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 PEACTICAL TREATISE 
 
 or THE 
 
 LAW OF EVIDENCE. 
 
 By THOMAS STARKIE, Esq., 
 
 OF THE INNER TEMPLE, ONE OF HER MAJESTY'S COUNSEL. 
 
 ^Ite ^m\n ^mman Umx tbe Jourtlt g^autlou (^rtition, 
 
 BY 
 
 DOWDESWELL and MALCOLM, 
 
 OF THE INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 WITH THE NOTES TO FORMER AMERICAN EDITIONS, 
 
 By METCALF, INGRAHAM and GERHARD. 
 
 AND ADDITIONAL NOTES AND EEFEEENCES TO AMERICAN OASES, 
 
 By GEORGE SHARSWOOD. 
 
 PHILADELPHIA : 
 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, 
 No. 535 CHESTNUT STREET. 
 
 1876.
 
 T 
 
 Entered according to Act of Congress, in the year 1876, 
 
 BY T. & J. W. JOHNSON & CO. 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 
 9 (L 
 
 HENIIV B. ASIIMKAD, PRINTER, 
 1102 and 1104 Saiisom Street.
 
 > 
 I 
 
 £ 
 
 NOTE BY THE EDITOR 
 
 TENTH AMERICAN EDITION. 
 
 Of the merits of Starkie on Evidence it is entirely unnecessary to 
 speak. It has been too long and favorably known to the profession 
 to require commendation. The Fourth English Edition has been 
 adapted to the present state of the law in England. It is true that 
 some of the alterations recently adopted by statute in that country 
 have not yet been universally introduced into this. In many of the 
 states, however, they have already been incorporated into their legisla- 
 tion. The experience of those states where the law of evidence has 
 been simplified by the repeal of all arbitrary rules of exclusion speaks 
 so loudly in favor of that reform, that the example must spread. The 
 labors of former American Editors have been carefully retained, and 
 notes and references to the more recent decisions have been added to 
 bring up the work to the present time. 
 
 G. S. 
 
 April, 1876.
 
 ADVERTISEMENT 
 
 TO THE FOURTH LONDON EDITION. 
 
 The Editors, in preparing for publication this edition of the first 
 volume of Mr. Starkie's work, have used their best endeavors to 
 render that volume, which contains the Principles of the Law of 
 Evidence, perfect in itself and available for the purposes not only of 
 the Student but also of the Practitioner. They have subdivided it 
 into chapters, so as to render it more easy for perusal and reference. 
 They have introduced into it those heads from the second and third 
 volumes which relate to Parol Evidence and Presumptions, and have 
 relieved it of much matter which more properly belonged to the 
 Digest of proofs contained in those volumes. They have also added 
 a copious Index, still retaining the full analysis of the matter con- 
 tained in the Table of Contents, and have thus, they trust, rendered 
 this volume as complete a Treatise in itself as the present state of the 
 Law will permit.
 
 PREFACE 
 
 TO THE FIRST EDITION, 
 
 The investigation of truth, the art of ascertaining that which is 
 unknown from that which is known, has occupied the attention, and 
 constituted the pleasure as well as the business of the reflecting part 
 of mankind in every civilized age and country. But inquiries of 
 this nature are nowhere more essential to the great temporal interests 
 of society than where they are applied to the purposes of judicial 
 investigation in matters of fact. Their importance is obviously com- 
 mensurate with the interests of justice and of right ; the best and 
 wisest laws are useless until the materials be provided upon which 
 they can safely be exercised ; in other words, the administration of 
 a law assumes the truth of the facts or predicament to which it is 
 applied. 
 
 With those who regard law as a science which rests on certain fixed 
 and equitable foundations and Avho view its decisions not as arbitrary 
 precedents, but valuable only as they illustrate the great principles 
 from which they emanate, this branch of jurisprudence, which com- 
 prises the rules and practice of judicial investigation, must exceed all 
 others in point of interest. However widely different codes may vary 
 from each other in matters of arbitrary positive institution, and of 
 mere artificial creation, the general means of investigating the truth 
 of contested facts must be common to all. Every rational system 
 which provides the means of proof must be founded on experience 
 and reason, on a well-grounded knowledge of human nature and con- 
 duct, on a consideration of the value of testimony, and on the weight
 
 VI PREFACE. 
 
 due to coincident circumstances. Here, therefore, the object of the 
 law is identified with that of pure science ; the common aim of each 
 is the discovery of truth ; and all the means within the reach of 
 philosophy, all the connections and links, physical or moral, which 
 experience and reason can discover, are thus rendered subservient to 
 the purposes of justice. In diiferent systems of laAv, the great prin- 
 ciples on which the rules of evidence depend may be and are variously 
 modified ; but every departure from those principles, wheresoever it 
 occurs, must constitute a corresponding and commensurate imperfec- 
 tion. 
 
 Notwithstanding, however, the universality of the great principles 
 of the science, it is essential in practice to guard and limit the recep- 
 tion of evidence by certain definite and positive rules. Nature has 
 no limits ; but every system of positive law must, on grounds of 
 policy, prescribe artificial boundaries, even in its application to a 
 subject which from its independent nature least of all admits of such 
 restraint. These, however, are necessarily for the most part of a 
 negative description, the effect of Avhich is to exclude evidence in 
 particular cases, and under special circumstances, on general grounds 
 of utility and convenience; yet even here so difficult is it to prescribe 
 limits on such a subject, without the hazard of committing injustice, 
 that rules, the general policy of which is obvious, are by no means 
 favored. Thus, although according to the law of England, he who 
 is interested is also incompetent to be a witness, yet the courts are 
 ever anxious to apply the objection, as natural reason would apply it, 
 to the credibility rather than to the competency of a party; to re- 
 ceive and to weigh his testimony, rather than wholly and peremptorily 
 to exclude it. It is true, that in many instances the law may by rules 
 of a positive nature annex a technical and arbitrary effect to particu- 
 lar evidence, which does not actually appertain to it. Thus, by our 
 law, judgment is frequently absolute and conclusive evidence of the 
 facts which have been already contested; but one general observation 
 is applicable to this and to most instances of a similar nature includ- 
 ing the numerous cases of legal presumption, that they are not used
 
 PREFACE. Vll 
 
 as the means or instruments of truth, but are in virtue and effect 
 nothing more than mere technical and positive rules, which are wholly 
 independent of the principles of evidence, and whose only foundation 
 is their general utility and convenience. 
 
 To go farther, and by any positive and arbitrary rules to annex to 
 particular evidence any technical and artificial force Avhich it does not 
 naturally possess, or to abridge and limit its proper and natural effi- 
 cacy, must in all cases, where the object is simply the attainment of 
 truth, not only be inconsistent and absurd in a scientific view, but 
 what is worse, would frequently be productive of absolute injustice. 
 To admit every light which reason and experience can supply for the 
 discovery of truth, and to reject that only which serves not to guide 
 but to bewilder and mislead, are the great principles which ought to 
 pervade every system of evidence. It may safely be laid down as an 
 universal position, that the less the process of inquiry is fettered by 
 rules and restraints, founded on extraneous and collateral considera- 
 tons of policy and convenience, the more certain and efficacious will 
 it be in its operation. 
 
 To pursue such general observations further in this place would 
 interfere too much with the arrangement of the present work, the 
 objects of which are now to be announced. 
 
 It is proposed in the following Treatise to consider the practice of 
 the law in England on the subject of judicial proofs. With this view, 
 the elementary principles, by which the admissibility of evidence to 
 prove matters of fact before a jury is governed, will first be con- 
 sidered. A second division will contain an enumeration of the dif- 
 ferent instruments of evidence. In a third, the application of these 
 principles and instruments to the purposes of proof will be considered, 
 as also the distinction between law and fact, and the force and effect 
 of direct and circumstantial evidence; and, lastly, the evidence essen- 
 tial to the proof of particular issues Avill be detailed, and references 
 made to the leading decisions connected with the particular subject of 
 proof.
 
 Vlll PREFACE. 
 
 Nothing can be more agreeable than to compare the Law of Evi- 
 dence as it now exists, with the rude practice which formerly pre- 
 vailed, when its principles were so dubious and unsettled, that the 
 very means devised for the discovery of truth and advancement of 
 justice were not unfrequently perverted to the purposes of injustice, 
 and made the instruments of the most grievous and cruel oppression. 
 Whoever institutes that comparison will find great reason to approve 
 of the changes which have taken place ; but no mistake can be more 
 injurious to the law, as a system, or oppose a greater obstacle to all 
 future improvement, than to suppose that the Law of Evidence has 
 attained to its highest perfection. It is, however, far from the 
 Author's present purpose to enter into any discussion on the subject 
 of the imperfections and anomalies which yet encumber this branch 
 of the law. To the learned judges of modern times the highest 
 praise is due for the strenuous exertions which they have made to 
 reduce the Law of Evidence to a system, founded on just and liberal 
 principles ; and it is to be hoped not only that those imperfections 
 which still subsist, which have been spared from their antiquity, and 
 exist as a kind of prescriptive evils, will in time be removed by legis- 
 lative, if they be beyond the reach and scope of judicial authority ; 
 but that such other improvements will be made as reason exercised 
 on mature experience shall warrant.
 
 TABLE OF CONTENTS. 
 
 PART I. Containing the General Principles of the Law of Evidence, 
 p. 1 to lOL 
 
 PART II. The Instruments of Evidence, p. 102 to 583. 
 
 PART III. The Application of the above Principles and Instruments to 
 THE Proof of Issues generally, p. 584 to the end. 
 
 PART I. 
 
 PRINCIPLES OF EVIDENCE. 
 
 INTRODUCTION. 
 
 Elementary Divisions . . . . . . .1 
 
 The division of law into preventive and remedial . . . ib. 
 
 The necessity for rules of investigation to effectuate such provisions . 2 
 
 Issues in fact result from pleadings, and are triable by jury . . 3 
 
 Observations on the origin and functions of the jury . . .5 
 
 on the fitness of the tribunal .... 6 
 
 What is comprised under cwMeuce; distribution of the subject . . 14 
 
 CHAP. I. — Natural Principles of Evidence. 
 
 The general principles of evidence are the ordinary ones naturally used for 
 the purpose of investigating past transactions .... 15 
 
 These are subject to artificial rules, which either restrain natural evidence 
 or create some artificial effect . . . . . 11,12 
 
 CHAP. II. — Excluding Principles. 
 
 Principles of excluding rules . .... .18 
 
 Evidence distinguishable as direct and indirect . . . .21 
 
 i)irec< distinguishable as immediate and mediate . . . ib. 
 
 Principles which regulate the admission of immediate testimony . . ib. 
 
 Oath ......... 22 
 
 Tests of truth ; disqualification from turpitude .... ib. 
 
 Disqualification from interest ...... ib. 
 
 Necessity for defining the rule . . . . . , ib.
 
 TABLE OF CONTENTS. 
 
 Nature of the interest 
 
 Exceptions .... 
 
 Operations of this excluding principle 
 
 Obligation of an oath , 
 
 What belief is necessary . 
 
 Force of an oath 
 
 Oath must be judicial 
 
 Declaration by party in extremis 
 
 Affirmation by a Quaker . 
 
 Witnesses for prisoners are now to be sworn 
 
 Bankrupts and their wives 
 
 Test of cross-examination 
 
 Excludes hearsay evidence 
 
 Exception, judgments ?■« 7-era . 
 
 Exception, dying declaration 
 
 Exclusion of secondary evidence 
 
 from policy — husband and wife 
 Confidential communication 
 Witness not bound to criminate himself . 
 Exclusion from state policy 
 
 24 
 ih. 
 28 
 30 
 ih. 
 ih. 
 31 
 32 
 ih. 
 33 
 34 
 ih. 
 35 
 ih. 
 38 
 39 
 ih. 
 40 
 41 
 ih 
 
 CHAP. III. — Mediate and Secondary Evidence. 
 
 General reputation .... 
 
 Reputation in case of pedigree 
 
 Ancient facts .... 
 
 Presumptions, why founded on reputation 
 
 Reputation, in what cases admissible 
 
 The facts must be of a public nature . 
 
 Must be general .... 
 
 Support by acts of enjoyment . 
 
 Admission ..... 
 
 Declaration accompanying an act 
 
 Secondary mediate testimony 
 
 Depositions of witnesses (in former proceedings) 
 
 Traditionary evidence 
 
 Of public nature .... 
 
 Confined to general declaration 
 
 Derived from persons likely to know the fact . 
 
 Must be free from suspicion . 
 
 Declarations, &c., made against interest, &c. . 
 
 In course of business 
 
 
 43 
 
 
 . 45 
 
 
 46 
 
 
 . ih. 
 
 
 47 
 
 
 . ih. 
 
 
 49 
 
 
 . 50 
 
 
 ih. 
 
 
 . 51 
 
 
 55 
 
 since deceased 
 
 . 61 
 
 
 62 
 
 
 . ih. 
 
 
 62 
 
 . 
 
 . ih. 
 
 
 ih. 
 
 
 . 64 
 
 
 65 
 
 CHAP. IV. — Indirect Evidence. 
 
 Necessity for resorting to indirect evidence . . . . .67 
 
 Evidence of circumstances connected with the fact . . . . ih. 
 
 Juries formerly returned from the vicinage . . . . .69 
 
 Foundation of /rre.s't(»ip</ons as to motives .... 70 
 
 Presumptions from conduct . . . . . . .71 
 
 Omission to produce evidence within the knowledge and power, of the 
 party ......... 7") 
 
 Presumptions from the course of dealing ..... ib. 
 
 Presumption as to continuance ...... 76 
 
 Circumstantial and presumptive evidence in genei'al . . .77 
 
 General rule that all facts arc admissible which afford reasonable infer- 
 ences ......... 78 
 
 Natural course of in((uiry on failure of direct evi<lenee . . .79 
 
 Circumstantial (ividerice. ....... SO 
 
 To what extent admissible . . . . . . .81
 
 TABLE OF CONTENTS. 
 
 XI 
 
 Ees inter alios acta, grounds of the rule . . . . .81 
 
 Declarations by strangers ...... ib. 
 
 Acts of strangers . . . . . . • .82 
 
 Effect of tlie rule . . . _ . . . . . 84 
 
 Does not exclude the acts and admissions of a party . . .85 
 
 Or laws and customs ....... ib. 
 
 Or facts which have a legal operation on the question . . . ib. 
 
 Effects of the rule as to declarations, &c. .... 86 
 
 Declarations accompanying acts, why admissible . . . .87 
 
 Declarations when part of the res gestce, how proved ... 88 
 
 Declarations may be evidence for some purpose although not for others . 89 
 
 Collateral facts and circumstances ..... 90 
 
 Possession, ancient instruments . . . . . .93 
 
 Declarations admissible as explanatory evidence ... 95 
 
 On questions of skill . . . . . . . .96 
 
 CHAP. V. — Artificial Evidence. 
 
 Of ARTIFICIAL and conventional evidence .... 96 
 
 Records ......... 97 
 
 Verdict ......... 98 
 
 Conventional Evidence . . . . . . . ib. 
 
 Estoppels ......... 99 
 
 Presumptions ......... 100 
 
 PART II. 
 
 OF THE INSTRUMENTS OF EVIDENCE. 
 
 CHAP. I.— Oral Evidence. 
 
 Oral evidence, its natural priority ..... 102 
 
 1. — Mode of enforcing the attendance of a witness in civil and criminal 
 cases, and also of enforcing his production of writings in his pos- 
 session, and the incidents of his attendance or defatdt. 
 
 Compulsoi'yj)?'ocess on witness not in custody .... 103 
 
 Expenses of witness ....... ib. 
 
 Consequence of disobedience . . . . . . ib. 
 
 Where witness is in custody ...... 104 
 
 In criminal cases ........ 105 
 
 In bankruptcy and other cases ...... 108 
 
 Proceeding where the witness cannot be procured .... 109 
 
 Subpoena duces tecum . . . . . . .110 
 
 Writings to be produced where the production will not prejudice. . 112 
 
 Witness, obligation of, to be sworn and give evidence . . . 113 
 
 Protection of witness . . . . . . . . ib. 
 
 II. — Objections in exclusion of the testimony of ivitnesses. 
 
 Time of objecting . . . . . . . .115 
 
 Examination as to religious belief . . . . . .116 
 
 Infant ......... 117 
 
 Incompetency from turpitude . . . . . . ib. 
 
 from interest . . . . . . 118
 
 xn 
 
 TABLE OF CONTENTS. 
 
 Effect of Stat. 6 & 7 Vict. c. 85 
 Husband and wife 
 Mode of objecting to competency 
 Proof of interest by evidence 
 Time of objecting 
 
 125 
 138 
 143 
 144 
 ib. 
 
 III. — Mode of examinaiion in chief — Cross-examination, — and re-exami- 
 nation. 
 
 Examination in chief; leading questions 
 
 When necessary 
 
 When allowed 
 
 Witness as to what examinable 
 
 His belief . . . • . 
 
 Questions of skill 
 
 Foreign law 
 
 Opinion 
 
 General result 
 
 Witness may refresh his memory 
 
 Examination as to hearsay 
 
 Reputation 
 
 Matters of hearsay 
 
 Matters of confidence 
 
 Cross-examination 
 
 Practice as to cross-examination 
 
 Leading questions .... 
 
 Witnesses may be examined apart from each other 
 
 Cross-examination as to collateral facts . 
 
 How far the witness is bound to answer 
 
 Cross-examination in order to discredit a tvitness 
 
 Whether a witness must answer a question tending to d 
 
 Question to be put to warrant evidence in contradiction 
 
 Effect of answer on cross-examination 
 
 Cross-examination as to writings . 
 
 PiE-EXAMiNATioN of witness . 
 
 Recalling witness . 
 
 
 166 
 
 , , 
 
 . ih. 
 
 
 167 
 
 . 
 
 . 172 
 
 
 ib. 
 
 , , 
 
 . 173 
 
 
 175 
 
 , . 
 
 . 176 
 
 
 ib. 
 
 , 
 
 . 177 
 
 
 185 
 
 , , 
 
 . 186 
 
 
 191 
 
 , . 
 
 . ih. 
 
 
 194 
 
 . , 
 
 . 197 
 
 
 ib. 
 
 , ^ 
 
 . 198 
 
 
 200 
 
 , ^ 
 
 . 203 
 
 
 207 
 
 disgrace him 
 
 . ib. 
 
 1 
 
 213 
 
 , , 
 
 . 215 
 
 
 216 
 
 , , 
 
 . 231 
 
 
 236 
 
 IV. — The mode of rebutting the testimony of ivitaesses. 
 
 Credit of witness, how impeached ..... 
 
 By proof of declarations, &c., of the witness 
 
 Inquiry previous to contradiction ..... 
 
 Evidence in contradiction ..... 
 
 A party not allowed to discredit his own witness 
 
 A party when allowed to contradict his own witness 
 
 237 
 238 
 
 ib. 
 242 
 244 
 
 ib. 
 
 V. — The mode of confirming the testimony of tvitnesses. 
 
 Evidence in confirmation of witness ..... 
 On appeal . . . . . . . . 
 
 254 
 
 CHAP. II. — Written Evidence. 
 Proof of ruiiLic documents in general 
 
 255 
 
 I. — Documents of a j)ublic nature, not judicial. 
 
 IIow procured 
 
 Proof l)y exemjjiificaiion 
 
 Copies by autliori/cd ollicci'S 
 
 256 
 257 
 
 260
 
 TABLE OF CONTENTS. 
 
 Xlll 
 
 Proof by office copy .... 
 
 Statutory office copy ..... 
 
 Proof of public document by a sworn copy 
 
 Copy not admissible where the original is produced 
 
 Record, &c., how proved when lost 
 
 Public documents, not judicial, admissibility of 
 
 Acts of Parliament, public 
 
 Irish statutes 
 
 Private act of Parliament 
 
 Recitals in acts of Parliament 
 
 Acts of State — Gazette .... 
 
 Public documents printed by Queen's printer 
 
 Journals of the Lords and Commons 
 
 Public acts of the Crown 
 
 Ancient surveys under authority 
 
 Inquisitions post viortem 
 
 Terriers ...... 
 
 Proof as to place of deposit . 
 
 Public licenses — grants and certificates . 
 
 Certificates ..... 
 
 Public registers of a parish 
 
 Parish books ..... 
 
 Books and documents of public officers 
 Poll books ..... 
 
 Prison books 
 
 Corporation books 
 
 Chancellor's book 
 
 Books of clerk of the peace . 
 
 Ships' registers 
 
 Stage coach licenses . 
 
 Heralds' books 
 
 Armorial bearings 
 
 Duchy book 
 
 Commissioners' books 
 
 Land tax book 
 
 Public histories and chronicles 
 
 Public documents, how proved 
 
 II. — Judicial documents. 
 
 Judgments, &c., general principles of admissibility 
 Conclusive, when . . ... 
 
 Judgment in rem ..... 
 
 Judgment evidence as a fact, and as to all legal consequences 
 
 Judgment in matter of private litigation 
 
 Identity of parties 
 
 Those claiming in privity 
 
 Againsf one who might have been a party 
 
 Want of mutuality 
 
 Verdict in civil proceeding, whether evidence in a criminal case 
 
 Identity of the fact ..... 
 
 il/anrter of the adjudication .... 
 
 Application of the judgment in proof . 
 
 Effect of a judgment .... 
 
 When conclusive ...... 
 
 Foreign judgments, VfhQVL cor\.c\\xs\\Q 
 
 How far examinable ..... 
 
 Judgments of inferior courts, how far examinable . 
 
 In private matters, effect of . 
 
 Verdicts and judgments in criminal cases, admissibility of . 
 
 Verdict in criminal case not evidence in civil action
 
 XIV 
 
 TABLE OF CONTENTS. 
 
 Judgment in criminal cases, effect of, in evidence 
 
 A penal judgment conclusive as to all legal consequences 
 
 Judgments and convictions in inferior courts 
 
 Convictions by justices , 
 
 Sentences by colleges and visitors . 
 
 Judgments in rem, general principles 
 
 Of the ordinary and spiritual court 
 
 Sentence of a spiritual court 
 
 Of condemnations in the Exchequer . 
 
 Admiralty decisions 
 
 Order of justices .... 
 
 Judgments in quo warranto 
 
 Conclusive against parties, when 
 
 To prove custom, &c. 
 
 Proof of judgments, verdicts, &c. . 
 
 of a decree in Chancery 
 Sentences of spiritual courts . 
 Judgment of an inferior court . 
 Proof of convictions by justices of the peace 
 Of an award .... 
 
 Of a foreign judgment 
 Judgment, how rebutted . 
 Inquisitions, when admissible 
 Depositions, when admissible 
 Witness must be dead or absent 
 Identity of parties 
 Identity of subject-matter 
 Privity of claim • . . . 
 
 In a legal proceeding 
 Power to cross-examine . 
 
 Depositions, when evidence to prove reputation 
 India, examination of witnesses in 
 Depositions of witnesses resident abroad 
 Bill to perpetuate testimony 
 Preparatory facts, how proved 
 Existence of a lawful cause 
 Identity of deponent .... 
 Proof by copy, &c. 
 Leading interrogatories 
 Depositions in Ecclesiastical Courts 
 Writs, u-arrants, &c., when evidence 
 For what purposes admissible . 
 Effect of the writ in evidence 
 Sheriff's return on a Avrit 
 Writs, PROOF of ... . 
 
 Bill in equity, when evidence 
 Answer in Chancery, when evidence 
 The whole of an answer is evidence 
 Proof of bill and answer 
 Affidavits ..... 
 Rules and orders .... 
 Pleadings in an action at law 
 Protestations ..... 
 
 III. — Mixed documents 
 
 Public companies under statutes 
 
 Court rolls 
 
 Corporation brjoks .... 
 
 liooks of public companies, &c. . 
 
 Proof of corporation books . 
 
 452 
 
 ib. 
 
 455 
 
 456 
 
 ib.
 
 TABLE OF CONTENTS. 
 
 XV 
 
 IV. — Private documents. 
 Express admissions by a party 
 Estoppel ....... 
 
 Privies bound bt/ estoppel, .... 
 
 The sense of contracts not to be altered by parol evidence 
 Declaration or entry by third person admissible, when 
 Entry or declaration accompanying an act 
 Title deeds ...... 
 
 Surveys and maps . . . . . 
 
 Ancient deeds, maps, &c. ..... 
 
 Declarations or entries made against the interest of the party 
 Entry by rector ...... 
 
 Entries by receivers, stewards, &c., charo;incf themselves 
 Entry in the usual course of professional business 
 Proof of private instruments .... 
 
 Production ....... 
 
 Stamp, enrolment, &c. ..... 
 
 Proof by attestinr/ ivitness . 
 
 Proof of the sealing of a deed .... 
 
 Proof of delivery ...... 
 
 Proof on denial by subscribing witness 
 
 Excuse for the absence of subscribing witness 
 
 Proof by one of several attesting witnesses 
 
 Secondary proof in the absence of the attesting witness . 
 
 Proof of, when 30 years old 
 
 Proof as to custody of ancient documents 
 
 Proof where there is no attesting witness 
 
 Proof of, in case of loss 
 
 Evidence of search 
 
 Evidence of execution 
 
 Proof by secondary evidence 
 
 Of a letter copied by a clerk 
 
 Secondary evidence 
 
 Of an instrument when in t\iQ possession of the adversary 
 
 Notice to produce the deed, &c. 
 
 Proof of notice to produce . 
 
 When unnecessary 
 
 Proof of deed coming from the adversary's possession 
 
 Proof of, by admission . 
 
 Proof of, by enrolment 
 
 Deed to lead the uses of a fine 
 
 Recital in a deed ..... 
 
 An intrinsic objection will not preclude the reading 
 
 The ivhole of an entire document to be read 
 
 Jury to judge of the credit due to the whole, or part 
 
 459 
 461 
 463 
 
 ib. 
 
 ib. 
 466 
 472 
 473 
 
 ib. 
 474 
 476 
 479 
 492 
 498 
 499 
 503 
 
 ib. 
 508 
 509 
 510 
 512 
 518 
 519 
 521 
 524 
 529 
 530 
 531 
 541 
 542 
 547 
 548 
 550 
 554 
 558 
 561 
 565 
 571 
 573 
 577 
 
 ib. 
 578 
 579 
 583 
 
 PART III. 
 
 OF PROOF. 
 
 CHAPTER I. — Evidence to be supplied by the Parties. 
 
 General division ........ 
 
 Onus probandi ....... 
 
 585 
 ib.
 
 XVI 
 
 TABLE OF CONTENTS. 
 
 Neo;ative to be proved, when 
 
 Person most likely to possess best proof 
 
 AVhere the law presumes the affirmative 
 
 Where negative involves criminal omission 
 
 Appeal ..... 
 
 Ricrht to begin .... 
 
 Plaintiff ..... 
 
 Defendant ..... 
 
 Ejectment .... 
 
 Supplying defects after case closed . 
 
 Order of proof where several issues 
 
 Evidence in reply .... 
 
 Evidence, where defendant begins 
 
 Arguments ..... 
 
 Several defendants 
 
 Statement of counsel as to the cause of action 
 
 Order of trial where several issues 
 
 Order of address where different counsel appear 
 
 Evidence must be relevant 
 
 Must be confined to the issue 
 
 Collateral facts .... 
 
 Variances — evidence to correspond with proceedings 
 
 Surplusage .... 
 
 Partial proof ..... 
 
 Descriptive allegation 
 
 Redundant proof .... 
 
 General inference 
 
 Reconcilement of variance by amendment . 
 
 What matters admitted by the pleadings 
 
 Quality of evidence 
 
 The best evidence must be adduced 
 
 The rule is of a comparative nature 
 
 In what cases the rule applies . 
 
 The rule does not exclude inferior when superior evidence fails 
 
 Or is unattainable 
 
 Or where no presumption of fraud arises from the substitutio 
 
 Parol evidence not admissible to every written document 
 
 Purposes for which it may be offered in relation to written evidence 
 
 To supersede it . 
 
 By supplying defect .... 
 
 Where instrument ambiguous . 
 
 Patent and latent ambiguity 
 
 Removing apparent ambiguity . 
 
 Not admissible to contradict written evidence 
 
 Deed 
 
 Not admissible to vary, extend, or limit it . 
 
 Consideration .... 
 
 Written agreement .... 
 
 Parol evidence of intention to alter 
 
 Will . . . . 
 
 To vary legal construction 
 
 To disprove existence or to rebut operation 
 
 Fraud ..... 
 
 To avoid illegality .... 
 
 Mistake ..... 
 
 Discharge by other matter . 
 
 To give effect to written instrument 
 
 To apply . . 
 
 Latent ambiguity 
 
 To explain cliarter ....
 
 TABLE OF CONTENTS 
 
 Private deed ...... 
 
 Mercantile contracts .... 
 
 Annex customary incidents .... 
 
 Re})ut presumption .... 
 
 Independent form and efl'ect of parol evidence 
 
 Written instrument, when conclusive . 
 
 Receipt ...... 
 
 Confession ..... 
 
 As to what inconclusive .... 
 
 Operation against strangers 
 
 Independent operation of parol evidence 
 
 Oral evidence of a contract, when excluded 
 
 Distinction between secondanj and defective evidence 
 
 Quantity and measure of evidence 
 
 Matter judicially noticed 
 
 Legal presumptions 
 
 Kinds of 
 
 Artificial . 
 
 Of mere law . 
 
 Of law and fact . 
 
 Natural 
 
 Of innocence 
 
 Omnia rit£ esse acta 
 
 From time 
 
 Of continuance 
 
 From conduct 
 
 From experience 
 
 From course of dealing 
 
 XVII 
 
 700 
 701 
 710 
 7i;5 
 716 
 717 
 717 
 719 
 720 
 725 
 729 
 731 
 
 ib. 
 733 
 735 
 741 
 742 
 
 ib. 
 747 
 748 
 751 
 755 
 757 
 760 
 
 ib. 
 762 
 
 ib. 
 763 
 
 CHAP. II. — Duty of the Court. 
 
 Questions of law ..... 
 
 In special verdicts the jury must find facts, and not mere 
 Law and fact ..... 
 
 General distinction between questions of law and fact . 
 Instances of reasonable time, &c. 
 
 General terms involve questions of law as well as of fact 
 Reasonable time, when a question of law, when of fact 
 Notice of dishonor of bill of exchange 
 Reasonable time, &c., when a question of fact 
 Standard of comparison in the absence of a legal rule 
 Reasonable time, &c., is not in the abstract a question of 
 fact ...... 
 
 Mixed questions of law and fact 
 
 Reasonable time ..... 
 
 Probable cause ..... 
 
 Fraud ...... 
 
 Malice and intention .... 
 
 Negligence, &c. ..... 
 
 Construction of written documents 
 
 Collateral matters of law .... 
 
 Bills of excej)tions .... 
 
 Form of the bill ..... 
 
 Course of proceedings upon it . 
 
 Demurrer to evidence 
 
 Neic trial ..... 
 
 Mistake or misdirection of the judge 
 
 Misdirection, waiver of . 
 
 New trial not granted on an objection not taken at the tri 
 
 Mistake or misunderstanding of the jury 
 
 evidence 
 
 mere law 
 
 al 
 
 764 
 765 
 
 ib. 
 767 
 768 
 770 
 772 
 773 
 774 
 775 
 e 
 
 ib. 
 717 
 779 
 781 
 784 
 785 
 
 ib. 
 786 
 788 
 790 
 794 
 795 
 797 
 798 
 799 
 801 
 
 ib. 
 802
 
 XVlll 
 
 TABLE OF CONTENTS. 
 
 Practice as to nonsuits 
 Charge to juries . 
 
 CHAP. III. — Duty of the Jury. 
 
 Province of juries to loeigh probabilities 
 
 Juries, how far limited by law . 
 
 Juries bound by legal rules . 
 
 Degrees of evidence 
 
 Mere preponderance 
 
 Prima facie and conclusive evidence 
 
 Direct evidence 
 
 Integrity of witnesses 
 
 Influence 
 
 Manner of the witness . 
 
 Ability of witnesses . 
 
 Number of witnesses 
 
 Consistency of testimony 
 
 Effect of inconsistency . 
 
 Partial variances 
 
 Aggregate force 
 
 Conformity with experience 
 
 Conformity with circumstances 
 
 Grounds of circumstantial proof 
 
 Coincidence between facts and hypothesis 
 
 Moral coincidences .... 
 
 Conduct and intention .... 
 
 Coincidences from ordinary experience 
 
 Absence of evidence tending to a different conclusion 
 
 Dependent and independent circumstances . 
 
 Force of concurring probabilities 
 
 Basis of circumstances . . . • 
 
 Number of circumstances 
 
 False circumstances 
 
 Conclusive tendency .... 
 
 Exclusion to a moral certainty 
 
 The corpus delicti must be proved 
 
 Inquiry as to other hypothesis 
 
 To the exclusion of all reasonable doubt 
 
 Circumstantial evidence ought not to supersede direct evidence 
 
 Observations on conflicting evidence 
 
 Conflicting testimony 
 
 Positive and negative testimony 
 
 Demeanor of the witnesses .... 
 
 Consistency of testimony and comparison with circumstances 
 
 With written documents ..... 
 
 Total rejection of testimony 
 
 Comparison of direct with circumstantial evidence 
 
 Consistency of positive testimony with circumstances 
 
 Conflict in circumstances ..... 
 
 Rejection of circumstancesinconsistent with those which arc fully 
 
 Fraud in circumstances ..... 
 
 Conflict of established circumstances .... 
 
 806 
 810 
 
 . 812 
 
 814 
 . 816 
 
 817 
 . 818 
 
 819 
 . 820 
 
 ib. 
 . 821 
 
 822 
 . 823 
 
 827 
 . 828 
 
 829 
 . 830 
 
 832 
 . ib. 
 
 838 
 . 841 
 
 842 
 . 845 
 
 849 
 . 850 
 
 851 
 ib. 
 
 853 
 . 856 
 
 857 
 ib. 
 
 859 
 
 . 862 
 
 ib. 
 
 . 863 
 
 865 
 
 . 866 
 
 ib. 
 
 ib. 
 
 867 
 
 . 871 
 
 ib. 
 
 . 872 
 
 873 
 . 874 
 
 876 
 . 877 
 established 878 
 
 Statute & 7 Vict. c. 85 
 Statute 14 ct 15 Vict, c 99 
 Statute 15 <t 16 Vict. c. 76 
 
 APPENDIX. 
 
 881 
 882 
 887
 
 TABLE OF CASES. 
 
 Abbey v. Lill, 174. 
 Abbot V. JIassie, 650. 
 
 V. Plumbe, 504. 505. 
 Abbott V. Hendricks, 661. 
 
 V. Parsons, 802. 
 Abel V. Potts, 305. 
 Abignye v. Clifton, 294. 
 Abrahams v. Bunn, 118, 122. 
 Acerro v. Petroni, 172. 
 Ackerley v. Parkinson, 401. 
 Ackworth v. Kempe, 436. 
 Adam v. Kerr, 509, 513, 519, 520. 
 Adams v. Andrews, 796. 
 
 V. Canon, 172. 
 
 V. Davis, 122. 
 
 V. Peters, 712. 
 
 V. Savage (Terre-tenants of), 738. 
 
 V. Wordley, 660. 
 Adamthwaite w. Singe, 271, 503, 579. 
 Adey v. Bridges, 582. 
 Aflalo V. Fourdrinier, 120, 129, 555. 
 Agriculturist Cattle Insurance Company 
 
 V. Fitzgerald, 501. 
 Aitcheson v. Madock, 590. 
 Alcock V. Cooke, "285. 
 
 V. Ro^ai Exchange Insurance 
 Company, 425. 
 Aldridge v. Haines, 321. 
 Alexander v. Barker, 808. 
 
 V. Gibson, 244, 245. 
 Alivon V. Furnival, 355, 540. 543. 
 Allay V. Hatchings, 250. 
 Aldred v. Halliwell, 605. 
 Allen V. Denstone, 464. 
 
 V. Dundas, 375, 400, 403. 
 V. Pink, 656, 724. 
 Allen's case, 643. 
 
 Aliibone v. Attorney-General, 414. 
 Alner V. George, 718. 
 Althan (Lord) v. Anglesea (Lord), 410, 
 
 714. 
 Alves V. Bunbury, 399, 400. 
 Amey v. Long, 110, 112. 
 Amos V. Hughes, 585, 600. 
 Anderson v. Hamilton, 42, 192. 
 V. May, 500, 563. 
 V. Pitcher, 704, 706. 
 V. Shaw, 807. 
 V. Weston, 502, 521, 758. 
 Anderton v. Magawley, 408. 
 Andrews v. Askey, 240. 
 
 Andrews v. Beauchamp, 411. 
 V. Emmett, 688. 
 V. Marris, 436, 437. 
 Angell V. Angell, 427, 428. 
 Angle V. Alexander, 741. 
 Anglesea (Marquis of) v. Lord Hather- 
 
 ton, 187, 189, 619. 
 Angus V. Smith, 240. 
 Annesley v. Anglesea (Earl of), 252. 
 Anonymous, 256, 259, 277, 484, 564, 571, 
 
 675, 764. 
 Ansley v. Birch, 110. 
 Apothecaries' Company v. Bently, 590. 
 Appleton V. Braybrook (Lord), 259, 260, 
 
 265, 399, 400, 454. 
 Arden v. Tucker, 611. 
 Arding v. Flower, 113, 114. 
 Armit v. Breame, 666. 
 Armory v. Delamirie, 756, 818. 
 Armstrong v. Hewett, 290. 
 
 V. Lewis, 792, 793. 
 Arnold v. Bath and Wells (Bishop of), 
 
 309. 
 Arnott V. Redfern, 349. 
 Arundell v. Falmouth (Lord), 452. 
 
 V. White, 397. 
 Ashby V. Bates, 596, 601. 
 
 V. Power, 444. 
 Ashley's (Sir Anthony) case, 782. 
 Ashmore v. Hardy, 608. 
 Aslin V. Parkin, 327. 
 Astley V. Mills, 714. 
 Athlone Peerage, 300. 
 Atkins V. Drake, 291. 
 
 V. Hatton, 290, 293. 
 V. Humphreys, 413. 
 V. Meredith, 555, 557. 
 V. Owen, 500, 540. 
 V. Palmer, 424, 426. 
 V. Watson, 290. 
 Atkinson v. Carter, 557. 
 V. Warne, 598. 
 Attorney-General v. Bond, 220, 224, 228. 
 V. Bovett, 423. 
 V. Brazen Nose Col- 
 lege, 467. 
 V. Briant, 193. 
 V. Bulpit, 199, 200. 
 V. Davison, 418. 
 V. Donaldson, 739. 
 V. Foster, 697.
 
 XX 
 
 TABLE OF CASES. 
 
 Attorney-General v. Hitchcock, 114, 202, 
 (515. 
 «;.Hotham (Lord), 400. 
 V. King, 379. 
 V. Le Merchant, 555, 
 
 569. 
 V. Parker, 694, 697. 
 r. Plate Glass Com- 
 pany, 654, 700. 
 V. Randall, 719. 
 V. Reilly, 423. 
 V. Rogers, 802, 805. 
 V. Taylor, 268, 392. 
 V. Treakstone, 279. 
 V. AVarwick (Corpora- 
 tion), 455. 
 Attwood V. Small, 617. 
 Atty V. Parish, 657. 
 Augustein v. Challis, 729. 
 Austin V. Bewley, 738. 
 
 V. Chambers, 617. 
 V. Prince, 206. 
 V. Rumsey, 517. 
 Australasia (Bank of) v. Nias, 353, 358, 
 
 402. 
 Avery v. Hoole, 809. 
 Aveson v. Kinnaird (Lord), 88, 468. 
 Ayrey v. Davenport, 267, 391. 
 
 Baber v. Harris, 657. 
 Backhouse v. Jones, 619. 
 
 V. Middleton, 416. 
 Bagely v. Mollard, 687. 
 Bagot (Lord) v. Williams, 336. 
 Baikie i'. Chandless, 573. 
 Baildon v. Walton, 446, 787. 
 Bailey v. Bidwell, 504, 593. 
 
 V. Colverwell, 751. 
 
 V. Harris, 320, 373, 378. 
 Bain v. Mason, 299. 
 Bainbridge v. Wade, 709. 
 Baker i'. Dewey, 657. 
 
 V. Fairfax (Lord), 411. 
 
 V. Heard, 657. 
 
 V. Paine, 675, 676, 677. 
 
 V. Sweet, 430, 703. 
 Baker's case, 798. 
 Baldney v. Ritchie, 551, 553. 
 Baldwin v. Karver, 670. 
 Ball V. Dunsterville, 508. 
 Ball's case, 622. 
 Ballard v. Way, 275. 
 
 Banbury Peerage case, 421, 422,439,503. 
 Barbat z;. Allen, 142, 143, 790. 
 Barber v. Birch, 125. 
 
 V. Holmes, 299, 305. 
 V. Stead, 521. 
 Barclay's case, 404. 
 Barden i\ De Keverberg, 619. 
 Barford v. Nelson, 3 1 1 
 Baring v. Clagctt, 355. 
 
 V. Claggctt, 380, 382. 
 V. Royal Exchange Assurance 
 Company, 380. 381. 
 
 Barker v. Macrae, 122. 
 
 V. Ray, 465, 491. 
 Barley's case, 431. 
 Barnard v. Duthy, 627. 
 Barnard's case, 860. 
 Barne v. Whitmore, 444. 
 Barnes v. Lucas, 568. 
 
 V. Mawson, 67, 186, 188. 
 V. Ransom, 478. 
 V. Trompowski. 512. 
 V. Winckler, 350. 
 Barnstaple (Corporation of) v. Lathey, 
 
 456. 
 Barough v. W^hite, 492. 
 Barrett v. Wilson, 349. 
 Barrett Navigation (Company of Proprie- 
 tors of the) V. Shower, 740. 
 Barren v. Grillard, 442. 
 Barrs v. Jackson, 323, 338. 
 Barry v. Bebbington, 65, 477, 481. 
 Barrymore v. Taylor, 459, 580, 581. 
 Barstow v. Kivington, 679. 
 Banlett v. Gillard, 445, 579. 
 
 ('. Pickersgill, 332, 363, 364. 
 V. Purnell, 663. 
 V. Smith, 789. 
 Barton v. Bricknell. 370. 
 Barzillay v. Lewis, 380. 
 Baskerville v. Brown, 390. 
 Bastard v. Smith, 227, 423, 597, 602, 611. 
 Bastin v. Carew, 168. 
 Bate V. Kinsey, 563, 569. 
 Bateman v. Bailey, 467. 
 
 V. Phillips, 454, 565. 
 Bates V. Grabham, 661. 
 
 V. Wells, 591. 
 Bath (Earl of) v. Bathers.ea,415, 444, 589. 
 Bauerman v. Radenius, 127. 
 Baxter v. Pritchard, 784. 
 Bayham v. Guy's Hospital, 700. 
 Bayley v. Hole, 120. 
 
 V. Warden, 363. 
 V. Wylie, 289, 407, 408, 431. 
 Baylis i'. Attorney-General, 650. 
 
 V. Strickland, 469. 
 Bayley v. Snelham, 689. 
 Beachcroft v. Beachcroft, 689. 
 Beale v. Mouls, 615. 
 Beamon v. Ellice, 199, 200. 
 Beasley v. Magrath, 442. 
 Beauchamp v. Parry, 492. 
 Beaufort (Duke of) v. Smith, 275, 278, 
 
 288, 482. 
 Beaumont v. Fell, 685, 689, 693. 
 V. Field, 692. 
 
 V. Mountain, 275, 276, 277, 278. 
 Beaurain v. Scott (Sir W.), 393, 737. 
 Beck V. Beverly, 735. 
 
 V. Bree, 289. 
 Beckam v. Drake, 665, 721. 
 
 V. Osborne, 583. 
 Beckrow's case, 502. 
 Beckwith v. Bonner, 554. 
 V. Philliby, 781.
 
 TABLE OF CASES. 
 
 XXI 
 
 Beckwith v. Sydebotham, 174. 
 Becquet v. M'Carthy, 355, 357. 
 Bedell v. Russell, 597. 
 Bedell's case, 659. 
 Bedulph V. Ather, 387. 
 Beech v. Jones, 185. 
 BeechinjT v. Gower, 115, 145. 
 Beer v. Ward, 522, 523. 
 Belcher t). Drake, 135. 
 
 V. M'Intosh, 602. 
 Bell V. Banks, 130. 
 
 V. Chaytor, 566. 
 
 V. Harwood, 325. 
 
 V. Howard, 725. 
 
 V. Hull and Selbj^ Railway Company, 
 791. 
 
 V. Smith 119, 234, 
 
 V. Warden, 770, 773. 
 Bellamy's case, 759. 
 Bendyshe v. Pearse, 643. 
 Bendy's case, 448. 
 Bennett v. Coster, 452. 
 Bengough v. Walker, 671. 
 Bennett v. Hertford (Hund. of), 764. 
 Bennion v. Davison, 451, 592, 639. 
 Benson v. Olive, 330, 409, 410, 429, 444, 
 
 579. 
 Bent V. Baker, 118, 122, 136, 791. 
 Bentley v. Griffin, 785. 
 Berkeley Peerage case, 63, 190, 253, 421. 
 Bermon v. Woodbridge, 444, 583, 873. 
 Bernard (Lord) v. Saul, 274. 
 Bernardi v. Motteux, 381, 382. 
 Bernasconi v. Farebrother, 810. 
 «'. Fairbrother, 249. 
 Bernett v. Taylor, 512. 
 Berney v. Read, 399, 449, 505. 
 Berry v. Banner, 387. 
 Berryman v. Wise, 646. 
 Bertie v. Beaumont, 522, 523, 527. 
 
 V. Falkland, 669. 
 Berty v. Dormer, 587, 590. 
 Berwick-upon-Tweed (Mayor, &c., of) v. 
 
 Murray, 197. 
 Bessy v. Windham, 385, 389, 403, 436, 799. 
 Betsworth v. Betsworth, 375. 
 Bevan v. Williams, 758. 
 Beverley v. Cravin, 258, 408. 
 Bingham v. Stanley, 451, 592. 
 Birch V. Depeyster, 701, 703. 
 Bird V. Appleton, 382. 
 
 V. Randall, 344. 
 Bird's case, 403. 
 Birt V. Barlow, 288, 299, 302. 
 
 V. Leigh, 603. 
 
 V. Rothwell, 735, 736. 
 Bittleston v. Cooper, 559. 
 Black V. Braybrooke (Lord) 259, 260, 261, 
 
 295, 399, 737. 
 Blackham's case, 338, 376. 
 Blacquiere v. Hawkins, 736. 
 Blake v. Pilford, 42, 193. 
 Blakemore v. Glamorganshire Canal 
 Company, 326, 328, 332, 365. 
 
 Bland v. Ansley, 120. 
 
 Blankley v. Winstanley, 696, 697. 
 
 Blatch V. Archer, 846. 
 
 Bledstyn v. Sedgwick, 717. 
 
 Blewett V. Tregonning, 216, 232, 236, 
 
 Bligh V. Wellesly, 533. 
 
 Blinkhorne v. Feast, 670. 
 
 Blower v. Hollis, 268, 392, 393. 
 
 Blundell v. Howard, 286. 
 
 Blurton v. Toon, 521. 
 
 Bode's (Baron de) case, 175, 412, 429, 487. 
 
 Boehtlinck v. Schneider, 175. 
 
 Boilea v. Rutlin, 334, 392, 439, 450, 641. 
 
 Bold V. Rayner, 653, 705. 
 
 Bolton V. Gladstone, 380, 381, 382. 
 
 (Lord) V. Tomlin, 181, 650, 729. 
 Bonfield v. Smith, 599. 
 Bonner v. Wilkinson, 99. 
 Bonzi V. Stewart, 640. 
 Booth V. Cooke, 675. 
 V. Miln, 590. 
 
 V. Milns, 590, 598, 600, 605. 
 Bootle V. Blundell, 670. 
 Borthwick v. Caruthers, 591, 
 Botham v. Swingler, 144. 
 Bottings V. Firby, 342, 403. 
 Bottomley v. Forbes, 705. 
 Boucher v. Murray, 637. 
 Boulter v. Murray, 637. 
 V. Peplow, 506. 
 Bounty (case of the), 371. 
 Bourne v. Gatleflfe, 702. 
 
 V. Whitmore (Sir T.), 442. 
 Bowden v. Home, 336. 
 Bowles V. Langworthy, 419, 505. 
 
 V. Neale, 603. 
 Bowman v. Bowman, 169. 
 
 V. Horsey, 702. 
 
 V. Rostron, 343, 345. 
 
 V. Taylor, 659. 
 Boxer v. Rabeth, 511, 518, 530. 
 Boydell v. Drummond, 650. 
 Boyle V. Boyle, 361. 
 Boys V. Williams, 688, 689. 
 Bradley v. Eyre, 402. 
 
 V. Ricardo, 245. 
 V. Urquhart, 402. 
 Bradshaw v. Bennett, 566. 
 V. Murphy, 205. 
 Bradwin v. Harper, 684, 690. 
 Brady v. Cubitt, 715. 
 Brain v. Preece, 64, 498. 
 Braine v. Dew, 188. 
 Bramston v. Robins, 718. 
 Brandao v. Barnett, 736. 
 Brandford v. Freeman, 596. 
 Brashier v. Jackson, 637. 
 Brazier's case, 117, 254, 469. 
 Bree v. Beck, 285. 
 Breedon v. Gill, 254, 417, 435. 
 Breeze v. Hawker, 308. 
 Breton v. Cope, 269, 309, 456, 504, 507. 
 Brett V. Beales, 188, 275, 276, 278, 455, 
 529.
 
 XXll 
 
 TABLE OF CASES. 
 
 Brett, w. Ward, 294. 
 Brewer v. Palmer, 656. 
 Brewster v. Sewell, 538. 
 Brickell v. Hulse, 413. 
 Bridges v. Fisher, 423. 
 
 V. Hawkes, 819. 
 Bridgman v. Holt, 795. 
 
 V. Jennings, 473. 
 Briggs V. Aynsworth, 609. 
 Bright V. Eynon, 798. 
 Bringloe v. Goodson, 178, 511. 
 Brindley v. Woodhouse, 545. 
 Brisco V. Lomax, 49, 186, 408, 619, 721. 
 Briscoe v. Stephens, 359. 
 Bristol (Governors of Poor of) v. Wait, 
 
 539. 
 Bristow V. Sequeville, 176. 
 Bristowe v. Faircloiigh, 334. 
 Brittain v. Kinnaird, 321. 
 Brockbank v. Anderson, 144. 
 Brodie v. St. Paul, 650. 
 Bromfield i\ Jones, 626. 
 Brook V. Carpenter, 328. 
 V. Middleton, 805. 
 Brooks V. Warwick, 781. 
 Brough V. Parkings, 738. 
 
 V. Perkins, 738. 
 Broughton v. Randall, 737. 
 Brounker (Lord) v. Atkins (Sir R.), 330. 
 Brown v. Brown, 120, 128. 
 
 V. Bullen, 348, 379, 401. 
 
 V. Capel, 308. 
 
 V. Fox, -130. 
 
 V. Giles, 237. 
 
 V. Langley 660, 670, 689. 
 
 V. M'Kinnally, 348. 
 
 V. Murray, 606, 609. 
 
 V. Philpot, 592. 
 
 V. Ricks, 736. 
 
 V. Selwin, 668, 670. 
 
 V. Thompson, 715, 738. 
 
 V. Thornton, 295. 
 
 V. Woodman, 542, 543, 544. 
 
 V. Wootton, 342. 
 Brown's case, 419, 421. 
 Brownsword v. Edwards, 204, 364. 
 Bruce v. Hurley, 467. 
 
 V. Wait, 358, 402. 
 Bruin v. Knott, 736. 
 Brune v. Thompson, 483. 
 Bryan v. WagstalF, 555. 
 Buchanan v. Kinning, 640. 
 
 V. Ruckcr, 349, 354, 355, 399, 
 402, 740. 
 Buckhouse v. Crosljy, 725. 
 Buckinghamshire (Karl of) v. Ilobart, 
 
 714. 
 Buckler V. .Millcrd, 652. 
 Buckley v. Smith, 513. 
 Buckmaster v. Ilarrop, C64. 
 Bulkeley v. Butler, 791, 794, 797. 
 Bullen V. Michel, 285, 309, 523, 528, 546, 
 
 549, 579, 792. 
 Bunbury v. Matthews, 646, 740. 
 
 Bunter v. Warre, 143. 
 Bunting v. Lepingwell, 375. 
 Burdett v. Colman, 77. 
 Burdon v. Ricketts, 316, 364. 
 Burgess v. Langley, 805. 
 Burgess's case, 678. 
 Burghert v. Angerstein, 299. 
 Burkitt V. Blanshard, 450, 641. 
 Burleigh v. Stibbs, 508, 564, 578. 
 Burley v. Bethune, 763. 
 Burnand v. Nerot, 261, 295. 
 Burnett v. Lynch, 508, 544, 566. 
 Burrell v. Nicholson, 59(;, 599. 
 Burridge s. Essex (Earl of^, 406. 
 Burrough v. Martin, 180, 306. 
 Burrows v. Jemino, 352, 380, 381. 
 V. Lock, 511. 
 V. Unwin, 764. 
 Burt V. Walker, 412, 514, 515. 
 Burton v. Griffiths, 780. 
 V. Hinde, 131. 
 V. Payne, 553. 
 V. Plummer, 180, 183, 184. 
 Bushell's case, 368. 
 Butcher v. Jarrat, 561. 
 
 V. Stewart, 709. 
 Butcher and Alworth's case, 257. 
 Butcher's Company v. Jones, 144. 
 Butler V. AUnut, 541. 
 
 V. Carver and others, 226. 
 
 V. Dorant, 807. 
 
 V. Ford, 646, 647. 
 
 V. Moore, 40. 
 Butler's case, 562, 591, 594. 
 Buxton V. Cornish, 656. 
 V. Mingay, 771. 
 Byam v. Booth, 430, 431. 
 Byrne v. Harvey, 455, 557. 
 Bywater v. Richardson, 655, 708. 
 
 Cadby v. Martinez, 359. 
 
 V. Barlow, 622. 
 Calcraft v. Gibbs, 801. 
 Calder v. Rutherford, 585. 
 Call V. Dunning, 505. 
 Callander v. Dittrich, 334, 358. 
 Calliard v. Vaughan, 423. 
 Callow V. Hawle, 442. 
 Calvert v. Bovill, 355, 381, 382. 
 
 V. Canterbury (Archbishop of), 
 
 494. 
 V. Flower, 221. 224, 561. 
 Camden, v. Anderson, 310. 
 Cameron v. Lightfoot, 449. 
 V. Reynolds, 342. 
 Campbell v. Hodgson, 660. 
 V. Rickards, 176. 
 Fz parte, 418. 
 Campbell's case, 789. 
 Candell v. London, 781. 
 Cannam v. Farmer, 590, 598. 
 Cannell v. Curtis, 046, 647. 
 Careless v. Careless, 679, 686. 
 Carlile v. Eady, 143.
 
 TABLE OF CASES. 
 
 XXlll 
 
 Carlisle (Mayor of), v. Blamire, 564. 
 
 Carnaby v. W^elby, 640. 
 
 Carnarvon (Lord) v. Villebois, 189, 278, 
 
 287, 387, 453, 677, 759. 
 Came v. Nicholl, 471. 
 Carol V. Jeans, 644. 
 Carpenter v. Buller, 461, 659. 
 
 V. Wall, 203, 214, 242. 
 Carr v. Burdis, 565, 566, 568. 
 V. Heaton, 330. 
 V. Mostyn, 189, 287. 
 Carruthers v. Graham and others, 429. 
 
 V. Sheddon, 692. 
 Carstairs v. Stein, 804. 
 Carter v. Boehm, 176. 
 V. Downish, 736. 
 V. James, 333, 340, 640. 
 V. Jones, 597. 
 V. Pearce, 119. 
 V. Pryke, 618. 
 Cartwright v. Green, 204. 
 
 V. Vawdry, 687. 
 Gary v. Abbott, 673. 
 
 V. Pitt, 174. 
 Castleton v. Turner, 668, 670. 
 Gates V. Hardacre, 204. 
 
 V. Winter, 551, 555. 
 Catherwood v. Chabaud, 585, 590. 
 Gator V. Stokes, 437. 
 Catt w. Howard, 181, 580. 
 Catteris w. Cowper, 817. 
 Cattlin V. Barker, 216. 
 Cavan v. Stewart, 356, 399, 402. 
 Gave V. Mountain, 321, 369, 781. 
 Gazenove v. Vaughan, 419, 420, 421. 
 .Chad V. Tilsed, 697. 
 Chadwick ii. Bunting, 457. 
 Chambers v. Bernasconi, 419, 496. 
 V. Calfield, 804. 
 V. Robinson, 266, 449, 622. 
 Champion v. Atkinson, 118, 619. 
 Ghampneys v. Peck, 494, 495. 
 Chandler v. Home, 199. 
 Ghaney v. Payne, 398. 
 Chanter v. Lesse, 100. 
 Chapman v. Cowlan, 187, 290, 453. 
 V. Emden, 599. 
 V. Graves, 128. 
 V. Pointon, 103, 104. 
 V. Rawson, 602. 
 V. Smith, 285. 
 V. Walton, 176. 
 Chappell V. Purday, 431, 444. 
 Charlton v. Gibson, 702. 
 Ghaurand v. Angerstein, 174, 701, 706. 
 Chelsea Waterworks (Governor of) v. 
 
 Cowper, 522. 
 Cherry v. Hemming, 509. 
 Chettle V. Pound, 260, 523. 
 Chetwynd v. Lindon, 204. 
 Cheyue v, Koops, 120. 
 Gheyney's (Lord) case, 655, 669, 679. 
 Chichester v. Phillips, 793. 
 Christian v. Herwood, 142. 
 
 Christie v. Secretan, 381. 
 
 Christy v. Tancred, 330. 
 
 Chuck V. Freen, 722. 
 
 Churchill (Lord) v. Hunt, 626. 
 
 Clauricard's case, 294. 
 
 Charges v. Sherwin, 222, 337, 408, 415. 
 
 Clark V. Bell, 135. 
 
 V. Dunsford, 809. 
 V. Mullick, 740. 
 Clarke, Iti re, 737. 
 
 V. East India Company, 424. 
 
 V. Lucas, 126. 
 
 V. Savery, 168, 169. 
 
 V. Wilmot, 475. 
 Clarkson v. Hanway, 674. 
 
 V. Woodhouse, 95, 523. 
 Clay V. Stephenson, 426. , 
 Clayton v. Gregson, 653, 705, 707. 
 V. Lord Nugent, 650, 663. 
 Cleave v. Jones, 554, 614, 789. 
 Clegg V. Levy, 175. 
 Clements v. Scudamore, 736. 
 Clerk V. Bedford, 493. 
 Cleve V. Powell, 329, 337, 361. 
 Cliff w. Gibbons, 666. 
 Clifford V. Hunter, 196. 
 V. Parker, 500. 
 V. Turrell, 660, 674. 
 Clifton V. Walrasley, 652, 701. 
 Clinant ». Cooke, 725. 
 Clinton v. Hooper, 706, 712, 714. 
 Clothier v. Chapman, 49, 187. 
 Cobbett V. Grey, 436, 446. 
 Cochran v. Retberg, 701,'704. 
 Cochrane's (Lord) case, 213. 
 Cock V. Gent, 276. 
 Coekman v. Mather, 314. 
 Cocks V. Nash, 541, 544. 
 Cocksedge v. Fanshaw, 797. 
 Coe V. Westernham, 394. 
 Coghlan v. Williamson, 513,519. 
 Coker v. Farewell, 409. 
 Colburn v. Dawson, 709. 
 Cole V. Rawlinson, 669. 
 Coleman v. Gibson, 780. 
 Coles, Ex parte, 418. 
 Collett V. Keith (Lord), 581, 677. 
 Collier v. Clark, 601. 
 
 V. Nokes, 228, 738. 
 
 V. Simpson, 176. 
 Collins V. Bayntun, 568. 
 
 V. Blantern, 100, 675. 
 
 V. Carnegie, 457, 647, 740. 
 
 V. Maule, 545. 
 Colling V. Treweek, 558, 561, 563. 
 Colombine v. Penhall, 136. 
 Colpoys V. Colpoys, 653, 689. 
 Colt V. Button, 30, 31. 
 Combe v. Pitte, 626, 627. 
 Compagnon v. Martin, 626. 
 Comptou «'. Chandless, 576. 
 Connop V. Hayward, 579. 
 Cooch V. Goodman, 508. 
 Cood V. Cood, 297.
 
 XXIV 
 
 TABLE OF CASES. 
 
 Cook V. Field, 363. 
 Cooke V. Bankes, 186, 304. 
 V. Blake, 640. 
 V. Booth, 700. 
 V. Fountain, 412, 415. 
 V. Lloyd, 299. 
 V. Loxley, 762. 
 
 V. Maxwell, 42, 192, 256, 267, 644. 
 V. Nethercote, 199. 
 V. Riddelieu, 712. 
 V. Sholl, 345, 379. 
 V. Stocks, 565. 
 V. Tanswell, 542, 570, 571. 
 Cooke's case, 207, 208. 
 Coombs V. Coether, 186, 283, 309. 
 Cooper V. Gibbons, 569, 749. 
 V. Smith, 582. 
 V. South, 310. 
 ?). Wakley, 597. 
 Coote V. Boyd, 714. 
 Cope V. Bedford, 294. 
 V. Cope, 299. 
 
 V. Thames Haven Dock Company, 
 228, 609. 
 Copeland v. Stanton, 420. 
 
 V. Watts, 112, 748. 
 Copeland v. Toulmin, 617. 
 Corbet v. Corbet, 411, 431, 432. 
 Corfield v. Parsons, 789. 
 Cornfoot v. Fowke, 678. 
 Corsar v. Reed, 791, 807. 
 Corsen v. Dubois, 112. 
 Cort V. Birkbeck, 386, 421, 798. 
 
 V. St. David's (Bishop of), 791. 
 Cossens, Ux parte, re Worrall, 205. 
 Cotton V. James, 95, 597. 
 Couch V. Goodman, 740. 
 Coule V. Braham, 486. 
 Couling V. Coxe, 639. 
 Courteen v. Touse, 169. 
 Cowan V. Braidwood, 354, 358. 
 Cowling V. Ely, 442. 
 CowHshaw v. Cheslyn, 640. 
 Cowper's case, 863. 
 Cox V. Allingham, 395. 
 V. Glue, 699. 
 V. Kitchen, 802, 
 V. Keid, 782. 
 Coxe V. Wirrall, 781. 
 Cragg V. Norfolk, 577, 578. 
 Craig V. Fenn, 601. 
 Crank v. Frith, 512. 
 
 Crawford k Lindsay Peerage case, 543, 549. 
 Crease t'. Barrett, 145, 189, 190,444,480. 
 
 485, 800. 
 Crepps V. Durden, 309, 401. 
 Crerer v. Sodo, G13. 
 Cripps V. Yates, 598. 
 CrLsp V. Anderson, 541, 509. 
 Croanc v. Odell, 689. 
 Crokatt v. .Jones, 2;'5. 
 Crook V. Dowling, 266. 
 Crooke v. Dowling, 447. 
 Crosby v. Iletheringlon, 736. 
 
 Crosby v. Leng, 401. 
 
 V. Percy, 514, 517. 
 Cross V. Eglin, 706. 
 V. Salter, 385. 
 Crotty V. Price, 796. 
 Croughton v. Blake, 292, 293, 386, 524. 
 Crowley v. Page, 240, 241, 612. 
 Crowther v. Solomons, 541, 570. 
 Croydon Hospital v. Farley, 510. 
 Crozer v. Pilling, 763. 
 CuflFr. Penn, 663, 725. 
 Culley V. Taylerson, 793. 
 Cundell v. Pratt, 412. 
 Cunliffe v. Sefton, 514, 516, 518, 519, 
 
 521. 
 Curling v. Robertson, 311. 
 Currie v. Child, 512. 
 Curry v. Walter, 194. 
 Curtis V. Greated, 731. 
 
 V. Wheeler, 585, 605. 
 Cussons V. Skinner, 504, 517, 529. 
 Cuthbert v. Peacock, 713. 
 Cutter V. Powell, 704. 
 
 Da Costa v. Villa Real, 325, 349, 360, 
 
 375. 
 Dacy V. Clinch, 435. 
 D'Aguilar v. Tobin, 802. 
 Daintree v. Brocklehurst, 591. 
 
 V. Hutchinson, 710. 
 Dalby f. Hirst, 711. 
 Dalgleish v. Hodgson, 382. 
 Dalison v. Stark, 656, 729, 731. 
 Dalrymple v. Dalrymple, 175. 
 Dandridge v. Corden, 204. 
 Dane v. Kirkwell (Lady), 406. 
 Darbishire v. Parker, 776, 777, 780. 
 Darrose v. Newbott, 798. 
 Dartmouth (Countess of )i>. Roberts, 441, 
 
 443, 447. 
 Daintnall v. Howard, 447, 448. 
 Davenport v. Tyrrell, 796. 
 Davidson v. Cooper, 501. 
 Davies v. Davies, 220, 227, 261, 388, 423, 
 448. 
 V. Humphreys, 476. 
 V. Lewis, 187. 
 f. Lowndes, 321, 322, 439, 738, 
 
 792, 794, 795. 
 V. Morgan, 422, 503. 
 V. Pearce, 488. 
 V. Waters, 112. 
 V. Williams, 688. 
 Davis V. Capper, 781. 
 V. Dale, 196. 
 V. Dinwoody, 138. 
 V. Lloyd, 300, 498. 
 V Morgan, 188, 131. 
 V. Russell, 782. 
 V. Spurling, 444. 
 V. West, 328, 379. 
 V. Williams, 394. 
 Payroll v. Glasscock, 610. 
 Decan v. Fuller, 539.
 
 TABLE OF CASES. 
 
 XXV 
 
 Deady v. Harrison, 441. 
 
 De Beranger's case, 167. 
 
 Debeze v. Man, 714. 
 
 De Fleming (Lady) v. Simpson, 122. 
 
 Delamotte v. Lane, G19. 
 
 Delamotte's case, 238. 
 
 Deluney v. Mitcliell, 606. 
 
 De Medina v. Grove, 348. 
 
 Denn v. Barnard, 394. 
 
 V. Fulford, 261, 266. 
 V. Roalvc, 688. 
 V. Spray, 453. 
 V. Pnrvis, 628. 
 Derby's (Lord) case, 405. 
 De Rome Fairlie. SeeDe Rosne y. Fairlie. 
 De Rosne v. Fairlie, 118, 145. 
 De Rutzen (Baron) v. Farr, 482, 497, 800, 
 
 801. 
 De Sailly v. Morgan, 238. 
 De Symonds v. De la Cour, 122. 
 Devon v. Jones, 439. 
 Dew V. Clarke, 428. 
 Dewar v. Purdy, 806, 809. 
 Dewdney v. Palmer, 145. 
 Deybel's case, 738. 
 Dicas V. Lord Brougham, 369, 737. 
 Dickinson v. Shee, 168, 198. 
 Dickson V. Evans, 590. 
 V. Fisher, 672. 
 V. Lodge, 464. 
 Digby V. Atkinson, 761. 
 V. Stedman, 493. 
 Dillon V. Harpur, 737. 
 V. Parker, 796. 
 Dimes v. Grand Junction Canal Co., 343. 
 D'Israeli v. Jewett, 305. 
 Ditchburn v. Spracklin, 310. 
 Dixon V. Vale, 206. 
 Dobson V. Bell, 737, 738. 
 Dodd V. Norris, 205. 
 Dodsworth v. Anderson, 771. 
 Doe V. Allen, 672, 783. 
 
 V. Amej^, 761. 
 
 d. Arundel v. Fowler, 299. 
 
 V. Ashley, 688, 692. 
 
 d. Askew v. Askew, 308. 
 
 d. Bacons v. Brydges, 276, 326. 
 
 V. Barnes, 299, 604, 647. 
 
 d. Barrett v. Kempt, 620. 
 
 d. Bather v. Brayne, 506, 605, 610. 
 
 d. Beach v. Jersej' (Earl of), 691. 
 
 V. Beckett, 488. 
 
 d. Bengo v. Nicholls, 136. 
 
 V. Benjamin, 802. 
 
 d. Bennington v. Hall, 454. 
 
 V. Benson, 713. 
 
 V. Beviss, 696, 699. 
 
 V. Beyon, 522, 525, 684. 
 
 V. Bingham, 132,501,502,503,577,595. 
 
 V. Bingham v. Cartvvright, 729. 
 
 V. Bird, 505. 
 
 d. Bland ». Smith, 436. 
 
 d. Blayney v. Savage, 297, 488. 
 
 V. Bluck, 360. 
 
 Doe d. Codenham v. Colcombc, 483. 
 V. Bowdlier v. Owen, 525. 
 V. Bower, 688. 
 V. Bray, 298, 604. 
 d. Bridger v. Whitehead, 588. 
 d. Brown «. Brown, 667, 693. 
 V. Brown, 646. 
 V. Burdett, 523. 
 V. Burt, 691. 
 V. Burton, 475. 
 
 V. Cartwright, 313, 481, 656, 731. 
 d. Chandler v. Ford, 100. 
 d. Chichester v. Oxenden, 692. 
 V. Clarke, 118. 
 V. Cleveland (Marquis), 565. 
 d. Clifford, 577. 
 d. Cockell, 571. 
 V. Cole, 648. 
 
 d. Corbett v. Corbett, 549. 
 d. Counsell v. Caperton, 610. 
 d. Coyle v. Cole, 543. 
 d. Croyden (Churchwardens of) v. 
 
 Cook, 454. 
 d. Daniel v. Coulthred, 471, '487. 
 V. Date, 204, 214. 
 V. Davis, 754. 
 d. Davies v. Davies, 511. 
 W.Derby (Earl of), 328, 329, 409, 
 
 558. 
 V. Dobell, 761. 
 V. Dring, 669. 
 V. Durnford, 504, 507. 
 V. Egremont (Earl of), 204. 
 d. Egremont (Earl of) «. Date, 111. 
 d. Egremont v. Pulmau, 565. 
 d. Egremont (Bank of) v. Chambers, 
 
 504. 
 V. Errington, 331. 
 V. Evans, 518, 760. 
 d. Flemington v. Somerton, 558. 
 d. Foster v. Sisson, 188, 189. 
 d. Foster v. Williams, 132. 
 V. Freeman, 454, 455. 
 V. Fyldes, 669, 671. 
 d. Grains v. Rouse, 684, 686. 
 d. Gallop V. Vowles, 475. 
 V. Galloway, 692. 
 d. Garrod v. Oley, 454. 
 V. Gartham, 403. 
 V. Gatacre, 299. 
 d. Gilbert v. Ross, 413, 430, 503, 540, 
 
 544. 
 d. Gord V. Needs, 670, 681. 
 V. Gore, 757, 760. 
 V. Gosely, 607. 
 d. Graham, v. Hawkins, 482. 
 V. Grazebrook, 531, 590. 
 V. Green, 489. 
 V. Gunning, 394. 
 V. Guy, 557. 
 V. Haddon, 371. 
 V. Harcourt, 287. 
 V. Hawthorn, 595. 
 V. Hellier, 453.
 
 XXVI 
 
 TABLE OF CASES. 
 
 Doe V. Heming, 567. 
 
 V. Hiscocks, 650, 655, 680, 681, 685, 
 
 690, 691. 
 d. Hogg V. Tindale, 615. 
 V. Home, 460. 
 V. Hubbard, 686, 688, 694. 
 V. Huddart, 327, 545. 
 d. Human v. Pettett, 471. 
 V. Huthwaite, 690. 
 V. Jackson, 628. 
 d. Jenkins v. Davies, 19, 190, 788, 
 
 789. 
 V. Jersey (Earl of), 794. 
 V. Johnson, 688. 
 d. Johnson v. Johnson, 514. 
 V. Keeling, 292, 525, 526. 
 V. Kempt, 790. 
 V. Kilner, 545, 575. 
 d. Kinglake v. Beviss, 480. 
 d. Knight v. Nepean, 77, 761. 
 V. Lakin, 290, 473. 
 V. Langton, 713. 
 d. Lawrence v. Shawcross, 808. 
 V. Lea, 659. 
 
 V. Lewis, 491, 531, 696, 604. 
 d. Linsey v. Edwards, 490. 
 V. Lloyd, 261, 299. 
 V. Loscombe i'. Clifford, 111, 505, 
 
 545. 
 V. Lyford, 693. 
 v. Manning, 784. 
 V. Martin, 555, 689. 
 V. Mason, 453, 577, 758. 
 V. Mee, 455. 
 V. Mobbs, 608. 
 d. Moore v. Williams, 544. 
 V. Morgan, 694. 
 V. Morris, 551, 564. 
 V. Munro, 673. 
 V. Nepean, 593. 
 d. Nepean v. Budden, 100. 
 d. Norton v. Webster, 143, 791. 
 d. Oldham v. Wolley, 521, 761. 
 d. Orrel v. Mado.x, 299. 
 V. Owen, 540. 
 
 d. 0.xenden v. Chichester, 671, 693. 
 d. Padwick v. Skinner, 498. 
 V. Palmer, 761. 
 d. Patteshall v. Turford, 495. 
 V. Paul, 513. 
 
 d. Pearson v. Ries, 551, 553. 
 V. Penry, 800. 
 
 V. Perkins, 180, 183, 184, 185. 
 V. Perratt, 687. 
 d. Perry v. Newlor, 202. 
 V. Phillips, 292, 525, 526. 
 d. Phillips V. Evans, 757. 
 V. Powell, 514. 
 V. Pulman, 508, 524, 577. 
 V. Rawlins, 477. 
 d. Richards v. Lewis, 534, 553. 
 d. Richardson v. Watson, CSS. 
 V. Rickarby, 471. 
 V. Ries, 562. 
 
 Doe d. Roberts v. Roberts, 796. 
 V. Robson, 465, 475. 
 V. Ross, 540, 542. 
 V. Rosser, 349, 399. 
 d. Rowlandson v. Wainwright, 544. 
 V. Samples, 525. 
 V. Sandham, 774. 
 V. Seaton, 313 
 
 d. Shallcross v. Palmer, 684. 
 d. Shearwood v. Pearson, 731. 
 V. Sisson, 619. 
 d. Small V. Allen, 672. 
 V. Smart, 604. 
 V. Smith. 772. 
 V. Spence, 777. 
 d. Spencer v. Beckett, 489. 
 d. Spicer v. Lea, 708. 
 d. Spilsbury v. Burdett, 521. 
 V. Spitty, 556. 
 V. Stacy, 482. 
 
 d. Stansbury v. Arkwright, 314. 
 d. Stephenson v. Walker, 252. 
 V. Stillwell, 758. 
 
 Strode v'. Seaton, 327, 343. 
 
 Sturt V. Mobb's, 482. 
 
 Suckermore, 174. 
 
 Sybourn, 439. 
 
 Taniere, 761. 
 
 Tatham v. Cattermore, 501. 
 
 Tatham v. Wright, 53, 89, 162, 
 
 340, 403. 
 Templeton v. Martin, 688. 
 Teynhara (Lord) v. Tyler, 800. 
 Thomas, 48, 190. 
 Thompson v. Hodgson, 571. 
 Thynne, 483. 
 Trapaud, 542. 
 Tucker, 604. 
 Tyler, 327. 
 Ulph, 666. 
 Wainwright, 491, 508, 543, 568, 
 
 642. 
 Walker v. Scephenson, 252, 253, 
 
 512. 
 Wartney v. Grey, 113, 563. 
 Waterton, 577. 
 Webber, 329, 492. 
 Webster, 657, 592. 
 Wellard v. Hawthorn, 673. 
 V. Wellsman, 327. 
 V. Westlake, 654, 688, 692. 
 d. Wetherell «>. Bird, 573. 
 d. Wheeldon v. Paul, 519, 520. 
 V. Whitefoot, 542. 
 V. Wilde, 132. 
 V. Wilford, 691. 
 V. Wilkins, 567. 
 d. William IV. (King) v. Roberts, 
 
 270, 283, 287. 
 V. Williams, 487, 489. 
 (/. Williams v. Lloyd, 100, 295, 577. 
 d. Willis V. Birchmore, 132. 
 V. Wilson, 785. 
 d. Winnell v. Broad, 617. 
 
 d. 
 
 d.
 
 TABLE OF CASES. 
 
 XXVll 
 
 Doe V. Wolley, 523. 
 
 V. Wood, 2GG. 
 
 d. Wood V. Morris, 731. 
 
 d. Wood V. Wilkins, 303. 
 
 d. Woodmas v. Mason, 259, 739. 
 
 d. Worcester School (Trustees of) v. 
 Rowlands, 602. 
 
 V. Wright, 327, 433, 475. 
 Donn V. Lippman, 358. 
 Donaldson v. Foster, 707. 
 
 V. Thompson, 380, 382. 
 Doncaster (Mayor of) v. Day, 191, 409, 
 
 433. 
 Donnison v. Elsely, 187. 
 Doran's case, 33, 507. 
 Douglas V. Forrest, 349, 356, 357. 
 
 Peerage case, 847, 899. 
 Downes v. Moreman, 269. 
 Dowsett V. Sweet, 686, 690, 693. 
 Doxon V. Haigh, 543, 565, 570. 
 Drable v. Donner, 558. 
 Drake v. Marryat, 295. 
 
 V. Smyth, 290, 302. 
 Drakeford v. Hodges, 661. 
 Draper v. Garratt, 626, 629. 
 Dresser v. Clarke, 128 
 Drew V. Durnbough, 553. 
 Drinkwater v. Porter, 187, 188. 
 Driver v. Thompson, 808. 
 Druce v. Dennison, 688. 
 Drummond v. x\ttorney-General, 653. 
 Du Barre v. Livette, 40. 
 Duberley v. Gunning, 804. 
 Du Best V. Beresford, 43. 
 Ducker v. Wood, 804. 
 Dufferin and Clandeboy's (Lord) claim, 
 
 738. 
 Dufterin's (Lord) case, 282. 
 Duins V. Donovan, 299, 300. 
 Dunbar v. Harvie, 296. 
 
 V. Roxburghe (Duchess), 699. 
 Duncan v. Scott, 433. 
 Dunford v. Trattles, 639. 
 Dunn V. Aslett, 236, 249. 
 V. Fulford, 432. 
 V. Murray, 335. 
 Dunn's case, 622. 
 
 Dunraven (Lord) v. Llewellyn, 187, 190. 
 Dunstan v. Tresider, 639, 641. 
 Dupays v. Shepherd, 279. 
 Durham (Bishop of) v. Beaumont, 252. 
 Dutton V. Colt, 419. 
 Dutton's case, 420, 421, 430. 
 Dyson v. Wood, 396. 
 Dwyer v. Collins, 564. 
 
 Earl V. Lewis, 290, 291, 292, 526. 
 
 East V. Chapman, 206, 214. 
 
 Eastern Union Railway Company v. 
 
 Symonds, 552. 
 Eastmure v. Laws, 336, 337. 
 Easton v. Pratchett, 592. 
 Eaton V. Southby, 769. 
 Eccleston v. Petty, 442, 569. 
 
 Eden v. Blake, 656. 
 
 V. Chalkill, 574. 
 Edger v. Knapp, 802. 
 Edie V. East India Company, 702. 
 Edinburgh v. Crudell, 507. 
 Edmonds v. Challis and others, 571. 
 V. Groves, 592. 
 V. Lowe, 121. 
 V. Rowe, 31. 
 V. Walker, 169. 
 V. Walter, 243. 
 Edmondson v. Machell, 800. 
 Edmondstone v. Webb, 643. 
 
 V. Plaisted, 438. 
 Edmunds v. Downes, 721. 
 V. Groves, -^51. 
 Edwards v. Cooper, 656. 
 
 V. Evans, 145, 801. 
 V. Jevons, 709. 
 V. Matthews, 596. 
 V. Sherratt, 605. 
 Egremont (Earl of) v. Saul, 799. 
 Ehrensperger v. Anderson, 558. 
 Ekins V. Macklish, 703. 
 Eiden v. Keddell, 394. 
 Elkin V. Janson, 588. 
 Elliott V. South Devon Railway Company, 
 
 799. 
 Ellis V. Abrahams, 617. 
 
 V. Watson, 311. 
 Ellison V. Cookson, 714. 
 
 V. Isles, 617. 
 Elston V. Wood, 442. 
 Elton V. Larkins, 202, 505, 573. 
 Ely (Dean, &c.) v. Caldecott, 480. 
 
 (Dean of) v. Stewart, 522, 523, 525. 
 Emden's case, 448. 
 Enfield v. Hills, 796. 
 England v. Bourke, 363, 385. 
 Engstrom v. Brightman, 766. 
 Entick V. Carrington, 569. 
 Erskine v. Murray, 736. 
 Estwick V. Caillaud, 784. 
 Evans v. Birch, 590. 
 V. Curtis, 516. 
 V. Getting, 315. 
 V. Ogilvie, 639. 
 V. Pratt, 705. 
 
 V. Rees, 186, 292, 386, 525. 
 V. Sweet, 554. 
 
 V. Taylor, 288, 289, 407, 408. 
 V. Williams, 122. 
 V. Yeatherd, 120. 
 Everett V. Lowdham, 199. 
 
 V. Youells, 335, 805, 806. 
 Everingham v. Roundell, 543. 
 Everth v. Hannam, 381. 
 Ewbank v. Nutting, 615. 
 Ewer V. Ambrose, 227, 245, 249, 251, 423, 
 
 432, 441, 447, 448. 
 Exeter (Marquis of) v. Exeter (Marchion- 
 ess of), 676. 
 (Mayor of) i'. Warren, 484. 
 Ux parte Byne, 113, 114.
 
 XXVlll 
 
 TABLE OF CASES. 
 
 Ex parte Lyne, 114. 
 
 Roscoe, 103. 
 
 Tillotson, 104. 
 Ej're V. Palsgrave, 270. 
 
 Fabrigas v. Mostyn, 795. 
 Facey v. Hurdom. 774. 
 Fachina v. Sabine, 29, 31. 
 Fagan v. Dawson, 388. 
 Fairtitle d. Mytton v. Gilbert, 100. 
 Faith V. M'Intyre, 124, 613. 
 Falconer v. Hanson, 412, 580. 
 Falmouth (Earl of) v. Moss, 112, 569. 
 (Lord) V. Roberts, 501, 517. 
 Fassett v. Brown, 518, 529, 530, 
 Faulder v. Silk, 380, 406. 
 Fazakerley v. Wilt'shire, 738. 
 Fern v. Filica, 641. 
 Fellingham v. Sparrow, 115. 145. 
 Fenn v. Granger, 131. 
 
 V. Griffith, 651, 656, 731. 
 V. Johnson, 604, 610. 
 Fennell i'. Tait, 105. 
 Fenner v. Mears, 657. 
 Fentum v. Pocock, 660. 
 Fenwick v. Bell, 175. 
 
 V. Reed, 522. 
 Fenwick's (Sir John) case, 35. 
 Ferguson v. Mahon, 353, 356, 402. 
 Feme d. Pewtress v. Granger, 132. 
 Fernley v. Worthington, 439, 539. 
 Ferrand v. Milligan, 802. 
 Ferrers v. Arden, 323. 
 
 V. Wignal, 759. 
 Field V. Beaumont, 110, 112. 
 
 V. Woods, 614. 
 Fielder v. Ray, 731. 
 Filmer v. Gott, 673. 
 Finch V. Finch, 204. 
 Finney v. Finney, 658, 666. 
 Firkin v. Edwards, 556. 
 Fisher v. Kitchinghman, 267, 390. 
 V. Lane, 358, 396, 397. 
 V. Ogle, 381, 382. 
 Fishmongers' Company v. Dimsdale and 
 
 others, 506. 
 Fitz V. Rabbits, 531. 
 Fitzgerald v. Elsee, 511, 518, 530. 
 V. Enstace, 577. 
 V. Fauconberge, 667. 
 V. Fitzgeralil, 573. 
 Fitzwalter's (Lord) case, 547. 
 Flad Oyen case (Tiie), 382. 
 Fletcher v. Braddyll, 174. 
 
 V. Grosbie, 616. 
 
 V. Froggatt, 582. 
 
 V. Gillespie, 716. 
 
 V. Greenwell, 131. 
 Flindt V. Atkins, 399. 
 Flower v. V'oung, 310, 311. 
 Folkes V. Chadd, 173, 174. 
 Fonnereau v. Poyntz, 686. 
 Fonsick v. Agar, 412. 
 Forbes v. Wale, 524. 
 
 Ford V. Elliott, 623. 
 
 V. Grey (Lord) 441, 577. 
 V. Hopkins, 703. 
 V. Yates, 665. 
 Fordyce v. Willis, 721. 
 Forman v. Dawes, 275. 
 Forrester v. Pigou, 118, 119. 
 Forty V. Imber, 628. 
 Foster v. Bonner, 435. 
 V. Compton, 390. 
 V. Jolly, 66Q. 
 V. Munt, 713. 
 V. Pointer, 551, 558. 
 Fotheringham v. Greenwood, 118. 
 Fountain v. Boodle, 763. 
 Fowler v. Coster, 595, 599, 602. 
 
 V. Fowler, 713. 
 Fox V. Frith, 660. 
 Foxcroft V. Devonshire, 784. 
 France v. Lucy, 560. 
 Francia's case, 62. 
 Francisco v. Gilmore, 424. 
 Frank v. Frank, 380, 601. 
 
 V. Smith, 406. 
 Frankes v. Gary, 481. 
 Frankland v. M'Gusty, 356, 402. 
 Franklin's case, 282. 
 Eraser v. Hopkins, 310. 
 Free v. Hawkins, 660. 
 Freeman v. Arkell, 193, 539. 
 
 V. Cooke, 100, 343, 462, 762. 
 V. Phillips, 189, 190, 421, 422, 
 
 503. 
 V. Steggal, 571. 
 Fremoult v. Dedire, 400. 
 Friedlander v. London Assurance Com- 
 pany, 245, 248. 
 Friend's case, 204, 206, 253. 
 Frontine v. Frost, 590. 
 Frost V. Holloway, 212. 
 Fry V. Hill, 774, 775. 
 V. Moncton, 605. 
 V. Wood, 409, 410, 522, 525. 
 Fuller V. Fotch, 270, 306, 369, 379, 398. 
 V. Pattrick, 566. 
 V. Prentice, 103, 104. 
 Furley v. Wood, 713. 
 Furly V. Newnham, 423. 
 Furneaux i'. Hutchins, 189, 619. 
 Furness v. Cope. 464, 645. 
 Fursden v. Clogg, 474, 480. 
 Fyler v. Newcombe, 127. 
 Fyson v. Kcmpp, 271. 
 
 Gahan v. Maingay, 349. 
 Gainsford v. Grammar, 572. 
 Galbraith v. Neville, 347, 351. 
 Gale V. Capern, 478. 
 
 V. Lewis, 639. 
 
 V. Williamson, 660, 674. 
 Galway v. Baker, 794. 
 Gancr v. Lanesborough (Lady), 400. 
 Gape V. Handley, 097. 
 Garden v. Cresswell, 104.
 
 TABLE OF CASES. 
 
 XXIX 
 
 Gardiner v. Crosedale, 627. 
 V. Gray, GGl. 
 
 Gardener Peerage case, 88, 4G8. 
 
 Garland v. Scoones, 390. 
 
 Garnett v. Ferraud, 321, 404. 
 
 Garnons v. Swift, 541, 570. 
 
 Garrell v. Lister. 395, 5G5. 
 
 Garrells v. Kensington, 380. 
 
 Garricli r. Williams, 261, 575. 
 
 Garth v. Howard, 763. 
 
 Gascoyne l\ Smith, 800. 
 
 Gathercole v. Miall, 531, 537. 
 
 Gaunt V. Wainman, 331, 365. 
 
 Geach v. Ingall, 596, 601. 
 
 Geary v. Hoskins, 456. 
 
 General Steam Navigation Company v. 
 Guillon, 354. 
 
 George v. Surrey, 530. 
 
 Gerish v. Chartier, 622. 
 
 Gervis v. Grand Western Canal Com- 
 pany, 371. 
 
 Gerers v. Mainwaring, 126. 
 
 Geyer v. Agiiilar, 378, 380. 
 
 Gibbons r. Powell, 555, 557. 
 
 Gibbs V. Pike, 736, 802. 
 V. Ralph, 335. 
 V. Rumsey, 713. 
 V. Sunaley, 804. 
 
 Gibson v. Gell, 689. 
 
 V. Hunter, 623, 791, 797, 798. 
 V. Macarty, 332, 364. 
 
 Gilbert v. Stanislaus, 628. 
 
 Giles V. Powell, 237, 605. 
 V. Smith, 118, 550. 
 
 Gill V. Shelley, 687. 
 
 Gillies V. Smither, 570. 
 
 Girdlestone v. M-Gowran, 133. 
 
 Girdwood's case, 786. 
 
 Gist V. iMason, 802. 
 
 Glascock V. Warren, 577. 
 
 Gleadow v. Aikin, 474, 478. 
 
 Glossop V. Pole, 289, 408. 
 
 Glubb V. Edwards, 514, 
 
 Glynn v. Bank of England, 411, 479. 
 V. Houston, 234. 
 
 Goblet V. Beechy, 654, 709. 
 
 Goddard's case, 343, 640, 720. 
 
 Godefroy v. Jay, 267. 
 
 Godfrey v. Davis, 687. 
 
 V. Macaulej', 280. 
 V. Norris, 513. 
 
 Godfrey's (Sir Edmondbury) case, 858. 
 
 Godmanchester, Bailifi's. &c. v. Phillips, 
 124, 131, 699. 
 
 Godson V. Smith, 335. 
 
 Gold and Silver Wire-drawers (Company 
 of) V. Hammond, 118. 
 
 Goldie V. Shuttleworth, 572. 
 
 Golding V. Crowle, 781. 
 V. Nias, 133. 
 
 Goldshede v. Swan, 709. 
 
 Goldsmith v. Sefton (Lord), 804. 
 
 Golightly V. Jellicoe, 335. 
 
 Goodered v. Armour, 561. 
 
 Goodhay v. Hendry, 143. 
 Goodier v. Lake, 531, 541, 542. 
 Goodinge v. Goodinge, 689. 
 Goodman v. Cotherington, 763. 
 Goodright v. Corder, 785. 
 
 V. Moss, 441. 
 Goodtitle v. Braham, 604. 
 
 V. Chandos (Duke of), 475. 
 V. Otway, 715, 716. 
 d. Revett v. Braham, 172, 610. 
 d. Richardson v. Edmonds, 670, 
 
 671. 
 V. Saville, 553. 
 V. Southern, 691, 692. 
 Goodwin v. West, 104. 
 Gordon v. Secretan, 565, 567. 
 Gordon's case, 87, 551, 646, 647. 
 Gorham v. Thompson, 280. 
 Gorton v. Dyson, 395. 
 Goslin V. Wilcock, 803. 
 Goss V. Nugent (Lord), 655, 724, 725. 
 V. Quinton, 580. 
 V. Tracy, 411, 513. 
 V. Watlington, 481. 
 Gough V. Cecil, 519, 520. 
 Gould V. Oliver, 232, 450, 641. 
 Graham v. Dyster, 224, 561. 
 
 V. Hope, 280. 
 Grant v. Astle, 628. 
 V. Gould, 371. 
 V. Jackson, 443. 
 V. Maddo.x, 702. 
 V. Moser, 738. 
 Granville v. Beaufort fDuchess of), 663. 
 Grater v. Collard, 799.' 
 Graves v. Key, 677, 718. 
 Gray v. Cookson, 369, 370, 398. 
 Graysbrook v. Fox, 451. 
 Greaves v. Ashlin, 664, 665. 
 Green v. Gatewick, 410, 414. 
 V. Hewett, 287. 
 V. New River Company, 322. 
 V. Pronde, 272, 286. 
 V. Sutton, 128. 
 V. Waller, 739. 
 V. Weston, 660, 728. 
 Greenshields v. Crawford, 448, 521. 
 Gregory v. Brunswick (Duke of), 452, 
 613. 
 V. Tavernor, 184, 229. 
 V. Tuffs, 802. 
 V. Williams, 285. 
 Grellier v. Neale, 511, 518, 523, 529. 
 Greswolde v. Kemp, 607. 
 Grevelle v. Atkins, 675. 
 
 V. Chapman, 176. 
 V. Lamb, 232, 236. 
 V. Stulz, 426. 
 Grew V. Bevan, 784. 
 
 V. Hill, 639. 
 Grey v. Smith, 583. 
 
 V. Smithyes, 504, 716, 730. 
 Grey's (Lord) case, 792. 
 Griffith V. Moore, 577.
 
 XXX 
 
 TABLE OF CASES. 
 
 Griffiths V. Payne, 623. 
 
 V. Williams, 572. 
 Griffits V. Ivery, 202. 
 Groenvelt v. Berwell, 369. 
 Groom v. Bradley, 137. 
 V. "Watson, 136. 
 Groome v. Forrester, 370. 
 Grove v. Ware, 559. 
 GryflFyth v. Jenkins, 737. 
 Gnest V. Elwes, 637. 
 Guilliam v. Hardy, 257. 
 Guinness v. Carroll, 349, 355. 
 Gully V. Exeter (Bishop of), 441, 486, 
 
 531. 
 Gunnis v. Erhart, 556, 664. 
 Gunston v. Downs, 129. 
 Gurney v. Langlands, 174. 
 Gurr V. Rutton, 43. 
 Gutteridge v. Smith, 807. 
 Guy V. Gregory, 640. 
 Gwinnett v. Phillips, 628. 
 Gwynne )). Sharpe, 617, 640. 
 Gyftbrd v. Woodgate, 437, 718. 
 Gyles V. Hill, 271. 
 
 Haddow v. Parry, 485. 
 
 Haddrick v. Heslop, 128, 622, 783, 810. 
 
 Hadley v. Green, 335. 
 
 Hagedorn v. Reid, 493, 548, 551. 
 
 Haigh V. Belcher, 201, 618. 
 
 V. Brooks, 709. 
 Haire v. Wilson, 763. 
 Halhead v. Abraham, 807. 
 Halifax's (Lord) case, 594, 756. 
 Hall V. Bainbridge, 510. 
 
 V. Ball, 542, 544. 
 
 V. Cazenove, 720. 
 
 V. Cecil and Rex, 120. 
 
 V. Chandless, 502. 
 
 V. Hoddesdon, 420, 431. 
 
 V. Stone, 335. 
 
 V. Wiggett, 678. 
 Hallett V. Cousens, 169, 171, 243. 
 
 V. ilears, 103-. 
 Halliley ;;. Nicholson, 650, 604. 
 namV)er r. Roberts, 521. 
 Hammond v. Howell, 369. 
 Hampshire v. Pierce, 668, 680. 
 Hanbury v. Ella, 637. 
 Hancock v. Podmore, 807. 
 
 V. Welsli, 329, 334, 360. 
 Ilanley v. Ward, 197. 
 Hftiuiaford r. Hunn, 343. 
 Hanson v. Shackleton, 738. 
 JIanwell v. Lyon, 266. 
 Ilarcourt's case, 190. 
 Hardcastle v. Sclater, 403. 
 Hardwood v. Wallace, 077. 
 Hardy's case, 184, 192, 197, 204, 213. 
 Hare v. Cater, 028. 
 
 V. Mnnn, 596. 
 
 V. Slicarwood, 658. 
 Hargcst v. Fotliergill, 550. 
 ilarrap v. Bradsiiaw, 390. 
 
 Harratt v. Wise, 280, 785. 
 Harrington v. Macmorris, 450, 641. 
 Harris v. Goodwyn, 747. 
 
 V. Lincoln (Bishop of), 055. 
 V. Lloyd, 087. 
 
 V. Tippett, 200, 201, 210, 213. 
 Harris's case, 230, 863. 
 Harrison v. Barnaby, 628. 
 
 V. Blades, 410, 518. 
 V. Borwell, 271. 
 V. Gordon, 201. 
 V. Gould, 599. 
 V. Harrison, 508. 
 V. Turner, 582. 
 Harrison's case, 253. 
 Harscot's case, 756. 
 Hart V. Harrison, 581. 
 V. Hart, 542. 
 V. Macnamara, 378. 
 V. Stephens, 135, 137. 
 Hartley v. Cooke, 304, 309. 
 
 V. Wharton, 591, 721. 
 Hartshorne v. Watson, 120, 143, 144. 
 Harvey v. Harvey, 312, 658. 
 V. Hewitt, 805. 
 V. Mitchell, 541, 614, 615. 
 V. Morgan, 559. 
 Harvy v. Broad, 738. 
 Harwood v. Goodright, 760, 818, 847. 
 
 V. Sims, 50. 
 Hastings's case, 244, 282. 
 Hatch V. Blisset, 113. 
 Hatfield v. Hatfield, 375. 
 Hathaway v. Barrow, 332, 364, 365. 
 Hattam v. Withers, 562. 
 Havelock v. Rockwood, 380, 382. 
 Hawkesworth t). S^iowler, 139. 
 Hawkins v. Kemp, 509. 
 Haworth v. Whalley, 806. 
 Haws V. Hand, 411. 
 Hayne v. Maltby, 100. 
 Haynes v. Hare, 652, 658. 
 
 V. Holliday, 706. 
 Hayslip v. Gymer, 468. 
 Hazy's case, 643. 
 Healey v. Story, 000. 
 
 V. Thatcher, 582. 
 Hearne v. Turner, 137. 
 Hedges' case, 185, 862. 
 Hemming v. Parry, 636. 
 
 V. Trenery and another, 501. 
 Henderson v. Henderson, 335, 342, 353, 
 
 354, 357, 402. 
 llenklc V. Royal Exchange Assurance 
 
 Company, 076, 703. 
 Henley v. Soper, 341, 358. 
 llcnman v. Dickenson, 500. 
 llenncll v. Lyon, 432, 447, 448, 
 Henry v. Adey, 259, 399, 400, 737, 740. 
 V. Lee, 180. 
 V. Leigh, 309, 552. 
 Ilenshaw v. Pleasance, 348, 379. 
 Herbert v. Cooke, 358, 400. 
 V. Reid, 091.
 
 TABLE OF CASES. 
 
 XXXI 
 
 Herbert v. Walters, T98. 
 Hervey's case, 375, 403. 
 Hetherington v. Kemp, 551. 
 Heudebourck v. Langley, 121. 
 Hewitt V. Macquire, 540. 
 
 V. Pigott, 447. 
 Hewlett V. Crutchley, 804. 
 Hewsou V. Brown, 257. 
 Heyshaiu v. Forster, 312. 
 Hibbert V. Knight, 112, 113, 540. 
 llibblewhite v. M'Morine, 503. 
 Higgins V. iSenior, 665, 721. 
 Higginson v. Clowes, 664. 
 lliggs V. Dixon, 507. 
 
 V. Mortimer, 435. 
 V. Taylor, 540. 
 Higham v. Ridgway, 64, 65, 465, 474, 475. 
 Highfield v. Peake, 227, 261, 423, 432, 
 
 447. . 
 Hilliard v. Phaley, 376. 
 Hill V. Bateman, 369, 370. 
 V. Coombe, 197. 
 V. Kitching, 135. 
 
 V. Manchester and Stafford Water- 
 work Company, 309, 659. 
 V. Unett, 519, 520. 
 Hillard v. Phaley, 339. 
 Hillyard v. Grantham, 363, 364. 
 Hilton V. Shepherd, 775. 
 Hinchclifte v. Hinchclitie, 714. 
 Hinton v. Heather, 783. 
 
 V. Campbell, 329, 333, 334. 
 V. Groom, 675, 787. 
 Hoare v. Graham, 660, 666. 
 Hobart v. Hammond, 770, 773. 
 Hobhouse v. Hamilton, 573. 
 Hobman v. Burrow, 739. 
 Hockiu V. Cooke, 700, 702, 741. 
 Hodges V. Draketord, 655. 
 
 V. Holder, 597. 
 Hodgkinson v. Willis, 447. 
 Hodgson V. Ambrose, 687. 
 
 V. Glover, 790. 
 Hodnett v. Forman, 513, 514. 
 Hodson V. Marshall, 121. 
 
 V. Merest, 442. 
 Hoe V. Nathorp, 268, 269. 
 
 V. Nelthrope, 395. 
 Hogarth v. Perring, 603. 
 Hogg V. Suaith, 666. 
 Hoggett V. Exley, 599. 
 V. Uxley, 600. 
 Holcombe v. Hewson, 619. 
 Holcroft V. Smith, 411, 575. 
 Holding V. Pigott, 711, 712. 
 Holdsworth v. Dartmouth (Mayor of), 
 
 250. 
 Holland v. Reeves, 228, 563, 581. 
 Holland's case, 735. 
 Holliday v. Pitt, 113. 
 Hollis V. Goldfinch, 470. 
 Holloway v. Rakes, 489. 
 Holmes v. Pontin, 513. 
 Holmes v. Walsh, 403. 
 
 Holsten v. Jumpson, 677, 720. 
 Holt V. Miers, 340, 555, 557. 
 Home V. Bentnick, 42, 192, 256. 
 Honey wood v. Peacock, 505, 513. 
 Hood V. Reeve, 702, 706. 
 llooley V. Hatton, 714. 
 Hooper v. Hooper, 326. 
 
 V. Lane, 799, 785. 
 Hope V. Atkins, 661, 662. 
 Hopkins v. Jones, 389, 390. 
 Horford v. Wilson, 145, 800. 
 Horn V. Baker, 786. 
 
 V. Swinford, 114. 
 Home V. Mackenzie, 178, 182. 
 
 V. Smith, 104. 
 Horneyer v. Lushington, 382. 
 Houlditch V. Donegal (Marquis), 351, 
 
 353. 
 Houlisten v. Smyth, 393. 
 Househill Coal Company o. Neilson, 797. 
 Houseman v. Roberts, 555. 
 Hovill V. Stephenson, 513. 
 How V. Hall, 561, 562. 
 V. Pickard, 809. 
 V. Strode, 799. 
 Howard v. Burtonwood, 299. 
 V. Canfield, 180, 184. 
 V. Gossett, 105. 
 V. Smith, 506. 
 V. Tremaine, 409, 420. 
 V. Williams, 556. 
 Howell V. Locke, 115, 144. 
 
 V. Wilkins, 740. 
 Hoyle V. Cornwallis, 738. 
 V. Coupe, 124. 
 V. Hamilton, 687. 
 Hubbard v. Johnstone, 766. 
 Hubbart i). Phillips, 324. 
 Iluckman v. Fernie, 596. 
 Hudson V. Brown, 586, 603. 
 V. Revett, 502. 
 V. Robinson, 361, 365. 
 Hudson's case, 511. 
 Huet V Le Mesurier, 300. 
 Hughes V. Cornelius, 380. 
 
 V. Gordon, 701, 712. 
 V. Hughes, 799, 801. 
 V. Rogers, 201, 202. 
 V. Turner, 688. 
 V. Wilson, 307. 
 Hughes' case, 643. 
 Hull (Mayor of) v. Horner, 387. 
 Humble v. Hunt, 270, 283, 309. 
 
 V. Hunter, 665. 
 Humphreys v. Budd, 738. 
 V. Knight, 285. 
 V. Miller, 118. 
 V. Pensam, 415. 
 Hunt V. Alewyn, 530. 
 V. Andrews, 310. 
 V. Hort, 650. 
 Hunter v. Caldwell, 780, 785. 
 
 V. Potts, 737. 
 Huntingtower (Lord) v. Gardiner, 809.
 
 xxxu 
 
 TABLE OF CASES. 
 
 Huntley v. Donovan, 306, 
 Huntley Peerage, 284, 526. 
 Hurst V. Beach, 715. 
 
 V. Royal Exchange Assurance 
 Company, 772. 
 Hussey v. Field, 757. 
 Hutchins v. Scott, 501. 
 Hutchinson v. Bernard, 434. 
 V. Bowker, 705. 
 Hutchinson's case, 366, 383. 
 Huthwaite v. Phaire, 400. 
 Hutt V. Morell, 334. 
 Hutton V. Warren, 712, 761. 
 Huxhain v. Smith, 3 50, 359. 
 
 Iggulden V. May, 700, 701. 
 
 Ilderton v. Atkinson, 122. 
 
 niingworth v. Leigh, 291, 430, 431, 477. 
 
 Icledon v. Burgess, 326. 
 
 Ingram v. Lawson, 452, 613. 
 
 V. Lea, 729. 
 Ireland v. Powell, 49. 
 Irish Society v. Derry (Bishop of), 260, 
 
 287, 309, 406, 492, 579. 
 Irnham (Lord) v. Child, 658, 672. 
 Isaacs V. Brand, 781. 
 Isham !'. Wallace, 309. 
 Islington Market Bill, In re, 757. 
 Ivatt V. Finch, 486. 
 
 Jack V. M'Intyre, 692. 
 Jackson v. Allen, 571. 
 
 V. Bull, 27. 
 
 V. Duchaire, 803. 
 
 V. Hesketh, 597, 605. 
 Jacob V. Lee, 560. 
 Jacobs V. Layborne, 144, 145. 
 V. Laybourn, 115, 615. 
 V. Lindsay, 180, 181, 729. 
 V. Tarleton, 608. 
 James v. Phelps, 783. 
 V. Salter, 605. 
 James's case, 266, 447. 
 Jameson ('. Drinkald, 175. 
 Janson v. Wilson, 419. 
 Jarrett v. Leonard, 799. 
 Jeacock v. Falkener, 666, 670, 689. 
 Jeans r. Wheadon, 544, 718. 
 Jefferey v. McTaggart, 346. 
 V. Walton, 656, 724. 
 Jenkins v. Blizard, 280. 
 Jenkinson v. Pepys, 664. 
 Jennings v. Griffiths, 311. 
 Jewison v. Dyson, 312, 524, 620. 
 Johnson v. (JoUings, 657. 
 
 V. Durant, 349. 
 
 V. Gilson, 560, 580. 
 
 V. Graham, 135, 136. 
 
 V. Levvellin, 505. 
 
 V. Mason, 505. 
 
 V. St. Peter, Hereford, 761. 
 
 V. Ward, 300. 
 Johnstone v. Sutton, 781. 
 Johnstone's case, 626. 
 
 Jolley V. Taylor, 561. 
 Jones V. Bow, 375, 376. 
 
 V. Brewer, 423, 505, 510, 518. 
 
 V. Edwards, 559. 
 
 V. Fort, 614. 
 
 V. Gibson, 810. 
 
 V. Hilton, 559. 
 
 V. Howell, 056. 
 
 V. Jones, 410, 521. 
 
 V. Kenrick, 595. 
 
 V. Littledale, 665, 707. 
 
 V. Mason, 521. 
 
 V. Morgan, 670. 
 
 V. Newsam, 679. 
 
 V. Randall, 281, 389, 393. 
 
 V. Sparrow, 804. 
 
 V. Stevens, 309. 
 
 V. Stroud, 180, 183. 
 
 V. Tarleton, 555. . 
 
 V. Tucker, 688. 
 
 V. Waller, 527. 
 
 V. White, 361, 364, 406. 
 
 V. Williams, 620. 
 Jory V. Orchard, 500, 558. 
 Joynes v. Statham, 672. 
 Joy's (Lady) case, 803. 
 Jupp V. Grayson, 349. 
 
 Kain v. Old, 661, 678. 
 
 Kaines v. Knightl}', 661. 
 
 Kay V. Brookman, 517, 519, 520. 
 
 V. Clarke, 394. 
 Keable i'. Hayne, 367. 
 Kearle v. Boulter, 771. 
 Kearney v. King, 738, 741. 
 Keelin v. Ball, 571. 
 Kellington v. Trinity College, Cambridge 
 
 (Master, &c., of), 286, 407. 
 Kemp V. Mackerill, 616. 
 Kempson v. Yorke, 583. 
 Kempton v. Cross, 259. 
 Kenn's case, 375. 
 
 Kensington v. Inglis, 184, 185, 537, 548. 
 Kent V. Lowen, 89, 174, 467. 
 Kerslake v. White, 691. 
 Keys V. Harwood, 729, 731. 
 Kieran v. Johnson, 552. 
 Killington( Vicar of) I'.Trinity College, 289 
 Kinder i>. Williams, 113, 114. 
 Kindersley v. Chace, 380, 381, 382. 
 Kine v. Beaumont, 558. 
 King V. Baker, 133. 
 
 V. Cole, 506. 
 
 V. Dixon, 111. 
 
 V. Foster, 312. 
 
 V. Norman, 321, 322, 639. 
 
 V. Simmonds, 792. 
 
 V. Williamson, 615, 
 Kinsman v. Cooke, 410. 
 Kingston-upon-lIuU (Mayor of) v. Hor- 
 ner, 455. 
 Kingston's (Duchess of) case, 180, 319, 
 323, 322, 337, 341, 354, 374, 377, 385, 
 402.
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Kinnersley v. Orpe, 2G1, 283, 294, 324, 
 
 329. 
 Kirbj V. Hickson, 738. 
 Kirk V. Nowill, 735. 
 Kirwan v. Cockburn, 280. 
 
 V. Kirwan, 280. 
 Kitchen v. Campbell, 318. 
 
 V. Mainwaring, 7G4. 
 Kite V. Queinton, 678. 
 Knai)p V. Haskall, 609. 
 Knapton v. Cross, 394. 
 Knight V. Clements, 500. 
 
 V. Dauler, 2 72. 
 
 V. M'Donall and others, 641. 
 
 V. Martin, 553, 567. 
 
 V. Waterford (Marquis of), 480, 
 551. 
 
 V. Woore, 124. 
 Knolly's case, 282. 
 Koster v. Reed, 132. 
 
 Lacy V. Forrester, 592. 
 Lacon v. Hooper, 306. 
 Lagbourn v. Crisp, 189. 
 Laing v. Kaine, 505, 572. 
 Lainson v. Tremere, 657, 659, 666. 
 Lake v. Billers, 436. 
 
 V. Kink, 736. 
 
 V. Lake, 713. 
 
 V. Skinner, 291. 
 Lambert v. Hale, 603. 
 Lanauze v. Palmer, 559. 
 Lancum v. Lovell, 386, 472. 
 Lane v. Hegberg, 379. 
 
 V. Stanhope (Lord), 689. 
 Lane's case, 737. 
 
 Lanesborough's (Lord) case, 266, 545. 
 Langfield d. Banton v. Hodges, 713. 
 Langley v. Oxford, 505, 573. 
 Lano V. Neale, 661. 
 Latkow V. Earner, 289, 407. 
 Latour v. Bland, 719. 
 Launder v. Brooks, 736. 
 Lavie v. Phillips, 736. 
 Lawes v. Reed, 180. 
 Lawler v. Murray, 796. 
 Lawrence v. Clarke, 551, 555, 557, 559, 
 562. 
 V. Dixon, 299. 
 V. Hooker, 503. 
 Lawson v. Sherwood, 569. 
 Layburn v. Crisp, 392. 
 Layer's case, 42, 209, 238. 
 Leader v. Barry, 300. 
 Leafy. Butt, 557. 
 Leake v. Westmeath (Marquis of), 268, 
 
 393. 
 Leary v. Patrick, 370. 
 Le Caux v. Eden, 380. 
 Lechmere v. Fletcher, 342. 
 V. Toplady, 333. 
 Lee q. t. v. Birrell, 193. 
 V. Lee, 30. 
 
 Lee V. Meecock, 267, 298, 389. 
 Lee's case, 201. 
 Leeds v. Cook, 113, 553, 562. 
 Leeson v. Holt, 280. 
 Legatt V. Reed, 785. 
 
 V. Tollervey, 322. 
 Le Gross v. Lovemore, 477. 
 Leighton v. Leighton, 406, 408, 416. 
 Lemon v. Dean, 511, 518, 530. 
 London v. Sharp, 784. 
 Lepping v. Kedgewin, 334. 
 Leslie v. De la Torre, 657, 661. 
 LethuUier's case, 703, 704. 
 Levy V. Baillie, 803. 
 Lewick v. Lucas, 338. 
 Lewis V. Clarges, 360. 
 
 V. Hartley, 571. 
 
 V. Marshall, 618, 653, 702, 707, 
 788, 789. 
 
 V. Rogers, 467. 
 
 V. Simpson, 467. 
 
 V. Wells, 598. 
 Ley V. Ballard, 511, 518. 
 Leibman v. Pooley, 543, 548, 643, 644. 
 Lightfoot w. Cameron, 113. 
 Lilly V. Ewer, 703, 705. 
 Lincoln (Bishop of) v. Ellis, 327. 
 Lingham v. Briggs, 786. 
 Linton v. Bartlett, 784. 
 
 School V. Scarlett, 696. 
 Littler v. Holland, 663, 725. 
 Lloyd V. Freshfield, 184. 
 
 V. Maddox, 402. 
 
 V. Mostyn, 540, 543, 556. 
 
 V. Wait, 497. 
 
 V. Wynne, 658. 
 Lobb V. Stanley, 721. 
 Lock V. Hayton, 27. 
 Locke V. Norborne, 326. 
 Lockett V. Nicklin, 656, 664. 
 London and Birmingham Railway Com- 
 pany V. Winter, 675. 
 
 (City of) V. Clarke, 386. 
 
 (Mayor, &c. of) v. Long, 697. 
 
 (Mayor of) a^. Lynn (Mayor of), 
 455. 
 Long V. Champion, 447. 
 
 V. Hitchcock, 203, 240, 241. 
 Longcamp v. Fish, 784. 
 Lorton (Lord) v. Gore, 550. 
 Lothian v. Henderson, 380. 
 Lovat's (Lord) case, 115, 143, 144. 
 Lovelace's case, 508. 
 Lowe V. JoUifFe, 511. 
 
 V. Peers, 747. 
 Lowfield V. Stoneham, 668. 
 Lucas V. De la Cour, 443. 
 
 V. Groning, 701. 
 Lugg V. Lugg, 715. 
 Lunniss v. Row, 143, 144. 
 Lutterell v. Raynell, 253. 
 Luttrell V. Lea, 257. 
 Lygon V. Strutt, 290, 312, 526. 
 Lynch v. Gierke, 268, 315, 444.
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Lynn v. Beaver, 715. 
 
 V. (Mayor of) v. Denton, 456. 
 Lynn's (Mayor and Burgesses of) case, 
 
 510. 
 Lysons v. Barrow, 400. 
 Lytton V. Lytton, 670. 
 
 Macullam v. Thurton, 204. 
 M'Alpine v. Mangnall, 795. 
 Macbeth v. Haldimand, 677, 720, 730, 
 
 787. 
 M'Brain v. Fortune, 121. 
 Macbride v. Macbride, 207, 210. 
 M'Carthy's case, 718. 
 Macclesfield's (Lord) case, 204. 
 M'Combie v. Anton, 420, 426. 
 Macdonnell v. Evans, 227. 
 Macdougal v. Young, 272. 
 M'Graw v. Gentry, 518, 529. 
 M'Gahey v. Alston, 131, 481, 534, 538, 
 
 64G, 647. 
 M'Guire's case, 643. 
 M'Intyre v. Layard, 432. 
 M'lver V. Humble, 311. 
 Mackalley's case, 397. 
 Mackally's case, 626. 
 Mackell v. Winter, 689. 
 M'Naghten's case, 174, 175, 
 M'Neil V. Perchard, 271. 
 Maddison v. Nuttall, 476. 
 Magee v. Atkinson, 665, 707. 
 Magrath v. Hardy, 343. 
 Makarell v. Bachelor, 773. 
 Malkin v. VickerstafF, 802. 
 Mallabar v. Mallabar, 713. 
 Mallan v. May, 701, 705. 
 Maloney v. Bartley, 204, 205. 
 Malony v. Gibbons, 351. 
 Malpas V. Clements, 759. 
 Maltoir v. Nesbitt, 175. 
 Man V. Gary, 269. 
 Manby v. Curtis, 522, 523, 528. 
 Manley v. Shaw, 816. 
 Mann v. Davers, 370. 
 
 V. Lovejoy, 807. 
 
 V. Musgrave, 566. 
 
 V. Owen, 3G0. 
 Manners v. Postan, 507. 
 Manning v. Eastern Counties Railway 
 Company, 757. 
 V. Lechmere, 481. 
 Mant V. Mainwaring, 120, 128. 
 Manton v. Bales, 804. 
 Markhani v. Middleton, 335. 
 Marks v. Lahec, 485, 496. 
 Marleys v. Drayton. See Masters v. 
 
 Drayton. 
 .Marriage v. Lawrence, 309, 455. 
 Marriot v. .Marriot, 400. 
 .Marriott v. Hampton, 348. 
 Marsh v. (JoUiiett, 269. 
 
 V. Colnett, 300, 522, 523. 
 
 V. Robinson, 310. 
 Marshall v. Glill", 572. 
 
 Marshall v. Lamb, 646, 758. 
 
 V. Lynn, 655, 663, 725. 
 V. Parker, 381. 
 Marston v. Downes, 214, 540. 
 
 V. Roe d. Fox, 715, 716. 
 Marten v. Thornton, 336. 
 Martin v. Bell, 437. 
 
 V. Nicolls, 346, 352, 353. 
 Martin Lolly's case, 402. 
 Martyn v. Podger, 436. 
 Mascal v. Mascal, 658, 667. 
 Mash V. Smith, 130. 
 Mason v. Ditchbourne, 615. 
 Massey v. Goyder, 615. 
 
 V. Johnson, 398. 
 Masters v. Barnwell, 804. 
 
 V. Drayton, 118, 120. 
 
 V. Masters, 654, 670, 690. 
 Mathews v. Smith, 809. 
 Matthews v. Haydon, 122. 
 Maugham v. Hubbard, 178, 179, 181, 511 
 
 729. 
 Mawson v. Hartsink, 238. 
 Maxwell v. Sharp, 722. 
 May V. Chapman, 593. 
 V. May, 298, 414. 
 Maybank v. Brooks, 689. 
 Mayer (Assignees of) v. Sefton, 645. 
 Mayfield v. Wadsly, 804. 
 Mayo V. Browne, 403. 
 Mead v. Robinson, 269, 308. 
 Meagoe v. Simmons, 180, 202, 605. 
 Mease v. Mease, 652, 659, 666. 
 Meath (Bishop of) v. Belfield (Lord), 49, 
 190, 309, 730. 
 V.Winchester (Marquis of), 292, 
 444, 459, 524, 527, 767, 789, 791. 
 Meddowcroft v. Huguenin, 402. 
 Medlicot v. Joyner, 543. 
 Mee V. Reed, 31. 
 Meekinsw. Smith, 113. 
 Melhuish v. Collier, 132, 168. 
 Mellish V. Rawdon, 770. 
 Melville's (Lord) case, 282, 548, 756. 
 Mendham v. Thompson, 464. 
 Mercer v. Whall, 597, 599, 600, 605. 
 Meres v. Ansell, 662, 684, 725. 
 Merrick v. Wakely, 309. 
 Mayer v. Everth, 661. 
 Meyer's Assignees v. Sefton, 177. 
 Meyrick v. Woods, 557. 
 Michell V. Rabbetts, 292, 526. 
 
 V. Williams, 782. 
 Middleton v. Barned, 755, 760. 
 Milbanke v. Grant, 647. 
 V. Melton, 481. 
 V. Sandford, 520. 
 Milbourn v. Ewart, 722. 
 Mildniay's case, 659. 
 Mildrone's case, 31. 
 Miles V. Bough, 313. 
 Millar v. Heiurick, 175. 
 Millar's case, 173. 
 Millard's case, 622.
 
 TABLE OF CASES. 
 
 XXXV 
 
 Miller v. Falconer, 122. 
 
 V. Foster, 293. 
 
 V. Miller, 515, 522. 
 
 V. Travers, 686, 687, 690, 694. 
 
 V. Warre, 791, 798. 
 Jliller's case, 293. 
 Millman v. Tucker, 213. 
 Mills V. Barber, 592. 
 
 V. Oddy, 540, 592. 
 Milton (Lord) v. Edgworth, 655, 663. 
 Milward v. Forbes, 581. 
 V. Hibbert, 621. 
 V. Temple, 520, 572, 753. 
 Minchin v. Clement, 809. 
 Minshull v. Lloyd, 538. 
 Minton's case, 626. 
 Mires v. Solebay, 766. 
 Mitchell V. Johnston, 519, 520. 
 Moises V. Thornton, 259, 457, 647, 740. 
 Molier v. Living, 702. 
 Molony v. Gibbons, 358. 
 Molton V. Harris, 545, 575. 
 Monday v. Guyer, 127. 
 Mondell v. Steel, 337, 338, 426. 
 Money v. Leach, 795. 
 Monke v. Butler, 594, 756. 
 Monkton v. Attorney-General, 63, 190, 
 
 422. 
 Montague (Earl of) v. Preston, (Lord), 
 
 444. 
 Montgomery v. Clarke, 389, 390. 
 Moodaylay v. Morton, 428. 
 Moody V. King, 120, 129. 
 
 V. Thurston, 348, 401. 
 Moon V. Raphael, 544. 
 
 V. Whitney Guardians, 710. 
 Moore v. Booth, 114. 
 
 V. Garwood, 786. 
 
 V. Hastings, (Mayor of), 578, 579. 
 
 V. Taylor, 803. 
 
 V. Tuckwell, 801. 
 Moravia v. Sloper, 737. 
 Morland v. Bennett, 750. 
 Morewood v. Wood, 48, 49, 62, 187, 620. 
 Morgan v. Brydges, 196. 
 V. Hughes, 369. 
 V. Moore, 345. 
 V. Morgan, 517. 
 V. W^hitmore, 759. 
 Morgan's case, 29, 31. 
 Morish v. Foote, 115, 122. 
 Morrell v. Fisher, 688, 692. 
 
 V. Frith, 787. 
 Morris v. Davies, 814. 
 
 V. Davis, 299. 
 
 V. Hannen, 560. 
 
 V. Hauser, 560. 
 
 V. Lotan, 599. 
 
 V. Pugh, 435. 
 
 V. Vivian, 806. 
 Morrish v. Murrey, 801. 
 Morrison v. Lennard, 114. 
 Mortimer v. M'Callan, 266, 269, 456, 801. 
 Morton v. Burn, 657. 
 
 Moscati V. Lawson, 611. 
 Moseley v. Davies, 189. 
 
 V. Hanford, 660. 
 Moses V. Macfarlane, 347. 
 Mostyn v. Fabrigas, 423, 737. 
 Motteux V. London Assurance Company, 
 
 676. 
 Mould V. Williams, 270. 
 Mounsey v. Blamire, 692. 
 
 V. Burnham, 505. 
 Mounson v. Bourn, 737. 
 Mulvany v. Dillon, 419. 
 Munn V. Baker, 280. 
 
 V. Godbold, 541, 543, 544. 
 Murley v. M'Dermott, 723. 
 Murphy v. Donlan, 810. 
 Murray v. Gregory, 506. 
 
 V. Stair (Earl of), 510, 
 
 V. Wise, 416. 
 Musgrave v. Emmerson, 481, 484. 
 Mytton V. Harris, 291. 
 
 Naish V. Brown, 613. 
 Nannock v. Horton, 688. 
 Napier v. Napier, 688. 
 Nathan v. Buckland, 800. 
 Naylor v. Taylor, 382. 
 Neale v. Fry, 314. 
 
 V. Wilding, 387. 
 Needham v. Eraser, 104, 640. 
 
 V. Law, 119. 
 Neilson v. Harfod, 787. 
 Nelson v. Whittall, 519, 520. 
 Newcastle (Duke of), v. Broxtowe Hun- 
 dred, 187. 
 New College (case of), 371, 401. 
 Newhall v. Holt, 807. 
 Newham v. Raithby, 300. 
 Newton v. Boodle, 793. 
 V. Chantler, 784. 
 V. Chaplin, 112, 540. 
 Newys v. Larke, 798. 
 Nicholls V. Dowding, 146. 
 
 V. Parker, 49, 63, 186. 
 Nicholson v. Brook, 615. 
 Nichols V. Ross, 755. 
 Nicol V. Alison, 427. 
 Nind V. Arthur, 793. 
 Noble V. Kennaway, 780. 
 V. Kinnoway, 621. 
 Noden i\ Johnson, 629. 
 Noel V. Wells, 374, 400. 
 Norman v. Morrell, 654. 
 Northam v. Latouche, 398. 
 Norton v. Melbourne (Lord), 425. 
 Novelli V. Rossi, 354. 
 Noyder v. Peacock, 416. 
 
 Oakden v. Clifden, 689. 
 Gates d. Wigfall v. Brydon, 671. 
 Obicini v. Bligh, 341, 355, 356. 
 O'Coigly's case, 210. 
 O'Connor v. Malone, 390. 
 O'Connor's case, 210.
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Oddy V. Bovill, 381, 382. 
 Ofley V. Hicks, (3G6. 
 Ogle V. Norcliffe, 131. 
 
 V. Paleski, 115, 145. 
 Okill V. Whittaker, 675. 
 Oldman v. Slater, 113. 
 Oldroyd's case, 231, 239. 
 Olive V. Guin, 739. 
 
 V. Gwyn, 259, 576. 
 Oliver v. Bartlett, 43. 
 V. Latham, 125. 
 Omichund v. Barker, 29, 116, 294. 
 Orr V. Morrice, 566. 
 Osborn v. Thompson, 601. 
 Osgathorpe v. Diseworth, 383. 
 Osterman v. Bateman, 622. 
 Outhwaite v. Hudson, 807. 
 Outram v. Morewood, 48, 49, 323, 326, 
 
 329, 334, 343, 473, 476, 477, 480. 
 Overton v. Harvey, 334. 
 
 Paddock v. Fradley, 691. 
 Page V. Faucet, 738. 
 
 V. Mann, 519, 520. 
 Pain V. Beeston, 241. 
 Pallant v. Roll, 626. 
 Palmer v. Aylesbury (Lord), 411, 431, 
 
 432. 
 Palmerston's (Lord) case, 191, 414, 433. 
 Panton v. Williams, 770, 782. 
 Pardoe v. Price, 500, 535, 657. 
 Pargeter v. Harris, 460. 
 Parker v. Hoskins, 514, 516, 
 
 V. M'Williams, 200. 
 
 V. Palmer, 780. 
 
 V. Whitby, 118. 
 Parkhurst v. Lowten, 204. 
 Parkin v. Moon, 168, 197. 
 Parkins v. Hawkshaw, 520, 572. 
 Parkinson v. Collier, 707. 
 Parry v. May, 554. 
 Parsons v. Parsons, 686. 
 Parteriche v. Powlet, 725. 
 Partington v. Butcher, 444, 583. 
 Partridge v. Coates, 553. 
 
 V. Strange, 684, 735. 
 Pasmore v. Bousfield, 647. 
 Patch ett V. Bancroft, 379. 
 Patrick's (Dr.) case, 371, 401. 
 Paxton V. Douglas, 204. 
 
 V. Popham, 072, 675, 807. 
 Peaceable v. Watson, 490. 
 Peacock v. Bell, 737. 
 
 V. .Monk, 659, 660. 
 Pearce v. Gray, 337, 361. 
 
 V. Hooper, 5G5. 
 
 V. Whale, 758. 
 Pearcy v. Fleming, 120. 
 Peardon v. Undcrhill, 620. 
 Pearse v. Morris, 500, 564, 578. 
 Pearson v. Cole, 002. 
 
 V. Henry, 658. 
 Pease v. Naylor, 774. 
 Peddcr v. M'Master, 346. 
 
 Pedler v. Paige, 512. 
 
 Pedley's case, 173. 
 
 Pegg V. Stead, 640. 
 
 Pember v. Mathers, 664. 
 
 Penn v. Ward, 618. 
 
 Pennell v. Meyer, 439, 444. 
 
 Penny v. Foy, 589. 
 
 Penson v. Lee, 616. 
 
 Pepper v Winyeve, 670. 
 
 Percival v. Frampton, 592. 
 
 Perigal v. Nicholson, 65, 115, 144, 477. 
 
 Perring v. Tucker, 615. 
 
 Perrott v. Perrott, 502. 
 
 Perry v. Gibson, 196. 
 
 Fetch V. Lyon, 572. 
 
 Petersborough (Lord) v. Mordaunt, 531. 
 
 Peters v. Fleming, 773. 
 
 Petit V. Smith, 670. 
 
 Petre (Lord) v. Blencoe, 699. 
 
 Philipson v. Chase, 563. 
 
 Phillipson v. Egremont (Lord), 324, 385, 
 
 402, 403. 
 Phillips V. Allen, 342. 
 
 V. Bury, 371, 401. 
 
 V. Carew, 428. 
 
 V. Cole, 491, 492, 788. 
 
 V. Crawley, 375. 
 
 V. Earner, 196. 
 
 V. Hunter, 346, 347, 348. 
 
 V. Irving, 780. 
 
 V. Willetts, 616. 
 Phipps V. Parker, 511, 518, 530. 
 Physicians (College of) v. West, 276. 
 Pickard v. Sears, 100, 762. 
 Pickering v. Dowson, 661, 678. 
 Pickton's case, 175, 279. 
 Piercy's case, 314. 
 Piers V. Piers, 754. 
 Piesley v. Yon Esch, 120. 
 Pilce V. Badmering, 511. 
 Pike's case, 33. 
 
 Pilgrim v. Southampton Railway Com- 
 pany, 572. 
 Pirn d. Curell, 189, 340, 386, 422. 
 Pinkney v. Hall, 236. 
 
 V. De Rosel, Inhab., 27. 
 V. Steel and another, 128. 
 Piper V. Chappell, 756. 
 Pirie v. Anderson, 310, 311. 
 Pitcairn v. Ogbourne, 676. 
 Pitcher v. King, 261, 438. 
 
 V. Rinter, 396. 
 Pitman v. Maddo.x, 493. 
 
 V. Woodbury, 500, 508. 
 Pitt V. Knight, 257. 
 
 V. Shew, 774, 779. 
 Pitton r. Walter, 267, 312, 389, 390, 414. 
 Plaxton V. Dare, 286, 481. 
 Playdell v. Dorchester (Lord), 804. 
 Plumer v. Brisco, 507, 568, 577, 646. 
 Plumer's case, 174. 
 Phuiinicr v. Woodburne, 341, 352. 
 Plunkett V. Cobbett, 193. 
 Pocock V. Lincoln (Bishop of), 689.
 
 TABLE OF CASES. 
 
 XXXVU 
 
 Pole V. Rogers, 426, 601. 
 
 r. Somers (Lord) 714. 
 Polhill V. Polhill, 394. 
 Pollard V. Bell, 355, 381, 382. 
 
 V. Scott, 290. 
 Pomeroy v. Baddeley, 199. 
 Pontifex v. Bignold, 763. 
 Poole V. Dicas, 496, 497. 
 
 V. Warren, 542, 570. 
 Pooley V. Goodwin, 541, 542, 569. 
 Poter V. Cooper, 2G7, 391. 
 Portmore (Lord) v. Morris, 658, 659. 
 Portez V. Glossop, 4G7, 502, 521, 758. 
 Pott V. Todhunter, 674. 
 Potter V. Brown, 346. 
 Potts V. Durant, 290, 291, 292, 293, 294, 
 
 527. 
 Powel V. Gordon. See Powell v. Gordon. 
 
 V. Milbank, 594. 
 Powell V. Edmonds, 656, 661, 664. 
 V. Farmer, 628. 
 V. Gordon, 118. 
 V. Horton, 705. 
 V. Layton, 322. 
 V. Milburn, 756. 
 Powis V. Smith, 785. 
 Poynton v. Forster, 389. 
 Pratt I'. Parkinson, 370. 
 Preston v. Merceau, 655, 658, 662. 
 Preston's (Lord) case, 113. 
 Price V. Dewhurst, 355. 
 V. Edmunds, 660. 
 V. Green, 792. 
 V. Hollis, 277. 
 V. Littlewood, 303. 
 V. Moulton, 657. 
 V. Oldfield, 403. 
 V. Page, 650. 
 V. Seaward, 600. 
 
 V. Torrington (Lord), 64, 465, 494. 
 V. Woodhouse, 454, 529, 547. 
 Price's case, 448. 
 Prichard v. Powell, 187. 
 Prince v. Blackburn, 513, 519, 520. 
 
 V. Samo, 171, 234, 235, 252, 582. 
 Pritchard v. Bagshawe, 435, 506. 
 V. Draper, 443. 
 V. Hitchcock, 321. 
 V. Symonds, 543, 551, 554. 
 V. Powell, 48. 
 V. Walker, 646. 
 Pritt V. Fairclough, 494, 547, 569. 
 Proctor V. Lainson, 411, 412. 
 Prosser v. Gwillim, 486. 
 Provis V. Reed, 253, 512. 
 Prudham v. Phillips, 385, 403. 
 Pullen V. White, 614. 
 Pulley V. Hilton, 290. 
 Purcell V. Macnamara, 318. 
 Purnell v. Young, 819. 
 Pye's case, 636. 
 
 Pyke V. Crouch, 327, 408, 414, 485. 
 Pym V. Blackburn, 655. 
 Pyne v. Dor, 575. 
 
 Pytt V. Griffith, 514. 
 
 Quarterman v. Cox, 143. 
 
 Queen's (Thel case, 116, 213, 214, 216, 
 
 231, 232, 239, 240, 241, 242, 243, 244, 
 
 252, 423, 642, 643. 
 Quelch's case, 279. 
 Quin V. Shea, 346. 
 
 Radburn's case, 414. 
 Radnor (Lord) v. Reeve, 379, 401. 
 Ramadge v. Ryan, 176. 
 Rambert v. Cohen, 180, 729. 
 Ramkissensent v. Barker, 29, 31. 
 Ramsbottom v. Buckhurst, 438. 
 
 V. Tunbridge, 729, 731. 
 Randal v. Randal, 676. 
 Randall v. Gurney, 113, 114. 
 
 V. Lynch, 505. 
 Randle v. Blackburn, 444, 459, 582, 583. 
 Randolph v. Gordon, 526. 
 Raper v. Birkbeck, 355. 
 Ravee v. Farmer, 335. 
 Raven v. Hamilton, 570. 
 Rawlings v. Desborough, 581, 595, 600, 
 
 601, 611. 
 Rawson v. Haigh, 468. 
 
 V. Walker, 660. 
 Read v. Gamble, 561. 
 
 V. Jackson, 386, 759. 
 Rearden v. Minter, 567. 
 Reason and Tranter's case, 730. 
 Reed v. Jackson, 188,190,338,386,403,677. 
 V. James, 112. 
 V. Passer, 229. 
 Rees V. Bowen, 266, 447. 
 
 d. Howell V. Bowen, 432. 
 V. Mansell, 522, 523. 
 V. Smith, 606. 
 
 V. Walter, 24, 329, 525, 536. 
 Reeve v. Underbill, 598, 599. 
 Reeves v. Newenham, 666. 
 Reid V. Margison, 271. 
 Rendall v. Hayward, 803, 804. 
 Reniger v. Fogossa, 735. 
 Reusse v. Myers, 311. 
 Revett V. Brown, 810. 
 Rex aut Reg. v. Adderbury, 131. 
 
 V. Addis, 734. 
 
 V. Adey, 214, 611. 
 
 I'. Aickles, 308, 562. 
 
 V. Allgood, 454. 
 
 V. Allen, 594. 
 
 V. Antrobus, 188, 189, 308. 
 
 V. Appeals (Commissioners of ), 254. 
 
 V. Arundel, (Countess of), 431. 
 
 V. Atwood, 698, 734. 
 
 V. Austrey, 509. 
 
 V. Babb, 456. 
 
 V. Baker, 738. 
 
 V. Baldwin, 403. 
 
 V. Ball, 168, 800. 
 
 V. Balls, 622. 
 
 V. Barber, 204, 205.
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Rex y. Barber and others, 616. 
 V. Barnes, 394. 
 V. Barnett, 277. 
 V. Barnoldswick, 621. 
 V. Bathwick (Inhabitants of), 457, 
 
 737. 
 V. Bavnes, 268. 
 V. Beard, 612. 
 V. Bedell, 760. 
 V. Beezley, 194, 231. 
 V. Bell, 718. 
 V. Bellamy, 267, 391. 
 V. Bellringer, 699. 
 V. Bennett, 805. 
 V. Benson, 448. 
 V. Best, 383. 
 V. Bickley, 405. 
 V. Biers, 736. 
 V. Bignold, 613. 
 V. Billinghay, 651. 
 V. Bilmore, 129. 
 V. Birch, 267. 
 V. BisphaDQ, 238. 
 V. Blacksmith's Company, 738. 
 V. Blick, 368. 
 
 V. Bliss, 51, 89, 188, 468, 471. 
 V. Bodle, 195. 
 V. Bolton, 369, 400. 
 V. Borrett, 647. 
 V. Boston, 118, 119, 363, 364. 
 V. Boucher, 610. 
 V. Boutler, 734. 
 V. Bourdon, 320, 391. 
 V. Bourne, 738. 
 V. Bowler, 360, 407, 612. 
 V. Boynes, 579. 
 V. Brasier, 33. 
 V. Bray, 118. 
 V. Bromsgrove, 534. 
 V. Brooke, 196. 
 V. Broughton, 792. 
 V. Browne, 267, 391. 
 V. Brownell, 106, 107. 
 V. Buckworth, 423. 
 V. Budd, 761. 
 V. Buggs, 735. 
 V. Bull, 194. 
 
 V. Burbon (Inhabitants of), 366. 
 V. Burdett, 560, 803. 
 V. Burrows, 610. 
 V. Buttery and another, 339. 
 V. Buttery and Macnamara, 378, 400. 
 V. Cadogan (Earl of ), 455. 
 V. Cambridge (Chancellor of), 737. 
 V. Carey, 110. 
 V. Carlisle, 613, 
 V. Carr, 444. 
 
 V. Ca.stIeton, 532, 533, 534, 535, 543. 
 V. Cator, 174. 
 V. Catcrall, 383. 
 V. Chapman, 195. 
 V. Cheadlc (Inhabitants of), 651, 
 
 674, 726. 
 V. Chester (Bisliop of), 371. 
 
 Rexv. Chester (Mayor of), 697. 
 V. Chilverscoton, 383. 
 V. Christian, 268, 271. 
 V. Christopher, 230. 
 V. Clapham, 299. 
 V. Clarke, 252, 254, 469. 
 V. Clegg, 403. 
 V. Clewes, 617. 
 V. Cohen, 805. 
 V. Cole, 118. 
 V. College, 33. 
 V. CoUey, 199, 200. 
 V. Coode, 786. 
 V. Cook, 199. 
 V. Cooke, 106, 194. 
 V. Coombs, 594, 756. 
 V. Corsham, 383. 
 V. Cotton, 63, 403, 421. 
 V. Courvoisier, 612. 
 V. Cresswell, 646. 
 V. Crossley, 309. 
 V. Culpepper (Sir T.,) 541, 542. 
 V. Curtis, 231. 
 V. Darlington School (Governors of), 
 
 371, 401. 
 V. Davies, 697. 
 V. Davis, 308. 
 V. Debenham, 304. 
 V. De Berenger and others, 204, 278, 
 
 279, 738. 
 V. De la Motte, 562. 
 V. Denio (Inhabitants of), 534. 
 V. Dent, 175. 
 V. Donnall, 617. 
 V. Doran, 642. 
 V. Dossett, 617, 623. 
 V. Douglas, 424, 540. 
 V. Dukinfield, 495. 
 V. Duncombe, 184, 228. 
 V. Durham, 734. 
 V. Eardisland, 366, 367. 
 V. East Farleigh, 531, 537, 638. 
 V. Edmunds, 414. 
 V. Edwards, 206, 207, 211, 229. 
 V. Elderton, 735. 
 V. Elkins, 437. 
 V. Bllicombe, 555. 
 V. Ellis, 128, 623. 
 V. Ely (Bishop of), 371. 
 V. Entrehman, 29. 
 V. EriswcU, 49. 
 V. Erith, 35. 
 
 V. Essex (Justices of), 786. 
 V. Everett, 768, 786. 
 V. Evesham (Mayor of), 313. 
 V. Exeter County Treasurer, 106. 
 V. Fagg, 718. 
 V. Farringdon, 522. 
 V. Fitzgerald, 305. 
 V. Fitzpatrick, 31. 
 V. Fleet (Warden of), 331, 363. 
 V. Fletcher, 129. 
 V. Forsyth, 281, 739. 
 V. Foster, 88, 254, 469.
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Rex V. Fraser, 130. 
 V. Frederick, 130. 
 V. Fursey, 408. 
 V. Garbett, 41, 206, 207, 214. 
 V. Gardner, 280. 
 V. Gascoine, G12. 
 V. Gaskin (Dr.), 403. 
 V. Genge, 829. 
 V. George, 128. 
 V. Gibson, 339, 378, 507. 
 V. Gilliam, 31, 40, 628. 
 V. Gisburn, 144. •, 
 
 V. Goldshede, 441. 
 V. Goodere, 199. 
 V. Gordon, 267. 
 
 V. Gordon (Lord George), 204, 281. 
 V. Grant, 806. 
 V. Gray, 129. 
 V. Greep, 738. 
 V. Greenaway, 110. 
 V. Griffiths, 230. 
 V. Grimes, 328, 385. 
 V. Grimwood, 306. 
 V. Groombridge, 748. 
 V. Grundon, 371, 401. 
 V. Guttridge, 88, 254, 410, 468, 469. 
 V. Gwyn, 456. 
 
 V. Haines, 315, 395, 396, 454. 
 V. Hall, 468. 
 
 V. Hammersmith (Parish of), 49. 
 V. Hammond Page, 322, 390. 
 V. Hanson, 590. 
 V. Harberton, 552. 
 V. Harbin, 129. 
 V. Harborne, 594, 755. 
 V. Hardy, 193. 
 V. Hare, 740. 
 V. Hargrave, 734. 
 
 V. Harringworth, 504, 505, 507, 510. 
 V. Harris, 198, 321. 
 V. Harrow and Ryslip, 383. 
 V. Hartel, 612. 
 
 V. Haslingfield, 749, 756, 760, 818. 
 V. Hastings, 734. 
 V. Hawkins, 556, 594, 756. 
 V. Haworth, 555. 
 V. Hayes, 613. 
 V. Hazy, 594. 
 V. Hebden, 326, 384, 385. 
 V. Hedges, 180. 
 V. Heyford (Lower) Inhabitants of, 
 
 475. 
 V. Hickling, 383. 
 V. Higgins, 792. 
 V. Hilditch, 609. 
 V. Hill, 410, 512, 627. 
 V. Hinks, 128. 
 V. Hodgson, 205. 
 V. Hogg, 410, 696. 
 V. Holden, 195, 230. 
 V. Holt, 279. 
 V. Hopper, 573, 574. 
 (in aid of Reed) v. Hopper, 261. 
 V. Home, 613. 
 
 Rex V. Howard, G46. 
 V. Howe, 243. 
 V. Hube, 643. 
 V. Hucks, 790. 
 V. Hughes, 308. 
 V. Hunt, 563, 627. 
 V. Hes, 322, 390, 430. 
 V. Ipswich (Justices of), 738. 
 V. Jarvis, 590, 734. 
 V. Jefferies, 277. 
 V. Johnson, 88, 418, 537. 
 V. Joliffe, 409, 416. 
 V. Jones, 424, 507, 646, 734. 
 V. Jordan, 613. 
 V. Kenilworth, 383, 536, 541. 
 V. King, 270, 389. 
 V. Kingston (Duchess of), 185. 
 V. Kingston-upon-Hull, 729. 
 V. Kinloch, 184. 
 V. Kirby Stephen, 543. 
 V. Knaptoft, 338, 383. 
 V. Knill, 595. 
 V. Knollys, 736. 
 V. Koops, 737. 
 V. Lafone, 129. 
 V. Laindon, 651, 674, 727. 
 V. Lambe, 717. 
 V. Layer, 562. 
 V. Ledgard, 308. 
 V. Lee, 408. 
 V. Leeds, 384. 
 V. Leicester, 552. 
 V. Leigh, 189, 386. 
 V. Leominster, 367. 
 V. Lewis, 207, 209. 
 V. Lisle, 328, 384, 385. 
 V. Littleton, 612. 
 V. Liverpool (Mayor of), 309. 
 V. Llandillo, 758. 
 V. Llangunnor, 651, 674, 726. 
 V. Locker, 139. 
 V. Lockup, 27. 
 
 V. London (iMayor, &c., of), 131. 
 V. Long, 623. 
 V. Long Buckby, 524, 542. 
 V. Longnor (Inhabitants of), 510. 
 V. Lubbenham, 299. 
 V. Lucas, 454. 
 V. Luffe, 735, 752. 
 V. Lutton, 735. 
 V. Lyme Regis, 735. 
 V. Maddox and others, 246. 
 V. Malings, 611. 
 V. Mann, 805. 
 V. Marsh, 194. 
 V. Marshall, 410. 
 V. Martin, 303. 
 V. Mattingley, 672, 674. 
 V. Mead, 32, 437. 
 V. Megson, 88, 254, 469. 
 V. Merceron, 206. 
 V. Merthyr Tydvil, 729. 
 V. Middlezoy, 505, 565. 
 V. Mildrone, 31.
 
 xl 
 
 TABLE OF CASES. 
 
 Rex V. Miller, 699, 740. 
 
 V. Milton (Inhabitants of), 275. 
 
 V. Minns, 390. 
 
 V. Moors, 562. 
 
 V. Morpliew, 412, 423. 
 
 V. Morris, 448. 
 
 V. Mortlock, 267, 396. 
 
 V. Morton, 532, 533. 
 
 V. Motheringham, 544. 
 
 V. Mothersell, 309, 455, 456, 457. 
 
 V. Murlis, 196. 
 
 V. Murphy, 199, 646. 
 
 V. Muscot, 143, 144. 
 
 V. Nesbitt, 737. 
 
 V. Netherthong, 457, 458, 522, 525. 
 
 V. Newton, 646. 
 
 V. Nicholas, 117. 
 
 V. North Bedburn, 534. 
 
 V. Northfeatherton, 383. 
 
 V. North Petherton, 299. 
 
 V. North Wingfield, 651, 674. 
 
 V. Nutt, 792. 
 
 V. Gates, 204, 282. 
 
 V. Oddy, 622. 
 
 V. Oldbury, 383. 
 
 V. Oldroyd, 246. 
 
 V. Olney, 726. 
 
 V. Orchard, 195. 
 
 V. Orrell, 612. 
 
 V. Orton (Inhabitants of), 110. 
 
 V. Osborne, 88. 
 
 V. Osbourne, 697. 
 
 V. Owen, 130. 
 
 V. Padstow, 731. 
 
 V. Paget (Lord), 792. 
 
 V. Paine, 416. 
 
 V. Parker, 253, 734. 
 
 V. Pearce, 551, 558. 
 
 V. Pegler, 204. 
 
 V. Pembridge (Inhabitants of), 304. 
 
 V. Phillips, 371, 766, 785, 810. 
 
 V. Picton, 581. 
 
 V. Piddlehinton, 533. 
 
 V. Pike, 32, 117. 
 
 V. Pitre. See Rex v. Pike. 
 
 V. Poole, 779. 
 
 V. Powell, 30, 610. 
 
 V. Preston (Inhabitants of), 792. 
 
 V. Preston (Lord), 33. 
 
 V. Ramsbottoin, 396. 
 
 V. Ramsden, 184. 
 
 V. Ratcliffe, 367. 
 
 V. Rawden (Inhabitants of), 533, 651, 
 
 656. 
 V. Reader, 403. 
 aut. Reg. V. Reading, 206. 
 V. Reed, 645. 
 V. Rees, 647. 
 V. Reynell, 805. 
 V. Rhodes, 305, 339, 373. 
 V. Riciiards, 370. 
 V. Rider, 610. 
 V. Ridsdale, 469. 
 V. Ring, 105, 107. 
 
 Rex V. Roddam, 105. 
 V. Rogers, 594, 643. 
 V. Rosser, 816. 
 V. Rowley, 793. 
 V. Ruston, 114, 116. 
 V. Ryton, 526. 
 V. Sadler, 113. 
 
 V. St. Alban's (Mayor, &c. of), 697. 
 V. St. Andrew the Great Cambridge 
 
 804. 
 V. St. Ann's, Westminster, 335, 383. 
 V. St. George, 232, 252. 
 V. St. Helen's, in Abingdon, 531. 
 V. St. Katherine, 299. 
 V. St. Martin, Leicester, 178, 179, 511. 
 V. St. Mary, Lambeth, 383. 
 V. St. Mary Magdalen, 119. 
 V. St. Mary's, Nottingham, 205. 
 V. St. Pancras, 336, 345, 366, 389. 
 V. St. Peter's, Droitwich, 383. 
 V. St. Sepulciire, 535. 
 V. Sarratt, 383. 
 V. Savage, 410. 
 
 V. Scammonden, 673, 674, 725. 
 V. Schlesinger, 173. 
 V. Scott, 699. 
 V. Searle, 175. 
 V. Serva. 30, 116. 
 V. Seweli, 261, 295, 449. 
 V. Shaftesbury (Earl of), 206. 
 V. Sharpe, 738. 
 V. Shaw, 277, 322. 
 V. Shellard, 220, 224, 230. 
 V. Shelley, 454. 
 V. Sheppard, 762. 
 V. Sherman, 130. 
 V. Shinfield, 727. 
 V. Silchester, 383. 
 V. Sills, 139. 
 V. Simmonds, 194. 
 V. Skibthwaite, 501. 
 V. Slaney, 204. 
 V. Smith, 139, 267, 268, 367, 389, 
 
 391, 396, 414, 590, 730, 792. 
 V. Sow, 338, 340. 
 V. Spencer, 448. 
 V. Spragge, 562. 
 V. Stacey, 100. 
 
 V. Staffordshire (Justices of), 256. 
 V. Stamford, 647. 
 V. Stannard, 613. 
 V. Sterling, 339. 
 V. Stimpson, 609. 
 V. Stockton, 759. 
 V. Stoke, 674. 
 V. Stoke Golding, 539, 551. 
 V. Stoke-upon-Trent, 651, 712. 
 V. Stone, 590. 
 V. Stoncbeckup, 275. 
 V. Stourbridge, 534. 
 V. Stratford-upon-Avon (Mayor of), 
 
 697. 
 V. Stratton, 792. 
 V. Stoner, 195.
 
 TABLE OF CASES. 
 
 xli 
 
 Rex V. Sutton, 188, 189, 278, 280, 38G, 
 
 407, G27, 805. 
 V. Swatkins, 741. 
 V. Sympson, 738. 
 V. Tanner, 7B1. 
 V. Tawell, G17. 
 
 V. Taylor, 29, 30, 116, 231, 403. 
 V. Teale, 201. 
 V. Thring, 267. 
 V. Throgmorton, 33. 
 V. Thursfield, 612. 
 V. Tooke, 389. 
 V. Tower, 454. 
 V. Towsend, 367, 647. 
 V. Treble, 800. 
 V. Tucker, 117. 
 V. Turk, 398. 
 
 a. Turner, 106,367,374,448,590, 733. 
 V. Twyning, 594, 749, 755, 759. 
 V. Upper Boddington, 112. 
 V. Upton Gray, 758. 
 V. Upton St. Leonards, 423. 
 V. Utterby, 275. 
 V. Varlo, 694, 697. 
 V. Verelst, 646, 757. 
 V. Vickery, 646. 
 V. Vincent, 194, 339, 378. 
 V. Virrier, 734, 806. 
 V. Voke, 617. 
 
 V. Wakefield and anotlier, 143. 
 V. Walker, 118, 254, 469. 
 V. Wandsworth, 805. 
 V. Ward, 267, 391, 397. 
 V. Waslibrooke, 402. 
 V. Watson, 41, 115, 174, 192, 194, 
 
 201, 210, 213, 237, 238, 551, 555, 
 
 558, 563, 623. 
 V. Watts, 786. 
 V. Webb, 199, 734. 
 V. Welsh, 577. 
 V. Wheelock, 335, 338, 383, 
 V. Whiston, 749, 757. 
 V. Whitchurch (Inhabitants of), 522, 
 V. White, 30, 460. 
 V. Whiting, 118, 613. 
 V. Whittlebury, 778. 
 V. Wick. St. Lawrence, 338, 345, 383. 
 V. Wickham, 675, 726. 
 V. Wilde, 735. 
 V. Williams, 33, 117, 627. 
 V. Wilshaw, 410. 
 V. Witherby, 540. 
 V. Withers, 281. 
 V. Witney, 191. 
 V. Woburn, 131, 240. 
 V. Wood, 423, 424. 
 V. Woodchester, 383. 
 V. Woodfall, 776. 
 V. Woodhead, 231. 
 V. Woodley, 112. 
 V. Wooldale, 679. 
 V. Wooler, 806. 
 I). Worthing (Inhabitants of), 486, 
 
 491, 493, 729. 
 
 Rex V. Wrangle, 656, 729. 
 V. Wye, 38.!. 
 V. Wylde, 199. 
 V. Wylie, 623. 
 V. Yates, 734. 
 
 V. Yeovely, 267, 391, 393, 396. 
 V. Yewin, 213. 
 V. Yorkshire (Justices of East Riding 
 
 of), 786. 
 V. York (Mayor of), 384. 
 Reynolds v. Fenton, 358, 737. 
 
 V. Kennedy, 781. 
 Rhindv. Wilkinson, 548. 
 Ricardo v. Garcias, 333, 352, 354. 
 Rich V. Jackson, 659, 662, 664. 
 Richards v. Bassett, 190, 453. 
 
 V. Easto, 276. 
 Richardson v. Allen, 245. 
 
 V. Anderson, 268, 281. 
 V. Fell, 603. 
 V. Fisher, 805. 
 V. Hellish, 305, 306. 
 V. Watson, 654. 
 V. Williams, 364. 
 Rickards v. Murdock, 176. 
 Ridgway v. Ewbank, 600. 
 
 V. Philip, 615. 
 Ridley v. Gyde, 468. 
 Ridout V. Bristow, 659. 
 Rigby V. Walthew, 120. 
 Rigge V. Burbidge, 338. 
 Ripley v. Thompson, 121. 
 Rishton v. Nisbitt, 114. 
 Ritchie v. Bousfield, 802. 
 Roach V. Garvan, 380, 381, 383, 386. 
 Robb V. Starkey, 552. 
 Roberts v. Allat, 206. 
 V. Barker, 712. 
 V. Bradshaw, 548. 
 V. Croft, 809. 
 V. Doxon, 177, 645. 
 V. Eddington, 279. 
 V. Fortune, 349. 
 V. Hayward, 761. 
 V. Herbert, 627. 
 V. Hughes, 805. 
 V. Justice, 486. 
 Robertson v. French, 703. 
 
 V. Jackson, 653, 702, 705. 
 V. Money, 704. 
 V. Struth, 354. 
 Robins v. Cruchley, 377. 
 
 V. Maidstone (Lord), 451, 641. 
 Robin's case, 325, 339. 
 Robinson v. Brown, 559. 
 V. Cook, 801. 
 V. Gleadow, 800. 
 V. Lawrence, 807. 
 V. Macdonnell, 661. 
 V. Markis, 429. 
 Robinson's case, 337. 
 Robson V. Eaton, 324. 
 Roche V. Chapman, 603, 
 Roche's case, 383,
 
 xlii 
 
 TABLE OF CASES. 
 
 Roden v. Ryde, 448, 521. 
 Rodwell V. Redge, 757. 
 Roe d. Brune v. Rawlings, 486. 
 V. Davis, 508, 564. 
 V. Day, 237, 606, 609. 
 d. Haledame v. Harvey, 563,569, 847. 
 V. Ireland, 286. 
 V. Parker, 453. 
 
 d. Pellatt V. Ferrars, 445, 446. 
 V. Popham, 714. 
 V. Rawlings, 568. 
 V. Ward, 761. 
 V. Wilkins, 567. 
 Rogers v. Allen, 94, 454. 
 V. Custance, 560. 
 V. Goddard, 342. 
 V. Wood, 188, 360. 
 Rolf w. Dart, 271, 550. 
 Rolfe V. Hampden, 172. 
 RoUeston v. Hibbert, 661. 
 Rookwood's case, 209, 238. 
 Roscommon's (Earl of) case, 302. 
 Rose V. Blakemore, 213. 
 V. Bryant, 479. 
 V. Haycock, 784. 
 V. Savory, 582. 
 Roswell V. Bennett, 714. 
 Ross V. Hunter, 591. 
 Rothero v. Elton, 122. 
 Rouch V. Great Western Railv?ay Com- 
 pany, 467, 468. 
 Rowe V. Brenton, 177, 284, 287, 293, 407, 
 
 431, 434, 480, 609, 619, 645, 790. 
 Rowland v. Ashby, 719. 
 V. Bernes, 599. 
 Rowlands v. Samuel, 622. 
 Rowley's case, 433. 
 Rowntree v. Jacob, 719. 
 Roxburghe (Duke of) v. Roberton, 711. 
 Rudd V. Wright, 189. 
 Ruding V. Newell, 619. 
 Rush V. Peacock, 499. 
 
 V. Smith, 196, 197. 
 Rushworth v. Pembroke (Countess of), 
 
 329, 412. 
 Russell V. Dickson, 438, 737. 
 V. Dunskey, 729. 
 V. Smyth, 358, 448. 
 Rutland's (Countess of) case, 652, 662. 
 Rutter V. Chapman, 371. 
 
 Sadler v. Robins, 341. 
 Sage V. Robinson, 137. 
 St. George and St. Margaret, 760. 
 Sainthill v. Bound, 197. 
 Saloucci V. Woodmass, 380, 381. 
 Saltc V. Thomas, 308. 
 Salvador v. Hopkins, 703. 
 Sampson v. Tothili, 361. 
 Samuel v. Evans, 274. 
 Sanchar's (Lord) case, 385. 
 Sariilersoii v. Nestor, 335. 
 Sandwcll v. Sandwell, 180. 
 Saundcrson v. Pij)er, 654, 675. 
 
 Saville v. Farnhara, (Lord), 805. 
 
 V. Robertson, 022. 
 Saxby v. Kirkus, 274. 
 Saye and Sele, (Barony of), 545. 
 Sayer v. Glossop, 206, 299, 302, 448. 
 
 V. Kitchen, 560. 
 Sayer's case, 730. 
 Sayre v. Rockford, (Earl of), 618. 
 Scheibel v. Fairbain, 772. 
 Schmalz v. Avery, 665. 
 Scholes V. Chadwick, 486. 
 Scott V. Clare, 827. 
 
 V. Jones, 561. 
 
 V. Lewis, 448, 596, 599. 
 
 V. Shearman, 378. 
 
 V. Waithman, 568. 
 
 V. Watkinson, 805. 
 Seago V. Deane, 716. 
 Scale V. Evans and another, 615. 
 Searle v. Barrington (Lord), 478, 479, 
 
 750. 
 Seddon v. Tutop, 335, 336. 
 Selby V. Harris, 449. 
 
 V. Hills, 114. 
 Sells V. Hoare, 117. 
 Senior v. Armitage, 711. 
 Sergeson v. Sealy, 289, 380, 406. 
 Serjeant v. Chafy, 800. 
 Sewell V. Corp, 295. 
 
 V. Evans, 448, 521. 
 Seymour's (Sir E.) case, 544, 568. 
 Sharp V. Scoging, 238. 
 Sharpe v. Lamb, 554. 
 Shatter v. Friend, 734. 
 Shaw V. Roberts, 790. 
 Shearm v. Burnard, 340. 
 Shelburne v. Inchiquin, 675. 
 Shelling v. Farmer, 659. 
 Shelton v. Cross, 737. 
 
 V. Livius, 656, 664. 
 Shepherd v. Chester, (Bishop of), 807. 
 V. Shepherd, 715. 
 V. Shorthose, 259, 395. 
 Shepherdess (case of the), 382. 
 Sheppard v. Gosnold, 699. 
 Shergold v. Boone, 677. 
 Sherriff y. Cadell, 311, 312. 
 Sherwin v. Charges, 322, 337, 408, 415. 
 Shillito w.Claridge, 429. 
 Shipton V. Thornton, App. 
 Shore v. Wilson, 702. 
 Short V. Lee, 474, 476, 477, 482, 647. 
 Shute V. Robins, 770. 
 Shuttle worth v. Nicholson, 611. 
 Sidaway v. Hay, 346. 
 Sideways v. Dyson, 224, 561. 
 Siebert v. Spooner, 784. 
 Sills V. Brown, 175. 
 Simons v. Henderson, 427. 
 V. Johnson, 722. 
 V. Smith, 120. 
 Simpson v. Clayton, 807. 
 
 V. Dismore, 448, 521. 
 V. Henderson, 659.
 
 TABLE OF CASES. 
 
 xliii 
 
 Simpson v. Margitson, G53, 702, 709, 787. 
 V. Pickering, 329. 
 V. Smith, 196. 
 V. Thoreton, 543, 563. 
 Sims V. Kitchen, 557. 
 Sinclair v. Baggaley, 502, 758. 
 V. Fraser, 346, 347. 
 V. Sinclair, 131, 132, 137, 324. 
 V. Stevenson, 184, 553. 
 Singleton v. Barrett, 729. 
 Sissons V. Dixon, 757. 
 Skilbeck v. Garbett, 763. 
 Skipwith V. Green, 461, 720. 
 
 V. Shirley, 544. 
 Slade's case, 737. 
 Slane Peerage, 271, 273, 287, 527, 545, 
 
 550. 
 Slaney v. "Wade, 190. 
 Slark V. Highgate Archway Company, 
 
 729. 
 Slater v. Hodgson, 524. 
 Slatterie v. Pooley, 506, 648, 729, 827. 
 Smart v. Hyde, 656. 
 
 V. Prujean, 663. 
 
 V. Rayner, 600. 
 Smartle v. Williams, 495, 574, 575. 
 Smith V. Beadnell, 206, 214. 
 
 V. Boucher, 738. 
 
 V. Bradshaw, 636. 
 
 V. Buchanan, 346. 
 
 V. Cartwright, 647, 758. 
 
 V. Doe d. Jersey, 772, 774. 
 
 V. East India Company, 42, 192, 
 256. 
 
 V. Fuge, 310. 
 
 V. Gibson, 333. 
 
 V. Harris, 118. 
 
 V. Henderson, 448. 
 
 V. Hixon, 627. 
 
 V. Jeffreys, 702. 
 
 V. Johnson, 335. 
 
 V. Lyon, 763. 
 
 V. Martin, 451, 592, 593. 
 
 V. Morgan, 180, 181. 
 
 V. Nicholls, 403. 
 
 V. Nicolls, 341, 353. 
 
 V. Page, 803. 
 
 V. Prager, 118, 122. 
 
 V. Royston, 334. 
 
 V. Rummens, 332, 364, 365. 
 
 V. Sleap, 615, 790. 
 
 V. Thompson, 786. 
 
 V. Veale, 416. 
 
 V. Walton, 659, 713. 
 
 V. Whittingham, 474. 
 
 V. Wilkins, 619. 
 
 V. Wilson, 654, 702, 712. 
 
 V. Woodward, 500. 
 
 V. Young, 459, 557. 
 Smithson's (Sir Hugh), case, 406. 
 Smyth V. Latham, 797. 
 Snaith v. Mingaj', 674. 
 Snook V. Mattock, 792. 
 Snow V. Phillips 439. 
 
 Snowball v. Vicaris, 725. 
 Solly V. Hinde, 660, 661. 
 Solomons v. Campbell, 183. 
 Somerset (Duke of), v. France, 619. 
 Southampton Dock Company v. Richards, 
 
 313. 
 Southey v. Nash, 199. 
 Soward v. Leggatt, 602. 
 Sowell V. Champion, 803. 
 Spargo V. Brown, 85, 464, 474. 
 Sparing v. Drax, 444. 
 Sparkes v. Barratt, 615. 
 Sparry's case, 333. 
 Spence v. Stuart, 113, 114. 
 Spencer i;. Billing, 177, 645. 
 
 V. Goulding, 122. 
 Spicer V. Burgess, 502. 
 
 V. Cooper, 653, 705. 
 Spiers v. Morris, 484. 
 
 V. Parker, 590, 759. 
 Spilsbury v. Micklethwaithe, 627. 
 Spink V. Tenant, 736. 
 Spooner v. Gardiner, 606, 607. 
 
 V. Payne, 514, 516. 
 Spring V. Eve, 277, 735. 
 Stafford v. Clarke, 335. 
 Stafford's (Lord) case, 201. 
 Stainer v. Droitwich (Burgesses of), 314. 
 Stammers v. Dixon, 699, 701, 787. 
 Stamp V. Ayliffe, 285. 
 StancliflFe v. Clarke, 806. 
 Standen v. Standen, 670, 685, 754. 
 Stanley v. Fielden, 583. 
 
 V. White, 620. 
 Stanton v. Paton, 599. 
 
 V. Styles, 359. 
 Stapleton v. Croft, 141, 142. 
 Startup V. Macdonald, 774, 780. 
 Statutes : 
 
 4 Edw. 1, 287, 288, 292, 407, 408. 
 34 Edw. 3, c. 13, 404. 
 
 36 Edw. 3, c. 13, 404. 
 46 Edw. 3, 256. 
 
 9 Hen. 6, c. 11, 372. 
 23 Hen. 6, c. 9, 274. 
 
 1 Hen. 8, c. 8, 288, 403. 
 21 Hen. 8, c. 13, 285. 
 
 27 Hen. 8, c. 16, 573. 
 
 2 & 3 Edw. 6, c. 1, 738. 
 2 & 3 Edw. 6, 0. 8, 404. 
 
 5 & 6 Edw. 6, c. 1, 738. 
 
 1 & 2 Phil. & Mary, c. 10, 38. 
 
 1 & 2 Phil. & Mary, c. 13, 61. 
 
 2 & 3 Phil. & Mary, c. 10, 61. 
 2 & 3 Phil. & Mary, c 13, 38. 
 5 Eliz. c. 4, 277. 
 
 5 Eliz. c. 9, 103, 104. 
 27 Eliz. c. 9, s. 8, 259. 
 
 1 Jac. 1, c. 11, 744. 
 
 4 Jac. 1, c. 1, 33. 
 21 Jac. 1, c. 16, 750. 
 21 Jac. 1, c. 27, 744. 
 13 & 14 Car. 2, c. 4, 756. 
 19 Car. 2, c. 6, 744.
 
 xliv 
 
 TABLE OF CASES. 
 
 Statutes : — continued. 
 29 Car. 2, c. 3, 459. 
 
 3 &4 W. & M. c. 11, 131. 
 
 4 & 5 Will. 3, c. 23, 771. 
 
 7 Will. 3, c. 3, 33, 107, 610. 
 
 7 & 8 Will. 3, c. 7, 295. 
 
 8 & 9 Will. 3, c. 30, 508. 
 
 9 & 10 Will. 3, c. 15, 399, 505. 
 1 Anne, c. 9, s. 3, 34, 106. 
 
 1 Anne, c. 18, 131. 
 
 4 & 5 Anne, c. 16, 274. 
 
 5 Anne, c. 14, 771. 
 
 7 Anne, c. 20, 504, 577. 
 
 10 Anne, c. 18, 574, 576. 
 
 4 Geo. 2, c. 28, 483. 
 
 5 Geo. 2, c. 30, 418. 
 
 8 Geo. 2, c. 6, 576. 
 
 8 Geo. 2, c. 16, 131. 
 
 9 Geo. 2, c. 36, 294. 
 
 11 Geo. 2, c. 19, 449. 
 17 Geo. 2, c. 38, 304. 
 
 19 Geo. 2, c. 37, 790. 
 24 Geo. 2, c. 23, 738. 
 26 Geo. 2, c. 33, 297. 
 
 2 Geo. 3, c. 22, 304. 
 13 Geo. 3. c. 31, 105. 
 
 13 Geo. 3, c. 63, 424, 427. 
 
 20 Geo. 3, c. 57, 521. 
 26 Geo. 3, c. 77, 647. 
 
 26 Geo. 3, c. 82, 647. 
 
 27 Geo. 3, c. 29, 131. 
 34 Geo. 3, c. 64, 383. 
 
 41 Geo. 3, c. 90, 276. 
 
 42 Geo. 3, c. 46, 304. 
 42 Geo. 3, c. 85, 424. 
 
 42 Geo. 3, c. 107, 594. 
 
 43 Geo. 3, c. 140, 104. 
 
 44 Geo. 3, c. 92, 105. 
 
 44 Geo. 3, c. 102, 104. 
 
 45 Geo. 3, c. 92, 105. 
 
 45 Geo. 3, c. 126, 204. 
 
 46 Geo. 3, c. 37, 203, 205. 
 
 47 Geo. 3, c. 1, 418. 
 
 47 Geo. 3, c. 68, 307. 
 
 48 Geo. 3, c. 149, 455. 
 
 49 Geo. 3, c. 121, 418. 
 
 50 Geo. 3, c. 48, 311. 
 
 52 Geo. 3, c. 146, 297, 302, 303. 
 
 53 Geo. 3, c. 70. See 54 Geo. 3, c. 70. 
 
 54 Geo. 3, c. 15, 424. 
 
 54 Geo. 3, c. 70, 127, 131. 
 54 Geo. 3, c. 137, 346. 
 54 Geo. 3, c. 170, 204, 
 58 Geo. 3, c. 45, 280. 
 
 58 Geo. 3, c. 69, 205. 
 
 59 Geo. 3, c. 12, 419. 
 
 1 Geo. 4, c. 101, 424. 
 1 & 2 Geo. 4, c. 21, 204. 
 
 3 Geo. 4, c. 126, 500. 
 
 4 Geo. 4, c. 76, 297. 
 B Geo. 4, c. 96, 127. 
 
 5 & 6 Geo. 4, c. 84, 295. 
 
 6 Geo. 4, c. 16, 550. 
 G Geo. 4, c. 50, .'119. 
 
 Statutes : — continued, 
 
 6 Geo. 4, c. 80, 418. 
 
 7 Geo. 4, c. 57, 398. 
 
 7 Geo. 4, c. 64, 34, 38, 61, 105, 106, 
 
 416, 417, 433, 719. 
 7 & 8 Geo. 4, c. 27, 594. 
 7 & 8 Geo. 4, c. 28, 295, 405. 
 7 & 8 Geo. 4, c. 29. 131. 
 7 & 8 Geo. 4, c. 30J 398. 
 7 & 8 Geo. 4, c. 53, 647. 
 9 Geo. 4; c. 14, 826. 
 9 Geo. 4, c. 15, 633. 
 9 Geo. 4, c. 31, 365. 
 9 Geo. 4, c. 32, 32. 
 9 Geo. 4, c. 40, 383. 
 9 Geo. 4, c. 56, 398. 
 1 Will. 4, c. 22, 424, 434. 
 
 1 & 2 Will. 4, c. 56, 739. 
 
 2 Will. 4, c. 1, 283. 
 
 2 & 3 Will. 4, c. 39, 362, 438. 
 
 2 & 3 Will. 4, c. 42, 809. 
 
 2 & 3 Will. 4, c. 64, 738. 
 
 2 & 3 Will. 4, c. 71, 750. 
 
 2 & 3 Will. 4, c. 114, 264, 418, 739. 
 
 2 & 3 Will. 4, c. 120, 311. 
 
 3 & 4 Will. 4, c. 27, 490. 
 
 3 & 4 Will. 4, c. 42, 24, 109, 124, 134, 
 
 325, 388, 634, 742, 750. 
 3 & 4 Will. 4, c. 49, 32. 
 3 & 4 Will. 4, c. 53, 127. 
 3 & 4 Will. 4, c. 82, 33. 
 
 3 & 4 Will. 4, c. 93, 306. 
 
 4 & 5 Will. 4, c. 75, 309. 
 
 4 & 5 Will. 4, c. 76, 109, 739. 
 
 5 & 6 Will. 4, c. 19, 307. 
 
 5 & 6 Will. 4, c. 62, 414, 416. 
 
 5 & 6 Will. 4, c. 76, 438, 458. 
 
 6 & 7 Will. 4, c. 71, 109. 
 6 & 7 Will. 4, c. 76, 307. 
 
 6 & 7 Will. 4, c. 86, 297, 299, 302, 
 
 739. 
 6 & 7 Will. 4, c. 89, 106. 
 6 & 7 Will. 4, c. 106, 739. 
 
 6 & 7 Will. 4, c. 114, 319, 610, 612. 
 
 7 Will. 4 & 1 Vict. c. 22, 209. 
 
 7 Will. 4 & 1 Vict. c. 26, 126, 511, 
 
 513, 667, 688, 715. 
 7 Will. 4 & 1 Vict. c. 68, 106. 
 7 Will. 4 & 1 Vict. c. 73. 
 1 Vict. c. 26, 156. 
 1 Vict. 0. 44, 106. 
 1 Vict. c. 76, 371. 
 1 Vict. c. 78, 458. 
 1 & 2 Vict. c. 77, 33. 
 1 & 2 Vict. c. 94, 255, 258, 262, 739. 
 1 & 2 Vict. 0. 105, 30, 31. 
 1 & 2 Vict. c. 110, 108, 205. 
 3 & 4 Vict. c. 26, 127, 131. 
 3 & 4 Vict. c. 65, 792. 
 3 & 4 Vict. c. 92, 299, 300. 
 3 & 4 Vict. c. 110, 127. 
 5 & 6 Vict. c. 69, 428. 
 5 & 6 Vict. c. 79, 311. 
 5 & 6 Vict. c. 84, 406.
 
 TABLE OF CASES. 
 
 xlv 
 
 Statutes : — 
 
 con 
 
 tinued. 
 
 
 
 
 
 5 & 6 Vict. 
 
 c. 
 
 100 
 
 , 739. 
 
 
 
 
 5 & 6 V 
 
 ict. 
 
 c. 
 
 116 
 
 , 108, 
 
 504 
 
 , 739 
 
 
 6 & 7 V 
 
 ct. 
 
 c. 
 
 18, 
 
 308. 
 
 
 
 
 6 & 7 Vict. 
 
 c. 
 
 65, 
 
 739. 
 
 
 
 
 6 & 7 Vict. 
 
 c 
 
 85 
 
 22, 
 
 25, 
 
 118, 
 
 125, 
 
 131 
 
 513. 
 
 
 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 G5, 
 
 283. 
 
 
 
 
 V & 8 V 
 
 ict. 
 
 c. 
 
 81, 
 
 302. 
 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 96, 
 
 108. 
 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 101 
 
 ,281, 
 
 734 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 110 
 
 , 456. 
 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 112 
 
 , 307. 
 
 
 
 
 7 & 8 V 
 
 ct. 
 
 c. 
 
 113 
 
 , 307. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 10, 
 
 734. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 16, 
 
 127, 
 
 457. 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 18, 
 
 127. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 20, 
 
 127. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 48, 
 
 34. 
 
 
 
 
 8& 9 V 
 
 ct. 
 
 c. 
 
 85, 
 
 647. 
 
 
 
 
 8 &9 V 
 
 ct. 
 
 c. 
 
 87, 
 
 647. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 89, 
 
 310. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 93, 
 
 647. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 100 
 
 , 406. 
 
 
 
 
 8 & 9 V 
 
 ct. 
 
 c. 
 
 106 
 
 , 459. 
 
 
 
 
 8 & 9 \ 
 
 act 
 
 
 c. 113, 269, 
 
 277, 
 
 279, 
 
 281 
 
 282 
 
 , 297, 388, 
 
 735, 
 
 736, 
 
 740. 
 
 8 & 9 Vict. c. 118, 109. 
 
 9 & 10 Vict. c. 95, 27, 39, 108, 127, 
 
 140, 265, 396, 739. 
 
 10 & 11 Vict. c. 82, 398. 
 10 & 11 Vict. c. 102, 108. 
 
 10 & 11 Vict. c. 104, 109. 
 
 11 & 12 Vict. c. 42, 105, 107, 108, 
 
 110, 408, 433, 651, 719. 
 11 & 12 Vict. c. 43, 110, 398. 
 
 c. 44, 370, 397, 398, 
 
 11 & 12 Vict. 
 
 401. 
 11 & 12 Vict. 
 11 & 12 Vict. 
 
 11 & 12 Vict. 
 
 12 Vict. c. 11 
 12 & 13 Vict. 
 
 c. 59, 398. 
 c. 70, 260. 
 c. 83, 283. 
 398. 
 c. 29, 310. 
 
 12 & 13 Vict. c. 68, 302. 
 12 & 13 Vict. c. 106, 34, 108, 110, 
 264, 401, 418. 
 
 12 & 13 Vict. c. 109, 258, 261, 262. 
 
 13 Vict. c. 5, 109. 
 
 13 & 14 Vict. c. 7, 311. 
 13 & 14 Vict. c. 21, 278. 
 
 13 & 14 Vict. c. 93, 306, 307, 
 
 565. 
 
 14 & 15 Vict. c. 6, s. 16, 295. 
 14 & 15 Vict. c. 90, 499. 
 14 & 15 Vict. c. 99, 28, 140, 
 
 281, 310, 388, 391, 399, 411, 513, 
 
 739, 740. 
 14 & 15 Vict. c. 100, 637. 
 Stead V. Heaton, 65, 480. 
 Steadman v. Duhamel, 674. 
 Stedman v. Gooch, 393. 
 Steel V. Prickett, 187. 
 Steele v. Mart, 666. 
 
 427, 
 
 271, 
 
 Steinkeller v. Newton, 180, 425, 426, 
 
 434. 
 Stennel v. Hogg, 747. 
 Stephen v. Gwenap, 474. 
 Stevens v. Aldridge, 799. 
 
 V. Clarke, 370. 
 Stewart w. Barnes, 124, 125. 
 
 V. Lawton, 696. 
 Still V. Halford, 449. 
 Stirling's case, 400. 
 Stebart v. Dryden, 191, 215, 240, 253, 
 
 512. 
 Stock V. Denew, 416. 
 Stockdale o. Hansard, 349, 360. 
 Stockfleth V. De Tastet, 206, 214. 
 Stoddard v. Palmer, 629. 
 Stodden v. Harvey, 772, 773. 
 Stokes V. Bate, 400. 
 
 V. Carne, 310. 
 Stone V. Bale, 720. 
 
 V. Blackburn, 115. 
 V. Metcalf, 507. 
 Stones V. Byron, 611. 
 Stroke v. Storke, 668, 
 Strothert v. James, 486. 
 Stracy v. BlaKe, 641. 
 Straker v. Graham, 776, 780. 
 Stratford's case, 371. 
 Stratton v. Rastall, 660, 719. 
 Streeter v. Bartlett, 449, 504. 
 Strickland v. Ward, 369. 
 Strode v. Falkland, 669. 
 
 V. Russell, 670. 
 Strode v. Winchester, 474. 
 Strong V. Dickenson, 113. 
 Strother v. Barr, 642. 
 
 V. Hutchinson, 791, 792, 797, 
 
 809. 
 V. Willan, 311. 
 Strutt V. Bovington, 328, 330, 336, 409. 
 Stuart V. Barnes. See Stewart v. Barnes. 
 V. Greeuall, 291. 
 V. Rogers, 810. 
 Studdy V. Sanders, 447. 
 Sturge V. Buchanan, 235, 548, 558, 560, 
 
 580, 582. 
 Sturm V. Jaffier, 557. 
 Style V. Wardle, 665, 720. 
 Summers v. Moseley, 196. 
 Suramersett v. Adamson, 827. 
 Surtees v. Hubbard, 558. 
 Sussex (Earl of) v. Temple, 444. 
 Sussex Peerage case, 63, 175, 176, 465, 
 
 474, 480, 492, 512. 
 Sutton St. Nicholas v. Leverington, 383. 
 
 V. Temple, 708. 
 Swain V. Kennerley, 687. 
 
 V. Lewis, 558. 
 Sweetapple v. Jesse, 747. 
 Swinnerton w. Stafford (Marquis of), 292, 
 
 526. 
 Swire v. Bell, 513, 521. 
 Syers v. Bridge, 176, 702. 
 V. Jonas, 713.
 
 xlvi 
 
 TABLE OF CASES. 
 
 Sykes v. Dunbar, 193. 
 Sylvester v. Hall, 606. 
 Symes v. Larby, 808. 
 Symmers v. Regem, "796. 
 
 Talbot V. Hodson, 509, 510, 511, 518, 
 530, T28. 
 V. Lewis, 443. 
 Tamm v. Williams, 358. 
 Tanner v. Bean, 626. 
 
 V. Taylor, 180, 185. 
 Taplin v. Atty, 583. 
 Tapp V. Lee, 763. 
 Tarleton v. Tarleton, 351. 
 Tatlock V. Harris, 798. 
 Taylor v. Barclay, 739. 
 V. Briggs, 705. 
 V. Clerason, 321, 370. 
 V. Cohen, 654. 
 V. Cole, 439. 
 V. Cooke, 760. 
 V. Devey, 304. 
 V. Jones, 574. 
 V. Lawson, 199. 
 V. Osborne, 565. 
 V. Parry, 621. 
 V. Willans, 95, 797. 
 Ex parte, 300. 
 Tebbutt V. Selby, 759. 
 Teed v. Martin, 310, 543. 
 Temperley v. Scott, 432. 
 Tennant v. Hamilton, 200. 
 Terry v. Huntington, 379. 
 Tewkesbury (Bailiff's of) y. Bricknell,697. 
 Thacker v. Moates, 753. 
 Thanet (Lord) v. Forster, 289. 
 Thellusson v. Costing, 279. 
 Theobald v. Treggott, 122. 
 Thelford case, 309, 455. 
 
 (Mayor of) v. Tyler, 761. 
 Thomas v. Ansley, 390. 
 V. Connell, 468. 
 V. David, 199, 200, 201. 
 V. Fraser, 676, 703. 
 d. Evans v. Thomas, 684, 685, 
 
 686. 
 V. Jenkins, 49, 186, 187. 
 V. Newton, 214. 
 V. Tucker, 205. 
 Thomkins v. Hill, 800. 
 Thompson v. Blackhurst, 359. 
 V. Donaldson, 339. 
 V. Giles, 766. 
 V. Trcvanion, 254, 469. 
 Thomson v. Southwell, 738. 
 Thorpe v. Barber and another, 131. 
 
 V. Ifowden, 792. 
 Thornton v. Royal E.xchange Assurance 
 
 Conii)any, 174. 
 Thoroughgood's case, 510. 
 Thresh v. Rake, 725. 
 Tiirogmorton v. Walton, 761. 
 Til uric V. Madison, 576. 
 Thurston v. Dclahay, 513. 
 
 Thurston v. Slatford, 791, 792. 
 
 Tickle V. Brown, 471, 487. 
 
 Tidmus v. Lees, 342. 
 
 Tiley v. Cowling, 362. 
 
 Tilley's case, 409, 411. 
 
 Tindal v. Brown, 774, 776, 777, 780. 
 
 Tinkler v. Walpole, 310, 574, 575. 
 
 Tinkler's case, 800. 
 
 Tinney v. Tinney, 652. 
 
 Title V. Grevet, 204. 
 
 Tod V. Winchelsea (Earl of), 191, 433. 
 
 Todd V. Maxfield, 324, 342. 
 
 V. Stewart, 335. 
 Toll V. Lee, 506. 
 Tomkins v. Ashby, 452. 
 
 V. Attorney-General, 306. 
 Tooker v. Beaufort (Duke of), 259, 287. 
 
 V. Beaufort, 421. 
 Tooke's case, 268. 
 Toomes v. Etherington, 405. 
 Topham v. McGregor, 177, 183, 645. 
 Toosey v. Williams, 548, 551. 
 Torrington's case, 76, 493. 
 Touissant v. Martinnant, 667. 
 Towers v. Moore, 675, 678. 
 Townend v. Downing; 121. 
 Toymbee v. Brown, 290. 
 Tracy Peerage case, 174, 838. 
 Travis v. Chaloner, 330, 444. 
 Tregany v. Fletcher, 737. 
 Trelawney v. Coleman, 759. 
 Trelawny v. Colman, 469. 
 Trethewy v. Ackland, 402. 
 Trevivan v. Lawrence, 343, 461, 462. 
 Trewhitt v. Lambert, 541, 656, 729. 
 Trimlestown (Lord) i;. Kemmis, 325, 441, 
 
 485, 487, 492, 523, 529, 580, 795. 
 Trimmer v. Bayne, 714. 
 Trist V. Johnson, 555. 
 Truyman v. Loder, 665, 707, 751. 
 Tucker v. Inman, 737. 
 
 V. Wilkins, 293, 315. 
 Tufton V. Whitmore, 414, 432, 434. 
 Turner?;. Ambler, 782, 783. 
 
 V. Crisp, 479, 750. 
 
 V. Deane, 722. 
 
 V. Merry weather, 109. 
 
 V. Pearte, 115, 143, 144, 145. 
 Twyne's case, 784. 
 Tyler's case, 786. 
 Tyrrell v. Holt, 595. 
 Tyrrwhit v. Wynne, 550, 568, 619. 
 
 Udall V. Walton, 136. 
 Uhde V. Walters, 661, 704. 
 Uncle V. Watson, 65. 
 Underbill v. Durham, 286. 
 
 V. Witts, 643. 
 Upton V. Curtis, 120, 133. 
 Urquhart \'. Barnard, 702. 
 
 Vacher v. Cocks, 89, 467, 568. 
 Vaillant v. Dodemead, 40. 
 Vain V, Whittington, 572.
 
 TABLE OF CASES. 
 
 xlvii 
 
 Valine V. Dumergue, 358. 
 
 Vanderdonckt v. Thelluson, 17G. 
 
 Van Nyvel v. Hunter, 806. 
 
 Van Sandau v. Turner, 737. 
 
 Vane's (Sir H.) case, 792. 
 
 Van Onieron v. Dowick, 2 79, 757, 763. 
 
 Varicas v. French, 412, 429, 518. 
 
 Vauglian v. Martin, 180. 
 
 Vaux Peerage, 282, 302, 314. 
 
 Venafra v. Johnson, 717, 719. 
 
 Vere v. Lewis, 798. 
 
 Vernon v. Hankey, 802. 
 
 Vernon's case, 660. 
 
 Vice V. Anson (Lady), 555. 
 
 Villers v. Bearaont, 660, 723. 
 
 V. Villers, 543. 
 Vincent v. Cole, 642, 656. 
 Vines v. Reading (Corporation of), 797. 
 Vooght V. Winch, 323, 326, 343, 344. 
 Vowles V. Miller, 626. 
 
 Wade V. Simeon, 135, 145. 
 Wadley v. Bayliss, 700. 
 Wagstaff v. Wilson, 572. 
 Wainwright v. Clement, 784, 
 Wakeman v. West, 290, 472, 473. 
 Walburgh v. Saltonstall, 731. 
 Waldron v. Coombe, 279, 295. 
 Walker v. Beauchamp, 303, 535. 
 
 V. Broadstock, 471, 490. 
 
 V. Burnell, 786. 
 
 V. Collick, 435. 
 
 V. Giles, 133, 134. 
 
 V. Walker, 678. 
 
 V. Wingfield, 298. 
 
 V. Wittur, 346, 347, 351, 381. 
 Wallace (Administrator) v. Cook, 305. 
 Waller v. Prakeford, 808. 
 
 V. Horsfall, 541, 570. 
 Wallis V. Delancey, 513, 515, 519, 520. 
 
 V. Atcheson, 237. 
 Walpole (Lord) v. Cholmondeley (Lord), 
 
 692. 
 Walsh V. Stockdale, 467. 
 
 V. Trevannion, 676. 
 Walter v. Haynes, 763. 
 
 V. Thompson, 136. 
 Walters v. Lewis, 468. 
 
 V. Rees, 114. 
 Walton V. Shelley, 728. 
 Ward V. Man, 128. 
 
 V. Mason, 808. 
 V. Wells, 412, 513, 518. 
 Warden v. Fermor, 516. 
 Waring v. Bowles, 514. 
 Warren v. Greenville, 474. 
 
 V. Stagg, 663, 725. 
 Warringer v. Giles, 309. 
 Washington v. Brymer, 750. 
 Watkins v. Towers, 806. 
 Watson V. Bevern, 204. 
 
 V. King, 305. 
 
 V. Moore, 580, 581. 
 
 V. Peache, 786. 
 
 Watson's case, 167, 194, 215. 
 Waugh V. Bussell, 501. 
 Weaver v. Clifford, 737. 
 Webb V. Plummer, 712. 
 V. Pritchett, 435. 
 V. Salmon, 660, 666. 
 V. Smith, 244. 
 V. Taylor, 114. 
 Webber v. Budd, 130. 
 Wedgworth v. Hartley. See Wedgwood 
 
 V. Hartley. 
 Wedgewood v. Hartley, 120. 
 Wedrington's (Dr.) case, 401. 
 Weeks v. Sparke, 46, 48, 50, 187. 
 Weld ('. Hornby, 696, 697. 
 Weller v. Foundling Hospital (Governors 
 
 of), 131. 
 Wells Harbor case, 621. 
 
 V. Jesus College, Oxford, 189. 
 V. Williams, 31. 
 Welsh's case, 417. 
 Welstead v. Levy, 788. 
 West V. Baxendale, 782. 
 V. Blakely, 657. 
 V. Steward, 502. 
 West's case, 205. 
 Weston V. Ernes, 661. 
 
 V. Vaughton, 285. 
 Wey V. Yelley, 737. 
 Wetherston v. Edginton, 565, 572. 
 Wharam v. Routledge, 561, 580. 
 Wharton v. Mackenzie, 773. 
 
 Peerage case, 278, 392, 441. 
 Whately v. Menheim and Levy, 331. 
 Wheeler v. Alderson, 175. 
 
 V. Atkins, 432, 580. 
 V. Lowth, 392. 
 V. Senior, 137. 
 Whitaker v. England (Bank of), 90. 
 V. Izod, 1 11. 
 V. Tatham, 713. 
 Whitbread v. May, 693. 
 White V. Beard, 315. 
 
 V. Parkins, 657, 717. 
 V. Sayer, 711. 
 Whitehead v. Scott, 90, 561, 
 
 V. Wynn, 300. 
 Whitelock v. Musgrove, 520. 
 Whitfield V. Aland, 180, 235, 560. 
 
 V. Brand, 729, 731. 
 Whitford v. Tutin, 499, 554. 
 WHiittington v. Boxall, 819, 
 Whitmore v. Wilks, 119. 
 Whitnash v. George, 481. 
 Whittiiker v. Mason, 708. 
 Whittingham v. Bloxham, 609. 
 Whittuck V. Waters, 300, 
 Whitwell V. Scheer, 636. 
 Whyte V. Rose, 400. 
 Widdrington's (Dr.) case, 371. 
 Wigglesworth v. Dallison, 711. 
 Wihen v. Law, 254, 299. 
 Wilder's case, 689. 
 Wiles V. Woodman, 659.
 
 xlviii 
 
 TABLE OF CASES. 
 
 "Wiles V. Woodward, 461. 
 Wilkes V. Hopkins, 505, 572, 573. 
 Wilkinson, v. Adam, 689. 
 V. Gordon, 362. 
 V. Johnson, 255. 
 ■ V. Payne, 754, 804. 
 Willans v. Taylor, 796. 
 Williams v. Bagot (Lord), 359, 403. 
 V. Bryant, 679. 
 V. Davies, 596, 607. 
 u.East India Company, 593, 732, 
 
 756, 757. 
 V. Greaves, 480. 
 V. Hulie, 199. 
 V. Jones, 664. 
 V. Morgan, 657, 692. 
 V. Mannings, 499, 539. 
 V. Sills, 639. 
 V. Smith, 774, 775. 
 V. Thomas, 586, 605. 
 V. Wilcox, 549. 
 V. Williams, 433, 736. 
 V. Woodward, 720. 
 V. Younghusband, 532, 534, 
 535. 
 Williamson v. Allison, 626. 
 Willies V. Farley, 486. 
 Willingham v. Matthews, 113, 114. 
 AVillington v. Brown, 578. 
 Willis V. Bernard, 90. 
 Wilman v. Worrall, 517. 
 Wilson V. Bowie, 561 
 V. Day, 784. 
 V. Hart, 665, 721. 
 V. Magiiay, 137. 
 V. Poulter, 719. 
 V. Rastall, 801. 
 V. Turner, 572. 
 V. Weller, 369. 
 Wilton V. Webster, 759. 
 Wimbush v. Talbois, 639. 
 Wingfield v. Atkinson, 713. 
 Winter v. Butt, 236, 250. 
 Wise V. Wilson, 600. 
 Wishow V. Barnes, 118. 
 Withnell v. Gartham, 696, 698, 690. 
 Wolff w. Oxholm, 355. 
 Wollaston v. Hake well, 145, 575. 
 Wood V. Braddick, 443. 
 
 V. Cooper, 180, 181, 184. 
 
 V. Drury, 512. 
 
 V. Mackinson, 196. 
 
 Wood V. Pringle, 598. 
 
 V. Rowcliffe, 127, 688, 692. 
 V. Strickland, 561. 
 Woodbrldge v. Spooner, 660. 
 Woodcock V. Houldsworth, 174. 
 Woodgate v. Potts, 138, 603. 
 Woodham v. Edwards, 737. 
 Woodhouse v. Swift, 702. 
 Woodhouselee v. Dalrymple, 689, 
 Woodmas v. Mason, 457. 
 Woodnoth v. Cobham, (Lord), 477. 
 Woodward v. Cotton, 276, 277. 
 Woollam V. Hearn, 650. 
 Woolway v. Rowe, 491. 
 Wooton V. Barton, 598. 
 Worlich V. Massey, 737. 
 Worrall v. Jones and another, 128. 
 Worsley v. Filisker, 798. 
 Wright V. Beckett, 245, 249. 
 Wright V. Colls, 460. 
 
 V. Court, 773. 
 
 V. Crookes, 672. 
 
 V. Doe d. Tatham, 53, 89, 145, 
 341. 
 
 V. Lainson, 502, 759. 
 
 V. Littler, 215. 
 
 V. Pindar, 797. 
 
 V. Sharp, 793. 
 
 V. Shawcross, 774. 
 
 V. Tatham, 327, 408, 420, 451, 
 468, 791, 800, 801. 
 
 V. Wilson, 607. 
 Wright's case, 174. 
 Wrottesley v. Bendish, 442, 733. 
 Wyatt V. Bateman, 412, 514, 515, 517. 
 
 V. Gore, 42, 192, 256. 
 Wych V. Meal, 443. 
 Wylie's case, 622. 
 Wymark's case, 574, 737. 
 Wynne v. Tyrrwhitt, 522, 523. 
 
 Yard v. Ford, 757. 
 
 Yardley v. Arnold, 115, 120. 
 
 Yates V. Aston, 657. 
 
 V. Carnsew, 582. 
 Yeates v. Pim, 708. 
 Yeomans v. Legh, 124. 
 Yewin's case, 203, 211, 213. 
 Young V. Brander, 311. 
 V. Wright, 572. 
 Yrissarri v. Clement, 739.
 
 LAW OF EVIDENCE. 
 
 INTRODUCTION. 
 
 Every system of municipal law consists of provisions, which either 
 define primary rights'* and duties; or provide means for preventing 
 or remedying the violation of them. 
 
 If all were both able and willing to fulfil the former provisions of 
 the law, the latter would be unnecessary. But without provisions 
 for i^reventing and remedying violations of the mandatory branches 
 of the law, by imposing actual restraint in some instances, and an- 
 nexing penal or remedial consequences to disobedience, in others, 
 such laws would be of no greater, frequently *of less effect, ^^c)-^ 
 than mere moral precepts. It is of the very essence of a mu- 
 nicipal law, not only to prescribe a rule of conduct, but to compel 
 obedience, either by actual restraint, or by annexing such conse- 
 quences to disobedience as are on the whole the most convenient, so 
 that any addition or excess would be productive of more evil than 
 good. 
 
 Such provisions are either 'preventive or remedial. 
 
 ^ Right, in its primitive legal sense, is that which the law directs : in popular 
 acceptation, that which is so directed for the protection or advantage of an indi- 
 vidual, is said to be Ms right. 
 
 When it is said that^. has a right to an estate or to damages, it is meant, that 
 under the circumstances the law directs that he shall have the estate or shall have 
 damages. When it is said that B. has a right of action, it is meant, that the law 
 under the circumstances provides means for enforcing his claim. 
 
 When the learned author of the Commentaries, in the language of the civil law, 
 speaks of the rights of things, he uses the term in its primitive sense, and treats 
 of those legal incidents which the law prescribes as to things, such as possession, 
 enjoyment, succession, or transfer. 
 1
 
 2 LAW OF EVIDENCE. 
 
 Preventive, which are devised for the actual prevention of violations 
 of the law ; 
 
 Remedial, which are devised for the purpose of repairing the con- 
 sequences of disobedience. 
 
 Preventive provisions, again, are either such as are designed to 
 prevent violations of the law by interposing actual, forcible, corpo- 
 real restraint ; as where one is prevented by force from doing some 
 special injury to the person or the property of another, or is re- 
 strained from doing mischief generally by imprisonment ; or they are 
 such as operate on the mind by the fear o^ penal consequences annexed 
 to defined transgressions. 
 
 Remedial, which afford a remedy or reparation in respect of 
 some violation of right, consist either in awarding specific restitu- 
 tion, as by an actual restoration of goods wrongfully detained from 
 the owner ; or in giving damages co-extensive with the particular 
 injury. 
 
 In order to annex either remedial or penal consequences to their 
 proper predicaments in fact, it is essential that the true state of facts 
 should be investigated by competent means ; that the legal conse- 
 quences appertaining to such ascertained facts, as previously defined 
 by the law, should be declared hj judicial authority ; and, lastly, that 
 the legal consequences, if not already annexed, should be actually 
 annexed by an executive process. 
 
 To the investigative process, again, it is essential that the parties 
 should mutually state what each deems to be essential to his claim 
 |-^o-] or charge, or defence, and that each *should be allowed to 
 dispute or deny the statement of his adversary. By this 
 means, if any facts be disputed, they are distinguished from the ad- 
 mitted facts, in order to be submitted to inquiry before the proper 
 tribunal. 
 
 These mutual statements are, in the law of England, styled the 
 pleadings. 
 
 By that law, it is in the first place incumbent on the party who 
 makes a claim or charge, to state facts which, if true, show that the 
 charge or claim is founded in law : the defendant is then required 
 either by a demurrer to admit the facts and deny the legal conse- 
 quence contended for by the plaintiff or prosecutor, or to deny the 
 facts so alleged, wholly or in part, or, admitting the fact so alleged 
 to be true, to state others, which, taken in connection with the 
 facts already stated, show that the claim or charge is unfounded in 
 law.
 
 INTRODUCTION. 6 
 
 Again, where sucli additional facts are pleaded in defence, it is 
 for the prosecutor or plaintiff, in his turn, either to deny some 
 material fact so pleaded in defence, or, admitting those facts to be 
 true, either to demur, so as to raise a mere question of law, or to 
 allege additional facts ; and in like manner, so long as further facts 
 arc pleaded by the one party, the other may either deny one or more 
 of such facts, or demur, or allege other facts. It is obvious that such 
 a series of mutual allegations, where the condition is that each which 
 does not terminate the series must contain the averment of some new 
 and material fact, must rapidly converge to an issue either of law or 
 fact.'' 
 
 ^ The law, however, frequently sanctions a generality in pleading, which leaves 
 the fact which is to be tried intermixed with most important legal considerations. 
 For instance, the declaration in an action of trover alleges in i«ubstance nothing 
 more than the conversion by the defendant of the phiintiff's goods ; the defendant 
 by his plea may deny that they were his goods ; and this issue frequently involves 
 not merely one or more simple facts, but difficult legal considerations, such as 
 questions of title, the law of bankruptcy, the right of stoppage in transitu, and 
 many others. It is obvious tliat such an intermixture of law and fact could not 
 be avoided without the aid of minute and particular pleadings, in the coui'se of 
 which the real merits and justice of the case would frequently be embarrassed 
 with difficulties, arising from a necessary adherence to technical rules. 
 
 It is interesting to observe how nearly the law of England corresponds with the 
 ancient Roman law in several most important points of its practical administra- 
 tion. In the first place, the pleadings in the practice of the Roman law were 
 transacted before the praetor, as they are with us in the courts above, or, as it is 
 technically called, in Banc. The plaintiff, when he had brought his adversary 
 into court, and had not agreed with him upon an Imparlance, then formally 
 {edebat actionem) declared against him : " Quod si nee vindices dati, nee de lite 
 in via transactum in jus veniri solebat, ubi actor, impetrata loquendi potestate, 
 reo edebat actionem, id est, indicabat qua demum actione adversus reum experiri 
 vellet. Quum enim de uno eodemque facto plures s£epe actiones competerent, 
 eligenda erat una, eaque edenda reo." — Hein. A. R. v. 2, 22G. 
 
 It must be allowed that, however our modern system of pleading may excel that 
 of the Romans in other respects, the latter were at least entitled to the merit of 
 conciseness ; take, for instance, a declaration in assumpsit upon a special agree- 
 ment. A Roman declaration in such a case ran thus : " Aio te mini triticum de 
 quo inter nos convenit ob polita vestimenta tua dare oportere." It is amusing to 
 contrast the laconic brevity of this form with a modern declaration upon such a 
 transaction, expanded upon the record. 
 
 After the declaration followed the defendant's plea {exceptio), and upon that 
 the plaintiff's replication, the defendant's rejoinder {duplicatio) , &c., until the 
 matter in difference was reduced to a single question of law or fact. If the whole 
 resolved itself into a question of law, then, as upon demurrer, it was decided by 
 the prsetor ; but if the question ultimately depended upon a disputed fact, then 
 came the joining of issue, the " contestatio litis," by which the litigants put them-
 
 LAW OF EVIDENCE. 
 
 [*4] 
 [*5] 
 
 *Bj the law of England, questions or issues of fact thus 
 agreed upon are usually tried by the country, that is, by a 
 *jury of twelve men, a part of the great body of the com- 
 munity .° 
 
 selves to the proof of the fact by witnesses : " Festus ait, turn demum litigantes 
 contestari litem dici, cum ordinato judicio utraquepars diceret, ' Testes estote.' " 
 — Hein. A. R. v. 2, 256. The issue was then sent to be tried by Indices, who in 
 many respects bore a close resemblance to an English jury. " Si enim de jure 
 disceptabatur, ipse praetor qui dicebat extra ordinem si de facto judex dabatur, 
 unde formula si paret condemna." Conf. Seneca de Benef. III. 7. The judices 
 were, like our jurors, private persons, selected for the trial of matters of fact upon 
 the particular occasion. Their decision, however, was final ; and instead of re- 
 turning their verdict to the Court above, in order that final judgment might be 
 pronounced, the jury themselves pronounced the sentence, according to the di- 
 rection in the Formula, "^i paret condemna. '''' 
 
 The principal and characteristic circumstances in which the trial by a Roman 
 differed from that of a modern jury, consisted in this, that in the former case, 
 neither the proetor, nor any other officer distinct from the jury, presided over the 
 trial, to determine as to the competency of witnesses, the admissibility of evi- 
 dence, and to expound the law as connecting the facts with the allegations to be 
 proved on the record ; but in order to remedy the deficiency, they resorted to 
 this expedient; the jury generally consisted of one or more lawyers, and thus 
 they derived the knowledge of law from their own members which was necessary 
 to enable them to reject inadmissible evidence, and to give a correct verdict as 
 compounded both of law and fact. " Denique ut tanto minus esset periculi ne 
 imperite judicarent solebant aliquando iis unus aut plures judicii socii jurisperiti 
 adjungi, quorum consilio omnia agerent." Gell. Noct. Att. XII., 13 Conf. Sigon. 
 Hein. A. R. lib. 4, tit. 5, s. 3. Upon the trial, the plaintiff proved his declaration 
 or replication, or the defendant his plea or rejoinder [duplicatio) , accordingly 
 as the pleadings threw the burthen of proving the affirmative on the one or the 
 other. " Ubi ad judicium ventum, actor suam actionem et replicationem, reus 
 exceptionem et duplicationem probabat. Nam et reus escipiendo actor fiebat." 
 — L. 1, D. de Excep. Hein. A. R. v. 2, 291. 
 
 " Notwithstanding the difference of opinion which has prevailed among legal 
 antiquaries as to the origin of the English jury, there seems to be great reason for 
 supposing that it is derived from the. p atria, or body of suitors who decided causes 
 in the county courts of our Saxon ancestors. That the ii-'iaX per jiiratum patrice 
 of Glanville was derived from the trial per patriam, as used both before and 
 after the Conquest, is rendered highly probable, not only by the very description 
 of the trial 7>er patriam, yet retained, but even still more strongly by the powers, 
 qualifications and duties incident to the J urata patriai of Hen. II. and lien. III. 
 This iiypothcsis seems to explain many sii\gular incidents to the early trial per 
 juratam patriw, incidents which it would be diflicult, if not in)possil)le, to account 
 for" in any other manner. The jurata jtatria;, like the patria, decided on their 
 own knoivledye: for this purpose they were selected from the vicinage; those (in 
 the case of an assize) who had no knowledge of the facts were excluded to make 
 room for such others as were supposed to know them ; and although the concur- 
 rence of twelve was essential to the verdict, yet as eleven might have been of a
 
 INTRODUCTION. 6 
 
 *This justly celebrated institution is not more strongly 
 recommended by its intrinsic excellence as a mode of L J 
 *attainin2 to the truth, than by considerations of extrinsic 
 policy. ■- -^ 
 
 contrary opinion, a majority in effect decided : and in the case of a disputed 
 deed, the witnesses were included anionf; the jury, and their duty was, as it is 
 still, in the language of our records, Dicere veritatem. Such incidents afford 
 obvious reasons for supposing that juries were but selections from the patria or 
 general assembly, who must have acted in the double capacity of witnesses and 
 jurors. 
 
 Although i\\\s jurata i^atrice differed from its original, the ^;a^r/a, both in re- 
 spect of number and of the obligation of an oath, these wci'e transitions which 
 might not only easily be made, but which were likely to be made, and which we 
 know actually were made, in the most ancient, perhaps, of all our courts, that is, 
 the county court ; where though, among the Saxons, and even after the Conquest, 
 the verdict was given by the whole comitatus, and is still supposed to be the verdict 
 of the suitors, yet it is in fact given by twelve jurors on oath. In the reign of lien. 
 II., Glanville speaks of the trial per jicratum pati-ice as a known and established 
 institution. Whether the practice of occasionally delegating the duty of decision 
 to a select portion of the body of suitors, and that sworn was coeval with the 
 popular tribunal itself, or subsequently introduced for the trial of civil rights, as 
 we know it to have been for the purpose of criminal presentments may be doubt- 
 ful. It is probable, however, that the complete and final establishment of the jury 
 system is attributable to many concurrent causes. In the first place, it is clear that 
 an appeal from the patria to a select number was a practice of great antiquity ; of 
 this practice there is a very curious memorial in the Monumenta Danica, lib. 1, 
 p. 72: "Erat universa ditio in certas parascias sive curias divisa, has statis tem- 
 poribus locisque per se quseque seorsim suis cum ai'mis, patente sub Dio in cam- 
 pis conveaiebant, aderantque ejusdem loci, viri nobiles qui velut testes judicia 
 assiderent. Ibi in medium prodibant qui contra alios litem se habere existima- 
 bant, auditisque et cognitis partis utriusque actionibus defensionibusque, conven- 
 tus universus in concilium ibat, idque temporis spatium quod interim deliberando 
 terrebatur, curam vocabant. Expensis diligenter et velitatis in partem utramque 
 controversiis, in concessum redibant, vocatisque litigatoribus, de jure pronuncia- 
 bant. Si quis stare judicio non vellet, ad duodecim constitutes sive judices 5U'e 
 arhitros et ab his ad nniversas conditionis conventual provocare ei licebat." The 
 expression, " sive judices sive arbitros," is singularly coincident with the doctrine 
 in Bracton, f. 193, that the jurata was not liable to a conviction, as the assize 
 was, for a false verdict, because the parties had made the jurata " quasi jndicem 
 ex consensu. ^^ 
 
 In the next place, there are evident traces of this practice in our own country : 
 in illustration of which, the celebrated trial in the county court before Odo, bishop 
 of Baieux, in the time of William the Conqueror, may be cited, where the verdict 
 by the patria was required to be confirmed by the oaths of twelve selected for 
 the purpose from the body of suitors. There are in fact many other vestiges of 
 the (at least) occasional practice of delegating the task of decision to a select 
 part ; twelve and its multiples appears to have been a favorite number for this 
 purpose, not only among the Saxons, but other nations of antiquity.
 
 8 LAW OF EVIDENCE. 
 
 * Secret and complicated transactions, such as are usually 
 
 r*8i ... . . . 
 
 •- -• the subject of legal investigation, are too various in their 
 
 *circumstances to admit of decision by any systematic and 
 
 •- ' J formal rules; the only sure guide to truth, whether the object 
 
 Again, that the modern jury are the same with the jurata patrice of Glanville 
 and Bracton, their name, number, and general duty, which to this day is dicere 
 veritcdem, sufficiently prove, although it is clear that a very great change has 
 taken place as to the manner of exercising their important functions. Even so 
 lately as the reign of Hen. III., they exercised a kind of a mixed duty, partly as 
 witnesses, partly as judges of the effect of testimony ; in the case of a disputed 
 deed, the witnesses were enrolled amongst the jury, and the trial wa.s per pair iam 
 et per testes; and to so great an extent was their character then of a testimonial 
 nature, that it was doubted whether they were capable of deciding in the case of 
 a crime secretly committed, and where the j^atria could have no actual knowledge 
 of the fact. (Bracton, f. 173.) It was, however, at this period that the capacity 
 of juries to exercise a far wider and more important function, in judging of the 
 weight of testimony and circumstantial evidence, began to be appreciated, for 
 about this time the trial by ordeal fell into disuse ; and when this superstitious 
 invention, the ancient refuge of ignorance, had been rejected as repugnant to the 
 more enlightened notions of the age, it happily became a matter of necessity to 
 substitute a rational mode of inquiry by the aid of reason and experience, for 
 such inefficacious and unrighteous practices. From this aera probably may be 
 dated the commencement of the important changes in the functions of the jury, 
 which afterwards, though perhaps slowly, took place, until they were modelled 
 into the present form. 
 
 The learned author of the Commentaries is inclined to derive the modern jury 
 immediately from the Saxons, referring to the law of Ethelred, which provides 
 that twelve men, ceiate superiores, shall, with the prcvpositus, swear that they 
 will condemn no innocent, absolve no guilty person. It is clear, however, that 
 this constitution of thirteen men was merely in the nature o^ & jurata delatoria, 
 or jury of accusation, not of trial, for the effect of a charge by the thirteen was 
 merel}' to consign the accused to the triplex ordalium. — Others have asserted, 
 that the origin of the present jury was the assize established in the reign of 
 Henry II. It appears, however, very clearly from Glanville's Treatise, that the 
 jury of twelve was of more ancient origin ; for it is I'epeatedly spoken of in that 
 work as a known and existing institution, and as the oi'dinary means of inquiry 
 in the case of purprestures, nuisances, and trespasses which did not amount to 
 disseisins. These were then tried per jaratam patrice sive vicineti coram justi- 
 ciar lis. Glan. 1. 9, c. 11. 
 
 M. Meyer, in his truly valualjlc and interesting work [Institutions Judiciares), 
 is disposed to fix the origin of our juries at so late a date as that of Henry III. 
 Inst. Jud. vol. 2, p. 165. But it is remarkable, that one reason which he strongly 
 urges in support of this opinjon, is the total silence of Glanvilleon this subject: 
 " Dans cet ouvragc il ne se rencontre ni le nom dc jury ni la chose memo, quoiqu'il 
 8oit souvent question de I'ussise," &c. Inst. Jud. vol. ii. p. 109. Glanville himself 
 aflords the most decisive refutation of this argument. Sec 1. 9, c. 11 ; 1. 14, c. 3 ; 
 see also 1. 2, c. ; 1. 5, c. 4 ; 1. 7, c. IG ; and, consequently, the hypothesis of an 
 origin later tlian the time when Granville wrote, necessarily falls to the ground.
 
 INTRODUCTION. 9 
 
 be to explore the mysteries of nature, or unravel the hidden trans- 
 actions of mankind, is reason aided by experience. 
 
 It is obvious, that the experience which would best enable those 
 whose duty it is to decide on matters of fact, arising out of the con- 
 cerns and dealings of society, to discharge that duty, must be that 
 which results, and which can only result, from an intimate inter- 
 course with society, and an actual knowledge of the habits and deal- 
 ings of mankind : and that the reasoning faculties best adapted to 
 apply such knoAvledge and experience to the best advantage in the 
 investigation of a doubtful state of facts, are the natural powers of 
 strong and vigorous minds, unencumbered and unfettered by the 
 technical and artificial rules by which permanent tribunals would be 
 apt to regulate their decisions. 
 
 Nor is the trial by jury less recommended by considerations of ex- 
 trinsic policy. It constitutes the strongest security to the liberties 
 of the people that human sagacity can devise ; for in effect, it con- 
 fides the keeping and guardianship of their liberties to those whose 
 interest it is to preserve them inviolate ; and any temptation to mis- 
 apply so great an authority for unworthy purposes, which might 
 sway a permanent tribunal,^ can have no influence *when 
 entrusted to the mass of the people to be exercised, by par- ^ -■ 
 ticular individuals but occasionally. 
 
 The trial by jury, though undoubtedly known and used in the king's courts in 
 the reign of Henry II., had become much more frequent in the reign of Henry 
 III., an ajra from which its gradual change to its present form may be dated. It 
 is not improbable, as far as regards the county court, that when its powers had 
 been greatly abridged, the substitution of twelve jurors for the whole comitatus 
 was adopted as a change of great convenience to the suitors of the court, as well 
 as the litigant parties : the former would be more rarely called on to perform a 
 burthensome duty, the latter would have their causes more patiently tried. 
 
 If it was ever the practice, either previous or subsequent to the Conquest, that 
 the verdict by ih& patria or comitatus should be subject to an appeal to or con- 
 firmation by twelve of the^a?-e5 on an oath, and of this as has been seen, some 
 traces are to be found, the transition to the select part would be perfectly easy ; 
 it would in efiFect be nothing more than the mere omission of a step in the process 
 which had become useless and burthensome ; experience having shown that jus- 
 tice was better done by a limited number, acting under the obligation of an oath, 
 than by the precarious determination of a large and indefinite body, few of whom 
 would possess any knowledge of the facts. 
 
 ^ The power of deciding on matters of fact is much more capable of abuse, and 
 liable to corrupt partiality, without appearing to be manifestly unjust, than the 
 power of deciding on matters of law is. A judgment in law on ascertained facts 
 must be justified by comparison with precedents ; and it attracts public notice, 
 because in its turn it becomes a precedent for future decisions. It is therefore
 
 10 LAW OF EVIDENCE. 
 
 In addition to this, no institution could be better devised for secur- 
 ng, on the part of the people, a lively attachment to the constitution 
 and laws, in the practical administration of which they act so impor- 
 tant a part in diffusing a knowledge of the laws themselves, and 
 producing ready obedience to a system which they know to be justly 
 and impartially administered. 
 
 For the finding of a verdict on every issue, it is essential, in the 
 first place, to know what facts, when proved, will satisfy the issue in 
 point of law ; and, secondly, to inquire whether such facts have been 
 proved. The office of the jury is confined altogether to the latter 
 question ; their duty is to ascertain the existence of facts by means 
 of the judgment which they form of the credibility of witnesses, and 
 by the inferences which they make from the circumstances submitted 
 to their consideration. For the due discharge of this important 
 function, they are supposed to be peculiarly well qualified by their 
 experience of the conduct, affairs, and dealings of mankind, and the 
 manners and customs of society. In this respect, and to this extent, 
 the law confides implicitly in their knowledge, experience, and discre- 
 tion. It interferes no further than by laying down cautionary rules 
 to prevent the jury from being deceived or misled. Having done 
 this, the rest is left to the conscience and discretion of the jury. 
 ^ And the Courts *will only interfere with their decision where 
 
 r*iii 
 
 ■- -' the verdict has been perverse or clearly contrary to the evi- 
 dence. 
 
 It is with a view to those objects that the rules of evidence are 
 almost exclusively framed. But in the next place, a knowledge 
 whether particular facts, if established to the conviction of the jury, 
 will satisfy the issue, or the allegations to be proved, is also essential 
 to a verdict ; and this is usually a question of law, and therefore 
 within the province of the Judge. In such cases, therefore, it is for 
 the Court to instruct the jury in point of law, to inform them what 
 facts are essential to the proof of the issue, and that they ought to 
 give their verdict in the affirmative or negative, according to the 
 opinion of the jury that the particular facts are proved or disproved. 
 
 The jury, in finding a gcneral'verdict, are bound to find it accord- 
 ing to the just application of the law as they receive it from the 
 
 the subject of {lublic attention, and any material iloparture from ordinary princi- 
 ples would n(!C(!H.sarily lie remarked ; but the testimony and evidence offered in 
 proof of facts in particular instances, are capable of such infinite complexity and 
 variety, that they admit of no certain standard for judging, and consequently a 
 corrupt or erroneous decision is the less easy to be detected.
 
 INTRODUCTION. • 11 
 
 Court, and their own judgment wlietber the facts are proved or not ; 
 and every such verdict is presumed to be founded upon the law so 
 expounded, and the facts so found. 
 
 If the jury, in a civil proceeding, misapply the law, the party 
 injured may obtain redress by moving for a new trial. But the jury 
 are not in any case, whether civil or criminal, bound to apply the 
 law; they are always at liberty to find a special verdict, that is, to 
 state specially what facts they find to be proved ; and the remainder 
 of that process which is essential to the verdict, that is, the applica- 
 tion of the law to the facts so found, is left to be executed by the 
 Court. In finding a special verdict, the jury discharge the whole of 
 their office, for a special verdict does not contain merely a detail of 
 the evidence given by the witnesses, but is conclusive as to the 
 existence of all the ultimate specific facts of the case, which are 
 essential to its determination, founded upon an examination of the 
 credit due to the witnesses, and upon presumptions and inferences 
 derived from all the circumstances of the case as detailed in evidence. 
 
 *That which is legally offered by the litigant parties to r^-iQ-i 
 induce a jury to decide for or against the party alleging such 
 facts, as contradistinguished from all comment and argument on the 
 subject, fall within the description of evideiice. 
 
 Where such evidence is sufiicient to produce a conviction of the 
 truth of the fact to be established, it amounts to proof. 
 
 The origin, nature and quality of such evidence, the principles and 
 rules which regulate its admissibility and effect, and its application to 
 the purposes of proof, form the subject of the present Treatise. 
 
 The brief outline which has been given to show the relation which 
 this branch of the law bears to the whole system, is sufficient to 
 manifest its great importance. 
 
 There is, perhaps, no greater blessing incident to a highly im- 
 proved state of civilization, than the substitution of a rational and 
 satisfactory mode of judicial proof, for the rude, barbarous, and 
 even impious practices resorted to in the dark and unlettered ages. 
 Without certain modes of investigating truth, in cases where its light 
 is ever liable to be obscured by fraudulent practices exercised for the 
 evasion of justice, the wisest laws are but vain and ineffectual: they 
 may embelhsh the statute-book, as beautiful in theory, but in other 
 respects they are a dead letter, frequently even worse ; for where 
 offenders cannot be detected and punished, the laws may do mischief 
 in holding out a show of protection, which being but delusive, tends 
 to induce a false and dangerous sense of security : what is still worse.
 
 12 LAW OF EVIDENCE. 
 
 whilst the criminal escapes, thej may stamp the innocent with in- 
 famy, and crush them with judgments designed only for the guilty ; 
 and under an arbitrary constitution, may be converted into a danger- 
 ous instrument in the hands of power, for the destruction of those 
 whose possessions are tempting, or principles obnoxious. 
 r^-iq-i Ii^ order to appreciate the advantages which result from 
 *modes of investigation founded on just and rational principles, 
 we have only to recollect the absurd, monstrous, and impious prac- 
 tices resorted to by our own ancestors, in common with other nations 
 of antiquity. It was for the want of them that judicial oaths were 
 multiplied to an extent of itself sufficient to bring the obligation into 
 contempt : it was vainly hoped that the rank and number of compur- 
 gators, who swore not to any fact, but to mere belief, would com- 
 pensate for their want of knowledge. Hence the superstitious 
 appeals to the Deity by the trial by ordeal, and the ferocious and 
 impious practice of the trial by duel. They did not venture to rely 
 on the simple oaths of individual witnesses to fiicts, although with a 
 flagrant degree of inconsistency they gave credit to the cumulative 
 oaths of those who knew nothing of the facts : whilst they were either 
 too ignorant or too indolent to try the credit of witnesses by diligent 
 examination and comparison of testimony and facts, judicial oaths 
 were multiplied to an absurd and profligate extent. Hence also the 
 rude limits of prescription, which were established for the purpose 
 of avoiding the necessity for inquiry.'^ It may, however, be recol- 
 lected to their credit, that the shocking expedient of applying torture 
 to extort confession, a practice sanctioned by many, even Christian 
 legislators, was never resorted to by the Anglo-Saxons. 
 
 But however absurd, objectionable and mischievous such practices 
 must appear at the present day, the progress of improvement has 
 been slow ; for though the trial by duel in civil suits received a con- 
 siderable check in the reign of Henry II., in consequence of the 
 introduction of the trial by the grand assize, yet the practice was 
 continued in appeals till long afterwards, and has but lately ceased 
 to be the law ; and though the trial by ordeal seems to have fiillen 
 P^lj^-j into disuse ever since the early part of the reign of *Henry 
 III. without any formal abolition, the doctrine of compurga- 
 tion by wager of law is but recently abolished. It was not until 
 long after the establishment of the jury trial that the investigation 
 was conducted by the open examination of witnesses, and that the 
 
 " If a man wounded his slave, he was not to be pi'csumcd to be guilty of the 
 murder, unless the slave died the day after.
 
 INTRODUCTION. 14 
 
 functions of jurors and witnesses were distinguished and separated ; 
 it was not until the reign of Queen Anne that witnesses for prisoners 
 tried for felony Avere examined upon oath. 
 
 It is not, however, part of the present design to enter into any 
 historical detail of the law on this interesting subject, further than 
 as reference to the ancient law may be occasionally connected with 
 its present details. 
 
 The subject may be conveniently considered, in relation, 
 
 First. To the elementary principles on which the legal doctrine 
 
 rests. 
 Secondly. To the instruments of evidence, as governed by these 
 
 principles and elementary rules. 
 Thirdly. To their application to the purposes of proof, either 
 generally or particularly.
 
 PART I. 
 
 GENERAL PRINCIPLES OF THE LAW OF EVIDENCE. 
 
 CHAPTER I. 
 
 NATURAL PRINCIPLES OF EVIDENCE. 
 
 FIRST, then, as to the general principles on which the law of 
 evidence is founded. 
 
 The means which the law employs for investigating the truth of a 
 past transaction are those which are resorted to by mankind for 
 similar, but extrajudicial purposes. These are the best, usually the 
 only means of inquiry, and it is for this reason that a jury of the 
 country forms a tribunal so well qualified to judge of mere matters 
 of fact ; for, subject to certain exceptions, they decide by the aid of 
 experience and reason, as they would do on any extrajudicial occa- 
 sion. With these general principles the law can interfere in two 
 ways only ; either by excluding or restraining mere natural evidence 
 by the application of artificial tests of truth, or annexing an artificial 
 effect to evidence beyond that Avhich it would otherwise possess. 
 Hence it is that the great principles of evidence may be reduced to 
 three classes, comprising, 
 
 1st. The principles of evidence Avhich depend on ordinary ex- 
 perience and natural reason, independently of any artificial rules of 
 law ; 
 
 2dly. The artificial principles of law, which operate to the par- 
 tial exclusion of natural evidence by prescribing tests of admissi- 
 bility, and which may properly be called the excluding principles of 
 law ; 
 
 r*1P1 *3dly. The principles of law which either create artificial 
 modes of evidence, or annex an artificial effect to mere natu- 
 ral evidence.
 
 NATURAL PRINCIPLES OF EVIDENCE. 16 
 
 In the first place, it rarely happens that a jury or other tribunal,* 
 whose business it is to decide on a matter of fact, can do so by means 
 of their own actual observation. It is obvious that when inquiry is 
 to be made into the circumstances of a past transaction before a jury, 
 information must be derived for the most part from the same source, 
 and must be judged of and estimated, to a great extent by the same 
 rules that would be resorted to and applied by any individual whose 
 business or whose interest it was, in the ordinary course of human 
 events, to institute such an inquiry. 
 
 What, then, are the means to which a person interested in such 
 an inquiry into a past transaction would naturally resort ? He would, 
 in the first place, ascertain what witnesses were present at the trans- 
 action, and would obtain all the information which they could sup- 
 ply. If none were present, or none could be found from whom he 
 could obtain immediate intelligence, he would procure information 
 from others, who, although they had not actual personal knowledge 
 of the fact, had yet derived information on the subject, either directly 
 or mediately from others who possessed or had acquired and commu- 
 nicated such their knowledge, either orally or in writing. 
 
 Again, in the absence of other information on the subject, he would 
 endeavor carefully to ascertain the circumstances which accompanied 
 the transaction, and had such a connection with it as enabled him to 
 draw his own conclusions on the subject of inquiry. 
 
 In short, where knowledge cannot be acquired by means of actual 
 and personal observation, there are but two *modes by which 
 the existence of a by-gone fact can be ascertained. •- -' 
 
 1st. By information derived either immediately or mediately from 
 those who had actual knowledge of the fact ; or, 
 
 2dly. By means of inferences or conclusions drawn from other 
 facts connected with the principal fact which can be sufficiently es- 
 tablished. 
 
 In the first case, the inference is founded on a principle of faith 
 in human veracity sanctioned by experience. In the second, the con- 
 clusion is one derived by the aids of experience and reason from 
 the connexion between the facts which are known and that which is 
 unknown. In each case the inference is made by virtue of previous 
 
 ^ To a limited extent, a jury or Court, in deciding matter of fact, may have 
 actual personal knowledge. Thus a jury may have a view of lands, &c., the sub- 
 ject of litigation : judges may decide by inspection of a record, or of the person 
 incases of disputed infancy. So also of a jury of matrons in cases of alleged 
 pregnancy, &c.
 
 17 LAW OF EVIDENCE. 
 
 experience of the connexion between the known and the disputed 
 facts, although the grounds of such inference in the two cases mate- 
 rially differ. 
 
 All evidence thus derived, w^hether immediately or mediately from 
 such as have had, or are supposed to have had, actual knowledge of 
 the fact, may not improperly be termed direct evidence ; Avhilst that 
 which is derived merely from collateral circumstances may be termed 
 indirect or inferential evidence. 
 
 It is obvious that the means of indirect proof must usually be sup- 
 plied by direct proof; for no inference can be drawn from any col- 
 lateral facts until those facts have themselves been first satisfactorily 
 established, either by actual observation, or information derived 
 from others who have derived their knowledge from such observa- 
 tion. 
 
 [n8] *CHAPTER II. 
 
 EXCLUDING PRINCIPLES. 
 
 Such, then, being the ordinary source of evidence, what are the 
 excluding principles which restrain the admission of evidence ? As 
 juries must decide by the aid of the same general principles of belief 
 on which any individual would act who was desirous of satisfying 
 himself by inquiry as to the truth of any particular fact, and as an 
 individual inquirer would not think it necessary to limit himself by 
 any particular rules, why should the evidence to be submitted to a 
 jury be limited or affected by any technical rules ? 
 
 The answer is, that the law interferes for two purposes ; first, in 
 order to provide more certain tests of truth than can be provided, 
 or indeed than are necessary, in the ordinary course of affairs, and 
 thereby to exclude all weaker evidence to which such tests are in- 
 applicable, and which, if generally admitted, would be more likely 
 to mislead than to answer the purposes of truth ; and in the next 
 place, to annex an artificial effect to particular evidence which 
 would not otherwise belong to it, on grounds of general policy and 
 convenience. 
 
 The great principle on which the law proceeds in laying down 
 rules of an exclusive operation is, not to alter the value and effect 
 of evidence in the investigation of truth ; that would be absurd, es-
 
 EXCLUDING PRINCIPLES. 18 
 
 pecially where the tribunal invested with the power of decision con- 
 sists of jurors selected from the great body of the people, who, being 
 unskilled in technical rules and unaccustomed to judicial habits, 
 must necessarily decide by the aid of their own experience of things 
 and natural power of their reason, by principles on which they would 
 act in the affairs of ordinary life ; on the contrary, one great object 
 of the law is to aid *the natural powers of decision, by adding 
 to the weight and cogency of the evidence on which a jury is ^ -■ 
 to act. Another great object is to prevent the reception of evidence 
 which in its general operation would injure the cause of truth, by its 
 tendency to distract the attention of a jury, or even to mislead 
 them. ''I 
 
 The necessity for resorting to superior tests of truth, the effect 
 of which is to exclude evidence not warranted by those tests, is 
 founded on the apprehension that the evidence on which an indi- 
 
 " As a consequence of these objects, the application of these excluding prin- 
 ciples is entirely for the judge, who ought to decide on any question of fact 
 which their application may involve. If the proof is by witnesses, he must weigh 
 their credibility, and if counter evidence be offered, he must receive and decide 
 upon it ; and he has no right to ask the opinion of the jury upon any such ques- 
 tion, it being one purely preliminary to the reception of the evidence, even 
 though ultimately the same fact is to be submitted to the jury for their opinion; 
 Doe clem. Jenkins v. Davies, 10 Q. B. 314. 
 
 ^ Thus it has been decided in many cases that the competency of a witness, 
 though it may depend upon a question of fact, is the province of the court 
 exclusively; Cook v. Mix, 11 Conn. 432 ; Amory v. Felloios, 5 Mass. 219 ; Tucker 
 v. Welsh, 17 Ibid. IGO; Reynolds v. Lounsbury, 6 11111534. When an objection 
 is made, at a trial, to a witness on the ground of interest, the decision of the 
 judge on the question of the fact is conclusive ; Dole v. Thurlow, 12 Met. 157. 
 So, if made before a referee, his decision is not the subject of revision ; Leach 
 V. Kelsey, 7 Barb. S. C. Rep. 466. 
 
 In Hart v. Ileilner, 3 Rawle 410, a diiferent principle was declared. It was 
 there said that if a person be called as a witness, and objected to by the adverse 
 party on the score of interest, the party making the objection must show the 
 existence of the interest, and if it should clearly appear to be so from the testi- 
 mony adduced for the purpose of proving it, the court will decide upon it and 
 reject the witness ; but if it be in the least degree doubtful, the court will not 
 decide the question of interest in the witness, but receive his testimony, and 
 leave it to the jury to determine, and if they should be of opinion that he has 
 such an interest, then instruct them to pay no i-egard whatever to his testimony, 
 and leave it altogether out of view. According to this case, it would be discre- 
 tionary with the court either to decide the question of fact directly, or to sub- 
 mit it to the jury. But in Chouteau v. Searcy, 8 Mo. 733, it was expressly held 
 to be error, after admitting the testimony of a witness, to instruct the jury to 
 disregard such testimony if they should find that the witness was interested.
 
 19 LAW OF EVIDENCE. 
 
 vidual in the ordinary transactions of life might safely rely, could 
 not, without the additional sanction of such tests, he safely relied 
 upon, or even admitted, in judicial investigations. For, in the first 
 place, in the ordinary business of life neither so many temptations 
 occur, nor are so many opportunities aflForded for practising deceit, 
 as in the course of judicial investigations, where property, repu- 
 tation, liberty, even life itself, are so frequently at stake : in the 
 common business of life each individual uses his own discretion 
 with whom he shall deal and to whom he shall trust ; he has not 
 only the sanction of general reputation and character for the confi- 
 dence which he reposes, but slight circumstances, and even vague 
 reports, are sufficient to awaken his suspicion and distrust, and 
 place him on his guard ; and where doubt has been excited, he may 
 suspend his judgment till by extended and repeated inquiries doubt 
 is removed. In judicial inquiries it is far otherwise; the character 
 of a witness cannot easily be subjected to minute investigation ; 
 *the nature of the proceeding usually excludes the benefit 
 L " -I which might result from an extended and protracted inquiry, 
 and a jury are under the necessity of forming their conclusions on 
 a very limited and imperfect knowledge of the real characters of the 
 witnesses on whose testimony they are called on to decide. 
 
 It has been truly obseryed, that there is a general tendency among 
 mankind to speak the truth, for it is easier to state the truth than to 
 invent ; the former requires simply an exertion of the memory, whilst 
 to give to false assertions the semblance of truth is a work of diffi- 
 culty. It is equally apparent that the suspicion of mankind would 
 usually depend on their ordinary experience of human veracity ; if 
 truth were always spoken, no one would ever suspect another of fal- 
 sity, but if he were frequently deceived he would frequently suspect. 
 Hence it is that jurors, sitting in judgment, would usually be inclined 
 to repose a higher degree of confidence in ordinary testimony than 
 would justly be due to it in the absence of peculiar guards against 
 deceit: for as the temptations to deceive by false evidence injudicial 
 inquiries are far greater than those which occur in the course of the 
 ordinary transactions of life, they would be apt to place the same 
 reliance on the testimony offered to them as jurors, to which they 
 wouhl have trusted in ordinary cases, and would consequently, in 
 many instances, overvalue such evidence. 
 
 The law therefore wisely requires that the evidence should be of 
 the purest and most satisfactory kind Avhich the circumstances admit 
 of, and that it should be warranted by the most weighty and solemn
 
 EXCLUDING PRINCIPLES. 20 
 
 sanctions. This indeed is but a consequence of one great and im- 
 portant rule of law, viz., that tlie best evidence shall be adduced ; 
 the effect of which is, as will afterwards be seen, to exclude inferior 
 evidence, whenever it is offered in place of that Avhich is of a superior 
 degree and more convincing nature. 
 
 Again, for the purposes of saving both time and expense, 
 *and to prevent the minds of jurors from being distracted r^n^-i 
 from that which is material, it is indispensably necessary to 
 place bounds to collateral evidence, and to exclude such as is of too 
 weak and suspicious a nature to deserve credit, and which though it 
 possessed no tendency to mislead, would still be mischievous in occa- 
 sioning delay and expense, and attracting fruitless attention. 
 
 In order to exhibit clearly the nature and extent of the excluding 
 tests recognised by the law of England, it is essential first to con- 
 sider the different classes of evidence to which such tests apply ; and 
 then to consider what tests are applicable to each of such classes. 
 
 For this purpose all evidence may be divided into two classes : 
 1st. Direct, which consists in the testimony, whether immediately or 
 mediately, derived from those who had actual knowledge of the prin- 
 cipal or disputed fact; or 2dly, indirect or inferential evidence, 
 where an inference is made as to the truth of the disputed fact, not 
 by means of the actual knowledge which any witness had of the fact, 
 but from collateral facts ascertained by competent means. 
 
 Direct or testimonial evidence, again, is either immediate, that is, 
 where a witness states his own actual knowledge of the fact, or 
 mediate, where the information is communicated, not immediately by 
 the party who had actual knowledge of the fact, but from him 
 through the intermediate testimony of one or more other witnesses. 
 
 First, then, what are the principles which govern the reception of 
 immediate testimony ? 
 
 To render the communication of facts perfect, the witness must be 
 both able and tvilling to speak or to write the truth. It is necessary 
 that he should have had, in the first place, the means and opportunity 
 of acquiring the knowledge of the facts ; and, in the second, that he 
 should possess the power and Inclination to transmit them faithfully ; 
 consequently the first great object of the law is to secure, by proper 
 means, the inclination of the witness to *declare the truth, r^i)C)-\ 
 and to ascertain his ability to do so by adequate tests ; and it 
 is for the jury afterwards to judge of the credit due to the witnesses, 
 considering their numbers, their opportunities for observing the facts, 
 the attention which they paid, their faculties for recollecting and
 
 22 EXCLUDING PRINCIPLES. 
 
 transmitting tbera, tlieir motives, their situation with respect to the 
 parties, their demeanor, and their consistency. 
 
 In order to exclude impure or suspicious testimony, and to add the 
 most solemn and binding sanction to that which is admitted, the law, 
 in the first place, excludes all testimony which is not given under the 
 sanction of an oath or its equivalent: and in the next place, subjects 
 the witness to cross-examination by the party against whom the 
 evidence is offered. 
 
 A consequence of the first of these tests until recently was, that 
 the testimony of a person who by the turpitude of his conduct had 
 made it probable that he would not regard the obligation of an oath 
 was not received, and therefore no individual who had been convicted 
 of any infamous crime was competent to give evidence in a court of 
 justice. The legislature has, however, thought it wiser to admit the 
 evidence of such a person, and to leave it to the discrimination of the 
 jury to attach a proper weight to it, and a recent statute*" has 
 enacted that no person offered as a witness shall be excluded from 
 giving evidence by reason of incapacity from crime. ^ 
 
 ^ 6 & 7 Vict. c. 85. 
 
 ^ The rule which excludes a witness on the score of infamy still subsists in 
 most if not all the United States. The conviction of an infamous crime in 
 another State, or in a foreign country, does not, however, render one incompe- 
 tent to testify as a witness, though it has been held that the record is admissi- 
 ble to affect his credibility : Coimn'th v. Green^ 17 Mass. 515 ; Cormri'thY. Knapp, 
 9 Pick. 490 ; Chase v. Blodgett, 10 N. H.22; Uhl v. The Comm'th, 6 Gratt. 706 ; 
 contra, The State v. Candler, 3 Hawks 393. It is the nature of the crime, not 
 the punishment, which determines. Infamous crimes are treason, felony, and 
 every species of the crimen falsi, such as forgery, perjury, subornation of 
 perjury, and offences affecting the public administration of justice : Schuylkill 
 V. Copeley, 17 P. F. Smith 3SG ; People v. Whipple, 9 Cow. 707. Fine, im- 
 prisonment, or transportation for an offence not infamous, does not render a 
 witness incompetent : U. States v. Bockius, 3 AVash. C. C. 99 ; Clarke v. Hall, 
 2 liar, ife McII. 375. An attempt to procure the absence of a witness for a 
 criminal prosecution is not, it seems, an " infiimous" offence: State v. Keyes, 8 
 Vt. 57. So, a conviction under an act against cutting timber : Koller v. Firth, 2 
 Penn. 723. So of keeping a bawdy house : Beer v. The State, 14 Mo. 348. A 
 person convicted of the offence of receiving stolen goods, knowing them to have 
 Ijeen stolen, is not a competent witness : Comm^th v. liixjers, 7 Met. 500 ; but see 
 contra, Commth v. Murp}nj, 3 Clarke 290. Conviction for adultery does not 
 render a person incompetent: Little v. Gibson, 39 N. II. 505. Nor does con- 
 viction of a conspiracy to cheat and defraud creditors : Bickel v. Fasig, 9 Cas. 
 463. Where the statute annexes the disability to the conviction, a pardon does 
 not remove it: Foreman v. Baldwin, 24 111. 298: otherwise pardon ij^so facto 
 restores competency: Yarhorouyh v. State, 41 Ala. 405. A conviction, how-
 
 INTEREST. 22 
 
 Another consequence of these tests was tliat the law would not re- 
 ceive the evidence of any person, even under the sanction of an oath, 
 who had an interest in giving the proposed evidence, and whose 
 interest therefore conflicted with his duty. ,^^^ 
 
 This rule of exclusion, considered in its principle, was founded on 
 tlie known infirmities of human nature, which was deemed too weak 
 to be generally restrained by *religious or moral obligations, r;,:.;q-| 
 when tempted and solicited in a contrary direction by tempo- 
 ral interests. Though there were, no doubt, many whom no inter- 
 ested motive could seduce from a sense of duty, and by their exclu- 
 sion this rule operated, in particular cases, to shut out the truth ; yet 
 as the law must prescribe general rules, and it was thought probable 
 that more mischief would result from the general reception of inter- 
 ested witnesses than was occasioned b}'' their general exclusion, the 
 evidence of interested persons was inadmissible. -f- 
 
 Tlie necessity for defining and limiting the extent of the operation 
 of this principle was an immediate consequence of its adoption, for 
 the sake of certainty in its application, and also to prevent it opera- 
 ting too largely to the exclusion of evidence, which would have been 
 productive of great inconvenience. Hence the law defined the kind 
 of interest which should exclude, and limited it to a legal interest in 
 the event, as contradistinguished from affection, prejudice or bias.^ 
 
 ever, of an infamous crime is not enough. There must be judgment on the 
 verdict, and the judgment must be proved : People v. Whipple, 9 Cow. 707 ; V. 
 States V. Dickinson, 2 McLean 325 ; Skinner v. Perot, 1 Ashm. 57 ; State v. 
 Valentine, 7 Ired. 225. It can only be proved by the record : Rathbun v. Eoss, 
 46 Barb. 127; Pick v. York, 47 Ibid. 131 ; People v. Reinhart, 39 Cal. 449 ; Same 
 v. Maloane, Ibid. G14: Same v. McDonald, Ibid. 697. The admission of a 
 witness that on a former examination he committed perjury goes to his credit 
 not his competency 5 Brown v. State, 18 Ohio St. 496. The record of conviction 
 is admissible as affecting the credit of a witness, although he has been pardoned : 
 Curtis V. Cochran, 50 N. 11. 242. See post, p. 118, note 1. When a witness 
 for the Commonwealth, on a criminal trial, testifies in answer to questions by 
 the prisoner's counsel, that he had been pardoned out of the penitentiary, where 
 he had been imprisoned on conviction of burglary, the pardon is sufiiciently 
 proved to justify the admission of the witness: Howser v. CommHh, 1 P. F. 
 Smith, 332. 
 
 ^ The general rule is, that if the witness cannot gain or lose by the event of a 
 suit, or if a verdict cannot be given in evidence for or against him in another 
 action, the objection goes to his credit, and not to his competency : Van Kuys v. 
 Turhune, 3 Johns. Cas. 82. It must be some certain legal and immediate in- 
 terest in the event of the suit : Harbin v. Roberts, 33 Ga. 45 ; Fountain v. Ander- 
 son, Id. 372. The true test is whether the witness will gain or lose by the 
 direct effect of the judgment, or whether the record will be evidence for or
 
 23 EXCLUDING PRINCIPLES. 
 
 Here the law drew the line of distinction, which must be drawn some- 
 where, and which would have excluded too much of the means of dis- 
 covering the truth, had it incapacitated every witness who, from 
 kindred, friendship, or any other strong motive by which human 
 nature is usually influenced, might have been suspected of partiality. 
 Hence, although a man and his wife could not give evidence for each 
 other," (for their interests are in law identical,) yet no other degree of 
 relationship or connection in society, whether natural or artificial, in- 
 capacitated the parties from giving evidence for each other. A father 
 was a competent witness for his son,'' and a son for his father ; the 
 guardian and his *ward, the master and his servant, might 
 '-''-' mutually give evidence for each other.® 
 
 What constituted such a legal interest may be stated generally to 
 have been either a direct mid certain interest in the event of the 
 cause, or an interest in the record for the purpose of evidence, how- 
 ever minute that interest may have been. It is obvious that a rule 
 
 " Nor against each other, as will be seen, on grounds of policy. 
 
 ^ The application of the principle by the civil law was much more strict, and 
 mutually excluded father and son, patron and client, guardian and ward, from 
 giving evidence for each other ; a servant or other dependent was also incompe- 
 tent to give evidence for his master, and the testimony of a frieid or enemy 
 was regarded with great jealousy. Pand. lib. 22, tit. 5, s. 140. 
 
 ® For the application of this rule, see tit. Interest. 
 
 against him ; Tuttle v. Turner^ 28 Tex. 759. An interest in the question only 
 does not disqualify a witness, but the objection goes to his credit only ; Id. ; 
 Evans v. Eaton, 7 Wheat. 356; Spurr v. Pearson, 1 Mason 104; Willing v. 
 Consequa, 1 Peters C. C. Rep. 301 ; Drake v. Maxwell, 5 Hals. 297 ; Wakely v. 
 Hart, 6 Binn. 319 ; Cornegg v. Abraham, 1 Yeates 34 ; Hayes v. Grier, 4 Binn. 
 S3. Where A., B. and others entered into a contract with X., and A. after- 
 wards brought an action against X. for a violation of his rights under that con- 
 tract, it was held that B. was a competent witness for A., being only interested 
 jn the question : Wadhams v. The Lichfield and Canaan Turnpike Co., 10 Conn. 
 R. 41G. G. 
 
 It is the interest of the party in the subject-matter, as to which one is exam- 
 • ned, and not the effect his evidence may have in the final determination of the 
 issue that renders him incompetent; Emersonv. Atwood, 7 Mich. 12. A remote, 
 uncertain or contingent interest does not render a witness incompetent, but only 
 affects his credibility : Millett v. Parker, 22 Tex. 060 ; Cutter v. Fanning, 2 
 Clarke, 580 ; Scull v. Mason, 7 Wright, 99. The party oljjectiug to a witness on 
 the grounds of interest must show satisfactorily that it is immediate in the event 
 of the cause itself: Richardson v. Dingle, 11 llich. (Law) 405; Richardson \. 
 Hoge, 24 Ga. 203. A party to the record, who has no interest in the result of 
 the suit, is a competent witness : Jackson v. Barron, 37 N. II. 494; Rijers v. 
 Trustees, 9 Cas. 114; Foster v. Leeper, 29 Ga. 294; Draper v. Vanhorn, 12 
 Ind. 352.
 
 INTEREST. 24 
 
 SO wide and extensive in its terms must have given rise to constant 
 questions and doubt, and as a general principle in the practical ap- 
 plication of it, as on the one hand the rejection was peremptory and 
 absolute, but on the other if the Avitness was received, it was still for 
 the jury to consider what credit was due to his testimony, taking into 
 consideration all the circumstances of the case, and the motives by 
 which he may have been influenced, it was thought safer to admit the 
 evidence where there was a doubt than to exclude it altogether. 
 Hence it was the inclination of the courts that objections of this 
 nature should go to the credit of the witness rather than his compe- 
 tency. In order to meet the objection, various expedients, by means 
 of releases, &c., were generally resorted to, and the practical incon- 
 venience of so extensive an exclusion being found intolerable, the 
 legislature interposed and put an end to the latter branch of the rule 
 by providing^ that if any witness should be objected to on the ground 
 that the verdict or judgment would be admissible in evidence for or 
 against him, he should nevertheless be examined, but a verdict or 
 judgment in the action in favor of the party in whose behalf he 
 should have been examined should not be admissible for him, nor 
 should a verdict or judgment against such a party be admissible in evi- 
 dence against him. The effect of this measure having *been ^-fC)T-^ 
 found beneficial, upon the suggestion of Lord Benman the 
 legislature again interfered,^ and limited the operation of the former 
 branch of the rule by enacting that, except in certain instances which 
 presently will be mentioned, no person offered as a witness should be 
 excluded by reason of interest from giving evidence, but that every 
 person so offered should be admitted to give evidence on oath or affir- 
 mation, notwithstanding that such person might have an interest in 
 the matter in question or in the event of the trial, suit or proceed- 
 ings in which he should be off'ered as a witness. 
 
 The interest, however, of a person who was either actually or 
 substantially a party to the suit was still thought to present a suffi- 
 cient objection to the admission of his evidence. By way of quali- 
 fication or proviso, therefore, upon the former general enactment, 
 it was declared that the act should not render competent any party 
 to the suit, action, or proceeding individually named in the record, — 
 
 ^ 3 & 4 Will. IV. c. 42, s. 26. The statute likewise provided (s. 27), in order 
 to facilitate proof of the facts (see Rees v. Walters^ 2 M. & W. 529), that the 
 name of the witness and of the party on whose behalf he was examined should 
 be indorsed on the record. 
 
 s 6 & 7 Vict. c. 85.
 
 25 EXCLUDING PRINCIPLES. 
 
 or any lessor of the plaintiff, or tenant of the premises sought to 
 be recovered in ejectment, — or the landlord or other person in whose 
 right any defendant in replevin made cognisance, — or any person in 
 whose immediate and individual behalf any action was brought or de- 
 fended either wholly or in part, — or the husband or wife of such 
 persons respectively. 
 
 With respect to the rule of evidence thus established, it was 
 objected that the law excluded witnesses falling within any of these 
 predicaments, though their interest in many cases was of the smallest 
 pecuniary amount, yet, in others, admitted the testimony of persons 
 who lay under the influence of the strongest ties of affection or large 
 pecuniary interests in the result, and hence had a far greater tempta- 
 tion to deceive. In answer, it was said that this observation, though 
 true, afforded no fair ground of objection. The simple question was, 
 whether any exclusive rule was necessary. Assuming that the law 
 properly recognised any such test, and that the exclusion of a 
 *witness on the ground of interest was in some cases requi- 
 L ~ -■ site, a general rule must be laid*" down, and the law must ex- 
 clude all persons falling within it. To exclude all who had any 
 interest whatever had been found by experience to be impolitic and 
 unwise ; to admit all who had an interest was considered to be un- 
 safe. The line must be drawn somewhere. To adopt a standard of 
 pecuniary amount, where the value of the subject matter in dispute 
 was often the very point to be ascertained by the verdict, and where 
 in all cases the resulting incident of costs must necessarily be ex- 
 tremely uncertain, would be impracticable. Such a standard, too, 
 would be irrational, unless the pecuniary circumstances as well as 
 the moral principles of the person to whom it was applied were the 
 same. The sum, for example, which might offer an irresistible 
 temptation to a poor or immoral man to commit perjury, would in 
 nowise influence a wealthy or conscientious person. In truth, the 
 infinite variety of human circumstances rendered any test which 
 should be wholly free from objection on the score of inequality utterly 
 impracticable. The only course was, if interest were to form a 
 barrier, to select that class who in the vast majority of instances had 
 so strong a motive operating upon them as to create great risk that 
 they might be induced to commit the demoralizing crime of perjury, 
 and wlio would most probably present evidence on which it would be 
 unsafe to proceed. 
 
 To the rule of exclusion, however, as it existed before the passing 
 of the statutes just mentioned, there were two exceptions. The first
 
 INTEREST. 26 
 
 was where the witness had prcviouslj, and with a view to deprive a 
 party of the benefit of his testiinony, or even wilfully and wantonly, 
 acquired an interest in the event: for this was to be considered as a 
 species of fraud upon the individual or the public, who had an interest 
 in his testimony. 2dly. The law admitted the testimony of an 
 interested witness, on the ground of the necessity of the case, Avhere, 
 in the common course of human affairs, if the witness were to be 
 considered as *incompetent, a failure of justice would result r:j;97-i 
 from defect of testimony.^ These exceptions, however, were 
 
 ^ In general, the interest, to exclude a witness, must not have arisen after the 
 fact to which he is called to testify happened, by his own act and without the 
 interference and consent of the party calling him : Jackson v. Riimsei/, 3 Johns. 
 R. 237 ; Tiirnei/ v. Knox, 7 Monr. 91. An interest in the event of a suit, acquired 
 after the commencement, does not render a witness incompetent, unless that 
 interest was acquired from the party offering him : Rhem v. Jackson, 2 Dev. 187. 
 Yet if a witness offered by the plaintiff has become interested in the event of the 
 suit, by a bond fide contract with the defendant, made in the regular course of 
 business, and without any intention of the defendant or the witness to deprive 
 the plaintiff of his testimony, he is incompetent, although such interest was 
 created after the plaintiff had become entitled to his testimony : Eastman v. 
 Winship, 14 Pick. 44. G. 
 
 Where the party objecting to a witness, on the ground of interest, which was 
 acquired by a contract entered into subsequently to his knowledge of the facts 
 he is brought to prove, is himself a party to the agreement creating the interest, 
 or had any agency in causing it to be created, the witness may be admitted to 
 testify, notwithstanding such interest : Burgess v. Lane, 3 Greenl. 165 ; Manches- 
 ter Iron Co. V. Sweeting, 10 Wend. 1G2. A witness cannot deprive a party of his 
 evidence, by creating a subsequent interest by his own act, without the concur- 
 rence of the party calling him ; much less can he do so by agreement with the 
 opposite party : Hafner v. Irwin, 4 Ired. 529 ; Baylor v. Smithers, 1 Litt. 105 ; 
 Long V. Bailie, 4 S. & R. 222; McDanieVs Will, 2 J. J. Marsh. 331 ; Price v. 
 Woods, 1 Monr. 223 ; Clark v. Brown, 1 Barb. 215. If, however, the subscrib- 
 ing witness to an instrument becomes interested and a party to the cause, even 
 though he does so voluntarily, he cannot be examined as a witness ; Blackwelder 
 V. Fisher, 4 Dev. & Batt. 204. 
 
 Servants and agents, though interested, are, in general, admissible as witnesses 
 from necessity: Fishery. Willard, 13 Mass. 379; Phillips v. Bridge, 11 Ibid. 
 242 ; Eice v. Grove, 22 Pick. 158 ; Fuller v. Wheelock, 10 Ibid. 135 ; Alexander 
 V. Emerson, 2 Litt. 25 ; Phelps v. Sinclair, 2 N. II, 554 ; Sewall v. Fitch, 8 Cow. 
 215 ; Shepard v. Palmer, 6 Conn. 95 ; Livingston v. Swannick, 2 Dall. 300 ; U. 
 S. Bank v. Stearns, 15 Wend. 314 ; Stafford Bank v. Cornell, 1 N. H. 193 ; Bk. 
 of Kentucky v. McWilliams, 2 J. J. Marsh. 256; Wainright v. Strata, 15 Vt. 
 215 ; Stringfellow v. Marriott, 1 Ala. 573 ; Stathard v. Call, 7 Mo. 318 ; Doe v. 
 Himelick, 4 Blackf. 494 ; Gilpin v. Howell, 5 Barr 41 ; Bean v. Pear sail, 12 Ala. 
 592; Wright v. Rogers, 18 La. Ann. 671 ; The State v. Holloway, 8 Blackf. 45 ; 
 Nicholls V. Guihor, 20 111. 255. An agent is competent to prove his own 
 authority : Kent v. Tyson, 20 N. 11. 121 ; Miles v. Cook, 1 Grant 58 ; Wolf v.
 
 27 EXCLUDING PRINCIPLES. 
 
 rare, and confined principally to the cases of a servant who trans- 
 acted his master's business, and who, in the usual course of affairs, 
 was the only person who could give evidence for his master : of a wife 
 on a charge against the husband of having committed a violence to her 
 person ; and of one who brought an action against the hundred under 
 the statute to recover the value of the property of which he had been 
 robbed ; for here, from the very nature of the case, it was highly 
 improbable that he should be able to adduce any witness to prove 
 the robbery.' It was not sufficient that the inability to procure 
 evidence should result from the circumstances of a particular case, 
 for that would have amounted to little short of the destruction of the 
 general rule : the necessity must have arisen from a general presump- 
 tion arising from the nature of the case, that in the common course 
 of human affairs there would be a defect of evidence and a failure of 
 justice, unless such evidence was admitted. 
 
 Acting upon the principle of these exceptions to a certain extent, 
 and the great probability that in trifling transactions the parties 
 themselves would be the only persons who could speak to them, and 
 regarding also the limit of the interest which the restricted nature of 
 their jurisdiction involved, the legislature, in establishing courts for 
 the recovery of small debts, formerly provided in many instances 
 that the parties themselves should be competent witnesses. When 
 these tribunals came to be swept away by the provision for the estab- 
 
 ' Pinckney v. Inhabitants De Rotel, 2 Wins. Saund. 374 ; 2 Roll. Abr. 685. So 
 in cases of extortion by duress, 7 Mod. 119, 120 ; and in suing for penalties under 
 5 Anne, c. 1, s. 5: E. v. Lockup, 1 Ford, MSS. 542; Willes 425, n. (c.) ; the 
 plaintiff, or party interested might be a witness. And see Lock v. Hai/ton, Fort. 
 246 ; also the instance of the deposition of the defendant in an action for a ma- 
 licious prosecution made on the occasion of the charge : Jackson v. Bull, 2 M. & 
 Rob. 176. 
 
 Smith, 14 Ind. 360; Caldwell v. Wentworth, 16 N. II. 318; Piercy v. Kedrick, 
 2 W. Va. 458 ; 3[anawaij v. State, 44 Ala. 375. 
 
 The exception to this rule is where an action is brought against the principal 
 or master to recover for the negligence or malfeasance of the servant or agent : 
 Railrod Co. v. Kidd, 7 Dana 245 ; Newbold v. Wilkins, 1 Ilarring. 43 ; Middle- 
 kavf V. Smith, 1 Md. 329; McClurev. Whitesides, 2 Cart. 573. An agent is 
 incompetent as a witness when he has been guilty of any tortious act or negli- 
 gence in executing the orders of his principal in respect of which he would be 
 liable over to tlie latter should he fail in his suit : Ware v. Bennett, 18 Tex. 794. 
 The general rule is that an agent is competent for his principal, except in cases 
 where tlie [)rinoipal is sued on account of the negligence of the agent; Struthers 
 V. Kendall, 5 Wright 214 ; llorne v. Memphis It. It. Co., 1 Cald. 72 ; Memphis R. 
 It. Co. v. Tiujwell, Ibid. 91. Sac post p. 122, note 1.
 
 INTEREST. 27 
 
 lishment of the County Courts,'' the question of the exclusion of in- 
 terested witnesses necessarily came under discussion, and it was 
 thought more beneficial, upon *the whole, to enact that before r^Qo-i 
 those tribunals the parties, their wives, and all other persons 
 might be examined. 
 
 Hence immediately arose a great inconsistency. By far the 
 greater proportion of the numerous demands recoverable in these 
 were also recoverable in the Superior Courts ; in the former, the 
 evidence of the party was to be weighed, in the latter it was to be 
 deemed wholly unworthy of trust. It thus appeared as if the Supe- 
 rior Courts had less efficacious means of testing the truth of evidence 
 and detecting falsehood than these inferior tribunals. The plaintiff, 
 too, who had his option as to where he should sue, if his own testi- 
 mony would be adverse, or he knew the evidence of the defendant 
 could establish his defence, sued in the Superior Court and excluded 
 the evidence, and no equivalent option was given to a defendant. 
 The jurisdiction of these courts having been considerably enlarged 
 and a far wider option being thus afforded to plaintiffs, and the mat- 
 ters of which they were enabled to take cognisance having become 
 still more important, it was deemed unreasonable any longer to pre- 
 serve a distinction between the practice of the different tribunals in 
 these respects. Hence the legislature, in the last session of Parlia- 
 ment,' abrogated the whole of the exceptions contained in Lord Den- 
 man s Act, save that which related to the admissibility of the hus- 
 bands and wives of the several persons mentioned in those excep- 
 tions, and enacted™ that the parties to any proceeding in any court, 
 and the persons in whose behalf it might be brought or defended, 
 should be competent and compellable to give evidence. Suits and 
 proceedings, however, instituted in consequence of adultery, and 
 actions for breach of promise of mai'riage, were thought to stand upon 
 a peculiar footing, and therefore such proceedings were excepted.''^ 
 
 " 9 & 10 Vict. c. 95, 8. 83. 
 
 ' 14 & 15 Vict. c. 99, post, p. 140. ■" Sect. 2. " Sect. 4. 
 
 ^ There are many cases in which interested persons are admitted at common 
 law, even though they may be parties to the record. A large class of such cases 
 is, where one party is allowed to prove by his own oath his book of original 
 entries, to substantiate a charge against the other party for goods sold and de- 
 livered, or for work and labor done ; but it does not subject him to cross-exami- 
 nation generally : Eastman v. Moulton, 3 N. H. 156 ; Weed v. Bishop, 7 Conn. 
 128 ; Fredd v. Eves, 4 Ilarring. 385 ; Wehh v. Pindergrass, Ibid. 439 ; Bobbins 
 V. Merritt, 31 Me. 451. The plaintiff in an action is admissible to prove the 
 value of his property which the defendant has been guilty of a felonious, fraudu-
 
 28 EXCLUDING PRINCIPLES. 
 
 In crlniinal cases the examination of the person charged has ever 
 been regarded in England with great aversion, more especially as the 
 
 lent, or other tortious intermeddling!; with, when no other evidence can be had 
 of the amount of the damao;es : Queener v. Morrotv, 1 Cold. 123. Another 
 class is, where a party is admitted to prove notice, or the loss of a paper, or 
 death or absence of a subscribing witness, as preliminary to the introduction of 
 secondary evidence, whenever such evidence is addressed to the judge merely: 
 Jordan v. Coojyer, 3 S. & R. 564 ; Douglass v. Sanderson^ 2 Dall. 116 ; Chamber- 
 lain V. Gorham, 20 Johns. 144 ; SiUzell v. Michael, 3 W. & S. 329 ; Juzan v. 
 Toulmin, 9 Ala. 662 ; Fitch v. Bogue, 19 Conn. 285 ; Glassell v. Mason, 32 Ala. 
 719 ; Stevens v. Eeed, 37 N. II. 49 ; Morgan v. Jones, 24 Ga. 155. But when 
 demand or notice is a substantive fact, necessary to make out the case, it must 
 be proved, as other facts, by competent testimony ; Grant v. Leaven, 4 Barr 
 393. So a party suing a common carrier for the loss of a trunk containing 
 personal appiirel, has been admitted to testify to the contents on the principle 
 of necessity ; Herman v. Drinkwafer, 1 Greenl. 27 ; County v. Leidi/, 10 Barr 
 45; Sparrv. Willman, 11 Mo. 230. Contra: Snow v. Eastern R. R. Co., 12 
 Mete. 44; Parmelee v. McNidty, 19 111. 556 ; Garvey v. Camden & Amhoy R. R. 
 Co., 1 Hilt. 280 ; Nolan v. Ohio R. R. Co., 39 Mo. 114 ; Williams v. Frost, Ibid. 
 518. A guest is a competent witness to prove the value of his trunk lost at an 
 inn: Kitchens v. Bobbins, 29 Ga. 713. Contra: Pope v. Hall, 14 La. Ann. 693 ; 
 Packard v. Northcraft, 2 Mete. (Ky.) 439. But in such an action it was held 
 that the plaintiff was incompetent to prove that there- was money in the trunk, 
 and how much : David v. Moore, 2 W. & S. 230. See post, p. 127, note 1. In 
 many of the United States the provisions of statutes 6 & 7 Vict. c. 85 and 14 & 
 15 Vict. c. 99 have been introduced. Not only is infamy and interest no longer 
 available objections, but parties to the record, and even defendants indicted for 
 misdemeanor. When, however, one party to a contract or transaction is de- 
 ceased or has become insane the other party is incompetent. Husband and wife 
 are competent witness for, but not against each other. It would be a very diffi- 
 cult task to arrange the various decisions in the several States upon these 
 statutes. They depend, in a great measure, upon the peculiar phraseology of 
 the enactments and would not bo of general interest or importance. 
 
 The result of the statute allowing parties to testify has not been to blend in 
 one the different characters of party and witness, nor to obliterate the distinc- 
 tion between admissions of parties against interest and statements out of court 
 contradictory to their testimony : Hall v. The Emily Banning, 33 Cal. 522. A 
 party who becomes a witness has the same privilege as any other witness : 
 Brandon v. People, 42 N. Y. 265. Contra: Mc Garry v. People, 2 Lans. 227. 
 The fact that the party does not offer himself as a witness may be the subject of 
 remark to the jury : State v. Bartlett, 55 Me. 200; Devries v. Phillips, 63 N. C. 
 53. Though the defendant in a criminal case may be allowed by a state statute 
 to testify in his own behalf in a state court, that does not render his testimony 
 admissible in the courts of the United States : U. States v. Hawthorne, 1 Dill. 
 422. 
 
 The Act of Congress (lleviscd Statutes, sect. 858, p. 162) provides, that "in 
 the courts of the United States no witness shall be excluded in any action on 
 account of color or in any civil action because he is a party to or interested in
 
 OATH. 29 
 
 examination of a person so charged *in his own behalf would r-^-Qq-] 
 involve his cross-examination for the prosecution ; therefore 
 adhering to the ancient practice, and retaining inviolate the principle 
 that no man shall be bound to criminate himself, the statute also pro- 
 vided that it should not in criminal proceedings render anj person 
 charged with the commission of any indictable offence, or any offence 
 punishable on summary conviction, competent or compellable to give 
 evidence for or against himself, or to render any person compellable 
 to answer any question tending to criminate himself, or in any crimi- 
 nal proceeding render any husband or wife competent or compellable 
 to give evidence for or against each other. 
 
 The first great safeguard which the law provides for the ascertair/- 
 ment of the truth in 07\lmary cases, consists in requiring all evidence 
 to be given under the sanction of an oath. This imposes the strongest 
 obligation upon the conscience of the witness to declare the whole 
 truth that human wisdom can devise ; a wilful violation of the truth 
 exposes him at once to temporal and to eternal punishment. 
 
 A judicial oath may be defined to be a solemn invocation of the 
 vengeance of the Deity upon the witness, if he do not declare the 
 whole truth, as far as he knows it." 
 
 Hence it follows that all persons may be sworn as witnesses who 
 believe in the existence of God, in a future state of rewards and 
 punishments, and in the obligation of an oath, that is who believe 
 
 " Est antem Jasjurandum religiosa adseveratio per invocationem Dei tanquam 
 vindicis si juratus sciens fefellerit. Heinec. pars 3, s. 13. See Whewell, Ele- 
 ments of Morality, vol. i. p. 367 ; Tyler on Oaths. 
 
 the issue tried : Provided, that in actions by or against executors, administrators 
 or guardians, in which judgment may be rendered for or against them, neither 
 party shall be allowed to testify against the other, as to any transaction with or 
 statement by the testator, intestate or ward, unless called to testify thereto by 
 the opposite party, or required to testify thereto by the court. In all other 
 respects the laws of the state in which the court is held shall be the rules of 
 decision as to the competency of witnesses in the courts of the United States in 
 trials at common law, and in equity and admiralty." 
 
 The law by which the admissibility of testimony in criminal cases must be 
 determined is the law of the state as it was when the courts of the United States 
 were established by the Judiciary Act of 1789 ; U. States v. Beid, 12 Howard 
 (Sup. C.) 361. The statutory enactments of the states, in respect to evidence in 
 cases at common law, are obligatory upon the courts of the United States ; 
 Wright v. Bates, 2 Black 535. And see as to the construction of the Act of 
 Congress; Green v. U. States, 9 Wall. 655; Lucas v. Brooks, 18 Ibid. 436. See 
 post, p. 122, &c., as to the English statutes upon the subject of the competency 
 of witnesses.
 
 29 EXCLUDING PRINCIPLES. 
 
 that Divine punishment will be the consequence of perjury ;^ and 
 therefore Jews,^ Mahometans,'' Gentoos/ or in short, persons of any 
 
 P Cowp. 389 ; 1 Raym. 282. 
 
 "J Fachina v. Sabine, Stra. 1104; Morgan'' s case, Leach, 52; 2 Hawk. c. 46, s. 
 152 ; Omichund v. Earlier, 1 Atk. 21 ; 1 Wils. 84 ; Rex v. Taylor, Peake 11. 
 
 ^ Ramkissensent v. Barker, 1 Atk. 19 ; Omichund v. Barker, Willes, 538 ; 1 
 Smith, L. C. 195. 
 
 ^ There are some, though not, perhaps, very important differences, in the lan- 
 guage of the decisions of various courts in the United States, on this suljject. 
 There is entire unanimity in holding that the witness must believe in the exist- 
 ence ©f God who will punish falsehood ; but though some cases require that he 
 should believe that there is a future state of retribution, others do pot go to this 
 extent. Of the former class are, Wakefield v. Ross, 5 Mason 16 ; Custiss v. 
 Strong, 4 Day 51 ; Atwood v. Kelton. 7 Conn. 66. Of the latter class. Butts v. 
 Sicarticood, 2 Cow. 431 ; N^oble v. People, Breese 29; Cuhbison v. McCreary, 2 
 W. & S. 262 ; Blocker v. Bumess, 2 Ala. 354 ; Brock v. Milligan, 10 Ohio 121 ; 
 U. States V. Kennedy, 3 McLean 175 ; Jones v. Harris, 1 Strobh. 1(50 ; Bennett v. 
 The State, 1 Swan 411 ; Comm'th v. Winnemore, 2 Brewst. 378. In Virginia, 
 no person is incapacitated from being a witness on account of his religious 
 belief: Perry'' s case, 3 Gratt. 632. It has been held that an adult of sound mind 
 is not to be questioned as to his religious belief: Jackson v. Gridley, 18 Johns. 
 98 ; CommHh v. Barker, 82 Mass. 33. 
 
 Evidence of his declarations on the subject may be received aliunde: Norton v. 
 Ladd, 4 N. H. 444 ; Beardsley v. Foot, 2 Root 399 ; Scott v. Hooper, 14 Vt. 535 ; 
 Arnold v. Arnold, 13 Vt. 363 ; Thurston v. Whitney, 2 Cush. 104 ; Anderson v. 
 Mayberry, 2 Heisk. 653, Want of religious belief may be proved at the option 
 of the party seeking to exclude him, either by the voir dire or by evidence of his 
 declarations previously made : Harrel v. State, 1 Head 125. But an honest 
 change of opinion, after declarations of disbelief proved, may be shown by com- 
 petent evidence : Smith v. Coffin, 6 Shep. 157 ; CommHh v. Batchelder, Thacher's 
 Crim. Cas. 191. See Peoples. Harper, 1 Edw. Sel. Cas. 130; though the wit- 
 ness himself cannot be heard in explanation or denial : Smith v. Coffin, 6 Shep. 
 157 ; The State v. Toionsend, 2 Ilarring. 543 ; CommHh v. Wyman, Thacher's 
 Crim. Cas. 432. Contra, that the witness may himself be examined : Scott v. 
 Hooper, 14 Vt. 535. The defendant called a witness, to whom the plaintiff ob- 
 jected, on the ground of an alleged want of religious belief, and the judge 
 admitted the testimony of witnesses in support of, and in opposition to, the 
 objection ; and afterwards the person objected to was examined on his voir dire, 
 and having testified to his belief, was admitted to give evidence in chief; held 
 that there was no error in this : Quinn v. Crowell, 4 Whart. 334. This last case, 
 however, was really decided on the ground that there is no bill of exceptions in 
 the case of introductory evidence to the Court, where the evidence in chief was 
 properly admitted or excluded. "AVhat boots it, then, that, even were the 
 proper course otherwise, parol evidence of the witness's disqualification was 
 heard before he himself was heard? The order of proof, even to a jury, is not 
 the subject of error; and to examine him to his own competency would have 
 assumed the fact in controversy, which it was determined, in Griffith v. Reford, 
 (1 Ilawlc 197,) cannot be done." Gibson, C. J. See^os^, p. 1 16, note 1.
 
 OATH. 30 
 
 sect possessed of such belief/ are so far competent *witnesses. r^on-i 
 Hence also it follows that children who are too young to com- 
 prehend the nature of an oath,' and adults, who from mental infirm- 
 ity or for want of instruction do not understand this solemn obliga- 
 tion, or who do not believe in the existence of a Deity, or in a state 
 where that Deity will punish perjury," cannot be admitted as wit- 
 nesses; since, in all these cases, either from want of understanding 
 or want of belief, that obligation to speak the truth is wanting which 
 the law has appointed on such occasions as an indispensable security.^ 
 
 ' 1 Wils. 84; Reg v. Entrehman, Car. & M. 248 ; and see note (y), post, (41 
 E. C. L. R.)- 
 
 ' Vide supra; and see East, P. C. 441 ; and R. v. Potoell, Leach, C. C. L. 128, 237. 
 
 " An atheist is not competent ; B. N. P. 262 ; Rex v. White, Leach, C. C. L. 
 483 ; Lee v. Lee, 1 Atk. 43, 45 ; Co. Litt. 6 ; 2 Inst. 479 ; 3 Inst. 165 ; 4 Inst. 279 ; 
 Fleta, b. 5, c. 22 ; Bract. 116. See Rex v. Taylor, Peake, Ca. Ni. Pri. 11, where 
 Buller, J., held that the proper question to be asked of a witness is, whether he 
 believes in God, the obligation of an oath, and in a future state of rewards and 
 punishments: and, in Reg v. Serva, 2 Car. & K. (61 E. C. L. R.) 56, on a wit- 
 ness stating that he was a Christian, Piatt, B., refused to allow the witness to 
 be asked any further questions before he was sworn. 
 
 ^ The capacity of a witness under fourteen years is to be determined by the 
 Court; Comm'th v. Hutchinson, 10 Mass. 225 ; Anon., 2 Penn. 930 ; Van Pelt v. 
 Van Pelt, Ibid. 657. If over fourteen years of age, he will not be interrogated 
 respecting his capacity, unless some reason creating suspicion be shown : Den v? 
 Vandeve, 2 South. 589. The evidence of a child of seven years of age, corrobo- 
 rated by circumstances, is sufficient to justify a conviction of a capital crime, 
 although that evidence be contradicted by the evidence of an adult ; the credi- 
 bility of the witnesses being left to the jury ; State v. Leblanc, Const. Rep. 354. 
 In a criminal trial a child seven years of age may testify ; but his credibility is 
 a matter for the jury to consider. Washburn v. People, 10 Mich. 372. No pre- 
 cise age is fixed under which a child is incompetent ; it depends upon the dis- 
 cretion of the Court in view of all the circumstances. People v. Bernal, 10 Cal. 
 6 ') ; State v. Denis, 19 La. Ann. 119 ; Kilburn v. Mullin, 22 Iowa, 498 ; Hanagan v. 
 State, 25 Ark. 92 ; Warner v. State, Ibid. 447 ; Comm'th v. Careg, 2 Brewst. 404. 
 
 Idiots, lunatics, and madmen are not competent witnesses : Livingston v. Hier- 
 sted, 10 John. 362 ; Evans v. Hetticlc, 7 Wheat. 453 ; Armstrong v. Timmons, 3 
 Harring. 342. To exclude a witness from testifying as being non compos, or an 
 idiot, the fact must be proved by other testimony, and not by a preliminary ex- 
 amination of the w'tness, and even if the Court have any discretion, still it is 
 not error for them to refuse to alloAV it ; Robinson v. Dana, 16 Vt. 474. The 
 question whether a person who is offered as a witness is insane at the time is 
 for the Court ; aliter insanity at the time of the transaction to which he testifies 
 is for the jury; Holcomb v. Holcomb, 28 Conn. 177. A witness who is intoxi- 
 cated, ought not to be sworn or permitted to testify ; Hartford v. Palmer, 16 
 Johns. 143 ; Gould v. Crawford, 2 Barr, 89. It is no objection to a witness that 
 he has been found an habitual drunkard, under the provisions of an Act of
 
 30 EXCLUDING PRINCIPLES. 
 
 As the object of the oath is to bind the conscience of the witness, 
 it follows that some form of swearino; must be used which the witness 
 considers to be binding. On the principles of the common law, no 
 particular form is essential to the oath ; and therefore every witness 
 is now'' sworn according to the form which he holds to be the most 
 solemn, and which is sanctified by the usage of the country or of the 
 sect to which he belongs. ^ A Jew is sworn upon the Pentateuch,^ 
 p^o-i-i and a Turk upon the *Koran ;* so it has been held that a 
 Scotch covenanter'' may be sworn according to the form of his 
 sect, by holding up his hand without kissing the book. A Jew who 
 has never formally renounced the religion of his ancestors, but con- 
 siders himself to be a member of the established church, may be sworn 
 on the Gospels.''^ 
 
 ^ Cowp. 389 ; Colt V. Button, 2 Sid. 6 ; Ry. & M. (21 E. C. L. R.) 77. By the 
 stat. 1 & 2 Vict. c. 105, every person shall be bound by an oath, which shall 
 have been administered in such form and with such ceremonies as he may 
 declare to be binding, and is liable to be indicted thereon for perjury. 
 
 y It was formerly doubted -whether the oath must not be taken on the Old or 
 New Testament ; 2 Hale 279 ; but it was afterwards settled that it need not ; 1 
 Atk. 21 ; 2 Eq. Ca. Abr. 397 ; 1 Wils. 84 ; Cowp. 390. 
 
 ^ It was held that Jews might be sworn on the Pentateuch previous to their 
 expulsion from England ; i. e. before the 18 Edw. I., when they were first expelled 
 from the kingdom : Wells v. Williams, 1 Ld. Raym. 282 ; Vern. 263 ; Cowp. 389. 
 See Seld. torn. 2, fol. 1467, as to the form of swearing a Jew, temp. Edw. I. 
 
 ' Fachina v. Sabine, Stra. 1104; Morgan's case, Leach, C. C. L. 64. 
 
 " Per Lord Mansfield, Cowp. 390; Bex v. Mildrone, Leach, C. C. L. 459 ; Mee 
 V. Bead, Peake, Ca. Ni. Pri., 23 ; Bex v. Fitzpatriclc, Leach, 459; 2 Sid. 6, Colt 
 V. Button. When Lord Ilardwicke was desired to appoint a form for swearing 
 the Gentoos, he said that it was improper, and that it must be taken according 
 to the form which they held to be the most solemn : Bamkissensent v. Barker, 1 
 Atk. 19. 
 
 •^ B. V. Gilham, 1 Esp. C. 285. A member of a religious sect which objects to 
 the ceremony of kissing the book, may be sworn without it : Mee v. Bead, Peake, 
 C. 23 ; Mildrone^ s case, Leach, C. C. L. 459 ; Colt v. Button, 2 Sid. 6. A wit 
 ness being of the Methodist persuasion, refusing to be sworn on the New Testa- 
 ment, was permitted to Jte sworn on the Old, stating he considered it binding on 
 his conscience ; Edmonds v. Bowe, Ry. & M. (21 E. C. L. R.) 77 ; and see 1 & 
 2 Vict, c 105, supra, note (x). 
 
 Assembly depriving such persons of legal competency to act: Gebhart v. Shindle, 
 15 S. & R. 235. A deaf and dumb person, capable of relating facts correctly 
 by signs, may give evidence by signs through the medium of an interpreter, 
 though it appear that such person can read and write, and communicate ideas 
 imperfectly by writing: The State v. J)e Wolf, 8 Conn. 93: Snyder v. Nations, 
 5 liluckf. 295. 
 
 ' Swearing )»y the uplifted hand is recognised as a lawful oath, independent 
 entirely of the provision of any statute allowing it : Gill v. Caldwell, Breese 28 ;
 
 OATH. 31 
 
 The testimony must be sanctioned, not merely by on oatli, but by 
 a judicial oath, in the course of a regular proceeding, administered 
 by an authorized person ; for if the oath were extrajudicial, the wit- 
 ness could not be punished for committing perjury under that oath, 
 and therefore one of the securities for truth which the law has pro- 
 vided would be wanting. Hence, although every other legal requi- 
 site may concur to render what a party has sworn admissible, and 
 although the fullest opportunity has been afforded to the opposite 
 party to cross-examine the witness, yet if the oath was extrajudicial, 
 the testimony given under it is not admissible. A further objection 
 to such evidence is, that the party against whom it was offered was 
 not bound to notice it, and he ought not to be placed in a worse 
 situation by omitting to make himself a party to an extrajudicial 
 *and illegal proceeding. This doctrine and the minor distinc- r^oy-i 
 tions arising upon it, will be more fully discussed hereafter, 
 when the different cases relating to the reception of judicial proceed- 
 ings in evidence are considered; for the present, it may suffice to 
 observe, that it is a general rule that testimony given under an oath 
 merely extrajudicial, cannot afterwards be admitted in evidence, for 
 the reasons already stated. 
 
 There are two exceptions to the general rule; the case of declara- 
 tions made by a person under the apprehension of impending dis- 
 solution, and the exception introduced by the express provisions of 
 the legislature in favor of the religious scruples of Quakers and 
 some otliers. The principle upon which the first of these exceptions 
 stands is very clear and obvious; it is presumed that a person who 
 knows that his dissolution is fast approaching, that he stands on the 
 verge of eternity, and that he is to be called to an immediate account 
 
 Doss V. -Birks, 11 Hump. 481. In Massachusetts, the liberty to affirm is con- 
 fined strictly to Quakers ; U. States v. Coolid(/e, 2 Gallis. 364. A witness, who 
 has no objection to beini^ sworn, cannot be affirmed: Williamson v. Carroll, 1 
 Harrison 217. Oaths are to be administered to all persons according to their 
 opinions, and as it most affects their consciences : Gill v. Caldwell, Breese, 28. 
 The oath of a Jew, complainant to an injunction bill, must be made according 
 to the forms and solemnities of the Jewish religion : Newman v. Newman, 3 
 Ilalst. Ch. Rep. 26. The manner of administering an oath or affirmation in a 
 court of record, proceeding according to the course of the common law, is pre- 
 sumed to be correct and legal, unless it appear to be otherwise on the fp.ce of the 
 record : Coxe v. Field, 1 Green 215. A Chinaman, who stated that he did not 
 know the name of the book he was SM^orn on, ])ut that he believed that if he 
 would state anything untrue the Court would punish him, and that after his 
 death he would " go down there," making an emphatic gesture downward with 
 his hand, was held to be competent. The Merrimac, 1 Benedict 490.
 
 32 EXCLUDING PRINCIPLES. 
 
 for all that he has done amiss, before a Judge from whom no secrets 
 are hid, will feel as strong a motive to declare the truth, and 
 to abstain from deception, as any person who acts under the obli- 
 gation of an oath.'' But so jealous is the law of any deviation from 
 the general rule, .that it confines the exception to the necessity of the 
 case, and only renders such declarations admissible when they relate 
 to the cause of death, and are tendered on a criminal charge respect- 
 ing it/ The exception in favor of Quakers, formerly confined to civil, 
 has lately been extended to criminal proceedings, and similar provi- 
 sions have been made in favor of some other religious sects.' 
 
 r*331 • 
 
 L -I *The rank or age of the party in no case forms an exception. 
 
 A peer of the realm cannot give evidence without being sworn,™ and 
 will incur a contempt of court if he refuses to be sworn." It is not 
 settled that the testimony of a child cannot be received except upon 
 oath," although the contrary practice once prevailed. ^ 
 
 Formerly, the general rule did not extend to the witnesses ex- 
 amined on behalf of prisoners charged upon an indictment with 
 felony or treason f an exception which certainly was not founded in 
 
 ^ This being the ground of the exception, it has been held that if the declarant 
 was an infant too young to comprehend such a sanction, the declaration is not 
 admissible ; Rex v. Pike, 3 C. & P. (14 E. C. L. R.) 598. 
 
 "= E. V. Mead, 2 B. & C. (9 E. C. L. R.) 605. 
 
 ' By the stat. 9 Geo. IV. c. 32, Quakers and Moravians are admitted to give 
 evidence upon their solemn affirmation in all caseS, criminal as well as civil. By 
 the stat. 3 & 4 Will. IV. c. 49, their affirmation has the same force and effect as 
 an oath in the usual form. By the stat. 3 & 4 Will. IV. c. 82, similar provisions 
 are extended to Separatists ; and, in consequence of the decision in Doraii's case, 
 2 Mood, C. C. 37, by the stat. 1 & 2 Vict. c. 77, to persons who, having been 
 Quakers or Moravians, have ceased to be such. 
 
 ■" Rex V. Lord Preston, Salk. 27S. 
 
 ° Ibid. And it has been said that the same rule applies to the Sovereign 
 himself; 2 Rol. Abr. 086 ; Hob. 213 ; but in the time of Car. I. the question was 
 not allowed to be agitated ; 1 Pari. His. 43. See 3 Woodeson 276 ; Com. Dig. 
 Testmoigne, A. 
 
 " Rex V. Brasier, Leach, C. C. L. 3d ed. 237 ; Ibid. 128 ; and see the cases, 
 East, P. C. 441 ; Pike's case, 3 C. & P. (14 E. C. L. R.) 598 ; R. v. Williams, 7 
 C. & P. 320 ; and post, tit. Infant. 
 
 P The Court should hear the information of children not of discretion to be 
 sworn without oath ; 1 Hale, II. P. C. 634 ; 2 Hale, H. P. C. 279, 284. But 
 Lord Hale adds, that such testimony is not sufficient of itself; 1 Hale, H. P. C. 
 634. 
 
 ^ Hut the evidence for a defendant upon an appeal, or on an indictment or in- 
 formation for a misdemeanor, was always on oath ; 1 Sid. 211, 325. 
 
 ■■ 2 Hale, 283 ; 2 JJulstr. 147 ; Rex v. Throijmorion, State Tr. 1 M. ; Hawk. c. 
 36 ; Rex v. Collcjc, 3 Inst. 79 ; 4 State Tr. 178 ; Cro. Car. 292.
 
 OATH. 33 
 
 principle, and which was reprobated by Lord Coke/ The statute 4 
 Jac. I. c. 1, directed, that upon the trial of offenders in the tiiree 
 northern counties, for offences committed in Scotland, the defendants' 
 witnesses should be examined upon oath ; and a like provision was 
 made by the stat. 7 Will. III. c. 3, in all cases of treason which 
 worked corruption of blood. The exception was finally and generally 
 abolished by the *stat. 1 Anne, c. 9, s. 3, which directed that i -^o^-i 
 the witnesses for the prisoner should be sworn in all cases. 
 
 The recent Bankruptcy Acts' have also introduced another excep- 
 tion, so far as the examination of the bankrupts and their wives 
 before the Commissioners is concerned, by directing that on that 
 inquiry they shall not be sworn, but make and sign a declaration 
 that they will speak the truth, for a violation of which they may be 
 indicted. 
 
 It will presently be seen under what circumstances evidence is 
 admissible, though it want the sanction of an oath. 
 
 And next, the power given to the party against whom evidence is \ 
 offered, of cross-exayimiing the witness upon whose authority the \ 
 evidence depends, constitutes a strong test both of the ability and of 
 the willingness of the witness to declare the truth. By this means, \ 
 the opportunity which the witness had of ascertaining the fact to 1 
 which he testifies, his ability to acquire the requisite knowdedge, his 1 
 powers of memory, his situation with respect to the parties, his/ 
 motives, are severally examined and scrutinized. 
 
 It is not intended in this place to eater into a detail of the 
 numerous consequences which follow from the adoption of this test." 
 It may be observed, generally, that it operates to the exclusion of all 
 that is usually described as res iyiter alios acta; that is, to all declara- 
 tions and acts of others which tend to conclude or affect the rights of 
 a mere stranger. 
 
 Thus the depositions of witnesses before magistrates, under the 
 
 statutes of Philip and Mary, and the late stat. 7 Geo. IV. c. 64, are 
 
 not admissible against the accused, unless he has had an opportunity 
 
 to cross-examine those witnesses. 
 
 The voluntary affidavit of a stranger is not evidence r*o-n 
 
 to [*3o] 
 
 *against one who had not the power to cross-examine him.'' 
 
 ' 3 Inst. 79. The practice was derived from the civil law ; 4 Bl. Com. 352. 
 ' 8 & 9 Vict. c. 48, s. 1 ; 12 & 13 Vict. c. 106, ss. 117, 118. 
 " See tit. Judgments — Depositions. 
 
 ^ Bac. Abr. Ev. 627 ; Sty. 446 ; Bac. Abr. Ev. 628 ; and see Eex v. EritJi, 8 
 East 539 ; Sir John Femcick's case, Obj. 4 ; 5 State Tr. 69. 
 3
 
 35 EXCLUDING PRINCIPLES. 
 
 An answer in Chancery is not evidence against one who neither was 
 a party to the suit, nor claims in privity with a party who had the 
 opportunity/ And, in general, the mere act, declaration or entry of 
 a stranger, as to any particular fact, is not evidence against any 
 other person,^ so as to conclude or affect him. 
 
 To satisfy this principle, it is not necessary that the party on 
 whose authority the statement rests should be present at the time 
 when his evidence is used, in order that he may then be cross- 
 examined; it is sufficient if the party against whom it was offered 
 has cross-examined, or has had the opportunity, having been legally 
 called upon to do so Avhen the statement was made. Hence it is 
 that examinations or depositions taken in a cause or proceeding 
 between the same parties are evidence, the witnesses or deponents 
 being dead ; for in such case, the party has had, or might have had, 
 the benefit of a cross-examination. With respect to these classes of 
 cases, it is worthy of notice, that if the party might have had the 
 benefit of a cross-examination in the course of a judicial proceeding, 
 it is the same thing as if he had actually availed himself of the 
 opportunity. It is also to be observed, that if the examination or 
 deposition was taken in the course of an extrajudicial proceeding, 
 it will not afterwards be admissible in evidence, although the witness 
 be since dead ; because the party against whom the evidence is offered 
 was under no obligation to pay any attention to it.** 
 
 This test of truth not only excludes. evidence of mere hearsay, for 
 there the party on whose authority the statement rests cannot be 
 P^qp-i cross-examined; but also decrees *and judgments in private 
 matters, in causes to which the party against whom they are 
 offered was not privy, and consequently where he had not the oppor- 
 tunity to cross-examine the witnesses on whose testimony the judg- 
 ment or decree was founded. For, as it would be dangerous to 
 admit the testimony of a witness given upon a former occasion, 
 where the party to the present cause had no opportunity to cross- 
 examine him, it would be equally so to admit the judgment or decree 
 which is founded upon that testimony ; it would be indirectly giving 
 full effect to evidence which is in itself inadmissible.^ 
 
 y Ilardres. 315, ^ See Index, tit. Res inter alios. 
 
 *"Sec tit. IIes inter alios — Judicial Proceedings, iSrc. 
 
 ' It seems hardly necessary to note that the subject-matter of dispute must 
 bo tlic same in both cases: Walker v. Walker-, 16 S. & R. 379 ; Taylor v. Bank 
 of 11111101.1, 7 Monr. 070. AVlicre the subject-matter is the same, though the 
 l)iirtics iiro not the same, it is oiiouji;h that thoy are in privity : Cooper \. Smith,
 
 CROSS-EXAMINATIO N II E A R S A Y. 36 
 
 It is, however, to be observed, that there is one class of cases 
 where decrees or judgments are evidence against a party, although 
 he was not actually privy to the proceeding or suit in which the 
 judgment or decree was pronounced. This happens where the suit 
 or proceeding does not relate to a mere private transaction between 
 individuals or particular parties, but to some more public subject- 
 matter beyond the mere rights of the litigants, in which the public 
 possesses an interest. It will be necessary hereafter to consider 
 these cases with some minuteness ; for the present, it may suffice to 
 advert to them generally, and briefly to state the principle on which 
 such evidence is admissible ; and how far it is inconsistent with the 
 general and ordinary rule, that a party is not to be affected either 
 by any testimony or judgment founded upon that testimony, where 
 
 8 Watts 536 ; Merrill v. Bill, 6 Sm. & Marsh. 730. The question of boundary 
 is a peculiar one. There a deposition may be read, though not regularly taken 
 in a judicial proceeding, because it is a case in -which even hearsay is admissible 
 under certain restrictions: Montgomery v. Dickey, 2 Yeates 212: Bakertw Day. 
 3 Wash. C. C. 243. Depositions cannot be read, unless taken in reference to an 
 issue made up at the time they were taken : Morrow v. Hatfield, 6 Humph. 108. 
 
 The testimony of a deceased witness may be given in evidence upon a subse- 
 quent trial of the same cause. It is also competent, in a subsequent suit between 
 the same parties or their privies, provided the point in issue be the same : Orr 
 V. Hadley, 36 N. 11. 575. To render it admissible it is not material that the par- 
 ties should be identical, or that there be complete mutuality in respect to their 
 relation to each other. It is enough if the same matter was in issue in both cases, 
 and those against whom the deposition is offered, or those under whom they 
 claim had the opportunity of cross-examination : Wade v. King, 19 111. 301 ; 
 HaiqM V. Henninger, 1 Wright 138; Cannon v. White, 16 La. Ann. 85. See 
 Woods V. Keyes, 14 Allen 236 ; Cantrell v. Hewlett, 2 Buck 311 ; Wilder v. St. 
 Paul, 12 Minn. 192 ; Adair v. Adair, 39 Ga. 75 ; State v. Staples, 47 N. H. 113; 
 Camden R. B. Co. v. Stewart, 4 Green 343 ; Cook v. Stout, 47 111. 530; O^Brien 
 V. Comen, 6 Burke 563 ; Birney v. Mitchell, 34 N. J. Law 337. 
 
 The notes of an attorney of the testimony of a deceased witness, taken on a 
 former trial of the same cause, which he swears he believes to be correct, though 
 he does not remember the evidence, are admissible : Ashe v. De Rossett, 5 Jones 
 (Law) 299. The notes are inadmissible as evidence per se; but the attorney 
 may testify as to the evidence of the deceased witness, and will be allowed to 
 use his notes as memoranda to refresh his memory : Waters v. Waters, 35 Md. 
 531. Evidence of the testimony of a deceased witness at a former trial of a 
 criminal charge is admissible at a second trial for the same offence : Pope v. 
 State, 22 Ark. 371. The substance of testimony given on a former trial by a 
 witness now deceased is admissible : Tramm,ell v. Hemphill, 27 Ga. 525. A wit- 
 ness is not competent to testify to what a deceased witness stated on a former 
 trial, unless he can state the substance of the whole of his evidence : Tibbetis v. 
 Flanders, 18 N. H. 284 ; Home v. Williams, 23 Ind. 37 ; Thurmond v. Trammell, 
 28 Tex. 371 ; Burson v. Huntington, 21 Mich. 415.
 
 36 EXCLUDING PRINCIPLES. 
 
 he has not had an opportunity to cross-examine the witness and to 
 controvert his testimony. In many instances a court possesses a 
 jurisdiction which enables it to pronounce on tlie nature and qualities 
 of a particular subject-matter, where the proceeding is, as it is tech- 
 nically termed in rem : as where the Ordinary or the Court Chris- 
 tian decides upon questions of marriage or bastardy ; or the Court of 
 Exchequer upon condemnations ; or the Court of Admiralty upon 
 questions of prize; or a Court of Quarter Sessions upon settlement 
 cases. *Decisions of this nature, as will be seen,'' are for the 
 L -J most part binding and conclusive upon all the world. At 
 present it is to be observed, in the first place, that this class of cases 
 is scarcely to be considered as an exception to the general rule: 
 because, in most instances, every one who can possibly be affected by 
 the decision may, if he choose, be admitted to assert his rights to 
 cross-examine and to controvert by evidence. But, secondly, if this 
 class of cases is to be considered as forming an exception to the 
 general rule, it is a necessary exception, since in such cases a final 
 adjudication is absolutely essential to the interests of society, which 
 require that the subject-matter should be settled and ascertained, and 
 cannot bear that such questions should be left in a precarious, doubt- 
 ful, and fluctuating state. For example : the Spiritual Court has an 
 immediate and direct jurisdiction upon the validity of marriages ; a 
 jurisdiction which involves questions of the greatest importance to 
 society in general — rights of property — questions of bastardy — and 
 even criminal liabilities. It is therefore obviously essential to the 
 existence of such a jurisdiction for useful and beneficial purposes, 
 that its adjudication upon the subject-matter should be binding upon 
 all ; it would be in vain that a sentence of nullity of mai'riage should 
 be pronounced in a Spiritual Court, if the marriage could still be 
 considered in courts of law to exist as to all the legal rights and 
 consequences of a valid marriage; and it would produce infinite 
 inconvenience and confusion, if the same marriage could be con- 
 sidered as existing for some purposes, but not as to all ; not to men- 
 tion the great evil of permitting iiiterminable litigation on the same 
 question, which would be left open to dispute as often as the fluctua- 
 tion of times and of circumstances introduced new interests, and 
 brought fresh litigants into the field. 
 
 *There is another exception to the general rule, in the case 
 L ' -• where a declaration made by a person in extremis, and under 
 the apprehension of approaching dissolution, is received in evidence; 
 '' Sec Judgments, &e., in Rem.
 
 CROSS-EXAMINATION — DYING DECLARATION. 38 
 
 for such declarations are admitted to be proved, although the party 
 against whom they are offered was not present, and therefore had 
 not an opportunity to cross-examine and elicit the whole of the 
 truth. But as this is an exception to a rule which is in general to 
 be considered as absolutely essential to the ascertainment of trutb, 
 it is to be received with the greatest caution, and is never admitted, 
 unless the court be. first satisfied that the party who made the decla- 
 ration Avas under the impression of approaching death, and unless it 
 relate to the cause of his death and be tendered on a criminal charge 
 respecting it.^ It has indeed been said, that the depositions of wit- 
 nesses taken in the absence of the prisoner before justices of the 
 peace, and before coroners, by virtue of the statutes 1 & 2 Philip k 
 Mary, c. 10 ; 2 & 3 Philip & Mary, c. 13 ; and 7 Geo. IV., c. 64 : 
 were admissible in evidence against the prisoner after the death of 
 the deponent ; but it is now settled that such depositions before 
 justices are not admissible, unless the prisoner was present, and had 
 the benefit of cross-examination ;'^ and depositions taken by coroners, 
 
 •^ See tit. Depositions. 
 
 ' A dying declaration having been admitted in evidence, evidence that the de- 
 ceased was a disbeliever in a future state of reward and punishments, is admis- 
 sible to discredit it: Goodall v. State, 1 Oreg. 333 ; Neshit v. State, 43 Ga. 238. 
 
 Dying declarations are inadmissible unless the declarant believed that death 
 was impending not distant, and unless death actually ensued : Kilpatrick v. The 
 Cumm'th, 7 Cas. 198; State v. Cornish, 5 Harring. 502; BalVs case, 14 Gratt. 
 613; Thompson v. State, 24 Ga. 297; McHugh v. State, 31 Ala. 317; Brown v. 
 State, 32 Miss. 433; Rohhlns v. State, 8 Ohio (N. S.} 131 ; State v. Nash, 7 
 Clarke 347 ; State v. Centre, 35 Vt. 378 ; People v. Sanchez, 24 Cal. 17 ; Murphij v. 
 People, 37 111. 447 ; Benavides v. State, 31 Tex. 579 ; Hachett v. People, .54 Barb. 
 370 ; Morgan v. State, 31 Ind. 193 ; People v. Perry, 8 Abb. Pr. N. S. 27 ; Jach 
 son v. ComrnHh, 19 Gratt. 656 ; Young v. CommHh, 6 Buck 312; State v. Quick, 
 15 Rich. (Law) 342 ; Whitley v. State, 38 Ga. 50 ; People v. Vernon, 35 Cal. 49 ; 
 CommHh v. Deasmon, 12 Allen 535; People v. Kuapp, 1 Edm. Sel. Cas. 177; 
 State V. Wilson, 23 La. Ann. 558 ; Dixon v. State, 13 Fla. 636 ; Barnett v. People, 
 54 111. 325 ; Comm'th v. Briiton, 1 Camp. 13 ; Hill v. State, 41 Ga. 484 ; Biding v. 
 Johnson, 32 Ind. 155. The declaration, however, must state facts, not opinions 
 merely: State v. Williams, 67 N. C. 12; Wroo v. State, 20 Ohio St. 460. It is 
 restricted to the trial of the identical homicide of the person who makes the 
 declaration : Hudson v. State, 3 Cald. 355. As to the admissibility of such 
 declarations in civil suits see Insurance Co. v. Mosley, 8 Wall. 397 ; Contra, 
 Wootcn V. Wilkins, 39 Ga. 223 ; Marshall v. Chicago R. R. Co., 45 111. 475. The 
 declarations of persons injured as to their pains and symptoms are admissible : 
 Matteson v. Keiv York R. R. Co., 62 Barb. 364 ; Toiole v. Blake, 48 N. II. 92 ; 
 Taylor v. Grand Trunk R. R. Co., Ibid. 304; Parkey v. Yeary, 1 Ileisk. 157; 
 Stiles \. Danville, 43 Vt. 282; Insurance Co. v. Mosley, 8 Wall. 397; Rogers v. 
 Crain, 30 Tex. 284. But see Ashland v. Marlborough, 99 Mass. 47.
 
 38 EXCLUDING PRINCIPLES. 
 
 under the same statutes, seem to stand upon the same foundation. 
 The subject will afterwards be more fully considered in its proper 
 place; it must be recollected that at present the object is to consider 
 the general operation of this principal test of truth established by 
 the law. How far reputation and tradition are to be looked upon 
 as exceptions to this general rule will presently be considered. "^ 
 
 *Thus far as to the testimony of witnesses to facts, within 
 L -I their own actual knowledge, under the obligation of an oath, 
 and subject to cross-examination. 
 
 The topic of the admissibility of evidence derived through the 
 testimony of others will shortly be discussed, but before dismissing 
 the present portion of the subject of excluding principles, another 
 rule which operates to the exclusion of evidence, not generally, but 
 on comparison with other and more satisfactory evidence, as well as 
 some other minor rules, ought to be noticed. It is a general rule 
 of evidence already adverted to, that evidence of an inferior degree 
 shall not be admitted whilst evidence of a higher and more satis- 
 factory degree is attainable.^ This rule, it will be seen, depends on 
 a well-founded jealousy that the best evidence is withdrawn, and the 
 inferior substituted, from a desire to suppress the truth. As this 
 is a principle which affects the course and order of proof, its appli- 
 cation will be better considered hereafter, in conjunction with other 
 rules applicable to the nature and modes of proof. 
 
 There are, also, some instances where the law excludes particular 
 evidence, not because in its own nature it is suspicious or doubtful, 
 but on grounds of public policy, and because greater mischief and 
 inconvenience would result from the reception than from the exclu- 
 sion of such evidence; on this account it is a general rule that the 
 husband and wife cannot give evidence to affect each other, either 
 civilly or criminally.^ For to admit such evidence would occasion 
 
 •^ There are also some exceptions which have been introduced by, and which 
 wholly depend upouj particular statutes ; but as these are mere arbitrary excep- 
 tions, unconnected with general principles, they need not be noticed here. 
 
 • Taylor v. Riggs, 1 Peters S. C. Rep. 596 ; Cutbush v. Gilbert, 4 S. & R. 551 ; 
 Diickwall V. Weaver, 2 Ohio 13. 
 
 ■^ A widow is incompetent to prove confidential communications of her former 
 iiiisband : Kcator v. Dimmick, 4() Barb. 158 ; but conversations between husband 
 ;ind wife in presence of a third person are admissible: Queener v. Morrotv, 1 
 <'ald. 12:5 ; Allison v. Barrow, 3 Cald. 414. A widow is a competent witness on 
 brjijilf of the (istate of lior deceased husband to prove a conversation between 
 lii-r husband and the ojjposite party : Sliihlmiiller v. Eiring, 3',) Miss. 447. So a 
 survisiii^ wife may testify as to matters in wliicli her deceased husband was
 
 CONFIDENTIAL COMMUNICATIONS. 39 
 
 domestic dissension and discord ; it would compel a violation of that 
 confidence which ought, from the nature of tiie relation, to be 
 regarded as sacred ; and it would be arming each of the parties Avith 
 the means of offence, which might be used for very dangerous 
 purposes.'' 
 
 * Upon the same principle, the law prohibits a barrister, ^^ .„., 
 solicitor, or attorney, from divulging that which has been ^ J 
 reposed in him confidentially by his client.^ This prohibition rests 
 on very obvious principles of convenience and policy. It is abso- 
 lutely essential to the ends of justice that the fullest confidence should 
 prevail between a litigant and those who conduct his cause : and it is 
 equally clear that there would be an end of all such confidence, if the 
 
 " Co. Litt. 6, b. See Vol. II., Husband and Wife. The rule, it will be seen, 
 does not extend to criminal charcres founded on violence offered to the wife, and 
 the County Courts Act, 9 & 10 Vict. c. 95, s. 83, also creates an exception to it. 
 
 interested, unless she acquii'ed her knowledf^e of the facts throui^h confidential 
 communications from her husband : Ryan v. FoUansbee, 47 N. H. 100 ; English 
 V. Cropper, 8 Buck 292, Either husband or wife may voluntarily disclose 
 confidential communications : Southwick v. Southwick, 2 Sweeny 234; 9 Abb. 
 Pr. N. S. 109. 
 
 ^ To exclude the testimony of counsel it is not necessary that there should be 
 a cause depending in court at the time that his information on the subject was 
 acquired : Beltzhoover v. Blackstock, 3 Watts 20. He may give evidence of col- 
 lateral facts, such as that a bond was lodged with his client, by way of indem- 
 nity, or that his client expressed himself satisfied with a certain security : Heis- 
 ter V. Davis, 3 Yeates 4. So, when without any communication from his client, 
 he acquires a knowledge of his handwriting, he may be questioned as to its 
 identity : Johnson v. Duverne, 19 Johns. 134. And he may be examined whether 
 a note put into his hands to collect was endorsed or not : Baker v. Arnold, 1 
 Cains 258; see also Chirac v. Rheinecker, 11 Wheat. 280; Riggs v. Denniston, 
 3 Johns. Cas. 198; Brandt v. Klein, 17 Johns. R. 335; Jackson v. McVey, 18 
 Johns R. 330; Hoffman v. Smith, 1 Gaines R. 157. And if, after the relation 
 has ceased, a former client repeat to his attorney voluntarily, and without any 
 artifice, used for that purpose, communications previously made, he is a compe- 
 tent witness as to such communications : Jordan v. Hess, 1-3 Johns. R. 492. An 
 attorney, who was employed by two several defendants to defend a suit, and 
 who entered an appearance for all the defendants, without the knowledge and 
 consent of part of them, is a competent witness in a subsequent suit for con- 
 tribution between the defendants who employed him, and those who did not : 
 Cox^s Ad'r. v. Hill, 3 Ohio Rep. 423. A student in the office of an attorney, 
 acquiring his knowledge of facts while he was in the office : Andrews v. Solomon, 
 1 Pet. 356 ; a confidential clerk : Corp v. Robinson, 2 Wash. C. C. Rep. 388 ; or 
 a confidential agent or factor : Holmes v. Comegys, 1 Dall. 439 ; (dubitatum in 
 Morris v, Vanderen, 1 Dall. 66 :) or a physician : Heu^ett v. Prime, 21 Wend. 79 ; 
 are not privileged. G.
 
 40 EXCLUDING PRINCIPLES. 
 
 agent could be compelled to divulge all he knew. It is sufficient 
 here, according to the plan originally proposed, to state this principle 
 generally : its practical operation and effect, as to the relative situa- 
 tion of the parties when the communicatiou was made, the nature, 
 time, and manner of the communication, will be discussed hereafter.*^ 
 It may be observed here, that this is the privilege, not of the counsel 
 or attorney, but of the client ; and, therefore, that the former ought 
 not to be allowed to divulge his client's secrets, even though he should 
 be willing to do so. 
 
 The same principle evidently applies to the case of an attorney's or 
 barrister's clerk, and of an interpreter between an attorney and his 
 client.^ 1 
 
 ''See Vol. II., tit. Confidential Communication. 
 
 8 Da Barre v. Livette, Peake, N. P. C. 77. 
 
 ^ Rhoads v. Selin, 4 Wash. C. C. Rep. 718 ; Chirac v. Relnicker, 11 Wheat. 
 280 ; Jordan v. Hess, 13 Johns. 492 ; Parker v. Carter, 4 Munf. 273 ; Craivford 
 V. McKissack, 1 Port. 433 ; Jenkinson v. The State, 5 Blackf. 465 ; Chew v. 
 Farmers'' Bank, 2 Md. Ch. Decis. 231. The privilege is not confined to facts 
 disclosed in relation to suits pending, but extends to all cases in which a counsel 
 or attorney is applied to, in the line of his profession, whether such facts were 
 communicated with an injunction of secrecy or for the purpose of asking advice 
 or otherwise : Parker v. Carter, 4 Munf. 273 ; Beltzhover v. Blackstock, 3 Watts 
 20; Wheeler v. Hill, 4 Shepl. 329; Marsh v, Ludlum, 3 Sanf. Ch. Rep. 35; 
 Crosby v. Berger, 11 Paige 377 ; Aiken v. Eilburne, 27 Me. 253 ; Bank of Utica 
 V. Mersereau, 3 Barb. Ch. R. 528 ; McLellan v. Longfelloio, 32 Me. 494 ; Weather- 
 bee V. Ezekiel, 25 Vt. 47 ; Rileij v. Johnston, 13 Ga. 260 ; Parkhurst v. McGraiv, 
 24 Miss. 134. Attorneys are bound to testify as to any matter concerning their 
 clients which has come to their knowledge in any other way than by confiden- 
 tial communication : Rhoads v. Selin, 4 Wash. 0. C. Rep. 718; Rogers v. Dare, 
 Wright 136 ; Heister v. Davis, 3 Yeates 4 ; Johnson v. Duverne, 19 Johns. 134; 
 Coolney v. Tannahill, 1 Hill 33 ; Bogert v. Bogert, 2 Edw. Ch. Rep. 399 ; Granger 
 V. Warrington, 3 Gilm. 299 ; Levors v. Van Buskirk, 4 Barr 309 ; Pierson v. 
 Stroriz, 1 Morris 136. Counsel may be asked by whom he was retained : Chirac 
 T. Rienecker, 11 Wheat. 280; Brown v. Payson, 6 N. II. 443; Cox v. Hill, 3 
 Hamm. 411 ; Caniff v. Myers, 15 Johns. 246; Goioer v. Emery, 6 Shepl. 79; 
 Wheeler V. Hill, 4 Shepl. 329. If, after the relation of attorney and client has 
 ceased, the client voluntarily repeat to the attorney what he has communicated 
 while that relation existed, he is a competent witness as to this communication : 
 Jordan v. Hess, 13 Johns. 492. An attorney is not j)rivileged as a witness from 
 communicating facts, concerning his client, where he is himself a party to the 
 transactions or agreement, which he is called upon to disclose; tlicrefore it was 
 held that an attorney wlio was summoned as garnislico in an attachment sur 
 judgment, was bound ♦o answer interrogatories as to whether he had received 
 from his client a sum of money, in trust to pay a certain percentage, to such of 
 his creditors as would accept the same in full satisfaction of tlieir respective 
 debts : Jeancs v. Fridrnbtrg, 5 I'cnna. Law .Journal 65. An attorney is not to
 
 CONFIDENTIAL COMMUNICATIONS, 40 
 
 Here, however, the law draws the line, and the principle of 
 policy which, in the instance of husband and wife, and of attorney 
 
 judge what is or is not privileged. He must state the occasion and circumstances 
 of the act or communication, and the general nature of the matter alleged to be 
 privileged, so that the Court may decide vrhether he shall be compelled to tes- 
 tify in regard to it or not : Jeanes v. Frideiiherg, 5 Penna. Law Journal 65. 
 This rule does not, however, apply when the client has no interest in the suit 
 in which the attorney is called to testify. Therefore, in an action by the payee 
 against the maker of a promissory note, in whfch the defence was that the 
 amount of the note had been paid by an assignment made by the defendant to 
 the plaintiff of a mortgage given to the defendant, and it appeared that a suit 
 had been brought by the assignee upon the mortgage, and that it had failed on 
 the ground of the mortgage having been paid previously to the assignment, it 
 was held that the attorney and counsel of the mortgagor might be required to 
 testify on the part .of the plaintiif as to the facts, respecting the payment of the 
 mortgage, which he had acquired as attorney : Hamilton v. Neel, 7 Watts 517. 
 A debtor requested an attorney to draw up a mortgage of his personal property, 
 and disclosed the purpose of the transaction, but neither asked nor received any 
 legal advice as to its effect — the attorney's testimony as to such disclosure is 
 admissible: Hatton v. Bobinson, 14 Pick. 416 ; Contra, Bank of Utica v. Merse- 
 reau, 3 Barb. Ch. Rep. 5:2S ; Moore v. Brai/, 10 Barr 519 ; Crisler v. Garland j 
 11 Sm. & M. 136. Communications made to an attorney in his professional 
 capacity, by an owner of property, respecting a transfer of it, are privileged : 
 Foster v. Ball, 12 Pick, 89 ; Beltzhoover v. BlackstocJc, 3 Watts 20. A com- 
 munication voluntarily made to counsel, after he has refused to be employed by 
 the party making it, does not come within the rule of confidential communica- 
 tions : Sitzar v. Wilson, 4 Ired, 501 ; Beeson v. Beeson, 9 Barr 279. But not 
 such as are made before : Beed v. Smith, 2 Cart. 160, An attorney who draws 
 up a will is competent to testify of its contents, in order to set it up as a last 
 will ; and his testimony is not subject to the objection that it discloses confiden- 
 tial communications of a client: Graham, v. 0^ Fallon, 4 Mo, 338, Counsel pro- 
 fessionally consulted may be compelled to testify, if the privilege be waived by 
 the party who consulted him, although the subject has been assigned to a third 
 person who objects: Benjamin v. Coventry, 19 Wend, 353, The seal of profes- 
 sional confidence has never been held to cover a communication made to an 
 attorney to obtain professional advice or assistance as to the commission of a 
 felony or any other crime, which is malum in se : Bank of Utica v. Mersereau, 
 3 Barb. Ch. Rep. 528. An attorney or counsel who, as such, has been intrusted 
 with papers, is not bound to produce them on the call of the opposite party or 
 of a third person : Jackson v. Burtis, 14 .Johns. 391 ; Lynde v. Judd, 3 Day 499 ; 
 Durkee v. Leland, 4 Vt, 612. Yet he may be called on to prove the existence 
 of such papers, and that they are in his possession, so as to enable the opposite 
 party, on the attorney's refusal to produce them, to give parol evidence of their 
 contents : Bhoads v. Selin, 4 Wash, C, C, Rep, 718 ; Brandt v. Klien, 17 Johns. 
 335 ; Jackson v, McVey, 18 Johns. 330 ; Coolney v. Tannahill, 1 Hill 33. A party 
 wishing to avail himself in evidence of a paper in possession of his adversary's 
 attorney, must give notice to produce it : he cannot compel its production by a 
 subpoena to the attorney: ifcPAerson v. ^a^Aftone, 7 Wend, 216, Facts stated
 
 40 EXCLUDING PRINCIPLES. 
 
 and client, forbids a violation of confidence, ceases to operate. 
 The law will not permit any one to withhold from the information of 
 the jury any communication which is imp^prtant as evidence, how- 
 ever secret and confidential the nature of that communication may 
 have been, although it may have been made to a physician or sur- 
 geon, or even to a divine, in the course of discharging his profes- 
 sional duties ; for it has even been held that a minister is bound to 
 disclose that which has be.en revealed to him as a matter of religious 
 confession.'' ^ 
 
 *Upon a principle of humanity, as well as of policy, every 
 L -^ witness is protected from answering questions by doing 
 which he would criminate himself.^ Of policy, because it would 
 
 ^ Butler V. Moore, Macnally 253 ; Vaillant v. Dodemead, 2 Atk. 524 ; E. v. 
 .Gilham, Mood. C. C. 186. 
 
 to an attorney to show that the cause in which he is thought to be retained does 
 not conflict with the interests of a client for whom he is already employed, are 
 not confidential communications : Heaton v. Findlay, 2 Jones 304. The pri- 
 vilege does not apply to a student in the office of an attorney : Barnes v. Harris, 
 7 Cush. 576 ; Andrews v. Solomon, Peters C. C. 356 ; Holman v. Kimball, 22 Vt. 
 555. Nor to a stranger casually present : Jackson v. French, 3 Wend. 337. 
 
 ^ That a confession made to a Roman Catholic priest is not evidence, see 
 Smith's case, 1 Roger's Rec. 77 ; Contra, per Gibson, C. J. ; Simon^s ExWs v. 
 Gratz, 2 Penna. Rep. 417. But confessions to a Protestant divine are not pri- 
 vileged: Smith's case, supra; Commomvealth v. Drake, 15 Mass. 161, See 
 Phillip''s case, Sampson's Roman Catholic Question in America, Pamphlet. 
 Witnesses must testify what a party told to them in confidence and under an 
 engagement of secrecy, unless they are attorneys of the party in the cause ; 
 Mills V. Grisivold, 1 Root 383. A telegraphic operator is not privileged to re- 
 fuse to give contents of telegram : State v. Litchfield, 58 Me. 267. 
 
 ^ To excuse a witness from answering a question on this ground, the Court 
 must see that the answer may in some way criminate the witness or render him 
 infamous, involve him in shame or i-eproach, or expose him to penalties or pun- 
 ishment, in any of which cases he is not bound to answer a question : Tlie Peo- 
 ple v. Mather, 4 Wend. 229 ; Territory v. Nugent, 1 Mart. R. 114; Vandervoort 
 V. The Col. Ins. Co., 3 Johns. Cas. 137 ; Jackson v. Humphrey, 1 Johns. R. 498 ; 
 Grannis v. Brandon, 5 Day 260 ; Respublica v. Gibbs, 3 Yeates 429, 437 ; Gal- 
 braith v. Eichelberger, 3 Yeates 515; Vaugh v. Perrine, 2 Penna. 728 ; Marbury v. 
 Madison, 1 Cranch 144 ; U. S. v. Darnaud, 3 Wall. Jr. 143, 179 ; State v. Staples, 
 47 N. H. 1 13 ; Taylor v. Jennings, 5 Rab. 581 ; Clark v. Reese, 35 Cal. 89 ; Ford 
 V. State, 29 Ind. 541 ; Foster v. People. 18 Mich. 266 ; Simmons v. Holster, 13 
 Minn. 249 ; J'Jaton v. Farmer, 46 N. II. 200; Lea v. Henderson, 1 Cald. 146; 
 Jie Lewis, 39 How. Pr. 155 ; State v. Hopkins, 23 Wis. 309 ; Peal v. People, 42 
 N. Y. 270; Tifft V. Moon, 59 Barb. 619; Forney v. Ferrill, 4 W. Va. 729; 
 Comm. V. Curtis, 97 Mass. 574. The rule of practice upon this subject was thus 
 stated by Chief Justice Marshall : " It is the province of the Court to judge
 
 SELF-CRIMINATION STATE SECRETS. 41 
 
 place the witness under the strongest temptation to commit the crime 
 of perjury ; and of humanity, because it would be to extort a con- 
 fession of the truth by a Jcind of duress, every species and degree of 
 which the law abhors." It is pleasing to contrast the humanity and 
 delicacy of the law of England in this respect with the cruel pro- 
 visions of the Roman law, which allowed criminals, and even wit- 
 nesses in some instances, to be put to the torture, for the purpose of 
 extorting a confession.-"^ 
 
 ' It is partly upon this principle that an examination of a prisoner, taken 
 before a magistrate on oath, cannot be afterwards read against him as a confes- 
 sion. And evidence extorted in violation of this privilege cannot be used to 
 establish an indictment for the crime against the witness : Reg. v. Garhett, 2 
 Car. & K. (61 E. C. L. R.) 474. 
 
 J See Quintilian's Inst. ; C. De Tormentis, Pan. lib. 48, s. 242. See the cases 
 on this subject coWected. post, tit. Witness. 
 
 whether any direct answer to the question, which may be proposed, will furnish 
 evidence against the witness. If such answer may disclose a fact, which forms 
 a necessary and essential link in the chain of testimony which would be suffi- 
 cient to convict him of any crime, he is not bound to answer it, so as to furnish 
 matter for that conviction. In such a case the witness must himself judge what 
 his answer will be, and if he says on oath he cannot answer, without accusing 
 himself, he cannot be compelled to answer:" United States v. Burr, 1 Burr's 
 Trial 245 ; see also State v. Edwards, 2 Nott & M'Cord 13. A witness may 
 be asked a question, the answer to which will criminate him ; and if he has no 
 objection, may answer it; his privilege is personal only; but it is the duty of 
 the Court to advertise him of it : Southard v. Rexford, 6 Cow. 254. And if he 
 voluntai'ily state a fact, he is bound to state how he knows it, though it crimi- 
 nate him : State v. K., 4 N. H. 562. Thus he cannot be compelled to say 
 whether or not he had ever had criminal connection with the plaintiff. Ibid. 
 Nor whether he had not been convicted of petit larceny, and whether he was 
 not then in confinement under that conviction : The People v. Herrick, 13 
 Johns. 82. But he may be called and examined in a matter pertinent to the 
 issue when his answers will not expose him to criminal prosecution, or tend to 
 subject him to a penalty or forfeiture, though they may otherwise affect his pecu- 
 niary interest: Bull v. Loveland, 10 Pick. 9 ; Taney v. Kemp, 4 liar. & Johns. 
 348 ; Stoddart v. Manning, 2 liar. & Gill. 147 ; Baird v. Cochran, 4 S. & R. 
 397; Nass v. Va7i Swearingen, 7 S. & R. 192; Gorham v. Carol, 3 Lit. 221; 
 Canover v. Bell, 6 Monr. 157 ; Cobb v. Upham, 3 N. H. 159 ; Comm'th v. 
 Thurston, 7 J. J. Marsh. 03 ; Planters^ Bank v. George, 6 Mart. 670. Contra, 
 Benjamin v. Hathaway, 3 Conn. 528 ; Storrs v. Wetmore, Kirby 203 ; Starr v. 
 Tracy, 2 Root 528 ; Cook v. Corn, 1 Overt. 340 ; Appleton v. Boyd, 7 Mass. R. 
 131. Per Marshall, C. J., United States v. Grundy, 3 Cranch 344; Tatem's 
 Executors v. Lofton, Cooke 115. So in the case of liability to a forfeiture of 
 money won at play, a party must answer on a bill of discovei-y : Slaman v. 
 Kelly, 4 Younge & Collyer 169 ; see also Mauran v. Lamb, 7 Cow. 174. See 
 post, p. 204, note. G. 
 
 * People V. Herrick, 13 Johns. 82; Grannis v. Brandon, 5 Day 260 ; State v. 
 Bailey, 1 Penn. 415; United States v. Craig, 4 Wash. C. C. Rep. 729; Poindex-
 
 41 EXCLUDING PPINCIPLES. 
 
 There are some instances in which particular evidence is excluded 
 on the ground of policy, where the disclosure might be prejudicial to 
 
 ter V. Davis, 6 Gratt. 481. It is not confined, however, to cases where the 
 answer of the witness would render him liable to a criminal proceeding or 
 penalty. It is enou.o;h if his answer will have a tendency to stigmatise or dis- 
 grace him : Vaughn v. Paine, 2 Penn. 728 ; Sodusky v. McGee, 5 J. J. Marsh. 
 621; United States v. Dickinson, 2 McLean 325; The People v. Rector, 14 
 Wend. 569 ; Lohman v. People, 1 Comst. 379 ; Contra, Clementine v. State, 19 
 Mo. 112. It is not proper to ask a witness whether he has ever been convicted 
 of a felony : the answer tends to degrade his character, and the fact is provable 
 by a higher evidence of it — the record of his conviction : Kirschner v. State, 9 
 Wise. 140. It is however the privilege of the witness, and he may waive it if 
 he thinks proper : Fries v. Brugler, 7 Halst. 79 ; Southard v. Rexford, 6 Cow. 
 254; Sodusky v. McGee, 5 J. J. Marsh. 621 ; The State v. Patterson, 2 Ired. 
 .346 ; Short v. The State, 4 Barring. 5(j8 ; Howel v. The ComniHh, 5 Gratt. 664 ; 
 CommHh v. Shaw, 4 Cush. 594; Green v. Starnes, I Heisk. 582. If the witness 
 voluntarily states a fact, he is bound to state how he knows it, although in so 
 doing he may expose himself to a criminal charge. If he state any part he must 
 state the whole: State v. K., 4 N. H. 562 ; Chamberlain v. Willson, 12 Vt. 491 ; 
 Amherst V. Hollis, 9 N. H. 107; People v. Lohman, 2 Barb. Sup. Ct. Rep. 216 ; The 
 State V. Foster, 3 Fost. 348. Where he voluntarily testifies in chief on a particu- 
 lar subject, he may be cross-examined on the subject, even though his answers 
 may criminate or disgrace him : Norfolk v. Gaylord, 28 Conn. 309 ; CommHh v. 
 Price, 10 Gray 472. If he would avail himself of the right to refuse to answer on 
 the ground that the answer would criminate him, he must make the objection 
 before answering anything upon that subject : Comm'th v. Hoice, 13 Gray 26. The 
 matter need not be directly criminal, if it has a tendency to subject him or will 
 form a link in the evidence, the witness is entitled to object and he and not the 
 court is the judge of that : State v. Edwards, 2 Nott & M'Cord 13 ; People v. 
 Mather, 4 Wend. 229; Poole v. Perritt, 1 Speers 128 ; Chamberlain v. Wilson, 12 
 Vt. 491 ; The People v. Rector, 19 Wend. 569 ; Robinson v. Neal, 5 Monr. 212 ; Lister 
 V. Boker, 6 Black 439 ; The People v. Bodine, 1 Denio 28 1 ; Henry v. Salina Bank, 
 1 Comst. 83. But see Richman v. The State, 2 Greene 532 ; Floyd v. Tlie Slate, 
 7 Tex. 215. He cannot be compelled to answer as to any one act, the constant 
 repetition of which would amount to a statute offence : French v. Venneman, 14 
 Ind. 282. When the answer to a question in the direct examination would not 
 criminate, but the questions which might be rightfully put, on cross-examina- 
 tion, to test the truth of such answer, might form a link in a chain of evidence 
 that would, it was held, that he might refuse to answer : Printz v. Cheency, 1 1 
 Iowa 469. Although he is his own judge as to whether his answer would 
 criminate himself, he is nevertheless liable to an action by the party for a re- 
 fusal to testify, if his refusal be wilful and his excuse false : Warner v. Lucas, 
 10 Ohio 336. One who declines to answer on the ground that the answer sought 
 may tend to criminate liini, must state under oath that he believes that would 
 bo the tendency of the answer ; and after that answer, it is for the Court to ■ 
 decide whetlnn' tiio question will have tiiat tendency : Kirschner v. State, 9 Wise. 
 lii); Slate V. Dujj'y, 15 Iowa 425. A witness may be asked as to his testimony 
 in a former trial : McCabe v. Tirayton, 38 N. Y. 196. Though the case may be
 
 SELF-CRIMINATION — STATE SECRETS. 41 
 
 the community. Thus, in a state prosecution, a witness cannot be 
 called upon to disclose the names of those to whom he has given 
 information of practices against the State, whether such persons be 
 magistrates, or concerned in the administration of government, or be 
 merely the channel through which information is communicated to 
 government.^ So a witness was not allowed to answer the question, 
 whether he had delivered a short-hand note to an under secretary of 
 state ;' and so it was held, that an officer from the Tower of London 
 could not be examined as to the accuracy of a plan of the Tower 
 which was produced.™ Upon the same ground, *an official ^ 
 communication between the governor of a colony and the *- -' 
 law officers there, relating to the state of the colony, cannot be dis- 
 closed." So it seems that the orders given by the governor of a 
 foreign colony to a military officer acting under his command, ought 
 not to be produced." The same objection applies to letters written 
 
 " R. V. Wafson, 2 Starkie's C. (3E. C. L. R.) 135 ; and a note from Ilardi/s 
 case, by Ahbott, J., ib. 136 ; and Lord Ellenborough's observations as to Sto7ie^s 
 case, ib. 137 ; 24 Howell's State Tr. 753. 
 
 ' 32 Howell's State Tr. 100 ; see also De Berenger^s case, Gurney's Rep. 344. 
 
 " R. V. Watson, 2 Starkie's C. (3 E. C. L. R.) 148. 
 
 " Wyatt V. Gore, Holt's C. (3 E. C. L. R.) 299. 
 
 " Cooke V. Maxwell, 2 Starkie's C. (3 E. C. L. R.) 185. Tne document was 
 there called for, in order to prove that the plaintiff's factory had been destroyed 
 
 otherwise when a question is put on cross-examination, in order generally to 
 degrade and disgrace the witness, yet when a question having such tendency 
 is part of an examination in chief, and its answer is essential to the case of the 
 party bond fide putting it, the Court will compel an answer, when it will not 
 expose the witness to a criminal prosecution : Keller's case, 1 Whart. Dig. 726. 
 When a witness called to establish a defence of usury declines to testify, on the 
 ground that his evidence may expose him to an indictment or subject him to a 
 penalty, and it appears that the statute of limitation has barred all prosecu- 
 tions, the Court is bound to pronounce against his claim to exemption : Close v. 
 Olney, 1 Denio 319 ; Banlc of Salina v. Henry. 2 Denio 155, 3 Denio 593, 
 1 Comst. 83; Weldon v. Burd, 12 HI. 374; Floyd v. The State, 7 Tex. 215. 
 There is no legitimate inference of guilt from the refusal to answer, upon which 
 the jury can act : Carno v. Litchfield, 2 Mich. 340 ; Ncircomh v. State, 37 Miss. 383. 
 A liability, however, to a civil action or pecuniary loss will not privilege ; 
 Bull V. Loveland, 10 Pick. 9 ; Hays v. Richardson, 1 Gill & Johns. 366; Tancey 
 V. Kemp, 4 Har. & Johns. 348 ; Naylor v. Semmes, 4 Gill & Johns. 273 ; Copj) 
 V. TJpham, 3 N. H. 159 ; Baird v. Cochran, 4 S. & R. 397 ; Commomvealth v. 
 Thurston, 7 J. J. Marsh. 62 ; Alexander v. Knox, 7 Ala. 503 ; Judge of Probate 
 v. Green, 1 How. (Miss.) 146 ; Zollikofer v. Tttrney, 6 Yerg. 297 ; Loumey v. 
 Ferham, 2 Appl. 235; Conover v. Bell, 6 Monr. 157; Stevens v. Whitcomh, 16 
 Vt. 121 ; Matter of Kip, 1 Paige 601 ; Stewart v. Turner, 3 Edw. Ch. 458 ; Nass 
 V. Van Swearingen, 7 S. & R. 192 ; Ralph v. Brown, 3 W, &. S. 400.
 
 42 EXCLUDING PRINCIPLES. 
 
 by a secretary of state to a person acting under his authority ;'' and, 
 as it seems, to minutes taken before the privy council.** 
 
 The principle does not exclude a communication which, although 
 made to an official person, is not made in the discharge of any public 
 duty/^ 
 
 in consequence of orders from the defendant ; and it was held that althouj^h on 
 principles of public convenience the document could not be read, the effect was 
 the same as if the document had not existed, and that the witness might be 
 asked whether AA'hat had been done bad not been done by order of the defendant. 
 P 2 Starkie's C. (3 E C. L. R.) 185. / 
 
 '^ 6 St. Tr. 281, Layer's case. Where the commander-in-chief directed the 
 defendant, a major-general, with six other officers, to inquire into the conduct 
 of a plaintiff, and to report the opinion of the officers, and the plaintiff brought 
 an action for an alleged libel contained in that report, and the secretary of the 
 commander-in-chief attended with the minutes of the report, the Court refused 
 to allow it to be read. Home v. Bentinck, 2 B. & B. (6 E. C. L. R.) 130. So 
 official communications between an agent of government and a secretary of 
 state : Anderson v. Sir W. Hamilton, 2 B. & B. (6 E. C. L. R.) 156 ; and be- 
 tween the East India Company and the Board of Control : Smith v. East India 
 Company, 1 Phill. 50, are also privileged. For further observations on this 
 subject, see tit. Witness — Confidential Communication. 
 
 "■ Blake v. PiJford, I M. & Rob. 198 ; which was the case of a letter written 
 by a private person to the secretary of the postmaster-general, complaining of 
 the conduct of the guard of a mail. 
 
 1 An officer, by whom a person was apprehended, is not bound to disclose the 
 name of a person from whom he received the confidential information which 
 led to the prisoner's detection : United States v. Moses, 4 Wash. C. C. Rep. 726. 
 But he is bound to answer whether A. B. (the person in whose house the de- 
 fendant was apprehended on a charge of forgery, and where he was discovered 
 at a table with bank notes) had not told him that if he v.'ould come to his house 
 on a certain day, he would have the prisoner there •, for the defendant might 
 repel the presumption of guilt against him by showing that he was at the house 
 in consequence of the insidious invitation of the owner of it: Ibid.; S. P., 
 United States v. Ci-aig, 4 Wash. C. C. Rep. 729. The governor, to whom a depo- 
 sition has been addressed, preferring accusations against a person in office, 
 must exercise his own judgment with respect to the propriety of producing the 
 writing; a subpoena duces tecum will not be issued against him for it: Gray v. 
 Pentland, 2 S. & R. 23. G. 
 
 It is intimated by the Court, in the case of the U. S. v. Burr, that the Presi- 
 dent of the United States is not obliged to disclose communications made to him 
 in his official capacity, if the public good requires that they should be sup- 
 pressed : 1 Rob(!rtson's Rcj). of Burr's trial, 18(), 187. So in Marbury v. Madi- 
 son, 1 Cranch 144, it was held that a former secretary of state was not obliged 
 to disclose facts wiiicli had been communicated to him in confidence, while in 
 office. M. 
 
 This privilege lias been extended to a private prosecutor, not in office: Thi 
 Stale v. Soper, 4 Shcp. 2y;>.
 
 MEDIATEEVIDENCE. 43 
 
 *CHAPTER III. [*43] 
 
 MEDIATE AND SECONDARY EVIDENCE. 
 
 Next, as to the admissibility of evidence derived not immediately 
 from those who have, or are supposed to have, actual knowledge 
 of the fact, but through the testimony of one or more other wit- 
 nesses. 
 
 Such testimony is in general of so inferior a nature as to be 
 admissible only in cases of urgency, on the failure of better evidence, 
 and under the sanction of particular circumstances, which warrant 
 its admissibility, but in some instances is admissible without any 
 proof of the failure of better evidence. Thus general reputation is 
 in many instances receivable, although it may rest on no other foun- 
 dation than what the witnesses may have heard from others.* 
 
 General reputation is the general result or conclusion formed by 
 society as to any public fact or usage, by the aid of the united 
 knowledge and experience of its individual members : such a general 
 concurrence and coincidence of opinion on facts known to many, 
 affords a reasonable degree of presumption that their conclusion is 
 correct ;'' and therefore in particular cases, where the fact is of a pub- 
 lic nature, general reputation is admissible evidence to prove it. But 
 as it would not be necessary, and otherwise would not be practicable, 
 to examine the whole body of society as to the prevalence of general 
 reputation on any particular fact, it is suflBcient to call individual 
 witnesses, a portion of society, Avho can, under the sanction of an 
 oath, and subject to cross-examination, pledge their personal know- 
 ledge that such reputation exists. 
 
 *It is observable that, in one respect, such evidence can 
 
 . , r*441 
 
 scarcely be considered as forming an exception to the general ^ J 
 
 rule which requires the sanction of an oath and the opportunity to 
 cross-examine ; for tiie witnesses are called to prove what they actu- 
 ally know, viz., that such a reputation exists : they are sworn and 
 subject to cross-examination, and the very nature of such evidence 
 excludes any more solemn sanction. 
 
 The particular subjects to which such evidence is applicable re- 
 quire further consideration. 
 
 It is to observed that many facts, from their very nature, either 
 
 * See tit. Custom — Marriage — Pedigree — Prescripion. 
 
 '' See Du Bost v. Beresford, 2 Camp. 512; per Gibbs, C. J., Gurr v. Eutfvn, 
 Holt, Ca. (3 E. C. L. R.) 327; Oliver v. Bartlett, 1 B. & B. (5 E. C. L. R.) 26'J.
 
 44 MEDIATEEVIDENCE. 
 
 absolutely or usually exclude direct evidence to prove them, being 
 such as are in ordinary cases imperceptible by ihe senses, and there- 
 fore incapable of the usual means of proof. Among these are ques- 
 tions of pedigree or relationship, character, prescription, custom, 
 boundary, and the like. Such facts, some from their nature, and 
 others from their antiquity, do not admit of the ordinary and direct 
 means of proof by living witnesses; and, consequently, resort must 
 be had to the best means of proof which the nature of the cases 
 affords. Now the knowledge of facts of this description consists 
 either in the knowledge and recollection of that part of society which 
 has had the means of observing them, or in the traditionary declara- 
 tions of those who were likely to have possessed a knowledge on the 
 subject, derived either from their own observation, or the information 
 of others ; or, lastly, in questions of skill and judgment, the know- 
 ledge of the relation must be derived from those who are possessed of 
 the proper qualifications for forming a conclusion on the subject. The 
 character of a particular individual in society is formed by society 
 from their experience and observation of the conduct of the indi- 
 vidual ; and here reputation is not so much a circumstance from 
 which the character of the individual is to be presumed, as the very 
 fact itself, proved by the direct evidence of witnesses who constitute 
 part of that society. The knowledge of the existence of a particular 
 r*A.r-\ *public custom does not reside peculiarly in the breast of any 
 one individual whatsoever, but in the opinions and conclusions 
 which society, or some indefinite part of it, have collected from actual 
 observation and experience. 
 
