shown, if stamp necessary, 
 
 504. 
 unstamped receipt m<iy he shown to a witness to refresh his memory, 
 
 505, 518. 
 after payment of money into court, want of stamp no objection, 524. 
 or after admission, by plea of authenticity of the writing, 505. 
 other proof of the transaction, besides the writing when admissible, 
 
 504. 
 fact of payment may be shown, if receipt unstamped, 504. 
 unstamped receipt, used as a memorandum, or as confirmatory, 518. 
 agreement admitted on the record, need not be stamped, 505. 
 in action on note unstamped, when plaintiff" may recover on other 
 
 counts, 505. 
 foreign instrument to be stamped according to the law of the country, 
 
 505. 
 
 bill incipient here, completed out of the kingdom, 506. 
 of proper value and denomination, 506. 
 
 receipt stamp not sufficient for promissory note, 506. 
 
 articles of agreement under seal to bo stamped as a deed, 506. 
 
 agreement for house, and also for goods in it, to be stamped as a 
 
 lease, 507, 
 value being greater than the true stamp is not material, if the de- 
 nomination right, 507. 
 
 where the denomination is difTerent, but of equal 
 or greater value, commissioners may re-stamp, 
 when, 507.
 
 INDEX TO VOL. I. 681 
 
 STAMP — continued. 
 
 several stamps on one instrument, when necessary, 503 — 511. 
 composition deed, 508. 
 adini.ssion of burgesses, 509 
 agreements for letting, 511. 
 parts of a co eyance, 509. 
 new stamp, on alteration of instrument, when necessary, 511. 
 on bill of exchange or promissory note, 512, 516. 
 on policy of insurance, 513, 517. 
 alteration as to time of sailing, 514. 
 as to property insured, 514. 
 as to sea-worthiness, 514. 
 alteration without consent of all parties, 515. 
 by consent, to correct mistake, 515. 
 unstamped instrument, evidence for collateral purposes, when, 518. 
 in action for penalty for illegal insurance, 518. 
 
 for bribery at election, 518 
 unstainpcd paper, as a memorandum, 518. 
 as secondary evidence, 519. 
 as confirmatory evidence, 518. 
 unstamped agreement may be inspected to ascertain 
 the time with reference to a subsequent agreement, 
 519. 
 unstamped agreement may be inspected to see the 
 
 nature of the hand -writing, 519. 
 unstamped instrument may be recovered in trover, 519. 
 unstamped instrument, evidence in prosecution for 
 
 forgery, 520. 
 draft, unstamped, when admissible on indictment for 
 secreting a letter containing, &c. under' stat. 7 G. 
 3, c. 50, s, 1, 521. 
 unstamped instrument may be inspected to see 
 whether it applies to goods which are the subject of 
 the action, 519. 
 unstamped instrument not admissible as receipt in 
 
 indictment for embezzlement, 552. 
 on receipt of goods by carrier, 525. 
 instrument in possession of adverse party, presumed 
 to be stamped, 522. 
 stamp not required, on receipt for price of horse, containing warranty 
 
 of soundness, 528. 
 exception in stamp act, respecting instruments for sale of goods be- 
 
 Vol. I. 86
 
 682 INDEX TO VOI-. I. 
 
 STAMP— continued. 
 
 tween merchants within certain distances, confied to cases where 
 goods the primary object of the contract, 528. 
 
 policy of insurance unstamped, not evidence on indictment for 
 
 burning, &c. with intent, &c. 521. 
 party when compellable to produce writings to be stamped, 
 
 previous to trial, 437- 
 lost instrument presumed to be stamped, when, 523. 
 want of stamp, when to be repaired, and how, 523. 
 ' want of stamp not be objected to, after payment of money 
 
 into court, 524. 
 or after plea admitting letters of administration, 524. 
 agreements, what to be stamped, 524. 
 
 minute of agreement by auctioneer, 525. 
 written contract of marriage need not, 525. 
 fresh item, addsd, 525. 
 receipt, properly stamped as such, admissible, 
 
 though it contain an agreement, 525. 
 cognovit need not be stamped, 526. 
 agreements exempted from stamp, what, 526. 
 
 1. memorandum of assurance, 526. 
 
 2. memorandum for granting lease, 526. 
 
 agreement, when a present demise, 526. 
 
 3. memorandum for hire of laborer, &c. 527. 
 
 agreement for assignment of apprentice, 
 not exempted, 527- 
 
 4. memorandum for or relating to sale of 
 
 goods, 527. 
 agreement to take a share of goods, &c. 
 
 527. 
 agreement to indemnify on re-sale, &o. 
 
 527. 
 guarantee for payment of goods, 527. 
 agreement for money on pledge, of goods, 
 
 528. 
 agreement for sale of goods, to be made, 
 
 528.
 
 INDEX TO VOL. I. 
 
 STAMP— continued. 
 
 agreement for sale of crops, 529. 
 metnorandnm between master and mariners 
 
 of ship, 530. 
 letters containing agreement respecting mer- 
 chandize between merchants, 530. 
 
 STATUTE 7 Geo. 4. c. 64, 
 
 reversal of judgment on indictment, 217. 
 costs in misdemeanors, 12. 
 
 STATUTE, 
 
 public act, 317 
 
 preamble of, 318. 
 
 rule as to pleading, 318. 
 private act, 
 
 proof of, 383. 
 penal act, action upon, 319. 
 
 evidence for defendant, under nil debet, 319. 
 
 proviso containing exemption may be shown, 320. 
 
 STATUTE OF FRAUDS. 
 
 contracts within, parol evidence, when admissible, 559. 
 discharge of, bv parol, 563. 
 parol evidence of agency, 561. 
 of time of delivery of goods, 561. 
 proof of collateral facts, 562. 
 
 STEALING. b'ee tit. Larceny. 
 
 STEWARD, 
 
 entiy by deceased, as to receipt of money, 255. 
 
 683 
 
 STOCK, 
 
 of manor, competent as to custom, 130, 261. 
 
 transfer of, proved by bank books, 414. 
 
 SUBPOENA. . See tit. Witness, 
 
 ad iesiificandum, 2. 
 duces tecum, 3, 436. 
 
 production of writings under, 3. 
 
 what writings the party is compellable to produce, 436. 
 writings secreted in fraud of, 442. 
 "^ service of, 4. 
 
 how many may be put in one writ, 4. 
 ticket, 4. 
 on the person, 4. 
 how long before the trial, 1. 
 on married woman, 4. 
 in case of remanel, 4 
 in criminal cases, 8.
 
 6ij4 INDRX TO VOL. I. 
 
 SVBPCES A— continued. 
 
 in different parts of the kingdom, 9. 
 process, in case witness refuse to attend, 8. 
 
 SUBSCRIBING WITNESS 
 
 to deed, 464. 
 
 to will, 499. 
 
 proof of writings by, 464. 
 
 what excuses the absence of such witness, 474. 
 
 cannot be objected to, as interested, by one who asked him to attest, 
 
 knowing his situation, 466. 
 liand-wriling of, when proved, 473, 475 
 may impeach execution, 41, 308. 
 
 SUBSTANCE 
 
 of issue to be proved, 200 
 examples, 
 
 in action of waste, sufficient to prove that defendant cut a less 
 
 number of trees, 201. 
 in action on simple contract, plaintiff may prove less than the 
 
 writ demands, 201. 
 in action against the sheriff, plaintiff declares that he had J. 
 
 S. and his wife in execution, proof that he had J. S. alone 
 
 is sufficient, 201. 
 in action for slander, rule as to the proof of the words, 201. 
 averment that the cattle (damage-feasant) were levant and 
 
 couchant, is not proved by showing that part of them were 
 
 BO, 201. 
 of issue in plea of tender, 202. 
 of solvii post diem, 200. 
 plaintiff may recover, though he prove a more ample right 
 
 than he claims, 211. 
 proof th;;t A. was churchwarden, not sufficient on issue whe- 
 ther A. and B. were churchwardens, 202. 
 averment, that plaintiff was constable of a particular parish, is 
 
 not supported by proof, that he was sworn in, to serve for 
 
 a liberty of which the parish was only a part, 202. 
 averments, when immaterial, 205. 
 ^ averments, merely matter of inducement, need not be strictly 
 
 proved, 206. 
 contracts to be truly stated, and proved as stated, 207. 
 (other examples in the several actions in Vol. 11.) 
 examples in criminal cases, 207. 
 
 SURETIES, 
 
 entry in account by principal, when evidence against, 268. 
 SURGEON, 
 
 memorandum of, evidence of time of birth, 241.
 
 INDEX TO VOL. I. ggc 
 
 SURPRISE, 
 
 whether a ground for allowing parol evidence to vary a written agree- 
 ment, 572, 573. 
 
 SURRENDER OF COPYHOLD, 
 
 mistake in, may be rectified by parol evidence, 540. 
 terms of, explained by possession, 543. 
 
 SURROGATE, 
 
 proof of acting, evidence of appointment, 226, 
 
 SURVEY- See tit. Terrier. 
 public, 404. 
 
 ecclesiastical, admissible, though commission not found, 405. 
 of benefices by Pope Nicholas, 404. 
 
 history of, 444. 
 of religious houses previous to their dissolution, 405. 
 evidence of, what, 404. 
 valor beneficiorum in reign of H. 8, 404. 
 
 takes no notice of a modus, 405. 
 in time of the commonwealth, 405. 
 
 its great authority in questions of tithes, 405. 
 of the king's ports, 403. 
 
 ancient surveys evidence, without proof of commission, when, 405. 
 of manor or estate, when evidence, 254. 
 
 SURVEYOR 
 
 of parish, competent, in cases relating to the execution of the highway 
 act, 127. 
 
 SWEARING. See Oath. 
 form of, 22. 
 in case of Jews, 22. 
 
 Quakers, 23. 
 Gentoos, 23. 
 Mahometans, 23. 
 examination previous to, 23. 
 
 T 
 
 TAXATION 
 
 of Pope rs'icholas evidojice, when, 404. 
 
 TENANCY, 
 
 verdict in replevin, evidence o), 332. 
 
 TENANT. See tit. Ejectment, Vol. II. 
 
 not competent to prove the right of taking ofF-going crops, 67. 
 not competent to support his landlord's title in ejectment, 56. 
 sub-tenant, when competent, 49. 
 
 competent to prove damage to reversioner, 49. 
 
 TENDER 
 
 of expences to witness, 6.
 
 G86 
 
 TENDER- 
 
 TENURE, 
 
 TERRIER 
 
 INDEX TO VOL. I. 
 