 In the case of pedigree, the nearest relation, even that of parent 
 and child, can seldom be proved, after the death of the parents, by 
 direct evidence ; and no knowledge upon the subject exists except 
 that which is inferred from circumstances, or derived from the 
 hearsay testimony of those who, from their intimacy with the family, 
 possessed peculiar means of knowledge. The circumstances that the 
 parents cohabited as husband and wife, acknowledged and addressed 
 each other in society as such ; that they recognized and educated chil- 
 dren as their own, and introduced them to the world on a variety of 
 occasions as their legitimate offspring ; that a pedigree was hung up in 
 the family mansion, stating the different degrees of relationj^hip of the 
 members of the family; that similar entries were made in the family 
 bible; that a monument or tombstone was exhibited to the public, 
 announcing a re-lation between the deceased and the surviving, or 
 deceased and late, njcmbei's of a family ; all such circumstances are
 
 REPUTATIOX. 45 
 
 either strictly facts, or are solemn and deliberate declarations accom- 
 panying facts, and partaking of the nature of facts, which, in the 
 absence of all suspicion of fraud, afford the strongest presumptions 
 that the parties really did stand in the relative situation of husband 
 and wife, parents and children, or other degree of kindred ; for it is 
 improbable that such circumstances should have been acted with a 
 view to deceive, particularly in a manner so open and public as to 
 render the fraud liable to immediate detection. From such circum- 
 stances the belief is formed, by those who are acquainted with the 
 family, and a reputation obtains in society that they are so related ; 
 for reputation seems to be no more than hearsay, derived from those 
 who had the means of knowing the fact. Hence it is that the repu- 
 tation may exist when those who were best acquainted with *the 
 fact are dead ; and that such reputation and even traditionary L J 
 declarations becomes the best, if not the only, means of proof; and 
 when they are derived from those who are most likely to know the 
 truth, and who lay under no bias, or influence to misrepresent the 
 fact, they afford a fair and reasonable presumption of the truth of the 
 fact.i 
 
 ^ Pedigree and relationship, marriage and death, may be proved by general 
 reputation: Johnson x. Hotcard, 1 liar. & McHen. 281 ; Pancoast v. Addison^ 1 
 Har. & Johns. 350; Morgan v. Puniell, 4 Hawk? 95 ; Ewing v. Savari/, 3 Bibb 
 235 ; Eivell v. The State, 6 Yerg. 364 ; Flowers v. Haralson, Ibid. 494 ; Stegall v. 
 Stegall, 2 Brock. 256 ; Morton v. Barrett, 19 Me. 109; CojJes v. Pierce, 7 Gill 
 247 ; Prince v. Stewart, 7 Tex. 175 ; Watson v. Brewster, 1 Barr 381 ; Crauford 
 V. Blackburn, 17 Md. 49 ; Carries v. Crandall, 10 Iowa 377 ; Webb v. Richardson, 
 42 Yt. 465 ; Eaton v. Tallmadge, 24 Wise. 217. Hearsay evidence of such facts 
 is therefore admissible : Jackson v. Boneham, 15 Johns. 226 ; Strickland v. Poole, 
 1 Dall. 14-, Jackson v. Cooley, 8 Johns. 128; Elliott v. Piersoll, 1 Pet. 328; 
 Waldron v. Tuttle, 4 N. H. 371 ; Scott v. Ratcliffe, 5 Pet. 81 ; Carter v. Buchanan, 
 9 Ga. 539 ; Wilson v. Brownlee, 24 Ark. 586. Recitals in a deed more than thirty 
 years old are evidence of pedigree: Bowser v. Cravener, 6 P. F. Smith 132. But 
 hearsay evidence, of the place of a man's birth or death, is inadmissible: Inde- 
 pendence v. Pompton, 4 Ilals. 209 ; Wilmington v. Burlington, 4 Pick. 174 ; 
 Bi-ooks v. Clay, 3 A. K. Marsh. 545. That two lived together in a state of con- 
 cubinage can never be proved by general reputation : Carrie v. Cumming, 26 
 Ga. 690. The hearsay evidence, admissible in cases of pedigree, is limited to 
 those connected with the family who are supposed to have known the relation- 
 ships existing, and such hearsay declarations must have been made before suit 
 commenced: Stein v. Bowman, 13 Pet. 209 ; Jackson v. Browner, IS Johns. 37 ; 
 Waldrow v. Tuttle, 4 N. H. 371 ; Chapman v. Chapman, 2 Coxe 347 : Saunders 
 V. Fuller, 4 Humph. 516 ; Greentoood v. Spillor, 2 Scam. 502 ; Matter of Hall, 1 
 Wall. Jr. 85 ; Copes v. Pearce, 7 Gill. 247 ; Boudereau v. Montgomery, 4 Wash. 
 C. C. Rep. 186 ; Dussel v. Roe, 1 Wall. Jr. 39. To let in the declarations of 
 4
 
 46 MEDIATE EVIDENCE. 
 
 Again : upon questions of fact, to which antiquity is essential, as 
 of prescription, custom and boundary, (and also of pedigree, where 
 the relationship is to be traced through a remote ancestor,) the evi- 
 dence of living witnesses is of little avail, except as to the observance 
 of the right, privilege or obligation, in modern times; for any know- 
 ledge concerning such rights, drawn from times more remote, recourse 
 must be had to reputation and tradition ; such evidence being sup- 
 ported by proof of the enjoyment of such rights and privileges, and 
 of acquiescence in them in more recent times.' 
 
 On these grounds, therefore, general reputation is admissible evi- 
 dence, as affording presumptions upon which juries are to exercise 
 their discretion in cases of this nature. Such instances have, it 
 seems, been regarded as anomalous, and as forming exceptioits to the 
 general rule which has already been noticed, viz , that mere naked 
 declarations are too vague, uncertain and fallacious, to afford sufficient 
 presumptions for the consideration of a jury.* Such evidence is at 
 all events warranted by the necessity of the case. The particular 
 objection which excludes mere hearsay in general does not apply to 
 those cases which are of a public nature, which may be presumed to 
 be matter of public notoriety, as in the instance of public prescrip- 
 tions, customs and character, and where reliance is placed not on the 
 credit due to the assertion of a single individual, but is sanctioned by 
 the concurrent opinion and assent of indefinite numbers ; in such cases 
 
 « Per Lord Ellenborough, C. J., Weels v. Sparke, 1 M. & S. (28 E. C. L. R.) 
 686. 
 
 third persons in case of pedigree, it must be shown that they are dead : White v. 
 Strother, 11 Ala. 720 ; Covert v. Hertzog, 4 IJarr 145 ; Fuller v. Nutz, 5 S. & R. 
 251. See post, p. 188, note. 
 
 * lioundiiries may be proved by reputation, and it is not confined in the United 
 States to boundaries Vjetween manors and parishes, but extends to private estates, 
 and the lines of old surveys : Smith v. Howell, 2 Litt. 159 ; Bufoll v. Stocking, 
 8 Conn. 236 ; Boardman v. Reed, 6 Pet. 328 ; Wooster v. Butler, 13 Conn. 309 ; 
 Nieman v. Ward, 1 W. &. S. 68 ; Ellicott v. Pearl, 1 McLean 206 ; Caiifman v. 
 Cedar Spring Congregation, 6 Binn. 59 ; Wolf v. Wyeth. 11 S. & R. 149 ; Hamil- 
 ton V. Minor, 2 Ibid. 70; McCloud v. Mynalt, 2 Cald. 163; Sullivan Granite Co. 
 V. Gordon, 57 Me. 520. But the declarations of those who could themselves be 
 had as witnesses are not admissible : Lamar v. Minter, 13 Ala. 31 ; Buchanan v. 
 Moore, IDS. & R. 275. Possessions of ancient date, of which there can be no 
 living witnesses, and of which no written evidence can be presumed to exist, may 
 also be thus eKtal)lishcd : Casy v. Inloes, 1 Gill 430. Reputation is not admitted 
 upon (|ueKtions of freedom : Walls v. Helmsley, 4 liar. & Johns. 243 ; Gregory v. 
 Buugli, 4 Rand. Gil. Contra, Mahoncy v. Ashlon, 4 Har. & McIIeu. 63, 295; 
 Chancellor v. Milly, 9 Dana 23. Se^ post, p. 186, note 1.
 
 REPUTATION. 46 
 
 a presumption exists that the truth of the fact is known and faithfully 
 communicated. 
 
 Hence, therefore, common reputation is evidence to *prove, 
 1st, a man's character in society f 2(lly, reputation, and (as ^ J 
 ■will afterwards be seen) traditionary declarations are evidence to prove 
 a pedigree, including the state of a family as far as regards the rela- 
 tionship of its different members, their births, marriages and deaths ; 
 3dly, reputation and traditionary declarations are evidence to prove 
 certain prescriptive or customary rights and obligations, and matters 
 of public notoriety. But inasmuch as the reception of such evidence 
 is founded upon the supposition that the persons from whom it is 
 derived possessed the means of knowledge ; and since such evidence 
 is in its own nature very weak, unless it be supported by other cir- 
 cumstances,® the following sanctions appear to be necessary to war- 
 rant a presumption from such evidence. 
 
 First, in order to warrant such a presumption, the fact to which the 
 reputation or tradition applies, must in general be of a, public nature ; 
 for otherwise it cannot be presumed that the persons from whom the 
 knowledge is derived possessed the means of knowledge, or if they did 
 possess the means, that their attention and observation were attracted 
 to it : and therefore such evidence is admissible in cases of character, 
 public prescriptions, and customs relating to manors,^ and parishes, 
 and of rights of common, public boundaries and highways.^ Such 
 evidence is also received with respect to the existence of a modus, "" or a 
 right to free warren,' because, although they are in strictness private 
 rights, yet they affect a great number of occupiers within a district.'' 
 
 So where the defendant in trespass pleaded a prescriptive right of 
 common over the locus in quo, at all times, for his cattle levant and 
 couchant, and the plaintiff, in his replication, prescribed in right of 
 his messuage to use the *locus in quo for tillage with corn, r^j^o-i 
 and until the taking in of the corn to hold and enjoy the same 
 in every year, and traversed the defendant's prescription, on which 
 issue was joined, it was held' that many persons besides the defendant 
 
 "* See tit. Character. 
 
 « Per Lord Ellenborough, 1 M. & S. (28 E. C. L. R.) 686. 
 
 ^ Barnes v. Mawson, 1 M. & S. (28 E. C. L. R.) 77. 
 
 s 1 M. & S. (28 E. C. L. R.) 686 ; 6 M. & W. 234 ; see tit. Custom— Prescrip- 
 tion, &c. 
 
 " 2 Ves. 512 ; Gwill. 854. * 13 M. & W. 332. 
 
 ^ Per Dampier, J., 1 M. & S. (28 E. C. L. R.) 691 ; see tit. Tithes. 
 
 ' Weeks v. Sparke, 1 M. & S. (28 E. C. L. R.) 679 ; Pritchard v. Powell, 10 Q,. 
 B. (59 E. C. L. R.) 589.
 
 48 MEDIATE EVIDENCE. 
 
 liaving a right of common ever the hens in quo, evidence of reputa- 
 tion, as to the right claimed by the plaintiff, was admissible, a 
 foundation having been first laid, by evidence of the enjoyment of 
 such right. But it seems to be now settled, although the question 
 was long sub judice, that general evidence of reputation is not admis- 
 sible in the case of a private prescription or other claim. In the 
 case of Morewood v. Wood,^ the question was whether general 
 evidence of reputation as to a prescriptive right of digging stones on 
 the lord's waste, annexed to a particular estate, was admissible ; and 
 the Judges were divided upon it. In Outram v. Moretvood,^ Lord 
 Kenyon said, " that although a general right might be proved by 
 traditionary evidence, a particular fact could not." There the ques- 
 tion was, whether Cow Close had been part of the estate of Sir J. 
 Zouch, out of which certain rents and coals had been reserved ; and 
 the Court held that the fact could not be proved by entries made by 
 a third person deceased, in his books of receipts of rents from his 
 tenant, such entries being considered as no more than a declaration 
 of the fact by such third person ; which was different from entries by 
 a steward, who thereby charged himself with the receipt of money. 
 In Doe V. Thomas,° where in an action of ejectment the lessor of the 
 plaintiff claimed as tenant in tail under the will of A. who gave £. 
 his son an estate for life, and the defendant claimed as the devisee of 
 B., the question was, whether the land in dispute was part of the 
 entailed estate, or had been purchased by i?. ; it was held that 
 
 evidence of ^reputation that the land had been purchased of 
 
 r*491 • ■ • 
 
 *- -^ J. S. by A. was inadmissible.^ And although traditionary 
 
 reputation is evidence of boundary between two parishes and manors,'' 
 
 it is not evidence of boundary between two private estates."^ ^ Upon 
 
 the principle that it is a matter of general and public notoriety, a 
 
 " 32 Geo. III., B. R. 14 East 327, in note. 
 
 ° 5 T. E. 123. 14 East 323. 
 
 P In The Bishop of Meath v. Lord Belfield, B. N. P. 295, it was held that evi- 
 dence of reputation was admissible, in quare impedit, to prove that one Knight 
 had been in by the presentation of one from whom the defendant claimed ; but 
 in Re Eriswcll, 3 T. R. 723, Lord Kenyon denied that this case was law. 
 
 1 Nicholls v. Parker, Ex. Summer Ass. 1805, cor. Le Blanc, J., Taunton, 1795 ; 
 B. V. Parish of Hammersmith, Sitt. after Hil. 1776 ; Down v. Hale, cor. Law- 
 rence, see 14 East 331 ; Peake, Ev. App. 33 ; Ireland v. Powell, Salop Sum, Ass. 
 Peake, Ev. App. 33 ; Brisco v. Lomax, 8 Ad. & E. (35 E. C. L. R.) 198. 
 
 ■■ Clothier v. Chapman, 14 East 331, in the note. 
 
 ' That this is not the received law in the United States, see the cases cited in 
 the note 2, {>. 40, ante.
 
 REPUTATION. 49 
 
 particular historical fact may, as it seems, be proved by reputation of 
 the fact, and (as falling within the scope of such evidence) by a gen- 
 erally received historical account of it.^ ^ 
 
 2dly. Neither reputation nor traditionary declarations are admis- 
 sible as to a particular fact.' Evidence of reputation upon general 
 points is receivable, because all mankind being interested in them, it 
 is natural to suppose that they may be conversant with the subjects, 
 and they should discourse together about them." all having the same 
 means of information ; but this does not apply to particular facts, 
 which may not be notorious, which may be misrepresented or misun- 
 derstood, and which may have been connected with other facts by 
 which their effect would be limited and explained. Such evidence 
 would obviously be open to all the uncertainty, and liable to all the 
 objections incident to mere hearsay evidence, and is therefore of too 
 slight a nature to support any presumption. And, therefore, upon a 
 question of modus, evidence of the declaration of an old person, since 
 deceased, that so *much per acre had always been paid in lieu 
 of tithes, would be good evidence as to reputation ; but a de- '- -• 
 claration by such a person that he paid so much in lieu of tithes would 
 
 ^ B. N. P. 248; 1 Salk. 282 ; 1 Vent. 151 ; Skin. 14, 623 ; and see Tkonas v. 
 JenJdns, 6 Ad. & E. (33 E. C. L. R.) 525. 
 
 * Per Lord Kenyon, Outram v. Morewood, 5 T. R. 123. 
 " Fer Lord Kenyon, see Morewood v. Wood, 14 East 329. 
 
 ^ Historical facts of general and public, notoriety may be proved by reputation, 
 and that reputation may be established by historical works of known character 
 and accuracy. But evidence of this sort is confined in a great measure to ancient 
 facts which do not pre-suppose better evidence in existence ; and when from the 
 nature of the transaction or the remoteness of the period, or the public and gen- 
 eral reception of the facts, a just foundation is laid for general confidence. The 
 work of a living author who is within the reach of the process of the court can 
 hardly be deemed of this nature. He may be called as a witness ; he may be 
 examined as to the sources and accuracy of his information ; and especially if 
 the facts which he relates are of a recent date, and may be fairly presumed to 
 be within the knowledge of many living persons, from whom he has derived his 
 materials, there would seem to be cogent reasons to say that his book was not, 
 under such circumstances, the best evidence within the reach of the parties : 
 Morris v. Harmer^s Heirs, 7 Pet. 554. Events, connected with and forming 
 part of the public history of the country, courts will judicially notice : Humphrey 
 v. Burnside, 4 Bush 215. They will take judicial notice of the existence of the 
 civil war of 1861-5, and of the facts of public history connected with its origin 
 and progress : Cuyler v. Ferrill, 1 Abb. U. S. 160. Volumes — as the American 
 State Papers — published under the authority of Congress, are competent evi- 
 dence : Doe V. Boe, 13 Fla. 602.
 
 50 MEDIATE EVIDENCE. 
 
 not be admissible, since it is a particular fact/ So in those cases 
 where evidence of perambulations is admitted, it is in the nature of 
 hearsay evidence, not of particular acts done, as that such a turf was 
 dug, or such a post put down in a particular spot ; but it is evidence 
 of the ambit of any particular place or parish, and of what the per- 
 sons accompanying the survey have been heard to say and do on such 
 occasion/ 
 
 3dly. If the reputation or tradition relate to the exercise of a right 
 of privilege, it should be supported by proof of acts of enjoyment of 
 such right or privilege within the period of living memory ;^ and when 
 that foundation has been laid, then, inasmuch as there cannot be any 
 witnesses to speak to acts of enjoyment beyond the time of living 
 memory, evidence is to be admitted from old persons conversant with 
 the neighborhood where the right is claimed, of what they have heard 
 other old persons, who were in a situation to know what the rights 
 were, say concerning them/ 
 
 Another class of evidence, which is admissible, though the usual 
 tests are inapplicable, consists of declarations made by one of the 
 parties to a suit, in the nature of a confession or admission contrary 
 to his own interest. Whatever a party voluntarily admits to be true, 
 though the admission be contrary to his interest, may reasonably be 
 taken for the truth. The same rule it will be seen applies to admis- 
 sion by those who are so identified in situation and interest with a 
 party that their declarations may be considered to have been made 
 bv himself.'' *As to such evidence, the ordinary tests of 
 L -■ truth are properly dispensed with ; they are inapplicable : an 
 oath is administered to a witness in order to impose additional obliga- 
 tion on his conscience, and so to add weight to his testimony ; and he 
 is cross-examined to ascertain his means of knowledge, as well as his 
 intention to speak the truth. But where a man voluntarily admits a 
 debt or confesses a crime, there is little occasion for confirmation ; 
 the ordinary motives of human conduct are sufficient warrants for 
 belief.^ 
 
 ^ Ilarivood v. Sims, 1 Wight 112. 
 
 y Per Lord Ellenborough, I M. & S. (28 E. C. L. K.) 687. 
 ' See the Qbservations of the Judges in Weeks v. Parke, 1 M. & S. (28 E. C. 
 L. R.) 679 ; and of Grose, J., 5 T. R. 32. 
 
 =" 1 M. & S. (28 E. C. L. R.) 679 ; 14 East 330 ; 12 East 65. 
 '' See Vol. II. tit. Admissions. 
 
 ' In general the declarations of a party to tlie record in interest are admissi- 
 ble, and in the ah^cnce of fraud, if the parties liavc a joint interest in the matter
 
 REPUTATION. 51 
 
 There is also another species of hearsay evidence, which in some 
 instances may be referred to this class. Where a declaration accom- 
 
 in suit, an admission made by one is in general, evidence against all : Black v. 
 Lamb, 1 Beas. 108. He is not bound by or held to admit as true every state- 
 ment made by his witness during the trial, because he does not deny or contra- 
 dict them at the time: Wilkins v. Stedger, 22 Cal. 231. He may show that 
 admissions made l)y him were untrue or made under a mistake, unless another 
 has acted on them so as to estop him : Ra;/ v. Bell, 24 111. 444. The silence of 
 a party, to whom a note purporting to be signed by him was shown, with a re- 
 quest to pay it, is competent evidence that his signature is genuine, or if not 
 genuine of his assent to be bound by it : Corson v. Paul, 41 N. H. 24 ; Greenfield 
 Bank v. Craft, 2 Allen 269. So a declaration made in the presence of a party 
 and not denied : Gihneij v. Monhaij, 34 N. Y. 301 ; Lanergaji v. People, 30 N. Y. 39. 
 Declarations by a minister in the pulpit are not evidence in his own favor 
 against the congregation: Johnson \. Trinity Church, 11 Allen 123. When a 
 party refers to a third person for information relating to the issue, it makes the 
 declaration of such thirJ person evidence : Allen v. Killinger, 8 Wall. 480, The 
 admissions of a married woman are competent evidence in an action by her 
 trustee for her use : M'Lemon v. Nuckells, 1 Ala. Sel. Cas. 591. 
 
 As to admissions of partners, see Fail v. M' Arthur, 31 Ala. 26 ; Smitha v. 
 Cureton, Ibid. 652 ; Rich v. Flanders, 39 N. H. 304 ; Hunter v. Hubbard, 26 
 Tex. 537 ; Rotan v. Nicholls, 22 Ark. 214 ; Berrg v. Lathrop, 24 Ibid. 12. 
 
 As to admissions by partner after dissolution: Carry v. Kurts, 33 Miss. 24; 
 American Iron Mountain Co. v. Evans, 27 Mo. 552 ; Miller v. Niemerick, 19 HI. 
 172 ; Rich V. Flanders, 39 N. II. 304; Pennoyer v. David, 8 Mich. 407 ; Haggv. 
 Orgill, 10 Cas. 344 ; Nalle v. Gates, 20 Tex. 315 ; Flowers v. Helm, 29 Mo. 324 ; 
 Winsloiv V. Newlin, 45 111. 145. 
 
 The whole of the conversation in which an admission is made may be given 
 in evidence: Hudson v. Howlett, S2 Ala. 478 ; Thrall v. Smiley, 9 Cal. 529; 
 State v. Morton, 28 Mo. 530 ; Perego v. Purdy, 1 Hilt. 269 ; Bearss v. Copley, 10 
 N. Y. 93; Doonan v. Mitchell, 26 Ga. 472 ; Scruggs v. Bibb, 33 Ala. 481 ; Veiths 
 V. Hagge, 8 Clarke 163 ; People v. Murphy, 39 Cal. 52 ; Jones v. Fort, 36 Ala. 
 449 ; Kammell v. Bassett, 24 Ark. 499 ; Hamsher v. Kliyie, 7 P. F. Smith 397. 
 That a witness did not hear the whole conversation is no reason for excluding 
 what he did hear : Mays v. Dearer, 1 Clarke 216 ; Williams v. Keyser, 11 Fla. 
 234. In an action on the case for obstructing a private way, it is not error to 
 reject evidence of an opinion expressed by one of the parties as to the extent of 
 his rights where no one was injured by it : Steffy v. Carpenter, 1 Wright 41. It 
 is not necessary that admissions to be received in evidence should be admissions 
 of facts within the knowledge of the party making them : Chapman v. Chicago 
 R. R. Co., 26 Wis. 295. 
 
 To render the declaration of an agent admissible against his principal, they 
 must be made in regard to a transaction then depending, and must be part of 
 the res gestce : Hayioard Rubber Company v. Duncklee, 30 Vt. 29 ; Raiford v. 
 French, 11 Rich. (Law) 367 ; Mason v. Croom, 24 Ga. 211 ; Winter v. Burt, 31 
 Ala. 33; Robinson v. Fitchburg .and Worcester Railroad Company, 7 Gray 92; 
 Vail V. Judson, 4 E. D. Smith 165 ; Gilson v. Wood, 20 111. 37 ; Gerke y. Cali- 
 fornia Steam Navigation Company, 9 Cal. 251 ; Dick v. Lindsay, 2 Grant 431 ;
 
 51 MEDIATE EVIDENCE. 
 
 panics an act, it is frequently admissible as part of the act itself. 
 Such declarations, it will bo seen, are more frequently used as col- 
 lateral or indirect evidence from which some other fact is to be in- 
 ferred, than as direct evidence of a fact ; and as such will be 
 afterwards considered. Suffice it to observe, for the present, that 
 declarations are usually admissible where the fact which they accom- 
 pany is material and admissible," and where the nature and quality 
 of the act are also material ; for in such instances a declaration 
 accompanying the act may .either be regarded as part of the act 
 itself, or as the most proximate and satisfactory evidence for explain- 
 ino; and illustrating; the fact.^ 
 
 ■= 7 Ad. & E. (34 E. C. L. R.) 361 ; E. v. Bliss, Ibid. 550. 
 
 Garfield v. KnigMs Ferry Company, 14 Cal. 35 ; Milwaulcee Railroad Company 
 V. Finney, K) Wis. 388 ; Robeson v. Schuylkill Navigation Company, 3 Grant 
 186; Persse Paper Worls v. Willett, 1 Rob. 131 ; Low v. Conn. R. R. Co., 46 
 N. H. 284 ; Weeks v. Barron, -38 Vt. 420 ; Price v. JST. J. R. R. Co., 2 Vroom 
 229 ; Raislee v. Springer, 38 Ala. 703 ; Beardslee v. Steinmesck, 38 Mo. 168 ; 
 Walker v. Howell, 1 Cald. 238 ; Eudsfreth v. Allen, 26 Ind. 165 ; Converse v. 
 Blumrick, 14 Mich. 109 ; Burnside v. Grand Trunk R. R. Co., 47 N. H. 554 ; 
 Green v. North Buffalo Township, 6 P. F. Smith 110 ; Penna. R. R. Co. v. 
 Books, 7 Ibid. 339 ; Thomas v. Sternheimer, 29 Md. 268 ; Tuttle v. Turne)', 28 
 Tex. 759 ; Farmer v. Lewis, 1 Buck 66 ; Lowry v. Harris, 12 Minn. 255 ; Howe 
 3fachine Co. v. Snow, 32 Iowa 433 ; Hall v. Hall, 34 Ind. 314 ; Matteson v. New 
 York R. R. Co., 6^ Barb. 364 ; Michigan Central R. R. Co. v. Cougar, 55 111. 
 503 ; Osgood v. Bringoff, 32 Iowa 265 ; Happy v. Masher, -18 N. Y. 313. Before 
 the statements of an au[;ent can be j^iven in evidence the agency must first be 
 clearly established : Rosenstock v. Tormey, 32 Md. 169. They are admissible to 
 charge the principal only when they are part of the res gestce : Whiteside v. 
 Margarl, 51 111. 507 ; Smith v. Wallace, 25 AVis. 55. Letters of deceased agents 
 are not admissible to prove past occurrences : Alabama E. R. Co. v. Johnson, 42 
 Ala. 242 ; Buchanan v. Collins, 42 Ala. 419. The rule that the declarations of 
 an agent are not admissible unless part of the res gestce applies to the officers 
 and agents of municipal corporations : Blanchard v. Blackstone, 102 Mass. 343 ; 
 Cortland County v. Herkimer County, 44 N. Y. 22. 
 
 The declarations of an agent tending to show he had knowledge of a certain 
 fact are admissible to prove such knowledge and to discharge his principal : 
 MAuley v. Western Railroad Company, 33 Vt. 311. The declarations of indi- 
 viduals, who are directors of a bank, not forming part of an official act, are not 
 admissible to prove an antecedent fact against the bank : Pemigeivassett Bank v. 
 Rogers, 18 N. II. 255. 
 
 ' Tlie rules regulating the admissil)ility of declarations accompanying acts are 
 difficult, if not impos8il>le, to be defined ; the general principles on which they are 
 founded are well stated in the text. These declarations are not received as 
 proofs of facts — but as facts showing the motives for an act or the character of 
 it: filighl v. Ashley, 1 Pet. C. C. Rep. 22; Pool v. Bridges, 4 Pick. 378; Boyden 
 v. Moore, I 1 Ibid. '■'>()'> ; Tompkins v. Sallmarsh, 14 S. &, R. 275. "When an act
 
 REPUTATION. 51 
 
 Experience supplies a reasonable presumption that a declaration 
 made by a person in doing an act, as to bis intention and object, and 
 where that person labored under no temptation to deceive, was spon- 
 taneous, natural, and consistent with truth. The most usual example^ 
 adduced in illustration of this doctrine, is that of a declaration made 
 bj a trader, at the time of deserting his house or place of business, as 
 to his intention and object in so doing, in order to prove an act of 
 bankruptcy. Here it is observable that the fact of departure is ma- 
 terial : the question *is as to the nature and quality of the act, r*rr)-i 
 that is, as to the object and intention of the trader in doing 
 that act ; and to prove this, the declarations which he made at the 
 time of leaving his house or counting-house, are constantly admitted 
 in proof of his design, as being natural and spontaneous indications 
 of the truth, although his subsequent declaration, even upon oath, 
 would be absolutely rejected. 
 
 It is emphatically to be observed, that the rule admitting evidence 
 of a declaration accompanying an act, is not founded on any general 
 presumption that in every such case credit is to be given to the vera- 
 city of the declarant ; for if that Avere so, and acted on as a general 
 rule, the acts of strangers would be admissible for the purpose of 
 sanctioning the admission of such declaration. But, as will be seen, 
 the acts of strangers are excluded, for reasons as strong, if not 
 stronger, than those which exclude the mere declarations of strangers ; 
 and as the transactions of mere strangers, not in themselves material 
 to the subject of inquiry, are properly regarded as inadmissible, so 
 likewise must declarations be excluded which depend for their credit 
 on their connection with the acts of strangers. 
 
 Whether, therefore, declarations accompanying acts are to be 
 deemed of value from credit given to the declarant, or as being part 
 and parcel of the collateral circumstances from which the jury are to 
 draw their conclusion as to the nature and quality of the act itself, 
 it is essential that the act itself should be material and admissible. If, 
 
 * See below, tit. Witness ; Vol. II., tit. Bankrupt. 
 
 is done, to which it is necessary to ascribe a motive, it is always considered that 
 what is said at the time, from whence the motive may be collected, is part of 
 the res gestce.^'' Per Rogers, J., Gilchrist v. Ball, 8 Watts 358. Upon a question 
 of boundary, the declaration of a deceased person who pointed out a line of 
 marked trees, saying it was a known division line, was held to be admissible in 
 evidence, as part of the res gestce ; but any further declaration made by him at 
 the time of a fact material to the issue, was held to be inadmissible : Van Dusen 
 V. Turner, 12 Pick. 532.
 
 52 M E D I A T E E V I D E N C E. 
 
 for the sake of illustration, the question for what purpose a sum of 
 money was paid by A. to B., were material to the issue, what A. 
 said to B. on paying the money would be most important, it may be, 
 conclusive evidence. But if A. and B. were strangers to the cause, 
 and the fact of payment were not material to the issue, then, although 
 A. at the time of payment made a declaration as to the truth of a 
 fact material to the issue, as that he had lost a wager betted on that 
 fact, the declaration would neither be evidence in itself nor as ex- 
 ^^ planatory of the act of A., *which, as being the act of a 
 L -' stranger, was also inadmissible.®^ 
 
 * The principle of admitting declarations as accompanying acts was much con- 
 sidered in the case of Doe d. Tatham v. Wright^ 7 Ad. & E. (34 E. C. L. R.) 313 ; 
 
 5 Nev. & M. (30 E. C. L. R.) 132 ; 4 Ring. N. C. (33 E. C. L. R.) 489 ; 2 Nev. 
 
 6 P. 30.5. 
 
 ' Declarations, which form part of the res gestce., which explain and give charac- 
 ter to what was done at the time, are not liable to the objection that they are 
 hearsaj' : Kirhy v. The State, 7 Yerg. 259 : Evans v. Jones, 8 Yerg. 461 : Marr v. 
 Hill, 10 Mo. 320 ; Kinzer v. Mitchell, 8 Rarr 64 ; St. Clair v. Shale, 9 Rarr 
 252 ; Cashj v. Haviland, 13 Ala. 314 -, Elkins v. Hamilton, 20 Vt 627 ; Holhrook 
 V. Murray, 20 Vt. 525 ; Russell v. Frishie, 19 Conn. 205 ; Redding v. Spriiance, 
 4 Harring. 217; Rotdhac v. White, 9 Ired. 63; Biles y. Holmes, 11 Ired. 16; 
 Tomkies v. Reynolds, 17 Ala. 109 ; Beckwith v. Mollahan, 2 W. Va. 477 ; State 
 V. Dula, 1 Phill. (Law) 211 ; Rutland v. Hathorn, 36 Geo. 380 ; Monday v. State, 
 32 Ga. 672 ; Baker v. Kelly, 41 Miss. 696 ; Marcy v. Merchants'' Ins. Co., 19 
 La. Ann. 388; Webster v. Canman, 40 Mo. 156; Garber v. State, 4 Cald. 161 ; 
 Reggs v. State, 6 Cald. 517 ; Comm. v. Janes, 99 Mass. 438 ; Reed v. New York 
 Central R. R. Co., 56 Rarb. 493 ; Sears v. Hoyt, 37 Conn. 406 ; Southwestern R. 
 R. Co. V. Rowan, 43 Ga. 411 ; Parsons v. State, 43 Ga. 197 ; Head v. State, 44 
 Miss. 731 ; Collins v. Waters, 54 111. 485; Doivns v. Neiv York R. R. Co., 47 
 N. Y. 83 ; Union Savings Association v. Edivards, 47 Mo. 445 ; Rollins v. Strout, 
 6 Nev. 150; Flint v. Norwich Transportation Co., 7 Rlatchf. 536. When it is 
 competent to prove an act, it is also competent to prove as part of the res gestce 
 what the person performing the act said at the time in explanation : Braselton 
 V Turney, 7 Cald. 267. In proving a sale of goods, evidence is admissible of 
 declarations of the parties accompanying the acts and forming part of the res 
 gestce: Elliott v. Stoddard, 98 Mass. 145. The declarations of bystanders at a 
 public sale ai-e admissible in evidence in regard to it: Stewart v. Severance, 43 
 Mo. 322. Acts and declarations contemporaneous with an alleged gift to prove 
 delivery : Bragg v. Massis^ Adm., 38 Ala. 89. So also statements of officials 
 made during the prosecution of work for a municipal corporation to persons 
 engaged upon it: Maker v. Chicago, 38 111. 206. 
 
 When an account is made out by the creditor, and receipted by him, the pre- 
 MUiiiption iirisriM that it was paid by the debtor. If the creditor in the receipt 
 stutcH that he nsceived the money from a third person, it is evidence of that fact 
 againHt tlic delttor. So, also, if, at the time, he had verbally admitted or declared 
 Hudi to be the fact, it would be competent testimony against the debtor, as a part
 
 DECLARATION. 53 
 
 These classes of evidence are distinguishable from all others by 
 this characteristic difference, that such evidence may be resorted to 
 in the first instance as original evidence, whilst all other mediate 
 testimony is admissible only on a principle of necessity, as secondary 
 evidence, after the failure of evidence of a higher and more satisfac- 
 tory nature/ 
 
 ' There is this essential distinction between a declaration which is admissible 
 as accompanying an act, and one admissible merely as secondary evidence ; in 
 the former case, the admissibility results immediately from its connection with 
 a fact material to the cause, and already in evidence ; whilst to warrant the ad- 
 mission of secondary evidence, afouudation must first be laid by proof of extrinsic 
 circumstances, usually unconnected with the cause. 
 
 of the res gestce : Harrison v. Harrison, 9 Ala. 73. Where an act proved is 
 relevant and material, declarations accompanying the act, and strictly explana- 
 tory of it, are admissible as part of the res gestce: Tucker v. Peaslee, 36 N. H. 
 167; Barifield v. Parker, Ibid. 353; Hall v. Young, 37 Ibid. 134; Fail v. 
 M' Arthur, 31 Ala. 26 ; M'Lemore v. Pinkston, Ibid. 266 ; George v. Thomas, 16 
 Tex. 74; Meek v. Perry, 36 Miss. 190. Where it is material to show the animus 
 with which an act was done, both the prior and subsequent declarations of the 
 party doing the act, as well as those which accompany it, are admissible : Bar- 
 tram v. Stone, 31 Conn. 159. In a suit for damages for injury caused by the 
 overturning of a stage coach, the plaintiff's declarations at the time of the acci- 
 dent, are admissible : Frink v. Coe, 4 Greene 555. But the statements of a 
 railroad conductor made after the accident, are no part of the res gestce : Griffin 
 v. Montgomery Railroad Co., 26 Ga. 111. The rule that declarations of a party 
 at the time of doing an act, are admissible as part of the res gestce, does not 
 apply so as to admit as against third persons, declarations of a past fact, having 
 the effect of criminating the latter : People v. Simonds, 19 Gal. 275. 
 
 The declarations of a sick person as to his symptoms, are admissible: Feagin 
 v. Beasley, 23 Ga. 17 ; Wilkinson v. Moseley, 30 Ala. 562; Wacllow v. Perryman, 
 27 Mo. 279; Tilman v. Stringer, 26 Ga. 171 ; Looper v. Bell, 1 Head 373 ; Howe 
 v. Plainfield, 41 N. H. 135 ; State v. Howard, 32 Vt. 380 ; Perkins v. Concord 
 Railroad, 44 N. H. 223; Barber v. Mernan, 11 Allen 322; Mattison v. Neic 
 York R. R. Co., 35 N. Y. 487 ; Fondrew v. Dresfu, 39 Miss. 324 ; Hlinois R. R. 
 Co. V. Sutton, 42 111. 438 ; Gray v. McLaughlin, 26 Iowa 279. The declarations 
 of one who was killed by a railroad accident as to the manner in which such 
 accident occurred are admissible in an action against the railroad company by 
 the widow : Brownell v. Pacific R. R. Co., 49 Mo. 239 ; contra, Friedman v. 
 Railroad Co., 7 Phila. 203. Declarations of the accused made when first charged 
 with the crime are admissible in his favor : Comfort v. People, 54 111. 404 ; State 
 V. Patterson, 63 N. C. 520. A person accused of crime is not permitted to prove 
 his conduct and statements soon after the commission of the crime : Hall v. State, 
 40 Ala. 698 ; Young v. Power, 41 Miss. 197 ; Baker v. Kelly, 41 Miss. 696 ; 
 Morris v. Nashwood, 1 Buck 208 ; Tucker v. Hood, 2 Ibid. 85 ; Hyatt v. Adams, 
 16 Mich. 180. A baggage master is the proper person to inquire of in regard to 
 lost baggage, and his answer is part of the evidence of the loss. It is a part of 
 the res gestce: Curtis v. Avon R. R. Co., 49 Barb. 148.
 
 53 MEDIATE EVIDENCE. 
 
 Next, as to such mediate evidence as is of a secondary description. 
 
 As information derived through another person is in its own 
 
 nature inferior in point of certainty to that which is derived iiiime- 
 
 diatelv from an eye or ear witness,^ so, *even in cases where 
 
 L -• the party from whom such testimony is derived delivered it 
 
 8 The highest degree of certainty of which the mind is capable, with respect to 
 the existence of a particular fact, consists in a knowledge of it derived from actual 
 perception of the fact by the senses ; and even this degree of evidence is obviously 
 capable of being strengthened or weakened by particular circumstances. It is 
 seldom, however, that a jury can act upon knowledge of this description; it 
 rarely happens that a fact which can be decided by mere inspection is submitted 
 to their consideration. In some instances, however, an inspection by the jury 
 conduces to their decision ; where the question turns upon local situation, a view 
 may be had. So the judges in cases of mayhem, used to act super visum vul- 
 neris ; so a jury of matrons, upon the plea of pregnancy, inspect the person of 
 the prisoner. The degree of evidence which ranks the second in the scale, con- 
 sists of information derived, not from actual perception by our senses, but from 
 the relation and information of others who have had the means of acquiring actual 
 knowledge of the facts, and in whose qualifications for acquiring that knowledge 
 and retaining it, and faithfulness in afterwards communicating it, we can place 
 confidence. 
 
 Information thus derived is evidently inferior, in point of certainty, to that 
 knowledge which is acquired by means of the senses, since it is one step removed 
 from the highest and most perfect source. The truth of the fact in question 
 depends upon the powers of perception possessed by another ; the opportunity 
 afforded him of applying them; his diligence in making that application, the 
 strength of his i-ecollection, and his inclination to speak or to write the truth. It 
 is, however, upon knowledge thus derived that juries must in general act ; they 
 must be informed of the res gestae by those who have been eye and ear witnesses 
 of them ; their means of knowledge and their faithful communication of it, being 
 guarded by the securest means which the law can devise. A third, and still 
 inferior ground of belief, consists in information which we derive, not imme- 
 diately from one who has had actual knowledge of the fact by the perception of 
 his senses, but from one who knows nothing more of the fact than that it has 
 been asserted by some other person ; this species of evidence, which is generally 
 termed hearsay evidence, is evidently inferior, in point of certainty, to the former, 
 even for the common purposes of daily intercourse in society; for, although the 
 author of the assertion may be known, and his veracity highly appreciated, there 
 is a greater latitude afforded for deception, mistake, and misapprehension, and 
 for defect of memory, and hence a degree of doul)t must result, which must evi- 
 dently be increased in proportion to the number of persons through whom the 
 communication has been transmitted ; and, consequently, where the author is 
 unknown, and the number of intermediate parties who have acted in the trans- 
 mission is also unknown, the knowledge must be vague and uncertain, even as 
 applied to the common aHairs of life. But for the purposes of proof in a court 
 of justice, a still stronger reason operates to the rejection of such evidence, 
 namely that it cannot be subjected to the ordinary tests which the law has pro 
 vided for the ascertainment of truth, the obligation of an oath, and the oppor-
 
 SECONDARY MEDIATE EVIDENCE. 55 
 
 under the sanction of a judicial *oath, and althouffh the partv ^ 
 to be affected by it had the opportunity to cross-examine, yet L J 
 the testimony so given would still be inferior in degree to the direct 
 testimony of the same witness, and consequently such inferior evi- 
 dence would be excluded by the general principle ah'cady adverted to, 
 so long as the original witness could himself be produced. 
 
 But in ordinary cases, where the testimony formerly given con- 
 sists of mere declarations, which rest principally, if not entirely, on 
 the credit of the party who made them, such evidence is of a still 
 weaker and more imperfect description, not being sanctioned by 
 either of the great tests of truth already mentioned. Hence the 
 general rule of *law is, that such evidence cannot be received r^rp-\ 
 except in particular instances where the necessity is urgent, 
 and peculiar considerations sanction a departure from the general rule. 
 
 tunity afforded for cross-examination ; for these, or equivalent ones, are the 
 <;;uarantee8 of truth, which the law in ordinary eases invariably requires. In 
 the common course of life, evidence of this nature is frequently, nay usually, 
 acted upon without scruple ; but In the ordinary affairs of life there is, in cren- 
 eral, no considerable temptation to deceive : on the contrary, a legal investiga- 
 tion of a fact, which involves the highest and dearest interests of the parties con- 
 cerned — property, character, nay liberty, or life itself — presents the greatest 
 possible temptations to deceive ; and therefore that evidence which is admitted 
 before a jury must be guarded by greater restraints and stricter rules than 
 those which are sufficient for the common purposes of life. 
 
 Even if it were to be assumed that one who had been long enured to judicial 
 habits might be able to assign to such evidence just so much and no greater 
 credit than it deserved, yet, upon the minds of a jury unskilled in the natui-e of 
 judicial proofs, evidence of this kind vrould frequently make an erroneous im- 
 pression. Being accustomed in the common concerns of life, to act upon hearsay 
 and report, they would naturally be inclined to give such credit when acting 
 judicially ; they would be unable to reduce such evidence to its proper standard, 
 when placed in competition with more certain and satisfactory evidence : they 
 would, in consequence of their previous habits, be apt to forget how little reli- 
 ance ought to be placed upon evidence which may so easily and securely be fab- 
 ricated ; their minds would be confused and embarrassed by a mass of conflict- 
 ing testimony ; and they would be liable to be prejudiced and biassed by the 
 character of the person from whom the evidence was derived. In addition to 
 this, since everything vrould depend upon the character of the party who made 
 the assertion, and the means of knowledge which he possessed, the evidence, if 
 admitted, would requii-e support from proof of the character and respectability 
 of the asserting party ; and evei*y question might branch out into an indefinite 
 number of collateral issues. 
 
 Upon these grounds it is that the mere recital of a fact, that is, the mere oral 
 assertion or written enti-y by an individual that a particular fact is true, cannot 
 be received In evidence. See Gambler on the Study of Moral Evidence.
 
 6b MEDIATEEVIDE^^CE. 
 
 Where a •witness to facts might be produced and examined on oath, 
 little doubt could be entertained that hearsay evidence of his mere 
 declaration, heard and detailed by another, ought to be excluded, so 
 infinitely inferior in degree must such hearsay evidence be when com- 
 pared with direct testimony delivered in open Court. 
 
 Immediate testimony is given under the solemn sanction of an 
 oath, in the presence of the public; the jury have the advantage 
 of observing the deportment of the Avitness, the manner in which he 
 gives his testimony : in particular, whether as one relying on the 
 consistency of truth, he answers promptly and readily according to 
 the suggestions of his memory, or with hesitation and difficulty, 
 either attempting to evade direct answers, or to gain time to weigh 
 them, in order to avoid contradictions and inconsistency ; whether 
 he readily answers all questions indifferently, whether they make in 
 favor or against the party whose witness he is, or he gives favor- 
 able answers on the one side with willingness and readiness, on the 
 other with difficulty and reluctance. The attention of such a witness 
 is called directly and immediately to the very facts of which the 
 disclosure is material ; his means of knowledge, memory, situation, 
 connection with the parties, and his motives, are subject to the 
 severe and trying test of cross-examination, by means of which fraud- 
 ulent witnesses are often surprised and detected. 
 
 In all these important particulars mediate evidence is usually 
 defective; for although no doubt be entertained that the witness 
 examined heard from another the statement which he is ready to 
 repeat, yet that other did not make the communication under the 
 sanction of an oath ; there are no sufficient means of ascertaining 
 whether he had the opportunity or the capacity for minute and 
 *^ccurate observation, nor of judging as to the tenacity of 
 L ' J his memory ; his attention in making the communication may 
 not have been sufficiently directed to many of the particular facts, 
 which afterwards appear to be material ; he may have omitted many 
 which are important, or, not knowing that any such use would after- 
 wards be made of his declarations, may have expressed himself with- 
 out that caution and accuracy which he would have deemed to be 
 necessary had he been examined under the sanction of an oath before 
 a jiubiic tiihunal, having his attention particularly directed to each 
 material fact, and with a full knowledge of the important conse- 
 quences which might result from his testimony with respect to the 
 property, liberty, or lives of others, and the necessity for attention 
 and caution in liis answers. In addition to this, he may have been
 
 SECONDARY, WHY GENERALLY EXCLUDED, 57 
 
 induced to misrepresent facts on the particular occasion, under the 
 influence of indirect motives, ^vliich, without the opportunity of cross- 
 examination, it is impossible to trace or even to surmise. 
 
 Where the communication is derived through several intermediate 
 witnesses, it is still weaker in degree ; there is greater latitude 
 afforded for misunderstanding and mistake, or even designed wilful 
 misrepresentation ; and it is more difficult to appreciate the veracity 
 of the original witness, the means which he possessed of acquiring 
 information, and the motives by which he was actuated in making 
 the communication. Ordinary experience shows how little credit is 
 due to such mediate testimony, and how frequently it happens that 
 even most absurd and improbable reports acquire credit. 
 
 But where such immediate testimony is unattainable, and declara- 
 tions oral or written can be proved to have been made, why, it may 
 be asked, should not these, in default of better evidence, be admitted? 
 as such evidence would, in numerous instances, be sufficient to con- 
 vince an ordinary individual, why should truth derivable from such 
 evidence be excluded ? The answer is, because if such *evi- 
 dence were generally receivable, the uncertainty and con- ^ ' J 
 fusion which would result from its general reception would far out- 
 weigh the benefit which might possibly be derived from its admission 
 in particular instances. 
 
 The law for regulating the reception of evidence ought to proceed 
 upon certain grounds, and prescribe plain and determinate limits : 
 if none were to be prescribed, the most serious inconvenience would 
 be experienced in the administration of justice ; the trials of causes 
 would be unnecessarily protracted by the admission of unnecessary 
 evidence, and the attention of the jurors would often be distracted 
 from the consideration of that which was material and useful, and 
 applied to that which was unimportant, or even irrelevant : on the 
 other hand, indefinite and obscure boundaries, which occasioned the 
 admission of evidence to be encumbered with doubts and difficulties, 
 would be worse than none. 
 
 To take a strong case : suppose that a man, asserting that he is 
 urged by the reproaches of his conscience to confess a crime of 
 great enormity, surrenders himself into the hands of justice, and 
 that his ample confession involves others as having been his guiltv 
 associates ; it may easily be supposed that in such a case the appa- 
 rently sincere penitence of the self-accuser, and the great improba- 
 bility that such a statement under the circumstances could possibly 
 be founded on any but sincere motives, would strongly tend to
 
 58 M E D I A T E E V I D E N C E. 
 
 induce one who heard the confession, and knew the circumstances 
 under which it was made, to give it credit. This may readily be 
 admitted : the question, however, is not what might happen under 
 special circumstances, but whether they warrant a general rule, and 
 whether a general rule which would include such evidence would 
 not also include a great deal more of a suspicious and unsatisfactory 
 nature. In order to form a conclusion on this subject, all peculiar 
 and adventitious circumstances as to the particular manner, conduct 
 and demeanor of the penitent, his expressions of sorrow and con- 
 trition, *must be left out of the account ; these are merely 
 
 r*591 • • • • • 
 
 L -' adventitious, and are circumstances in themselves too variable 
 
 and indefinite to furnish a rule of admission or exclusion. Stripped 
 of such merely casual circumstances as, whatever their influence 
 might be in particular instances, could supply no general and cer- 
 tain rule, the question would be, whether the consideration that the 
 party accusing another avowed his own guilt, to the same or it may be 
 to a less extent, supplied a general sanction for the reception of such 
 evidence. On this question it is difficult to raise a doubt. 
 
 To ascertain by what impulses and motives a person so situated 
 might be actuated in making such a statement, is far beyond the 
 power of .human wisdom ; that he was really the guilty person he 
 avowed himself to be, might indeed be readily inferred, so far as 
 he alone was concerned ; but in charging others as his associates, it 
 is far from impossible that he might practice deceit or misrepresen- 
 tation from sinister motives : it might be in the hope of procuring in 
 his own favor a mitigation of punishment or even a pardon ; it might 
 be for the purpose of extenuating his own conduct ; or even that he 
 acted from motives of malice and revenge, or for the sake of reward, 
 in a case where security and reward were held out as inducements to 
 a detection, or might expect such a result in the event of the con- 
 viction of the party whom he thus charged with being a guilty 
 associate. 
 
 To establish, therefore, a general rule, that where a self-accuser 
 at the time of his confession charged another with the commission of 
 the same crime, the confession should be received against the latter, 
 would be to admit evidence in many cases of too suspicious and 
 dajigerous a description to be relied on generally, especially by 
 juries, who Avould frequently be destitute of those collateral aids 
 which would enable an individual accjuainted with all the minute 
 circumstances of the case to form his; own judgment, and who for
 
 SECONDARY, WHY GENERALLY EXCLUDED. 60 
 
 "want of such means might frequently *be induced to give r*pA-| 
 credit to a statement wlierc an individual would have withheld 
 his confidence altogether. 
 
 Again, in respect of civil liability, it is very possible that a decla- 
 ration by A, that he was jointly liable with B to the payment of a 
 debt or duty, would, under particular circumstances, entitle him to 
 credit; it might be that the very circumstance of his at once admit- 
 ting his own responsibility would be a sanction for believing that B 
 was also liable : but it might also happen that such an admission was 
 but a mere artifice, resorted to for the purpose either of causing 
 another who was not liable to contribute to the payment of A's debt, 
 or even resulted from collusion Avith one setting up a false claim to 
 defraud B. 
 
 It is obvious, therefore, that a general rule which admitted the 
 mere statement of one man to be used against another merely on 
 the ground that such statement Avas apparently contrary to the 
 interest of him who made it, though it might occasionally tend to the 
 ends of justice, would in other instances be productive of mischief 
 and injustice. 
 
 But if the consideration that the statement was apparently con- 
 trary to the interest of the party who made it, would not in general 
 warrant its reception, it is plain that the reasons for exclusion Avould 
 operate still more forcibly to the general exclusion of statements, 
 the reception of which was not sanctioned by some general rule of 
 law. In individual instances, casual and adventitious circumstances, 
 and in particular a full conviction of the veracity and accuracy, as 
 well of the party who made as of the party who communicated the 
 declaration, would be a sufficient ground for belief, on which an in- 
 dividual might safely act ; but such special grounds can seldom form 
 the basis of a general rule ; and the consideration that a man might 
 in particular instances trust to such evidence, would supply no suffi- 
 cient reason for the general reception of such evidence before a jury, 
 who would usually be destitute of those peculiar means of judging of 
 the credit due to the evidence by the *aid of which an ordi- r^p-i-i 
 nary individual would be enabled to decide, and consequently 
 be peculiarly liable to imposition were such evidence to be generally 
 admissible. 
 
 Hence it is, that except in the instances which will presently be 
 
 noticed, where a rule of exception can be established to the contrary, 
 
 the laAv excludes all mediate or hearsay evidence of mere declarations 
 
 made by others to those who are sworn and examined. In so doing, 
 
 5
 
 61 MEDIATE EVIDENCE. 
 
 the trutli may sometimes be excluded, but ample compensation is 
 made by the further exclusion of a mass of evidence which would 
 tend to deceive and mislead : the result is, on the whole, greatly on 
 the side of justice : the rule obstructs one source of truth, but it also 
 excludes a flood of error. 
 
 Next, then, in what instances, and under what sanction does the 
 law admit secondary mediate evidence? 
 
 In the first place, it seems to be a general rule, that where a wit- 
 ness already examined in a judicial proceeding between the same 
 parties is since dead, his former examination is admissible as secondary 
 evidence ; for in such case the testimony was given under the obliga- 
 tions of an oath, and the adversary had, or might have had the bene- 
 fit of a cross-examination.^ 
 
 Where, however, the party against whom the evidence is offered 
 had not the opportunity to cross-examine, the deposition or examina- 
 tion is usually inadmissible; at least its inadmissibility is not war- 
 ranted by the rule just adverted to. On these grounds it is that the 
 depositions of witnesses taken by magistrates in cases of felony, under 
 the statutes 1 & 2 Ph. & M., c. 13 ; 2 & 3 Ph. & M., c. 10 ; and 7 
 Geo. IV., c. 64, though admissible when taken in the presence of the 
 prisoner, who has thus had the opportunity to cross-examine, have 
 been held to be inadmissible when taken in the absence of the pris- 
 oner.*' It is again to be observed, that where a party against whom 
 r*eoi s^^ch evidence is offered had the opportunity to *cross-examine, 
 it is the same thing in effect as if he had availed himself of 
 the o])portunity, provided it was taken in the course of a proceeding 
 to which he was a party, for otherwise he was not bound to pay any 
 attention to it. 
 
 The first great class where mediate testimony is receivable as second- 
 ary evidence on special grounds, although the statement was not on 
 oath, and although the adversary had no opportunity to cross-examine, 
 consists of the declarations made by persons since deceased, on the 
 subject of pedigree, custom, boundary, and the like, where from the 
 nature of the subject-matter of the declarations and situation of the 
 parties it is reasonably to be presumed that they knew the fact. 
 
 In the first ])hice, the fact to be proved must be of a public nature; 
 
 '' Vide infra, tit. Detositions ; and sec Vol. II., tit. Detositions. 
 
 ' But see Jioudereau et al. v. Montgomery et al., 4 Wash. C. C. Kep. 186 ; 
 Elliott V. Piersol, 1 I'et. o.j7. 
 
 G.
 
 SECONDARY, WHEN ADMISSIBLE. 62 
 
 otherwise it is not to be presumed that the individual from whom the 
 tradition was derived had tlie means of knowdedge. 
 
 Secondly. As in the case of general reputation, such evidence must, 
 in all cases wdiere any question of public concern is in issue, be con- 
 fined to general declarations, to the exclusion of mere declarations as 
 to particular facts. 
 
 Thirdly. Traditionary evidence as to rights must be derived fr.om 
 those persons who were in a situation to know what the rights were ; 
 and in the case of pedigree, declarations are not admissible, unless 
 they be derived from such as were connected with the family. 
 
 Fourthly. As evidence of this description partakes of the weakness 
 and infirmities of hearsay report/ its credibility depends *mainly r*po-] 
 in the absence of all temptation to misrepresent the facts: it 
 follows that it cannot be trusted, and is inadmissible, under circum- 
 stances which W'cre likely to influence and bias those from whom the 
 evidence is derived. Upon this principle it has been held that a 
 declaration relating to a pedigree made j^ost litem motam, cannot be 
 received.'' But in the case of Nicliolls v. ParTicr} traditionary evi- 
 dence of what old persons, then dead, had said concerning the bound- 
 aries of the parish and manor (the subject of the action) was admitted 
 in evidence, although the old persons were parishioners, and claimed 
 
 ' Grose, J., in the case of Morewood v. Wood, 14 East 330, states the case of a 
 pedigree which was tried at Winchester, where there was a strong reputation 
 throughout all the country one way, and a gveat number of persons were exam- 
 ined to it; but after all, the whole was overturned, and.proved to have no foun- 
 dation whatsoever, by the production of a single paper from the Herald's office ; 
 which shows (observed the learned judge) how cautiously this sort of evidence 
 ought to be admitted. See also Lord Ellenborough's observations, 1 M. & S. (28 
 E. C. L. R.) 616-7, where he observes that reputation in general is weak evi- 
 dence ; and of Buller, J., Morewood v. Wood, 14 East 330. 
 
 ^ Case of Berl-eley Peerage, 4 Camp. 401 ; Sussex Peerage case, 11 CI. & F. 85. 
 See the cases below, tit. Pedigree ; and see Rex v. Cotton, 3 Camp. 444, cor. 
 Dampier ; where, upon an indictment against an occupier of a farm, for not re- 
 pairing a road ratione tenurce, an awai'd made many years before, when the same 
 subject was in dispute between a former occupier and the township, was rejected 
 as inadmissible, on the ground that the declarations of witnesses, since deceased,' 
 made before the arbitrator on that occasion, could not have been received, hav- 
 ing been made post litem motam, and that the opinion of the arbitrator, founded 
 upon such testimony, could not be entitled to greater credit. It is vexata qucestio 
 whether such declarations vaadiQ post litem motam would not be admissible, if it 
 could be shown that the person making them did not know of the existence of 
 any controversy. See Berkeley Peerage case, Monkton v. Attorney-General, 2 
 Russ. & M. 147. 
 
 M4 East 331.
 
 63 MEDIATE EVIDENCE. 
 
 rights of common on the wastes, which would be enlarged by their 
 several declarations, there not appearing to be any dispute at the time 
 respecting the right of the old persons making the declarations, at least 
 no litigation pending: so that those persons could not be considered as 
 having it in view to make declarations for themselves at the time; 
 although, in fact, the boundary had been in long dispute between the 
 respective parishes and manors, and intersecting perambulations had 
 been made both before and after such declarations by the respective 
 parties. 
 
 Lastly, as in the case of general reputation, such evidence is of little 
 or no weight, unless it be supported and confirmed by evidence of 
 the actual exercise and *enjoYment of the right to which such 
 L -J traditionary declaration relates. 
 
 In the next place, notwithstanding the general rule, that the mere 
 declarations of a person, as to a particular fact, are not evidence of 
 that fact; and notwithstanding the limitations by Avhich the reception 
 of evidence of reputation and tradition is guarded, particularly those 
 which confine the admission of such evidence to matters of some pub- 
 lic nature and interest, and exclude reputation and tradition, which 
 relate merely to particular facts ; there are some cases which form 
 exceptions to these rules, and where the privacy of the fact, so far 
 from excluding the hearsay declaration concerning it, seems to in- 
 duce the necessity of its admission. As far as these are referable to 
 any certain principles (for some of them have been looked upon as 
 mere anomalies and. arbitrary exceptions),™ they seem to be confined, 
 for the most part, to instances of facts known only to a few individu- 
 als who possessed peculiar means of knowledge, and consequently 
 where, if the declarations of such individuals were not admissible, all 
 evidence on the subject might be excluded. They are divisible into 
 two distinct classes, the one consisting of declarations or entries 
 against the interest" of the persons making them ; the other, of entries 
 maile by parties in the usual course" of their business. 
 
 AVith respect to the first of these classes, the reception of such de- 
 claration or entry seems to have been founded upon the presumption 
 that the party would not have made it contrary to his own interest, 
 
 " See Lord Kcnyon's observation, 5 T. R. 123. 
 
 ° See the firnt of tliese claKweH fully discussed and explained in Ilighham v. 
 liidi/wa;/, ,'J Sirilth's Leading Cases 1S3, and the notes to that case. 
 
 " See this cIuhh fully discussed in Price \. Lord Torrington, 1 Smith's Leading 
 Cases 139, and the notes to that case. It seems doul)tful whether m declaration 
 made in the usual course of business, though taken down at the time by a third 
 person in such course, would be evidence : see Brain v. Preece, 11 M. & W. 773.
 
 DECLARATIONS AGAINST INTEREST. 65 
 
 unless it had been true. *The absence not merely of any in- [-:upc:-| 
 terest to falsify it, but the circumstance of its being actually 
 adverse to his interest, creates the strongest improbability that it is 
 a misrepresentation, and justly is considered to afford a sufficient 
 guarantee for its accuracy to render it admissible as evidence when 
 the person who made it is no more. Thus, where a deceased steward 
 has admitted by entries in his accounts, the receipt of rents,^ or 
 churchwardens have made similar entries of the receipt of moneys 
 from the inhabitants of a sub-division of the parish, for parochial 
 purposes, such admissions have been held to be evidence of payments 
 for those purposes. "^ And upon similar grounds, the declaration of a 
 deceased tenant, that he held the land under a particular person, was 
 held to be admissible to prove the seisin of that person ; such a decla- 
 ration being against his interest, not only because it tended to nega- 
 tive the presumption of his being the freeholder, which his possession 
 would create, but also, since it would have been evidence against him, 
 by the landlord, in an action for use and occupation.' 
 
 The second class of exceptions to the general rule, consists of 
 instances where such evidence derives credit from circumstances, 
 independently of the consideration of an interest to the contrary 
 on the part of the person who made it, viz. : that, it was made by a 
 party in the usual course of his profession, trade or business. An 
 entry so made obviously derives its claim to credit from a considera- 
 tion of the great improbability that such a pei'son would, without any 
 assignable motive, wantonly make an entry of a false fact. The 
 bare possibility of the casual *fabrication of a false entry, 
 made for the purpose of future evidence, could have little ■- -' 
 weight Avhen compared with the importance of the object to be ulti- 
 mately attained. In such cases, therefore, no distinction can be 
 made on the supposition or probability of fraud, in the one case, 
 rather than the other : it must, to prevail, depend on the position, 
 that where the entry contains no acknowledgment against the interest 
 of the vouchee, there exists a greater probability that it was wantonly, 
 carelessly, or mistakenly made ; this, however, must depend on the 
 
 P Barry v. Bebhington, 4 T. R. 514. 
 
 « Stead V. Ileaion, 4 T. R. 669. 
 
 "■ Uncle V. Watson, 4 Taunt. 16. See also Perigalv. Nicholson, 1 Wightw. 63. 
 See also Iligham v. Ridgwat/, 10 East 109 ; 2 Smith's Lead. Cases 183 ; where 
 it was held that an entry made by a deceased man-midwife that he had delivered 
 a woman of a child on a particular day, and referring to his ledger, in which the 
 charge for his attendance was marked paid, was evidence on the trial of an issue 
 as to the age of the child.
 
 66 INDIRECT EVIDENCE. 
 
 circumstances under -whicli it was made; if it was a written entry 
 made in the usual course of a man's profession or trade, in the 
 absence of fraud, it carries with it a reasonable degree of probability 
 that it was made according to the truth. 
 
 As the exact rules by which the reception of these two classes of 
 evidence is governed can only be thoroughly explained by reference 
 to the decisions on the subject they will be detailed at a future 
 opi^ortunity ; for the present it will suffice to make a few observations 
 on the general principle which ought to regulate the admissibility of 
 such evidence. 
 
 In the first place, as such evidence is in general excluded on the 
 grounds already adverted to, it is essential that some special neces- 
 sity should exist in the particular class of cases for deviating from 
 the general rule, and that it should never be resorted to, until the 
 higher degree of evidence which the party himself might have given 
 be shown to be no longer attainable in consequence of his death. 
 
 And even then, in order to warrant the reception of such secondary 
 evidence, it is essential that circumstances should exist which afford 
 a reasonable presumption that the person who spoke or wrote that 
 which is offered in evidence had means of knowing the fact, and that 
 he was not likely to have misrepresented it. 
 
 [*67] ^CHAPTER IV. 
 
 INDIRECT EVIDENCE. 
 
 Next, as to the admission of indirect evidence. 
 
 Having now briefly noticed the general principles which govern 
 the reception of direct evidence to prove a disputed fact by the aid 
 of testimony, whether immediate or mediate, we are next to con- 
 sider those which govern the admission of indirect evidence : that 
 is, of facts collateral to the disputed fact, but from the existence of 
 which the truth of the fact in dispute may be inferred. 
 
 The necessity for resorting to indirect or circumstantial evidence 
 is manifest. It very frequently happens that no direct and positive 
 testimony can be ])rocured ; and often, where it can be had, it is 
 necessary to try its accuracy and weight by comparing it with the 
 surroundinj' circumstances.
 
 INDIRECT EVIDENCE. 67 
 
 The want of written documents, the treachery and fallaciousness 
 of the human memory, the great temptations which perpetually 
 occur to exclude the truth, by the suppression of evidence, or the 
 fabrication of false testimony, render it necessary to call in aid every 
 means of ascertaining the truth upon which the law can safely rely. 
 
 Where direct evidence of the fact in dispute is wanting, the more 
 the jury can see of the surrounding facts and circumstances, the 
 more correct their judgment is likely to be. It is possible that 
 some circumstances may be misrepresented, or acted with a view to 
 deceive; but the whole context of circumstances cannot be fabricated; 
 the false invention must have its boundaries, where it may be com- 
 pared with the truth: and, therefore, the more extensive the view of 
 the jury is of all the minute ^circumstances of the transaction, r;!cpQ-| 
 the more likely will they be to arrive at a true conclusion. 
 Truth is necessarily consistent with itself; in other words, all facts 
 which really did happen, did actually consist and agree Avith each 
 other. If then the circumstances of the case, as detailed in evidence, 
 are incongruous and inconsistent, that inconsistency must have arisen 
 either from mistake, from wilful misrepresentation, or from the 
 correct representation of facts prepared and acted with a view to 
 deceive. From Avhatever source the inconsistency may arise, it is 
 easy to see that the greater the number of circumstances which are 
 exhibited to the jury, the more likely will it be that the truth will 
 prevail : since the stronger and more numerous will be the circum- 
 stances on the side of truth. It will be supported by facts, the 
 eifect of which no human sagacity could have foreseen, and which 
 are therefore beyond the reach of suspicion : whilst, on the other 
 hand, fraudulent evidence must necessarily be either confined to a 
 few facts, or be open to detection, by affording many opportunities 
 of comparing it with that which is known to be true. Fabricated 
 facts must, in their very nature, be such as are likely to become 
 material. Hence it has frequently been said, that a Avell-supported 
 and consistent body of circumstantial evidence is sometimes stronger 
 than even direct evidence of a fact ; that is, the degree of uncertainty 
 which arises from a doubt as to the credibility of direct Avitnesses, 
 may exceed that which arises upon the question Avhether a proper 
 inference has been made from facts Avell ascertained. A witness may 
 have been suborned to give a false account of a transaction to which 
 he alone was privy, and the whole rests upon the degree of credit to 
 be attached to the veracity of the individual ; but Avhere a great 
 number of independent facts conspire to the same conclusion, and
 
 68 INDIRECT EVIDENCE. 
 
 are supported hj many unconnected witnesses, the degree of credi- 
 bility to be attached to the evidence increases in a very high pro- 
 portion, arising from the improbability that all those witnesses should 
 be mistaken *or perjured, and that all the circumstances 
 
 r*69"l r J :> 
 
 L -■ should have happened contrary to the usual and ordinary 
 course of human affairs. The consideration, however, of the credit 
 due to circumstantial evidence, belongs to another place ;* at present, 
 the subject is mentioned merely with a view to illustrate the neces- 
 sity of opening to a jury the most ample view of all the facts which 
 belong to the disputed transactions ; leaving the consideration of the 
 importance due to such evidence to be examined hereafter. 
 
 Agreeably to this notion and according to the simplicity of the 
 ancient law, it was provided that every trial should be had before a 
 jury who lived so near to the scene of the disputed transaction that 
 they might reasonably be supposed to possess actual and personal 
 knowledo-e of the circumstances, to have heard and seen what was 
 done. Later experience has shown that a knowledge of the facts to 
 be tried, such as a residence in the neighborhood supplies, affords 
 but an imperfect and dubious light for the investigation of truth ; 
 and that justice suffers more from the prejudices and false notions of 
 the facts which a residence in the neighborhood usually affords, than 
 it gains in point of certainty from a previous knowledge, on the part 
 of the jury, of the parties or of the circumstances of the case. At 
 this day, therefore, it is no longer necessary, either in civil or in 
 criminal cases, that the jury should be returned from the vicinage ; 
 they are taken Avithout distinction from the body of the county at 
 large ; and being in general strangers to the litigant parties and to 
 the facts in dispute, may be presumed to discharge their important 
 duties without partiality or prejudice. Still, however, the end to be 
 attained is the same, although the means of attaining it are different ; 
 it is still the great object of the law that the jury should be fully 
 possessed of all the facts and circumstances of the case ; and as they 
 r*7A-| have *not been actually witnesses of the transaction, either 
 in fact or in contemplation of law, the scene is to be exhibited 
 to them by the only means of recalling a past transaction, that is, 
 by oral evidence and written documents, and the jury are to collect 
 the facts by the senses and perceptions of others, to whose account 
 credit is due. 
 
 In consequence, too, of the frequent failure of direct and positive 
 evidence, recourse must be had to presumptions and inferences from 
 * Vide infra., tit. Circumstantial Evidence.
 
 INDIRECT EVIDENCE. 70 
 
 facts and circumstances which are known, and wliich serve as indica- 
 tions, more or less certain, of those which are disputed and contested. 
 It is consequently a matter of the highest importance to consider the 
 grounds, nature and force of such indirect evidence : and to inquire 
 what facts, either singly or collectively, are captihle of supplying such 
 inferences as can safely be acted upon.*" 
 
 Presumptions, and strong ones, are continually founded upon 
 knowledge of the human character, and of the motives, passions, 
 and feelings, by which the mind is usually influenced. Experience 
 and observation show that the conduct of mankind is governed by 
 general laws, which operate, under similar circumstances, with almost 
 as much regularity and uniformity as the mechanical laws of nature 
 themselves. The effect of particular motives upon human conduct is 
 the subject of every man's observation and experience, to a greater or 
 less extent; and in proportion to his attention, means of observation, 
 and acuteness, every one becomes a judge of the human character, 
 and can conjecture on the one hand, what would be the effect and 
 influence of motives upon any individual under particular circum- 
 stances, and on the other hand, is able to presume and infer the motive 
 by which an agent was actuated, from the particular course of con- 
 duct which he adopted. Upon this ground it is that evidence is daily 
 *adduced in courts of justice of the particular motives by r^rr-,-, 
 "which a party was influenced, in order that the jury may infer 
 what his conduct was under those circumstances ; and on the other 
 hand, juries are as frequently called upon to infer what a man's 
 motives and. intentions have been, from his conduct and his acts. 
 All this is done, because every man is presumed to possess a know- 
 ledge of the connection between motives and conduct, intention and 
 acts, which he has acquired from experience, and to be able to pre- 
 sume and infer the one from the other. 
 
 The presumption of conduct, or of any particular act, from the 
 motives by which the supposed agent was known to be influenced, is 
 more or less cogent as the motive itself was stronger or weaker, and 
 as experience has proved it to be more or less efficacious in affecting 
 a man's conduct. The presumption of particular intention, from a 
 man's acts and conduct, is more or less forcible, according to their 
 nature, and their greater or less tendency to effect the supposed in- 
 tention, and the improbability, derived from experience, that they 
 could have resulted from any other motive, or have been done with 
 any other intention. Presumptions of this nature are of most essen- 
 '' See Vol. II., tit. Presumptions.
 
 71 INDIRECT EVIDENCE. 
 
 tial importance in criminal cases. Where a heinous crime has been 
 committed, as, for instance, murder by means of poison, and where 
 it is obvious that theft was not the object of tlie guilty party, it is 
 essential to inquire Avhether the accused was influenced by any motive 
 to commit such an offence; the absence of all motive, whether of 
 avarice or revenge, affords a strong presumption of innocence, where 
 the fact is in other respects doubtful, because experience of human 
 nature shows that men do not commit mischief wantonly and gratui- 
 tously, without any prospect of advantage ; still less do they perpe- 
 trate enormous crimes, and subject themselves to the severest penal- 
 ties of the law, without the strongest motives : when, on the con- 
 trary, other strong presumptions appear against the accused, the 
 knowledge that he was influenced by a very strong motive *to 
 L "-^ commit such a crime, must of necessity greatly add to the 
 probability of his guilt. 
 
 In criminal cases a question usually arises as to the intention of 
 the accused, since it is, in general, the guilty intention with which 
 an act is done that renders it criminal ; and in numerous instances 
 a particular intention is made an essential ingredient in the statu- 
 tory offence. But intention, which is the mere internal and invisible 
 act or resolve of the mind, cannot be judged of except from exter- 
 nal and visible acts ; and in all such cases, and many others, a man's 
 object and motives must be inferred from his conduct ; and what par- 
 ticular acts and conduct are suSicient to indicate the guilty intention 
 which is imputed to the accused, is a question of fact to be decided 
 by those who are conversant in human affairs, and whose experience 
 enables them to judge of the connection between conduct and in- 
 tention. 
 
 In many of the common concerns of life a man may act from a 
 complication of motives which human sagacity cannot unravel; the 
 secret workings of which Omniscience alone can understand ; but in 
 the case of a crime defined by the law, and where, consequently, both 
 the act itself and the intention are simple and definite, so much 
 difficulty does not prevail in the ascertainment of intention ; in such 
 Instances it is reasonable to infer, that a man intended and contem- 
 plated that end and result which is the natural and immediate con- 
 sequence of the means useil by him ; and this is the ordinary 
 presumption of law. In criminal proceedings, the consideration 
 of the conduct of the accused will, in other respects, be found to be 
 of great importance in determining upon his guilt or innocence, 
 where there is either no direct evidence of the fact, or such as can- 
 not standing alone be safely relied upon.
 
 INDIRECT EVIDENCE. 72 
 
 The conduct which may afford an inference in such a case, may 
 consist either in the seeking opportunities and means for committing 
 such an act, or in attempting to avoid suspicion or injury by flight, 
 or in concealing *evidence of guilt, or even in sliowing an r-jc-o-i 
 anxiety to do so; for it is certain that the guilty person must 
 have had the opportunity and means of committing the offence; and 
 it is probable that he would previously watch for such an opportu- 
 nity, and he must have procured the means. Again, it is also pro- 
 bable that the guilty person, goaded by the stings of conscience, or 
 at least actuated by fear of detection and of punishment, would use 
 every effort within his power to avoid suspicion, or at least inquiry ; 
 and experience fully proves that means, in the hour of terror and 
 alarm, are often resorted to by the guilty, in the hope of providing 
 security, which, so far from preventing or lulling suspicion, provoke 
 and excite it, and turn out to be forcible evidence of guilt. Flight; 
 the fabrication of false and contradictory accounts, for the sake of 
 diverting inquiry; the concealment of the instruments of violence; 
 the destruction or removal of proofs tending either to show that an 
 offence has been committed, or to ascertain the offender, are circum- 
 stances indicatory of guilt, since they are acts to which sovie motive 
 is attributable, and are such as are not likely to have been adopted 
 by an innocent man ; but such, on the contrary, as according to ex- 
 perience are usually resorted to by the guilty. A full confession," 
 of guilt, although it be but presumptive evidence, is one of the surest 
 proofs of guilt, because it rests upon the strong presumption that no 
 innocent man would sacrifice his life^ liberty, or even his reputation, 
 by a declaration of that which was untrue.^ The presumption im- 
 
 * See tit. Admisson — Confession. 
 
 ^ Confessions under the influence of hope or fear are not admissible : State v. 
 York, 37 N. H. 175 ; State v. Wentworth, Ibid. 196 ; Shifflefs Case, U Grat. 652 ; 
 State V. George, 5 Jones (Law) 233 ; Bob v. State, 32 Ala. 560 ; Meyer v. State, 
 19 Arkansas 156; Fouts v. State, 8 Ohio (N. S.) 98; State v. Fisher, 6 Jones 
 (Law) 473; Simon v. State, 36 Miss. 636; Cain v. State, 18 Tex. 387; Ruther- 
 ford V. Comm., 2 Mete. (Ken.) 387. Although confessions improperly obtained 
 are not admissible, yet any facts brought to light in consequence of such con- 
 fessions may be properly received in evidence: Jane v. Comm., 2 Mete. (Ken.) 
 30. That confessions must be voluntary, without any inducements held out: 
 see State v. Cook, 15 Rich. (Law) 29 ; Joe v. State, 38 Ala. 422 ; Frank v. State, 
 39 Miss. 705 ; Love v. State, 22 Ark. 336 ; McGlothlin v. State, 2 Cald. 223 ; 
 Butler V. Comm., 2 Duvall 435; Hudson v. Comm., Ibid. 531 ; Price v. State, 18 
 Ohio St. 418 ; Flanagin v. State, 25 Ark. 92 ; State v. Staley, 14 Minn. 105 ; 
 Comm. V. Curtis, 97 Mass. 574 ; O^Brien v. People, 48 Barb. 274 ; Dinah v.
 
 73 ■ INDIRECT EVIDENCE. 
 
 mediately ceases as soon as it appears that the supposed confession 
 was made under the influence of threats or of promises, which render 
 it uncertain whether the admissions of the accused resulted from a 
 consciousness of guilt, or were wrung from a timid and apprehensive 
 mind, deluded by promises of safety, or subdued by threats of vio- 
 lence or punishment. It may be proper also to remark in this place, 
 that some of those presumptions which have lately been touched 
 
 *upon are to be regarded with great caution : for it sometimes 
 r*741 • .... 
 
 L -• happens that an innocent, but weak and injudicious person, 
 
 will take very undue means for his security, when suspected of a crime. 
 A strong illustration of this is afforded by the case of the uncle, 
 mentioned by Lord Hale. His niece had been heard to cry out, 
 " Good uncle, do not kill me !" and soon afterwards disappeared ; 
 and he being suspected of having destroyed her for the sake of her 
 property, was required to produce her before the justice of assize : 
 he being unable to do this (for she had absconded), but hoping to 
 avert suspicion, procured another girl resembling his niece, and 
 attempted to pass her off as such. The fraud was, however, detected ; 
 and, together with other circumstances, appeared so strongly to indi- 
 cate the guilt of the uncle, that he was convicted and executed for 
 
 State, 39 Ala. 359 ; Miller v. State, 40 Ibid. 54 ; Miller v. People, 39 111. 457 ; 
 Aaron v. State, 39 Ala. 75 ; Williams v. State, Ibid. 532 ; Young v. Comm., 8 
 Bush 366 ; Cady v. State, 44 Miss. 332 ; Beeker v. Crow. 7 Bush 198 ; Thompson 
 V. Comm., 20 Gratt. 724 ; Derby v. Derby, 21 N. J. Eq. 36 ; Frain v. State, 40 Ga. 
 529 ; Austin v. State, 51 111. 236 ; State v. Brockman, 46 Mo. 566 ; People v. 
 Phillips, 42 N. Y. 200 ; State v. Squires, 48 N. H. 364. 
 
 Discoveries of facts which have been made in consequence of inadmissible 
 confessions are competent evidence : Mountain v. State, 40 Ala. 344 ; People v. 
 Jones, 32 Cal. 80: People v. Noy Yen, 34 Cal. 176 : Frederick v. State, 3 W. Va. 
 695; McGlothlin v. State, 2 Cald. 223 ; Selcidge v. State, 30 Te.x. 60. 
 
 Confessions obtained by artifice or deceit are iidinissible : Comm. v. Hanlon, 
 3 Brewst. 461. 
 
 The whole confession must be taken toii;other: Conner v. State, 34 Tex. 659 ; 
 Crawford v. Slate, 4 Cald. 190; State v. Worthinyton, 64 N. C. 594; Grisivold 
 V. State, 24 Wise. 144; State v. Fuller, 39 Vt. 75. When the defendant is in- 
 duced to iiiiike confessions under a promise that he will not be prosecuted, and 
 he afterwards makes additional confessions, they cannot be used against him 
 unless it be shown by the best evidence that the motive which had induced the 
 first confession had ceased to operate : State v. Loiohorne, 66 N. C. 538 ; Strady 
 v. State, 5 Cald. 300. Statements made in the presence of one under arrest on a 
 criminal cliar;^c, to whicli the prisoner makes no reply, are not admissible: 
 Comm. v. Walker, V.', Allen 570 ; People v. McCrea, 32 Cal. 98. Where a witness 
 on a criminal trial, who testifies to a confession, did not understand all that the 
 prisoner said, no part is admissible : People v. Gilabert, 39 Cal. 663.
 
 PRESUMPTIONS. 74 
 
 the supposed murder of the niece, "who, as it afterwards turned out, 
 Avas still living. 
 
 In civil cases also, the most important presumptions (as will be 
 afterwards more fully seen) are continually founded upon the conduct 
 of the parties : if, for instance, a man suffer a great length of time to 
 elapse without asserting the claim which he at last makes, a pre- 
 sumption arises, either that no real claim ever existed, or that, if it 
 ever did exist, it has since been satisfied f because, in the ordinary 
 course of human affairs, it is not usual to allow real and well-founded 
 claims to lie dormant. So the uninteri'upted enjoyment of property 
 or privileges for a long space of time raises a presumption of a legal 
 right ; for otherwise it is probable that the enjoyment would not have 
 been acquiesced in.® Upon the presumption that after a lapse of 
 six years a debt on simple contract has been satisfied, the Legislature 
 seems to have founded the ^provision in the Statute of Limi- r;c7r-| 
 tation ; a presumption liable to be rebutted by proof of a 
 promise to pay the debt, or an acknowledgment that it still remains 
 due, made within the six years. ^ 
 
 The conduct of a party in omitting to produce that evidence, in 
 elucidation of the subject-matter in dispute, which is within his 
 power, and which rests peculiarly within his own knowledge, fre- 
 quently affords occasion for presumption against him ; since it raises 
 a strong suspicion that such evidence, if adduced, would operate to 
 his prejudice. So forcible is the nature of this presumption, that the 
 law founds upon it a most important elementary rule, which excludes 
 secondary evidence where evidence of higher degree might have been 
 adduced; and this it does, because it is probable that a party wdio 
 withholds the best and most satisfactory evidence from the considera- 
 tion of the jury, and attempts to substitute other and inferior 
 evidence for it, does so because he knows that the better evidence 
 would not serve his purpose.^ 
 
 Upon the same principle, juries are called upon to raise an infer- 
 ence in favor of a defendant in a criminal case from the goodness of 
 his character in society ; a presumption too remote to weigh against 
 
 ^ See Vol. II., tit. Presumptions — Limitations — Prescription. 
 
 * Where a party neglects to take out execution within a year after his judg- 
 ment, he must, in general, revive it by scire facias before he can proceed to 
 execution ; and this is founded upon a presumption that the debt or damages 
 have in the meantime been paid. 
 
 ^ See tit. Limitations. Such a promise to be available, must now be in 
 writing. 
 
 » Vide Infra, tit. Best Evidence.
 
 75 INDIRECT EVIDENCE. 
 
 evidence ■whicli is in itself satisfactory, and wliicli ought never to 
 have any weiglit except in a doubtful case.'' ^ 
 
 Upon similar grounds, presumptions may be derived from tlie 
 artificial course and order of human affairs and dealings, wherever 
 any such course and order exist ; because, in the absence of any 
 reason to suppose the contrary, a probability arises that the usual 
 course of dealing has been adopted. Hence presumptions are 
 founded upon the course of trade, the course of the post, the customs 
 of a particular trade, or of a particular class of people, and 
 L J *even the course of conducting business in the concerns of a 
 private individual, to prove a particular act done in the usual routine 
 of business.' ^ 
 
 '' See tit. CuARACTER. It seems to be the last remnant of compurgation. 
 ^ See Lord Torrington' s case, 1 Salk. !2<S5 ; 1 Smith's Leading Cases 139. 
 
 ^ Evidence of the general character of the defendant is admissible in his favor 
 in a criminal prosecution ; but it is entitled to little weight, unless when the 
 fact is doubtful or the testimony merely presumptive : State v. Wells, C'oxe 
 424 ; United States v. Bouderbush, 1 Baldw. 514 ; Bennet v. State, 8 Humph. 
 118 ; Commonwealth v. Webster, 5 Cush. 295 ; Acldey v. People, 9 Barb. S. C. 
 Rep. 609 ; Schaller v. State, 14 Mo. 502 ; Harrington v. State, 19 Ohio 264 ; Long 
 V. State, 11 Fla. 295; State v. Cresson, 38 Mo. 372. But evidence of bad 
 character is not admissible against him, unless in rebuttal of testimony adduced 
 by him: People v. White, 14 Wend. Ill ; People v. Bodine, 1 Edm. Sel. Cas. 
 36. And vfhen such rebutting evidence is allowed, the witnesses must be con- 
 fined to the defendant's character before he was accused of the crime in ques- 
 tion : Martin v. Simpson, 4 McCord 262. 
 
 In civil cases evidence of the general character of a party is admissible only 
 when it is put in issue, by the pleadings: Anderson v. Long, 10 S. & R. 55; 
 Atkinson v. Graham, 5 Watts 411 ; Fowler \. JEtna Ins. Co., 6 Cow. 673; 
 Potter V. Webb, 6 Greenl. 14; Humjihrey v. Humphrey, 7 Conn. 116; Gough v. 
 St. John, 16 Wend. 646 ; Ward v. Herndon, 5 Port. 352; Seneis v. Plunket, 1 
 Strobh. 372 ; Thayer v. Boyle, 30 Me. 475 ; McKinney v. Rhoad, 5 Watts 343 ; Nash v. 
 Gilkeson, 5 S. & 11. 352 ; Morris v. Hazlewood, 1 Bush 208. In civil suits, evidance 
 of good character is not admissible to rebut imputations of fraud or misconduct: 
 Boardman v. Woodman, 47 N. H. 120. After an attempt to assail the charac- 
 ter of a plaintiff in an action of slander he may prove his good character, that 
 being an action in which character is put in issue, being part of the allegation 
 of the narr.: Holly v. Burgess, 9 Ala. 728 ; Wiuebiddle v. Porterfield, 9 Barr 
 J 37 ; Petrie v. Pose, 1 W. & S. 364; Shmyer v. Miller, 3 W. Ya. 158. 
 
 * "I am myself," says Story, J., " no friend to the almost indiscriminate habit 
 of late years of sotting up particular usages or customs in almost all kinds of 
 business and trade, to control, vary or annul the general lialiilities of parties, 
 under the common law as well as uiiilcr tin; (•oiniiicrcial law. It lias long ap- 
 peared to me, tlnit there is no small danger in admitting such loose and incon- 
 clusive usages and customs, often unknown to |i;r,ticular parties and always 
 iablo to great misunderstandings and misiiifcrjuctations and abuces, to out-
 
 PRESUMPTIONS. 76 
 
 In all such cases tlic course of dealing may be proved before the 
 jury, and is evidence in matters connected with it. The usual time 
 of credit in a particular trade is evidence to show that goods were 
 sold at that credit ; the course of the post is evidence to show that 
 a particular letter, proved to have been put into the post-office, was 
 received in the usual time by the party to whom it was directed. 
 The ground of presumption in this and a multitude of similar in- 
 stances is, that where a regular course of dealing has once been 
 established, that which has usually happened did happen in the par- 
 ticular instance; and such presumptions, like all others, ought to 
 prevail, unless the contrary be proved, or ot least be encountered by 
 an opposite presumption. 
 
 Where a fact or relation is in its nature continuous, after its exist- 
 ence has once been proved, a presumption arises as to its continuance 
 at a subsequent time: for, from the nature of the fact or relation, a 
 very strong presumption arises that it did not cease immediately 
 
 weicrh the well-known and well-settled principles of law. xVnd I rejoice to find 
 that of late years the courts of law, both in England and in America, have been 
 disposed to narrow the limits of the operation of such usa<^es and customs, and 
 to discountenance any further extension of them. The true and appropriate 
 office of a usage or custom is to interpret the otherwise indeterminate intentions 
 of parties, and to ascertain the nature and extent of their contracts, arising not 
 from express stipulations, but from new implications and presumptions and.acts 
 of a doubtful or equivocal character. It may also be admitted to ascertain the 
 true meaning of a particular word or of particular words in a given instrument 
 when the word or vrords have various senses, some common, some qualified, and 
 some technical, according to the subject-matter to which they are applied. But 
 I apprehend that it can never be proper to resort to any usage or custom to con- 
 trol or vary the positive stipulations in a written contract and a fortiori, not in 
 order to contradict them :" The Schooner v. Eeeside, 2 Sumn. 569 5 Macomber v. 
 Parker, 13 Pick. 182 ; Lawrence v. McGregor, 5 Ilam. 311 ; Sampson v. Gazzam, 
 6 Port. 123 ; Cooper v. Kane, 19 Wend. 386 ; Hone v. Mutual Safety Lis. Co., 1 
 Sanf. Sup. Ct. 137. A person who makes a contract is not bound by the usage 
 of a particular business, unless it is so general as to furnish a presumption of 
 knowledge or it is proved that he knew it: Stevens v. Beeves, 9 Pick. 198 ; Wood 
 V. Ilickok, 2 Wend. 501 ; The Paragon, Ware 322 ; Winsor v. Dillaivay, 4 Mete. 
 221 ; Steamboat Albatross v. Wayne, 16 Ohio 513; Nichols v. De Wolf, 1 11. I. 
 147. W^itnesses may be examined to prove the course of a particular trade, but 
 not to show what the law of that trade is : Euan v. Garden, 1 Wash. C. C, Rep. 
 145; Winthrop v. Union Ins. Co., 2 Ibid. 7; Austin v. Taylor, 2 Ham. 64. A 
 usage of an individual, which is known to the person who deals with him, may 
 be given in evidence as tending to prove what was the contract betweeji them : 
 Loring v. Gurney, 5 Pick. 15 ; Naylor v. Semmes, 4 Gill. & Johns. 274 ; Searson 
 v. Heyward, 1 Speers 249 ; Berkshire Woollen Co. v. Porter, 7 Cash 417; Adams 
 V. Otterback, 15 How. S, C. K 539,
 
 76 INDIRECT EVIDENCE. 
 
 after the time when it was proved to exist, and, as there is no par- 
 ticular time when the presumption ceases, that it still continues; 
 therefore, where a 'partnersliip between two persons has once been 
 established, its continuance at a later period is to be presumed, 
 unless the termination be proved.''^ So, where the existence of a 
 particular individual has once been shown, it will, within certain 
 limits, be presumed that he still lives. The presumption as to a 
 man's life after a number of years must depend upon many circum- 
 stances; his habits of life, his age, and constitution: the probable 
 duration of the life of a person, as calculated upon an average, may 
 of course be easily ascertained in every particular case : but for the 
 P^,----, sake of ^practical convenience, the law lays down a rule in some 
 instances, which appears to have been very generally adopted, 
 ^ See tit. Partnership. 
 
 ^ Farr v. Payne, 40 Vt. 615 ; Rhone v. Gale, 12 Minn. 54 ; Innis v. Campbell, 
 1 Rawle 373; Smith v. Knowlton, 11 N. H. 91. So that possession continues: 
 Bayard's Lessee v. Colfox, 4 Wash. C. C. Rep. 38, that a corporation continues 
 to exist: People v. Manhattan Co., 9 Wend. 351 ; even that a wrong continues 
 as a trespass or entry and ouster: Lewis v. Paine, 4 Wend. 423 ; Jackson, ex 
 dem. Miller v. Porter, 4 Wend. 672, A state of peace is to be presumed by 
 courts until the national power of the country declares to the contrary : The 
 People V. McLeod, 1 Hill 377. If a vessel is seaworthy w^hen the policy attaches, 
 it will be presumed that she continues so during the time of the risk, unless it 
 otherwise is shown in proof: Martin v. Fishing Ins. Co., 20 Pick. 389. So the 
 law presumes the residence of a person to continue in a place where it is shown 
 to have been at any time, until the contrary is shown: Prather y. Palmer, 4 
 Pike 456 ; Cawdill v. Thurp>, 1 Iowa 158. A person proved to have been insane 
 at any time is presumed to remain so, until the contrary is proved : Spra<jue v. 
 Duel, 1 Clark 90 ; Thornton v. Appleton, 29 Me. 298. The legal presumption 
 of the continuance of life is not so strong as the legal presumption of innocence : 
 Lockhart v. White, 18 Tex. 102 ; Klein v. Latidmar, 29 Mo. 259 ; Sharp v. John- 
 son, 22 Ark. 79. Proof that a letter addressed to one of the parties was deposited 
 in the post-office, and the postage paid, carries no legal presumption that it Avas 
 received, so as to make secondary evidence of its contents admissible : Freeman 
 V. Morey, 45 Me. 50. A note once proved to exist is presumed to exist still, 
 unless payment be shown, or other circumstances, from which a stronger 
 counter-presumption arises : Bell v. Young, 1 Grant 175. A legal presumption 
 is a conclusion in favor of the existence of one fact from others in proof: Tanner 
 V. Hughes, 3 P. F. Smith 289. If bank notes arc shown to have circulated as 
 money, they will be presumed to be genuine : Hummel v. State, 17 Ohio St. 628. 
 The presumption is that a guarantee endorsed was executed at the same time 
 with the contract: Underwood v. Hossack, 38 111. 208. In the absence of evi- 
 dence to the contrary, it will be presumed that a lost receipt was properly 
 stamped: Thayer v. Barney, 12 Minn. 502. Every child is presumed to be 
 legitimate: Strode v. Magoivan, 2 Rush 621. In the absence of proof, the pre- 
 sumption is tiiat the laws of anntlicr state are the same as those of this state: 
 Hill V. Grigshy, 32 Cul. 55.
 
 PRESUMPTIONS. 77 
 
 that after a person has gone abroad, and has not been heard of for 
 seven years, it is to be presumed that he is dead.' ' The various 
 instances in which facts not in issue may properly be admitted in 
 evidence, in order to prove some other fact by inference from them, 
 are far too numerous to be detailed on this occasion. Some of them 
 will be more properly adverted to in considering the evidence pecu- 
 liar to the proof of particular issues ;™ suffice it to observe at present, 
 
 ' Doe dem. Knvjht v. Nei^ean, 5 B. & Ad. (27 E. C. L. R.) 86 ; 2 M. & W. 894. 
 See tit. Polygamy — Ejectment by Heir-at-Law — Death. 
 
 " Connections frequently consist in similarity of custom or tenure, see tit. 
 Copyhold — Custom; or in unity of design or purpose, see Conspiracy. Thus 
 
 ' Wambaugh v. Schank, 1 Penn. 229; JSfewrnan v. Jenkins, 10 Pick. 515 ; Woods 
 V. Wood's Adnir. 2 Bay 476 ; Sptirr v. Fimhle, 1 Marsh. 278 ; H%ill v. Common- 
 7vealth, Hardin 479 ; Innis v. Campbell, 1 Rawle 373 ; Burr v. Sims, 4 Whart. 
 150 ; Bradleij v. Bradley, Ibid. 173 ; Loring v. Steimnan, 1 Mete. 204 ; Fursaith 
 V. Clark, 1 Post. 409 ; Primm v. Stewart, 7 Tex. 178 ; Tisdale v. Conn. Ins. Co., 
 26 Iowa 170; Flynn v. Coffee, 12 Allen 133; Clarke's Executors v. Canjield, 2 
 McCart. 119. AV^hen a person has not been heard from in seven years, and 
 when last heard from, he was beyond sea, without having any known residence 
 abroad, the legal presumption is, that he is dead ; but there is no presumption 
 that he died at any particular time, or even on the last day of the seven years : 
 Mc Carter v. Camel, 1 Barb. Ch. Rep. 455. The death is generally presumed to 
 have occurred at the expiration of the time: Smith v. KnoivUon, UN. H. 191 ; 
 Burr V. Sims, 4 Whart. 150 ; Bradley v. Bradley, Ibid. 173 ; but not in all cases : 
 State V. Moore, 11 Ired. 160. Although mere absence of a person from his place 
 of residence does not raise a presumption of his death, until after the lapse of 
 seven years without his being heard from, yet his absence for a much less space 
 of time without his being heard from, in connection with other circumstances, 
 will raise such presumption : White v. Mann, 26 Me. 361 ; Merritt v. Thompson, 
 1 Hilt. 550. Where a demandant claimed under one of six children of the 
 former owner of the land, evidence that inquiries had been made in regard to 
 the other five children and that nothing had been heard of them for seven years, 
 was held sufficient to justify a jury in finding that they had died without issue: 
 King v. Fowler, 11 Pick. 302 ; so after forty-eight years : Allen v. Lyons, 2 AVash. 
 C. C. Rep. 475; so after twenty-two years: McComb v. Wright, 5 Johns. Ch. 
 Rep. 263. It is not to be inferred however negatively from these cases, that the 
 ordinary period for raising the presumption of death is not also sufficient to 
 raise the presumption of death without issue ; if the party was without issue 
 when last heard from, or if the issue has also been unheard from for seven 
 years. In a question of survivorship in a common calamity, the legal presump- 
 tions arising from age, sex, and physical strength, do not obtain in our juris- 
 prudence ; but these circumstances are matters of evidence which may be con- 
 sidered : Smith V. Croom, 7 Fla. 81. Where a vessel sailed about the time of 
 a violent storm on her track, and no tidings were heard of her for three years, 
 it was held that the death of those on board might be presumed : Gibbes v. 
 Vincent, 11 Rich. (Law) 323. 
 6
 
 78 INDIRECT EVIDENCE. 
 
 that the admissibility of such evidence always depends on some 
 natural or artificial connection between that which is offered to be 
 proved and that which is proposed to be inferred. 
 
 In general, all the affairs and transactions of mankind are as much 
 connected together in one uniform and consistent whole, without 
 chasm or interruption, and with as much mutual dependence on each 
 other, as the phenomena of nature are; they are governed by general 
 laws; all the links stand in the mutual relations of cause and effect; 
 there is no incident or result which exists independently of a number 
 of other circumstances concurring and tending to its existence, and 
 these in their turn are equally dependent upon and connected with a 
 multitude of others. For the truth of this position, the common 
 experience of every man may be appealed to ; he may be asked, 
 whether he knows of any circumstance or event which has not fol- 
 lowed as the natural consequence of a number of others *tend- 
 •- -I ing to produce it, and which has not in its turn tended to the 
 existence of a train of dependent circumstances. Events the most 
 unexpected and unforeseen are so considered merely from ignorance 
 of the causes which were secretly at work to produce them ; could 
 the mechanical and moral causes which gave rise to them have been 
 seen and understood, the consequences themselves would not have 
 created surprise. 
 
 It is from attentive observation and experience of the mutual con- 
 nection between different facts and circumstances, that the force of 
 such presumptions is derived : for where it is known from experience 
 that a number of facts aad circumstances are necessarily, or are uni- 
 formly or usually connected with the fact in question, and such facts 
 and circumstances are known to exist, a presumption that the fact is 
 true arises, which is stronger or weaker as experience and observa- 
 tion show that its connection with the ascertained facts is constant, 
 or is more or less frequent. 
 
 The presumptions or inferences above alluded to are chiefly those 
 which are deducible by virtue of mere antecedent experience of the 
 ordinary connection between the known and the presumed facts;" 
 but circumstantial or presumptive evidence in general embraces a far 
 wider scope, and includes all evidence which is of an indirect nature, 
 
 in order to show tlie necessity of callinf^ in the iiid of the military to execute 
 proccHR, proof of acts of violence by the mob collected in another quarter, but 
 collected for the .same purpose as those about the plaintiff's house, is admis- 
 sible : Burddt v. Colman, H P^ast 183. 
 
 ■ See tit. CiRtUMSTANTIAl, KviUENCE.
 
 PRESUMPTIONS. 78 
 
 ■whether the presumption or inference be drawn by virtue of previous 
 experience of the connection between the known and the inferred 
 facts," or be a conclusion of reason from the circumstances of the par- 
 ticular case, or be the result of reason aided by experience. 
 
 From what has been said, it seems to follow that all the surround- 
 ing facts of a transaction, or as they are usually termed, the 7'es gestce, 
 may be submitted to a jury, provided they can be established by com- 
 petent means, sanctioned by the law, and afford any fair presumption 
 or inference *as to the question in dispute; for, as has already 
 been observed, so frequent is the failure of evidence, from '- -^ 
 accident or design, and so great is the temptation to the concealment 
 of truth and misrepresentation of facts, that no competent means of 
 ascertaining the truth can or ought to be neglected by Avhich an indi- 
 vidual would be governed, and on which he would act, with a view to 
 his own concerns in ordinary life. Let it be considered, then, frst, 
 what is the kind of evidence to which he would naturally resort ; and 
 in the next place, how far the law interferes to limit and restrain the 
 reception of such evidence ; remembering, at the same time, that all 
 artificial and purely conventional anodes of evidence form a subject for 
 future consideration. 
 
 Where an ordinary inquirer could not obtain information from any 
 witness of the fact which he was anxious to ascertain, either imme- 
 diately from such witness, or mediately through others, or where the 
 information which he had obtained Avas not satisfactory, his attention 
 would be directed to the circumstances which had a connection with 
 the transaction, as ascertained either by his own observation, or by 
 means of the information of others, to enable him to draw his own 
 conclusions ; and in pursuing such an inquiry, where it was a matter 
 of importance and interest, he would neglect no circumstances which 
 were in any way connected with the transaction, which could, either 
 singly or collectively, enable him to draw any reasonable inference on 
 the subject. All his experience of human conduct, of the motives by 
 which such conduct was likely to be influenced under particular cir- 
 cumstances, of the ordinary usages, habits and course of dealing among 
 particular classes of society, or in particular transactions, even his 
 scientific skill in medicine, surgery or chemistry, abstract probabilities 
 or natural philosophy, might be called into action, to enable him, by 
 a general and comprehensive view of all the circumstances, and their 
 
 *• See tit. Circumstantial Evidence ; Vol. II., tit. Presumptions, 3 Bhi. Comm. 
 371 ; Gilb. L. Ev. 160.
 
 79 INDIRECT EVIDENCE. 
 
 mutual relations to each other, to draw such a conclusion as reason, 
 aided by experience, would warrant. 
 
 *There is, in truth, no connection or relation, whether it be 
 
 r*801 • • 
 
 •- -I natural or artificial, which may not afford the means of infer- 
 ring a fact previously unknown, from one or others which are known. 
 
 Where the connection between facts is so constant and uniform that 
 from the existence of the one that of the other may be immediately 
 inferred, either with certainty, or with a greater or less degree of 
 probability, the inference is properly termed a presumption,P in con- 
 tradistinction to a conclusion derived from circumstances by the united 
 aid of experience and reason. 
 
 Circumstantial proof is supplied by evidence of circumstances, the 
 effect of which is to exclude any other supposition than that the fact 
 to be proved is true. 
 
 The nature and force of such proof will be more properly consid- 
 ered at another opportunity. The mere question at present is how 
 far the law interferes to limit and restrain the admission of evidence 
 of collateral circumstances tending to the proof of a disputed fact. 
 
 In the first place, as the very foundation of indirect proof is the 
 establishment of one or more other facts from which the inference 
 is sought to be made, the law requires that the latter should be estab- 
 lished by direct evidence, in the same manner as if they were the very 
 facts in issue. 
 
 The next question then is, what limit is there to the admission of 
 collateral evidence for the purpose of indirect proof. 
 
 *The nature of the evidence, and the principles by which 
 *- -' it is to be appreciated, are, as has already been observed, to a 
 great extent common to judicial and extrajudicial inquiries. Its force 
 and efficacy, in the one case as well as in the other, must necessarily 
 depend either on the known and ordinary connection between the 
 facts proved and the facts disputed, or on the force and tendency of 
 the facts proved to establish the truth of the disputed fact or issue by 
 excluding any other supposition. 
 
 ■* Such inferences are wholly independent of any actual knowled_2;e of the ne- 
 cessity of the connection between the known and unknown facts. Many of the 
 presumptions which we have to deal with, as connected with the present subject, 
 arc Ic^al presumptions, where the law itself establishes a connection or relation 
 between iiarticular facts or predicaments; as that the heir to a real estate was 
 seised, or tliat a Ijill of exchange was founded on a f^ood consideration. These, 
 howeviir, will be a sulyect for consideration when inquiry is made with respect 
 to the artificial effect annexed by the law to particular evidence ; for such pre- 
 sumptions are of an artificial and technical nature, whilst those at present con- 
 sidered arc merely natural.
 
 CIRCUMSTANTIAL EVIDENCE. 81 
 
 Great latitude is justly alloAved by the law to the reception of in- 
 direct or circumstantial evidence, the aid of which is constantly re- 
 quired, not merely for the purpose of remedying the want of direct 
 evidence, but of supplying an invaluable protection against imposi- 
 tion. The law interferes to exclude all evidence which fiills within 
 the description of "res inter alios acta;" the effect of which is, as 
 will presentl^^ be seen, to prevent a litigant party from being con- 
 cluded, or even affected, by the evidence, acts, conduct or declara- 
 tions of strangers. And this rule is to be regarded, to a great 
 extent at least, not so much as a limitation and restraint of the 
 natural effect of such collateral evidence, but as a restraint limited 
 by, and co-extensive with, the very principle by which the reception 
 of such evidence is warranted; for the ground of receiving such 
 evidence is the connection between the facts proved and the facts dis- 
 puted ; and there is no such general connection between the acts, con- 
 duct and declarations of strangers, as can afford a fair and reasonable 
 inference to be acted on generally even in the ordinary concerns of 
 life, still less can they supply such as ought to be relied on for the 
 purpose of judicial investigation. And therefore this extensive branch 
 of the rule which rejects the res inter alios acta, may be considered 
 as founded on principles of natural reason and justice, the same wntli 
 those which warrant the reception of indirect evidence. 
 
 In the first place, the mere declarations of strangers are inadmis- 
 sible, except in the instances already considered, *where on r^t^oQ-i 
 particular grounds, and under special and peculiar sanctions, 
 they are admissible as direct evidence of a fact. Declarations so cir- 
 cumstanced may be used either for the purpose of directly establish- 
 ing the principal fact in dispute, or for the purpose of proving the 
 existence of collateral facts from which the principal fact may be 
 inferred ; but other declarations, which are of too vague and suspi- 
 cious an origin to be received as evidence of the facts declared, must 
 also on the same principle, be rejected as indirect evidence. If such 
 declarations as to the principal fact be inadmissible, they must also 
 be at least equally inadmissible to establish any collateral fact, by 
 the aid of which the principal f;ict may be indirectly inferred. It 
 would be inconsistent to reject them when offered as direct testimony, 
 but to receive them as collateral evidence, the more especially as 
 even immediate testimony is in one sense but presumptive evidence 
 of the truth ; for it is on the presumption of human veracity con- 
 firmed by the usual legal tests, that credit is usually given to human 
 testimony.
 
 82 INDIRECT EVIDENCE. 
 
 If, for example, the question were whether A had waylaid and 
 wounded B, if the declaration of a third person, not examined on the 
 trial, that he saw the very fact, could not be received in evidence, 
 neither, on any consistent principle, could his declaration that he saw 
 A near the place, armed with a weapon, be received in ortler to 
 establish that fact as one of several constituting a body of circumstan- 
 tial evidence. For circumstantial proof rests wholly on the eifect of 
 established facts, and cannot, therefore, be properly founded wholly 
 or in part on mere declarations, which are of no intrinsic weight to 
 prove any facts.'' 
 
 Neither, in general, ought any inference or presumption to the 
 prejudice of a party to be drawn from the mere *acts or con- 
 •- -^ duct of a strancrer; for such acts and conduct are but in the 
 nature of declarations or admissions, frequently not so strong ; and 
 such declarations are inadmissible, for the reasons already stated. 
 An admission by a stranger cannot be received as evidence against 
 any party ; for it may have been made, not because the fact admitted 
 was true, but from motives and under circumstances entirely col- 
 lateral, or even collusively, and for the very purpose of being offered 
 in evidence. On a principle of good faith and mutual convenience, 
 a man's own acts are binding upon himself,'' and his acts, conduct 
 and declarations are evidence against him ; but it would not only be 
 highly inconvenient, but also manifestly unjust, that a man should 
 be bound by the acts of mere unauthorized strangers. But if a 
 party ought not to be bound by the acts of strangers, neither ought 
 their acts or conduct to be used as evidence against him for the pur- 
 pose of concluding him ; for this would be equally objectionable in 
 principle, and more dangerous in effect, than the other. It is true, 
 that in the course of the affairs of life a man may frequently place 
 reliance on inferences from the conduct of others. If, for instance, 
 A and B were each of them insurers against the same risk, A to a, 
 large, and B to a, small amount, it is very possible that, on a claim 
 made against each for loss, which was admitted and paid by A to the 
 extent of his liability, B, trusting to the knowledge and prudence of 
 A, might reasonably infer that the loss insured against had occurred, 
 and that he also was bound to pay his proportion. It is plain, how- 
 ever, that such an inference Avould rest on the special and peculiar 
 
 ■' TIiIh oliscrviitioii of course! does not extcml to any case where the mere fiict 
 of Bucli ii (loelarutioii having Ijiieii made is in itself material : any sucli deehira- 
 tion is of itself a faet. 
 
 ' See Vol. J I., tit. Admissions.
 
 ACTS OF STRANGERS. 83 
 
 circumstances of the case ; and that, so far from warranting the 
 general acimission of such evidence by inference on a legal trial to 
 ascertain the fact, it would supply no general rule, but must be re- 
 garded as an exception, even in the ordinary course of business.^ 
 
 *In addition to this, it is obvious that whilst an individual r^o^-i 
 might with discretion rely on the conduct of others, where, 
 under the peculiar circumstances, there was no reason for suspicion 
 (in which case a principle of self-interest would usually secure the 
 exercise of a sound discretion), such inferences could not be safely 
 left to a jury, wlio could not possibly be put in possession of all the 
 collateral reasons by which an individual might properly be influ- 
 enced in trusting to such evidence, and, which is more material, 
 could not act on those collateral circumstances of suspicion which 
 would have induced an individual to withhold his confidence. 
 
 An act done by another, from which any inference is to be drawn 
 as to bis knoAvledge of any bygone fact, is an acted declaration of 
 the fact, and is not in general evidence of the fact, because there is 
 no sufficient test for presuming either that he knew the fact, or that, 
 knowing the fact, his conduct was so governed by that knowledge as 
 to afford evidence of the fact which ought to be relied on. A man 
 may frequently act upon very uncertain evidence of a fact ; he may 
 have been deceived by others: and even where he has certain know 
 ledge, his conduct may frequently be governed by motives independ- 
 ent of the truth, or even in opposition to it. 
 
 Where a party professes to act on his knowledge of the truth of 
 a particular fact, so that his so acting is accompanied by, or is equiva- 
 lent to a direct or express declaration of the truth of that fact, the 
 
 1 Declarations of co-conspirators are admissible against each other : State v 
 Thibeau, 30 Vt. 100 ; Comm'th v. Ingraham, 7 Gray 46 ; Mask v. State, 32 Miss 
 405; Peck V. Yorks, 47 Barb. 131 ; People v. Pitcher, 15 Mich. 397; Mason v 
 State, 43 Ala. 532 ; Dart v. Walker, 3 Daly 138 ; Street v. State, 43 Miss. 1 
 Jacobs V. Shore)/, 48 N. II. 100; Ellis v. Dempsey, 4 W. Va. 126; Lincoln v 
 Claxlin, 7 Wall. 132; Jenne v. Joslpi, 41 Vt. 478 ; State v. Grady, 34 Conn. 118 
 Helser v. McGrath, 8 P. F. Smith 458 ; Bushnell v. City Bank, 20 La. Ann. 464 ; 
 State V. Daubut, 42 Mo. 239. In an action on the case for conspiracy, proof of 
 a division of the profits of the fraudulent action is sufficient evidence of combi- 
 nation in the first instance to render admissible the declarations of one con- 
 spirator against the rest: Kimmell v. Geeting, 2 Grant 125 ; M'Dowell v. Kissel, 
 1 Wright 164; Scott v. Baker, Ibid. 350. Even where a conspiracy has been 
 proved, the admission of one prisoner, made, not in the prosecution of the un- 
 dertaking, but after its completion, are not admissible against another : Lynes v. 
 State, 36 Miss. 617 ; State v. Ross, 29 Mo. 32 ; Clinton v. Estes, 20 Ark. 216 ; 
 Thompson v. Comm'th, 1 Mete. (Ken.) 13; Benford v. Sanner, 4 Wright 9.
 
 84 INDIRECT EVIDENCE. 
 
 question of admissibility falls under principles already considered. 
 A test is necessary to show, first, that he had competent knowledge 
 of the fact ; secondly, that he faithfully communicated Avhat he knew. 
 
 The rule, therefore, in the absence of special tests of truth, ope- 
 rates to the exclusion of all the acts or declarations or conduct of 
 others, as evidence to bind a party, either directly or by inference ; 
 and, in general, no declaration, or written entry, or even affidavit 
 made by a *stran2er is evidence against any man.' ^ Neither 
 L -J can any one be affected, still less concluded, by any evidence, 
 decree, or judgment, to which he was not actually or in consideration 
 of law privy. 
 
 As this is a rule which rests on the clearest principles of reason 
 and natural justice, it has ever been regarded as sacred and in- 
 violable. 
 
 The importance of the principle, and the extent of its operation, 
 make it desirable to ascertain its limits, by inquiring negatively what 
 it does not exclude. 
 
 In the first place, then, it is scarcely necessary to observe, that a 
 man's own acts, conduct and declarations, where voluntary, are always 
 admissible in evidence against him. As against himself, it is fair 
 to presume that his words and actions correspond with the truth : 
 it is his own fault if they do not. In many instances he is con- 
 clusively bound, more especially where he has formally engaged to 
 be so bound ; in others, his declarations or acts furnish mere inimd 
 facie presumptions against him. The rule, therefore, above adverted 
 to, never excludes evidence of any acts or declarations made either 
 by the party himself, or which he has authorized, or to which he has 
 assented.* 
 
 It is plain also that this principle does not exclude the operation 
 of any general rule of law or custom ; of these, and all their conse- 
 quences, he is bound to take notice at his peril. 
 
 It follows, therefore, that even the acts and declarations of others 
 
 • For illustrations of this general principle, vide infra, tit. DErosixiONS — 
 Judgments — Examinations. 
 
 ' Vol II., tit. Admissions. Spargo v. Brown, 9 B. & C. (17 E. C. L. R.) 935. 
 
 ■ Where the defendant, bcin;:; sued for debt, set up in defence, that by a new 
 contract witii liiin, the plaintifl' accepted a third person as his debtor in place of 
 the defen<lant, an indorsement of the amount of the debt, made without the 
 privity of the plaintiff, on a note held by the defendant af^ainst such third per- 
 son, Ih not admiHsiblc to prove such new contract, being res inter alios acta: 
 Jacobs V. rutnum, 4 Pick. 108. M.
 
 ACTS OF STRANGERS. 85 
 
 are not excluded by this principle, whenever they have any legal 
 operation which is material to the subject of inquiry ; for legal con- 
 sequences can no more be regarded as res inter alios than the law 
 itself. For instance, where the contest is as to the right to a per- 
 sonal chattel, evidence is admissible, even against an owner who 
 proves that he never sold the chattel, of a subsequent sale of the 
 property *in market overt; for although he was no party to 
 the transaction, which took place entirely between others, yet ^ J 
 as such a sale has a legal operation on the question at issue, the fact 
 is no more res inter alios acta than the law which gives effect to such 
 a sale. So in actions against a sheriff, it very frequently happens 
 that the law depends wholly on transactions to which the sheriff is 
 personally an entire stranger ; where the question is as to the right 
 of ownership to particular property, seized under an execution, all 
 such transactions and acts between others are admissible in evidence 
 which in point of law are material to decide the right of property. 
 So in all cases where any statute or law, or decree or judgment, is 
 of a public nature, or operates in rem; for to such proceedings all 
 are privy. 
 
 Nor does the objection ever apply where the conduct or declara- 
 tion of another operates not by way of admission or mere statement, 
 but as evidence. Thus, if A makes a private memorandum of a fact 
 in which B has an interest, that memorandum, generally speaking, 
 would not be evidence against B ; it would fall within the description 
 of res inter alios acta ; but if it were a memorandum of a fact pecu- 
 liarly within the knowledge of A, and made in the usual course of 
 business, or if ^, by that entry charged himself, it would be admis- 
 sible in evidence after the death of A ; not that it operates against 
 B by Avay of admission of the ftxct, for if so it would be admissible 
 whether A were living or dead, but because, under those circum- 
 stances, the law considers the entry to be a proper medium for 
 communicating the original fact to the jury, the testimony of A 
 himself being unattainable. 
 
 So the declarations of deceased persons, and evidence of reputa- 
 tion, in matters of public prescription, pedigree, and character, are 
 admissible, not because strangers have any power to conclude a 
 party by what they may choose wantonly to assert upon the subject, 
 but because the law considers the evidence to be sufficiently deserving 
 of credit, as a means of communicating the real fact, to be offered to 
 *a jury. And whenever that is the case, it is obvious that 
 such declarations or reputation are no more res inter alios '- ^
 
 87 INDIRECT EVIDENCE. 
 
 than if the declarants themselves had stated what they knew upon 
 oath to the jury. 
 
 In the next place, although the general principle above announced 
 excludes the declarations, writing, acts and conduct of strangers, as 
 falling within the general description of res inter alios actce, the ob- 
 jection does not extend to a class of declarations already described as 
 declarations accompanying an act ; for these, when the nature and 
 quality of the act are in question, are either to be regarded as part 
 of the act itself, or as the best and most proximate evidence of the 
 nature and quality of the act : their connection with the act either 
 sanctions them as direct evidence, or constitutes them indirect evidence, 
 from which the real motive of the actor may be duly estimated. 
 
 Hence it is that declarations, made by a trader at the time of 
 his departure from his residence or place of business, are evidence 
 of the intention with which he went. His real intention, in such a 
 case, cannot be inferred otherwise than from external appearances, 
 from his acts ; and his declarations are collateral indications of the 
 nature of his acts and his intention in doing them." Upon the same 
 principle, in Lord George Grordon's ease, the cries of the mob, at the 
 time they were committing acts of violence, were held to be admis- 
 sible evidence to show their intention.'' Such evidence is also 
 admissible in actions against the hundred, in case of an action 
 to recover the value of property feloniously demolished by persons 
 riotously assembled. Again, in order to prove that a husband had 
 obliged his wife to leave his house by ill-treatment, the declaration 
 of the wife at the time of leaving the house was held to be admissible 
 evidence against the husband to prove the fact. Here the fact itself 
 of leaving the house was material and admissible, and the declaration 
 accompanying the fact was collateral evidence *of the nature 
 L J of tbe act. The same principle applies, as will be seen, in 
 actions for criminal conversation. There the terms on which the plain- 
 tiff and his wife lived previous to the adultery, being material to the 
 inquiry, declarations by the wife in the absence of the husband, and 
 letters written by her, not only to him but even to third persons, are 
 admissible evidence to show the state of her mind and her affection 
 for him.' So, declarations by a patient^ to a medical attendant, as 
 
 "See tit. Uankiu-i't. =^2] Howell's St. Tr. 542. 
 
 'Per Loni Kilcnliurou^i;!!, Ea.st 188 ; .and see Vol. II., Criminal Conversa- 
 
 TIO.N. 
 
 *G East 188. It has boon truly observed, that representations made by a 
 party, as to his health and sensations, when made to a medical attendant, who
 
 DECLARATIONS OF STRANGERS. 88 
 
 to liis state of body and sufferings at the time, are evidence of the 
 
 fact, for in many cases they furnish the only means of ascertaining 
 
 that state, and tliey are, in reality, part of his examination ; but 
 
 declarations so made as to the independent fact of the cause or the 
 
 orio-in of that state are not admissible.* 
 
 It is, however, to be particularly observed, that in these ^ ^^^ 
 
 . . ... r 891 
 
 *cases, when declarations or entries'" are admitted in evidence '- '^-' 
 
 as part of the res gestce or transaction, they are admitted, either be- 
 cause they constitute the very fact which is the subject of inquiry,* 
 or because they elucidate the facts with which they are connected, 
 having been made without premeditation or artifice, and without a 
 view to the consequences ; and as such they are the best evidence — 
 it may be, better than even the subsequent testimony of the party 
 Avho made them — to prove the object for Avhich they are admitted in 
 evidence ; for the party who made the declaration, if he were com- 
 petent as a witness, would frequently be under a temptation to give 
 a false coloring to the circumstance when its tendency was known; 
 
 has the opportunity of observinij; whether they correspond with the symptoms 
 to which they refer, are entitled to i;;reater weight than such as are made to an 
 inexperienced person. Phillips on Evidence, 9th ed., vol. i., p. 190, citing the ob- 
 servations made by the Attorney-General (Copley), in the Gardiner Peerage Case. 
 In Aveson v. Lord Kinnaird, the rule is laid down as to patients without qualifi- 
 cation. The admissibility of such evidence is in principle confined to representa- 
 tions made as to the state of the party at the time of making the representation, 
 as contradistinguished from any statement of a particular fact occurring at any 
 antecedent time. In the Gardiner Peerage Case, p. 79-136, 170, where it became 
 material to inquire into the ordinary period of gestation, the medical witnesses 
 were not permitted to state what had been said by women whom they had 
 attended in their confinement, as to the date of their conception. 
 
 ^ Aveson Y. Lord Kinnaird, 6 East 188; Reg. \. Johnson, 2 Car. & K. (61 
 E. C. L. R.) 354; 2Mr Parke, B., Reg. v. Guttridge, 9 Car. & P. (38 E. C. L. R.) 
 472. In the case of Rex v. Foster, 6 Car. & P. (25 E. C. L. R.) 325, it was held 
 by Gurney, B., and Park, J., that a declaration by one since deceased, instantly 
 on receiving a fatal injury, as to the cause of the injury, was admissible. And 
 see further on this suVjject, Rex v. Megson, 9 C. & P. (38 E. C. L. R.) 420 ; Rex 
 V. Osborne, Car. & M. (41 E. C. L. R.) 622 ; Vol. III., Rape ; Entries by Third 
 Persons, post. 
 
 ^ In future, to avoid repetition, the term declaration alone will be used ; but 
 it must be remembered that the same principle applies to a written entry. 
 
 " See Kent v. Loioen, 1 Camp. C. 177. It is indeed only when the fact by 
 which the declaration is accompanied is material and relevant that the declara- 
 tion is admissible : see R. v. Bliss, 7 A. & E. (34 E. C. L. R.) 550 ; Doe d. Tat- 
 liam V. Wright, 7 A. & E. (34 E. C. L. R.) 313 ; 6 Nev. & M. (36 E. C. L. R.) 
 132; 4 Bing. N. C. (33 E. C. L. R.) 489; and 2 Nev. & P. 305. For further 
 illustrations of these principles, see tit. Entries by Third Persons.
 
 89 INDIRECT EVIDENCE. 
 
 besides, as in this case the effect of the evidence is independent of 
 the credit due to the party himself, it could be of no use to confirm 
 his credit by examination upon oath, and his declaration as a mere 
 fact is as capable of being proved by another witness as any other 
 fact is.^ 
 
 ' To be a part of the res gestce, the declarations must have been made at the 
 time of the act done which they are supposed to characterize, and calculated to 
 unfold the nature and quality of the facts they were intended to explain, and 
 so to harmonize with them as obviously to constitute one transaction : per 
 Hosmer, C. J., in Enos v. Tuftle, 3 Conn. 250; Carter v. Buchanan^ Kelly 513. 
 It is difBcult, however, to lay down any precise general rule as to the cases in 
 which declarations are admissible as a part of the res gestce; Allen v. Duncan, 
 11 Pick. 309 ; Pool V. Bridges, 4 Pick. 378. See 3 Cowen & Hill's Phillips 589, 
 note 452, for a very elaborate and extended examination of the American cases. 
 
 Where evidence of an act done by a party is admissible, his declarations, 
 made at the time, having a tendency to elucidate or give a character to the act, 
 and which may derive a degree of credit from the act itself, are also admissible : 
 Sessions v. Little, 9 N. H. 271 ; Russell v. Frishie, 19 Conn. 205; Elkins v. 
 Hamilton, 20 Vt. 627 ; Woods v. Bank, 14 N. H. 201. In an action against an 
 individual for enticing away the servant of another, evidence of the declarations 
 of the servant at the time he left, as to the motive which influenced him, are 
 admissible : Hadley v. Carter 8 N. H. 40. In a suit where the question of 
 domicil is raised, the declarations and letters of the party whose domicil is in 
 dispute are inadmissible, especially if made previous to the happening of the 
 event which gave rise to the suit : Thorndike v. Barton, 1 Mete. 242 ; Kilburn 
 V. Bennet, 3 Ibid. 199 ; Corinth v. Lincoln, 34 Me. 310. It is error to exclude 
 the declarations made by a person in explanation of the delivery of chattels, 
 when an inference unfavorable is sought to be drawn from the fact of delivery. 
 The declarations made at the time are a part of the transaction and proper to 
 be given in evidence : Yarhorougli v. Moss, 9 Ala. 382. Where a bank dis- 
 counted a note on condition that it should be indorsed by A, and A afterwards 
 indorsed the note, it was held in a suit against A on the note, that a declaration 
 made by the cashier to the directors of a bank in session when the note was 
 offered for discount, that A would indorse the note, upon which declaration the 
 note was discounted, was admissible : Mitcliellw Planters- Bank, 8 Humph. 216. 
 Declarations of a donor at the time of the delivery of slaves, that they were 
 delivered to the trustee, pursuant to the provisions of a deed, are admissible on 
 the same principle : Hale v. Stone, 14 Ala. 803. Where the acts of parties to a 
 transaction are evidence against the third persons, their declarations, if they 
 are inseparaljly connected with the acts so as to constitute a part of the res gestce, 
 are also admissible: liobertsonv. Smith, 18 Ala. 220. So declarations by parties 
 in possession of real or personal property in order to show the character of such 
 possession : Brazier v. Burt, 18 Ala. 201 ; Clealand v. Huey, 18 Ala. 343; Perry 
 V. Graham, Ibid. 822; Fontaine v. Burr, 19 lb. 722; Marry v. Stone, 8 Cush. 4. 
 To make dodaratioiis a part of the res gest<c, they must be contemporaneous 
 with the main fact; but in order to be contemporaneous they arc not recpiircd 
 to be precisely concurrent in point of time. If the declarations spring out of
 
 DECLARATIONS OF STRANGERS. 89 
 
 It sometimes liappens that a declaration is evidence for a particu- 
 lar purpose, although it is not to be taken as evidence to prove the 
 
 the transaction — if they elucidate it — if they are voluntary and spontaneous, 
 and if they are made at a time so near to it as reasonably to preclude the idea of 
 deliberate design, tliey are then to be reii;arded as contemporaneous: Mitckcson v. 
 State, 11 Ga. G15. The declarations of a party paying money, for the purpose 
 of showing the application or appropriation of the money paid, are admissible : 
 and when made at the time of payment, they become part of the res gestae: 
 Bank of Woodstock v. Clark, 25 Vt. 308. On the other hand, a holder of a 
 check went into a bank and when he came out said he had demanded its pay- 
 ment. This declaration was held inadmissible to prove a demand, as being no 
 part of the res yesta;. The demand was the fact to be proved : Brown v. Lusk, 
 4 Yerger 210. If the declaration of a person is in itself a fact in a transaction 
 or is made by him while doing an act and serves to explain it, it is to be received 
 in evidence : but a recital of past transactions is not admissible, although it may 
 have some relation to the act which the person may be doing when he makes 
 such declaration: Hayiies v. Ratter, 24 Pick. 242-, Busicell v. Davis, 10 N. H. 
 413. Where the plaintiff, for the purpose of showing the reason for a change 
 of his residence, offered in evidence his declarations, made before and after it 
 took place, not in the presence of the defendant, it was held that such declara- 
 tions were inadmissible : Ladd v. Able, 18 Conn. 513 ; Bradford v. Haggerthy, 1 L 
 Ala. 608 ; Smith v. Webb, 1 Barb. 230. To make the declarations of a party 
 evidence in his favor, as part of the res gestce, they must be connected with the. 
 material fact or inquiry involved in the issue : Tomkies v. Reynolds, 17 Ala. 109 ; 
 Plumer v. French, 2 Fost. 450. Before they can be received in evidence in his 
 own favor, as explanatory of his possession the fact of possession must be estab- 
 lished to the satisfation of the Court ; otherwise they would be made evidence 
 of the possession itself or the title rather than as explanatory of the nature of 
 the possession : Thomas v. Degraffenreid, 17 Ala. 602. The declaration of one 
 who is in possession of personal property, explanatory of his possession are 
 admissible ; but his declarations in regard to the contract by which he came 
 into possession are not admissible in his favor : Mims v. Sturdevant, 23 Ala. 
 664. The declarations of a party in possession of property explanatory of his 
 possession are admissible: Brice v. Lide, 30 Ala. 647: Fellows v. Fellows, 37 
 N. II. 75 ; Leger v. Doyle, 11 llich. (Law) 109 ; State v. Emory, 6 Jones (Law) 
 133 ; Ellis V. Janes, 10 Cal. 456 ; Yarboroiigh v. Arnold, 20 Ark. 592 ; Keener v. 
 Kavffman, 16 Md. 296 ; Taylor v. Lusk, 9 Iowa 444 ; Spencer v. Smith, 18 N. II. 
 587 ; Roebke v. Andretvs, 26 Wis. 311 ; Thomas v. Wheeler, 47 Mo. 363 ; Pier v. 
 DuJ", 13 P. F. Smith 59 ; Bell v. Woodward, 46 N. H. 315 ; Gibney v. Manhay, 
 34 N. Y. 301 ; Keater v. Dimmick, 46 Barb. 158 ; Arthur v. Gaylc, 38 Ala. 259; 
 Sharp V. Johnson, 22 Ark. 79 ; Vennum v. Thompson, 38 111. 143 ; Wallace v. 
 Wilcox, 27 Tex. 60. Declarations by the keeper of a dog, as to who was the 
 owner, are not admissible : Burns v. Fredericks, 37 Conn. 86. Declaration of 
 husband, not admissible, to affect his wife's title to property : Gillespie v. 
 Walker, 56 Barb. 185 ; Hanson v. Millett, 55 Me. 184. Acts and declarations 
 of wife when admissible against her husband : Goodrich v. Tracy, 43 Yt. 314. 
 Declarations of an occupant of laud, while in possession, that he was only a 
 tenant of another, are competent evidence in favor of the latter against a third
 
 89 INDIRECT EVIDENCE. 
 
 truth of tlie fact declared ; for tlie rule seems to be, that if the declar- 
 ation be evidence as a circumstance in the cause, for any purpose, it 
 is to be received; and the jurj are to be directed not to consider it 
 as evidence for other purposes, for which, abstractedly, it could 
 not have been received ;* as for instance, "where it is *used 
 
 r*9oi 
 
 ^ " -• as introductory to some other matter. Suppose the question 
 to be, Avhether A had wounded B, if C had asserted in the presence 
 of A that he had seen him wound B, this would be admissible evi- 
 
 ^ In the case of Vacher v. Cocks, M. & M. (22 E. C. L. R.) 353 ; Lord Tenterden 
 allowed that part only of the letter to be read which contained the refusal. See 
 further tit. Written Evidence ; and Willis v. Bernard, 8 Bin<f. (21 E. C. L. R.) 
 370 ; Whitehead v. Scott, 1 M. & Rob. 2 ; Whitaker v. Ba7ik of England, 6 C. 
 & P. (25 E. C. L. R.) 700. 
 
 person, after the death of the occupant, but not before : Currier v. Gale, 14 Gray 
 504. The declarations of a previous owner of land while owning it, as to its 
 boundaries, are evidence against one claiming under him : Cansler v. Fite, 5 
 Jones (Law) 424 ; Dawson v. Mills, 8 Cas. 302. The declarations of an ancestor, 
 while possessed of all the rights claimed through him are competent to be re- 
 ceived against the claim made by a party as his heir : Little v. Gibson, 39 N. H. 
 505 ; Graham v. Bushy, 34 Miss. 272. The declarations of the assignor, on an 
 issue of the honajides of an assignm.ent of a stock of goods, are competent evi- 
 dence, if the alleged assignor remained in possession of the goods up to and 
 after the time the declaration was made : Adams v. Davidson, 10 N. Y. 309. 
 When a vendor remains in actual possession of the goods after the sale, his 
 statements explanatory of such possession and of the relation which he then 
 holds to the property are admissible as original evidence and for the purpose 
 of showing fraud in the sale: Grant v. Lewis, 14 Wis. 418. The declarations 
 of a vendor after the sale, that the sale was a sham, are not admissible against 
 the vendee or his creditors: Wheeler v. McCorresten, 24 111. 40; Randegger v. 
 Ehrhardt, 51 111. 101 ; Pier v. Diijf, 13 P. F. Smith 59 ; Weinrick v. Porter, 47 
 Mo. 293 ; Caraicai/ v. Caraicay, 7 Cald. 245 ; Garraky v. Green, 32 Tex. 202 ; 
 Baker v. Haskell, 47 N. II. 479 ; Gates v. Motvry, 15 Gray 564; Outcalt v. Lud- 
 low, 3 Vroom 239 ; Cooke v. Cooke, 29 Md. 538 ; RoUnson v. Petzer, 3 W. Va. 
 335 ; Jones v. Morn, 36 Cal. 205 ; Ealmark v. Molin, 5 Cald. 482 ; Miner v. 
 Phillips, 42 111. 123 ; Boicer v. Earl, 18 Mich. 367 ; Pringle v Pringle, 19 P. F. 
 Smith 281; Bunker v. Green, 48 111. 243; nartman v. Diller, 12 P. F. Smith 
 37; Cornell v. Fain, 33 Ga. 219; Hubble v. Osborn, 31 Ind. 249; Vrooman v. 
 King, 36 N. Y. 477 ; Burroughs v. Jenkins, 1 Phill. (Eq.) 33 ; Howard v. Snel- 
 ling, 32 Ga. 195 ; Gill v. Strozier, 32 Ga. 088 ; Vrennon v. Smith, 3 Head 389 ; 
 Dunaway v. School Directors, 40 111. 247; Shaw v. Robertson, 12 Minn. 445; 
 Peck v. Crouse, 46 Barb. 151 ; Gregory v. Walker, 38 Ala. 26; Grooms v. Rust, 
 27 Tex. 231 ; Thu?npson v. Herring, Ibid. 282: Carleton v. Baldwin, Ibid. 572; 
 Sutter v. Lackmann, 39 Mo. 91 ; Hcssing v. McCloskaj, 37 III. 341 ; Garner v. 
 Bridges, 38 Ala. 276; McCleUan v. Cormocll, 2 Cald. 298. Declarations by 
 grantor, remaining in possession, are not admissible against his grantee: Car- 
 penter V. Carpenter, 8 Bush 283. Sec post, p. 467, note.
 
 COLLATEHAL EVIDENCE. 90 
 
 denco, but only as introductory, and for the purpose of introducing 
 and explaining ^'s conduct and behavior wben the charge was made, 
 and his answer upon that occasion, and not as having any intrinsic 
 tendency to prove the fact asserted. 
 
 In the next place, it is observable that the principle is confined to 
 tliosc cases Avhere an inference is attempted to be made from the acts, 
 conduct or declarations of strangers, on tlie presumption that tliey 
 would not have done such acts, or made such declarations, had not 
 the fact so to be'itiferred been true; and that it is the want of any 
 certain or known connection between such acts or declarations and 
 the truth of the fact Avhich occasions the exclusion. Hence it is 
 that the principle does not extend to the exclusion of any of Avhat 
 may be termed real or natural facts and circumstances in any way 
 connected with the transaction, and from Avhich any inference as to 
 the truth of the disputed fact can reasonably be made. Thus, upon 
 the trial of a p^risoner on a charge of homicide or burglary, all cir- 
 cumstances connected with the state of the body found, or house pil- 
 laged, the tracing by stains, marks or impressions, the finding of in- 
 struments of violence, or property, either on the spot or elsewhere, 
 in short, all visible vestigia, as part of the transaction, are admitted 
 in evidence for the purpose of connecting the prisoner with the act. 
 
 Such facts and circumstances have not improperly been termed 
 inanimate witnesses. It may be asked, whether the same principle 
 Avhich excludes all inferences from the acts, conduct and declara- 
 tions of others, ought not also to exclude such real circumstances ; 
 for an artful person may *not only deceive by speaking and 
 writing, but may also create false and deceptive appearances, '- -^ 
 calculated to induce others to draw false conclusions from them ; 
 he may act as well as speak a lie, and may deceive by false facts as 
 well as false expressions.® Ileal facts, that is, such as are the object 
 
 * An ancient and celebrated argument supplies an illustration. A young 
 man who was blind, a resident in his father's house, was charged by his step- 
 mother with having assassinated his father by stabbing him whilst he slept. 
 The evidence was circumstantial ; and one of the prominent facts urged against 
 the son was the circumstance that the walls of the apartments which separated 
 the chamber of the father from that of the son were smeared with the impres- 
 sions of bloody hands, proceeding fi-om the chamber of the father to that of the 
 son. With respect to such evidence, which according to the rules of our law 
 would be clearly admissible, it may be objected that such appearances may 
 have resulted from the art and cunning of another, for the very purpose of 
 implicating the accused ; and also it may be, as suggested in the case cited, for 
 the further purpose of screening the real perpetrator of the offence. 
 
 Since, then, it is possible that such appearances may be the result of fraud
 
 91 INDIRECT EVIDENCE. 
 
 of actual observation, in contradistinction to mere recitals of facts, 
 are in themselves always true, Avhilst a mere recital or statement may 
 be wholly false ; and although collateral circumstances, when con- 
 sidered without careful comparison, may, either in consequence of 
 contrivance and design, or even from accident, present appearances 
 which tend to false conclusions, that *tendency is always sub-- 
 ject to be corrected by a multitude of other facts which are ^ "'-^ 
 genuine. 
 
 The whole context of facts must be consistent with truth ; to 
 speak more properly, they constitute the truth ; if all were known, 
 nothing would be left for inquiry ; the greater the number known, 
 the more probable will it be that an artificial or spurious fact, from 
 inconsistency with the rest, will be detected, and the truth manifested. 
 This is the more evident, when it is considered that the practice of 
 creating false appearances must always be difficult, limited in its ex- 
 tent, and constantly subject to detection and exposure from a com- 
 parison of the deceptive fact with such as are undoubtedly genuine. 
 
 By way of illustration, the following instance may be selected : A 
 person having been robbed and murdered, the body is so placed by the 
 offender, with a discharged pistol beside it, as naturally to induce the 
 inference that the deceased had fallen by his own hand ; but on close 
 examination, it is discovered that the ball extracted from the body, 
 and which occasioned death, is too large to have been discharged from 
 that pistol, an inconsistency which immediately detects the imposture, 
 and refutes the false inference to which some of the circumstances 
 apparantly tend. 
 
 The general admission, therefore, of evidence of the actual visible 
 state of things, in the absence of any special reason for suspecting 
 fraud is quite consistent with the exclusion of statements or declara- 
 
 and artifice, ought they to be admitted? or, at least, are they not subject to the 
 same oljjection which is urj^ed against receiving evidence of the declarations or 
 writings of others? The answer seems to be, that although a possibility exists 
 that such appearances may have resulted from contrivance and design, yet that 
 much less danger is to be apprehended from the reception of such evidence of 
 actual facts than would result from receiving evidence of mere statements of 
 facts. 
 
 In the case above supposed, two circumstances tended to show that the traces 
 on tlic Willis wore the result of artifice and imposture. The accused being 
 blind, night to him was the same as the day, and being familiar with the apart- 
 ments, he wanted not the walls for liis guidance. The impressions on the walls 
 were all equally clear and distinct; had they been natural and genuine, they 
 would have gradually become faint and indistinct.
 
 ANCIENT INSTRUMENTS. 92 
 
 tions, as contradistinguished from real facts ; such statements may 
 be altogether fictitious ; they are easily invented, and would therefore 
 be the more dangerous, because if they were to be admitted to any 
 credit, they would usually be conclusive. At all events, there is a 
 strong practical necessity for resorting, especially in criminal pro- 
 ceedings, to the aid of circumstantial evidence; the conseciuences 
 would be infinitely mischievous if such evidence were to be excluded ; 
 and the real practical result from any suggestions as to the r*nq-| 
 *probability of fraud and deception being practised through 
 the medium of such evidence, is, that it ought in all cases to be re- 
 ceived and acted on in the highest degree of caution and circum- 
 spection. 
 
 As the possession and enjoyment of disputed property are always 
 indirect evidence of right, by reason of the obvious and natural pre- 
 sumption, when the right is in other respects doubtful, that such 
 possession and enjoyment so acquiesced in had a lawful origin ; so, 
 acts of open delivery of possession, or written instruments by which 
 a dominion over such property was exercised, and with which the 
 possession and enjoyment correspond, are also presumptive evidence 
 of right ; for these are, in fact, not mere recitals of a fact, but are of 
 themselves acts of dominion and ownership. Hence, when such in- 
 struments are so ancient that their connection with acts of enjoyment 
 and dominion cannot be proved by the testimony of living witnesses, 
 they are nevertheless admissible as the best and most proximate 
 evidence to explain the origin and nature of such possession and en- 
 joyment, Avhere they can by other evidence be sufficiently connected 
 with those facts. 
 
 Hence it seems that to support any presumption or inference from 
 such an instrument, first, its antiquity is essential; secondly, that it 
 should have been found in the place or repository in which a true or 
 genuine deed or writing of that kind would have been deposited ;^ 
 thirdly, that it should be free from all suspicion which may rebut the 
 presumption raised in its favor ;^ and, fourthly, in order to give it 
 any weight, it should be supported by proof of possession or enjoy- 
 ment, corresponding and consistent with it.'' Upon such a connection 
 the force, if not the admissibility, of such evidence essentially de- 
 pends. Declarations are, as has been seen, evidence as explanatory 
 of the act which they accompany ; and where long-continued enjoy- 
 
 ' Vide infra, Private Writings — Ancient Deeds. 
 8 Ibid. "^ Ibid.
 
 94 INDIRECT EVIDENCE. 
 
 ment, and user of a right have been *proved, extending as far 
 
 r*941 -r. • • ? 1 
 
 L -^ back as the duration of human life will permit, a deed or 
 
 writing which is consistent with such usage and enjoyment, and ex- 
 planatory of it, may, under the same principle, be fairly admitted, as 
 affording a presumption that it was a genuine instrument wliich has 
 been used and acted on. And where proof of the actual execution 
 and use of such instruments would have been evidence, then when 
 such proof is absolutely excluded by lapse of time, the production of 
 the deed, coupled with such circumstances as give it credit, appears 
 to be the next best evidence which the case admits of, and when 
 accompanied with proof of actual enjoyment, affords a strong pre- 
 sumption as to the existence of the right according to that deed. 
 Hence, ancient licenses on the court-rolls, granted by the lords of a 
 manor in consideration of certain rents, to fish in a particular river, 
 are evidence to prove a prescriptive right of fishery in that river, 
 without any proofs of the rents being formerly paid, where it appears 
 that such rents have been paid in modern times, or that the lords of 
 the manor have exercised other rights of ownership over the fishery.' 
 But it was held that to give any weight to such evidence, it was 
 necessary to support it by evidence of payments, or of acts of owner- 
 ship. "^ And where the question was, whether in a particular manor 
 a custom existed that, after the turbary had been cleared away from 
 a certain moss, the lord had a prescriptive right to hold the land 
 cleared, free from all right of common, it was held (in an action 
 between a grantee of the land and one Avho claimed common in the 
 loeus in quo, in respect of an ancient messuage) that counterparts of 
 old leases found among the muniments of the lord of the manor, by 
 which such cleared portions of the moss had from time to time been 
 granted by the lord, were admissible in evidence, although they w^ere 
 so old that no one could speak to possession under them. It was 
 
 *obiected, both at the trial and on a motion for a new trial, 
 
 r*951 o 
 
 L -• that such evidence ought not to be admitted without proof of 
 
 enjoyment under those leases. But the court held that it was clear 
 
 that such leases might be given in evidence ; they only showed the 
 
 existence of a fact, viz., that at the time of the dates of the leases the 
 
 lord granted the land after the moss had been taken away.^^ 
 
 ' Rogers and others v. Allen, cor. Heath, J., 1 Camp. 309. 
 
 ^ Per Heath, J., 1 Camp. 311. 
 
 ' Clarkson v. Woodhouse, 5 T. R. 412. 
 
 ' For a very full collection of the Amoricun authorities see note 903, 4 Cowen 
 & Iliir.s I>!iillipH 1310.
 
 EXPLANATORY DECLARATIONS. 95 
 
 It is to be observed that oral or written declarations, although ex- 
 cluded as direct evidence of a fact, bj the rules which govern the 
 reception of such evidence, may still in many instances be used in- 
 
 The English law upon this subject seems very generally adopted in the United 
 States, and ancient deeds accompanying possession are admitted in evidence 
 without further proof: Carroll v. Nnrivood, 1 liar. & John, 167 ; Sims v, 
 Deijraffcnrcicl, 4 McCord 253; Waldron v. Tuttle, 4 N. H. 371 ; Thompson y. 
 Bullock, 1 Bay 304 ; Thrusion v. 3fasterson, 9 Dana 228 ; Brown v. Witter, 10 
 Ohio 142; McClushj v. Leadbetter, 1 Kelly 551; Doe v. Eslava, 11 Ala. 1028; 
 Winston v. Gwathmey, 8 B. Mon. 19 ; Homer v. Cillcy, 14 N. H. 85 ; Troup v. 
 Hurlhut, 10 Barb. Sup. Ct. 527 ; Carter v. Chaudron, 21 Ala. 72. Ancient 
 records, when accompanied by an admission that they come from the proper 
 depository, are admissible in evidence without proof of their authenticity : 
 Little v. Downing, 37 N. 11. 355. The rule of evidence for ancient documents 
 is that they must have the appearance of due antiquity and of genuineness; they 
 must be procured from the proper custody, and be corroborated by such acts of 
 the parties as correspond with their tenor : Law v. Mumma, 7 Wright 267. There 
 must be no erasures or alterations: Roberts \. Stanton, 2 Munf. 129. The 
 antiquity alone of a deed apparently defective is not sufficient to justify the 
 presumption of its due execution : Williams v. Bass, 22 Vt. 352. 
 
 As to the nature and extent of the possession required, it has been decided 
 that where there was continued possession for six years, under a deed thirty 
 years old, which was recorded about the time it was executed, there having 
 been no possession inconsistent with the deed, it should be received : Robinson 
 V. Craig, 1 Hill (S. C.) 389. So where possession for five years was proved: 
 Wagner \. Acton, 1 Kice 100. In New York and some other of our sister states, 
 and perhaps in England, it seems to be settled that a deed appearing to be of 
 the age of thirty years may be given in evidence without proof of its execution, 
 either by showing an accompanying possession, or, when there has been none 
 such, rendering such an account of it as will afford a reasonable presumption 
 of its being genuine. It has been said by authority highly respectable, that 
 almost any evidence, intrinsically unobjectionable, and tending to raise a pre- 
 sumption of the fairness of the instrument, may be received, leaving its suf- 
 ficiency to depend on the nature of each particular case : Jackson, ex dem. Lewis, 
 V. Zarowey, 3 Johns. Cas. 283 ; Hewlett v. Cock, 7 Wend. 371 ; though it must 
 be confessed that in Pennsylvania the leaning of the determinations is in favor 
 of the more rigid rule which refuses to accept of anything short of actual pos- 
 session, as corroborative of the supposed deed. But where the issue litigated 
 involves the title of wild and uncultivated lands, which have never been the 
 subject of an actual pedis possessio, the question assumes a very different aspect. 
 In such cases the payment of taxes assessed upon the unseated land for a number 
 of years, is for many purposes, esteemed equivalent to actual possession : Per 
 Bell, J., in Williams v. Hillegras, 5 Barr 494. Proof that a deed of land is 
 more than thirty years old, without other circumstances, is no evidence of its 
 authenticity, especially when no possession has been taken under it, and the 
 land has been held adversely, although the deed is shown to have been in the 
 custody in which it would have been likely to be if genuine : Willson v. Belts, 
 4 Denio 201 ; Ridgeley v. Johnson, 11 Barb. Sup. Ct. 527.
 
 95 INDIRECT EVIDENCE. 
 
 directly as explanatory of other evidence. Thus, though a letter, 
 stating particular facts, could not be read in evidence merely because 
 it was sent, yet if the party to whom it was addressed wrote an 
 answer, such answer might be read as evidence against the party 
 who wrote it, and the letter to which it was an answer would be ad- 
 missible for the purpose of explaining such answer.^ 
 
 So letters and declarations, in themselves inadmissible, are admis- 
 sible if they communicate any fact to the party against whom they 
 are read which either affects the rights in question or explains his 
 subsequent conduct." Thus the proof of notice of the dishonor 
 of a bill of exchange to a drawer or indorser is evidence, not of the 
 fact of dishonor stated in the notice, but because such notice casts 
 a legal liability on the party to whom it was given. So again, in an 
 action on a policy of insurance, for a libel, keeping a mischievous 
 animal, malicious prosecution, and indeed in any other case where 
 the knowledge, motives, or intentions of the parties were material, 
 communications, whether oral or written, may be very important evi- 
 dence, though not of the truth of the facts communicated, yet for 
 
 " See further, as illustrative of this principle, Cotton v. James, M. & M. (22 
 E. C. L. R.) 273 ; Taylor v. Williams, 2 B. & Ad. (22 E. C. L. R.) 845. 
 
 ^ The defendant, having read a letter from the plaintiff's agent in answer to 
 a letter from himself, cannot give in evidence a copy of his own letter, without 
 proving it to be a true copy, by a witness : Smith v. Carrivgton, 4 Cranch 61. 
 A letter written by the plaintiffs to the defendants and received by them being 
 in answer to one by the defendants to the plaintiffs, vrhich had been read as 
 evidence in the cause, having been filed by the defendants and read by them on 
 a former trial, was held, under the circumstances, to be competent for the plain- 
 tiffs : Dowries v. Morrison, 2 Gratt. 250. A letter written by the plaintiff to the 
 defendant, relative to the subject-matter of the suit, although written after the 
 commencement of the suit and a reply thereto by the defendant, are together 
 admissible on the part of the plaintiff: Holler v. Weiner, 3 Harris 242. A party 
 to a suit cannot be permitted to read an unanswered letter from himself to the 
 adverse party, for the purpose of proving the truth of facts, stated therein, al- 
 though it was in reply to a letter to himself which he has put in evidence : 
 Fearing v. Kimball, 4 Allen 125. The omission of a party to reply to state- 
 ments in a letter about which he has knowledge, and which if not true he would 
 naturally deny, is evidence, but of a lighter character than silence when the 
 same facts are directly stated to him: Fenno v. Weston, 31 Vt. 345; Greenfield 
 Bank v. Crafts, 2 Alien 269. As to when letters are evidence, see Newton v. 
 Price, 41 Ga. 186 ; llusenstock v. Forney, 32 Md. 169 ; Stockham v. Stockham, Ibid. 
 106. A letter and the answer thereto are subject to the same rule as applies to 
 a conversation. If part is given in evidence by one party, the other party is 
 ciititlfd to have the wliolc produced : Livermore v. St. John, 4 Hob. 12 ; Mclntyre 
 v. ll'irris, II Miss. 81.
 
 EXPLANATORY DECLARATIONS. 95 
 
 judging as to the motives, intention and honesty of the party to 
 Avhom the communication was made. 
 
 *0f the class of facts which require proof by means of in- r:>:n('-| 
 direct evidence, there are some of so peculiar a nature that 
 juries cannot without other aid come to a direct conclusion on the 
 subject. In such instances, where the inference requires the judg- 
 ment of persons of peculiar skill and knowledge on the particular 
 subject, the testimony of such as to their opinion and judgment upon 
 the facts, is admissible evidence to enable the jury to come to a cor- 
 rect conclusion. Thus the relation between a particular injury in- 
 flicted on a man's body and the death of that man, is an inference 
 to be made by medical skill and experience, and may be proved by 
 one who possesses those qualifications. So again, where the ques- 
 tion is as to a general result from books or accounts of a voluminous 
 nature, the general result from them may be proved by the testi- 
 mony of one who has examined them." 
 
 ^ A practical surveyor, in testifying respecting marks on trees or piles of stones, 
 may express his opinion whether they were intended as monuments of bounda- 
 ries : Davis v. Mason, 4 Pick. 156. See also U. States v. Gibert, 2 Sumn. 93. G. 
 
 A land surveyor testified that he had run out the lines of lots surveyed by a 
 former surveyor, and was familiar with his mode of making corners, and then 
 testified to certain marks upon certain alleged corners, as having been made by 
 the former surveyor : Held, that his belief that the marks were those made by 
 the former surveyor was not evidence to be received by the jury as the opinion 
 of an expert, I)ut was merely the testimony of a witness to a fact Avithin his 
 knowledge, and was to be credited by the jury only so far as they believed him 
 able from his personal knowledge to identify the marks in question : Barrow v. 
 Cobleigh, 11 N. II. 557 ; Mcsser v. Beginniter, 32 Iowa 312. When the opinion 
 of an expert is offered in evidence, the court may hear evidence to ascertain 
 whether he is an expert, and then allow the opinion to be given to the jury: 
 Menclum v. Comm^th, 6 Rand. 704. This may be done either by examining the 
 witness himself or from the testimony of others: TulJis v. Kidd, 12 Ala. 648. 
 A witness cannot testify as to value until he has been shown to be competent to 
 speak upon the subject: Bank of Comm'th v. Mudgett, 44 N. Y. 514; Bedell v. 
 Long Island R. R. Co., 44 N. Y. 367 ; Swan v. Middlesex County, 101 Mass. 173 ; 
 Snyder v. Western Union R. R. Co., 25 Wis. 60 ; Browning v. Long Island R. R. 
 Co., 2 Daly 117 ; Brackett v. Edgerton, 14 Minn. 174; Allis v. Day, Ibid. 516. 
 Witnesses may testify to the market price of cattle derived from the newspapers : 
 Cleveland R. R. Co. v. Perkins, 17 Mich 296. A witness, who bases his calcu- 
 lations of the value of foreign money upon newspaper quotations of the value 
 of gold, is not competent as an expert to prove the value of such foreign money : 
 Schmidt v. Herfurth, 5 Rob. 124. The value of a living animal, as a stallion, 
 may be proved by witnesses to his reputation : Millan v. Davis, 66 N. C. 539. 
 AVhether two pieces of wood were parts of the same stick of natural growth is 
 a question for the testimony of experts: Comm'th v. Choate, 105 Mass. 451. An
 
 96 ARTIFICIAL EVIDENCE. 
 
 CHAPTER V. 
 
 ARTIFICIAL EVIDENCE. 
 
 Thus far the law controls the admission of ordinary evidence, by 
 the application of excluding tests ; it is next to be considered how 
 
 expert in Ijookkeeping cannot be asked whether the books of a person, when 
 solvency is in question, show that such person was insolvent : Persse Paper 
 Wo7-Jcs V. Willett, 1 Rob. 131. As a general rule the opinion of witnesses is not 
 to be received in evidence, merely because they may have had some experience 
 or greater opportunies of observation than others, unless they relate to matters 
 of skill or science: Robertson y. Stark, 15 N. H. 109; Lush v. McDaniel, 13 
 Ired. 485; McLean v. State, 16 Ala. 672; Luning v. State, 1 Chand. 178. 
 Opinion of a matter within common experience is not evidence : Gavish v. 
 Pacijic E. B. Co., 49 Mo. 274 ; Cannell v. Phoenix Ins. Co., 59 Me. 582 ; State 
 V. Pike, 49 N. H. 399 ; Messner v. People, 45 N. Y. 1 ; Sloan v. Neio York R. R. 
 Co., 45 N. Y. 125 ; McComhs v. N. C. R. R. Co., 67 N. C. 193. The opinion of 
 a witness is not admissible, except of a professional man in a matter depending 
 on science or skill in his particular art, or when it is necessary from the nature 
 of the inquiry, as for example as to the sanity of a person, but this must be 
 from personal observation of the part'cular case, unless the witness be a pro- 
 fessional man : Lester V. Pittsford, 7 Yt. 161; Doe v. Reagan, 5 Blackf. 217; 
 Milton V. Rowland, 11 Ala. 732. The opinions of medical men may be asked 
 upon supposed cases similar to the one before the court : State v.. Poicell, 2 
 Halst. 244 ; Lnnijig v. State, 1 Chand. 178 ; 77. S. v. McGlue, 1 Curtis C. C. 1. 
 And it is not confined to medical men. but extends to all other professions and 
 trades : Price v. Powell, 3 Comst. 322 ; Smith v. Gugerty, 4 Barb. Sup. Ct. 614 ; 
 Steamboat Cbpper y. Logan, 18 Ohio 375; State v. Cheek, 13 Ired. 114. A 
 dealer in produce is a competent witness in regard to the market value, at a 
 particular time, of an article in which he deals, though his knowledge of such 
 value at that time is derived from his correspondents in business : Laurent v. 
 Vaughn, 30 Vt. 90. Reports in newspapers of the state of the markets are 
 admissible: Sisson v. Cleveland R. R. Co., 14 Mich. 439. Engineers, well 
 diggers, farmers and gardeners are competent witnesses on a subject of drainage: 
 Bxiffum V. Harris, 5 R. I. 243. The testimony of lawyers as experts to the law 
 of another state : Wilson v. Carson, 12 Md. 54. Any practising physician is 
 competent to express an opinion as an expert on a medical question : Livingston' s 
 case, 14 Grat. 592. But see Comm. v. Rich, 14 Gray 335 ; Fairchild v. Bascomb, 
 35 Vt. 398 ; Emerson v. Lowell Gas lAght Co., 6 Alien 146 ; New Orleans Co. v. 
 Allbretton, 38 Miss. 242. A stock raiser is an expert who may testify to the 
 extent of an injury and damages received by cattle from falling through a 
 wharf: Polk v. Coffin, 9 Cal. 56. As to who are experts : Withee v. Roice, 45 
 Me. 571 ; Dickenson v. Fitchlnirg, 13 Gray 546 ; Bearss v. Copley, 10 N. Y. 93 ; 
 Van Deusen v. Young, 29 Barb. 9; Harris v. Panama Railroad Co., 3 Bosw. 7; 
 Bell v. Morrisctt, 6 Jones (Law) 178; Walker v. Fields, 28 Ga. 237; Montgomery 
 v. Gilmer, 33 Ala. 116; Jones v. Finch, Zl Miss. 461 ; Carry. Northern Liberties, 
 11 Cas. 324; Hyde v. Woolfolk, 1 Clarke 159; Page y. Parker, 40 N. II. 47;
 
 ARTIFICIAL EVIDENCE. 96 
 
 far the law interferes to create evidence, or to add to its eflScacy by 
 artificial means. 
 
 Blodgctt Co. V. Farmer, 41 Ibid. 398; Weaver v. Alabama Co. 35 Ala. 176; 
 Bellefontaine Railroad Co. \. Bailey., 11 Ohio (N. S.) 333; Seaver v. Boston 
 Railroad Co.^ 14 Gray 466 ; Crane v. Northfield, 33 Vt. 124; Beircc v. Slocking, 
 11 Gray 174; Dubois v. Baker, 40 Barb. 556; Boardmanv. Woodman, 47 N. H. 
 120; Whitney v. Boston, 98 Mass. 312; Kennedy v. People, 39 N. Y. 245; 
 Stuckey v. Bellant, 41 Ala. 700 ; Detroit R. R. Co. v. Van Steinburg, 17 Mich. 
 99 ; Doare v. Garretson, 24 Iowa 351 ; Noonan v. Noley, 22 Wis. 27 ; i/^i7^ v. 
 Portland R. R. Co., 55 Me. 438 ; Cavendish v. Troy, 41 Vt. 99 ; Davis \. Elliott, 
 15 Gray 90; Brotvn v. Hoburger, 52 Barb. 15; Cooke v. England, 27 Md. 14; 
 Dailey v. Grimes, 27 Md. 440 ; Woodward v. Gates, 38 Ga. 205 ; Macon R. R. 
 Co. V. Johnson, Ibid. 409 ; Ctor/c v. Willett, 35 Cal. 534 ; Graves v. Muses, 13 
 Minn. 335 : J'/mj/er v. Chesley, 55 Me. 393 ; DoZe v. Johnson, 50 N. H. 452 ; 
 Tenney v. A'ew? Jersey Steamboat Co., 5 Law 507; 12 Abb. Pr. N. S. ; Shelton v. 
 State, 34 Tex. 662; Eldredge v. Smith, 13 Allen 140; Lyman v. /S^a^e //is. Co., 
 14 Allen 329 ; Enright v. Sail Francisco R. R. Co., 33 Cal. 230 ; Norton v. 
 .1/bore, 3 Head 480 ; Moore v. State, 17 Ohio St. 521; 5en'^ v. Reed, 53 Me. 487; 
 Beakard v. Babcock, 2 Rob. 175 ; Schmidt v. Hepworth, 5 Rob. 124 ; Barnes v. 
 Ingalls, 39 Ala. 193 ; A'erji v. South St. Louis Ins. Co., 40 Mo. 19 ; Schmidt v. 
 Peoria Marine Ins. Co., 41 111. 295; Jf^esson v. Washburn Iron Co., 13 Allen 
 95 ; Jeffersonville R. R. Co. v. Lanhan, 27 Md. 171 ; Mowry v. Chase, 100 Mass. 
 79 ; i\"o;-<on v. C?-ee7i, 64 N. C. 64 ; State v. Ward, 39 Vt. 225 ; Kendall v. .l/a,y, 
 10 Allen 59 ; Robertson v. Knapp, 35 N. Y. 91 ; Pierson v. aoM^r, 47 Barb. 243 ; 
 Spiva V. Stapleton, 38 Ala. 171 ; CAeeA; v. State, Ibid. 227; CaZe6 v. State, 39 
 Miss. 721 ; Thompson v. Bertrand, 23 Ark. 730; P/ieZps v. 2bw?i, 14 Mich. 374; 
 Carroll v. Welch, 26 Tex. 147: Moulton v. McOwen, 103 Mass. 587; Smithy. 
 Kabbe, 59 Barb. 289 ; State v. Wilcox, 57 Barb. 604 ; Ardisco Oil Co. v. Gibson, 
 13 P. F. Smith 146; Sory v. First German Congregation, Ibid. 156; Z-aAre v. 
 Wilcox, 55 Barb. 615. 
 
 Neither professional nor unprofessional witnesses can give an opinion as to 
 mental capacity or condition without first showing the facts upon which the 
 opinion is founded : White v. Bailey, 10 Mich. 155. As to the testimony of 
 experts or non-experts on a question of sanity : Dunham's Appeal, 11 Conn. 
 192; Walker v. Walker, 34 Ala. 469 ; Deshon v. Merchants' Bank, 8 Bosw. 411. 
 The proper mode of inquiry to obtain the opinion of an expert upon the case 
 as shown by the proof, is to ask him what his opinion is upon a state of facta, 
 such as appears from the evidence, hypothetically stated: Spear v. Richardson, 
 37 N. H. 23 ; Woodbury v. Obear, 7 Gray 467 ; Champ v. Comm., 2 Mete. 
 (Ken.) 17 ; Perkins v. Concord Railroad, 44 N. H. 223. A physician is admis- 
 sible as an expert on a question of sanity, although he has not made diseases of 
 the mind a special study : State v. Reddick, 7 Kans. 143. So he may be 
 examined as to injuries done to the eye of a party by violence, although he 
 may not be a surgeon or an oculist : Castner v. Sliker, 33 N. J. (Law) 95, 507. 
 Whether a child was a full-time child may be testified to by any physician of 
 ordinary experience : Young v. Makepeace, 103 Mass. 50. Any witness, not an 
 expert, who knows the facts personally, may give an opinion in a matter 
 requiring skill, stating also the facts upon which he bases the opinion :
 
 96 ARTIFICIAL EVIDENCE. 
 
 It is essential, in the first place, that the law should provide the 
 means of preserving public statutes and ordinances, the decrees and 
 judgments of its Courts, and many other transactions of public in- 
 terest, and for authenticating them as such when it should become 
 necessary ; and it is also essential to the convenience of individuals 
 that the evidence of their mutual dealings and engagements should 
 not be left to depend on the defective memories of living witnesses, 
 
 Indianapolis v. K%iffer, 30 Ind. 235 ; Alabama R. R. Co. v. Burkett, 42 Ala. 83. 
 The opinion of a non-professional witness as to sanity is inadmissible : Real v. 
 People, 55 Barb. 551, 579; 8 Abb. Pr. N. S. 314; O'Brien v. Peojyle, 48 Barb. 
 275. As to non-professional witnesses on questions of sanity, see Real v. People, 
 42 N. Y. 270. A subscribing witness may give his opinion of the testator's 
 capacity without the facts upon which it is founded : Tetlow v. Tetlow, 4 P. F. 
 Smith 216; Elder v. Ogleton, 36 Ga. 64. It does not require an expert to prove 
 intoxication : Castner v. Sliker, 33 N. J. (Law) 95, 507. As to matters of 
 opinion by persons not experts, see Comm. v. Dorsey, 103 Mass. 412; Parsons y. 
 Manufacturers' Ins. Co., 82 Mass. 443 ; Taylor v. Grand Trunk R. R. Co., 38 N. 
 K. 304. A physician may be asked his opinion as to the cause of a disease, 
 but he must state the facts upon which his opinion is founded: Mattesonx. New 
 York R. R. Co., 62 Barb. 364. Medical experts are not allowed to testify 
 categorically on the merits of the cause, but only hypothetically : Fingley v. 
 Cowgill, 48 Mo. 291. An expert cannot undertake to determine what is shown 
 by the evidence, and upon that give an opinion : Phillips v. Starr, 26 Iowa 349 ; 
 Wright v. Hardy, 22 Wis. 348. Marble-masons cannot be called to prove the 
 meaning of a written contract to erect a monument : Sanford v. Rawlings, 43 
 111. 92. An expert may be asked upon a state of facts already established, or 
 upon an hypothetical case : Hoard v. Peck, 56 Barb. 202 ; Crawford v. Wolf 
 29 Iowa 567 ; State v. Klinger, 46 Mo. 224 ; Carpenter v. Blake, 2 Lans. 206 ; 
 Kempsey v. McGinniss, 21 Mich. 123. As to opinions of medical witnesses of 
 injuries, see Matteson v. Kew York R. R. Co., 35 N. Y. 487 ; Fort v. Brown, 46 
 Barb. 366. Proof of a foreign law may be made either by volumes of the 
 statutes received under the authorized reciprocal interchange of statutes, or by 
 competent parol evidence : De Rothschild v. United States, 6 Ct. of CI. 204 ; 
 Dauphin v. United States, Ibid. 221. In proof of the laws of a foreign country, 
 the testimony of any person, whether a professional lawyer or not, who appears 
 to the court to be well informed on the point, is competent: Hall v. Costella, 48 
 N. II. 176; Dauphin V. United States, 6 Ct. of CI. 221. The evidence of experts 
 is to be received with caution : Grigshy v. Clear Lake Water Ins. Co., 40 Cal. 
 396; sec post, ]K 175, note 1. 
 
 Exports may be examined as to questions of art or science peculiar to their 
 trade or profession, but not as to the construction of an instrument of writing: 
 Winmis v. New York & Erie R. R. Co., 21 How. (U. S.) 88. 
 
 Medical books even of received autliority are not competent evidence : Ash- 
 worth V. Kittridge, 12 Cush. 193 ; Harris v. Panama R. R. Co., 3 Bosw. 7 ; 
 Wade V. De Witt, 20 Tex. 398 ; Washburn v. Cuddihy, 8 Gray 430 ; Merkle v. 
 State, 1 Ala. Sel. Cas. 45. Youatt's Treatise on Horses is not evidence on a 
 question of soundness: Fmoler v. Lewis, 25 Tex. (Supp.) 380.
 
 RECORDS. 97 
 
 but should be preserved by the aid of written *memorials, r^g-T-i 
 mutually agreed upon for the purpose of perpetuating those 
 transactions. The law itself, therefore, provides authentic memorials 
 of judicial proceedings, and of many other matters of a public nature, 
 by means of its own officers specially delegated to the trust. "^ 
 
 Of this description are the rolls of Parliament, public registers, 
 and all records of Courts of justice ; and as these are made by minis- 
 ters or officers specially authorized by the law, for the very purpose 
 of perpetuating the facts which they contain, it is to be presumed 
 that they are true memorials, and they are admissible evidence of 
 those facts, though they are not sanctioned by the ordinary tests of 
 truth. And it may further be observed, that as these memorials re- 
 late for the most part to matters of public concern and notoriety, the 
 application of the ordinary tests is not so requisite as in ordinary 
 cases. On this principle, even books of history are admissible to 
 prove public and notorious historical facts. ^ 
 
 But though the law in such cases does not require the aid of the 
 ordinary tests of truth, yet in these, as well as in all other instances, 
 the res inter alios acta is always excluded. Many of the matters 
 which the law records by instruments of its own creation are of a 
 public nature, to which all may be considered privy ; as in the case of 
 public proclamations, acts of state, public registers of births and mar- 
 riages. In the case of judicial records, although in one sense they 
 
 •1 See tit. Judgment — Record. 
 
 ^ All evidence of this sort must be considered as mere hearsay ; and certainly, 
 as hearsay, it is of no very satisfactory character. Historical facts, of general 
 and public notoriety, may indeed be proved by reputation ; and that reputation 
 may be established by historical works of known character and accuracy. But 
 evidence of this sort is confined in a great measure to ancient facts, which do 
 not presuppose better evidence in existence ; and where, from the nature of the 
 transaction, or the remoteness of the period, or the public and general reception 
 of the facts, a just foundation is laid for general confidence. But the work of a 
 living author, who is within the reach of process of the court, can hardly be 
 deemed of this nature. He may be called as a witness. He may be examined 
 as to the sources and accuracy of his information ; and especially if the facta 
 which he relates are of a recent date, and may be fairly presumed to be within 
 the knowledge of many living persons, from whom he has derived his materials ; 
 there would seem to be cogent reasons to say, that his book was not, under such 
 circumstances, the best evidence within the reach of the parties : Morris v. Lessee 
 of Harmer's Heirs, 7 Pet. 558 — per Story J. The American State Papers pub- 
 lished by order of Congress are admissible : Nixon v. Porter, 34 Miss. 697 ; 
 Dutillet v. Blanchard, 14 La. Ann. 97 ; Doe v. Boe^ 13 Fla. 602. See ante, p. 
 49. note 2.
 
 97 ARTIFICIAL EVIDENCE. 
 
 are of public notoriety, and, therefore, although such a record is 
 always evidence of the mere fact that such a cause was litigated and 
 such a judgment given, whenever the mere fact is material, yet they 
 are not admissible evidence of the facts and rights decided by the 
 decree or judgment, where they are of a private nature, unless as 
 against one who was party or privy to the proceeding, nor usually, as 
 will be seen, even then, unless he who offers the evidence AA'as also a 
 r*qQi W^^J or privy ; in all *other cases the objection that the affair 
 was res inter alios acta must prevail/ ^ 
 As the law creates instruments for the purpose of evidence, so it 
 frequently annexes to them an artificial weight and consequence on 
 grounds of legal policy. Thus a record in a judicial proceeding is 
 in many instances not simply admissible evidence, but conclusive as 
 to the facts adjudged.^ ^ 
 
 ■■ See tit. Judgment. 
 
 ' See tit. Judgment — Record. 
 
 ^ A record, which cannot be used aj:;ainst parties to a suit on trial, because 
 some of them were not parties to the record, cannot be used for them : Chiles v. 
 Conleij, 2 Dana 21 ; Hurst v. McNeil, 1 AVash. C. C. Rep. 70; Davis v. Wood, 1 
 Wheat. 6. A judgment, not conclusive against a party, is not conclusive in his 
 favor : Southgate v. Montgomery, 1 Paige Ch. R. 4] ; Morris v. Lucas, 8 Blackf. 9. 
 
 A statement in a record of a foreign judgment that a party appeared by 
 attorney is prima facie evidence of that fact and of his authority : Capting v. 
 Hernan, 17 Mich. 524. A decree between the parties thereto is evidence of the 
 recitals therein, and when relied on as a link in a chain of evidence is to be con- 
 sidered as though it were a deed : Doe v. Boe, 36 Ga. 66. The entire record in 
 a former case is admissible in evidence when the action involves proof of the 
 judgment in that cause : Smith v. Smith, 22 Iowa 516. A part of a record is 
 improperly admitted in evidence wlien the whole is not produced : Carrick v. 
 Armstrong, 2 Cald. 265. The verdict of the jury in another action is not ad- 
 missible to show that the matter has been decided : McReady v. Rogers, 1 Neb. 
 124. As to judgments in the Confederate States during the civil war, see Penny- 
 wit V. Kellogg, 1 Cine. 17 ; Steere v. Tenney, 50 N. H. 461. 
 
 When the judgment of a court of law, or decree of a court of chancery, forms 
 a link in a chain of title, the fact of the existence of such judgment or decree 
 may be shown by the record, in controversies with third persons as well as be- 
 tween the parties : Den v. Hamilton, 7 Ilals. 109 ; Turpin v. Brannon, 3 McCord 
 2G1. Where the maker of a note has been prosecuted to insolvency, the record 
 of the suit may be given in evidence against indorsers where, by the local law, 
 it is necessary to prove due dilligence in order to charge them : Lane v. Clark, 
 1 Mo. 057. A judgment between others is evidence of the fact of its having 
 been rendered, and competent when that fact is material : Head v. McDonald, 7 
 Monr. 203; Ansley v. Carlos, 9 Ala. 973 ; Kitig v. Chase, 15 N. II. 9 ; Fletcher 
 V. Jackson, 23 Vt. 581 ; Harrison v. Harrison, 39 Ala. 489. 
 
 ' To make a record, in a former suit, conclusive evidence on any point, it 
 should appear, from the record, that such a point was in issue. And evidence
 
 PRESUMPTIONS. 98 
 
 It is, however, very clear, that the previous verdict of a jury is not 
 only inconclusive, but that in its own nature it cannot possibly be con- 
 clusive as to the truth of a fact which it professes to ascertain, where 
 that fact is again disputed. It is possible that the former jury may 
 not have been supplied with sufficient evidence to enable them to come 
 to a correct conclusion, or that they may have fallen into error, or even 
 that they may have been swayed by indirect motives. But the law, 
 on a strong principle of policy and convenience, and in order to ex- 
 clude continual litigation, frequently annexes an artificial conclusive 
 effect to a former verdict. 
 
 almnde is not admissible to show that a matter not in issue on the record was 
 taken into consideretion by the jury : Manny v. Harris, 2 Johns. 24. A decree 
 in chancery is conclusive, in a suit at law between the same p.arties, of such 
 facts as were directly in issue in the bill, and which were necessary to uphold 
 it: Cuit V. Tracy, 8 Conn. 2G8 ; Pleasants v. Clements, 2 Leigh 474; Pierson v. 
 Catlin, 18 Vt. 77. A judgment on the merits, in a personal action, is a bar to 
 another action on the same claim and between the same parties, though the 
 forms of the two actions be not the same : Lawrence v. Vernon, 3 Sumn. 20. A 
 verdict, in an action of detinue, against the plaintiflf", on the plea of non detinet, 
 is not sufficient evidence in another suit to show that the plaintiif had not title 
 to the thing demanded. If, in such case, parol evidence can be introduced to 
 show the grounds on which the verdict was given, this evidence must prove con- 
 clusively that the jury could have found their verdict upon no other ground than 
 want of title in the plaintiff: Long v. Bangas, 2 Ired. 290. In an action of tres- 
 pass quare clausum fregit, the defendant pleaded the general issue, and filed a 
 notice that he claimed and should give evidence of title to the locus in quo. The 
 jury found the defendant guilty, assessed damages, and also found that the de- 
 fendant had no title to the land described in the plaintiff's declaration ; and 
 judgment was rendered for the plaintiff. It was held that this judgment was 
 not conclusive proof of the plaintiff's right of property in said land, nor of his 
 title to maintain a writ of entry to recover the land from the defendant in that 
 action : Wade v. Lindsay, 6 Mete. 407. See Darlington v. Gray, 5 Whart. 487 ; 
 Piper V. Richardson, 9 Mete. 155 ; Dukes v. Broughton, 2 Speers 620. In cove- 
 nant for instalments of money, a former recovery between the same parties, on 
 the same instrument, is not a bar where breaches for the instalments demanded 
 in the latter action were not specifically assigned in the former suit ; and evidence 
 is admissible to show that the instalments now demanded had not fallen due, 
 and were not included in the former recovery. It would be otherwise where the 
 former claim was entire and for a sum of money in solido : Sterner v. Gower, 3 
 W. & S. 136. Upon the general subject of the conclusiveness of judgments, see 
 Gates V. Goreham, 5 Vt. 317 ; Shafer v. Stonebreaker, 4 Gill & Johns. 345 ; Gard- 
 ner V. Buckbee, 3 Cow. 120 ; Ribshaum v. Didlebum, 4 Watts 183 ; Eobinson v. 
 Croivninshield, 1 N. H. 76 ; Livermore v. Herschell, 3 Pick. 33 ; White v. Phil- 
 brick, 5 Greenl. 147 ; Boynton v. Willard, 10 Pick. 166 ; Marsh v. Pier, 4 Rawle 
 273 ; Burnham v. Webster, 1 Woodb. & Min. 172 ; Pinney v. Barnes, 17 Conn. 
 420.
 
 98 ARTIFICIAL EVIDENCE. 
 
 Again, where formal instruments are prescribed or adopted by con- 
 vention, for the purpose of manifesting and perpetuating the acts and 
 transactions of private individuals, the law interferes not only in pre- 
 scribing the manner and form, but also in giving an artificial effect to 
 such instruments. 
 
 The ordinary instances in which the law prescribes the form and 
 manner in which private persons shall express their acts and inten- 
 tions, and record their engagements, are, in cases of wills of real 
 property, grants of incorporeal rights, which must be evidenced by a 
 specialty, and agreements, which in many instances prescribed by the 
 Statute of Frauds' must be evidenced by some written memorandum 
 of the transaction. In these and other instances where the law pre- 
 r^QQ-i scribes the form, the evidences of the fact *must of course con- 
 sist in proof that the legal requisites have been complied with 
 in the particular instance. 
 
 The admissibility of such conventional means of perpetuating the 
 transactions between individuals, falls for the most part within the 
 ordinary and natural rules of evidence. They are, in effect, formal 
 admissions by the parties who make them, and as against themselves 
 are therefore admissible. The admission of such evidence is quite 
 consistent with the general rule which excludes all that is res inter 
 alios acta ; such evidence ■would therefore be admissible independently 
 of any artificial rule of law, but when admitted, the law frequently 
 annexes an artificial efficacy which such evidence would not otherwise 
 possess." 
 
 The law not only in many instances prescribes the manner and form 
 of the instrument by which such acts and intentions shall be signified, 
 but frequently annexes an artificial and arbitrary effect to the evi- 
 dence. Thus the law provides that a specialty, such as a bond, shall 
 carry with it intrinsic and conclusive evidence that it was founded on 
 a good and sufficient consideration, without any other proof; that a 
 bill of exchange shall afford, not conclusive, hnt prima facie evidence 
 of consideration ; whilst in other cases of mere parol engagements a 
 consideration will not be presumed, but to give them effect must usually 
 be alleged and proved. 
 
 The doctrine of estoppels by deed affords another prominent 
 instance of the law's interference to annex an artificial effect to par- 
 ticular evidence. It is a general rule of law that a man shall be 
 estopped or excluded from the averment or proof of that which is 
 
 * See tit. Frauds, Statute of. 
 
 " See tit. Bond — Deed — Bill of Exchange.
 
 ESTOPPEL. 99 
 
 contrary to his admission by deed ;" ^ but he is not estopped in the 
 strict legal *sense of the term by a mere oral admission, r^-iAn-i 
 or even a written one not under seal. Independently of an 
 artificial rule, there is no reason why a man should be estopped or 
 excluded from asserting the truth in one case and not in the other. 
 So also there are numerous instances where, on a just and equitable 
 principle, the courts hold a man to be concluded by his own conduct 
 and representation of a fact, although contrary to the truth. Thus 
 where a person assents to an act and derives and enjoys a title under 
 it he cannot impeach it,^ and so if a man induces a tradesman to 
 supply a woman with goods by a representation that she is his wife, 
 
 ' See tit. Deed. Botwer v. Wilkinson, 5 B. & Aid. (7 E. C. L. R.) GS2. 
 
 The rule that a party is estopped by his deed, does not preclude a party from 
 asserting that the transaction was contrary to law, or void on the ground of 
 fraud, and for this purpose giving evidence to contradict the statements contained 
 in the deed ; Fairtiile, ex dem. Mytton, v. Gilbert, 2 T. R. 169 ; Collins v. Blantern, 
 2 Wils. 341 ; 1 Smith's Lead. Cas. 154, et notce ; Doe dem. Chandler v. Ford, 3 
 Ad. & E. (30 E. C. L. R.) 649 ; Doe dem. Williams v. Lloyd, 5 Ring. N. C. (35 E. 
 C. L. R.) 741 ; Hai/ne v. Maltby, 3 T. R. 438 ; Chanter v. Leese, 4 M. & W. 295. 
 
 y Rex V. Stacy, 1 T. R. 4. Where a copyholder has been admitted to a tene- 
 ment, and done fealty to a lord of a manor, he is estopped, in an action by the 
 lord for a forfeiture, from showing that the legal estate was not in the lord at the 
 time of admittance: Doe dem. Nepean v. Bedden, 5 B. & Aid. (7 E. C. L. R.) 
 626. 
 
 1 Stoiv v. Wyse, 7 Conn. 214 ; Wilkinson v. Scott, 17 Mass. 249 ; McDonald v. 
 King, Coxe 432. One who conveys land without having a title, is estopped from 
 claiming it, if he after acquires a title : Mc Williams v. Nisly, 2 S. & R. 507; 
 Brown v. McCormick, 6 AVatts 60; Somes v. Skinner, 3 Pick. 52. One holding 
 a vested interest and a contingent interest in land, and conveying by deed with 
 warranty "his right, title and interest" therein, passes his vested interest only 
 by the deed, and is not estopped thereby to claim his contingent interest when 
 it becomes vested: Blanchard v. Brooks, 12 Pick. 47. The guardian of a person 
 non compos, sold certain real estate belonging to his ward under a license of 
 court, and conveyed the same with a covenant that he was duly authorized to 
 sell the granted premises ; it was held that the guardian was estopped by such 
 covenant, from setting up a claim to any portion of such real estate, under a 
 previous conveyance to him in his own right : Heard v. Hall, 16 Pick. 457 ; but 
 see Comsiock v. Smith, 13 Pick. 116; Allen v. Sayward, 5 Greenl. 227. The 
 estoppel in general extends to all the facts recited in the deed, — but an excep- 
 tion has been allowed as to the recital of the amount of consideration and the 
 fact of its payment; Wilkinson v. Scott, 17 Mass. 249; Davenport v. Mason, 15 
 Mass. 85 ; Schillinger v. McCann, 6 Greenl. 364 ; Buffum v. Green, 5 N. H. 71 ; 
 Taggart v. Stanherry, 2 M'Lean 543 ; Korris v. Norris, 9 Dana 317 ; Dyer v. 
 Rich, 1 Mete. 180.
 
 100 ARTIFICIAL EVIDENCE. 
 
 he will be concluded bj that representation, and will not afterwards be 
 admitted to show that she was not his wife/^ 
 
 In the next place, the law interferes by annexing to particular 
 classes of evidence artificial presumptions, as contradistinguished 
 from the natural inferences and presumptions which a jury would 
 have made by virtue of their own knowledge and experience. Such 
 presumptions are not rules for arriving at the simple truth ; on the 
 contrary, they are frequently used for the very purpose of excluding 
 the truth on grounds of special legal policy. Their object is to annex 
 particular consequences to certain defined predicaments ; in fact, 
 therefore, they are in their operation mere rules of law.^ 
 
 Such artificial presumptions are of two kinds ; first, those 
 r*10n *^^'l^ich are made by the law, that is, by the courts which ad- 
 minister the law, without the aid of a jury ; secondly, such 
 as cannot be made but by the aid of a jury. The former again con- 
 sist of conclusive presumptions, which, like the presumptions, juris et 
 de jure of the civil law, admit of no proof to the contrary, or are 
 simply prcesumptiones juris, which may be rebutted in fact, or by 
 
 ^ See Vol. II., tit. Admissions, and with respect to this principle see further 
 Pickard v. Sears, 6 Ad. & E. (33 E. C. L. R.) 469 ; Freeman v. Cooke, 2 Exch. 
 654. 
 
 ^ Chapman v. Searle, 3 Pick. 35 ; Rice v. Bixler, 1 W. & S. 445 ; Crockett v. 
 Lashhrook, 5 Monr. 530. Declaring a note to be "frood" to one about to pur- 
 chase it, or standing by in silence when it is transferred for consideration, is 
 an estoppel in pais against a debtor : Watson v. McLaren, 19 Wend. 557 ; Petrie 
 V. Feeter, 21 Wend. 172 ; Davis v. Thomas, 5 Leigh. 1. A pei-son is always 
 estopped from denying the truth of a fact, upon the faith of which he has 
 suflfered another person to act, knowing at the time that the other's conduct was 
 materially influenced by a reliance upon the truth of such fact : Hicks v. Cram, 
 17Vt. 449; Banky. Wollaston, ^ Harring. 90; Rangeley v. Spring. 5 Shepl. 
 130. If a party having knowledge that he has a title to property stands by and 
 sees another mortgage it to a third person, to secure a debt or liability incurred 
 at the time, without giving notice of his title, he is estopped from setting it up 
 afterwards in a suit at law against the mortgagee: Thompson \. Sanborn, 11 
 N. H. 201. If A, having title to land, stiyids by and encourages a sale to B, he 
 is estopped, however, only when he conceals an outstanding title not equally 
 known to both parties : Parker v. Barker, 2 Mete. 423 ; see McKelvy v. Truhy, 4 
 W. & S. 323. 
 
 ^ Not only convenience, but necessity calls for a definite rule to produce cer- 
 tainty of result in the determination of facts which must be passed upon with- 
 out proof; and such can only be o])tained from the doctrine of presumption, 
 which, however arbitrary, is indispensable, and when founded in the ordinary 
 course of events, productive of results which usually accord with the truth: Per 
 Gibson, C. J., Burr v. Sims, 4 Whart. 170. G.
 
 ESTOrPELS. 101 
 
 some other presumption raised by the facts. Thus a deed under seal, 
 where the execution of the instrument stands unimpeached, affords 
 conclusive evidence of consideration.* 
 
 But although the law will presume or intend, on proof of a fine, 
 that it was levied with proclamations, or that the heir-at-law of one 
 who died seised of an estate was in possession of that estate, yet these 
 are but prima facie presumptions which may be repelled by actual 
 proof to the contrary. 
 
 Other presumptions, again, which may be termed presumptions in 
 law and fact, are those which are recognised and Avarranted by law 
 as the proper inferences to be made by juries under particular cir- 
 cumstances ; these, it will be seen, are founded on principles of 
 policy and convenience, and not unfrequently on an analogy to ex- 
 press rules of law. Thus, a jury would have been warranted in pre- 
 suming, and even directed to presume a right, from evidence of an 
 adverse and uninterrupted enjoyment of lands for twenty years, in 
 analogy to the provisions of stat. 21 Jac. I., c. 16 ; although, if the 
 jury did not infer the right from such evidence, the court could not 
 have done it. 
 
 * Vol. II., tit. Presumptions.
 
 PART II. 
 
 OF THE INSTRUMENTS OF EVIDENCE. 
 
 Having thus considered generally the principles which regulate 
 the admission of evidence, we are next to consider what are the 
 means and instruments of evidence ; how are they to be procured and 
 used ; their admissibility and effect. These are, first, oral witnesses, 
 examined vivd voce in court as to facts within their own knowledge, 
 and in some particular instances, as to what they have heard ; and, 
 secondly, written evidence. 
 
 CHAPTER I. 
 ORAL EVIDENCE. 
 
 And first, as to oral witnesses. Oral testimony, it is to be re- 
 marked, in natural order precedes written evidence. It is in general 
 more proximate to the fact than written evidence, being a direct 
 communication by one who possesses actual knowledge of the fact by 
 his senses ; Avhilst written evidence in itself requires proof, and 
 must ultimately be derived from the same source with oral evidence, 
 that is, from those who possessed actual knowledge of the facts. 
 Under this head may be considered, 
 
 1st. The mode of enforcing the attendance of a witness in civil 
 and criminal cases, and his production of writings in 
 his possession. The incidents to his attendance and de- 
 fault. 
 *2dly. Objections in exclusion of his testimony. 
 L '^■^ 3dly. The mode of examination in chief; cross-exami- 
 
 nation, and re-examination. 
 4thly. The mode of rebutting his testimony. 
 5thly. The mode of confirming his testimony.
 
 ORAL EVIDENCE. 103 
 
 I. The mode of enforcing the attendance of a witness in civil and 
 criminal cases, and also of enforcing his production of ivritings in 
 his possession, and the incidents to his attendance or default. 
 
 His attendance upon the trial is enforced by subpoena or habeas 
 corpus, in civil as well as in criminal cases, and also in the latter by 
 means of his recognizance. 
 
 The attendance of a witness in civil cases is compelled (where the 
 witness is notin custody) by means of a subpoena, which is a judicial 
 writ, commanding the witness to appear at the trial to testify for the 
 plaintiff or defendant, under pain of forfeiting ,£100 in case of dis- 
 obedience. '^ It is, however, requisite, in civil cases, to tender to the 
 witness his reasonable expenses, not only of going to attend the trial, 
 but also of his return ; for though he may refuse to be sworn till such 
 expenses be paid, the party may not choose to call him, and he may 
 find it difficult to get home again. ** 
 
 If a witness wilfully neglect to attend upon the subpoena, he is . 
 guilty of a contempt of court, for which he is liable to an attachment.*^ 
 He is also liable to darhages at common law, in an action on the case 
 by the party injured ;'^ *and lastly, by the stat. 5 Eliz. c. r:iciAi-| 
 9, s. 12, he shall forfeit for such offence £10, and yield such 
 further recompense to the party grieved as, by the discretion of the 
 court out of which the process shall issue, shall be awarded. '^ The 
 most usual mode of proceeding is by attachment, in which case an 
 affidavit of personal service is necessary, and of the payment or ten- 
 der of reasonable expenses.^ 
 
 Where the witness is in custody, his testimony is obtained by 
 means of a habeas corpus ad testifica7idum, which was grantable at 
 the discretion of the courts at common law :^ and by the stat. 44 
 Geo. III., c. 102, any judge of the superior courts, in England or 
 
 * See the form, Tidd's Forms 283. For practice as to the form, service and 
 remedies for disobedience of a subpoena, and also the tender of expenses to wit- 
 nesses, see Vol. III., tit. Witness. 
 
 »> Chapman v. Pointon, 2 Str. 1150 ; Fuller v. Prentice, 1 II. B. 9 ; Ilallett v. 
 Mears, 13 East 15 ; Ex parte Roscoe, 1 Meriv. 189. The obligation depends on 
 the stat. 5 Eliz. c. 9. 
 
 <= 1 Str. 510; 2 Str. 810, 1054, 1150 ; Cowp. 3SG ; Doug. 561. 
 
 ^ Doug. 561 ; Needham v. Fraser, 1 C. B. (50 E. C. L. R.) 815. 
 
 * Cro. Car. 522, 540 ; Goodwin v. West, Jon. 430 ; 5 Mod. 355. 
 
 f Chapman v. Pointon, 2 Str. 1150; Garden y. Cresswell, 2 M. & W. 319 -, 
 Fuller V. Prentice, 1 H. B. 49 ; Home v. Smith, 6 Taunt. (1 E. C. L. R.) 9. 
 
 8 See Tidd's Prac. 9th ed. 809 ; Ex parte Tillotson, 1 Stark. C. (2 E. C. L. R.) 
 470; and see the form and course of proceeding, Vol. III., tit. Witness.
 
 104 ORAL EVIDENCE. 
 
 Ireland, may award a writ or writs of habeas corpus for bringing up 
 an J prisoner or prisoners detained in ani/ gaol or prison, before any 
 of the said courts, or any sitting of Nisi Prius, or before any otber 
 court of record in those parts of the United Kingdom, to be examined 
 as a witness in any cause or matter, civil or criminal, depending or to 
 be inquired into or determined in any of those courts.'' ^ And every 
 justice of the county palatine of Chester has by the same statute, 
 similar authority within the limits of his jurisdiction. 
 P^-|Qr-i A lunatic fit for examination, and not dangerous, may ""'also 
 be brought up from a lunatic asylum by virtue of this writ.' 
 So where the witness is under the duress of some third person, as a 
 sailor on board a man-of-war, his attendance is procured by the same 
 means.J 
 
 The attendance of a witness in criminal cases may be compelled 
 by means of a suhpoeyia issued in the queen's name by the justices of 
 the court in which the ofience is to be tried ;^ but the more usual 
 course in all cases of treason, felony, indictable misdemeanor, or any 
 indictable offence is for the justices who take the informations, 
 examinations and depositions, to bind the witnesses under the statute 
 11 & 12 Vict. c. 42, ss. 16 and 20, by recognizance, to appear at 
 the next Court of Oyer and Terminer or Gaol Delivery, or Quarter 
 Sessions, or other court at which the accused is to be tried, to give 
 evidence.^ In cases of murder and manslaughter, the coroner, upon 
 any inquisition taken before him, is empowered by 7 Geo. IV. c. 64, 
 s. 4, to bind the witness by recognizance to appear and give evi- 
 dence on the trial. 
 
 Where an offender who has escaped from one part of the United 
 
 '' Previous to this statute it was the usual practice for the courts to award this 
 writ upon motion, accompanied with a proper affidavit. By the stat. 43 Geo. III. 
 c. 140, ajudjie of any of the courts at Westminster may at his discretion award 
 a writ o^ habeas corpus for bringing a prisoner detained in any goal in England 
 before a court martial, or before commissioners of bankrupts, commissioners for 
 auditing jiublic accounts, or other commissioners acting by virtue of any royal 
 commission or warrant. 
 
 ' Faindl V. Tail, 1 C, M. & R. 584. 
 
 J Rex V. Jioddum, Cowp. 072. 
 
 " Ji. V. Jiiu!j, 8 T. 11. 585. 
 
 ' See 2 lluss. on Crimes, 3d ed. 945 ; 20 IIovv. St. Tr. 355 ; and sec Howard 
 V. Gossctt, 10 Q. B. (59 E. C. L. R.) 43G ; 2 Ilaw. c. 46, s. 165. 
 
 ' A sheriff is bound to bring up a person in execution on a civil suit, on a 
 habeas corpus ad tcstijicandum, on being tendered tlie expenses of bringing him 
 u|) and talking iiim back : Nublc v. Smith, 5 Johns. 357. G.
 
 WITNESS — PROCESS. 105 
 
 Kingdom is tried in anotlier, by virtue of the stat. 45 Geo. III. c. 92, 
 s. 3," service of a subpoena on a witness in one part of the United 
 Kingdom to give evidence in a criminal prosecution in another part, 
 is as effectual as if the witness had been served with the subpoena in 
 that part of the United Kingdom where he is required to appear, 
 and upon default notified by a certificate under the seal of the court 
 Avhence the subjurna issued, to the Court of King's Bench in England 
 or Ireland respectively, or the High Court *of Justiciary in r+iAA-i 
 Scotland, he is liable to be punished as for a contempt of the 
 process of those courts respectively. By the express provision of 
 this statute (sect. 4) the witness cannot be punished for default, 
 unless the reasonable expenses of coming and attending to give evi- 
 dence, and of returning, have been tendered to him.°"" In other 
 cases the witness is bound to obey the writ, or to perform the condi- 
 tion of his recognizance, although no expenses have been tendered to 
 him;" for the calls of justice are paramount to all private considera- 
 tions and claims." In case of ^ felony and some cases ofi misde- 
 meanor, the legislature has made provision for the expenses of the 
 prosecution and witnesses. 
 
 At common law, a defendant in capital cases had no means of 
 compelling the attendance of witnesses on his behalf without a 
 special order from the court ; and if they attended voluntarily, 
 they could not be sworn. ''^ But in case of misdemeanor a defend- 
 
 ™ And see 13 Geo. III. c. 39, and 44 Geo. III. c. 92. The latter statute is re- 
 pealed so far as relates to the apprehension of offenders escaping from Ireland 
 into England, or from England into Ireland, and to the backing of warrants 
 against them, by 11 & 12 Vict. c. 42, s. 21. 
 
 """ The provision is confined to cases where the witness making default is out 
 of the jurisdiction of the Court from which the certificate is transmitted: E. v. 
 Broumcll, 1 Ad. & Ell. (28 E. C. L. R.) 602; and it does not apply to a subpoena 
 from the quarter sessions. lb. 
 
 " 2 Russ. on Crimes, 3d ed. 947. 
 
 » 2 Haw. c. 46, s. 168 ; 2 Hale 292 ; B. v. CooJce, 1 Car. & P. (12 E. C. L. R.) 
 321. 
 
 P 7 Geo. IV. c. 64, s. 22 ; Bex v. Exeter Co. Treas., 5 M. & Ry. 167 ; and pro- 
 vision is made by 6 & 7 Will. IV. c. 89, and 7 AVill. IV. & 1 Vict. c. 68, for the 
 expenses of medical and other witnesses attending on coroner's inquests ; see 
 the statutes on this subject more fully noticed, Vol. III., tit. Witness. 
 
 1 7 Geo. IV. c. 64, s. 23 ; and by 1 Vict. c. 44, this power is extended to cases 
 of misdemeanor in concealing the birth of a child. 
 
 ' 2 Haw. c. 46, s. 165 ; Bex v. Turner, 6 How. St. Tr. 565 ; 4 Bl. Com. 359. 
 
 ^ In Massachusetts, prisoners indicted for a capital offence are entitled to the
 
 106 ORAL EVIDENCE. 
 
 ant might always take out suhpoenas as of course.* Bj the stat. 7 
 "Will. III. c. 3, s. 7, it was provided that defendants, in cases of trea- 
 son, should have the same process to compel the attendance of wit- 
 nesses for them as was granted to compel witnesses to appear against 
 them; and ever since the statute 1 Anne, st. 2, c. 9, s. 3, wliich pro- 
 pyl 07"! ^^^^^^ ^^^^ witnesses for the prisoners, *in cases of treason or 
 felony, shall he sworn in the same manner as the witnesses 
 for the Crown, and be subject to the same punishment for perjury, 
 the process by subpoena is allowed to defendants in cases of felony, as 
 well as in other instances ;* and consequently, as the law now stands, 
 a witness who should refuse, after being subpoenaed to attend to give 
 evidence for a defendant in a criminal case, would be liable to an at- 
 tachment for a contempt of court. 
 
 In proceedings before justices of the peace at their quarter ses- 
 sions, whose jurisdiction does not extend beyond the county for 
 which they act, in order to procure the attendance of a witness 
 who resides in another county the process is issued from the Crown 
 office.' 
 
 Where magistrates are authorized by a statute to hear and deter- 
 mine, or to examine witnesses, they have, incidentally, authority to 
 summon witnesses, and take the examination on oath." And by the 
 express provisions of stat. 11 & 12 Vict. c. 42, when any indictable 
 offence has been committed within the limits of the jurisdiction of 
 any justice of the peace, or when any person suspected to be within 
 his jurisdiction, he may issue his warrant to apprehend such person, 
 and may summon any person within his jurisdiction as a witness for 
 
 * 2 Haw. c. 46, s. 165. 
 
 * See R. V. Ring, 8 T. R. 585 ; Rex v. Brownell, 1 Ad. & E. (28 E. C. L. R.) 
 602 ; see also 11 & 12 Vict. c. 42, s. ]6. 
 
 " Lamb 517 ; Dalton's J., c. 6. 
 
 Commonv.'ealth's process to bring their witnesses into court at the Common- 
 wealth's expense: Comm. v. Williams, 13 Mass. 501. M. 
 
 And it has always been the practice in the State Courts of Pennsylvania for a 
 person accused to have compulsory process fi-om a magistrate or the court for 
 his witnesses, before indictment and he is entitled to it in the United States 
 Courts under the Eighth Article of the amendment to the Constitution of the 
 United States: U. S.v. i/oore, Wall. 2P,. See also, Burr's Trial 178. Even 
 after a conviction the defendant is entitled to a subp(x!na to compel tlie attend- 
 ance of witnesses to prove extenuating circumstances : State v. Smith ct al., 2 
 Ray 62. But witnesses for a misdemeanor are not bound to attend the trial 
 unless their fees arc paid as in civil cases, but it is otherwise in prosecutions 
 for felony : 7'Jx parte Chamberlain, 4 Cow. 49. I.
 
 WITNESS — PRODUCTION OF DOCUMENTS. 107 
 
 the prosecution, or may, if requisite, by warrant, cause such person 
 to be brought before him to give evidence concerning the charge ; 
 and if such person refuse to give evidence, he may commit him to 
 prison/ By another statute"^ likewise, in all cases where justices of 
 the peace are empowered to imprison, fine, or otherwise punish upon 
 summary conviction ; and in all cases where they are empowered 
 upon complaint to make any order for payment of *moneyor r:i:-|AQ-i 
 otherwise ; if it shall appear upon oath or affirmation that 
 any one within the justices' jurisdiction is likely to give material 
 evidence for the prosecutor, complainant, or defendants, and will 
 not voluntarily appear as a witness, any such justice may issue a 
 summons and afterwards a warrant, or in certain instances a warrant 
 only, in the same manner to appear at the time and place therein 
 mentioned, and give evidence for the witnesses as is provided by 
 11 & 12 Vict. c. 42, where persons have committed indictable 
 offences. 
 
 Commissioners of bankrupts may summon before them any per- 
 sons whom they believe to be capable of affording information con- 
 cerning the trade, dealings or estate of the bankrupt, and in default 
 they may order the party summoned to be apprehended. Every such 
 witness is entitled to have his expenses tendered him." 
 
 The Court for Relief of Insolvent Debtors in England^ has the 
 same power for compelling the attendance of witnesses 'and produc- 
 tion of documents as the superior Courts at Westminster. That 
 court has also the same powers as Commissioners of Bankrupts in 
 reference to the attendance of witnesses and the production of docu- 
 ments in cases of insolvency arising under the statutes 5 & 6 Vict. 
 c. 116, and 7 & 8 Vict. c. 96, s. 5, the jurisdiction over which was 
 transferred by the statute 10 & 11 Vict. c. 302, ss. 4, 6 and 8, to the 
 court and the judges of the County Courts in the country. 
 
 Either of the parties to any proceeding under the recent Act* 
 establishing County Courts, may obtain, at the clerk's offices, sum- 
 monses to witnesses, with or without a clause requiring the production 
 of writings, which are to be served by one of the bailiffs of the court ; 
 and any person so served, and to whom his expenses are tendered, 
 and any person present in court, who sball be required to give evi- 
 dence, shall pay, on default or refusal, a fine not exceeding £10. 
 
 *Witnesses also being duly summoned to attend on Courts r-^-, oq-i 
 Martial, are, by the statute 13 Vict. c. 5, s. 15, liable, on 
 
 Ml & 12 Vict. c. 42, 8. 16. '11 & 12 Vict. c. 43, s. 7. 
 
 ^ 12 & 13 Vict. c. 106, s. 120. ^ 1 & 2 Vict. c. 110, s. 27. 
 
 ' 9 & 10 Vict. c. 95, ss. 85, 86.
 
 109 ORAL EVIDENCE. 
 
 neglect to attend, or produce documents if required, to attachment 
 in tlie Court of Queen's Bench, as in case of neglect to attend a trial 
 on a criminal proceeding in that court. 
 
 In the case of a reference to arbitration by rule of court, or bj a 
 judge's order or agreement to make the submission a rule of court, the 
 court making such rule or order, or any judge, may direct the at- 
 tendance of a witness to be examined before the arbitrator, or the 
 production of any document, by the statute 3 & 4 AVill. IV. c. 42, 
 s. 40. 
 
 Commissioners of inclosure, and assistant commissioners under the 
 statute, have power to summon by writing any person within a certain 
 distance to appear before them to be examined, or by summons under 
 the seal of the commissioners to appear before any valuer ; and in 
 each case to produce documents ; and if the party summoned refuse 
 to appear, or to produce documents, having had his reasonable ex- 
 penses tendered, he will be guilty of a misdemeanor.'' And similar 
 powers to require attendance of persons and production of documents 
 are given to the Tithe Commissioners by summons, under hand 
 only, by 6 & 7 Will. IV. c. 71, s. 6." And to the Poor-Law Com- 
 missioners by summons under hand and seal by 4 & 5 Will. IV. c. 76. 
 
 Where either party cannot safely proceed to trial on account of 
 the absence of a material witness, the proper course is to move the 
 court in term time, or to apply to a judge in vacation, or the judge 
 at the sittings, on a proper affidavit, to put off the trial, which he 
 allows or not at his discretion." 
 
 *Where a witness is resident abroad, or is going abroad, the 
 J proper course is to apply to the court to have him examined 
 out of court, vivd voce, or on interrogatories. So, where it is appre- 
 hended that, from illness, a witness may not be able to attend the 
 trial.'^" 
 
 Where an instrument is in the hands of a third person, the produc- 
 tion is compelled by means of a writ of subpoena duces tecum.'"' By 
 
 «8 &9 Vict. c. 118, Hs. 9, 164. 
 
 »- See 10& 11 Vict. c. 104. 
 
 ' Turner v. Merri/tveather, 7 C. B (02 E. C. L. R.) 251. But this application 
 will not be granted at the instance of the plaintiff", unless in the case perhaps of 
 a trial by proviso, because he may withdraw his record ; but when, in conse- 
 quence of some sudden indisposition or accident, a witness is unable to attend, 
 but is likely to be able to do so })cfore the sittings are over, the judge will usually 
 make an ordcir that the cause shall stand over : Analeij v. Birch, 3 Camp. C. 333. 
 
 '''' Infra, Writtkn Evidence. — Index, tit. Examination on Interrogatories. 
 
 *" From the entries cited in the case of Amey v. Long, 9 East 473, it appears
 
 AVITNESS — PRODUCTION OF DOCUMEXTS. 110 
 
 this writ the witness is compelhible to produce all documents in his 
 possession, unless he have a lawful or reasonable excuse to the con- 
 trary.*^ Of the validity of the excuse the court, and not tlie witness 
 is to judge/^ As every man, in furtherance of justice, is bound to 
 disclose all the facts within his knowledge which do not tend to 
 his crimination, upon the very same principle he is *also ^ 
 
 . r*iiii 
 
 bound to produce such documents as are essential to the •- -• 
 discovery of truth and the great ends of justice. But as he is pro- 
 tected from answering questions, the answers to which may subject 
 him to penal responsibility, so he is not compellable to produce any 
 document in his possession, where the production would be attended 
 with similar consequences.^ 
 
 There is, however, in one respect, a distinction between compelling 
 
 that this writ has in fact been used from the time of Charles the Second ; but 
 so necessary is the power of compelling the production of documents in the pos- 
 session of third persons, that the means of doing it must have been coeval with 
 the courts of law. 
 
 The statutes 11 & 12 Vict. c. 42, and 11 & 12 Vict. c. 43, do not make any 
 provision for enforcing the production of documents, and it has been decided 
 that a summons of a justice requiring a party possessed of documents to attend 
 as a witness and produce them is not equivalent to a siihpvena duces tecum : 
 R. V. Inhabitants of Orton, 7 Q. B. (53 E. C. L. R.) 120. But on an applica- 
 tion before magistrates at petty sessions, a subpoena ad testificandum, and a 
 subpoena duces tecum, may issue from the Crown ofiBce, and disobedience will be 
 punished by Q. B. with attachment: R. v. Greemcay, 7 Q. B. (53 E. C. L. R.) 
 156; R. V. Carey, Ibid. 131. The Court of Bankruptcy may require any person 
 summoned before them to give information concerning the bankrupt and his 
 dealings, to produce any documents in his custody or power which the Court 
 may think necessary : 12 ct 13 Vict. c. 106, s. 120. The powers of the Insolvent 
 Court, of the County Courts, and of Arbitrators, Commissioners of Inclosure, 
 Tithe and Poor-Law Commissioners to procure the production of documents 
 have already been mentioned, ante, pp. 108, 109. 
 
 ^ Ameij V. Long, 9 East 473. 
 
 * Amey v. Long, 9 East 473 ; Field v. Beaumont, 1 Swans. 209. 
 
 ^ See Whittaker v. Izod, 2 Tant. 115 ; and The King v. Nixon, 3 Burr. 1G87. 
 
 ^ A witness may be compelled, under a suhpcena duces tecum to produce a 
 document in his possession, unless he has a laAvful or reasonable excuse for 
 withholding it, although the production of it will adversely affect his pecuniary 
 interest: Bull v. Loveland, 10 Pick. 9. The court and not the witness is to 
 judge of the reasonableness of his excuse: Ibid. Chaplain v. Briscoe, 5 S. & M. 
 198. A subpoena duces tecum was served on a witness, who attended but did 
 not produce on the trial the papers specified, nor show a good reason why he 
 did not. Held, that he was liable to the aggrieved party for all the damages 
 sustainedin consequence of his disobedience: Lane v. Cole, 12 Barb. 680. And 
 see 0' Toole's Estate, 1 Tuck. 39.
 
 Ill ORAL EVIDENCE. 
 
 a witness to answer a question orally, and obliging liim to produce 
 a written document.. He must answer questions, althougli the answer 
 may render him civilly responsible ; but he is not compellable to pro- 
 duce title-deeds, or any other documents which belong to him, where 
 the production might prejudice his civil rights.^ And this is, as it 
 seems, a rule of legal policy founded upon a consideration of the great 
 inconvenience and mischief to individuals which misht and would re- 
 suit to them from compelling them to disclose their titles, by the pro- 
 duction of their title-deeds or other private documents. But this rule 
 does not extend beyond the evidences of title.^ 
 
 The same principle applies where the document is in the hands of 
 
 s Doe dem. Earl of Egremont v. Date, 3 Q. B. (43 E. C. L. R.) 609. This 
 case arose on the trial of an ejectment by a party claiming the reversion against 
 a lessee. The plaintiif to prove seisin in G., a late tenant for life, called his 
 executor, and required him to produce a book containing an entry forty years 
 old of a receipt of rent for the land in question by (?.'s steward. It was 
 admitted that the executor, as legatee of large personal property under the will 
 of the tenant for life, would be liable over to the defendant if the plaintiff 
 obtained a verdict under G.'s covenant for title, and that the action was sub- 
 stantially defended by the executor. But it was held that the executor was 
 bound to produce the book. Though the person declining to produce the docu- 
 ment cannot be compelled to state the contents, yet he must disclose the date, 
 and the names of the parties in order to identify it : Doe dem. Loscomhe v. Clif- 
 ford, 2 C. & K. (61 E. C. L. R.) 448. 
 
 ' The subpfena duces tecum is not a process of course ; thus it will not be 
 issued to a public officer to bring original papers into court, when certified 
 copies would be evidence : Delany v. Regulators, 1 Yeates 403. Nor to the 
 printer of a newspaper to produce certain of his newspapers in court : Shippen 
 V. Wells, 2 Yeates 260. And it seems that the Governor of the State cannot be 
 compelled to produce a communication sent to him respecting the character of a 
 public officer : Gray v. Pentland, 2 S. & R. 23. So a cashier of a bank is not 
 bound to produce the books of the bank on this writ, in a case where the bank 
 is a party: Utica Bank v. Ililliard, 5 Cow. 153, 419. Semhle, a witness cannot 
 thus be compelled to produce a paper which would criminate himself: U. S. v. 
 Reyhurn, 6 Pet. 367. A witness may however be compelled, under a suhjxKua 
 duces tecum, to produce a document in his possession, unless he has a lawful or 
 reasonable excuse for withholding it, although the production of it will ad- 
 versely affect his pecuniary interest ; of tlie lawfulness or reasonableness of such 
 excuse, the court and not the witness is to judge : Bull v. Loveland, 10 Pick. 9. 
 
 A security in a sherifl"'s bond was compelled to produce the books of his 
 principal (who had died insolvent) on a suhpama duces tecum, notwithstanding 
 ho was apprehensive of danger to himself from the production in the way of suits 
 upon tlie bond : Hawkins v. Sumpter,4 Dess. 446. But this suhpxxna cannot be 
 issued to tlie attorney of the party whose cause is on trial and received the 
 papers conlideiitially in that character : Diirkce v. Leland, 4 Vt. 612. G.
 
 WITNESS — PRODUCTION OF DOCUMENTS. 112 
 
 an attorney: he will not be compelled to *produce it to ho 
 read Avhere the disclosure would be prejudicial to his client,'' ^ "-' 
 and when he is protected from producing it, he cannot be forced to 
 divulge its contents.' But the latter privilege is confined to an 
 attorney or his representative, and. therefore, although an agent, 
 not being an attorney, or his clerk, may not be compellable to pro- 
 duce the deeds of his principal, (a party in the cause,) yet he is 
 liable, on declining to produce them, to be examined as to their 
 contents.''^ 
 
 Where these objections do not apply, it seems that the writings in 
 a man's possession are as much liable to the calls of justice as the 
 faculties of speech and memory are. There can be no difference in 
 principle between obliging a man to state his knowledge of a fact, and 
 compelling him to produce a written entry in his possession which 
 proves the same fact. Not only a man's estate, but even his liberty 
 or life may depend upon written evidence, which is the exclusive pro- 
 perty of a stranger. If the Court think, that upon principles of jus- 
 tice and equity, the production ought not to be enforced, secondary 
 evidence may be given. 
 
 It is in all cases the duty of the witness to bring the document 
 with him, according to the exigency of the writ ;^ and it is a ques- 
 tion of law for the court, wdiether, upon principles of justice and 
 equity, the production of the instrument ought to be enforced.™ 
 Disobedience of the writ by the witness will not warrant the recep- 
 tion of *parol evidence ; but where the witness in fraud of 
 
 r*ii3i 
 
 the subpoena, had transferred the document to the adverse ^ J 
 
 '' Copeland v. Watts, 1 Stark. C. (2 E. C. L. R.) 95. See further on this sub- 
 ject, Vol. II., tit. Confidential Communication ; R. v. Woodley, 1 M. & Rob. 
 390; B. V. Boddington, 8 D. & R. (16 E. C. L. R.) 726. 
 
 ' Davies v. Waters, 9 M. & W. 608 ; Hibbard v. Kniglii, 2 Exch. 11 ; Newton 
 V. Chaplin, 19 L. J., N. S., C. P. 374 
 
 " Earl of Falmouth v. Moss, 11 Pri. 455. 
 
 1 Amey v. Long, 9 East 473 ; Corsen v. Dubois, 1 Holfs C. (3 E. C. L. R.) 239 ; 
 Field V. Beaumont, 1 Swanst. 209; Reed v. James, 1 Stark. C. (2 E. C. L. R.) 
 132. 
 
 " Copeland v. Watts, 1 Stark. C. (2 E. C. L. R.) 95 ; Corsen v. Dubois, 1 
 Holt C. (3 E. C. L. R.) 239 ; Reed v. James, 1 Stark. C. (2 E. C. L. R.) 132. 
 
 ^ Jackson v. Bustis, 14 Johns. 391 ; Lynde v. Judd, 3 Day 499 ; Durkee v. 
 Leland, 4 Vt. 612. He may prove the existence of such papers and that they 
 are in his possession, so as to enable the party to give secondary evidence of 
 their contents : Rhoads v. Selin, 4 Wash. C. C. 718 ; Brundt v. Klein, 17 Johns. 
 335 ; Jackson v. Mc Vey, 18 Johns. 330. See McPherson v. Rathbone, 7 Wend. 
 216.
 
 113 ORAL EVIDENCE. 
 
 party in the cause, it was held that parol evidence was admissible." 
 Of course it is not admissible when the subpoena was served too late." 
 
 Where the instrument is in the hands of the adverse party timely 
 notice should be given to produce it.P 
 
 As a witness is bound to attend in court in obedience to the writ, 
 so is he under an obligation to be sworn and give evidence on his 
 appearance. And if a witness for the Crown refuse to be sworn, he 
 is guilty of a contempt of court, and may be fined, and committed 
 till he has paid the fine.'' A person who happens to be in court, 
 may, in a criminal case, be compelled to give evidence, although he 
 has not been bound by recognizance, or served with a subjjoena as a 
 witness.' 
 
 The law protects a witness, as well as a party to the suit, from 
 arrest, eundo morando et redeundo.^^ And.it is not essential to his 
 protection that the witness should have been subpoenaed, if he has 
 consented to attend.' The courts usually allow ample time for this 
 purpose " The same indulgence has been extended to a witness at- 
 r*114.1 tending an arbitrator under an order of Nisi Prius ;^ and *to 
 a petitioning creditor,"" a bankrupt, or witness attending a 
 
 " Leeds v. Cook et nx., 4 Esp. C. 250. 
 
 " Hibberd v. Knight, 2 Ex. 11. 
 
 P Doe d. Wartney v. Gray, 1 Stark C. (2 E. C. L. R.) 283. 
 
 •J Lord Preston'' s case, Salk. 278. Lord Preston was committed by the Court 
 of Quarter Sessions for refusing to be sworn before the grand jury on an indict- 
 ment for high treason. But a witness may refuse to be sworn in a civil case if 
 hisexpenses have not been paid. 
 
 ^R. v. Sadler, 4 C. & P. (19 E. C. L. R.) 118. 
 
 ^ Meekins v. Smith, 1 H. B. 636; Lightfoot v. Cameron, 2 Bl. 1113 ; Eandall 
 V. Gurney, 3 B. & A. (23 E. C. L. R.) 252. 
 
 ' Spence v. Stuart, 3 East 89 ; Kinder v. Williams, 4 T. R. 377 ; Arding v. 
 Flower, 8 T. R. 534 ; Ex parte Byne, 1 Ves. & B. 316 ; Meekins v. Smith, 1 H. 
 B. 636. 
 
 " 13 East 16 11. (a) ; Willingham v. Matthews, 6 Taunt. (1 E. C. L. R.) 356 
 Lightfoot V. Catneron, cited in 2 Bl. 1113; Hatch v. BUsset, Gilh. Cas. 308 
 cited in Jlolliday v. Pitt, 2 Str. 986; Strong y. Dickenson, 1 M. & W. 488 
 Eandall v. Gurney, 3 B. & Aid. (5 E. C. L. R.) 252. 
 
 * Spence v. Stuart, 3 East 89; Moore v. Booth, 3 Ves. 350; Randall v. Gurney, 
 3 B. & Aid. (5 E. C. L. R.) 252 ; Rishton v. Nisbett, 1 M. & Rob. 347 ; Webb v. 
 Taylor, 1 Dow. & L. 676. 
 
 "" Selby v. Hills, 1 Dowl. P. C. 257. 
 
 ' If a witness privileged from arrest 1)8 nevertheless arrested, and do not 
 
 in.sist on his privilego, but give a bond for the prison-bounds, such bond is 
 
 neither void nor voidable — the privilege is waived: Tipton y. Harris, Peck. 
 414. G.
 
 OBJECTIONS IN EXCLUSION OF WITNESSES. 114 
 
 meeting of commissioners ;"" a witness attending the execution of a 
 writ of inquiry,"" the Insolvent Debtors' Court," and a Court Martial 
 under the Mutiny Act.^ 
 
 But a witness is not protected from being taken by his baiV for 
 this is not an arrest,'' but a retaking ; and he may also bo arrested on 
 criminal process. 
 
 II. Objections in exclusion of the testimony of tvitnesses. 
 
 It has already been seen that a witnesss may be incompetent, 
 because he is incapable of religious obligation from youth, mental in- 
 firmity,'^ ignorance, or unbelief. 
 
 ^ Spence v. Stuart, 3 East 89 ; Arding v. Flower, 8 T. R. 534 ; Kinder v. Wil- 
 liams, 4 T. R. 377 ; Ex parte Bijne, 1 Ves. & B. 316. 
 ^ Walters v. Rees, 4 Moore (16 E. C. L. R.) 34. 
 =' WilUngham v. Matfheivs, 6 Taunt. (1 E. C. L. R.) 356. 
 yEx jiarte Lgne, 3 Stark. C. (3 E. C. L. R.) 132. 
 
 ^ Per Richards, C. B., Horn v. Swinford, 1 D. & R. (16 E. C. L. R.) 20. 
 * One who is born deaf and dumb may, if he have sufficient understanding, give 
 
 ^ And to a witness attending before a magistrate to give his depositions under 
 a rule of court : U. S. v. Edm(;, 9 S. & R. 147. I. 
 
 The privilege of a vritness does not extend throughout the term at which the 
 case is marked for trial ; nor is he protected while engaged in transacting his 
 private business, after he is discharged from the obligation of his subpoena : 
 Smytlie v. Banks, 4 Dall. 329. But he is protected while at his lodgings, as 
 well as while going to or returning from court: Hursfs case, 4 Dall. 487. And 
 a witness from another State is entitled to the same privilege as a citizen of the 
 State where the court sits : Koi'ris v. Beach, 2 Johns. 294 ; Sandford v. Chase, 
 3 Cow. 3S1. It was held by Washington, J., in the Circuit Court of the United 
 States for the third circuit in New -Jersey, that the privilege of a witness extends 
 only to an exemption from arrest, and does not render illegal the service of a 
 summons upon him, unless he be in the immediate presence of the court: 
 Blighfs Ex. v. Fisher et al., 1 Pet. 41. The contrary, however, has been held 
 by the Supreme Court of New Jersey : Balsey v. Sterrard, 1 South. 366. The 
 protection which the law gives to a witness is a personal privilege, of which he 
 may avail himself to prevent or defeat an arrest ; but if he waive the privilege 
 and willingly submit to custody, he cannot afterwards object to the imprison- 
 ment as unlawful: Brotvn v. Gitchell, 11 Mass. 11. A writ of protection is 
 often sued out for a witness ; but it is of no use except to give notice to the 
 officer — being no protection to one who is not legally entitled to it : Ex parte 
 McNeil, 6 Mass. 264. The common remedy when a witness or party is arrested, 
 while ftojia j^(?e attending to a cause which requires his attendance, is by motion 
 to the court to be discharged from custody. But in New Yoi'k, he will not be 
 discharged without notice to the plaintiff. A rule to show cause, however, will 
 be granted and proceedings stayed in the mean time: Graver v. Green, 1 Caines 
 115. M.
 
 114 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 The objection arising from the ignorance or unbelief of the wit- 
 ness, ought, in its natural course, to be taken before the witness is 
 sworn, because it assumes that he is incapable of being bound by an 
 oath. Indeed any objection to competency ought to be taken in the 
 first instance, and before the witness has been examined in chief; for 
 otherwise it would afford an unfair advantage to the other party, who 
 would avail himself of the testimony of the witness, if it were favora- 
 ble, but would *get rid of it by raising the objection, if it 
 L -I turned out to be adverse. And therefore, where, upon a trial 
 for high treason, it appeared, after a witness had been examined with- 
 out objection on the part of the prisoner, that he had been misde- 
 scribed in the list of witnesses, which is required by the statute to be 
 given to the prisoner previous to his trial, the court would not permit 
 the evidence of that witness to be struck out.'' And so when the in- 
 competency of a witness appeared on the face of his answers to inter- 
 rogatories, it was held that the objection was waived by putting cross 
 interrogatories, and could not be insisted on at the trial." It has, 
 however, been held, that if it be discovered at any stage of the trial 
 that a witness is so interested as to be incompetent, his evidence may 
 be struck out f but this, it seems, is to be understood of those cases 
 only where the objection could not have been taken in the first in- 
 stance.*^ The practice formerly was when an objection was made to 
 
 evidence by means of an interpreter : R. v. Enston, 1 Leach C. C. 408 ; or by 
 writing if able : Morrisonv. Lennard, 3 C. & P. (14 E. C. L. R.) 127. Lunatics 
 are competent during lucid intervals. Com. Dig., tit. Testmoigne, A. 1. And a 
 person suspected to be insane may be examined on the voire dire to show his 
 state of mind : see Att.-Gen. v. Hitchcock, 1 Ex. 95. 
 
 » R. V. Watson, 2 Stark. C. (3 E. C. L. R.) 158. 
 
 " Ogle V. PalesJd, Holt C. (3 E. C. L. R.) 485. 
 
 * Turner v. Pearie, 1 T. R. 720 ; Howell v. Lock, 2 Camp. 14 ; Perigal v. 
 Nicholson, 1 Weightw. 64; Beeching v. Goicer, Holt's C. (3 E. C. L. R.) 313; 
 Stoney. Blackburn, 1 Esp. C. 37; Morish v. Footc, 2 Moore (4 E. C. L. R.) 508 ; 
 8 Taunt. (4 E. C. L. R.) 454 ; Ja-cohs v. Layhourn, 11 M. & W. 685. 
 
 « Morish v. Fooie, 2 Moore (4 E. C. L. R.) 508 ; 8 Taunt. (4 E. C. L. R.) 454; 
 Felingham v. Sparrow, 9 Dowl. P. C. 141 ; but see Jacobs v. Layhourn, contra. 
 
 ' A witness incompetent by reason of interest must be objected to before he 
 is sworn, if such interest is known then to the ol)jcctor : Donelson v. Taylor, 8 
 Pick. 390 ; Stuart v. Lake, 33 Me. 87. If in the course of a witness' examina- 
 tion, however, he appears from his own answers to be incompetent, the party 
 aj^ainst whom the evidence is given should move to strike out the testimony : 
 Sims v. Givan, 2 Blackf. 461 ; Heely v. Barnes, 4 Dcnio 73 ; Scott v. Jester, 8 
 Engl. 4:57 ; Morton v. Beall, 2 liar. & OiU 136 ; Lester v. McDowell, 6 liar. 91. 
 Ill cliaiici-ry wli<;n a [larty has cross-examined the witness, and no cxcei)tion to
 
 TIME OF OBJECTING. 115 
 
 the competency of a witness, to make it before he was sworn in chief, 
 and to swear and examine him, where his incompetency was sup- 
 posed to arise from interest, on the voire dire ; and after a witness 
 had been examined in chief, the objection could no longer be taken/ 
 But the same strictness is not observed in modern practice : at least 
 with respect to objections to witnesses on the ground of interest.^ 
 
 Before a witness takes the oath, lie may be asked whether 
 *he believes in the existence of a God, in the obligation of 
 
 . r*ii6i 
 
 an oath, and in a future state of rewards and punishments; ^ -' 
 and if he does, he may be admitted to give evidence.' And it seems 
 that he ought to be admitted if he believes in the existence of a 
 God who Avill reward or punish him in this world, although he does 
 not believe in a future state. "^ ' But it is not sufficient that he believes 
 himself bound to speak the truth, merely for a regard to character, 
 or the interests of society, or fear of punishment by the temporal 
 law.^ 
 
 The most correct and proper time for asking a witness whether 
 the form in which the oath is about to be administered to him is one 
 that will be binding on his conscience, is before that oath is adminis- 
 
 ^ Lord Lovafs case, 10 How. St. Tr. 506. 
 
 s Turner v. Pearte, 1 T. R. 720; Jacobs v. Layhourn, 11 M. & W. 685 ; Yardleij 
 V. Arnold, 10 M. & W. 141 ; and see further on this topic, liost. 
 
 ' i?. V. Tuijlor, Peake's N. P. R. 11. A ne^ro called as a witness stated, 
 before he was sworn, that he was a Christian, and had been baptized ; and it 
 was held that he ought to be sworn, and aslied no furtlier questions before he 
 took the oath : R. v. Serm, 2 C. & K. (61 E. C. L. R.) 53. 
 
 ''See the judgment of Willes, C. J., in Omichund v. Barker, Willes 550; 1 
 Atk. 21 ; 1 Wils. 84. 
 
 ' R. V. Ruston, Leach C. C. L. 455. 
 
 his testimony is made until the hearing of the cause, the objection will be con- 
 sidered as waived: Barroivy. Rhinelander, 1 Johns. Ch. 550; Town v, Needham, 
 3 Paige Ch. 546. 
 
 ^ The weight of authority in the United States is very decidedly with the text 
 on this point. If, however, any sanction bo required beyond the temporal 
 penalties aifixed to the crime of perjury — very inadequate if we consider that 
 the oath of the witness can only be met in a criminal proceeding by the oaths 
 of two witnesses, or what is equivalent thereto — those which may be observed 
 to follow such crimes in this world will hardly be sufficient to overbear any 
 strong temptation to commit them. That the belief must be in a future state 
 are the cases of Aiwood v. Welton, 7 Conn. 66 ; Comm. v. Bachelor, 4 Am. 
 Jurist 81. Contra, Hanscom v. Hunscorii, 15 Mass. 184; Farnandis v. Hender- 
 son, S. Car. L. J. 202 ; Noble v. People, Breese 29 ; Blocker v. Burness, 2 Ala. 
 354; Brock v. Millifjan, 10 Ohio 121 ; U. S. v. Kennedy, 3 McLean 175; Blair v. 
 Seaver, 2 Cas. 274 ; Bennett v. State, 1 Swan. 411. See ante, p. 29, note 1.
 
 116 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 tered. But altliough a witness shall have taken the oath in the usual 
 form without making any objection, he may, nevertheless, be after- 
 wards asked whether he considers the oath he has taken to be binding 
 on his conscience. But if the witness answer in the affirmative, that 
 he does consider the oath which he has taken to be binding upon his 
 conscience, he cannot then be further asked whether there be any 
 any other mode of swearing that would be more binding upon his 
 conscience than that which has been used."" 
 
 r*l17"I "'■^^ criminal cases, where a person of tender years is a ma- 
 terial witness, it is usual for the court to examine the witness 
 as to his competency to take an oath before he goes before the grand 
 jury. And if such a witness be found incompetent for want of proper 
 instruction, the court will in its discretion, put off the trial, in order 
 that the party may in the mean time receive such instruction as will 
 qualify him to take an oath. Neither the testimony of the child with- 
 out oath, nor evidence of any statement which he has made to any 
 other person, is admissible."^ 
 
 " The Queen's case, 2 B. & B. (0 E. C. L. R.) 284. According to the opinion 
 of the judges, as delivered by Abbott, C. J., in answer to questions proposed by 
 the Lords : Abbott, C. J., after delivering this opinion, added, " Speaking for 
 myself (not meaning thereby to pledge the other judges, though I believe their 
 sentiments concur with .my own), I conceive, that if a witness says he considers 
 the oath as binding upon his conscience, he does in eifect affirm, that in taking 
 that oath he has called God to witness that what he shall say will be the truth, 
 and that he has imprecated the Divine vengeance upon his head if what he shall 
 afterwards say is false ; and having done that, it is perfectly unnecessary and 
 irrelevant to ask any further questions." And see Sells v. Hoare, 7 Moore (17 
 E. C. L. R.) 36 ; 3 B. & B. (7 E. C. L. R.) 232. 
 
 " Brazier's case, Leach, C. C. L. 237 ; R. v. Tticker, 1 Phill. on Ev., 9th ed. 6 ; 
 B. V. Nicholas, 2 C. & K. (61 E. C. L. R.) 46 ; per Pollock, C. B. : "Where the 
 infirmity arises from no neglect, but from the child being too young to have 
 been taught, I doubt whether the loss in point of memory would not more than 
 countervail the gain in point of religious education. Still I can easily conceive 
 that there may be cases where the intellect of the child is much more ripened, 
 as in cases of children of nine, ten, or twelve years old, when their education 
 has been so utterly neglected that they arc wholly ignorant on religious subjects. 
 In these cases a postponement may be very proper." In this case the child was 
 six years old, and postponement was refused. And where before the happening 
 of the facts to be proved by the child, there had been an absence of all religious 
 education, and the child had only been instructed with a view to being ex- 
 amined, but at the trial showed no real understanding on the subject of religion 
 or a future state, the judge refused to allow him to be examined : li. v. Williams, 
 7 Car. & P. (32 E. C. L. R.) 320; R. v. Piire, 3 Car. & P. (14 E. C. L. R.) 598. 
 
 ' A deaf and dumb person capable of relating facts correctly by signs, may 
 give evidence by signs through the medium of an interpreter, tliough it appear
 
 AVANT OF llELIGIOUS BELIEF — INFANCY. 117 
 
 It has already been observed tliat, until recently, if a person had 
 been convicted of an offence which is inconsistent with the common 
 principles of honesty and humanity, the law considered his oath to 
 be of no weight, and excluded his testimony as of too doubtful and 
 suspicious a nature to be admitted in a court of justice, to affect the 
 property or liberty of others. It has, however, been thought by the 
 legislature that the inquiry after truth in courts of justice was often 
 obstructed by these incapacities, and that it is ^desirable 
 
 r*ii8n 
 
 that full information as to the facts in issue should be laid *- -^ 
 before the persons who are appointed to decide upon them ; and that 
 they should exercise their judgment on the credit of the witnesses 
 adduced on the truth of their testimony." It has, therefore, been en- 
 actedP that " no person offered as a witness shall hereafter be ex- 
 cluded, by reason of incapacity from crime, from giving evidence 
 either in person or by deposition, but that every person so offered 
 may and shall be admitted to give evidence on oath, or solemn affirm- 
 ation in those cases wherein affirmation is by law receivable, notwith- 
 standing that such person offered as a witness may have been 
 previously convicted of any crime or offence." The law upon the 
 subject of the objection to competency on the ground of infamy has 
 thus been rendered obsolete, and, save as a matter of historical in- 
 formation, useless.^ 
 
 ° See recital 6 & 7 Vict. c. 85. 
 p 6 & 7 Vict. c. 85. 
 
 that such person can read and write, and communicate ideas imperfectly by 
 writing : State v. De Wolf, 8 Conn. 93. — G. See Snyder v. Native, 5 Blackf. 
 295. Whether a witness is intoxicated at the time of giving testimony and 
 therefore incompetent is a matter within the sound discretion of the court: 
 Gould V. Crawford, 2 Barr 89. As to the competency of witnesses, see Anoii., 
 2 Penn. 930 ; Van Pelt v. Van Felt, Ibid. 657 ; Den v. Vancleve, 2 South. 589 ; 
 State V. Leblanc, Const. Rep. (S. C.) 354 ; Comm^th v. Hutchinson, 10 Mass. 225. 
 ' It is the crime and not the punishment which creates the infamy and de- 
 stroys the competency of the witness: People v. Whipple, 9 Cow. 707. A con- 
 viction without an attainder is not enough: Shinner v. Perot, 1 Ashm. 57. See 
 also Cashman v. Loiter, 2 Mass. R. 108. But conviction of an infamous crime 
 in a foreign country, or in any other of the United States, does not render the 
 subject of such conviction an incompetent witness in the courts of Massachu- 
 setts : CommHh v. Green, 17 Mass. R. 515. Nor in Maryland: Cole v. Cole, 1 
 liar. & .Johns. 572 ; Clark v. Hall, 2 liar. & McIIen. 378 ; State v. Ridyehj, lb. 
 120. Nor in North Carolina: State v. Chandler, 3 Hawks. 393. But the record 
 is admissible in Massachusetts to affect his credit: Comni'th v. Knapp, 9 Pick. 
 497. Parol evidence of the conviction is inadmissible in New York to establish 
 the incompetency, although it be proved that the clerk's office of the county had
 
 118 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 The general principle which operated to the exclusion of an 
 interested witness has already been noticed. In order to obtain a 
 correct understanding of the present law upon this subject, it is 
 necessary to advert to the old rule, and to trace its gradual restric- 
 tion, until it has been reduced to the few exceptions contained in the 
 reccTit statute. 
 
 The old rule upon this subject was, that the interest must be some*! 
 
 1 See Bent v. Bakes, 3 T. R. 27 ; 2 Smith L. C. 39 ; R. v. Whiting, 1 Salk. 
 283 ; R. V. Boston, 4 East 572; R. T. Hardw. 572 ; Hamphreys v. Miller, 4 Car. 
 & P. (19 E. C. L. R.) 7 ; R. v. Walker, 1 Ford. MSS. 145 ; Parker v. Whitbrj, 1 
 Turn. & R. 362 ; Giles v. Smith, 1 Moo. & R. 443 ; Wishaw v. Barnes, 1 Camp. 
 341 ; Smith v. Harris, 2 Stark. C. (3 E. C, L. R.) 47 ; De Rone v. Fairlie, 1 Moo. 
 & R. 457 ; Doe v. Clarke, 3 Ring. N. S. (32 E. C. L. R.) 429 ; R. v. Cole, 1 Esp. 
 C. 169; Powell v. Gordon, 2 Esp. C. 735 ; Forrester v. Pigou, 1 M. & S. (28 L. C. 
 L. R.) 9 ; Fotheringham v. Greenwood. 1 Str. 129; Salk. 283 ; Lord Raym. 724 ; 
 Champion v. Atkinson, 3 Keb. 90 ; Company of Gold and Silver Wiredrawers v. 
 Hammond, Ford's MSS. : R. v. Braij, R. T. Hardw. 360 ; 1 T. R. 300 ; 3 T. R. 
 32 ; Co. Litt. 6 ; 1 Keb. 836 ; Bent v. Baker, 2 T. R. 27 ; Smith v. Prager, 7 T. R. 
 60 ; Abrahams v. Bunn, 4 Burr. 2251 ; and see Masters v. Drayton, 2 T. R. 490 ; 
 Carter v. Pearce, 1 T. R. 163 ; R. v. Boston, 4 East 572; Needham v. Law, 12 
 M. & W. 560. 
 
 been burnt down and the record probably destroyed ; for there is higher evi- 
 dence of the fact capable of being produced, that is, the transcript delivered 
 into the Court of Exchequer by the District Attorney, which must be presumed 
 to have been delivered according to his duty : Hilts v. Calvin, 14 Johns. R. 182. 
 So it is in general inadmissible in Massachusetts : Comm. v. Green, 17 Mass. R. 
 515. Even the admission of a witness will not suflBce to prove the alleged in- 
 famy, without the record of the judgment as well as the conviction : People v. 
 Whipple, 9 Cow. 707. But parol evidence to this point is held to be admissible 
 in Louisiana : Castcllano v. Peillon, 2 Martin, N. S. 466. And Maryland : Cole 
 V. Cole; Clarke v. Hall ; State v. Ridgely, supra. G. 
 
 In New Hampshire a conviction of a crime in another State is not admissible 
 in evidence for the purpose of impeaching the credit of a witness. But a con- 
 viction in another State of a crime which, by the laws of such State, disqualifies 
 the party from being heard as a witness, and which, if committed in New 
 Hampshire, would have operated as a disqualification is sufficient to exclude 
 liim from testifying there, in the same manner as if it had been committed and 
 the conviction had taken place in their jurisdiction : Chase v. Blodgeit, 10 N. 
 n. 22. See Uhl v. Comm., 6 Grattan 706 ; Campbell v. State, 23 Ala. 44. 
 
 As to what crimes are infamous see State v. Keyes, 8 Vt. 57 ; Koller v. Firth, 
 2 Penn. 723 ; Comm. v. Rogers, 7 Mete. 500 ; Comm. v. Keith, 8 Mete. 531 ; Car- 
 penter v. Nixon, 5 Hill 260 ; Free v. State, 1 McMull. 494; Deer v. State, 14 Mo. 
 348 ; Comm. v. Dane, 8 Ciish. 384 ; Hoiightaling v. Kelderhouse, 1 Parker, C. R. 
 241 ; Poage v. State, 3 Ohio (N. S.) 229 ; Lyford v. Farran, 11 Fos. 314; State 
 V. [Randolph, 24 Conn. 363. See ante, p. 22, note 1.
 
 INFAMY — INTEREST. 119 
 
 lejial, certain, and immediate interest, *however minute, in ^ 
 
 . r ii9n 
 
 the result of the cause, or in the record as an instrument of "- -' 
 evidence, acquired without fraud. ^ 
 
 Where actual gain or loss would result, simply and immediately 
 from the verdict and judgment, the witness was deemed incompetent 
 by reason of his interest ; as, Avhere he was a party, though but a 
 nominal party, to the suit f or was a party in beneficial interest ;^ or 
 quasi a party, from having entered into a rule of court or contract 
 that another cause, to which he was a party, should abide the same 
 result with that in which he proposed to give evidence ;' and, indeed, 
 wherever the direct effect of the executed judgment, as contradis- 
 tinguished from its efficacy in establishing or evidencing any other 
 right or claim, or for any other collateral purpose, would be 
 to produce *some benefit, or work some prejudice to the pro- 
 posed witness." 
 
 [*120] 
 
 *■ As in the case of guardian of a minor, or governor of the poor, who is in the 
 first instance liable to costs : H. v. St. Mary Magdalen, 3 East 5. Trustees 
 empowered as a public body to sue and to be sued in the name of their treasurer, 
 but to be deemed the plaintiffs, were not, it seems, competent witnesses for the 
 plaintiff in an action so brought: Whitmore v. Wilks, M. & M. (22 E. C. L. K.) 
 214; and 3 C. & P. (14 E. C. L. R.) 3(34. 
 
 ° It will be presumed that the action is brought by the direction of the party 
 beneficially interested. In an action on a policy of insurance, brought in the 
 names of the brokers, it appeared that A, one of the parties for whose benefit 
 the policy was efiFected, had before the action released to the plaintiffs all actions 
 which he might have under the policy, and also that since the action two persons 
 to whom the whole interest on the policy had been assigned, had, under an 
 order of the Court of C. P., indemnified the plaintifi" against all costs, and A was 
 tendered and examined as a witness for the plaintiffs on the trial : held, on error, 
 that as the action had been brought in the name of the brokers for A.''s benefit, 
 it must, until the contrary be shown, be presumed it was brought by him and by 
 his authority, and if so, he became and remained still liable to the attorney 
 employed to bring it, nothing having been done to deprive the attorney of his 
 rights to recover costs from him ; he was therefore improperly admitted to give 
 evidence, and a venire de novo was awarded : Bell v. Smith, 5 B. & C. (11 E. C. 
 L. R.) 188. 
 
 * Forrester v. Pigou, 1 M. & S. 9. 
 
 " Marleijs v. Drarjton, 2 T. R. 496 ; Yardley v. Arnold, 10 M. & W. 141 ; 
 Righy v. Walthew, 5 Dowl. 527. 
 
 ^ But a person interested in the event is competent, when called on to give 
 testimony contrary to his interest : Jackson v. Vredenhurgh, 1 Johns. R. 159. A 
 witness interested to diminish certain admitted items, in the plaintiff's account, 
 is still a competent witness to disprove other items : Smith v. Carrington, 4 
 Cranch 62. G. 
 
 9
 
 120 OBJECTIONS IN EXCLUSION OP WITNESSES. 
 
 The next class of cases was where the witness was so situated that 
 a legal right or liability, or discharge from liability," would imme- 
 diately result. As where the witness had indemnified a party against 
 the result generally •/ or was bail for the defendant;^ or was a copart- 
 ner with him in the subject-matter of the suit, and would be liable to 
 contribution in case the defendant failed in his defence.* 
 
 It seems that, in general, where a witness was jyrimd facie liable 
 to the plaintiff in respect to the cause of action for which he sued, he 
 was not a competent witness for the plaintiff to prove the defendant's 
 liability. For his evidence tended to produce payment or satisfaction 
 to the plaintiff at another's expense ; and the proceeding and recov- 
 ering against another would afford strong, if not ^conclusive 
 
 r*i2ii . ... . . 
 
 L *^ -I evidence against the plaintiff in an action against the witness. 
 Thus it was held, that where the witness yfa,s jprimd facie liable to the 
 vendor of goods Avhich he had purchased in his own name, he was not 
 a competent witness for the vendor against a third person to prove 
 that the defendant was either solely*" or jointly" liable for the goods; 
 for in such case the witness had a direct interest in causing another, 
 either to pay or contribute to the payment of the debt.** * So where 
 
 ^ Bland v. Ansley, 2 N. R. 331. In replevin by an under-tenant against a 
 landlord, who, towards discharging the rent due from his tenant, distrained as 
 bailiff of his tenant for the amount of rent due from the under-tenant to the ten- 
 ant: it -was held, that the tenant was not a competent witness to prove the amount 
 of rent due from the under-tenant : Uptoii v. Curtis, 1 Bing. (8 E. C. L. R.) 210 ; 
 Hartshorne v. Watison, 4 Bing. N. C. (33 E. C. L. R.) 477 ; Wedgworth v. Hartley, 
 10 A. & E. (37 E. C. L. R.) 619. 
 
 y See infra, p. 131, note (e). 
 
 ^ 1 T. R. 164 ; Bayley v. Hole, ?> Car. & P. (14 E. C. L. R.) 560 ; Piesley v. Von 
 Esch, 2 Esp. C. 60.5 ; Fearcy v. Fleming, 5 Car. & P. (24 E. C. L. R.) 503. 
 
 » Hall V. Cecil and Bex, 6 Bing. (19 E. C. L. R.) 181 ; Simons v. Smith, 1 Ry. 
 & M. (21 E. C. L. R.) 29 ; Cheyne v. Koops, 4 Esp. C. 112 ; Fcans v. Yeatherd, 
 2 Bing. (9 E. C. L. R.) 133. So where a co-defendant in assumpsit let judgment 
 go by default, he was an incompetent witness for his co-defendant: Brown v. 
 Brown, cited by Dallas, .J.. 8 Taunt. (4 E. C. L. R.) 141 : and see the observa- 
 tions in 3fant v. Mainicaring, 8 Taunt. (4 E. C. L. R.) 139. 
 
 Where two partners being sued on a bill as endorsees, one pleaded his dis- 
 charge by bankruptcy and certificate, and a non-pros, was entered as to him ; it 
 was held, that he was tin admissible witness for his co-defendant : Afialo v. Four- 
 drinier, 6 Bing. (19 E. C. L. R.) 306 ; and see Moody v. King and Porter, 2 B. 
 L C. (9 E. C. L. R.) 558. 
 
 '■ Machrain v. Fortune, 3 Camp. 317. 
 
 " Ripley v. Thompson, 12 Moore (22 E. C. L. R.) 55. 
 
 " Hodson V. Marshall, 7 C. & P. (32 E. C. L. R.) 16. 
 
 ' Where A., an agent, whose principal B. is unknown at the time of the trans- 
 action, deals witli and makes a contract of sale in his own name with C. ; in an
 
 INTEREST. 121 
 
 a witness called by the defendant had undertaken to indemnify him 
 against the -whole or part of the damages or costs.® And a principal 
 was not a competent Avitness for his surety.' 
 
 So where the issue involved any breach of duty, or default, in re- 
 spect of which the witness would be liable over to the party calling 
 him. Such a witness, for whichever party called, was obviously 
 interested in protecting himself against the consequences of failure, 
 by procuring a verdict to pass for the party who called him. Al- 
 though guilty of misconduct, the record would conclusively show 
 that the party calling him had received no prejudice, so far as that 
 cause was concerned. If called for the defendant, he would also be 
 interested in obtaining a verdict for him, and to exclude a record, 
 which would be evidence against himself as to the amount of conse- 
 quential damage in an action afterwards brought against him by his 
 party. 
 
 Where the party employed Avas the actual agent who 
 ""transacted the business of the principal, he was competent ^ '^"'-' 
 on the score of necessity f but although an agent who actually exe- 
 cuted the business of the principal was, in all cases, competent to 
 prove that he acted according to the directions of his principal, on 
 the ground of necessity, and because the principal could never main- 
 tain an action against his agent for acting according to his own 
 directions, whatever might be the result of the cause,^ yet if the cause 
 
 * Where several parishioners at a vestry signed a resolution, approving of law 
 proceedings against surveyors of the highways, and guaranteeing to the plaintiff 
 the legal expenses ; held that it was a personal liability, and rendered them in- 
 competent: Heudebourck v. LaiKjley, 3 C. &, P. (14 E. C. L. R.) 556; Edmonds 
 V. Lowe, 8 B. & C. (15 E. C. L. R.) 407. 
 
 ^ Secus where the principal had been discharged by his bankruptcy and cer- 
 tificate : Moody V. King, 2 B. & C. (9 E. C. L. R.) 559-, see Tomnend v. Down- 
 ing, 14 East 565. 
 
 8 Adams v. Davis, 3 Esp. C. 48 ; Matthews v. Haydon, 2 Esp. C. 509 ; and per 
 Lord Kenyon [ibid.), it is the constant course at Nisi Prius, ex necessitate rei, 
 to admit the evidence of clerks and porters who were alone privy to the receipt 
 of money or the delivery of goods : Spencer v. Goulding, Peake's C. 129 ; Baker 
 V. Macrae, 3 Camp. 144 ; B. N. P. 289 ; and see Ilderton v. Atkinson, 7 T. R. 
 480; Evans v. Williams, 7 T. R. 481, n. ; Theobald v. Treggott, 11 Mod. 261, 
 cor. Holt, C. J. 
 
 ^ Morish v. Foote, 8 Taunt. (4 E. C. L. R.) 454. See the observations of 
 Mansfield, C. J., in De Symonds v. De la Cour, 2 N. R. 374. 
 
 action by C. against B. on such contract, A. is not a competent witness for the 
 plaintiff to prove the agency and the contract without a release from C. : Hick- 
 ling v. Fitch, 1 Miles 208 ; Christy v. Smith, 23 Vt. 663.
 
 122 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 depended upon tbo question Avlietlier the agent had been guilty of 
 some tortious act, or some negligence in the course of executing the 
 orders of the principal, and in respect of which he would be liable 
 over to the principal if he failed in the action, the agent was not com- 
 petent without a release/' 
 
 A witness was also incompetent where the record would, if his party 
 succeeded, be evidence of some matter of fact to entitle him to a legal 
 advantage, or repel a legal liability.'' 
 
 Of the witnesses thus inadmissible by the common law, one whole 
 class, namely those who were excluded by having an interest in the re- 
 cord as an instrument of evidence, were rendered competent by the 
 Stat. 3 & 4 Will. IV., c. 42.2 
 
 *That statute,^ in order to render the objection of witnesses 
 L " -• on the ground of interest less frequent, enacted that " if any 
 witness should be objected to as incompetent on the ground that the 
 verdict or judgment in the action on which it should be proposed to 
 examine him Avould be admissible in evidence for or against him, 
 such witness should nevertheless be examined ; but in that case a 
 
 ' Rothero v. Elton, Peake's C. 84; Miller v. Falconer, 1 Camp. 251. 
 
 " Bent V. Baker, 3 T. R. 27 ; Smith v. Prager, 7 T. R. 60 ; Abraham v. Bunn, 
 4 Burr. 2251. A copyholder was incompetent to prove a customary right in the 
 manor for copyholders to take timber for repaii'S without assignment of the lord : 
 Lady de Fleming v. Simpson, 2 M. & R. (17 E. C. L. R.) 164. 
 
 ' Sect. 26. 
 
 ^ Nothing is better settled, than that the cases of agents, carriers, factors and 
 other servants of this description constitute a class of special exceptions to the 
 general rule that a witness interested in the subject of the suit is not competent 
 to testify on the side of his interest. And this principle is extended to every 
 species of agency or intervention by which business is transacted, unless the 
 case is overborne by some other rule : Collins v. Lester, 16 Geo. 410 ; Perkins v. 
 Jordan, 35 Me. 23 ; Gaijle v. Bishop, 14 Ala. 552 ; Governor v. Gee, 19 Ala. 199. 
 See also, Scott v. Jester, 8 Engl. 437. In an action against employers founded 
 on the imputed negligence of their agent, the testimony of the latter for de- 
 fendant was excluded, on the ground of interest in defeating the action ; for 
 although in an action against him by the employers, the record would not be 
 evidence to establisli his misconduct, it would be admissible to establish the 
 quantum of damages: Gas IJght Co. v. City Council, 9 Rich. Law (S. C.) 342; 
 Middkkavffv. Smith, 1 Md. 329; McClure v. Whiteside, 2 Cart. 573; Pendall 
 v. licnch, 4 McLean 259 ; Howe v. Wade, 4 Ibid. 319 ; State v. Halloway, 8 
 Blackf. 45. When the defence to an action is based on a breach of duty on the 
 part of the plaintiflT's agent, he cannot be called to disprove such defence : Finn 
 Vallag/i Street Wharf Co., 7 Cal. 253. See ante, p. 27, note 1. 
 
 ' Ah to the statutory enactments in the United States on the subject of the 
 coiiii)etoricy of witnesses, see ante, p. 2S, note 1.
 
 INTEREST, LIABILITY OVER, 123 
 
 verdict or judgment in that action in favor of the party on whose 
 behalf he should have been examined should not be admissible in 
 evidence for him, or any one claiming under him, nor should a ver- 
 dict or judgment against the party on whose behalf he should have 
 been examined be admissible in evidence against him, or any one 
 claiming under him." 
 
 This enactment appears to have been founded upon the principle 
 of rendering a witness competent, by removing the interest which 
 would otherwise have disqualified him. The legislature seems not 
 to have contemplated the admitting of the testimony of a witness in 
 violation of the original principle of exclusion from interest, but, 
 preserving that principle inviolate, to have intended to enlarge the 
 limits of avail ible evidence by the actual removal of interest, which 
 previously impeded its reception. This was proposed to be done by 
 silencing the record in certain cases, and so removing any interest 
 under which the witness might otherwise labor either to procure a 
 verdict and judgment, which would be evidence for him, or to pre- 
 clude a verdict and judgment, which would be evidence against him. 
 Consistently with this principle, the competency of a witness would 
 not appear to have been meant to be restored in any case where, 
 although the record were silenced, he would still have an interest, 
 independently of the use of the record as evidence, in some other 
 proceeding resulting as a consequence from the verdict and judg- 
 ment. 
 
 *With reference to the decisions on this statute: It seems r*-|9i-i 
 to have been considered from the first that the statute 
 always rendered a witness competent in the last class of cases men- 
 tioned above, in which the sole objection was that the record would 
 be evidence as to a matter of fact, e. g. a custom,™ in which the 
 witness had an interest. And, according to the latter construction 
 given to it, the operation of the statute seems to have embraced all 
 cases where the verdict and judgment could be used by or against 
 him, either as evidence, or to establish any right, or to discharge 
 him from any liability, and where it would be necessary to use the 
 record for that purpose."^ These decisions proceeded upon the 
 
 "" A copyholder was held competent to prove a custom of the manor on behalf 
 of another copyholder : Hoijle v. Coupe, 9 M. & W. 450 ; Stuart v. Barnes, 1 M. 
 & Rob. 472. 
 
 " Ycomans v. Legh, 2 M. & W. 419 ; Faith v. MIntyre, 7 C. & P. (32 E. C. L. 
 R.) 44 ; Knight v. Woore, 7 Car. & P. (32 E. C. L. R.) 259. But in an action 
 by a corporation to establish a right of common for the benefit of the corpora- 
 tion, a corporator was not rendered competent by 3 & 4 Will. IV. c. 42 : God- 
 manchester [Bailiffs of) v. Phillips, 4 Ad. & E. (31 E. C. L. R.) 550.
 
 124 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 ground that the effect of calling the witness being effectually to 
 silence the record, since neither the existence of the action nor the re- 
 sult could be proved but by the record, the witness's interest would be 
 as much extinguished as if no such proceeding had taken place. 
 
 Still this act only removed the objection where the witness was 
 incompetent, on the ground that "the verdict or judgment in the 
 action on which it was proposed to examine him, would have been 
 admissible in evidence for or against him." It did not extend 
 beyond this, and the witness was still incompetent if he labored 
 under any interest independently of the record, or he could avail 
 himself of the verdict indirectly, without the production of the 
 record. Thus it was held that the statute did not apply where the 
 issue was directed by a court of equity, for in such a case the wit- 
 r^].^--\ ness, notwithstanding the statute, *would be able to take 
 advantage of a decree founded on the verdict." 
 
 The next important step upon the subject of evidence was taken 
 at the instance of Lord Benman. The stat. 6 & 7 Vict. c. 85, after 
 reciting " that the inquiry after truth in courts of justice is often 
 obstructed by incapacities created by the present law ; and it is 
 desirable that full information of the facts in issue, both in criminal 
 and civil cases, should be laid before the persons who are appointed 
 to decide upon them, and that such persons should exercise their 
 judgment on the credit of the witnesses adduced, and on the truth of 
 their testimony;" proceeded to enact, " that no person offered as a 
 witness shall hereafter be excluded by reason of incapacity from 
 crime or interest from giving evidence ; but that every person so 
 offered may and shall be admitted to give evidence on oath or solemn 
 affirmation, notwithstanding that such person may or shall have an 
 interest in the matter in question, or in the event of the trial of any 
 issue, matter, question, or inquiry, or of the suit, action or pro- 
 ceeding in which he is offered as a witness, and notwithstanding that 
 such person offered as a witness may have been previously convicted 
 of any crime or offence ; Provided that this act shall not render 
 competent any party to any suit, action, or proceeding individually 
 named in the record ; or any lessor of the plaintiff, or tenant of 
 premises sought to be recovered in ejectment ; or the landlord or 
 other person in whose right any defendant in replevin may make 
 cognizance ; or any person in whose immediate and individual behalf 
 any action may be brought or defended, either wholly or in part ; 
 
 ° Stuart V. Barnes, ] M. & llol). 472 ; and sec Olirer v. Latham, 1 Turn. & Ph. 
 1G;; ; liarljcr v. Birch, G M. et G. (46 E. C. L. R.) ^O?.
 
 INTEREST — 3 & 4 WILL IV. C. 42. 125 
 
 or the husband or wife of such persons respectively," It also en- 
 acted, " that in courts of equity any defendant to any cause pending 
 in any such court may be examined as a witness on behalf of the 
 plaintiff, or of any co-defendant in any such cause, saving just 
 exceptions; "''and that any interest which such defendant r*-|.-?^n 
 so to be examined may have in the matter or any of the 
 matters in question in tlie cause shall not be deemed a just excep- 
 tion to the testimony of such defendant, but shall only be considered 
 as affecting, or tending to affect the credit of such defendant as a 
 witness." 
 
 This statute likewise contains a provision, which is repeated in 
 the subsequent Act we shall have presently to consider, viz., that 
 it should not repeal the Act 7 Will. IV., and 1 Vict. c. 26, for the 
 amendment of the Law relating to Wills. 
 
 Up to the period of this enactment it has been remarked that the 
 principle of the exclusion of interested witnesses in the superior 
 courts had been rigidly adhered to. The immediately preceding 
 statute, in rendering the Avitness competent by reason of the extinc- 
 tion of his interest involved the introduction of no new princi- 
 ple, inasmuch as it merely adopted an expedient frequently resorted 
 to by the parties through the medium of a release given to, or by 
 the witness. But this enactment had a far wider scope, for it posi- 
 tively abrogated the general rule that an interested person should 
 not be a witness. Yet it must be observed that even then the 
 legislature by no means wholly disregarded the principle of the 
 exclusion of a witness on the ground of interest. The various ex- 
 ceptions to the general provision still recognized its expediency ; but 
 their effect was to confine its operation to the five categories men- 
 tioned in the proviso. With respect to these it is important to notice 
 that the statute did not render the persons included within them 
 incompetent, but merely excepted them out of its operation ; conse- 
 quently they remained unaffected by the statute, and in the same 
 condition as to admissibility as they were before it passed. Hence 
 it becomes important, with a view more especially to the first and 
 last exception, to ascertain under what circumstances those persons 
 were previously incompetent as witnesses, and we *will r*-|.77T 
 proceed to consider what persons fell within the words of 
 these exceptions, and in what cases they were previously incompetent 
 in the following order. 
 
 1st. "A party to any suit, action, or proceeding individually 
 named in the record," was always, except in the peculiar case of
 
 127 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 necessity, P an incompetent witness in his own behalf, on the ground 
 of interest.*^ ^ But parties named upon the record were not as such, 
 and on that account, incompetent ; their incompetency arose exclu- 
 sively from their interest, and if they Avere willing to give evidence 
 they might be called by the opposite parties. Thus, in an action on 
 a joint bond against the principal and two sureties, where one surety 
 and the principal had suffered judgment by default, and the other 
 surety defended, the principal was held to be a competent witness 
 
 *for the plaintiff;'' and so was a co-defendunt in an action 
 r*l281 ... 
 
 '- " -• for a malicious prosecution, who had suffered judgment by 
 
 P See ante, p. 27. 
 
 •1 Though he were only a trustee, he was incompetent, because he would be 
 responsible for the costs : Bauerman v. Radenius, 7 T. R. 663. So in equity 
 one plaintiff could not be examined for another plaintiff without the defendant's 
 consent: Fyler v. Newcomh, 19 L. J. C. C. 278. And one defendant could not 
 be examined for another defendant in the same interest : Wood v. Rowcliffe, 6 
 Hare 183 ; but see Monday v. Giti/er, 1 De Gex and Smale 182. 
 
 It should perhaps be stated here that there were some statutory provisions 
 enabling parties to give evidence in their own behalf, besides the recent County 
 Courts Act, 9 & 10 A'ict. c. 95, s. 83, which directs that the parties or their wives 
 may be examined in those Courts. Thus under the Companies Clauses Consoli- 
 dation Acts, and the Lands and Railway Clauses Consolidation Acts, 8 & 9 Vict, 
 c. 16, s. 132; 8 & 9 Vict. c. 18, s. 32 ; 8 & 9 Vict. c. 20, s. 133, parties might be 
 examined by the arbitrators, or by arbitrators appointed to settle disputes be- 
 tween masters and workmen, 5 Geo. IV. c. 96, ss. 5, 6. Trustees and other 
 members of loan societies, under 3 & 4 Vict. c. 110. Officers of the army and 
 navy, and marines, and of the customs and excise, under 3 & 4 Will. IV. c. 53, 
 in suits which entitle them to the penalties sued for or goods seized. As to in- 
 habitants, or persons rated or rateable, or holding office in any parish, &c., in 
 matters relating to rates, boundaries, removals, &c., see 53 Geo. III. c. 70, s. 9; 
 and 3 & 4 Vict. c. 26 ; and infra, note (e). 
 
 ■■ Worrall v. Jones and another, 7 Ring. (20 E. C. L. R.) 325 ; overruling Chap- 
 man V. Graves, 2 Camp. 333, n. ; and see per Maule, J., 5 C. B. (57 E. C. L. R.) 
 685. 
 
 ^ There are some cases in which a plaintiff is ex necessitate a good witness as 
 1. To prove notices in the course of the cause : Fred v. Eves, 4 Ilarring. 385 ; 
 Siltzell V. Michael, 3 W. & S. 329 ; Jordan v. Cooper, 3 S. & R. 564. 2. To prove 
 his own book of original entries : Prince v. Smith, 4 Mass. 455 ; Poultney et al. 
 V. Ross, 1 Dall. 239. 3. To prove the loss of documents to let in secondary evi- 
 dence : Fitch v. Bogue, 19 Conn. 285; Chamberlain v. Gorham, 20 Johns. 144. 
 4. In an action against a carrier or innkeeper for the loss of his baggage to 
 prove the contents of his trunk : Taylor v. Monnat, 4 Ducr 116; Wriyht v. Cald- 
 well, 3 Mich. 51 ; Lamplei/ v. Scott, 24 Miss. 528 ; Sparr v. Wcllman, U Mo. 230 ; 
 County v. Leidy, 10 Barr 45, See ante, p. 28, note 1.
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTION 1. 128 
 
 default/ * There had been a similar decision in the case of a co- 
 contractor who, having suffered judgment by default, was held to be 
 an admissible witness for the plaintiff, if he were not interested in 
 procuring a verdict for him.' And a defendant in an indictment, 
 who had pleaded guilty, has been held by the judges to be an admis- 
 sible witness for the Crown on the trial of other parties included 
 in it." 
 
 » Eaddrick v. Heslop, VI Q. B. (64 E. C. L. R.) 267 ; B. N. P. 285 ; 1 Sid. 
 441. 
 
 * Pipe V. Steel and another, 2 Q. B. (42 E. C. L. R.) 733 ; Dresser v. Clarke, 1 
 C. & K. (47 E. C. L. R.) 569— overruling Brown v. Broion,A Taunt. 752; Green 
 V. Sutton, 2 M. & Rob. 269 ; Mant v. Mainwaring, 8 Taunt. (4 E. C. L. R.) 139, 
 
 " Reg V. Hinks, 2 Car. & K. (61 E. C. L. R.) 462; Reg v. George, Car. & M. 
 (41 E. C. L. R.) 111. "Where an accomplice is to be called as a witness, the 
 usual course is to leave him out of the indictment ; see tit. Accomplice ; or if he 
 has been inadvertently included in the indictment, should it be deemed necessary, 
 an acquittal might be taken as to him, or the Attorney-General might enter a nolle 
 prosequi : Ward v. Ma^t, 2 Atk. 229, by Lord Hardwicke, who said, that in Crown 
 prosecutions, no defendant can be examined on behalf even of the King, but 
 the Attorney-General enters a nolle i^rosequi against that particular defendant 
 before he can be admitted as a witness ; and that this was done in a case by 
 Trevor, when Attorney-General. See also the case of The King v. Ellis, Blake 
 and others, Sitt. after Trin. 1802, Macnally 55 ; where on an information by the 
 Attorney-General (Law) against several for a conspiracy, he entered a nolle pro- 
 
 ^ Manchester Bank v. Moore, 19 N. H. 564 ; Parsons v. Phipps, 4 Tex. 341. 
 One of two defendants, consenting to be sworn, though objected to by the 
 other defendant, is a competent witness for the plaintiff: Carrie v. Calder, 6 
 Rich. 198; Kincaid v. Purrell, 1 Cart. 324; Thompson v. Blanchard, 4 Cbmst. 
 303 ; Miner v. Downer, 20 Vt. 461. A witness interested by having warranted 
 a title, is competent to impeach it, he then testifying against his interest : Rohb 
 V. Lefevre, 7 Clarke 150 ; Stewart v. Chadwick, 8 Clarke 463 ; Clinton v. Estes, 
 20 Ark. 216. When the title to property is in controversy, a person who is 
 bound to make it good to one of the litigating parties against the claim of the 
 other is identified in interest with that party and cannot testify in his favor : 
 Meek V. Walthall, 20 Ark. 648 ; Wright v. Bonta, 19 Tex. 385. Merely being a 
 party to the record, does not, of itself, render the party incompetent to testify, 
 when called for that purpose, by the opposite party ; if willing to testify he is 
 competent, notwithstanding the objection of his co-plaintifif or co-defendant, 
 provided his interest, if any in the suit, is adverse to the party calling him : 
 Ware v. Bennett, 18 Tex. 794. A stockholder, who transfers his stock after the 
 commencement of a suit, is a competent witness for the corporation : Smith v. 
 Tallahassa Branch, 30 Ala. 650 ; Tuolumne Co. v. Columbia Co., 10 Cal. 193. 
 A member of the society of free-masons is a competent witness for the society, 
 which is a charitable organization : Burdin v. Grand Lodge, 1 Ala. Sel. Cas. 385. 
 When parties are made witnesses, they must testify, subject to the same rules 
 as other witnesses: Wheelden v. Wilson, 44 Me. 11.
 
 129 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 *A party likewise who had ceased to be interested in the 
 
 r*i29i X -^ 
 
 •- -• result might be called by his co-plaintiff, or co-defendant. 
 Thus, in an action against two partners as acceptors of a bill of ex- 
 change, one of the defendants who had pleaded his bankruptcy and 
 certificate, whereupon the plaintiff had entered a nolle jjrosequi against 
 him, was held,^ after releasing his surplus, to be an admissible witness 
 for his co-defendant. So where several were indicted together, one 
 defendant, as to whom a nolle prosequi had been entered, might be 
 called as a witness for the other defendants ; and so might one Avho 
 had pleaded guilty, or one who was not arraigned '/ unless indeed 
 
 sequi against two, who were examined as witnesses against the others. And in 
 
 B. N. P. 285, it is said that the court would not allow the Attorney-General on 
 the trial of an information for a misdemeanor, to examine a defendant for the 
 King, without entering a nolle j^rosequi as to him. But qucere, whether in that 
 case the witness had not been put upon his trial at the same time? and see note 
 (Z), post. But yet although he be jointly indicted for an offence which is several 
 in its nature, it may be doubted whether he be not still competent, provided he 
 be not put upon his trial at the same time ; for though several be indicted jointly 
 for the same ofiFence, yet the indictment, where the nature of the offence is several, 
 is also several as to each, and the case seems to be just the same as if each had 
 been severally indicted, when they would have been witnesses for each other (2 
 Hale 280, 2 Roll. Abr. 685, pi. 3) ; they must therefore, as it seems, be also 
 equally competent as witnesses against each other. 
 
 ^. Aflalo V. Fourdrinier, 6 Bing. (19 E. C. L. R.) 306 ; Moody v. Kinr/, 2 B. & 
 
 C. (9 E. C. L. R.) 558. 
 
 y See tit. Accomplice. In R. v. Lafone, 5 Esp. C. 154, on an indictment for 
 obstructing excise officers. Lord Ellenborough would not permit co-defendants, 
 who had suffered judgment by default, to be examined as witnesses for the de- 
 fendant who was tried, saying, that he had never known such evidence admitted 
 on an indictment for a joint offence. The cases on the subject were not, it seems, 
 adverted to on that occasion. In E. v. Fletcher, Str. 633, one who had suffered 
 judgment by default on a joint indictment for an assault, and having been fined 
 a shilling and had paid it, was admitted as a witness for the other defendant. 
 There indeed the witness had been fined ; but it is difficult to see how the cir- 
 cumstance, that the judgment has been pronounced and executed on the witness, 
 can make any difference as to his competency, or how his giving evidence can at 
 
 ' There are conflicting decisions in the United States as to whether a party, 
 plaintiff, by assigning his claim and making an absolute payment into court of a 
 sum of money sufficient to meet all the costs of the suit, can be a competent 
 witness to establish the claim, having thus divested himself of all interest : 
 Central It. It. Co. v. Ilines, 19 Geo. 203 ; Folci/ v. Mason, 6 Md. 37 ; Owings v. 
 Emery, 7 Gill. 405 ; Patterson v. Cohb, 4 Fla. 481 ; Bridges v. Armour, 5 How. 
 91; Evans v. Gibbs, 6 Humph. 405; Benjamin v. Coventry, 19 Wend. 353; 
 Willing v. Consequa, Peters C. C. 248 ; Steele v. Phmnix Ins. Co., 3 Binn. 306 ; 
 Hart V. Ilellner, 3 Rawle 407 ; Pc^t v. Avery, 5 W. & S. 510 ; Wolfx. Fink, 1 
 liarr 173 ; Park v. Bird, 3 Barr 361 ; Norris v. Johnston, 5 Barr 290.
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTION 1. 130 
 
 in cases, such as *conspiracy or riot, where disproving joint r*i on-i 
 guilt might defeat the prgsecution even against the witness 
 himself. 
 
 But where a party on the record was interested on the side of the 
 person who called him, he was not admissible. Thus in an action of 
 assumjjsit one defendant, who had suffered judgment by default, was 
 not an admissible witness for another defendant in the action who 
 had pleaded the general issue, for if he disproved the joint contract 
 he would relieve himself;^ and so a defendant in trover or trespass, 
 who had suffered judgment by default, was not an admissible Avitness 
 for a co-defendant who had pleaded, where the jury were summoned 
 to assess the damages as well as to try the issue joined by the one who 
 defended, for he had an interest in reducing the damages.^ ^ 
 
 all alter and aifect his legal situation. It has been held, that upon several in- 
 dictments against three for perjury in provino; a bond, each was a witness for 
 the others : E. v. Bilinore, Gray and Harbin, 2 Hale 280 ; and see also Gunston 
 V. Dotcns, Ibid, and 2 Rol. Abr. 6S5. pi. 3. According to the same principle, if 
 each had been separately indicted for a battery or larceny, the others would 
 have been competent witnesses ; for the same reason applies which is given by 
 Lord Hale, viz., that they are not immediately concerned in the trial against 
 the third, and therefore they would, it should seem, be also competent, although 
 they were all to be included in one indictment, which in legal effect operates as 
 a several indictment as to each ; see R. v. Frederick and Tracy, Str. 1095, Avhere 
 upon an indictment against several for an assault, the reason for refusing to 
 admit the wife of one as a witness for another defendant, was, that it was im- 
 possible to separate the case of the two defendants : R. v. Sherman, C. T. H. 
 303. It has indeed been suggested, that if one who suffered judgment by de- 
 fault were a competent witness, one defendant, by so doing, might protect the 
 rest (5 Esp. C. 155) ; assuming it to be probable that one of several delinquents 
 would sacrifice himself for the salvation of the rest, it would by no means be a 
 necessary consequence that he would be able to screen them ; his credit would 
 be open to the observation of the jury, and be subject to much suspicion. Where, 
 however, the offence is of such a nature, that an acquittal of his associates 
 would enure to his own discharge a co-defendant would be incompetent. Thus 
 an accessory before or after the fact would be incompetent as a witness for the 
 principal ; and see tit. Conspiracv. Where several are indicted and tried 
 together, if at the close of the prosecutor's case there appears to be no evidence 
 against one defendant, the judge. will direct his acquittal, in order that he may 
 be called as a witness by another defendant : R. v. Fraser, Macnally 56 ; R. v. 
 Oioen, 9 Car. & P. (38 E. C. L. R.) 83. 
 
 ^ Brotvn v. Fox, 1 Phil, on Evid. 9th ed. 49 ; Bell v. Banks, 3 M. & G. (42 E. 
 C. L. R.) 261. 
 
 "Mash V. Smith, 1 Car. & P. (12 E. C. L. R.) 577 ; per Burroughs, J., Webber 
 V. Budd, Rose, on Evid. 121, 7th ed. ; and so even after the statute 6 & 7 Vict. 
 c. 85 ; Thorpe v. Barber and another, 5 C. B. (57 E. C. L. R.) 675. 
 
 ^ Thornton v. Blaisdell, 37 Me. 190; King v. Lowry, 20 Barb. 532; Rice v. 
 Morton, 19 Mo. 263 ; Chase v. Lovering, 7 Fost. 295. See Barker v. Ayres, 5
 
 131 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 *Under this statute, therefore, a party to the record might 
 
 r*i3ii • • ^ I J ... 
 
 L -J still be examined as a witness wherever he was indifferent or 
 was called upon to be such adversely to his own interest. It is true 
 that there might be no compulsion*" upon him to attend, there being 
 no instance in which the court ever punished a party to the suit for 
 non-attendance or a refusal to give evidence as a witness, or an action 
 had been brought against him on that account, and hence resort was 
 generally had in such cases to a bill of discovery ; but if he did attend, 
 and was willing to give evidence, there was no rule which enabled the 
 court to reject his testimony. 
 
 Previously to the passing of this statute in an action by or against 
 a corporation or other body, the members of which were not men- 
 tioned by name on the record, a member having any private'' interest 
 in the result was not competent as a witness on behalf of the body 
 on account of that interest.** The interest, however, of such a per- 
 son was obviously very different" from that of an ordinary party, 
 and^ it would seem that the legislature introduced the words, " any 
 party individually named," in contradistinction^ to persons described 
 ^ „^^ by *some no7nen collectivum upon the record, so that a person 
 '- ~-J who is not named "as an individual might not fall within 
 
 ^ Rex V. Wohurn, 10 East 395 ; Fenn v. Granger, 3 Camp. 77 ; Rex v. Adder- 
 hurrj, 5 Q. B. (48 E. C. L. R.) 187. 
 
 •= If he had no private interest, but simply an interest as one of the public, he 
 was competent: Fletcher v. Greenwell, 1 C. M. & R. 754; M^Gahey v. Alston, 2 
 M. & W. 20G ; and see Welter v. The Governors of the Foundling Hospital, 
 Peake 153. 
 
 d B. N. P. 290 ; Davis v. Morgan, 1 Tyr. 457 ; Burton v. Einde, 5 T. R. 174 ; 
 Bailiffs of Godmanchester v. Phillips, 4 Ad. & E. (31 E. C. L. R.) 550. 
 
 * There were various statutes which enable inhabitants and other persons to be 
 witnesses where the proceedings were by or against them in their quasi corpo- 
 rate capacity: 1 Anne, c. 18, s. 13; 8 Geo. II. c. 16, s. 15; 27 Geo. III. c. 29 ; 
 7 & 8 Geo. IV. c. 29 ; and 3 & 4 Will. & M. c. 11 ; 54 Geo. III. c. 170, s. 9 ; 3 & 4 
 Vict. c. 26, ss. 1 and 2. 
 
 ' See R. V. Mayor, dc, of London, 2 Lev. 231 ; 1 Vent. 351. 
 
 8 Per Parke, B., Sinclair v. Sinclair, 13 M. & W. 645. 
 
 Md. 202. In an action not on contract commenced against two and process 
 served on one only, the one not served ceases to be a party, and is a competent 
 witness for either party: Robinson v. Frost, 14 Barb. 536. Ordinarily a joint- 
 tort-feasor is a competent witness for either i)art3% if he be not sued or be sued 
 in a separate action, or being joined liave suU'ored judgment to be rendered 
 against himself: Paine v. Tilden, 20 Vt. 554. When judgment is recovered 
 against two jointly, and it is opened as to one only, who is let into a defence, 
 the other is a competent witness for him, his own liability being determined: 
 Talinage v. Burlijigamc, 9 Barr 21. A co-tref- passer named but not served is 
 competent for tlie other defendants : Entrikcn v. Brown, 8 Gas. 364.
 
 INTEREST — 6 & 7 VICT, C. 85 — EXCEPTION 1. 132 
 
 the exception ; consequently it would appear that a member of a 
 corporation aggregate, or other like body, so far as tliis exception 
 Avas concerned, was rendered a competent witness by the general 
 provision. 
 
 The procliein ami, or guardian of an infant, was formerly incom- 
 petent on the ground of his interest in the cause to save himself from 
 the payment of costs, for which, in case of failure, he Avas personally 
 responsible ; but in construing the words of this exception the Court 
 held, that the person to fall within its terms must be a person who is 
 named as a party to the proceeding, and therefore that a prochein 
 ami, who is in reality only an attorney for the conduct of the suit, 
 might be called as a witness for the infant. *" ^ 
 
 2(lly. " Any lessor of the plaintiff, or tenant of premises sought 
 to be recovered in ejectment," might always have been examined; 
 the former, if he were willing to give evidence,' by the defendant ; 
 the latter, by the jDlaintiff":'' but, inasmuch as the former of these 
 persons had an immediate and direct interest in preventing a verdict 
 for the defendant, both on account of the result which would confer 
 on him the right of possession of the property, and of the liability to 
 costs which would ensue from such a verdict, he was not an admis- 
 sible witness for the plaintiff, although there might be demises by 
 other persons in the declaration.^ So the tenant of the premises 
 was interested in defeating a verdict for the plaintiff, which would 
 turn him out of possession ;" but, as he was not a party to the suit, 
 he might have been subpoenaed on the *part of the plaintiff 
 and forced by him to give his testimony. The effect of the ^ -^ 
 statute was not to exclude these persons from being Avitnesses at all, 
 but simply to leave them incompetent on that side which they were 
 interested in supporting. 
 
 3dly. " The landlord, or other person in whose right any defend- 
 ant in replevin made cognizance," was always an admissible witness 
 
 " Sinclair v. Sinclair, 13 M. & W. 640; Melhuish v. Colhjcr, 19 L. J., N. S., 
 Q. B. 493, 
 
 ' Feme dem. Pewtress v. Granger, 3 Camp. 177. 
 
 " Doe V. Green, 4 Esp. 198. 
 
 ' But if he consented that a verdict should be entered against him, on his de- 
 mise, he might be examined for the other lessors, ^er cur. 2 Ad. & E. (29 E. C. 
 L. R.) 339. 
 
 " Doe dem. Foster v. Williams, Cowp. 621 ; Doe v. Wilde, 5 Taunt. (1 E. C. L. 
 R.) 183; Doev. Bingham, 4 B. & Aid. (6 E, C, L. R.) Doe dem. Willis v. Birch- 
 more, 9 Ad, & E. (36 E. C. L. R.) 662, 
 
 ^ Pryor v, Ei/burn, 16 Ark, 671 ; Murphy v. Murphy, 24 Mo. 526.
 
 133 OBJECTIONS IN EXQLUSION OF WITNESSES. 
 
 for the plaintiff; but he was not an admissible witness for the defend- 
 ant," and yet where distinct cognizances were made under different 
 parties, not appearing to be connected in interest, and the issue on 
 one cognizance was abandoned by the defendant at the trial, the 
 person under whom that cognizance was made, if he did not employ 
 the attorney, was a competent witness for the defence." But, since 
 the passing of this statute, in a case where the defendants made cog- 
 nizance, first as bailiffs to J. and F. M'Gowan, and secondly, as 
 bailiffs to J. M'Gowan alone, and no evidence was offered in support 
 of the first cognizance, and it was proposed to abandon it and call F. 
 M'Gowan in support of the second to prove a fact alleged therein, 
 and not in issue upon the first, it was held under this clause by Alder- 
 son, B., (after consulting Lord Denman, C. J.,) that the evidence 
 of F. M'Gowan was not admissible.^ And where the taking was jus- 
 tified in several cognizances under different persons, and one of them 
 was admitted by Wilde, C. J.,** to prove matters distinct from and in- 
 dependent of the subject-matter of the cognizance made under him ; 
 the Court of Common Pleas afterwards expressed a clear opinion that 
 his evidence was inadmissible, while the cognizance made under him 
 remained '"upon the record as part of the effective title 
 L -^ claimed on the part of the defendants." 
 
 4thly. "Any person in whose immediate and individual behalf any 
 action may be brought or defended either wholly or in part." This 
 was the great exception in this enactment, and from the generality of 
 its terms and the consequent wideness of its operation it led to much 
 discussion. The only ground on which persons in the predicament 
 pointed out in this exception were inadmissible as witnesses before 
 Lord Denman s Act was, that they were interested on the side on 
 which their testimony was proposal to be given, ^ and under the 
 operation of this statute, that circumstance was still the only ground 
 of exclusion. If, therefore, they were called adversely to their own 
 interest, or their interest when they were called to support it was re- 
 moved by means of a release, or the objection could be met by the 
 provisions of the statute 3 & 4 Will. IV. c. 42, they became admissible. 
 
 In treating upon this branch of the enactment it will perhaps be 
 
 ° Golding v. Nias, 5 Esp. 272 ; Upton v. Curtis, 1 IJing. (8 E. C. L. R.) 210. 
 " Khuj V. Baker, 2 Ad. & E. (29 E. C. L. R.) 333. 
 
 I" Girdleslone v. McGowan, 1 Car. & K. (47 E. C. L, R.) 702. But in this case 
 King v. Baker, 2 Ad. & E. (29 E. C. L. R.) 333, was not referred to. 
 Walker v. Giles, 2 Car. & K. (01 E. C. L. R.) 671. 
 ' Walker v. Giles et al., C. B. (60 E. C. L. R.) 662. 
 • Ah to persons who were inadmissible on this j^round before, see ante, p. 118.
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTIONS 3, 4. 134 
 
 better to consider the effect of the word "immediate," as distinct 
 from "individual" in the first phice, remembering at the same time 
 that both of these terms must liave been satisfied in order to exclude 
 the witness, and if the proceeding were not brought or defended on 
 his immediate, as Avell as his individual behalf the witness was com- 
 petent. Nkw although there was no presumption in favor of inca- 
 pacity, yet an action will be presumed to be brought on behalf of the 
 party who appears to be principally interested.' Thus an action by 
 a broker, upon a contract made by him for his principal, to recover 
 the sum due under that contract, though it include the broker's com- 
 mission is evidently an action brought on the immediate *be- 
 half of the principal ; and since the passing of the statute, ^ J 
 
 Avhere the party in whose name the action was brought, and the 
 witness bore the relation of trustee and cestui que trust to each other 
 in respect of the matter sought to be recovered in the action, the 
 latter Avas deemed to be a person in whose immediate behalf the action 
 Avas brouglit, and inadmissible as a witness." So, a creditor of a 
 bankrupt was held (by Wilde, C. J.) inadmissible as a witness for the 
 assignees, in an action by them to recover money paid as a fraudulent 
 preference,'' though a contrary opinion was expressed upon this ques- 
 tion by Pollock, C. B.^ And where the action was brought upon a 
 promissory note made to the plaintiff, a member of a joint-stock com- 
 pany, for the benefit of the company, another member of the company 
 was considered by Parke and Alderson, BB., to be incompetent for 
 the plaintiff.' 
 
 In Hill V. ICitchmg,^ which was an action by a ship-broker 
 against a ship-owner, for his commission in procuring a charter for 
 the latter, Cramond, a witness, stated that the defendant applied to 
 him to procure a freight for his vessel, whereupon he introduced him 
 to the plaintiff; that the negotiation took pUice at his office, but he 
 had nothing to do with it, and had no claim against the defendant; 
 but pursuant to agreement with the plaintiff and to the custom, he 
 should receive half the commission from the plaintiff, if he recovered. 
 He was held to be a competent Avitness, not being within the excepted 
 class. "If it had appeared," said Tindal, C. J., "that the plaintiff 
 
 ' Bell V. Smith, 5 B. & C. (] 1 E. C. L. R.) 188. 
 " Wade V. Simeon, 2 C. B. (52 E. C. L. R.) 342. 
 ' Belcher v. Brake, 2 Car. & K. (61 E. C. L. R.) G58. 
 
 y Johnson v. Graham, 2 Car. & K. (61 E. C. L. R.) 808 ; and see Hart v. 
 Stephens, 6 Q. B. (51 E. C. L. R.) 937. 
 ' Clark \. Bell, 12 Jur. 421. 
 » 3 C. B. (54 E. C. L. R.) 299.
 
 135 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 had made over to Cramond a moiety of the commission, then I shouM 
 have said that Cramond was a person in whose immediate and indi- 
 
 ^ ^ ^ vidual behalf the action was in *nart brought. But that is 
 r 13G1 
 
 •- -^ not so. Cramond, though he claims a moiety of the commis- 
 sion under a separate and distinct agreement with the plaintiff, has no 
 right to lay his hand upon any portion of the money to be recovered 
 in this action, and there was no evidence to show that he was any 
 party to the bringing of the action." 
 
 The rule deducible from these cases and observations would appear 
 to have been, that a witness who was so interested in the thing sued 
 for, whether goods or money, that when recovered by the party for 
 whom he appeared, it would be his property, or if recovered from 
 the party for whom he appeared, he (the witness) would be the loser 
 of it either wholly or in part ; or a witness who had set the suit in 
 motion, or actually defended it by employing the attorney, being 
 liable to him for the costs,^ was a person in whose immediate and 
 individual behalf the action was brought or defended within this ex- 
 ception. 
 
 On the construction of this exception it was also decided, that 
 creditors of a bankrupt were admissible witnesses for the defendant 
 in an action brought by the bankrupt against his assignee, to try 
 the validity of the fiat ; and it was considered immaterial whether 
 they had, or had not proved their debts." And in an action by the 
 assignee, the bankrupt himself was competent to prove the petition- 
 ing creditor's debt,'' or the act of bankruptcy, or any other matter 
 to support the fiat.^ For the same reason, a legatee of money charged 
 on land was admissible as a witness, to support the will giving that 
 land to the defendant, in an ejectment brought for the same land 
 r- ^ r.—, under another will devisino- it otherwise.* So the possibility 
 
 r*i37i ... 
 
 ■- -■ *of benefit did not exclude a husband from giving evidence 
 for the administrator of his wife, in an action brought by him on a 
 promissory note given to the wife while sole, the husband having no 
 interest in the amount recovered till his wife's debts, contracted while 
 
 '' Walter v. Thompson, cor. Patterson, .J., Oxford Summer Assizes, 1845 ; see 
 note to Bent v. Baker, 2 Smith L. C, 3d ed. 54. 
 
 <= Coluynbine v. Fenhall, 19 L. J., N. S.. Q. B. 302. And so a petitioning 
 creditor was held a good witness to support the fiat : Johnson v. Graham, 2 C. 
 &K. (01 E. C. L. R.) 808. 
 
 «» Groom v. Watson, 19 L. J., N. S., C. P. 364. 
 
 " Udall V. Walton, 14 M. & W. 254. 
 
 f Doe dem Bengo v. Nicholls, 18 L. J., N. S., Q. B. 81.
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTION 5. 137 
 
 unmarried, were paid.^ In an action likewise of trover^ for two pro- 
 missory notes, in which the question was, whether they were the pro- 
 perty of the plaintiff or of one Mytton, and the defendant asserted 
 that they were the property of Mytton, and were improperly in the 
 possession of the plaintiff, whereupon the defendant, as Mytton's 
 agent, took them from him ; Mytton being called as a witness for the 
 defendant stated on the voire dire that he had not indemnified the de- 
 fendant, and had nothing to do with the action. It Avas thereupon 
 objected that he was incompetent, but his evidence was held by the 
 court to have been rightly admitted. 
 
 A mere liability also to answer over against the consequences of 
 an action, as for instance that of a sheriff's officer, for whose miscon- 
 duct in not arresting when he had an opportunity an action was 
 brought against the sheriff, did not render such a witness a person in 
 whose immediate or individual behalf the action was defended ;^ nor 
 did an engagement to pay half the costs of defending the action, the 
 witness not being the defendant's partner, nor having retained the 
 attorney. "^ 
 
 But, in order to exclude the witness, the action must have been 
 brought or defended not only in his immediate but also in his indi- 
 vidual behalf, either wholly or in part. Looking to the construc- 
 tion put upon this word in the former clause' it would appear to have 
 a similar operation *in this ; and that where an action was 
 
 r*i.s8n 
 
 brought for or against a corporation in its aggregate name, ■- ' -^ 
 though the members might be entitled to the benefit of the thing 
 sought to be recovered in their corporate or collective capacity, or 
 might be so subjected to the loss which an adverse verdict might en- 
 tail, yet the members were competent as Avitnesses. The reason for 
 this is obvious when we reflect on the slight interest which individuals 
 so situated had in the result. 
 
 5thly. "The husband or wife of such persons respectively." 
 This is the last exception, and refers to the whole of the other ex- 
 ceptions. 
 
 8 Hart V. Stephens, 6 Q. B. (51 E. C. L. R.) 937. 
 
 " Eearne v. Turner, 2 C. B. (52 E. 0. L. R.) 535. 
 
 * Wilson V. Macjnay, 1 Car. & K. (47 E. C. L. R.) 291 ; Wheeler v. Senior, 1 
 Car. & K. (47 E. C. L. R.) 293 ; per Wierhtman, J. Before the recent statute 
 he would certainly have been inadmissible : Groom v. Bradley, 8 C. & P. (34 
 E. C. L. R.) 500 ; 2)er Parke, B. 
 
 ^ Sage v. Robinson, 3 Ex, 142. 
 
 ^ See per Parke, B., Sinclair v. Sinclair, 13 M. & W. 640 ; and see ante, p. 
 131, and the cases there cited. 
 10
 
 138 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 The law lias ever regarded the interest of husband and wife as 
 so identical, that where the one was incapacitated" on the score of 
 interest, the other could not give evidence. Thus, in an action 
 against the sheriff to recover the value of goods which had been 
 sold by him under an execution against the husband, brought bj the 
 trustee of a marriage settlement for the sole and separate use of the 
 wife, the husband was held to be incompetent as a witness for the 
 plaintiff to show that the goods had been conveyed to the plaintif!' 
 upon that trust." So, when a woman, against whom an action of debt 
 was brought, pleaded coverture, her husband was held to be an incom- 
 petent witness to support the plea." And, in an action of trespass 
 against two persons fur seizing the plaintiff's goods, the wife of one 
 of the defendants was held to be incompetent as a witness for the 
 other to prove that he never authorized the seizure, and this, too, 
 although the case as against her husband was clearly proved. Being 
 
 sworn to speak the whole truth, she *could not be prevented 
 
 r*l3*^1 • • • • 
 
 L ' ^-^ from stating facts which might tend to acquit her husband, 
 
 or to relieve him.^ In a criminal case, also, a wife could not be ex- 
 amined for another defendant upon a charge against him and her 
 husband, for example, of conspiracy, where the acquittal of the one 
 might enure to the discharge of the other defendant. 'i And it has 
 even been held, before the more recent act, that the wife of one pri- 
 soner could not be called as a witness to prove an alibi for another 
 prisoner on an indictment against both for burglary, inasmuch as 
 her evidence, by impugning the evidence of a witness who identified 
 both prisoners, would materially impair the weight of his evidence 
 generally with the jury ; but there seems to be a stronger reason 
 than this, viz., that she would be sworn to speak the wJiole truth, and 
 could not therefore be prevented from testifying in her husband's be- 
 half. "■ The effect of this enactment was to render a husband or wife 
 competent, though interested in the result, in all cases where the in- 
 terest of the husband or wife was not of the class mentioned in the 
 prior exceptions.^ 
 
 ™ B. N. P. 2S0. The rule that the husband and wife shall not bear evidence 
 a<;ainst each other, which depends upon different considerations, together with 
 the exception to it, has been already adverted to. 
 
 ° Davis V. Dinwoodi/, 4 T. R. 678. 
 
 » Woodyate v. Potts, 2 C. & K. (61 E. C. L. II.) 457. 
 
 p JfaiHcesicorth v. Showier, 12 M. & W. 45. i E. v. Locker, 5 Esp. 107. 
 
 ' Hex V. Smith, 1 Mood. C. C. 289 •, but see E. v. Sills, 1 C. & K. (47 E. C. L. 
 R.) 404, contra. 
 
 ' 'i"h(; ruh; ])ef'or(! the statute was not confined to the cases when the husband 
 or wife is a party, but wherever cither would be incompetent as an interested
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTION 5. 139 
 
 This exception becomes most important for consideration with a 
 view to the last enactment upon this subject, which we shall now 
 
 witness the other is so likewise : Griffin v. Brown, 2 Pick. 304 ; Leggett v. Boyd, 
 3 Wend. 37<) ; Hall v. Dargan, 4 Ala. 696 ; Seigling v. Main, 1 McMull. 252 ; 
 Abbott V. Clarke, 19 Vt. 444; Edwards v. Fitts, 3 Strobh. 140; Bisbing v. 
 Graham, 2 Ilarr. 14; Piper v. Lodge, 16 S. & R. 214 ; Carpenter v. Moon, 43 
 Vt. 392 ; Young v. Gilman, 46 N. H. 484 ; Carpenter v. White, 46 Barb. 291 ; 
 Cull V. Herwig, 18 La. Ann. 315; Leach v. Fowler'' s devisees, 22 Ark. 143; 
 Marshman v. Conklin, 2 Green 282; Cramer v. Bedford, Ibid. 367 ; Galwny v. 
 Fullerton, Ibid. 389 ; Woinach v. McQuarry, 28 Ind. 103 ; Farrell v. Ledwell, 21 
 Wis. 182; A'eZZy v. Drew, 12 Allen 107. 
 
 A husband and wife jointly sued or suing may each testify in his or her own 
 behalf only : Albaugh v. James, 29 Ind. 398 ; Loioe v. Hughes, Ibid. 399 ; Crane 
 V. BucJianan, Ibid. 570. A plaintiff's wife is not a competent witness for the 
 defendant : Blain v. Fatterson, 47 N. H. 523. But see Dyer v. Homer, 22 Pick. 
 253, where it was decided that although the effect of a husband's testimony 
 may be to increase a fund given to trustees for the benefit of his wife and the 
 income of which is to be paid over to her for her sole use, and upon her own 
 receipts under her hand, he is not therefore an incompetent witness, his interest 
 being contingent. Contra, that the husband cannot be a witness either for or 
 against his wife, in a suit concerning her separate estate : Warne v. Dyott, 2 
 Edw. Ch. Rep. 497 ; Hosach v. Rogers, 8 Paige 229 ; Burrell v. Bull, 3 Sandf. 
 Ch. 15 ; Hodges v. Bank, 13 Ala. 455 ; Footman v. Fendergrass, 2 Strobh. Eq. 
 317; Mayrant v. Guignard, 3 Strobh. Eq. 112; Williamson v. Morton, 2 Md. 
 Ch. 94 ; Snyder v. Snyder, 6 Binn. 483. Although the husband might be com- 
 petent as called to testify against his own interest, and be compellable to do so, 
 yet the wife will not be competent, and this is peculiarly on the ground of 
 policy to prevent that discord and dissension which would otherwise be likely 
 to arise between the parties. Therefore if one of two or more defendants in 
 equity suffers the bill be taken pro confcsso, and other defendants answer, the 
 wife of the defaulted defendant is not ev good witness for the complainant: Spar- 
 hawk V. Buell, 9 Vt. 41 ; see Hadley v. Chapin, 11 Paige 245. A wife may be 
 admitted as a witness against her husband in an indictment for a criminal offence 
 committed by him against her : State v. Davis, 3 Brev. 3. But only when it is 
 an injury to her person, not when it is to wrong her in her property, as by sub- 
 ornation of perjury : Feople v. Carpenter, 9 Barb. S. C. 580 ; State v. Dyer, 59 
 Me. 303; Comm. v. Reid, 1 Campb. 182; Feople v. Northrop, 50 Barb. 147. 
 The wife is competent to prove desertion by her husband : State v. Brown, 67 
 N. C. 470. The second wife is a competent witness on the trial of her husband 
 for bigamy or unlawful cohabitation : Finney v. State, 3 Head 544. As to com- 
 petency of husband and wife in criminal cases, see State v. Moulton, 48 N. 
 H. 485 ; Farsons v. Feople, 21 Mich. 509. The wife of a joint defendant not on 
 trial is competent for the others : State v. Drawdy, 14 Rich. 87. The wife of an 
 accessory to a battery is competent for the principal. The legal effect of an 
 acquittal of one of the indicted parties is not an acquittal of the other: State v. 
 Mooney, 64 N. C. 54. When an accomplice and his wife are witnesses for the 
 prosecution in a criminal trial, the -wife is competent to prove any independent 
 facts not sworn to by her husband and not forming any part of his acts.
 
 139 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 proceed to discuss; and as it defines the persons falling within it by 
 reference to the preceding exceptions, it has rendered it necessary 
 
 although those facts fasten a guilty knowledge on the defendant : United States 
 V. Horn, 5 Blatchf. 102. When trials on an indictment are separate the wife 
 may testify against any one other than her husband ; except in cases where the 
 acquittal of one defendant works the acquittal of the rest, as in conspiracy : 
 United States v. Addate, 6 Blatchf. 76. So she is a competent witness for him 
 to disprove the charge : State v. Neill, 6 Ala. 685. The husband having been 
 examined for the State, the wife is a competent witness on the other side, to 
 show that the husband testified under a bias against the defendant but not to 
 contradict him : Cornelius v. State, 1 Engl. 782. The wife who keeps her 
 husband's books is a competent witness to prove his book of original entries: 
 Littlejield v. Rice, 10 Mete. 287. The principle of necessity which enables a 
 party to prove the contents of a lost trunk applies to the wife, and renders her 
 also a competent witness in such a case : McGill v. Bowand, 3 Barr 451. 
 
 After a divorce, or death, neither will be permitted to testify against the 
 other in respect to transactions which occurred during the coverture: Barnes v. 
 Camaclc, 1 Barb. 392; Cook v. Grange, 18 Ohio 520 ; Gaskill v. King, 12 Ired. 
 211 ; Bradford v. Williams, 2 Md. Ch. 1 ; Hay v. Hay, 3 Rich. Eq. 384 ; Crook 
 V. Henry, 25 Wis. 569 ; Rea v. Tucker, 51 111. 110. A wife after the death of 
 her husband is competent to prove facts coming to her knowledge from other 
 sources than by means of her situation as wife, notwithstanding they relate to 
 the transactions of her husband : Wells v. Tucker, 3 Binn. 366 ; Cornell v. 
 Vanarisdalen, 4 Barr 374; Chambers v. Spencer, 5 Watts 404. As a general 
 rule the wife can be a witness when the husband can ; thus she is as competent 
 as he to testify to the contents of a lost trunk : Illinois Railroad Co. v. Taylor, 
 323 ; Same v, Copeland, Ibid. 332. In the trial of a complaint against a man 
 for an assault and battery upon his wife, she is a competent witness in his favor: 
 Comm. v. Murjjhy, 4 Allen 491. Communications between husband and wife 
 are privileged, even after the husband's death : Gray v. Cole, 5 Ilarring. 418 ; 
 Lingo v. State, 29 Ga. 470 ; Walker v. Sanborn, 46 Me. 470. The testimony of 
 a wife, the only tendency of which is to discredit her husband, is not admis- 
 sible : Keaton v. McGwier, 24 Ga. 217. A husband cannot, in a collateral pro- 
 ceeding, give testimony which directly charges the wife with an offence, although 
 she has been tried and acquitted of it : State v. Wilson, 2 Vroom 77. The pre- 
 sumption of marriage arising from the fact of cohabitation is not such as to 
 render the woman incompetent on the man's trial for crime : Hill v. State, 41 
 Ga. 484 ; Dennis v. Crittenden, 42 N. Y. 542 ; Flanagin v. State, 25 Ark. 92. 
 When the husband and wife are competent witnesses for but not against each 
 other in criminal cases, when the wife is examined on behalf of her husband 
 hhe cannot be cross-examined : Griffin v. State, 32 Tex. 164 ; contra. Creamer v. 
 State, 34 Tex. 173. As to when husband and wife are competent for each 
 otlier under statute, see Robison v. Robison, 44 Ala. 227 ; Moivler v. Harding, 
 .,.', Ind, 176; Blake \. Lord, 82 Mass. 387 ; Pea.vZee v. ifcXooji, 82 Mass. 488 ; 
 firew'v. Matthews, 101 Ibid. 64; Morony v. O^Laughlin, 102 Ibid. 184; Traxton 
 V. Hawes, Ibid. 533; Baxter v. Boston R. R. Co., Ibid. 383; Bunker v. Bennett, 
 1U3 Ibid. 516; Yeager v. Weaver, 14 P. F. Smith 425; Musser v. Gardner, 16 
 Ibid. 212; Roivlcy v. Mrlfiigh, Ibid. 269; Lilrhjidd v. Merritt, 102 Mass. 520;
 
 INTEREST — 6 & 7 VICT. C. 85 — EXCEPTION 5. 139 
 
 to afford an explanation of the whole of them, which might otherwise 
 have been partially dispensed with. 
 
 Shortly after the passing of Lord Denmans Act, the statute for 
 the establishment of County Courts, which superseded a large num- 
 ber of minor tribunals where the objection to the admissibility of wit- 
 nesses on the score of interest was not allowed to prevail, was pro- 
 mulgated ; and by this it was provided, that in those new Courts, 
 
 not onlv the parties, but their wives and all other persons, 
 
 ... . r ? r*^^ 
 
 *should be witnesses on either side.^ This paved the way ^ J 
 
 for the introduction by Lord Brougham of the last and most sweep- 
 ing measure upon the subject of the inadmissibility of witnesses on 
 the ground of interest, viz., the recent "Act to amend the Law of 
 Evidence."' This statute, after reciting that "whereas it is expe- 
 dient to amend the law of evidence in divers particulars," enacts" 
 " that so much of sect. 1 of the Act of the 6th and 7th years of 
 Her present Majesty, chap. 85, as provides that the said Act shall 
 not render competent any party to any suit, action, or proceeding, 
 individually named in the record, or any lessor of the plaintiiF, or 
 tenant of premises sought to be recovered in ejectment, or the land- 
 lord or other person in whose right any defendant in replevin may 
 make cognizance, or any person in whose immediate and individual 
 behalf any action may be brought or defended, either wholly or in 
 part, is hereby repealed." It then proceeds^ to enact that "on the 
 trial of any issue joined or of any matter or question, or on any 
 inquiry arising in any suit, action, or other proceeding in any court 
 of justice ; or before any person having by law, or by consent of par- 
 ties, authority to hear, receive and examine evidence, the parties 
 thereto, and the persons on whose behalf any such suit, action or other 
 proceeding may be brought or defended, shall, except as hereinafter 
 excepted, be competent and compellable to give evidence, either viva 
 voce or by deposition according to the practice of the court, on behalf 
 of either or any of the parties to the said suit, action or other pro- 
 
 ' 9 & 10 Vict. c. 95, s. 83. ' 14 & 15 Vict. c. 90. 
 
 " Sect. 1. ^ Sect. 2. 
 
 Baxter \. Knowles, 12 Allen 114; Bliss v. Franklin, 13 Allen 244; Bush v. 
 Savage, Ibid. 40S ; Phares v. Barbour, 49 111. 370; Packard v. Reynolds, 100 
 Mass. 1 53. Under statutes : Jackson v. Jackson, 40 Ga. 1 50 ; Mclntyre v. Meldrom, 
 Ibid. 490; Rice v. Keith, 63 N. C. 319; Manhij v. Eakin, 15 Rich. (Law) 324; 
 Kyle V. Frost, 29 Ind. 382; Magness v. Walker, 26 Ark. 470; Matteson v. New 
 York R. R. Co., 62 Barb. 364; Fugate v. Pierce, 49 Mo. 441 ; Bast v. Anspach, 
 1 Camp. 25 ; Jones v. Simpson, 59 Me. 180 ; Steen v. State, 20 Ohio St. 333.
 
 140 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 ceeding." By way of exception, however, to these general provisions, 
 it is declared that "nothing herein contained shall render any person 
 who'' in any criminal proceeding is charged with the commission of any 
 indictable offence, or any offence punishable on summary *con- 
 '- -• viction, competent or compellable to give evidence for or 
 against himself or herself, or shall render any person compelhible to 
 answer any question tending to criminate himself or herself; or shall 
 in any criminal proceeding render any husband competent or compel- 
 lable to give evidence for or against his wife, or any wife competent 
 or compellable to give evidence for or against her husband." And 
 also" that "nothing herein contained shall apply to any action, suit, 
 proceeding, or bill, in any Court of Common Law, or in any Ecclesi- 
 astical Court, or in either House of Parliament, instituted in conse- 
 quence of adultery, or to any action for breach of promise of 
 marriage." 
 
 By the first section therefore of this enactment it will be found, on 
 reference to Lord Denmans Act, that the whole of the exceptions 
 contained in it, save the last which related to the husbands and 
 wives of the parties mentioned in all the exceptions, was repealed, 
 and the general enabling clause which that Act contained would 
 have prevailed. It therefore became requisite to limit its opera- 
 tion by the two last sections above quoted ; and in order to put 
 an end to all questions, as well to render parties compellable by 
 their adversaries or other parties to give evidence, the second sec- 
 tion seems to have been introduced. The exception therefore in 
 the prior enactment as to the evidence of husbands and wives in the 
 instances mentioned in it, and the two clauses above quoted from the 
 last statute, are the only remnants of the ancient rule upon this sub- 
 ject ; and all other persons are now admissible as witnesses without 
 reference to any interest they may possess. With regard to those 
 two clauses, the reasons for excluding the persons falling within them 
 are so obvious, and their language is so explicit, as to render further 
 explanation superfluous ; but, with regard to the other exception, 
 there has already been considerable discussion, and some difference of 
 opinion." 
 
 *Whether the exclusion of the evidence of the Avife at 
 r*1421 
 L ""J common law depended upon the identity of interest between 
 
 h(;r and her husband, or upon the interest which society has to pre- 
 
 tjcrvc the peace and confidence of families, has been strongly disputed. 
 
 y Sect. ?>. ^ Sect. 4. 
 
 " See Slajddon v. Croft, 10 Jur. 408.
 
 INTEREST — MODE AND TIME OF OBJECTION. 142 
 
 Whichever be the foundation of the rule, the legislature seems to have 
 thought that the question of the admissibility of the evidence of hus- 
 bands and wives, for or against one another, involved other considera- 
 tions than that of mere interest, and purposely to have omitted this 
 exception from the repeal effected by the 1st section. It is, however, 
 singular that, cither from inadvertence or for some reason which it is 
 difficult to comprehend in the subsequent section, which provides that 
 parties and persons on whose behalf the action is brought shall be 
 competent and compellable to give evidence, there is no qualification 
 whatever : and the result is, that under that provision, where the hus- 
 band and wife are parties to the action or suit, they may both give 
 evidence. Thus, where goods were supplied to a wife before mar- 
 riage, and the husband and wife were sued for the price, they were 
 both allowed to give evidence for the defence.'' But if the case does 
 not fall within that section, and both the husband and wife are not 
 parties, it has now been decided" that in civil proceedings the excep- 
 tion in Lord Denmans Act prevails, and the old rule of exclusion 
 applies, and as expressed by Parke, B.,*^ " The wife is not a competent 
 witness in a civil suit to which her husband is a party. She was incom- 
 petent in such cases by the common law, and I do not stop to inquire 
 whether that was simply on the ground of interest or of the relation- 
 ship between the parties, though the latter is the reason usually 
 assigned in the books, and it is clear that by the recent Law of Evi- 
 dence Act, 14 & 15 Vict. c. 99, it was never meant that the 
 *wife should be a competent witness for or against her bus- 
 band." [''*3] 
 
 If, however, the adversary do not object, it w^ould seem that the 
 husband or wife might be examined, and perhaps the judge could not 
 reject the evidence; but after the party has once objected, it is en- 
 tirely in the discretion of the judge whether he will allow the objec- 
 tion to be withdrawn.® 
 
 Unless the interest of the witness was apparent from the record 
 itself or from the admission of the adversary, it lay with the party 
 making the objection to establish it^ to the satisfaction of the judge,^ 
 
 •^ Christian v. Horwood et nx.. cor. Pollock, C. B., London Sittings after M. 
 T. 1851. 
 
 " Stapleton v. Crafty 16 Jur. 408, dissentiente, Erie, J. •, Barhat v. AUe7i, 21 
 L. J., Ex. 154. 
 
 d Barbat v. Allen, 21 L. J., Ex. 154. 
 
 • Barb at v. Allen, snjyra. 
 
 ' Doe dem. Norton v. Webster, 12 Ad. & E. (40 E. C. L. R.) 442 ; Banter v. 
 Warre, 1 B. & C. (8 E. C. L. R.) 689. 
 
 ^ The judge at nisi prius is the person to decide, both as to the facts and the
 
 143 OBJECTIONS IN EXCLUSION OF WITNESSES. 
 
 either by the examination of the witness on the voire dire or by inde- 
 pendent evidence.'' 
 
 Notwithstanding the primd facie appearance of interest on the 
 part of the witness on the face of the record, it was held his evidence 
 ought not to be rejected without examining him on the voire dire as 
 to his real situation.' The witness might be examined generally as 
 
 ^,^.,^ to his situation, *and even as to the contents of written 
 r 1441 • 
 
 ■- -■ documents which were not produced ',^ for the party object- 
 ing could not know previously that the witness would be called, and 
 consequently might not be prepared with the best evidence to estab- 
 lish his objection ; and in like manner his competency might be re- 
 stored by his parol evidence on the voire dire} ^ If the witness dis- 
 charged himself on the voire dire, the party who objected might still 
 afterwards support his objection by evidence;™^ but in so doing the 
 
 law, on a question as to the competency of a witness: Doe dem. Norton v. Web- 
 ster, 12 Ad. & E. (40 E. C. L. R.) 442. 
 
 ^ Formerly it was necessary to have the witness sworn on the voire dire, and 
 to take the objection before he was sworn in chief, but the rule has been relaxed 
 for the sake of convenience: Turner v. Pearte, 1 T. R. 717. The witness may 
 be examined on the voire dire in criminal as well as civil cases : R. v. Muscot, 
 10 Mod. 192; see Lord Lovafs case, 18 How. St. Tr. 530. In E. v. Wakefield 
 and others, 2 Lew. Cr. C. 279, on an indictment for a conspiracy to carry away 
 Miss Turner and marry her to one of the defendants, on an objection taken by 
 the defendants to the competency of Miss T., on the ground that she was 
 married to one of the defendants, Hullock, B., held that the proper course was 
 first to examine Miss T. on the voire dire, and afterwards to adduce collateral 
 evidence. 
 
 * Bunter v. Warre, 1 B. & C. (8 E. C. L. R.) 689 ; Goodhay v. Hendry, Mood. 
 & M. (22 E. C. L. R.) 319 ; Carlile v. Ead>j, 1 C. & P. (12 E. C. L. R.) 234; 
 lAinnis V. Row, 10 Ad. & E. (37 E. C. L. R.) 006 ; Quarterman v. Cox, 8 C. & 
 P. (34 E. C. L. R.) 97 ; Harfshorne v. Watson, 5 Bing. N. C. (35 E. C. L. R.) 477. 
 
 '' R. v. Gishiirn, 15 East 57 ; Howell v. Locke, 2 Camp. 14; Lunnis v. Row, 
 10 Ad. & E. (37 E. C. L. R.) 606. 
 
 ' R. V. Gishurn, 15 East 57 ; Brockbank v. Anderson, 7 M. & G. (49 E. C. L. 
 R.) 295 ; and see Bolliam v. Swinglcr, 1 Esp. C. 164 ; Butcher^ s Company v, 
 Jones, Ibid. 160. 
 
 ™ In R. v. Muscot, 10 Mod. 192, Parker, C. J., is reported to have stated that 
 a party has his election to prove the interest of the witness either by examina- 
 tion on the voire dire or by evidence, but that he could not do both : and see 
 Lord Lovafs case, 18 How. St. T. 530. 
 
 ' Stebbins v. Sackett, 5 Conn. 258 ; Miller v. Marine's Church, 7 Greenl. 51 ; 
 Hays V. Richardson, 1 Gill >t Jolma. 366 ; Mayo v. Gray, 2 Penna. 837 ; Fifield 
 v. Smith, 8 SIicp. 383. 
 
 * But the better opinion in tlie United States is tliat a party putting a witness 
 on his voire dire is bound by his answers and cannot establish his incompetency
 
 INTEREST — MODE AND TIME OF OBJECTION. 144 
 
 objecting party was bound by the usual rules of evidence, and could 
 not inquire as to the contents of a written instrument without pro- 
 ducing it, or proving the usual preparatory steps." 
 
 The objection to competency ought properly to be taken in the 
 first instance, previously to an examination in chief;" where it is dis- 
 covered incidentally in the course of the cause that the witness is in- 
 admissible, his evidence will be struck out, although no objection has 
 
 ° Hoicell V. ioc/i-e, 2 Camp, 14. 
 
 ° Harishorne v. Wihon, 5 Bing. N. C. (35 E. C. L. R.) 477. The ancient doc- 
 trine on this head was so strict, that if a witnes were once even sworn in chief 
 he could not afterwards be objected to on the ground of interest; but this rule 
 has been relaxed ; see Jacobs v. Laborn, infra note.'' 
 
 aliunde: and vice versa, if he fails in the Tproo? aliunde, he cannot resort to the 
 examination on the voire dire. It is however always op,en to the party to adduce 
 evidence of interest in the witness with a view to impeaching his credibility 
 with the jury: Mifflin v. Bingham, 1 Dall. 272; Mallet v. Mallet, 1 Root 501 ; 
 McAllister v. Williams, 1 Overt. 107, 119; Bridge v. Wellington, 1 Mass. 219; 
 Chance v. Hine, 6 Conn. 231 ; Dorr v. Osgood, 2 Tyler 28 ; Bisbee v. Hall, 3 
 Ilamm. 449; Welden v. Buck, Anth. 9; Walker v. Sawyer, 13 N. H. 191; 
 Schnader v. Schnader, 2 Cas. 384. Contra, Stebbins v. Sackett, 5 Conn. 258. 
 A witness, who is objected to because of interest, may be examined on his voire 
 dire or his interest may be shown by other witnesses, but resort cannot be had 
 to both sources; nor can the witness objected to be called to contradict those 
 who have testified to his disqualification : Diversy v. Will, 28 111. 216 ; Young v. 
 Cook, 15 La. Ann. 126. Declarations of a witness before he is called do not 
 disqualify him. The interest of a witness in the event of the suit should be 
 established on his voire dire or by other testimony : Waughojy v. Week, 22 111. 
 350 ; Rich V. Eldredge, 42 N. H. 153. A witness not interested but who believes 
 himself to be so is competent : Stallings v. Carson, 24 Ga. 423. If the witness's 
 competency is impeached aliunde, it must be sustained aliunde. The party pro- 
 ducing him is not entitled to put him on his voire dire: Wright v. Mathetvs, 2 
 Blackf. 187 ; The Watchman, Ware 232 ; Anderson v. Young, 9 Harris 443 ; 
 Haynes v. Hunsicker, 2 Cas. 58. When a party has attempted to exclude a 
 witness produced against him, by evidence from others of his interest and has 
 failed, the judge, in his discretion, may permit him to examine such witness on 
 the voire dire; but it is doubtful whether this may be claimed as a right : Butler 
 V. Tufts, 1 Shep. 302. Where a mere ofi"er has been made to prove a witness 
 interested, he may still be examined on his voire dire when the testimony ofi'ered 
 was overruled : Main v. Newson, Anth. 11. If the interest of a witness appears 
 from his own testimony he may testify to facts which will remove the objection ; 
 aliter, when his interest is otherwise shown : Montgomery Plank Road Co. v. 
 Webb, 27 Ala. 618. If however the interest appears of record or on the face of 
 the instrument sued on, he is incompetent to prove his own release : Hiscox v. 
 Hendree, Ibid. 216. When the interest of a witness as partner of the plaintifi" 
 is shown by evidence aliunde after he has been examined he cannot be recalled 
 to restore his testimony on his voire dire : Robinson v. Turner, 3 Iowa 540.
 
 144 EXAMINATION OF WITNESSES IN CHIEF. 
 
 been made to him on the voire dire^^ Yet it seems that a party who 
 is cognizant of the objection of the witness at the time Avhen he is 
 called, ought to make his objection in the first instance, according to 
 the general principle.'' *This seems to be a matter entirely 
 L J within the discretion of the court. Where the witnesss, hav- 
 ing been examined, had left the box, but on being recalled answered 
 a question put by the court, from which it appeared that he was in- 
 terested, it was held that his competency could not then be disputed.' 
 And where a witness had been examined and cross-examined or inter- 
 rogated without objection, it was held that the objection to competency 
 could not be taken at the trial.' The courts will not, it seems, grant 
 a ncAv trial on the mere ground that it has been discovered, subse- 
 quently to the trial, that some of the witnesses were inadmissible.* 
 If the evidence of a witness be improperly admitted or rejected, the 
 court will grant a new trial, unless perhaps it be perfectly clear that 
 its admission or rejection could have had no effect on the verdict, or 
 the court beyond all doubt, if the verdict had been the other way, 
 Avould have set it aside as improper, or where it related only to par- 
 ticular issues ; and as to them the verdict has either been found for 
 the objector in favor of the party applying for the new trial," or the 
 other party consents that it shall be so entered. 
 
 P Per Lord Ellenborough, Hoioell v. Locke, 2 Camp. 14 ; Perigal v. Nicholson, 
 1 Wightw. 64. 
 
 1 Turner v. Pearte, 1 T. R. 717. But the doctrine in the text has been much 
 shaken in Jacobs v. Layhorn, 11 M. & W. 685, where a witness for the defendant 
 after answering several questions upon examination in chief, was stopped by 
 the plaintiff's counsel, and in answer to his questions acknowledged that he was 
 answerable to the defendant's attorney for the costs. It was held by the court 
 in banc that the objection to his competency was not too late, and Lord Abinger, 
 C. B., there observed, that a counsel may wait and see whether the witness will 
 speak the truth, and if he finds he does not, then he may examine him on the 
 voire dire, and exclude his testimony. 
 
 ' Beeching v. Ganger, Holt C. (3 E. C. L. R.) 313 ; Wollaston v. HaJcewill, 3 
 M. &. G. (42 E. C. L. R.) 297 ; Fellingham v. Sparrow, 9 Dowl. P. C. 141 ; Dewd- 
 ney v. Palmer, 4 M. & W. 664. 
 
 » Ogle V. Paleski, Holt C. (3 E. C. L. R.) 485. 
 
 ' Turner v. Pearte, 1 T. R. 717 ; see note (m). But, if there were anything 
 like fraud on the part of the party producing the witness, the court will inter- 
 fere : Wade v. Simeon, 2 C. B. (52 E. C. L. R.) 342. 
 
 " WrUjU V. Doe dem. Tatham, 7 Ad. & E. (34 E. C. L. R.) 330 ; Crease v. 
 Barrett, 1 C. M. & R. 919 ; De Rutzen v. Farr, 4 Ad. & E. (31 E. C. L. R.) 53 ; 
 Uorfurd v. Wilson, 1 Taunt. 12 ; and Edwards v. Evans, 3 East 451. 
 
 1 See ante, p. 1 1 5, note.
 
 LEADING QUESTIONS. 166 
 
 *III. The mode of examination in cliief — Cross-exami- ^ ^ ,^ , ^ ^^-, 
 
 '' ... r 146 *1661 
 
 nation^ — and re-examination of tvitnesses. *- -" 
 
 Upon the examination of a witness in chief, the principal rule to 
 be observed is, that leading questions are not to be asked ; tliat is, 
 questions which suggest to a witness the answer which he is to make. 
 Where a witness is too ready to serve the cause of his party, and 
 willing to adopt and assert what may be suggested for his benefit, 
 objections to questions of this nature are of tlie highest importance; 
 but where the matter to which the witness is examined is merely in- 
 troductory of that which is material, it is frequently desirable to lead 
 his mind directly to the subject ; and where he is examined as to 
 material facts, it is in general necessary, to some extent, to do this. 
 Questions to which the answer yes or no would be conclusive, would 
 certainly be objectionable; and so would any question which plainly 
 suggested to the witness the answer which the party, or his counsel 
 hoped to extract." Where a witness betrays a forwardness to serve 
 the party for whom he is called, but does not know how best to effect 
 his object, it is most essential to justice that he should not be 
 prompted. And it is to be observed, that answers extracted by such 
 improper means are of little advantage in general to the party in 
 whose favor they are given, since evidence obtained from a partial 
 witness by unfair means must necessarily be viewed with the utmost 
 jealousy. 
 
 On the other hand, objections of this nature ought not to be 
 wantonly or captiously made," since it is, to some *extent 
 always necessary to lead the mind of the witness to the ^ -■ 
 
 " The objection in principle applies to those cases only where the question 
 propounded involves an answer immediately concluding the merits of the case, 
 and indicating to the witness an answer which will best accord with the interests 
 of the party : see 2 Pothier, by Evans, 265. 
 
 ° Nicholls V. Doivding, 1 Stark. C. (2 E. C. L. R.) 81. In order to prove that 
 Dowding and Kemp were partners, the witness was asked whether Kemp had 
 interfered in the business of Dowding ; and upon the objection being taken that 
 this was a leading question, Lord Ellenborough, C. J., held that it was a proper 
 question, and intimated that objections of this nature were frequently made 
 without consideration. It is not a very easy thing to lay down any precise 
 general rule as to leading questions : on the one hand, it is clear that the mind 
 of the witness must be brought into contact with the subject of inquiry ; and, 
 on the other, that he ought not to be prompted to give a particular answer, or 
 to be asked any question to which the answer "yes" or "no" would be con- 
 clusive. But how far it may be necessary to particularize, in framing the 
 question, must depend upon the circumstances of each individual case. Upon
 
 167 EXAMINATION OF AVITNESSES IN CHIEF. 
 
 subject of inquiry. In some instances the court Avill allow leading 
 
 r*ipQ"| questions to be put upon an examination in *chief, as where 
 
 it evidently appears that the witness wishes to conceal the 
 
 truth, or to favor the opposite party. p Thus a party's own witness 
 
 the trial of De Berenger and others, before Lord Ellenborough, at Guildhall, 
 for a conspiracy, it became necessary for a witness (a postboy who had been 
 employed to drive one of the actors in a fraud) to identify De Berenger with 
 that person ; and Lord Ellenborough held that, for this purpose, the counsel for 
 the prosecution might point out De Berenger to the witness, and ask him 
 whether he was the person. The same was done in Watso7i^s case, upon a trial 
 at bar: 2 Stark. C. (3 E. C, L. R.) 128. In these cases, the question was as to 
 a mere fact to be determined hj inspection ; and, in all such cases, it seems that 
 the mind of the witness may be led directly to the very point, although a more 
 general question might have been proposed, as, whether the witness saw the 
 person whom he had described in court. So where a witness is called to prove 
 the handwriting of another, it is the common practice to show him the docu- 
 ment, and to ask, directly, whether that is the handwriting of A. B. But where 
 a witness is examined as to any conversation, admission, or agreement, where 
 the particular terms of the admission or contract are important, this objection 
 chiefi}' becomes material, since there is danger lest the witness should by design 
 or mistake be guilty of some variance, and give a false coloring to the transac- 
 tion. In such cases there seems to be no objection to directing the mind of the 
 witness fully to the subject, by asking him whether he was present when any 
 conversation took place between the parties, or relating to the particular sub- 
 ject; and when the mind of the witness has been thus directed to the subject- 
 matter, to request him to state what passed. It is obvious that observations 
 like these are intended for the use of mere students ; to such it may not be 
 improper to suggest, that when the time and place of the scene of action have 
 once been fixed, it is generally the easiest course to desire the witness to give 
 his own account of the matter, making him omit, as he goes along, an account 
 of what he has heard from others, which he always supposes to be quite as 
 material as that which he himself has seen. If a vulgar, ignorant witness be 
 not allowed to tell his story in his own way, he becomes embarrassed and confused, 
 and mixes up distinct branches of his testimony. He always takes it for granted 
 that the Court and jury know as much of the matter as he does himself because 
 it has been the common topic of conversation in his own neighborhood ; and 
 therefore his attention cannot easily be drawn so as to answer particular ques- 
 tions without putting them in the most direct form. It is difficult, therefore, to 
 extract the important parts of his evidence piecemeal ; but if his attention be 
 first drawn to the transaction by asking him when and where it happened, and 
 he be told to describe it from the beginning, he will generally proceed in his 
 own way to detail all the facts in the order of time. 
 
 P In Clarke v. *SV///W7/, lly. & M. (21 E. C. L. R.) 12G, Best, C. J., observed, 
 "There is no fixed rule which binds the counsel calling tlic witness to a par- 
 ticular mode of examining him. If a witness, by his conduct in the box, shows 
 himself decidedly adverse, it is always in the discretion of the judge to allow a 
 cross-examination." And, in Bastin v. Carew, Ry. & M. (21 E. C. L, R.) 127, 
 Abbott, C. J., in allowing the cross-examination by the counsel who called him
 
 LEADING QUESTIONS. 168 
 
 who, having given one account of tlie matter, when called on the 
 trial gives a different account, may be asked by the party calling 
 him whether he had given such account, stating it, to the attorney. "^ 
 And if a witness called stands in a situation which, of necessity, 
 makes him adverse to the party calling him, counsel may cross-ex- 
 amine him."" Thus, Avhere an issue has been *directed, with 
 
 . r*1691 
 
 power to examine a party, the counsel of the opposite party ^ J 
 
 may cross-examine him, for being a party, he is presumed to be an 
 adverse witness.' In like manner where, on an issue of devisavit 
 vel non from the Court of Chancery, the party, in obedience to the 
 requisition of that court, having called one, proceeded to call 
 another attesting witness to the will, who gave evidence tending to 
 prove the testator to have been insane, he was allowed to cross-ex- 
 amine him : the witness in such a case, not being regarded as the 
 witness of the party, but rather of the court, and the party having 
 no option as to producing him.' And where, from the nature of the 
 case, the mind of the witness cannot be directed to the subject of 
 inquiry without a particular specification of it, as when he is called to 
 contradict another as to the contents of a particular letter which is 
 lost, and cannot without suggestion, recollect the contents, the par- 
 ticular passage may be suggested to him." So where a witness is 
 
 of an adverse witness, said, that in each particular case there must be some 
 discretion in the presiding judge, as to the mode in which the examination shall 
 be conducted, in order best to answer the purposes of justice." And see Dickinson 
 V. Shee, 4 Esp, 67 ; Parkin v. Moo7i, 7 C. & P. (32 E. C. L. R.) 408 ; R. v. 
 Chapman, 8 C. & P. (34 E. C. L. R.) 558; E. v. Ball, 8 C. & P. (34 E. C. L. R.) 
 745. 
 
 1 Melhuish V. Collier, 19 L. J., Q. B. 493. 
 
 ' Per Best, C. J., Clarke v. Saffery, Ry. & M. (21 E. C. L. R.) 126. The 
 situation of the witness, and the inducements under which he may labor to give 
 an unfair account, are material considerations in this respect. A son will not 
 be very forward in stating the misconduct of his father, of which he has been 
 the only witness. A servant will not, in an action against the master, readily 
 admit his own negligence. See 2 Pothier, by Evans, 267. 
 
 = Clarke v. Saffertj, Ry. & M. (21 E. C. L. R.) 126. 
 
 ' Per Cresswell, J., Bowman v. Bowman, 2 M. & Rob. 501. 
 
 " Courteenv. Touse, 1 Camp. 43. The plaintiif's son, in an action on a policy 
 on goods, being asked whether the plaintiff had not written a letter to him, 
 saying, '• that he had disposed of all his goods at a profit," swore that he did 
 not, but only said that " he might have disposed of the goods at a great profit, 
 as he had been offered Sd. a pair," &c. To contradict this a witness was Ccalled 
 by the defendant, and, after having stated all he recollected about the letter, he 
 was asked if it contained anything about the plaintiff having been offered 8d. a 
 pair, &c. Lord Ellen borough held that after exhausting the witness's memory
 
 169 EXAMINATION OF WITNESSES IN CHIEF. 
 
 called in order to contradict the testimony of a former witness, who 
 has stated that such and such expressions were used, or such 
 
 *and such things were said, it is the usual practice to ask 
 L J whether those particular expressions were used, or those 
 things were said, without putting the question in a general form by 
 inquiring what was said. If this were not to be allowed, it is obvious 
 that much irrelevant and inadmissible matter would frequently be 
 detailed by the witness. 
 
 The negative, if not allowed to be directly proved, could only be 
 proved indirectly, by calling on the Avitness to detail the whole of 
 what was said on the particular occasion, if any such were singled 
 out by the evidence, or to detail the whole of several such conver- 
 sations, where the use of the alleged expressions or words was not 
 limited to any conversation in particular ; and, after all, the evidence 
 would not be complete and satisfactory to establish the negative, 
 unless sooner or later the question as to the use of the particular 
 expressions were to be directly put, for till then the evidence would 
 show only that the witness did not remember their use ; but the 
 direct neerative, after the attention of the witness had been excited 
 by the suggestion of the very expressions, would go much further. 
 It may frequently happen that a Avitness, unable to detail even the 
 substance of a particular conversation, may yet be able to negative 
 with confidence proposals, offers, statements, or other matters, sworn 
 to have been made in the course of a conversation. In such cases, 
 therefore, this form of inquiry is absolutely necessary for obtaining 
 complete information on the subject. So where a witness is called to 
 prove affirmatively what a witness on the other side has denied, as, 
 for instance, to prove that on some former occasion that witness gave 
 a diflerent account of the transaction, a difficulty may frequently arise 
 in proving affirmatively that the first witness did make such other 
 statement, without a direct question to that eifect. 
 
 But although the practice above stated is, to a certain extent, sanc- 
 tioned by a principle of convenience, and although, after other at- 
 tempts have failed, it becomes a matter not of mere convenience, but 
 
 of absolute necessity *so to put the question to a witness 
 ^ ^ called to contradict a former one, it is plain that the conve- 
 
 a« to tlic contents of the letter, he mi/^ht be asked if it contained the passai^e 
 r(;<;ited ; for otiierwise it would be impossible to come to a direct contradiction. 
 Where a witnesH was called to contradict a former witness as to a conversation 
 whicli ho )iad denied, it was held that the terms miffht be suffgested to him in 
 tht; first instamte : /<J<hno7ids v. Walker, cor. Al)l)ott, C. J., ?> Stark. (3 E. C. L. 
 11. j 8 ; but see //allctt v. Councn.s, '2 M. .V: Hub. 2o8, infra, p. 171.
 
 LEADING QUESTIQ.NS. 171 
 
 nience so attained to is purchased at the expense of some departure 
 from a general principle, and that it would usually be more satisfac- 
 tory, where that is practicable, that the desired answer should be ob- 
 tained without a direct suggestion, by which a fraudulent witness 
 might be greatly aided. And it seems that the consideration of mere 
 convenience ought not to operate at all where the contents of a par- 
 ticular document, or the details of a particular conversation, are ma- 
 terial* to the issue. As where the question in an action of assumpsit 
 turns upon the terms of a lost written agreement, or on an alleged 
 oral contract, e. g., the warranty of a horse. In such cases each is 
 interested in showino; what the terms of the lost writing or conversa- 
 tion alleged to amount to a warranty really were ; and as the atten- 
 tion of both parties would be previously drawn to the subject, there 
 would be but little inconvenience in adhering to the ordinary course 
 of examination, reserving the power to deviate where the necessity 
 for deviation arose. And it is further observable that in the case of 
 Courteeyi v. Touse/ where Lord Ellenborough ruled that the witness 
 might be *asked whether a particular letter contained a pas- ^ „^^ 
 sage sworn to by another witness, this was to be done after ^ -J 
 exhausting the witness's memory as to the contents of the letter. This 
 decision, therefore, turned not upon a principle of convenience, but 
 of necessity. 
 
 Another illustration of the general principle occurs where details 
 are to be made of such length or difficulty that the memory of the 
 witness will not enable him to give his testimony without assistance. 
 Thus where a witness is called to prove a co-partnership between a 
 number of persons whose names he cannot recollect, the list of names 
 
 ^ Upon this principle, in Hallett v. Cousens, 2 M. & Rob. 238, a witness having 
 denied on cross-examination that he had used certain expressions in a conversa- 
 tion at which the plaintiff and defendant were alleged to have been present, 
 Erskine, J., considering that the conversation was evidence per se, and not 
 proved for the simple purpose of discrediting the witness, held, that the very 
 words could not be suggested to a witness called to prove that they had been 
 used ; and this seems perfectly consistent with principle, inasmuch as a party 
 has a right to have every part of the conversation laid before the jury, which 
 could in any way qualify or explain the expressions as to which the witness had 
 been cross-examined (see Prince v. Samo, 7 Ad. & E. (34 E. C. L. R.) 627, post) ; 
 but it would also appear, from the same case, to be proper to lead the witness's 
 mind to the particular matter, and direct him to confine his attention to that, as 
 the party certainly has no right to have the whole of the conversation, if it in 
 volved independent matter. 
 