 -continued. 
 
 in case of service of subpoena under stat. 45 G. 3. c. 92, 9 . 
 not necessary in criminal cases, 12. 
 
 necessary to witness brought before coniniissioners of bankrupt, 14. 
 plea of, and demand of the sum pleaded in reply, — demand of that 
 specific sum must be proved, 202. 
 
 on question of, in a manor — evidence of usage in other manors within 
 the same district, admissible, 173. 
 
 of manor, evidence of boundary or tenure, 419. 
 ecclesiastical, what, 419. 
 
 evidence of church-possessions, 419. 
 in questions of tithes, 419. 
 for parson, when, 420. 
 against him, when, 420. 
 from what repository, 419, 420. 
 by whom to be signed, 420. 
 admissible, though not signed by rector, 420. 
 signed by inhabitants of a parish, evidence of a farm-modus, 
 though the persons signing are not shown to have been occu- 
 piers, 420. 
 not evidence unless possession satisfactorily explained, 420. 
 
 TESTATOR. See tit. Will. 
 
 must sign in presence of witnesses, 493. 
 witnesses when present, 499 . 
 
 TICKET, 
 
 TIME, 
 
 TITHES, 
 
 service of, for subpoena, 3 
 
 variance in, proof of, 214, 
 of making entry, 266. 
 
 receipt of, what admitted by, 227. 
 
 entry by deceased rector, evidence of, receipt of, when, 260. 
 
 entry in steward's book, 261. 
 
 answer of occupier of land, in a tithe cause, evidence against a suc- 
 ceeding occupier, 361. 
 
 verdict between vicar and occupier, evidence between vicar and suc- 
 ceeding occupier, 325. 
 
 modus on one particular farm not evidence of modus on another, 175. 
 unless some connection shown, 175. 
 
 real composition for tithes, not to be presumed from usage, 163.
 
 INDEX TO VOL. I. G87 
 
 TITHES— cotUinued. 
 
 in suit for, in the ecclesiastical court, plea, that plaintifi" had not read 
 
 the thirty-nine articles, to be proved by defendant, 195. 
 book of collector of, proper custody of, 481. 
 book of rector, proper custody of, 481. 
 occupier not competent in question of modus, 57 
 declarations of deceased occupier as to modus, 250. 
 See tit. Modus, Prescription, Survey, Teirier, Receipt- 
 receipt of, evidence of parson's title, as against him, 227. 
 
 TOLLS, 
 
 collector of, proof of, 227. 
 
 hearsay, evidence of right to, 248. 
 
 verdict, evidence of, though between other parties, 327. 
 
 TRADESMAN, 
 
 entry in his books, by deceased shopman, evidence of delivery of 
 
 goods, 2(54. 
 observation on this sort of evidence, 263 
 entry by tradesman himself not evidence, 266. 
 entry, used as memorandum by shopman, 264. 
 entry by clerk, who is living, though abroad, not evidence, 264. 
 entry by servant, stating terms of agreement, not evidence, 265. 
 book, open to customer, — effect of as a bill delivered, 265- 
 clause in stat. 7 J. c. 12, as to admissibility of shop-books, 266. 
 
 TRANSFER 
 
 of stock, bank-book evidence of, 414. 
 
 TRANSPORTATION, 
 
 prisoner sentenced to, competent after suffering sentence, 34. 
 certificate of order of transportation, 381. 
 
 TREATIES 
 
 of foreign states, how proved, 402. 
 
 TREASON, 
 
 witness disqualified on conviction of, 28. 
 confession, evidence in case of, 117. 
 
 fvjnfession of overt act, if offered as full proof of such overt act, must 
 be proved by two witnesses, 117. 
 
 may be proved by a single witness, if used only in confirmation, 
 
 118. 
 or if evidence only of some collateral fact, 118. 
 or if the overt act bo an attempt against the life or person of the 
 king, 118. 
 no overt act of distinct treason to be proved, unless laid in the indict- 
 ment, 178. 
 or unless it conduce to the proof of some overt act laid, 178.
 
 688 INDEX TO VOL. I. 
 
 TREASON— conii nned. 
 
 overt act of treason, committed in a foreign country, admissible in 
 corroboration, 178. 
 so also prisoner's declarations, &c., 178. 
 two witnesses, when necessary, 152, 153. 
 not as to collateral facts, 154. 
 
 nor in treason, for an attempt on the king's person, 154. 
 declarations or acts by co-con«pirators, how far admissible, 94, 95. 
 evidence of prisoner's character, on trial for high treason, 117. 
 
 TRESPASS. See Co-tiespaitser. 
 
 judgment in, a bar in trover, 333. 
 
 finding, on title, in trespass, when an estoppel, 324. 
 
 justification by process, proof of fieri facias, 390. 
 
 when judgment to be proved, 391. 
 competency of co-defendant in, 73, 75. 
 co-trespasser, not sued, competent for plaintiff, 41. 
 