 ' 1 Camp. 43, supra.
 
 172 EXAMINATION OF WITNESSES IN CHIEF. 
 
 may be read to him, and he may be asked whether those persons are 
 members of the firm/ ^ 
 
 A witness is examined either as to facts, simply, which he him- 
 self knows, or in some instances as to his own inferences from facts, 
 or as to facts which he has heard from others. In ordinary cases the 
 witness ought to be examined as to facts only, and not as to any 
 opinion or conclusion which he may have drawn from facts, for those 
 are to be formed by a jury, except indeed where the conclusion is an 
 inference of skill and judgment.* 
 
 A witness examined as to facts ought to state those only of which 
 he has had personal knowledge ; and such knowledge is supposed, if 
 not expressly stated upon the examination in chief; and upon cross- 
 examination, his means of knowledge may be fully investigated, and 
 if he has not had sufficient and adequate means of knowledge, his evi- 
 dence will be struck out. It has been said, that a witness must not 
 
 ' Acerro v. Petroni, 1 Stark. C. (2 E. C. L. R.) 100. 
 ^ Goodtitle dem. Revett v. Braham, 4 T. R. 497. 
 
 * In general the principles' laid down in the texts are sustained throughout by 
 the American cases : Snyder v. Snyder, 6 Binn. 483 ; People v. Mather, 4 Wend 
 229 : McLean v. Thorp, 3 Mo. 315 ; U. States v. Dickenson, 2 McLean 325 
 Bank of Northern Liberties v. Davis, 6 W. & S. 285 ; Towns v. Alford, 2 Ala 
 378; Sadler v. Miirrah, 3 How. (Miss.) 195; Turney v. State, 8 S. & M. 104 
 Straicbridge v. Spann, 8 Ala. 820; Hopper v. ComrnHh, 6 Gratt. 684; Able v 
 Sparks, 6 Tex. 319 ; Long v. Steiger, 8 Ibid. 460; Stringfelloiv v. State, 26 Miss 
 157 ;^ Willis v. Quimby, 11 Fost. 485. Putting a question in the alterative does 
 not remove the objection: People v. Mather, 4 Wend. 229. A question to a 
 witness proposed in the form "Whether or not" is not ordinarily objectionable 
 as leading. It may be so, when proposed in that form, if it be otherwise in 
 such terms, that from the nature of the question, in connection with its subject- 
 matter, it suggests to the witness the answer desired : Bartlett v. Hoyt, 33 N. H. 
 151. It is a matter within the discretion of the court, and the allowance of a 
 leading question is not the subject of a writ of error, although the refusal to 
 allow a party to put a leading question who is entitled to do so as on cross- 
 examination, is : Yarboroitgh v. Moss, 9 Ala. 382 ; Sears v. Shafer, 1 Barb. S. C. 
 408 ; People v. Lohman, 2 Ibid. 216 ; Donnell v. Jones, 13 Ala. 490 ; Badlong v. 
 Van Nastrund, 24 Barb. S. C. 25. Contra, Parsons v. Bridgham, 34 Me. 240. 
 A judge at the trial may permit counsel, on a direct examination, to suggest to 
 a witness names, dates and items, provided that the witness has exhausted his 
 memory, and the purposes of justice require such a course to bo taken : Hachins 
 V. People's Mutual Fire Ins. Co., 11 Fost. 238. A question is not leading if it 
 culls for a direct aflirmative or negative answer, and is no more suggestive of 
 one than the other : Spear v. Richardson, 37 N. II. 23 ; Floyd v. State, 30 Ala. 
 511 ; Mathis v. Buford, 17 Tex. 152; Dudley v. Flkins, 39 N. II. 78; Page v. 
 Parker, 40 N. II. 47. And see Trnmmcll v. McDade, 29 Tex. 360; Adams v. 
 Jlarrold, 29 hid. 198 ; heiin v. Peck, 2 Rob. 629 ; Bariis v. hujalls, 39 Ala. 193.
 
 BELIEF — OPINION. 172 
 
 be examined in chief as to his belief ov -persuasion, but only as to his 
 knowledge of the fjiet, since judgment m.ust be given secundum alle- 
 gata et probata ; and a man cannot be indicted for perjury who falsely 
 swears as to his persuasion or belief.** As far as regards *more p^-, -g-, 
 belief or persuasion, which does not rest upon a sufficient or ^ J 
 legal foundation, this position is correct ; as Avhere a man believes a 
 fact to be true, merely because he has heard it said to be so ; but with 
 respect to persuasion or belief, as founded on facts within the actual 
 knowledge of the witness, the position is not true. On questions of 
 identity of persons, and of handwriting, it is everyday's practice for 
 witnesses to swear that they believe the person to be the same, or the 
 handwriting to be that of a particular individual, although they will 
 not swear positively ; and the degree of credit to be attached to the 
 evidence is a question for the jury. And with regard to the second 
 objection, it has been decided that a man who falsely swears that he 
 thinks or believes, may be indicted for perjury."' 
 
 So where professional men and others give evidence on matters of 
 skill and judgment, their evidence frequently does not, and often 
 cannot, from the nature of the case, extend beyond opinion and be- 
 lief. But in general, whenever the inference is one of skill and 
 judgment, the opinion of experienced persons is admissible, for by 
 such means only can the jury be enabled to form a correct conclusion. 
 
 The general distinction is this, that the jury must judge of the facts 
 for themselves, but that wherever the question depends on the exercise 
 of peculiar skill and knowledge that may be made available, it is not 
 a decision by the witness on a fact to the exclusion of the jury, but 
 the establishment of a new fact, relation, or connection, which would 
 otherwise remain unproved. Not to admit such evidence, would be 
 to reject what was essential to the investigation of truth. Thus an 
 engineer may be examined as to his judgment on the effect of an 
 embankment on a harbor, as collected from experiment.'' So 
 
 *upon the question whether a seal has been foro;ed, the tes- 
 
 • . r*l741 
 
 timony of a seal-engraver, as to the difference between the ^ -• 
 
 impression in question and a genuine one, is also admissible.® In 
 
 '' Adams v. Canon, Dyer 53 ; note to Rolfe v. Hampden, Dyer 53. 
 
 " Millar's case, 3 Wils. 427 ; 2 Bl. 881 ; Pedlei/s case, 1 Leach 327 ; Reg. v. 
 Schlesinger, 10 Q. B. (59 E. C. L. R.) 670. 
 
 ^ Folkes V. Chadd, Mich. 23 Geo. III., 3 Dougl. (26 E. C. L. II.) 157 ; Vol. II., 
 tit. Handwriting. 
 
 ' By Lord Mansfield, in Folkes v. Chadd, 3 Dougl. (26 E. C. L. R.) 157. Such 
 evidence is also admissible to show whether a particular handwriting is natural 
 and genuine, or forged and imitated : Carij v. Pitt, Peake Ev. Ixxxv. ; R. v. 
 11
 
 174 EXAMINATION OF WITNESSES IN CHIEF. 
 
 like manner a ship-builder may be examined to state his opinion as 
 to the sea-worthiness of a ship, from a survey made by others/ So 
 the testimony of medical men is constantly admitted with respect 
 to the cause of disease, or of death, in order to connect them with 
 particular acts, and as to the general sane or insane state of the 
 mind of the patient, as collected from the number of circumstances. 
 Such opinions are admissible in evidence, although the professional 
 witnesses found them entirely on the facts, circumstances, and symp- 
 toms established in evidence by others, and without being personally 
 acquainted with the facts. ^ But in such a case evidence is not ad- 
 missible that a particular act for which a prisoner is tried was an act 
 of insanity. '' And, in general, scientific men ought to be examined 
 only as to their opinion *on the facts proved, and not as to the 
 L -I merits of the case.' ^ 
 
 Cator, 4 Esp. C. 117. But in Gurnaj v. Langlands, 5 B. & Aid. (7 E. C. L, R.) 
 330, the court held that the opinion of an inspector of franks, whether a par- 
 ticular writing was in a forged or imitated hand, was of little weight ; and see 
 further, Doe v. Suckermore, 5 Ad. & E. (31 E. C. L. R.) 751. But antiquaries 
 may be called to express their opinion as to the date at which an apparently 
 ancient document was written [Tracy Peerage case, 10 CI. & Fin. 191) ; and the 
 opinion of a person in the habit of receiving letters is, it seems, evidence of the 
 genuineness of a post-mark: Ahhey v. Lill, 5 Bing. (15 E. C. L. R.) 299. But 
 see further, as to post-marks, which are not evidence per se without proof: li. 
 V. Watson, 1 Camp. 215; Woodcock v. Uouldsworth, 16 M. & W. 124; Kent v. 
 Lowen, 1 Camp. 178; Fletcher v. Braddyll, 3 Stark. (3 E. C. L. R.) 64; 
 Plumer's case, R. & R. C. C. 264 
 
 ^ Thornton v. Royal Exchange Assurance Company, Peake's C.37; Chaurand 
 V. Angerstein, 44; Beckwith v. Sydchotham, 1 Camp. 117. 
 
 8 Wright's case, Russ. & Ry. C. C. L. 456 ; R. v. Searle, I Mood. & Rob. 75 ; 
 and see McNaghten' s case, 10 CI. & Fin. 2U0. 
 
 " Ihid. 
 
 ' Thus, in an action for unskilfully navigating a ship, a master of the Trinity 
 House, or otiicr nautical man, cannot be asked whether, having heard the evi- 
 dence, he considers the ship was improperly navigated, for that would be re- 
 quiring him to draw a conclusion of fact and then to give an opinion upon it, 
 and would make him a judge not only of the matter of skill and science but 
 also of the truths of the facts in dispute ; but he may be asked what was the 
 duty of a captain under certain specified circumstances: Sills v. Broion, 9 Car. 
 & F. (.'{S Vj. C. L. R.) 604; or whether, admitting the facts as proved by the 
 plaintii!' to be true, he is of opinion that a collision could have been avoided by 
 proper care on the i)art of defendant's servant: Fenicick v. Bell^ 1 Car. & K. 
 (47 E. C. L. R.) 312. And see Malfon v. Neshit, 1 Car. & P. (12 E. C. L. R.) 70 ; 
 Jameson v. Drinkald, 12 Moore (22 E. C. L. R.) 148. So where the sanity or 
 
 ' PcrHons of skill are allowed to give their opinion in evidence, only in cases 
 where, from the nature of tin; subjcu-t, facts disconnecti^d from sucli oi)inion
 
 OPINION — QUESTIONS OF SKILL. 175 
 
 In order likewise to prove the law of a foreign country, or even of 
 
 Scotland,'' where it does not depend upon the statutes of the United 
 
 Kiniidora, the only proper' evidence *is that of men con- ^ ^„„^ 
 
 . r 1761 
 
 versanf" with the law of the particular country. Upon such ^ -' 
 
 insanity of an individual is the point to be decided by the jury, and medical 
 men who previously knew nothing of the prisoner, but have heard the evidence, 
 are called on to give an opinion, the proper course is not to ask them what their 
 opinion is as to the state of mind of the party, for that would necessarily assume 
 and involve the truth of the evidence which it is for the jury, and not the wit- 
 nesses, to weigh and decide, but they should be asked what is their opinion, 
 assuming the facts stated by the witnesses to be true, as to his state of mind : 
 WNaghtens case, 10 CI. & Fin. 200 ; 1 Car. & K. (47 E. C. L. R.) 135. Where, 
 however, the truth of the facts is not disputed, and the question remaining is 
 one almost exclusively of science, it is usual to allow the question to be thus 
 broadly put, though if objected to, it could not be insisted upon. If doubts 
 exist as to the accuracy of some of the facts, it may perhaps be well in pro- 
 pounding the question to the witnesses to exclude those facts from their con- 
 sideration ; and see Wheeler v. Alderson, 3 Hagg. Eccl. R. 574. 
 
 " Dairy mple v. Dalrymple, 2 Hagg. 54 ; Reg. v. Dent, 1 Car. & K. (47 E. C. L. 
 R.) 97. 
 
 ' Baron de Bode's case, 8 Q. B. (55 E. C. L. R.) 208 ; Sussex Peerage case, 11 
 CI. & Fin. 85. These authorities overrule Clegg v. Levy, 3 Camp. lOG; Millar v. 
 Heinrick, 4 Camp. 155; Pictoii's case, 30 Howell's St. T. 225; Boehtlinck v. 
 Schneider, 3 Esp. 58, where it was thought that the written law of a foreign 
 country must be proved by properly authenticated documents. The Sussex 
 Peerage case also overrules R. v. Dent, so far as the latter case admitted a per- 
 son not peritus virtute officii or virtute professionis to prove foreign law. 
 
 " Sussex Peerage case, 11 CI. & Fin. 85: Bristoio v. Sacqueville, 19 L. -J., Ex. 
 289; Vanderdonckt v. Thellusson. ib. C. P. 12. 
 
 cannot be so presented to a jury as to enable them to pass upon the question 
 with the requisite knowledge and judgment: Jefferson Ins. Co. v. Cotheal, 7 
 Wend. 72. Persons skilled in the knowledge of handwriting are competent to 
 testify concerning it, although they never saw the parties write: Hess v. State 
 of Ohio, 5 Ohio Rep. 6. So a practical surveyor in testifying respecting marks 
 on trees or piles of stones may express his opinion whether they were intended 
 as monuments of boundaries : Davis v. Mann, 4 Pick. 156. In an action for the 
 matei'ials found in building a house and the labor done in erecting it, the testi- 
 mony of master builders, who had examined the house and made an estimate of 
 the expense of erecting it, is admissible to ascertain the amount of damages : 
 Tebhetts v. Haskins, 16 Shep. 283. In an action for a breach of warranty of the 
 soundness of a horse a witness called to give an opinion relative to the defects 
 of a horse's eyes, stated that he was not a farrier, but that he professed to under- 
 stand when he tried a horse, whether his eyes were good or not, though there 
 might be diseases of the eyes of horses with which he was unacquainted : held 
 that the witness might be examined : House v. Fort, 4 Blackf. 293. G. 
 
 See ante, p. 96, note 1.
 
 177 EXAMINATION OF WITNESSES IN CHIEF. 
 
 he obtains a recollection of the facts themselves as distinct from the 
 memorandum, his statement is admissible in evidence.^ A witness is, 
 of course, competent to testify as to his actual present recollection of 
 a fact, although in the interval his memory may have failed, and al- 
 though such defect and the means of restoration may be the subject of 
 comment in cases to Avhich any suspicion is attached. The law, how- 
 ever, goes further, and in some instances permits a witness to give evi- 
 dence as to a fact, although he has no present recollection of the fact 
 itself. This happens in the first place where the witness, having no 
 longer any recollection of the fact itself, is yet enabled to state that at 
 some former time, and whilst he had a perfect recollection of that fact, 
 he committed it to writing. If the witness be correct in that which he 
 positively states from present recollection, viz., that at a prior time he 
 had a perfect recollection, and having that recollection, truly stated it 
 in the document produced, the writing, though its contents are thus but 
 
 ' Feeter v. Heath, 1 1 Wend. 478. It is proper for a witness, who swears to 
 the correctness of his notes of a transaction, and that without them his recollec- 
 tion of the facts is indistinct, to read those notes to the jury : Rogers v. Burton 
 et al., Peck 108. A witness will be permitted to refer to a summary of his testi- 
 mony given on a former trial for the purpose of reviving his recollection : Rioi'- 
 don V. Davis, 9 La. 242. But a witness for plaintiff has no right to refresh 
 his memory by reference to the plaintiffs books, when it does not appear that the 
 entries were made by the witness : Parguad v. Guiee, Adv. 6 La. 77. G. 
 
 See further Welcome v. Batchelder, 10 Shep. 85 ; Vastbinder v. Metcalf, 3 Ala. 
 100 ; Lawrence v. Bates, 5 Wend. 301 ; Owings v. Shannon, 1 A. K. Marsh. 188 ; 
 Columbia v. Harrison, 2 Kep. Const. Ct. 213 ; Babh v. Clemson, 12 S. & R. 328 ; 
 Kei/ V. Lynn, 4 Litt. 338; Kendall v. Stone, 2 Sandf. .Sup. Ct. 269; Neil v. 
 Childs, 10 Ired. 195 ; Rutherford v. Branch Bank, 14 Ala. 92 ; Huff v. Bennett, 
 2 Sel. 337 ; State v. Lull, 37 Me. 246 ; George v. Loy, 19 N. H. 544. The book 
 or paper used to refresh memory need not be produced at the trial : Homeland v. 
 Sheriff of Queen' s County, 5 Sandf. 219; State v. Cheek, 13 Ired. 114. Contra, 
 Harrison v. Middleton, 11 Gratt. 527. For other cases as to refreshing memory 
 by writings, see Peck v. iMke, 3 Lans. 136 ; Mcackam v. Pill, 51 Barb. 65 ; Pur- 
 chase v. Mattison, 2 Rob. 71 ; Pinney v. Andrus, 41 Vt. 631 ; Williams v. Miller, 
 1 Wash. Ter. 105 ; State v. Bacon, 41 Vt. 526 ; Godden v. Pierson, 42 Ala. 370 ; 
 Seaverns v. Trihley, 48 111. 195; Watkins v. Wallace, 19 Mich. 57; Spiker v. 
 Nyedigger, 30 Md. 315; Dugan v. Mahoney, 11 Allen 572; Prather v. Pritchard, 
 20 M<1. 65; Schittler v. Jones, 20 ^Vis. 412; Sclover v. Rexford's Ex., 2 P. F. 
 Smitli 308 ; Wilde v. Hexter, 50 Barb. 448 ; Haach v. Fearing, 5 Rob. 528 ; State 
 V. Tayliir, 3 Orog. 10. A memorandum becomes evidence only when the witness 
 i.s iiuiible after examination to state the particulars from recollection, and when 
 lie can swear that he knew it to be correct at the time it was made : Kelsea v. 
 Fletcher, 48 N. II. 282; Parsons v. Manufaclnrers' Lis. Co., 82 Mass. 463. The 
 opposite party has the right to inspect the memorandum : McKivitt v. Cone, 30 
 Iowa 455.
 
 OPINION — GENERAL RESULTS. 177 
 
 mediately proved, must be true. Sucli evidence, tliough its reception 
 be warranted by sound principles, is not in *ordinary cases' |-^-,-^-i 
 as strong and satisfactory as immediate testimony, for in such '- -I 
 cases, the witness professing to have no recollection left as the facts 
 themselves, there is less opportunity for cross-examination, and fraud 
 is more easily practised.^ 
 
 There is also a class of cases where the testimony of a witness is 
 admissible to prove a fact, although he has neither any recollection 
 of the fact itself, nor mediate knowledge of the fact, by means of a 
 
 * See R. V. St. Martin's, Leicester, 2 Ad. & E. (29 E. C. L. R.) 210. In many 
 cases, such as where an agent has been emijloyed to make a plan or map, and 
 has lost the items of actual admeasurement, all he can state is, that the plan or 
 map is correct, and has been constructed from materials which he knew at the 
 time to be true ; and see Home v. Mackenzie, post, p. 182, n. [g). 
 
 ^ When a witness, of his own free will and accord, draws up a memorandum 
 or has it drawn up under his immediate direction at the time of the fact, or 
 soon afterwards, for the purpose of preserving the memory of it, he may adopt 
 its contents as his testimony ; although at the time of testifying he recollects 
 nothing further than that he had accurately reduced or procured to be reduced 
 the whole transaction to writing. But if the paper was draAvn up weeks after 
 the fact occurred, or if it was drawn up, or procured to be drawn up, by the 
 party in whose favor the witness is called to give evidence, he cannot be allowed 
 to testify to its contents, if he does not recollect them independently of the 
 paper : 0'' Neal v. Walton, 1 Richardson 234. AVhere ship timber was sold, 
 without being scheduled or set apart from similar timber with which it was 
 mingled, a witness called to identify the timber who was unable to do it except 
 by a schedule made some months after the sale, and even with that having no 
 present recollection of the articles enumerated, was admitted : Glover v. Han- 
 newell, 6 Pick. 222; Downes v. Eoioell, 24 Vt. 343; Seavyv. Dearborn, 19 N. H. 
 351; Webster V. Clark. 10 Fost. 245 ; State y. Cohoell, 3 R. I. 132; Tuttle v. 
 Robinson, 33 N. H. 104; Bartlett v. Hoyt, Ibid. 151 ; Halsey v. Sinsebaugh, 1 
 Smith (N. Y.) 4S5 ; Heart y. Hammell, 3 Barr414. Contra, Reddoii v. Spruance, 
 4 Ilarring. 217. A witness to refresh his memory may use a memorandum not 
 made by himself, when, after seeing it, he can recall the facts stated in it, and 
 testify to them as matters of present recollection : Hill v. State, 17 Wis. 675. 
 A witness may use a memorandum to refresh his recollection, although it was 
 not made by himself, if he saw the paper while the facts therein stated were fresh 
 in his recollection and he can say that he then knew they were correctly stated : 
 Coffin V. Vincent, 12 Cush. 98 ; Green v. Canlk, 16 Md. 556. Where a witness has no 
 recollection of a fiict independently of a memorandum in his handwriting and 
 made in the usual course of his business, it is sufficient to authorize its being 
 read in proof of any fact which it would establish : Taylor v. Stringer, 1 Hilt. 
 377 ; Martin v. Good, 14 Md. 398 ; Spring Ins. Co. v. Evans, 15 Md. 54 ; Guy 
 V. Mead, 22 N. Y. 462 ; Fitzpatrick v. Fitzpatrick, 6 R. I. 64 ; Briggs v. Raf- 
 ferty, 14 Gray 525 ; Marely \. Shults, 29 N. Y. 346; Mints y. Slurdevant, 36 
 Ala. 636. Contra, People v. Elyca, 14 Cal. 144.
 
 178 EXAMINATION OF WITNESSES IN CHIEF. 
 
 memorial of the truth of which he has a present recollection. This 
 happens where the memorandum is such as to enable the witness to 
 state with certainty that it would not have been made had not the 
 fact in question been true. Here the truth of the evidence does not 
 wholly depend on the contents of the document itself, or on any 
 recollection of the witness of the document itself, or of the cir- 
 cumstances under which it was made, but upon a conviction arising 
 from the knowledge of his own habits and conduct sufficiently strong 
 to make the existence of the document wholly irreconcilable with the 
 non-existence of the fact, and so to convince him of the affirmative. 
 
 Thus, in proving the execution of a deed or other instrument (one 
 of the most ordinary and cogent cases within this class) where a wit- 
 ness called to prove the execution of a deed sees his signature to the 
 attestation, and says he is thereby sure that he saw the party execute 
 the deed, that is a sufficient proof of the execution of the deed, al- 
 thouorh the witness should add that he has no recollection of the fact 
 r*i ^Qi ^^ ^^^ execution of the deed." The admission of such *evidence 
 is not confined to attestations of the execution of written in- 
 struments.^ A plaintiif called a bankrupt in an action against his 
 assignees to prove the receipt of ,£20 by him from the plaintiff; the 
 witness stated that £20 had been received from the plaintiff, and not 
 carried to account. A rough cash-book of the plaintiff's was then 
 put into the witness's hands, containing the entry, " 4th Nov., 1.822, 
 Debtor, li. Lancaster, check £20, M. L. ;" the witness then said, 
 " The entry of £20 in the plaintiff's book has my initials, written at 
 the time. I have no recollection that I received the money. I know 
 nothing but by the book ; but, seeing my initials, I have no doubt 
 that I received the money." An objection made to the reading 
 of the paper without the stamp was overruled. Lord Tenterden being 
 of opinion that, though it was not in itself admissible evidence to 
 prove the payment of the money, the witness might use it to refresh 
 his memory, and that his saying he had no doubt that he had re- 
 ceived the money was sufficient evidence of the fact. On motion for 
 a new trial, Lord Tenterden said, " Here the witness, on seeing the 
 entry signed by himself, said he had no doubt that he had received 
 the money. The paper itself was not used as evidence of the receipt 
 of the money, but only to enable the witness to refresh his memory, 
 
 " Per Baylcy, .!., in Maiiijliam v. Hubbard, 8 B. & C. (15 E. C. L. R.) 14 ; and 
 8ce liriiHjInc V. (j'oodfiou, r)'Bing N. C. (.''.5 E. C. L. R.) 738. 
 ' I hid.
 
 REFRESHING MEMORY. 179 
 
 and when he had said that he had no doubt that he had received the 
 money, there was sufficient parol evidence to prove the payment." 
 
 It is of course essential that the witness shouhl be enabled, upon 
 seeing the memorandum or other entry, to swear positively to the 
 truth of the fact, although he has no present independent recollection 
 of it.y 
 
 It is not essential that the memorandum should have been con- 
 temporary with the fact. It seems to be sufficient if it has been 
 made by the witness, or by another with his *privity, at a 
 time'' when the facts were fresh in the recollection of the L '- J 
 witness, and that the reading such memorandum restores the recol- 
 lection of the fact which had faded in the memory,* or enables him 
 to swear to the truth of the fact.^ Neither is it necessary that the 
 paper should have been written by the witness himself, provided he 
 recollects having seen it when his memory as to the facts was still 
 fresh, and he remembers that he then knew the statement to be cor- 
 rect.'' ^ A deposition formerly made by an aged witness was allowed 
 
 y R. V. St. Martin's, Leicester, 2 Ad. & E. (29 E. C. L. R.) 210 ; Maugham v. 
 Hubbard, 8 B. & C. (15 E. C. L. R.) 14. 
 
 ^ Wood V. Cooper, 1 Car. & K. (47 E. C. L. R.) 645 ; Smith v. Morgan, 2 M. 
 & Rob. 257. In the case of Sandwell v. Sandicell, Comb. 445, Lord Holt is re- 
 ported to have said, that the memorandum must have been made presently : 
 and in Whitfield v. Aland, 2 Car. & K. (61 E. C. L. R.) 1015, it was held that 
 the entry, if not contemporaneous, should be nearly so, and if it has been made 
 at some time subsequently at the instigation of the party or his attorney, the 
 witness will certainly not be allowed to use it: Steinkeller v. Neioton, 9 Car. & 
 P. (38E. C. L. R.) 313. 
 
 * Tanner v. Taylor, 3 T. R. 754 ; 8 East 284 ; Doe v. Perkins, 3 T. R. 749 ; 
 Sandicell v. Sandicell, Comb. 445 ; Bambert v. Cohen, 4 Esp. C. 213 •, Duchess of 
 Kingston's case, 20 How. St. T. 355 ; Henry v. Lee, 2 Chit. 124 ; Jones v. Stroud, 
 2 C. & P. (12 E. C. L. R.) 196 ; R. v. Hedges, 28 How. St. T. 1367. So a 
 person who has from time to time examined entries in a log-book, whilst the 
 events were fresh in his recollection, may refer to the book to refresh his 
 memory when examined as to a fact recorded there, and which he remembers to 
 have seen there when he had a clear recollection of the circumstances : Bur- 
 rough V. Martin, 2 Camp. 112. 
 
 ^ Burton v. Plummer, 2 Ad. & Ell. (29 E. C. L. R.) 341 ; Burrough v. Martin, 
 
 ^ A witness will be allowed to refer to a report of experts of whom he was 
 one which has been set aside, for the purpose of refreshing his memory, when 
 the fact to be proved was what estimate he had put on the work done, the 
 reference being as to a memorandum deliberately made at the time : Riorden v. 
 Davis, 9 La. R. 242. See also Glover v. Hunnewell, 6 Pick. 222. 
 
 ^ In South Carolina, it is held, that when a witness has made a memorandum 
 at the time of the happening of certain facts, for the purpose of perpetuating
 
 180 EXAMINATION OF AVITNESSES IN CHIEF. 
 
 to be read to him at the trial, in order to refresh his memory;" and 
 
 where a *witness who had received money, and mven a re- 
 
 [*1811 • • 
 
 -■ ceipt for it which could not be read in evidence for want of a 
 
 proper stamp, had become blind, the receipt was read to him in 
 court for a similar purpose."* And where the plaintiff had entered an 
 account in writing of goods and money from time to time forwarded 
 to the defendant, and the defendant had, by his signature at the 
 foot of each page, admitted the truth of the items, but the writing 
 itself could not be given in evidence for Avant of receipt of stamps, as 
 the cash items in each page exceeded 40s., yet it was held that the 
 plaintiff might prove, that upon calling over each article to the de- 
 fendant he admitted the receipt, and that the witness who heard him 
 mio-ht refresh his memory by referring to the account.® So where 
 a person employed to let lands read over the terms to the defendant 
 from a written paper, he was allowed to refresh his memory by that 
 document.^ 
 
 2 Camp. C. 112; Jacob v. Lindsay, 1 East 460; Howard v. Caiifield, 5 Dowl. 
 417 ; Henry v. Lee. 2 Chit. 124; Duchess of Kingston's case, 20 IIow. St. T. 619. 
 A witness may refresh his memory from notes of counsel taken at a former trial : 
 Lawes v. Eeed, 2 Lew. C. C. 152. But Lord Tenterden would not allow the 
 memory of a witness, who had denied that he had been sentenced to imprison- 
 ment in France, to be refreshed by showing him a copy of the sentence of the 
 French court: Meagoe v. Simmons, 3 Car. & P. (14 E. C. L. R.) 75. 
 
 " Vaughan v. Martin, 1 Esp. C. 440 ; Doe v. Perkins, 3 T. R. 749 ; but see 2 
 M, & Rob. 257. A witness was allowed to refer to his deposition taken before 
 commissioners of bankruptcy, to refresh his memory as to date : Wood v. Cooper, 
 1 C. & K. (47 E. C. L. R.) 645 ; but not to go through the whole : Smith v. 
 Morgan, 2 M. & Rob. 257. Whether in a criminal case the prisoners counsel 
 may ofiFer a deposition to a witness on examination to refresh his memory, 
 qucere. Denied by Parke, B., and Coltman, J., York S. Assizes, 1837. Ad- 
 mitted by Patteson, J., at a former assizes; and in a subsequent case at the 
 same assizes, admitted by Parke, B., and Coltman, J. — Mr. Starkie's Note, 3d 
 edit., vol. i., p. 601. 
 
 " Catt V. Howard, 3 Stark. C. (3 E. C. L. R.) 3. Where a witness to prove 
 the receipt of money, after having denied all recollection of it, was shown a 
 written entry with his initials, and then said he had no doubt of his having re- 
 ceived the money ; held that it was not necessary such paper should be stamped, 
 after being looked at to refresh his memory ; the parol evidence to prove the 
 payment was sufficient : Maugham v. Hubbard, 8 B. & C. (15 E. C. L. R.) 14. 
 
 " Jacob V. Lindsay, 1 East 460 ; supra, tit. Stamp. 
 
 ' Lord Bolton v. Tomlin, 5 Ad. & E. (31 E. C. L. R.) 856. 
 
 the memory of them, and can at a subsequent period swear that he made the 
 entry at the time for that purpose and that he knows from that memorandum 
 that the facts did exist, it will be good evidence, though the witness does not 
 retain a distinct recollection of the facts themselves ; and the rule is the same in 
 criminal as in civil cases : State v. liawle, 2 N. »fc McC. 331. M.
 
 REPRESIIING MEMORY. 181 
 
 Whether the writing be used merely as an instrument for restoring 
 the recollection of a fact, or be oifered to be read as containing a 
 true account of particulars entirely forgotten, it must, in conformity 
 with the general principle *of evidence, be the best for the p ^iqqi 
 purpose that the case admits of. For although it be plain 
 that if the recollection of a forgotten fact be completely restored, 
 the means of restoration are immaterial, yet, where the questions 
 are, whether knowledge of the flict once existed, and whether it will 
 be restored by the means proposed, it is obvious that such restoration 
 is more likely to be accomplished by a genuine than by a false, or 
 even imperfect memorandum, and that a false suggestion made by 
 such means is more likely to create an erroneous than to restore a 
 correct impression. The general principle, therefore, operates to the 
 exclusion of the inferior evidence. Where the object is not to restore 
 recollection, but to get at the contents of a writing, on the ground 
 that the witness knows those contents to be true, it is in effect to 
 give the writing in evidence, and consequently to give force to the 
 objection that it is not the best evidence the case admits of. Two 
 steps are essential in such a case to the truth of the conclusion ; first, 
 that the witness knows that the fact was truly stated on a former 
 occasion in some particular document ; secondly, that the document 
 produced contains that statement ; and the best evidence of this is by 
 the production of the original document. In conformity with this 
 principle, it has been held that a mere copy of a writing,^ r*18^1 
 *although made by the witness himself, cannot be used for 
 the purpose.'' 
 
 ^ The rule does not extend to the exclusion of a duplicate original, and in 
 practice a witness is admitted to refresh his memory, as to items of goods de- 
 livered, by a copy recently taken by him from a shop-book, or other documents 
 of his own writing, or written with his knowledge. And where A. having made 
 a survey furnished a report to his employers, and being afterwards called as a 
 witness produced a printed copy of it, in the margin of which, he had, two days 
 before, to assist him in giving explanation, made some jottings, and this report 
 was made up from his original notes, and was in substance, though not in words 
 a transcript of them, the House of Lords held that he might look at such printed 
 copy to refresh his memory : Home v. Mackenzie, 6 CI. & Fin. 628. And where 
 an editor of a newspaper swore that A. wrote the article in question, but the 
 MS. had been been lost, and A. stated that he had been in the habit of writing 
 such articles, and that they were all true, but he did not recollect the article in 
 question; he was allowed by Rolfe, B., to refresh his memory with the newspa- 
 per : Topham v. M'Gregor, 1 C. & K. (47 E. C. L. R.) 320. 
 
 " In the case of Burton v. Plummer, 2 Ad. & E. (29 E. C. L. R.) 348 ; Patte- 
 son, J., observed : " The copy of an entry not made by the witness contempo- 
 raneously, does not seem to me to be admissible for the purpose of refreshing a 
 witness's memory. The rule is, that the best evidence must be produced, and
 
 183 EXAMINATION OF WITNESSES IN CHIEF. 
 
 In analogy to the ordinary rules of documentary evidence, a copy 
 may be used to refresh the memory, on proof that the original lias 
 been lost. Yet, in one instance, it was held' that a copy made by 
 r*18dT ^^^^ witness himself six *months after the fact, from his own 
 memorandum made at the time of the fact, could not be used, 
 although the witness swore that the original was lost, and was at the 
 time of the loss illegible, being covered with figures. 
 
 "Where a witness refreshes his memory from memoranda, it is usual 
 and reasonable that the adverse counsel should have an opportunity 
 of inspecting them'' for the purpose of cross-examining the wit- 
 that rule appears to me to be applicable, whether a paper be produced as evi- 
 dence in itself, or to be used merely to refresh the memory. In the case of Doe 
 V. Perkins, 3 T. R. 752, Lord Kenyon cited a case in Chancery, where a motion 
 was made to suppress a deposition on a certificate from the commissioners that 
 the witness refreshed her memory by minutes consisting of six sheets of paper 
 of her own handwriting, the substance of which she declared she had set down 
 from time to time as the facts occurred to her memory ; that five of the six sheets 
 were drawn up in the form of a deposition by the plaintiff's solicitor, whom she 
 had requested to digest her notes, and reduce them to some order ; and that, after 
 he had done so, she transcribed and altered them wherever it was necessary to 
 make them consistent with her meaning, and that the Lord Chancellor, in giving 
 judgment, said : " Should the Court connive at proceedings like these, deposi- 
 tions would really be no better than afiidavits, for should a witness be permitted 
 to use a paper, especially one drawn up by the attorney of one of the parties, 
 though from memoranda furnished by the witness, I might as well let the attor- 
 ney draw an aflSdavit for her, and use that instead of a deposition. To be sure, 
 in some cases, a man may use papers at law, but I have known some judges 
 (and, I think, I adhered chiefly to that rule myself) let them use only papers 
 drawn up as the facts happened, and all other papers I have bid them put in 
 their pockets ; and if any had been offered which had been drawn by the attor- 
 ney, I should have reprimanded him severely. As to dates and names, which 
 are merely technical, it is quite another thing." In Solomons v. Campbell, cor. 
 Abbott, J., Sitt. after Mich. 1822, also, a witness was not allowed to refresh his 
 memory by a copy taken from a shopbook, neither of the entries having been 
 written by himself. 
 
 ' Jones v. Stroud, 2 C. & P. (12 E. C. L. R.) 19G ; and see Burton v. riummer, 
 2 Ad. & E. (29 E. C. L. R.) 343 ; and also contra, Wood v. Cooper, 1 C. & K. (47 
 E. C. L. R.) 046 ; E. v. Kinloch, 25 How. St. T. 937. 
 
 '' Where a party possessed the means, the recollection of the witness would of 
 course be refreshed before the trial, and then if he testified as to his having an 
 actual present recollection of the fact, it would of course be unnecessary, as re- 
 gardH his testimony in chief, to refer to the moans by which his recollection was 
 n-stored after it had once been lost. Where such means were wanting, or the 
 defect was not anticipated, the attempt may be made as above stated, at the trial ; 
 but as the license might be used for the purpose of putting leading (questions or 
 Buggestions in the most objectional form, and facility might, by such means, be 
 given to fraudiibjiit ti'stiiiiony, it is expedient that opportunity should be aObrded 
 for the prevention of abuse.
 
 HEARSAY. 184 
 
 nesses ;' and he is entitled to cross-examine not only as to the par- 
 ticular part referred to, but as to other parts of the entry.'" 
 
 Where the memory of a witness has been refreshed previous to the 
 trial, it is not necessary that the Avriting by means of which this was 
 done should be produced at the trial ;° the omission to produce it 
 would of course afford matter for observation. Where the witness has 
 no distinct recollection of a fact independently of the writing, the 
 writing itself must be produced." 
 
 *A witness may also in some instances, on principles which 
 have already been adverted to, be examined as to what he '- ^ 
 
 ' Per Eyre, C. J. ; Hardi/'s case, 24 Howell's St. Tr. 824 ; R. v. Ramsden, 2 C. 
 & P. (12 E. C. L. R.) 603 ; Sinclair v. Stemnson, 1 C. & P. (12 E. C. L. 11.) 582-, 
 see Howard v. Caiijield, 5 Dowl. P. C. 417. But if the question founded upon 
 the memoranda wholly fail, the adverse counsel has no right to see them : Reg. 
 V. Dunconihe, 8 0. & P. (34 E. C. L. R.) 309. 
 
 "" Lloi/d V. Frcshjield, 2 C. & P. (12 E. C. L. R.) 325. But if he cross-examine 
 as to other entries in the same book, he makes them his own evidence : Grcjory 
 V. Tavernor, 6 Car. & P. (25 E. C. L. R.) 280. 
 
 " See Kensington v. Inglis, 8 East 273. 
 
 ° Doe V. Perkins, 3 T. R. 749. The question was, at what time the annual 
 holding of several tenants expired. Aldridge had gone round with the receiver 
 of the rents to the difi'erent tenants, whose declarations as to their times of entry 
 were noted down in a book, some by Aldridge and some by the receiver. Al- 
 dridge was examined as to these declarations, the original book not being in 
 court ; he admitted that he had no recollection on the subject, except from ex- 
 tracts made by him from the book; and the evidence was afterwards held by 
 the Court of K. B. to have been inadmissible. 
 
 In the above case, that of Tanner v. Taylor was cited, which had been decided 
 by Legge, B., Hereford Spring Assizes, 1751 ; where, in an action for goods sold 
 and delivered, the witness who proved the delivery took it from an account 
 which he had in his hand ; being a copy, as he said, of the day-book which he 
 had left at home 5 and Mr. Baron Legge held, that if he could swear positively 
 to the delivery from recollection, and the paper was only to refresh his memory, 
 he might make oath of it; but if he could not from recollection swear to the 
 deliveries any further than as finding them entered in his book, then the original 
 should have been produced ; and the witness saying he could not swear from 
 recollection, the plaintiff was nonsuited. In Beeck v. Jones, 5 C. B. (57 E. C. L. 
 R.) 696, a banker's clerk was called to give secondary evidence that a bill was 
 made payable at Mold. He stated that on the preceding day he had looked at 
 an entry in his own handwriting, made when the bank received the bill, which 
 had been redelivered to the defendant, which entry described the bill as payable 
 at Mold ; but he admitted that he had no recollection whatever of the bill or 
 its contents, save what he derived from the entry. The book not being pro- 
 duced, it was objected that evidence in its absence was not admissible; but 
 Coltman, J., having admitted it, the Court of C. P. granted a new trial, on the 
 authority of Doe v. Perkins. And see a case cited from Lord Ashburton's note, 
 3 T. R. 652: Rex v. Duchess of Kingston, 20 How. St. Tr. 355; 8 East 289; 
 Kensington v. Inglis, 8 East 273 ; Hedge's case, 28 How. St. Tr. 1367.
 
 185 EXAMINATION OF WITNESSES IN CHIEF. 
 
 has heard from others ; and evidence of this nature is either orifjinal 
 evidence, which is admissible without previous proof to warrant it, or 
 is merely secondary, and admissible onlj on failure of some other 
 and superior evidence which is no longer attainable. Of the first de- 
 „^_, scription is evidence of reputation, of declarations *which ac- 
 *- -■ company and explain material facts, and of declarations 
 made by the adverse party in the cause. ^ 
 
 Evidence of reputation, subject to the limitations already stated,'' 
 is admissible upon questions as to the boundaries of parishes, manors, 
 or other districts in which many persons possess an interest;''^ upon 
 
 p See tit. Admissions. 
 
 1 It will be seen, from what has already been observed on this subject, that 
 the term reputation, as denoting a class of evidence, has acquired a technical 
 sense, which differs in some respects from the ordinary sense of the term, and 
 includes all evidence, whether oral or written, which on principles already ad- 
 verted to is admissible to prove matters of public and general interest. 
 
 The cases on this subject will be found under the heads of Reputation — Pedi- 
 gree — Prescription — Highway — Common — Manor, and other particular titles 
 to which the decisions relate. 
 
 ■■ See Vol. II., tit. Custom. Hearsay evidence is admissible on a question of 
 parochial or manorial boundary, although the persons who have been heard to 
 speak of the boundary were parishioners, and claimed rights of common on the 
 very wastes which their declarations have a tendency to enlarge : NicJiolls v. 
 Parker, 14 East 331 -, Brisco v. Lomax, 8 Ad. & E. (35 E. C. L. R.) 198 ; Evans 
 V. Rees, 10 Ad. & E. (37 E. C. L. R.) 151 ; Thomas v. Jenkins, 6 Ad. & E. (33 
 E. C. L. R.) 525. So on a question of boundary between old and new land in 
 a manor : Barnes v. Mawson, 1 M. & S. 77. 
 
 Where, in trespass for levying a distress for rates claimed to be due on lands in 
 the parish A., the question was whether they were situate in that or the adjoining 
 parish B. ; it was held, that being a question of boundary, in which reputation was 
 admissible, leases granted by the deceased ancestors of the plaintiff's landlord, 
 describing the land to be situated in £., were properly received in evidence ; also 
 that the accounts of deceased overseers of B., to which the tenants of the lands 
 were successively assessed, and against whose names crosses were made, were 
 admissible in evidence of payment of such rates by them, as a common mode of 
 denoting payment: Plaxton. v. Dare, 10 B. & C. (21 E. C. L. R.) 17. A book of 
 leases of the Dean and Chapter, kept in the chapter-house, is evidence as repu- 
 tation on a question of boundary : Coombs v. Coether, M. & M. (22 E. C. L. R.) 
 398. Upon the (luestion, whether a particular place be parcel of a parish, old 
 entries made by a churchwarden, not charging himself, relating to the repairs 
 of a chapel alleged to belong to tlie place in question, are not admissible : Cooke 
 v. Bankf's, 2 C. & P. (12 E. C. L. K.) 478. But orders of Justices at Sessions 
 are evidence to prove a district to be parcel of a hundred: Duke of Neivcastle v. 
 Hundred of Broxtowe, 4 B. & Ad. (21 E. C. L. R.) 273. Such evidence is not, 
 liowever, evidence to prove the boundary of a private estate : Clothier v. Chap- 
 
 ' Gcri<;ral rcrputatioii is a<lmiHsil)l(! as evidence is cases of boundary: Standin 
 v. Bains, 1 JIayw. 238 ; Talc v. Southard, 1 Hawks. 45 ; Beard's Lessee v. Talbot,
 
 REPUTATION. 187 
 
 questions *relatino;' to the rio;lits of common * oi* other cus- ^ 
 ternary rights" or obligations, upon questions as to public high- L -^ 
 
 ma7i, 14 East 331, n. ; Dunnison v. Elsley, 3 Ea^!;. & Yo. Ti^he Cases 1393, 
 where the testimony of a witness derived from hearsay as to the extent of 
 boundaries and parcels of an estate was rejected ; though in Davies v. Lewis, 2 
 Chitty (18 E. C. L. 11.) 35, hearsay evidence was admitted upon the question 
 whether a particular place was parcel of a sheep-walk. As this, however, was 
 a question of mere private rij^ht, the authority of this case seems to be very 
 doubtful. And, in Thomas v. Jenkins, 6 Ad. & E, (33 E. C. L. II.) 525, where 
 the boundary of an estate was proved to be the same as that of two hamlets, 
 the courts held, that though reputation would not have been admissible as evi- 
 dence to prove the ])Oundaries of the estate, per se, yet it was evidence to prove 
 the boundaries of the hamlet, and through that medium admissible : Steel v. 
 Prickett, 2 Stark. C. (3 E. C. L. R.) 4G6. 
 
 ^ It is evidence equally to prove or disprove the right asserted : Drinkwuier v. 
 Porter, 7 C. & P. (32 E. C. L. 11.) 181 ; Marquis of Anglesea v. Lord Uatherton 
 lOM. &W. 218. 
 
 * See Vol. II., tit. Common, where the cases are set forth. A paper signed by 
 man}' deceased copyholders of a manor, importing what was the general right 
 of common in each copyholder, and agreeing to restrict it, is evidence of repu- 
 tation, even against other copyholders not claiming under those who signed it : 
 Chapman v. Cotdand, 13 East 10. So reputation is evidence of a right of 
 common ^?«r cause de vicinage between two manors : Prichard v. Powell, 10 Q. 
 B. (59 E. C. L. R.) 589. But in Lord Dunraven v. Llewellyn, 19 L. J., Q. B. 
 388, the Court of Exchequer Chamber held that reputation was not admissible 
 evidence on a question as to common appendant, that not being a customary, 
 but a mere private right derived from some grant ; and observed that the reasons 
 given for the judgment in Weeks v. Sparks, 1 M. & S. 679, in which such evi- 
 dence was admitted on the like question, would certainly not be satisfactory at 
 the present day. 
 
 " Reputation is evidence on questions respecting general customs concerning 
 parishes or manors, or the inhabitants of towns and other places : Moreicood v. 
 Wood, 14 East 327, n. Thus, where it is contended that, by the custom of a 
 manor, land shall descend to the eldest female heir, general reputation of such 
 custom, and instances of its having so descended on some occasions, is evidence 
 proper to be left to the jury, though the descent contended for in the particular 
 instance is not exactly similar to any of those that are adduced in evidence ; as 
 where the estate is claimed by the grandson of an eldest sister, and the instances 
 proved are only of descents to eldest daughters and eldest sisters : Doe ex dem. 
 Foster v. Sisson, 12 East 62. In a suit between a copyholder and his lord, the 
 copyholder rested his case upon an immemorial custom of the manor, the exist- 
 ence of which the lord denied. At the trial the lord produced the record of a 
 
 Cooke 142. But not to contradict record evidence on the subject: I^essee of 
 McCay V. Galloway, 3 Ohio 282. So also what has been said by a deceased 
 person in relation to a boundary is admissible as evidence : Caufman v. Congre- 
 gation of Cedar Springs, G Binn. 59; Wolf y. Wyeth, 11 S. & R. 149. But 
 declarations respecting a boundary by a person living, and who might be pi"0- 
 duced, are not evidence : Buchanan v. More, 10 S. & R. 275. G. 
 
 See ante, p. 46, note 1.
 
 188 EXAMINATION OF WITNESSES IN CHIEF. 
 
 ways,^ *questions of pedigree/ questions as to riglits of toll/ 
 L J and of some other questions of public and general interest/^ 
 
 suit by bill in the Exchequer, 4 W. & M., wherein the parties litigant were de- 
 scribed as lord and copyholder (of the same manor), and the parties deposinjf 
 for the copyholder were so described, that if the description were true, they 
 were legally competent to give evidence touching the customs of the manor. 
 Their depositions went to prove a custom inconsistent with that relied upon by 
 the now plaintiff; and to disprove the existence of such last mentioned custom, 
 the loi-d offered them as evidence. It was objected : 1. That the present parties 
 were not privies to the record of the former suit, and therefore could not be 
 affected by any matter therein contained ; it was res inter alios acta. 2. Or sup- 
 posing that the depositions were admissible as evidence of reputation, still that 
 it must be shown that the parties were invested with the characters described 
 in the depositions, and not having which, they were incompetent to depose. 3. 
 Or even waiving the two former objections, that the depositions were inadmissi- 
 ble in evidence, being declarations made post litem motam. The objections 
 were overruled : because, 1. The depositions were not offered as a record estop- 
 ping the plaintiff, but as declarations of deceased persons, touching a reputation 
 or received opinion : their simple assertion would have been evidence ; a for- 
 tiori those made under the sanction of an oath. 2. That at the distance of 
 time, the fact that the witnesses were clothed with the character in which they 
 deposed must be taken for granted ; else it would be requiring a proof which, 
 in all probability, it were impossible to adduce. 3. The two customs — the one 
 litigated in the former, the other in the present suit — were different ; the decla- 
 rations, therefore, though made after the first custom was questioned, were made 
 before the controversy touching the present was raised : Freeman v. Phillips, 4 
 M. & S. 486. Upon a question as to the custom of tithing in the parish of A., 
 evidence that such a custom exists in the adjacent parishes is not admissible. 
 Secus, if the custom be laid as the general custom of the whole country : Fur- 
 neaux v. Hutchins, Cowp. 807. But where a right is claimed by custom in a 
 particular manor or parish, proof of a similar custom in an adjoining parish or 
 manor is not admissible evidence : Furneaux v. Hutchins, Cowp. 807 ; Dougl. 
 512 ; Doe d. Foster v. Sisson, 12 East 62 ; Marquis of Anglesea v. Lord Hather- 
 ton, 10 M. & W. 218. ^ 
 
 ^ See tit. Highway ; lieed v. Jaclcson, 1 East 356 ; R. v. Bliss, 7 Ad. & E. (34 
 E. C. L. 11.) 550. Such evidence is admissible upon an indictment for not re- 
 pairing a public bridge, to show that it is a public bridge : R. v. Sutton, 8 Ad. 
 & E. (35 E. C. L. R.) 516; although, in one case, this seems to have been 
 doubted : R. v. Antrobus, 2 Ad. & E. (29 E. C. L. 11.) 794. So, to prove a public 
 right of landing on a particular spot: Driakwater v. Porter, 7 C. & P. (32 E. C. 
 L. K.) 181. 
 
 y See Pkiji(;ree. 
 
 * A d<!(Ml under the seal of the University of Cambridge, between them and 
 the town of (Jambridge, relating to the toll in question, was held admissible as 
 evidence of reputation respecting them : Brett v. Beales, M. & M. (22 E. C. L. 
 li.) 417 ; see Vol. II., tit. Prescriptiov. 
 
 " Such evidence has been received concerning the jurisdiction of a court upon 
 
 a question whcsther it was or was not a court of record : Roi/ers v. Wood, 2 B. & 
 ' c ! . 
 
 ' Evidence of hearsay is admissible in order to prove pedigree : Strickland v.
 
 REPUTATION. 189 
 
 [*189] 
 
 [*iyo] 
 
 *It is not essential to the reception of sucli evidence, 
 where it is adduced in proof of a right, that a foundation 
 *should previously have been laid by evidence of enjoyment, 
 but without such proof, evidence of this kind is of little 
 weight.'' It is usually essential to the reception of evidence of 
 
 Ad. (22 E. C. L. R.) 245 ; Bmine v. Dew, 2 Peake's C. 204. To prove a custom 
 of a corporation to exclude foreigners from trading in a particular place : Davis 
 V. Morgan, 1 C. & J. r)<S7 ; or a right in a recognized body of persons to unload 
 or deliver certain goods brought to a port: Laybourn v. Crisp, 4 M. & W. 320; 
 or a right in the lord to all the coals under a certain district of a manor : Barnes 
 V. Mau-son, 1 M. & S. 77 ; or a right of free warren over all the copyhold lands 
 in a manor : Lord Carnaervon v. ViUehois, 13 M. & W. 313 ; or a right to a public 
 ferry : Pirn v. Curell, C M. & W. 234 ; or a parochial or district modus : Moseley 
 V. Davies, 11 Price 162; Eudd v. Wright, 1 Phill. on Ev., 9th edit. 240; but 
 not a farm modus: Wells v. Jesus College, Oxford, 7 C. & P. (32 E. C. L. R.) 284. 
 So, to prove a liability to repair a sea-wall : B. v. Leigh, 10 Ad. & E. (37 E. C, 
 L. R.) 398 ; or to disprove a liability to repair a public bridge ratione tenurcB : 
 R. V. Sutton, 8 Ad. & E. (35 E. C. L. R.) 516 ; or to prove a mining custom in a 
 particular district: Crease v. Barrett, 1 C, M. & R. 919; and upon an issue 
 whether A. was a parochial chapelry, evidence by a witness of what he had 
 heard a former incumbent say respecting the chapelry was held admissible, the 
 right involved being of a public nature : Carr v. Mostyn, 5 Ex. 69. But, in R. 
 V. Antrobus, 2 Ad. & E. (29 E. C. L. R.) 788, on the trial of an information 
 against the sheriff of a county for not executing a convict under sentence of death, 
 it was held that a witness could not be examined as to his having heard that 
 it was the custom for the sheriff to be exempted from performing, and for another 
 to perform the duty in that county ; although proof had been given that another 
 had always performed it within the time of living memory, because, as was said, 
 the public were not interested in the question which officer was to perform the 
 duty. Lord Holt, in Hai-court's case, Comb. 902, admitted evidence of reputa- 
 tion to prove, in an action of ejectione firmce for a rectory, that the plaintiff was 
 in holy orders, proof having been previously given of presentation, admission, 
 and institution, and of the reading of the articles. Such a fact seems, however, 
 to be more properly the subject of presumption than of proof by reputation : see 
 the Bishop of Meath v. Lord Belfield, B. N. P. 295. Evidence of reputation that 
 the land in question had belonged to a particular individual, and been pur- 
 chased of him by an alleged testator, has been held to be clearly inadmissible : 
 Doe V. Thomas, 14 East 323. 
 
 " Crease v. Barrett. 1 C, M. & R. 919 ; per cur. Lord Dunraven v. Llewellyn, 
 19 L. J., Q. B. 388. 
 
 Poole, 1 Dall. 14. So also in favor of freedom : Jenkins v. Tom, 1 Wash. 123 ; 
 Gregory v. Baugh, 4 Rand. 611. But evidence of hearsay fi-om the father or 
 mother is not admissible in a question of age: Albertson v. Robeston, 1 Dall. 9. 
 Nor for the purpose of proving a person's birth-place : Wilmington v. Burling- 
 ton, 4 Pick. 174. Common reputation is the best evidence of the state of a man's 
 property when collaterally questioned : State v. Cochryn, 2 Dev. 63. G. 
 
 See ante, p. 46, note 1. 
 12
 
 190 EXAMINATION OF WITNESSES IN CHIEF. 
 
 any declaration or entry falling within this description, that it 
 should have been made ante litem ir.otam ;'^ but the circumstance 
 that it was made with the express intention of preventing dispute/ 
 or that it was made by a person whose title it supports,* or that it 
 was made by one who was, or believed himself to be in pari jure 
 with the party relying on the declaration,^ will not exclude the evi- 
 dence. 
 
 *In other cases a witness may be examined as to matter 
 
 r*1911 • • 
 
 L -J of hearsay, where the evidence is admissible as secondary 
 
 evidence.^ Such evidence is in some instances admissible to prove 
 the testimony given by a witness in a former suit between the same 
 parties, who is since deceased ;^ but in this, as well as in all other 
 cases where such secondary testimony is admitted, it is necessary to 
 lay the foundation, by previous proof, that the superior evidence, in 
 place of which the secondary evidence is offered, is no longer attain- 
 able. In order to warrant the reception of evidence of what a de- 
 ceased witness swore on a former trial between the same parties, it 
 is necessary to prove, not only the death of that Avitness, but also 
 that the testimony was given in a cause legally depending between 
 the same parties.' After such evidence has been given, parol evi- 
 dence of what the deceased witness swore upon the former trial is 
 admissible.'' 
 
 " Berkeley Peerage case, 4 Camp. 401 ; Slaney v. Wade, 1 Myl. & Cr. 338 ; 
 Freeman v. Phillips, 4 M. &. S. 486 ; Richards v. Bassett, 10 B. & C. (21 E. C. 
 L. 11.) 657. But although this be generally true as to mere traditionary decla- 
 rations, the rule is not, and indeed cannot be applicable to verdicts and judg- 
 ments which fall within the general description of evidence by reputation: see 
 Reed v. Jackson, 1 East 356. Cases of this description stand, in fact, upon a 
 foundation somewhat different from ordinary declarations or entries by private 
 persons. On this subject some observations will afterwai-ds be made. 
 
 ^ Berkeley Peerage case, 4 Camp. 418; Monkton v. Attorney- General, 2 Russ. 
 & M. 147, i64 ; Slaney v. Wade, 1 M. & C. 338. 
 
 •» Doe d. Jenkins v. Davies, 10 Q. B. (59 E. C. L. R.) 314. 
 
 ^ Monkton v. Attorney- General, 2 Russ. & M. 159. 
 
 * Supra, part i. cap. 3. But evidence cannot be given of declarations by a 
 deceased person, that a document purporting to be attested by him was actually 
 forged by him : Stobart v. Dryden, 1 "SI. & W. 615. 
 
 '' Lord Palmerston's case, cited 4 T. R. 2U() ; Mayor of Doncaster v. Day, 3 
 Taunt. 262. 
 
 ' See Ijclow, tit. Judicial Proceedings — Deposition. 
 
 '' WliiTo a witness on a former trial of an issue out of Chancery died, and a 
 new trial was granted, parol evidence of what such witness had sworn was held 
 to be admissible, notwithstanding an order for reading the depositions of such 
 witnesses had died since the first trial : Tod v. Winchelsca, Earl of, 3 C. & P. 
 (14 E. (.'. I.. 1{.) 387.
 
 MATTERS OF CONFIDENCE. 191 
 
 Previous also to the admission of evidence of traditionary declara- 
 tions, which tlie witness has heard made by others, it is necessary 
 to prove the death of the parties who made them. And where the 
 declarations of deceased persons are admissible on special grounds, 
 the circumstances which warrant the reception of the evidence require 
 collateral proof.^ 
 
 It has already been seen that the law, upon grounds of 
 *policy,'" in some instances, precludes a witness from reveal- \-n:-ino-} 
 ing matters of political or professional confidence. And, 
 therefore, upon a trial for high treason, it was held that although a 
 witness who had made communications in order to their transmission 
 to the Government, might be properly asked whether he had made 
 such communication to any magistrate, and that he could be further 
 asked to whom he made such communication ;" yet a majority of the 
 judges" were of opinion that on the witness having admitted that he 
 had communicated what he knew to a friend, which friend had ad- 
 vised him to make the same communication to another ; and having 
 stated that such friend was not a magistrate, he could not be asked 
 who that friend was, on the ground that the person by whose advice 
 the information was given to a person standing in the situation of a 
 magistrate, was in effect the informer. So a witness who has been 
 employed by an officer to collect evidence as to the proceedings of 
 suspected persons, is not allowed to disclose the name of his em- 
 
 ^ For instances where such evidence is admissible, and the nature of the proof 
 previously requisite to warrant its admission, see below, tit. Entries by Third 
 Persons. 
 
 " Where a commander in-chief directed the defendant (a major-general) with 
 six other officers, to inquire into the conduct of the plaintiff, and to report the 
 opinion of those officers, which was done accordingly, and the plaintiff brought 
 an action for an alleged libel contained in that report, and the secretary of the 
 commander-in-chief attended with the minutes of the report, the Court refused 
 to allow it to be read : Home v. Beiitiack, 2 B. & B. (6 E. C. L. R.) 130. So 
 official communications between the governor and law officer of a colony as to 
 the state of the colony: Wyatt\. Gore, Holt's C. (3 E.G. L. R.) 299; or between 
 a governor and a military officer under him : Cooke v. Maxwell, 2 Stark. C. (3 
 E. C. L. R.) 183 ; or between an agent of government and a secretary of state: 
 Anderson v. 8ir W. Hamilton, 2 B. & B. (6 E. C. L. R.) 156, are privileged; or 
 the East India Company and the Board of Control : Smith v. The East India 
 Company, 1 Phil. 50; or an officer of customs and the commissioners. 
 
 ° Hardy's case, 24 IIow. St. Tr. 808 ; R. v. Watson, 32 How. St. Tr. 100. 
 
 ° The Lord Chief Baron Macdonald and Buller. J., were of opinion that the 
 question was proper ; Lord C. J. Eyre, Mr. Baron Hotham, and Mr. J. Grose, 
 were of a different opinion.
 
 193 EXAMINATION OF WITNESSES IN CHIEF. 
 
 ^ -, plover, or the nature of the connection that subsisted *be- 
 r*1931 '^ -^ ' 
 •- -■ tween them.^ The rule of public policy which protects a 
 
 witness from being asked such questions as would disclose the in- 
 former, if he were a third person, equally applies to questions which 
 would disclose whether the witness himself gave the information ; 
 therefore, on an information by the Attorney-General for a breach of 
 the revenue laws, a witness for the Crown cannot be asked, in cross- 
 examination, "Did you give the information T'"! But there is no 
 such privilege in cases where the communication was not made in the 
 discharge of official duty, or where its disclosure does not violate 
 oflScial confidence/ ^ 
 
 In some other instances also, witnesses on grounds of general 
 policy are not allowed to be examined. Thus a member of Parlia- 
 ment cannot be cross-examined as to what has passed in Parlia- 
 ment.^ And upon the same principle it would, no doubt, be held 
 that a privy councillor could not be examined as to disclosures made 
 before the queen in council.* Lord Kenyon is in one instance re- 
 ported to have held that it was competent to the plaintiff's counsel, 
 in an action for a malicious prosecution, to inquire of a grand juror 
 whether the defendant was prosecutor of an indictment." being of 
 r*iQd.l op'^ion that an answer to such *an inquiry would not in- 
 fringe upon the witness's official oath.^ But Lord Ellen- 
 borough, C. J., has since said that he had doubts upon the point, 
 and many eminent men had entertained doubts upon it.^ And grand 
 jurors have not been allowed to disclose Avho, or how many were pre- 
 
 P R. V. Hardy, 24 How. St. Tr. 753. 
 
 1 Att.-General v. Briant, 15 M. & W. 1G9. 
 
 ■• Blake v. Pilford, 1 M. & Rob: 198. 
 
 » PlutikeU V. Cobbett, 29 How. St. Tr. 71. The action was for a libel; and 
 on the defendant's inquiring on ci'oss-examination as to expressions used by 
 the plaintiff in parliament, Lord Ellenborough observed 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. 
 
 ' Evidence was permitted to be given by a privy councillor against Lord 
 Strafford, of confidential advice given by the latter to the King at the council- 
 table : 4 Inst. 54 ; a proceeding justly reprobated by Lord Clarendon. 
 
 " Syhe.s v. Dunbar, 2 Sel. N. P. 1075, II th ed. ; Freeman v. Arkell, 1 C. & P. 
 (12 E. C. L. R.) 137. See Lee v. Birrell, 3 Camp. 337, where it was held that a 
 (rlork to Commissioners of Taxes was bound to produce his books and answer 
 all questions relevant to the matter, notwithstanding his oath of office. 
 
 * '"The King's counsel, your own, and your fellows' you shall keep secret." 
 
 y Watson's case, 32 How. St. Tr. 107. 
 
 Ah to jirivileges of officers of justice : U. S. v. Muses, 4 Wash. C. C. 726.
 
 CROSS-EXAMINATION OF WITNESSES. 194 
 
 sent when a case was brought before them, or who agreed, or refused 
 to find the bill of indictment :'■ neither can they be called to detail 
 the evidence on which the bill was found,* or to show that a witness 
 gave before them evidence different from that he has given on the 
 trial,'' or to explain their finding." And tlie clerk attending the 
 grand jury is included in the same rule.*^ 
 
 So it has been seen that the law, on grounds of extrinsic policy, 
 prohibits the disclosure of confidential communications between a 
 counsel, or an attorney and his client;" and also usually prohibits a 
 husband or wife from giving testimony against the other. ^ 
 
 When the witness has been examined in chief, the adverse party is 
 at liberty to cross-examine him.^ The *power and opportu- r^-inr-t 
 nity to cross-examine, it will be recollected, is one of the 
 principal tests which the law has devised for the ascertainment of 
 truth, and this is certainly a most efficacious test. By this means 
 the situation of the witness with respect to the parties and the sub- 
 
 ^ R. V. 3farsh, 6 Ad. & E. (33 E. C. L. R.) 236. 
 
 ^ R. V. Watson, 32 How. St. Tr. 107. 
 
 ^ 12 Vin. Abr. Evid. H. 
 
 « R. V. Cooke, 8 C. & P. (34 E. C. L. R.) 584. 
 
 '^ 12 Vin. Abr. Evid. B. a. o. 
 
 * Supra, and see Vol. II., tit. Confidential Communications. In the case of 
 Curry v. Walter, 1 Esp. C. 456 ; Eyre, C. J., held that it is at the option of a bar- 
 rister, whether he will give evidence of what he stated to the Court upon mak- 
 ing a motion. Qu. 
 
 ' Supra, and see Vol. II., tit. Husband and Wife. 
 
 ^ In criminal cases the right to cross-examine is not strictly confined to wit 
 nesses who have been examined in chief. For, although the prosecutor is not 
 bound to call all the witnesses whose names are on the back of the bill of in" 
 dictment, the judge may do so, and in that case the prisoner's counsel may cross- 
 examine them: R. v. Simmonds, 1 C. & P. (12 E. C. L. R.) 84; R. v. Beezley, 4 
 C. & P. (19 E. C. L. R.) 220 ; R. v. Bull, 9 C. & P. (38 E. C. L. R.) 22 ; R. v. 
 Vincent, 9 C. & P. (38 E. C. L. R.) 9. The judge may call such a witness for the 
 purpose of suffering him to be cross-examined, although he has not been ex" 
 amined before the grand jury : R. v. Bolle, 6 C. & P. (25 E. C. L. R.) 18 ) ; and 
 even although the witness's name be not on the back of the indictment: R. v. 
 Holdeii, 8 C. & P. (34 E. C. L. R.) 609 ; R. v. Chapman, ib. 558 ; R. v. Orchard, 
 ib., 559; R. V. Stroner, 1 C. & K. (47 E. C. L. R.) 650. But the prisoner's 
 counsel having cross-examined him, cannot call witnesses simply to contradict 
 him : R. v. Bodle, 6 C. & P. (25 E. C. L. R.) 186. 
 
 ^ As to cross-examination generally, see People v. Miller, 33 Cal. 99 ; Hamper 
 V. Lamping, Ibid. 641 ; Thornton v. Hook, 36 Ibid. 223 ; Detroit R. R. Co. v- 
 Van Steinbury, 17 Mich. 99 ; Toole v. Nichol, 43 Ala. 406 ; Hay v. Douglas, 8 
 Abb. Pr. N. S. 217 ; Kelsey v. Universal Ins. Co., 35 Conn. 225 ; Watts v. Water- 
 bury, 42 Vt. 201.
 
 195 CROSS-EXAMINATION OF WITNESSES. 
 
 ject of litigation, his interest, his motives, his inclination and preju- 
 dices, his means of obtaining a correct and certain knowledge of the 
 facts to which he bears testimony, the manner in which he has used 
 those means, his powers of discerning facts in the first instance, and 
 his capacity for retaining and describing them, are fully investi- 
 gated, and ascertained, and submitted to the consideration of the jury, 
 who have an opportunity of observing the manner and demeanor of 
 the witness; circumstances which are often of as high importance as 
 the answers themselves.'' It is not easy for a witness who is subjected 
 to this test, to impose upon the court ; for however artful the fabri- 
 cation of the falsehood may be, it cannot embrace all the circum- 
 stances to which the cross-examination may be extended ; the fraud 
 is therefore open to detection for want of consistency between that 
 which has been invented, and that which the witness must either 
 represent according to the truth, for want of previous preparation, 
 or misrepresent according to his own immediate invention. In the 
 latter case, the imposition must obviously be very liable to detection ; 
 so difficult is it to invent extemporaneously, and with a rapidity equal 
 to that with which a series of questions is proposed, in the face of a 
 court of justice, and in the hearing of a listening and attentive mul- 
 titude, a fiction consistent with itself and the other evidence in the 
 cause.' 
 
 r*1Qn *^ witness when once called, sworn and examined, al- 
 though merely as to the formal proof of a document, may be 
 cross-examined, although he be the substantial party in the cause.* ^ 
 And it has been held, that if a witness has been once called into the 
 box and sworn, he may be cross-examined by the opposite side, al- 
 though he has not been examined in chief.'' But it has since been 
 
 " Bac. Abr. Ev. E. ; Hob. 325 ; Vaugh. Rep. 143. 
 
 * Morfjan v. Brydges, 2 Stark. C. (3 E. C. L. R.) 314. So in a criminal case i 
 R. V. Brooke, 2 Stark. C. (3 E. C. L. R.) 472. 
 
 " Phillips V. Earner, 1 Esp. C. 357 ; B. v. Bronl-e, 2 Stark. C. (3 E. C. L. R.) 
 472. 
 
 ' Evidence obtained in a direct examination is not admissible when the witness 
 dies before there is an opportunity for a cross-examination : Kissam v. Forrest, 
 25 Wend. 051. 
 
 ^ Where a witness has been sworn in chief, the opposite party may not only 
 cross-examine him in relation to the point which lie was called to prove, but he 
 may examine him as to any matter embraced in the issue ; and the party who 
 ori;!;inally called such witness and availed himself of his testimony, cannot subse- 
 quently object to him on the firoiind of interest any more than he can impeach 
 ]\'\H ^'■eiKTai character: Fullon liimk v. SluJJ'ord, 2 Wend. 483 ; Varrick v. Jack- 
 son, 2 Wend. ItW,, and 7 Cow. 23S.
 
 PRACTICE OF. 196 
 
 ruled, that where a witness is merely called to produce a writing in 
 his possession, and no question is asked, he need not be sworn, and 
 the adverse party is not entitled to cross-examine.' And even when 
 a Avitness is sworn by mistake : and tlie mistake is discovered before 
 any question is put, the same rule applies ;"" also where a witness was 
 sworn, and having answered an immaterial question was stopped by 
 the judge, this was held to give no right to cross-examine him." 
 And where, before the passing of Lord Denman's Act, in an action 
 by the assignees of a bankrupt, the petitioning creditor was called 
 for the purpose of producing the bill of exchange on which the debt 
 was founded, the court would not permit him to be cross-examined 
 by the defendant, since he could not have been examined by the 
 plaintiffs." But, in general, if the witness be sworn, and would be a 
 competent witness for *the party calling him, the adversary r^iny-i 
 will be entitled to cross-examine him, although he has not 
 been examined in chief,'' unless he was sworn by mistake. "^ 
 
 The courts do not usually exclude a party on the cross-examina- 
 tion of a witness from putting leading questions, although the witness 
 betrayed an anxiety to serve that party ; it is however obvious that 
 evidence so obtained is very unsatisfactory, and is open to much 
 observation. ■■ Although upon cross-examination a counsel may put 
 
 • Simpson v. Smith, cor. Holroyd, J., Nottingham Summer Ass. 1822, 2 Phil, 
 on Ev. 397, 9th ed. ; and per Bayley J., Lancaster Spring Assizes, 1824. In an 
 action for a malicious prosecution, the magistrate who committed the plaintiff 
 was called to produce the information, but was asked no question, and the 
 learned judge held that the defendant's counsel were not entitled to cross- 
 examine him : Davis v. Dale, Mood. & M. (22 E. C. L. R.) 514 ; 4 C. & P. (19 
 E. C. L. R.) 335 ; see also Summers v. Moseley, 2 Cr. & M. 477 ; Rush v. Smith, 
 1 Cr., M. & R. 94; Pernj v. Gibson, 1 Ad. & E. (28 E. C. L. R.) 48. So in 
 criminal cases: R. v. Murlis, Moo. & M. (22 E. C. L. R.) 515. 
 
 "^ Wood V. Mackinson, 2 M. & Rob. 273 ; Clifford v. Hunter, 3 C. & P. (14 E. 
 C. L. R.) 16. 
 
 ° Creevtj v. Carr, 7 C. & P. (32 E. C. L. R.) 65. 
 
 Reed v. James, 1 Starkie's C. (2 E. C. L. R.) 132. 
 
 P Phillips V. Earner, 1 Esp. C. 357 ; R. v. Brooke, 2 Stark. C. (3 E. C. L. R.) 
 473. 
 
 1 Clifford V. Hunter, 3 C. & P. (14 E. C. L. R.) 60 ; Rush v. Smith, 1 Cr., M. 
 & R. 94. 
 
 '' I have heard Lord Tenterden, C. J., express himself to that effect more than 
 once. In Hardy^s case, 24 How. St. Tr. 755, upon a trial for high treason, a 
 witness having been called for the prosecution who was favorable to the 
 prisoner, and who had been a member of the corresponding Society, was asked 
 whether particular expressions, which were suggested to him, had not been
 
 197 CROSS-EXAMINATION OF WITNESSES. 
 
 leading questions, those questions must not assume facts to have 
 been proved which have not been proved, or that particular answers 
 have been given contrary to the facts. ^ The witness cannot be cross- 
 examined as to the contents of a written document which is not pro- 
 r*iqftl duced ;' nor as to *the contents of a written document which 
 is in the hands of the adversary, and which he has had notice 
 to produce ; for this is part of the case of the party who cross- 
 examines, which cannot be gone into until that of his adversary has 
 been concluded. 
 
 It has been said that Avhere a witness has been examined by one 
 party, he may afterwards be cross-examined by the same party as 
 an adverse witness, wdien he is called by the adversary as one of his 
 own Avitnesses. If a party omit, from prudential motives, to examine 
 his adversary's witness as to any branch of his own case, there seems 
 to be no reason wdiy, when he afterwards adopts him as his own wit- 
 ness, he should not be so considered to all purposes, and why the 
 adversary should not then be entitled to cross-examine him. The 
 same witness may know distinct parts of the transaction, one branch 
 of which makes for the plaintiff, and the other for the defendant ; 
 and if each party call him as his own witness, there seems to be no 
 reason why each should not be in turn bound by the same principle ; 
 why each, in examining into his own case, should not be precluded 
 from putting leading questions, and be entitled to cross-examine as 
 to his adver8ar}''s case.^ And when a witness on the bill was ten- 
 used by the members of that society, and Lord Chief Justice Eyre informed 
 the counsel that he could not put words into the mouth of the witness, and 
 that this was contrary to the practice of the court, and to his opinion. And 
 Buller, J., upon the same trial, said, "You may lead a witness, upon cross- 
 examination, to bring him directly to the point as to the answer ; but not go 
 the length, as was attempted yesterday, of putting into the witness's mouth 
 the very words which he is to echo back again." In the late case of Parlcin v. 
 Moon, 7 C. & P. (32 E. C. L. R.) 408, Alderson, B., said: "I apprehend you 
 may put a leading question to an unwilling witness on the examination in chief, 
 but you may always put a leading question in cross-examination, whether a 
 witness be willing or not." 
 
 * Uill V. Cnoinhe, cor. Abbott, J., Exeter Spring Assizes, 1818; Handleij \. 
 Ward, cor. Abbott, L. C. J., Lancaster Spring Assizes, 1818. 
 
 ' Sainlhill v. Bound, 4 Esp. C. 74. But the right of cross-examination is not 
 limited to the matter as to which the witness has been examined in chief, even 
 in equity: The Mayor, &c., of Berwick-vpoii-Tweed v. Murray, 19 L. J., Chan. 
 281. 
 
 ' A party cannot introduce his case to the jury by cross-examining the wit-
 
 PRACTICE OF. 198 
 
 dered, but not examined by the prosecutor, and was examined for the 
 prisoner, it was beld he might be cross-examined by the prosecutor.^ 
 
 The mode of examination is, in truth, reguhited by the discretion 
 of the court, according to the disposition and temper of the witnesses ; 
 the court frequently permitting, as before stated, an adverse witness 
 to be cross-examined by the party who calls him. 
 
 For the purpose of furthering the object of cross-examination, the 
 court, will, in general, at the instance of either party,'' direct that 
 the witnesses shall be examined each *separately apart from 
 the hearing of the rest ;'' a strong test to try the consistency '- -^ 
 of their account ;'' and the same indulgence may be granted to a 
 
 y R. V. Harris, 7 C. & P. (32 E. C. L. R.) 581. 
 
 ^ The court will order the witness on the part of the defendant out of court 
 even after the plaintiff's case is closed : Taylor v. Lawson, 3 C. & P. (14 E. C. L. 
 II.) 543; Williams v. Hulie, 1 Sid. 131. So either party at any period of the 
 trial may require witnesses to be ordered out of court : Soutliey v. Nash, 7 C. & 
 P. (32 E. C. L. R.) 632. 
 
 * Attorney- General v. Bulpit, 9 Price 4 ; Taylor v. Lawson, 3 C. & P. (14 E. C. 
 L. R.) 543. In the House of Lords, no witness but the person under examina- 
 tion is allowed to be present: Ibid. It is almost a matter of right to have the 
 witness ordered out of court when an argument is going on respecting his evi- 
 dence: R, v. Murphy, 8 C. & P. (34 E. C. L. R.) 307. 
 
 ^ No falsehoods are so difficult to be detected as those which are mixed up 
 with a great portion of truth ; the greater the proportion which the true facts 
 bear to the false ones, the less opportunity will there be to detect the false by 
 comparison with facts ascertained to be true. An ingenious mode of proving 
 an alibi with consistency has long been known and practiced by roguish adepts. 
 The intended witnesses meet and pass the afternoon or evening together in con- 
 vivial entertainment: when they are afterwards examined, they are all consistent 
 
 nesses of the adverse party : Ellmaker v. Buckley, 16 S. & R. 72 ; McKinley v. 
 McGregor, 3 Whart. 369 ; Hartness v. Boyd, 5 Wend. 563. G. 
 
 If a party wishes to examine ?. witness of the opposite side with regard to 
 new matter not introduced by the opposite party, he must make the witness his 
 own by introducing him in a subsequent part of the cause : Philadelphia and 
 Trenton Railroad Co. v. Stimpson, 14 Pet. 448 ; Hartness v. Boyd, 5 Wend. 563; 
 Floyd V. Bovard, 6 W. & S. 75 ; Castor v. Bavington, 2 Ibid. 505 ; Rucker v. 
 Eddings, 1 Mo. 115 ; Beat v. Nichols, 2 Gray 262 : Broum v. State, 28 Ga. 199 ; 
 Pat ton v. Hamilton, 12 Ind. 256 ; Dearmond v. Dearmond, Ibid. 455. Cross- 
 examination must be confined to matters testified in chief: Helser v. McGrath, 
 2 P. F. Smith 531 ; Bell v. Chambers, 38 Ala. 660 ; Chicago R. R. Co. v. Northern, 
 Illinois Co., 36 111. 60. When a witness has been examined in chief by the 
 plaintifi", he cannot, after the defendant has ofi'ered evidence to contradict what 
 the witness has said, recall him simply to repeat what he said in the first 
 examination : Hudspeth v. Allen, 26 111. 60. As to new matter on cross- 
 examination, see Ferguson v. Rutherford, 7 Nev. 385 ; Sanford v. Sanford, 5 
 Lans. 486; 61 Barb. 293.
 
 199 CROSS-EXAMINATION OF WITNESSES. 
 
 prisoner, but not as a matter of right." An order of exclusion 
 does not extend to an attorney in the cause, if his presence in court 
 be necessary/ Where a witness remains in court after an order for 
 the exclusion of witnesses, the rejection or admission of his testimony 
 is a question for the discretion of the judge under all the circum- 
 
 .-. ^^^-, stances of the case i'' *thus, where the witness remained from 
 r 2001 . . . 
 
 L -• mistake, and from no undue motive, his testimony was re- 
 ceived/ But where, after witnesses had been ordered out of court, 
 one had returned, and heard another give his evidence, the judge 
 allowed him to be examined as to facts not sworn to by any previous 
 witness, but with liberty to move to enter a nonsuit.^ In the Court 
 of Exchequer, however, the rule for the rejection of such a witness, 
 whether for the Crown or the defendant, in revenue cases, is known, 
 and inflexible/ ^ 
 
 It is here to be observed, that a witness is not to be cross- 
 examined as to any distinct collateral fact for the purpose of 
 afterwards impeaching his testimony by contradicting him ; for 
 this would render an inquiry, which ought to be simple, and con- 
 fined to the matter in issue, intolerably complicated and prolix, 
 by causing it to branch out into an indefinite number of collateral 
 issues/ In the case of Spencely v. Willott,^ which was a penal action 
 
 as to the circumstances which attended their meeting, for so far they relate 
 nothing more than the truth ; they misrepresent nothing but the time when the 
 transaction took place, which, for the purpose of the alibi, is of course repre- 
 sented to be that of the robbery. 
 " B. V. Cook, U How. St. Tr. 348 ; R. v. Gooden, 17 How. St. Tr. 1015. 
 
 * Pomeroy v. Baddeley, Ry. & M. (21 E. C. L. R.) 430 ; Everett v. Lowdham, 
 5 C. & P. (24 E. C. L. R.) 91 ; R. v. Webb, Sarum Summer Ass. 1819, cor. Best, 
 J., contra. 
 
 ® A new trial in one case was granted because a witness's testimony had been 
 rejected on that ground :^er Alderson, B., in Cooke v. Nethercote, 6 C. <fc P. (25 
 E. C. L. R.) 741 ; and the case reported in the note ; see also Beamon v. Ellice, 
 4 C. & P. (19 E. C. L. R.) 585; R. v. Wi/lde, 6 C. & P. (25 E. C. L. R.) 380; 
 Thomas v. David, 7 C. & P. (32 E. C. L. R.) 350 ; R. v. Colley, Mood. & M. (22 
 E. C. L. R.) 329. The witness is liable to attachment for contempt: Chandler 
 V. Home, 2 M. & Rob. 423. 
 
 ' R. V. Collet/, Moo. & M. (22 E. C. L. R.) 329. 
 
 « Beamon v. Ellice, 4 C. & P. (19 E. C. L. R.) 585. 
 
 '' Attorney- General v. Bulpit, 9 Price 4; Parker v. McWilliam, 6 Bing. (19 E. 
 C. L. R.) GH3 ; Thomas v. David, 7 C. & P. (32 E. C. L. R.) 351. 
 
 ' 7 East 108. See Mr. J. Ilolroyd's observation on the case, 2 Stark. C. (3 E, 
 
 * As to the separate examination of witnesses, see Anon., 1 Hill (S. C.) 251 ; 
 State V. Sellers, 2 Halst. 220 ; State v. Sparrow, 3 Murph. 487 ; State v. Brook- 
 shire, 2 Ala. 303 ; Keith v. Wilson, fi Mo. 435 ; Nelson v. State, 2 Swan. 237. 
 
 ' A witness cannot be asked a collateral question, irrelevant to the matter in
 
 AS TO COLLATERAL FACTS. 201 
 
 for usury, the defendant's *counsel Avere not permitted to ^,^^,^ 
 
 r*2011 
 cross-examine as to other contracts made on the same days ^ " -* 
 
 with other persons, in order to show that the contracts in question 
 were of the same nature, and not usurious, if the witness answered 
 one way, or to contradict him if he answered the other way. And 
 should such questions he answered, evidence cannot afterwards he 
 adduced for the purpose of contradiction.'' The same rule ohtains, 
 if a question as to a collateral fact he put to a witness for the pur- 
 pose of discrediting his testimony ; his answer must be taken as 
 conclusive, and no evidence can be afterwards admitted to contra- 
 
 C. L. R.) 156 ; Ilarris v. Tij^J^eit, 2 Camp. 638. It is an acknowledged law of 
 evidence, said Lord Cottenham, C, in givino; judgment in the House of Lords in 
 Tennant v. Hamilton^ 7 CI. & Fin. 122, that you cannot go into an irrelevant in- 
 quiry for the purpose of causing a collateral issue to discredit a witness produced 
 on the other side. The object of the action (a Scotch one) was to try a question 
 of nuisance to a garden said to be injured by vapor emitted from a neighboring 
 manufactory. A witness called for the defendants had been examined as to 
 other gardens and premises in the neighborhood, and had said that he knew 
 Glascow Field, but never know of any damage done there. The pursuer then 
 proposed to ask him whether he had ever known of any sum having been paid 
 by the defendants to the proprietors of Glascow Field for alleged damage 
 there occasioned by the works. The House of Lords, for the reason above 
 assigned, held that the question could not be put. But although the question 
 appear to be irrelevant to the issue, it is to be allowed, if counsel undertake to 
 show by other evidence that it is relevant : Haigh v. Belcher^ 7 C. & P. (32 E. 
 C. L. li.) 389. 
 
 " Ilarris v. Tippett, 2 Camp. 638, 639 ; R. v. Waisoji, 2 Stark. C. (3 E. C. L. 
 R.) 149; Hughes v. Eogers, 8 M. & W. 123 ; Lee's case, 2 Lew. C. C. 154 ; Har- 
 rison V. Gorton, Ibid. 156. 
 
 issue, merely to test his credibility : Odiorne v. Winkeley, 2 Gall. 31 ; Lawrence 
 V. Barker, 5 Wend. 301 ; Radford v. Rice, 2 Dev. & Bat. 39 ; Jones v. McNeil, 
 2 Bailey 466 ; Atwood v. Welton, 7 Conn. 66 ; U. S. v. Dickenson, 2 McLean 
 325 ; Dozier v. Joyce, 8 Port. 303 : Ortez v. Jewett, 23 Ala. 662 ; Seavy v. Dear- 
 horn, ION. H. 351 ; Cornelius v. Commonwealth, 15 B. Monr. 539. It is in the 
 discretion of the court trying a case to §ay how far irrelevant questions may be 
 asked of a witness on a cross-examination : Clark v. Trinity Church, 5 "W. & S. 
 266 ; Gloucester v. Bridgham, 28 Me. 60 ; Poivers v. Leach, 26 Vt. 270. It is 
 competent Avithin the discretion of the Court on cross-examination to ask a wit- 
 ness whether he has ever been confined in the State prison, and to sift thoroughly 
 his character and antecedents: Wilbur v. Flood, 16 Mich. 40. A witness upon 
 cross-examination may be asked whether he has not expressed feelings of hos- 
 tility towards the opposite party : State v. Dee, 14 Minn. 35. And see as to the 
 latitude allowed on cross-examination to test credibility : Winston v. Cox, 38 
 Ala. 268.
 
 202 CROSS-EXAMINATION OF WITNESSES. 
 
 t-,^^^-, tlict it.' ^ Thus, in an information under tbe revenue *laws, 
 
 r 2021 . . 
 
 L -"a witness who had given material evidence as to the fact in 
 
 ' H. V. Watson, 2 Stark. C. (3 E. C. L. R.) 149; R. v. Teale and others, cor. 
 Lawrence, J., at York. It is said to have been held, that the question, whether 
 a witness for one party had not attempted to dissuade a witness for the adver- 
 sary from attending to give evidence at the trial, was so immaterial, that if the 
 witness answered in the negative he could not be contradicted : Harris v. Tip- 
 pett, 2 Camp. 637, cor. Lawrence, J. It cannot, however, be doubted that the 
 fact, if proved, would show a very strong and improper bias on the mind of the 
 witness, and in a doubtful case afford a fair ground for suspecting his sincerity. 
 In Lord Stafford's case, 7 Howell's St. Tr. 1400, the prisoner was allowed to 
 prove that Dugdale, a witness for the prosecution, had endeavored to suborn 
 witnesses to give false evidence against the prisoner. The late case of Thomas 
 V. David, 7 C. & P. (32 E. C. L. R.) 350, tends to overrule Harris v. Tippett. 
 There, in an action on a promissory note, the plaintiff's servant (an attesting 
 witness) being called to prove the signature, was asked on cross-examination, 
 whether she did not sleep in the same bed with the plaintiff. On its being ob- 
 jected that the point of intended contradiction was merely collateral, Coleridge, 
 J., in overruling the objection, said: "Is it not material to the issue whether 
 the principal witness who comes to support the plaintiff's case was his kept 
 mistress ? If the question had been whether the witness had walked the streets 
 as a common prostitute, I think that would have been collateral to the issue, 
 and that, if the witness had denied such a charge, she could not have been con- 
 tradicted ; but here the question is, whether the witness had contracted such a 
 relation with the plaintiff as might induce her the more readily to support a 
 forgery — just in the same way as if she had been asked, if she was the sister or 
 daughter of the plaintiff." And where the question was what consideration 
 passed on discounting a bill of exchange. Lord Tenterden held, that what a 
 witness had said upon a former trial between the parties concerning another 
 bill discounted at the same time and under the same circumstances was not col- 
 lateral : Meofjoe v. Simmons, 3 C. & P. (14 E. C. L. R.) 76. But, in an action 
 on a policy of insurance, a witness for the defendant was asked, whether he 
 had not said that "they had not a leg to stand upon." Tindal, C. J., held, that 
 contradiction was inadmissible : Elton v. Larldns, 5 C. & P. (24 E. C. L. R.) 
 590. Upon this principle, on a question as to the genuineness of handwriting, 
 though the jury may compare the document with the authentic writings of the 
 party to whom it is asci'ibed, provided such writings are in evidence for other 
 purposes : Doe dem. Perry v. Newlor, 5 Ad. & E. (31 E. C. L. R.) 514, witnesses 
 cannot be asked whether papers, not in evidence in the cause, placed on the 
 witness-box, were signed by the party with a view to test their knowledge of 
 the handwriting by their agreement or disagreement: Grijits v. Ivery, 11 Ad. & 
 E. (39 E. C. L. R.) 322. So where a witness, called to prove the handwriting of 
 an attesting witness to a bond, swore that it was not his handwriting, and 
 another paper was then shown him which lie also stated was not in that person's 
 handwriting, which latter paper was not in evidence in the cause, it was held 
 
 ^ A defendant having cross-examined a plaintiff's witness on subjects irrele- 
 vant to the issue, will not be permitted to give evidence that the witness testified
 
 CRIMINATING EVIDENCE. 202 
 
 issue was asked, on cross-examination, whether he had not said 
 that the officer of the Crown had offered him a brihe to give 
 that evidence. lie denied having said so, and evidence being 
 then tendered to prove that he had made such a statement, it was 
 rejected.'" The rule does not of course exclude the contradiction 
 of the witness as to any facts immediately connected with the sub- 
 ject of inquiry, Avhich in themselves would otherwise be legitimate 
 evidence in the cause." A witness may, however, be asked whether, 
 in consequence of his *haviiig been charged with robbing r*9Ao-| 
 •the prisoner, he has not said that he would be revenged 
 upon him : and, in case of denial, he may be contradicted." In such 
 a case the inquiry is not collateral, but most important, in order to 
 show the motives and temper of the witness in the particular trans- 
 action. But, in order to let in such a contradiction, the witness 
 should have been cross-examined as to the use of such expressions in 
 
 that the phiintiif could not, for the purpose of contradicting the witness, prove 
 that the latter paper was written by the attesting witness : Hughes v. Rogers, 8 
 M. & W. 123. See A^ol. II., Handwriting. 
 
 ™ A ftornei/- General v. Hitchcock, 1 Exch. 91. 
 
 " Per Alderson, B., in Attorney- General v. Hitchcock, 1 Exch. 91. 
 
 " Yewvi's case, 2 Camp. 638, n., cor. Lawrence, J. 
 
 falsely on the subjects: Griffith v. Eshelman, 4 "Watts 51 ; Smith v. Dreer, 3 
 Whart. 154; Stevens v. Beach, 12 Vt. 585; People v. Rector, 19 Wend. 569; 
 Mclnti/re v. Young, 6 Blackf. 496 ; Wuu-hon-chaw-neck-kaw v. U. S., 1 Morris 
 332 ; Howard v. Ciig Fire Ins. Co., 4 Denio 502 ; Herson v. Henderson, 3 Eos. 
 498 ; Morgan v. Frees, 15 Barb. 352; Ortez v. Jeioett, 23 Ala. 662. The state- 
 ments of a witness, made out of court, contrary to what he swears at the trial, 
 concerning facts relevant to the issue, may be proved to impeach his credit ; 
 but not if they be of irrelevant facts : Shields v. Cunningham, 1 Blackford 86; 
 Rosenbaum v. State, 33 Ala. 354; Blakey v. Blakeg, Ibid. 611 ; ComJ)s v. Win- 
 chester, 39 N. II. 13 ; Scale v. Chambliss, 35 Ala. 19 ; Tibbitts v. Flanders, 18 
 N. H. 284; State v. Thibeau, 30 Vt. 100; State v. Staley,, 14 Minn. 105; Gan- 
 dolfer V. Appleton, 40 N. Y. 533 ; Frank v. Manny, 2 Daly 92 ; Prescot v. Ward, 
 10 Allen 203 ; La Beau v. People, 34 N. Y. 223 ; Hildeburn v. Curran, 15 P. F. 
 Smith 59; Fogleman v. State, 32 Ind. 145 ; Harper v. Indianapolis R. R. Co., 
 47 Mo. 567 ; Clark v. Clark, 65 N. C. 655 ; Comstock v. Smith, 20 Mich. 338. 
 A witness may be asked on cross-examination whether he had not declared an 
 enmity to the defendant, and on his denial evidence of his declaration is admis- 
 sible : Bullard v. Lambert, 40 Ala. 204. Declarations out of court of witness 
 showing bias or personal ill-will to the party are admissible : Day v. Stickney, 
 14 Allen 255. Denial of interest on cross-examination may be contradicted : 
 Geary v. People, 22 Mich. 220. It is within the discretion of the court to per- 
 mit counsel on cross-examination to ask a witness, whether he has not sworn 
 falsely in a particular suit or on some occasion ; but not whether third persons 
 have accused him of swearing falsely : Hannah v. McKellip, 49 Barb. 342.
 
 203 CROSS-EXAMINATION OF WITNESSES. 
 
 order to enable him to explain them; thus, in an action for. seduction 
 of the plaintiff's daughter, she was asked whether she knew A. B., 
 and she thereupon having denied that she knew him, evidence that 
 she had told a witness that A. B. was the father of her child and had 
 seduced her, offered bj way of contradiction, was rejected. But the 
 Court observed that had she been cross-examined as to statements 
 made by her relating to him, such evidence would have been admissi- 
 ble.P Of course witnesses cannot be called to contradict a witness as 
 to a fact he says he does not recollect, or to which he will not 
 positively depose. '^ 
 
 It is now settled by the authority of the legislature, that a witness 
 r*9041 ^•'^'^'^0^ refuse to answer questions' because *he may subject 
 himself to a civil liability or charge ; but he is not bound to 
 answer any question, either in a court of law or of equity, if his 
 answer will expose him to any criminal punishment or penal liability, 
 or even tends collaterally to convict him, agreeably to the wise and 
 humane principle that no man is bound to criminate himself."^ 
 
 P Carpenter v. Wall, 11 Ad. & E. (39 E. C. L. R.) 303. 
 
 1 Long V. Hitchcock, 9 p. & P. (38 E. C. L. R.) 619. 
 
 "■ Before the passing of the 46 Geo. III. c. 38, it was vexata quoestio, whether a 
 witness was bound to answer when the answer might subject him to civil liabili- 
 ties. On the question being proposed by the House of Lords to the Judges, 
 Mansfield, C. J., of C. P., Grose and Rooke, Js., and Thompson, B., were of 
 opinion that he was not ; but the Lord Chancellor and the other Judges were of 
 a contrary opinion. They were all of opinion that a promise to a witness that 
 he should be excused from certain debts, provided he made a full and fair dis- 
 closure, did not render him incompetent on the score of interest: Cobbett's P. 
 D. vol. 6, p. 167. But this statute declares and enacts, that a witness cannot by 
 law refuse to answer a question relevant to the matter in issue, the answering of 
 which has no tendency to expose him to a penalty or forfeiture of any nature 
 whatsoever, by reason only, or on the sole ground that the answering of such 
 question may establish, or tend to establish, that he owes a debt, or is otherwise 
 subject to a civil suit, either at the instance of his Majesty or of any other pei'- 
 son or persons. 
 
 Although this statute in its terms applies to oral evidence only, yet it has been 
 held that a witness is not excused from producing papers merely because they 
 may subject him to an action, or be prejudicial to his pecuniary interest : Doe v. 
 Date, 3 Q. B. (43 E. C. L. R.) 609 ; Doe v. Earl of Egremont, 2 M. & Rob. 386 ; 
 otherwise, of course, if they are his muniments of title : Ibid. 
 
 A rated parishioner in a settlement case is a party to the appeal, and there- 
 fore does not come within the words or meaning of the Act: R. v. Wohurn, 10 
 East 395 ; see 54 Geo. III., c. 170. 
 
 ' //. V. Jiftrljer, Stra. 444 ; Cates v. Hardacre, 3 Taunt. 424 ; Sir J. Freend's 
 cane, 13 How. St. Tr. 1 ; ]A)rd MacclesJiehV s case, 16 How. St. Tr. 707 ; 16 Ves. 
 
 ' As to the privilege of a witness to refuse an answer which may criminate or
 
 CRIMINATING QUESTIONS. 205 
 
 *Accordingly, a witness is not compellable to say whether i-^qact 
 he published a particular paper, if the contents be libellous ;' 
 
 jun. 242 ; Title v. Grevet, 2 Ld. Raym. 1008 ; R. v. Oates, 10 IIow. St. Tr. 107'J:; 
 
 2 Haw. c. 46 ; Mitford's Ch. PI. 157 ; R. v. Lord George Gordon, 2 Doug. 593 ; 
 Hard,/s case, 24 IIow. St. Tr. 755 ; R. v. Slaney, 5 C. &. P. (24 E. C. L. R.) 213 ; 
 R. V. Pegler, Ibid. 521 ; Maloney v. Bartley, 3 Camp. 210; Danhridge v. Corden 
 
 3 C. & P. (14 E. 0. L. R.) 11 ; i?. V. De Bereiiger and others, reported by Gurney, 
 105; Cutes V. Hardacre, 3 Taunt. 424; 16 Ves. 242. In some instances it has 
 been found necessary to protect witnesses from penalties to which their evidence 
 has rendered them liable by an Act of Parliament ; see 45 Geo. III., c. 126 ; 1 & 
 2 Geo. IV., c. 21 ; Macullum v. Turton, 2 Y. & J. 183. In strictness, however, 
 it is no ground of legal objection by the parties in the cause, that the answer to 
 a proposed question may place the witness in jeopardy ; it is peculiarly the ob- 
 jection of the witness himself, who is under the protection of the law, and is 
 always apprised of his situation by the presiding Judge : Parkhurst v. Loioten, 
 2 Swanst. 216. The same rule applies if the husband or wife would be exposed 
 in like manner : Cartwright v. Green, 8 Ves. 405 ; and whether the punishment 
 would be imposed by a temporal or ecclesiastical Court: Brownsword v. Ed- 
 wards, 2 Ves. 245 ; Chetwynd v. Llndon, Ibid. 450 ; Finch v. Finch, Ibid. 493. 
 Where a witness declined on cross-examination to state where he lived, as he 
 believed that a bailable writ was out against him at the suit of the defendant, 
 the court would not compel him to answer: Watson v. Bevern, I C. & P. (12 E. 
 C. L. R.) 363. 
 
 ' R. v. Barber, Stra. 444 ; Maloney v. Bartley, 3 Camp. 210, where, in an action 
 
 disgrace him, see People v. Herrick, 13 Johns. 82; Grannis v. Brandon, 5 Day 
 260: State y. Bailey, 1 Penna. 415 ; Vaughny. Paine, 2 Ibid. 728 ; U. S. v. Craig, 
 
 4 Wash. C. C. 729 ; Sodusky v. McGee, 5 J. J. Marsh. 621 ; Southard v. Rexford, 
 6 Cow. 254 ; Fries v. Brugler, 7 Halst. 79 ; People v. Mather, 4 Wend. 229 ; U. S. 
 V. Dickenson. 2 McLean 325 ; Poole v. Perritt, 1 Speers 128 ; Chdmberlin v. 
 Wilson, 12 Vt 491 ; People v. Rector, 19 Wend. 569 ; Robinson v. Neal, 5 Monr. 
 212 ; Lister v. Boker, 6 Blackf 439 ; Henry v. Salina Bank, 1 Comst. 83 ; Jan- 
 m-in V. Sca-mmon, 9 Fost. 280. But when his objection to answer is, that he may 
 thereby be subjected to a penalty, and it appears to the court that the statute 
 of limitation has bai-red the penal action or proceeding, he cannot insist on his 
 privilege : Close v. Olney, 1 Denio 319 ; Bank v. Henry, 2 Ibid. 155 ; s. c, 3 Denio 
 593 ; Weldon v. Burch, 12 111. 374. If a witness is called to support a criminal 
 prosecution and objects to give his testimony, because it will criminate himself, but 
 is, nevertheless, erroneously compelled to testify, and the defendant is convicted, 
 it seems that the error does not affect the rights of the witness alone, but that 
 the defendant may object that the conviction was founded upon illegal evidence : 
 Comm. V. Kimball, 24 Pick. 366. The witness, with the instruction of the court 
 when necessary, must decide whether his answer will tend to criminate him ; 
 and his decision is upon oath at the peril of perjury ; People v. Rector, 19 Wend. 
 569 ; Poole v. Perritt, 1 Speers 128. Although a witness is his own judge as to 
 whether his answer would criminate himself, he is nevertheless liable to an 
 action by the party for a refusal to testify, if his refusal be wilful and his excuse 
 false :. Warner v. Lucas, 10 Ohio 336. A witness is bound to answer, thouch
 
 205 CROSS-EXAMINATION OF WITNESSES. 
 
 and upon an appeal against an order of bastardy, he is not bound to 
 declare whether he is the father of a bastard child." In an action 
 against the acceptor of a bill of exchange, a witness is not bound to 
 answer whether the bill was not given for differences on stock-jobbing 
 transactions for time." The prosecutrix on an indictment for a rape 
 is not bound to answer whether she has had criminal intercourse with 
 any other person/ An accomplice, admitted to give evidence for 
 the Crown, is not bound to disclose his share in other offences which 
 are not the subject of inquiry, and for which he would be liable to 
 prosecution.^ A witness is also protected from answering any ques- 
 r*'^on ^^*^" which would subject him to any penalty, or to forfeiture 
 of his estate/ In */SYr J. Friend's case,^ it was ruled, that 
 
 for a libel published in an affidavit sworn before a magistrate, it was held that 
 the magistrate's clerk was not bound to state whether he wrote the affidavit and 
 delivered it to the magistrate : a bill of exceptions was tendered, but not pro- 
 ceeded in. In an action for libel on the plaintiff as hundred constable, pur- 
 porting to be a memorial from the vestry of jP., the vestry-clerk being called to 
 produce the vestry-books, it was held that he could not refuse on the ground 
 that he might thereby criminate himself, the books being directed to be kept 
 by 58 Geo. III., c. 69. s. 2; Bradshaw v. Murphy, 7 C. & P. (32 E. C. L. R.) 
 612. 
 
 " R. V. St. Mary^s, Nottingham, 13 East 57, n. 
 
 ^ Thomas v. Tucker, cor. Lord Tenterden, C. J., Sitt. aft. Easter, 1827. 
 
 y R. V. Hodgson, 1 Russ. & Ry. C. C. 211 : and see Dodd v. Norris, 3 Camp. 
 519. The answer here, however, might have subjected the witness to spiritual 
 censure and punishment. 
 
 ^ Wesfs case, 0. B. Sess. after Easter T. 1823. 
 
 " The declaratory statute, 46 Geo. III., c. '<->!, imports that a witness is not 
 bound to answer any question the answering of which tends to expose him to a 
 penalty or forfeiture of any nature whatever. So in equity a party is not bound 
 to answer so as to subject himself to any punishment, pains, penalties, or for- 
 feiture of interest; see Mitford's Ch. PI. 157. But the full effect of the privi- 
 lege is not allowed in bankruptcy : Ex parte Cozzens re Worrall, Buck 531. 
 
 '' 13 IIow. St. Tr. 1. But the statutes inflicting these penalties are now re- 
 pealed. 
 
 he may be thereby subjected to a pecuniary liability : Bully, Loveland, lU Pick. 
 9 ; Hays v. Richardson, 1 Gill & Johns. 366 ; Comm. v. Thurston, 7 J. J. 
 Marsh. 62 ; Naylor v. Semmes, 4 Gill & Johns. 273 ; Co])ji v. Upham, 3 N. H. 
 159 ; JJevoll v. Brownell, 5 Pick. 448 ; Baird v. Cochran, 4 S. & R. 397 ; Alex- 
 ander v. Knox, 7 Ala. 503 ; Judge of Probate v. Green, 1 IIow. (Miss.) 146 ; Zol- 
 lirkojD'cr v. Turner, iS Ycrg. 297; Lowney v. Perhatn, 2 App. 235; Conover v. 
 Bell, 6 Monr. 157 ; Stevens v. Whitcomb, 16 Vt. 121. AVhen a witness is sworn 
 to tell the whole truth, it means to tell so much of the truth as may be compe- 
 tent evidence. He also takes the oath subject to tlie qualification that he may 
 dfoliiie to answer questions which will criminate himself: Comm. v. Reid, 1 
 Camp. 182. See ante, p. 41, note.
 
 DEGRADING QUESTIONS. 20G 
 
 the witness could not be asked whether he was a Roman Catholic, 
 since he might thereby subject himself to penalties. And it has even 
 been held, that a witness is protected from admitting his commission 
 of an offence, although he has received a pardon ;° for the answer 
 may place him in jeopardy, and he would have to set up the pardon 
 in bar to the prosecution. But where a witness has been guilty of 
 an infamous crime, and has been punished for it, he may, it is said, 
 be asked whether he has not undergone the punishment, because his 
 answer cannot subject him to further punishment.** And where the 
 questions might subject the witness to penalties, but the time for 
 proceeding against him is passed, he is bound to answer.® If the wit- 
 ness voluntarily answer questions improperly put, his answers may 
 afterwards be used as evidence against him.^ Where a witness, after 
 having been cautioned that he is not compelled to answer a question 
 on the ground that his answers might subject him to an indictment, 
 answers at all, it has been held that he is bound to disclose the whole 
 of the transaction.^* If, however, the witness claims the protection 
 of the court and there appears reasonable ground to believe that his 
 answer would criminate him, but notwithstanding he is obliged to 
 answer, what he says must be considered as obtained by a species of 
 duress, and cannot be used in evidence against him.'' And it makes 
 no difference as to the right of the witness to protection, that r:^,c)(\'7-] 
 he *had before answered in part. He may claim his privi- 
 lege at any stage of the inquiry.' 
 
 The protection has been carried much further. It has been held 
 
 "= E. V. Readmg, 7 How. St. Tr. 259 ; E. v. Earl of Shaftesbury, 6 How. St. 
 Tr. 1171 ; s. c. Moo. Jb M. (22 E. C. L. R.) 193, note: but see two next notes. 
 
 ^ E. V. Edwards, 4 T. R. 440 ; but see note (k), post, p. 207. 
 
 ' Roberts v. Allatt, Moo. & M. (22 E. C. L. R.) 192. 
 
 ' Stockfleth V. De Tastet, 4 Camp. 10; Smith v. Beadnell, 1 Camp. 30; E. v. 
 Merceron, 2 Stark. C. (3 E. C. L. R.) 366. 
 
 s J)ixoH V. Vale, 1 C. & P. (12 E. C. L. R.) 278 ; East v. Chapman, 2 C. & P. 
 (12 E. C. L. R.) 570. So in the case of a witness interrogated in equity: 
 Austin V. Prince, 1 Sim. 348. 
 
 " Eeg. V. Garbett, 2 C. & K. (61 E. C. L. R.) 474. 
 
 ' Ibid. 
 
 ^ If he voluntarily state a fact, he is bound to state how he knows it, although 
 
 in so doing he may expose himself to a criminal charge: State v. K , 4 N. 
 
 H. 562. If the witness understandingly waive his privilege, and begin to testify, 
 he must submit to a full cross-examination, if required : Chamberlin v. Willson, 
 12 Vt. 491 ; Amherst v. Hollis, 9 N. 11. 107 : Feople v. Lohman, 2 Barb. S. C. 
 Rep. 216 ; State v. Foster, 3 Fost. 348 ; Coburn v. Odell, 10 Fost. 540; Foster v. 
 Pierce, 11 Cush. 437. 
 13
 
 207 CROSS-EXAMINATION OF WITNESSES. 
 
 that a witness is not bound to answer any question Avhich tends to 
 render him infamous, or even to disgrace him, and that such evidence 
 was inadmissible. In Cook's case,^ Treby, C. J., said, " If it be an 
 infamous thing, that is enough to preserve a man from being bound to 
 answer;'' and he therefore held that persons convicted and par- 
 doned, or convicted and punished for crimes, could not be obliged to 
 answer, since it was matter of reproach, and that it should not be put 
 upon a man to answer a question wherein he would be forced to 
 forswear or disgrace himself.^ It is however to be observed that the 
 case of Tlie King v. Edwards^ is inconsistent with the above dictum ; 
 since it was there held that a person proposed as bail was bound to 
 answer the question whether he had stood in the pillory for perjury. 
 
 The question whether a witness must answer questions which tend 
 to disgrace him, "^ is, like many other difficult questions on the sub- 
 ject of evidence, one of policy and convenience. On the one hand, 
 it is highly desirable that the jury should thoroughly understand the 
 character of the persons on whose credit they are to decide upon the 
 property and lives of others ; and neither life nor property ought to 
 be placed in competition Avith a doubtful and contingent injury to 
 the feelings of individual witnesses. On the other hand, it may be 
 
 -J said that it is hard that a '^witness should be obliged upon 
 
 oath to accuse himself of a crime, or even to disgrace him- 
 self in the eyes of the public ; that it is a harsh alternative to compel 
 a man to destroy his own character, or to commit perjury ; that it is 
 impolitic to expose a witness to so great a temptation ; and that it 
 must operate as a great discouragement to witnesses, to oblige them 
 to give an account of the most secret transactions of their lives be- 
 fore a public tribunal. That a collateral fact tending merely to dis- 
 grace the witness, is not one which is properly relevant to the issue, 
 since it could not be proved by any other witness ; and that there 
 would be, perhaps, some inconsistency in protecting a witness against 
 any question, the answer to which would subject him to a pecuniary 
 penalty, and yet leave his character exposed. 
 
 " W, How. St. Tr. 311 ; 1 Salk. 153. 
 
 ' The question in that case was, whether a juryman who had been chal- 
 lenged couhi be asked whether he had not before the trial asserted the guilt of 
 the prisoner. 
 
 "■ 4 T. K. 440. Sec Rex v. Lewis and o/hers, 4 Esp. C. 225, where it is said to 
 have been ruled, that a witness could not be asked whether he had been in the 
 House of Correction ; and Macliride v. MacJiride, 4 Esp. 242, where it was 
 held that a witness could not be asked questions which tended directly to dis- 
 grace liiin. 
 
 ° See tit. Rai'E — Seduction.
 
 QUESTIONS TENDING TO DISGRACE. 208 
 
 In the first place, it is quite settled that a man is not bound to 
 criminate himself, or to answer any question by which he may incur 
 a penalty." It may be observed further, that the principle extends 
 not only to questions where the answer would immediately criminate 
 the witness, but to all questions which tend collaterally to his convic- 
 tion, or to supply any link in proof of a charge against him." As to 
 questions which tend merely to disgrace the witness, there is some 
 difficulty. 
 
 In Cook's case,^ the prisoner, on an indictment for high treason, 
 asked the jurors, in order to challenge them, whether they bad not 
 said that he was guilty, and would be hanged ? and the question was 
 overruled; and the court said. You shall not ask a witness or jury- 
 man whether he hath been whipped for larceny, or convicted of 
 felony ; or whether he was ever committed to Bridewell for a pil- 
 ferer, or to Newgate for clipping and coining ; or whether he is a 
 villain or outlawed ; because that would make a man discover that of 
 himself which tends to shame, *crime, infamy, or misde- r^onn-i 
 meaner. In this case it is to be recollected that the object 
 was to exclude the juryman entirely by raising an objection to his 
 competency. The same observation applies also to Layer s case,'^ 
 where the court overruled the attempt of the prisoner to ask a wit- 
 ness on the voire dire, whether he had been promised a pardon, or 
 some reward for swearing against the prisoner ; and in that case L. 
 C. J. Pratt said, If the objection goes to his credit, must he not be 
 sworn, and his credit left to the jury ? No person is to discredit 
 himself, but is always taken to be innocent till it appear otherwise. 
 The question, whether a witness was bound to answer a question upon 
 a collateral fact tending to disgrace him, did not arise in any of the 
 foregoing cases," and therefore the dicta thrown out by the court were 
 
 ° See, as to these two propositions, a^ite, p. 204, note (5), whei-e the authorities 
 are collected. 
 
 P 1 Salk. 153; 13 How. St. Tr. 311 ; and see the observations of Treby, J., 
 above. 
 
 ■J 16 How. St. Tr. 101. The Chief J. (Pratt) did not deny that the question 
 might be put after the witness had been sworn. The cases of a witness and 
 juror differ very materially. AVith respect to jurors, no question is properly al- 
 lowable, except for the purpose of showing total incompetency. 
 
 ■■ There are many instances in which a man may be a witness who cannot be 
 a juror: 2 Hale 278, 11 H. 4. One attainted and pardoned cannot be a juror: 
 per Holt, C. J., Rookwood's case, 4 St. Tr. G42 ; but he may be a witness. The 
 reason is, that a juror cannot be examined and sifted as to the grounds of his
 
 209 CROSS-EXAMINATION OF WITNESSES. 
 
 in some measure, extra-judicial, as far as regards the present question. 
 In the case of R. v. Leivis,^ which was an indictment for an assault, 
 a witness, who is stated in the report of the case to have been a com- 
 mon informer, and a man of suspicious character, was asked, upon 
 cross-examination, if he had been in tlie house of correction in Sus- 
 sex ? And Lord Ellenborough is stated to have interposed, and to 
 have said, that the question should not be asked, since it had formerly 
 been settled by the judges, among whom were C. J. Treby and Mr. J. 
 Powell, both very great lawyers, that a witness was not bound to an- 
 swer any question the object of which *was to degrade or 
 L '^ J render him infamous. It is to be observed, however, that his 
 Lordship did not afterwards strictly adhere to this rule.' In the case 
 of Machride v. Machride,'^ a witness for the plaintiff, in an action for 
 assumpsit, was questioned as to her cohabiting with the plaintiff; Lord 
 Alvanley interposed, and excluded the question ; but his Lordship 
 added, " I do not go so far as others may ; I will not say that a wit- 
 ness shall not be asked to what may tend to disparage him ; that would 
 prevent an investigation into the character of the witness, which it 
 may be of importance to ascertain. I think those questions only 
 should not be asked which have a direct and immediate effect to dis- 
 parage." Upon the trial of 0' Coigly and O'Connor,'' the witness 
 having, upon a question being put which threw an imputation on him, 
 appealed to the court for protection in the first instance, the court 
 would not permit the question to be repeated. In the case of Harris 
 v. Tippett,'" the witness was asked in cross-examination, whether he 
 had not attempted to dissuade a witness for the plaintiff from attend- 
 ing the trial ; he swore that he had not ; and on its being proposed to 
 bring evidence to contradict the witness on this point, Mr. J. Law- 
 rence would not allow it, the fact being collateral to the issue ; but he 
 added, " I will permit questions to be put to a witness as to any im- 
 proper conduct of which he may have been guilty, for the purpose 
 
 verdict, as a witness may as to his testimony. The ancient rule of law was 
 otherwise. 
 
 • 4 Esp. C. 225. . 
 
 * At the sittings of Westminster after Ilil. Term, 1818, a witness was compelled 
 by his Lordship to answer the question whetlier he had not been confined in a 
 particular j^aol ; infra, p. 212, note (z). 
 
 " 4 Ksp. C. 242; but see supra, p. 201. 
 " 24 How. St. Tr. 1353. 
 
 " 2 Camp. C37, cited in It. v. Walsuii, 2 Stark. C. (3 E. C. L. R.) 110; but see 
 SHprtij p. 201.
 
 QUESTIONS TENDING TO DISGRACE. 210 
 
 of trying his credit ; but when those questions are irrelevant to the 
 issue upon *record, you cannot call other witnesses to con- ^ ^ 
 
 , . . , r*2iii 
 
 tradict the answers he gives." And in Yewins case^^ the •- -■ 
 same learned judge allowed the prisoner's counsel to ask a witness 
 in cross-examination, whether he had not been charged with robbing 
 his master. Where a man's liberty, or even life, depends upon the 
 testimony of another, it is of infinite importance that those who are 
 to decide upon that testimony should know, to the greatest extent, 
 how far the witness is to be trusted ; they cannot look into his breast 
 and see what" passes there, but must form their opinion on collateral 
 indications of his good faith and sincerity. Whatever, therefore, 
 may materially assist them in their inquiry, is most essential to the 
 investigation of truth ; and it cannot but be material for the jury to 
 understand the character of the witness whom they are called to be- 
 lieve ; and to know whether, although he has not been actually con- 
 victed of any crime, he has not in some measure rendered himself 
 less credible by his disgraceful conduct. In the case of The King v. 
 Edwards/ on an application to bail the prisoner, who was charged 
 with felony, one of the bail was asked, whether he had not stood in 
 the pillory for perjury ? and upon objection being made that it tended 
 to criminate the party, the court held that there was no impropriety 
 in the question, since his answer could not subject him to any punish- 
 ment. 
 
 The great question, therefore, whether a witness is hound to an- 
 swer a question to his own disgrace, has not yet undergone any di- 
 rect and solemn decision, and appears to be still open for considera- 
 tion. The truth or falsehood of testimony frequently cannot be 
 ascertained by mere analysis of the evidence itself; the investigation 
 requires collateral and extrinsic aids, the principal of which con- 
 sists in a knowledge of the source or depository from which such 
 testimony is derived : the whole question resolves itself into one of 
 policy and convenience, that is, whether it *would be a r:|.9-|9-| 
 greater evil that an important test of truth should be 
 sacrificed, or that by subjecting witnesses to the operation of this 
 test, their feelings should be wounded, and their attendance for the 
 purposes of justice discouraged ? The latter point seems to deserve 
 the more serious consideration, since the mere offence to the private 
 feelings of a witness who has misconducted himself cannot well be 
 put in competition with the mischief Avhich might otherwise result to 
 the liberties and lives of others. No great injustice is done to any 
 ^ 2 Camp. 638, n. y 4 T. R. 440.
 
 212 CROSS-EXAMINATION OF WITNESSES. 
 
 individual upon •whose oath the property or personal security of 
 others is to depend, in exhibiting him to the jury such as he is. As 
 to the other consideration, it does not seem to be very clear that by 
 permitting such examinations any serious evil would result ; the law 
 possesses ample means for compelling the attendance of witnesses, 
 however unwilling they may be. The evil on this side of the ques- 
 tion is at all events doubtful and contingent ; on the other side it is 
 plain and certain. 
 
 The principle on which such evidence is admissible is clear and 
 obvious ; the reason for excluding it is extrinsic and artificial, and, 
 it may be added, but theoretical ; for courts are in the constant habit 
 of permitting such questions to be put,* and answers to be given and 
 received as evidence for the consideration of the jury, 
 r^oio"! *The decision of this question is of less practical import- 
 ance than might have been expected, since, whether a witness 
 be or be not bound to answer such questions as tend to his disgrace, 
 it seems to be allowed that the questions may be put;* and it is ob- 
 viously of little consequence whether the witness admits that which 
 is insinuated against him, or refuses to answer the question ; for 
 though in strictness no inference ought to be made as to the truth of 
 
 ^ In the case of Frost v. Hallotvay^ K. B. sitt. after Ilil. Term. 1818, Lord 
 Ellenborough, C. J., compelled a witness to answer whether he had not been 
 confined for theft in gaol ; and, on the witness's appealing to the Court, said, 
 "If you do not answer I will send you there;" Ex relatione Gurnet/. In the 
 case of Cundell v, Pratt, Moo. & M. (22 E. C. L. 11.) 108 ; the witness was asked, 
 on cross-examination, whether she was not cohabiting in a state of incest with 
 a particular individual ; Best, C. J., interfered to prohibit the question ; it was 
 urged by Spankie, Serjt., that he had a right to put questions tending to degrade 
 a witness, for the purpose of trying his character ; but Best, C. J., said : " I do 
 not forbid the question on that ground ; I for one will never go that length. 
 Until I am told by the House of Lords I am wrong, the rule I shall always act 
 upon is, to protect w'tnesses from questions, the answers to which may expose 
 them to punishment. If they are protected beyond this, from questions that 
 tend to degrade them, many an innocent man would unjustly suffer. This 
 question- may subject her to punishment ; I think, therefore, it ought not to be 
 put." In point of practice, sucli questions are every day put and answers ex- 
 acted. And now, when infiimy forms no objection to a witness's competency, 
 and therefore a party would not be allowed to adduce evidence upon the point 
 {Harris v. Tippett, 2 Camp. 637), it seems to be essential to the ends of justice 
 that the witness should be compelled to answer such questions. 
 
 ■ Harris v. Ti]>/>f'ft, 2 Camp. 638; Lord Cockrane's trial, by Gurney, p. 419; 
 Jlardji's case, 24 lloweirs St. Tr. 72() ; R. v. Yewin, 2 Camp. 638, n.; E. v. 
 Wahon, 2 Stark. C. (3 E. C. L. R.) 1 16.
 
 EFFECT OF ANSWERS. 213 
 
 the fact where the Avitncss has refused to answer,'' yet the refusal 
 must make an unfavorable impression upon the jury, since an honest 
 man would naturally be eager to deny the fact and rescue his char- 
 acter from suspicion, and would not refuse to answer merely because 
 he had a strict legal right to refuse.* 
 
 Where the question is so connected with the point in issue that 
 the witness may be contradicted by other evidence if he deny the 
 fact, the law itself requires that the question should be put to the 
 witness, in order to afford him an opportunity for explanation, 
 although the answer may involve him in consequences highly penal. "^ 
 It was held by all the judges, not only that a question, as 
 *to an act done by the witness, the answer to which might r*9i4^-i 
 criminate him, might be put, in order to afford a foundation 
 for contradicting him if he denied the fact, but even that the adverse 
 party could not, without asking the question, adduce such evidence to 
 impeach the credit of the witness.' 
 
 The privilege of refusing to answer is that of the witness, and not 
 of the party ; and Lord Tenterden refused to allow the question to 
 be argued by the counsel of the party who called the witness/ 
 
 It was formerly thought that if a witness voluntarily answered 
 questions tending to criminate him on his examination in chief, he 
 was bound to answer, on cross-examination, however penal the conse- 
 quence might be, and if he answered the question in part, he was 
 bound to disclose the whole truth ;^ but on consideration by the whole 
 of the judges, it has been held by a majority that a witness after 
 having answered some questions may stop at any moment and claim 
 
 ^ Rose V. Blalceman, Ry. & M. (21 E. C. L. R.) 383 ; see Lord Ellenborough's 
 remarks in Mihnan v. Tucl-er, 2 Peake N. P. C. 222. 
 
 " See the observations of the Judges in B. v. Watson, 2 Stark. C. (3 E. C. L. 
 R.) 116. 
 
 ■* The Queen's case, 2 B. & B. (6 E. C. L. R.) 311. 
 
 ® Ibid. Thus in an action against A. for seducing plaintiflTs daughter, which 
 fact the daughter proved, it was held the defendant could not give evidence that 
 she had talked of B. as her seducer and the father of her child, unless she had 
 been first asked in cross-examination whether she had ever said so : Carpenter ■ 
 V. Wall, 11 Ad. & E. (39 E. C. L. R.) 803. 
 
 'By Lord Tenterden, in Thomas v. Newton, Moo. & M. (22 E. C. L. R.) 48, 
 n. ; R. V. Adeij, 1 M. & Rob. 94 ; and it seems doubtful whether the court can 
 review the decision of a judge, when he has compelled the witness to answer 
 or produce the document: see Marston v. Downes, 1 Ad. & E. (28 E. C. L. R.) 
 34 ; Doe V. Date, 3 Q. B. (43 E. C. L. R.) 609. 
 
 « Per Dampier, J., Winchester Sum. Ass. 1815, Mann. Index, Witness, 222; 
 East V. Chapman, Moo. & M. (22 E. C. L. R.) 47.
 
 214 CROSS-EXAMINATION OF WITNESSES. 
 
 his privilege, and that if the judge nevertheless force him to proceed, 
 what he says cannot be made use of against him in a criminal pro- 
 ceeding.'' If, however, the witness voluntarily choose to answer a 
 question to which he might have demurred, his answer may after- 
 wards be used in evidence against him for all purposes.* 
 r*.9-| r.-\ *I^ a witness give an answer to a question put for the pur- 
 pose of degrading his character, the party will be bound by 
 his answer, and cannot adduce evidence in contradiction.^ This is 
 but a particular application of the general rule applicable in all cases 
 of inquiry as to mere collateral facts. 
 
 If by an unfortunate or unskilful question put on cross-examina- 
 tion a fact be extracted which would not have been evidence upon an 
 examination in chief, it then becomes evidence against the party so 
 r*oin cross-examining.'^ *But a witness is not allowed volunta- 
 rily to obtrude inadmissible evidence, and if he do, it is not 
 
 ^ Reg V. Garbef, 2 Car. & K. (61 E. C. L. R.) 474. 
 
 • Smith V. Beadnell^ ] Camp. 30; Stochfleth v. De Tastet, 4 Camp. 10. 
 
 J Lord Ellenborough, in Watsoii's case, Gurney's Rep., vol. ii., 288, observed, 
 " Whether he has been guilty of such a crime is improperly asking him in a 
 degree, because you are calling upon him, upon the sanction 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 a 
 crime, he gives an answer, it has been held by many of our judges, and I never 
 knew it ruled to the contrary, that having put such question he must be bound 
 by the answer. The court is not a court to try a collateral 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 adduced 
 to charge him ? There is no possibility of a fair and competent trial on that 
 subject, and therefore in no instance is it done." 
 
 " Wrvjht dem. Chjmer v. LUtter, Burr. 1244 ; 1 Bla. 346. The lessor of the 
 plaintiff' claimed under a will dated 1743. The defendant relied on a will bear- 
 ing date 1745. The plaintiff", in answer, called Mary T7c/o;', the sister of William 
 Mediicoti, deceased, whose name appeared as an attesting witness to the will of 
 1745, to prove that her brother, in his last illness, and three weeks before his 
 death, pulled out of his bosom the will of 1743, and said it was the true will of 
 /. C Upon cross-examination by the counsel for the defendants, the witness 
 further stated that her brother, when he produced the will of 1743, acknow- 
 ledged and declared that the will of 1745 was forged by himself. After a verdict 
 for the plaintiff, upon a motion for a new trial, upon the ground, inter alia, that 
 the declaration by Mcdlicott of his having forged the will of 1745 ought not to 
 have been left to the jury, it was answered by the court that the fact came 
 out upon the defendant's own cross-examination, and he made no objection to it 
 at the trial. See the observations on tiiis case in Sfobart v. Bryden, 1 M. & W. 
 624, 625. it would thence appear that tlic statement in the text is by no means 
 clear.
 
 AS TO WRITINGS, TO ESTABLISH DOCUMENTS. 216 
 
 to be considered as evidence in the cause. ^ This is a just and most 
 important rule ; a fraudulent and subtle witness will sometimes en- 
 deavor to baffle bis cross-examiner, and deter him from pursuing his 
 course by introducing into his answers matters foreign to the ques- 
 tion, but unfavorable to the cross-examining party. 
 
 Where a witness is cross-examined as to writing, the examination 
 is conducted with a view either to establish in evidence the contents 
 of a written document as material to the cause, or to test the mem- 
 ory or the credit of the witness. In the former view, the subject of 
 cross-examination has been the object of much consideration by the 
 judges. 
 
 In the course of the proceedings in the House of Lords in The 
 Queen s case, Louisa Dumont, a witness in. support of the charge, 
 having been asked, upon cross-examination, whether she did not use 
 certain expressions which the counsel read from a supposed letter 
 from the witness to her sister, it was objected by the Attorney-Gen- 
 eral that the letter itself ought to be put in before any use could be 
 made of its contents. 
 
 The following questions were in consequence proposed to the 
 judges :" 
 
 First. Whether in the courts below a party, on cross-examination, 
 would be allowed to represent in the statement of a question the con- 
 tents of a letter, and to ask the witness whether the witness wrote a 
 letter, to any person with such contents, or contents to the like eflFect, 
 without having first shown to the witness the letter, and having asked 
 that witness whether the witness wrote the letter, and his admitting 
 that he wrote such a letter ? 
 
 ^Secondly. Whether, when a letter is produced in the r*9-i7i 
 courts below, the court would allow a witness to be asked, 
 upon showing the witness only a part of or one or more lines of such 
 letter, and not the whole of it, whether he wrote such part, or such 
 one or more lines ; and in case the witness shall not admit that he 
 did or did not write the same, the witness can be examined to the 
 contents of such letter? 
 
 The first question was answered in the negative, for the following 
 reasons : — " The contents of every written paper are, according to 
 the ordinary and well-established rules of evidence, to be proved by 
 
 1 BlewettY. Tregonning, 3 Ad. & E. (30 E. C. L. R.) 554. Consequently, if any 
 dispute arise as to such inadmissible evidence, the witness will not be recalled 
 to settle it: CaWiii v. Barker, 5 C. B. (57 E. C. L. R.) 201. 
 
 "" The Queen's case, 2 B. & B. (6 E. C. L. 11.) 286.
 
 217 CROSS-EXAMINATION OF WITNESSES. 
 
 the paper itself and by that alone, if the paper be in existence. 
 The proper course, therefore, is to ask the witness whether or no that 
 letter is of the handwriting of the witness ? If the witness admits 
 that it is of his or her handwriting, the cross-examining counsel may, 
 at his proper season, read that letter as evidence, and when the let- 
 ter is produced then the whole of the letter is made evidence. One 
 of the reasons for the rule requiring the production of written in- 
 struments is, in order that the court may be possessed of the 
 whole. If the course which is 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 ; and thus the court may never 
 be in possession of the whole, though it may happen that the whole, 
 if produced, may have an eifect very diiTerent from that which might 
 be produced by a statement of a part." 
 
 To the second question the judges returned the following answer ; 
 — " In answer to the first part, ' Whether, when a letter is produced 
 in the courts below, the court would allow a witness to be asked, upon 
 showing the witness only a part or one or more lines of such letter, 
 and not the whole of it, whether he wrote such part?' the judges are 
 of opinion that that question should be answered by them in the 
 affirmative in that form ; but in answer to the latter part, which is 
 r*9l 81 ^^'^^' ' ^'^^ ^'^ ^^^^ *^® ^witness shall not admit that he did or 
 did not write such part, whether he can be examined as to 
 the contents of such letter V the learned judges answer in the nega- 
 tive, for reasons already given, namely, that the paper itself is to be 
 produced in order that the whole may be seen, and the one part ex- 
 plained by the other." 
 
 Upon the further question proposed, " Whether, when a witness is 
 cross-examined, and, upon the production of a letter to the witness 
 under cross-examination, the witness admits that he wrote that letter, 
 the witness can be examined in the courts below, whether he did or 
 did not make statements such as the counsel shall, by questions ad- 
 dressed to the witness, inquire are or are not made therein ; or 
 whether the letter itself must be read as the evidence to manifest 
 that such statements are not contained in the letter?" The judges 
 were of opinion, that the counsel cannot, by questions addressed to 
 the witness, inquire whether or no such statements are contained in 
 the letter, but that the letter itself must be read to manifest whether 
 sucl) statements are or are not contained in that letter. They found 
 their opinion upon what, in their opinion, is a rule of evidence as old 
 as any part of the common law of England, namely, that the con-
 
 AS TO WRITINGS, TO ESTABLISH DOCUMENTS. 218 
 
 tents of a written instrument, if it be in existence, are to be proved 
 by that instrument itself and not by any parol evidence. 
 
 To another question, viz : " In what stage of the proceedings, ac- 
 cording to the practice of the courts below, such letter could be re- 
 quired by counsel to be read, or be permitted by the court below to 
 be read," the learned judges answered, that according to the ordi- 
 nary rule of proceedings in the courts below, the letter is to be read 
 as the evidence of the cit)ss-examining counsel, as part of his evidence 
 in his turn, after he shall have opened his case: that that is the 
 ordinary course ; but that, if the counsel who is cross-examining, sug- 
 gests to the court that he Avishes to have the letter read immediately 
 in order that *he may after the contents of that letter shall r^oiQi 
 have been made known to the court, found certain questions 
 upon the contents of that letter, which could not well or effectually 
 be done without reading the letter itself, that becomes an excepted 
 case in the courts below ; and for the convenient administration of 
 justice the letter is permitted to be read at the suggestion of the 
 counsel ; but considering it, however, as part of the evidence of the 
 counsel proposing it, and subject to all the consequences of having 
 such letter considered as part of his evidence. 
 
 In the course of the same proceeding, the counsel for the Queen, 
 having cross-examined Cruiseppe Sacchi, whether he had ever repre- 
 sented to any person after he had left the service of the princess, 
 that he had taxed himself with ingratitude towards a generous mis- 
 tress; it was objected, that the witness should be asked whether such 
 representation made by him was an oral or written one, because, if 
 written, the writing itself should be produced before the question 
 could be put. The following question was in consequence proposed 
 to the judges : " Whether, according to the established practice in the 
 courts below, counsel, in cross-examining, are entitled, if the counsel 
 on the other side object to it, to ask a witness whether he has made 
 representations of a particular nature, not specifying in his question 
 whether the question refers to representations in writing or in words?" 
 
 The Lord Chief Justice, in delivering the opinions of the judges, 
 observed that they felt some diflBculty in giving a distinct answer to 
 that proposition, as they did not remember an instance of a question 
 having been asked by the cross-examining counsel, precisely in those 
 words, and were not aware of any established practice distinctly 
 referring to such a question. He adverted to the rule of law re- 
 specting the examination of a witness as to a contract or agreement, 
 in which case, if the counsel on one side were to put a question
 
 219 CROSS-EXAMINATION OF WITNESSES. 
 
 generally as to the contract, the ordinary course is for the counsel 
 r*9O01 °" ^^^ other side to ^interpose an immediate question, whether 
 the contract referred to was in writing, and if the contract 
 should appear to have been in writing, then all further inquiry would 
 be stopped, because the writing itself must be produced. With 
 reference to this established rule, they considered the question .pro- 
 posed to them, and were of opinion that the witness could not 
 properly be asked on cross-examination, whether he had written such 
 a thing, 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 whether 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 writing, the counsel on the other side 
 would object to the question ; but if he should ask whether the wit- 
 ness had said such a thing, the counsel would undoubtedly have a 
 right to put that question. 
 
 It seems to be perfectly clear, that if it appear from the cross- 
 examination of the witness, or from any antecedent evidence, that 
 the writing in question has been destroyed, the objection founded on 
 the reasons alleged by the learned judges ceases ; and as the defend- 
 ant may at all events, in his turn, adduce secondary evidence of the 
 contents, there is no objection to his proving the contents in the first 
 instance by means of the adversary's witness. Thus it has been 
 held, Avhere depositions have been taken and lost, a witness, after 
 proof of the loss, may be cross-examined from copies." And in order 
 to let in this secondary evidence, the cross-examining party, before 
 or during the cross-examination, may call a person on his subpoena 
 r*99-|-i duces tecum to produce the writing," or *call on the adver- 
 sary so to do, if he has had notice to produce.^ 
 
 It is to be observed, that the opinions delivered by the judges 
 upon the preceding questions, were founded, for the most part, on 
 the principle that the best evidence must be adduced which the case 
 admits of, and on the supposition that the object of the cross-exami- 
 nation is to establish in evidence the contents of a written document 
 
 ° R. V. Skellard, 9 C. & P. (38 E. C. L. R.) 277. So he may be cross-examined 
 upon an office copy of an affidavit used on moving for a new trial, which on a 
 summons luis been admitted to be a true copy : Davies v. Davies, 9 C. & P. (38 
 E. C. L. 11.) 252 ; Atlorney-General v. Bond, 9 C. & P. (38 E. C. L. K.) 189. 
 
 " Atloniei/- General v. Bond, 9 C. & P. 189. 
 
 P Calvert v. Flower, 7 C. & P. (32 E. C. L. R.) 386.
 
 AS TO WRITINGS, TO TEST CREDIT. 221 
 
 as material to the cause. Where that is the case, the objection is in- 
 vincible. 
 
 But it frequently happens that the cross-examination of a -witness 
 as to wliat he has before said or written on the subject of inquiry, is 
 material only as a test to try his memory and his credit. 
 
 Such evidence is usually admissible forno other purpose than to try 
 the credit or capacity of the witness. What a witness stated on a 
 former occasion may be very material evidence to contradict him, or 
 impeach his testimony, but can rarely be evidence of the fact stated ; 
 and it is a remarkable circumstance, tliat the question was never, in 
 the course of inquiry in the case which occasioned so much discus- 
 sion on the subject, directly raised, whether a cross-examination as 
 to something written by the witness, for the purpose, not of proving 
 any fact in the cause, but simply of trying the credit or ability of 
 the witness, was subject to the same strict rules as governed exami- 
 nation for proving material facts, and whether the witness might not 
 be cross-examined as to what he had written, without producing the 
 writing, where, although not proved to be lost, it was not in the 
 possession of the examining party. It is also observable that the 
 answers are founded mainly, if not -wholly, on the supposition that 
 the writing to which the question relates is in the possession of the 
 examining party. 
 
 As the decisions of the judges have, according to opinions entitled 
 to consideration, left the question, whether a witness may not be 
 cross-examined as to the contents of a *written document, r^nnc)-] 
 for the purpose of impeaching his credit, without producing 
 the document, still open, it may not perhaps be deemed presumptuous 
 to offer a very few remarks upon this subject. 
 
 Upon every question of this nature two considerations arise : in 
 the first place, whether the practice be advantageous and desirable 
 with reference to some particular object ; and if so, still whether, on 
 the other hand, it may not be politic to exclude it, in order to avoid 
 some inconvenience which would result from its reception greater than 
 that which would accrue from its rejection. 
 
 That the permitting such a cross-examination may frequently 
 supply a desirable test for trying the memory and the credit of the 
 witness, admits of little doubt. If, for example, a witness profess to 
 give a minute and detailed account of a transaction long past, such 
 as the particulars of a conversation, or the contents of a written 
 document, and consequently where much depends upon the strength 
 of his memory, it is most desirable to put that memory to the test
 
 222 CROSS-EXAMINATION OF WITNESSES. 
 
 by every fair and competent means. His inability under those cir- 
 cumstances to state whether he afterwards committed the details of 
 the transaction to writing, or if he admitted that he did so, his in- 
 ability to state whether he then gave the same or a different account, 
 or his admission that he gave a different account, Avithout being able 
 to explain why he did so, must necessarily operate to a greater or less 
 extent to show the imperfection of his memory. 
 
 If a witness be called to prove the contents of a document written 
 by another, which, it may be, he has seen but once, and that at a 
 distant time, must it not be of the highest importance to ascertain 
 whether his powers of memory are sufficiently strong to enable him 
 to swear to the contents of a document written by himself at a later 
 period relating to the same subject-matter ? If he either deny that 
 he has made any representation on the subject, or be unable to re- 
 r*99q-i Collect what statement he has made, *the circumstance tends 
 to impeach the faithfulness of his memory, even to a greater 
 extent than if the representation had been merely oral, inasmuch as 
 the act of Avriting is more deliberate, and more likely to remain im- 
 pressed on the memory than a mere oral communication ; and the 
 contradiction Avhich the witness receives from the writing itself is 
 also more important and more complete than that which results from 
 the testimony of another, whose memory may be as liable to imper- 
 fection as that of the witness. 
 
 A cross-examination of this nature affords no mean test for trying 
 the integrity of the witness. An insincere witness, who is not aware 
 that his adversary has it in his power to contradict him, will fre- 
 quently deny having made declarations and used expressions which 
 he is, on cross-examination, ultimately forced to avow ; and it often 
 happens, that by his palpable and disingenuous attempts to conceal 
 the truth, he betrays his real character ; and thus his denials, his 
 manner and conduct, become of far greater importance, and much 
 more strongly impeach his credit than the answer itself does, which 
 he is at last reluctantly constrained to give. 
 
 Where the party is confined to the mere production and reading 
 of the paper, without previous cross-examination, all inferences of 
 this nature are obviously excluded, and the opportunity of, contra- 
 dicting him by the production of the document in opposition to his 
 statement on oath, cannot occur. 
 
 These observations apply even although the writing containing the 
 contradiction be in the possession of the party who cross-examines; 
 but it may frequently happen that the document may have been
 
 AS TO WRITINGS, TO TEST CREDIT. 223 
 
 lost, but that proof of the loss, and of the contents of the document, 
 are in the power of the party cross-examining. In such a case, if 
 the rule were strictly adhered to, a dilemma would occur, the effect 
 of Avhich might be to exclude the contradicting evidence. The ad- 
 verse party would not be able to go *into evidence of the r*09i-| 
 contradictory document before he had, upon cross-examina- 
 tion, given an opportunity of explanation to the witness, and he 
 could not, according to the rule, examine as to the contents of the 
 writing before he had proved the contents. At all events, he would 
 labor under a difficulty in securing the attendance of an adverse wit- 
 ness until such time as he had established the necessary proof. '^ 
 
 * It has been suggested, that for the purpose of warranting the cross-examina- 
 tion of a witness as to the contents of a writing which has in fact been destroyed, 
 or is in the hands of the other party, it is fit that the party proposing to cross- 
 examine shouUi be allowed to interpose evidence out of his turn to prove the 
 fact of destruction or its being in such hands ; or, that if any inconvenience 
 should result from pursuing this course, the court should, in the exercise of its 
 discretion, either admit the witness's statement in the first instance, or defer the 
 cross-examination until the adversary shall have entered on his case. With re- 
 spect to the second alternative, it may be observed, that to allow a party to enter 
 upon secondai'v evidence, as it were de bene esse, and Subject to be established 
 or defeated by the subsequent proof or failure of proof, would be going farther 
 than any existing precedent seems to warrant, and the party might reasonably 
 object to admitting secondary evidence, which may in the result turn out to 
 have been wholly inadmissible, nay, which perhaps his opponent might render 
 inadmissible, if it served his purpose, by afterwards omitting to support it by 
 legal evidence. Although, in Graham w. Dyster, 2 Stark. C. (3 E. C. L. R ) 21, 
 Sideways v. Dyson, Ibid. 49, Lord Ellenborough ruled, that a defendant, having 
 given the plaintiff notice to produce writings in his possession, cannot cross- 
 examine the plaintiff's witnesses as to their contents ; yet, in the latter case, he 
 observed, that though in strictness the evidence could not be anticipated, it was 
 rigorous to insist upon the rule, and a close adherence to it might be productive 
 of inconvenience. And, in Calvert. Administrator, v. Flower, 7 C. & P. (32 E. 
 C. L. K.) 386, the defendant, in the course of cross-examining the plaintiff's 
 witness, called for the intestate's ledger under a notice toproduce ; Lord Den- 
 man, C. J., said, that if it was not produced, the defendant's counsel might 
 cross-examine as to its contents. In Attorney-General v. Bond, 9 C. & P. (38 E. 
 C. L. R.) 189, the defendant's counsel, in order to cross-examine a witness for 
 the Crown, called a witness on his siihpa;na to produce an afBdavit. And, in 
 Reg V. Shellard, 9 C. & P. (38 E. C. L. R.) 277, in order to cross-examine a wit- 
 ness for the prosecution as to what he said before the magistrates, the defendant 
 called the officer of the court to prove that the depositions had been mislaid, and 
 the magistrate's clerk to show that they had been taken, and to prove a copy. 
 In the two latter cases it is obvious that it is essential for the simple purpose of 
 cross-examining the witness ; and then it would appear that it may undoubtedly 
 be done, the evidence interposed being evidence for the court and not for the
 
 225 CROSS-EXAMINATION OF WITNESSES. 
 
 r*99f;-| *Such a cross-examination would also frequently afford a 
 test of credit where the writing could not be produced, or 
 its loss proved ; for if the witness has in fact made statements in 
 writing which, if produced, would impeach his credit, and either out 
 of regard to his oath, or for fear of consequences, is induced to ad- 
 mit the fact, his answer, subject to the explanation which he may be 
 able to give, must produce the same effect. 
 
 The objections on the score of policy are, on the contrary, of a 
 limited nature, it being admitted on all hands that the answers 
 given cannot be received as any evidence of the writing itself for the 
 purposes of the cause. It is possible that the witness having written 
 what Avas true, may not recollect what he had written, or, to go to 
 the greatest extent, may, even mistakingly, and from defect of 
 memory, admit (even contrary to the truth) that he has given a de- 
 scription of the transaction inconsistent with his present testimony ; 
 but even this would operate as a test to try his memory, and the 
 result would show that his recollection was imperfect : a considera- 
 tion of the highest importance where the witness is called to detail 
 conversations or the contents of a written document ; a task to 
 which few memories are adequate under ordinary circumstances. 
 
 And instances may be cited where evidence is admitted for one 
 purpose and object to which it is applicable, although with reference 
 to other purposes and objects to which the evidence relates it is in- 
 r*99fil ^clmissible and wholly ^inoperative. Thus, in the ordinary 
 case where a witness is cross-examined as to oral declara- 
 tions made by him and connected with the cause, evidence is con- 
 stantly offered to prove those declarations, . where he denies them, 
 not with a view to prove the truth of a declaration, but in order to 
 impeach his credit. If, for instance, in an action for goods sold and 
 delivered, a witness called to prove the delivery of the goods were 
 to deny that he said to A. B. that the defendant in fact never had 
 the goods, it would be competent to the defendant to call A. B. to 
 prove that the witness did in fact make that declaration, not with a 
 view to affect the plaintiff by making the declaration evidence of non- 
 delivery (for it is no evidence of the fact), but to impeach the credit 
 of the witness. 
 
 Here tlie question is allowed for the purpose of impeaching the 
 
 jury ; but where, as in the two first cases cited above, the object is to establish 
 independent proof, it may be questioned whether the proper course is not to 
 postpone the cross-examination on tiiis point, or to force the party to call the 
 witness as his own.
 
 AS TO WRITINGS, TO TEST CREDIT. 226 
 
 testimony of the witness, although it involves a fact of which the 
 answer would be no evidence. If so, then, if the very same state- 
 ment were in writing, why might not the question also be allowable 
 for the very same limited purpose, that is, to impeach the witness's 
 credit, although to establish the truth of the written statement, viz., 
 that the goods had not been delivered, it would afford no evidence 
 whatsoever. 
 
 Again, upon the ordinary examination of a witness on the voire 
 dire, with a view to show that he is wholly incompetent, he might 
 have been examined as to the contents of a written document not pro- 
 duced ; and the reason is that it is not probable that the writing 
 which created his incompetency would be in possession or within the 
 knowledge of the adversary : a reason which would frequently apply 
 in full force in the present instance.^ 
 
 *To the objection that to allow such a cross-examination r^Q^rr-i 
 would be to deviate from the rule that the best evidence 
 ought to be adduced that the case admits of, it may be answered 
 that the principle of the rule is applicable only to evidence offered 
 to prove a material fact, and is inapplicable where the object is 
 merely to try the credit or ability of the witness. The objection 
 that otherwise only part of a document might be proved, seems to 
 admit of the same answer. Besides, if the witness did recollect what 
 he had written, he would be entitled to state the whole, or at least 
 so much as was material ; and if he denied having written to the 
 effect stated, he could not be contradicted without producing the 
 document and reading the whole. 
 
 It has, however, very recently been held by the Court of Common 
 Pleas, that a witness cannot on cross-examination be asked whether 
 he did not write an answer to a letter which charged him with an 
 offence, unless that letter is produced or its absence satisfactorily 
 accounted for, although the sole object be to discredit the witness. *^ 
 In an earlier case, also, the Court of Queen's Bench has said that a 
 party has no right to cross examine a witness on the contents of an 
 affidavit made by him, without putting the original, or an examined 
 
 * It is true, that if the witness, upon examination on the voire dire, has the 
 instrument with him, it must be produced ; for the reason for dispensing with 
 its actual production, viz., the difficulty of procuring it, has ceased : Butler v. 
 Carver, 2 Stark. C. (3 E. C. L. R.) 433. But where a witness is cross-examined 
 in relation to a writing to try his credit, the reasons for permitting such cross- 
 examination do not cease, although the party cross-examining be in possession 
 of that instrument. 
 
 f Macdonnell v. Evans, 21 L. J., C. P. 141. 
 14
 
 227 CROSS-EXAMINATION OF WITNESSES. 
 
 or admitted copy of it, into his hands ;^ and, of course, where an 
 r*99fti '"^ffiJ^^^'it *is produced with a view to cross-examine the wit- 
 ^ "" ness who made it, and it appears to be the joint affidavit of 
 the witness and another, and to relate to other persons besides the 
 party adducing it, he can use so much of it only as relates to himself 
 and was made by the witness. ^^ 
 
 A party having produced a document in cross-examination, is not 
 bound to read it before he comes to his own case, although he has 
 shown it to the witness and cross-examined him upon it ;*" and if a 
 party on cross-examination obtains proof of a document, the adversary, 
 it has been said, has no right to see the paper for the purpose of re- 
 examining the witness as to the paper being in the handwriting of 
 the party whose handwriting is sworn to.' If the cross-examining 
 counsel merely produce a paper and ask the witness whether it is in 
 his handwriting, that does not entitle the other side to see it, but if 
 he proceed to found any question on the document, the opposite 
 counsel has a right to see it ;•' and if, upon a writing being put into 
 the witness's hand for the purpose of cross-examination, the cross- 
 examination wholly fails, the adverse counsel is not entitled to look 
 at the paper.'' And it has been held, that where a witness has been 
 
 8 Bastard v. Smiih, 10 Ad. & E. (37 E. C. L. R.) 213, in which case the origi- 
 nal was produced, and the expense of carrying it down was allowed by the 
 court, on the ground, it would seem, that Tindal, C. J., had held that the origi- 
 nal must be produced. But in Highfield v. Peake, M. & M. (22 E. C. L. R.) 
 109, which was an issue out of Chancery, an examined office-copy, and in Davies 
 V. Dai'tes, 9 Car. & P. (38 E. C. L. R.) 252, an office copy, admitted to be a copy 
 under a judge's order, of an affidavit made by a witness in the cause, were al- 
 lowed to be used for the purpose of cross-examination and contradiction. So an 
 examined copy of an answer of the witness in Chancery was allowed to be used 
 in Eu-er v. Ambrose, 4 B. & C. (10 E. C. L. R.) 25. 
 
 BK Attorney- General v. Bond, 9 C. & P. (3S E. C. L. R.) 189. 
 
 !> Holland v. Reeves, 7 C. & P. (32 E. C. L. R.) 36, cor. Alderson, B. 
 
 » By Bosanciuct, J., in Russell v. Rider, G C. & P. (25 E. C. L. R.) 416. But 
 it is extremely diiiicult to understand upon what ground this can be sustained, 
 and Holland v. Reeves, 7 C. & P. (32 E. C. L. R.) 36, is opposed to it. In Col- 
 lier V. Nokes, 2 Car. & K. (61 E. C. L. R.) 1012, it was said that Parke, B., had 
 rulr 1 in the same way as Bosanquet, J. ; and Wilde, C. J., in deference to that 
 Ofiitiion, ac([uiesced in the same course, but expressed his own opinion that the 
 oitpositc counsel had the right to see the document. If the proof failed, he cer- 
 tainly would liiivc no right to see the paper, and perhaps it was confounded with 
 that case. 
 
 J Cope v. Thames Haven Dock Company, 2 C. & K. (61 E. C. L. R.) 757. 
 
 " 7.'. V. Duncombe, 8 C. k P. (34 E. C. L. R.) 369.
 
 AS TO DEPOSITIONS BEFORE MAGISTRATES. 229 
 
 examined as to entries in a *book, the adversary cannot r^^Qo-i 
 cross-examine as to other entries wliich have not been used, 
 without putting them in as his evidence.^ 
 
 With respect to the cross-examination of witnesses in criminal 
 cases, as to matters occurring before the magistrates, the following 
 rules of practice have been laid down by the judges™ since the passing 
 of the Prisoners' Counsel Bill : — 
 
 1. That where a witness for the Crown has made a deposition 
 before a magistrate, he cannot, upon his cross-examination by the 
 prisoner's counsel, be asked whether he did or did not in his depo- 
 sition make such or such a statement, until the deposition itself has 
 been read, in order to manifest whether such statement is or is not 
 contained therein, and that such deposition must be read as part of 
 the evidence of the cross-examining counsel. 
 
 2. That after such deposition has been read, the prisoner's counsel 
 may proceed in his cross-examination of the witness as to any sup- 
 posed contradiction or variance between the testimony of the witness 
 in court, and his former deposition, after which the counsel for the 
 prosecution may re-examine the witness, and, after the prisoner's 
 counsel has addressed the jury, will be entitled to the reply, and in 
 case the counsel for the prisoner comments upon any supposed vari- 
 ance or contradiction without having read the deposition, the court 
 may direct it to be read, and the counsel for the prosecution will be 
 entitled to reply upon it. 
 
 3. That the witness cannot in cross-examination be compelled to 
 answer whether he did or did not make such a ^statement r*9qn-| 
 before the magistrate until after his deposition has been read, 
 
 and it appears that it contains no mention of such statement. In 
 that event the counsel for the prisoner may proceed with his cross- 
 examination, and if the witness admits such a statement to have been 
 made, he may comment upon such omission, or upon the effect of it 
 upon the other part of his testimony ; or if the witness denies that 
 he made such a statement, the counsel for the prisoner may then, if 
 such statement be material to the matter in issue, call witnesses to 
 
 • By Gurney, B., Gregory v. Tavernon, 6 C. & P. (25 E. C. L. R.) 280. But, 
 semble, he might use them to refresh the memory of the witness ; a writing may 
 (as has been seen) be used for this purpose without making it evidence. 
 
 ™ These rules have been laid down by the judges for the regulation of counsel, 
 but it is discretionary with the judge whether he will put questions to the wit- 
 ness as to any discrepancy between the statement of the witness on the trial and 
 that contained in his depositions, without having it first read : Eex v. Edwards, 
 8 C. & P. (34 E. C. L. R.) 26.
 
 230 RE-EXAMINATION OF WITNESSES. 
 
 prove that lie had made such statement. But in either event the 
 reading of the deposition is the prisoner's evidence, and the counsel 
 for the prosecution will be entitled to reply. 
 
 The witness therefore cannot, on cross-examination, be asked any 
 question as to his statement before the magistrates without putting 
 in his deposition ; and indeed, in cross-examining a witness as to any 
 other statement he may have made, it has been ruled that the ques- 
 tions put to him should expressly exclude the occasion of his exami- 
 nation before the magistrates or coroner." If, however, from any 
 accident, the deposition of the witness has not been duly taken or 
 returned, this rule of course ceases to apply :" but the mere cir- 
 cumstance of the magistrate having omitted to set forth the cross- 
 r*0'^n examination before *him will not exclude the operation of 
 the rule ; the deposition should be read to evidence the fact 
 of the statement alluded to not being contained in it.^ 
 
 A witness may be re-examined by the party who called him, upon 
 all the topics on which he has been cross-examined :'' this gives an 
 
 ■^ Per Patteson, J., in Rex v. Holden, 8 C. & P. (34 E. C. L. R.) 609 ; and 
 Eex V. Shellard, 9 C. & P. (38 E. C. L. R.) 280; but Rolfe, B., has dissented 
 from this ruling : IIarris''s case, Liv. Sum. Ass. 1845, Roscoe's Crim. Ev., 3d ed. 
 237. 
 
 " Eex V. Griffiths, 9 C. & P. (38 E. C. L. R.) 746. And where minutes of the 
 examination of the witnesses before the magistrates were made, and then a clerk 
 by himself proceeded to put them in form, and in doing so put questions to the 
 witnesses, the answers to which he embodied in the depositions, it was held by 
 the Court of Criminal Appeal that a witness might be asked whether he did not 
 make a particular statement to the clerk, without putting in his deposition, 
 though that statement was inserted in his deposition, which was afterwards 
 read over to him, after he had been re-sworn, in the presence of the magistrate 
 and the prisoner, who had full power to cross-examine him: Reg. v. Christo- 
 pher, 2 C. & K. (61 E. C. L. R.) 994. 
 
 p Rex V. Tmjlor, 8 C. & P. (34 E. C. L. R.) 726. The absence of such state- 
 ment in the deposition will not, however, preclude the prisoner from asking the 
 question : Reg. v. Curtis, 2 Car. & K. (61 E. C. L. R.) 763. 
 
 •J In the cases mentioned, ante, p. 194, where a witness, whose name is on the 
 back of the indictment, not having been called for the prosecution, may be 
 called by the judge and cross-examined by the prisoner, the counsel for the 
 prosecution cannot examine him on any point which did not arise on the cross- 
 examination, and perhaps cannot examine him at all : R. v. Bezley, 4 C. <& P. 
 (19 E. C. L. R.) 220; R. v. Harris, 7 C. & P. (32 E. C. L. R.) 581. This is a 
 reason why the power, there alluded to, should be very rarely exercised by the 
 judge; and why the rule, said to be laid down ])y the judges, that the prisoner 
 should call sucli a witness as his own, [Reg. v. Woodhead, 2 Car. & K. (61 E. 
 C. L. R. ) 520,) should ]>e adhered to. It has, however, been held that the judge 
 may direct the witness's deposition to be read for the purpose of contradicting 
 his statement at the trial : Oldroi/d^s case, Russ. & Ry. 88.
 
 AS TO CONVERSATIONS AND WRITINGS. 231 
 
 opportunity of explaining any new facts wliicli have come out upon 
 cross-examination ;•■ but as tlic object of re-examining a witness is to 
 explain the facts stated by the witness upon cross-examination, the 
 re-examination is of coui'se to be confined to the subject-matter of 
 cross-examination.^ 
 
 Where the witness has been cross-examined as to declarations 
 made by him, a counsel has a right, on re-examination, to ask all 
 questions which may be proper to draw forth an explanation of the 
 sense and meaning of the expressions used by the witness on cross- 
 examination, if they be in themselves doubtful, and also of the 
 motive by which the witness was induced to use those expressions ; 
 but he has no right to go farther, and to introduce matter new in 
 itself, and not suited to the purpose of explaining either the expres- 
 sions or the motives of the witness.'" 
 
 *It was formerly held that where a witness has been cross- ^ , 
 
 . . . r*2321 
 
 examined as to a conversation with the adverse party in the *- "^ -' 
 
 "■ The Queen^s case^ 2 B. & B. (6 E. C. L. R.) 297. Thus, upon an issue whether 
 a cargo which had been loaded on deck was improperly loaded, the plaintiiF's wit- 
 nesses, called to prove that loading part of the cargo on deck was dangerous, 
 stated in cross-examination that it was usual on spring and fall voyages for ships 
 in the particular trade to carry deck cargoes. On re-examination, they were asked 
 whether deck cargoes shipped on fall voyages were at the risk of the ship-owner 
 or the merchant; an objection to this question was held to have been properly 
 overruled: Gould and others v. Oliver, 2 M. & G. (40 E. C. L. R.) 208. So 
 where, on the trial of J., for discharging loaded arms at B., B. was cross-exam- 
 ined, with a view to discredit his evidence, as to whether he had not used violent 
 language towards his father ; having admitted it, he was allowed to be asked on 
 re-examination how his father had acted towards him before he used that lan- 
 guage : R. V. St. George, 9 C. & P. (38 E. C. L. R.) 483. And on the trial of 
 an action for a libel, imputing fraud to the plaintiff in betting against his own 
 horse and then withdrawing him, a witness for the plaintiff having stated on 
 crosvS-examination that, by the rules of the Jockey Club, the owner of a horse 
 might bet against his own horse and then withdraw him, the witness was allowed 
 to be asked on re-examination whether he did not consider such conduct to be 
 dishonorable : GrtviUe v. Lamb, 5 Q. ]). (48 E. C. L. R.) 731. Thus, even if the 
 facts elicited on cross-examination are not strictly evidence, but are of a nature 
 to prejudice the plaintiff, he may re-examine upon them, unless the defendant 
 applies to strike them out: Blewett v. Tregoning, 3 Ad. & E. (30 E. C. L. R.) 
 554. 
 
 ^ A witness may be re-examined by the party calling him even after a cross- 
 examination, as well for the introduction of matter new in itself as for the 
 purpose of explaining the expressions or the motives of the witness, when 
 the omission to examine as to such new matter, when first called, arose from 
 inadvertence or other cause to be approved by the court: Clarke v. Voree, 18 
 Wend. 193. G.
 
 232 RE-EXAMINATION OF WITNESSES. 
 
 suit, whether criminal or civil, the counsel for that party has a right 
 to lay before the court the whole which was 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 matter not 
 properly connected with the part introduced upon the previous ex- 
 amination, 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 him at the same time the 
 benefit of the entire residue of what he said on the same occasion.* ^ 
 But in the Queen s case eleven of the judges were of opinion that the 
 conversation of a witness with a third person stood upon a different 
 ^ ^^ ^ footinar, and was distinguishable from the case of *a conver- 
 ■- -■ sation with a party, on the following grounds, viz, : " The 
 conversation of a witness with a third person is not in itself evidence 
 in the suit against any party in the suit. It becomes evidence only 
 as it may aifect the character and credit of the witness, which may 
 be affected by his antecedent declarations, and by the motive under 
 which he made them ; but when once all which had constituted the 
 motive and inducement, and all which may show the meaning of the 
 words and declarations, has been laid before the court, the court be- 
 comes possessed of all which can affect the character or credit of the 
 witness, and all beyond this is irrelevant and incompetent."' 
 
 ' Queen's case, 2 B. & B. (6 E. C. L. R.) 298. 
 
 ' Upon these grounds, eight of the judges (Best, J.,dissentiente) were of opin- 
 ion that if, on the trial of an action or indictment, a witness examined on be- 
 half of the plaintiflp or prosecutor, upon cross-examination by the defendant's 
 counsel, states, that at a time specified he told A. that he was one of the wit- 
 nesses to be examined against the defendant, and being re-examined by the 
 plaintiiF's or prosecutor's counsel, states what induced him to mention this to 
 A., the plaintiff or prosecutor's counsel cannot further re-examine the witness 
 as to such conversation, even so far only as it relates to his being one of the 
 witnesses. 
 
 Abbott, C. .J., in delivering the opinion of the judges, observed: "The ques- 
 tion, as proposed by the House, contains these words ; ' and being re-examined, 
 had stated what induced him to mention to A. what he had so told him ;' by 
 
 ' Where a witness is introduced by a party and is interrogated as to a particu- 
 lar fact and the opposite party on cross-examination asks him generally if he 
 ever communicated that fact to any one and to whom, and he answers that he 
 communicated it to the party calling him, this does not entitle the party calling 
 him, to pursue the inquiry as to his own reply, and other conversation with the 
 witness at the time of the communication. Otherwise, if the witness be asked 
 on cross-examination specifically wli(;thcr he made the communication to the party 
 calling him : Winckeli v. Lalham, Cow. 082. G.
 
 AS TO CONVERSATIONS AND WRITINGS. 234 
 
 *In the late case of Prince v. Samo'' the Court of Queen's r*.9Q4-| 
 Bench, after much deliberation, overruled tliis distinction, 
 and laid down a rule, founded in good policy, that whether the wit- 
 ness be cross-examined as to a conversation with a party to the suit 
 or with a third person, the re-examination must, in the former case, 
 as well as the latter, be confined to matters connected with the evi- 
 dence given on cross-examination, as tending to show its true nature 
 and bearinof. The action in that case was for a malicious arrest for 
 money alleged by the plaintiff to have been given to him. The 
 plaintiff called as a witness his attorney, who having been present 
 when the plaintiff was examined as a witness on an indictment for 
 perjury, stated, on cross-examination, that the plaintiff on the trial 
 
 which I understand that the witness had fully explained his whole motive and 
 inducement to inform A. that he was to be one of the witnesses : and so under- 
 standing the matter, and there being no amhigaity in the words, ' I am to be one 
 of the witnesses,' I think there is no distinction between the previous and subse- 
 quent parts of the conversation, and I think myself bound to answer your Lord- 
 ships' question in the negative." 
 
 His Lordship then gave the reasons of the eight judges for distinguishing be- 
 tween a conversation between the witness and a party, and one between the wit. 
 ness and a third person, to the effect above stated. 
 
 Best, J., was of opinion that the rule which was acknowledged to have been 
 settled as to conversations of a party to the suit, applied with equal reason and 
 force to the statements and conversations of a witness ; and held, that if one 
 part of the conversation of a witness has been drawn from him by cross-ex- 
 amination, with a view of disparaging his testimony, the whole of what passed 
 in that conversation ought to be admitted on re-examination ; and this is justly 
 due to the character of the witness, who is entitled, in vindication of his 
 character, to have the entire conversation fairly and fully detailed in evidence ; 
 it was due to him also, as a security against proceedings which might other- 
 wise be instituted against him on statements partially extracted on cross-exami- 
 nation. 
 
 The Lord Chancellor and Lord Redesdale also differed from the majority of 
 the judges. As the learned judges were pleased to guard their opinion by stat- 
 ing that they understood the question not to assume that the witness had fully 
 explained his whole motive and inducement to inform A., the decision in the 
 particular instance thus presented to them does not go the length of excluding 
 the cotemporaneous statement made by the witness where it would be the best 
 exposition of his real motives. And where a witness was asked, on cross-exami- 
 nation, as to part of a convei'sation between the plaintiff and defendant relative 
 to the subject-matter of the action, of which conversation the plaintiff had in- 
 formed the witness ; it was held, that on re-examination he might properly be 
 asked to relate the whole of that conversation : Ghjnn v. Houston, 2 M. & G. 
 (40 E. C. L. R.) 337. 
 
 " 7 A. & E. (34 E. C. L. R.) 627.
 
 234 RE-EXAMINATION OF "WITNESSES. 
 
 of the indictment admitted that he had repeatedly been insolvent 
 and remanded by the court. It was proposed, on re-examination, to 
 inquire whether the plaintiff had not also upon the same occasion 
 stated the circumstances out of which the arrest had arisen, and 
 what that statement was. Lord Denman, on the objection being 
 P^Qor-i taken, rejected the evidence, *on the ground "that the wit- 
 ness might be asked as to every thing said by the plaintiff 
 on the trial of the indictment that could in any way qualify or ex- 
 plain the statement to which he had been cross-examined, but that 
 he had no right to add any independent history of transactions 
 wholly unconnected with it." On a motion for a new trial the court 
 held that the same rule which applied to statements made by a wit- 
 ness applied also to those made by a party ; and, after observing 
 that the opinion of Lord Tenterden was extrajudicial, and not in 
 terms adopted by Lord Eldon and the judges, who concurred in the 
 answer to the proposed question, and was expressly denied by Lords 
 Redesdale and Wynford, added : " In our opinion the reason of the 
 thing would rather go to exclude the statements of a party making 
 declarations which cannot be disinterested. Nothing would be more 
 easy than to find or imagine examples of the extreme injustice that 
 might result from allowing such statements to be received ; but none 
 can be stronger than the actual case. Because the plaintiff was 
 shown to have said that he was insolvent, he would have been al- 
 lowed, without any reference to his own insolvency, to prove by his 
 discourse at the same period every averment in his declaration, with 
 every circumstance likely to excite prejudice and odium against the 
 defendant; and if this were evidence, the jury would be bound to 
 consider and give full effect to it, and thus award large damages for 
 an injury of which no particle of proof could be given excepting the 
 plaintiff's own assertion."'' 
 
 r*9Qfi' *-^ contrary rule would be supported by a specious, but 
 
 in this and in several other instances a fallacious, principle ; 
 
 for whilst it may, at first view, seem to be conducive to enlarged 
 
 views of policy and convenience to admit the whole of a particular 
 
 " In Slim/e v. Buchanan, 10 Ad. & E. (37 E. C. L. R.) 598, a defendant pro- 
 duced, under a notice so to do, a book containing copies of letters written by 
 him to his partners, and some of these having been read on the part of the 
 plaintifT, the defendant chiimed a right to read to the jury other letters upon the 
 same suliject copied in the same book, but not referred to in those read by the 
 plaintifl": it was, however, held, that he had no right to do this ; and the case of 
 Prince v. Samo was cited and confirmed by the court. And see Whitfield v. 
 Aland, 2 Car. & K. (61 E. C. L. R.) 1015.
 
 AS TO CONVERSATIONS AND WRITINGS. 236 
 
 conversation where part of it is given in evidence, and so to afford 
 to the jury the most ample means for attaining to the truth, yet 
 here the reverse is true ; for were this to he allowed, parties appre- 
 hensive of the unjust consequences so forcibly represented in the 
 foregoing judgment, would frequently be deterred from giving any 
 such admission or statement by the adversary in evidence ; and thus 
 the means of information afforded to the jury would be narrowed 
 rather than enlarged by the more extensive rule. 
 
 Where a witness, on cross-examination, varies from the statement 
 made on his examination in chief, the party calling him (it has been 
 held) may, on re-examination, inquire into facts to show that the wit- 
 ness had been induced to betray that party. ^ 
 
 It has already been seen that a witness cannot obtrude evidence on 
 cross-examination which he could not have given in chief; but if 
 counsel voluntarily cross-examine as to inadmissible matter, the ad- 
 verse counsel is entitled to re-examine upon it.^ 
 
 It seems that the court will, after a case is closed, allow a witness 
 to be called back, or receive fresh evidence, to get rid of objections 
 which are beside the justice of the case, and little more than mere 
 form, but not to get rid of *any difficulty on the merits, r^nqy-i 
 Where the question was as to the petitioning creditor's debt 
 on a bill of which the bankrupt was the drawer, and no proof of any 
 default by the acceptor had been shown, the court allowed a witness 
 to be called, after the case had been closed, to prove the dishonor and 
 notice to the bankrupt.'' 
 
 '" Dunn V. Aslett, 2 M. & Rob. 122, ante, p. 168. But where a witness for 
 the plaintiff, not varying from his examination in chief, stated, on cross-examina- 
 tion by the defendant, important facts for the latter, by whom also he had been 
 subpoenaed, the plaintiff was not allowed, on re-examination, to ask him whether 
 he had not given a different account to the plaintiff's attorney : Winter v. Butt, 
 2 M. & Rob. 357 ; and see post, as to the right of a party to discredit his own 
 witness. 
 
 ^ Blewett V. Tregoning, 3 Ad. & E. (30 E. C. L. R.) 554 ; 5 Nev. & M. (36 E. 
 C. L. R.) 308. And see Greville v. Lamh, 5 Q. B. (48 E. C. L. R.) 731. 
 
 y Giles v. Powell, 2 Car. & P. (12 E. C. L. R.) 259 ; s. p., Walls v. Atcheson, 
 Ibid. 268 ; and see 2 Phil. Evid. 409, 9th edit. ; Broum v. Giles, 1 C. & P. (12 
 E. C. L. R.) 118 ; s. p., R. V. Watson, 6 C. & P. (25 E. C. L. R.) 653. But 
 where the question was, which of two sisters had taken the plaintiff's house, 
 and his witness, on his examination in chief, had said it was E. D., but the 
 defendant's witnesses gave evidence that it was his sister, Park, J., would not 
 allow the first witness to be recalled, in order, now that he had seen E. D. in 
 court, that he might speak more confidently as to her identity, observing that if 
 he did so he must allow all the plaintiff's witnesses to be examined over again : 
 Roey. Day, 7 C. & P. (32 E. C. L. R.) 705.
 
 237 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 IV. The mode of rebutting the testimony of witnesses. 
 
 The credit of a witness may be impeached either by cross-exami- 
 nation, subject to the rules already mentioned, or by general evi- 
 dence affecting his credit, or by evidence that he has before done or 
 said that vs-hich is inconsistent with his evidence on the trial ; or, 
 lastly, by contrary evidence as to the facts themselves.^ 
 
 It is perfectly well settled that the credit of a witness can be im- 
 peached by general evidence only, and not by evidence as to par- 
 ticular facts not relevant to the issue ;^ for this would cause the in- 
 quiry, Avhich ought to be simple and confined to the matters in issue, 
 to branch out into an indefinite number of issues. The characters, 
 not only of the witness in the principal cause, but of every one of 
 the impeaching collateral witnesses, might be impeached by separate 
 charges, and loaded with such an accumulated burthen of collateral 
 proof, that the administration of justice Avould become impracticable. 
 Besides this, no man could come prepared to defend himself against 
 r*2S8"I ^^^^S^'^ * which might thus be brought against him, without 
 previous notice : and though every man may be supposed to 
 be capable of defending his general character, he cannot be prepared 
 to defend himself against particular charges of which he has had no 
 previous notice.*" Questions put to a witness himself upon cross- 
 examination are not, it may be observed, open to this objection, since 
 his answer is conclusive as to all collateral matters. The proper 
 question to be put to a witness for the purpose of impeaching the 
 general character of another witness is, whether he could believe 
 him upon his oath ? When general evidence of this nature has been 
 
 ' See Vol. II., tit. Character. 
 
 " R. V. Watson, 2 Stark. C. (3 E. C. L. R.) 151 ; 32 How. St. Tr. 458 ; Gur- 
 ney's report of same case, vol. ii. p. 288 ; Lmjer^s case, 16 How. St. Tr. 285 ; 
 Rookwood' s case, 13 How. St. Tr. 210 ; B. N. P. 269 ; see also Sharp v. Scoging, 
 Holt's C. 541 ; De la Matte's case, 21 How. St. Tr. 811 ; Mawson v. Hartsink, 4 
 Esp. C. 102. 
 
 ^ A party who has cross-examined a witness may impeach him vinless he has 
 introduced new matter in the cross-examination : Peoples. Moore, 15 Wend. 419. 
 If a party cross-examining a witness draws out facts material to the issue, other 
 than those elicited by the party callin<f him, which are not satisfactory, he may 
 contradict or discredit them, by any legal proof: Lewis v. Ilodgdon, 5 Shep. 
 207.
 
 REBUTTING THE TESTIMONY OF WITNESSES. 238 
 
 given to impeach the credit of a Avitness, the opposite party may 
 cross-examine as to the grounds upon which that belief is founded."^ 
 
 " Mawson v. Ilartsink, 4 Esp. 102 ; Sharp v. Scoging, Holt 541. Where a 
 party states that he would not believe a witness on his oath, it is no objection 
 that he has never heard him examined on his o.ath, if he have, from previous 
 knowledge of his character, reasonable ground of belief that his word cannot be 
 trusted on oath : R. v. Bispham, 4 C. & P. (19 E. C. L. R.) 392. 
 
 ^ "A witness called to impeach or support the general character (reputation) 
 of another," says Judge Swift, " is not to speak of his private opinion or of par- 
 ticular facts in his own knowledge ; but he must speak of the common reputa- 
 tion among his neighbors and acquaintances. The only proper questions to be 
 put to him, are — whether he knows the general character (reputation) of the 
 witness intended to be impeached, in point of truth, among his neighbors ; and 
 what that character (reputation) is? AVhether good or bad? The witness may 
 be inquired of as to the means and opportunity he has of knowing the character 
 (reputation) of the witness impeached ; as how long he has known him ; how near 
 he lives to him; and whether his character has been a subject of general con- 
 versation ; but his testimony must be founded on the common repute and un- 
 derstanding of his acquaintance as to truth, and not as to honesty, &c. :" Swift's 
 Evidence 143. See Kimmel v. Kimmel, 3 S. & R. 336 ; Wike v. Lightner, 11 S. 
 & R. 198. The credit of a witness may be impeached by showing that he was 
 intoxicated at the time the transaction happened about which he testifies : Tuttle 
 V. Russell, 2 Day 201 ; Swift's Evid. 144. It has been decided in.North Caro- 
 lina [Tennessee] and Kentucky, that a party may impeach the general moral 
 character of his adversary's witness, and is not confined to the question of his 
 reputation for veracity : State v. Stallings et al., 2 Hayw. 300 ; Hume v. Scott, 3 
 iNIarsh. 261 ; Gilliam v. State, 1 Head. 88 ; Henderson v. Hayne, 2 Mete. (Ky.) 
 342. But the adverse party may afterwai'ds inquire respecting the reputation 
 of the witness in point of veracity : Noel v. Dickey, 3 Bibb 258. In Massachu- 
 setts, the credit of a female witness may be impeached, by showing that she is 
 a common prostitute : Comm. v. Murphy, 14 Mass. 387 ; aliter in New York ; 
 Jackson v. Lewis, 13 Johns. 504. M. 
 
 But the decision in Commonwealth v. Murphy, if not overruled, seems to be 
 confined in its application to the case in which a common prostitute is offered 
 as a witness ; for where upon a complaint under statute 1785, c. 66, ^ 2, for the 
 maintenance of a bastard child, it was ruled, that evidence that the general char- 
 acter of the complainant for chastity, previous to her connection with the respond- 
 ent was bad, and that she had previously had frequent criminal intercourse with 
 other persons, was not admissible for the purpose of impeaching her credit 
 as a witness : Comm. v. Moore, 3 Pick. 194. But in such a suit the woman 
 herself may be asked on the cross-examination whether she had had criminal 
 connection with any other man, about the time she charged the child to have 
 been begotten, as such a question would be material and relevant to the issue, 
 for, if answered in the affirmative, it would prove a fact rendering it impossible 
 for her to have determined who was the father of the child ; and she could not 
 refuse to answer, on the ground that she would thereby criminate herself, having
 
 238 KEBUTTING THE TESTIMONY OF WITNESSES. 
 
 In the next place, the witness may be contradicted by others who 
 represent the fact differently, or by proof that he has said or written 
 
 waived her privilege by voluntarily testifying to matters necessarily criminating 
 herself upon her examination-in-chief: Swift's Law of Evid. 80. I. 
 
 Evidence of character is admissible to discredit a witness, but it must go to 
 his general character and not to specific facts: Wilkev. Lightner, 11 S. & R, 
 198; Kimmelv. Kimmel, 3 S. & R. 336; State v. Parks, 3 Ired. 296; Ramsey 
 V. Johnson, 3 Penna. 293; Chess v. Chess, 1 Penna. 32; Barton v. Mor- 
 phes, 2 Dev. 520 ; Walker v. State, 6 Blackf. 1 ; Rixeij v. Bayce, 4 Leigh 330 ; 
 Frt/e V. Bank, 11 111. 367 ; Hoitt v. Moulton, 1 Fost. 586 ; Gilbert v. Sheldon, 13 
 Barb. 623 ; Nugent v. State, 18 Ala. 521 ; Wilson v. State, 16 Ind. 392; Boon v. 
 Weathered, 23 Tex. 675 ; Crabtree v. Kile, 21 111. 180. That the evidence must 
 go to the character of the witness for truth and veracity, and not to general 
 character, see Jackson v. Lewis, 13 Johns. 504; Gilchrist v. McKee, 4 Watts 
 380 ; State v. Hoimrd, 9 N. H. 485 ; Wilds v. Blanchard, 7 Vt. 141 ; Comm. v. 
 Moore, 3 Pick. 194; Bakeman v. Eose, 14 Wend. 105; U. S. v. Vansickle, 2 
 McLean 219; Phillips v. Kingjield, 1 App. 375; State v. Bruce, 11 Shep. 71 ; 
 Spears v. Forrest, 15 Vt. 435 ; Bakeman v. Rose, 18 Wend. 146 ; State v. O'Neale, 
 4 Ired. 88 ; Crane v. Thayer, 18 Vt. 162 ; Sorrelle v. Craig, 9 Ala. 534 ; Comm. 
 v. Churchill, 11 Mete. 538 ; Ford v. Ford, 7 Humph. 92; contra, Hume v. Scott, 3 
 A. K. Marsh. 260; Tuckett v. May, 3 Dana 79 ; Johnson v. People, 3 Hill 178 ; 
 State V. Bosicell, 2 Dev. 209 ; Day v. State, 13 Mo. 422. The first question to a 
 witness called to impeach the character of another must be confined to his repu- 
 tation for truth : Teese v. Huntingdon, 23 How. (U. S.) 2 ; State v. Sater, 8 Clarke 
 ' 420 ; Boyle's Exr's v. Kritzer, 10 Wright 465 ; Rathhurn v. Ross, 46 Barb. 127 ; 
 Aijres V. Duprey, 27 Tex. 593 ; Sharp v. State, 16 Ohio St. 218 ; Killmrn v. 
 Mullen, 22 Iowa 498 ; George v. State, 39 Miss. 570 ; Bell v. Renner, 16 Ohio St. 
 45 ; Comm. v. Billings, 97 Mass. 405 ; Comm. v. Latvler, 12 Allen 585 ; Bullard 
 V. Lam,hert, 40 Ala. 204 ; Lyman v. Philadelphia, 6 P. F. Smith 488 ; Knight v. 
 House, 29 Md. 194 ; State v. Cherry, 63 N. C. 493 ; Taylor v. Comw., 3 Bush 508 ; 
 Simmons v. Holster, 13 Minn. 249 ; Taylor v. Clendening, 4 Kans. 524 ; Atwood 
 V. Impson, 20 N. J. (Eq.) 150; Z^■n5r v. Ruchman, Ibid. 316; Harris v. ^S/a/e, 
 30 Ind. 131 ; Chance v. Indianapolis Road Co., 32 Ind. 472 ; Wetherbee v. Harris, 
 103 Mass. 5(/5 ; Clackner v. ^Stoie, 33 Ind. 412. As to want of character for 
 chastity of a female witness, see Boles v. State, 46 Ala. 204 ; Ford v. Jones, 62 
 Barb. 484. The party against vrhom a witness has testified may show his bias : Bat- 
 dorffy. Farmers'' Bank, 11 P. F. Smith 179. It is not essential that the impeaching 
 witness should say that he vrould not believe the other on his oath : People v. 
 Tyler, 35 Cal. 553. A stranger sent by a party to the neighborhood of a witness 
 to learn his character, vyill not be permitted to testify as to the result of his in- 
 quiries : Reid V. Reid, 2 Green 101. As to how the credit of a witness may be 
 supported, see Hawser v. Comm., 1 P. F. Smith 332; People v. Sachett, 14 Mich. 
 320 ; State v. Parish, 22 Iowa 284 ; Queener v. Morrow, 1 Cald. 123. When a 
 witness swears to the general bad character of another witness, he may be asked 
 upon crosH-cxaiiiination to name the individuals whom he heard speak dis- 
 paragingly of the witness and what was said : State v. Perkins, 66 N. C. 126. 
 
 But evidence of the general good character of a witness is inadmissible when 
 his general character has not been impeached, although an attempt has been 
 made to prove facts inconsistent with his testimony, and to show that he had
 
 CHARACTER, HOW IMPEACHED. 238 
 
 that which is inconsistent with his present testimony ; for this pur- 
 pose a letter may be read in which he has given a different account 
 of the matter.*^ 
 
 ^ De Sailli/ v. Morgan, 2 Esp, C. 691. The action was by a schoolmaster, for 
 the board and education of the defendant's sons : the defence was, his neglect 
 of the scholars, &c. A witness for the plaintiff, the usher of the school, swore 
 that the treatment of the scholars was proper ; and, to contradict him, a letter 
 written by him to a former scholar, containing immoral matter, was read in evi- 
 dence. So a prisoner {ante. pp. 229, 230) or a prosecutor, in a criminal case, 
 may contradict a witness by means of his deposition before the magistrate : 
 Oldroyd's ease, R. & R. C. C. 88, see ante, p. 231, and ^os<, Vol. II. tit. Deposi- 
 tions. The courts of Scotland exclude such evidence, upon the principle that 
 the Avitness ought to deliver his testimony unfettered by previous declarations : 
 Hume's Com. on Crim. Law of Scotland, vol. ii. p. 367 ; Burnet's Treatise, p. 
 467. The policy of this rule is, to say the least, questionable ; if it i-elieve a 
 Avell-disposed witness from embai'rassment in stating the truth, it also relieves 
 a fraudulent one from the difficulty of explaining a statement made at a time 
 
 been privy to a fraud : Rogers v. Moore, 10 Conn. 13 ; Pratt v. Andrews, 4 Comst. 
 493 ; Braddee v. BrownfieJd, 9 Watts 124 ; Starks v. People, 5 Denio 106 ; People 
 V. Gag, 3 Seld. 378 ; Webster v. Mag, 9 Harris 274 ; Vernon v. Tucker, 30 Md. 
 456. If a question put to a witness is an imputation on his character, and is 
 calculated to degrade him before the jury, evidence as to his character is ad- 
 missible by the other party : State v. Cherrg, 63 N. C. 493 ; Clark v. Bond, 
 29 Ind. 555 ; except when he is a stranger : Mesnam v. Railroad, 20 Conn. 
 354. See Williamson v. Peel, 29 Iowa 458; Weir v. McGee, 25 Tex. (Suppl.) 
 20. And except when the witness and person injured in an indictment for 
 an attempt to commit a rape was deaf and dumb: State v. DeWolf, 8 Conn. 
 93 ; so generally in a case of rape : Turneg v. State, 8 S. & M. 104. An attempt 
 to impeach a witness, although unsuccessful, warrants the introduction of evi- 
 dence to support his character : Comm. v. Ingraham, 7 Gray 46. Mere contra- 
 diction among witnesses examined in court supplies no ground for admitting 
 evidence of general chai'acter: Pruitt v. Cox, 21 Ind. 15. Proof that a witness 
 had made material false statements which are relied on as proving him unworthy 
 of credit, Avill not authorize the party calling him to introduce evidence of his 
 general reputation for truth: Brown v. Mooers, 6 Gray 451. AVhen a Witness is 
 impeached only by proof of contradictory statements, or by counter proof of 
 pai'ticular facts, it cannot be supported by evidence of good character : Frost v. 
 McCargan, 29 Barb. 617; Chapman v. Cooleg, 12 Rich. (Law) 654; Vance v. 
 Vance, 2 Mete. (Ky.) 581 ; contra, Burrell v. State, 18 Tex. 713. A party has 
 a right to impeach the general character of a witness for his adversary, though 
 the testimony which such witness has given related solely to the general char- 
 acter of another witness : Starks v. People, 5 Denio 106 ; State v. Cherry, 63 N. 
 C. 493 ; State v. Moore, 25 Iowa 128. Upon the trial of an indictment for rape, 
 the character of the prosecutrix may be impeached by general evidence of her 
 reputation, but not by evidence of particular acts of unchastity : State v. White, 
 35 Mo. 500. Character for care, skill, truth, &c., though growing out of the 
 special acts of a party, cannot be established by proof of such acts, but by evi- 
 dence of general reputation : Frazier v. Pennsylvania Railroad Co. 2 Wright 104.
 
 238 REBUTTING THE TESTIMONY OF AVITNESSES. 
 
 It is a general rule, that whenever the credit of a witness is to be 
 impeached by proof of anything that he has said, or declared, or 
 done in relation to the cause, he is first to be asked, upon cross- 
 examination, whether he has said or declared, or done that which is 
 r*9^P1 i^itended to be proved. *For in every such case there are 
 
 two questions : first, whether the witness ever did the act or 
 used the expressions alleged; secondly, whether his having done so 
 impeaches his credit, or is capable of explanation.® It would be 
 manifestly unjust to receive the testimony of the adversary's 
 r^'^^Ol *witness to prove the fact, without also admitting the party's 
 
 witness to deny it ; and assuming the act to have been done, 
 or expression used, it would also be unjust to deny to the party, or 
 the witness who admits the act or expression, the best, or, it may be, 
 the only means of explanation.^^ 
 
 when he was under no temptation to deceive, and thereby excludes a consider- 
 able test of credit. An honest witness will disclose the truth in spite of any 
 prior declaration ; a dishonest one would certainly be encouraged by the exclu- 
 sion. It seems to be the wiser policy not to yield a test of truth, at a certain 
 sacrifice, for the sake of an advantage so doubtful. 
 
 « The Queen's .Case, 2 B. & B.-(6 E. C. L. R.) 300. The following questions 
 were proposed by the House of Lords to the judges : " If a witness in support of 
 a prosecution has been examined in chief, and has not been asked in cross-ex- 
 amination as to any declaration made by him, or as to acts done by him, to pro- 
 cure persons corruptly to give evidence in support of the prosecution, would it 
 be competent to the party accused to examine witnesses in his defence, for the 
 purpose of proving such declarations or acts, without first calling back the 
 witnesses to be examined or cross-examined as to the fact whether he ever made 
 such declarations or did such acts?" Again : " If a witness, called on the part 
 of a plaintiff or prosecutor, gives evidence against the defendant, and if, after 
 cross-examination, they discover that the witness so examined has corrupted or 
 endeavored to corrupt another person to give false testimony in such cause, 
 whether the defendant's counsel may not be permitted to give evidence of such 
 corrupt act of the witness, without calling him back?"' The judges held, that 
 the proposed proof could not, in either case, be adduced, without a previous 
 cross-examination of the witness as to the subject matter. 
 
 ' It is upon this principle that statements by a deceased attesting witness to a 
 document cannot be given in evidence upon proof of his signature. Thus, in 
 Stobert v. Dryden, 1 M. & W. 615, it was held that evidence of declarations by 
 a deceased attesting witness, whose signature was proved, that he had forged 
 or fraudulently altered the instrument, was inadmissible. 
 
 ' In general, a witness cannot be impeached by proving that at other times he 
 made contradictory statements, unless he has been interrogated as to such state- 
 ments: McKinney v. Neil, 1 McLean 540; Ever-ionv. Carpenter, 17 Wend. 419 ; 
 Franklin Bank v. Steam Navigation Co., 11 Gill & Johns. 28 ; Able v. Shields, 
 7 Mo. 120 ; Doe v. Reacjan, 5 Blackf. 217 ; Stale v. Marter, 2 Ala. 43 ; Weaver
 
 INQUIRY PREVIOUS TO CONTRADICTION. 240 
 
 If the witness admit the words, declaration, or act, proof on the 
 other side becomes unnecessary, and an opportunity is aftorded to 
 
 V. TrayJor, 5 Ibid. 5G4 ; Garrett v. State, 6 Mo. 1 ; McAIeer v. McMuUen, 2 Barr 
 32; Weinsorpjliii v. State, 7 Blackf. 286 ; Kay v. Fredrit/al, 3 Barr 221 ; Regnier 
 V. Cabot, 2 Gilin. 3-4; Downer v. Dana, 19 Vt. 338; Palmer v. Haight, 2 
 Barb. 210; Howell v. Reynolds, 12 Ala. 128; Clapp v. Wilson, 5 Denio 285; 
 Williams v. Turner, 7 Ga. 348 ; Johnson v. Kinsey, Ibid. 428 ; Moore v. Bettis^ 
 11 Humph. 67 ; Clementine v. -Stoie, 14 Mo. 112 ; King v. Wicks, 20 Otiio 87 : 
 Siyrague v. Caldwell, 12 Barb. 516 ; Carlisle v. Hunley, 15 Ala. 623 ; Nelson v. 
 Iverson, 17 Ibid. 216; Conrad v. Griffey, 16 How. 38 ; Stewart v. Chadwick, 8 
 Clarke 463 ; iiearrs v. Cojt>?e?/, 10 N. Y. 93 ; Fa^iloH v. National Ass. Co., 20 N. 
 Y. 32 ; iSto/tf V. Davis, 29 Mo. 391 ; Keichingman v. /Sto^e, 6 Wise. 426 ; Wright 
 V. Cumpsty, 5 Wright 102 ; Oice;t v. Rynerson, 17 Ind. 620 ; Scott v. King, 7 
 Minn. 494. A witness may be impeached by showing that he has made contra- 
 dictoi'y statements, although his denial of such statements is not positive, but 
 merely that he does not remember them : Nute v. Nute, 41 N. H. 60 ; Ray v. 
 Bell, 24 111. 444; Gregg y. Jamison, b P. F.Smith 468. The rule does not 
 however apply when the evidence to impeach the witness is his sworn deposi- 
 tion previously taken in the same cause : Williams v. Chapman, 7 Geo. 467. It 
 has been held however in some cases not to be matter of error to permit such 
 evidence, but to rest altogether in the sound discretion of the court: Hedge v. 
 Clapp, 22 Conn. 262 ; Kay v. Fredrigal, 3 Barr 221. 
 
 As to contradictory statements generally, see Camethy. Bayley, 14 Allen 532; 
 State V. Johnson, 12 Minn. 476 ; Ellsworth v. Potter, 41 Vt. 685 ; Hogan v. 
 Cregan, 6 Hob. 138 ; Winslow v. Neiolan, 45 111. 145 ; Noonan v. Ilsley, 22 Wise. 
 27 ; Hicks v. Stone, 13 Minn. 434 ; Robinson v. Petzer, 3 W, Va. 335 ; Patten v. 
 People, 18 Mich. 314 ; Foot v. Hankins, 98 Mass. 523 ; Von Glahn v. Von Glahn, 
 46 111. 134 ; State v. Kingsbury, 58 Me. 238 : Spaunhorst v. Link, 46 Mo. 197 ; 
 Coimn. V. Marrow, 3 Brewst. 402; Ordway v. Haynee, 50 N. Y. 159; Warren v. 
 Haight, 62 Barb. 490 ; Ayres v. Diiprey, 27 Tex. 593 ; Melan v. State, 24 Ark. 
 346 ; Knowles v. People, 15 Mich. 408 ; Paxton v. Dye^ 26 Ind. 393 ; McCabe v. 
 Brayton, 38 N. Y. 196. 
 
 That a proper foundation must be laid for such evidence by first calling the 
 attention of the witness to the intended contradiction, see Bradford v. Barday, 
 39 Ala. 33; Higgins v. Carlton, 28 Md. 115; Callanan v. Shaw, 24 Iowa 441 ; 
 State V. Hoyt, 13 Minn. 132 ; Matthis v. State, 33 Ga. 24 ; Williams v. Raiolins, 
 Ibid. 117; State v. Collins, 32 Iowa 36; Gibbs v. Linabury, 22 Mich. 479; 
 Gilbert v. Sage, 5 Lans. 287. If a party desires to cross-examine a witness as 
 to former statements by him deposed to, he must first read the witness's entire 
 deposition in evidence, otherwise it may be read at any time : Lightfoot v. 
 People, 16 Mich. 507. A witness's deposition is original evidence for the party 
 against whom he is sworn, and should be read as independent testimony, and 
 need not be called to his attention, unless it is desired to cross-examine him 
 concerning omissions or discrepancies : Lightfoot v. People, 16 Mich. 507. That 
 a witness impeached by contradictory statements out of court cannot be corrobo- 
 rated by showing other consistent statements, see U. S. v. Holmes, 1 ClifF. 98 ; 
 State V. Vincent, 24 Iowa 570 ; Boyd v. First Bank, 25 Ibid. 255 ; Butler v.
 
 240 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 the witness of giving such reasons, explanations, or exculpations of 
 his conduct, if any there be, as the circumstances may furnisli ; and 
 thus the whole matter is brought before the court at once, which is 
 the most convenient course.^ 
 
 If the witness deny the words, declaration, or act imputed to him, 
 then, if it be not a matter collateral to the cause, witnesses may be 
 called to contradict him.'' But it is not enough to ask a witness (in 
 order to found a contradiction) the general question Avhether he has 
 ever said so and so ; he must be asked as to the time, place, and 
 person involved in the supposed contradiction,' or some other circum- 
 stance^ sufficient to point out the particular occasion. So, if the 
 statement imputed to the witness be contained in any writing, it 
 must be put into his hand, and he must be asked if it is in his hand- 
 writing.J 
 
 If the witness neither directly admit nor deny the act or declara- 
 tion, as where he merely says that he does not recollect, or, as it 
 seems, gives any other indirect answer not amounting to an admis- 
 r*9J.n sion. it is competent for the *adversary to prove the affirma- 
 tive, for otherwise the witness might in every such case ex- 
 clude evidence of what he had done or said, by answering that he 
 did not remember. '^ 
 
 8 By the judges, in the Queen's case, 2 B. & B. (6 E. C. L. R.) 313. 
 
 " 2 B. & B. (6 E. C. L. R.) 313, and sujjra, Long v. Hitchcock, 9 C. & P. (38 
 E. C. L. R.) 619. 
 
 • Angus v. Smith, Moo. & M. (22 E. C. L. R.) 473 ; Andrews v. Askeg, 8 C. 
 & P. (34 E. C. L. R.) 7 ; Croivley v. Page, 7 C. & P. (32 E. C. L. R.) 789. 
 
 J Crowleg v. Page, 7 C. & P. 789. 
 
 ^ Croivley v. Page,' 7 C. & P. 789, cor. Parke, B., who observed, "If the 
 witness, on cross-examination, admits the conversation imputed to him, there 
 is no necessity for giving further evidence of it; but if he says he does not 
 recollect, that is not an admission, and you may give evidence on the other 
 side to prove that the witness did say what is imputed, always supposing the 
 
 Truslow, 55 Barb. 293 ; Comm. v. Carey, 2 Brewst. 404 ; but see contra, Dailcy 
 V. State, 28 Ind. 285. Where plaintiff's testimony is contradicted by defendant 
 though iiiipeiichmcnt may be disclaimed, testimony corroborative of the plain- 
 tiff is admissible: McAJeer v. Horsey, 35 Md. 439. The statement of a witness 
 put in writing at a time when he had no reason to misrepresent, is admissible in 
 rebuttal of evidence introduced to impeach him, and tending to show that he 
 had made statements inconsistent with his testimony : Stewart v. People, 23 
 Mich. 03. The limit to which a witness may be cross-examined on matters not 
 relevant to the issue, for the purpose of judging of his character and credit from 
 liis own voluntary admissions, rests in the sound discretion of the court: Wroe 
 V. Stale, 20 (Jiiio St. 400.
 
 EVIDENCE TO CONTRADICT. 241 
 
 If the witness decline to answer on account of the tendency of the 
 question to criminate him, the adverse party is still at liberty to ad- 
 duce the same proof.' ' And the possibility that the witness may on 
 that ground decline to answer affords no suiBcient reason for not 
 giving him the opportunity of answering with a view to explain the 
 circumstances and to exculpate himself.™ And it is of great impor- 
 tance that this opportunity should be thus afforded, not only for the 
 reasons thus suggested, but because such explanation, if not given in 
 the first instance, may be rendered impossible ; for a witness who 
 has been examined, and has no reason to suppose that his further at- 
 tendance is requisite, often departs the court, and may not be found 
 or brought back until the trial is at an end." 
 
 If indeed the witness's moral character be relevant to the issue, as 
 in an action for seduction where the seduced person is examined, 
 evidence that the witness has used expressions inconsistent with such 
 character may be given, without first asking the witness whether they 
 have *been used. But if the expression would be contra- r^i)4i)-\ 
 dictory to the evidence she has given in the cause, and evi- 
 dence of them is tendered simply by way of contradiction, they 
 cannot be proved without asking the witness the previous question, 
 although they are in themselves relevant to the issue. Thus where, 
 in an actipn for seduction of the plaintiff's daughter, she proved that 
 the defendant seduced her and was the father of her child, and 
 stated that she did not know A. B., evidence that she had said that 
 A. B. was her seducer and the father it was held could not be given 
 by way of contradicting her, without first asking her whether she 
 had said so.° 
 
 There is no distinction for these purposes between declarations 
 made by the witness, and acts done by him which relate to the cause ;p 
 
 statement to be relevant to the matter at issue. This has always been my 
 practice. If the rule were not so, you could never contradict a witness who said 
 he could not remember." Tindal, L. C. J., is stated to have ruled the contrary 
 in an earlier case : Pain v. Beeston, 1 M. & Rob. 20. And see Long v. Hitch- 
 cock, 9 C. & P. (38 E. C. L. R.) 619. 
 
 ' The Queen's case, 2 B. & B. (6 E. C. L. R.) 314. 
 
 " Ibid. 
 
 ° By the judges, in The Queen's case, 2 B. & B. (6 E. C. L. R.) 314. 
 
 " Carpenter v. fVall, 11 A. & E. (39 E. C. L. R.) 803. 
 
 p The Queen's case, 2 B. & B. (6 E. C. L. R.) 311. 
 
 ^ A witness is not bound to answer as to how he testified on a former trial, 
 relative to the matter in question, if he objects to the inquiry : Mitchell v. Hin- 
 man, 8 Wend. 667. See McCahe v. Brat/ton, 38 N. Y. 196. 
 15
 
 242 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 in the one case as well as the other, an opportunity must be afforded 
 the witness of explaining his conduct before evidence is adduced to 
 impeach his credit by proof of the fact. 
 
 If the adverse counsel has omitted to lay such a foundation by pre- 
 viously interrogating the witness on the subject of those declarations, 
 the court will of its own authority, call back the witness, in order 
 that the requisite previous questions may be put.'' And even al- 
 thouo-h the fact to be adduced in order to impeach the witness's 
 testimony be not discovered until after the conclusion of the cross- 
 examination, the rule still holds ; and evidence cannot be given for 
 the purpose of thus impeaching his testimony without previous ex- 
 amination of the witness, even although the witness should have 
 departed the court, and cannot be brought back after the discovery 
 has been made.'' 
 
 The witness having been asked on cross-examination, if he has not 
 
 r*oj.qi ^^^^ particular expressions, in order to lay *a foundation 
 
 for contradicting him ; upon his denial, the witness called to 
 
 prove that he did use them may be asked as to the particular words 
 
 read from the brief.^ 
 
 The evidence tendered by way of contradiction must be legitimate 
 evidence of the facts or statement ; thus, in order to impeach the 
 credit of a witness for a defendant upon an information for assault- 
 in<7 revenue oflBcers, by proving his previous testimony on an infor- 
 mation before two magistrates against the same defendant for having 
 smuggled goods in his possession, proof of the conviction containing 
 the testimony of the witness is insuflficient ; it is necessary to prove it 
 by the testimony of those who heard what was said.' The record of 
 conviction is conclusive for the purpose for which it is intended, that 
 is, to prove the condemnation ; but it is no evidence to prove the tes- 
 timony of the witnesses. 
 
 After proof in a criminal proceeding that the prosecutor has em- 
 ployed A. B., an agent, to procure and examine witnesses in support 
 of the charge, it is not competent to the defendant to examine a 
 witness to prove that A. B., who is not examined as a witness, had 
 offered a bribe to give evidence upon the trial, or to bring papers 
 with him belonging to the defendant ; for the mere employment of an 
 
 1 IJy the jud/^es, in The Queen's case, 2 B. & B. (G E. C. L. K.) 314. 
 ' T/ie Queen's case, 2 B. & B. (6 E. C. L. R.) 312. 
 
 • Edmonds v. Walter, 3 Stark, C. (3 E. C. L. 11.) 8 ; s. r., Hallett v. Cuusens, 
 2 M. it Rob. 238 ; ante, p. 171. 
 
 ' li. V. Iluwe, 1 Camp. 461, cor. Ld. Ellenborough.
 
 PARTY CONTRADICTING HIS OWN WITNESS. 243 
 
 agent for the purpose of procuring and examining Avitn esses is in itself 
 an innocent, and in many cases a necessary act, and it is not to be 
 presumed that the prosecutor directed tlic agent to use any unhiwful 
 means for the purpose ; neither can any legitimate inference or con- 
 clusion be drawn from this fact against the credit and veracity of the 
 witnesses Avho are examined ; for it is not to be presumed, in the absence 
 of all proof, that they were either parties to the illegal act or privy to 
 it, or to any act of the like nature." 
 
 *As upon an indictment for a conspiracy it is competent 
 to the prosecutor to prove, in the first instance, the existence *- '^ J 
 of a conspiracy, by general evidence, without proving participation by 
 the defendant,'' so it is competent to a defendant on a criminal charge, 
 first to prove a conspiracy to suborn witnesses for the destruction of 
 his defence, and afterwards to affect the prosecutor by proof of his 
 participation,'' provided proof of such a conspiracy would aiford a 
 legitimate ground of defence.^ 
 
 A party cannot discredit the testimony of his own witness, by gen- 
 eral evidence of incompetency ; for it would be unfair that he should 
 have the benefit of the testimony if favorable, and be able to reject it 
 if the contrary.'' ^ 
 
 Where, however, a party is under the necessity of calling a witness 
 for the purpose of satisfying the formal proof which the law re- 
 quires, he is not precluded from calling other witnesses who give con- 
 tradictory testimony.'' And even where a witness by surprise gives 
 evidence against the party who called him, that party will not be 
 
 " By the judges, in The Queen's case, 2 B. & B. (G E. C. L. R.) 302. 
 
 " Vol. II., tit. Conspiracy ; 2 B. & B. (6 E. C. L. R.) 303. 
 
 ^ The Queen's case, 2 B. & B. (6 E. C. L. B.) 303, 309. 
 
 '^ 2 B. & B. (6 E. C. L. R.) 311. Qucere, In what cases proof of a crime com- 
 mitted by a prosecutor in so conspiring can afford any legal defence to a defend- 
 ant? 
 
 y Per Buller, J., B. N, P. 297 ; see also Hastings' trial, 2 Hawk. c. 46, s. 196, 
 Curwood's edition : nor can he object to the admissibility of evidence, after hav- 
 ing allowed it to be given : Webb v. Smith, Ry. & M. (21 E. C. L. R.) 106. 
 
 ' As in the remarkable case of Mr. Joliffe's will. See tit. Will ; and see Alex- 
 ander V. Gibson, 2 Camp. 556. 
 
 — — — . 'tu . ■ — . 
 
 ^ Bean v. Hamilton, Tayl. IJ ; Sawrey v. Murrell et al., 2 Hayw. 397, aec. 
 Where one witness is contradicted by another who is called by the same party, 
 the first cannot be called to disprove what the second has testified : Rapp v. Le 
 Blanc et al., 1 Dall. 63. In North Carolina, it has been held, that in criminal 
 prosecutions the Attorney-General may discredit a witness called by him to tes- 
 tify on the part of the State : State v. Norris, 2 Ilayw. 420. M.
 
 244 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 precluded from proving bis case by otber witnesses; for it woubl be 
 contrary to justice tbat tbe treaebery of a witness sbould exclude 
 a party from establisbing tbe trutb by aid of otber testimony. And 
 tbeir testimony, wbicb would bave been admissible bad tbey been 
 called first, cannot in principle be excluded by tbe circumstance of 
 being called in a diflFerent order.^ Accordingly, wbere a plaintiff 
 bad called tbe servant of tbe defendant to prove a warranty of a 
 borse, upon wbicb tbe action was founded, and tbe witness denied 
 tbat be warranted tbe borse, tbe plaintiff was allowed to 
 L - J *prove tbe fact by means of otber witnesses.*^ A witness 
 
 ' Alexander v. Gibson, 1 Camp. 556 ; and see Richardson v. Allen, 2 Stark. C. 
 (3 E. C. L. R.) 334 ; Ewer v. Ambrose, 3 B. & C. (10 E. C. L. R.) 746 ; Fried- 
 lander v. The London Assurance Company, 4 B. & Ad. (24 E. C. L. R.) 193 ; 
 Wright V. Beckett, 1 M. & Rob. 429. 
 
 ^ A party cannot impeach the character of his own witness ; but he may prove 
 by others that the account given by him is incorrect : Lawrence v. Barker, 5 
 Wend. 301; Winston v. Moselei/,2 Stew. 137; Farr v. Thompson, Cheves 37; 
 Stockton V. Demiith, 7 Watts 39 ; Spencer v. White, 1 Ired. 236 ; Brown v. Os- 
 good, 25 Me. 505 ; Shelton v. Bampion, 1 Ired. 216 ; Bradford v. Bush, 10 Ala. 
 386 ; Wolfe v. Hanon, 1 Gill. 84 ; Chamberlain v. Sands, 27 Me. 458 ; Hunt v. 
 Fish, 4 Barb. S. C. 324; People v. Safford, 5 Denio 112; Keutgen v. Parks, 2 
 Sanf. S. C. 60 ; Thompson v. Rlanchard, 4 Comst. 303 ; Hice v. Cox, 12 Ired. 
 315 ; Swamscot Machine Co. v. Walker, 2 Post. 457 ; Hank v. Shier, 4 Rich. 233 ; 
 Buckhalter v. Edwards, 16 Ga. 593 ; Hall v. Houghton, 37 Me. 411 ; Scavy v. 
 Dearborn, 19 N. H. 351 ; Brown v. Wood, 19 Mo. 475; Brolley v. Lapham, 13 
 Gray 294; Champ v. Comm., 2 Met. (Ky.) 17 ; Comm. v. Lamberton, 2 Brews. 
 . 565 ; Bockwood v. Poundsfone, 38 111. 199 ; Thorn v. Moore, 21 Iowa 285. A 
 party calling a witness is not precluded from proving the truth of any particu- 
 lar fact by any other competent evidence in direct contradiction to what such 
 witness may have testified : Norioood v. Kenfeld, 30 Cal. 393 ; Bockwood v. 
 Poundstone, 38 111. 199; Thorn v. Moore, 21 Iowa 285; People v. Shuhan, 49 
 Barb. 217. But a party cannot prove inconsistent statements made by his own wit- 
 ness, which would not be admissible as independent evidence, and can have no 
 effect but to impair his credit : Adams v. Wheeler, 97 Mass. 67 ; Stearns v. Mer- 
 chants^ Bank, 3 P. F. Smith 490. A witness called back, after being dismissed 
 by the party who subpoenaed him, becomes the witness of the party calling 
 him back — who cannot afterwards impeach him : Baker v. Bell, 46 Ala. 216. 
 
 The rule that a party cannot discredit his own witness does not apply to those 
 cases where the party is under the necessity of calling the subscribing witnesses 
 to an instrument : Dennett v. Dow, 5 Shep. 19; Williams v. Walker, 2 Rich. Eq. 
 291 ; Shorey v. Hussey, 32 Me. 579. 
 
 ^ Jackson v. Vurick, 7 Cow. Rep. 239. The defendants introduced a devisee 
 to prove the execution of a bond to which his name appeared to be signed as a 
 witness. He was sworn generally as a witness in the cause and denied that he 
 had ever witnessed the bond. The plaintiff's counsel then insisted upon cross-
 
 PARTY CONTRADICTIXG II IS OWN WIT X ESS. 245 
 
 called by the plaintiff in an action on a policy of insurance against 
 fire, to prove the sale of goods to the plaintiff, swore on his examina- 
 tion in chief, that an invoice of the goods in his handwriting, was 
 made out by him after the fire, and that a letter, in his handwriting, 
 was in fact written in London, at the plaintiff's house, and by his 
 desire, and that the plaintiff's son and shopman had persuaded him to 
 say that ho had sent the goods. Lord Tenterden refused to allow the 
 son and shopman to be called again to negative the statement, but the 
 Court of K. B. granted a new trial, for the evidence was offered to 
 prove a material fact relevant to the issue, and it was held that, by 
 such evidence, a party might contradict his own witness.'' 
 
 Where a party being surprised by a statement of his own witness, 
 calls other witnesses to contradict him as to a particular fact, the whole 
 of the testimony of the contradicted witness is not therefore to be 
 repudiated. The whole is, it seems, open to the consideration of the 
 jury.<= 
 
 Doubt has been entertained on the question whether it be compe- 
 tent to a party to impeach the testimony of his own witness as to a 
 particular fact, by proof that on a former occasion he gave a different 
 account, and so to contradict him by his own statement. The resolu- 
 tion of this doubt depends, as it seems, on the consideration whether 
 in the abstract, such evidence is essential to justice, and if so, then 
 whether the party is to be excluded from such evidence, either by rea- 
 son of any objection in the nature of an estoppel, or of any collateral 
 inconvenience which might result. As a general proposition, it is es- 
 sential to ^justice that, in a case where the testimony of two 
 witnesses upon a question of fact is contradictory, every aid L -^ J 
 should be afforded to enable the jury to decide which of them is better 
 entitled to credit. And there can be no doubt that, in such a case, 
 the knowledge that one of those witnesses on a former occasion gave 
 an account of the matter inconsistent with his present testimony, is of 
 importance in order to enable them to form a correct conclusicni. It 
 is admitted on all hands that a party may, by such means, impeach 
 the credit of his adversary's witness ; and it is manifest that a third 
 
 '' Friedlander v. The London Assurance Company, 4 B. & Ad. (2-iE. C. L. R.) 
 193. 
 " Bradley y.Ricardo, 8 Bing. (21 E. C. L. R.) 57. 
 
 examining him in support of the right, to which the defendants objected on the 
 ground of his interest as a devisee, but it was held that having introduced him 
 as a witness they could not question either his competency or credibility. I.
 
 246 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 party, vested with the discretion of calling what witnesses he thought 
 fit for the ends of justice, would, in the exercise of that discretion, 
 submit the contradiction to the jury. It has indeed been decided, in 
 a criminal case, that it is competent to a judge to do this. Upon the 
 trial of an indictment for murder,* the judge, in his discretion, thought 
 fit to call as a witness the mother of the prisoner, whose name was in- 
 dorsed on the indictment, but who had not been called by the counsel 
 for the prosecution. Her evidence tended to acquit the prisoner, 
 and the judge, with a view to impeach her credit, referred to her 
 deposition ; and all the judges were of opinion that it Avas compe- 
 tent to the judge to do so ; and it is material to observe, that Lords 
 Ellenborough and Mansfield intimated that the prosecutor had the 
 same right. 
 
 If, as an abstract position, it be essential to the ends of truth that 
 such evidence should be submitted to a jury, it remains to consider, 
 in the first place, whether the party having called the witness is, as 
 it were, to be estopped from afterwards so impeaching his credit. It 
 is difiicult to come to this conclusion. A party who is prepared 
 with general evidence to show that a witness whom he calls is wholly 
 incompetent, acts unfairly and inconsistently ; for knowing his wit- 
 ness to be undeserving; of credit, he off"ers *liim to the jury 
 L " J as the witness of truth, and attempts to take an unfair ad- 
 vantage, by concealing or disclosing the real character of his wit- 
 ness, as best serves his purpose. But a party may contradict his own 
 witness in the mode in question, without incurring any such blame ; 
 he may have been purposely deceived by the witness, or, though not 
 under a legal necessity to call him, may be constrained by paucity 
 of evidence under the particular circumstances ; as where he cannot 
 easily prove some other fact except by the testimony of that witness, 
 or where the not calling him might afford a ground for strong ob- 
 servation against him. It may frequently happen in such cases that 
 a party may with great propriety call a witness as to a particular 
 fact, and yet impeach his testimony upon another material fact, of 
 which the witness, without intending to deceive, may have obtained 
 but an imperfect knowledge, or in respect of which his memory may 
 have erred. 
 
 It may happen that, although under no legal necessity to call a 
 particular witness, he may have none other than an adverse witness 
 
 " 11. V. Oldroijd, Hubs. & Ily. C. C. L. 88. So, per Lord Lyndhurst, C. B., 
 B. V. Maddux and others, Lancaster Sp. Ass. 1834 ; 1 Stark, on Evid. G06, 3d 
 edit.
 
 PARTY CONTRADICTING HIS OAVN WITNESS. 247 
 
 to prove a material fact. In such a case, it would frequently be at- 
 tended with great hardship to preclude the party from using such 
 means as he possessed, to shoAV that the witness admitted only such 
 facts as lie could not with safety deny, but misrepresented some 
 other material fact in which he could not be contradicted, and where 
 the testimony, though false, would not expose him to a prosecution 
 for perjury. It might happen, for instance, that in an action by two 
 partners, for goods sold and delivered, an adverse witness might be 
 the only one who could be called by the plaintiffs to prove the sale 
 and delivery ; a fraudulent witness as to this might be obliged to state 
 the truth, for fear of a prosecution for perjury, but still he might with 
 safety defeat the action by proof of payment to himself, as the agent 
 of the plaintiffs, or by other evidence which would not expose him to 
 a prosecution for perjury. In such, and many other cases which 
 
 might be put, it would be a harsh rule to exclude the party ^ 
 
 . . , r*2481 
 
 *from defeating the attempt by evidence of the witness's own L -- J 
 
 statements on the subject.^ 
 
 In the case of an adverse witness, it may frequently happen that 
 ■what he states in favor of the party who calls him may be regarded 
 as truth unwillingly w^rung from a reluctant witness, whilst his counter- 
 statements are open to great suspicion ; in all such cases, former de- 
 clarations by the witness are obviously of importance, with a view to 
 ascertain what part of his statement ought to be discredited, whilst 
 credit is given to the rest. The ordinary rules, as to the examination 
 of an adverse witness, supply an analogy in favor of the affirmative of 
 the present question, in all cases at least where the witness is appa- 
 rently an adverse one. Considering the admission of such evidence, 
 in its tendency to occasion collateral inconvenience, the argument that 
 a party ought not to be allowed to discredit his own witness, by gene- 
 ral evidence, seems to have little weight ; the contradiction proposed 
 being plainly distinguishable, as already observed, from any general 
 impeachment of the witness's character, by evidence showing*him to 
 be altogether unworthy of credit. It would, as was observed in the 
 case of Friedlander v. The London Assurance Company^^ be against 
 all justice that the whole of a man's testimony should be struck out 
 
 M B. & Ad. (24 E. C. L. R.) 193. By Parke, Taunton, and Patteson, Js. 
 
 ^ Although a party calling a witness shall not be allowed to impeach his 
 general character, yet he may show that he has told a different story at another 
 time: CoivdeuY. Reynolds^ 12 S. & R. 281 ; State \ . Karris ^ 1 Hay. 429; Webster 
 V. Lee, 5 Mass. 334 ; see also Broxon v. Bellows, 4 Pick. 179. See ante, p. 244, 
 note. G.
 
 248 REBUTTING THE TESTIMONY OF WITNESSES. 
 
 because a witness sets him riglit as to a single fact. A party may 
 ■with perfect propriety and consistency insist on the general compe- 
 tency of his witness, although he alleges that his testimony as to one 
 particular fact is erroneous. It may be urged that the practice may 
 open a door to collusion, and that a jury may mistake such a state- 
 ment for substantive evidence. The suspicion of collusion in such a 
 case is at most but weak, when it is considered how remote would be 
 the expectation of benefit to be derived from it. A party might, no 
 doubt, by such means, fraudulently introduce into the evidence a 
 r*24QT former statement by his own *witness in his favor ; but it 
 could not be of any use, unless the jury, against the direction 
 of the judge, should regard it as substantive evidence. The latter ob- 
 jection would operate with equal force to exclude such evidence, when 
 offered to impeach the adversary's witness. 
 
 It has been truly observed, that to allow the evidence of a party's 
 own witness to be impeached by other evidence to the contrary, is 
 not founded on any principle generally warranting such an impeach- 
 ment of credit by the party who calls the witness, for the witnesses 
 are not called directly to discredit the first witness ; the impeachment 
 of his discredit is incidental and consequential only. But although 
 the practice of contradicting by other evidence may supply no affirm- 
 ative argument for contradiction by the witness's own statement, it 
 is observable that such practice shows that the discrediting of the 
 witness is not a consequence which ought to exclude such evidence 
 as the justice of the case may otherwise require. The admission of 
 this kind of evidence seems to stand upon a substantive reasonable 
 foundation. For such a course is in the abstract essential to the 
 forming a correct estimate of the respective degrees of credit due to 
 conflicting witnesses ; and it is at most but doubtful whether the ex- 
 clusion of such evidence is warranted upon any collateral grounds of 
 convenience. In the case of Wright v. Beckett,^ Lord Denman having 
 received such evidence, the case was argued before Lord Denman and 
 Mr. Baron Bolland, as Judges of the Court of Common Pleas at Lan- 
 caster ; Lord Denman cited the case of Bernasconi v. Fairhrother^ in 
 which he had received similar evidence, and in his judgment on the 
 principal case he adhered to the same opinion.^ *Mr. Baron 
 *- *"'* -J Bolland was of opinion that the evidence was inadmissible, 
 
 ' 1 M. & Rob. 427. In the case of Ewer v. Ambrose, 3 B. & C. (10 E. C. L. R.) 
 740, cited below, Mr. J. Baylcy seemed to be of opinion (although it was unneces- 
 Bary to decide the point) that the answer in Chancery was inadmissible altogether. 
 Ilolroyd and Jiittledale, .Justices, expressed no opinion. 
 
 « And again in Dunn v. Aslelt, 2 M. & Rob. 122,
 
 PARTY CONTRADICTING HIS OWN WITNESS. 250 
 
 and Lord Denman stated that others of great weight and authority 
 agreed with Mr. Baron Bolland. And notwithstanding the reasons 
 above suggested, the prevailing opinion seems to be that a party who 
 calls a witness is not at liberty thus to impeach his credit and nullify 
 his testimony. In the more recent case of IToldsworth v. The Mayor 
 of Dartmouth,^ an action against the corporation on a bond, Avhich 
 they defended on the ground that it had been obtained by fraud, the 
 defendants called several persons, in order to establish this, who were 
 members of the corporation at the time the bond was given, and took 
 part in giving it. One of them on cross-examination stated that the 
 transaction was, as far as he knew, honest and correct. On re-ex- 
 amination he denied having told the defendants' attorney that it was 
 a shameful transaction, whereupon the defendants' counsel proposed 
 to call the attorney to prove that he had said so ; but this being ob- 
 jected to, Parke, B., rejected the evidence, observing, that he never 
 had any doubt that Bolland, B., was right in the case above cited, 
 and added, that a party has no right to put a witness into the box 
 as a witness of credit, and when he gives unfavorable evidence to call 
 evidence to contradict him, and that it made no difference whether 
 the fiict was elicited on the examination in chief or on cross-examina- 
 tion. In Allay v. HuUliings^ also, Wightman, J., rejected similar 
 evidence ; and in Wirdcr v. Butt} Erskine, J., ruled the same way, 
 observing that he had previously done so on one occasion with the 
 approbation of Patteson, J,, and that he had since talked with seve- 
 ral of the other judges, and found that in their opinion the above- 
 mentioned decision of Parke, B., was right. 
 
 It is observable, that the case of a witness thus giving evidence of 
 a fact tending to negative the claim made by *his party is v-^iyr^w 
 distinguishable from that of a witness who denies all know- 
 ledge of the fact, or simply fails in proving the fact which he is 
 called to prove. In the former, it may be essential to justice that 
 the jury, who might otherwise attribute too much credit to the testi- 
 mony of the witness, should be supplied with the means to enable 
 them to judge of the degree of credit which they ought to give; but 
 in the latter, the witness proving nothing, his credit is immaterial, 
 and what he stated upon a former occasion cannot be received as 
 substantive evidence.'' Upon the trial of Warren Hastings, the 
 judges delivered the following answer by the Lord Chief Baron, to a 
 
 •^ 2 M. & Rob. 153. ' 2 M. & Rob. 358. 
 
 J 2 M. & Rob. 357. 
 
 ■^ Eioer V. Amlrose, 3 B. & C. (10 E. C. L. R.) 74G.
 
 251 CONFIRMING THE TESTIMONY OP WITNESSES. 
 
 question proposed by the House of Lords : — *' That where a witness, 
 produced and examined in a criminal proceeding by the prosecutor, 
 disclaimed all knowledge of any matter so interrogated, it is not com- 
 petent for such prosecutor to pursue such examination by proposing a 
 question containing the particulars of an answer supposed to have 
 been made by such witness before a Committee of the House of Com- 
 mons, or in any other place, and by demanding of him whether the 
 particulars so suggested were not the answers he had so made." ' In 
 the case of Eiver v. Ambrose,^ a witness, called by the defendant, to 
 prove a partnership between himself and the defendant, having denied 
 the fact, an answer of the witness in Chancery was offered in evidence 
 by the defendant's counsel, and admitted. It was left to the jury to 
 find for the plaintiff or defendant, according to the credit given to 
 witness's answer in Chancery or in court. After a verdict for the 
 defendant, the court granted a new trial, on the ground that the an- 
 swer was not substantive evidence of the fact. 
 
 [*252] *y. The mode of confirming the testimony of ivifnesses. 
 
 A party cannot bring evidence to confirm the character of a wit- 
 ness before the credit of that witness has been impeached, either 
 upon cross-examination or by the testimony of other witnesses ;" but 
 if the character of a witness has been impeached, although upon 
 cross-examination only, evidence on the other side may be given 
 to support the character of the witness" by general evidence of good 
 conduct. 
 
 Where the character of a witness is impeached by general evidence 
 the party who calls him is at liberty to examine the witnesses as to 
 the grounds of their belief; and in all cases where the credit of a 
 
 ' Journ. D. P., Ap. 10, 1788. The witness had been asked by the managers 
 for the Commons whether he had not been examined before a Committee of the 
 House of Commons, and whether he had not before that committee given a par- 
 ticular answer to a particuhir (juestion. 
 
 '"AB. &C. (10 E. C. L. R.) 746. 
 
 ° Bishop of Durham v. Beaumont, 1 Camp. 207. But only for this purpose ; 
 he may not introduce new matter for other purposes than explaining the 
 motives or statements of the witnesses: li. v. >S'/. George, 9 C. & P. (38 E. C. L. 
 II.) 483 ; Queen's case, 2 B. & B. (6 E. C. L. R.) 297 ; Prince v. Samo, 7 Ad. & 
 E. (34 E. C. L. R.) r)27. 
 
 " li. V. Clarke, 2 Stark. C. (3 E. C. L. R.) 241. Where the prosecutrix, upon 
 an indictment for an attempt to commit a rape, had been cross-examined as to 
 her having been sent to the house of correction on charge of theft, evidence 
 of her subsequent good conduct was admitted in support of the prosecution : 
 Annesley V . Angleseu, 17 IIow. St. Tr. 1139.
 
 EVIDENCE TO CONFIRM. 252 
 
 witness has been attacked, whether by general evidence or by par- 
 ticular questions put upon cross-examination, it seems that the party 
 who called him is at liberty to support his testimony by general evi- 
 dence of ffood character. P So if the character of the attestinor wit- 
 ness to a deed or will be impeached on the ground of fraud, evidence 
 of his general good character is admissible,'^ whether he be living or 
 dead. But mere contrariety between the testimonies of adverse 
 witnesses, without any direct imputation of fraud on the part of 
 either, supplies no ground for admitting general evidence as to char- 
 acter.'' ' 
 
 *Where an attested document is disputed on the ground r*9rq-] 
 of fraud, and one of the attesting witnesses impeaches the 
 credit of the other attesting witness, general evidence may be 
 given of the good character of the latter, for the credit due to their 
 attestation is put in issue by the evidence on the other side.^ It 
 seems to be the better opinion, that a witness cannot be confirmed 
 by proof that he has given the same account before, even although it 
 has been proved that he has given a different account, in order to 
 impeach his veracity ; for his mere declaration of the fact is not evi- 
 dence. His having given a contrary account, although not upon 
 oath, necessarily impeaches either his veracity or his memory ;' but 
 his having asserted the same thing does not in general carry his 
 credibility further than, nor so far as, his oath." ^ But although 
 
 P See R. V. Clarke, 2 Stark. C. (3 E. C. L. R.) 241. 
 
 •J Doe dein. Walker v. Stephenson, 3 Esp. C. 284 ; Bishop of Durham v. Beau- 
 mont, 1 Camp. C. 210 ; Doe dem. Stephenson v. Walker, 4 Esp. C. 50 ; Provis v. 
 Reed, 5 Bing. (15 E. C. L. R.) 435. 
 
 "■ Bishoj) of Durham v. Beaumont, 1 Camp. 207. 
 
 » Doe dem. Walker v. Stephenson, 3 Esp. C. 284 ; 4 Esp. C. 50 ; 1 Camp. 210. 
 
 * But evidence of declarations by a deceased attesting witness who has not 
 been examined cannot be proved, even to show that he forged the document : 
 Stohart V. Dryden, 1 M. & W. 615 ; and therefore, of coui-se, witnesses cannot be 
 called to support his character on that score. 
 
 " B. N. P. 294. Buller, J., was clearly of opinion that such evidence was 
 not admissible to support an unimpeached witness, and doubted whether it was 
 
 ^ It seems now settled that whenever the character of a witness for truth is 
 attacked in any way, whether by cross-examination or by general evidence of 
 want of character for truth, or by proving statements made by him out of court 
 different from those sworn to, it is competent for the party calling him to give 
 general evidence of his good character: Paine v. Tilden, 20 Vt. 554; Hadjo v. 
 Gooden, 13 Ala. 718 ; Siveet v. Sherman, 21 Vt. 23, Contra, Stamper v. Griffin, 
 12Ga. 450, See mt^e, p, 238, note, 
 
 ^ When a witness testifies to a fact, and evidence is introduced to impeach his
 
 253 CONFIRM IXG THE TESTIMONY OF AVITNESSES. 
 
 such evidence be not generally admissible in confirmation of a wit- 
 ness, there may be many cases where under special circumstances it 
 possibly might be admissible ; as, for instance, in contradiction of 
 evidence tending to show that the account was a fabrication of late 
 date, and where consequently it becomes material to show that the 
 same account had been given before its ultimate effect and operation, 
 r*9^d.'l *^i'ising from a change of circumstances, could have been 
 foreseen. So, where an immediate account is given, or com- 
 plaint made, by an individual, of a personal injury committed against 
 him, the fact of making the complaint immediately, and before it is 
 likely that anything should have been contrived and devised for the 
 private advantage of the party, is sometimes admissible in evidence ; 
 as upon an indictment for a rape,'' or upon an action for a trespass 
 and assault committed on the wife.^ 
 
 Where a register of baptism stated the child to be seven years of 
 age at the time of baptism, it was held that the entry was no evidence 
 to prove the age, on an issue to try whether the party was of age 
 
 evidence in reply : R. v. Parker, 3 Doug. (26 E. C. L. R.) 242. In the case of 
 The Berkeley Peerage, 5th June 1811, Lord Redesdale held that, in general, 
 declarations made by a witness at another time could not be examined into for the 
 purpose of supporting his testimony ; and he referred to a case where Lord C. 
 J. Eyre rejected such evidence when offered for the prisoner in a case of perjury. 
 On the other hand, see Gilb. Ev. 135 ; Lutterely. Raynell, 1 Mod. 282; Friend's 
 case, 4 St. Tr. 613 ; Harrisoii's case, 12 How. St. Tr. 861. 
 
 " R. V. Clarke, 2 Stark. C. (3 E. C. L. R.) 242; Brazier's case, East's P. C. 
 443. Such evidence would appear to be properly admissible only as confirma- 
 tory evidence where the witness's credit is impeached : Reg. v. Megson, 9 C. & 
 P. (38 E. C. L. R.) 420 ; R. v. Guttridge, 9 C. & P. (38 E. C, L. R.) 471 ; R. v. 
 Walker, 2 M. & Rob. 212. It seldom, hoAvever, happens that, in such a case as 
 that of rape, an attempt is not made to impeach the credit of the witness. 
 
 " Thompson and his wife v. Trevanion, Skinn. 402 ; 6 East 193 ; and see Rex 
 V. Foster, 6 C. & P. (25 E. C. L. R.) 325. 
 
 credit, he may be corroborated by evidence of what he had testified or stated on 
 former occasions: Henderson v. Jones, 10 S. & R. 322; Cooke v. Curtis, 6 Har. 
 & Johns. 8(5 ; Coffin v. Anderson, 4 Blackf. 395 ; Beauchamp v. State, 6 Ibid. 
 300 ; State v. George, 8 Ired. 324 ; Dossett v. Miller, 3 Sneed 72. Where a wit- 
 ness is discredited by testimony against his general character, testimony to show 
 that he has formerly made the same statement as that to which he now testifies 
 is not admissible : Gihhs v. Linsley, 13 Vt. 208. Contra, State v. Dove, 10 Ired. 
 469 ; Pleasant v. State, 15 Ark. 624. Proof of declaration made by a witness 
 out of court, in corroboration of testimony given Ijy him on the trial of a cause 
 is, as an almost universal rule, inadmissible: Robb v. i/r/cAVey, 23 Wend. 50 ; 
 Dudley v. Bolles, 24 Ibid. 465 ; Smith v. Stickney, 17 Barb. 489 ; People v. Fin- 
 negan, 1 Parker C. R. 147. See ante, p. 238, note.
 
 WRITTEN EVIDENCE. 254 
 
 when he was arrested. But Bayley, J., expressed an opinion, that 
 if it couhl have been shown that the entry had been made upon the 
 representation of the mother, who was called as a witness for her 
 son, in order to prove his minority, the fact would have been admis- 
 sible to support her testimony upon its being impeached." 
 
 Unless there be some legislative provision to the contrary, it is no 
 objection that a witness called to support the appellant's case before 
 a court of appeal was not examined before the original court,'' even 
 although the party who obtained the conviction is not liable to double 
 costs on a reversal of the conviction. 
 
 *CHAPTER II. [*255] 
 
 WRITTEN EVIDENCE. 
 
 Written Instruments are, firsts of a public nature; secondly, of 
 a mixed nature, partly public and partly private ; tldrdly, of a pri- 
 vate nature. Public documents,* *again, are either judicial ; r*of;pn 
 or, secondly, not judicial ; and, with a view to their means 
 
 ^ Wihenv. Law, 3 Stark. C. (3 E. C. L. R.) 63. 
 
 y R. V. Commissioners of Appeals, 3 M. & S. 133 ; Breedon v. Gill, 1 Ld. Raym. 
 219; s. c, Salk. 555. 
 
 * The statute 1 & 2 Vict. c. 94, provides for the establishment of a record 
 office, and phices under the superintendence of the Master of the Rolls all the 
 older general records of the realm. Those specifically mentioned in the Act are 
 the records then deposited in the Tower, Chapter House of Westminster, Rolls 
 Chapel, Petty Bag Office, the OflSce of the Queen's Remembrancer, Augmenta- 
 tion Office, First Fruits and Tenths Office, Office of the Land Revenue and En- 
 rolments, or of the late Auditor of the Land Revenues, formerly in the Office 
 of Pells, and then in the custody of the Comptroller of the Exchequer ; the 
 records of the Court of Chancery, Exchequer, Admiralty, Queen's Bench, Com- 
 mon Pleas and Marshalsea, wherever then deposited, and all the records of the 
 lately abolished Courts of the Principality of Wales, Palatinates of Chester and 
 Durham, and Isle of Ely. The Queen is empowered in Council to place any 
 other records under the same superintendence ; and the Master of the Rolls is 
 to appoint persons to receive and take charge of the accumulating records of 
 these various Courts, from time to time after they are twenty years old, subject 
 to certain regulations. He is also to make rules for the admission of such 
 persons as ought to be admitted to the use of such records. The statute author- 
 izes him or the deputy keeper to allow copies to be made, and declares it to be 
 expedient " to allow the free use of any public records as far as stands with 
 their safety and integrity, and with the public policy of the realm." The
 
 256 DOCUMENTS OF A PUBLIC NATURE. 
 
 of proof ; they are either, first, of record; or, secondly, not of 
 record. We will proceed to consider them in this order, and to treat 
 not only of their admissibility and effect, but also of the mode in 
 which they are to be proved.^ 
 
 I. Documents of a Public Nature. 
 
 Before the admissibility and effects of public documents are con- 
 sidered, it will be convenient to consider generally the means by 
 which public documents are to be procured" and proved." 
 
 If the question be as to the existence or contents of a record in 
 the same court, the trial is by inspection of the record itself.*^ Where 
 the disputed record is one of another court, the tenor may be ob- 
 j-^j^---, tained by means of a '^certiorari and mittimus out of Chan- 
 cery ;* for it would be inconvenient to remove the original. 
 
 principal portion of these records are at present kept in the Stone Tower in 
 Westminster Hall, in the Rolls Chapel, in the Carlton Ride, and in the ToAver 
 of London. An order of the court, or a judge, is now necessary before issuing 
 a subpoena for the production of these documents, R. G. 6 C. B. (GO E. C. L. 
 R. ) 424; but the original can now rarely be necessary, as by s. 13 a certified 
 copy of any of them, sealed with the seal of the Record OflBce, is evidence 
 in every case in which the original record could have been received. See the 
 sections, j3os^, p. 262, note (/i). 
 
 ^ If the production of any document be injurious to the public interest, the 
 production or even the inspection of it will not be granted. The principle 
 which privileges persons from giving parol evidence equally applies to the pro- 
 duction of written instruments: Home v. Bentiuck, 2 B. & B. (6 E. C. L. R.) 
 130; Smith v. East India Company, 1 Phil. 50; Cooke v. Maxwell, 2 Stark. C. 
 (3 E. C. L. R.) 183; Wyatt v. Goi-e, Holt N. P. C. (3 E. C. L. R.) 299. In 
 E. V. Staffordshire, Justices, 6 Ad. & E. (33 E. C. L. R.) 99, the court con- 
 sidered that they could enforce by mandamus the production of any document 
 of a public nature in which any subject could prove himself to be interested, 
 and that any officer appointed to keep records ought to deem himself a trustee 
 for such a person, but the court would not interfere, unless the person ap- 
 plying had such an interest. There are, however, some records which are open 
 to all, thus the inspection and exemplification of the records of the Queen's 
 Courts are of right : 3 Co., preface, and stat. 40 Edw. III., there copied. 
 
 * See tit. Inspection and Public Documents. 
 
 ^ Nul tiel record was pleaded to the Composition Act : 2 Salk. 56G. Ilolt, C. 
 J., held that an exoinplification was necessary, altliough a copy printed by the 
 King's printer would be sufficient evidence before a jury: Anon., 2 Salk. 50G, 
 infra 231. The record or document itself must also, it has been thought, be 
 produced in case of forgery or perjury, sed quaere; see Forgery — Perjury — 
 Record. 
 
 " Piil V. Kni(/ht, 1 Saund. 98; llewson v. Broicn, 2 Burr. 1034; Luttrell v. 
 Lea, Cro. Car. 297. 
 
 I
 
 now PROVED — EXEMPLIFICATIONS. 257 
 
 Where the record of an inferior court is disputed in a superior 
 court, the record itself, where it is necessary, and in other cases the 
 tenor, may be removed by certiorari out of Chancery,*^ or out of the 
 Queen's Bench, if the proof is needed there. ^ In criminal cases, 
 where a prisoner pleads auterfois acquit, he may remove the record 
 by certiorari, if he be arraigned in the King's Bench.'' In other 
 cases, he may remove the tenor of the record of acquittal into Chan- 
 cery by certiorari, and either produce it in court witli his own hands, 
 [en poigne), or procure it to be sent to the justices sub pede sigilli.' 
 But the record in such case must be removed by writ, although the 
 justices may receive a record without writ, where it is to be proceeded 
 on for the King.-" 
 
 A record may be proved either first, by mere production, without 
 more ; or, secondly, by cop)y. 
 
 Copies of records are either exemplifications ; or, secondly, copies 
 made by the authorized officer ; or, thirdly, sworn copies. 
 
 First. Exemplifications. These are, exemplifications under the 
 great seal ; or under the seal of a particular court.'' The reason of 
 admitting a copy to be evidence in such cases, is the inconvenience 
 to the public of removing such documents, which may be wanted in 
 two places at the same time.' A record to be exemplified under the 
 great seal must either be a record of the Court *of Chan- rjco-cn 
 eery, which is the centre of all the courts, or must be re- ^ 
 moved thither by certiorari.'^ Nothing but records can be given in 
 evidence exemplified under the great seal, for these are presumed to 
 be preserved by the court free from erasure or interlineation, to 
 which private deeds which are in the hands of private persons, are 
 subject." Where any record is exemplified the Avhole must be exem- 
 plified, for the construction must be gathered from the whole taken 
 together. ° An exemplification under the broad seal is of itself a 
 
 ^ Butcher and Aldivortli' s case, Cro. Eliz. 821 ; Guilliam v. Hardy, 1 Ld. 
 Raym. 216. 
 
 8 2 Atk. 317 ; GuiUiam v. Hardy, 1 Ld. Raym. 216. 
 
 ^ 20 E. 2, Coron. 242; Stark. Crim. PI. 318. The usual practice is for the 
 clerk of assize or of the peace to make up the record, and produce it in court 
 without writ: see 1 Russ. on Crimes 829, 837. 
 
 • 2 Hale 242 ; 2 E. 3, 26, Coron. 150. 
 
 J 2 Hale 242 ; 8 E. 4, 18, B. Coron. 218. 
 
 * Gilb. Law of Ev. 12. i Bac. Ab. Ev. F. 
 ■" Bac. Ab. Ev. F. -, B. N. P. 226 ; 3 Ins. 173 ; 10 Co. 93, a. 
 
 ° B. N. P. 227 ; Bac. Ab. Ev. F. ; 3 Ins. 173 ; Gilb. Law of Ev. 12. 
 ° 3 Ins. 174 ; Gilb. Law of Ev. 17. But this rule is to be taken with some re- 
 striction 5 vide B. N. P. 227.
 
 268 DOCUMENTS OF A PUBLIC NATURE. 
 
 record of the greatest authenticity. p And where an exemplification 
 of a commission of the time of Elizabeth was produced from the 
 proper custody, and there was a slip of parchment at the foot, cor- 
 responding in size and form with the slips on which the great seal is 
 usually affixed, the court allowed it to be read as a complete exem- 
 plification. '^ 
 
 As to exemplifications under the seal of the court. The seals of 
 the King's courts of justice are of public credit, and are part of the 
 constitution of the courts, and supposed to be known to all ;' and 
 this, whether the court has existed from time beyond memory, or has 
 been recently created by Act of Parliament.^ But the seals of pri- 
 vate courts and persons are not receivable in evidence, unless proved 
 r*9'^Q1 *^ ^® ^^® seals of the respective courts or persons.' *In 
 general the exemplification of any record under the seal of 
 one of the King's courts of justice is sufficient." So is an exempli- 
 fication of a commission and return under the seal of the Exchequer/ 
 of a record of the great sessions in Wales, or in a county palatine, 
 under the seal of the court."^ Or of the proceedings of the ecclesi- 
 astical courts.^ So is an exemplification of the Pope's bull, under the 
 seal of a bishop.^ Or of the grant of administration with the will 
 annexed, under the seal of the archbishop.^ So the exemplification 
 
 p Gilb. Law of Ev. 14 ; Bac. Ab. Ev. F. ; Sid. 145 ; Hard. 118 ; Plowd. Com. 
 411. 
 
 1 Beverley v. Craven, 2 M. & Rob. 140. 
 
 "• Gilb. Law of Ev. 17, 20 ; 10 Co. 93, a. 
 
 ° Sid. 2, 146 ; Gilb. Law of Ev. 20. The courts are directed to take judicial 
 notice of the Seal of the Record Office, 1 & 2 Vict. c. 94, s. 13 ; and Common 
 Law Seal, and Seal of the Enrolment Office in Chancery, 12 & 13 Vict. c. 109 ; 
 and copies under those seals may, to a certain extent, be regarded as exemplifi- 
 cations. The sections are given at length, post, pp. 262, note [n], 263, notes 
 
 ' Gilb. Law of Ev. 20 ; and therefore, formerly, it seems to have been the prac- 
 tice to deliver an exemplification under the seal of a court to a jury, but not to 
 deliver a document under a private seal, because the authenticity of the latter 
 depended upon a collateral oath: Gilb. Law of Ev. 17, 18, 19. The common 
 seal of the city of London proves itself: Doe dem. Woodmas v. Mason, 1 Esp. 
 53 ; Olive v. Givyn, 2 Siderf. 145 ; s. c, Ilardres 118 ; sed vide Moises v. Thorn- 
 ton, 8 T. R. 303. 
 
 " 10 Co. 93, a. 
 
 ' Tooker v. The Duke of Beaufort, Say. 297. 
 
 " Ibid. ; Hard. 120. 
 
 » 1 Ford's MSS. 1G6. y Hard. 118. 
 
 • Kanjdon v. Cross, 8 G. 2, B. R. IL 108, although it merely recites the fact; 
 Shepherd v. Shor/hose, 1 Str. 412.
 
 HOW PROVED — EXEMPLIFICATIONS. 259 
 
 of the enrolment of a fine or recovery in Wales, or in the counties 
 palatine, under the appropriate judicial seal, is evidence of such fine 
 or recovery. "^ But the mere production of an exemplification under 
 the seal of an university is not evidence, without proof that a party 
 is entitled to his degree ;•" neither is the exemplification of the judg- 
 ment or decree of any foreign court admissible without proof of the 
 seal of the court.* And if a foreign court has an official seal, it 
 ought to be used for the purpose of authenticating its judgments; 
 and no copy by any officer of the court will be considered as of au- 
 thority in this country.*^ ^ 
 
 ' By the stat. 27 Eliz. c. 9, s. 8, they are of as great force as the record : Olive 
 V. Gimjn, 2 Sid. 145. 
 
 *' Henri/ v. Adei/, 3 East 221 ; vide infra, Judgments, proof of. 
 
 " Moises V. Thornton, 8 T. R. 303. 
 
 ** Black V. Lord Brayhrooke, 2 Stark. C. (3 E. C. L. R.) 7 ; and Aj^pleton v. 
 Lord Brayhrooke, Ibid. ; Anon., 9 Mod. 66. 
 
 ^ " Full faith and credit shall be given in each State to the public acts, records 
 and judicial proceedings of every other State. And the Congress may, by 
 general laws, prescribe the manner in vrhich such acts, records, and proceedings 
 shall be proved and the effect thereof;" Const. U. S., Art. IV., Sect. 1. The 
 Statute of the United States, passed May 26th 1790, provides, "that the records 
 and judicial proceedings of the courts of any State shall be proved or admitted in 
 any other court within the United States, by the attestation of the clerk and 
 the seal of the court annexed, if there be a seal, together with a certificate of 
 the judge, chief justice, or presiding magistrate, as the case may be, that the 
 said attestation is in due form. And the said records and judicial proceedings, 
 authenticated as aforesaid, shall have such faith and credit given to them in 
 every court within the United States, as they have by law or usage in the courts 
 of the State from whence the said records are or shall be taken." By the 
 second section of a supplementary statute, passed March 27th 1804, all the 
 provisions of the statute of 1790 are made to apply as well to the public acts, 
 records, judicial proceedings and courts of the respective territories of the 
 United States, and countries subject to the jurisdiction of the United States, as 
 to the public acts, &c., of the several States." Under this section of the Con- 
 stitution and the statute of 1790, the judgment of a State court has the same 
 credit, validity and effect in every other court in the United States which it has 
 in the State where it is pronounced : if in the courts of such State it has the 
 faith and credit of record evidence, it must have the same faith and credit in 
 every other court : Mills v. Duryee, 7 Cranch 481; Hamjjfon v. McConuell, 3 
 Wheat. 234; and note by the reporter. Whether a will of lands duly proved 
 and recorded in one State, so as to be evidence in the courts of that State, is 
 thereby rendered evidence in the courts of another State (provided the record 
 on its face shows that it possesses all the solemnities required by the laws of 
 the State where the land lies), under this section of the Constitution, Quaere, 
 Darby's Lessee v. Meyer, et al., 10 Wheat. 409. 
 
 The above provision in the Constitution has no effect upon judgments in 
 16
 
 260 DOCUMENTS OF A PUBLIC NATURE. 
 
 r*or'ni ^Secondly. Copies made by an authorized officer. Where 
 the law intrusts a particuhir officer with the making of 
 
 criminal prosecutions, but only on judgments in civil actions: such judgments 
 only were intended to be affected by this provision as can be carried into effect 
 by the aid of the courts of States in which they were not rendered — but 
 fugitives from justice found in one State cannot be directly nor collaterally 
 affected by any judgment against them in the State from which they have fled : 
 Comm. V. Green, 17 Mass. 546. 
 
 Under the statute of 1790, the Supreme Court of the United States have 
 decided that a copy certified by the clerk, without a certificate of the presiding 
 judge that the attestation is in due form, is not admissible in evidence in the 
 courts of another State or District, &c. : Drummoncl's Admrs. v. Magruder & 
 Co.''s Trustees, 9 Cranch 122. It had been previously held, in Pennsylvania, 
 that a copy not certified according to the statute was prima facie evidence, 
 though not conclusive : Baker et al. v. Field, 2 Yeates 532. And in North 
 Carolina, that the statute was only afiirmative, and did not abolish former 
 modes of authentication : Ellmore v. Mills, 1 Ilayw. 359. If the clerk of a 
 court certify at the foot of a paper purporting to be a record, " that the forego- 
 ing is truly taken from the record of the proceedings of his court," and if the 
 judge, chief justice, or presiding magistrate certify that such attestation of the 
 clerk is in due form of law, it is to be presumed that the paper so certified is a 
 full copy of all the proceedings in the case, and it is admissible in evidence : 
 Ferguson v. Harwood, 7 Cranch 408. AUter, if the writings do not purport to 
 be a record, but a mere transci-ipt of minutes from the docket of the court. 
 Ibid. A record of another State informally certified cannot be read, even on a 
 question of discharging on common bail : Craig v. Brown, 1 Pet. C. C. 35/. 
 And to make a record of a court of one State evidence in another, the attesta- 
 tion must be according to the form used in the State from which the record 
 comes ; and the only evidence of this fact is the certificate of the presiding 
 judge of that court: Ibid. See also Smith v. Blagge, 1 Johns. Cas. 238. A 
 certificate of a presiding judge, stating that the person whose name is signed 
 to the attestation of the record is clerk, and that the signature is his hand- 
 writing, is not in conformity with the requirements of the statute : Craig v. 
 Broicn, idn sup. Whenever the court whose record is certified has no seal, this 
 fact should appear, either in the certificate of the clerk or in that of the judge : 
 per Washington,. J. Ibid. See also ^Zstoji v. T'ci^or, 1 Ilayw. 395. The attestation 
 by the clerk, of the record of a judgment in another State, must have the seal 
 of the court annexed to it, and it is not sufficient that such seal is annexed to 
 the certificate of the judge: Ihmier v. Waddington, C. C. Oct. 1811, 3IS. 
 Wharton's Digest 224. A record of another State, attested by the clerk, with 
 the seal of the court annexed and the certificate of two judges, stating it to \>i 
 in due form, one of them stating himself to be the judge " that presided, and 
 one of the judges of the superior courts of law of said State," and the other 
 stating himself to be "the senior judge of the court of law of said State," was 
 held in Kentucky to be an insufficient authentication : Stephenson v. Bannister, 
 3 Bibb. 309. In those States where a justice of the peace holds a court of 
 record — where he is the sole justice and has no clerk — he may certify that he 
 is the presiding magistrate and clerk of the court, that there is no seal, and
 
 HOW PROVED — EXEMPLIFICATIONS. 260 
 
 copies, it iilso gives credit to them in evidence witliout further proof, 
 although a mere office copy by a person not so licensed is inad- 
 
 that the attestation is in the usual form •, and a copy of the record thus certified 
 would be admissible in evidence. But a copy of a record of a judgment ren- 
 dered by a justice in another State, authenticated only by his certificate, stating 
 that it is a true copy of the files and records remaining in his office, is not suf- 
 ficiently proved either at common law or according to the statute of the United 
 States : BisseJl v. Edwards^ 5 Day 363. A decree in chancery must ])e authen- 
 ticated according to the statute of 1790: Barbour \. TF?/<^s, 2 Marsh. 293. A 
 record of a court of the United States is not within the above-mentioned statute, 
 and, if under the seal of the court and certified by the clerk as a copy, it is 
 evidence in the State courts : Pepoon v. Jenkins, 2 Johns. Cas. 119. So, the 
 record of a court of a territory was held, in Kentucky, not to be within the pro- 
 vision of the Constitution and the statute, and the record of such court attested 
 by the clerk, with the seal of the court, together with the certificate of the 
 Governor and the great seal that the person attesting was clerk, and that his 
 attestation was in due form, was decided to be sufiBciently authenticated : 
 Ilaggin v. Squire, 2 Bibb. 334. See The statute of March 27th 1804, above 
 stated. M. 
 
 As to exemplification of foreign judgments it has been held that where the 
 court has no seal, the certificate of the clerk, accompanied with proof of his 
 handwriting, and that it is authenticated in the usual form, is suflicient : Packard 
 V. Hill, 7 Cow. 434 ; Torbert v. Wilson, 1 Stew. & Port, 200 ; Craig v. Brown, 
 Pet. C. C. 352 ; Allen v. Thaxter, 1 Blackf. 399 ; Butirich v. Allen, 8 Mass. 273. 
 The record of condemnation of a vessel in a foreign Court of Vice- Admiralty is 
 not evidence x>er se. The seal must be proved by a witness who knows it, or the 
 handwriting of the judge or clerk must be proved, or it must be shown that it 
 is an examined copy. The consular certificate is not suflicient to authenticate 
 it: Carlett v. Ins. Co., Paine 594. On the other hand it has been held in Con- 
 necticut that the record of a foreign Vice- Admiralty Court, purporting to be 
 certified by the deputy-registrar, under the seal of the court, is admissible with- 
 out any other proof of its authenticity : Thompson v. Steioart, 3 Conn. 171. A 
 judicial record, authenticated only by the great seal of a foreign sovereign state, 
 is evidence in our courts, although it is not accompanied by any certificate of 
 its being a copy of an original record, under the ofiicial signature of any officer 
 of the court : Gristvold v. Pitcairn, 2 Conn. 85. The proceedings of a A^ice- 
 Admiralty Court of a foreign nation were held to be sufficiently verified, by 
 proof of the handwriting of the judge and of the registrar of the court to a 
 certificate that the papers were a true copy from the records : Mumford v. Boivne, 
 Anth. 40. 
 
 The public seal of a State, affixed to the exemplification of a law, proves itself; 
 it is a matter of notoriety, and will be taken notice of, as part of the law of 
 nations acknowledged by all : Robinson v. Oilman, 7 Shep. 299. Courts of the 
 United States are domestic triljunals, whose proceedings State courts are bound 
 to respect and receive when exemplified under the seal of the court, which the 
 State courts are presumed to know : and the same rule applies to a United States 
 court established in a territory : Wernock v. Dearman, 7 Port. 513 ; Redman v. 
 Gould, 7 Blackf. 361 ; Williams v. Wilkes, 2 Harris 228. A record of a State
 
 260 DOCUMENTS OF A PUBLIC NATURE. 
 
 missible.® ' The chirograph of a fine is evidence of the fine itself, 
 because the chirographer is an officer appointed by the law to make 
 
 « Bac. Ab. Ev. F. ; B. N. P. 229. 
 
 court, certified by the clerk under its seal, beinjz; good evidence in another court 
 of the same State, is also admissible in the United States courts in that State : 
 Mewster v. Spalding, 6 McLean 24. 
 
 The best proofs of the proceedings of a foreign court, are the original records ; 
 but the testimony usually produced is either a sworn copy, by one who has com- 
 pared it with the original proceedings or an exemplified copy, certified by the 
 clerk and the presiding judge, and the seal of the court with the broad seal of 
 the province or kingdom of the appointment of the judge, with the proper cer- 
 tificate from the ofiice of appointment ; either of these will be sufficient : Spauld- 
 iiKj V. Vincent, 24 Vt. 501 ; Steioard v. Swanzy, 23 Miss. 502. When a copy of 
 a judgment recovered in Canada, was certified by the clerk, and purported to be 
 under the seal of the court, and a witness testified that he knew the clerk in 
 that capacity and helped him to compare the copy with the original and knew 
 it to be correct and knew the seal of the court, it was held sufiicient : Pickard v. 
 Bailet/, 6 Fost. 152. 
 
 As to exemplifications of judgments and other records under the Acts of 
 Congress it has been held sufficient that the presiding judge should certify that 
 the clerk was such at the date of the certificate : Merriweather v. Garven, 2 Port. 
 199; Johnson v. Howe, 2 Stew. 27. The certificate of the presiding judge is 
 sufficient evidence of the fact that he holds that position : Hutchinson v. Patrick, 
 3 Mo. 45. The Act of Congress, prescribing the mode of authenticating the 
 Acts of the several Legislatures, declares that such Acts shall be authenticated 
 by having the seal of their respective States affixed thereto. An Act certified 
 by the Secretary of State, to which is appended a certificate of the Governor 
 with the seal of the State affixed, certifying to the ofAcial character of the person 
 signing himself as Secretary, and that full faith and credit are to be given to 
 his official acts, is not a compliance with the Act of Congress : La Fayette Bank 
 V. Stone, 1 Scam. 424. Where one State court is abolished and its jurisdiction 
 
 ' Where copies are made evidence by statute, the mode of authentication must 
 be strictly pursued. The copy may be strictly accurate, yet if the certificate be 
 defective, it is of no avail : Smith v. United States, 5 Peters 292. A copy is 
 not admissible upon the certificate of the officer having the custody of the docu- 
 ment unless the law authorizes him to certify copies : Strother v. Christy, 2 Mo. 
 148 ; State v. Cake, 4 Zabriskie 674. If the law does not authorize an instru- 
 m-ent to be recorded, a certified copy will not be admissible : Caale v. Harrington, 
 7 liar. & Johns. 147 ; JIaile v. Palmer, 5 Mo. 403 ; Webster v. Harris, 16 Ohio 
 49iJ ; New York Dry Dock v. Hicks, 5 McLean 111. A deed proved in 1803 
 before the Mayor of Wilmington, Delaware, and certified under the corporate 
 seal of the city, is admissible in evidence without proof of the identity of the 
 impression: DuJJ'eyw The Congregation, 12 Wright 46. 
 
 The Acts of Congress, making transcripts from the departments at AYashingtnn 
 evidenci; against public debtors are valid, but the mode of authentication must 
 be strictly pursued : L'uilcd States v. Harrill, 1 McAU. C. C. 243,
 
 HOW PROVED EXEiMPLIFICATIONS. 260 
 
 out such copies; but the chirograph is not evidence of the levying 
 of a fine with proclamations, as the officer is not appointed to make 
 
 is transferred to another court, the clerk and presiding judge of the latter court 
 are coniyjetent to authenticate the records of the former in the manner pre- 
 scribed by the Act of Congress so as to make them admissible in evidence in the 
 courts of another State : Capen v. Emery, 5 Mete. 436. The oflBce copy of a 
 deed in another State is such a record as must be authenticated under the Act 
 of Congress, to make it evidence : Fennel v. Wei/ant, tl Ilarring. 502. A certifi- 
 cate of a clerk of the court of another State, under his private seal, if he certi- 
 fies that there is no seal of the court, and the presiding judge certifies that the 
 certificate is in due form, is good : Strode v. Churchill, 2 Litt. 75. A court is 
 not prohibited from receiving a record, although not certified according to the 
 Act of Congress, if proved as a foreign record : Lathrop v. Blake, 3 Barr 483 ; 
 Duvall V. Ellis, 13 Mo. 203 ; Settle v. Allison, 8 Ga. 201. Any State may pre- 
 scribe rules for the authentication of judicial records, in order to make them 
 admissible in evidence, provided such rules are not inconsistent with the Acts 
 of Congress on this subject, and a record is admissible which conforms to the 
 provisions of the Acts either of Congress or of the Legislature of the State in 
 which the record is sought to be used in evidence : Ordway v. Canroe, 4 Wis. 
 45; Kinijman \. Cowler, 103 Mass. 283. To let in the exemplification of the 
 probate of a will in the courts of Alabama, under the Act of Congress, no par- 
 ticular form of certificate is necessary. If the record is attested by the clerk, 
 and his attestation is certified by the presiding judge to be in due form, it is 
 immaterial how the attestation is made: White v. Stother, 11 Ala. 720. A 
 document attested by the clerk of a court with its seal, and the certificate of its 
 presiding judge and called an "exemplified copy" is competent evidence of the 
 judgment described in it under the Act of Congress, though it may not conform 
 to the mode of common law or in the State where the judgment was rendered : 
 Taylor v. Carpenter, 2 Woodb. & Min. 1. The certificate to the record of a 
 judgment rendered in one State to be used in another, by the first justice, is 
 not sufficient under the Act of Congress, unless it appear that the first justice 
 is the chief justice or presiding magistrate: Hudson v. Dailey, 13 Ala. 722; 
 Stewart v. Gray, 1 Hemps. 94. The certificate of a justice of the peace of a 
 sister State, that one who attests a copy of a deed recorded in that State is 
 clerk, is not such authentication as will authorize the reading of the copy in 
 evidence. It is necessary that the certificate be by the judge, chief justice or 
 presiding magistrate of the court: Waller v. Cralle, 9 B. Monr. 11. A copy 
 certified by a surrogate who acted as his own clerk, under his official seal, but 
 without his certificate that the attestation is in due form, held not admissible in 
 evidence: Catlin v. Uriderhill, 4 McLean 199; but with such attestation it is 
 sufficient: State v. Ilinchman, 3 Cas. 479. The record and judicial proceedings 
 of a county court in Virginia were certified by a person who styled himself pre- 
 siding magistrate of the county, held inadmissible, since it did not appear that 
 he was presiding magistrate of the court : Settle v. Allison, 8 Ga. 201. The cer- 
 tifipate of a judge to the exemplification of a record of another State, that the 
 attestation of a clerk is in due form is sufficient, though he may not certify 
 directly to the official character of the clerk : Linch v. McLemore, 15 Ala. 632. 
 The record is not duly authenticated without a certificate that the attestation
 
 260 DOCUMENTS OF A PUBLIC NATURE. 
 
 copies of them/ So a copy of a judgment made out, examined, 
 and indorsed by the clerk of the court, is not in itself evidence, for 
 
 f B. N. P. 229, 230 ; Bl. Com. 409, b ; Com. Dijr. Ev. A. (2) ; Chettle v. Pound, 
 Trin. Ass. 1700; Bac. Ab. Ev. F. ; Doe v. Bluck, 6 Taunt. (1 E. C. L. R.) 486. 
 But now,. by 11 & 12 Vict. c. 70, all fines are to be conclusively deemed to have 
 been levied with proclamations, unless in the case of lands held at the passage 
 of the Act under a title adverse to, or inconsistent with, the operation of the 
 fine, in which case it is incumbent on the party alleging the fine to have been 
 levied with proclamations to prove it. 
 
 of the clerk is in due form : Trigg v. Conivai/, 1 Hemps. 538 ; Wilburn v. Hall, 
 16 Mo. 426 ; Thompson v. Mam-ow, 1 Cal. 428 ; Shown v. Barr, 11 Ired. 296. 
 The form of the certificate attesting the judgment of a court of another State 
 depends on the usage of the State whence the record comes ; and if the judge 
 certifies that it is in due form, this will be sufiicient without setting out the 
 form : Began v. McCormick, 4 Harring. 435 ; Leicis v. Suilijf, 2 Green 186 ; 
 Schoonmaker v. Lloyd, 9 Rich. (Law) 173. Where the judge is described as 
 judge of the court, without saying that he is the judge or the sole judge, where 
 there is nothing on the face of the record produced to show that the court is 
 composed of more than one judge, the authentication is sufficient : Central Bank 
 V. Veasey, 14 Ark. 672. As to the judgments of justices of the peace it has 
 been decided that they are admissible if authenticated in the same manner as 
 foreign judgments ai*e authenticated: Mahurin v. Bickford, 6 N. H. 567; 
 Lawrence v. GauUney, 1 Cheves 7 ; Gay v. Lloyd, 1 Iowa 78. An exemplifica- 
 tion of the record of a judgment of a justice of the peace of a sister State, certi- 
 fied according to the Act of Congress, is competent evidence in Kentucky : Scott 
 v. Cleveland, 3 Menr. 62 ; Railroad Bank v. Evans, 32 Iowa 202. The mode of 
 authenticating the laws and records of the diS'eren':. States, prescribed by the 
 laws of the United States, does not exclude the common law method of proving 
 such documents: Karr v. Jackson, 28 Mo. 316 ; Goodwyn v. Goodwyn, 25 Ga. 
 203. A record certified under the seal of a court is evidence that it is a court 
 of record : Smith v. Redden, 5 Ilarring. 146. A substantial compliance with 
 the Act of Congress is sufficient in the certificate of the presiding judge to a 
 transcript of a judgment rendered by a court of another State: Thrasher v. 
 Ingram, 32 Ala. 645 ; Pratt v. King, 1 Oreg. 49. The decree of a Court of 
 Chancery is within the Constitution and Act of Congress respecting the mode of 
 authentication and the effect of the record in other States : Patrick v. Gihhs, 17 
 Tex. 275. The proceedings of the courts of probate are judicial proceedings 
 and may be authenticated under the Acts of Congress : House v. House, 16 Tex. 
 598 ; Washahaugh v. Entriken, 10 Cas. 74 ; Spencer v. Langdon, 21 111. 192. A 
 transcript of a justice's record, merely certified by him, is not evidence unless 
 made so by statute : Magee v. Scott, 8 Cas. 539. An attestation by a deputy 
 clerk is not sufficient within the Act of Congress : Morris v. Patchin, 24 N. Y. 
 394. Contra, Stcdmnn v. Patchin, 34 Barb. 218. A state may well enact that 
 less proof of pul)lic records than is required by Act of Congress shall be suffi- 
 cient: Parke v. Williams, 7 Cal. 247. 
 
 See further as to authentication of records, English v. Smith, 26 Ind. 445 ; 
 Winters v. Laird, 27 Tex. 616; Shenvood v. Houston, 41 Miss. 59 ; Eberts v.
 
 HOW PROVED — EXEMPLIFICATIONS. 260 
 
 lie is intrusted as to the keeping only of records, and not with the 
 making out copies of them.^ So where a deed enrolled is lost, a copy 
 of the enrolment by the clerk of the peace is not admissible in evi- 
 dence, for he is empowered merely to authenticate the deed itself by 
 enrolment, and not to make out copies of the enrolment.'' So an entry 
 in a book of the First Fruits Office, of the collation and admission of 
 a parson to a rectory, is secondary evidence of a return made by the 
 bishop to a writ issued by the Court of Exchequer to the bishop to 
 ascertain the value of the first fruits and twentieths, the bishop having 
 discharged a public duty in making the return, and faith being given 
 that he would perform that duty correctly.' The endorsement of the 
 date of enrolment *is conclusive evidence of the enrolment, ^ ^^ ^ 
 for it is part of the record.'' *- ^ 
 
 « Bac. Ab. Ev. F. ; B. N. P. 229. 
 
 ^ Bac. Ab. Ev. F. ; and see Appleton v. Lord Brai/brookc, 2 Stark. C. (3 E. C. 
 L. R.) 6 ; and Black v. Lord Brai/hrooke, 2 Stark. C. (3 E. C. L. R.) 7 ; B. N. 
 P. 229. 
 
 ' Lrish Society v. BisJioj) of Derry, 12 CI. & F. 641. 
 
 ^ The King in aid of Reed v. Hopper, 3 Price 495, in the case of an enrolment 
 of a barjfain and sale. So in cases of the enrolment of memorials of annuity 
 deeds : Garrick v. Williams, 3 Taunt. 340 ; and deeds under the Mortmain Acts ; 
 Doe V. Lloyd, 1 M. & G. (39 E. C. L. R.) 671 ; Rex v. Sewell, S Q. B. (55 E. C. 
 L. R.) 161. And, by 12 & 13 Vict. c. 109, s. 12, a certificate of enrolment ia 
 the Petty Bag Office, purporting to be sealed with the Chancery Common Law 
 seal, and by s. IS, a certificate of enrolment in the Enrolment Office, purporting 
 or appearing to be sealed with the seal of the Chancery Enrolment Office, shall 
 be admitted in evidence without further proof. These certificates are by those 
 
 Eberts, 5 P. F. Smith 110; Schuylkill Co. v. McCreary, S P.F.Smith 304; 
 Capling v. Herman, 17 Mich. 524; Carber v. Hopkins, 41 Yt. 250 ; Condit v. 
 BlackwaU, 4 Green 193 ; Robinson v. Simmons, 7 Philada. 127 ; Simons v. Cook, 
 29 Iowa 324 ; Coffee v. Neely, 2 Heisk. 304 ; Bennett v. Bennett, Deady 300. As 
 to what constitutes a record of a judgment, see State v. Logan, 33 Md. 1 ; Jay 
 V. East Livermore, 56 Me. 107 ; Buffington v. Cook, 39 Ala. 64 ; Knapp v. Abell, 
 10 Allen 4S5 ; McCormick v. Beaver, 22 Md. 187 ; Evans v. Reid, 2 Mich. N. 
 P. 212. 
 
 The Act of Congress as to authentication of records does not apply to records 
 of the United States Courts : Adams v. Way, 33 Conn. 419. The mode of 
 authenticating documents of the departments of the United States is governed 
 by the laws of the United States and by the practice of such departments and 
 not by the statute of the State: Oilman v. Riopelle, 18 Mich. 145. The certifi- 
 cate under seal of the department of foreign affairs of a foreign government 
 proves itself, and is a sufficient authentication of any public record of that 
 country : Stanglein v. State, 17 Ohio St. 453. An official certificate of what is 
 contained in a record, docket, deed or other instrument is not admissible unless 
 made so by statute : Jay v. East Livermore, 56 Me 107.
 
 261 DOCUMENTS OF A PUBLIC NATURE. 
 
 Office copies of judicial proceedings, other than those last mentioned, 
 that is, copies made by the known officers of the court, seem to be 
 admissible for particular purposes in the same, but not in another court.'' 
 With respect to causes depending in Chancery, it is said that office 
 copies are the very records of the court, and prove themselves, and 
 that no other copy can be produced therein ;^ but such copies are not 
 admissible in other courts."* 
 
 By various statutes also copies of records and other judicial pro- 
 ceedings are rendered admissible in evidence, if certified by certain 
 
 officers, and sealed with the seal of the *office or court. 
 r*0(3-9-| ' 
 
 L - -J rjijjg g^.^^ ^j^^ principal of these is the statute relating to the 
 
 custody of the public records, which, after directing that all the pub- 
 lic records, including among others those of the Courts of Chancery, 
 Exchequer, Admiralty, Queen's Bench, Common Pleas and Marshal- 
 sea, shall be placed under the care of the Master of the Rolls and a 
 deputy keeper of records, provides that copies of any of these certified 
 by the deputy keeper of the records, or one of the assistant record 
 keepers, and purporting to be sealed or stamped with the seal of the 
 Record Office, shall be admissible in evidence without further proof." 
 
 sections directed to be made on the instrument and to state the day of enrol- 
 ment, of which the certificate is also made evidence. A memorandum of en- 
 rolment of a lease, on the margin of the lease, signed "A. B., Auditor," is 
 sufficient proof that the lease has been enrolled with the auditor of the Duchy 
 of Lancaster : Kinnersly \. Orpe, 1 Doug. 56. 
 
 ^ In general, an office copy is admissible in evidence in the same court and in 
 the same cause, but not in a different cause, though in the same court: ^>er Lord 
 Mansfield, in Deym v. Fulford, Burr. 1177 ; Pitcher v. King, 1 Car. & K. (47 E. 
 C. L. Ft.) 655. Of course, when a writing is admitted under a judge's order to 
 be a true copy, it is admissible without further proof: Davies v. Bavies, 9 Car. 
 & P. (38 E. C. L. R.) 252. 
 
 ' Denn v. Fulford, Burr. 1177. 
 
 » 1 Bl. 289 ; Black v. Lord Brayhroohe, 2 Stark. C. (3 E. C. L. R.) 7 ; and it 
 is said to have been held at nisi prius that upon the trial of an issue out of 
 Chancery, office copies of depositions in Chancery in the same cause were not 
 receivable : Burnand v. Kerot, 1 C. & P. (12 E. C. L. R.) 578 ; but see the opinion 
 of Littlcdalc, J., in Uighfield v. Peake, M. & M. (22 E. C. L. R.) 109 ; Vol. H., 
 tit. Office Copy. 
 
 ° 1 (t 2 Vict. c. 94, s. 13. Though all the records then existing in the various 
 courts were transferred by this statute, yet the future were not at once ; but a 
 provision is contained in the Act (s. 3) by which the accumulating records of 
 the ago of twenty years may from time to time be brought under the custody of 
 the Master of the Rolls. The statute is more fully referred to, ante, p. 255, 
 where the particular records mentioned in it arc sj)Ocificd. The clauses which 
 provide for the making of copies are ss. 12 and 13, and they provide (s. 12), 
 " That the Master of the Rolls or Deputy Keeper of the Records may allow
 
 now PROVED — OFFICE COPY. 262 
 
 The recent statute," likewise, for the regulation of the Petty Bag 
 OflSce, and the practice of the Common Law side of the Court of 
 Chancery, and the Enrolment Office in Chancery provides that a 
 copy of any document, sealed with the Common *Law,P or 
 Enrolment Office Seal, shall be deemed a true copy,"' and be '- " -• 
 
 copies to be made of any records in the custody of the Master of the Rolls, at 
 the request and cost of any person desirous of procuring the same ; and any 
 copy so made shall be examined and certified as a true and authentic copy by 
 the Deputy Keeper of the Records or one of the Assistant. Record Keepers afore- 
 said, and shall be sealed or stamped with the seal of the Record Office, and de- 
 livered to the party for whose use it was made." And (s. 13) "that every copy 
 of a record in the custody of the Master of the Rolls, certified as aforesaid, and 
 purporting to be sealed or stamped with the seal of the Record Office shall be 
 received as evidence in all courts of justice, and before all legal tribunals, and 
 before either House of Parliament, or any Committee of either House, without 
 any further or other proof thereof, in every case in which the original record 
 could have been received there as evidence." 
 
 « 12 & 13 Vict. c. 109. 
 
 P Sect. 11 having directed that a Chancery Common Law seal, of which all 
 courts are to take judicial notice, shall be provided, s. 13 enacts that every office 
 copy issued shall be sealed with the said Chancery Common Law seal, and " That 
 every document sealed with such seal, and purporting to be a copy of any record, 
 or other document of any description, shall be deemed to be a true copy of such 
 record or other document, and shall, without further proof, be admissible and 
 admitted and received in evidence, as well before either House of Parliament, as 
 also before any committee thereof, and also by and before all Courts, Tribunals, 
 Judges, Justices, Officers, and other persons whomsoever, in like manner, and 
 to the same extent and effect as the original record, or other document would or 
 might be admissible, or admitted, or received, if tendered in evidence, as well 
 for the purpose of proving the contents of such record or other document, as 
 also proving such record or other document to be a record or document of, or 
 belonging to, the said Court of Chancery, but not further or otherwise." 
 
 •J Sect. 17 directs a seal or stamp to be provided, of which all courts shall take 
 judicial notice ; sect. 19 enacts, " that every document or writing, sealed or 
 stamped, or purporting or appearing to be sealed or stamped with the said seal 
 of the Chancery Enrolment Office, and purporting to be a copy of any enrolment 
 or other record, or of any other document or writing of any description whatso- 
 ever, including any drawings, maps, or plans thereunto annexed or endorsed 
 thereon, shall be deemed to be a true copy of such enrolment, record, document, 
 or writing, and of such drawing, map, or plan (if any) thereunto annexed, and 
 shall, without further proof, be admissible and admitted evidence, as well before 
 either House of Parliament, as also before any committee thereof ; and also by 
 and before all Courts, Tribunals, Judges, Justices, Officers, and other persons 
 whomsoever, in like manner and to the same extent and effect as the original 
 enrolment, record, document or writing, could or might be admissible or ad- 
 mitted in evidence, as well for the purpose of proving the contents of such en- 
 rolment, record, document, or writing, and the drawing, map, or plan (if any)
 
 264 DOCUMENTS OF A PUBLIC NATURE. 
 
 admissible in evidence to the same *extent and effect as the 
 L *" -I original. By the recent Bankrupt Act,"" any proceedings ap- 
 pearing to be scaled with the seal of the Bankruptcy Court or writ- 
 ings purporting to be copies and to be so sealed, are to be admitted 
 in all courts as evidence ; and a provision^ is also made that all fiats 
 and proceedings entered of record before 2 & 3 Will. IV., c. 114, or 
 purporting to have been sealed before the commencement of this 
 Act with the seal of the Court of Bankruptcy theretofore in use, or 
 a writing purporting to be a copy of any such document and to have 
 been so sealed, and in the case of any fiat and proceedings entered 
 of record before the passing of the last-mentioneil Act, with the cer- 
 tificate thereon purporting to be *signed by the person duly 
 L " J authorized to enter proceedings in bankruptcy, or by his 
 deputy, shall be received as evidence. By the Insolvent Debtor's 
 Act, also, "^ copies of the petition and other proceedings purporting to 
 
 thereunto annexed, as also proving such enrolment, record, document, or writing 
 to be an enrolment, record, document, or writing, of, or belonging to the said 
 Court of Chancery, and that such enrolment, record, document, or writing was 
 made, acknowledged, prepared, filed, or entered on the day and at the time 
 when the original record, document, or writing, shall purport to have been 
 made, acknowledged, prepared, filed, or entered." 
 
 ' 12 & 13 Vict. c. 106, s. 236, which provides, " That any fiat, petition for ad- 
 judication of bankruptcy, petition for arrangement between a debtor and his 
 creditors, assignment, appointment of assignees, certificate, deposition, or other 
 proceeding or order in bankruptcy, or under any such petition for arrangement, 
 appearing to be sealed with the seal of the court, or any writing purporting to 
 be a copy of any such document, and purporting to be so sealed, shall at all 
 times and on behalf of all persons, and whether for the purposes of this Act or 
 otherwise, be admitted in all courts whatever as evidence of such documents 
 respectively, and of such proceedings and orders having respectively taken 
 place, or been made, and been deemed respectively records of the court, without 
 further proof thereof; and no such document or copy shall be I'eceivable in 
 evidence unless the same appear to be so sealed, except where otherwise pro- 
 vided by this Act." 
 
 ' Section 236. " Provided always, that all fiats and proceedings under the 
 same which may have been entered of record before the passing of the Act (2 & 
 3 Will. IV. c. 114), or purporting to have been sealed before 11th October 1849, 
 Avith the seal of the Court of Bankruptcy theretofore in use, or a writing pur- 
 porting to be a copy of any such document, and purporting to have been so 
 sealed, shall and may, upon the production thereof, aud in the case of any fiat 
 or proceedings so entered of record before the passing of the last-mentioned Act, 
 with the certificate thereon purporting to be signed by the person duly author- 
 ized to enter proceedings in bankruptcy, or his deputy, be received as evidence 
 of the same and of the same having been duly entered of record, and of such 
 proceedings having respectively taken place.'' 
 
 1 & 2 Vict. c. 110, 8. 105. "That a copy of such petition, vesting order,
 
 HOW PROVED — EXAMINED COPY. 265 
 
 be certified by tbe officer in whose custody they are, or his deputy, 
 and to be sealed with the seal of the court, are rendered sufficient 
 evidence; and a somewhat similar provision is contained in the County 
 Court Act." 
 
 Thirdly, Sworn copies. Not only records, but all pul)lic docu- 
 ments Avhich cannot be removed from one place to another, may be 
 proved by means of a copy proved on oath to have been examined 
 with the original. This is to be considered as a deviation from the 
 general rule, that the best evidence must always bo produced for the 
 sake of public convenience. All judicial proceedings, whether in 
 British or foreign courts,^ may be proved by means *of a r^jcQpp-i 
 sworn copy, although it be not an office copy ;^ and whether 
 
 schedule, order of adjudication, and other orders and proceedings purporting 
 to be signed by the officer in whose custody the same shall be, or his deputy, 
 certifying the same to be a true copy of such petition, vesting order, schedule, 
 order of adjudication, or other proceeding, and purporting to be sealed with 
 the seal of the court, shall at all times be admitted in all courts and places 
 whatever as sufficient evidence of the same, without any proof whatever given 
 of the same." 
 
 " 9 & 10 A^ict. c. 95, s. Ill, enacts, "That the clerk of every court holden 
 under this Act shall cause a note of all plaints and summonses, and all orders, 
 and of all judgments and executions, and returns thereto, and of all fines, and 
 of all other proceedings of the court, to be fairly entered from time to time in 
 a book belonging to the court, which shall be kept at the office of the court ; 
 and such entries in the said book, or a copy thereof, bearing the seal of the 
 court, and purporting to be signed and certified as a true copy by the clerk of 
 the court, shall at all times be admitted in all courts and places whatsoever as 
 evidence of such entries, and of the proceeding referred to by such entry or 
 entries, and of the regularity of such proceeding without any further proof." 
 
 ^ Apiileton V. Lord Brai/brooke, 2 Stark. C. (3 E. C. L. R.) 6 ; 6 M. & S. 34. 
 In an action on judgments recovered in the Supreme Court of Jamaica, the 
 plaintiff produced merely paper writings, purporting to be copies of the judg- 
 ments, subscribed " true copy," and signed "i^. S., clerk," to which were 
 annexed several certificates : first, of F. S. under his hand and seal of office, 
 certifying that the above were true copies of the original judgments of record 
 in his office, and that the same were still unsatisfied ; secondly, a certificate of 
 R. i?., described as secretary and notary public, certifying that F. S. was an 
 accredited clerk, &c. ; the third from the Governor-General, under the seal of 
 the island, certifying that Ii. E. was secretary, &c., and that to all acts, &c., 
 signed by him, credit was to be given ; the evidence was held to be insufficient, 
 without proving the copies to have been actually examined ; the seal of the 
 island not being affixed to the copy to give it the force of an exemplification, 
 but only to authenticate the person cei'tifying to be a person to whom credit was 
 to be given. So, where the copy was proved to be in the handwriting of one 
 who acted and signed official documents for the principal clerk : Ibid. 
 
 "1)671)1 v. Ftdford, Burr. 1177 ; Hard. 119 ; Gilb. Law of Ev. 9 ; 16 East 334.
 
 266 DOCUMENTS OF A PUBLIC NATURE. 
 
 the court be a court of record*" or otherwise. The proceedings by- 
 English bill in Chancery are not records, and may themselves be given 
 in evidence/ or may be proved by means of examined copies.^ ' 
 
 But upon an indictment for perjury, assigned upon an answer in 
 Chancery, the original must, it has been said, be produced.* And 
 also, where a voluntary aflSdavit has been made by a party, ^ which 
 has no relation to a proceeding in a court of justice, to make it evi- 
 dence against the party the original must be produced. Where a 
 r*9g-T"] ^^'^^ *remains in Chancery, by order of the Court, a copy of 
 it is evidence, because it becomes a roll of the court.^ 
 
 The copy must be one of a complete record, for until it becomes a 
 permanent record it is transferable, and the reason for admitting a 
 copy to be evidence does not apply. '' Consequently a sworn copy of 
 a judgment in paper, although signed by the Master, upon which 
 judgment might be taken out, is not admissible.' And to prove an 
 
 So a grant of a peerage may be proved by an examined copy of the record of 
 the patent : Lord Lanesb o rough'' s case, 1 H. of L. Ca. 510. 
 
 ^ B. N. P. 226. 
 
 = Bac. Ab. Ev. F. 
 
 ■^Bac. Ab. Ev. F. ; 3 Mod. 116. 
 
 * Ibid. ; B. N. P. 238 ; for the identity of the defendant must be proved ; but 
 qucere, whether this might not be established by admissions or otherwise : see 
 James's case, Carth. 220 ; Hanwell v. Lyon, 1 B. & A. 182 ; Ry. & M. (21 E. C. L. 
 R.) 1G9 ; Mortimer v. McCallan, 6 M. & W. 58 ; Saijer v. Glossop, 2 Ex. 409. 
 
 f Chambers v. Robinson, Trin. 12 Geo. 1 ; B. N. P. 238 ; Bac. Ab. Ev. F. 
 Examined copies of other affidavits are admissible : James's case, Carth. 220 ; Doe 
 V. Wood, Mann. Index 122 ; Rees v. Bowen, M'L. & Y. 383 ; and ante, p. 227 ; note 
 {f) : unless, perhaps, on an indictment for perjury: Crook y. Bowling,^ Dougl. 
 (26 E. C. L. R.) 75. 
 
 « Keb. 117 ; Gilb. Law of Ev. 67 ; Bac. Ev. F. ; and see 12 CI. & F. 304. 
 
 " Bac. Ab. Ev. F. ; B. N. P. 228 ; Ayrey v. Davenport, 2 N. R. 474 ; Coohe v. 
 Maxioell, 2 Stark. (3 E. C. L. R.) 183 ; R. v. Thring, 5 Car. & P. (24 E. C. L. 
 R.) 507. 
 
 ' Ibid. So, to prove a bill of indictment to have been found, it is necessai-y 
 to show a record with a complete caption : R. v. Smith, 8 B. & C. (15 E. C. L. 
 R.) 341. And see Porter v. Cooper, 1 C. M. & R. 388. 
 
 ^ The proceedings in civil suits before justices of the peace are within the 
 rule of public books and sworn copies are evidence: Welsh v. Crawford, 14 S. 
 & R. 440 ; Hibbs v. Blair, 2 Harris 413 ; Hughes v. Jones, 2 Md. Ch. 178 ; Jones 
 V. Davis, 2 Ala. 730. The Bank of the State of Alabama and its branches, being 
 public property, its books are public writings ; and where the books themselves 
 would be evidence if produced, sworn copies ai'e admissible in evidence : Craio- 
 ford V. Branch Bank, 8 Ala. 79. Sworn copies of written instruments are 
 admissililo when tiie originals are beyond the jurisdiction of the court : St. Jjouis 
 Perpetual Life Lis. Co. v. Cohen, 9 Mo. 421.
 
 EXAMINED COPY — WHEN ADMISSIBLE. 2G7 
 
 interlocutory and final judgment and execution, an examined copy 
 of tlie roll carried in must be proved; it is not sufficient to produce 
 entries in the prothonotary's book, and the inquisition, with the 
 prothonotary's allocatur.'' And, in general, a mere minute book of 
 proceedings from which the record is subsequently to be made up is 
 not admissible in evidence.^ But where the record cannot regularly 
 have been completed, as where the postea cannot have been entered 
 by reason of a motion for a new trial," or where the object is merely 
 to prove that some judicial proceeding has been had, without respect 
 to any ulterior step in that proceeding, the record need not be made 
 up." It is otherwise as to a matter which occurred before the 
 *same court sitting under the same commission. Upon the r^cyno-i 
 trial of Ilorne Tooke the minutes of the court were pro- 
 duced to prove the acquittal of Hardy. ° 
 
 The copy should be of the whole record, or of so much at least 
 as concerns the matter in question, p and moreover it should be an 
 exact copy, and therefore if it contains abbreviations, and the original 
 be written in words at length, it will be inadmissible.'' 
 
 A book published by authority in a foreign country, as a regular 
 copy of treaties concluded by the State, is not evidence without 
 proving it to have been compared with the original archives.'' 
 
 " Godefroij v. Jay, 3 C. & P. (14 E. C. L. R.) 192. The day-book kept at 
 the office is not evidence of the date of signing judgment : Lee v. Meecock, 5 Esp. 
 C. 177. 
 
 • B. V. Smith, 8 B. & C. (15 E. C. L. R.) 341 ; Porter v. Cooj^er, 6 C. & P. (25 E. 
 C. L. R.) 354 ; B. V. BeUam;/, Ry. & M. (21 E. C. L. R.) 171 ; B. v. Birch, 3 Q. B. 
 (43 E. C. L. R.) 431. Thus the minute-book of the Court of Quarter Sessions is 
 not evidence as to the trial of an indictment : B. v. Thring, 5 Car. & P. (24 E. C. 
 L. R.) 507. Or an appeal : B. v. Ward, 6 C. & P. (25 E. C. L. R.) 366 ; unless in 
 the latter case it be the only record : B. v. Yeoveley, 8 Ad. & E. (35 E. C. L. R.) 
 806 ; Beg. v. Mortloch, 7 Q. B. (53 E. C. L. R.) 459. 
 
 ■" B. V. Browne, 3 C. & P. ( 14 E. C. L. R.) 572. 
 
 " B. N. P. 234 ; Pitton v. Walter, 1 Str. 162 ; Fisher v. Kitchingman, Willes 367 ; 
 i?.v. Gordon, Car. & M. (41 E. C. L. R.) 410. 
 
 • How. St. Tr. vol. XXV., p. 446. 
 
 P Tri. P. P. 166 ; 3 Inst. 173 •, Beg. v. Baijnes, 1 Car. & K. (47 E. C. L. R.) 
 70 ; Bloicer v. HoUis, 1 C. & M. 396 ; Leake v. Marquis of Westmeath, 2 M. & 
 Rob. 397 ; Attwood v. Taylor, 1 M. & G. (39 E. C. L. R.) 289. 
 
 1 Beg. v. Christian, Car. & M. (41 E. C. L. R.) 388. Upon an indictment for 
 perjury on an affidavit in a cause in Chancery, a witness produced an office copy 
 of the bill, containing abbreviations, for instance, "possd of cnsidble perl este," 
 and all the dates in figures ; he stated that it was a copy, but that in the original 
 the words and figures were at length. Lord Denman, C. J., held that the copy 
 in this respect being unlike the original was not admissible. 
 
 ■^ Bichardson v. Anderson, 1 Camp. 65.
 
 268 DOCUMENTS OF A PUBLIC NATURE, 
 
 It is a general rule, that whenever the original is of a public na- 
 ture, a SAvorn copy is admissible in evidence. And that whenever the 
 thing to be proved would require no collateral proof upon its produc- 
 tion, it is provable by a copy/ But where the document when pro- 
 duced would require support from collateral proof, it has been thought 
 that a copy of it is not admissible, and therefore, where an applica- 
 tion was made that an original examination before a magistrate might 
 be produced upon the trial of a cause, it was ordered because the ex- 
 amination, if produced, would not in itself be evidence, without proof 
 of the handwriting of the party.' But an examined copy of an entry 
 r^HQAQi ^"^ ^^® bank books, and evidence by a person who *had in- 
 spected the entry in them, that the handwriting of the ac- 
 ceptance of a transfer of stock was that of the defendant, was held 
 admissible to prove the acceptance of the stock by him, and his iden- 
 tity, without producing the books themselves." 
 
 Sworn copies of the following documents have been received in 
 evidence : — 
 
 Of a bank-note filed at the Bank."" 
 
 Of the transfer- books of the Bank of England.^ 
 
 Of transfer-books of the East India Company.* 
 
 Of the books of the City of London.* 
 
 Of court-rolls under the hand of the steward.^ 
 
 Of the journals of both Houses of Parliament." 
 
 Of the minute-books of the House of Lords. "^ 
 
 * Hoe V. Nathorp, Lord Raym. 154; Lynch v. ClerJce, 3 Salk. 153. 
 
 ' B. V. Smith, Str. 126. 
 
 " Mortimer v. McCallan, 6 M. & W. 58 ; and see a7ite, pp. 227, note (/) 266, 
 note (e). 
 
 ^ Man V. Cary, 3 Salk. 155 ; 12 Vin. Ab. 97, 99. 
 
 y Mortimer v. McCallan, 6 M. & W. 58. Before this case it had been held that 
 to prove a transfer of stock, a copy from the Bank books must be produced ; the 
 testimony of the broker who effected the transfer is insufficient : Breton v. Cope, 
 Executor, Peake 43 ; and see Douglas 593, n. Such copies, when proved to be 
 so, are direct evidence ; and the court, for the sake of example, would not allow 
 the ])Ooks themselves to be read : Marsh v. Collnet, 2 Esp. 665. 
 
 ■' Doug. 593 : 1 Str. 646. 
 
 " 2 Str. 954, 955. 
 
 i- Doug. 593, 163 ; 12 Mod. 24. 
 
 ' Doug. 593 ; Cowp. 17 ; Str. 126. By 8 & 9 Vict. c. 113, s. 3, copies of the 
 .TourriiilN, purporting to be printed by the printers to the Queen or either House 
 of I'iirliiiiiieiit, are made evidence. 
 
 •^ 1 Cowp. 17.
 
 EXAMINED COPY — WHEN ADMISSIBLE. 269 
 
 Of an .agreement, from a book in the Bodleian Library, from which 
 books cannot be removed.'^ 
 
 Of the probate of a will relating to personalty/ 
 
 Of a parish-register.^ 
 
 Of a poll-book at an election.'' 
 
 *0f a public book in one of the universities.' 
 
 Of entries in the council-book in the Secretary of State's Office.'' 
 
 Of the enrolment-book, in which leases are registered in the Bish- 
 opric of Durham.' 
 
 Of documents in the nature of muniments of title of the Crown, 
 deposited in the office of her Majesty's Land Revenue Records and 
 Enrolments, pursuant to stat. 2 Will. IV., c. 1." 
 
 Of books of the commissioners of excise." 
 
 Of books of assessments by the commissioners of land tax." 
 
 Although, for the sake of public convenience, the copy of a public 
 document is admitted in evidence as an original, a copy of a copy is 
 of no Aveight whatsoever, since it is one step farther removed from the 
 original. P 
 
 The copy must be proved by one who swears that he has compared 
 it with the original,'' taken from the proper place of deposit. It was 
 formerly thought sufficient for this purpose, either that the witness 
 should have read the *copy whilst another read the original, r^^^D'^-i-i 
 or vice versd,^ for it would not be presumed that a person wil- 
 
 • Bun. 101 ; Downes v. Moreman, 2 Gwill. G59 ; this, however, was considered 
 as an indulgence under the particular cii'cumstances of the case. 
 
 ' 3 Salk. 154 ; Eoe v. Kathorp, 1 Ld. Raym. 154. 
 « Man v. Cart/, 3 Salk. 154; Str. 1073, s. c. 
 ^ Mead v. Eobinson, Willes 4:'2. 
 
 • Semble, 8 T. R. 307. " Ei/re v. Palsgrave, 2 Camp. 606. 
 
 • Humble V. Hunt, Holt's C. (3 E. C. L. R.) 601. 
 
 " Doe dem. King William IV. v. Roberts, 13 M. & W. 520. And a copy of an 
 extract from a rental of the Earl of Leicester, who once held the lands in ques- 
 tion, whose estate had come back to the Crown, found there, was held evidence 
 for the same reason ; the original being evidence as charging the receiver : Ibid. 
 So, expired leases of Crown lands, deposited in the same oiEce, which ought to 
 have been enrolled under 10 Geo. IV. c. 50, s. 63, may be proved (as evidencing 
 acts of ownership) by examined copies, although they may not have been en- 
 rolled under that act: Ibid. And semble, when original documuents would be 
 evidence, and they are kept among the muniments of the Crown as evidence of 
 its title, copies are evidence : Ibid. 
 
 ° Fuller V. Fotch, Carth. 346. » Bex v. Kiufj, 2 T. R. 234. 
 
 PGilb. Law of Ev. 7. 
 
 1 Bac. Ab. Ev. F. ; Str. 401 ; 2 Keb. 31, 546 ; 3 Keb. 1,2; 10 Co. 92. 
 
 •• Eol/ V. Dart, 2 Taunt. 52 ; McXeel v. Perchard, 1 Esp. 264 ; Gi/les v. Hill, 1
 
 271 DOCUMENTS OF A PUBLIC NATURE. 
 
 fully misread the record; but it has since been determined that it is not 
 sufficient that the witness holds the copy "while another reads the 
 record : there must be a change of hands, or the witness must himself 
 read the copy with the original.' It is not necessary, however, that 
 the record should have been read by the officer of the court.' Before 
 a document can be read as a copy of a record, it must be proved that 
 the original either came out of the hands of the officer of the court, 
 or from the proper place of depositing the records of the court of 
 which it purports to be a record, and the contents of the document 
 itself cannot be referred to in support of such proof." The copy 
 must be an accurate and complete one, not having abbreviations where 
 words were written at length in the original.'' 
 
 And now, in order to facilitate the proof of such document, it has 
 been enacted'' " that whenever any book or other document is of such 
 a public nature as to be admissible in evidence on its mere production 
 from the proper custody, and no statute exists which renders its con- 
 tents provable by means of a copy, any copy thereof or extract there- 
 from shall be admissible as evidence in any court, (fee, provided it be 
 proved to be an examined copy or extract, or provided it purport to 
 be signed and certified as a true copy or extract, by the officer to 
 whose custody the original is intrusted." 
 
 *A copy is never admissible where the original is produced." 
 A copy of an entry in a customal, being offered in evidence 
 against a corporation, was rejected on production of the original. 
 
 Where a record has been lost, a copy may in some instances be read 
 in evidence without proof upon oath that it is a true copy.'' But to 
 warrant such evidence the document must be according to the rule of 
 the civil law, vetustate temporis autjudiciard cognitione roborata} A 
 
 Camb. 471 ; Fi/son v. Kemp, 6 Car. & P. (25 E.G. L. R.) 72 ; Beid v. Margison, 
 1 Camp. 469. 
 
 ' Slane Peerage, 5 CI. & F. 24; Harrison v. Borwell, 10 Sim. 380. 
 
 ' Gyles V. Hill, 1 Camp. 471. 
 
 ° Adamthwaitev. Singe, 1 Stark. C. (2 E. C. L. R.) 183; 4 Camp. 372. In 
 order to prove a copy of an Irish judgment, it was held to be insufficient for the 
 witness to prove that he compared tiie writini!; with a record produced to him in 
 a room over the Four Courts, where the records of the superior courts are kept, 
 without seeinff whence the record was taken, or knowing the person who pro- 
 duced it to be an officer of the court. 
 
 =" IL v. Christian, Car. & M. (41 E. C. L. R.) 3SS ; ante, p. 2t)8, note [q). 
 
 y 14 He 15 Vict. c. 69, h. 14. 
 
 ^ 21 How. St. Tr. app. 650. 
 
 ' Vent. 257 ; 1 .Mo'l. 117; Salk. 2^5 ; Gill). Law of Ev. 18 ; Bac. Ab. Ev. F. 
 
 " Dig. 292; 1 Mod. 117.
 
 THEIR ADMISSIBILITY. 272 
 
 copy of a decree of tithes has, it is said, been often given in evidence 
 in London, without proving it to be a true copy, the original having 
 been lost,''' So the exemplification of a recovery of lands in ancient 
 demesne, where the original was lost, and possession had gone a long 
 time with the recovery, was admitted in evidence.*^ So, where it ap- 
 peared that the records of the city of Bristol has been burned, an ex- 
 emplification of a recovery, under the town seal, of houses in Bristol, 
 was allowed in evidence.® 
 
 Upon an ejectment brought for the recovery of a rectory, to which 
 a recusant had presented, it was held that the record of the convic- 
 tion, Avhich had been burned, might be proved by estreats in the 
 Exchequer,'^ and an inquisition of the recusant's lands returned there. 
 So, in trover, if i^, fieri facias or venditioni exponas belost,^ ' other evi- 
 dence is admissible ; so, also, if a recovery in ancient demense be 
 lost, and the roll cannot be found, it may be proved by the oral tes- 
 timony of witnesses, where the possession has gone accordingly.'' So, 
 where the question of appropriation is in issue, and the king's license 
 has been lost, the issue maybe proved by other evidence.'^ 
 
 "= 1 Vent. 257 ; B. N. P. 228 ; see Macdourjal v. Young. Ry. & M. (21 E. C. L. 
 R.) r.92. 
 ^ Green v. Proude, 1 Mod. 117. 
 « 1 Mod. 117. 
 
 f Knight v. Dauler, Hard. 323 ; 2 Salk. 285. 
 eHard. 323 ; Al. 18. 
 
 " 1 Vent. 257; 2 Str. 1129 ; 2 Burr. 1072 ; 4 T. R. 514. 
 » Hard. 323. 
 
 ' So parol evidence was admitted to prove that a ca. sa. issued, and that the 
 sheriff returned on it "not found," the ca. sa. having been lost or mislaid : 
 Jones V. Walker, 2 Ilayw. 291 ; see also Buchanan v. Moore, 10 S. & R. 275. G. 
 
 And where a fieri facias after it had been levied, was accidentally burnt in 
 the officer's house, the court directed a new one to be made out and delivered to 
 him : White v. Lovejoy, 3 Johns. 448 ; see 1 Phill. Ev. 310, 3d ed. M. 
 
 Parol evidence of contents of record is not admissible unless it is shown to be 
 lost or destroyed: Mason v. Bull, 26 Ark. 164. 
 
 "^ Facts which may have become matter of record, may be proved by secondary 
 evidence, after proof is given of the existence and loss of the record : Dillingham 
 V. Snow et al., 5 Mass. 547 ; Stockhridge v. West Stockbridge. 1 1 Ibid. 4uO ; 
 see Swift's Ev. 3. The certificate of a clerk, stating the loss of the record, is 
 not evidence of the fact ; it must be proved by oath : Wilcox v. Ray, 1 Hayw. 
 410; Robinson v. Clifford, 2 Wash. C. C. Rep. 1. But where it is proved that 
 most of the records of a clerk's office have been burnt, and the rest niutihited, 
 the journals of the court are evidence: Cook v. Wood, 1 McCord 139 ; Lyons v. 
 Gregory, 3 lien. & Munf. 237, s. p. Parol evidence, however, of a conviction 
 for felony was held inadmissible, in New York, though it was proved that the 
 17
 
 273 DOCUMENTS OF A PUBLIC NATURE. 
 
 r^oi'-'l Documents of a public nature, and of public authority, *are 
 generally admissible in evidence, although their authenticity 
 be not confirmed by the usual and ordinary tests of truth, the obli- 
 gation of an oath, and the power of cross-examining the parties on 
 Avhose authority the truth of the document depends.' The extraordi- 
 nary degree of confidence thus reposed in such documents is founded 
 pi'incipally upon the circumstance that they have been made by au- 
 thorized and accredited agents appointed for the purpose, and also 
 partly on the publicity of the subject-matter to which they relate, 
 and in some instances upon their antiquity. Where particular facts 
 are inquired into, and recorded for the benefit of the public, those 
 who are empowered to act in making such investigations and memo- 
 rials, are in fact the agents of all the individuals who compose the 
 public; and every member of the community may be supposed to 
 be privy to the investigation. On the ground, therefore, of the credit 
 due to the agents so empowered, and of the public nature of the facts 
 themselves, such documents are entitled to an extraordinary degree of 
 confidence, and it is not requisite that they should be confirmed and 
 sanctioned by the ordinary tests of truth ; in addition to this, it 
 would not only be difficult, but often utterly impossible, to prove 
 facts of a public nature by means of actual witnesses examined upon 
 oath ; such, for example, as the passing of particular Acts of Par- 
 liament, and the making of public surveys.'' 
 
 ^ See further as to the principles on which public documents are admissible, 
 supra, p. 260 ; and see Slane Peerage, 5 CI. & F. 24, post. 
 
 clerk's office had been burnt, it being the duty of the District Attorney to 
 deliver a transcript into the Court of Exchequer, which duty he must be pre- 
 sumed to have performed, and thus have furnished evidence of a higher order : 
 Eilts V. Calvin, 14 Johns. 682. M. 
 
 The docliet entry, upon proof of the loss of the other part of the record, is 
 competent evidence ; and parol proof may be given of the contents of that part 
 of the record which is lost: Harvey v. Thomas, 10 Watts 63 ; see also Heirs of 
 Ludlow V. Johnston, 3 Ohio 569. G. 
 
 As to oral evidence of lost records see Ravenscroft v. Gibony, 2 Mo. 1 ; Lud- 
 low V. Johnston, 3 Ilamm. 553 ; Prudeii v. Alden, 23 Pick. 184 ; Fowler v. More, 
 4 Piiie 570; Nelson v. Boynlon, 3 Mete. 396; Bogart v. Green, S Mo. 115; 
 Stewart v. Conner, 9 Ala. 803; Baskin v. Seechrist, 6 Barr 154; Eakin v. 
 Vance, 10 S. & M. 549; Wing v. Abbott, 28 Me. 367 ; Weatherhead v. Basker- 
 ville,\\ How. (S. C.) 329; James v. Biscoe, 5 Engl. 184; Small v. Peniiell, 31 Me. 
 207 ; Millard v. Hall, 24 Ala. 209. The testimony of the clerk of the court 
 cannot be admitted to invalidate the transcript of a record of a judgment: 
 Shirley v. Fearne, 33 Miss. 053. When a record has become illegible by lapse 
 of time the testimony of a wiiness who had examined and copied it while 
 legible, is properly received to supply the defect : Little v. Doicning, 37 N. 
 11. 355.
 
 ACT OF PARLIAMENT — HOW PROVED. 273 
 
 The Acts of the Legislature are records Avritten on the rolls of Par- 
 liament/ and arc of the highest and most *absolute proof. r^^.^'^A-t 
 They are either jniblic or 2Jrwate. They are public or gen- 
 eral Acts when they do or may concern the kingdom at large; they 
 are private when they relate to a particular class of men, or to 
 individuals only : of the former class, are Acts which concern the 
 king, all lords of manors, all officers generall}'-, all spiritual persons, 
 or all traders ;™ of the latter, are Acts relating to the nobility only, 
 or to particular persons or traders." 
 
 A public statute requires no proof; and where it is necessary to 
 
 refer to one, a copy is not given in evidence, but merely referred to, 
 
 to refresh the memory." Where the statute is not in express terms 
 
 made a public statute, it is still such with a view to evidence, if it be 
 
 of a general and public nature, affecting all the king's subjects ; and 
 
 therefore it has been ruled at the assizes, that a statute, *as ^ 
 
 • r*2751 
 
 far as it related to a public highway, was to be considered L " J 
 
 as a public statute.^ So it is said that the Act of Bedford Levels, 
 
 ' See Preface to the Statutes, bj the Commissioner of Public Records. The 
 original of a public Act of Parliament is kept in the Parliament Office, and a 
 transcript is engrossed and certified by a clerk in Parliament, and deposited in 
 the Rolls Chapel. Private Acts are filed and labelled, and remain with th* 
 clerk of the Parliament, and are not (except a few of the earlier) deposited in 
 the Rolls Chapel. 
 
 ™ It seems that the distinction between public and private Acts was not ob- 
 served before the reign of Richard III. See Preface to the new edition of the 
 Statutes at Large. 
 
 " If a private statute be recognized by a public Act, it will afterwards be 
 judicially noticed: as the Statute of Bailbonds, 23 Hen. VI. c. 9; which, at all 
 events, became a public statute when the statute 4 & 5 Anne, c. 16, s. 20, made 
 the bonds assignable : Samuel v. Eoans, 2 T. R. 575 ; Saxby v. Kirkus, B. N. 
 P. 224. 
 
 • A printed statute book is evidence of a public statute, not as an authentic 
 copy of the record itself, but as hints of that which is supposed to be lodged in 
 every man's mind already: Gilb. Law of Ev. 12; 2 Salk. 566; 10 Mod. 126; 
 Bac. Ab., Ev. F. The Courts take notice of all public Acts of Parliament, and 
 it is unnecessary to plead them ; but private Acts must be specially pleaded : B. 
 N. P. 222; Lvrd Bernard v. Saul, 1 Str. 498 ; Ld. Raym. 119. But although 
 public Acts will be noticed by the court when the party insists upon them by 
 way of defence, the defence itself, when depending on a statute, must be pleaded 
 as much as when it depends upon the common law. As, where a defendant 
 means to insist upon the Statute of Limitations, or the Statute of Usury, unless 
 he plead the defence specially, he cannot rely upon the Statute of Limitations 
 in evidence under the plea'of non assumpsit, nor upon the Statute of Usury upon 
 the plea of 7iciw est factum to a declaration upon a bond : B. N. P. 224. See tit. 
 Debt — Deed — Penal Action — Usury — Highway. 
 
 " By Chambre, J., MS. C. But a private act that concerned Rochester Bridge,
 
 275 DOCUMENTS OF A PUBLIC NATURE. 
 
 and that for rebuilding Tiverton, are, from the publicity of the 
 subject-matter, public Acts; and that a printed copy might, before 
 the recent Act, have been given in evidence.'' On the other hand, 
 an Act of Parliament, private in its nature, is not made admissible in 
 evidence against strangers, by the general clause declaring it a public 
 Act, "which only applies to the forms of pleading and evidence, and 
 does not vary the general nature aud operation of the Act."" A 
 power in an Act *to levy tolls on all persons using a particu- 
 L ~ J lar navigation, is not sufficient to make it a public Act as 
 against strangers.^ 
 
 By the statute of 41 Geo. HI., c. 90, s. 9, copies of the statutes of 
 Great Britain and Ireland prior to the Union, printed by the printer 
 duly authorized, shall be received (mutually) as conclusive evidence 
 of the several statutes in the courts of either kingdom. 
 
 Where an Act of Parliament is of a private nature, proof of it is 
 
 though printed by Rastell, was not allowed in evidence : Law of Ev. 82, pi. 14, 
 tarn qu. A private inclosure Act, containing clauses respecting public high- 
 ways, is, as to those clauses, a public Act: B. v. Utterby, Lincoln Spring Ass. 
 1828. Lord C. B. Parker permitted the printed statute concerning the College 
 of Physicians to be read from the printed statute book, printed by the King's 
 printer: Gilb. Law of Ev. 10, 13 ; see further, Bac. Ab., St. L. A very learned 
 opinion given by Mr. J. Holroyd, when at the bar. that an Act of Parliament, 
 although in other respects private, is, as regards a public highway to which it 
 refers, to be considered a public Act, has in many instances been acted upon by 
 magistrates at the sessions. In a late case, R. v. StonebecJaip, York Summer 
 Ass. 1839, on an indictment for obstructing a public way, Maule, B., received 
 an award under a local inclosure Act in evidence, so far as regarded a public 
 highway, set out under the award. Where a map of a parish was made under 
 an inclosure Act, which was a private Act and not printed, it was not received 
 in evidence on an indictment for non-repair of a highway, to show the bounda- 
 ries of the parish, in the absence of proof of the Act, although brought from the 
 parish chest: Reg. v. Inhabitants of Milton^ 1 Car. & K. (47 E. C. L. R.) 58. If 
 counsel produce an Act, local in its nature, stating that it is to be judicially 
 noticed, the judge will do so without requiring a copy printed by the Queen's 
 printer: Forman v. Dawes, Car. & M. (41 E. C. L. R.) 127. 
 
 1 B. N. P. 225 ; per Holt, C. J., 12 Mod. 216 ; see Pothier, by Evans, vol. ii., 
 p. 152. 
 
 ■■ Sucli a clause does not make it notice to all the world of its contents : Ballard 
 v. Way, 1 M. & W. 520; nor evidence against them as to recitals or statements 
 therein : Beaumont v. Mountain, 10 Bing. (25 E. C. L. R.) 404; Duke of Beau- 
 fort v. Smith, 4 Ex. 450; Brett v. Beales, M. & M. (22 E. C. L. R.) 421 ; and 
 tliis must ))e taken to 1)6 the elVect of the decision in the latter case. See Beau- 
 mont v. Mountain and Woodward v. Cotton, infra. It still remains a private or 
 local and personal act: Cock v. Gent, 12 M. & W. 234 ; and see Richards v. 
 Easto, 15 M. & W. 242. 
 
 " lirelt V. Beales, M. & M. (22 E. C. L. R.) 421.
 
 PRIVATE ACTS OF PARLIAMENT. 276 
 
 necessary ; for although every man is bound to take notice of all 
 Acts which concern the kingdom at large, he is not presumed to 
 be cognizant of those which merely concern the private rights of 
 another.' ^ The usual proof formerly was by means of a copy 
 proved upon oath to have been examined with the Parliament 
 roll," or it might also be proved by means of an exemplification 
 under the great seal." And a private Act, if it be thought advisable, 
 may still be proved in this way. In some cases, however, to facilitate 
 proof, it was directed that a copy printed by the King's printer should 
 be admitted in evidence ; and then the production of a copy purporting 
 to have been so printed was sufficient.^ Such proof having been found 
 *extremely convenient and safe in practice, a general pro- 
 vision has been made by the Legislature, which has enacted L J 
 
 ' Bac. Ab. Ev. F. ; Gilb. Law of Ev. 13. See the case of The College of Physi- 
 cians V. West^ 10 Mod. 353. 
 
 " In order to show that a private Act, which was not upon the roll, had been 
 passed, a document was produced by a clerk of the House of Lords, headed 
 "Lontc Calendar of Acts passed from 12 Hen. VIL to 33 Geo. IL," containing 
 the title of the Act in question ; the earlier part of this appeared to have been 
 compiled in 1G40, and it was proved to have been the practice to enter upon the 
 Long Calendar Acts of Parliament as soon as they had received the royal assent, 
 but not before ; the Court, however, seemed to think that this was no evidence 
 that the Act had been passed : Doe dem. Bacon v. Bnjflges, 6 M. & G. (46 E. C. 
 L. R.) 282. 
 
 ^ See tit. ExEMPLiFiCATiox. 
 
 y Upon nul tiel record, pleaded to the Composition Act, Holt, C. J., held, that 
 a copy printed by the King's printer was not sufficient, and that an exemplifi- 
 cation was necessary ; but said, that an Act printed by the King's printer was 
 always good evidence before a jury : Anon.^ 2 Salk. 566. Where an indictment 
 set out the title of an old statute (5 Eliz. cap. 4), agreeably to Ruffhead, which 
 differed from a copy of tlie Act lately printed by the King's printer, the court 
 refused to direct an acquittal without proof of an examination of the Parliament 
 roll : Rex v. Barnett, 3 Camp. 344 ; see R. v. Jefferies, 1 Str. 446. 
 
 ' To constitute a statute a public Act, it is not necessary that it should be 
 equally applicable to all parts of the State. It is sufficient if it extends to all 
 persons within the territorial limits described in the statute : Pierce v. Kimhall, 
 9 Greenl. 54. If a statute contains provisions of a private nature, as to incorpo- 
 rate a bank, &c., yet if it contains also provisions for the forfeiture of penalties 
 to the State, or for the punishment of public offences in relation to such bank, 
 it is a public statute: Roger^s case, 2 Greenl. 303; Crawford v. Bank, 6 Ala. 
 289. Acts prescribing the limits of counties and towns are public Acts, of which 
 the courts are bound judicially to take notice : Comm. v. Sringfeld, 1 Mass. 9 ; 
 New Portland v. Neiv Vineyard, 4 Shop. 69 ; Gorham v. Springfield, 8 lb. 58 ; 
 Stephenson v. Doe, 8 Blackf. 508 ; Hinckley v. Beckwith, 23 Wis. 328 ; Wright v. 
 Hawkins, 28 Tex. 452 ; Whitaker v. Eighth Avenue R. R. Co., 5 Rob. 650.
 
 277 DOCUMENTS OF A PUBLIC NATURE. 
 
 " that all copies of private and local and personal Acts of Parliament, 
 not public Acts, if purporting to be printed by the Queen's printers, 
 shall be admitted as evidence thereof by all courts, judges, justices 
 and others without any proof being given that such copies were so 
 printed.'"^ 
 
 Where the printed copy of an Act is incorrect, the court will be 
 guided by the Parliament roll.''^ 
 
 Where a party appealed against an act done by another under a 
 private statute, it was held that the appellant was not bound to 
 prove an examined copy of the roll, and that a printed copy was 
 sufficient.^ 
 
 But in many cases Acts of a private nature contain a clause de- 
 claring that they shall be deemed to be public Acts, and requiring 
 them to be judicially noticed ; in such cases it is unnecessary to prove 
 an examined or other copy.''^ And in order further to dispense with 
 
 * 8 & 9 Vict. c. 113, s. 3. By s. 4, if any person shall print any copy of any 
 private Act, Avhich copy shall falsely purport to have been printed by the 
 printers of the Crown, or if any person shall tender in evidence any such copy, 
 knowing that the same was not printed by the person or persons by whom it so 
 purports to have been printed, every such person shall be guilty of felony, 
 and be liable to transportation or imprisonment, and such document may be 
 impounded. 
 
 ^ See R. V. Jefferies, 1 Str. 446 ; Spring v. Eve, 2 Mod. 240 ; Price v. Hollis, 1 
 M. & S. 106. 
 
 " E. V. Shmv, 12 East 479. 
 
 " Beaumont v. Mountain, 10 Bing. (25 E. C. L. R.) 404 ; Woodward y. Cotton, 
 1 C. M. & R. 44. 
 
 * A printed statute may be corrected by the enrolled bill filed in the depart- 
 ment of State : Reed v. Clarke, 3 McLean 480. 
 
 ' In Massachusetts, all Acts incorporating manufacturing companies are, by 
 stat. 1808, c. 65, | 7, made public Acts, and as such may be declared upon and 
 given in evidence, without specially pleading them. In the same State and also 
 in Virginia and Pennsylvania a copy of private statutes, printed by order of the 
 Legislature, is admitted in evidence without any further proof: St. of Mass. 
 1805, c. 36; Young v. Bank of Alexander, 4 Cranch 388; Biddis v. James, 6 
 Binn. 321. And in Virginia private statutes may be given in evidence without 
 being specially pleaded ; yet they must be exhibited to the court as documents, 
 and are not to be noticed judiciially as public statutes ai'e : Legrand v. Hampden 
 Sidney College, 5 Munf. 324. In New York, the printed statute book is not 
 evidence of a private Act, but it seems that the rule does not apply to the case 
 of a private statute given in evidence ])y the opposite party, against the party 
 for whose benefit the Act was passed: Duncan v. Duboijs, 3 Johns. Cas. 125. 
 Tiiat courts do not take judicial notice of private statutes, but that they must
 
 ACTS OF STATE GAZETTE. 277 
 
 proof, every Act made after January 1st 1850, is directed to 
 *be deemed a public Act, and judicially noticed as such, uii- r^oyo-i 
 less the contrary be declared.*^ 
 
 The recital in the preamble of a public Act of Parliament of a pub- 
 lic fact, is evidence to prove the existence of that fact. Where an 
 information for a libel alleged that outrages had been committed in 
 particular parts of the kingdom, the preamble of a public Act reciting 
 the fact was held to be admissible evidence to support the averment ; 
 for every subject is, in contemplation of law, privy to the making of 
 such an Act.* 
 
 But such a recital in a private Act, even though it contain a clause 
 declaring that it shall be taken to be a public Act, and judicially 
 taken notice of as such, is not evidence, generally speaking, to prove 
 the facts as against strangers.^ But as against persons who were 
 parties, or claim through them, such a recital will be evidence. It 
 may likewise be evidence of reputation ; thus upon a question as to 
 the right of free warren over an entire manor, with respect to which 
 reputation is admissible evidence, a private Act for inclosure of com- 
 mon lands within the manor, in the recital of which the interest of 
 copyholders appeared, and which Act contained a proviso saving 
 the right of the lord to free warren within the manor in as ample a 
 manner as the lord had theretofore enjoyed it, was held to be evi- 
 dence to prove the right against a copyholder.^ And a private Act 
 of Parliament, enabling the family of Kemeys to sell certain estates, 
 and describing in its recitals the relationship of certain members of 
 the family, was held very strong proof of that relation, so as to 
 establish part of a pedigree.*" ^ 
 
 " 13 & 14 Vict. c. 21. 
 
 « B. V. Sutton, 4 M. & S. 532 ; and see R. v. De Berengei; 3 M. & S. 67. 
 * Brett V. Beales, M. & M. (22 E. C. L. R.) 421 ; Beaumont v. Mountain, 1 
 Bing. (25 E. C. L. R.) 404 ; Duke of Beaufort v. Smith, 4 Ex. 450. 
 e Earl of Carnarvon v. Villehois, 13 M. & W. 313. 
 ■^ Wharton Peerage, 12 CI. & F. 295. 
 
 be proved, like other facts ; see also Portsmouth Livery Co. v. Watson et al., 10 
 Mass. 91 ; Pearl v. Allen, 2 Tyl. 311. M. 
 
 If a statute of a private nature contain a clause declariiiE; it a public Act, it 
 will be noticed by the courts as a public Act : BrookviUe Ins. Co. v. Records, 5 
 Blackf. 170. 
 
 ' The recitals in the preamble of a private statute are evidence of the facts 
 recited as between the State and the party for whose benefit the Act is passed, 
 but they are not conclusive : State v. Beard, 1 Smith 276 : Fred Female Semi- 
 nany v. State, 9 Gill. 379.
 
 279 DOCUMENTS OF A PUBLIC NATURE. ' 
 
 r^ico'jq-i *Acts of State may be proved by a production of the oflS- 
 cial printed documents authorized by government. The 
 Gazette' is evidence of all acts of State, and of everything done by 
 the King in his regal capacity ; so as to prove an averment that 
 divers addresses had been presented to the King;'' for having been 
 received by the King in his public capacity, they become acts of 
 State. So the Gazette is evidence to prove the King's proclamation, 
 as for performance of quarantine. So the printed proclamation of 
 peace is evidence, without examination with the Parliament roll.* 
 The proclamation for reprisals in the Gazette is evidence of an ex- 
 isting war."" 
 
 r*-'?Sm *^^ seems, however, that knowledge of a fact, although it 
 be of a public nature is not to be conclusively inferred from 
 a notification in the Gazette;'' it is a question of fact for the jury. 
 
 But the Gazette is not evidence to prove a particular military ap- 
 pointment," nor to prove particular facts between individuals, ^ and 
 
 ' A fjazette purporting to be printed by the King's printer, must be taken to 
 be the London Gazette : E. v. Holt, 5 T. R. 439. 
 
 ^ B. V. Holt, 5 T. R. 486. The Queen's proclamation is not noticed by the 
 court without the production of the Gazette : Van Omeron v. Dowick, 2 Camp. 
 44 ; 12 Yin. Ab. 129 ; Diqyays v. Shepherd, 12 Mod. 21G ; or a. copy of the pro- 
 clamation, purporting to be printed by the Queen's printer, which is declared 
 to be sufficient evidence : 8 & 9 Vict. c. 113, s. 3. In a prosecution for murder, 
 the articles of war ought to be produced to show how far the prisoner was bound 
 to obedience to the deceased, who was his sergeant : Dupays v. Shepherd. In 
 the case of the Attorney-Gen. v. Theakstone, 8 Price 89, it was held that the 
 Gazette was sufficient evidence of a proclamation issued by the council, because 
 it is a public Act regarding the Crown, and the government, and must pass the 
 great seal before it can be admitted into the Gazette. In General Picton's case, 
 30 How. St. Tr. 225, the Gazette was admitted to prove the articles of capitula- 
 tion for the surrender of an island. 
 
 ' Bac. Ab., Ev. F. ; Doug. 594, in n. ; B. N. P. 220 ; Quech's case, 14 How. St. 
 Tr. 1067. 
 
 " R. V. Holt, 5 T. R. 443. Public notoriety is, it is said, sufficient evidence 
 of the existence of a war : Fost. C. L. 219 ; see R. v. De Bereuger, 3 M. & S. 67 ; 
 and 11 Ves. 292. And a declaration of war by a foreign government trans- 
 mitted by the English ambassador, and produced from the secretary of state's 
 office, is evidence of the commencement of war with a foreign state : Thellusson 
 V. Coslinfj, 4 Esp. C. 266 ; and see 1 Dodson, Ad. R. 244. Documents transmited 
 by British consuls, stating the arrival of vessels at particular ports, are not evi- 
 dence : Roberts el al. v. Eddington, 4 Esp. C. 88 ; and see Waldron v. Coomhe, 
 3 Taunt. 162. 
 
 " Uarratt v. Wise, 9 B. & C. (17 E. C. L. R.) 712. 
 
 " R. v. Gardiner, 2 Camp. 513. 
 
 p But sec R. v. Sutton, 4 M. & S. 532 ; where a proclamation offering a reward 
 for the discovery of certain offenders, which recited that outraires had been com-
 
 DOCUMENTS OF A PUBLIC NATURE. 280 
 
 therefore it is not evidence in an action to prove the appointment of 
 one of the parties to a commission in the army, unless (at least) the 
 adversary refuse to produce the commission, which is the best evi- 
 dence;'' nor where it was alleged in a declaration that a parish had been 
 divided into distinct parishes by order of the King in council under 
 5S Geo. III., c. 45, could the order be proved by producing the 
 Gazette containing a copy of it.^ But it is evidence, as a medium to 
 prove notices ; as of the dissolution of a partnership, which is a 
 fact usually notified in that manner. But without proof that the 
 party to be affected by the notice read the particular Gazette in 
 which it is contained, such evidence is very weak.* And it seems to 
 be incumbent on those who dissolve partnership to give special notice 
 of it to those with whom they have had dealings." ^ Notices of 
 bankruptcies in the Gazette are made sufficient by express r*oei"| 
 ^legislative provisions. It is unnecessary, it is said, to give 
 
 mitted in certain districts, was admitted as evidence to satisfy an averment in 
 an information for a libel that such outrages had been committed. 
 
 1 Kirwan v. Cockburn, 5 Esp. 233 ; s. p., R. v. Gardner, 2 Camp. 513. 
 
 •■ 1 Stark. Ev. 6U7, 3d ed. 
 
 ^ Leeson v. Holt, 1 Stark. C. (2 E. C. L. R.) 186 ; Graham v. Hope, Peake, C. 
 154; Godfrey v. Macauley, Peake, C. 155, n. ; Gorliam v. Thompson, Peake, 
 C. 42. 
 
 ' Leeson v. Holt, 1 Stark. C. (2 E. C. L. R.) 186 : see Partnership ; and see 
 Graham v. Hope, Peake, C. 154 ; Munn v. Baker, 2 Stark. C. (3 E. C. L. R.) 255 ; 
 Gorham v. Thompson, Peake, C. 42. 
 
 " 1 Esp. C. 171 ; Gorham v. Thompson, Peake. C. 42; Jenkins v. Blizard, 1 
 Stark. C. (2 E. C. L. R.) 418 ; Kirwan v. Kirwan, ICv. & M. 617. 
 
 ^ Notice by advertisement in a newspaper printed at the place where the part- 
 nership business was carried on has been held sufficient notice of dissolution as 
 to all persons who had no previous dealings with the firm : Ketchum v. Clark, 
 6 Johns. 144 ; Graves v. Merry, 6 Cow. 701 ; Shaffer v. Snyder, 7 S. & R. 503 ; 
 Prentiss v. Sinclair, 5 Vt. 149 ; Shurlds v. Tilson, 2 McLean 458 ; Watkinson 
 V. Bank, 4 Whart. 482 ; Gallicott v. Bank, 1 M'Mull. 209 ; Mauldin v. Bank, 2 
 Ala. 502 ; Simonds v. Strong, 24 Yt. 642. Actual notice however must be given 
 to those who have had such previous dealings : Wardwell v. Haight, 2 Barb. S. C. 
 549 ; Hutchins v. Hudson, 8 Humph. 426 ; Conro v. Iron Co., 12 Barb 27. The 
 receipt by a previous dealer with a firm, of a newspaper containing a notice of 
 the dissolution of the partnership, the dealer being a subscriber for the paper, 
 though a circumstance tending to prove notice, is not per se sufficient to prove it : 
 Hutchins v. Bank, 8 Humph. 418. To constitute a person a previous dealer, 
 with a firm and entitled to actual notice of the dissolution of the partnership, 
 he must have dealt directly with the firm ; it is not sufficient that he may have 
 dealt in paper, for which the firm was responsible : Ibid.
 
 281 FOREIGN AND COLONIAL ACTS OF STATE. 
 
 any evidence to authenticate the Gazette produced, or show whence 
 it came/ 
 
 Acts of State in a foreign country, or British colony, may be 
 proved by copies examined with the original archives, or exemplified 
 under the great seal of that country,^ or by copies purporting to be 
 sealed with the seal of the foreign State or British colony.^ Com- 
 mercial regulations must be proved by copies thereof.^ ^ 
 
 ' E. V. Fursi/th, Russ. & R. 274. 
 
 y Richardson v. Anderson, 1 Camp. 65, n. 
 
 ' 14 & 15 Vict. c. 99, s. 7. "All proclamations, treaties, and other acts of 
 state of any foreign state or of any British colony," may be proved in any 
 court, &c., either by examined copies or copies authenticated, as hereinafter 
 mentioned ; that is to say, they " must purport to be sealed with the seal of the 
 foreign state or British colony to which the original document belongs ;" " but 
 if any of the aforesaid authenticated copies shall purport to be sealed as herein- 
 before directed, the same shall be admitted in evidence in every case in which 
 the original document could have been received in evidence, without any proof 
 of the seal." 
 
 » 30 How. St. Tr. 491. 
 
 ^ By the statute of the United States passed May 26th 1790, '' The Acts of the 
 Legislatures of the several States shall be authenticated by having the seal of 
 their respective States affixed thereto." 
 
 In conformity with the decisions on the latter clause of this statute (see ante^ 
 p. 259), it might be anticipated that the courts of the United States would hold 
 that the statute of one State is not admissible in evidence in the courts of another, 
 unless authenticated by the seal of the State in which it is enacted. It has ac- 
 cordingly been held that printed statute books not authenticated by the seal of 
 the State are not admissible evidence in any other State : Craig v. Brown, 
 Peters C. C. 352. And this decision has been followed in North Carolina : 
 State V. Ticitty, 2 Hawks 441. It has been previously held, in that State, that 
 the printed laws of Virginia were good evidence : Poindextery. Bai-ker, 2 Hayw. 
 173; although a statute, certified by the clerk of the House of Delegates, was 
 ruled not to be evidence : Ellmore v. Mills, 1 Hayw. 360. In Pennsylvania, the 
 courts have admitted in evidence copies of the statutes of other States contained 
 in a book purporting on its face to contain the laws of, and to be printed by the 
 printers of those States : Thompson v. Musser, 1 Dall. 462 ; one judge dissenting ; 
 s, p. Biddis V. James, 6 Binn. 321 ; and in one instance such evidence has been 
 rejected : Comm. v. Fraser, cited 6 Binn. 323. In (Massachusetts and) Vermont the 
 statute laws of any one of the United States, if printed under the authority of 
 such State are admitted in evidence : {liaynham v. Canton, 3 Pick. Rep. 293) ; 
 State V. Blade, 1 Chip. Rep. 303. The court said, in that case, " If such an Act 
 be proved, agreeably to the provisions of the Act of Congress, the courts are 
 hound to admit it; they may admit it, although not so proved." In Connecticut, 
 a book of the statutes of another State, printed by a 2>rivate printer, is not 
 admisHilde in evidence : Bostwick v. Bogardcs, 2 Root 250. Where the seal of a 
 State is affi.vcd to an exemplification of an Act of the Legislature, the attestation
 
 DOCUMENTS OF A PUBLIC NATURE. 281 
 
 So certain things, besides Acts of Parliament, printed or pur- 
 porting to be printed by the Queen's printer are evidence; thus 
 
 of a public officer is not required : United States v. Johns, 4 DaU. 413. Although 
 in strictness, the Acts of the Legislature of other States are (probably) not 
 admissible in evidencic, unless they are authenticated according to the above- 
 mentioned statute of the United States, yet in practice, public statutes published 
 by authority of other States arc genei-ally read without objection in the State 
 courts. The statute of another State cannot be noticed by courts unless they 
 are pleaded : Pearsall et al. v. Dwight, 2 Mass. Rep. 84 ; Legg v. Legg, 8 Ibid. 
 99; Walker et al. v. Maxwell, 1 Ibid. 104; Bcauchamjy v. Mudd, Hardin 165 ; 
 see also Tarlton v. Briscoe, 4 Bibb 73 ; Talbot v. David, 2 Marsh. 609 ; where it 
 was decided by the Court of Kentucky, that the laws of a sister State cannot be 
 judicially noticed there, but must be proved. M. 
 
 The journals of the Senate of New York, printed by the State printer, and 
 laid on the tables of members, are evidence: Root v. King, 7 Conn. 613. But 
 the commercial code of France, which is a written law, cannot be proved by the 
 production of a printed book admitted to be conformable to the official edition 
 of the code published hy the government: Chamoine v. Fowler, 3 Wend. 173; 
 see also Lincoln v. Battelle, 6 Wend. 475 ; Harford v. Nichols, 1 Paige 220. Gr. 
 
 Printed statute books of laws of sister States are admissible : Thomas v. Davis, 
 7 B. Mon. 227 ; Burton v. Anderson, 1 Tex. 93 ; Clarke v. Bank of Missis sipjn, 
 5 Engl. 516 ; Stewart v. Swanzij, 23 Miss. 502 ; Barkman v. Hopkins, 6 Engl. 
 157 ; Lord v. Staples, 3 Fost. 448 ; Emerrj v. Berrij, 8 Fost. 473 ; Dixon v. 
 Thatcher, 14 Ark. 141 ; Charlesicorth v. Williams, 16 111. 338 ; Adams v. Gay, 
 19 Vt. 358 ; Stanford v. Fruet, 27 Ga. 243 ; Yarborough v. Arnold, 20 Ark. 
 592; Merrifeld v. Bobbins, 8 Gray 150; Vaughn v. Griffith, 16 Ind. 353; 
 Greasons v. Davis, 9 Iowa 21 9 ; Ashley v. Root, 4 Allen 504 ; Crake v. Crake, 
 18 Ind. 156. A digest of the laws of a State, which does not appear to have 
 been published by authority of law, is inadmissible: Geron v. Felder, 15 Ala. 
 304. Foreign laws or those of sister States are proved like other facts ; and 
 the unwritten laws and customs are ordinarily proved by the oral testimony of 
 competent witnesses instructed in the law : 7)/ler v. Trabue, 8 B. Mon. 806 ; 
 Bryant v. Kelton, 1 Tex. 434 ; Stevens v. Bomar, 9 Humph. 546 ; Gardner v. 
 Leiois, 7 Gill. 377. Although in the case of an isolated and peculiar nation, 
 like China, there may be admitted parol evidence of its laws, and this from 
 persons not jurisconsults, yet such evidence will be received only when it is so 
 direct and positive as to be quite free from ambiguity : Wilcocks v. Fhillips, 
 Wall. Jr. 47. Proof of the written law of a foreign country may be by some 
 copy of the law, which the witness can swear was recognized as authoritative 
 in the foreign country, and which was in force at the time : Spaulding v. Vin- 
 cent, 24 Vt. 501. A copy of the civil code of France, purporting to be printed 
 at the royal press in Paris, and received in the course of our international 
 exchange, with the indorsement " La Garde des Sceaux de France a la Cour 
 Supreme des Etats Unis," is admissible in the courts of the United States as 
 evidence of the law of France: Ennis v. Smith, 14 How. (S. C.) 400. The writ- 
 ten or statute laws of a foreign government must be verified in the same manner 
 as foreign judgments — by the exemplification of a copy under the great seal of 
 state or by a sworn cojjy. The national seal, affixed to the exemplification of a
 
 281 DOCUMENTS OF A PUBLIC NATURE. 
 
 the articles of war so published are evidence of them,'' and copies 
 of royal proclamations purporting to be so printed are evidence even 
 ■without proof that they were in fact so printed. ° The rules, orders, 
 and regulations of the poor-law commissioners may be proved by a 
 copy printed by the Queen's printer, which copy after fourteen days 
 from its date shall be received in evidence and judicially noticed, and 
 shall be sufficient proof that it was duly made and is in force, until 
 the contrary be shown.*^ 
 
 The journals of the House of Lords have always been admitted as 
 evidence of their proceedings, even in criminal cases ;^ and those of 
 the House of Commons are also admissible for the same purpose.* 
 r*9Q.->-i The Parliament *roll or journal is the usual evidence of a 
 sitting in the House of Lords.** And where the enrolments 
 and journals are wanting, a memorandum on a Parliament roll of a 
 grant to the king by certain "magnates et proceres" named therein, 
 was held to be evidence of one of them having sat as a peer.' A 
 writ of summons as a peer to Parliament is proved by the enrolment 
 of it.' The journals have been received by a committee of privileges 
 to prove the limitations in a patent of peerage, without calling for 
 the patent itself.' An unstamped copy of the minutes of the rever- 
 sal of a judgment in the House of Lords, without more of the pro- 
 ceedings, is evidence of the reversal,' The journals of the House of 
 Lords are evidence to prove an address of the house to the king, and 
 his answer,'' in order to support an averment in an information, that 
 certain differences had existed between the Kins; of Eno;land and the 
 King of Spain. But the journals are not evidence of particular facts 
 stated in the resolutions, which are not a part of the proceedings of 
 the house. L^pon the indictment of Oates for perjury, a resolution 
 
 " R. V. Withers, 5 T. R. 446. See note (/.■), supra. 
 
 = 8 & 9 Yict. c. 113, s. 3. 
 
 17 & 8 Vict. c. 101, s. 71. 
 
 ® See Jones V. Randall, Cowp. 17; R. v. Lord George Gordon, Doug. 593; 
 Lord Melville's case, 29 IIow. St. Tr. 549. 
 
 •> Hastings' Peerage, 8 CI. & F. 144. 
 
 * Lord Dufferin's case, 4 CI. & Fin. 568. 
 
 ^FranJcUn's case, 9 St. Tr. 259, cited by Bullcr, J., 5 T. R. 445; and see 4 
 St. Tr. 376, 445 ; Doug. 593. 
 
 foreign law or judicial proceeding, proves itself: Watson v. Walker, 3 Fost. 471. 
 The enrolled acts of the legislature, when signed b}' the pi*esiding officers of 
 the two houses and by the Governor, and filed among the archives of tlie State, 
 like the parliament rolls in England, are records and import absolute verity : 
 Green v. Weller, 32 Miss. 650.
 
 ANCIENT SURVEYS. 282 
 
 of the House of Commons of the existence of a Popisli plot was re- 
 jected as evidence of tlie fiict.' Nor is a copy of an inscription on a 
 tombstone, which copy was made from the minutes of a committee of 
 privileges, evidence in another case." In KyioUys case it was held, 
 that, upon a plea in abatement tliat the party was a peer, a replica- 
 tion was bad, which alleged that the peerage had been disallowed by 
 the Lords." Copies of the journals of either house purporting to be 
 printed by the printers to the Crown or to either house, are now evi- 
 dence, without proof that they were so printed." ^ 
 
 *A11 public acts done by the Crown affecting the posses- r*9Qq-| 
 sions and revenues of the Crown, are to be considered as 
 public Acts, and are admissible in evidence as such.^ An enrolment 
 of a lease of lands belonging to the Crown in right of the Duchy of 
 Lancaster is admissible,P on account of the interest of the Crown in 
 the duchy and its revenues. So, examined copies of expired leases 
 by the Crown, deposited in the oflBce of his Majesty's Land Records 
 and Enrolments, pursuant to stat. 2 Will. IV., c. 1, were admitted to 
 establish the title of the Crown to lands to which such documents re- 
 lated.'' A book in which leases were enrolled and kept in the custody 
 
 ' E. V. Gates. 10 How. St. Tr. 1079, " Vm(x Peerage, 4 CI. & F. 526. 
 
 ° 2 Salk. 509. " 8 & 9 Vict. c. 113, s. 3. 
 
 p Kianersleij v. Orpe, Doug. 56 ; and see 13 M. & W. 475. 
 
 "i Doe clem. King William IV. v. Roberts, 13 M. & W. 520. Enrolments, or 
 examined copies of enrolments, deeds, certificates, receipts, or other instruments 
 purporting to set forth a copy of the whole, or part thereof, and to be signed 
 and certified by the keeper of the records of the Duchy of Cornwall, or of Lan- 
 caster, shall, without producing the original, or calling any attesting witness, 
 and in the case of a certified copy, without other proof than the production of 
 the certificate that such a copy is a true one, be admitted in all legal proceedings 
 to be proof of such original instrument, or enrolment thereof, or of so much as 
 the copy purports to set forth, and that the original was duly made, granted, 
 given, or executed by the parties thereto: 7 & 8 Vict. c. 65, and 11 & 12 Vict, 
 c. 83. 
 
 ^ The votes of the Assembly and minutes of Council have been admitted, in 
 Pennsylvania, to prove the time of the notification of the repeal of an Act of 
 Assembly, by the King in Council : Lessee of Albertson v. Robeson, 1 Dall. 9. 
 The printed journals of Congress have also been allowed to be read in evidence 
 without proof of their authenticity : Comm. v. Longchamp, Philada. 1784, MS. 
 Norris"s Pcake 84, n. M. 
 
 ^ A printed copy of public documents transmitted to Congress by the Presi- 
 dent of the United States, and printed by the printer to Congress, is evidence: 
 per Kent, C. J., Radcliffe v. United Insurance Co., 7 Johns. 38. In this case 
 tlue printed copy of a letter from the British Secretary of State to the American 
 ambassador was ofl'ered as evidence of the existence of a blockade. M.
 
 283 DOCUMENTS OF A PUBLIC NATURE. 
 
 of the auditor of the Bishop of Durham (who is a patent officer within 
 the county palatine), is a public muniment. And therefore where 
 search had been ineffectually made for an original lease to a lessee 
 under the bishop, and the counterpart, it was held that such book was 
 admissible as secondary evidence of such lease." 
 
 A caption of seisin taken to the use of the first Duke of CornAvall 
 by persons assigned by his letters patent for that ^purpose, 
 L ~ J was held admissible as a public Act in evidence to show the 
 rights of the duchy.' 
 
 An instrument under the great seal of Scotland, produced from the 
 repository of the heir of entail of the family property, was admitted 
 by the House of Lords as evidence of the creation of a peer, with 
 limitation in tail as therein stated, in the absence of any patent of 
 creation.* 
 
 Surveys, taken under authority, are also evidence. Domesday- 
 hook was a survey made of the king's lands in the time of William 
 the Conqueror ;" and when a question arises whether a particular 
 manor be of ancient demesne or not, that is, of the socage tenures 
 which were in the hands of Edward the Confessor, the trial is by in- 
 spection of the Domesday-book, which is preserved in the Exchequer.^ 
 
 ' Humble v. ILmt, Holt's C. (3 E. C. L. R.) 601. A book produced from the 
 chapter-house of the dean, &c., of S., kept by the chapter-clerk, and purporting 
 to contain copy of leases, &c., granted by the dean, &c., held to be in the nature 
 of a public document, and admitted in evidence to prove reputation as to boun- 
 dary of a parish: Cootnbs v. Coether, M. & M. (22 E. C. L, R.) 39S ; and see 
 Humble V. Hunt, above cited. 
 
 ° Eowe V. Brenton, 8 B. & C. (15 E. C. L. R.) 743. And the same rules are 
 applicable" whether the lands and revenues are at any particular time vested in 
 the Duke of Cornwall or the King. Held, therefore, that as the enrolment of 
 a lease in the duchy office would be good evidence of a lease, if the Crown 
 alone were interested, it was equally so in the case of a lease, by the Duke : 
 Ibid. 750. 
 
 ' HunthT/ Peerage, 5 CI. & F. 349. 
 
 " The public in general, and the legal profession more especially, are greatly 
 indebted to Sir II. Ellis for his most valuable and instructive work on Domes- 
 day ; a record in which the lawyer, the antiquary, and the historian possess one 
 common interest. Some curious particulars connected with the compilation of 
 Domesday are to be found in Ingulphus's History of Croyland. Ingulphus, the 
 abbot and learned historian of his own abbey, and the early friend of William 
 the Conqueror, relates, with satisfaction, that the possessions of the abbey were 
 underrated ; and his statement fairly affords the inference that this was not a 
 solitary instance of the kind. A tax, or census, proportioned to the possessor's 
 revenues, would j)robably be suspected as one motive for compiling such a 
 document. 
 
 » Hob. 188; Gilb. Law of Ev. G'J, Gth cd. ; Trial per Tais 342; Bac. Ab.,
 
 ANCIENT SURVEYS — INQUISITIONS. 284 
 
 Frequent changes in the names of places render evidence for the pur- 
 pose of identification very important/ *It has been hchl p^fj^r-i 
 that a variance between the modern name and that contained L *-' J 
 in Domesday ought to be averred on the record/ This ancient sur- 
 vey seems to be generally admissible as to all matters which it contains 
 in respect of manors, and as to ancient local divisions or boundaries, 
 the tenure or occupation of manors, lands, or mills ; as also to matters 
 of pedigree, and other immemorial rights or circumstances which arc 
 the subject of proof. 
 
 In the Exchequer also is another ancient survey, which ascertained 
 the extent of the king's ports. *^ 
 
 The valor benejiciorum, a valuation of the profits of spiritual pre- 
 ferments made under a commission from Pope Nicholas III., and 
 completed A. D. 1292, and known also by the title of Pope Nicholas's 
 Taxation, is still preserved in the Exchequer, in the Office of the 
 Queen's Remembrancer. In applying the restrictive clause in the 
 statute 21 Hen. VIII., c. 13, concerning pluralities, and the ex- 
 emptions from it, to college livings, their value is ascertained by 
 this survey.^ When the first fruits and tenths, on the abolition of 
 the papal power, were annexed to the Crown, a new valor r*9op-i 
 heneficioruyn *was made, by which the clergy are at present 
 rated.'' Tliis valuation ^was made by commissioners under the great 
 
 Ev. F. A very faithful copy of this document has lately been printed by the 
 government. 
 
 y See an instance cited, 2 Phil. Ev. 580, 9th edit., where the manor of Bowden 
 was identified with that of Bugedine, in Domesday, by means of old deeds. In 
 the case o^ Alcock v. Cooke, cited Ibid., the question turned on what, according 
 1.0 the correct mode of reading Domesday, was parcel of the manor of Grantham, 
 and whether the effect of a red line drawn through the words '' Hythe Wapen- 
 take" denoted an error, or was for the purpose of drawing attention. 
 
 ^ Grecfori/ v. Williams, 28 C. 2; Gilb. Law of Ev. 44 ; 3 Keb. 588. 
 
 » Gilb. Law of Ev. 69 ; Bac. Ab., Ev. F. 
 
 ^ 2 Lut. 1305 ; Humphreys v. Knight, Cro. Car. 455 ; Stamp v. Ayliffe, 2 Gwill. 
 536. See the First Report of the House of Commons on Public Records. This 
 taxation is evidence of the value at which those employed to make it estimated 
 the living. See Bulleuv. Milchell, 2 Price 477. And all taxes due to the king, 
 as well as the pope, were regulated by it. As to the effect of this and other 
 such surveys, and also as to minister's accounts, see Vol. II., tit. Tithes. It has 
 been frequently asserted that this valuation was too low : see Weston v. Vaiighton, 
 2 Phil, on Ev. 104, 9th ed., in which Lord Tenterden observed that it had been 
 generally supposed that Pope Nicholas's valuation was too low; see also Chap- 
 man y. Smith, 2 Ves. sen. 506 ; Bree v. Beck, 1 C. ■& J. 267 ; 6 Price 483. 
 
 * 1 Bl. Com. 285. This valor beneficiorum is commonly called the King^s 
 books, a transcript of whiuh is given in Bacon's Liber Regis, and in Ecton's 
 Thesaurus.
 
 286 DOCUMENTS OF A PUBLIC NATURE. 
 
 seal, who, in executing this duty, seem to have calculated the value 
 of the first fruits and tenths, without regarding any modus or other 
 legal exemption. A survey, dated 15(13, from the First-fruits Office, 
 of the possessions of the nunnery of St. Mary without the walls of 
 York, was admitted to prove a vicar's right to certain tithes, although 
 the original commission was lost.^ Parliamentary surveys under the 
 Commonwealth are also admissible ;" and where the originals have 
 been lost, as many were at the time of the great fire of London, 
 copies of them, taken from unsuspected repositories, have also been 
 admitted.^ So great is the reputed accuracy of these surveys, that 
 their silence as to an alleged modus has been considered to be strong 
 evidence against its existence.^ 
 
 Another ancient record is the inquisitiones nonarum, which was 
 taken in the reign of Edward III., by commissioners under the great 
 seal, upon the oath of the parishioners in every parish, in order to 
 ascertain the value of the ninth of corn, wool and lambs in every 
 parish, a grant having been made by Parliament in the 14th year of 
 the reign of that sovereign.*" 
 ^^ On the same ground an inquisition taken in 1730, by *the 
 
 direction of the House of Commons, has been received as 
 conclusive evidence of the tenure and fees of the difierent oflSces 
 to which it relates.' And, as it seems, upon the same principle, in- 
 quisitions under public commissions, but of limited extent, have also 
 been received, as in the case of Tooker v. The Duke of Beaufort,^ 
 where it was held that a return to a commission out of the Exche- 
 quer, in the reign of Elizabeth, to inquire whether the prior of St. 
 Swithin, or the Crown, after the dissolution of the priory, were seised 
 of certain lands, was evidence. So, in the case of Doe v. ITarcourt,^ 
 
 * Kellinyton v. Master, tfcc, of Trinity College, Cambridge, 1 Wills. 1 70 ; Under- 
 hill V. Durham, 2 Gwill. 542. 
 
 * Blundcll V. Howard, 1 M. & S. 292 : see infra, note [p). 
 
 f Underhill v. Durham, 2 Gwill. 542 ; 4 Dow. 297 ; Green v. Proiide, 1 Mod. 
 117. 
 
 8 Blundell v. ILnmrd, 1 M. & S. 292 ; Rex v. Ireland, 1 1 East 284. 
 
 '■ The corninissionors were to levy the ninth in every parish, according to the 
 rate at which churches were taxed, (viz., by Pope Nicholas's Taxation,) if the 
 value of the ninth amounted to so much, but if not, then only accordinf^ to the 
 true value. See the Report of the Commissioners of Public Records, App. 
 
 ' Green v. Hewett, Peake, C. 182; Peake, Ev. 85, 3d ed. 
 
 " Burr. 148 ; Irish Society v. Bp. of Derry, 12 CI. & F. (Ul. But a return to 
 a coiniiiisHion, not si^rned or sealed, is inadmissiljle, for non constat, it was pot a 
 draft: Slaue Peerage, 5 CI. & F. 24. 
 
 ' I'cake, Kv. S4 ; and see Carr v. Mostyn, 5 Ex. G9.
 
 ANCIENT SURVEYS — INQUISITIONS. 287 
 
 it was held that a survey of land, belonging to the prebend of the 
 Moor of St. Paul's, Avas admissible evidence against the lessees of the 
 prebendary. 
 
 An ancient extent of Crown lands, produced from the proper place 
 of deposit (the Lord Treasurer's Remembrancer's Office,) purporting 
 to have been taken by the steward of the King's lands, and follow- 
 ing in its construction the stat. 4 Edw. I., was held to be admissible, 
 on the presumption that it had been taken under proper authority, 
 although the commission could not be found."^ So an extent or sur- 
 vey of Crown lands, purporting to have been made in the time of 
 Edw. III., by the steward of the Crown lands, and found in the 
 Office of Land Revenue Records, is evidence of the title of the 
 Crown thereto." But on a question as to the boundary of a manor, 
 formerly part of the Duchy of Lancaster, a document of the time 
 of Elizabeth, produced from the Duchy Office, purporting to be a 
 survey of the manor, taken by the deputy of the Surveyor-General 
 of the duchy under letters of deputation *from him, by the r*9oo-| 
 oaths and presentments of tenants of the manor, whose 
 names were subscribed, and who were therein called jurors at the 
 Court of Survey, and containing a* statement of the boundaries, a 
 list of tenants and rents, and a presentment of the demesnes, of cus- 
 toms, of injuries suggested, and some other particulars, no authority 
 for taking it being proved, was held not admissible, either as a sur- 
 vey taken under 4 Edw. I., st. 1, or as evidence of reputation ; the 
 statute not authorizing the tenants to find the boundaries." So a 
 book purporting to be a survey of the lordship of Gower, made in 
 1650, by authority of Oliver Cromwell, after a grant by Parliament 
 of that lordship to him, stating a presentment by the jury of cer- 
 tain payments as due to the lord, but not signed by them, no com- 
 mission for making it being proved, was held not admissible as a 
 public document, or as evidence of reputation. But the court seemed 
 to doubt the correctness of the decision in the last-mentioned case 
 upon the question of the admissibility of the document therein men- 
 tioned as evidence of reputation. ^ 
 
 Inquisitions post mortem appear originally to have been taken 
 before justices in Eyre upon the deaths of the king's tenants in 
 
 ^ Eowe V. Brenton, 8 B. & C. (15 E. C. L. R.) 747; and see Lord Carnarvon 
 V VUlehois, 13 M. & AV. 532. 
 
 ° DQe dem. King William IV. v. Roberts, 13 M. & W. 520. 
 " Ei-ans V. Taylor, 7 Ad. & E. (34 E. C. L. R.) 617. 
 P Dul<e of Beaufort v. Smith, 4 Ex. 451. 
 18
 
 288 DOCUMENTS OF A PUBLIC NATURE. 
 
 capites The stat. 1 Hen. VIII., c. 8, enacts, that these shall be 
 taken on tlie oaths of twelve men, and in open places. These were 
 afterwards placed under the jurisdiction of the Court of Wards and 
 Liveries, erected in the 32d and 33d year of Hen. VIII. Upon 
 the abolition of this court, together with the military tenures 
 from which they sprung, the practice of taking such inquisitions 
 ceased. 
 
 Such inquisitions thus made under authority are admissible, and 
 r*9QQ-i ^^6 most important,'' although not conclusive *evidence' of 
 their contents ; but where the proceedings appear to have 
 been irregular, such inquisitions are not receivable in evidence.' 
 
 It is not essential to the admissibility of evidence of this nature 
 that the inquiry should have been made by means of witnesses ex- 
 amined on oath ; it is sufficient that it was made by virtue of com- 
 petent authority on behalf of the public, and on a subject-matter of 
 public interest. 
 
 It is, however, of the very essence of evidence of this nature that 
 the inquiry should have been made under proper authority ; in gene- 
 ral, therefore, unless the authority be in its nature notorious, it must 
 be proved by the production of the commission, as in the case of an 
 inquisition post mortem, and such private offices." And in other 
 cases, where it may be presumed that the commission under which 
 the depositions were taken has been lost, they may be read without its 
 production.'' And in cases of general concern, such as the ministers' 
 returns to the commission in Henry the Eighth's time to inquire into 
 the value of livings, the party is not bound to give in proof the com- 
 mission,y and it would be attended with great inconvenience and ex- 
 pense to oblige parties to take copies of the whole record. Where 
 an inquisition has been taken without legal authority it is inad- 
 missible.* 
 
 9 See 2 Bla. Com. 68. Vol. II., tit. Pedigree. 
 
 ^ Lord Mansfield observed, in Birt v. Barlow, Dougl. 171, that it is easier to 
 establish a pedigree for five centuries before the time -of Charles the Second than 
 for one century afterwards. 
 
 ' Per Lord Ilardwickc, in Sergeson v. SeaJei/, 2 Atk. 412; Lord Thanet v. 
 Foratcr, Jones 224 ; and see the observations of Bayley, B., in Beck v. Bree, 1 
 C. & J. 256. 
 
 * See Cruise on Dignities, c. 6, s, 60; and Vol. II., tit. Pedigree. 
 
 ° B. N. P. 228 ; Evans v. Tai/lor, 7 Ad. & E. (34 E. C. L. R.) 617. 
 
 * Bayley v. Wylie^ 6 Esp. C. 85 ; Roice v. Brenton, post, pp. 292, 293, note [t). 
 ' Bayley v. Wyiie, 6 Esp. C. 85 ; Vicar of KiUiiujdni v. Trinity College, 1 
 
 Wils. 170. 
 
 ' Sec below, Latkow v. Earner, 2 II. B. 437; Glossop v. Pole, 3 M. & S. 175.
 
 TERRIERS AND SURVEYS. 289 
 
 Similar to these in their nature, but differing in point of authority, 
 are ohl terriers, or surveys, whether ecclesiastical or temporal, which 
 are admissible to prove old tenures *or boundaries.* Such r^Qoni 
 boundaries are artificial and arbitrary, and cannot be estab- 
 lished by the testimony of eye-witnesses ; in such cases, therefore, 
 unless surveys of antiquity and of authority were admissible, all evi- 
 dence would frequently be excluded. It is however necessary to 
 clothe such evidence with some authority, in order to distinguish it 
 from the mere inaccurate description made by a stranger*" for purposes 
 unknown. Ecclesiastical terriers, which contain a detail of the tem- 
 poral possessions of the church in every parish, are made by virtue 
 of an ecclesiastical canon," which directs them to be kept in the 
 bishop's registry,*^ or the registry of the archdeacon of the diocese,* 
 and it is not unusual to deposit a copy in the chest of the parish 
 church.^ These being made under authority are admissible evidence, 
 as a species of ecclesiastical memorials or records of the possessions 
 of the church, and are as strong in their nature as any that can be 
 adduced for such purposes.^ 
 
 Terriers are admissible not only in suits between landowners on 
 one side and the parson on the other, but also *in suits be- r^oq-i-i 
 tween a vicar and impropriator.^ A terrier is always strong 
 evidence against the parson, but not for him, unless it has been 
 signed by the churchwardens also, or (if they be nominated by him) 
 
 » B. N. P. 248 ; Bac. Ab., Ey. F. ; Gilb. Law of Ev. 70; Chapman v. Coidan, 
 13 East 10. An unsigned map, or terrier, is not evidence : Earl, Clerk, v. Lewis, 
 4 Esp. C. 1 ; though it purport to have been taken by competent authority, and 
 have been generally received as authentic : Pollard v. Scott, Peake 18, cor. Lord 
 Kenyon ; and see AtJcins v. Watson, 2 Anstr. 386; Ltjgon v. Strutt, Ibid. 601. 
 Old surveys and maps, although not ecclesiastical, may also be admitted under 
 similar circumstances as terriers : Earl v. Lewis, 4 Esp. 1 ; Pollard v. Scott, 
 Peake 19 ; Wakeman v. West, 7 Car. & P. (32 E. C. L. 11.) 479 ; Doe v. Lakin, 
 Ibid. 481. 
 
 '' See the principle, supra, p. 260. "^ 87th. 
 
 * Atkins V. Hatton, 4 Gwill. 1406 ; 2 Anstr. 386 ; Pulley y. Hilton, 12 Price 625. 
 
 « Potts V. Durant, 4 Gwill. 1450. 
 
 ' Armstrong v. Hewett, 4 Price 218. 
 
 ' Drake Y. Smyth, 3 Price 369; Toymbee v. Broimi, 3 Ex. 117; and see that 
 case as to their effect. AVhere for a long series of years 80Z. a year had been 
 paid as compensation in lieu of tithe, the Court of Exchequer held that it would 
 be unreasonable to give any weight to a terrier signed in 1822, describing that 
 payment as free from taxes and parochial assessments. 
 
 ^ lUinguiorth v. Leigh, 4 Gwill. 1615; Potts v. Durant, 3 Anstr. 789. As to 
 the effect of terriers in evidence, see Atkins v. Drake, M'Clel. & Y. 214 ; Lake v. 
 Skinner, 1 J. & W. 9 ; Stuart v. Grenall, 9 Price 106 ; Vol. II., Tithes.
 
 291 DOCUMENTS OF A PUBLIC NATURE. 
 
 by some of the substantial inhabitants, without which it deserves (it 
 is said) little credit.' A terrier imperfect, because it has not been 
 signed by the vicar, is still admissible.'' Upon a question of title 
 between the vicar and rector, a terrier, signed by the churchwardens, 
 but not by the vicar, was held to be not only admissible, but to be 
 even stronger evidence for the successor than if it had been signed 
 by the vicar for the time being; and it was held to be no objection, 
 that it was not signed by any one who claimed under the rector.^ 
 Old terriers, signed by the rector, churchwardens, overseers, and 
 some of the resident parishioners, were held to be good evidence for 
 the rector, to rebut the presumption of a farm-modus which was at- 
 tempted to be established, although such terriers were not proved to 
 have been signed by any person interested in the farm." 
 
 It is, in general, essential to the reception of ancient instruments 
 of this kind, and indeed of all others, whether they be of a public or 
 private nature, such as public surveys, inquisitions, or ancient deeds, 
 that the authority of the document should be established by the only 
 r*9Q9"i ^'^^ ^^ proof of which it is in general capable ; that is, by 
 *proof that it came out of the proper repository." A docu- 
 ment, purporting to be an endowment by a bishop, but without his 
 seal, and an inspeximus of the bishop under his seal, were rejected, 
 because they came out of the hands of a mere private person." In 
 the case of Michell v. Habbetts,^ it was held that an ancient grant to 
 an abbey, in a manuscript, entitled -^^ Seer etu7n Abbatis," kept in the 
 Bodleian Library at Oxford, was inadmissible, for want of proof of 
 proper custody. On this authority also, it was held by Lawrence, 
 J., that an ancient grant to a priory, found amongst the Cottonian 
 Manuscripts in the British Museum, without proof of connection be- 
 tween the possession of the grant, and an interest in the estate,** 
 
 ' B. N. P. 248 ; Earl v. Lewis, 4 Esp. C. 1. 
 
 MGwill. 1615. 
 
 ^ IlUncjworth v. Leiyh, 4 Gwill. 1615. 
 
 "^ Mytton V. Harris, 8 Price 19, Wood, B., dissentiente. He ap;i'eed that, as 
 to such terriers as affected the parish generally, it would be sufficient if they 
 were signed by any of the parishioners ; but held that their signing a terrier 
 would not make it admissible to affect a farm-modus. 
 
 ° See post. Some person should prove that they come from the proper 
 custody ; mere production by the counsel or the party is not generally enough : 
 Evatis V. Eees, 10 Ad. & E. (37 E. C. L. R.) 151 ; but see Doe v. Phillips, 8 Q. 
 B. (55 E. C. L. R.) 158 ; Doe v. Keeling, 11 Q. B. (63 E. C. L. R.) 884. 
 
 » Potts V. Durant, 4 Gwill. 1450. 
 
 P Cited 3 Taunt. 91. 
 
 ■i Swinnerton v. Marquis of Hlafford, 3 Taunt. 91 ; Earl v. Lewis, 4 Esp. C. 1.
 
 TERRIERS — PROOF AS TO CUSTODY. 292 
 
 could not be received in evidence. But it is not necessary, in order 
 to render a document admissible, that it should come from the most 
 proper custody ; it is sufficient, if it come from a place where it may 
 reasonably be expected to be found. "^ 
 
 Papers delivered by the son of a deceased rector to the successor's 
 attorney, as old parish documents, are sufficiently identified by the 
 attorney, without calling the son,°* 
 
 An ancient extent of crown lands found in the proper office, and 
 purporting to have been taken by a steward of the king's lands, 
 and following in its construction the direction of the stat. 4 Edw. I., 
 will be presumed to have *been taken under proper autho- r-ooon 
 rity, although the original commission cannot be found.' 
 
 To show, therefore, the authenticity of ecclesiastical terriers, it 
 must be proved that they were found in the proper repository, the 
 bishop's registry, or that of the archdeacon of the diocese ;" or 
 proof must be given to establish a connection between the terrier and 
 the place in which it was found. As against a prebendary of Lich- 
 field, a terrier found in the registry of the dean and chapter of Lich- 
 field was held to be admissible,^ on the ground that the terrier was 
 sufficiently connected with the place in which it was found, and be- 
 cause it was found annexed to an old and nearly cotemporary lease.'' 
 And a terrier from the custody of a person who was the owner of the 
 tithes of a district of the parish, has been held to be admissible.* 
 So terriers produced in support of a modus on the part of the land- 
 So it must be proved that records, when produced, come out of the proper 
 custody: 1 Stark. C. (2 E. C. L. R.) 183. 
 
 "■ Crompton v. Blake, 12 M. & W. 205; see Bishop of Meath v. Marquis of 
 Winchester, 3 Bing. N. C. (32 E. C. L. R.) 183 ; Doe v. Phillips, 8 Q. B. (55 E. 
 C. L. R.) 158. 
 
 * Earl V. Lewis, 4 Esp. C. 1. 
 
 ' Bowe V. Brenton, 8 B. & C. (15 E. C. L. R.) 737. 
 
 " Atkins V. Hatton, 2 Anstr. 386 ; Miller v. Foster, Ibid. 387, in note ; 4 Gwill. 
 1406, 1593. 
 
 * Miller v. Foster, 2 Anstr. 387, in note ; 4 Gwill. 1406, 
 y 4 Gwill. 1453. 
 
 * Tucker v. Wilkins, 4 Sim. 241. It is otherwise where the possession is 
 merely private, and unconnected with the subject-matter: Potts v. Durant, 4 
 Gwil. 1450. 
 
 ^ Where a book of records of the proprietors of common lands (the proprie- 
 tary being extinct) was produced by a person to whom it was delivered by his 
 grandfather's executor, who had the possession of it for thirty years, it was held 
 that the book was admissible in evidence : Tolman v. Emerson, 4 Mass. R. 
 160. G.
 
 293 DOCUMENTS OF A PUBLIC NATURE. 
 
 owners by the son of the registrar of the diocese who was also a 
 
 solicitor in general practice, and who stated that he got them from 
 
 the office where the general business of his father was carried on, 
 
 were held admissible, though there was a muniment room in the 
 
 cathedral, and it did not appear that the terriers had ever been 
 
 deposited there/ Yet one found in the charter-chest of Trinity 
 
 College, Cambridge, which had property in the parish, was held to be 
 
 inadmissible.'' 
 
 The king's sign-manual, authorizing the release of a prisoner, is 
 
 ^ , evidence to prove the legality of his being at large." *But, in 
 
 r 2941 . . a & ' 
 
 ^ " -■ general the certificate by the king of a matter of fact under 
 
 his sifjn-manual is not admissible in evidence.*^ 
 
 The license of the pope, during his supremacy in this kingdom, is 
 evidence of an impropriation. * So his bull has been admitted to show 
 that lands belonging to a monastery were discharged of tithes at the 
 time of the dissolution.^ But it is said that a copy of a bull is not 
 evidence.^ So an endowment by a bishop, under his seal,*" would be 
 evidence, if derived from the proper custody. 
 
 Certificates,' and other documents made by persons entrusted with 
 authority for the purpose, may also be considered as public docu- 
 ments, and they are evidence against all to the extent of the officer's 
 authority, of the facts which he is directed to certify, but not further.'' 
 For, where the law has appointed a person to act for a specific pur- 
 pose, the law must trust him as far as he acts under his authority.' 
 Therefore the endorsement of the officer upon a deed of bargain and 
 sale is evidence of its enrolment.™ And so is the indorsement on a 
 deed under the Mortmain Act." The chirograph of a fine is evidence 
 
 » CrougUon v. Blake, 12 M. & W. 205. 
 
 *> Atkins V. Hatton, 2 Anstr. 386 ; 4 Gwill. 1406. 
 
 " Milhr^s case, Leach, C. C. L., 3d edit. 69. 
 
 <» By Willes, L. C. J., in Omichund v. Barker, Willes 550; 2 Roll. Abr. 686, 
 H. Althouj^h in one old case such evidence was admitted, no exception being 
 taken: Ahignye v. Clifton, Hob. 213. 
 
 « Cope v. Bedford, Palm. 427 ; Gilb. Law of Ev. 69 ; Bac. Abr., Ev. F. 
 
 ' Lord Clanrickard'' s case. Palm. 38. 
 
 * Brett V. Ward, Winch. 70 ; but qu., ante. 
 
 ^ Potts V. Durant, 4 Gwill. 1450 ; 3 Anstr. 789. 
 
 ' See further, as to certificates, Vol. II., tit. Certificate. 
 
 ■^ Omichund v. Barker, Willes 549. 
 
 • B. N. P. 229. 
 
 " Kinnersley v. Orpe, Douf;. 57. 
 
 ° Under the Mortmain Act, 9 Geo. II. c. 3", the deeds conveying the lands 
 must be enrolled in the Court of Chancery within six calendar months after its
 
 CERTIFICATES — DOCUMENTS. 295 
 
 of *tbe fine, because the officer is appointed to give out ^ ^^ 
 
 . r 2951 
 
 copies of the agreements between the parties that are lodged '- ^ 
 
 of record. Wherever it is an essential part of the oflBcer's duty to 
 deliver out copies of a record, such copies are evidence." But if it 
 be not his duty, such certificates or copies are not evidence.'' Where 
 a court has, for its own convenience, appointed officers to make out 
 copies, such copies are evidence in that Court without further proof, 
 but not elsewhere. Thus an office copy of depositions is admissible 
 in equity, without examination Avith the roll, but is not receivable in 
 a court of law.** By the 7 & 8 Will. III., c. 7, s. 5, the entry in the 
 book kept by the clerk of the Crown for entering returns of members 
 to serve in Parliament, and alterations and amendments, or a copy 
 of so much as relates to the return, is made evidence thereof in an 
 action for a false or double return. So, by many other statutes, au- 
 thorized entries and documents, which will be noticed in their proper 
 places, are made evidence.'' 
 
 *With respect to all these and some other documents, it r:j:.oqf^-i 
 has been enacted by 8 & 9 Vict. c. 113, that " whenever by 
 
 execution. A conveyance of this kind was offered in evidence, having an in- 
 dorsement purporting to be a memorandum of the enrolment of the indenture in 
 Chancery on a certain day, and to be signed by one who was proved to be clerk 
 of the enrolment, although not so described in the indorsement. The Court 
 ascertained, by inquiry, that it was the practice in the Enrolment Office for the 
 officer, when he makes the enrolment, to deliver back the original deed with the 
 certificate of enrolment indorsed upon it, and held, that the indorsement was 
 evidence both of itself, and of the fact which it purported to state : Doe clem. 
 Williams and others v. Lloyd, 1 M. & G. (39 E. C. L. R.) 671 ; and see now the 
 statute, ante, p. 263. 
 
 " See Black v. Lord Brai/brooke, 2 Stark. C. (3 E. C. L. R.) 7, ]3 ; and see 
 below, tit. Judgments — Judicial Documents. 
 
 P Roberts v. Eddington, 4 Esp. 88 ; Setcell v. Corp, 1 C. & P. (12 E. C. L. R.) 
 392; Drake v. Marryat, 1 B. & C. (8 E. C. L. R.) 473 ; Waldron v. Coombe, 3 
 Taunt. 162 ; B. v. Seicell, 8 Q. B. (55 E. C. L. R.) 161 -, see Brown v. Thornton, 
 6 Ad. & E. (33 E. C. L. R.) 185. 
 
 1 B. N. P. 229 ; Black v. Lord Braybrooke, 2 Stark. C. (3 E. C. L. R.) 6 ; 
 Burnand v. Nerot] 1 Car. & P. (12 E. C. L. R.) 578 ; but see ante, p. 261. 
 
 *■ See 14 & 15 Vict. c. 6, s. 16, as to examinations under Mutiny Act ; also 5 & 
 6 Geo. IV. c. 84, s. 24, and 7 & 8 Geo. IV. c. 28, s. 11, as to certificates of indict- 
 ments and convictions. Where, upon a question as to the delivery of a cask of 
 whiskey, the court below had decided it upon the effect of extracts from the excise 
 book, and the certificate of a commissioner of excise, as to the accuracy of the 
 books from vrhich such extracts were taken, the House of Lords reversed the 
 judgment, as having been decided upon inadmissible evidence. Excise books, 
 as public documents, might be received ; or if, on account of public convenience, 
 the originals could not be produced, examined copies on oath might be pro- 
 duced : Dunbur v. Harvie, 2 Bli. 351.
 
 295 DOCUMENTS OF A PUBLIC NATURE. 
 
 any statute then or afterwards to be in force, any certificate, oflBcial 
 or public document, or document or proceeding of any corporation, 
 or joint-stock or other company, or any certified copy of any docu- 
 ment, by-law, entry in any register or other book, or of any other 
 proceeding, shall be receivable in evidence of any particular in any 
 court of justice, or before any legal tribunal, or either House of 
 Parliament, or any Committee of either House, or in any judicial 
 proceeding, the same shall be admitted in evidence, provided they 
 respectively purport to be sealed or impressed with a stamp, or 
 sealed and signed, or signed alone, as required, or impressed with a 
 stamp and signed, as directed by the respective Acts made or to be 
 hereafter made ; without any proof of the seal or stamp where a seal 
 or stamp is necessary, or of the signature, or of the official character 
 of the person appearing to have signed the same, and without any 
 further proof thereof, in every case in which the original record 
 could have been received in evidence. "° 
 
 Public registers, although not originally intended for the purposes 
 of evidence, are generally admissible in support of the facts to which 
 they relate, for they are made by persons in an official situation, whose 
 duty it is to make the entries accurately of the facts immediately 
 within their knowledge.' These are, the registers kept in churches," 
 
 » Sect. 1. 
 
 ' There are a great number of public books directed to be kept by various 
 statutes, which on these grounds are evidence ; a list of some of them may be 
 found, 2 Taylor on Ev., p. 1053. 
 
 ° These were originally instituted at the instigation of Lord Cromwell, who 
 (temp. Hen. VIII.) was Vicar-General to the King, and before whom all wills 
 to the value of 201. were to be proved. This appointment was afterwards con- 
 firmed by the injunction of Edward VI., who directed that the registering 
 should be in the presence of the parson and churchwardens, on a Sunday, and 
 that the book should be kept locked in the church, the vicar and churchwardens 
 having keys: see Salk. 281; Gilb. Law of Ev. 76. The Marriage Act, 26 Geo. 
 II. c. 33, 8. 14, directed that, immediately after the celebration of every 
 marriage, an entry thereof should be made in a register, in which it should be 
 expessed that the marriage was celebrated by banns or license ; and if both or 
 either of tlie parties married by license wore under age, with consent of parents 
 or guardians, as the case might be ; and should be signed by the minister with 
 his proper addition, and also by the parties married, and attested by two credi- 
 ble witnesses. This form, however, was directory only, and an examined copy 
 of a marriage regularly attested by one witness only, under this statute, was 
 admissible: Doc dem. Blayney v. Sewage, 1 C. & K. (47 E. C. L. R.) 487. By 
 the stat. 52 Geo. III. c. 146, s. 7, registers of baptism, marriages and burials 
 were directed to be kept by the officiating clergyman in a particular form, and 
 copies of these I'egisters, verified by the officiating minister of the parish, were
 
 [*298] 
 
 REGISTERS OF BAPTISMS, MARRIAGES, ETC. 297 
 
 *of baptisms, marriageSy^ and burials,'" and by the regis- r^i)nn-\ 
 
 trars of births, deaths, and marriages.^ ^ Although the 
 
 *entries are first made in a day-book of a church register, 
 
 such day-book is not evidence when the entry has been made 
 
 in the register/ And therefore, where in the day-book the letters B. 
 
 B. were added, which were explained to be base-born, but were not 
 
 added in the subsequent entry in the register, the court held that the 
 
 directed to be transmitted annually by the churchwardens, after they or one 
 of them should have signed the same, to the registrar of the diocese ; and these 
 provisions as to baptisms and burials, are still in force : see 6 & 7 Will. IV. c. 
 86, ss. 1 and 49. Provisions of a similar nature had been made by the canons 
 of 1603, but these prescriptions had fallen into disuse, see 3 Burn's Ecc. Law 
 459 ; Gibson's Codex 204; and Vol. II., tit. Marriage. 
 
 ' By 6 & 7 Will. IV. c. 86, the provisions before in force under 52 Geo. III. c. 
 146, and 4 Geo. IV. 76, are repealed from the 1st of March, 1837 ; but the pro- 
 visions as to baptisms and burials are continued, sects. 1 and 49. By that 
 statute, hoAvever, marriage registers are to be provided for every church and 
 chapel in vrhich marriages may be solemnized, and also for Quakers' chapels 
 and Jewish synagogues, in duplicate, one to be kept by the officiating clergy- 
 man or person, and the other to be returned to the registrar-general, see ss. 30, 
 31. A register of marriages kept in Barbadoes is evidence of a marriage, being 
 required by law to be kept, and an examined copy has been received in 
 evidence : Good v. Good, 1 Curt. 755. 
 
 ' Sid. 71 ; Godb. 145. 
 
 ^ By 6 & 7 Will. IV. c. 86, provisions are made for the registry of births, 
 deaths and marriages by registrars throughout the country, in a full form con- 
 taining various particulars given in the schedule to the Act, which are to be sup- 
 plied by various persons within a certain time,. and under certain penalties for 
 giving false information. A general register office for England is established 
 in the metropolis, and by s. 38, the Registrar-General is to cause " to be sealed 
 or stamped with the seal of the register office all certified copies of entries given 
 in the said office ; and all certified copies of entries purporting to be sealed or 
 stamped with the seal of the said register office shall be received as evidence of 
 the birth, death or marriage to which the same relates, without any further or 
 other proof of such entry ; and no certified copy purporting to be given in the 
 said office shall be of any force or efi'ect which is not sealed or stamped as 
 aforesaid." 
 
 y May V. May, Str. 1073. per Probyn and Lee, Js., Page, J., dissentiente : see 
 Walker v. Wingjield, 18 Ves. 443. 
 
 ^ As to the admissibility of such registers or sworn copies see 5 Peters 470; 
 Kingston v. Lesley, 10 S. & R. 383 ; Hyam v. Edwards, 1 Dall. 2 ; Stoever v. 
 Whitman's Lessee, 6 Binn. 416; Sumner v. Sebec, 3 Greenl. 223; Wedgicood^s 
 case, 8 Greenl. 75 ; Marti7i v. Gunhy, 2 Harr & John. 248 ; Jackson v. King, 5 
 Cow. 237 ; Jackson v. Boneham, 15 Johns. 226. Entries in a family Bible are 
 admissible to prove the deaths of members of the family : Hunt v. Johnson, 19 
 N. Y. 279.
 
 298 DOCUMENTS OF A PUBLIC NATURE. 
 
 entry in tlie register could not be controlled or altered by the entry 
 in the day-book, for there could not be two registers in the same 
 parish.^ An entry in the register of baptism by a minister, of the 
 baptism of a child which had taken place before he became minister, 
 and made on the information of the clerk, is not admissible evidence, 
 neither is the private memorandum of the clerk, who was present at 
 the baptism ;* nor is a parish register produced by the parish clerk 
 without explanation of his possession of it, for it is not produced from 
 the *proper custody, parish registers being directed by statute 
 '- "^ -^ to be kept by the clergyman.'' 
 
 A register is evidence, even between strangers, as to the time of 
 marriage.'' And a statement in the church register that a child was 
 base-born has been received in evidence.^ But the church register 
 is no proof of the identity of the parties ;° nor is it evidence that a 
 party was of the particular age stated in the register/ nor, without 
 evidence to show that the party was young when christened, is it evi- 
 dence that he was born within the parish. 
 
 The books of the Fleet Prison are not admissible in evidence to 
 prove a marriage, for they are not made under public authority.^ 
 
 ^ May V. Maij^ Str. 1073 ; Lee v. Meecock, 5 Esp. C. 177. If the entry in the 
 day-book, which represented the plaintiff to be illegitimate, had been made 
 under the direction of the reputed father and mother, the evidence "would, it 
 seems, have been admissible as the declaration of a deceased parent. In the 
 absence of such evidence, it appeared to be nothing more than a private 
 memorandum, made for the purpose of assisting the clerk to make up the 
 registei'. 
 
 « Doe V. Brmj, 8 B. & C. (15 E. C. L. R.) 813. 
 
 " Doe dem. Arundle v. Fowler, 19 L. J., N. S., Q. B. 151. 
 
 " Doe v. Barnes, 1 M. & Rob. 386. 
 
 ** Cope V. Cojje, 1 M. & Rob. 269 ; being evidence of reputation. It was there 
 said that similar evidence had been received in a prior case : Morris v. Davis, 
 3 Car. &P. (14 E. C. L. R.) 215. 
 
 "Birt V. Barloiv, 1 Doug. 170; Bain v. Masoti, 1 C. & P. (12 E. C. L. R.) 202; 
 Barber v. Holmes, 3 Esp. 190: see tit. Polygamy — Marriage. As to how the 
 identity may be proved, see Sar/er v. Glossop, 2 Ex. 409. 
 
 ' Wihen v. Law, 3 Stark. (3 E. C. L. R.) 63 ; E. v. Clapham, 4 Car. & P. C. 
 (19 E. C. L. R.) 29 ; R. v. North Petherton, 5 B. & C. (11 E. C. L. R.) 508 ; 
 Burfjhart v. Anr/erstein, 6 C. & P. (25 E. C. L. R.) 690; Duins v. Donovan, 3 
 Hag. 301; li. V. Luhhenham, 5 B. & C. (11 E. C. L. R.) 968; R. v. St. 
 Katherine, Ibid. 970. But under the Registration Act, if the place of birth or 
 death be added by direction of the Registrar-General, the register, it would 
 seem, is evidence thereof: 6 & 7 Will. IV. c. 86, s. 38 ; 7 Will. IV. & 1 Vict. c. 
 22, 8. 8. 
 
 « Reed v. Passer, Pcake, C. 231 ; Doc dem. Orrel v. Madox, 1 Esp. 197 ; Uatj-
 
 REGISTERS OF BAPTISMS, MARRIAGES, ETC. 300 
 
 Nor is the copy of a register *of a forei^rn chapel admissi- ^ . 
 
 ble here to prove a marriage abroad.'' Nor a copy of an ^ J 
 entry in the book kept at the British Ambassador's in Paris, wherein 
 his chaplain makes and subscribes entries of all marriages celebrated 
 by him.' Neither is the copy of a register of baptism in Guernsey ;•* 
 nor the register of a dissenting chapel.'' Nor an entry of the cir- 
 cumcision of a Jewish child, made in a book kept in the synagogue 
 by the Chief Rabbi, since deceased, who performed the rite, which 
 entry was made in the course of his duty.^ But by stat. 3 & 4 Vict. 
 c. 92, certain registers of births, baptisms, deaths, burials and mar- 
 riages, are directed to be deposited with the Registrar-General, and, 
 subject to certain provisions as to giving notice to the opposite party, 
 are *made evidence in all cases ; and certified extracts, sub- 
 ject to similar provisions, are likewise, except in criminal 
 
 [*301] 
 
 wood V. Firmin, Peake, C. 23^ ; Hoioard v. Burtonwood, Ibid. n. ; Cooke v. 
 Lloijd, Ibid. ; Doe v. Gatacre, 8 C. & P. (34 E. C. L. R.) 578. But, semhle, that 
 on a question o( pedigree, the books of the Fleet are evidence to show the name 
 by which a woman passed when she was married there : Lawrence and others 
 V. Dixon, Peake 136; 1 Esp. 213. And in Doe v. Lloyd, Shrewsb. Sum. Ass., 
 Heath, J., admitted them in evidence : see Peake Ev. 87. These books, and 
 the i-egisters of marriages performed at the King's Bench Prison, at May Fair, 
 and the Mint, &c., have been purchased by government, and are deposited in 
 the office of the Registrar-General, under 3 & 4 Vict. c. 92, but by express ex- 
 ception (ss. 6 and 20) are not thereby made receivable in evidence. The Fleet 
 Books contain the original entries of marriages solemnized in the Fleet Prison 
 from 1686 to 1784 ; Phillips on Ev., Vol. II., p. 595, 9th ed. 
 
 ^ Leader v. Barry, 1 Esp. 353 ; see further, Vol. II., tit. Marriage. 
 
 ' Athlone Peerage, 8 CI. & Fin. 262. As to proof of foreign marriages, see 
 infra, note. 
 
 J Huet V. Le Mesurier, 1 Cox 275 ; but see as to this, 1 Curt. 766. 
 
 ^ For it is not a public document: Newham\. Baithhy, Phill. 315. A register 
 of baptism of the child of a dissenter (twenty -five years after the alleged birth), 
 containing the words, " said to be born," &c., being mere hearsay and informa- 
 tion, and. therefore of no assistance in establishing the fact, was refused to be 
 allowed to remain as a part of the proceedings : Duins v. Donovan, 3 Hag. 
 301. An entry of the birth of a dissenter's child, in a book kept at Dr. Wil- 
 liam's Library in Redcross Street, was held to be inadmissible evidence : Ex 
 parte Taylor, 1 J. & W. 483. The books of baptisms, marriages and deaths iu 
 India, must be brought from their place of deposit at the India House : Taylor 
 on Ev. 1055. In order to establish the determination of a life estate, hearsay 
 evidence of the death of the cestui que vies is not, as in a case of pedigree, suf- 
 ficient ; nor is the register of a dissenting chapel, or an inscription on a tomb- 
 stone in the adjacent burial ground, receivable : Whittuck v. Waters, 4 C. & P. 
 (19 E. C. L. R.) 375. 
 
 • Davis V. Lloyd, 1 C. & K. (47 E. C. L. R.) 275.
 
 301 DOCUMENTS OF A PUBLIC NATURE. 
 
 P^qA9-i proceedings, rendered evidence in every court of justice."* 
 
 *The rule as to proof of marriages, &c., by the registers in 
 
 the absence of living witnesses has been held not to apply to Ireland, 
 
 where such registers have not been duly kept." But now certified 
 
 "'Under this statute, (see 9 Car. & P. (38 E. C. L. R.) 793), the following 
 registers have been made evidence : 
 The Registers of the French Churches in Enghmd, commencing in the year 1567. 
 
 " German Chapels " " " 1669. 
 
 '' Dutch Chapel Royal " " " 1689. 
 
 " . Swiss Church " " " 1762. 
 
 " Presbyterians throughout Eng- 
 
 land and Wales, " '< 1642. 
 
 " Independents, " " 1644. 
 
 " Baptists, " " 1642. 
 
 " Scotch Churches in England, " " 1758. 
 
 " Society of Friends throughout 
 
 England ^nd AVales, " " 1644. 
 
 " Wesleyan Methodists, ♦ " " 1772. 
 
 " Methodists, New Connection, " " 1787. 
 
 *< Primitive Methodists, " " 1813. 
 
 " - Bible Christians, " " 1817. 
 
 " Inghamites, '• " 1753. 
 
 " Moravians, , " " 1742. 
 
 " Lady Huntingdon's Connection, " " 1752. 
 
 " Calvinistic Methodists, " " 1762. 
 
 " Swedenborgians throughout 
 
 England and Wales, " " 1787. 
 
 The Registers from Dr. William's Library in Red- 
 cross Street, «' " 1742. 
 
 " The Paternoster Row Registry, " " 1808. 
 
 The Bunhill Fields' Register, " " 1713. 
 
 The Registers of the Liverpool Necropolis, " " 1825. 
 
 " Deadman's Place Cemetery, 
 
 Southwark, " " 1738. 
 
 " Leeds Cemetery, " " 1835. 
 
 " Walworth Burial Ground, " " 1819. 
 
 " Ecclesall Cemetery, " " 1834. 
 
 " Norwich Cemetery, " " 1821. 
 
 " Roman Catholic Chapels of 
 
 about one-third of England. 
 The sections, which provide for the admission of the originals or certified copies 
 of these registers, are the 9th to the 19th. By these, notice must be given by 
 the one party to the other, either at law or in equity, of his intention to use the 
 particular matter in evidence, and a certified extract must be sent a reasonable 
 time before tlie trial or hearing. A certified copy under the seal is rendered 
 sufficient evidence in all save criminal cases, in which cases the original must 
 be produced. These provisions are too long to insert in full. 
 
 ° Vaux Peerage, 5 CI. & Fin. 526 ; Earl of EoscommQn' s claim, 6 CI. & 
 Fin. 07.
 
 REGISTERS — UOAV PROVED. 302 
 
 copies of the register of marriages in Ireland, deposited in the Gene- 
 ral Register Office in Dublin, are evidence," and moreover the regis- 
 ters of marriages kept by consuls abroad, and copies of them trans- 
 mitted to the Registrar-General in England, as well as certified 
 copies of them, are now rendered admissible in evidence. ^ 
 
 An entry in a register, like any other public document, may be 
 proved by means of an examined copy;'^^ and it is of course unne- 
 
 "7 &8 Vict. c. 81, ss. 52, 71. 
 
 P By 12 & 13 Vict. c. 68, consuls abroad are authorized to solemnize marriages, 
 of which (s. 11) they are to keep a re.irister in duplicate ; one' copy is to be (s. 
 12) presented to the Registrar of Births, Marriages and Deaths in England ; 
 and (s. 18) that Act is to be taken as part of 6 & 7 Will. IV. c. 86, and every 
 consul shall be deemed a registrar under that Act ; and all provisions of that 
 Act relating to any registrar, or register of marriages, or certified copies thereof, 
 shall be taken to extend to the registers of marriages under this Act, and to the 
 certified copies thereof, so far as the same are applicable thereto. In any action 
 or suit for foreclosure, or prosecution for perjury under the Act, the declaration 
 and certificate of the consul, under his hand and consular seal (s. 17) is rendered 
 good evidence. 
 
 •1 Birt V. Barlow, 1 Doug. 173. " They are in the nature of recoi'ds, and need 
 not be produced or proved by subscribing witnesses :" per Lord Mansfield, Ibid. ; 
 see 52 Geo. III. c. 146, s. 17. Qu., however, whether they can be proved by oral 
 evidence : per BuUer, J., 2 Evans's Poth. 139. 
 
 ^ A copy of the register of the births and deaths of the Society of Quakers 
 in England, proved before the Lord Mayor of London, was admitted in evidence 
 in Pennsylvania, to prove the death of a person : Lessee of Hyavi v. Edwards, 
 1 Dall. 2. So the registry of any religious society in that State, is evidence by 
 statute ; but it must be proved at common law. A copy certified under the seal 
 of the corporation is not evidence: Stoever v. Lessee of Whitman, 6 Binn. 416. 
 In North Carolina, a parish register of marriages, births and deaths, kept pur- 
 suant to a statute of that State is good evidence to prove pedigree, and that the 
 several persons whose pedigree is thus proved, are within the savings of the 
 Statute of Limitations : Jacocks v. Gilliam, 2 Murphy 47. The record of a bap- 
 tism, made by a parish minister, who was dead, has been received in evidence 
 in Connecticut : Huntley v. Comstock, 2 Root 99. And in Massachusetts, a 
 certified copy of the record of the clergyman or justice of the peace is constantly 
 admitted in evidence to prove a marriage. A sworn copy of the records of a 
 town in Connecticut, wherein were contained the date of tlie marriage of the 
 parents of the plaintiff, and the time of the birth of their children, was held to 
 be admissible evidence by the Supreme Court of New York : Jackson v. Boneham, 
 15 Johns. 226. A copy of such record certified by the clerk of the town, if 
 within the State is received in evidence without objection, in Massaebnsetts. M. 
 
 A book found in the nands of the town clerk and purporting to be a record of 
 births and marriages in the town, has been held in Maine to he prima facie 
 evidence of the facts it contains, as for example of the age of a person : Sumner 
 V. Sebec, 3 Greenl. 223. ' I. 
 
 As to family records see North Brookfield v. Warren, 82 Mass. 171. In order
 
 302 DOCUMENTS OF A PUBLIC NATURE. 
 
 cessary to give any proof by means of the subscribing witnesses, 
 or to prove their handwriting, although the register be produced.' 
 Even where the object is to prove the identity of a person named 
 in the register,' and this is done by a witness who swears to 
 |-^qAq-i *li'S handwriting in the register, an examined copy is suffi- 
 cient. It has been held at Nisi Prius,' that annual returns 
 made to the registry of the diocese, according to the requisitions of 
 the 70th canon, are admissible only as secondary evidence, but that 
 returns made under the stat. 52 Geo. III., c. 146, would be prov- 
 able by examined copies of originals. A copy taken from a book 
 produced by the parson of a parish, as being the parish register, 
 upon application made to him for it, will be sufficient." But if to 
 such application he reply that there is no such register for the par- 
 ticular year, that will not be evidence of loss sufficient to let in 
 secondary evidence.'^ Entries in registers kept under the General 
 Registry Act may be proved by certified copies under the office 
 seal.'" 
 
 Other parish books are also receivable in evidence in certain 
 cases ; thus, in an action for the disturbance of the plaintiff in the 
 use of his pew at church, an old entry made in the vestry-book by 
 the churchwardens, stating that the pew had been repaired by the 
 owner of a messuage under whom the plaintiff claimed, was ad- 
 mitted as evidence of the right, having been made as to a fact within 
 the scope of the churchwarden's office, and being evidence of the 
 reputation in the parish as to the right. "^ An entry in a vestry-book 
 
 "" Birt V. Barloic, Doug. 173 ; see Drake v. Smyth, 5 Price 369. 
 
 ' Sai/er v. Glossop, 2 Ex. 409. 
 
 * Walker v. Beauchamp, 6 C. & P. (25 E. C. L. R.) 552 ; Wihen v. Law, 3 
 Stark. (3 E. C. L. R.) 63; Doe dem. Wood v. Wllkins, 2 Car. & K. (61 E. C. L. 
 R.) 328. 
 
 " Walker v. Beauchamp, 6 C. & P. (25 E. C. L. R.) 552. But a copy of a book, 
 produced simply by the clerk, would not be ; supra, note. 
 
 " Ibid. 
 
 ' See ante, p. 297, note (x) ; p. 302, note (o), {]}) ; p. 301, note (w), where see 
 an exception. 
 
 "^ Price V. Littlewood, 3 Camp. 288 ; see Vol. II. tit Pew. 
 
 to render admissible an entry of births or deaths in a family Bible or record, 
 the decease of the parent making it must be shown: Greenleafv. Dubuque R. 
 It. Co., 30 Iowa 301. A church record of baptisms is admissible : Kennedy v. 
 Doyle, 10 Allen 101. An entry in a parish register of a child's baptism is not 
 ♦;videnco of the identity of such child; nor is the recital in such entry of the 
 oliild's age sufficient evidence thereof to support a plea of infancy : Morrissey v. 
 Wiyyins Ferry Co., 47 Mo. 521.
 
 REGISTERS — HOW PROVED — PARISH BOOKS. 303 
 
 has also been admitted to prove an averment in an indictment for a 
 libel, that the prosecutor liad been elected treasurer at a vestry duly 
 held in pursuance of notice/ An ohl book produced by a church- 
 warden from tlie parish chest, in which the names of the surveyors 
 *of the highways were stated, was received by Coleridge, J., r^onj.-! 
 to prove who Avere surveyors at that time." 
 
 But on an appeal, the respondents, in order to prove the fact of 
 the delivery to them of a certificate given by the appellants, 
 acknowledging the pauper to be their settled inhabitant, produced an 
 old book from their own parish chest, in which was an entry of that 
 fact in the handwriting of a former parish oflScer. It was held 
 that such evidence was inadmissible, being a matter discharging 
 his own parish.* 
 
 An old entry in a vestry-book is not admissible on the part of the 
 parishioners to show that they have the right concurrently with the 
 rector to elect to a parish office, there being nothing to show that the 
 rector was present at the meeting.^ But such entries at meetings 
 where the rector was present are receivable." 
 
 By the 17 Geo. II., c. 38, s. 13, copies of all rates and assessments 
 for the relief of the poor are to be kept in a book by the church- 
 wardens and overseers of every parish, which is to be kept in a 
 public place in the parish, and to be produced at the sessions, 
 when any appeal is to be heard. In the case of the Zoiich peerage, 
 a parish book of rates and loans was admitted as evidence of the 
 existence and residence of a party in the parish in the year 1649, 
 by the entry of the payment of her subscription to a parish loan in 
 tJjat year.** 
 
 By the 42 Geo. III., c. 46, the churchwardens and overseers® are 
 to keep a book containing the names of all *parish apprentices, 
 and of the other particulars required by the Act ; the entries ^ J 
 
 7 E. V. Martin, 2 Camp. C. 100. 
 
 ' R. V. Inhabitants of Pembridge, Car. & M. (41 E. C. L. R.) 157. 
 
 * R. v. Dehenham, 2 B. & A. 185. 
 
 ^ Harthij V. Cooke, 5 C. & P. (24 E. C. L. R.) 441. 
 
 " Ibid. ; and extracts from the register of the Bishop of the diocese were read 
 to prove the same appointments. 
 
 * Printed Evidence 162. Entries by a churchwarden not made in the course 
 of his official duty, and by which he does not charge himself, are not admissible : 
 Cooke V. Bankes, 2 C. & P. (14 E. C. L. R.) 478 ; Taylor v. Devey, 7 Ad. & E. 
 (34 E. C. L. R.) 409. 
 
 * By 2 Geo. III. c. 22, a register of all infants in workhouses within the Bills 
 of Mortality, with their names, ages and other description, was also directed 
 to be kept by these oflScers.
 
 305 DOCUMENTS OF A PUBLIC NATURE. 
 
 are to be signed bj the justices wbo assent to the indentures ; and when 
 the latter are proved to have been destroyed or lost, such register is to 
 be deemed sufficient evidence in all courts of law in proof of the ex- 
 istence of such indentures, and of the other particulars specified in the 
 register ; and each entry, if approved, is to be signed by the justices, 
 and such book may be inspected at all seasonable hours, and a copy 
 taken, if the indentures are lost or destroyed. 
 
 The register of the Navy Office, made up from the captains' returns, 
 with proof of the method there used to enter all persons dead with 
 the letters D d, is evidence of such death. ^ And so is the muster- 
 book transmitted by the officers of the ship to the Navy Office.^ 
 The book kept at the Sick and Hurt Office, in which are copied the 
 different returns made by the officers of the navy, of persons dying 
 on board, is evidence to show the time of a seaman's death.^ So the 
 log-book of a man-of-war which convoyed a fleet, is evidence to prove 
 the time of sailing.' ^ *But the log-book of a merchantman 
 L -^ can only be used by a witness to refresh his memory, with 
 respect to a fact which he remembers to have seen there at a time 
 when he had a clear recollection of the circumstance.-" Where a statute 
 required that every vessel engaged in the whale fishery should carry 
 
 f B. N. P. 249 ; Bac Abr., Ev. F. ; R. v. Rhodes, Leach, C. C. L. 4th ed. 24 ; 
 R. V. Fitzgerald and Lee, Ibid. 20. 
 * R. V. Fitzgerald and Lee, Leach, C. C. L. 20 ; R. v. Rhodes, Ibid. 24. 
 ^ Wallace, Administrator, v. Cooke, 5 Esp. C. 117. But where the wife of ^. 
 
 B. obtains goods after stating that her husband is dead, it is not a suiBcient 
 answer to an action for the amount, to show, by the muster of a ship from the 
 Admiralty, that a person of the name of A. B. was living at the time : Barber 
 V. Holmes, 3 Esp. C. 190; Kenyon, C. J., 1800. As to the books at Lloyd's, see 
 Ahel V. Potts, 3 Esp. C. 242, and Vol. II., tit. Policy. 
 
 ' D'' Israeli v. Jowett, 1 Esp. C. 427. Such log-book and the official letter of 
 the commander to the Admiralty were read without objection, as proof that the 
 fleet encountered a storm, and that a particular vessel parted company : Watson 
 and another, Administrators of Maxivell v. King, 4 Camp. 272, Ellenborough, 
 
 C. J., 1815; Barber v. Holmes, 3 Esp. 190. So lists of convoy: Richardson v. 
 Hellish, 2 Bing. (9 E. C. L. R.) 241. 
 
 J Burrough v. Martin, 2 Camp. 112. 
 
 The log-books of merchant-ships are now regulated by the Mercantile Marine 
 Act 1850; 13 & 14 Vict. c. 93, s. 85. They are to be kept in a form sanc- 
 tioned by the Board of Trade, and certain entries are to be made in thorn under 
 a penalty. 
 
 ' The log-l)ook, kept by the mate, is not evidence on an indictment against 
 the crew for a revolt and cunfiiiing the master: United States v. Sharp et al., 
 Peters' C. C. 119. M.
 
 BOOKS, ETC., OF PUBLIC OFFICES. 306 
 
 out an apprentice for every fifty tons, and that the same shouhl be 
 verified by the master, mate and two of the mariners, it was held that 
 an affidavit verifying a muster-roll, upon which it appeared that a cer- 
 tain number of apprentices Avas on board when the vessel cleared out,, 
 IS, primd facie evidence that such apprentices were on board when the 
 vessel sailed.^ So a copy of an official document, made in pursuance 
 of an Act of Parliament, containing' the names, capacities, and de- 
 scriptions of passengers transmitted by captains in the India trade 
 to the Court of Directors, was held to be good proof of such persons 
 being on board. ^ 
 
 Excise-books are public documents.™ In R. v. Grimwood^ it was 
 held that excise-books transcribed from the maltster's specimen-paper 
 were admissible evidence against him without calling the officers to 
 substantiate them, even although they were charged to be fraudulent 
 and collusive, without proof given that they were so. The custom- 
 house copy of the searcher's report, produced by the officer in whose 
 custody it is lodged, is evidence of the actual shipment of the goods 
 therein specified." But a shipping entry at the Custom House, al- 
 though *for some purposes a public document, is not evi- ^ . 
 
 . r*3071 
 
 dence to affect the person whose duty it was to cause the entry ^ J 
 
 to be made, criminally ; the note from which the entry had been made 
 by the office having been accidentally destroyed. p Books and official 
 documents kept at the Stamp Office under certain Acts,** and the 
 Merchant Seaman's Register Office,"" are public documents, and ad- 
 missible to prove the matters which in the course of duty are recorded 
 therein. 
 
 Under the Mercantile Marine Act,^ upon complaint by the master, 
 any of the mates, one-third of the crew, or the consignee of any ship, 
 in case it be out of her majesty's dominions, a court is to be consti- 
 
 ^ Lacon v. Hooper, 1 Esp. C. 246. 
 
 ' Richardson v. MelUsh, 2 Bing. (9 E. C. L. R.) 229 ; see 3 & 4 Will. IV. c. 
 92, s. 3 ; and see Huntley v. Donovan, 15 Q. B. (69 E. C. L. R.) 96. 
 
 ■" Fuller V. Fotch, Garth. 346. 
 
 " 1 Price 369. 
 
 ° Tomkins v. Attorney-General, 1 Dow. 404; Johnson v. Ward, 6 Esp. C. 47. 
 Note, that the paper was proved to have gone with the ship. 
 
 P Hughes v. Wilson, 1 Stark. C. (2 E. C. L. R.) 179. So a captain's report to 
 the Custom House, 15 Q. B. (69 E. C. L. R.) 96. 
 
 1 7 & 8 Vict. c. 113, ss. 19, 20; 6 & 7 Will. IV. c. 76, s. 8. 
 
 n &% Vict. c. 112, 8. 25 ; 5 & 6 Will. IV. c. 19, s. 19. There are also other 
 regulations of a similar kind, which will be noticed under the heads to which 
 they belong. 
 
 M3 & 14 Vict. c. 93, s. 82. 
 19
 
 307 DOCUMENTS OF A PUBLIC NATURE. 
 
 tuted in manner there prescribed, which may hear complaints, and 
 discharge any seaman, or supersede the master. The report of the 
 proceedings and evidence taken before this court is to be sent to the 
 Board of Trade; and if it purport to be signed by the senior officer 
 of the Court, and sealed with the consular seal, and be produced out 
 of the custody of the Board of Trade or its officers, it shall be ad- 
 mitted as evidence. 
 
 The entry of the contract in the book of the clerk of the coal 
 market in London is not evidence of the sale under 47 Geo. III., 
 sess. 2, c. 68, s. 29, unless the buyer be proved aliunde to have 
 signed the contract; although the Act directs that all contracts for 
 the sale of coals shall be signed by the buyer and the factor, that 
 the factor shall deliver a copy to the clerk, who shall enter it in a 
 book, and although the 32d section makes such *entries evi- 
 L ' J dence in all cases, suits and actions touching anything done 
 in pursuance of the Act.' 
 
 Rolls of Courts Baron are also regarded as public documents," 
 and the bill of cravings of a sheriff entered, and allowed, and of 
 record in the Exchequer, was held admissible evidence upon a ques- 
 tion of the duty of the sheriff of the county.'' 
 
 The poll-books at an election for members in Parliament are evi- 
 dence in a penal action for bribery.'^ So the daily book kept by the 
 keeper of Newgate, and the books of the Queen's Bench and Fleet 
 prisons, are evidence to prove the dates of the commitments and dis- 
 charges of prisoners,^ although the entries are sometimes made from 
 the information of the turnkeys, and the indorsements upon the 
 Avarrants.^ But they are not evidence of the cause of commitment, 
 the commitment itself being the best evidence.^ And it seems that 
 they are not strictly public documents, so as to warrant the reception 
 
 » Brown v. Capel, M. & M. (22 E. C. L. R.) 374. 
 
 " B. N. P. 247 ; Doe d. Askew v. Askew, 10 East 520 ; Breeze v. Raivker, 14 
 Sirn. 3";0. 
 
 ^E. V. Antrohus, G C. & P. (25 E. C. L. R.) 784. 
 
 " Mead v. Robinson, Willes 422 •, R. v. Hughes, cited Ibid. ; R. v. Davis, 2 
 Stra. 1048; 6 & 7 Vict. c. 18, ss. 93, 96. By s. 94, office copies are made 
 evidence ; and see R. v. Ledgard, 8 Ad. & E. (35 E. C. L. R.) 535. 
 
 « R. V. Aickles, Leach, C. C. L., 4th ed. 438 ; 8 B. & P. 188. 
 
 y Salte V. Thomas, 3 B. &P. 188; on the ground that it had been the constant 
 and eHtal)lished practice of the keepers of public prisons to register the discharge 
 of prisoners in such books. 
 
 * Ibid. Tills case, therefore, and some others of a similar nature, do not rest 
 upon the ground that the entry was made by an authorized officer.
 
 BOOKS, ETC., or PUBLIC OFFICES. 308 
 
 of a copy in evidence, since the gaoler is not required to make such 
 entries, but does it for bis own information and security.* 
 
 *Tbe books of tbe Bank of England are evidence to prove r:f:qAQ-i 
 the transfer of stock.'' The book kept in tbe master's office 
 in the Court of King's Bench is evidence to prove that a particular 
 person is an attorney of the court.* 
 
 The bishop's register was held to bo admissible to establish a 
 custom as to tbe nominating a curate,** and so a collation to a bene- 
 fice from the Bishop's Registry, to prove the exercise of the right to 
 collate.® 
 
 So the corporation books concerning the government of a city or 
 town, where they have been publicly kept, and the entries have 
 been made by a proper officer, are admissible evidence of the facts 
 witnessed in them.^ But the entry in the public books of a corporation 
 is not evidence for the corporation, unless it be an entry of a public 
 nature.^ 
 
 A book kept by order of the chancellor was held to be good 
 secondary evidence of the allowance of a certificate of bankruptcy; 
 but a book kept in the office of the secretary of bankrupts, without 
 
 * Ibid. And it is difficult to see on what ground they are evidence at all, 
 unless the persons who made the entries were shown to be dead, when they 
 might be treated as entries made in the course of business. Thus the register 
 of attendances and of reports relative to sickness kept by the medical officer of 
 a Poor-Law Union, in obedience to rules made by the Poor-Law Commissioners 
 under 4 & 5 Will. IV. c. 75. s. 15, is not receivable : Merrick v. Waklei/, 8 Ad. 
 & E. (35 E. C. L. R.) 170. ' 
 
 *• Marsh v. Colnett, 2 Esp. C. 605 ; Breton v. Cope, Peake, C. 43. 
 
 ' i?. V. Crosslei/, 1 Esp. C. 526 ; and see Jones v. Stevens^ 11 Price 235. 
 
 ^Arnold v. Bishoi^ of Bath and Wells, 5 Bing. (15 E. C. L. R.) 316. A 
 faculty by Archbishop of Canterbury to inhabitants of F., to christen and bury 
 there, is evidence to show that F. is not a parish : Isham v. Wallace, 4 Sim. 25. 
 Extracts from the Bishop's register of the appointment to parish offices are 
 evidence to show the right exercised by the parishioners concurrently with the 
 rector: Hartley v. Cooke, 5 C. & P. (24 E. C. L. R.) 441 ; and see Bishop of 
 Meath v. Belfield, 1 Wils. 215 ; Bullen v. Michel, 2 Price 399. See further, as 
 to Bishop's books: Humble v. Hunt, Holt's C. (3 E. C. L. R.) 001 ; Coombs v. 
 Coether, M. & M. (22 E. C. L. R.) 398. 
 
 « Irish Society v. Bishop of Derry, 12 CI. & F. 641. 
 
 ^ R. V. Mothersell, 1 Stra. 93; Thetford case, 12 Vin. Abr. 90, pi. 16; R. v. 
 Mayor, &c., of Liverpool, 4 Burr. 2244 ; see also Breton v. Cope, Peake, C. 43 ; 
 Warriner v. Giles, 2 Stra. 954. 
 
 ^ Marriage v. Lawrence, 3 B. & Aid. (5 E. C. L. R.) 142 ; although the corpo- 
 ration be sued by one of its members : Hill v. Manchester and Salford Water- 
 u-orks Company, 5 B. & Ad. (27 E. C. L. R.) 866.
 
 310 DOCUMENTS OF A PUBLIC NATURE. 
 
 such order, is not admissible.'' *Books in the office of clerks 
 L -"of the peace of enrolments of deputations of game-keepers 
 for a manor, are admissible to prove the exercise of manorial rights, 
 without proof of the loss of the original deputations, and that the 
 game-keepers acted under them.' 
 
 The registry-* of a ship is evidence to negative ownership, since no 
 one can be an owner who is not registered as such;*" but the registry 
 is not necessarily proof of ownership, without showing the privity of 
 the party, since the entry may have been made by a stranger for the 
 r*^i1l purpose of fraud;^ and even against the party proved to 
 *have made or authorized the registration, the registry 
 merely proves the legal ownership; and in an action for repairs, the 
 party may prove that he has in fact parted with his interest, and 
 ceased to interfere in the management of the ship."' On the same 
 
 ^ Heiinj V. Leigh, 3 Camp. C. 499. 
 
 i Hunt V. Andrexos, 3 B. & Aid. (5 E. C. L. R ) 341. 
 
 J The oaths and declarations required, by 8 & 9 Vict. c. 89, s. 43, to be made 
 by the owners of vessels, and the books of registry themselves, required to be 
 kept by the collectors and comptrollers, may be proved by examined copies or 
 extracts without the attendance of the registering officer, but this does not 
 render them evidence of the facts against third persons ; and see 12 & 13 Vict, 
 c. 29. And now by 14 & 15 Vict. c. 99, s. 12, " every register of a vessel kept 
 under any of the acts relating to the registry of British vessels may be proved 
 either by the production of the original or an examined copy thereof, or by a 
 copy thereof purporting to be certified under the hand of any person having the 
 charge of the original^" and " every such register, or such copy of a register, 
 and also every certificate of registry granted under any of the acts relating to 
 the registry of British vessels, and purporting to b6 signed as required by law 
 shall be received as prima facie proof of all the matters contained or recited in 
 such register when the register or such copy thereof as aforesaid is produced, 
 and all matters contained or recited in or indorsed on such certificate of regis- 
 try when the certificate is produced." 
 
 ^ Camden v. Anderson, 5 T. R. 709 ; 14 East 229 ; Marsh v. Eohinsnn, 4 Esp. 
 C. 98 ; Firie v. Anderson, 4 Taunt. G52 •, Flower v. Young, 3 Camp. 240 : Abbot 
 on Shipping, eh. ii., p. 27. 
 
 ' Tinkler v. Walpole, 14 East 226 ; Smith v. Fnge, 3 Camp. 456 ; Fraser v. 
 Hopkins, 2 Taunt. 5 ; 'feed v. Martin, 4 Camp. 90 : Cooper v. South, 4 Taunt. 
 802; IHtchhurn v. Spracklin, 5 Esp. C. 31. In an action for stores furnished 
 for a ship by the captain's order, the register purporting to have been obtained 
 by ail tiie defendants, on the oath of one of them, was held to be prima facie 
 evidence to charge them as owners : Stokes v. Came and others, 2 Camp. 339. 
 In trover for a sliip, if the plaintiff produce the original register, and attempt, 
 unsuccessfully, to deduce a title under it, it has been said he cannot afterwards 
 rely upon his possession : Sherriff v. Cadell, 2 Esp. C. 617, Kenyon, C. J., 1798. 
 "' Curling v. Robertson, 7 M. & Gr. (49 E. C. L. II.) 336 ; Young v. Brander, 
 8 East \i) ; Jennings v. Grijilhs, Ry. & M. (21 E. C. L. R.) 42 ; M'lver v. Hum- 
 ble, 16 East 109.
 
 BOOKS, ETC., OF PUBLIC OFFICES. 311 
 
 principle, a register is not evidence for the defendant to prove a 
 joint ownership on a plea in abatement ;° nor (without possession) to 
 prove an interest of another person in the ship, m an action brought 
 by an agent on a policy of insurance, describing the interest in that 
 other person;" nor to prove that a ship is British built, as described 
 in the register.'' For the same reason, the mere fact of an entry of 
 a stage coach at the licensing office was no evidence of ownership.'^ 
 
 The books in the Heralds' Office, containing the pedi- r:cq-i9-| 
 grees *of the nobility and gentry of the realm, are evi- 
 dence on a question of pedigree;'' and so are the minute-books 
 of a visitation,' from Avhich the entries are afterwards made in 
 the books of the Heralds' College.' In the case of Pitton v. Wal- 
 ter,'' a minute-book of a visitation, signed by the heads of several 
 
 ° Flower v. Young, 3 Camp. 240. 
 
 ° Pirie v. Anderson, 4 Taunt. 652. 
 
 P Reusse v. Myers, 3 Camp. 475. See further, as to proof of property in a 
 ship, Vol. II., tit. Policy. 
 
 " Strothe v. Willan, 4 Camp. 24 ; Ellis v. Watson, 2 Stark. C. (3 E. C. L. R.) 
 453. But the stat. 5 & 6 Vict. c. 79, by s. 10, provides that a certified copy of 
 the license, which, by s. 11 of 2 & 3 Will. IV. c. 120, is directed to contain, if 
 the Commissioners think proper, the Christian and surname, and place of abode, 
 of every proprietor or part proprietor, or person who shall be concerned in the 
 keeping, using, or employing such carriage, shall in all proceedings, and on all 
 occasions whatsoever, be received as evidence against any and every person 
 named in such license of the contents thereof. So, in the case of Metropolitan 
 Hackney Carriages, a certified copy of the entry of the license at the Registrar's 
 shall be evidence and suflicient proof of all things therein registered ; and see 
 further 13 & 14 Vict. c. 7, as to these. The stat. 5 & 6 Vict. c. 79, repealed the 
 clause in the statute 50 Geo. III. c. 48, s. 7, which enacted that the name painted 
 on the outside panel of each door of a public stage-coach should be evidence of 
 ownership. This was, not only on summary proceedings before magistrates, 
 but in general, good evidence of proprietorship : Barford v. Nelson, 1 B. & Aid. 
 (20 E. C. L. R.) 571. 
 
 ■• Pitton V. Walter, Str. 162 ; Salk. 281 ; Skin. 623 ; Yelv. 34 ; King v. Foster, 
 T. Jon. 164-224. A book found therein, purporting to be an account of the 
 possession of property by a monastery, is not evidence of that fact: Lygon v. 
 Strutt, 2 Anst. 601. 
 
 " Sherriffy. Cadell, 2 Esp. 617 ; T. Jon. 224 ; B. N. P. 244. 
 
 ' The visitation-books were compiled by the provincial kings-at-arms, who were 
 usually authorized, soon after their investiture in office, by a commission under 
 the great seal, to visit the several counties within their respective provinces, to 
 take survey and view all manner of arms, &c., with the notes of the descents 
 pedigrees, and marriages of all the nobility and gentry, &c. They occupy the 
 interval between the 21 Hen. VIII. and the end of the reign of Jac. II. See 
 the first report of the House of Commons on the Public Records, \). 82. 
 
 » Str. 162.
 
 312 DOCUMENTS OF A PUBLIC NATURE. 
 
 families, and found in the library of Lord Oxford, Avas received in 
 evidence. But an extract from a pedigree proved to be taken out 
 of the records is not evidence,^ because a copy of the record might 
 be had, and therefore it is not the best evidence. 
 
 Armorial bearings are also evidence on a question of pedigree, as 
 tending to show that the person using them was of the family to 
 which they of right belong, his particular branch of that family, 
 what families were allied to it, what members were maidens, widows, 
 &c., and what illegitimate.'^ Some officer from the Herald's College 
 must attend to explain the intention and effect of the different bear- 
 ings. But as the heralds have exercised very little power since the 
 revolution in restraining the usurpation of another's arms, evidence 
 of armorial bearings used since that period is of little weight.'' 
 j-^q-io-i A book of the date of Queen Elizabeth purporting to be 
 *written by an officer of the Duchy of Lancaster, and de- 
 scribing the duties of the office, is not evidence on behalf of a suc- 
 cessor claimino; to exercise the same rights and duties under an 
 appointment from the duchy, although it has been always kept and 
 referred to as an authority in the Duchy Office.^ 
 
 Where a local Act authorized acts to be done at meetings to be 
 called for that purpose, and directed that entries in the commis- 
 sioners' books should be evidence ; held, that entries, stating orders 
 to have been made at a meeting held by public notice, without show- 
 ing that notice was given of the purpose for which it was called, was 
 not sufficient to establish the legality of the meeting.^ In order to 
 render the books available, the entries must be made strictly in ac- 
 cordance with the Act, which directs them to be kept,* but where an 
 Act directed minutes of each meeting to be kept which should be 
 signed by the chairman at each respective meeting, a signature by 
 the chairman on a subsequent day was held to be a sufficient compli- 
 ance with the requisition of the statute.^ 
 
 Land-tax assessments are admissible evidence to show the seisin 
 of the particular person assessed; for it is the duty of the officer to 
 
 " B. N. P. 248. 
 
 * Harvey v. Harvey, 2 W. Bl. 877 ; Co. Litt. 27 ; 1 Sid. 354. 
 
 * The first Herald's visitation was in 1528, the last in 1686 ; Ilubback's Evid. 
 of Succession, 696. 
 
 ' Jeicison v. Dyson, 2 M. & Rob. 377. 
 
 * Hey.sham v. Forster, 5 M. & Ry. 277. 
 
 ' h'ej. V. Mayor of Evesham, 8 A. & E. (35 E. C. L. R.) 266. 
 '' Milm V. lioufjh, 3 (l B. (43 E. C. L. R.) 845 ; Southampton Dock Company 
 v. Richards, 1 M. & G. (39 E. C. L. R.) 448.
 
 BOOKS, ETC., OF PUBLIC OFFICES. 313 
 
 ascertain and charge the occupier." And sucli assessments are ad- 
 missible, in conjunction with otlier evidence, to prove the seisin of 
 land by a particular individual, although they contain only the sur- 
 name generally."^ But such evidence was held to be insufficient to 
 prove the seisin of a particular individual, where it appeared that 
 the assessor had, in the first instance, entered *the name of r^o-i/i-l 
 a former owner incorrectly, and continued it after his death." 
 
 Books and chronicles of public history are not admissible in 
 order to prove particular facts or customs,^ but they are evidence 
 to prove a matter relating to the kingdom at large, as being the 
 best of which the subject-matter is capable.^ ^ Camden's Britannia 
 was rejected on the question, whether, by the custom of Droitwich, 
 salt-pits could be sunk in any part of the town, or in a certain place 
 only.** And so was Dugdale's Monasticon, on the question, whether 
 the Abbey de Sentibus was an inferior abbey, or not, because the 
 original records misht be had at the Auo-mentation Office.' It was 
 held that Dugdale's Baronage was not evidence to prove a descent;'' 
 and books of history are not evidence of the creation of a peerage.^ 
 
 * Coventry on Conveyancers' Evidence, c. 7, s. 1, p. 275 ; Doe v. Seaton, 2 Ad. 
 & E. (29 E. C. L. R.) 171 ; Doe v. Cartwnght, 1 C. & P. (12 E. C. L. R.) 218. 
 
 ^ Ibid. 
 
 « Doe d. Stanshury v. Arlioright, 2 Ad. & E. (29 E. C. L. R.) 182. 
 
 ' B. N. P. 248 ; Cockman v. Mather, 1 Barnardist 14. 
 
 8 Ibid. 249 ; Salk. 281. On the impeachment of Warren Hastings, the History 
 of the Growth and Decay of the Ottoman Empire, by Prince Demetrius Cante- 
 mir, was received in evidence to pi'ove the customs in Ilindostan respecting the 
 treatment of women of rank: and after arguments as to the admissibility of 
 the evidence, it was held that the managers were entitled to read it, on the 
 ground that it went to prove an universal custom of the Mohammedan religion ; 
 see Phillips on Evidence, vol. i. 424, citing a report of the proceedings on the 
 impeachment, in the possession of T. Jones Howell, the editor of the State 
 Trials. The point was referred to by Lord Ellenborough, on the trial of General 
 Picton : 30 How. St. Tr. 492. 
 
 ^ Stainer v. The Burgesses of Droitwich, Salk. 281 ; Skinner 623 ; 1 Vent. 
 151. 
 
 ' Cited Salk. 281. * Piercys case, T. Jon. 164. 
 
 1 Vaux Peerage, 5 CI. & F. 526. 
 
 ^ Historical books which have been generally received as authentic are admis- 
 sible as furnishing evidence of remote transactions : Comm. v. Alburger et al., 
 1 AVhart. 469. G. 
 
 But matters of general history must be given in evidence as well as all other 
 facts and a jury are not to be left to their own information as to such things : 
 Gregory v. Bauyh, 4 Rand. 611. I. 
 
 See ante, p. 49, note.
 
 314 DOCUMENTS OF A PUBLIC NATURE. 
 
 But in the case of Neale v. jPr?/,"" in order to show that a deed was 
 forged which bore date 1 Philip k Mary, in which all the titles were 
 given to Philip which he used after the surrender of Charles the 
 Fifth, chronicles were admitted to show that he did not take 
 *those titles upon him till six months after the date of the 
 L -I deed. And in the case of St. Catharine's Hospital, Lord 
 Hale admitted a chronicle to prove a particular point of history in 
 the reign of Edward the Third." The year-books are evidence to 
 prove the course of the court." The history of a particular county 
 is not admissible^ to prove the boundary between two parishes, it 
 beinw admitted that the latter was coincident with the former.'* 
 
 It is a general rule, that whenever the original document is of a 
 public nature, an exemplification of it (if it be a record), or a sworn 
 copy, is admissible in evidence,' because documents of a public nature 
 cannot be removed without inconvenience, and danger of being lost 
 or damaged;^ and the same document may be wanted in two places 
 at the same time.^ The document must always be proved to be that 
 
 ■» Salk. 282, and B. N. P. 249. ° Salk. 282. 
 
 •Ibid. ; Spelman's Nomina Villarum has been received to prove Newstead to 
 be avill: Phillips on Evidence 605, 8th edit. Bishops AYell's Liber de Ordina- 
 tionibus Vicariorum has been admitted to prove an endowment : Tucker v. 
 Wilkins, 4 Sim. 241. 
 
 P Evans v. Getting, 6 C. & P. (25 E. C. L. R.) 586. It was thrown out that 
 the writer might have the same interest as any other inhabitant in extending 
 the boundaries of the county, although the case diflered from that of a general 
 history of the country. But it seems the consistory court will receive a county 
 history as evidence of public matters; e. g. the union of the two parishes, since 
 the demolition of the church of one of them : White v. Beard, 2 Curt. Ecc. R. 
 492. 
 
 1 See further as to almanacs, Vol. II., tit. Time ; corporation books, Vol. II., 
 tit. Corporation ; manor books, Vol. II., tit. Copvhold — Manor. 
 
 ' B. N. P. 394 ; Gilb. Law of Ev. 5, 6. But though a co^nj of a contract with 
 the land-tax commissioners is made evidence by 42 Geo. III. c. 116, s. 165, the 
 original contract is not evidence by implication : Biirdon v. Rickets, 2 Camp. 
 121 ; and see Sav. 46, pi. 98 ; Vol. II., tit. Penal Action. 
 
 » Gilb. Law of Ev. 6 ; Bac. Ab. Ev. F. ; and see Lynch v. Gierke, 3 Salk. 154 ; 
 R. V. Haines, Comb. 337. 
 
 ^ In the State Courts, no other authentication of documents from a public 
 ofBce of the United States ought to be required than such as would be sufficient 
 in the courts of the United States: Wickliffe v. /////, 3 Litt. 330. But a paper 
 purporting to be a document from the treasury department of the United 
 States, certified to Ije a true copy, but without the official seal, is not evidence. 
 Ibid. 
 
 By the first section of the statute of the United States, passed March 27th
 
 JUDICIAL DOCUMENTS. 815 
 
 which it purports to he, and for which it is offered, hy some extrinsic 
 proof; as in the case of records, terriers, etc., by sliowing that they 
 came from *the legal custody or repository.' And this is r^oip-i 
 in general sufficient, where the original is produced, for a 
 record proves itself; and terriers and other ancient writings do not 
 usually admit of further authentication.^ 
 
 II. Judicial Documents. 
 
 Judicial documents may be divided into First. Judgments, decrees, 
 and verdicts. Secondly. Depositions, examinations, and inquisitions, 
 taken in the course of a legal process. Thirdly. Writs, warrants, 
 
 * See tit. Records — Judgments, &e. ; see also Terriers, supra, 29'2. Several 
 instances have been given in which, by particular statutes, documents are to be 
 taken prima facie to be what they purport to be. There are also other instances 
 of a similar rule, but as they are not uniform, and do not depend upon any 
 general principle, they will be noticed in treating of the subjects to which they 
 relate. It is, perhaps, to be desired that a general rule to this effect should be 
 established. 
 
 " For the mode of procuring access to public documents, see tit. Inspection. 
 
 1804, " all records and exemplifications of ofiice books, which are kept in any 
 public office of any State, not appertaining to a court, shall be proved or 
 admitted in any other court or office in any other State, by the attestation of 
 the keeper of the said records or books and the seal of his office thereto annexed, 
 if there be a seal, together with a certificate of the presiding justice of the 
 court of the county or district, as the case may be, in which such office is or 
 may be kept ; or of the Governor, the Secretary of State, the chancellor or the 
 keeper of the great seal of the State that the said attestation is in due form, 
 and by the proper officer ; and the said certificate, if given by the presiding 
 justice of a court, shall be further authenticated by the clerk or prothonotary 
 of the said court, who shall certify under his hand and the seal of his office 
 that the said presiding justice is duly commissioned and qualified; or if the 
 said certificate be given by the Governor, the Secretary of the State, the chan- 
 cellor or the keeper of the great seal, it shall be under the great seal of the 
 State in which the said certificate is made. And the said records and exempli- 
 fications, authenticated as aforesaid, shall have such faith and credit given to 
 them in every court and office within the United States, as they have by law or 
 usage in the courts or offices of the State from whence the same are or shall be 
 taken." The second section provides that the first section, and the Actof 1790, 
 shall apply to books, records, offices, &c., of the tejTitories of the United States, 
 and countries subject to the Juris diction of the United States. M. 
 
 The enrolment of a steamboat is a record of which the collector of customs 
 is the custodian, under the acts of Congress, and a copy thereof, duly certified 
 by the collector, is competent evidence ; as is also such a copy of the act of 
 sale recorded under the act of Congress of 1850 : Sampson v. Noble, 14 La. 
 Ann. 347.
 
 316 JUDICIAL DOCUMENTS. 
 
 pleadings, bills, and answers, &c., which are incident to judicial pro- 
 ceedings. With respect to judgments, decrees and verdicts, may be 
 considered ; frst, their admissibility and effect ; secondly, the means 
 of proof; thirdly, the mode of answering such evidence. 
 
 Judgments, Decrees and Verdicts. — In treating of the admissibility 
 and effect of judgments, decrees and verdicts, it is important to con- 
 sider, in the first place, for what purpose a verdict or judgment is 
 offered in evidence ; whether with a view to establish the mere fact 
 that such a verdict was given, or judgment pronounced, and those 
 legal consequences which result from that fact ; or, secondly, with a 
 view to a collateral purpose ; that is, not to prove the mere fact that 
 such a judgment has been pronounced, and so to let in all the necessary 
 legal consequences of that judgment, but as amedium of *prov- 
 L -' ing some fact as found by the verdict, or upon the supposed 
 existence of which the judgment is founded. 
 
 Tor establishing the fact that such a verdict has been given, or such 
 a judgment pronounced, and all the legal consequences of such a 
 judgment, the judgment itself is invariably not only admissible as the 
 proper legal evidence to prove the fact, but usually conclusive evi- 
 dence for that purpose ; for it must be presumed that the Court has 
 made a faithful record of its own proceedings. And in the next 
 place, the mere fact that such a judgment w^as given can never be 
 considered as res inter alios acta, being a thing done by public au- 
 thority ; neither can the legal consequences of such a judgment be 
 ever so considered ; for where the law gives to a judgment a particu- 
 lar operation, that operation is properly shown and demonstrated by 
 means of the judgment, which is no more res inter alios acta than 
 the law which gives it force. But with reference to any fact upon 
 whose supposed existence the judgment is founded, the proceeding 
 may or may not be, res inter alios acta, according to circumstances. 
 For instance, if B., being indicted, was convicted of beating A., the 
 record of the judgment would be incontrovertible evidence of the fact 
 that B. had been so convicted ; it would be conclusively presumed that 
 the court had kept a faithful record of its own proceedings. It would 
 in like manner be conclusive as to all the legal consequences of such 
 conviction. For instance, one of such consequences is, that B. shall 
 not be punished a second time for the same offence ; and consequently 
 the record would be conclusive, when shown to the court, to protect 
 him from a second prosecution for the same offence. So if B. had 
 been acquitted, and had brought an action against A. for a malicious 
 prosecution, it would have been necessary to prove the fact of ac-
 
 JUDGMENTS, WHEN CONCLUSIVE. 317 
 
 quittal ; and here again the record would have been conclusive evi- 
 dence to show that fact. But next suppose, that upon J5.'s conviction 
 ^4. brought an action to recover *damao;es for the assault, ^ ^^^^ 
 and offered to prove the assault by the record of conviction, L J 
 he would then be offering the judgment, not with the view to prove the 
 mere fact of conviction, or to establish any legal consequence to be 
 derived from it, but for a collateral purpose ; that is to prove the fact 
 upon whose supposed existence the judgment was founded. With 
 respect to such facts, that is, the facts upon which a judgment pro- 
 fesses to be founded, the judgment may or may not be evidence, ac- 
 cordinof to circumstances, considerino; the nature of the facts them- 
 selves, and the parties.^ 
 
 A record is in no case direct and positive evidence of any fact 
 which it recites, as having been found by a jury, or otherwise ascer- 
 tained ; it is in the nature of presumptive evidence only, for even the 
 jury who found the fact may have acted upon mere presumption, 
 without the aid of any direct evidence. If, therefore, no rule of 
 policy intervened, no verdict could ever establish any fact conclu- 
 sively, for it never could prove more than that the jury, in the par- 
 ticular case, presumed, from some evidence or other, that the fact 
 was true. But public policy requires that limits should be opposed 
 to the continuance of litigation upon the same subject-matter, and 
 therefore the law will not permit a matter, which has once been sol- 
 emnly decided by a court of competent jurisdiction, to be again 
 brought into litigation between the same parties or their representa- 
 tives.'' Consequently a decree or judgment between the same parties 
 upon the same subject-matter is usually conclusive as to private rights. 
 On the other hand, it is an elementary rule and principle of justice, 
 that no man shall be bound by the act or admission of another to 
 which he was a stranger ; and consequently no *one ought 
 to be bound, as to a matter of private right, by a judgment ^ -' 
 or verdict^ to which he was not a party, where he could make no 
 defence, from which he could not appeal, and which may have resulted 
 from the negligence of another, or may even have been obtained by 
 means of fraud and collusion. Neither ought any one in justice to be 
 bound by a verdict, although he was privy to it, but where his adver- 
 
 " See B. N. P. 14 ; Purcell v. Macnamara, 9 East 361. 
 
 ^ According to the legal maxims, "nemo vexari debet bis pro eadem causa," 
 and "reipublicce interest ut sit finis litium;" see 3 Wilson 304, Kitchen v. Camp- 
 bell ; see 2 Ex. 681. 
 
 ^ See the judgment of C. J. De Grey, in the Duchess of Kingston's case, 20 
 How. St. Tr. 355.
 
 319 JUDICIAL DOCUMENTS. 
 
 sary was not also a party, and consequently where the verdict may 
 have been founded upon the evidence of that adversary himself, who 
 had an interest in obtaining a verdict for the purposes of evidence ; 
 for as he cannot give direct evidence upon the subject, he ought not 
 to make use of his own evidence by circuitous means/ Another 
 principle which (as it is frequently said) operates to the exclusion of a 
 verdict, as evidence, on a matter of private right, is this, that a person 
 who could have received no prejudice from the verdict, ha<l it been 
 given the contrary way, shall not derive any benefit from it when it 
 turns out to be in his favor,'^ and because a judgment operates by 
 way of estoppel, and estoppels must be founded on mutuality.^ 
 
 Another ground of objection, even where the evidence is offered 
 against a party to the former proceeding, arises when, from the 
 nature of the former proceeding, the party is not entitled to the 
 same means of disproving the fact, or the same means of redress, of 
 which he might avail himself in the second suit ; for this would be 
 virtually, although circuitously, to deprive him of those advantages. 
 Thus, for example, the effect of admitting upon the trial of a civil 
 action, a conviction on an indictment for felony (except for the pur- 
 pose of establishing a legal consequence of the conviction) would 
 p^oQA-i formerly* have been indirectly to deprive *the party, against 
 whom the evidence was offered, of the power of repelling the 
 proof by means of a full defence by counsel, and of his attaint of the 
 jury for finding a false verdict. 
 
 These objections are however applicable to those cases only where 
 a matter of private right or liability is concerned ; for in matters of 
 a public nature, Avhere the proceeding is, as it is usually termed, m . 
 rem, public convenience requires that the sentence, decree or judg- 
 ment should be binding upon all.*^ In cases also where the matter 
 is of a public nature, and where reputation would be admissible evi- 
 dence, a verdict or judgment is frequently evidence, as falling within 
 the scope of general reputation. 
 
 Such are the general considerations by Avhich the reception of 
 evidence of this nature is governed, depending mainly on the elemen- 
 tary principles already announced ; viz., that no one ought to be 
 bound by any testimony where he has not had the power of cross- 
 
 ' Gllli. Law of Ev. 25. " Ibid. 28. 
 
 " Per Lord Ellonborou^rh, 4 M. & S. 470. 
 
 • But now Hcc G & 7 Will. IV. c. 114, and fi Geo. IV. c* 50, s. GO. 
 ^ Vide supra, p. 3G, and tit. Res inter alios Acta. But see Bailey v. Harris, 
 12 Q. B. (04 E. C. L. II.) 905.
 
 THEIR ADMISSIBILITY AND EVIDENCE. 320 
 
 examining the witness, and controverting the evidence by opposite 
 testimony," nor by any evidence which comes within the description 
 of 7'es inter alios acta. 
 
 The admissibility and effect of a verdict or judgment is now to be 
 considered, with a view to the proof of the judgment itself as a fact, 
 and its legal consequences. It seems to be an incontrovertible rule, 
 that every judgment is evidence for such purposes, and the only 
 proper evidence/ An attainder of felony or treason is, in general, 
 evidence as to all the consequences of the attainder.^ A conviction 
 of the principal for felony is evidence against the accessory.*^ A 
 conviction of an infamous crime was, before the change in the law 
 before described, evidence against all, to show the incompetency of 
 the party as a witness/ So the *judgment by a person of r*o9i-| 
 competent authority is evidence to protect him against actions 
 for any matter judicially done within the scope of that authority.^ 
 For his immunity is a legal consequence of his acting in that situation ; 
 and the judgment is offered, not to prove the truth of the facts upon 
 which it is founded, since, with a view to such a defence, the truth 
 of those facts is not material, but in order to prove the fact of a 
 judgment pronounced by competent authority, and so to establish 
 the immunity of the judge, which is a legal consequence of the judg- 
 ment/ In these, and a number of other instances, where a judgment 
 is admitted to prove the fact itself, and with a view to its legal conse- 
 quences,™ every such judgment maybe considered as operating in rem.''^ 
 
 * Supra, tit. Excluding Tests. 
 
 ' R. V. Bourdon, 2 C. & K. (61 E. C. L. R.) 366. 
 
 8 Vide infra, tit. Accessory. ^ Ibid. ' Supra, tit. Witness. 
 
 ' Brittain v. Kinnaird, 1 B. & B. (5 E. C. L. R.) 432; Taylor v. Clemson, 2 
 Q. B. (42 E. C. L. R.) 1031 ; Aldridge v. Haines, 2 B. & Ad. (22 E. C. L. R.) 
 408; vide infra, tit. Convictions by Justices, Vol. II. 
 
 ' Garnett v. Ferrand, 6 B. & C. (13 E. C. L. R.) 611 ; Cave v. Mountain, 1 M. 
 & G. (39 E. C. L. R.) 257 ; infra, Ibid. tit. Justices— Trespass. 
 
 " Thus a decree of the Court of Chancery, made in Michaelmas Term 1783 
 in a suit between the father of the tenant in a writ of right and other persons 
 wholly unconnected with the demandant, brought to establish a will under 
 which the tenant's title arose, by which decree, the court directed that the 
 estates should be considered as belonging to the tenant's father, the devisee, 
 and that he should be let into possession, and have all the title-deeds delivered 
 to him, was admitted, for the purpose of explaining the character in which he 
 took possession of the estate : Davies v. Lowndes, 1 Bing. N. C. (27 E. C. L. R.) 
 606 ; 6 M. & G. (46 E. C. L. R.) 474. 
 
 ° Thus in Pritchard v. Hitchcock, 6 M. & G. (46 E. C. L. R.) 151, in an action 
 against the surety upon a guarantee, to which the defendant pleaded paymen^; 
 
 ' A judgment may be given in evidence against strangers whenever it is
 
 321 JUDICIAL DOCUMENTS. 
 
 In an action by A. against a sheriff, for trespass to his goods, the 
 defendant may give in evidence a judgment against B., and that he, 
 by virtue of a fie7'i facias upon that judgment, seized the goods in 
 r* 099-1 question, being the *goods of B. So where the title to par- 
 ticular goods is litigated between A. and B., it is competent 
 to A. to show a judgment against C, and that the sheriff sold the 
 goods to him, being the goods of C, under a fieri facias. A judg- 
 ment in assiwipsit against three defendants as partners, is |;rm<^ 
 facie evidence for one against the others, to prove their liability to 
 contribution." And in an action against the sheriff, for an escape or 
 other negligence in regard to executions, judgments against third 
 persons are usually given in evidence to show how the plaintiff 
 claims, and his damages.'' So where A. has obtained a verdict 
 against B. for the negligence of his agent C, in an action by B. 
 against C, the recovery in the former action is evidence, not to 
 prove the fact on which it is founded, viz., the negligence of C, but 
 to show how far B. has been damnified f the judgment here is the 
 best evidence to show the amount of ^.'s liability to A., but it is no 
 evidence to show that such liability was the consequence of C's neg- 
 ligence, a fact which must be proved aliunde} So a verdict in a 
 
 by the principal, it was held that a verdict against the plaintiff by the assignees 
 of the principal, was evidence to show the fact that they had recovered back the 
 money paid by the principal, though it was not evidence that they were entitled 
 to recover it. And see King v. Norman, 4 C. B. (5G E. C. L. R.) 884. Sujyra, 
 tit. Res inter alios acta. 
 
 ° Powell V. Lay ton, 2 N. R. 371. 
 
 P Per Tindal, C. J., Davies v. Lowndes, 1 Ring. N. C. (27 E. C. L. R.) 607. 
 
 1 Green v. The New River Comjmny, 4 T. R. 590. But see on a contract to 
 indemnify, King v. Norman, 4 C. B. (56 E. C. L. R.) 884. 
 
 relevant fact in the title of the party who offers it. Thus where the title is 
 derived from a judicial sale, the judgment or decree may be given in evidence 
 as the authority for the sale : Barr v. Gratz, 4 Wheat. 213 ; Witmery. Schlatter, 
 2 Rawie 359 ; Jackson v. Wood, 3 Wend. 27 : Lovell v. Arnold, 2 Munf. 167 ; 
 Foioler v. Savage, 3 Conn. 90 ; Ansley v. Carlos, 9 Ala. 973 ; King v. Chase, 15 
 N. II. 9 ; Chamberlain v. Carlisle, G Fost. 540. 
 
 ' In an action of covenant for quiet enjoyment, a recovery of damages in 
 trespass quare clausum fregit, is sufficient evidence to show a breach : Williams 
 v. Shaio, Nor, Car. Terra Rep. 197. And so the verdict in an action against an 
 oflBcer for a negligent escape, is conclusive evidence of the amount of damages 
 to be recovered by him in an action against the debtor : Griffin v. Brown, 2 
 Pick. 304. But a mere copy of docket entries is not admissible as evidence of a 
 judgment in an action Ijy a surety against his principal to recover the amount 
 paid by him under the judgment: Levering v. Dayton, 4 Wash. C. C. 698. The 
 record of tlie forfeiture of a recognisance in the proper court is conclusive evi-
 
 JUDGMENTS BETWEEN PRIVATE PROCEEDINGS. 322 
 
 former cause intej' alios is admissible for the purpose of introducing 
 evidence to show that a witness on the former trial gave evidence 
 directly contrary to that which he gives on the latter/ So in an 
 action for a malicious prosecution, an indictment against the plaintiiF 
 is evidence to show the act done by the defendant in the prosecution 
 of his malicious intention, and also to show the plaintiff's acquittal.^ 
 
 ■■ Clarges v. Sherioin, 12 Mod. 343 ; B.^N. P. 232. 
 
 = Legatt v. Tollervei/, 14 East 302; see Vol. II., tit. Malicious Prosecution. 
 
 dence of the forfeiture in debt on the recognisance : Shrine v. Cumm., 2 Rawle 
 200. Where in an action of assault and battery the defence was that the 
 plaintiff (a common sailor) had destroyed a quantity of cheese and used insult- 
 ing language to the master (the defendant in the suit of assault and battery), 
 the record of a court of competent jurisdiction of an action brought against the 
 sailor for damages for the destruction of the cheese, in which a verdict had 
 been obtained against him for damages and final judgment thereon, was held 
 inadmissible to prove the fact of such destruction : Fi/er v. Atwater, 4 Day 
 431. G. 
 
 In an action by A. against B. to recover damages for the value of a slave sold 
 by B. to A., and which had been recovered by a paramount title by C. from A. 
 the record of the action between C. and A. is evidence of the " fact of eviction" 
 and of the damages but not of C.'s title : Sanders v. Hamilton^ 2 Ilayw. 226, 
 282 ; Blasdah v. Babcock, 1 Johns. 517 ; s. p. A verdict against the sheriff, 
 for the default of his deputy, is evidence is an action by the sheriff against the 
 deputy: Tyler v. Ubner, 12 Mass. 166; per Parker, C. J. This is doubtless 
 true, as to the amount of damages ; and probably if the deputy defend the first 
 suit or have notice of it (which seems to be the ground on which the judge 
 made the above dictum) the verdict would be evidence of the default. Thus in 
 Kip V. Bringham, 6 Johns. 158 ; 7 Johns. 168; where the sheriff, who was sued 
 for an escape of a prisoner to whom the jail liberties had been granted, gave 
 notice of the suit to the prisoner's sureties, and they in conjunction with the 
 sheriff, defended it, and judgment was given against the sheriff; this judgment 
 was held in an action by the sheriff against the sureties on the bond for his 
 indemnity to be conclusive evidence of the escape. A judgment in an action 
 against a sheriff alone, of which his sureties had no notice, is not conclusive 
 as to the amount of damages in a subsequent suit upon the recognisance against 
 tiie sheriff and sureties jointly : Carmack v. Comm., 5 Binn. 154. The record of 
 a recovery, in ejectment against a covenantee, is not conclusive against a 
 covenantor, if he had no notice of the ejectment : Leather v. Poultneg, 4 Binn. 
 356. Aliter, if the covenantor had notice and took part in the trial : Bender v. 
 Fromherger, 4 Dall. 436, note ; see also Hamilton v. Otitis et al., 4 Mass. 349 ; 
 Waldo V. Long, 7 Johns. 173 ; Clark's Ex'ors v. Carrington, 7 Cranch 322 ; 
 Frewett v. Kenton, 3 Bibb. 281 ; RadcUffe v. Ship, Hardin 292; Burrillv. West, 
 2 N. II. 190. It has been decided in South Carolina, that when a recovery over 
 is given by law or secured by express contract, and the plaintiff relies on the 
 recovery against him as the sole and conclusive evidence of his right to recover 
 over, notice of the first action is indispensably necessary : Bond v. Ward, 1 N. 
 & McC. 201. M.
 
 322 JUDICIAL DOCUMENTS. 
 
 So a record is frequently evidence by way of inducement, as upon an 
 indictment for perjury,' or aiding the escape of a felon." 
 r*Q9^1 *In considering the admissibility and effect of a verdict 
 or judgment, Avith a view to the proof of those matters on 
 which they are founded, it will be convenient to divide all adjudica- 
 tions into : First. Those which relate to matters of private litigation 
 between party and party. Secondly. Those of a criminal and penal 
 nature. Thirdly. Those which relate to proceedings in rem. Fourthly. 
 Those which relate to matters usually proved by reputation. 
 
 As to the admissibility of a verdict or judgment relatmg to matters 
 of private litigation hetioeen parties. — ^It has been laid down by great 
 authority, that in civil cases the judgment of a court of concurrent 
 jurisdiction directly upon the point, is as a plea a bar, and as evi- 
 dence,'' conclusive between the same parties upon the same matter 
 directly in question in another court ; and that the judgment of a 
 court of exclusive jurisdiction is, in like manner, conclusive upon the 
 same matter coming incidentally^ in question in another court be- 
 tween the same parties for a different purpose. But that the judg- 
 ment of a court of concurrent or of exclusive jurisdiction is not evi- 
 dence of any matter which comes collaterally in question, though 
 within their jurisdiction, nor of any matter to be inferred by argument 
 from the judgment.^ ^ 
 
 ' 7?. V. Iles^ Cas. temp. Hard. 118 ; R. v. Hammond Page, 2 Esp. 649. 
 
 " E. V. Shaw, R. & R. 526. 
 
 ^ Although the celebrated judgment in The Duchess of Kingston'^ s case, has 
 received frequent sanction from eminent judges, by whom it has been cited 
 without qualification, it will be seen from the modern authorities below refei-red 
 to, that in the case where a former judgment is used, not as a decision on the 
 identical subject-matter of complaint, but as a decision on the same contro- 
 verted point, which is to operate by way of estoppel, it cannot so operate unless 
 it be pleaded, even perhaps although the party seeking to avail himself of it 
 had no opportunity for pleading it, as where he is defendant in an ejectment; 
 see Ferrers v. Arden, 6 Rep. 7 ; Outram v. Morewood, 3 East 365, per Lord 
 Ellenborough, C. J. ; Vooght v. Wiiich, 2 B. & Aid. 662. But see 2 Smith's L. 
 C. 444, 445. 
 
 y Barrs v. Jackson. 1 Phill. C. Rep. 582. 
 
 ^ By Dc Grey, C. J., in giving judgment in /The Duchess of Kingston's cas«, 
 20 How. St. Tr. 355, and see note to this case, 2 Smith's L. C. 436. A verdict 
 is conclusive between the same parties on the same facts, unless it has been re- 
 versed by attaint: Co. Litt. 227, b. So a defendant, who has omitted to plead 
 his certificate under a commission of bankrupt in a former action by plea puis 
 
 ' A judgment in a court of exclusive jurisdiction is conclusive upon the same 
 matter between the same parties coming incidentally in question in another
 
 JUDGMENT. ETC. — IDENTITY OF PARTIES. 324 
 
 *This was part of the judgment of C. J. De Grey, in the r*q.74-i 
 case of The Duchess of Kingston. The principal position 
 amounts to this, that no matter once litigated and determined by 
 proper authority, sliall a second time be brought into controversy 
 between the same parties. 
 
 It is then essential to consider the five following points : The iden- 
 tity of the parties ; the identity of the matter litigated ; the nature 
 and manner of the adjudication ; the application of the adjudication 
 to the fact to be proved ; and the effect of the judgment. 
 
 First, then, as to the identity of the parties.* No one in general 
 can be bound by a verdict or judgment unless he be a party to the 
 suit, or be in privity with the party, or possesses the power of 
 making himself a party ;' for otherwise he has no power of cross- 
 
 darrein continuance, cannot plead it to an action on the judgment : Todd v. Max- 
 field, 6 B. & C. (13 E. C. L. R.) 105. So a shareholder of a bank or company 
 cannot plead to a sci.fa. what would have been an answer to the action against 
 their public officer : Philipson v. Loi-d Egremont, 6 Q. B. (51 E. C. L. R.) 587. 
 * Even an infant is bound by a judgment in an action wherein he was a party, 
 although brought in his name without his knowledge, by his prochein amy: 
 Morgan v. Moore, 7 M. & W. 400. But the ^^?-oc7iei»t amy, who is not "a party," 
 would not be so bound : Sinclair v. Sinclair, 13 M. & W. 640. 
 
 court for a different purpose. But neither the judgment of a concurrent or 
 exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of 
 any matter to be inferred by argument from the judgment : Hibshman v. Dulle- 
 ban, 4 Watts 183 ; Lentz v. Wallace, 5 Harris 412 ; Martin v. Gernandt, 7 Harris 
 124 ; Society v. Hartland, 2 Paine C; C. 536. 
 
 ' This principle is universally acknowledged. See the following cases in 
 which it. has been applied: Burrill v. West, 2 N. H. 190; Wood v. Davis, 7 
 Cranch 271 ; Davis v. Wood, 1 Wheat. 6 ; Paynes v. Coals et al., 1 Munf. 373 ; 
 Turpin v." Thomas, 2 Hen. & Munf. 139 : Jackson v. Vedder, 3 Johns. 8 ; Case 
 V. Beeves, 14 Johns. 79; Ryer v. Atwater, 4 Day 431 ; Killingworth v. Bradford, 
 2 Overt. 204 ; Wood v. Stephens, 1 S. & R. 75 ; Estep v. Hutchman, 14 S. & R. 
 435; Tabor v. Per rait et al., 2 Gall. 565; Tivambley v. Henley, 4 Mass. 641 ; 
 Pesptiblica v. Davis, 3 Yeates 128 ; Johnson v. Brown, 1 Wash. 187 ; Stevelie v. 
 Read, 3 AVash. C. C. 274. A record of one suit cannot be used as evidence in 
 another, on the ground that the defendant and one of the plaintiffs in the latter 
 suit were parties to the former, and that the same point was in controversy in 
 both ; another plaintiff and the person under whom both plaintiffs jointly 
 claim, not having been parties to the former suit: Cliapman v. Chapman, 1 
 Munf. 398; see Carmachv. Commonwealth, 5 Binn. 184. The record of a judg- 
 ment against James R. is admissible as evidence in an action against Joseph R., 
 if it appear that the latter was the same person, and in fact party to the suit 
 and defended it: Stevelie v. Read, 2 Wash. C. C. 274. As to who are parties or 
 privies, see Cleaton v. Chambless, 6 Rand. 86 ; Gardner v. Buckbee, 3 Cow. 120 ; 
 Dennison v. Hyde, 6 Conn. 508 ; Nason v. Blaisdell, 12 Vt. 165 ; Downer v. Mor- 
 / 20
 
 324 JUDICIAL DOCUMENTS. 
 
 examining the witnesses or of adducing evidence in furtherance of his 
 rights : whilst the law of attaint subsisted he could have had no 
 attaint, nor can he challenge the inquest, or appeal ; in short, he 
 is deprived of the means provided by the law for ascertaining truth 
 and excluding error, and consequently it would be repugnant to the 
 first principles of justice that he should be bound by the result of an 
 inquiry to which he was altogether a stranger.'' 
 
 P^ „ -. *Hence, if one bring several ejectments against several, 
 upon the same title, a verdict against one is not evidence 
 against the rest, because although the party against whom the ver- 
 dict was had might be relieved, if it was not good, the rest could 
 not." So if, in an ejectment between a devisee and the heir-at-law, 
 the defendant should obtain a verdict, on proof that the will was not 
 duly executed, he could not give the verdict in evidence on another 
 ejectment brought by another devisee."* Where a suit was instituted 
 in the Ecclesiastical Court by B. against (7. for a divorce, causd 
 adulterii, with B., and she pleaded that she was married to B., and 
 upon proof made the court so pronounced, and accordingly dis- 
 missed B.'s libel, it was held that the judgment was not evidence in 
 an ejectment between other parties, in which the marriage between 
 C. and B. came in dispute.* If, in an information against A., issue 
 were taken on the fact whether J. S. was mayor of such a borough 
 in such a year, and it were to be found that he was not, such finding 
 and judgment Avould not be evidence on the like information 
 af^aiast B.^ So, a verdict against a tenant for life will not bind 
 a reversioner ;« for the tenant for life is seised in his own right, 
 
 "11 H. 4, 30 ; Tr. per Pais 29, 30 ; 44 Ass. 5 ; Kinnersley v. Orpe, Doug, 57. 
 Of course, if a person sui juris be made a party without his knowledge or con- 
 sent he is not bound by the judgment: Robson v. Eaton, 1 T. R. 62; but his 
 proper course is to apply to set the proceedings aside : Huhart v. Phillips, 13 
 M. & W. 702. 
 
 <=3 Mod. 142; Bell v. Ilarwoocl, 3 T. R. 308; Ld. Raym. 1292; Yern. 415; 
 Ch. Pr. 212; 12 Mod. 319, 339; 10 Mod. 292; Carth. 77, 181 ; 5 Mod. 386; 2 
 Jones 221 ; and see Lord Trimlestown v. Kemmis, 9 CI. & Fin. 781, where a 
 judgment in ejectment was refused in evidence, the defendant therein being a 
 stranger to the record. 
 
 -» B. N. P. 244. 
 
 « B. N. P. 244, cites liobin's case, C. B. 1700; De Costa v. Villa Real, Str. 
 961. 
 
 ' B. N. P. 244. 8 B. N. P. 232 ; Ilardr. 462 ; Yelv. 32 
 
 rison, 2 Gratt. 250; Putnam Free School v. Fisher, 34 Me. 172; Brock v. Gar- 
 rett, 16 Ga. 487; Lenox v. Notrebe, 1 Hempst. 251; McClellan v. Kennedy, 8 
 Md. 236.
 
 JUDGMENTS, ETC. — PERSONS IN PRIVITY. 325 
 
 and that possession is properly his own. He was at liberty, before 
 the recent change in the law,'' to pray in aid the reversioner or 
 not, and the reversioner could not possibly controvert the matter 
 where no aid was prayed. But if the reversioner had come in 
 upon an *aid-prayer, he might then have had an attaint, r;|:qo,^-| 
 and consequently the verdict would then have been evi- 
 dence against him.' 
 
 But one who claims in privity with another, is in the same situation 
 with the latter as to any verdict or judgment, either for or against 
 him, whether he claim as privy in blood or estate, or as privy in law.'' 
 Accordingly the heir may give in evidence a verdict for his ancestor.^ 
 And a verdict against the ancestor binds the heir." * So a verdict 
 
 ? 3 & 4 Will. IV. c. 42. 
 
 » B. N. P. 232 ; Hard. 462 ; Yelv. 32. Such a verdict is inadmissible as 
 evidence, not only of the title, but also of any fact found by the jury ; thus, in 
 order to prove a private Act of Parliament, which could not be found, there was 
 produced an office copy of a special verdict upon the trial of a feigned issue in 
 Hil. 13 it 14 Car. II., wherein the jury found that in the Parliament of 2 Edw. 
 VI. it was amongst other things enacted in these words following — the Act was 
 then set out, whereby certain lands in Kent, including some held by W. T., 
 were disgavelled. The lands in question were identified with these. But it 
 was held that the special verdict, being res inter alios acta, was not admissible: 
 Doe dem. Bacon v. Brydges, 6 M. & G. (46 E. C. L. R.) 282. 
 
 ^ Such a verdict and judgment operate as an estoppel, when pleaded in bar; 
 Com. Dig., Estoppel, B. ; Co. Litt. 352: Vooght v. Winch, 2 B. & Aid. 662; 
 Outrani v. Moreicood, 3 East 346; 16 East 334; IncJedon v. Burgess, 1 Show. 
 28 ; Hoo])er v. Hooper, M'Clel. & Yo. 509. One having lands by escheat, tenant 
 by curtesy, tenant in dower, the incumbent of a benefice, and others that come 
 in by act of law, or in the post, are mentioned by Lord Coke as examples of 
 privies in law : Co. Litt. 352, b. So a husband and wife are bound by a ver- 
 dict against the wife, as to her estate before marriage : Outram v. Morewood, 3 
 East 346. 
 
 ' Locke v. Norborne, 3 Mod. 141 ; Outram v. Moreivood, 3 East 346. 
 
 " Locke V. Norhorne, 3 Mod. 142 ; and R. v. Hebden, And. 389 ; et sic de 
 similibus, Blakemore v. Glamorganshire Canal Company, 2 C, M. & R. 133. 
 
 ^ There is no privity between an executor or administrator, and the heir or 
 devisee of the deceased ; and a judgment against the former is not evidence in 
 an action against the latter to charge the real estate: Masoti's devisees v. Peters' 
 Admrs., 1 Munf. 437. Whether there is any privity between an executor or 
 administrator and a legatee of the personalty: QucBre, Ibid. A judgment re- 
 covered by an executor is no bar to an action brought by the administrator de 
 bonis non cum testamento anncxo, for the same cause : Grout v. Chamberlain, 4 
 Mass. 613. There being no privity, the first judgment cannot, at common law, 
 be enforced by the administrator de bonis non, but becomes inoperative. By 
 statute 1817, c. 190, | 18, the law in this particular is altered in Massachusetts ; 
 see Allen, Admr., v. Irwin, 1 S. »fc R. 549. M.
 
 326 JUDICIAL DOCUMENTS. 
 
 against an estate or testator binds his representative." So in eject- 
 ment between Doe on the demise of A. against B., A., it is said, is 
 bound by a verdict for the defendant. For the courts take notice 
 that in ejectment the lessor of the nominal plaintiff is the party really 
 r*^9'~l iiiterested, *and upon the trial, A. had the opportunity to cross- 
 examine the witnesses for B., and to controvert their testi- 
 mony. ° 
 
 If several remainders be limited by the same deed, a verdict for 
 one in remainder will be evidence for the next in remainder against 
 the same party. ^ But a verdict against a particular tenant for life 
 did not bind the reversioner, unless he came in to defend upon aid- 
 prayer :'* and, cons^uently, for want of mutuality, a verdict for the 
 tenant for life would not have been evidence for the reversioner unless 
 called in aid against the same party .■" Partly upon the same prin- 
 ciple, judgment of ouster against *a mayor is evidence upon 
 a quo warranto against one admitted by him.^ 
 
 Two plaintiffs brought an action for a diversion of water from their 
 
 " R. V. Hebden, And. 389. 
 
 » Bac. Ab., tit. Ev. F. ; B. N. P. 232 : Hardr. 472 ; Gilb. Law of Ev. 33 ; Asliii 
 V. Parkin, 2 Burr. 665 ; 1 Smith L. C. 263, and note. It may be doubted 
 whether the older authorities on this subject do not relate to the now obsolete 
 action of ejectioue jirmce, in which the pleadings were carried on and issue 
 joined as in other oi'dinary actions of trespass. It has, however, lately been 
 held, that a judgment for the defendant in a former ejectment is evidence for 
 him on a subsequent ejectment, the lessor of the plaintiff being the same: Doe 
 d. Strode v. Seaton, 2 C, M. & R. 728 : Doe v. Huddart, Ibid. 316 ; and see 
 Wright v. Tatham, 1 Ad. & E. (28 E. C. L. R.) 3. And, in Doe v. Wright, 10 
 Ad. & E. (37 E. C. L. R.) 763 ; in an action in the name of the nominal plaintiff 
 for the mesne profits on and from 10th July 1826, on a plea that plaintiff was 
 not possessed, a replication that the plaintiff had by verdict recovered a term on 
 a demise laid on that day in an action of ejectment against the defendant, was 
 held good by way of estoppel. But, from Doe v. Wellsican, 2 Ex. 369, where, 
 in a similar action, a replication -that the plaintiff had recovered a term by a 
 judgment Vjy default upon a demise laid at a later day than that mentioned in 
 the declaration for mesne profits, but including part of the period covered by 
 the term, was held bad, it would seem that at most the estoppel is not only upon 
 the point, that on the particular day named in the demise the lessor was entitled 
 to recover, not that he was entitled at any earlier, or any later day. 
 
 P Pyke v. Crouch, 1 Ld. Raym. 730 ; B. N. P. 232 ; Ilardr. 462 ; Doe v. Tyler ^ 
 OBing. (19 E. C. L. R.) 390. 
 
 "» B. N. P. 232 ; Ilardr. 436; Bac. Ab., V.\. F. ; but see Phillips 317; Ilardr. 
 472; Gilb. Law of Ev. 35, 36 ; Bishop of Lincoln v. Sir W. Ellis, 2 Gwill. 632. 
 
 ' N. N. P. 232, 233 ; Ca. K. B. 319. 
 
 " P>. N. J*. 231 ; 2 Barn. 370; It. v. Lisle, And. 163 ; R. v. Grimes, Burr. 2599 j 
 5 T. R. 72; 11 St. Tr. 216; see tit. (iuo Warkanto.
 
 JUDGMENTS, ETC. — PERSONS IN PRIVITY. 328 
 
 works. One of them, whilst in possession of the same works, had re- 
 covered against the same defendants for a similar injury. It was 
 held that this was primd facie evidence of privity in estate with the 
 former plaintiff to render the former verdict and judgment admissible 
 in evidence against the defendants ;' and the former verdict and judg- 
 ment were held to be admissible between them as privies, although 
 those who offered the evidence had been examined in the former suit." 
 But although a verdict and judgment for a party is evidence for 
 one claiming in privity with him, this must be understood of a claim 
 acquired subsequently to the verdict." If a party, after a verdict 
 and judgment against him, assign his interest, the assignee is bound 
 by the verdict. After a verdict against J. S. and judgment, J. S. 
 aliened to J. N., and it was held that the verdict was evidence against 
 J. N. ; for it would have been evidence against J. S. at the time of 
 the transfer, and the substitute cannot be in a better condition than 
 the principal.^ ^ 
 
 * Blakemore v. Glamorganshire Canal Company, 2 C, M. & R. 133; Strutt v. 
 Bovingdon, 5 Esp. 58, 59. 
 
 " Blakemore v. Glamorganshire Canal Company, 2 C, M. & R. 139 ; see also 
 Brook V. Carpenter, 3 Bing. (11 E. C. L. R.) 379 ; and Vol. II., tit. Malicious 
 Prosecution ; see also Davis v. West, 6 C. & P. (25 E. C. L. R.) 172; where a 
 conviction obtained on the evidence of one defendant was admitted in favor of 
 co-defendants. 
 
 ^ Doe V. Earl of Derby, 1 Ad. & E. (28 E. C. L. R.) 787 ; and the rule laid down, 
 Com. Dig., Ev. (A. 5), viz., that a verdict is evidence, for one under vrhom any 
 of the present parties claim, must be so understood. If it could be understood 
 to extend to other lands under the same title previous to the verdict, the effect 
 of such verdict might be carried back to an indefinite extent: Per Littledale, J., 
 1 Ad. & E. (28 E. C. L. R.) 790. So a verdict against a lessor is admissible. 
 
 y 2 Roll. Abr. 680; Bac. Abr., Ev. F. The answer of a Dean and Chapter to 
 a bill filed to establish a farm modus, admitting a district modus, is evidence 
 against a subsequent lessee of the Dean and Chapter in a suit by him for tithe 
 in kind. It is said that a verdict and judgment for or against a lessee is evi- 
 dence for or against a reversioner: Com. Dig., "Ev. (A. 5) ; Gilb. Law of Ev. 35, 
 36 ; Rushworth v. Countess of Pembroke, Ilardr. 472. This, it seems, is to be 
 understood of a lessee in the old action of ejectione firmce ; and see Pees v. 
 Walters, 3 M. & W. 527. The proposition from Comyn is at least doubtful. 
 
 ' So where a mortgagor, when sued for possession, defended on the ground of 
 usury, but failed in his defence, and afterwards assigned his right to A., who 
 brought a writ of entry against the mortgagee and attempted to support his 
 action by proof of the usury ; the former judgment was held to be a conclusive 
 defence against A. : Adams v. Barnes, 17 Mass. 365. It was also said, by Jack- 
 son, J., in the same case, that if in the first suit, the mortgage had been proved 
 to be usurious, the judgment against the mortgage would have been an estoppel 
 to him and to all persons claiming under him. In Oiitram v. Morewood, 3
 
 329 JUDICIAL DOCUMENTS. 
 
 r*Q9Ql *-^^ ejectment on the several demises of a mortgagor and 
 mortgagee, a judgment in an ejectment brought against the 
 mortgagor after mortgage is not admissible for the lessor of the 
 plaintiff in the former action as against the mortgagee, although the 
 judgment Avas entered in pursuance of the award of an arbitrator, to 
 whom the cause was referred, there being no evidence to show that 
 the mortgagee took any part in the proceedings/ 
 
 It is not essential that either the parties or the form of action 
 should be precisely the same, if they are substantially the same." 
 Thus in ejectment, as has been seen, the law recognises the real 
 parties.* Where an action of trover was brought against a creditor 
 and the sheriff, for goods levied under an execution, and the defend- 
 ants had a verdict, the judgment was held to be a bar to a subsequent 
 action of assumpsit against the creditor alone.*" So a verdict for the 
 defendant, in an action for penalties for usury on a bond, was held 
 good evidence for him in an action on the bond as an answer to the 
 plea of usury." In an action for a trespass in the plaintiff's fishery,*^ 
 P^qqn-i a. *verdict for the plaintiff in a former action, against one 
 who justified as the servant of J. S., was admitted in evi- 
 dence against the defendant in the second action, upon its appearing 
 
 ' Doe V. Webber, 1 Ad. & E. (28 E. C. L.' R.) 119. 
 
 * Supra, pp. 326, 327, and n. (o). So in replevin the landlord, or person 
 under whom the defendant made cognizance, was held substantially a party : 
 Hancock V. Welsh, 1 Stark. (2 E. C. L. R.) 347. 
 
 " Hitchin V. Campbell, 2 W. Bla. 827 ; 3 Wils. 804 ; see below, p. 333, and 
 the cases there cited. 
 
 " Cleve V. Powell, 1 M. & Rob. 228. 
 
 ^ Kinnersley v. Orpe, Dougl. 56. At the trial it was held to be conclusive 
 evidence; but the Court of King's Bench held that it was admissible, but not 
 conclusive : see Simpson v. Pickering, 1 C, M. & R. 529 ; see Doe v. Earl of 
 DerJjy, 1 Ad. & E. (28 E. C. L. R.) 791 ; Outram v. Morewood, 3 East 346," per 
 Lord Ellenborough. It is not sufficient to show that a party to the former suit 
 might possibly be interested in the subsequent suit. 
 
 East 366, Lord Ellenborough questioned the admissibility of the former record, 
 in the case o( Kinnersley v. Orp'e; and in Case v. Peeves, 14 Johns. 82, Spencer, 
 C. J., pronounced it to b& reconcilable with the rules of evidence, only on the 
 ground that both suits were substantially against the same person. In an 
 action of ejectment between A. and B. the record of a former judgment in an 
 action of trespass between B. and cestui que trust of A., has been admitted in 
 evidence in Pennsylvania: Calhoun's Lessee v. Dunning, 4 Dall. 120. In Ken- 
 tucky, no other persons can be considered parties to a suit, so as to be bound 
 by the judgment, but those who appear by the record to be such ; and extrinsic 
 evidence is not admissible to prove that persons not named in the record were 
 parties: Allen v. Hall, 1 Marsh. 526. M.
 
 JUDGMENTS, ETC. — PERSONS IN PRIVITY. 330 
 
 that the defendant in this action had acted by the command of J. S., 
 for it -was considered that J. S., was the real party in both actions. 
 But the evidence is not conclusive. So a verdict against one defend- 
 ant was held to be evidence of the plaintiff's right on a second action 
 against the defendant and two others, who justified under the former 
 defendant for a subsequent injury affecting the same right.® But a 
 judgment in use and occupation against A. and B. has been thought 
 not to be evidence, in an action by the same plaintiff for use and 
 occupation of the same premises against A., as it might have been 
 obtained on the admission of B., which might or might not be evi- 
 dence against A., according to circumstances. '^ 
 
 A verdict in an action by the vicar against the occupier of land, 
 for tithes, is evidence against another occupier of the same land.^ 
 So a decree in favor of a vicar as to his right to small tithes, against 
 an impropriator, is evidence for his successors ;** and a judgment 
 against the schoolmaster of a hospital, as to rights claimed in respect 
 of his oflfice, is evidence against his successors.' 
 
 A record is also evidence against one who might have beei\ a party 
 
 to it, for he cannot complain of the *want of those advantages. 
 
 • • r*33l1 
 
 which he has voluntarily renounced.'' L J 
 
 It is a general rule, that a verdict shall not be used as evidence 
 against a man where the opposite verdict would not have been evi- 
 dence for him ; in other words, the benefit to be derived from the 
 verdict must be mutual.^ ^ This seems to be no more than a branch 
 
 * Strutt V. Bovingdon, 5 Esp. 56. In Buller's N. P. 40, it is said that a ver- 
 dict on an issue out of Chancery, to wliich only one of the defendants was 
 party, -may be read against all the defendants, to prove the time of the act 
 of bankruptcy. 
 
 ' Chrisiy v. Tancred, 9 M. & W. 438. 
 
 e Benson v. Olive, 2 Gwill. 701 ; Travis v. Chaloner, 3 Gwill. 1237. 
 
 '' Carr v. Eeaton, 3 Gwill. 12C1 ; but, as it is said, not conclusive evidence, 
 unless the Ordinary be a party to the first suit. 
 
 ' Lord Brounker v. Sir B. Atkins, Skin. 15. 
 
 ^ Bac. Abr., Ev. F. 
 
 ' B. N. B. 232, 233 ; Ca. K. B. 319 ; Hardr. 472 ; Bac. Abr. Ev., F. ; 4 Maul. & 
 Sel. 479 ; Co. Litt. 352 -, 1 T. R. 86 ; Com. Dig., Estoppel, D. ; E. v. The Warden 
 of the Fleet, B. N. P. 233 ; 12 Mod. 337 -, Gaunt v. Wainman. 3 Bing. N. C. (32 
 E. C. L. R.) 70, per Tindal, C. J. ; Doe v. Errington, 6 Bing. N. C. (37 E. C. L. 
 R.) 83. In the case of Whately v. Menheim and Levy, 2 Esp. C. 608, Lord Ken- 
 yon is said to have held, that a verdict on an issue out of Chancery, to try the 
 
 ' Whenever equity would subrogate a second plaintiff to all the rights of the 
 first, the judgment is conclusive of every fact necessarily adjudicated against 
 the defendant who is primarily liable: Lloyd v. Barr, 1 Jones 41.
 
 331 JUDICIAL DOCUMENTS. 
 
 of the former rule, that to make the judgment conclusive evidence 
 the parties must be the same, for then the benefit and prejudice 
 would be mutual and reciprocal. Where the parties are not the 
 same, one who would not have been prejudiced by tlie verdict cannot 
 afterwards make use of it, for between him and a party to such ver- 
 dict the matter is res nova, although his title turn upon the same 
 point.™ And the verdict ought not to be admitted to prejudice the 
 jury against the former litigant." Besides, the former verdict may 
 have *been obtained upon the evidence of the party who after- 
 L ' "'-' wards seeks to take advantage of it ; and this is one reason 
 why a conviction upon an indictment, which is always at the suit of 
 "the king, is not evidence in a civil action."^ 
 
 From the principles announced, it seems to be a general conse- 
 quence that a verdict in a civil proceeding will not be evidence either 
 against, or for a party in a criminal proceeding. The acquittal in an 
 
 question whether A. and B. were partners, was evidence for a third person, in 
 an action against them to prove the partnership. Sed qu,, for there was no 
 mutuality ; and the verdict might have been obtained on the evidence of the 
 party who afterwards took advantage of it. 
 
 ^ B. N. B. 232 ; 3 Mod. 141 ; Hardr. 472. 
 
 ° In Gilb. Law of Ex. the principle is thus expounded : But a person that hath 
 no prejudice by the verdict can never give it in evidence, though his title turn 
 upon the same point, because, if he be an utter stranger to the fact, it is per- 
 fectly res nova between him and the defendant; and if it be no prejudice to the 
 plaintiff, had the fate of the verdict been as it would, he cannot be entitled to 
 reap a benefit ; for it would be unequal, since the cause is a new matter between 
 the parties, that the jury should be swayed by any prejudice ; for the letting in 
 of pre-judgments supposes that the case has been already decided, and that it 
 is not tried and debated as a new matter, but as the effect of some litigious cross 
 in the defendant, that holds out the possession when the cause has been decided 
 against him ; and this ought not to be thrown out upon him on a new inquiry. — 
 The same principle applies to depositions : Hardr. 472. 
 
 •* B. N. P. 233 ; Stra. 68 ; Gibso)i v. Macarty, Ann. 311; Bartlett v. Pickersgill, 
 Burr. 2255; Smith v. Rummons, 1 Camp. 9; Hathaway v. Barrow, Ibid. 151. 
 And the rule applies although the judgment was not so abtained : Blakemore v. 
 Glamorganshire Canal Company, 2 C, M. & R. 139, ^e>- Parke, B. 
 
 ' In an action of slander for charging the plaintiff with stealing certain pro- 
 perty, a record of conviction of the plaintiff for stealing the same property was 
 held, in New York, to be admissible prima facie evidence to prove a plea of 
 justification of the truth of the words spoken ; and it was held that the plaintiff 
 might disprove the larceny, by showing the fals'ty of the evidence on which the 
 conviction was founded : It was, however, further held that the record of con- 
 viction could not be received in evidence at all, if the defendant was a witness 
 in the criminal prosecution : Mayhee v. Avery, 18 Johns. 352 ; see England v. 
 Bourke, 3 Esp. C. 80; Cook v. Field, 3 Esp. C. 133. M.
 
 JUDGMENTS, ETC. — MUTUALITY. 332 
 
 action oujrht not to be admitted as evidence in bar of an indictment, 
 because the parties are not the same, and the king or the public ought 
 not to be prejudiced by the default of a private person in seeking his 
 remedy for an injury to himself; especially as upon the trial of the 
 indictment the testimony of the former plaintiff is admissible, which 
 was before excluded by his being a party to the cause. 
 
 By such additional evidence the jury may be induced to come to a 
 conti-ary conclusion.'' Neither, as it seems, is a verdict for the plaiyitiff 
 in a civil action evidence upon an indictment ;'^ for although the 
 defendant has had the opportunity to cross-examine the witnesses 
 and controvert the testimony of his opponent, yet it would be hard 
 that upon a criminal charge, which concerns his liberty, or even his 
 life, he should be bound by any default of his in defending his pro- 
 perty.^ 
 
 In addition to this, there is a want of mutuality ; the parties are 
 
 not the same, and the party would, until the recent change in the 
 
 law, have lost the privilege of proceeding against the jury in case of 
 
 a false verdict, by attaint. It is also to be observed, that the 
 
 adjudication in *the civil case would seldom be commen- ^ „„„^ 
 
 r 3831 
 surate with the matter intended to be proved in the criminal '- -' 
 
 case, since evidence sufficient to render a man responsible in 
 
 damages may be insufficient to prove that he acted with a criminal 
 
 intention. 
 
 Secondly, as to the identity of the fact. It is essential not only 
 that the parties should be the same, but that the same fact should 
 have been in issue in the former cause ; for if it was not in issue, the 
 jury could not have been attainted for a false verdict;' nor could a 
 new trial have been had upon it in that cause. 
 
 A verdict for the same cause of action between the same parties 
 is absolutely conclusive. And the cause of action is the same, when 
 the same evidence will support both actions, although the actions 
 may happen to be founded on different writs. ^ ^ Thus a judgment 
 
 P Gibson v. Macarty, Ca. temp. Hardw. 312; 11 St. Tr. 222. 
 
 1 11 St. Tr. 222. 
 
 ' B. N. P. 233 ; Hob. 53 ; Ricardo v. Garcias, 12 CI. & Fin. 368 ; Carter v. 
 James, 13 M. & W. 137. 
 
 " Per Lord Hardwicke, in Smith v. Gibson, R. T. H, 319, there are several 
 cases where a recovery in one action will be a bar to another action of the same 
 
 ' In an indictment for forgery in Illinois the court held the record of a civil 
 suit the best evidence to show the amount the defendant intended to defraud 
 the person whose name he forged : Noble v. People, 1 Breese 29. G. 
 
 ^ Johnson v. Smith, 8 Johns. 383 ; s. p. Thus a judgment for the defendant 
 in trespass de bonis asportatis is a bar to an action of assumpsit for the price of
 
 333 JUDICIAL DOCUMENTS. 
 
 in trespass will be a bar to an action of trover for the same taking.' 
 And a verdict in trover will be a bar to an action for money had and 
 received for the sale of the same goods." A recovery in trespass at 
 common law varied a writ of ravishment of Avard.'^ This is the test 
 
 nature ; but that is where the first recovery is a satisfiction for the very thing 
 demanded by the second action. In an action of trover the plaintiff recovers 
 damages for the thing, and it is as a sale of the thing to the defendant, which 
 vests the property in him, and therefore it is a bar to an action of trespass for 
 the same thing : and therefore it was held, that damages, on a contempt in pro- 
 hibition, which are recoverable only from the time of the prohibition granted, 
 were no bar to an action for suing the plaintiff in the Admiralty Court, where 
 the Court had no jurisdiction; see Sparri/^s case, 5 Co. 61 ; Preface to 8 Co., 
 and 6 Co. 7 a; and see Vol. II., tit. Record. 
 
 * Bla. R. 831 ; Com. Dig., Action, K. 3 ; see Carter v. James, as to different 
 securities for the same debt. 
 
 " Hitchen v. Campbell, 2 W. Bl. 827 ; 3 Wils. 308 ; see also Lechmere v. Top- 
 lady, 2 Vent. 169 ; 1 Show. 146. 
 
 ^ Hob. 94 : 2 Inst. 202. 
 
 the same goods : Rice v. King, 7 Johns. 20. In North Carolina it is held that ' 
 a recovery in trespass is not a bar to an action of detinue, unless the damages 
 in trespass were given for the property : Belch v. Holleman, 2 Ilayw. 328. But 
 a recovery in trespass was held, in South Carolina, to be a bar to an action of 
 trover, on the ground that in the former action the plaintiff was entitled to dam- 
 ages, not only for the injury done in taking away the goods but the value of 
 them : Johnson v. Parker, 1 N. & McC. 1. A recovery against one partner in a 
 printing office for a libel, and satisfaction of the judgment, are a bar to an action 
 against the other partner for the same publication : Thomas v. Rumsey, 6 Johns. 
 26. But a mere recovery against one of two or more joint tort-feasors is not, 
 in general, a bar to an action against another ; the former judgment must have 
 been satisfied; see Campbell v. Phelps, 1 Pick. 62; Yelv. 68 note, (Amer. ed.) ; 
 Sheldon v. Kibbe, 3 Conn. 214 ; Hatokins v. Hation, 1 N. & McC. 318 : Ewing v. 
 Ford, 1 Marsh. 475 ; Wilkes v. Jackson, 2 Hen. & Munf. 345. M. 
 
 In Connecticut a former judgment in a court of competent jurisdiction, in 
 which the right, in controversy in a subsequent action, was directly decided be- 
 tween the same parties, is admissible in evidence and conclusive, although the 
 cause of action in the former suit, and the object to be attained by it were dif- 
 ferent. Therefore when the defendant in an action of ejectment, brought to 
 recover possession of mortgaged premises, set up the defence of usury under the 
 general issue, and the plaintiff to defeat that defence offered in evidence the 
 record of a former judgment, in a suit bi'ought by him on a note for the mort- 
 gage debt, to which the defendant pleaded non assumpsit with notice of usury, 
 and on that issue a verdict was given and judgment rendered for the plaintiff, 
 it was held that such record was admissible and conclusive against the defence : 
 Belts V. Starr, 5 Conn. Rep. 550. I. 
 
 See also Cleaton v. Chnmbless, 6 Rand. 86; Gates v. Goreham, 5 Vt. 317; 
 Shafer v. Stonebreaker, 4 Gill & John's, 345 ; Towns v. Ninion, 5 N. H. 259 ; 
 Standish v. Parker, 2 Pick. 20 ; Marsh v. Pier, 4 Rawle 273 ; Agnew v. McElroy^ 
 10 S. & M. 552 ; Gilbert v. Thompson, 9 Cush. 348.
 
 JUDGMENTS, ETC. — IDENTITY OF THE FACT. 334 
 
 to know ^whether a final determination in a former action is r^oo^-i 
 a bar, or not, to tlie subsequent action ; and it runs through 
 all the cases in the books, both in real and personal actions. It 
 was resolved in Ferrer s case,"" that where one is barred in any action, 
 real or personal, by judgment upon confession, demurrer,^ verdict, 
 &c., he is barred as to that, or the like action of the like nature for 
 the same thing for ever ; for expedlt reipuhlioce ut sit finis litium. 
 By actions of the like nature are meant actions of the same degree, 
 and where a writ cannot be had of a higher nature.'' All personal 
 actions are of the same degree ;'' but a verdict in a personal action 
 was not a bar to a real action brought in the same right.'' 
 
 Where, however, the real merits of the present action have not 
 been at all inquired into in a former proceeding, issue may be taken 
 on the fact, if the judgment be pleaded in bar." Thus a recovery 
 
 "^ 6 Rep. 7. Overton v. Harvey, 1 L. M. & P. 233. It must be for the same 
 thing, therefore a second action may be brought upon the same agreement for 
 the breach of a different stipuhition in it : Bristowe v. Fairclough, 1 M, & G. 
 (39 E. C. L. R.) US ; Callander v. Dettrich, 4 M. & G. (43 E. C. L. R.) 68, and 
 a verdict for defendant on a plea of lib. ten. in an action for trespass to plaintiff's 
 close, will not estop the plaintiff in another action, unless it be shown that the 
 trespasses in both actions were committed on the same spot: Smith v. Royston, 
 8 M. & W. 386. 
 
 y But see Boileau v. Rutlin, 2 Ex. 665 ; Uutt v. Morrell, 3 Ex. 240. 
 
 ^ A bar in a writ of aiel was held to be a bar in a writ of besaiel ; and in a 
 collateral action, as cosenage ; for these are ancestral, and of the same nature ; 
 but would not bar a writ of right : 3 Wils. 308 ; 6 Rep. 7. 
 
 * And, therefore, in an action of trespass for taking a mare, it is a good plea 
 to the writ, that a replevin is pending for the same taking : 3 Wils. 308 ; 5 Rep. 
 61, b. And a verdict for the defendant in replevin, upon a plea of non tenuit 
 to a cognizance for rent arrear, concludes the plaintiff when sued by the party 
 under whom cognizance was made for the same rent : Hancock v. Welsh, 1 
 Stark. (2 E. C. L. R.) 347. 
 
 ** See Outram v. Morewood, 3 East 359. 
 
 * Lepping v. Kedgewin, 1 Mod. 207 ; Hitchin v. Campbell, 2 W. Bl. 827 ; 3 
 "Wils. 304. If the suit has been discontinued, or the plaintiff been nonsuit, such 
 judgment is not conclusive: 3 Bla. Com. 296. Withdrawing a juror, or dis- 
 charging jury by consent, cannot be pleaded as a bar in a second action: 
 Sanderson v. Nestor, R. & Moo. (21 E. C. L. R.) 402 ; Everett v. Youells, 3 B. 
 & Ad. (23 E. C. L. R.) 349. But the court would stay the proceedings in the 
 second action: Gibbs v. Ralph, 14 M. & W. 804. A judgment for plaintiff on 
 a plea in abatement for nonjoinder is no bar to another action against the 
 parties not joined: Godson v. Smith, 2 Moo. (4 E. C. L. R.) 157. So, in cases 
 of appeal or orders of removal, if the order be quashed, but not upon the merits, 
 numerous cases show that the respondent parish may obtain another order ; see 
 R. V. Wheelock, 5 B. & C. (11 E. C. L. R.) 511 ; R. v. St. Ann's, Westminster, 
 2 Sess. Ca. 525.
 
 335 JUDICIAL DOCUMENTS. 
 
 r^^qof;-] in one action cannot be ^pleaded in bar of a second, where 
 no evidence on the trial of the first action was given in sup- 
 port of the claim on which the second is founded.*^ Where issue is 
 r*^^fi1 *^^®" ^^ **^6 fact, whether the second action is brought for 
 the same cause of action as the first, evidence is admissible 
 
 el 
 
 of what passed at the trial, 
 
 ^ Seddon v. Tutop, 6 T. R. 607. So in the cases of Ravee v. Farmer, 4 T, R. 
 146, and GoUgliihj v. Jellicoe, Ibid, in note, it was held that an award made of 
 all matters in difference between the parties was no bar to any cause of action 
 that the plaintiff had against the defendant at the time of the reference, if the 
 plaintiff could prove that the subject-matter of the action was not inquired into 
 before the arbitrator. In the case of Dunn v. Murray, 9 B. & C. (17 E. C. L. 
 R.) 780, where a claim within the scope of a reference to an arbitrator was not 
 brought forward by the plaintiff as a matter in difference, it was held that he 
 could not afterwards make it the subject-matter of a fresh action. And there 
 Lord Tenterden, in giving judgment, referred to that of Lord Ellenborough in 
 Smith V. Johnson, 15 East 213, who laid it down that where all matters in differ- 
 ence are referred, the party, as to any matter included within the scope of such 
 reference, ought to come forward with the whole of his case ; and see Henderson 
 V. Henderson, 3 Hare 115. A plaintiff brought debt for rent and for stone 
 taken from a quarry, and before the trial brought another action for improperly 
 quarrying stone, with a count in trover for stone, and delivered bills of particu- 
 lars for similar quantities of stone ; on the first trial he gave no evidence as to 
 the claim for stone, but recovered as to the rest ; in the second, he had a verdict 
 for the stone taken away, and it was held by the Court of Exchequer, on a 
 review of the authorities, that the trial was not waived, nor the action barred, 
 by the former recovery : Hadley v. Green, 2 Tyrr. 390. But if a plaintiff, 
 having several causes of action, offers evidence of some in which he fails, he 
 cannot afterwards bring another action for those causes of action in which he 
 has failed: Per Best, C. J., in Stafford v. Clarke, 2 Bing. (9 E. C. L. R.) 382; 
 see Hall Y. Stone, 1 Str. 515; Markham v. Middleton, 2 Str. 1259; Todd v. 
 Stewart, 9 Q. B. (58 E. C. L. R.) 767. And if a defendant plead a set-off, 
 though he offers no evidence, and does not in any way attempt to substantiate 
 it, he will be estopped by a verdict on the plea against him from bringing any 
 action for the recovery: Eastmure v. Laws, 5 Bing. N. C. (35 E. C. L. R.) 444. 
 So if a plaintiff sue in an inferior court for a less sum, having a claim for a 
 larger sum, or having a demand for GOZ., consisting of three sums of 20Z. con- 
 sent at Nisi Prius to take a verdict for 40Z., he cannot afterwards bring a second 
 action for the residue : Lord Bagot v. Williams, 3 B. & C. (10 E. C. L. R.) 235; 
 Bee also Boicden v. Home, 7 Bing. (20 E. C. L. R.) 716 ; to the effect that a 
 nolle prosequi as to part of a sum for which interlocutory judgment has been 
 obtained, will bar any action for that part. 
 
 * Seddon v. Tutop, G T. R. 607 ; Marten v. Thornton, 4 Esp. C. 180, where an 
 arbitrator was examined as to the evidence laid before him. 
 
 ' A judgment upon a non-suit, even after hearing upon the merits is no bar 
 to a future action for the same cause: Bridge et al. v. Sumner, 1 Pick. 371 ; 
 Morgan et al. v. Bliss, 2 Mass. 113 ; Sed vide, Foster v. Atkinson, 1 Litt. 214.
 
 JUDGMENTS, ETC. — IDENTITY OF TUE FACT. 386 
 
 It is not, however, necessary that the fact to be proved by the 
 record should have been solely and specifically put in issue on the 
 
 A discontinuance of one action is no bar to another for the same cause: Hull v. 
 Blahe, 13 Mass. 155 ; see also Sweigart v. Fre;/, 8 S. & R. 299. It is only where 
 the question between the parties has been once decided upon confession or 
 verdict that the judgment is a bar to another action ; and not where the party 
 fails by reason of some technical defect : Benton v. Cuffy, Camp. & Nor. 98. A 
 recovery in a former action apparently for the same cause is only prima facie 
 evidence that the demand has been tried, and may be repelled by showing that 
 it is a distinct demand, in relation to which no testimony was offered on the 
 trial of the former cause. But if a claim is submitted to a jury and they dis- 
 allow it or allow less than the plaintiff is entitled to recover or overlook part 
 of his demands a verdict and judgment thereon are a conclusive bar to a 
 second action for the same cause: Phillips v. Berick, 16 Johns. 136; Tnvin 
 V. Knox, 10 Johns. 365; Brockicay \. Ken)ie.tj, 2 Johns. 210; Plainer v. Best, 
 11 Johns. 530; Snider et al. v. Croi/, 2 Johns. 227; Whittemore v. Whitte- 
 viore, 2 N. H. 28; Ryer v. Attvater, 4 Day 431. (It is however necessary 
 in order to constitute an estoppel by a former judgment, that the precise 
 point which is to create the estoppel should have been put in issue and de- 
 cided, and this must appear from the record alone : Smith v. Sherwood, 4 
 Conn. 276. — I.) It is said by Woodbury, J., in Whittemore v. Whittemore, 
 uhi supra, that the presumption that the demand in a suit is in fact res 
 adjitdicata may be rebutted in all cases where it has not been the specific 
 subject of a former action. Where evidence which is offered to prove one of 
 several demands is rejected by the judge, and the plaintiff suffers a verdict 
 to pass on the whole case, the judgment on that verdict is a bar to a future 
 action on the demand not before proved : Smith v. Whiting, 11 Mass. Rep. 445. 
 But " if a person sues upon several and distinct causes of action, and submits 
 only a part of them to the jury, he is not precluded from suing again for such 
 distinct cause of action as was not passed upon:" Wheeler y. Van Houten, 12 
 Johns. 313. If the plaintiff's demand consists of a claim indivisible in its 
 nature, the defendant cannot be vexed by having the claim divided into separate 
 suits ; and a judgment in a suit for part of the claim is a bar to a subsequent 
 action to recover the remainder: Smith v. Jones, 15 Johns. 229; Farrington et 
 al. V. Payne, 15 Johns. 432. In Uess's Exr. v. Heebie, 6 S. & R. 57, a former 
 recovery in a suit, in which the plaintiff counted for an entire sum,, was held to 
 be a bar to another suit brought on the same contract, to recover a sum included 
 in the declaration in the first suit ; and the plaintiff was not permitted to show 
 that no evidence was given to the former jury in support of the claim last sued 
 for : see Lord Bagot v. Williams, 3 Barn. & Cress. 235 ; Ingruham v. Hall, 
 11 S. & R. 78. Where the payee of a note, on which payment has been made, 
 but not indorsed, recovered the whole sum apparently due on it, upon the 
 maker's becoming defaulted, the judgment was held in Massachusetts to be no 
 bar to an action by the maker to recover the sum before paid by him : Howe v. 
 Smith, 16 Mass. 306. Aliter, in New Hampshire, 1 N. H. 33; Tiltonw. Gordon. 
 So where judgment was obtained by default, upon an account annexed to the 
 writ, in which the defendant was credited for certain goods ; it was held that 
 the judgment was no bar to an action against the plaintiff for the same goods,
 
 336 JUDICIAL DOCUMENTS. 
 
 former trial ; it is sufficient if it was a fact essential to the finding of 
 that verdict. A verdict against a- division of a parish, for not repair- 
 ing a road, is afterwards (in the absence of fraud) conclusive as to the 
 obligation to repair, although the verdict also involve another fact; 
 viz., that the road was out of repair.^ So a verdict in an action for 
 diverting water from the plaintiff's mill, is evidence in a subsequent 
 action for a similar injury at a subsequent time, as to the right to the 
 water. ^ In such case, however, the record would operate as evidence 
 only, and not as an estoppel.^ 
 
 f R. V. St. Fancras, Peake's C. 219 ; 2 Saund. 159 ; 2 Camp. C. 494 ; see tit. 
 Highway. 
 
 8 Strutt V. Bovingdon and others^ 5 Esp. 56, although other defendants be 
 joined in the second action to the sole defendant in the lirst, but who justify 
 under that defendant : Ibid. 
 
 "^ Lord Ellenborough said, that although the former recovery could not be 
 deemed to be a legal estoppel, so as to conclude the rights of the parties by its 
 production, he should think himself bound to tell the jury to consider it as 
 conclusive: 5 Esp. C. 59. 
 
 they not having been credited by him at their full value: Minor v. Walter, 17 
 Mass. 237. But where, to an action on a promissory note upon which partial 
 payments were indorsed, the defendant made defence, and judgment was finally 
 rendered against him for the amount appearing to be due after deducting the 
 sums indorsed ; it was held to be a bar to an action by the defendant to recover 
 the amount of other payments, alleged to have been made on the note, but not 
 indorsed nor allowed, in the former action : Loring v. Mansfield, 17 Mass. 394. 
 A plaintiff who had brought two actions upon the same articles of agreement, 
 i\i one of which he had recovered, was held not to be estopped in the other 
 action in which he had declared specially on the contract, from proving the con- 
 tract as laid, although it might be inconsistent with the record of recovery in 
 the other action : Hess v. Heebie, 4 S. & 11. 246. So when there has been a 
 submission of all demands, and an award thereon, it is held in Massachusetts 
 and New Hampshire that one of the parties may maintain an action upon a 
 particular demand, by showing that it was not laid before the referees: Webster 
 V. Lee, 5 Mass. 334 ; Whittemore v. Whittemore, 2 N. 11. 26. Aliter, in New 
 York ; Wheeler v. Van Houten, 12 Johns. 311. The court in New York took a 
 distinction (somewhat shadowy) between a submission of "all matters in dif- 
 ference," as in the cases cited in the text, and a submission of "all demands." 
 So in the case of Johnson v. Smith, 15 East 213, Lord Ellenborough, "without 
 deciding against the authority of Goiightly v. Jcllicoe," held, Grose and Bayley, 
 Js., concurring, where parties referred "all manner of actions and causes of 
 action" to arbitrators, who awarded a balance to be paid by the defendant to 
 the plaintiff, that on a rule for an attachment for not performing the award, the 
 defendant could not claim a deduction of a certain demand due to him from the 
 plaiiitiir, on the ground that such demand was no part of the dispute between 
 the j)arties and had not been submitted to nor taken into the consideration of 
 the arbitrators. M.
 
 ADJUDICATION MUST BE DIRECT. 337 
 
 It is not necessary that the former verdict should *havebeen 
 founded upon the same precise subject-matter, provided the ^ ' -' 
 question be the same, and bet^veen the same parties. It is laid down 
 that "it is not necessary that the verdict should be in relation to the 
 same land, for the verdict is only set up to prove the point in ques- 
 tion ; and every matter is evidence that amounts to a proof of the 
 point in question."' If the question be the same, it is immaterial 
 whether the parties stand in the same relative position to each other in 
 the second action as in the first; as whether the plaintiff in the first 
 action be plaintiff, or defendant in the second.*^ 
 
 Where the same party sues, or is sued, in a different capacity, and 
 in a different right, he will not be concluded by the former record. 
 Thus, if a party sue as administrator, and fail, he will not be 
 estopped from maintaining an action against the same defendant as 
 executor.' So if one claim as heir to his father, he will not be • 
 estopped from afterwards claiming as heir to his mother.™ 
 
 TliirdJy. As to the nature and manner of the adjudication; the 
 judgment, decree or sentence must be direct upon the precise point, 
 and it is not evidence of any matter Avhich came collaterally in ques- 
 tion, although it was within the jurisdiction of the court, nor of any 
 matter itixidentally cognizable, nor of any matter to be inferred by 
 argument from the judgment, as having constituted one of the 
 grounds of that judgment."' For it *is obvious, that al- rtqqo-i 
 though the matter e.xpressly adjudicated upon is certain, 
 
 ' B. N. P. 232; Shenvin v. Clarges (1700) 12 Mod. 343. It seems, however, 
 that in such a case the verdict would not be conclusive. In Gilb. Law of Ev. 
 29, the case is put as one of persuading evidence to a jiJry. And see Cleve v. 
 Powell, supra. So in equity, on a bill filed to have a bill of exchange cancelled 
 and delivered up, upon an allegation that it was given for a gambling debt, a 
 verdict for the plaintiff in equity in an action at law on the bill brought by the 
 defendant in equity, is admissible evidence : Pearce v. Gray, 2 Y. & C, Ch. R., 322. 
 
 ^ Mondel v. Steel, 8 M. & W. 858 ; Easimure v. Laws, 5 Bing. N. C. (35 E. C. 
 L. R.) 444, supra, 
 
 ' Robinson^ s case, 5 Rep. 32. 
 
 ° Com. Dig., Estoppel, C. 
 
 ° See the opinion of De Grey, C. J., in The Duchess of Kingston''s case, 20 
 IIow. St. Tr. 355 ; 2 Smith's L. C. 425, s. c. : Ilarg. Law Tracts 456 ; 2 Pothier, 
 by Evans, 357 ; Lewick v. Lucas, 1 Esp. C 43, Action on the case for unskil- 
 fully varnishing engravings : the defendant proposed to give in evidence the 
 record in an action in which he recovered against the present plaintiff for work 
 and labor, and to show by parol evidence that the two actions related' to the 
 
 ' If it do not appear from the face of the record in the former suit, it is com- 
 petent to prove by parol that the same matter did arise in the former suit, and
 
 338 JUDICIAL DOCUMENTS. 
 
 the grounds of the adjudication are often uncertain ; and that a par- 
 ticular ground cannot be safely inferred and relied upon, especially 
 where its effect is to be conclusive. To permit this would induce the 
 necessity of unravelling the materials of the former decision ; for it 
 would be manifestly unjust to admit a presumption that a particular 
 fact was established upon the former inquiry, and yet not to allow 
 that presumption to be rebutted by proof that it is unfounded In 
 Blackharii s case° which was an action of trover, the defendant 
 
 same work. Lord Kenyon rejected the evidence, because the record was general ; 
 and, in order to render a record evidence to conclude any matter, it should appear 
 from the record itself that that matter was in issue ; nor should evidence be 
 admitted that under such a record any particular matter came in question. The 
 record in the former action was general ; and to inquire whether it was for the 
 work done in varnishing the prints, and whether the defendant in that action 
 had availed himself of the circumstance of their being unskilfully done, would 
 be to try that same case again. (But see as to this Mondel v. Steel, 8 M. & W. 
 858 ; Bigge v. Burbridge, 15 M. & W. 598.) In some instances, however, it is 
 necessary to show by parol evidence to what particular subject-matter a record, 
 general in its terms, was applied ; as, for instance, where a defendant pleads a 
 recovery by the plaintiff in a former action for the same subject-matter, and 
 where issue is taken on the question, whether the former verdict embraced the 
 present claim. And where the appellant parish, on a second order, shows that 
 the former order was quashed upon appeal, the respondents may show that it 
 was quashed on the preliminary objection that the pauper was not chargeable : 
 R. V. Wheelock, 5 B. & C. (11 E. C. L. R.) 511 ; Vol. II., tit. Settlement ; and see 
 Beed v. Jackson, 1 East 355 ; Bex v. Wick, St. Lawrence, 5 B. & Ad. (27 E. C. 
 L. R.) 526 ; R. V. Knaptoft, 2 B. & C. (9 E. C. L. R.) 883 ; Beg. v. Soiv, 4 Q. B. 
 (45 E. C. L. R.) 93. 
 
 1 Salk. 290; 3 Bro. P. C. 2d ed. 595; Ibid. 619. See, as to Blackham's 
 case, Bans v. Jackson, 1 Phil. Ch. Rep. 588. 
 
 was tried upon the pleadings in the record : Burt v. Sternhainjh, 4 Cow. 559. 
 Contra, Camj^bell v. Butts, 3 Comst. 173. Parol proof may be given to show the 
 grounds on which a former judgment proceeded, when, from the form of the 
 issue such grounds do not appear by the record itself; provided the matters 
 alleged to have been passed upon be such as might have been given in evidence 
 under the issue joined: Briggs v. Wells, 12 Barb. 567; Birckhead v. Brown, 5 
 Sandf. 134 ; Gray v. Gillilan, 15 111. 453 ; Chamberlain v. GaiUard, 2 Ala. 504 ; 
 Coleman's Appeal, 12 P. F. Smith 252. The record of a former recovery appa- 
 rently for the same cause of action as that which is the foundation of a subse- 
 quent suit is primd facie evidence only that the demand had been once tried, 
 and the plaintiffs may repel it by showing that it was a distinct demand, in 
 relation to wiiich no testimony had been offered on the trial in the former cause, 
 and that it arose out of a separate and unconnected transaction: Broion v. King, 
 ]() Mo. 56. Agreements of counsel on file, and the testimony of the judge and 
 jurors who tried a case are admissible as evidence of what was in litigation : 
 Burr v. Woodrow, 1 Bush 602; Kerr v. JIa>/s, 35 N. Y. 331.
 
 ADJUDICATION MUST BE DIRECT. 338 
 
 proved that the goods were Jane Blackham s in her lifetime, and 
 that he *had administered to her eflTects. The plaintiff r^poq-i 
 proved that Jane Blachham was married to him a few days 
 before her death. The defendant contended that the plaintiff was 
 concluded by the letters of administration granted to himself, since 
 the letters of administration must have been founded upon the pre- 
 sumption that there was no such marriage. But Holt, C J., said, a 
 matter which has been directly determined by the sentence of the 
 proper court, cannot be gainsaid ; their sentence is conclusive in such 
 cases, and no evidence shall be admitted to prove the contrary; but 
 that is to be intended only in the point directly tried ; otherwise it 
 is, if a collateral matter be collected or inferred from their sentence, 
 as in this case, because the administration is granted to the defend- 
 ant; therefore, they infer that the plaintiff was not the intestate's 
 husband, as he could not have been taken to be if the point there 
 tried had been married or unmarried, and their sentence had been, 
 not married. So, although it was once held that the production of 
 the probate by a prisoner indicted for the forging of a will, was con- 
 clusive evidence for him,P the contrary has since been frequently ad- 
 judged, and is now settled law.'' So the refusal of letters of admin- 
 istration, on the ground that the applicant was not married to the 
 deceased, is not evidence to disprove the marriage in a court of law.'" 
 And a sentence of excommunication against the father and mother 
 for fornication is not evidence to disprove the legitimacy of the son.^ 
 Letters of administration granted to the plaintiff', as administrator of 
 the goods of A. B., are not evidence of the death of A. B^ So on 
 an appeal against an order of removal, where the respondents relied 
 on a settlement derived from *the pauper's father, and pro- 
 posed to give in evidence of it an order for the removal of •- -' 
 the pauper's brother to the appellant parish, and the examination on 
 which it was founded, which would have shown that the brother's 
 settlement was derived from the father, the court thought the Ses- 
 sions had properly rejected the evidence on that ground." And 
 Avhere, in an action on a bond, the defendant pleaded that there was a 
 usurious agreement between him and the plaintiff, and the bond was 
 
 P R. V. Vincent, Str. 481 ; R. v. Rhodes, Ibid. 703. 
 
 1 R. V. Sterling, Leach Ul ; R. v. Buttery and another, R. & R. C. C. 342 ; and 
 R. V. Gibson, Lancaster 1802, cor. Lord Ellenborough ; 2 Evans's Pothier 356. 
 ■■ Rep. term. Hardwicke 12. 
 
 ° Hilliard v. Phaley, 8 Mod. 180; and see Robin's case, ante, p. 325, note (e). 
 ' Thompson v. Donaldson, 3 Esp. C. 63. 
 » Reg. V. Soic, 4 Q. B. (45 E. C. L. R.J 93. 
 21
 
 340 JUDICIAL DOCUMENTS. 
 
 given in pursuance thereof, and issue was joined on this List allega- 
 tion, upon which the defendant had a verdict ; it was held in another 
 action between them on the mortgage deeds given at the same time, 
 that the plaintiff was not estopped from denying that there had been 
 a usurious agreement, no issue having been taken upon that precise 
 point." 
 
 It seems, also, that the former judgment or sentence must not only 
 be direct, but also final^ and conclusive'^ in the court of which it is 
 a judgment; for if it do not decide the fact there, it cannot have a 
 greater effect in any other coui't.'' Hence, although a sentence in a 
 
 ^ nictitation suit *has been admitted in evidence as to the fact 
 
 r*3411 • • 
 
 •- -'of marriage in a temporal court, it seems in principle to be 
 
 wholly inadmissible.'' And it has been held that proceedings which 
 
 would not constitute an estoppel, are not prim d facie evidence of the 
 
 ^ Carter v. James, 13 M. & W. 137. But a verdict and judgment are not evi- 
 dence of immaterial matter involved in the issue : Shearm v. Buriiard, 10 Ad. 
 & E. (37 E. C. L. R.) 593. 
 
 y Pitn v. Curell, 6 M. & W. 234. Therefore, neither the issue nor the nisi 
 prius record is evidence, where no judgment has been had : Holt v. Miers, 9 C. 
 & P. (38 E. C. L. R.) 191. 
 
 ^ See the judgment of C. J. De Grey, 50 Hoav. St. Tr. 355. 
 
 ^ In Doe d. Tatham v. Wright, Lane. Summer Ass. 1836, cor. Coleridge, J., 
 the question was as to the capacity of M. to make a will : the defendant, claim- 
 ing under a supposed will, tendered in evidence a decree in equity dismissing a 
 bill filed by the plaintiff's lessor, to set aside the will on the ground of fraud, 
 and influence exercised by the defendant, also an order to try the issue devisavit 
 vel 71011, the jiostea and verdict finding the devisavit with a view to establish the 
 fact of the former jury having so found. Coleridge, J., on a subsequent day, 
 delivered his opinion, that though the decree and postea were admissible evi- 
 dence for the purpose of warranting the admission of the evidence given on the 
 trial of the former issue by witnesses since deceased, those documents were in- 
 admissible to prove the former verdict. The decree, he observed, decides 
 nothing ; it is not conclusive : the question is, whether the verdict be admissible 
 in evidence; as matter of opinion the judgment is unnecessary ; but it is not con- 
 tended that it is unnecessary. The judgment, however, decides nothing, and 
 therefore the verdict on which it is founded decides notliing. The verdict is 
 not severable from the decree as a matter of common law decision, because 
 there is no power of reversing the judgment at common law ; the admission, 
 therefore, of the former verdict as evidence, would tend only to prejudice the 
 inquiry. 
 
 The defendant's counsel afterwards insisted that as the ^^o.v/ca was evidence 
 for one purpose he had a right to have tlie whole read, upon which Coleridge, 
 J., thought he was in strictness entitled to have it read, and it was read accord- 
 ingly. 
 
 '' Sec The Duchess of Kiinjstoris case, 20 How. St. Tr. 355.
 
 ADJUDICATION MUST BE FINAL. 341 
 
 fact." A colonial judgment cannot be pleaded in bar of an action in 
 tbis country, unless it would have been conclusive in the colony, al- 
 though the judgment has been pronounced by a court of error in the 
 colony, and by the King in Council.** Neither will a foreign judg- 
 ment be acted upon where the proceedings are imperfect. "^ A decree 
 in a foreign court of equity will not support an action where the 
 amount of the sum due is left indefinite.*^ 
 
 Fourtldy and jiftldtj, assuming, then, that a court of competent 
 jurisdiction has adjudicated directly upon a particular matter, the 
 next question is as to the application and effect of that judgment in 
 proof of the same disputed fact. The adjudication is offereil to prove 
 either, first, *the same fact for the same purpose, that is, ^ , ^^ 
 where the same matter is again litigated' in a court of con- •- "'-' 
 
 " Wright V. Doe d. Tutham, 1 Ad. & Ell. (28 E. C. L. R.) 17, 18. 
 
 ^ Plummer v. Woodburne, 4 B. & C. (10 E. C. L. R.) 625; Smith v. Nicolls, 
 5 Ring. N. C. (35 E. C. L. R.) 222. 
 
 « Obicini v. Bligh, 8 Biug. (21 E. C. L. R.) 351. As to whether a foreign, 
 colonial, or Irish judgment or decree, not in rem, is conclusive, 8ee post. 
 
 ^ Sadler v. Robins, 1 Camp. 253 : and see Henleij v. Super, 8 B. & C. (15 E. 
 C. L. R.) 20. 
 
 s A judgment bj default is not evidence by way of admission, where the same 
 cause is removed to a higher court. Upon the removal, by habeas corpus, of the 
 cause from the inferior court, the defendant having suffered judgment by 
 default, it was held that it was not receivable in evidence against him as an 
 admission of a cause of action •, upon the removal, both parties were to be con- 
 sidered as in the same situation as if no such judgment had been given : Bot- 
 tings V. Firby, 9 B. & C. (17 E. C. L. R.) 762. See Tidmus v. Lees, 5 C. & P. 
 (24 E. C. L. R.) 233, where Lord Tenterden received such evidence, but the 
 plaintiff was afterwards nonsuited. So a verdict on a former trial is not evi- 
 dence on a new trial : Rogers v. Goddard, 2 Show. 255. But it has been seen 
 that if a party omit to plead that which would have been a bar to the former 
 action, he cannot plead that matter to an action on the judgment: 2\>dd v. 
 Maxjield, 6 B. & C. (IS E. C. L. R.) 105 ; and see above, p. 324, note [z) ; Hen- 
 derson V. Henderson, 6 Q. B. (51 E. C. L. R.) 288, post, p. 353. After a com- 
 plaint against the sheriff by motion, and special relief given, an action is not 
 maintainable against him: Cameron v. Reynolds, Cowp. 403. A cessio bonor%im 
 in Scotland does not discharge the party from a contract in England : Phillips 
 V. Allan, 8 B. & C. (15 E. C. L. R.) 477. Seciis, if the plaintiff be entitled to a 
 distributive share : Ibid. In the case of a joint and several obligation, a judg- 
 ment and execution without satisfaction against one is no bar : Lechmere v. 
 Fletcher, 1 Cr. & M. 623 ; Brown v. Wooton, Cro. J. 73 ; Com. Dig., Action, L. 
 4. Two being liable on a contract, the Statute of Limitations runs : one 
 promises to pay his proportion, a joint action is brought against both, a vei'dict 
 is found against the party so promising, and a verdict on the general issue for 
 the co-defendant ; on a second action brought against the former, on the special 
 promise, the verdict and judgment for the co-defendant are no bar: Lechmere 
 V. Fletcher, 1 Cr. & M. 623.
 
 342 JUDICIAL DOCUMENTS. 
 
 current jurisdiction ; or, secondly, to prove the same fact for a differ- 
 ent or collateral purpose. In the first case, according to the judg- 
 ment of C. J. De Grey, already cited, "^ tlie judgment is as a plea a 
 bar, and as evidence conclusive between the same parties.' In order, 
 however, to make such a judgment operate as a conclusive bar in a 
 civil action merely as an estoppel, it is necessary to plead it as 
 *an estoppel.'' If a part}' will not rely on an estoppel Avhen 
 L J he may, but takes issue on the fact, the jury will not be 
 bound by the estoppel, for they are to find the truth of the fact.' 
 They cannot indeed find anything against that which the parties have 
 affirmed and admitted on record, although such admission be contrary 
 to the truth ; but in other cases, though the parties be estopped to say 
 the truth, the jury are not, as in Groddard's case,"^ where, in an action 
 on a bond to a deceased intestate, the defendant pleaded the death of 
 the intestate before the date of the bond, as alleged in the declara- 
 tion, and so concluded that the writing Avas not his deed ; on which 
 issue was joined, and it was held that the jury were not estopped from 
 finding that the bond was executed nine months before it bore date, 
 and in the lifetime of the intestate. 
 
 In an action on the case for diverting water from the plaintiff"'s mill, 
 the defendant gave in evidence the record of a judgment in a former 
 action between the same parties for the same cause of action, in which 
 the defendant had pleaded not guilty, and obtained a verdict. It was 
 contended, both at the trial and afterwards in banc, that the plaintiff" 
 r^oAA-i ought to be nonsuited: but it was held that it *was not con- 
 clusive, upon the plea of not guilty, although it would have 
 
 " Vide sujyra, p. 323 ; 20 How. St. Tr. 355 ; Hargr. Law Tracts 456 ; 2 
 Pothier, by Evans, 357 ; 3 Wils. 304. 
 
 i B. N. P. 244 ; Stra. 961 ; 4 Co. 44 ; Cowp. 315 ; 8 T. R. 620 ; Burr. 1005. 
 
 '' Com. Dig., tit. Estoppel, A. ; Outram v. Morewood, 3 East 354 ; 16 East 334. 
 A plaintiff is estopped by livery of seisin, unless he show by the deed that the 
 delivery was conditional: Co. Litt. 225; Litt. 363. But the jury are not 
 estopped under the general issue: Co. Litt. 226 ; Litt. 366 ; see further Vol. IL, 
 tit. Record. See the Digest, De Exceptione Rei Judicatae, 44; tit. 1, 2. The 
 judgment not being pleaded is not conclusive, although the form of action was 
 such (ejectment) that the defendant had no election: Doe dem Strode v. Seaton, 
 2 C. M. & R. 728. But see 2 Smith's Lead. Cas. 444 ; Magrath v. Hardy, 4 Bing. ' 
 N. C. (33 E. C. L. R.) 782 ; Dimes v. Grand Junction Canal Co., 9 Q. B. (58 
 E. C. L. R.) 517 ; Freeman v. Couke, 2 Ex. 654. 
 
 ' Vooght V. Winch, 2 B. & Aid. 662; Bowman v. Rostron, 2 Ad. & E. (29 E. C. 
 L. R.) 295; Trevivan v. Lawrence, Sulk. 276; Hannaford v. IJvnn, 2 Car. & P. 
 (32 E. C. L. R.) 148 ; Magrath v. Hardy, 4 Bing. N. C. (33 E. C. L. R.) 782. 
 
 " 2 Rep. 4 ; B. N. P. 296. See jwst, as to admissions on the record.
 
 ADJUDICATION MUST BE FINAL. 344 
 
 been so, liad it been pleaded by way of estoppel, for the defendant 
 had elected that the matter should be considered by a jury upon 
 evidence, and it was left open to them to inquire into the same upon 
 evidence, and to give their verdict upon the whole of the evidence 
 submitted to them. And the case of Bird v. Randall,'^ where Lord 
 Mansfield was reported to have said that a former recovery need not 
 be pleaded, but will be a bar when given in evidence, was denied ; 
 and it was said that the judgment in a former action for the same 
 cause did not necessarily show that the plaintiff had no cause of 
 action. If the matter had been pleaded it would have operated as an 
 estoppel ; but having put it to the jury to find what the fact was, it 
 was inconsistent with the issue which the defendant had joined, to 
 say that the jury were estopped from going into the inquiry. He 
 might, however, use the former verdict as evidence, and pregnant 
 evidence to guide the jury who were to try the second cause to a 
 verdict in his favor ; but if, notwithstanding the prior verdict and 
 judgment, the jury thought the case was with the plaintiff, they were 
 not estopped from finding the verdict accordingly."^ 
 
 " 3 Burr. 1345. 
 
 ° Vooght V. Winch, 2 B. & Aid. 662. Assuming that the former verdict was 
 founded on evidence as to the right, it is exceedingly difficult to say what degree 
 of weight in the scale is to be attributed by the latter jury to the opinion of the 
 former, without the means of knowing the reasons which led them to that deci- 
 sion, or how far they are to distrust their own judgment, formed on grounds 
 which they do know, in order to embrace that formed on grounds which they 
 do not know. The following observations are taken from Douglas on Contested 
 Elections : " It Avill be remarked that the evidence of a former vei'dict is gener- 
 ally (except where it is directly conclusive) cautiously to be received by a jury 
 who are to decide on their own conscientious conviction, and not on that of other 
 men. If there was clear and full proof to guide the opinion of a former jury, 
 another jury will be satisfied with like proof; if the evidence before was doubtful 
 in its nature, no verdict will render it otherwise, while the facts remain the 
 same. Perhaps there is among men in general too great proneness to be preju- 
 diced in matters of fact, and even in points of conscience, by the notions or 
 determinations of others who may have been antecedently so prejudiced them- 
 selves, instead of attending to their most solemn duty, when called by the nature 
 of the subject to use their own. On the whole, though tlie verdict of one jury 
 may be evidence to another, and that verdict may vary in its real force, yet 
 generally it seems to be evidence merely admissible ; it is wisely limited by the 
 law within very narrow bounds. In proof of an ancient custom it is very 
 strong." See further Vol. II., tit. Record. In an action for mesne profits, the 
 judgment in ejectment is not, it has been held, conclusive in evidence: Doe v. 
 Huddart, 3 C, M. & R. 316 ; see Bowman v. Eostron, 2 Ad. & E. (29 E. C. L. 
 R.) 295. 
 
 ' The same doctrine is held in Connecticut and Tennessee : Church v. Leaven-
 
 345 JUDICIAL DOCUMENTS. 
 
 r*Qif;i *^^ ^^^ cases, however, in corisiilering the effect of the 
 iudgment, rejjard must be had to the extent of the matter 
 actually decided thereby. A conviction of inhabitants of a parish 
 upon an indictment for not repairing a road is conclusive of their 
 liability to repair it ; but an acquittal will not establish their non- 
 liability ; for, while the conviction is a judgment of their liability to 
 repair, the acquittal merely shows that they were not proved to be 
 then liable to indictment.^ For the same reason, an order of sessions 
 confirming an order of removal is conclusive proof of the pauper's 
 settlement at the date of the first order ; but such an order, quash- 
 ing an. order of removal, merely shows that when the latter order 
 was made the appellant parish was not bound to receive the' pauper.'' 
 
 It seems that an acquittal on an information in rem in the Ex- 
 chequer, would not be conclusive upon strangers in the same manner 
 as a conviction would be."" 
 
 The above general rule, that a judgment by a court of competent 
 jurisdiction upon the same matter, between the same parties, and for 
 the same purpose, is conclusive, appears to comprehend not only all 
 adjudications by the courts of this country, whether of record or not, 
 r*^in ^^^ ^^^ *those of foreign courts.^ It has, indeed, been sug- 
 gested that the judgments of the courts in this country, 
 which are not of record, aftord mere prima facie evidence of the 
 subject-matter to which they relate, and are liable to be controverted 
 by opposite evidence. This position does not, however, seem to be 
 warranted by any decision, or to be tenable upon principle. 
 
 The question, also, whether the judgments of foreign courts, when 
 actions are brought upon them here, are conclusive, or merely 
 
 P R. V. St. Pancras, 1 Pcake 220. 
 
 E. V. Wick, St. Lawrence, 5.B. & Ad. (27 E. C. L. R.) 526 •, 5 B. & C. (11 E. 
 C. L. R.) 511. 
 
 ' B. N. P. 245 ; 2 Ph. Ev. 9th ed. 38, 39 ; s. v. per Lord Kenyon, Cooke v. 
 Shall, 5 T. R. 256. 
 
 » See Sidaway v. Hay, 3 B. & C. (10 E. C. L. R.) 12, where it was held that a 
 debt contracted in England was discharged under a sequestration in Scotland, 
 issued under 54 Geo. III. c. 137. But that was on the construction of the par- 
 ticular statute. See further, Smith v. Buchanan, 1 East 6 ; Potter v. Broivn, 5 
 East 124 ; Pedder v. McMaster, 8 T. R. 609 ; Quin v. Shea, 2 II. B. 553 ; Jeffery 
 V. McTaggart, cited 3 B. & C. (10 E. C. L. R.) 22. 
 
 worth, 4 Day 274 ; Canaan v. Green Woods Turnpike, 1 Conn. 1 ; Edwards v. 
 McConneU, Cooke 305; but in Virginia, the judgment, in such case, is held to 
 be conclusive: Skelton v. Barbour, 2 Wash. 64; Preston v. Harvey, 2 Hen. & 
 Munf. 55. M.
 
 FOREIGN JUDGMENTS, WHEN CONCLUSIVE. 346 
 
 primd facie evidence of the debt, has been the subject of considera- 
 ble doubt, but the former position seems to be best supported both 
 by principle and analogy to decided cases.'' That the evidence in 
 these cases is merely primd facie, is a position wliich rests chiefly 
 on these authorities : in the case of Walker v. Witter,'' which was an 
 action on a judgment in Jamaica, in Avhich it was observed in- 
 cidentaUy'^ that courts not of record, or foreign courts, or courts in 
 Wales, have not the privilege of not having their judgments con- 
 troverted ; the case of Sinclair v. Frazer^ which was an action in 
 Scotland upon a judgment in Jamaica, in which the court required 
 evidence of the original debt, and in which, upon appeal to the 
 House of Lords, it was resolved, that the judgment of a court in 
 Jamaica ought to be received as primd facie evidence of the debt; 
 also, a dictum of Eyre, C. J., in giving judgment in the case of 
 Phillips V. Hunter,^ in which he considered foreign judgments as 
 matters '^in pais and primd facie sufficient to raise a promise. r*oi y-i 
 It is to be observed, in the first place, that these authorities 
 are all, with a view to this question, extra-judicial. In Walker v. 
 Witter, and Sinclair v. Frazer, the only question necessary to be 
 determined was, whether, on proof of a foreign judgment in his 
 favor, the plaintiff was entitled to recover against the defendant, 
 without entering into the original consideration on which the judg- 
 ment was founded ; and the question how far such evidence was 
 controvertible did not arise ; and the case of Phillips v. Hunter, was 
 decided against the opinion of Eyre, C. J., by the three other 
 judges. Secondly, the position in Walker v. Witter, and the obser- 
 vation of Buller, J., in support of it, in a subsequent case,^ proceed 
 upon the supposition that no judgments are conclusive except those 
 of record in this country ; and that the judgment of a foreign court 
 could not be entitled to greater credit than the judgment of a court 
 not of record in this country. But this seems to be doubtful, at the 
 least. In the case of Moses v. Macfarlane^ which *has been ^ , ^ ,qt 
 the subject of strong animadversion, on account of its ten- •- ^ 
 
 * See Martin v. Nicolls, note [r), post, p. 352; and cases, ^05^, p. 353. 
 » 1 Doug. 1. 
 
 ' See Mr. Evans's observations, 2 Pothier, by Evans, 349. 
 y Cited 1 Doug. 5. * 2 11. B. 402. 
 
 * Galbraith v. Neville, 1 Doug. R. 6, n. 2 ; and 5 East 475. 
 
 '' 2 Burr. 1005. Macfarlane sued Moses in the Court of Conscience, as the 
 
 ^ See BisseJl v. Briggs, 9 Mass. 462 ; Buttrick v. Allen, 8 Id. 273 ; Winchester 
 V. Evans, Cooke 420 ; Kelly v. Hooper's Ex'rs., 3 Yerg. 395. G.
 
 348 JUDICIAL DOCUMENTS. 
 
 dency to unsettle foundations," the court fully admitted the general 
 doctrine, that the judgment of a competent tribunal could not be 
 overhauled in an original suit; and although the judgment, which 
 "was there insisted upon as final, Avas one by the commissioners in 
 a court of conscience, it was never contended that it was not equally 
 conclusive with the judgment of a court of record. So in Moody v. 
 Thurston,^ under an Act for stating the debts of the army, the com- 
 missioners had power to call the officers and agents before them, and 
 in case they found money due from one to the other, to give a cer- 
 tificate upon which an action might be brought, as upon a stated 
 account ; in an action for money so due, the plaintiff produced his 
 certificate ; the defendant tendered his accounts, offering to show 
 that no money was due; and he complained that the commissioners 
 had refused to hear him, and made their certificate upon the first sum- 
 mons, Avithout giving him time to produce his accounts : but the 
 Chief Justice, upon the trial, and the whole court afterwards, were 
 of opinion that the certificate was conclusive. So, the allowance of 
 a debt by the Commissioners of Bankrupts is conclusive evidence.^ 
 It is true that in the case of Henshaw v. Pleasance,^ it was doubted 
 
 indorser of a small bill of exchange, and recovered against him, in breach of an 
 agreement in writing between them (which the commissioners of the court re- 
 fused to notice), that Moses should not be liable nor prejudiced by reason of his 
 indorsement. Moses paid the money, and brought an action in the King's 
 Bench to recover it back, as money had and received to his use, and did re- 
 cover it. The principal question was, whether money thus paid according to 
 the sentence of the court could be recovered in opposition to that sentence, as 
 money had and received to the plaintiff's use ; and whether he ought not to 
 have declared for breach of the special agreement. It was held that the plain- 
 tiff was entitled to recover, for that the commissioners had properly refused to 
 take notice of the agreement in bar of the suit; and, therefore, that the per- 
 mitting the plaintiff to recover money so paid, was no impeachment of their 
 decision; and as it was money which, under all the circumstances, was justly 
 due to the plaintiff, it might be recovered in that form of action. This decision 
 has created great dissatisfaction, and the objections to it were stated with great 
 force and perspicuity by Lord C. J. Eyre, in giving his opinion in Phillips v. 
 Hunter^ 2 II. B. 402, who observed, that it was beyond liis comprehension how 
 the same judgment could create a duty for the recoveror, upon which he might 
 have debt, and a duty against him upon which money had and received would 
 lie : see 2 Smith's L. C. 238. 
 
 " See the observations of Eyre, C. J., in Phillijjs v. Hunter, 2 H. Bla. 402; 
 see also Jirown v. McKiimalli/, 1 Esp. C. 279; Marriott v. Hampton j 7 T. R. 
 20'J; C, Smith's L. C. 237; 2 Pothier, by Evans, 350; ])e Medina v. Grove, 10 Q. 
 B. ('J<J E. C. L. It.) 152. 
 
 "^ Str. 4SI. <> Brown v. Bullcn, 1 Doug. 407. 
 
 '2 W. i;i. 1174.
 
 FOREIGN JUDGMENTS, WHEN CONCLUSIVE. 348 
 
 "whether a condemnation by commissioners of excise was conclusive 
 evidence in justification of the officer who seized the goods, because 
 it was not a judgment of a court of record. But *in the case rtoAqi 
 of lloherts V. Fortune,^ it was held by Lee, C. J., that such 
 an adjudication, although not of record, was final. So, the judgments 
 of the Ecclesiastical Courts'* and Admiralty Courts,' although not of 
 record, are frequently conclusive.'' So, the decision of a private arbi- 
 trator, to whom the parties have referred themselves, is binding 
 upon the subject-matter.' These are instances in which the adjudi- 
 cation, though not of record, is final. A matter is not less res adju- 
 dicata because it is not of record, that is, because it is not preserved 
 and authenticated in a particular manner ; and when it has been es- 
 tablished as a legal judgment by a court of competent jurisdiction, it 
 seems to be equally entitled to consideration.™ The principle on 
 
 « 1 Hargr. Law Tracts 446. " Da Costa v. Villa Real, Str. 961. 
 
 ' Post Admiralty Decisions. 
 
 ^ In the case of Gahan v. Maingay, cited 2 Evans's Pothier, p. 353, the Lord 
 Chancellor (of Ireland) observed that the Ecclesiastical and Admiralty Courts 
 are not courts of record, and that, sitting in a court of law, he was not at liberty 
 to enter into the examination of the justice or injustice of any judgment of a 
 court of competent jurisdiction, unless it came before him by a writ of error. 
 
 ' Doe V. Eosser, 3 East 11 ; Barrett v. Wilson, 1 C, M. & R. 586 ; Johnson v. 
 Durant, 2 B. & Ad. (22 E. C. L. R.) 930 ; Jupp v. Grayson, 1 C, M. & R. 523. 
 
 ^ Stockdale v. Eansard, 9 Ad. & E. (36 E. C. L. R.) 62, et seq. It will be seen 
 that decisions by justices of the peace by virtue of a summary jurisdiction are 
 conclusive on an action brought, and that the propriety of such decisions cannot 
 be questioned. See Vol. II., tit. Justices. In the case of Guinness v. Carroll, 
 1 B. & Ad. (20 E. C. L. R.) 459, an action having been brought upon an Irish 
 judgment, the attempt was made to unravel the former proceedings, but the 
 case was decided on a collateral ground. It is observable, however, that on the 
 case of Buchanan v. Rucker, 9 East 192, being cited as an authority to warrant 
 such inquiry, Lord Tenterden observed, that in that case the proceedings showed 
 that judgment had been given bj'^ default upon summonses not personally 
 served, where it did not appear that the defendant ever had been summoned. 
 The cases o^ Arnott v. Reclfern, 3 Bing. (11 E. C. L. R.) 353, and of Dottglas v. 
 Forrest, 4 Bing. (13 E. C. L. R.) 686, were also cited on the same side. But in 
 the former, Best, C. -J., in giving judgment, observed that it was not necessary 
 to consider whether the judgment (of a Scottish court) could be impeached 
 here ; and in the latter, the question was, not whether the former judgment 
 could be examined into with a view to the merits, but only whether the process 
 of the Scotch court, in which the judgment had been pronounced, was sufficient 
 to make the judgment binding on the defendant. In the case of Barnes v. 
 WincJder, 2 C. & P. (12 E. C. L. R.) 345, the plaintiflF having sued for his debt 
 in the county court, and the plaint having been dismissed on the merits, it was 
 held that he might still sue in a superior court for the same demand ; that the 
 former proceedings would not be conclusive against him, but were for the con-
 
 350 JUDICIAL DOCUMENTS. 
 
 porn-i *wbich the conclusive quality of judgments, decrees or sen- 
 tences depends, applies just as much to forei<j;n judgments 
 attempted to be enforced here, as to any other. Judgments of in- 
 ferior courts in this country, do not differ in that respect from re- 
 corded judgments ; and if the mere circumstance of their being 
 foreign made any difference, the objection would equally apply to all 
 foreign judgments, and consequently the sentences of foreign courts 
 of Admiralty would not be, as they are, conclusive here. The prin- 
 ciple upon which a judgment is admissible at all is, that the point 
 has already been decided in a suit between parties or their privies, 
 by some competent authority, which renders future litigation useless 
 and vexatious. If this principle extends to foreign as Avell as domes- 
 tic judgments, as it plainly does, why is it to be less operative in the 
 former than in the latter case ? If it does not embrace foreign 
 judgments, how can they be evidence at all? By admitting that 
 such judgments are evidence at all, the application of the principle 
 is conceded. Why, then, is its operation to be limited, as if the for- 
 eign tribunal had heard nothing more than ex parte statement and 
 proof? Lord C. J. Eyre lays stress on the circumstance, that the 
 judgment is voluntarily submitted by the party who claims the benefit 
 of it, to the jurisdiction of the court ; but so it is in every case where 
 a party claims the benefit of such a judgment ; for no one is 
 compelled to avail himself of a judgment ; and it can make no 
 p^or-j-i difference whether he attempts *to enforce it as plaintiff, or 
 as matter of defence ; for it could scarcely be contended 
 that a judgment was merely primd facie evidence for a plaintiff who 
 endeavored to recover the debt, but that it was conclusive in his 
 favor Avhen he used it by way of set-off. In the case of Galhraith v. 
 Neville, Lord Kenyon expressed strong doubts as to the doctrine ad- 
 vanced in Walker v. Witter ; and it appears that ultimately" the 
 court refused a new trial, being of opinion that the judgment was at 
 all events ^:>rm^ facie evidence of debt, without entering into the 
 question how far it Avas impeachable. In Houlditch v. 3Iarqids of 
 Donegal^" where the creditors of a person resident in Ireland, filed a 
 bill in the English Court of Chancery, and obtained a decree for an 
 account, &c., and afterwards (the property of the debtor lying chiefly 
 
 sidcratioii of the jury, as somcthinj^ ini<fht have occurred in the county court 
 which was not hrou^ht Ijofore the jury in the second action. But see the case 
 of Huxham v. Smilh, 2 Camp. 1*J, infra, 359. 
 
 " 5 East 475, n. 
 
 ° 2 CI. & Tin. 470.
 
 FOREIGN JUDGMENTS, WHEN CONCLUSIVE. 351 
 
 in Ireland) filed a bill in the Court of Chancery there, praying to 
 have the full benefit of the proceedings in the English suit, the Court 
 of Chancery in Ireland having dismissed such bill as for want of 
 jurisdiction : it was held, upon an appeal to the House of Lords, that 
 the judgment of the Court of Chancery in Ireland was erroneous, 
 that the proceedings in the English Court of Chancery were in 
 the nature of a foreign judgment, and were to be treated as such in 
 Ireland, namely, as primd facie evidence of right in the party who 
 had obtained the judgment, and therefore to be enforced by the 
 court there. It will be observed that in this case the question was, 
 not whether the judgment in the English Court was conclusive, or 
 only 'primd facie evidence, but whether the Irish Court had any 
 jurisdiction in the matter at all. Hence it can hardly be considered 
 as an authority, that foreign judgments are merely primd facie 
 evidence, and not conclusive as to the matters decided by them. 
 
 Upon an action of covenant,P for not indemnifying *the r*qr9-i 
 plaintiff against partnership debts due from a dissolved firm, 
 in which the plaintiff and defendant were partners, the plaintiff 
 proved a decree in the Court of Grenada against himself and the 
 defendant, for a partnership debt, on which a sequestration issued 
 against the plaintifl"s property, by which he was compelled to pay 
 the debt. Upon the trial the defendant offered to prove that the 
 account had been incorrectly taken ; but Lord Ellenborough rejected 
 the evidence, on the ground that the foreign court, being a court of 
 competent jurisdiction, must betaken to have decided rightly ; and 
 the Court of King's Bench afterwards refused a rule 7iisi for a new 
 trial. The case of Burrows v. Jemino'^ is direct to show that foreign 
 judgments are conclusive. In that case the acceptor of a bill resid- 
 ing at Leghorn, having been discharged of his acceptance, according 
 to the laws there, by the failure of the drawer, instituted a suit there, 
 and had his acceptance vacated by a decree of the court ; and being 
 afterwards sued in England upon the same bill, he applied to the 
 Court of Chancery for an injunction, which was granted on the broad 
 
 P Tarleton v. Tarldon, 4 M. & S. 20. See Malony v. Gibbons, 2 Cam. 502. 
 
 'i Str. 733. In the case of Pltimnier v. Woodburne, 4 B. & C. (10 E. C. L. R.) 
 625, it was held that a plea alleging a judgment in a colonial court for the same 
 cause of action, Avas a bad plea, for not showing that such a judgment would 
 have been conclusive in the colony : but it seems to have been assumed that the 
 judgment, if shown to be conclusive in the colony, would also be conclusive 
 here.
 
 352 JUDICIAL DOCUMENTS. 
 
 ground that the sentence of a court of competent jurisdiction is 
 conclusive.^ 
 
 r*3531 ^^ *^® ™°^^ recent case of Martin v. Nieholls,^ a bill *for 
 a discovery and commission to examine witnesses in Antigua, 
 
 "■ 3 Sim. 458. This decision has been confirmed in the House of Lords in 
 
 ^ Before the ratification of the confederation of the United States all the courts 
 of the several provinces, colonies or States vrere at common law deemed to be 
 foreio;n to each other ; and jud laments rendered by any one of them were con- 
 sidered by the others as foreign judgments. Per Parsons, C. J., 9 Mass. 464, 
 465. By that ratification the several States agreed that full faith and credit 
 should be given, in each of the States, to the records, acts and judicial proceed- 
 ings of the courts and magistrates of every other State. Afterwards a similar 
 provision was made in the Constitution of the United States. It seems to have 
 been the intention of the government of the United States to place judgment re- 
 covered in any of the State courts, on better ground than judgments rendered 
 in any other country. On any other supposition, the first section of the fourth 
 article of the Constitution would seem to be utterly illusory and useless : 7 
 Cranch 485 ; Peters C. C. 78 ; 9 Mass. 466 ; Hardin 413. It must therefore have 
 been the understanding of the framers of the confederation and of the Constitu- 
 tion, that when a party to a foreign judgment sought to enforce it by action in 
 the American courts (for in such case only are the merits of a foreign judg- 
 ment ever re-examined, 3 Johns. 169, per Kent, C. J.), it was not conclusive 
 evidence ; and that the defendant might impeach it. And since the organiza- 
 tion of the federal government under the Constitution these courts seem 
 uniformly to have had the same understanding of the law. No case has been 
 found in which this point has been directly adjudicated ; but it is asserted or 
 assumed in the cases above referred to, and in the following among many 
 others, viz. : Buttrich et ux. v. Allen, 8 Mass. 274 ; Taijlor v. Briden, 8 Johns. 
 173 ; Hitchcock et al. v. Aicken, 1 Caines 460 ; King v. Van Gilder, 1 Chip. 59 ; 
 Curtis V. Gibbs, 1 Penna. 400 ; Winchester v. Evans, Cooke 429. 
 
 The construction of the above-mentioned clause in the Constitution of the 
 United States, in connection with the statute of 1790, has heretofore been contra- 
 dictory in the diS'erent States; but whenever a judgment of one State court, 
 •when sued in that of another, has been held to be only prima facie evidence, it 
 has been on the ground that such judgment is to be regarded as foreign. It 
 may therefore probably be afiirmed with safety, that in the United States, a 
 foreign judgment in contradistinction to a judgment of a sister State is not re- 
 garded as conclusive, but that the defendant is entitled to the same defence as 
 in the original cause. 
 
 Since the decision in Mills v. Duryee, 7 Cranch 481, and Hampton v. McCon- 
 nel, 3 Wheat. 234, it must be considered as settled definitely, that a judgment 
 of one State has the same validity and eff"ect in another as in the State where it 
 was rendered ; and that in an action to enforce it, no ])loa is allowable, which, 
 in a similar action, would be rejected in the latter State. Whether fraud, 
 want of jurisdiction, &c., may be pleaded to such judgment, is still an open 
 question in the Supreme Court of the United States: 3 Wheat. 23 note; 15 
 Johns. 144. But it has been decided affirmatively in numerous cases in the 
 State courts : Mitchell v. Osgood, 4 Grccnl. 124 ; sec next note. M.
 
 FOREIGN JUDGMENTS, WHEN CONCLUSIVE. 353 
 
 in aid of the plaintiff's defence to an action brought on a foreign 
 judgment in this country, was held demurrable, on the broad prin- 
 ciple that the grounds of a foreign judgment cannot be reconsidered 
 in the courts of this country/ In Henderson v. Henderson,^ which 
 was an action on a decree of the Supreme Court of Newfoundland, 
 pleas alleging that the plaintiff there sued as widoAV of //. in right 
 of H., Avithout showing any right of representation to him ; and 
 also a set-off from H. or his estate due to defendant, were held bad, 
 on the ground that these matters would have constituted a defence 
 in the colonial court, and whatever constituted such defence ought 
 there to have been relied on : that in Smith v. NicoUs no opinion 
 was intimated that the question decided by the colonial court was 
 open to examination in an action on its judgment here ; circum- 
 stances might indeed exist which would render it inequitable to 
 claim the sum decreed, but the remedy for that was by application 
 to the Court of Chancery. And so, in The Bank of Australasia v. 
 I^ias" which was an action on a judgment obtained in New South 
 AVales, the court held that whatever might have been pleaded to the 
 original action could not be pleaded here. That how far it would 
 be permitted to a defendant to impeach the competency or integrity 
 
 of a ^foreign court, from which there was no appeal, it was ^ 
 
 . . 11' r*3541 
 
 unnecessary to inquire, for here there was an appeal, and ^ J 
 
 Ricardo v. Garcias, 12 CI. & F. 368, where to a bill in Chancery, seeking an 
 account respecting a loan transaction, a plea that the plaintiff impleaded some 
 of the defendants before the French tribunals, which gave judgment for them, 
 and that the matters so adjudicated upon were the same as those put in issue 
 by the bill, was held upon demurrer to be a good answer; and Lord Campbell 
 said, '"I was clearly of opinion that a foreign judgment might be pleaded as res 
 judicata^ because the foreign tribunal has clearly jurisdiction over the matter, 
 and both parties having been regularly brought before the foreign tribunal, 
 and that tribunal having adjudged between them, I think that such a judgment 
 would be a bar to a subsequent suit in this country for the same cause." 
 
 ^ In Smith V. Nicolls, 5 Bing. N. C (35 E. C. L. R.) 220, Martin v. Nicolls 
 having been cited, among other authorities, in argument, Tindal, C. J., ob- 
 served : " Greut doubts formerly existed, and some degree of doubt still exists, 
 whether a judgment so recovered is conclusive between the parties, or whether 
 the matter may be opened and agitated in this country." In that case the 
 court held that the original cause of action (trover) was not merged by the 
 judgment of the Court of Sierra Leone ; and see the observations in Houlditch 
 V. Marquis of Donigal, 2 CI. & F. 470. 
 
 ' 6 Q. B. (51 E. C. L. R.) 288. And see Ferguson v. Mahon, 11 Ad. & E. (39 
 E. C. L. R.) 179. 
 
 " 20 L. J., Q. B. 284.
 
 351 JUDICIAL DOCUMENTS. 
 
 that "was the proper mode of setting aside an erroneous judgment, 
 and not by re-trying the cause and submitting the same questions to 
 a jury. 
 
 Hence it would seem that the decisions of foreign courts, which 
 being apparently regular, and pronounced on matters within the scope 
 of their jurisdiction, are conclusive abroad, are also conclusive in this 
 country ; and the court here will presume that the foreign court had 
 jurisdiction,"^ and that its proceedings were regular.'' In some in- 
 stances a foreign iudorment is sought to be taken advantage of as a 
 defence '/ if intended to be relied on as an estoppel, it must be pleaded 
 as such f for should it merely be given in evidence, it will not be con- 
 clusive, however cogent. 
 
 AVhere, however, a foreign judgment has proceeded upon some error 
 apparent on the face of the judgment, it is impeachable on that ground. 
 In the case of Novelli v. Mossi,^ the defendant, in answer to proof of 
 a debt due by him to the plaintiff, showed that he had indorsed two 
 bills to the plaintiff, of which the defendant himself was also the in- 
 dorsee ; that the acceptance on these bills had, on presentment for 
 payment, been cancelled by the banker's clerk, who immediately wrote 
 opposite to them, " cancelled by mistake;" that the plaintiff after- 
 wards took up the bills, and returned them regularly protested to the 
 defendant, who applied, without success, to the prior parties for pay- 
 ment ; that a suit having been instituted by him in a French court, 
 r*or'--i the court, and afterwards a court to *which the plaintiff had 
 appealed, adjudged that the defendant was discharged from 
 the bills, on the ground that the cancelling of the bills operated as a 
 suspension of the legal remedies against the acceptor, and was equiv- 
 alent to a delay granted to him by tlie holder, with whom the plaintiff 
 was indentificd. It was contended that this decree was conclusive, 
 but the court held, that as it appeared that the French courts had 
 mistaken the law of England as to the effect of the cancellation,'' the 
 defendant was still liable. The courts of England will not, however, 
 
 " Robertson v. Sirufh, 5 Q. B. (48 E. C. L. R.) 941. 
 
 * Coitmnv. Braidwood, 1 M. & G. (39 E. C. L. R.) 882; Henderson v. Hender- 
 son, vhi supra. 
 
 y liicardo v. Garcias, uhi supra. 
 
 '■ Uencral Steam Navigation Co. v. Guillou, 11 M. & W. 877. And sec also 2 
 Smith's L. C, notes to Duchess of' Kingston's case, 449. 
 
 » 2 B. & Ad. (22 E. C. L. II.) 757 ; see also the observations of Lord Ellen- 
 liorough in Jiuchanan v. liucJcer, 1 Camp. 63. 
 
 '' Ah to this point, sec also Rapcr v. Birbcck, 15 East 17 ; Wilkinson v. John- 
 son, 3 B. & C. (10 E. C. L. R.) 428.
 
 FOREIGN JUDGMENTS, WHETHER CONCLUSIVE. 355 
 
 for obvious reasons, set aside the judgment of a court of a foreign 
 country, for a mistake of the law of that country, unless the error be 
 very manifest." So if the foreign judgment be contrary to the law of 
 nations it may be impeached ;'' and if it be so defective that it is not 
 clear what point, or whether any, was decided, it cannot have any effect 
 as evidence.*^ 
 
 The proceedings upon which a foreign judgment has been obtained, 
 are also, to a certain extent, open to examination, for the purpose of 
 ascertaining whether the judgment has been fairly obtained, and pro- 
 nounced by proper authority, in a case within the jurisdiction of the 
 court. 
 
 Thus, the judgment is not binding if the court be constituted by 
 persons interested in the matter in dispute.^ So, where the plaintiiF 
 declared in assumpsit on a foreign judgment in the island. of Tobago,^ 
 and upon the trial a copy of the proceedings and judgment was pro- 
 duced, from which it appeared that the defendant had been 
 summoned *by nailing up a copy of the declaration at the '- -' 
 
 court-house door, upon which judgment was afterwards given by de- 
 fault, and no evidence was given that the defendant had ever been 
 present in the colony, or subject to the jurisdiction of the colonial 
 court. Lord Ellenborough nonsuited the plaintiff, and a rule of nisi 
 for a new trial was afterwards refused."" So in the case of Cavan v. 
 Stewart,' Lord Ellenborough held that a party here was not bound by 
 a colonial judgment, unless it appeared that he had been summoned, 
 or it was proved that he had been once resident upon the island ; and 
 that it was not sufficient that he Avas described as an absentee on the 
 
 "Becquet v. McCarti/h, 2 B. & Ad. (22 E. C. L. R.) 957 ; Alivon v. Funiival, 
 1 C, M. & R. 293. Or unless it be clear that the grounds do not warrant the 
 decision : Calvert v. Bovill, 7 T. R. 523 ; Pollard v. Bell, 8 T. R. 434. 
 
 <• Baring v. Clagett, 3 B. & P. 201 ; Wo{f v. Oxliolm, 6 M. & S. 92. 
 
 « Obicini v. Bligh, 8 Bing. (21 E. C. L. R.) 335. 
 
 ^ Price V. Dewhurst, 8 Sim. 279. 
 
 ^ Buchanan v. Rucker, 9 East 192. And see Lord Tenterden's observation on 
 this case in Gainness v. Carroll, 1 B. & Ad. (20 E. C. L. R.) 461. 
 
 '' It appeared that, by a law of the colony, if a defendant be absent from the 
 island, and have no attorney, manager, or overseer there, such mode of sum- 
 moning should be deemed good service. But the court held, 1st, That the law 
 applied to those only who had once been present upon the island ; and 2dly, 
 That if its terms could be construed to extend to those who had never been 
 present, the law could not be operative upon them. And see Douglas v. For- 
 rest, 4 Bing. (13 E. C. L. R.) 686; Frankland v. McGusly, 1 Knapp. Pr. C. C. 
 274; Obicini v. Bligh, 8 Bing. (21 E. C. L. R.) 335. 
 
 * 1 Stark. C. (2 E. C. L. R.) 525.
 
 356 JUDICIAL DOCUMENTS. 
 
 face of the proceedings. And in the case of Ferguson v. MeJion,^ 
 which was an action of debt upon a judgment of the Court of Com- 
 mon Pleas in Irehmd, obtained, as it appeared from the defendant's 
 plea, behind the back of the defendant. Lord Denman, C. J., in de- 
 livering the judgment of the court, observed, " It Avas argued, that 
 if the judgment was in fact open to the objection urged upon the 
 plea, it was irregular only, and might have been set aside upon ap- 
 plication to the court in which it was recovered ; and that we were 
 bound to respect it as a valid judgment, so long as it stood unreversed. 
 This argument puts an Irish judgment, in this respect, on the same 
 footing precisely as a judgment recovered in one of the superior 
 courts of this country ; but, although a record for certain purposes, 
 the inquiry is still open, not indeed into the merits of the action, or 
 r-^q-r-r-i the fvo'priety of the decision, *but whether the judgment 
 passed under such circumstances as to show that the court 
 had properly jurisdiction over the party ; and when it appears, as 
 here, that the defendant has never had notice of the proceeding, or 
 been before the court, it is impossible for us to allow the judgment 
 to be made the foundation of an action in this country. "' 
 
 ■^ 11 Ad. & E. (39 E. C. L. R.) 179. 
 
 ^ In the case of Bissell v. Briggs, 9 Mass. 462, Parsons, C. J., says, if a foreign 
 judgment be produced by a party, to obtain the execution of it here, the juris- 
 diction of the court renderinif it is still open to inquiry. And if a defect of 
 jurisdiction should appear, the party producing the judgment must fail, without 
 any inquiry into its merits. Neither the Federal Constitution nor the Act of 
 Congress (1790) had any intention of enlarging, restraining, or in any manner 
 operating upon the jurisdiction of the legislatures or of tlie courts, of any of 
 the United States. The jurisdiction remains as it was before; and the public 
 Acts, records and judicial proceedings contemplated, and to which full fixith 
 and credit are to be given, are such as were within the jurisdiction of the State 
 whence they shall be taken. Whenever, therefore, a record of a judgment of 
 any court of any State is produced as conclusive evidence, the jurisdiction of 
 the court rendering it is open to inquiry ; and if it should appear that the 
 court had no jurisdiction of the cause, no faith or credit whatever will be given 
 to the judgment. And upon the same principle, if a court of any State should 
 render judgment against a man not within the State, nor amenable to the juris- 
 diction of its courts, if that judgment should be produced in any other State 
 against the defendant, the jurisdiction of the court might be inquired into; 
 and if a want of juris<liction appeared, no credit would be given to the judg- 
 ment. 
 
 In order to entitle tin; judgment rendered in any court of the United States to 
 the full faith and credit mentioned in the Federal Constitution, the court must 
 lia\i' li;i<l jurisilietioii, not only of the cause, but of the jiarties. A debtor living 
 in one SluLe may have goods, effects or credits in another, where the creditor
 
 FOREIGN JUDGMENTS, HOW FAR EXAMINABLE. 357 
 
 Irregularity will not, however, be presumed, and the party seeking 
 to obviate the effect of a foreign judgment must clearly show it to be 
 
 resides ; and such creditor may there attach those goods, &c., pursuant to the 
 laws of that State in the hands of the bailiff, factor, trustee or garnishee of 
 his debtor, and on judgment, those goods, &c., may lawfully be applied to 
 satisfy the judgment. If however those goods, &c., are insufficient to satisfy 
 the judgment, and the creditor should sue an action on that judgment in the 
 State where the debtor resides, he must fail ; because the defendant was not 
 personally amenable to the jurisdiction of the court rendering the judgment. 
 And if the defendant, after the service of the process of foreign attachment, 
 should either in person have gone into the State or constitute an attorney, so as 
 to protect his goods, &c., from the effect of the attachment, he would not thereby 
 have given the court jurisdiction of his person; since the jurisdiction must 
 result from the service of the foreign attachment. Under the articles of con- 
 federation it was decided in Pennsylvania that a judgment obtained by default 
 in a court of another State, without actual notice, and upon a mere nominal 
 attachment of the defendant's property, was not conclusive evidence in a suit 
 on such judgment: Phelps v. Halker^ 1 Dall. 261. And in Connecticut, in an 
 action of debt on a judgment similarly obtained, the court, on demurrer, decided 
 for the defendant, on the ground that the court which rendered the judgment 
 had no jurisdiction : Kibhe v. Kibbe, Kirby 119. And since the adoption of the 
 constitution it has repeatedly been decided in New York that an action cannot 
 be sustained on a judgment recovered in another State, in a suit commenced by 
 an attachment of goods without any personal summons or actual notice to the 
 defendant, such judgment not being even prima Jacie evidence, but wholly 
 void : Kilburn v. Woodworth, 5 Johns. 37 ; Robinson v. Ward^s Exrs., 8 Johns. 
 86 ; Fenton v. Garlick, 8 Johns. 194 -, Pawling et ux. v. Wilson et al., 13 Johns. 
 192; see also Borden v. Fitch, 15 Johns. 121, where this subject is very fully 
 discussed. The same doctrine is held in New Hampshire : Therber v. Black- 
 burne, 1 N. H. 242. (And Connecticut: Aldrich v. Kinney, 4 Conn. 380. — I.) 
 A judgment thus obtained in another State is held in Pennsylvania, Kentucky 
 and Vermont to be prima facie evidence but subject to inquiry and impeach- 
 ment: Betts V. Death, Addis. 265; Rogers v. Coleman et tix., Hardin 413; see 
 also Price v. Higgins, 1 Litt. 274 ; King v. Van Gilder, 1 Chip. 59. In Ten- 
 nessee, it is held that the decree of a court of equity of another State may be 
 examined and relief afforded, if it appears that the defendant had not proper 
 notice : Glasgow v. Lawther, Cooke 464 ; see also Winchester v. Jackson, 1 Hayw, 
 316. In an action in Connecticut on a judgment recovered in Massachusetts, 
 where the defendant pleaded that at the time the former suit was commenced, 
 he was not an inhabitant of Massachusetts, nor resident, nor had property there, 
 the plea was held bad because it did not deny notice : Smith v. Rhoads, 1 Day 
 108. It follows perhaps from the construction given by the Supreme Court of 
 the United States to the constitution and to the statute of 1790, that a judgment 
 upon an attachment merely, without actual notice to the defendant, must have 
 the same effect when put in suit in another State, as it has in the State where 
 it is rendered. If in such case, therefore, a judgment thus rendered is, in any 
 State, conclusive only as to the property attached, it can have no greater effect 
 when sued in another State. Whereas, if in any State, such judgment is con-
 
 357 JUDICIAL DOCUMENTS. 
 
 contrary to natural justice or defective in itself. Thus in Henderson 
 V. Henderson,^ Lord Denman, C. J., in delivering the judgment of 
 the Court of Queen's Bench, observed, " Several pleas were pleaded 
 to show that the defendant had not had justice done him in the Court 
 of Chancery in Newfoundland. This is never to be presumed; but 
 the contrary principle holds, unless we see in the clearest light that 
 the foreign law, or at least some part of the proceedings of the 
 foreign court, are repugnant to natural justice; and this has been 
 often made the subject of inquiry in our courts. But it steers clear 
 of an inquiry into the merits of the case, upon the facts found; for 
 whatever constituted a defence in that court ought to have been 
 pleaded there." And where a party, once resident in a colony, 
 absented himself from it without leaving any attorney, but it was 
 the duty of the procurator fiscal to take care of the interest of an ab- 
 
 1 6 Q. B. (51 E. C. L. R.) 298. 
 
 elusive as to the matter decided, and will operate against the person and estate 
 of the defendant generally : or is so far inconclusive, that it may, within a 
 limited term, be opened and examined, upon the performance of certain condi- 
 tions ; the same effect is to be given to it in the courts of other States. And this 
 is the view taken of the subject by Washington, J., in the case of Green v. Sar- 
 miento, Peters C. C. 74. If the law of any State, says the same learned judge, 
 does not prohibit such an outrage upon the immutable dictates of justice, as the 
 exemption of any judgment from re-examination, which may have been ex parte, 
 the defendant having had no opportunity to make his defence, then the court 
 which inadvertently gave the judgment or a superior court would provide the 
 redress: And if the law or the courts should leave the injured party without a 
 remedy, and the courts of another State would be bound to consider such judg- 
 ment as conclusive (on which question it was not necessary to give an opinion) 
 then the Act of 1790 was not passed with sufficient consideration, and it may 
 and ought to be so amended as to give a conclusive effect to judgments only in 
 cases when the trial was perfectly fair, and when both parties were or might 
 have been heard. Ibid. As nothing can be assigned for error and no averment 
 can be admitted, which contradicts a record, a party to a judgment obtained in 
 another State, in the record of which it is stated that he appeared and pleaded 
 by attorney, cannot successfully plead to an action on that judgment, in another 
 State, that he had no notice of the original suit, and never authorized any 
 person to consent to any proceedings therein. His remedy, if he had no notice 
 is the same (and no other) that would be open to him, if the second suit had 
 been brought in the State where the judgment was rendered: Field v. Gibbs, 
 Peters C. C. 155. So if the original judgment had been entered by default for 
 non-appearance, upon a false return of the officer. Ibid. M. 
 
 liut in Aldrich v. Kinneij, 4 Conn. 3<S0, it was decided that in an action on a 
 
 judgment rendered in another State, evidence on the part of the defendant, that 
 
 ■ he had no legal notice of the suit and did not appear, was held admissible, 
 
 although the record of such judgment stated that the defendant api)eared by his 
 
 ullo.noy. *•
 
 FOREIGN JUDGMENTS, HOW FAR EXAMINABLE. 858 
 
 sentee, the judgment was lield to be binding." *So Avhere in r^orc-i 
 an action here on a French judgment, in answer to a plea that 
 the defendant had no notice of the proceedings abroad, and that he 
 was not in France at the time of the accruing of the cause of action, 
 or since, a replication that the claim arose against him as a share- 
 holder in a French company, and being resident in England, he was 
 bound as a shareholder to elect some place as a domicile where to be 
 served with process and notices as a shareholder, and that having 
 elected such a place, notices of the proceedings were there served, was 
 held to afford a good answer." 
 
 Credit also will be given to facts specifically alleged on the judg- 
 ment : where the judgment (by default) stated that the defendant 
 appeared by attorney, it is to be presumed that he had authority to 
 appear for the defendant." ^ 
 
 " Becquet v. McCarthy, 2 B. & Ad. (22 E. C. L. R.) 958. So an action lies 
 on a Scottish judgment of horning against a Scotchman born : Dovglas v. Forrest, 
 4 Bing. (13 E. C. L. 11.) 686. And where the plaintiff declared upon a decree 
 of the Court of Sessions in Scotland, and the defendant pleaded that he was not 
 at the commencement of the suit, or at any time during the proceedings therein, 
 in Scotland, or within the jurisdiction of the court, nor at any time before pro- 
 nouncing the decree, according to the course and practice of the court notified, 
 nor did he then know of the proceedings so that he could or might by himself, 
 his proctor, attorney, or agent, appear or plead, or in any way defend himself 
 in the action, nor did he appear to any of the proceedings ; but did not allege 
 that he was not born or domiciled in Scotland, or that he was not subject to its 
 laws, or that he had no property there; the plea was held insufficient: Cowan 
 and others v. Braidicood, 1 M. & G. (39 E. C. L. R.) 882. And see Eussell v. 
 Smyth, 9 M. & W. 810 ; Reijnolds v. Fenton, 3 C. & B. (54 E. C. L. R.) 187. 
 
 ° Vallee v. Dumergue, 4 Ex. 290. And see Banl: of Australasia v. Nias, 20 
 L. J., Q. B. 284. 
 
 ° Molony v. Gibbons, 2 Camp. 502. 
 
 ' In an action upon a record of a foreign judgment, showing that there was 
 no service of process, but that the appearance of defendant was entered by an 
 attorney, it is competent to show that the attorney who entered the appearance 
 did so without authority ; Thompson v. Emmert, 15 111. 415, Unless the record 
 of a judgment shows on its face, that the court had jurisdiction of the person, 
 the judgment is a nullity : Steen v. Sfeen, 25 Miss. 513 ; Farmers^ Co. v. McKin- 
 ney, 6 McLean 1. No person is a p.arty to a suit or bound by a judgment 
 therein, without a judicial notice of some sort: Shaefer v. Gates, 2 B. Monr. 
 453 ; Englehead v. Sutton, 7 How. (Miss.) 99 ; Clark v. Grayson, 2 Pike 149. No 
 State can bind personally, by its judgment, a defendant who is not within its 
 jurisdiction, and on whom notice has not been served : Lincoln v. Tower, 2 
 McLean 473. Where a judgment is brought collaterally before the court as 
 evidence, it may be shown to be void for want of notice to the person against 
 whom it was rendered or for fraud : Webster v. Reid, 11 How. (S. C.) 437. An
 
 358 JUDICIAL DOCUMENTS. 
 
 To make a foreign judgment operate as a bar to the plaintiff's 
 claim, it must appear that it was a final and conclusive judgment. '' 
 
 It seems to be a general rule with respect to foreign judgments, 
 which are not unfrequentlj inaccurately expressed, to regard their 
 substance, and not their form, and this is according to the rule 
 adopted by the Privy Council.'' 
 
 The rule (as to examining previous proceedings) appears to be the 
 
 same with respect to the judgments of inferior courts in this country. 
 
 In Fisher v. Lane^ the plaintiff, *an administrator, brought 
 
 L '^'^ -I assum'psit for goods sold and delivered by the intestate; the 
 
 P Bonn V. Lippmann, 5 CI. & F. 21 ; Callander v. Dittrich, 4 M. & G. (43 E. 
 C. L. R.) 68 ; and see ante, p. 352, n. (r). 
 
 1 Per Lord Tenterden in Henley v. Soper, 8 B. & C. (15 E. C. L. R.) 20. 
 
 r ?> Wils. 297. So Tamm v. Williams, 2 Ch. R. 438 ; Bruce v. Wait, 1 M. & 
 G. (39 E. C. L. R.) 1. In Herbert v. Cooke, Willes 36, note (a), it was held 
 that in an action of debt, on a judgment of an inferior court, not of record, the 
 defendant might plead that the cause of action arose beyond the jurisdiction of 
 the court: Briscoe v. Stephens, 2 Ring. (9 E. C. L. R.) 213 ; Stanton\. Styles, 1 
 
 absent defendant is not bound by a judgment in a proceeding against his 
 property beyond the property in question: Bosivell v. Otis, 9 How. (S. C.) 336. 
 Where the record omits to state that the court had jurisdiction of the person of 
 the defendant, such jurisdiction cannot be inferred from the judgment. And 
 even when the record does state that the defendant did appear, it seems, that it 
 is competent for him to controvert the fact and to show that he did not appear 
 and was not in a situation to receive notice : Bradshaw v. Heath, 13 Wend. 407. 
 A judgment of a state court, the record of which shows that a defendant had 
 no personal notice and did not appear and submit to the jurisdiction of the 
 court, is not entitled under the constitution and laws of the United States, to 
 full faith and credit in every court within the United States : D^Arcy v. 
 Kefchum, 11 IIow. (S. C.) 165; Rathhone v. Terry, 1 R. I. 73; Thompson v. 
 IJnimert, 4 McLean 96 ; Downer v. Shaiv, 2 Fost. 277. In a suit against a part- 
 nership, if one partner is not within the jurisdiction of the court and is not 
 served with process, and does not voluntarily appear and answer to the suit by 
 himself or his attorney, the judgment against the partnership, cannot be en- 
 forced against him out of the local jurisdiction ; even though, by the lex loci, a 
 service on the partner resident within the jurisdiction, is suiEcient to authorize 
 a judgment against all the partners: Phelps v. Breicer, 9 Cush. 390. When a 
 corporation confines its business within the State which chartered it, service of 
 process upon one of its officers accidentally within another State, made under a 
 hiw of that State sanctioning such service, does not properly give jurisdiction : 
 Moulin v. Trenton Ins. Co., 4 Zabr. 222. Facts on the record necessary to give 
 jurisdiction cannot be controverted : JAncoln v. Tower, 2 McLean 473 ; Wester- 
 velt v. Lewis, Ibid. 511. Matters determined by the record cannot be contro- 
 verted by plea. But matters extrinsic may be sliown, as by pleading fraud, 
 satifaction or want of jurisdiction in the court rendering the judgment: Cratv- 
 ''ord v. Simonton, 7 Port. 110.
 
 JUDGMENTS OF INFERIOR COURTS. 359 
 
 defendant gave in evidence the payment of a sum of money in con- 
 sequence of a judgment upon a foreign attachment in London. 
 From the minutes of the judgment, it appeared that Henry Janson 
 had by this process attached the sum of X92 188. in the hands of the 
 defendant, for a debt due from the intestate, and for default of the 
 present phaintifF in not appearing, had had execution ; but it did not 
 appear from the proceedings that the plaintiff had received any 
 notice of the process, and the sergeant-at-macc stated that such was 
 the custom of the City Court. The Court of Common Pleas held 
 that the judgment was erroneous, since the plaintiff who had never 
 been summoned, had made no default. ° 
 
 A judgment and process of execution in a County Court, being 
 pleaded in bar of an action of trespass, it was held that the jury 
 were at liberty to consider the whole of the proceedings fraudulent 
 and collusive, no process having been served, or appearance entered, 
 although a motion to set aside the proceedings of the court below 
 had been made without effect.' 
 
 It is also to be observed, that error or insufficiency, manifest on 
 the face of the proceedings, before courts of inferior jurisdiction, 
 may usually be objected, even where the *conviction of ad- r*qf^A-i 
 judication is offered in justification of some act done under 
 its authority." And the decree of an incompetent court in the time 
 of Queen Elizabeth unknown to the law is inadmissible, unless the 
 parties by voluntary submission have given it the effect of an award. "^ 
 
 Secondly, where a judgment is offered to prove the same fact, but 
 for a different or collateral purpose, then if the judgment was by a 
 
 L. M. & P. 575. In Huxham v. Smith, 2 Camp. C. 19, Lord Ellenborough held 
 that the judgment against the defendant as garnishee in the Lord Mayor's 
 Court was prima facie evidence of a debt on a cause of action within the city of 
 London ; but he admitted evidence to prove the contrary. But he held that the 
 judgment was conclusive as to the debt. 
 
 ' See also Williams v. Lord Bagot, in error, 3 B. & C. (10 E. C. L.R.) 772, 
 where it was held that a custom in an inferior court to declare against a de- 
 fendant before an appearance entered by him, or by some person for him, was 
 bad in law ; and it seems also that a custom to issue a summons and attach- 
 ment at the same time, is also bad. 
 
 * Thom2)so7i v. Blackhurst, 1 Nev. & M. (28 E. C. L. R.) 266. 
 
 " As in the case of a summary conviction before a magistrate ; see the cases 
 and recent statute, Vol. II., tit. Justices. It would probably be diflPerent in the 
 case of a judgment in a court of record, which, though erroneous, is in force till 
 it is reversed. In Mann v. Owen, 9 B. & C. (17 E. C. L. R.) 595, the Court of 
 King's Bench investigated the jurisdiction of a court martial. 
 
 ^ Rogers v. Wood, 2 B. & Ad. (22 E. C. L. R.) 245.
 
 360 JUDICIAL DOCUMENTS. 
 
 court of exclusive jurisdiction, it is conclusive evidence upon the 
 question so incidentally arising.'' In an action upon a contract of 
 marriage, per verba de ficturo, the defendant gave in evidence a sen- 
 tence of the Spiritual Court in a cause of contract, where the judge 
 had pronounced against a suit for the solemnization in the face of 
 the church, and declared the defendant free from all contract, and 
 this was held to be conclusive evidence, although the proceedings 
 were diverso intuitu ; that in the Spiritual Court being for a specific 
 performance, and that in the action for damages.^ 
 
 In the next place, although the judgment or decree be not pro- 
 nounced by a court of exclusive jurisdiction upon the subject-matter, 
 yet, if the same point once determined between the same parties 
 again arise, although for a different purpose, the* judgment, it seems, 
 would be admissible but not conclusive evidence.'' 
 
 *An adiudication of a criminal nature has little operation 
 L ' -• as evidence, except to prove the mere fact of adjudication, 
 or to establish its own legal consequences. 
 
 The principles adverted to seem to exclude a verdict in a criminal 
 proceeding from being evidence in one of a civil nature. For, inde- 
 pendently of other objections in such cases, the parties are not the 
 same ; and, therefore, there is not such a mutuality as is essential 
 to an estoppel.* 
 
 In an action brought by a private person, the acquittal of the 
 defendant upon an indictment is not evidence, because the plaintiff 
 was no party to the criminal proceeding, and therefore his private 
 remedy ought not to be concluded by the result.'' In addition to 
 which it may be observed, that an acquittal, however well founded, 
 would seldom, if ever, show conclusively that the defendant had not 
 committed any injury for which he is responsible in damages ; for he 
 may be liable in damages without having acted criminally ; e co7i- 
 
 ^ According to the juJo;ment of De Gray, C. J., ante, p. 323. And see Da 
 Costa V. Villa Real, Str. 901 ; and Siockdale v. Hansard, 9 Ad. & E. (3G E. C. 
 L. R.) 62, where the cases are collected. 
 
 y Da Costa v. Villa Real, Str. 961. 
 
 * Lewis V. Clarges, Gilb. Law of Ev. 29. A judj);ment in replevin, on the plea 
 of 71071 tenuit to a cognizance for rent arrear, is admissible evidence in an action 
 for rent: Hancock v. Welsh, 1 Stark. C. (2 E. C. L. R.) 347. Debt on bond, plea 
 usury, the judgment in an action by the defendant against the plaintiff for 
 penalties, is evidence for the plaintiff: Cleve v. Poioell, 1 M. & Rob. 228 ; Pearce 
 V. Gray, 2 Y. & C, Ch. C. 322. 
 
 » B. N. P. 245 ; Gilb. Law of Ev. 30 ; Hudson v. Robinson, per Lord Ellen- 
 borough, 4 M. & S. 478. 
 
 •• Su]/ra, p. 332.
 
 JUDGMENT, EFFECTS OF. 361 
 
 verso, a conviction upon an indictment is not evidence for the plain- 
 tiff in an action for the same wrong : first, because the defendant 
 upon the indictment could not have attainted the jury for a false 
 verdict ; secondly, because there is no mutuality ; tlnrdly, because it 
 does not appear that the verdict was not procured by means of the 
 testimony of the opposite party." Accordingly, a conviction upon an 
 indictment for trespass is not evidence upon an action brought for 
 the same trespass ;*^ and a conviction upon an indictment for a 
 *conspiracy was not binding upon the ancient writ of con- r^opQ-i 
 spir^cy by the same party.® But where, upon an indict- 
 ment the defendant confesses his guilt, the confession is evidence in 
 a civil proceeding,^ since those objections do not apply ; for the re- 
 cord does not rest upon the testimony of any interested witness ; 
 and an attaint must always have been out of the question. It has, 
 indeed, been laid down that a conviction in a court of criminal juris- 
 diction is conclusive evidence, if the same facts afterwards come col- 
 laterally in controversy in a court of civil jurisdiction.^ And, there- 
 fore, that the conviction of the father upon an indictment for bigamy 
 would be conclusive in ejectment as to the validity of the second 
 marriage, although an acquittal would be no proof of the reverse. 
 In support of this position no authority is cited except that of Boyle 
 V. Boyle ;^ but the question there was, whether a prohibition should 
 not be awarded in a jactitation suit, the complainant in that suit 
 having been convicted of bigamy in marrying a second wife, whilst 
 his first wife, the defendant in the jactitation suit, was living ; and a 
 prohibition was granted. Admitting this decision to be law, it can 
 
 " In Gilb. Law of Ev. 31, it is urged, that where the verdict is founded on 
 other evidence besides the party's own oath, it is admissible ; but how are the 
 jury to know what weight the oath of the party had? It may be questioned 
 whether the reasons founded on the interest of the witness are now at all 
 available. 
 
 ^ Sampson v. Toothil, 1 Sid. 324 ; B. N. P. 243 ; Jones v. White, Str. 68 ; Wil- 
 kinson V. Gordon, 2 Add. 152. 
 
 ® 27 Ass. 13 ; Tr. per Pais 30. A process long obsolete, and now virtually 
 abolished by the Uniformity of Process Act. 2 & 3 Will. IV. c. 39. 
 
 ^ Such evidence is warranted by the old authorities. See Lamb. Inst. B. 2, c. 
 9 ; 9 II. 6 ; 60, 11 II. 4, 65 ; Trials per Pais, 30 ; 27 Ass. 7. The reason given 
 by Sharde is, that a confession is stronger than a verdict. In such a case, the 
 objection, that the verdict may have been obtained on the evidence of the party 
 who now seeks to take advantage of it, ceases ; and the case seems to stand upon 
 the same footing with that of any other admission ; and so ruled by AVood, B., 
 Leicester Lent Assizes 1808. So, Tiley v. Coivling, 1 Ld. Ilaym. 744. 
 
 e B. N. P. 245. 
 
 "3 Mod. 164; Comb. 72, s. c.
 
 6bZ JUDICIAL DOCUMENTS. 
 
 scarcely be inferred that the conviction would have been equally 
 conclusive of civil rights in a temporal court. Indeed, where an 
 action was brought for words which charged the plaintifif with felony, 
 r^qpq-| it was hcld that the defendant was at liberty to go *into 
 
 evidence to prove his guilt, because what had passed between 
 others could not affect him.' 
 
 As a general rule, therefore, a verdict or judgment in a criminal 
 case is not evidence of the fact upon which the judgment was founded 
 in a civil proceeding. 
 
 The case of The King against The Warden of the Fleet^ is a strong 
 authority for this position. The defendant was tried at bar for per- 
 mitting the escape of prisoners from the Fleet Prison. To prove 
 the escape a witness was offered who had been a prisoner. It was 
 objected that he was incompetent, since he had given a bond for his 
 being a true prisoner, which he had forfeited by his escape; and be- 
 sides that, he had been retaken ; and that if the defendant should 
 be convicted upon his evidence, and debt should afterwards be 
 brought by him upon the bond, the conviction would be evidence to 
 make it void, as taken for ease and favor ; and that in an action of 
 false imprisonment for the retaking, the conviction would also be 
 evidence. But it was answered, and resolved by the court, that the 
 conviction would be no evidence against the warden upon debt on the 
 bond, nor for the prisoner in false imprisonment against the warden ; 
 because it would not be between the same parties. For a conviction 
 at suit of the King for battery, &c., cannot be given in evidence in 
 an action of trespass for the same battery, nor vice versa ; the like 
 law of an usurious contract. In the case of Hillyard v. Grantham, 
 r*^CS~\ ^po^ ^^® ^^^^^ ^^ ^^^' ^^® Court of King's *Bench were of 
 
 opinion that a sentence of excommunication against the 
 father and mother for fornication was not admissible in evidence upon an 
 ejectment to bastardize the issue, because it was a criminal matter, 
 and therefore could not be admitted in a civil cause ; and also because 
 it was res inter alios acta. And in the case of Cribson v. Macarty^ 
 
 » Enyland v. BourJce, 3 Esp. 80 ; Cook v. Field, 3 Esp. 133. An acquittal of 
 a party by the jud<^ment of a court-martial from the charge on which he was 
 arrested, does not deprive the defendant, in an action of trespass for the arrest, 
 of his right to justify, on the ground that there was reasonable and probable 
 cause for the imprisonment : Jiai/lei/ v. Warden, 4 M. & S. 400. 
 
 " 12 Mod. 339 ; see also the cases of R. v. Boston, 4 East 572 ; and Bartlett v. 
 Pickersgill, Ibid. 577, in which the principle is fully established, that a convic- 
 tion obtained on the oath of an interested party is of no eifect. 
 
 ' Cited Ca. temp. Hard. 311. 
 
 " Ca. temp. Hard. 311.
 
 VERDICTS, ETC., IN CRIMINAL CASES. 364 
 
 ■where the question was whether certain promissory notes were genu- 
 ine, the defendant offered in evidence the record of the phxintiff's 
 conviction for the forgery of one of the notes ; but Lord Hardwicke 
 refused to admit the evidence, on the ground suggested by the 
 phiintiff's counsel, viz., that no record of a conviction could be 
 evidence in a civil suit, because it might have been obtained by the 
 evidence of a party interested. And the same doctrine is re- 
 ported to have been expounded by the court in the case of Rich- 
 ardson V. Williams.^ In the case of The King v. Boston," decided 
 while the law excluded the *testimony of an interested wit- r*q^r-| 
 ness, it was held, on an indictment for perjury, assigned 
 upon an answer to a bill of injunction, that the prosecutor, against 
 whom the defendant had brought the action at law, was a competent 
 witness, on the express ground that the conviction could not be used 
 by him for the purpose of obtaining relief in equity. 
 
 The main objection to the reception of such evidence is that there 
 would be no mutuality ; for an acquittal of a party on a criminal 
 proceeding would not be available in a civil action. ^ Where the 
 
 " 12 Mod. 319 ; and see Jones v. White, Str. 68, where the question was, 
 whether upon the issue devisavit vel non, the coroner's inquest, finding the de- 
 ceased a lunatic, was admissible in evidence ; and the judges were divided upon 
 the question of admissibility. But Eyre and Pratt, Js., were for excluding the 
 evidence, because the proceeding was of a criminal nature, and therefore was 
 not admissible in a civil proceeding. And the Chief Justice, and Powys, J., 
 thought it admissible, on the special ground, that since the plaintiff was exe- 
 cutrix, the inquest which saved the personal estate, was to her advantage ; and 
 see R. V. Bowler, Vol. II., tit. Will. See also Hatliaway v. Barrow, 1 Camp. 
 151, where Sir J. Mansfield held, that in an action on the case for a conspiracy, 
 a conviction of the defendants upon an indictment, where the plaintiff was a 
 witness, was not evidence. A conviction was not evidence for the informer,, 
 though his name did not appear on the face of the proceedings : Smith v. Rum- 
 mens, 1 Campb. 9 ; s. p. ruled in Hathaway v. Barrow and others, 1 Campb. 151 ; 
 see also Burdon v. Browning, 1 Taunt. 520 ; Richardson v. Williams, 12 Mod. 
 319; Gibson V. M'Carty, Cas. temp. Hardw. 311 ; Uillyard v. Grantham, cited 
 by Lord Hardwicke in Brownsword v. Edwards, 2 Ves. 246. 
 
 ' 4 East 572 ; see also Bartlett v. Pickersgill, 4 East 577 ; Burdon v. Browning, 
 
 1 Taunt. 520. 
 
 PGilb. Law of Ev. 35; B. N. P. 232, 233 ; see Lord EUenborough's observa- 
 tions, Hudson V. Robinson, 4 M. & S. 479; 12 Mod. 339; Hardr. 472; 11 St. 
 Tr. 462; Bac. Abr., Ev. F. In Blakemore v. The Glamorganshire Canal Co., 
 
 2 C, M. & R. 139, Parke, B., observed as to the cases cited, that the judges, in 
 noticing the objection to the reception of such evidence, that the verdict might 
 have been obtained upon the evidence of the party seeking to avail himself of 
 it, were only assigning one reason which existed in the particular cases, instead 
 of relying on the generjil principle. An estoppel is always reciprocal : Gaunt
 
 365 JUDICIAL DOCUMENTS. 
 
 father was acquitted on an indictment for having two wives, it was 
 teld that the record was not evidence in a civil case, where the 
 validity of the second marriage was controverted. '^ On this ground 
 it is asserted in BuUer's Nisi Prius,"" that a conviction at the suit of 
 the King for a battery, cannot be given in evidence in trespass for the 
 same battery. 
 
 The record of an acquittal or conviction upon a criminal charge, is 
 r*^rfin ^^ general pleadable in bar, or conclusive evidence *upon 
 another indictment or other proceeding for the same offence. 
 The parties are the same in both, and no one ought to be brought 
 into jeopardy twice for the same charge.^ Upon this ground it has 
 been held, that a person who had killed another in Spain, and had 
 been tried and acquitted by a competent tribunal there, could not be 
 tried again here for the same offence.' 
 
 From the nature of the proceeding an acquittal upon an indict- 
 ment for the non-repair of a road, is not conclusive evidence upon a 
 subsequent indictment as to any particular point, since it concludes 
 nothing as to the general liability, but only shows that the defendant 
 was not liable at the particular time laid in the former indictment." 
 But a conviction in such case is conclusive as to the liability, unless 
 fraud can be shown.^ The record of a conviction was in one case 
 said to be conclusive evidence against the inhabitants of a particular 
 district of their obligation to repair a road, unless they can show that 
 it was obtained by fraud.^ But fraud is there put by way of example 
 
 V. Wainman, 3 Bing. N. C. (32 E. C. L. R.) 69 ; Gilb. Law of Ev. 28 ; B. N. P. 
 232. 
 
 ■J The reason assigned for this is, that less evidence is necessary to maintain 
 the action than to attaint the criminal, and therefore his acquittal was no argu- 
 ment that the fact was true : Gilb. Law of Ev. 33. 
 
 "■ P. 233. So a conviction of an assault before a magistrate, on the informa- 
 tion of the party assaulted, is not evidence in an action for the assault : Smith 
 V. Rummcns, 1 Camp. 9 ; see also Hathaway v. Barroio, 1 Camp. 151 ; 1 Taunt. 
 520. But under the statute 9 Geo. IV. c. 31, ss. 27, 29, a certificate of acquittal, 
 or the conviction and paying the penalty or suffering the punishment, vrill bar 
 the action. 
 
 * 4 Co. 40 ; see B. N. P. 243 ; 1 Sid. 325. 
 
 * Hutchinson's case, 1 Show. 6 ; B. N. P. 245 ; see Vol. II., tit. Foreign Law. 
 ° Gilb. Law of Ev. 32 ; B. N. P. 245 ; R. v. Burbon Inh., 5 M. & S. 392 ; per 
 
 Lord Kcnyon, Bex v. St. Pancras, Peake, C. 220. 
 
 * Although a conviction in a court of criminal jurisdiction is conclusive 
 evidence of the fact if it come collaterally in controversy in a court of civil 
 jurisdiction, yet an acquittal does not prove the revei-se, because it does not 
 ascertain the facts : per Buller, J., B. N. P. 245. 
 
 y R. v. St. Fancras, Peake, C. 220. Note, that Lord Kenyon held it in the
 
 VERDICTS, ETC., IN CRIMINAL CASES. 366 
 
 only,^ for as against the parish at large the judgmont is inconclusive, 
 if the defence was conducted by the inhabitants of a particular dis- 
 trict in which the indicted road lay, without any notice to the rest of 
 the *parish.^ So upon an indictment against a parish con- p^Q^7-i 
 sisting of several districts, one of which pleaded a custom for ^ -' 
 the inhabitants of each of the three districts to repair their own 
 roads, independently of each other, which custom was traversed, the 
 prosecutor having upon the trial proved records of conviction of the 
 parish at large (upon not guilty pleaded) for not repairing roads lying 
 in the particular districts ; the defendants were permitted to adduce 
 evidence that such pleas were pleaded without their knowledge.'' 
 
 The record of a judgment in a criminal (as in all other cases), is 
 in general conclusive evidence as to the fact of the conviction and 
 judgment, and as to all legal consequences resulting from it. 
 
 A judgment in a criminal proceeding is in the nature of a judgment 
 in rem ; such a judgment standing unreversed is conclusive evidence 
 as to all its consequences, although with some exceptions. Thus an 
 accessory to a felony, notwithstanding the judgment against his prin- 
 cipal, is entitled to controvert his guilt. In this case, although the 
 conviction of the principal may be alleged in the indictment against 
 the accessory ;" it is in effect but primd facie evidence.*^ But this is 
 
 above case to be conclusive on an indictment against another parish. The ques- 
 tion, however, was between the indicted parish and the parish of Islington, the 
 convicted parish. 
 
 ^ See the note, 2 Saund. 159 (a) ; see also R. v. Eardisland, 2 Camp. 494. 
 
 * Doug. 421, 3d edit. ; B. v. Townsend, R. v. Leominster ; see 2 AVms. Saund. 
 (a), note. 
 
 " R. V. Eardisland, 2 Camp. 494. 
 
 <= But in R. V. Turner, 1 Moo. C. C. 347 ; R. v. Ratdiffe, 1 Lew. C. C. 112; 
 Keahle v. Payne, 8 Ad. & E. (35 E. C. L. R.) 560 ; it is stated that many of the 
 judges (all the judges except two being assembled) were of opinion that the 
 record of the conviction of the principal would not be evidence of the fact, 
 where the indictment against the accessory alleged not the conviction but the 
 guilt of the principal. And on principle it would seem to be evidence only 
 when the indictment alleges the conviction of the principal, and simply to 
 support that allegation. See note (e), infra. 
 
 •* Fost. 364, 365; R. v. Smith, Leach 288; see tit. Accessory. One reason 
 assigned is, that the witnesses against the principal may be dead, or cannot be 
 procured ; but the main reason appears to be, that the proceeding is in rem, and 
 in general conclusive against all the world as to all the consequences of the 
 attaint. In Rex v. Blick, 4 C. & P. (19 E. C. L. R.) 377 ; the record of the con- 
 viction of the principal, upoii his pleading guilti/, was held to be prima facie 
 evidence of the theft as against the receiver.
 
 368 JUDICIAL DOCUMENTS. 
 
 perhaps tlie only case in which a *judgraent founded on a 
 '- -^ verdict is not conclusive as to the attainder of the principal." 
 For a judgment in a criminal matter, as far as regards all the conse- 
 quences of the judgment, is binding upon all; the attainder of a 
 criminal is, as long as it remains in force, conclusive upon all claim- 
 ing from, or through the party attainted/ And a conviction of a 
 crime, which formerly rendered a person incompetent as a witness, was 
 conclusive against all.^ 
 
 Upon the same grounds, decisions in the inferior courts of justice,** 
 convictions by magistrates, and indeed all other legal and authorized 
 adjudications — as, for instance, sentences of expulsion by colleges, or 
 of deprivation by visitors — are evidence to establish the fact that such 
 an adjudication has taken place, and all the legal consequences that 
 may be derived from it. 
 
 Amongst these legal consequences is the protection of any party 
 who has acted in a judicial capacity within the limits of his judicial 
 authority. In order to insure to such parties this protection the 
 law declares that where actions are brought against magistrates 
 and others, in consequence of what has been done under a convic- 
 tion for any offence within their jurisdiction, the proceedings 
 themselves, if regular, are evidence not only of the fact of the 
 conviction, but of the fact on which the judgment was founded ; 
 r*^fiQ1 ^^^ ^^^ plaintiff is not at liberty to controvert *and dis- 
 prove it by evidence.' In an action for trespass and false 
 
 * Qu. whether this is not admitted in favorem vitce, for it is not necessary 
 that the indictment should aver the guilt of the principal: Fost. 365. It is suffi- 
 cient to allege the conviction simply : see Fost. Disc. 3, c. 2. 
 
 'Where it is founded upon a verdict, an alienee cannot falsify the attainder: 
 1 Hale 361 ; 2 Hawk. c. 50, s. 2. 
 
 ^ See Witness. 
 
 ^ As to Bankruptcy and Insolvency see these titles, Vol. II. 
 
 1 Fuller V. Fotch, Holt 287. In Wilson v. Weller, 1 B. & B. (5 E. C. L. R.) 
 57, it was held that a magistrate's order for the payment of wages to a servant, 
 stating a complaint upon oath, and an examination on oath, precluded the 
 plaintiff, in replevin, from pleading, in bar of a plea of cognizance, that the com- 
 plaint was not made upon oath. What judges of the matter have adjudged is 
 not traversable : per Holt, C. J., in Groenvelt v. Bnrwell, Salk. 396. But if a 
 constable commit a man for a breach of the peace, his power is traversable, for 
 he is not a judge ; he acts not for punishment, but for safe custody : Ibid. If a 
 justice of the peace record that, upon his view, as a force, which is not a force, 
 he cannot be drawn in question either by action or indictment: 12 Co. 25 ; 27 
 Ass. 19; Salk. 397. Neither an indictment nor an action lies against a judge 
 for what he does judicially, and for wliat he has jurisdiction to do, if the cir- 
 cumstances warrant it: Hammond v. Jlowell, 1 Mod. 184 ; 2 Mod. 218 ; Bushell'S
 
 CONVICTION BY JUSTICES. 369 
 
 imprisonment, the defendant gave in evidence a conviction by liim 
 as a magistrate, of the plaintiff, for unlawfully returning to a parish 
 after a removal from it, and a warrant, reciting the conviction, requir- 
 ing the keeper of the house of correction to keep him to hard labor 
 for twenty-six days; and Yates, J., held that the conviction could 
 not be controverted in evidence, and the plaintiff was nonsuited.'' 
 For although the magistrate may have formed an erroneous judgment 
 upon the facts, that is properly the subject of an appeal; and thene- 
 fore, where an appeal lies, no action can be maintained till the 
 merits have been heard, and the conviction quashed.^ Whenever a 
 magistrate assumes a more extensive jurisdiction than belongs to 
 him, he is liable in an action ;"" and if the excess of jurisdiction ap- 
 pear on the face of the proceedings *the conviction cannot ^ 
 be set up as a defence to the action." But where the pro- *- ^ 
 ceedings are regular and formal, and the conviction still subsists, the 
 plaintiff cannot go into evidence to show that in the particular case 
 
 case, Vaugh. 135 ; 1 H. 6, 64 ; 47 E. 3, 50 ; Dicas v. Lord Brougham, 1 M. & 
 Kob. 309 ; sec Vol. II., tit. Justices — Trespass. 
 
 ^ Strickland v. Ward, 7 T. R. 633 ; Holt 287 ; Carth. 346 ; Hardr. 478 ; Cro. 
 Car. 395 ; 1 Vent. 273 ; 1 B. & B. (5 E. C. L. R.) 432 ; 2 B. & Ad. (22 E. C. L. 
 R.) 408 ; Cave v. Mountain, 1 M. & G. (39 E. C. L. R.) 257 ; R. v. Bolton, 1 Q. 
 B. (41 E. C. L. R.) 60. 
 
 1 Fuller V. Fotch, Holt 287; 7 T. R. 631 ; 2 B. & P. 391 ; 12 East 81 •, 16 East 
 21 ; Baylis v. Strickland, 1 M. & G. (39 E. C. L. R.) 591. 
 
 ™ Crepjjs V. Burden, Cowp. 640 ; Gray v. Cockson, 16 East 21 ; Hill v. Bate- 
 man, 2 Str. 710 ; Morgan v. Hughes, 2 T. R. 225. 
 
 ° But now, under the statute 11 & 12 Vict. c. 44, s. 2, before any ac ion can be 
 maintained for any act done in the matter of which the justice has not jurisdiction 
 or in which he has exceeded it, the conviction must have been quashed on appeal 
 or by the court of Q.. B. And no action can be brought, even for anything done 
 under a warrant which has been followed by a conviction or order, until the 
 conviction or order has been quashed. If, too, the conviction or order be con- 
 firmed on appeal, no action (s. 6) can be maintained for enforcing it. By s. 3, 
 also, no action at all can be maintained against one justice for issuing a warrant 
 to enforce the conviction or order of another justice, but only against the latter. 
 And upon this statute see Leary\. Patrick, 19 L. J., M. C. 211; Barton v. 
 Bricknell, 20 L. J., M. C. 1 ; Pratt v. Parkinson, 20 L. J., M. C. 208. For instances 
 in which magistrates have been considered to exceed their jurisdiction, see Hill 
 V. Bateman, 2 Str. 710, where the magistrate committed the party to prison, 
 although he had effects which might have been distrained upon ; Groome v. 
 Forrester, 5 M. & S. 314, where an overseer was committed to gaol until he had 
 given up all and every the books, concerning his office of overseer, belonging to 
 the parish, the information mentioning one specific book only ; Vol. II., tit. 
 Justices — Conviction.
 
 370 JUDICIAL DOCUMENTS. 
 
 the defendant had no jurisdiction." Upon trespass brought against 
 justices, they proved a conviction by them of the plaintiif for a mis- 
 demeanor in his service as an apprentice. The plaintiff, in order to 
 rebut this, oifered to prove that the indentures had previously been 
 avoided, and this proof being rejected, he was nonsuited. Upon mo- 
 tion to set aside the nonsuit, the court decided that upon the point of 
 jurisdiction the plaintiff was confined to such objections as appeared on 
 the face of the conviction. p 
 
 *Upon the same principle, it has been held that upon an 
 L ^ -J indictment for assault in turning the prosecutor out of a col- 
 lege, the sentence of expulsion is conclusive evidence of the fact of 
 expulsion. "^ And that a sentence of deprivation by a visitor of a col- 
 lege, is conclusive evidence of the fact of such deprivation in an action 
 of ejectment for one of the college estates.' Such sentences are, 
 however, impeachable for want of jurisdiction.^ 
 
 Tliirdlu, the admissibility of a judgment, decree, or verdict, is to 
 be considered, where the proceeding is, as it is technically called, 
 in rem. In such case it may be evidence against one who was not 
 a party to the suit, and Avho does not claim in privity with a party. 
 This happens where a court exercises a peculiar jurisdiction, Avhich 
 enables it to pronounce on the nature and qualities of particular 
 subject-matters of a public nature and interest, independently of any 
 private party.' 
 
 " Graij V. Cookson, 16 East 21 ; see also Mann v. Davers, 3 B. & A. (5 E. C. 
 L. R.) 103 ; Taylor y. Clemson, 2 Q. B. (42 E. C. L. R.) 1025; Mould v. Wil- 
 liams, 5 Q. B. (48 E. C. L. R.) 469 : and 1 M. & G. (39 E. C. L. R.) 591. 
 
 P Gray v. Cookson. A warrant of commitment for an offence summarily 
 punishable is no evidence of a fact recited in it, altliough necessary to give 
 jurisdiction : Stevens v. Clarke, 2 M. & Rob. 435. If the warrant were in effect 
 a conviction, it would be otherwise: R. v. Richards, 5 Q. B. (48 E. C. L. R.) 
 926. 
 
 "^R.v. Griindon, Co-WTp. 315. See the principle, Reg. v. Governors of Dar- 
 lingion School, 6 Q. B. (51 E. C. L. R.) 682. 
 
 ' rhillips y. Bury, Skinn. 447 ; 2 T. R. 346 ; 1 Ld. Raym. 5 ; and see Dr. 
 Patrick's case,! Lev. 65; Case of Neic College,'! Lev. 14: Dr. Widdrington' s 
 case, 1 Lev. 23; 7t'. v. Bishop of Chester, 1 W. BL 22; Rex v. Bishop of Ely, 
 Ibid. 71. 
 
 "Doe v. Haddon, 3 Doug. (26 E. C. L. R.) 310. So, although the sentences of 
 courts martial arc conclusive in actions at law, yet the courts of law will 
 examine wliether they have exceeded tlicir jurisdiction : Case of the Ship 
 Bounty, 1 East 313 ; Grant v. Gould, 2 II. Bl. 69 ; Stratford's case, 1 East 313 ; 
 and see the Mutiny Acts. 
 
 ' A cominission of bankruptcy is a proceeding to which all the world are 
 parties : per Lord Ellcnborough in Gervis v. Grand Western Canal Co., 5 M. &
 
 JUDGMENTS IN REM — SPIRITUAL COURT. 371 
 
 This class cDmprehends cases relating to marriage and bastardy, 
 where the Ordinary has certified; sentences relating to marriage and 
 testamentary matters in the Spiritual Court ; decisions of Courts of 
 Admiralty, judgments of condemnation in the Exchequer ; and adju- 
 dications upon questions of settlement." The general rule *is r;j<o7.7-| 
 that such a judgment, sentence, or decree, provided it be 
 final in the court in which it was pronounced, is evidence against all 
 the world, unless it can be impeached on the ground of fraud or col- 
 lusion.'' This seems to be built upon one or both of the following con- 
 siderations: first, because it is essential to the practical efficacy of 
 such a jurisdiction that its judi?ments should be binding in all courts; 
 secondly, because all who are interested in the result may usually be- 
 come parties to the proceeding. 
 
 In the first place it is evidently essential to the exercise of a 
 jurisdiction of this nature that its adjudications upon the subject- 
 matter should be final, not only in the courts in Avliich they are pro- 
 nounced, but in all other courts where the same question arises. It 
 would not only be inconsistent that the decision in rem should not be 
 final in the court in which it is pronounced, but, from the nature of 
 the subject-matter, mischievous and inconvenient. Although the par- 
 ties who are in a greater or less degree affected by the consequences 
 of the judgment may change, the subject-matter is immutable, and 
 therefore the decision upon it ought not to be liable to be disturbed. 
 And it ought to be binding in other courts, in order to prevent in- 
 consistency, and to support the jurisdiction of the court in which 
 that sentence has been pronounced ; for it would be in vain for a 
 court, like those enumerated, of exclusive jurisdiction to decide, if its 
 decisions upon the subject-matter were to be wholly disregarded. 
 
 Secondly, in general all parties really interested in the proceed- 
 ing in rem may usually be heard in assertion of their rights. 
 Where a question of marriage or bastardy arises in the courts of 
 common law, the certificate of the bishop, when returned and 
 entered of record, is binding, not only on the parties to that suit, 
 but upon all other litigating parties between whom the same point 
 arises.^ But in cases of bastardy, the stat. 9 Hen. VI., c. 11, spe- 
 
 S. 78. The determination of the Privy Council to advise the Crown to grant a 
 petition for a charter under l*Vict. c. 76, s. 49, is not conclusive as to its validity ; 
 llutter V. Chapman^ 8 M. & W. 1. 
 
 " R. V. Phillips, 8 Q. B. (55 E. C. L. R.) 745. 
 
 *B. N. P. 244; 11 St. Tr. 262. 
 
 y B. N. P. 245 ; 11 St. Tr. 261 ; 2 Wils. 128 ; 3 Bl. Com. 335.
 
 373 JUDICIAL DOCUMENTS. 
 
 r*o''Qi cially *provi(les that before any writ of certificate shall pass 
 L -• out of the court to the Ordinary, a remembrance, reciting 
 the issue joined, shall be certified to the chancellor, and that there- 
 upon proclamation shall be made in Chancery by three months, once 
 in every month, to the intent that all persons, pretending any 
 interest to object against the party which pretendeth himself to be 
 mulier, be before the Ordinary, to make their allegations and objec- 
 tions, as the law of the holy church requireth. Now, although the 
 immediate object of this statute was to ensure a greater degree of 
 publicity, yet it is to be observed, that it did not aifect the proceeding 
 before the Ordinary, but assumed that fill who are interested will be 
 allowed to offer their allegations before him. Whence, perhaps, it 
 may be inferred, that in all such cases any party interested is en- 
 titled to insist upon his objections before the Ordinary. With 
 respect to the proceedings upon an original suit in the Exchequer, 
 relating to the seizure and condemnation of goods, "^ and also to suits 
 in the Spiritual Courts and Courts of Admiralty, it must be presumed 
 that, before they proceed to pass a final decree or sentence, such 
 reasonable notice has been given as the justice of the case requires. 
 In conformity with these principles, it has been held that the 
 certificate of the Ordinary, when returned to the Temporal Court, 
 is conclusive upon all parties,* as regards civil rights at least,*" 
 
 ' In an action for goods sold, the defendant pleaded that the goods, which 
 were sweet spirits of nitre, had been compounded of spirits illegally distilled 
 and were seized while in his possession by the excise, and that an officer having 
 informed the Barons, and prayed condemnation, it was adjudged by the Barons 
 that they should be forfeited. This plea was held insufficient, it being very 
 questionable whether the spirits, when so compounded, were liable to forfeiture, 
 and it not appearing that the vendor had notice of the seizure, or was called 
 upon to protect the property : Bailey v. Harris, 12 Q. B. (64 E. C. L. R.) 905. 
 
 » B. N. P. 245 ; 2 Wils. 128 ; 11 St. Tr. 261 ; Fitz. Estopp. 282 ; li. v. Rhodes, 
 Leach 24. 
 
 ^ As to the effect of such a judgment in a criminal case the law is thus 
 stated, by De Grey, C. J., in The Duchess of Kingston's case: " Proceedings in 
 matters of crime, and especially of felony, fall under a diiferent consideration 
 from civil suits, first, because the parties are not the same ; for the King, in 
 whom the trust of prosecuting public offences is vested, and which is executed 
 by his immediate orders, or in his name by some prosecutor, is no party to such 
 proceedings in the Ecclesiastical Courts, and cannot be admitted to defend or 
 examine witnesses, or in any manner intervene or appeal ; secondly, such doc- 
 trines would tend to give the Spiritual Courts, which are not permitted to exer- 
 cise any judicial cognizance in matters of crime, an immediate influence in 
 trials for offences, and to draw the decision from the course of the common law, 
 to which it solely and peculiarly belongs. The ground of the judicial powers
 
 JUDGMENTS IN REM — SPIRITUAL COURT. 374 
 
 r*'^74-"l ^P^"^ questions of bastardy and *marriage. So the grant of 
 a probate in the Spiritual Court is conclusive evidence against 
 all as to the title to personalty, and to all rights incident to the char- 
 acter of an executor or administrator.*^ So is a sentence in the 
 
 given to the Ecclesiastical Courts is merely of a spiritual consideration, pro 
 correctione morum et pro salute animce. They are therefore addressed to the 
 conscience of the party. But one great object of the temporal jurisdiction is 
 the public peace, and crimes against the public peace are wholly and in all 
 their parts of temporal cognizance alone. A felony by common law was also 
 so. A felony by statute became so at the moment of its institution. The Tem- 
 poral Courts alone can expound the law and judge of the crime and its proofs ; 
 in doing so they must see with their own eyes, and try by their own rules, that 
 is, by the common law ; it is the trust and sworn duty of their office." 
 
 It is observable that in The Duchess of Kingston s case, the judgment given 
 in evidence was not a judgment in rem. It has. however, been seen that upon 
 an indictment against one as accessory to a felony, the conviction of the princi- 
 pal, although in other respects conclusive as to his attainder, is at most but 
 prima facie evidence against the accessory. The rule, therefore, as laid down 
 by C. J. De Grey, may perhaps in like manner be regarded as an exception in 
 favorem vitce, on the same footing with the case of the accessory, without further 
 impeaching the accuracy of that part of the judgment. See further on this 
 subject. Vol. II., tit. Polygamy. 
 
 « Roll. Abr. 638 ; 4 T. R. 258 ; 11 St. Tr. 218 ; 3 T. R. 130 ; Roll. Abr. 678 ; 
 Noel V. Wells, 1 Lev. 235 ; 1 Ld. Raym. 262. Even in an indictment for perjury, 
 to prove that A. made his will and appointed B. his executor, although the will 
 applied as well to real as to personal property: R. v. Turner, 2 C. & K. (61 E. 
 C. L. R.) 732. Payment of money to an executor who has obtained probate of 
 a forged will, is a discharge to the debtor of an intestate: Allen v. Dundas, 3 T. 
 R. 125. 
 
 ' The English doctrine, that a probate of a will is conclusive only as to personal 
 property, rests on the ground that the Ecclesiastical Courts have no jurisdiction 
 of real property: see 1 Gall. 623 ; 10 Wheat. 468, and cases cited 1 Pick. 241. 
 But in all the Now England States, in Pennsylvania and North Carolina, and 
 probably in some other States, the probate courts have jurisdiction of wills in 
 respect to property both personal and real. And it has been decided in 
 Connecticut, Massachusetts and North Carolina, that the probate of a will is 
 conclusive with regard to lands devised, as it is with regard to chattels : Bush 
 V. Sheldon, 1 Day 170 ; Judson et ux. v. Lake, 3 Day 318 ; Dublin v. Chadboiirne, 
 16 Mass. 433 ; Stanley v. Kean, Tayl. 93. In Rhode Island the probate was 
 formerly considered conclusive only as to personal property ; but in Spencer et 
 nx. V. Spencer, 1 Gall. 622, Mr. Justice Story intimated very clearly that this 
 was erroneous and ought to be corrected : see also Smith v. Fenner, 1 Gall. 171, 
 174. In Pennsylvania, however, the probate although conclusive as to the 
 personalty was held to be only prima facie evidence as to the realty ; and 
 the party who is dissatisfied may have the title tried in ejectment: Coates v. 
 Hughes, 3 Binn. 498 ; Spangler v. Rambler, 4 S. & R. 193 : Logan v. Watt et al., 
 5 S. & R. 212. The law of Maryland, as to evidence of the probate of a will of 
 23
 
 375 JUDICIAL DOCUMENTS. 
 
 i-^qyr-i *Spiritual Court of nullity of marriage/ when the decision 
 in the court itself is direct and final. Accordingly, where 
 the wife, de facto, of T. was libelled in the Spiritual Court by J. S. 
 for divorce on the ground of a pre-contract with him, upon which the 
 court dissolved the marriage, although T., the husband de facto, was 
 no party to the suit, it was held that he was bound by the sentence, 
 and that the issue of the second marriage of the wife with J. S. was 
 legitimate.® ^ So where (7. K. had issue M. K. by C. S. his wife de 
 facto, and after a sentence of nullity of marriage, 0. K. married 
 F., and they had issue E. K., it was held, upon the death of C. K., 
 that so long as the sentence of nullity stood unreversed, M. K., the 
 
 ^ Bunting v. Lepingwell, 4 Co. 29 ; Kenn^s case, 7 Co. 41 ; Hatfield v. Hatfield, 
 Str. 961 ; Da Costa v. Villa Real, Ibid. ; Jones v. Boiv, Carth. 225 ; Hervey^s 
 case, 20 How. St. Tr. 395. 
 
 ^ Bunting v. Lepingwell, 4 Co. 29. 
 
 lands, in an action of ejectment is the same with the common law of England : 
 Smith's Lessee \. Steele, 1 Har. & McIIen. 419; Darbi/^s Lessee v. Mayer et al., 
 10 Wheat. 470. So also as it seems is the law of South Carolina: see Howell v. 
 House, 2 Rep. Const. Ct. 80. In Massachusetts, the filing and recording in a 
 probate court of that State, of a copy of a will originally proved and allowed in 
 any other State or country, according to the provisions of stat. 1785, c. 12, is of 
 the same force and effect as if the original will had been there : Dublin v. 
 Chadbourne, ubi sup. In Kentucky, a will not proved and recorded there, has 
 been held not be, as such, admissible evidence for a devisee, though it has been 
 proved and recorded in another State : Carmichal v. Elmendorf, 4 Bibb 484 ; 
 Morgan v. Gaines, 3 Marsh. 614. Such will, however, has been there admitted 
 in evidence as an unrecorded deed, upon proof of the requisites of a good will 
 under the statute of that State : Hood v. Mathers, 2 Marsh. 555 •, Bowman v. 
 Bartlett, 3 Marsh. 69; and see Elmendorf \. Carmichal, 3 Litt. 479. In Ten- 
 nessee, the probate of a will of lands in another State is not evidence in an 
 ejectment for lands in Tennessee : Darbfs Lessee v. Mayer et al., ubi sup. A 
 statute of the State of New York provides a mode of proving and recording wills 
 in the Supreme Court or a Court of Common Pleas, and makes a transcript of 
 the record, certified by the clerk and sealed with the seal of the court, as 
 effectual in all cases as the original will. But such proof and record have been 
 held not to be conclusive upon the heir, who may still impeach the validity of 
 the will : Jackson v. Itumsey, 3 Johns. Cas. 234 ; 1 Phil. Ev. 434 ; note to 3d 
 Amer. ed. M. 
 
 ' If a husband leave his wife or a wife her husband, and remove into another 
 State for the purpose of obtaining a divorce, and a divorce is there decreed on 
 grounds which would not authorize it by the law of the State where the 
 marriage was contracted and the parties cohabited ; such decree is void in 
 the latter State, and will ])c treated as a nullity, whether the question arises 
 collaterally or in a suit by the wife to enforce the allowance of alimony: Jack- 
 son v. Jar.k.vm, I .Johns. 424; Borden v. Fitch, 15 Johns. 121; Hanover v. 
 Turner, 14 Mass. 227 ; see also Barber v. Roof, 10 Mass. 260. M.
 
 JUDGMENTS IN REM — SPIRITUAL COURT. 375 
 
 issue of the first marriage, was a bastard/ Although neither the 
 sentence of a Spiritual Court, nor of any other court, can be evi- 
 dence upon a subject beyond its jurisdiction,^ yet if the matter be 
 within its jurisdiction, it is evidence to all purposes, although not 
 within the jurisdiction. Therefore, in an action of trespass, a sen- 
 tence of deprivation in the Spiritual Court, on the ground of simony, 
 was allowed to be read, notwithstanding the objection taken that a 
 freehold interest of the plaintiff ought not to be concluded by what 
 was done in the Spiritual Court. For the court said that the Spir- 
 itual Court did not oust him of his freehold, but the ouster was the 
 consequence of the sentence.'' 
 
 Sentence in a jactitation suit, as it seems, is not admissible evi- 
 dence of marriage in a Temporal Court, unless it be *be- r^co-p-i 
 tween the same parties ;' at all events it is not conclusive. 
 In Jones v. Bow^ where the plaintiff in ejectment claimed through 
 the issue of Robert Oarr and Isabella Jones, it was held that a sen- 
 tence in the Arches in a jactatition suit, by which it was decreed 
 that there was no marriage between them, was a conclusive bar to 
 the plaintiff, and estopped him from going into any proof of mar- 
 riage, unless he could show that the sentence had been repealed. 
 The decision, however, is open to the objection that in a jactitation 
 suit the question of marriage arises collaterally and not directly, and 
 that it is not final. In the case of Hiliard v. Phaly,^ it was held, 
 that proceedings in the Spiritual Court against the father for incon- 
 tinency with the mother, could not be given in evidence against a 
 child of the marriage claiming by descent from the father."" And 
 certainly such evidence could not be considered as conclusive, be- 
 cause the marriage was not directly in issue. In BlackJiam s case^ 
 
 ' Kenn's case, 7 Co. 41. 
 
 e Betsworthv. Betsworth, Sty. 10; 12 Vin. Abr. 128, 
 
 " Phillips v. Craicley, Freem. 84, pi. 103 ; 12 Vin. Abr. 128. Note, the court 
 would not allow the proofs in the Spiritual Court to be read, because it was not 
 a court of record. 
 
 ' Infra, p. 378, note [s). 
 
 " Carth. 225, 226 ; 12 Vin. Abr. 128. 
 
 ' 8 Mod. 180. 
 
 " The reason which is assigned is, that such proceedings could not affect the 
 title to lands. King, Lord Chancellor, thought that the sentence in the Spiritual 
 Court carried on in a regular suit, and in the lifetime of the parties, that they 
 were guilty of foi'nication, and the payment of commutation money by the 
 father, was strong evidence to show that there was no marriage, and he thought 
 it hard that it should be excluded. 
 
 ° 1 Salk. 290.
 
 376 JUDICIAL DOCUMENTS. 
 
 it was expressly held, that although a matter directly decided by 
 the Spiritual Court could not be controverted, yet that the rule did 
 not extend to any collateral matter to be inferred from their sentence. 
 A jactitation suit is founded merely on a supposed defamation, 
 and involves no matrimonial question, unless the defendant plead a 
 marriage ; and whether it continues a matrimonial cause throughout, 
 or ceases to be so on failure of proving a marriage, still the sen- 
 tence has only a negative and qualified effect, viz., that the party 
 r*Q77i ^^^ failed in *his proof, and that the libellant is free from 
 matrmionial contract, as tar as yet appears, leaving it open 
 to new proofs of the same marriage in the same cause, 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 Ecclesiastical Court, 
 and is not conclusive there, it cannot conclude another court which 
 receives the sentence from going into new proofs to make out that 
 or any other marriage." The sentence in a jactitation suit is, there- 
 fore, neither a direct nor a conclusive sentence as to any marriage: 
 consequently, as it is not a proceeding m rem, it appears on gene- 
 ral principles to be inadmissible evidence to prove or disprove a 
 marriage in a proceeding in any other court. In Tlie Duchess of 
 Kingston s case, where such a sentence was offered by the defendant 
 on a charge of polygamy to disprove the first marriage, the judges 
 held that such a sentence, even admitting it to be evidence at all in 
 a criminal proceeding, was not conclusive evidence, and that at all 
 events its effects might be avoided by proof of fraud or collusion.^ 
 In the case of Bobins v. Cruchlei/, the plaintiff having brought a writ 
 of dower, the defendants pleaded ne unqiies aeeouple ; the replication 
 alleged that Sir W. Wolseley libelled the plaintiff in the Spiritual 
 Court, as his wife, charging her with adultery with Robins (as whose 
 widow she claimed), and praying a divorce ; and that she pleaded 
 that she was the wife of Robins, and then set forth the sentence of 
 the court that she was the wife of Robins. The defendants demur- 
 red ; and after two arguments, the court held the plea to be bad ; 
 and this judgment seems to have been founded not merely on the con- 
 sideration that the bishop could not be ousted of his jurisdiction by 
 this plea, but also on the ground that such a decree could not be 
 pleaded in bar at all against a stranger. Willes, C. J., said,'^ no de- 
 
 »2() llnw. St. Tr. 355. 
 
 P R. V. JJufhe.is of Kingston, 20 IIow. St. Tr. 355. As to the construction of 
 Htatiite 1 Jac. I. c. 11, sec Polyuamy. 
 ') '1 WilH. 1124.
 
 JUDGMENTS IN REM — EXCHEQUER. S78 
 
 terminations in the high courts *touching lands shall bind r*o'-o-i 
 strangers ; much less ought a sentence in the Spiritual 
 Court, to which Mr. Robins was no party, to bind his heirs. And 
 Clive, J., said,' " Robins was no party to the suit ; and why the sen- 
 tence should bind his heirs I cannot conceive ; it is mere matter of 
 evidence."* So upon an indictment for forging a will, it may be 
 now proved that the will was a forgery, notwithstanding the probate,' 
 although the contrary was once held." 
 
 So a judgment of condemnation in the Exchequer is conclusive 
 upon all,'' not only as to the right of the Crown to the condemned 
 property, but also in justification of the officer who seized it, where 
 the only question is, whether it was forfeited or not.^ But a convic- 
 tion in a penalty for adulterating spirits, which does not operate in 
 rem, is not evidence between other parties. Such a conviction is not 
 evidence for the defendant in an action for the price af spirits sold, 
 in proof of their adulteration,'' and is not evidence of the facts stated 
 on another charge in respect of the same goods, founded on *a 
 different statute.^ In the case of Cook v. Sholl,^ indeed. Lord ^ ^ 
 Kenyon expressed an opinion, that an acquittal in the Court of Ex- 
 chequer, upon a seizure made for want of a permit, was conclusive 
 
 ' 2 Wils. 124. 
 
 ' It was intimated by Willes, C. J., and Bathurst, J., that the sentence was 
 not conclusive, because it was not final even between the parties, who might 
 (according to Oughton) at any time apply to have it reversed; and that the 
 court would not be bound by the sentence of a Spiritual Court, which was not 
 binding even in that court. Note also, the court said, that the sentence might 
 possibly be evidence before the bishop. 
 
 ' jB. v. Buttery and another, Old Bailey, May 6 1818; R. v. Gibson, Lane. 
 Summer Ass. 1802, cor. Lord Ellenborough ; 2 Pothier, by Evans, 356. 
 
 "^. V. Vincent, Str. 481. 
 
 ^ Scott V. Shearman, Bl. 977 ; 11 St. Tr. 218. See ^jer Lord Kenyon, Geyer 
 V. Aguilar, 7 T. R. 696 ; Evans's Observations, 2 Pothier 356. 
 
 y Ibid. And gHcej-e, Whether such a condemnation is conclusive against third 
 persons, save as to the fact that the goods are forfeited, and even then if the 
 judgment be by default? Bailey v. Harris, 12 Q. B. (64 E. C. L. R.) 905. If 
 the ground of condemnation be illegal on the face of it, the judgment is not 
 conclusive : Ibid. 
 
 * Hart V. Macnamara, cor. Gibbs, C. J., 4 Price 154. See also 5 Price 195 ; 
 and Bailey v. Harris, ante, p. 373, note (z). 
 
 '^ Attorney- Gen. v. King, 5 Price 195. 
 
 ^ 5 T. R. 255. The question reserved upon the trial being upon the construc- 
 tion of the permit, and not on the point whether the determination in the Ex- 
 chequer was conclusive, a verdict was entered for the defendant. And see 12 
 Vin. Abr., A. b. 22.
 
 379 JUDICIAL DOCUMENTS. 
 
 evidence in an action for the seizure, that the permit was regular, and 
 precluded all question upon the construction of the permit. It is, 
 however, observable, that the case was decided on a collateral ground, 
 and that on the second mention of the case the court seemed to think 
 that question open to discussion, and wished the parties would consent 
 to have it put upon the record. '^ ^ 
 
 It has been seen that a condemnation bj commissioners of excise is 
 final. "^ Although in one case this was doubted. So the judgment of 
 commissioners of taxes on an appeal, is final in an action of trespass 
 against the officer for levying.® 
 
 A conviction in rem is evidence, although obtained by the evidence 
 of the very party who seeks to use it.^ 
 
 Inquisitions of lunacy are admissible but not conclusive evidence 
 when the question is as to the state of the party's mind.^ 
 L J *Upon the same principles,^ adjudications in the Courts 
 
 ' Supra, note (6). A mere acquittal, it has been seen {s^ipra, p. 361), stands 
 on a very different footing as to its effect in evidence from a conviction ; it may 
 have resulted from collateral causes, independent of the merits ; and in such a 
 case it may be doubted whether the general principle, that a man is not to be 
 concluded by a proceeding to which he was no party, is superseded by the 
 peculiar principles which give effect to judgments in rem. 
 
 * Supra, p. 348, Fuller v. Fotch, Carth. 346. And see Terri/ v. Huntington, 
 Hardr. 483; Lane v. Hegberg, B. N. P. 19: Brown y . Bullen, 1 Doug. 407 ; 
 Radnor v. Beave, 2 B. & P. 391 ; Henshaw v. Fleasance, 2 Bl. 1174. 
 
 « Patchett V. Bancroft and others, 7 T. R. 367 ; B. N. P. 244. See also, 5 Price 
 202. 
 
 'Davis V. Nest, 6 C. & P. (25 E. C. L. R.) 167. 
 
 ^ In debt on bond against executors of obligor, an inquisition finding that the 
 testator was a lunatic, without lucid intervals, at the period of the execution of 
 the bond, is admissible, though not conclusive evidence : Faulder v. Silk, 3 
 Camp. 126 ; Frank v. Frank, 2 M. & Rob. 314 ; see also Surgeson v. Sealy, 2 
 Atk. 412. Vol. II., tit. Wills. 
 
 •" " From the time of Lord Hale down to the present period, it has been 
 clearly settled that a sentence of condemnation in the Court of Admiralty, 
 where it proceeds on the ground of enemy's property, is conclusive that the 
 property belongs to enemies, and not only for the immediate purpose of such 
 sentence, but is binding in all courts and against all persons. The sentence of 
 the Court of Admiralty proceeding in rem must bind all parties, must bind all 
 
 ' So a decree of restitution in the District CoQrt of the United States, of a 
 vessel which had been seized by revenue officers, is conclusive evidence, in an 
 action by the owner against the ofScers, that the seizure was illegal: Galston et 
 uL v. Hoj/l, 13 Johns. 561 ; 3 Wheat. 246. There is no distinction as to the 
 conclusivcnehs of a sentence operating in rem between a condemnation and an 
 ac'juittal ; the rule of evidence is reciprocal : Ibid. ; sec also 12 A'^in. Ab., A. b. 
 22 ; The Bennett, 1 Dodson 180. M.
 
 JUDGMENTS IN REM — ADMIRALTY. 380 
 
 of Admiralty, 'whether domestic' or foreign,'' upon prize questions, 
 being decisions of an exclusive jurisdiction operating in rem, are 
 conclusive evidence upon the matters Avhich they decide,' when the 
 same points arise incidentally in other courts ; whether they involve 
 questions as to the right of property, as in actions of trover;™ or the 
 questions of compliance or non-compliance with warranties in actions 
 on policies of assurance; and even although it appear that the court 
 has acted on peculiar rules of evidence and presumptions which are 
 not consistent with general principles." ' 
 
 the world." By the Master of the Rolls, in Kindersleij v. Chase, at the Cock- 
 pit, 1801, Park on Insurance 743. 
 
 ' 2 East 473 -, Geyer v. Aguilar, 7 T. R. 681 ; Garrels v. Kensington, 8 T. R. 
 230 ; Baring v. Ruijal Exchange Assurance, 5 East 99 ; Le Caux v. Eden, 2 
 Doug. 600 ; Kindersley v. Chase, Park, Ins. 743. 
 
 ^ Hughes v. Cornelius, 2 Show. 232 ; 2 Doug. 575 ; Burrows v. Jemino, 2 Str. 
 733; Roach v. Garvan, 1 Yes. 157; Eyre, C. J., observations, 2 H. Bl. 410. 
 But the sentence must be given either in the belligerent courts or in that of a 
 co-belligerent or ally, by a court constituted according to the law of nations : 8 
 T. R. 270 ; Havelock v. Rockwood, 8 T. R. 268 ; Donaldson v. Thompson, 1 
 Camp. 429. 
 
 ' Barzillag v. Leicis, Park, Ins. 725 ; that the property was neutral : Baring 
 v. Clagpett, 3 B. & P. 201 ; Saloucci v. Woodmas, 3 Doug. (26 E. C. L. R.) 345; 
 that it was enemy's property, Park, Ins. 725, 727. 
 
 " Ibid. Per Chambre, J., in Lothian v. Henderson, 3 B. & P. 513 ; Baring v. 
 Claggett, 3 B. & P. 214. 
 
 " Bolton v. Gladstone, 5 East 155 ; 5 East 99 ; 2 Taunt. 85. 
 
 ' This doctrine is recognized in the Supreme Court of the United States, in 
 Massachusetts, Connecticut and South Carolina : Craudson et al. v. Leonard, 4 
 Cranch 434 ; Baxter v. New England Marine Ins. Co., Mass. 277 ; 7 Id. 275 ; 
 Steicard v. Warner, 1 Day 142; Broum v. Union Lis. Co., 4 Id. 179 ; Campbell 
 v. Williamson, 2 Bay 237 ; Groning v. Union Lis. Co., 1 N. & McC. 537. The 
 Supreme Courts of New York and Pennsylvania also adopted the same doctrine; 
 Vandenheuvel v. U. S. Lis. Co., 2 Johns. Cas. 125 ; Dempsey v. Lis. Co. of Penn- 
 sylvania, 1 Binn. 299 ; note 4 Yeates 119, s. c. But in the former State, a con- 
 trary doctrine was established by the Supreme Court of Errors, 2 Johns. Cas. 
 451 ; and in the latter, the legislature have enacted that no sentence of a foreign 
 prize court shall be conclusive evidence of anything therein contained, except 
 of the acts and doings of such tribunal : Act of March 29th, 1809, 5 Sm. Laws 
 49. The sentence of a foreign court of admiralty or other foreign tribunal, is 
 not regarded as conclusive evidence by the courts of Virginia: Bourke v. Gran- 
 berry, 1 Gilm. 16. The doctrine of the conclusiveness of foreign prize courts is 
 not novel, nor does it take its origin in an incorrect extension of the principle 
 in Hughes v. Cornelius (2 Show. 232, 2 Dougl. 575), but is coeval with the species 
 of contract to which it is applied, and results from the application of the same 
 legal principle which prevails in respect to domestic judgments and sentences 
 of foreign courts ; per Washington, J., Croudson et al. v. Leonard, ubi sup. The
 
 381 JUDICIAL DOCUMENTS. 
 
 .-^r.^.-, *Accordino;ly'' it has been held that a sentence of condem- 
 ■- -^ nation by a French Court of Admiralty, during a war between 
 England and France, is conclusive evidence to show that the ship was 
 not Swedish. "^ So a sentence of condemnation is conclusive evidence 
 to show that a ship was not neutral, if that appear to have been the 
 ground of condemnation.'' So a condemnation of a ship at Malaga, 
 on the ground, inter alia, that the ship was English, was held to be 
 conclusive evidence that she was not neutral." And whenever the 
 sentence states the facts upon which the condemnation was grounded, 
 it is conclusive as to those facts ;^ as where the ship is condemned on 
 the ground, that she was enemy's property.' And where the ground 
 of condemnation is doubtful, the court will look into the proceedings 
 to ascertain the grounds of the sentence," and will act upon the grounds 
 of that decision, provided they can be distinctly ascertained.'' 
 L ^ ''-' But such a *judgment must decide the point distinctly : the 
 
 " Buin'ows V. Jemino, 2 Str. 732; Roach v. Garvan, 1 Ves. 157. Eyre, C. J., 
 observations, 2 H. Bl. 410; contra, Walker v. Witter, 1 Doug. 1. 
 
 p B. N. P. 2U ; 2 Show. 232. 
 
 •J Bernardi v. Motteux, Doug. 554 ; Calvert v. Bovill, 7 T. R. 523. 
 
 ■• Oddy V. Bovill, 2 East 473. 
 
 ' Christie v. Secretan, 8 T. R. 192 ; Marshal v. Parker, 2 Camp. 69 ; Everth v. 
 Hannam, 2 Marsh. 72 ; Fisher v. Ogle, 1 Camp. 418. 
 
 ' 3 Bos. & Pul. 525 ; Doug. 574. 
 
 ° 3 Bos. & Pul. 525 ; Bolton v. Gladstone, 5 East 155 ; Baring v. Royal Ex- 
 change Assurance Company, 5 East 99. If a ship be condemned generally as 
 lawful prize, no special ground being stated, it is to be presumed that it pro- 
 ceeded on the ground that the property was that of enemies : Saloucci v. Wood- 
 mas, 3 Doug. (26 E. C. L. R.) 345 ; Kindersley v. Chase, Park, Ins. 743. 
 
 ^ Kindersley v. Chase, Cock-pit 1801, Park on Ins. 743; Sir Will. Scott's ob- 
 servations on the case of Pollard v. Bell, Ibid. AVhere the sentence of condem- 
 nation of a foreign prize-court, for breach of blockade, was expressed with so 
 much ambiguity as to render it impossible to ascertain the real ground on which 
 it proceeded ; held, that the court was at liberty, upon the evidence given at the 
 trial in an action on the policy, to determine whether such violation of the 
 blockade did take place or not ; held also, that a voyage described in the policy 
 as to B., but if advised of a blockage continuing, then to M. V., was not illegal; 
 Dalgleish v. Hodgson, 7 Bing. (20 E. C. L. R.) 495; and see Naylor v. Taylor, 
 9 B. & C. (17 E. C. L. R.) 718 ; The Shepherdess, 5 Rob. Adm. R. 262 ; llorneyer 
 V. Lushington, 3 Camp. 89 ; Bernardi v. Motteux, Doug. 581. 
 
 sentence of a prize court, however, is not conclusive to establish any particular 
 fact, without which the sentence may have been rightly pronounced : Maley v. 
 Shatturk, 3 Cranch 4S8 ; see Filzsimmons v. Newport Ins. Co., 4 Cranch 185 ; 
 Maryland Ins. Co. v. Wood, 6 Cranch 29 ; The Mary, 9 Cranch 126 ; Calhoun v. 
 Ins. Co. of Pennsylvania, 1 liin. 293 ; and Galbraith v. Grade, there cited ; 1 
 Hall's Law Journal 139, 148. M,
 
 JUDGMENTS — HOW IMPEACHED. 382 
 
 intention of the court to decide the point is not to be collected by in- 
 ference or argument, but by specific afiirmation ;^ and even to this ex- 
 tent such decisions have not without considerable reluctance been held 
 to be conclusive/ If the facts disclosed do not warrant the sentence, 
 it will not, as to them, be conclusive.'' 
 
 So if the sentence has not decided the question of property, nor 
 declared whether it be neutral, but has condemned the property as 
 prize on a different ground, e. g., of a foreign ordinance against the 
 law of nations, the sentence, although conclusive on the question of 
 prize or no prize, would not be so on the question of neutrality.'' 
 Such a sentence is not admissible, unless it be that of a court, consti- 
 tuted according to the law of nations, exercising its functions in the 
 belligerent country, or in the country of a co-belligerent or ally" in 
 the war. 
 
 Such a sentence is binding, not only on the parties to the foreign 
 suit, but in all courts and on all persons. "^ The admissibility of such 
 evidence seems to extend to all ^decisions of foreign courts r^ooon 
 of competent jurisdiction which operate in rem.^ 
 
 So orders of justices on questions of settlement, not appealed against,^ 
 or when confirmed at sessions, are conclusive against all,^ as to all 
 
 y Per Lord Ellenborough, C. J., in Fisher v. Ogle, Park on Ins. 554 ; 1 Camp. 
 C. 418. Per Tindal, C. J., Dalgleish v. Hodgson, 7 Bing. (20 E. C. L. R.) 504. 
 
 * See Lord Ellenborough's observations, Ibid. 
 
 » Calvert v. Bovill, 7 T. R. 523 ; Pollard v. Bell, 8 T. R. 444 ; see also Bird v. 
 Appleton, 8 T. R. 562; Bolton v. Gladstone, 2 Taunt. 85; 2 Camp. 154. If the 
 grounds of the decision do not at all appear, qu. 
 
 " Pollard V. Bell, 8 T. R. 444; Baring v. Claggett, 3 B. & P. 215; Bird v. 
 Appleton, 8 T. R, 562. 
 
 " Oddy V. Bovill, 2 East 473. And, therefore, a sentence pronounced by the 
 authority of a capturing power, within the dominions of a neutral country, to 
 which the prize has been taken, is illegal, and inadmissible to falsify the war- 
 rants of neutrality : Havelock v. Rockwood, 8 T. R. 268 ; The Flad Oyen, 8 T. R- 
 270 ; Donaldson v. Thompson, 1 Camp. 429. 
 
 ** See Kindersley v. Chase, Park on Ins. 743. 
 
 ® As in case of marriage: Roach \. Garvan, 1 Ves. 157. See Lord Hard- 
 wicke's observations, Ibid. So on criminal charges : Hutchinson'' s case, 2 Str. 
 733; 1 Show. 6; Roche's case, 1 Leach. C. C. L. 134 ; supra, and see Vol. II., 
 tit. Marriage ; and further, as to the mode of proving the foreign law, see Vol. 
 II., tit. Foreign Law. 
 
 f Rex V. Kenilworth, 2 T. R. 599. 
 . ^ R.-v. Northfeatherton, 1 Sess. C. 154; 4 Ch. Burn. 1159. So an order of 
 filiation is conclusive to show that the party is the putative father : R. v. Best 
 and others, 6 Mod. 185 ; see also R. v. Calterall, 6 M. & S. 83 ; R. v. Sarratt, 
 Burr. S. C. 73 ; R. v. Harrow and Ryslip, Salk. 524 -, R. v. Kneptoft, 2 B. & C
 
 383 JUDICIAL DOCUMENTS. 
 
 the facts stated in the order,'' and as to all derivative settlements.' 
 So an order of removal executed without appeal is also conclusive^ as 
 to the settlement of the pauper up to that time against all the "world ; 
 but where the justices wanted jurisdiction, the order is a nullity ;'' 
 and may be objected against, even after a lapse of twenty years. 
 So orders of justices under 34 Geo. III., c. 64, for dividing roads, 
 are conclusive.^ 
 
 r*SS41 "^^^® proceeding by quo warranto is analogous to a pro- 
 ceeding *m rem, so that a judgment of ouster against a 
 mayor upon a quo warranto is evidence upon a similar proceeding 
 against a burgess who claims to have been admitted by that 
 mayor;" and is conclusive evidence, unless fraud can be shown." 
 So also a conviction of felony is, for many purposes, a proceeding 
 in rem; and is in general binding against all as to the consequences 
 of the attainder. It is, however, as has been seen, competent to an 
 accessory to controvert the guilt of the alleged principal, although 
 the record of conviction may be in some cases primd facie evidence 
 against the accessory as to the guilt of the principal. In Buller's 
 Nisi Prius, a conviction for bigamy seems to be considered to be in 
 the nature of a proceeding in rem ; and, therefore, as conclusive in 
 an action of ejectment upon a question of legitimacy ;° this, however, 
 seems to be very doubtful on principle. 
 
 Where the judgment is admissible evidence against one who was 
 
 (9 E. C. L. R.) 883 ; R. v. Wick St. Lawrence, 5 B. & Ad. (27 E. C. L. R.) 526 : 
 R. V. Wheelock, 5 B. & C. (11 E. C. L. R.) 511 ; Osgathorpev. Diseivorth, 2 Str. 
 1256 ; R. V. Oldburij, 4 Ad. & E. (31 E. C. L. R.) 167. The fact whether the 
 order was quashed on the merits or not may be inquired into on subsequent re- 
 moval : R. V. Wick St. Lawrence, ; R. v. Wheelock, uhi sup. ; R. v. St. Ann's, 
 Westminster, 9 Q. B. (58 E. C. L. R.) 878; R. v. Widecomhe, Ibid. 894; R. v. 
 Leeds, Ibid. 910. It seems questionable whether a pauper lunatic order under 
 9 Geo. IV. c. 40, is final: R. v. St. Peter's, Droitwich, 9 Q. B. (58 E. C. L. R.) 
 886. See Vol. II., tit. Settlement, where the decisions are more fully con- 
 sidered. 
 
 " Ibid. ; and R. v. Woodchester , 2 Str. 1172; B. S. C. 191. 
 
 * R. V. St. Mari/, Lambeth, 6 T. R. 616 ; R. v. Slichester, B. S. C. 551 ; 2 Bott. 
 686 ; R. V. Wi/e, 7 Ad. & E. (34 E. C. L. R.) 770 ; per Lord Denman, C. J. 
 
 J Rex V. Kenilworth, 2 T. R. 598 ; R. v. Corsham, 1 1 East 388 ; and see 2 Salk. 
 488 ; Sutton St. Nicholas v. Leverington, B. S. C. 276. 
 
 " R. V. Chilverscoton, 8 T. R. 178. 
 
 » R. V. Hicklinif, 7 Q. B. (53 E. C. L. R.) 880. 
 
 ° B. N. P. 231 ; R. V. Lisle, Andr. 163 : R. v. Hehdeii, 2 Str. 1109; R. v. 
 Mayor of York, 5 T. R. 66. 
 
 ° R. V. Mayor of York, 5 T. R. 66. 
 
 •■ B. N. P. 245 ; surpa, 338, et scq.
 
 JUDGMENTS, UOW IMPEACHED — FRAUD. 384 
 
 neither a party nor privy to it, being a direct, final and conclusive 
 determination of a court of competent jurisdiction upon the particu- 
 lar subject-matter, the rule seems to be that the judgment is conclu- 
 sive in any other court, unless it can be impeached on the ground of 
 fraud or collusion.'' ' Fraud, however, does not merely lower the 
 evidence to mere primd facie evidence of the fact, capable of being 
 rebutted by adverse evidence, but destroys its effect altogether. 
 For it seems that a record of a judgment in rem is usually either 
 conclusive, or wholly inoperative; except, indeed, in those cases of 
 felony where the guilt of the accused depends partly upon the guilt 
 of another, as the guilt of an accessory depends upon that of the 
 principal ; for there the record of the conviction *of the prin- r^ooc-i 
 cipal is but primd facie evidence to affect the accessory, who 
 may controvert the guilt of the principal, notwithstanding the 
 record. '^ A judgment upon a quo warranto against a mayor, which 
 is evidence as we have seen upon a quo ivarranto against one claim- 
 ing to be a burgess by virtue of his admission, may be impeached 
 upon the ground of fraud. '^ So in The Duchess of Kingston s case, 
 the trial of the defendant, on an indictment for bigamy, one of the 
 points resolved by all the judges was, that admitting a sentence of 
 the Spiritual Court in a jactitation suit to be conclusive evidence for 
 a defendant, yet, that still the counsel for the Crown might avoid the 
 effect of it by proving it to have been obtained by fraud and collu- 
 sion.'^ 
 
 P B. N. P. 244; 31 St. Tr. 262. Fraud (according to Lord Coke) avoids all 
 judicial acts, ecclesiastical or temporal: 3 Co. 77. 
 
 *• Fost. 365, 366, 367 ; Lord Sanchar^s case, 9 Co. 117, 119; supra, England 
 V. Bourke, 3 Esp. C. 80. See ante, p. 367, note (c). 
 
 •• E. V. Grimes, Burr. 2598 ; B. N. P. 231 ; 2 Barnard 370 ; B. v. Lisle, Andr. 
 163; 5 T. R. 72; E. v. Hebden, Str. 1100; 17 How. St. Tr. 802; and see the 
 cases last cited. 
 
 » 20 How. St. Tr. 355 ; Cross v. Salter, 3 T. R. 639. 
 
 * A judgment cannot be collaterally questioned unless for covin or collusion : 
 Postens V. Postens, 3 W. & S. 127 ; Baird v. Campbell, 4 Ibid. 191 ; Atkinson v. 
 Allen, 12 Vt. 619; Callahan v. Grisioold, 9 Mo. 784; Smith v. Keen. 26 Me. 
 411. A judgment, if merely irregular, is binding upon everybody but the de- 
 fendant; another judgment creditor against the same defendant cannot take 
 advantage of the irregularity : Loivber <& Wilmer^s Appeal, 8 W. & S. 387 ; 
 Evans v. Adams, 3 Green. 373 ; Smith v. Bradley, 6 S. & M. 485 ; Swiggart v. 
 Harber, 4 Scam. 364; Lewis v. Eogers, 4 Harris 18 ; Chesnut v. Marsh, 12 111. 
 173 ; Eoemer v. Denig, 6 Harris 482 ; Breading v. Buggs, 8 Ibid. 33. 
 
 '^ See Hull V. Blake, 13 Mass. 157; Potter v. Wheeler, Id. 507; Winchellv. 
 Stiles, 15 Mass. 230; Borden v. Fitch, 15 Johns. 121 ; Andrews v. Montgomery,
 
 385 JUDICIAL DOCUMENTS. 
 
 Although it is a general rule that a stranger may he admitted to 
 impeach a proceeding to which he was not a party, on the ground 
 of fraud or collusion, the reason ceases where the judgment or sen- 
 tence is offered against one who was a paity to it. In the case of 
 Prudham v. Phillips, the defendant proved her marriage with A. 
 B. ; this was answered by a sentence in the Ecclesiastical Court (to 
 which she was a party), which showed that she was then married 
 to another person : and after much consideration, Willes, C. J., 
 refused to permit the defendant to show that the sentence had been 
 fraudulently obtained.' Judgments of courts of competent juris- 
 
 » Ambler 763. And see Bessexj v. Windham, 6 Q. B. (51 E. C. L. R.) 166. 
 But where a sci. fa. is brought against a shareholder of a company on a judg- 
 ment against the company, he may allege that the judgment was obtained by 
 fraud ; see Philipson v. Earl of Egremont, 6 Q. B. (51 E. C. L. R.) 587. 
 
 19 Johns. 164, where the principle, that fraud will vitiate all judicial acts is dis- 
 tinctly recognized. In Stewart v. Warner et al., 1 Day 142, it was held, how- 
 ever, that the sentence of condemnation of a foreign court could not be avoided 
 by fraud, when collaterally called in question. The judgments of a court of com- 
 petent jurisdiction, although obtained by fraud, have never been considered as 
 absolutely void ; and therefore all acts performed under them are valid so far as 
 respects third persons. A sheriif, who levies an execution under a judgment 
 fraudulently obtained, is not a trespasser; nor can the person, who purchases 
 at a sale under such an execution, be compelled to relinquish the property he 
 has purchased. All acts performed under such a judgment are valid acts ; all 
 the legal consequences which follow a judgment are, with respect to third per- 
 sons, precisely the same in one obtained by fraud as if it had been obtained 
 fairly. When a person who has committed the fraud attempts to avail himself 
 of the Act, so as to discharge himself from a previously existing obligation or 
 to acquire a benefit, the judgment thus obtained is declared void as to that pur- 
 pose; but it may well be doubted whether a penalty would be incurred even by 
 the person committing the fraud, for an act which the judgment would sanction. 
 It is believed that no case can be adduced where an act, which is the legal con- 
 sequence of a judgment, has in itself created a new responsibility, even with 
 respect to the party himself, much less with respect to third persons who do not 
 participate in the fraud. Per Marshall, C. J., Simms et al. v. Slocicm, 3 Cranch 
 300. Hence it was held in that case, that a discharge from the prison rules, 
 under the Insolvent Act of Virginia, although obtained by fraud, was a dis- 
 charge in due course of law; and that upon such discharge, no action could be 
 sustained upon the prison bonds. So in Ainmidon v. Smith, et al., 1 Wheat. 
 447, a similar decision was made respecting a discharge according to the statute 
 of Rhode Island, for the relief of poor prisoners for debt, although obtained by 
 fraud and perjury. " But the court," says C. J. Marshall, "does not mean to 
 indicate that the effect of the oath and discharge granted by the magistrate, 
 miglit not be controv(!rted in any proceeding against the parties either in law or 
 equity, other tlian in a suit on the bond for keeping tiic prison rules."' — M. (See 
 also Lincoln v. Williams, 12 S. & R. 105. — I.)
 
 EVIDENCE TO PROVE CUSTOM, ETC. 385 
 
 diction in foreign countries, upon the subject of marriage, and all 
 other matters where the adjudication can be considered* as 
 in rem, seem to be equally binding with the decisions of our L J 
 own courts." 
 
 Lastly,^ in cases of custom, prescription and pedigree, or where 
 general reputation is evidence, a judgment, decree or sentence is 
 evidence, not ordy as between the same parties (where it would be 
 conclusive upon the same point), but also against all others ; for 
 such evidence is of the same nature, but much stronger, than mere 
 evidence of reputation.^ ^ It is not indeed to be considered as evi- 
 dence of any specific fact existing at that time, but it is proof of an 
 adjudication of a competent tribunal upon the state of facts and upon 
 the question of usage at that time.'' Accordingly, to prove a custom, 
 not only an ancient verdict in prohibition has been held to be evidence, 
 but also a recent verdict.*^ So is a decree in the Exchequer, on a com- 
 mission to try the question of custom ;'' or of modus." So in the case 
 of a prescription for a public right of way, a verdict against one de- 
 fendant, negativins such a right, is evidence against another defendant 
 ■who justifies under the same right."^ So upon a question as to aright 
 of ferry,'' or the liability to repair a public highway,^ or bridge,^ or 
 
 " See Lord Ilardwicke's dictum, Roach v. Garvin, 1 Yes. 159; and sitp)-a, p. 
 383. 
 
 ^ Supra, p. 320. 
 
 y Reed v. Jackson, 1 East. 355. The record of a judgment in an action of 
 ti*espass by a corporation for putting up stalls in a market, the defendant hav- 
 ing pleaded a right to do so without paying toll, is admissible evidence for the 
 corporation, being relevant to the claim in issue : Lancum v. Lovell, 6 C. & P. 
 (25 E. C. L. R.) 437. But the rule does not extend to awards: Evans v. Rees, 
 10 Ad. &E. (37 E. C. L. R.) 151. 
 
 ^ Per Parke, B., Pirn v. Curell, 6 M. & W. 266, 
 
 ■^ B. N. P. 233 ; City of London v. Clarke, Garth. 181. 
 
 " Cart V. Birkheck, Doug. 218. 
 
 « Croughton v. Blake, 12 M. & W. 205. 
 
 1 Reed v. Jackson, 1 East 355. « Pirn v. Curell, 6 M. & W. 234. 
 
 f Ibid., and R. v. St. Pancras, Peake, C. 219. 
 
 e R. V. Sutton, 8 Ad. & E. (35 E. C. L. R.) 516. 
 
 ' Verdicts and judgments between other parties (says the court of Connecti- 
 cut) are admissible to prove a public right of way, only when the party claims 
 by prescription, and merely to corroborate the presumption of a grant : Foicler 
 V. Savage, 3 Oonn. 90. M. 
 
 Although in general a verdict between strangers cannot be given in evidence 
 against a party, yet, where reputation is admissible in evidence, a verdict be- 
 tween strangers may be also, as on a question of pedigree : Patterson v. Gaines, 
 6 How. S. C. 550; Pile v. McBratney, 15 111. 314.
 
 386 JUDICIAL DOCUMENTS. 
 
 sea walls,^ or upon the public right of election to a parochial office, a 
 -, *judo;ment or decree between third parties in evidence.' So 
 L J in an action by the lord of a manor against a copyholder for 
 trespass to his free warren, a judgment in a quo warranto brought 
 against the former owner of the manor, in which he pleaded a pre- 
 scriptive right to the free warren as appurtenant to the manor, and 
 the Attorney-General confessed it on record, is evidence for the plain- 
 tiff in support of the right of free warren by prescription.'' And this 
 over the lands of tenants as well as over the demesne lands, where the 
 information charged a usurpation of the franchise over both, and the 
 court gave judgment for the defendant as to both, although the plea 
 set forth a title as to the demesne lands only, and the Attorney- 
 General's confession followed the plea ; the court thinking it pro- 
 bable that the omission was accidental.' A recent judgment for the 
 plaintiff in another action against another copyliolder for a trespass 
 on the plaintiff's free warren also held admissible against the defend- 
 ant." So a special verdict between other parties is evidence to prove 
 a pedigree." 
 
 Such evidence is not conclusive," unless both the parties be the same. 
 When such evidence is adduced to prove a custom or prescription, 
 where general reputation would be evidence a judgment or verdict 
 would be evidence against strangers to the record, as falling within 
 the general description of evidence capable of supporting such an 
 issue, being in fact a solemn adjudication founded upon satisfactory 
 testimony, and therefore certainly as binding upon a stranger as much 
 as mere hearsay upon the subject ; *but it is not conclusive, 
 '- -■ where the party was in fact a stranger to the record, because 
 he had not an opportunity to cross-examine the witnesses, or to dis- 
 prove the fact by opposite testimony, and ought not to be concluded 
 by the laches of another. 
 
 The proofs of verdicts, decrees and judgments, whether of record 
 
 " Reri. V. Leigk, 10 Ad. & E. (37 E. C. L. R.) 398. 
 
 ' Berri/ v. Banner^ Peake, C. 15G. 
 
 ^ Karl of Carnavon v. Villehois, 13 M. & W. 313. > Ibid. 
 
 " Ibid. 
 
 " B. N. P. 233 ; Carth. 79 ; Sir T. Jones, 224; Neale v. Wilding, 2 Str. 1151. 
 Wright, J., was of opinion in that case that the verdict was admissible ; the 
 other judges diffcrcMl from him, because it was res inter alios acta, and the evi- 
 dence laid before the former jury might, for anything they knew to the contrary, 
 still be produced. 
 
 ' See the cases referred to, and also Toolcer v. Dvke of Beaufort, 1 Burr. 146 ; 
 liidilvlph V. Ather, 2 Wils. 23; Mayor of Hull v. Horner, Cowp. 102.
 
 JUDGMENTS, ETC., HOW IMPEACHED. 388 
 
 or not of record, have already been considered in common "with the 
 proofs of public documents in general.'' At present, such matters 
 only will be noticed as are peculiar to this species of document. 
 They are either of record or not of record. If of record, they are 
 to be proved either by actual production from the proper repository, 
 by an exemplification,'' or by a sworn' or admitted" copy. Records 
 are complete as soon as they are delivered into court engrossed upon 
 parchment, and become permanent rolls of the court;' then, and not 
 before, a copy becomes evidence." On a writ of error assigning as 
 error *that the sentence (for cons])iracy) pronounced at Nisi r^ooQ-i 
 Prius was f^iulty, the Exchequer Chamber refused to notice 
 
 P See Public Documents, Proof of, ante, p. 257, et seq. ; and see pp. 262, 263, 
 the statutes as to admission of certified copies. 
 
 " See ante, p. 257 ; Bac. Abr., Ev. F. ; Str. 162. 
 
 ' On 7ml iiel record the record itself must be produced, or its tenor certified by 
 certiorari ; see ante, p. 256, and there can be no amendment of a variance under 
 3 & 4 Will. IV. c. 42 ; Cooper v. Penny father , 7 C. B. (62 E. C. L. R.) 739. Va- 
 rious statutes have directed that copies of the proceedings under them authenti- 
 cated in vfirious modes shall be evidence, see ante, p. 264. And there is also the 
 general statute, 8 & 9 Vict. c. 113, set out, ante, p. 296, as to such copies. 
 Where no other Act exists which renders a copy of any public book or docu- 
 ment admissible, a copy, purporting to be signed and certified by the officer to 
 whose custody the original is entrusted is admisible, 14 & 15 Vict. c. 99, s. 14. 
 By s. 13 also of that Act a certified copy of a conviction or acquittal of any in- 
 dictable ofi"ence is made evidence without the formal parts. See Appendix. 
 
 ' Notice should be given to admit copies, which if admitted will be evidence : 
 Dames v. Bavies, 9 C. & P. (38 E. C. L. R.) 252. 
 
 ' Therefore an unsealed issue roll not carried in, and bearing only an ink 
 stamp sold by stationers with the name of the court, and the number of the roll, 
 is not a rccoi'd, and is no evidence of the entry of a nolle prosequi as to one de- 
 fendant: Fagan v. Daivson, 4 M. & G. (43 E. C. L. R.) 711. 
 
 " Gilb. Law of Ev. 25 ; ante, p. 257 ; B. N. P. 228. An allegation in an 
 indictment that at the quarter sessions, &c., a bill of indictment was preferred 
 against A. B. and found by the grand jury, could only be proved by a caption 
 formally drawn up of record and by the production of the original or an 
 examined copy ; therefore the minutes of the clerk of the peace were inadmis- 
 sible, although no record had in fact been drawn up : R. v. Smith, 8 B. & C. 
 (15 E. C. L. R.) 341. But in The King v. Tooke, there (^ited, it was held that 
 the indictment, with the officer's notes, was during the same sitttings evidence 
 of an acquittal of one charged as a conspirator, Avithout having the record 
 formally drawn up ; see tit. Conspiracy. To prove the time of signing final 
 judgment, the day-book at the judgment-office, from which the judgments are 
 entered into the docket-books, is not evidence : Lee\. Meecock, 5 Esp. C. 177. 
 Proof of a writ of execution is not evidence of a judgment, except as against a 
 party to the cause: Ackicorth v. Kempe, Doug. 40; Besseyv. Windham, 6 Q. B. 
 (51 E. C. L. R.) 166 ; and see also Vol. II., tit. Sheriff.
 
 389 JUDICIAL DOCUMENTS. 
 
 a statement of the sentence embodied in the transcript of the record, 
 but required the j^ostea itself with the sentence endorsed to be brouglit 
 up, and granted a certiorari for that purpose/ A judgment of the 
 House of Lords may be proved bj means of a copy of the minute- 
 book of the House of Lords, for the minutes of the judgment are 
 the solemn judgment itself/ An averment that a commission has 
 been duly superseded, must be proved by a writ of supersedeas under 
 the great seal/ 
 
 A verdict is not evidence without producing the judgment, or an 
 examined copy, for perhaps the judgment was arrested, or a new 
 trial granted ;" ^ but the rule does not hold where the trial was upon 
 an issue out of Chancery, for there the decree was evidence that the 
 verdict was satisfactory/ But the production of the postea without 
 
 =^ R. V. Kiiiff and others, 7 Q. B. (53 E. C. L. R.) 782. 
 
 y Pe7- Lord Mansfield, Joiies v. Randall, Cowp. 17 ; Bac. Abr., Ev. F. 
 
 ^ Poynton v. Forster, 3 Camp. 60. 
 
 TiMonv. Walter, 1 Str. 161; Willes 367; B. N. P. 234; Hard. 118. But 
 formerly a verdict was admitted, although the judgment was arrested : Gilb. 
 Law of Ev. 31. 
 
 ^ Mongomery v. Clarice, B. N. P. 234 ; Bac. Abr., Ev. F. ; Hopkins v. Jones, 1 
 Barnard 243. Where a court of equity directs the second trial of an issue, the 
 verdict on the first is not admissible in evidence on the second : O' Conner v. 
 Malone, G CI. & F. 572. 
 
 ^ This principle was recognized in Rldgeli/ et al. v. Spencer, 2 Binn. 70, where 
 it was decided that a former verdict in the same cause which had been set aside 
 by the court was not evidence. So a verdict in a former suit, where the judg- 
 ment was reversed for error in fact, is not evidence on a new trial: Richardson^ s 
 Lessee v. Parsons, 1 Har. & J. 253 ; s. p., Greene v. Stone, Ibid. And a special 
 verdict found on a former trial betAveen the same parties, but which was set 
 aside because a fact was not sufficiently found, is not evidence on another trial : 
 Mahoney v. Ashton, 4 liar. & McIIen. 295. But in Pennsylvania, a verdict in a 
 former ejectment is evidence against the defendant, if he has acquiesced in it 
 by paying the costs and delivering possession, although no judgment has been 
 entered upon it: Sha'effer y. Kreitzer, 6 Binn. 430. In Tennessee, a verdict 
 cannot be given in evidence, unless it appears from the record that judgment 
 has been given upon it ; the court will not presume that judgment was entered : 
 Ragunv. Kennedy, 1 Overt. 94. So in Kentucky, a verdict without judgment 
 thereon is not admissible evidence : Donaldson v. Jude, 4 Bibb. 60. In Hunkle 
 v. Carrath, 1 Const. Rep. 471, the court of South Carolina, in a suit on a record 
 from an adjoining State, where the practice was said to be very loose, declared 
 that whenever they could find on the record of another State a single word or 
 act of the court from which a judgment might be inferred, they would give 
 effect to it; but that where the record showed a verdict only, an action could 
 not be maintained on it. In New York, a verdict in an action before a justice 
 of till' |i(;icc In (nidence without producing the judgment; for the justice can 
 iKiilii r arrcht judgment nor grant a new trial, but is bound to give judgment 
 on the verdict: Fetter \. Mulliner, 2 Johns. 181, M.
 
 JUDGMENTS, ETC., HOW PROVED. 390 
 
 *the judgment is evidence to show the fact that there was a r^onni 
 trial between the parties," and the amount of tlie damages ; 
 or as introductory of the evidence of a witness *sincc dead f r*QQi-| 
 or on a trial for perjury. So an allegation that an indict- 
 ment was preferred, and a true bill found, is not proved by the pro- 
 duction of the bill itself indorsed as a true bill, but should be proved 
 by the record made up ;* and the sentence of the court at the assizes 
 
 •= Str. 162 ; Barnard 243 ; R. v. Minns, 2 Esp. N. P. 253 ; see Harrap v. Brad- 
 shaw, 9 Pri. 359 ; Willes 367. In Fisher v. Kitchingman, Willes 367, it was held 
 that the postea and endorsement on it were admissible to prove allegations, that 
 a cause (which was proved aliunde to have existed) was Vjrought lo trial on an 
 issue joined, when a juror was withdrawn and the cause referred ; see Barnes 
 449; 7 Mod. 451. But the postea is not evidence to establish the fact proved by 
 the verdict: Fitton v. Walter, 1 Str. 162; in Garland v. Scoones, 2 Esp. C. 648, 
 indeed. Lord Kenyon is reported to have held that the mere production of the 
 postea was sufficient to establish a set-off for the defendant, to the extent of the 
 sum endorsed as the verdict in the cause ; and added, that in the case of issues 
 out of Chancery, the Chancellor always admitted the production of the postea 
 as conclusive evidence of the extent of the demand. But it is not usual to 
 enter up judgment in such a case, and the decree of the Court is proof that the 
 judgment stands in force : Montgomery v. Clarke, B. N. P. 234 ; Hopkins v. Jones 
 1 Barnard 243. In the case of Baskerville v. Brown, 2 Burr. 1229, which was 
 cited by the party offering the postea in Garland v. Scoones, the objection was, 
 that the defendant having recovered a verdict for 30?. against the plaintiff at the 
 same sittings, could not set off against the plaintiff's claim in the latter action 
 for IIZ., part of the sum for which he had obtained a verdict, without deducting 
 the 1 IZ. There the postea was offered, not by the defendant in the latter action to 
 establish his set-off, but by the plaintiff in the latter action, to show that the 
 plaintiff in the former action had taken a verdict for his whole debt. In Foster v. 
 Compton, 2 Stark. C. (3 E. C. L. R.) 364, it was doubted whether in such a case 
 the plaintiff was entitled to recover half the costs on production of the postea, 
 with the Master's allocatur, without producing the judgment. The postea is 
 admissible as introductory to prove what a witness, since dead, swore upon the 
 former trial : Fitton v. Walker, 1 Str. 162; B. N. P. 243; R. v. lies, and R. v. 
 Minns, there cited. — To prove the day on which the court sat for the trial at 
 Nisi Prius, the record itself must be produced : lliomas v. Ansley, 6 Esp. C. 80. 
 Where, however, there are proper materials, the postea may be indorsed in 
 court, nunc pro tunc: R. v. Hammond Page, 2 Esp. C. 650; and 6 Esp. C. 83. 
 But where a juror has been withdrawn, and the cause referred, such circum- 
 stances Avill not be allowed to be indorsed in court at the second trial: Ibid. 
 In London and Westminster it is not the practice, as in the country causes, for 
 the officer at the trial to indorse the postea ; and the postea, with a minute of 
 of the verdict indorsed by the officer, is evidence to show that the same cause 
 came on for trial: R. v. Broivne, Moo. & M. (22 E. C. L. R.) 315. 
 
 •» 1 Str. 162; Hardr. 118. 
 
 « Forter v. Cooper, 6 C. & P. (25 E. C. L. R.) 354 ; R. v. Bellamy, R. & M. 
 (21 E. C. L. R.) 171. So to prove that an appeal was heard, a record should be 
 24
 
 391 JUDICIAL DOCUMENTS. 
 
 coukl only be proved by tbe record, and neither the calendar signed 
 by tlie clerk of assize, nor the evidence of a person who heard the 
 sentence passed, is admissible to show that a prisoner under sentence 
 is in lawful custody/ Proof by the judgment-book is not sufficient, 
 although the record may not have been made up, and although the 
 party interested in the judgment is a stranger.^ But now, in order 
 to reduce the expense attendant upon the proof of the criminal pro- 
 ceedings, it is provided, by 14 & 15 Vict., c, 99, s. 13, " that when- 
 ever, in any proceeding whatever, it may be necessary to prove the 
 trial and conviction or acquittal of any person charged with any 
 indictable oifence, it shall not be necessary to produce the record of 
 the conviction or acquittal of such person, or a copy thereof, but it 
 shall be sufficient that it be certified or purport to be certified under 
 the hand of the clerk of the court, where such conviction or acquittal 
 r*3921 *^°^ place, or by the deputy of such clerk or other officer, 
 that the paper produced is a copy of the *record of the in- 
 dictment, trial, conviction and judgment or acquittal, as the case may 
 be, omitting the formal parts thereof. " 
 
 Proceedings in Chancery by bill and answer are not records, 
 because they are not precedents of justice, being decided according 
 to the justice and equity of each particular case ;' and therefore they 
 may themselves be given in evidence,'' independently of any decree. 
 But regularly, in order to prove the facts on which a decree professes 
 to be founded, the proceedings on which it is founded ought to be 
 read in evidence.' And it has been held at Nisi Prius that a plain- 
 tiff cannot give in evidence an order for an injunction obtained by 
 the defendant, restraining him from suing, without producing the 
 
 produced : R. v. Ward, 6 C. & P. (25 E. C. L. R.) 366 ; unless it be shown that 
 only a minute book is kept, as is usually the case, and no record is made up : 
 R. V. Yeovelei/, 8 Ad. & E. (35 E. C. L. R.) 806 ; but not as to the trial of an 
 indictment: R. v. Bellamy; R. v. Smith, 8 B. & C. (15 E. C. L. R.) 841. 
 
 ' R. V. Bourbon, 2 C. & K. (6i E. C. L. R.) 366. 
 
 8 Ayrey v. Davenport, 2 N. R. 474, and srtpra, note («). 
 
 ' Bac. Abr., Ev. F. 
 
 '' Bac. Abr., Ev. F. But the bill is no evidence of the facts stated in it, even 
 a;;ainst the party filing it, they being the mere suggestions of the pleader: 
 Boileau v. Rutlin, 2 Ex. 665; sqq post. 
 
 ' Com. Dig., tit. Evid. A. 4. Upon a question as to the right of the deputy 
 oyster-meters of .unloading, &c., all oysters brought within the port of London, 
 a decree in equity upon the same right was admitted in evidence, without put- 
 ting in the dcpoNitions, although referred to in the decree, but it was held that 
 when the decree had been put in, either party was entitled to read the deposi- 
 tions : Layburn v. Crisp, 4 M. & W. 320.
 
 PROBATE — LETTERS OF ADMINISTRATION. 392 
 
 bill and answer." A decretal order in paper may be read in proof 
 of the bill and answer," or without such proof, if they be recited in the 
 order," The *decree itself is proved either by means of an ex- r*oQo-| 
 emplification, an examined copy, or decretal order in paper.P 
 
 A sentence of the Spiritual Court of a divorce d mensd et thoro 
 has been received as evidence, without proving the libel and other 
 proceedings.'' But a decree of the Court of Arches for alimony is 
 not admissible, without proof of the proceedings in the suit ; and 
 where a suit is removed upon appeal to the Court of Arches, the 
 judgment of that court is not admissible, without showing that court 
 to be duly in possession of the suit, by producing the transcript of 
 the proceeding sent from the court below. '' The minute book of the 
 Ecclesiastical Court is evidence erf a decree for alimony pronounced 
 in that court, although no decree be drawn up : nothing in practice 
 being done with the minutes unless the alimony be not paid.^ 
 
 The probate of a will consists of a copy engrossed upon parch - 
 
 " Per Lord Abinger at N. P. ; Atwood v. Taylor and others, 1 M. & G. {39 E. 
 C. L. R.) 279; but see Blower v. Hollis, 1 Cr. & M. 393. 
 
 ° Com. Dig., Ev. C. 1. 
 
 ° Com. Dig., Ev. C. 1, Wheeler v. Lowth, there cited ; but see 1 Keb. 21. And 
 in the Wharton Peerage case, 12 CI. & F. 995, a decree grounded on the admis- 
 sion in the answers, and containing the whole substance of the bill and answer, 
 was admitted to pi'ove the identity of a person through whom the claimant 
 traced his descent. But see Atwood v. TaT/lor, 1 M. & G. (29 E. C. L. R.) 279, 
 supra. It has been said, that if a party wish to avail himself of the decree only, 
 and not of the answer, he may give the decree in evidence under the seal of the 
 court, and enrolled, without producing the answer ; and the opposite party will 
 be at liberty to show that the point in issue was not the same as the present 
 issue : B. N. P. 235. And as a general rule, the whole record ought to be pro- 
 duced : Com. Dig., Ev. A. 4. So in proof of a sentence in the Admiralty Court 
 on a libel and answer, or the judgment of a court baron, the proceedings ought 
 to be produced: Com. Dig., tit. Evidence, C. 1. Where the mere object is to 
 prove the fact that a decree was made, or made and reversed, and not to prove 
 the contents, proof of the previous proceedings is not necessary: Jonas v. Ran- 
 dall, Cowp. 17. And see per Bayley, B., in Blower v. Hollis, 1 Cr. & M. 396. 
 And in the case of an ancient decree, where the bill and answer have been lost, 
 the decree alone is admissible. 
 
 p Com Dig., Ev. C. 1 ; see Blower v. Hollis, 1 Cr. & M. 393. 
 
 ^ Stedman v. Gooch, 1 Esp. C. 4. Lord Kenyon, C. .J., and afterwards in 
 K. B. 
 
 ■■ Leake v. Marquis of Westmeath, 2 M. & Rob. 394. Per Tindal, C. J., ap- 
 parently overruling, Stedman v. Gooch. 
 
 ' Houliston V. Smyth, 2 C. & P. (12 E. C. L. R.) 25 ; see R. v. Yeuveley, 8 Ad. 
 & E. (35 E. C. L. R.) 806. The practice of the court is provable by oral evi- 
 dence : Beaurain v. Scott^ 3 Camp. 388.
 
 393 JUDICIAL DOCUMENTS. 
 
 ment, under the seal of the ordinary, with a certificate of its having 
 been duly proved.' A probate is therefore good evidence of the will, 
 as to the personal estate." 
 r^:OQi-| *When administration is granted by the Ecclesiastical 
 
 Court, it does not grant an exemplification, but only a cer- 
 tificate that administration was granted.* And therefore, when a 
 lessee pleads an assignment of a term from an administrator, such 
 certificate is good evidence.^ So would be the book of the Eccle- 
 siastical Court, wherein was entered the order for granting adminis- 
 tration.'' So the original book of acts, directing letters of adrainis- 
 tion to be granted with the Surrogate's fiat, is evidence of the 
 title of the party to whom administration is directed to be granted, 
 without producing the letters of a<3ministration themselves, notwith- 
 standing subsequent letters of administration granted to another, 
 the first not being recalled.* So an examined copy of the act-book, 
 stating that administration was granted to the defendant, is proof 
 that he was administrator, in an action against him, as such, with- 
 out notice to produce the letters of administration.'' So the act of 
 the court endorsed upon the will is as good evidence with respect to 
 the title of personalty as the probate itself." But although the pro- 
 bate of the will has been produced, the will itself cannot be read in 
 evidence upon the mere production of it by the ofl5cer of the Eccle- 
 |-^qQr-| siastical Court,*^ without some endorsement upon it for *the 
 
 purpose of authentication. In an action against an execu- 
 
 »• 3 Bac. Abr., tit. Executors ; B. N. P. 246. " B. N. P. 246. 
 
 ^ B. N. P. 246; Knapton v. Cross, 8 Geo. II., K. B. ; Bac. Abr., Ev. F. ; 1 
 Lev. 25. 
 
 y B. N. P. 246. 
 
 ' Ibid., and Elden v. Keddell, 8 East 187 ; Bac. Abr., Ev. F. 631 ; Polhill v. 
 Polhia, A. D. 1701. 
 
 " Elden v. Keddell, 8 East 187. 
 
 " Davis V. Williams, 13 p]ast 232; Kai/ v. Clarke, Ibid. 238. 
 
 ' Denn v. Barnard, Cowp. 595. Where by the practice of the Ecclesiastical 
 Court no book was kept, but a memorandum only endorsed or entered at the 
 foot of the original will by the officer of the court, it was held, that the pro- 
 duction of the will with such memorandum was sufficient evidence of the 
 executor's title ; and also, that an extsmplification of several letters of admin- 
 istration relating!; to the same estate on one parchment, with one 'M. stamp, 
 was sufficient: Doe v. GunniiKj, 2 Nev. & P. 260 ; 7 Ad. & E. (34 E. C. L. R.) 
 240. 
 
 "* It. v. Barnes, Stark. C. (2 E. C. L. R.) 243,j9er Raymond, C. J., in Coe v. 
 Westernham, Norfolk vSummer Assizes 1725 ; Sel. N. P., 11th ed. 814. " I can- 
 not allow the original will to prove property in the executor; the probate 
 must be produced, for perhaps the Ecclesiastical Court will not allow this to
 
 INFERIOR COURTS — MAGISTRATES. 395 
 
 tor for money had and received, after notice had been proved to pro- 
 duce the probate, it was hehJ that the original will produced by the 
 officer of the Ecclesiastical Court, and bearing the seal of that 
 court, and endorsed as the instrument on which the probate was 
 granted, with the value of the effects sworn to, was admissible as 
 secondary evidence.* Where a probate has been lost, an examined 
 copy is evidence to prove the party to be the executor, for the pro- 
 bate is an original document of a public nature.^ In such case it is 
 the practice of the Ecclesiastical Court to grant, not a second pro- 
 bate, but an exemplification only.^ 
 
 Although it be a general rule that the probate or ledger-book be 
 no evidence, except in relation to the personal estate, yet the ledger 
 may in some instances be secondary evidence as to a devise of real 
 estate ; as where, in an avowry for a rent-charge, the avowant could 
 not produce the will under which he claimed, that belonging to the 
 devisee of the land ; but producing the Ordinary's register of the 
 will, and proving former payments, it was holden to be sufficient 
 evidence against the plaintiff, who was devisee of the land charged. ** 
 Since the ledger-book is *a roll of court, it seems that a r:|=oq/:»-] 
 copy is admissible evidence.' Although a probate be no 
 evidence to prove the contents of a will, in order to establish a pedi- 
 gree, since it is but a copy, and the seal of the court does not prove 
 it to be a true copy, unless the suit relates only to the personal 
 estate ; yet the ledger-book, it seems, in such cases, is admissible evi- 
 dence, as being a roll of court, and made under the authority of the 
 Spiritual Court, to prove such a relation.*^ 
 
 be the testator's will. Besides, until probate, a man dies intestate; and if 
 his executor die before probate, his executor shall not be executor to the first 
 testator." 
 
 « Gorton v. Dyson, 1 B. & F. (5 E. C. L. R.) 219 ; and qii., whether it would 
 not be good original evidence. The probate-act book, containing an entry 
 that the will was proved and probate granted, was held to be the original and 
 primary evidence ; and, therefore, to be sufficient proof that the parties were 
 executors, although the probate was not produced, nor any excuse offered for 
 its non-production : Cox v. Aliingham, 1 Jac. 515 ; and see Garrell v. Lister, 1 
 Lev. 25. 
 
 •' Hoe V. Nelthorpe, 3 Salk. 154 ; R. v. Haines, Skinn. 584. In B. v. Haines, 
 Comb. 337, Holt, C. J., said, that a copy of a probate was not evidence, because 
 it was a copy of a copy. 
 
 s Shepherd v. Shor those, Str. 412. 
 
 » Ca. K. B. 375 ; B. N. P. 246. 
 
 ' B. N. P. 246, where it is said that the contrary had been often ruled, on the 
 mistaken ground that the ledger was a copy. 
 
 "^ B. N. P. 246 ; R. V. Ramsbottom, 1 Leach C. C. L. 25, in note.
 
 396 JUDICIAL DOCUMENTS. 
 
 To prove that the probate has been revoked, an entry of the revo- 
 cation in the book of the Prerogative Court, which is the record of 
 the proceedings of the court, is good evidence.' 
 
 A judgment of an inferior court, not of record, is usually estab- 
 lished by the production of the book containing the minutes of the 
 proceedings of the court from the proper places of deposit, proved 
 to be such by oral testimony. Copies of court-rolls, and of proceed- 
 ings in the Ecclesiastical and inferior Civil Courts, are also evidence, 
 since the originals are public documents.™ And it is said, that it 
 is not "usual for inferior courts to draw up their records in form, but 
 only short notes, copies of those short notes are good evidence." It 
 r*^Q71 'ipP^'^rs also, that in the *case of an inferior court, such as 
 a Court-baron, Hundred, or County Court, evidence should 
 be given of the proceedings," previous to the judgment, as well as of 
 the judgment itself,^ in order to show that the proceedings were 
 regular. In an action for a malicious arrest, on process out of the 
 Sheriff's Court in London, it was held that, in order to prove the 
 averment that the former suit was wholly ended, etc., it was suffi- 
 cient to show an entry in the minute-book of "withdrawn by the 
 
 1 Ibid. 
 
 "^ 12 Vin. Abr. A., b. 26, pi. 49. By the County Courts Act, 9 & 10 Vict. c. 
 95, s. Ill, the book kept by the clerk, or a copy of any entry in it purporting 
 to be signed and certified as a true copy by the clerk, and sealed with the seal 
 of the court, is declared to be evidence of the proceedings and their regularity. 
 
 "PerHale, in R. v. Haines, 12 Vin. Abr. A., b. 26, pi. 49 ; Comb. 337 ; Fisher 
 V. Lane, 2 B. L. 834, per Lord Tenterden ; R. v. Smith, 8 B. & C. (15 E. C. L. 
 R.) 341. But see Pitcher v. Rinter, 12 Vin. Abr. A., b. 48, contra; Dyson v. 
 Wood, 3 B. & C. (10 E. C. L. 11.) 449. As to orders of quarter sessions (not 
 being proceedings on indictments, see ante, p. 267), they may be proved by the 
 minute-book, where no other formal record is drawn up: R. v. Yeoveley, 8 Ad. 
 &. E. (35 E. C. L. R.) 806 ; R. v. Mortlock, 7 Q. B. (53 E. C. L. R.) 459 ; but it 
 should be shown that a more formal record is not kept: R. v. Ward, 6 C. & P. 
 (25 E. C. L. R.) 354; and see note (p). 
 