 TRIAL, 
 
 TROVER, 
 
 TRUST, 
 TRUSTEE, 
 
 putting off, for absence of witness, 16. 
 motion for, 16. 
 notice of, 17. 
 affidavit, 17. 
 
 when it cannot be put off, 16. 
 after sham plea, 16. 
 other causes, 16. 
 consent of parties, 17. 
 application on part of plaintiff, 16. 
 proof of a trial having taken place, 231. 
 
 judgment in trespass, a bar in trover, 333. 
 
 unstamped instrument may be recovered in, 519. 
 
 effect of judgment of acquittal in the exchequer, as to legality of seiz- 
 ure, 355. 
 
 competency of co-defendant in, 75. 
 
 action by carrier, for box delivered by mistake, the wife of the owner 
 of the box seems competent, 88. 
 
 acti:>n of, for bond, notice to produce bond unnecessary, 441. 
 
 witness competent for defendant to prove property in himself, 48. 
 
 when raised in equity by parol evidence, 577. 
 
 competency of, 52. 
 
 incompetent, if party to suit, 69. 
 
 governors of hospital, 70. 
 
 admission by one of several, 91, n. 
 
 of turnpike road, a competent witness, 127.
 
 INDEX TO VOL. I. (^39 
 
 TRUSTEE— continued. 
 
 TURK 
 
 writings in possession of party ns a trustee — rule for producing, 
 436. 
 
 may be a witness, 23. 
 how sworn, 23. 
 
 UNDER-SHERIFF. See tit. S/ienJ, 
 
 proof of appointment of, from acting, 226. 
 
 declarations by, when evidence against the sheriff, 106. 
 UNDERSTANDING, 
 
 defect of, objection to witness, when, 18. 
 UNDER-TENANT 
 
 may prove good management of land, 49. 
 UNDERWRITER 
 
 competent for another underwriter, on the same policy, 48. 
 
 after payment of Loss, conditionally, when incompetent, 64, 138. 
 UNLAWFUL ASSEMBLY, 
 
 conspiracy in collecting — what facts material to be proved, what im- 
 material, ISO. 
 
 USAGE. See Possession, Adverse Possession. 
 presumption of grant from, 161. 
 when evidence of right to easements, 163. 
 when admissible to explain ancient charters, 540. 
 
 to explain act of parliament, 541. 
 
 to explain mercantile contracts, 556. 
 
 to explain private deeds, 542, 543. 
 
 to explain policy of insurance, 557. 
 not allowed to contradict a policy, 557. 
 
 USE AND OCCUPATION, 
 
 written agreement as to holding unstamped, cannot be supplied by 
 
 parol evidence, 504. 
 parol evidence to supply terms of agreement, 559. 
 of terms of tenancy, 221. 
 USURY, 
 
 in action for penalties, the borrower competent, 51. 
 
 evidence of other usurious contracts not admissible, 273. 
 may be given in evidence under non assumpsit, 319. 
 not in debt on bond, unless pleaded 319. 
 
 UTTERING, 
 
 indictment for uttering forged notes or bad money — proof of other nt- 
 
 terings, evidence of prisoner's knowledge, 179. 
 remark on such evidence, 179. 
 
 Vol. 1. 87
 
 690 
 
 INDEX TO vol.. I. 
 
 V. 
 
 VALOR 
 
 beneficionim, 404. 
 
 VARIANCE, 
 
 in action n";i>inst sherifT, ornissiion of wife in stating writ of execution 
 
 201. 
 in action for defamation, 201. 
 in proof of contract, 207. 
 
 in action of assumpsit, — in action of tort, vvlien contract necessary to 
 be stated, 208. 
 
 contract in tlie alternative, 208. 
 
 how much of contract to be stated, 209. 
 
 when all the parties to the contract are not sued, 209. 
 
 when all parties to the contract do not sue, 210. 
 
 when all parties in action of tort not joined, 210. 
 in proof of prescription, 210. 
 
 possessory right of common, 211. 
 
 evidence of more ample right, 211. 
 in proof of deed, 211. 
 
 deed stated in substance, 212. 
 in proof of record, 212. 
 
 when record only described, 213. 
 
 when its substance set out, 214. 
 in matters of description, 212. 
 in matters of substance, 213. 
 in direction of bill, 213. 
 in proof of time, 214. 
 in date of acquittal, 214. 
 in date of judgment, 214. 
 ^ in proof of place, 215. 
 
 in place in criminal matters, 217. 
 
 in place of venue, 216. 
 
 in assumpsit, it is no variance, that others besides the defendant are 
 
 parties to the contract, 209. 
 but if others ought to join as parties in the action, the defendant may 
 
 take advantage of it, on non assumpsit, 210. 
 in action of tort, it is not a variance to show that others ought to have 
 joined in suing, 210. 
 
 VENDOR 
 
 VENUE, 
 
 of goods, when competent, 49- 
 
 competent to prove title of vendee, when, 48. 
 
 when the place is only for venue, a variance in the place proved not 
 
 material, 216. 
 on indictment for felony at a certain place, if there is no such place 
 
 in the county, 217. 
 judgment on indictment not arrested for defect of, 217.
 
 INDEX TO VOL. I. 
 
 VERDICT. See tit. Judgment. 
 
 admissible in evidence, when, ^2\. 
 