 " Com. Dig., tit Evidence, C. 3 ; Fisher v. Lane, 2 Bl. 834; Arundell v. White, 
 14 East 216. 
 
 P In Daicson v. Gregory, 7 Q. B. (53 E. C. L. R.) 766 : the judgment of a court 
 baron in a plea of debt was held to have been sufficiently proved by the court 
 book containing a minute of the judgment in tne form of a caption, the names 
 of the suitors, judge, and deputy steward, and the parties, with a memorandum 
 in these words: " Venire facias executed. Verdict for plaintiff and final judg- 
 ment entered up for debt, 4^5. 14s. 9rf. ; costs, lU. lOs. lOtZ. ; total, 21Z. 5s. Id. ;" 
 the deputy steward stating that he was present at the trial, and that it was not 
 UHual to draw up a more formal judgment, and a levari facias having issued re- 
 citing a judgment corresponding with the minute. As to the new county courts, 
 see supra, note {in).
 
 AWARDS — FOREIGN JUDGMENTS. 397 
 
 plaintiff's order," opposite to the entry of the plaint, and to prove 
 that it was the course of the court to make such an entry upon an 
 abandonment of the suit by a plaintiff.'' 
 
 It has been said that when actions are brought against justices of 
 the peace, they must show the regularity of their convictions, and 
 that the informations upon which their convictions were founded must 
 be produced and proved in court.' But it seems that the conviction 
 itself, when proved under the hand and seal (if necessary) of the 
 magistrate, is sufficient evidence that the judgment * which rt-qno-i 
 it recites was given. ^ In the case of Massey v. Johnson,*' it 
 was held that a magistrate might justify by virtue of a conviction of 
 the plaintiff as a vagrant, although the warrant of commitment 
 alleged that the plaintiff had been charged on the oath of T. S., and 
 in fact no charge had been made by T. S., but the defendant had 
 been convicted upon the information of another person, and although 
 the conviction itself was informal. But it was observed, that the 
 case would have assumed a very different shape if there had been no 
 information to ground the conviction." In the case of Gray v. Cook- 
 son and others,'^ it was held that the defendant having jurisdiction 
 over the subject-matter, was protected by a conviction drawn up after 
 the commencement of the action. 
 
 By 12 Vict. c. 11, s. 4, on an indictment against a person who 
 has been twice summarily convicted, under the Juvenile Offenders^ 
 and Malicious Injuries^ Acts, a copy of any such conviction certi- 
 fied by the proper officer of the General or Quarter Sessions to 
 which it shall have been returned, or proved to be a true copy, shall 
 h& sufficient evidence to prove such conviction. 
 
 •* Arundell v. White, 14 East 216 ; see Mackallei/'' s case, 9 Co. 69, where the 
 brief note of the plaint was as follows : " ss. J. M. & R. R. Debt 500Z., pledges 
 C. D. by R. F. serjeant," and was held to be sufficient to warrant the arrest. 
 
 '^ Str. 710. The discussion of this point in such actions, which is one of con- 
 siderable nicety, seems to be rendered unnecessary by the recent statute 11 & 
 12 Vict. c. 44, ante, p. 370, note {n). And see Vol. II., tit. Justices. 
 
 ' Per Holt, C. J., Fuller v. Foich, Holt 287 ; Garth. 346 ; Ilardr. 478. 
 
 ' 12 East 67. 
 
 " Per Le Blanc, J., Ibid. 
 
 ''16 East 13. A formal conviction may be drawn up at any time, unless a 
 defective one has been quashed, or the party discharged on habeas corpus : 
 Chancy v. Payne, 1 Q. B. (41 E. C. L. R.) 712 ; R. v. Turk, 10 Q. B. (59 E. C. L. 
 R.) 540 ; or perhaps a prior one has been filed at quarter sessions. And see 
 now 11 & 12 Vict. cc. 43 and 44. 
 
 y In England, 10 & 11 Vict. c. 82 ; in Ireland, 11 & 12 Vict. c. 59. 
 
 » 7 & S Geo. IV. c. 30: in Ireland, 9 Geo. IV. c. 56.
 
 398 JUDICIAL DOCUMENTS. 
 
 An Act of Parliament, in making certified copies evidence of the 
 proceedings of a court, does not take away the right of proof by the 
 production of the originah* 
 
 Where the parties have submitted themselves to the jurisdiction 
 of an arbitrator appointed by themselves, his decision, as has been 
 r*"qQn observed, will be conclusive upon the *subject-matter to the 
 
 ' extent of his authority.'' In order to establish his award or 
 
 judgment, it will be necessary to prove his authority by proof of 
 the submission bonds, or other written or parol authority, and to 
 prove the due making of the award. *= And the agreement of sub- 
 mission will not be proved, even by the rule of court under 9 & 10 
 Will. III., c. 15, s. 1. For the rule of court being an ex parte pro- 
 ceeding, and given by the statute merely for the purpose of enforc- 
 ing performance in a summary manner, the submission by agreement 
 ought to be proved like any other contract. "^ 
 
 A foreign judgment should be authenticated by an exemplification 
 or copy under the seal of the court.^ In such case it formerly was 
 not sufficient to prove the handwriting of the judge, without also 
 proving that the seal affixed to it is the seal of court.*' And if a 
 colonial court was proved to have no seal, other proof, as by the sig- 
 nature of the judge, was required to entitle it to credit.^ It is not 
 
 ' So held in reference to the Insolvent Act, 7 Geo. IV. c. 57 ; Northam v. La- 
 touche, 4 C, & P. (19 E. C. L. R.) 140. 
 
 ** Supra, p. 349 ; and see Doe v. Rosser, 3 East 11. 
 
 " See Vol. II., tit. Award. 
 
 ^ Berney v. Read, 7 Q. B. (53 E. C. L. R.) 79. 
 
 * By statute 14 & 15 Vict. c. 99, s. 7, judgments, decrees, ordars, and other 
 judicial proceedings of any court of justice, in any foreign state or British colony, 
 and all affidavits and other legal documents filed or deposited in any such court, 
 may be proved by a copy, but such copy must purport either to be sealed with 
 the seal of the foreign or colonial court, or if it have no seal, to be signed by the 
 judge, or one of the judges of the court, who shall attach to his signature a state- 
 ment on the copy that the court has no seal, and if the copy purport to be so 
 sealed or signed it shall be admitted without the proof of the seal, or signature, 
 or of the truth of statement attached to it, or of the judicial character of tlie per- 
 son signing. See Appendix. 
 
 f Henry v. Adcy, 3 East 221 ; Black v. Lord Braybrooke, 2 Stark. C. (3 E. C. 
 L. R.) 7 ; Appleton v. Lord Braybrooke, 2 Stark. C. (3 E. C. L. R.) 6 •, 9 Mod. 
 66 ; Alves v. Bunbnry, 4 Camp. 28 ; Buchanan v. Backer, 1 Camp. 63 ; Flindt 
 y. Atkins, 3 Camp. 215. If a colonial court jiossess a seal, it ought to be used, 
 although HO much worn as no longer to make any impression: Caven v. Stewart, 
 1 Stark. C. (2 E. C. L. R.) 525. 
 
 * Appleton v. Loi-d Braybrooke ; Alves v. Bunbnry, supra.
 
 J U D G M E N T — H OW REBUTTE D — R E V E R S E D. 400 
 
 sufficient to produce what purports to be a copy *untler the r^^Qn-i 
 seal of one who is proved to be clerk of the court.'' ' A 
 
 ^ Appleion v. Lord Braybrooke ; Alves v. Bunbicri/, supra. 
 
 ^ Copies of the proceedino;s op decrees of foreign courts or tribunals though 
 under the hands and seals of the officers of such courts, are not of themselves 
 evidence, but must be proved like other writings: Delafield v. Hand, 3 Johns- 
 310. A copy certified under the seal of the Secretary of State of the kingdom 
 in which the tribunal exists is inadmissible; it being neither a sworn copy, nor 
 unless it appear that the secretary has officially the custody of records of that 
 description, an office copy : Vandevoort v. Smith, 2 Caines 155 ; Church v. Hub- 
 bard, 2 Cranch 187. But the copy of a sentence of a foreign court of Admiralty, 
 under the seal of the court, signed by the actuary in the absence of the registrar, 
 accompanied with proof of the seal and signature, was held to be sufficiently 
 authenticated: Garden v. Columbian Ins. Co., 7 Johns. 514. And a copy cer- 
 tified under the seal of the court by the deputy registrar, -v^hose official charac- 
 ter is certified by the judge of the court and that of the judge by a notary public, 
 is admissible : Yeaton v. Fry, 5 Cranch 335. But it is not admissible without 
 the judge's certificate that he is the registrar: Spegail v. Perkins, 2 Root 274. 
 Foreign judgments are authenticated : 1st. By an exemplification under the 
 great seal. 2d. By a copy proved to be a true copy. 3d. By the certificate of 
 an officer authorized by law, which certificate must itself be properly authenti- 
 cated. These are the usual and most proper, if not the only modes of verifying 
 foreign judgments. But if they are all beyond the reach of the party, other 
 testimony, inferior in its nature, may be received. Per Marshall, C. J., Church 
 V. Hubbard, ubi sup. If the decrees of the colonies of a foreign country are trans- 
 mitted to the seat of its government, and registered in the department of state, 
 a certificate of that fact, under the great seal, with a copy of the decree, authen- 
 ticated in the same manner, would be sufficient prima facie evidence. Ibid. 
 See Munford v. Bourne, Anthon's N. P. 25. In Thompson v. Stewart, 3 Conn. 
 171, it was held that the seal of a foreign court of admiralty need not be proved. 
 The seals of such courts, in cases under the laws of nations, are admitted without 
 further authentication, as they are courts of the whole civilized world, and every 
 person interested is a party. Admitted by counsel on both sides in Church v. 
 Hubbard, ubi sup. ; Gilb. Ev. 22, 23 ; 1 Rob. 296. The public seal of a State 
 or kingdom is noticed judicially by the tribunals of other States, and the record 
 of a judgment authenticated by such seal, need not be accompanied with any 
 certificate of its being a copy under the signature of any officer of the court 
 rendering the judgment: Griswold v. Pitcairn, 2 Conn. 85 ; Anon., 9 Mod. 66 ; 
 see also United States v. Johns, 4 Dall. 416. But when a civil war rages in a 
 foreign nation, and one part separates itself from the old established government 
 and erects itself into a distinct government, the courts of the Union must view 
 such newly-constituted government as it is viewed by the legislative and execu- 
 tive departments of the government of the United States and before it is by them 
 recognized as an independent government, its seal cannot be allowed to prove 
 itself; but it may be proved by such testimony as the nature of the case admits : 
 United States v. Palmer et al., 3 Wheat. 616 ; The Estrella, 4 Wheat. 298. What 
 is sufficient evidence to authenticate, in the courts of this country, the sentence 
 or act of a foreign tribunal or government, after a destruction of such govern- 
 ment by revolution or conquest; see Hadjield v. Jameson, 2 Munf. 53. M.
 
 400 JUDICIAL DOCUMENTS. 
 
 divorce under the seal of a foreign court is not evidence without call- 
 ing persons to prove the law of the country.' 
 
 A judgment, decree, or sentence, may be impeached by proof, 
 first, that it never existed, or was void ah initio ;•* secondly, that it 
 •was fraudulent and covinous ; thirdly, that it has been revoked. 
 First, that it never existed, as by showing that the alleged probate 
 was forged •,^ that the testator had bona notahilia in another diocese ;^ 
 that the testator is still living ;™ but not that the will was forged," 
 or that the testator was non eomijos," or that another is executor,"" 
 for this would be to falsify the judgment. ^ Of course it never 
 existed as a valid sentence, if the court had not •jurisdiction to enter 
 into the matter.'' In trespass, where the plaintiff had been con- 
 r*401"l ^''^*^*^ *upon four convictions, for carrying on his trade, 
 upon the same day, it was held to be a sufficient answer to 
 three of such convictions, that the justices had no jurisdiction, al- 
 though the convictions had not been quashed.^ An ecclesiastical 
 judge is not liable to an action, though he excommunicate a party 
 erroneously, but it is otherwise if he excommunicate not having 
 
 * Ganer v. Lady Lanesborongh, Peake's C. 17. See Fremoult v. Dedire, 1 P. 
 Wms. 431 ; Henri/ v. Adaj, 3 East 221. 
 
 ^ No appeal need be made against an order where the justices wanted jurisdic- 
 tion ; unless the object be to bring an action of trespass against them, and the 
 plaintiff does not wish to quash it in Q. B. See ante, p. 370, note {n) ; see Vol. 
 II., tit. Settlement ; or against the proceedings of commissioners, in respect to 
 matters as to which they had no authority: Attorney- General v. Lord Hotham, 
 
 I Turn. & Russ. 219. 
 
 >= T. Ray. 404-6 ; 1 Sid. 359. 
 
 ' B. N. P. 247 ; Noel v. Wells, 1 Sid. 359 ; 1 Lev. 235, per Buller, J. ; 3 T. R. 
 131 ; 5 Rep. 30; Stokes v. Bate, 5 B. & C. (11 E. C. L. R.) 491 ; and see Whyte 
 V. Rose, 3 Q. B. (43 E. C. L. R.) 493 ; Lysons v. Barrow, 2 Bing. N. C. (29 E. C. 
 L. R.) 480 ; Huthwaite v. Phaire, 1 M. k G. (39 E. C. L. R.) 159. 
 
 ■" Allen V. Dundas, 3 T. R. 129. 
 
 ° But upon an indictment for forging a will, it may be proved that the will 
 was a forgery, notwithstanding the probate : R. v. Buttery and Macnamara, R. 
 & R. C. C. 342. Indeed, this may be proved in any legal proceeding, civil as 
 well as criminal, for any purpose but that of impeaching the title of the executor, 
 upon which the decision of the ecclesiastical court is conclusive. In the case of 
 an inferior court not of record, the party may show that the cause of action did 
 not arise within the jurisdiction : Herbert v. Cooke, Willes 36, note [a). 
 
 " Marriot v. Marriot, 1 Str. 671. 
 
 P StirtuKjs case, 20 How. St. Tr, 473. 
 
 'I 1 Lev. 235 ; 2 Keb. 337. 
 
 ' R. V. Bolton, 1 Q. B. (41 E. C. L. R.) 66. 
 
 ■ Crepps V. Durden, Cowp. 640. But see, as to an action against the justices, 
 
 II & 12 Vict. c. 44, ante, p. 370, note (/;)•
 
 JUDGMENT — HOW REBUTTED — REVERSED. 401 
 
 jurisdiction.' So it may be shoAvn that a person is not within the 
 scope of the bankrupt laws, although the commissioners have de- 
 clared him to be bankrupt." But nothing whicli might have been 
 insisted upon bj way of appeal against a sentence can be urged in 
 answer to the evidence supplied by the sentence ;" and, therefore, 
 where upon an indictment for assaulting a gentleman commoner, and 
 expelling him from the gardens of a college, the defendant relied 
 upon a sentence of expulsion, it was held to be no answer, that a 
 sufficient number of members had not concurred in the ser)tence. 
 So it may be shown that commissioners having *especial r:): iaqt 
 poAver by an inclosur^ act to make an award have not pur- 
 sued that power. ^ Secondly, that it was fraudulent or covinous, for 
 strangers ought not to be bound by such a proceeding.'' Accord- 
 ingly, in The Duchess of Kiyigston s case, it was resolved that, even 
 admitting the sentence in the Spiritual Court to be conclusive, still 
 the effect might be removed by showing collusion.* And in a much 
 later case, it was held, that a sentence of divorce from the first mar- 
 
 ' Ackerley v. Parkinson, 3 M. & S. 411. See also Moody v. Thurston, 1 Str. 
 481; Vol. II., tit. Justices. Brown v. BuUen, 1 Doug. 4U7 ; Lord Radnor v. 
 Reeve, 2 B. & P. 391. 
 
 " In strictness, the reason why the adjudication of the commissioners in such 
 cases is not obligatory, is, that it is merely an ex parte proceeding, and partakes 
 no more of the nature of a judgment, than the finding a bill of indictment by a 
 grand jury. Unless, however, it be contested within certain periods, the an- 
 nouncement in the Oazette is now rendered conclusive in certain cases, by stat. 
 12 & 13 Vict. c. 106, s. 233. 
 
 ^ R. V. Grundon, Cowp. 315. The case was put on the same footing with a 
 decree in the Admiralty Court, which must stand till reversed. Note, the court 
 doubted whether Mr. Crawford, the prosecutor, was a member of Queen's College, 
 but held, that even if he were, the sentence was not examinable but by appeal to 
 the visitor, and that the King's courts could not interfere. As to the general 
 principle that a sentence by the members of a college, or by the visitor on appeal, 
 is conclusive, see Phillips v. Bury, Skin. 447 ; 2 T. R. 346 ; Dr. Patrick'' s case, 
 1 Lev. 65; Dr. Wedrington'' s case, 1 Lev. 23; Case of New Coll., 2 Lev. 14; 
 Reg. V. Governors of Darlington School, 6 Q. B. (51 E. C. L. R.) 082. 
 
 y Rex V. Washbrooke, 4 B. & C. (10 E. C. L. R.) 732. For the further con- 
 sideration of the subject of jurisdiction, especially as regards the operation of a 
 judgment or sentence to protect those who had jurisdiction to pronounce it, see 
 Vol. II., tit. Justices. 
 
 ^ Meddowcroft v. Huguenin, 4 Moo. P. C. R. 386. Thus, to a sci. fa. against 
 a shareholder in a company, the defendant may plead that the judgment against 
 the company was obtained by fraud : Philipson v. Earl of Egremont, 6 Q. B. 
 (51 E. C. L. R.) 587; Bradley \. Eyre, 11 M. & W. 432; Same v. Urquhart, 
 Ibid. 456. 
 
 " 20 How. St. Tr. 355 ; 1 Ves. 159 ; And. 392.
 
 402 JUDICIAL DOCUMENTS. 
 
 riage, obtained in Scotland by fraud on the part of the husband, 
 would be no bar to a prosecution for bigamy.^ In an action for 
 assault and wounding the plaintiff, it may be shown that an acquittal 
 upon an indictment charging the injury as a felonious wounding, was 
 fraudulent and collusive/ So where an executor pleads judgments 
 recovered, the plaintiff may reply that they are covinous.'' So a 
 stranger to a fine or recovery may avoid it by showing collusion.* 
 So if it appear on the face of the proceedings that the party to be 
 affected by a foreign judgment, or by process of foreign attachment, 
 was never summoned, or never had notice of the proceeding.^ But 
 r*4031 ^^ ^^ ^ general rule that a person who was a *party to the 
 proceeding,^ or who might have been a party*" to it, cannot 
 show collusion in order to repel the judgment. Thirdly, that the 
 judgment has been reversed,' as that letters of administration have 
 been revoked,'' or the probate repealed.' But an appeal"" or writ of 
 
 ^ Martin Lolh/s case, Russ. & Ry. C. C. L. 237. 
 
 <= Crosby v. Leng, 12 East 409. 
 
 ^ Lloyd Y. Maddox, Moore 917; Trethetoy v. Acklaiid, 2 Wms. Saund. 48, et 
 not. 
 
 «11 Str. 262. 
 
 ^Buchanan v. Rucker, 9 East 192 ; Cavau v. Stewart, 1 Stark. C. (2 E. C. L. R.) 
 525; Bruce Y. Wait, 1 M. & G. (39 E. C. L. R.) 1; Franldand v. McGusty, 1 
 Knapp, P. C. 274 ; Ferguson v. Malion, 11 Ad. & E. (39 E. C. L. R.) 179 ; Hen- 
 derson V. Henderson, 6 Q. B. (51 E. C. L. R.) 298 ; Bank of Australasia y . Mas, 
 20 L. J., Q. B. 284; and ante, p. 356, et seq. It is against natural justice to 
 convict a man without a summons : R. v. Cotton, 1 Sess. C. 179 ; 1 Bott. 486 ; 1 
 Burn's J. 254, 23d ed. ; Docy. Gartham, 1 Bing. (8 E. C. L. R.) 357; E. v. 
 Gaskin, 8 T. R. 309 ; Williams, v. Lord Bagot, 3 B. & C. (10 E. C. L. R.) 772 ; 
 in error. The husband need not be summoned in case of a criminal proceeding 
 against the wife: R. v. Ellen Taylor, 3 Burr. 1681. In R. v. Clegg, Str. 475, an 
 order of bastardy made at sessions set out no summons, but the court said they 
 would presume one. 
 
 « Prtidhum v. Phillips, Str. 2 ; Ambler 763 ; Bessy v. Windham, 6 Q. B. (51 E. 
 C. L. R.) 166; but see Smith v. Nicholls, 5 Bing. N. C. (35 E. C. L. R.) 222; 
 Phillipson v. F.arl of Egremont, 6 Q. B. (51 E. C. L. R.) 587. 
 
 ^Mayo V. Broione, 11 St. Tr. 213. 
 
 ' Where a judgment by default in an inferior court has been removed by 
 habeas, the judgment below is not evidence against the defendant: Boltings v. 
 Firby, 9 B. & C. (17 E. C. L. R.) 762. So where, on a case reserved, the judges 
 held a former indictment, on which the party had been convicted, bad: R. v. 
 Reader, 4 C. & P. (19 E. C. L. R.) 245. 
 
 k Sid. 359. 
 
 '3 Lev. 135; but note, such repeal would not invalidate a payment to the 
 executor : Allen v. Dundas, 3 T. R. 1 25. 
 
 " Bird's case, 2 Den. C. C. 94.
 
 INQUISITIONS. 403 
 
 error" against a sentence is no answer to the sentence ; and an at- 
 tainder standing unreversed, although founded upon an insufficient 
 indictment, is valid and pleadable in bar." Other evidence to im- 
 peach the truth of a record is inadmissible ; it is not competent to 
 a party to prove that a verdict was improperly entered by mistake. •" 
 Thus far of judgments, decrees, and verdicts. The second r;(: inj^-i 
 *class into which judicial documents are divided consists of 
 inquisitions, depositions, and examinations taken in the course of 
 a judicial proceeding. Such inquests as are of a public nature, and 
 taken under competent authority, to ascertain a matter of public 
 interest, are, upon principles already announced,'' admissible in 
 evidence against all the world. They are very analogous to adjudi- 
 cations in rem, being made on behalf of the public ; no one is pro- 
 perly a stranger to them ; and all who can be affected by them usually 
 have the power of contesting them. In general, where property is 
 vested in the Crown upon an inquest of office, by a coroner, escheator"" 
 or other officer of the Crown, the parties affected by the inquest have 
 a right of traverse reserved to them, or they may proceed by nions- 
 trans de droit. Upon a finding of felo de se, the executor or adminis- 
 trator may remove it into the Court of King's Bench, and traverse 
 it ;* for it would be hard that he should be concluded by an inquisi- 
 tion, which is nothing more than an inquest of office, taken behind 
 his back.* By the express provisions of many statutes, inquests of 
 office before escheators are required to be held in a public open place, 
 and every one is to be heard in evidence." And by the provisions of 
 
 ° Hervei/s case, 11 St. Tr. 207, 212 ; Ann. 11 ; Doe dem. Tatham v. Wright, 10 
 A. &E. (37 E. C. L. K.) 763. 
 
 4 Co. 45 ; 2 Hale 251 ; Price v. Oldjield, And. 222 ; 2 Sid. 359. An execution 
 on an erroneous judgment is good till reversed: 1 Ld. Rayni. 546. An accessory 
 cannot take advantage of error in the judgment against the principal: 1 Hale 
 625 ; R. V. Baldwin, 3 Camp. 265 ; and see Holmes v. Walsh, 7 T. R. 458. 
 Judgment against the husband for treason, not reversed, sufficient to deprive 
 the wife of her dower : per Lawrence, J., Ibid. 
 
 P Reed v. Jackson, 1 East 355. 
 
 1 Ante, p. 286, et seq., and see the cases there. 
 
 "■ See as to the writ of escheat, the stat. 1 Hen. VIII. c. 8. The inquisition 
 on such a writ is evidence to show, according to the finding of the jury, that 
 the party died without heirs. 
 
 * 1 Hale, P. C. 416-17-, Barclay's case, Easter, 45 E. 3; but Ld. Coke held 
 otherwise, 8 Inst. 55. Every thing done under it is traversable : Garnett v. 
 Ferrand, 6 B. & C. (13 E. C. L. R.) 611. 
 
 ' According to Lord Hale, 1 P. 0. 416, 417 ; East's P. C. 389. 
 
 " 34 Edw. III., c. 13 ; 36 Edw. IIL, c. 13 ; 1 Hen. VIII., c. 8 ; 2 & 3 Edw. VI., 
 c. 8 ; 3 Comm. 260.
 
 404 JUDICIAL DOCUMENTS. 
 
 these statutes the remedy by traverse and monstrans de JroiYhas been 
 much enlarged/ Upon the same principle, upon the execution of a 
 writ of extent, one who claims property in the goods which are in 
 possession of the defendant may assert his claim before the sheriff, 
 r^Ar\n-\ and cross-examine the witness *adduced by the prosecutor/ 
 But still it seems that the finding of a fugam fecit by the 
 coroner's inquisition against one who occasioned the death of another, 
 is conclusive,^ although a jury upon the trial find otherwise ;" yet, 
 upon principle, the traverse ought to be admitted in that case as well 
 as upon the finding a party feJo de se.^ 
 
 Since then the usual effect of such inquest of office is to vest the 
 property in the Crown, reserving to the party affected, in most in- 
 stances, a right of traverse, the consequence seems to be, that such 
 inquisition, standing undisputed and unreversed, would be conclusive 
 as to the right of property, not only as between any claimant and the 
 Crown, but also, as in the case of Toomes v. Utherington," between 
 any other parties. The plaintiff in that case sued an administrator of 
 Toomes, upon a judgment recovered by the intestate against the de- 
 fendant ; the defendant pleaded that the intestate was felo de se, 
 whereby the judgment was forfeited ; the plaintiff replied a subse- 
 quent statute of pardon, to which the defendant demurred, and the 
 judgment was given for the defendant ; because by the finding of the 
 inquest the debt and damages were vested in the king, and the statute 
 contained no words of restitution. 
 
 Upon an issue devisavit vel non, the question was, whether the in- 
 quest of the coroner, svper visum corporis, finding the testator luna- 
 tic, was admissible ; and the court was divided upon the point;'* two 
 r*inrn ^^ ^^^ j^'^^s deeming *it to be inadmissible, because the par- 
 ties were not the same, the one being a civil and the other a 
 criminal proceeding. But in that case the dissentient judges ex- 
 
 "^ 2 Comm. 260. 
 
 y It. V. Bickley, 3 Price 454 ; and the sheriff havino; refused to permit such in- 
 terrof!;atories to be put, the court set aside the inquisition. 
 
 ' 1 Wms. Saund. 3G2, n. 1 ; sed vide 6 B. & C. (13 E. C. L. R.) 627 ; supra, 
 note {b). 
 
 ' Ibid. The jury cannot now be char<fed to find this, 7 & 8 Geo. IV., c. 28, 
 s. 5. 
 
 " See 1 Saund. 302, n. 1. 
 
 •= 1 Saund. 361. 
 
 '' The inquest was read at the instance of Pratt, J., although he was of 
 Of)inion that it was not, in strictness, admissible ; because it was an issue out of 
 Chancery, and merely to inform the conscience of the Chancellor : Str. 68.
 
 INQUISITIONS. 406 
 
 pre^^sod their opinion that an inquhitio post mortem would be admis- 
 sible, because it was a civil proceeding, and because of the antiquity 
 of it, or as reputation to prove a pedigree;^ and the chief justice 
 cited Lord Derby's case, where an inquisitio post 77iortem had been 
 admitted/ 
 
 In Sergeson v. Seahj,^ Lord Ilardwicke said that inquisitions of 
 lunacy, inquisitions post mortem, and others, were always admissible, 
 though not conclusive. In the case of Burridge v. The Earl of Essex, ^ 
 an inquisition post mortem, setting out the tenor of a deed, was held 
 to be evidence of the deed. 
 
 An inquisition of lunacy may be considered to be in the nature of 
 a proceeding in rem, since it is instituted by the direction of the 
 Lord Chancellor, to whom, by special authority from the king, the 
 custody of idiots and lunatics is intrusted,' to inquire into the state of 
 the party's mind. In the case of Faidder v. Sdk,^ Lord Ellenborough, 
 upon a plea of nan est factum to a declaration on a bond, admitted 
 proof of an inquisition taken on a commission of lunacy, against the 
 obligor (to whom the defendant was executor,) upon which he had 
 been found to be a lunatic; but held that it was by no means con- 
 clusive. So such an *inquisition has been received as evi- 
 
 . . . . r*4071 
 
 dence in a criminal case, to show the insanity of the •- -• 
 
 prisoner.' 
 
 So other inquisitions taken under proper authority in matters of 
 public concern are admissible in evidence. Thus in the case of The 
 Queen v. Sutton and others,"^ upon an indictment against the defendant 
 for the non-repair of Kelham Bridge (under the alleged obligation 
 ratione tenura'), the defendants tendered in evidence a presentment 
 against the vill of Kelham in the reign of Edward the Third, upon 
 
 " Jones V. White, Str. 68. 
 
 ^ And see B. N. P. 228 ; and per Hardwicke, C, in Sii' Hugh Smithson'' s case, 
 Ibid. 
 
 8 2 Atkins 412. And in accordance with this opinion, from Faidder v. >S'<7A-, 
 3 Camp. 126 : 1 Collins 396 ; 2 Madd. Ch. 576 ; Frank v. Smith, 2 M. & Rob. 
 315 ; The Irish Society v. Bishop of Derry, 12 CI. & Fin. 666 ; it seems now to 
 be settled that such inquisitions, though evidence, are not conclusive. 
 
 '' 2 Ld. Raym. 1292. An inquisitio post mortem, and traverse thereon, is 
 evidence, although it be voidable : Leighton v. Leighton, Stra. 308 ; Ibid. 1151. 
 
 ' 3 P. Wms. 108 ; and see now the statutes 5 & 6 Vict. c. 84, and 8 & 9 Vict. 
 c. 100. 
 
 " 3 Camp. 126 ; see Dane v. Lady Kirkioall, 8 C. & P. (34 E. C. L. R.) 683. 
 
 ' R. V. Bowler, C. B., June, 1812; cor. Le Blanc and Gibbs, Js. See Vol. II., 
 tit. Will. 
 
 "8 Ad. &E. (35 E. C. L. R.) 516.
 
 407 JUDICIAL DOCUMENTS. 
 
 Avhicli the defendants had been acquitted, the jury upon that present- 
 ment finding, in answer to questions put by the court, that the bri(]ge 
 had been built within sixty years of report of men of the county 
 passing that way ; and as to the question, who of right ought to re- 
 pair the bridge, having answered that they were ignorant; and it 
 was held that the presentment and finding, which had been removed 
 into Chancery, together with a grant of pontage for the repairs of 
 the bridge, soon afterwards granted by the Crown, were admissible 
 in evidence on the part of the defendants to negative the alleged im- 
 memorial liability to repair the bridge. From the judgment in this 
 case, the court appear to have been of opinion that the inquest was 
 admissible as a public proceeding, in which the jury might properly 
 inquire, not only whether the persons charged were, but also in gen- 
 eral who, and whether any one, was liable to repairs. An inquisition 
 likewise taken under the stat. 4 Edw. I., was received, although the 
 commission could not be found." 
 
 But where an inquisition has been taken without legal authority 
 
 it is inadmissible ;" as in Latkow v. * Earner,^ \i\iQve it was 
 
 L J held that an inquisition by the sheriff to ascertain to whom 
 
 the goods seized under an execution against A. belonged, it was not 
 
 evidence for A. in an action brought by A. against the sheriff. 
 
 " Rowe V. Brenton, 8 B. & C. (15 E. C. L. R.) 747 ; and see Baj/lei/ v. JVi/lie, 
 6 Esp. C. 85; Vicar of KelUngton v. Trin. Cull., 1 Wils. 170. 
 
 « In Evans v. Taylor, 7 Ad. & E. (34 E. C. L. R.) ''17, a report of a survey by 
 the deputy surveyer of the duchy of Lancaster, stating that the tenants of a 
 particular manor had at a Court of Survey fenced its boundaries, is not a pro- 
 ceeding authorized like that in Rowe v. Brenton, by the statute Extenta Manerii, 
 4 Edw. I., and therefore it is not receivable to prove the boundaries. A pre- 
 sentment by the jury under a commission from Oliver Cromwell, apparently as 
 a private individual, is not evidence: Duke of Beaufort v. Smith, 4 Exch. 450. 
 But the finding of a jury summoned under a commission from the Duchy Court 
 of Lancaster to ascertain the boundary between two manors is admissible as a 
 verdict, and as reputation to prove such boundary : Brisco v. Lomax, 8 Ad. & 
 E. (35 E. C. L. R.) 198. But in The Queen v. Lee, 10 Ad. & E. (37 E. C. L. R.) 
 398, the Court of Queen's Bench intimated a doubt whether presentments by 
 sewers juries touching liabilities to repair within certain lands could be admitted ; 
 and see ante, p. 287. In general when the inquisition is of general concern- 
 ment, the commission under which it was held need not be proved : B. N. P. 
 22.S : otherwise the commission must be produced : Evans v. Taylor, supra, with 
 the same exception as in so many other cases of ancient transactions : Mayor 
 of Beverley v. Craven, 2 M. & Rob. 140; Bayley v. Wylie, 6 Esp. 85; ante, p. 
 289 ; and see Uardcastle v. Sclaier, 2 Gwill. 787 ; Audcrton v. Magawley, 3 Bro. 
 P. C. 588. 
 
 '' 2 H. IJl. 4.;7 ; Glossop v. Pole, 3 M. & S. 175; Leiyhton v. Leiyhton, I Sho. 
 i»(J8, For this is an inquiry by the sheriff merely for his own information.
 
 DEPOSITIONS, WHEN ADMISSIBLE. 409 
 
 Depositions'" of witnesses/ although made under *the sane- ^ ,„^^ 
 
 . . r*4091 
 
 tion of an oath, are not in general evidence as to the facts •- -^ 
 
 which they contain, unless the party to be affected by them has 
 cross-examined the deponents, or has been legally called upon, and 
 had the opportunity to do so ; for otherwise one of the great and 
 ordinary tests of truth would be wanting." Evidence of this kind is 
 weak and is not admissible, unless it be the best evidence which can 
 be procured, and also unless the party against whom it is offered, or 
 the party under whom he claims, has had the power of cross-examina- 
 tion, and has been legally called on to examine ; which must be 
 proved by showing that he was a party to the proceeding ; that it 
 was a judicial proceeding ; and that he did cross-examine, or might 
 have done so. There are some exceptions where the proceeding is of 
 a public nature, or the evidence falls within the general scope of the 
 rule as to reputation. 
 
 It is an incontrovertible rule, that when the witness himself may 
 be produced, his deposition cannot be read, for it is not the best evi- 
 
 ' As to depositions taken before Justices, see 11 & 12 Vict. c. 42, s. 17, and 
 Vol. II., tit. Depositions. And as to examinations and depositions taken under 
 a commission, see post, p. 423, et seq. 
 
 ■■ The oral testimony of a witness on a former trial stands upon the same 
 grounds : B. N. P. 242 ; Sherwiii v. Clarges, 12 Mod. 343 : Pi/ke v. Crouch, 1 
 Ld. Raym. 730. In Wright v. Doe dem. Tatham, 1 Ad. & E. (28 E. C. L. R.) 
 19, the lessor of the plaintiff had filed a bill against the defendant, and an issue 
 at law had been directed upon the question whether A. had devised his lands 
 by the will now in dispute. At the trial of the issue, B., one of the attesting 
 witnesses, was examined by Wright and cross-examined by Tatham. B. having 
 died before the trial of the second action, his evidence given on the former trial 
 was held admissible on the second, although other plaintiffs were joined with 
 Wright in the first, and Tatham was the only lessor in the second. In this case 
 a rule of court had been made by consent that the notes of the evidence at the 
 former trial should be read as to such witnesses as were dead or beyond sea. 
 The court held that it was not open to dispute that the evidence of B. should be 
 read, his death having been proved. They also held that it was equal in quality 
 to that of the surviving attesting witness. So where the parties and the title 
 were the same, although the lands sought to be recovt'red were different, the testi- 
 mony of a witness on a former trial was received at a subsequent trial : Doe v. 
 Derhxj, 1 Ad. & E. (28 E. C. L. R.) 791. But identity of title and of one of the 
 parties is not sufiicient, the other party not being the same or privy to him : 
 Ibid. 783. It seems that the testimony must be proved (unless by agreement) 
 by the judges' notes, or by a person present who can prove what the witness 
 said : Mayor of Doncaster v. Day, 3 Taunt. 262 ; Strutt v. Bovingdon, 5 Esp. 56 ; 
 R. v. Joliffe, 4 T. R. 290. 
 
 ° Ante, p. 34. 
 
 25
 
 409 JUDICIAL DOCUMENTS. 
 
 dence.' But the deposition of a witness may be read, not only where 
 it appears that the Avitness is actually dead, but in all cases where he 
 is dead for all purposes of evidence ; as where diligent search has 
 *been made for him and he cannot be found," where he 
 L J resides in a place beyond the jurisdiction of the court," or 
 where he has become lunatic or attainted/ 
 
 It has even been said, that if a witness, having been subpoenaed, 
 falls sick by the way, his deposition may be read." So if the wit- 
 ness had been kept out of the way by the adversary,* or labor under 
 any infirmity which incapacitates him as a witness.'' So the deposi- 
 tion of a party absent in Ireland has been admitted.*^ According 
 
 .- .^ -. *to the practice of the Court of Chancery in directins: an 
 r 4111 • • -/ o 
 
 L -■ issue at law, an order is made that the depositions of wit- 
 
 * Benson y. Olive, Stra. 920 ; Godb. 193; Howard y. Tremaine, Salk. 278; 4 
 Mod. 146 ; Tilleys case, 280 ; Hardr. 232 ; 5 Mod. 163, 277 ; T. Raym. 336 ; Fry 
 V. Wood, 1 Atk. 45 ; Coker v. Farewell, 2 P. Wms. 563 ; B. N. P. 239. 
 
 " Godb. 326 ; Law of Ev. 106 ; Benson v. Olive, Stra. 920. 
 
 ^ Lord Altham v. Earl of Anglesey, Gilb. Eq. Cas. 16, 18 ; Rep. temp. Holt 
 736. 
 
 y The circumstance of attainder, if the witness were accessible to process, 
 would not now, since the change in the law, render his deposition admissible. 
 It has also been decided that a lunatic may be examined: R. v. Hill, 20 L. J., 
 M. C. 222. But proof of temporary insanity will suffice to let in the deposi- 
 tions : R. y. Marshall, Car. & M. (41 E. C. L. R.) 147; and it would seem, 
 that unless the lunacy was of such a character as to render the witness incapa- 
 ble of giving evidence, his deposition also would not be admissible. In R. v. 
 Hogg, 6 C. & P. (25 E. C. L. R.) 176, the deposition of an old and bedridden 
 woman was allowed to be read, there being no probability that she would be 
 able to attend at a future assizes. In criminal cases formerly the courts would not 
 admit the deposition of a witness in evidence, whilst any reasonable hope re- 
 mained that the witness might be able to attend on some future opportunity : 
 R. V. Savage, 5 C. & P. (24 E. C. L. R.) 143 ; R. v. Marshall, Car. & M. (41 E. 
 C. L. 11.) 147. And in a civil case, see per Lord Ellenborough, Harrison v. 
 Blades, 6 Camp. 457 ; but by stat. 11 & 12 Vict. c. 42, the depositions are made 
 evidence, whenever the witness by reason of illness cannot attend the trial, see 
 Vol. XL, tit. Depositions. 
 
 ^ Mod. 283. 284; Ld. Raym. 730; P. Wms. 288-9 ; Bac. Abr., Ev. F. ; Vin. 
 Abr., A. b. 31, pi. 10; 1 Ves. & Beames 22 ; Jones v. Jones, 1 Cox's Cas. 184. 
 
 " Green v. Gatewick, B. N. P. 243; R. v. Gutteridge, 9 C. & P. (38 E. C. L. 
 R.)471. 
 
 »> B. N. P. 239; Kinsman v. Crooke, Ld. Raym. 1166; Fry v. Wood, 1 Atk. 
 145, So it has been said, if the witness be unable to travel. But see the case 
 of Harrison v. Blades, 3 Camp. 57 ; R. v. Wihhaw, Car. & M. (41 E. C. L, 
 R.) 145. 
 
 *= Lord Altham v. Lord Anglesea, 11 Mod. 210; Gilb. Ecj. R. 16, 18; but see 
 Tr. per Puis, 7th ed. 385, 386, where a distinction is taken between Ireland, and 
 a place out of the King's dominions.
 
 DEPOSITIONS, WHEN ADMISSIBLE. 411 
 
 nesses shall be read on the trial, on satisfactory proof that they 
 were unable to attend in person."^ The principal object of the 
 order is convenience in dispensing with the ordinary preparatory 
 proof.* Where depositions had been taken in perpetuam rei memo- 
 riam, and a witness afterwards became a party to the suit, his de- 
 position would not formerly be read, for the intent of the deposition 
 was to perpetuate testimony in case of the death of the witness.^ And 
 so it was held, where a deponent became interested after his exami- 
 nation in a Court of Equity, but was no party to the suit;^ and yet 
 before the recent alteration of the law, if the witness became in- 
 terested by operation of law, the case, with respect to the question 
 of evidence, was the same as if he had become blind or lunatic ; 
 and in equity depositions have been admitted under such circum- 
 stances.'' Where a witness has been examined on interrogatories 
 by consent, on account of his expected absence, yet if he be not 
 absent at the time of the trial, his deposition cannot be read ;' but 
 it is not necessary that he should be actually *on his voyage v-.. .^n-, 
 when the trial comes on ; if he be on board and ready to ^ ^ 
 sail, or if the ship has been compelled to put back"" upon a tempo- 
 rary exigency, the deposition is still evidence. Reasonable proof 
 must be adduced by the party who offers the deposition in evidence, 
 to show the necessity of resorting to it.^ The statement of the de- 
 
 ^ Corbet V. Corbet^ 1 Yes. & IJeames 340. 
 
 ® Palmer v. Lord Aylesbury^ 15 Ves. 176. 
 
 f Tilley's case, Lord Raym. 1008 ; 1 Salk. 286 ; Holcroft v. Smith, Eq. Cas. 
 Ab. 224 ; Trin. 1702 ; Vin. Abr., Ev. A., b. 31, pi. 42 ; Baker v. Lord Fairfax, 
 Str. 101. Where a plaintiflF in equity appointed a witness his executor, who 
 revived the suit, his deposition was ordered to be read on such trial: Andrews 
 V. Beauchamp, 7 Sim. 65. But now that the party might be examined, under 
 14 & 15 Vict. c. 99, this difficulty would not arise. 
 
 « Baker v. Lord Fairfax, Str. 101. 
 
 ^ 2 Ves. sen. 42; Glynn v. Bank of England ; Holcroft v. /Smi77t, Eq. Cas. Ab. 
 224 ; Goss V. Tracy, 1 P. Wms. 287 ; 2 Vern. 472 ; Haws v. Hand, 2 Atk. 615. 
 In Glynn v. Bank of England, 2 Ves. sen. 42, Lord Hardwicke said such evi- 
 dence was allowable on good reason, for the evidence was to be taken as it stood 
 at the time of the witness's examination, which should not be set aside unless it 
 could be supplied by other evidence. 
 
 ' Proctor V. Lainson, 7 C. & P. (32 E. C. L. R.) 629 ; 2 Salk. 691 ; 2 Tidd's 
 Pr. 9th ed. 811. For it is an implied condition that the attendance of the wit- 
 ness is not practicable. 
 
 ^ Fonsick v. Agar, 6 Esp. 92. See Ward v. Wells, 1 Taunt. 461 ; Varicas v. 
 French, 2 Car. & K. (61 E. C. L. R.) 1000. See the statutes and decisions on 
 them as to such examinations, post, p. 429. 
 
 ' Proctor V. Lainson, 7 C. & P. (32 E. C. L. R.) 629. It has been held to be
 
 412 JUDICIAL DOCUMENTS. 
 
 position itself is insufficient.™ Upon an application by the defend- 
 ant, a trial for misdemeanor has been postponed upon his consent- 
 ing, by writing under his own hand, to the examination of a witness 
 for the Crown upon interrogatories." 
 
 Secondly^ a deposition is not admissible unless the parties be the 
 same;" for a stranger to the former suit had no opportunity to cross- 
 examine, and therefore cannot be affected by the deposition ;'' and he 
 cannot use them against one who was a party, because he could not 
 have been prejudiced by them, and therefore, for want of mutuality, 
 ought not to take advantage of them.'^ 
 
 *Accordingly on an appeal of murder an appellant could 
 L ^^ not give in evidence an indictment for the same murder, and 
 what a witness had sworn upon the trial ;"■ as the evidence on the 
 indictment was not evidence for the appellant neither was it for the 
 
 insufficient to show that the witness was a seafaring man and that several 
 months ago he belonged to a vessel lying in the River Thames, without show- 
 ing the nature of the vessel, or whither she was bound : Falconer v. Hanson^ 1 
 Camp. 171. 
 
 "" Proctor V. Lainson, 7 C. &. P. (31 E. C. L. R.) 629. But answers to inqui- 
 ries are evidence to satisfy the judge : Burt v. Walker, 4 B. & A. (6 E. C. L. R.) 
 697 ; Wyatt v. Bateman, 7 Car. & P. (32 E. C. L. R.) 586. 
 
 " R. V. Morphew, 2 M. & S. 602. The same thing was done upon the trial of 
 Mr. Hastings ; see 2 M. & S. 603. 
 
 " They are admissible against the Crown ; as in the Baron de Bode's case, 8 
 Q. B. (55 E. C. L. R.) 208, where they were taken under a commission to per- 
 petuate testimony filed against the Attorney-General, and on a petition of right 
 they were admitted on the trial of a traverse of the inquisition taken on that 
 petition. 
 
 P B. N. P. 242: Cook v. Fountain, 1 Vern. 413 -, 2 Rol. Abr. 679; Hob. 155. 
 
 1 Bac. Abr., Ev. F. ; Rushworth v. Pembroke, Hardr. 472; Gilb. L. of Ev. 55 ; 
 but see Vin. Abr., Ev. A., b. 31, pi. 47. This principle seems to have been ex- 
 tended to a case where the party against whom the depositions were offered in 
 evidence had himself read the depositions in a former cause. Thus on an issue 
 from Chancery between A. and B. it was held, that depositions produced by B. 
 in Chancery in a suit of C. against B., were admissible ; Atkins v. Humphreys^ 
 1 M. &'Rob. 523 ; Brickcll v. Hvlse, 7 Ad. & E. (34 E. C. L. R ) 456. But see 
 Phill. on Evid. 571. 8th ed. Where on a former trial of the title to the same 
 property on an ejectment by the same lessors of the plaintiff against a different 
 defendant, a deed was given in evidence by the latter, the limitations in which 
 were stated in court by the defendant's counsel, a copy of the shorthand-writer's 
 notes of that statement was rejected in another ejectment by the same lessors of 
 tlio plaintiff against a different defendant, and it was questioned whether it would 
 liave been receival)le, had the parties ))een the same: Doe dem. Gilbert v. Ross, 
 7 -M. .t W. 102. 
 
 ^ 1 Sid. 235: 2 Haw. 430; 2 Roll's Rep. 460; 2 Keb. 384; Bac. Abr., Ev. F.
 
 DEPOSITIONS, WHEN ADMISSIBLE. 413 
 
 appellee.' A. preferred his bill against B., and B. exhibited his 
 bill touching the matter against A. and 0. ; on a trial at law it was 
 held, that C. could not use the depositions in the same cauSe between 
 A. and B., but that the whole must be tried as 7'es nova} The de- 
 positions or evidence of a witness in one cause cannot be evidence in 
 another, where the verdict would be inadmissible ; for the oath can- 
 not be given in evidence without first giving the verdict in evidence;" 
 for otherwise it would not appear that the oath was more than a 
 voluntary affidavit. But it is not necessary that the depositions 
 should have been made, or the evidence given in the same proceed- 
 ing, provided the parties be the same ; in the Court of Chancery, 
 depositions in one cause are frequently read in another; and in 
 courts of law, the evidence which the witness gave on a former trial 
 
 may be *read in a subsequent one, after his death, or while 
 
 1 . r*4141 
 
 he continues abroad." •- -^ 
 
 But although the parties are the same, yet if the same matters 
 were not in issue in the former cause, the depositions, it is said, are 
 not evidence ;'' this rule, however, at all events, does not apply to 
 cases where depositions are offered against those who were not par- 
 ties to the former suit, as matter of reputation, for there the very 
 
 ^ B. N. P. 243 ; 1 Sid. 325. 
 
 »Gilb. Law of Evid. 108; Hard. 472; 12 Vin. Abr. 109, pi. 24; Atkins v. 
 Humphreys, 1 M. & Rob. 523; Brickell v. Hidse, 7 Ad. & E. (34 E. C. L. R.) 
 456. 
 
 ° B. N. P. 242 ; 1 Sid. 325 ; but see 253, note [i). It seems to be sufficient to 
 give ih.Q postea in evidence. 
 
 "" Per Lord Kenyon, 4 T. R. 290 ; Pike v. Crouch, Lord Raym. 730 ; Patton v. 
 Walter, Str. 162; Green v. Gatewick, B. N. P. 243; 12 Mod. 319; Barn. 213, 
 243; Lord Palmerstnn's case, cited by Lord Kenyon, 4 T. R. 290, where upon a 
 trial at bar it was held, on all hands, that what Lord Palmerston swore upon a 
 former trial was evidence, the witness having died in the interim; but the evidence 
 was ultimately rejected because the witness could not give the words, but only 
 the fact. In chancery, depositions taken thirty years ago have been admitted 
 to be read, although the parties were not the same ; because they related to the 
 same land, and the tenants were parties to it, and the plaintiif 's title did not 
 then appear : B. N. P. 240 ; Chan. Cas. 73 ; Bac. Abr., Ev. F. ; Eq. Ca. Ab. 627. 
 Formerly depositions in perpetuam rei memoriam were not published till after 
 the death of the witnesses, which was attended with inconvenience, because 
 they swore with impunity : Bac. Abr., Ev. F. ; and see 7 Ad. & E. (34 E. C. L. 
 R.) 458 ; Tufton v. Whitmore, 12 Ad. & E. (40 E. C. L. R.) 307. Voluntary 
 oaths, too, are now prohibited by 5 & 6 AVill. IV. c. 62. By this Act a decla- 
 ration in a prescribed form is substituted in many cases for the affidavits 
 formerly in use. 
 
 ^ Allibone v. The Attorney-General, Vin. Abr., Ev. A., b. 31, pi. 45.
 
 414 JUDICIAL DOCUMENTS. 
 
 circumstance that the same matter was litigated, has been urged as 
 an objection.* 
 
 Neither does the objection apply in criminal cases; a deposition 
 made upon a particular charge may frequently be read upon the trial 
 of the prisoner for another. A deposition taken upon a charge of 
 assault and robbery may be read upon a trial for murder, the trans- 
 action being the same.** 
 
 r*4.1 ^1 *Depositions in a former cause cannot in general be read 
 against one who does not claim under the party with whom 
 such depositions were taken ; but in equity, if a legatee bring a bill 
 against the executor, and prove assets, it is said that another legatee, 
 although no party, may have the benefit of those depositions ;" at 
 law they may be read where the defendant claims in privity Avith the 
 defendant in the former suit.*^ 
 
 Thirdli/, in order to admit a deposition, or the oral testimony of a 
 witness in a former cause, it is necessary to show that such a case or 
 proceeding legally existed, for otherwise it would not appear that 
 the deposition was anything more than a mere voluntary affidavit of 
 a stranger.® It seems to be a general rule, that the depositions or 
 evidence in a former cause are never admissible in evidence, unless 
 the verdict or judgment would in itself be evidence.^ 
 
 * Infra. 
 
 " E. V. Smith, 2 Starkie's C. (3 E. C. L. R.) 208 ; and see R. v. Edmunds, G 
 Car. & P. (25 E. C. L. R.) 164 ; Radburn's case, I Leach 457 ; and Vol. II., tit. 
 Depositions. 
 
 " Cokey. Fountain, Tern. 415; 12 Vin. Abr. 160, pi. 27. A party executed 
 a power of appointing funds in settlement in favor of children ; after the death 
 of one, the mother and the survivors executed a voluntary conveyance in favor 
 of children of the deceased, and subsequently conveyed the premises to a pur- 
 chaser, who filed a bill to set aside the voluntary conveyance, and a bill was 
 also filed to establish the sale, by a partner of the purchaser, alleging the con- 
 sideration to have been paid in part with his money, and a suit was afterwords 
 filed against the two latter parties to establish the conveyance, and set aside 
 the sale as fraudulent and collusive, in which suit an issue was directed as to 
 the bona fides of the sale, and payment of the consideration ; held, that on the 
 trial the depositions taken in the first suit by the purchaser were properly re- 
 jected : Humphreys v. Pensam, 1 Myl, & Cr. 580. 
 
 Earl of Bath v. Battersea, 5 Mod. 9 ; 12 Vin. Abr. Ill, pi. 31. And see 1 
 Ad. & E. (28 E. C. L. R.) 788, 790. 
 
 * B. N. P. 242. Sherwin v. Claryes, 12 Mod. 353. There is also this objec- 
 tion to it, that its statements had not the penal sanction of an oath. 
 
 ' B. N. P. 242. Because giving the verdict, &c., in evidence is a preparatory 
 step ; but it seems that the production of the postea would be sufficient to war- 
 rant the reception of such evidence, since it would show the fact that a trial
 
 DEPOSITIONS, WHEN ADMISSIBLE. 416 
 
 *It is also a rule, that no extra-judicial deposition can be r^j^i^-i 
 used in evidence ; for the party was not bound to take any 
 notice of the proceeding. Accordingly, upon an indictment for a 
 libel, depositions before a magistrate Avere not admitted in evidence, 
 as they would have been under the statutes of Philip & Mary, in 
 cases of felony. ^ Nor are they so in any case where the proceeding 
 is coram non judice ;'* as, where a voluntary aflBdavit is made before 
 the Master,' such an affidavit would not be evidence, unless the ad- 
 mission of the party who made it would be evidence.'' So if the 
 bill has been dismissed on account of the irregularity of the com- 
 plaint,^ as if the depositions are taken in a revived suit, where a bill 
 of revivor does not lie," for in such a case there is no complaint be- 
 fore the court in which depositions can regularly be taken. But if 
 the bill be dismissed merely because the matter is not proper for a 
 decree in equity, although within the jurisdiction of the court, the 
 depositions may be read in another cause between the same parties." 
 Where the proceeding is merely voidable, it seems that the deposi- 
 tions may be read; but it is otherwise where it is absolutely void." 
 But in some instances, where depositions have been irregularly taken, 
 a Court of Equity will order that they shall stand. ^ Voluntary 
 depositions before justices cannot be read on an indictment for trea- 
 son, or upon the trial *of an appeal or in a civil action,'' for 
 they are extra-judicial. It was held, that depositions in the '- ^ 
 
 Court of Wards were not evidence in the King's Bench to prove the 
 same title." 
 
 It has frequently been held, that depositions taken in a Spiritual 
 
 was had between the same parties. It should seem, however, that where a new 
 trial is granted, and one of the witnesses dies in the meantime, his evidence on 
 the former trial would be admissible, although the verdict itself would be in- 
 admissible : R. V. Joliffe, 4 T. R. 290. 
 
 8 R. V. Paine, 5 Mod. 12; Vin. Abr., Ev. A., b. 31. This was before 7 Geo. 
 IV. c. 64, which extended to misdemeanors. And see 5 & 6 Will. IV. c. 62, 
 which prohibits voluntary oaths. 
 
 ^ Stock v. Denew, Vin. Abr., Ev. A., b. 31, pi. 16. 
 
 ' Sty. 446 ; Mai/ v. May, K. B. at Bar ; Bac. Abr., Ev. F. * Ibid. 
 
 ' 1 Ch. Ca. 185 ; Backhouse v. Middleton, Gilb. Law of Ev. 56. 
 
 "" 1 Ch. Ca. 175. 
 
 ° S7nith V. Veale, Ld. Raym. 735 ; Ch. Ca. 175 ; 3 Ch. Rep. 72 ; 12 Vin. Abr. 
 109, pi. 15 ; Noijder v. Peacock, Ibid. 112, pi. 41. 
 
 ° Leighton v. Leighton, Stra. 308. 
 
 P Murray v. Wise, cited Stra. 308. 
 
 •J 2 Hale's P. C. 286 ; Ld. Raym. 730 ; and see sup. n. [g). 
 
 ' 2 Roll. R. 212.
 
 417 JUDICIAL DOCUMENTS. 
 
 Court cannot be used, even hj consent,' in a court of common law,' 
 because it is not a court of record. Yet the same objection applies 
 to depositions in Chancery. In Breedon v. Gill,'' Lord Holt expressed 
 an opinion that depositions before commissioners of excise might, if 
 the witnesss died, be afterwards read before the commissioners of 
 appeals. And depositions under the statutes of Philip & Mary, and 
 7 Geo. IV. c. 64, were read upon trials for felony, although they 
 were not of record. And it is to be observed, that these statutes do 
 not expressly direct that these depositions shall be evidence ; they 
 were, indeed, originally intended for a different purpose, and they be- 
 come evidence as authorized proceedings in the course of the same 
 prosecution,^ In Welsh's case/ Lord Hale assigns two reasons why, 
 upon an indictment for a forcible marriage with Mrs. Puckring, the 
 deposition of Mrs. Puckring before commissioners appointed to dis- 
 solve the marriage, if they thought fit, should not be read ; first, 
 because it Avas a proceeding according to the civil law, in a civil 
 cause; secondly, because she was interested; and does not hint that 
 it was an objection that the court was not a court of record. With 
 respect to depositions in the Ecclesiastical Court, C. B. Gilbert lays 
 r*4.181 ^^ down that they may be read when taken in a cause over 
 *which they have jurisdiction, as far as relates to that cause, 
 since they are hiAvful oaths, and a man may be indicted for violation 
 of them.^ When, indeed, they are taken in a cause over which they 
 have no authority, as where the realty is concerned, they clearly are 
 not admissible.'^ 
 
 Fourthly, a deposition is not evidence against one who had not the 
 power or liberty to cross examine the witness, or does not claim under 
 one who had that power.** 
 
 * March 120, sed qucere. 
 
 * Litt. R. 167 ; B. N. P. 242 ; 2 Roll. Abr. 679 ; Bac. Abr., Ev. F. ; 2 Hale 
 285 ; March 120 ; 1 Haw. c. 42 ; Vin. Abr., Ev. A., b. 31. The power of taking 
 depositions has since been enlarged. See Vol. II., tit. Depositions. 
 
 " Ld. Raym. 222. 
 
 ^ See 2 Hale 284. In the statute 11 & 12 Vict. c. 42, s. 17, there is an express 
 provision to that effect, which was not contained in the prior Acts. 
 y 2 Hale 285. 
 ^ Gillj. Law of Ev. 60. 
 
 * Gilb. Law of Ev. GO ; 2 Roll. Abr. 079 ; Litt. R. 167 ; March 120; and see 
 post, p. 4.'54. 
 
 " Hardr. 472, 215; 2 Jones 164; Wils. 214, 215; Hob. 155; 2 Roll. Abr. 679; 
 1 Vern. 413. Where barrack commissioners, acting upon 47 Geo. III. c. 1, in 
 taking public account, examined witnesses, and put their depositions in writing; 
 and Jill inroriiiatioii having been filed against the defendant relative to certain
 
 DEPOSITIONS, WHEN ADMISSIBLE. 418 
 
 Accordingly depositions taken before commissioners of bankrupt, 
 being ex parte, were not evidence previously to tbe statutes*' by 
 whicb they are made evidence in *particular cases. "^ In r:c4-|Q-| 
 Chancery the witness was examined de bene esse ; an answer 
 was put in ; but the witness was so ill, that he could not be cross- 
 examined, and before the end of three weeks he died, and all the 
 judges held that the deposition was not evidence.® So if before the 
 coming in of the answer, the defendant not being in contempt, the 
 
 contracts, the matters were referred to arbitration ; held, that the arbitrators 
 could not receive such depositions, having been taken without the defendant 
 having had an opportunity of being present, or of cross-examining the witnesses : 
 Attorn aj- General v. Davison^ 1 McCl. & Y. 169. The examination of a witness 
 taken before commissioners on an inquiry cannot be read as evidence on a petition 
 to expunge the proof of a creditor who was not a party to that inquiry : Ex 2)arte 
 Coles, Buck 242 ; Cooke, B. L. .552, 8th ed. ; Ex imrte Camjjbell, 2 Rose 51. 
 On a charge of felony, the magistrate's clerk examined the witnesses before the 
 arrival of the magistrates and the prisoner, and after their arrival they were 
 read over to the witnesses in the presence of the magistrates and the prisoner, 
 and the latter was asked whether he had any questions to put to any of them ; 
 Piatt, B., reprobated the practice : R. v. Johnson, 2 C. & K. (61 E. C. L. R.) 
 394. 
 
 « 5 Geo. II. c. 30, s. 41 ; 49 Geo. III. c. 121, s. 10. The statute 6 Geo. IV. c. 
 86, ss. 90, 92, made depositions in bankruptcy, in certain cases, conclusive ; and 
 2 & 3 Will. IV. c. 114, s. 7, made such depositions evidence in certain cases, the 
 deponents being dead. The statute 12 & 13 A''ict. c. 106. which repeals these 
 Acts, provides (s. 242) that in the event of the death of any witness deposing 
 to the petitioning creditor's debt, the trading, or act of bankruptcy under any 
 bankruptcy theretofore or thereafter, or under any petition for arrangement, 
 his deposition purporting to be sealed with the seal of the court, or a copy of it 
 purporting to be so sealed shall be received as evidence of the matters con- 
 tained in it. See also the stat. 59 Geo. III. c. 12, as to the examinations of 
 prisoners touching their settlements-, and the Mercantile Marine Act, post, p. 
 427. 
 
 ^ 1 Lev. 180 ; Ld. Raym. 220 ; T. Jones 53 ; Janson v. Wilson, Doug. 257 ; 
 Bowles V. Langioorthij, 5 T. R. 366 ; 2 Roll. Abr. 679 ; B. N. P. 242. The de- 
 positions of deceased witnesses taken before commissioners of bankrupt, on the 
 opening of the commission, and enrolled by the assignees afterwards appointed, 
 were held not to be evidence against the assignees in an action by the bankrupt ; 
 the assignees in such a case having had no opportunity of cross-examining the 
 witnesses at a meeting which was strictly private : Chambers v. Bernasconi, 1 
 C, M. & R. 347. 
 
 ® Brown''s case, Hardr. 315 ; Button v. Colt, Sir T. Raym. 335 ; but see Ch. R. 
 90; Vin. Abr., Ev. A., b. 31, pi. 8. A deposition is not admissible before answer 
 put in, or the party is in contempt, unless he had the opportunity of cross- 
 examining : Cazenove v. Vaughan, 1 M. & S. 4. So if the witness be examined 
 without service of the order so to do : Mulvany v. Dillon, 1 B. & B. (5 E. C. L. 
 R.) 413.
 
 419 JUDICIAL DOCUMENTS. 
 
 witness die/ Where, however, the defendant is in contempt for 
 refusing to answer, the objection ceases, for it was his own fault 
 that he did not cross-examine the witnesses.^ And in general, 
 where the party has had an opportunity to cross-examine in the 
 course of a regular legal proceeding, and has neglected *to 
 L "^ -J do so, the case is the same in effect as if he had cross- 
 examined.'' 
 
 Evidence given by a witness on the trial of an issue directed by 
 the Court of Chancery is evidence in an action upon the trial of an 
 ejectment after the death of the witness against the lessor of the 
 plaintiff, Avho was the plaintiff in equity.' For the lessor had the 
 power of objecting to the competency of the witness, and the same 
 right of cross-examination, and of calling witnesses to discredit or 
 contradict the testimony of the witness. 
 
 Though depositions taken de bene esse, before the answer of the 
 defendant, are not, as we have seen, admissible in a court of law, 
 since they are taken before issue joined'' yet a Court of Equity will 
 sometimes direct them to be read ;' but such an order is not binding 
 
 '^Hardr. 215; 2 Jon. 164: 2 Wils. 563; for there the defendant had not an 
 opportunity of cross-examining. In such case the party, it is said, may apply 
 to the Court of Chancery that the deposition may be read, and if the court see 
 cause they will order it ; and this oi'der, it is said, will bind the parties to assent, 
 but will not bind the Court of Nisi Prius : Gilb. Law of Ev. 57 ; B, N. P. 240 ; 
 2 Jon. 164. 
 
 ^ Gilb. Law of Ev. 56 ; and see Cazenove v. Vaughan, 1 M. & S. 4 ; the obser- 
 vations of Le Blanc, J., Ibid. : B. N. P. 240 ; Com. Dig., Ev. C. 4. 
 
 ** Cazenove v. Vaughan, 1 M. & S. 4. The plaintiffs filed a bill in Chancery 
 for the examination of a witness de bene esse, and the defendant did not put in 
 any answer. The plaintiffs gave notice to the defendants of an order obtained 
 from the court for the examination, and of the questions intended to be put, 
 and examined the witness the same evening, who set off the next day and never 
 returned. The plaintiffs obtained a further order for publication of the deposi- 
 tion, in order that it might be read at the trial, and the deposition was admitted 
 in evidence. And see M'Combie v. Anton, 6 M. & G. (46 E. C. L. R.) 27 ; Gilb. 
 Law of Ev. 62, 64, 4th ed. ; 4 Mod. 146 ; Howard v. Tremaine, Show. 363, semb. 
 contra, 1 P. Wms. 414 ; Copeland v. Stanton, B. N. P. 240 ; Com. Dig., Ev. C. 4. 
 
 ' Wright v. Doe d. Tatham, 1 Ad. & E. (28 E. C. L. B.) 3. Note, that in the 
 suit in equity other persons besides the defendant in the ejectment wei*e co- 
 defendants. So if the parties and title in dispute are the same, though the 
 lands be different: Doe v. Earl of Derby, 1 A. &. E. (28 E. C. L. R.) 791. 
 
 * 2 Jones 164; Vin. Abr., A. b. 31, pi. 12, 22; Dutton's case, Sir. T. Raym. 
 335; llardr. 315; 2 P. Wms. 161; IMIn. Hoddesdon, 12 Vin. Abr., Ev. A., 
 b. 31. 
 
 '2 Jones 164.
 
 DEPOSITIONS, WHEN ADMISSIBLE. 420 
 
 in a court of law,"" Where, however, upon a bill to perpetuate testi- 
 mony, the defendant was in contempt, and would not answer, and 
 the plaintiff had a commission, and examined witnesses de bene esse, 
 and the defendant joined in the *commission, and cross-ex- ^^ ^^^_, 
 
 . . . r 4211 
 
 arained some of the witnesses produced for the plaintiff, and ^ J 
 before the coming in of the answer the witness died, it was held, 
 after much debate, that the depositions were admissible between the 
 parties on trial at law, for otherwise a bill to perpetuate testimony 
 would be of no use." There the defendant joined in the commission, 
 and cross-examined, but the principle seems to extend to all cases 
 where the defendant refuses to answer,** for otherwise he might wait 
 till all the witnesses were dead, having in the meantime prevented 
 his antagonist from perpetuating their testimony. ^ 
 
 Depositions relating to a custom, or prescription, or pedigree, 
 where reputation would be evidence, are admissible against strangers; 
 for as the traditionary declarations of persons dead would be admis- 
 sible, a fortiori their declarations on oath are so.*^ Where, however, 
 depositions relate precisely to the same issue,"" and are made post 
 litem motam, they cannot be received.^ On the trial of a question 
 between the lord of a manor and a copyholder, as to a custom insisted 
 upon by the lord 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 to be equal to two years' improved value, it 
 was held, that depositions in an ancient suit, instituted against a 
 former lord of the 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 r*_i9.o-i 
 a reasonable fine, to be set by the lord or his steward, and 
 which depositions were made by witnesses on behalf of the copyholder, 
 were admissible evidence for the lord, as depositions of persons stand- 
 ing lyari jure with the new copyholders ; it was not proved that the 
 
 "" Ibid., supra, note {/). 
 
 " Show. 263, 264 ; Carth. 265 ; 4 Mod. 147 ; Salk. 278 ; 12 Vin. Abr., A. b. 
 
 ° But great stress was laid upon that fact by Grey, J., Carth. 265. 
 
 P See Broum's case, Hardr. 315 ; Vin. Abr., Ev. A., b. 31, pi. 23 ; Button's case, 
 T. Raym. 335 ; A''in. Abr., Ev. A., b. 31, pi. 12; and the observations in Cazenove 
 v. Vaughan, 1 M. & S. 4. 
 
 1 B. N. P. 230 ; Cort v. Birkbeck, Doug. 219 ; and see the expressions of Lord 
 Ellenborough in Freeman v. Phillips, 4 M. & S. 491. 
 
 "■ Case of the Berkeley Peerage, 4 Camp. 401 ; case of the Banbury Peerage, 
 infra, p. 439, note (c) ; R. v. Cotton, 3 Camp. 444 ; 4 M. & S. 486. 
 
 ^ Freeman v. Phillips, 4 M. & S. 486.
 
 422 JUDICIAL DOCUMENTS. 
 
 persons making such depositions were copyholders, but it appeared 
 from the depositions themselves that they were such, or that they 
 were persons acquainted with the custom of the manor. And it was 
 held that their depositions, supposing them to be admissible only as 
 declarations of persons deceased, were not inadmissible on account of 
 their having been made post litem motam, because the custom was 
 not in controversy in the former suit as in the latter.' Where, how- 
 ever, the Us mota was on the very point, the depositions and declara- 
 tions of persons in respect of it would not be evidence, since it is 
 doubtful whether the deposition of witnesses selected and brought 
 forward to support one side of the question, and who partake of the 
 feelings and prejudices belonging to that side, can be depended upon 
 as those of fair and impartial witnesses." And depositions in a suit 
 claiming a ferry both ways, made after interlocutory orders for pre- 
 serving the status quo until a final decision could be had, which 
 decision was never made, were held inadmissible as evidence of 
 reputation to prove a distinct ferry each way." 
 
 In the case of Tooker v. The Duke of Beaufort, the depositions, as 
 well as the return to the Exchequer under a commission to inquire 
 whether the Prior of St. Swithin or the Crown was seised of certain 
 lands upon the dissolution of the priory, were held to be admissible 
 r*42^1 ^^ evidence, and *the depositions seem to have been consid- 
 ered as standing on the same footing with the return itself/ 
 
 A deposition between any parties is evidence to contradict a 
 witness,^ but it is not evidence to support the testimony of a 
 witness.* 
 
 ' Freeman v. Phillips^ 4 M. & S. 486. But see Banhury Peerage case, 2 Sel. 
 N. P. 763, infra, p. 439, where the depositions, although purporting therein to 
 be made by relations, were held not admissible without proving aliunde the 
 fact of the relationship of the deponents ; and see Davies v. Morgan, 1 C. & J. 
 591 ; Monkton v. Attorney-General, 2 Russ. & M. 161. 
 
 " See the observations of Bayley, J., 4 M. & S. 495. 
 
 " Pirn V. Curell, 6 M. & W. 234. y Burr. 146. 
 
 "■ 12 Mod. 318 ; 2 How. 430, s. 9, 12 ; 2 Keb. 384 ; Bac. Abr., Ev. F. ; see R. 
 V. Buckworth, Raym. 170, A former deposition of the witness may be used to 
 impeach his testimony, by showing omissions or variances which affect his 
 capacity or honesty ; but according to The Queen^s case, and Bastard v. Smith, 
 10 A. & E. (37 E. C. L. R.) 213, the depositions must be produced and shown 
 to the witness. And see the resolutions of the judges in criminal cases, ante, 
 p. 229. An examined copy is sufficient for this purpose : Ilighfield v. Peake, M. 
 & M. (22 E. C. L. R.) no. And see Davies v. Davies, 9 Car. & P. (38 E. C. 
 L. R.) 2.52; Ewer v. jbnhrose, 4 B. & C. (10 E. C. L. R.) 25, ante, p. 227. 
 
 ' What a man liimself who is livintr has sworn at one trial can never be sriven
 
 EXAMINATIONS UNDER COMMISSION, ETC. 423 
 
 Formerly the courts of common law possessed no direct'' power of 
 procuring the evidence of witnesses in a cause, who were abroad, 
 likely to die. or to be too ill to attend *the trial, or out of r:c i.^ it 
 the jurisdiction, so as to render it available on the trial 
 against the will of a party. It was therefore provided by stat. 13 
 Geo. III., c. 63, ss. 40 & 44, that where an action is brought in any 
 of the courts at Westminster, upon a cause of action arising in India, 
 the court" may award a mandamus to the judges of the courts of 
 India for the examination of Avitnesses ; and that the depositions, 
 duly taken and returned, shall be deemed as good and competent 
 evidence as if the witnesses had been SAvorn and examined vivd voce.^ 
 The operation of this provision having been found extremely bene- 
 ficial, the statute 1 AVill. IV., c. 22,^ was passed, which, after recit- 
 
 in evidence at another to support him, because it is no evidence of the truth; 
 for if a man be of that ill mind to swear falsely at one trial, he may do the 
 same at another, on the same inducements, B. N. P. 242. 
 
 ^ The only course was to file a bill in equity, see Bridges v. Fisher, 1 Bing. 
 N. C. (27 E. C. L. R.) 510, per Tindal, C. J., if the other party would not con- 
 sent to an order being made by the court. But the court frequently coerced 
 the plaintiff into a consent by postponing the trial, unless he acquiesced : Furly 
 V. Newnham, Dougl. 419 ; CalUard v. Vaughan, 1 B. & P. 210 ; Jones v. Brewer, 
 4 Taunt. 46 ; or the defendant by refusing to give him judgment as in the case 
 of a non-suit. Tidd. Prac. 852. Whether the Court of Exchequer on the revenue 
 side has such power in revenue cases seems to be very doubtful : Attorney-Gene- 
 ral V. Reilly, 13 M. & W. 676. It certainly has not on the application of the 
 defendant: Attorney- General v. Bovett, 15 M. & W. 60; B. v. Wood, 7 M. & W. 
 571 ; and in the case of a criminal information : R. v. Upton St. Leonard, 17 L. 
 J., M. C, 13, or other criminal case, it has no such power. But where the 
 witnesses for a defendant indicted for a misdemeanor resided in Scotland, the 
 court obliged the prosecutor to consent to the examination of the witnesses 
 before one of the courts there: per Lord Mansfield, Mostyn v. Fahrigas, Cowp. 
 172 ; and see R. v. Morphew, 2 M. & S. 602, ante, p. 412. 
 
 " Under this statute a judge at chambers has no power to award amandamus 
 and where the case is within this stat., the stat. 1 Will. IV. c. 22, does not 
 apply : Clarke v. East India Company, 18 L. J., Q. B. 23. 
 
 * See Francisco v. Gilmore, 1 B. & P. 177 ; Athins v. Palmer, 4 B. & Ad. (24 
 E. C. L. R.) 377. By s. 40 similar power is given in cases of indictments and 
 informations in Q. B. for misdemeanors and oS'ences committed in India, but in 
 an action at the suit of the Crown the court has no power to issue a mandamus 
 under this statute: R. v. Wood, 9 Dowl. 310. By 1 Geo. IV. c. 101, the evidence 
 of witnesses in India may be obtained, to support a bill of divorce, and in prose- 
 cutions for offences committed abroad, by persons employed in the public ser- 
 vice, the evidence of witnesses may be obtained under 42 Geo. III. c. 85 ; R. v. 
 Junes, 8 East 31. And see 54 Geo. III. c. 15, made for facilitating the recovery 
 of debts in the courts of New South Wales. 
 
 " As to the practice under these statutes and the mode for applying for a man-
 
 425 . JUDICIAL DOCUMENTS. 
 
 ing the *former Act, provides/ that these powers shall be 
 L "^ -^ extended to all colonies, islands, plantations, and places, 
 under the dominion of his Majesty in foreign parts, and the judges 
 of the several courts therein, and all actions in the superior courts 
 of Westminster wherever the cause of action may have arisen, when 
 it shall appear^ that the examination of witnesses under a writ or 
 commission under the authority thereby given will be necessary or 
 conducive to the administration of justice. It was also thought ex- 
 pedient to extend the operation of the former enactment, and there- 
 fore, by s. 4, it is enacted, that the Courts of Law at Westminster, 
 and the Court of Common Pleas of Lancaster and County Palatine 
 of Durham, and the several judges thereof, in every action there de- 
 pending, may order the examination on oath, upon interrogatories or 
 otherwise, before the master, or other person or persons named in 
 the order, of any witness within the jurisdiction of the court ; or 
 order a commission to issue for the examination of witnesses on oath 
 at any place out of the jurisdiction, and by the same or any subse- 
 
 damus or commissions, see Archibold's Practice, Interrogatories, and post, Vol. 
 II., tit. Witness. In this volume it is proposed simply to treat of that which 
 affects the deposition or examination when tendered in evidence. These statutes 
 only apply to oral evidence, and do not authorize the substitution of copies of 
 documents or secondary evidence of their contents for the originals, where they 
 are produced. Thus a witness examined at Madras under the stat. 13 Geo. III. 
 c. 63, gave in evidence certain original accounts ; and Lord Denman, C. J., held 
 that copies of them returned with the examinations by the Supreme Court of 
 Madras were not receivable, but that the ceurt should have transmitted the 
 original accounts : Reg. v. Douglasft, 1 C. &K. (47 E. C. L. R.) 670. And where 
 a witness, examined on interrogatories abroad, stated the contents of a letter not 
 produced, so much of the answer as related to the letter was rejected, although, 
 the witness being out of the jurisdiction, the production of the letter could not 
 be compelled : Steinkeller v. Newton, 9 Car. & P. (38 E. C. L. R.) 313. If a wit- 
 ness examined upon interrogatories refers to a document which he describes as 
 a legalized copy of a former deposition made by him, and which he states that he 
 confirms, but which is not authenticated in any way, it is not admissible : Alcock 
 V. Royal Exchange Insurance Company, 18 L. J., Q. B. 121. But the fact of its 
 appearing on the deposition that the deponent referred to papers not shown to 
 the commissioners will not prevent the deposition being read : Steinkeller v. New- 
 ton, 2 M. & Rob. 372. As to objections to improper interrogatories or questions, 
 see post, pp. 433, 444. 
 
 'Sect. 1. 
 
 * In the construction of this statute it lias been held to be immaterial that the 
 action is of a criminal nature, e. g. for crim. con. ; it is sufficient in order to ob- 
 tain the commission that the witness is out of the jurisdiction : Norton v. Lord 
 Melbourne, :', Ring. N. C. (32 K. C. L. R.) 67.
 
 DEPOSITIONS — TO PERPETUATE TESTIMONY. 426 
 
 qucnt order to give directions as to the time, manner, and 
 other matters *connected with the examination.'' A subse- •- " -• 
 quent section,' *however, provides that no examination or 
 deposition taken under the Act shall be read in evidence at *- " -^ 
 any trial, Avithout the consent of the party against whom it shall be 
 
 '' With respect to the mode in which the commissioners must proceed, cross- 
 examinations viva voce have been allowed to be made, such examinations being 
 reduced into writing and returned with the commission : Pole\. Bodgers, 3 Bing. 
 N. C. (32 E. C. L. R.) 780. When the commission directed that the examina- 
 tions should be taken, and the same should be returned with the commission, and 
 the commission having been directed to a foreign Court, they had copies of the 
 examinations taken and certified by their officer, and transmitted those copies 
 under the seal of the Court, it was held that they could not be read : Clay v. 
 Stej)hensnn, 7 Ad. & E. (34 E. C. L. 11- ) 185. But where the commissioners 
 were directed to reduce the examinations into writing in English, and swear an 
 interpreter to translate the oath, interrogatories, and depositions, the commis- 
 sion was deemed well executed by returning the original depositions in the for- 
 eign language as originally taken, and a copy translated six weeks after by the 
 interpreter: Atkins v. Palmer, 4 B. & Ad. (24 E. C. L. R.) 377. And where a 
 defendant, having obtained an order to postpone a trial till the sittings after Ilil. 
 Term, and for a commission, and a commission issued to, examine witnesses 
 abroad, but the commission was not returned till the following November, the 
 evidence was held to be inadmissible, and the Court granted a new trial : Stein- 
 keller v. Keivton, 8 D. P. C. 579. The examination must not be taken till after 
 issue joined: Mondell v. Steele, 9 D. P. C. 812. A judge's order having been 
 obtained by the plaintiff to examine witnesses abroad, the parties agreed upon 
 A. and B. as commissioners. The plaintiff obtained another order to examine 
 witnesses upon interrogatories without describing the commissioners by their 
 office, or referring to any commission, and the defendant then withdrew the 
 name of his commissioner, and declined to proceed on the gi'ound of the plain- 
 tiff's irregularity. The plaintiff subsequently obtained another order ex parte, 
 to examine witnesses before A. upon interrogatories, and it was held thajt ex- 
 aminations taken under this order were admissible, although no notice of the 
 time and place of examination had been given to the defendant: McCumbey v. 
 Anton, 6 M. & G. (46 E. C. L. R.) 27. If, however, there be any such irregu- 
 larity as a want of notice of the time and place of executing the commission, 
 preventing the other party from cross-examining, the depositions are inadmissi- 
 ble : Steinkeller v. Newton, 9 C. & P. (38 E. C. L. R.) 313. So if the order 
 does not pursue the statute, not naming the place of examination, although it 
 be inserted in the commission : Greville v. Stulz, 11 Q. B. (63 E. C. L. R.) 997 
 But the order need not be produced, and its not naming the commissioners, or 
 the commission not being tested in term is no objection to the evidence -.''•Nicol 
 v. Alison, 11 Q. B. (63 E. C. L. R.) 1006. If the witnesses are to be examined 
 apart, this will be piesumed to have been done ; and it is sufficient to prove 
 that the commission produced is the same that issued, and to identify the 
 signatures of the commissioners : Simons v. Henderson, 11 Q. B. (63 E. C. L. R.) 
 1015. 
 
 ' Sect. 10. There is no similar provision in 13 Geo. III. c. 63,
 
 427 JUDICIAL DOCUMENTS. 
 
 offered, unless it shall appear to the satisfaction of the ju(l<^e that 
 the witness is beyond the jurisdiction, or dead, or unable, from per- 
 manent sickness, or other permanent infirmity, to attend the trial : in 
 which cases the examinations and depositions, certified under the 
 hand of the commissioners, master, prothonotary, or other person 
 taking the same, shall and may, without proof of the signature of 
 such certificate, be read in evidence, saving all just exceptions. By 
 the Mercantile Marine Act'' also, " whenever in any legal proceeding 
 in England, in respect of any matter in which British consular offi- 
 cers (see sect. 82) have the power of taking depositions, it is proved 
 that a witness who has been examined before such officers abroad, is 
 out of the United Kingdom, or cannot be found or produced on the 
 trial or hearing, his deposition taken before such officers in the 
 matter, and if the proceeding be criminal, in the presence of the 
 party accused, and certified by such officer under his official seal to 
 be so taken, shall be evidence ; and if it purport to be so certified, 
 shall be deemed to have been so taken and certified, unless the con- 
 trary is proved." 
 
 Where a subject-matter is likely to be litigated in future, but can- 
 not be made the subject of immediate investigation, and testimo'ny is 
 in existence which is in danger of being lost, a bill in equity lies to 
 perpetuate the testimony of witnesses in order to prevent the hard- 
 ship which might accrue to a party from an investigation at a remote 
 period, when death had deprived him of them.^ This proceed- 
 L " J ing *may be resorted to whether the testimony relates to real 
 estate or a mere personal demand ; or is to be used in support of an 
 action, or of the defence, or in cases of public or private penalties or 
 forfeitures.™ The bill to perpetuate testimony, strictly so called, 
 could formerly be filed only by persons who were in possession under 
 their title, and therefore could not sue at law ; if the testimony were 
 required by persons out of possession it was obtained by a bill to 
 take testimony de bene esse, but the latter could be filed only when 
 an action was actually depending." Hence the 5 & 6 Vict., c. 69, 
 has enacted, that any person who would, under the circumstances 
 alleged by him to exist, become entitled upon the happeriing of any 
 
 " 13 & 14 Vict. c. 93, 8. 115. 
 
 ' See Angell v. Angeli, 1 Sim. & Stu. 89. The bill will be defective unless it 
 .state that the matter in question cannot be made the subject of immediate in- 
 vestif^ation : Ibid,; see also Dew v. Clarke, 1 Sim. & Stu. 114. 
 
 " 1 Story, Eq. Jur. 2d ed. ()65. 
 
 ■" Ibid. 664.
 
 DEPOSITIONS — PRELIMINARY PROOF. 428 
 
 future event to any honor, title, dignity or office, or to any estate or 
 interest in any property, real or personal, the right or claim to which 
 cannot hy him be brought to trial before the happening of such event, 
 shall be entitled to file a bill in Chancery to perpetuate any testimony 
 which may be material for establishing such claim or right. Before 
 this statute a bill for a commission to examine witnesses abroad in 
 aid of a trial at law, where a present action might be brought, was 
 held demurrable, unless it averred that an action was pending." 
 
 *Where an old witness has been examined, it is sometimes 
 made part of the rule for a new trial that the judge's note L " J 
 of his evidence shall be read upon the new trial.'' 
 
 The court will not grant a mandamus to justices of the peace to 
 produce depositions taken on a charge of felony, in order to ground 
 a prosecution for perjury.'' But the magistrate may be subpoenaed 
 before the grand jury, who may found a presentment on his evi- 
 dence.' 
 
 The preparatory facts must first be proved which warrant the re- 
 ception of the evidence, as that the witness is dead, insane or ab- 
 sent, unless lapse of time negative his existence.^ Where a deposition, 
 thirty-nine years old, represented the witness to be sixty, it was held 
 that it could not be read Avithout proof of his dfeath.' The absence 
 of witness must be proved by some one who can speak to the fact 
 from his own knowledge ; therefore, proof of inquiries and the an- 
 SAvers in reply to them at his residence, is not enough." And proof 
 that on the evening before the trial, he was with his luggage on 
 
 ° Angell v. Angell, 1 Sim. & Stu. 91, But see Moodalay \. Morton, 2 Dick. 
 652 ; 1 Bro. P. C. 469 ; dub. Phillips v. Carew, 1 P. Wms. 117. Upon a petition 
 of right a conimission issued, and an inquisition was thereupon found and re- 
 turned into Chancery. Before any other proceeding the suppliant filed a bill 
 against the Attorney-General to perpetuate testimony, reciting the petition, and 
 a commission to examine witnesses issued thereon ex parte, the Crown declining 
 to join. The Crown traversed the inquisition, and the record was sent into the 
 Q. B. The Court held that the depositions taken under this commission were 
 taken in a proceeding substantially the same, and were admissible, the wit- 
 nesses being out of the jurisdiction: Baron de Bode's case, 8 Q. B. (55 E. C. 
 L. R.) 208. 
 
 P ShilUto V. Claridge, 2 Ch. 42G ; and see ante, p. 408, n. (r), 
 
 1 1 Chitty 627. 
 
 ' Ibid. 
 
 " Benson v. Olive, in Scacc. Stra. 920, where the deposition was sixty years 
 old. 
 
 ' 1 Ford's MSS. 146 ; Stra. 920. 
 
 ° Robinson v. Markis, 2 M. & Hob. 375. 
 26
 
 429 JUDICIAL DOCUMENTS. 
 
 board a ship bound to Montreal, then three-quarters of a mile below 
 Gravesend, waiting for the captain to come on board, will not suffice/ 
 But in Varicas v. French,'' proof by a person that he has prepared 
 the outfit for Australia of a witness examined under a judge's order, 
 and had seen him start by the railway to go on board the ship for 
 that place, Avhich lay at Gravesend; and that he had received two 
 letters from him, one from Sheerness and the other from Plymouth, 
 was held sufficient, by Coleridge, J., to satisfy him that the witness 
 was abroad ; and his examination before the master was read. 
 r*4^0"l *Next, it must be proved that such a cause existed,^ in 
 order to show the admissibility of the oath of the witness; 
 for if no cause existed, the oath was nothing more than a voluntary 
 affidavit.^ And also that it was between the same parties ; thus 
 where on a former trial a deed was given in evidence on the part of 
 the defendant, and the limitations in it were stated in court by the 
 defendant's counsel, a copy of the shorthand-writer's notes of that 
 statement was held inadmissible in another action by the same plain- 
 tiff against another defendant."' Although the bare production of 
 ih.e postea, witliout proof of final judgment, be no evidence of the 
 verdict, for judgment may have been arrested, or a new trial 
 granted, yet it is good evidence that a trial was had between the 
 same parties, so as to introduce the evidence of a witness (who is 
 since dead) at the trial.'' And so it is on an indictment for perjury." 
 Where the deposition has been taken in Chancery it is necessary 
 to prove the bill and ansAver,'' in order to show the existence of a 
 lawful cause, and that the depositions relate to the same matter. 
 And, therefore, exemplified depositions in the Duchy Court were 
 
 ^ Carruthers v. Graham, Car. & M. (41 E. C. L. R.) 5. See sect. 10; but see 
 also ante, p. 412. 
 
 "2 Car. & K. (61 E. C. L. R.) 10G8. 
 
 y Where the order for the examination is made under either of the statutes 
 above mentioned, as it will have been made in the action, which the date of the 
 writ on the record will show to have been previously brought, this preliminary 
 proof is unnecessary. 
 
 ' B. N. P. 242 •, 1 Raym. 730 ; 12 Vin. Abr., Ev. A., b. 61, pi. 16. 
 
 » JJoe dem. Gilbert v. lioss, 7 M. & W. 102. 
 
 "B. N. P. 243; 1 Stra. 162. 
 
 •= B. N. P. 243 ; E. v. Iks, M. 14 Ceo. II. cor. Raymond. 
 
 "^ JJ II lion's case, Trial at Bar. Raym. 33r) ; Vin. Abr., Ev. A.,b. 31, pi. 12; 
 (iilb. Law of Ev. 56 ; B. N. P. 240; lllingworlh v. Leigh, 4 Gvvill. 1619 ; Bjjam 
 v. Jioolh, 2 Price 234, n. ; Baker v. Sweet, Bunb. 91. If the bill is dismissed 
 for informality, see 2 P. Wms. 162.
 
 DEPOSITIONS — PRELIMINARY PROOF. 430 
 
 held to be inadmissible, because the answer was not exemplified/ 
 But where the Court of Chancery makes an order, on directing an 
 issue at law, that the depositions shall be read, proof of *the r^^oj-i 
 bill and answer is not necessary/ And where the bill and 
 answer have been lost, they may be supplied by other memorials.* 
 And ancient depositions have been admitted without proof of the 
 bill and answer, because formerly they were not enrolled, and were 
 liable to be lost.*" The depositions may be used, although the bill 
 has been dismissed on the ground that the court considered the mat- 
 ter unfit for a decree in equity.* Where evidence has been given 
 upon the trial of an issue directed by a Court of Equity, upon a bill 
 filed by a party, it is no objection to the receiving upon the trial of 
 an ejectment between the same parties the evidence of a witness ex- 
 amined on the trial of that issue, that the bill has since been dis- 
 missed.'' Depositions taken by order of Queen Elizabeth, on peti- 
 tion, without bill and answer, were allowed to be read.' Where de- 
 positions in a suit in equity are given in evidence at law, and the bill 
 and answer are put in to show that the depositions are admissible, the 
 bill and answer cannot be referred to by the opposite counsel in his 
 address to the jury.™^ 
 
 « Clay 9 ; Vin. Abr., Ev. A., b. 31. 
 
 ^Palmer v. Lord Aylesbury, 15 Ves. 176; Corbet v. Corbet, 1 A^es. & Beamee 
 340. 
 
 ^Barhfs case, 5 Mod. 210 ; Vin. Abr., Ev. A., b. 36, pi. 33. 
 
 ^ 2 Keb. 31 ; Law of Ev. 113, 65, 2d ed. ; Byam v. Booth, 2 Price 231 ; IlUng- 
 ivoi-th V. Leigh, 4 Gwill. 1615; R.\. Countessof Arundel, Yloh. 112. Depositions 
 taken under a commission issuing out of the Exchequer cannot be read without 
 producing the commission, unless they are of so long standing as to afford a 
 presumption that the commission is lost : Bayley v. Wylie, 6 Esp. 85. But, if 
 the commission be produced, it is not necessary to produce the bill and answer 
 upon which the commission was granted: Ibid. Of course answers to inter- 
 rogatories may be used as admissions, although some of the answers are not 
 intelligible of themselves: Rowe v. Brenton, 8 B. & C. (15 E. C. L. R.) 765. 
 
 ' Hall V. Hoddesdo7i, 3 P. Wras. 162. 
 
 ^ Wright V. Doe d. Tatham, 1 Ad. & E. (28 E. C. L. R.) 3. 
 
 •Hob. 112. 
 
 " Chappell v. Purday, 14 M. & W. 303. 
 
 ^ Statutes authorizing depositions are in derogation of the common law. and 
 must be strictly pursued : Graham v. Whitely, 2 Dutch. 203 ; Williams v. Chad- 
 bourne, 6 Cal. 559. An order to take testimony by deposition should specify 
 the notice to be given to the adverse party, and a deposition taken upon an 
 order without such notice, where the opposite party has not had reasonable 
 notice, ought not to be read : Ellis v. Jasynsky, 5 Cal. 444. A justice compe- 
 tent to administer an oath in a foreign state is competent to take depositions,
 
 431 JUDICIAL DOCUMENTS. 
 
 In ordinary cases, it seems to be sufficient to prove that the depo- 
 sition was signed by the Master; but upon an *indictnient for 
 L "-' perjury the identity of the deponent must be strictly proved." 
 
 °3 Mod. 116, 117; see tit. Perjury. Lord Holt, in one case (Ld. Eaym. 
 734), held that it should be proved by the examiner thai the depositions were 
 taken on the day of their date. 
 
 and his statement in the caption or certificate that he sustains that character is 
 prima facie proof of the fact: Hoover v. Raxdin(js, 1 Sneed 287. It is irregular 
 in taking depositions to adjourn from the place where the adverse party has 
 been served with notice to attend, to another place, in the absence of such 
 party: Beach v. Workman, 20 N. II. 379. The certificate of a justice of the 
 peace, before whom a deposition is taken, is good evidence of an agreement be- 
 tween the parties to change the place of taking : Fry v. Coleman, 1 Grant 445. 
 The deposition of a witness taken in another cause between the same parties, 
 cannot be read without showing that he is dead or not within the jurisdiction 
 of the court : Sadler v. Anderson, 17 Tex. 245. Whether the preliminary ground 
 of non-residence can be proved by the deposition itself, see Grinnan v. Mackbee, 
 29 Mo. 345 ; Nevan v. Roup, 8 Clarke 207. It seems that when a witness has 
 given his deposition, and afterwards on being called his memory of the transac- 
 tion fails, his deposition may be read by the party calling : Jacks v. Woods, 5 
 Cas. 375. The failure of a witness to make a substantial answer to a proper 
 interrogatory, either in his answer to that particular interrogatory or elsewhere 
 in his deposition, is good ground for suppressing his deposition : Harris v. Miller, 
 20 Ala. 221. An interrogratoi-y, not objected to when a deposition is taken, in 
 presence of the adverse party, cannot be objected to at the trial: Willey v. 
 Portsmouth, 35 N. 11. 303. Cross-examining a witness is a waiver of objections 
 to^the insufficiency of notice : Jones v. Love, 9 Cal. 68, The fact that a deposi- 
 tion contains inadmissible evidence is not a good reason for excluding it alto- 
 gether: Hamilton v. Scull, 25 Mo. 165; Hempstead v. Johnston, 18 Ark. 123; 
 Chamberlain v. Masterson, 29 Ala. 299. By o9"ering and reading in evidence 
 parts of a deposition, the party in whose behalf it was taken does not make the 
 whole of it evidence, or make irrelevant or incompetent answers admissible : 
 Gellatty v. Loicery, 6 Bosw. 113. When a commissioner is appointed to take 
 depositions, it is improper for the witness to produce his deposition written by 
 himself, not in the presence of the magistrate : Foster v. Foster, 20 N. II. 208. 
 A deposition under a commission should be taken in the absence of those inter- 
 ested in the suit: Sayler v. Stewart, 5 Wis. 8. At the taking of a deposition 
 under a commission out of the State, no agent or attorney of either party should 
 be allowed to be present: Walker v. Barron, 4 Minn. 253, It is not a ground 
 of objection to a deposition that it was reduced to writing by the deponent in 
 the presence of the commissioner : Fisk v. Tank, 12 Wis. 276. A deposition is 
 admissible when the deponent was a competent witness at the time it was taken, 
 although at the time of the trial he is not so : Cameron v. Cameron, 15 Wis. 1 ; 
 Midford v. jMinch, 3 Stock. 16. A release of interest after deposition does not 
 render it admissible: Bell v. Woodward, 46 N. II. 315, The authority to take 
 a deposition is sufficiently shown by proof that the person taking it was an 
 acting commissioner or notary: Wells v. Jackson, 47 N. II. 235. A deposition
 
 DEPOSITIONS — HOW PROVED. 432 
 
 A deposition may be proved by an examined copy;" office copies, 
 though admissible in equity, are not admissible in a court of hiw. 
 Upon the trial of an issue directed by the Court of Chancery to try 
 the validity of an alleged deed of gift, it was held that an office 
 copy of a deposition made by the plaintiff's brother in the suit in 
 equity, and which was proved to have been examined with the origi- 
 nal, was admissible to contradict the witness. p The party reading 
 the deposition must, as part of his own case, read also the answer 
 to the cross-interrogatories, abandoning the rest.'' But he may read 
 part, where the rest is inadmissible, as purporting to state the con- 
 tents of a letter which is not produced.'" As observed before, upon 
 a trial of an issue at law, directed by the Court of Chancery, depo- 
 sitions will be allowed to be read, under an order of the Court of 
 Chancery, without proof of the bill and answer.^ Such an order is 
 
 " Gilb. Law of Ev. 21 ; B. N. P. 229 ; Stark. C. 13. 
 
 P Ilighjield v. Peake, M. & M. (22 E. C. L. R.) 109 ; coram Littledale, J., who 
 said, that this being an issue out of Chancery might be considered as a pro- 
 ceeding in that Court, and therefore that the office copy according to the case 
 of Dunn v. Futford, 2 Burr. 1179, might be considered to be good evidence. 
 In the case of Bees dan. Howell v. Bowen, 1 McC. & Y. 383, the Court of Ex- 
 chequer is reported to have held that an examined copy of an affidavit, made for 
 the purpose of obtaining an injunction, w-^as not admissible; but see M. & M. 
 (22 E. C. L. R.) Ill ; Eiver v. Ambrose, 4 B. & C. (10 E. C. L. R.) 25 ; Ilennell 
 v. Li/on, 1 B. & A. 182. 
 
 1 Temijerley v. Scott, 5 C. & P. (24 E. C. L. R.) 341. 
 
 ■■ Wheeler v. Atkins, 5 Esp. C. 246. Even although it be part of an entire 
 answer to one question, Tufton v. Whitmore, 12 Ad. & E. (40 E. C. L. R.) 370 ; 
 and though the answers state the contents of writings inadmissible in evidence : 
 M'Intyre v. Lmjard, R. M. (21 E. C. L. R.) 203. 
 
 ^ Palmer v. Lord Aylesbury, 15 Ves. 176 ; Corbet v. Corbet, 1 Ves. & B. 340. 
 
 written by attorney of the party will be suppressed : Hurst v. Larpin, 21 Iowa 
 484. Where a substantial answer is given to a cross-interrogatory, and there is 
 nothing to justify the conclusion that the witness was seeking to evade a dis- 
 closure, the deposition will not be suppressed : Aicardi v. Strang, 38 Ala. 326. 
 A deposition will not be suppressed on account of a failure to answer a question, 
 if the facts sought to be elicited can be ascertained from other parts of the de- 
 position or are immaterial: Black v. Black, 38 Ala. 111. As to irregularities 
 in the form of the depositions, certificate, &c., see Wells v. Jackson ,47 N. H. 
 235; Field v. Tenney, Ibid. 513; Lund v. Dawes, 41 Vt. 370; New Jersey Ex. 
 Co. V. Nichols, 3 Vroom 166 ; Ballard v. Perry, 28 Tex. 347 ; Pralus v. Pacific 
 Co., 35 Cal. 30; Trout v. Williams, 29 Ind. J8; Cook v. Bell, 18 Mich. 387. 
 The fact that the testimony of a witness was not taken down in a deposition by 
 the magistrate is no objection to its admissibility, unless it also appear that it 
 was written by the party, his agent or attorney : Crossgrove v. Himmclrich, 4 
 P. F. Smith 203.
 
 433 JUDICIAL DOCUMENTS. 
 
 not made for the purpose *of making that evidence Avhich 
 •- J would not otherwise be admissible;'^ and depositions under 
 such an order are not admissible without proof at the trial that the 
 deponents cannot attend in person. Where the evidence of a witness 
 upon a former trial is adduced, the evidence itself must be proved on 
 oath, or by the notes of the judge who tried the case.* And in Lord 
 Palmerston s case the evidence was rejected, because the witness 
 could give the effect only of the evidence, and not the words." 
 Where a witness on a former trial of an issue out of Chancery died, 
 and a new trial was granted, parol evidence of what such witness had 
 sworn was held to be admissible, notwithstandinoj an order for reading 
 the depositions in equity of such witnesses as had died since the first 
 trial.^ The copy of the deposition of a person examined upon inter- 
 rogatories at the Chief Justice's chamber, signed by the Chief Justice, 
 and received from his clerk, must be taken prima facie to be a correct 
 copy of what has been sworn by such witness ; and the original ex- 
 amination need not be produced, until some suspicion of forgery is 
 thrown upon the signature of the deponent.'' Where the deposition 
 has been taken under the statute 7 Geo. IV., c. 64, it must be shown 
 that the requisites of the statute have been complied with.'' 
 
 It is no objection at the trial that the interrogatories were leading 
 
 ones, where the party might have objected* *to their being 
 
 '- -^ put, and did not. But answers to improper questions put 
 
 upon an examination under 1 Will. IV., c. 22,'' may be objected to 
 
 and excluded a.t nisi prius, but not by the party who put the questions. 
 
 Where the interrogatories to certain tenants at assize session courts, 
 
 " 15 Ves. 170 ; but see Doe v. Wriglit, 2 Ad. & E. (29 E. C. L. R.) 3. 
 
 • 1 Sid. 325 ; Law of Ev. 31 ; Bac. Abr., Ev. F. ; Mayor of Doncaster v. Day, 
 3 Taunt. 262. 
 
 " 4 T. R. 296. Qu., whether so great exactness is necessary ; even an indict- 
 ment for perjury sets out the substance only. Where the witness deposing as 
 to what the defendant swore on trial, stated that he could not swear he had 
 stated all which fell from the prisoner, but would swear that he had said 
 nothing to qualify it; it was held sufficient: Rowley'' s case, Ry. & M. (14 E. C. 
 L. R.) HI. 
 
 ^ Tod V. FmyI of Winchehea, 3 C. & P. (14 E. C. L. R.) 387. 
 
 ^ Duncan v. Scott, 1 Camp. 100. 
 
 • See tit. Dispositions, and 11 & 12 Vict. c. 42. 
 
 • Williams V. Williams, 4 M. & S. 497. 
 
 *' JIntckinson v. Bernard, 2 M. & Rob. 1, or answers whicli involve inadmissi- 
 ble matter: e. (j., the contents of written documents: Steinkeller v. Newton, 9 
 Car. & F. (38 E. C. L. R.) 313. But that ^>»ar^ only of an entire answer will be 
 rejected which involves such matter: Tuflon v. W kitmore, 12 Ad. & E. (40 E. 
 C. L. R.) 307.
 
 DEPOSITIONS — now PROVED. 434 
 
 upon proper search could not be found, it was held that the answers 
 might be read, subject to the consideration, whether their effect would 
 not be destroyed bj any ambiguity which might arise from tlic want 
 of those questions." 
 
 Depositions taken in ecclesiastical causes before courts of compe- 
 tent jurisdiction are admissible on the same principles which warrant 
 the receiving such evidence in other cases. "^ There are indeed several 
 cases to the contrary, but as these are founded principally upon the 
 objection that Ecclesiastical Courts are not courts of record, and 
 partly on the objection that their proceedings are governed by the 
 rules of the civil law, it seems to be unnecessary to discuss them at 
 length. The reception of depositions in equity is an answer to the 
 first objection; and, as to the second, it may be answered, that the 
 principles on which depositions in other causes are held to be receivable 
 in courts of common law, are quite independent of the use to be made 
 of such depositions. It is sufficient that the court possess jurisdic- 
 tion such as to warrant the punishment of one who swears falsely, 
 and that the adverse party had due notice and opportunity to cross- 
 examine the witnesses. Upon the same principles, it seems that a 
 deposition before commissioners of excise having power to 
 
 * 
 
 inquire as to forfeitures, is admissible upon an appeal, in 
 
 [*435] 
 
 case of the death of the deponent.® 
 
 The third class into which judicial documents are divided consists 
 of documents incidental to judicial proceedings, such as writs, war- 
 rants, pleadings, and bills and answers in Chancery. 
 
 Writs and warrants are in general evidence to show the mere 
 fact of their existence, whenever it becomes material, against all the 
 world ; for the issuing or existence of a writ is a mere fact. Before 
 the Uniformity of Process Act, when the proceeding was by original, 
 or in the Common Pleas, the writ Avas evidence to show that the 
 action was commenced earlier than it appeared to have been by the 
 record, which was entitled of the term in which issue was joined.^ 
 Accordingly, where in an action on an attorney's bill in tliat court, 
 it appeared that the bill had been delivered September 30th 1797, 
 and the record was entitled of Hilary 1798, it was held to be incum- 
 bent on the defendant to show by the writ that the action had been 
 in fact commenced before the expiration of the month. ^ So the 
 
 <= Roioe V. Brenton, 8 B. & C. (15 E. C. L. R.) 765. 
 
 ^ Gilb. Law of Ev. 60. See the cases as to this, ante, p. 417. 
 
 ® Accordin<2; to the opinion of Lord Holt in Breedon v. Gill, 1 Ld. Raym. 219 
 
 ' Webb V. Pritchcft, 1 B. & P. 263. 
 
 e Ibid.
 
 435 JUDICIAL DOCUMENTS. 
 
 plaintiff, in order to save the Statute of Limitations, or a tender, 
 
 naigbt give in evidence a bill of Middlesex, or latitat.''^ 
 
 .-. .^^-^ Where goods are seized under a iieri facias, if the *de- 
 
 r*4361 ^ . ... 
 
 L J fendant himself bring an action against the sheriff or bailiff' 
 
 for seizing them, it will be suflBcient for him to prove the writ, but if 
 the action be brought by a person claiming by virtue of a prior exe- 
 cution, or a sale which was fraudulent, the officer must prove the 
 judgment as well as the Avrit ; for, in the first case, by proving that 
 he took the goods in obedience to a writ issued against the plaintiff, 
 he shows that he has committed no trespass ; but, in the latter cases, 
 they are not the goods of the party against whom the writ issued, 
 and the officer is not justified in taking them, unless he can bring the- 
 case within the stat. 13 Eliz., for which purpose it is necessary to 
 show a judgment,'' For the writ itself is a justification for seizing 
 the goods of the defendant ; but if those goods be claimed by another 
 under a colorable title, as the officer must show that the act of 
 transfer from the defendant was fraudulent, and therefore void as 
 against a judgment creditor ; he must show that a judgment existed. 
 Accordingly, where A. brought an action of trespass against the 
 sheriffs, who proved a fieri facias against the goods of i?., but did 
 not prove a copy of the judgment ; after a verdict for the plaintiff 
 upon the point reserved, the court held that the judgment ought to 
 have been proved ; but because it appeared that the goods were in 
 fact the goods of B., and that his conveyance of them to A. B., 
 himself remaining in possession of them, was fraudulent, the court 
 granted a new trial. ^ 
 
 Where in ejectment the lessor plaintiff claimed under a sale upon 
 
 ^ 1 Sid. 53 ; Dacy v. Clinch, Ibid. 60 ; Crokat v. Jones, Str. 734 ; Ld. Raym. 
 1441 ; 2 Burr. 961 ; 3 Burr. 1243 ; Foster v. Bonner, Cowp. 454. But in the case 
 of writs which have been issued and continued to obviate the Statute of Limita- 
 tions, the Uniformity of Process Act requires that each writ shall be returned 
 within one month of its expiration and entered of record, and that it shall have a 
 memorandum of the first writ and return indorsed upon it. These facts must be 
 proved, not merely by the production of the writs and the record, but by extrinsic 
 evidence: Iliygs v. Mortimer, I Ex. 711; Walker v. Collick, 4 Ex. \7\; Prit- 
 chard v. Ihijshmc, 20 L. J., C. P. 161 ; and see further as to this, Vol. II., tit. 
 Limitations. 
 
 ' Andreu-s v. Marris, 1 Q. B. (41 E. C. L. E.) 3. 
 
 » B. N. P. 234. 
 
 ' Martin v. Podger, Burr. 2361 ; and see Lake v. Billers, Lord Raym. 733 ; see 
 also Ackworthy. Kewpe, Doug. 40. But this may be supplied by the plaintiff 
 putting in tlio warrant or writ, reciting it: Jicssey v. Wyndham, 6 Q. B. (51 E. 
 C. L. R.) 1 60; and see Corhclt v. Grey, post, 446, note (a).
 
 WRIT S — W A 11 R A N T S — W HEN ADMISSIBLE. 436 
 
 a fieri facias, in an action by himself against the defendant in eject- 
 ment, the court held that he was bound to prove the judgment as 
 well as the writ, being privy to his own judgment.™ In order to 
 prove the *crime of murder against the party who kills an r-^,cy„-, 
 officer in the execution of civil mesne process, it is necessary ■- '"* -' 
 to prove the writ as well as the warrant from the sheriff." And so 
 it is in case of a justification by an officer in the execution of such 
 process." Upon issue taken upon a plea of 2jZ(?we adminisfravit, proof 
 of an execution is not evidence without the judgment, for without it 
 there appears to be no authority for the execution. p 
 
 As the sheriff is a public officer and minister of the court, credit 
 is given to the statement upon his return, as to his official acts. Thus, 
 in the case of Cryfford v. Woodgate,'^ in an action for maliciously 
 suing out an alias fieri facias, after a sufficient levy under the first, 
 it was held, that the sheriff's return upon the two writs, which had 
 been produced in evidence by the plaintiff as part of his case, in 
 which the sheriff stated that he had forborne to sell under the first, 
 and had sold under the second writ, by the request and with the con- 
 sent of the plaintiff himself, were jjrimd facie evidence of the facts 
 so returned. So if the sheriff return a rescue, the court will so far 
 give credence to such return as to issue an attachment in the first 
 instance ; though upon an indictment for rescue it would be open for 
 the defendant to show that the return was fiilse.' The sheriff's 
 return, that he has levied, is no proof that he has paid over the 
 money levied to the execution creditor f his endorsement on the 
 writ is evidence against himself.' 
 
 The writ either has been returned, or it has not; if it has been 
 returned, it is a record, and should be proved in *the same p^.oo-i 
 manner as any other record." If the writ has not been re- ^ -I 
 turned, the original should be produced. 
 
 " Doe dem. Bland v. ^mith, 2 Stark. C. (3 E. C. L. R.) p. 199. For the 
 effects 0^ writs and warrants, &c., as a justification of the olHcer, see Andrews v. 
 Harris, 1 Q. B. (41 E. C. L. R.) 3 ; and tit. Officer, Homicide, &c. 
 
 ° R V. Mead, cor. Wood, B., 2 Stark. C. (3 E. C. L. R.) 205. 
 
 ° 3 Lev. 63. p Per Holt, J., Tr. per Pais 227. 
 
 9 11 East 296. ' R. v. Elkins, 4 Burr. 2129. 
 
 " Cater v. Stokes, 1 M. & S. 599. 
 
 t See tit. Sheriff, and Martin v. Bell, 1 Stark. C. (2 E. C. L. R.) 413. 
 
 " Vide supra, p. 257, et seq. Thus, in case against the sheriff for a false re- 
 turn to aji.fa. brought in the same court as the original action, office copies of 
 ihe writ and return (not being also examined copies) were rejected by Lord Den- 
 man, C. J. ; Pitcher v. King, 1 C. & K. (47 E. C. L. R.) 655.
 
 438 JUDICIAL DOCUMENTS. 
 
 A writ, if not returned, is proved by the mere production ; when 
 it has been returned, it may be proved by an examined copy.'' The 
 judgment-roll is incontrovertible evidence of all the proceedings 
 which it sets forth, therefore it is evidence of the issuing an elegit, and 
 of the return to the writ, in an action for use and occupation, by the 
 plaintiff claiming under an elegit/ When the writ is mere matter 
 of inducement, it may be proved by the production of the writ 
 itself, "^ without a copy of the record ; for possibly it may not have been 
 returned, and then it is no record ; but where a record is the gist of 
 the action a copy from the record is necessary, because that is the 
 best evidence. To prove an allegation, that the defendant issued a 
 writ against A. B., it is not sufficient for the plaintiff to show the 
 entry of a prcecipe in the filazer's book, and after proving notice to 
 the defendant to produce it, to give in evidence a copy ; it should 
 be shown that search was made for it in the treasury, and that after 
 the return of the writ it was in the hands of the defendant.* The 
 r^ ,on-i ^rit of summons, however, given by 2 & 3 Will. IV., *c. 39, 
 has no return day, although it is for some purposes consi- 
 dered as returnable on the day when it was issued. 
 
 A bill in equity is always evidence for the purpose of proving as 
 a fact that such a bill has been filed. But a bill in equity is not 
 admissible in any case, even against the plaintiff himself, or those 
 who claim through him, as to any facts alleged in the bill, even 
 although they relate to matters of pedigree.*' In the case of the 
 
 ^ Supra, p. 265. y Ramsbottam v. Bucklmrst, 2 M, & S. 567. 
 
 ^ B. N. P. 234 ; Gilb. Law of Ev. 34. 
 
 " Edmonstone v. Plaisied, 4 Esp. C. 160. The sheriff's book is not evidence 
 of the contents of a writ: Russell v. Dickson, 6 Bing. (19 E. C. L. R.) 442. In 
 order to connect the mayor of a corporation, under 5 & 6 Will. IV. c. 76, with 
 the issuing of a warrant under which the defendant's goods had been unlaw- 
 fully seized, the high constable who executed it was called under a siibpcena 
 duces tecum. lie said that he had deposited the warrant in his office, and had 
 searched for it but could not find it ; that he did not know what had become of 
 it ; and that the town clerk had access to his office. It was held that secondary 
 evidence might be given of the contents, without calling the town clerk or 
 serving the defendant (the mayor) with notice to produce it: Fernlei/ v. Wurth- 
 ington, 1 M. & G. (39 E. C. L. R.) 491. 
 
 " Boileau v. Rutlin, 2 Ex. 665 ; Doe v. Si/horn, 7 T. R. 3 ; and see Davies v. 
 Lowndes, 6 M. & G. (46 E. C. L. R.) 471 ; Pennell v. Met/er, 2 M. & Rob. 98 ; 
 Taylor v. Cole, 7 T. R. 3, n., where Lord Kenyon, at the sittings after Hil. 
 Term 1799, is stated to have held, that a bill in Chancery, filed by an ancestor, 
 was evidence to prove a family pedigree, in the same manner as an inscription 
 on a tombstone, or in a Bible ; but see Com. Dig., Ev. C. 2 ; Devon v. Jones, 2 
 Anst. 505. It was formerly held, that a bill in equity was admissible evidence
 
 WRITS — now PROVED. 439 
 
 Banbury Peerage, all the judges held that, generally speaking, a bill 
 in Chancery cannot be received as evidence in a court of law to 
 prove any fact, either alleged or denied in such bill, although it 
 relate to matter of pedigree, and be of considerable antiquity, 
 whether the object of the bill be to perpetuate testimony or to 
 obtain relief." 
 
 against the plaintiff in equity where his privity could be proved, althoui^h the 
 bill had not been acted on, and without proof of privity if the bill has been 
 acted on: Ch. C. 6-1, 05 : ^now v. Phillips, 1 Sid. 221 ; Eq. Ca. Ab. 227, pi. 1 ; 
 B. N. P. 235; Fitzg. 190 ; Doe v. Si/burn, 7 T. R. 3. But it is now finally 
 settled that the statements in the bill are to be re<;arded as the mere suggestions 
 of the pleader : Boileau v. Eutlin, supra. 
 
 <= In The Banbury Peerage case, 23d Feb. 1809 (cited 2 Sel. N. P. 712), the 
 counsel for the petitioner stated that he would offer in evidence certain depo- 
 sitions taken upon a bill (seeking relief), filed in the Court of Chancery on the 
 9th February 1040, by Edward, the eldest son of the first Earl of lianbury, an 
 infant, by his next friend. This evidence having been objected to, and the 
 point argued, the following questions were proposed to the Judges : — 
 
 Upon the trial of an ejectment brought by E. F., against G. H. to recover the 
 possession of an estate, E. F., to prove that 0. D., from whom E. F. was de- 
 scended, was the legitimate son of ^. B., offered in evidence a bill in Chancery, 
 purporting to have been filed by C. D- 150 years before that time, by his next 
 friend, such next friend therein styling himself the uncle of the infant, for the 
 purpose of perpetuating testimony of the fact that C. D. was the legitimate son 
 of A. B., and which bill stated him to be such legitimate son (but no pei'sons 
 claiming to be heirs at law of A. B., if C. D. was illegitimate, were parties to 
 the suit, the only defendant being a person alleged to have held lands under a 
 lease from A. B., reserving rent to A. B. and his heirs) ; and also offered in 
 evidence depositions taken in the said cause, some of them purporting to be 
 made by persons styling themselves relations of A. B., others styling them- 
 selves servants in his famil}^, others styling themselves to be medical persons 
 attendant upon the family : and in their respective depositions stating facts, 
 and declaring that C. D. was the legitimate son of A. B., and that he was in 
 the family, of which they were respectively relations, servants, and medical 
 attendants, or reputed so to be. 
 
 First question : Ai-e the bill in equity, and the depositions respectively, or 
 any, and which of them, to be received in the Courts below upon the trial of 
 such ejectment {G. U. not claiming, or deriving in any manner, under either 
 the plaintiff or defendant in the said Chancery suits), either as evidence of facts 
 therein (alleged, denied, or) deposed to, or as declarations respecting pedigree ; 
 and are they, or any, and which of them, evidence to be received in the said 
 cause, that the parties filing the bill and making the depositions respectively 
 sustained the characters of uncle, relations, servants, and medical persons, 
 which they describe themselves therein sustaining? 
 
 Answer: Neither the bill in equity, nor the depositions, are to be received in 
 evidence in the Courts below, on the trial of the ejectment, either as evidence of 
 the facts therein (alleged, denied, or) deposed to, or as declarations respecting
 
 440 JUDICIAL DOCUMENTS. 
 
 r*440*44Tl *An answer in Cliancery is evidence as an admis- 
 sion upon *oatli/ but it is not evidence, except against 
 the party who made it, or to contradict his testimony in another 
 cause ;" for, with respect to others, it is res inter aliosJ If a man 
 r*J.4-71 ^'^^^^ answer in Chancery which is prejudicial to his es- 
 tate, it is not evidence against his alienee '/ *unless, indeed, 
 
 pedigree ; neither are any of them evidence that the parties filinj!; the bill, or 
 making the depositions respectively sustained the characters of uncle, relations, 
 servants, and medical persons, which they describe themselves therein sustain- 
 ing. The judges further added that it would not make any diiference, in their 
 opinion, if the bill, stated to have been filed by C. D., by his next friend had 
 been a bill seeking relief. 
 
 Second question : Whether any bill in Chancery can ever be received as evi- 
 dence in a Court of law, to prove any facts either alleged or denied in such 
 bill? 
 
 Answer: Generally speaking, a bill in Chancery cannot be received as evi- 
 dence in a Court of law, to prove any fact, either alleged or denied in such bill. 
 But whether any possible case might be put, which would form an exception 
 to such general rule, the judges could not undertake to say. 
 
 Third question : Whether depositions taken in the Court of Chancery in con- 
 sequence of a bill to perpetuate the testimony of witnesses, or otherwise, would 
 be received in evidence to prove the facts sworn to in the same way and to the 
 same extent as if the same were sworn to at the trial of an ejectment by wit- 
 nesses then produced ? 
 
 Answer : Such depositions would not be received in evidence in a Court of 
 law, in any cause in which the parties were not the same as in the cause in the 
 Court of Chancery ; or did not claim under some or one of such parties. From 
 2 Sel. N. P. 712. 
 
 ^ Gilb. Law of Ev. 106 ; Godb. 326. But although it is" evidence against the 
 party making the admission, and those who claim under him, it is not evidence 
 as an admission of the truth of what he states that he heard another person say 
 injurious to his title: Lord Trimlestown v. Kemmis, 9 CI. & F. 780. Nor is a 
 declaration of pedigree made in answer in Chancery to support a claim of right 
 put forward by the party who made it. Nor, semhle, if the answer is an answer 
 which has not been filed: Wharton Peerage, 12 CI. & F. 295. An answer in 
 Chancery of the defendant, in a suit instituted against him by the prosecutor, is 
 evidence against him on an indictment for a conspiracy : i?. v. Goldshede, 1 C. 
 & K. (47 E. C. L. R.) 657. 
 
 * Eiver v. Ambrose, 6 D. & R. (16 E. C. L. R.) 127. An examined copy of the 
 evidence is in such case sufiicient: Ibid.; Countess of Dartmouth v. liobcrts, 16 
 East 334. 
 
 ' GoodrU/ht v. Moss, Cowp. 591. 
 
 8 Salk. 2S6 ; B. N. P. 238 ; although it be made before alienation : Ford v. 
 Lord Grey, 6 Mod. 44 ; but sec Countess of Dartmouth v. Roberts, 16 East 334, 
 infra, p. 443. An answer in Chancery relating to an advowson, filed by a per- 
 son formerly seised of it, and through whom the party against whom it was 
 sought to be used claimed, but made twenty years after the former had con-
 
 ANSWER IN CHANCERY. 442 
 
 the plaintiff make it evidence by producing it first.'' As ■vvlierc in an 
 issue out of Chancery to try the terms of an agreement, wliieh was 
 proved by one witness, but denied by tbe defendant, the witness be- 
 ing dead before the trial, the plaintiff was under the necessity of 
 producing the bill and answer in order to read his deposition, and by 
 that means made the whole answer evidence, and it was read for the 
 defendant.' So the answer of an infant by guardian cannot be read 
 against him on a trial at law,-" for the law out of tenderness to infants 
 will not permit them to be prejudiced by the oath of a guardian;'' 
 but it seems that the answer of the guardian for the infant may 
 afterwards be used as evidence against himself, for it is the answer 
 of the guardian and not of the infant.' The same objection does 
 not seem to apply to an answer made by a woman during coverture, 
 if offered in evidence after the death of the husband. In the case 
 of Wrottesley v. Bendish,"^ the Lord Chancellor said that he would 
 give no opinion on the point, whether such an answer Avould be evi- 
 dence or not." But in the case of Ilodson v. Merest," it was held 
 
 that the joint answer of *tlie husband and wife could not be 
 
 . . . . r*4431 
 
 read against the wife. The ground of objection to admit- ^ ^ 
 
 ting such an answer seems to be, that the wife was at the time under 
 
 the dominion of the husband, and not a free agent ; but if the answer 
 
 veyed away his interest, was held inadmissible : Gully v. Bisho]) of Exeter, 5 
 Bing. (15 E. C. L. R.) 171 ; and 2 M. & P. (17 E. C. L. R.) 266 ; see Dead;/ v. 
 Harrison, 1 Stark. C. (2 E. C. L. R.) 60. The distinction seems to be between 
 mere collateral representations and those which possess a legal eifect and oper- 
 ate in law, or are acts accompanying the possession, for such, as in the case of 
 tenants, &c., seem to be always admissible. 
 
 "B. N. P.238. 
 
 ' Bourne v. Sir T. (Vhitmore, Salop 1747. 
 
 J 2 Vent. 72 ; 3 Mod. 259 ; Eccleston v. Petty, Carth. 79. As to an admission 
 by guardian, see Cowling v. Ely, 2 Stark. C. (3 E. C. L. R.) 366 ; and 7 M. & 
 W. 408 ; 13 M. & W. 646 ; but see Str. 548. But the answer of a minor by his 
 mother and guardian, may be read against the mother in a cause which she de- 
 fends in a different capacity : Beasley v. Magrath, Sch. & Lef. Rep. 34. 
 
 ^ Gilb. Law of Ev. 51 ; 2 Vent. 72 ; 3 Mod. 259 ; Carth. 79 ; Salk. 350 ; Vern. 
 60, 109, 110. 
 
 ' 3 P. Wms. 237 ; Carth. 7, 9 ; Beasley v. Magrath, supra, note {j). 
 
 " 3 P. Wms. 235. 
 
 ° It was objected, that an answer by the wife, whilst under the power of the 
 husband, would be of no more use than the answer of an infant. 
 
 " 9 Pri. 566 ; see Elston v. Wood, 2 Myl. & K. 678 ; Barron v. Grillard, 3 
 Ves. & Bea. 166. In Callow v. Hawle, 17 L. J., Ch. 71, Knight Bruce, V. C. 
 allowed a married woman's answer, put in by her jointly with her husband, to 
 be read against her as to her separate estate.
 
 440 JUDICIAL DOCUMENTS. 
 
 r*44.0 *44n *An answer in Chancery is evidence as an admis- 
 sion upon *oatli/ but it is not evidence, except against 
 the party who made it, or to contradict his testimony in another 
 cause ;® for, with respect to others, it is 7'es inter aliosJ If a man 
 V^lioi ^^^I'^G answer in Chancery wliich is prejudicial to his es- 
 tate, it is not evidence against his alienee ;^ *unless, indeed, 
 
 pedigree ; neither are any of them evidence that the parties filing; the hill, or 
 makinf;; the depositions respectively sustained the characters of uncle, relations, 
 servants, and medical persons, which they describe themselves therein sustain- 
 ing. The judges further added that it would not make any difference, in their 
 opinion, if the bill, stated to have been filed by C. D., by his next friend had 
 been a bill seeking relief. 
 
 Second question : "Whether any bill in Chancery can ever be received as evi- 
 dence in a Court of law, to prove any facts either alleged or denied in such 
 bill? 
 
 Answer: Generally speaking, a bill in Chancery cannot be received as evi- 
 dence in a Court of law, to prove any fact, either alleged or denied in such bill. 
 But whether any possible case might be put. which would form an exception 
 to such general rule, the judges could not undertake to say. 
 
 Third question : Whether depositions taken in the Court of Chancery in con- 
 sequence of a bill to perpetuate the testimony of witnesses, or otherwise, would 
 be received in evidence to prove the facts sworn to in the same way and to the 
 same extent as if the same were sworn to at the trial of an ejectment by wit- 
 nesses then produced ? 
 
 Answer : Such depositions would not be received in evidence in a Court of 
 law, in any cause in which the parties were not the same as in the cause in the 
 Court of Chancery ; or did not claim under some or one of such parties. From 
 2 Sel. N. P. 712. 
 
 * Gilb. Law of Ev. 106 ; Godb. 326. But although it is- evidence against the 
 party making the admission, and those who claim under him, it is not evidence 
 as an admission of the truth of what he states that he heard another person say 
 injurious to his title: Loi-d Trimlestown v. Kemmis, 9 CI. & F. 780. Nor is a 
 declaration of pedigree made in answer in Chancery to support a claim of right 
 put forward by the party who made it. Nor, semble, if the answer is an answer 
 which has not been filed : Wharton Peerage, 12 CI. & F. 295. An answer in 
 Chancery of the defendant, in a suit instituted against him by the prosecutor, is 
 evidence against him on an indictment for a conspiracy : R. v. Goldshede, 1 C. 
 & K. (47 e1 C. L. R.) 657. 
 
 * Ewer V. Ambrose, 6 D. & R. (16 E. C. L. R.) 127. An examined copy of the 
 evidence is in such case sufficient: Ibid. ; Countess of Dartmouth v. Roberts, 16 
 East 334. 
 
 ' Goodrujht v. Moss, Cowp. 591. 
 
 8 Salk. 2<S6 ; B. N. P. 238 ; although it be made before alienation: Ford v. 
 Lord Orel/, G Mod. 44 ; but see Countess of Dartmouth v. Roberts, 16 East 334, 
 infra, p. 443. An answer in Chancery relating to an advowson, filed by a per- 
 son formerly seised of it, and through whom the party against whom it was 
 sought to be used claimed, but made twenty years after the former had con-
 
 ANSWER IN CHANCERY. 442 
 
 the plaintiff make it evidence by producing it first.'' As ■where in an 
 issue out of Chancery to try the terms of an agreement, which was 
 proved by one witness, but denied by the defendant, the witiicss be- 
 ing dead before the trial, the plaintiff was under the necessity of 
 producing the bill and answer in order to read his deposition, and by 
 that means made the whole answer evidence, and it was read for the 
 defendant.' So the answer of an infant by guardian cannot be read 
 against him on a trial at law,' for the law out of tenderness to infants 
 will not permit them to be prejudiced by the oath of a guardian;'' 
 but it seems that the answer of the guardian for the infant may 
 afterwards be used as evidence against himself, for it is the answer 
 of the guardian and not of the infant.' The same objection does 
 not seem to apply to an answer made by a woman during coverture, 
 if offered in evidence after the death of the husband. In the case 
 of Wrottesleij v. Bendish,"' the Lord Chancellor said that he would 
 give no opinion on the point, wdiether such an answer w^ould be evi- 
 dence or not." But in the case of Ilodson v. Meresi,° it was held 
 
 that the joint answer of *the husband and wife could not be 
 
 . . . . r*4431 
 
 read against the wife. The ground of objection to admit- ^ J 
 
 ting such an answer seems to be, that the wife Avas at the time under 
 
 the dominion of the husband, and not a free agent ; but if the answer 
 
 veyed away his interest, was held inadmissible : Gully v. Bishojy of Exeter, 5 
 Bing. (15 E. C. L. R.) 171 ; and 2 M. & P. (17 E. C. L. R.) 266 ; see Deadi/ v. 
 HariHson, 1 Stark. C. (2 E. C. L. R.) 60. The distinction seems to be between 
 mere collateral representations and those which possess a legal effect and oper- 
 ate in law, or are acts accompanying the possession, for such, as in the case of 
 tenants, &c., seem to be always admissible. 
 
 ^ B. N. P. 238. 
 
 ' L'ounie v. Sir T. (Vhitmore, Salop 1747. 
 
 J 2 A^ent. 72 ; 3 Mod. 259 ; Eccleston v. Petty, Carth. 79. As to an admission 
 hj guardian, see Cowllny v. Ely, 2 Stark. C. (3 E. C. L. R.) 366 ; and 7 M. & 
 W. 408 ; 13 M. & W. 646 ; but see Str. 548. But the answer of a minor by his 
 mother and guardian, may be read against the mother in a cause which she de- 
 fends in a different capacity : Beasley v. Magrath, Sch. & Lef. Rep. 34. 
 
 ^ Gilb. Law of Ev. 51 ; 2 Vent. 72 ; 3 Mod. 259 ; Carth. 79 ; Salk. 350 ; Yern. 
 60, 109, 110. 
 
 ' 3 P. Wms. 237 ; Carth. 7, 9 ; Beasley v. Magrath, supra, note {j). 
 
 ■" 3 P. Wms. 235. 
 
 ° It was objected, that an answer by the wife, whilst under the power of the 
 husband, would be of no more use than the answer of an infant. 
 
 ° 9 Pri. 566 ; see Elston v. Wood, 2 Myl. & K. 678 ; Barron v. Grillard, 3 
 Ves. & Bea. 166. In Callow v. Hawle, 17 L. J., Ch. 71, Knight Bruce, V. C. 
 allowed a married woman's answer, put in by her jointly with her husband, to 
 be read against her as to her separate estate.
 
 413 JUDICIAL DOCUMENTS. 
 
 was adverse to the interest of the liusband, a presumption of duress 
 cannot arise. An answer by one defendant is not evidence against 
 another, for no one is bound by the acts or declarations of another 
 without his privity. ^ But an answer by one partner is evidence 
 against another as to partnership liabilities, since there is a privity 
 and community of interest, and each, for such purposes, is the agent 
 of the other; since, however, this depends on the privity of interest, 
 the partnership must be proved aliunde.'^ So the answer of a party 
 is evidence against one who claims under him. Thus, in an action for 
 not setting out tithe, copies of a bill and answer, in a suit by the vicar 
 for the tithe of hay against S. L., then owner and occupier of the 
 close, and from Avhom the defendant purchased, denying the vicar's 
 right, and setting up a right in the ancestor of the plaintiff, were held 
 to be evidence against the defendant."^ 
 
 P Vide tit. Admissions; Wijch v. Meal, 3 P. Wms. 31] ; 12 Ves, 361. Upon a 
 question of the v\^\t of a lord of a manor to wreck, held that the answers of 
 persons, some tenants of the manor, to a commission issued by a former lord, 
 stating the title of the lord, were inadmissible, the right being of a private na- 
 ture, and the parties making the declaration possessing no peculiar means of 
 knowledge : Talbot v. Lewis, 1 Cr., M. & R. 495 ; 6 C. & P. (25 E. C. L. R.) 605. 
 
 1 Vide tit. Admissions — Partners; Wood v. Braddick, 1 Taunt. 104; Lucas 
 V. De la Cou7\ 1 M. & S. 250 ; Grant v. Jackson, 1 Peake, C. 203 ; Pritchard v. 
 Draper, 1 R. & Myl. 191. 
 
 ^ Conntess o^f Dartmouth v. Roberts, 16 East 334; although the vicar aban- 
 doned the suit, and no decree was made, Lord Ellenborough observed : " This 
 appears to me not to be res inter alios, but inter cosdem acta, and was not only 
 evidence, but strong evidence against the defendant, who stood in the same 
 place by derivation of the title and legal obligation as the former occupier of 
 the same land ; and that former owner, on his oath, in a suit against him by 
 the vicar, has declared that the tithe is due to the rector and not to the vicar; 
 and now that same person in effect (that is, the present owner, who purchased 
 of the former owner the very lands over which tithes are now claimed) is 
 decrying the title of the rector in favor of the vicar." See also Benson v. 
 Olive, 2 Gwill. 701; Earl of Sussex v. Temple, 1 Ld. Raym. 310; Travis \. 
 Challoner, 3 Gwill. 1237; Ashbrj v. Power, Ibid. 1259; Bishop of Meath v. 
 Winchester, 3 Ring. N. C. (32 E. C. L. R.) 183 ; Crease v. Barrett, 1 Cr., M. & 
 R. 932. 
 
 ' The answer of one defendant is not in general evidence against his co- 
 defendant: Field et al. v. Holland et al., 6 Cranch 8 ; Grant v. Bisset, 1 Caine 
 112; Clark'' s Ex'ors. v. Van Itiemsdyk, 9 Cranch 153 ; Leeds v. Marine Ins. Co. 
 (f Alexandria, 2 Wheat. 380; Uoomes v. Smock, 1 Wash. 389; Phoenix v. As- 
 sii/uees of Li(/rahani, 5 Johns. 412. But this rule does not apply to a case when 
 the other defendants claim through him or when they are all proved to be 
 partners in th(! same transaction : Field el al. v. Holland et al. ; Clark's Ex^ors. 
 v. Van Jieimsdijk, ubi sup. ; Van Reimsdyk v. Kane et al., 1 Gall. 035 ; see also
 
 ANSWER IN CHANCERY. 444 
 
 *It is a jreneral rule, that tlie party avIio reads an answer ^ , 
 
 . . . . r*4441 
 
 makes the whole of it evidence ;' for it is read as the sense •- -• 
 
 of the party himself, which must be taken entire and unbroken.^ 
 Hence, if upon exceptions taken, a second answer has been put in, 
 the defendant may insist upon having that read to explain what he 
 swore in his first answer.' But where the evidence of a witness was 
 read merely in order to show tliat he was incompetent, the whole was 
 not evidence, but only so much as showed that he was incompetent." 
 And where depositions in a suit in equity are given in evidence at 
 law, and the bill and answer are put in to show that the depositions 
 are admissible, the opposite counsel cannot refer to the bill and 
 answer in his address to the jury." For the judge only refers to 
 them for the purpose of determining whether the depositions are evi- 
 dence by seeing what was in issue in the suit." xVlthough the whole 
 
 of an answer must in general be read, the *rule decides ^ . . ^ 
 ... . . . r*44ol 
 
 nothing as to the credibility of any fact which it contains, •- -" 
 
 and this must depend upon circumstances. Where the answer 
 charges the defendant by the admission of one fact, and also dis- 
 charges him by the statement of a distinct and further fact, the rule 
 
 ' Barne v. Whifmore, Bac. Abr., Ev. F. ; Earl of Bath v. Battersea, 5 Mod. 
 9 ; Lynch v. Gierke, 3 Salk. 1.53 ; see Bermon v. Woodbridije, Doug. 781, stqjra ; 
 and Partington v. Butcher, 6 Esp. C. 6G ; and tit. Limitations : Earl of Mon- 
 tague V. Lord Preston, 2 Vent. 170; Baiidle v. Blackburn, 5 Taunt. (1 E. C. L. 
 R.) 245; Pennell v. Meyer, 2 M. & Rob. 99. Where the pUiintiff in equity reads 
 a passage in the answer as evidence of a particuhir fact, the defendant cannot 
 read subsequent matter, although connected by conjunctive particles, unless it 
 be explanatory of the passage read by the plaintiff: Davis v. Spurling, 1 Russ. 
 &M. 68; see also B. N. P. 2.38; 2 Vent. 194; 1 Ch. Ca. 194; Gil'b. Law of 
 Ev. 44. 
 
 *B. N. P. 237 ; R. v. Carr, 1 Sid. 418. 
 
 " Sparing v. Drax, 27, c. 2, C. B. ; Trial at Bar, Bac. Abr., Ev. F. A suf- 
 ficient reason for this seems to be that it is not evidence in the cause, but for 
 the court only. 
 
 " Chappel V. Purday, 14 M. & W. 303. 
 
 ^ Ibid. 
 
 Bartlett v. Marshall, 2 Bibb 470. Whenever the confession of any party would 
 be good evidence against another, in such case his answer d fortiori may be 
 read against the latter: per Story, J., 1 Gall. ii6i sup.; Kiddie \. Dcbrutz, 1 
 Ilayw. 421, s. p. M. 
 
 ' Where an answer in chancery is given in evidence in a court of law, the 
 party is entitled to have the whole of his answer read ; and it is to be received 
 as prima facie evidence of the truth of the facts stated in it — open, however, 
 to be rebutted by the opposite party: Lawrence v. Ocean Ins. Co., 11 Johns. 
 269 ; see Hoffman et al. v. Smith, 1 Caines 157. M.
 
 445 JUDICIAL DOCUMENTS. 
 
 has been said to be, that what is admitted need not be proved by the 
 plaintiff, but the defendant must make out his fact in discharge '/ and 
 therefore -where the executor, in an ansAver to a bill by creditors 
 for an account of the personal estate, admitted the receipt of <£100, 
 but alleged that it had been given to him by the testator, for his 
 trouble in the testator's business, it was held, that the defendant was 
 bound to make out, by proof, that which he insisted upon by way of 
 avoidance ; since it was probable that he admitted the fact out of 
 apprehension that it might be proved, and therefore it ought not so 
 far to profit the party as to give credit to the statement in avoidance. 
 But the distinction was taken, that if the admission and discharge 
 had been one entire fact, as, if tlie defendant had said that the tes- 
 tator had given him XlOO, it ought to have been admitted, unless 
 disproved, because nothing of the fact charged was admitted.^ In 
 courts of law, however, the rule is, that if a party read the defend- 
 ant's answer, the effect is tu make him a witness in the cause, and to 
 submit the credibility of all the facts stated to the consideration of 
 the jury ;'^ *but it will not, it seems, operate to make a state- 
 L J mcnt evidence which is in itself inadmissible; as where it 
 rests upon mere hearsay by the party who made the answer.'' 
 
 ^In Equity, B. N. P. 237. Where a party (in equity) reads a passage from 
 the defendant's answer, he reads all the facts stated in that passage; if it refers 
 to any other passage, or facts stated in any other passage, that must be read, 
 but only for the purpose of explaining the former ; and if new facts are stated 
 in the passage so referred to which must in grammatical construction be read 
 for the purpose of explanation, the facts and circumstances so introduced are 
 not to be considered as read : Bartlett v. G'lUard, 3 Russ. 157. 
 
 ^ B. N. P. 237 l per Cowper, C, Hill. Vac. 1707. 
 
 ' Roe d. Pellatt v. Ferrars, 2 B. & P. 542. The admissions made must be con- 
 strued by the court; and the whole admission must be laid before the jury as one 
 entire writing ; but they are not bound to believe the whole of it, and ought to 
 be allowed to contrast it with the other evidence in the case : Baildon v. Walton, 
 1 Ex. 017, decided in Cam. Scac. on a bill of exceptions. So, in an action of 
 trespass against two defendants, one of whom was keeper of the king's prison, 
 and the other a secretary of state, the plaintiff, in proof of the alleged acts of 
 trespass, gave in evidence a return by one defendant to a writ of habeas corpus, 
 in Avhich that defendant stated that he had committed the acts in question in 
 obedience to certain orders made by his co-defendant. The defendants there- 
 upon called in aid the evidence contained in tliat document in support of certain 
 pleas of justification ; and the court held that the return was evidence for the 
 defendants in support of the pleas, as well as against them in proof of the tres- 
 pass, and justified a verdict for them upon the pleas of justification : Cobhett v. 
 Oven, 4 Ex. 729. 
 
 '' See Roe d. Pe/lail v. Ferrars, 2 B. & P. 542, and the observations of Cham- 
 bre, J., 2 B. & P. 548 ; and Parke, B., 1 Ex. 020 ; Gilb. Law of Ev, 44.
 
 ANSWER IN CnANCERY. 446 
 
 A copy of a letter written by tbe plaintiff's agent, and referred to 
 in an answer by tbe plaintiff to a bill of discovery filed by anotber 
 party, in wbicb tbe original letter was not filed, but tbe copy in 
 question was delivered by tbe plaintiff's solicitor in tbe suit for dis- 
 covery, may be read in evidence witbout reading tbe plaintiff's an- 
 swer." 
 
 ' *An answer is proved by producing tbe bill and answer,*^ r*j^j.7"i 
 or admitted copies, or by proof of examined copies.* In I- -' 
 civil cases (it is said) it will be presumed tbat the answer was upon 
 oath ;*■ but since tbe answer in civil cases operates merely by way of 
 admission, it is sufficient to prove it to be the answer of tbe party, 
 and it is not necessary in civil cases to produce tbe original answer, 
 and to prove it to have been signed by tbe defendant.^ If on proof 
 
 " B.^ an underwriter, filed a bill of discovery against A.^ an assured, and W., 
 his aiient, who had effected the insurance ; A. and W. put in their answers, in 
 which they referred to a letter written by W. on the subject of the insurance. 
 The original was not produced, but to save time and expense it was agreed that 
 a copy should be inspected, which was done, and a copy taken by the under- 
 writer. On an action brought by A. against another underwriter, it was held 
 that the latter was entitled to read the copy in evidence without reading ^.'s 
 answer. For whether it be or be not necessary to read an answer in Chancery 
 for the purpose of making documents evidence which may be annexed to it, the 
 rule would not apply to the case in question, for the letter was not before the 
 Court of Chancery. And Lord Tenterden observed : "I should at present think 
 it a very strong proposition to say that the answer must at all events be read, 
 though having no connection with the case in which the documents are pro- 
 duced ; but here, at least, we think the copy in question was admissible without 
 the answer:" Long v. Champion^ 2 B. & Ad. (22 E. C. L. R.) 284. In an action 
 against the sheriff for a false return of nulla bona to an execution issued against 
 the goods of E., the latter having filed a bill in Chancery, in which suit an order 
 had been made that all letters written by E. inter alia, should be brought into 
 court ; held that although the defendant might give in evidence the order as an 
 act of court not affecting the right of either parties, yet the letters of E. were 
 inadmissible without the bill and answer ; it not being proposed to put in with 
 them any letter written by the plaintiff in reply, the answer might explain or 
 wholly neutralize the effect of such letters : Hewitt v. Piggott, 5 C. & P. (24 E. 
 C. L. R.) 77. 
 
 ^ Bac. Ab., Ev. F. The bill ought to be produced, because it may be material 
 to explain the answer. 
 
 " Ewer v. Ambrose, 4 B. & C. (10 E. C. L. R.) 25; Hennell v. Lr/on, 1 B. & 
 Aid. 182; Eees v. Bowen, 1 McCl. & Y. 383. 
 
 f Bac. Abr., Ev. F. ; B. N. P. 238, 239 ; see Crooke v. Bowling, 3 Doug. (26 
 E. C. L. R.) 77 ; Jameses case, 1 Show. 327. 
 
 8 Lady Dartmotith v. Roberts, 16 East 334 ; Hodgkinson v. Willis, 3 Camp. 
 401 ; Ewer v. Ambrose, supra; Uighjield v. Peake, 1 M. & M. (22 E. C. L. R.) 
 109, supra; Studdy v. Sanders, 2 I>. & R. (16 E. C. L. R.) 347 ; liees v. Bowen, 
 27
 
 447 JUDICIAL DOCUMENTS. 
 
 of the copies the names and characters of the parties corresponrl, 
 
 that is sufficient primd facie proof of the identity of the parties, and. 
 
 the burthen of repelling the presumption lies on the objecting party ;*' 
 
 .-^..r^-, but it is otherwise in a criminal proceeding on *an indict- 
 
 r 4481 • . 
 
 L -J ment for perjury, or an action for malicious prosecution, 
 
 ■which is in the nature of a criminal proceeding,* 
 
 But it is sufficient to produce the examined copy^' of the answer 
 of the witness in equity, in order to contradict his testimony, for it 
 cannot be regarded as a criminal proceeding. On proof of search 
 for the bill by the officer in the proper office, and that it cannot be 
 found, the answer has been allowed in evidence without proof of the 
 bill.'^ 
 
 A man's voluntary affidavit is admissible against himself, and if 
 offered as an affidavit must be proved to have been sworn ;* but 
 
 1 McCl. & Y. 383. In the case of Dartnall v. Ilcnvard, R. & M. (21 E. C. L. R.) 
 169, it was held, that for the purpose of identifying the original answer, of which 
 an examined copy was produced, as the answer of the defendant, a witness who 
 had seen the original was allowed to prove that it was in the handwriting of 
 the defendant, though it was not produced. Although the bill be lost, the an- 
 swer will still be evidence, as an admission under the defendant's hand: 1 Ford's 
 MSS. 145. 
 
 ^ Hennell v. Lij07i, 1 B. & Aid. 182 ; see 1 Ld. Raym. 154 ; 2 Bl. 1190. Note, 
 that the defendant in Hennell v. Lyon was Charles Lyon, sued as the administra- 
 tor of Mary Lyon, and by h's plea he had admitted himself to be such administra- 
 tor, and the copy of the answer showed that the bill was filed against Charles 
 Lyon, as administrator of Mary Lyon. The judges relied on the coincidence of 
 description, and Lord Ellenborough seems to have considered it as a matter of 
 public convenience to receive such evidence in civil cases without further proof. 
 And see -Greenshields v. Crawford, 9 M. & W. 314; Simpson v. Dismore, 9 M. 
 & W. 47; liiissell v. Smyth, 9 M. & W. 818; Smith v. Henderson, 9 M. & W. 
 798 ; Sewell v. Evans, Roden v. Ryde, 4 Q. B. (45 E. C. L. R.) 626. Identity 
 may be evidenced where necessary by proof of the party's handwriting : see R. 
 v. Benson, 2 Camp. 508; R. v. Morris, 2 Burr. 1189; Sayer v. Glosso}), 2 Ex. 
 409 ; Dartnall v. Howard, Ry & M. (21 E. C. L. R.) 169 ; Scott v. Lewis, 7 C. & 
 P. (32 E. C. L. R.) 349 ; Price's case, 1 Leach 323 ; Bendi/s case, Ibid. 330; and 
 tit. Handwriting — Perjury. 
 
 » 16 East 348 ; R. v. Morris, 1 B. & A. 182; 7.'. v. Benson, 2 Camp. C. 508 ; 
 see Vol. n., tit. Perjury. The fact of swearing may be proved by evidence of 
 the Master's handwriting to the /«/■«<, without calling him: R. v. Benson, 2 
 Camp. 508; R. v. Morris, 2 Burr. 1189. The jurat is evidence of the place 
 where the oath was taken: R. v. Spencer, Ry. & M. (21 E. C. L. R.) 97; but 
 not conclusive: Emdens case, 9 East 437. It was held sufficient evidence in 
 R. V. Turner, 2 C. & K. (61 E. C. L. R.) 732, on ar\ indictment for perjury. 
 
 J Ewer V. Ambrose, 4 B. & C. (10 E. C. L. R.) 25 ; or an admitted copy : Davies 
 V. Davies, 9 C. & P. (38 E. C. L. R.) 252. 
 
 " Gill). Law of Ev. 49. ' B. N. P. 2.38.
 
 BILL AND ANSWER — HOW PROVED. 448 
 
 proof of the party's signature makes it admissible as a note or letter, 
 ■without further proof.'" *Wliere an affidavit has been made p^ . .q-, 
 in the course of a cause, proof that such a cause was pend- ^ J 
 ing and that such affidavit was used by the party, would be sufficient 
 evidence to prove the affidavit in a civil suit." A copy of a volun- 
 tary affidavit is not admissible in evidence, for it has no relation to a 
 court of justice." In order to prove an affidavit of the defendant in 
 the same court in which the action is tried, it is sufficient to prove an 
 examined copy, without proving the handwriting of the party, or 
 that he was sworn.^ 
 
 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 to be a true copy.'^ Indeed the copy of 
 the rule given out by the Master is the rule.'' 
 
 A judge's order is proved by the order itself, the court being 
 bound to take judicial notice of the signature of the judge,^ or by 
 the rule of court thereon.' An order, however, of justices of assize 
 for restitution of premises delivered up to the landlord by order of 
 magistrates, under 11 Geo. II., c. 19, s. 16, is an order, not of the 
 court, but of the individual judges, and therefore is not proved by a 
 certificate signed by the clerk of assize, and stamped with the stamp 
 of his office ; and it seems that such orders should be signed by the 
 judges themselves." 
 
 Next, as to pleadings in an action at law. Where there 
 
 *are several counts in the same declaration, or several dis- 
 
 r*4501 
 tinct pleas, an allegation in one count or plea cannot be '- -^ 
 
 insisted upon by the adversary as an admission of a fact for a pur- 
 pose distinct from the proof of that count, or of the issue upon the 
 plea ; for every issue is to be distinctly tried. Thus, upon a decla- 
 ration in assumpsit, by a landlord against a tenant for breach of 
 
 •" Ibid. 
 
 ° Ibid., and Show. 2*J7 ; and perhaps in a criminal proceeding. 
 
 ° B. N. P. 338. And therefore a copy of an affidavit made by the defendant 
 in Chancery, of his being worth 2500Z., was rejected by Lord Raymond, when 
 offered for the purpose of increasing the damages ; and the plaintiff was obliged 
 to send for the original : Chambers v. Robinson, B. N. P. 338. 
 
 P Cameron v. LhjUfoot, 2 Bl. R. 11 9U. 
 
 ^ Selby V. Harris, 1 Lord Raym. 745. 
 
 ' Still V. Halford, 4 Camp. 17 ; Berney v. Bead, 7 Q. B. (53 E. C. L. R.) 79 ; 
 per Wilde, C. J., Streeter v. Bartlett, 7 C. B. (62 E. C. L. R.) 564. 
 
 "8 &9 Vict. c. 113,8.2. 
 
 ' Still V. Halford, 4 Camp. 17 ; Berney v. Read, 7 Q. B. (53 E. C. L. R.) 79. 
 
 " The Queen v. Sewell, 8 Q. B. (55 E. C. L. R.) 161.
 
 450 JUDICIAL DOCUMENTS. 
 
 good husbandry, where there is one count which professes to be 
 founded on a special written agreement, and a second upon an im- 
 plied contract, the defendant cannot insist upon the first count as evi- 
 dence that a written contract exists, so as to impose upon the plaintiff 
 the necessity of producing it ;'' and besides, every different count 
 professes to be founded upon a distinct ground of action. So where 
 a declaration contains two counts, and the defendant pays money 
 into court upon one, which the plaintiff accepts, the defendant can- 
 not read that count and the proceedings thereon to the jury to nega- 
 tive an allegation in the other count.^ So in trespass, a plea of 
 justification does not supersede the necessity of proving the trespass, 
 where the general issue is pleaded.^ In like manner where particu- 
 lars of a plea of set-off are given, the plaintiff cannot give them 
 in evidence for the purpose of showing that a payment taken credit 
 for therein disproves a plea of the Statute of Limitations ; for the 
 particulars are merely an explanation of the plea.*^ 
 
 The statements also of a party in a declaration or plea cannot, it 
 seems, be treated as confessions of the truth of the facts stated by 
 him.'' In the absence of an issue founded upon them, they are not 
 evidence in another action, even between the parties ; but in certain 
 r*4'^11 instances pleadings *may be evidence against a party of facts 
 alleged by his adversary. Thus the material facts alleged 
 by one party in a pleading, which are directly admitted by the op- 
 posite party, or indirectly admitted by taking a traverse on some 
 other facts, are evidence between them," and that conclusive ; but 
 only if the traverse is found against the party making it.** Form- 
 
 ^ By Le Blanc, J., Lancaster Sp. Ass. MSS. C. ; Harrington v. Macmorris, 5 
 Taunt. (1 E. C. L. R.) 228; 1 Marsh. (4 E. C. L. R.) 53; Vol. III., tit. Par- 
 ticulars. 
 
 y Gould V. Oliver, 2 M. & G. (40 E. C. L. R.) 208. 
 
 ' B. N. P. 298. ^ Burkitt v. Blanshard, 3 Ex. 89. 
 
 *> Boileau v. Rutlin, 2 Ex. 665. 
 
 " The question whether omitting to traverse a material fact is an admission of 
 that fact for all purposes regarding the issue arising from that pleading in that 
 action, is one of the greatest nicety ; thus it tias been held that to a plea to a 
 count on a bill, that it was obtained by fraud, and the plaintiff took it without 
 consideration, a replication traversing the latter allegation, and omitting any 
 notice of the other, throws on the plaintiff, by way of admission in the incep- 
 tion of the bill in fraud, the necessity of proving consideration in the first in- 
 stance : Binnham v. Stanley, 2 Q. B. (42 E. C. L. R.) 117; and per Alderson, 
 B., 13 M. & W. 144 ; but see contra per cnr. Edmunds v. Groves, 2 M. & W. 
 642; Bennion v. Davison, 3 M. & W. 179 ; Smith v. Martin, 9 M. & W. 304. 
 
 " 3 Ex. 681 ; Jiobins v. Lord Maidstone, 4 Q. B, (45 E. C. L. R.) 811.
 
 MIXED DOCUMENTS. 451 
 
 erly such an admission might arise from passing by a material state- 
 ment without notice, and hence arose the practice of making 
 protestation. A protestation is defined to be a saving to the 
 party who takes it, from being concluded bj any matter alleged 
 or objected against him on the other side, on which he cannot 
 take issue.* It is "an exclusion of a conclusion" that a party may 
 by pleading incur ; it is a safeguard to the party, which keepeth 
 him from being concluded by the plea he is to make, if the issue 
 be found for him.^ A protestation was of no use to the party who 
 took it, unless either the issue was found for him,^ or unless the 
 matter could not have been pleaded.'' Protestations are now ex- 
 cluded by the new rules, but a party is to have the same advantage 
 as if a protestation had been made. 
 
 A demurrer to a count or plea is only an admission of the facts 
 which are well pleaded, therefore if it be decided *in favor r;}: 1-9-1 
 of the party demurring, it cannot now be used as evidence 
 against him, and a demurrer to one special plea, on which no judgment 
 has been given, cannot be treated as an admission of the facts stated 
 in it to prove another plea.' A demurrer to a plea in equity is not 
 such an admission of the facts charged, as to be evidence of those 
 facts against the party unsuccessfully demurring, in a subsequent 
 action between the same parties.'' 
 
 III. Mixed Documents. 
 
 Documents which are partly of a public and partly of a private 
 nature, are court rolls, corporation books, and perhaps also within 
 the same class may be included the books of some joint-stock com- 
 panies. These, with respect to a particular class of society, may be 
 considered as public documents, because they proceed from an au- 
 thority which it recognizes ; but with respect to the rest of the com- 
 munity, they may be nothing more than mere private documents 
 resulting from no acknowledged authority. 
 
 Court rolls and customaries of manors are evidence between the 
 lord and the tenants, for they are the public rolls by which the in- 
 
 « Plowd. 276, b ; Graysbrook v. Fox, Finch 359, 361 ; 2 Wins. Saund. 103, a. 
 f Co. Litt. 124. 
 
 « Bro. Prot. 14 ; Co. Litt. 124 ; Plowd. 276, b. 
 " 2 Wms. Saund. 103, a. 
 
 ^Ingram v. Lawsoji, 9 Car. & P. (38 E. C. L. R.) 326; but see Gregory v. 
 Duke of Brunswick, 1 Car. & K. (47 E. C. L. R.) 24. 
 •^ Tompkins v. Ashhy, Moo. & Mai. (22 E. C. L. R.) 32.
 
 452 MIXED DOCUMENTS. 
 
 heritance of every tenant is preserved ; and thej are the rolls of the 
 Manor court, which was formerly a court .of justice.^ Such docu- 
 j-5j.,;.q-i ments handed "^down from remote times, and kept in the 
 muniments of the manor, are not, as far as regards the ten- 
 ants of the manor, to be regarded as res inter alios acta ; they are 
 documents to which all are privy. Custom is of the very essence of 
 a copyhold tenure ; and as reputation is evidence to prove a custom,™ 
 so are those documents which contain the solemn adjudications or 
 opinions of the homagers or tenant themselves, as to customary 
 rights, or which have been handed down from one generation to 
 another, and reputed to contain a true account of the manorial cus- 
 toms." Hence entries upon the court rolls are evidence to prove the 
 mode of descent, although no instances of persons having taken ac- 
 cording to that mode be proved ;" so they are to prove that procla- 
 mations have been madc^ A customary of a manor, which has been 
 handed down from steward to steward with the court rolls, is evi- 
 dence of the mode of descent within the manor, although not signed 
 by any one.'^ 
 
 ' Gilb. Law of Ev. 235; 4 T. R. 670; see tit. Judgments. Ancient present- 
 ments are not evidence for the lord, unless signed by a party in privity of estate 
 with the person against whom they are produced : Benett v. Coster, Burroagh, 
 J., Wilts Sum. Ass. 1817. Presentments by the homage, restricting the lord's 
 right, in respect of parcel of his demesne land, to turn so many cattle only on 
 the waste, not acted on, have no weight against an uniform contrary usage: 
 Arnndell v. Lord Falmouth, 2 M. & S. 440. Where the plaintiff claimed a 
 right in the soil of land adjoining his farm, it being contended that he had only 
 a commonable right, held that an ancient instrument in the nature of a pre- 
 sentment at the manor court by the freeholders, finding that the then owner of 
 the farm, and those claiming the right of the soil, had no separate right, but 
 only a right thereon, as the other freeholders, for commonable cattle, was in- 
 admissible in evidence, either as a presentment, the homage having no right to 
 decide upon a claim made by an individual to the freehold, or as an award, 
 the party not appearing to have submitted himself, or as evidence of reputa- 
 tion, being ^os^ litem motam ; and, semble, reputation could not affect a question 
 of private right: Eichards v. Bassett, 10 B. & C. (21 E. C. L. R.) 657. 
 
 «" VideXo]. II., tit. Custom. 
 
 " See Lord Kenyon's observations, JRoe v. Parker, 5 T. R. 26 ; 2 M. & S. 92 ; 
 and Chapman v. Coidan, 1 3 East 10 ; Doe v. Mason, 3 Wils. 63 ; Lord Carnar- 
 von V. Villehois, 13 M. & W. 313. 
 
 5 T. R. 26 ; 2 M. & S. 92. 
 
 P Doe V. nellier, 3 T. R. 162. 
 
 1 Denn v. Spray, 1 T. R. 466 ; see tit. Copyhold. So to support proof of a 
 custom for a lord of a manor to take only one heriot on the death of a tenant, 
 whatever the numljcr of holdings he might have, a paper purporting to be a 
 copy of an old decree of the Court of Chancery in a auit between a copyholder
 
 COURT ROLLS. 454 
 
 *Court rolls, containing a presentment of admittance r^c/ir^-i 
 upon surrender out of court, are primary evidence between 
 surrenderor and surrenderee to prove the surrender ; and conse- 
 quently the original surrender need not be produced." 
 
 The examined copy of a court roll" is admissible in evidence, upon 
 the same principle as the chirograph of a fine or enrolment of a 
 deed.' So a copy of a court roll under the hand of the steward is 
 good evidence to prove the copyholder's estate." An examined copy 
 of a particular entry in the court rolls of a manor is evidence with- 
 out producing the original, even where it may be presumed that the 
 books themselves contain other entries connected with the point in 
 issue.'' A surrender of copyhold lands *by deed out of court r:c4^r c-, 
 is evidenced by the copy, although the stat. 48 Geo. III. -* 
 
 c. 149, requires the deed and not the copy to be stamped.''' See 
 further on this subject. Vol. II., tit. Copyholds. 
 
 and the lord, produced by a witness who succeeded his brother as lord of the 
 manor, and who stated he had found it amongst his brother's papers, was held 
 to be admissible in evidence as against a subsequent lord, after evidence of an 
 ineffectual search for the original : Price v. Woodhouse, 3 Ex. 616. 
 
 ^ Doedem. Garrod v. Ollqi, 12 A. & E. (40 E. C. L. R.) 481. 
 
 ^Doe d. Bennington v. Hall, 16 East 208; Esp. C. 221 ; Comb. 157; R. v. 
 ^rt/«es, Ibid. 337. The originals are evidence, although unstamped: 16 East 
 208 ; 4 B. & Ad. (24 E. C. L. R.) 617 ; B. N. P. 247 ; so is an examined copy, 
 the copy referred to by the Stamp Act being that which is delivered by the 
 steward to the tenant : Doe v. Freeman., 12 M. & "W. 844. 
 
 *■ Per Holroyd, J., in Appleton v. Lord Brayhroohe, 6 M. & S. 38. 
 
 » B. N. P. 247 ; 16 East 208. 
 
 * Doe d. Churchwardens of Croi/don v. Cook, 5 Esp. C. 221 ; and see Style 450; 
 E. V. Shellei/, 3 T. R. 141 ; E. v. AUgood, 7 T. R. 746 ; E. v. Lucas, 10 East 235 ; 
 Bateman v. Phillips, 4 Taunt. 162. Court rolls, containing licenses to fish, 
 granted in the 17th century at certain rents, are admissible to prove a prescrip- 
 tive right to a certain fishery, claimed as appurtenant to a manor, without 
 showing the actual payment of those rents, where it appears -that during the 
 last century leases have been granted of the fishery, and that for the last forty 
 years the rents under the leases have been regularly paid, or that other acts of 
 ownership have been acquiesced in : Eogers and others v. Allen, 1 Camp. C. 109. 
 As to the right of inspecting Court rolls, see Vol. II., tit. Inspection. The 
 right to inspect does not depend on the pendency of a suit : R. v. Lucas, 10 East 
 235 ; but see E. v. AUgood, 7 T. R. 746, contra. An inspection will be granted 
 on a prima facie title ; 10 East 235, as to ascertain a right (to cut timber e. g.) 
 which the lord disputes : E. v. Toiver, 4 M. & S. 162. Where a lord of a manor 
 is indicted for a nuisance in not repairing the bank of a river, the Court will 
 not compel him to allow the prosecutor, even though he is a tenant of the 
 manor, to inspect the court rolls for the purpose of obtaining evidence in support 
 of the prosecution : E. v. Earl of Cadogan, 4 B. & Aid. (7 E. C. L. R.) 902. 
 
 y Doe v. Mee, 2 B. & Ad. (24 E. C. L. R.) 617 ; and see Doe v. Freeman, supra, 
 note (s).
 
 455 MIXED DOCUMENTS. 
 
 The books of a corporation,^ containing a register of their public 
 acts, are evidence as between the members of the body, or against 
 the body, for thev contain the rules and regulations to which they 
 are all subject, and to which all are privy. ^ But they are not evi- 
 dence for the corporation against a stranger.'' ^ 
 
 In the case of Marriage v. Laivrencc," where in an action for tres- 
 pass the issue was upon the right of the corporation of Maiden to 
 take certain tolls, it was held that an entry from the books of the 
 corporation, dated 18 Hen. VIII., purporting to contain the proceed- 
 ings of the corporation against the masters of two ships, who had re- 
 fused *to pay tolls, the seizure of the ships, and the submis- 
 L -I sion of the masters to the payment of a fine, and to have 
 been signed by the corporation clerk, was inadmissible, because the 
 entry was not of a public nature. But it was said that, if the sub- 
 ject of the entry had been of a public nature, the case would have 
 been different. 
 
 ^ For further details of the evidence respecting corporations and companies, 
 see Vol. II., tit. Corporations. 
 
 ^ See the case of Thetford^ 12 Vin. Abr. 90, pi. 16 ; and R. v. Mothersell, 
 Str. 93. 
 
 ^ Mayor of London Y. Lynn, 1 H. Bl. 214, n. ; The Mayor of King ston-upon-Hidl 
 V. Horner, Cowp. 102. Entries in corporation books in order to show that the 
 curate had been ar>oointed by the corporation were held inadmissible as evidence 
 to establish their right against the vicar: Attorney- General v. Warivick Corp., 
 4 Russ. 222. 
 
 ® 3 B. & Aid. 142 ; see The Mayor of King ston-upon- Hull v. Horner, Cowp. 
 103, where, in an action by the coi'poration for tolls, entries from the corpora- 
 tion books of the particulars of the tolls receivable to the use of the mayor, &c., 
 were read. Copies of an ancient schedule produced from the muniments of the 
 corporation, delivered to the toll collectors, and by which they collected, were 
 held admissible for the corporation, although it would have been otherwise if 
 not shown to have been so delivered from the corporation, however accurately 
 corresponding: Brett v. Beales, Moo. & M. (22 E. C. L. R.) 417. 
 
 ' The books of a corporation, when proved to be such, are evidence of its acts 
 and proceedings : Ovoings v. Speed, 5 Wheat. 420 ; Highland Turnpike Co. v. 
 McKean, 10 Johns. 154. They are evidence in dispute between its members, 
 but not against strangers: Commomvealth v. Woelper et al., 3 S. & R. 29. 
 Entries made by a clerk, in the books of trustees who are a corporation, are not 
 evidence in a cause in which they are interested : Jackson v. Walch, 3 Johns. 
 226 ; see Farmers'" and Mechanics'' Bank v. Boraeff, 1 Rawle 152. M. 
 
 See Fortin v. U. S. Wind Engine Co., 48 111. 451 ; Schell v. Second BJc, 14 
 Minn. 43 -, State v. Thomas, 64 N. C. 74 ; Mudgett v. Horrell, 33 Cal. 25 ; Glover 
 v. Jfnnter, 28 Ind. 185 ; Chase v. Sycamore R. R. Co., 38 111. 215 ; Graff v. Pitts- 
 burgh and SteuhenviUe R. R. Co., 7 Cas. 489; Haynes v. Brown, 36 N. H. 545; 
 Woonsocket R. R. Co. v. Sherman, 8 R. I. 577.
 
 CORPORATION BOOKS — HOW PROVED. 456 
 
 A customary, found in a book amongst the records of a corpora- 
 tion, was held to be evidence against the corporation. But in general, 
 unless papers relate to the proceedings of the corporation as a cor- 
 porate body, they are not evidence ; and, therefore, a letter found 
 in a corporation chest, in which A. B. was described to be of 
 another place, was held to be inadmissible on a question whether 
 A. B., at the time he did a corporate act, was an out-burgess or 
 not.*^ 
 
 Upon the same principle, the books of public companies,® or copies 
 of them, are evidence between those who are interested in them, as 
 against each other, or against the company ; as the books of the 
 East India Company, in a cause between the parties having stock 
 there.^ So the bank books,^ or copies,"" from them are evidence to 
 prove a transfer of stock in the public funds.' 
 
 To establish the book of a corporation in evidence, it should be 
 shown to have been publicly kept as such, and that the entries were 
 made by the proper officer. But *an entry made by one r* /in 7-1 
 who acts for the officer pro tempore, as during illness of the 
 town clerk, is evidence, if the fact be proved.'' On this ground, upon 
 a quo warranto, it was held that minutes of the proceedings of a cor- 
 poration, taken several years before by the prosecutor's clerk, and 
 not kept as a public book, had been properly rejected at the trial.' ^ 
 
 * B. V. Gwyn, Str. 401. 
 
 « Geary v. Hoskins, 7 Mod. 129 ; see 2 Str. 1005 ; 1 Wils. 240 ; 1 Bl. R. 40 ; 1 
 T. R. 689 ; Doug. 593 ; 3 Salk. 154. 
 
 ^ Breton v. Cope, Peake's C. 30. 
 
 e Mortimer v. MacCallan, 6 M. & W. 68. 
 
 ^ R. V. Mothersell, Str. 92 ; 12 Vin. Abr. 90, pi. 16. The usual mode of pro- 
 curing an inspection of corporation books is by rule, where an action is pending ; 
 by mandamus in other cases. A rule can only be granted where a cause is 
 pending, and only then for a limited inspection. For an unlimited inspection, 
 the course is by mandamus : R. v. Babb, 3 T. R. 579 ; Lynn Corporation v. 
 Denton, 1 T. R. 689 ; Barnstaple Corporation v. Lathey, 3 T. R. 303; see, further 
 on the subject, Vol. II., tit. Inspection. 
 
 ' See 7 & 8 Vict. c. 110, for the regulations aifecting private joint-stock compa- 
 nies and their books, and " The Companies Clauses Consolidation Act, 1845" (8 
 & 9 Vict. c. 16), for the regulations affecting companies for the execution of 
 works of a public nature, for which Acts of Parliament are obtained. 
 
 ^ R. V. Mothersell, Str. 92 ; 12 Vin. Abr. 90, pi. 16. 
 
 1 Str. 92 ; 12 Vin. Abr. 90, pi. 16. 
 
 ' Before corporation books can be admitted in evidence, it must be shown 
 that they are kept by the proper officer or some other person authorized to make 
 entries in his necessary absence : It is not sufficient to prove the books to be in
 
 457 MIXED DOCUMENTS. 
 
 The seal of a public corporate body need not be proved, as the seal 
 of an individual, by means of a witness who saw the seal affixed, &c., 
 to the instrument ; it is sufficient to show that the seal is the official 
 seal of the corporate body.™ As public seals are of a permanent 
 nature, it seems that they are not within the principle of the rule 
 which dispenses with the proof of private seals affixed to documents 
 thirty years old." The documents must be proved to have come from 
 the proper place of deposit. But in an action for a false return to a 
 7nandamus° it was held that a corporator was capable, as a depository 
 of the muniments, of being brought forward for the purpose of pro- 
 ducing them, subject to cross-examination by the *adversary, 
 L -• as to the custody of the document.^ And if the party ob- 
 jecting Avished to inquire as to the custody, the corporator might be 
 examined on the subject. "^ 
 
 "" Moises V. Thornton, 8 T. R. 307; Chadivick v. Bunting, Ry. & M. (21 E. C. 
 L. R.) 306. It has been held that the seal of the city of Loudon proves itself, 
 by Lord Kenyon : Woodmass v. Mason, 1 Esp. C. 53. The production of a sealed 
 instrument purporting to be a diploma of a degree conferred by the University 
 of St. Andrew's, and proof that a person calling himself the university libra- 
 rian, had shown in a room which he called the University Library a seal cor- 
 responding with instrument produced, was held to be sufl&cient evidence : Col- 
 lins V. Carnegie, 1 Ad. & E. (28 E. C. L. R.) 695. 
 
 ° R. V. Bathwick, 2 B. & Ad. (22 E. C. L. R.) 648. Where it was also held 
 that the seal of a bishop to an ordination was not to be regarded as his corporate 
 seal. But it is to be observed that a corporation may from time to time alter 
 its seal. 
 
 R. V. Netherthong, 2 M. & S. 337. 
 
 P As to the means of pi-ocuring an inspection of such documents, see tit. In- 
 spection. 
 
 •J Per Lord Ellenborough, R. v. Netherthong, 2 M. & S. 337, citing a case in 
 
 the handwriting of a person stated in the book itself to be the Secretary, if he 
 is not otherwise shown to be the proper officer : Highland Turnpike Co. v. 
 McKcan, 10 Johns. 154. A copy of an entry in a corporation book is not au- 
 thenticated by the seal of the corporation ; an examined copy must be produced : 
 Stoever v. Lessee of Whitman, 6 Binn. 416. The original corporation book is 
 good evidence in a suit by the corporation against one of its members, although 
 it is not under ike corporate seal : Fleming et al. v. Wallace, 2 Yeates 120. The 
 seal of a private corporation does not authenticate itself; it must be proved by 
 testimony : Dea v. Vreelandt, 2 Ilalst. 352 ; Leasure v. HiUegas, 7 S. & R; 313 ; 
 Foster v. Shaw, Ibid. 156 ; Jackson v. Pratt, 10 Johns. 381. A secretary of an 
 incorporated banking company, is not, in Massachusetts, a certifying officer ; a 
 copy, therefore, of the votes and proceedings of such corporation, certified by 
 him, is not evidence, unless it is sworn to. But semhle that an extra-judicial 
 affidavit is sufficient to authenticate such copy : Ilallowcll & Augusta Bank v. 
 Hamlin el al., 14 Mass. 178 ; see Rust v. Boston Mill Corporation, 6 Pick. 158.
 
 PRIVATE DOCUMENTS. 458 
 
 Bj the Municipal Corporation Act, 5 & 6 Will. IV., c. 7G, every 
 person is entitled, without fee, to inspect the freemen's roll at all 
 reasonable times, and the list of persons claiming to be inserted on 
 the burgess list, or objected to, at all reasonable hours, Sunday ex- 
 cepted, during the eight days next before the 1st of October ; and the 
 town clerk is moreover bound, at a certain price, to furnish copies of 
 these documents.'" The public accounts of the borough are open to 
 the inspection of the aldermen and councillors before audit ; and after 
 they have been audited and made up every year, every ratepayer is 
 at liberty to inspect the abstract of their contents, which the town 
 clerk must make ;^ and every burgess is entitled at all reasonable times 
 to inspect and take copies of the book in which minutes of the town 
 council are entered, and any order in council for payment of any 
 moncT 
 
 t 
 
 IV. — Private Documents. 
 
 Private writings and entries may, with a view to their operation in 
 evidence, be distinguished into those : First, To which the person 
 against whom they were offered was party or privy. Secondly, En- 
 tries made by third persons. And they may be considered, first, with 
 respect to their nature, admissibility and effect in evidence ; and, 
 secondly, with respect to the means of proof. Documents offered in 
 evidence against one who was a party or privy to them, are either 
 
 under seal or not under seal. All documents *to which a per- ^ , ^^^ 
 
 r 4591 
 son was party" or privy are in general admissible in evidence ^ ^ 
 
 against him, since they operate as acknowledgments or admissions 
 on his part, or that of another through whom he claims, that the 
 facts contained in them are true, particularly if the admission was 
 against the interest of the party so making it.^ Thus, upon a ques- 
 tion touching the right of presentation by the bishop, a case stated 
 by a former bishop for counsel's opinion, and found among the 
 family muniments of the latter's descendants, is admissible in evi- 
 
 which Lord Kenyon had so acted in an action for a false return of a man- 
 damus. 
 
 "■ Sect 5 & 17 ; a penalty of 50Z. is imposed for refusal, by s. 48. 
 
 « Sect. 93 ; and 1 Vict. c. 78. 
 
 * Sect. 69 ; and 1 Vict. c. 78. 
 
 " Lord Barrymore, Administrator v. Taylor, 1 Esp. C. 326, Kenyon, C. J., 1795; 
 and see Smith v. Young, 1 Camp. 439 ; Randle v. Blackburn, 5 Taunt. (1 E. C. 
 L. R.) 245. 
 
 ^ Bishop of Meath v. Marquis of Winchester, 3 Bing. N. C. (32 E. C. L. R.) 
 193 ; see Vol. II., tit. Admissions.
 
 459 PRIVATE DOCUMENTS. 
 
 dence against the former. All written contracts are made for the 
 express purpose of being afterwards used as evidence of the contract, 
 the only difference between sealed and parol contracts in this respect 
 being this — that the former are more solemnly authenticated, and 
 not so easily revoked. So essential is it that the rights of men 
 should be evidenced by documents of this nature, that the law itself 
 requires, in many instances, the evidence of a deed to notify and 
 establish the particular facts, and in many others renders a contract, 
 or memorandum in writing, essential for the same purpose. Thus 
 incorporeal rights, as to fairs, markets, and advowsons, cannot be 
 transferred except by grant/ and the provisions of the Statute of 
 Frauds in many instances render a note or memorandum in writing 
 necessary to the proof the contract.'' 
 
 In general, an admission under seal is conclusive upon the obligor, 
 and estops him from asserting or proving the contrary. Thus, if 
 a condition in a bond recite that a particular suit is depending in 
 the Court of King's Bench, the obligor is estopped from saying that 
 r*J.rm *^^^^'® ^^ "° ^^^^ ^"^^ *there.* So if the condition of a bond 
 L -■ be to perform the covenants in a particular indenture, he is 
 estopped from saying that there is no such indenture.^ So a grantor 
 is estopped by his deed from saying that he had no interest in the 
 thing granted." But although where a distinct statement of a par- 
 
 ^ See Gilb. Law of Ev. 88 ; Vol. II., tit. Prescription. And now leases for 
 more than three years, and certain other instruments, see 8 & 9 Vict. c. 106. 
 
 ^ 29 Car. II. c. 3. 
 
 » Cro. Eliz. 750 ; Com. Dig., Estoppel, A. 2 ; 5 Ex. 557. 
 
 '' 1 Rol. 872, 1. 30 ; Com. Dig., Estoppel, A. 2. For other instances, see tit. 
 Admissions. 
 
 " 2 T. R. 171. But the principle does not apply where the grantor is a trustee 
 for the public, and grants that which he was not authorized by the Act from 
 which he derives his authority : Ibid. But this is confined strictly to the case 
 in which he lias violated an Act of Parliament, which must be presumed to have 
 been known to the other party. Thus public trustees may be estopped by a re- 
 cital from alleging against their mortgagee of tolls that they had granted a prior 
 mortgage of them : Doe v. Home, 3 Q. B. (43 E. C. L. R.) 757 ; E. v. White, 4 
 Q. B. (45 E. C. L. R.) 111. If, however, it appear from any part of the recital 
 or deed that the grantor has no estate, or only a limited or equitable one, he will 
 not be estopped : Purr/eter v. Harris, 7 Q. B. (53 E. C. L. R.) 708. In order also 
 to raise an estoppel a recital should not be argumentative, but direct and precise 
 on the point ; thus where an agreement for a lease of a farm recited that the de- 
 fendant had, as he was advised, legally put an end to a former lease granted to 
 S. 7/., a bankrupt, by entering, under a power so to do, on the tenant's bank- 
 ruptcy; and it was agreed that the defendant should grant a lease to the plain- 
 tifl' of the farm at a yearly rent, the lease to commence on a day mentioned, if
 
 ESTOPPEL TO BE PLEADED, WHEN. 460 
 
 ticular fact is made in tlie recital in a bond or other instrument 
 under seal, and a contract is made "with reference thereto, it is not 
 competent to the parties bound by that deed to deny the recital in 
 an action upon it between them ; and although the same rule may 
 apply wliere the instrument is not under seal, yet in an action not 
 founded on the instrument, but ■wholly colhiteral to it, the parties 
 are not so bound, even in an action ^between themselves, 
 but may show the circumstances under which the admission ^ J 
 was made, in order to prove that it is not entitled to weight.*^ A 
 deed-poll does not estop a lessee or grantee, for it is the deed of the 
 lessor or grantor only.® 
 
 In general, however, in order to conclude the party by his deed 
 by way of estoppel, it should be pleaded, for if his adversary does 
 not rely upon the estoppel, the court and jury are not bound by it; 
 but the jury may find the matter at large according to the facts, and 
 the court will give judgment accordingly. He asks them their 
 opinion, and they are bound to give it. Where, however, the title 
 of the party is by estoppel, and he has no opportunity of pleading 
 it, the jury cannot find against the estoppel. Thus in debt for rent 
 on an indenture of lease, if the defendant plead nil debet, he cannot 
 give in evidence that the plaintiff" had nothing in the tenements, 
 because if he had pleaded that specially, the plaintiff" might have 
 replied the indenture, and estopped him ; but if the defendant plead 
 nihil habuit, &c., and the plaintiff", instead of relying on the estoppel, 
 reply habuit, &c., he waives the estoppel, and leaves the matter at 
 large ; he puts the fact in issue; and the jury are to find the truth, 
 notv.ithstandinor the indenture.^ 
 
 But when an estoppel creates an interest in lands, the court will 
 
 the defendant could then legally execute the same, or as soon as he legally could ; 
 the rent to commence with the term, or on possession being given, whichever 
 should first happen ; it was held, that although the recital might be prima facie 
 evidence against the defendant, that he had power to grant the lease, that evi- 
 dence was answered by proof that the bankruptcy of *S'. //. had been superseded : 
 Wright V. Colls, 19 L. J., C. P. 60. 
 
 ^ Carpenter v. Buller, 8 M. & W. 209 ; Wiles v. Woodward, 5 Ex. 557. 
 
 ® Co. Litt. 363, b. A lessee by indenture, in an action of covenant for plough- 
 ing up Laines Meadows, without paying at a certain sum per acre, was held not 
 to be estopped from averring that Laines Meadows were not meadow ground, 
 although they were described as meadows in the lease : Skipivith'Y. Green, Str. 
 610. 
 
 f P. C. Salkeld 277 ; Com. Dig., Estoppel, C. ; Ibid., Pleader, S. 5 ; B. N. P. 
 298. See the notes to Trevivan v. Lawrence, Salk. 276 ; 2 Smith's Lead. Cas. 
 436.
 
 461 PRIVATE DOCUMENTS. 
 
 adjudge accordingly upon the facts found by the jury. As if A. lease 
 land, in which he has no interest, to B. for six years, and then pur- 
 r*4.ft91 ^^^s® ^ lease of the same *lands for twenty-one years, and 
 afterwards lease to C. for ten years, and these facts are 
 found by verdict, the court will adjudge the lease in B. to be good, 
 though it was so only by the conclusion.^ 
 
 So in other cases, where the party who might have relied upon the 
 estoppel, in pleading, waives it, and gives the deed in evidence, al- 
 though the jury are not bound by the estoppel from finding accord- 
 ing to the truth of the fact, yet it seems they would not be warranted 
 in finding a verdict contrary to the solemn admission of the party, 
 without the strongest evidence of fraud. As, for instance, before the 
 rules of Hilary Term 1834, in an action of assumpsit, where the 
 defendant pleaded the general issue, and gave in evidence a release 
 which he might have relied upon as an estoppel ; although he waived 
 the estoppel, still the release was considered to be conclusive evi- 
 dence for the defendant, in the absence of fraud. There are also 
 numerous instances in which a party, by his admission and represen- 
 tations, is concluded from showing the contrary in evidence, although 
 the fact could not have been pleaded by way of estoppel.'' For in- 
 stance, where a man has represented a woman to be his wife, in an 
 action for necessaries supplied to her, he would in general be con- 
 cluded by that representation, which would operate as a kind of 
 estoppel in pais. 
 
 It is a general rule that all privies, whether in blood as the heir,' 
 r*dR^1 ^^ estate as the vendee,'^ or in law as the *lord by escheat,^ 
 or one who claims under another act of law, or in the post,™ 
 tenant in dower, or by courtesy," are bound by an estoppel. 
 
 The effect of deeds and written contracts, not under seal, will be 
 hereafter more fully considered under the several heads to which they 
 belong, as bonds, covenants, agreements, bills of exchange, policies 
 
 8 Com. Dif^., Estoppel, E. 10; see also Pollex. 68. So if the plaintiflF in eject- 
 ment make title by a judgment, in a scire facias, on a judgment in Trinity 
 Term, where the judgment was in fact of Michaelmas Term, the jury cannot find 
 that the original judgment was of Michaelmas Term ; Trevivan v. Laivrence, Salk. 
 27'). iSo if a woman sue or be sued as sole, and judgment be against her as such, 
 though she was covert, the sheriff shall take advantage of the estoppel : 1 Rol. 
 809, 1. 50 ; 1 Salk. 310 ; Com. Dig., Estoppel, B. D. 
 
 '• Freeman v. Cook, 2 Ex. G54; 13 M. it W. 820, See Vol. 11., tit. Admission. 
 
 ' Co. Litt. 352, a. ; Pol. 61, 66 ; Com. Dig.. Estoppel, B. ; 3 T. R. 365. 
 
 " 1 Salk. 276. ' Co. Litt. 352, a. 
 
 ■" Co. Litt. 352, b. ° Pol. 61 ; Co. Litt. 352.
 
 ENTRIES, ETC., CONNECTED WITH ACTS. 463 
 
 of insurance, &c. It may be observed here, that since in all these 
 cases these documents have been framed by the parties them- 
 selves as the authentic evidence of the facts which they contain, and 
 of their own intentions, no other evidence can in general be admitted 
 to alter the obvious sense and meaning of the terms which they have 
 used; to admit this would be to deprive them of all effect as ])erma- 
 nent memorials for the purposes of evidence, for they could no longer 
 be so considered if their meaning could be altered and subverted by 
 extrinsic and collateral evidence. Since this is a fundamental rule, 
 applicable to written evidence in general, its nature and application 
 will be more fully discussed hereafter." 
 
 Secondly. Declarations and entries made by third persons (for both 
 stand upon the same footing) are not in ordinary cases admissible ; 
 they usually fall within the description of res inter alios acta^ 
 
 Whether the declaration by a third person be oral or written, the 
 general objection applies, that it was not made under the sanction of 
 an oath, and that the party against whom it is offered had no opportu- 
 nity to cross-examine. Such a declaration or entry is therefore, on 
 principles already adverted to, inadmissible, unless its admissibility 
 be warranted by some special rule of law applicable to the particular 
 circumstances.*^ 
 
 " See tit. Parol Evidence. 
 
 P See above, tit. Res inter alios, &c. As to those which operate by way of 
 admission, see Vol. II., tit. Admission. 
 
 *• In trover for taking goods by defendant under color of distress, the question 
 being whether the defendant or /. B. was the plaintiff's landlord, the latter having 
 been shoAvn by the plaintiff to have been the party to whom he and his father 
 had always paid the rent ; held, that the defendant, in order to show that he 
 received it merely as agent, could not give in evidence accounts rendered by 
 that party in which he described himself as agent, as the party being alive 
 might have been called, and that they were therefore properly rejected : Spargo 
 V. Brown, 9 B. & C. (17 E. C. L. R.) 935. In assumpsit for two-fifths of a loss 
 recovered by the defendants as agents for *S'., an invoice sent by S. to the de- 
 fendants, to enable them to recover from the underwriters, was held to be evi- 
 dence of the plaintiff's interest: Mendham and another v. Thompson and another^ 
 1 Stark. 316, Ellenborough, C. J., 1816. But an invoice made out by S., and 
 not shown to have been so sent, was rejected as merely S.'s declaration. In an 
 action against underwriters, the bill of lading, signed by the captain, is not 
 evidence of the shipment of the goods : Dickson v. Lodge, 1 Stark, C. (2 E. C. 
 L. R.) 226. A banker's ledger is inadmissible to show that a customer had no 
 funds in the banker's hands: Furness v. Cope, 5 Bing. (15 E. C. L. R.) 114. 
 Semhle, more properly to show that no entry was made in that ledger. Note, 
 that one of the clerks stated that it was the book to which all the clerks referred 
 to see whether they should pay the checks presented to the house ; and Best, C.
 
 464 PRIVATE DOCUMENTS. 
 
 r*4.r4.T *The entry or declaration of a mere tbird person may be 
 admissible as evidence, first where it accompanies and is ex- 
 planatory of tbe nature and quality of a material fact, or secondly, 
 where it is admitted on a principle of necessity, warranted by par- 
 ticular circumstances, which afford a reasonable assurance that the 
 party whose testimony is no longer attainable knew the fact, and 
 communicated it faithfully. 
 
 The considerations which warrant the reception of this latter class 
 of evidence are principally these: — 
 
 V^lC^l *That the declaration or entry was againsf the pecuniary 
 or proprietary^ interest of the party to make it; or that the 
 entry was made at the time, in the ordinary course of his business, 
 by a person whose duty it was to make it ;' and that recourse cannot 
 be had to his testimony in consequence of his death. 
 
 Considerable doubt seems to have existed at one time whether an 
 entry so made in the ordinary course of business was admissible un- 
 less" it appeared also to be against the interest of the party making 
 it ; but "it seems now to be clear that the circumstance of its being 
 made in such course, if the party who made it be dead, is sufficient 
 to warrant the admission of the evidence. 
 
 Indeed it may be observed, that the consideration that the entry 
 was made in the course of discharging a professional or official duty, 
 in which the party was engaged, seems to afford a much safer warrant 
 for giving credit to such evidence than is supplied by the considera- 
 tion that the entry or declaration might possibly have been used to 
 the prejudice of the party. 
 
 J., held that it was admif3sible in order to obviate the necessity for calling a 
 multitude of clerks, and that it was evidence merely to negative the fact of the 
 trader having money in the house. 
 
 In an action on a warranty of a horse sold by an agent, it was proposed to 
 ask a witness whether the agent did not say on the day of the sale that he 
 would warrant the horse, but the evidence was rejected as a mere conversation 
 with a stranger ; but it might have been otherwise if in offering the horse for sale 
 he had oflFered the warranty : Allen v. Denstone, 8 C. & P. (34 E. C, L. R.) 760. 
 
 *■ See the cases on this subject fully stated and discussed in the notes to Higham 
 V. Ridgway, 2 Smith's Lead. Cases, 183, and the reasons for the reception of such 
 evidence considered, ante, pp. 64, 65. As to declarations in cases of marriage 
 and pedigree, see those heads, iilso tit. Reputation. 
 
 ■ Sussex Peerage case, 1 1 CI. & F. 85. 
 
 * See the cases on this sulyect discussed in the notes to Pricev. Lord 'furring- 
 Ion, 1 Smith's Lead. Cas. 139. 
 
 " See the observations of the Judges in Doe v. Turford, 3 B. & Ad. (23 E. C. 
 L. R.) 8'JO; Doe v. liobson, 15 East 32; Ilighman v. Eidgwaij, 10 East 109 ;per 
 Lord Eldoii, Barker v. liai/, 2 Russ. 67.
 
 ENTRIES BY THIRD PERSONS. 465 
 
 It is observable, that the great object of the rule is, to guard not 
 against fraud, but negligence and carelessness : the slightest sus- 
 picion of fraud would be sufficient at once to exclude such evidence 
 and the imposing of the limitation, that the entry, to be admissible, 
 should be apparently against the interest of the party making it, 
 would afford no security against fraud ; the forger of a false entry 
 would *take care to obviate any objection of this description, 
 by admitting payment or some other fact apparently against "- -• 
 
 the interest of the supposed author of the document. The considera- 
 tion that the entry is against the interest of the party is therefore 
 principally material, as it affords reason for supposing that a person 
 would not be likely to commit any error or mistake which might after- 
 wards turn to his prejudice. When, however, it is considered that in 
 many instances such entries remain in the private custody of the 
 parties who make them, it is not probable that the consideration that 
 the documents might be published by accident or mistake, and might 
 in some possible state of circumstances, be turned to the prejudice of 
 the party, would cause him to exercise a degree of exactness and 
 caution, so far beyond that which he would have used in the common 
 course of professional or official duty, or ordinary habits of business, 
 as to supply a sound and useful test, operating to the admission of the 
 former, the rejection of the latter. In the absence of all suspicion 
 of any motive to the contrary, it is fairl}^ presumable that all entries 
 made in the ordinary routine of business are truly made. The same 
 motive which induced a party to use the pains and trouble of making 
 an entry at all, would usually induce him to make a true entry ; a 
 false one would be of no value, and the making it would frequently 
 be more troublesome than to make a true one ; it would require the 
 additional trouble of invention ; and although the sparing of trouble 
 might, in many instances, induce a party to state particulars without 
 sufficient accuracy, it would seldom cause him to invent and state a 
 transaction which never happened. 
 
 In the first place, an entry or declaration accompanying an act 
 seems, on principles afready announced, to be admissible evidence in 
 all cases where a question arises as to the nature and qualit}'^ of that 
 act. Thus where the question is, whether a promissory note was 
 originally void for usury, letters written by the payee to the maker, 
 and *which are contemporary with the note, are admissible , 
 
 to prove that the consideration was usurious.^ L -^ 
 
 " Kent V. Lowen, 1 Camp. 177 ; Walsh v. Stockdale, vol. 2. A letter enclosing 
 a promissory note may be read as evidence, by the writer, to show the purpose 
 
 28
 
 467 PRIVATE DOCUMENTS. 
 
 Such evidence is also admissible on the same principle, to show 
 the intention with which an act was done, where the intention is 
 material/ Thus, on questions of bankruptcy, declarations made by 
 a trader, contemporary with, or during the act of absenting himself 
 from his place of residence or business, are constantly admitted in 
 proof of the real nature and quality of the act/ ^ 
 
 for which the note was sent: Bruce and others v. Hurley, 1 Stark. C. (2 E. C. 
 L. R.) 23. And see Potez v. Glossop, 2 Ex. 191 ; Lewis v. Simpson, Ibid. note. 
 The principle of these cases is that the declarations or entries in fact form part 
 of the res gestcB. See 1 Q. B. (41 E. C. L. 11.) 50; and post, Vol. II. 
 
 y Snpra, p. 51, 52; Vol. II., tit. Intentio.v — Malice. In The Attorney-Gen- 
 eral'Y. Brazen Kose College, 2 CI. & F. 295, the House of Lords decided thai the 
 manner in which the founder of a school, who was the first trustee under the 
 grant by which it was provided for, conducted himself in the distribution of the 
 fund, is very strong evidence of intention, and may be so treated by the Court 
 in construing the grant. 
 
 ^ Eouch v. Great Western Railway Company, 1 Q. B. (41 E. C. L. R.) 50 ; su- 
 pra, pp. 51, 87, 88, 89 ; Vol. II., tit. Bankruptcy. When an act has been done 
 to which it is necessary to ascribe a motive, what the person has said at the 
 time is admissible, for the purpose of explaining the act: Bateman v. Bailey, 5 
 T. R. 512. Statements made by the bankrupt showing his knowledge and opinion 
 of the state of his affairs at the time of the acts in question, have been held to 
 be receivable, although not accompanying any other act done. So letters re- 
 ceived by him in answer to applications for advances are evidence to show the 
 refusal to render him such assistance, but not as to any facts stated in them : 
 Yacher v. Cocks, Moo. & M. (22 E. C. L. R.) 353. A trader in embarrassed 
 circumstances made an assignment of all her effects, &c., for the benefit of cred- 
 itors : in an action after her death, treating the assignee as executor de son tort, 
 a list of creditors made out by a friend of the trader under her direction, about 
 the time of the execution of the assignment, was held to be evidence to show 
 that the assignment was bond Jide: Leiois v. Rogers, 4 C, M. & R. 48. So de- 
 clarations by a person in a state of insolvency, tending to show that he knew it, 
 are admissible to prove such knowledge, provided the fact of insolvency be proved 
 otherwise: Thomas v. Connell, 4 M. &W. 2i'i7. 
 
 ' It is difllcult to lay down any precise rule as to the case in which declara- 
 tions are admissible as part of the res gestoi : Allen v. Duncan, 11 Pick. 309. 
 Thoy must have been made at the time of the act done which they are supposed 
 to characterize : Enos v. Tattle, 3 Conn. 250 ; Pool v. Bridges, 4 Pick. 378 ; Rle- 
 garl v. Ellmakcr, 10 S. & R. 27 ; Seliu v. Snyder, II S. & R. 319 ; DeardorJ'w. 
 Hildebrand, 2 Rawle 226 ; Evans v. Jones, 8 Yerg. 461 ; Posterns v. Posterns, 3 
 W. & S. 127. Declarations of a person in possession of personal property with 
 respect to it are admissible as part of the res gestcn : Oden v. Siuhhlejield, 4 Ala. 
 40; Parker v. Marstun, 34 Me. 386 ; Darling v. Bryant, 17 Ala. 10; Brazier v. 
 Burl, 18 Ibid. 201 ; Perry v. Graham, 18 Ibid. 822. So in an action against an 
 individual for enticing away the servant of another, evidence of the declara- 
 tions of the servant, at the time he left, as to the motives which influenced him,
 
 ENTRIES, ETC., CONNECTED WITH ACTS. 468 
 
 ""Indeed, wherever an entry or declaration reflects ]io;lit ^ 
 
 . . . . [4681 
 
 upon, or qualifies, an act which is relevant to the matter in ^ -• 
 
 issue and is evidence in itself,'^ it becomes admissible as part of the 
 
 » R. V. Bliss, 7 Ad. & E. (34 E. C. L. R.) 550. Thus in Wright v. Tatham, 5 
 CI. & F. 670, on a question as to the competency of a party to make a will, let- 
 ters written to him by others, and found many years after their date anion jfst his 
 
 are admissible on the same principle : Hadleij v. Carter, 8 N. H. 40. If the 
 declaration of a person is in itself a fact in a transaction, or is made by him 
 while doing an act and serves to explain it, it is to be received in evidence as part 
 of the res gesta; ; but a recital of past transactions is not admissible, although 
 it may have some relation to the act which the person may be doing when he 
 makes such declaration : Haynes v. Ruttcr, 24 Pick. 242 ; Bank v. Clark, 2 Vt. 
 308. Res gestce are the circumstances, facts and declarations which grow out 
 of the main fact, are contemporaneous with it and serve to illustrate its charac- 
 ter : Carter v. Buchanan, 3 Kelley 513; Smit?i v. Webb, 1 Barb. 230; Holbrook 
 V. Murray, 20 Vt. 525 ; Plumer v. French, 2 Fost. 450 ; Datvson v. Hall, 2 Mich. 
 390. Where the plaintiff relies upon proof that the defendant requested an en- 
 rolment of a vessel to be made in a certain way, without declaring at the time 
 the purpose for which it was to be so enrolled, the declarations of the defendant 
 as to the purpose, made preliminary to his request, and an hour or two previous, 
 are competent testiufony in his behalf, as part of the res gest(V : Smith v. Smith, 
 1 Sandf. 206 ; Mitcheson v. State, 11 Ga. 615. The declarations of third persons 
 are not admissible in evidence as part of the res gestce, unless they in some way 
 elucidate or tend to give a character to the act which they accompany or may 
 derive a degree of credit from the fact itself. If they can have no effect upon the 
 act done, and derive no credit from it, but depend for their effect entirely upon the 
 credit of the party who makes them, they are not admissible merely because 
 they may have some connection with the act or relate to it : Wood v. Banks, 14 
 N. H. 101 ; Tomkies v. Reynolds, 17 Ala. 109 ; Thomas v. Degraffenreid, 17 Ibid. 
 602 ; Robertson v. Smith, 18 Ibid. 220 ; Lund v. Tyngsborough, 9 Cush. 36. The 
 term res gestce can be properly applicable only to transactions with which the 
 parties were connected while the negotiation between them was unfinished : 
 Wilson V. Sherlock, 36 Me. 295; Battlee v. Batchildcr, 39 Ibid. 19. AVhere a 
 bargain between one of the parties to a suit and a third person, becomes a 
 material fact, what was said by those persons relative to the bargain at the time 
 of making it, is admissible : Johnson v. Elliott, 6 Fost. 67. The conduct and 
 exclamations of passengers on a railroad at the time of an accident, though not 
 in the presence of the party receiving an injury may be given in evidence: 
 Railroad Co. v. Fay, 16 111. 558. Declarations In regard to the ownership of 
 property by the party delivering the same to a carrier, at the time of delivery, 
 are admissible. So also are concurrent acts and declarations of a mandatory in 
 explanation of the loss of the property after and about the time of the alleged 
 loss : McNabb v. Lockhart, 18 Ga. 495. But declarations are not admissible as 
 part of the res gesta', unless the acts which they accompany are themselves rele- 
 vant and material, Independently of what was said ; nor unless the dedlaratlon 
 relates to those acts and Is explanatory of them : Morrill v. Foster, 32 N. H. 
 358. See ante, p. 89, note.
 
 468 PRIVATE DOCUMENTS. 
 
 res gestce, if it be contemporaneous with the act, or so connected with 
 it as to render it part of one continuous transaction. '' 
 
 In the case of Aveson v. Lord Kinnaird," on an insurance effected 
 on the life of the wife, the question was, whether she was in an in- 
 surable state at the time ; and declarations by her, made a few days 
 after the certificate of her health had been obtained, as to the state 
 of her health at the time when the certificate was obtained, and down 
 to the time of the conversation, were *held to be admissible 
 •- J in evidence, with a view to show her own opinion as to the 
 state of her health, as well as with a view to contradict the evidence 
 of the surgeon who, having been called as a witness for the plaintiff, 
 had stated that he considered her to be in good health, but that he 
 had formed this opinion from the answers she had given to his in- 
 quiries. In an action of trespass, what the wife said immediately on 
 receiving the injury, and before she had time to devise anything for 
 her own advantage, is also evidence.'^ So is the complaint made by 
 a person in case of rape, or an attempt to commit a rape, immediately 
 after the injury.'' 
 
 papers were held inadmissible -without proof that he himself acted upon them ; 
 because the fact of writinc; the letters was not a material or relevant fact, and 
 there was none other which they qualified or explained, s. c, 7 Ad. & E. (34 E. 
 C. L. R.) 313. 
 
 •^ Thus, where the plaintiff had received in the lifetime of the owner certain 
 notes as an alleged gift, and after the death of the party, the defendant having 
 inquired as to what property of the deceased the plaintifi" possessed, she volun- 
 tarily produced the notes, stating at the time how she had received them, and the 
 defendant had refused to deliver them back ; held that her account, as part of 
 the res gestce^ was admissible to go to the jury as to the way she became possessed, 
 which, with other circumstances, might induce the jury to believe it correct or 
 not : Hayslip v. Gymer, 1 Ad. & E. (28 E. C. L. K.) 162 ; and 3 N. & M. (28 E. 
 C. L. R.) 479. The declaration of the defendant's wife in delivering money to 
 a witness to be paid over to the plaintiff in payment for sheep, is evidence in an 
 action for the price: Walters v. Lewis, 7 Car. & P. (32 E. C. L. R.) 344; and 
 see R. V. Hall, 8 Car. & P. (34 E. C. L. R.) 358. That the declaration or entry 
 need not be contemporaneous, if there be such connecting circumstances as to 
 render it part of the res gestoi: see Rawson v. Ilaigh, 2 Bing. (9 E. C. L. R.) 
 104; Ridley v. Gyde, 9 Bing. (23 E. C. L. R.) 349; Rouch v. Great Westean 
 Railway Company, I Q. B. (41 E. C. L. R.) 50. 
 
 « 6 East 188 ; and R. v. Johnson, 2 Car. & K. (Gl E. C. L. R.) 354 ; R. v. Gut- 
 tridge, 9 Car. & P. (38 E. C. L. R.) 472; per Parke, B. ; and see Gardner 
 Peerage case. 
 
 ^ Thompson and his Wife v. Trevanion, Skin. 402. So upon an indictment 
 for manslaughter, a statement by the deceased as to how the accident happened, 
 made immediately after it occurred, was held admissible : R. v. Foster, 6 C. & 
 P. (25 E. C. L. R.) 325. 
 
 • Brazier's case, 1 East P. C. 444 ; R. v. Clarke, 2 Stark. C. (3 E. C. L. R.)
 
 ENTRIES, ETC., CONNECTED WITH ACTS. 469 
 
 To this head also the admissibility of declarations by tenants has 
 sometimes been referred, and it seems that such declarations are 
 clearly referrable to this principle in all cases where the nature and 
 quality of an act of ownership or dominion, or of the possession, is 
 questioned and requires explanation, or when the nature and quality 
 of the possession are questioned, and the contemporary declaration 
 of the party doing the act, or of the party in possession serves to 
 elucidate and explain the nature and quality of such act or posses- 
 sion. 
 
 The application of the general principle already ^announced 
 stands thus : In the absence of direct documentary proof of ^ -^ 
 the title to lands, or to an easement of right arising out of lands, 
 acts of possession and enjoyment must be resorted to as indirect evi- 
 dence of the right.^ Where such possession and enjoyment have been 
 of long continuance, the law in many instances makes that possession 
 and enjoyment conclusive as to the right, and in all cases renders 
 such evidence admissible, on the reasonable presumption that unless 
 those acts and possession had been founded in right, they would have 
 been resisted by him whose right was violated. But the admission 
 of such acts of possession and enjoyment in evidence frequently 
 introduces a question as to their nature and quality, for on this must 
 depend the question, whether they furnish any inference of acqui- 
 escence in an adverse enjoyment. This again must be decided by 
 the mode and circumstances of enjoyment, and for this purpose the 
 contemporary declarations of the parties concerned are necessary 
 and essential evidence. If, for instance, the question be whether 
 
 A. has a right of way to his house over the close of B., and evi- 
 dence be given that on a particular occasion the occupier of ^.'s 
 
 24.^ ; Trelawny v. Colman^ Ibid. 191. The fact of a complaint being made is 
 evidence to confirm the prosecutrix's story, but the particulars are not evidence ; 
 and they properly cannot be elicited for the prosecution : see R. v. Megson, 9 
 Car. & P. (38 E. C. L. R.) 420; R. v. Guttridge, 9 Car. & P. (38 E. C. L. R.) 
 472 ; R. V. Walker, 2 M. & Rob. 212 ; and see post, Vol. II., tit. Rape. On an 
 indictment for shooting at the prosecutor, Patteson, J., held that evidence was 
 admissible to show that the prosecutor, immediately after the injury, had made 
 communication of the fact to another, but that the particulars could not be 
 given in evidence : Rex v. Ridsdale, York Spring Assizes, 1837. 
 
 ' Act of ownership can only prove that which would be better proved by title- 
 deeds or possession. Acts of ownership, where submitted to, are analogous to 
 admissions or declarations, by the party submitting to them, that the party ex 
 ercising them has a right to do so, and that he is therefore the owner of the 
 property upon which they are exercised : per Best, J., in Hollis v. Goldfinch, 1 
 
 B. & C. (8 E. C, L. R.) 205.
 
 470 PRIVATE DOCUMENTS. 
 
 house used the close as a Avay, the whole force and efficacy of the 
 evidence may depend on what was said at the time. If, on the one 
 hand, it were proved that ac that time the occupier of A.'s house 
 asked the permission of the owner or occupier of the close to use 
 the way, the fact, instead of affording evidence of an adverse right, 
 would be strong to negative the right ; if, on the other hand, the 
 right to use was asserted and acquiesced in, the fact would afford 
 evidence of acquiescence on the one hand, and of right on the other. 
 The case of Doe dem. *Aimian v. Pettet^ may be cited in 
 
 r*47ii • 
 
 •- -J illustration of these remarks. 
 
 Human was the purchaser of lands. After his death, Avhich was 
 thirty years ago, his widow continued in possession for more than 
 twenty years, and died ; the question between the heir-at-law of the 
 husband and the heir-at-law of the w^ife was, whether the possession 
 by the wife was an adverse possession ; and it was held, that her 
 declarations during her possession that she held for her life only, 
 and that after her death the premises would go to her husband's 
 heir-at-law, were admissible to rebut the Statute of Limitations, 21 
 Jac. I., c. 16. They were not used to show the quantum of her 
 estate, but only to explain the nature of her possession. 
 
 B 5 B. & Aid. (7 E. C. L. R.) 223 ; and see Came v. Niclioll, 1 Bing. N. C. 
 (27 E. C. L. R.) 430 ; Doe dem. Daniel v. Cotdthred, 7 Ad. & E. (34 E. C. L. R.) 
 235. In the case of Doe v. Eickarby, 5 Esp, C. 4, which was an action of eject- 
 ment on an alleged forfeiture of a lease for breach of a covenant not to injure or 
 underlet, by imderletting ; it appeared, that after the house had been for some 
 time empty, Mrs. Lutlimam was found in possession ; and it was held, that the 
 plaintiff was at liberty to prove that a witness on his behalf bad inquii-ed of Mrs. 
 Luthmam in what way she occupied it, and to give her answer in evidence. This 
 case, however, goes to a great length : it is diflBcult to say that such an answer 
 can be admissible as original evidence during the life of the declarant, except 
 on the ground that she was the agent of the party to be affected, or that the 
 declaration was evidence, as accompanying the fact of possession. But there was 
 no sufficient proof of agency to let in such declaration, and the declfiration was 
 not admitted as explanatory evidence of a contemporaneous act, but rather to 
 prove a by-gone fact, the nature and terms of the original entry. In some in- 
 stances, the admissibility of declarations by former occupiers, on the ground that 
 they were against the interest of the declarants at the time, has been carried to 
 a great length ; see Walker v. Broadstoclc, 1 Esp. C. 458. Upon the trial of an 
 indictment for obstructing a highway, the question was, whether the road was 
 public or private ; and it was held, that the declaration of a deceased occupier 
 at the time of jihinting an alleged boundary willow, was inadmissible, either as 
 a declaration accompanying an act, or as contrary to the party's interest, or as 
 evidence of reputation : Rej. v. Bliss, 7 Ad. & E. (34 E. C. L. R.) 550; and see 
 Tickle v. Brown, 4 Ad. & E. (31 E. C. L. R.) 3(19.
 
 SURVEYS — MAPS — WHEN ADMISSIBLE. 472 
 
 *Upon similar grounds, title-deeds and testaments are r* i-ro"! 
 admissible evidence of the rights of property.'' 
 
 Even modern deeds are also evidence to show the title of a party 
 to a particular estate, when a sufficient ground has been laid by proof 
 of the ownership of the party from whom the title is derived. Thus 
 it is every-day's practice to prove the title of A. B. to an estate, by 
 proof of the execution of a conveyance by 0. D., a former owner in 
 possession of the estate. In such cases the evidence does not come 
 within the objection of res mter alios ; the deeds are nothing more 
 than solemn declarations and admissions of the parties, accompany- 
 ing and evidencing the nature of the act of transfer, and do not 
 affect or conclude the rights of any stranger, any more than the 
 mere fact of delivering the possession would conclude him. It is 
 evidence of the same nature, as if a plaintiff in trover were to prove 
 his ownership of a horse, or other chattel, by showing that he bought 
 him for a particular sum at a fair. Such evidence, as a mere fact, 
 and part of the res gestce, is admissible against all the world ; it ope- 
 rates to the conclusion of no one without his assent, but merely so 
 far as in its own nature it affects the transaction itself. For its 
 force and effect, the evidence depends entirely upon its connection 
 with the acts of ownership and possession ; proof of the execution 
 of deeds by parties wholly unconnected with the estate would avail 
 nothing to prove a title. 
 
 Maps and surveys of estates are also evidence to show the extent 
 of a man's estate, when it appears that they have been made with 
 the privity and consent of the owners of *the adjoining r^j^yo-i 
 lands. A. being seised of the manors B. and C, durins; his 
 seisin caused a survey to be taken of B., which was afterwards con- 
 veyed to E. ; and upon a dispute between the lords of B. and C, it 
 was held that the survey was admissible in evidence.' 
 
 •* Supra, p. 64, 65, 186 ; and see the cases tjiere cited. A counterpart of a 
 feoffment by a corporation, produced from their muniments, without proof of 
 rent ever having been received in respect of the property, is inadmissible : Lan- 
 cum V. Lovell, 6 C. & P. (25 E. C. L. R.) 441 ; 9 Bing. (23 E. C. L. R.) 465. The 
 defendant justified breaking floodgates, as lessee of the Bishop of W. ; old leases 
 were produced from the registry, and admitted : Wakeman v. West, 7 Car. & P. 
 (32 E. C. L. R.) 479. 
 
 ' Bridgman v. Jennings, 1 Lord Raym. 734. The only case, it is said, where 
 a map is receivable in evidence, is where at the time it was made the whole 
 property belonged to the person from whom both parties claim : Doe v. Lakin, 
 7 C. & P. (32 E. C. L. R.) 481. In an action for breaking down floodgates, a 
 map of the owner's and of adjoining lands is not admissible to show the course
 
 473 PRIVATE DOCUMENTS. 
 
 But it is clear that no entry or survey taken by an owner would 
 be evidence either for himself, or for one who claimed through him, 
 against a party who did not claim in privity, since it might encour- 
 age persons to include in surveys more than belonged to them ;'' and, 
 therefore, survey-books of a manor, although ancient, unless signed 
 by the tenants, or unless they appear to have been made at a court 
 of survey, are not evidence ; they are mere private memorials.^ 
 
 So it has been said, that an old map of lands has been allowed in 
 evidence, where it came along with the writings, and aorreed with 
 the boundaries adjusted in an ancient purchase.™ It does not clearly 
 appear under what circumstances this old map was held to be evi- 
 dence, but it seems that one ingredient essential to its admissibility 
 was its agreement with boundaries as adjusted in an ancient purchase, 
 that is with some other instrument ; and the term adjusted seems to 
 imply some privity on the part of the owners of adjoining property, 
 if the vendor was not himself the owner. A map annexed to a deed 
 seems to stand on the same footing as the description contained in 
 the deed itself. 
 
 *It is an established principle of evidence, that if a party 
 L J who has peculiar knowledge of the fact, by his written entry, 
 or even declaration concerning it, discharges another upon whom he 
 would otherwise have a claim, or charges himself, such entry is admis- 
 sible evidence of the fact after the death" of the party." ^ 
 
 of the stream to the plaintiff's mill : Wakeman v. West, 7 C, & P. (32 E. C. L. 
 R.) 479. 
 
 " Str. 95 ; 1 Lord Raym. 734 ; Oiitram v. Morewood, 5 T. R. 123. 
 
 ' 12 Vin. Abr. 90, pi. 12; per Bacon, Exon, Summ. 1719. 
 
 "^ Gilb. Law of Ev. 78. 
 
 ° Where entries were made against the interest of a party who had quitted 
 the kingdom, there being charges of a criminal nature against him, but was 
 still living, it was held that such entries could not be read: Stephen v. Gwenap, 
 1 M. &Rob. I'iO; and see Smith v. Whittingham, 6 C. & P. (25 E. C. L. R.) 78 ; 
 Spargo v. Brown, 9 B. & C. (17 E. C. L. R.) 935 ; Fursdon v. Clogg, 10 M. & 
 W. 572; and Sussex Peerage case, 11 CI. & F. 85, p. 465. Parol evidence is 
 admissible of a declaration by a devisee that she was merely a trustee : Strode 
 V. Winchester, 1 Dick. 397. 
 
 ° Iligkam v. Ridgway, 10 East 109, infra. It has been said that an additional 
 circumstance is necessary, viz., that the party who made the entry might have 
 been examined as to it, had he been living: per Bayley, J., in Ilighamw. Ridg- 
 way. It is, however, observable that in that case three of the judges lay down 
 the rule without this qualification ; and in the case of Short v. Lee, 2 Jac. & 
 
 ' Chase v. Smith, 5Vt. 558; Thompson v. Stevens, 2 N. & McC. 493. If made 
 in the usual course of the business or duty of the party making the entry it is
 
 DECLARATIONS, ETC., AGAINST INTEREST. 474 
 
 Thus, upon a trial at bar, where the question was, whether a sur- 
 render of the mother's estate for life had been made when the son 
 suffered a common recovery, the court admitted in evidence the debt- 
 book of an attorney, (deceased,) in which he had made charges for 
 suffering the recovery, and for drawing and engrossing a surrender 
 of the mother, which were therein acknowledged to have been ^jaid ; 
 and the court held, that this was a material circumstance upon the in- 
 quiry into the reasonableness of presuming a surrender, and could 
 not be suspected to be done for that purpose ; and that since the 
 
 attorney was dead this was the best evidence.^ So in *thc ^ ,„^^ 
 
 r 4751 
 case of Iligliam v. HidgwmJ^ it was held, that an entry made "- ^ 
 
 Walker 464, the Master of the Rolls held that an entry by a deceased person 
 was admissible, although he could not, in bis lifetime, have been examined to 
 the fact; and this is certainly most consistent with the principle upon which 
 such evidence is admitted. Hence the Court of Exchequer negatived any such 
 qualification in the case : Gleadoio v. Aikin, 1 Cr. & M. 410. 
 
 P Warren v. Greenville, Str. 1129. Note, this was forty years after the time 
 of the surrender, and the Court said they would have presumed a surrender 
 after such a length of time, without this additional evidence. In Goodtitle v. 
 Duke of Chandos, 2 Burr. 1072, Lord Mansfield says that the Court did rely 
 upon the enti-y ; but he also states from his ovrn note, that the Court said that 
 after forty years they would, without any other circumstances, presume a con- 
 ditional surrender ; see also the last preceding note. In Doe v. Wright, Lan- 
 caster Summer Assizes, 1836, Coleridge, J., admitted a bill of costs by an 
 attorney, stating facts and business done which had been paid, on the same 
 footing as original entries in the book. 
 
 *i 10 East 109; 2 Smith L. C. 182. The evidence seems to have been received 
 in this case principally upon the ground that the entry was made of a fact 
 within the peculiar knowledge of the party, against his interest. In Doe dem. 
 Gallop V. Vowles, 1 M. & Rob. 261, in order to show that the mortgagee had 
 done some repairs to certain premises, with a view to prove that the defendant 
 had not had an adverse possession, the lessor of the plaintiff produced a bill for 
 the repairs, with a receipt for the amount of it in the handwriting of a deceased 
 carpenter, which had been found among the mortgagee's papers; but Littledale, 
 J., rejected it as evidence of the work having been done, inasmuch as the paper 
 itself was the only evidence that the demand ever existed, and that the founda- 
 
 not necessary that it should be against his interest: Augusta v, Wiiidson, 1 
 Appl. 317 ; Brewster v. Doane, 2 Hill 537 ; Gale v. Norris, 2 McLean 469 ; Ken- 
 dall V. Field, 2 Shepl. 30 ; Doe v. Sawyer, 28 Me. 463 ; Thompson v. Porter, 4 
 Strobb. Eq, 58 ; Arms v. Middleton, 2 Barb. 571. Entries by deceased clerk of 
 notary are admissible to prove demand and notice : Gawtry v. Doane, 48 Barb. 
 148. Sworn entries in books in the regular course of business are admissible : 
 State V. Shinhorn, 46 N. H. 497. Enti-ies by a person against his own interest 
 with others are admissible after his decease : Gaines v. Gaines, 39 Ga. 68 ; Field 
 V. Boynton, 33 Ibid. 239 ; Ward v. Leitch, 30 Md. 326.
 
 475 PRIVATE DOCUMENTS. 
 
 by a man-midwife in his book of having delivered a woman of a 
 chiki on a particular day, referring to his ledger in which he had 
 made a charge for his attendance, which was marked as paid, was 
 evidence upon the trial of an issue as to the age of such child at 
 the time of his afterwards suffering a recovery. 
 
 It was held, in the case of Doe v. Mobson,^ that entries of charges 
 
 made by an attorney in his books, *showing the time when a 
 
 L -I lease prepared for a client of his was executed, which charges 
 
 it appeared had been paid, were evidence after the attorney's death 
 
 to show the time of the execution, which was a material fact in issue. 
 
 By a promissory note A., B. and C. jointly promised D. to pay 
 him X300, and interest. B. paid D. ^280 on account of the note, 
 and D. endorsed on it, " Received of B. £280 on account of the 
 within note; the £300 having been originally advanced to A.'' B. 
 having afterwards paid the whole amount sued C. as a co-surety, for 
 contribution, and it was considered that the endorsement, after D.'s 
 death, was evidence for the jury, not only of the payment of the 
 £280. but that it was advanced to A. as principal.^ 
 
 An entry by a rector of his receipt of tithes is evidence for the 
 successor ; for the entry could not have been of any benefit to him- 
 self.' Lord Kenyon, however, considered this as an excepted case, 
 since in gcneraa man's private entry cannot affect the rights of 
 
 tion for it, as in Higham v. Ridgway, should have been laid by showing the 
 work to have been done ; but in R. v. Inhabitants of Lower Heyford, Gloucester 
 Summ. Assizes, 1840, 2 Smith's L. C. 194, Parke, B., denied the existence of 
 this distinction, and admitted the book of a deceased mason, containing charges 
 for repairing a bridge marked as paid, as good evidence of such repairs without 
 further proof; and see Doe v. Burton, 9 Car. & P. (38 E. C. L. R.) 254. 
 
 *■ 15 East 32. So to show payment of mortgage money by mortgagor by 
 whom he was employed : Clarke v. Wilmot, 1 Y. & C. 53. 
 
 * Davies v. Humphreys, 6 M. & W. 153. 
 
 * 5 T. R. 123; Bunb. 46 ; 2 Ves. 43 ; and was against his interest, as it would 
 have been evidence to discharge the parishioners, ^^er Plumer, M. R., 2 Jac. & 
 W. 475. So in a suit for tithes by the lessee of an ecclesiastical corporation ag- 
 gregate, to whom the rectory belonged, ancient documents in their possession, 
 purporting to be accounts furnished by some of their members employed to col- 
 lect the tithes, and appearing to be offered and settled, are admissible in evi- 
 dence : Short v. Lee, 2 Jac. & W. 464. An entry by a deceased rector is also 
 evidence by way of admission against a successor. An ancient document signed 
 by the rector, and headed, " notification of the tithes of the parish," although 
 not coming out of the proper repository of a terrier, was held to be admissible 
 evidence against a succeeding rector, as the admission of one of his predecessors, 
 and upon tlic principle of a receipt: Maddison v. Nuttall, 6 Bing. (19 E. C. L. 
 Pt.) 22G.
 
 ENTRIES BY DECEASED PERSONS, ETC. 476 
 
 third persons ;" and therefore in Outram v. Moorcwood^^ wliere the 
 question was whether a particular close was part of an estate which 
 formerly belonged to Sir J. Zoueh, it was held, that entries of the 
 receipt of rents made by one from whom the ^defendant de- r* 177-1 
 rived his title to the rent of this close, but nothing more, 
 was not evidence for the defendant in order to prove the identity of 
 the close and to establish his title to the coals, on the ground that 
 the entries were no more than the private memoranda of the party, 
 not upon oath, which ought not to bind third persons ; and it was 
 distinguishable from the case of Barry v. Bebbington, since there 
 the stcAvard charged himself with the receipt of the money. It ap- 
 pears therefore to be clear, that a man's own private entry as to his 
 own rights, which admits no liability to another, is not evidence 
 either for himself or those who claim under him. The case of an 
 entry of the receipt of tithes by the rector stands upon very peculiar 
 grounds ; he has no personal interest in making the entry with a 
 view to any claim made by himself, since the entry would not be evi- 
 dence for him ; and the incumbent for the time being, and not his 
 heir or personal representative, would afterwards derive benefit from 
 such entry. 
 
 Lord Hardwicke observed, that it was going a great way to admit 
 the books of a deceased rector as evidence for his successor,^ but that 
 it had been allowed, because the rector knew that the entry could not 
 benefit either himself or his representative, who had nothing to do 
 with the living.'' The admissibility of such evidence seems to rest 
 upon the principles* already announced. 
 
 *In the case of Searle v. Lord Barrinqton} the court is ^ ,„^^ 
 
 r*4781 
 said to have extended this principle so far as to hold, that ^ -* 
 
 ° 5 T. R. 123. ^ 5 T. R. 121. 
 
 y 2 Ves. 43 ; and see Illingworth v. Leigh, 4 Gwill. 1618 ; Woodnoth v. Lord 
 Cobham, 2 Gwill. 653. 
 
 ^ Such evidence has, however, been received in favor of his successor, wliere 
 the entries have been made by an impropriate rector, although there the party 
 who made the entries might benefit his own inheritance: 4 Gwill. 1618; 2 Gwill. 
 653 ; Bun. 180 ; but see Le Gross v. Loi^emoor, 2 Gwill. 529 ; Perigal v. Nichol- 
 son, 1 Wightw. 63. Lord Kenyon's observation, Outram v. Morewood, 5 T. R. 
 123. No propi'ietor or corporation sole, except a rector or vicar, can make such 
 evidence for his successors, and even in those cases the liberty has been allowed 
 with regret : Short v. Lee, 2 Jac. & W. 464. 
 
 ^ Su2)ra, pp. 64, 65 ; and see Lord Ellenborough's observations in Doe v. Eaw- 
 lins, 7 East 279. 
 
 ^ Str. 826. The bond was dated June 24, 1697 ; the endorsement of interest 
 on the bond, under the hand of the obligee, was dated in 1707, being three years
 
 478 PRIVATE DOCUMENTS. 
 
 in an action upon a bond, a receipt for interest endorsed upon it by 
 the obligee himself, is evidence to go to a jury to rebut the presump- 
 tion of payment arising from lapse of time. If this case is to be 
 taken as an authority for the general position, that an endorsement 
 r*47<^n ^^ ^^^® receipt *of interest on a bond bearing date within the 
 space of twenty years from the date of the bond, shall in 
 itself, and without any proof that it was actually made within that 
 space of time, or with the privity of the obligor, be evidence to rebut 
 the presumption of payment, it seems to be difficult to support it 
 upon principle ; for it amounts to this, that in this particular case 
 the party shall have an opportunity of making evidence in his own 
 closet, in order to rebut a presumption which would otherwise arise 
 against him. If this be so, the case must be regarded as anomalous, 
 and as an exception to the plain fundamental rule, that a man shall 
 not be permitted to make evidence for himself.*' If, on the other 
 
 before the death of the obligor ; and the cause was first tried Trin. 1724, Pratt, 
 C. J., was of opinion that this endorsement was not evidence ; but the three other 
 judges were of opinion that it ought to have been left to the jury, for they 
 might have reason to believe that it was done with the privity of the obligor ; 
 because it was the constant practice for the obligee to endorse the payment of 
 interest, and that for the sake of the obligor, who is safer by such an endorse- 
 ment than by taking a loose receipt. Upon a second trial, Lord Raymond, C. 
 J., admitted the evidence, and a bill of exceptions was tendered, and after judg- 
 ment in the King's Bench for the plaintiif, a writ of error was brought in the 
 Exchequer Chamber ; and upon argument, five of the judges were of opinion to 
 affirm, and two to reverse, the judgment. The judgment was afterwards affirmed 
 in the House of Lords. In Barnes v. Ransom, 1 Barn. 432, a similar endorse- 
 ment seems to have been admitted, though made after the presumption of pay- 
 ment had taken place. See Mr. Nolan's note to the former case, in his edit, of 
 Strange 826. In a copy of select cases of evidence, there referred to, it is stated, 
 that at the sittings after Michaelmas Term at Westminster, 6 Geo. III., Lord 
 Camden said that he was never much pleased with the determination of Searle 
 V. Lo7-d Barrington ; however, he said, it was law: see Vol. II., tit. Bond. In 
 Gleadow v. AtJcin, 1 Cr. & M. 428, an action on a bond, there was proof of pay- 
 ment of interest to a third person, and to connect that with the bond an endorse- 
 ment on the bond by the obligee, stating that the bond was for trust money for 
 that third person, of even date with the bond, was held to be admissible. So an 
 endorsement of the receipt of interest on a promissory note made by the payee, 
 since deceased, was held admissible to repel the Statute of Limitations: Gale v. 
 C'apern, 1 Ad. & E, (28 E. C. L, R.) 102. In consequence of these decisions the 
 stat. 9 Geo. IV. c. 14, s. 3, provided, that no such endorsement made by or on 
 account of the party to whom such payment shall be made, shall take the case 
 out of the Statute of Limitations. See Vol. II., tit. Limitations; and tit. Bond. 
 " See Lord Ilardwicke's observations in the case of Gli/n v. I'he Bank of Eng- 
 land, 2 Vcs. 43, and Lord Kcnyon's, 5 T. R. 123 ; and Lord Ellenborough's, in 
 Jiose V. Bnjant, Camp. 323. •
 
 ENTRIES BY DECEASED PERSONS, ETC. 479 
 
 hand, this further limitation is to be applied to the reception of such 
 evidence, that reasonable proof shall be adduced to show that the 
 endorsement existed before the presumption of satisfaction had 
 arisen, the doctrine seems to be more consonant v?ith the principle 
 above stated ; a presumption arises that the obligee would not falsely 
 and wantonly make an endorsement prejudicial to his own interest at 
 the time,** from which he could derive no benefit. It seems to be clear, 
 at all events, that such evidence would be inadmissible, if tiie endorse- 
 ment appeared to have been made after the presumption had arisen.® 
 Entries by which receivers, stewards, bailiffs, and other agents 
 charge^ themselves with the receipt of money are *in general r^^inn-i 
 admissible in evidence to prove the facts entered after they 
 are dead, for (as it is said) it is reasonable to be presumed that a man 
 would not wantonly charge himself with any responsibility;^ and 
 evidence to show that the party making the entry had knowledge of 
 the fact is unnecessary.^ 
 
 * In the case of Glyn v. The Bank of England, 2 Ves. 42, Lord Ilardwicke 
 said (of this case) he took it that the endorsements were made and bore date 
 within twenty years. And in Turner v. Crisp, 2 Str. 827, it was said, the en- 
 dorsement appeared to have been made before it could be thought necessary to 
 make evidence to encounter the presumption. It does not appear, however, from 
 the report that any such evidence was given. 
 
 ® Turner v. Crisp, Str. 827 ; 2 Ves. 43 ; Serle v. Lord Barrington, Lord Raym. 
 1370. 
 
 '' But, although an entry by a steward in his books in his own favor, uncon- 
 nected with other entries charging himself, is not evidence of the facts stated in 
 such entry : Knight v. Marquis of Waterford, 4 Y. & C. 284; Doe dem. Kinglake 
 V. Beviss, 7 C. B. (62 E. C. L. R.) 456 ; yet the mere fact of the final balance 
 upon the account being in the steward's favor does not affect the admissibility 
 of an entry charging himself: Williams v. Greaves, 8 C. & P. (34 E. C. L. R.) 
 592 ; Rowe v. Brenton, 3 M. & R. 268. But there must be an admission to charge 
 the party : thus, in Doe dem. Kinglake v. Beviss, 7 C. B. (62 E. C. L. R.) 456 ; 
 accounts of the receiver of one of the hundreds into which the manor of Taunton 
 Deane is divided, in which were entries of sums received and paid by the reeves 
 from and to the woodward, and amongst them the payment which was material 
 in the action, were rejected, because it did not appear that the reeve in any part 
 of the accounts acknowledged the receipt of the specific sum for which he so 
 claimed credit. 
 
 8 In an action by the lord for copyhold fines, the book kept by the steward of 
 all fines assessed, whether paid or not, was ofl'ered in evidence to prove the pay- 
 ment of fines by remainder-men, as it was accessible to all the copyholders^ and 
 had been received by the steward from his predecessor ; but it appeared that the 
 steward made up a second book at the end of each year, in which he entered all 
 fines which had been paid ; and it was held that the evidence was inadmissible : 
 My, Dean, (fee, v. Caldecott, 7 Bing, (_2U E. C. L. R.) 433. 
 
 '' Crease v. Barret, 1 C, M. & R. 919 ; where it is said that the absence of such
 
 481 PRIVATE DOCUMENTS. 
 
 r*4.«n Accordingly it has been held' that an entry in the *parish 
 books, made by the officers of one township, of the receipt 
 of a portion of the church rates from the officers of another town- 
 ship, was evidence to charge the latter with the payment of the same 
 sums in future ; and that the title at the head of the page, stating 
 the customary proportion to be so paid, was also evidence. A private 
 book kept by a deceased collector of taxes, containing entries by him, 
 acknowledging the receipt of sums in his character of collector, was 
 also held to be admissible evidence in an action against his surety, 
 although the parties who had paid them were alive, and might have 
 been called.^ 
 
 In an action of trespass, entries by the steward of a former owner 
 of the locus in quo in his day-book, of sums received from different 
 persons in satisfaction of trespasses, are evidence ; and it was held, 
 that whatever would have charged the steward would be admissible 
 evidence.^ 
 
 So, old rentals, by which bailiffs have acknowledged the receipt of 
 moneys, are evidence of the payment of such rents, and of the right 
 to receive them, if the bailiff or receiver be dead.™ But although the 
 
 knowledge goes to the weight not the admissibility of the entry. Whether a 
 verbal declaration of a collector of rents at the time of paying over money as to 
 the person from whom he received it is evidence against the latter, qucere, Furs- 
 don V. Clogg, 10 M. & W. 572. A verbal declaration was treated as admissible 
 in The Sussex Peerage case, 11 CI. & F. 103. 
 
 * Stead V. Ileaton, 4 T. R. 669 ; 2 Ves. 42 ; Bunb. 180 ; Outram v. Morewood, 5 
 T. K. 121 ; 3 Wood 332. Old rates made by the parish officers of B. on the 
 occupiers of land as parcel of £., and an account containing an o^'erseer's ac- 
 count, in which against the sum for which the occupier had been assessed crosses 
 were made, where held to be evidence that the sum assessed had been paid by 
 the occupiers : Plaxton v. Bare, 10 B. & C. (21 C. E. L. R.) 17. 
 
 ^ Middleton v. Melton, 10 B. & C. (21 E. C. L. R.) 317. See also Doe v. Cart- 
 wright, R. & M. (21 E. C. L. R.) 62, and M'Gaheij v. Alston, 2 M. & W. 206. 
 In the case of Whitnash t. George, 8 B. & C. (15 E. C. L. R.) 556, it was held 
 that entries made by a clerk to bankers, in books kept by him in his capacity 
 as clerk, were admissible in evidence after his death, in an action by the bankers 
 against his surety, on a bond conditioned for the faithful discharge of his duty 
 as such clerk. And it was held that such entries were admissible, not altogether 
 (according to Lord Tenterden) as declarations made by him against his interest, 
 but because the entries were made by him in those very books which it was his 
 duty as such clerk to keep ; and, per Bayley, J., the case of Goss v. Watlington, 
 3 B. & B. (7 E. C. L. R.) 132, was decided on the same principle. 
 
 ' Barry v. Beddington, 4 T. R. 514. 
 
 " Manning v. Lechmere, 1 Atk. 458 ; Musgrave v. Emnierson, 10 Q. B. (59 E. 
 C. L. R.) ?j2&, post, note {p.) Where customary payments were entered as such 
 in ancient receiver's accounts, but were not uniformly in the same language, or
 
 ENTRIES BY RECEIVERS, STEWARDS, ETC. 482 
 
 nt of a bailiff *or steward, who by marking particular r:ic^o.9-| 
 of receipt appears to have collected them, be evidence, 
 
 accouni 
 
 items 
 
 it must appear from the subscription of his name or otherwise" that 
 
 it Avas part of the account of the steward or bailiff; for, in the absence 
 
 of such evidence, it may be nothing more than a leaf drawn out of a 
 
 book by the lord of the manor himself." 
 
 in precise lanf!;ua<2;e, they were held evidence of the custom : Duke of lieaufort 
 V. Smith, 4 Ex. 450. 
 
 ° Entries in a deceased agent's accounts, charj^ing him with receipts, althouf^h 
 not in his handwritin»r, but signed by him, are admissible: Doe v. Stacei/, 5 C. 
 & P. (25 E. C. L. R.) 139. A book in the handwriting of J.. B., purporting to 
 contain accounts of tithes collected by him seventy years ago, cannot be read 
 in evidence without proof that A. B. was collector of tithes at the time : Short 
 V. Lee, 2 Jac. & W. 464 ; but the statutes of an ecclesiastical corporation aggre- 
 gate enjoying the appointment of collectors, together with the internal evidence 
 of the documents, and their coming out of the pi'oper custody, amounts to suffi- 
 cient proof that the parties were really collectors : Ibid. In case for disturbance 
 of the plaintiff's market, accounts signed l^ a party styling himself the stewai'd's 
 clerk, without any evidence to show that he was such dehors the papers them- 
 selves, and not purporting to charge the party whose signature they bore, were 
 on motion held to be inadmissible, and the court not being satisfied that such 
 evidence might not have weighed with the jury, granted a new trial : De Rutzen, 
 Baron v. Farr, 4 Ad. & E. (31 E. C. L. K.) 53. 
 
 A deceased receiver had rendered annual accounts to his employer of rents 
 received by him from pi-operty at II. They were not signed by any one. 
 Another was in the handwriting of a deceased clerk, but on it the receiver had 
 written II. rents. Another was in the writing of the receiver's son, who proved 
 that he made it out by his father's authority, and that it was rendered to the 
 employer in the usual course. They were all received by Lord Denman, C. J., 
 in evidence: Doe dem. Sttirt v. Mobbs, Car & M. (41 E. C. L. R.) 11. And 
 entries of a deceased officer charging himself were received, though written by 
 his agent authorized for the purpose, without calling the agent, and such 
 authority is shown by the officer producing them at an audit : Doe d. Graham 
 V. Hawkins, 2 Q. B. (42 E. C. L. R.) 212. 
 
 " Frankes v. Carxj, 2 Atk. 140. And where bailiff's accounts were not signed, 
 but were drawn out in four columns, in the first and second of which the tenants' 
 names and the amount to be paid by each were entered in the handwriting of 
 the landlord ; and in the third and fourth the amounts received and the date of 
 the receipt were entered in the handwriting of a deceased steward, they were 
 received by Coleridge, J. : Doe dem. Bodenham v. Colcombe, Car & M. (41 E. C. 
 L. R.) 155. 
 
 A computus purporting by the title to be that of Thomas Robyn, propositus 
 or reeve of Padstow in the 33d year of lien. VI., containing receipts of moneys 
 with which he charged himself, and brought from the muniment room of the 
 plaintiff who claimed under the grantee of the port, was admitted by Lord Den- 
 man, although not signed, and there was no proof that it was in the receiver's 
 handwriting ; and it was said that such documents of the same age were never 
 signed: Brune v. Thompson, Car. & M. (41 E. C. L. R.) 34.
 
 483 PRIVATE DOCUMENTS. 
 
 P^ .nq-| *Upon a question, whether certain ancient rentals, pre- 
 served in the archives of the clean and chapter of Exeter^ 
 were entries made by their receivers, charging themselves with the 
 receipt of rents, it was held, that the books of modern receivers were 
 not evidence for the purpose of laying a foundation by comparison, 
 and of showing that the ancient books kept in the same manner, and 
 containing similar entries of receipts and payments, were also re- 
 ceivers' books, and entitled to be read in evidence as such.^ But if 
 from the inspection of such ancient books, and the language of the 
 entries, it appear probable that they were in fact receivers' books, it 
 seems that they are admissible in evidence. ** 
 
 Thus in an action by the corporation of *Exeter, for petty 
 L J customs and port duties on goods landed at Teignmouth, the 
 plaintiffs, to show the receipt of such dues in former times, produced 
 a series of accounts purporting to be the receipts by the receivers of 
 the city. It was proved that the receivers' accounts were regularly 
 audited, and that no one could, at the time to which the evidence re- 
 lated, be mayor till he had been receiver and had his accounts audited. 
 Down to a certain time the accounts were not signed at all ; after- 
 wards they were regularly signed by the auditors only. One entry 
 of this latter class stated a receipt by a receiver, B.^ of a sum for 
 town dues from W., and with this was found a paper stating that B. 
 had received a sum for town dues almost exactly corresponding with 
 that stated in the entry and bearing date at the same time. No evi- 
 dence was given of the handwriting of the latter paper, but B. and 
 
 P Doe V. Tlujnne, 10 East 206. 
 
 ^ In the case of Doe v. Thynne, 10 East 206, the language of several entries 
 imported that iV. W. was therein accounting to the Dean and Chapter for money 
 paid to himself, with the receipt of which he debited himself by the words solvit 
 viihi, and solvit per me; and the Court of King's Bench were of opinion that the 
 books -which had been rejected at the former trial ought again to be submitted 
 to the consideration of the jury. So in order to prove payment of fee-farm 
 rents for three years previously to 21st January, 1731 (for the purpose of satis- 
 fying the requirements of 4 Geo. II. c. 28, s. 5), books were produced from the 
 custody of the present receiver, who had charge of the rentals and title-deeds, 
 containing rent rolls for many years, with entries of sums received in respect of 
 several rents, and among them that in question, but not signed. A paper 
 was also produced from the same custody, signed by E. E., deceased, styling him- 
 self an accountant debtor to the claimant's ancestor, wherein he charged him. 
 self with the receipt of an aggregate of rents, not stating the items, correspond- 
 ing with the amount in the books. The court held that the paper containing 
 the accounts and the books were sufficiently connected and were evidence to 
 prove the seisin of the rent in question : Musjrave v. Emmerson, 10 Q. IJ. (59 
 E. C. L. K.) 326.
 
 ENTRIES, ETC., AGAINST INTEREST. 484 
 
 W. were dead, and the documents were more than thirty years old. 
 Although the third person was used throughout in these documents, 
 and no one stated the receipt to have been "by me," they were held 
 to be admissible."^ 
 
 A book of accounts, kept by an executor and trustee of an estate 
 directed to collect and apply the rents for the benefit of the cestui 
 que trusty is admissible as charging himself, to prove seisin in a writ 
 of right.^ So the book of a bursar of a college is said to be evidence 
 as to money paid by him, or received to the use of a stranger.' 
 
 Where a bill of lading had been signed by a master of a vessel, 
 
 since deceased, for goods received by him to be *delivered 
 
 . . . . . r*4851 
 
 to a consignee or his assigns, on his paying freight, the docu- ^ -• 
 
 ment was held to be evidence to show that the consignee had an in- 
 surable interest in the goods ;" but if, in such case the master should 
 guard his acknowledgment by saying, " contents unknown," so that 
 he does not charge himself with the receipt of any goods in particular, 
 the bill of lading, it is said, would not be evidence either of the 
 quantity of the goods, or of property in the consignee.^ 
 
 In the case of Pyke v. Crouch,'^ it was held, that a letter written 
 by a stranger to a testator, acknowledging the receipt of a will, was 
 evidence to show that such a will had been sent by the testator. 
 
 Upon the same principle other entries and declarations against the 
 pecuniary or proprietary interest^ of the persons making them 
 have been held admissible after their deaths. Thus where A., a 
 tenant for life, with a limited power of leasing, reserving the ancient 
 rent, received a letter from his confidential agent, containing an 
 account of the tenants and rents, on which the tenant for life en- 
 dorsed the words, '' a particular of my estate," and handed it down 
 to B., the succeeding tenant for life, who had a like limited 
 power of leasing, by whom it was preserved and handed down, 
 amongst the muniments of the estate, to the first tenant in tail, it 
 
 ' Mmjor of Exeter v. Warren, 5 Q. B. (48 E. C. L. R.) 773. 
 
 = Spiers v. Morris, 9 Bing. (23 E. C. L. R.) 687. 
 
 ^ Anon., Lord Raym. 745. Qu., Under what circumstances? The report is 
 a very loose one. It appears to mean against the bursar. 
 
 ° Per Lawrence, J., Haddow v. Parry, 3 Taunt. 303. 
 
 " Ibid. 
 
 * Ld. Raym. 730. And see Marks v. Lahee, 3 Bing. N. C. (32 E. C. L. R.) 
 408. 
 
 y These statements, in order to be receivable as being made against the party's 
 interest, must be made while the interest continues, and are inadmissible if 
 made after its termination : Crease v. Barrett, 1 C, M. & R. 910; Lord Trimles- 
 town V. Kemmis, 9 CI. & F. 779. 
 29
 
 485 PRIVATE DOCUMENTS. 
 
 was held that the document was evidence for the first tenant in tail 
 against the lessee of B., in order to show that the rent reserved hy 
 B., the tenant for life, was less than the ancient rent which was 
 reserved at the time to which the paper referred, the paper having 
 been accredited by the then owner of the estate, who had the means 
 of knowing the fact, and who had an interest the *other 
 L J way ; viz.^ to diminish the rent, in order to increase his fine 
 upon a renewal under the power.'' 
 
 Where the question was as to the property in a horse seized by 
 the defendant under a heriot custom, a declaration by A. B., a third 
 person, that he had given up his farm and all his stock to the 
 plaintiff, was held to be admissible for the plaintiff for the purpose 
 of proving that the horse belonged to the plaintiff before the death 
 of A. B^ 
 
 But it must appear that such declaration or entry was against the 
 
 interest of the party making it, in order to be admissible ; and if it 
 
 do not so appear it will be rejected. Thus, in Beg. v. Inhabitants of 
 
 Woiih,^ an entry by a deceased master in a book in which he was 
 
 in the habit of entering the hirings of his servants, which Avas as 
 
 follows : "April 4th, 1824. W. Worrell came, and to have for the 
 
 half-year, 40s. September 29. Paid this X2. Oct. 27. Came 
 
 *ao;ain and to have Is. per week to March 25th, 1825, is 
 r*4g7"i ^ ^ . . 
 
 L -I twenty-one weeks, two days, =£1 Is. Qd. 25th. Paid this ;" 
 
 ^ Roe dem. Brune v. limclings^ 7 East 291. 
 
 " Ivatt V. Finch, 1 Taunt. 141. Note, that in this case the defendant claimed 
 through A. B., upon whose death he became entitled to a particular portion of his 
 personal property as a heriot. And see Coule v. Braham, 3 Ex. 183. A. had 
 taken the goods of B. in execution, and the sheriflF having executed a bill of sale 
 to him, B. was permitted to remain in possession, and the sherifiP afterwards 
 took the same goods in execution at the suit of another creditor of B. In an 
 action by A. against the sheriff for the goods, it was held, that the declarations 
 of B. as to the property of the goods, and that A.''s execution was merely color- 
 able, were admissible for the sheriff: Willies v. Farley, 3 C. & P. (14 E. C. L. 
 R.) 395; and see Prosser v. Gwillim, 1 C. & K. (47 E. C. L. R.) 95; Gttlli/ v. 
 Bishop of Exeter, 5 Ring. (15 E. C. L. R.) 171. But a declaration by a former 
 occupier of land, over which the plaintiff claims an easement, is not admissible 
 against the latter : Hcholes v. Chadivick, 2 M. & Rob. 507. In trover by a pur. 
 chaser of goods afterwards sold by the defendant (the sheriff) under a, fi. fa., 
 statement by the vendor and execution debtor was held by Wightman, J., to be 
 inadmissible for the defendant, the plaintiff claiming adversely to, and not under 
 the debtor: Roberts v. Justice, 1 C. & K. (47 E. C. L. R.) 93. The same point 
 was HO ruled in Stothert v. James, Ibid. 121, by Maule, J., who observed that 
 the execution creditor claims adversely to the debtor. 
 
 MCi. B. (45 E.G. L. R.) 132.
 
 ENTRIES, ETC., AGAINST INTEREST. 487 
 
 was tendered in evidence to prove the hiring in a settlement case, 
 but was held inadmissible, on the ground that as it merely showed a 
 contract which must be supposed to be made on equitable terms, the 
 entry was not against the interest of the master. 
 
 The declarations of" deceased tenants have in many instances been 
 admitted in evidence, on matters connected with their tenancies, 
 principally, as it seems, upon the ground that their declarations were 
 made against their own interest. 
 
 In Doe v. Williams,'^ the question was, whether Mrs. Gallon (from 
 whom the defendant claimed) was in possession of the premises at the 
 time when she levied a fine ; and evidence was admitted by Lord Mans- 
 field of a conversation between Mrs. Gallon and Mrs. Pearce (who was 
 living, but interested as being the present tenant,) in which the one 
 admitted that she had paid the rent to the other as her land- r:(c4^oQ-| 
 lord, and the other admitted that she had *received the rent.* 
 
 " Oral declarations depend partly upon the same principles with written 
 entries, but are far weaker in deo;ree ; they are usually made with less delibera- 
 tion, are more likely to be loosely and wantonly made, and are usually uncon- 
 nected with any regular course and routine of business. The declarations of 
 tenants are not evidence against reversioners, although their acts may be. Per 
 Patteson, J., in Tickle v. Broicii, 4 Ad & E. (31 E. C. L. R.) 27S. Such decla- 
 rations, to be admissible, must have been made during the tenancy : Loi-d Trlm- 
 lestown V. Kemmiss, 9 CI. & F. 779. 
 
 ^ Cowp. 621. Trustees allow one who had an equitable life estate to receive 
 the rents and profits. The latter, while in such receipt, executes a deed recitinp; 
 the trust, and that he is in possession by permission of the trustees. This re- 
 cital was held admissible for the trustees, being made in derogation of the 
 apparent right of the cestui que trust to be considered as owner of the fee : Doe 
 clem. Daniel v. CouWired, 7 Ad. & E. (34 E. C. L. R.) 235. So a declaration by 
 one actually managing property, that he does so in the name of another, is ad- 
 missible evidence for the latter: Baron de Bodes case, 8 Q. B. (55 E. C. L. R.) 
 207. 
 
 ® It is observable that the verdict, notwithstanding the admission of the evi- 
 dence, was for the plaintiff; consequently no question was afterwards made 
 before the court as to the admissibility of this evidence. The evidence itself 
 appears to have been extremely loose, the witness not stating either the occasion 
 or the terms of the conversation, but merely that he remembered a conversation, 
 in which the one admitted that she had paid the other rent as her landlord, and 
 the other that she had received rent from her as tenant. Much in such a case 
 would depend on the object of the conversation, as well as the terms : a settle- 
 ment of account between the parties as landlord and tenant, as it would bind 
 both, would weigh in evidence as an act done, in the same manner as payment 
 of rent. A declaration by a tenant in possession, since deceased, that he then 
 paid rent to the lessor of the plaintiff, made within twenty years, is evidence of 
 title against the defendant, who had said that he was tenant to II. : Doe v_ 
 Beckett, 4 Q. B. (45 E. C. L. R.) 601. Receipts for rent given by two successive
 
 488 PRIVATE DOCUMENTS. 
 
 In Davies v. Pearce^ which was an action of replevin, the ques- 
 tion was, whether the locii8 in quo was parcel of the tenement 
 B. ; evidence was offered by the plaintiff of declarations by deceased 
 tenants of the locus in quo, which was part of L., that they rented 
 L. of Mr. Evans, who was never the owner of B. ; that one tenant 
 had said, that he paid Mr. Evans five shilling's yearly, and a 
 quarter of mutton for L., and that he was then going to pay that 
 rent to the said J. Evans for the said L. ; and that he had ordered 
 his servant to herd some cattle at L., saying, that otherwise he could 
 not afford to pay Mr. Evans his rent. And that another tenant had 
 prevented a person from cutting rushes on L., and threatened that 
 he would tell Mr. Evans, his landlord, of his cutting the rushes ; and 
 once took the rushes from that person, and told him that they 
 belonged to Mr. Evans. And that forty years ago T. H. rented L. 
 for one year, and said that he paid rent either to Mr. Evans or his 
 r*4.SQ1 ™other. This evidence was rejected at the trial, and a bill 
 *of exceptions was therefore tendered ; but the court of K. 
 B. was of opinion that the evidence was admissible ,^ Ashhurst, J., 
 observing, that the fact of cutting rushes was decisive, and Buller, 
 J., adding, that the other question, relating to the tenant's declara- 
 tion that he had paid rent for the premises, had been decided in the 
 cases of Holloivay v. Makes, and Doe v. Williams}' 
 
 In the case of Holloivay v. MaJces,^ cited by Mr. J. Buller, the 
 question was, whether the devisor of an estate twenty-seven years 
 
 landlords for many years to the tenant, and preserved by the later, are receivable 
 to show the seisin of those landlords : Doe d. Blayney v. Savage, 1 C. & K. (47 
 E. C. L. R.) 487. 
 
 ' 2 T. R. 53. 
 
 8 It was not essential, in this case, that the court should give a decided opinion 
 on the mere declarations of the tenants, since other evidence had been rejected; 
 viz., of the fact of cutting down the rushes, and the accompanying declaration 
 which rendered it incumbent to award a venire de novo. Mr. J. Ashhurst seems 
 to have founded his judgment upon that point only : Mr. J. Buller indeed went 
 farther, and intimated his opinion upon the bare declarations. It is, however, to 
 be ol>served, that the case of Doe v. Williams does not support that opinion to 
 the full extent; for these the evidence did not rest as a mere declaration to a 
 stranger, but occurred in the course of conversation between the parties, as to a 
 supposed account between them as landlord and tenant ; it was of the same 
 nature, though weaker as evidence of an actual payment: and if the letting 
 was by parol, it would have been difficult to have given other evidence of the 
 relation between the parties than their actual dealings and communications on 
 the subject. 
 
 '' Supra, note [d). 
 
 » 2 T. n. 55.
 
 ENTRIES, ETC., AGAINST INTEREST. 489 
 
 ago, of wbicli there bad been no possession was seised ; and a decla- 
 ration of a tenant in possession at that time, that he held as tenant 
 to the devisor, was admitted. And the court afterwards held that it 
 had been properly admitted.'' 
 
 *In the case o^ Peaceable v. Watson} it was held, that the 
 declaration of a deceased tenant, of his holding the land of a '- ' -' 
 particular person, was evidence to prove the seisin of the latter, upon 
 the ground that the declaration was against his own interest, since it 
 mio;ht have been made use of as evidence against him. 
 
 In the case of Walker v. Broadstock,"' where the plaintiff claimed 
 a prescriptive rigbt of common, par cause de vicinage, as appurte- 
 nant to his messuage, it was held that a declaration of forty years 
 ago, by a former occupier, since dead, of the plaintiff's messuage, 
 that his cattle had been impounded on Corse Lawn (where common 
 was claimed), was admissible; and also that declarations by another 
 occupier, though still living, of his opinion that he had no such right 
 of common appurtenant to the messuage, were admissible on the 
 general ground that the declarations of tenants against their own 
 
 ^ It is to be remarked, that the court seem to have doubted upon the propriety 
 of admittint; such evidence in general, since they resorted to another principle to 
 support the admission in that case, namely, the probability that the defendant 
 derived title from the tenant who made the admission, and was therefore bound 
 by it. See, however. Doe v. Green, 1 Gow (5 E. C. L. R.) 227. In Doe dem. 
 Earl Spencer v. Beckett, 4 Q. B. (45 E. C. L. R. ) 601, the land in question had 
 been conveyed to the lessor of the plaintiff fifty j'ears before the action was 
 brought ; he had not occupied, but one who had done so proved payment of rent 
 by himself to the lessor of the plaintiff within thirty-three years, when H. began 
 to occupy ; declarations by H. that he was then paying rent to the lessor of the 
 plaintiff, made within twenty years of the commencement of the action, were 
 proved. The defendant had acknowledged that he held of H. It was con- 
 sidered that he was bound by the evidence which was good against H., and that 
 payment of rent by him was proved. This was so held where the question was 
 whether the payment of rent was proved so as to satisfy sect. 8 of the statute 3 
 &4AVill. IV. c. 27. 
 
 ^ 4 Taunt. 16. It would also be evidence against future occupiers, although 
 they did not claim through that person : Doe dem. Linseij v. Edwards, 5 A. & 
 E. (31 E. C. L. R.) 95. 
 
 *" Esp. C. 458. It is to be observed, that in this case the statements of a former 
 tenant who was alive were received, but this would rather appear to be erroneous. 
 Declarations by a party through whom the opposite party claims, are admissible 
 against him, though that person be alive ; but this is upon a totally distinct 
 principle, there being a privity between the two. The declarations by a stranger 
 as against his interest are not admissible during his life : see Phillips v Cole, 10 
 Ad. & E. (37 E. C. L. R.) 106 ; and see the distinction, 1 Ad. & E. (28 E. C. L. 
 R.) 114.
 
 400 PRIVATE DOCUMENTS. 
 
 rights are evidence. These cases seem to have established the prin- 
 ciple that such declarations are admissible on the ground of being 
 against interest ; but it cannot but be remarked that such evidence, 
 to say the least, is exceedingly weak. 
 
 *In the case of Barker v. Ray, an issue was directed by 
 L -I the Court of Chancery, to try whether Edmund Barker, the 
 elder, by his will (since his death succeeded, &c., by Edmund Barker, 
 his nephew), devised certain estates, &c. Upon the trial evidence 
 was offered of declarations made by Elizabeth Barker, the widow of 
 Edmund the nephew, both before and after the death of Edmund 
 the nephew, tending to show that her husband and the other nephews 
 were only tenants for life. The evidence was rejected, and the jury 
 having found for the defendants, the Lord Chancellor, on an appli- 
 cation made by the plaintiff for a new trial, on the ground (amongst 
 others) that the evidence ought to have been received, refused it, 
 without deeming it to be necessary to give any opinion as to the ad- 
 missibility of the evidence. Here it is observable, that the declara- 
 tions oifered in evidence were neither coupled with any act, nor made 
 in the discharge of any office or duty, but were the mere voluntary 
 declarations of the wife on her husband's affairs. 
 
 Declarations, however, not merely in derogation of the title of the 
 party making them, but whereby that party also gains an advantage, 
 are not admissible under this rule." 
 
 In some instances, as will afterwards be more particularly con- 
 sidered under the head of Admissions, the declarations of a former 
 owner are evidence in respect of the subject-matter of ownership." 
 
 " Doe V. WainwrigJit, 8 Ad. & E. (35 E. C. L. R.) 691. In this case a devisee 
 for life under the will of her late husband, conveyed the premises by a deed 
 which recited an outstanding mortgage of the husband, and purported to be 
 made in consideration of forbearance to her as executrix, and of advances 
 made to her. And see Rej. v. Worth, supra ; Doe v. Leivis, 20 L. J., C. P. 
 177. 
 
 " See Vol. II., tit. Admissions. In Woolwayv. Rowe, 1 Ad. & E. (28 E. C. L. 
 R.) 114, the question was whether Scorhill was parcel of plaintiflf's estate, or 
 part of the waste of a manor, the plaintiff liaving no other interest than right 
 to turn on cattle ; and evidence was admitted of a dechxration by a former 
 owner and occupier of phiintiff's estate, that he had no right to enclose the 
 down (the locics in quo,) although the former owner was alive, and in the court, 
 on the ground of identity of interest; and, consequently, as an admission. 
 Semhle, that the principle, such as it is, of admitting such evidence is to explain 
 a negative, i. e., the omission to enclose. An act of enjoyment, or of right 
 exercised, is admissible ; as an accompanying declaration is also evidence to
 
 ENTRIES, ETC., AGAINST INTEREST. 492 
 
 And sucli decliirations *are admissible as orif^inal evidence, r^.„_-, 
 
 . I "xyij I 
 
 although the person who made them be still living ;'' decla- •- -• 
 rations, however, made after such interest has ceased are not admis- 
 sible.'' 
 
 The second class of entries'^ by third persons, to which allusion 
 has been made as being admissible in evidence, is that which com- 
 prises memoranda or statements made *in the ordinary ^^.^^^ 
 
 r*4931 
 course of business by persons since deceased, upon whom ^ -' 
 
 the duty of making them has been imposed. The most familiar in- 
 stance of this class is Lord Torrington s ease.^ There the evidence 
 was, that according to the usual course of the plaintiff's dealings, the 
 draymen came every night to the clerk of the brew-house, and gave 
 him an account of the beer delivered out, which he set down in a 
 book to which the draymen set their hands, and that the drayman 
 was dead, but that it was his hand set to the book ; and it was held 
 to be good evidence of a delivery. 
 
 In the case of Clerk v. Bedford,^ where the plaintiff, to prove a 
 
 explain the nature of the act. And semble, a declaration may be also evidence 
 to explain why the party abstained. 
 
 In a quare impedit between the Irish Society and the Bishop of Derri/, the 
 Bishop claimed the right of patronage of the living of Camus, in Londonderry, 
 within his diocese. A surrender (not confirmed by the dean and chapter) by a 
 former bishop to the Crown of all the livings in Londonderry, coupled with a 
 grant from the Crown dated two days after the surrender, reciting that all the 
 livings in that county had anciently belonged to the see, were held admissible 
 as an admission by the Crown of that fact against the Society, who proved that 
 before the date of that grant the Crown had entered into articles of agreement 
 with the Society to grant them the livings in that county, of which the living 
 in question was one: Irish Society v. Bishop of Derry, 12 CI. & F. 641. So 
 letters from the Crown to successive bishops of Derry. directing them to perform 
 the covenants in that grant, were held admissible : Ibid. Declarations by per- 
 sons holding a negotiable security, under the same title, are admissible ; but 
 the right of a party holding under a good title is not to be cut down by the 
 acknowledgment of a former owner that he had no title. Per Parke, J., 1 Ad. 
 & E. (28 E. C. L. R.) 116. And see Beauchamp v. Parry, I B. & Ad. (20 E. C. 
 L. R.) 89 •, Borough v. White, 4 B. & C. (10 E. C. L. R.) 325 ; Phillips v. Cole, 
 (37 E. C. L. 11.) 106. 
 
 P 1 Ad. & E. (28 E. C. L. R.) 1 14. 
 
 1 Doe V. Webber, 1 Ad. & E. [26 E. C. L. R.) 733; 3 N. & M. (28 E. C. L. R.) 
 586 ; Lord Trimlestone v. Kemmis, 9 CI. & F. 779 ; and see Vol. II., tit. Admis- 
 sions. 
 
 ■■ It would seem that oral declarations made in the ordinary course of business 
 would, under like circumstances, be admissible, as well as written entries ; see 
 per Lord Campbell, Sussex Peerage case, 11 CI. & F. 113. 
 
 "B. N. P. 285; 1 Salk. 285; 1 Smith's L. C. 139. 
 
 ' B. N. P. 282 ; M. 5 Geo. II.
 
 493 PRIVATE DOCUMENTS. 
 
 delivery, produced a book which belonged to his cooper, who was 
 dead, but his name set to several articles, as wine delivered to the 
 defendant, the evidence was rejected by Lord Raymond, who dis- 
 tinguished it from Lord Torrington s case, because there the Avitness 
 saw the draymen sign the book every night. ^ 
 
 In the case of Pitman v. Maddox,"^ in an action upon a tailor's 
 bill, a shop-book was produced, written by one of the plaintift"s ser- 
 vants, who was dead ; and upon proof of the death of the servant, 
 and that he iised to make such entries, it was allowed to be good evi- 
 dence of the delivery of the goods." From these cases it may be 
 
 " Lord Raym. 732 ; 2 Salk. 690. ^ See B. N. P. 282. 
 
 ' The memoranda of acts by a person who is dead, and whose duty it was in 
 the course of the business he had undertaken to do the acts and make the 
 memoranda of them, is competent evidence for the consideration of a jury to 
 prove that the acts were done: Welsh v. Barrett, 15 Mass. 380. Thus where 
 the messenger in a bank, whose duty it was to deliver notices to makers and 
 endorsers of promissory notes and to make a memorandum thereof, in a book 
 kept by him for that purpose, had made such memoranda ; it was held that the 
 book, the messenger being dead, was competent evidence to prove the fact of 
 notice, according to the memoranda therein made by him : Ibid. So the entries 
 made by a merchant's clerk, he being dead, may be received as evidence, in 
 a case proper for the admission of a merchant's books as evidence : Ibid. 
 (This case was fully recognized by the Supreme Court of the United 
 States, in NicJioUs v. Wehh, 8 Wheat. 326). So after a lapse of ten 
 years, it was held that a written memorandum made at the time of the 
 transaction, as to notice of protest of a note, may be read in evidence in 
 connection with other evidence. The memorandum was on the back of the 
 note ; the demand, protest and notice were signed by the notary, and these were 
 held admissible : Hart et al. v. Wilson, 2 Wend. 513 ; [Halliday v. Martinett, 20 
 Johns. 168); Butler v. Wright, 2 Wend. 369; Bell v. Perkins, Peck 261; 
 McNeill v. Elam, Peck 268 ; see also Farmers^ and Mechanics'' Bank v. Boraef, 
 1 Rawle 152. But a plaintiff is not a competent witness to prove the handwrit- 
 ing of a person, who made the entries in his book, and who had subsequently 
 died : Kursper v. Smith, 1 Browne App. 53 ; see also Sterrett v. Bull, 1 Binn. 
 234. Where the question was whether a deed, an exemplification of which 
 had been given in evidence, the original being alleged to be lost, was a forgery 
 or not, it was held that a book of accounts belonging to the magistrate, before 
 whom the deed purported to be acknowledged and who was also a subscrib- 
 ing witness, but who was dead at the time of the trial, containing charges for 
 taking the acknowledgment of deeds, was admissible in evidence to show that 
 the deed could not have been acknowledged before him : Kuurse v. McCay, 2 
 Rawle 70. G. 
 
 In an action for money had and received by a bank against a depositor who 
 had overdrawn, the books of the bank are competent evidence to show receipts 
 and payments of money; and if the clerk who made the entries be dead or in- 
 sane, the book is admissible u|)on }iroving his handwriting: Union Bank v. Knapp, 
 3 Pick. 96. I.
 
 ENTRIES IN THE USUAL COURSE OF BUSINESS. 493 
 
 inferred that some evidence ought to be given to show that such 
 entries were made in the usual routine of business ; but perhaps it 
 may not be necessary, as in Lord Torrinyton's case, to prove the 
 signature by one who saw it written. 
 
 In the case of Dighy v. Stedman/ an entry made by a defendant 
 himself in the course of business, and contemporary with the fact, 
 was received as confirmatory evidence to prove the delivery of a 
 watch. Again, in Hagedorn v. *Reed,^ the entry by a de- r-^.Q.-, 
 ceased clerk of a merchant in the letter-book of a letter, '- -' 
 with a memorandum stating that the original had been sent to a par- 
 ticular person, was held to be evidence of the fact ; proof having 
 been given that it was the invariable course of that merchant's office, 
 that the clerk who copied any letter sent it oflf by the post, and made 
 a memorandum on the copy that he had done so.^ 
 
 y 1 Esp. C. 328. This entry seems to have been used to refresh the shopman's 
 memory. An entry in a tradesman's books certainly is not, merely as such, 
 evidence in his favor : see E. v. Worth, 4 Q. B. (45 E. C. L. R.) 132; svpra, p. 
 486, and note [a], infra. 
 
 ^ 3 Camp. 379. See also Pritt v. Faircleugh, 3 Camp. 305, where similar evi- 
 dence vpas received : Chainpneys v. Peck, 1 Stark. C. (2 E. C. L. R.) 404, infra. 
 In the case of Calvert v. The Archbishop of Canterbury, 2 Esp. C. 645, Lord 
 Kenyon held, that an entry made in the plaintiflTs books, by a servant since de- 
 ceased, of a contract made with the defendant, was not admissible in evidenee to 
 prove the terms of the contract, because the entry did not, as in the case of Price 
 V. Lord Torrington, charge the clerk. It does not appear that in this case, the 
 clerk, in making the memorandum, professed to have made it personally with 
 the defendant or his agent ; and he might, for anything that appeared to the 
 contrary, have made it on hearsay from the plaintiff himself. Nor is it said to 
 have been the servant's duty or business to enter the contract. 
 
 ' By an innovation upon the common law, the books of original entries of 
 shopkeepers and others have been received in evidence by the courts of some of 
 our States, to prove the sale and delivery of goods and the performance of work 
 and labor, together with the price of the same ; but such testimony must be 
 supported by the oath of the plaintiff, that the book produced is his book of 
 original entries, and that the items charged were entered by him at the time of 
 the delivery of the goods or performance of the services or immediately after- 
 wards. In South Carolina [Lynch v. McHugo, 1 Bay 33 ; Foster v. Hinkler, 1 
 Bay 40; Slade v. Teasdale, 2 Bay 172) ; and Ohio [James v. Richmond et al., 
 Conover's Dig. 162); such evidence has been made admissible by statute; but 
 in Ohio, after the lapse of eighteen months from the time of closing the account 
 such testimony will not be received : James v. Richmond et al. In Pennsylvania 
 and Massachusetts the courts have themselves modified the rules of law so as to 
 render such evidence competent — the law upon the subject in Connecticut will 
 appear in the cited decisions — while in New York, resistance has been steadily 
 made to such an encroachment upon the settled principles of the common law :
 
 194 PRIVATE DOCUMENTS. 
 
 In the following case the principle seems to have been carried 
 much farther. Upon an issue out of Chancery, to try whether 
 
 Schermerhorn v. Schermerhorn, 1 Wend. 119. In the former States the admis- 
 sion of such testimony has been placed upon the grounds of necessity. " In con- 
 sideration of the mode of doing business in the infancy of the country when many 
 kept their own books, it has been permitted from the necessity of the case to 
 offer their books in evidence. But when no such necessity exists, when the fact 
 is that clerks have been employed and the entries made by them, there is no 
 cause for violating that wise principle, that no man shall be allov^ed to give tes- 
 timony for himself:" Sterrett v. Bull, 1 Binn. 244; see also Faxon v. Hollis, 13 
 Mass. 427 ; Prince v. Smith, 4 Mass. 455. The reception of evidence of this 
 kind has always been considered as attended with much danger, which has led 
 the courts to guard strictly against any further extension of the principle of the 
 admissibility of such testimony. 
 
 Of what evidence. Entries made by the party himself are evidence to charge 
 the defendant in two cases only, namely, where goods are sold and work done : 
 Wilmer et al. v. Israel, 1 Browne 257 ; Prince v. Smith, supra. ' The book of 
 original entries of the plaintiff is admissible in a scire facias on a claim under 
 the Mechanics' Lien Law, to prove that the materials for which the suit was 
 brought, were furnished at and for the particular building which is the subject 
 of the lien : McMnllen v. Gilbert, 2 Whart. 237 ; see also Linn v. Naglee, 4 
 Whart. 92 ; Church v. Davis, 9 Watts 304. The shop book of a tradesman is evi- 
 dence to charge the original debtor only ; it is not admissible against a defend- 
 ant, who merely assumed to pay the debt of the person to whom the goods were 
 sold : Poultney et al. v. Ross, 1 Dall. 238. In a suit between A. and B. the 
 books of original entries of C. is not evidence to show a collateral fact, as that 
 A. was charged by C. as a partner in a certain house : Juniata Bank v. Brown, 
 5 S. & R. 226. Neither are such entries by a plaintiff evidence of the payment 
 of money to third persons by the defendant's order, nor of such demands as in 
 their nature afford a presumption that better evidence exists : Prince v. Smith, 
 supra. But entries in a book of payments made for another, may be given in 
 evidence, if accompanied by proof that the person had constant access to the 
 books and assented to the entries : Hines v. Barnitz, 8 Watts 39. And a book 
 of original entries, verified on oath, is not competent evidence of the delivery of 
 goods, under a previous contract for their delivery, at different distant periods : 
 Lonerjan v. Whitehead, 10 Watts 249. So the book of original entries of a 
 tradesman, is not evidence of the delivery of goods to be sold on commission, 
 even though such book be offered not to charge the defendant, but as rebutting 
 evidence to explain certain payments proved by the defendant : Murphy v. Cross, 
 2 Whart. 33. And it has been held in Massachusetts that the book of a party, 
 containing his original minutes, is wholly incompetent to prove the payment of 
 cash to third persons by order, and charges of rent ; for better proof of such 
 demands, if true, may be had : Prince v. Smith, sujrra. Entries in a book made 
 or caused to be made by a father, of advancement to his children, are competent 
 evidence, altiiough the child charged had no knowledge of the entry: Hengst's 
 Estate, () Watts SG. So an account-book, containing entries made by A. and B. 
 are evidence of a partnership between them : ChainpUn v. Tilley, 3 Day 303. 
 When the defendant, a mortgagee, asserted that he had paid the debts of a
 
 ENTRIES IN THE USUAL COURSE OF BUSINESS. 494 
 
 eight shares of ITudson's Bay stock, bought in tlie name of Mr. 
 Lahe, were bought in trust for Sir S. Evans, his assigns, (the plain- 
 
 mortgap;or to a certain amount as the consideration of the mortnjage deed ; and 
 the plaintiif resisted the claim and produced evidence to prove that large sums 
 of money had been received by the defendant, which had not Ijeen credited to 
 him, the plaintifiF, or accounted for •, but the defendant alleged that all such 
 sums had been duly accounted for, by credits given in a settlement between him 
 and the mortgagor, in proof of which he offered in court his books of account, 
 purporting to be settled and signed by the parties ; it was held that such books 
 were admissible : Cook v. Swan, 5 Conn, 140 ; see also Hutchinson v. Ilosmer, 2 
 Conn. 341. In Connecticut the law upon this subject seems to differ from that 
 of every other State. Thus it has been there held that the admission of the 
 parties to testify in an action of book debt, is founded on a supposed necessity : 
 yet this necessity is not the necessity of the individual case on trial, but of the 
 class of cases to which it belongs: Peck v. Ahhe, 11 Conn. 207. And though 
 the parties in book debt are not unlimited witnesses ; yet the rule restricting 
 their testimony to the quantity, quality and delivery of the articles charged, 
 however plausible in theory has not been sanctioned by practice or established 
 by precedent. If there be any general rule it is that where proper articles are 
 charged in a book, the parties, quoad the book debt, are admissible like all 
 other witnesses, to testify freely and fully in support or confutation of the ac- 
 count: Ibid. In an action of book debt brought by A. against B. and C. as 
 partners, for goods delivered and charged to B., C. denied the partnership ; to 
 prove which A. introduced a writing signed by C, accompanied by proof that 
 he frequented the shop and made entries in the books and that his name ap- 
 peared on a sign in front of the shop. To disprove such partnership, C. then 
 offered himself as a witness, to testify, that he was not a partner ; that the 
 writing was never delivered, but was obtained surreptitiously ; and to explain 
 why he frequented the shop and wrote in the books and suffered his name to ap- 
 pear upon the sign — and it was held that such testimony of C. was admissible, 
 as going to disprove the plaintiff's account and the delivery of the goods to C. : 
 Ibid. So also it has been decided in the same State that the shop-book of an 
 insolvent debtor, who has assigned his property in trust for the benefit of his 
 creditors, kept by one of the trustees, who was also a cestui que trust, is proper 
 evidence, in an action brought by such trustee against a third person, in con- 
 nection with other proof of a debt due from the assignor to the trustee and the 
 state of the accounts between them : De Forest v. Bacon, 2 Conn. 633. 
 
 How proved. When a party would support his book account by his own oath, 
 it seems that the oath must be administered in court, and that his testimony 
 cannot be taken in the form of a deposition out of court : Freep v. Basher et al., 
 2 Pick. 65. The absence of a witness from the State, so far as it affects the 
 admissibility of secondary evidence, has the same effect as his death. The 
 handwriting of a plaintiff who has made original entries of charge in a book, 
 and who is absent from the State may be proved, and upon such proof the 
 entries are admissible : Alter v. Berghaus, 8 Watts 77. But an account pur- 
 porting to be drawn out by the party himself from his original and daily 
 minutes, is not admi.^sible in evidence, although the book from which such 
 statement might have been copied has been burnt or destroyed by accident:
 
 494 PRIVATE DOCUMENTS. 
 
 tiffs) showed, first, that there was no entry in the books of Mr. 
 Lahe reLating to this transaction ; secondly, that six of the receipts 
 were in the handwriting of Sir *S'. Evans, and there was a reference 
 
 Prince v. Smith, supra. Thoucrh if in such case there be proof that the items 
 of the account drawn out had actually existed in the party's book, where his 
 daily transactions were minuted, and that the transcript had been truly taken 
 therefrom, the transcript might be admitted upon^the ground of necessity, and 
 that it is the best evidence of which the case will admit under all the circum- 
 stances : Ibid. And when a party's own book, with his supplementary oath 
 are competent evidence to prove the charges therein contained, secondary evi- 
 dence of the contents is admissible, in case the books are lost or destroyed : 
 Holmes v. Marsden, 12 Pick. 169. 
 
 Requisites to admissihility . 1st. Time when entries must have been made. 
 The entries must be made at the delivery of the goods or immediately afterwards, 
 and the object of the entry must have been to charge the other party : Rhoads v. 
 Gaul, 4 Rawle 404 ; Can-en v. Crawford, 4 S. & R. 5 ; Rogers v. Old, 5 Ibid. 
 404; Kaughley v. Breivster, 16 Ibid. 133. Where a plaintiff made an entry of 
 goods sold, upon a card with pen and ink, and the same evening or the next day 
 transcribed it into a book, that is to be considered as the book of original entries 
 of the plaintiif and may be read in evidence to the jury: Patton v. Ryan, 4 
 Rawle 408 ; see also Inyraham v. Bockius, 9 S. & R. 285. But entries made by 
 a party on loose scraps of paper carried in his pocket for several days, without 
 any reason given to account for the irregularity, cannot be received : Vicary v. 
 Moore, 2 "Watts 451 ; see also Kessler v. McConachy, 1 Rawle 435. It is essen- 
 tial to this kind of evidence, that the charges appearing in the handwriting of 
 the party, are in such a state that they may be presumed to have been his daily 
 minutes of his business and transactions, in which regard is had to the degree of 
 education of the party, the nature of his employment and the manner of his 
 charges against other persons : Prince v. Smith, supra. Memoranda made upon 
 a slate and transcribed into a book five or six days afterwards, are not such 
 original entries as can be submitted to a jury as evidence. Nor will any pre- 
 vailing custom make them evidence : Forsyth v. Norcross, 5 Watts 432. En- 
 tries in a day-book, in order to their validity as evidence of a charge, must be 
 made as to time in the ordinary course of the business in which he is engaged, 
 who makes the charge. If they be delayed over one day, they are not legal evi- 
 dence to charge a defendant, unless under peculiar circumstances : Walter v. 
 Bollnian, 8 Watts 544. In an action by a blacksmith to recover a claim for 
 work done, the plaintiff produced a book containing entries, some of which he 
 swore were made by himself not later than the second day in the evening after 
 the work was done, and were partly taken from a slate and partly from his own 
 head. A witness was also produced, who testified that he made some of the 
 entries by copying them from the plaintiff's slate on the evening of the day on 
 which they were made or in the course of the next day ; Held, that the book 
 was admissible in evidence : Hartley v. Brooks, 6 AVhart. 189 ; see also Coggs- 
 well V. DoUiver, 2 Mass. 217. 
 
 2d. What is a book of original entries ? A tradesman's book of accounts veri- 
 fied by his own oath, was received in evidence, although kept in the ledger form, 
 and iiltliough it appeared from his own showing that he first made the charges
 
 ENTRIES IN THE USUAL COURSE OF BUSINESS. 494 
 
 on the back of them by Jeremy Thomas, Sir S. Evans's book-keeper, 
 to the book B. B. of Sir S, Evans. J. Thomas was proved to be 
 
 upon a slate, and after transferring them to his book, rubbed them off the slate : 
 Faxon v. Hollis, 13 Mass. 437. See also cases cited supra. 
 
 3d. Form and appearance of book. Shop-books verified by the oath of the 
 part}"-, though not kept regularly in the manner of a day-book, are competent 
 evidence, with the supplementary oath of the party, if living, to prove the items 
 charged and the jury are to judge of their credit : Coggswell v. Dolliver, Faxon 
 V. Hollis, siqyra. But where a tradesman's day-book contains marks which 
 show the items transferred to his ledger, the ledger must be produced that the 
 other party may have the advantage of any items entered therein to his credit : 
 Bince v. Swett, 2 Mass. 569. But the court will not permit to go'to the jury 
 entries made on the first leaf of a tradesman's book before the first page : Lynch 
 V. McHugo, 1 Bay 33. A mutilated piece of paper, which appears to have been 
 torn out of a book, in which neither the name of the plaintiff nor of the defendant 
 appears, which contains no charges against the defendant, and which is unin- 
 telligible without explanation by the plaintiff, is not acmissible in evidence as 
 a book of original entries: Hough v. Doyle, 4 llawle 291. A book of entries 
 manifestly erased and altered in a material point cannot be permitted to 
 go to the jury as a book of original entries and ought to be rejected by 
 the court unless the party offering it gives an explanation which does away 
 with the presumption arising from its face : Churchman v. Smith, 6 Whart. 
 146 ; see also Frince v. Smith, supra. It is not a valid objection to the re- 
 ception in evidence of original entries, that the book in which such entries 
 are made contains other charges which are admitted not to be original : Ices v. 
 Niles, 5 Watts 323. 
 
 The book of original entries of a party claiming for goods sold or work or 
 labor done, is not the best or only evidence of the claim ; which may be proved 
 aliunde; Adams v. Col. Steamboat Co., 3 Whart. 75. When the plaintiff in an 
 action of book debt for the purpose of discrediting the defendant's account, of- 
 fered evidence to show that the defendant was generally reputed to keep inaccu- 
 rate, false and fraudulent accounts, and that the defendant's books kept by him 
 were generally reported to be inaccurate, false and fraudulent, and deficient in 
 carefulness, integrity and truth ; it was held that such evidence was inadmissi- 
 ble : Roberts v. Ellsworth, 11 Conn. 290. 
 
 Sewall, J., in Coggsivell v. Dolliver, thus sums up the law upon the subject : 
 " Books offered as evidence may be rejected by the court as incompetent or when 
 admitted may be treated as unworthy of credit. I recollect but two cases of 
 objections, which have been allowed against books as rendering them incompe- 
 tent evidence. To be admitted in evidence they must appear to contain the first 
 entries or charges by the party, made at or near the time of the transaction to 
 be proved, and when the contrary is discoverable upon the face of the book or 
 comes out upon the examination of the party, they ought to be rejected as in- 
 competent evidence. Fraudulent appearances or circumstances such as material 
 and gross alterations, false additions, &c., are also objections to the competency 
 of the book in which they a,re discoverable or against which they may be proved 
 in any manner. Objections to the credit of books admitted in evidence are of 
 various kinds, which there is no occasion to enumerate. The method in which
 
 494 PRIVATE DOCUMENTS. 
 
 dead, and the Court of K. B., on a trial at bar, admitted the book 
 so referred to, not only as to the six, but likewise as to the other 
 two in the hands of Sir Biby Lake, the son of Mr. Lahe.'^ 
 r*4.Q'"1 *^^^ ^^® ^^^® ^^ Smartle v. Williams, where the question 
 was whether certain mortgage-monej had really been paid, 
 a scrivener's book of accounts (the scrivener being dead) was held 
 to be good evidence of payment.'' 
 
 ■ B. N. P. 282. And here it may be remarked, that although the statute 7 
 Jac. I., c. 12, enacts that a shop-book shall not be evidence after the expiration 
 of a year, it does not therefore make it evidence within the year, except under 
 special circumstances (2 Salk. 690) ; and that in some cases it is evidence after 
 the expiration of the year. 
 
 *• B. N. P. 283 •, in this case it does not appear that the attorney had admitted 
 the payment of the money by the entry in his book ; but most probably such 
 
 the book has been kept, as when the charges to be proved have been entered to 
 a particular account like the entries of a ledger, and not like those of a day- 
 book, is an objection to the credit of the book. The one method leaves a greater 
 opening to fraud and falsehood than the other. M. 
 
 A blacksmith's day-book of entries transferred from a slate is competent : 
 Ewart v. Mori-ell, 5 Harring. 126 ; Sandis v. Turner, 14 Cal. 573; Whitnejj v. 
 Saivi/er, 11 Gray 242. A book is admissible though the entry was made upon 
 information received from one who did the work : Bailey v. Barnelly, 23 Ga. 
 582; Jackson v. Evans, 8 Mich. 476. A party's books are evidence to charge an 
 after-discovered principal, although the entry be against the agent : Smith v. 
 Jessvp, 5 Ilarring. 121. A book is not incompetent although some of the entries 
 are falsified: Goseunch v. Zehley, 5 Harring. 124. Upon the production of mu- 
 tilated books, it is proper for the jury to consider their appearance, and among 
 other things, any evidence they present of a fraudulent alteration : Pittsjield v. 
 Barnstead, 40 N. 11., 477. The general character of a book of original entries 
 may be shown to impeach its credibility : Funk v. Ely, 9 Wright, 444. 
 
 And see further, Bland v. Warner, 65 N. C. 372 : Kennedy v. Crandall, 3 
 Lans. 1 ; Goxild v. Conway, 59 Barb. 355; Neville v. Northcott, 7 Cald. 294; 
 Hart V. Livinyston, 29 Iowa, 217; Kelton v. Hill, 58 Me. 114; Adams v. Coul- 
 liard, 102 Mass. 167 ; Burkson v. Goodman, 32 Tex. 229; Halliday v. Butt, 40 
 Ala. 178 : Moody v. Roberts, 41 Miss. 74; Leisman v. Otto, 1 Bush 225. Book 
 entries made from information of others are inadmissible : Thomas v. Price, 30 
 Md. 483. See liigys v. Weise, 24 Wis. 545. As to books of deceased person con- 
 taining charges of goods sold and delivered, sec Hoover v. Gehr, 12 P. F. Smith 
 136. When entries are made by mistake in a wrong name, they may be used 
 against the party interested : Schettler v. Jones, 20 Wis. 412. As to physician's 
 books of entries, see Clarke v. Smith, 46 Barb. 30. As to pass-books, see Hovey 
 V. Thompson, 37 111. 538. Entries in partnership-books, when evidence against 
 copartners, sec Clement v. Mitchell, 1 Phill. (Eq.) 3 ; Kahn v. Bolte, 39 Ala. 66. 
 L'nless it appears that a partner has been denied access to the partnership books, 
 the cntrieK are evidence for and against each partner: Hallcr v. Williamowicz 
 23 Ark. 500.
 
 ENTRIES IN THE USUAL COURSE OF BUSINESS. 495 
 
 So, in Champneys v. Pech^" tlic plaintiff, in order to prove the 
 delivery of his bill as an attorney, proved the death of Datvling, 
 who had been his clerk, and produced the bill, with an endorsement 
 on it in the handwriting of the deceased clerk, "March 4th, 1815, 
 delivered a copy to Mr. Peck." The plaintiff furtlier proved that 
 the indorsement existed at the time when, according to its purport, 
 the bill had been delivered; that it was tlie business of Bawling to 
 deliver the bill; and that such an indorsement was usually made in 
 the common course of business upon the copy kept. Lord Ellen- 
 borough held this to be primd facie evidence of the delivery of the 
 bill, and the plaintiff had a verdict.^ Again, in Doe dem. Pattes- 
 hall V. Turford,^ instructions having been given to an attorney, B., 
 to give the defendant notice to quit, he told his partner, who pre- 
 pared three notices and three copies, and went out and returned in 
 the evening, when he delivered to B. the three copies, on one of 
 Avhich, being the copy of that to defendant, was a memorandum by 
 him that it had been served on defendant. It was shown to be the 
 invariable *practice of the clerks in this office, when they r^iq/^-i 
 served notices to quit, to endorse a memorandum on the 
 duplicate of the fact and time of service. After the partner's death 
 this was admitted as evidence of the facts endorsed. So, in Poole v. 
 Bicas,^ where a notary's clerk had at the time of presenting a bill, 
 which was dishonored, made a memorandum in the notary's books, 
 in the usual course of business, of such dishonor : it was held admis- 
 sible after his death. 
 
 In Chambers v. Bernasco7ii,^ however, the action was brought by 
 the plaintiff to try the validity of a commission of bankruptcy issued 
 against him. He had been arrested on the 9th of November, 1825, 
 and it was a question material to the act of bankruptcy, whether he 
 
 was the fact, and therefore this case would appear to be referrable to the class 
 of entries against interest, supra, p. 480. 
 
 ■^ 1 Stark. C (2 E. C. L. R.) 4U4. An agent employed to execute an order of 
 removal, after returning from so doing, signed an endorsement on the order to 
 the effect that he had executed it, and the court held, that, assuming such en- 
 dorsement to be i-equired and made in the usual discharge of the duty of re- 
 moval, it was admissible to prove the execution : Ji. v. Diikiiifiehi, 11 Q. B. (63 
 E. C. L. R.) 678. 
 
 "^ The cause was undefended. The ruling of Lord Ellenborough in this case 
 has been questioned more than once, but seems now to be fully confirmed. 
 
 « 3 B. & Ad. (23 E. C. L. R.) 890. 
 
 ' 1 Bing. N. C. (27 E. C. L. R.) 649. And see Marks v. Lahee, 3 Bing. N. C. 
 (32 E. C. L. R.) 208. 
 
 8 1 C. & J. 451.
 
 496 PRIVATE DOCUMENTS. 
 
 had been arrested in South Molton Street, or at his cottage, Maida 
 Hill, Paddington. In order to establish an act of bankruptcy by 
 keeping a house, &c., at Paddington, the officer who arrested the 
 plaintiflf being dead, his follower was called, who swore that the ar- 
 rest took place at Paddington. Tbe plaintiff, to establish an arrest 
 in South Molton Street, offered in evidence, from the files of the 
 office of the under-sheriff of Middlesex, a paper annexed to the writ, 
 signed by the deceased officer, and addressed to the under-sheriff of 
 Middlesex, as follows : 
 
 " 9th Nov., 1825. I arrested H. Chambers in South Molton Street, 
 at the suit of W. B." 
 
 By the course of the office the officer was required, immediately after 
 the arrest, and before taking a bail-bond, to transmit to the sheriff's 
 office a memorandum, or certificate of the arrest ; and for the last 
 few years, (but not, as it seems, at the time of the arrest,) an account 
 of the place of arrest had also been required from him. On such 
 returns the officer and his sureties were charged by the sheriff, and 
 returns were made upon them ; the evidence was admitted, and the 
 r*4Q71 pl^i'^tiff ^^d ^ verdict. Upon a *motion for a new trial it 
 was contended, on the part of the plaintiff, that the docu- 
 ment was admissible, as being a written declaration of a fact made 
 by a person peculiarly cognizant of the fact, and against his interest. 
 The Court of Exchequer held, that the evidence was inadmissible. 
 Lord Lyndhurst, C. B., was of opinion that the principle contended 
 for went beyond the former cases. Bayley, B,, was of opinion that 
 the instrument was not admissible in evidence at all, inasmuch as the 
 entry could not be said to militate against the interest of the officer : 
 and he also intimated his further opinion, that although the instru- 
 ment was admissible, it would not be admissible to prove the circum- 
 stance of the place where the arrest occurred, as it was no part of 
 the officer's duty to state the jjlace where the caption took place. 
 Upon a writ of error*" on a bill of exceptions afterwards tendered, 
 the Court of Exchequer Chamber supported this view, and Lord Den- 
 man, C. J., in delivering the opinion of tlie court, said they were "all 
 of opinion that whatever effect may be due to an entry made in the 
 course of an office, reporting facts necessary to the performance of a 
 duty, the statement of other circumstances, however naturally they 
 may be thought to find a place in the narrative, is no proof of those 
 cii-cumstanccs." The ground, then, on which the evidence in this 
 case was rejected, was, that the officer had gone beyond the sphere 
 
 " 1 C. M. & K. 347 ; and see Lloyd v. Wait, I Phill. 01.
 
 PROOF OF PRIVATE DOCUMENTS. 497 
 
 of his office, or at least that there was no duty cast on him of enter- 
 ing the place of arrest, and it was rejected simply upon that ground, 
 leaving the general principle of the admissibility of entries in the 
 course of duty untouched.' 
 
 In order to prove a lease of lands to H. and assignments by him 
 to P., and by P. to Sir E. C, and that the land was parcel of a 
 manor, an old book found in the muniment room of the party to 
 whom the manor belono-ed was produced. *Amonffst other 
 entries and receipts in the writing of the then steward, this ^ -' 
 book contained an entry of the lease, which was an under-lease, 
 reciting a lease from the lord, and a minute that '^ IT.'s widow hath 
 assigned to Sir J5. C, who yet claimeth ten years to come." The 
 book was held to be not receivable in evidence, as there was no suffi- 
 cient evidence that it was part of the dutt/ of the steward to make 
 an entry of the terms of such a lease.'' 
 
 The duty, it would also appear, must spring from some relation 
 recognized by law. Thus, an entry in a book kept at the Great 
 Synagogue of the Jews in London, made by the chief rabbi, in the 
 course of his functions, of his having performed the rite of circum- 
 cision upon a child (which by the Jewish law must be performed on 
 the eighth day after birth), was held by Lord Denman, C. J., after 
 conference with Patteson, J., not to be receivable in evidence on an 
 issue as to the age of the party.^ 
 
 And, as already suggested, the entry should be made contempora- 
 neously by one cognizant of the facts, and who does not derive his 
 information merely from third persons. Hence, where it was the 
 duty of a workman in a coal pit to give notice to the foreman of all 
 coal sold, and of the foreman to enter it in the books, but the foreman 
 not being able to write employed B. to make the entries for him by 
 his direction, who every evening read the entries over to him ; it was 
 held that these entries, produced by B. were not evidence after the 
 death of the workman and foreman, of the delivery of the coals."* 
 
 Next, as to the proof of private documents. The proof of a deed, 
 agreement, or other instrument is either, First, by witnesses ; Sec- 
 ondly, by admission ; or, Thirdly, by enrolment. If by witnesses, 
 
 * See per Tindal, C. J., and Park, J., Poole v. Dicas, 1 Bing. N. C. (27 E. C. 
 L. R.) 649 ; De Rutzen v. Farr, 4 Ad. & E. (31 E. C. L. R.) 53. 
 
 ^ Doe dem. Padwich v. Skinner, 3 Ex. 84'; s. p. in error, 20 L. J. 297. 
 
 ' Davis V. Lloyd, 1 C. & K. (47 E. C. L. R.) 275. 
 
 '^ Brain v. Preece, 11 M. & W. 773. The book was not signed by the work- 
 man, or shown to have been ever seen by him. 
 30
 
 499 PRIVATE DOCUMENTS. 
 
 the instrument must be produced," *or be proved to have 
 
 r*4991 1 • 
 
 *- -■ been lost^ or destroyed, or to be legally unattainable," or in 
 
 the possession of the adversary,P or in the custody of the Court of 
 
 Chancery,'* &c. If produced, it is either attested or not attested. 
 
 If attested, the attesting witness must be called,"" or his absence must 
 
 be accounted for,' and his handwriting proved ;' or it must appear 
 
 that the instrument is thirty years old," and came out of the proper 
 
 custody." ^ If it be not attested, the handwriting of the obligor should 
 
 be proved."' If it has been lost, or destroyed, or so situated that its 
 
 production cannot be enforced, proof must be given of the fact,'' and 
 
 that it was regularly stamped and executed,^ and then secondary 
 
 evidence must be given of its contents.^ If it be in the adversary's 
 
 possession, proof must be given of such possession, and of notice* to 
 
 produce it, and of its regular execution (except in some particular 
 
 instances), and of its contents. *" 
 
 In order to prove a deed, agreement, or other private document, 
 
 ° Infra, pp. 499, 500. 
 
 " If the instrument be in the custody of a third person, its production is 
 usually enforced by means of a Avrit of subpoena duces tecum. And in this 
 case, of course, notice to the opposite party to produce will not entitle the other 
 to give secondary evidence: Whitford v. Tutin, 10 Bing. (25 E. C. L. R.) 
 369. For the proceedings upon this writ see the title, Subpcena duces 
 
 TECUM. 
 
 p In many instances the court will assist a party in obtaining an inspection 
 or copy of the instrument, on motion. See 14 & 15 Vict. c. 90, and tit. 
 Inspection. 
 
 1 Secondary evidence was held to be inadmissible of a letter filed in the Court 
 of Chancery, it being in the power of either party to produce it on application 
 to the court: Williams v. Munnings, Ry. & M. (21 E. C. L. R.) 18. So, where 
 a document had been deposited in Chancery, and an order made for delivering 
 it to the party, it was held to be so far within his control that on his not pro- 
 ducing it secondary evidence might be given : Bush v. Peacock, 2 M. & Rob. 
 162. 
 
 •■ Infra, p. 503, 504, et seq. ' Infra, p. 512, et seq. 
 
 ' Infra, p. 519. " Infra, p. 521 . 
 
 " Infra, p. 524. " Infra, p. 529. 
 
 * Infra, p. 530. ^ Mfra, p. 541. 
 
 ' Infra, p. 542. * Infra, p. 561, 565. 
 
 ''Infra, p. 541, 576. 
 
 ' The enactment of a law which allows parties to be witnesses does not change 
 the rule that the execution of an instrument under seal must be proved by the 
 Hubscriljing witness: Iladnell v. Smith, 2 Sweeny 401 ; 10 Abb. Pr. N. S. 86; 
 41 How. Pr. 190; K(dmes v. O'errish, 7 Nev. 31. As to what is prima facie 
 evidence of a document, see Grannies v. Irwin, 39 Ga. 22.
 
 PROOF OF PRIVATE DOCUMENTS. 500 
 
 it is necessary first to produce the deed, or to *excuse the r^rnA-i 
 omission by proof that it has been lost or destroyed, or is in 
 the hands of the adversary, who has had notice to produce it: for 
 the best evidence of the contents of a written instrument consists in 
 the actual production of the instrument ;" and secondary evidence of 
 it cannot be admitted, until the impossibility of producing it has 
 been manifested to the Court.*^ Where the deed has been pleaded 
 with a profert, the production cannot be supplied by proof of the 
 party's inability to produce the deed/ 
 
 If, upon production of an instrument, any rasure or blemish 
 appear upon its face, the party producing it ought to explain how the 
 defect arose,^ and to show *that it was made before the exe- r^rn-i-i 
 cution, or that it was made after the delivery, by a stranger, 
 
 * Printed copies of statements of annual accounts of a turnpike trust produced 
 from the office of the clei-k of the peace (to which the orif^inals signed by the 
 chairman had been returned pursuant to 3 Geo. IV. c. 126, s. 78), are not ad- 
 missible in an action against the trustees, without showing the originals to have 
 been lost or destroyed : Pardoe v. Price, 13 M. & W. 2G7. 
 
 ^ In some cases, however, where the deed has been enrolled, an examined 
 copy of the enrolment is evidence : see Enrolment. And a duplicate original 
 is evidence, as in the case of an attorney's bill : Anderson v. May, 2 B. & P. 
 237 ; see also Vol. II., tit. Notice ; Jory v. Orchard, 2 B. & P. SU. A bill of 
 exchange must be produced in order to prove its identity with one admitted to 
 have been received by the defendant, and paid into his banker's, although no 
 other had been received by the banker : Atkins v. Owen, 2 Ad. & E. (29 E. C. 
 L. R.) 35. 
 
 ® Smith V. Woodward, 4 East 585. In such case the party who has made 
 the profert should move to amend before the trial : Ibid. It will be too late to 
 make the application at Nisi Prius : 1 Stark. C. (2 E. C. L. II.) 74. The 
 counterpart will, however, suffice, if executed as alleged : Pearse v. Morrice, 3 
 B. & Ad. (23 E. C. L. R.) 396 ; but see Pitman v. Woodbury, 3 Ex. 4. 
 
 ^ Henman v. Dickenson, 5 Bing. (15 E. C. L. R.) 183 ; B. N. P. 255 ; Clifford 
 V. Parker, 2 M. & G. (40 E. C. L. R.) 909. And where the alteration, e. g., on 
 a bill is evident, it has been held that it cannot be left to the jury upon bare 
 inspection to say whether it was made before or after the bill was made : 
 Knight v. Clements, 8 Ad. & E. (35 E. C. L. R.) 215. These were all cases, it 
 may be observed, of bills or notes. It has, however, been recently held by the 
 Court of Q. B., that where erasures and interlineations appear upon a deed, the 
 presumption is that they were made at the time of execution, for fraud is not to 
 be presumed, and the judge is to leave it to the jury, upon the deed itself, 
 whether they were then made or not : Doe dem. Tatham v. Cattermore, 20 L. 
 J., Q. B,, 364. But, in order to render explanation necessary, the fact of the 
 instrument having been altered must in general be pleaded: see Hemming v. 
 Trenery, 9 Ad. & E. (36 E. C. L. R.) 926 ; and tit. Bill of Exchange— Deei>— 
 Policy — Will.
 
 501 PRIVATE DOCUMENTS. 
 
 if tbc rasure or interlineation has been made in an immaterial 
 point. ^ If the deed appear to be mutilated, it is primd facie evi- 
 dence of cancellation ;'' but proof may be given that the cancelling 
 r*^0'>n ^^^ ^^ accident,' or that it was *effected by fraud and im- 
 proper practice.'' If in the course of the inquiry the time 
 of the delivery should become material, it should be proved by the 
 attesting witness, if there be one, and if not, the date of the deed 
 will be evidence of the time of delivery.' If the erasure existed 
 previously, the fact may be proved by any person who saw it; but 
 the state of the deed at the time of its execution is best proved by 
 
 « A material alteration in an instrument, whether made by a party or a 
 stranger, is fatal to its validity, and it cannot be enforced by action ; but any 
 estate conveyed by it is not affected, inasmuch as that passed at the time of 
 execution, and cannot be affected by anything subsequent : Davidson v. Cooper^ 
 11 M. & W. 778 ; Doe v. Bingham, 4 B. & Aid. (6 E. C. L. R.) 672 ; and there- 
 fore it may be given in evidence to prove a right created by its having been 
 executed, or any collateral fact: Agriculturist Cattle Insurance Company v. 
 Fitzgerald, 20 L. J., Q. B. 244. By agreement between the plaintiff and de- 
 fendant, a house, therein mentioned as No. 38, was agreed to be let to the 
 plaintiff, but the plaintiff entered and occupied No. 35, which was the house 
 really meant, and the agreement after delivery was altered, it was not known 
 by whom, by changing 38 to 35 on an erasure ; it w.as held admissible to show 
 the terms of the holding : Hutchins v. Scott, 2 M. & W. 809. So in Lord Falmouth 
 v. Roberts, 9 M. & W. 469, where the defendant held as tenant from year to year 
 on the terms of an agreement as to tillage, &c., which, upon being produced, 
 appeared originally to have contained a habendum for seven, which had been 
 altered to fourteen years, the document was held admissible without explana- 
 ation, as the alteration could not make the defendant hold according to the 
 custom of the county, and the term was immaterial. 
 
 '' See as to the effect of cancellation. Vol. II., tit. Deed ; Doe v. Bingham, 4 
 B. & Aid. (6 E. C. L. R.) 672. The insertion by a stranger of " hundred" be- 
 tween "one" and "pounds" in the condition of a bond, consistent with the 
 obvious sense, and which could not alter its operation, is immaterial : Waugh 
 v. Bussell, 1 xMars. 311 ; 5 Taunt. (1 E. C. L. R.) 707. Semble, that a letter, 
 a considerable part of which appears obliterated, is not evidence : 1 Anst. 227 ; 
 Shep. Touch. 68. 
 
 'Palm. 403; 1 Mod. 11; R. v. SIdbthwaite. Certificate of 1774, from the 
 parish chest, one of the names of the allowing justices was wanting ; the cer- 
 titicatc being in a torn and decayed state, the court held that the finding of the 
 justices below of the due making of tlie certificate wiis conclusive of the fact: 
 Mich. 1833. Or that it was done under a mistake: Perrott v. Perrott, 14 East 
 4'i3. 
 
 * Iletl. 138, Beckrow's case. 
 
 ' Sindair v. liaggalej/, 4 M. & W. 312; Anderson v. Weston, 6 Bing. N. C. 
 (37 E. C. L. R.) 29(5 ; Poicz v. Glossop, 2 Ex. 191. But see an exception where 
 it is tendered as proof of tlie petitioning creditor's debt, in Wright v. Lainson, 
 2 M. & W. 743.
 
 PRODUCTION. 502 
 
 an attesting witness, if he recollects it. Where a deed operates as 
 to different parties from the time of execution by each, it will be 
 binding on one who conveys by that deed, if complete as to him 
 at the time, although it has been executed by another party at a 
 time, when blanks were left which were immaterial to that party."* 
 
 " A mortgagee conveyed to the mortgagor the legal estate, on being paid the 
 mortgage money, and the latter reconveyed to trustees to secure the payment of 
 an annuity ; at the time of execution by the mortgagee the deed contained 
 blanks for sums to be received by the mortgagor from the grantees of the 
 annuity, and these were all filled up before the execution of the deed by the 
 mortgagor, but several interlineations were made in that part of the deed after 
 the execution by the mortgagee. It was held that the whole might be con- 
 sidered as one transaction, operating as to the different parties from the time of 
 execution by each ; and that the deed operated as a good conveyance of the 
 estate from the mortgagor to the trustees : Doe v. Bingham, 4 B. & Aid. (6 E. 
 C. L. R.) 672; Hall v. Chandless, 4 Bing. (13 E. C. L. R.) 123 ; and see West 
 v. Steward, 14 M. &, W. 47. Where a blank was left in a composition deed at 
 the time of execution, in order to ascertain the amount, but tilled up the next 
 day and signed, a re-execution was presumed: Hudson v. Revett, 5 Bing. (15 
 E.'C. L. R.) 368; Spicery. Burgess, 1 C, M. & R. 129; and see West v. Steward. 
 But in general, an instrument under seal containing blanks in a material point, 
 which are afterwards filled up by a third person, even with the consent, though 
 not under seal of the executing party, is wholly void, and can neither pass an 
 interest, nor be enforced as a deed against him : Hibhlewhite v. McMorine, 6 M. 
 & W. 200. 
 
 ^ In Prevost v. Gratz, Peters C. C. 369, and in Morris v. Vanderen, 1 Dall. 67, 
 it was held that the legal presumption is, that an alteration or erasure in an 
 instrument was made after its execution. In regard to negotiable paper, it 
 seems to be settled that an alteration apparent on the face of a bill or note is 
 presumed to have been made subsequent to execution and delivery : Hills v. 
 Barnes, 11 N. H. 395; Warren \. Lay ton, 3 Harring. 404 ; Simpson \. Stack- 
 house, 9 Barr]86; ClarTc v. Eckstein, 10 Harris 507 ; though there are cases 
 which decide that the question is still one of fact to be left to the jury : Crab- 
 tree V. Clark, 7 Shepl. 337 ; Davis v. Carlisle, 6 Ala. 707 ; Bank v. Lnm, 7 How. 
 Miss. 414 ; Wilson v. Henderson, 9 S. & M. 375. 
 
 As to deeds and other papers, there are cases both ways. That the party 
 producing must explain what appears to be an erasure : Herrick v. Malin, 22 
 Wend. 388 ; Tillon v. Ins. Co., 7 Barb. S. Ct. 564 ; Acker v. Ledyard, 8 Ibid. 
 514; Jordan v. Steivart, 11 Harris 244; Burnham v. Ayer, 35 N. H. 351. 
 Contra, Bliss v. Mclntyre, 18 Vt. 466 ; Mattheics v. Coalter, 9 Mo. 705 ; Beaman 
 \. Eussell, 20 Vt. 205 ; Smith v. McGowan, 3 Barb. S. Ct. 404; Simpsun v. 
 Stackhouse, 9 Barr 186 ; North River Meadow Co. v. Shrewsbury Church, 2 N. 
 J. 424; Wikoff^s Appeal, 3 Harris 281 ; Boothbyv. Stanley, 34 Me. 115; Printup 
 V. Mitchell, 17 Ga. 558 ; Reed v. Kemp, 16 111. 445 ; Stoner v. Ellis, 6 Ind. 152; 
 Maybee v. Sniffen, 2 E. D. Smith 1. Where an alteration is suspicious, and 
 beneficial to the holder of the instrument, the party seeking to enforce it is 
 required to explain it before he can recover ; but where such is not the nature
 
 503 PRIVATE DOCUMENTS. 
 
 r*^0'R1 *■'■*' ^^^"^*^ appear, on the production of the instrument, 
 that it is properly stamped ;" and where a stamp is required, 
 the objection for the want of one ought to be taken in that stage, 
 and before the document is read. Although enrolment of the deed 
 be essential, it is not incumbent on the party who relies on the deed 
 to prove the enrolment ; it lies on the party objecting to prove the 
 negative." 
 
 The next step is to prove the legal requisites essential to the ex- 
 istence of the document as a deed, simple contract, bill of exchange, 
 will, or other instrument. ^ Circumstances necessary to make a doc- 
 ument evidence must be proved aliunde, and not from the document 
 itself. In order, for example, to make entries by a corporator evi- 
 dence, it must be first shown by other evidence that he was a corpo- 
 rator.'' 
 
 r*cA4n If the deed or instrument produced purport"" to have *been 
 I *5U4J \ \ ' 
 
 attested by one or more witnesses, whose names are sub- 
 scribed," the party must call at least one of the witnesses ; and in 
 
 ° See tit. Stamps, and tit. Bills of Exchange, &c. As to compelling the pro- 
 duction of documents for the purpose of inspection, or of procuring them to be 
 stamped, see Vol. II., tit. Inspection. The general rule is, that the court will 
 not make such an order unless the applicant be either an actual party to the 
 instrument or a party in interest : Ibid. Nor then where each has his own 
 part. In an action between A. and B., the court refused a rule to compel B. to 
 produce, for the purpose of being stamped, an agreement between B. and C, 
 although it appeared by the affidavit of C. that the act complained of by A. 
 arose out of this agreement: Lawrence v. Hooker, 5 Bing. (15 E. C. L. R.) 6. 
 
 Doe V. Bingham, 4 B. & Aid. (6 E. C. L. R.) 672. 
 
 P In general, for the particular proof, see the title of the instrument itself. 
 
 1 Dacies v. Morgan, 1 Cr. & J. 587. See Banhury Peerage case, 2 S. N. P. 76.3 ; 
 Adamihu-ate v. Synge, 1 Stark, C. (2 E. C. L. R.) 183 ; Freeman v. Phillips, -i 
 M. & S. 486. 
 
 ■■ Where an agreement contained an attestation clause, and subjoined to it the 
 name of a person as an attesting witness, but the name was written in pencil 
 by one of the parties, and not by the supposed witness, it was considered that 
 there was no j^rinid facie evidence of any attestation, that it was unnecessary 
 to call the supposed witness, and that the execution of the parties might be 
 proved by other means: Cussons v. Skinner, 11 M. & W. 161. 
 
 " Where the seal of the Bank of England had been affixed by a paper wafered 
 to an indenture, on which paper was written, " Sealed by order of the Court of 
 Directors of the Governor and Company of the Bank of England, 12th December 
 1833. A. B., Secretary," it was held that it did not appear that A. B. was an 
 attesting witness. The statement was considered to be a mere memorandum 
 
 of the alteration it will be presumed to have been made either before the exe- 
 cution of tiie paper or by the consent of the parties: Huntington y. Finch, 3 
 Ohio (N. S.)445.
 
 PRIVATE DOCUMENTS. 504 
 
 cases Avliere the instrument labors under any doubt or suspicion, he 
 ought to call them all. The law requires the testimony of the sub- 
 scribing witness, because the parties themselves, by selecting him as 
 the witness, have mutually agreed to rest upon his testimony in proof 
 of the execution of the instrument, and of the circumstances which 
 then took place, and because he knows those facts whicli are proba- 
 bly unknown to others." So rigid is this rule,'' that it has been held 
 not to be superseded by a memorial of a purchase-deed, registered 
 in Middlesex under 7 Anne, c. 20, even against the ^parties 
 registering :^ nor in the case of an agreement to submit to ^ ' J 
 arbitration, by a rule of court reciting it, made under 9 & 10 Will. 
 III., c. 15, without calling the attesting witness ;* and it was for- 
 merly held not to be superseded in the case of a deed, by proof of any 
 admission or acknowledgment of the execution by the party himself j"^ ^ 
 
 that the party signing was the person deputed to affix the seal : Doe d. Bank of 
 England v. Chambers, 4 Ad. & E. (31 E. C. L. R.) 412. And where in compli- 
 ance with a rule of the Court of Bankruptcy, an attorney has attested an insol" 
 vent's petition for protection under 5 & 6 Fict. c. 116, and the Bankruptcy 
 Court has acted upon it, he is not an attesting witness within the rule, so as to 
 require him to be called to prove the petition: Bailey v. Bidwell, 13 M. & W. 
 73. But here the petition had been acted upon by the Court, was authenti- 
 cated by its seal, and was used to prove the mere fact that a petition had been 
 presented. If the schedule be used to show an admission by the insolvent, the 
 attesting attorney must be called : Streeter v. Bartlett, 5 C. B. (57 E. C. L. R.) 
 562. 
 
 ' Doe V. Durnford, 2 M. & S. 62 ; E. v. Harringworth, 4 M. & S. 350 ; Greg v. 
 Smgthes, Burr. 2275 ; Breton v. Cope, Peake, C. 30. The defendant would 
 otherwise be deprived of the opportunitj' of cross-examining the witness as to 
 the time of execution. Per Ashhurst, J., in Abbot v. Flumbe, Doug. 215. 
 
 ' Formei'ly (as has already been observed, supra), it was the practice to try 
 the existence of a disputed deed per patriam et testes ; that is, the witnesses to 
 the deed were sworn as part of the jury. 
 
 ^ Doe dem. Loscowhe v. Clifford, 2 C. & K. (61 E. C. L. R.) 448. 
 
 * Berney v. Read, 7 Q. B. (53 E. C. L. R.) 79, ante, p. 304. 
 
 '' Abbot V. Plumbe, Doug. 216. Although the acknowledgment be made in 
 court: Johnson v. Mason, 1 Esp. C. 39; vide etiam, Laing v. Eaine, 2 B. & P. 
 85. See the observations of Buller, J., on the case oi Abbot v. Pliunbe, 6 T. R. 
 367 ; and of Lord Ellenborough, E. v. Harringioorth, 4 M. & S. 350 ; Jones v. 
 Breirer, 4 Taunt. 46. The attesting witness must be called, although he be the 
 real party in the cause : Honegivood v. Peacock, 3 Camp. 196. But payment of 
 money into court on one of the breaches of covenant assigned, amounts to an 
 admission of the deed, although non est factum has been pleaded : Eandall v. 
 Lynch, 2 Camp. 357. And admissions are binding which are made by a party 
 
 ^ Fox et al. v. Eeil et al., 3 Johns. 477 ; Clements & Co. v. Eason et al., 1 
 Hayw. 18 ; Johnson v. Knight, 1 Cas. Law Rep. 93, ace. So in case of a receipt :
 
 505 PRIVATE DOCUMENTS. 
 
 whether the action was brought against the obligor himself, or against 
 his assignees after his bankruptcy," nor by proof of any admission of 
 the execution made by the defendant in his answer to a bill in equity.^ 
 
 But upon consideration the courts have held, that *admis- 
 
 r*5061 . ■ 
 
 '- -J sions by a party bound, when used against himself, do not 
 
 fall within the reason of the rule which forbids the reception of 
 
 secondary evidence until the absence of primary evidence has been 
 
 satisfactorily accounted for. That reason is, that the introduction of 
 
 secondary evidence when primary can be produced, the former being 
 
 in its nature derived from the latter, necessarily raises a suspicion 
 
 that the latter would have been unfavorable to the party who does not 
 
 produce it. To what a party himself admits to be true, it is obvious 
 
 that this reason does not apply ;* and, therefore, admissions made by 
 
 or his attorney, with a view to the trial of the cause ; therefore, if the deed be 
 admitted on a summons and judge's order, proof of the execution of it will be 
 dispensed with. Admissions thus made, or admissions agreed on between the 
 parties for the purposes of the cause, are conclusive and irrevocable : Wilkes v. 
 Hopkins, 1 C. B. (50 E. C. L. R.) 7?.7 ; La7iglei/ v. Lord Oxford, 1 M. & W. 
 508 ; Elton V. Larkins, 1 M. & Rob. 196 ; Doe v. Bird, 7 Car. & P. (32 E. C. L. 
 R.) 6. See tit. Admissions, pos^. 
 
 ' Abbot V. Plumbe, Doug. 215. 
 
 ^ Call V. Dunning, 4 East 53. See Bowles v. Langworthy, 5 T. R. 3G6 ; R. v. 
 Mlddlezoy, 2 T. R. 41, The question arising whether the plaintiff in equity had 
 demised certain tithes to a third party, the plaintiff admitted an exhibit, being 
 a notice by him of such demise, and another exhibit as a true copy of the lease 
 referred to in the notice : it was held in equity that the notice did not relieve 
 the defendant from the necessity of calling the attesting witness, as the admis- 
 sion of the copy did not put the party in a better situation than if the original 
 had been produced : Mounsey v. Burnham, 1 Hare 15. 
 
 * Slatterlie v. Pooley, 6 M, & W. 664 ; Howard v. Smith, 3 M. & G. (42 E. C. 
 
 Pearl v. Allen, 1 Tyler 4. In New York it has been decided, in the case of a 
 promissory note, that it may be proved by the maker's confession, without call- 
 ing the subscribing witness : Hall v. Phelps, 2 Johns, 451. In Willoughby v. 
 Carleton, 9 Johns. 136, it was decided that a deed could not be proved by the 
 grantee in an action to which he was not a party, without accounting for the 
 absence of the subscribing witness, because the opposite party had a right to 
 cross-examine him. That subscribing witness must be called, whatever be the 
 instrument; see Hagland v. Sebring, 2 South. 103; Williams v. Davis, 1 Penn. 
 177; January v. Goodman, 1 Dall. 208; Hechert v. Huine, 6 Binn, 16; even 
 though the instrument be lost: McMahan v, McGrady, 5 S. & R. 314. M. 
 
 Where the subscribing witness has become disqualified, testimony of his 
 handwriting is sufficient : Kecfer v. Zimmerman, 22 Md. 274. A deed properly 
 acknowledged or proved to entitle it to record is admissible in evidence : Hol- 
 brook V. Nichol, 30 111. 161. Where deeds are required to be recorded, the 
 record-books themselves are evidence : Morrill v. Gclston, 34 Md. 413 ; Sheehan 
 V. Davis, 17 Ohio St. 571.
 
 PROOF BY ATTESTING WITNESS. 506 
 
 a party are evidence against him of the contents of a document with- 
 out producing it or calling the attesting witness. 
 
 Thus in Boulter Y. Peplow/ a memorandum signed by the plaintiffs, 
 endorsed on a copy of the deed of settlement of a company, which 
 was in the following terms, " We do hereby certify that the within- 
 written deed is the *deed of settlement of the Universal Gas- 
 light Company, and that, to the best of our knowledge, the ^ -" 
 particulars therein contained are correctly set forth," was held to 
 render the copy primary evidence against the plaintiffs of the con- 
 tents of the deed. So the execution of a deed is suflBciently proved 
 as against the assignor of it, by proof of the assignment by him con- 
 taining a recital of it ; as in an action against a sheriff for taking 
 insufficient pledges in replevin, the assignment of the replevin bond 
 by the sheriff being admitted, it was held unnecessary to call the 
 attesting witness to the bond.^ 
 
 The general rule as to the necessity for producing the document 
 and proving it by the attesting witness applies whether the question 
 be between the parties to the deed, or strangers ;^ whether the deed 
 be the foundation of the action, or but collateral ;' or whether it still 
 exist as a deed, or has been cancelled ;^ and although the issue be 
 directed by a Court of Equity to try the date, and not the existence 
 of a deed.^ Upon an indictment against an apprentice for a fraudu- 
 lent enlistment, it was held that the indentures must be proved in the 
 
 L. R.) 254 ; Xing v. Cole, 2 Ex. 628 ; Toll v. Lee, 4 Ex. 230 ; Miirrai/ v. Gregory, 
 5 Ex.468; and see Vol. II., tit. Admissions. Such admissions are evidence, 
 thou<!;h they relate to a deed which is produced, but is inadmissible because it is 
 not properly stamped : Slatterlie v. Fooley. It does not, however, render the in- 
 strument itself admissible where the statement merely is as to its contents or 
 operation ; and the party using the admission cannot correct any erroneous ver- 
 sion it may present, without calling the attesting witness, and putting in the 
 document : Toll v. Lee. And where an action was brought upon an agreement 
 between the plaintiffs and the defendants, as modified by a memorandum of even 
 date endorsed upon it, which memorandum expressly referred to it as the within- 
 mentioned agreement : the plaintiffs at the trial duly proved the part of the mem- 
 orandum executed by the defendants, and it was held on a bill of exceptions 
 by the Exch. that they might then read the original agreement without calling 
 the attesting witness. In this case the court considered the memorandum, not 
 as an admission by the defendants of the agreement, but as itself an agreement 
 incorporating the original one by reference : Fishmongers'' Comp. v. Dimsdale 
 and others, 6 C. B. (60 E. C. L. R.) 896. 
 
 f 19 L. J., C. P. 190 ; Pritchard v. Bagshaw, 20 L. J., C. P. 161. 
 
 8 Plumer v. Brisco, 11 Q. B. (63 E. C. L. R.) 46. 
 
 ^ 4 East 53. » Manners v. Postan, 4 Esp. 239. 
 
 ^ Breton v. Cope, Peake, C. 30. 
 
 ' Edinburgh v. Crudell, 2 Stark. C. (3 E. C. L. R.) 284.
 
 507 PRIVATE DOCUMENTS. 
 
 regular way.™ And the same rule applies to all written agreements, 
 and other instruments attested by a witness, as, for instance, a notice 
 to quit in ejectment," in which case it was held, the proof of the 
 notice upon the tenant, and that it was read over to him without his 
 making any objection, was not sufficient. 
 
 Where the plaintiff avers that the defendant was bound 
 L J *by an indenture, the fact may be proved by the production 
 and proof of the execution of the part executed by the defendant." 
 Where the subscribing witness is called to prove the execution 
 of the deed, the proof consists. First, of the sealing ; Secondly, of 
 the delivery. First, the sealing, need not be with the seal of the 
 obligor, and not have been actually made at the time ; it is sufficient 
 if the obligor acknowledge any impression already made to be his 
 seal ;P and it seems that one piece of wax will suffice for several obli- 
 gors, if they make distinct and several prints upon it.'' In Lord Love- 
 lace s case,'' it was said that if one of the officers of the forest put 
 one seal to the rolls by the assent of all the verderers and other 
 officers, it is as good as if every one had put his several seal ; as in 
 the case divers men enter into an obligation, and they all consent, 
 and set but one seal to it, it is a good obligation of them all. And 
 if one partner, in the presence of the other, seal and deliver a deed 
 of sale for both, it is binding upon them both.^ Where a deed is 
 executed under some special authority, which prescribes the mode 
 
 "^ R. V. Jones, E. P. C. 822 ; B. v. Earringworth, 4 M. & S. 350. So in arson, 
 with intent to defraud the insurers, the policy must be produced and proved : 
 Doraii's case, 1 Esp. 127 ; R. v. Gibson, 1 Taunt. 98. 
 
 ° Doe V. Durnford, 2 M. & S. 62 ; Stone v. Metcalf, 1 Stark. C. (2 E. C. L. R.) 
 53. See also Higgs v. Dixon, 2 Stark. C. (3 E. C. L. R.) 180, where the same 
 was held as to an attested warrant to distrain. 
 
 " Burleigh v. Stihbs, 5 T. R. 465 ; Roe v. Davis, 7 East 363 ; Doe v. Pubnan, 
 3 Q. B. (43 E. C. L. R.) 622. In an action by the lessor against the assignee of 
 the lessee, the plaintiff having proved the execution of the counterpart, and that 
 the original had been delivered over to the defendant, it was held that he was 
 not bound to prove the execution of the original, which was produced by the de- 
 fendant out of the hands of a third person, to whom he assigned it over by a 
 deed reciting the original lease: Burnett v. Lynch, 5 B. & C. (11 E. C. L. R.) 
 589. It is not competent to a party, who has taken under a deed all the interest 
 which it gives, to dispute its due execution : Ibid. ; Doe v. Wainwright, 5 Ad. 
 & E. (31 E. C. L. R.) 520. But see Pitman v. Woodbury, 3 Ex. 4. 
 
 P Com. Dig., tit. Fait. 
 
 '' Shep. Touchst. 57 ; Perkins, c. 2, s. 134. 
 
 ' Sir W. Jones, 268. 
 
 ' Ball V. Dunsterville,4T. R. 313 ; Cooch v. Goodman, 2Q. B. (42 E. C. L. R.) 
 580 ; but sec Harrison v. Jackson, 7 T. R. 207.
 
 PROOF OF SEALING OF A DEED. 508 
 
 and form of execution, the execution will not be valid unless those 
 requisites be observed. Thus, where a certificate under the statute 
 8 & 9 Will. III., c. 30 (which requires certificates to be *under 
 the hands and seals of the churchwardens and overseers, or ^ ' -^ 
 the major part of them, or under tlie hands and seals of the overseers, 
 where there are no churchwardens), was signed by two churchwardens 
 and one overseer, but bore two seals only, the court held that it was 
 not a valid certificate. They said that it was the case of an execu- 
 tion of a power, and that in the execution of powers all the circum- 
 stances 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.* 
 
 In the case of Adam v. Kerr,"^ on an action on a bond alleged to 
 have been sealed, evidence was admitted to prove a custom in 
 Jamaica (where the bond in question had been executed) by substi- 
 tuting a mark with a pen for a seal. The Court of Common Pleas, 
 after a verdict for the plaintiff, subject to the opinion of the court, 
 granted a rule 7iisi to set aside the verdict and enter a nonsuit, but no 
 decision was given. ^ Proof of the delivery of a sealed instrument 
 
 * Eex V. Austrey, Easter Term, 1817. Hawkins v. Kemp, 3 East 410. See 
 tit. Power, and Sir E. Sugden's Treatise on Powers, where the whole subject of 
 Powers is most skilfully treated. 
 
 " 1 B. & P. 360. 
 
 ^ In Pennsylvania and Virginia a written or ink seal or scrawl is sufficient: 
 McDilVs Lessee v. McDiU, 1 Dall. 63 ; Long v. Ramsaij, 1 S. &, R. 72 ; Jones et 
 al. V. Logwood, 1 Wash. 42. But in the latter State there must be some ex- 
 pression in the body of the instrument to show that it was the intention of the 
 parties to give it the effect of a sealed instrument : Baird v. Blaigrove, 1 Wash. 
 170; Austin\s adm. v. Whitlock^s ex''ors., 1 Munf. 487; Anderson v. Bullock et 
 al., 4 Munf. 442. Aliter semble in Pennsylvania: Taylor et al. v. Glazer, 2 S. 
 & R. 504. In the case of the United States v. Coffin, it was held in the District 
 Court of South Carolina that a mark made with ink, in the form of a seal, was 
 sufficient to create a specialty, if acknowledged by the maker as his seal : Bee 
 140. In New Jersey, it has been decided that a written scrawl is not good as a 
 seal, except upon instruments for the payment of money: Overseer of IIo]7ewell 
 V. Overseers of AmweU, 1 Halst. 169 ; see NewhoWs ex' or. v. Lamb, 2 South. 
 449. In Warren v. Lynch, 5 Johns. 239, the Supreme Court of New York held 
 that a scrawl with a pen of L. S. at the end of a name is not a seal — that a seal 
 is an impression upon wax or wafer or some other tenacious substance capable 
 of being impressed — and that although a scrawl might be considered a seal and 
 render an instrument a specialty, in the place where it was executed, yet when 
 sued in New York, it must be treated as a simple contract and declared upon 
 accordingly. M. 
 
 The seal of a corporation may be a scrawl : Illinois Central E. R. Co. v. 
 Johnson^ 40 111. 5.
 
 509 PKIVATE DOCUMENTS. 
 
 will be evidence that the party adopts and acknowledges the seal to 
 be his ; and proof that he wrote his name opposite to the seal affords 
 presumptive evidence of the sealing and delivery of a deed in which 
 it was affirmed that he sealed it." 
 
 Where a party to a deed has acted under it for some time, and it 
 is produced from his custody, its execution by him may be presumed 
 against him, although there be a seal only, and no signature or attes- 
 tation. ^ 
 
 No particular form of delivery is requisite; it is sufficient if the 
 obligor, by any act, indicate his intention to put the deed into the 
 r^'im POS'^^s^'O" of ^^6 other party, as by *throwing it down upon 
 •- -■ the table for the other to take it up. So if a stranger deliver 
 it with the assent of a party to the deed."" If the deed be made by 
 a corporate body, it is sufficient to prove that it was sealed by the 
 corporate seal or any other which was used for the occasion, without 
 proving a delivery of the deed.'' But if the corporation, by their 
 letter of attorney, have appointed an agent to deliver the deed, it is 
 not their deed till delivery.^ ^ 
 
 ' Talhot V. Hodson, 7 Taunt. (2 E. C. L. R.) 251. 
 
 y Cherri/ v. Heming, 4 Ex. 633, note ; 5 Bing. (15 E. C. L. R.) 368. 
 
 ' Com. Dig. Fait, A. 3 ; Co. Litt. 36 a ; Thoroughgood's case, 9 Rep. 137, a; 
 Murray v. Earl of Stair, 2 B. & C. (9 E. C. L. R.) 82. A boy and his father 
 went to execute an apprentice-deed, binding the son ; they desired a person to 
 write their names opposite to two seals, which was done ; they took the instru- 
 ment to the master, and left it with him. This was held to be a sufficient 
 execution : E. v. Longnor, Inhab., 1 N. & M. (28 E. C. L. R.) 576 ; 4 B. & Ad. 
 (24 E. C. L. R.) 647. A deed between two parties purported to be under their 
 hands and seals. The signing and sealing by both were attested. The deed 
 was in the hands of the plaintiff, who sued the defendant on it in an action of 
 assumpsit, and both parties had admitted that it was signed, sealed, and 
 executed as it purported to be. The court held, that it must be presumed tp 
 have been delivered, being produced by the plaintiff, and therefore did not sup- 
 port the action of assumpsit: Hall v. BaUibridge, 12 Q. B. (64 E. C. L. R.) 699. 
 
 * Perk. c. 2, s. 132. The name used must be the same in substance with the 
 true name, but need not be the same in words and syllables : Mayor and Bur- 
 gesses of Lynn, 10 Coke 124 ; Croydon Hospital v. Farley, 6 Taunt. (1 E. C. L. 
 R.) 467 ; and 4 B. & Ad. (24 E. C. L. R.) 650. 
 
 •* Co. Litt. 36, a, note 5. 
 
 ' One of the subscribing witnesses to a deed did not recollect that it was de- 
 livered, but was sure that he should not have attested it, unless he had seen the 
 grantor sign and seal it or heard him acknowledge that he had done so ; another 
 did not recollect the delivery but was sure that he should not have attested it, 
 unless he had heard him acknowledge it as his act and deed for the purposes 
 therein mentioned, as it was his constant custom to require his acknowledgment.
 
 PROOF OF DELIVERY. 510 
 
 Although a party is under the necessity of calling the subscribing 
 witness," he is not concluded by the testimony of that witness, 
 
 • Jones V. Brewer, 4 Taunt. 46. 
 
 The third was out of the country and the fourth interested, but their hand- 
 writini^ proved; held a sufficient attestation of the deed : Ciirrie v. Donald, 2 
 Wash. 58. The execution of a sealed instrument is sufiSciently proved by the 
 production of the subscribing witnesses, who recognize their signatures and 
 remember the transaction, though neither remembers the fact of formal delivery : 
 Miller's estate, 3 Rawle 312. If the subscribing witnesses are unable to recol- 
 lect material circumstances, the testimony of another person who was present 
 at the time is admissible to establish these facts: Ibid. And where the witness 
 to an instrument offered in evidence by the defendant had become special bail 
 for the defendant, it was held that the handwriting of the parties to the instrument 
 and witness might be proved: Bell v. Cowyill, 1 Ashm. 8. If a witness become 
 interested in the destruction of an instrument of writing after its execution, evi- 
 dence of his handwriting will be received : Allen v. Allen, 2 Tenn. 172. G. 
 
 The subscribing witness to an agreement stated that he was called into the 
 room to sign the paper as a witness, but did not see the parties execute it, or 
 acknowledge they had done so, but they told him it was their agreement ; this 
 was held sufficient : Munns v. Dupont, 3 Wash. C. C. Rep. 42. So where one 
 testified that he was called into a room to witness the execution of articles of 
 agreement for the sale of lands ; that he did not see the vendor sign, seal or 
 deliver the papers, but he saw the money paid, and knew the handwriting to be 
 that of the vendor; it was held (one judge dissenting) that this was sufficient 
 proof to let the instrument go to the jury: Lesher''s Lessee \. Levan, 2 Dall. 
 So in Piggott v. Ralloxoay, 1 Binn. 436, a warrant of attorney was permitted to 
 go to the jury, upon a subscribing Avitness testifying that on a reference to his 
 minutes he found he was present at a certain place on the day of the date of 
 the warrant; that his name as attesting witness was in his own hand- 
 writing ; that the defeasance to the Avarrant was also in his own handwriting ; 
 and that the impression of the seal appeared to be taken from an engraving he 
 then and still had ; and that from all these circumstances, he was convinced 
 that he was present and witnessed the execution of the instrument. In an 
 action on a sealed bill, proof by the subscribing witness that he saw the 
 defendant sign his name to it, and heard him admit that it was his signature, but 
 did not hear him acknowledge that it was his seal, nor see him deliver it, was 
 held sufficient to go to the jury: Curtis v. Hall, 1 South. 148 ; see Berks and 
 Dauphin Turnpike Co. v. Myers, 6 S. & R. 12 ; Sigfried v. Leown, Id. 308 ; 
 Crawford v. State, 6 Har. & Johns, 231. In Churchill v. Speighfs Ex'ors., 2 
 Hayw. 338, where in an action on a single bill, the subscribing witness swore 
 that his name was in his handwriting, and that he attested a note from A. to B., 
 who assigned it to plaintiif, and that he attested no other ; that he did not 
 believe the signature to the note to be in A.'s handwriting, and that he did not 
 remember that there was a seal to it — it was left to the jury to determine 
 whether the evidence was sufficient. In South Carolina, it is held that it is not 
 necessary that a subscribing witness should recollect the time and occasion 
 when he subscribed the instrument, if he recognizes his handwriting and is
 
 510 PRIVATE DOCUMENTS. 
 
 if he cannot, or will not declare the truth. If the witness refuses to 
 testify/ the attestation may be proved by another witness.* Where 
 one of the witnesses to a will would not swear to the sealing and pub- 
 lication, Holt, C. J., held that it was sufficient to prove the attesta- 
 tion of the witness.^ If the witness admit *his signature as 
 
 r*5ll1 • • 
 
 •- -^ attesting witness, but prove that he did not in fact see the 
 
 instrument executed, proof of the handwriting of the obligor will be 
 sufficient.^ If the witness actually deny the due execution of the in- 
 strument, other witnesses may be called to contradict him ; and cir- 
 cumstantial evidence is admissible to prove the contrary.''^ So a wdl 
 
 "^B. V. Harringicorth, 4 M. & S. 350; Talbot v. Hodson, 7 Taunt. (2 E. C. L. 
 K.) 251. 
 