 1. considered with reference to the parlies, 320. 
 
 with reference to the subject matter, 3.30. 
 conclusive between same parlies, when, 322. 
 effect of, as evidence, 322. 
 to be conclusive must be pleaded, 322. 
 who the same parties, 323. 
 
 evidence against one of several partners, when, 323. 
 who the rjal parties, 324. 
 in ejectment, 324. 
 in trespass, 324. 
 evidence between privies to the first suit, 324. 
 privy in blood, 324. 
 f.rivy in estate, 325. 
 privy in law, 325. 
 
 decree between vicar and impropriator evidence be- 
 tween their successors, 325. 
 verdict between vicar and occupier, 325. 
 judgment for schoolmaster of hospital evidence for suc- 
 cessor, 325. 
 judgment of ouster in quo ivarranto, 325. 
 not evidence against a stranger, 326. 
 not evidence for a stranger, when, 326. 
 evidence as to damages recovered, 326. 
 evidence between third persons, when, 327. 
 
 verdict as to customs, tolls, &c., 327. 
 
 judgment of courts of exclusive jurisdiction, 328. 
 
 judgment of quarter sessions in appeals, 329. 
 
 convictions, 331. 
 
 judgment, evidence by way of inducement, 332. 
 
 special verdict, stating a pedigree, whether evidence 
 
 between third persons, 328. 
 verdict in action for negligence of servant, is evidence 
 in action by the master against the servant, 326. 
 2 considered with reference to the subject-matter, 333. 
 
 verdict in trover, a bar to an action for money had and 
 
 received, 333. 
 in trespass, bar in trover, 333. 
 in debt, b.ir in assumpsit, 333. 
 in trespass, estoppel as to what, 335. 
 in ejectment, proves nothing beyond the day of demise, 
 336. 
 criterion for determining whether the cause of action the same, 
 333. 
 
 691
 
 (392 INDEX TO VOL. I. 
 
 VERDICT— conhnued. 
 
 if any evidence at all given on particular count, the verdict and 
 
 judgment will be a bar, 834. 
 where plaintifTin first action failed from defect of pleading, 334. 
 
 or gave no evidence of the demand, 334. 
 verdict final only as to its proper purpose, 334, 335. 
 in action for nuisance not conclusive as to the right, 334. 
 in ejectment, not conclusive, as to title in another ejectment, 
 
 336. 
 in criminal case, when evidence in civil, 336. 
 evidence that the verdict was entered by mistake, not admissible, 
 
 316. 
 in debt on award, and " no such award'' pleaded, the jury can- 
 not find the award void by matter dehors, 170. 
 proof of verdict, 3S9. 
 
 nisi prius record with postea, evidence of trial, SS9. 
 
 proof of verdict and damages, 389. 
 on issue out of Chancery, decree to be shown, 389. 
 
 VESTRY-BOOK 
 
 of parish, when evidence, 414. 
 
 containing evidence of election, 414. 
 
 entry in, as to right to a pew, 414. See tit. Parish. 
 
 VICAR, 
 
 booksof deceased, when evidence, 260. 
 proper custody of, 260. (3.) 
 
 VICARAGE, 
 
 endowment of, when presumed, 162. 
 
 secondary evidence of, 459. 
 
 VICE-CONSUL, 
 
 certificate of, abroad, 381. 
 
 VIDELICET, 
 
 effect of, iti pleading, 213, n. 
 
 VISITATION-BOOKS, 
 
 of heralds, 421. 
 
 VISITOR, 
 
 eentence of, conclusive, 356. 
 
 VOIR DIRE, 
 
 examination on, as to interest, 131. 
 
 form of swearing, 22. 
 
 religious opinions, 24. 
 
 contents of deeds and writings, 132. 
 objection, arising on, may be removed on the same, 132. 
 
 how removed by independent proof, 133.
 
 INDEX TO VOL. I. 
 
 693 
 
 w 
 
 WAGER, 
 
 WAGES, 
 
 WAB, 
 
 in action for, one who lays a similar wager is competent, 137. 
 on event of prosecution, will not make witness incompetent, 139. 
 
 agreement for, when not necessary to be stamped, 530. 
 in action for, by seamen, the contract to be produced by the defend- 
 ant, 437. 
 
 this rule confined to voyages on board of British ships, 437, n. 
 the captain must produce the articles without notice, if he 
 has any objection upon them, 443. 
 
 articles of, how proved, 407. 
 
 proclamations for reprisals in Gazette, evidence of, 407. 
 notoriety of, sufficient proof, 407, n. 
 
 declaration of, by foreign government, evidence of commencement of 
 hostilities, 407, n. 
 
 WARRANT 
 
 of commissioners of bankrupt to bring witness before them, 13. 
 
 WARRANTY, 
 
 action in tort for breach of warranty of goods — plaintiff need not 
 prove that defendant knew the goods to be in an unfit state, though 
 so averred, 207. 
 
 the substantive parts of the warranty to be stated and proved, 
 208, 209. 
 of horse, contained in receipt for the price, need not be stamped, 528 
 
 WASTE, 
 
 action for, 201. 
 
 averment of, requisite proof of, 201. 
 
 WAY. See tit. Road. 
 
 public right of, 
 
 hearsay evidence of, 248, 249. 
 
 verdict, evidence, though between other parties, 328. 
 private right of, 
 
 hearsay, whether evidence of, 328. 
 usage, evidence of, 163, 164. 
 
 extent of right limited by the usage, 165. 
 use of way for carriages, evidence of a grant of drift-way, 
 165. 
 
 WIFE. See tit. Husband and Wife. 
 
 answer of to bill, whether evidence against herself after husband's 
 death, 362.
 