 'Per Lord Mansfield, Burr. 2224, 2225, where two of the witnesses to a will 
 denied their handwriting, and it was proved by the third. 
 
 ^ Daijrdl v. Glasscock, vSkin. 413. In many cases the witness is unable from 
 his memory to speak to the fact of execution ; if, however, he says that from 
 seeing his signature he is sure he saw the party execute, this is enough : 
 Maugham \. Huhhard, 8 B. & C. (15 E. C. L. E,.) 14; Bringloe v. Goodson, 5 
 Bing. N. C. (35 E. C. L. R.) 738 ; E. v. St. Martin, Leicester, 2 Ad. & E. (29 E. 
 C. L. R.) 210. 
 
 s Grellier v. Neale, Peake's C. 146, i. e., if no other attesting witness appear 
 on the instrument; and see Talbot v. Hodson, 7 Taunt. (2 E. C. L. R.) 251 ; 
 Burrows v. Lock, 19 Ves. 474 ; Lemon v. Bean, 2 Camp. C. 636 ; Fitzgei'ald v. 
 ^Zrfce, 2 Camp. C. 635 ; Ley \. Ballard, 3 Esp. C. 173, n. ; contra, Phipps v. 
 Parker, 1 Cam. 412; Boxer v. Rabeth, 1 Gow. 175. 
 
 ''And. 224, per Lord Mansfield, Doug. 206. A will of lands made before 7 
 Will. lY. & 1 Vict. c. 26, was attested by three witnesses, one being a marks- 
 man ; a person of the same name and supposed to be this witness, who was 
 very old and had known the testator, recollected nothing of the transaction ; 
 and the other two being dead, their handwriting was proved. The will had 
 been uncontested for sixteen years. It was held that the jui"y might presume 
 the due execution, although there was no other proof of the devisor's hand- 
 writing or authority. Doe dem. Davies v. Davies, 9 Q. B. (58 E. C. L. R.] 648. 
 
 assured that he never subscribed an instrument without having seen it duly 
 executed or acknowledged : Pearson v. Wightman, 1 Rep. Con. Ct. 344. So in 
 New Jersey, Deiin v. Mason, 1 Coxe 10. So in Virginia, Currie v. Donald, 2 
 Wash. 58. 
 
 ' Where a subscribing witness denies his signature, other witnesses may be 
 called to prove the execution of the instrument : Ducknall v. JFeat'cr, 2 Ohio 
 13. So also if he refuses to attend, under circumstances of fraud, and the 
 party has done all he can to procure his attendance : Baker v. Blount, 2 llayw. 
 404. G. 
 
 Where a subscribing witness to a deed does not remember its execution, but 
 states that his signature is genuine and that it would not have been placed there 
 unless he had been culled to witness it, this evidence is sufficient to render the 
 deed admissible: Graham v. Lockhart, 8 Ala. 9; Hemphill v. Dixon, 1 llempst.
 
 DENIAL BY ATTESTING WITNESS. 511 
 
 may be proved by the evidence of one witness, although two of the 
 attesting witnesses swear that the testator was incompetent.' And 
 where two witnesses to a will of lands swore that the testator did not 
 publish the will, and was incapable of doing so, the court, upon a 
 trial at bar, admitted witnesses to contradict them.'' In the celebra- 
 ted case of Loive v. Joliffe,^ the three subscribing witnesses to the 
 testator's will, and the two surviving ones to a codicil made four 
 years subsequent to the will, all swore that he was incapable of mak- 
 ing a will at the time of the will and codicil, or at any intermediate 
 time; and *yet the will was established upon the testimony p^^-ioi 
 of other witnesses.' ^ -^ 
 
 * Hudsoii's case, Skin. 79. 
 
 ^ And committed the two witnesses for perjury, taking security from the plain- 
 tiff to prosecute them : Hudson'' s case, Skin. 79. 
 ' 1 Bla. 365 ; and see Pike v. Badmering, Str. 1096. 
 
 235. A subscribing witness testified to his own signature to a mortgage, and 
 that it was signed and acknowledged by a person Avho was introduced to him as 
 the mortgagor. Another witness identified the signature thus made as that of 
 the mortgagor. Held that the mortgage was sufiiciently proved : Goodhue v. 
 Berrien, 2 Sandf. Ch. 630. Proof by the subscribing witness that he saw the 
 party deliver an instrument, already signed and sealed by him, is sufficient: 
 Hiygins v. Bogan, 4 Ilarring. 330. The identity of the grantor in a deed, will 
 be presumed from proof of the execution of the instrument by one of the same 
 name even though it appear that there are many others of that name : Flournoy 
 V. Warden, 17 Mo. 435. The testimony of one whose name appears as a sub- 
 scribing witness to a deed, executed about twelve years previously, that he had 
 no recollection of ever having seen and attested the deed, and believes he never 
 did, is not sufficient to show the instrument to be spurious, in opposition to 
 one witness who testifies to its execution by the parties, and of others who 
 state corroborating facts : Juzan v. Toulman, 9 Ala. 663 ; Hale v. Stone, 14 
 Ibid. 803. 
 
 ' That the subscribing witness or one of them, if competent, alive and within 
 the jurisdiction of the court must be produced : see Sheets v. DuJ'our, 5 Blackf. 
 549; Tramnell v. Roberts, 1 McMul. 305; Brock v. Saxton, 5 Pike 708 ; Handy 
 V. llie State, 1 Har. & Johns. 42 ; Sampson v. Grimes, 7 Blackf. 176 ; Woodman 
 V. Segar, 25 Me. 90; Mariner v. Saunders, 5 Gilm. 113; Edicards v. Sullivan, 
 8 Ired. 302 ; Spencer v. Bedford, 4 Strobb. 96 ; Jones v. Undericood, 28 Barb. 
 481 ; and that he may be contradicted and discredited by the party calling him : 
 Smith V. Ashill, 2 Strobh. 141. If he forgets or denies his attestation, other evi- 
 dence of its execution may be resorted to : Reinhart v. Miller, 22 Ga. 402. Where 
 names of persons are found on a deed in the usual place for subscribing wit- 
 nesses, and they are not parties to the deed, they will be presumed to be wit- 
 nesses to the instrument, though they are not stated to be such ; and therefore 
 where such a deed is to be proved, they must be produced or their absence 
 legally accounted for: Chaplain v. Briscoe, 11 S. & M. 372. The testimony of 
 one of the subscribing witnesses to a deed is sufficient to prove its execution,
 
 512 PRIVATE DOCUMENTS. 
 
 Declarations by a deceased attesting witness that he forged the 
 instrument, or has fraudulently altered it, are inadmissible."" But 
 where some of the witnesses are dead, and the survivor charges them 
 with fraud in the attestation, evidence of their good character may 
 be given to support the will." 
 
 Where the instrument purports to have been attested by a witness, 
 the party on whom the proof of the instrument lies must, unless the 
 instrument appear to be thirty years old (when it is to be inferred 
 that the witnesses are dead), either call an attesting witness or show 
 that the usual proof by means of the attesting witness has become 
 impossible. For this purpose he may prove that the attesting witness 
 is dead," has become blind, ^ or insane. "^ Previous to the recent Acts, 
 
 ™ Where there were two attesting witnesses and one denied all recollection of 
 having attested the deed, and doubted the genuineness of his own and the 
 defendant's signatures, and the other witness being dead, his signature and 
 that of the defendant were proved by other witnesses, declarations of the 
 deceased witness that he had frequently altered the deed were held not ad- 
 missible : Stobart v. Dryden, 1 M. & W. 615 ; and see Sussex Peerage case, 11 
 CI. & F. 85. 
 
 ° Provis V. Reed, 5 Bing. (15 E. C. L. R.) 435 ; Doe dem. Walker v. Stephen- 
 son, 3 Esp. 284. 
 
 ° Barnes v. Tompotcski, 7 T. R. 266. It seems that the ordinary presumption 
 as to the death of any party would be acted upon. See Vol. II., tit. Death — 
 Pedigree. 
 
 P Wood V. Drun/, Ld. Raym. 734; 12 Vin. Abr. T. b. 48, pi. 12; Pedler v. 
 Paige, 1 M. & Rob. 258. But in Crank v. Frith, 2 M. & Rob. 262, Lord Abin- 
 ger held that he ought to be called, in order to learn whether anything material 
 passed at the execution. 
 
 1 Bernett v. Taylor, 9 Ves. 381 ; Carrie v. Child, 3 Camp. 283. But inasmuch 
 as an insane person may be a witness, unless he is so devoid of understanding as 
 to be unable to testify : R. v. Hill, 20 L. J., M. C. 222 ; it would appear that he 
 
 unless the judge in his discretion requires the production of the others: Burke 
 V, Miller, 7 Cus. 547 ; White v. Woad, 8 Ibid. 413. So proof of the handwriting 
 of one witness is sufficient : Burnett v. Thompson, 13 Ired. 379. The acknow- 
 ledgment by the party himself that he executed the deed, or even his admission 
 in answer to a bill filed for discovery has been held not to dispense with the 
 testimony of the subscribing witnesses : Ellis v. Smith, 10 Ga. 253. Where the 
 name of a witness was subscribed by another without his knowledge or assent, 
 the party is allowed to prove it, and the instrument is treated like one not sub- 
 scribed : Ilandy v. The Slate, 7 liar. & J. 42. As to proof of the handwriting 
 of a subscribing witness when he is dead or beyond the jurisdiction of the 
 court: see Richards v. Skiff, ?> Ohio (N. S.) 586. The execution of an in- 
 Htrument not under seal may be proved by the admission of a party sign- 
 ing it, although attested by a subscribing witness : Giberton v. Ginachio, 1 
 Hilt. 218.
 
 ATTESTING WITNESS WHEN DISPENSED WITH. 512 
 
 lie might have proved that the witness was interested at tlie time of 
 
 the attestation, *which was therefore a nullity •/ or, that he ^ 
 
 . ^ ' ' r 5131 
 
 had since the attestation become so interested, ° as where he ^ -■ 
 
 had become the administrator of the obligee,' even though he dis- 
 qualified himself voluntarily by taking out administration."' But since 
 the recent changes all these persons are made competent witnesses. 
 He might also prove that the witness had married the person to whom 
 the instrument was given ;" and he may still prove that the witness 
 is abroad and beyond the process of the court, whether he be domi- 
 
 ought to be called and that fact ascertained by questioning him, or that fact 
 should be proved by other competent evidence. 
 
 •■ Swire v. Bell, 5 T. R. 371. But if a party, knowing that a witness was in- 
 terested, requested him to attest the instrument, he could not afterwards insist 
 upon the objection : Honeytoood v. Peacock, 3 Camp. 196 ; see stat. 6 & 7 Vict. 
 c. 85. The attesting witness to a will is competent, although he be named a de- 
 visee or legatee therein : 7 AVill. IV. & 1 Vict. c. 26. 
 
 » Swire v. Bell, 5 T. R. 371. See also Goss v. Traaj, 1 P. W. 287; Buckley 
 v. Smith, 2 Esp. C. 697 ; Godfrey v. Norris, 1 Str. 34 ; Honeywood v. Peacock, 3 
 Camp. 196. Where the plaintiff in an action on a charter-party had communi- 
 cated an interest to a witness to the charter-party after the execution of the in- 
 strument, it was held that evidence of his handwriting was inadmissible : Hovill 
 V. Stephenson, .') Bing. (15 E. C. L. R.) 493. 
 
 * Godfrey v. Norris, 1 Str. 34. 
 "Str. 34; 5 T. R. 371, supra. 
 
 * Buckley v. Smith, 2 Esp, C. 697. The majority of the judges seem to be of i" 
 opinion that a wife, if objected to, cannot under 14 & 15 Vict. c. 99, be a witness 
 
 for or agtainst her husband in an action brought by or against him ; per Jervis, 
 C. J., and Pollock, C. B., Westminster, November 27th. If she were a party 
 to the suit she clearly would be admissible. It may be observed, too, that if the 
 wife be inadmissible the husband would likewise be so, if the action were 
 brought by or against the wife, and he were not a party. 
 
 ^ So when the witness was, at the time of the attestation, the wife of the 
 obligor : Nelins v. Brickell, 1 Hayw. 19 ; and where the witness's name was 
 written by the obligor in his absence, he not having been present at the execu- 
 tion of the bond : Allen v. Martin, 1 Ca. Law. Rep. 373 ; evidence of the hand- 
 writing of the obligor is to be given. So if the handwriting of the subscribing 
 witness cannot be proved : Jones v. Blount, 1 Hayw. 238 ; Clerk v. Sanderson, 3 
 Binn. 192; Duncan v. Beard, 2 N. & McC. 400. Or if there be no subscribing 
 witness : Ingram v. Hall, Martin 1 ; s. c. Hayw. 193 ; Long v. Ramsay, 1 S. & 
 R. 72. Or it may be erased by a stranger : Wicke's Lessee v. Caulk, 5 Har. & 
 Johns. 36. M. 
 
 If a subscribing witness to a deed voluntarily incapacitates himself to testify 
 to its execution by becoming interested therein, such deed cannot be proved by 
 other evidence: McKinley v. Irvine, 13 Ala. 681. 
 
 31
 
 514 PRIVATE DOCUMENTS. 
 
 ciled tliere or not/ as in *Ircland/ That he has kept out 
 •- -'of the way at the instance of the adversary or party charged 
 in the suit,'' or that the witness cannot be found after diligent inquiry 
 made.*' 
 
 The nature of this inquiry may be collected from the following 
 cases. There were two witnesses to a bond which had been exe- 
 cuted in America : it was proved that Mwington, one of the wit- 
 nesses, was in America; and to show that William Moreton, the 
 
 y Prince v. Blackburn^ 2 East 250 ; Coghlan v. Williamson, Doug. 93; Holmes 
 V. Pontin, Peake's C. 99 ; Adam v. Kerr, 1 B. & P. 360 ; Willis v. Delancey, 7 
 T. R. 266; Wardv. Wells, 1 Taunt. 461 ; Hodnett v. Forman, 1 Stark. C. (2 
 E. C. L. II.) 90. That he went abroad two years ago, and has not been heard 
 of since : Doe v. Paul, 3 C. & P. (14 E. C. L. R.) 613. One of two subscribing 
 witnesses was dead, and the other had gone abroad twenty years before the 
 trial, and the witness who proved the latter fact, stated that he had not heard any- 
 thing of him since, but that he had applied to his brother, who informed hira 
 that he did not know where he was, whether in England or abroad. The Court 
 held, that proof of his handwriting ought to have been admitted ; and Lord 
 EUenborough observed, that proof of the fact of the subscribing witness's going 
 abroad twenty years ago (so large a portion of a man's life), and never having 
 been heard of since, was of itself sufficient: Doe d. Johnson v. Johnson, K. B. 
 Trin. T. 1818. In Doe d. Powell, 7 C. & P. (32 E. C. L. R.) 617 ; it was pro- 
 posed to show that a subscribing witness had stated Avhere he resided ; and 
 further, to show, that upon inquiry made at that place, the answer was that he 
 had gone to America, and then to prove in substance that some seafaring men 
 had said that they had seen the witness in America, but the evidence was re- 
 jected. But see infra, note [m), and the cases as to the evidence of the absence 
 of a witness, in order to admit his deposition or examination under a commis- 
 sion, ante, pp. 412, 4':9. 
 
 ^ Hodnett v. Forman, 1 Stark. C. (2 E. C. L. R ) 90; though he might have 
 been examined upon interrogatories : Glubb v. Edivards, 2 M. & Rob. 300. 
 
 » Pi/tt V. Griffith, 6 31oore (17 E. C. L. R.) 538 ; Burt v. Walker, Spooner v. 
 Payne, infra. In case of evidence of inquiries made after an attesting witness, 
 answers made even by strangei-s to inquiries duly prosecuted, seem in general 
 to be admissible to show that further inquiry would be hopeless, or that such 
 further inquiry has been made as such answers warrant without success. 
 Declarations made by the attesting witness previous to his departure, or letters 
 from him since his departure, tending to show that inquiry has been properly 
 made, or the impossibility of procuring the attendance of the witness appear 
 also to be admissil^le. The evidence in such a case is oifered to the judge, not 
 to the jury: Burt v. Walker, infra; Wyatt v. Bateman, 7 Oar. & P. (32 E. C. 
 L. R.) 586. 
 
 ^ Cunlijfev. Sefton, 2 East 183; and see Crosby v. Percy, 1 Taunt. 365; 
 Parker v. Hoskins, 2 Taunt. 223. In the cane of a warrant of attorney, to dis- 
 pense with the deposition of the attesting witness, the nature of the search, 
 where he had been last seen or known to reside, and when he was last heard of, 
 must be stated : Wariny v. Bowles, 4 Taunt. 132.
 
 ATTESTING WITNESS — SEARCH FOR. 515 
 
 other witness, was also abroad, *it was proved that a 
 
 • • r*ol5T 
 
 man of the name of Moreton had lived with Rivlngton, but '- ' -■ 
 
 it could not be proved that his name v.'as William, or tliat at the 
 time of trial he was not in England ; the handwriting of the other 
 witness was proved, and Lord Kenyon held that it was reasonable 
 evidence to go to a jury." The clerk of the defendant was the sub- 
 scribing witness to a bond, and when he was subpoenaed, said that he 
 would not attend, and the trial had been put off twice in consequence 
 of his absence : search had also been made at the defendant's house 
 and in the neighborhood, and upon receiving information at the 
 defendant's that the witness was gone to Margate, inquiry was there 
 made without success ; it was held, that under these circumstances, 
 evidence of his handwriting was admissible/ Where an attorney's 
 clerk was attesting witness, and his master could give no account of 
 him, although at the trial he recollected where he might probably 
 be found, proof of his handwriting was admitted.* The attesting 
 witness to the deed was the son of the defendant, and a student at 
 St. George's Hospital, where he was in the habit of attending lec- 
 tures. Inquiries were made for him there by a person who waited 
 for him several hours on seven different occasions; inquiries were 
 also made for him at several places where he had resided, and re- 
 peatedly at his father's house, where a subpoena had been shown to 
 bis mother and brother, but no information could be obtained from 
 them. The defendant had also been summoned to admit the exe- 
 cution, or declare where the witness was, but this was refused, 
 and the summons was endorsed by the judge; "No order, the 
 defendant refusing to give the information." Upon this evidence 
 the court held that the instrument was properly received r^r-ip-i 
 *on proof of his handwriting.^ After inquiry at the several 
 places of residence of the obligor and obligee, where no intel- 
 ligence could be procured as to the witness, whom nobody knew, 
 secondary evidence M'as held to be admissible.^ And it was held 
 that it was unnecessary in such a case to advertise for the witness 
 in the public newspapers,"^ inquiry having been made at the only 
 places where it was likely that the witness would be met with or 
 heard of. Where the attesting witness had left his office of busi- 
 
 ■= Wallace v. Delanccij, 7 T. R. 206. 
 
 <^ Burt V. Walker, 4 B. & Aid. (6 E. C. L. R.) 697. And see Wi/afi v. Bate- 
 man, 7 Car. & P. (32 E. C. L. R.) 586. 
 
 « Miller v. Miller, 2 Ring. N. c. (29 E. C. L. R.) 76. 
 
 ' Spooner v. Papie, 4 C. B. (56 E. C. L. R.) 328. 
 
 e Cunliffe v. Sefton, 2 East 183. ^ 2 East 183.
 
 516 PRIVATE DOCUMENTS. 
 
 ness in London twelve mouths before, but no inquiry had been 
 made at the house at Sydenham, where he had resided with his 
 family, the evidence was held to be insufficient;' but on proof 
 being given that a commission of bankruptcy had been sued out 
 against the witness a year before, to which he had not appeared. 
 Lord Ellenborough said that he would presume that he was out of 
 the kingdom, and that if he had been at Sydenham he would have 
 surrendered to save himself from a capital felony.'' Where inquiry 
 had been made after the witness at the Admiralty, and it appeared 
 from the last report that he was serving on board some ship, but it 
 did not appear what ship, it was held to be sufficient.' So it was 
 r-^r-, Yi where inquiry had been made at the last place of residence of 
 *the witness, and the answer from his father was, that he had 
 absconded to avoid his creditors, and was not to be found."* In an- 
 other case the testimony of a subscribing witness was dispensed with 
 on evidence given that the witness had expressed his intention to 
 leave the country, stating ^hat he had reason for doing so, in order 
 to avoid a criminal charge, and that his relations had not seen him 
 after his expression of such intention. "* And where an agreement of 
 letting was attested by the landlord's steward, who had been appre- 
 hended for felony and had absconded, and could not be found after 
 
 ' Wardle v. Fermor, 2 Camp. 282'. And Lord Ellenborough in that case ob- 
 served that the proof of search ought to be watched very narrowly. Where it 
 was proved that an attesting witness to an agreement had been inquired after 
 by a person who knew him, but who had not seen him for eighteen months at 
 coffee-houses and other places where he thought he might hear of him, at the 
 request of the plaintiff's attorney, and without success, it was held that proof 
 of the handwriting was admissible without proof that inquiry had been made 
 of tlifc parties to the suit who had executed the agreement : Evans v. Curtis, 2 
 C. & P. (12 E.G. L. R.) 296. 
 
 " 2 Camp. 282 -, supra. 
 
 ' Parker v. Hoskins, 2 Taunt. 223. 
 
 ™ Crash;/ v. Percy, 1 Taunt. 365. Whei'e the father of the witness proved his 
 having enlisted in a regiment, which, upon inquiry at the War-office, he was 
 told had sailed for India ; this was held sufficient to let in proof of his hand- 
 writing : Wi/att V. Bateman, 7 Car. & P. (32 E. C, L. II.) 586. So where a week 
 before the trial, the parents of an attesting witness being asked where he was, 
 stated that he was in America: Austin v. Bumsei/, 2 C. & K. (61 E. C. L. R.) 
 736. An inquiry of tlie servant where it was said the witness might be heard 
 of, was lield sufficient to let in evidence of the witness's handwriting, and it was 
 not necessary to show that he was kept out of the way by collusion : William v, 
 Worrall, 8 C. & P. (34 E. C. L. II.) 380. Semble, where grounds are shown for 
 suspecting that he is purposely kept out of the way, proof of stricter search is 
 requisite, sed queer c. 
 
 ° Kaij V. Brookman, 3 C. & P. (14 E. C. L. K.) 555.
 
 ATTESTING WITNESS — EXCUSE FOR ABSENCE. 517 
 
 search at his house, and at another house which he was in the habit 
 of frequenting, evidence of his handwriting was admitted." A fort- 
 night before the trial inquiry was made in vain from the clerk and 
 agent of the attesting witness, and five or six days before the trial, 
 inquiry was made from his wife and servant at his house, who could 
 give no information ; a bailiff from whom he had escaped, stated 
 that he had searched for him without effect : and this was held to be 
 sufficient.^ If an attesting witness had set out to leave the kingdom, 
 his absence is sufficiently accounted for, although in fact the vessel 
 may have been unexpectedly *beaten back into an English 
 port by contrary winds, at the time of trial. "^ L -I 
 
 It seems that the temporary illness of the attesting witness to an 
 instrument would not be a sufficient ground for admitting secondary 
 evidence.' 
 
 Where the plaintiff, in order to prove his possession of a house, 
 proposed to prove receipts for taxes given by the tax-gatherer, who 
 had attended under a subpoena to give evidence, but had been seized 
 with an apoplectic fit, and taken home dangerously ill before the trial 
 came on, and it was proved that he was in extremis, the secondary 
 evidence was rejected.^ 
 
 The party may also prove that the name of a person as attesting 
 witness was introduced as such without the knowledge or assent of 
 the parties, for in that case he is not an attesting witness;' or that 
 the name was merely fictitious." But it is no excuse to show that 
 the witness had denied his attestation without calling him.'' 
 
 Where there is more than one attesting witness, and the absence 
 
 " Earl of Falmouth v. Roberts, 9 M. & W. 469. 
 
 P Morgan v. Morgan, 9 Bing. (23 E. C. L. R.) 359. 
 
 1 Ward V. Wells, 1 Taunt. 461. And see Varicas v. French, 2 Car. & K. (61 
 E. C. L. R.) lOOS. 
 
 ^ A trial at the Assizes may be put off on an affidavit stating the illness of 
 such a witness. 
 
 * By Lord Ellenborough, Harrison v. Blades, 3 Camp. C. 457. Mansfield, C. 
 J., in Jones v. Brewer, 4 Taunt. 46, says, '' perhaps in some instances of sick- 
 ness" the handwriting of a subscribing witness may be proved. See Doe v. 
 Evans, 3 C. & P. (14 E. C. L. R.) 221. 
 
 * 4 Taunt. 220 ; M'Craw v. Gentry, 3 Camp. 332 ; Cussons v. Skinner, 11 M. & 
 W. 161 ; ante, p. 503, note (r). 
 
 " Fasset v. Brown, Peake's C. 23. 
 
 == Jones V. Brewer, 4 Taunt. 46 ; see Talbot v. Hodson, 7 Taunt. '(2 E. C. L. R.) 
 25] ; Fitzgerald v. Elsee, 2 Camp. 635 ; Lemon v. Dean, 2 Camp. 636, n.; Grellier 
 V. Neale, Peake's C. 146 ; Le?/ v. Ballard, 3 Esp. C. 173 ; Boxer v. Rabeth, 
 Gow. 175 : contra, Phipps v. Parker, 1 Camp. 412.
 
 518 PRIVATE DOCUMENTS. 
 
 of all but one is accounted for, the case seems to be the same as if 
 tbe latter had been the only attesting witness, and he must be called 
 to prove the execution, and no other evidence can supply the place of 
 his testimony/ 
 
 *Where there have been sufficient attesting witnesses, 
 "- -^ whose absence is satisfactorily accounted for, the proper 
 proof is by giving evidence of the handwriting of the attesting wit- 
 nesses; and it has been usual in such cases to give evidence also of 
 the handwriting of the obligor.^ This, however, is not necessary.* ^ 
 
 y Admitted in Cunliffe v. Sefton, 2 East 183. 
 "■ Adam v. Kerr, 1 B. & P. 360 ; 2 East 183, supra ; 1 Str. 34. 
 » Kay V. Brookman, 3 C. & P. (14 E. C. L. R.) .555 ; Nelson v. Whitfall, 1 B. 
 & Aid. 19 ; Page v. Mann, M. & M. (22 E. C. L. R.) 79. 
 
 ' To warrant proof of the handwriting of subscribing^ witnesses, or either of 
 them, as a substitute for their production, it must be proved that they are all 
 dead or beyond the jurisdiction of the Court: Jackson v. Gager, 5 Cow. 383 ; 
 Jackson v. Cady, 9 Id. 140 ; Lush v. Druse, 4 Wend. 313 ; Jackson v. Chamber- 
 lain, 8 Wend. 620; Jackson v. Waldron, 13 Wend. 178; Kelly v. Dunlap,Z 
 Penna. Rep. 136; Clark v. Boyd, 2 Ohio 59; Jones v. Cooprigder, 1 Blackf. 
 47 ; Zerhy v. Wilson, 3 Ohio 46 ; Stump v. Hughes, 5 Ilayw. 93 ; Lynch v. 
 Postlethwaite, 1 Mart. 209 ; Irving v. h'ving, 2 Hayw. 27 ; Johnson v. Knight, 1 
 Murph. 293. Proof that one of two subscribing witnesses to a deed, removed 
 from the State thirty years before the trial, and that the other has not been 
 heard from for thirty-seven years, is accounting sufficiently for the absence of 
 such witnesses, and on proof of the handwriting of one of the witnesses and of 
 the grantor the deed was read in evidence : Jackson v. Chamberlain, 8 Wend. 
 620. When witnesses to ancient writings are dead, and such a period has 
 elapsed since the execution that no person can be presumed to be living, who 
 can testify to the handwriting of the parties or witnesses, evidence by a person 
 verifying the signatures of the parties and witnesses is admissible, although 
 his knowledge of such genuineness is derived solely from an inspection of other 
 ancient writings, having the same signatures, which have been treated and pre- 
 served as muniments of title to estates : Jackson v. Brooks, 8 Wend. 426. When 
 the deposition of a subscribing witness proved the execution of a bond by a 
 man named Graham, but did not identify the present defendant, who was of the 
 «ame name as the obligor, the court permitted his handwriting to be proved to 
 identify him : Mushron v. Graham, 1 Hayw. 361. G. 
 
 Where the testimony of neither of the subscribing Avitnesses to a deed can be 
 obtained, proof of the handwriting of the grantor is admissible, without first 
 proving the handwriting of the witnesses : Woodman v. Segar, 25 Me. 90. Where 
 tlic subscribing witness to a deed was an illiterate person and signed by his 
 mark, and both he and the grantor were dead, it was held that as the mark 
 could not be identified, the deed could be read on proof of the handwriting of 
 the grantor: Carrier v. HamjAon, 11 Ired. 307; Morgan v. Corfeniiis,4 McLean 
 'W). Proof of the handwriting of tlio grantor to a deed furnishes more satisfac- 
 tory evidence of its execution than would proof of the handwriting of the sub-
 
 ABSENCE OF ATTESTING WITNESS. 519 
 
 The signature of an attesting witness, when proved, is evidence of 
 •every thing upon the face of the instrument, for it is to be presumed 
 that the witness would not have subscribed his name in attestation of 
 that which did not take phice ; and where there are several attesting 
 witnesses, all of whom are accounted for, proof of the handwriting of 
 any one is sufficient without proving that of the rest.'' It has been 
 held indeed in some instances, that where the testimony of the attest- 
 ing witnesses cannot be had, owing to their death, absence, interest, 
 
 M B. & P. 3G0, supra ; Gougli v. Cecil, 1 Sel. N. P. 563 ; Cunliffe v. Sefton, 
 2 East 183 ; Prince v. Blackhmm, Ibid. 250. In Hill v. Unett, 3 Madd. 370, it 
 was said that if the witness be alive, proof must be jjiven of the handwriting of 
 the oblif^or. And that in such case, a parol acknowledgment would not l)e suf- 
 ficient to dispense with evidence of the handwriting. See note (f). 
 
 scribing witness: Neivson v. Luster, 13 111. 175; see Gelott v. Goodsjjeed, 8 Cush. 
 411. In the absence of the subscribing witness from the jurisdiction, the exe- 
 cution of a promissory note by the maker's mark may be shown by other 
 evidence : Ballenger v. Davis, 29 Iowa 512. If a witness derives his knowledge 
 of the handwriting of a person from seeing him write or from seeing his signa- 
 ture on papers recognized by him as genuine, or from an acquaintance with his 
 signatures, which have been adopted into ordinary business transactions, he 
 may give his opinion : Burnham v. Ai/er, 36 N. H. 182 ; Southern Express Co. 
 V. Thornton, 41 Minn. 216; Rogers v. Bitter, 12 Wall. 317. As to comparison 
 of handwriting, see Martin v. Maguire, 7 Gray 177; Bishop v. State, 30 Ala. 
 34 ; Chandler v. Le Barron, 45 INIe. 534 ; Hoyt v. Stuart, 3 Bosw. 447 ; Williams 
 V. Drexel, 14 Md. 566 ; Jumperts v. People, 21 111. 375 ; Power v. Frirk, 2 Grant 
 306; Clark V. Wyatt, 15 Ind. 271; Travis v. Brown, 1 Wvight 9; Dubois v. 
 Baker, 30 Barb. 556 ; Calkins v. State, 14 Ohio (N. S.), 222; Dubois v. Baker, 
 30 N. Y. 355 ; Northern Bank v. Buford, 1 Duvall 335 ; Comm. v. Williams, 
 105 Mass. 62 ; Putnam v. Wadley, 40 111. 346 ; Haycock v. Greap, 7 P. F. Smith 
 438; Miller V. Johnson, 27 Md. 6; Harley v. Gaudy, 28 Tex. 211; Kernin v. 
 Hill, 37 111. 209; Vinton v. Peck, 14 Mich. 287 ; Shanks v. Putsch, 28 Md. 19; 
 Taylor Will case, 10 Abb. Pr. N. S. 301. Upon a question of handwriting, other 
 papers, not pertinent to the cause, are not admissible for the purpose of com- 
 parison : Randolph v. Loughlin, 48 N. Y. 456 ; Medway v. United States, 6 Ct. 
 of CI. 421. As to what papers may be used as standards of comparison, see 
 Bragg v. Cohcell, 19 Ohio St. 407 ; Clark v. Rhodes, 2 Heisk. 206 ; Clayton v. 
 Siebert, 3 Brewst. 176; State v. Ward, 39 Vt. 225. As to the testimony of 
 experts in handwriting, see State v. Shinborn, 46 N. II. 497 ; State v. Ward, 39 
 Vt. 225; Vinton v. Peck, 14 Miph. 287 ; Marcy v. Barnes, 82 Mass. 161 ; Tyler 
 v. Todd, 36 Conn. 218 ; Taylor Will case, 10 Abb. Pr. N. S. 301, As to what is 
 proper evidence of handwriting, see Magie v. Osborn, 1 Rob. 689 ; Mapes v. 
 Zeal's Heirs, 27 Tex. 345 ; Fash v. Blake, 38 III. 363 ; Bruce v. Crews, 39 Ga. 
 544 ; U. S. V. Champagne cases, 1 Benedict 241 ; Brown v. Lincoln, 47 N. II. 
 468. A witness cannot be compelled to answer whether a signature shown to 
 him is his, unless he is permitted to examine the paper to which it is appended : 
 Ins. Co. V. Throop, 22 Mich. 146 ; but see Kirksey v. Kirksey, 41 Ala. 626.
 
 619 PRIVATE DOCUMENTS. 
 
 or any other disqualification accruing subsequently to the attestation, 
 the signature of the party, as well as the witness,*' must be proved ; 
 and, in many instances, an admission by the obligor^ of the debt, or 
 P^roQ-i of the execution of the deed, *has been given in evidence. 
 It seems, however, to be now perfectly settled, for the rea- 
 son already given, that evidence of the signature of one of the attest- 
 ing witnesses alone is sufficient ;* as in the case of Ada7n v. Kerr,^ 
 where it was proved that one witness was dead, and that the other 
 was in Jamaica, and proof of the handwriting of the deceased wit- 
 ness was held to be sufficient, without proof of the handwriting of 
 the other witness, or of the obligor. Some doubt, however, has 
 existed upon the question, whether in such cases proof of the hand- 
 writing of the witness was sufficient, he being dead, without any 
 further proof of the identity of the parties, except that of similarity 
 of name and description. Lord Tenterden acted on the opinion, that 
 no further evidence was necessary.^ But in the subsequent case of 
 
 " Wallis V. Delancey, 7 T. R. 266, n. ; Coghlan v. Williamson, Doug. 93. 
 
 * Doug. 93 ; 2 East 183. Where it was proved that the attesting witness had 
 gone abroad two years ago, and it was not known what had become of him 
 since, and the defendant had been heard to say he had sixteen years to come of 
 the term granted by the lease, it was held that proof of the subscribing wit- 
 ness's handwriting was sufficient, though the party executing the deed was a 
 marksman : Doe d. Wheeldon v. Paul, 3 C. & P. (44 E. C. L. R.) 613. Where 
 the attesting witness cannot be produced, proof of his handwriting is sufficient 
 evidence of execution by the obligor, although only a marksman : Mitchell v. 
 Johnson, M. & M. (22 E. C. L. 11.) 176; and where the subscribing witness to 
 the deed of proprietors constituting a company was beyond seas, it was held 
 that proof of his handwriting was sufficient, without further proof of the 
 handwriting or identity of the parties : Kai/ v. Brookman, M. & M. (22 E. C. 
 L. R.) 286 ; and 3 C. & P. (14 E. C. L. R.)'555. 
 
 • Kai/ V. Brookman, 3 Car. & P. (14 E. C. L. R.) 555; Page v. Mann, M. & 
 M. (22 E. C. L. R.) 79 ; Adarn v. Kerr, 1 B. & P. 360 ; Prince v. Blackburn, 2 
 East 250 ; Milward v. Temple, 1 Camp. 375 ; Gough v. Cecil, 1 Selw. N. P. 563. 
 It is, however, frequently desirable to give evidence of the handwriting of the 
 obligor, for the purpose of proving his identity, some evidence of which seems 
 to be generally necessary : see Parkins v. Haivkshaw, 2 Stark. C. (3 E. C. L. R.) 
 239, supra; Nelsonv. Whittall, 1 R. & Aid. 19; Middletonv. Sandford, 4 Camp. 
 34 ; I'age v. Mann, M. & M. (22 E. C. L. R.) 79. 
 
 ' 1 B, & P. 360. But see Hill v. Unett, 3 Madd. 370, where the distinction is 
 taken between the case where a witness is dead and that where he is still living; 
 in the latter case it was held that proof of the handwriting of the obligor was 
 necessary. 
 
 i^Page v. Mann, M. & M. (22 E. C. L. R.) 79, coram Lord Tenterden, C. J, 
 JCotwithhtanding the doubt expresscul by Hayley, J., in Nelson v. Whittall, 1 B. 
 & Aid. 21, referring to the opinion of Lord Kenyon, in Wallis v. Delancey, 7
 
 ABSENCE OF ATTESTING WITNESS. 520 
 
 WJiiteloch V. Mu?.grove^ some evidence of identity was held to be 
 necessary. From *the more recent cases however it would ^^_ro^-\ 
 appear that the ruling of Lord Tenterden was right,' and L '^ J 
 that unless there be some circumstances to create ambiguity,"* no such 
 proof of identity is incumbent on the party adducing the instrument, 
 but it is incumbent on the other party to rebut the jirinid facie case. 
 
 Where one of the attesting witnesses, after diligent inquiry made, 
 could not be found, and the other had become interested since the 
 attestation, it was held, that evidence of the handwriting of the 
 latter witness was sufficient proof.' So, where the witness, since the 
 attestation, had been convicted of forgery.™ Where one of two wit- 
 nesses was dead, and the other denied his signature. Lord Holt ad- 
 mitted evidence of the handwriting of the former." By the 20 Geo. 
 III., c. 58, s. 38, as to deeds executed in the East Indies, and 
 attested by witnesses resident there, it is sufficient to prove by one 
 witness the handwriting of the parties and of the witnesses, and that 
 the latter are resident in India. These provisions seem to have been 
 superseded by the rules of evidence already stated. 
 
 If the deed or other instrument, when produced, appear" to be 
 thirty years old, no further proof is required ; since after that time 
 it is to be presumed that the attesting witnesses are all dead.^' ' 
 
 T. R. 266, n., that the handwriting of the obligor of a bond in such case ought 
 to be proved. See also Doe d. Wheeldon v. Paul, 3 C. & P. (14 E. C. L. R.) 
 613 ; Kmj V. Brookman, M. & M. (22 E. C. L. R.) 286 ; 3 C. & P. (14 E. C. L. 
 R.) 555 ; Mitchell v. Johnson, M. & M. (22 E. C. L. R.) 176. 
 
 *" 1 Cr. & M. 511. That was the case of an action on a promissory note made 
 by a marksman. 
 
 ' Sewell V. Evans, Roden v. Ryde, 4 Q. B. (45 E. C. L. R.) 626 ; Greenshields 
 V. Crawford, 9 M. & W. 314 ; Humber v. Roberts, 7 C. B. (62 E. C. L. R.) 861 ; 
 Simpson v. Dismore, 9 M. & W. 47. 
 
 ^ Jones V. Jones, 9 M, &W. 75 ; Barker v. Stead, 3 C. B. (54 E. C. L. R.) 946. 
 In these cases the ambiguity arose from there being other persons of the same 
 name. 
 
 ' Cunliffe v. Sefton, 2 East 183. In this case there was also proof of the ac- 
 knowledgment of the debt. See also 1 Str. 34 ; 1 P. Wms. 289 ; Swire v. Bell, 
 5 T. R. 372. 
 
 ■" Jones V. Mason, Str. 833. But he would not be competent. 
 
 " Blurton v. Toon, Skin. 639. 
 
 » Anderson v. Watson, 6 Bing. N. C. (37 E. C. L. R.) 300 ; Potez v. Glossop, 2 
 Ex. 191. 
 
 P B. N. P. 255 ; Bac. Abr., Ev. F. ; Doe dem. Spilsbury v. Burdett, 4 Ad. & E. 
 (31 E. C. L. R.) 1 ; Doe dem. Oldham v. Wolley, 8 B. & C. (15 E. C. L. R.) 22. 
 
 ^ A deed of conveyance thirty years old unaccompanied by any suspicious cir- 
 cumstances, requires no proof, but is good evidence of itself. This rule of law is
 
 522 PRIVATE DOCUMENTS. 
 
 r*rw90i -^"t^ '^ seems to be clearly established, *that this is not a 
 mere jjrimd facie presumption that the witnesses are dead, 
 
 So in the case of a will thirty years old, reckoning from the time of execution. 
 See Will ; Miller v. Miller, 2 Bing. N. C. (29 E. C. L. R.) 76. The rule applies 
 generally to deeds concerning lands, bonds, and other specialties : Governor of 
 Chelsea Waterworks v. Cowper, 1 Esp. C. 275 ; entries in steward's books : 
 Wynne v. TijrwUtt, 4 B. & Aid. (6 E. C. L. R.) 376 ; letters and other written 
 documents. Ibid. ; Doe\. Beynon, 12 Ad. & E. (40 E. C. L. R.) 431. For the rule 
 is founded on the antiquity of the instrument, and the great difficulty, nay the 
 impossibility, of proving the handwriting after such a lapse of time. See R. v. 
 Ryton, 5 T. R. 259 ; Fry v. Wood, Sel. N. P. 564 ; Dean and Chapter of Ely v. 
 Stewart, 2 Atk. 44; Manhy v. Curtis, 1 Price 132; Bertie v. Beaumont, 2 Price 
 308. Where a letter, dated in 1748, was found in the possession of the repre- 
 sentative of the defendant's attorney, it was held to be prima facie evidence to 
 prove that the letter had been written to him, although it was without address, 
 the envelope having been lost: Fenwich v. Reed, 6 Mad. 8. It was held, in the 
 same case, that a letter found among his papers, and appearing from its contents 
 to have been written by the attorney's London agent, was admissible in evidence ; 
 Ibid. In Beer v. Ward, on the trial of an issue as to the legitimacy of a parti- 
 cular person, a very old letter, purporting to bear the signature of the head of 
 the family, and brought from among the title-deeds kept at the family-seat, was 
 admitted without proof of the handwriting, by Dallas, C. J., Mich. 1821, and by 
 Lord Tenterden, 1823. In favor of an ancient certificate, recognized by the cer- 
 tifying parish, it will be presumed that the churchwarden who executed the cer- 
 tificate was duly sworn : R. v. Whitchurch, Inhah., 7 B. & C. (14 E. C. L. R.) 
 573 ; Marsh v. Colnett, 2 Esp. C. 665 ; and see R. v. Farringdon, 2 T. R. 466. 
 In the case of The King v. Netherthong, 2 M. & S. 337, it was held, that a certifi- 
 cate by the appellant parish (sixty years old) might be read in evidence when 
 produced by a rated inhabitant of the respondent parish, without any account 
 given of its custody ; and the court intimated that he might, if necessary, be 
 examined by the appellants to the custody. A bond, thirty yeai's old, found 
 amongst the papers of a corporation, who were the obligees, is admissible with- 
 out proof of the handwriting of the obligor or attesting witness : The Governor 
 and Company of the Chelsea Waterworks v. Coioper, 1 Esp. C. 275 : Rees v. 
 Mansell, Selw. N. P. 564. On a question whether certain lands, which had 
 been approved from a waste, were subject to a right of common, several coun- 
 terparts of old leases kept among the muniments of the lord of the manor, by 
 which the land appeared to have been demised by the lord free from any such 
 charge, were allowed to be evidence for the plaiutiS" claiming under the lord of 
 the manor, though possession under the leases was not shown : Clarksou v. Wood- 
 house, 5 T. R. 412, n. 
 
 80 well established that if the subscribing witnesses were known to be alive and 
 within the jurisdiction of the court, it would be unnecessary to call or produce 
 them: Henthom v. Doe, 1 Blackf. 162; Hanes v. Peck''s Lessee, Mart. & Yerg. 
 228; see also Roberts v. Stanton, 2 Munf. 129; Neivlett v. Cock, 7 Wend. 371. 
 But it has been held in Massachusetts that if the subscribing witness to a deed 
 be living, he should be called, although the deed is more than thirty years old ; 
 Tolvian v. Emerson, 4 Pick. 160. G. 
 
 In the case of Jackson v. Blanshaiv, 3 Johns. 292, Kent, C. J., says, " It is
 
 PROOF OF — IF THIRTY YEARS OLD. 523 
 
 which is liable to be rebutted *by proof th.at the attesting r^coo-i 
 witnesses are still alive, so as to render it necessary to call 
 them ; but that it is a peremptory rule of law, founded upon general 
 convenience, that such proof, after the lapse of thirty years, shall be 
 unnecessary.'' Where, however, the deed labors under any suspicion, 
 
 1 Doe V. WoUeij, 8 B. & C. (15 E. C. L. R.) 22 ■ Lord Tcnterden, C. J., in that 
 case observed, that the allowing; the presumption of the death of the attestinj^ 
 witness to be rebutted, would be but a trap for a nonsuit. And see B. N. P. 
 255; Marsh v. Colnett, 2 Esp. C. 665. In Rees v. Mansell, Selw. N. P. 564, 
 Baron Perrott is stated to have ruled to the contrary, on the ground that the 
 lapse of time afforded mere presumptive evidence of the death of witnesses. 
 But another case was cited to Mr. B. Perrott upon that occasion, in which Mr. 
 J. Yates, for the sake of the practice, would not allow the witness to prove an 
 old deed, althouf^h he attended for the purpose. And see Doe v. Burdeit, 4 Ad. 
 & E. (31 E. C. L. R.) 1. 
 
 accompanying possession alone which establishes the presumption of authen- 
 ticity in an ancient deed : see also 9 Johns. 169, Doe v. Phelps ; 10 Johns. 475, 
 Doe V. Campbell. This is also the doctrine of the courts of Maryland : Huddy 
 V. Harryman, 3 Har. & McHen. 581 ; Joce v. Harris, 1 Ibid. 196 ; Carroll v. Nor- 
 wood, 1 Har. & J. 174; in each of which cases, possession under the deed was 
 held to be essential to its admissibility. So in South Carolina, a deed thirty 
 years old cannot be given in evidence without the regular pi-oof unless it first 
 be shown that possession has accompanied it: Thompson v. Bullock, 1 Bay 364 ; 
 Middleton v. Mass, 2 N. & McC. 55. The same would seem to be the law of 
 Virginia : Roberts v. Stanton, 2 Munf. 129 ; Lee v. Tajyscolt, 2 Wash. 276. Of 
 Pennsylvania : Shaller et al. v. Brand, 6 Binn. 435. And also of Connecticut : 
 Mallory et al. v. Aspinwall et al., 2 Day 280 ; see Thomases Lessee v. Horlocker, 
 
 I Dall. 14; Tolman v. Emerson, 4 Pick. 160. M. 
 
 A deed thirty years old, where possession has gone with the deed, proves it- 
 self: Green v. Chelsea, 24 Pick. 71 ; Parris v. Eubanks, 1 Speers 183 ; McClesky 
 V. Leadbeater, 1 Kelly 551 ; Doe v. Eslava, 11 Ala. 1028 ; Willson v. Belts, 4 
 Denio 201 ; Winston v. Gwathmey, 8 B. Mon. 19 ; Troup v. Hurlbut, 10 Barb. 
 S. Ct. 354; Hedger v. Ward, 15 B. Mon. 106 ; Reaume v. Chambers, 22 Mo. 36; 
 Clark V. Wood, 34 N. H. 447 ; White v. Hutchincjs, 40 Ala. 253. Proof that a 
 deed of land is more than thirty years old, without other circumstances, is no 
 evidence of its authenticity, especially where no possession has been taken under 
 it, and the land has bt>en held adversely, although the deed is shown to have 
 been in the custody in which it would have been likely to be if genuine : Will- 
 son v. Belts, 4 Denio 201 ; Horner v. Cilley, 14 N. H. 85 ; Ridgely v. Johnson, 
 
 II Barb. S. Ct. 527. If an instrument offered in evidence as an ancient deed, be 
 proved to be thirty years old, it is not necessary to show that it came from the 
 proper custody, and that possession has been held under it : Brown v. Wood, 6 
 Rich. Eq. (S. C.) 155. Continual possession of an ancient deed, when execution is 
 not proved, is not the sole sufficient test of its authenticity : Caruthers v. El- 
 dridge, 12 Gratt. 670. A treasurer's tax receipts prove themselves after the 
 lapse of thirty years when produced from the proper custody : McReynolds v. 
 Longerberger, 7 P. F. Smith 13.
 
 523 PRIVATE DOCUMENTS. 
 
 arising from any rasure or interlineation, it is a matter of prudence 
 and discretion to prove it in the usual way by means of an attesting 
 witness, if any be still living, or by proof of the handwriting of an 
 attesting witness, where they are all dead,'' in order to rebut the un- 
 favorable presumption arising from an inspection of the deed ; and 
 this ought more especially to be done if the deed import fraud ; as, 
 where a man conveys a reversion to one, and afterwards conveys it 
 to another, and the second purchaser proves his title ; because in 
 such case the presumption arising from the antiquity of the deed is 
 destroyed by an opposite presumption ; for no man shall be supposed 
 guilty of so manifest a fraud. ^ 
 
 The same rule applies to other old writings, such as receipts' and 
 r^^OAi letters." Where an indenture of apprenticeship had been 
 executed thirty years ago, and the parish in which the pau- 
 per had resided had treated him as a parishioner for twelve years, it 
 was presumed that the indenture had been lost, and that it had been 
 properly stamped, although it was proved by the deputy registrar 
 and comptroller of the apprentice duties, that it did not appear to 
 have been stamped from 1773 to 1805. '^ 
 
 It has already been observed, that in order to give authenticity to 
 an ancient instrument which does not admit of proof by the ordinary 
 tests, it is essential to show that it has been brought from the natural 
 and legitimate repository '/ as in the case of terriers, ancient grants, 
 an inspeximus, an endowment by a bishop. Where an old deed is 
 given in evidence, without proof of its execution, some account 
 ought to be given of the place where it has been kept ;'' or evidence 
 should be given so as to afford a presumption that the party has been 
 
 ' Chettle V. Poutid, B. N. P. 255 ; Bac. Abr., Ev. F. But see Trimmlestown v. 
 Kemmis, 9 CI. & F. 763. 
 
 " B. N. P. 255 ; Bac. Abr., Ev. F. 
 
 ' Bertie v. Beaumont, 2 Pri. 308 ; Sullen v. Michel, 2 Pri. 399 ; 4 Dow. 297 : 
 Wynne v. Tyrwhitt, 4 B. & Ad. (24 E. C. L. R.) 376 ; Dean of Ely v. Stewart, 
 Atk. 44 ; Manly v. Curtis, 1 Pri. 225. 
 
 " In Beer v. Ward, cor. Dallas, C. J., Sitt. after Mich. 1821 ; and cor. Lord 
 Tenterdcn, C. J., K. R. Sitt. after Trin. 1823, on an issue as to the legitimacy 
 of A. B., an old letter, purporting to be signed by the head of the family, and 
 brought from among the title-deeds at the family seat, was admitted to be 
 read. 
 
 ' It. V. Lony Buclchy, 7 East, 45. The binding being in the year 1774 or 
 1775. 
 
 y Supra, p. 291. 
 
 '■ B. N. P. 255, ante, p. 291.
 
 ANCIENT DEED — CUSTODY. 524 
 
 in possession under the deetl/ But it is sufficient that a document 
 be produced from a place where it was likely to be found, although 
 it be not the most proper place of custody.'' As to such writings, 
 some evidence should be given to afford a reasonable presumption* 
 that they were honestly and fairly obtained, and preserved for use, 
 *and are free from suspicion of dishonesty. In ordinary [-*f;9f;-| 
 cases, however, where the instrument is produced by one 
 who has an interest in it, it is not necessary to show where the in- 
 strument has been kept ; it is sufficient for overseers to produce a 
 parish certificate thirty years old, without showing whence it came.** 
 So it was held to be sufficient for a rated inhabitant of a respondent 
 
 » Bac. Abr., Ev. F. ; B. N. P. 254. In Jewison v. Di/son, 9 M. & W. 540, an 
 order by the Chancellor and Council of the Duchy of Lancaster, made in 1670 
 to the coroners of the honors of Pontefract (within the duchy) as to the returns 
 of inquests, was held admissible without evidence, that it had ever been acted on. 
 And see Doe v. Puhnan, 3 Q. B. (43 E. C. L. R.) 622. 
 
 " Cronghton v. Blake, 12 M. & W. 205 ; Bp. of Meath v. Winchester, 3 Bing. 
 N. C. (32 E. C. L. R.) 183 ; Slater v. Hodgson, *9 Q. B. (58 E. C. L. R.) 727. 
 
 <= Vin. Abr., tit. Evidence, A. 6 ; 7 East 291 ; 4 B. & Aid. (6 E. C. L. R.) 376 ; 
 B. N. P. 255; Forbes v. Wale, 1 Bl. 532. Letters addressed to the party's 
 mother, with whom she lived, and at whose death the keys and papers were de- 
 livered to her, were held to be properly in her custody : Doe v, Beynun, 12 Ad. 
 & E. (40 E. C. L. R.) 431. And where in ejectment by a mortgagee a prior 
 deed of settlement was produced from the papers of the mortgagor, lately de- 
 ceased, who was tenant for life under it, this was considered the proper custody : 
 Doe V. Samples, 8 Ad. & E. (35 E. C. L. R.) 151. 
 
 ^ R. V. Ryton, 5 T. R. 259 ; see also Dean and Chapter of Ely v. Stewart, 2 
 Atk. 44 ; Fry v. Wood, 2 Sel. N. P. 564. A lessee occupied lands under a tenant 
 for lives, and paid the rent reserved by the lease to one Williams. The day 
 after the last life dropped, he obtained the lease from certain persons whose 
 connection with it did not appear, and delivered it up to Williams, taking a 
 fresh demise of the lands from him. This lease being produced by the lessor 
 was held to come from proper custody : Rees v. Walters, 3 M. & W. 527. A 
 will fifty years old was produced by the plaintiff's attorney, who received it 
 from B., and the witness stated that when the same cause was before an arbi- 
 trator it was produced by B., and the defendant's attorney in his presence there- 
 upon consented to its being admitted in evidence. Patteson, J., held this to 
 be slight but admissible evidence of the proper custody : Doe dem. Boivdler v. 
 Owen, 5 C. P. (34 E. C. L. R.) 751. So it is sufficient, if a lease creating a term 
 to attend comes from the solicitor of the fiimily of the party : Doe v. Phillips, 
 8 Q. B. (55 E. C. L. R.) 158 ; or if a lease comes from the land agent of the 
 lessors, although the agent be not in court : Doe v. Keeling, 11 Q. B. (63 E. C. 
 L. R.) 884. These cases seem to overrule in this respect what was said in Evans 
 v. Rees, 10 Ad. & E. (37 E. C. L. R.) 151 ; that it is not enough for the party, 
 his counsel or steward to produce the document in court, but that some evidence 
 of the custody should also be given.
 
 528 PRIVATE DOCUMENTS. 
 
 chartulary of that abbey, and preserved amongst the muniments of 
 the Marquis of Bath, the owner of some estates which formerly 
 belonged to the abbey, although not of the farm in question, was suffi- 
 ciently connected with the abbey to be admissible in evidence as a 
 genuine document which belonged to the abbey/ It was also held 
 that two documents contained in the book were evidence ; the one 
 being in the form of an appropriation, dated 1269, made by the 
 Bishop of Salisbury to the abbey of Glastonbury, of the profits of 
 a rectory, reserving to the bishop a power of ordaining a vicarage in 
 the same church, of a specified yearly value, and the other contain- 
 ing a list of different articles of endowment of the same vicarage.' 
 
 ^ *It was likewise held, that the accounts of rents of the 
 
 r*5'^91 
 
 L "^ -• abbey, also found among the same muniments, and contain- 
 ing the allowances and acquittances of the abbey, were admissible. 
 Copies from an ancient schedule, produced from the muniments of a 
 corporation, and delivered to the toll collectors, by which they col- 
 lected the tolls, are admissible for the corporation, although it would 
 have been otherwise if not shown to have been delivered to the col- 
 lectors by the corporation, however accurately corresponding." 
 
 The first skin of an indenture relating to lands in question in the 
 suit, which appeared to have been severed from the rest by a sharp 
 instrument, which had cut away the seals and names of the parties 
 who appeared by the endorsement to have executed it, was formerly 
 in the custody of the plaintiff's steward until litigation commenced 
 between him and the plaintiff, when it was handed over to the suc- 
 ceeding steward, and was produced by him on the trial of an issue in 
 
 ^ It was observed by Gibbs, C. B., 2 Price 410, that such a book as this pur- 
 ports 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 books could go to one only 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 its present possessor. 
 
 ' Wood, B., dissented from the other judges of tlic court upon this point: he 
 admitted that the book had been sufficiently connected with the abbey to make 
 it evidence as a cofiy of the endowment, supposing such evidence to be relevant; 
 but he was of opinion that it was not relevant evidence upon that point, since 
 the endowment was not disputed ; and that for any other purpose these entries 
 were res inter alios, and mere memoranda of an executory project. See his 
 observations at length, 2 Price 425. 
 
 " Jhelt V. Jiealcs, M. & M. (22 E. C. L. 11.) 416.
 
 PROOF WHERE NO ATTESTING WITNESS. 529 
 
 which the defendant derived title from the former steward. This was 
 held to be the proper custody, and the document was admitted in evi- 
 dence against the plaintiff." 
 
 Where no name of any attesting witness is subscribed, or where 
 there are names subscribed which are proved to be fictitious,^ or of 
 real persons who either did not actually witness the execution of 
 the deed or other instrument,^ or who were in point of law in- 
 competent to *attest it,"* the execution may be proved by the 
 testimony of any witness who was present when the deed was •- -' 
 executed ;'' or it will be suflScient to prove the handwriting of the 
 obligor, from which the sealing and delivery may be presumed,* or his 
 acknowledgment of the instrument. 
 
 Where the writing has been lost** or destroyed, or so situated that 
 its production cannot be enforced,® the *fact must be proved, r:): co-it 
 If positive proof of the destruction cannot be had, it must 
 
 ^ Lord TrimJestoicn v. Kemmis, 9 CI. & Fin. 775 ; and see Price v. Woodhouse, 
 3 Ex. 616. 
 
 y Fasset v. Brown, Peake's C. 23. 
 
 ' GrelUer v. Neale, Peake's C. 146 ; WCraiv v. Gentry, 3 Camp. 232 ; Cussons 
 V. Skinner, ante, p. 503, note [t). In PJiipps v. Parker, 1 Camp. 412, where the 
 party whose name appeared as the attesting witness negatived the attestation 
 by him, Lord Ellenborough held, that the deed could not be proved by evidence 
 of the handwriting of the supposed obligor, or of an acknowledgment by him ; 
 but this case is overruled : Fitzgerald v. Elsee, 2 Camp. 365, cor. Lawrence, J. ; 
 Lemon v. Dean, Ibid. 636, cor. Le Blanc, J. And where the attesting witness 
 to a bond declared that he did not see it executed by the obligor ; it was held 
 that it Avas the same as if there had appeared to be no attesting witness, and 
 that the execution was sufficiently proved by showing the handwriting of the 
 obligor : Boxer v. Rabeth, Gow's C. 175 ; and see ante, pp. 572, 573. 
 
 » Com. Dig., Ev. B. 3. 
 
 ^ Ibid. ; Fitzgerald v. Elsee, 2 Camp. 635 ; Lemon v. Dean, 2 Camp. 636. 
 
 •= Com. Dig., Evidence, B. 3 ; 1 Lev. 25 ; Fassett v. Brown, Peake's C. 33 ; 2 
 T. R. 41 ; GrelUer v. Male, Peake's C. 198 ; Talbot v. Hodson, 7 Taunt. (2 E. 
 C. L. R.) 251 ; the subscribing witness having denied that he saw the execution, 
 a co-obligor having been released, swore that there was a seal on the bond when 
 the defendant wrote his name opposite, but that the defendant did not seal it, 
 nor put his hand to the seal, nor deliver it in the witness's presence. The jury, 
 on the evidence being left to them, found for the plaintiff; and the court after- 
 wards held that this had been properly left to the jury. If the obligor be a 
 marksman, it seems his execution may be proved by a person who has seen him 
 so execute instruments, and can speak to the mark : George v. Surrey, M. & M. 
 (22 E. C. L. R.) 516. For proof of handwriting, see tit. Handwriting, Vol. II. 
 
 ^ A bill accepted abroad and negotiated here by the defendant on the plain- 
 tiffs account, may be treated as a lost bill : Hunt v. Alewyn, 3 C. & P. (14 E. C. 
 L. R.) 284. 
 
 " Secondary evidence was held to be inadmissible where a letter was filed in 
 32
 
 531 m IV ATE DOCUMENTS. 
 
 be shown that a bond fide and diligent search has been made for it 
 in vain where it was likely to be found." 
 
 the Court of Chancery, it being in the power of either party to produce it on 
 application to the court: Williams v. Munnings, Ry. & M. (21 E. C. L. R.) 18. 
 And if it be in the hands of one who holds it as security for money owing to 
 hiin, and refuses on his subj^cena to produce it, such a condition of the docu- 
 ment is equivalent for this purpose to loss : Doe d. Gilbert v. Ross, 7 M. & "NV. 
 102. 
 
 •■ Goodier v. Lake, 1 Atk. 446 ; Lord Peterborough v. Mordaunt, 1 Mod. 94. 
 Where thirty-six years had elapsed since indentures were executed, which had 
 been long smcefuncti officio, and it was shown that every person had been ap- 
 plied to and called, in whose possession they might reasonably be expected to be 
 found, secondary evidence was let in : R. v. East Farleigh, 6 D. & R. (16 E. C. 
 L. R.) 146 As to the necessity for search where there is no proper place of 
 deposit, see Doe v. Grazebrool; 4 Q. B. (45 E. C. L. R.) 406. 
 
 ^ If the non-pi'oduction of a written instrument is satisfactorily accounted for, 
 evidence of its existence and contents is admissible : U. S. v. Regburn, 6 Pet. 252 : 
 Minor V. Tillotson, 7 Ibid. 99 ; Denton v. Hill, 4 Ilayw. 73 ; Jackson v. Cullum, 
 
 2 Black. 228 ; Blackburn v. Blackburn, 8 Ilamm. 81 ; Armstrong v. Timmons, 
 
 3 Harrlng. 342 ; Murray v. Buchanan, 7 Black. 549 ; Mulliken v. Bogce, 1 Gill. 
 60; Granger v. Warrington, 3 Gilra. 299; Creed v. White, 11 Humph. 549 ; 
 Wisicall V. Knevals, 18 Ala. 65. The loss or destruction of a paper must be 
 strictly proved, before other evidence of its contents can be received ; and if a 
 writing be offered as a copy, it must be strictly proved as such before it can be 
 given in evidence : Willis v. McDole, 2 South. 501 ; Boynton v. Rees, 8 Pick. 
 329 ; Dawson v. Graves, 4 Call 127 ; U. S. v. Porter, 3 Day 283 ; Can/man v. 
 Congregation, 6 Binn. 59 ; Doe v. McCaleb, 2 How. (Miss.) 756 ; Bouldin v. Massie, 
 7 Wheat. 122; Redman v. Green, 3 Ired. Ch. 54; D. S. v. Boyd, 5 How. 29; 
 Marshall v. Hany, 9 Gill. 251 ; Poe v. Dorrah, 20 Ala. 288. Secondary evidence 
 of the contents of a written instrument is admissible when it has been destroyed 
 voluntarily through mistake or by accident: Riggs v. I'ayZoe, 9 Wheat. 483. 
 So, when it is in the hands of a third person, out of the jurisdiction of the 
 court: Ralph v. Brown, 3 W. & S. 395; Waller v. Cralle, 8 B. Monr. 11: 
 Threadgill v. White, \1 Ired. 591; Shepard \. Giddings, 22 Conn. 282. Pre- 
 sumptive evidence of loss is sufficient: Taunton Bank v. Richardson, 5 Pick. 
 436 ; Central Turnpike v. Valentine, 10 Pick. 142 ; Bouldin v. Massie, 7 Wheat. 
 122; Hathaway v. Spooner, 9 Pick. 23; Flinn v. McGonigle, 9 W. & S. 75 ; 
 Sturdecant v. Gains, 5 Ala. 435 ; Turner v. Moore, 1 Brev. 236. The loss or 
 destruction of an instrument is a fact to be decided l)y the court befoi'e its con- 
 tents can be proved, and is not afterwards to be submitted to the jury: Witter 
 V. Latham, 12 Conn. 392; Flinn v. McGonigle, 9 W. & S. 75 ; Woodworth v. 
 Barker, 1 Hill 172; Wood v. Gassett, \\ N. H. 442 ; Vaughan v. Biggers, 6 
 Ga. 188. A party to a suit may be a competent witness to prove the loss of a 
 deed or record, for the purpose of letting in secondary evidence, but not to prove 
 the contents thereof: Adams v. Leland, 7 Pick. 62; Patterson v. Winn, 5 Pet. 
 233; Dun V. Brown, 4 Cow. 483; Jackson \. Belts, 6 Id. 377; Shroioders v. 
 Harper, 1 Ilarring. 444 ; Harris v. Doe, 4 Blackf. 369 ; Woodworth v. Barker,
 
 SEARCH — IN CASE OF LOSS. 531 
 
 The degree of diligence to be used in searcLing for a deed must 
 depend on the importance of the deed and the particular circum- 
 
 1 Hill 172 ; Woods V. Gassett, II N. II. 442; Stafford v. Stafford, Saxton 525 ; 
 Mai/nor v. Lewis, 2 Ga. 205; Vedderv. Wilkins,o Denio 64; Porter v. Ferguson, 
 4 Fla. 102 ; Wade v. Wade, 12 Ills. 89 ; Wells v. Martm, 1 Ohio 380. The 
 proof necessary to establish the loss of a writing, so as to let in secondary evi- 
 dence of its contents, must depend upon the nature of the transaction to which 
 it relates, its apparent value and other circumstances. If suspicion hangs over 
 the instrument, or tliat it is designedly withheld, a rigid inquiry should be 
 made into the reasons of its non-production ; but if there is no such suspicion, 
 all that ought to be required is reasonable diligence to obtain the original, in 
 respect to which the courts extend great liberality : Juzan v. Tonhnin, 9 Ala. 
 662; Kelseij v. Ilanmer, 18 Conn. 311; Waller v. School District, 22 Id. 
 326. The rule which excludes secondary evidence in a contest with primary 
 does not mean that everything is secondary which is not of the highest 
 order, but only that which discloses the existence of other evidence from 
 the non-production of Avhich it may be supposed that if produced it 
 would work against the party offering it: Shoenbergir v. Hackman, 1 Wright 
 87. In order to admit secondary evidence it is not necessary that the 
 loss or destruction of the document should be proved beyond all possi- 
 bility of mistake : all that is required is a moral certainty : U. S. v. Sutter, 
 21 How. (U. S.) 170. That a paper was last seen in the hands of one out 
 of the State, will admit secondary evidence : Gordon v. Searing, 8 Cal. 49. To 
 admit secondary evidence the destruction of the instrument must have been 
 without the agency or consent of the party who offers it: Bagley v. McMickle, 
 9 Cal. 430; Tohin v. Shaw, 45 Me. 331 ; Joannes v. Bennett, 5 Allen 169. A 
 copy of a telegram is not the best evidence, and therefore the original must be 
 produced or its absence accounted for : Mattison v. Noyes, 25 111. 273 ; Comm. v. 
 Jeffries, 7 Allen 548. The evidence of the person who was the proper custodian 
 of the paper as to its loss must be adduced : Anderson v. Maherry, 2 Ileisk. 653. 
 A copy of a survey is not admissible until proved by some one who has com- 
 pared it with the original: McGinnis v. Saioyer, 13 P. F. Smith 259; Coxe v. 
 England, 15 Ibid. 212. As to how a copy ought to be compared with the 
 original: Krise v. Neason, 16 P. F. Smith 253. Press copies of letters are ad- 
 missible: Cameron v. Peck, 37 Conn. 555. See Marsh v. Hand, 35 Md. 123. It 
 is not necessary to produce the press copy of a lost letter, but other secondary 
 evidence may be given : Goodrich v. Weston, 102 Mass. 362. Notice to a party 
 or counsel representing the government to produce papers on file in any of the 
 departments, does not authorize the party giving the notice to use other copies 
 than those properly certified by the officer in whose charge they are : Barney v. 
 Schneider, 9 Wall. 248. Where an attested copy of a deed from the registry 
 is introduced as evidence, bearing a scroll and the word " seal" written upon it 
 in a place where the seal is usually placed, it Avill be presumed that the original 
 was properly sealed: Deininger v. McConnel, 41 111. 228. Where there are de- 
 grees in secondary evidence the best should be produced. A copy of an instru- 
 ment is to be preferred to verbal testimony of its contents : Williams v. Waters, 
 36 Ga. 454. A notary's book of protests is the best evidence of entries, and must 
 be produced or shown to be lost: Genet v. Laicyer, 61 Barb. 211. A synoptical
 
 531 PRIVATE DOCUMENTS. 
 
 stances of eacli case.^ It is not absolutely necessary that the search 
 for the original document should be made for the purpose of, and 
 shortly before the cause; where it had been made recently after the 
 death of the party in whose possession it had been, although three 
 years before the action, it was held to be sufficient to let in the 
 secondary evidence.'' 
 
 Inquiry was made after an indenture of apprenticeship at the house 
 of the deceased master ten years after his death, in which house his 
 widow and son still resided, and his goods and effects remained, and 
 the son said that he could not find it, and some parol evidence 
 was given to show that a deed of apprenticeship existed ; the court 
 held that the proof of binding was not sufficient." Where there 
 were two parts of an indenture of apprenticeship, one of which 
 r*co9-| "^vas proved to have been destroyed, and the *other had 
 been delivered to Miss Taylor, of Bomford, to whom the 
 
 8 Per Best, C. J., in Gully v. The Bishop of Exeter, 4 Bing. (13 E. C. L. R.) 
 290 ; Gathercole v. Mlall, 15 M. & W. 335 ; Doe v. Leivis, 20 L. J., C. P. 177. 
 
 " Fitz V. Rabbits, 2 M. & Rob. 60. 
 
 i B. V. St. Helens in Abingdon, B. S. C. 292, 735 ; 2 Bott. 481 ; but in this case 
 the evidence seems to have been insufficient to prove a binding, independently 
 of the objection that the proof of loss was insufficient for the purpose of admit- 
 ting secondary evidence : and the circumstances of the case rather negatived the 
 existence of a valid indenture. 
 
 exhibit of the contents of bank books is not the best evidence. The books them- 
 selves must be produced or their absence accounted for : Ritchie v. Kinney, 46 
 Mo. 298. Oral evidence of the words written on the tag of a valise is admissible 
 to identify the tag without proving its loss : Comm. v. Morrell, 99 Mass. 542. 
 The destruction of a contract by a person claiming under it, after he knows that 
 there is to be a difficulty about it, is strong presumptive evidence that its terms 
 were unfavorable to his claim : Warren v. Crew, 22 Iowa 315 ; Page v. Stephens, 
 23 Mich. 357; Lucas v. Brooks, 23 La. Ann. 117. If a party has voluntarily 
 destroyed a writing, he cannot prove its contents unless he repels the inference 
 of fraud in its destruction : Blake v. Fash, 44 111. 302. See further as to se- 
 condary evidence of writings : Krise v. Neason, 16 P. F. Smith 253 ; Chrysler v. 
 Renvis, 43 N. Y. 209 ; Eady v. Shivey, 40 Ga. 684 ; Martin v. Williams, 42 Miss. 
 210 ; Huls V. Kimball, 52 111. 391 ; Wells v. Jackson Manuf. Co., 48 N. II. 491 ; 
 Coxe V. England, 15 P. F. Smith 212 ; Taylor v. Peck, 21 Gratt. 11 ; Yale v. 
 Oliver, 21 La. Ann. 454; McGuire v. Bank, 42 Ala. 589 ; Christy v. Kavanagh, 
 45 Mo. 375 ; Ins. Co. v. Weide, 9 Wall. 677 ; Sturgis v. Hart, 45 111. 103 ; Clark 
 v. Hornbeck, 2 Green 430 ; Roe v. Doe, 32 Ga. 39 ; King v. Randlett, 33 Cal. 318 ; 
 White V. liurney, 27 Tex. 50 ; Wallace v. Wilcox, Ibid. GO ; Patterson v. Keystone 
 Co., 30 Cal. 300; O' Meara v. North American. Co., 2 Nev. 112; Robertson v. 
 Moorer, 25 Tex. 428; Bally v. Trammell, 27 Ibid. 317; Wells v. Miller, 37 111. 
 276; Winona v. Ifv^', 11 Minn. 119; Delong \. Delong, 24 Ark. 7; Thayer v. 
 liarnnj, 12 Minn. 502; Fir.^t National Bank v. Priest, 50 111. 321.
 
 SEARCH — IN CASE OF LOSS. 532 
 
 apprentice bad been assigned, evidence was given tbat application bad 
 been made to Miss Taylor, Avbo bad ceased to reside at Bomford, for 
 tbe part delivered to ber, and tbat sbe bad said tbat she could not 
 find it, and did not know wbere it was, but Miss Taylor, tbough 
 still living, was not called as a witness ; tbe court beld, tbat tbe 
 part so delivered bad not been sufficiently accounted for; it bad 
 been traced into tbe bands of INIiss Taylor, but no furtber evidence 
 bad been given to sbow wbat bad become of it.'' But wbere one 
 part only of an indenture of apprenticeship bad been executed, 
 and both tbe pauper and master were dead at tbe time of tbe trial, 
 and it appeared on tbe evidence, tbat on inquiry made from tbe 
 pauper shortly before his death, be said tbat tbe indenture had been 
 given up to him after the expiration of tbe apprenticeship, and that 
 he had burnt it : and inquiry had also been made of the daughter of 
 tbe executrix of the master, who said tbat she kncAv nothing about 
 it, and no furtber search was made, tbe court beld tbe proof to be 
 sufficient, since here, if the declaration of tbe pauper was admissi- 
 ble so as to sbow a possession by him, it also showed that furtber 
 search was unnecessary ; and on this ground it was distinguished 
 from tbe case of The King v. Castleton, for there the evidence showed 
 that a furtber search was necessary.' 
 
 *Tbe master of an apprentice, having tbe indentures in r*cqq-i 
 bis possession, failed ; an attorney took the management of 
 bis estate and the custody of his papers, which be inspected with- 
 
 " R. V. Castleton, 6 T. R. 236 ; see also Williams v. Yotmghushand, 1 Stark. 
 C. (2E. C. L. R.) 139. 
 
 ^ R. V. Morton, 4 M. & S. 48. The Court of King's Bench held that in such a 
 case it was sufficient for the parties to show that they had used reasonable dili- 
 gence ; that these were terms applicable to some known or probable place or 
 person in respect of which diligence may be used ; that what the pauper said was 
 admissible, and although it might not amount to proof of the fact that the in- 
 denture had been destroyed by him, it was so far evidence as to afford a reason 
 why further search was not made with him. That if such an inquiry had been 
 made of a merchant for some commercial purpose, and he had given a similar 
 answer it would have been sufficient. It was like a non-production on request 
 and the party accounts for it ; and that this case was distinguishable from that 
 of R. V. Castleton, for there the answer given was a reason for making further 
 search. Whei-e a person to whom letters had been written which were required 
 to be produced, said that he had searched for them in a particular box in which 
 he had put them, without being able to find them, but added that he thought 
 they were somewhere in his possession, but that he had not searched in any 
 other place, it was held that enough had not been done to let in secondary evi- 
 dence : Bligh V. Wellesley, 2 Car. & P. [12 E. C. L. R.) 400.
 
 533 PRIVATE DOCUMENTS. 
 
 out finding the deed; this was hehl to be sufficient evidence of loss, 
 though the widow was still living, and no incjuirj had been made 
 from her : such an inquiry would have been useless after such evi- 
 dence as to the master's papers. "" But where, on an appeal against an 
 order of removal, the appellants, relying on the settlement of a per- 
 son deceased by apprenticeship, called the widow of the deceased, 
 who proved that her husband, in his last illness, told her that he had 
 received the indentures from his master at the end of the apprentice- 
 ship, and had worn them out in his pocket, it was held that without 
 further inquiry evidence of the conversation was inadmissible. And 
 the case was distinguished from that of Ttex v. Mo7'to7i, on the ground 
 that in the case inquiry had been made from the master's executrix." 
 In the case of a parish apprentice, after reasonable proof has 
 been given of a delivery of the indenture to the parish officers, proof 
 should be given of a search in the parish chest, which is the proper 
 place of deposit." 
 
 p^rqi-i *An agreement for a lease had been deposited in the hands 
 
 of the landlord, who, upon application to him by the lessee, 
 
 refused to produce it. Ten years after this and three after the death 
 
 of the lessor, the tenant, upon an appeal, swore that he did not 
 
 •" R. V. Piddlehinton, 3 B. & Ad. (23 E. C. L. R.) 460. 
 
 " R. V. Rawden, 2 A. & E. (29 E. C. L. R.) 156. The court observed, that the 
 evidence was of a danj^erous kind, and to be received with caution. 
 
 " Where the mother of a parish pauper stated that she had received money 
 from the officers of B., to put her son out as an apprentice ; that she had accord- 
 ingly put him out, and delivered the indenture to the wife of a mai-ket gardener, 
 who was dead, having sui-vived her husband, to be delivered to the overseers of 
 B., and that search had been made in the parish chest of B. for the indenture 
 without success; it was held that parol evidence was admissible, the parish 
 chest being the proper place of deposit : R. v. Stourbridge, 8 B. & C. (15 E. C. 
 L. R.) 96 ; M-Gaheij v. Alston, 2 M. & W. 206, infra, p. 538. So where search 
 has been made in the parish chest of the binding parish for the indenture, 
 which had been proved to have been delivered to N. Badger, the mother of the 
 apprentice, to be delivered to the overseer, and the husband being dead, his 
 executor was called to negative the existence of any such instrument among his 
 papers : Rex v. Bromsgrooe, East. T. 1828. Where the indenture was proved 
 to have been delivered by a parish apprentice to his master, who was still 
 living, it was held that the master's declaration, on application by the. appren- 
 tice at the end of the term, that he had delivered the indenture to the parish 
 officer, and proof that a fruitless search had been made among the papers of the 
 parish for the indenture, were insufficient to let in parol evidence of the contents : 
 R. v. Deido Inh., 7 B. & (I. (14 E. C. L. R.) 620 ; R. v. Castleton, 6 T. R. 136, 
 cited by Baylcy, J., as directly in point ; but see 7 Q. B. (53 E. C. L. R.) 642 ; 
 and see Williams v. Younghuabaud, 1 Stark. C. (2 E. C. L. R.) 139.
 
 SEARCH — IN CASE OF LOSS. 534 
 
 know in wliose possession the agreement was, and no inquiry had been 
 made after it, and yet it appears that parol evidence was held to be 
 admissible ;'' and Buller, J., observed, that if it had been in proof 
 that the executor of the lessor had been in possession of the instru- 
 ment, it might have varied the case. After the expiration of the 
 lease, the lessee, the pauper, was entitled to it in strictness, but he 
 neither had it, nor knew whether it existed ; and it was then nine 
 years after its expiration.'' But in general it must be shown that 
 *inquiry has been made after the deed;" and, as appears rtnorn 
 above, it has been hehl that the loss of it must be proved by 
 the person in whose hands it was at the time of the loss, or to whose 
 custody it is traced,^ if that person be living ; and if he be dead, 
 application should be made to his representative, and search should 
 be made amongst the documents of the deceased. 
 
 Where the witness applying to the vicar for the register of bap- 
 
 P E. V. North Bedburn, Cald. 452. 
 
 1 Qu., whether, inasmuch as the document had been proved to be once in the 
 possession of the lessor, who had refused to deliver it up, a presumption did not 
 arise that it was in the hands of the representative? In fact no inquiry had 
 been made after the deed, and there was no proof that it was not still in existence. 
 In Doe dem. Richards v. Lewis, 20 L. J., C. P. 177, a deed conveying property 
 to P. and B., as trustees, was delivered to an attorney by S.. the woman who 
 executed it clandestinely before her intended marriage, with directions not to 
 give it up to any one save AerseZ/and her son together. lie afterwards gave it up 
 to »?., in the presence of her son, and there was no evidence that the deed had 
 been seen since. Search had been made for it on *SVs premises; P. stated that 
 he had no knowledge of the existence of the deed till a short time before the 
 trial, and had it not ; but no search had been made among the papers of B., 
 who was dead, nor any inquiry of his representative. The court held the search 
 insufficient, and Talfourd, J., observed, a search is never sufficient unless it 
 negative the possession of the deed by the party who, by law, should have the 
 custody it. 
 
 ' R. v. *S'^. Sepulchre, 2 Bott. 482 ; Cal. 547. 
 
 ^ R. V. Castleton, 6 T. R. 236. Where policies of insurance had been de- 
 livered to the assignees of a bankrupt, one of whom was since dead, proof of an 
 application to the solicitor under the commission, who answered, that he did 
 not know what was become of them, was held to be insufficient: Williams v. 
 Younghushand, 1 Stark. C. (2 E. C. L. R.) 139. But where an assignment of 
 turnpike tolls had been executed by way of mortgage to K., in an action by -ff'.'s 
 executor against the trustees for arrears of interest, a search for the security in 
 the office of jP.'s solicitor where his papers had been deposited, except some 
 which had been deposited in the office of a Master in Chancery in a suit against 
 the executor, and also in that office without finding it, was considered sufficient 
 evidence of its loss to let in secondary evidence : and it was held that entries in 
 the mortgage book of the trustees containing the names of the creditors, the 
 amount of their securities and the interest due upon them was such evidence : 
 Pardoe, Ex., v. Price, 13 M. & W. 267.
 
 535 PRIVATE DOCUMENTS. 
 
 tism is told that there was none prior to a j^articular date, the vicar 
 not being; called, his declaration is not evidence of the loss of such 
 register so as to let in secondary evidence.' 
 r*rop-i *With respect, however, to the nature of the search which 
 
 should be made for a document, it Avould appear that no 
 general rule exists ; the question in every case is, whether there has 
 been evidence enough to satisfy the court" that a bond fide search 
 was made for the instrument where it was likely to be found ; and 
 that the omission to produce it does not arise from mere carelessness, 
 neglect, or fraud. In the case in which these remarks were made, 
 on an examination before removing justices, it Avas deposed, that 
 after an apprentice's death D. had possession of the indenture of 
 apprenticeship, and had stated on inquiry that she had given it to 
 the master of a workhouse in which she was an inmate, that he Avas 
 dead, and his widow had stated that she had searched his papers but 
 could not find it, and had given up all parish papers to the assistant 
 overseer ; and it was further deposed that the latter stated that he 
 had examined the papers but did not recollect seeing the indenture, 
 and had handed them over to another overseer, who said that he had 
 searched them but could not find it, and that D. having died since the 
 inquiry made of her, the master and matron of the workhouse where 
 she died said no papers were found in her possession, nor could the 
 indenture be found amongst the papers left by the attorney who pre- 
 pared it upon inquiry of his widow and search by her ; secondary 
 evidence was held by the court to have been properly admitted.'^ 
 
 Where the purchaser of a weekly paper, upon an indictment for 
 P^-or-n a libel, swore that he believed that the original *had been 
 
 destroyed, it was held to be sufficient proof to let in second- 
 ary evidence." Where a license to trade with an enemy, granted by 
 
 ' Walker v. Beauchamp, 6 C. & P. (25 E. C. L. R.) 552. 
 
 " The question as to the admissibility of the secondary evidence is for the 
 court, and not for the jury ; and in this respect it resembles the question as to 
 whether the custody from which an ancient document is produced be the proper 
 one: lte(j. v. Keinhvorth, 7 Q. B. (53 E. C. L. R.) 042; Bees v. Walters, 3 M. & 
 W. 527, 531 : IJoe v. Keeling, 11 Q. B. (63 E. C. L. R.) 884. In order to decide 
 this question the court may receive answers to inquiries, without calling all the 
 persons of whom those inquiries were made: [Reg. v. Kenilworth, and ante, note 
 (Z) ;) as in the case of inquiries after an attesting witness, see ante, p. 514, et seq. 
 
 » lieg. v. Kenilworth, 7 Q. B. (53 E. C. L. R.) G42. 
 
 " R. V. Johnson, 7 East 65, infra, note (c). It may be presumed that an use- 
 less instruiiiont has boon destroyed ; see the observations of Bailey, J., in Ji. v. 
 East Farleigh, 6 1>. & R. (16 E. C. L. R.) 153. See also Kensington v. Inglis, 8 
 Plant 273, inj'ra. In an action for a libel in a ncwspaj)er, called the Noncon- 
 formist, published by the defendant, it was desired to prove that a copy had
 
 SEARCH — IN CASE OF LOSS. 537 
 
 a governor of a colony, had been returned after being used to tlie 
 secretary of the governor, who swore that it was his custom to put 
 aside such licenses amongst the waste papers in the oflice, as being of 
 no further use ; that he supposed that he had disposed of the license 
 in question in this manner ; and that he had searched for it, but did 
 not recollect whether he had found it or not, though he did not think 
 that he had found it; the court were of opinion that the evidence 
 satisfied what the law required in respect of search, and established 
 with reasonable certainty the fact of the license being lost. It was 
 not, the court observed, to be expected that the witness should be 
 able to speak with more confident certainty to a fact to which his 
 attention was not particularly drawn at the time on account of any 
 importance supposed to belong to it.^ Where a loss had been settled 
 upon a policy of insurance against fire, in the year 1813, and upon 
 a trial in 1819, the plaintifi", in an action for libel, charging him with 
 having made fraudulent claims upon the insurance company with 
 respect to such loss, called their agent, who stated that the policy 
 was returned to him after the fire, and that he had it in his posses- 
 sion *then, and afterwards when the plaintiflF made a larger r*;^QQ-i 
 insurance with the company ; that upon the loss having been 
 settled, the old policy became an useless paper : that he did not know 
 what had become of it, but he believed he had returned it to the 
 plaintiff. The clerk to the plaintifi"s attorney then proved that 
 within a few days of the trial he went to the plaintiff's house to search 
 for the policy, when the plaintiff showed every drawer where he usu- 
 ally kept his papers, that he examined such drawers, and every other 
 place wherein he thought it likely to find such a paper, without find- 
 ing it. Held, that it was sufficient to entitle the plaintiff to give 
 secondary evidence of the contents of the policy.^ 
 
 A check having been drawn on account of a parish, was delivered 
 to the paying clerk of the parish ; the bankers of the parish on the 
 same day paid a sum of the same amount ; the course was to return 
 
 been sent to a public reading room in the plaintiff's parish to which there were 
 many subscribers. The president of the reading room stated that a newspaper 
 bearing that name was gratuitously sent to the room ; that from th^ glance he 
 had of it, he judged that it contained the libel complained of; that it remained 
 there for a fortnight, when it was taken away as he supposed, and not returned ; 
 that he had searched the room for it and believed it was lost ; and this evidence 
 was considered sufficient to make secondary evidence of its contents admissible : 
 Gathercole v. Miall, 15 M. & W. 319. 
 
 y Kensington v. Inglis, 8 East 273. 
 
 " Brewster v. Sewell, 3 B. & Aid. (5 E. C. L. R.) 296. See also R. v. East Far- 
 leigh, 6 D. & R. (16 E. C. L. R.) 147.
 
 Oda PRIVATE DOCUMENTS. 
 
 the cancelled check to the paying clerk to be deposited in an apart- 
 ment of the workhouse. The paying clerk having gone out of office, 
 application had been made (by a witness called) to his successor for 
 an inspection of the checks; he handed to the witness several bun- 
 dles wdiich were searched unsuccessfully for the check in question, 
 and it was held that secondary evidence was admissible.'^ 
 
 Where it appeared that the magistrate who took the *in- 
 L J formations had returned them to the clerk of the peace, and 
 the clerk to the latter, stated that it was the practice where bills liad 
 been ignored to throw away the papers as useless, and that after 
 searching the information could not be found ; it was held, in an 
 action for a malicious prosecution, that this was sufficient to let in 
 secondary evidence of their contents, without calling the clerk of 
 the peace to show they were not in his possession : for if the informa- 
 tions were delivered to the deputy, they were delivered to him as the 
 agent of the clerk of the peace, and not for his own purposes ; it was 
 therefore to be presumed that the documents were not among his 
 private papers, but rather among those in the custody of the clerk of 
 the peace.'' The legal custody of a document appointing a particular 
 person to an office, such as overseer, is in that person ; for he is the 
 party most interested in the instrument, and requires its production 
 as a sanction for what he does under its authority.'' A presumption 
 hence arises that such an officer has the custody of his appointment, 
 and consequently parol evidence cannot be given of such an appoint- 
 ment without proof of application to him.*^ 
 
 "• McGuhey v. Alston, 2 M. & W. 206. Where the warrant to the officer to 
 seize under aji.fa. was not produced nor was any notice given to produce it, 
 and it appeared to have been given to the son of the officer, who believed he had 
 either returned it to his father, or to the sheriff's office, and the officer stated that 
 it was usual to deliver it to the auctioneer, who transmitted it, with the auction 
 sheet, to the Excise Office, through the district supervisor, and proof was given 
 of search made by the auctioneer among his own papers, and at the sheriff's 
 and excise offices, but the supervisor was not called, nor was any search amongst 
 his papers proved ; it was held, that sufficient diligence was proved to let in se- 
 condary evidence of the warrant to connect the officer with the warrant : Min- 
 shull V. Lloyd, 2 M. & W. 450. 
 
 " Freeman v. ArMl, 2 B. & C. (9 E. C. L. R.) 494. 
 
 " Per L*(l Ellenborough, i?. v. Stoke Goldiny, 1 B. & Aid. 173. In replevin 
 and avowry by the defendants, as overseers, for the distress of poor's-rates, evi- 
 dence that on one of them being applied to for his appointment he said he had 
 lost it, was held to be sufficient to let in secondary evidence, the party not being 
 capable of being called: Governors of Bristol Poor v. Wait, 6 C. & P. (25 E. C. 
 L. II.) 591. 
 
 *• 1 B. & Aid. 173 ; and as to the custody of a sheriff's warrant, see 1 Stark. 
 C. (2 E. C. L. II.) 413. Where a warrant to seize for borough rates had been
 
 SEARCH — IN CASE OF LOSS. 540 
 
 *Wherc the appointment of overseers for the year 1802 .-^^ .^-| 
 could not be found in the parish chest, and search had been L 
 made among the papers of B., deceased, who had acted as executor 
 of the party who acted as overseer for that year ; it was hehl to be 
 sufficient to let in parol evidence of the contents of that appoint- 
 ment, as being of a single overseer for that year.'' 
 
 Where the production of the instrument is on legal grounds im- 
 possible, the effect is the same in respect of secondary evidence as if 
 it had been lost or destroyed. As where it is in a foreign country, 
 fi'om whence it cannot be removed.^ So if the instrument on grounds 
 of policy cannot be read.^ So if a party objects to the production 
 of a deed by one who has possession as his trustee.'' ^ 
 
 executed by the high constable, who said he had no doubt that he had deposited 
 it in his office, yet he could not find it, and did not know where it was, but that 
 the town clerk also had access to his office ; secondary evidence of it was ad- 
 mitted : Fernley v. Worthington, 1 M. & G. (39 E. C. L. R.) 401. Where, on a 
 motion for a new trial, a document had been handed up to the judges, and could 
 not afterwards be found ; it was held that no search was necessary to be made 
 at the judge's chambers, as it was to be presumed to have been returned to the 
 party producing it: Deacon v. Fuller, 6 C. & P. (25 E. C. L. R.) 74. 
 
 « R. V. Witherby, 4 M. & Ry. 724. 
 
 *■ Alivon V. Furnival, 1 C, M. & R. 277. In assumpsit for money received, 
 being the amount of a bill which the defendant had obtained, and paid into his 
 bankers ; held, that the bill not being produced, nor any account of it given, the 
 banker's clerk could not be asked as to a bill paid in by the defendant, answer- 
 ing to it in description, and credited to him ; but it afterwards appearing that 
 the bill was in Scotland, out of the jurisdiction, so the plaintiff could not com- 
 pel the production of it, a new trial was granted on payment of costs : Atkins v. 
 Owens, 4 Nev. & M. (30 E. C. L. R.) 123 ; and 2 Ad. & Ell. (29 E. C. L. R.) 35. 
 But see E. v. Douglas, 1 Car. & K. (47 E. C. L. R.) 670. 
 
 ^ Thus if a document be in the hands of an attorney, and out of regard to his 
 client's privilege or his own lien it cannot be read, secondary evidence is admissi- 
 ble : Mills V. Ocldg, 6 C. & P. (25 E. C. L. R.) 732 ; Marston v. Downes, 1 Ad. 
 & Ell. (28 E. C. L. R.) 31 ; Doe dem. Gilbert v. Ross, 7 M. & W. 102 ; Hibbard 
 v. Knight, 2 Ex. 11 ; Newton v. Chaplyn, 19 L. J., C. P. 374 ; Lloyd v. Mostyn, 
 10 M. & W. 478 ; Higgs v. Taylor, 5 Car. & K. (47 E. C. L. R.) 85. In Doe v. 
 Owen, 8 C. & P. (34 E. C. L. R.) 110. Lord Abinger expressed an opinion that 
 Mills V. Oddy, was not law, but this was erroneous. In Doe v. Ross it was 
 pointed out that the attorney must be served with a subpoena duces tectun ; and 
 that perhaps it may be necessary to show that the client also objects to the pro- 
 duction of the document ; but the objection of the client in open court is suffi- 
 cient, though he has been served with only a subpoena, and not a subpoena duces 
 tecum: Newton v. Chaplin, 19 L. J., C. P. 374. 
 
 '' Where the defendant called a party, who as trustee held a deed of composi- 
 
 ^ A copy of a deed may be read in evidence, upon the oath of a party that he
 
 541 PRIVATE DOCUMENTS. 
 
 *When sufficient evidence has been given of the loss of 
 r*5411 . 
 
 ^ -J the deed or other instrument, of which the Court is to judge,' 
 
 it must be shown that the instrument existed as a genuine instru- 
 ment ;'' that it was written on stamped' paper or parchment; and in 
 case of apprentice deeds, what sum was paid with the apprentice, 
 and that the deeds bore an ad valorem stamp ;"" for the consciousness 
 of a defect of this nature may have been a motive for concealing or 
 destroying the instrument."^ But the *presumption seems 
 L "-' to be that an instrument not found after reasonable search 
 
 tion between the plaintiff and other creditors and the mother of the defendant, 
 but the defendant was no party to it, and the phxintiff objected to its being pro- 
 duced ; it was held that secondary evidence might be given of its contents by a 
 party who had made an extract from it; {per Gurney, B.) Cocks v. Nash, 6 C. 
 & P. (25 E. C. L. K.) 154. 
 
 * Harveu v. MitcheU, 2 M. & Rob. 366 ; seei?. v. Eenilworth, 7 Q. & B. (53 E. 
 C. L. R.) 642, supra, p. 536. n [u). 
 
 ^ Goodier v. Lake, 1 Atk. 446 ; R. v. Sir T. Culpepper, Skinner 673. But 
 where the terms of a license required that the time of sailing should be en- 
 dorsed thereon, and the license was burnt at the custom-house, a proper endorse- 
 ment was presumed : Butler v. Allnut, 1 Stark. C. (2 E. C. L. R.) 222. Where 
 the lessor read the terms of a demise to the tenant, who did not sign them, nor 
 were they shown to him, parol evidence of those terms was admitted : Trewhitt 
 V. Lambert, 10 A. & E. (37 E. C. L. R.) 470. 
 
 ^ Where the plaintiff had lost his part of an agreement under seal, after it 
 had been duly stamped, and the defendant upon notice produced his part un- 
 stamped, it was held that it might be read in evidence : Munn v. Godbold, 3 
 Bing. (11 E. C. L. R.) 292. See further, Vol. II., tit. Stamp; and see also 
 Garnons v. Swift, 1 Taunt. 507. 
 
 ™ See Goodier v. Lake, 1 Atk. 446 ; Burn, J., tit. Poor. 
 
 " Where however, a party in possession of an original deed or other instru- 
 
 had searched the clerk's office and all other places, where he supposed the ori- 
 ginal deed might probably be found : Ben v. Peete, 2 Rand. 539. The book of the 
 judge of the probate court may be given in evidence, where the original will is 
 proved to be lost: Jackson v. Lncett, 2 Caines 363. Where a deed is proved to 
 be lost, and its execution established by a subscribing Matness, a copy, sworn to 
 have been made out by a clerk, as a true copy, is admissible to show title in the 
 lessor of the plaintiff in ejectment: Morgan v. Marshall, 7 J. J. Mar.sh. 316. 
 An ancient record of a deed in a book of records and in the writing of the town 
 clerk, though not signed or certified by him, is admissible ; the loss of the 
 original having been shown : Booge v. Parsons, 2 Yt. 456. Copies of deeds, made 
 by disinterested persons of good character, and under circumstances that create 
 no imputation of fraud, may be received in evidence where the original is 
 proved to be lost : Allen v. Parish, 3 Ilamm. 107. On diligent search secondary 
 evidence is admissible: Bell v. Young, 1 Grant 175; Grajfw. Pittsburg & Steu- 
 henville UaUroad Co., 7 Cas. 489; Booth v. Cook, 20 111. 129; Kidder v. Blais- 
 dell, 45 Me. 461 ; Pha;nix Lis. Co. v. Taylor, 5 Min. 492. 
 
 ' The instrument must be proved to have been duly executed with the formalities
 
 LOST, OR NOT PRODUCED — HOAV PROVED. 542 
 
 made lias been duly stamped." Its execution must be proved accord- 
 ing to the nature of the instrument ;'' if a deed, by means of an at- 
 testing witness, or by proof of his handwriting, if he be dead, or that 
 of tlie obligor, if the deed be not attested, in the manner already 
 stated. "i 
 
 mcnt withholds it, aftor notiee to produce, it may under the circumstances be 
 presumed that the instrument was properly stamped : Crisp v. AnrJerson, 1 
 Stark. C. (2 E. C. L. R.) 35; Valler v. Ilorsfall, 1 Camp. C. 501; Poolej/ v. 
 Goodwin, 4 Ad. & E. (31 E. C. L. R.) 94. But where the plaintiff relied on an 
 affreement upon the deposit of some goods in the defendant's possession as a 
 security, Avhich the latter refused upon notice to produce, whereupon a witness 
 produced a copy of it which he had kept, l)ut on cross-examination stated that 
 the orijrinal was not stamped when <2;iven to the defendant, and it appeared the 
 plantiff's attorney had had an inspection of it shortly before the trial, and he 
 was not called, the court held that the presumption of its beino; properly 
 stamped, might arise from its non-production, was rebutted, and the copy was 
 properly rejected : Crawther v. Solomons, 6 C. B. (60 E. C. L. R.) 758. 
 
 ' Hart V. Hart, 1 Hare 1 ; R. v. Long Biickbi/, 7 East 45 ; Pooley v. Goodwin, 
 4 Ad. & E. (31 E. C. L. R.) 94; 1 Stark. C. (2 E. C. L. R.) 35. 
 
 P R. V. Culpepper, Skinner 673, by Lord Hardwicke, C. J. ; Goodier v. Lake, 
 1 Atk. 446. Where a note has been lost, a copy is not evidence unless the note 
 be proved to be genuine. An endorsement on a draft deed by one of the de- 
 fendants, who was a clerk in the solicitor's office, of the engrossment of a deed, 
 is not sufficient evidence of execution to let in secondary evidence : Doe v. 
 Whitefoot, 8 C. & P. (34 E. C. L. R.) 270. 
 
 •i But qucere, whether this is strictly necessary, as it is now well settled that 
 there are no degrees of secondary evidence : Doe v. Ross, 7 M. & W. 102 ; Hall 
 V. Ball, 3 M. & G. (42 E. C. L. R.) 242; Brown v. Woodman, 6 C. & P. (25 E. 
 C. L. R.) 206 ; the omission to produce the best evidence being merely matter 
 of observation. In Cook v. TansweU, 8 Taunt. (4 E. C. L. R.) 450; Poole v. 
 
 required l»y law : Kimball v. Morritl, 4 Greenl. 368 ; Elmondorjf v. Carmichael, 
 3 Litt. 472 ; Shrouders v. Harper, 1 Harring. 444 ; Porter v. Wilson, 1 Harris 
 641 ; Stone v. Thomas, 2 Jones 209. After proof of the loss or destruction of 
 a deed, its execution and contents are to be established by the subscribing wit- 
 nesses, if they can be had ; otherwise by other legitimate testimony, declara- 
 tions of the grantor, &c. : Griffith v. Huston, 7 J. J. Mavsh. 385; Kelsey v. 
 Hanmer, 18 Conn. 311 ; Anderson v. Snow, 8 Ala. 504. The due execution of 
 a lost deed, thirty years old may be presumed : Bcall v. Dearimj, 7 Ala. 124. 
 In the case of a lost bond, the acknowledgment of the obligor that he executed 
 it is held sufficient proof without producing the subscribing witnesses : Maynor 
 V. Lewis, 2 Ga. 205. Where an attorney stated that a letter was written to him 
 by the plaintiff, whica was lost and the contents not remembered by him, 
 another person, to whom the attorney showed the letter, is competent to prove 
 its contents, although he has no knowledge of the handwriting. The identity 
 of the letter'and the proof of its contents are questions for the jury : Curry v. 
 Robinson, 11 Ala. 266.
 
 542 PRIVATE DOCUMENTS. 
 
 But where proof of the execution would have been dispensed with 
 in case the original had been produced, proof of execution is unne- 
 cessary" where the deed is lost. So where tlie want of the original is 
 occasioned by the default or misconduct of the adversary. ^ 
 
 After proof of the due execution of the original, the contents 
 
 should be proved by means of a counterpart,^ or other original, if 
 
 there be one, it being an established rule that all originals must be 
 
 accounted for before *secondary evidence can be given of any 
 r*5431 ... 
 
 L J one ;' no evidence of a mere copy is admissible, until proof has 
 
 been given that the counterpart cannot be produced," even although 
 
 such counterpart was not stamped.'' If there be no counterpart, a copy 
 
 may be proved in evidence by any witness who knows that it is a 
 
 copy, from having compared it with the original ;^ or the party may 
 
 Warren, 8 Ad. & E. (35 E. C. L. R.) 582 ; where an attested instrument was in 
 the possession of the other side, it was held unnecessary to call the attesting 
 witness. 
 
 ' Goodier v. Lake, 1 Atk. 446. 
 
 ' The counterpart of a lease, purporting to have been executed by the lessee of 
 a lease granted by the mortgagor in conjunction with the mortgagee, cannot be 
 read against one who claims under the mortgagee, without some evidence that 
 the original lease which has been lost was executed by the mortgagee : Doe v. 
 Ti-apaud, 1 Stark. C. (2 E. C. L. R.) 281. But it was held, that proof that the 
 original lease was signed by the mortgagee, the attesting witness not being 
 known, would be sufficient to warrant the reading of the counterpart: Ibid. 
 
 'Fritchardy. Symonds, B. N. P. 254; E. y. Castleton, 6 T. R. 236. Per 
 Parke, B., in Alioon v. Furnival, 1 C, M. & R. 292 ; Broivn v. Woodman, 6 C. 
 & P. (25 E. C. L. R.) 206 ; infra, note [g). 
 
 " R. V. Castleton, 6 T. R. 236 ; TMrston v. Delahay, Hereford Ass. 417 ; 4 B. 
 N. P. 254, semble, R. v. Kirhy Stephen, B. S. C. 664 ; Liebman v. Pooley, 1 
 Stark. C. (2 E. C. L. R.) 167; Doxon v. Ilaigh, 1 Esp. C. 409; Alivon v. Fur- 
 nival, 1 C. , M. & R. 292. Where there are several parts of a deed, of which 
 one is in the hands of the defendant, who has notice to produce it, and the 
 others arc inaccessible to the plaintiff, he may give a copy in evidence: Doxon 
 V. Haigh, 1 Esp. C. 409. 
 
 * Where it was proved that there were two parts of a deed on which the 
 action was founded, that executed by the defendant being lost, it was held that 
 the counterpart executed by the plaintiff, and not the draft, was the next best 
 evidence, and admissible in evidence as an authenticated copy, although not 
 stamped: Mann v. Godbold, 3 Ring. (11 E. C. L. R.) 292. And see ViUiers v. 
 VilUers, 2 Atk. 71 ; and B. N. P. 254. But whether a copy or other secondary 
 evidence would not have been admissible seems to be at least questionable: see 
 Doe v. Wainwrighf, 5 Ad. ^t E. (31 E. C. L. R.) 523. 
 
 ' R. X. P. 254; 1 Kob. 117; /.*. v. Kirl);/ Stephen, B. S. C. 664; Lloyd v. 
 Md.f/yn, ID .M. .V: W. 47>!, infra, note (//) ; Crawford and Lindsay Peerage, 2 II. 
 of [i. (.'a. 534. An entry in the register book at the custom house, stating that 
 a certificate of a register was granted on an affidavit by A. that he was an
 
 HOW PROVED BY SECONDARY EVIDENCE. 544 
 
 produce an *abstract, or give in evidence a deed executed ,-,.,,-, 
 by the adversary, in which the instrument to be proved is ^ ' J 
 recited ;'' or even give parol evidence of the contents of a deed.'' It 
 "was at one time thought that the party who could not produce the 
 original document was bound to give the next best evidence of it ; 
 but it seems now to be settled that, although the several means of 
 proof above mentioned have different degrees of force as evidence, 
 their admissibility is not regulated by such gradations. ^Yith refer- 
 ence to the question of admissibility there are no degrees of secondary 
 evidence ; but where it is admissible at all, even parol evidence may 
 be received, notwithstanding an attested copy, or other better 
 secondary evidence, is in exisrence." It has been said, that where 
 
 owner, is not secondary evidence of the contents of the affidavit. Some person 
 who has seen and knows it was made by A. must be called : Teed v. Martin, 4 
 Camp. 90. Where one writing is offered as secondary evidence of the contents 
 of another, it is not necessary to prove that one was taken from the other, or 
 that they have been collated ; it is sufficient if both were copied from the same 
 draft, by a person who believes them to be correct : Medlicot v. Joyiier, 1 Mod. 
 4. But as to a copy of a copy, see Eceringham v. Boundell, 2 M. & Rob. 38. 
 A machine copy, produced by the person who made, though he did not compare it, 
 is admissible: Simpson v. Thuretoii, 2 M. & Eob. 433. The contents of a tablet 
 in the church were admitted without producing an examined copy : Doe d. Coyle 
 V. Coyle, 6 C. & P. (25 E. C. L. R.) 359. 
 
 " SGeBurneU v. Lynch, 5 B. & C. (11 E. C. L. R.) 601 ; Com. Dig., tit. Ev. B. 
 5; Skipicith v. Shirley, 11 Ves. 64. Such a deed would, however, seem to be 
 original evidence: see ante, p. 506, note e. 
 
 '' Sir E. Seymour^s case, 10 Mod. S ; R. v. Motheriiuiham, 6 T. R. 556 ; Cocks 
 V. Kash, ante, p. 541 ; Broicn v. (Voodman, infra. In trover against the sheriff 
 by assignees, the warrant to the officer having been lost, parol evidence of its 
 contents to connect the officer with the sheriff was held to be admissible, with- 
 out calling for the entry in the book at the sheriff's office: Moon v. Raphael, 7 
 C. &. P. (32 E. C. L. R.) 115. 
 
 * If proof can be given of a complete copy, such proof is no doubt preferable 
 to a mere abstract, and it was once doubted whether proof of an abstract was 
 sufficient where a copy appeared to be in existence : see Doe (Ze?re. jSowZaudson v. 
 Waiimriyht, 5 Ad. & E. (31 E. C. L. R.) 520; Mann v. Godbolt, 3 Bing. (11 E. 
 C. L. R.) 294. The general rule, however, seems now to be settled, that the 
 law does not i-ecognize gradations of mere secondary evidence after all in the 
 nature of original evidence has been accounted for : Doe dem. Gilbert v. Ross, 
 7 M. & W. 102; Hall v. Ball, 3 M. & G. (42 E. C. L. R.) 243; Jeans v. Wheadon, 
 2 M. & Rob. 486 ; Doe d. Moore v. Williams, Car. & M. (41 E. C. L. R.) 615 ; 
 Brown v. Woodman, 6 C. & P. (25 E. C. L. R.) 206. In that case the defendant 
 having given tiie plaintiff notice to produce a letter, of Avhich he (the defendant) 
 had kept a copy, and the letter not being produced, it was held that he might 
 give parol evidence of its contents, and that he was not bound to put in the 
 copy. The principal reason for this seems to be that the party has not neces- 
 sarily the means of knowing what is the next best evidence.
 
 544 PRIVATE DOCUMENTS. 
 
 possession lias gone along with a deed for many years, the original 
 of which is lost or destroyed, an old copy may be given in 
 *evidence, without proof that it is a true copy, because it 
 '- ^ may be impossible to give better evidence.*^ Letters patent 
 creating a peerage not being to be found, entries in the Lords' 
 Journals showing the limitations of the barony were admitted by the 
 House on a claim of peerage.* And an examined copy of the 
 record of the patent produced from the proper oflSce, was admitted 
 under similar circumstances, on a claim to vote at elections of Irish 
 peers.^ In the Slane Peerage case, where there was no patent of 
 creation or enrolment to be found, and the contemporary Lords' 
 Journals were not in existence, an old book purporting to be copied 
 from them by an officer of the House, whose duty it Avas to prepare 
 lists of peers present and absent, was received as evidence of the 
 fact of a peer sitting in parliament.^ The registry of a conveyance 
 in a register county is not evidence, unless the defendant has had 
 notice to produce the conveyance, or it is lost.*^ 
 
 * After proof of ineffectual search for the deed of endow- 
 L ^ ment of a vicarage, a chartulary of an abbey to which the 
 
 rectory formerly belonged, stating the particulars of endowment, and 
 found in the possession of the owner of the abbey lands, is admissible 
 
 ^ B. N. P. 254 : Style 253. The reason that it may be impossible to give bet- 
 ter evidence is by no means a satisfactory one ; and in general the contingent 
 impossibility of procuring better evidence will not warrant the admission of 
 evidence which is in itself otherwise defective. The reception of evidence from 
 necessity must be founded on a general necessity, or probability of the failure of 
 all other and superior evidence ai-ising out of the nature of the case ; as formerly 
 in the instance of servants and agents. Qu-, whether in the above case such a 
 copy would be evidence, without some proof of its being a true copy of a lost 
 original. See Bac. Abr., Evid. F. And where possession had gone with the 
 deed (an agreement of demise) for sixty years, and the deed could not be found 
 in the muniment room of the plaintiif, but a paper purporting to be an attested 
 copy was found there, both the attesting witnesses to which were dead, and it 
 was proved that persons of the names of the attesting witnesses to the original 
 were also dead ; Pollock, C. B., refused to admit the copy in evidence: Brindlep 
 V. Woodhouse, 1 C. & K. (47 E. C. L. R.) G47. 
 
 * Barony of Saye and Sele, 1 H. of L. Cases 507. 
 
 ' Lord LainesboroiKjli s case, 1 II. of L. Cases 510. 
 
 8 5 CI. &r. 21. 
 
 ^ Multon V. Harris, 2 Esp. 549. An examined copy of the I'cgistry of a deed 
 in a register county, is admissible as secondary evidence : Doe v. Kilner, 2 Car. 
 ,t P. (12 E. C. L. K.) 289 ; Collins v. Maule, 8 Car. & P. (34 E. C. L. R.) 502; 
 but it has been said only against the parties to it, or tliose who claim under 
 them : Doe d. Loscombe v. Clijord, 2 Car. & K. (61 E. C. L. R.) 452.
 
 HOW PROVED BY SECONDARY EVIDENCE. 547 
 
 as secondary evidence.' In *tlie Fitzivalter Peerage case a ^^^ .,,-, 
 copy of a will produced from the prerogative office -was re- ^ ' J 
 ceived, after proof that searcli had been made for the original, and 
 that the practice of the office, at the date of the will, was to give out 
 
 ' Upon tlie trial of an issue, whether a particular farm in the parish of S. N. 
 was discliar^od of tithes on payment of a modus, after proof of an ineffectual 
 search for the original endowment and appropriation, a book was produced, 
 said to be an old ledger or chartulary of the abbey of Glastonbury, from the 
 muniment-room of the Marquis of Bath (the owner of the abbey lands), con- 
 taining entries, showing that at the time of those entries the small tithes were 
 assigned to the vicar, no mention being made of any money modus ; the book 
 contained also other entries relating to the appropr'ation of the rectory and en- 
 dowment of the vicarage. This book having been rejected on the trial, on a 
 motion for a new trial its admissibility was objected to on two grounds: 1st, 
 that it had not been shown to have belonged to the abbey of Glastonbury ; and 
 2d, that the evidence did not bear upon the facts in issue. But upon the first 
 objection, the court was of opinion, that search having been made as was 
 admitted, in every place where the endowment itself might be expected to be 
 found, and none being found, a copy was evidence. That such a book, con- 
 taining a description of the estates of an abbey, and the transactions concern- 
 ing them, would on the dissolution of the abbey, go to the ofiicers of the Crown, 
 and from them to the grantees under the Crown ; and consequently, that the 
 only possible v.'ay of showing the connection between the book and the abbey 
 was by proving a connection between the possessor and the Crown, by showing 
 him to be in possession of lands which passed from the abbey to the Crown, and 
 from the Crown to the grantee. That supposing the book to have been traced 
 to the custody of the abbot, the account it contained of the particular matters 
 of endowment was admissible, the endowment itself not having been found 
 after such in the natural places of deposit : Bullen v. Michell, 2 Price 399. 
 Judgment was afiirmed in the House of Lords, 4 Dow. 298. Lord Redesdale in 
 giving his judgment, observed that as the original instruments would, if they 
 could have been produced, have been admissible in evidence, the only question 
 was, whether the entries in the book were evidence of the license of appropria- 
 tion and endowment. That they were admissible as the next best evidence that 
 could be produced. The two instruments seemed, he said, to have been copied 
 by a person employed for the purpose, probably one of the monks, and deposited 
 among the muniments of the abbey, that the instruments might 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 otherwise, and 
 they were found in a situation where they were likely to be kept. See also 13 
 M. & W. 267 ; and ante, p. 528. A copy of a lost decree establishing manorial 
 customs against the lord, and found amongst his papers, is secondary evidence 
 of the decree against him, for its place of deposit shows that it was considered 
 to be a copy : Price v. Woodhouse, 3 Ex. 616 ; but it is not evidence as an ad- 
 mission of the facts. So an office copy of a decree produced by the lord as evi- 
 dence of the custom, being lost, secondary evidence of that copy was admitted : 
 Ibid. 
 
 33
 
 547 PRIVATE DOCUMENTS. 
 
 the original nfter making copies.'' And in the same case an old 
 attested copy of a deed of settlement, produced from the proper cus- 
 tody, Avas received after proof of unsuccessful search for the original, 
 and that the possession of the estates comprised in the settlement 
 went with the copy. 
 
 After notice to the plaintiff to produce a letter, which he admitted 
 to have received from the defendant, it was held, that an entry by a 
 deceased clerk in a letter-book, professing to be a copy of a letter 
 from the defendant to the plaintiff, of the same date, was admissible 
 evidence of the contents, proof having been given, that according to 
 the course of business, letters of business written by the plaintiff 
 were copied by this clerk, and then sent off by the post;' and Lord 
 r*f^J.ST Ellenborough observed, that if such *evidence were not to be 
 admitted, the most careful merchant would be unable to 
 prove the contents of a letter after the death of his entering clerk. 
 
 In proving the contents of a letter, it is not necessary to call the 
 clerk who wrote the letter, although his testimony may be had. It 
 is sufficient to prove it by any other witness who recollects the con- 
 tents ; for it is merely contingent whether the clerk who wrote the 
 document would recollect its contents better than any other person." 
 Where a secretary had made entries of the licenses granted by the 
 governor of a colony, in a memorandum book, on proof of loss of the 
 license, it was held that parol evidence might be given of the con- 
 tents Avithout producing the book, and that if the book were to be 
 produced it could not be read in evidence, and would be of no use 
 except to refresh the memory of the witness. ° 
 
 " lOCl. &r. 946. 
 
 ' Pritt V. Fairclovgh, 3 Camp. 305 ; in this case Lord Ellenborough laid stress 
 upon the circumstance that the defendant had admitted the receipt of the letter, 
 and might rehut the evidence by producing the original ; but even if there had 
 been no sucli admissions, it seems that the evidence would have been admissible. 
 So the copy of a letter, accompanied with a memorandum, in the handwriting 
 of a deceased clerk, purporting that the original had been forwarded by him, 
 was admitted as evidence, upon proof that this was his usual mode of trans- 
 acting business : Hagedorn v. Reid, 3 Camp. 370 ; see also Roberts v. Bradshaw, 
 1 Stark. C. (2 E. C. L. R.) 28 ; Tooseij v. Williams, Moo. & M. (22 E. C. L. R.) 
 129-, Lord Melville scase. 29 ; How. St. Tr. 734; Siurje v. Buchanan, 10 A. & E. 
 (37 E. C. L. R.) 598 ; and ante, p. 494. 
 
 " Leibman v. Fooley, 1 Stark. C. (2 E. C. L. R.) 167. 
 
 ° Kensington v. Inglis, 8 East 273. In this case the entry in the memorandum- 
 book does not appear to have been a copy of the document which the witness 
 could have sworn to as such, but merely a memorandum of the fact that such a 
 license had been granted.
 
 HOW PROVED BY SECONDARY EVIDENCE. 548 
 
 Where a license from the Crown has been lost, the contents 
 should be proved by the registry at the Secretary of State's officeJ' 
 
 *In the case of Bullen v. 3IicheU,'^ it was held then an old r;}:rin-i 
 ledger or chartulary of the abbey of Glastonbury was admis- 
 sible as secondary evidence of a license of appropriation and of the 
 endowment of a vicarage, as between the vicar and occupier of a 
 farm, upon the question whether the farm was discharged of tithes 
 on payment of a modus. And it being considered that the book 
 
 1 Rhind v. Wilkinson, 2 Taunt. 237. Or rather may be so proved : see ante, 
 note (c). Upon the impeachment of Lord Melville, 29 How. St. Tr. 714, it was 
 proposed to prove the contents of a letter of attorney, under which it was al- 
 \eged that Mr. Douglas had been directed by Lord Melville to apply to the 
 Treasury for moneys from time to time as his paymaster ; and for this purpose 
 the managers offered in evidence an entry in a book kept in the Exchequer, 
 which book contained copies of all the letters of attorney for the receipt of 
 money at the Exchequer. No such letter had been found, after diligent search, 
 among Mr. Douglas'' s papers, shortly after his death, but it was proved that an 
 official order had been made out for Mr. Douglas to receive the money under a 
 letter of attorney ; and the fact of Mr. Douglases appointment as paymaster was 
 proved by a letter in Lord Mdville's handwriting, and the clerk of the office 
 proved that he had made the entry from an official letter of attorney. After 
 argument, the entry was rejected. There is no legal proof (said the Lord ChaH- 
 cellor) of Lord MelvilWs handwriting, and it does not appear whether the at- 
 testing witnesses are living or dead ; nor does it appear that Mr. Douglas ever 
 received any money under that appointment. For these reasons it was deter- 
 mined that the managers had not entitled themselves to read the paper. Upon 
 this the managers proceeded further, 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, whose 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 twenty-four years before this time), of providing a stamp for the power 
 of attorney from Lord Melville 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 be read. Where a sur- 
 render of a copyhold was stated to have been made by power of attornej', the 
 court roll, stating that fact, is good secondary evidence of it: Doe dem. Counsell 
 v. Caperton, 9 Car. & P. (38 E. C. L. R.) 112. In the Crawford and Lindsay 
 Peerage case, 2 H. of L. Cases 547, copies of the Rotuli Scoitje, printed by the 
 Record Commissioners, were rejected, because it was not shown that the original 
 i"oll was not extant. 
 
 P2 Pri. 299; supra, note [i). So in Williams v. Wilcox, 8 A. & E. (35 E. 
 C. L. R.) 314, a copy of a grant in an old chartulary was admitted as secondary 
 evidence.
 
 549 PRIVATE DOCUMENTS. 
 
 under the circumstances came from the proper repository, it was held, 
 r*'"f;n'i ^^^^ *^*' ^-fforded sufficient secondary evidence to prove the 
 two ii!struments. The court said the 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, 
 because it was important for the interests of the abbey that the in- 
 struments should be preserved. 
 
 Where it was proved that the house of a party in whose custody 
 marriage articles ought to have been, had been occupied and pillaged 
 by rebels and foreign troops, and that after diligent search amongst 
 his papers they could not be found, it was held that a recital of them, 
 in a case submitted to counsel at the time, and charged for and en- 
 tered as paid by the family attorney, was admissible as secondary 
 evidence/ 
 
 Where the plaintiff, on being called upon to produce a grant pro- 
 duced an ancient parchment, without either signatures or seals, it 
 was held to have been rightly received, as a document coming out of 
 the hands of the opposite party, and not as a deed, nor as evidence 
 of one.^ 
 
 Where an assignment had been lost before it had been entered of 
 record, pursuant to the 6 Geo. IV., c. 16, s. 96, it was held that 
 secondary evidence of it was admissible.' 
 
 In proving an examined copy, it is sufficient to prove that whilst 
 one read the original, the other read the copy." 
 
 If the deed or other instrument be in the possession of the adver- 
 sary in a civil, or of the defendant in a criminal case, proof must 
 be »iven of that fact f and it must next be shown that the adverse 
 r*f;c:-i-i party, or his attorney, has *had notice to produce it.^ It 
 has been said that this rule applies, even where there is evi- 
 
 ■■ Lord Lorton v. Gore, 1 Dow, N. S. 190. 
 
 ^ Tijrwhii V. Wynne, 2 B. & Aid. ^)o4. It was held to be entitled to but little 
 credit, since the acts of enjoyment had been inconsistent with it. 
 
 ' Giles V. Smith, 1 C, ^I. & R. 462. 
 
 " liolfe V. Dart, 2 Taunt. 52. But see Slane Peerage case, 5 CI. & F. 24, aiite, 
 p. 271. It mi^ht be admissible as secondary evidence in a case where an exam- 
 ined copy is not required. 
 
 ^ Where it was sworn that the original lease had been stolen from the plain- 
 tiff by a party, at the instigation of the defendant, who either had it, or knew 
 where it was, and there was no denial on tlic \)ix\-t of the defendant, the Court 
 made a rule a])solute, in order to enable the plaintitf to give secondary evidence 
 of its contents : Doe dem. Pearson v. Pies, 7 Bing. (20 E. C. L. R.) 724. 
 
 y R. V. StoL-e Goldiny, 1 B. & Aid. 173; Knight v. Marquis of WaterJ'urd, 4 
 Y. & C. 284. In trover for goods, against a carrier who set up a general lien,
 
 HOW PROVED BY SECONDAllY EVIDENCE. 551 
 
 dence to prove the destruction of the instrument.^ Proof of the 
 delivery of a paper to the servant of the defendant without calling 
 the servant, was in a criminal case held to be insufficient proof of the 
 possession of the paper by the defendant.* But proof that a deed 
 came into the hands of the defendant's brother, under whom the de- 
 fendant claimed, was held to warrant the reading of a copy,'' even 
 although the defendant had sworn, in an answer in Chancery, that 
 he had not got the original. Proof of this kind must depend much 
 upon the circumstances of the particular case." The fact of the ad- 
 versary's possession may be proved by circumstances, and for this 
 purpose the particular course of duty and office is admissible to raise 
 a presumption of such possession.'* Presumptive evidence having 
 been given *that the defendant had obtained his certificate r*^f;9-i 
 under a commission of bankrupt, it was presumed that it was 
 in the defendant's possession.® So an appointment of an officer as 
 an overseer is presumed to be in the possession of the officer.^ 
 
 evidence offered by the defendant, that bills delivered by him to the plaintiff 
 contained a statement that all goods carried by the defendant were to be subject 
 to such lien, was rejected without a notice to produce the bills: Jones v. Tarle- 
 ton, 9 M. & W. 675 ; Lawrence v. Clarke, 14 M. & W. 250. Even in penal 
 actions and criminal proceedings, notice to the defendant's attorney is suffi- 
 cient: Cates V. Winter, 3 T. R. 306 ; B. v. Watson, 2 Stark. C. (3 E. C. L. R.) 
 129. 
 
 ^ Doe V. Morris, 3 Ad. & El. (30 E. C. L. R.) 46. This is conBned to the case 
 of destruction after it came into the adversary's possession, for he might dis- 
 pute its destruction : tamen quaere, Foster v. Pointer, post, note [u). 
 
 ^ R. V. Pearce, Peake's C. 75; Gordon'' s case, 1 Leach 300. 
 
 '' Pritchard v. Symonds, Hereford Ass. 1744 ; B. N. P. 254. 
 
 <= Baldney v. Ritchie, 1 Stark. C. (2 E. C. L. R.) 338. 
 
 * See Hetherington v. Kemp, 4 Camp. 193; Hagedorn v. Reid, 3 Camp. 370; 
 Toosey v. Williams, Moo. & M. (22 E. C. L. R.) 129. The defendant's clerk 
 produced a letter-book containing the copy of a letter in his handwriting; the 
 course was, for the clerk to copy all such letters (to India), which, when copied, 
 were delivered to the defendant to be sealed, and then carried by the witness or 
 another clerk to the India-house ; there was no particular place of deposit in 
 the office for the letters to be so carried ; both the clerks swore that they always 
 carried the letters delivered to them for that purpose, but neither of them had 
 any recollection of the particular letter. Lord Tenterden, with great reluctance, 
 rejected the evidence, observing, that the practice differed from that in most 
 counting-houses ; and that, if the duty of the clerks had been to see the letters 
 so copied carried to the post-office, it might have been done (see Rohb v. Starkey, 
 2 Car. & K. (61 E. C. L. R.) 143 ; Eastern U. R. Company v. Symonds, 5 Ex. 
 237), but that there was something else to be done, and that by the defendant. 
 
 * Henry v. Leigh, 3 Camp. C. 502. 
 
 'An indenture of apprenticeship, made 1797, having been signed only by one
 
 552 PRIVATE DOCUMENTS, 
 
 Proof that a letter was sent to a party purporting to enclose a bill, 
 and that a bill answering the description in the letter was shortly 
 after in the possession of that party, was held to be presumptive evi- 
 dence that he received both letter and bill>' 
 
 Where an apprentice deed is cancelled by the master on payment 
 of money, he is bound to deliver the indenture up to the apprentice.'' 
 r*-rQi Documents relating to an estate *are presumed to have been 
 delivered to an assignee.' The fact of a letter having been 
 sent to a deceased party several years before her death, was held to 
 be insufficient to found a presumption that it was in the possession of 
 her executrix.-" 
 
 A party after notice to produce a document, cannot get rid of it 
 by transferring the possession of the instrument to another person 
 before the trial, for this is in fraudem legis.^ 
 
 In some instances it is sufficient to show that the instrument is in 
 the actual possession of one who is in privity with a party, for then 
 the possession of the one is in law the possession of the other. 
 Where the action was brought against the owner for goods supplied 
 for the use of the vessel, and proof was given that the order for the 
 
 overseer of the appellant parish, the respondent parish, to show that only one 
 had been appointed in that year, called upon the appellants to produce the 
 original appointment (having given them notice to produce all books and writ- 
 ings relating thereto) ; one book only was produced, and that was not for the 
 year 1797. Held, that the respondents not having taken any means to procure 
 the testimony of the overseer himself (who must be presumed to have the 
 custody of the original appointment), were not entitled to give secondary evi- 
 dence of its contents : Bex v. Leicester, 1 B. & Aid. 173. 
 
 8 Kieran v. Johnson, 1 Stark. C. (2 E. C. L. R.) 109. 
 
 " B. v. Rarberton, 1 T. R. ill. 
 
 • Goodfitle v. Saville, 16" East 91, n. ; Doe clem. Richards v. Lewis, 20 L. J., 
 C. P. 171. 
 
 J Drevj v. Durnborough, 2 Car. & P. (12 E. C. L. R.) 198. But this case does 
 not seem to have been decided with a view to the question of the admissibility 
 of secondary evidence. 
 
 '' Knicjht V. Martin, 1 Gow (5 E. C. L. R.) 26; and see Leeds v. CooJc, 4 Esp. 
 C. 256, and infra, p. 562. But where notice had been given to the party, and 
 upon a second trial was served upon the attorney, who informed the party serv- 
 ing it that the instrument had been assigned to some one whom he did not 
 know, without his privity or knowledge, it was held that the service was in- 
 sufficient without further inquiry from the defendant: Ibid. Where a party 
 had notice to produce an instrument, and did not say he had not got it, although 
 in fact he had delivered it at the Stamp-office, the adversary was permitted 
 to give secondary evidence: Sinclair v. Stephenson, 1 C. & P. (12 E. C. L. R) 
 582. And see Doe dem. Pearson v. Ities, 7 Ring. (20 E. C. L. R.) 724; supra, 
 note (x).
 
 WHEN IN POSSESSION OF ADVERSARY. 553 
 
 goods was in possession of the captain, it was held that the proof of 
 possession was sufficient.' So, for this purpose, possession by the 
 under-sheriff is possession by the sheriff.™ Possession by tlie banker 
 of the party is possession by the latter." 
 
 A joint notice having been given to two executors, one r*rr4-| 
 *of whom has suffered judgment by default, secondary evi- 
 dence is admissible of a receipt proved to be in the possession of the 
 latter." 
 
 This rule is inapplicable where the party to the suit has not a 
 right to retain as well as inspect the document, as where it is not in 
 the possession of a party in the cause, but of a stakeholder, between 
 him and a third person ;p nor does it apply where the party to the 
 suit justifies under another who has possession of the paper in an in- 
 dependent character. •! But the fact that a judge has made an order 
 on the plaintiff, to admit a certain document to be a true copy of a 
 letter written by him to the defendant, will not enable the latter to 
 give that copy in evidence, without proof that the plaintiff has the 
 original in his possession, and has had notice to produce it." 
 
 The question whether possession of a document by the opposite 
 party is sufficiently established is solely for the judge, and that 
 party may interpose evidence upon that question to show that he 
 has it not, which will not entitle the other side to any reply to he 
 jury.' 
 
 ' Baldney v. Ritchie, 1 Stark. C. (2 E. C. L. R.) 338. 
 
 ■" Taplin v. Attij, Ry. & Moo. (21 E. U. L. R.) 164 ; 3 Ring. (11 E. C. L. R.) 
 164. 
 
 - Partridge v. Coates, Ry. & M. (21 E. C. L. R.) 156. And see Sinclair v. 
 Stephenson, 1 C. & P. (12 E. C. L. R.) 582; Burton v. Payne, 2 C. & P. (12 E. 
 C. L. R.) 520. 
 
 » Beckwith v. Bonner, 6 C. & P. (25 E. C. L. R.) 682. 
 
 P Parry v. May, 1 M. & Rob. 279. 
 
 ■J Evans v. Sweet, R. & M. (21 E. C. L. R.) 83 ; and see Pritchard v. Symonds, 
 B. N. P. 254 ; E. V. Pearce, Peake's C. 76. Where a party in possession of 
 books, &c., belonging to a committee, of which he had been a member, had them 
 delivered to him as a member of another society, which had subsequently occu- 
 pied the same office ; held that he could not be deemed to be so connected with 
 the former as to let in secondary evidence of the contents, after notice to the 
 defendants, his former coadjutors, he holding them in a new character [per Tin- 
 dall, C. J. ; Whifford v. Tutin, 6 C. & P. (25 E. C. L. R.) 228 ; s. c, 10 Ring. 
 (25 E. C. L. R.) 395. 
 
 ■• Sharpe v. Lamb, 11 A. & E. (39 E. C. L. R.) 802. 
 
 » Harvey v. Mitchell, 2 M. & Rob. 366 ; Smith v. Sleap, 1 Car. & K. (47 E. C. 
 L. R.) 46. As to what is sufficient evidence, see Robb v. Starkey, 2 Car. & K. 
 (61 E. C. L. R.) 143. Such evidence, too, it would appear, being for the judge,
 
 554 PRIVATE DOCUMENTS. 
 
 The instrument having been proved to be in the possession of 
 the adversary, the next step is to prove the notice to produce it.^ 
 
 ought to be given on the voir dire; Cleave v. Jones, Hereford Sumra. Ass. 1851, 
 coram Erie, J. 
 
 ' A refusal to produce books or papers upon notice given does not warrant the 
 presumption that if produced they would show the facts to be as alleged by the 
 party giving notice ; the only effect is, that parol evidence of their contents may 
 be given, and if such secondary evidence be imperfect, vague and uncertain as to 
 dates, suras, &c., every presumption will be against the party who might remove 
 all doubts by producing the higher evidence : Life and Fire Ins. Co. v. Mechanics' 
 Lis. Co., 7 Wend. 31. Parol evidence of the contents of a paper required to be 
 produced on the trial of a cause cannot be given until its genuineness be estab- 
 lished by proof, but if a paper is produced on notice, such proof is unnecessary : 
 McPherson v. Rathbone, 7 Wend. 216. Where notice before suit brought is the 
 foundation of action, parol evidence of its contents cannot be given until all proper 
 measures have been fruitlessly taken to produce it ; but when the notice relates 
 merely to some collateral fact, parol evidence of its contents is admissible : 
 McFadden v. Kingsbury, 11 Wend. 677. Where the plaintiff gave notice to the 
 defendant to produce on the trial an original paper in his possession, a copy of 
 which was annexed to the notice, and it appeared by the testimony of witnesses 
 that the supposed copy materially differed in one particular from the original : 
 it was held, that notwithstanding such differences the notice was sufficient to 
 entitle the plaintiff to give parol evidence of the original, it being manifest from 
 all the circumstances that the defendant must have understood what paper was 
 intended to be referred to in the notice: Bogart v. Brown, 5 Pick. 18. But 
 such copy annexed to the notice cannot be used in evidence by the party having 
 the original in possession ; and where a party refuses to produce an original 
 paper in his possession, and thereupon the other party is permitted to give 
 parol evidence of its contents, the party who has the possession of the paper 
 will not be permitted to contradict such evidence, but he will be permitted to 
 prove that no such paper ever existed, for the purpose of rebutting parol evi- 
 dence of its contents: Ibid. He who has not and is not entitled to the posses- 
 sion of a deed or public paper cannot be compelled to produce it : Denton v. 
 Hill, 4 Ilayw. 73. Nor can a copy be given in evidence where the opposite 
 party has produced the original under notice : Dean v. Carnahan, 7 Mart. N. 
 S. 2.58. A party wishing to avail himself in evidence of a paper in the posses- 
 sion of the attorney of his adversary must give notice to produce it ; he cannot 
 have the benefit of the evidence by subpoenaing the attorney to produce it or 
 compelling him to testify, if it was delivered to him by his client as supporting 
 the action or defence: McPherson v. Rathbone, 7 Wend. 216 ; Jackson v. Denni- 
 son, 4 Wend. 558 ; Lagen v. Patterson, 1 Blackf. 328. A notice to the attorney 
 of a defendant to produce on the trial a certain letter Svritten by the plaintiff to 
 the defendant concerning an execution which was produced on a former trial in 
 the same cause and " all other papers in your custody or power relating to the 
 matters in controvcnsy in this cause," was held to be sufficiently explicit to 
 apprise the attorney that the execution referred to in such letter was one of the 
 papers which he was called upon and expected to produce, especially when it 
 was shown that on such former trial the letter. and execution had been pro-
 
 NOTICE TO PRODUCE. 555 
 
 It is sufficient to prove service of notice to *produce a r*r-n 
 
 . . L 5'^'^J 
 
 deed or other instrument either on the party or his attor- 
 ney, in criminal as well as civil cases. "^ This must appear to be a 
 
 ^ Attorney- General v. Le Merchant^ 2 T. R. 201; R. v. Watson, Ibid. 199; 
 Gates V. Winter, 3 T. R. 306 ; Trist v. Johnson, 1 M. & Rob. 259 ; R. v. Eli- 
 combe, Ibid. 260. The notice, it seems, ought to be served on the attorney in a 
 cause, if there be one : per Gurncy, B., Houseman v. Roberts, 5 C. & P. (24 E. 
 C. L. R.) 394. Where the attorney has been chan(i;ed, a notice served on the 
 first attorney, whilst he was attorney, is sufficient: Doe v. Martin, 1 M. & Rob. 
 242. It is to be presumed that a party who goes abroad leaves with his 
 attorney, who is to conduct the trial, all necessary papers : Bryan v. Wagstqff^ 
 R. & M. (21 E. C. L. R.) 327 ; and perhaps this rule ought to be extended to 
 cases of parties resident in England, where the document is necessarily con- 
 nected with the cause, or the transaction in question : in Afflalo v. Fourdrinier, 
 M. & M. (22 E. C. L. R.) 335 ; e. g., the writ : Gibbons v. Powell, 9 Car. & P. 
 (38 E. C. L. R.) 634. But if the document be only accidentally connected with 
 it, no such presumption is made in such a case : Atkins v. Meredith, 4 Dowl. 
 65S ; Lawrence v. Clark, 14 M. & W. 250 ; Byrne v. Harvey, 2 M. & Rob. 89 ; 
 Holt V. Miers, 9 Car. & P. (38 E. C. L. R.) 191. It is for the judge to determine 
 whether the papers required to be produced were so necessarily connected with 
 the cause as to render it probable that they would be delivered to the attorney : 
 per Lord Tenterden, in Vice v. Lady Anson, M, & M. (22 E. C. L. R.) 97. Thus 
 
 duced by the defendant's attorney himself, who must have known that it was 
 the principal paper wanted : Ibid. Where the pleadings in the case gives notice 
 to a party to be prepared to produce a particular instrument at the trial, formal 
 notice is not necessary: Hammond v. Hopping, 13 Wend. 505; Utica Bank v. 
 Hillard, 5 Cow. 419. A paper produced on notice to the adverse party must 
 be proved by him who offers it in like manner as if he had himself produced it, 
 unless the person producing it be a party to the instrument or claim a benefi- 
 cial interest under it: Rhoades v. *SeZm, 4 Wash, C. C. R. 715; Williams v. 
 Keyscr, 11 Fla. 234. When a party calls for the account of his opponent, and 
 on its being produced reads it to the jury, it may generally be considered as 
 making it to some extent evidence ; but when suit is brought on what is alleged 
 to be the balance of an account which is disputed, or where the defendant 
 alleges that an account which he did not originally object to from ignorance or 
 mistake, is erroneous, and calls for it expressly to disprove some of the items 
 and the amount charged on each of them, and gives evidence to this effect, the 
 f\ict of his calling for it to disprove it, is not any evidence of its correctness : 
 Gracy v. Baily, 16 S. &. R. 126. Where notice has been given to a party to 
 produce books or papers on the trial of the cause, and he is sworn, and states 
 that the books or papers required are not in his possession, he cannot be ex- 
 amined by the counsel generally as to the merits or gist of the cause. The case 
 does not resemble in this respect that of a bill of discovery in chancery : Wood 
 V. Connell, 2 Whart. 542. G. 
 
 As to notice to produce : Jefferson v. Conway, 5 Ilarring. 16 ; Cooper v. Cran- 
 berry, 33 Miss. 117; Dean v. Border, 15 Tex. 298; Farnsworth v. Sharp, 5 
 Sneed 615 ; Cody v. Hough, 20 111. 43.
 
 556 PRIVATE DOCUMENTS. 
 
 [*556] reasonable notice." A notice to *produce a written instru- 
 
 in an action aijainst partners, the defence was that the bill had been accepted 
 by one for his private debt, with the knowledfre of the plaintiff. Held, that 
 other bills accepted by that partner, and paid, were not so connected with the 
 subject of the trial as to render a notice on the attorney to produce them (too 
 late for him to obtain them for his client) sufficient to let in secondary evidence 
 of them : Afflago v. Fourdrinier, M. & M. (2'2 E. C. L. R.) 334 : 6 Bing. (19 E. 
 C. L. 11.) 306. 
 
 ° With respect to documents which may be presumed to be in England, it has 
 been held, where the trial is to take place at the assizes, if the party and his 
 attorney, or either of them, live in another town, a notice for the assizes should 
 in general be served before the commission-day : Trist v. Johnson, 1 M. & Rob. 
 259. Upon an indictment for arson, when the commission-day was on the Loth, 
 notice was served on the prisoner in gaol on the 18th, and the trial was on the 
 20th, the notice was held to be too late : R. v. Ulicombe, 5 C. & P. (24 E. C. L. 
 R.) 522. Notice to a prisoner to produce a deed after the commencement of the 
 assizes, at which he was tried for felony, was held to be insufficient : B. v. Ha- 
 worth, York Lent Assizes 1830, cor. Parke, J. Notice by the plaintiff was served 
 on Saturday, in Essex, to produce a deed on a trial at the assizes which com- 
 menced on the following Monday ; the attorney went to London and fetched the 
 deed ; a notice was served on the Monday evening to produce another deed ; the 
 attorney offered to procure it, if the plaintiff would pay the expense ; no offer 
 of payment was made. The trial was on Thursday ; it was held, that the plain- 
 tiff was not entitled to give secondary evidence of the latter deed [Doe v. Sjntfi/, 
 3 B. & Ab. (23 E. C. L. R.) 182) ; for the defendant was not bound to permit 
 the deed to be sent by coach, the plaintiff refusing to pay for a special messen- 
 ger. Service on the attorney at the assize town on Monday evening to procure 
 a book which was both actually and presumably at his residence, nineteen miles 
 off, the cause being tried on Wednesday, is not sufficient : Hargist v. Fothergill, 
 
 5 C, & P. (24 E. C. L. R.) 303. So where it was served on the defendant's 
 attorney at his residence, twenty miles from the place of trial, at eight in the . 
 evening before the trial, and the defendant resided in the same town as the 
 attorney, but was not at home till twelve o'clock : Howard v. Williams, 9 M. 
 
 6 W, 728. A. and his attorney lived, the one fourteen, and the other twenty 
 miles, from the assize town. At noon on the commission-day the attorney was 
 served at the assize town with notice to produce a paper. The trial came on 
 next morning. In fact the paper was then at the assize town, in the possession 
 of M., a former attorney for the defendant, who had a lien on it as such at- 
 torney, and the fact that he had it was mentioned in the notice to produce. It 
 was held that the secondary evidence might be received : E. v. Haiolcins, 2 C. 
 & K. (61 E. C. L. R.) 823. In an action on a bond tried at the Flintshire assizes, 
 the commission-day was the 27th ; the cause was tried on the 29th. At 10 a. m., 
 on the 2.Stli, notice to produce the bond was served on defendant's attorney at 
 Mold, in the defendant's presence. The attorney resided in London. In fiict 
 the bon<l was in tlie possession of W.,\i\w was the defendant's general attorney, 
 and who had undertaken to produce it, if bound to do so. Before the assizes 
 he had sent the bond to the defendant's attorney in the action, in London, for 
 inspection and admission under a judge's order, where the plaintiffs attorney
 
 NOTICE TO PRODUCE. 557 
 
 ment is usually in writing, but it *may, it seems, be by [*557] 
 
 had copied it. At the trial W. had the bond in court, but objected to produce 
 it on the ground of privilefre, and the objection was allowed. Held, that the 
 notice to produce was sufiicient, and that the copy was admissible : Lloi/d v. 
 Mostyn, 10 M. & W. 478. The commission-day being on Thursday, notice was 
 served on the plaintiflTs attorney, who, as well as the plaintiff, lived in the assize 
 town, to produce some bills, and the cause was tried on the Monday. This was 
 held sufficient: Firkin v. Edwards, 9 Car. & P. (38 E. C. L. R.) 478. 
 
 With respect to town causes, service of notice upon the wife of the attorney 
 of the defendant, late in the evening of the night before the trial in London, 
 was held to be insufficient : Doe v. Guy, 1 Stark. C. (2 E. C. L. R.) 283. So was 
 the service at seven in the evening of the day before the trial, at the office of the 
 attorney, who had then left his office : Sims v. Kitchen, 5 Esp. C. 46 ; s. p. 
 Atkinson v. Carter, 2 Ch. 403 ; Holt v. Miers, 9 Car. & P. (38 E. C. L.R.) 191. 
 But in Leaf v. Butt, 1 Car. & M. (41 E. C. L. R.) 451, a notice served on the 
 defendant's attorney in the Strand, at seven o'clock the evening before the trial, 
 to produce a letter applying for payment of the debt, addressed to the defend- 
 ant, who lived in the Edgeware Road, was held sufficient by Alderson, B., 
 after consulting the other judges; and so in Meyrickv. Woods, Ibid. 452, a 
 notice to produce a letter demanding compensation, served on the defendant in 
 Duke street, Manchester Square, and his attorney in Seymour street, Bryanston 
 Square, at half-past six on the evening before the trial, was held by the same 
 learned judge sufficient. And even though the case had been part heard and 
 adjourned till the next day at 10 o'clock a. m., a notice served on the plaintiff's 
 attorney, before nine o'clock in the evening, to produce a letter from the defend- 
 ant to the plaintiff, was held to be in time : Sturm v. Jaffier, 2 Car. & K. (61 
 E. C. L. R.) 442. So, in Gibbons v. Powell, 9 Car. & P.' (38 E. C. L. R.) 634, 
 a notice served on defendant's attorney at half-past seven the night before to 
 produce the writ. Where, however, under the circumstances, it cannot be pre- 
 sumed that the document (e. g. a tradesman's book) is in the possession of the 
 attorney, notice to the attorney on the preceding evening is insufficient, although 
 the client reside in London : Atkins v. Meredith, 4 Dowl. P. C. 639. So, in an 
 action on a bill of exchange, to which there was a plea of fraud and covin, 
 notice by the defendant to produce the bill, left in the letter-bos of the office of 
 the plaintiff's attorney at half-past eight in the evening, before the cause was 
 tried, the office and the plaintiff being both in London, was held to be too late : 
 Lawrence v. Clarke, 14 Mi & W. 250. It was also held that the plaintiff was 
 not bound to pi-oduce it without notice : Ibid. So, where notice was given to 
 produce a letter not obviously connected with the cause ; and the service was 
 too late to enable the attornej' to communicate with his client, secondary evi- 
 dence was rejected : Byrne v. Harvey, 2 M. & Rob. 89. If the document be 
 abroad, notice should be given in sufficient time to enable the party to procure 
 it ; thus, a notice served on a partner in a firm carrying on business in India, 
 who had no place of business in London, to produce a letter relating to the 
 partnership business, served in London on 3d February, the trial being at the 
 Spring Assizes, was held insufficient to entitle a party to produce secondary 
 evidence : Ehrensperger v. Anderson, 3 Ex. 148. But in Drabble v. Donner, 
 Ry. & M. (21 E. C. L. R.) 47, a notice to produce letters written to the defend-
 
 558 PRIVATE DOCUMENTS. 
 
 r*5581 P^^'*^^''' ^"^ ^^^^ '^^ maybe proved *bj any witness who 
 heard the notice given/ The usual course is, as well in the 
 case of notices to produce documents upon the trial, as in giving 
 notice to quit, or notice of the dishonor of a bill of exchange, to 
 make out duplicate notices, and the witness who serves one compares 
 them with each other, and upon the trial proves their correspondence, 
 and the delivery of one of them to the attorney of the opposite party.'' 
 It is a general rule that proof of notice to produce a notice is not 
 requisite; if it were, the necessity would extend in infinitum, as 
 each additional notice to produce the preceding would require the 
 same proof.'' But the case is different, where the notice has been 
 given to a third person, and would not therefore be in the possession 
 r*5591 °^ ^^^ ^party,** or where the notice has been given to the 
 party, but the nature of the issue is not such that the de- 
 fendant must know that the plaintiff will give secondary evidence, 
 unless the defendant produces it.° 
 
 ant (a foreigner) ten years before, at his residence abroad, served on the 10th, 
 for the trial on the 14th, was held sufficient; the defendant having come to Eng- 
 land eight months before, where he had remained ever since. So in Sturge v. 
 Buchanan, 10 Ad. & E. (37 E. C. L. R.) 598, a notice four days before the trial 
 to produce letters written by the defendant to his partner in Australia, was held 
 good, long-pending litigation between the parties having rendered it probable 
 that they must have been transmitted to this country. A statement, however, 
 by the party served, that the paper is not in existence, does away with all 
 objection as to insufficient notice : Foster v. Pointer, 9 Car. & P. (38 E. C. L. R.) 
 718. 
 
 ^ Smith V. Young, 1 Camp. 440. If both a written and oral notice have been 
 given, proof of either will suffice : Ibid. 
 
 y Sturtees v. Hubbard, 4 Esp. C. 203. 
 
 == Jory V. Orchard, 2 B. & P. 41. See Vol. II., tit. Notice. Where a great 
 number of impressions are printed at the same time, they are in the nature of 
 duplicate originals. See li. v. Watson, 2 Stark. C. (3 E. C. L. R.) 129 ; where 
 it was held that a number of copies of a placard having been printed by order 
 of the prisoner, who had taken away twenty-five of them from the printers, one 
 of the remainder might be read without giving notice to the prisoner to produce 
 the twenty-five. And see R. v. Pearce, Peake's C. 75. 
 
 » Kine v. Beaumont, 3 B. & B. (7 E. C. L. R.) 288; Colling v. Treweek, 6 B. 
 & C. (13 E. C. L. R.) 398 ; Swaine v. Leioes, 2 C, M. & R. 261 ; Doe dem. Flem- 
 ing v. Somerton, 7 Q. B. (53 E. C. L. R.) 58. See Vol. II., tit. Notice. 
 
 " Grove v. Ware, 2 Stark. C. (3 E. C. L. R.) 714 ; Robinson v. Brown, 3 C. B. 
 (54 E. C. L. R.) 754. 
 
 " Ibid. ; Lanauze v. Palmer, M. & M. (22 E. C. L. R.) 31. In this case the 
 plaintiff in an action on a bill sought to give evidence of notices of dishonor of 
 other bills, sent to the defendant in order to show he was aware of their ex- 
 istence, and that the endorsement of the bill in question, which was similarly 
 endorsed, was not u forgery.
 
 NOTICE TO PRODUCE. 559 
 
 The notice will be insufficient if it be entitled in a Avrono; cause. 
 In an action by the plaintiffs A. and B., assignees of C. (a bank- 
 rupt) V. U., a notice to produce a document was entitled A. and B. 
 assignees of C. and D. v. £., and this was held to be insufficient, 
 although A. and B. were in fact the assifirnees of C. and I), under a 
 joint commission.'^ But if, though inaccurate, it could not have been 
 misunderstood, it will be sufficient.' The notice should also afford 
 sufficient information as to what is really required, and not be too 
 vague and "jencral.*^ 
 
 * Where a document is produced in consequence of notice, r*r:/:>A-] 
 and part is read, the party who produces it is, in general, en- 
 
 ^ Harvey and others v. Morgan, 2 Stark. C. (3 E. C. L. R.) 17 ; cor. Lord 
 Ellenborough ; and afterwards by the Court of King's Bench, on motion for a 
 new trial, on the ground that the notice was sufficient, and that secondary evi- 
 dence ought to have been admitted. 
 
 ^ Bittleston v. Cooper, 14 M. & AV. 399 ; Lawrence v. Clarke, 14 M. & W. 250, 
 where it was entitled in the wrong court. 
 
 ^ In an action for work and labor done as a singer, notice had been given to 
 the defendant to produce all letters, papers, books, receipts, vouchers, memo- 
 randums, and all other documents written by the plaintifi' to the defendant, or 
 by the defendant to the plaintiff, or otherwise ; and it was held to be sufficient 
 to Avarrant parol evidence of a memorandum, signed by the defendant and de- 
 livered to a witness, and afterwards re-delivered to the defendant, stating the 
 terms of engagement : Jones v. Hilton, Lancaster Spring Ass. 1825, cor, Holroyd, 
 J, Notice to produce "letters and copies of letters, also all books relating to 
 this cause," was held to be too general, and insufficient to let in secondary evi- 
 dence of the contents of letters: Jones v. Edwards, 1 M'Clel. & Y. 139. So a 
 notice to produce ''all letters, papers and documents touching and concerning 
 the bill of exchange mentioned in the declaration," is too general, not pointing 
 out the particular letter required: France v. Lucy, R. & M. (21 E. C. L. R.) 341. 
 But a general notice to produce all letters written by the said plaintiff' to the 
 said defendant relating to the matter in dispute, was held sufficient to let in 
 secondary evidence of a particular letter, although the date was not specified, 
 because the notice did specify the names of the parties by and to whom the let- 
 ters were addressed : Jacob v. Lee, 2 M. & Rob. 33. Notice served by the de- 
 fendant on the plaintiff to produce "all letters written to and received by you 
 between the years 1837 and 1841 from the defendant, or any person on his 
 behalf," was held sufficient without specifying the dates of particular letters: 
 Morris v. Hannen, Car. & M. (41 E. C. L. R.) 29; Morris v. Hauser, 2 M. & 
 Rob. 392, s. c. In Rogers v. distance, 2 M. & Rob. 179, where a number of 
 small accounts of the work had been delivered from time to time, the court held 
 that a notice to produce "all books, extracts, letters, accounts and copies of 
 letters and accounts, papers and writings, relating to the matters in question in 
 the cause," was sufficient to let in secondary evidence of one of the accounts, 
 observing that much must depend on the particular circumstances of each case ; 
 and the question was whether the party must have been aware that this account 
 was required.
 
 560 PRIVATE DOCUxMENTS. 
 
 titled to have the whole read ;^ but where notice was given to produce 
 a letter which expressed that it covered several enclosures, but without 
 referring to them particularly, it was held that the party producing 
 the letter was not entitled to have the enclosures read.'' 
 
 It is to be observed, that notice to produce a document in the 
 hands of an adversary does not make it evidence for hini, unless the 
 instrument be called for,' although the omission to call for it after 
 r^rp-,-1 notice may raise a presumption unfavorable to the party 
 who gave the notice.'' *But if the party giving notice call 
 for it, and inspect it, he makes it evidence, although he does not 
 read it.' 
 
 It is also a general rule that a defendant, although he has given 
 notice to his adversary to produce a particular document, cannot in- 
 sist upon the production, or give parol evidence of the contents, until 
 the plaintiff's case has been closed."" 
 
 The reason for giving notice, and the necessity for giving it, cease 
 when from the very nature of the suit or prosecution, tlie party must 
 know that he is charged with the possession of the instrument. Con- 
 sequently, in an action of trover for a bond or note, parol evidence 
 of the instrument may be given, although no previous notice to pro- 
 
 8 Infra, pp. 579, 580. But see ante, p. 235. 
 
 ^ Johnson v. Gilson, 4 Esp. C. 21 ; Stnrge v. Buchanan, 10 Ad. & E. (37 E. C. 
 L. R.) 598. And where a shop-book was produced, in pursuance of notice, it 
 was held that the party who produced it was not entitled to read other entries 
 in the book, which had no reference to those which had been read by the adver- 
 sary : Whitfield V. Aland, 2 Car. & K. (61 E. C. L. R.) 1015. 
 
 ' Sayer v. Kitchen, 1 Esp. C. 210. Nor even although called for, unless it be 
 inspected or otherwise used. See infra. 
 
 * Per Lord Kenyon, Ibid. In general, however, there is little to presume in 
 such a case ; it is usual in practice to give a general notice to produce books, &c., 
 but it would be impolitic to call for them, unless something were known as to 
 their contents. 
 
 ' Wharam v. Routkdfje, 5 Esp. C. 235 ; Calvert v. Flower, 7 C. & P. (32 E. C. 
 L. R.) 386. But see Wilson v. Bowie, 1 C. & P. (12 E. C. L. R.) 8. 
 
 ^ Graham v. Dyster, 2 Stark. C. (3 E. C. L. R.) 23 ; Sideways v. Dyson, Ibid. 
 49. On the cross-examination of one of the plaintiff's witnesses, the defendant's 
 counsel refjuired the production of the plaintiff's books, notice having been 
 given for that purpose. The plaintiff refused to produce them in that .stage of 
 the liusincss, before the defendant liad gone into his case. The defendant's 
 counsel then proposed to give parol evidence of the entries ; but Lord Ellen- 
 borough said that, in strictness, the evidence could not be anticipated, although 
 it was rigorous to insist upon the rule, and a close adherence to it might be 
 productive of inconvenience.
 
 NOTICE TO PRODUCE — WHEN UNNECESSARY. 562 
 
 duce it be proved ;"- and in a prosecution for stealing *sucli r:^r(*c)-] 
 an instrument, tbe same rule applies." So also in trials for 
 treason, where the prisoner has been proved to be in possession of 
 the original document containing the treasonable matter.^ In an 
 action for breach of promise of marriage, it appeared that a witness 
 who had been served with a subpoena duces tecum lo produce a letter 
 written by the plaintiff to the witness, had, since the commencement 
 of the action, delivered it to the plaintiff; and although no notice 
 had been given to produce it. Lord Ellenborough admitted evidence 
 of the contents, since the document belonged to the witness, and had 
 been subtracted in fraud of the subpoena ; it was therefore admissi- 
 ble as in odium spoliatoris.'^ Where proof had been given that a 
 conspirator in a case of high treason, had procured the possession 
 
 " Scott V. Jones, 4 Taunt. 865; Hoio v. Hall, 14 East 274; Jollei/\. Taylor, 1 
 Camp. 143 ; Butcher v. Jarrait, 3 Bos. & Pull. 143 ; Wood v. Strickland, 2 Mer. 
 461 ; Whitehead v. Scott, 1 M. & Rob. 2 ; Colling v. Treweek, 6 B. & C. (13 E. 
 C. L. R.) 398. But in an action on a check, with a plea that it was won by 
 playinir at an unhiwful game, the defendant cannot give secondary evidence of 
 it without notice to produce it: Bead v. Gamble, 10 Ad. & E. (37 E. C. L. R.) 
 597. A plea to an action by the drawer of a bill against the acceptor, that he 
 accepted in part payment of a debt owing by him to the plaintiff to induce him 
 to prove his debt under a fiat against the defendant, which acceptance in part 
 payment of such debt is denied in the replication, does not give the plaintiff 
 such notice that the bill will be called for as to dispense with notice to produce : 
 Goodered v. Armour, 3 Q. B. (43 E. C. L. R.) 956. Neither does a plea that 
 the defendant's acceptance was obtained by fraud : Laicrencev. Clarke, 14 M. 
 & W. 25U. Where usury is stated to have been committed in discounting the 
 bill upon which the action is brought, and another bill in one undivided trans- 
 action, no parol evidence is admissible as to the contents of the latter, unless 
 notice has been given to produce it: Hattam v. Withers, 1 Esp. C. 259; coram 
 Loi-d Kenyon, C. J., 1795. In equity each party knows previously what 
 evidence has been given, and therefore there is not the same necessity for 
 notice. 
 
 ° li. v. Aickles, 1 Leach C. 391. So on an indictment for forging a bill of 
 exchange, which the prisoner had swallowed : R. v. Sprague, cor. Buller, J., on 
 the Northern circuit, cited by Lord Ellenborough in How v. Hall, 14 East 274 ; 
 Butler's case, 13 How. St. Tr. 1250. 
 
 p Francias case, 15 How. St. Tr. 941. In R. v. Moors, 6 East 419, n., 
 upon an indictment for administering unlawful oaths, a witness swore to the 
 terms of one spoken by the prisoner whilst he held a paper in his hand, and it 
 was held that notice to produce the paper was unnecessary. And so it is 
 generally, without resorting to the principle now under consideration, where 
 evidence is given of what the party has 6aM. And see R.v. Layer, 16 How. 
 St. Tr. 220; R. v. De la Motie, East P. C. 124. The letters in the latter case 
 had been opened at the post-office. 
 
 1 Leeds v. Cook, 4 Esp, C. 256 ; Doe v. Ries, 7 Bing. (20 E. C. L. R.) 724.
 
 562 PRIVATE DOCUMENTS. 
 
 of certain printed placards, it was held that they were duplicate 
 originals, and that one might be read in evidence without notice to 
 f-sjcr^o-i produce the *original.'' Where a party at a public meeting 
 delivered to a person a written paper, as a copy of the re- 
 solutions about to be read, and which corresponded with the resolu- 
 tions so read, it was held to be good evidence to prove the resolu- 
 tions, without previous notice to produce the paper from which the 
 resolutions were read.'' Notice is in general unnecessary, where a 
 duplicate original can be proved.' Proof that the adversary or his 
 attorney has the deed or other instrument in court, was formerly 
 held not to supersede the necessity of notice; for the object of the 
 notice, it was said, was not merely to enable the party to bring the 
 instrument, but also to provide such evidence as the exigency of the 
 case might require to support or impeach the instrument." But in 
 
 ■• E. V. Watson, 2 Stark. C. (3 E. C. L. R.) 129. A copy of a letter taken by 
 a copying machine is not evidence without notice to produce the original : Kodin 
 V. Murray, 3 Camp. 228 ; Holland v. Reeves, 7 C. & Pi (32 E. C. L. R.) 36. 
 Otherwise with notice, the witness producing the copy stating that he worked 
 the machine, although he had not compared it with the original : Simpson v. 
 Thoreton, 2 M. & Rob. 433. 
 
 ■ B. V. Hunt, 3 B. & Aid. (5 E.G. L. R.) 572. 
 
 * See Vol. II., tit. Notice ; Colling v. Treiveek, 6 B. & C. (13 E. C. L. R.) 398; 
 per Bayley, J. ; PMlipson v. Chase, 2 Camp. \\Q, per Lord Ellenborough. The 
 copy of a bill delivered by an attorney to the client is evidence, without notice 
 to produce the original : Anderson v. May, 3 Esp. C. 167. And the Court of 
 C. P. refused a rule for a new trial : 2 Bos. & Pul. 237 ; Colling v. Treweek, 6 
 B. & C. (13 E. C. L. R.) 394. But where no such part has been kept, and no 
 notice has been given, the plaintiff cannot state the items of the bill from his 
 book : Philipson v. Chase, 2 Camp. 110. 
 
 " See Doe v. Grey, 1 Stark. C. (2 E. C. L. R.) 283 ; and Roe v. Harvey, 4 Burr. 
 2484. In debt for i-ent by the assignee of the lessor against the assignee of the 
 lessee, the plaintiff's attorney being called to prove the execution of the deed, 
 having on cross-examination admitted that, after the execution, some other deed 
 had been executed between the original parties, but which he declined producing, 
 though in court, the court expressed their opinion that there having been no 
 notice to produce, parol evidence could not be given of the contents of the deed : 
 Bate V. Kinsey, 1 C, M. & R. 38. So, it has been said, if the document is shown 
 to have been delivered to the adversary, its contents cannot be proved without 
 notice to produce, upon showing it to have been lost or destroyed. Thus, in 
 ejectment, the defendant having admitted the title as heir and proved a will, 
 duly executed, held that the plaintiff, not having given notice to produce, could 
 not ask a witness whether the deceased had not a fortnight after, in the presence 
 of himself and otiiers, signed another paper and declared it to be his last will ; 
 and such latter paper having been traced to the possession of the defendant, the 
 court saiil that secondary evidence could not be given of it without notice to pro-
 
 PROOF OF — FROM ADVERSARY'S POSSESSION. 564 
 
 a recent case it was *held by Pollock, C. B., after consult- r*rpi-| 
 ing the judges in the Exchequer Chamber, that the attorney 
 of the adversary having the instrument in court, and refusing to pro- 
 duce it, secondary evidence might be given of it, though no notice 
 to produce had been served.""^ 
 
 A counterpart, which is not a duplicate original, having been 
 executed by one party only, is admissible against the party who 
 executes it, to prove the execution of the other part which it recites, 
 although no notice has been given to produce the original/ But as 
 
 duce, even though it was proved to have been lost or destroyed : Doe v. Morris, 
 3 Ad. & E. (30 E. C. L. R.) 46. 
 
 "° Dwyer v. Collins, Ex. Sitt. after H. T. 1852. Action on bill, plea, given for 
 a racing bet. No notice had been given to produce the bill, but the plaintiff's 
 attorney was in court, and being called by defendant, refused to produce it : 
 whereupon Pollock, C. B., held that the attorney was compellable to state its 
 contents. 
 
 " Burleigh v. Stibhs, 5 T. R. 465. The declaration alleged that A. B. put him- 
 self apprentice to the defendant by a certain indenture executed, &c.; and it was 
 
 ' Notice to produce is not necessary when the defendant has notice that the 
 plaintiff means to charge him with the possession of the paper, as in trover for 
 a bond : where the party had fraudulently obtained possession of a written in- 
 strument belonging to a third person ; and perhaps when it appears that the 
 writing is in court and the party refuses to produce it: Pickeriny v. Myers, 2 
 Bail. 113; Gray v. Kernahan, 2 Rep. Const. Ct. 65; Comm. v. Messinger, 1 
 Binn. 273 ; Milliken v. Barr, 7 Barr 23 ; Brown v. Ishell, 11 Ala. 1009 ; Edivards 
 \. Bonneau, 1 Sandf. S. Ct. 619; Nealley v. Greenough, 5 Fost. 325; Eosey. 
 Leiois, 10 Mich. 483. A notice given at the bar during the progress of a trial, 
 to produce a paper, is not sufficient unless it appears satisfactorily that the paper 
 is in court at the time, and in possession of the party upon whom demand is 
 made, or if elsewhere that it would be easy of access : Atwell v. Miller, 6 Md. 10. 
 If two letters are written at the same time to the same person, one being the 
 exact counterpart of the other, one being sent to the person addressed and the 
 other retained by the writer, each is an original, and the one retained may be 
 put in evidence by the party who retained it, without notice to the opposite 
 party to produce the other : Hubbard v. Russell, 24 Barb. 404. If the action is 
 on a written contract in possession of the defendant, the plaintiff may give evi- 
 dence of its contents without any notice to produce it : Dana v. Conant, 30 Vt. 
 246; Hamilton v. Bice, 15 Tex. 382; State v. Mayberry, 48 Me. 218. But see 
 Carland v. Cunningham, 1 Wright 228. Notice to produce a notice is unneces- 
 sary : every written notice should be proved by a duplicate original : Morrow v. 
 Cumm., 12 Wright 305. If the paper which the opposite party is called upon to 
 produce is shown to be in a place so remote from that of the trial, that it can- 
 not be produced between the time of the giving of the notice and that of the 
 conclusion of the evidence, the notice will be held insufficient to justify the ad- 
 mission of secondary evidence : Morrison v. Whitsides, 17 Md. 452 ; Barkery. 
 Barker, 14 Wis. 131. 
 34
 
 564 PRIVATE DOCUMENTS. 
 
 against a third person, unless he claims in privity,"^ a counterpart 
 cannot be read in evidence without accounting for the want of the 
 original, or proving it to be in the possession of the party, and that 
 he has had notice to produce it." 
 
 j-^P/ir-. *After proof of notice, the adversary either produces the 
 "" instrument or he does not. If he does produce it, the exe- 
 
 cution must be proved in the usual way, by means of the attesting 
 witness. This is now settled,^ although it was formerly held, that 
 where the deed or other instrument came out of the adversary's 
 possession, no proof of execution was requisite.^' In Gordon v. Sec- 
 retan^^ where the plaintiff in an action on a policy of insurance pro- 
 held that this was proved by the proof of that part of the indenture executed by 
 the defendant, and in which it was recited that^. B. had bound himself appren- 
 tice to him. So, in ejectment, on a clause of re-entry for a forfeiture for non- 
 payment of rent, against an assignee of the lease, proof of the counterpart, exe- 
 cuted by the original tenant, is sufficient evidence of his holding on the same 
 terms : Roe v. Davis, 7 East 363 ; Mayor, &c., of Carlisle v. Blamire, 8 East 
 487 ; and see Pearse v. Morrice, 2 Ad. & E. (29 E. C. L. R.) 84. 
 
 ^ 7 East 363 ; 8 East 487 ; and see 3 Q. B. (43 E. C. L. R.) 622. 
 
 ^ Anon., Salk. 287 ; Anon., 6 Mod. 225 ; per Grose, J., R. v. Middlezoy, 2 T. R. 
 41. But in order to prove that the ancestor of the lessor of the plaintiff had been 
 seised of the land in question, a counterpart of a lease thereof purporting to be 
 made by that ancestor, and appearing to be executed by a party therein named 
 as lessee, and found in the muniment room of the lessor of the plaintiff, was 
 held admissible, although there was no privity between such apparent lessee 
 and the defendant: Doe dem. Egremont v. Pulman, 3 Q. B. (43 E. C. L. R.) 62.'. : 
 Garrett v. Lister, 1 Levinz 25. 
 
 y Gordon v. Scretan, 8 East 548. An endorsement on a deed of feoffment of 
 livery of seisin, as having been made by a deceased person and attested, was 
 produced by the defendant in ejectment for the land. It was held inadmissible, 
 without calling the attesting witness, as the defendant did not claim under it: 
 Doe V. Marquis of Cleceland, 9 B. & C. (17 E. C. L. R.) 869. Where ship's 
 articles came out of the hands of the adverse party upon notice, the subscribing 
 witness must be called ; but in the case of actions by seamen, their contents may 
 be proved without producing them, or notice to produce them : 13 & 14 Vict. c. 
 93, s. 52 ; Johnson v. Lewellen, 6 Esp. C. 101. The general rule extends to 
 agreements not under seal: Whetherston v. Edgingivn, 2 Campb. 94; and see 
 Cooke V. Stocks, Tidd, 9th ed. 487 ; Bateman v. Phillips, 4 Taunt. 157 ; Taylor 
 v. Osborne, cited 4 Taunt. 159-61. 162. The object of the party who means to 
 use the instrument is not material : Carr v. Burdiss, 1 C. M. & R. 782. 
 
 ' R. V. Middlezoy, 2 T. R. 41 ; Doxon v. Haigh, 4 Esp. C. 109. 
 
 » 8 East 584. 
 
 * A paper produced, on notice, by the adverse party, must be proved by him 
 who offers it, in like manner as if he had himself produced it, unless the party 
 producing it be a party to the instrument or claim a beneficial interest under 
 t: Rhoadea v. Selin, 4 Wash. C. C. 715.
 
 PROOFS OF — FROM ADVERSARY'S POSSESSION. 565 
 
 (luced an agreement between himself and a stranger to the defendant, 
 in pursuance of notice from the defendant, in order to show that the 
 plaintiflF had no interest in the subject-matter insured, it was held 
 that the defendant was bound to prove the execution of the agree- 
 ment by means of the subscribing witness. In the subsequent case 
 of Pearce v. Hooper,^ it was held that if the party producing *a r*np£«-| 
 deed upon notice was possessed of a beneficial interest under it, 
 proof of the execution of the deed by his adversary was not necessary. 
 In that case the defendant in trespass called for the deed which con- 
 
 ^ 3 Taunt. 60. In an action to recover a deposit for the purchasing of an 
 estate, the plaintiff need not prove the contract of sale produced by the vendor: 
 Bradshaw v. Bennett, 1 M. & Rob. 143. So where the defendants claimed title 
 to the goods for the conversion of which the action was brought, under a deed 
 of assignment, and produced it at the trial under notice, it was held that it might 
 be read against them without proof of execution, although the plaintiffs denied 
 its validity on the ground of fraud : Carr v. Burdiss, 1 C, M. & R. 785. So 
 where the defandants, assignees of a bankrupt, produced, under a notice from 
 the plaintiff (in an action for use and occupation) the deed of assignment of the 
 bankrupt's effects ; it was held, that the deed was admissible in evidence, though 
 not proved by the attesting witness, it having been shown that the defendants 
 occupied under the deed : Orr v. Morrice, 3 B. & B. (7 E. C. L. R.) 139. In an 
 action for work and labor, the defendant produced an agreement, signed by the 
 plaintiff only, and attested, and Bayley, J., held, that proof by the attesting 
 witness was unnecessary : Mann v. Musgrave, York Spring Ass. 1828. So in an 
 action by a servant against his master for not employing him every working 
 day, and paying him during a year which had not expired, with a plea of non 
 assumpsit, the plaintiff produced upon notice the agreement between him and 
 defendant ; and Cresswell, J., held that the plaintiff claimed an interest under 
 it, and that the attesting witness need not be called : Bell v. CJiai/tor, I C. & K. 
 (47 E. C. L. R.) 162. So, where the plaintiff agreed in writing to erect hustings 
 for the defendant for 19L IO5., receiving the wood back and finding labor, and 
 the hustings were destroyed by a mob, the defendant being sued for not re- 
 storing the wood produced on notice the agreement ; it was held that the sub- 
 scribing witness need not be called : Fuller v. Pattrick, 18 L. J., Q. B. 236. In 
 an action by a lessee against his assignee of a lease, the plaintiff having proved 
 the execution of the counterpart, the original being in the defendant's pos- 
 session, it was held that it was unnecessary for the plaintiff to prove the execo- 
 tion of the original on its production by the defendant: Burnett v. Lynch, 5 B. 
 & C. (11 E. C. L. R.) 589. Where the attorney of the lessors of the plaintiff 
 obtained from a lessee and defendant, the lease to the latter, in order to prevent 
 the lease from being set up as a defence, and afterwards obtained an authority 
 from th.it lessee to detain the lease ; it was held, that on the lease being pro- 
 duced at the instance of the defendant, no proof was necessary. For the lessors 
 of the plaintiff were to derive a benefit from the possession of the lease, and the 
 conduct of their attorney amounted to a recognition of the lease as a valid in- 
 strument: Doe V. Heming, 6 B. & C. (13 E. C. L. R.) 28.
 
 567 PRIVATE DOCUMENTS. 
 
 r*rp'7-\ veyed an estate to *the plaintiff, and which by its description 
 of the extent excluded the locus in quo ; and the court held, 
 that since the plaintiff would have no interest in the estate if the deed 
 did not convey it, the production of the deed was, against himself, 
 good evidence of its execution. The court, however, in tliis case, 
 admitted the general doctrine expounded in Cfordon v. iSecretan, and 
 assented to the case put there by way of illustration, of an heir at 
 law Avbo produces a will upon notice given by a devisee named in the 
 will. So where both parties claim an interest under the instrument 
 so produced, such proof is unnecessary." As where the plaintiflF 
 claims under the original lessee, and the defendant under the assign- 
 ment."^ An admission by the attorney of the party in possession of 
 the deed before the trial, that the party claims under the deed, has 
 been held to be sufficient.® But the interest under a deed in the party 
 producing it, which renders its proof by the attesting witness unneces- 
 sary, must be an interest claimed by him in the cause.^ A party also 
 r*srfi1 ^^ ^^^* entitled *to read a deed in evidence without the usual 
 proof, on the mere ground of its coming out of the possession 
 of the adversary, except where the deed is produced by the adversary 
 upon the trial of the cause. ^ Where a deed has been received from 
 the possession of the adversary, and remained in the possession of the 
 party producing it for some months previous to the trial, who might 
 therefore have been prepared to prove the execution, it was held that 
 
 <= Doe V. Wilkins, 2 N. & M. (28 E. C. L. R.) 434. 
 
 ^ Knight v. Martin, 1 Gow (5 E. C. L. R.) 26. 
 
 * Roe V. Wilkins, 4 Ad. & E. (31 E. C. L. R.) 86 ; KnitjU v. Martin, Gow (5 
 E. C. L. R.) 26. See Doe v. Heming, supra. As to admissions by an attorney, 
 see Vol. II., tit. Attorney, Admissions. Such an admission, if untrue, would 
 operate to the deception of the party to whom it was made. 
 
 ' Eearden v. Minter, 5 M. & G. (44 E. C. L. R.) 204. In this case the plaintiff 
 claimed commission for the defendant as his agent in procuring him an appren- 
 tice. The defendant pi'oduced the apprenticeship-deed, under notice to do so. 
 It was held that the case did not fall within the exception to the rule requiring 
 the execution to l>e proved, the defendant not claiming in that cause any in- 
 terest under the deed. So, where the defendant, to prove that he had been in 
 partnership with the plaintiff, offered a written contract in evidence, purporting 
 to be made by him and the plaintiff, as partners, with K., a builder, for work to 
 V>e done by K. upon the premises where the plaintiff carried on the business in 
 which tbe partnership was alleged to have subsisted, the contract being in the 
 plaintiff's custody, was produced ))y him on notice, but it was held inadmissible 
 without proof of the execution: Collins v. Baynton, 1 Q. B. (41 E. C. L. R.) 
 117. 
 
 "■ Vacher v. Cocks, 1 B. & Ad. (20 E. C. L. R.) 144.
 
 PROOF OF — FROM ADVERSARY'S POSSESSION. 568 
 
 it could not be read without the ordinary proof. "^ A parchment coming 
 out of the adversary's possession, without either signature or seal, may 
 be read as a document coming out of the adversary's possession, but 
 not as a deed.' Another exception to the general rule is that of a 
 public officer, such as a sheriff, who produces an instrument, the exe- 
 cution of which he was bound to procure; as against him, it is pre- 
 sumed to have been duly executed.'' 
 
 If the adversary does not produce it, proof must then be given, 
 as in case of the loss of the deed.' But it has been *said r*rfiQ-| 
 that slighter evidence will suffice, where the deed is in the 
 
 M B. & Ad. (20 E. C. L. R.) 144. And in Carr v. Burdiss, 1 C, M. & R. 
 782, Parke, B., observed, that if the deed had been given up before the action, 
 it might have made a difference. 
 
 ' Eoe V. EotcHngs, 7 East 291 ; Tt/rwhitt v. Wj/mie, 2 B. & Aid. 554. 
 
 * Scott v. Waithman, 3 Stark. C. (3 E. C. L. R.) 168 ; Barnes v. Lucas, Ry. &■ 
 Mood. (21 E. C. L. R.) 264 ; Plumer v. Brisco, 11 Q. B. (63 E. C. L. R.) 46. 
 
 ' Sir Edward Seymour's case, 10 Mod. 8. On the sale of premises to the de- 
 fendant's landlord, a feoffment had been delivered by the vendor ; the question 
 was as to the premises sought to be recovered by the lessor of plaintiff, being 
 parcel of the premises so conveyed ; notice had been given to produce the feoff- 
 ment, which not being done, an abstract thereof was tendered, there being no 
 proof of any copy ever having existed. Held, that it was admissible without 
 calling the attesting witness ; and that it not being necessary to prove the feoff- 
 ment, neither was it necessary to prove the livery of seisin : Doe v. Wainwright, 
 5 Ad. & E. (31 E. C. L. R.) 520. The party seeking to prove the contents of a 
 document in the adversary's possession, cannot compel him to produce it on 
 the trial ; all he can do is to give notice to produce the document; and, if he 
 omit to do so, the only consequence is that the party seeking to give such evi- 
 dence is entitled, after proof of possession by the adversary, to give secondary 
 evidence of the contents : see Entick v. Carrington, 19 How. St. Tr. 1073 ; 
 The Attorney- General v. Le Merchant, 2 T. R. 201 ; Cooper v. Gibbons, 3 Camp. 
 363. But although it be true that the refusal of a party to produce a docu- 
 ment in his possession does not authorize any direct inference as to the contents 
 of the writing : Lawson v. Sherivood, 1 Stark. C. (2 E. C. L. R.) 314 ; Cooper v. 
 Gibbons, 3 Camp. C. 363 ; and can in no case supply the defect of proof where 
 written proof is requisite ; as where the action is brought on a bond of which 
 the defendant, the obligee, has obtained possession, there seems to be no rule 
 of law which excludes, or which can exclude, a jury from taking this circum- 
 stance into consideration, in connection with other circumstances in forming 
 their conckision on a matter of fact, to the proof of which written evidence is 
 not essential. It is scarcely possible that an unfavorable presumption should 
 not be made against a trader, who, upon the question whether particular goods 
 had been paid for by a customer, refused to produce his books when called for 
 to show credit given. This principle seems, in effect, to be admitted by the 
 authorities (see note (^h) ), which state that slighter evidence will suffice to 
 prove a deed where it is in the hands of the adversary, than when it is lost or 
 destroyed : see Roe v. Harvey, 4 Burr. 24S4 ; Bate v. Kinzey, 1 C, M. & R. 41.
 
 569 PRIVATE DOCUMENTS. 
 
 hands of the adversary than where it is proved to have been lost or 
 destroyed." Where a party, after notice, refuses to produce an 
 agreement, it is to be presumed, as against him, that it is properly 
 r^rr^n-i Stamped." * Where the declaration in covenant alleged that 
 the deed was in the possession of the defendant, and on non 
 est factum pleaded, it was proved that the deed was in the hands of 
 the defendant, to whom notice had been given to produce the deed, 
 and the plaintiflF gave parol evidence of the deed, the attesting wit- 
 ness being in court ; it was held that the parol evidence was well 
 received." Where two parts of an agreement are signed by both 
 parties, one of which is stamped, and is the possession of the defend- 
 ant ; if he refuse to produce it upon notice, the unstamped part is 
 receivable as secondary evidence of the contents of the other. ^ So, 
 although the unstamped counterpart were not signed by the parties.'' 
 If a party, after notice, does not produce a document in his custody, 
 
 But now, by 15 Vict. c. 99, s. 6, the party may obtain the evidence by a 
 summons. 
 
 ■" 12 Vin. Abr., T. b. 65, pi. 22; Eccleston v. Spehe, Carth. 79 ; see Pritt v. 
 Fairclough, 3 Camp. 305, supra. In covenant by a remainderman for not re- 
 pairing : plea, that lessor was only tenant for life ; held, that after notice to the 
 plaintiff to produce a specific deed, the steward might be called to prove the 
 existence and nature of it ; and although the possession of the steward might 
 be considered as the possession of his principal, so as to protect him from pro- 
 ducing it under a spa. duces tecum, his knowledge of the contents was not 
 within the principle of privileged communications, which extend not beyond 
 counsels and attorneys : Earl of Falmouth v. ilfoss, 11 Price 455. 
 
 " Crisp V. Anderson, 1 Stark. C. (2 E. C. L. R.) 35: Pooley v. Goodioln, 4 Ad. 
 & E. (31 E. C. L. R.) 94. But if the person who gives secondary evidence of 
 its contents shows it to be unstamped, the case is different: see Croivther y. 
 Solomons, ante, p. 541, note (n). A judge has no power to order, in the case of 
 a document supposed to be lost, that if the party does not produce it to be 
 stamped a copy stamped shall be read in evidence, and the other side shall be 
 precluded from producing the original or objecting that it was not stamped: 
 Raven v. Hamilton, 15 Q. B. (69 E. C. L. R.) 191. 
 
 • Cooke v. Taiisivell, 8 Taunt. (4 E. C. L. R.) 450. So, in a case of a notice to 
 quit : Poole v. Waaren, 8 Ad. & E. (35 E. C. L. R.) 582. 
 
 p Waller v. Ilorsfall, 1 Camp. C. 501. It seems, that where the instrument, 
 if produced by the .adversary on notice, would have been admissible in evidence 
 without proof of execution, a copy is also admissible in evidence without proof 
 of execution : Daxson v. Havjh, 1 Es]). C. 409. In an action of covenant on 
 an indenture of apprenticeship, where the defendant did not produce it after 
 proof of possession by him and notice, it was held that the plaintiff might 
 give parol evidence of the contents, without calling the subscribing witness : 
 Cooke v. Tanswell, 8 Taunt. (4 E. C. L. R.) 450. 
 
 "* Garnons v. Swift, 1 Taunt. 507.
 
 PROOF or — IN adversary's possession. 570 
 
 the party giving the notice is entitled to give secondary evidence of 
 the instrument. And it has been held, that in such case the party 
 giving the notice, may give such secondary evidence without calling 
 the subscribing witness;' *even although he know the name (-:f:c7-|-i 
 of the subscribing witness. ° Where a party is proved to 
 have destroyed a document which would have been evidence against 
 him, slight evidence will usually be sufficient to supply it.* The 
 same principle applies where the party for sinister purposes with- 
 holds the instrument. Where the instrument is out of the power of 
 the party, secondary evidence is admissible. As where a will re- 
 mains in Chancery by the order of the court." The party obliging 
 the adversary to give secondary proof, cannot by retracting or pro- 
 ducing the original, compel him to give the ordinary proof ;^ nor can 
 he produce it as part of his own case.^ Nor can he put it into the 
 bands of a witness, and examine as to the time when an interlineation 
 was made in it." 
 
 A deed or other instrument may be read Avithout proof of execu- 
 tion, by virtue of a rule of court to that effect. ^ And now by rule 
 H. T., 4 Will. IV., a judge at chambers may, with consent, order 
 the admission in evidence of documents upon notice given in due 
 form. The judge's order is expressed to be with a saving of all just 
 exceptions to the admissibility of the document ; and therefore they 
 may still be taken at the trial. The admission of a document 
 under this order is a waiver of any objection to interlineation in it, 
 for as it prevents the necessity of calling *the attesting p^._^ 
 witness, it should also prevent the taking of any objection -• 
 
 "■ Cooke V. Tanswell, 8 Taunt. (4 E. C. L. R.) 450. Where an instrument has 
 been destroyed and the witness is known, he must be called : Gillies v. Smithers, 
 2 Stark. C. (3 E. C. L. R.) 528. But where the plaintiff declared upon a lost 
 bond, and a witness stated that there were attesting witnesses whose names he 
 did not know, it was held, that the plain tifT was entitled to recover without 
 calling either of them : Keeling v. Ball, Peake's Ev. 96. 
 
 * Cooke V. Tanswell, supra, per Gibhs, C. J. 
 
 ' A small matter will supply it. Per Ilolt, J., Anon., Lord Raym. 731. 
 
 " B. N. P. 254 ; 10 Co. 92. 
 
 " Jackson v. Allen, 3 Stark. C. (3 E. C. L. R.) 74; Edmonds v. Challis and 
 others, 7 C. B. (62 e'. C. L. R.) 413. 
 
 "^ Doe dem. Thompson v. Hodgson, 12 Ad. & E. (40 E. C. L. R.1 135. Nor even 
 use it to refresh memory of a witness : per Wilde, C. J., Bristol Assizes 1847, 
 Roscoe on Evidence, 8th ed. 11. 
 
 ^ Doe V. Cockell, 6 C. & P. (25 E. C. L. R.) 525. See Leivis v. Hartley, 7 C. 
 & P. (32 E. C. L. R.) 405. 
 
 y Gilb. Law of Ev. 91 ; Tr. per Pais 446. For the general rule IL 4 Will. 
 IV. c. 20, as to the admission of documents, see Vol. IL, tit. Admissions.
 
 572 PRIVATE DOCUMENTS. 
 
 which such a person could remove/ but it does not Avaive an objec- 
 tion to the stamp. ^ So a document may be read without proof, where 
 the party or his attorney makes an admission of its execution delibe- 
 rately for the purposes of the cause.'' If the admission be signed 
 by the attorney on the record, it may be read ; but if he be not the 
 attorney on the record, further proof must be given to show that 
 he was the authorized agent of the party." So it may be read, if 
 the attorney agree that the other party should act on the instru- 
 ment, as if the witness had been produced;'' or even merely agree 
 to admit the handwriting.® But notwithstanding an agreement by 
 the attorney to admit the due execution of the specialty mentioned in 
 the declaration, the defendant may still object on the ground of vari- 
 ance.^ So the deed may be read where it is admitted *by the 
 ^ J pleadings. In all these cases the consent of parties super- 
 sedes the necessity of the usual proof,^ since it is the office of the 
 jury to decide upon those facts only which are in controversy. It 
 has been already seen that a mere parol admission, or even an admis- 
 
 * Freeman v. Steggal, 19 L. J., Q. B. 18. 
 
 » Vain V. Whiitington, Car. & M. (41 E. C. L. R.) 484. 
 
 '' Griffiths V. Williams, 1 T. R. 710: where it was the attorney's agent: 
 Young v. Wright, 1 Camp. 140 ; Gainsford v. Grammar, 2 Camp. 9. But mere 
 statements made by an attorney in the course of conversation arc not admissi- 
 ble : Parkins v. Haiokshaiv, 5 Stark. C. 239 ; Fetch v. Lyon, 9 Q. B. (58 E. C. 
 L. R.) 147 ; Wilson v. Turner, 1 Taunt. 399. Although made to the opposite 
 attorney, not being intended as an admission in the cause : Fetch v. Lyon, 9 Q. B. 
 (58 E. C. L. R.) 147. But an undertaking by the attorney to appear for L. and M., 
 joint owners of the sloop A., is evidence that they were such owners : Marshall v. 
 Clijf, 4 Camp. 133. And a mere agreement to produce a particular instrument 
 does not dispense with the necessity of proof when produced ; Wetherston v. 
 Edgington, 2 Camp. 94. See Vol. II., tit. Admissions. 
 
 ' He must have been the party's attorney when the admission was made : 
 Wagstaffx. Wilson, 4 B. & Ad. (24 E. C. L. R.) 339. 
 
 * Laing v. Kaine, 2 B. & P. 85. 
 
 * Milirard v. Temple, 1 Camp. C. 375. See B. N. P. 254. 
 
 ' Goldie V. I<huttleioorth, 1 Camp. 70. But he must take care that the terms 
 of the admission do not exclude him from taking the objection : Wilkes v. Hop- 
 kins, 1 C. B. (50 E. C. L. R.) 737; and see Filgrim v. Southampton Railway 
 Company, 18 L. J., C. P. 330. 
 
 « It may be used on a new trial : Elton v. Larkins, 1 M. & Rob. 196 ; Langley 
 v. Earl of Oxford, 1 M. & W. 508 ; and cannot be retracted, even by a new 
 attorney after the death of the attorney who made it : Doe dem. Wetherill v. 
 Bird, 7 C. & P. (32 E. C. L. R.) G ; Wilkes v. Hopkins. An admission signed 
 by the obligor's attorney, acknowledging the signature of his client and of the 
 attesting witness, is presumptive evidence of delivery: Milward v. Temple^ 1 
 Camp. 375.
 
 PROOF BY ADMISSIONS. 573 
 
 sion in Chancery,'' by a party of his execution of a deed, was formerly 
 
 considered insufficient, but that such proof will now suffice.' 
 
 By the stat. 27 Hen. VIII., c. 16, a bargain and sale of an estate 
 
 *of inheritance or of freehold, must be enrolled.'' And since ^ , _„ ,^ 
 
 r 5741 
 the law requires such enrolment, it has been held in many •- -• 
 
 cases that enrolment is sufficient evidence of the lawful execution of 
 
 the deed,' as against all parties. 
 
 ^ As to admissions of execution by the parties themselves, see ante, pp. 505, 
 506. 
 
 * Supra, 505. In one case, where the subscribing witness did not appear, an 
 endorsement by the obligor on the deed was read, reciting a proviso within the 
 deed, that it should be void on payment of a sum of money, and acknowledging 
 the non-payment, and admitting the deed ; this was held to be proof (B. N. P. 
 254) ; but note, that in this case the witness did not appear, and qu., whether 
 his absence was not accounted for. 
 
 '' See supra, p. 261, note [j). Deeds were also enrolled at common law pro 
 salvci custodid : 1 Salk. 389. And at common law any deed may be enrolled 
 upon the acknowledgment of a party to it, who cannot afterwards deny the 
 execution : B. N. P. 256. The enrolment of a deed under this statute is a 
 record : R. v. Hopper, 3 Price 495. And therefore is not traversable in any 
 material part, such as the date of the enrolment: 3 Price 495. Hence an 
 examined copy of a memorial of a deed required to be enrolled by an act of 
 Parliament is evidence of the instrument. Thus it has been held, that an 
 examined copy of the memorial of an assignment of a judgment, which was 
 required to be enrolled, was evidence of the fact of assignment. See Hohhouse 
 V. Hamilton, 1 Sch. & Lef. 207 ; Fitzgerald v. Fitzgerald, 8 C. B. (65 E. C. L. 
 R.) 592. In the case of Baikie v. Chandless, 3 Camp. C. 17, in an action 
 against an attorney for negligence in the purchase of an annuity, which was 
 void for want of a sufficient memorial, in order to prove the memorial a copy 
 was offered in evidence, which had been examined with the instrument at the 
 Rolls ; upon the objection taken, that a copy of the original memorial which 
 the defendant had carried in should be produced, Lord Ellenborough held that 
 the copy proposed was admissible. The Act required the memorial carried in 
 to be eni-olled correctly ; and it was to be presumed that those concerned had 
 done their duty under the Act. The enrolment was a sort of statutable recoi'd, 
 and an examined copy of it admissible. In the case of Tinkler v. Walpole, 14 
 East 226, the case of a ship's register was distinguished from that of an enrol- 
 ment under a statute ; Lord Ellenborough observed, " The case of enrolments 
 stands on a particular statute; the statute of Anne (10 Anne, c. 18, s. 3), pro- 
 vides that copies of the instrument of indentures of bargain and sale, examined 
 with the enrolment, signed by the proper officer, and proved on oath, shall have 
 the same force and eifect as the original indentures. But the Register Acts 
 have not attributed to the registers the same effect as if the persons named 
 therein were proved to be the owners." 
 
 ' Wi/mark's case, 5 Co. 74 ; Stile 462 ; Eden v. Chalkill, 1 Keb. 117 ; Smartle 
 V. Williams, Salk. 280 ; B. N, P. 255, 256. A copy of an enrolment of a deed 
 to lead the uses of a fine is prima facie evidence of the deed : Taylor v. Jones,
 
 575 PRIVATE DOCUMENTS. 
 
 j-^p^-.-, *The practice is admitted, but the principle doubted, ia 
 L '^ -I Buller's Law of Nisi Prius,'" both because the authority 
 relied upon in support of such practice is the case of Smartle v. 
 Williams^ where the acknowledgment was by the bargainor, against 
 whom the enrolment was offered in evidence, and not by the bar- 
 gainee, as stated in the report of Salkeld;" and besides, that the 
 bargain and sale in that case was of a mere term, and therefore was 
 not within the statute. But it seems that the enrolment of any 
 deed upon the acknowledgment of a party is evidence against him- 
 self whether the deed does or does not need enrolment, as in the 
 case of Smartle v. Williams," of a release, and this has been the 
 practice. P The register of a conveyance in a register county, is not 
 evidence, except as secondary evidence, where the adversary has had 
 notice to produce the conveyance.'* When the deed is enrolled, the 
 1 Ld. Raym. 746. An enrolment of a deed is not a record, because it is not the 
 act of the Court, but only the private act of the party authenticated in Court: 
 Gilb. Law of Ev. 92. But see E. v. Hopper^ 3 Price 495, where it was held 
 that the enrolment of a bargain and sale, under the statute of Henry A^III., 
 was a record, that the date was a material part of the record, and that proof of 
 a different date was not admissible. All acknowledgments of deeds in K. B. 
 are, by rule of Court, to be made on the plea side, in open court (1 Salk. 389), 
 and the enrolment is made either upon the acknowledgment or proof of the 
 delivery of the deed by the party : Com. Dig., Bargain and Sale, B. 6 ; for the 
 bargainor might die before acknowledgment. After a. deed had been enrolled, 
 it seems that a party could not plead non est factum, but that he might avoid 
 the effect of it by pleading riens passa par le fait: Gilb. Law of Ev. 145; 1 
 Leon. 184-5. And infants, feme coverts, and strangers. Com. Dig., Bargain 
 and Sale, B. 10, are not concluded by the enrolment. The endoi'sement of a 
 registration in Ireland, on a deed executed there, need not be proved : Pi/ne v. 
 Dor, 1 T. R. 55. See also Garrick v. Williams, 3 Taunt. 540. 
 
 -" B. N. P. 255 ; Smartle v. Williams, 3 Lev. 387. 
 
 - 1 Salk. 280. 
 
 ° 3 Lev. 387 ; Com, Dig., tit. Evidence, B. 1. It was observed by Bayley, J., 
 in the case of Tinkler v. Walpole, 14 East 230, that in the case of Smartle v. 
 Williams, the deed was thirty years old ; and see B. N. P. 255, where it is said 
 that if the deed need no enrolment, the enrolment will not be evidence : 1 Keb. 
 117; Salk. 280. 
 
 P B. N. P. 256. In Lady Ilolcroft v. Smith, 2 Freeman 259, a distinction was 
 iiiiide between deeds of bargain and sale, enrolled in pursuance of the statute, 
 and other deeds enrolled ; and the court 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. 
 
 "i Mollon v. Harris, 2 Esp. C. 549. And it is such evidence against the repre- 
 sentatives of the party by whom the conveyance was registered: Wollastonson 
 V. Uakewill, 3 M. & G. (42 E. C. L. R.) 297. An examined copy is evidence: 
 Doe V. Kilncr, 2C.&P. (12E.C L R.) 289.
 
 PROOF BY ENROLMENT. 575 
 
 endorsement of the enrolment is evidence without further proof, 
 
 because the officer is intrusted to authenticate *such a deed ^^^„ .^ 
 
 r 5701 
 by enrolment." But where a copy is used as secondary evi- ^ -• 
 
 dence, it must be proved to have been examined Avith the enrolment.' 
 A deed purporting to be the deed of several, may be enrolled on 
 the acknowledgment of one alone,* and is sometimes enrolled upon 
 the acknowledgment of a mere nominal party, whose name is intro- 
 duced for the very purpose, the parties themselves residing abroad." 
 It would therefore be manifestly inconsistent Avith the plainest princi- 
 ples of justice to admit such enrolments to be evidence against those 
 who had not acknowledged them, without proof of the execution of 
 the deeds ; as, for instance, to receive a deed acknowledged by a bare 
 trustee, without proof of execution by the owner of the inheritance.'' 
 And although it appears that an opinion once prevailed to this effect, 
 yet it seems to be so destitute of principle, that it is not probable 
 that it would now be acted upon. 
 
 By the stat. 10 Anne, c. 18, s. 3,^ where in any pleading any 
 indenture of bargain and sale enrolled shall be pleaded with a pro- 
 fert in curid, the person so pleading may produce a copy of the en- 
 rolment of such bargain and sale ; *and such copy, examined 
 
 r*577 1 
 and signed by the proper officer, and proved upon oath to •- -^ 
 
 be a true copy, shall be of the same force as the indentures of bar- 
 gain and sale would be.^ 
 
 It is sufficient for a party in ejectment on an annuity deed to prove 
 the deed without proving the enrolment, and it lies on the party who 
 insists on the want of enrolment to prove the negative.^ It seems 
 
 *■ The production of a deed with the memorial endorsed is sufficient proof of 
 the enrolment: Compton v. Chandless, 4 Esp. C. 18 ; B. N. P. 229. 
 
 " B. N. P. 229. 
 
 * B. N. P. 256 ; Thurle v. Madison, Sty. 462. 
 
 ° Salk. 389. 
 
 ^ B. N. P. 256. 
 
 y This provision was made for supplying a failure in pleading or deriving title 
 to lands, conveyed by such deeds of bargain and sale, where the original inden- 
 tures are wanting, which often happens, especially where divers lands, &c., are 
 comprised in the same indenture, and afterwards devised to different person. 
 See 14 East 231, 1 Sch. & Lef. 107. Before this statute an enrolment could not 
 have been pleaded, although a deed had been exemplified under the great seal ; 
 it was necessary to make a profert of the deed itself under seal : Co. Litt. 225, 
 b. ; and see Olive v. Gwyn, Hard. 119 ; see the stat. 8 Geo. II., c. 6, s. 22, con- 
 cerning Deeds of Bargain and Sale of Lands in the North Riding of Yorkshire. 
 
 y As to deeds registered under 7 Anne, c. 20, see Doe v. Clifford, 2 C. & K. 
 (61 E. C. L. R.) 448. 
 
 ^ Doe V. Bingham, 4 B. & Aid. (6 E. C. L. R.) 672 ; Doe v. Mason, 3 Camp. 7.
 
 577 PRIVATE DOCUMENTS. 
 
 that a bargain and sale and enrolment of lands conveyed to a charity, 
 will not be presumed from long enjoyment/ 
 
 Although it has been held that a deed to lead the uses of a fine 
 requires no proof,*" on account of the strong presumption that the 
 parties meant to convey the lands to some uses or other ; yet in a 
 subsequent case, the judges were of opinion that such a deed must be 
 proved." So it seems that the counterpart of such a deed is not ad- 
 missible in evidence without the usual proof. '^ 
 
 It has been held that a recital of a deed in a subsequent deed is 
 evidence of the former against a party to the latter. Thus, a recital 
 of the obligor's appointment to an office, in a bond for faithful exe- 
 cution of its duties, is evidence against him of that appointment.® The 
 recital of a lease is evidence of the lease against the releasor, 
 L J and those who claim under him ;^ for it *operates by way of 
 admission ; and therefore such a recital is not evidence against a 
 stranger to the second deed.^' 
 
 * Doe V. Waterton, 3 B. & Aid. (5 E. C. L. R.) 149. Whether such enrolment 
 need be proved by the party setting up the deed, see Doe dem. Williams v. 
 Lloi/d, 1 M. & G. (39 E. C. L. R.) 671 ; at all events, the memorandum endorsed, 
 purporting to be signed by the proper officer, is suflScient : Ibid. 
 
 ^ Glascock V. Warren, B. N. P. 254. 
 
 « Griffith V. Moore, B. N. P. 255. 
 
 « B. N.P.255 ; Salk. 287, contra; see Doe v. rulman,3Q. B. (43 E.G. L.R.)622. 
 
 « E. V. Welsh, 2 C. & K. (61 E. C. L. R.) 296. 
 
 ^ Ford v. Lord Grey, 6 Mod. 44 ; s. c, Salk. 285 ; Cragg v. Norfolk, 2 Lev. 
 108 ; Fitzgerald v. Eustace, Gilb. Law of Ev. 87 ; Hard. 123 ; Plumer v. Brisco, 
 11 Q. B. (63 E. C. L. R.) 46 ; and see ante, p. 506, 507. See Vol. II., tit. Admis- 
 sions, Notice, Recital. Com. Dig., Ev. B. 5. It seems that a recital is always 
 evidence as against the party to a reciting lease, vrhere it operates by way of 
 estoppel, although not against another party where it cannot so operate ; see 
 Cragg v. Norfolk, 2 Lev. 108 ; 2 Vent. 170 ; Roll. 678, 1. 4 ; and therefore the 
 recital, in a grant of an office, of a former grant, on the determination of which 
 the present grant was to commence, is no evidence in favor of the grantee of the 
 former grant. Ibid. But if one relies on a patent to prove a former grant which 
 it recites, it is also evidence to prove a surrender, which it also recites : 2 Vent. 
 171 ; Com. Dig., Ev. B. 5. An averment, in a declaration against a master for 
 not inserting the true consideration in an apprentice deed, that A. R., by a cer- 
 tain indenture, put himself apprentice to the defendant, is proved by the pro- 
 duction of the part executed by the defendant, in which it is recited that A. B. 
 put himself apprentice, &c. : Burleigh v. Stibhs, 5 T. R. 465. It was questioned 
 in Pearce v. Morrice, 2 Ad. & E. (29 E. C. L. R.) 84, where in the attestation 
 of a deed the parties state that the two parts were executed by them respect- 
 ively, whether they are thereby estopped from denying the execution by the 
 others ; and see Willington v. Browne, 8 Q. B. (55 E. C. L. R.) 196. 
 
 * 5 T. R. 465. 
 
 TIh; nil<; of law is that a deed, containing a recital of another deed, is evi-
 
 ENROLMENT RECITALS. 578 
 
 No objection, it has been said, arising intrinsically from the con- 
 tents of an instrument, can preclude the reading of it, for till it has 
 
 dence of the recited deed against the grantor and all persons claiming by title 
 derived from him subsequently : Jackson v. Harrington, 9 Cow. 86. But such 
 recital is not evidence against a stranger, nor against one who claims by title de- 
 rived from the grantor before the deed which contains the recital : Penrose v. 
 Griffith, 4 Binn. 231 ; Ganoood v. Dennis, Ibid. 327 ; Morris'' Lessee v. Vande- 
 ren, 1 Dall. 67: Hites^ Heirs v. Sch-ader, 3 Litt. 447. Thus recitals of mesne 
 conveyances, contained in a patent from the Commonwealth to A., are not evi- 
 dence of these conveyances against B. who claims under a warrant from the 
 Commonwealth issued prior to the date of the patent : Bell v. Wctherill, 2 S. & 
 R. 350 ; Stewart v. Butler, Ibid. 382. This rule, however, does not hold where 
 the defendant shows no title : Doioning v. Gallagher, Ibid. 455. Whether, after 
 long possession, a recital in a patent would not be evidence in si^ch case. Qucere, 
 Penrose v. Griffith, tihi sup. But where a satisfactory foundation is laid of the 
 former existence and loss of an ancient deed, and where the subscribing wit- 
 nesses have been long dead, and there has been no possession against the deed, 
 and the recital is made by those who were likely to be acquainted with the truth 
 of the fact; such recital is evidence of the lost deed as against strangers : Gar- 
 wood V. Dennis, ubi sup. So a deed containing a recital by the person to whom 
 the lost deed is alleged to have been made, who had been in possession a long 
 time, and who held originally as tenant by the curtesy, may be admitted to ex- 
 plain the nature of his possession, and to show that he exercised acts of ownei*- 
 ship, of a public nature, inconsistent with the curtesy-estate : Ibid. Though 
 the existence of an absolute deed or lease, may be proved by a recital in another 
 deed against the party making such recital, and all claiming under him, yet it 
 seems that the existence of an outstanding mortgage cannot be proved by such 
 recital ; for, if produced, it might appear to have been satisfied, no release be- 
 ing necessary to restore the title to the mortgagor: Jackson v. Davis, 18 Johns. 
 11, 12, per Piatt, J. A recital in a deed, that certain land had become the 
 property of A., is prima facie evidence against the grantor, that A. had an estate 
 in fee, subject to be rebutted by proof that he had a life estate only : Stoever v. 
 Lessee of Whitman, 6 Binn. 416. But a recital that the grantor had entered 
 upon lands, conveyed to A., for condition broken, does not estop a party who 
 claims under A., and not under the deed containing the recital, though that deed 
 is given in evidence by him to prove a conveyance to A. : Ibid. A recital in a 
 deed by two trustees, that a third trustee had refused to intermeddle with the 
 trust, is not evidence of the fact : Milner v. Cutnmings, 4 Yeates 577. But re- 
 citals in a conveyance are evidence of pedigree : Lessee of Paxton v. Price, 1 
 Yeates 500 ; Morris^ Lessee v. Vanderen, uhi sup. If an ancient deed — which 
 when possession corresponds, proves itself — recite a power of attorney necessary 
 to give it validity, the due execution of the power will be presumed : Doe v. 
 Phel2>s, 9 Johns. 169 ; Doe v. Campbell, 10 Ibid. 475, s. v. So, if the reciting 
 deed is proved in the usual manner : Davidson'' s Lessee v. Beatty, 3 Har. & 
 McHen. 594. If a testator recite in his will that he has conveyed his lands to per- 
 sons therein named, such recital will estop his heirs from claiming the lands : 
 Den V. Cornell, 3 Johns. Cas. 174. An admission, contained in a recital of a
 
 578 PRIVATE DOCUMENTS. 
 
 been read the court cannot judge of the objection.'' The deposition 
 of one Oowden was offered in evidence, and proof was given of the 
 death of one Cowden who lived at Bow ; and Reynohls, C. B., al- 
 lowed the deposition to be read upon this evidence, because it did 
 not appear, otherwise than by the deposition, that Cowden lived else- 
 where than at Bow, and therefore the objection, that the Cowden 
 r*"'Q1 "^^'^ose death was proved was not the Cowden who *made the 
 deposition, was incomplete unless it was coupled with the 
 deposition.' But he said he would leave it to a jury to determine 
 whether the man whose death was proved was the man who made the 
 deposition.'' If upon the reading it appear that some part is not 
 properly admissible in evidence, as if it rest upon mere hearsay, or if 
 an accomplice in his confession charge a confederate, the court will, 
 upon summing up, advise the jury to leave the objectionable part out 
 of their consideration.' 
 
 It is also a rule that no intrinsic matter will obviate an extrinsic 
 objection to the reading of the document." 
 
 It is also a general rule, that where any document is produced and 
 read by one party, the whole is to be read, if the adversary require 
 it ;° for unless the whole be read there can be no certainty as to the 
 
 " Where an objection was taken to the reading an entry from a corporation- 
 book, on the ground that it contained many things not relating to the corpora- 
 tion, Lord Hardwicke said, that as the objection was derived from the book 
 itself, it was impossible to say that it should not be read ; but that if any mate- 
 rial objection should appear to the book on reading, he would mention it to the 
 jury on summing up : Moore v. Mayor of Hastings, 17 How. St. Tr. 845. It is, 
 however, to be observed, that the Court may look at and read a document, in 
 order to ascertain whether it is admissible — e. g., in a case of a stamp ob- 
 jection — without having it read aloud. The rule upon this subject has been 
 much better understood of late, and the old cases can hardly be treated as 
 authorities. 
 
 « Benson v. Olive, 1 Ford's MS. 146. 
 
 * Ibid. This seems to be erroneous ; as it was a question for the judge. 
 
 J See Lord Hardwicke's observations, 17 How. St. Tr. 845; Moore v. The 
 Mayor of Hastings; and of Wood, B., in Bullen v. Michel, 2 Price 405. 
 
 "" 1 Ford's MS. 115; Adamthwaite \. Singe, 1 Stark. C. (2 E. C. L. R.) 113. 
 
 " Earl of Bath v. Battersea, 5 Mod. 9 ; 1 Ford's MS. 146 ; Andr. 258 ; but 
 
 deed of one of the lessors in ejectment, is evidence aginst all of them : Brandt 
 V. Klein, 16 Johns. 335. M. 
 
 As to recitals in deeds ; see Yahoola Mining Co. v. Toby, 40 Ga. 479 ; Scharff 
 V. Keener, 14 P.* F. Smith 376; Schuylkill Co. v. McCreary, 8 Ibid. 304; Old- 
 ham V. McClanahan, 2 Duvall 416 ; Beeching^s Appeal, 2 Brcwst. 202 ; Clarke v. 
 Crego, 47 Barb. 599 ; Williains v. Keyser, 1 1 Fla. 234 ; Deeny v. Gray, 5 Wall . 
 795.
 
 INTRINSIC OBJECTIONS. 580 
 
 real sense and meaning *of the entire document. The en- i-^^-oat 
 tirety, however, required by this rule, is confined to the '- -' 
 
 document in the state in which it is produced ; the fact tliat as pro- 
 duced it is in a mutilated state, applies not to the admissibility, but 
 to the value of the evidence." Upon the same principle,^ where one 
 document refers to another, the latter is, for the purpose of such re- 
 ference, incorporated with the former, and may be read to explain it; 
 as where the deposition of the captain of a ship refers to the log- 
 book ;P or a letter produced upon notice refers to other letters ;'' or 
 an interrogatory upon the examination of a witness to a letter."^ A 
 
 see supra, p. 444. In equity, when a passage is read from the defendant's 
 answer, all the facts stated in that passage must be read ; and if it refer to 
 facts stated in any other passage, that must be read for the purpose of explana- 
 tion ; ])ut if new facts be contained in such other passage, they are to be read 
 for the purpose of explanation only: Bartleit v. Gillord, 3 Russ. 159. Where, 
 in a suit for a legacy, the executor in the answer admitted assets, but insisted 
 that under the circumstances the legacy had been paid, it was held (in equity) 
 that the plaintiff was entitled to read the admission without reading the addi- 
 tional statement: Connop v. Hayward, 1 Y. & C. 33. So where it was necessary 
 to prove a rule of a benefit society by a transcript of the rules in the office of 
 the clerk of the peace, it was held requisite to produce a transcript of all the 
 rules : i?. v. Botjiies, 1 C. & K. (47 E. C. L. R.) 65. Where part of a return to 
 the office of first fruits, stating a collation to a rectory, was material and 
 admitted, it was held that the rest of the return was admissible, as showing 
 the value and accuracy of the document: Ii-ish Society v. Bishop of Berry, \'2 
 CI. & F. 641. 
 
 " Tindall, C. J., delivering the opinion of the judges in Lord Triinlestown v. 
 Kemmis, 9 CI. & F. 775. 
 
 P Where an agreement, under which a party contended that possession of a 
 ship to be built for him had been given him. in order to show that the assignees 
 of the builder of the ship (who had become bankrupt) had no title, recited a 
 former agreement on which the assignees relied to show their title, it was held 
 that the assignees were entitled to have the letter read : Goss v. Quinton, 4 Sco. 
 N. S. 471 ; and Falconer v. Hanson, \ Camp. 171 ; Johnson v. G'dson, 4 Esp. C. 
 21 ; Wheeler v. Atkins, 5 Esp. C. 246. 
 
 ' Johnson v. Gilson, 4 Esp. 21 ; secus, if the letter merely states that others 
 are enclosed under its cover. Where letters are put in, bearing different dates, 
 others sent in the interval, which form part of the same correspondence, cannot 
 be received unless expressly referred to in the letters put in : Sturge v. 
 Buchanan, 2 M. & Rob. 90. Where the plaintiff proposed to give in evidence 
 a letter of the defendant's attorney, which appeared to be an answer to one 
 from the plaintiff's attorney. Pollock, C. B., thought he ought not to do so 
 without putting in the latter: Watson v. Moore, 1 C. & K. (47 E. C. L. R.) 626. 
 But see contra, Lord Barrymore v. Taylor, 1 Esp. 326. 
 
 ' Wheeler v. Atkins, 5 Esp. C. 246, and note ; if the interrogating party refuse 
 to produce the letter, he must abandon the whole of the interrogatories. Where, 
 however, a book of accounts, or shop book, is produced in evidence at the re-
 
 580 PRIVATE DOCUMENTS. 
 
 "written answer made by a party to a question proposed to him, can- 
 not, it is said, be *read without showing the question to which 
 L -"it relates,^ not as evidence of the fact, but to explain the 
 answer. 
 
 But letters written by a party are evidence against him without 
 producing those to which such letters are answers ;' and a letter 
 written by the plaintiflF's agent to a witness is evidence against the 
 plaintiff," and does not make the answer of the witness evidence for 
 the plaintiff. 
 
 It is also a general rule, that whenever a party makes a state- 
 ment or admission, whether it be oral or written, which is after- 
 wards used against him as evidence of the stated or admitted fact, 
 the whole of the contemporaneous statement or declaration must be 
 received ; the part which operates for him, as well as that which 
 makes against him, is admissible evidence to prove the existence of 
 the fact. Thus, where the defendant stated an account, in which he 
 admitted the plaintiff's claim to a certain extent, but stated also a 
 
 quest of one of the parties, the reading an entry from it does not entitle the 
 other party to read all the other entries in the book, but only such as relate to 
 the same particular subject matter. Per Abbot, C. J., Catt v. Howard, 3 Stark. 
 C. (3 E. C. L. R.) 3; and see ante, p. 235; but see Wharam v. Eoutledge, 5 
 Esp. C. 235. 
 
 ' Rex V. Pidon, How. St. Tr. vol. xxx. p. 466 ; and see Watson v. Moore, 
 supra. But an answer in chancery is evidence as an admission under the 
 defendant's hand, where the bill is proved to have been lost : Hart v. Harrison, 
 Mich. 3 Geo. II. ; 1 Ford's MS. 145. On an examination before the commis- 
 sioners of bankruptcy, a machine copy of a letter was produced by the witness, 
 of which the solicitor to the commission took a copy, held, that in an action by 
 the assignees, the latter copy was inadmissible against the party producing the 
 machine copy, without reading his examination, although notice had been 
 given to produce the machine copy : Holland v. Reeves, 7 C. & P. (32 E. C. L. 
 R.) 36. 
 
 ' Lord Barrymore v. Taylor, 1 Esp. C. 326. The admission by a witness in 
 court is evidence against him, although he was prevented from entering into 
 any explanation: Collett v. Lord Keith, 4 Esp. C. 212. So the examination of 
 a party by commissioners of bankruptcy, signed by him, is evidence, although 
 part only was taken down : Milward v. Forbes, 4 Esp. C. 172. 
 
 " Where the plaintiflF's agent wrote a letter to a witness (living abroad and 
 examined by commission), the draft of which was shown to and approved by 
 his attorney; held, that the draft was admissible without producing the original, 
 as evidence of an act done, but that the answer of the witness to the agent was 
 not admissible: Rawlins v. Deshorouyh, <S C. & P. (34 E. C. L. R.) 321 ; 2 M. 
 ct Rob. 70.
 
 THE WHOLE, WHEN TO BE READ. 582 
 
 counterclaim for a sum specified, it was *admitte(l that the r*ro9-i 
 plaintiff on this evidence was entitled to recover no more 
 than the balance.'' 
 
 The principle does not apply where another entry happens to be 
 made upon the same paper or parchment, wholly distinct from that 
 which the party reads in evidence.^ 
 
 And the rule is subject to the qualification that the additional 
 statement must be so connected with that which has been given in 
 evidence as tendino; to show its true nature and bearino;.^ 
 
 Where a party is under the necessity of producing and r-^^roq-i 
 *proving a writing in order to connect a defendant with the 
 act of an agent, the recital of the authority under which the agent 
 assumes to act will not relieve the latter from the necessity of 
 proving that authority in his own justification by the proper evi- 
 dence.'^ 
 
 ^ Eandle v. Blackbwn, 5 Taunt. (1 E. C. L. R.) 245 ; Harrison v. Turner, 10 
 Q. B. (59 E. C. L. R.) 482. So where, in order to prove a sufficient memorandum 
 of an order for goods, within the 17th section of the Statute of Frauds, a letter 
 of the alleged purchaser was read in evidence which admitted the order, but 
 which also asserted that the goods had not been delivered in time ; it was held 
 that parol testimony was inadmissible to prove that no time was mentioned : 
 Cooper V. Smith, 15 East 103. So, if the drawer of a bill say that he does not 
 mean to insist on notice of dishonor, but that he is only bound to pay £70, the 
 whole statement must be taken together, and the holder can recover no more 
 than £70: Fletcher v. Froggatt, 2 C. & P. (12 E. C. L. R.) 569. A person, on 
 his examination before commissioners of bankruptcy, does not bring his books 
 with him, but while under examination consents that the accountant shall make 
 extracts from them ; such extracts were not allowed to be used in evidence with- 
 out reading the examination : Yates v. Carnsew, 3 C. & P. (14 E. C. L. R.) 99. 
 But where the plaintiffs sue upon an account rendered by the defendant, they 
 may impeach by other evidence an item in that account, although the account 
 rendered was the only evidence in the action : Rose v. Savory, 2 Bing. N. C. 
 (29 E. C. L.R.) 145. 
 
 y Sturge v. Buchanan, 10 Ad. & E. (37 E. C. L. R.) 598 ; and see Adei/ v. 
 Bridges, 2 Stark. C. (3 E. C. L. R.) 189 ; where, in an action against a sheriff 
 for a false return, it was held by Holroyd, J., that the plaintiff having given in 
 evidence a copy of the Avrit, the defendant was not entitled to have his return 
 read, which formed no part of the document which the plaintiff gave in evi- 
 dence. 
 
 '■ Supra, pp. 234, 235 ; Prince v. Same, 7 Ad. & E. (34 E. C. L. R.) 627. So, 
 in an action for an assault, a letter had been written by the plaintiff's attorney, 
 containing an apology ; it was held, that parts of it, extolling his client's charac- 
 ter for respectability, could not be read, nor was the letter admissible at all, if 
 expressed to be written "without prejudice;" Healey \. Thatcher, 8 C & P. 
 (34 E. C. L. R.) 388. 
 
 * Gray v. Smith, 1 Camp. 387. A''ol. II., tit. Trespass, Agency ; Stanley v. 
 35
 
 583 PRIVATE DOCUMENTS. 
 
 It is a rule equally general with the former, that in a court of 
 law, it is for the jury to consider what credit is to be attached to 
 the whole or any part of any particular statement, whether oral or 
 written,'' although a rule less flexible seems to have been adopted in 
 equity." It has also been seen that this rule does not make that 
 evidence which has an insufficient legal foundation ; as, for instance, 
 where that which is stated in the document professes to be the mere 
 belief or opinion of the party, or nothing more than hearsay. 
 
 Fielden, 5 B. & Aid. (7 E. C. L. R.) 425. So a plaintiff in a tithe suit in the 
 Exchequer, who read part of the defendant's answer to show what the issues 
 were, was not concluded by the depositions contained in such answer : Kemjjson 
 V. Yorke, 8 Price 13. 
 
 * Randall v. Blackburn, 5 Taunt. (1 E. C. L. R.) 245 ; Beckham v. Osborne, 6 
 M. & G. (46 E. C. L. R.) 771. In the case of Bermon v. Woodbridge, Doug. 
 788, the whole of plaintiff's case rested on the testimony of one witness. Lord 
 Mansfield said that the jury might credit what the witness said for the plain- 
 tiff, although they disbelieved what he stated for the defendant ; but that if 
 they did not believe his testimony for the plaintiff, the rest of his testimony 
 was clearly immaterial, for he was not to be believed at all, and so there 
 was no case proved by the plaintiff; and see Partington v. Butcher, 6 Esp. C. 
 66; Vol. II., tit. Limitations. 
 
 " Supra, p. 445.
 
 PART III. 
 
 OF PROOFS. 
 
 Having thus treated of the general principles which regulate the 
 admissibility of evidence, and also of the nature and qualities of the 
 different instruments of evidence, a more interesting branch of the 
 subject, the application of these principles and instruments to the 
 proof of issues generally and particularly, is now to be considered. 
 
 It is to be recollected that every verdict is compounded of law 
 and fact: of the facts, as ascertained by the finding of the jury; of 
 the law, as expounded by the judge, with relation to the evidence, 
 and applied by the jury to the facts. The trial is the process by 
 which the facts are thus ascertained and the law applied. 
 
 In this proceeding it is the business of the parties to supply the 
 necessary evidence; it is the province of the court to pronounce on 
 the legal effect of the evidence ; and it is the duty of the jury to 
 decide upon the facts, and to apply the law.^ Ilence naturally result 
 three distinct subjects for consideration : and first, as to the evidence 
 to be supplied by the parties. 
 
 CHAPTER I. 
 EVIDENCE TO BE SUPPLIED BY THE PAKTIES. 
 
 This branch of the division suggests two principal questions for 
 inquiry : first, upon whom the proof of an issue *or fact is in- r^ror-i 
 cumbent ; secondly, as to the nature, quality and quantity 
 of the evidence to be adduced, in general and particular. 
 
 ' Or by a special verdict to fiad the facts, so as to enable the court afterwards 
 to apply the law.
 
 585 PROOFS. 
 
 1st. Upon whom the proof is incumbent.'' 
 
 The general rule is in conformity with the suggestions of natural 
 reason and a principle of obvious convenience ; that the party who 
 alleges the affirmative of any proposition shall prove it ;" for a nega- 
 r*5861 *'^^ ^'^^^ ^°* admit of the *simple and direct proof of which 
 an affirmative is capable.^ And this is conformable Avith the 
 maxim of the civil law, " Ui incumbit prohatio qui dieit, non qui 
 
 ^ The question frequently involves that of the right to begin, which is treated 
 of, 2)osf, p. 595, et seq. 
 
 ' B. N. P. 298; Yin. Abr., Ev. (S. a.) ; Litt. R. 36; Gilb. Law of Ev. 148. 
 Prohatio incumbit ei qui allegat ; negantis autem per rerum naturam nulla est 
 probatio : Dig. lib. 22, tit. Probat. See Catherwood v. Chabaud, 1 B. & C. (8 
 E. C. L. R.) 150 ; where it was held, that a defendant, who pleaded an agree- 
 ment between the plaintiffs and the defendant, conditional on its being assented 
 to by all the creditors of the defendant, was bound to prove the assent of all 
 the creditors. On an agreement by the defendant to pay £100 if the plaintiff 
 would not send herrings for one twelvemonth to the London market, and in 
 particular to the house of /. and A. M., the plaintiff proved he had sent no 
 herrings during the twelvemonth to the house of J. and A. M. : held sufficient 
 to entitle him to recover : no proof being given that he had sent herrings 
 within that time to the London market : Calder v. Rutherford, 3 B. & B. (7 E. 
 C. L. R.) 302. The question upon whom lies the onus of proof is often, though 
 not always, identical wnth the question who ought to begin. This latter ques- 
 tion will be discussed presently, and the cases upon it will throw considerable 
 light upon the former question. In many cases in may be resolved by the in- 
 quiry, who would be entitled to the verdict if no evidence were given? In the 
 case of Atnas v. Hughes, 1 M. & Rob. 464, Alderson, B., observed, that "Ques- 
 tions of this kind are not to be decided by simply ascertaining on which side 
 the affirmative in point of form lies ; the proper test is, which party would be 
 successful if no evidence at all were given ?" In that caset he declaration alleged 
 a breach of contract in not embossing calico in a workmanlike manner ; the 
 plea, on which issue was joined, alleged that the defendant did emboss the 
 calico in a workmanlike manner. And it was held that the plaintiff ought to 
 begin, for if no evidence were to be given on either side, the defendant would 
 be entitled to the verdict, as it was not to be presumed that the work Avas badly 
 executed. In replevin, or in other cases where the issue lies on the plaintiff, 
 he is compelled to begin: Curtis v. Wheeler, 1 M. & M. (22 E. C. L. R.) 493. 
 Where the plaintiff in his plea to cognisances, stated facts amounting to no7i 
 tenuit, yet the affirmative being on him, it was held that he was entitled to 
 begin : Williams v. Thomas. 4 C. & P. (19 E. C. L. R.) 234. 
 
 •^ Thus, upon an issue to which the plaintiffs alleged that certain goods were 
 not their property, and the defendant alleged they wore their goods, the onus 
 of the proof was held by Lord AI)inger to be on the defendant : Hudson v. 
 Brown, 8 C. & P. (34 E. C. L. R) 774. 
 
 ' The burden of proof is always with the party who takes the affirmative in 
 pleading: Phelps v. Hartwell, 1 Mass. 71 ; Phillips v. Ford, 9 Pick. 39; Loring
 
 ONUS OF PROOF. 586 
 
 The proof is of course to be governed by the issue ; that is, some 
 matter of fact alleged by one party and denied by the other, on the 
 existence or non-existence of ■which the claim or defence is rested. 
 
 The p:irty who alleges the affirmative of such a fact is bound to 
 prove it, otherwise it remains unproved and the party fails in his 
 claim or defence. So, if no evidence be given on cither side. And 
 as the party alleging and bound to prove the affirmative would fail, 
 if no evidence were given ; so, conversely, if it appeared that in case 
 no evidence were given either party would fail, the conclusion would 
 show that he was the party on whom the onus of proof lay. This, 
 however, is but the same position in a different shape ; the question, 
 AV^ho Avould fail if no evidence were given? must be decided by the 
 answer to the further question. Who alleges, and is bound to prove 
 the affirmative? 
 
 It may then be regarded as a general rule, that a party who alleges 
 an affirmative must prove it according to the rule of the civil law ; 
 but doubt sometimes arises on the question, who does, in legal con- 
 sideration, allege the affirmative. It is to be remarked that a law 
 operates by annexing some defined consequence to some defined state 
 of things. That to put the law in motion it is, of course, essential 
 that the suitor should establish such a state of things as warrants 
 such legal interference; the law, till that be done, remains quiescent, 
 neither presuming the existence of a right until it be shown to exist 
 by competent means, nor the existence *of any fact essential 
 to the right. So, although the law is quiescent until liability L •- J 
 be proved, yet when legal liability has once been established, the law 
 does not discharge a party from a legal liability proved to exist, un- 
 less such discharge be also established by like means. Hence, again, 
 as the law will not presume such a discharge, neither will it presume 
 any fact or state of things essential to such discharge, and not estab- 
 lished by sufficient proof. When therefore issue is joined between 
 the parties, the question as regards the onus of proof is. Which of 
 them has alleged the existence of a state of things essential to his 
 
 V. Steineman, 1 Met. 204 ; Costigan v. Railroad Co., 2 Denio 609 ; Glvens v. 
 Tidmore, 8 Ala. 746; Neal v. Fesperman, 1 Jones (N, C.) Rep. 446; McClure 
 V. Piirrell, 6 Ind. 330. The true test to determine where is the burden of proof, 
 is to consider which party would be entitled to the verdict if no evidence were 
 oflFered on either side ; for the burden of proof lies on the party against whom 
 in such case the verdict ought to be given : Vieths v. Hagge, 8 Clarke 163. As 
 to burden of proof, see White v. Howard, 52 Barb. 294 ; McKinney, v. Slack, 4 
 Green 164 ; Winans v. Winans, Ibid. 220; Weaver v. Aufour, 30 La. Ann. 1 ; 
 Church V. Fagin, 43 Mo. 123 ; Soulhtvorth v. Hoag, 42 III. 446 ; Oaks v. Harri- 
 son, 24 Iowa 179 ; Burton v. Mason, 26 Ibid. 392.
 
 587 PROOFS. 
 
 claim or defence ? if lie does not establish it by competent means it 
 remains unproved, and ex hypothese that party must fail.' 
 
 Thus the proof of an allegation of deficiency lies on the party who 
 alleges it, although it imply a negative, for this is not to prove a 
 mere negative, but to prove an actual relation in point of magnitude 
 or value. Hence upon an issue, whether land assigned for payment 
 of a legacy was deficient in value, it was held that the party who 
 alleged that it was deficient was forced to prove it.^ 
 
 It is to be observed, concerning these positions, that the rule 
 that the party who alleges the affirmative is bound to prove it is not 
 correct in principle, unless by alleging the affirmative is to be under- 
 stood the allegation of any new matter or relation, the truth of which 
 is essential to the allegant's case. If affirmative merely meant 
 affirmative in form, the eff"ect would frequently be* directly at vari- 
 ance with the clear principles just adverted to. The rule of the civil 
 law indeed by its latter branch, negantis aufem proprie 7iulla est pro- 
 batio, seems as if it had been intended to show the principle on which 
 the onus prohandi is thrown on the affirmant, as though the rule 
 were founded in necessity. This is not true; the proof of a negative, 
 although attended with inconvenience and difficulty, is yet practicable, 
 and although convenience may be properly used as an *argu- 
 L -" ment for relieving from the burden of a negative proof in 
 ° Berty v. Dormer, 12 Mod. 526. 
 
 ^ If the defendant would show matter in avoidance, after a prima facie case 
 has been made out by the plaintiff, the burden of proof shifts upon him : 
 Gray Y. Gardner, 17 Mass. 188 ; Attlehorough v. Middlehorongh, 10 Pick. 378; 
 Davis V. Jenney, 1 Met. 221 ; Poivers v. Russell, 13 Pick. 69 ; McGregory v. Pres- 
 cott, 5 Cush. 07 ; Zerbe v. Miller, 4 Harris 488 ; Yarnell v. Anderson, 14 Mo. 
 619; Burrelly, Snell, 5 Fos. 474; Brown v. Woodbury, 5 Ind. 254; Seavey v. 
 Dearborn, 19 N. 11. 351. A party setting up the statute of limitations as a bar 
 to a claim of property, has the burden of showing an adverse possession in 
 himself during the period required by the statute : Stewart v. Cheatham, 3 
 Yerg. 60; see Taylor v. Spears, 1 Eng. 381 ; Dngyan v. Cole, 2 Tex. 381. 
 Where, to avoid the operation of the statute of limitations, the complainant 
 relies upon the fraudulent concealment of the cause of action, the burden is 
 upon him to prove such fraudulent concealment: Reeves v. Dougherty, 7 Yerg. 
 222. Where an article is sold, with a warranty or a representation amounting 
 to a warranty as to its quality, and in an action by the seller to recover the 
 price, the buyer relies upon a breach of the warranty or the falsity of the rep- 
 resentation, to reduce the amount of his lial)ility, the burden of proof is on 
 him to show that the quality of the article does not correspond with the war- 
 ranty or representation : Dorr v. Fisher, 1 Cush. 271. If a party would avoid 
 the effect of a promise made by him, by insisting that it was made in ignorance 
 of material facts, the burden rests upon him of proving that he was thus 
 ignorant : Burton v. Jilinit, 23 Vt. 151.
 
 ONUSOF PROOF. 588 
 
 particular defined instances, it supplies no certain ground for a gen- 
 eral rule. 
 
 It is to be carefully remarked, that although as a general rule the 
 law neither presumes liability or discharge from liability, nor any 
 fact or state of things essential to such liability or discharge, not 
 established by competent means, the law does not, in the absence of 
 proof of a negative where it is material to a right, *^ assume the 
 affirmative to be true : it is, on the contrary, frequently essential to 
 the establishment of right to prove the negative of facts. *^ Thus, if 
 A. claim as heir at law of B. his elder brother, it is essential to 
 prove, not only the death of B., but that he died without leaving 
 issue ; till this be proved his title as heir is not shown, and the nega- 
 tive is not to be presumed, as the law will not, from the mere absence 
 of evidence, infer or assume that the elder brother died Avithout law- 
 ful issue, as that would be to presume a state of things to exist in 
 support of the claimant's title ; that is, in truth, to presume title. 
 
 The operation of this general principle may be carried further. 
 It seems that the law will not infer the existence of a state of things 
 involving a negative from the mere absence of evidence to prove the 
 affirmative, even in a case where such state of things is the same 
 with that already admitted to exist, and where consequently some 
 presumption in its favor might be made as to its continuance. This 
 conclusion seems to be warranted by the general principle r^coq-i 
 *of law just adverted to, but it is also supported, if support 
 be necessary, by the rule that every fact is to be proved by the best 
 evidence that the case reasonably admits of, and the consideration 
 that actual evidence of the state of things, at any point of time, must 
 usually be more satisfactory than a mere negative inference that no 
 change has occurred, because none is proved to have occurred. 
 
 Although the general principles may require proof of a nega- 
 tive in the sense explained, they relieve from proof of the negative 
 of any matter, where the existence of the affirmative is essential to 
 
 ^ Or .1 discharge ; thus, in an action on a policy of insurance, the defence to 
 which is the non-communication of a material fact, it is not sufficient for the 
 defendant to prove the existence and knowledge of the plaintiff of that fact, but 
 he must give some evidence that it was not communicated to him : EJkiii v. 
 Janson, 13 M, & AV. 655. 
 
 ^ Thus, in ejectment on a forfeiture alleged to have been incurred by breach 
 of a covenant to insure in some office in or near London, some proof of the omis- 
 sion to insure must be given by the plaintiff, and a refusal to produce the receipt 
 for the premium is not sufficient: Doc dem. Bridger v. Whitehead, 8 Ad. & E. 
 (35 E. C. L. R.) 571.
 
 589 PROOFS. 
 
 exempt or discharge the adversary from some duty or liability 
 proved upon him ; for the law, as has been seen, will not presume 
 discharge from liability, nor any fact essential to such discharge, 
 and in thus reo-ardino; the charge or duty as continuing regards the 
 negative as true.^ 
 
 This rule, thus strictly and directly deduced from the general 
 principle, is aided by considerations of convenience. Proof is ex- 
 pected from the party more likely than his adversary to be cogni- 
 sant of the fact and to be possessed of the means of proof; and it is 
 usually far more easy for that party to prove the affirmative than 
 for the other to establish the negative. The declaration showing 
 how a debt became due avers that it has not been paid. It is sufficient 
 as regards the evidence, if the plaintiff prove the facts which show 
 the defendant's liability to pay the debt ; that liability being proved, 
 the law requires the defendant to discharge himself by competent 
 proof, and in default regards the negative as established.'' 
 
 In an action of debt for sporting without a qualification, it was 
 sufficient for the plaintiff to prove the fact of sporting, for every 
 person was declared to be liable to the claim, unless he had a quali- 
 
 ^ So upon a plea of set-ofiP, on a bond conditioned for the payment by the 
 plaintiff of an annuity to a third person, alle^jing such non-payment, the onus 
 jJi'obandi is on the plaintiff: Penny v. Foy., 8 B. & C. (15 E. C. L. R.) 11. 
 
 ' Where a public conveyance is overturned or breaks down without any appa- 
 rent cause, the law will imply negligence, and the burden of proof will be on 
 the owners to rebut that legal presumption : Ware v. Gay, 11 Pick. lOG. Proof 
 of injury to a passenger on a railroad is prima facie evidence of negligence 
 which the company must rebut: Zemp v. Railroad Co., 9 Rich. (Law) 84; 
 Terry v. Railroad Co., 22 Barb. 574. AVhere the plaintiff alleges damage, in 
 consequence of the defendant's negligence in driving on the highway, the bur- 
 den of proof is on the plaintiff to show ordinary cai*e and diligence on his own 
 part and negligence on the part of the defendant: Lane v. Cromhie, 12 Pick. 177 ; 
 Tourtillot v. Bosebrook, 11 Mete. 460; Hyde v. Jamaica, 1 Williams 443; Moore 
 V. Central Railroad Co., 4 Zabr. 268 ; Holbrook v. Railroad Co , 2 Kern. 236 ; 
 Dyer v. Tallcott, 16 111. 300; Railroad Co. v. Fay, Ibid. 558; Griffin v. Keio 
 York, 5 Sold. 456 ; Dickey v. Telegraph Co., 43 Me. 492. In an action against 
 a city corporation for injuries sustained by the plaintiff in consequence of a 
 grating over a vault in a sidewalk giving way beneath' him, it was held, that 
 the plaintiff was bound to show affirmatively that there had been a neglect of 
 duty by the corporation : McGinity v. Neiv York, 5 Duer 674; Owings v. Jones, 
 9 Md. 108. In case against a surgeon for an injury sustained by reason of 
 alleged unskilful and careless treatment, the burden of proof is on the plaintiiT 
 to show a want of proper knowledge and skill ; but it is not requisite to prove 
 it l)y evidence independent of and unconnected with the evidence of the treat- 
 iricrit of the case in question: Leighton v. Sargent, 11 Fost. 119.
 
 ONUS OF PROOF. 590 
 
 fication, and to presume one would 1)e contrary *to the ffen- ^ ,„^^ 
 
 • . r 5901 
 
 eral principle.' Where the declaration states an unlawful *- -^ 
 
 seizure of his goods by the defendant, it is sufficient if the plaintiff 
 show affirmatively the fact of seizing his goods, for the facts show 
 that the defendant was amenable, unless he had lawful cause for 
 seizure, and if he show none, none can be presumed for him'' who 
 alleges and is bound to prove the affirmative.' 
 
 Hence it is a general rule that the onus probandi lies upon the 
 party who seeks to support his case by a particular fact, of which 
 he is supposed to be cognisant.' A defendant cannot set-off cash- 
 notes of the bankrupt in an action by the assignees, without proof 
 
 ' R. V. Stone, 1 East 639 ; Spiers v. Parker, 1 T. R. 144 ; B. v. Jarvis, 1 Burr. 
 148 ; B. V. Tmner, 5 M. & S. 206 ; see Frontine v. Frost, 3 B. & P. 305 ; 8 Ad. 
 & E. (35 E. C. L. II.) 575, 576 ; supra, n. (c). Where a party before a justice 
 admits the trading as a hawker or pedlar, it is incumbent on him to prove that 
 he had a license : B. v. Smith, 3 Burr. 1475. So on a charge of selling ale 
 without a license : B. v. Hanson, Paley on Conv. 176, 3d edit. In such a case 
 the defendant suffers not the slightest inconvenience from the general rule, for 
 he can immediately produce his license ; whereas, on the other hand, the prose- 
 cutor would be put to great inconvenience ; per Abbott, C. J., Ibid. ; and see 
 Apothecaries Company v. Bentley, Ry. & M. (21 E. C. L. R.) 159 ; where Abbott, 
 C. J., held that the defendant in an action for penalties for practising as an 
 apothecary must prove his qualification. 
 
 '' Aitcheson v. Madock, Peak. C. 218 ; and see Evans v. Birch, 3 Camp. 10. 
 
 ' Per Ashurst, J., 6 T. R. 57, post ; B. v. Turner, 5 M. & S. 21 1 ; per Holroyd, 
 J., in B. V. Burdett, 4 B. & Aid. (6 E. C. L. R.) 140 ; Catherwoodv. Chabaud, 1 
 B. & C. (8 E. C. L. R.) 150 ; see Booth v. Millns, 15 M. & W. 669. On a question 
 whether a lease granted by a tenant for life, under a power to grant leases, con- 
 tained a reservation equal to or greater than that in a pattern lease produced, 
 in an action of ejectment by the remainderman, it is incumbent on the party 
 who claims under the lease to prove the fact : Doe v. Grazebrooke, 4 Q. B. (45 
 E. C. L. R.) 406. 
 
 ' In an indictment for keeping a ferry without license, the burden is upon the 
 defendant to show that he has a license, without the State's offering any evi- 
 dence to show the contrary : Wheat v. The State, 6 Mo. 455. In a qui tarn action 
 against a clerk, for issuing a license to marry a female under age, without the 
 consent of the parent or guardian, the plaintiff is not bound to prove the nega- 
 tive averments, that such consent was not given. The record of the fact would 
 be prima facie evidence of it, and being in the possession of the clerk, it is his 
 duty to produce it, without any evidence by the plaintiff to support his defence : 
 Blann v. Beat, 5 Ala. 357. So, in a similar action to recover a statute penalty 
 for marrying minors without the consent of their parents or guardians, the 
 burden is on the defendant to show such consent : Medlack v. Brown, 4 Mo. 
 379.
 
 590 PROOFS. 
 
 that they came into his possession before the bankruptcy." A party 
 who pleads infancy" or coverture must prove it." 
 
 *To a plea of infancy the plaintiff replied a promise after 
 L -I the defendant had attained his age ; and it was held to be 
 sufficient for the plaintiff to prove a promise, and that it lay on the 
 defendant to prove that he was not of age.^ 
 
 In an action on a policy of insurance on goods, the plaintiff having 
 proved a barratrous act on the part of the master, it was objected 
 that it was incumbent on him also to prove that the master was not 
 the owner or freighter ; but it was held that proof of the affirmative, 
 if it were true, lay on the defendant. "^ 
 
 There are, however, certain presumptions which the law makes rela- 
 tively to particular things and circumstances, which throw the onus 
 of proof very frequently upon the party who, but for the presumption, 
 would not be required to sustain it. This is the result of that maxim 
 of our law, Stabitur prcesumjjtioni donee probetur in contrarium, and 
 hence in general, whenever the law presumes the affirmative, it lies 
 on the party who denies the fact to prove the negative ;'" and it is suffi- 
 cient to prove a fact from Avhich the rest of the affirmative allegation, 
 in the absence of any other evidence, is a presumable consequence : 
 thus, for example, if the defendant by his plea allege that there was 
 no *consideration for a bill of exchange or promissory note 
 L *^-' on which an action is brought, the onus probajidi lies on 
 him, for the law presumes 'prima facie that there was a good consid- 
 
 ^ Dichson v. Evans, 6 T. R. 57. 
 
 ° Berty v. Dormer, 12 Mod. 526 ; R. v. Txmier, 5 M. & S. 206. 
 
 Cannam v. Farmer, 2 Car. & K. (61 E. C. L. R.) 746 ; 3 Ex. 698. 
 
 P Bortluvick v. Carruthers, 1 T. R. 648 ; and so ruled by Holroyd, J., in Bates 
 V. Wells, Lane. Sp. Ass. 1822; Hartley v. Wharton, 11 A. & E. (39 E. C. L. R.) 
 934. Where the party charged Avith bigamy was an infant at the time of the 
 first marriage, which was by license, and the register did not state any con- 
 sent by parents and guardians, it was held that some evidence of consent 
 should be given on the part of the prosecution : Butler^ s case, Russ & Ry. Cr. 
 C. 61. 
 
 " Ross V. Hunter, 4 T. R. 33. 
 . ' Gilb. Law of Ev. 148, cited by Lord Ellcnborough, 1 East 200. In an 
 action by A. against B. for injury to a reversion of a copyhold estate, ^.'s re- 
 version being put in issue by the pleadings, evidence was given of receipt of 
 rent by him from the tenant in possession, and B. proved a surrender of the 
 estate in question, twenty-one years before the receipt of such rent by A., 
 to a stranger. This evidence did not throw the burden upon A. of proving 
 a reconveyance afterwards of such estate to him, Daintree v. Brocklehurst, 3 
 Ex. 207.
 
 ONUS or PROOF — LEGAL PRESUMPTION. 592 
 
 eration.^ If, however, the defendant, in an action on a bill or note, 
 proves' it to have been fraudulent or *illegal in its inception, 
 the law then presumes that it will be transferred without ■- -" 
 consideration ; thus the burthen of proof is transferred to the endorsee." 
 
 ' Lacey v. Forrester, 2 C, M. & 11. 59 ; and see Percival v. Frampfon, 2 C, 
 M. & R. 180 ; Mills V. Odd;/, 6 C. & P. (25 E. C. L. R.) 728 ; Easfonv. Pratchett, 
 1 C, M. & R. 798 ; Mills v. Barber, 1 M. & W. 427 ; Smith v. Martin, 9 M. & 
 W. 304. 
 
 Assumpsit by the endorsee ai^ainst the acceptor of a hill ; plea, that it was ac- 
 cepted for the accommodation of the drawer, and that he endorsed it to another 
 party without consideration, who endorsed to the phiintiff without consideration ; 
 replication, de injuria ; it lies on the defendant to show that no consideration 
 was given by the plaintiff: Brown v. Philpot, 2 M. & Rob. 255. 
 
 * It has been said that this presumption must be founded on proof and does 
 not arise by inference from facts alleged and not denied by the pleadings: thus, 
 in the case of Edmonds v. Groves, 2 M. & W. 642, which was an action by the 
 endorsee against the maker of a promissory note, the defendant pleaded that 
 the consideration for the note was money lost at gaming, that it was endorsed 
 to the plaintiff with notice, and without consideration for the endorsement^ 
 The plaintiff replied that the note was endorsed to him without notice, and for 
 a valuable consideration. At the trial, each party declining to give any evi- 
 dence. Lord Abinger directed a verdict for the plaintiff, giving the defendant 
 liberty to move to enter a nonsuit. A motion was made on the ground that the 
 replication admitted the original defect of consideration, and that therefore the 
 o/r»,?was thrown on the plaintiff. Lord Abinger held, that as the fact of notice 
 of the gaming transaction was involved in the issue, it was at all events incum- 
 bent on the defendant to prove that fact, in order to call on the plaintiff for 
 proof of a new consideration. He declined to give any opinion upon the effect 
 of an admission on the record upon the ohms prohandi of an issue already 
 joined. Alderson, B., said that "an admission on the record is merely a waiver 
 of requiring proof of those facts which are not denied, the party being content 
 to rest his claim on other facts in dispute ; but if any inferences are to be drawn 
 by the jury, they must have the facts proved like any others." In the above 
 case, if the plaintiff took the note with notice of the original vice, as the 
 defendant alleged, and seems clearly to have been bound to prove, no title could 
 be gained, and consequently there could be no question as to any new con- 
 sideration ; and see Bennion v. Davison, 3 M. & W. 179 ; per cur. 9 M. & W. 
 304. But in Bingham v. Stanley, 2 Q. B. (42 E. C. L. R.) 117 ; the court held 
 that the implied admission upon the record of fraud, or illegality in the 
 inception of the bill or note, was sufficient to require the endorsee to prove 
 consideration ; and see per Alderson, B., 13 M. & W. 144; also post, tit. Pre- 
 sumptions. 
 
 ° Bailey v. Bidivell, 13 M. & W. 73. But there is no such presumption either 
 that it was taken with notice, or after maturity ; thus, in an action by a third 
 endorsee against the maker of a note, the plea alleged an action by the second 
 endorsee, a reference under an order of Nisi Prius, and a fraudulent transfer to 
 the plaintiff pending the reference, the plaintiff having knowledge of the fraud ; 
 issue being taken on the fact of such knowledge, the defendant was directed to
 
 593 PROOFS. 
 
 So Avhere the law raises a presumption as to the continuance of life;" 
 the legitimacy of children born in wedlock '/ the satisfaction of a 
 debt,^ the onus is created of rebutting it in the first instance.^ 
 
 Wliere the negative involves a criminal omission bj the party, and 
 consequently where the law, by virtue of the general principle, pre- 
 sumes his innocence, the affirmative of the fact is also presumed.^ 
 
 And therefore upon an information against Lord Halifax for 
 refusing to deliver up the rolls of the Auditor of the Exchequer, the 
 Court of Exchequer put the plaintiff upon proof of the negative." 
 In an action for putting combustible matter on board the plaintiff's 
 ship, without giving notice of its contents, whereby the ship was 
 destroyed, it was held that the plaintiff was bound to prove a negative 
 which was essential to his case, viz., the want of notice.** Thus, also, 
 in a suit for tithes in the Spiritual Court, where the defendant had 
 pleaded that the plaintiff had not read the Thirty-nine Articles, the 
 
 court required the defendant *to prove the negative. "^ So 
 
 r*5941 • • • • • 
 
 •- -'in Tlie King v. Hawkins, where the objection, upon an 
 
 information in the nature of a quo warranto, was, that the defendant 
 
 had not taken the sacrament within a year, the court held that the 
 
 presumption was that he had conformed to the law.^ Where a 
 
 begin and prove such knowledge : Smith v. Martin, 1 Dowl. N. S. 418 ; 9 M. & 
 W. 304 ; May v. Chapman, 16 M. & W. 355. 
 
 =' Doe v. Nejyean, 5 B. & Ad. (27 E. C. L. R.) 86 ; tit. Death, Pedigree. 
 
 y Vol. II., tit. Bastardy. 
 
 ' Vol. II., tit. Payment. 
 
 » B. N. P. 298. 
 
 *" Williams v. The East India Company, 3 East 192. 
 
 •= Monke v. Butler, 1 Roll R. 83 ; see also R. v. Rogers, 2 Camp. 654 ; Poivel 
 V. Milhank, 2 W. Bl. R. 851 ; Lord Halifax's case, B. N. P. 298 ; R. v. Coombs, 
 Comb. 57. 
 
 ^ 10 East 211, and per Bayley, J., R. v. Twyning, 2 B. & Aid. 388. Upon an 
 indictment under 42 Geo. III. c. 107, s. 1 (now repealed by 7 & 8 Geo. IV. c. 
 27, see c. 29), which makes it felony to course deer in any enclosed ground 
 without the consent of the owner, it was held that it was necessary to prove 
 
 ^ Where a marriage de facto is proved, the presumption is that the marriage 
 was conducted according to law and the burden of proof is on the party denying 
 it: Raynham v. Canton, 3 Pick. 393. 
 
 ■^ Where the plaintiff in ejectment claims the right to enter upon lands for 
 the breach of a condition subsequent, the burden is upon him to prove the 
 breach, though a negative ; but in such case slight proof would be sufficient 
 prima facie: O' Brien v. Doe, 6 Ala. 787. The averment of neglect of official 
 duty must be supported by some pi'oof by the party making it, though very 
 little evidence will sufiice to shift the burden of proof: Dobbs y. Justices, 17 
 Ga. 024.
 
 ONUS OF PROOF — LEGAL PRESUMPTION. 594 
 
 woman, twelve months after licr husband had last been heard of, mar- 
 ried again, and the husband had never afterwards been heard of, upon 
 the question as to the settlement of the children of the second mar- 
 riage, the court held that the justices had done right in presuming 
 the legitimacy of the children, in the absence of any proof, except 
 the usual presumption, that the first husband was living at the time 
 of the second marriage.® 
 
 So where the question arises, in a criminal case, whether the 
 prisoner's examination was taken down in writing before the magis- 
 trate under the statute, it is incumbent on the prosecutor to give 
 negative evidence to show that it was not taken down, for otherwise 
 it will be presumed that the magistrate did his duty in taking the 
 examination in writing, as the statute directs/ 
 
 *\Vherever also it has been shown that the case falls r^cqs-i 
 within the scope of any general principle or rule of law, or 
 the provision of any statute, whether remedial or even penal, ^ it then 
 lies on the opposite party to show by evidence that the case falls 
 Avithin an exception or proviso. *" So it is incumbent on a person who 
 alleges a particular status of an individual to prove it ; thus it lies on 
 a defendant who seeks to bring a plaintiff within an Act, which, if 
 the defendant resided within a particular district, subjects the plain- 
 tiff to a nonsuit, to prove his residence at the time of the action 
 brought, by particular evidence of the fact ; general evidence of 
 recent residence there is not sufficient.' 
 
 the negative of such consent: R. v. Bogers, 2 Camp. C. 654; and see B. v. 
 Hazy, 2 Car. & P. (12 E. C. L. R.) 458. There the negative was part of the 
 description of the offence. In the report of the above case, it seems erroneously 
 (see R. V. Allen, 1 Mood. C. C. 154) to have been held necessary to negative 
 the consent by the testimony of the owner himself. In order to obviate the 
 necessity for any such proof, various statutes have been provided that the bur- 
 then of proving consent or lawful excuse, or other like matter, shall be incumbent 
 on the defendant. These are too numerous to specify. 
 
 * R. v. TtV'i/ning, 2 B. & Aid. 386 ; and see Butler s case, Russ. & Ry. Cr. C. 
 61, p. 591. But see B. v. Earhorne, 2 Ad. & E. (29 E. C. L. R.) 540 ; and see 
 Settlement. 
 
 ^ See Vol. II., tit. Admission. ^ See supra, p. 590, note (i). 
 
 ^ Doe V. Bingham, 4 B. & Aid. (6 E. C. L. R.) 672 ; Doe v. Hawthorn, 2 B. & 
 Aid. 101. Where a plaintiff, for th« purpose of avoiding a conveyance of land, 
 has shown it to be for a charitable use, it lies on the defendant to bring himself 
 within the exception : 2 B. & Aid. 101. In this respect the rule of evidence cor- 
 responds with the rule of pleading: 12 M. & W. 88 ; 16 M. & W. 615. 
 
 ^ Jones v. Kenrick, 8 B. & C. (15 E. C. L. R.) 337; and see Tyrrell v. Holt, 
 1 Barnard, 3 Geo. I. ; Vin. Ab. Ev., Sa. 7 ; Bawlins v. Desboroiigh, 2 M. & Rob. 
 70, ^os^
 
 595 PROOFS. 
 
 Upon an appeal against an order of removal it is incumbent on 
 the respondents to prove their case, by establishing a settlement in 
 the appellant's parish. Upon an appeal against a poor's-rate, on 
 the ground that the appellant has no rateable property within the 
 parish, the onus is on the respondents to prove that he has such 
 property'' there ; but if the appellant object merely to the quantum 
 of the rate, be is to prove the inequality of such rate.' Upon an 
 appeal against an order of bastardy, the respondents must begin.™ 
 
 The discussion of the question of the onus of proof naturally 
 leads us to the consideration of a question Avbich seems formerly to 
 have been regarded as identical Avith it: viz., the right to begin." 
 r+'^Qfil "^^® decisions upon this ^subject have been numerous and 
 conflicting, and it is certainly difficult to lay down rules for 
 guidance in all cases. The older decisions, however, though no 
 longer recognized as authorities upon the practice in this respect, 
 are not unworthy of note, as affording the means of determining the 
 duties of the parties with reference to proof. Formerly, it seems 
 to have been considered that the defendant was in all cases entitled 
 to begin, where the 0)ius 'probandi lay upon him, notwithstanding 
 the technical form of the pleadings, and although the proof of the 
 
 "■ 4 T. R. 475. 1 Ibid. . 
 
 " li. V. Knill, 12 East 50. 
 
 " The question who shall begin is not merely material as a rule of form and 
 order, but as regulating the right to reply. It is considered in practice, and 
 perhaps with reason, that it gives a party an advantage to have the opening and 
 reply, for the purpose of having the first and also the latest opportunity of 
 making an impression on the jury. Much evidence, no doubt, is often sacrificed 
 to obviate or attain this advantage ; for a defendant is in general disinclined to 
 give the opportunity for a reply which may disturb the arguments which he has 
 used, and also because he may frequently doubt whether he can sufficiently de- 
 pend on the evidence which he is required to state to the jury, without having 
 any opportunity of afterwards commenting on variances between the facts as 
 stated and proved. Notwithstanding the importance of the question, whether 
 the one party or the other has the right to begin, the decision of the point rests, 
 in the first instance, with the Judge at Nisi Prius, and the Court above has re- 
 fused, without good reason, to interfere with his decision ; see Phil, on Ev., vol. 
 i. 833 ; Hare v. Munn, M. & M. (22 E. C. L. R.) 241 ; Fowles v. Coster, Ibid. ; 
 Burrell v. Nicholson, 6 C. & P. (25 E. C. L. R.) 202 ; 1 M. & Rob. 304 ; Williams 
 V. Davies, 1 Cr. & M. 464 ; Scott v. Letvis, 7 0. & P. (32 E. C. L. R.) 347 ; Brand- 
 ford v. Freeman, 5 Ex. 734 ; Edimrds v. Matthews, 16 L. J., Ex. 291. But if 
 his decision has done clear and manifest wrong, [Uuckman v. Fernie, 3 M. & W. 
 517, corrected 5 Ex. 737 ; Geuch v. lugall, 14 M. & W. 95), or some substantial 
 inconvenience aflecting the trial of the issue has been sustained, the Court will 
 grant a new trial : Ashbij v. Bates, 15 M. & W. 589 •, Doe dein. Bather v. Brayne, 
 5C. B. (57 E. C. L. R.) 655.
 
 ONUS OF PROOF — THE RIGHT TO BEGIN. 596 
 
 amount of his damages lay upon the plaintiif." Thus, where in 
 action of trespass quare clausum fregit, the defendant as to the force 
 and arms and whatever is against the peace, &c., pleaded not guilty; 
 and as to the residue, a justification under a right of way, the de- 
 fendant was held to be *entitled to begin and to reply. ^ So r^-.rqjn 
 in an action for a libel, where the only pleas alleging facts in 
 justification, on which issues were joined ;'^ or in trespass, where the 
 only plea consisted of matter of justification, alleging an act of bank- 
 ruptcy to have been committed by the plaintiff, on which issue was 
 joined." 
 
 A different rule has since been stated as a resolution of the 
 judges. In one report,^ Tindal, L. C. J., is stated *to have r^rqon 
 expressed himself as follows : " The judges have come to a 
 
 • Doe V. Letcis, 1 C. & K. (47 E. C. L. R.) 122. 
 
 P Jackson v. Hesketh, 2 Stark. C. (3 E. C. L. R.) 520 ; per Wood, B., and Bay- 
 ley, J. ; the general issue had been pleaded originally, but had been withdrawn 
 during the assizes (the cause was in the county palatine court), for the purpose 
 of giving the defendant's counsel a right to reply. So in Hodges v. Holder, 
 3 Camp. C. 366. And these decisions do not appear to be affected by the new 
 rule mentioned below, substantial damages not being sought : see Bastard v. 
 Sjnith, 2 M. & Rob. 129. 
 
 1 Cooper V. Wakely, Moo. & M. (22 E. C. L. R.) 248. So in Bedell v. Eussell, 
 R. & M. (21 E. C. L. R.) 293 ; where, to an action of battery, the defendant 
 justified as captain of a ship in which the plaintiff was mariner, and issue being 
 joined on the replication de injuria, it was held that the defendant was entitled 
 to begin. 
 
 ■■ Cotton V. James, Moo. & M. (22 E. C. L. R.) 273 ; 3 C. & P. (14 E. C. L. R.) 
 605. 
 
 ^ Carter v. Jones, 5 C. & P. (24 E. C. L. R.) 641. The history of this resolu- 
 tion is thus given by Lord Denman, C. J., in Mercer v. Whall, 5 Q. B. (48 E. 
 C. L. R. ) 447: — " Soon after I was raised to the bench this ruling [i. e. Lord 
 Tenterden's, in Cooper v. Wakley), became the subject of discussion among the 
 judges. Many of them attended at my house to consider it; and the following 
 short resolution was drawn up and signed by those present, and afterwards 
 adopted by Lord Lyndhurst, C. B., Bayley, B., Taunton, J., and myself: 'In 
 actions for libel, slander, and injuries to the person, the plaintiff shall begin, 
 although the affirmative issue is on the defendant.' I possess this document, 
 signed with the initials of the present C. J. of the C. P. (Tindal), of Sir J. B. 
 Bosanquet, and of the late Mr. J. Park, Littledale and Gazelee, Js., Bollard 
 and Gurney, Bs. Among the judges who adhered to this retractation of the 
 decision in Cooper v. Wakley, were the two whom I have named as assessors to 
 Lord Tenterden when that decision was made (Bayley and Littledale, Js.). 
 His own opinion may be gathered from what he said in Cotton v. James, Moo. 
 & M. (22 E. C. L. R.) 273. If ever a decision was overruled on great delibera- 
 tion, and by an undeviating practice afterwards, it is that in Cooper v. Wakley.'''' 
 But the rule thus declared was confined to the case under consideration. Con-
 
 598 PROOFS. 
 
 resolution, that justice would be better administered by altering tlie 
 rule of practice, and that in future the plaintiff should begin in all 
 actions for personal injuries, and also in actions for libel and slander, 
 notwithstanding the general issue may not be pleaded, and the 
 aflSrmative be on the defendant. It is most reasonable that the 
 plaintiff who brings his case into Court, should be heard first, to es- 
 tablish his complaint."' 
 
 This rule was at first deemed to be confined to actions for per- 
 sonal or malicious injuries," such as assaults, libel and slander,'' ma- 
 licious prosecution, and the like ;'' and it was not considered to be 
 sufficient in other actions, to bring a case within the rule that the 
 amount claimed should be unliquidated,^ as in an action of covenant or 
 P^rQQ-i assumpsit to recover damages for a breach of contract,^ *or of 
 trespass to land or goods, ^ or in an action of trover,** or case." 
 
 tented with the correction of an error, the judges left the practice in actions of 
 contract in its former state : Ibid. 
 
 * In the report of the same case, in 1 M. & Rob. 281, the rule is stated thus : 
 " A resolution has lately been come to by all the judges, that in case of slander, 
 libel, and other actions where the plaintiff seeks to recover actual damages of 
 an unascertained amount, he is entitled to begin, although the affirmative of 
 the issue may, in point of form, be with the defendant." 
 
 " In Wooton v. Barton, 1 M. & Rob. 18, Pai-ke, B., said that the only rule 
 laid down by the judges was, that in actions for personal injuries where 
 damages are sought, as in actions of assault, libel and slander, the plaintiff 
 should begin. Thus, in an action on a covenant for payment of money ( Wooton 
 V. Barton), or on a bill or note [Cannuni v. Farmer, 3 Ex. 698), where interest 
 is only sought to be recovered as damages. But the case is different, if money 
 has been paid into court, and there is an issue that the plaintiff has sustained 
 greater damages: Cri.pps v. Yates, Car. & M. (41 E. C. L. R.) 489 ; Booth v. 
 Millns, 15 M. & W. 669; and see Reeve v. UnderUll, 6 C. & P. (25 E. C. L. R.) 
 773. 
 
 " Wooton v. Barton. Even when the defendant suffered judgment by default 
 as to part, and pleaded affimatively to the I'esidue : Wood v. Pringle, 1 M. & 
 Rob. 277. 
 
 ' Atkinson v. Warne, 6 C. & P. (25 E. C. L. R.) 687. 
 
 y Reeve v. Underhill, 6 C. & P. (25 E. C. L. R.) 773 ; Lewis v. Wells, 7 C. & 
 P. (32 E. C. L. R.) 221 ; Wooton v. Barton, 1 M. & Rob. 518. 
 
 '■ Reeve v. Underhill, 6 C. & P. (25 E. C. L. R.) 773 ; Lewis v. Wells, 7 C. & 
 P. (32 E. C. L. R.) 221. 
 
 » Burrell v. Nicholson, 6 C. & P. (25 E. C. L. R.) 202. 
 
 »> See Scott v. Letois, 7 C. & P. (32 E. C. L. R.) 347. 
 
 • Chapman v. Emden, 9 C. & P. (38 E. C. L. R.) 712. For selling envelopes, 
 &c., in imitation of those used by the plaintiff; plea, that those sold by the 
 plaintiff were of an inferior kind. On issue joined on the replication of de 
 injuria tlie defendant was held to be entitled to begin : Rowland v. Bcrnes, 1 C. 
 & K. (47 E. C. L. R.) 46.
 
 RIGHT TO BEGIN. 599 
 
 But in one instance the rule was held to apply to an action for 
 breach of promise of marriage/ an action of contract in substance 
 as well as in form ; and also to an issue taken on a plea in abate- 
 ment.® 
 
 And now it seems to be settled that the rule is the same in actions 
 of contract and in actions of tort/ and that wherever the amount 
 which the plaintiff is entitled to recover is really in question, he is 
 entitled to begin.*^ Therefore, in an action of covenant, by an ar- 
 ticled clerk against an attorney for dismissing him, the defendant 
 having pleaded that the plaintiff conspired with another attorney, by 
 unlawful means to induce the defendant's client to leave him and 
 employ the other, and in pursuance of that conspiracy *dis- r*oAA-| 
 closed tiie defendant's professional secrets to the other, and 
 calumniated the defendant to his clients, whereby he was forced to 
 discharge the plaintiff, and the plaintiff had traversed the whole plea, 
 Avhereupon issue was joined; it was held that the plaintiff was en- 
 titled to begin, for the amount of damages was open.*" 
 
 So in assumpsit, on an agreement to take the plaintiff's son as a 
 pupil and assistant in the defendant's profession of a surgeon, the 
 grievance alleged being a wrongful dismissal for misconduct, the 
 plaintiff on issue taken on a plea affirmatively alleging the miscon- 
 duct is entitled to begin.' So in an action on a charter-party, where 
 
 ^ Harrison v. Gotdd, 7 C. & P. (32 E. C. L. R.) 580 ; Feeve v. Underhill, 6 C. 
 & P. (25 E. C. L. 11.) 773. But in Stanton v. Paton, 1 C. & K. (47 E. C. L. R.) 
 148, upon an issue joined, on a plea in assumpsit for breach of promise of 
 marriai^e, that the parties mutually released each other, Lord Abinger, C. B., 
 after consulting Patteson, J., held that the defendant was entitled to begin. 
 
 ^ See Vol. II., tit. Abatement ; Morris v. L'otan, I M. & Rob. 233. In Fowler 
 V. Coster, M. & M. (22 E. C. L. R.) 241 ; and 3 C. & P. (14 E. C. L. R.) 4G3 ; 
 Lord Tenterden held, that wherever it appears on the record or from the state- 
 ment of counsel that there is no real dispute as to the sum to be recovered, but 
 the damages are either nominal or mere matter of computation, then if the 
 affirmative of the issue is on the defendant, he is entitled to begin ; where, there- 
 fore, to an action on bills of exchange there was a plea in abatement of the non- 
 joinder of others, it was held that the defendant ought to begin ; and in assump- 
 sit for goods sold, plea the non-joinder of another defendant, Alderson B., 
 held, that if the defendant would admit the debt, he was entitled to begin: £on- 
 Jield v. Smith, 2 M. & Rob. 519. 
 
 ' Mercer v. Whall, 5 Q. B. (48 E. C. L. R.) 447. 
 
 8 Hoggett v. Exleg, 9 Car. & P. (38 E. C. L. R.) 324 ; 2 M. & Rob. 251. Thus 
 in assumpsit with a general plea of set-off, the plaintifi" must begin, and prove 
 the amount due. 
 
 " Mercer v. Whall, 5 Q. B. (48 E. C. L. R.) 447. 
 
 ' Wise V. Wilson, 1 C. & K. (47 E. C. L. R.) 662. 
 36
 
 600 PROOFS. 
 
 the issue was whether the defendant had furnished a sufficient cargo, 
 and the plaintiff after notice had refused to receive the cargo offered, 
 the plaintiff was held to be entitled to begin, as he was to prove the 
 amount of his damages.'' 
 
 If, too, there be any issue upon the record which it would be incum- 
 bent on the plaintiff to support by evidence, however minute may be 
 the portion of the case to which it extends,"* if he be really proceeding 
 and intend to found a claim upon it, he is entitled to begin. Thus, 
 where any part of his claim is met by the general issue, he has a right 
 to begin. ^ And indeed wherever any material allegation in the decla- 
 ration, though in form negative yet in substance affirmative," is denied 
 by the defendant, the plaintiff must begin. Thus, in assumpsit, for 
 r*fi()11 ^^^^ delivering hay of a certain quality ; plea, that the *defend- 
 ant tendered hay of that quality, and that the plaintiff re- 
 fused to receive it ; it was held, that this being a traverse of an 
 allegation in the declaration, the proof of the issue lay on the plain- 
 tiff." So, in an action on a warranty of soundness of a horse, the 
 declaration stating it to be unsound, and the defendant by his plea 
 alleging it to be sound." 
 
 In an action on a policy of assurance ; the declaration set out the 
 policy, wherein it Avas stipulated that if anything stated by the assured 
 to the company, previously to the execution of the policy, was untrue, 
 the policy should be void ; and the declaration contained an averment 
 that the statements so made were true. The plea traversed the aver- 
 ment of truth, "in this, that the assured was afflicted with rupture," 
 concluding with a verification, and the plaintiffs replied de injurid. 
 It appeared in evidence that the assured made a statement that he 
 had not been afllicted with certain diseases, including rupture ; it was 
 held that the plaintiffs were entitled to begin, and the judge having 
 
 J lUdjicay v. Ewhaiik, 2 M. & Rob. 217 ; and soe Hoggett v. OxJey, 2 31. & 
 Rob. 251. 
 
 " Booth V. Mains, 15 M. & W. 669 ; Rawlins v. Desboroiu/h, 2 M. & Rob. 328. 
 
 ' J'rlce V. Seaward, Car. & M. (41 E. C. L. R.) 23. But if the common counts 
 to which the j:;enenil issue is pleaded are merely added by way of precaution, 
 and the plaintiff will not undertake to open a case on them, they will be no im- 
 pediment to the defendant's ri^ht to begin : Smart v. liayner, 6 Car. & V. (25 
 E. C. L. R.) 721. 
 
 ™ See the test suggested by Alderson, B., ante, p. 585, note (c) ; and Amos v. 
 Hughes, there cited ; Oshorn v. Thompson, 2 M. & Rob. 254. 
 
 " Crowleg v. J'agc, 7 Car. .t l\ (32 E. C. L. R.) 789. 
 
 " Ouhorn v. 7'/<njii/>.s,ni. 2 M. & Hob. 254.
 
 RIGHT TO BEGIN. 601 
 
 allowed the defendant to begin, a new trial was directed. ^ So on an 
 
 issue to try whether A. B. was at a certain time of sound mind, the 
 
 plaintiff who affirms the soundness may begin. '^ 
 
 In replevin, where the defendant avows for rent in arrear, and the 
 
 plaintiff pleads in bar that the distress Avas not made within twenty 
 
 years from the time when the right to make a distress accrued, and 
 
 the avowant takes issue, the plaintifl" must begin, as it lies upon him 
 
 to prove when the distress was made." 
 
 So the plaintiflf has been held to be entitled to begin *in 
 
 . . . . r*602l 
 
 an action against a builder on a building agreement, the *- ""^ 
 
 issue being whether it was executed according to the specification.' 
 Also in covenant for not leaving in repair ; the plaintiff alleging that 
 the premises were dilapidated, and the defendant that they were not.* 
 So in covenant where the declaration stated that the defendant cove- 
 nanted to occupy the demised premises in a proper manner and to 
 keep them in repair, and assigned as breaches that the defendant did 
 not occupy in a proper manner, and did not keep the premises in re- 
 pair, which was traversed." 
 
 But if in an action of trespass, or other like action to try a right, 
 in which the whole of the pleas are in the affirmative, and the issues 
 raised by .them should be sustained by the defendant, the defendant 
 is entitled to begin; unless the plaintiff's counsel will pledge himself 
 that he is proceeding for more than nominal damages. Thus, where 
 the action was trespass q. c. /., and the plea alleged as a justification 
 that the defendant committed the trespass in asserting a right, which 
 right the plaintiff traversed ; the plaintiff's counsel having claimed 
 the right to begin, the judge asked whether he would undertake to 
 proceed for substantial damages, and on his declining to do so allowed 
 defendant to begin.'' 
 
 P Ashhy V. Bates, 15 M. & W. 589. In Geach v. Ingall, 14 M. & W. 95, the 
 Court decided the same way, the only difference in the cases being that the plea 
 in the latter concluded to the country, s. p. Rawlins v. Desborough, 2 M. & Rob. 
 76, 328 ; Craig v. Feim, Car. & M. (41 E. C. L. R.) 43 ; contra, Pole v. Rogers, 
 2 M. & Rob. 287. 
 
 1 Frank v. Frank, 2 M. & Rob. 314. 
 
 ' Collier v. Clark, 5 Q & B. (48 E. C. L. R.) 467. 
 
 » Smith V. Davies, 7 C. & P. (32 E. C. L. R.) 307. 
 
 * Soicard v. Leggatt, 7 Car. & P. (32 E. C. L. R.) 613 ; Belcher v. Mcintosh, 8 
 Car. & P. (34 E. C. L. R.) 720 ; per Lord Denman, C. J., 1 M. & Rob. 440. 
 
 " Doe deni. Trustees of Worcester School v. Boivlands, 9 Car. & P. (38 E. C. 
 L. R.) 734. 
 
 '' Chapman v. Raioson, 8 Q. B. (55 E. C. L. R.) 673 ; Fowler v. Coster, supra, 
 note. So in Pearson v. Coles, 1 M. & Rob. 206, where lib. ten. only was pleaded.
 
 602 PROOFS. 
 
 So, too, where the damages are liquidated or nominal, or the 
 amount of the debt or damage is admitted on the pleadings, or is 
 merely matter of simple calculation, and the only issues raised are 
 alleged affirmatively by the defendant, not only in point of form, but 
 also of substance, there *the defendant is entitled to begin. 
 '^J Thus, in debt for goods sohi and delivered, with a general 
 plea of payment"^ only upon the record, the defendant was held en- 
 titled to begin. So, where the defendant pleaded his discharge 
 under the Insolvent Debtor's Act, and the plaintiff, by his replication, 
 denied the plea.'' So, in replevin upon an avowry for a distress for 
 arrears of annuity, to which there was a plea that no memorial had 
 been enrolled: replication, that a memorandum was enrolled, setting 
 it out; rejoinder, that the memorandum did not truly state the names 
 of the persons by whom the annuity was to be received, and the con- 
 sideration ; surrejoinder, that it did truly state both ; the defendant 
 was allowed to begin. ^ 
 
 And the same was held in an action for a false return to a man- 
 damus to restore a parish clerk, to which the defendant had returned 
 that the plaintiff was addicted to habits of intoxication. The decla- 
 ration in the action negatived these allegations in the return, which 
 the defendant re-asserted in his plea affirmatively to be true.'' In a 
 feigned issue, the plaintiffs averred that the goods in question were 
 not the goods of them or either of them; and the defendant asserted 
 that they were the goods of them, or one of them ; Lord Abinger 
 held that the defendant had the right on this issue to begin, as the 
 affirmative lay upon him.^ 
 
 In ejectment, the lessor of the plaintiff, who must establish and 
 recover on the strength of his own title, has generally the right to 
 begin ; but this in practice is subject to exceptions where the de- 
 fendant admits the prima facie title of the plaintiff. Thus, if the 
 lessor of the plaintiff claim as heir of A., and the defendant claim 
 under a will made by A., if he will admit that A. died seised and 
 
 The jud<;e, when he has the means, will himself look at the facts to see whether 
 substantial damages are or can be claimed ; Bastard v. Smith, 2 M. & Rob. 
 129, 
 
 " Biri V. Leif/h, 14 M. & W. 177 ; Richardson v. Fell, 4 Dowl. 10; or set-off: 
 see Roche v. Chapman, 1 Ex. 10 ; or coverture : Woodyate v. Putts, 2 C. & K. 
 (61 E. C. L. R.) 457. 
 
 ' Lambert v. JIale, 9 Car. & P. (38 E. C. L. R.) 506. 
 
 y Jfo;/arth v. Ferrimj, 1 C. & K. (47 E. C. L. R.) 608. 
 
 ' liowtcH V. Keale, 7* Car. & P. (32 E. C. L. R.) 262. 
 
 » Hudson V. Brown, 8 Car. & P. (34 E. C. L. R.) 774.
 
 RIGHT TO BEGIN IN EJECTMENT. 604 
 
 that *the lessor is his heir he is entitled to begin/' He must r-^noA-i 
 however admit the whole primd facie title without any qual- L J 
 ification, and admitting only a portion of it, or admitting it only 
 hypothetically, will not suffice. Thus, in the case above suggested, if 
 the defendant claim under a conveyance by A. in his lifetime, instead 
 of his will, he is not entitled to begin, for by admitting the heirship, 
 and seisin of ^4., unless defeated by the conveyance, he does not 
 absolutely admit the seisin of the ancestor at the time of his death;'' 
 so, if the defendant found his title even in part under a marriage 
 settlement of the ancestor, for then he does not admit the title as to 
 the whole f and if the defendant claim himself as heir, he cannot by 
 admitting the lessor to be the heir unless he is so, entitle himself to 
 begin." It was formerly thought, and it has been held in some in- 
 stances,*^ that if the lessor claimed under a will, and *the de- r^pnc-i 
 fendant under a later will or codicil, the defendant was 
 entitled to begin, if he admitted the primd facie case of the lessor ; 
 but these cases have been overruled by a recent decision,^ where the 
 subject was fully discussed in banc. In such a case it is evident the 
 defendant does not admit the whole of the lessor's case. That case 
 is, that the will was a subsisting will at the time of the .ancestor's 
 
 " Goodtitle v. Braham, 4 T. R. 497 ; Doe v. Smart, 1 M. & Rob. 476 ; Fenn v. 
 Johnson, cited M. & M. (22 C. E. L. R.) 168, n. ; Adams on Eject., 3d edit. 288, 
 where Le Blanc, J., and Wood, B., so ruled on several occasions. But on an- 
 other occasion, Gibbs, .J., held that the admission did not give the defendant the 
 right to begin. In the case of Doe v. Barnes, 1 M. & Rob. 386, Sophia Rich, 
 ards, the sister and heiress oP John Clavel, took possession of premises of which 
 he died seised ; the lessors were her devisees of the premises and her heir-at- 
 law, who was also heir-at-law of John Clavel, Lord Denman ruled that the 
 defendant, admitting those facts, and that the plaintiff was entitled to the 
 property, unless he, the defendant, proved the will of John Clavel, was entitled 
 to begin. 
 
 " Where in ejectment by the heir-at-law to recover premises conveyed by the 
 deceased ancestor, under a deed which was impeached on the ground of his in- 
 capacity at the time of the execution, held, that as the seisin of the ancestor at 
 the time of his death was not admitted, the mere admission of the lessors title 
 as heir by pedigree did not entitle the defendant to begin : Doe v. Tucker, M. & 
 M. (22 E. C. L. R.) 536; Doe v. Smart, 1 M. & Rob. 476. 
 
 ^ Doe V. Lewis, 1 Car. & K. (47 E. C. L. R.) 122. 
 
 « Doe V. Bray, M. & M. (22 E. C. L. R.) 166. Where each party claimed as 
 heir-at-law, and the defendant, if legitimate, was clearly heir, it was held (by 
 Vaughan, B.), that an admission by him, that unless he were legitimate, the 
 lessor of the plaintiff was the heir-at-law, did not entitle the defendant to begin. 
 
 ^ Doe V. Cobett, 3 Camp. 368 •, Doe v. Barnes, supra. 
 
 e Doe dem. Bather v. Brayne, 5 C. B. (57 E. C. L. R.) 655.
 
 605 PROOFS. 
 
 death ; or rather, in truth, that the ancestor devised it, and the ad- 
 mission is no admission of that fact, but at most only a qualified one 
 of the lessor's title, viz., unless defeated by the subsequent will.^ 
 
 It seems to be discretionary in the judge, whether, after the plain- 
 tiff has closed his case, and the defendant's counsel has commenced 
 his address to the jury, the plaintiff's counsel can be allowed to go 
 into a new case.** In a penal action the court will not permit a defect 
 in the plaintiff's case to be supplied, unless it has arisen merely from 
 inadvertence on the part of the plaintiff's counsel.' 
 
 Where there are several issues, the proof of some being incumbent 
 on the plaintiff, and of others on the defendant, it is usual for the 
 plaintiff to begin,-" and to prove those which are essential to his case, 
 
 " Per Le Bhinc, J.. Edwards v. Sharrett, I East 614. 
 
 ' Alldred v. Hulliwell, 1 Stark. C. (2 E. C. L. R.) 117 ; cor. Lord Ellenborough. 
 Generally, the judge will allow witnesses to be called to obviate any objection 
 beside the merits of the case, even after the party's case is closed : Giles v. 
 Powell, 2 Car. & P. (12 E. C. L. R.) 259. 
 
 J James v. Salter, 1 M. & Rob. 501 ; Cvrtis v. Wheeler, M. & M. (22 E. C. L. 
 R.) 493; Williams v. Thomas, 4 C. & P. (19 E C. L. R.) 234; Jackson v. 
 Hesheih, 2 Stark. C. (3 E. C. L. R.) 518 ; Booth v. Millns, 15 M. & W. 669 ; see 
 
 ' It is a general rule that the plaintiff who has the burden of proof shall have 
 the general reply or closing argument, and the only exception is where the de- 
 fendant, by his plea, admits the whole cause of action stated in the declaration, 
 and undertakes to remove or defeat it by the matter set up in his bar : Ayre v. 
 Avstin, 6 Pick. 225 ; see also Abat v. Signa, 5 Mart. N. S. 75. And where the 
 defendant pleads the general issue in connection with a special plea which 
 admits the cause of action, the right of reply will belong to the plaintiff, 
 although the defendant should waive the general issue : Ayre v. Austin, 6 Pick. 
 225. In an action of trespass qua. clans, freg. if the defendant plead soil and 
 freehold in himself, upon which issue is joined and there be no other plea, he 
 has the afiBrmative, and will have the right of opening and closing : Davis v. 
 Mason, 6 Pick. 156. Where the probate of a will is opposed on the ground 
 that the testator when he executed it was not of sane mind, the burden of proof 
 in the first instance is on him Avho offers the will for probate, and he will ac- 
 cordingly be entitled to the opening and closing argument : Brooks v. Barrett, 
 7 Pick. 94. " Although in most cases where the defendant pleads merely an 
 affirmative plea, he is by the course of practice entitled to the conclusion, yet 
 the plea of property, as I apprehend, does not produce this effect in the action 
 of replevin. The plaintiff I think must, notwithstanding, first prove that he 
 has a right to maintain his writ of replevin, by showing that he has either an 
 absolute or special property in himself." Per Kennedy, J., in Marsh v. Pier, 
 4 Rawlc 2.S3. Where counsel rose to address the jury, and the judge told him 
 he should charge against him, and he did not therefore address the jury, it was 
 held that this was a voluntary relinquishment of the right to address them, 
 not compelled by the decision of the judge: Jackson v. Codt/, 3 Cow. 140. G.
 
 ORDER OF PROOF. 605 
 
 and then the defendant does the same, and afterwards tlie phiintifT is 
 entitled to go into evidence to controvert the defendant's affirmative 
 proofs ; the defendant's counsel is entitled to a reply upon such evi- 
 dence, "^ in support of his own affirmatives, *and the plain- r*/'Af^-i 
 tiif's counsel to a general reply. Where, however, there are 
 issues involving different transactions, the proof of one of which is 
 incumbent on the plaintiff, and the proof of the other of which is 
 incumbent on the defendant, some difference has obtained in practice 
 on the question whether the plaintiff be bound to go into evidence, as 
 part of his own case, to negative the defendant's case, as well as 
 affirmatively to establish his own. According to the later authorities 
 it is now settled that he is not bound to enter on any such negative 
 evidence in the first instance, but may waive his proof until the 
 defendant has exhausted his affirmative evidence in support of his 
 own case. But it is also laid down, that if the plaintiff elect to enter 
 at all into such negative evidence in the first instance, he must then 
 produce the whole of that evidence, and that he cannot in such case 
 be permitted to adduce negative evidence generally in reply. Where 
 to a declaration for a libel the defendant pleaded the general issue, 
 and several pleas of justification, it was held that the plaintiff might, 
 if he chose, go into evidence in the first instance to negative the 
 pleas of justification, but that he could not go into part of such evi- 
 dence in the first instance, and adduce the remainder in reply to the 
 defendant's case.™ Although *there be in fact several ^ ^^„^ 
 issues, as where in an action of assault and battery the de- ^ -' 
 
 Mercer v. Wkall, 5 Q. B. (48 E. C. L. R.) 447. A party has a right to have 
 all the issues tried, although one which goes to the whole cause of action or 
 defence is proved against him by his own witness : Fry v. Monckton, 2 M. & 
 Rob. 303. 
 
 ■^ Meagoe v. Simmons, 3 Car. & P. (14 E. C. L. R.) 75; M. & M. (22 E. C. L. 
 R.) 121. 
 
 ' See Rees v. Smith, 2 Stark. C. (3 E. C. L. R.) 31 : where in an action of 
 trespass, q. c.f., &c., to which the defendant had pleaded the general issue, and 
 pleas of justification, Lord Ellenborough stated the rule to be, that where by 
 pleading, or by reason of notice the defence was known, the counsel for the 
 plaintiff was bound to open the whole case in chief, and could not proceed in 
 parts. And his Lordship held the same doctrine in the case of bills of exchange, 
 where a notice had been given of the intention to dispute the consideration : 
 Delauney v. Mitchell, 1 Stark. C. (2 E. C. L. R.) 439 ; see also Spooner v. Gardi- 
 ner, R. & M. (21 E. C. L. R.) 86. 
 
 "" Broivn v. Murray, R. & M. (21 E. C. L. R.) 254 ; cor. Lord Tenterden, C. 
 J. His Lordship had previously ruled to the same effect in Sylvester v. Hall, 
 Sitt. after Trin., July 1825 ; where, to an action for trespass and false imprison-
 
 607 PROOFS. 
 
 fendant pleads not guilty, and son assault demesne; yet, if the 
 defence consists of distinct collateral matter, the negative of which 
 requires no proof from the plaintiff in the first instance, notwith- 
 standing the plaintiff had notice of the defence intended to be set up, 
 it is not necessary for him to go into any evidence in answer to that 
 defence, until the defendant has, by his proof, called upon him for a 
 reply ; this appears to be a matter of practical convenience, subject 
 to the discretion of the Court." It is possible that the defendant 
 
 ment, the defendant had pleaded the general issue, and also several pleas in 
 justification. Park, J., ruled accordingly in Eoe v. Day, 7 C. & P. (32 E. C. 
 L. R.) 707. On the trial of an action for not setting out tithes, some questions 
 were asked of the plaintiff's witnesses, on cross-examination, as to the land 
 being barren, and who on re-examination swore as to its fertility. The defence 
 was, that the land was barren. On evidence being given by the defendant to this 
 efifect, the plaintiff was allowed to give evidence in reply: Greswolde v. Kemp, 
 Car. & M. (41 E. C. L. R.) 635. 
 
 ° Lord Tenterden, C. J., adopted this course, and allowed a plaintiff to give 
 evidence in answer to a defence in an action on a bill that there was no con- 
 sideration, after notice of the intended defence: Sitt. after Ilil. 1820, at West- 
 minster; provided no suspicion has been cast on the plaintiff's title by ci'oss- 
 examination of plaintiff's witnesses: R. & M. (21 E. C. L. R.) 255, supra; see 
 Vol. II., tit. Bills of Exchange ; Spooner v. Gardiner, R. & M. (21 E, C. L. R.) 
 84. Where the plaintiff made out a prima facie case in ejectment as heir-at- 
 law, and the defendant set up a claim under a will, the plaintiff was allowed to 
 prove a claim under a subsequent will : Doe v. Gosley, 2 M. & Rob. 243. Wil- 
 liams V. Davies, 1 C. & M. 464, was a case where there were cross demands, and 
 set-off was pleaded ; it was held that the plaintiff need not in the first instance 
 prove more than the balance which he claimed, and that after the defendant 
 had proved his set-off, the plaintiff might prove other sums to be due, so as to 
 cover the set-off; and Lord Lyndhurst, C. B., said either way of proceeding may 
 be correct, and it must be left to the discretion of the judge to admit the evi- 
 dence or not. In Wright v. Wilson. 18 L. J., C. P. 333, the defendant having 
 introduced a new and material fact not alluded to in the plaintiff's case, as it 
 appeared in evidence or in the pleadings, the plaintiff was allowed to produce 
 evidence in answer to it, and the court objected to any general rule, saying it 
 was in the discretion of the judge and subject to the review of the court. The 
 plaintiff in ejectment made out n prima facie case, by showing that the defend- 
 ant came into possession under his tenant. The defendant giving evidence to 
 show that a piece of gai'den ground, part of the disputed premises, was demised 
 to him l)y his father, the plaintiff was admitted to show in reply rent received 
 for the land by himself and his predecessor for forty years : Doe v. Mohbs, 1 Car. 
 & M. (41 E. C. L. R.) 1. So, in trespass for taking the plaintiff's goods, where 
 the pleas were not guilty, a traverse of the plaintiff's property, and that they 
 were distrained after being fraudulently removed to avoid a distress, and the 
 plaintiff at the trial proved the trespass and his right to the goods, and the de- 
 fendant gave evidence of the fraudulent removal ; it was held that the plaintiff 
 might prove in reply, that the defendant had parted with his reversion before
 
 ORDER OF PROOF. 608 
 
 may *not be able to establisb any case, and thus time may 
 
 be saved by postponing the plaintiff's reply ; besides, until L -^ 
 
 the defendant has adduced such evidence, it cannot be known with 
 
 any certainty to what points the plaintiff is to adduce his evidence in 
 
 reply. 
 
 After the defendant has adduced his evidence the plaintiff's 
 counsel at once proceeds, without any observations, to tender any 
 evidence he may have in reply ; but such evidence must be con- 
 fined by negativing specific acts sworn to by the defendant's wit- 
 nesses, the proof of which he could not be expected to have antici-^ 
 pated, or to answer the defendant's case, where he has not attempted 
 to neg-ative that case in the first instance. He cannot be allowed to 
 adduce evidence which he might have given in support of his own 
 case in the first instance." Upon the evidence thus ad- r*ftoq-| 
 duced in *reply the defendant's counsel has then a right 
 
 the removal: Ashmore v. Hardy, 7 C. & P. (32 E. C. L. R.) 501. Lord Ellen- 
 borough usually required the plaintiff under such circumstances to ^o at once 
 into the whole of his case. 
 
 ° Thus where the plaintiff sued as endorsee of a bill of exchange, and on a 
 traverse of the endorsement relied in the first instance on a prima facie case by 
 merely giving evidence of the defendant's handwriting. The defendant then 
 proved that the plaintifi' was too poor to have discounted the bill, and denied all 
 knowledge of it, and had said that the action was not brought by his authority ; 
 it was held, that the plaintiff in reply could not produce evidence to show that 
 he had the means of discounting the bill and had in fact done so, for the fresh 
 evidence was merely confirmatory of the plaintifTs case: Jacobs v. Tarleton, 11 
 Q. B. (63 E. C. L. R.) 421. 
 
 So if the prosecutor give evidence to prove that a robbery was committed by 
 the prisoner, he cannot, upon an alibi being set up, prove that he was not at 
 the other place, but near the spot where the robbery was committed : B. v. Hil- 
 ditch, 5 C. & P. (24 E. C. L. R.) 299. But in case for the negligent driving at 
 L., the plaintiff having given evidence to show he was near the spot at the time 
 in question, the defence set up an alibi at R. It was held, that this being a new 
 fact disclosed in the defence the plaintiff might call in evidence in contradiction 
 to show that he was at L., although the general nature of the defence had been 
 disclosed by the cross-examination : Briggs v. Aynsworth, 2 M. & Rob. 168. 
 
 In a prosecution, however, for larceny, the case for the Crown was, that the 
 goods were stolen and found in possession of the prisoner. For the defence, his 
 daughter proved that he bought them of A. The prosecutor called A., and at- 
 tempted to prove by him that he had seen the prisoner steal them ; but he was 
 confined by the court to the question whether he had sold them : R. v. Stimpson, 
 2 C. & P. (12 E. C. L. R.) 415. So, in an action on a builder's bill, the defence 
 was that the charges were too high, and the defendant called a surveyor who 
 said they were £100 too high, when the plaintiff offered a letter written on the 
 defendant's part by his attorney some time before, complaining that his sur-
 
 610 PROOFS. 
 
 r*fiim ^^ comment, but his observations must be confined to that 
 *matter, for upon the phiintiff's original case and his own 
 evidence he has already commented. The plaintiff is then entitled 
 to the general reply. 
 
 Such is the course where the plaintiif begins; but where the proof 
 lies upon the defendant alone, he is entitled to begin, ^ the order of 
 proof is reversed, and his counsel becomes entitled to the reply. Thus 
 where the lessor of the plaintiff claimed as heir-at-law and the defend- 
 ant as devisee, and the latter admitting the lessor's title as heir 
 opened a new case, which the plaintiff answered by evidence; it was 
 held, that the defendant was entitled to the general reply.'' The 
 
 veyor thoutrht them £60 too high ; but Lord Tenterden held that it was not 
 properly evidence in reply: Kiiapp v. Ilaskall, 4 C. & P. (19 E. C. L. R.) 590. 
 So, in an action for the negligent driving of the defendant's servant, whereby 
 the plaintiff's goods vrere injured, being then in the possession of his servant; 
 the witness who proved it was cross-examined with a view to show that they 
 were the property' of P., and witnesses were called for the same object ; a wit- 
 ness was allowed to be called by the plaintiff, in reply, to prove that the goods 
 were not P.'s, but not to prove that they were the plaintiff's : Whittingham v. 
 Bloxham, 4 C. & P. (19 E. C. L. R.) 597 ; and see Rowe v. Brenton, 3 M. & R. 
 133 ; Boe V. Day, 7 Car. & P. (32 E. C. L. R.) 705 ; Brown v. Murray, Ry. & 
 M. (21 E. C. L. R.) 254. AVhere A. was called by the defendant to prove con- 
 versations between the plaintiff and the defendant's agents, cutting down the 
 plaintiff's claim, it was proposed by the plaintiff, after the defendant's case was 
 closed, to call B. in order to contradict A. ; and this course was allowed, not- 
 withstanding that the course of cross-examination by the defendant's counsel 
 gave notice of this case, so that the plaintiff might have called B. in the first 
 instance. But the examination of B. was confined to what took place on any 
 occasion when A. admitted that B. was present : Cope v. Thames Haven Dock 
 Compamj, 2 C. & K. (61 E. C. L. R.) 757. So, although a prosecutor cannot 
 call witnesses to strengthen his case, he may to contradict the prisoner's wit- 
 nesses: 2 Lew. C. C. J51. Where a prisoner on his trial makes a defence re- 
 pugnant to that made by him on his examination before the committing magis- 
 trate, the latter not having been given as evidence in chief, cannot, it has been 
 said, be proved to contradict the prisoner's witnesses : B. v. Powell, Car. & M. 
 (41 E. C. L. R.) 500. 
 
 P See ante, pp. 602, 603. 
 
 1 Goodtitle dem. Revett v. Braham, on a trial at bar, 4 T. R. 497. From the 
 report of this case it appears that the whole case went to the jury on the de- 
 fondant's title as devisee, the lessor's title as heir being admitted; and see Fenn 
 v. Jit/ui.sdii, Adams' P^ject. 4th ed. ; Doe dem. Corbett v. Corhett, 3 Camp. 368, 
 ante, p. 604. But where the plaintiff in such a case is put to proof of his pedi- 
 gree, it seems to be clear that he may, at his election, go into proof to con- 
 trovert the defendant's supposed case, and he would then be entitled to the 
 general reply; see Doe dem. Bather v. Braye, 5 C. B. (57 E. C. L. R.) 655; 
 supra, p. 605.
 
 ARGUMENTS OF COUNSEL. 610 
 
 title of the lessor as heir being once admitted, the effect as to the 
 order of proof was the same as if it had not been disputed at all ; and 
 consequently, the whole issue lying upon the defendajit, he was in 
 the same situation with a plaintiff in ordinary cases, and entitled to 
 begin/ 
 
 In civil, and now also in criminal cases,^ the party, *in r*p-|i-i 
 addition to the evidence which he adduces (the probatio in 
 artificialis of the Roman law),' is entitled to the aid of the comments 
 and arguments of counsel" (the prohatio artificialis), as applied to the 
 evidence in general. The counsel for the plaintiff" has an opportu- 
 
 ' See ante, p. 604. 
 
 ^ Upon indictments for raisdeineanors the defendant's counsel was always 
 entitled to address the jury, and the same privilege was conferred by 7 Will. 
 III. c. 3, in cases of treason within that statute ; and in cases of felony and 
 summary convictions by 6 & 7 Will. IV. c. 114, ss. 1, 2. After a prisoner's 
 counsel has addressed the jury, the prisoner cannot be heard himself; R. v. 
 Boucher, 8 C. & P. (34 E. C. L. R.) 141 ; R. v. Rider, Ibid. 539. He cannot 
 have the privilege of two statements, one by himself and another by his counsel : 
 R. V. Burrows, 2 M. & Rob. 124. But where no one was present at the time to 
 contradict the prosecutor's statement, the prisoner has been allowed to make his 
 own statement before his counsel addressed the jury: R. v. Malings, 8 C. & P. 
 (34 E. C. L. R.) 242. 
 
 ' Quintil., lib. 5, c. 8. According to the practice of the ancient Roman law, 
 the advocate was entitled to make a perpetual running comment upon the testi- 
 mony of the witnesses, and the documentary evidence as it was adduced. 
 Formerly, in our own Courts, the junior as well as the senior counsel addressed 
 the jury ; and the form is still preserved in trials for high treason. 
 
 " The object of the opening of a case by counsel is to give the jury a general 
 notion of what will be given in evidence ; but a statement of a fact by him does 
 not in itself alone give the opposite party a right to use it as a fact in the cause: 
 per Pollock, C. B., 1 C. & K. (47 E. C. L. R.) 684. Where a party in a civil 
 suit conducts his own case, it has been said that counsel cannot be heard for 
 him on points of law : Moscati v. Lawson, 7 C. & P. (32 E. C. L. R.) 328 ; Shut- 
 tleworth v. Nicholson, 1 M. & Rob. 251. Nor can the same person act as advo- 
 cate and give evidence as a witness : Stones v. Byron, 4 D. & L. 393. Counsel 
 also cannot be heard for a witness on the point, whether on an objection made 
 by a witness to a question he is bound or not to answer it : R. v. Adey, 1 M. & 
 Rob. 94. When points of law arise in the course of a cause, all the counsel are 
 heard upon it ; but the leading counsel only replies : of course, when the de- 
 fendant's counsel applies for a nonsuit, and is answered by the plaintiff's 
 counsel, the reply is on the law only: Arden v. Tucker, 1 M. & Rob. 192. 
 Upon the question as to the right to begin, one counsel only is heard : Rawlins 
 V. Desborough, 2 M. & Rob. 70; see Bastard v. Smith, Ibid. 130. 
 
 ^ The counsel for a plaintiff labors under a disadvantage in commenting upon 
 his evidence before it has been given ; it is frequently hazardous to lay much 
 stress upon facts which afterwards may not bo proved, and it not unfrequently 
 happens that the proof varies so much from the statement as to render his com-
 
 612 PROOFS. 
 
 r^n-ic)-\ Jiity for such *comments in stating his case to the jury/ 
 When the plaintiff's case has been concluded, the defend- 
 ant's counsel in his turn observes upon the evidence given, and also 
 on that which he intends to adduce;^ and after the defendant has ex- 
 hausted his evidence, the plaintiff's counsel replies.'' And tlius each 
 
 ments and inferences irrelevant, and sometimes even injurious. Tlie same 
 observations apply to the defence, where the defendant calls witnesses : his 
 counsel addresses the jury upon the case to be made out for the defendant, and 
 upon the contradiction to be given to the plaintiff's witnesses hypothetically, 
 upon the supposition that all which is stated will be proved ; he stands there- 
 fore in a most hazardous situation with reference to the plaintiff's counsel, 
 who has the opportunity of commenting on the whole case, not conditionally 
 and subject to the contingency that the very foundation on which his argu- 
 ments rest may sink from under him, but with a full and certain knowledge of 
 all the evidence in the cause. This practice not unfrequently induces a de- 
 fendant's counsel to waive his defence by witnesses, and to rely on the infirmity 
 of the plaintiff's case, rather than give his counsel the opportunity of replying. 
 This is a practice attended with considerable inconvenience, inasmuch as it 
 frequently excludes from the view of the Court and jury circumstances which 
 might materially assist them in attaining to a correct conclusion in law and in 
 fact, and it has justly led to a conviction on the part of many eminent persons 
 that the practice ought to be altered. 
 
 y In criminal cases the duty of the counsel for the prosecution is to assist in 
 the furtherance of justice, without considering himself as acting for any party : 
 R. V. Thiirsfield, 8 C. & P. (3-1 E. C. L. R.) 269. And if there be no counsel 
 regularly retained for the prosecution, but the depositions are by direction of 
 the Court handed to counsel, he should consider himself as counsel for the 
 Crown, and act in all respects as if instructed by the prosecutor, not as mere 
 assistant to the judge in examining the witnesses: R. v. Littleton, 9 C. & P. (38 
 E. C. L. R.) 671. He should open the case for the prosecution wherever there 
 is counsel for the prisoner: R. v. Gascoine, 7 C. & P. (32 E. C. L. R.) 772 ; or 
 the circumstances of the case are peculiar: R. v. Bolder, Ibid. 773. In so doing 
 he may state declarations made by the prisoner as well as facts : R. v. Hartel, 
 7 C. &'P. (32 E. C. L. R.) 773 ; R. v. Orrell, 1 M. & Rob. 467 ; 7 C. & P. (32 
 E. C. L. R.) 774, s. c. ; may read the general observations of a judge, made some 
 years before, on the nature and effect of circumstantial evidence, using them 
 as his own opinions and as part of his own address : R. v. Courcoisicr, 9 C. & 
 P. (38 E. C. L. R.) 362: and may put hypothetically the case of an attack upon 
 the character of a witness for the Crown, and state that if made he shall be 
 prepared to rebut it: Ibid. 
 
 ^ But the counsel for a prisoner in a criminal case cannot state the prisoner's 
 story, or anytliiiig which he is not in a condition to prove : R. v. Beard, 8 C. & 
 P. (34 E. C. L. R.) 142. 
 
 * Since the passing of the Prisoners' Counsel Bill, 6 & 7 Will. IV'., c. 114, 
 the following rules on this subject have been made by the judges : 7 C. & P. 
 (32 E. C. L. R.) 676; 2 Lew. C. C. 262: "If the only evidence called on the 
 part of the prisoner is evidence to character, although the counsel for the prose-
 
 ARGUMENTS OF COUNSEL. 613 
 
 party lias an opportunity of *commenting upon the wLole r^piq-i 
 of the evidence.'' If the defendant's counsel merely com- 
 ment on the plaintiff's case, and adduce no evidence/ the plaintiflF's 
 
 cution is entitled to the reply, it will be a matter for his discretion whether he 
 will use it or not ; cases may occur in which it may be fit and proper so to do. 
 In cases of public prosecutions for felony, instituted by the Crown, the law 
 officers of the Crown, and those who represent them, are in strictness entitled 
 to the reply, although no evidence is produced on the part of the prisoner." 
 They may in strictness do so, although the evidence on the part of the prisoner 
 be only to character: R. v. Stannnrd, 7 C. & P. (32 E. C. L. R.) 703 ; although 
 the Court will recommend the right to be exercised only under special circum- 
 stances : Ibid. And the reply may be not on the evidence to character only, 
 but on the whole case : IL v. Whiting, 7 C. & P. (32 E. C. L. R.) 771. But on 
 an indictment against two for stealing sheep and two for receiving them, the 
 latter of whom alone called witnesses, it was held, that although the counsel 
 for the prosecution was entitled to the general reply, he was bound to confine 
 it to the case of the party calling witnesses : R. v. Hayes, 2 M. & Rob. 155. 
 And where A. was indicted for feloniously abusing a girl under ten years of 
 age, and B. for aiding and abetting, and ^.'s counsel called no witnesses, but 
 5., who had no counsel, called a witness to prove an alibi for A., it was held, 
 that this was evidence for A., and the counsel for the prosecution might reply 
 on the whole case, but should exercise his right with great forbearance : R. v. 
 Jor^Zan, 9 C. & P. (38 E. C. L. R.) 118. 
 
 ^ Where a plea has been demurred to, and judgment given for the plaintiff, and 
 the venire is as well to try the issue joined as to assess damages upon the plea 
 demurred to ; the defendant's counsel cannot comment on the facts contained in 
 that plea as admitted : Ingram v. Lawson, 2 M. & Rob. 253 ; but see Gregory v. 
 Duke of Brunsivicl; 1 C. & K. (47 E. C. L. R.) 24. 
 
 " But if the defendant's counsel state facts which he proposes to prove, and 
 afterwards declines to call witnesses, the prevalent opinion seems to be, that the 
 plaintiff's counsel is entitled to reply: R. v. BignoM, 1 Dow. & Ry. C. (16 E. 
 C. L. R.) 59 ; R. V. Home, 20 How. St. Tr. 662 ; R. v. Carlisle, 6 C. & P. (25 
 E. C. L. R.) 636 ; Faith v. Mchityre, 7 C. & P. (32 E. C. L. R.) 44. There the 
 counsel for the defendant having proved a document on cross-examination, read 
 it as part of his speech, and Parke, B., intimated, that in point of good faith it 
 ought to be put in, which was done, and the plaintiflF's counsel replied. In 
 Crerar v. Soda, M. & M. (22 E. C. L. R.) 86, Lord Tenterden, C. J., and in 
 Naish V. Brown, 2 C. & K. (61 E. C. L. R.) 219, Pollock, C. B., held that the 
 allowing a reply in such a case was discretionary on the part of the judge; the 
 object being to prevent injustice by the statement of facts not intended to be 
 pi'oved. An account-book having been put into the witness's hands to refresh 
 his memory, the opposite counsel made observations as to the state in which it 
 was kept; but this was held not to give a right to reply : Pullen v. White, 3 C. 
 & P. (14 E. C. L. R.) 434. Nor does evidence given by a defendant to satisfy 
 the judge merely, e. g. to show the inadmissibility of secondary evidence, en- 
 title the plaintiflF to a reply : Harvey v. Mitchell. 2 M. & Rob. 366. In crown 
 and revenue cases, the Attorney-General and those who represent him have a 
 right to reply, although no evidence be given by the defendant. Wherever the
 
 613 PROOFS. 
 
 ^ counsel cannot *reply, for he has already been heard. 
 L J Where the plaintiff adduces fresh evidence in contradiction 
 of some new facts stated by the defendant's witnesses/ it is unneces- 
 sary to preface such evidence by observations ; for, after the defend- 
 ant's counsel has observed upon the evidence in contradiction, the 
 plaintiff's counsel is entitled to a general reply. And in such case 
 the defendant's counsel may be heard, but he is not entitled to reason 
 upon the whole of the evidence, he must confine his remarks to the 
 subject of contradiction only, having already made his observations 
 on the supposition that his witnesses would be believed, and his case 
 established. 
 
 Wliere documentary evidence is tendered which is prima facie ad- 
 missible, the opposite party cannot, it has been said, at that stage 
 introduce independent evidence to show that it is inadmissible, such 
 evidence being part of his own case.'' But this would seem to be erro- 
 neous, *^ and *if it be necessary, in order to introduce secondary 
 L -I evidence, to prove possession of a document by the adversary, 
 he may from the nature of the case produce evidence to show that he 
 had not possession of it.^ 
 
 If several defendants appear by different counsel, the issues on 
 their respective pleas being the same, and they ai'e in the same in- 
 terest, only one counsel can be heard for all.'' Thus, upon a joint 
 plea of not guilty, the counsel of each defendant cannot separately 
 cross-examine or address the jury.' Where the defendants in eject- 
 king's counsel appear officially they have this riffht: R. v. Gardner, 1 C. & K. 
 (47 E. C. L. R.) 635 ; and note ; see note (a), supra. 
 
 * See supra, p. 608, note (o), as to what evidence the plaintiff may adduce in 
 reply. 
 
 " Jones V. Fort, M. & M. (22 E. C. L. R.) 19G ; Field v. Woods, 7 Ad. & E. 
 (34 E. C. L. R.) 114. But this rule was said to be subject to the discretion of 
 the judge in the particular case: see M. & M. (22 E. C. L. R.) 197, n. 
 
 ^ The old ruling can hardly be supported, when it is remembered that such 
 evidence is not evidence in the cause, but for the judge on a collateral and in- 
 cidental question upon which he ought to hear the whole evidence on both sides 
 and determine, before the evidence is admitted: Cleave v. Jones, Hereford Sum. 
 Ass. 1851, where Erie, J., admitted evidence on the voire dire to show that a 
 document was inadmissible as being a privileged communication to an attorney ; 
 and see Jacobs v. Lahourn, 12 M. & W. 685; Attorney-General v. Hitchcock, 1 
 Ex. 95, per Parke, B., and next note. 
 
 8 Harvey v. Mitchell, 2 M. & Rob. 366 ; and see 5 Q. B. (48 E. C. L. R.) 187 ; 
 Smith v. Sleap, 1 C. & K. (47 E. C. L. R.) 48. 
 
 " Nicholson v. Brook, 2 Ex. 214; Sparkes v. Barrett, 8 C. & P. (34 E. C. L. 
 R.) 442; Macon v. Ditchhourne, 1 M. & Rob. 462; 4 Camp. 174. 
 
 ' Seale v. Evans, 7 C. & P. (32 E. c". L. R.) 593.
 
 NATURE OF EVIDENCE TO BE ADDUCED. 615 
 
 merit appeared by different attorneys and counsels, but they supported 
 the same title, only one of these counsel was allowed to address the 
 jury.J One of two defendants in trover appeared by counsel, and the 
 other in person; it was held, that the defence being joint and by 
 one attorney, the counsel only could address the jury, but the party 
 might cross-examine the witnesses.'' But where parties appear by 
 separate attorneys and counsel, and their interests are distinct, the 
 counsel for each may cross-examine and address the jury.' And 
 where after a plea in abatement for nonjoinder of P. and others, the 
 plaintiff brought an action including them, to wliich action P. pleaded 
 separately 7io)i assumpsit, the counsel for the original defendants pro- 
 posed to prove that P. was liable, held that P. s counsel should 
 address the jury after the proposed evidence was given."' 
 
 *A plaintiff is not precluded from recovering on any de- 
 mand to which he shows himself to be legally entitled by ^ J 
 the allegations on the record and the evidence, although his counsel 
 may not, in opening his case to the jury, have insisted on that de- 
 mand. Thus, in an action on a policy of insurance, with the money 
 counts, where the defendant showed that the risk had never com- 
 menced, it was held that the plaintiff was entitled to the premium, 
 although no claim had been made to it originally by his counsel.'"™ 
 
 Where there are several issues on pleas by diflcrent defendants, 
 and one will decide the whole case, but the others will not, the former 
 ought to be tried first: as where one pleads in abatement, and the 
 other pleads to the action ; or where one pleads to the action," and 
 the other to a matter personal to himself;" or where in trespass one 
 pleads a release, the other not guilty or a justification. ^ Where there 
 are many issues the court may order them to be tried separately.** 
 
 The order of priority in addressing the jury by difi"erent counsel 
 for different defendants, and proceeding with their cases, seems to be 
 matter for the discretion of the judge.'' On the trial of an issue 
 
 J Doe V. Tindale, 3 C. & P. (14 E. C. L. R.) 565. 
 
 ^ Perring v. Tucker, M. & M. (22 E. C. L. R.) 391. ' 
 
 ' Ridgway v. Phillip, 1 C, M. & R. 415 ; King v. Williamson, 3 Stark. C. (3 
 E. C. L. R.) 162 ; Masseij v. Go>/dc>; 4 C. & P. (19 E. C. L. R.) 162 -. and see 
 Ewbank v. Kntting, 7 C. B. (62 E. C. L. R ) 797. 
 
 "" Beale v. Monls, 1 C. Sc K. (47 E. C. L. R.) 1. 
 
 '°'" Penson v. Lee, 2 B. & P. 330. 
 
 " Co. Litt. 125; Bro., Trial, pi. 1, pi. 48 ; 2 Rol. Abr. 627 ; Bac. Abr., Trial, K. 
 
 - Co. Litt. 125 ; 2 Rol. Abr. 628, pi. 7. 
 
 "J Ibid. ; Bro., Trial, pi. 48 ; Bac. Abr., Trial K. 
 
 •> Kemp V. Mackerill, Sayer 131. 
 
 ^Fletcher v. Crosbie, 2 M. & Rob. 417. In criminal cases the Court will call
 
 616 PROOFS. 
 
 from Chancery by plaintiff, against A. B. and C. D., to try wlietlier 
 the plaintiff was next-of-kin to J. S\, A. B. claimed to be as nearly 
 related to J. S. as the plaintiff was, C. B. set up a claim inconsist- 
 ent with both of them ; held that at the close of the plaintiff's case 
 C B, must both open and prove his own case, and that then A. B. 
 should do the like, the plaintiff having the general reply to both.' 
 
 *2dly. As to the nature, quality and quantity of the evi- 
 *- ^ dence to be adduced by the parties.' 
 
 In the first place, with respect to the nature of the evidence; as 
 the business of trial is to ascertain the truth of the allegations put 
 in issue," no evidence is admissible which does not tend to prove or 
 disprove the issue joined.^ Thus, in an action of trespass for battery, 
 the defendant cannot, under a plea of not guilty, prove that the 
 plaintiff committed the first assault, for that is not the issue.' 
 
 on the counsel for different defendants in the order they stand on the record, 
 unless they otherwise agree : B. v. Barber and others, 1 Car. & K. (47 E. C. L. 
 R.) 4;u. 
 
 » PhiUips V. Willets, 2 M. & Rob. 319. 
 
 * The nature of the evidence necessary to prove particular issues will be con- 
 sidered at large in Vols. II. and III. 
 
 " Prefiitory allegations not denied must be taken to be true, and proof of them 
 by the phiintifl'is not admissible. Gwynne v. Sharpe, 1 Car. & M. (41 E. C. L. 
 R.) 532. An issue ought not to be allowed by the Court to be tried at nisi prius 
 which is not raised by the pleadings, unless the parties amend them : Ellison v. 
 Isles, 11 A. & E. (39 E. C. L. R.) 665. 
 
 ^ So where, in ejectment by a landlord against a tenant for breach of covenant, 
 particulars of the breaches being given in selling hay and straw off the premises, 
 removing manure and non-cultivation, the plaintiff cannot show a breach of cove- 
 nant by mismanagement in overcropping, or deviating from the usual rotation 
 of crops: Doe dem. Wimiall v. Broad, 2 M. & G. (40 E. C. L. R.) 523. Evidence 
 cannot be received even of admissions of a party, if they are not relevant to the 
 issue raised by the pleadings, so that he may have an opportunity of contra- 
 dicting them : Austin v. Chambers, 6 CI. & F. 4 ; Copland v. Toulmin, 7 CI. & 
 F. 350 ; Aflwood v. Small, 6 CI. & F. 234. In an action for a malicious prose- 
 cution for perjury, where the indictment contained two assignments of perjury, 
 if the plaintiff at the trial of the action confine his case to one of them, the 
 defendant is not entitled to prove that there was a reasonable and probable 
 cause for the charge contained in the other assignment: Ellis v. Abrahams, 8 
 Q. B. (55 E. C. L. R.) 709. It is no objection to evidence tending to prove a 
 criminal charge that it also proves another criminal charge : R. v. Dossett, 2 C. 
 & K. (61 E. C. L. R.) 306 ; K. v. Yoke, R. & R. C. C. 531 ; R. v. Clewes, 4 C. 
 & P. (19 E. C. L. R.) 221 ; R. v. Donnall, 2 C. & K. (61 E. C. L. R.) 308 ; R. v. 
 Tawell, Ibid. 309. 
 
 ' The necessity for enforcing the rule that no evidence can be admissible 
 wliieh does not tend to prove or disprove the issue joined is much stronger in 
 criminal than in civil cases: Hudson v. State, 3 Cald. 355 ; Wiley v. State, Ibid. 
 362 ; Liijhlfool v. People, IG Mich. 507.
 
 NATURE OF EVIDENCE TO BE ADDUCED. 617 
 
 And in an action of trespass for assault and battery, under a plea 
 of moderate correction of an apprentice for misconduct, and a general 
 traverse of the plea {de injurid), it was held that the only question 
 was whether the plaintiff had misconducted himself as an apprentice, 
 and that *evidence of excess in the correction was not admis- 
 sible, as the excess was not in issue." L ^ 
 
 But although remote and collateral facts, from which no fair and 
 reasonable inference can be drawn, are inadmissible, since they are 
 at best useless, and may be mischievous, because they tend to dis- 
 tract the attention of the jury, and frequently to prejudice and mis- 
 lead them;^ yet on the other hand all facts and circumstances are 
 admissible in evidence which are in their nature capable of affording 
 a reasonable presumption or inference as to the disputed fact. It is 
 the province of the judge,'" in the exercise of a sound discretion, to 
 discriminate between such facts as are connected with the issue, and 
 such as are merely collateral. 
 
 Frequently, however, it is difficult to ascertain a priori whether 
 proof of a particular fact offered in evidence will or will not become 
 material, and in such cases it is usual in practice for the court to 
 give credit to the assertion of the counsel who tenders such evidence, 
 that the fact will turn out to be material.* 
 
 The following are instances where the question has been discussed 
 whether the facts were sufficient to afford any inference as to the 
 matter in dispute, and on that account admissible in evidence, and 
 they will furnish the best illustration of the principle. 
 
 Thus the time at which one tenant pays his rent is not evidence to 
 show at what time another tenant of the same landlord and of the 
 same description as the former pays his rent.^ Nor is the quality of 
 a commodity sold to one customer proved by showing the quality of 
 that sold *to others." Nor is the fact that many tradesmen r:i-r«-iQ-| 
 have treated the defendant as a feme sole evidence that she 
 represented herself to the plaintiff as such.^ In trover, by assignees, 
 
 ^ Penn v. Ward, 2 C, M. & R. 338. 
 
 y Nothing is inadmissible which is material to the issue joined, to prove or 
 disprove it; per Blackstone, J., Sayre v. Earl of Rochford, Bl. 1169. No new 
 matter foreign to the issue joined is admissible in evidence: per De Grey, J., 
 BI. 1165. 
 
 ^ Lewis v. Marshall, 7 M. & G. (49 E. C. L. R.) 743. 
 
 » And see Ilaigh v. Belcher, 7 C. & P. (32 E. C. L. R.) 389. 
 
 '' Carter v. Pryke, Peake, C. 95. " Holcomhe v. Hewson, 2 Camp, 391. 
 
 * Barden v. De Keverherg, 2 M. & W. 61 ; Smith v. Wilkins, 6 C. & P. (25 E. 
 C. L. R.) 180; Delamotte v. Lane, 9 C. & P. (38 E. C. L. R.) 261. 
 37
 
 619 PROOFS. 
 
 against a creditor for goods alleged to have been delivered to him 
 by the bankrupt by way of fraudulent preference, the fact that other 
 creditors had delivered up goods received by them from the bankrupt 
 before the fiat, was held not to be evidence for the plaintiffs." 
 
 A custom in one parish, archdeaconry, or manor, is no evidence 
 of the same custom in another/ Por in these and other such cases 
 there is no such connection between the fact and the issue as to 
 afford a reasonable inference from the one to the other. Where, on 
 the other hand, such facts are by any general link connected with 
 the issue, they bc'come evidence. Thus, where all the manors 
 within a particular district are held under the same tenure, and 
 the issue is upon some incident to that tenure, the custom of one 
 manor is evidence to prove that the same custom exists in another.^ 
 And for a similar reason, on a question whether the Crown in right 
 of the Duchy of Lancaster had the right to appoint a coroner for the 
 r*r'9m ^'^'^o^' *°f Pontefract, part of that Duchy, evidence of the 
 Crown having appointed coroners in other parts of the 
 Duchy, was held admissible.^ 
 
 So, where the issue is as to a particular right upon a common, evi- 
 dence is inadmissible of the existence of such right on an adjoining 
 piece of common, but if a connection between them be proved, and 
 the right be claimed on both,' it becomes relevant and admissible. 
 
 Thus, where the question was, whether a slip of waste land 
 between old enclosures and the highway belonged to the lord of 
 the manor or to the owner of the adjoining enclosure, it was held 
 
 <= Blacklwuse v. Jones, 6 Bing. N. C. (37 E. C. L R.) 65. 
 
 ^ Furneaux y. Ilidchins, Cowp. 807; Ending v. KeweU, Str. 957, 601, 662; 
 Fort. 41 ; Doe v. Sisson, 12 East 62; Marqids of Anylesea v. Hatherton, 10 M. 
 & AV. 218. And this rule applies, although one manor be held of another ; Ibid. 
 But not apparently if one be a subinfeudation from the other ; Brisco v. Lomax, 
 8 A. & E. (o5 E. C. L. R.) 198; Duke of So?nerset v. France, infra; Tyrrwhit 
 V. Wynne, 2 B. & Aid. 554. Unless the custom be general. 
 
 8 Champion v. Atkinson, 3 Keb. 90 ; Duke of Somerset v. France, Str. 652 ; 
 Fort. 41,44; Anylesea v. llatherton, supra. The tenant-right which prevails 
 through the manors upon the border between England and Scotland, and the 
 particuhir cu.xtoms which prevail in the mining districts of Derbyshire and 
 Cornwall are of this kind : Ibid. So, the same rule applies to the free con- 
 ventioiiary tenants in the assessional manors in the Duchy of Cornwall : Howe 
 V. Brenlon, 8 B. & C. (15 E. C. L. R.) 758. Although these are not manorial 
 customs. 
 
 •> Jewison v. Dyson, 9 M. & W. 540. 
 
 ' Morevood v. Wood, 4 T. R. 157 ; Peardon v. Underhill, 20 li. .J., Q. I>. 
 133.
 
 NATURE OF EVIDENCE TO BE ADDUCED. 620 
 
 that the lord might give evidence .of grants by him of parts of the 
 waste between the same highway and the enclosures of other per- 
 sons at a considerable distance, the continuity of the waste between 
 these spots and the one in question being broken for the space of 
 sixty or seventy yards oidy by some old houses and a bridge.'' For 
 a similar reason, where a belt of wood surrounded the plaintiff's 
 land, but waS undivided from the closes adjoining, evidence that the 
 plaintiff had cut down the timber therein, but the owners of the ad- 
 joining closes had not, was held admissible to prove that the belt 
 belonged to the plaintiff.' Where the dispute was as to the owner- 
 ship of part of the bed of a stream flowing between the plaintiff's 
 farm and the defendant's, and the plaintiff claimed the whole bed of 
 the stream adjacent to his land, evidence of acts of ownership ex- 
 ercised by the plaintiff over the bed of the river lower down the 
 stream than the defendant's land and opposite another farm belong- 
 ing to a third person was admitted."" And the rule is the same as to 
 evidence of acts of ownership, Avhether they are in parts of a con- 
 tinuous waste or common and exercised upon *the surface or r^-i^oii 
 in a mine under ground." On a question as to the boundary 
 between the Rochdale and Wakefield manors, it was admitted that it 
 was identical with that between Lancashire and Yorkshire, and that 
 it had always been understood to run over a mountain district, nearly 
 north and south. The plaintiff proved that Rishworth manor had 
 anciently been part of Wakefield, and that the boundary between 
 Rishworth and Rochdale was identical with the boundary between 
 Yorkshire and Lancashire. He was admitted to prove that the 
 boundary between Rishworth and Rochdale had always been under- 
 stood to be the highest part of a ridge of hills parting the waters 
 which descended to the east and west." So, where a parish consists 
 of several townships, evidence that all the townships but one had 
 been accustomed to repair their highways (no parish surveyor being 
 appointed), is evidence that that one is bound to repair its own high- 
 way s.^ 
 
 To prove the manner of carrying on trade at one place, evidence 
 
 ^ Doe dem. Barrett v. Kemj), 2 Bing. N. C. (29 E. C. L. R.) 102; in Cam. 
 Scacc. 
 1 Stanley v. White, 14 East 331. 
 "" Jo7ies V. Williams, 2 M & W. 326. 
 " Taylor v. Parry, 1 M. & G. (39 E. C. L. R.) 604. 
 " Briscoe v. Lomax, 8 A. & E. (35 E. C. L. R.) 198. 
 p E. V. Barnoldstcick, 4 Q. B. (45 E. C. L. R.) 499.
 
 621 PROOFS. 
 
 may be given of the manner in which the same branch of trade is 
 carried on at another place.*^ 
 
 Where the question is one of skill and judgment, evidence may be 
 given of other facts, which, although in other respects collateral, are, 
 by means of the skill and judgment of the witness, connected with, 
 and tend to elucidate the issue/ 
 
 So, evidence of character is in many instances admissible/ So, 
 collateral facts are admissible to prove malice, intention, or guilty 
 knowledge.' 
 
 In an action for a malicious prosecution, a publication 
 L -'-'J *|3y the defendant of an advertisement of the finding of the 
 indictment and other matter on the subject of the prosecution, is 
 evidence to prove the malice." So, although acts done subsequent 
 to a contract cannot alter the nature of the contract, they may be 
 adduced to show what the contract was, if it be doubtful ;" therefore, 
 
 ■J Noble y. Kennoway, Doug. 510; see Milward v. Hibbard, 3 Q, B. (43 E. C. 
 L. R.) 120. 
 
 ' The Wells Harbor case, M. 23 Geo. III. 
 
 ^ See tit. Character. 
 
 ' Thus, on a charge of knowingly uttering a forged note or counterfeit coin, the 
 possession or uttering of other forged notes, though of a different description, 
 and other counterfeit coin [BalVs case, 1 Camp. 324; Wylie's case, 1 N. R. 92; 
 Millard's case, R. & R. 243) ; R. v. Balls, 7 C. & P. (32 E. C. L. R.) 426 ; is ad- 
 missible to prove the guilty knowledge. So, on a charge of receiving stolen 
 goods, the receipt by the prisoner at different times of several ai'ticles stolen 
 from the prosecutor, was admitted to prove guilty knowledge : Dumi's case, 1 
 Mood. C. C. 150. But the possession of other goods of the same sort as those 
 stolen, belonging to a third person from whom they had been stolen, cannot be 
 given in evidence on an indictment for receiving the prosecutor's goods knowing 
 them to have been stolen : The Queen v. Oddy, 20 L. J., M. C. 198. See tit. 
 Forgery, Coin. 
 
 " Chambers v. Robinson, Str. 691. So, his misconduct towards a person prose- 
 cuted jointly with the plaintiff: Caddy v. Barlow, 1 M. & R. (17 E. C. L. R.) 275. 
 So, endeavoring to stop a witness by indicting him for perjury, may be such evi- 
 dence : Haddrick v. Heslop, 12 Q. B. (64 E. C. L. R.) 267 ; Roivlands v. Samuel, 
 II Q. B. (63 E. C. L. R.) 40, n. A witness who preferred the indictment may 
 be asked whether the defendant desired him not to prosecute, although he can- 
 not be asked generally what the defendant said to him : Osterman v. Bateman, 
 2 C. & K. (61 E. C. L. R.) 728. 
 
 * Saville v. Robertson, 4 T. R. 720. In an action for making and fixing iron 
 railing to houses belonging to the defendant, the defence was, that the credit was 
 given to one Amos, who built the houses under a contract with the defendant. 
 Amos having stated that the order was given by him, it was held that he might 
 be asked how the balance of the account was between him and the defendant, 
 including the charge he had against him for the iron railings and other parts of 
 the building: Gerish v. Chartier, 1 C. B. (50 E. C. L. R.) 13.
 
 VARIANCES — SURPLUSAGE. 622 
 
 an admission of debt by the acceptance of bills of exchange by 
 partners, in payment of goods sold, is evidence to show the facts of 
 a sale to the partners/ In trover by assignees of a bankrupt, where 
 the defendant claimed the goods under a bill of sale from (7., who 
 claimed by assignment from B., and B. by assignment from the 
 bankrupt, and the plaintiffs asserted that all these transactions were 
 fictitious, the fact of C. having made a claim to the goods after the 
 *bankruptcy, was held admissible in proof of that assertion/ poo-\ 
 So, where the meaning of the terms of an agreement is '- '^''*-' 
 doubtful, and depends on custom or usage, collateral evidence is ad- 
 missible to explain them.* 
 
 In order to prove that the acceptor of a bill of exchange knew 
 the payee to be a fictitious person, evidence is admissible to show that 
 the acceptor had accepted similar bills before they could, according to 
 their date, have arrived from the place of date.** And similar evi- 
 dence is admissible to prove that the endorsee had a general authority 
 from the acceptor to fill up bills with the name of a fictitious payee." 
 
 But where the defence of the acceptor to an action by the endorsee 
 was that the acceptance was a forgery, evidence that a collection of 
 bills in which the defendant's acceptance was forged had been in the 
 plaintiff's possession and some of them circulated by him, but there 
 was no proof that the bill in question was part of that collection, 
 the evidence was rejected, as it clearly would have been on an indict- 
 ment for forgery.*^ 
 
 A collateral fact is not, in general, evidence to discredit a witness.* 
 But where a witness swore that a party had acknowledged two instru- 
 ments to have been made by him, evidence was admitted that one of 
 them was forged.^ 
 
 So, collateral evidence is admissible to show the probability of a 
 
 y 4 T. R. 720, supra. "■ Ford v. Elliott, 4 Ex. 78. 
 
 * See tit. Parol Evidence. 
 
 '' Gibson v. Hinder, 2 II. B. 288. So, one felony may be evidence on an indict- 
 ment for another, as uttering other forged notes, administering poison on another 
 occasion, having previously fired another rick, &c. : R. v. Dossett, 2 C. K. (61 
 E. C. L. R.) 308. So, if several distinct felonies be so connected together as to 
 form part of one transaction, they may all be evidence on a charge of commit- 
 ting one of them : B. v. Ellis, 6 B. & C. (13 E. C. L. R.) 145 ; R. v. Long, 6 C. 
 & P. (25 E. C. L. R.) 179 : R. v. Wi/lie, 1 N. R. 94. 
 
 " Gibson v. Hunter, supra. 
 
 ^ Griffiths V. Payne, 11 A. & E. (39 E. C. L. R.) 131. 
 
 « See ante, pp. 237, 240; and R. v. Watson, 2 Starkie, C. (3 E. C. L. R.) 149. 
 
 'Ann. 311.
 
 623 PROOFS. 
 
 surrender by a tenant for life, where the possession has long accom- 
 panied the recovery.^ 
 
 r*«9n *'^^ ^^^ main object of pleadings between the parties is to 
 '- " -^ define and ascertain the questions in controversy, and to ap- 
 prise the adversary of the nature of the evidence to be adduced 
 against him, and which he will have to meet, it is essential to the 
 purposes of substantial justice that these allegations should be estab- 
 lished by corresponding proof. In general, therefore, every material 
 and essential allegation in the charge or the defence, and every cir- 
 cumstance descriptive of anything so alleged, must, if disputed, be 
 proved in substance as averred. 
 
 The same reasons which require the cause of action, or of criminal 
 charge, to be stated upon the record, require also that the allegations 
 shall be proved : mere assertion without corresponding proof would 
 be nugatory. And as such allegations and proofs are to answer cer- 
 tain legal purposes, it necessarily follows that it is always for the 
 court to pronounce whether the facts proved satisfy the allegations on 
 the record. 
 
 As questions of variance are of daily occurrence, it may not be 
 improper here, before the decisions on the subject are noticed, to 
 eater into a brief consideration of the principles upon which the 
 doctrine is founded. With respect to the proof of the facts and cir- 
 cumstances alleged, three predicaments may occur : they are either 
 all proved as alleged ; or none of them are proved ; or part are 
 proved wholly or partially, and the rest are either not proved, or ab- 
 solutely disproved or negatived. The last of these predicaments is 
 of course the only one which can afford ground for discussion. 
 
 Now, considering that all human affairs and dealings are connected 
 together by innumerable links and circumstances, forming one vast 
 context, without any chasm or interruption, and undistinguished by 
 the artificial boundaries and definitions of right and wrong prescribed 
 by the law, it is in the nature of things impossible, that a transaction 
 detailed upon the record can be identical with the one proved, if the 
 proof vary in the slightest particular, be it in its own nature ever so 
 insignificant. 
 
 ^ ^ ^ *An act done at one day or place cannot be the same with 
 r*6251 
 
 •- -'an act done on another day, or at a different place ; a rob- 
 bery, where ten sovereigns were stolen, cannot be the same with a 
 robbery where nine only were taken. It is easy, therefore, to see 
 that to require this, as it were, natural and absolute identity of the 
 8 See 2 Saund. 175 d, n. {a).
 
 VARIANCES — PARTIAL PROOF. 625 
 
 allegations and proofs would be, at the least, highly inconvenient, if 
 not wholly impracticable. Hence it is, that an artificial and legal 
 identity, as contradistinguished from a natural identity, must be re- 
 sorted to as the proper test of variance; that is, it is sufficient if the 
 proofs correspond with the allegations, in respect of those facts and 
 circumstances which are, in point of law, essential to the charge or 
 claim. The rules which govern the connection between the allega- 
 tions and evidence must obviously result immediately from the prin- 
 ciples which regulate the allegations themselves. 
 
 By the rules of law, specific remedies or punishments are annexed 
 as incidents to certain defined combinations of circumstances. And, 
 in order to the practicable application of such remedial and prohibi- 
 tory definitions, it is necessary that the facts and circumstances of 
 each individual case, corresponding with the legal definition, but 
 amplified and particularized according to certain technical legal 
 rules, should be detailed upon the record. And this principally with 
 a view to the following objects : fo'sf, to apprise the defendant of the 
 specific nature of the claim or charge which is made against him ; 
 secondly, to enable the court to adjudge whether the circumstances 
 stated fall within any remedial or prohibitory law, and to pronounce 
 the proper judgment if the facts alleged be established ; and thirdly, 
 to enable the parties to avail themselves of the verdict and judgment 
 should the same rights or liabilities be again discussed. When, there- 
 fore, in addition to the facts which are essential to the claim or charge, 
 others are alleged which are wholly redundant and useless, the legal 
 maxim applies, ^^ Utile per inutile non vitiatur ;" and as the law did 
 not require the superfluous *circumstances to be alleged, so, r*p9£»-| 
 although they have been improvidently stated, the law in 
 furtherance of its object rejects them as mere surplusage, and no more 
 regards them for the purpose of proof than if they had not been 
 alleged at all. 
 
 It would be nugatory to require proof of allegations which are 
 wholly impertinent ; the identity of those allegations which are 
 essential to the claim or charge, with the proofs, is all that is mate- 
 rial. Therefore, it is a general rule that whenever an averment may 
 be wholly rejected, without prejudice to the charge or claim, proof is 
 unnecessary.'' 
 