 694 INDEX TO VOL. I. 
 
 WILL, 
 
 of personal property, 
 
 proof of in ecclesiastical court, 344, 397 
 probate, evidence of, 344. 
 
 leger-book of ecclesiiislical court, evidence of contents of, 398. 
 copy of, 39S, 496. 
 
 evidence to prove relationship, 398, 496. 
 of real property, 
 
 requisites of by statute of frauds, 494. 
 
 of copylioid, requires neither attestation nor signing, 494, n. 
 subscribing witness to, need not see testator sign, 499. 
 
 witnesses to, may subscribe at different times, 499 
 exemplification of will, not evidence, 496. 
 quality of witnesses, 494. 
 single witness, sufficient at law, 496. 
 rule in Chancery, 496. 
 on trial of issues, 497. 
 person convicted of infamous crime, not good witness, 494. 
 witness interested under will, 495. 
 
 whether competent after release, 495. 
 legatee, whether competent after legacy paid, 495. 
 devise to witness void, 495. 
 husband of devisee, not competent, 496. 
 creditor may attest though will c!iarged with debt, 495. 
 subscribing witness what to prove, 497. 
 
 may prove will forged, 43. 
 executor, good attesting witness, when, 495. 
 signing, 497. 
 
 in any part of a will, 497. 
 of part, intending to sign the whole, 497. 
 by mark, 497. 
 by stamped name, 497. 
 by seal, insulFicient, 497. 
 when testator is blind, 498. 
 attestation, 499. 
 
 witnesses need not e.'jpress that they subscribed in the 
 
 testator's presence, 499. 
 on trial of issue from chancery, all the witnesses must 
 
 be examined, 497. 
 witnesses need not see testator sign, 499. 
 
 if he acknowledges his will, sufficient, 499. 
 need not all attest at the same time, 499. 
 nor attest every page, 500. 
 
 whole will must be present, 500. 
 what is evidence of the whole will being 
 present, 500.
 
 INDEX TO VOL. I. 
 
 WILL — continved. 
 
 attestation by mark, 50O. 
 
 in presence of testator, 500. 
 
 if the testator migiit see the attestation, suffi- 
 cient, 500. 
 execution, how proved when subscribing witness dead, insane, or 
 
 abroad, 501, 502. 
 where attestation does not express that witnesses signed in presence 
 of testator, 501. 
 
 when hand-writing cannot be proved, 501. 
 witness denying execution, 502. 
 will 30 years old, whether to be proved, 503. 
 
 will impeached for fraud — evidence is admissible of what testator said 
 at the lime, 552. 
 
 attesting vvitne.ss may impeach, 308, 502. 
 
 if impeached by witness, who imputes fraud to the other sub- 
 scribing witnesses deceased, evidence of their good character 
 is admissible, 308, 502. 
 ambiguity in will, when explained by parol evidence, 532. 
 latent ambiguity, may be explained, 532. 
 devise to two of the same name, 532. 
 mistake in devisee's name, 532. 
 
 in description of property, 531,533, 534. 
 in name of fund, 533. 
 patent ambiguity, not explained by arol, 538. 
 uncertainty in devise, 538. 
 omission of name in will, 539. 
 surname without christian name, 539. 
 initial of surnanie only, 539. 
 trust in will raised by parol evidence, 577. 
 
 WINTON. See til. Hue and Cry. 
 
 695 
 
 WITNESS. See Compensation. 
 
 absence of, a ground for putting oft' trial, 16. 
 
 abroad, or going abroad, may be examined on interrogatories, when, 
 14. 
 
 evidence in India how procured, 15. 
 attendance of, to give evidence at trial, 2. 
 attending, free frotn arrest, 4. 
 mode of procuring attendance, 3. 
 in civil cases, 3. 
 in criminal cases, 8. 
 before commissioners of bankrupt, 13. 
 
 compellable to attend, 13, 
 before conmiissioners of inclosure, 14. 
 before court-martial, 14. 
 before magistrates, 14. 
 attesting witness to deed, or other writing, 464. See tit. Deed.
 
 696 INDEX TO VOL. I. 
 
 WITNESS— cotitinued. 
 
 invalidating instrument, competency of, 43. 
 proof of execution by, 464. 
 may prove it forged, 41, 308. 
 
 cannot be objected to as interested by one, virho asked him to at- 
 test, knowing his situation, 466. 
 when not produceable, how the deed ia to be proved, 146. 466, 
 
 473, 474, (2.) 
 what excuses the absence of such witness, 473, 473, n. 
 attesting witness to will, 496. 
 proof of will by, 496. 
 quality of attesting witness, 494. 
 
 single witness, sufficient at law, to prove the execution, 496. 
 rule in Chancery, 496. _ 
 
 on trial of issues, 497. 
 convicted of infamous crime, not good witness, 494. 
 witness interested under will, 495. 
 devise to witness, void, 495. 
 husband of devisee, not competent, 496. 
 creditor may attest, though will charged with debt, 495. 
 witness may prove will forged, 43, 308, 502. 
 witness need not see testator sign, -499. 
 
 if he acknowledges liis will, sufficient, 499. 
 all witnesses need not attest at the same time, 499. 
 nor attest every page, 500 
 
 whole will must be present, 500. 
 witnesses must sign in presence of testator, 500. 
 
 if the witness might see the attestation, sufficient, 500. 
 witness denying or impeaching the execution, 502. 
 deposition of witness. See tit. Deposition. 
 incompetency of witness, 
 
 1. Want of understanding, 18. 
 
 insane, idiots, lunatics, IS. 
 
 deaf and dumb, how to give evidence, 19. 
 
 children, when competent, 19. 
 