 ^ See the observations of Lawrence, J., in Williamson v. Allison, 2 East 452, 
 and of Lord Tenterden, C. J., 3 B. & C. (10 E. C. L. R.) 122. And see instances 
 of this rule, Votcles v. Miller, 3 Taunt. 137 ; Bromfield v. Jones, 4 B. & C. (10 
 E. C. L. R.) 380; Tanner v. Bean, 4 B. & C. (10 E. C. L. R.) 312; Draper v. 
 Garratt, 2 B. & C. (9 E. C. L. R.) 2 ; Lord Churchill v. Hunt, 2 B. & Aid. 685.
 
 626 PROOFS. 
 
 Thus, if it were alleged that A., being armed with a bludgeon and 
 disguised with a visor, feloniously stole, took, and carried away the 
 watch of B., that A. was armed and disguised, being altogether 
 foreign to a charge of larceny, would be rejected, and would require 
 no proof on the trial.* 
 
 The same principle extends much further ; it frequently happens 
 that the evidence fails to prove circumstances not altogether imperti- 
 nent, but which are either merely cumulative or only affect the mag- 
 nitude or extent^ of the claim or charge ; and here, although circum- 
 _^„ stances are *alleged, which, if proved, would have been of 
 legal importance, yet, although the evidence fail to establish 
 the whole of what is alleged, the principle adverted to still operates to 
 give effect to what is proved to the extent to which it is proved. 
 The principles which require the cause of action or ground of offence 
 to be stated, are satisfied ; the adversary is not taken by surprise, 
 for no fact is admitted in evidence which is not alleged against him ; 
 and the court is enabled to pronounce on the legal effect of the part 
 which is established as true by the verdict of the jury, and the 
 record shows the real nature and extent of the right or liability 
 established. 
 
 Thus, if an indictment or declaration charge a defendant with hav- 
 ing composed, printed and published a libel, he may be found guilty 
 of the printing and publishing only.^ So, if A. be charged with 
 feloniously killing B. of malice prepense, and all but the fact of 
 malice prepense be proved, A. may clearly be convicted of man- 
 
 ' /. e. on an indictment foi* larceny. So where an indictment for robbery 
 alleged it to have been committed in the dwelling-house of A. B., a variance in 
 the name of the owner was held wholly immaterial, for it was not essential to 
 the crime of robbery that it should be committed in a dwelling-house : Pye's 
 case, East P. C. 785 ; Johnson'' s case, Ibid. 786. So, if arson be alleged to have 
 been committed in the night: Mustoii' s case, East P. C. 1021. 
 
 ^ Thus, averments, which are only material by way of aggravation, either of 
 damages or the charge, if not proved, may be rejected : Fallant v. Roll, Bl. 
 900 ; Maclcalhfs case, 9 Co. 61 ; Combe v. Pitt, 3 Burr. 1586. 
 
 ' R. V. Williams, 2 Camp. 507 ; R. v. Hunt, Ibid. 583. So, in an action for 
 words, it suffices to prove so much of the words in any one count as are action- 
 able : Comjyagnon v. Martin, \V. Bl. 790. So, it is sufficient to prove part of the 
 false pretences alleged in an indictment for obtaining money by those means : 
 Rex v. mil, Russ. & R. C. C. 190, So if a plaintiff prove part of his breach of 
 covenant: Barnard v.Duthy, 5 Taunt. (1 E.C. L. R.) 27; or promise: Gardiner 
 V. Crosedale, W. Bl. 198. And see further instances, R. v. Sutton, 4 M. & S. 
 532; Coml)e v. Pitt, 3 liurr. 158G ; Smith v. Hixon, Str. 977; Roberts et ux. v. 
 IlerOert, 1 Sid. 5 ; Spilshury v. Micklethwaiie, 1 Taunt. 146.
 
 VARIANCES — DESCRIPTIVE ALLEGATIONS. 627 
 
 slaughter, for the indictment contains all the allegations essential to 
 that charge; A. is fully apprised of the nature of it, the verdict 
 enables the court to pronounce the proper judgment, and A. may 
 plead his acquittal or conviction in bar of any subsequent indictment 
 founded on the same facts. 
 
 The same principle applies to allegations of number, quantity 
 and magnitude,™ where the proof, pro tanto *supports the r*«9Q-i 
 claim or charge. If a man be charged with stealing ten 
 sovereigns, he may be convicted of stealing five; for when it is 
 proved that he stole five, and the precise sum, quantity or magnitude 
 alleged is not put in issue by the nature of the claim or charge," evi- 
 dence is not admitted of a different offence from that charged, but 
 of the same in legal essence, differing only in quantity, and consti- 
 tuting, therefore, a natural, but no legal variance ; no evidence is 
 received which is not warranted by the allegation, and the party may 
 afterwards plead his conviction or acquittal, notwithstanding the vari- 
 ance as to number. 
 
 But the doctrine as to the sufficiency of partial proof assumes that 
 the evidence, so far as it extends, agrees with the allegations legally 
 essential to the charge or claim ; that is, that what is proved is part 
 of what is alleged, and differs only in quantity or extent. Where 
 an allegation is rejected in toto, it is assumed that the allegations are 
 divisible, and that the averment in question may be so rejected with- 
 out destroying the legal identity of the charge or claim. 
 
 It is a most general rule that no allegation which is descriptive of 
 the identity of that which is legally essential to the claim or charge 
 can ever be rejected. Were it otherwise, and if groof could be ad- 
 mitted which varied from the record, in consequence of the omission 
 to prove any allegation descriptive of an essential particular, it is 
 plain that the proof would no longer agree with the cause of action, 
 or charge alleged, to a7iy extent; they would differ throughout in^ re- 
 spect of that descriptive allegation ; *and as the proof would 
 be more general than the allegations, it would no longer be ^ -I 
 
 ™ Thus, in an action for waste, or cutting down trees, it is sufficient to prove 
 that the defendant cut down part of the number alleged : 2 Roll. Abr. 706 ; 
 Hob. 53. So, in ejectione firmoi for a fourth part of an estate, the plaintiff 
 may recover a third of a fourth : 1 Sid. 239 ; Denn v. Purvis, 1 Burr. 327 ; 
 Gwinnett v. Phillips, 3 T. R. 643 5 Harrison v. Barnbtj, 5 T. R. 248 ; Forty v. 
 Imber, 6 East 434 ; R. v. Gilham, 6 T. R. 265 ; Powell v. Farmer, Peake, C. 57 ; 
 Doe V. Jackson, Dougl. 175. 
 
 " Grant v. Astle, Dougl. 722, note ; Gilbert v. Stanislaus, 3 Price 54 ; Hare v. 
 Cator, Cowp. 766.
 
 629 PROOFS. 
 
 partial proof of the same charge or claim, but of a difFerent and 
 more general one. As an absolute and vafural identity of tlie claim 
 or charge alleged with that proved, consists in the agreement between 
 them in all particulars, so their legal identity consists in their agree- 
 ment in all the particulars legally essential to support the charge or 
 claim; and the identity of those particulars depends wholly on the 
 proof of the allegations and circumstances by which they are ascer- 
 tained, limited and described. To reject any allegation descriptive 
 of that which is essential to the charge or claim would obviously tend 
 to mislead the adversary. The court, in giving judgment on a general 
 verdict, could never be sure that those facts had been proved which 
 were essential to support their judgment ; and the record would afford 
 but very uncertain evidence as to identity, should the same matter be 
 again litigated. It is otherwise where the subject-matter is identified 
 and ascertained independently of the additional description, or where 
 the additional description is not essential to the identity of the subject- 
 matter described ; as if it were alleged that C D. robbed or assaulted 
 
 A. B., wearing a black coat.° 
 
 It seems, indeed, to be an universal rule, that a plaintiff or prose- 
 cutor shall in no case be allowed to transgress those limits which, in 
 point of description, limitation and extent, he has prescribed for 
 himself; he selects his own terms, in order to express the nature and 
 extent of his charge or claim ; he cannot, therefore, justly com- 
 plain that he is limited by them ; to allow him to exceed them 
 ^ ^^^^ *would, for the reasons adverted to, be productive of the 
 •- -^ greatest inconvenience. 
 
 As no allegation, therefore, which is descriptive of any fact or 
 matter which is legally/ essential to the claim or charge, can be re- 
 jected altogether, inasmuch as the variance destroys the legal identity 
 of the claim or charge alleged with that which is proved ; upon the 
 same principle, no allegation can be proved partially in respect of 
 extent or magnitude, where the precise extent or magnitude is in its 
 nature descriptive of the charge or claim. 
 
 If, in an action or indictment for a nuisance, the wrong be alleged 
 to have been continued for twelve months, and proof be given that it 
 
 ° Sec Draper v. Garratt, 2 B. & C. (9 E. C. L. R.) 2; Stoddart v. Palmer, 3 
 
 B. & C. (10 E. C. L. R.) 2. Thus, where a justification in trespass alleged that 
 the plaintiff was fighting with another person, being a passenger with the plain- 
 tiff on Ijoard a vessel of which the defendant was captain ; and that the trespass 
 was committed Jjy the defendant as captain in preserving the peace, it was held 
 unnecessary to prove such other person to have been a passenger : Noden v. 
 Johnson, 20 L. J., Q. B. 95.
 
 VARIANCES — REDUNDANT PROOF. 630 
 
 has been continued for one month only, the variance would be imma- 
 terial, except so far as regarded the damages or punishment ; for the 
 injury or offence would in point of law be the same, whether continued 
 for one month or for twelve; the only difference would be in point of 
 duration. 
 
 But if a contract were to be alleged to serve for twelve months for 
 the sum of £12, and proof were to be given of a contract to serve 
 for one month for the sum of XI, the variance would be material; 
 the precise time, as well as the precise sum, being essential to the 
 contract, and descriptive of the ground of claim. For although a 
 nuisance continued for twelve months be an offence made up of the 
 continuance for each of the several months which make up the 
 twelve ; a contract to serve for twelve months for c£12 is not made up 
 of twelve contracts to serve for a month for <£1 each month, but each 
 is separate and distinct in point of law. 
 
 The same observations apply to proscriptions, and all other cases 
 where precise quantities, sums, duration or extent, are in point of 
 law essential to the identity of an entire subject-matter, and descrip- 
 tive of it.P 
 
 *Again, as the description of facts upon the record must ^ ^ 
 . . . . . r*6311 
 
 necessarily be finite and limited, whilst the detail of those *- -' 
 
 facts in evidence must usually be attended with a multitude of par- 
 ticular circumstances connected with them, it is perfectly clear that 
 whatever minuteness of description may be requisite in stating the 
 claim or charge upon the record, the evidence to prove those allega- 
 tions must usually be still more particular and circumstantial, and 
 consequently that the proof of more particulars^ than are alleged 
 can never be material, provided such additional particulars consist 
 with those which are alleged. The generality of the allegations may 
 indeed constitute a vice in the record itself; but it never gives rise 
 to the objection of variance from the evidence, unless the subject be 
 of so entire a nature that the matter proved, but not alleged, is in- 
 consistent with that which is alleged, and disproves it altogether. 
 
 P The question whether an averment is to be considered as descriptive, and 
 therefore material, depends principally upon the nature of the averment itself 
 and the subject matter to which it is applied. But, 2dly, in many instances 
 the law pronounces averments to be merely formal, which would otherwise, 
 according to the ordinary rule, be deemed descriptive. 3dly, in other instances 
 again, the question depends upon the particular and technical mode in which 
 the averment is framed. As these three classes obviously depend upon the 
 form of the averment, for the reason presently mentioned, instances of them 
 will be reserved for Vol. III., tit Variance.
 
 631 PROOFS. 
 
 If a man were charged with stealing a horse, the property of Jolm 
 Doe, generally, it would be no objection that on the evidence it ap- 
 peared that there were two persons of that name, the elder and the 
 younger ; for if he stole the horse of either, the allegation would be 
 true. But if he were to be charged with stealing the horse of John 
 Doe, and it turned out that the horse was the property of John Doe, 
 and James Doe, the variance might be material ; for the interest of 
 James Doe, thus proved but not alleged, would show that the owner- 
 ship was misdescribed altogether. 
 
 The general result of these principles and inferences seems to be, 
 that in the case of redundant allegations, it is sufficient to prove j)art 
 of what is alleged according to its Hegal effect, provided that 
 L "^^ that which is alleged, but not proved, be neither essential to 
 the charge or claim,"* nor describe or limit that which is essential ;^ 
 and provided also, that the facts proved be alone sufficient in law to 
 support the charge or claim. And that redundancy of proof will 
 not be material, unless that Avhich is proved, but not alleged, contra- 
 dict or disprove that which is alleged. 
 
 Numerous instances of the practical results of the rules which 
 have been thus briefly stated are to be found in the books. These, 
 of course, have been decided upon the application of them to the 
 precise forms of the allegations contained in the pleadings. As 
 these forms will, within a very short period, in all probability, undergo 
 a most extensive change, it will be expedient to defer any detail of 
 the cases to a future volume. Under the heads too of the various 
 actions illustrations of these rules will be found, and were the cases 
 to be detailed here, very great inconsistency might occur between 
 the different portions of the work. Those cases, therefore, which 
 may continue to serve any useful purpose will be collected and set 
 forth hereafter.^ 
 
 It is almost unnecessary to remark, that the consequence of any 
 variance which according to these rules was regarded as material, 
 however slight it might be, was fatal ; and hence arose a practice of 
 setting forth any claim or defence in every possible form in different 
 counts or pleas. The greatest injustice also constantly occurred, 
 from mere literal variances in setting forth written documents upon 
 
 -» Per Al)hott, C. J., 3 B. & C. (10 E. C. L. K.) 122 : " It is a general rule that 
 a variance between the allegation and proof will not defeat a party, unless it be 
 in respeut of matter which if pleaded would be material." 
 
 ^ See the observations of Abbott, C. J., 2 B. & Aid. 363. 
 
 ' See Vol. III., tit. Variance.
 
 VARIANCES — AMENDMENT. 632 
 
 the record. These too were fatal, for the court had no power of re- 
 
 concilinff the record with the evidence. This *was the worst 
 
 . r*0331 
 
 and most palpable class. But there were also cases in which ^ ' J 
 
 it became evident upon the trial, that a real dispute existed between 
 the parties requiring the decision of a court of law ; but the question 
 evolved upon the pleadings differing in some particulars from that 
 upon which the real dispute between the parties turned, the evidence, 
 although perhaps decisive upon the latter question, would in all 
 probability lead to a verdict upon the former, which would leave the 
 real question untouched, while the parties were excluded from all 
 further remedy. In this state of the facts and of the pleadings the 
 parties might have been misled, or they might not. In the latter 
 case, the simple and most obvious mode of correcting the evil, was 
 to mould the question evolved upon the pleadings into that which 
 expressed the dispute between the parties. With this view, and at 
 the same time to preserve the identity of the proposition asserted on 
 the pleadings with that proved by the evidence, the legislature has 
 introduced a power of amending the record, so as to make it corre- 
 spond with the proof at the trial. 
 
 The object was first attempted by Lord Tenterden, in the stat. 9 
 Geo. IV. c. 15, in cases of variance between writings offered in evi- 
 dence and the record which they were offered to prove. That stat- 
 ute, after reciting the great expense, delay and failure of justice, 
 by reason of variances between writings produced in evidence and 
 the recital thereof upon the record, in matters not material to the 
 merits of the case, and that such record could not in any case be 
 amended at the trial, and in some cases could not be amended at any 
 time, enacted, " That it shall and may be lawful for every court of 
 record holding plea in civil actions, any judge sitting at Nisi Prius, 
 and any Court of Oyer and Terminer and general gaol delivery in 
 England, Wales, the town of Berwick-upon-Tweed and Ireland, if 
 such court or judge shall see fit so to do, to cause the record on which 
 any trial may be pending before such judge or court in any civil 
 action, or in *any indictment or information for any misde- r:i;pq4^-l 
 meaner, when any variance shall appear between any matter 
 in writing or in print produced in evidence, and the recital or set- 
 ting forth thereof upon the record whereon the trial is pending, to 
 be forthwith amended in such particular by some officer of the 
 court, on payment of such costs (if any) to the other party as such 
 judge or court shall think reasonable, and thereupon the trial shall 
 proceed as if no such variance had appeared; and in case such
 
 634 PROOFS. 
 
 trial sliall be had at Nisi Prius, the order for the amendment shall 
 be endorsed on the postea, and returned, together with the record, 
 and thereupon the papers, rolls, and other records of the court from 
 which such record issued, shall be amended accordingly." 
 
 The remedial power thus given to the judge in the cases of 
 written evidence, to which alone it was applicable, was found to be 
 so beneficial, that by the Act for the further amendment of the law, 
 3 & 4 Will. IV., c. 42, it was most materially extended. That 
 statute recites, that " Whereas great expense is often incurred, and 
 delay or failure of justice takes place at trials by reason of variances 
 as to some particular or particulars between the proof and the 
 record or setting forth on the record or document, on which the 
 trial is had, of contracts, customs, prescriptions, names and other 
 matters or circumstances not material to the merits of the case, and 
 by the misstatement of which the opposite party cannot have been 
 prejudiced, and the same cannot in any case be amended at the 
 trial, except Avhere the variance is between any matter in writing 
 or in print produced in evidence and the record ; and whereas it is 
 expedient to allow such amendments as are hereinafter mentioned 
 to be made in the cause," and therefore enacts, "that it shall be law- 
 ful for any court of record holding plea in civil actions, and any 
 judge sitting at Nisi Prius, if such court or judge shall see fit so to 
 do to cause the record, writ or document, on which any trial may 
 r^oor-\ be Spending before any such court or judge in any civil 
 action, or in any information in the nature of a quo warranto 
 or proceedings on a mandamus, when any variance shall appear 
 between the proof and the recital or setting forth on the record, writ 
 or document, on which the trial is proceeding, of any contract, 
 custom, prescription, name or other matter, in any particular or 
 particulars in the judgment of such court or judge, not material to 
 the merits of the case, and by which the opposite party cannot have 
 been prejudiced in the conduct of his action, prosecution or defence, 
 to be forthwith amended by some oflScer of the court or otherwise, 
 both in the part of the pleadings where such variance occurs, and in 
 every other part of the pleadings which it may become necessary to 
 amend, on such terms as to payment of costs to the other party, or 
 postponing the trial to be had before the same or another jury, or 
 both payment of costs and postponement, as such court or judge 
 shall think reasonable; and in case such variance shall be in some 
 particular or particulars, in the judgment of such court or judge, 
 not material to the merits of the case, but such as that the opposite
 
 VARIANCES — AMENDMENT. 635 
 
 party may have been prejudiced thereby in the conduct of his action, 
 prosecution or defence, then such court or judge shall have power to 
 cause the same to be amended, upon payment of costs to the other 
 party, and withdrawing the record or postponing the trial as afore- 
 said, as such court or judge shall think reasonable, and after any 
 such amendment the trial shall proceed, in case the same shall be 
 proceeded with, in the same manner in all respects, both with respect 
 to the liability of witnesses to be indicted for perjury or otherwise, 
 as if no such variance had appeared ; and in case such trial shall be 
 had at Nisi Prius, or by virtue of such writ as aforesaid, the order 
 for the amendment shall be endorsed on the postea or the writ, as the 
 case may be, and returned, together with the record or wi'it, and 
 thereupon such papers, rolls or other records of the court from 
 which such record or *writ issued, as it may be necessary to r:^,^qn-| 
 amend, shall be amended accordingly; and in case the trial ~ 
 shall be had in any court of record, then the order for amendment 
 shall bo entered on the roll or other document upon which the trial shall 
 be had. Provided, that it shall be lawful for any party who is dis- 
 satisfied with the decision of such judge at Nisi Prius, sheriif or 
 other ofiicer, respecting his allowance of any such amendment, to 
 apply to the court from which such record or writ issued for a new 
 trial upon that ground : and in case any such court shall think such 
 amendment improper, a new trial shall be granted accordingly, on 
 such terms as the court shall think fit, or the court shall make such 
 other order as to them may seem meet. And it is further enacted, 
 that the said court or judge shall and may, if they or he think fit, 
 in all cases of variance, instead of causing the record or document to 
 be amended as aforesaid, direct the jury to find the fact or facts 
 according to the evidence, and thereupon such finding shall be stated 
 on such record or document, and notwithstanding the finding on the 
 issue joined, the said court or the court from which the record has 
 issued shall, if they think the said variance immaterial to the merits 
 of the case, and the misstatement such as could not have prejudiced 
 the opposite party in the conduct of the action or defence, give judg- 
 ment accoiding to the very right and justice of the case." 
 
 Under this statute the judge at Nisi Prius will amend any vari- 
 ance which does not really affect the matter in dispute, and Avhich 
 was not likely to mislead the opposite party.' Thus, for example, 
 he Avill amend the statement of a promise in the declaration 
 although it be not a promise expressly made, but merely the legal 
 ' Hemming v. Parri/, 6 C. & P. (25 E, C. L. R.) 580; per Alderson, B.
 
 636 PROOFS. 
 
 result of the facts there stated, if it be incorrectly drawn, by sub- 
 stituting the correct legal result of those facts." So he will 
 L -I *amend the statement of the nature of the promise from an 
 absolute to a collateral promise, as where it was alleged to be a pro- 
 mise to pay for goods to be supplied to a third person, and was in 
 fact a promise to guaranty the payment of such goods, he will cause 
 the term guaranty to be substituted for pay.'' But where the con- 
 sideration alleged for a promise was that the plaintiff would make 
 advances, the judge refused to substitute as the consideration that 
 the plaintiff would procure a company so to do, although he was a 
 partner in that company."" Nor will he amend by introducing an 
 entirely different contract,^ as by substituting an agreement for a 
 lease, wherein the breach should be having no title to grant it, for 
 the statement of an actual demise whereby the plaintiff promised that 
 the defendant should enjoy without eviction.'' 
 
 By the stat. 14 & 15 Vict. c. 100, very similar powers of amend- 
 ment are extended to criminal cases. That statute enacts,'' "That 
 whenever on the trial of any indictment for any felony or misde- 
 meanor there shall appear to be any variance between the statement 
 in such indictment and the evidence offered in proof thereof, in the 
 name of any county, riding, division, city, borough, town corporate, 
 parish, township, or place mentioned or described in any such indict- 
 ment, or in the name or description of any person or persons, or 
 body politic or corporate, therein stated or alleged to be the owner 
 or owners of any property, real or personal, which shall form the 
 subject of any offence charged therein, or in the name or description 
 of *any person or persons, body politic or corporate, therein 
 L * -I stated or alleged to be injured or damaged, or intended to be 
 injured or damaged by the commission of such offence, or in the chris- 
 tian name or surname, or both christian name and surname, or other 
 description whatsoever, of any person or persons whomsoever therein 
 
 " Whiiwell v. Scheer, 8 A. & E. (35 E. C. L. R.) 301 ; Smith v. Bradshaw, 9 
 Dowl. 430. 
 
 " Ilanbury v. Ella, 1 A. & E. (28 E. C. L. R.) 61 ; and see Guest v. Elwes, 5 
 A. & E. (31 E. C. L. R.) 118. 
 
 " Boucher v. Murray, 6 Q. B. (51 E. C. L. R.) 362. 
 
 ^ Brashier v. Jackson, 6 M. & W. 549. 
 
 y These instances will serve to illustrate the principle on which the courts 
 have acted upon this statute ; but for the reason above mentioned (p. 631, note), 
 such of the other decisions as may hereafter be found useful will be collected in 
 a future volume, under the head of Variance. 
 
 • Upon this statute no decisions have yet been reported.
 
 AMENDMENT — MATTERS ADMITTED. 638 
 
 named or described, or in the name or description of any matter or 
 thing whatsoever therein named or described, or in the ownership 
 of any property named or described therein, it shall and may be 
 lawful for the court before which the trial shall be had, if it shall 
 consider such variance not material to the merits of the case, and 
 that the defendant cannot be prejudiced thereby in his defence on 
 such merits, to order such indictment to be amended, according to 
 the proof, by some officer of the court, or other person, both in that 
 part of the indictment where such variance occurs, and in every 
 other part which it may become necessary to amend, on such terms 
 as to postponing the trial to be had before the same or another jury, 
 as such court shall think reasonable; and after any such amendment 
 the trial shall proceed, wdienever the same shall be proceeded with, 
 in the same manner, in all respects, and with the same consequences, 
 both with respect to the liability of witnesses to be indicted for per- 
 jury and otherwise, as if no such variance had occurred ; and in case 
 such trial shall be had at Nisi Prius, the order for the amendment 
 shall be endorsed on the postea, and returned, together with the re- 
 cord ; and thereupon such papers, rolls, or other records of the court, 
 from which such record issued as it may be necessary to amend, shall 
 be amended accordingly by the proper officer, and in all other cases 
 the order for the amendment shall either be endorsed on the indict- 
 ment or shall be engrossed on parchment, and filed, together with the 
 indictment, among the records of the court : provided, that in all 
 such cases where the trial shall be so postponed as aforesaid, it shall 
 be lawful for such court to respite the recognisances of the prosecutor 
 and witnesses, and of the defendant and *his surety or sure- 
 ties, if any, accordingly ; in which case the prosecutor and ^ -■ 
 witnesses shall be bound to attend to prosecute and give evidence 
 respectively, and the defendant shall be bound to attend to be tried, 
 at the time and place to which such trial shall be postponed, without 
 entering into any fresh recognisances for that purpose, in such and 
 the same manner as if they were originally bound by their recogni- 
 sances to appear and prosecute or give evidence at the time and place 
 to which such trial shall have been so postponed : Provided, also, that 
 where any such trial shall be to be had before another jury, the 
 Crown and the defendant shall respectively be entitled to the same 
 challenges as they were respectively entitled to before the first jury 
 was sworn." 
 
 In the next place, it is a rule, that no evidence is necessary to prove 
 any material allegation which is agreed upon by the pleadings, or 
 38
 
 639 PROOFS. 
 
 document, on which the trial is had ; for the jury are sworn to try 
 the matter in issue between the parties, and no other question is be- 
 fore them." The party therefore who makes any material and traver- 
 sable allegation,'' which his antagonist does not ^traverse, 
 *- -'is not required to sustain it by any proof; and, for the same 
 reason, evidence to disprove it is not admissible.'' Thus, if the defend- 
 ant in replevin avow the taking the cattle damage-feasant in the locus 
 in quo, as parcel in the manor of K., and the plaintiff make title to 
 the manor of K., and traverse that the manor is the freehold of the 
 defendant, the plaintiff cannot prove that IC. is no manor, for that is 
 admitted by the traverse. ** And the jury cannot find against the 
 
 » B. N. P. 298 ; Wimhish v. TaUhois, Plowd. 48 ; Dunford v. Tratiles, 12 M. 
 & W. -59. Of course the admission does not extend beyond what is alle^red on 
 the record : Williams v. Sills, 2 Camp. 519. Where the defendant pleaded, to 
 an action of trespass, a custom applicable to all farms in the parish not ex- 
 cepted by special agreement, which custom the plaintiff traversed, he was not 
 allowed under this issue to prove that his farm (the locus in quo) was excepted 
 by special agreement: Evans v. Ogilvie, 2 Y. & J. 79. But a matter is not ad- 
 mitted which is impliedly, although not expressly, traversed : Dunstan v. Tresi- 
 der, 5 T. R. 2. 
 
 " Conling v. Coxe, 6 C. B. (60 E. C. L. R.) 703 ; King v. Norman, 4 C. B. (56 
 E. C. L. R.) 884 ; Bennion v. Davison, 3 M. & W. 179 ; Grew v. Hill, 3 Ex. 801 ; 
 Gale V. Lewis, 9 Q. B. (58 E. C. L. R.) 730. In trespass for entering the plain- 
 tiff's house and taking his goods, the defendant pleaded a justification under a 
 writ of execution against the goods of ^. i?.,and a warrant thereunder, delivered 
 to the defendant, a bailiff, to be executed, under which he entered and seized 
 the plaintiff's goods. The plaintiff replied, admitting the writ, warrant and 
 delivery thereof to the defendant, but traversing the rest of the plea. It was 
 held, that the defendant was not bound to prove the warrant: Heicitt v. Macquire, 
 21 L. J. Ex. 90. 
 
 " Bonzi V. Steward, 4 M. & G. (43 E. C. L. R.) 295 ; Needham v. Fraser, 1 C. 
 
 B. (50 E. C. L. R.) 815 ; Fegg v. Stead, 9 C. & P. (38 E. C. L. R.) 636 ; Guy v. 
 Gregorij, 9 C. & P. (38 E. C. L. R.) 584; Givynne v. Sharpe, Car. & M. (41 E. 
 
 C. L. R.) 532. 
 
 ^ Guy v. Gregory, supra; see tit. Wav. The question whether a seizure was 
 under the writ or not is left open : Carnaby v. Welby, 8 A. & E. (35 E. C. L. R.) 
 872. So, in Colishaw v. Cheslyn, 1 C. & J. 48, where it was averred that one 
 was seised in fee, and being so seised granted, a traverse of the grant admits 
 the seisin in fee. And where a pleading stated that a corporation was seised in 
 fee, and being so seised by indenture demised to H. for lives, and delivered 
 seisin to him, who thereby became and was seised, and being so seised granted 
 a riglit of wiiy over the locus in quo, and a grant of the right of way is traversed. 
 By this traverse all the previous steps of the derivative title are admitted. 
 Cooke V. Blake, 1 Ex. 220. Where a plea justified an imprisonment, under an 
 order of the judge of the Sheriff's Court of London, for non-payment of money 
 recovered there, and set forth various proceedings in the cause necessary to give
 
 QUALITY OF EVIDENCE. 640 
 
 admissions of the parties on the record, though they be contrary to 
 
 the truth ; but in other cases, as has been seen,*^ the jury are not 
 
 estopped to find tlie truth, though the parties are. But where there 
 
 are several issues ioine<l,^ *an admission evolved in one does 
 
 ... r*641'' 
 
 not operate as an admission in relation to any other. Nor •- -^ 
 
 are the statements of a party in a declaration or plea, though for the 
 
 purposes of the issue he is bound by those which are material, and 
 
 the evidence must be confined to them upon an issue, to be treated 
 
 (it would seem) as confessions of the truth of the facts stated.^ 
 
 Next, as to the quality of the evidence to be adduced by the 
 parties. 
 
 It is the peculiar province of the jury to decide upon the force 
 and effect of the evidence submitted to them ; but, as has already 
 been seen, the law, by many rules of a negative nature, excludes 
 
 jurisdiction, and stated that the judge duly made the order, which hist aver- 
 ment was traversed : it was held that the proceedings set forth were not in- 
 cluded in the last averment, but were admitted : Buchanan v. Kinninc/, 20 L. -J., 
 C. P. 252, in Cam. Scacc. So, in an action on a bond, with the plea that there 
 was a usurious agreement between the parties, and that the bond was given in 
 pursuance of it, a denial of the latter allegation admits the former: Carter v. 
 James, 13 M. & W. 137. 
 
 ® Supra ; and see B. N. P. 298 ; GoddarcVs case, 2 Co. 4. 
 
 ^ E. g. A plea of set-off is not evidence of the debt sued for and denied in 
 another plea. The same I'ule applies to a particular set-off, it being virtually 
 part of the plea : Burkitt v. Blansliard, 3 Ex. 89 ; Harrington v. Macmorris, G 
 Taunt. (1 E. C. L. R.) 228 ; Willes 380 ; Stracy v. Blake, 1 M. & W. 168 ; GoiiJd 
 V. Oliver, 2 M. & G. (40 E. C. L. R.) 208. In an action of replevin, the defend- 
 ant avowed upon a distress for rent arrear, to which the plaintiflF pleaded : first, 
 that he tendered the rent; and secondly, that he did not hold under the defend- 
 ant. It was held that the plea of tender and evidence thereof were not together 
 evidence of the holding as traversed by the second plea ; Knight v. McDonell, 12 
 A. &E. (40 E. C. L. R.) 438. 
 
 2 Boileau v. Rutlin, 2 Ex. 681. 
 
 It is clear from all the cases just quoted, that the judge is bound to tell the 
 jury what is admitted by the pleadings ; but a question has occurred whether 
 what is so admitted is evidence upon the issue joined, so as to warrant the jury 
 in drawing any inference from it as to that issue. This has given rise to much 
 discussion, and it may be that if a party wishes the jury to draw any inference 
 he must establish the facts from which that is to be drawn by evidence, accord- 
 ing to which they are sworn to find their verdict. See the cases, ante, p. 592, 
 note {t) ; and Robins v. Lord Maidstone, 4 Q. B. (45 E. C. L. R.) 811. For, as 
 Cresswell, J., observes, in Fearn v. Filica, 7 M. & G. (49 E. C. L. R.) 573: " If 
 the rule be not that an admission on the record is not to be taken to prove the 
 issue, this singular state of circumstances might arise : counsel might ask a 
 jury, from the mere state of the record, to infer a fact which was directly in 
 issue." Dunstan v. Tresider, ante, p. 639.
 
 641 PROOFS. 
 
 from their consideration some matters, on account of their general 
 tendency to mislead and to create prejudice, rather than to promote 
 the cause of truth. One of the most important rules upon this 
 
 *subiect is that which requires that the best attainable evi- 
 
 r*6421 
 
 L ''J dence shall be adduced to prove every disputed fact. This 
 
 rule has already been adverted to, though but slightly, inasmuch as 
 its effect is not to exclude any of the materials of evidence in the 
 abstract, but only by comparison of the evidence offered with that 
 which might have been produced, but which has been suspiciously 
 withheld. 
 
 The ground of this rule*" is a suspicion of fraud. If it appear 
 from the very nature of the transaction that other and better evi- 
 dence of the fact is withheld, a presumption arises that the party 
 has some secret and sinister motive for not producing the best and 
 most satisfactory evidence, and is conscious that if the best were to 
 be afforded, his object would be frustrated : subject, then, to the 
 observations which will be made upon the operation of this rule, 
 it follows, that of the several gradations in the scale of evidence, 
 no evidence of an inferior class can be substituted for that of a 
 superior degree. It is a very general rule, that the contents of a 
 writing cannot be proved by a copy,' still less by mere oral evi- 
 dence, if the writing itself be in existence and attainable.'' If a 
 deed be lost, a copy has been held not to be evidence if a counter- 
 part exist.^ And, except on special grounds, no declaration 
 L -I *or entry by any person can be given in evidence, where the 
 party who made such declaration or entry can be produced and ex- 
 
 •^ B. N. P. 293-4 ; supra, p. 500. 
 
 ' Supra., pp. 499, 500. To prove an insurance from fire, the books of the 
 company are not the best evidence. The policy itself must be produced : R. v. 
 Doran, 1 Esp. C. 127 ; Kenyon, C. J., 1791. 
 
 ■^ Siqjra, p. 530. See the observations of Lord Tenterden, in the case of Vin- 
 cent v. Cole, M. & M. (22 E. C. L. R.) 258 ; as to the extreme danger of relying 
 on the recollection of witnesses, however honest, as to the contents of written 
 instruments; and see also The Queen's case, 2 B. & B. (6 E. C. L. R.) 287, 
 supra; Crowley v. Page, 7 C. & P. (32 E. C. L. R.) 790; Strother v. Barr, 5 
 Bing. (15 E. C. L. R.) 151 ; Vol. II., tit. Assumpsit, Ejectment, Title op 
 Landlord. 
 
 ' Supra, p. 542. But this seems very questionable : see Doe v. Wainioright, 
 5 Ad. & E. (31 E. C. L. R.) 523. The commissioners under an Enclosure Act, 
 having made minutes of their proceedings, held, that parol evidence of the 
 divisions and allotments was inadmissible, the minutes of the commissioners 
 not being produced or accounted for : Bendi/she v. Fearse, 1 B. & B. (5 E. C. L. 
 R.) 400.
 
 QUALITY OF EVIDENCE. 643 
 
 amined as a witness.™ These are well known definite gradations of 
 evidence, to which the principles may be applied without much diffi- 
 culty. Thus, upon a question, whether the Abbey de Sentibus was 
 an inferior abbey or not, Dugdale's Monasticon Anglicanum was 
 rejected, because the original records might be had at the Augmen- 
 tation Office." 
 
 This rule relates not to the measure and quantity of evidence, but 
 to its quality when compared with some other evidence of superior 
 degree. It is not necessary, in point of law, to give the fullest 
 proof that every case may admit of. A will of lands may be 
 proved by one witness only." If there be several eye-witnesses 
 to a particular fact, it may be proved by the testimony of one 
 only. 
 
 *Where the defendant, in order to disprove the right r^nAA-\ 
 claimed by the plaintiflF to erect certain hatches on a river, 
 oiFered in evidence ancient articles of agreement between persons 
 standing in the respective situations of the plaintiff and defendant ; 
 ;ind the defendant's attorney produced the deed, and said he received 
 it from the son of the owner of the defendant's land ; and on the 
 objection being taken that this was insufficient, the father was called, 
 whose testimony was objected to on the score of interest ; it was 
 held that the deed was inadmissible, for the testimony of the father 
 had been objected to, and the next best evidence had been given. ^ 
 
 " Even althoufrh the parties to be called would criminate themselves by the 
 proof required : Edmondstone v. Wehh, 3 Esp. C. 264 ; The Queen!' s case, 2 B. 
 & B. (6 E. C. L. R.) 311 ; or be abroad, ante, p. 474. 
 
 ° Salk. 281. Oaths taken by a preacher under the Toleration Act are matter 
 of record, and cannot be proved by parol evidence : B. v. Hube and others, 
 Peake's C. 132. To prove that A. was chosen constable, the wardmote book, 
 containing an account of the election, should be produced ; a list from the town 
 clerk's office of the persons sworn in to serve the office, in which the name of 
 
 B. appears as having been sworn as substitute for A., is not the best evidence '■ 
 Underhill v. Witts, 3 Esp. C. 56. 
 
 ° See tit. Will ; B. N. P. 264. So, handwriting may be proved by another, 
 without calling the writer : see Hughes'' case, 2 East P. C. 1002 ; ilf' Guire^s 
 case. Ibid. ; for other illustrations, see Leihman v. Pooley, 1 Starkie's C. (2 E. 
 
 C. L. R.) 167; and tit. Agent, Perjury. Where consent is to be negatived, 
 even in a criminal case, it is not absolutely necessary that the party himself, 
 whose consent is required to be negatived, should be called. As upon indict- 
 ments for unlawfully killing deer or taking fish : Allen'' s case, 1 Mood. C. G. 
 154, before the judges ; Hazy's case, 2 C. & P. (12 E. C. L. R.) 458, overruling 
 R. V. Rogers, 2 Camp. 654, in this respect. See ante, p. 594. 
 
 P Carol V. Jeans, cor. Ilolroyd, J., Dorch. Sp. Ass. 1819 ; Manning's Ind. 375 
 2d edit.
 
 644 PROOFS. 
 
 Nor does it apply in any case, unless the evidence proposed be in 
 its seneral nature of an inferior degree to that for which it is sought 
 
 o O o 
 
 to be substituted. It is not sufficient that it may probably be less 
 satisfactory in the particular instance. Where a plaintiff proved 
 notice to the defendant to produce a letter written by him to the 
 defendant, it was held that the plaintiff was at liberty to prove the 
 contents by any witness who knew them, and that he was not obliged 
 to call the clerk who wrote the letter.^ 
 
 The rule assumes, that from the nature of the transaction superior 
 evidence may be had ; and therefore it never excludes evidence, which 
 is the best that can be then produced by the party/ ^ Hence if a 
 
 1 Liehman v. PooJey, 1 Starkie's C. (2 E. C. L. R.) 167. 
 
 "■ Gilb. Ev. 3, 4 ; B. N, P. 294. Where, on principles of public policy, a 
 document cannot be read in evidence, the effect will be the same as if it was 
 not in existence : Cooke v. Maxivell, 2 Starkie's C. (3 E. C. L. R.) 483. There- 
 fore, where such a document contains an order from a public officer, no evidence 
 can be given of its contents, but it may be shown that what was done was done 
 by the order of such officer : Ibid. 
 
 ^ Evidence of an inferior nature, which supposes evidence of a hi<fher nature 
 in existence, cannot be received : Taunton Turnpike v. Whiting, 10 Mass. 327 ; 
 Commonwealth v. James, 1 Pick. 375 ; United States v. Gibert, 2 Sumn. 19 ; 
 Murdecai v. Beat, 8 Port. 529. A seizure and sale on a distress warrant, the 
 proceedings on which are required to be in writing, cannot be proved by parol : 
 Myers v. Smith, 27 Md. 71. When a contract of sale appears to have been 
 made by letters, they are the only competent evidence of it: Steele v. Etheridge, 
 15 Minn. 501. A printed advertisement is not admissible where it is shown 
 that it was copied from a manuscript, and the manuscript is not accounted for : 
 Sweigartv. Loiomartin, 14 S. & R. 200. As between living witnesses, one is not 
 to be excluded because another had a better opportunity of knowing a fact 
 deposed to : Governor v. Roberts, 2 Hawks 26. The contents of letters which 
 are lost may be shown by any one, without accounting for the non-production 
 of the person to whom they are written : Drish v. Davenport, 2 Stew. 266. In 
 a trial under an indictment for uttering a forged bank note, an officer of the 
 bank ought to be examined : State v. Petfg, Harper 59. Parol evidence is not 
 admissible if there be written evidence to the same point within the power of 
 tlie party offering it: Cloud v. Patterson, 1 Stewart 394; Mc Williams v. Willis, 
 1 Wash. 199 ; Sebree v. Dorr, 9 Wheat. 558 ; Davis v. Robertson, 1 Rep. Const. 
 Ct. 71 ; ])e Tastct v. Croussillat, 2 Wash. C. C. 132; Buell v. Cook, 5 Conn. 
 206 ; Rusk V. Sowerwine, 3 liar. & Johns. 97 ; Thornton v. Moody, 2 Fair. 253. 
 Though a plaintiff goes through his proof without objection and rests his cause, 
 if he has proved by parol a piece of written evidence, which ought to be pro- 
 duced, it is not too late for the defendant to object that the writing should be 
 produced : Southwick v. Hayden, 7 Cow. 334. See also Anderson v. Suggs, 42 
 Ga. 265 ; Knell v. Colebrook, 35 Conn. 188 ; Camden R. R. Co. v. Stewart, 4 
 Green 343. The fact of a tenancy by a party holding under a written lease
 
 BEST EVIDENCE — EXCEPTIONS. 644 
 
 deed or other written document be lost, or be in the hands of the 
 adversary, who refuses to produce it,^ a copy of it is admissible. If 
 a witness to a bond be dead, or be beyond seas, *out of the r-jfaAtri 
 jurisdiction of the court, it may be read upon proof of his 
 handwriting.' So where the witnesses are dead, their depositions or 
 their declarations made when they were in extremis frequently become 
 evidence. Where a prisoner's examination, taken in writing before 
 the coroner, could not, in consequence of an irregularity in the latter, 
 be read, it was held that the coroner might be asked as to what the 
 prisoner said on that occasion." 
 
 Neither is the rule strictly adhered to where a mere negative is 
 
 ^ See Written Instrument, Proof of, ante, pp. 543, 568. 
 
 ^ Ante, p. 312. 
 
 ° B. V. Beed, M. & M. (22 E. C. L. R.) 403. 
 
 may be proved by parol : Bayner v. Lee, 20 Mich. 384. Parol evidence is 
 admissil)le to show that a certain person was confined in the penitentiary, 
 although the warden is required by law to keep a journal in which a regular 
 entry is made of the reception and discharge of prisoners : Hanson v. Comm., 
 1 P. F. Smith 332. In a suit by an attorney for fees, parol evidence is not 
 admissible to show that he instituted certain suits for defendants : Hughes v. 
 Christy, 26 Tex. 230. Parol evidence is admissible to prove who are the officers 
 of a corporation : Broicn v. La Crosse City Gas Co., 21 Wis. 51. Though a 
 written instrument has no stamp, the original contract may be proved by parol, 
 if not within the Statute of Frauds : McAfferty v. Hale, 24 Iowa 355. Where a 
 written contract is executed in duplicate, it is not error to allow the contract 
 held by one party to be read in evidence before the duplicate in the hands of 
 the other party has been produced or its absence accounted for: Cleveland B. 
 B. Co. v. Perkins, 17 Mich. 296. Parol evidence is admissible to prove that a 
 road is a highway, although there is no evidence that it was ever laid out as 
 such : Woburn v. Henshaio, 101 Mass. 193. In an action for a railroad sub- 
 scription, one of the conditions of which was that the company should contract 
 for grading, &c., the fact may be shown by parol evidence: St. Louis B. B. Co. 
 V. Eakins, 30 Iowa 279. The fact of the issuing of an execution may be shown 
 by parol evidence : Supples v. Lewis, 37 Conn. 568. It is not necessary to pro- 
 duce the military records. They are kept for the uses of the army, and not as 
 evidence between individuals: Wilson v. McClure, 50 111. 366. The fact of 
 enlistment and mustering into the military service of the United States may be 
 proved by parol evidence : Wayland v. Ware, 104 Mass. 46. When the matter 
 is wholly collateral, and between other parties, in which defendant had no 
 interest, the plaintiff may give parol evidence of contents of a written contract: 
 Oates V. Kendall, 67 N. C. 241. The questions how many terms of court were 
 held in a certain year, what judge presided and whether juries were in attend- 
 ance, though these are facts which might appear from the records, are in the 
 nature of matters in fact, and may be proved by parol evidence : Massey v. 
 Westcott, 40 111. 160.
 
 645 PROOFS. 
 
 to be proved, especially where it results from inspecting documents 
 of a voluminous nature." And though a witness cannot give evi- 
 dence of accounts not produced, he may, it seems, be examined as 
 to the general state of such accounts, or he may give evidence of 
 the general course of trade, as that the practice has been to accept 
 bills in a particular form, according to one invariable course of deal- 
 ing.^ In Rowe v. Brenton^^ a witness was allowed to state the result 
 of his examination of a number of old records, and to prove their 
 correspondence with one which had been read. So, a witness may 
 be examined as to the general result of inquiries from accounts 
 rendered by a bankrupt, of his affairs as to his solvency at a particular 
 time.'' And, in general, where evidence is given as to introductory 
 r*fi4fi1 ^^ collateral matters, *whlch did not depend at all upon 
 the particular form or contents of the instrument, such evi- 
 dence, though perhaps not strictly warranted, is, for convenience 
 sake, usually admitted in practice without objection. 
 
 Again, as the rule was intended to guard against fraud, its opera- 
 tion ceases where the presumption of fraud does not arise ; conse- 
 quently, it does not apply where the law itself raises a presumption 
 under particular circumstances. And, therefore, in general, in order 
 to prove that a particular person Avas a magistrate or constable, it is 
 sufficient to prove that he acted as such ; for then, in the absence of 
 evidence to the contrary, it is to be presumed that he was duly and 
 legally appointed.^ The rule, as Avell as the principle, seems to 
 extend to all public officers." It has been held to extend to persons 
 acting as Lords of the Treasury f to one acting as a surrogate in 
 
 ^ AVhere, in order to show the insolvent state of the party before bankruptcy, 
 the assignees (phiintiifs) offered the ledger of the bankers of the bankrupt to 
 prove that he had no funds in their hands ; it was held, that it was properly 
 received to prove the negative, without calling the different clerks who made 
 the entries, although it might not be admissible to prove the affirmative : Furness 
 V. Cope, 5 Bing. (15 E. C. L. R.) 114. 
 
 y Roberts v. Doxon, Peake's C. 83 : Spencer v. Billing, 3 Camp. 310. But if 
 the mode of dealing has varied, the bills must be produced. 
 
 ^3M. &R. 212. 
 
 » Assignees of Mayer v. Sefton, 2 Stark. C. (3 E. C. L. R.) 274. Lord Kcnyon 
 had received similar evidence, see Topham v. M'Gregor, 1 C. & K, (47 E. C. L. 
 R.) 320, ante, p. 176. 
 
 '' See, per Bullcr, J., Berryman v. Wise, 4 T. R. 3G6 ; Gordon's case, 1 Leach 
 C. C. 'A'i ;per Parke, B., M'Gahey v. Alston, 2 M. & W. 208. So, that a justice 
 was of the quorum from his having acted as such: R. v. Vickcry, 12 Q. B. (64 
 E. C. L. R.) 484. 
 
 « M-Gahey v. Alston, 2 M. & W. 209 ; Canad v. Cartis, 2 Bing. N. C. (29 E. 
 C. L. R.) 228. 
 
 * R. V. Jones, 2 Camp. I'il.
 
 BEST EVIDENCE — EXCEPTIONS. 646 
 
 the Ecclesiastical Court ;Mo a public commissioner for taking affi- 
 davits •/ to a sheriff, under-sheriff, or replevin clerk ;^ to a Master in 
 Chancery, acting under a special appointment from the Lord Chan- 
 cellor to issue fiats in bankruptcy ;'' to constables and watchmen, act- 
 ing under local commissions appointed by Act of Parliament ;' to 
 trustees under a turnpike act ;^ to commissioners under a local act to 
 raise a church rate ;' to churchwardens and *oversecrs ;™ to |-*p4Y-| 
 an army surgeon ;" so, where the plaintiff proved his acting 
 as -vestry clerk ;° so, in the case of a revenue officer.'' The rule ap- 
 plies, although the officer is himself suing or defending, and that too 
 in respect of his being such officer/' The rule does not extend to 
 persons acting under private authority, as to a tithe collector/ Nor 
 to assignees of a bankrupt.^ 
 
 ^ R. V. Verelst, 3 Camp. 432 ; R. v. Cresswell, London Sittings after M. 1816 ; 
 
 1 Phill. on Ev., 9th edit. 433. 
 
 f R. V. Howard, 1 M. & Rob. 187 ; R. v. Newton, 1 C. & K. (47 E. C. L. R.) 
 480 ; Bunhury v. Mathews, Ibid. 380. 
 
 e Doe V. Brawn, 5 B. & Aid. (7 E. C. L. R.) 243 ; Plumer v. Brisco, 11 Q. B. 
 (63 E. C. L. R.) 46. 
 
 » Marshall v. Lamb, 5 Q. B. (48 E. C. L. R.) 115. 
 
 * Butler V. Ford, 1 C. & M. 662. 
 
 ^ Pritchard v. Walker, 3 C. & P. (14 E. C. L. R.) 212. 
 
 1 R. V. Murphy, 8 C. & P. (34 E. C. L. R.) 310. 
 
 "^ Does V. Barnes, 8 Q. & B. (55 E. C. L. R.) 1037. 
 
 ° Milhanke v. Grant, 3 Q. B. (43 E. C. L. R.) 690. 
 
 ° M Galley v. Jlston, 2 M. & W. 211. 
 
 p See 26 Geo. III., c. 77, s. 13, and Ibid. c. 82, s. 6 ; 7 & 8 Geo. IV., c. 53, s. 
 17 ; 8 & 9 Vict. c. 87, s. 131 ; 8 & 9 Vict. c. 85, s. 7, and c. 93, s. 75 ; see tit. 
 Presumptions, Officer, post. 
 
 •J M'' Galley y. Alston, supra, where he was nominal plaintiff: Cannellv. Curtis, 
 
 2 Ring. N. C. (29 E. C. L. R.) 228 ; where he sued for a libel on him in his 
 character of overseer : Doe v. Barnes, supra, where churchwardens and over- 
 seers sought to recover a parish house : Butler v. Ford, supra, where constables 
 were sued for an act done as such ; and see Gordon'' s case, supra ; R. v. Borrett, 
 6 C. & P. (25 E. C. L. R.) 124 ; and R. v. Rees, 6 C. & P. (25 E. C. L. R.) 606; 
 where the prisoner was employed in the post-office, and was indicted for 
 embezzling a letter while so employed. So, in R. v. Tuwnsend, Car. & M. (41 
 E. C. L. R.) 178. It seems questionable, where there is an issue upon the fact 
 of the appointment to an office, whether that must not be regularly proved. 
 Thus, where the appointment of town clerk by a corporation was in issue, an 
 appointment under seal was required: R. v. Stamford, 5 Q. B. (51 E. C. L. R.) 
 433. So, of the office of coalmeter : Smith v. Cartwright, 20 L. J., Ex. 401, in 
 Cam. Scacc. ; and see Moises v. Thornton, 8 T. R. 303 ; Collins v. Carnegie, 1 
 Ad. & E. (28 E. C. L. R.) 695. 
 
 ' Short v. Lee, 2 J. & W. 468. 
 
 « Passmore v. Bousjield, 1 Stark. C. (2 E. C. L. R.) 296.
 
 r 
 
 647 PROOFS. 
 
 So, where a document is of a public nature, a copy of it is evi- 
 dence; for the production of the original is dispensed with on 
 account of the inconvenience which would result from tlie frequent 
 removal of public documents, and consequently, the absence of the 
 original affords no presumption of fraud; and the probability of 
 fraud is much diminished by the consideration that it would be liable 
 to easy detection by reference to so accessible an original.* For 
 r*648"l *^'^® reasons, inscriptions on tombstones, walls and fixed 
 tables, are usually proved by oral evidence." 
 
 The rule does not apply where the adversary has admitted the fact 
 which is to be proved; for he is in general barred by his own admis- 
 sion or representation, and cannot complain that his own statement 
 is believed.^ 
 
 It is likewise a general and most inflexible rule, that wherever 
 written instruments are appointed, either by the requirement of law 
 or by the compact of parties, to be the repositories and memorials of 
 truth, any other evidence is excluded from being used, either as a 
 substitute for such instruments or to contradict or alter them. This 
 is a matter both of principle and policy: of 'principle, because such 
 instruments are in their own nature and origin entitled to a much 
 higher degree of credit than parol evidence ; of policy, because it 
 would be attended with great mischief, if those instruments upon 
 which men's rights depended were liable to be impeached by loose 
 collateral evidence.-^ 
 
 ' Supra, tit. Public Documents; infra, Vol. II., tit. Character. 
 
 ° Doe V. Cole, 6 C. & P. (25 E. C. L. R.) 360 ; R. v. Furseij, 6 C. & P. (25 E. 
 C. L. R.) 84. 
 
 * Slatterlie v. Pooley, 6 M, & W. G64 ; and ante, pp. 505, 506 ; see also Vol. 
 II., tit. Admission. 
 
 ^ Parol evidence is inadmissible to contradict, vary or alter a written con- 
 tract : Shankland v. Washington, 5 Pet. 390 ; Perrine v. Cheeseman, 6 Halst. 
 174; Spencer V. Tilden, 5 Cow. 144; United States v. Thompson, 1 Gall. 388; 
 Bowj/er v. Martin, 6 Rand. 525 ; Jones v. Warner, 11 Conn. 40 ; Creery v. Holly, 
 14 Wend. 26; Singleton v. Fore, 7 Miss. 515; State v. Stites, 1 Green 172; 
 Mead v. Steger, 5 Port. 498 ; Hull v. Adams, 1 Hill 601 ; Featherstone v. Wilson, 
 4 Pike 154; Eice v. Woods, 21 Pick. 30 ; Cole v. Handley, 8 S. & M. 473 ; Beck- 
 ley v. Manson, 22 Conn. 299; McCloslcey v. McCormiclc, 37 111. 66; Snyder v. 
 Griswold, Il)id. 216 ; Warren v. Crew, 22 Iowa 315 ; Aldric.lc's adm. v. Hapgood, 
 39 Vt. 617; Wintermate v. Light, 46 Rarb. 278 ; Collins v. Baumgardner, 2 P. 
 F. Smith 461 ; Freeman v. Bass, 34 Ga. 355; Shreveport v. Le Rosen, 18 La. 
 Ann. 577 ; Wren v. Hoffman, 41 Miss. 616 ; Buckley v. Bentley, 48 Barb. 283; 
 Sahercool v. Fareivell, 17 Miss. 308 ; Martin v. Thrasher, 40 Vt. 460 ; Herndon 
 V. Henderson, 41 Miss. 584 ; Doyle v. Dixon, 12 Allen 57 ^j ; Babbitt v. Young, 51
 
 PAROL EVIDENCE NOT ADMISSIBLE, ETC. G48 
 
 The rule may be thus generally stated, viz., that oral evidence 
 shall in no case be received as equivalent to, or as a substitute for, a 
 written instrument, where the latter is required by law,^ or to give 
 effect to a written instrument, which is defective in any particular 
 which by law is essential to its validity ;^ or to contradict, alter or 
 vary'^ a written instrument, cither appointed by law or by the com- 
 
 y Infra, p. 649. ^ Infra, p. 560, et seq. 
 
 * Infra, p. 65.5, et seq. 
 
 Barb. 466 ; Huffman v. Hummer, 2 Green 269 ; Whyle v. Arthur, Ibid. 521 ; 
 Whitman v. Revels, 39 Ala. 121 ; Moody v. McCown, Ibid. 586 ; Boon v. Belfast, 
 40 Ala. 184; Phillips v. Costley, Ibid. 486; Bogan v. Calhoun, 19 La. Ann. 
 472 ; Mayn v. Biggs, 3 Head 36 ; Cincinnati R. R. Co. v. Pearce, 28 Ind. 502 ; 
 Smith V. Price, 3*9 111. 28 ; Loivry v. Harris, 12 Minn. 255 ; Feusier v. SmitJi, 3 
 Nev. 120; Marshall v. Grid ley, 46 111. 247; Stange v. Wilson, 17 Mich. 342; 
 McMicken v. Comm., 8 P. F. Smith 213; Annapolis v. Harwood, 32 Md. 471 ; 
 .SeZ^ V. Friedland, 22 La. Ann. 381 ; Cook v. Shearman, 103 Mass. 21 ; Perkins 
 V. Young. 82 Mass. 389 : Coc/ie v. Bailey, 42 Miss. 81 ; Kirk v. Hartman, 13 P. 
 F. Smith 97; Robinson v. McNeill, 51 111. 225; Wimple v. Knopf, 15 Minn. 
 440 ; McGuire v. Stevens, 42 Miss. 724 ; Sawyer v. Forces, 44 Ga. 662 ; -Burs v. 
 5ifrs, 22 Mich. 42 ; Procifor v. G^/Zso?i, 49 N. II. 62 ; Kerr v. Kaykendall, 44 
 Miss. 137. A written instrument may be contradicted by the party making it, 
 when oifered in evidence in a suit to which a stranger to the instrument is a 
 party: Venable v. Thompson, 11 Ala. 147; Hughes v. Sandal, 25 Tex. 162. 
 Parol evidence is admissible to show that a conveyance absolute on its face was 
 in fact a mortgage : Gilchrist v. Cunningham, 8 Wend. 641 ; Hayworth v. 
 Worthington, 5 Blackf. 361 ; Swart v. Service, 21 Wend. 36 ; Brainerd v. Brai- 
 nerd, 15 Conn. 575; Bishop v. Bishop>, 14 Ala. 475; Babcock v. Wyman, 19 
 How. (U. S.) 289; Royarv. Walker, 1 Wis. 527; Hazard v. Loring, 10 Cush. 
 267 ; Collins v. Tillon, 26 Conn. 368 ; Couch v. Sutton, 1 Grant 114; Pattison v. 
 Z?ijrjie, Ibid. 301 ; Hopkins v. ITa^s, 27 Ga. 490 ; Home v. Puchett, 22 Tex. 201 ; 
 Pierce v. Robinson, 13 Cal. 116; /njzes v. Jones, 1 Head 105; Emerson v. 
 Atwater, 7 Mich. 12; Corbity. Smith, 7 Clarke 60; Howard v. Oc?e?Z, 1 Allen 
 85; PeopZe v. ^riom, 14 Cal. 428 ; Tillson v. Moulton, 23 111. 648 ; PZaiSo v. Roe, 
 14 Wis. 453 ; Roberts v. M'Mahan, 4 Green 34 ; Cunningham v. Hawkins, 27 
 Cal. 603 ; Preschbaker v. Feaman, 32 111. 475 ; Condit v. Tichenor, 4 Green 43 ; 
 Crane v. Buchanan, 29 Ind. 570; iTey v. McCleary, 25 Iowa 191; Phoenix v. 
 Gardner, 13 Minn. 430; Bingham v. Thompson, 4 Nev. 224; <?rot'e v. Rentch, 
 26 Md. 367 ; Jackson v. Lodge, 36 Cal. 28 ; (?reert v. PaZZ, 4 Bush 586 ; Carlyon 
 V. Lannan, 4 Nev. 156; Harjier v. Poss, 10 Allen 332; Newton v. Pay, Ibid. 
 505 ; Bragg v. Massie^s Adm., 38 Ala. 89; Mann's Ex. v. Falcon, 25 Tex. 271 ; 
 George v. Norris, 23 Ark. 121 ; Reigard v. McNeil, 38 111. 400 ; <?ay v. Hamil- 
 ton, 33 Cal. 686 ; Anthony v. Atkinson, 2 Sweeny 228. Contra at law : SaZc v. 
 Jewell, 7 Greenl. 435 ; 5b^eZ v. Lindell, 10 Mo. 483 ; Montag v. PocAr, Ibid. 506 ; 
 CooAr V. Eaton, 16 Barb. 439. A resulting trust may be shown by parol : JacA;- 
 so/i- V. ifiV/s, 13 Johns. 463 ; >S'co% v. Blanchard, 3 N. H. 170 ; Boyd v. McLean, 
 1 Johns. Ch. 582; Andrews v. Jones, 10 Ala. 460 ; Morrall v. Waterson, 7 Ivans. 
 199 ; Aln^ v. Ruckman, 21 N. J., Eq. 599.
 
 648 PROOFS. 
 
 pact of private parties, to be the appropriate memorial of tlie par- 
 ticular facts which it recites ; for by doing so. oral testimony would 
 be admitted in usurpation of a species of evidence decidedly superior 
 in deo;ree. 
 
 But parol evidence is admissible to defeat a written instrument, 
 on the ground of fraud, mistake, &c., or to apply it to its proper 
 
 subject-matter," or to explain the *meaning of foreign, local 
 r*6491 . . 
 
 •- '' ^ ov technical or family terms,** or to rehut presumption aris- 
 ing intrinsically. In these cases the parol evidence does not usurp 
 the place or arrogate the authority of written evidence, but either 
 shows that the instrument ought not to be allowed to operate at all, 
 or is essential in order to give to the instrument its logal effect. 
 
 The extent to which this principle operates, and the rules dedu- 
 cible from it, will be exhibited in the clearest point of view by refer- 
 ence to the different purposes for which parol testimony can be offered 
 in relation to written instruments. Parol evidence, in general, may 
 be offered for three purposes in relation to written evidence : First, 
 in OPPOSITION to written evidence, where it is offered with a view to 
 supersede the use of written evidence, and to supply its place, or to 
 contradict it, or to vary its effect, or Avholly to suhvei't such evidence, 
 by showing that it has no legal existence, or no legal operation in the 
 particular case ;* or secondly, it is offered in aid of written evidence, 
 in order either to establish a particular document, or to apply it to 
 its proper subject-matter, or to explain it, or to rebut some presump- 
 tion which affects it, or as secondary evidence, where the original is 
 unattainable ;^ or thirdly, it is used as original and independent 
 evidence to prove a particular fact, without regard to written evi- 
 dence of the fact, not being excluded by any rule of law.^ 
 
 I. In opposition to written evidence. — In the first place, parol evi- 
 dence is never admissible to supersede the use of written evidence, 
 where written proof is required by law. 
 
 Where the law, for reasons of policy, requires written evidence, 
 to admit oral testimony in its place would be to subvert the rule 
 itself. The same observation applies where the law prescribes a 
 certain form of written evidence ; *to allow a defect in the 
 L -J instrument to be supplied by oral evidence, would be pro 
 tanto, to dispense with the law. Hence, in general, where the law 
 requires a formal written document,*" if the document offered in evi- 
 
 " Infra, p. 671, et seq. " Infra, p. 679. 
 
 ^ Infra, p. 701, ei seq. " Infra, p. 671. 
 
 ' Supra, pp. 543, 568. b Jnfra, p. 716, et seq. 
 
 ^ See tit. Statute of Vravds, post, Vol. II.
 
 PAROL EVIDENCE TO SUPERSEDE, ETC. 650 
 
 dence bo defective, so that it cannot operate wirliout collateral aid, 
 tke defect cannot be supplied by oral testimony. Thus, if in a will 
 the name of the intended devisee or legatee be omitted, or a blank be 
 left for the description of the estate, or amount of the legacy, these 
 omissions cannot be supplied by oral testimony as to the real inten- 
 tion of the testator.' And, although different writings may, by in- 
 ternal inference, be connected together so as to constitute one entire 
 instrument within the Statute of Frauds, yet they cannot be con- 
 nected by mere oral testimony,'' neither can any defect in the Avriting 
 be supplied by oral evidence.^ 
 *In cases where a written document is not absolutely essen- 
 
 r o ii I 
 
 tial, in point of law, to give a legal operation to that which •- -• 
 is to be proved, as it is in cases under the Statutes of Frauds and of 
 Wills, yet if there be a written memorial constituted, parol evidence 
 cannot, in general, be substituted." The examination of a prisoner 
 
 ^ Baylis v. Attorney-General, B. & P. 298: 2 Atk. 240,. s. c. ; Woollam v. 
 Ilearn, 1 Ves. 211. Where the testatrix made a disposition in favor of Lady 
 
 , and the will contained other provisions in favor of Lady Hort, and she was 
 
 appointed a trustee in the will by the name of Dame Hort, Lord Thurlow held 
 that the blank could not be supplied by parol evidence : Hunt v. Hort, 3 Bro. 
 C. C. 311. In Abbott v. Massie, 3 Ves. 148, where a legacy was given to Mrs. 
 
 G , Lord Loughborough referred it to the master to ascertain who Mrs. G. 
 
 was, who was thei-e described by initial letter only. But see Sir D. Evans' 
 observations upon this case, in his edition of Pothier, vol. ii. p. 204. Where 
 a blank was left for the Christian name, parol evidence was admitted to show 
 who was intended : Price v. Page, 4 Ves. 680 ; but see Doe v. HiscocJcs, post^ 
 p. 681. 
 
 ^ Boydell v. Drummond, 11 East 142; Vol. IL, tit. Statute of Frauds. 
 
 ' Ibid. So an agreement, referring to such parts of another instrument as had 
 been read by one party to another, is not sufficient within the statute, because it 
 is imperfect without parol evidence ; but an instrument which is conformable to 
 the statute may by reference include the contents of another vrhich is not so : 
 Brodie v. St. Paul, 1 Ves. jun. 326; but see Clayton v. Lord Nugent, 13 M. & 
 W. 200. Although parol evidence be not admissible to aid an imperfect instru- 
 ment : Halliley v. Nicholson, 1 Price 404 ; yet where a question arises, as to 
 which an instrument is admissible but not decisive evidence, such parol evidence 
 is admissible for the purpose of proving an independent fact vrhich is explanatory 
 of it: B. V. Laindon, 8 T. R. 397 ; R. v. Billinghay, 5 Ad. & E. (31 E. C. L. R.) 
 676; R. y. Stoke-upon-Trent, 5 Q. B, (48 E. C. L. R.) 308 ; as, that there was 
 another consideration for the contract than the one stated in it : R. v. Nortliwing- 
 Jield, 1 B. & Ad. (20 E. C. L. R.) 912 ; or that the money paid on apprenticeship 
 was parish money, and consequently that no stamp was required : R. v. Llan- 
 gunnor, 2 B. & Ad. (22 E. C. L. R.) 616; R. v. Cheadle, 3 B. & Ad. (23 E. C. 
 L. R.) 833. 
 
 ™ Supra, tit. BesT Evidence. The appellants having proved that the pauper 
 occupied a tenement of £10 per annum, and paid rent and taxes for it, the re-
 
 651 PROOFS. 
 
 before a magistrate upon a charge of felony cannot be proved by 
 parol, unless it has been expressly shown that the examination was 
 not taken, as the statute requires, in writing." 
 
 The same principle applies where private parties have by mutual 
 compact constituted a written document the witness of their admis- 
 sions and intentions.^ 
 
 To admit oral evidence as a substitute for instruments, to which, 
 by reason of their superior authority and permanent qualities, an 
 exclusive authority is given by the parties, would be to substitute 
 the inferior for the superior degree of evidence; conjecture for fact, 
 and presumption for the highest degree of legal authority ; loose 
 recollection, and uncertainty of memory, for the most sure and faith- 
 ful memorials which human ingenuity can devise, or the law adopt — 
 to introduce a dangerous laxity and uncertainty as to all titles to 
 property, which, instead of depending on certain fixed and 
 "■^ unalterable memorials, would thus *be made to depend upon 
 the frail memories of witnesses, and be perpetually liable to be im- 
 peached by fraudulent and corrupt practices." 
 
 As oral evidence is inadmissible for the purpose of supplying an 
 
 spondents attempted to prove by parol that the letting was to the pauper and 
 two others ; on cross-examination it appeared that the letting was by a 
 written instrument ; held, that it was necessary to produce it : E. v. Baw- 
 den, 8 B. &. C. (15 E. C. L. R.) 708 ; Fenii v. Grit^fh, 6 Bing. (19 E. C. L. R.) 
 533. 
 
 '^ Vol. II., tit. Admission -. see 11 & 12 Vict. c. 42, s. 18. 
 
 » Hai/nes v. Hare, 1 H. B. 659 ; Buckler v. MiUercl, 2 Vent. 107 ; Clifton v. 
 Walmeshij, 5 T. R. 564 ; Tinney v. Tinney, 3 Atk. 8 ; 1 Wils. 34, s. c. ; Mease v. 
 Mease, Cowp. 47. It would be inconvenient, observes Lord Coke (see Countess 
 of Butland's case, 5 Rep. 26), that matters in writing, made by advice and on 
 consideration, and which finally imports 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 pur- 
 chasers and all others in such cases, if such rude averments against matter in 
 writing should be admitted. 
 
 ' When A. verbally accepts the written proposals of J?., the contract is not in 
 writing, and parol evidence is admissible as to its terms : Pacific Works v. Neic- 
 hall, 34 Conn. 67 ; Cobb v. Wallace, 5 Cald. 539. There is no presumption of 
 law that a drop-letter was deposited in the post-office on the day of the date of 
 its post-mark : Shelbunie Falls Bank v. Townslcy, 102 Mass. 177. As to proof 
 of sending letters by mail, see Phillips v. Scott, 43 Mo. 86. AVhether contracts 
 by telegram are to be considered as written contracts, see Beach v. Rarifan R. 
 R. Co., 37 N. Y. 457. The fact of a telegram transmitted does not prove the 
 presence of the sender at the place at the time: JIawley v. Whij)ple, 48 N. II. 
 487.
 
 PAROL EVIDENCE TO SUPERSEDE, ETC. 652 
 
 omission in an instrument where written evidence is required by 
 law : so it is inadmissible to give any eflFect to a written instrument 
 which is void in law for inconsistency, repugnancy, or ambiguity in 
 its terms ; for if a meaning could be assigned, by the aid of extrinsic 
 evidence, to tliat wliich was apparently destitute of meaning, or if 
 the same instrument could be made to operate in different ways, 
 according to the weight of oral evidence, it is plain that the effect 
 would depend, not upon the instrument, but upon the force of the 
 oral evidence, and thus the latter would virtually be substituted for 
 the former. 
 
 An important distinction has already been adverted to between 
 ambiguities which are apparent or patent on the face of an instru- 
 ment, and those which arise in the application of an instrument of 
 clear and definite meaning to a doubtful subject-matter. An ambiguity, 
 apparent on reading an instrument, is termed amhiguitas patens; 
 that which arises merely upon its application, amhiguitas latens. The 
 general rule of law is, that the latter species of ambiguity may be 
 removed by means of parol evidence, the maxim being, " Amhiguitas 
 verhorum latens verificatione suppletur : nam quod ex facto oritur 
 amhiguum verificatione facti tollitur.''^ On the other hand, it is a 
 settled rule that *such evidence is inadmissible to explain 
 an ambiguity apparent on the face of the instrument.'^ ' L ' J 
 
 By patent ambiguity must be understood an ambiguity inherent 
 in the words, and incapable of being dispelled either by any legal 
 rules of construction applied to the instrument itself, or by evidence 
 showing that terms in themselves unmeaning or unintelligible, are 
 incapable of receiving a known conventional meaning. The great 
 principle on which the rule is founded is, that the intention of parties 
 should be construed, not by vague evidence of their intentions, inde- 
 p)endently of the expressions which they have thought fit to use, but 
 by the expressions themselves. Now those expressions which are in- 
 capable of any legal construction and interpretation"" by the rules of 
 art, are either so because they are in themselves unintelligible, or 
 
 P See Lord Bacon's Elements of the Common Law, Regula, 23. 
 1 Amhiguitas patens is never holden by averments : Ibid. 
 
 ' It is a general rule that a patent ambiguity is always, if possible, to be re- 
 moved by construction and not by averment: Colpoys v. Colpoys, 1 Jac. 451. 
 
 ^ Except in matters of science and skill, and some other special cases resting 
 on peculiar circumstances, a witness cannot be allowed to testify to the meaning 
 of a word or term used in a contract: Mobile Marine Dock and Ins. Co. \. 
 McMillan, 31 Ala. 711.
 
 653 PROOFS. 
 
 because, being intelligible, they exhibit a plain and obvious un- 
 certainty,^ In the first instance, the case admits of two varieties : 
 the terms, though at first sight unintelligible, may yet be capable of 
 having a meaning annexed to them by extrinsic evidence, just as if 
 they were written in a foreign language/ as when mercantile terms" 
 are used, which amongst mercantile men bear a distinct and definite 
 meaning, although others do not comprehend them ;" *the 
 L -• term used may, on the other hand, be capable of no distinct 
 and definite interpretation. Now it is evident, that to give effect to 
 an instrument, the terms of which, though apparently ambiguous, are 
 yet capable of having a distinct and definite meaning annexed to 
 them, is no violation of the general principle, for in such a case effect 
 is given, not to any loose conjecture as to the intent and meaning of 
 the party, but to the expressed meaning; and that, on the other hand, 
 Avhere either the terms used are incapable of any certain or definite 
 meaning, or being in themselves intelligible exhibit a plain and obvi- 
 ous uncertainty, and are equally capable of different application, to 
 give an effect to them by extrinsic evidence as to the intention of the 
 party, would be to make the supposed intention operate independ- 
 ently of any definite expression of such intention. By patent ambi- 
 guity, therefore, must be understood an inherent ambiguity, which 
 cannot be removed either by the ordinary rules of legal construction, 
 
 " As, where an estate is left by will to one of the three sons of /. 8.^ without 
 specifying which. 
 
 'And see, where expression grammatically ambiguous may be explained, pos<, 
 p. 709. 
 
 " Robertson v. Jackson, 2 C. B. (52 E. C. L. R.) 412 ; Lewis v. Marshall, 7 M. 
 & G. (49 E. C. L. R.) 729 ; Drummond v. Attorney-General, 2 H. of L. C. 837 ; 
 Bold V. Rayner, 1 M. & W. 343 ; Spicer v. Cooper, 1 Q. B. (41 E. C. L. R.) 424 ; 
 Clayton v. Cregson, 5 A. & E.- (31 E. C. L. R.) 302; Simpson v. Margitson, 11 
 Q. B. (63 E. C. L. R.) 23; and see other cases, ^osi!, pp. 701, 705. 
 
 ^ Thus where a creditor agreed with others to watch a commission of bank- 
 rupt, supposed to be fraudulent, " and to contribute in the usual way," parol 
 evidence was admitted to show that by that expression it was meant that each 
 creditor should contribute in proportion to his claim against the bankrupt, with- 
 out mutual responsiljility : Taylor v. Cohen, 4 Bing. (13 E. C. L. R.) 53. So, in 
 the case of a will, where its characters are diflBcult to be deciphered, or its 
 language is unintelligible to an ordinary reader, the testimony of persons 
 skilled in deciphering writing, or who understand the language, is admissible 
 for the purpose of explanation : Goblet v. Beechey, 3 Sim. 24 ; Masters v. Masters, 
 1 P. Wms. 421 ; Norman v. Morrell, 4 Ves. 709. So, if the testator express him- 
 self in terms peculiar to a particular trade or calling: Smith v. Wilson, 3 B. & 
 Ad. (2!) E. C. L. R.) 728; Richardson v. Watson, 3 B. & Ad. (23 E. C. L. R.) 
 787 ; Attorney- General v. Plate Glass Company, 1 Anst. 39.
 
 PAROL EVIDENCE TO VARY, ETC. 654 
 
 or by the application of extrinsic and explanatory evidence, showing 
 that expressions primd facie unintelligible are yet capable of convey- 
 ing a certain and definite meanino;. 
 
 According to these principles, parol evidence is never admissible 
 to explain an ambiguity which is not raised by extrinsic facts. ^ 
 Thus, upon a devise to one of the sons of J. S., who has several, 
 evidence is not admissible to *show that one in particular r>|:/:^cr-i 
 was meant ;^ and the devise is void for uncertainty."^^ 
 
 y Doe V. Westlake, 4 B. & Aid. (6 E. C. L. R.) 57 ; Sanderson v. Piper ^ 5 Bin^. 
 N. C. (35 E. C. L. R.) 425. 
 
 ^ 2 Vern. 624, 625 ; Lord Cheijneifs case, 5 Co. 68, 5. v. ; Harris v. Bishop of 
 Lincoln, 2 P. Wms. 137, infra. In Harris v. Bishop of Lincoln, 2 P. Wms. 135, 
 where a man limited his estate by will to his own right heirs by his mother's 
 side, Lord Macclesfield held that he might mean either the heir of his mothers 
 father, or of his mother's mother, and admitted parol evidence to prove which he 
 meant. But see Doe v. Hiscocks, 5 M. & W. 363. 
 
 " Ibid. 
 
 ^ Latent ambiguity may be explained by parol evidence : Wilson v. Robertson, 
 7 J. J. Marsh. 78 ; Crawford v. Jarrett, 2 Leigh. 630 ; Peisch v. Dixon, 1 Mason 
 9 ; Bank of United States v. Dana, 6 Pet. 51 ; Waterman v. Johnson, 13 Pick. 
 261 ; Patrick v. Grant, 2 Shepl. 233; Doe v. Jackson, 1 S. & M. 494 ; Paysant 
 V. Ware, 1 Ala. 160; Brainerd v. Coicdry, 16 Cowen 270; Harris v. Z)oe, 4 
 Blackf. 369 ; Ward v. Espy, 6 Humph. 447 ; Hall v. Davis, 36 N. H. 569 ; Old 
 Colony Railroad Co. v. Evans, 6 Gray 25 ; Terpenning v. Skinner, 30 Barb. 
 373; Jackson V. Payne, 2 Mete. (Ky.) 567; Brown v. Brown, 4?> N. H. 17. 
 •Junior forms no part of a man's name, and where there are two persons of the 
 same name, evidence by parol is admissible to show which one was intended in 
 a given case : State v. Weare, 38 N. H. 314. A patent ambiguity cannot be ex- 
 plained : Webster v. Atkinson, 4 N. II. 21 ; Davis v. Davis, 8 Mo. 56 ; Richmond 
 Trading Co. v. Farquar, 8 Blackf. 89 ; Hyatt v. Pugsley, 23 Barb. 285 ; Panton 
 v. Teft, 22 111. 366; McNair v. Toles, 5 Minn. 435. The rule of Lord Bacon 
 that '' ambiguitas patens, is never holpen by averment'' is subject to qualifica- 
 tion, and parol evidence may be admissible to explain a written agreement : 
 Fish v. Bubbard, 21 Wend. 651. Where a word is abbreviated in a writing, 
 proof may be heard to show its meaning or what particular word it was in- 
 tended to abbreviate : Hite v. State, 9 Yerg. 357. For other cases as to patent 
 and latent ambiguity ; see Bell v. Woodward, 46 N. II. 315 ; Hardy v. Matthews, 
 38 Mo. 121 ; Myers v. Eddy, 47 Barb. 263 ; Best v. Hammond, 5 P. F. Smith 
 409; Kincaid v. Lowe, 1 Phill. (Eq.) 41 ; Crawford v. Brady, 35 Ga. 184; Wil- 
 liams V. Watcjs, 36 Ibid. 454; Shultze v. Baily, 40 Mo. 69; Master v. Freemar>, 
 17 Ohio St. 323 ; Wren v. Fargo, 2 Oreg. 19 ; Henderson v. Owen, 54 Me. 372 ; 
 Midlothian Co. v. Fenney, 18 Gratt. 304 ; Methoff v. Byrne, 20 La. Ann. 363 ; 
 Piper v. True, 36 Cal. 606; Guy v. Barnes, 29 Md. 103 ; Clark v. Powers, 45 
 111. 283 ; Donnelly v. Simonton, 13 Minn. 301 ; Campbell v. Johnson, 44 Mo. 247 ; 
 Suffern v. Butler, 21 N. J. (Eq.) 410 ; De Wolf v. Crandall, 1 Sweeney 566 - 
 Block v. Columbian Lis. Co., 42 N. Y. 393. Howlett v. Hewlett, 56 Barb. 467 
 39
 
 655 PROOFS. 
 
 As oral evidence is inadmissible, either as a substitute for a written 
 instrument required by law, or to give effect and operation to such 
 an instrument where it is defective, it follows a fortiori that it is 
 not admissible to contradict, or even to vary, any instrument to 
 which an exclusive operation is given by law, whether that exclu- 
 sive quality result from a positive rule of law,'' or from private com- 
 pact. 
 
 Where the terms of an agreement are reduced to writing, the 
 document itself, being constituted by the parties as the expositor of 
 their intentions, is the only instrument of evidence in respect of that 
 agreement, which the law will recognize so long as it exists, for the 
 purposes of evidence.*" If the parties have contracted by deed, 
 
 •» E. g., under the Statute of Frauds ; Marshall v. Lijnn, 6 M. & W. 109. 
 
 "Preston v. Merceau, 12 Bl. R. 1249; Hodges v. Drakeford^ 1 N.R. 270; 
 Pym V. Blackburn, 3 Ves. 34. It is a general rule, that where an agreement has 
 been reduced to writing, evidence of oral declarations, though made at the same 
 time, shall not be admitted to contradict or to alter it ; and see, per Lord Denman, 
 C. J., Goss V. Lord Nugent, 5 B. & Ad. (27 E. C. L. R.) G4. A written agree- 
 ment, however, where it is not under seal, maybe altered by the addition of new 
 terms by an oral agreement, which, in fact, constitutes a new agreement, incor- 
 porating the former one ; or, as has been seen, such an agreement may be wholly 
 discharged by parol, before any breach has occurred : Lord Milton v. Edgtvorth, 
 5 Bro. P. C. 313. In such cases it is obvious that the evidence is adduced, not 
 to vary the terms of an existing original agreement, but to show that it has been 
 superseded or discharged. And, in Bi/ivater v. Richardson. 1 Ad. & E. (28 E. 
 C. L. R.) 508, it was held that a written warranty of the soundness of a horse 
 might be limited to twenty-four hours, by rules painted on a board at the place 
 of sale ; and see Smart v. Hgde, 8 M. & W. 723 ; Jefreg v. Walton, 1 Stark. C. 
 (2 E. C. L. R.) 267. What took place in court previous to a rule being made is 
 inadmissible, the court can only look to the rule itself: Edivards v. Cooper, 3 
 C. & P. (14 E. C. L. R.) 277. The auctioneer's declarations, where there are 
 printed conditions which are signed, are inadmissible : Gunnis v. Erhart, 1 II. 
 B. 289 ; Powell v. Edmonds, 12 East 6. So, in Shelton v. Livius, 2 C. & J. 411, 
 where the auctioneer signed a memorandum referring to the particulars of sale. 
 But where the particulars are not signed, or are not referred to in the contract, 
 the auctioneer's declaration that some of the articles in the catalogue are differ- 
 ent from their description therein, is admissible : Eden v. Blake, 13 M. & W. 614, 
 post. In an action for work and labor, in building, it appeared that there was 
 an agreement in writing relating to the claim, and the plaintiff was not allowed 
 to proceed without producing it, nor even to recover for items as extras, as the 
 
 Arthur v. Roberts, 60 Il)id. 580. If there is any uncertainty as to the meaning 
 of the language used in a written contract parol evidence is admissible to explain 
 it: Lancey V. Plicemx Lis. Co., 56 Me. 562; Stoops v. Smith, 100 Mass. 63; 
 Durham v. Gill, 48 111. 151 ; Richmond R. R. Co. v. Snead, 19 Gratt. 354 ; Hal- 
 stead V. Meeker'' s Ex'rs, 3 Green 136.
 
 PAROL EVIDENCE TO VARY, ETC. 656 
 
 as the *obligation under seal imports greater deliberation r^/^r/>-i 
 and more solemnity than a mere written agreement which is 
 not under seal, no evidence, whether oral or written, *which 
 
 is not under seal, can be admitted to contradict or to 
 vary it.** 
 
 agreement was the proper evidence to show wliat the extras were ; Vincent v. 
 Cole, M. & M. (22 E. C. L. R.) 257 ; Jones v. Howell, 4 Dowl. 176 •, Bvxton v. 
 Cornish, 12 M. & W. 426. Where, in an action for use and occupation, it ap- 
 peared, upon cross-examination of the plaintiff 's witness, that there was an agree- 
 ment in writing, which could not be produced, not having been stam])ed, the 
 plaintiff was non-suited: Brewer v. Palmer, 3 Esp. 213; R. v. Rawdeii; Fenn v. 
 Griffith, supra, note (m). The rule (\fi&H not apply where a mere memorandum 
 has been made in writing preparatory to an agreement, but has not been signed 
 as such: Doe v. Cartwright, 3B. & Aid. (5 E. C. L. R.) 326; nor where a docu- 
 ment containing the terms of holding has been read over to a tenant, who does 
 not sign, but acquiesces and holds under them : Lord Bolton v. Tomlin, 5 A. it 
 E. (31 E. C. L. R.) 856 ; Trecichitt v. Lambert, 10 A. & E. (37 E. C. L. R.) 470 : 
 nor where the terms of a statute-hiring were supposed to have been put down at 
 the time by the chief constable's clerk, but the parties did not sign (or, as far as 
 appeared read) the writing: E. v. Inhabitants of Wrangle, 2 A. & E. (29 E. C. 
 L. R.) 514 ; nor where the terms of a verbal contract of sale are afterwards put 
 into writing by the vendor or his agent, as a memorandum of the transaction to 
 assist his recollection, but are not signed by the vendee: Allen v. Pink, 4 M. & 
 AV. 140 ; Dalison v. Stark, 4 Esp. 163 ; nor where the writing does not contain 
 all the terms of the agreement: Lockett v. Nicklin, 2 Ex. 93. 
 
 ^ Lainson v. Tremere, 1 A. & E. (28 E. C. L. R.) 792 ; West v. Blakeway, 9 D. 
 P. C. 846. A particular of sale, or agreement for the purchase, is not admissi- 
 ble to show what was conveyed by the deed of conveyance : Doe v. Webster, 12 
 A. & E. (40 E. C. L. R.) 442; Williams v. Morgan, 15 Q. B. (69 E. C. L. R.) 
 782. And where a subsequent parol agreement is inconsistent with a deed, it 
 cannot be set up against the deed : Leslie v. De la Torre, cited 12 East 583, post, 
 p. 661. Where a deed stated the purchase-money of land to have been paid, 
 evidence is inadmissible of an agreement that part should be satisfied by work 
 to be done by the purchaser, and that the money had not been paid : Baker v. 
 Deioey, 1 B. & C. (8 E. C. L. R.) 704; Baker v. Heard, 5 Ex. 959. Where 
 parties contract by deed, assumpsit will not lie ; for where a man resorts to a 
 higher security the law will not raise an assumpsit : Toussaint v. Martinnant, 2 
 T. R. 100 ; as, where a surety takes a bond from his principal : Ibid. So, where a 
 lessor assigns his lease by the words "grant and assign,"' but without any ex- 
 press covenant for quiet enjoyment, and the assignee is distrained upon for rent 
 due before the assignment, he cannot sue the assignor in assumpsit for money 
 paid because of the covenant contained in the word " grant :" Baber v. Harris, 
 9 A. & E. (39 E. C. L. R.) 533 ; but see 8 & 9 Vict. c.'lOO, s. 4 ; and a simple 
 contract debt is merged in a bond given for it: Price v. Moulton, 20 L. J., C. P. 
 102. So, a plaintiff cannot recover in iridebitatus assumpsit upon an executed 
 consideration, where the contract was by deed : Atfi/ v. Parish, 1 N. R. 104; see 
 Pardoe v. Price, 16 M. & W. 451. But an action of assiwipsit may be main- 
 tained upon an agreement subsequent to the making of a deed of charter-
 
 657 PROOFS. 
 
 Where the issue was on the plea of j^^ene admmistravit, evidence 
 that the defendant upon executing a bond of submission to arbitra- 
 tion, had agreed to pay what shoukl be awarded to be due, was re- 
 r*r"m j^cted, as being either *contradictorj of, or in addition to 
 the agreement in the bond.® So, oral evidence is not admis- 
 sible to show that a bond, conditioned for the payment of money to 
 the wife in case she survived, was intended in lieu of dower. ^ Nor 
 is such evidence admissible to show that a clause of redemption was 
 omitted in an annuity-deed, lest it should render the transaction 
 usurious.^ 
 
 Where A. granted an annuity for his own life to B., which was 
 secured by a bond and warrant of attorney, and judgment was 
 entered, the court would not, after the death of B., permit the 
 
 party, the parol contract not being inconsistent with the contract by deed : 
 White V. PcuMiis, 12 East 578 ; Morton v. Burn, 7 A. & E. (34 E. C. L. R. 19. 
 So, -where a mortgage-deed contained no covenant to pay the money lent, debt 
 for money lent will lie: Yates y. Aston, 4 Q. B. (45 E. C. L. R.) 182. Where 
 the obligor of a respondentia bond promised, by endorsement upon it, to pay 
 the amount to any assignee, it was held that an assignee might maintain in- 
 dehitatus assumpsit: Fenner v. Mears, 2 Bl. 1269; but this was doubted by 
 Lord Kenyon, in Johnson v. Collings, 1 East 104, and by Bayley, -J., in White 
 V. Parkins, 12 East 582; and is put by Blackstone, J., in his judgment, on the 
 ground of the whole of the transactions, one of which was an extension of 
 time. 
 
 * Pearson v. Henry, 5 T. R. 6 ; the evidence was rejected at the trial ; and 
 upon motion for a new trial the propriety of the rejection was not disputed : 1 
 Bro. C. C. 54, 93 ; and see the observations of Blackstone, J., in Preston v. Mer- 
 ceaii, Bl. 1250; and infra, 662. 
 
 ' See Mascal v. Mascal, 1 Yes. sen. 323 ; Finney v. Finney, 1 Wils. 34 ; infra, 
 666, note (z). 
 
 8 Lord Irnham v. Child, 1 Bro. C. C. 92 ; Lord Portmore v. Morris, 2 Bro. C. 
 C. 219 ; Hare v. Shearwood, 3 Bro. C. C. 168 ; 1 Ves., jun. 241. But where a 
 man and woman, being about to marry, conveyed their lands to trustees, in 
 trust, to dispose of the rents as the wife, without the consent of the husband, 
 should appoint; notwithstanding which the husband received the rents during 
 his life, and the wife after his death filed a bill in equity for an account, the 
 Court admitted parol evidence to prove that, before the settlement was made, 
 the husband and wife agreed that the premises should be in trust for them 
 during their joint lives, and that they were settled otherwise merely to protect 
 them from sequestration by Cromwell ; and on that ground relieved against a 
 covenant in the settlement, by which the trustees were bound to pay the rents 
 as the wife should appoint: Harvei/ v. Harvey, 2 Ch. C. 180 ; Fitz. 213. But 
 where articles were reduced to writing, and signed by the parties, and after- 
 wards drawn up at length, and executed, Reynolds, B., held that the articles 
 could not be restrained by the memorandum, there being no reference from the 
 articles to the memoratnliim : Lloyd v. Wynne, 5 G. 2 ; 1 Ford. 136.
 
 PAROL EVIDENCE TO VARY, ETC. 658 
 
 attorney of B. to prove a parol agreement that A. should be at 
 liberty to redeem the annuity on terms. *" 
 
 *So, in action on a bond conditioned for payment abso- r^prq-v 
 lutely, the defendant cannot plead an agreement that it 
 should operate merely as an indemnity.' Where a modern lease by 
 deed uses the term Michaelmas, evidence is inadmissible to show that 
 Old Michaelmas was meant.'' 
 
 In an action of trespass, where the defendant insists upon a release 
 executed by the plaintiff, in terras including the trespass in question, 
 the plaintiff cannot defeat the effect of the release by proof that the 
 arbitrators who awarded the release have not taken into consideration 
 the particular trespass.' 
 
 So, although it is an established rule that a party may aver 
 another consideration which is consistent with the consideration 
 expressed, c. g., as being in addition to it, or as included in its gene- 
 ral terms, no averment can be made contrary to that which is ex- 
 pressed in the deed." Where the conveyance is mentioned to be in 
 consideration of love and affection, as also for other considerations, 
 proof may be given of any other, for this is consistent with the terms 
 of the deed." But if one specific *consideration be alone 
 mentioned in the deed, it has been said that no proof can be '- ^ 
 
 given of any other, for this would be contrary to the deed ; for where 
 the deed says it is in consideration of such a particular thing, it im- 
 
 '' Hayiies v. Hare, 1 11. Bl. 659 ; and j^er Lord Thurlow, nothing can be added 
 to a written agreement, unless there be a clear subsequent independent agi'ee- 
 ment varying the former ; but not where it is matter passing at the same time 
 with the written agreement: Rich v. Jackson, 4 Bro. C. C. 519 ; Lord Portmore 
 Y.Morris, 2 Bro. C. C. 219. 
 
 * Mease v. Mease, Cowp. 47 •, Ridout v. Bristow et ux., 1 C. & J. 231. 
 
 " Doe V. Lea, 11 East 312 ; Stnith v. Walton, 8 Bing. (21 E. C. L. R.) 238 ; and 
 see Cadhy v. Martinez, 11 A. & E. (39 E. C. L. R.) 720. But in the case of a 
 parol demise, such evidence was admitted: 4 B. & Aid. (6 E. C. L. R.) 588. 
 Where a written agi'eement stipulates that goods are to be taken on hoard forth- 
 icHJi, it cannot be shown by parol that in two days was meant : Simpson v. Hen- 
 derson, M. & M. (22 E. C. L. R.) 300. 
 
 ' Shelling v. Farmer, Str. 646. 
 
 " Mildniay's case, 1 Co. Rep. 174; BedelVs case, 7 Co. Rep. 40; 2 Roll. Ab. 
 786. As, that the consideration was different from that expressed in the deed : 
 Hill V. Manchester and Salford Watericorks, 2 B. & Ad. (22 E. C. L. R.) 544; 
 Lainson v. Tremere, 1 A. & E. (28 E. C. L. R.) 792; Carpenter v. Buller, 8 M. 
 & W. 209 ; where it was held that a recital in an instrumant, even not under 
 seal, may have the same effect: Bowman v. Taylor, 2 A. & E. (29 E. C. L. R.) 
 278 ; Wiles v. Woodman, 5 Ex. 557. 
 
 ° Per Lord Ilardwicke, Peacock v. Monk, 1 Ves. 128; and see Villiers v. Bca- 
 mont, 2 Dyer 146 a ; Vernon's case, 4 Rep. 3 ; 7 D. & L. 141.
 
 G60 PROOFS. 
 
 ports the whole consideration, and negatives any other." Tlie case 
 where no consideration is expressed in the deed, is, according to Lord 
 Hardwicke, a middle case; and he hehl that proof of a valuable con- 
 sideration in such a case was admissible.'' But in general, as will be 
 seen, evidence as to the real consideration is in all cases admissible 
 with a view to prove fraud,'' or to rebut the presumption of fraud. "^ 
 
 Upon the same principles, evidence is inadmissible of a parol agree- 
 ment prior to or contemporary with the written instrument, and which 
 varies its terms ; as to show that a note made payable on a day certain 
 was to be payable upon a contingency only,' or upon some other 
 day,' or not until the death of the maker." Where a policy was on an 
 ^ , , ^^ adventure from * Archangel to Leghorn, the defendant was not 
 ^ -^ allowed to prove an agreement previous to the signing of the 
 policy, that the adventure should begin from the Downs only.'' Where 
 a ship was chartered to wait for convoy at Portsmouth, it was held 
 that evidence could not be received of an agreement to substitute 
 Corunna for Portsmouth.^ 
 
 ° Ibid. ; Gi'een v. Weston, Say. 209 ; Stratton v. Rastall, 2 T. R. 366 ; but see 
 Gale V. Williamson. 8 M. & W. 405 ; Clifford v. Turrell, 1 Y. & C, N. C. 138. 
 
 P Peacock v. Monk, 1 Ves. 128. 
 
 ^ Infra, p. 672. 
 
 ' Gale V. Williamson, 8 M. & W. 405. 
 
 ^ nawson V. Walker, 1 Stark. C. (2 E. C. L. R.) 361 ; Foster v. JoUi/, 1 C, M. 
 & R. 703 ; Adams v. Wordleij, 1 M. & W. 374 ; Campbell v. Hodgson, Gow (5 
 E. C. L. R.) lA- Brown v. Langleij, 4 M. & G. (43 E. C. L. R.) 466 ; see Webb 
 V. Salmon, 7 D. & L. 324; Moseley v. Hanford, 10 B. & C. (21 E. C. L. R.) 729. 
 It is not, it seems, competent to a party who appears on the face of a promissory 
 note to be a principal, to show that he is merely a surety : Price v. Edmonds, 
 10 B. & C. (21 E. C. L. R.) 578 ; but see Fentum v. Pocock, 5 Taunt. (1 E. C. 
 L. R.) 192; Fox V. Frith, 10 M. & W. 131 ; Healaj v. Sior;/, 3 Ex. 3. But 
 althou_o;h a consideration be alleged in the bill or note, a party may show it to 
 have failed, or to have been illegal, or that the consideration was really a dif- 
 ferent one: Solli/ V. Einde, 2 C. & M. 516 ; Abbott v. Hendricks, 1 M. & G. (39 
 E. C. L. R.) 791. 
 
 ' Free\. Hawkins, 8 Taunt. (4 E. C. L. R.) 92. Or that it should be renewed: 
 Hoare v. Graham, 3 Camp. 57 ; and ^os^, p. 666. 
 
 " Woodbridf/e v. Spooner, 3 B. & Aid. (5 E. C. L. R.) 233 ; unless indeed by 
 way of proving want of consideration : Soil;/ v. Hinde, 2 C. & M. 516 ; see tit. 
 Bills OF Exchange, Vol. II. So parol evidence is unavailing to show that a 
 transfer of a ship, which was absolute on the bill of sale, was intended as a 
 security only : Robinson v. M'' Donnell, 2 B, & Aid. 134, 
 
 ' Kaiues v. Kidghtly, Skin. 54; Uhde v. Walters, 3 Camp. 16; Weston y. 
 KmcH, 1 Taunt. 115. Note, Kaines v. Knightly is cited in Bates v. Grabham, 2 
 Sulk. 444, but nii.sHtated. 
 
 y Leslie v. J)e la Tcrre, cited 12 East 583. Note, — that the charter-party 
 was under seal.
 
 PAROL EVIDENCE TO VARY, ETC. 661 
 
 Where a contract is entered into for the sale of goods, and a bill 
 of sale afterwards executed, the bill of sale is the only evidence of 
 the contract which can be received, and parol evidence of the agree- 
 ment cannot be received, although the written instrument of sale be 
 inadmissible for want of a stamp." 
 
 In general, where a contract has been reduced into writing, nothing 
 which is not found in the writing can be considered as part of the 
 contract.** 
 
 *The same rule applies if such parol agreement add to the 
 terms expressed. Thus, where the agreement was, that A.^ •- ^ 
 for certain considerations, should have the produce of Boreham's 
 Meadow, it was held that he could not prove by parol that he was to 
 have both the soil and produce of Millcroft and Boreham's Meadow ;° 
 and in the case of Preston v. Mareeau,'^ the landlord, in an action 
 for use and occupation, under a Avritten agreement for rent at =£26 
 per annum, Avas not allowed to show, in addition^ by parol evidence, 
 that the tenant had also agreed to pay the ground-rent. Mr. J. 
 Blackstone is said in that case to have observed, that although the 
 court could neither alter the rent, nor the terms which were expressed 
 in the agreement, yet that with respect to collateral matters it might 
 be different ; the plaintiff might show who was to put the house into 
 repair, or the like, concerning which nothing was said. The question, 
 how far collateral matter may be proved by parol, will be considered 
 
 ^ Lano V. Neule, 2 Stark. C. (3 E. C. L. R.) 105. The previous contract there 
 was for a ship, forty tons of iron kintlage, &c. The bill of sale was of a ship, 
 together with all stores, &c., in the usual form, and silent as to kintlage ; and 
 held, that the vendee could not recover for non-delivery of the kintlage. 
 
 * Per Lord Kenyon, in RuUestoii v. Hibbert, 3 T. R. 413 ; and see Drakeford 
 v. Hodges, 1 N. R. 270, where it was held, that if a parol warranty or agree- 
 ment to assign be reduced to writing, and the assignment be afterwards legally 
 executed, the warranty cannot be proved by parol. 
 
 " P. C. in Kain v. Old, 2 B. & C. (9 E. C. L. R.) 634. Note— that the first 
 agreement was in writing, but void for not reciting the certificate of the ship's 
 registry ; and see Mei/er v. Everth, 4 Camp. 22 ; Gardiner- v. Gray, 4 Camp. 
 144; Puivell v. Edmonds, 12 East 6 ; Hope v. Atkins, 1 Price 143; Pickering 
 V. Dowson, 4 Taunt. 779 ; and Countess of Rutland' s case, supra ; and tit. War- 
 ranty. 
 
 " Meres v. Ansel, 3 Wils. 275 ; and see Hope v. Atkins, 1 Price 143. 
 
 ^ Preston v. Marceau, 2 Bl. 1249. So, in Rich v. Jackson, 4 Bro. C. C. 515, 
 where an agreement specified the rent and the term, but was silent as to taxes, 
 the Court refused to receive parol evidence on the part of the lessor, that previ- 
 ous to the drawing up of the memorandum it had been agreed and understood 
 by the parties that the rent was to be paid clear of all taxes.
 
 662 PROOFS. 
 
 hereafter." At present it may be observed, that where an agreement 
 specifies only the rent and the term, but is silent as to repairs, it 
 is obvious that such an agreement may be as completely varied by 
 proof of an additional stipulation that the landlord should lay out a 
 specific sum in alterations, as by evidence that the rent shall be di- 
 minished, without any stipulation as to repairs. Cases in which the 
 additional terms constitute in fact a new agreement, incorporating 
 the former written terms, ^ or continuing the former *con- 
 L ' J tract,^ or amount to a substantive collateral agreement ;'' those 
 also, where certain terms are engrafted upon an agreement ; which is 
 silent on thepoint, by some unknown custom, or general understanding;' 
 and lastly, those where the instrument offered as evidence to prove a 
 collateral fact, has, in the particular instance, no exclusive operation,*^ 
 fall, as will be seen, under a diff'erent consideration. 
 
 At present, assuming the particular instrument to be that which 
 the parties have agreed upon as the evidence of their intentions in 
 respect of the particular transaction, the only question is, whether 
 the parol evidence, which is adduced to superadd something to the 
 written agreement, does not vary that agreement; if it does, it is in- 
 admissible. 
 
 Where the conditions of sale 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 
 
 ^ Infra, pp. 710, 716, et seq. 
 
 ' Where one written instrument refers to another, from which it requires ex- 
 planation, with sufficient certainty, the latter is virtually incorporated with the 
 former and may be said to give effect to it. But it is a general rule of law, that 
 an instrument properly attested, in order to incorporate another instrument not 
 attested, must describe it so as to be a manifestation of the paper meant to be 
 incorporated, in such a way that the Court can be under no mistake : pei- Lord 
 Eldon, C, Smart v. Priijean, 6 Ves. 505; and see Clayton v. Lord Nugent, 13 
 M. & W. 200. 
 
 8 Supra, p. 657 ; Littler v. Holland, 3 T. R. 590 ; Marshall v. Lynn, 6 M. & 
 W. 109, infra, p. 725 ; and see Warren v. Stagg, cited 3 T. R. 591 ; Cvf\. Penn, 
 1 M. & S. 21 ; Lord Milton v. Edgworth, 5 Bro. P. C. 313. 
 
 '' Granville v. Duchess of Beaufort, 1 P. Wms. 114 ; 2 Vern. 648. A person, 
 to whom money was due from the vendor of goods sold )>y auction, agreed with 
 the owner, before the auction, that the price of anything she might buy should 
 be set against the debt, and she became the purchaser of goods and was entered 
 as such by the auctioneer ; she was held not bound by the conditions of sale, one 
 of which was that the purchaser should pay a part of the price at the time of 
 sale, iind the rest on delivery: Bartlett v. Purnell, 4 A. & E. (31 E. C. L. R.) 
 792. 
 
 ' infra, p. 710. '' Infra, p. 716, et seq.
 
 PAROL EVIDENCE TO VARY, ETC. 663 
 
 purchase according to the conditions, was not permitted to prove 
 that the auctioneer had, at the sale, warranted the timber to amount 
 to a certain weight ; *for if that representation induced Iiim 
 to become the purchaser, he ought to have had it reduced to ^ J 
 writing at the time.' Lord Ellenborough, in that case, observed, 
 that if such evidence wei"e admissible, in what instance might not a 
 party, by parol testimony, superadd any term to a written agree- 
 ment ? which would be setting aside all written contracts, and ren- 
 dering them of no effect. In such cases it is to be presumed that 
 the parties, in expressing their intention, have expressed the whole 
 of it, subject to those incidents and consequences which the law an- 
 nexes to the terms which they have used. Hence, where a written 
 agreement for the sale of goods is silent as to the time of delivery, 
 in which case the law implies a contract to deliver them within a 
 reasonable time, to be judged of according to the circumstances, 
 evidence is inadmissible of a contemporaneous oral contract by the 
 purchaser to take them away immediately." 
 
 Where A. agreed to take B. into partnership as an attorney, no 
 time being mentioned, it was held that the partnership commenced 
 from the time of the agreetoent, and that evidence was inadmissible 
 to show that the agreement was not to take effect until B., who was 
 not then an attorney, should be admitted." 
 
 *One who executes an instrument in his own name cannot ^ , ^ 
 defeat an action by showing that he did so merely as agent ■- -• 
 for another." Nor, if a person is known to have been agent for the 
 
 ' Poivell V. Edmonds, 12 East 6 ; and see Buckmaster v. Harrop, 13 Ves. 471 ; 
 Shelton V. Livius, 2 C. & J. 411 ; Higginson v. Clowes, 15 Ves. 516 ; Jenlcinsoti 
 V. Pepi/s, cited 6 Ves. 330 ; Rich v. Jackson, 4 Bro, C. C. 515 ; Gunnis v. Erhart, 
 
 1 H. Bl. 289. But where, previous to the sale of a leasehold estate by auction, 
 the purchaser promised the vendor to indemnify him against the covenants 
 entered into by the lessee, a specific performance was decreed, although the 
 terms of the sale vrere silent as to such indemnity : Pember v. Mathers, 1 Bro. 
 P. C. 54. 
 
 "" Greaves \. Ashlin, 3 Camp. 426 ; Halliley\. Nicholson, 1 Price 404. Where 
 goods are ordered by letter without any mention of time of payment, and they 
 are sent with an invoice, the letter and invoice not amounting to a contract, 
 parol evidence may be given that they were sold on credit: Lockett v. Nicklin, 
 
 2 Ex. 93. 
 
 ° Williams v. Jones, 5 B. & C. (11 E. C. L. R.) 109; and see similar instances 
 where reasonable time, or some other term, was not expressed, but implied by 
 law: Greaves v. Ashlin, 3 Camp. 426; Ford v. Yates, 2 M. & G. (40 E. C. L. 
 R.) 549. 
 
 ° Magee v. Atkinson, 2 M. & W. 440. Whether his principal were or were
 
 665 PROOFS. 
 
 defendant, and as such has always used his own name to bind the 
 defendant, can the defendant show that a contract made in that form, 
 by such person, was made on his own account and after he had 
 ceased to be agent, that fact not having been previously known to 
 the plaintiif.P Nor can a principal, whose agent contracts in writing 
 in his own name, and therein describes himsfelf as owner of the thing 
 as to which he contracts, show that the agent was merely such, and 
 sue upon that contract as principal.'' But in an action on a Avritten 
 contract between the plaintiff and a third party, evidence on the 
 part of the plaintiff is admissible to show that the contract was in 
 fact made by the third party, not on his own account but as the agent 
 of the defendant."^ 
 
 Where no date, or an impossible one, is inserted in the deed, date 
 is construed to mean delivery ; but where a date is given, and an act 
 is to be done at a certain time from the date, the party bound cannot 
 allege a different time of delivery, with a view to alter the time of 
 performance.^ 
 
 *Parol evidence is also inadmissible for the purpose of 
 L -' altering the legal operation of an instrument, by evidence of 
 an intention to an effect which is not expressed in the instrument.* ^ 
 
 not known at the time of the contract: Jones v. Littledale, G A. & E. (33 E. C. 
 L. R.) 486 ; Higgins v. Senior, 8 M. & W. 834. 
 
 p Trueman v. Loder, 11 A. & E. (39 E. C. L. R.) 589. 
 
 1 Humble v. Hunter, 12 Q. B. (64 E. C. L. R.) 310. But the mere fact of a 
 principal having in the contract described himself as agent, but not having 
 named any principal, will not prevent his suing on the contract: Schmalz \. 
 Avery, 20 L. J., Q. B. 228. 
 
 ' Wilson v. Hart, 7 Taunt. (2 E. C. L. R.) 295. Or that a third party was a 
 dormant partner with the defendant who signed the contract, although at the 
 time of contracting the plaintiiF did not know that fact : Beckham v. Drake, 9 
 M. & W. 79 ; confirmed in Cam. Scacc. 11 M. & W. 315. 
 
 « Styles v. Wardle, 4 B. & C. (10 E. C. L. R.) 908 ; Co. Litt.46, b.; Com. Dig. 
 Fait, b. 3; Ojiey v. Hicks, Cro. Jac. 264; and infra, tit. Deed; Armit Y.Breame, 
 2 Lord Raym. 1076. But where a lease, dated Lady-day 1783, purported to 
 commence on Lady-day last past, evidence was admitted to show that the lease 
 was in fact executed after that date, and consequently that the term commenced 
 Lady-day 1783, not 1782; Steele v. Mart, 4 B. & C. (10 E. C. L. R.) 272; see 
 JJoe v. Ulph, 13 Q. B. (66 E. C. L. R.) 204. 
 
 ' In equity, however, it seems that parol evidence is admissible to show that 
 the testator intended that 8[)ccific legacies should be paid out of particular 
 funds : Clijf' v. Gibbons, Lord Raym. 1324. But not to show that a testator 
 intended to exempt his personal estate from debts : see Reeves v. Newenham, 2 
 Ridg. 21, 35, 44. 
 
 * Evidence of conversation leading to a contract is inadmissible : Gilpins v.
 
 PAROL EVIDENCE TO VARY, ETC. 666 
 
 Thus the defendant cannot be admitted to prove that at the time 
 of making a promissory note, it was agreed, that when the note became 
 due payment should not be demanded, but that the note shouhl be 
 renewed." So, also, parol evidence is inadmissible to show that a 
 bond, purporting to be absolute, was intended merely as an indemnity, 
 and that the plaintiff has nbt been damnified ;" or to show that the 
 directions of a will were intended to operate in satisfaction of a 
 bond '/ or that a bond given by a husband before marriage, condi- 
 tional to secure ,£400 to the wife, in case she survived the husband, 
 
 was given in lieu of dower.^ Where a man conveyed his ^ ^^„^ 
 
 . . . r*6671 
 
 *estate to certain uses, reserving to himself the power of ^ ^ 
 
 changing or revoking them, and afterwards conveyed it to trustees, 
 in trust to pay his debts, and then in trust to reconvey, it was held 
 that proof of a declaration by one of the trustees under the latter 
 deed, that the party did not intend to revoke the former by the latter, 
 was inadmissible.* 
 
 Parol evidence of the intention of the testator is in no case admis- 
 sible to contradict the express terms of a will.^ Where a legacy was 
 
 ° Hoare v. Graham, 3 Camp. 57 ; Webb v. Salmon, 7 D. & L. 324, in Cam. 
 Scacc. ; Hogg v. Siiaith, 1 Taunt. 347 ; see tit. Bills of Exchange. 
 
 ^ Mease v. Mease, Cowp. 47. Or, that where a bond was conditioned for pay- 
 ment of the rent of certain premises recited in the condition to have been de- 
 mised bj indenture at a specified rent, the rent mentioned in the indenture 
 was less than in the condition, and had been paid : Lainson v. Tremere, 1 A. & 
 E. (28 E. C. L. R.) 797. See ante, p. 6G0, note [u). 
 
 y Jeacock v. Falkener, 1 ]?ro. C. C. 295. 
 
 ^ Finney v. Finnerj, 1 Wils. 84. But where a man, Avho had ngreed to settle 
 lOOZ. a year on his intended wife, finding himself ill, made his will, and after- 
 wards left her lOOZ. a year, and recovering, married her, Clarke, B., held, that 
 evidence was admissible to show that he intended her one of the annuities only : 
 Mascal v. Mascal, 1 Ves. sen. 323 ; but see 7 Will. IV. and 1 A^ict. c. 26, and 
 tit. Wills. 
 
 '^ By Reynolds. B., and by the Chancellor and Master of the Rolls : Fitzgerald 
 V. Fauamberge, Fitz. 207. 
 
 ^ A testator, havino; copyhold estates in North C. .and South C, devises to his 
 wife all his wines, &c., in addition to the settlement made her of his copyhold 
 estates ; to his niece M. the rents and profits of his new enclosed freehold cow- 
 
 Consequa, Peters' C. C. 86. All anterior and contemporaneous stipulations and 
 representations are merged in the writing and cannot be given in evidence : 
 Gooch v. Conner, 8 Mo. 391; Parkhtirst v. Corilandt, 1 Johns. Ch. 274; Crosier 
 v. Acer, 7 Paige 137 ; Ellmaker v. Franklin Fire Ins. Co., 5 Barr 183 ; Bedford 
 V. Flowers, 11 Humph. 242. Parol evidence is inadmissible to explain the 
 intentions of a party to a deed : Child v. Wells, 13 Pick. 121 ; Pai/sant v. Ware, 
 1 Ala. 160 ; Brockett v. Bartholomew, 6 Mete. 396.
 
 667 PROOFS. 
 
 given to A. B., and in the case of his death to his wife, and the wife 
 j-^ after his death received *the legacy, and the question at law 
 
 *- -^ was, whether she received the legacy in her own right, or as 
 her husband's representative, it was held that evidence was inadmis- 
 sible to prove that the testator when he was in extremis had declared 
 his intention to be, that the husband should have the interest only 
 during the life of the wife, and that if she survived him she should 
 have the principal." Where a f<ither by his will made his three 
 brothers, who were Presbyterians, together with a clergyman, guar- 
 dians of his children in general terms, King, Chancellor, on a bill 
 filed by the three against the clergyman, to have the children delivered 
 up to them, rejected parol evidence of directions alleged to have been 
 given by the testator, that the children should be educated as Presby- 
 terians ; and he said, that as that was not expressed in the will, parol 
 evidence was no more admissible than in the case of a devise of land.* 
 Oral declarations of the testator cannot be received for the purpose 
 of explaining his intention,® even where it is apparently ambiguous 
 on the face of the will. Where the testator, after mentioning his 
 
 pasture close in North C. during the life of his wife ; and after the decease of 
 his wife, to two nephews, his furniture, &c., and all his copyhold estates in 
 North 0. and South C. It was held, that as there was no ambiguity on the face 
 of the will, or in the application of it, the testator having copyhold estates in 
 North C. and South C, which answered the description, extrinsic evidence was 
 not admissible to show that the description in the settlement included a freehold 
 close, which was mistakenly enumerated there as copyhold ; and that by all his 
 copyhold estates in North C. and South C. this freehold passed, although the 
 settlement was referred to in the will ; and that other documents not referred 
 to were inadmissible for that purpose: Doe clem. Brown v. Brown, 11 East 441. 
 A testator gave one of his debtors certain meissuages, and after other legacies 
 and devises gave all the rest of his estate, not thereby devised, to his executors, 
 or such of them as should act, and made that debtor and /. S. his executors. 
 They both acted, and J. S. filed a bill against the debtor for a proportion of his 
 debt : the debtor offered parol evidence to show that the testator meant that the 
 debt should be extinguished, and that he gave the attorney who drew the will 
 instructions to release it ; but that the attorney, and a counsel whose opinion 
 was taken, were of opinion that the debt would be released by implication. 
 But Lord Talbot said that the cases went no further than to let in parol evi- 
 dence to rebut an equity or resulting trust ; but as the residuary clause directed 
 the property not before disposed of by the will to be divided between the execu- 
 tors, and as the debt in question had not been previously disposed of by the 
 will, tlie evidence contradicted the express words of the will : Brown v. Selwyn, 
 Ca. temp. Talbot 240 ; IJac. Abr., Wills, D. 
 
 ° Low field v. Stoneham, Str. 1261. 
 
 " Storke V. Slorke, 3 P. Wms. f)! ; but see 2 Ves. 589. 
 
 • 2 Vern. G24 ; 9 CI. & F. 566.
 
 PAROL EVIDENCE TO VARY, ETC. 668 
 
 wife and niece in his will, afterwards gave a particular estate to her 
 for life, the Lord Chancellor refused to receive parol evidence to show 
 which was meant/ 
 
 So, such extrinsic evidence is inadmissible to alter the legal con- 
 struction of words, or to eifect a legal presumption ^arising p^p^Q-. 
 from the construction.^ Where a legacy was given to A. B., L -" 
 who was dead at the time, it was held, that evidence was not admis- 
 sible to show the intent of the testator that the legacy should be 
 transmissible.'' Where a devise was to the son of the devisor, and 
 the heirs of his body, on the condition that he, they, or any of them, 
 should not aliene, discontinue, &c. ; parol evidence was held to be 
 inadmissible to show the intention of the devisor, that the condition 
 should extend to the son and his heirs.' So, it was held to be admis- 
 sible to show that the testator did not intend to pass the reversion 
 and remainder in fee of certain settled lands, by a devise of all lands, 
 tenements, and hereditaments out of settlement.*" An estate was 
 devised in trust to receive the profits for three years, and if the 
 heiress of the devisor should marry Lord Gr. within that time, in 
 trust for her for life, with remainder to her children in strict settle- 
 ment ; and if the marriage should not happen, in trust for Lord F. ; 
 the marriage did not take place ; and it was held that parol evidence 
 was inadmissible of a declaration by the testator that Lord (r.'s re- 
 fusal should not disinherit his heir-at-law.' 
 
 Upon a question of legal construction upon the terms of a will, 
 whether the devisor gave an estate for life, or an estate in fee. Lord 
 Holt was of opinion that the intention of the devisor must be col- 
 lected, not from collateral matters, but from the will itself; but the 
 other judges were against him, and their opinion was confirmed in the 
 Exchequer Chamber.™ And in some other instances the r*«7A-| 
 *courts have taken into consideration the state and circum- 
 stances of the family, in order to enable them the better to construe 
 
 f Castleton v. Turner, 3 Atk. 257 ; Hampshire v. Peirce, 2 Ves. sen. 216. 
 
 E Per Lord Thurlow, 2 Bro. C. C. 521. 
 
 " Maybank v. Brooks, 1 Bro. C. C. 84. 
 
 ' Cheijnei/s case, 5 Co. 68 ; 2 Bro. C. C. 521. 
 
 " Strode v. Falkland, 2 Vern. 621 ; but it is stated 1 y Salkeld that the decree 
 was reversed ; according to Vernon, it was compromised. 
 
 ' Bertie v. Falkland, Salk. 231 ; 2 Vern. 333. 
 
 "" Cole V. Raiolinson, Salk. 234 ; see Doe v. Fyldes, Cowp. 833 ; Doe v. Dring, 
 2 M. & S. 455 ; Bootle v. Blundell, 1 Mer. 193 ; Goodtitle dem. Richardson v. 
 Edmonds, 7 T. R. 640; Standen v. Standen, 2 Ves. jun. 593; Vin. Ab., tit. 
 Devise, Y. 2, pi. 10; Pepper d: Ux. v. Winyeve, Bac. Ab., tit. Wills, II.
 
 670 PROOFS. 
 
 the testator's real intention as to tlie personal estate."* Where, how- 
 ever, extrinsic evidence is allowed to operate so far as to give t^o the 
 terms of a will a different construction from that which the terms 
 abstractedly imply, the rule has often been considered to be carried 
 further than is warranted by principle or analogy." Where evidence 
 r*fi7n ^^^ offered of the value *of an estate charged with the 
 sums of money payable to the sisters of the devisee, as an 
 argument in favor of a particular construction, the Court of King's 
 Bench held that it was nugatory and inadmissible as a matter of 
 proof, although it might have been of great weight had the court 
 been called upon to make a will for the testator. ^ In the case of 
 
 ° See the cases cited in the preceding note ; and see Baldwin v. Karver, 
 Cowp. 312, -where Lord Mansfield observed that all cases upon the construction 
 of ■wills depend upon the particular penning of the wills themselves^ and the 
 state of the families to vphich they relate ; and, in the case of Jones v. Morgan, 
 cited in Li/tfon v. Li/tton, 4 Bro. C. C. 441, the same learned judge observed, 
 that to construe a will, the intent is to be taken from the whole will together, 
 applied to the subject matter to which the will relates. Sir D. Evans, 2 Poth. 
 212, remarks, also, that Lord Loughborough, in quoting the opinion of Lord 
 Mansfield, took notice of different cases in which certain words were held to 
 apply to a failure of issue at a certain period, although taking the words strictly, 
 and construing them without considering the circumstances, would have imported 
 a general failure of issue : vide Lyttoa v. Lytton, 4 Bro. C. C. 44L In the case 
 of Masters v. Masters, 1 P. W. 420, the testator, after bequeathing a legacy to 
 two particular hospitals in Canterbury, by his codicil bequeathed another sum 
 " to all and evert/ the hospitals.''^ As the testator had by his will taken notice of 
 two hospitals in Canterbury, and as it appeared in evidence that he lived there, 
 it was held that the intention sufficiently appeared to apply the latter bequest 
 to the hospitals in Canterbury. And see the distinction taken by Lord Thurlow 
 in Jeacock v. Falkener, 1 Bro. C. C. 296 ; see Doe dem. Gord v. Needs, 2 M. & 
 AV. 129. 
 
 ° See Lord Hardwicke's observations in Blinkho7-nev. Feast, 2 Ves. 28; Strode 
 V. Russell, 2 Vern. 624 ; Castleton v. Turner, 3 Atk. 258 ; Petit v. Smith, 1 P. 
 Wms. 9; Broion v. Lanyley, 2 Barn. 118 ; Brown v. Selwin, C. temp. Talbot, 
 240 ; Jeacock v. Falkener, 1 Bro. C. C. 296. The doctrine once prevailed that a 
 court might receive evidence which was inadmissible before a jury ; that, how- 
 ever, has since been denied : per Buller, J., 2 IL B. 524. 
 
 P Doe V. Fyldes, Cowp. 833. In Gates d. Wiyfall v. Brydon, 3 Burr. 1895, 
 Lord Mansfield went into an inquiry as to value, in order to found an argument 
 upon the result, as to the construction of a will, and in order to show that 
 property of such small value could not be intended to be the subject of particu- 
 lar limitations; but the learned judge seems to have been of a different opinion 
 in the c.ise of Doe v. Fyldes, just cited, where he concurred with the other 
 judges; and in Goodtitle d. Richardson v. Edmonds, 7 T. R. 640, Lord Kenyon 
 intimated that the case of Gates d. Wig/all v. Brydon had not been satisfactory 
 to the profession, and that he believed that Lord Mnnsfield had afterwards
 
 PAROL EVIDENCE ADMISSIBLE TO DISPROVE. 671 
 
 Doe d. Oxenden, Sir A. CJdcester,'^ it was observed by Sir V. Gibbs, 
 that courts of law had been jealous of extrinsic evidence for the 
 purpose of explaining the intention of a testator ; and he knew of 
 one case only in which it is permitted, that is, Avhere an ambiguity is 
 introduced by extrinsic circumstances. 
 
 The objection does not apply where evidence is offered, not for 
 the purpose of contradict inc/ or varying the effect of a written instru- 
 ment of admitted authority, but where on the contrary it is offered 
 in order to disprove the legal existence, or rebut the operation of the 
 instrument. To do this, is not to substitute mere oral testimony 
 for written evidence, the weaker for the stronger, but to show that 
 the written ouo;ht to have no operation whatsoever ; an 
 *object which must usually be accomplished by oral evi- ■- ~^ 
 dence. 
 
 As a written instrument in general derives its authenticity from 
 the aid of external evidence, it may be defeated in like manner. 
 Thus, it may be impeached by intrinsic evidence, on the ground of 
 fraud, even in the case of a record.'' So, also, in the case of a pri- 
 vate agreement, oral evidence is admissible to prove a fraudulent 
 omission.' Where there was an agreement for a lease, evidence was 
 admitted of a parol agreement that the rent should be clear of all 
 taxes, but that the plaintiff reduced the agreement to writing with- 
 out mentioning that point, and that the defendant could not read.t 
 In order to impeach a will, and to show that it had been fraudulently 
 submitted to a testator for his signature, parol evidence was admitted, 
 that at the time of signing the will he asked whether the contents 
 were the same with those of a former will, and that he was answered 
 in the affirmative." So, it may be shown that one will was substituted 
 for anotlier." So, in general, it may be shown that fraud and impo- 
 
 doubted whether he had proceeded upon substantial grounds. In the case of 
 Bengough v. Walker, 15 Ves. 514, the Master of the Rolls said, " You cannot 
 refer to extrinsic evidence to construe a will, but you may to show with reference 
 to what a will was made." 
 
 1 4 Dow. 65 ; infra, p. 693. 
 
 «■ Bincr. N. P. 172: Paztou v. Pnphanu 9 East 421 ; Due v. Allen, 8 T. R. 147 ; 
 R. v. Mattingleg, 2 T. R. 12 ; Wright v. Crookes, 1 Sc, X. S. 685. But such 
 evidence is not admissible to defeat a record by showing a rasure, &c. ; as that a 
 rasure was made in a precept since it was issued : Dickson v. Fisher, Burr. 2267 ; 
 and see tits. Fraud and Judgment. 
 
 " Lord Irnham v. Child, 1 Bro. C. C. 92; 3 Atk. 2,^S, post. 
 
 ' Joynes v. Statham, 3 Atk. 388. Note — the agreement was executory. 
 
 " Doe d. Small v. Allen, 8 T. R. 147. ^ Ibid.
 
 672 PROOFS. 
 
 sition were practised upon a party to an instrument, by a fraudulent 
 omission, or misrepresentation of the contents, especially if the party 
 were illiterate/^ 
 
 *And it is a general principle of law, that where a statute 
 
 r*6731 . 
 
 ■- -^ makes a deed void, as for a charitable or superstitious use, 
 
 or where it is void at common law, as being contra bonos mores, the 
 
 proof of invalidity may be collected not only from the instrument 
 
 itself, but from circumstances which, though they do not appear on 
 
 the face of the deed, may be taken into consideration/ Again, in 
 
 the case of all covenants to stand seized to uses, a party is at liberty 
 
 to prove other considerations than those mentioned in the deed.* In 
 
 the case of Filmer v. Grott,^ where the ct»nsiderations mentioned in 
 
 the deed were ,£10,000, 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 consideration, the 
 
 estates being worth =£30,000. On appeal to the House of Lords, it 
 
 was held that the commissioners had done right ; and the jury finding 
 
 that natural love and affection formed no part of the consideration, 
 
 the deed was afterwards set aside by the Lord Chancellor. 
 
 But, although a party, in order to prove fraud, may adduce extrinsic 
 
 evidence to show^ the inadequacy of the consideration when compared 
 
 y 3 Atk. 388, supra. As where a mortf^agee draws the mortgage-deed and 
 omits the covenant for redemption. So, where there were to be two mortgage- 
 deeds, an absolute one and a defeasance, it was held that the mortgagor might 
 prove an agreement to execute the latter : Ibid. 
 
 ^ Per Holroyd, J., in Doe d. Wellardy. Hawiliorn, 2 B. & Aid. 96. And there- 
 fore a lease to trustees may be. avoided by a subsequent declaration of trust by 
 some of the trustees : 2 B. & Aid. 96 ; and see Doe v. Munro, 12 M. & W. 845 ; 
 and as to superstitious uses, Cary v. Abbott, 7 Ves. 490. 
 
 ' Per Lord Kenyon, R. v. Scammonden, 3 T. R. 475. 
 
 " Cited by Lord Kenyon, 3 T. R. 474 ; 4 Bro. P. C. 230. 
 
 ' In cases of fraud : Stark, v. Littlepage, 4 Rand. 368 ; Paysant v. Ware, 1 Ala. 
 160; Bottomly V. United States, 1 Story 135; Prentiss v. Buss, 4 Shep. 30 ; 
 Sanford v. Handy, 23 Wend. 260; Buck v. Appleton, 2 Shep. 284; Hol- 
 brook V. Burt, 22 Pick. 546 ; Bank v. Whinjield, 24 Wend. 419 ; Singery v. At- 
 torney-General, 2 Har. & Johns. 487 ; Stannard v. McCarty, 1 Morris 124 ; Jar- 
 vis v. Palmer, 1 1 Paige 650 ; Renshaw v. Gans, 7 Barr 117 ; Lowi-y v. McMillan, 
 8 Barr 157 ; Miller v. Gotten, 5 Ga. 341 ; Lunday v. Thomas, 26 Ga. 537 ; Pierce 
 V. Wilson, 34 Ala. 596 ; Bowman v. Torr, 3 Clarke 571 ; Williams v. Donaldson, 
 8 Ibid. 109 ; Ojjicer v. Howe, 32 Iowa 142 ; Monroe v. Bchrens, 17 P. F. Smith 
 459; Coonv. Atwell,A^ N. II. 510; Plant v. Gondii, 'I'l Ark. 454 ; George \. 
 Norris, 23 Ibid. 121 ; Wiltenberger v. Morrison, 39 Mo. 71 ; Westbrooks v. Jef- 
 fers, 33 Tex. 86.
 
 PAROL EVIDENCE TO CORRECT MISTAKE, ETC. 673 
 
 with the value of the estate, the party who claims under the deed 
 cannot, it has been said, be admitted to show a consideration in sup- 
 port of it, different from that which is expressed. Upon a bill to set 
 aside a conveyance of an estate of inheritance worth X40 a year, 
 conveyed to the defendant by an infirm old man of the ago of seventy- 
 two, in consideration of an annuity of ,£20, it was held, that the de- 
 fendant was not at liberty to show blood and kindred to 
 have been the real consideration of the conveyance, *and to •- -• 
 prove that the grantor had often declared that he had rather that his 
 kinsman (one of the defendants) should have the estate for this an- 
 nuity than any other person for a valuable consideration." 
 
 In cases also where the public have an interest in the real nature 
 of a transaction between two parties, they are not bound by the 
 representation made in the private agreement, but may impeach it 
 pro tanto, as to any misrepresentation ; for this misrepresentation 
 may properly be considered as a species of fraud upon the public. 
 Thus, although the private deed of conveyance of an estate expressed 
 <£28 to be the purchase-money, it was held, that as between two con- 
 tending parishes, it was competent to one of them to show that the 
 real consideration was X30, in order to establish a settlement under 
 the statute.*^ And, in general, extrinsic evidence is admissible for 
 the purpose of avoiding a particular instrument, on the ground of a 
 fraud attempted to be practised on the revenue ; as by proof that 
 under the particular circumstances the instrument ought to have been, 
 differently stamped.** 
 
 Parol evidence is also, in general, admissible for the purpose of 
 showing that an instrument is void on the ground of some illegality 
 committed by the parties ; as that it is void for usury, or 
 because it is given to secure a gaming *debt, or founded upon ^ J 
 
 " Clarkson v. Hanway and others^ 2 P. W. 203. But this case seems to be of 
 doubtful authority, and it is quite clear that the party claiming under a deed is 
 not precluded from showino; an additional or further consideration not contra- 
 dictory to that expressed, in order to support it : Clifford v. Turrell, 1 Y. & C, N. 
 C. 138 ; or in order to rebut fraud: Gale v. Williamson, 8 M. & W. 405 ; Pott v. 
 Todhunter, 2 Col. C. C. 76. 
 
 ** B. V. Scammonden, 3 T. R. 473 ; see also R. v. Laindon, 8 T. R. 379 ; R. v. 
 Northwingfield, 1 B. & Ad. (20 E. C. L. R.) 912; and it would seem that third 
 persons, if strangers, might do this : R. v. Cheadle, 3 B. & Ad. (23 E. C. L. R.) ; 
 and see R. v. Mattinglei/, 2 T. R. 12 ; Reg. v. Stoke, 5 Q. B (48 E. C. L. R.) 303. 
 
 « Snaith v. Miiigaij, 1 M. & S. 87 ; Steadman v. Duhamel, 1 C. B. (50 E. C. L. 
 R.) 888 ; and on the other hand to show that it did not require a stamp : R. v. 
 Llangunnor, 2 B. & Ad. (22 E. C. L. R.) 616; and post, tit. Stamp. 
 40
 
 675 PROOFS. 
 
 some illefral consideration/ And where a statute avoids an instru- 
 ment which does not fully state the consideration on which it is 
 founded, extrinsic evidence is admissible to show that the directions 
 of the statute have not been complied with. 
 
 Oral evidence is also admissible for the purpose of correcting a 
 mistake f a practice more frequent in courts of equity than of com- 
 mon law.*"' In such cases, especially where recourse is had to equity 
 for relief, the extrinsic evidence is not offered to contradict a valid 
 existing instrument ; but to show, that from accident or negligence 
 the instrument in question has never been constituted the actual de- 
 pository of the intention and meaning of the parties. Thus, where 
 parties covenanted to convey an estate in trust, to raise £30,000 to 
 pay off debts and encumbrances, with remainder over, parol evidence 
 was admitted to show that it was the concurrent intention of all the 
 parties to raise that sum in addition to the sum of £24,000, with 
 which the estate was encumbered.' 
 
 '' An agreement, varying from the condition of the bond, may be pleaded, to 
 show that the bond was founded on an illegal agreement : Greville v. Atkins, 9 
 
 B. &C. (17 E. C. L. R.) 462 ; Paxton v. Popham, 9 East 421. So that it has been 
 obtained by duress ; see the notes to Collins v. Blantern, 1 Smith's L. C. 153 ; 
 2 Wils. 341 ; and tit. Bills, pos^. 
 
 « A contract, apparently usurious, may be shown to be legal by evidence of a 
 clerical error: Anon , 1 Freem. 253 ; Boothe v. Cooke, Ibid. 264. 
 
 ** The usual, and certainly the safer course, in case of mistake, is to apply to 
 equity for relief, in the first instance : but parties are not obliged in every case 
 to do so : see R. v. Wickham, 2 A. & E. (29 E. C. L. R.) 519. But if a mistake 
 has been made in a material part, recourse must be had to equity to reform the 
 instrument; a court of law can only gii^e effect to it as it stands: see Saunderson 
 v. Piper, 5 Bing. N. C. (35 E. C. L. R.) 425 ; Hitchin v. Groom, 5 C. B. (.57 E. 
 
 C. L. R.) 515. 
 
 ' Shellmrne v. Inchiqnin, 1 Bro. C. C. 338. The evidence, however, proved to 
 be insufficient, and no more than £30,000 was ordered to be raised. The decree 
 
 ' That mistake cannot be shown at law : Fitzhugh v. Runyon, 8 Johns. 375 ; 
 Bradley v. Anderson, 5 Vt. 152 ; Morton v. Chandler, 7 Greenl. 44; Lincoln v. 
 Avery, 1 Fairf. 418 ; Coleman v. Crumpler, 2 Dev. 508. But in equity or where 
 equitable principles are permitted in courts of law it is otherwise: Christ v. 
 Diffenhach, 1 S. & R. 464; Goioer v. Sterner, 2 Whart. 75; Hunt v. Rousmanier, 
 8 Wheat. 174 ; McMahon v. Spangler, 4 Rand. 51 ; Keisselbrock v. Livingston, 4 
 Johns. Ch. 144 ; Coger v. McGee, 2 Bibb 321 ; Ward v. Allen, 28 Ga. 74 ; Hamil- 
 ton v. Congers, Ibid. 276 ; Stockham v. Stockham, 32 Md. 196 ; Buck v. Tilley, 
 49 Barb. 599; Richardso)i v. Boynton, 12 Allen 138 ; Baltimore Steamboat Co. 
 V. Brown, 4 P. F. Smith 77 ; Fisher v. Deihert's Adm., Ibid. 460. In the 
 absence of fraud or mistake of fact parol evidence is not admissible to contra- 
 dict or vary the terms of a written contract, though made under mistake of 
 law : Potter v. Sewall, 54 Me. 142.
 
 PAROL EVIDENCE TO CORRECT MISTAKE, ETC. 676 
 
 *In cases also of maniao;e settlements, where mistakes ^ ^_^, 
 
 r 6761 
 have been committed, and, in consequence, the deeds have *- -• 
 
 varied from the instructions of the parties, they have been rectified 
 
 by a court of equity.'' The same has also been done in instances of 
 
 mercantile and other contracts.^ Where two persotis intrust a third 
 
 to draw up minutes of their intention, a mistake of his may, it has 
 
 been held, be relieved against." Cases of this nature are nearly of 
 
 kin to those of fraud ; it is, in point of conscience and equity, an 
 
 actual fraud to claim an undue benefit and advantage from a mere 
 
 mistake, contrary to the real intention of contracting parties. ^\LJiere 
 
 a party at the time of executing a deed pointed out a mistake, which 
 
 the other agreed to rectify, but afterwards refused to do so, pai-ol 
 
 evidence of the fact was held to be admissible in equity, on the 
 
 ground of fraud." 
 
 Such evidence ought not, for obvious reasons, to be allowed to 
 prevail, unless it amount to the strongest possible proof. ° The most 
 satisfactory evidence for this purpose consists of the written materials 
 and instructions *which were intended by the parties to be r*p77-| 
 the basis and ground-plan for the construction of the intended 
 instrument.^ 
 
 Where a mistake is alleged to have been made in a settlement by 
 
 was afiBrmed in the House of Lords : see also Baker v. Paine, 1 Ves. 457 ; Towers 
 V. Moore, 2 Vern. 98 ; and further in what cases equity will relieve : London <fc 
 Birmingham Railway Company v. Winter, Cr. & P. 57 ; Okill v. Whittaker, 2 
 Phil. 338. 
 
 '' Barstow v. Kilvington, 9 Ves. 59 ; Randal v. Randal, 2 P. W. 464 ; Marquis 
 of Exeter v. Marchioness of Exeter, 3 M. & Cr. 321 ; Walsh v. Trevannion, 16 
 Sim. 178. 
 
 ' See Henkle v. Royal Exchange Assurance Comp., 1 Ves. 317; Thomas v. 
 Frazier, 3 Ves. jun. 399 ; 10 Ves. 227 ; and see Motteaux v. London Assurance 
 Company, 1 Atk. 545 ; Baker v. Paine, 1 Ves. 456. 
 
 "> 1 Bro. C. C. 350. 
 
 " Per Lord Thurlow, 1 Bro. C. C. 54 ; Pitcairn v. Ogbourne, 2 Ves. 375. 
 
 " Per Lord Hardwicke, in 1 Ves. 318, supra. In that case, upon a bill to 
 rectify a mistake in a policy of insurance, the principal evidence consisting in 
 the deposition of an agent of the company, who had transacted business for 
 them, the court held that it was sufficiently certain to be relied on. The Lord 
 Chancellor observed, that the Court of Chancery had jurisdiction to relieve 
 against plain mistakes in contracts in writing, as well as against fraud ; so that 
 if reduced into writing, contrary to the intention of the parties, that, on proper 
 proof, would be rectified. Lord Eldon, has observed on the looseness of this 
 expression, as it left it to every judge to say, ''whether the proof was that 
 proper 2yroof wYnch. ought to satisfy him." 
 
 P Baker v. Paine, 1 Ves. 457.
 
 677 PROOFS. 
 
 an attorney's clerk, the court would not allow it to be corrected by 
 the mere testimony of the attorney himself, who had received oral 
 instructions for the preparation of the deeds ; nothing appearing in 
 the handwriting of the parties to show that a mistake had been com- 
 mitted.*! 
 
 In general, where a written document is given in evidence as con- 
 taining an admission by the adversary, parol evidence is admissible 
 to explain it, or to show that it originated in mistake.' 
 
 The principle on which evidence is received, to explain mistakes in 
 matters of contract between private persons, does not extend to the 
 admission of evidence to show that a mistake or alteration has been 
 made in records ; those memorials having been made and kept under 
 the immediate authority of the law, and by officers in whom confi- 
 r*r7S1 ^6^^CG 's fo^ ^^^^ purpose reposed, it is to be concluded that they 
 have been correctly made, and faithfully preserved.* *But 
 such evidence is admissible to show a mistake in a memorial not 
 of record ; as a court-roll.' 
 
 Such extrinsic evidence is also admissible for the purpose of prov- 
 ing fraud. Thus, although a buyer of goods under a written contract 
 cannot show a previous parol contract for the purpose of varying the 
 terms of the written one, he may show by extrinsic evidence that the 
 
 ■i Hardwood v. Wallace, cited 2 Ves. 195. Hence, it seems that the court, in 
 such cases, will not rely on mere parol evidence alone •, and see the dictum of 
 Sir Thomas Clarke to that effect, 1 Dickenson 295 ; and see Shergold v. Boone, 
 13 Ves. 373, 376. 
 
 ■■ Holsten v. Jumpson, 4 Esp. C. 139 ; and see per Buller, J., in Haheath v. Hal- 
 dimand, 1 T. R. 182 ; and see CoUett v. Lord Keith, 4 Esp. 212 ; Graves v. Key, 
 3 B. & Ad. (23 E. C. L. R.) 318. 
 
 ° Reed v. Jackson, 1 East 855. In Lord Carnarvon v. Villebois, 13 M. W. 213, 
 a judgment in a quo warranto, charging a usurpation of free warren over the 
 lands of tenants, as well as over the demesne lands of a manor, upon which, 
 the defendant having set forth a title to the franchise over the demesne lands 
 only, the Attorney-General had confessed the judgment with respect to the title 
 as set forth by the tenant, was held evidence of the title to both as set forth in 
 the information, and the court considered the omission in the plea and judg- 
 ment as accidental, and a mistake. Amendments in records are frequently 
 made by the courts themselves, on proper application. 
 
 * Burgess's case, 1 Leon. 289 ; Kite v. Queinton, 4 Co. 25 ; Towers v. Moore, 2 
 Vern. 98. In Ifall v. Wiygett, 2 Vern. 547, an entry in the steward's book, and 
 parol proof by the foreman of the jury of copyholders, was admitted to show that 
 a feme covert had surrendered the whole of her copyhold estate, although the 
 surrender on the roll, and admission, were ])ut of a moiety; and see Towers v. 
 Moore, 2 Vern. 98; Walker v. TFa/Zier, Barnard 215; Scriven on Copyholds, 
 passim.
 
 PAROL EVIDENCE — LATENT AMBIGUITY. 678 
 
 seller, by some fraud, prevented him from discovering a defect which 
 he knew to exist." 
 
 It is obvious that the general exclusive principle is also inappli- 
 cable in all cases where the party admits that the deed or other 
 instrument did once legally exist as such, but offers extrinsic proof 
 to show that it has been discharged by some subsequent instrument 
 or agreement," or by the receiving payment or satisfaction.^^ 
 
 II. I71 aid of written evidence. — In the next place, extrinsic parol 
 evidence is admissible generally to give effect to a written instrument, 
 by establishing its authenticity, applging it to its proper subject- 
 matter, and also, as ancillary to the latter object, for the purpose, in 
 some instances of explaining expressions capable of conveying a 
 definite meaning by virtue of that explanation, and of annexing 
 customary incidents; and also, in other instances, *for the r:):f?i-Q-i 
 purpose of removing presumptions arising from extrinsic 
 facts which would otherwise obstruct such application. 
 
 Where an instrument is not proved by mere production, it must 
 necessarily derive its credit and authenticity from extrinsic evidence. 
 
 In the next place, it is always necessarily a matter of extrinsic 
 evidence to apply the terms of an instrument to a particular subject- 
 matter, the existence of which is also matter of proof.'' A difiBculty 
 in this case occurs, where, although the terms of the instrument be 
 
 " Kain v. Old, 2 B. & C. (9 E. C. L. R.) 631 ; citing Pickering v. Dawson, 4 
 Taunt. 779, where it was so laid down by Gibbs, C. J. ; and as to fraud, see 
 Cornjoot v. Fowke, 6 M. & AV. 358 ; and the numerous cases as to bills, tit. 
 Bills of Exchange. 
 
 ^ Supra, tit. Assumpsit, Deed ; and supra, p. 655, nbte (c). 
 
 y See tit. Accord and Satisfaction. 
 
 '^ In R. V. Wooddale, 6 Q. B. (51 E. C. L. R.) 549 ; where an apprentice was 
 described in a deed by one name and executed it by another, extrinsic evidence 
 was held admissible to show that the person meant was the person who executed 
 the indenture : and see Williams v. Bryant, 5 M. & W. 447. 
 
 ^ An agreement to extend the time of payment provided for in a written agree- 
 ment, as a promissory note, may be proved by parol evidence : Peck v. Beckwith, 
 10 Ohio (N. S.) 497. Waiver of a condition in a deed may be so proved : Leath 
 V. Bullard, 8 Gray 545. So that a written agreement was not to be binding 
 until other signatures had been obtained, is admissible : Butler v. Smith, 35 
 Miss. 457. Whenever the time of the execution of any writing, however ob- 
 scure, becomes material, it may be proved by parol, not only to supply an 
 omission but in opposition to a date expressed : Draper v. Snow, 20 N. Y. 331 ; 
 Partridge v. Swazey, 46 Me. 414. The time for the performance of a sealed as 
 well as a simple contract may be enlarged by parol: Branch v. Wilson, 12 Fla. 
 543.
 
 G79 PROOFS. 
 
 sufficiently definite and distinct, the objects to which it is to be ap- 
 plied are not equally so, and where it is doubtful whether the descrip- 
 tion applies at all to the particular object pointed out by the evidence, 
 whether it be not equally applicable to several distinct objects. 
 
 The general rule has already been adverted to, that a latent am- 
 biguity (that is, an ambiguity arising from extrinsic evidence) may be 
 removed by extrinsic evidence. 
 
 The illustration most usually given of the operation of this rule is 
 that of a description in a will of a devisee, or of an estate, where it 
 turns out that there are two persons, or two estates of the same name 
 and description. Where the testatrix devised an estate to her cousin 
 Jolm Cluer, and there were two persons, father and son, of that 
 name, evidence was admitted to show that Jolm Cluer, the son, was 
 ^ meant.* So in Lord Cheney's case,^ it was held, that *if a 
 L -^ testator, having two sons of the same name of baptism, and 
 supposing the elder, who had long been absent, to be dead, devise 
 his land to his son generally, the younger son may be permitted to 
 prove the intent of the father to devise to him, and to show that, at 
 the time of the devise, he thought that the other son was dead, or 
 that at the time of making his will, he named his son, (Tohn the 
 younger, and the writer left out the addition. According to Lord 
 Coke, no inconvenience can result if an averment be taken in such 
 a case, for he who sees the will by which the land is devised cannot 
 be deceived by any secret averment ; when he sees the devise to the 
 testator's son generally, he ought, at his peril, to inquire 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, then the devise is void for 
 uncertainty.'' So, if a person grant his manor of S. generally, and 
 it appear that he has two manors of S. (south S. and north S.), parol 
 evidence is admissible to show which was intended.*^ Where the tes- 
 tator gave £100 to the four children of Mrs. Bamjield, and it ap- 
 peared that she had four children by 3Ir. Bamjield, her latter hus- 
 band, and two children by 3Ir. P. her first husband, a declaration 
 by the testator that he had provided for the four children of Mrs. B., 
 
 * Jones V. Neivsam, 1 Bl. GO. Yet if there be Hither and son of the same name, 
 it is usually to be presumed that the father is meant by the name used simply, 
 and without the addition of " the younger." 
 
 '' Lord Chcnei/s case, 5 Co. Rep. 68, b. ; so also Careless v. Careless, 1 Meri- 
 vale 384. 
 
 « .0 Hep. .08. 
 
 •^ 13ac. El. Rule 23 ; see Broom's Maxims, cap. vi.
 
 PAROL EVIDENCE — LATENT AMBIGUITY. 680 
 
 but would give nothing to P.'s children, was admitted in evidence to 
 show who were meant by the description of the four children in the 
 will." 
 
 Where a testator devised a house to John Gord, the son 
 *of George Gord^ another to George Gord, the son of George ^ -• 
 Gord, and a third to George Gord, the son of Gord, evidence of his 
 declarations was admitted to show that he intended that the third 
 house should go to George Gord, the son of George GorJJ The 
 Court of Exchequer, in giving judgment said, ''If upon the face of 
 the devise it had been uncertain whether the devisor had selected a 
 particular object of his bounty, no evidence would have been admis- 
 sible to prove that he intended a gift to a certain individual. Such 
 would have been a case of ambiguitas pate7i8 within the meaning of 
 Lord Bacon's rule, which ambiguity could not be hoi pen by aver- 
 ment." "But here, on the face of the devise, no such doubt arises. 
 There is no blank before the name of Gord, the father, which might 
 have occasioned a doubt whether the devisor had finally fixed on any 
 certain person in his mind ; the devisor has clearly selected a par- 
 ticular individual as the devisee. Let us then consider what would 
 have been the case, if there had been no mention in the will of any 
 other George Gord, the son of a Gord: on that supposition there is 
 no doubt upon the authorities, but that evidence of the devisor's 
 intention as proved by his declarations would have been admissible. 
 Upon the proof of extrinsic facts, which is always allowed in order 
 to enable the court to place itself in the situation of the devisor, and 
 to construe his will, it would have appeared that there were at the 
 date of the will two persons, to each of whom the description would 
 be equally applicable. This clearly resembles the case put by Lord 
 Bacon of a latent ambiguity, where one grants his manor of S'. to tT. 
 T. and his heirs, and the truth is that he has the manors of south 8. 
 and north /SV In Doe dem. Hiscocks v. Hiseoeks,^ Lord Abinger, 
 in delivering the judgment of the Court of Exchequer, explained 
 the law in these words: " The object in all cases is to discover the 
 *intention of the testator. The first and most obvious mode r*f«of)-i 
 of doing this is to read his will as he has written it, and col- 
 
 ® Ilampsliire v. Peirce, 2 Ves. 216. The correctness of this case, so far as ad- 
 mitting the testator's declaration, is doubted in Doe v. Hiscocks, infra, p. 681 ; 
 and note that in the same will, the testator having subsequently given £300 to 
 the children of Mrs. B., Sir John Strange, the Master of the Rolls, held that the 
 declaration was inadmissible as to the £300, being contradictory of the will. 
 
 ' Doe dem. Gord v. Needs, 2 M. & W. 129. 
 
 e 5 M. & W. 363.
 
 682 PROOFS. 
 
 lect his intention from his words. Bnt as his words refer to facts and 
 circumstances respecting his property and his family, and others 
 whom he names and describes in his will, it is evident that the mean- 
 ing and the application of his words cannot be ascertained without 
 knowledge of all those facts and circumstances. To understand the 
 meaning of any writer, we must first be apprised of the persons and 
 circumstances that are the subjects of his allusions or statements ; and 
 if these are not fully disclosed in his work, we must look for illustra- 
 tion to the history of the time in which he Avrote, and to the Avorks 
 of contemporaneous authors. All the facts and circumstances there- 
 fore respecting persons and property to which the will relates are 
 undoubtedly legitimate, and often necessary evidence to enable us to 
 understand the meaning and application of the words. Again, the 
 testator may have habitually called certain persons or things by pecu- 
 liar names, by which they were not commonly known. If these names 
 should occur in his will, they could only be explained and construed 
 by the aid of evidence to show the sense in which he used them, in 
 like manner as if his will were written in cipher or in a foreign lan- 
 guage. The habits of the testator in these particulars must be re- 
 ceivable as evidence to explain the meaning of his will. But there is 
 another mode of obtaining the intention of the testator, which is by 
 evidence of his declarations, of the instructions given for his will, and 
 other circumstances of the like nature, which are not adduced for 
 explaining the meaning of the words of the will, but either to supply 
 some deficiency, or remove some obscurity, or to give some effect to 
 expressions that are unmeaning or ambiguous. 
 
 " Now, there is but one case in which it appears to us that this 
 sort of evidence of intention can properly be admitted, and that is 
 r*fi8m ^^^^^ ^^6 meaning of the testator's words is *neither ambig- 
 uous nor obscure, and where the devise is on the face of it 
 perfect and intelligible, but from some of the circumstances admitted 
 in proof, an ambiguity arises as to which of the two or more things, 
 or which of the two or more persons, each answering the words in 
 the will, the testator intended to express. Thus, if a testator devises 
 his manor of S. to A. B., and has two manors of north *S'. and south 
 &'., it being clear he means to devise one only, whereas both are 
 equally described by the words he has used, in that case there is what 
 Lord Bacon calls an equivocation, i. c, the words equally apply to 
 either manor, and evidence of previous intention may be received to 
 solve this latent ambiguity, for the intention shows what he meant to 
 do, and when you know that, you immediately perceive that he has
 
 PAROL EVIDENCE — LATENT AMBIGUITY. 683 
 
 done it by the general words he has used, which in their ordinary 
 sense may properly bear that construction. It appears to us, that in 
 all other cases parol evidence of what was the testator's intention 
 ought to be excluded upon this plain ground, that his will ought to 
 be made in writing; and if his intention cannot be made to appear 
 by the writing, explained by circumstances, there is no will." 
 
 The reasoning of this case was fully acted upon by the Court of 
 Queen's Bench in Doe dem. Allen v. Allen,^ where the devise was to 
 Jolm A. the grandson of T. A., charged with the payment of a legacy 
 to each and every of the brothers and sisters of the aforesaid John. 
 At the making of the will there were two persons, named John A., 
 grandsons of T. A., one of whom had several brothers and sisters, 
 and the other, one only of each. The court, after determining that 
 the mention of the brothers and sisters was no part of the descrip- 
 tion of the person, decided that the devisor's declarations were admis- 
 sible to show that John A., who had but one brother and one sister, 
 was meant. And the same principle *has been again applied r*po4-| 
 by the Court of Common Pleas in a case' where the testator 
 devised to his dear wife Caroline. He had gone through the cere- 
 mony of marriage with Caroline^ and lived with her till his decease, 
 but at the time of his pretended marriage had a wife, Mary, who 
 survived him. These facts were admitted to show his intention that 
 Caroline was meant. And where lands were devised to M. B. for 
 life, remainder to her three daughters, M., E. and A., in fee as 
 tenants in common, and M. B. had two legitimate daughters named 
 M. and ^., and one illegitimate named ^.; extrinsic evidence was 
 admitted to rebut ^.'s claim, by showing that the testator was igno- 
 rant of her birth, and that B. formerly had a legitimate daughter 
 named E., and who died long before the date of the will, but of 
 whose death there was no proof that he was aware.'' Evidence of a 
 testator's declarations made before his will was executed, that he 
 intended to provide for A. P. in his will, has very recently been held 
 admissible as evidence that such a provision, appearing in an interli- 
 neation in the will, was made before it was executed.' So, if a man 
 
 •■ 12 A. & E. (40 E. C. L. R.) 451. In this case the declarations were made 
 subsequently to the will. 
 
 » Doe d. Gaines v. Rouse, 5 B. C. (57 E. C. L. R.) 422. 
 
 ^ Doe V. Beynon, 12 A. & E. (40 E. C. L. R.) 431. 
 
 ' Doe d. Shallcross v. Palmer, 20 L. J., Q. B. 367. But declarations made 
 afterwards that he had made such provision would not have been evidence for 
 the same purpose : Ibid.
 
 684 PROOFS. 
 
 having two manors of the same name, levy a fine of one, without 
 distinguishing which, parol evidence is admissible to show which was 
 meant." 
 
 It thus appears that such an ambiguity may be raised by parol 
 evidence ;" and that, in the case of a will, &c., the declarations made 
 by the testator before, or at, or after the time of making the will are 
 admissible in order to explain an ambiguity of this nature. 
 
 Where the testator devised to his granddaughter Mary 
 L J "^Tliomas o^ LlecJiloyd, and it appeared that he had a grand- 
 daughter of the name of Ellenor Evans, at Llechloyd, and a great 
 granddaughter, Mary Thomas, who lived elsewhere, evidence on 
 the part of Ellenor Evans was admitted to prove that, when the 
 will was read over to the testator, he said that there was a mistake 
 in the name of the woman to whom he intended to give the house, 
 but that there was no occasion to alter it, as the place of abode and 
 the parish would be sufficient." But, in the same case, it w^as held 
 that evidence was properly rejected of declarations made by the 
 testator at other times previous to the making of his will, of his great 
 regard for the defendant Mary Thomas, and of his intention to give 
 the house to her.^ 
 
 As an ambiguity arising from too great generality of description 
 may be removed by oral evidence, which restrains and confines, and 
 applies that description to a single object, although, on the mere 
 comparison of the terras with several objects, they may be equally 
 applicable to more than one ; so, it is a rule that a redundant and 
 superfluous description, which is inapplicable to an object ivell ascer- 
 tained by previous or subsequent description, will not prevent such 
 application. 
 
 Thus, where property was given to A. and B., legitimate children 
 
 of C. D., it was held that A. and B., the illegitimate children of 
 
 C. D., were entitled to take.'^ So, if a *grant be made to 
 
 '- -^ William, Bishop of Norwich, the name of the bishop being 
 
 ™ Partridge v. Strange, Plow. 85, b. ; Meres v. Ansell, 3 Wils. 275. 
 
 " Thomas clem. Evans v. Thomas, 6 T. R. 671 ; 1 Bro. C. C. 85, 341, 350. 
 
 " Thomas dem. Evans v. Thomas, 6 T. 11. 671. But this case has been strongly 
 objected to in Doe v. Jliscocks, 5 M. & W. 371 ; and see Beaumont v. Fell, jjost, 
 p. 689. 
 
 P Ibid., by Lawrence, J., at the trial : the admission of the evidence was 
 afterwards approved of by the court of K. B. ; and see 8 Vin. Ab. 312, pi. 29 ; 
 2 Ves. 216. 
 
 ^ Slanden v. Slanden, 2 Ves. jun. 589: see 2 Pothier, by Sir D. Evans, 210. 
 Where a woman made a will in favor of a person whom she described to be her
 
 PAROL EVIDENCE TO EXPLAIN WRITTEN. 686 
 
 Richard, the grant will be good, the intention being sufficiently clear 
 and apparent. ° So, if a devise be made to Jolui, the son of J. S., 
 and J. S. has but one son, whose name is James.*' 
 
 Upon the same principles, if the description in the instrument 
 apply partially/ to each of two persons, but to neither of them entirely, 
 so that a doubt arises which was intended, oral evidence is admis- 
 sible to remove it. For as an erroneous and superfluous description 
 will not prevent the application of the description which in part is 
 certain, and as a description equally applicable to two objects may 
 be ascertained and fixed by external evidence, it seems to follow, that 
 where the description, although redundant and partially erroneous, 
 is still limited to two or more objects to whom it is equally applicable, 
 then the generality may be further limited by means of extrinsic evi- 
 dence." 
 
 It is observable that, in the case of a will, evidence for the pur- 
 pose of giving effect to the maker's intention has been more liberally 
 admitted than in the case of any other instrument, and in some in- 
 stances to a greater extent than is strictly warranted by any general 
 principle. It will therefore be proper, in this place, briefly to refer 
 to the general principles and rules which govern this large f.^Q„-, 
 class *of cases, either in common with others of a similar "- -• 
 nature, or as peculiar to the class.^ 
 
 First, then, evidence of the facts and circumstances in respect of 
 which the terms of a will are to be applied is necessarily admissi- 
 ble for the purpose of applying them in their strict sense •/ and 
 
 husband, and it appeared that he had another wife, Arden, Master of the Rolls, 
 held that the disposition was void ; but this was founded not on any defect in 
 the description, but on the principle that where a legacy is given to a person in 
 a character which he has falsely assumed, and which alone can be supposed to 
 be the motive of the bounty, the law will not permit him to avail himself of it: 
 see Doe v. Bouse, 5 C. B. (57 E. C. L. R.) 422, supra, p. 684. Where the 
 description is true in part, but not true in every particular, parol evidence is 
 admissible, provided there be enough to justify the reception of the evidence : 
 Miller v. Travers, 8 Bing. (21 E. C. L. R.) 244: see Careless v. Careless, 1 
 Meriv. 384. 
 
 ^ Evans's Pothier, Vol. II., 209. 
 
 * Dowsett V. Sweet, Amb. 175 ; Bradioin v. Harper, Amb. 374 ; see also Par- 
 sons v. Parsons, 1 Ves. 166 ; Fonnereau v. Poyntz, 1 Bro. C. C. 472 ; and see 
 Doe v. Hubbard, 15 Q. B. (69 E. C. L. R.) 227 ; and further as to parcels, ^osf, 
 p. 691, et seq. 
 
 " See the case of Thomas dem. Evans v. Thomas, 6 T. R. 671, supra, p. 684. 
 
 ^ See tit. Wills. 
 
 y That is, where such primary sense is not limited or confined by the rules of 
 legal construction. The great principle is to give effect to the testator's inten-
 
 687 PROOFS. 
 
 it is an inveterate rule, founded on plain and obvious principles, 
 that where the phrases and terms of the instrument are legal 
 phrases and technical terms, and they are capable of application 
 in their strict, that is, legal and technical, acceptation, they must 
 
 be applied in that sense, and no other/ But, secondly, 
 
 C*688"l . . . 
 
 -• *where it appears from evidence of the material facts, that 
 
 tion in the first place, and within certain limits, by using the words not in their 
 technical sense, but in that which was manifestly intended "by the testator: see 
 Hoyle V. Hamilton, 4 Ves. 437, and the cases there cited ; Hodgson v. Ambrose, 
 1 Dougl. 341 ; Doe v. Perratt, 4 B. & C. (11 E. C. L. R.) 79; and Wigram's 
 Examination, &c., p. 14, &c. And where the sense is not so limited and confined 
 by the context, although the terms are to be applied in the first instance 
 according to their technical sense and acceptation, yet where they are, upon 
 the evidence, incapable of such application, then, in furtherance of the same 
 principle of efi"ectuating the testator's intention, they may, if capable and within 
 certain limits, be applied in a secondary sense. Where, however, the sense in 
 which a term is used is determined by the context, or by the testator's own 
 exposition of his meaning, the term can no longer be applied in evidence in a 
 popular sense, for this would be to use his words in a sense different from that 
 intended by the testator. 
 
 ^ The word child may be applied by evidence to an illegitimate child, where 
 an application, according to the strict legal meaning of the word, is of necessity 
 excluded : but if no such necessity exist, the word must be used in its strictly 
 legal sense : Godfrey v. Davis, 6 Ves. 43 ; Carhvright v. Vawdrt/, 5 Ves. 530 ; 
 Swain v. Kennerley, 1 V. & B. 469 ; Harris v. Lloyd, 1 Turn. & R. 310 ; Bagley 
 V. Hollard, 1 Russ. & M. 581 ; and see Gill v. Shelley, 2 Russ. & M. 336 ; Wig- 
 ram's Examination, &c., p. 17, 2d edit. ; Miller v. Travers, 8 Bing. (21 E. C. L. 
 R.) 244; tit. Will. In the case of a devise of "my real estate," property sub- 
 ject to a power was formerly held to pass if the devisor had no real estate ; but 
 if there were any real estate on which the words could operate, it was other- 
 wise : Napier v. Napier, 1 Sim. 28 ; Leiois v. Llewellyn, 1 Turn. & R. 104 ; and 
 see Deym v. Roake, 5 B. & C. (11 E. C. L. R.) 720; s. c, Bing. (19 E. C. L. R.) 
 475 ; Davis v. Williams, 1 Ad. & E. (28 E. C. L. R.) 588 ; Doe v. Johnson, 7 M. 
 & G. (49 E. C. L. R.) 1047 ; Hughes v. Turner, 3 M. & K. 666 ; Sugden on 
 Powers, c. vi. s. 46, a, &c. It may be doubted whether this reason and the con- 
 clusion drawn from it now apply, since by the Wills Act, 7 Will. IV. & 1 Vict. 
 c. 26, 8. 24, such a will operates, with respect to the real as well as to the per- 
 sonal property, as if it had been executed immediately before the death of the 
 testator. And it has always been held that a power over a personal estate will 
 not pass under the words ''my personal estate," whether the testator at the 
 time of making the will had any personal estate or not, because the words are 
 applicable to such personal estate as may possibly be afterwards acquired : 
 Andrews v. Emmett, 2 Bro. C. C. 297 ; Nannock v. Horton, 7 Ves. 391 ; Jones v. 
 Tucker, 2 Mer. 533 ; Wigram's Examination, &c., 3d ed. p. 18, and the cases 
 tfiere cited. In Druce v. D&nison, 6 Ves. 385, it was indeed held that, for the 
 specific purpose of raising a case of election, extrinsic evidence was admissible 
 to show that the testator, by the words, " my personal estate," meant personal
 
 PAROL EVIDENCE TO EXPLAIN WRITTEN. 688 
 
 the terms of a will are incapable of application in their [-^poQ-, 
 *strict acceptation, evidence is admissible to show that they •- -" 
 are still capable of application in a popular sense, in order so to 
 apply them. In other words, evidence of material extrinsic facts 
 and circumstances* is admissible simply in aid of the construction 
 of a will. And, thirdly, it is a general rule that not only material 
 facts, but also declarations made by the testator, are under certain 
 circumstances admissible, when necessary in order to ascertain the 
 person or thing intended, that is, the object of the testator's bounty, 
 or the subject of disposition, where the terms are applicable indif- 
 ferently to more than one person or thing.'' The authorities go 
 
 estate subject to a power. This case, however, as is observed by Mr. Wigram, 
 p. 39, stands opposed to a strong current of authorities. In further illustration 
 of the general rule above stated, the case of Doe dem. Richardson v. Watson, 4 
 B. & Ad. (24 E. C. L. R.) 787 ; may be cited. The question was, whether two 
 closes of land passed under the word close, and it was held that they did not ; 
 and Parke, J., observed, " Generally speaking, evidence may be given to show 
 that the testator used the word close in the sense which it bore in the country 
 where the property was situate, as denoting a farm, but here such evidence was 
 not admissible, because it is manifest that in this will the testator used the word 
 close in its ordinary sense, as denoting an enclosure ; for the word close occurs 
 in other parts of the will ;" see also Boys v. Williams, 3 Sims. 573 ; Doe d, 
 Westlake v. Westlake, 4 Dow. P. C. 65 ; Doe v. Bower, 3 B. & AdJ (23 E. C. L. 
 R.) 453 ; Doe d. Templeman v. Martin, 4 B. & Ad. (24 E. C. L. R.) 771. Lord 
 Bacon, in his comment on his 13th maxim, Non accipi debent verba in demon- 
 strationem falsam qua; competunt in limitationem veram, states the rule thus, 
 "If I have some land wherein all the demonstrations are true, and some wherein 
 part of them are true and part false, then shall they be intended words of true 
 limitation to pass only those lands wherein all those circumstances are true :" 
 see Doe v. Ashley, 10 Q. B. (59 E. C. L. R.) 663 ; Morrell v. Fisher, 4 Ex. 591 ; 
 Wood V. Rowcliffe, 6 Ex. 407 ; Doe v. Hubbard, 15 Q. B. (69 E. C. L. R.) 227 ; 
 post, p. 694. 
 
 * It seems to be a general rule that all facts relating to the subject and object 
 of the devise, as to the possession of the testator or other person, the mode of 
 acquisition, local situation, and distribution of the property, are admissible to 
 ascertain the meaning of a will: see the observations of Parke, J., Doe v. Mar- 
 tin, 4 B. & Ad. (24 E. C. L. R.) 785 ; Boys v. Williams, 2 Russ. & M. 689. 
 
 ' See note (z) : Wilkinson v. Adams, 1 V. & B. 422 ; Beachcroft v. Beachcroft, 
 1 Mad. 436 ; Bayley v. Snelham, 1 Sim. & Stu. 78 ; Woodhouslie v. Dalrymple, 2 
 Mer. 419 ; per Lord Hardwicke, in Goodinge v. Goodinge, 1 Ves. 231 ; Lord Thur- 
 low, in Jeacock v. Falkener, 1 Bro. C. C. 295 ; Lord Loughborough, in Mackell 
 V. Winter, 3 Ves. 540 ; Lord Manners, in Croane v. Odell, 1 Ball. & B. 480 ; 
 Colpoys V. Colpoys, 1 Jac. 451 ; Lord Eldon, in Oakden v. Clifden, Lincoln's 
 Inn Hall, 1806 ; Lane v. Lord Stanhope, 6 T. R. 345 ; Gibson v. Gell, 2 B. & C. 
 (9 E. C. L. R.) 680; Pocock v. Bishop of Lincoln, 3 B. & B. (7 E. C. L. R.) 27 ; 
 Wilder'' s case, 6 Rep. 16 ; see tit. Will.
 
 689 PROOFS. 
 
 still further : it has been held that difficulties arising in the appli- 
 cation of the terms of a will from defect in the description of the 
 person or thing intended, may be removed by the aid of extrinsic 
 evidence, even although no part of the description be perfectly cor- 
 rect. One of the strongest instances to this effect is the case of 
 Beaumont v. Fell.'' A will was made in favor of Catharine Earnley., 
 and evidence was allowed to show that Grcrtrude Yardley was the 
 person meant ; no such person as Catharine Earnley appearing to 
 
 claim the legacy. Evidence *was admitted to prove that the 
 r*6901 . . 
 
 '- -^ testator's voice, when he made his will, was very low and 
 
 scarely intelligible ; that the testator usually called Gertrude Yard- 
 ley by the name of G-atty^ which the scrivener who made the will 
 might easily mistake for Katy ; and that the testator referred the 
 scrivener to his wife for the name of the legatee, and she afterwards 
 declared Gertrude Yardley was the person intended. But, in the 
 case of Boe v. BiscocJcs,^ before mentioned, the Court of Exchequer, 
 in their elaborate judgment, have considered this case as consistent 
 with true principles only inasmuch as there was no such person as 
 Catharine Earnley^ and as Gertrude Yardley was usually addressed 
 by the testator by the name of Gatty. 
 
 Where the testator gave a legacy to John and Benedict, sons of 
 John Sweet, and John Stveet the father had two sons only, viz., James 
 and Benedict, evidence was admitted to prove that the testator used 
 to address James Sweet by the name of '■'' Jachey.'"^ Where a legacy 
 was given in moieties, one to Ann, the daughter of Mary Bradwin, 
 the other to the children of Mary Bradtvin, another daughter of the 
 first-named Mary Bradwin, and it appeared that when the will was 
 made Ann Bradwin was dead, having left two children, but that 
 3Iary Bradwin the daughter Avas living, and single, the Master of 
 the Rolls held that evidence was admissible to explain the legacy.^ 
 
 The apparent impossibility of reconciling upon principle the giving 
 effect to a description inapplicable to any subject, with the undisputed 
 
 •* 2 P, Wms. 141 ; see also Lord Thurlow's dictum in Maijhank v. Brooks, 1 
 Bro. C. C. 85 ; and see Bi-own v. Langli/, 2 Barn. 118. 
 
 <» 5 M. & W. 371, ante, p! 681 ; and see Miller v. Travers, 8 Bing. (21 E. C. L. 
 R.) 244. 
 
 ' Dowsett V. Sweet, Ambl. 175; and see 1 Bro. C. 31, 85; see also Masters v. 
 Masters, 1 P. W. 421. 
 
 ' Bradwin v. Harper, Ambl. 374. Devise to aS'. H., second son of T. H., when 
 in fact he was the third son, evidence of the state of the testator's family and 
 other circumstances was admitted to show the mistake in the name : Doe v. 
 Iluthwaite, 3 B. & Aid. (5 E. C. L. R.) 032.
 
 PAROL EVIDENCE TO EXPLAIN WRITTEN. 690 
 
 law that even in the case of a legacy evidence is inadmissible to fill 
 
 up a blank, ^ seems *to induce the necessitv of at once 
 
 ■ ■ . " r*691"l 
 
 placing the reception of such evidence upon the footing of a ^ -• 
 
 peremptory and arbitrary exception to general rules and principles, 
 and to exclude all attempts at reconciliation. In the case of a blank 
 the effect of the evidence might simply be to supply a name men- 
 tioned by the testator: in the case of a total misdescription, evidence 
 is necessary not simply to supply but to substitute a description. It 
 seems to be very questionable whether Lord Bacon's rule as to 
 ambiguities, be applicable to a case not of a double meaning, but to 
 simple deficiency of description.'' 
 
 In general, where there is any doubt as to the extent of the sub- 
 ject devised by will, or demised, or sold, it is matter of extrinsic 
 evidence to show what is included under the description as parcel 
 
 of it.' The question beinij ^whether a description in a 
 
 . • . r*6921 
 
 lease [inter alia) of a piece of ground, late in the occupa- •- "-^ 
 
 ^ In Beaumont v. Fell, supra, the Master of the Rolls, although he admitted 
 the evidence, said, " If this had been a grant, nay, had it been a devise of land, 
 it had been void by reason of the mistake both of the Christian and surname ;" 
 and see Doe v, Hiscocks. 
 
 ^ See Wigram's Examination, &c., 179. 
 
 ' Doe v. Bnrt, 1 T. R. 701. Buller, .J., said, whether parcel or not of the thing 
 demised, is always matter of evidence : see Kerslake v. White, 2 Starkie (3 E. C. 
 L. R.) 508 ; where it was held, that the demise of a messuage, with all rooms 
 and chambers thereto belonging and appertaining, included all that was occupied 
 together as the entire messuage at one and the same time, and that the demise did 
 not include a room which he had once formed part of the messuage, but which had 
 been separated from it for many years anterior to the demise : Herbert v. Reid, 
 16 Ves. 481. In Doe d. Beach v. Earl of Jersey, 3 B. & C. (10 E. C. L. R.) 870; 
 under a devis« by the testator of all his Briton Ferry estate, it was held, that 
 accounts of deceased stewards of former owners, in which they charged themselves 
 with the receipt of various sums of money on account of the owners, were admis- 
 sible in evidence to show that particular lands had gone by the name of the 
 Briton Ferry estate : see Goodtitle v. Southern, infra. So in the case of a writ- 
 ten agreement to convey all those brickworks in the possession of A. B., parol 
 evidence is admiesible of what passed at the time of the agreement, to show what 
 was intended to pass: Paddock v, Fradley, 1 C. & J. 90. Where a line was 
 levied of twelve messuages in Chelsea, and it appeared that the cognisor had more 
 than twelve messuages in Chelsea, parol evidence was admitted to show which 
 were meant : Doe v. Wilford, R. & M. (21 E. C. L. R.) 88. There being a devise 
 of Trogues Farm, in the occupation of M., it may be shown that M. was not 
 tenant : Croodtitle v. Southern, 1 M. & S. 297 ; Doe v. Gallowaij, 5 B. & Ad. (27 
 E. C. L. R.) 43 ; Jack v. M'Intyre, 12 CI. & F. 151. Where a deed granted all 
 the coal mines in the lands in the occupation of widow K. and son, and the grantor 
 had not any lands in the occupation of widow K. and son, and the deed was
 
 692 PROOFS. 
 
 tion of A. (the piece of ground being a yard, then in the occupation 
 of A.), a cellar and certain wine-vaults under it passed, evidence 
 was admitted to prove, that at the time of the lease the cellar and 
 vaults were not in the occupation of A., but were under lease to B., 
 another tenant of the lessor, and that the defendant never claimed 
 them until the expiration of ^.'s lease. But where a subject-matter 
 exists, which satisfies the terms of the will, and to which they 
 are perfectly applicable, there is no latent ambiguity ; and no evi- 
 dence can be admitted for the purpose of applying the terms to a 
 different object.'' In the case of Doe d. Sir A. Chichester v. Oxen- 
 den^ the question was, whether parol evidence could be admitted to 
 show that the testator, by a devise of his estate at Ashton, intended 
 to devise all his maternal estate, consisting of two manors in the 
 parish of Ashton, and one in the adjoining parish ; the court, after 
 hearing *two arguments, decided against the evidence. Sir 
 L ' J J. Mansfield, C. J., in giving judgment, referred to the cases 
 of Beaumont v. Fell,^ and Dowset v. Sweet ;^ and distiugnished the 
 
 founded upon a contract of sale to which the grantor's land steward was the 
 subscribing witness ; held that, to explain the latent ambiguity in the deed, let- 
 ters written by the latter to the grantees respecting the sale of the coal mines, and 
 purporting to be written by his directions, were admissible, without showing an 
 express authority from the grantor to write them : Beaumont v. Field, 1 B. & 
 Aid. 247 ; but see Doe v. Webster, 12 A. & E. (40 E. C. L. R.) 442 ; Williams v. 
 Morgan, 15 Q. B. (69 E. C. L. R.) 782. 
 
 ■> Lord Walpole v. Lord Cholmondeley, 7 T. R. 138; Carruthors v. Sheddon, 6 
 Taunt. (1 E. C. L. R.) 14 ; Doe v. Ashley, 10 Q. B. (59 E. C. L. R.) 663 ; Mor- 
 rell V. Fisher, 4 Ex. 591 ; Wood v. Rowcliffe, 6 Ex. 407, ante, p. 688, note (2). 
 So where words have acquired a precise and technical meaning : lb. ; per Lord 
 Kenyon, 6 T. R. 352 ; Mountain v. Blaimire, 4 Russ. 384. And although the 
 mere name of a devisee in a will be applicable to several, parol evidence of ap- 
 plication is not admissible, if it can be collected from the will who was intended : 
 Doe V. Westlake, 4 B. & Aid. (6 E. C. L. R.) 57. 
 
 "^ 3 Taunt. 147 ; 4 Dow. 65. 
 
 ' 2 P. Wms. 140 ; also to Whitbread v. May, 2 Bos. & Pull. 593, where the 
 question was as to the effect of a codicil, by which the testator revoked a former 
 general devise of all his estates, so far as it related to his estate at Leeshill in 
 the county of Wilts, and Ileurne, and Buckband in the county of Kent. The 
 testator had lands in Jlearne and several other parishes, all of which he had pur- 
 chased by one contract from one person ; evidence was oflFered to show that the 
 testator meant to revoke the devise, not only as to the lands in Ilearne, but also as 
 to all the lands purchased at the same time ; the evidence was received at the trial, 
 subject to the opinion of tlie Court of C. B., which was equally divided upon the 
 question : sec Doe d. Brown v. Brown, 11 East 441 ; Doe v. Lyford, 4 M. & S. 
 550. 
 
 " Amb. 175 ; supra, p. 689.
 
 PAROL EVIDENCE TO EXPLAIN WRITTEN. 693 
 
 present case, on the ground that in those the will would have had no 
 operation unless the evidence had been received; whereas in the present 
 the will would have an effective ojJeratio?! to pass all the estate within 
 the parish of Ashton, without the evidence proposed ; that in the 
 other cases the evidence was admitted to explain that which otherwise 
 would have had no operation, and that it was safer not to go beyond 
 that line. The same question was afterwards brought before the 
 House of Lords," *where judgment was given corresponding 
 with that of the Court of Common Pleas. L *- J 
 
 And where a testator " devised all those two cottages or the tene- 
 ments, the one occupied by my son John Hidthard, the other occu- 
 pied by my granddaughter," and the property originally consisted 
 of two copyhold cottages, of which part only of one was occupied by 
 John Hubbard, and part only of the other by the granddaughter, 
 and both of these parts had been separated by partition from the 
 rest, which was occupied by other persons including the testator, and 
 both parts had separate outer doors, the Court of Queen's Bench 
 was divided whether the directions given by the testator to the person 
 who drew his will, indicating that he spoke of his copyhold premises 
 by the description in the will, were admissible." 
 
 ° Doe d. Oxenden v. Sir A. Chichester, 4 Dow. 65, in an action brought by the 
 devisee against the heir at law. The question on the admissibility of the evidence 
 having been referred to the judges, Sir V. Gibbs, C. J. of C. P., delivered their 
 unanimous opinion, that the evidence ought not to be admitted. In delivering 
 that opinion, he observed, " The courts of law have been jealous of extrinsic evi- 
 dence to explain the intention of a testator, and I know of only one case in which 
 it is permitted ; that is, where an ambiguity is introduced by extrinsic circum- 
 stances. There, from the necessity of the case, extrinsic evidence is admitted to 
 explain the ambiguity. For example, where a testator devises his estate of Black- 
 acre, and has two estates called Blackacre, evidence must be admitted to show 
 which of the Blackacres is meant. So, if one devises to his son John Thomas, 
 and he has two sons of that name. So, if one devises to his nephew William 
 Smith, and has no nephew answering the description in all respects, evidence 
 must be admitted to show which nephew the testator meant, by a description not 
 strictly applying to any nephew. The ambiguity there arises from an extrinsic 
 fact or circumstance ; and the admission of evidence to explain the ambiguity is 
 necessary to give effect to the will ; and it is only in such a case that extrinsic 
 evidence can be received. It is of great importance that the admission of extrinsic 
 evidence should be avoided, where it can be done, that a purchaser or heir at law 
 may be able to judge from the instrument itself what lands are, or are not to be 
 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." See Doe v. 
 Morgan, 1 C. & M. 235. 
 
 » Doe V. Hubbard, 15 Q. B. (69 E. C. L. R.) 227. 
 41
 
 604 PROOFS. 
 
 But neither a new subject-matter of devise, nor a new devisee, 
 where the will is silent upon either, can be imported bj parol evi- 
 dence into a will. Thus in Miller v. Travers,^ where a testator 
 devised all his real estates in the County of Limerick, and in the 
 City of Limerick, but in fact he had no estates in the former, and 
 only a small one in the latter inadequate to meet the charges in the 
 will, but he had large estates in the County of Clare, which were not 
 mentioned in the will, the devisee was not allowed to prove by parol 
 evidence that the testator's intention *was to devise the estates 
 L *" -J in Clire by showing that those estates were devised to him in 
 the draft of the will ; that this was se it to a conveyancer to make 
 some alteration as to other parts of the will, and he had by mistake 
 erased the words, " County of Clare," which mistake had not been 
 adverted to by the devisor when he executed the will. 
 
 In the next place, extrinsic evidence is admissible for the purpose 
 of construing ancient charters, explaining the meaning of the terms 
 of contracts, to which a peculiar and technical sense has been an- 
 nexed, by custom and usage. Also for the purpose of showing the 
 consequences and incidents, which, by virtue of a known and estab- 
 lished custom, are by presumption of law appurtenant to the general 
 terms of a contract. 
 
 In ancient cliarters words are often to be found of doubtful import 
 from their antiquity; the particular terms may have become obscure, 
 or even obsolete ; but it would be highly unreasonable, as well as in- 
 convenient, that on this account the Avhole should perish ; the terms 
 were probably understood when the instrument was made ; and it is 
 also probable that the usage and practice then conformed, and that 
 they have since continued to conform, with the real meaning and 
 sense of those expressions ; and hence such ancient and continuing 
 usage may with reason and prudence be resorted to as the exposi- 
 tors of such doubtful terms'' and phrases ; more especially where the 
 
 P8 BinfT. (21 E. C. L. R.) 244. 
 
 •J In The Attoraoj/- General v. Parker^ 3 Atk. 576, Lord Ilardwicke observed, 
 that in the conbtruction of ancient grants and deeds there is no better way of 
 construing them than by usage, and contemporanea expositio est optima. In R. 
 V. Varlo, Cowp. 248, Lord Mansfield observed, "Supposing the terms of the 
 chartijr doubtful, the usage is of great force ; not that usage can overturn the 
 clear words of a charter; but if they are doubtful, the usage under the charter 
 will tend to explain the meaning of them." Lord Coke in his Comment on the 
 Stat, of Glouce^^te^, 2 Inst. 282, observes, " ancient charters, whether they be 
 before the tinje of memory or after, ought to be construed as the law was when 
 the charter was made, and according to ancient allowance ;"' and again, " when
 
 PAROL EVIDENCE TO EXPLAIN CHARTERS. 696 
 
 charter *concerns the public interests of a large body, who 
 would not, it may be presumed, have acquiesced in an L J 
 illegal interpretation and application of its terms. Such evidence 
 may be considered as somewliat analogous to the practice of the 
 courts, in considering the usage supplied ])y the precedents as to the 
 construction of a doubtful statute, except that the courts themselves 
 notice the contemporaneous and subsequent construction put upon 
 the statute ;"■ but in the case of a charter, the usage, if not admitted, 
 must be ascertained as a fact by a jury. 
 
 Such evidence in aid of the construction of a doubtful charter is 
 also founded in part upon considerations of legal policy and conve- 
 nience, for the purpose of quieting litigation, and supporting long- 
 continued and established usages.' In the case of Withnell v. Gart- 
 ham,^ Lawrence, J., observed, "If there be any ambiguity in this 
 *deed, usage is admissible to explain it; and the argument rifr-of-^ 
 of convenience or inconvenience from this or that construc- 
 tion of a deed creates that sort of ambiguity that should be explained 
 by usage." 
 
 In the case of Tlie King v. Oshourne,'' by the terms of the charter 
 the power of electing aldermen was committed tj the mayor and 
 commonalty. According to the usage., the term commonalty included 
 aldermen; and the court were of that opinion and construed the 
 
 any claimed, before the justices in eyre, any franchises by an ancient charter, 
 though it had express words for the franchises claimed, or if the words were 
 general, and a continual possession pleaded of the franchises claimed, as if the 
 claim was by old and obscure words, and the party in pleading, expounded them 
 to the court, and averring continual possession according to that exposition, the 
 entry was ever ' Iiiqiiiratur super possessionem et usum,^ &c., which I have ob- 
 served in divers records of those eyres, agreeable to that old rule, ' Optimus in- 
 ierpres rerum usus.^ " However general the words of ancient deeds may be, 
 they are to be construed, as Lord Coke says, by evidence of the manner in which 
 they have been possessed and used : per Lord Ellenborough, in Weld v. Hornby, 
 7 East 199. Long user may serve to explain an ambiguous Act of Parliament : 
 Stewart v. Lawton, 1 Bing. (8 E. C. L. R.) 377. To explain what is meant by 
 "tithes" in a crown grant, contemporaneous leases and other extrinsic evidence 
 and testimony are admissible to show the kind of tithes intended to be conveyed : 
 Linton School v. Scarlett, 2 Y. & J. 330 ; and see Doe v. Beviss, 7 C. & B. (62 
 E. C. L. R.) 456. 
 
 ' See R. V. Hogg, 1 T. R. 728. 
 
 ■ See the observations of Buller, J., Blanliey v. Winstanley, 3 1. R. 228. 
 
 * 6 T. R. 383. Where the nomination of a curate was, by a deed of 1656, given 
 to the " inhabitants," it was held that the word was properly explained by past 
 usage to mean " all housekeepers." 
 
 » 4 East 327.
 
 697 PROOFS. 
 
 charter accordingly/. Usage was, on the same principle, admitted 
 as explanatory evidence as to the mode of presentation, where a pre- 
 sentation to a curacy had been given by deed ninety years before 
 to the par is! doner 8 and inJiabitants of Clerkenwell.y Also, in order 
 to show that an act, which by the terms of a charter was committed 
 to the mayor, aldermen and burgesses, or the greater part of them, 
 was well executed by the majority present at a regular meeting, 
 although not by a majority of the whole number f that a presentation 
 given by a charter to the mayor, aldermen and burgesses, was pro- 
 perly executed by the mayor and aldermen only;^ that the justices 
 of a county have a concurrent jurisdiction with the justices of a 
 r*fiQSl ^o^^ug^'*' under the particular *charter. Again, where the 
 power of appointing a schoolmaster was given to the minister 
 and churchwardens, to show that an appointment by the minister and 
 a majority of the churchwardens is good.'' And a charter of Richard 
 II., empowering the Merchant Tailors' Company to elect a master 
 and warden de scriptis, but not prescribing the mode, was considered 
 to be properly construed in that respect by the usage. "^ 
 
 It is not essential to the admissibility of evidence of usage that the 
 instances proved should be as ancient as the deed; a custom from 
 
 ^ Lord Ellenborough said, that without resortino; to any assistance from con- 
 temporaneous and subsequently continuing usage (to which, however, in such 
 cases, upon the best authorities in the law, resort may allowably be had), on the 
 face of the charter itself, by a fair construction of it, commonalty does include 
 aldermen. 
 
 ^ Attorney- General v. Parker^ 3 Atk. 576 ; Attorney-General v. Foster, 10 Ves. 
 335; R.v. Davies, 6 Ad. & E. (33 E. C. L. R.) 374. 
 
 ^ R. V. Varlo, Cowp. 248. But as to the decision in this case, vide infra, p. 699, 
 note [f). See also J?, v. Oshourne, 4 East 327 ; Bailiffs of Tewkesbury v. Brick- 
 nell, 2 Taunt. 120 ; R. v. Mayor of Chester, 1 M. & S. 101 ; Chad v. Tilsed, 2 B. 
 & B. (6 E. C. L. R.) 409; R. v. Mayor, (be., of Stratford-iqjoji-Avon, 14 East 
 348 ; Mayor of London, &c., v. Long, 1 Camp. 22 ; Weld v. Hornby, 7 East 199 ; 
 see also R. v. Mayor of St. Alban's, 12 East 559. 
 
 " Gape V. Bandley, 3 T. R. 288, n. 
 
 ^ Blankley v. Winstanley, 3 T. R. 279, Note, Buller, J., observed that " Usage 
 consistent with the charter has prevailed for one hundred and ninety years past, 
 and if the words of the charter were more disputable than they are, I think that 
 ought to govern the case. There are cases in which the court has held that 
 settled usage would go a great way to control the words of a charter ; and it 
 is for the sake of quieting corporations that this court has always upheld long 
 usage, where it was possible, though recent usage would perhaps not have 
 much weight." And see per Patteson, J., R. v. Atwood, 4 B. & Ad. (24 E. C. 
 L. R.) 507. 
 
 « Withndl V. Gartham, 6 T. R. 388. 
 
 <» R. V. Atwood, iB. & Ad. (24 E. C. L. R.) 481.
 
 PAROL EVIDENCE TO EXPLAIN CHARTERS. 698 
 
 time of legal memory is frequently established by evidence of facts 
 done at a much later period.® 
 
 Where, however, the terms of an ancient charter are not in them- 
 selves doubtful, either from the use of equivocal and obscure terms, 
 or in point of legal construction, evidence of usage can no longer 
 avail ; its legitimate object is to remove doubts ; its functions there- 
 fore cease where no doubt exists ; and to admit it in such a case 
 would be not to obviate, but to create doubts. Where a statute con- 
 stituted a body of forty-eight, with power, in conjunction with certain 
 others, to do corporate acts in the town of Northampton, it was held 
 that an usage of three hundred years' continuance was unavailable 
 to show that the attendance of a majority of forty-eight was not 
 requisite, the general question having been *already settled, r^f^qoi 
 that where such powers are delegated to a definite body, the 
 attendance of a majority of that body is essential.^ 
 
 To decide whether the construction of a charter be so doubtful as 
 to admit of explanation from usage, or whether, on the other hand, 
 the terms be so intelligible in their usual plain and ordinary sense, or 
 by any necessai-y construction of law, with reference to antecedent 
 decisions, is obviously a pure question of law.^ The ambiguity, to 
 require such aid, must clearly be such as arises upon reading the 
 instrument itself, independent of any extrinsic considerations ; and 
 unless a doubt arises from that source usage can avail nothing ; for 
 if it be consistent with the legal construction of the deed, it is unim- 
 portant ; if it be contrary to such construction, to admit it would be, 
 not to explain, but to subvert, an authentic instrument by the aid of 
 presumption and opinion. In the case of Stammers v. Dixon^ where 
 
 ^ See Lord Kenyon's observations in Withnell v, Gartham,6 T. R. 388 ; where 
 the question was upon the construction of an ancient deed, granting to the 
 minister and churchwardens of a parish the power of appointing a school- 
 master, 
 
 ' B. V. Miller, 6 T. R. 268 ; and see E. v. Bellringer, 4 T. R. 810. There the 
 charter of Bodmin gave power to a definite body, which was exercised by a ma- 
 jority of the subsisting body, but not by a majority of the definite number. 
 Usage was adduced to show that a majority of the definite number was essential ; 
 but the court declined to decide upon the validity of the usage alleged, being of 
 opinion, upon the construction of the charter, and without reference to usage, 
 that a majority of the whole definite body was requisite: see Bailiffs of God- 
 manchester v. PhiUips, 4 A. & E. (31 E. C. L. R.) 550. 
 
 8 See the observations of Sir D. Evans on this head, 2 Evans's Pothier 213, 
 et sequent. 
 
 ^ 7 East 200; Lord Petre v. Blencoe, 4 Gwill. 1484 ; see per Wilde, C. J., Cox 
 V. Glue, 5 C. B. 548 ; Doe v. Beviss, 7 C. B. (62 E. C. L. R.) 483.
 
 699 PROOFS. 
 
 the ancient admissions of the copyholders were to land bj the de- 
 scription of tres acras prati, it was held that evidence was admissible 
 to show, from acts of enjoyment, that the admission must be con- 
 strued to mean prima tonsura only. Even in the case of a statute, 
 universal usage has sometimes been resorted to for the purpose of ex- 
 
 ^ - ^ plaining doubtful terms.' And in the case of Withnell v. 
 
 r 7001 . 
 
 •- -' Garthamy- *it was held that evidence of usafre was as much 
 
 admissible to construe a deed made by the founder of a school, though 
 a private person, as in the case of the King's charter. 
 
 The doctrine of applying evidence of contemporaneous usage to 
 the construction of ancient deeds, has, it appears, been applied to 
 merely private as well as to public instruments ;' but it is obvious 
 that the reasons for allowing it in the former case apply with much 
 less force, inasmuch as the mere assent and acquiescence of a private 
 person, who may have been ignorant of his rights, affords a presump- 
 tion very inferior in weight to that Avhich is to be derived from the 
 long-established practice and usage of a public body. The applica- 
 tion of this principle to the case of private instruments has, however, 
 been denied in two instances™ in equity, and it seems to be very 
 
 * Sheppard v. Gosnold, Vaugh. 169 ; B. v. Scott, 3 T. R. 604; Corporation of 
 Dunbar v. Duchess of Roxhury, 3 CI. & F. 33. But, in general, evidence is not 
 admissible to explain the meaning of a statute, as to show what is meant by 
 the word square according to the technical usage of the trade : The Attorney- 
 General V. The Plate Glass Co., 1 Anst. 39. Where a contract is for so many 
 bushels of corn, statutory bushels must be intended: Hockin v. Cooke, 4 T. R. 
 314. 
 
 ^ 6 T. R. 388. Lord Kenyon observed, that if there were any difference, it 
 would be in favor of the admissibility in the case of a private deed, for the 
 King's grants are not construed strongly against the grantor, as private deeds are. 
 
 ' In the case of Cooke v. Booth, Cowp. 819, the doctrine was extended to a 
 subject of a nature merely private. A lease contained a covenant of renewal ; 
 the question was, whether by the terms of the covenant each subsequent lease 
 was to contain a similar covenant ; and as there had been several successive re- 
 newals, with similar covenants, the court held that the parties by their practice 
 had put their own construction on the covenant, and were bound by it. Where 
 the terms of an award are aml)iguous in relation to a road, subsequent usage is 
 admissible in explanation of its meaning: Wadley v. Bayliss, 5 Taunt. (1 E. C. 
 L. R.) 752. 
 
 "■ Buyham v. Gay's Hospital, 3 Ves. 298 ; 6 Ves. 237. In the case of Iggulden 
 V. May, in error, 2 N. R. 449, Mansfield, C. J., in giving judgment, observed 
 upon the case of Cooke v. Booth, " We think that was the first time that the acts 
 of the parties to a deed were ever made use of in a court of law to assist the 
 construction of that deed ;" s. 0. 7 East 237. In Hughes v. Gordon, 1 Bli. 289) 
 it was said that evidence to explain a deed was highly dangerous, except in 
 cases of fraud or misrepresentation ; and see Clifton v. Wahncsley, 5 T. R. 564 j 
 Clinan v. Cooke, 1 Sch. & Lef. 22 ; Stammers v. Dixon, 7 East 200.
 
 PAROL EVIDENCE TO EXPLAIN CONTRACTS. 701 
 
 doubtful *whcther such evidence would now be received in a 
 court 01 law. ^ -^ 
 
 Where terms are used which are known and understood by a par- 
 ticular class of persons, in a certain special and peculiar sense, evi- 
 dence to that effect is admissible for the purpose of appli/ing the in- 
 strument to its proper subject-matter ; and the case seems to fall 
 within the same consideration as if the parties in framing their con- 
 tract had made use of a foreign language, which courts are not bound 
 to understand. Such an instrument is not on that account void ; it 
 is certain and definite for all legal purposes, because it can be made 
 so in evidence through the medium of an interpreter. Conformably 
 with these principles, the courts have long allowed mercantile instru- 
 ments to be expounded according to the usage and custom of mer- 
 chants, who have a style and language peculiar to themselves, of 
 which usage and custom are the legitimate interpreters."^ 
 
 ° A jury may properly judge of the meaning of mercantile phrases in the 
 letters of merchants: Lucas v. Groning, 7 Taunt. (2 E. C. L. R.) 164; Mallan 
 V. May^ 13 M. & W. 511. Hence witnesses may be called to show that a par- 
 ticular expression in a commercial contract is understood in the mercantile 
 world, in a different sense from its ordinary import : Chaurand and another v. 
 Angerstein, Peake, C. 43. Or that particular meaning was affixed to a word of 
 indeterminate signification (privilege), in a previous conversation between the 
 parties : Birch and another v. Depeyster, 4 Camp. C. 385 ; 1 Stark. C. (2 E. C. L. 
 R.)210, s. c. ; andsee7if^uZ(7env. 3%,7East237; 9Ves.325; 2 N.R. 449,s.c. A 
 bill of lading contains a memorandum, " to be discharged in fourteen days," or 
 pay five guineas a day demurrage ; evidence of usage may be adduced to show, 
 that working days, and not running days are meant : Cochran v. Betberg, 3 Esp. 
 C. 121. Parol evidence may likewise be given to show that in a particular 
 place, trade or business, e. g., that of an auctioneer, the term "month" means 
 calendar, and not lunar month: Simpson v. Margitson, 11 Q. B. (03 E. C. L. 
 R.) 23. So, to show that in the theatrical world an engagement for three years 
 means three seasons : Grant v. Maddox, 15 M. & W. 737. So, to show that in 
 matters connected with the rabbit warrens in a certain district, a thousand 
 rabbits means twelve hundred : Smith v. Wilson, 3 B. & Ad. (23 E, C L R.) 
 728. By a charter, a vessel with a cargo of coals to Algiers was to be unloaded 
 at a certain rate per day, and if detained longer the charterer was to pay so 
 much per day from the time of the vessel being ready to unload, and in turn to 
 deliver. Evidence to show that in the port of Algiers these words had acquired 
 a particular meaning was held admissible : Robertson v. Jackson, 2 C. B. (52 E- 
 C. L. R.) 412. So, to show what is the meaning in a bill of lading of a de- 
 livery " in London :" Bourne v. Gatleffe, 3 M. & G. (42 E. C. L. R.) 643. And 
 where timber was sold warranted " sound," and the issue was whether it was 
 sound, evidence was admitted to show that in the timber trade the word sound 
 
 ' Parol evidence is always admissible for the purpose of applying a written 
 instrument to its proper subject-matter : Bennett v. Pierce, 28 Conn. 315 ; Hul-
 
 702 PROOFS. 
 
 *Thu?, a general warranty in a policy of insurance to de- 
 L "-^ part with convoy, may be proved, according to mercantile 
 
 had a technical meanincr, and did not import absolute freedom from defects: 
 Woodhouse V. Swift, 7 C. & P. (32 E. C. L. R.) 310. Evidence of a communi- 
 cation to the insurer is admissible to define what otherwise is indefinite : Urqu- 
 hart V. Barnard, 1 Taunt. 450 ; but in general, in the construction of an a«;ree- 
 ment or deed, the conduct or correspondence of the parties cannot be taken 
 into consideration: see Simpson v. Margitson, 11 Q. B. (63 E. C. L. R.) 23; 
 Sugden's Concise View of the Law of Vendors and Purchasers, p. 116. Where 
 an entry made by a clerk since deceased is ambiguous, a person conversant 
 with the mode in the office in which the business was conducted may be called 
 to explain a particular item : Hood v. Reeve, 3 C. & P. (14 E. C. L. R. ) 532. In 
 trover for goods sent by the plaintiff to the defendant, a packer, and expressed 
 in the receipt to have been received on account of the plaintiff for 3f., the party 
 to whom they had been sold ; it was held, that evidence of the usage of trade 
 was admissible to explain the meaning of ambiguous terms in such receipt: 
 Bowman v. Horsey, 2 M. & R. 85 ; see Si/ers v. Bridge, Doug. 527 ; Edie v. East 
 India Company, 2 Burr. 1216 ; 1 Ves. 459. But evidence that "last" imported 
 foreign, not English measure, was held inadmissible : Muller v. Living, 4 Taunt. 
 102; and see HoeJcin v. Cooke, 4 T. R. 314. And Cresswell, J., refused to 
 admit evidence of what was meant by " building" in a contract for building 
 cottages : Charlton v. Gibson, 1 C. & K. (47 E. C. L. R.)-54l ; see Shore v. Wilson, 
 9 CI. & F. 499. So evidence to show that cargo and freight apply to passengers 
 as well as goods has been rejected as inadmissible : Lewis v. Marshall, 7 M. & 
 G. (49 E. C. L. R.) 729 ; or that a contract to sell Ware potatoes meant a par- 
 ticular sort of Ware potatoes: Sruith v. Jeffreys, 15 M. & W. 561. 
 
 ton V. Arnitt, 51 111. 198 ; Hughes v. Sandal, 25 Tex. 162 ; State v. Hagood, 23 
 Ark. 553 ; Webster v. Blount, 39 Mo. 500 ; Eagg v. Hale, 40 Vt. 138 ; Gould v. 
 Lee, 5 P. F. Smith 99 ; Ames v. St. Paul R. R. Co., 12 Minn. 412 ; Marshall v. 
 Gridla/,^e, 111. 247; Sargeant v. Solberg, 22 Wis. 132; Young v. Ticigg, 27 
 Md. 620; Creasy v. Alverson, 43 Mo. 13 ; SwoU v. Shumivay, 102 Mass. 365. 
 
 In a mercantile transaction, where the terms of a written instrument are tech- 
 nical or equivocal on its face, or are made so by reference to extraneous cir- 
 cumstances, parol evidence of the usage and practice in the trade is admissible 
 to explain their meaning : William v. Wood, 16 Md. 220 ; Myers v. Walker, 24 
 111. 133. Parol evidence is admissible to explain the meaning of a technical 
 term, the signification of which is only known to those engaged in the ti-ade : 
 Smith V. Clayton, 5 Dutch. 357 ; New Jersey Co. v. Boston, 2 McCarter 418. 
 
 A bill of lading cannot be contradicted or varied by parol evidence : Cox v. 
 Peterson, 30 Ala. 608 ; Indianapolis Railroad Co. v. Remmy, 13 Ind. 518 ; 
 Arnold v. Jones, 26 Tex. 335. Contra, Baker v. Michigan R. R. Co., 42 111. 73 ; 
 Goddard v. Mullory, 52 Barb. 87 ; Baltimore Steamboat Co. v. Brown, 4 P. F. 
 Smith 77 ; Hedricks v. Steamship Morning Star, IS La. Ann. 353 ; Blade v. 
 Chicago Railroad Co., 10 Wis. 4. A statement contained in a receipted bill for 
 towing, delivered in advance to the owner of the vessel towed, that the towing 
 is " at the risk of the owner or master of the vessel towed," is a contract in 
 writing, within the rule which excludes parol evidence to contradict or vary its
 
 PAROL EVIDENCE TO EXPLAIN CONTRACTS. 703 
 
 *usage and understandino;, to be satisfied by a ioiuiii!:' of ^ „^„ 
 & o' J J o r*703T 
 
 convoy at the nearest usual place of rendezvous." '- -■ 
 
 So, where, upon the sale of a cargo, the vendor covenanted to pay 
 
 all duties, allowances, &c., to be taken out of them, he was permitted 
 
 " Letliullier'' s case, 2 Salk. 443. In Lilly v. Ewer, Dougl. 72, evidence of mer- 
 chants was received upon the question whether " sailing with convoy " meant 
 for the whole voyage or not. In Robertson v. French, 4 East 130, Lord Ellen- 
 borough observed, that the same rales which applied to all other instruments 
 applied also to a policy of insurance, that is, to be construed according to its 
 sense and meaning, as collected, in the first place, from the terms used in it, 
 which are to be understood in their plain, ordinary and popular sense, unless 
 they have generally in respect of the subject, as by the known usage of trade, 
 or the like, acquired a peculiar sense distinct from the popular sense of the 
 word : Salvador v. Hopkins, 3 Burr. 1707. 
 
 terms : Milton v. Hudson River Steamboat Co., 4 Lans. 76. For other cases in 
 which parol evidence is admissible, see Locke v. Rowell, 48 N. H. 46 ; Cany v. 
 Bright, 8 P. F. Smith 70 : Naile v. Peirce, 32 Md. 327 ; Pike v. Fay, 101 Mass, 
 134; Gray v. Ogler, 2 Bush 256 ; Cunningham v. Parks, 97 Mass. 172; Willis 
 V. Fernald, 33 N. J. (Law) 206 ; Hotchkiss v. Barnes, 34 Conn. 27 ; Hntchins v. 
 Hibbard, 34 N. Y. 24 ; Banaby v. Suaer, 18 La. Ann. 148. It is admissible to 
 show an independent collateral contract as inducement to or consideration for 
 the written instrument : Flanders v. Fay, 27 Ind. 72 ; Bonney v. Morrill, 57 
 Me. 368 ; Bussell v. Willard, 44 Vt. 44 ; Hubbell v. Ream, 31 Iowa 289 ; Lytle 
 v. Baj-r, 7 Cald. 303; Vanderkarr v. Thompson, 19 Mich. 82; Shepherd v. 
 Wysong, 3 W. Va. 46 ; Branch v. Wilson, 12 Fla. 543 ; Perry v. Central R. R. 
 Co., 5 Cald. 138. When a written contract for the sale of real estate is silent as 
 to the mode in which payment is to be made, parol evidence is admissible to 
 show how and in what payment was to be made, that being an independent col- 
 lateral fact : Paul v. Owings, 32 Md. 402. Parol evidence of an agreement in 
 regard to the application of a payment under a written agreement is admissi- 
 ble : Foster v. McGraw, 14 P. F. Smith 464; Wright v. Smith, 82 Mass. 499. 
 Grantee may disprove collateral facts recited in the grant not essential to the 
 validity of the conveyance : Ingersoll v. Truebody, 40 Cal. 603. Facts existing 
 at the time and circumstances attending the execution of a paper may be given 
 in evidence to explain it: Richards v. Schlegelmick, 65 N. C. 150; Foster v. 
 McGraw, 14 P. F. Smith 464. As between the parties liable upon a promis- 
 sory note or bill of exchange the form of the instrument is not conclusive, but 
 their actual relations may be shown by parol to be other than they appear to 
 be : Lacy v. Lofton, 26 Ind. 324. The rule that parol evidence is not admissi- 
 ble to contradict or vary written contracts or their legal effect does not apply 
 to cases arising between sureties : Thomas v. Truscott, 53 Barb. 200. Parol 
 evidence is admissible to show that the money expressed in a written contract 
 was Confederate money: Thorington v. Smith, 8 "Wall. 1, 12. Evidence is ad- 
 missible to show that the respective parties to a contract are interested in its 
 subject-matter in a different manner, capacity or extent, than is indicated on 
 the face of the contract, or to show who are the real principals in the transac- 
 tions to which the contract relates : Ellis v. Crawford, 39 Cal. 523.
 
 703 PROOFS. 
 
 to adduce proof of a custom, to show that such allowances were to 
 be limited'' to the price which he should receive. 
 
 Where it was stipulated in a charter-party that the captain should 
 receive a stipulated sum in lieu of privilege and jirimage^ and the 
 question was, whether the terms of the contract excluded all right 
 on the part of the captain to use the cabin for the carriage of goods 
 on his own account, Gibbs, C. J., said, evidence may be received to 
 show the sense in which the mercantile part of the nation use the 
 term 'privilege, just as you would look into a dictionary to ascertain 
 the meaning of a word ; and it must be taken to have been used by 
 the parties in its mercantile and established sense. '^ 
 
 *In the case of Cutter v. PoweZZ, where a promissory note 
 L ^' was given to a sailor, to be paid provided he served on board 
 the ship as second mate during the voyage, and he died before the 
 completion of the voyage, the court, deciding upon the terms of the 
 contract, held that his administrator was not entitled to recover pro 
 ratd for the time during which he served ; but it appears from the 
 language of the court in that case, that if a custom could have been 
 established that such notes were in general use, and that the commer- 
 cial world would have acted upon them in a different sense, they 
 would have decided differently."^ 
 
 It is to be observed, that it has been questioned by the highest au- 
 thorities, whether the practice of construing mercantile documents by 
 usage has not been carried too far. 
 
 In the case of Anderson v. Pitcher,^ Lord Eldon observed, "It is 
 
 P Baker v. Paine, 1 Ves. 459 ; Ibid. 317 ; see 6 Ves. 366, n. ; Ekins v. Mack- 
 lish, Amb. 186 ; Ford v. Hopkins, Salk. 283 ; Henkle v. Royal Exchange Assu- 
 rance Company, 1 Ves. 318 ; Thomas v. Frazer, 3 Ves. jun. 399 ; 10 Ves. 227. 
 
 ■1 Birch V. Dejyeyster, 1 Stark. C. (2 E. C. L. R.) 210. And note, that in that 
 case the same learned judge admitted evidence of a conversation between the 
 parties, to show in what sense they used the term. lie said, he thought such 
 evidence fell within the general current of mercantile understanding ; since, if 
 the term had been used in different trades in different ways, the conversation 
 was evidence to show in what sense it was used on that occasion. So, evidence 
 has been admitted for the purpose of showing the understanding of mariners in 
 geographical matters ; as, to show that the Mauritius is considered to be an East 
 India Island: Robertson v. Money, R. & M. (21 E. C. L. R.) 75; and the Gulf 
 of Finland a part of the Baltic Sea: Uhde v. Walters, 3 Camp. 16. 
 
 ' Cutter v. Powell, 6 T. R. 320. 
 
 ' 2 B. & P. 164. The question in that case was as to the meaning of a war- 
 ranty (contained in a policy) to depart with convoy ; and it was held that it 
 is not complied with, unless sailing instructions be obtained before the ship 
 leaves the place of rendezvous, if by due diligence they can be obtained. So,
 
 PAROL EVIDENCE TO EXPLAIN CONTRACTS. 70 i 
 
 now too late to say that this warranty (in a policy of insurance) is 
 
 not to be expounded with due regard to the usage of trade. Perhaps 
 
 it is to he 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.' 
 
 It is true, indeed, that Lord Mansfield, Avho may be considered the 
 
 establisher, if not the author, of great part of this law, expressed 
 
 himself thus, 'whenever *you render additional words neces- ^ „^^^ 
 
 . . . . r 7051 
 
 sary, and multiply them," you also multiply doubts and criti- L -■ 
 
 cisms.' Whether, however, it be not true, that as much subtlety is 
 raised by the applicjftion of usage to the construction of a contract, 
 as by the introduction of additional words, might, if the matter were 
 res Integra, be reasonably questioned." 
 
 The legitimate object of extrinsic evidence, in such cases, seems to 
 be to explain terms which are not intelligible to all who may under- 
 stand the language, but which may nevertheless have acquired, by 
 custom and usage, a known definite sense and meaning amongst a 
 particular class of persons, which can be well ascertained by means 
 of the testimony of those who are conversant with the peculiar use of 
 those terms. The witnesses for this purpose may be considered to 
 be the sworn interpreters of the mercantile language in which the 
 contract is written.'' Beyond this, however, *the principle 
 does not extend ; merchants are not prohibited from annex- L J 
 
 in the case of a bill of lading, &c., evidence was admitted to show what was 
 meant by days:" Cochran v. Eetberg, 3 Esp. C. 121. 
 
 * LethuUier^s case, 1 Salk. 443. 
 
 " Lilly V. Ewer, Doug. 72. 
 
 ^ Within this principle numerous cases have occurred, of which the following 
 may be cited in addition to those already referred to. Parol evidence has been 
 held admissible to show the meaning of the word "level" in a lease of coal 
 mines: Clayton v. Gregson, 5 Ad. & E. (31 E. C. L. R.) 302; in the provision 
 trade, of " mess pork of ;S. & Co. :" Powell v. Horton, 2 Bing. N. C. (29 E. C. 
 L. R.) 668 ; to show that, in the hop trade, " at 100s." in a sold note in these 
 words, "sold M. W. 18 pockets of Kent hops, at 100s.," meant 100s. per cwt., 
 and not per pocket: Sjncer v. Cooper, 1 Q. B: (41 E. C. L. R.) 424; that the 
 word London has a colloquial sense other than that of the City : Mallan v. May, 
 13 M. & W. 511 ; that, in the corn trade, "good barley" means a different 
 quality from "fine" barley: Hutchinson v. Bowker, 5 M. &W. 535; see Robert- 
 son V. Jackson, 2 C. B. (52 E. C. L. R.) 412, sripra ; that amongst sporting per- 
 sons a race " across a country" means straight without deviating through open 
 gates: Evans v. Pratt, 3 M. & G. (42 E. C. L. R.) 759 ; that a bale of cotton 
 may mean a bag in the Alexandria trade, although it means a compressed bale 
 in the Levant trade: Taijlor v. Briggs, 2 C. & P. (12 E. C. L. R.) 525. So, 
 upon a contract to pay at so much per ton for goods shipped at Bombay, cotton
 
 706 PROOFS. 
 
 ing what weight and value they please to words and tokens of their 
 own peculiar coinage, as may best suit their own purposes, but they 
 ought not to be permitted to alter and corrupt the sterling language 
 of the realm. If they use plain and ordinary terms and expressions, 
 to which an unequivocal meaning belongs, which is intelligible to all, 
 then, it seems, that according to the great principle so frequently 
 adverted to, that plain sense and meaning ought not to be altered by 
 evidence of a mercantile understanding and usage. It is clear, indeed, 
 that if a contrary practice were to prevail, and be carried to its full 
 extent, the effect would nearly be to render it impossible to make a 
 special contract in mercantile affairs, and to "Compel all persons, 
 under all circumstances, to conform to all the usages of trade; the 
 written contract would become a dead letter ; the question would not 
 be, what is the actual contract, but what is the usage; and the very 
 same terms would denote different contracts as often as mercantile 
 fashions varied. In short, the jus et norma loquendi, in a legal 
 sense, would become wholly dependent on the usages of trade.^ 
 Thus, parol evidence is inadmissible to explain the meaning of the 
 words "more or less" in a mercantile contract;^ and in unusual 
 contracts evidence that words or phrases have a peculiar meaning is 
 r*7n71 ^'^^ admissible.^ *So, where a man contracts in his own 
 name, evidence to excuse him from liability, on the ground 
 of a custom of trade in Liverpool to send in brokers' notes without 
 disclosing the principal's name, was rejected ; and Alderson, B., 
 said, "the custom offered to be proved is a custom to violate the 
 
 to be calculated at fifty cubic feet per ton, evidence may be given of a usai^e to 
 pay according to the measurement at Bombay : Bottomley v. Forbes^ 5 Bing. N. 
 C. (35 E. C. L. R.) 121. In like manner, parties have been permitted to recon- 
 cile apparent variances in bought and sold notes by the testimony of brokers : 
 Bold v. Rayner, 1 M. & W. 843. Where the captain of a ship had agreed to 
 convey a boat for the plaintiff of stated dimensions, evidence was admitted of 
 the practice to remove the decks of such boats when put on board : Haynes v. 
 HoUiday, 7 Bing. (20 E. C. L. R.) 587; and see Hood v. Feeve, 3 C. & P. (14 E. 
 C. L. R.) 532. In Chaurand v. Angerstein, Peake's C. 43, where it had been 
 represented to an insurer that the ship would sail from St. Domingo in October, 
 he was permitted to show in his defence that this was understood among the 
 merchants to mean between the 25th and the end of October ; and see other 
 instances, ante, p. 701, note («), and p. 653. The admission of such evidence 
 seems, however, to have been carried further than either principle or convenience 
 warrants. 
 
 y See Anderson v. Pitcher, 2 B. & P. 168. 
 
 ' Cross v. Er/Iin, 2 B. & Ad. (22 E. C. L. R.) 106. 
 
 * Lewis v. Marshall, 7 M. & G. (49 E. C. L. R.) 729.
 
 PAROL EVIDENCE TO EXPLAIN CONTRACTS. 707 
 
 common law of England."'' Where a merchant carried on business 
 as a tallow merchant abroad, through an agent who always used his 
 own name but was universally known to represent the merchant, and 
 the agent, after ceasing to represent him, made a contract on his 
 own account and in his own name as usual, the relation between him 
 and the merchant not being known to have been dissolved ; evidence 
 of a custom in the tallow trade to reject on such contracts the prin- 
 cipal, and to look to the broker for the fulfilment of the contract, 
 was held inadmissible.*^ And the existence of a custom in a district 
 to use certain terms in a peculiar sense does not raise a conclusion 
 of law that parties contracting in such a district used those terms in 
 such a sense, but is only evidence from which a jury may draw that 
 conclusion.*^ 
 
 Where a policy of insurance (in the common form) expressed "that 
 the insurance on the said ship shall continue until she is moored 
 twenty-four hours, and on the goods till safely landed," the Court of 
 King's Bench held that evidence of a usage, that the risk on the 
 goods as well as the ship expired in twenty-four hours,® was inadmis- 
 sible. 
 
 *Where the vendor of a quantity of bacon warranted it r*7nQ-i 
 to be of a particular quality, it was held that he could not 
 
 '^ Magee v. Atkinson, 2 M. & W. 440 ; Jones v. Littledale, 6 Ad. & E. (33 E. C. 
 L. R.) 486. 
 
 <= Trueman v. Loder, 11 Ad. & E. (39 E. C. L. R.) 589. 
 
 « Clmjton V. Gregson, 5 Ad. & E. (31 E. C. L. R.) 302. 
 
 ^ Parkinson v. Collier, Park on Ins. 74. The practice of construing mercantile 
 instruments according to the custom of trade was carried to a great length in 
 the case of Donaldson v. Forster, Sittings after Mich. Term, 29 Geo. III., Ab- 
 bott's Law of Shipp. 275, 8th ed. There, by the terms of the charter-party, it 
 was stipulated that the merchant should have the exclusive use of the ship out- 
 wards, and the exclusive privilege of the cabin, the master not being allowed to 
 take any passengers. Thfe defendants insisted that, under a charter-party so 
 worded, it was the constant usage of trade to allow the master to take out a few 
 articles for a private trade. Lord Kenyon admitted evidence to be given to 
 prove this usage, observing, that although prima facie the deed excluded this 
 privilege, yet he thought the deed might be explained by uniform and con- 
 stant usage, the usage being a tacit exception out of the deed. Notwith- 
 standing this high authority, sanctioned as it has, in some measure, been by its 
 adoption and insertion in the very learned work from which it is cited, some 
 doubt may perhaps still be entertained whether the receiving of such evidence 
 be strictly warranted in principle. It should be added that no verdict was given, 
 one of the jury insisting that as there was a positive contract the custom was 
 thereby excluded : see Sir D. Evans's remarks in his edition of Pothier, vol. ii. 
 p. 215.
 
 708 TROOFS. 
 
 give evidence of a custom in the trade, that the buyer was bound to 
 reject the contract if he was dissatisfied with it at the time of exam- 
 ining the commodity/ and Heath, J., who tried the cause, said that 
 it would breed endless confusion in the contracts of mankind if cus- 
 tom could avail in such a case. 
 
 So where words have a known legal meaning which belongs to 
 them, evidence is not admissible to show that the parties intended to 
 use them in a different sense according to the custom of the country.*^ 
 
 In some instances, also, where expressions of an ambiguous nature 
 have been employed, even in an instrument which the hiw, e. g., the 
 Statute of Frauds, requires to be in writing, parol evidence has been 
 admitted, not to vary the terms but to construe the instrument and 
 show what was really intended. Thus, where the words used to ex- 
 r*70Ql pi'^ss *the consideration of a guarantee were grammatically 
 ambiguous and consistent with its being past or future; for 
 instance, "in consideration of your having this day advanced to A. 
 B. ,£750,"^ which might mean in consideration "that you had then 
 
 f Yeats V. Pim, Holt's C. (3 E. C. L. R.) 95; 6 Taunt. (1 E. C. L. R.) 446 : 
 but see Byicater v. Richardson^ supra, p. 655, n. (c). 
 
 ^ Doe clem. Spicer v. Lea, 11 East 312 ; see per Parke, B., Sutton v. Temple, 
 12 M. & W. 63 ; see Custom. To what extent the silence of a mercantile con- 
 tract on a particular point may be supplied by evidence of the general course and 
 usage of trade is a question, which it would be difficult to answer with exactness 
 and precision : j>e?- Tindal, C. J., WhUtaker v. Mason, 2 Ring. N. C. (29 E. C. 
 L. R.) 369. 
 
 i- Goldshede v. Swan, 1 Ex. 154. In Haigli v. Brooks, 10 A. & E. (73 E. C. 
 L. R.) 309, a guarantee was in these words: " Mr. H., In consideration of your 
 being in advance to L. in the sum of £10,000 for the purchase of cotton, I do 
 hereby give you my guarantee for that amount on their behalf. /. 5." The 
 objection being that a past consideration alone was contemplated by the instru- 
 ment, the Court of Exchequer Chamber held, on writ of error, that there was 
 in this guarantee an ambiguity which might be explained by evidence. So in 
 Butcher v. Stewart, 11 M. & "VV. 875, where the words were " having released :" 
 and Edwards v. Jevons, 8 C. B. (65 E. C. L. R.) 436, where the words were 
 " giving credit." In Bainbridge v. Wade, 20 L. J., Q. B. 7, where the words 
 were " any sum or sums of money due to you from L., the amount not to exceed 
 at any time the sum of JCIOO," the court held that there was such an ambiguity 
 as might be explained by parol evidence of the circumstances of the parties 
 when the guarantee was given. So, whe];e in a contract to be paid at a certain 
 ratfi, if an estate were sold by auction; but at a less rate if it were not sold 
 within two months ; although four weeks is the primary meaning of the word 
 month, the judge may construe it to mean calendar months, if such appears to 
 be tlie intention of the parties from surrounding circumstances at the time of 
 making the contract: Simj)son v. Maryitson, 11 Q. B. (63 E. C. L. R.) 23 ; Col- 
 boitrn v. Dawson, 20 L. J., C. P. 154.
 
 PAROL EVIDENCE TO EXPLAIN WRITING. 709 
 
 actually advanced," or "that you shall have this day advanced," 
 evidence was admitted to show that the advance in fact was not a 
 past one, but was made at the same time as the guarantee was exe- 
 cuted. 
 
 Instances have also occurred in which cipher abbreviations,' or 
 other like known means, have been used in contracts or other instru- 
 ments ; in such cases parol evidence is necessarily admitted, for the 
 reasons already pointed out,'' to ascertain their meaning. Thus, 
 where in a bet on a match to run one greyhound against 
 another *the letters P. P. were added, parol evidence was ^ -J 
 admitted to show that they meant " play or pay."' 
 
 In many instances, too, evidence of custom and usage is admissible 
 for the purpose of annexing incidents to the terms of a written instru- 
 ment, concerning which the instrument is silent ; although, if any 
 condition or term in the contract is necessarily repugnant to or in- 
 consistent with the custom, the latter is excluded.™ The principle 
 upon which such evidence is admissible, seems to be a reasonable 
 presumption that the parties did not express the whole of their in- 
 tention, but meant to be guided by custom as to such particulars as 
 are generally known to be annexed by custom and usage to similar 
 dealings. It is evident that in commercial affairs, and all the other 
 usual and common transactions of life, it would be attended with 
 great inconvenience that the well-known ordinary practice and usage 
 on the subject should not be tacitly annexed, by virtue of such a 
 presumption, to the terras of a contract, and that the parties should 
 either be deprived of the certainty and advantage to be derived from 
 the known course of dealing, or be placed under the necessity of 
 laboriously specifying in their contracts by what particular usages 
 they meant to be bound. 
 
 It is unnecessary to allude to the numerous instances in which, 
 upon the same principle, the law itself annexes its own terms to a 
 contract. If a contract for the sale of goods be silent as to the time 
 of delivery, the law annexes the terra that they shall be delivered 
 within a reasonable tirae. A bill of exchange is payable at a certain 
 day ; but the law allows three additional days of grace, concerning 
 which the instrument is silent. The instance of a bill of exchange is 
 also a strong one to show how far custom operates to annex terms not 
 expressed in the instrument. 
 
 •" Goblet V. Beechey and others^ Executors of Kollel:ens^ 3 Sim. 24. 
 ^ Supra, p. 701. 
 Daintree v. Hutchinson, 10 M. & W. 85. 
 ■" Boon V. Whitney Union, 3 Bing. N. C. (32 E. C. L. R.) 814.
 
 710 , PROOFS. 
 
 ^ „^^_, It has been held that a tenant might avail himself of a 
 r 7111 . 
 
 L J *local custom to take an away-going crop after the expira- 
 tion of his term under a lease ; for the custom did not alter or contra- 
 dict the terms of the lease, but merely superadded a right conse- 
 quential to the taking." Where the stipulations in a lease as to the 
 mode of cultivation applied only to the holding during the tenancy, 
 but were wholly silent as to the terms of quitting : it was held that 
 an affirmative covenant, that the wheat lands should be summer-fal- 
 lowed, and an affirmative custom for the off-going tenant to have 
 one proportion of the wheat for a way-going crop, if sown after a 
 summer- fallow, and another proportion if sown after turnips, were 
 not so inconsistent that the tenant might not be entitled to his share 
 of wheat growing at the determination of the tenancy after a crop 
 of turnips, the landlord having a right of action, if the covenant had 
 not been observed." Upon the same principle, evidence was admitted 
 to show that a heriot was due on the death of the tenant for life, 
 although that duty was not expressed in the lease.'' So it has been 
 held that a custom for an away-going tenant to provide work and 
 labor, tillage and sowing, and all materials for the same, in his 
 away-going year, the landlord making him a reasonable compensation, 
 is not excluded by an express written agreement between the land- 
 lord and tenant, Avhich is consistent with such a custom. "^ 
 
 The presumption necessarily ceases where it can be collected, from 
 the terms of the instrument, that it was contrary to the intention of 
 r*7ion ^^^ contracting parties, in the *particular instance to be 
 guided by the custom : as where the parties have actually 
 expressed an intention different from the custom, for then according 
 to the general rule of law, expressum faeit cessare taciturn ; or even 
 where a contrary intention may be inferred from the terms of the 
 contract. Thus, where the lease specified certain payments to be 
 made by the in-coming to the out-going tenant at the time of quitting, 
 but specified no payment for foldage, it was held that this agreement 
 
 ° Wigcjlesivurth v. Dallison, Dougl. 201 ; and see the notes, 1 Smith, L. C, p. 
 299. 
 
 » Holding V. rigott, 7 Bing. (20 E. C. L. R.) 465. 
 
 P Per cur. White v. Sai/er, Pam. 211. 
 
 ^ Senior v. Armitage, Ilolt's C. (3 E. C. L. R.) 197 ; see Dalhy v. Hirst, 1 B. 
 & B. (5 E. C. L. R.) 224. A usaf^e for a landlord to compensate the off-going 
 tenant for tillinff, fallowing, and manuring aral)le and meadow land, according 
 to good husljandry, and from which the tenant can receive no benefit, is reason- 
 able, and is to be considered not as a custom but a usage, and need not be from 
 time immemorial: see Jioxburghe, Duke of, v. liobcrioii, 2 Bligh 156.
 
 PAROL EVIDENCE TO REBUT PRESUMPTION. 712 
 
 excluded the operation of a custom for the in-coming tenant to pay 
 to the out-going tenant an allowance for foldage/ 
 
 But a stipulation as to quitting does not exclude so much of a cus- 
 tom as is not inconsistent with such stipulation. Where a lease pro- 
 vided for the tenant's spreading more manure on the premises than 
 the custom required, leaving the rest to be paid for by tlie landlord 
 at the end of the term, and the custom was for the tenant to be paid 
 last year's ploughing and sowing, and to leave the manure, if the land- 
 lord would buy it, it was held that the tenant Avas still entitled to be paid 
 for the last year's sowing and ploughing, according to the custom.* 
 
 Parol evidence was admitted to show, that by the custom of the coun- 
 try the word "thousand," applied in a lease to rabbits, meant 1200.' 
 
 *It is a general rule, that oral and extrinsic evidence is r*"-,o-i 
 admissible to rebut a presumption of law or equity. Here 
 the evidence is not offered as a substitute for written evidence, but 
 to remove an impediment which would otherwise have obstructed or 
 altered its operation." Thus, it has been held that parol evidence is 
 admissible to show that a legacy was not intended in satisfaction of a 
 debt,'' or that the testator, although he gave the executor a legacy, 
 intended that he should have the surplus,^ or to rebut the equity of 
 
 ■■ Webb V. Plummer, 2 B. & Aid. 746 ; Roberts v. Barker, 1 C. & M. 808 ; 
 Hughes v. Gorden, 1 Bligh 287 ; Clinan v. Cooke, 1 Sch. & Lef. 22. 
 
 » Hutton V. Warren, 1 M. & W. 486 ; Holding v. rigott, 7 Bing. (20 E. C. L. 
 R.) 465. 
 
 ' Smith V. Wilson, 3 B. & Ad. (23 E. C. L. R.) 728. So, evidence of the usage 
 of London bankers receiving, from their correspondents (country bankers), a 
 power of attorney to sell stock of a customer of the latter, may be given to show 
 that all moneys so received are placed to the credit of the country banker : 
 Adams v. Peters, 2 C. & K. (61 E. C. L. R.) 723 ; of trades in the potteries, that 
 workmen under a contract to work for a whole year should have certain holidays 
 and the Sundays to themselves : E. v. Stoke-upon-Trent, 5 Q. B. (48 E. C. L. R.) 
 303. So, a usage, where goods are sold by sample, of a custom to make an allow- 
 ance for such as do not answer the sample, was admitted by Cresswell, J. : Cooke 
 v. Riddelien, 1 C. & K. (47 E. C. L. R.) 561. And a usage in the tobacco trade 
 may be proved to show that all sales are by sample, although that term be not 
 expressed in the bought and sold notes : Si/ers v. Jonas, 2 Ex. Ill ; and see Fur- 
 ley V. Wood, 1 Esp. 198 ; Doe v. Benson, 4 B. & Aid. (6 E. C. L. R.) 588 ; and 
 Smith V. Walton, 8 Bing. (21 E. C. L. R.) 235. 
 
 " 2 Atk. 69, 99 ; Amb. 126 ; 2 Vern. 252. 
 
 ^ Cuthbert v. Peacock, 2 Vern. 593. But see Foivler v. Foicler, 3 P. Wms. 
 353 ; where an allowance of pin-money being in arrear to the wife for two years, 
 Talbot, C, would not admit evidence to show the intention of the testator that 
 she should have a legacy of £500 in addition to the arrears. 
 
 y 2 Vern. 252, 648, 673 ; Wingjield v. Atkinson, 2 Vern. 673 ; 2 P. Wms. 158 ; 
 42
 
 713 PROOFS. 
 
 an heir at law.^ So, where the conusor of a fine dies before the uses 
 
 r*714T ^^® dechired, the presumption *that the fine was levied to 
 
 the use of the conusor may be rebutted by evidence.* 
 
 If a tenant for life pays off a charge on the estate, primd facie, he 
 is entitled to that charge for his own benefit, with the qualification 
 of having no interest during his life. If a tenant in tail or in fee- 
 simple pays off a charge, that payment is primd facie, presumed to 
 be made in favor of the estate; but the presumption may be rebutted 
 by evidence, as by calling for an assignment, or by a declaration.** 
 
 So, oral evidence has been admitted by courts of equity to show 
 that a portion advanced to a child subsequent to the making of a 
 will, and of the same amount with the legacy, was not intended as an 
 ademption of a legacy ;" and for this purpose, and to show the real 
 intention, even oral declarations are admissible."^ 
 
 9 Mod. 9; 1 Str. 568. So, where the wife was executrix, and real and personal 
 property were left to her by her husband : Lahe v. Lake, 1 AVils. 313 : Amb. 126, 
 2yer Buller, J. ; Dougl. 40. Evidence is admissible to show that onQ prima facie 
 a trustee, takes for his own benefit : Langfield clem Banton v. Hodges, Lofft. 
 230 ; Doe v. Langton, 2 B. & Ad. (22 E. C. L. R.) 680. The gift of a legacy in 
 reversion to an executor does not necessarily exclude, but only raises a presump- 
 tion against his taking the residue beneficially, and if there is no express decla- 
 ration that he is to be a trustee, but only circumstances raising a presumption, 
 parol evidence is admissible to rebut it : Oldmaii v. Slater, 3 Sim. 84. Where a 
 specific bequest was given in the will to the executor for his care and trouble, 
 held that it excluded him from taking the residue beneficially, and that parol 
 evidence of the testator's declarations, after the making of the will, were inad- 
 missible : Whitaker v. Tatham, 7 Bing. (20 E. C. L. R.) 628 ; and see Foster v. 
 Munt, 1 Vern. 473 ; and Gibhs v. Rumsey, 2 V. & B. 294. 
 
 ^ Mallabar v. Mallahar, Cas. temp. Talb. 79 ; -Jarman on Wills, c. 13. 
 
 * Roe v. Popham, Dougl. 25 ; Lord Altham v. Lord Anglesea, Gilb. Eq. R. 16. 
 
 ^ Rer Lord Eldon, in The Earl of Buckinghamshire v. Hobart, 3 SAvanst. 186. 
 Where a tenant for life of a settled estate purchased encumbrances and had 
 them assigned to a trustee, and purchased the remainder and had it conveyed, 
 subject to existing charges, and devised the estate subject to the charges so 
 purchased, it was held that parol evidence was admissible to show that the 
 charges were merged: Astleij v. Mills, 1 Sim. 298. 
 
 « Debeze v. Man, 2 Bro. C. C. 165 ; Coote v. Botjd, 2 Bro. C. 521. Or, as it 
 seems, to show that such advancement was intended as an ademption: Rosewell 
 v. Bennett, 3 Atk. 77. But note, that the intention of the legacy was specified 
 in the will ; and the case was not decided on that ground ; see also Ilooley v. 
 llatton, ] Bro. C. C, 390, n. Where portions are provided by any means what- 
 ever, and the parent gives a provision by will for a portion, it is a satisfaction 
 prima facie, unless there be circumstances to show that it was not so intended: 
 per Lord Alvanley, Uinchcliffe v. Hinchcliffe, 3 Ves. jun. 516; per Lord Eldon, 
 in Pole v. Lord Somers, 6 Ves. 325. The question there was as to satisfaction. 
 
 •^ Ellixon v. C'ookson, 1 Ves. jun. 100; Clinton v. Hooper, 1 Ves. jun. 173.
 
 PAROL EVIDENCE TO REBUT PRESUMPTION. 714 
 
 In the case, even of a devise of lands, it was formerly held that 
 the legal implication, as to the revocation of the will, 
 *founded upon the subsequent marriage of the testator, and L ^J 
 birth of a child, might be rebutted bj parol evidence." Lord Mans- 
 field observed, "I am clear that this presumption, like all others, 
 may be rebutted by every sort of evidence. There is a technical 
 phrase for it in the case of executors ;^ it is called rebutting an equity." 
 But it has since been settled, that under these circumstances the will is 
 revoked by a rule of law independently of the intention of the party, 
 and consequently that all evidence of such intention is inadmissible.^ 
 
 But although such evidence be admissible to rebut a *pre- 
 sumption arising from the operation of matter in pais as to L ' ■'^"J 
 the mtention of the party to revoke, it is otherwise where the revo- 
 cation is by act of law, where the law pronounces upon a presump- 
 
 But those made at the time of the will are the most important : Trimmer v. 
 Bayne, 7 Ves. 508. 
 
 * Brady v. Cubitt, Dougl. 30. See the observations on this case in Goodtitle 
 V. Otway, 2 11. B. 516. For the cases in which an alteration in circumstances 
 amounted to an implied revocation of a will, see Bac. Ab., tit. Wills and Testa- 
 ments ; Brown v. Thomjyson, 1 P. Wms. 304 ; Ljigg v. Lugg, 1 Ld. Eaym, 441 ; 
 Shepherd v. Shepherd, Dougl. 31, n. Sir D. Evans observes, that "the allowin<T 
 of a written instrument to derive a construction different from that which it 
 would naturally import, in consequence, not of any relative character of the 
 subject matter, but of verbal declarations, cannot, on principle, be reconciled 
 with the general tenor of our jurisprudence." It is impossible not to regret, 
 in common with that learned writer, that in any branch of cases, particularly 
 one so important as the present, the uncertainty and vagueness of oral testimony 
 of the very weakest and loosest description should have been substituted for 
 the certainty of a written document. It was in effect to give to oral evidence a 
 greater authority than the written evidence, to subject solemn and authentic 
 written instruments to all the laxity and uncertainty of parol evidence, and to 
 render titles to property hazai-dous and precarious. Hence, by 7 Will. IV. and 
 1 Vict. c. 26, no will made after 1st January 1838, is revoked by any presump- 
 tion of intention on the ground of an alteration in circumstances, save marriage : 
 ss. 18, 19. See tit. Wills. 
 
 f An executor is not excluded from proof of the testators intention that he 
 should take the surplus, by the circumstances of his taking a reversionary con- 
 tingent interest: Lyn7i v. Beaver, 1 Turn. 63. Such evidence, however, is 
 admissible only for the purpose of supporting the apparent effect of an instru- 
 ment ; it is inadmissible to show that a legacy in a second will was intended 
 as an ademption of a legacy given by a former will : Hurst v. Beach, 5 
 Madd. 360. 
 
 « Marston v. Roe dem. Fox, 8 Ad. & E. (35 E. C. L. R.) 14 ; in Cam. Seacc. ; 
 and Stat. 7 Will. IV. and 1 Vict. c. 26, s. 18, supra, note (e).
 
 716 PROOFS. 
 
 tion juris et de jure^ that is, where the presumption of hiw is so 
 violent that it does not admit circumstances to be set up to repel it.' 
 Thus, where a testator devised his lands to B.^ and afterwards, upon 
 his marriage, conveyed them by lease and release to trustees, to other 
 uses, with the usual limitations in marriage settlements, the court, on 
 a trial at bar, refused to hear parol evidence to show that the devisor 
 meant that his will should remain in force.'^ 
 
 III. As original and i7idependent evidence. — Having thus seen 
 how far parol evidence is admissible to contradict, vary, or wholly 
 subvert a written instrument, as also, on the other hand, to establish, 
 explain, and support written evidence, it remains, in the third place, 
 to consider in what cases parol extrinsic evidence is admissible to 
 prove a fact by virtue of its own weight and authority, notwith- 
 standing the casual existence or use of collateral written evidence to 
 prove or disprove the same fact.^ What has been already said 
 supplies, indeed, a sufficient test ; for it seems that, in general, the 
 mere circumstance that a written instrument exists which may be 
 made evidence of a particular transaction, does not exclude oral 
 testimony either to prove or disprove the fact, unless that written 
 instrument be by law constituted the authentic and sole medium 
 ^^r'^rjn of proving that fact.' The importance of the subject, *how- 
 ever, renders it desirable further to consider, 1st, in what 
 instances written instruments are of an exclusive nature ; 2dly, 
 with respect to what J9ar^«(?s and to what facts. 
 
 In the first place, written evidence has an exclusive operation in 
 
 •" See Marston v. Roe dem. Fox, and tit. Presumption, post. 
 
 * See 2 H. Bl. 522. 
 
 ^ GoodtUle V. Otwai/, 2 H. B. 516. 
 
 1 See Grey v. Smithy es, Burr 2273, and infra. Still less does the existence of 
 a deed or other written instrument exclude parol evidence as to a collateral 
 transaction : Fletcher v. Gillespie, 3 Bing. (11 E. C. L. R.) 635. So, in the case 
 of a parol agreement to do repairs, in consideration that the plaintiff would be- 
 come tenant to the defendant: Seago v. Deane, 4 Bing. (13 E. C. L. R.) 459. 
 So, where the parties to an indenture of charter-party afterwards agreed by parol 
 for the use of the ship, ad interim : White v. Parkins, 12 East 578, supra, p. 656, 
 657, note (d). 
 
 ^ The existence of a paper may be proved by parol as a fact, in all cases where 
 its contents arc not material to the riglits of the parties or where the party prov- 
 ing it does not seek to avail himself of its contents as proof of any fact stated 
 in it, or of an obligation created or discharged by it : Gilbert v. Duncan, 5 Dutch. 
 133 ; Duncan v. Gilbert, Ibid. 521 ; Cramer v. Shriner, 18 Md. 140 ; Silsbti7-y v. 
 Blamb, 26 111. 287.
 
 WRITTEN, NOT EXCLUDE PAROL EVIDENCE. 717 
 
 many instances, by virtue of peremptory legislative enactments.™ 
 So it has in all cases of written contracts." 
 
 So, also, in all cases where the acts of a court of justice are the 
 subject of evidence. Courts of record speak by means of their 
 records only; and even where the transactions of courts which are 
 not, technically speaking, of record, are to be proved, if such courts 
 preserve written memorials of their proceedings, those memorials 
 are the only authentic means of proof which the law recognizes." 
 And it seems that, in general, where the law authorizes any person 
 to make an inquiry of a judicial nature, and to register the pro- 
 ceedings, the written instrumenf" so constructed is the only legiti- 
 mate medium to prove the result. 
 
 Thus, as has been seen, parol evidence cannot be received of the 
 declaration of a prisoner taken before a magistrate where the ex- 
 amination has, as required by the statute, been taken in writing.'' 
 So, the official return *of the sheriff to a writ of execution p^r--. o-i 
 is usually conclusive as between the litigating parties, although 
 not as between them and himself.'^ 
 
 But, in general, public and authorized documents, whether ap- 
 pointed by express authority of law, or recognized by the law as in- 
 struments of authority, if they be but collateral memorials of the 
 fact, possess no exclusive authority as instruments of evidence. 
 Thus, although the entry of a marriage in the parish registry, made 
 
 ™ Tit. Frauds, Statute of, and Wills. 
 
 ° Supra ; and tit. Assumpsit. 
 
 ° Vide tit. Judgment, Insolvent. In Bledstyn v. Sedgwick, Ann. 304, the 
 court refused to hear parol evidence of the condemnation of a ship in Carolina, 
 a copy of the condemnation Avhich had been given to the captain having been 
 lost at sea. 
 
 p See tit. Judgment. 
 
 ■J i?. V. Lambe, supra, 2 Leach 559 ; E. v. Jacobs, lb. 310 ; and see the eases, 
 2 Russ. by Greaves 876, et seq. So, additional statements made by a prisoner 
 before a magistrate, and not contained in the written examination, may be proved 
 by parol : Venafra v. Johnson, 1 M. & Rob. 316. What a prisoner says before 
 he may know the charge against him is admissible ; interlineations and erasures 
 in a confession are cured by the attestation ; and that it is no objection that it 
 is said to be signed, where the party was a marksman ; and a voluntary confes- 
 sion, taken before the conclusion of the evidence against the prisoner, may be 
 given in evidence on the parol statement of the clerk, refreshing his memory by 
 the paper: R. v. Bell, 5 C. & P. (24 E. C. L. R.) 162; questioning, R. v. Fagg, 
 4 C. & P. (19 E. C. L. R.) 566 ; Jeans v. Wheedon, 2 M. & Rob. 486. But parol 
 evidence may be given of the same declarations made by the prisoner at other 
 times : WCarthi/s case, M'Nally on Ev. 45. 
 
 ' Gijfford V. Woodgate, 11 East 297.
 
 718 PROOFS. 
 
 according to the Marriage Act, be evidence of the marriage, it does 
 not exclude the parol evidence of any witness who can prove the fact 
 of marriage. So, although public printed proclamations of govern- 
 ment, gazettes, public books, official returns, and other' documents of 
 authority, are admissible in evidence to prove particular facts, they 
 do not exclude parol evidence. The principle applies in general, as 
 it seems, where the document contains a mere subsequent memorial 
 and recognition of the fact. 
 
 A receipt for money, it has been held, is not conclusive evidence 
 against the person who gives it, that he has actually received the 
 money.' Thus, upon the failure of an annuity deed for want of a 
 memorial, upon an action brought by the plaintiff against the two 
 grantors, to recover the consideration paid, one of the defendants, 
 who was a surety only, was permitted to show, notwithstanding his 
 having signed a receipt for the money, jointly with the 
 *- -^ *other defendant, the principal, that he had never in fact 
 received the money." ^ 
 
 ' Tit. Written Evidence. 
 
 * And may therefore be explained or contradicted by parol : Graves v. Key, 3 
 B. & Ad. (23 E. C. L. R.) 318. So, a receipt in full of all demands ; but see 
 Alner v. George, 1 Camp. 392, and Barmston v. Robins, 4 Bing. (13 E. C. L. 
 R.) 11. 
 
 " Stratton v. Rastall and another, 2 T. R. 366 ; and see The Attorney-General 
 V. Randall and others, 2 Eq. C. Abr. 742 -, where although a receipt had been 
 signed by three trustees, the Lord Chancellor decreed that only the one who had 
 received the money should be answerabfe for it ; but see Rowntree v. Jacob, 2 
 Taunt. 141 ; also, 1 Sid. 44 ; 1 Lev. 43 ; Co. Litt. by Harg. and Butler 373 ; 
 Latour v. Bland, 2 Stark. C. (3 E. C. L. R.) 382. 
 
 ^ Parol evidence is admissible to explain or even contradict receipts : Johnson 
 v. Weed, 9 Johns. 310; Badger v. Jones, 12 Pick. 371 ; Baugh v. Brassfield, 5 J. 
 J. Marsh. 79 ; Southwick v. Hayden, 7 Cow. 334 ; Giddings v. Munson, 4 Vt. 
 308 ; Whitbeck v, Whitbeck, 9 Cow. 266 ; Brooks v. White, 2 Mete. 283 ; mim- 
 phries v. McGrmv, 5 Pike 61 ; Jo7ies v. Patterson, 1 W. & S. 321; Pettus y. 
 Roberts, 6 Ala. 811 ; Huston v. Becknell, 4 Mo. 39 ; Wayland v. Moseley, 5 Ala. 
 430; Jones v. Ward, 10 Yerg. 160; Behee v. Moore, 3 McLean 387; Hogan v. 
 Reynolds, 8 Ala. 59 ; Steamboat Missouri v. Webb, 9 Mo. 193 ; McKeagg v. Cal- 
 lahan, 13 Ala. 828 ; Elston v. Kennicott, 52 111. 272; Hammond v. Hannin, 21 
 Mich. 374 ; Stackely v. Pierce, 28 Tex. 328 ; Dunagan v. Dunagan, 38 Ga. 554 ; 
 Winchester v. Grosvenor, 44 111. 426 ; Dunn v. Piper, 20 La. Ann. 276 ; Carr v. 
 Miner, 42 111. 179 ; Rand v. Scojield, 43 Ibid. 167 ; Elston v. Kennicott, 46 Ibid. 
 187 ; Burwell v. Pioneer, 37 N. Y. 312 ; Colburn v. Lansing, 46 Barb. 37 ; Elder 
 V. Ho(jd, 39 111. 533 ; James v. Bleigh, 11 Allen 4; Illinois Ins. Co. v. Wulf, 37 
 111. 354. Book entries are not contracts, but memoranda ; and are not conclu- 
 sive as evidence but are subject to explanation : Swift v. Pierce, 13 Allen 136. 
 
 The taking of a receipt on payment of money does not preclude proof of such
 
 PAROL EVIDENCE — RECEIPT — CONFESSION. 719 
 
 In the case of Wilson v. PouUer, which is very briefly reported,'' 
 it is stated merely that a defendant in trover was charged with his 
 
 =^ Str. 794. In Rniolmul v. Ashhy, Ry. & M. (21 E. C. L. R.) 231 ; it was held 
 that admissions made by a party on his examination before commissioners of 
 bankrupts, and which were material, though not contained in the written exami- 
 nation, might be proved ; and see Venafra v. Johnson, supra, p. 717, n. [q). 
 
 payment by other evidence : Berry v. Berry, 2 Harris. 440. The rule that parol 
 evidence is inadmissible to vary the terms of a written instrument, does not 
 apply to a writing which is merely evidence of a fact, and not of a contract or 
 right: McCrea v. Purmort, 16 Wend. 460. Parol evidence may be given of the 
 payment of money or delivery of goods notwithstanding a receipt has been 
 given: Wiggins v. Pryor, 3 Port. 630; Dana v. Boyd, 2 J. J. Marsh. 587- 
 Parol evidence is admissible to explain receipts: Hawley v. Bader, 15 Cal. 44. 
 A receipt for the payment of money containing an agreement, condition or stipu- 
 lation between the parties, is in the nature of a contract, and is not liable to be 
 varied by parol: Senceshox v. McGrude, 6 Minn. 484. A writing that is both a 
 receipt and a memorandum of agreement is conclusive as to the agreement, but 
 the receipt of the property, although that be the subject-matter of the agreement, 
 may be disproved : Dale v. Evans, 14 Ind. 288 ; The Tuskar, Sprague 71 ; Sut- 
 ton V. Kettell, Ibid. 309. 
 
 So the recital in a deed of the payment of the consideration money may be 
 contradicted or explained : Shepherd v. Little, 14 Johns. 210 ; Morn v. Shattuck, 
 4 N. H. 229 ; Wilkinson v. Scott, 17 Mass. 249 ; Straicbridge v. Cartledge, 7 W. 
 & S. 394 ; Mead v. Steger, 5 Port. 498 ; Burbank v. Gould, 3 Shepl. 118 ; Saun- 
 ders V. Uendrix, 5 Ala. 224 ; Clapp v. Tirrell, 20 Pick. 247 ; Lirgun v. Hender- 
 son, 1 Bland. 236 ; Deloach v. Turner, 6 Rich. 117. The true consideration of 
 a deed may be shown by parol : Morris Canal and Banking Co. v. Eyerson, 3 
 Dutch. 457; Holbrook v. Holbrook, 30 Vt. 432 ; Henry v. Henry, 11 Ind. 236; 
 Galivay''s Appeal, 10 Cas. 242 ; Clinton v. Estes, 20 Ark. 216 ; Gordon v. Gor- 
 don, 1 Mete. (Ky.) 285; Reynolds v. Vilas, 8 Wis. 471 ; Andrews v. Andrews, 
 12 Ind. 348 ; Jones v. Jones, Ibid. 389 ; Ibrey v. Vanderhoqf, 15 Wis. 397 ; Law- 
 ton V. Buckingham, 15 Iowa 22 ; Eby v, Wolcott, 4 Allen 506 ; Kamler v. Fergu- 
 son, 7 Minn. 442; Speer v. Speer, 1 McCar. 240 ; Buckley's Appeal, 12 Wright 
 491 ; Gibson v. Fifer, 21 Tex. 260 ; Rabsuhl v. Lack, 35 Mo. 316 ; McMahan v. 
 Stewart, 23 Ind. 590 ; Miller v. Goodwin, 8 Gray 542 ; Paget v. Cook, 1 Allen 
 522; Landman \. Ingram, A9 Mo. 212; Pierce v. Brew, 4S Vt. 292; Booth y. 
 Hynes, 54 111. 363 ; Medvidck v. Meyer, 46 Mo. 600 ; Boyce v. Wilson, 32 Md. 
 122 ; Balton v. Jacks, 6 Rob. 166 ; Whitaker v. Garnett, 3 Bush 402 ; Bassett v. 
 Bassett, 55 Me. 127 ; Bowser v. Craviner, 6 P. F. Smith 132; Lewis v. Brew- 
 ster, 7 Ibid. 410; Pope v. Chafee, 14 Rich. (Eq.) 69 ; Coioan v. Cooper, 41 Ala. 
 187; Rhine w. Ellen, 36 Cal. 362; Perry v. Central R. R. Co., 5 Cald. 138; 
 Pnriaton v. Northern III. R. R. Co., 46 111. 297 ; Bell v. Utley, 17 Mich. 508 ; 
 Pullman v. Ilatley, 24 Iowa 425 ; Hildreth v. O'Brien, 10 Allen 104 ; Stackpole 
 V. Bobbins, 47 Barb. 212; Peck v. Vandenburg, 30 Cal. 11 ; Hendrick v. Crow- 
 ley, 31 Ibid. 471 ; Patterson v. Fowler, 22 Ark. 396 ; Finn v. Hempstead. 24 Ibid. 
 Ill ; Walcott V. Ronalds, 2 Rob. 617 ; Wheeler v. Billings, 38 N. Y. 263 ; Ros- 
 bou V. Peck, 48 Barb. 92 ; Cunningham v. Dwyer, 23 Md. 219 ; Engleman v.
 
 719 PROOFS. 
 
 confession taken before commissioners of bankrupts, and that the 
 Chief Justice refused to let the defendant explain it by parol evi- 
 dence. It is not stated in what way the defendant proposed to ex- 
 plain the document ; and it would not be safe to rely much on so very 
 loose a report. 
 
 In the common case of a confession taken before a magistrate, on 
 a charge of felony, the practice is for the prosecutor to prove by evi- 
 dence that the written document produced is a faithful account of the 
 prisoner's statement ; upon principle, therefore, it scarcely admits of 
 doubt that the prisoner is at liberty to meet such evidence by con- 
 trary testimony, and to show that the written instrument is inaccu- 
 rate. The statutes^ which authorize the magistrate to take the exami- 
 nation of prisoners, do not give them an exclusive force ; and their 
 admissibility and operation as evidence seem to stand upon the same 
 footing with any other admissions at common law, which, in such in- 
 stances, are usually inconclusive.'' And it seems that, in general, 
 where a document, such as a letter, not being matter of compact and 
 agreement, is given in evidence as *an admission by the 
 •- " -^ adversary, the latter may adduce evidence to show that it 
 originated in mistake, or to explain it by circumstances.'* 
 
 In an action brought by bankers to recover back money paid on a 
 check purporting to be drawn by the defendant, but alleged to be a 
 forgery, and which was the fact in issue, it was held, that minutes of 
 the defendant's examination on a charge made against a party as 
 having forged a check, were receivable, although he afterwards signed 
 the regular deposition.'' 
 
 y 7 Geo. IV. c. 64 ; 11 & 12 Vict. c. 42 ; and see tit. Admissions. 
 ' Tit. Admissions. 
 
 » Tit. Admissions ; and see Holsten v. Jumpson, 4 Esp. C. 189 ; Macheath v. 
 Haldimand, 1 T. R. 182. 
 *• Williams v. Woodward, 4 C. & P. (19 E. C. L. R.) 346. 
 
 Craig, 2 Bush, 424 -, Vail v. McMillan, 17 Ohio St. 617 ; Driirt/ v. Tremont Co., 
 13 Allen 168. A party may show by evidence dehors an instrument in writing 
 what was the time of its execution, explain and make certain its indefinite stipu- 
 lations, and the consideration of it : Perry v. Smith, 34 Tex. 277 ; Field v. Mun- 
 son, 47 N. Y. 221 ; Ins. Co. v. Thorp, 22 Mich. 146; Robinson v. United States, 
 13 Wall. 363; Willmering v. McGaitghey, 30 Iowa 205 ; Goodrich v. Stevens, 5 
 Lans. 230. The true date of a deed is the time of delivery, and may be shown 
 by purol, though a diilercnt date is upon the paper: Jiassellv. Carr, 3S Ga. 
 459. 
 
 A recital of the consideration in a deed is prima facie evidence in an action 
 a;!;aiii.st the grantor in a suit for breach of covenant ; but it is evidence of the 
 slightest kind : Mowrey v. Vandliny, 9 Mich. 39.
 
 PAROL EVIDENCE — INDEPENDENT FORCE. 720 
 
 2dlj. Next, with respect to the 'parties, and the particular facts 
 which the instrument recites. The instrument offered in evidence, 
 whether record, deed, or simple contract, is offered either as between 
 the same parties, or where either one or both are different. Even 
 where both parties are the same, it frequently happens that the 
 instrument will not operate as an estopj^el, unless it be specially 
 pleaded as such f and if it has not been so pleaded, parol evidence 
 of the fact is usually admissible in contradiction of the written instru- 
 ment. 
 
 In the next place, even where a record or deed exists, which is 
 conclusive upon the parties, it is not always conclusive upon all p)oints. 
 
 Thus, evidence is admissible to prove that a deed was executed, or 
 a bill of exchange made, at a time different from that of the date,** or 
 that a party in whose name a *contract for the sale of goods 
 was made was the agent of another.® For the same reason, ^ "'J 
 a dormant partner may be charged on a contract made by the osten- 
 
 ° Tit. Estoppel. 
 
 ^ The plaintiff may declare on a bond bearing date on one day, and prove a 
 delivery on another day {Goddard's case, 2 Rep. 4, b.), or allege a deed to have 
 been delivered on a day different from that on which it bears date : Hall v. 
 Cazenove, 4 East 477 ; Stone v. Bale, 3 Lev. 348 ; Styles v. Wardle, 4 B. & C. 
 (10 E. C. L. E.) 908. Parol evidence is admissible to show that land described 
 in a deed as meadow was not meadow, for it is not the essence of the deed, but 
 mere matter of description : Skipicith v. Green, Str. 610. Or that land de- 
 scribed as containing five hundred acres does not contain so many ; s. c. Bac. 
 Ab., Pleas, (I. 11). Where a deed contains a generality to be done, as to per- 
 form all agreements set down by A., 1 Rol. 872, P. ; to carry away all the marl 
 in close B. : Ibid. ; to release all his right in C. : Ibid. ; 2 Cowp. 600 ; he is not 
 estopped from denying such agreements, &c. : Com. Dig., Estoppel, A. 2. A 
 latitat alleged to have been issued on a particular day after term, may be 
 proved to have been so issued, though tested of the preceding term : Walburgh 
 Saltonstall, Vent. 362. If a written acknowledgment to take a case out of the 
 Statute of Limitations have no date, parol evidence may be given to prove 
 when it was written : Edmunds v. Downes, 2 C. & M. 459. So, in the case of a 
 ratification of a contract entered into in infancy: Hartley v. Wharto7i, 11 A. & 
 E. (39 E. C. L. R.) 934; and of a written promise made after bankruptcy to 
 pay a debt barred by certificate : Lobb v. Stanley, 5 Q. B. (48 E. C. L. R.) 574. 
 
 « JVilson V. Hart, 7 Taunt. (2 E. C. L. R.) 295. That is for the purpose of 
 charging the principal, not of discharging the agent : see Higgins v. Senior, 8 
 M. & W. 834, supra, p. 665. So a purchaser of land, having made the pur- 
 chase in the name of another, may show that he (the purchaser) paid for it, in 
 order to raise a resulting trust: 2 Vern. 366. Where parol evidence was 
 offered (to raise an equity) that a pension granted by the Crown absolutely was 
 in trust for the plaintiff, which the defendant, by his answer, denied, the evi- 
 dence was rejected by Lord Thurlow : Fordyce v. Willis, 3 Bro. C. C. 577.
 
 721 PROOFS. 
 
 sible partner in their own names/ And even in the case of records, 
 which are conclusive as far as regards their substance, averments and 
 proofs may be received to contradict them as to time and place and 
 many other particulars.^ 
 
 The reason is, that in the case of the record, the points of variance 
 would not have been considered to be material at the trial, and there- 
 fore the evidence does not in eifect contradict the record ; and that in 
 the case of deeds or other agreements it was not the intention of the 
 contracting parties to bind themselves precisely as to such particulars, 
 such instruments being, for the sake of convenience, frequently 
 executed on days diiFerent from those on which they bear date, and 
 r*7ooi commercial agreements being as frequently *made on behalf 
 '- "^ -' of a principal in the name of an agent. ^ 
 
 The parties to a written agreement are not, in general, precluded 
 from proving facts consistent with the agreement, although not ex- 
 pressed in it. Where the written agreement was, that Maxwell 
 should purchase of Sharp .£2000 stock, it was held that the plaintiff, 
 3Iaxwell, might give in evidence a parol agreement to buy X2000 
 stock (which belonged to Sharp and Abbott, but stood in the name of 
 Sharp) of Sharp and Abbott, the parol being consistent with the 
 written agreement.' 
 
 And as between the parties to a deed, or those who claim in privity, 
 evidence is admissible to show the purpose and intention of executing 
 the instrument,^ provided it be perfectly consistent with the legal 
 operation of the instrument, and not inconsistent with its express 
 
 ^Beckham v. Brake, 9 M. & W. 79 ; 11 M. & W. 315. 
 
 * See Stark. Crim. Pleading, 2d edit. 325 ; and tit. Judicial Instruments. 
 ^ Tit. Agent ; tit. Partners ; and tit. Vendor and Vendee. 
 
 * Maxwell v. Sharp, Say. 187. Where one partner deposited his own deeds 
 under a written memorandum " as a security in the dealings which the party 
 had with him," held, that evidence to show that the dealings alluded to were 
 partnership transactions, was admissible, and established the lien for payments 
 made on behalf of the firm : Chuck v. Freen, M. & M. (22 E. C. L. R.) 259 ; s. 
 c, contra, 2 Glyn. & J. 246 ; see Turner v. Deane, 3 Ex. 837. So, a release re- 
 citing that disputes subsisted between A. and B., and that it had been agreed 
 that to put an end to them B. should pay A. money, and each should execute a 
 release to the other, and the release given was of all actions whatever, and A. 
 afterwards sued B. and C. for a joint cause of action, parol evidence was ad- 
 mitted that there were mutual actions between A. and B. other than that of A. 
 against B. and C. : Simons v. Johnson, 3 B. & Ad. (23 E. C. L. R.) 175. 
 
 ' Proof that an agreement offered in evidence against its signers was to be 
 held in the nature of an escrow is admissible : Beall v. Poole, 27 Md. 645.
 
 PAROL EVIDENCE — INDEPENDENT FORCE. 722 
 
 terms. Thus, in the case of Mllhourn v. Ewart and others,^ -where 
 a man, in contemplation of marriage, executed a bond to his intended 
 wife (the plaintiff,) conditioned for the payment of money by the 
 heirs or executors of the obligor to the plaintiff, at the expiration of 
 twelve calendar months from and after the death of the obligor, and 
 to an action on the bond against the heirs-at-law of the deceased 
 husband, they pleaded the marriage, &c., and the plaintiff replied 
 *the fact that the bond was made in contemplation of a r^jt-Qq-i 
 marriage between the defendant and the obligor, and with 
 intent tliat, in case the marriage should take place, and the plaintiff 
 should survive her husband, the plaintiff should have the benefit of 
 the bond, it was held that those facts might well be averred, being 
 perfectly consistent with the bond. 
 
 It has already been seen that, as between parties to a deed, evi- 
 dence of a further consideration than that expressed in the deed is 
 admissible where the evidence does not contradict the deed.^ 
 
 Except in cases where the Statute of Frauds, or other law, requires 
 a written agreement, parol evidence may be admissible, in conjunc- 
 tion with written, to prove the agreement. Thus, if an agreement 
 be reduced into writing, parol evidence is admissible to show that the 
 parties, without writing, afterwards varied the terms;™ for here the 
 evidence is offered, not to vary the terms of an instrument which 
 stands admitted as the real record of the intention of the parties, but 
 is offered consistently with the existence of the instrument, and con- 
 fessing that it does so exist, in order to avoid its effect by proof of a 
 new agreement, adopting the old one, either wholly or in part, but 
 annexing certain additional terms. 
 
 It has, indeed, already been seen, that previous or contemporary 
 declarations are not admissible to vary the terms of a written agree- 
 ment; where, however, the nature of the subject-matter does not re- 
 quire the agreement to be *in writing, although a presump- r*794-| 
 tion arises, in the absence of proof to the contrary, that the 
 
 •^ 5 T. R. 381. 
 
 ' Supra, p. 659. So a deed which recites a pecuniary consideration only, may 
 be shown to have been founded on a consideration of marriage : Villers v. Bea- 
 mont, supra, p. 660. Where premises were purchased at a sale in different lots 
 by the plaintiff and defendant, and in their deeds the premises were described 
 only by reference to the then tenants ; held, that a handbill exhibited at the sale 
 was admissible, not as controlling, but explaining and applying the deed, and 
 showing what was then in the tenants' occupation : Murley v. McDormott, 8 A. 
 & E. (35 E. C. L. R.) 138. 
 
 " Supra, p. 655.
 
 724 PROOFS. 
 
 . . . . • 
 
 parties expressed in writing the wJiole of their intention in respect of 
 
 the subject-matter, and intended the written terms to operate as an 
 agreement, yet that presumption may, it seems, be rebutted by express 
 evidence that what was so written was intended as a mere memoran- 
 dum of one part or branch only of a more general agreement, and 
 was not intended to operate absolutely and unconditionally," or it 
 may be shown that a parol contract was made independently, wholly 
 collateral to and distinct from a written one made at the same time. 
 In such cases, the parol evidence is used, not to vary the terms of the 
 written instrument, but to show either that it is inoperative as an entire 
 and independent agreement, or that it is collateral and irrelevant. 
 
 Where a statute requires the agreement to be in writing, the case 
 admits of a very different consideration ; there the oral and written 
 terms could not be incorporated ; and it was formerly doubted, 
 whether the previously written agreement would be discharged and 
 revoked by a subsequent oral agreement." It is however now 
 
 " See Jeffrey v. MaUon, 1 Starkie, C. (2 E. C. L. R.) 267. The action was in 
 assumpsit for not taking proper care of a horse. A written memorandum was 
 made upon hiring a horse, " six weeks, at two guineas — W. W." (the hirer) ; 
 Lord Ellenborough held that evidence was admissible to show that at the time 
 of hiring it was expi-essly stipulated, that as the horse was used to shy^ the 
 hirer, if he took him, should be liable to all accidents. In many instances, the 
 terms reduced to writing may constitute but a small part of the real contract. 
 Suppose A. to let a house by parol to B. for two years, and that at the time of 
 the parol agreement a stipulation as to the furniture is made, for convenience 
 of calculation, in writing, and that at the foot of the account is written " B. 
 to take the furniture at the above valuation," it would be difficult to con- 
 tend that B. would be bound to buy the furniture, although A. refused to 
 let him occupy the house, and that he would be concluded by the written part 
 of the engagement from showing the real condition annexed to it : see per 
 Cur. Goss V. Lord Nugent, 5 B. & Ad. (27 E. C. L. R.) 64 ; Allen v. Pink, 4 31. 
 & W. 140. 
 
 ° An agreement to waive a contract for the purchase of lands is as much an 
 agreement concerning lands as the original contract is, and it was therefore 
 thought must be in writing : see per Lord Ilardwicke, Buckhouse v. Crosby, 2 
 Eq. C. Abr. 32 ; Bell v. Howard, 9 Mod. 302. But unless it be sought to charge 
 the party on the altered agreement this is not so, for the statute only requires 
 writing in that case. In Parteriche v. Powlett, 2 Atk. 384, Lord Ilardwicke is 
 reported to have said, that to add anything to an agreement in writing, by ad- 
 mitting parol evidence which would affect land, is not only contrary to the Sta- 
 tute of Frauds, but to the rule of common law before the statute was in being; 
 yet, as mere parol agreements concerning land were operative before the statute, 
 there seems to have been no reason why a written contract should not have been 
 varied by a subsequent oral agreement when it related to lands, as well as in 
 any other case : see Clinan v. Cooke, 1 Sch. & Lef. 35.
 
 PAROL EVIDENCE BETWEEN STRANGERS, ETC. 725 
 
 *settled, that in cases which are within the scope of the r._„_-, 
 
 ... I i 2iO I 
 
 Statute of Frauds, parol evidence is admissible to show a •- -• 
 
 dispensation with the performance of part of the original contract, 
 
 such as an agreed substitution of other days than those stated in the 
 
 contract for the delivery of goods sold,'' or even to show that it has 
 
 been totally rescinded.*" And where a written contract states .a time 
 
 and place for the delivery of goods, an alteration as to the time not 
 
 in writing, though effectual to discharge, is not valid to charge the 
 
 the party, unless it be in writing." 
 
 Next, where one of the contending parties was not a party to the 
 record or other instrument. It has been seen, that in some instances 
 where the proceeding is, as it is *technically termed, in rem, p^^^^-. 
 the judgment or decree is final and conclusive upon all.^ ^ -'J 
 Where, however, the record is admissible but not conclusive evidence, 
 even parol evidence seems to be admissible to prove the fact in con- 
 tradiction of the record. 
 
 Thus, upon an indictment against an accessory to a felony although 
 the record of the conviction of the principal be admissible evidence to 
 prove the fact, yet, as it is not conclusive, the accessory is entitled to 
 adduce any legal evidence in contradiction of the fact stated on the 
 record.' 
 
 Although there are many instances in which a deed or agreement 
 between others is evidence for or against a stranger, yet it seems to be 
 a general rule, that in all these cases parol evidence of the fact would 
 still be admissible. 
 
 Thus, in the case of The King v. Scammonden,''^ already cited, the 
 
 P Cvjf V, Penn, 1 M. & S. 21 ; Warren v. Stagg, cited in Littler v. Holland, 
 3 T. R. 591; Thresh \. Rake, 1 Esp. C. 53, cor. Lord Kenyon ; where, in a 
 written agreement, an appraisement on a given day was specified as a condition 
 precedent, oral evidence of an enlargement by consent was admitted : cor. Lord 
 Kenyon ; but see Snowball v. Vicaris, Bunb. 175. In CvJf v. Penn, 1 M. & S. 
 26, Lord Ellenborough observed, " If this agreement had been vai'ied by parol, 
 I should have thought, on the authority of Meres v. Ansell, 3 Wils. 275, that 
 there had been strong ground for the objection." But Meres v. Ansell was 
 decided wholly upon the general principle of the admissibility of a cotemporary 
 parol agreement to the very terms of a written one. 
 
 Goss V. Lord Nugent, 5 B. & Ad. (27 E. C. L. R.) 66. 
 
 ^ Marshall v. Lynn, 6 M. & W. 109 ; supra, p. 663. 
 
 * Supra, tit. Judicial Instruments : and vide infra, tit. Settlement. 
 
 ' Tit. Accessory. 
 
 ° 3 T. R. 474. So in R. v. Llangunnor, 2 B. & Ad. (22 E. C. L. R.) 916 ; the 
 deed of apprenticeship stating the money to have been paid by /. M., evidence 
 was admitted to show that it was in part pa»ish money ; and see R. v. Wickham,
 
 726 PROOFS. 
 
 inhabitants of a parish were permitted to show that X30 was in fact 
 paid as the consideration upon the sale of an estate, although the 
 deed of conveyance between the parties specified X28 as the conside- 
 ration. Here the question was as to the value actually given for the 
 estate; and although the agreement was prtmd facie evidence as to 
 the fact, and although the parties themselves might have been bound 
 by their own representation of the transaction, it was not binding 
 
 „• _ upon strangers to the exclusion of the *real fact. In the 
 r*7271 . , 
 
 L -^ case of The King v. Laindon," the question as to a settle- 
 ment was, whether the parties intended to contract as master and 
 servant, or as master and apprentice; the written agreement was as 
 follows: I, J. M., do hereby agree with J. (7., to serve me three 
 years, to learn the business of a carpenter, the first year to have la. 
 2d. per day, the second year to have Is. Qd. per day," &c. In addi- 
 tion to this, J. C. was admitted to prove, at the trial, that at the time 
 of signing the agreement he agreed to give J. M. the sum of three 
 guineas, as a premium to teach him the trade, and that he was not 
 to be employed in any other work. The Court of King's Bench held 
 that the evidence was admissible.^ It is, however, to be observed 
 upon this case, that the question might have been very different 
 indeed, had it arisen as between the contracting parties; as if, for 
 instance, a dispute had arisen between them as to the nature of the 
 service which the master had a right to exact by virtue of the agree- 
 ment. If in that case the servant had insisted on the co-existing 
 parol agreement to limit his service to carpenters' work, the objec- 
 tion would have operated strongly that this would have been to super- 
 add terms by parol to those contained in the written instrument, or 
 to explain the intention of the parties by parol evidence. But the 
 question was between strangers to the contract; the point in issue 
 was, the real intention of the parties when they committed certain 
 terms to writing; the terms so written were admissible evidence, as 
 tending to prove the fact, on the natural presumption, in the absence 
 of all suspicion of fraud, that the parties would disclose their real 
 
 2 Ad. & El. (29 E. C. L. R.) 517 ; whel-e it was held that a parish might show 
 a settlement by renting a tenement in A., although the lease stated it to be in 
 B. Clearly parish officers arc not estopped from showing the true consideration 
 for a conveyance : R. v. InliabUants of Cheudlc, 3 B. & Ad. (23 E. C. L. R.) 
 833 ; and see It, v. Olney, 1 M. & S. 387 ; and case where evidence has been 
 admitted of a consideration different from that expressed in the deed, supra, p. 
 
 ' 8 T. R. 379 ; see also R. v. ShinfieJd, 14 East 544. 
 * Fer Lord Kenyon, C. J., and Lawrence, J.
 
 PAllOL EVIDENCE — GENERAL RULE, ETC. 727 
 
 intention ; but this was not the only medium of proof, neither was it 
 an exclusive one, for the private statement of the parties couhl not, 
 on any principle, bind and estop strangers. 
 
 Where the action was brouf'ht against the heir and *devi- ^ „^^^ 
 see, on a bond, an issue was taken on the fact, whether the L " J 
 defendant had sold the estate for more than X168, a lease and release 
 were produced in evidence, from Avhich it appeared that the defendant 
 had sold the estate for £210, but it was held that he was at liberty 
 to prove that part of the estate so sold did not belong to the testa- 
 tor, but had been purchased by the defendant for the sum of £42, 
 in order to be sold to the vendee.^ Here the evidence Avas consistent 
 with the terms of the deed ; but even if it had not been so, it seems 
 that it would still have been admissible as betAveen those parties ; for 
 although, as between the defendant and the vendee, the defendant 
 might have been estopped by his deed from making any averment 
 against it, yet as between the plaintiff and defendant there was no 
 mutuality, and consequently no estoppel, and therefore the defendant 
 was not concluded, upon issue joined as to the amount for which the 
 estate sold, from showing the real fact. It was held in the same 
 case, that although the deed stated that the consideration was paid to 
 the vendor, evidence was admissible to show that it Avas paid to a 
 third person, with his privity. 
 
 A party to a deed may, in an action betAveen others, contradict the 
 deed by his testimony ; thus, one who has jointly Avith another exe- 
 cuted an assignment of a ship, as of their joint property, is com- 
 petent to prove that he had no interest in it.^ 
 
 With the exceptions already adverted to, the general inference, as 
 above stated, seems to be, that oral evidence may be used indifferently 
 as original and independent evidence of a fact, either concurrently 
 with or in opposition to written testimony;'' and that Avritten evidence 
 
 y Green v. Weston, Say. 209. 
 
 ^ Walton V. Shelton, per Willes, J., 1 T. R. 301. 
 
 " An order for goods, •describing their number and kind, is evidence for the 
 plaintiff in an action against the defendant for not delivering the goods, al- 
 though no time or price was mentioned ; and the defendant's acceptance of the 
 order, and the price agreed upon, may be proved by pai'ol : Ingram v. Lea, 2 
 Camp. 521. Where the terms of adjustment with an underwriter were endorsed 
 on the policy, and the money was paid, parol evidence was admitted of a previ- 
 ous agreement, that if the other underwriters should eventually pay a less sum, 
 the surplus should be returned : Eussell v. Dunskey, 6 Moore (17 E. C. L. R.) 
 223. The fact that a receipt has been given does not exclude parol evidence of 
 payment : Rambert v. Cohen, 4 Esp. C. 213. An oral admission by a defendant 
 is evidence of a debt, although at the same time a written admission was en-
 
 729 PROOFS. 
 
 ^ however *superior it may be, and frequently is in effect to 
 
 L " -I mere oral evidence, does not in any case, of its own autho- 
 rity, unaided by an express rule of law, exclude such evidence.' 
 
 In an action for bribery at an election, it was held that parol evi- 
 dence was admissible to prove the delivery of the precept to the re- 
 ^^ turnino; officer, although it appeared that *the returning 
 L -J officer had endorsed upon the precept, with a view to prove 
 it, the time of his having so received it, and that the endorsement had 
 been attested by two witnesses.'' 
 
 tered in a book, which cannot be read for want of a stamp : Singleton v. Bar- 
 rett, 2 C. & J. 368 ; Jacob v. Lindsay, 1 East 460 ; Maugham v. Hubbard, 8 B. 
 & C. (15 E. C. L. R.) 14; Slatterie v. Pooleij, 6 M. & W. 664 ; and see supra, p. 
 506. - Semble, evidence is admissible that notes were issued by a corporation for 
 a different purpose than for which they were authorized to issue them : Siai^k v. 
 Highgate Archivay Company, 5 Taunt. (1 E. C. L. R.) 792, 
 
 So, Avhere a memorandum of an intended apfreement was read over to an in- 
 tended tenant, but never signed, parol evidence of the terms was admitted : Doe 
 d. Bingham v. Cartivright, 3 B. & Aid. (5 E. C. L. R.) 326 ; R. v. Wrangle, 2 
 
 A. & E. (29 E. C. L. R.) 514 ; Trewhitt v. Lambert, 10 A. & E. (37 E. C. L. R.) 
 470 ; Lord Bolton v. To7nUn, 5 A. & E. (31 E. C. L. R.) 856 ; R. v. Worth, 4 Q 
 
 B. (45 E. C. L. R.) 132. Where the plaintiff's agent entered into a verbal agree- 
 ment with the defendant, and make a memorandum of the terms to assist his 
 own recollection, which was not signed, it was held unnecessary to produce it : 
 Dalison v. Stark, 4 Esp. 163. So a memorandum delivered by the auctioneer 
 to the bidder, to whom lands were let by auction, containing a description of 
 them, the term, and the rent to be paid, but not signed by any one, is not such 
 a writing as to exclude parol evidence : Ramsbottom v. Tunbridge, 2 M. & S. 434. 
 So the fact of tenancy may be proved by parol, although there be a written 
 lease: R. v. Eingston-iipon-Hull, 7 B. & C. (14 E. C. L. R.) 661 ; but the term 
 can be proved by the lease only ; R. v. Merthyr Tydvil, 1 B. & Ad. (20 E. C. L. 
 R.) 29 ; Augustien v. Challis, 1 Ex. 279. So, the fact that goods were deposited 
 for sale may be proved by parol, although the terms may be in writing, and 
 can be proved by writing only : Whitfield v. Brand, 16 M. & W. 282 ; Keys v. 
 Hartoood, 2 C. B. (52 E. C. L. R.) 905. 
 
 •^ Grey v. Smytlies, Burr. 2273. It appeared in the case of Reason and Tran- 
 tor, Stra. 499, that the dying declaration of Mr. Lutterel, the deceased, had been 
 taken down in writing by a witness at the instance of two justices of the peace 
 who were present ; the witness had afterwards copied the writing thus made, and 
 produced it at the trial ; but the original was not produced. The court held that 
 the copy was not evidence. Upon tiiis it may be observed, that although the copy 
 was not evidence, the original being still in existence, and being better evidence 
 than the copy, yet it seems, that in such a case, the mere fact that the witness 
 reduced the declarations to writing at the time, would not have excluded parol 
 
 * When a verbal sale of chattels is perfected by delivery and a bill of sale sub- 
 sequently accepted from the vendor, the verbal sale may be proved by parol with- 
 out the production of the writing: Sanders v. Stokes, 30 Ala. 432.
 
 DEFECTIVE AND SECONDARY — DISTINCTION. 730 
 
 Where letters are written in so dubious a manner as to be capable 
 of different constructions, or to be unintelligible, without the aid of 
 extrinsic circumstances, their meaning becomes a question of fact for 
 the jury, and parol evidence of such extrinsic facts is admissible ; as 
 in the case of libels, threatening letters, or a letter offered in evi- 
 dence to prove acknowledgments to take a case out of the Statute of 
 Limitations. But if they cannot be explained by extrinsic circum- 
 stances, then, like deeds or agreements, their construction is matter 
 of law for the court." 
 
 So, an instrument in itself defective and inoperative may be con- 
 firmed and supplied by oral testimony, and operate in conjunction 
 with it. Thus, where in the bishop's register a blank was left for the 
 name of the patron, it was held that this might be supplied by oral 
 testimony,** for as the presentation itself might have been by parol, 
 it might have been proved by the aid of the suppletory parol evidence, 
 *consequently there was no unwarranted substitution of oral r^yo-i-i 
 for written evidence. 
 
 In order to exclude oral evidence of a contract, it is necessary to 
 prove that there is a subsisting written contract. And, therefore, 
 after the plaintiff in ejectment had given parol evidence of the ten- 
 ancy, the evidence was held to be suflScient, although it appeared 
 upon the cross-examination of his witness that an agreement relative 
 to the land in question had been produced upon a former trial, and 
 still existed ; but he could not say whether it was a subsisting agree- 
 ment or between these parties.* 
 
 evidence of those declarations, the instrument not being an authentic one, au- 
 thorized by the statute of Philip and Mary: see Sayer's case, 12 Vin. Ab., A. b. 
 23, pi. 7. In the same case other declarations of the deceased, which had not 
 been taken down in writing, made at other times, were received in evidence : see 
 R. V. Smith, 2 Stark. C. (3 E. C. L. R.) 208. 
 
 <= Per Buller, J., Macheath v. Haldimand, 1 T. R. 182. 
 
 * Bishop of Meath v. Lord Belfield, 1 Wils. 215. 
 
 ^ Doe d. Wood v. Morris, 12 East 337 ; Doe d. Shearwood v. Pearson, Ibid. 
 238, n. So, where a party had agreed to sell goods on commission, but the 
 objection that the agreement was in writing was not made till the agreement 
 had been proved : Whitfield v. Brand, 16 M. & W. 282 ; and see Keys v. Hat-- 
 wood. 2 C. B. (52 E. C. L. R.) 905. Obviously, if the plaintiff's case be estab- 
 lished without showing that there was any writing, he will not be nonsuited by 
 the defendant producing it 5 nor can the latter do so, unless it be properly 
 stamped, &c., as it is his own evidence: Fielder v. Ray, 6 Bing. (19 E. 0. L. R.) 
 332 ; R. V. Padstoiv, 4 B. & Ad. (24 E. C. L. R.) 208. Secus, where it appears 
 by the plaintiff's evidence that there is a written agreement: Fenn v. Griffith, 
 6 Bing. (19 E. C. L. R.) 533; and consequently, in Curtis v. Greated, 1 A. & 
 E. (28 E. C. L. R.) 167, which was an action by the purchaser against the 
 43
 
 731 PROOFS. 
 
 A mere unsigned memorandum, made with a view to a subsequent 
 agreement, need not be proved/ 
 
 There is a distinction between the exclusion of evidence by the 
 operation of this rule, and a mere failure or defect in evidence which 
 is in itself admissible. The eifect of the rule is to exclude particular 
 evidence altogether until proof be given that better evidence is unat- 
 tainable ; and when such proof has been given, to admit the evidence 
 P^r»q9-i of *inferior degree. But evidence tending to the proof may 
 be admissible, yet insufficient, and may still be so, although 
 it be proved that better evidence cannot be had. 
 
 In the case of Williams v. The East India Company,^ the question 
 was, whether the agent of the defendants, who were the freighters of 
 the plaintiff's ship, had apprised the plaintiff or his officers of the 
 inflammable and dangerous nature of a quantity of roghan, which had 
 been stowed on board the ship, and which ultimately occasioned its 
 destruction. It was the duty of the conductor of military stores to 
 convey goods on board the ship, and of the chief mate to receive 
 them ; the chief mate was dead, and no evidence was given of what 
 passed between him and the conductor of the stores ; but the captain 
 and second mate proved that no communication had been made to 
 them of the nature of the roghan. It was objected, that the conduc- 
 tor of the stores ought not to have been examined, and it was so ruled 
 by Lord Ellenborough at Nisi Prius, and afterwards decided by the 
 whole court, on the ground, 1st, that the delivery without notice thus 
 insisted upon by the plaintiff was a criminal act, and that therefore it 
 was incumbent on the plaintiff to prove the neglect to give notice ; 
 and, 2dly, that the plaintiff had not given sufficient prima facie evi- 
 dence of the want of notice. The defect in this instance seems to 
 have consisted rather in a failure in the measure of the proof, than 
 in the substitution of secondary for original evidence. It was neces- 
 sary to negative the fact of communication, which, under the circum- 
 stances, could be proved by no one but the conductor, for the chief 
 
 auctioneer to recover the deposit upon failure of title, and the plaintiff produced 
 the conditions of sale, one of which required the execution of an agreement to 
 pay the residue by the purchaser, and it further appeared that there was a 
 written agreement of sale signed by him, the defendant was held entitled to 
 ask whether it related to the deposit, with a view to oblige the plaintiff to pro- 
 duce it, if the answer was in the affirmative. 
 
 f Doe V. Cartwriijht, 3 B. & Aid. (5 E. C. L. R.) 32(3 ; Dalison v. Stark, 4 Esp. 
 ]G3, post; liamnhottom v. Tunnbridge, 2 M. & S. 434, 
 
 8 3 East 192. See the case of Kotster v. Heed, G B. & C. (13 E. C. L. R.) 19 ; 
 and Vol. II., tit. Policy of Insurance, Presumptive Evidence of Loss.
 
 QUANTITY AND MEASURE OF PROOF. 732 
 
 mate was dead; and that evidence "which was essential was not ^iven. 
 The evidence which was received from the captain and second mate, 
 that they did not know that any communication had been made of the 
 nature of the article, Avas not evidence of a secondary *naturej r*7qq-| 
 substituted in the place of superior evidence ; for it was at 
 all events admissible evidence, and would still have been admissible 
 had the conductor been called, contrary to the nature of secondary 
 evidence, which can never be admitted where the superior evidence is 
 adduced, but is wholly superseded by it. Neither, like secondary 
 evidence, could it have been substituted for the superior evidence, 
 when the latter had become unattainable ; for had the conductor 
 been dead, there would still, it seems, have been a defect in the 
 evidence incapable of being supplied by that of the captain and chief 
 mate. 
 
 With regard to the quantity and measure of proof, but few obser- 
 vations are requisite. It is for the parties, according to their own 
 discretion, to procure such evidence as the circumstances of the case 
 may supply ; and it is for the jury to decide upon its effect. The 
 law rarely interferes as to the measure of proof; and the sufficiency 
 cannot, in the nature of things, be subject to legal definition or con- 
 trol. *" All that can be done is to intercept such evidence as would 
 tend to prejudice or mislead; this being done, the law confides in the 
 good sense and integrity of the jury. Neither is there any order in 
 which evidence must be given ; as to the order in which a party 
 brings forward his proofs, he is guided by his own discretion.' In 
 some few instances, however, the law interferes as to the number of 
 witnesses.-* 
 
 '' Quae argumenta ad quern modum probanda; cnique rei sufEciant, nullo certo 
 modo satis definiri potest. 
 
 * R. v. Turner, 2 C. & K. (61 E. C. L. R.) 735, j^er Erie, J. 
 
 J It seems that in equity no decree can be made on the oath of one witness 
 against the defendant's answer on oath : Story's Eq. Jur. 1528. But circum- 
 stances may be equivalent to the testimony of any single witness : Ibid. ; 3 Ch. 
 C. 123, 69. And formerly one witness was not sufficient against the husband, 
 although it was supported by the answer of the wife, for she could not be a 
 witness against her husband : 2 Ch. C. 30 ; Wrottesely v. Bendish, 3 P. Wms. 
 238. But a decree may be made on the evidence of a single witness, where the 
 evidence of the party is falsified : 2 Vern. 554; 2 Atk. 19; 1 Bro. Ch. C. 52. 
 
 In general, at common law one witness was in all cases sufficient; per Holt, 
 C. J., who said that the authorities cited by Lord Coke to the contrary did not 
 warrant his opinion : Carth. 144 ; Co. Litt. 6, b. The Spiritual Court acting 
 upon the rules of the civil law, requires two witnesses ; but where temporal 
 matter is pleaded in bar of an ecclesiastical demand, and the evidence of one
 
 734 PROOFS. 
 
 r^rro4-\ *^s ill tliG casB of bigli treason, wlien it works corruption 
 of blood, there two witnesses are necessary by tbe express 
 provisions of the statute law.'' So, in the case of perjury, two wit- 
 nesses are essential, for otherwise there would be nothing more than 
 the oath of one man against another,' upon whicli the jury could not 
 safely convict. In bastardy cases, the statute"" requires the evidence 
 of the mother to be corroborated in some material particular, in order 
 to charge the putative father; and in criminal cases, the judge will 
 generally tell the jury that the evidence of an accomplice ought to 
 be so corroborated, though it is certainly competent for the jury to 
 act on his sole evidence." 
 
 In other cases the general rule seems to be, that where there is any 
 lecral admissible evidence tending to prove the issue, the effect of that 
 evidence is solely for the consideration of the jury." 
 l-^_„--l *It is, however, in all cases requisite that the plaintiff 
 should adduce some ])7'imd facie evidence in support of 
 every essential, allegation. Where there is a failure of evidence, 
 tending to establish any one essential averment, the court directs 
 an acquittal in a criminal, or directs the plaintiff to be nonsuited in 
 a civil case. But, in civil actions, if there be any evidence, however 
 weak, tending to the proof of the issue, the plaintiff may, by appear- 
 ing when he is called, have his case submitted to the consideration of 
 the jury; but if there should be no evidence tending to prove anyone 
 essential fact, the jury would be directed to give a verdict against him, 
 by which he would be absolutely and finally concluded. 
 
 witness is refused, a prohibition will be awarded. As, where an executor 
 proves the payment of a legacy by one witness': Shatter v. Friend, Show. 175 ; 
 Carth. 142. 
 
 " 7 & 8 Will. III. c. 3. 
 
 1 Vol. II., tit. Perjury; R. v. Yates, Car. & M. (41 E. C. L. R.) 132. But it 
 is clear that two witnesses to all the facts for the prosecution are not necessary. 
 It is enough if there be something in the case to make the oath of the prose- 
 cutor preferable upon the whole to that of the prisoner: R. v. Boulter, 21 L. 
 J., M. C. 57. But there must be such corroboration as to each assignment to 
 justify a conviction upon each : R. v. Parker, Car. & M. (41 E. C. L. R.) 639 ; 
 R. V. Virrier, 12 Ad. & E. (40 E. C. L. R.) 317. 
 
 "^ 7 & 8 Vict. c. 101 ; 8 & 9 Vict. c. 10. 
 
 " R. V. Atwood, 1 Leach 464 ; R. v. Jones, 2 Camp. 132 ; R. v. Hastings, 7 C. 
 & P. (32 E. C. L. R.) 152; R. v. Durham, 1 Leach 479. There are, however, 
 some ofFences to which this rule would not be applicable : R. v. Jarvis, 2 M. & 
 Rob. 40 ; R. v. Hargrave, 5 C. & P. (24 E. C. L. R.) 170. As to the necessity 
 for the corroboration being of some particular material to the charge, see R. v. 
 Addis, 6 C. & P. (25 E. C. L. R.) 388 ; R. v. Webb, 6 C. & P. (25 E. C. L. R.) 595. 
 
 " Vol. II., tit. Conviction.
 
 MATTERS JUDICIALLY NOTICED. 735 
 
 No evidence is requisite to prove the existence of a fact "whicli 
 must have happened according to the constant and invariable 
 course of nature/ or to prove any general law :'^ nor is it necessary 
 
 P See Lord Ellenborouf^h's observations, B. v. LvJ/'e, 8 East 201. 
 
 ' Facile patet non indigere probatione jus commune, quod judici jam notum 
 esse censetur: Ileinecc. El. J. C. 443. The courts notice the contents of all 
 public Acts: Reniger v. Fogossa, Plow. 12 ; 81, a, 83, b ; includino; all facts re- 
 cited or stated in them : E. v. Luiton, 4 M. & S. 332 ; and the true title of them : 
 Beck V. Beverly, 1 1 M. & W. 845 ; Holland's case, 4 Co. 75. Of such as relate 
 to trade in general : Kirk v. Kowill, 1 T. R. 124; but not of a statute relating 
 to a private trade only : Ibid. But if a statute, private in its nature, gives a 
 forfeiture to the King, it is a public Act : R. v. Bnggs, Skin. 428 ; and if an 
 Act relate to a public highway, it is so far a public Act : ante, p. 275. And 
 the courts must now, by 8 & 9 Vict. c. 113, s. 31, [ante, p. 277,) receive as evi- 
 dence copies of private, and local and personal acts, purporting to be printed 
 by the Queen's printers. 
 
 So, the courts will notice all other general laws, as that every corporation has 
 a right of removing one of its members : R. v. Lyme Regis, Doug. 149. The 
 privileges of the King's Palaces : R. v. Elderton, Lord Rayp. 980. And all 
 privileges of the Crown : Ibid. The Ecclesiastical Law : 1 Roll. Abr. 526 ; 6 
 Vin. Abr. 496 ; and the Admiralty Law : Ibid. 
 
 The commencement of the sessions of Parliament : Partridge \. Strange, 
 Plowd. 84 ; R. V. Wilde, 1 Lev. 216 ; Spriiig v. Eve, 2 Mod. 240 ; Birt v. Roth- 
 well, Lord Raym. 343 ; Moor 551 ; the session in which a statute was passed, 
 and the year of the reign : R. v. Biers, 1 A. & E. (28 E. C. L. R.) 327 ; Gihbs 
 V. Pike, 8 M. & W. 223 ; the place of holding the Parliament on a particular 
 day : Birt v. Rothwell, Lord Raym. 210 ; the prorogation of Parliament : 1 Lev. 
 296, supra; the course of proceedings in Parliament, whether before one of 
 the Houses, or before a Committee: Lake v. King, 1 Saund. 131. The journals 
 of either House were not judicially noticed : R. v. Knollgs, 1 Lord Raym 15 ; 
 but by 8 & 9 Vict. c. 113, s. 3, copies of them, purporting to be printed by the 
 Queen's printers, or the printer of either House, must be received : supra, p. 281, 
 
 So the courts will take notice of all courts of general jurisdiction, and their 
 proceedings : Dohson v. Bell, 2 Lev. 176 ; as of the Court of Chancery : Weaver 
 V. Clifford, Cro. J. 3 ; Worlich v. Massy, Cro. Jac. 67 ; and the other courts at 
 AYestminster : Lane^s case, 2 Co. 16, b ; Mounson v. Bourn, Cro. Car. 526 ; W. 
 Jones 417 ; H. Slade's case, 4 Co. 93, b. The proceedings of the County Pala- 
 tine Courts : Peacock v. Bell, 1 Saund. 73. Of the Courts in Wales : Broughton 
 v. Randall, Cro. Eliz. 502 ; Gryff'yth v. Jenkins , Cro. Car. 179. Of the Prero- 
 gative Court of the Archbishop of Canterbury : Shelton v. Cross, 1 Ford 466, 
 sed qucere. But they do not notice the mere practice of other courts, thus the 
 practice of the Court of Chancery : Li re Clarke, 2 Q. B. (42 E. C. L. R.) 619 ; 
 Dicas V. Lord Brougham, 1 M. & Rob. 312 ; and of the Ecclesiastical Courts 
 is a matter of fact to be proved by witnesses : Beaurain v. Sir W. Scott, 3 
 Camp. C. 388; Tucker v. Liman, 4 M. & G. (43 E. C. L. R.) 1049; so is that 
 of the Insolvent Court: R. v. Koops, 6 A. & E. (33 E. C. L. R.) 198; and of 
 the Bankruptcy Court : Van Sandaii v. Turner, 6 Q. B; (51 E. C. L. R.) 773. 
 
 The courts will notice what courts possess a general jurisdiction : Tregany
 
 736 PROOFS. 
 
 r*7^fi *7^7~\ ^'^ prove any general customs *of the realm/ or any 
 artificial regulation prescribed by *public and com- 
 
 V. Fletcher, Ld. Raym. 154 ; Peacock v. Bell, 1 Saund. 73 ; 1 Sid. 340. And the 
 limits of their jurisdiction : 2 Inst. 557. And their officers: Ogle v. Norcliffe, 
 Ld. Raym. 869; see Dillon y. Ilarjmr, Ld. Raym 898. But they do not take 
 judicial notice of the nature and extent of inferior courts : Moravia v. Sloper, 
 Willes 37 ; nor of the proceedings of inferior courts : R. v. Chancellor of Cam- 
 hridge, Ld. Raym. 1334; nor of any particular jurisdiction, as of a dean and 
 chapter to induct: Bro., Presentation al Eglise, pi. 13, Office, pi. 2; nor that 
 the lord of a particular franchise has the return of writs : Bro., Office, pi. 2 ; 
 nor of a particular liberty : March. 125 ; nor of the Cinque Ports : 2 Inst. 
 557 ; nor of an entry in the sheriff's book, referred to by an affidavit : Russell 
 V. Dickson, 6 Bins;. (19 E. C. L. R.) 442. Nor foreign laws : Mostijn v. Fahri- 
 gas, Cowp. 174. Nor laws of Scotland : Woodham v. Edwards, 5 A. & E. (31 
 E. C. L. R.) 771. Nor of the laws of the plantations abroad : Wet/ v. Yally. 6 
 Mod. 195. Nor the seal of a foreign court : Henry v. Adey, 3 East 221 ; Black 
 V. Lord Brayhooke, 2 Stark. C. (3 E. C. L. R.) 7 ; R. \. Bathwick, 2 B. & Ad. 
 (22 E. C. L. R.) 639. But they take judicial notice of the laws of Ireland: 
 Hunter v. Potts, 4.T. R. 194; Reynolds v. Fenton, 3 C. B. (54 E. C. L. R.) 191 ; 
 and that the common law prevails there : R. v. Neshitt, 2 D. & L. 529 ; per 
 Patteson, J. 
 
 So, every court will notice the records of its own court, but not deeds en- 
 rolled, for these are merely the private acts of the parties, authenticated in 
 court; nor the letters patent of another court: Wymark^s case, 5 Co. 74, b. ; 
 Bac. Abr., Ev. F. 
 
 The House of Lords, in a committee of privileges, even admitted an entry 
 in their journals as evidence of the limitations, in a patent, without requiring 
 the production of the patent: Lord Dvfferin and Clandeboye^ s claim, 4 CI. & F. 
 568. 
 
 ' As the custom of merchants : Williams v. Williams, Carth. 269 ; Carter v. 
 Downish, Ibid. 83; Pinkney \. Hall, Ld. Raym. 175; Erskine v. Murray, Ld. 
 Raym. 1542; Brandao v. Barnett, 3 B. C. (54 E. C. L. R.) 519; 12 CI. & F. 
 787 ; the customs of gavelkind and Borough-English : Clements v. Scudmore, 
 Ld. Raym. 1025 ; Co. Litt. 175; Launder v. Brooks, Cro. Car. 562. 
 
 But peculiai-ities not essential to tenures : 1 Sid. 138 ; Brown v. Ricks, 2 Sid. 
 153 ; Launder v. Brooks, Cro. Car. 562 ; such as a custom to devise : 2 Sid. 153 ; 
 or a gavelkind custom to hold by the curtesy, although the wife has no issue ; 
 1 Sid. 138 ; 2 Sid. 153; or particular local customs: Sjnnk v. Tenant, 1 Roll. 
 R. 105 ; Blacquiere v. Hawkins, Doug. 378 ; such as that of foreign attachment 
 in London : 1 Roll. 105, supra ; or of carting whores : Stainton v. Jones, Doug. 
 380, note ; Argyle v. Hunt, Str. 187 ; or that none but freemen of London are 
 admissible into the livery of a company : Piper v. Chappell, 14 M. & W. 624, 
 must be proved. But the customs of London are noticed in the city courts : 
 Doug. 380 ; and by the courts at Westminster, after they have been certified : 
 Blacquiere v. Hawkins, Doug. 380. But semhle, the courts take notice of such 
 customs only as have been certified to themselves: Piper v. Chappell, 14 M. & 
 W. 649 ; and as to the certificate, see Crosby v. Hetherington, 4 M. & G. (43 E. 
 C. L. R.) 933. The custom of the city, that every shop is a market overt, was
 
 MATTERS JUDICIALLY NOTICED. 738 
 
 petent authority; such as the ordinary *computation of time r+Yoo-i 
 by tlie calendar ;* or the known divisions of the kingdom ;' 
 or any public matters recited in Acts of Parliament," royal 
 
 [■"739] 
 proclamations," or other *public documents, published by 
 
 certified by Sir E. Colse, 3 Co. 83. The custom of forei<:;n attachment was cer- 
 tified by Starkie, recorder of that city, 22 Edw. IV. ; Doug. 379 ; 1 Rol. Abr. 
 554. The custom of a feme covert being sole trader is also noticed : Lavie v. 
 Phillips, Burr. 1784. And the distribution of the property of intestate free- 
 men of London : Bruin v. Knott, 12 Sim. 452. 
 
 ° Hoyle, V. Cormcallis, Stra. 387 ; Brough v. Parkings, Ld. Raym. 992 ; 2 & 3 
 Edw. VI. c. 1 ; 5 & 6 Edw. VI. c. 1 ; 24 Geo. II. c. 23. The fasts and festivals 
 appointed by the calendar ; Brough v. Perkins, 6 Mod. 80 ; P, v. Justices of' 
 Ipswich, 2 Ford. 280 ; Harvy v. Broad, Salk. 626. The number of days in a 
 particular month : 1 Roll. Abr. 524. The coincidence of the day of the week 
 with that of the year : Page v. Faucet, Cro. Eliz. 227 ; Smith v. Boucher, Ann. 
 64. That a particular day is a Sunday : Hanson v. Shackelton, 4 D. P. C. 8. 
 But not of the hours, as of the time of sunset: Collier v. Hokes, 2 C. & K. (61 
 E. C. L. R.) 1012. So, they will notice the beginning and end of term: Austin 
 V. Bewley, Cro. J. 548 ; Thomson v. Southwell, 12 Mod. 647 ; Dohson v. Bell, 2 
 Lev. 176. 
 
 * The courts will notice the known divisions of the kingdom into counties : 
 R. V. Sharpe, 8 C. & P. (34 E. C. L. R.) 436 ; but not the local situation of 
 places within particular counties, or the distances of counties from each other: 
 Deyhel's case, 4 B. & Aid. (6 E. C. L. R.) 243-, nor the division of counties, 
 unless described by statute : R. v. Bourne, Burr. s. c. 42 ; 2 & 3 Will. IV. c. 
 64. Also, counties, inferior counties : March. 125; 2 Inst. 557. That a county 
 is co-extensive with a particular town: R. v. Baker, 18 & 19 Geo. II. Also, 
 the ecclesiastical divisions of the kingdom : Adams v. Terre-tenants of Savage, 
 2 Ld. Raym. 854. Bu«t not the situation of liberties, vills or hamlets: 2 Inst. 
 557 ; R. V. Greep, Comb. 459 ; nor that a place is in a particular county, as 
 that the Tower is in London : Brown v. Thompson, 2 Q. B. (42 E. C. L. R.) 
 789 ; HumjyJireys v. Budd, 9 D. P. C. 1000 ; nor that a town is in a particular 
 diocese : R. v. Sympson, 2 Ld. Raym. 1379 ; Str. 609. So, the courts will 
 notice the extent of a port ; Fuzakerley v. Wiltshire, Str. 469 ; and of an incor- 
 porated town : R. v. Blacksmith'' s Company, Mich. 4 Geo. II. 
 
 The court will not notice without an averment, that Dublin, mentioned in a 
 bill of exchange, is Dublin in Ireland : Kearney v. King, 2 B. & Aid. 301. Of 
 course they will not notice the distance of streets in London from one another, 
 although they are well known : Kirby v. Hickson, 1 L. M. & P. 364 ; nor that 
 a particular street is a thoroughfare : Grant v. Moser, 5 M. & G. (44 E. C. L. 
 R.) 129. 
 
 " As of a war with France, the war being mentioned in several statutes : R. 
 V. De Berenger, 3 M. & S. 67 ; and see supra, p. 278. 
 
 ^ Supra, p. 281. The court will take judicial notice, as a public matter 
 affecting the government of the country, that an allegation that a revolted 
 colony has been recognized as an independent State by this country is false : 
 Taylor v. Barclay, 2 Sim. 213. So, they will notice the existence of a foreign 
 State recognized by the government: Yrisarri v. Clement, 3 Bing. (11 E. C. L. 
 R.) 438.
 
 739 PROOFS. 
 
 competent authority ;'' nor is evidence necessary to prove the time 
 of the accession of the sovereign ; or his death ;^ the privileges of 
 the royal palace ;'^ or the great and privy seals.'' So, the courts will 
 take judicial notice of the seals of the superior courts, "^ including the 
 courts of the counties palatine ;** of the Ecclesiastical Courts ;^ of the 
 High Court of Admiralty ;^ of the Court of Bankruptcy f of the 
 Insolvent Court;'' of the new County Courts;' of the Court of the 
 Vice-Warden of the Stannaries ;•* of the Board of Poor Law Com- 
 missioners ;'^ of the Record Office;^ of the General Registry Office;"" 
 of the Registrar of Designs' Office ;'' of the seal of the Apothecaries' 
 Company to a certificate of the qualification of an apothecary f and 
 of the corporate seal of the City of London. p And it seems that 
 where particular seals are given by Act of Parliament, the courts 
 must take judicial notice of them. 
 
 *But the courts will not take notice without proof of the 
 ■- ^ seals of inferior courts, unless made cognizable by particu- 
 lar statutes ; nor of the Irish, colonial, or foreign courts. "^ But 
 now documents which in Ireland were admissible in evidence with- 
 out proof of seal or signature, shall be received in the courts of 
 England without such proof; and so likewise, documents which are 
 admissible in England without proof of the seal shall be received 
 in Ireland without such proof, and both of these classes'' are also to 
 
 y As the London Gazette, without proof of its having come from the Queen's 
 printer: B. v. Forsyth, R. & R. 274; sed qucere; and see supra, pp. 279, 281. 
 ^ Holvian v. Burrow, 2 Ld. Raym. 791. , 
 
 * Attorney-General v. Donaldson, 10 M. & W. 117. 
 ** Supra, p. 257, et seq. 
 
 '^ Com. Dig., tit. Evidence, A. 2 ; supra, p. 258. 
 
 ^ Olive v. Guin, 2 Sid. 145. 
 
 « B. N. P. 247. 
 
 f Green v. Waller, Ld. Raym, 891. 
 
 e 1 & 2 Will. IV. c. 56, ss. 28, 29 ; 2 & 3 Will. IV. c. 114, s. 9. 
 
 " 5 & 6 Vict. c. 116. 
 
 * 9 & 10 Vict. c. 95, see ss. 3, 57, 111. 
 J 6 & 7 Will. IV. c. 106, s. 19. 
 
 " 4 & 5 Will. IV. c. 76, s. 3. 
 
 1 1 & 2 Vict. c. 94, s. 31. 
 
 ■» 6 & 7 Will. IV. c. 86, s. 33. 
 
 " 5 & 6 Vict. c. 100, 8. 16 ; 6 & 7 Vict. c. 65, ss. 6, 7. 
 
 » 14 & 15 Vict. c. 99, 8. 8. 
 
 P iJoe d. Woodmass v. Mason, 1 Esp. 53. 
 
 ■1 Henry v. Adaj, 3 East 221 ; Buchanan v. Rucker, 1 Camp. 63 ; Clark v. 
 Mullick, 3 Moo. P. C. 11. 252, where it was held that the seals of our courts 
 must be proved in the colonies. 
 
 ' 14 & 15 Vict. c. 99, ss. 9, 10, 11.
 
 PRESUMPTIONS. 740 
 
 be admitted in like manner in the colonies. And by the same 
 statute^ all judicial proceedings of any foreign or colonial court, 
 and all legal documents filed or deposited therein, may be proved by 
 a copy purporting to be sealed with the seal of such court ; or, if 
 the court has no seal, by a copy purporting to be signed by the 
 judge or one of the judges of such court, such judge stating on 
 such copy that the court has no seal, without further proof. Nor will 
 the courts notice the stamp upon the judge's order;' nor the seal 
 of the sheriff;" nor the seal of a corporation other than of London.'' 
 They also notice the royal sign manual ;^ the signatures of the 
 judges of the superior Courts of Law or Equity at Westminster. '^ 
 Before this statute, they would only notice the signature of a judge 
 of their own court '/ and also of their own officers.'' So, the courts 
 will of themselves notice the ^meaning of English words,^ tat in 
 terms of art, legal weights and measures, money, the ordi- ■- ^ 
 nary admeasurement of time.'*^ 
 
 No evidence also is necessary to prove any matter of legal presump- 
 tion." 
 
 «S. 7. 
 
 ' Barrett Navigation Co. v. Shoioer, 8 D. P. C. 173. 
 
 " Bunbury v. Matthews, 1 Car. & K. (41 E. C. L. R.) 380. 
 
 ^ Moises V. Thornton, 8 T. R. 307 ; Collins v. Carnagie, 1 A. & E. (28 E. C. L. 
 R.) 695 ; Couch v. Goodman, 2 Q. B. (42 E. C. L. R.) 580. 
 
 ' B. V. Miller, 2 W. Bl. 797. 
 
 ^8 & 9 Vict. c. 113, s. 2. 
 
 y R. V. Hare, 13 EastJ89. 
 
 '■ Howell V. Wilkins, 7 B. & C. (14 E. C. L. R.) 783. 
 
 " See Angle v. Alexander, 7 Bing. (20 E. C. L. R.) 119. 
 
 '^ Hocking v. Cooke, 4 T. R. 314 ; Kearney v. King, 2 B. & Aid. 301 ; R. v. 
 Swatkins, 4 C. & P. (19 E. C. L. R.) 552. 
 
 " According to the civil law, the effect of a legal presumption is " ut a proba- 
 
 ' As to what matters courts will judiciously notice : see Dixon v. Nicholls, 39 
 111. 372 •, Neaderhouser v. State, 28 Md. 257 ; Witherbee v. Dimn, 32 Cal. 106 ; 
 Ferdinand v. State, 39 Ala. 706 ; Grob v. Cushman, 45 111. 119 ; State v. Sher- 
 man, 42 Mo. 210 ; Wells v. Jackson Co., 47 N. H. 235 ; Carpenter v. Dexter, 8 
 Wall. 513 ; Johnson v. Robertson, 31 Md. 476 ; Kessel v. Albetes, 56 Barb. 362 ; 
 Graham v. Williams, 21 La. Ann. 594 ; Bethune v. Hale, 45 Ala. 522 ; Dyer v. 
 Last, 51 111. 179 •, Dewees v. Colorado, 32 Tex. 570 ; U. S. v. American Gold 
 Coin, 1 Woolw. 217 ; Fauntleroy v. Hannibal, 1 Dill 118 ; Prell v. McDonald, 
 7 Kans. 426 ; Bragg v. Rush Co., 34 Md. 406 ; Davidson v. Peticolas, 34 Tex. 
 27 ; Peo2)le v. Johr, 22 Mich. 461 ; Dole v. Wilson, 16 Minn. 525 ; Lake Merced 
 Water Co. v. Coivles, 31 Cal. 215 ; Vassault v. Seitz, Ibid. 225 ; Mossman v. 
 Forrest, 27 Ind. 233 ; Indianapolis R. R. Co. v. Stephen, 28 Ind. 429 ; Wood- 
 ward V. Chicago R. R. Co., 21 Wis. 309.
 
 741 PROOFS. 
 
 The nature of legal presumptions will now be considered. 
 
 Evidence, as has been seen, is either direct, where the witnesses 
 testify as to facts of which they have had actual knowledge ; or it is 
 indirect, circumstantial or presumptive,** where the fact is not proved 
 by direct evidence, but is inferred or deduced from one or more other 
 facts, which are directly proved or admitted. 
 
 According to this definition, circumstantial or presumptive evi- 
 dence includes all evidence which is not positive and direct, without 
 regard to its nature, intensity and degree ; whether the fact in issue 
 be a necessary consequence from the circumstances proved, or 
 whether, on the other hand, their tendency to establish the fact may 
 be rebutted by proof to the contrary ; whether the inference be made 
 by virtue of some previously known and ascertained connection 
 between the disputed fact and those which are proved, or be a mere 
 deduction of reason, exercised upon the special circumstances of the 
 
 ^ „ , ^^ case, either *with or without the aid of connections pointed 
 
 [*742] . . 
 
 ^ -■ out by experience. 
 
 A jjt'esumjjtion may be defined to be an inference as to the exist- 
 ence of one fact, from the existence of some other fact, founded upon 
 a previous experience of their connection. To constitute such a pre- 
 sumption, it is necessary that there be a previous experience of the 
 connection between the known and inferred facts, of such a nature, 
 that as soon as the existence of the one is established, admitted or 
 assumed, the inference as to the existence of the other immediately 
 arises, independently of any reasoning upon the subject. It also 
 follows, from the above definition, that the inference may be either 
 certain, or not certain, but merely probable, and therefore capable of 
 being rebutted by proof to the contrary. 
 
 Presumptions thus defined are either legal and artificial, or natural. 
 They are artificial, or presumptions of law, whenever they derive 
 from the laAV any technical or artificial operation and effect beyond 
 their mere natural tendency to produce belief, and operate uniformly, 
 
 tione merito immunis sit, quivel prsesumptionem pro sehabetvel possessionem." 
 — Heinccc. Pand. 374. 
 
 "^ The term presiun2>tive has l)een used in this sense by English lawyers, in 
 contradistinction to positive and direct evidence, and consequently as including 
 all evidence whatsoever arising from circumstances, -whether conclusive or in- 
 conclusive in its nature : see Co. Litt. 6 ; Staunf. 179 ; 3 Comm. 371 ; 17 How. 
 St. Tr. 1430; 1 St. Tr. 181. Lord Coke, when he speaks of violent, probable, 
 and light presumptions (Co. Litt. 0), evidently means, not presumptions in their 
 strict technical sense, but presumptive or circumstantial evidence. And see the 
 able work of Mr. Best " On Presumptions."
 
 PRESUMPTIONS. 742 
 
 without applying the process of reasoning on which they are founded 
 to the circumstances of the particular case. They are, on the other 
 hand, natural where they act merely by virtue of their own natural 
 efficacy. For instance, whenever a particular presumption arises 
 from the lapse of a defined space of time, it is always in its nature 
 artificial ; for the evidence, when left to its own natural efficacy, is 
 not confined within arbitrary and artificial boundaries. Thus, at 
 the expiration of twenty years, without payment of interest on a 
 bond,® or other acknowledgment of its existence, satisfaction was to be 
 presumed; but if a single day less than twenty years had elapsed, 
 the presumption of satisfaction from mere lapse of time did not arise. 
 This is obviously an artificial and arbitrary distinction. No man's 
 mind is so constituted that the mere lapse of the single day which 
 completes the twenty years would absolutely *generate in it 
 a conviction or belief that the debt had been satisfied. But ■- ^ 
 again ; satisfaction may be inferred from the lapse of a shorter 
 period, if it be rendered probable by other circumstances; for in- 
 stance, from the lapse of nineteen years; here the lapse of time is to 
 be taken into the account by the jury, in estimating the probability 
 whether, under all the circumstances, the debt has not been satisfied. 
 Here, however, the lapse of time possesses no artificial or arbitrary 
 operation, but is left to its mere natural tendency, to convince the 
 minds of the jury that the debt has been satisfied.^ 
 
 • Before the 3 & 4 Will. IV. c. 42. 
 
 ^ As artificial or lec^al presumptions are founded partly upon principles of policy 
 and utility, Independently of the real existence of the fact inferred, and conse- 
 quently, as such presumptions must occasionally, at least, be made contrary to 
 to the real truth, It follows, that these presumptions cannot, consistently with 
 just principles, be established, unless either the real fact be immaterial, as 
 where the presumption Is made merely for the purpose of annexing a legal con- 
 sequence to the fact on which the presumption Is founded ; or where the fact to 
 be presumed being material, but Its Investigation dIfScult and remote, a general 
 rule of presumption can be established of practical convenience, and consistent 
 with justice, although it may occasionally operate contrary to the truth. In the 
 first place, presumptions are frequently made for the mere purpose of annexing 
 a legal incident to a particular predicament of fact. If the fact B., to which a 
 particular legal consequence Is annexed, be absolutely or conditionally presumed 
 from the existence of the fact A.^ it Is obvious that the efi'ect Is to annex to the 
 fact A. the legal consequence which belongs to B. The making of such pre- 
 sumptions, and thus annexing legal consequences, Is an indirect mode of legis- 
 lation ; and in estimating the legal value of such a presumption, it Is plain that 
 the Intermediate or presumed fact may be left out of the account ; the question 
 Is, whether a legal consequence be well connected with a particular predicament 
 in fact ; in other words, whether a rule of law be wisely constituted. Thus, if
 
 744 PROOFS. 
 
 "^Artificial or legal presumptions are also of two kinds, 
 L J immediate and mediate. Immediate are those which are 
 
 from the adverse possession of an incorporeal interest in the lands of another, 
 unanswered, a grant is to be presumed, the effect is to annex ownership as an 
 incident to such adverse possession unanswered ; for the supposed grant is mere 
 fiction, or legal machinery, and the only question is, whether the legal conse- 
 quences really incident to a valid grant are well annexed to such a state of facts. 
 Again, in trover, a conversion of the plaintifi^'s property is to be inferred by a 
 jury, from the fact of a demand by the owner, and refusal on the part of the 
 defendant who is in possession of it, such refusal being unexplained. Here, 
 the predicament on which the presumption is built renders the fact presumed in 
 reality immaterial, where the defendant Avilfully withholds the plaintiff's pro- 
 perty ; it is of no importance to the real justice of the case, as between the 
 parties, to what use the defendant may have applied the property, whether he 
 has consumed the goods, or allowed them to perish in the course of nature. 
 The effect in such cases is merely to annex to one fact a legal incident annexed 
 by law to another fact, to which the former is in all respects equivalent. Such 
 presumptions are also well founded in principle where the investigation of a 
 fact is difficult and precarious, and where a general rule of practical utility can 
 be established, without occasioning positive injustice in individual instances. 
 Within this principle, all statutes of limitation, and the presumptions made 
 in analogy to them, are founded. The difiBculty of proving a debt constantly 
 increases with lapse of time, and may at last become impossible ; whilst, on the 
 other hand, the probability that he who makes no claim of payment or posses- 
 sion has a right to make it, continually diminishes. Convenience, therefore, 
 requires that at some period or other the presumption should be made, either 
 absolutely or otherwise, against the antiquated claim. And as such a rule or 
 presumption must be general in its operation, a precise and definite period must of 
 course be appointed for its operation. The great advantages of this in point of 
 policy and convenience are of the most obvious nature. The operation of such a 
 rule, whether it be absolute, or be but ^ prima facie presumption, being purely 
 artificial in its nature, may be, it is true, contrary to the fact ; but of this, a party 
 who knew the rule, and who suffers therefore merely from his own laches, has 
 no just ground for complaint. On this ground, by the Stat. 1 Jac. I. c. 11, s. 2, 
 19 Car. II. c. 6, a person who has been abroad for the space of seven years, and 
 has not been heard of within that time, is, at the expiration of it, presumed to 
 be dead : a rule of convenience, on account of the difficulty of proving the death 
 of a person under such circumstances, and attended with no positive injustice in 
 any individual case, the presumption operating only in the absence of proof to the 
 contrary. On the same principles were founded the decisions of the Roman law 
 in those nice cases which sometimes happen, where it is impossible, with any 
 approach to certainty, to decide which of two persons, who died very nearly at 
 the same time, survived the other. Cum bollo pater cum filio periisset, materque 
 filii quasi postea mortui bona vindicaret, agnati vero patris quasi filius antea 
 periisset, iJivus Iladrianus credidit, patrem prius esse mortuum : L. 9, s. 1, ff. de 
 reVj. dub. And again, Mulier naufragiocum annicolo nlio periitquiaverisimile 
 videbatur, ante matrem infantcm pcriisse, virum partem dotis retinere placuit : 
 L. 23, U". de pac. dot. ; see tit. Deatu, Vol. II. In such cases a general rule is
 
 PRESUMPTIONS. 745 
 
 *made by the law itself, directly, and without the aid of 
 
 a jury. Mediate presumptions are those which cannot be 
 
 [*745] 
 
 preferable to laborious investi<!;ation in each individual case, where the result 
 must always be subject to doubt and uncertainty. 
 
 It has been said, that the presumption of the law is better than that of man 
 (Esprit des Loix, 1. 29, c. 16), A position much too lar<fe, if it be not limited to 
 f^eneral rules of the nature above alluded to. For artificial presumptions, although 
 beneficial, as general and practical rules, are usually very uncertain and precari- 
 ous instruments for the investigation of truth in particular instances ; they are, 
 therefore, unfit to be employed where any application of the law, contrary to the 
 real fact, would be attended with positive injustice, as in criminal cases. Where 
 facts are not necessarily connected, the connecting of them by means of artificial 
 presumption must sometimes lead to error in fact. Where facts are necessarily 
 or usually connected, technical presumptions are unnecessary ; the common sense 
 and experience of mankind will lead them to the proper conclusions, giving to 
 such natural presumptions such weight as experience warrants, confirmed as they 
 are on the one hand, or impeached on the other, by the whole context of circum- 
 stances belonging to the case. It is also to be observed, that presumptions vrhich 
 tend to the actual investigation of such facts as are usually the subject of litiga- 
 tion in courts of justice, are of a very general nature, and seldom, if ever, conclu- 
 sive. Thus presumptions, and, strong ones, are constantly founded on a know- 
 ledge of mankind ; a man's motives are inferred from his acts, and his conduct 
 from the motives by which he was known to be influenced ; it is presumed, that 
 a rational agent intended the consequence which his acts naturally tended to 
 accomplish ; that he consults his own interests ; that if he pays or acknowledges 
 a debt it is really due ; that if he admits himself to be guilty of a crime, the ad- 
 mission is true ; that he does not commit a crime, or do any other act which tends 
 to his prejudice, without a motive. Presumptions of this nature, in almost every 
 case of circumstantial evidence, aiford a light which may be considered to be 
 absolutely essential to the discovery of truth ; but then they operate simply by 
 their own intrinsic efficacy, as ascertained by experience, and never so conclu- 
 sively as to form the basis of an artificial rule which is to operate invariably. 
 All natural presumptions are founded in experience ; but so infinitely are the 
 transactions of mankind complicated and varied, that such an experience of the 
 necessary or even ordinary connection between particular facts as will serve for 
 the basis of a prima facie presumption, still less of a conclusive inference, is 
 unattainable, even in the most simple instances. So far is experience from war- 
 ranting such presumptions, that it evinces their inefficacy by showing that a 
 general presumption would frequently be a fallacious one. There is no subject 
 for presumption of more ordinarry occurrence than is afforded by the prisoner's 
 recent possession of stolen goods, on prosecution for larceny ; no facts, perhaps, 
 are more closely and usually combined, in legal experience, than is the fact of 
 such recent possession of the property by the prisoner, with the fact that he 
 stole it ; yet this connection, although usual, is by no means necessary, as expe- 
 rience proves ; no artifical presumption can therefore be founded on such a con- 
 nection ; the law, it is true, recognizes it, and the judge usually comments upon 
 its nature and force ; but no artificial weight or importance is annexed to it, and 
 the juries do not convict unless they are fully satisfied and convinced of the
 
 746 PROOFS. 
 
 *made but bj the aid of a jury. Thus, the law itself pre- 
 •- -J sumes that a bond, or other specialty, was made upon a 
 
 good consideration; but the common law never presumed 
 L J *from the lapse of twenty years, without any payment of 
 interest on a bond, or acknowledgment of its existence, that it had 
 been satisfied; that presumption was left to a jury. Presumptions 
 may therefore be divided^ into three classes: 1st. Legal presumptions 
 made by the law itself, or presumptions of mere law. 2dly. Legal 
 presumptions made by a jury, or presumptions of law and fact. 
 3dly. Mere natural presumptions, or presumptions of mere fact. 
 
 First. Presumptions of mere laiv, are either absolute and conclu- 
 sive, which correspond with the prcesumptiones juris et de jure of the 
 Roman law; or like the 2yrcesu7nptio7ies juris of the Roman law, they 
 may be rebutted by evidence to the contrary. Thus, the presumption 
 of laAT, that a bond or other specialty was executed upon a good con- 
 sideration, cannot be rebutted by evidence;'' but although the law 
 
 actual guilt of the prisoner. Artificial presumptions, therefore, can never be 
 safely established as a means of proof in a criminal case. To convict an innocent 
 man is an act of positive injustice, which, according to one of the best and most 
 humane principles of our law, cannot bo expiated by the conviction of an hun- 
 dred criminals Avho might otherwise have escaped : 2 Hale 289. From such 
 presumptions the common law is justly most abhorrent ; and happily our statute 
 book has not been disgraced by many violations of the humane principles of the 
 common law in this respect. The abominable and sanguinary enactments of 
 the statute of James the First (21 Jac. I. c. 27), which made the concealment 
 of a bastard child by the mother, evidence that she mui'dered it, no longer exists. 
 But it is impossible, without a feeling of indignation, to recollect that such a 
 statute did exist as the law of this country for nearly two centuries ; the natural 
 effect of which was to leave a court and jury no other alternative than either 
 to violate their oaths, or to execute one for mui-der whom in their consciences 
 they believed to be innocent. 
 
 s So according to the Roman law, " Praesumptio conjectura est ducta ab eo 
 quod ut plurimum fit. Ea vel a Le(/e inducitur, vel a Judice. Quae ab ipsa 
 lege inducitur vel ita comparata est ut probationem contrarii hand admittat vel 
 ut eadem possit elidi. Priorem doctores prjBsumptionem juris adpellant. Quae 
 a judice inducitur conjectura praesumptio horainis adpellari solet, et semper 
 admittit probationem contrarii quamvis si alicujus momenti sit probandi onere 
 relevet: Ileineccius El. J. C, p. 4, s. 122. 
 
 *" Loioe v. Peers, 4 Burr. 2225 ; i. e. so long as the deed remains unimpeached ; 
 a bond or other specialty may be directly impeached, on the ground of fraud; 
 and then the consideration may become the subject of inquiry ; but whilst the 
 legal existence of the deed stands admitted, the presumption of a good con- 
 sideration is peremptory and absolute. After a verdict for the plaintiff, or 
 defendant, the court will presume all things necessary to support the declara- 
 tion or plea: ,SweeiappIe v. Jease, 5 B. & Ad. (27 E. C. L. R.) 27 ; Harris v.
 
 PRESUMPTIONS OF LAW AND FACTS. 747 
 
 also presumes, or intends, that a bill of exchange was accepted on a 
 good consideration, that presumption may be rebutted by proof to 
 the contrary. Thus, also, it is a presumption not to be rebutted, that 
 a child under fourteen *cannot commit a rape,' and that an 
 infant under seven cannot commit felony.'' L -' 
 
 Artificial presumptions, made by the law itself, are not in general 
 used as rules of evidence for the purpose of ascertaining doubted 
 facts ; but are, in effect, mere arbitrary rules of law, which, according 
 to the policy of the law, operates in some instances conclusively, and 
 which, in other instances again, where peremptory and absolute 
 operation would be attended with inconvenience, may be answered 
 and rebutted. The connection between mere natural facts cannot be 
 known, but from actual observation and experience; but purely arti- 
 ficial relations, such as legal incidents and consequences, the mere 
 creatures of positive law, may be indissolubly tied and connected 
 together by the rules of law. A law, or rule of law, consists in 
 nothing more than the connecting of certain consequences with par- 
 ticular defined predicaments of fact. When, therefore, the laAv pre- 
 sumes or infers any fact to which a legal consequence is annexed, 
 from any defined predicament of facts, the law in effect indirectly 
 annexes to that predicament the legal consequences which belongs to 
 the presumed fact.^ 
 
 Again, in many instances presumptions of law are but primd facie 
 
 inferences or intendments, made by the courts, liable to be rebutted 
 
 by proof to the contrary. Thus, the law will intend, or imply, that 
 
 the heir-at-law of an ancestor, who died seised of an estate, was in 
 
 possession ;™ or where a fine has been levied, will imply that it has 
 
 been levied with proclamations ;" or that the examination of *a 
 
 ... r*7491 
 
 prisoner, under a charge of felony, has been taken in writing," •- -• 
 
 Goodwi/n, 2 M. & G. (40 E. C. L. R.) 405; see Stennel v. Hogg, 1 Wins. Saund. 
 228, note. 
 
 ' R. V. Groomhridge, 7 C. & P. (32 E. C. L. R.) 582. 
 
 " 4 Bl. Com. 2;^. 
 
 ' Supra, p. 743, note (/). 
 
 "■ Watkins on Descents, ch. 1, p. 35. 
 
 ° 3 Co. 86, b. But if the intendment be rebutted, proclamations must be 
 proved, in order to bar a stranger : B. N. P. 229. The acceptance of rent from 
 a third person is not a ground for presuming a surrender : Copelaiid v. JVatts 
 and another, Exectitors of Gubbins, 1 Stark. C. (2 E. C. L. R.) 95. The non- 
 production of books upon notice merely entitles the opposite parties to give 
 secondary evidence. It does not authorize the jury to speculate upon the 
 probable contents : Cooper and another v. Gibbons, 3 Camp. C. 363. 
 
 " Tit. Ad.missions.
 
 749 PROOFS. 
 
 until the contrary of these facts be proved. Presumptions of this 
 nature may be rebutted not only by evidence to the contrary, but 
 also by contrary presumptions or intendments of law. Thus, on an 
 indictment for the non-repair of a road, the presumption that an 
 award in relief of the defendants was duly made according to the 
 directions of an enclosure act, may be rebutted by proof of repairs 
 subsequently done to the road by the defendants.^ But the presump- 
 tion in favor of innocence is, it has been held, too strong to be over- 
 come by an artificial intendment of law.*^ 
 
 Secondly, Presumptions of law and fact. — These are also artificial 
 presumptions which are recognized and warranted by the law as the 
 proper inferences to be made by juries under particular circumstances. 
 These are also founded partly upon principles of policy and conve- 
 nience, and frequently in analogy to express rules of law ; and for 
 this purpose a technical force and efficacy is given to the evidence 
 which warrants such presumption, beyond its mere natural tendency 
 to convince the mind. Two incidents are essential to presumptions 
 of this class : 1st. The inference cannot be made by the court, but 
 ought to be made by the jury. 2dly. The inference is never con- 
 clusive. 
 
 Presumptions, therefore, of this kind are very closely allied to 
 those artificial presumptions which are made by the law itself, but 
 which are in their nature inconclusive, that is, to the prcesurnptiones 
 juris of the Roman law."^ They are of a class intermediate between 
 mere artificial *presumptions made by the law itself, and 
 L -^ mere natural presumptions, which are to be made exclusively 
 by a jury. They may, therefore, not improperly be called mixed 
 presumptions, or presumptions of law and fact, partaking of the 
 nature of mere legal presumptions, in this respect, that they are arti- 
 ficial, and of the nature of mere natural presumptions, inasmuch as 
 they must be made, not by the court, but by a jury. The principle 
 and origin of this class of presumptions are usually not remote ; they 
 are for the most part instruments in the hands of the courts, by 
 which positive statutes, or rules of law, are extended by analogy to 
 cases which do not fall within their express legal operation, or by 
 means of which effect is given to rules of evident policy and conve- 
 
 P R. V. Inhabitants of Haslingfield, 2 M. & S. 558. 
 
 *• R. V. Twining, 2 B. & Aid. 386 ; and see as to the presumption that a legal 
 duty was performed: R. v. Whiston, 4 M. & G. (48 E. C. L. R.) 607; R. v. 
 Wittiqi, 5 A. & E. (31 E. C. L. R.) 191. 
 
 ' Siqyra, p. 747, note {y).
 
 [*751] 
 
 PRESUMPTIONS — NATURAL. 750 
 
 nience, which caijnot be applied directly/ Thus, a jury is required 
 or at least advised, by the court, to infer a grant of an incorporeal 
 hereditament after an adverse enjoyment for the space of twenty 
 years unanswered.'^ This is done in analogy to the Statute of Limi- 
 tations, 21 Jac. I. ; for as an adverse possession of twenty years is 
 sufficient to confer a title to the possession of the land itself, a for- 
 tiori it ought to confer a right to an interest arising out of the land ; 
 but that Statute of Limitations does not extend to this case, and 
 therefore the benefit and convenience of such a limitation was ob- 
 tained indirectly, by thus raising an artificial presumption." Pre- 
 sumptions of this nature, which depend merely on acquiescence for 
 a specific and definite period of *time, of arbitrary appoint- 
 ment, are most obviously artificial ; their operation may de- 
 pend on the lapse of a few hours, more or less. 
 
 So, in the case of trover ; an unqualified refusal to deliver up the 
 goods on demand made by the owner, does not fall within any defini- 
 tion of a conversion ; but inasmuch as the detention is attended 
 with all the evils of a conversion to the owner, the law makes it, in 
 its effects and consequences, equivalent to a conversion, by directing 
 or advising the jury to infer a conversion from the facts of demand 
 and refusal. 
 
 Thirdly. Natural presumptions, or presumptions of mere fact. 
 These depend upon their own natural force and efficacy in generating 
 belief or conviction in the mind, as derived from those connections 
 which are pointed out by experience;^ they are wholly independent 
 of any artificial legal relations and connections, and differ from 
 
 ^ For instances of the latter description, vide supra, note {f). 
 
 * Lord Tenterden's Act, 2 & 3 Will. IV. c. 71, provides fixed periods of 
 limitation in many of these cases : see tit. Prescription. 
 
 " The presumption that a bond had been satisfied after the expiration of 
 twenty years from the time when interest had been paid, or other acknowledg- 
 ments made of its existence, was built on the same principle : vide supra; pp. 
 742, 743; and see Searle v. Lord Barrington, 2 Str. 826; 2 Ld. Raym. 1370; 
 Turner v. Crisp, 2 Str. 827 ; Moreland v. Bennett, Str. 652 ; Washington v. 
 Brymer, Peake's Adv. C. 201. This case is now provided for by 3 & 4 Will. 
 IV. c. 42, s. 3, which establishes this period of limitation. 
 
 ^ These, no doubt, form the basis of numerous legal presumptions. Thus it 
 is presumed that a party will adopt acts done for his benefit : Bailey v. Culver- 
 ivell, 8 B. & C. (15 E. C. L. R.) 448. 
 