 2. Want of religious principle, 
 
 general rule, 20. 
 
 atheists, infidels, incompetent, 21. 
 heathens competent, when, 21. 
 witness for prisoner formerly, not sworn, 21 . 
 Quakers may affirm, in civil cases, 25. 
 witness not known to be a Jew, sworn in the common form 
 — no ground for new trial, 24, n. 
 
 3. Infamy of character, 27. 
 
 witness, when incompetent by crime, 28. 
 competency, how restored, 31.
 
 LNDEX TO VOL. I. 697 
 
 WmiESS— continued. 
 
 acconiplicps competent, 36 See tit. Accomplice. 
 
 cross-examination, as to character, 282, 291. 
 4. Interest renders witness incompetent, 45. 
 reason of the rule, 45. 
 objection, when to be made, 131. 
 
 taken on voir dire, removed on voir dire, 132. 
 what not an interest to disqualify, 47. 
 
 witness in same situation, 47. 
 
 insurer in policy, 47. 
 
 vendor of estate, 48. 
 
 vendor of goods, 49. 
 
 dormant partner, 49. 
 
 sub-tenant, 49. 
 
 reversioner, 49. 
 
 captain of ship, 49. 
 
 person speaking to his own insolvency, 49. 
 
 party injured, in prosecution, 50. 
 in case of perjury, 50. 
 in case of usury, 51. 
 
 person liable to information, 51. 
 or to action, 51. 
 
 bond security for administrator, 52. 
 
 executor — trustee, 52. 
 
 person believing himself interested, 53. 
 what is such an interest, as to disqualify, 55. 
 
 1. Where the verdict may be evidence for or against a witness, 
 55. 
 servant, 56. 
 broker, 56. 
 landlord, 56. 
 commoners, 57. 
 
 claiming under custom, 57, 58. 
 claiming by prescription, 58. 
 tenant in possession, 56. 
 under-tenant, 64. 
 person discharging his debt, 63. 
 2. Liability for costs, 
 bail, 59. 
 
 person depositing money in lieu of bail, 63. 
 sheriff's officer, 59. 
 prochein a?ny, 59. 
 partner, 59. 
 drawer of bill, 61. 
 payee and endorser, 61. 
 agent, 62. 
 co-obligor, 62. 
 
 Vol. I. 88
 
 698 INDEX TO VOL I. 
 
 WITNESS— continued. 
 
 3. Where some direct benefit from the event, 63 
 residuiirj' legatee, 63. 
 person for whose benefit policy eflected, 63. 
 agreement for lease, 63. 
 promise to pay conditionally, 64 
 party lo consolidation rule, 64. 
 devisee, 64. 
 
 heir, 64- \ 
 
 remainder-man, 64. 
 tenant in possession, 64. 
 freeman, 65. 
 
 (See also titles of the several actions, in Index, for other 
 "^ examples.) 
 
 interested on both sides, competent, 66. 
 in action against ship-owners, the captain may prove re- 
 ceipt of money, 66. 
 
 in question on priority of demise, lessor competent, 66. 
 in action by endorsee against drawer, acceptor, may- 
 prove no eflects in his hands, 67. 
 payee of bill may prove endorsing to the plaintiff before 
 
 the bill was due, 67. 
 in action by payee against maker of note, a joint maker 
 
 may prove defendant's signature, 67. 
 co-obligor, 67. 
 
 bill of e.xchange drawn as in partnership firm, — either 
 partner may prove want of authority in the drawer, 
 in action by payee against acceptor, 67. 
 where defendant pleads in abatement, that he promised 
 jointly with A. and B , A. may prove that the defend- 
 ant was not authorized by the partners, 68. 
 party to suit, incompetent, 69. See tit. Party. 
 though mere trustee, 69. 
 
 corporate body, liable to costs individually, incompetent, 
 though indemnified, 69. 
 but competent, if liable only incorporate capacity, 
 70. 
 husband or wife of party to the -suit incompetent, 76. 
 
 See tit. Husband and Wife. 
 party injured, competent in criminal prosecutions, 119. 
 
 See tit. Prosecutor. 
 exceptions to general rule on the subject of interest, 12.5. 
 informers, competent, when, 125.
 
 INDEX TO VOL. I. (^99 
 
 WITNESS— co«/i7i?ie(/. 
 
 iuhabitants of county, parish, &c., when, 126. 
 See tit. Inhabilant. 
 
 persons entitled to reward on conviction, 129. 
 freemen, when competent, 71. 
 
 agents, servants, fictors, when competent, 129. See tit. Agent. 
 interested witness, how rendered competent, 131. 
 
 objection raised on voir dire, removed on voir dire, 132. 
 by release, payment, &c., 133, 134, 135. See tit. Release. 
 member of corporation, made competent, 136. 
 
 by resignation or disfranchisement, 136. 
 becoming interested after making deposition, 364. 
 interested, depositions to be read when not objected to on cross- 
 interrogatories, 365. 
 release, when unnecessary, 136. 
 examination of witness, 267. 
 on interrogatories, 14. 
 
 of prisoner of war, 5, 6. 
 of witness resident abroad, 14. 
 resident in India, 15. 
 going abroad, 14. 
 by consent, 15. 
 as to interest, 267. 
 in chief, 268. 
 leading questions, rule as to, 268. 
 
 in cross-examination, 275. 
 in examination in chief, 268. 
 to contradict another witness, 269, 270. 
 priviledged from answering, when, 276. 
 
 when he might be subject to penalties, or criminal charce, 276. 
 if witness answers such questions in an examination, his 
 examination is evidence against him, 89. 
 not, if only subject to civil suit, or debt, 277. 
 when the question might subject to forfeiture, 278. 
 when it might degrade his character, 278. 
 arguments for and against, 279. 
 whether such questions legal, 282. 
 not allowed to answer, vvlun, 284. 
 
 as to information given to government or the police, 284, 285. 
 as to official communications, 287.
 
 700 INDEX TO VOL. I. 
 
 WITN ESS— continued. 
 
 examination on voir diie, 132. See tit. Voir Dire. 
 
 witness may be examined as to the contents of writings, 132. 
 if he produces the writing, it ought to be read, 132. 
 as to form of swearing most binding, 24. 
 cross-examination of witness, 272. 
 rule as to, 272. 
 how far he may be led, 275. 
 not to collateral irrelevant facts, 272, 291. 
 
 what questions are irrelevant, 273. 
 witness, called and sworn, but not examined, may be cross-exam- 
 ined, 274. 
 rule as to cross-examining an unwilling witness, 269, 275. 
 rule as to leading questions, 275 
 
 rule as to cross-examining, preparatory to proof of contradictory 
 statement, 293, 294. 
 whether, after cross-examination, a party may recall the wit- 
 ness to prove his case, and put leading questions, 274. 
 credit of witness, how impeached, 291. 
 
 by disproving the facts stated by him, 291. 
 by proof of his general character, 291. 
 not by evidence of particular facts, 291. 
 by proof of contradictory statements, 293. 
 by comparing his evidence with his deposition, 310. 
 
 rule of cross-examination as to verbal statements of wit- 
 ness on other occasions, 293. 
 rule of cross-eximination as to written statements, 296. 
 re-examination as to former statements, 30-1. 
 party calling, cannot discredit him, by evidence of his gene- 
 ral bad character, 308. 
 
 or by proof of contradictory statements, 309 . 
 but may disprove facts, 309. 
 credit of witness, how supported, 306. 
 
 proof of general good character, to oppose evidence of char- 
 acter on the other side, 308. 
 pi oof that he affirmed the same thing on former occasions, not 
 admissible in reply, 307. 
 number of witnesses to prove a fact, 150. 
 
 in trial for perjury, 151. 
 in treason, 152. See tit. Treason. 
 in courts of equity, 154. 
 in ecclesiasticarcourts, 155. 
 opinion of witness, when evidence, 290.
 
 INDEX TO VOL. I. 701 
 
 WITNESS— confwwetf. 
 
 on question of science or art, 290. 
 
 of medical men, ns to insanity, cause of death, &c. 290. 
 
 in matters of trade, 290. 
 
 as to genuineness of hand-writing, 492. 
 
 WORDS, 
 
 action for. See tit. Defamation, Libel. 
 
 WORK AND LABOUR, 
 
 presumptive evidence of payment, 159. 
 
 WORKMEN, 
 
 when competent on behalf of their employer, 130. 
 
 WRIT, 
 
 return of sheriff upon, when evidence of the fact, 391. 
 not evidence of payment to judgment-creditor, 391. 
 evidence of licence, 391. 
 suing out, how proved, 390. 
 
 when only inducement, 390. 
 
 when the gist of the action, 390. 
 fieri facias, without proof of judgment, evidence, when, 390. 
 proof of title under elegit, 390. See tit. Elegit, 
 ofhabeas corpus adtestificandum,^^^^ ^.^ Subpoena- 
 of subpana ad testificandum, > Witne&t 
 
 duces tecum. ) 
 
 WRIT OF ENQUIRY 
 
 after judgment by defiiult, what admitted, 186. 
 
 in demurrer, what admitted, what to be proved, 186. 
 
 WRITING, 
 
 public, not judicial, 403. 
 
 inspection of, 429. See tit. Inspection. 
 
 proof of entry in public book, 424. 
 private, 422. 
 
 when it does not exclude parol evidence, 221. 
 
 receipt, 220. 
 
 terms of tenancy, 221. 
 
 resolutions at a meeting, 221. 
 
 proposal, 221, 222. 
 
 terms of sale unsigned, 221. 
 
 proof of written instruments, 464. 
 See tit. Deed. 
 ancient writing. See tit. Rent-roUs, Terrier, &.c. 
 proper custody of, 479, 480, 481. 
 may be proved by comparison, when, 490, 491. 
 secondary evidence of, 452. 
 hand-writing, proof of, 483. 
 
 See tit. Hand-writing.
 
 702 INDEX TO VOL. I. 
 
 WRITING— co«<tnued. 
 
 forgery of, how proved, 224. 
 
 Sec til. Forgery. 
 los3 of writing, how proved, 452, 454. 
 parly in possession of, — proof of, 440. 
 secondary evidence of, 457. 
 
 of jincient writings, 459. 
 duplicate original of, 445 
 copy, when evidence, 446, 457. 
 parol evidence of, 439, 457. 
 notice to produce, 439. See tit. JSTotice- 
 
 writing called for under notice, not made evidence, unless in- 
 spected, 441. 
 regular time for producing, 441. 
 process for compelling production of, 3, 436. 
 
 party, when excused from producing, 436, 438. 
 rule of court, to produce, 436. 
 rule for inspecting and taking copy, 437. 
 judge's order for producing in action of policy, 438. 
 
 END OF VOLUME I.
 
 ,UC SOUTHERN REGIONAL LIBRARY FACILITY
 
 
 'i i