 ^ The doctrine of prescription or presumption of grant from lapse of time 
 can have no application to a case of underground waters percolating, oozing or 
 filtering through the earth : Frazier v. Brown, 12 Ohio (N. S.) 294. 
 44
 
 751 PROOFS. 
 
 presumptions of mere law in this essential respect, that those depend 
 upon, or rather are, a branch of the particular system of jurispru- 
 dence to which they belong ; but mere natural presumptions are de- 
 rived wholly by means of the common experience of mankind, from 
 the course of nature and the ordinary habits of society. Such pre- 
 sumptions are, therefore, wholly independent of the system of laws 
 to be applied to the facts when established ; they remain the same 
 in their nature and operation, whether the law of England, or the 
 code of Justinian, is to decide upon the legal effect and quality of 
 the facts when found. 
 
 Many presumptions of this class are recognized by the law, and 
 therefore, in one sense, may be termed legal presumptions, which 
 still, unless some degree of technical force and weight be given them 
 beyond their mere natural operation, are properly to be ranked in 
 this class. The recent possession of stolen goods, on a trial for lar- 
 r*7^91 ^®^y' ^^ *recognized by the law as affording a presumption 
 of guilt; and, therefore, in one sense, is a presumption of 
 law, but it is still, in effect, a mere natural presumption ; for, al- 
 though the circumstance may weigh greatly Avith a jury, it is to 
 operate solely by its own natural force, for a jury are not to convict 
 on this or any other charge, unless they be actually convinced in 
 their consciences of the truth of the fact. Such a presumption is 
 therefore essentially different from the legal presumptions in fact 
 lately adverted to, where the jury were to infer that a bond had or 
 had not been satisfied, as a few days or even hours, more or less, had 
 elapsed. 
 
 Although it be the peculiar province of a jury to deal with pre- 
 sumptions of this description, and to make such inferences as their 
 experience warrants, yet in some instances, where particular facts 
 are inseparably connected according to the usual course and order of 
 nature, and the interposition of a jury would be nugatory, the courts 
 themselves will draw the inference. Thus, on a question of bastardy, 
 where the child has been born within a few weeks after the access of 
 the husband, the bastardy of the child will be inferred without the 
 aid of a jury.^ 
 
 Presumptions of this nature are, as has already been observed, co- 
 extensive with the experience of mankind; there is in fact no rela- 
 tion whatsoever, whether natural or artificial, subject to human 
 observation, which may not be proved, where such proof is material, 
 in a court of justice, by the testimony of those who have had expe- 
 rience of that relation. 
 
 y It. V. Lvffc, 8 East 193.
 
 PRESUMPTIONS — NATURAL. 752 
 
 A mere presumption, in the proper and technical sense of the ivord, 
 is much more limited in its nature than presumptive or circumstantial 
 evidence in general. A presumption, strictly speaking, results from 
 a previously known and ascertained connection between the presumed 
 fact and the fact from which the inference is made, ""without r^ycq-i 
 the intervention of any act of reason in the individual in- 
 stance; on the other hand, circumstantial evidence, that is, indirect 
 evidence to prove a fact, may depend wholly on a process of reason- 
 ing applied to the facts of the particular case, although the mind 
 may never have experienced such a combination before. The instance 
 put by Lord Coke,'° of what he terms a violent presumption, is, in 
 reality, a case of indirect or circumstantial evidence, but not properly 
 presumption in the strict sense of the word, because the inference 
 results from an act of reason, exercised upon the facts, and not upon 
 any known and ascertained relations. The instance which he gives 
 of a violent presumption is this: "where a man is found suddenly 
 dead in a room, and another is found running out of that room with 
 a bloody sword in his hand." It is plain that in such a case con- 
 viction is wrought by an exercise of the reason upon the circumstances 
 (however small the effort) by which the mind, upon the slightest 
 reflection, excludes all guilty agents but one: the excluding force 
 and nature of the circumstances generate conviction by negativing, to 
 the satisfaction of the mind, the agency of any, but one individual. 
 It is evident that a witness who had never seen such a transaction 
 before would as readily come to the proper conclusion, as one who 
 had actually had experience of similar facts ; and consequently that 
 reason, and not any previous experience of similar associations, sup- 
 plies the inference. 
 
 In practice, however, it rarely happens that some natural pre- 
 sumption, properly so called, does not co-operate with the exercise 
 of reason on the particular circumstances to produce conviction. 
 And on the other hand, those transactions which are the subject of 
 judicial inquiry, and indeed all human dealing, present such an 
 infinite variety of circumstances, that experience alone, however 
 essential and important, as undoubtedly it is, in supplying inferences 
 *which tend to the general conclusion, can rarely simply and 
 alone, without the aid of sound reason and discretion exer- ■- ^ 
 cised upon all the circumstances, warrant a conclusion. It follows, 
 that further remarks on mere natural presumptions belong properly 
 to the head of circumstantial evidetice. 
 
 It seems to be a general rule, that wherever there is evidence on 
 
 ■^ Co. Litt. 6.
 
 754 PROOFS. 
 
 which a jury has founded a presumption according to the justice of 
 the case, the courts will not grant a new trial. In an action on a 
 promissory note, given to the plaintiff by the defendant, in conside- 
 ration of the plaintiff's marrying his daughter; the defence was that 
 the marriage was not a legal one, the plaintiff having married the 
 daughter when he was under age, and without the consent of his 
 parents or guardian. It also appeared, that when the plaintiff came 
 of age, the wife was lying on her death-bed, and that she died in 
 three weeks afterwards. The jury nevertheless presumed a subse- 
 quent legal marriage, and the court afterwards refused to set aside 
 the verdict.* But it must be borne in mind that there is a strong 
 legal presumption in favor of marriage.'' 
 
 Many of the presumptions which are recognized by the law are 
 noticed under the particular subject of evidence to *which 
 L -I they belong;" it may, however, be proper to advert to some 
 of the most general. 
 
 The law of England, as well as the civil law, presumes against 
 fraud, " odiosa et inhonesta non sunt m lege prcesumenda, et in facto 
 quod in se Jiabet et honum, et malu7n, magis de bono, quam de malo, 
 prcesumendum est."^ Thus, where bankers had been in the habit of 
 discounting bills for a person, who, on one occasion, sent his clerk 
 with the bill on which the action was brought to inform them that his 
 taking the bill from the plaintiff would depend upon their discount- 
 ing it, and to inquire whether they would discount it, and they, 
 without giving any answer to the clerk, afterwards placed the bill to 
 his credit; in an action of trover against them for the bill, it was held 
 that they must be presumed to be bond fide holders, and also that 
 they had acted honestly, and consequently it could not be presumed 
 
 * Wilkinson v. Fai/ne, 4 T. R. 468. Lord Kenyon, in that case, said the rule 
 was carried so far that he remembered an instance of it bordering on the 
 ridiculous, where, in an action on the game laws, it Avas suggested that the gun 
 with which the defendant fired was not charged with shot, but that the bird 
 might have died in consequence of fright; and the jury having found for the 
 defendant, the Court refused to grant a new trial ; see also Standen v. Standen, 
 cited 4 T. R. 469, where a marriage was presumed, although there was strong 
 evidence to show that there had not been time enough for a publication of banns 
 three times. It may, however, be very questionable whether such decisions 
 are not only contrary to sound policy, but even positively mischievous. Do 
 they not afford temptation to juries, in hard cases, to trifle with the sacred 
 obligation of an oath? And the old rule cannot now be supported: see per 
 Parke, B., Doe v. Bavies, 2 M. & W. 511 ; and tit. New Trial. 
 
 •* See Fiers v. Piers, 2 II. of L. Cases ;:531. 
 
 " Sec tit. Intention, Prescription, Custom. 
 
 <» 10 Co. .% ; and see Nick-els v. Jioss, 8 C. B. (65 E. C. L. R.) 704.
 
 PRESUMPTIONS — LEGAL. 755 
 
 that the clerk had delivered the message.® Upon this principle the 
 
 law always presumes in favor of innocence, as that a man's character 
 
 is good until the contrary appear, or that he is innocent of an oflFence 
 
 imputed to him till his guilt be proved. Where a woman married 
 
 again within the space of twelve months after her husband had left 
 
 the country, the presumption of innocence was held to preponderate 
 
 over the usual presumption of the continuance of life.^ On the 
 
 other hand, omnia prcesumuntur *contra spoliatorem. Thus, 
 
 . . . r*756"l 
 
 if a man tortiously withhold the evidence by which the nature '- -" 
 
 of his case would be manifested, every presumption to his disadvan- 
 tage would be adopted.^ 
 
 ® Middleton v. Earned, 4 Ex. 241. 
 
 '' R. V. Twyning, 2 B. & Aid. 386. But this case has been much commented 
 on in R. v. Harborne, 2 Ad. & E. (29 E. C. L. R.) 541, where it was held that a 
 man having some years before married one woman, who was shown to have 
 been alive on 17th March, 1831, and another woman on the 11th April in that 
 year, the sessions were justified in presuming the first wife to have been alive 
 and the second marriage void ; and Lord Denman, C. J., said that there was no 
 rigid presumption of law without reference to the accompanying circumstances, 
 and the presumption of innocence could not prevail against proof that the first 
 wife was alive shortly before. With respect to the general rule of the pre- 
 sumption of innocence, see Williams v. The East India Company, 3 East 192 ; 
 R. V. Hawkins, 10 East 211 ; and Lord Halifax's case, supra, pp. 593, 594. In 
 Powell V. Milburn, 3 Wils. 355 ; 2 Bl. 851 ; upon the trial of an action for 
 money had and received, in order to try the plaintiff's right to a donative, it 
 was held that it was unnecessary for him to prove at the trial, although called 
 upon to do so, that he had subscribed the articles of the church, in the 
 presence of the ordinary, or publicly read the same, or that he had sub- 
 scribed the declaration of uniformity contained in the stat. 13 & 14 Charles 
 II., c. 4. And the case of MunJce v. Butler, 1 Roll. R. 83, was cited 
 as a strong one. Monke sued for tithes ; the defendant pleaded that the 
 plaintiff had not read the articles according to the statute, and the Court con- 
 strained the defendant to prove the negative; and Coke said, that if such a 
 matter should come before him in evidence, he would presume, until the con- 
 trary should be proved, that the plaintiff had read the articles. And in Clay- 
 ton's Rep. Pleas of Assize, fol. 48, pi. 83, where the plaintiff sued for tithes 
 under the statute Edw. VI., it was held that the plaintiff should not be put to 
 prove admission, institution and induction ; and that if it was otherwise, the 
 defendant might prove it. And in ejectment by a rector or vicar, it is not 
 necessary to prove that he was in orders, for, according to Lord Holt, having 
 established his temporal title, his religious or political title was to be presumed : 
 Dr. Harcofs case, Comb. 202. And in R. v. Coombs, Comb. 57, the defendant 
 having sworn an affirmative for which an information was filed against him, the 
 Court directed that the prosecutor should first give probable evidence of the 
 negative, and that the defendant should afterwards prove the affirmative if he 
 could. 
 
 ^Armory v. Delamirie, 1 Strange 504; 1 Smith, L. C. 151, and the notes; 
 Lord Melville's case, 29 How. St. Tr. 1194.
 
 756 PROOFS. 
 
 But in general, where a person is required to do an act, the omis- 
 sion to do which would be criminal, his performance of that act will 
 be intended until the contrary be siiown.'' And, therefore, where 
 a plaintiff alleged in his declaration that the defendants, who were 
 the charterers of his ship, had put on board a very dangerous and 
 
 ^combustible commodity (in consequence of which a loss 
 r*7571 . . . 
 
 ■- -J happened), without giving due notice to the captain or other 
 
 person employed in the navigation of the vessel, it was held to be 
 incumbent on the plaintiff to prove his averment.' But when an act, 
 which in its nature is criminal, has once been proved, the law fre- 
 quently infers malice, and requires exculpatory proof from the party. 
 Thus in case of homicide, after proof that the prisoner killed the 
 deceased, the law will presume malice, until the prisoner justify or 
 extenuate the act.'' So if a man hold a market near to the legal 
 market of another, and on the same day, the former will be intended 
 to be a nuisance.' And it is presumed to be a nuisance, where there 
 is an ancient ferry from ^. to B. leading to a public highway, to 
 carry passengers from A. to 0., a short distance from B., from 
 whence they pass to the same highway.™ 
 
 It is also a maxim of law, in principle nearly allied to the former, 
 that ^'^ omnia prcesumuntur rite et solenniter esse acta, donee prohetur 
 in contrarium."^^ Thus it will be presumed that a man who has 
 acted in a public office or situation was duly appointed." 
 
 ■^ 3 East 192; and^er Lord EUenborough, R. v. Inhabitants of Hasling field, 
 2 M. & S. 561. 
 
 ' Williams v. The East India Co., 3 East 192, supra, p. 732. 
 
 ■^ Fost. 290. 
 
 ^ Yard v. Ford, 2 Wms. Saund. 172; F. N. B. 184; and see In re, Islington 
 Market Bill, 12 M. & W. 20, note. 
 
 ■" F. N. B. 180 ; Iluzzey v. Field, 2 C, M. & R. 432. 
 
 ° Co. Litt. 232. In Van Omeron v. Dowick, 2 Camp. 44, on proof that ex- 
 ported articles, which were contraband of war, had been entered at the customs, 
 Lord EUenborough presumed a license to export them : and in a case against a 
 carrier for loss of goods to be carried from Dublin to Liverpool, the importation 
 of which was illegal, and consequently the contract with the carrier void unless 
 they were entered at the custom-house, it was held that it lay on the defendant 
 to prove that they were not entered, for the presumption is, that a party com- 
 plies with the law: Sisson v. Dixon, 5 B. & C. (11 E. C. L. R.) 758 ; and see 
 Rodwell V. Hedge, 1 C. & P. (12 E. C. L. R.) 220; Doe d. Phillips v. Evans, 
 1 0. & M. 461, infra, p. 760 ; Doe v. Gore, 2 M. & W. 320 ; Manning v. Eastern 
 Counties II. Co., 1 M. & W. 237 ; R. v. Whiston, 4 Ad. & E. (31 E. C. L. R.) 
 G07. 
 
 ° See instances, supra, p. 646 ; R. v. Verelst, 3 Camp. 432 ; although the officer 
 
 ' Conolbj v. Rileg, 25 Md. 402 ; Willis v. Leiois, 28 Tex. 185 ; Wright v.
 
 PRESUMPTION S — L E G A L. 758 
 
 Upon proof of title, everything which is colhiteral to *the 
 title will be intended without proof; for although the law L J 
 requires exactness in the derivation of a title, yet when that has 
 once been proved, all collateral circumstances will be presumed in 
 favor of right. P 
 
 by acting under a special authority, different from the ordinary course of his 
 office, given him by virtue of a particular statute : Marshall v. Lamb, 5 Q. B. 
 (48 E. C. L. R.) 115. Where, in an action by an attorney for costs incurred in 
 the year 1824 in a suit in the Common Pleas, the defendant proved that the 
 plaintiff had not taken out any certificate in the year 1814 or the four following 
 years, and that he had been admitted an attorney of the King's Bench in the 
 year 1702, but had not since been re-admitted an attorney of that Court but 
 there was no pi'oof that he had not been re-admitted an attorney in the Court 
 of Common Pleas; it was held, that the plaintiff's acting as an attorney afforded 
 prima facie evidence that he was then an attorney of the C. P., and that it lay 
 on the defendant to show that he was not an attorney of that Court when the 
 business was done: Pearce v. Whale, 5 B. & C. (11 E. C. L. R.) 38 ; and see 
 further, Sevan v. Williams, 3 T. R. 635 : and infra, tit. Officer. It would 
 seem that this principle does not apply, where the officer is suing for his own 
 benefit: Smith v. Cartwright, 20 L. J., Ex. 401. A parish certificate, of the 
 date 1748, was signed only by two churchwardens and two overseers ; it appear- 
 ing from entries in visitation books long before and long after, down to the time 
 in question, that four churchwardens had always been regularly chosen, al- 
 though in twelve instances between 1683 and 1829, less than four had been 
 SAvorn in, and the visitation books for 1747 were lost ; and the sessions had 
 refused to presume a new and valid appointment of two only for the year of the 
 date of the certificate, the Court confirmed their decision: li. v. Upton Gray, 
 10 B. & C. (21 E. C. L. R.) 807. 
 
 P 6 Co. 38 ; 2 Wms. Saund. 42, d. note 7. In ejectment for a term assigned to 
 secure an annuity, the enrolment of the annuity was presumed : Doe v. Mason, 3 
 Camp. 7. Where a deed purporting to have been sealed and delivered is proved 
 to have been signed, it may be presumed to have been sealed and delivered : Talbot 
 V. Hodson, 7 Taunt. (2 E. C. L. R.) 251. A compensation awarded by a jury 
 for land taken for the purpose of a highway is presumed to include a compen- 
 sation for the burthen of holding up the fences : per Grose, J., R. v. Llaudillo, 
 2 T. R. 232. A document is presumed to have been made when it bears date, 
 where the document appears to be more than thirty years old : 6 Bing. N. C. 
 
 Hawkins, Ibid. 452 ; Phelps v. Ratcliffe, 3 Bush 334 ; Todemier v. Aspinwall, 
 43 111. 401 ; Rosenthal v. Renick, 44 Ibid. 202 ; McNorton v. Akers, 24 Iowa 369 ; 
 McCutchin v. Piatt, 22 Wis. 561 ; Smith v. Jordan, 13 Minn. 264 : Comm v. 
 Blood, 97 Mass. 538 ; Barnard v. Heydrick, 49 Barb. 62 ; Kelly v. Green, 3 P. 
 F. Smith 302; Lackaioanna Iron Co. v. Fales, 5 Ibid. 90; Reynolds v. Nelson, 
 41 Miss. 83 ; Shehan v. Davis, 17 Ohio St. 571 ; Hall v. Kellogg, 16 Mich. 135 ; 
 Trinity Church v. Higgins, 4 Rob. 1 ; TJ. S. v. Weed, 5 Wall. 62 ; Jones v. Mun- 
 back, 26 Tex. 235 ; Anderson v. Sutton, 2 Duvall 480; Niantic Bank v. Dennis, 
 37 111. 381. The law presumes the due performance of official duty: Wood v. 
 Terry, 4 Lans. 80.
 
 759 PROOFS. 
 
 r*7'^Q1 *^^ therefore a man declare upon a grant or feoffment, 
 attornment will be intended,** even although a deed be essen- 
 tial to such collateral matter ex provisione hominis, for this is but 
 the private act of the parties, and is not allowed to control the judg- 
 ment of the law, which intends all collateral matters/ But it is 
 otherwise, although the matter be but collateral, if a deed be essential 
 to such collateral matter ex institutione legis.^ 
 
 So, where one who suffered a recovery had power to do it, it will 
 be presumed that it was done with all the legal requisites.* So, it 
 is always inferred that the records of a court of justice have been 
 correctly made," that judges and juries do nothing maliciously,'' 
 and that the decisions of a court of competent jurisdiction are Avell 
 founded.^ The court will not presume any fact to vitiate an order 
 of removal.'' Upon the same principle, the courts, after verdict, will 
 presume that facts, without proof of which the verdict could not 
 have been found, were proved, although they were not alleged, pro- 
 vided upon reasonable intendment these facts can be considered as 
 included in the general terms used ;^ where an order of bastardy 
 r*T(n P^^poi'ts to have been made on the evidence of the *mother 
 who is a married woman, and on other evidence, the court, 
 
 (37 E. C. L. R.) 301 ; Davies v. Loivndes, 6 M. &. G. (46 E. C. L. R.) 528 ; and 
 also even where it is of recent date : Anderson v. Weston, 6 Ring. N. C. (37 E. 
 C. L. R.) 296; Smith v. Battens, 1 M. & Rob. 341 ; Doe v. Stillwell, 8 A. & E. 
 (35 E. C. L. R.) 645; Potez v. Glossop, 2 Ex. 191; Sinclair v. Baggaley, 4 M. 
 &W. 312; Maljias V. Clements, 19 L. J., Q. B. 435; Morgan v. Whitmore, & 
 Ex. 716. But doubt has been expressed in the latter case as to the soundness 
 of this presumption. It is otherwise in an action for criminal conversation, 
 where the letters of the wife to the husband are produced to show the terms on 
 which they lived ; there some evidence must be given to show when they were 
 written : Trelawney v. Coleman, 1 B. & Aid. 90 ; Wilton v. Webster, 7 C. & P. 
 (32 E. C. L. R.) 198 ; and so where documents are produced to prove the 
 existence at a given time of a debt to support a fiat : Wright v. Lainson, 2 M. 
 & W. 739. 
 
 •J Ferrers v. Wignal, Cro. Eliz. 401. So livery where a feoffment is pleaded 
 is implied : Plowd. 149 ; 1 Wms. Saund. 228, a, note (e). 
 
 "■ BcUami/s case, 6 Co. 38. " Ibid. 
 
 '2 Saund. 42 «, (7). 
 
 " Read v. Jackson, 1 East 355; see Lord Carnarvon v. Villebois, 13 M. & W. 
 313. 
 
 * Per Eyre, B., 1 T. R. 503. 
 
 y See tit. Judgment. lies judicata pro veritate accipitur ; L. 207, ff. de reg. jur. 
 
 * R. v. Stockton, 5 B. & Ad. (27 E. C. L. R.) 546. 
 
 " Spiers v. Parker, I T. R. 141 ; R. v. Twining, 2 B. & Aid. 386 ; Tehhutt v. 
 Selhu, 6 A. & E. (33 E. C. L. R.) 786 ; see 1 Wms. Saund. 220.
 
 PRESUMPTIONS — LEGAL. 760 
 
 in support of the order, will intend that the other evidence was 
 legal evidence.'' So, it will be presumed, till the contrary be shown, 
 that a child born in wedlock is legitimate, for the maxim of law is, 
 ''''Pater est quern nuptice de77ionstrant ;''" that the signatures in parish 
 registers are those of the person whose duty it is to sign them f that 
 a rate is equally made.® So, on a return to a mandamus, which on 
 the face of it is certain, the court will not intend facts inconsistent 
 with it, but will intend in favor of the return and not against it/ So, 
 that an estate was sold in the manner directed by a statute.^ 
 
 But notwithstanding the general presumption, omnia rite esse acta, 
 positive proof may still be necessary, if any counter presumption be 
 raised by the circumstances. Thus, where the inhabitants of Hasting- 
 field, in defence of an indictment against them for not repairing a 
 highway, gave in evidence an award by commissioners under an En- 
 closure Act, made sixteen or seventeen years ago, by which they 
 awarded that the highway was not within the parish, but it appeared 
 that the defendants had repaired it ever since, it was held, that the 
 usage raised a presumption that proper notices had not been given 
 according to the Act.** 
 
 Some of the most important presumptions, founded on lapse of time 
 and length of enjoyment, have already been alluded to.' Where the 
 existence of a particular subject-matter or relation has once been 
 proved, its continuance is presumed till proof be given to the con- 
 trary, or till a different presumption be afforded by the very nature 
 of the subject-matter.'' Thus, it is to be *presumed, within r*7/:^-|-| 
 certain limits, that a person once proved to have existed still 
 exists.' This presumption ceases at the expiration of seven years 
 from the time when the person was last known to be living :"^ but 
 
 i" R. V. Bedell, Andr. 8. 
 
 " See tit. Bastardy. But a child born during a divorce a mensd et thoro, is 
 presumed to be illegitimate : St. George's v. St. Margaret's, 1 Salk. 123. 
 
 * Taylor v. Cooke, 8 Price 653. 
 
 ^ See tit. Rate. 
 
 ^Pe/'Buller, Doug. 158. 
 
 e Doe V. Evans, 1 Cr. & M. 450 ; Doe v. Gore, 2 M. & W. 320. 
 
 '' R. V. Halsingjield, 2 M. & S. 558 ; Middleton v. Earned, 4 Ex. 241, supra, 
 p. 755. 
 
 ' Supra, p. 742 ; and see tit. Prescription. 
 
 ^ See Lord Ellenborough's observations in Doe v. Palmer, 16 East 55, as that 
 a pauper proved to have been settled in a parish continues settled there : R. v. 
 Tanner, 1 Esp. 306. 
 
 ' Throgmorton v. Walto7i, 2 Roll. Rep. 461. 
 
 ^ See tit. Death ; and see the stat. 19 Car. II., c. 6, as to lessees for lives, and
 
 761 PROOFS. 
 
 there is no legal presumption as to the particular time of death 
 during that interval." So, where two or more have been proved to 
 be partners, it is to be presumed that the partnership afterwards sub- 
 sists, unless the contrary be shown." And the same presumption 
 seems to exist, that an agent who has long been known to have acted 
 for his principal continues to be authorized so to do.^ Upon an in- 
 dictment for a libel against Lord St. Vincent, as first lord of the 
 admiralty, after proof of his appointment by patent previous to the 
 publishing of the libel, it was held to be evidence that he was so at 
 the time of publication, and that proof of the determination of the 
 appointment lay on the defendant. 'i 
 
 Where a party holds over after the determination of a lease, 
 an agreement is presumed to hold on the same terms, so far as 
 they are applicable,"^ in the absence of evidence of any other agree- 
 ment.^ 
 
 r^rincyi. Most important presumptions are derivable from the *con- 
 duct of parties, as well in civil as criminal proceedings. If 
 circumstances induce a strong suspicion of guilt, and where the ac- 
 cused might, if he were innocent, explain those circumstances con- 
 sistently with his own innocence, and yet does not offer such expla- 
 nation, a strong natural presumption arises that he is guilty. And 
 in general, where a party has the means in his power of rebutting 
 and explaining the evidence adduced against him, if it does not tend 
 to the truth, the omission to do so furnishes a forcible inference 
 against him. 
 
 Presumptions from a man's conduct operate, as has been seen, in 
 the nature of admissions ; for, as against himself, it is to be pre- 
 
 the stat. 6 Anne, c. 18. Marriage and the birth of a child cannot be presumed, 
 although the alternative is to presume death without issue : Doe d. Oldham v. 
 Wolle;/, 8 B. & C. (15 E. C. L. R.) 22. 
 
 ■> Doe dem. Kniyht v. Nepean, 5 B. & Ad. (27 E. C. L. R.) 87 ; 2 M. & W. 895 ; 
 s. c. in Cam Scacc. 
 
 " See tit. Partners. 
 
 P Trueman v. Loder, 11 A. & E. (39 E. C. L. R.) 589. 
 
 172 . V. Budd, 5 Esp. C. 230. 
 
 ■■ Ditjbi/ V. Atkinson, 4 Camp. 275 ; Roe v. Ward, 1 11. B. 97 ; Roberts v. 
 Haywurd, 3 G. & P. (14 E. C. L. R.) 432 ; Doe v. Amey, 12 Ad. & E. (40 E. C. 
 L. R.) 476 ; Doe v. Dohell, 12 Q. B. (64 E. C. L. R.) 806. Even against the 
 successor of a dean and chapter who granted the original lease : Doe v. Taniere, 
 12 Q. B. (64 E. C. L. R.) 998; and though the rent be altered: Button v. 
 Warren, 1 M. & W. 475. As to whether this is a presumption of law or fact, 
 see Johnson v. St. Peter, Hereford, 4 Ad. & E. (31 E. C. L. R.) 520. 
 
 • Mayor of Thetford v. Tyler, 8 Q. B. (55 E, C. L. R.) 95.
 
 PRESUMPTIONS. 762 
 
 sumed that a man's actions and representations correspond with the 
 truth.* These are in all cases evidence of the fact ; and where the 
 party has wilfully induced another to act on the faith of such repre- 
 sentations, and where he cannot show the contrary, without being 
 guilty of a breach of good faith and common honesty, such repre- 
 sentations are usually not barely evidence of the fact, but are abso- 
 lutely conclusive." 
 
 Numerous and most important presumptions are founded merely 
 on the common and ordinary experience of mankind; as that a man 
 will not pay a debt which is not due f or acknowledge the existence 
 of a debt to which he is not liable. That every man contemplates 
 and intends the natural consequence of his act.^ 
 
 *Many again are derived from the course and habit of r^Ypq-i 
 dealing in a particular trade or business ; as that the parties 
 intended to contract according to the usual course of dealing.^ 
 Other presumptions are made from the ordinary course of public 
 departments,'^ as that a letter properly directed and sent by the post,*" 
 or given to the postman," reached its destination. 
 
 It would, however, be a vain endeavor to attempt to specify the 
 numerous presumptions with which the knowledge of a jury, 
 
 * See tit. Admissions. 
 
 » Pickard v. Sears, 6 A. & E. (33 E. C. L. R.) 469 ; Freetnaii v. Cooke, 2 Ex. 
 654. If A rent lands of B, the incumbent of a living, and pay him rent, he 
 cannot show, in defence of an action for use and occupation, that the presenta- 
 tion was simoniacal : Coo key. Luxley, 5 T. R. 4. 
 
 * " Presumptionem pro eo esse qui accepit, nemo dubitat, qui enim solvit nun- 
 qiiam ita re supinus est, ut facile suas pecunias jactet et indebitus ejfundat:''^ L. 
 25, ff. de probat. 
 
 y See tit. Intention, Malice. In P, v. Sheppard, R. &R. C. C. 169, the pri- 
 soner was employed by Mordey, to buy stock for him, and he advanced him 
 money so to do : the prisoner forged the stock receipt, and was convicted of so 
 doing with intent to defraud Mordey, although the latter swore that he believed 
 he had no such intention. So fi-om the fact of killing another the law presumes 
 malice : Fost. 256 ; as it also does from the fact of publishing a libel : Haire v. 
 Wilson, 9 B. & C. (17 E, C. L. R.) 643; from the absence of probable cause 
 for a criminal prosecution : Burley v. Bethune, 5 Taunt. (1 E. C. L. R.) 583 5 
 Crozer v. Pilling, 4 B. & C. (10 E. C. L. R.) 26 ; and from knowingly making a 
 false representation, whereby another is injured: Tapp v. Lee, 3 B. & P. 367 ; 
 Pontifex v. Bignold, 3 M. & G. (42 E. C. L. R.) 63 ; see Fountain v. Boodle, 3 
 Q. B.'(43E. C. L. R.) 5. 
 
 ^ Supra, p. 710 ; and see tit. Custom. 
 
 " See Van Omeron v. Dowick, stipra, p. 757. 
 
 " Walter v. Haynes, R. & M. (21 E. C L. R.) 649 ; p. 721. 
 
 « Skilbeck V. Garbett, 7 Q. B. (53 E. C. L. R.) 846.
 
 763 DUTY OF THE COURT. 
 
 conversant in the common affairs and course of dealing in society, 
 necessarily supplies them ; it is obvious that such presumptions are 
 co-extensive with the common experience and observations of man- 
 kind."^ 
 
 *CHAPTER 11. 
 
 [*764] 
 
 DUTY OF THE COURT. 
 
 It is the undoubted province of the court, not only to expound 
 the law as applicable to the facts,^ but also to decide upon all inter- 
 locutory matters which arise collaterally in the course of the trial.^ 
 Previous to a few remarks upon the distinction between law and fact, 
 it will be convenient to consider more particularly the process by 
 which the law is applied to facts. 
 
 So infinitely varied and complicated are human affairs that no 
 code of law can provide a priori for all possible predicaments 
 which may happen ; all that can be done is to annex consequences 
 and incidents to certain defined combinations of circumstances 
 described in general terms, capable of being applied to such par- 
 ticular modes or predicaments as may occur in practice. In order, 
 then, to establish a claim or charge, circumstances must be alleged 
 which show that the claim or charge is warranted in point of law, 
 supposing those allegations to be true. In other words, the alle- 
 
 ^ For other observations connected with the subject, see Ind. tit. Presumption. 
 Although the owner is liable to the master for money actually laid out for the 
 benefit of the ship, yet he is not liable to a stranger for money advanced, un- 
 less it be expressly advanced for that purpose: Thacker v. Moates, 1 M. & Rob. 
 79. The declarations of a shopman are not evidence against his employer, un- 
 less made in the course of his employer's business: Garth v. Howard, 8 Ring. 
 (21 E. C. L. R.) 451. But in an action for freight by the master, the declara- 
 tions of the owner were admitted as evidence for the defendant : Smith v. Lyo7i, 
 3 Campb. 405, Ellenl)orough, C. J. 1813. 
 
 * After the jury are charged, they can only state a question and receive the 
 law from the court ; the court therefore refused to permit them to have a law 
 treatise on the subject, which had been cited : Burrows v. Unwin, 3 C. & P. (14 
 E. C. L. R.) 310. 
 
 ^ See Hale's P. C. 300 ; Sid. 235; Goodman v. Cotherington, Sty. 233 -, Ben- 
 nett v. Hundred of Hertford, Tri. per Pais, 209 ; Anon., Salk. 405 ; B. N. P. 
 308; Kitchen v. Mainwarimj, cited And. 321.
 
 QUESTIONS OF LAW AND FACT. 764 
 
 gatioiis upon the record are nothing more than a specification of 
 facts and circumstances which in point of law are essential to 
 support the charge or claim. Thus, on a charge of larceny, the 
 indictment alleges all the particulars essential to the offence, a 
 caption, and an asportation of * specific property belonging ^^„n.r-, 
 to a particular owner with a felonious intention. Now, with ^ -^ 
 respect to every essential allegation, although the jury must find 
 the facts, it is always for the court to decide whether those facts, 
 when proved, support the allegations in points of law. Thus, in the 
 case of larceny, the jury must decide upon the evidence whether 
 the prisoner removed at all the goods alleged to be stolen, and how 
 far, and under what circumstances, he removed them ; but whether 
 such a removal be an asportation, sufficient to constitute felony, is 
 pure matter of law. Hence, in order to substantiate every charge 
 or claim as alleged on the record, it is essential that the jury 
 should find some predicament or state of facts falling within the 
 description contained in each essential allegation, and that the court 
 should adjudge such special modes or fiicts to be suflBcient in law to 
 sustain those allegations. This must be done in one or other of 
 two ways: either the court must inform the jury hypothetically, 
 that the facts which the evidence tends to prove will, if proved, satisfy 
 the allegations, being but particular modes which fall within the 
 essentials enumerated in the general definition, or the jury must find 
 those predicaments or modes specially, and then the court can after- 
 wards apply the law, and pronounce Avhether the facts proved be, or 
 be not such as satisfy the general and defined essentials to the charge 
 or claim. 
 
 It is obvious, that in order to enable the court afterwards to 
 apply the law to the facts, the jury must find, not merely evidence 
 or circumstances which tend to prove or disprove facts falling within 
 the particulars which are essential to support the charge or claim, 
 but must either find particular modes included within the descrip- 
 tion, or such facts as negative one or more of the circumstances 
 essential to the charge or claim. Thus, if in the case of larceny, 
 the jury were to find specially, that the prisoner took the goods de- 
 scribed in the house of A. B. with the intention of stealintr them, 
 removed them for the space of one hundred yards; and that A. B., 
 the alleged owner, had *a special property in them as a 
 bailee ; then, as the finding would embrace facts which were •-' ''^"J 
 special modes falling within each of the descriptive allegations 
 essential to the offence, the court would be enabled afterwards to
 
 766 PROOFS — DUTY OF THE COURT. 
 
 apply the law by pronouncing the prisoner to be guilty. So, if, on 
 the other hand, the jury were in such case to find, inter alia, that a 
 bale of goods was taken by the prisoner and removed, but that it 
 still remained connected with the shop from which it was taken by a 
 rope or chain, such a finding would negative every mode or species of 
 asportation, and the court would pronounce accordingly." But again, 
 if the jury were in such case to find mere evidence,^ however cogent, 
 of any of the essential facts, the court could not draw the conclusion. 
 Thus, if they were to find, that immediately after the goods were 
 missed the prisoner was seized with the goods in his possession, and 
 that he confessed that he was guilty, this might be abundant evidence 
 to prove his guilt, but would be mere evidence,^ and the court could 
 pronounce no judgment.^ 
 
 <= See B. V. Phillips, East, P. C. 662. 
 
 ^ In a special verdict, all the facts must be found on which the judgment is 
 founded, and not mere evidence of facts : Hubbard v. Johnstone, 3 Taunt. 209. 
 But where a special case is reserved, if the circumstances be such as to enable 
 the court to say, without difficulty, what ought to be the verdict of the jury upon 
 them, the court is at liberty to decide the question : Thompson v. Giles, 2 B. & 
 C. (9 E. C. L. R.) 422. And in general it is agreed, on a special case, that the 
 court shall be at liberty to draw the same inferences from the facts as a jury. 
 Great objection has been raised, under such circumstances, to the case being 
 afterwards turned into a special verdict : Ungstrom v. Brightman, 5 C. B. (57 
 E. C. L. R.) 419. 
 
 * So, where in trover the jury merely find a demand and refusal without ex- 
 pressly finding a conversion, or any fact which in point of law amounts to an 
 actual conversion, the court can give no judgment : Mires v. ^olebay, 5 Mod. 244. 
 In Harwood v. Goodright, Cowp. 87, the jury found, that after the will had been 
 executed by a testator, in favor of Harwood, he executed another will, the con- 
 tents of which were unknown ; and it was contended by the heir-at-law that this 
 amounted to a revocation. Lord Mansfield, in giving judgment, said, " In con- 
 sidering this special verdict, the duty of the court is to draw a conclusion of law 
 from the facts found by the jury, for the court cannot presume any fact from the 
 evidence stated. Presumption, indeed, is one ground of evidence. But the court 
 cannot presume any fact. In case the defendant had been proved to have de- 
 stroyed this last will, it would have been a good ground for the jury to find that 
 this was a revocation : but the jury, on the presumption, must have found the 
 fact. So with regard to all other circumstances, as that the will was in the hands 
 of the heir at-law, and that there were three attesting witnesses to the will, these 
 would have been proper for the jury to have considered, but we are confined by 
 the facts found by them." 
 
 Mt is a well-settled doctrine of the courts, both in England and this country, 
 that a special verdict must find facts — not merely state the evidence from which 
 facts may be inferred. It will not be helped by intendment. Every fact not 
 ascertained by it, is supposed not to exist : Brown v. Ralston, 4 Rand. 504 ; Lee
 
 QUESTIONS OF LAW AND FACT. 767 
 
 *Where a general verdict is given, the same process occurs j-^-p--, 
 at the trial; the jury decide what facts are proved, and re- 
 ceiving and applying the law expounded by the court, as the court 
 would have applied it had the jury found the facts simply, pronounce 
 a general verdict involving both law and fact. 
 
 It has been frequently doubted, whether a particular question be 
 one of law or o^ fact. Thus far is clear, that whenever upon particu- 
 lar facts found, the court, by the application of any rules of law can 
 pronounce on their legal effect, with reference to the allegations on 
 the record, such inference is matter of law. It is also clear, that 
 whenever the court cannot pronounce on the legal effect of particular 
 facts, and where it is requisite, to enable them to do so, that the jury 
 should find some other inference or conclusion, such further inference 
 or conclusion is a question of fact. It is most emphatically true, that 
 a jury can decide matters of fact only ;^ they may indeed apply the 
 law as delivered by the court, but in this respect they act merely 
 ministerially, under the direction of the court. 
 
 Every general verdict, and indeed every allegation on the record 
 found by a jury to be true, involves matter of law as well as matter 
 of fact ; for it is always a question of law, whether the particular 
 facts proved satisfy the allegations upon the record. Every legal 
 definition and allegation, *and every general verdict, involves 
 both law and fact. Thus, in the simplest case, if the issue *- ^ 
 
 '' Bishop of Meath v. Marquis of Winchester, 4 CI. & F. 445 ; 3 Bing. N. C. 
 (32 E. C. L. R.) 183. 
 
 V. Campbell., 4 Post 198 ; Seaward v. Jackson, 8 Cow. 406 : Thompson v. Farr, 
 
 1 Speers, 93 ; Sewall v. Glidden, 1 Ala. 52 ; Hill v. Covell, 1 Comst. 522 ; Sisson 
 V. Barrett, 2 Comst. 406 ; Lanyley v. Warner, 3 Ibid. 327 ; State v. Watts, 10 
 Ired. 3''9; Blake v. Davis, 20 Ohio 321 ; John v. Bates, Litt. Sel. Cases 106 ; 
 Wetland Canal Co. v. Hathaway , 8 Wend. 480. So, where it does not find in the 
 alternative according as the opinion of the court upon the law may be : Slate v. 
 Wallace, 3 Ircd. 195. If the jury in a special verdict find facts only, the court 
 must draw the legal conclusion from them ; and if they draw conclusions against 
 the law upon the face of them, the court will reject the conclusion and judge 
 upon the facts. Where the jury find only such facts as leave the question of 
 law equivocal, and then draw a conclusion which the facts not found might have 
 warranted, the court will say that their conclusion is against law : Butler v. 
 Hopper, 1 Wash. C. C. 499 ; Peterson v. U. S., 2 Ibid. 36. Where a verdict is 
 for any reason bad, the court will award a venire de novo : Bellows v. Hallowell, 
 
 2 Mas. 31 ; Stodder v. Puicell, 1 Stew. 287; Seicall v. Glidden, 1 Ala. 52. An 
 agreed case, in the nature of a special verdict is to be considered as a special 
 verdict found by a jury, and if it be defective in substance, the judgment ren- 
 dered upon it will be reversed, and a venire de novo awarded : Whitesidea v. 
 Russell, 8 W. & S. 44.
 
 768 PROOFS — DUTY OF THE COURT. 
 
 be whether A. assaulted B., it involves a question of law as well as 
 of fiict : what A. did is a question of fact ; whether what he so did 
 amounted in law to an assault, is a question of law. Still the question 
 for the jury is one of mere fact, for upon the advice of the court they 
 find a general verdict, applying the law to the facts proved ; or they 
 find the facts, and the court afterwards applies the law.^ 
 
 Hence, it follows, that a question or inference of fact, is one Avhich 
 the jury can find upon the evidence by virtue of their own know- 
 ledge and experience, without any legal aid derived from the court ; 
 and that an inference or conclusion of law, is one which the court can 
 draw from the mere circumstance of the case as ascertained by a 
 jury, independently of any general inference or conclusion drawn by 
 the jury. 
 
 In ordinary cases this distinction is perfectly clear ; but it is now 
 necessary to advert to a class of cases in which doubt has arisen, 
 whether particular questions and inferences belong more properly to 
 the court or to the jury. 
 
 This occasionally happens where some general inference or con- 
 clusion is to be drawn from a number of particular facts and circum- 
 stances appertaining to the individual case ; as in the instances of 
 reasonable time, probable cause, due diligence, and others of a similar 
 nature. 
 
 It will be proper to consider the origin and nature of these ques- 
 tions a little more particularly. Every law, it has been observed, 
 consists in the annexation of certain legal incidents to particular 
 combinations of facts. Such definitions of necessity must be of a 
 general and abstract nature. No human sagacity can, in framing 
 laws, provide specifically for the almost infinite variety of cases 
 Avhich occur in practice ; and therefore all that can be done in 
 
 *many instances is to define, not by an enumeration of facts, 
 
 r*7691 • • 1 
 
 ^ ' -' which, in cases depending on a great variety of minute and 
 
 varying circumstances would be impracticable, but by means of some 
 general result or inference from them, as in the instances above al- 
 luded to, of reasonable time, due diligence, &c. 
 
 For instance, the law cannot prescribe in general what shall be a 
 reasonable time, by any defined combinations of facts. So much does 
 the question depend upon the situation of the parties, and the minute 
 and peculiar circumstances incident to each case. If a man has a 
 right, by contract or otherwise, to cut and take crops from the land 
 
 8 An jillcg.ition of duty is an allegation of matter of law: R. v. Everett^ 8 
 B. & C. (15 E. C. L. 11.) 114.
 
 QUESTIONS OF LAW AND FACT. 769 
 
 of another, the law, it is obvious, can lay down no rule as to the 
 precise time when they shall be cut and removed ; all that can be 
 done is to direct or to imply that this shall be done in a reasonable 
 and convenient time; and this must obviously depend on the state of 
 the weather and other circumstances which cannot from their nature 
 form the basis of any legal rule or definition.'' 
 
 *General terms then, such as reasonable time,' and (-*77a *77ii 
 others of a similar nature, being technical and legal *ex- 
 
 '' Eaton v. Soiithhy, Willes 131, where the plaintiff in replevin pleaded to an 
 avowry, justifying the taking goods as a distress for rent in arrear, that he took 
 the growing crops under an execution, and afterwards cut the wheat, and let 
 the same lie on the premises until the same in a course of husbandry was fit to 
 be carried away ; and that the defendant distrained the same before it was fit 
 to be carried away ; it was objected by the defendant, on demurrer to this plea, 
 that the plaintifi"ought to have set forth how long the corn lay on the land after 
 it was cut, that the court might see whether it were a reasonable time or not. 
 But the court decided that the objection was untenable ; for though in Co. Litt. 
 56, b., it is said that in some cases the court must judge whether a thing be 
 reasonable or not, as in the case of a reasonable fine, a reasonable notice, or the 
 like, it would be absurd to say, that in a case like the present the court must 
 judge of the reasonableness; for if so, it ought to have been set forth in the 
 plea, not only how long the corn lay on the ground, but what weather it was 
 during that time, and many other incidents which would be ridiculous to be 
 inserted in a plea. And the court were of opinion that the matter was suffi- 
 ciently averred ; and that the defendant might have traversed if he had pleased, 
 and then it would have come before a jury, who, upon hearing the evidence, 
 would have been the proper judges of it. 
 
 So in the case of Bell v. Warden, Willes 202, where the defendant in trespass 
 justified under an alleged custom, for the inhabitants of a town to walk and 
 ride over a close of arable land, at all seasonable times, it was held, that sea- 
 sonable times, was partly a question of fact, and partly a question of law ; and 
 on demurrer to the replication of de injuria, the court said, as the custom is 
 laid here, if it were not a seasonable time, the justification is not within the 
 custom ; and though the court may be the proper judges of this, yet in many 
 cases it may be proper to join issue upon it, that is, in such cases where it does 
 not sufficiently appear on the pleadings whether it were a seasonable time or 
 not. Accoi'dingly, it is said, in the case of Hobart v. Hammond, 4 Rep. 27, that 
 the reasonableness of fines must be determined by the judges, either on de- 
 murrer or on evidence laid before a jury. For issues may be joined on things 
 which are partly matters of fact, and partly matters of law ; and then when 
 the evidence is given at the trial, the judge must direct the jury how the law 
 is ; and if they find contrary to such direction, it is a ground for a new trial. 
 This is the proper course in actions for malicious prosecution, with respect to 
 the question of reasonable and probable cause {Panton v. Williams, 2 Q. B. 
 (42 E. C. L. R.) 169), which is discussed separately, infra, pp. 781, 782. 
 
 ' Although time be a necessary ingredient in almost every contract and legal 
 obligation, yet inasmuch as the time for performing an act must depend upon 
 45
 
 771 PROOFS — DUTY OF THE COURT. 
 
 pressions, it is clear, in the first place, that in the abstract they in- 
 volve matter of law as well as matter of fact; for in the application 
 of all legal expressions, it is a question of legal judgment and dis- 
 cretion to pronounce whether the facts as found bj a jurj do or not 
 r*7791 ^^t^^fy ^^^^ legal expression or allegation.'' It is therefore *in 
 all cases for the court to pronounce whether the facts show 
 
 a great number of varying circumstances, the law cannot lay down precise 
 rules applicable to all cases, or do more than prescribe generally a reasonable 
 time. 
 
 And in general, questions of reasonable time, reasonable care, due diligence 
 {per Tindal, C. J., Mellish v. Raicdon, 9 Bing. (23 E. C. L. R.-) 423; Shute v. 
 Robins, M. & M. (22 E. C. L. R.) 133, and such like, depend so much on their 
 own peculiar circumstances as not to admit conveniently of any general rules ; 
 and it is of greater convenience to depend on the judgment and discretion of a 
 jury, deciding on the comparison of the circumstances with the ordinary course 
 of practice, or with reference to the ordinary principles of fair and honest deal- 
 ing, than to introduce such a multiplicity of legal rules and definitions as would 
 be necessary for the due decision of cases subject to such infinite variety of 
 circumstances. It is in truth a matter of important and obvious policy, rather 
 to refer questions of this nature as matters of fact to a jury, than to frame legal 
 rules applicable to particulars. The difficulty of framing precise rules must, 
 in such instances, be very great, by the reasons adverted to, unless they be 
 founded on some prominent and decisive incidents ; whenever the court decided 
 upon circumstances, the decision would become a precedent and rule of law ; 
 and as each decision would afford room for comparison for a great number of 
 distinctions, the obvious effect would be to multiply such decisions and distinc- 
 tions to a very inconvenient and burdensome extent. On the other hand, by 
 abstaining from legal decision, except in cases where some decisive rule or prin- 
 ciple of law is clearly applicable, and by adopting in others the inference 
 of the jury, in point of fact, substantial justice is administered in simplicity, 
 and free from the perplexity occasioned by nice and subtle distinctions and 
 conflicting decisions. And this is an advantage, and by no means an unimpor- 
 tant one, incident to the system of trial by jury ; the law can thus deal in 
 general definitions, and leave the rest as facts to the jury, without multiplying 
 decisions and precedents ; but if the judges and not the jury were to decide, 
 every decision would become a precedent, and legal distinctions would be mul- 
 tiplied to an excessive extent. 
 
 ^ The question, whether the facts of a particular case fall within the general 
 terms of a statute, is (at least usually) a question of law, whether the statute 
 define the meaning of its own terms, or use them without definition, according 
 to their ordinary acceptation and meaning. If a special verdict involve the 
 question whether a party be a bankrupt, it is not essential that the jury should 
 draw the conclusion ; the courts may do it from the facts found : Dodswoi'th 
 v. Anderson, Jon. 142. So if the question be whether the party be a chap- 
 man within the stat. 5 Ann. c. 14: Kearle q. t. Boulter, Say. 1*.H ; Bac. Ab., 
 tit. stat. II. 
 
 The rule applies to all statutory expressions, and to all allegations in issue,
 
 QUESTIONS OF LAW AND FACT. 772 
 
 that the time was reasonable; just as it is for the court to decide 
 whether the facts found show an alleged asportation or conversion, or 
 bankruptcy, in point of law.' 
 
 But in- particular cases the inference in law follows the inference 
 in fact; where the court cannot draw the inference that the time was 
 reasonable, the jury must draw the conclusion in fact; and then the 
 time will be reasonable in point of law, according as it is reasonable 
 in point of fact. 
 
 Hence it follows that the test for deciding whether *such r:f:'77Q-| 
 a general inference as to reasonable time, &c., be one of law 
 or of fact, is this : if the court, in the particular case, can draw the 
 conclusion by the application of any legal rules or principles, the 
 conclusion is a legal one;'" for the rules and principles of law must 
 
 however common and popular their sense and meaning may be. Thus, where 
 the issue was, whether C. D. was an inferior tradesman (under the stat. 4 & 5 
 Will. III. c. 23, s. 10, now repealed), although it was for the jury to find whether 
 C. D. was a tradesman, and to ascertain the nature and kind of trade, it was 
 for the court to decide whether he came within the description in the statute : 
 Buxton V. Mingay, 2 Wills. 70 ; see tit. Trespass. 
 
 Executors shall have reasonable time to take the goods of their testator from 
 his mansion : Litt. s. 69. This reasonable time shall be adjudged by discretion 
 of the justices before whom the cause dependeth. And so it is of reasonable 
 fines, customs and services, upon the true state of the case depending before 
 them ; for reasonableness in this case belongeth to the wisdom of the law, and 
 therefore to be decided by the justices. Quam lojigum esse debet non definitur 
 ill Jure, sed pendet ex discretione justiciariorum. And this being said of time, 
 the like may be said of things uncertain, which ought to be reasonable, for no- 
 thing that is contrary to reason is consonant to law: Co. Litt. 56, b. Six days 
 were held by the court to be a reasonable time for removing the goods of a 
 lessee for life by his executors after his death : Stodden v. Harvey^ Cro. J. 204. 
 Power is given to the lessor's son to take the house to himself on coming of 
 age ; he must make his election within a reasonable time ; a week or fortnight 
 is reasonable ; a year is unreasonable : Doe v. Smith, 2 T. R. 436. A reason- 
 able time for countermanding a trust was held to be a question of law : Scheibel 
 V. Fail-bain, 1 B. & P. 388. In Hurst v. Royal Exchange Assurance Co., 5 
 M. & C. 47, laches of five days after intelligence of the loss, and before notice 
 of abandonment was given, was held by the court to be too long. What is a 
 convenient time for the taking of a prisoner, by the sheriff, to prison, is a ques- 
 tion for the judge : tit. Sheriff. The question, whether a market is held so 
 near to another as to constitute a nuisance, is sometimes a question of law : tit. 
 Nuisance. And see further, as to reasonable time, the observations of Abbott, 
 C. J., in Smith v. Doe dem. Lord Jersey, 2 B. & B. (6 E. C. L. R.) 592; infra, 
 note (o). 
 
 ^ The construction the law putteth on facts founded by a jury, is in all cases 
 undoubtedly the proper province of the court : Frost. 256. 
 
 ™ This happens very generally upon the question of reasonable fines, customs,
 
 773 PROOFS — DUTY OF THE COURT. 
 
 prevail against the opinion of a jury." But if, on the other hand, 
 the circumstances do not bring the case within any general principle, 
 or definite rule of law, the further inference is necessarily one of 
 mere fact, to be made by the jury. In other words, the rules of 
 ordinary practice and convenience become the legal measure and 
 standard of right. 
 
 Thus, in the case of a bill of exchange, where the law requires 
 notice of dishonor to be given within a reasonable time; if it appear 
 on the facts proved in evidence, that the case is one falling within a 
 rule by which the law itself prescribes and defines what shall be con- 
 sidered to be reasonable time, the question is a mere question of 
 P^„„ ,-, law, for the *law itself, from the mere res gestcSy makes the 
 inference that the time was reasonable time." The duty of 
 
 and services : Co. Litt. 56, b., 59, b. ; Hohart v. Uammond, 4 Co. 27, b. ; Stodden 
 V. Harvey, Cro. J. 294. So in the case of Bell v. Wardell, Willes 202 ; supra, 
 p. 770, where the plaintiff in trespass justified under an alleged custom for the 
 inhabitants of a town to walk and ride over a close of arable land at all sea- 
 sonable times, but it appeared by the plea that the trespass was committed 
 whilst the corn was standing ; the court, upon demurrer, decided that the time 
 was not seasonable. In Wright v. Court, 4 B. & C. (10 E. C. L. R.) 596 ; the 
 court held, on demurrer to a plea justifying an imprisonment on a suspicion of 
 felony, that the detention of the plaintiff for three days, to give the prosecutor 
 an opportunity for collecting witnesses, was an unreasonable time. What is 
 necessary for an infant was formerly [MakareU, v. Bachelor, Cro. Eliz. 583) 
 erroneously thought to be a question of law: Peters v. Fleming, 6 M. & W. 42; 
 Wharton v. Mackenzie, 5 Q. B. (48 E. C. L. R.) 606. 
 
 ° We call those questions of fact where the business is to know the truth of 
 fiicts ; and we call those questions of law where the matter is about reasoning 
 on facts that are agreed on, in order to draw from them the consequences which 
 may seem to establish the rights of the parties: Domat's Pub. L., B. 4, tit. 1, 
 p. 658. 
 
 • Williams v. Smith, 2 B. & Aid. 496 ; Wright v. Shaiccross, Ibid. 501 ; Tin- 
 dall V. Brown, 1 T. R. 167. In Smith v. Doe dem. Lord Jersey, 2 B. & B. (6 E. 
 C. L. R.) 592 ; Abbott, C. J., said, " I conceive that in this, as well as in all 
 other cases, courts of law can find out what is reasonable ; and that in some 
 cases they are absolutely required to do so. In many cases of a general nature, 
 or prevailing usage, the judges may be able to decide the point themselves ; in 
 others, which may depend upon particular facts and circumstances, the assistance 
 of a jury may be requisite." And see Startup v. Macdonald, in error, 6 M. & 
 G. (46 E. C. L. R.) 593 ; in which case the court considered, that when bulky 
 goods were by contract to be delivered within a certain time, the party had 
 until twelve at night on the last day to deliver them ; and upon an issue whether 
 they were delivered at an unreasonable and iiiH)roj)er time, the question was 
 for the jury ; and if they thought that at the time when they were tendered 
 there was not a sufficient interval before twelve o'clock for completing the 
 delivery, they ought to have found the time was unreasonable.
 
 QUESTIONS OF LAW AND FACT. 774 
 
 the jury in such a case is obviously confined to the finding and ascer- 
 taining of the simple facts and res gestae ; any inference of theirs 
 upon the subject, that the time was or was not reasonable, would be 
 either simply nugatory, or both nugatory and illegal. 
 
 Where, on the other hand, the law is silent, and does not by the 
 operation of any principle or established rule decide upon the legal 
 quality of the simple facts, or res gestae, it is for the jury to draw the 
 general inference of reasonable or unreasonable, in point of fact.^ 
 In such cases the legal conclusion follows the inference in fact; in 
 other words, the question as to reasonable time, &c., is one of fact, 
 and the time is reasonable or unreasonable, *in point of law, r-^rjrrr-^ 
 according to the finding of the jury in point of fact. 
 
 If the question be, whether reasonable notice has been given by 
 the holder, of the dishonor of a bill of exchange ; and the evidence 
 be, that the holder gave notice by the next day's post, to an endorser, 
 living at a distance; the question would be one of mere law, for it 
 would fall within an express rule of law which determines such notice 
 to be reasonable. '1 But where no acknowledged rule or principle of 
 law defines the limits between reasonable and unreasonable, the ques- 
 tion seems to be one for the jury under all the circumstances of the 
 case." 
 
 It is next to be observed, that these terms, in the absence of any 
 precise rule of law, always import a comparison with some usual 
 course and order of dealing, or have reference to general conve- 
 nience, utility and the plain principles of natural justice. Where 
 the law is silent, the jury must draw the inference, not as their own 
 
 P As upon the question whether a party has been guilty of laches in not pre- 
 senting a bill payable at sight, or a certain time after, where no established 
 rule of law prevails: Fry v. Hill, 7 Taunt. (2 E. C. L. R.) 397 ; see tit. Bill 
 OP Exchange. Whether a particular covenant is an usual covenant in a lease : 
 Doe V. Sandham, 1 T. R. 705. What is a reasonable time for carrying away 
 tithes : Facey v. Hurdom, 3 B. & C. (10 E. C. L, R.) 213. For removing a dis- 
 tress: Pitt v. Shew, 4 B. & Aid. (6 E. C. L. R.) 208 ; and see other instances 
 detailed, infra, pp. 779, 780. 
 
 1 Williams v. Smith, 2 B. & Aid. 496, supra, n. (o) ; and see tit. Bill of Ex- 
 change. 
 
 ■■ Per Lord Kenyon, in Hilton v. Shepherd, 6 East 14, n. ; Fry v. Hill, 7 
 Taunt. (2 E. C. L. R.) 397. If the rule in the particular case is, that the act 
 must be done within a reasonable time, and the courts are able to pronounce 
 that the act was done in a reasonable time, the decision becomes a legal 
 precedent. If the court cannot decide on the evidence that the fact was done 
 in a reasonable time, then a further finding as a fact that the time was reason- 
 able is essential.
 
 775 PROOFS — DUTY OF THE COURT. 
 
 casual fancies or arbitrary opinions may dictate, but according to 
 their judgment and discretion, upon comparison of the fxcts with the 
 general and understood course of dealing, if any such exist, in refer- 
 ence to the matter litigated ; and in the absence of any such guide, 
 "with reference to mutual convenience and utility, or the ordinary 
 rules of fair and honest dealing ; for these, in the absence of any 
 express rule of law, are the proper, and indeed the only, standards 
 of comparison of which the case admits. 
 
 It follows, that such general questions of reasonable time, due 
 
 ^ diligence, and the like, are never in the abstract *neces- 
 *7761 . . . 
 
 •- -■ sarily either mere questions of law or questions of fact.* 
 
 Whether in a particular instance the question be of the one class or 
 
 the other, depends simply upon the existence and applicability of the 
 
 rule of law to the special circumstances, or res gestce : if any such 
 
 rule be applicable, the question is a mere question of law ; if no such 
 
 rule apply, the inference is one of mere fact for the jury.' It may 
 
 even happen that the very same circumstance which at one time 
 
 would have raised a question of fact, may at a subsequent period 
 
 ^ In the case of DarhisMre v. Parker, 6 East 10, Lawrence, J., expressed an 
 opinion that reasonable time was in general a question of law, because in the 
 case of Tindall v. Brown, 1 T. R. 167, the jury found merely the circumstances. 
 But. with great deference to the opinion of that very learned judge, it seems to 
 be going too far to infer that reasonable time must always be a conclusion of 
 law, because it was so considered in the particular case. In that case, the bill 
 being dishonored on the 5th, and notice not given till the 7th, although the 
 parties lived within twenty minutes' walk of each other, the jury nevertheless 
 found for the plaintiff; but the court held that there was a sufficient foundation 
 for laying down a legal rule, then but imperfectly established, as to the time of 
 notice. Lord Mansfield said, "What is a reasonable notice is partly a question 
 of fact and partly a question of law. It may depend in some measure on facts, 
 such as the distance at which parties live from each other, the course of post, 
 &c., but whenever a i-ule can he laid down with respect to this reasonableness, 
 that should be decided by the court, and adhered to by every one, for the sake 
 of certainty." 
 
 These observations remove all difficulty : he docs not say that reasonable 
 time must always be an inference of law upon the facts, but only where the law 
 can lay down a rule as to reasonaljlcness, which can only be recognizing a 
 practice already established, or by applying legal principles to some defined 
 combination of circumstances. And in accordance with this is the decision in 
 Straker v. Graham, 4 M. & W. 721 ; and see per Vaughan, J., 4 Bing. N. C. 
 (33 E. C. L. R.) 268. 
 
 ' Intention is a mere matter of fact, where the law does not infer the inten- 
 tion from the fact itself: per Lord Mansfield, E. v. Woodfall, 5 Burr. 2661 ; 
 see tit. Intention and Malice.
 
 QUESTIONS OF LAW AND FACT. 77G 
 
 raise a mere question of law ; a rule of law which governs the case 
 
 having been established in the interval." 
 
 *Cases of this kind, where the iury are to find the special 
 
 y ■ J J I r*7771 
 
 facts, and where the court can decide upon the legal quality •- -^ 
 
 of those facts by the aid of established rules of law, independently 
 of any general inference or conclusion to be drawn by a jury, have 
 been sometimes termed mixed questions of law and fact. Thus, it 
 was said,'' that the question of reasonable notice of the dishonor 
 of a bill of exchange was a mixed question. That the situation and 
 place of parties, the post-hours, and other matters of that sort, are 
 facts to be ascertained by the jury ; but whether under the circum- 
 stances notice was given in reasonable time, is a question of law, 
 upon which they ought to receive the direction of the judge. Now, 
 it seems to be clear, that whenever any rule or principle of law ap- 
 plies to the special facts proved in evidence, and determines their 
 legal quality, its application is matter of law ; and on the other 
 hand, that whenever the special facts and circumstances are such 
 that the court cannot by the aid of any legal rule or principle decide 
 upon the legal quality of the facts, it is necessary that the jury 
 should draw the inference *in fact as a mere question in 
 fact, Avith reference to the ordinary course and practice of *- -' 
 dealing, and the general principles of morality and utility. It may 
 therefore be doubted whether the expression " mixed question of law 
 and fact," be in strict propriety applicable to the former class of 
 cases. For wherever the law uses a general technical and abridged 
 
 " The rule as to notice to a tenant to quit formerly was that reasonable notice 
 should be given ; but in the reign of Henry VIII. it was decided that six 
 months' notice was necessary : see Doe v. Spence, 6 East 123. 
 
 '^ See Darhishire v. Parker^ 6 East 3 ; and the observations of Grose, J., Ibid. 
 The observations of Lord Mansfield, stqjra, note (s), and BuUer, J., in Tindall 
 V. Broivn, 1 T. R. 167. The terming of any question a mixed question of law 
 and fact, is chargeable with some degree of indistinctness. Questions of fact 
 and law are not in sti'ictness ever mixed ; it is always for the jury to decide 
 the one and the court the other, however complicated the case may be. In 
 some cases the main difficulty may consist in ascertaining the facts, where the 
 application of the law to the ascertained facts admits of no doubt ; in another 
 the facts may be clear and simple, and their legal effect doubtful ; but still in 
 each case the provinces of the court and jury are perfectly plain and distinct. 
 It is true that in some instances the court could not, without the aid of a con- 
 clusion of facts drawn by a jury, apply the law ; but this consideration does 
 not properly occasion any intermixture of or confusion of the respective func- 
 tions of the court and jury ; for the latter, in drawing their conclusion, still 
 confine themselves to mere matter of fact.
 
 778 PROOFS — DUTY OF THE COURT. 
 
 form of expression, the question arising upon it is partly a question 
 of law, partly a question of fact ; the jury must in all instances 
 find the facts which form the basis of the legal judgment, unless 
 they be admitted by the parties ; and it is for the court, in all cases, 
 to decide upon the legal quality of those facts. So universal is this 
 rule, that it applies even in those instances where, in the absence of 
 any rule or principle of law which enables the court to draw the con- 
 clusion directly and immediately from the special facts, it is essential 
 that the jury should draw the inference of reasonable time as a mat- 
 ter of mere fact ; for even here the adjudication by the court, that 
 the time is reasonable, involves matter of law as well as matter of 
 fact, although the question whether the time be reasonable, in point 
 of law, be dependent on the question whether it be reasonable in 
 point of fact. If the jury were by their verdict to find all the 
 special facts, and were also to find that the time was reasonable in 
 point of fact, the judgment of the court upon this finding would 
 still in all cases be matter of law. If in such a case the mere facts 
 fell within any established rule or principle, the special inference 
 made by the jury would be entirely nugatory, and the court would 
 apply the rule of law to the special facts, even although the legal 
 inference should be contrary to the inference in fact.^ In the 
 absence of any such rule, the judgment of the court, that the time 
 was reasonable, would follow the conclusion in fact; but it would 
 involve that which is mere matter of legal consideration and judg- 
 r*77Q1 ^^^^^1 t^^^ ^^5 *^^^® adjudication that no legal rule applied to 
 the facts, and that the question of law was consequently 
 dependent on the question in fact. In s<"rictness, therefore, as the 
 lethal application of every technical expression recognized by the law 
 is partly a matter of fact and partly a matter of law, it may be 
 doubted whether the terms " mixed question of law and fact" serve 
 accurately to distinguish any particular class of cases. All technical 
 expressions whatsoever, such as asportation,'' conversion,^ acceptance,^ 
 and the like, are in their application partly matters of law, partly 
 matters of fact. 
 
 These observations may not, perhaps, be deemed to be altogether 
 unimportant, when it is considered how essential it is to preserve the 
 
 y For it would be a wrong conclusion in point of law: see R. v. Whittlehury, 
 6 T. R. 40G. 
 » See tit. Lakceny. " See tit. Trover. 
 
 '• See tit. Frauds, Statute of.
 
 QUESTIONS OF LAW AND FACT. 779 
 
 distinction between law and fact, and to prevent any misconception 
 as to the relative functions of courts and juries.'' 
 
 Some of the cases to which these principles apply will next be 
 adverted to. Reasonable time, &c., is always a question of fact in 
 the absence of any rule or principle of law applicable to the circum- 
 stances. Thus, in an action for not removing goods distrained for 
 rent, after the expiration of five days, it is a question for the jury, 
 whether they were removed within a reasonable time afterwards.^ 
 So whether the sherifi" or his agents have used due diligence in at- 
 tempting to discover and arrest a defendant under civil process.* 
 Even the question, whether an attorney has been guilty of negli- 
 gence, in not complying *with the practice of the court, is a r^yQA-i 
 question for a jury.^ 
 
 In the case of Nohle v. Kennaway,^ where the defence to an action 
 on a policy of insurance was, that there had been unnecessary delay 
 in unloading the cargoes, it was held, that this was a question to be 
 decided by a jury, who could not decide without being informed as to 
 the usual practice of the particular trade. Where the defence to an 
 action for the price of goods sold and delivered was, that they did 
 not correspond with the sample, it was left to the jury to say whether, 
 under the circumstances, the defendant had rejected the goods within 
 a reasonable time.*" So, in a seeking voyage, a reasonable time for 
 the seeking adventure must be allowed ; and in an action on a policy 
 on such a ship, the question whether the time be reasonable must be 
 determined by the state of things at the port where the ship happens 
 to be.' And where overseers referred certain matters in dispute to 
 
 " It is of the greatest consequence to the law of England, and to the subject, 
 that the powers of the judge and jury be kept distinct ; that the judge determine 
 the law, and the jury the fact; and, if ever they come to be confounded, it will 
 prove the confusion and the destruction of the law of England : per Hardwicke, 
 C. J., R. V. Poole, Cases tempt. Hard. 28. 
 
 ^ Pitt V. Shew, 4 B. & Aid. (6 E. C. L. R.) 208 ; and see tit. Distress. 
 
 ® Hooper v. Lane, 10 Q. B. (59 E. C. L, R.) 546 ; and see tit. Sheriff, Neg- 
 ligence. 
 
 ' Hunter v. Caldwell, 10 Q. B. (59 E. C. L. R.) 69. 
 
 8 Doug. 510. 
 
 " Parker v. Palmer, 4 B. & Aid. (6 E. C. L. R.) 387 ; Coleman v. Gibson, 1 
 M. & Rob. 168. What is a reasonable time for the delivery of bulky goods 
 seems to be a question of fact for the jury : Startup v. McDonald, 2 M. & G. 
 (40 E. C. L. R.) 395. Although the judgment in this case was reversed in 
 1 Cam. Scacc, 6 M. & G. (46 E. C. L. R.) 593, supra, p. 774, note (o) ; the 
 grounds on which it was overruled seem to leave the proposition above quoted 
 untouched. 
 
 ^Phillips v. Irving, 7 M. & G. (49 E. C. L. R.) 325.
 
 780 PROOFS — DUTY OF THE COURT. 
 
 arbitration, and provided that certain costs of the other party should 
 be taxed and paid by the overseers, it was held that they were to be 
 paid in a reasonable time, and that what was a reasonable time was 
 a question for the jury.'' 
 
 In the cases of Tindal v. Brown^ and Darhuldre v. Parker, it was 
 said,™ that what is reasonable notice of the dishonor of a bill of 
 r*78n ^-'^c^^'^G® is a question of law arising *upon the facts; and 
 that a jury in such cases ought to receive the directions of 
 the judge; a position incontrovertibly true wherever the law affords 
 a rule which governs the case, for then the finding of the jury, that 
 the time is reasonable or unreasonable in point of fact, cannot be 
 placed in competition with the settled rules and principles of law, 
 and can never prevail but where the law is silent, and where the gen- 
 eral rules of law, founded upon a knowledge and experience of their 
 general utility, are from the peculiar nature of the case supposed to 
 be inapplicable. Thus, also, what is a reasonable time for which a 
 suspected party may be committed for re-examination, is a question 
 for the court to determine, the jury ascertaining the facts upon 
 which the court is to found its determination.'' 
 
 The existence of probable cause was formerly treated as a question 
 or inference of law." In an action for a malicious prosecution, the 
 facts constituting the grounds of suspicion were set forth by the de- 
 fendant in his plea, and the plaintiff" demurred, if they did not amount 
 to reasonable and probable cause. ^ In later times, it was not un- 
 frequently treated as a question of fact for the jury.'' The probable 
 cause of prosecution must necessarily consist in the circumstances of 
 the case within the defendant's knowledge, which tended to throw 
 suspicion on the plaintiff". The existence of such circumstances, and 
 their force and tendency, were thought to be questions rather of fact 
 than of law ; for the eff'ect was to be measured by sound sense and 
 discretion rather than by any rule of law, which could not measure 
 
 ^ Burton v. Griffiths, 11 M. & W. 817. ' 1 T. R. 1G7. • 
 
 "" 6 East 10. But see supra, pp. 776, 777, and StraJcer v. Graham, 4 M. & W. 
 721. 
 
 " Davis V. Cap2)er, 10 B. & C. (21 E. C. L. R.) 28 -, 4 C. & P. (19 E. C. L. R.) 
 134 ; Cave v. Mountain, 1 M. & G. (39 E. C. L. R.) 2G0. 
 
 ° Coxe V. Wirrall, Cro. Jac. 193. 
 
 P Brooks V. Warwick, 2 Stark. C. (3 E. C. L. R.) 389 ; Isaacs v. Brand, Ibid. 
 167. 
 
 •> See Candell v. London, 1 T. R. 520, n. ; Johnstone v. Sutton, 1 T. R. 544 ; 
 Rei/nolds v. Kenned)/, 1 Wils. 232 •, Goldiny v. Crowle, B. N. P. 14 -, Bcckwith v. 
 Phitby, 6 B. & C. (13 E. C. L. R.) 037 ; see tit. Malicious Persecution.
 
 QUESTIONS OF LAW AND FACT. 782 
 
 mere probability. If such circumstances did exist, it was *and rt'TQ-yi 
 still is presumed that the defendant acted upon them ; but 
 this is not conclusively presumed, for it is clear, that if, notwithstand- 
 ino; the existence of unfavorable circumstances, the defendant knew 
 that the plaintiff was innocent, he would be liable in damages; for 
 as to him, who was better informed, the circumstances could afford no 
 probable cause or ground of accusation.'' It is, however, now con- 
 clusively settled that the question of reasonable and probable cause 
 is a question of law. " In the more simple cases," says Tindal, C. 
 J., in delivering the judgment of the Court of Exchequer Chamber 
 in Panton v. Williams,^ " where this question depends entirely on 
 the proof of the facts and circumstances which gave rise to and 
 *attended the prosecution, no doubt has ever existed from r^Yoq-i 
 the time of the earliest authorities, but that such question is 
 purely a question of law to be decided by the judge." "There have 
 been some cases in the later books which appear at first sight to 
 have somewhat relaxed the application of that rule, by seeming to 
 leave more than the mere question of the facts proved to the jury; 
 but upon further examination it will be found, that although there 
 has been an apparent, there has been no real departure from the rule. 
 
 *■ Sir Anthony AsJiley^s case, 12 Co., infra, 92 ; notes [t), [u), [x) ; Davis v. 
 Russell, 5 Bing. (15 E. C. L. K.) 3^4 ; where the judo;e, having directed the jury- 
 to consider whether the circumstances afforded the defendant reasonable ground 
 for supposing that the pUiintiff had committed a felony, and whether in his situ- 
 ation they would have acted as he had done, the court held that the direction 
 was substantially correct. Best, C. J., in giving judgment, observed, it was for 
 the jury to say whether they believed the facts; and, if they believed them, 
 whether the defendant was acting honestly. In some cases it becomes a nice 
 question whether it is necessary to trace home to the defendant knowledge of 
 the exact facts which show in truth there was not reasonable and probable cause, 
 or whether it is not incumbent on the defendant to show his ignorance : see 
 Micliell V. Williams, 11 M. & W. 205. If A., having an opinion of counsel in 
 his favor, arrests B., he is not liable to an action for a malicious ai'rest, if he 
 acted honestly on that opinion : secus, if he believed he had no cause of action : 
 Ravenga v. Macintosh, 2 B. & C. (9 E. C. L. R.) 693 ; but this is with reference 
 to the question oi malice : and see Mitchell v. Jenkins, 5 B. «& Aid. (27 E. C. L. 
 R.) 588 ; and tit. Malicious Arrest. 
 
 ' 2 Q. B. (42 E. C. L. R.) 169. In this case both the law and the fact were left 
 entirely to the jury, and the court of error awarded a venire de novo ; and see 
 Michell V. Williams, 11 M. & W. 205 ; Turner v. Ambler, 10 Q. B. (59 E. C. L. 
 R.) 252, West v. Braxendale, 9 C. B. (67 E. C. L. R.) 141. That reasonable 
 degree of belief which is a criterion of bona fides, when the question is whether 
 a party thought he was acting under a statute which entitled him, if so acting, 
 to notice of action, is a question for the jury : Cox v. Reid, 13 Q. B. (66 E. C. 
 L. R.) 558.
 
 783 PROOFS — DUTY OF THE COURT. 
 
 Thus, in some cases, the reasonableness and probability of the ground 
 for prosecution has depended, not merely upon the proof of certain 
 facts, but upon the question, whether other facts which furnished 
 an answer to the prosecution were known to the defendant at the 
 time it was instituted :^ again, in other cases, the question has turned 
 upon the inquiry, whether the facts stated to the defendant at the 
 time, and which formed the ground of the prosecution, were be- 
 lieved by him or not ;" in other cases, the inquiry has been, whether 
 from the conduct of the defendant himself the jury will infer that 
 he was conscious that he had no reasonable or probable cause.'' But 
 in these and many other cases which might be suggested, it is obvi- 
 ous that the knowledge, the belief, and the conduct of the defendant 
 are really so many additional facts for the consideration of the jury ; 
 so that in fact nothing is left to the jury but the truth of the facts 
 proved, and the justice of the inference to be drawn from such 
 facts : both which investigations fall within the legitimate province 
 of the jury, whilst at the same time they have received the law from 
 the judge, that according as they find the facts proved or not proved, 
 and the inferences warranted or not, there was reasonable and pro- 
 bable ground for the prosecution or the reverse. And such being 
 
 ,- , N,^ .-, *the rule of law where the facts are few and the case simple, 
 
 r*7841 . . 
 
 •- -J we cannot hold it to be otherVvise where the facts are more 
 
 numerous and complicated." 
 
 The inference of fraud is also in some cases a mere question of 
 law arising upon the facts; in others it is a mere matter of fact.^ 
 Where a trader aliens the whole of his effects for a past debt, he is 
 guilty of fraud against his creditors, and commits an act of bank- 
 ruptcy ; and the court will infer fraud from the facts, without the 
 aid of a jury.^ If a creditor, knowing that his debtor was going to 
 
 ' James v. Phelps, 11 A. & E. (39 E. C. L. R.) 483. 
 
 ° Uaddrick v. Heslop, 12 Q. B. (64 E. C. L. R.) 267 ; accord : Turner v. Ambler, 
 10 Q. B. (59 E. C. L. R.) 252. 
 
 * Ilinton V. Heather, 14 M. & W. 131. 
 
 y Per Lord Mansfield, in Foxcrqft v. Devonshire, 2 Burr. 937. Fraud and 
 covin is always a question or judgment of law on facts and intention ; per Lord 
 Ellenboroujfh, Doe v. Manning, 9 East 59. But the intention is frequently a 
 question of fact. Upon an issue taken generally on an allegation of fi'aud, it is 
 a question of^ fact, and if there be no fraud in fact, there is none in law : per Bul- 
 ler, J., Pease v. Naylor, 5 T. R. 80. The obtaining of a bill of exchange by fraud 
 is a question of fact : Gixw v. Beoan, 3 Stark. C. (3 E. C. L. R.) 134 ; and see 
 tit. Bill of Exchange. 
 
 ' Newton v. Chandler, 7 East 138 ; Linton v. Bartlett, 3 Wils. 47 ; Wilson v. 
 Day, 2 Burr. 827 ; ^iebcrt v. tipooner, 1 M. & W. 714 ; Lenden v. Sharp, 8 M. &
 
 QUESTIONS OF LAW AND FACT. 784 
 
 break, were, before any direct act of bankruptcy, to procure payment 
 by threats, the law would pronounce that this was not fraudulent." 
 
 Or the question may be one of fact for the jury : as where it de- 
 pends not on the mere act done, but upon the particular intention 
 with which it was done :'' as where a trader conveys," or a debtor 
 assigns his property, to defraud creditors.*^ So it is a question of 
 fiict whether fraud has been practised in procuring a blind man to 
 execute a will.® 
 
 *The inference as to malice and intention, also, may be r-nr-, 
 one either of mere law, as in cases of homicide, where the law ^ -^ 
 frequently infers a malicious intention from the facts, independently 
 of any conclusion drawn by the jury.^ Or of mere fact, as in cases 
 where some malicious intention in particular is essential to the 
 charge;^ or where the nature of an act depends on the particular 
 intention of the parties.'' 
 
 The question, whether a party had knowledge of a particular fact, 
 is usually a question of fact to be left to the jury.' 
 
 G. (46 E. C. L. R.) 895 ; Eastwick v. Caillaud, 5 T. R. 420. But it is otherwise 
 of a sale or transfer for full consideration then given : Baxter v. Pritchard, 1 
 Ad. & E. (28 E. C. L. R.) 457 ; Rose v. Haycock, Ibid. 460 ; Wainwrightv. Cle- 
 ment, 3 M. & W. 385 ; 6 Bing. N. C. (37 E. C. L. R.) 86. 
 
 ^ Per Lord Mansfield, 2 Burr. 938. ^ And see tit. Intention. 
 
 " Newton v. Chantler, 7 East 145 ; Siebert v. Spooner, 1 M. & W. 714 ; and see 
 tit. Bankrupt. 
 
 ■* Notes to Twyne^s case, 1 Smith L. C. 9 ; and see tit. Fraudulent Convey- 
 ance. 
 
 ^ Per Heath, J., Longchamp v. Fish, 2 N. R, 419. 
 
 ^ See tits. Libel, Murder. 
 
 8 See tits. Intention, Libel, Malice, Malicious Arrest, Malicious In- 
 juries, Malicious Prosecution. On a prosecution for larceny, the quo animo is 
 for the jury : R. v. Phillips, East P. C. 662 -, see tit. Larceny. So, to what pur- 
 pose trees cut down by a tenant were intended to be applied by him : Doe v. 
 Wilson, 11 East 56 ; see tit. Copyhold. 
 
 ^ Powis V Smith, 5 B. & Aid. (7 E. C. L. R) 850. So, according to the civil 
 law, " Quicunque intentionem facto superstruit factum id tenetur probare, ut non 
 neganti sed adjirmanti incumbat probatio.^^ The intention of the parties in pay- 
 ing or receiving rent is for the jury : per Gould, J., 1 H. Bl. 312; Ooodright 
 V. Carder, 6 T. R. 319 ; see tit. Payment. 
 
 ' Harrattv. Wise, 9 B. & C. (17 E. C. L. R.) 712; where it was held that 
 knowledge on the part of a captain of a vessel, of the fact that a foreign port 
 was in a state of blockade, was not to be presumed on the ground that notice 
 to a State was notice to all the subjects of that State, but was to be proved as 
 matter of fact. It is a question of fact for a jury to whom credit was given by 
 the vendor of goods : Leggat v. Reed, 1 C. & P. (12 E. C. L. R.) 16, and note ; 
 Bentley v. Grijin, 5 Taunt. (1 E. C. L. R.) 356.
 
 785 PROOFS — DUTY OF THE COURT. 
 
 The question whether a sheriff,'' or attorney,' or agent has been 
 guiltj of negligence, is one of fact for the decision of the jury, even 
 where it consisted in not complying with the practice of the court." 
 
 What shall be said to be the next sessions, that is, the next prac- 
 ticable sessions, for an appeal against a removal order, is a question 
 r*78n *^^^^^*' inasmuch as it frequently *depends on the particular 
 situation of the parties, and the circumstances of the case." 
 
 Reputed ownership, it seems is a question of fact rather than of 
 law.° 
 
 An allegation that a person is employed in the service of the 
 customs is an allegation of fact : the allegation that it was his duty 
 as such to seize goods which on importation are forfeited, is matter 
 of law.P 
 
 The construction of all written documents is matter of pure law, 
 as it seems, in all cases where the meaning and intention of the 
 framers is by law to be collected from the document itself; as in the 
 instances of judicial records, deeds, &c. ;'' but where the meaning is to 
 be judged of by the aid of extrinsic circumstances, the construction 
 is usually a question of fact for the jury.'" Thus, in the case of libel, 
 the meaning of the writer and the truth of the innuendoes are ques- 
 tions of fact. So in a prosecution for sending a threatening letter, 
 the question, whether it contains a threat, if doubtful, is to be de- 
 cided by the jury.^ But where there is evidence of facts, as well as 
 documentary evidence from which the nature of a contract is to be 
 derived, the question, what was the contract betAveen the parties, is 
 for the jury.' If the context shows that a word is not used in its 
 
 •^ Hoojjer v. Lane, 10 Q. B (59 E. C. L. R.) 546. 
 
 ' Hunter v. Caldwell, 10 Q. B. (59 E. C. L. R.) 69. 
 
 ™ See tit. Negligence. 
 
 ° R. V. Coode, 4 Burn. 145, 26th edit. ; R. v. Justices of the East Riding of 
 Yorkshire, Ibid. ; R. v. Justices of Essex, 1 B. & Aid. 210 ; R. v. Watts, 7 Ad. 
 & E. (34 E. C. L. R.) 461. 
 
 " Per Buller, J., in Walker v. Burnell, Doug. 317 ; Lingham v. Biggs, 1 B. & 
 P. 82; andj:;er Lawrence, J., in Horn v. Baker, 9 East 241 ; Watson v. Peache, 
 1 Bing. N. C. (27 E. C. L, R.) 327. But it is not unfrequently a question of 
 law ; see tit. Bankrui'TCY. 
 
 p R. V. Everett, 8 B. & C. (15E. C. L. R.) 114. 
 
 '^ See supra, p. 648, et seq. 
 
 ■■ Any ambiguity on the face of a document must be explained by the judge, 
 but if it arise from extrinsic evidence it must be construed by the jury : Smith 
 V. Thompson, 8 C. B. (65 E. C. L. R.) 44. 
 
 * Girdwood' s case. Leach, C. C. L. 42 ; and see Tyler'' s case, Moo. C. C. 428. 
 
 •■ Moore v. Garwood, 4 Ex. 681.
 
 QUESTIONS OF LAAV AND FACT. 786 
 
 primary or strict sense, the judge may adopt the construction 
 *indicated by the context; or if the surrounding circum- r+yoy-i 
 stances at the time the instrument was made, show that the 
 parties intended to use the word in some secondary meaning, the 
 judge may construe it according to such intention of the parties. 
 But if there is evidence that the word was used in a sense peculiar 
 to a trade, business, or place, or if its meaning depends upon the 
 usage of the place where anything under the instrument is to be 
 done, the jury must say whether the parties have used it in that 
 peculiar sense. They must also give the meaning of some technical 
 words." Where an agreement is not contained in any formal instru- 
 ment, but is collected from letters which have passed between the 
 parties, their construction, where their terms are plain and unambig- 
 uous, is also for the consideration of the court ; but where they are 
 written in so dubious and uncertain a manner as to be capable of 
 different constructions, and can be explained by other circumstances, 
 it is for the jury to decide on the whole of the evidence.'' And it 
 seems that in general, where the evidence of a contract is matter of 
 inference from circumstances, it is a matter of fact for the jury. 
 
 *It is the peculiar province of the jury to draw the proper r;):rTr,o-i 
 conclusion in fact from mere circumstantial evidence of the 
 fact, and to deduce the proper inference in all cases of indirect evi- 
 dence, except in those instances where the law makes particular facts 
 the foundation of a legal presumption; and even in such instances, 
 where the legal presumption is not conclusive, it is still for the jury 
 to decide on the evidence whether the legal primd facie presumption 
 or intendment is repelled by contrary evidence. 
 
 It also belongs to the court to decide all collateral matters arising 
 
 " Simpson v. Margitson, 11 Q. B. (63 E. C. L. R.) 23; Hitchin v. Groom, 5 
 C. B. (57 E. C. L. R.) 515; Neilson v. Harford, 8 M. & AV. 806 ; Hutchinson 
 V. Boivker, 5 M. & W. 535 ; Morrell v. Frith, 3 M. & W. 402 ; see supra, p. 701, 
 et seq. 
 
 ^ Per Buller, J., Macbeath v. Haldimand, 1 T. R. 182. Note, that Willes, J., 
 in the same case, was of opinion that the construction of letters generally was 
 proper for the jury ; but Buller, J., intimated his dissent from the general pro- 
 position ; and see Baildon v. Walton, 1 Ex. 617; Morrell v. Frith, 3 M. & W. 
 402. In Stammers v. Dixon, 7 East 200, where the question was whether land 
 ■was parcel of the plaintiff's freehold or the defendant's copyhold, and evidence 
 given of acts of ownership, and copyhold admissions, it was held that the effect 
 of the admissions was matter of law for the Court ; and the result of that case 
 seems to be, that the jury were to find upon the whole of the case, giving effect, 
 as far as the documents were concerned, to the construction put upon them by 
 the Court.
 
 788 PROOFS — DUTY OF THE COURT. 
 
 in the course of tlie trial. Thus, it is for the court in all cases to de- 
 termine upon the competency of witnesses, and the admissibility^ 
 of particular evidence with reference to the facts in issue, or to the 
 allegations on the record, even although the admissibility of the evi- 
 dence should depend on matter of fact. And questions upon such 
 matters cannot be put to the jury/ Even if a preliminary question 
 arises, as, for instance, whether the person be an agent of one of the 
 parties or no, in order to let in evidence of admissions made by him, 
 the judge must decide it, although it may afterwards be a question 
 for the jury in order to dispose of an issue in the cause."' And in all 
 cases the question whether evidence be admissible or not is a question 
 to be decided by the judge alone, although, after it is admitted, its 
 credibility and weight are questions for the jury, who in so doing 
 consider all the circumstances of the case, including of course those 
 upon which the judge has decided that the evidence was admissible.'' 
 Various instances of the application of this principle have occurred. 
 Thus, it has been held that it is a question for the court, whether a 
 declaration made by one in articulo mortis be admissible under the 
 circumstances *of the case." So, where the question was 
 L -■ upon the sufficiency of the stamp on a bill of exchange, 
 which depended upon the further question whether it was a foreign 
 bill, which it purported to be, or an inland one, as the defendant as- 
 serted, it was held that it was the duty of the judge to decide this 
 question.*^ Where the question was whether a witness was competent 
 or not on the ground of sanity, Parke, B., after taking the opinion 
 of the judges, tried the question of sanity, and admitted the witness.* 
 The judge must try whether a person, whose declarations on a ques- 
 tion of pedigree are tendered in evidence, is proved to have been a 
 member of the family.^ And where declarations are offered in evi- 
 dence as made by a party to the suit, the judge should determine his 
 
 y Per Tindal, C. J., Leiois v. Marshall, 7 M. & G. (49 E. C. L. R.) 743. 
 
 ^ Doe dem. Jenkins v. Davies, 10 Q. B. (59 E. C. L. R.) 323. 
 
 » Per Erie, J., in Doe v. Davies, 10 Q. B (59 E. C. L. R.) 323 ; Welsted v. Levy, 
 1 M. & Rob. 138. 
 
 " Lewis V. Marshall, 7 M. & G. (49 E. C. L. R.) 743 ; Phillips v. Cole, 10 A. 
 &E. (37 E. 0. L. R.) 112. 
 
 So held by all the judges : see li. v. Hiicks, 1 Stark. C. (2 E. C. L. R.) 523 5 
 Major Campbell's case, quoted by Parke, B., in Bartlett v. Smith, 11 M. & W. 
 486; see tit. Admissions. 
 
 " liartlelt v. Smith, 11 M. & W. 483. 
 
 « Per Parke, B., in Cleeve v. Jones, 21 L. J., Ex. 106. 
 
 ' Doe V. Davies, 10 Q. B. (59 E. C. L. R.) 314.
 
 QUESTIONS OF LAW AND FACT. 789 
 
 identity.^ So, he must try whether a particular contract is of such 
 a usual character as to let in evidence of a custom of trade to con- 
 trol its terras.^ So, he must inquire into and decide the question, 
 whether the attempts to find an attesting witness have been sufficient 
 to admit proof of his handwriting,' or whether proper search has been 
 made for a document to let in secondary evidence,'' or whether the 
 custody of an ancient document was proper.' So, where the plaintiff 
 had been the attorney of the defendant, the judge decided the ques- 
 tion whether a book tendered by the plaintiff in evidence came to 
 him as a privileged communication from the defendant."" Whether 
 different portions of land are so *connected as to make acts 
 done upon one of them evidence of rights over another, and ■- -^ 
 also whether such acts amount to evidence of ownership," are like- 
 wise questions which the court must decide. The evidence tendered 
 upon such questions, indeed, is not in any way for the jury ; the tes- 
 timony ought to be given upon the voire dire : and if amongst the 
 matters, upon which the question whether secondary evidence is ad- 
 missible or not depends, there be a letter, the judge will not have it 
 read before the jury, but will read it himself, and hand it to the op- 
 posite counsel." 
 
 It is also the province of the court to decide all matters which de- 
 pend on an inspection of the record.^ 
 
 The court it has been said will, ex officio, exclude illegal evidence, 
 without regard to the compact of counsel. "^ 
 
 s Corjield v. Parsons, 1 C. & M. 730. 
 
 •^ Lewis V. Marshall, 7 M. & G. (49 E. C. L. R.) 729 ; and see supra, p. 701. 
 
 ' Supra, p. 514. 
 
 " Supra, p. 536. 
 
 ' Bishop Meath v. Marquis of Winchester, 3 Bing. N. C. (32 E. C. L. R.) 183; 
 and see supra, p. 536, 
 
 ™ Cleave v. Jones, 21 L. J., Ex. 105. 
 
 ° Doe V. Kemp, 7 Bing. (20 E. C. L. R.) 336. 
 
 o Smith V. Sleap, 1 C. & K. (47 E. C. L. R.) 48. 
 
 P R. V. Hucks, 1 Stark. C. (3 E. C. L. R.) 455. Note, the question there was, 
 whether a word in a record was meeting or mutiny. 
 
 <! Shaw V. Roberts, 2 Stark. C. (3 E. C. L. R.) 522. But see on this subject 
 Barhat v. Allen, 21 L. J., Ex. 155, where the subject underwent considerable 
 discussion, and it would seem that in ordinary cases, if no objection be made, 
 the evidence ought to be received; but if the objection be once made, it is 
 purely discretionary with the judge whether he will allow it to be withdrawn. 
 The parties cannot, it has also been said, by private stipulation bind a court of 
 justice not to call for that proof which law has rendered necessary. They can- 
 not make proof of the policy sufficient, where the stat. 19 Geo. II., c. 37, pro- 
 
 46
 
 790 PROOFS — DUTY OF THE COURT. 
 
 A party who is dissatisfied with the decision of the court in point 
 of law may either tender a bill of exceptions, or, which is the more 
 modern practice, may afterwards move for a new trial. 
 
 A bill of exceptions is founded upon some objection to the direc- 
 tion of the judge at nisi prius, or the court upon a trial at bar' to 
 ■- , «^. -, the jury, or their decision as to *the admissibility of evidence/ 
 L ^ -I or the competency of witnesses,' or improperly allowing or 
 
 hibits the recovery witliout further proof than the policy : Hodgson v. Glover, 
 6 East 321. Yet it is difficult to say that a party in a civil controversy, who 
 may waive the proof by omitting to deny an allegation, may not dispense with 
 proof at the trial. 
 
 ' Botce V. Benton, 3 M. & R. (17 E. C. L. R.) 2G6. 
 
 ^ Thurston v. Slatford, Salk. 284. If the contention be whether the facts 
 proved, tend to prove the issue, the party objecting ought to demur to the evi- 
 dence : Bulkehj v. Biitler, 2 B. & C. (9 E. C. L, R.) 445. 
 
 * Bent V. Baker, 3 T. R. 27. For improperly directing a nonsuit: Strother v. 
 Hutchinson, 4 Ring. N. C. (33 E. C. L. R.) S3 ; Corsar v. Reed, 21 L. J., Q. B. 
 18 ; post, p. 807, note (x). So, if the judge tell the jury thatthere is evidence 
 when there is none : Bulkehj v. Butler, 2 B. & C. (9 E. C. L. R.) 445. Where 
 the reception of evidence depends upon some fact ivhich is disputed, and of 
 which the Court and not the jury is the proper judge, it may be very doubtful 
 whether the decision of the judge can afterwards be brought in question by 
 means of a bill of exceptions ; for this would be to constitute the Court of Error 
 a court for deciding, not upon the law, but upon the fact, and that, too, in a case 
 which might depend altogether on a balancing of the credit due to conflicting 
 testimony. In Bell v. The Hull and Selby Railumy Co., 6 M. & W. 699 (184U), 
 one of the questions was, whether the judge at nisi prius haii properly rejected 
 a witness tendered for the defendants on the ground of interest, the witness 
 having stated tliat he had been a shareholder, but that he had a few days before 
 assigned his shares to the treasurer of the Company in order to qualify himself 
 to be a witness, that he conceived himself to have transferred his interest, and 
 that he had to rely only on the honor of the transferee for a re-transfer, but 
 that in case of refusal he should apply to a Court of Equity for redress. The 
 judge had rejected the witness on the ground that the transaction was merely 
 collusive. For the plaintiff, it was contended [inter alia) that the question, 
 whether the transaction was collusive or not, was one of fact for the judge at 
 nisi ])rius, and that his decision could not be questioned in ba)ic, any more 
 than if the question had been raised upon a bill of exceptions tendered. But 
 the Court intimated that the decision of the judge might be questioned on a 
 motion for a new trial, although not upon a bill of exceptions tendered ; and 
 see Wright v. Doe dem. Tutham, 7 Ad. & El. (34 E. C. L. R.) 356; and the ob- 
 servations, Ibid., of Tindal, C. J., on the case of The Bishop of Meath v. The 
 Murtjuis of Winchester, 3 Ring. N. C. (32 E. C. L. R.) 183; Doe dem. Norton 
 V. Wehsler, J2 A. & E. (40 E. C. L. R.) 442. On a bill of exceptions the ques- 
 tion of fact always goes to the jury : Miller y. Warre, 1 C. & P. (12 E. C. L. R.) 
 239.
 
 BILL OF EXCEPTIONS. 792 
 
 refusinop a challenge of the jury," or refusino; a demurrer to evi- ^^ „^^-. 
 
 & o ,1 J ■< o r*79'^l 
 
 dence." The *stat. 13 EdAV. I. s. 31, enacts that "when one,^' ^ -J 
 
 that is impleaded^ before any of the justices, doth allege an exception, 
 
 praying that the justices will allow it, which if they will not allow, if 
 
 he that hath alleged the (juestion do write the same exception, and 
 
 require that the justices will put their seals for a witness, the justices 
 
 shall do so ; and if one will not another of the company shall ;'^ and 
 
 if *the king, upon complaint made of the justices, cause the 
 
 record to come before him, and the same exception be not L " -• 
 
 found in the roll, and the party show the exception written, wnth 
 
 « Strnfher v. Hutchinson, 4 Bin^. N. C. (33 E. C. L. R.) 83. 
 
 ^ Cort V. Bishop of St. David's, Cro. Car. 341 ; Gibson v. Hunter, 2 H. Bl. 208 ; 
 Strother v. Hutchinson, 4 Bing. N. C. (33 E. C. L. R.) 90. 
 
 y The statute extends to a plaintiff as well as a defendant : 2 Inst. 427. 
 
 ' The words are, si aliquis implacitetur ; hence it has been said that does not 
 apply in a criminal case : /Sir H Vane's case, 1 Keb. 384 ; 1 Lev. 68 ; E. v. 
 Broughton, Str. 1229 ; Lord Grey's case, 1 Vern. Ch. Cases 175. It does not 
 lie on an indictment for treason or felony : 2 Haw. c. 46, s. 210 ; Sir H. Vane's 
 case, 1 Keb. 324. 
 
 But it has been allowed on an indictment for trespass : R. v. Lord Paget, 1 
 Leon. 5. And also on an information in the nature of a quo warranto : li. v. 
 Higgins, 1 Ventr. 366 ; sic R. v. Nutt, 1 Barn. 307. It does not lie before jus- 
 tices on the trial of an appeal : R. v. Inhabitants of Preston, 2 Str. 1040. Nor 
 in any case where a writ of error does not lie : B. N. P. 316. The stat. extends 
 to a trial at bar, as well as to one at nisi priiis : Thurston v. Slatford, 3 Salk 
 155; Davis v. Lowndes, \ M. & G. (39 E. C. L. R.) 473 ; contra, R. v. Smith, 
 2 Show. 287. 
 
 Lord Coke says, the statute extends to all actions real, personal and mixed, but 
 makes no mention of criminal cases. Lord Ilardwicke considered this to be a 
 point not then settled : R. v. Inhabitants of Preston, supra. He said, a bill of 
 exceptions had been allowed in informations in the Exchequer, which are civil 
 suits for the King's debt ; but that it had never been determined to lie in mere 
 criminal proceedings, Ibid. ; and see R. v. Stratton and others, Howell's St. Tr. 
 vol. 21, p. 1045. It has been held that it does not lie on the trial of a feigned 
 issue out of Chancery : Bullen v. Michel, 2 Price 416, Wood, B., dissentiente ; 
 Armstrong v. Leicis, 3 M. & K. 52 ; or a feigned issue under the Tithe Commu- 
 tation Act : Thorpe v. Ploivden, 2 Ex. 387. Nor does it lie on an interpleader 
 issue : King v. Simnionds, 7 Q. B. (53 E. C. L. R.) 289; Snook v. Mattock, 5 
 Ad. & E. (31 E. C. L. R.) 239. It is much doubted whether it lies on a writ of 
 inquiry : Price v. Green, 16 M. & W. 346. But it lies on the direction of a 
 sheriff to a jury in the county court: Strother v. Hutchinson, 4 Bing. N. C. 
 (33 E. C. L. R.) 83 ; and on an issue out of the Admiralty Court : 3 & 4 Vict, 
 c. 65, s. 15. 
 
 " It must be sealed by the judge who tried the cause : Newton v. Boodle, 3 
 C. B. (54 E. C. L. R.) 795; or by one in the commission ; no other can do 
 so, even by consent : Nind v. Arthur, C. P. 1 Chitty's Stats, by Welsby, p. 
 307.
 
 793 PROOFS — DUTY OF THE COURT, 
 
 the seal of the justice affixed, the justice shall be commanded that 
 he appear at a certain daj to confess or deny his seal, and if 
 the justice cannot deny his seal, judgment shall be given accord- 
 ing to the exception, as it may be allowed or disallowed." If 
 the judge admit the matter to be evidence, but not conclusive, where 
 in point of law it is conclusive, the course is to demur to the 
 evidence,'' because (as it is said), although the evidence be conclusive, 
 the jury might formerly hazard an attaint if they pleased;" as where 
 the judge leaves it to the jury whether the probate of a will be evi- 
 dence to prove the bequest of a term for years. "^ The statute is 
 silent as to the time of tendering the bill, but it has been held, on 
 reason and principle, that it must be done at the trial, for the party 
 may have misled his adversary by not insisting on the objection at 
 the time ;® if he stood upon his exception the adversary might have 
 had more evidence, and need not have put his cause upon that point. 
 It need not, however, be put in form then, although the substance of 
 it *ought to be put into writing, since it is to become a 
 ■- -^ record.^ 
 
 If the bill be annexed to the record, it begins with the proceed- 
 ings after issue joined, and proceeds to state the circumstances upon 
 which it is founded : that a particular witness was called to prove 
 certain facts, or evidence offered to prove such facts,^ or challenge 
 
 ** See Demurrer to Evidence, infra, p. 797. 
 
 « See Tidd, Pr. 863, 9th edit. 
 
 <» Chichester v. Phillips, T. Kaym. 405 ; T. Jon. 146. 
 
 •^ Wright v. Sharpe, 1 Salk. 288. Where the exceptions were placed upon the 
 record after the finding of the jury, the Court of Error could not give judgment 
 thereon : Armstrong v. Letvis, 2 C. & M. 275. Where they erroneously appeared 
 to have been taken after verdict, the Court of Error amended the record in this 
 respect: Cully v. Taylerson, 11 A. & E. (39 E. C. L. R.) 1008 ; and a party is 
 entitled to a reasonable time, to seal his bill of exceptions and sue out his writ 
 of error; therefore where the plaintiif had signed judgment in such a case, the 
 court would not compel the defendant to enter upon the record that the bill was 
 sealed after judgment signed : B. v. Rowley, 2 D. N. S. 335. 
 
 f Per Holt, C. J., 1 Salk. 288 ; Tidd, Pr. 863, 9fch edit. 
 
 « It should contain so much of the evidence as is necessary to make the 
 exceptions intelligible to the Court of Error, and to furnish grounds for the 
 allowance or disallowance of the exception : Davies v. Lowndes, 1 Scott N. R. 
 328. And where part of a lease was inserted amongst the evidence by way of 
 extract, the House of Lords held that no other part of the lease could be 
 referred to: Galway \. Baker, 5 CI. & F. 157, App. Where the object for 
 which evidence is offered, but rejected, is obvious, and must have been under- 
 stood by the judge and the jury, it is not necessary that the object should be 
 Hpcciully stated : Due v. Earl of Jersey, 3 li. & C. (10 E. C. L. R.) 870. In the
 
 BILL OF EXCEPTIONS. 795 
 
 made, or demurrer *tendered ; the allegations of counsel on r-^r,q^-, 
 the admissibility or effect of evidence ; the opinion of the ^ -' 
 court or judge,*" and the exception of counsel to that opinion, and 
 the verdict of the jury.' Where the bill is not annexed to the record, 
 it is necessary to set out the whole of the proceedings previous to 
 
 case of BuUcely and others v. Butler, in error, 2 B. & C. (9 E. C. L. R.) 434, 
 where the question on which a bill of exceptions was tendered was, whether 
 there was sufiBcient evidence that the bill on which the action was brought was 
 endorsed by E. S., the payee, the record, when brought into the Court of K. B,, 
 after setting out the pleadings and continuances, stated that on a certain day 
 the cause came on to be tried ; that one W. B. was produced and examined as 
 a witness for the plaintiff, and stated that, &c. ; on cross-examination he stated 
 that, &c. (see the evidence, tit. Bill of Exchange) ; and then, upon no other 
 evidence being adduced of the person calling himself E. S. being the payee of 
 the said bill in the declaration mentioned, the counsel for the defendant objected 
 to the evidence so given as aforesaid by the said plaintiff in support of the said 
 issue joined between the said parties, and that there was no proof to go to the 
 jury of the identity of the said person calling himself C S. with the said E. 
 S., the payee of the said bill ; and then and there prayed the said Chief Justice 
 that he would declare to the jury that there was no evidence before them of 
 the endorsement of the said bill of exchange by the payee before mentioned ; 
 yet the said Chief Justice did then and there declare and deliver his opinion 
 to the jury aforesaid, that although in law there should be some proof of the 
 identity of the person making the endorsement, still it ought not to be so rigidly 
 followed up as to clog the negotiability of bills of exchange ; and the said Chief 
 Justice did further deliver his opinion, that the said evidence above set forth 
 was reasonable evidence to be left to the jury, whether the said endorsement 
 was the endorsement, &c. ; and thereupon, with that direction, left the same to 
 the jury, who declared themselves to be satisfied of the identity of the said E. 
 S. ; concluding in the usual form. Ilolroyd, J., in giving judgment, observed, 
 the real question was, "whether this evidence was or was not admissible, either 
 as containing the declarations of persons not called as witnesses, or as having 
 no tendency to prove the matters in issue. If the objection was known a priori^ 
 it should have been made before the evidence was given ; but if it was not dis- 
 covered till afterwards, then the judge should have been requested to strike the 
 evidence out of his notes ; and if after that he persevered in summing it up to 
 the jury, that would have been a good ground for tendering a bill of exceptions ; 
 but if, as appears to me to have been the case, the contention was whether, 
 admitting the facts deposed to, they tended to prove the issue, there should have 
 been a demurrer to the evidence." The judgment was afiBrmed. 
 
 '' It is not enough to state in the bill that the judge declined to direct the 
 jury in the way suggested, without showing what his direction actually was: 
 M'Alpine v. Mangnall, 3 C. B. (54 E. C. L. R.) 496. 
 
 ' Matters preliminary to their verdict, and which they were not bound by law 
 to find, cannot be inti-oduced together with the verdict, although found by them 
 together therewith : Davies v. Lowndes, 1 M. & G. (39 E. C. L. R.) 473 ; Tidd, 
 Pr! 862, 9th ed.; Eickell v. Money, B. N. P. 317; Fabrigas v. Mostpi, 11 St. Tr. 
 187 ; Money v. Leach, 3 Burr. 1692 and 1742.
 
 795 PROOFS — DUTY OF THE COURT, 
 
 the trial."^ If the bill be sealed, both parties are bound by it, and 
 cannot aver the contrary, or supply an omission in it.^ 
 
 The judge either sets his seal to the exceptions, or refuses to 
 do so because the bill contains matters which are not true."* On 
 r*7Qn ^<i/"^s^^j t^6 party may have a writ *founded on the statute, 
 containing a surmise of an exception taken and overruled 
 and commanding the justices, that if it be so, they put their seals to 
 the bill," If they return quod non ita est, an action lies for a false 
 return, in which the surmise may be tried ; and if it be true, the 
 plaintiff recovers damages, and a peremptory writ issues." 
 
 The bill of exceptions, when sealed, is not used until judgment has 
 been signed, and a writ of error brought to remove the proceeding 
 into the court above,P for the proceeding is in the nature of an ap- 
 peal.*! On the return of the writ of error, the judge being called on 
 by the court, either confesses or denies his seal; if he confess it, the 
 proceedings are entered of record, and the other party assigns error; 
 if he denies his seal, the plaintiff may take issue upon it, and prove 
 it by witnesses."^ 
 
 The court will not grant a motion for a new trial where a bill of 
 exceptions has been tendered, unless the bill of exceptions be aban- 
 doned.^ It seems to be otherwise where the new trial is applied for 
 upon another point, and that point could not have been included in 
 the bill of exceptions.' And a bill of exceptions is waived by bring- 
 ing a writ of error before the judge's signature has been obtained, 
 and the party will then be precluded from appending the bill to the 
 r*7Q'7-i "^^i* ^^ error." "Where the *objection is to the reception of 
 evidence as inadmissible, the party ought, if aware of the ob- 
 
 ^ B. N. P. 317. 
 
 1 Bridgman v. Holt, Show. Pari. C. 120 ; Lord Trimlestown v. Kemmis, 9 CI. 
 & F. 749. 
 
 °> Bridgman v. Holt, Show. Pari. C. 120. 
 
 ° 2 Inst. 427; B. N, P, 316; Lawlor v, Murrai/, 1 Sch. & Lef. 75; llegistrum 
 Brev, 182. 
 
 2 Inst. 427 ; Tidd, Pr. 864, 9th ed. 
 
 P Davenport v. Tyrrell, 1 Bl. R. 679 ; Symmers v. Begem, Cowp. 501 ; 3 Bl. Com, 
 372 : see Enfield v. Hills, 2 Lev. 236. 
 
 1 3 Bl. Com. 372. 
 >• 2 Inst. 428. 
 
 » Doe d. Roberts v. Roberts, 2 Chitty's R. 272. 
 
 ♦ Crotty V. Rrice, 15 Q. B. (69 E. C. L. R.) 1003 ; Adams v. Andrews, Ibid. 
 1001. 
 
 " Dillon V. Parker, 1 Binf>;. (8 E, C, L. R.) 17. But where a bill of exceptions 
 had been sent to the plaintiff, that he might agree to it or suggest alterations
 
 BILL OF EXCEPTIONS. 797 
 
 jection, to object to its reception ; if not apprised previously, he 
 ought, after it has been received, to request the judge to strike it out 
 of his notes, and if the judge persist in retaining it and stating it to 
 the jury, the proper course is to tender a bill of exceptions; but if 
 the contention is, whether the evidence, being admissible, tends to 
 prove the issue, the proper course is to demur to the evidence/ 
 
 The Court of Error may look into the whole of the matters set 
 out on record, to enable them to pronounce their judgment '/ and 
 if they see that there was a misdirection calculated to mislead the 
 jury in their verdict, they have no discretion, but must allow the 
 exception and direct a new trial, even although the verdict be 
 right/ 
 
 A party who admits the facts Avhich the adverse evidence tends to 
 prove, but desires to withdraw the application of the law of those 
 facts from the jury, and to submit them for that purpose to the court 
 above, is at liberty to do so by his demurrer to the evidence/ But 
 his demurrer cannot be allowed, unless he admit upon the record the 
 truth of the facts which the evidence of his adversary, though it be 
 but presumptive or circumstantial, tends to prove/ For though he 
 has a right to submit the legal *effect of the facts to the r^cYOQ-i 
 judgment of the court, yet, as the jury are the proper judges 
 of matters of fact, the evidence must either be submitted to the jury, 
 or the facts themselves which the evidence conduces to prove must be 
 
 before being signed by the judge, and on the same day the defendant sued out 
 a writ of error, it was held, that notwithstanding this the plaintiff was 
 bound to express his assent or dissent, and return it : Willans v. Taylor, 6 Bing. 
 (19 E. C. L. R.) 512 ; and the bill of exceptions not having been ready 
 when the writ of error was returned, the court, under the circumstances, or- 
 dered it to be tacked to the record : Taylor v. Willans, 2 B. & Ad. (22 E. C. L. 
 R.) 846. 
 
 ^ Bulkely v. Butler, 2 B. & C. (9 E. C. L. R.) 434 ; supra, p. 794. 
 
 y Vines v. The Corporation of Reading, 1 Y. & J. 4 ; Smith v. Latham, 1 C- 
 & M. 568. If the court decided in favor of the objection, they would either 
 award a venire de novo or reverse the judgment, but they cannot award a venire 
 de novo to an inferior court : Strother v. Hutchinson, 4 Bing. N. C. (33 E. C. L. 
 R.) 83. 
 
 " Househill Coal Company v. Neilson, 9 CI. & F. 788. This otherwise in case 
 of a motion for a new trial : Ibid. 
 
 * This proceeding is nearly obsolete, no instance of it having occurred in prac- 
 tice for many years. 
 
 '' Gibson v. Hunter, 2 H. B. 187 ; Wright v. Pindar, Alleyn 18 ; Cocksedge v. 
 Fanshaw, Doug. 119.
 
 798 PROOFS — DUTY OF THE COURT. 
 
 admitted." The judge, it seems, maj overrule the demurrer if he 
 think proper, and leave the case to the jury."^ 
 
 And if in the case of an information or any other suit, where the 
 King is a party, evidence be given for the King, it is said that the 
 King's counsel cannot be compelled to join in a demurrer to the evi- 
 dence, but that in such a case, the court ought to direct the jury to 
 find the special matter.* 
 
 Where the demurrer is allowed, the usual course is for the court to 
 give order to the associate to take a note of the evidence, which is 
 signed by counsel, and affixed to the posteaJ But if the court over- 
 ruled the demurrer improperly, the party may tender a bill of ex- 
 ceptions.^ 
 
 A demurrer to evidence lies in an inferior court. *" 
 
 The ancient practice of tendering bills of exceptions, or demurring 
 to the evidence,' has in a great measure been superseded by the more 
 
 ^ „^^^ modern'' practice of moving *the court for a new trial ; in 
 
 r*7991 • • . ■ . 
 
 •- -' the granting or refusing of which the courts exercise a dis- 
 cretionary power according to the exigency of the case, upon princi- 
 ples of substantial justice and equity.^ 
 
 " Ibid. ; and see Baker'' s case, 5. Co. 103 ; B. N. P. 314. But on a demurrer 
 to evidence, the court may draw the same inference as a jury would have drawn : 
 Tatlock V. Harris, 3 T. R. 174; Vere v. Lewis, 3 T. R. 182. No objection can 
 be taken to the pleadings : Cort v. Birkbeck, Doug. 218. 
 
 ^ Worsley v. FiUsker, 2 Roll. R. 119. 
 
 « Baker's case, 5 Co. 104 ; B. N. P. 313. 
 
 *■ B. N. P. 313. The damages may be assessed conditionally; or, if neces- 
 sary, a writ of inquiry may be executed after the court has given judgment: 
 
 B. N. P. 314 ; Herbert v. Walters, 1 Ld. Raym. 60 ; Newys v, Larke, Plowd. 
 408 ; Darrose v. Neicbott, Cro. Car. 143 ; and Miller v. Warre, 1 C. & P. (12 E. 
 
 C. L. R.) 329. 
 
 8 Gibson V. Hunter, 2 11. B. 208, supra, p. 797. 
 
 ^ As in the Palace Court: Fitzliarris v. Boiun, 1 Lev. 87. 
 
 ' Formerly the party had a remedy against the jury by writ of attaint, but 
 this is now abolished. 
 
 ■^ See the observations of Lord Mansfield in the case of Bricjht v. Eynon, 1 
 Burr. 390, where he observed that a verdict can only be set right by a new 
 trial, which is no more than having the cause more deliberately considered by 
 another jury, when there is a reasonable doubt, or rather a certainty, that 
 justice has not been done; and see the judgment of Wood, B., in Stevens v. 
 Aldridge, 5 Price 352. 
 
 ' The rules by which the courts will be guided in granting new trials have 
 become much more perfectly defined in modern times. In Hughes v. Hughes, 
 15 M. it AV. 701, Alderwon, B., said, that the court now regulates its discretion, 
 as nearly as possible, by the rules ap[)licablc to bills of exceptions.
 
 NEW TRIAL. 799 
 
 The two principal grounds for this motion, with reference to the 
 present subject, are, 
 
 1st. Some misdirection or misruling on the part of the judge ; or, 
 
 2dly. Error or misconduct on the part of the jury. 
 
 First, a new trial will be granted where the judge has misdirected 
 the jury upon a matter of law ; as where he states to the jury that 
 the evidence does not prove an alleged custom, when the testimony 
 of the witnesses, if believed, does prove the custom.™ 
 
 *So, if the judge reject evidence which ought to have been 
 admitted, or admit that which ought to have been rejected."^ L J 
 
 Formerly, the courts would not grant a new trial on the ground 
 of the reception of improper evidence, where there was sufficient 
 evidence without it to warrant the verdict." But it has since been 
 
 •" How V. Strode, 2 Wils. 269 ; 2 Salk. 649. So, if that be left to the jury, as 
 an award by commissioners having jurisdiction, which is in fact evidence 
 founded on the conduct or deni'ianor of the parties, and not an award or 
 adjudication, the court will grant a new trial : Jarrett v. Leonard, 2 M. & S. 
 265. The court granted a new trial in a toll cause, where the judge had mis- 
 directed the jury as to the meaning of the term constietudines, in an ancient 
 charter: Earl of Egremo?itv. Saul, 6 Ad. & Ell. (33 E. C. L. R.) 924; and see 
 Elliott V. The South Devon Railway Co., 2 Ex. 725. But it must be a mis- 
 direction as to some matter of law on which they ought to act, therefore the 
 court refused to grant a new trial on the ground of misdirection by an under- 
 sheriff in telling the jury, on a writ of inquiry in an action of slander, that 
 any amount of damages would entitle the plaintiff to full costs: Grater v. Col- 
 lard, 6 Dowl. P. C. 503. So, they have refused, where the judge erroneously 
 directed the jury that a fact need not be proved, which was by oversight sup- 
 posed not to have been proved, but which in fact was proved by a document 
 conclusive on the point, and admitted without objection: Bessy v. Windham, 6 
 Q. B. (51 E. C. L. R.) 166 ; and see Doe v. Penry, 1 Anst. 266. 
 
 ° Thomldns v. Hill, 7 Mod. 64. If, therefore, they said justice had been 
 done, although there had been a misdirection in point of law, they would not 
 set the verdict aside, nor discuss the legal question : Edmondson v. Machell, 2 
 T. R. 4. Nor will they now interfere where the whole case has been substan- 
 tially left to the jury, although a point made at the trial, which could have 
 been of no avail, has been omitted : Robinson v. Gleadow, 2 Bing. N. C. (29 E. 
 C. L. R.) 156. Nor can particular expressions be objected to, if the whole in 
 substance lead to a just conclusion : Gascoyne v. Smith, M'Cle. & Yo. 338. 
 
 ° Nathan v. Buckland, 2 Moore (4 E. C. L. R.) 153 ; Horford v. IVilson, 1 
 Taunt. 12. Even, as it seems, in a criminal case : R. v. Ball, Russ. & Ry. C. 
 C. R. 132; Tinkler's case. Ibid.; 1 East P. C. 354; R. v. Treble, Russ. & Ry. C. 
 C. R. 166. Where the court saw that there was evidence not merely enough to 
 warrant the finding of the jury, independently of that which was objected to 
 as having been improperly received, but that it greatly preponderated in favor 
 of the verdict, the court refused a new trial : Doe d. Teynham v. Tyler, 6 Bing. 
 (19 E. C. L.R.) 561.
 
 800 PROOFS — DUTY OF THE COURT. 
 
 determined, and seems now to be settled, that where evidence at 
 the trial is improperly received, and its reception formally objected 
 to, the adverse party has a right to a new trial ;p unless the court 
 sees clearly that the improper evidence could not have weighed 
 with the jury, or that a verdict, if given against the party who gave 
 the evidence, would have been set aside as against evidence. If, too, 
 evidence tendered has been improperly rejected, a new trial will be 
 granted, unless, even had it been admitted, a verdict for the party 
 tendering it would have been so clearly against the weight of evi- 
 dence, that in like manner it would have been set aside by the court.'^ 
 r*8nn *But a new trial was refused to be granted on account of 
 the rejection of a witness as incompetent, who was really 
 competent, where the fact which he was called to prove was estab- 
 lished by another witness, and was not disputed, and the verdict was 
 given on a collateral point, on which the defence was rested/ A 
 new trial would also be refused, although evidence were rejected of 
 a fact, if it was proved by other evidence, and admitted by the 
 opponent/ 
 
 On the ground of misdirection the court will grant a new trial, 
 even in a penal action after a verdict for the defendant,' or although 
 the sum recovered should be less than £20. 
 
 If the plaintiflF's counsel, however, at the trial acquiesces in the 
 ruling of the judge, and in consequence the defendant takes a ver- 
 dict without entering into his case, the plaintiff cannot afterwards 
 
 P Be Rutzen v. Farr, 4 Ad. & Ell. (31 E. C. L. R.) 53 ; Wright v. Tatham, 7 
 Ad. & Ell. (34 E. C. L. R.) 330. 
 
 •J Crease v. Barrett, 1 C, M. & R. 919. This decision was recognised in Doe 
 dem. Welsh v. Langjield, 16 M, & W. 497, where, because the evidence wrongly 
 rejected would not have advanced the case of the party applying, other and 
 stronger evidence of the same fact having been received which rendered that 
 rejected immaterial, a new trial was refused ; and see De Rutzen v. Farr, and 
 Wright v. Tatham, supra, p. 800. 
 
 ■■ Edwards v. Evans, 3 East 451. If, too, in any of these cases, whether of 
 misdirection, or improper reception or rejection of evidence, the party showing 
 cause will concede the particular matter or question to which the direction or 
 evidence applies, the other party is not entitled to a new trial : Moore v. Tuck- 
 well, 1 C. B. (50 E. C. L. R.) 607. Thus, where there were several issues, one 
 of them on a plea of liherum tenemcntum, and the judge improperly rejected 
 evidence applicable to that issue only, the court, after a verdict for the defend- 
 ant on several other issues, discharged a rule for a new trial without costs to 
 either party, on his consenting to a verdict for the plaintiff on that issue : 
 Hughes v. Hughes, 15 M. & W. 701. 
 
 ° Mortimer v. APCallun, 6 M. & W. 58 ; supra, note [q). 
 
 ' Wilson v. Rastall, 4 T. R. 753 ; Calcraft v. Gibbs, 5 T. R. 19.
 
 NEW TRIAL. 801 
 
 move for a new trial on the ground of misdirection." And it rarely 
 happens that the court will grant a new trial upon a point of law 
 Avhich has not *been taken at the trial ;'' and in no case p-^Q^o-i 
 where the objection, if taken, might have been removed by *- -* 
 evidence.^ The court has refused to grant a new trial, to let the 
 party into a defence of which he was apprised at the trial ;^ as to 
 give tlie defendant an opportunity of proving by way of defence the 
 illegality of a policy of insurance.^" But where the defendant in an 
 action on a policy failed to prove a breach of the Convoy Act, 
 through the mistake of a witness who had failed in producing the 
 necessary document from the Admiralty, the court granted a new 
 trial after a verdict for the plaintiff on the merits.*^ 
 
 Secondly, a new trial will be granted for error or misconduct of 
 the jury." The courts, however, do not interfere *for the p^Q^q-i 
 purpose of granting new trials, but in order to remedy some 
 
 " Robinson v. Cook, 6 Taunt. (1 E. C. L. R.) 336 ; and see Morrishv. Murrerj, 
 13 M. & W. 52. 
 
 "" Ritchie V. Bousjield, 7 Taunt. (2 E. C. L. R.) 309. As that the evidence was 
 not applicable to the particular thing it was tendered to prove, but to something 
 else : Ferrand v. Milligan, 7 Q. B. (53 E. C. L. R.) 730. Where no objection 
 was made to the admissibility of evidence until the judge commenced summing 
 up, the court afterwards refused a new trial on that ground : Abbott v. Parsons, 
 7 Ring. (20 E. C. L. R.) 563; and see Coxy. Kitchen, 1 B. & P. 338, where the 
 court refused to set aside a verdict on a point of law not taken at the trial, 
 where the justice and conscience of the case were with the verdict. If the 
 judge's note does not show that the point was taken at the trial, the court 
 will not allow it to be raised before them : Doe v. Benjamin, 9 Ad. & E. 
 (36 E. C. L. R.) 649; therefore counsel ought to make a formal tender of the 
 evidence, and request the judge to take a note of it: Gibbs v. Pike, 9 M. & W. 
 351. 
 
 y Malkin v. Vickerstaff, 3 B. & Aid. (5 E. C. L. R.) 89. 
 
 ^ Vei-non v. Hankey, 2 T. R. 113. But where, after a witness had been a short 
 time under examination, the judge expressed an opinion that the action could 
 not be supported, and the plaintiff was nonsuited, a new trial was granted on 
 the aflBdavit of the witness, to the effect that if not stopped he could have proved 
 the plaintiff's case : Edger v. Knapp, 5 M. & G. (44 E. C. L. R.) 753. 
 
 » Gist v. Mason, 1 T. R. 84. 
 
 » D'Aguilar v. Tobin, 2 Marsh. (4 E. C. L. R.) 265. 
 
 " As if the jury misapprehended the law : Gregory v. Tuffs, 1 C, M. & R. 310. 
 So where the verdict is in contravention of the law, from a desire in the jury to 
 take the exposition of the law into their own hands : Attorney- General v. Rogers, 
 11 M. & W. 670. So in an action on a policy of insurance against fire, one of 
 the conditions was a forfeiture of all benefit in case of fraud or false swearing 
 as to the amount of loss claimed ; the plaintiff claimed, and made an aflBdavit of 
 damage to the extent of 1085Z., and having sued for the amount, the jury, upon
 
 805 PROOFS — DUTY OF THE COURT. 
 
 It is a general rule that affidavits cannot be received from jurors 
 to show on what grounds they acted.** And although affidavits 
 may be admissible when made by jurors as to what is done openly 
 in court/ yet it was observed by the court, that the information had 
 better be derived from some other source ;** and the judge's notes on 
 r*8nR1 ^^^^^ point is conclusive.'' *The delivery of food to a retired 
 ^ jury, without showing that it was done by a party to the 
 
 cause, or that the refreshment had the effect of carrying the verdict, 
 is not a sufficient ground for setting aside the verdict.^ 
 
 The doctrine of nonsuits is founded on the ancient practice, accord- 
 ing to which the plaintiff was bound by himself or his attorney' to 
 appear at the. trial, prosecute his suit, and hear the verdict ; and in 
 case, after being called, he made default, he was decreed to have 
 abandoned his suit, and was nonsuitedy^ 
 
 This ancient practice has long been used as the medium by which 
 
 » Burgess v. Langley, 1 D. & L. 21, C. P. ; Harvey v. Hewitt, 8 Dowl. 598. 
 Where the judge, being of opinion that the plaintiff had made out no title, 
 directed a verdict for the defendant; and the jury being present, and no objec- 
 tion made at the time of entering the verdict, the Court refused an application 
 for a new trial on the affidavit of a juror that he had not concurred in the ver- 
 dict: Saville v. Lord Farnliam, 2 M. & Ry. 216 ; and see Everett v. Youells, 4 
 B. & Ad. (24 E. C. L. R.) 681. 
 
 p Roberts v. Hughes, 7 M. & W. 399. 
 
 1 Everett v. Youells, 4 B. & Ad. (24 E. C. L. R.) 681. Upon the trial of an in- 
 formation for a seditious libel, the jury, after having retired, upon their return 
 into court in order to deliver their verdict, it was uncertain whether all of them 
 were within hearing of what was declared by their foreman ; the court held, that 
 the judge properly refused to interfere after the verdict was recorded, or to act 
 upon a communication fi-om any of them ; but under such uncertainty, the court 
 would allow the defendant a new trial, if he were disposed to apply for it : R. v. 
 Wooler, 6 M. & S. 366. 
 
 ' Ibid. ; R. V. Grant, 5 B. & Ad. (27 E. C. L. R.) 1081 ; Van Nyvel v. Hunter, 
 3 A. & E. (30 E. C. L. R.) 243 ; Serjeant v. Chafy, 5 A. & E. (31 E. C. L. R.) 
 354. But although a record may be amended by the note of the judge, it can- 
 not be amended by his recollection: R. v. Virrier, 12 A. & E. (40 E. C. L. R.) 
 317. 
 
 » Everett v. Youells, 4 B. & Ad. (24 E. C. L. R.) 681 •, see Morris v. Vivian, 10 
 M. &W. 137. 
 
 ' lie may therefore be nonsuited at any time before the verdict : '<) Bl. Com. 
 376. 
 
 "See Co. Litt. 139. He maybe nonsuited also on a demurrer: Co. Litt. 
 139, h. Where notice of trial has been countermanded after the commission 
 day, but the record is not withdrawn, the proper course is to nonsuit the 
 phiintif}", and the defendant cannot move for the costs of the assizes, or take a 
 verdict for the defendant : Haworth v. Whalley, 1 Car. & K. (41 E. C. L. R.) 
 586.
 
 NONSUIT. 806 
 
 the court intimates an opinion that the plaintiff has not made out a 
 sufficient case for the consideration of the jury. The phiintiff is there- 
 fore formally called, although by himself or his counsel he has actu- 
 ally appeared in court. In conformity, however, with the old practice, 
 being called, he may if he choose appear, and if he do, the case must 
 go to the jury.'' On the other hand, the *plaintiff may of his r*oA7-| 
 own accord and for his own convenience eZ^^c^ to be nonsuited 
 at any time before the jury have delivered their verdict,^ and in that 
 case, he cannot afterwards be heard upon an application to set aside 
 the nonsuit.^ 
 
 Where an objection is taken in the nature of a demurrer to the 
 plaintiff's eviden ce, that, even admitting it to be true, it is insufficient 
 in point of law, if the judges accede to the objection the usual course 
 is to 
 be of 
 
 ____-.,-_- -^_. -jj--- _ _ _ -^ — — — „„ — „ 
 
 nonsuit"' the *plaintiff. But in such case, if the objection r^nr^o-i 
 f a doubtful nature, it is usual for the judge, either to 
 
 ^ Watkins v. Towers, 2 T. R. 281 ; Dewar v. Purday, 3 Ad. & E. (30 E. C. L. 
 R.) 166 ; Standijfe v. Clarke, 21 L. J., Ex. 129. The proper course is for the 
 plaintiff to appear and require the jud<fe to direct the jury in point of law in his 
 favor, and if the judge refuse to permit him to appear, and nonsuit him a'^ainst 
 his will, or refuse to direct the jury in his favor, the plaintiff may tender a bill 
 of exceptions and bring a writ of error : Corsar v. Reed, 21 L. J., Q. B. 18. The 
 plaintiS''s consent, ex^jress or implied, must always be had : 3 A. & E. (30 E. C. ■ 
 L. R.) !&'(>, supra. As the plaintiff cannot be nonsuited without consent, he may 
 refuse to do so, unless the defendant will consent to terms, e. g., that the court 
 above shall have the same power as to amending a variance that the Court of 
 Nisi Prius had. 
 
 y Anderson v. Shaw, 3 Ring. (11 E. C. L. R.) 391 ; Robinson v. Laivrence, 21 
 L. J., Ex. 36 ; Outhwaite v. Hudson, Ibid. 151. 
 
 ^ Simpson V. Clayton, 2 Ring. N. C. (29 E, C. L. R.) 467. So, if the plaintiff's 
 counsel elect to be nonsuited on an intimation from the court that he is entitled 
 to nominal damages only : Butler v. Dorant, 3 Taunt. 229 ; Hancock v. Podmore 
 1 B. & Ad. (20 E. (J. L. R.) 265. Or if he do so on the judge's proposing to leave 
 two questions to the jury, one of which is material, and of which there is prima 
 facie evidence : K. B. Trin. T. 1830. 
 
 * Where two issues were found for the plaintiff and two for the defendant, 
 with liberty reserved to the latter to move for a nonsuit, if the court should think 
 the issues found for the plaintiff immaterial, which was acquiesced in at the trial 
 by the plaintiff's counsel ; held, that a nonsuit might be entered, notwithstand- 
 ing the finding of some of the issues for the defendant : Skepherd v. Bishop of 
 Chester, 6 Bing. (19 E. C. L. R.) 437. 
 
 A plaintiff may be nonsuited in an undefended action : Halhead v. Abrahams, 
 3 Taunt. 81 ; and after payment of money into court: Gutteridge v. Smith, 2 II. 
 B. 374 ; or after a plea of tender : Anderson v. Shaiv, 3 Bing. 290. In replevin, 
 although the cause is tried on the defendant's record : Mann v. Lovejoy, R. & M. 
 (21 E. C. L. R.) 357. So on trial by proviso: Anderson v. Shaw, 3 Bing. (li
 
 808 PROOFS — DUTY OF THE COURT. 
 
 nonsuit the plaintiff, with leave to move to set aside the nonsuit and 
 enter a verdict for the plaintiff for a sum agreed on or ascertained 
 by the jury, or to permit the plaintiff to take a verdict, with liberty 
 to the defendant to move to enter a nonsuit. This seems to be dis- 
 cretionary on the part of the judge, who usually decides according 
 to the weight of his own opinion for or against the objection. 
 
 A plaintiff after a nonsuit may move without any leave reserved 
 to set aside the nonsuit ; but in that case, although the nonsuit was 
 improper, the court will do no more than set aside the nonsuit.'' 
 Upon such motion made without leave, if the nonsuit be not tena- 
 ble on the objection urged at the trial, the court will not support it 
 on another ground which was not urged, unless the objection be of 
 such a nature as to be incapable of removal." But a defendant can- 
 not move to enter a nonsuit without leave; and even, with leave, 
 he will be confined to the objections founded upon defects in evi- 
 dence taken at the trial ; for had the further objection been then 
 taken, the plaintiff might possibly have answered it by adducing 
 further evidence.'^ Where the nonsuit is in invitum, the plaintiff 
 may without leave move to set it aside, although he make no request 
 at the trial that the case may be left to a jury,* and submit merely 
 out of deference to the judge. The plaintiff, with leave reserved at 
 the trial, may move to have a nonsuit set aside, and a verdict en- 
 r^HOQT ^^^^'^ ^^^ ^™' *Such a reservation being made in open 
 court, the tacit consent of the jury and defendant is to be 
 implied.^ Leave is sometimes given to a defendant to move to set 
 aside a verdict and enter a nonsuit. But this cannot be done without 
 the plaintiff's consent; and, as the condition of such consent is that 
 
 E. C. L. R.) 290. So where there are issues in law and fact, and the defendant 
 has obtained judgment on the former : Paxton v. Popham, 10 East 365. He can- 
 not, it has been suggested, be nonsuited in an action where the issue is on the 
 defendant : Newhall v. Holt, 6 M. & W. 662. Yet if he does not appear he cer- 
 tainly may : Symes v. Larbij, 2 C. & P. (12 E. C. L. R.) 358. 
 
 *> Doe d. Latvrence v. Shawcross, K. B. Hil. 1825. And unless the defendant 
 at the trial has consented to leave being reserved for the plaintiff to move to 
 enter a verdict, the Court can only grant a new trial. 
 
 ■= Ibid. 
 
 ^ Driver v. Thompson, 4 Taunt. 294. 
 
 * Alexander v. Barker, 2 C & J. 136 ; Ward v. Mason, 9 Price 291 ; Garrow, 
 B., dissenfiente. But he cannot urge a ground of objection which he did not 
 urge at the trial : Waller v. Drakeford, 1 Stark. C. (2 E. C. L, R.) 482. 
 
 ' He should apply to the judge to reserve to the Court the powers of amend- 
 ment which he has under 3 & 4 Will. IV., c. 42, s. 23, which a like implied 
 consent will enable him to do.
 
 NONSUIT. 809 
 
 the case shall go to the jury,^ the defendant ■will not be entitled to 
 have a nonsuit entered, unless the jury give a verdict. 
 
 The defendant cannot insist on a nonsuit after he has addressed 
 the jury and examined witnesses.'' It has, as before mentioned, 
 been held that a bill of exceptions lies if the judge improperly 
 nonsuit.' 
 
 After an untenable verdict for the plaintiff, no liberty to enter a 
 nonsuit having been reserved, the court can only grant a new trial, 
 for otherwise the defendant would be deprived of his right to tender 
 a bill of exceptions.'' 
 
 Where the terms of a declaration are ambiguous, and taken in 
 one sense will, but taken in another sense will not, support the ver- 
 dict, and there is no evidence to support the allegation in the former 
 sense, the proper course* is (on leave given) to move to enter a non- 
 suit.' *A plaintiff in assumpsit may be nonsuited, although r^o-in-i 
 a co-defendant has let judgment go by default. "^ 
 
 A verdict set aside in part, must be set aside for the whole." 
 
 The practice of advising the jury as to the nature, bearing, ten- 
 dency and weight of the evidence, although it be a duty which 
 from its very nature must be, in a great measure, discretionary on 
 the part of the judge, is one which does not yield in importance to 
 the more definite and ordinary one of directing them in matters of 
 
 8 Dewar v. Purday, 3 Ad. & Ell. (30 E. C. L. R.) 166. 
 
 ^ Roberts v. Croft, 7 C. & P. (32 E. C. L. R.) 376. A nonsuit for not giving 
 material evidence within the county must be claimed at the trial : Howv, Pick- 
 arcl, 2 M. & W. 373 ; and see as to this, Clark v. Dunsford, 2 C. B. (52 E. C. L. 
 R.) 724. 
 
 ' Strofher v. Hutchinson, 4 Bing. N. C. (33 E. C. L. R.) 83 ; see supra, n. {x). 
 
 ^ Minchin v. Clement, 1 B. & Aid. 252 ; Mathews v. Smith, 2 Y. & J. 426. 
 
 ' Where the terms iised in a declaration founded on a penal clause in a statute 
 are ambiguous, they will after verdict be so construed as to sustain the verdict : 
 Lord Huntingtower v. Gardiner, 1 B. & C. (8 E. C. L. R.) 297 ; Avery v. Hoole, 
 2 Cowp. 825. And therefore where the declaration alleged in some counts the 
 " giving money for voting," and there was no evidence of a previous agreement 
 to give money, which was necessary to constitute the offence, the Court (leave 
 having been reserved to move to enter a nonsuit) directed a nonsuit to be 
 entered. For the declaration, to be sustainable, must be taken to import a pre- 
 vious agreement, and of that there was no evidence. 
 
 "^ Murphy V. Donlan, 5 B. & C. (11 E. C. L. R.) 178; Jones v. Gibson, Ibid. 
 758 ; Stuart v. Rodgers, 4 M. & W. 649. In Revett v. Brown, 2 M. & P. (17 E. 
 C. L. R.) 18 ; it was said this cannot be done in action of tort: sed vide Had- 
 drick V. Heslop, 12 Q. B. (64 E. C. L. R.) 267. 
 
 " R. v. Phillips, 1 Burr. 305 : Bernasconi v. Farebrother, 3 B. & Ad. (23 E, 
 C. L. R.) 372. 
 47
 
 810 PROOFS — DUTY OF THE JURY. 
 
 law." The trial by jury is a system admirably adapted to the investi- 
 gation of the truth ; but in order to obtain the full benefit to be 
 derived from the united discernment of a jury, it must be admitted 
 to be essential that their attention should be skilfully directed to the 
 points material for their consideration. 
 
 [*811] *CHAPTER III. 
 
 THE DUTY OF THE JURY. 
 
 A JURY taken from the body of the community may well be pre- 
 sumed to be possessed of such knowledge and experience, derived 
 from their intercourse with society, as will peculiarly fit them for the 
 determination of all disputed facts arising out of the ordinary trans- 
 actions of life. It must, however, be recollected, that jurors, unac- 
 customed as they usually are to judicial investigations, require, in 
 complicated cases, all the aid which can be derived from the experi- 
 ence and penetration of the judge, to direct their attention to the 
 essential points, and enable them to arrive at a just conclusion. The 
 law, in its wisdom, ultimately relies upon their integrity and under- 
 standing, but nevertheless anxiously prepares the way for a correct 
 conclusion, by excluding from their consideration all such evidence 
 as is likely to embarrass, mislead, or prejudice them in the course of 
 their inquiry. So far the law proceeds by certain and definite rules. 
 Much yet remains to be done of a nature which cannot be defined : 
 to divest a case of all its legal encumbrances ; to resolve a compli- 
 cated mass of evidence into its most simple elements ; to exhibit clearly 
 the connection, bearing and importance of its distinct and separated 
 parts, and their combined tendency and eifect, stripped of every ex- 
 trinsic and superfluous consideration which might otherwise embar- 
 rass or mislead : and to do this in a manner suited to the comprehen- 
 sion and understanding of an ordinary jury, is one of the most ardu- 
 
 ° See 3 Couim. 375. When the evidence is gone tln-ough on both sides, the 
 judge, in the presence of the parties, the counsel, and all others, sums up the 
 whole to the jury, omitting all superfluous circumstances : observing wherein 
 the main question and principal issue lies ; stating what evidence has been 
 given to support it, with such remarks as he thinks necessary for their direc- 
 tion, and giving them hia opinion in matters of law arising upon the evidence.
 
 TO WEIGH PROBABILITIES. 812 
 
 ous as well as the most important duties incident to *the [-^n-iQ-i 
 judicial office.'' There is, perhaps, no instance in which the •- *^-' 
 natural and acquired powers of the mind are more strikingly and 
 beneficially exerted than in a court of justice, where a confused mass 
 of evidence relating to an intricate case is, by the effect of a vigor- 
 ous, acute and comprehensive mind, reduced into regularity and 
 order. 
 
 On the discharge of this great duty the dearest interests of society, 
 the very issues of life and death, frequently depend. 
 
 To offer any remarks on this head would be irrelevant, as well as 
 presumptuous. Some observations will, under another division, be 
 made upon the force and weight of evidence, and on the general prin- 
 ciples which relate to that branch of the subject. 
 
 The law, to use an ordinary phrase, has no scales wherein to weigh 
 different degrees of probability,'' still less to *ascertain what (-^r.-,r,-| 
 weight of evidence shall amount to absolute proof of any dis- ^ 
 puted fact. 
 
 Its business is to define, to distinguish, and to apply legal conse- 
 quences to ascertained facts ; but whether a fact be probable or im- 
 probable, true or false, admits of no legal definition or test. The 
 principles on which the investigation and ascertainment of truth de- 
 pend, are fixed and invariable, however the particular processes pre- 
 scribed by different systems of law for the purpose of investigation 
 may vary. 
 
 " Notwithstanding the splendid advantages which in practice are known to 
 emanate from this wise and venerable institution, it is not to be disguised that 
 in some, and those essential, respects, it is liable to objections, from which an 
 ordinary tribunal, constituted of professional judges, would be more likely to be 
 free. Jurors are liable to pi-ejudice and bias, and even partiality, from local 
 and personal connection ; their very prejudices in favor of right may frequently 
 tempt them to put their oaths in peril, by their desire to act according to their 
 own notions of justice, when those are at variance with defined and general, but 
 wise rules of law ; they act but casually ; they have no professional character to 
 sustain ; they assign no reasons for their decisions ; in effect they are not amen- 
 able for corrupt decisions ; and it can rarely happen that their individual and 
 personal characters are at stake. In many instances, too, they are ill suited, 1)y 
 their previous habits, to decide on the effect of legal instruments, and other 
 matters involved in and complicated with legal rules and presumptions. If such 
 objections were not in practice to be counteracted by the discretionary aid, ad- 
 vice and guidance of the presiding judge, and if the errors and mistakes of juries 
 were not to be subject to revision and correction, it must be admitted b}' its warm- 
 est admirers that this mode of trial would frequently be precarious and unsatis- 
 factory. 
 
 '' Infra, note (c).
 
 813 PROOFS — DUTY OF THE JURY. 
 
 As the power of discriminating between truth and falsehood de- 
 pends rather upon the exercise of an experienced and intelligent 
 mind than upon the application of artificial and technical rules, the 
 law of England has delegated this important office to a jury of the 
 country,^ 
 
 One great advantage derived from this venerable institution is, 
 that this mode of trial excludes a number of technical and artificial 
 rules and distinctions, which, but for the complete and absolute sepa- 
 ration of law from fact, would be sure to arise. Were the decision 
 of facts to be constantly referred to the same individual, the frequent 
 occurrence of similar combinations of facts would tempt him to frame 
 general and artificial rules, which, when they were applicable, would 
 save mental exertion in particular instances; and perhaps a laudable 
 wish to decide consistently, and that fondness for generalizing which 
 ]s incident to every reflecting mind, would tend to the same point, 
 and would lead to the introduction of refined and subtle distinctions. 
 A juror, on the contrary, called on to discharge his duty but seldom, 
 possesses neither inclination nor opportunity to generalize and refine; 
 unfettered, therefore, by technicalities, he decides according to the 
 natural weight and force of the evidence.*^ 
 
 r*'i!lJ.1 * Although all questions of pure fact belong peculiarly to 
 the province of a jury,*' who are to be guided in their deci- 
 
 " Beccaria (sect. 14) thus expresses himself: Ma questa morale certezza di 
 prove e piu facile il sentirla che I'esattamente definirla. Percio io credo ottima 
 lege quella, che stabilisce assessor! al giudice principale presi dalla sorte e non 
 dalla scelta, per chh in questo caso h piu sicura I'ignoranza che giudica per 
 sentimento, che la scienza che giudica per opinione. Again he says : Io parlo 
 di probabilita in materia di delitti, che par meritar pena debbono esser certi. 
 Ma svanira il paradosso, per chi considera che rigorosamente la certezza morale 
 non e che una probabiliti\, ma probabilitil tale che fe chiamato certezza, perchfe 
 ogni uomo di buon senso vi acconsente necessariemente per una consuetudine, 
 nata dalhi necessita di agire ed anteriore ad ogni speculazione ; la certezza che 
 se richiede peraccertare un uomo reo fe dunque queUa che determina ogni uomo 
 nelle operazioni piCi importante della vita. 
 
 * As to the discharging of a jury where they cannot agree, see Morris v. 
 Davies, 3 C. & P. (14 E. C. L. R.) 427. There, on an issue out of Chancery in 
 
 ' In civil cases the jury are to determine according to the weight of the evi- 
 dence : Crahtree v. lieed, 50 111. 20G ; Barnelt v. Warily 42 Vt. 80 ; Knowles v. 
 Sc7-ihner, 57 Me. 495; Silver Minimj Co. v. Fall, 6 Nev. 116. It is suflicicnt if 
 the evidence on the whole agrees with and supports the hypothesis which it is 
 adduced to prove ; but in criminal cases it must be such as to produce a moi-al 
 certainty of guilt and to exclude any other reasonable hypothesis : James v. 
 Slate, 45 Miss. 572.
 
 LEGAL PRESUMPTIONS, ETC. 814 
 
 sion by their conscientious judgment and belief, yet it is to be recol- 
 lected, that in many instances the eflfect of particular evidence is the 
 subject of legal definition and cognizance, as in the case of all legal 
 presumptions resulting in particular fiicts. It will be proper, there- 
 fore, in the first place, briefly to inquire to what extent a jury is 
 restrained by legal rules ; and, in the next place, to make some general 
 observations on the natural force and weight of evidence. 
 
 With a view to the first consideration, that is, how far the law 
 itself interferes as to the force or measure of evidence, it is to bp 
 recollected, that except in the few instances where a jury determine 
 by the actual evidence of their senses, all evidence is either, first, 
 direct; that is, where witnesses state or depose to facts of which they 
 have had actual knowledge: or secondly, it is indirect ; and indirect 
 evidence is either artificial or natural. Artificial, where the law, by 
 arbitrary appointment, annexes to particular evidence a force or effi- 
 cacy beyond that which naturally belongs to it; as in the case of 
 records, which, for the sake of public convenience, are usually made 
 final *and conclusive evidence of the facts recorded.® So in r*Qir-]. 
 all instances of legal presumptions, whether they be absolute 
 and conclusive,*" like the 2)rcesumptiones juris et de jure of the Roman 
 law, or, as the prcesuniptiones juris, be operative only until they be 
 rebutted by proof to the contrary : or such artificial evidence may 
 be of a conventional nature, as where the parties by deed or writ- 
 ten agreement constitute the particular instrument to be the appro- 
 priate expositor of their intentions, and the legal memorial of the 
 facts which it contains. In these and some other instances the law 
 prescribes the extent to which the evidence shall operate; and in 
 these and all other cases, where a rule of law intervenes, a jury is 
 bound by that rule of law, even though it be in opposition to their 
 own conclusion as to the truth of the fact drawn from all circum- 
 stances. Or, secondly, the evidence is purely natural, where the jury 
 decide according to the natural weight and effect of the circum- 
 stances, either by the aid of experience, where former experience 
 supplies such natural presumptions, or by the aid of reason exercised 
 upon the circumstances, or by the joint and united aid of experience 
 and reason.^ 
 
 order to inform the conscience of the Chancellor, the jury could not agree, and 
 the parties refusing to consent to discharge them, the judge did so on his own 
 responsibility. 
 
 « Supra, p. 742. ' Siqn-a, p. 747. 
 
 « Sir W. Blackstone, 3 Comm. 371, following the example of Lord Coke,
 
 816 PROOFS — DUTY OF THE JURY. 
 
 *Juries are bound by all the rules and presumptions of 
 L -J law, as far as they apply : they are to confine themselves 
 strictly to the matters put in issue by the pleadings ; they are bound 
 by the admissions of the parties upon record ; and although they are 
 not bound by estoppels, as the parties might have been had the matter 
 of estoppels been pleaded, yet they are usually bound by legal estop- 
 pels which could not have been pleaded, and also by all such matters 
 in the nature of estoppels as in point of law conclude the parties. 
 They are bound to give the proper legal effect to all instruments es- 
 tablished by competent evidence, and to notice all matters which are 
 noticed by the court ; they are to be governed by the order of proof 
 vthich the law prescribes, and their verdict must be founded on the 
 evidence adduced in the cause. 
 
 It is now perfectly settled that a juror cannot give a verdict 
 founded on his own private knowledge ; for it could not be known 
 whether the verdict was according to or against the evidence :^ it is 
 very possible that the private grounds of belief might not amount to 
 legal evidence. 
 
 And if such evidence were to be privately given by one juror to 
 the rest, it would want the sanction of an oath, and the juror would 
 
 classes all circumstantial evidence as violent, probable, or light presumptions ; 
 making no distinction between such inferences as result immediately in respect 
 of some association pointed out by previous experience, and those which are 
 derived by the aid of reason exercised upon the special circumstances. Accord- 
 ing to this classification, the presumption is violent where the circumstances 
 necessarily attend the fact ; probable where the circumstances usually attend 
 the fact ; and light presumptions, or rash presumptions, are those which have 
 no weight or validity at all. The last branch of the division seems to be wholly 
 useless, for an inference of no tveight is a mere unwarrantable assumptio7i. 
 The division of all circumstantial evidence into circumstances which necessarily 
 or usually attend such facts is one of a questionable nature, inasmuch as it 
 tends to confound those inferences wliich are the pure result of experience with 
 those which result either from reason alone, exercised upon the circumstances, 
 or upon reason and experience jointly. It is very possible that circumstances 
 may supply moral proof, although not one of them be such as either necessarily 
 or usually attends the fact ; the infei-ence may be entirely independent of asso- 
 ciations founded on experience, and rest wholly upon the exclusive force and 
 nature of particular circumstances. Thus, in an instance cited below, where a 
 highway robber was struck on the face by the prosecutor with a key, and was 
 identified by the complete impression which he bore on his face, the circum- 
 stance was conclusive, but it was neither a necessary nor an usual one, with 
 reference to the fact to be proved. 
 
 h y> Comm. :'j7') ; And. 321 ; Beg. v. Eosser, 7 C. & P. (32 E. C. L. R.) 648 ; 
 Mauley v. Shaw, Car. & N. (41 E. C. L. R.) 361.
 
 LEGAL PRESUMPTIONS, ETC. 816 
 
 not be subject to cross-examination. If, therefore, a juror know any 
 fact material to the issue, he ought to be sworn as a witness, and is 
 liable to be cross-examined ; *and if he privately state such p^.g.,--, 
 facts it will be a ground of motion for a new trial.' It some- L -* 
 
 times happens that evidence which is admitted for one purpose may 
 be no evidence for another purpose, and in such a case a jury is bound 
 to apply the evidence so fixr only as it is legally applicable. Thus, if 
 A. and B. be tried at the same time, a confession made by the one, 
 but which criminates the other, ought not to operate with the jury 
 against the latter. 
 
 Where the jury find a general verdict they are bound to apply the 
 law as delivered by the court, in criminal as well as civil cases. 
 
 Previous to the remarks which will be made on the force and weight 
 of evidence, Avhether direct or circumstantial, it is to be observed, 
 that the measure of proof sufficient to warrant the verdict of a jury 
 varies much, according to the nature of the case. 
 
 Evidence which satisfies the minds of the jury of the truth of the 
 fact in dispute, to the entire exclusion of every reasonable doubt, 
 constitutes full proof of the fact; absolute mathematical or metaphy- 
 sical certainty is not essential, and in the course of judicial investi- 
 gations would be usually unattainable. 
 
 Even the most direct evidence can produce nothing more than such 
 a high degree of probability as amounts to moral certainty. From 
 the highest degree it may decline, by an infinite number of gradations, 
 until it produces in the mind nothing more than a mere preponderance 
 of assent in favor of the particular fact. 
 
 The distinction between full proof and mere preponderance of evi- 
 dence is in its application very important. lu all criminal cases what- 
 soever, it is essential to a verdict of condemnation, that the guilt of 
 the accused should be fully proved ; neither a mere preponderance of 
 evidence, nor any weight of preponderant evidence, is sufficient for 
 the *purpose, unless it generate full belief of the fact to the . 
 exclusion of all reasonable doubt, •- -■ 
 
 But in many cases of a civil nature, where the right is dubious, 
 and the claims of the contesting parties are supported by evidence 
 nearly equipoised, a mere preponderance of evidence on either side 
 may be sufficient to turn the scale. This happens, as it seems, in 
 all cases where no presumption of law, or prima facie right, operates 
 in favor of either party ; as, for example, where the question be- 
 tween the owners of contiguous estates is, whether a particular tree 
 
 'And. 321.
 
 81S PROOFS — DUTY OF THE JURY. 
 
 near the boundary grows on the land of one or the other. But 
 even where the contest is as to civil rights only, a mere preponder- 
 ance of evidence, such as would induce a jury to incline to the one 
 side rather than the other, is frequently insufficient. It would be 
 so in all cases where it fell short of fully disproving a legal right 
 once admitted or established, or of rebutting a presumption of law. 
 If a party claimed as devisee against the heir at law, full proof of 
 the devise with all its formalities, would be essential; circumstantial 
 evidence, which merely showed it to be more probable that the testa- 
 tor had made a will in favor of the party claiming as devisee, than 
 that he had not done so, would be insufficient. So, were a devise to 
 be fully established by one who claimed as devisee, it would not be 
 sufficient to show a mere probability that the devisor had made a sub- 
 sequent will, revoking the former.'' One who seeks to charge another 
 with a debt, must do so by full and satisfactory proof; and on the 
 other hand, where a debt has once been established by competent 
 proof, the debtor cannot discharge himself but by full proof of satis- 
 faction. Again, where the law raises a presumption in favor of the 
 fact, the contrary must be fully proved, or at least such facts must 
 be proved as are sufficient to raise a contrary and stronger presump- 
 tion.' Thus, the law presumes a man to be innocent of a crime 
 „ *until his guilt be proved; but if the fact be proved that A. 
 ^ killed B., then the presumption of law which before was in 
 
 favor of A., is now against him, and malice will be presumed, unless 
 he can establish flicts which justify or extenuate the act."' 
 
 Another distinction to be observed upon is, between j9rm<f facie 
 and conclusive evidence : primd facie evidence is that which, not 
 being inconsistent with the falsity of the hypothesis, nevertheless 
 raises such a degree of probability in its favor that it must prevail if 
 it be accredited by the jury, unless it be rebutted or the contrary 
 ^rovedi', conclusive evidence, on the other hand, is that which ex- 
 cludes, or at least tends to exclude, the possibility of the truth of any 
 other hypothesis than the one attempted to be established. All evi- 
 dence is strong or weak by comparison : in civil cases slight evidence 
 of right or title is sufficient, as against a stranger who possesses no 
 color of title. Thus the mere possession of goods by one who found 
 them, is evidence of property as against a wrongdoer, in an action 
 of trover." The occupation of land, however recent, Avill enable the 
 
 ^ Ilarwood v. Goodrir/ht, Cowp. 87. ' Sec Ji. v. HasUngfeld, supra, p. 749. 
 " See tit. Murder. 
 
 ° Armory v. fJelamirie, Str. 505 ; 1 Smith L. C. and notes ; Bridges v. Ilawkes^ 
 21 L. J., il C. 75.
 
 PRIMA FACIE AND CONCLUSIVE EVIDENCE. 819 
 
 occupier to maintain trespass against a stranger." So, in a settlement 
 case, proof that a remote ancestor of the pauper was settled in the 
 appelhint parish would be sufficient primd facie evidence, and would 
 prevail unless it were rebutted by proof of some later settlement. So, 
 a special custom in a particular manor may be proved by a single 
 instance in whicli it has been acted upon.'' So, a prescription may in 
 some instances be supported by proof of user for twenty years. On 
 the other hand, in criminal cases, it is essential that tlie evidence 
 should be of a conclusive nature. But here it is to be observed, that 
 it very frequently happens in criminal, as well as civil proceedings, 
 *that evidence which in itself is but inconclusive, derives a rt-oyn-i 
 conclusive quality from mere defect of proof on the part of 
 the adversary or accused. 
 
 Where a party, being apprised of the evidence to be adduced 
 against him, has the means of explanation or refutation in his power, 
 if the charge or claim against him be unfounded, and does not ex- 
 plain or refute that evidence, the strongest presumption arises that 
 the charge is true, or the claim well founded. It would be contrary 
 to all experience of human nature and conduct to come to any other 
 conclusion. 
 
 Evidence to be weighed by a jury consists either in, 1st, the direct 
 testimony of witnesses ; or 2dly, indirect or circumstantial evidence I'l 
 or 3dly, in both, either united or opposed to each other. The nature 
 and force of such evidence may be considered either separately or in 
 conflict. 
 
 First, as to the direct testimony of witnesses. The credit due to 
 the testimony of witnesses depends upon, 1st, their integrity and 
 honesty ; 2dly, their ability ; 3dly, their number, and the consistency 
 of their testimony ; 4thly, the conformity of their testimony with 
 experience ; and 5thly, the coincidence of their testimony with col- 
 lateral circumstances. 
 
 1st, Their integrity : A witness, to be trust-worthy, must be both 
 willing and able to declare the truth. His credibility is founded, in 
 
 ° Catteris v. Cowper, 4 Taunt. 547 ; Purnell v. Young, 3 M. & W. 288 ; Whit- 
 Ungton v. Boxall, 5 Q. B. (48 E. C. L. R.) 139. 
 
 P See tit. Custom. 
 
 ^ Such indirect evidence corresponds vv^itli the signa of the Roman law, and 
 ViWh the aijunta or TeKfi7/pia of the Greeks, and supplied principally the materials 
 of the artificiaUs probatio of the Roman lawyers. Argument, according to 
 Quinctilian, is defined to be " ratio prohationem prcestans qua, colligitur aliud 
 per aliud, et qucc quod est dubium per id quod duhium non est conjirmat ;''^ see 
 Glassford's Essay on the Principles of Evidence 563.
 
 820 PROOFS — DUTY OF THE JURY. 
 
 the first instance, upon experience of human veracity, from -which 
 
 the law presumes that a disinterested witness, who delivers his testi- 
 
 r*oo-| -1 mony under *the sanction of an oath, and under the peril of 
 
 the temporal inflictions due to perjury, will speak the truth. 
 
 Although the law does not exclude persons actually convicted of 
 infamous crimes,' and such as have an interest in the event of the 
 suit, or in the record.^ yet the credit of a witness is always for the 
 consideration of the jury.^ 
 
 A witness of depraved and abandoned character may not be un- 
 worthy of credit, where it appears that there is not the slightest 
 motive or inducement for misrepresentation ; for there is a natural 
 tendency to declare the truth, which is never wholly eradicated, even 
 from the most vicious minds ; and the danger of detection, and the 
 risk of temporal punishment, may operate as restraints upon the 
 most unprincipled, even where motives for veracity of a higher nature 
 are wantino;. 
 
 But it is to be remarked, that it is diflScult to detect the motives 
 which may influence a depraved and corrupted mind ; and hence it 
 is for the jury to consider, Avhether the apparent want of motive to 
 deceive be sufiicient to accredit an exceptionable witness, and whether 
 some assurance of the actual absence of such a motive be not neces- 
 sary to warrant their confidence. A jury may, no doubt, in a crimi- 
 nal case, convict on the testimony of an accomplice, but then it is 
 expected that the tainted credit of the witness should be supported 
 by circumstances confirmatory of his testimony in material points ; 
 so that in practice such a witness is considered to be incredible, unless 
 his testimony be supported by undoubted facts and unexceptionable 
 witnesses.^ 
 
 •■ Siqjra, tit Witness. ° Ibid. 
 
 ^ It is a maxim, falsus in uno, falsus in omnibus^ that if a witness is dis- 
 covered on the trial to be wilfully false in one statement, the jury may disbe- 
 lieve him altogether : State v. Brantley, 63 N. C. 518 ; Callahan v. Shaw, 24 
 Iowa 441 ; Comm. v. Billings, 97 Mass. 405 ; PauUtte v. Brown, 40 Mo. 52 ; 
 Brett V. Catlin, 47 Barb. 404; Peoples. Strong, 30 Cal. 151; Blanchard v. 
 Pratt, 37 111. 243 ; Mead v. McGraw, 19 Ohio St. 55 ; State v. Spencer, 64 N. C. 
 316. 
 
 ^ There is no rule of law that I'cquires absolutely that the testimony of an ac- 
 complice should be corroborated. The jury may, if thoy think pi'oper, convict 
 upon such evidence alone: State v. Stehhins, 29 Conn. 463 ; State v. Watson, 31 
 Mo. 361 ; Gray v. Peojde, 26 111. 344. The testimony of an accomplice must be 
 corroboi-ated by evidence tending to connect the defendant with the commission 
 of the offence charged : Ui^ton v. State, 5 Clarke 465 ; State v. Hoioard, 32 Vt.
 
 CREDIT OF WITNESS — INFLUENCE. 821 
 
 It frequently happens that a witness labors under some influence 
 arising from natural affection, near connection, or mere expectation 
 of contingent benefit or evil, which may afford a strong temptation 
 to perjury. In these as in so many other cases, it is for the jury to 
 estimate the *degree of influence by which the testimony of r-^o.-,.^-| 
 a witness is likely to be corrupted, and to determine whether 
 under all the circumstances, he may be the witness of truth.' 
 
 In arriving at this conclusion, a consideration of the demeanor of 
 the witness upon the trial, and of the manner of giving his evidence, 
 both in chief and upon cross-examination, is oftentimes not less 
 material than the testimony itself.'' An over-forward and hasty zeal 
 on the part of the Avitness in giving testimony which will benefit the 
 party whose witness he is, his exaggeration of circumstances, his 
 reluctance in giving adverse evidence, his slowness in answering, his 
 evasive replies, his affectation of not hearing or not understanding 
 the question, for the purpose of gaining time'' to consider the effect 
 
 *• The Roman law, De testibus, provides thus : — " Testium fides diligenter ex- 
 aminanda est. Ideoque in persona eorum exploranda erunt impiHmis conditio cu- 
 Jusque; utrum quis decurio an plebeius sit, vero et an honestce et inculpatoe vitce, 
 an notatus quis et reprehensihilis ; an locuples vel egens sit ut lucri causa quid 
 facile admittat ; vel an inimicus ei sit versus quern testimonium fert, vel amicus 
 ei sit 2)ro quo testimonium dat. Nam si careat suspicione testimonium, vel prop- 
 ter 2'>CTsonam a qua fertur quod honesta sit, vel propter causam quod 7ieque lucri 
 neque gratice neque inimicitice causa fit, admittendum.'''' 
 
 " Sir W. Bhickstone, 3 Com. 373, observes, "In short, by this method of ex- 
 amination, and this only, the persons vfho are to decide upon the evidence have 
 an opportunity of observing the quality, age, education, understanding, behavior 
 and inclinations of the witness : in which points all persons must appear alike, 
 when their depositions are reduced to writing and read to the judge in the ab- 
 sence of those who made them, and yet as much may be frequently collected 
 from the manner in which the evidence is delivered as the matter of it." 
 
 " Mr. Evans, 2 Pothier 258, observes, that " a Welsh witness, who intends to 
 give unfair testimony, always affects an ignorance of the English language ; in 
 
 380. The uncorroborated testimony of two accomplices will not sustain a ver- 
 dict of guilty : Johnson v. State, 4 Greene 65. See further as to accomplices 
 and the necessity that they should be corroborated : Phillips v. State, 34 Ga. 
 502 ; Sumpter v. State, 11 Fla. 247 ; McKenzie v. State, 24 Ark. 636 ; Benton v. 
 Henry, 2 Cald. 83 ; U. S. v. Harris, 2 Bond 311 ; Parsons v. State, 43 Ga. 197 ; 
 Lopez V. State, 34 Tex. 133 ; Pitcher v. People, 16 Mich. 142 ; Montgomery v. 
 State, 40 Ala. 684 ; Cummings v. State, 4 Kans. 225 ; State v. Moore, 25 Iowa, 
 128 ; State v. Potter, 42 Vt. 495 ; People v. Haynes, 55 Barb. 450 ; 38 How. Pr. 
 369 ; Frazer v. People, 54 Barb. 306 ; Brown v. State, 18 Ohio St. 496 ; Miller v. 
 Miller, 20 N. J. (Eq.) 216 ; People v. Arjier, 39 Cal. 403 •, People v. Melvane, 
 Ibid. 614 5 State v. Litchfield, 58 Me. 267.
 
 823 PROOFS — DUTY OF THE JURY. 
 
 r*823"1 ^^ *his answer ; precipitancy in answer, without waiting to 
 hear or to understand the nature of the question ; his 
 inability to detail any circumstances wherein, if his testimony were 
 untrue he would be open to contradiction, or his forwardness in 
 minutely detailing those where he knows contradiction to be impossi- 
 ble ; an aifectatjon of indifference ; are all to a greater or less extent 
 obvious marks of insincerity. 
 
 Oa the other hand, his promptness and frankness in answering 
 questions without regard to consequences, and especially his unhesi- 
 tating readiness in stating all the circumstances attending the trans- 
 action, by which he opens a w^ide field for contradiction if his testi- 
 mony be false, are, as well as numerous others of a similar nature, 
 strong internal indications of his sincerity. The means thus afforded 
 by a viva voce examination, of judging of the credit due to witnesses, 
 especially where their statements conflict, are of incalculable advan- 
 tage in the investigation of truth ; they not unfrequently supply the 
 only true test by which the real characters of the witnesses can be 
 appreciated."' 
 
 2d. Their ahility. The ability of a witness to speak the truth 
 ^,^^ must of course depend on the opportunities wdiich he has 
 *- -* had of observing the fact,'' the accuracy *of his powers of 
 
 consequence of which, the effect of cross-examination is not only weakened by 
 the intervention of an interpreter, but the witness has time to collect and pre- 
 pare his answer. An ignorant witness will, however, frequently express himself 
 with doubt and hesitation, out of mere awkwardness, or from superabundant 
 caution, especially if he imagine that there is any design to entrap him into ex- 
 pressions contrary to his real meaning. 
 
 " This kind of hesitation is very general with such persons when plied with 
 questions of an hypothetical nature, and when the answer is not so much an act 
 of testimony as of reasoning ; such as, If it had been so, must you not have recol- 
 lected, &c. AVhere proof is actually given of a fact which a witness could not 
 but know and recollect, his expressing himself with doubt and uncertainty is to 
 be regarded as an act of wilful misrepresentation." 
 
 ^ Tti magis scire potes quanta Jides habcnda sit testihus qiife et cujus digni- 
 tatis et quantce cestimationis sunt et qui simpliciter visi sunt dicere, utrum 
 unum eundemqiie meditatum sermonem attulerint,an ad ea qua; interrogaveras ex 
 tempore vei'isimilia resjjonderint.''^ Adrian's Epistle to Varus, legate of Cilicia; 
 Ff. 22 ; 5, 3. 
 
 " When the guilt of the prisoner depends whoUij on proof of identity, it is im- 
 possible to ini(uire too minutely into the means and opportunity which the wit- 
 nesses had of observing the person, so as to be able to speak with certainty. 
 Many instances have occurred in which woll-intcntioned witnesses have sworn 
 positively in this respect, and yet have been mistaken. I have frequently heard 
 Mr. J. Bayley observe to juries, that fear has a very different effect upon differ-
 
 ABILITY OF WITNESSES. 821 
 
 discerning/ and the faithfulness of his memory in retaining the facts 
 once observed and known. 
 
 Where a witness testifies to a fact which is wholly or partially the 
 result of reason exercised upon particular circumstances, it is obvious 
 that the reasons of the witness for drawing that conclusion are of the 
 most essential importance for the purpose of ascertaining whether his 
 conclusion was a correct one ; although it should be borne in mind 
 that the reasons which a witness gives for his belief are those which 
 occur to him upon his examination, and are frequently diflferent from 
 those which actually produced his belief or opinion. 
 
 These observations apply with peculiar force to all questions of 
 skill and science, and even to many of mere ordinary fact : thus, 
 where a witness is called to state that another witness is not to be 
 believed upon his oath, his grounds for arriving at that conclusion are 
 of the highest importance. Where, on the other hand, a witness 
 states the impression on his senses, by any subject-matter of frequent 
 experience, his reasons are of little weight; he will frequently assign 
 a bad reason where his knowledge is certain. 
 
 The probability that the witness had originally a clear perception 
 of the fact and its circumstances, is strengthened and confirmed by 
 the consideration that they were of such a nature as were likely to 
 attract his attention. On the other hand, it is diminished by the 
 consideration *that the transaction was remote, and such as ^ 
 
 was not likely to excite notice and observation.^ L " -^ 
 
 Such considerations operate strongly where detailed evidence is 
 given of oral declarations, after the lapse of a considerable interval 
 of time. Ever}'' man's experience teaches him how fallible and 
 treacherous the human memory in such cases is. In its freedom from 
 this defect consists one great excellence of documentary evidence, 
 and its main superiority over that which is merely oral ; and on this 
 
 ent persons ; in some it prevents the clear perception, whilst in others it assists 
 in making an indelible impression, 
 
 y See Gilb. Law of Ev. 151, 2d ed. 
 
 ^ C. B. Gilbert, in his Law of Evidence 151, 2d edit., says, "Another thing 
 that would render his (a single witness's) testimony doubtful, is the not giving 
 the reasons and causes of his knowledge ;" and again, " The same may be said 
 as to persons who take upon them to remember things long since transacted, 
 for if the matter be frivolous they ought to tell the causes of their memory, 
 otherwise the memory is little to be accredited ; for they are rather to be sup- 
 posed as rash persons who take upon them to swear what they do not perfectly 
 remember, than that they are really under the awe and conscience of an oath ; 
 for there they would be able to tell the reason and certain marks of their re- 
 membrance." Sed qncere.
 
 825 PROOFS — DUTY OF THE JURY. 
 
 principle it is, that the law, out of policy, frequently deems mere oral 
 evidence to be too weak, and requires a written voucher to prove the 
 fact.'' 
 
 Of all kinds of evidence, that of extra-judicial and casual declara- 
 tions is the weakest and most unsatisfactory; such words are often 
 spoken without serious intention, and they are always liable to be 
 mistaken and misremembered, and their meaning is liable to be mis- 
 represented and exaggerated.^ 
 
 *A hearer is apt to clothe the ideas of the speaker, as be 
 '-"'-' understands them, in his own language, and by this trans- 
 lation the real meaning must often be lost. A witness, too, who is 
 not entirely indifferent between the parties, will frequently, without 
 being conscious that he does so, give too high a coloring to what has 
 been said. 
 
 The necessity for caution cannot be too strongly and emphatically 
 impressed, where particular expressions are detailed in evidence, 
 which were used at a remote distance of time, or to which the atten- 
 tion of the witnesses was not particularly called, or where miscon- 
 ception was likely to arise from their situation and the circumstances 
 under which they were placed, or from the prejudice of the witness, 
 especially if his object was to extract an admission for the purposes 
 of the cause. *^ 
 
 * See the Statute of Frauds, &c. 
 
 * Finalmente e quasi nulla la credibilita del testimonio,quando si faccia delle 
 parole un delitto, poichfe il tuono, il gesto, tutto cio che precede, e cid che siegue, 
 le differenti idee, che gli uomini attacano alle stesse parole, alterano, e modifi- 
 cano in maniera i detti di un uomo, che e quasi impossibile, il ripeterle, quali 
 precisamente furon dette. Di piu le azioni violenti, e fuori dell' uso ordinario, 
 quali sono i veri delitti,lascian tracciadi se nella moltitudine delle circonstanze, 
 e negli effetti che ne derivano, ma le parole non rimangono che nella memoria 
 per 16 pill infidele e spesso sedotta dagli ascoltanti. Egli h adunque di gran 
 lunga piu facile una alunnia sulle parole, che sulle azioni di un uoma, poichfe 
 di questc quanto niaggior numero di circostanze si adducono in prova, tanto 
 niaggiori iiiezzi si sommistrano al reo per giustificarsi. Beccaria, sec. 13. 
 
 I once heard a learned judge (now no more), in summing up on a trial for 
 forgery, inform the jury that the prisoner, in a conversation which he had had 
 with one of the witnesses, had said, " I am the drawer, the acceptor, and the 
 endorser of the bill:" whilst the learned judge was commenting on the force 
 of these expressions, he was, at the instance of the prisoner, set right as to the 
 statonient of the witness, which was, that the prisoner had said, " I I>:noic> the 
 drawer, acceptor, and the endorser of tlie bill." Had the witness, and not the 
 judge, made the mistake, the consequences might have been fatal. The prisoner 
 was acquitted. 
 
 " Admitting evidence of loose conversations to revive an antiquated debt,
 
 OF WITNESSES — NUMBER — CONSISTENCY. 826 
 
 Such evidence is fabricated easily, contradicted with difficulty. 
 In cases of this kind, the conduct of the parties, and those facts and 
 circumstances of the case which are free from suspicion, are fre- 
 quently the safest and surest guides to truth. Evidence of this nature 
 is of the very ^weakest kind, where it is doubtful whether r*Q07i 
 the party making the admission knew his legal rights and 
 situation.^ 
 
 3d. Their number and cotmstenct/ : The testimony of a single wit- 
 ness, where thei'e is no ground for suspecting either his ability or his 
 integrity, is a sufficient legal ground for belief; that it is strong 
 enough to produce actual belief, every man's experience will vouch. 
 
 It has been alleged'^ that two witnesses are essential to convict a 
 man of crime ; for if there be but one, it is no more than the asser- 
 tion of one man against that of another. 
 
 It is not easy to comprehend ht.w the mere denial of guilt by an 
 accused person, whose life may depend upon the credit attached to 
 that denial, is to be placed in competition with the testimony of a wit- 
 ness examined upon oath. According to this species of logic, if six 
 men Avere to commit a crime, it would require the testimony of at 
 least seven witnesses to convict them upon their joint trial. ^ 
 
 which Avould otherwise have been barred by lapse of time; (see the observations 
 of the court, 4 B. & A. 571 :) or to render a party liable for a debt contracted 
 in infancy, was considered so objectionable that it led to the statute 9 Geo. IV. 
 c. 14, ss. 1, 5. 
 
 ** As where, in a settlement case, the declaration of an inhabitant is given in 
 evidence ; or a party makes admissions involving matter of law as well as mat- 
 ter of fact; as in reference to marriage: see tit. Marriage, Polygamy. Or a 
 discharge under an Insolvent Act: Sunimersett v. Adanisou, 1 Bing. (8 E. C 
 L R.) 73 ; but see JScott v. Clare, 3 Camp. 236 ; and Slatterie v. Poolei/, 6 M. & 
 W. 664. 
 
 ^ Montesquieu, Sp. of Laws, b. 12, c. 3. 
 
 ^ The civil law requires proof by two witnesses, according to its universal 
 maxim, " Dnius respoiisio testis ornnino non audiatur.''^ Sir W. Blackstone 
 observes, 3 Comm. 370, that to extricate itself out of one absurdity, the practice 
 of the civil law courts plunged itself into another. For as they do not allow a 
 less number than two witnesses to he plena probaiio, they call the testimony of 
 one semiplena probatio only, on which no sentence can be founded : to make 
 up, therefore, the necessary complement of witness, where they had one only 
 to a single fact, they permitted the party himself, plaintiff or defendant, to be 
 examined on his own behalf, and administered to him what is called the sup- 
 pletory oath ; and if his oath happened to be in his own favor, this immediately 
 converted the half proof into a whole one. Now, however, the party is a per- 
 fectly competent witness in all courts, though the weight which should attach 
 to his testimony must be for the court or jury to weigh. It might perhaps be
 
 828 PROOFS — DUTY OF THE JURY. 
 
 P^nQo-i *But although the testimony of a single witness, whose 
 credit is untainted, be sufficient to warrant a conviction, even 
 in a criminal case, yet undoubtedly any additional and concurrent 
 testimony adds greatly to the credibility of testimony, in all cases 
 where it labors under doubt or suspicion ; for then an opportunity is 
 afforded of comparing the testimony of the witnesses on minute and 
 collateral points, on which, if they were the witnesses of truth, their 
 testimony would agree, but if they were false witnesses, would be 
 likely to differ.° 
 
 Where direct testimony is opposed by conflicting evidence or by 
 ordinary experience, or by the probabilities supplied by the circum- 
 stances of the case, the consideration of the number of witnesses be- 
 comes most material. It is more improbable that a number of wit- 
 nesses should be mistaken, or that they should have conspired to 
 commit a fraud by direct perjury than that one or a few should be 
 mistaken, or wilfully perjured. In the next place, not only must the 
 difficulty of procuring a number of false witnesses be greatly increased 
 in proportion to the number, but the danger and risk of detection 
 must be increased in a far higher proportion ; for the points on which 
 their false statements may be compared with each other, and with 
 ascertained facts, must necessarily be greatly multiplied. 
 r*S9Qn *The consistency of testimony is also a strong and most 
 important test for judging of the credibility of witnesses. 
 Where several witnesses bear testimony to the same transaction, and 
 concur in their statement of a series of particular circumstances, and 
 the order in which they occurred, such coincidences exclude all ap- 
 prehension of mere chance and accident, and can be accounted for 
 only by one or other of two suppositions ; either the testimony is 
 true, or the coincidences are the result of concert and conspiracy. 
 If, therefore, the independency of the witnesses be proved, and the 
 supposition of previous conspiracy be disproved, or rendered highly 
 improbable, to the same extent will the truth of their testimony be 
 established.'' 
 
 well, if, as a general rule, where other evidence is procurable, the evidence of 
 tho party was merely regarded as suppletory. The instances of perjury and 
 treason arc exceptions to the rule of the common law requiring only one wit- 
 ness ; the former, upon grounds of strict principle, for there the oath of one 
 witness is opposed to the oath of another witness ; and, in the latter, as a mere 
 rule of policy devised for protecting the liberty of the subjei^t. 
 
 8 Quia a cordato judice mendacia testium deprehendi possunt, si diversi inter- 
 royantnr cum contra uniis facile sihi constare possit : Puifendorf 568. 
 
 " See Lord Mansfield's remarks in li. v. Gcnye, Cowp. 16. "It is objected
 
 CREDIT OF AVITNESSES — CONSISTENCY. 829 
 
 So far does tliis pi-inciple extend, that in many cases, except for 
 the purpose of repelling the suspicion of fraud and concert, the credit 
 of the witnesses themselves for honesty and veracity may become 
 wholly immaterial. Where it is once established that the witnesses 
 to a transaction are not acting in concert, then, although individually 
 they should be unworthy of credit, yet if the coincidences in their 
 testimony be too numerous to be attributed to mere accident, they 
 cannot possibly be explained on any other supposition than that of 
 the truth of their statement. 
 
 The considerations which tend to negative any suspicion of concert 
 and collusion between the witnesses, are either extrinsic of their tes- 
 timony; such, for instance, as relate to their character, situation, 
 their remoteness from each other, the absence of previous intercourse 
 with each other or with the parties, and of all interest in the subject- 
 matter of litigation ; or they arise internally, from a minute and 
 critical examination and comparison of the testimony itself. 
 
 *The natu7'e oi snch coincidences is most important: are ^ „^^ 
 
 r*8Son 
 
 they natural ones, which bear not the marks of artifice and '- -• 
 premeditation ? Do they occur in points obviously material, or in 
 minute and remote points which are not likely to be material, or in 
 matters the importance of which could not have been foreseen ? The 
 number of such coincidences is also worthy of the most attentive con- 
 sideration : human cunning, to a certain extent, may fabricate coin- 
 cidences, even with regard to minute points, the more effectually to 
 deceive ; but the coincidences of art and invention are necessarily 
 circumscribed and limited, Avhilst those of truth are indefinite and 
 unlimited: the witnesses of art will be copious in their detail of cir- 
 cumstances, as far as their provision extends ; beyond this they 
 Avill be sparing and reserved, for fear of detection, and thus their 
 testimony will not be even and consistent throughout : but the 
 witnesses of truth will be equally ready and equally copious upon 
 all points. 
 
 It is here to be observed, that partial variances in the testimony 
 of different witnesses, on minute and collateral points, although they 
 frequently afford the adverse advocate a topic for copious observation, 
 are of little importance, unless they be of too prominent and striking 
 a nature to be ascribed to mere inadvertence, inattention, or defect 
 of memory. 
 
 that these books are of no authority ; but if both the repoi'ters were the worst 
 that ever reported, if substantially they report a case in the same way, it is 
 demonstrative of the truth of what they report, or they could not agree." 
 48
 
 831 PROOFS — DUTY OF THE JURY. 
 
 It has been well remarked by a great observer,' that 
 '- J * " the usual character of human testimony is substantial 
 truth under circumstantial variety." It so rarely happens that wit- 
 nesses of the same transaction perfectly and entirely agree in all 
 points connected with it, that an entire and complete coincidence in 
 every particular, so far from strengthening their credit, not unfre- 
 quently engenders a suspicion of practice and concert. 
 
 The real question must always be whether the points of 
 ^ "^ variance and of discrepancy be of so strong and decisive *a 
 
 ^"I know not (says Dr. Paley) a more rash or unphilosopbical conduct of 
 the understanding than to reject the substance of a story by reason of some 
 diversity in the circumstances with which it is related. The usual character of 
 human testimony is substantial truth under circumstantial variety. This is 
 what the daily experience of courts of justice teaches. When accounts of a 
 transaction come from the mouths of different witnesses it is seldom that it is 
 not possible to pick out apparent or real inconsistencies between them. These 
 inconsistencies ai-e studiously displayed by an adverse pleader, but oftentimes 
 with little impression upon the minds of the judges. On the contrary, a close 
 and minute agreement induces the suspicion of confederacy and fraud. When 
 written histories touch upon the same scenes of action, the comparison almost 
 always aifords ground for a like reflection. Numerous and sometimes important 
 variations present themselves ; not seldom, also, absolute and final contradic- 
 tions ; yet neither the one nor the other are deemed sufficient to shake the 
 credibility of the main fact. The embassy of the Jews to deprecate the execu- 
 tion of Claudius's ord'er to place his statue in their temple, Pliilo places in har- 
 vest, Josephus in seed-time ; both contemporary writers. No reader is led by 
 their inconsistency to doubt whether such an embassy was sent, or whether 
 such an order was given. Our own history supplies examples of the same kind: 
 in the account of the Marquis of Argyle's death, in the reign of Charles the 
 Second, we have a very remarkable contradiction. Lord Clarendon relates that 
 he was condemned to be hanged, which was performed on the same day; on the 
 contrary, Burnet, Woodrow, Heath, and Echard concur in stating that he was 
 beheaded, and that he was condemned upon the Saturday and executed upon 
 the Monday. Was any reader of English history ever sceptic enough to raise 
 a doubt whether he was executed or not?" 
 
 It may not, perhaps, be deemed irrelevant to mention a circuit anecdote in 
 illustration of the foregoing observations. Not long before the death of Mr. 
 Justice Le Blanc, and whilst he was presiding as one of the judges of assize at 
 Lancaster, he had a fainting fit. Some time afterwards, the circumstance being 
 the topic of conversation amongst a considerable number of the members of 
 the bar who had been present, a doubt was started, whether the fact had taken 
 place in the ordinary Civil Court or in the Crown Court, in which civil causes 
 were usually tried after the termination of the business on the crown side; and 
 those wlio bad been actual spectators were divided as to their recollection in 
 which of the two courts the circumstance had occurred, many asserting that it 
 took place in the one court, and nearly as many that it occurred in the other 
 court.
 
 CREDIT OF WITNESSES — VARIANCE — FORCE. 832 
 
 nature as to render it impossible, or at least difficult, to attribute them 
 to the ordinary sources of such varieties, inattention or want of 
 memory. 
 
 It would, theoretically speaking, be improper to omit to observe 
 that the weight and force of the united testimony of numbers, upon 
 abstract mathematical principles, increases in a higher ratio than that 
 of the mere number of such witnesses. 
 
 Upon those principles, if definite degrees of probability could be 
 assigned to the testimony of each witness, the resulting probability 
 in favor of their united testimony would be obtained, not by the mere 
 addition of the numbers expressing the several probabilities, but by a 
 process of multiplication. 
 
 Such considerations, however, are of little practical importance. 
 The maxim of law is jjonderantur testes, non numerantur. No defi- 
 nite degrees of probability can in practice be assigned to the testi- 
 monies of witnesses ; their credibility usually depends upon the 
 special circumstances attending each particular case, upon their con- 
 nection with the parties and the subject-matter of litigation, their 
 previous characters, the manner of delivering their evidence, and 
 many other circumstances, by a careful consideration of which the 
 value of their testimony is usually so well ascertained as to leave no 
 room for mere numerical comparison. 
 
 In some instances, nevertheless, where from paucity of circum- 
 stances, the usual means of judging of the credit due to conflicting 
 witnesses fail, it is possible that the abstract principles adverted 
 to may operate by way of approximation, especially in those cases 
 where the decision is to depend upon the mere preponderance of 
 evidence. 
 
 4th. The conformity of their testimony with experience : As one 
 principal ground of faith in human testimony is experience, it neces- 
 sarily follows that such testimony is strengthened or weakened by 
 its conformity or inconsistency with our previous knowledge and ex- 
 perience. A *man easily credits a witness who states that 
 
 • • r*8331 
 
 to have happened which he himself has known to happen L J 
 
 under similar circumstances ; he may still believe, although he should 
 
 not have had actual experience of similar facts; but where, as in the 
 
 familiar instance stated by Mr. Locke,-" that is asserted which is not 
 
 J Vol. 11. , p. 276. " The Dutch ambassador told the king of Slam that in his 
 country the water was so hard in cold weather, that it would bear an elephant if 
 he were there. The king replied, Hitherto I have believed the strange things 
 you told me, because I looked upon you as a sober, fair man, but now I am sure 
 you lie."
 
 833 PROOFS — DUTY OF THE JURY. 
 
 only unsupported by common experience, but contrary to it, belief is 
 slow and difficult. 
 
 In ordinary cases, if a witness was to state that which was incon- 
 sistent with the known course of nature, or even with the operation 
 of the common principles by which the conduct of mankind is usually 
 governed, he would probably be disbelieved ; for it might be more 
 ^ probable in the particular instance that the witness was mistaken, or 
 meant to deceive, than that such an anomaly had really occurred. 
 But although the improbability of testimony, with reference to ex- 
 perience, affords a just and rational ground for doubt, the very illus- 
 tration cited by Locke shows that mere improbability is by no means 
 a certain test for trying the credibility of testimony, without regard 
 to the number, consistency, character, independence and situation 
 of the witnesses, and the collateral circumstances which tend to con- 
 firm their statement.'' In ordinary *cases where a witness 
 r*8341 ... 
 
 L -■ stands wholly unimpeached by any extrinsic circumstances, 
 
 ^ In ohserving upon the ,2;eneral principles on which the credibility of human 
 testimony rests, it may not be irrelevant to advert to the summary positions on 
 this subject advanced by Mr. Hume. He says, in his Essay, vol. 2, sec. lU, "A 
 miracle is a violation of the laws of nature ; and as a firm and unaltei-able expe- 
 rience has established these laws, the proof against a miracle, from the very na- 
 ture of the fact, is as entire as any argument from experience can possibly be 
 imagined." As a matter of abstract philosophical consideration (for in that 
 point of view only can the subject be adverted to in a work like this). Mr. 
 Hume's reasoning appears to be, altogether untenable. In the first place, the 
 very basis of his inference is that faith in human testimony is founded solely 
 upon experience: this is by no means the fact; the credibility of testimony 
 frequently depends upon the exercise of reason, on the effect of coincidences in 
 testimony, which, if collusion be excluded, cannot be accounted for but upon 
 the supposition that the testimony of concurring witnesses is true ; so much so, 
 that their individual character for veracity is frequently but of secondary im- 
 portance, supra, p. 829. Its credibility also greatly depends upon confirmation 
 by collateral circumstances, and on analogies supplied by the aid of reason as 
 well as of mere experience. But even admitting experience to be the basis, the 
 sole basis, of such belief, the position built upon it is unwarrantable, and it is 
 fallacious, for if adopted it would lead to error. The position is, that human 
 testimony, the force of w^iich rests upon experience, is inadequate to prove a 
 violation of the laws of nature, which are established by firm and unalterable ex- 
 perience. The very essence of the argument is, that the force of human testi- 
 mony (the efiicacy of which in the abstract is admitted) is destroyed by an oppo- 
 site, conflicting, and superior force, derived also from experience. If this were 
 so, the argument would be invincible; but the question is, whether mere previ- 
 ous inexperience of an event testified is directly opposed to human testimony, so 
 tliat mere experience as strongly proves that the thing za- not as previous experi- 
 ence of the credibility of human testimony proves that it is. Now a miracle, or
 
 FORCE or TESTIMONY. 835 
 
 credit ouglit to be given to his *testiniony, unless it be so r*oqr-i 
 grossly improbable as to satisfy the jury that he is not to be 
 
 violiition of the laws of nature, can mean nothinrr more than an event or effect 
 never observed before, and to the production of which the known laws of nature 
 are inadequate ; and on the other hand, an event or effect in nature never ob- 
 served before is a violation of the laws of nature-: Thus, to take Mr. Hume's own 
 example, " it is a miracle that a dead man should come to life, because that has 
 never been observed in any age or country;" probably in the same sense, the 
 production of a new metal from potash by means of a powerful and newly dis- 
 covered agent in nature, and the first observed descent of- meteoric stones were 
 violations of the law of nature ; they were events which had never before been 
 observed, and to the production of which the known laws of nature were inade- 
 quate. But none of these events can, with the least propriety, be said to be 
 against or contrary to the laws of nature, in any other sense than that they have 
 never before been observed, and that the laws of nature, as far as they were 
 previously known, were inadequate to their production. The proposition of Mr. 
 Hume ought then to be stated thus : human testimony is founded on experience, 
 and is therefore inadequate to prove that of which there has been no previous 
 experience. Now whether it be plain and self-evident that the mere negation of 
 experience of a particular fact necessarily destroys all faith in the testimony of 
 those who assert the fact to be true ; or whether, on the other hand, this be not 
 to confound the principle of belief with the subject-matter to which it is to be 
 applied, and whether it be not plainly contrary to reason to infer the destruction 
 of an active principle of belief from the mere negation of experience, which is 
 perfectly consistent with the just operation of that principle ; whether, in short, 
 this be not to assume broadly that mere inexperience on the one hand is necessa- 
 rily superior to positive experience on the other, must be left to every man's 
 understanding to decide. The inferiority of mere negative evidence to that 
 which is direct and positive, is, it will be seen, a consideration daily acted upon 
 in judicial investigations. Negative evidence is, in the abstract, inferior to posi- 
 tive, because the negative is not directly opposed to the positive testimony ; both 
 may be true. Must not this consideration also operate where there is mere in- 
 experience, on the one hand, of an event in nature, and positive testimony of the 
 fact on the other? Again, what are the laws of nature, established by firm and 
 unalterable experience? That there may be, and are, general and even unalter- 
 able laws of Providence and nature, may readily be admitted ; but that human 
 Jcnotvledge and experience of those laws is unalterable (which alone can be the 
 test of exclusion) is untrue, except in a very limited sense ; that is, it may fairly 
 be assumed that a law of nature once known to operate will always operate in a 
 similar manner, unless its operation be impeded or counteracted by a new and 
 contrary cause. In a larger sense, the laws of nature are continually alterable : 
 as experiments ai'e more frequent, more perfect, and as new phenomena are 
 observed, and new causes or agents are discovered, human experience of the laws 
 of nature becomes more general and more perfect. How much more extended 
 and perfect, for instance, are the laws which regulate chemical attractions and 
 affinities than they were two centuries ago ! And it is probable that in future 
 ages experience of the laws of nature will be more perfect than it is at present ; 
 it is, in short, impossible to define to what extent such knowledge may be car-
 
 836 PROOFS — DUTY OF THE JURY. 
 
 r*oop-| trusted. Thus, notwithstanding *the general presumption of 
 law in favor of innocence, a defendant may be convicted of a 
 
 tied, or whether, ultimately, the whole may not be resolvable into principles ad- 
 mittini;- of no other explanation than that they result immediately from the will 
 of a superior Being. This at all events is certain, that the laws of nature, as in- 
 ferred by the aid of experience, have from time to time, by the aid of experience, 
 been rendered more general and more perfect. Experience, then, so far from 
 pointing out any unalterable laws of nature, to the exclusion of events or phe- 
 nomena which have never before been experienced, and which cannot be ac- 
 counted for by the laws already observed, shows the very contrary, and proves 
 that such new events or phenomena may become the foundation of more enlarged, 
 more general, and thei-efore more perfect laws. But whose experience is to be 
 the test? That of the objector ; for the very nature of the objection excludes 
 all light from the experience of the rest of mankind. The credibility, then, of 
 human testimony is to depend not on any intrinsic or collateral considerations 
 which can give credit to testimony, but upon the casual and previous knowledge 
 of the person to whom the testimony is offered ; in other words, it is plain that 
 a man's scepticism must bear a direct proportion to his ignorance. Again, if 
 Mr. Hume's inference be just, the consequences to which it leads cannot be 
 erroneous : on the other hand, if it lead to error, the 'nference must be falla- 
 cious. The position is, that human testimony is inadequate to prove that which 
 has never been observed before : and this, by proving far too much for the au- 
 thor's purpose, is felo de se, and in effect proves nothing ; for if constant inex- 
 perience amount to stronger evidence on the one side than is supplied by posi- 
 tive testimony on the other, the argument applies necessarily to all cases where 
 mere constant inexperience on the one hand is opposed to positive testimony on 
 the other. According, then, to this argument, every philosopher was bound to 
 reject the testimony of witnesses that they had seen the descent of meteoric 
 stones, and even acted contrary to sound reason in attempting to account for a 
 fact disproved by constant inexperience, and would have been equally foolish 
 in giving credit to a chemist that he had produced a metal from potash by means 
 of a galvanic battery. It will not, I apprehend, be doubted, that in these and 
 similar instances the effect of Mr. Hume's argument would have been to exclude 
 testimony which was true, and to induce false conclusions ; the principle, there- 
 fore, on which it is founded, must of necessity be fallacious. Nay, further, if 
 the testimony of others is to be rejected, however unlikely they were either to 
 deceive or be deceived, on the mere ground of inexperience of the fact testified, 
 the same argument might be urged even to the extravagant length of excluding 
 the authority of man's own senses ; for it might be said, that it is more 
 probable that he should have labored under some mental delusion, than 
 that a fact should have happened contrary to constant experience of the course 
 of nature. 
 
 In stating that the inference attempted to be drawn from mere inexperience 
 is fallacious, I mean not to assert that the absence of previous experience of a 
 particular factor phenomenon is not of the highest importance to be weighed as 
 a circum.stance in all investigations, whether they be physical, judicial, or his- 
 torical : the niorc remote the subject of testimony is from our own knowledge 
 and experience, the stronger ought the evidence to be to warrant our assent^
 
 FORCE OF TESTIMONY. 83G 
 
 heinous and even improbable crime upon the testimony of a single 
 witness. 
 
 *As experience shows that events frequently occur which r^ooT-i 
 would antecedently have been considered most improbable, 
 from their inconsistency with ordinary experience, and as r^ooo-i 
 *their improbability usually arises from want of a more 
 intimate and correct knowledge of the causes which produced them, 
 mere improbability can rarely supj)ly a sufficient ground for disbe- 
 lieving direct and unexceptionable witnesses of the fact, where there 
 was no room for mistake. 
 
 5th. Conformity with collateral circumstances : Direct testimony 
 is not only capable of being strengthened or weakened to an indefinite 
 extent by its conformity on the one hand, or inconsistency on the 
 otber, with circumstances collateral to the disputed fact, but may be 
 totally rebutted by means of such evidence. A claimant, after his 
 case was referred to by the House of Lords and evidence taken on it, 
 presented an additional case, alleging an inscription on a tombstone 
 in a churchyard in Ireland, which if proved would sustain the claim. 
 
 Neither is it meant to deny that, in particular instances, and under particular 
 circumstances, the want or absence of previous experience may not be too 
 strong for positive testimony, especially where it otherwise labors under sus- 
 picion. What is meant is this, that mere inexperience, however constant, is not 
 in itself, and in the abstract, and without consideration of all the internal and 
 external probabilities in favor of human testimony, sufficient to defeat and 
 to destroy it, so as to supersede the necessity of investigation. Mr. Hume's 
 conclusion is highly objectionable in a philosophical point of view, inasmuch 
 as it would leave phenomena of the most remarkable nature wholly unexplained, 
 and would operate to the utter exclusion of all inquiry. Estoppels are odious, 
 even in judicial investigations, because they tend to exclude the truth ; in 
 metaphysics they are intolerable. So conscious was Mr. Hume himself of the 
 weakness of his general and sweeping position, that in the second part of his 
 10th section he limits his inference in these remarkable terms : "I beg the 
 limitations here made may be remarked, when I say that a miracle can never 
 be proved so as to be the foundation of a system of religion ; for I own that 
 otherwise there may possibly be miracles or violations of the usual course of 
 nature of such a kind as to admit of proof from human testimony.'''' 
 
 In what way the use to be made of a fact when proved can affect the validity 
 of the proof, or how it can be that a fact proved to be true is not true for all 
 purposes to which it is relevant. I pretend not to understand. Whether a 
 miracle, when proved, may be the foundation of a system of religion is foreign 
 to the present discussion ; but when it is once admitted that a miracle may he 
 proved by human testimony, it necessarily follows, from Mr. Hume's own con- 
 cession, that his general position is untenable ; for that, if true, goes to the 
 full extent of proving that human testimony is inadequate to the proof of a 
 miracle, or violation of the laws of nature.
 
 838 PROOFS — DUTY OF THE JURY. 
 
 It could not be produced. Several witnesses from the neighborhood 
 swore that they saw the tombstone and inscription about twenty years 
 ago. There was no discrepancy in their statements, and no witnesses 
 called to contradict them. The House held, that the evidence of the 
 existence of the tombstone and of the inscription was not sufficient ; 
 and that the neglect of the claimant to produce the evidence earlier 
 raised suspicions, Avhich would only be removed by producing the 
 stone, or calling witnesses of greater credit from the neighborhood.^ 
 These positions lead immediately to an inquiry into the nature and 
 force of indirect or circumstantial evidence. 
 
 Secondly. Indirect or circumstantial evidence, or, as it is fre- 
 quently termed, presumptive evidence. Any evidence which is not 
 direct and positive™ is of this class. ^ 
 
 r*8^Q1 "^-^^ inference or conclusion from circumstantial or pre- 
 sumptive evidence, may be either the pure result of pre- 
 vious experience of the ordinary or necessary connection between the 
 known or admitted facts and the fact inferred ; or of reason exer- 
 cised upon the facts; or of both reason and experience conjointly. 
 And hence such an inference or conclusion differs from a presump- 
 tion, althougli the latter term has sometimes, yet not with strict pro- 
 priety, been used in the same extended sense ; for a presumption in 
 strictness is an inference as to the existence of one fact, from a 
 knowledge of the existence of some other fact, made solely by virtue 
 of previous experience of the ordinary connection between the known 
 and inferred facts, and independently of any process of reason in 
 the particular instance." 
 
 The consideration of the nature of circumstantial evidence, and 
 of the principles on which it is founded, merits the most profound 
 attention. It is essential to the well-being at least, if not to the 
 
 1 Tracy Peerage case, 10 CI. & F. 154. 
 
 ™ For a more copious statement of the principles on which the force of cir- 
 cumstantial evidence depends, illustrated by numerous cases, the reader is 
 referred to a very interesting book, entitled "An Essay on the Rationale of 
 Circumstantial Evidence," by Mr. Wills, and to Mr. Best's able book on 
 " Presumptions." 
 
 ° See supra, Presumptions. 
 
 ^ As to circumstantial evidence in criminal cases, see State v. Coleman, 22 La. 
 Ann. 455 ; People v. Phipps, 39 Cal. 326 ; Pitts v. State, 43 Miss. 472 ; State v. 
 Van Winkle, 6 Nev. 340 ; U. S. v. Isla de Cuba, 2 Cliff. 295. Circumstantial 
 proof, which loses nothing by the lapse of time, may preponderate over the 
 recollection of one credible witness after the lapse of seventeen years: Ridlei/s 
 Adm'rs v. Ridley^ 1 Cald. 323.
 
 CIRCUMSTANTIAL EVIDENCE. 839 
 
 very existence of civil society, that it should be understood, that the 
 secrecy with which crimes are committed will not insure impunity to 
 the offender. At the same time it is to be emphatically remarked, 
 that in no case, and upon no principle, can the policy of preventing 
 crimes, and protecting society, warrant any inference which is not 
 founded on the most full and certain conviction of the truth of the fact, 
 independently of the nature of the offence, and of all extrinsic con- 
 siderations whatsoever. Circumstantial evidence is alloweti to pre- 
 vail to the conviction of an offender, not because it is necessary 
 
 and politic that it should be resorted to," but *because it is ^^^^^^ 
 
 . . r 8401 
 
 in its own nature capable of producing the highest degree of ^ -^ 
 
 moral certainty in its application. Fortunately for the interests of 
 
 society, crimes, especially those of great enormity and violence, can 
 
 rarely be committed without affording vestiges by which the offender 
 
 may be traced and ascertained. ^ The very measures which he adopts 
 
 for his security not unfrequently turn out to be the most cogent argu- 
 
 " It is almost supei'fluous to remark upon the absurd and mischievous doctrine, 
 that the nature of the crime ought at all to influence the measure of proof, and 
 that, out of policy, slighter proof is sufficient in proportion to the atrocity of 
 the offence, according to the pernicious maxim, in atrocissimis leviores conjec- 
 turoi svfficiunt et licet judici jura transgredi. Where any doubt exists as to the 
 corpus delicti, whether any crime has been committed, the very reverse of the 
 above position is true ; the more atrocious the nature of the crime is, the more 
 repugnant it is to the common feelings of human nature, the more improbable 
 it is that it has been perpetrated at all. "La credibilita di un testimonio diviene 
 tanto sensibilment minore quanto piil crescel'atrocita di un delitto e I'inverisi- 
 miglianza delle circonstanze ; tali sono per esempio la magia, fe la azioni gratu- 
 itamente crudeli :"' Beccaria, s. 13. But when it has once been clearly estab- 
 lished that a heinous crime has been perpetrated, and the only question is as to 
 the jjerpetrator, it is manifest that the atrocity of the crime mi the abstract raises 
 no probability either for or against the accused, although under particular cir- 
 cumstances it may be a matter of great importance. 
 
 Thus on a charge of infanticide, where there is a doubt whether the child 
 was destroyed by design, or by accident during a secret delivery, the very 
 atrocity of the offence raises a strong degree of probability in favor of the 
 latter conclusion. On the other hand, were it clear from the circumstances 
 under which a body was found, that the party had been murdered, then the 
 corpus delicti being established, the atrocity of the offence would in the abstract 
 raise no probability either in favor of or against any individual ; but if in the 
 particular instance the question were, whether the son of the deceased or a 
 stranger, was the guilty agent, then a probability from the particular circum- 
 stances would operate in favor of the son. It would, without reference to cir- 
 cumstances, be more probable that a stranger had committed the heinous crime 
 of murder, than that a son had committed that horrible offence upon the person 
 of his own father. 
 
 P See the observations of Beccaria, supra, p. 825.
 
 840 PROOFS — DUTY OF THE JURY. 
 
 ments of guilt. On the other hand, it is to be recollected that this 
 is a species of evidence which requires the utmost degree of caution 
 and vigilance in its application, and in acting upon it, the just and 
 humane rule impressed by Lord Hale'' cannot be too often repeated : 
 ^^tufius *se7nper est errare in acquietando, quam in 2Junie7ido, 
 L -I ex jjarte misericordice quam ezparte justiticef 
 
 By circumstantial or presumptive proof is meant that measure and 
 degree of circumstantial evidence which is sufficient to produce con- 
 viction in the minds of the jury of the truth of the fact in question. 
 
 To the validity of every such proof it is essential, first, that a 
 basis of facts be established by sufficient evidence; and in the next 
 place, that the proper conclusion should be deduced, by the aid of 
 reason and experience, from those facts and circumstances so estab- 
 lished. 
 
 The force and tendency of circumstantial evidence to produce 
 conviction and belief depend upon a consideration of the coincidence 
 of circumstances with the fact to be inferred; that is, with the hypo- 
 thesis, and the adequacy of such coincidences to exclude every other 
 hypothesis."^ 
 
 All human dealings and transactions are a vast context of circum- 
 stances, interwoven and connected with each other, and also with the 
 natural world, by innumerable mutual links and ties. No one fact or 
 circumstance ever happens which does not owe its birth to a multi- 
 tude of others, which is not connected on every side by kindred facts, 
 and which does not tend to the generation of a host of dependent 
 ones, which necessarily coincide and agree in their minutest bearings 
 and relations, in perfect harmony *and concord, without the 
 •- "'-' slightest discrepancy or disorder. 
 
 It is obvious that all facts and circumstances which have really 
 happened were perfectly consistent with each other, for they did 
 actually so consist. It is therefore a necessary consequence, that if 
 
 1 Hale 290. 
 
 "■ In one respect, proof by circumstantial evidence is analogous to the indirect 
 proof, or rcductio ad ahsurdum, in geometry : in each case the truth of the 
 proposition is attained to by negativing and excluding the truth of any other 
 hypothesis ; in the one case to a metapliysical and absolute, in the other 
 to a moral certainty. In another and essential point they usually differ : in the 
 geometrical proof the exclusion of one other hypothesis frequently excludes all 
 others, and thus at once establishes the truth of the proposition; in the case 
 of moral, circumstantial proofs it may not only be necessary to exclude several 
 different liypothcsos by as many different j)rocesscs of reasoning, but a doubt 
 may still exist whether some other hypothesis may not remain unanswered.
 
 CIRCUMSTANTIAL EVIDENCE. 842 
 
 a number of the circumstances which attended a disputed fact be 
 known and ascertained, and those so coincide and agree with the hy- 
 pothesis that the disputed fact is true, that no other hypothesis can 
 consist with those circumstances, the truth of that hypothesis is 
 necessarily established. 
 
 And again, where the known and ascertained facts so coincide and 
 agree with the hypothesis that the disputed fact is true, as to render 
 the truth of any other hypothesis, on the principles of reason and 
 experience, exceedingly remote and improbable, and morally, though 
 not absolutely and metaphysically, impossible, the hypothesis is 
 established as morally true. It also folloAVS, that if any of the estab- 
 lished circumstances be absolutely inconsistent with the existence of 
 the supposed fact, the hypothesis cannot be true, notwithstanding 
 the degree and extent of coincidence in other respects ; for if that 
 fact really existed, it was necessarily consistent with all the circum- 
 stances. 
 
 Thus, in the first place, it sometimes happens that the coincidence 
 between the known facts and the hypothesis is such as absolutely and 
 demonstratively to exclude any other. If, for instance, it were to be 
 proved, that A. B. entered a room containing a watch, and that the 
 watch was gone upon his departure, and it were also proved that no 
 agent but A. B. in the interval had had access to the room, the proof 
 that A. B. took the watch would be conclusive and complete: for the 
 supposition that it had been removed by any other agent would be 
 entirely excluded. 
 
 In the next place, the nature and degree of coincidence between 
 the circumstances and the hypothesis may oftentimes *be 
 sufficient to exclude all reasonable doubt, and thus generate ^ -■ 
 full moral conviction and belief, although it be not, as in the former 
 case, of an absolute and demonstrative nature. The probability of 
 an hypothesis must always be proportioned to the nature^ extent 
 and number of its coincidences with the circumstances proved.^ 
 
 ° All theories which explain the connection between natural phenomena and 
 their causes are of this description. They consist in showing the existence and 
 operation of a cause, and its adequacy to explain the phenomena ; in other 
 words, their coincidence with the hypothesis. Evidence, therefore, of the truth 
 of any such theory is in no case demonstrative, although it reach to the highest 
 degree of moral certainty. The most splendid, important, and beautiful of all 
 philosophical theories, that of Sir Isaac Newton, for explaining the solar 
 system, as exhibited by that great philosopher, amounts simply to this: a cause 
 — viz., gravitation — exists. It is matter of demonstrative proof, that if such a 
 cause did really operate upon the system, it would produce all the effects or
 
 844 PROOFS — DUTY OF THE JURY. 
 
 *Connectlons and coincidences between circumstances and 
 *- -^ the hypothesis which they tend to prove, are either those of 
 a natural or mechanical nature, which are the objects of sense, or 
 they are of a moral nature. Those of the first class may consist 
 generally in proximity in point of time and space, and all other cir- 
 cumstances which show that the supposed agent had the means and 
 opportunity of doing the particular act, and connect him witli it. 
 As common instances, the possession of stolen goods, in case of rob- 
 bery, and stains of blood upon the person, the possession of deadly 
 weapons recently used, marks of conflict and violence, in case of 
 homicide, may be cited. Happy it is for the interests of society that 
 forcible injuries can seldom be perpetrated without leaving many and 
 plain vestiges by which the guilty agent may be traced and detected. 
 Instances of this nature, where apparently slight and unexpected 
 circumstances have led to the detection of oifenders, are familiar to 
 
 phenomena which are actually observed ; that is, the supposed cause is sufficient 
 to explain all the phenomena. Hence it is inferred to be true, and the force of 
 this inference is in proportion to the improbability that all the minute coinci- 
 dences between the phenomena and the hypothesis should be merely fortuitous, 
 and that they should have resulted, not from a cause known to exist, and which 
 is adequate to produce them, but fi-om some other cause unobserved and 
 unknown. To a certain extent, philosophical proofs, as to the relations of 
 cause and effect in the natural woi'ld, are similar to circumstantial judicial 
 proofs ; in each case the basis of proof consists in the coincidences proved to 
 exist between the phenomena or circumstances and the hypothesis. Bayond 
 this point, and with respect to the effect of such coincidences, they frequently 
 differ essentially. The philosophical proof rests on mere coincidences, indefinite 
 in point of number, and the absence of any other cause adequate to account 
 for the phenomena; but the agency of some other, but unknown, cause can 
 never be absolutely excluded. On the other hand, although circumstantial 
 proof must rest on a limited number of coincidences, yet their nature and force 
 are frequently such as to wholly to exclude the truth of any other hypothesis. 
 Lord Coke, as an instance of presumptive judicial belief, supposes the case 
 where a man is found dead in a house, having been stabbed with a sword, and 
 another is seen coming out of the house with a bloody sword in his hand, no 
 other person having been in the house. Here the circumstances, and 
 consequently the coincidences, are few, but they are of such a nature as wholly 
 and necessarily to exclude any but one hypothesis. So, in the ordinary case of 
 larceny, Avhere stolen goods, recently after the commission of the felony, are 
 found in the possession of the prisoner, who gives no account for the purpose 
 of explaining that possession; although the coincidences between the hypothesis 
 that he was the thief, and the circumstances, be but two in number, viz. : his 
 possession of the property, and his omission to account for that possession, yet 
 the latter is of an exclusive nature and tendency ; it forcibly tends to exclude 
 any supposition of an honest possession.
 
 CIRCUMSTANTIAL EVIDENCE. 844 
 
 all who are concerned in tlie practical administratian of justice. In 
 a case of burglary the thief had gained admittance to the liouse by 
 opening a window by means of a penknife, which was broken in the 
 attempt, and part Avas left in the wooden frame : the broken knife 
 was found in the pocket of the prisoner, and perfectly corresponded 
 with the fragment left. A murder had been committed by shooting 
 the deceased with a pistol, and the prisoner was connected with the 
 transaction by proof that the wadding of the pistol was part of a 
 *letter belonging to the prisoner, the remainder of which r*o4c-| 
 was found upon his person.' In another case of murder, 
 one of the circumstances to prove the prisoner to have been the 
 criminal agent, was the correspondence of a patch on one knee of his 
 breeches with impressions made upon the soil close to the place where 
 the murdered body lay. In a case of robbery, it appeared that the 
 prosecutor, when attacked, had, in his own defence, struck the rob- 
 ber, with a key, upon the face, and the prisoner bore an impression 
 upon his face which corresponded with the wards of the key. All 
 circumstances of this nature are, as it were, mechanical links or ties 
 which connect the supposed agent with the act which is the subject 
 of inquiry. Further observations on this branch of the subject would 
 be superfluous, and inconsistent with the object of the present Avork. 
 There are, in fact, no existing relations, natural or artificial, no oc- 
 currences or incidents in the course of nature, or dealings of society, 
 which may not constitute the materials of proof, and become impor- 
 tant links in the chain of evidence. 
 
 Circumstances of the above description, although they may be in 
 themselves of an imperfect and inconclusive nature, frequently derive 
 a conclusive tendency from those which are of a moral kind, and 
 which depend upon a knowledge and experience of a man as a rational 
 and moral agent. Experience points out some laws of human con- 
 duct almost as general and constant in their operation as the me- 
 chanical laws of the material world themselves are. That a man will 
 consult his own preservation, and serve his own interests ; that he 
 will prefer pleasure to pain, and gain to loss ; that he will not com- 
 mit a crime or any other act manifestly tending to endanger his per- 
 son or property, without a motive; and conversely, that if he has 
 done such an act he had a motive for doing it; are principles of 
 *action and of conduct so clear that they may be properly r^oj/^-i 
 regarded as axioms in the theory of evidence. 
 
 The presumption that a man will do that which tends to his obvious 
 
 * This case was cited by the Lord Chancellor, in the course of a debate in the 
 House of Lords, 1820.
 
 846 PROOFS^ — DUTY OF THE JURY. 
 
 advantage, if he possesses tlie means, supplies a most important test 
 for judging of the comparative weight of evidence. It is to be 
 weighed according to the proof which it was in the power of one 
 party to have produced, and in the power of the other to have con- 
 tradicted." 
 
 If, on the supposition that a charge or claim is unfounded, the 
 party against whom it is made has evidence within his reach by 
 which he may repel that which is offered to his prejudice, his omis- 
 sion to do so supplies a strong presumption that the charge or claim 
 is well founded ; it would be contrary to every principle of reason, 
 and to all experience of human conduct, to form any other conclu- 
 sion. This consideration in criminal cases frequently gives a con- 
 clusive character to circumstances Avhich would otherwise be of an 
 imperfect and inconclusive nature.^ Thus, where the evidence against 
 a prisoner on a charge of larceny consists in his recent possession of 
 stolen property, his very silence as to the fact of possession raises a 
 strong presumption against him ; for if his possession was an inno- 
 cent one, as the fact must necessarily be within his knoAvledge, he 
 might show by statement at all events, if not by proof, that such 
 possession was consistent with his innocence. The same observations 
 apply in general where appearances are proved against an accused 
 person, which he refuses to account for or explain ; such as marks of 
 blood and violence on his dress and person, the possession of con- 
 cealed weapons, and the like. 
 
 The same principle applies where a party, having more certain 
 r*84.71 ^'^^ satisfactory evidence in his power, relies upon *that which 
 is of a weaker and inferior nature. So pregnant with suspi- 
 cion is conduct of this nature, that the law, as has been seen, has 
 laid down an express and peremptory rule upon the subject, which 
 in cases within the scope of its operation actually excludes the infe- 
 rior evidence. It is for the jury, in their discretion, to apply the 
 principle, in cases which do not fall within the defined limits of the 
 rule. Although a party may not be ahvays compellable to produce 
 evidence against himself, yet if it be proved that he is in possession 
 of a deed or other evidence, which, if produced, would decide a 
 disputed point, his omission to produce it would warrant a strong 
 presumption to his disadvantage.'^ 
 
 " See Lord Mansfield's observations in TilatcJi v. Archer^ Cowp. 65. 
 
 ^ Notisi chc Ic prove iinpcrfettc delle quale puo il reo giustificarsi e non lo 
 faccia dovere divcngono perfettc : Beccaria, s. 14, 
 
 "" Sec Lord Mansfield's observations in Roc dem. Ilaldane v. Ilarcei/, Burr. 
 2484.
 
 CIRCUMSTANTIAL EVIDENCE. 847 
 
 Again, the maxim of law is, omnia prcesumuntur contra spoUato- 
 rem.'^ In tlie case of Uarivood v. Goodriglit/ it was found by a spe- 
 cial verdict that the testator made his will, and gave the premises in 
 question to the plaintiff in error, but afterwards made another will 
 different from the former, but in what particulars did not appear; 
 the court decided that the devisee under the first will was entitled 
 against the heir at law. But Lord Mansfield said, that in case the 
 defendant had been proved to have destroyed the last will, it would 
 have been good ground for the jury to find a revocation. And as 
 the destruction or withholding of evidence creates a presumption 
 against the party who has had recourse to such a practice, so a for- 
 tiori does the actual fabrication or corruption of evidence.'' 
 
 ^ Ibid. y Cowp. 87. 
 
 ^ See ttie judicious remarks of Mr. Evans (2 Potliier, by Evans 337). He 
 justly observes, that one of tlie most difficult points in the Douglas cause arose 
 from Sir John Stewart's having fabricated several letters as received from La 
 Marre, the suri^oon ; and cites the following passage from Mr. Stuart's observa- 
 tions on the subject : — 
 
 " I have been accustomed to think, that in judging upon evidence, a matter 
 of such infinite importance in the constitution and jurisprudence of every well- 
 regulated state, there were certain rules established, which in every court, and 
 in every country, were received as most invaluable guides for the discovery of 
 truth. For instance, when it appeared that on the one side there was forgery 
 and fraud in some material parts of the evidence, and especially when that 
 forgery could be traced up to its source, and discovered to be the contrivance of 
 the very person whose guilt or innocence was the object of inquiry ; in such a 
 case I have always understood it to be an established rule, that the whole of 
 the evidence on that side of the question must be deeply affected by a deliberate 
 falsehood of this nature. 
 
 " The natural and necessary effect of such a practice upon the minds of 
 judges possessed of discernment and candor, is to make them extremely sus- 
 picious of all the evidence tending to the same conclusion with the forged evi- 
 dence. Parol testimony in support of it will be little regarded : the forgery of 
 the written evidence contaminates the testimony of the witnesses in favor of 
 the party who has made use of that forgery ; and nothing will gain credit on 
 that side, but either clear and conclusive written evidence, free from suspicion, 
 or the testimony of such a number of respectable, disinterested, and consistent 
 witnesses, speaking to decisive and circumstantial facts as leaves no room to 
 doubt of the certainty of their knowledge, and the truth of their assertions. 
 
 "On the other hand, the proof of a forgery, such as has been described, must 
 also have the effect to gain a more ready admission to the evidence of the other 
 party. If that evidence be consistent, if it be established by the concurring 
 testimony of a crowd of witnesses, and supported by various articles of written 
 and unsuspected evidence, the bias of a fair mind will be totally in favor of the 
 party producing such authorities, and against that which had been obliged to 
 have recourse to the forjj;cd evidence."
 
 848 PROOFS — DUTY OF TUE JURY. 
 
 r*84.81 *The discovery of sucli practices must naturally and un- 
 avoidably excite a considerable degree of jealousy and sus- 
 picion, and ought undoubtedly to be most seriously -weighed in esti- 
 mating the degree of credit to be attached to other evidence adduced 
 by the same party, where it is in its own nature doubtful and suspi- 
 cious, or is rendered so by conflicting evidence. A considerable 
 degree of caution is nevertheless to be applied in cases of this descrip- 
 tion, more especially in criminal proceedings ; for experience shows 
 that a weak but innocent man will sometimes, when appearances are 
 r*SJ.Q'l ^g^'^st him, have recourse to falsehood *and deception, for 
 the purpose of manifesting his innocence^ and insuring his 
 safety. 
 
 The connection between a man's conduct and his motives is also 
 one of a moral nature, pointed out by experience. It is from their 
 experience of such connections that juries are enabled to infer a 
 man's motives from his acts, and also to infer what his conduct was, 
 from the motives by which he was known to be influenced. In crimi- 
 nal cases, proof that the party accused was influenced by a strong 
 motive of interest to commit the ofi"ence proved to have been com- 
 mitted, although exceedingly weak and inconclusive in itself, and 
 although it be a circumstance which ought never to operate in proof 
 of the corpus delicti, yet when that has once been established aliunde, 
 it is a circumstance to be considered in conjunction with others which 
 plainly tend to implicate the accused.*' 
 
 Again, presumptions of great importance, especially in criminal 
 proceedings, arise frequently out of the connection between the acts 
 of a party, and his intentions, consciousness and knowledge. That 
 a rational agent must be taken to contemplate and intend the natural 
 and immediate consequences of his own act, is a presumption so 
 cojrent as to constitute rather a rule of law than of mere evidence." 
 Again, the usual connection between the conduct of a criminal agent 
 and the supposition of his guilt, are of too obvious a nature to be 
 
 ^ Supra, p. 59. 
 
 •^ On the other hand, the total absence of any apparent motive must always 
 operate strongly as a circumstance in favor of the accused, especially where 
 there is no reason to apprehend any unsoundness of intellect. AJor'tiori, does 
 the principle operate where the supposed aj^ent was actuated by contrary mo- 
 tives. And even in cases which involve a conflict of motives, such as infanti- 
 cide, where natural feelinj^s on the one hand are opposed to a desire of avoiding 
 shame and detection on tiie other, the former are necessarily entitled to the 
 highest consideration. 
 
 ' See tit. Intention, Malice.
 
 CIRCUMSTANTIAL EVIDENCE. 850 
 
 dwelt upon. The seeking for opportunities fit for the occa- p^Q^^-, 
 sion ; the providing *of poison, or instruments of violence, *- -^ 
 in a secret and clandestine manner ; the subsequent concealment of 
 them ; attempts to divert the course of inquiry,'' or prevent investi- 
 gation as to the cause of death, not unfrequently excite just cause of 
 suspicion : above all, the restless anxiety of a mind conscious of 
 guilt very frequently prompts the party to take measures for his 
 security which eventually supply the strongest evidence of his crimi- 
 nality. 
 
 In judicial investigations, as well as in the ordinary course of life, 
 that is more or less probable and likely, and is therefore, in a greater 
 or less degree, an inducement to belief, which more or less agrees 
 with former observation. This is a ground of assent, warranted as 
 well by philosophy as by ordinary experience. It is probable that 
 whatever has happened will again happen under similar circum- 
 stances, however ignorant we may be of the nature or necessity of 
 the connection ; the very frequency of the association is evidence of 
 the connection ; there is no association whatsoever, whether it be moral, 
 natural or artificial, Avhether it depend on the nature and constitution 
 of the human mind, the laws of nature, or the artificial manners and 
 habits of society, which is not rendered probable in proportion to the 
 frequency and constancy of the connection. Hence it is, that where 
 circumstances found to be usually associated with the fact in question 
 are known to exist, such associations are connecting links between 
 the known circumstances and the fact, and render its existence more 
 or less probable.® On the other hand, *it is scarcely neces- |-^gr-,-, 
 sary to remark, that experience of usual or constant dis- L J 
 union of particular facts and circumstances, necessarily renders their 
 future association unlikely and improbable, and is a proper induce- 
 ment to disbelief more or less strong according to circumstances. 
 
 * I have remarked that persons of the lowest classes of society, before the com- 
 mission of premeditated murder, not unfrequently throw out some dark and 
 mysterious hints as to the death of the intended victim. This is a circumstance 
 which I apprehend is to be attributed principally to an expectation that by this 
 means less of surprise and of inquiry will take place when the crime has been 
 accomplished. 
 
 * A striking instance, to show the extent to which philosophical inferences 
 may be carried by means of careful observation and analogical reasoning, may 
 be derived from the science of comparative anatomy. From a single fossil 
 bone of an animal, whose very species is extinct, a skilful anatomist is able 
 to represent the original animal perfect in all its parts; see Cuvier's Fossil Re- 
 mains. 
 
 49
 
 OOl PROOFS — DUTY OF THE JURY. 
 
 It is further to be remarked, that the force of evidence resulting 
 from the concurrence of circumstances depends not merely upon the 
 degree of probability that tliose coincidences were merely casual and 
 fortuitous, but frequently also upon that improbability, compounded 
 with the further improbability that another hypothesis is true which 
 is not supported by any circumstances. Thus, in a criminal case, 
 where all the circumstances of time, place, motive, means, oppor- 
 tunity and conduct, concur in pointing out the accused as the per- 
 petrator of an act of violence, the force of such circumstantial evi- 
 dence is materially strengthened by the total absence of any trace 
 or vestige of any other agent, although had any other existed, he 
 must have been connected with the perpetration of the crime by 
 motive, means and opportunity, and by circumstances necessarily 
 accompanying such acts, which usually leave manifest traces behind 
 them. 
 
 In estimating the force of a number of circumstances tending to 
 the proof of the disputed fact, it is of essential importance to con- 
 sider whether they be dependent or independent. If the facts A, B, 
 C, D, be so essential to the particular inferences to be derived from 
 them, when established, that the failure in the proof of any one would 
 destroy the inference altogether, they are dependent facts; if, on the 
 other hand, notwithstanding the failure in proof of one or more of 
 those facts, the rest would still afford the same inference or probability 
 as to the contested fact which they did before, they *would 
 L '^■^ be properly termed independent facts. ^ The force of a parti- 
 cular inference drawn from a number of dependent facts is not aug- 
 mented, neither is it diminished, in respect of the number of such 
 independent facts, provided they be established ; but the probability 
 that the inference itself rests upon sure grounds, is, in general, 
 weakened by the multiplication of the number of circumstances 
 essential to the proof; for the greater the number of circumstances 
 essential to the proof is, the greater latitude is there for mistake or 
 deception. On the other hand, where each of a number of independ- 
 ent circumstances, or combinations of circumstances, tends to the 
 same conclusion, the probability of the truth of the fact is necessarily 
 
 '' Quando le prove di un fatto tuttc dipendono egaaliuente da una sola, il nu- 
 mero dellcprove non auinentc ne sininuisco la probabilitil del fatto, perche tutto 
 il loro valore si resolve nel valorc di quclla sola da ciii dipendono. Quando le 
 prove sono indipendenti, I'una dall' altra, cioe quando gli indixi si provana al- 
 trondc clie da so stessi, quanto maggiori prove si adducono tanto piCi cresce la 
 probabilita del fatto, perche la fallacia di una prova non influisce suU' altra: 
 Beocaria, s. 14.
 
 CIRCUMSTANTIAL EVIDENCE. 852 
 
 greatly increased in proportion to the number of tliose independent 
 circumstances.^ 
 
 It seems to have been considered, that even mere coincidences, 
 although not of an exclusive nature, may by their number and joint 
 operation be sufficient to constitute a conclusive proof.'' It rarely 
 however happens *in practice, tiiat circumstantial proofs con- r:«or --i 
 sist purely in mere natural and mechanical coincidences, 
 unconnected with any of a moral nature and conclusive tendency. 
 
 The probability derived from the concurrence of a number of 
 independent probabilities increases not in a merely cumulative, but 
 in a compound and multiplied proportion.' This is a consequence 
 
 ^ Infra, note [i). 
 
 ^ Matthaeus de Grim. : Possuni diversa genera ita covjungi ut quce singula non 
 nocerent ea universa tanquam grando reum opprimunt. — According to Beccaria, 
 chap. 14 : Possono distinguersi le prove di un reato in perfette ed in imperfette. 
 Chiamo perfette quelle che escludono la possibilit{\ che un tale non sia reo ; chiamo 
 imperfette quelle che non la escludono. Delia prima anche una sola e sufficiente 
 per la condanna, delle seconde tante son necessarie quante bastino a formarne 
 una perfetta, vale a dire que se per ciascuna di queste in particolare h possibile 
 che uno non sia reo, per I'unione loro nel medesimo soggetto e impossibile che 
 non lo sia: Beccaria, s. 14. — Singula levia sunt ct communia, universa vero no- 
 cent etiam si non ut fulmine, tamen ut grandine : Quinctil. 
 
 ' According to the principles of pure abstract mathematical reasoning, the pro- 
 bability arising from the concurrence of a number of independent circumstances, 
 each of which induces a pi'obability in favor of a particular event, is compounded 
 of all the probabilities incident to the individual circumstances. When, therefore 
 the circumstantial probabilities are each considerable, the compound probability 
 in favor of the event increases by a rapid progression. If the circumstances, J 
 
 a b c 
 B, C, severally induce probabilities in favor of an event represented by 
 
 m m in, 
 that is, if in every m cases the circumstance A necessarily involved the event in 
 
 question a times, and excluded it m — a times, and so on, and the circumstances 
 A, B, C, were wholly independent of each other, then the probability of the 
 event, arising from the happening of all these circumstances, would be to the 
 probability against it as m^—m — a . m — h . m — c to m — a . m — h . m — c. * 
 
 If the witnesses. A, B, C, bore testimony to independent facts, each of which 
 if true, involved the truth of a particular event, and A were the witness of truth 
 in a cases, and his testimony were false in m — a cases, and so of the testimony 
 of 5, and of C, then the probability of the event, arising from their joint testi- 
 mony, would be to the probability against it in the ratio above expressed. 
 
 And if m=2 and a^b=c='[, the probability in favor of the event would be to 
 the probability against it as 7 : 1. 
 
 Again, if the probability in favor of a particular fact, arising from the testi- 
 mony of A, were to the probability against it as a : m — a, and so on, as to the 
 testimony of B and C, the probability of the fact from their united testimony
 
 854 PROOFS — DUTY OF THE JURY. 
 
 r*f<''4.1 *^6rived from pure abstract *aritlimetical principles. For 
 altboufrh no definite arithmetical ratio can be assigned to 
 
 would he to the prohahility against it as a 6 c to m — a. m — h. m — c. And if 
 m=^2 and a=6=c=l, the ratio would he that of 1 : 1 ; that is their united testi- 
 mony would produce no increase of probability in favor of the fact. 
 
 Such considerations admit but of a very partial and limited application in the 
 investigation of questions arising out of the common concerns of life. The basis 
 of all such calculations is a comparison of all the diiferent cases which involve 
 the particular event with those which exclude it, which assumes the possibility 
 of resolving all possible cases, which either involve or exclude the event, into a 
 definite number of the one class and of the other, each of which is equally likely 
 to happen. (Wood's Algebra. Laplace, Theorie Analitique des Probabilit^s.) 
 The most complicated and labored analytical results on the subject of probabili- 
 ties, are little more than modifications of this comparison. It is obvious, upon 
 the slightest consideration, that the probability of error or mistake on the part 
 of a witness, or of his honesty and sincerity, usually admits of no such com- 
 parison ; still less can the complicated transactions of life, dependent as they are 
 upon an almost infinite variety of circumstances and motives, be subjected to 
 such an analysis. But the principle may no doubt operate by way of approxi- 
 mation, although the concurrent probabilities may admit of no numerical mea- 
 sure ; and whenever probabilities are deducible from independent circumstan- 
 ces, the degree of probability must necessarily be multiplied by their concur- 
 rence. In criminal cases, however, it seems to be perfectly clear in principle 
 that the conjoint effect of circumstances, which individually are inconclusive in 
 their nature, cannot in its nature be conclusive, unless the resulting probability 
 be indefinite, and exceed the powers of calculation. Where mere independent 
 and unconnected circumstances are in their nature imperfect and inconclusive, 
 the degree of probability which results from their united operation, although 
 greatly increased in degree, must still in its nature be definite and inconclusive, 
 and therefore inadequate to the pui-poses of conviction. Let it, for instance, be 
 supposed that A is robbed, and that the contents of his purse were one penny, 
 two sixpences, three shillings, four half-crowns, five crowns, six half-sovereigns, 
 and seven sovereigns, and that a person, apprehended in the same fair or market 
 where the robbery takes place, is found in possession of the same remarkable 
 combination of coin, and of no other, but that no part of the coin can be identi- 
 fied, and that no circumstances operate against the prisoner except his possession 
 of the same combination of coin : here notwithstanding the very extraordinary 
 coincidences as to the number of each individual kind of coin, although the cir- 
 cumstances raise a high probability of identity, yet it still is one of an indefinite 
 and inconclusive nature. 
 
 On the other hand, evidence of a conclusive nature and tendency is restricted 
 by DO limits of mere probability. In the case of the ordinary presumption that 
 an admission of a fact made hy a party contrary to his obvious interest is truly 
 made, the prolnibility that the admission is true far exceeds the limits of mere 
 numerical comi)arison. In some instances mere mechanical coincidences are of 
 this description. Thus, in the ordinary case, where cloth is cut and stolen from 
 a loom, the perfect coincidence between cloth found in the possession of the pri- 
 soner and the remnant left behind, is of this description ; the probability of iden-
 
 CIRCUMSTANTIAL EVIDENCE. 855 
 
 each independent probability, *jet the principle of increase r*orr-] 
 must obtain wherever independent probabilities in favor of 
 an event concur, although they cannot be precisely measured by 
 space or numbers ; and even although every distinct probability 
 which is of a conclusive tendency exceeds every merely definite 
 numerical ratio. 
 
 It is nevertheless to be remarked, that wherever mere inconclusive 
 probabilities concur, the result, however the degree of probability 
 may be increased by the union, will still be of an indefinite and in- 
 conclusive nature. And hence it seems, that in criminal cases the 
 mere union of a limited number of independent circumstances, each 
 of which is of an imperfect and inconclusive nature, cannot afford a 
 just ground for conviction. 
 
 On the other hand, the force of circumstances of a conclusive 
 nature may be greatly confirmed and strengthened by their combi- 
 nation with other and independent circumstances, which render the 
 fact probable, although the ^latter be in themselves of an r*QC£'-| 
 imperfect and inconclusive nature. Again, it is to be observed, 
 that although in the course of judicial proofs the number of concur- 
 ring probabilities is usually limited, yet that cases may be put where 
 the number and extent of the coincidences are so great as to exceed 
 all definite limits, and where, consequently, the resulting probability 
 is of a conclusive nature.-* 
 
 It is to be remarked, that in thus referring to the doctrine of 
 numerical probabilities, it is the principle alone which is intended 
 to be applied, in order that some estimate may be formed of the 
 force of independent and concurring probabilities. The notions of 
 those who have supposed that mere moral probabilities or relations 
 
 tity ai'ising from the perfect coincidence of the severed threads exceeds the bounds 
 of arithmetical calculation, and deprives the mind of all power of attributing 
 such a series of coincidences to mere accident. 
 
 But even in criminal cases, where a high degree of probability results from 
 repeated coincidences, although that probability be of a definite and numerical 
 nature, such coincidences may, in conjunction with others, constitute a com- 
 plete and satisfactory proof. Thus, in the case already supposed, of a singular 
 coincidence between the quantity and description of coin stolen with that found 
 in the possession of the prisoner, although the fact, taken nakedly and alone, 
 without any collateral evidence, would in principle be inconclusive, yet, if 
 coupled with circumstances of a conclusive tendency, such as flight, conceal- 
 ment of the money, false and fabricated statements as to the possession, it 
 might afford strong and pregnant evidence of guilt for the consideration of the 
 
 J See the preceding note.
 
 856 PROOFS — DUTY OF THE JURY. 
 
 could ever be represented by numbers or space, and thus be sub- 
 jected to arithmetical analysis, cannot but be regarded as visionary 
 and chimerical. 
 
 From this short view of the subject, it appears to be essential to 
 circumstantial proof. First, that the circumstances from which the 
 conclusion is drawyi he fully established. If the basis be unsound, 
 the superstructure cannot be secure. The party upon whom the 
 burthen of proof rests is bound to prove every single circumstance 
 which is essential to the conclusion, in the same manner and to the 
 same extent as if the whole issue had rested upon the proof of each 
 individual and essential circumstance. It is obvious that proof of 
 this nature is more strono; and cogent where the circumstances are 
 numerous, and derived from many different and independent sources, 
 than where they are but few, and depend on the credit and testimony 
 of one or two Avitnesses. Where all the circumstances rest on the 
 testimony of a single witness, the evidence can never be superior to 
 the lowest degree of direct evidence, and must frequently fall below 
 it : for in addition to the question, whether the witness was trust- 
 p:j;orrT-| worthy, *another question would arise; that is, whether the 
 inference was correctly draAvn from the facts which he was 
 supposed to prove. 
 
 It is obvious that the number of circumstances stated by a witness 
 does not add to the force of his direct testimony, unless they be such 
 as admit of contradiction if his testimony be false. 
 
 The number of circumstances is not essential, inasmuch as it repels 
 any suspicion of fraud, but from the consideration that the greater 
 the number of circumstances is, the greater will be the certainty as 
 to the conclusion deduced. A few circumstances may be consistent 
 with several solutions ; but the whole context of circumstances can 
 consist with one hypothesis only ; and the wider the range of circum- 
 stances is, the more certain will it be that the hypothesis which con- 
 sists with, and reconciles them all, is the true one. 
 
 Although all facts and circumstances connected with the subject 
 of inquiry be admissible in evidence to explain its nature, and although 
 all facts must necessarily be consistent with truth, yet it is to be recol- 
 lected, that facts themselves may be simulated and fabricated with a 
 view to deceive and mislead. Such facts, however, are necessarily 
 exposed to great danger of detection, from the obvious difficulty of 
 uniting by artful means that which is false with that which is genuine, 
 and thus substituting a false and artificial for a real consistency and 
 context of circumstances.
 
 CIRCUMSTANTIAL EVIDENCE. 857 
 
 The great difficulty of practising frauds of this description, and 
 their liability to detection from a careful examination and compari- 
 son of circumstances, will be best elucidated by a few examples. 
 Attempts at this kind of deception have not unfrequently been made 
 with a view to conceal the crime of murder, and in order to produce 
 belief that the party died from natural or accidental causes, or was 
 felo de se : in the detection of such *impostures the testimony 
 of medical practitioners cannot be too highly appreciated. L J 
 
 The remarkable case of Sir Edmundbury Godfrey may be cited as 
 an instance of this kind.'' The deceased was found in a ditch at 
 Chalk Farm, in the neighborhood of London, his own sword passing 
 through his body, so that the ends projected two hands' bretidth be- 
 hind his back ; his gloves and some other things were laid on the 
 bank so as to excite a belief that he had destroyed himself. But 
 there was no blood about the place, and upon drawing the sword out 
 of the body no blood followed. The body was discolored and bruised, 
 and the neck so flexible that the chin could be turned from one 
 shoulder to the other. The deceased had in fact been strangled. 
 
 In the State Trials a very singular case of the same description is 
 also mentioned, of a woman who was found in bed with her throat cut : 
 her husband's relations (the husband being absent from home at the 
 time) occupied the apartment adjoining to the chamber of the deceased, 
 and there was no access to her chamber but through their apartment. 
 The relations, who thus occupied the adjoining apartment, had ar- 
 ranged matters so that it might be supposed that the deceased had 
 destroyed herself; but one circumstance amongst others w^as conclu- 
 sive to destroy this supposition, for on the left hand of the deceased 
 was observed the bloody mark of a left hand, which of course could 
 not have been that of the deceased. 
 
 Another instance, cited in an able work on Medical Jurisprudence,^ 
 is to this effect : — A citizen of Liege was found shot, and his own 
 pistol was discovered lying near him, and no person had been seen to 
 enter or to leave the house of the deceased ; from these circumstances 
 
 it was concluded that he had destroyed himself, but on *ex- 
 
 r*8591 
 amining the ball by which he had been killed it was found to ^ -^ 
 
 be too large to have been discharged from that pistol, in consequence 
 
 of which suspicion fell upon the real murderer. 
 
 Secondly : It is essential that all the facts should be consistent with 
 
 " 7 How. St. Tr. 159. 
 
 ' By Dr. Paris and J. S. M. Fonblanque ; see also the publications on the 
 same subject, by Dr. Smith, Dr. Male, and Dr. Taylor.
 
 859 PROOFS — DUTY OF THE JURY. 
 
 the hyjjothesis. For, as all things whicli have happened were necessa- 
 rily congruous and consistent, it follows, that if any one established 
 fact be wholly irreconcilable with the hypothesis, the latter cannot be 
 true. Such an incongruity and inconsistency is sufficient to negative 
 the hypothesis, even although it coincide and agree with all the other 
 facts and circumstances of the case to the minutest extent. Undoubt- 
 edly such an intimate coincidence in other respects would suggest the 
 necessity of investigating the truth of the incongruous circumstances 
 with great caution ; yet if the incongruity could not eventually be 
 removed, the hypothesis would fall, although no other could be sug- 
 gested.'" 
 
 Thirdly : It is essential that the circumstances should he of a conclu- 
 sive nature and tendency. Evidence is always indefinite and incon- 
 clusive, when it raises no more than a limited probability in favor of 
 the fact, as compared with some definite probability against it, 
 whether the precise proposition can or cannot be ascertained. It is, 
 on the other hand, of a conclusive nature and tendency, when the 
 probability in favor of the hypothesis exceeds all arithmetical or 
 definite limits. 
 
 Such evidence is always insufficient, where, assuming all to be 
 proved Avhich the evidence tends to prove, some other hypothesis may 
 still be true ; for it is the actual *exclusion of every hypo- 
 L J thesis which invests mere circumstances with the force of 
 proof. Whenever, therefore, the evidence leaves it indifferent which 
 of several hypotheses is true, or merely establishes some finite pro- 
 bability in favor of one hypothesis rather than another, such evi- 
 dence cannot amount to proof, however great the probability may be. 
 To hold that any finite degree of probability shall constitute proof 
 adequate to the conviction of an offender, would in reality be to assert, 
 that out of some finite number of persons accused, an innocent man 
 should be sacrificed for the sake of punishing the rest ; a proposition 
 which is as inconsistent with the humane spirit of our law as it is with 
 the suggestions of reason and justice. The maxim of law is, that it 
 is better that ninety-nine (/. e. an indefinite number of) offenders 
 should escape, than that one innocent man should be condemned. 
 
 " It was on this principle that the French philosophers opposed Newton's 
 system of the world. They objected that the calculations formed upon the 
 hypothesis made the motion of the moon's apsides but one-half as great as they 
 were proved to be by actual observation. It was afterwards discovered that 
 the error was in nej;lcctinf;; a tangential force in the calculation ; and it was 
 found that, when this was taken into the account, the theoretical result coincided 
 with the fact.
 
 CIRCUMSTANTIAL EVIDENCE. 860 
 
 Thus, in practice, wliere it is certain that one of two individuals 
 committed the offence charged, but it is uncertain whether the one. 
 or the other was the guilty agent, neither of them can be con- 
 victed. 
 
 The principle extends to all cases where the ultimate tendency of 
 the evidence is of an inconclusive nature ; that is, where admitting 
 all to be proved Avhich the evidence tends to prove, the guilt of the 
 accused would be left either wholly uncertain or dependent upon some 
 merely definite probability." 
 
 *It is very possible, indeed, that mere coincidences may 
 be so numerous, as by force of multiplied probability to ex- ^ J 
 elude all reasonable doubt ; but this can never happen in the absence 
 of circumstances of a conclusive tendency, unless the probability be 
 increased to an indefinite extent beyond the reach of mere calcula- 
 tion. Whenever the probability is of a definite and limited nature 
 (whether in the proportion of one hundred to one, or of one thousand 
 to one, or any other ratio, is immaterial), it cannot be safely made 
 the ground of conviction ; for to act upon it in any case would be to 
 decide that, for the sake of convicting many criminals, the life of one 
 innocent man might be sacrificed. 
 
 The distinction between evidence of a conclusive tendency which 
 is sufficient for this purpose, and that which is inconclusive, seems to 
 be this : the latter is limited and concluded by some degree or other 
 of finite probability, beyond which it cannot go; the former, though 
 not demonstrative, is attended with a degree of probability of an 
 indefinite and unlimited nature. 
 
 ° The very remarkable case of Mr. Barnard, who was tried on a charge of 
 sending a threatening letter to the Duke of Marlborough, affords an illustra- 
 tion of these positions. The duke was twice required, by letter, to meet the 
 writer, and on both occasions was met by the prisoner : the one place of as- 
 signation was near a particular tree in Hyde Park ; the other, in an aisle of 
 Westminster Abbey. That Mr. Barnard should, by mere accident, have been 
 at both places at the very time appointed for the meetings was certainly most 
 remarkable : yet, notwithstanding the strong degree of suspicion created by 
 such coincidences, they were clearly insufficient, without more, to warrant a 
 conviction. The prisoner was, nevertheless, put upon his defence, and jjroduced 
 evidence to show that those coincidences were purely accidental. Perhaps the 
 real clue to the transaction may be this, that the prisoner was a party to the 
 transaction, although no real intention existed of profiting by the contrivance. 
 The rank and situation of the prisoner in society, and the obvious impossibility 
 of his ever enjoying that which he demanded, are circumstances strongly tend- 
 ing to exclude such a supposition, and the nature and style of the demand 
 render it probable that the real object of the writer was not personal gain.
 
 861 PROOFS — DUTY OF THE JURY. 
 
 It frequently happens, as Las been seen, thatwbere the evidence of 
 the circumstances attending the transaction itself would be imperfect 
 and inconclusive, it derives a conclusive nature and tendency from a 
 consideration of the conduct of the accused. The ordinary motives 
 of self-preservation and self-interest, common to all mankind, furnish 
 the strongest presumption that a party would explain, by statement 
 at all events, and by proof where *it was practicable, such 
 •- "-' evidence as tended to his prejudice. Hence it is that circum- 
 stances, which abstractedly considered would be inconclusive, acquire 
 a conclusive character and tendency, from the silence of the adversary, 
 or his failure in attempting to explain them." 
 
 Where the evidence to prove larceny consists in the recent posses- 
 sion of the stolen property, it is in itself imperfect and inconclusive. 
 But if the evidence of possession be coupled with the consideration 
 that the party charged, having it in his power to account for the pos- 
 session, if it really consist with his innocence, either refuses to account 
 for the possession or attempts to impose a false account, the evidence 
 is then conclusive in its nature and tendency, and is proper for the 
 consideration of the jury. 
 
 Fourthly : It is essential that the circumstances should, to a moral 
 certainty^ actually exclude every hypothesis hut the one proposed to he 
 •proved.^ 
 
 Hence results the rule in criminal cases, that the coincidence of 
 circumstances to indicate guilt, however strong and numerous they 
 may be, avails nothing unless the corpus delicti, the fact that the 
 crime has been actually perpetrated, be first established. So long 
 as >the least doubt exists as to the act, there can be no certainty 
 as to the criminal agent. Hence, upon charges of homicide it is an 
 established rule that the accused shall not be convicted unless the 
 death be first distinctly proved, either by direct evidence of the fact 
 or by inspection of the body : a rule warranted by melancholy expe- 
 rience of the conviction and execution of supposed offenders, charged 
 with the murder of persons who survived their alleged murderers; as 
 in the case of the uncle already alluded to, cited by Sir Edward 
 Coke and Lord Hale. So, Lord Ilalc recommends that no prisoner 
 shall be convicted of larceny in stealing the goods of a person un- 
 known, unless the fact of the robbery be previously *proved.i 
 •- ^ The same principle requires that upon a charge of homicide, 
 even when the body has been found, and although indications of a 
 
 " Supra, p. 845. p Hedge's case, 2 Lew, C. C. 227. 
 
 1 See tit. Larceny.
 
 CIRCUMSTANTIAL EVIDENCE. 863 
 
 violent death be manifest, that it shall still be fully and satisfactorily 
 proved that the death was neither occasioned by natural causes,' 
 by accident, nor by the act of the deceased himself. In considering 
 the probability of the latter supposition, it is to be recollected that 
 it is by no means improbable that a person bent on self-destruction 
 would use precautions to protect his memory from ignominy, and 
 his property from the forfeiture, consequent on a verdict of felo 
 de se.^ 
 
 The force of circumstantial evidence being exclusive in its nature 
 and the mere coincidence of the hypothesis with the circumstances 
 being in the abstract insufficient, unless they exclude every other 
 supposition, it is essential to inquire, with the most scrupulous atten- 
 tion, what other hypothesis there may be which may agree wholly 
 or partially with the facts in evidence. Those which agree even 
 partially with the circumstances are not unworthy of examination, 
 because they lead to a more minute examination of those facts Avith 
 which at first they might *appear to be inconsistent; and it 
 is possible that upon a more minute investigation of those ^ J 
 facts their authenticity may be rendered doubtful, or may be even 
 altogether disproved. In criminal cases the statement made by the 
 accused is in this point of view of the most essential importance. 
 Such is the complexity of human affairs, so infinite the combinations 
 of circumstances, that the true hypothesis which is capable of ex- 
 plaining and reconciling all the apparently conflicting circumstances 
 of the case, may escape the acutest penetration; but the prisoner, 
 so far as he alone is concerned, can always afford a clue to them ; 
 and though he be unable to support his statement by evidence, 
 his account of the transaction is for this purpose always most mate- 
 
 ^ See the trial of Spencer Cowper, for the alleged murder of Sarah Stout : 13 
 How. St. Tr. 1105. The doubt which arose in that case upon the conflicting 
 evidence, whether the death of the deceased had been occasioned by mere acci- 
 dent, or by her own act, or by the act of another, afforded, as it seems, a deci- 
 sive ground for acquittal. 
 
 ^ In a little work, entitled The Theory of Presumptive Proof, is cited the case 
 of Thomas Harris, who was executed at York, for the murder of James Gray, 
 in the year 1642. According to that statement, Harris kept a public house, and 
 was charged by his man servant, Morgan, with having strangled James Gray, a 
 travelling guest, in his house ; upon the testimony of Morgan, aided by some 
 circumstantial evidence, as to the prisoner's having on the same morning con- 
 cealed some money in his garden, the prisoner was convicted and executed, al- 
 though no marks of violence appeared on the body of the deceased, and who had 
 in fact died of apoplexy, as appeared by the subsequent confession of the wit- 
 ness himself.
 
 864 PKOOFS — DUTY OF THE JURY. 
 
 rial and important. The effect may be, on the one hand, to suggest a 
 view of the case which consists with the innocence of the accused, and 
 which might otherwise have escaped observation; on the other hand, 
 its effect may be to narrow the question to the consideration whether 
 that statement be or be not excluded and falsified by the evidence. 
 
 The recent possession of stolen property is, independently of the 
 conduct and declarations of the accused, or his silence, very imper- 
 fect evidence of guilt ; the apparent possession may have resulted 
 from the malicious act of some other person. In a case, therefore, 
 where no act of concealment or assumption of property can be 
 proved, and the accused is consistent in denying all knowledge of 
 possession, such a defence becomes entitled to the most serious atten- 
 tion, and exacts a most rigorous inquiry as to its truth or probability; 
 where, on the other hand, the prisoner admits the possession, and 
 attempts to account for it by a false statement, the necessity for such 
 an inquiry does not arise.' 
 
 *\Vhat circumstances will amount to proof can never be 
 L -■ matter of general definition ; the legal test is the sufficiency 
 
 of the evidence to satisfy the understanding and conscience of the 
 jury. On the one hand, absolute, metaphysical and demonstrative 
 certainty is not essential to proof by circumstances. It is sufficient 
 if they produce moral certainty to the exclusion of every reasonable 
 doubt; even direct and positive testimony does not afford grounds 
 of belief of a higher and superior nature. To acquit upon light, 
 trivial and fanciful suppositions and remote conjectures, is a virtual 
 violation of the juror's oath, and an offence of great magnitude 
 against the interests of society, directly tending to the disregard of 
 the obligation of a judical oath, the hindrance and disparagement of 
 
 * A lamentable case occurred some years ago (I state from common report 
 only), which strongly illustrates the necessity of exerting the utmost vigilance 
 in negativing satisfactorily every other possible hypothesis, in a case of purely 
 circumstantial evidence. A servant girl was charged with having murdered 
 her mistress. The circumstantial evidence was very strong ; no persons were 
 in the house but the murdered mistress and the prisoner, the doors and windows 
 were closed and secure, as usual ; upon this and some other circumstances the 
 prisoner was convicted, principally upon the presumption, from the state of the 
 doors and windows, that no one could have had access to the house but herself, 
 and she was accordingly executed. It afterwards appeared, by the confession 
 of one of the real murderers, that they had gained admission to the house, 
 which was situated in a narrow street, by means of a board thrust across the 
 street, from an upper window of the opposite to an upper window of the house 
 of the deceased ; and that the murderers retreated in the same way, leaving no 
 trace behind them.
 
 CIRCUMSTANTIAL EVIDENCE. 865 
 
 justice, and the encouragemeMt of malefactors. On the other hand, 
 a juror ouglit not to condemn unless the evidence exclude from his mind 
 all reasonable doubt as to the guilt of the accused, and, as has been 
 ■well observed, unless he be so convinced bj the evidence that he would 
 venture to act upon that conviction in matters of the highest concern 
 and importance to his own interest; and in no case, as it seems, ought 
 the force of circumstantial evidence sufficient to warrant conviction, 
 to be inferior to that which is derived from the testimony of a single 
 witness, the lowest degree of direct evidence. 
 
 *Lastly : It seems that mere circumstantial evidence ought 
 in no case to be relied on where direct and positive evidence, ^ -" 
 which might have been given, is wilfully withheld by the prosecutor. 
 Where direct evidence is attainable, circumstantial evidence is of a 
 secondary nature ; beside, the great excellence of indirect evidence is 
 its freedom from suspicion, and no greater discredit can be thrown 
 upon it than by the withholding of direct evidence. 
 
 Thirdly, with respect to cases of conflicting evidence. The first 
 step in the process of inquiry, in these cases must naturally and ob- 
 viously be, to ascertain whether the apparent inconsistencies and in- 
 'congruities which such evidence presents may not without violence be 
 reconciled, and if not, to what extent, and in what particulais, the ad- 
 verse evidence is irreconcilable ; and then, by careful investigation 
 and comparison, to reject that which is vicious ; and thus, if it be 
 practicable, to reduce the whole testimony and circumstances of uni- 
 form and consistent tendency. 
 
 Where the testimony of direct witnesses is apparently at variance, 
 it is to be considered, in the first place, whether they be not in reality 
 reconcilable, especially where there is no extrinsic reason for suspect- 
 ing error or fraud. But if their statements upon examination be 
 found to be irreconcilable, it becomes an important duty to distinguish 
 between the misconceptions of an innocent witness, which may not 
 affect his general testimony, and wilful and corrupt misrepresentations 
 which destroy his credit altogether. The presumption of reason as 
 well as of law in favor of innocence, will attribute a variance in testi- 
 mony to the former rather than the latter origin. Partial incongrui- 
 ties and discrepancies in testimony, as to collateral points, are, as has 
 been already observed, to be expected ; and it is for a jury to deter- 
 mine whether in the particular instance they are of such a nature and 
 character, under all the circumstances, that they may be or cannot be 
 attributed to mistake. In estimating the *probability of mis- (-^n/^y-i 
 take and error, and also in deciding on which side the mistake ^ -^
 
 867 PROOFS — DUTY OF THE JURY. 
 
 lies, much must depend on the natural talents of the adverse wit- 
 nesses, their quickness of perception, strength of memory, their 
 previous habits of general attention, or of attention to particular 
 subject-matters. A physician or surgeon would be much more likely 
 to observe particular symptoms or appearances in a medical or surgi- 
 cal case, and to form from them correct conclusions, than an un- 
 skilful and inexperienced person would be likely to do. Much 
 must also depend upon a comparison of the means and opportunity 
 which the witnesses had for making observations, of the circum- 
 stances which were likely to excite and engage their attention, and 
 of their reasons and motives for attending ; and here it is to be ob- 
 served, that there is an important distinction between positive and 
 negative testimony. 
 
 If one witness were positively to swear that he saw or heard a fact, 
 and another were merely to swear that he was present, but did not 
 see or hear it, and the witnesses were equally trustworthy, the general 
 principle would, in ordinary cases, create a preponderance in favor of 
 the affii'mative ; for it would usually happen that a witness who swore 
 positively, minutely and circumstantially to a fact which Avas untrue, 
 would be guilty of perjury, but it would by no means follow that a 
 witness who swore negatively would be perjured, although the affirma- 
 tive were true ; the falsity of the testimony might arise from inatten- 
 tion, mistake, or defect of memory ; and therefore, even independ- 
 ently of the usual presumption in favor of innocence, the probability 
 would be in favor of the affirmative. If, for instance two persons 
 should remain in the same room for the same period of time, and one 
 of them should swear that during that time he heard a clock in the 
 room strike the hour, and the other should swear that he did not hear 
 the clock strike, it is very possible that the fact might be true, and yet 
 each might swear truly. It is not only possible, but probable that 
 
 the latter ^witness, thou2;h in the same room, through inat- 
 r*8681 ' o ' o ^ 
 
 - J tention, might be unconscious of the fact, or, being conscious 
 
 of it at the time, that the recollection had afterwards faded from 
 his memory. It follows, therefore, by way of corollary to the last 
 proposition, that in such cases, unless the contrary manifestly appear, 
 the presumption in favor of human veracity operates to support the 
 affirmative. 
 
 And further, when, in cases of conflicting testimony, upon a com- 
 parison between the witnesses in respect of the means and opportu- 
 nity which they have had of ascertaining the facts to which they 
 testify, it turns out that the one class has had more competent and
 
 CONFLICT OF TESTIMONY. 868 
 
 adequate means of information than the other ; or that, under the 
 circumstances, the attention of the latter was not so likely to be so 
 fully excited and particularly directed to the facts, this principle co- 
 operates with the Aveight of evidence in favor of the former, in all 
 cases where there is room for error or mistake. 
 
 The application of this principle supposes that the positive can be 
 reconciled with the negative testimony without violence and con- 
 straint. Evidence of a negative nature may, under particular cir- 
 cumstances, not only be equal, but superior, to positive evidence. 
 This must always depend upon the question, whether, under the par- 
 ticular circumstances, the negative testimony can be attributed to 
 inattention, error or defect of memory. If, in the instance above 
 supposed, two persons Avere placed in the room Avhere the clock was, 
 for the express purpose of ascertaining by their senses whether it 
 would strike or not, there would be little room to attribute the vari- 
 ance between their negative testimony and the positive testimony of 
 a third Avitness to mistake or inattention, and the real question would 
 be as to the credit of the witnesses. 
 
 It is also observable that this principle is inapplicable, where a 
 negative depends on the establishment of an opposite positive fact. 
 Thus an alihi negatives the actual commission of a ci'ime by the 
 prisoner ; but the evidence *is of as direct and positive a 
 nature as that Avhich tends to prove his presence and actual ^ "^-^ 
 commission of the crime. 
 
 Where the testimony of conflicting Avitnesses is irreconcilable, 
 and cannot be attributed to incapacity or error, it frequently be- 
 comes a painful and difficult task to decide to Avhich class credit is 
 due. And here it is to be observed, in the first place, that all 
 those considerations Avhich have been applied as tests of the credit 
 and veracity of Avitnesses uncontradicted, are also tests of credi- 
 bility in cases of conflict. The first point of comparison is their 
 character for integrity. This may either depend on positive evi- 
 dence as to their previous situation," conduct and character, or 
 
 " The Roman law was farmore copious than our own, in its rules of exclusion. 
 Consequens est, tit in omnibus causis Jidem testium elevet (etas pnerilis, insania, 
 conditio vitce, turpitudo, jiaupertas, magnum opprobi'itim, &c. : Heinecc. El. .J. 
 C, Part IV., sec. cxxxviii. L. 10, fl". L. 10, c. h. t. — Kec servorum iestimonio cre- 
 dendum esse, nisi alia desit ratio veritatem eruendi: Ibid. sec. cxxxviii., L. 7, ff. 
 h. f. — Vacillare Jidem mulierum quce qucestum corpore fecerunt : L. 3, § 5, h. — 
 Eorum qui vitam ad cultrum vel ad depugnandas bestias locarunt : L. 3, § 5, h. 
 f. — Omnium, viliorum et pauperum quamditi aliorum est copia: L. 3, ff. L. 18, c. 
 h. t. — Ut merito repeUantur j)ater in causa filii, Jilius in causa patris, aliique
 
 870 PROOFS — DUTY OF THE JURY. 
 
 *maj be matter of inference and presumption, from their 
 L -' relative situation as 'to the parties, or the subject-matter of 
 
 the cause, and the various and almost innumerable circumstances by 
 which their testimony may be influenced or biased. Where testimony 
 is equally balanced in all other respects, a slight degree of interest 
 or connection may be sufficient to turn the scale. In such cases, also, 
 any variance in the testimony of the witness from a former statement 
 relating to the same transaction, if it be established and not explained, 
 necessarily tends to impeach either his integrity or his ability. 
 
 All those circumstances which were likely to influence and bias 
 witnesses in favor of the party, are of course entitled to great con- 
 sideration in weighing their credit, although they do not exclude their 
 testimony. These are of too obvious and extensive a nature to require 
 enumeration : not only may the stronger motives arising from the ties 
 of consanguinity, friendship, or expectation of future gain, cast a 
 doubt upon the credit of witnesses whose testimony is contrasted with 
 that of persons who stand wholly indifi"erent, but so also in cases 
 where, in other respects the weight of testimony is nicely balanced, 
 may many considerations of inferior and weaker description ; such as 
 the interest which the witness may possess in a similar question, or 
 the bias and prejudice which may arise in favor of a party from con- 
 nection in the way of trade, profession, or membership of any de- 
 scription -."^ considerations of this kind, which would frequently afford 
 
 potestati vel imperio alierius, subjecti, vel domestici: L. 6, L. 9, L. 24, f. L. 3, L. 
 c. h. t. — Tit suspecti eiiam sunt amid et inimici: L. 3, pr. fF. L. 5, L. 17. — 
 Although a proper sense of the sacred obligation of an oath may be equally 
 strong in every condition of society, yet the temporal consequences of detected 
 perjury or prevarication may frequently depend much on the witness's rank or 
 situation in life. To a common laborer, the temporal consequences of a viola- 
 tion of his oath would probably be confined merely to temporal punishment, 
 and that only upon a conviction after an expensive legal process ; whilst to a 
 solicitor or attorney, whose professional existence depends upon his reputation 
 and credit, loss of character consequent upon detection, although there should 
 be no conviction, might end in his ruin. Considerations of this nature must 
 obviously possess a contrary tendency, where the testimony of a witness tends 
 to repel and remove some charge of improper conduct, which would otherwise 
 affect his reputation. Thus, upon a question whether a testator was capable of 
 executing a will, a professional witness, whether legal or medical, has an interest 
 in proving the capacity; for the fact that he had made or even witnessed a will, 
 executed by one utterly incapable of making one, would affect his professional 
 charcacter. Such observations apply in those cases only of doubt and suspicion 
 where the evidence is of a conllicting nature. 
 
 * Parimente le crcdibilitil di un testimonio puo essere alcuna volta sminuita 
 qiuind' cgli sia membro d' alcuna sociatii privata, di cui gli usi, e le massime siano
 
 CONFLICT of'testimony. 870 
 
 not the slightest ground of questioning the credit of an unimpeached 
 *witness, may become of essential importance when the credit r-^nn-,-, 
 of conflicting witnesses is in other respects in a state of equi- ^ -^ 
 poise. 
 
 Such considerations become still more important where any sus- 
 picion arises from the manner and demeanor of the Avitness in deliver- 
 ing his testimony. These, indeed, frequently afford strong tests for 
 judging of his sincerity, although his motive be not apparent. Mani- 
 festations of warmth and zeal beyond those which the occasion 
 naturally calls for, over-forwardness in testifying that which will 
 benefit the party for whom he testifies, and ill-concealed reluctance 
 in declaring that Avhich tends to his prejudice, flippancy and levity 
 of manner, coldness and apathy in describing injuries which would 
 naturally excite a contrary feeling, indications of subtlety, artifice 
 and cunning, are, with a multitude of others, tests for estimating the 
 true character of a witness and the value of his testimony. 
 
 But above all, where the credit of conflicting witnesses is doubtful, 
 as far as regards their number, their integrity, their means of know- 
 ledge, and the consistency and probability of their testimony, a com- 
 parison of their statements Avith each other, and with undisputed or 
 established facts, is a great test of credibility. 
 
 The relative consistency of testimony is a most important test of 
 comparison. The testimonies of witnesses of truth will consist with 
 each other, and with all the established circumstances of the case, in 
 numerous and minute particulars, which are frequently beyond the 
 reach of invention,^ and will exhibit that degree of solid coherency 
 *which necessarily results from a real and actual connection r-^Q,,^! 
 and congruity in nature, which minuteness and detail of cir- •- "'-' 
 cumstances will serve but to render more complete : with false wit- 
 nesses the very reverse takes place; their testimony must either 
 be sparing in circumstances, and therefore of a nature obviously sus- 
 
 non ben conosciute o diverse dalle puliche. Un tal uomo ha non solo le pro- 
 pria ma le altrui passioni : Beccai'ia, c. 13. 
 
 y Dr. Paley, with reference to historical evidence, says, " The undesignedness 
 of coincidences is to be gathered from their latency, their minuteness, their ob- 
 liquity ; the suitableness of the circumstances in which they consist to the 
 places in which those circumstances occur, and the circuitous references by 
 which they are traced out, demonstrate that they have not been produced by 
 meditation or by any fraudulent contrivance ; but coincidences from which these 
 causes are excluded, and which are too close and numerous to be accounted for 
 by accidental concurrence of fiction, must necessarily have truth for their 
 foundation." 
 50
 
 872 PROOFS — DUTY OF THE JURY. 
 
 picious, or be liable to detection from comparing the invented circum- 
 stances with each other, and with those which are known to be true. 
 
 In cases of conflicting testimony, and particularly where the subject 
 of litigation is remote in point of time, or the question depends upon 
 the terms of oral communications, the evidence of written documents 
 connected with the transaction are, on account of their permanency, 
 of the most obvious and essential importance. Every day furnishes 
 instances of the weakness of human memory in such cases, and great 
 opportunity is afforded for misrepresentation or mistake ; whilst 
 writings are permanent, and, as has well been observed, are witnesses 
 difficult to be corrupted.'" 
 
 As the depositions of dead or absent witnesses are, in point of law, 
 of a secondary nature to the vivd voce testimony of witnesses sub- 
 jected to the ordeal of cross-examination, so are they inferior and 
 weaker in point of force and effect. So true is it, that a witness will 
 frequently depose that in private, which he would be ashamed to 
 certify before a public tribunal.* It is by the test of a public exami- 
 nation, and by that alone, that the credit of a witness, both as to 
 honesty and ability, can be thoroughly tried and appreciated.^ Nam 
 minus obstitisse videtur pudor inter jpaucos signatores,'^ is an ancient 
 and a powerful observation in favor of oral testimony. 
 
 As the credit due to a witness is founded in the first *in- 
 
 r*873"1 
 
 L J stance on general experience of human veracity, it follows 
 
 that a witness who gives false testimony as to one particular, cannot 
 be credited as to any, according to the legal maxim, falsuni in uno, 
 falsum in omnibus. The presumption that the witness will declare 
 the truth ceases as soon as it manifestly appear that he is capable of 
 perjury. Faith in a witness's testimony cannot be partial or frac- 
 tional ; where any material fact rests on his testimony, the degree of 
 credit due to him must be ascertained, and according to the result his 
 testimony is to be credited or rejected. 
 
 It is scarcely necessary to observe, that this principle does not 
 extend to the total rejection of a witness whose misrepresentation 
 has resulted from mistake or infirmity, and not from design ; but 
 though his honesty remain unimpeached, this is a consideration 
 which necessarily affects his character for accuracy. Neither does 
 the principle apply to testimony given in favor of the adversary ; 
 
 ^ Montesquieu, Espr. dc Loix, 1. 28, c, 44. 
 
 » 3 Bl. Comm. 373. 
 
 *" Supra, p 34 ; see Pothier, Ijy Evans, vol. ii. p. 235. 
 
 •^ Quinctil. 1, 5, c. G.
 
 CREDIT OF WITNESSES. 873 
 
 such evidence is rather to be considered as truth reluctantly ad- 
 mitted, and divulged only because it was not in the power of a cor- 
 rupt witness to conceal it. Hence it is a general principle, that 
 a jury may believe that which makes against his point who swears, 
 although they do not believe that which makes for it.** 
 
 The rejection of the witness may not be the only consequence of 
 detection ; for if there be reason to suppose, from the circumstances, 
 that his perjury or prevarication is the result of subornation, it 
 affords a reasonable ground, in a doubtful case, for suspecting the 
 testimony of other witnesses adduced by the same party. This 
 observation has no weight where it is apparent that the imputation 
 is merely personal, and results from collateral motives independent 
 of the cause. 
 
 The presumption is always primd facie, and in the absence of 
 circumstances which generate suspicion, in *favor of the [-:cq7 i-i 
 veracity of a witness; but where the usual and general pre- 
 sumption is encountered by an opposite one, it is necessary that the 
 credit of the witness should be established by some collateral aid, to 
 the satisfaction of a jury. The ordinary case of an accomplice 
 affords an illustration of this application of the principle : his testi- 
 mony is in practice deemed to be insufficient unless his credit be es- 
 tablished by confirmatory evidence. 
 
 As it is universally admitted that circumstantial evidence is in its 
 own nature sufficient to warrant conviction, even in criminal cases, 
 and as the test of sufficiency is the understanding and conscience of 
 a jury, it would be superfluous and nugatory to enter into a discus- 
 sion of the comparative force and excellence of these different modes 
 of proof, where they do not conflict with each other. In the abstract, 
 and in the absence of all conflict and opposition between them, the 
 two modes of evidence do not in strictness admit of comparison ; for 
 the force and efficacy of each may, according to circumstances, be 
 carried to an indefinite and unlimited extent, and be productive of 
 the highest degree of probability, amounting to the highest degree of 
 moral certainty. With regard to the comparative force and efficacy 
 of these modes of proof, it is clear that circumstantial evidence 
 ought not to be relied on where positive proof can be had, and that 
 so far the former is merely of a secondary nature.® Hence it seems 
 to be clear that no conviction in a criminal case ought ever to be 
 founded on circumstantial evidence, where the prosecutor might have 
 
 ^ See Lord Mausfield's observations in Bermon v. Woodbridge, Doug. 781. 
 * 3 Comm. 371.
 
 874 PROOFS — DUTY OF THE JURY. 
 
 adduced direct evidence; iand in civil cases the resorting to such a 
 practice would, in a doubtful case, be a circumstance pregnant with 
 the strongest suspicion. 
 
 The characteristic excellence of direct and positive evidence con- 
 sists in the consideration that it is more immediate and more proxi- 
 j-^oi^r-i mate to the fact; and if *no doubt or suspicion arise as to 
 
 the credibility of the witnesses, there can be none as to the 
 fact to which they testify ; the only question is as to their credit. 
 On the other hand, the virtue of circumstantial evidence is its free- 
 dom from suspicion, on account of the exceeding difficulty of simu- 
 lating a number of independent circumstances, naturally connected 
 and tending to the same conclusion. In theory, therefore, circum- 
 stantial evidence is stronger than positive and direct evidence, wher- 
 ever the aggregate of doubt, arising, first, upon the question, whether 
 the facts upon which the inference is founded are sufficiently estab- 
 lished ; and, secondly, upon the question, whether, assuming the facts 
 to be fully established, the conclusion is correctly drawn from them, 
 is less than the doubt, whether, in the case of direct and positive 
 evidence, the witnesses are entirely trustworthy. Where no doubt 
 exists in either case, comparison is useless ; but it is very possible 
 where there is room for suspecting the honesty or accuracy of direct 
 Avitnesses, that the force of their evidence may fall far short of that 
 which is frequently supplied by mere circumstantial evidence ; and 
 whenever a doubt arises as to the credibility of direct witnesses, it is 
 an important consideration in favor of circumstantial evidence, that 
 in its own nature it is much less liable to the practice of fraud and 
 imposition than direct evidence is ; for it is much easier to suborn a 
 limited number of witnesses to swear directly to the fact, than to 
 procure a greater number to depose falsely to circumstances, or to 
 prepare and counterfeit such circumstances as will without detection 
 yield a false result. The increasing the number of false witnesses 
 increases the probability of detection in a very high proportion; 
 for it multiplies the number of points upon which their statements 
 may be compared with each other, and also the number of points 
 where their testimony comes in contact with the truth; and therefore 
 multiplies the danger of inconsistency and variance in the same pro- 
 portion. 
 r^t^sT"! *^^' ^^ ^^^^ other hand, it is exceedingly difficult by artful 
 
 practice to create circumstances which shall wear the appear- 
 ance of truth, and tend effectually to a false conclusion. The num- 
 ber of such circumstances must of necessity be limited in their nature;
 
 CIRCUMSTANTIAL EVIDENCE. 876 
 
 they must be such as are capable of fabrication by an interested 
 party, and such that their materiality might be foreseen. Hence all 
 suspicion of fraud may be excluded by the very number of concur- 
 ring circumstances, when they are derived from various but independ- 
 ent sources, or by the nature of the circumstances themselves, when 
 either it was not in the power of the adverse party to fabricate them, 
 or their materiality could not possibly have been foreseen, and 
 consequently where no temptation to fabricate them could have 
 existed. 
 
 The correspondence or inconsistency of direct evidence with well- 
 established circumstances, is the great, and frequently the only test, 
 for trying the truth of direct testimony which labors under suspicion . 
 A perjured witness will naturally, with a view to his own security, 
 so frame bis fiction as to render contradiction by direct and opposite 
 testimony impracticable. He will also be sparing in his detail of 
 circumstances which are false, and which are capable of contradiction ; 
 , the more circumstantial his statement is, the more open it is to detec- 
 tion. Hence it is that circumstantiality of detail is usually a test of 
 sincerity, provided the circumstances be of such a nature as to be 
 capable of contradiction if they be false ; and that, on the other hand 
 if a witness be copious in his detail of circumstances which are inca- 
 pable of contradiction, but sparing of those which are of an opposite 
 kind, his testimony must necessarily be regarded with a degree of 
 suspicion. As circumstances are the best and frequently the only 
 means of detecting false testimony, it follows that no fictions are more 
 formidable and more difficult to be detected than those which are mixed 
 up with a large portion of truth ; every circumstance of truth inter- 
 woven with the fiction, so *far from being merely negative in 
 its eff'ect, in aff'ording no aid for detecting the fraud, actually L J 
 tends to confirm and support it. 
 
 It is however to be observed, that positive testimony ought not to 
 be rejected on the ground of inconsistency with circumstances, unless 
 the incongruity be of a conclusive and decisive nature. Mere impro- 
 bability is usually an insufiicient ground for the rejection of posi- 
 tive testimony which labors under no suspicion ; for experience fre- 
 quently shows that circumstances do in reality agree and did actually 
 co-exist, although, from ignorance of the numerous links by which 
 they are united and connected, their co-existence would a pr-iori have 
 been deemed to be highly improbable. 
 
 When, however, the positive testimony labors under doubt and sus- 
 picion, mere circumstantial evidence is frequently sufficient to prevail,
 
 877 PROOFS — DUTY OF THE JURY. 
 
 altliougli such testimony be not wholly and absolutely irreconcilable 
 with the facts. Thus in the case of Mr. JoUiffe's will, the will was es- 
 tablished on circumstantial evidence, in opposition to direct testimony 
 of the attesting witnesses. 
 
 Where doubt arises from circumstances of an apparently opposite 
 and conflicting tendency, the first step in the natural order of inquiry 
 is to ascertain whether they be not in reality reconcilable, especially 
 where circumstances cannot be rejected without imputing perjury to a 
 witness ; for perjury is not to be presumed ; and in the absence of all 
 suspicion, that hypothesis is to be adopted which consists with and 
 reconciles all the circumstances which the case supplies. In the next 
 place, where the circumstances are inconsistent and irreconcilable, it 
 becomes necessary to inquire which of them are attributable to error 
 or design. Here again, in distinguishing between the real and genuine 
 circumstances, and those which are spurious, regard is to be had to 
 those principles which have already been adverted to: it is rather to 
 be presumed that one witness was mistaken, where there was room 
 for mistake, *than that another witness, where the facts ex- 
 ^ -I eluded all mistake, was wilfully perjured. Where mistake is 
 out of the question, an examination of the different degrees of credit 
 due to the witnesses on whose testimony the conflicting circumstances 
 depend, becomes material ; and in such cases a careful comparison 
 of the circumstances which they state, with facts either admitted 
 or fully established, is of the most obvious and essential importance. 
 Every admitted or established fact affords an additional test for try- 
 ing the truth and genuineness of those which are doubtful, by means 
 of which those which are genuine may be established and become ad- 
 ditional tests of truth, and those which are false may be rejected. 
 
 Whenever any fact is found to be wholly inconsistent with those 
 which are either admitted or indubitably proved, the mere rejection 
 of that single fact, and the difficulty thus removed, is not the only 
 step gained in the progress towards truth ; the vicious evidence must 
 have resulted from error or from fraud ; and whether, under the 
 circumstances, it is to be ascribed to the one source or the other, it 
 affords a test for judging of the ability or integrity of the witness, and 
 not unfrcqucntly affords some insight into the conduct of the party. 
 
 Frauds in circumstantial evidence are of two kinds : a false witness 
 may swear to circumstances purely fictitious, or an honest witness 
 may swear to circumstances which he has really observed, but which 
 have been prepared with a view to deceive ; as in the instance already 
 alluded to, where a discharged pistol was placed near the body of a 
 murdered person, to induce a belief that he had destroyed himself.
 
 CONFLICT OP TESTIMONY. 878 
 
 Those of the formei' description admit of absolute and positive con- 
 tradiction, or may be detected bj the inconsistency of the fictitious 
 circumstances with those established by unexceptionable testimony; 
 and the witness himself is liable to detection in his attempt to inter- 
 weave that which he has invented Avith that which is true. Simu- 
 lated facts, on the other hand, are in themselves true ; *they 
 
 . 'J r*8791 
 
 are false only inasmuch as they tend to induce a false con- •- -• 
 
 elusion. These, however, are open to detection by a careful com- 
 parison with established circumstances ; it is beyond the power of 
 human subtlety to create a false consistency of circumstances beyond 
 a very limited extent.^ 
 
 No cases of conflicting evidence are more difficult of solution than 
 those where facts apparently well established lead to opposite conclu- 
 sions. These, in some remarkable instances, are of such a nature as 
 to leave the mind in a state of perplexity after the most patient and 
 laborious investigation. This more especially happens where the 
 obscurity arises from the conduct of the parties concerned ; so diffi- 
 cult is it to ascertain the real motives by which the actors in a dis- 
 tant transaction were influenced, or even to determine whether their 
 conduct has not resulted from weakness or caprice, rather than from 
 any settled or determinate principles of action, or from the operation 
 of mixed, fluctuating and transitory motives, which can no longer be 
 distinctly traced. The celebrated Douglas case may be cited as a 
 striking instance of this nature. The gross improbability that Sir 
 John Stuart and Lady Jane would, under the circumstances, have 
 attempted a monstrous fraud, the eflect of which might be to deprive 
 their own future ofi'spring of their legitimate rights, and the vast 
 danger and difficulty of carrying such a scheme into execution, by 
 the procurement of two supposititious children, either by stealth or by 
 bribery, situated as they were, with but slender resources in a foreign 
 capital, under the eye of a vigilant police, were circumstances so 
 strong in favor of the legitimacy of the children, that nothing but 
 the strange and unaccountable conduct of the parties could have in- 
 duced fair and reasonable doubts upon this interesting and important 
 question. To pursue these considerations further would be inconsis- 
 tent with the limits of *the present treatise. Suffice it to 
 add, that where conflicting probabilities are nicely balanced, ^ -* 
 it rarely happens that some rule of legal policy does not turn the 
 scale, even in civil cases; and that in criminal proceedings, where 
 reasonable doubt exist, mercy ought to prevail. 
 
 ' Supra, p. 67.
 
 APPENDIX. 
 
 Statute 6 & 7 VICT. Cap. LXXXV. 
 
 An Act for improving the Law of Evidence. 
 
 [227id August, 1843.] 
 
 " WHEREAS the inquiry after truth in courts of justice is often ob- 
 structed by incapacities created by the present law, and it is desirable that 
 full information as to the facts in issue, both in criminal and civil cases, 
 should be laid before the persons who are appointed to decide upon them, 
 and that such persons should exercise their judgment on the credit of the 
 witnesses adduced and on the truth of their testimony ; Now therefore be it 
 enacted by the Queen's most excellent Majesty, by and with the advice and 
 consent of the Lords spiritual and temporal, and Commons, iu this parliament 
 assembled, and by the authority of the same. That no person offered as a 
 witness shall hereafter be excluded by reason of incapacity from crime or 
 interest from giving evidence, either in person or by deposition, according to 
 the practice of the court, on the trial of any issue joined, or of any matter 
 or question or on any inquiry, arising in any suit, action, or proceeding, civil 
 or criminal, in any court, or before any judge, jury, sheriff, coroner, magis- 
 trate, officer, or person having, by law or by consent of parties, authority to 
 hear, receive, and examine evidence ; but that every person so offered may 
 and shall be admitted to give evidence on oath, or solemn affirmation in those 
 cases wherein affirmation is by law receivable, notwithstanding that such 
 person may or shall have an interest in the matter in question, or in the 
 event of the trial of any issue, matter, question, or inquiry, or of the suit, 
 action, or proceeding in which he is offered as a witness, and notwithstanding 
 that such person offered as a witness may have been previously convicted of 
 any crime or offence : Provided that this act shall not render competent any 
 party to any suit, action, or proceeding individually named in the record, or 
 any lessor of the plaintiff, or tenant of premises sought to be recovered in 
 ejectment, or the landlord or other person in whose right any defendant in 
 replevin may make cognizance, or any pei'son in tvhose immediate and indi- 
 vidual behalf any action may he brought or defended, either wholly or in 
 part, or the husband or wife of such persons respectively; provided also, that
 
 881 APPENDIX. 
 
 this act shall not repeal any provision in a certain act passed in the session 
 of parliament *holden in the seventh year of the reign of liis late 
 L -• Majesty and in the first year of the reign of her present Majesty, 
 intituled "Act for the Amendment of the Laws with respect to Wills:" 
 Provided that in courts of equity any defendant to any cause pending in any 
 such court may be examined as a witness on the part of the plaintifi* or of 
 any co-defendant in any such cause, saving just exceptions; and that any 
 interest which said defendant so to be examined may have in the matter or 
 any of the matters in question in the cause shall not be deemed a just ex- 
 ception to the testimony of such defendant, but shall only be considered as 
 affecting or tending to affect the credit of such defendant as a witness. 
 
 II. And be it enacted. That wherever in any legal proceedings whatever 
 legal proceedings may be set out, it shall not be necessary to specify that 
 any particular persons who acted as jurors had made affirmation instead of 
 oath, but it may be stated that they served as jurymen, in the same manner 
 as if no act had passed for enabling persons to serve as jurymen without 
 oath. 
 
 III. And be it enacted, That nothing in this act shall apply to or affect 
 any suit, action, or proceeding brought or commenced before the passing of 
 this act. 
 
 IV. And be it enacted, That nothing in this act shall extend to Scotland. 
 
 Statute 14 & 15 VICT. Cap. XCIX. 
 
 An Act to amend the Law of Evidence. 
 
 [7th August, 1851.] 
 
 " WIIEREAS it is expedient to amend the law of evidence in divers par- 
 ticulars;" Be it therefore enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the authority of the 
 same, as follows : 
 
 I. So much of sect. 1 of the act of the sixth and seventh years of her 
 present Majesty, chap. 85, as provides that the said act shall " not render 
 competent any party to any suit, action, or proceeding individually named
 
 APPENDIX. 882 
 
 in the record, or any lessor of the plaintiff, or tenant of premises sought to 
 be recovered in ejectment, or the landlord or other person in whose right 
 any defendant in replevin may make cognizance, or any person in whose 
 immediate and individual behalf any action may be brought or defended, 
 either wholly or in part," is hereby repealed. 
 
 II. Ou the trial of any issue joined, or of any matter or question, or on 
 any inquiry arising in any suit, action, or other proceeding in any court 
 of justice, or before any person having by law or by consent of parties, 
 ^authority to hear, receive, and examine evidence, the parties thereto 
 
 and the persons in whose behalf any such suit, action, or other pro- '- -^ 
 ceeding may be brought or defended, shall, except as hereinafter excepted be 
 competent and compellable to give evidence, either viva voce or by deposi- 
 tion, according to the practice of the court, on behalf of either or any of 
 the parties to the said suit, action, or other proceeding. 
 
 III. But nothing herein contained shall render any person who in any 
 criminal proceeding is charged with the commission of any indictable oflPence, 
 or any offence punishable on summary conviction, competent or compellable 
 to give evidence for or against himself or herself, or shall render any person 
 compellable to answer any question tending to criminate himself or herself, or 
 shall in any criminal proceeding render any husband competent or compel- 
 lable to give evidence for or against his wife, or any wife competent or com- 
 pellable to give evidence for or against her husband. 
 
 IV. Nothing herein contained shall apply to any action, suit, proceeding, 
 or bill in any court of common law, or in any ecclesiastical court, or in either 
 house of parliament, instituted in consequence of adultery, or to any action 
 for breach of promise of marriage. 
 
 V. Nothing herein contained shall repeal any provision contained in chap- 
 ter twenty-six of the statute passed in the session of parliament holden in 
 the seventh year of the reign of King William the Fourth and the first year 
 of the reign of her present Majesty. 
 
 VI. Whenever any action or other legal proceeding shall henceforth be 
 pending in any of the superior courts of common law at Westminster or Dub- 
 lin, or the court of common pleas for the county palatine of Lancaster, or 
 the court of pleas for the county of Durham, such court and each of the 
 judges thereof may respectively, on application made for such purposes by 
 either of the litigants, compel the opposite party to allow the party making 
 the application to inspect all documents in the custody or under the control 
 of such opposite party relating to such action or other legal proceeding, and, 
 if necessary, to take examined copies of the same, or to procure the same to
 
 883 
 
 APPENDIX. 
 
 be duly stamped, iu all cases in which previous to the passing of this act a 
 discovery might have been obtained by filing a bill or by any other proceed- 
 ing in a court of equity at the instance of the party so making application 
 as aforesaid to the said court or judge. 
 
 VII. All proclamations, treaties, and other acts of state of any foreign 
 state or of any British colony, and all judgments, decrees, orders, and other 
 judicial proceedings of any court of justice in any foreign state or in any 
 British colony, and all affidavits, pleadings, and other legal documents filed 
 or deposited in any such court, may be proved in any court of justice, or 
 before any person having by law or by consent of parties authority to hear, 
 receive, and examine evidence, either by examined copies, or by copies 
 authenticated as hereinafter mentioned ; that is to say, if the document 
 sought to be proved be a proclamation, treaty, or other act of state, the au- 
 thenticated copy to be admissible in evidence must purport to be sealed with 
 the seal of the foreign state or British colony to which the original document 
 r*8fi41 ^^^o'^g^? ^^^ if ^^^ *document sought to be proved be a judgment, 
 
 decree, or other judicial proceeding of any foreign or colonial court, 
 or an affidavit, pleading, or other legal document filed or deposited in any 
 such court, the authenticated copy to be admissible in evidence must purport 
 either to be sealed with the seal of the foreign or colonial court to which the 
 original document belongs, or, in the event of such court having no seal, to 
 be signed by the judge, or, if there be more than one judge, by any one of 
 the judges of the said court, and such judge shall attach to his signature a 
 statement in writing on the said copy that the court whereof he is a judge 
 has no seal ; but if any of the aforesaid authenticated copies shall purport to 
 be sealed or signed as hereinbefore respectively directed, the same shall re- 
 spectively be admitted in evidence in every case in which the original docu- 
 ment could have been received in evidence, without any proof of the seal 
 where a seal is necessary, or of the signature or of the truth of the statement 
 attached thereto, where such signature and statement are necessary, or of the 
 judicial character of the person appearing to have made such signature and 
 statement. 
 
 VIII. Every certificate of the qualification of an apothecary which shall 
 purport to be under the common seal of the society of the art and mystery of 
 apothecaries of the city of London, shall be received in evidence in any court 
 of justice, and before any person having by law or consent of parties authority 
 to hear, receive, and examine evidence, without any proof of tho said seal or 
 of the authenticity of the said certificate, and shall be deemed sufficient 
 proof that the person named therein has been from the date of the said 
 certificate duly qualified to practice as an apothecary in any part of England 
 or Wales.
 
 APPENDIX. 884 
 
 IX. Every document which by any law now in force or hereafter to be in 
 force is or shall be aduiissible in evidence of any particular in any court of 
 justicfe in England or Wales without proof of the seal or stamp or signature 
 authenticating the same, or of the judicial or official character of the person 
 appearing to have signed the same, shall be admitted in evidence to the same 
 extent and for the same purposes in any court of justice in Ireland, or before 
 any person having in Ireland by law or by consent of parties, authority to 
 hear, receive, and exaniiue evidence, without proof of the seal or stump or 
 signature authenticating the same, or of the judicial or official character of 
 the person appearing to have signed the same. 
 
 X. Every document which by any law now in force or hereafter to be in 
 
 , force is or shall be admissible in evidence of any particular in any court of 
 justice in Ireland without proof of the seal or stamp or signature authenti- 
 cating the same, or of the judicial or official character of the person appear- 
 ing to have signed the same, shall be admitted in evidence to the same 
 extent and for the same purposes in any court of justice in England or 
 Wales, or before any person having in England or Wales by law or by con- 
 sent of parties authority to hear, receive, and examine evidence, without 
 proof of the seal or stamp or signature authenticating the same, or of the 
 judicial or official character of the person appearing to have signed the 
 same. 
 
 XI. Every document by which any law now in force or hereafter to be in 
 
 force is or shall be admissible in evidence of any particular in any court of 
 
 *iustice in Enjjland or Wales or Ireland without proof of the seal or 
 
 . . r*885T 
 
 stamp or signature authenticating the same, or of the judicial or •- -• 
 
 official character of the person appearing to have signed the same, shall be 
 admitted in evidence to the same extent and for the same purposes in any 
 court of justice of any of the British colonies, or before any person having 
 in any of such colonies by law or by consent of parties authority to hear, 
 receive, and examine evidence, without proof of the seal or stamp, or signa- 
 ture authenticating the same, or of the judicial or official character of the 
 person appearing to have signed the same. 
 
 XII. Every register of a vessel kept under any of the acts relating to the 
 registry of British vessels may be proved in any court of justice, or before 
 any person having by law or by consent of parties authority to hear, receive, 
 and examine evidence, either by the production of the original or by an 
 examined copy thereof, or by a copy thereof purporting to be certified under 
 the hand of the person having the charge of the original, and which person 
 is hereby required to furnish such certified copy to any person applying at 
 a reasonable time for the same, upon payment of the sum of one shilling ; 
 and every such register or such copy of a register, and also every certificate
 
 »85 APPENDIX. 
 
 of registry, granted under any of the acts relating to the registry of British 
 vessels, and purporting to be signed as required by law, shall be received in 
 evidence in any court of justice, or before any person having by law or by 
 consent of parties, authority to hear, receive, and examine evidence, as ■primO, 
 facie proof of all the matters contained or recited in such register when the 
 register or such copy thereof as aforesaid is produced, and of all the matters 
 contained or recited in or endorsed on such certificate of registry when the 
 said certificate is produced. 
 
 XITI. And whereas it is expedient, as far as possible, to reduce the ex- 
 pense attendant upon the proof of criminal proceedings ; Be it enacted, 
 That whenever in any proceeding whatever it may be necessary to prove the 
 trial and conviction or acquittal of any person charged with any indictable 
 oflPence, it shall not be necessary to produce the record of the conviction or 
 acquittal of such person, or a copy thereof, but it shall be sufl&cient that it 
 be certified or purport to be certified under the hand of the clerk of the 
 court or other officer having the custody of the records of the court where 
 such conviction or acquittal took place, or by the deputy of such clerk or 
 other officer, that the paper produced is a copy of the record of the indict- 
 ment, trial, conviction, and judgment or acquittal, as the case may be, 
 omitting the formal parts thereof. 
 
 XIV. Whenever any book or other document is of such a public nature 
 as to be admissible in evidence on its mere production from the proper cus- 
 tody, and no statute exists which renders its contents provable by means of 
 a copy, any copy thereof or extract therefrom shall be admissible in evidence 
 in any court of justice, or before any person now or hereafter having by law 
 or by consent of parties authority to hear, receive and examine evidence ; 
 provided it be proved to be an examined copy or extract, or provided it pur- 
 port to be signed and certified as a true copy or extract by the officer to 
 whose custody the original is entrusted, and which officer is hereby required 
 
 to furnish such *certified copy or extract to any person applying at 
 L -la reasonable time for the same, upon payment of a reasonable sum 
 for the same, not exceeding four pence for every folio of ninety words. 
 
 XV. If any officer authorized or required by this act to furnish any certi- 
 fied copies or extracts, shall wilfully certify any document as being a true 
 copy or extract, knowing that the same is not a true copy or extract, as the 
 case may be, he shall be guilty of a misdemeanor, and be liable, upon con- 
 viction, to imprisonment for any term not exceeding eighteen months. 
 
 XVI. Every court, judge, justice, officer, commissioner, arbitrator, or 
 other person, now or hereafter having by law or by consent of parties
 
 APPENDIX. 886 
 
 authority to hear, receive, and examine evidence, is hereby empowered to 
 administer an oath to all such witnesses as are legally called before them 
 respectively. 
 
 XVII. If any person shall forge the seal, stamp or signature of any docu- 
 ment in this act mentioned or referred to, or shall tender in evidence any 
 such document with a false or counterfeit seal, stamp, or signature thereto, 
 knowing the same to be ftilse or counterfeit, he shall be guilty of felony and 
 shall upon conviction be liable to transportation for seven years, or to im- 
 prisonment for any term not exceeding three years nor less than one year, 
 with hard labor ; and whenever any such document shall have been admitted 
 in evidence by virtue of this act, the court or the person who shall have ad- 
 mitted the same may, at the request of any party against whom the same is 
 so admitted in evidence, direct that the same shall be impounded and be 
 kept in the custody of some officer of the court, or other proper person, for 
 such period and subject to such conditions as to the said court or person 
 shall seem meet; and every person who shall be charged with committing 
 any felony under this act or under the act of the eighth and ninth years of 
 her present Majesty, chapter one hundred and thirteen, may be dealt with, 
 indicted, tried, and, if convicted, sentenced, and his offence may be laid and 
 charged to have been committed, in the county, district, or place in which 
 he shall be apprehended or be in custody ; and every accessory before or 
 after the fact to any such offence may be dealt with, indicted, tried, and, if 
 convicted, sentenced, and his offence laid and charged to have been com- 
 mitted, in any county, district or place in which the principal offender may 
 be tried. 
 
 XVIII. This act shall not extend to Scotland. 
 
 XIX. The words " British colony," as used in this act, shall apply to all 
 the British territories under the government of the East India Company, 
 and to the islands of Guernsey, Jersey, Alderney, Sark, and Man, and to 
 all other possessions of the British crown, wheresoever, and whatsoever. 
 
 XX. This act shall come into operation on the first day of November in 
 the present year.
 
 887 APPENDIX. 
 
 [*887] *Statute 15 & 16 VICT. Cap. LXXVI. 
 
 CXVII. Either party may call ou the other party by notice to admit any 
 document, saving all just exceptions; and in case of refusal or neglect to 
 admit, the costs of proving the document shall be paid by the party so neg- 
 lecting or refusing, whatever the result of the cause may be, unless at the 
 trial the judge shall certify that the refusal to admit was reasonable; and no 
 cost of proving any document shall be allowed unless such notice be given, 
 except in cases where the omission to give the notice is in the opinion of the 
 Master a saving of expense. 
 
 CXVIII. An affidavit of the attorney in the cause, or his clerk, of the 
 due signature of any admission made in pursuance of such notice, and 
 annexed to the affidavit, shall be in all cases sufficient evidence of such 
 admissions. 
 
 CXIX. An affidavit of the attorney in the cause, or his clerk, of the 
 service of any notice to produce, in respect of which notice to admit shall 
 have been given, and of the time when it was served, with a copy of such 
 notice to produce annexed to such affidavit, shall be sufficient evidence of 
 the service of the original of such notice, and of the time when it was 
 served. 
 
 CCXXII. It shall be lawful for the superior courts of common law, and 
 every judge thereof, and any judge sitting at Nisi Prius, at all times to 
 amend all defects and errors in any proceeding in civil causes, whether there 
 is anything in writing to amend by or not, and whether the defect or error 
 be that of the party applying to amend or not ; and all such amendments 
 may be made with or without costs, and upon such terms as to the court or 
 judge may seem fit, and all such amendments as may be necessary for the 
 purpose of determining in the existing suit the real question in controversy 
 between the parties shall be so made.
 
 INDEX. 
 
 ABBEY, 
 
 books and chartularies of, proper custody of, 528. 
 
 what and when evidence, 546, 549. 
 ABSENCE, 
 
 of witness, procedure in case of, 109. 
 
 of attesting witness, 512-521. And see Attesting Witness. 
 ACCEPTANCE, 
 
 of what evidence, 623. See tit. Bill of Exchange. 
 ACCESSORY, 
 
 may controvert guilt of principal, 367, 385. 
 record of conviction of principal, not conclusive against, 726. 
 ACCOMPLICE, 
 
 evidence of, admissible, 128, n. 
 
 but not if included in indictment and trial, ib. 
 requires confirmation, 821. 
 ACQUITTAL, 
 
 upon an indictment not evidence in civil action, 361. 
 
 seldom conclusive that defendant had not committed an injury for which he 
 
 would be responsible in civil action, ib. 
 by court-martial does not preclude defendant in an action justifying the arrest, 
 363. 
 
 ACTS, 
 
 declaration accompanying, frequently admissible, 51. 
 but the act itself must be material and admissible, 52. 
 of strangers not admissible, 82. 
 of party always evidence against him, 85. 
 evidence of nature of, by accompanying declaration, 466. 
 motives and intentions may be inferred from, 849. 
 rational agent must be taken to contemplate consequences of, ib. 
 ACTS OF PARLIAMENT, 
 
 are records of the highest and most absolute proof, 273. 
 
 are either public or private, 274. 
 
 public, require no proof, ib. 
 
 private, must be proved, 276. 
 
 mode of proof, ib, 
 
 Stat. 13 & 14 Vict. c. 21, 277. 
 
 all, to be deemed public and judicially noticed, unless the contrary be declared, 
 
 278. 
 recitals of facts in public acts evidence of such facts, 278. 
 
 but not generally so in private acts, ib. 
 ACTS OF STATE, 
 
 may be proved by official document, 279. 
 
 or by the Gazette, ib. 
 
 or by printed proclamations, ib. 
 foreign, may be proved by examined copies, 281. 
 
 or under the seal of the country, ib. 
 colonial, how proved, ib. 
 commercial regulations may be proved by copies, ib. 
 
 51
 
 890 INDEX. 
 
 ADJUDICATION, 
 
 evidence between parties, upon proof of identity of the parties, 324. 
 
 identity of the fact, 333. 
 that it was direct, 337. 
 that it is applicable, 341. 
 
 ADMINISTRATION, 
 
 letters of, conclusive only on the point directly involved, 339. 
 
 but not on collateral matters, as death, kc, ib. 
 refusal of, not evidence to disprove marriage, ib. 
 proof of, 393. 
 
 certificate of, by Ecclesiastical Court, is evidence of, 394. 
 also, order book, ib. 
 also, act book, or examined copy of, ib. 
 
 ADMINISTRATOR, 
 
 failing in action, not estopped from suing as executor, 337. 
 
 ADMIRALTY, 
 
 official letter to, admissibility of, 305. 
 muster roll of a ship from, when evidence, ib. 
 decision of court of, effect of, 380, 392. 
 
 must stand till reversed, 401. 
 
 ADMISSIONS, 
 
 general principle as to, 50. 
 
 party bound by, against his interest, ib. 
 
 in pleadings, 449. 
 
 in one court, not evidence in another, 450. 
 
 in pleadings, not to be taken as confessions, ib. 
 
 except where material facts are traversed and found, 451, 639. 
 
 a demurrer is onlv an admission of facts well pleaded, ib. 
 
 under R. G. Hil. T. 4 Will. 4, 571. 
 
 consent of parties supersedes necessitj' of proof, 573. 
 
 as to one of several issues, does not operate as to others, 640. 
 
 verbal, by part)^ as to contents of writing admissible, 505. 
 
 admission under seal when conclusive, 459, 577. 
 
 in bill in equity not evidence as to facts stated in it, 439. 
 
 in answer in Chancery is evidence against party making it, 441. 
 
 but not against others without privity of interest, ib. 
 
 in answer by guardian is not admissible against ward, 442. See tit. Declara- 
 tions — Entries. 
 ADVERSARY, 
 
 proof of document when in possession of, 550-571. 
 
 notice to produce such must be given, 551. 
 
 except where party must know he is charged with possession, 5G1. 
 
 after notice, document cannot be got rid of, 553. 
 
 possession by one in privity with, is possession of adversary, ib. 
 
 when document produced, it must be proved in usual way, 565. 
 
 if not produced, proof must be given as in case of loss, 569. 
 
 but slighter evidence is sufficient, ib. 
 AFFIDAVIT, 
 
 when it may be proved by examined copy, 166, «., 449. 
 
 voluntary, not admissible, 34, 448. 
 except against maker, ib. 448. 
 
 when original must be produced, 2G6. 
 
 filed or deposited in any foreign or colonial court may be proved by copy 
 under seal of the court, 399. 
 AFFIRMATION, 
 
 by certain religious sects allowed, 32. See also tit. Moravian — Quaker. 
 
 AFFIRMATIVE, 
 
 proof of, lies on party alleging, 587. 
 
 sometimes presumed by law, 591. Sec tit. Onvs Probandi. 
 
 AGE, 
 
 prcsumiitioii of law arising from, 521, 522, n. 
 not proved by baptismal register, 299.
 
 INDEX. 891 
 
 AGENT, 
 
 entries by, admissible in certain cases, 479. 
 
 rational, must be taken to contemplate consequences, of his acts, 849. See tit. 
 
 Declaration — Entries — Interest. 
 AGREEMENT, 
 
 when reduced to writing, writing only evidence of, 655. 
 
 sense of written, not to be altered by parol evidence, 463. See tit. Contrctcl — 
 
 Parol Evidence — Writle7i Instruments. 
 
 ALMANAC, 
 
 judicially noticed by the courts, 738. 
 ALTERATION, 
 
 in instrument should be explained by party producing it, 500. 
 
 proof may be given of, how occasioned, 501. 
 AMBIGUITY, 
 
 distinction between latent and patent, 652. 
 
 latent, may be removed by parol evidence, ib. 
 
 patent, cannot be so removed, 653. 
 
 AMENDMENT, 
 
 statutes relating to, 633, 634, 637, App. 
 decisions upon, ib. See tit. Variance. 
 ANCIENT FACTS, 
 
 may be proved by evidence of reputation and tradition, 46. 
 supported by proof of enjoyment and acquiescence, ib. 
 
 ANCIENT INSTRUMENTS, 
 
 admissible in evidence, 93, 523. 
 upon proof of antiquity, ib. 
 
 of coming from proper repository, ib. 291, 524, 
 
 of freedom from suspicion, ib. 
 
 of consistent acts of enjoyment, ib. 
 counterparts of old leases when admissible, 94. 
 licenses, ib. 
 
 surveys under authority, 284. 
 ecclesiastical terriers, 290. 
 deeds, maps, &c., 473. 
 
 ANSWER IN CHANCERY, ' 
 
 is evidence against the party making it, 441. 
 
 or one claiming under him, 443. 
 
 but not against others, i^. 
 when read, the whole is evidence, 444. 
 
 except where the object is to show that the witness was incompetent, ib. 
 is proved by production of the bill and answer, 447. 
 
 or admitted or examined copies, ib. 
 correspondence of names, &c., of parties is prima facie evidence of identity of 
 
 equity, 447. 
 but not at common law or in criminal proceedings, 448. 
 
 APPEAL, 
 
 further evid-ence admissible on, 254. 
 
 except legislative provision to the contrary, ib. 
 at sessions, ©rder of procedure on, 595. 
 
 APPRENTICE, 
 
 proof of search for indentures of, 531, 536. 
 
 ARBITRATION, 
 
 court may direct attendance of witnesses at, 103. 
 
 and such witnesses are protected from arrest, 113. 
 award conclusive of subject-matter, 398. 
 
 but must be proved to have been duly made, 399. See tit. Award. 
 
 ARMORIAL BEARINGS, 
 
 are evidence on questions of pedigree, 312. 
 
 upon proof by office of Heralds' College, ib.
 
 892 ■ INDEX. 
 
 ARREST, 
 
 protection of witnesses from, 113. 
 
 except on criminal process, 114. 
 
 or by their bail, ib. 
 ARTIFICIAL EVIDENCE, 
 
 provided by the law for general conyenience, 96. 
 
 records, grants, agreements, &c., 97. 
 
 and artificial effects annexed to them, 98. 
 
 also manner and form prescribed, ib. 
 estoppels, doctrine of, ib. 
 presumptions, 100, 742. 
 
 ATHEIST, 
 
 incompetent as a witness, 30. 
 ATTACHMENT, 
 
 witness liable to, for non-attendance upon subpoena, 103. 
 ATTESTING WITNESS, 
 
 one at least must be called to prove attested instrument, 503. 
 principle of the rule, 504. 
 
 testimony of, not conclusive, 510. 
 
 proof upon denial by, ib. 
 
 character of, may be confirmed, 512. 
 
 if absent, absence of, must be satisfactorily accounted for, ib. 
 
 proof in excuse of absence of, 514. 
 
 absence of, being satisfactorily accounted for, secondary proof, may be given, 
 519. 
 
 eflfect of declarations by deceased, 512. 
 
 proof where no attesting witness, 529. 
 
 by persons present, or by proof of handwriting or acknowledgment, ib. 
 
 ATTORNEY, 
 
 not allowed to reveal communication by client, 40, 194. 
 nor to produce client's title deeds, 112. 
 
 debt book of deceased, admissibility of, 474. 
 
 entries by clerk of, in course of business, 495. 
 AUTRE FOIS ACQUIT, 
 
 when pleaded, record may be removed, by certiorari, and how, 257. 
 how proved by certified copy, 391, App. 
 AVERMENT, 
 
 by whom to be proved, 585. 
 
 substantial proof of, sufficient in general, 624. See tit. Onus Probandi — Variance. 
 AWARD, 
 
 conclusive of subject-matter, 349, 398. 
 if proved to have been duly made, ib. 
 BAILIFF, 
 
 entries by deceased, admissibility of, 479, 481. 
 BANK OF ENGLAND, 
 
 transfer book of, may be proved by sworn copy, 269. 
 BANK NOTE, 
 
 duly filed, may be proved by sworn copy, 269. 
 BANKER, 
 
 lodger of, admissible to show customer had no funds, 464, 
 BANKRUPT, 
 
 not to be sworn on examination before commissioners, 34. 
 nor his wife, ib. 
 
 declarations by, admissibility of, 4G7. 
 BANKRUPTCY, 
 
 jiower of court of, to compel attendance of witnesses and production of docu- 
 ments, 108, 110. 
 
 proof of proceedings in, 2(;4. 
 
 notices in Gazette sufficient, 280. 
 
 depositions in, conclusive in what cases, 418.
 
 INDEX. • 893 
 
 BAPTISM, 
 
 statement ia register of, inadmissible to prove age, 254, 299. 
 
 public registers of, admissible, 296. 
 
 statutes relating to registers of, ib. n. 
 
 register of, no proof of identity, 299. 
 
 not provable by register of foreign chapel, 300. 
 
 registers of, made evidence by 3 & 4 Vict. c. 92, 301. See tit. Registers. 
 
 BARGAIN AND SALE, 
 
 copy of enrolment of, admissible, 576. 
 
 BASTARDY, 
 
 admissibility of entries respecting, in parish register, 298, 299. 
 judgment in, effect of, 371. 
 
 BEGIN, 
 
 right to, on trial of action, 595, 605. 
 
 BELIEF, 
 
 examination of witnesses as to religious, 171. 
 
 founded on facts within knowledge of witness admissible, 173. 
 
 BEST EVIDENCE, 
 
 rule that the best attainable evidence must be produced, 641. 
 
 rule comparative, and relates to quality of evidence, not to quantity, 643. 
 
 does not apply, unless the evidence proposed be of inferior degree, 644. 
 
 nor exclude, unless superior evidence fails, ib. 
 
 or is unattainable, 645. 
 
 or a mere negative is to be proved, ib. 
 
 or where no presumption of fraud arises, 646. 
 
 or in case of admissions, 648. 
 but excludes oral evidence respecting written instruments, ib. 
 
 except to defeat it on ground of fraud or mistake, ib. 
 
 or to apply it to proper subject matter, ib. 
 
 or to explain foreign, local, or technical terms, 649. 
 
 or to rebut extrinsic presumptions, ib. 
 
 BIBLE, 
 
 entries in family, how far admissible in pedigree, 45, 
 
 BILL IN CHANCERY, 
 
 not in evidence as to facts alleged in it, 439. 
 
 BILL OF EXCEPTIONS, 
 
 may be tendered where party dissatisfied with ruling of the court, 790. 
 
 provision for, by stat. 13 Edw. I., c. 31, 791. 
 
 should be tendered at the trial, 793. 
 
 form of, 794. 
 
 course of procedure upon, 795. 
 
 BILL OF EXCHANGE, 
 
 notice of dishonor of, why evidence, 95. 
 
 acceptance of, in payment of goods sold, evidence of fact of sale, 622. 
 
 where evidence that acceptor knew payee to be a fictitious per- 
 son, 623. 
 and that endorsee had general authority to fill up bills in name 
 of fictitious payee, ib. 
 a collection of forged, not evidence in trial for forgery, unless the bill in ques- 
 tion proved to be part of the collection, ib. 
 
 BILL TO PERPETUATE TESTIMONY, 
 in what cases it lies, 427. 
 
 Stat. 5 & 6 Vict. c. 69, provisions as to, 428. 
 
 BIRTH, 
 
 registry of, evidence by, 297. 
 
 entry of, in midwife's books, when evidence, 65, 475. 
 
 place of, not proved by register of baptism, 289. 
 
 unless added to it, under the registration act, ib. n.
 
 894 INDEX. 
 
 BISHOP, 
 
 endowment by, when evidence, 294. 
 register of, evidence as to custom, 309. 
 
 and of exercise of rigiit to collate, ib. 
 
 extracts from evidence as to appointment of parish officers, 11. 
 
 books of, 309, n. 
 
 BOOKS, EVIDENCE BY, 
 of public history, 97. 
 of parish, 303. 
 of navy office, 305. 
 of ships, ib., 310. 
 log, of man-of-war, ib. 
 of excise and customs, 295, 306. 
 of public companies, 307, 452, 456. 
 of Queen's Bench and Fleet Prisons, 308. 
 of auditor of bishop, 283. 
 of chapter clerk, ib. 
 of bishop, 309, n. 
 poll of elections, ib. 
 of corporations, 309, 452, 455. 
 of Queen's Bench office. 309. 
 kept by order of chancellor, 310. 
 of the clerk of the peace, ib. 
 of Heralds' office, 311. 
 of shop-keeper, 493. 
 
 BOUNDARY, 
 
 evidence of, by reputation, 47, 49, 63. 
 perambulations evidence of, 50. 
 
 BULL, PAPAL, 
 
 admissibility of, 294. 
 
 BURIAL, 
 
 public register of, proof by, 297. 
 
 BUSINESS, 
 
 entries and declarations made in the course of, admissibility of, 65, 86, 465, 
 487, 492. See tit. Declarations — Entries. 
 CALENDAR, 
 
 judicially noticed by the courts, 738. 
 
 CASE, 
 
 for counsel's opinion, recital of facts in, when admissible, 550. 
 special, sufficient if court can infer the facts from it, 765. 
 
 CAUSE OF ACTION, 
 
 plaintiff may recover on, not stated by counsel, 615. 
 
 CAUSE PROBABLE, 
 
 when a question of law, 781. 
 when of fact, ib. 
 CERTAINTY, 
 
 degrees of, attainable, 53. 
 CERTIFICATE, 
 
 admissibility of, when made by persons in authority, 294. 
 of indictments, convictions, and acquittals, 295 «., 391. 
 also copies by officers of court, 295, 391, 398. 
 without proof of seal, stamp, or signature, 296, 391. 
 stats. 8 <fe 9 Vict. c. 113, 14 & 15 Vict. c. 99, s. 13, t6. 
 of returns to Parliament under 7 & 8 Will. III. 295. 
 of local customs, effect of, 736. 
 
 CERTIORAill, 
 
 removal of a record by, 257. 
 CHALLENGE, 
 
 of a juror, 209.
 
 INDEX. 895 
 
 CHANCERY, 
 
 bill in, not evidence as to facts alleged, 439. 
 answer in, evidence as admission against party making it, 440. 
 depositions in, admissibility of, 428, 432. 
 preparatory proofs necessary, 430. 
 
 CHAPELS, 
 
 public registers of, admissibility of, 301. 
 
 CHARACTER, 
 
 presumption from, in criminal cases, 75. 
 
 witnesses to, not usuallj- cross-examined, 197. 
 
 of witness, how impeached, 230. 
 
 by general evidence only, 237. 
 
 inquiry necessary previous to impeaching, 238. 
 
 where it is relevant to the issue, 241. 
 
 as in action for seduction, ih. 
 cannot be impeached by party calling, 244. 
 when impeached, may be supported, 252. See tit. Cross-examination — Witness. 
 
 CHARGES, 
 
 to juries, observations on, 810. 
 
 CHARTER, 
 
 ancient, may be explained by extrinsic evidence, 695. 
 
 CHARTULARY, 
 
 of abbey, proper custody of, 528. 
 
 of what, and when evidence, 546, 549. 
 
 CHILD, 
 
 cannot give evidence unless sworn, 30, 33. 
 
 may be examined by the court as to competency as a witness, 117. 
 
 trial in criminal cases may be postponed to instruct in nature of an oath, ib. 
 
 dying declarations of, when admissible, 32, n. 
 CHIROGRAPH, 
 
 of fine admissible, 294. 
 
 CHRONICLES, 
 
 of history, not admisible to prove particular facts, 314. 
 
 but admissible to prove matters relating to the kingdom at large, ib. 
 See tit. History. 
 
 CIRCUMSTANCES, 
 
 when conflicting, mode of inquiry, 877, 879. 
 
 rejection of, when inconsistent with established facts, 878. 
 
 frauds in, kinds of, ib. 
 
 CIRCUMSTANTIAL EVIDENCE, 
 grounds of, 77, 841. 
 to what extent admissible, 81. 
 ought not to supersede direct, 866. 
 comparison of, with direct, 875. 
 distinction of, from a mere presumption, 839. 
 caution respecting the use of, 840. 
 relations between cause and effect, 841. 
 force of, 842. 
 
 force of probability derived from many independent proofs, 853. 
 presumption from omission to produce evidence, 8^6, 846. 
 
 from substitution of weaker for stronger evidence, 846. 
 
 from spoliation, 847. 
 connection between conduct and intention, 849, 851. 
 from ordinary experience, 850. 
 
 from absence of evidence to support other hypothesis, 851. 
 from coincidence of many inconclusive circumstances, 852. 
 different kinds of coincidences, 844. 
 independent and dependent circumstances, 851. 
 essentials to circumstantial proofs, 856.
 
 896 INDEX. 
 
 CIRCUMSTANTIAL EVIDENCE.— Con^mwerf. 
 established of the facts, 856. 
 consistency of facts with hypothesis, 859. 
 conclusive tendency of circumstances, ib. 
 circumstances should exclude every other hypothesis, 862. 
 where, leaves it indifferent which of two hypotheses it proves insuflBcient, 
 
 860. 
 when mere coincidences sufficient, 861. 
 test of the conclusive tendency of evidence, ib. 
 inconclusive circumstances, when rendered conclusive, 862. 
 corpus delicti must be fully proved, ib. 
 inquiry as to other hypotheses, 863. 
 conclusiveness of circumstances to be judged of by jury, ib. 
 
 CLERGYMAN, 
 
 not privileged to withhold confidential communication, 40. 
 
 CLERK, 
 
 of counsel or attorney, communication made to, privileged, 40. 
 
 of banker, 464, w., 481. 
 
 of attorney, admissibility of entries by, in the course of business, 495. 
 
 CLERK OF THE PEACE, 
 
 books of, admissibility of, 310. 
 
 CLIENT, 
 
 privilege of, as to professional communications, 40. 
 COACH, 
 
 entry of, at license office, no proof of ownership, 311. 
 
 COINCIDENCES. See Circumstantial Evidence. 
 force of, 842. 
 moral effect of, 845. 
 effect of, from ordinary experience, 850. 
 
 COLLATERAL FACTS, 
 
 admissibility of, 67, 81, 91. 
 
 when admissible, 80, 90, 618. 
 
 instances of, 618, 623. 
 
 cross-examination as to, 200. 
 COLLUSION, 
 
 judgment may be avoided by, 402. 
 
 COLONIAL ACTS OF STATE, 
 
 proved by copy under colonial seal, 281. 
 COLONIAL COURT, 
 
 judgment in, effect of, 346. 
 proof of, 399. 
 
 affidavits filed in, proof of, ib. 
 
 seal of, need not be proved, ib. 
 COMMERCIAL REGULATIONS, 
 
 of foreign countries, provable by copy, 281. 
 COMMISSION, 
 
 inquisitions under public, admissible, 287. 
 
 COMMISSIONERS, 
 
 books of, admissibility of, 313. 
 
 condemnation by, effect of, 379. . 
 COMMON, RIGHT OF, 
 
 reputation admissible to prove right of, 48, 187. 
 
 but not in the case of a private prescription, ib. 
 COMMONS, HOUSE OF, 
 
 journals of, evidence of proceedings by, 281. 
 
 coi)ies of journals of, by tlie Queen's printer, &c., admissible, 282. 
 COMMUNICATIONS PRIVILEGED, 
 
 rule respecting, 40, 193.
 
 INDEX. 897 
 
 COMPETENCY OF WITNESSES, 
 
 time and mode of objecting to, 114. 
 
 examination as to religious belief, 115. 
 
 in case of infancy, 117. See also tit. Infancy — Interest. 
 
 CONCURRENCE, 
 
 of circumstances, effect of, 853. 
 
 CONDEMNATION, 
 
 in the Exchequer conclusive on all parties, 378. 
 
 by commissioners of excise, final, 379. 
 
 by foreign Court of Admiralty, conclusive as to facts stated, 381, 
 
 CONDUCT, 
 
 connection between conduct and motives, 849. 
 presumption from, 71, 75. 
 
 CONFESSION, 
 
 is but presumptive evidence, 73. 
 
 not conclusive, ib. 718. 
 in criminal case is evidence in civil action, 362. 
 
 CONFIDENTIAL COMMUNICATIONS, 
 rule respecting, 40, 193. 
 
 extends to counsel, and attorneys, and their clerks, ib. 
 but not to physicians, surgeons, or divines, ib. 
 includes matters of state policy, 193. 
 and proceedings before grand jury, ib. 
 
 CONFIRMATION, 
 
 of witnesses, when allowed, 252. 
 
 of evidence of accomplice necessary, 821. 
 
 CONFLICTING EVIDENCE, 
 
 observations on, 866, 869. 
 
 CONSIDERATION, 
 
 variance from allegation of, in deed, 659. 
 
 cannot be shown to be different from that expressed, 673. 
 
 additional, may be shown, 673. 
 
 CONSISTENCY, 
 
 of testimony, effect of, 859. 
 
 with circumstances, 871, 877. 
 with written documents, 872. 
 
 CONSTRUCTION, 
 
 of written document is matter of law, 786. 
 
 not to be varied by extrinsic evidence, 668. 
 CONTINUANCE, 
 
 presumption of, 76, 760. 
 CONTRACT, 
 
 right to begin in actions on, 599. 
 
 variation from terms of, 630. 
 
 written, not to be varied by parol evidence, 651, 655. See tit. Parol Eindence. 
 
 CONTRADICTION, 
 
 witness must be questioned previous to contradiction, 238, 242. 
 
 by evidence of previous statements, ib. 
 of his own acts, 238. 
 
 of party's own witness not allowed, 244. 
 exceptions, 244-251. 
 CONVENTIONAL EVIDENCE, 
 
 what, 98. 
 CONVERSATIONS, 
 
 evidence of, should be received with great caution, 826. 
 CONVICTION, 
 
 in criminal cases, not evidence in civil action, 361.
 
 INDEX. 
 
 COiiYlCTlO}^.— Continued. 
 
 except of fact, and legal consequences, ib. 
 
 so of inferior courts, 368. 
 of infamous crime no longer incapacitates witness, 117. 
 certificates of, 295, n., 391. 
 in rem is evidence, 379. 
 COPY, 
 
 of public documents, when admissible in evidence, 257. 
 of public records, 257, 315. 
 
 exemplifications, 257. 
 
 by authorized officer, 261. 
 
 office copy, ib. 
 
 statutory office copy, ib., 265. 
 
 sworn copy, 265-271. 
 of a copy, not admissible, 270. 
 how proved, ib. 
 
 not admissible when original produced, 271. 
 of lost record, proof of, ib. 
 evidence to warrant reception of, ib. 
 
 certified copy, effect of, 398. See tit. Instruments of Evidence. 
 COPY EXAMINED, 
 
 of public document generally admissible, 268, 270, 273. 
 to prove judicial proceedings, 265. 
 
 in bankruptcy, 266. 
 
 in Chancery, ib. 
 
 but is not admissible on indictment for perjury, ib. 
 
 or where the record is incomplete, 267. 
 how proved, 270, 550. 
 of Acts of Parliament, 276. 
 CORONER, 
 
 depositions before, not admissible, unless taken in presence of prisoner, 38. 
 has power to bind over witnesses, 105. 
 inquisition by, effect of, 405. 
 CORPORATION, 
 
 seal of, proved by showing that it is the official seal, 457. 
 deed of, proved by proving official seal, 510. 
 books of, admissibility of, 309, 452, 455, 
 
 proof of, 456. 
 
 are not evidence against strangers, 455. 
 
 must be shown to have been kept as such, 456. 
 
 and that entries were made by the proper officer, ib. 
 
 may be inspected, 458. 
 
 Stat. 5 & 6 Will. IV. c. 76, ib. 
 CORPUS DELICTI, 
 
 must be proved, 862. 
 CORROBORATION, 
 
 of witness, Avhen allowed, 252. 
 of attesting witness permitted, 512. 
 of accomplice necessary, 821. 
 COUNSEL, 
 
 not allowed to divulge professional communications, 40, 194. 
 clerk of, same rule applicable to, ib. 
 arguments of, 610-615. 
 order of address, where several, 616. 
 statement by, as to cause of action, not conclusive, 615. 
 COUNTERPART, 
 
 admissibility of, as secondary evidence, 542. 
 
 against i)arty executing it, 564. 
 
 and when not executed, if adversary refuses to produce original, 570. 
 
 but not against thrid person, except absence of original accounted for, 570, 
 577. 
 
 of ancient leases, how far admissible, 94.
 
 INDEX. 899 
 
 COUNTY, 
 
 how far judicially noticed, 738, n. 
 
 COURSE OF BUSINESS, 
 
 entries made in, admissible, 65, 86, 465, 492. 
 
 COURT, 
 
 matters judicially noticed by, 735-739. 
 
 duty of, to expound law and decide on all collateral matters, 764, 788. 
 COURT-MARTIAL, 
 
 sentences of, generally conclusive, 371, n. 
 
 but Courts of Law will examine whether it has exceeded its jurisdiction, ib. 
 witnesses neglecting to attend, upon subpoena, are liable to attachment, 109. 
 
 COURT ROLLS, 
 
 when evidence, 94, 308, 452, 453. 
 
 how proved, 454. 
 
 proof of, by copy or examined entries, ib. 
 
 CRIMINATION, SELF, 
 
 witness not bound, in general, to criminate himself, 41, 141, 204, 240. 
 nor to produce documents which may, 111. 
 
 whether he must answer questions which tend to his disgrace, 207, 213. 
 if he does, his answers are evidence against him, 214. 
 and if he answers in part, he must answer the whole, ib. See tit. Witness. 
 
 CROSS-EXAMINATION, 
 
 a strong test of truth, 34. 
 
 excludes res inter alios, ib. 
 
 does not exclude judgments in rem, 36. 
 
 excludes depositions, 34. 
 
 and voluntary affidavits, 34, 448. 
 advantages of, 194. 
 practice as to, 196, 198. 
 what questions may be asked in, 197. 
 
 as to writings, 198, 216, 220. 
 
 as to collateral facts, 200. 
 
 in order to discredit witness, 207. 
 upon interrogatories, 423, 426. See tit. Evidence — Witness. 
 
 CROWN, 
 
 public acts of, how proved, 279. 
 
 inquisitions by officers of, 404. 
 CUSTODY, 
 
 proof of, essential to reception of ancient instruments, 291, 524-529. 
 See tit. Ancie?it Instruments — Deeds, &c. 
 CUSTOM, 
 
 proof of, 187, 736, n. 
 
 evidence by a judgment, when, 386. 
 by a deposition, when, 421. 
 
 when admissible to add to contract, 710. 
 
 to explain ancient charter, 695. 
 
 in one parish not evidence against another, 619. 
 
 when judicially noticed by the courts, 735, 736, n. 
 CUSTOMARY INCIDENTS, 
 
 may be annexed to written contract by parol evidence, 710. 
 
 CUSTOM HOUSE, BOOKS OF, 
 
 admissibility of entries in, 306. 
 DATE, 
 
 of writing, effect of variance from, 665. 
 
 primd facie evidence of time when written, 758. 
 
 DAY-BOOK, 
 
 of church register, not evidence when entry has been made in register, 298. 
 DEAF AND DUMB, 
 
 persons may give evidence by means of interpreter, 114 n.
 
 900 INDEX. 
 
 DEALING, 
 
 presumption from course of, 75. 
 
 DEATH, 
 
 apprehension of, essential to admissibility of dying declarations, 38. 
 
 admissibility of depositions in case of, Gl, 408. 
 
 presumption of, where a person has not been heard of for seven years, 77. 
 
 registry of, under 6 & 7 Will. IV. c. 86, 297. 
 
 place of, added to register under Registration Act, evidence of, 299, n. 
 
 of attesting witness inferred after thirty years, 512, 521. 
 
 and proof of, within that period, renders evidence of handwriting admissi- 
 ble, 519. 
 DEATH-BED DECLARATIONS, 
 
 when admissible and grounds of admitting, 38. 
 
 DECLARATIONS, 
 
 by third persons when admissible, 85, 95, 466. 
 
 by party in extremis, 38. 
 
 accompanying acts, 51, 87, 466. 
 
 when part of the res gestx, 89. 
 
 in case of pedigree, 45, 62, 188, 190. 
 
 made against the interest of the party, 64. 
 
 by deceased tenant, 487, 492. 
 
 in the course of business, 65, 492, n. 
 
 but only when the party is dead, 66. 
 
 and must have known the facts, ib. 
 may be evidence for some purposes but not for others, 89. 
 by strangers in general not admissible, 81. 
 
 nor when ra&A^ post litem motam, 63, 190. 
 to be made by bankrupts and their wives before commissioners, 34. 
 effect of in evidence, 487. 
 And see tit. Entries — Hearsay. 
 
 DECREE IN CHANCERY, 
 proof of, 393. 
 effect of, 398. 
 
 DEEDS, 
 
 production of, 102-113, 499. 
 
 attorney of party not compelled to produce his client's, 112. 
 
 but an agent may be examined as to their contents, ib. 
 alteration in, must be explained by party producing, 500. 
 mutilation of, is prima facie evidence of cancellation, 501. 
 should be properly stamped, 503. 
 
 non-enrolment of, must be proved by party objecting, ib. 
 legal requisites of, must be proved, ib. 
 proof of, by attesting witness, 504-507. 
 
 application of the rule, 507. 
 formerly not superseded by admission of party, 505. 
 
 but now admissions of party are evidence of contents of a document with- 
 out producing it, 506. 
 execution of, {)roof of, 505, 508, 573. 
 
 by agent, 5G5. 
 sealing of, proof of, 508. 
 delivery of, proof of, 509. 
 
 may be presumed when produced from custody of party who has acted 
 under them, ib. 
 no particuhir form of delivery necessary, ib. 
 take effect from delivery, 529. 
 proof of, on denial by subscribing witness, 510. 
 excuse for the absence of subscribing witness of, 512. 
 proof in excuse of absence of .subscribing witness of, 514-518. 
 secondary proof in the absence of subscribing witness of, 519. 
 if thirty years old require no i)roof, 521. 
 
 except of coming from proper custody, 524-529. 
 date o\\ prim(i facie evidence of time of execution, 758.
 
 INDEX. 901 
 
 DEETiS— Continued. 
 
 proof of, where no attesting witness, 529. 
 
 in case ot loss, 530. 
 evidence of search for, 532-540. 
 
 of execution of lost, 541. 
 
 unnecessary where proof of e.xecution would have been dispensed with, 
 
 542. 
 or where loss or absence is occasioned by adversary, 542, 565, 571. 
 proof of, by secondary evidence, 542-550. 
 
 when in possession of adversary, 550, 565, 571. 
 
 or of party in privity with him, 553. 
 notice to produce, must be proved, 551. 
 
 by affidavit of attorney or clerk, App. 
 
 when unnecessary, 561. 
 proof of, coming from adversary's possession, 565. 
 
 if not produced by adversary, proof must be given as in case of loss, 568. 
 admission of, under judge's order or notice, 571, App. 
 
 by party or agent, 572. 
 
 by estoppel, 90, 460. 
 proof of, by enrolment, 573, 576. 
 
 b}^ recital, 577. 
 reading of, not precluded by intrinsic objection, 578. 
 the whole to be read, 579. 
 effect of, not to be varied by parol evidence, 655-665. 
 
 but may be explained, 648, 680, 695. 
 construction of, 700. See tit. Evidence — Witness — Written Instrument, ^'C. 
 
 DEFAULT, 
 
 judgment by, effect of, 342, n. 
 DEFECT, 
 
 supplying, at close of case, 605. 
 
 DEFECTIVE EVIDENCE, 
 
 distinguished from secondary, 733. 
 DEGRADATION, 
 
 how far witness compelled to answer questions tending to his, 200-213. See 
 tit. Witness. 
 DELIVERY OF DEED, 
 
 proof of, 509. 
 
 no particular form of, requisite, ib. See tit. Deeds. 
 
 DEMEANOR, 
 
 of witness a test of credibility, 871. See tit. Witness. 
 DEMURRER, 
 
 when an admission, 451. 
 
 to evidence, effect of, 797. 
 DEPOSIT, 
 
 proof as to place of, to render ancient document admissible, 291, 524. See tit. 
 A7icient Instruments — Deeds, ^c. 
 
 DEPOSITIONS, 
 
 of witnesses, when admissible, 61, 408. 
 of deceased witness in former proceedings, 61. 
 inadmissible, when witness can be produced, 409. 
 absence or death of witness necessary, ib. 
 indemnity of parties requisite, 412. 
 
 and of deponent, 431. 
 
 but not of cause of action, 414. 
 identify of subject-matter necessary, ib. 
 
 except as matter of reputation against other parties, ib. 
 
 and in criminal cases, ib. 
 privity of claim necessary to admissibility at law, 415. 
 must have been made in a legal proceeding, ib. 
 
 and only admissible when the verdict or judgment in that proceeding would 
 be evidence, ib.
 
 902 INDEX. 
 
 DEPOSITIONS— Con/mwcrf. 
 
 in Spiritual Courts, whether admissible, 417, 434. 
 
 in courts not of record, ib. 
 
 in bankruptcy, when and of what evidence. 418. 
 
 when evidence to prove reputation, 421. 
 
 of witnesses abroad, 423. 
 
 Stat. 13 Geo. III. c. 63, and 1 Will. IV. c. 22, 424. 
 mode of procedure under, 26. 
 
 in perpetuam memoriam, 427. 
 
 Stat. 5 & 6 Vic. c. 69, 428. 
 
 in Chancery, 419, 427, 430. 
 
 not admissible when extra Judicial, 416. 
 not when ma.de post litem motavi, 421. 
 nor unless party had power to cross-examine, 61, 418. 
 
 when excluded by leading interrogatories, 433. 
 
 preparatory facts, proof of, 429. 
 
 how proved, 432. 
 
 by examined copy, ib. 
 
 office copy of, admissible in Court of Equity but not in Court of Law, 295, 432. 
 
 cross-examination upon, practice as to, 228. 
 
 are evidence to contradict, but not to support, witness, 423. 
 
 on former trial, proof of, 408, n., 429. 
 
 before coroner, 38. 
 
 before justices, when admissible, 38, 410, 417. 
 DEPRIVATION, 
 
 effect of sentence of, 371. 
 DESCRIPTION, 
 
 when party bound by, 629. 
 DIRECT EVIDENCE. See Evidence. 
 
 kinds of, 21. 
 
 consideration of, by jury, 820. 
 
 force of, in conflict with circumstantial, 828. 
 
 DISCREPANCIES, 
 
 in evidence, effect of, 830. 
 
 DISGRACE, 
 
 whether witness bound to answer questions tending to, 207, 213. See tit. 
 Witness. 
 DISOBEDIENCE, 
 
 of subpoena, liability for, 103. 
 
 will not warrant reception of parol evidence, 112. 
 
 except where the instrument has been transferred fraudulently, 113. 
 
 DISSENTING CHAPEL, 
 
 register of, how far admissible, 300. 
 DIVISIBILITY, 
 
 of averment, when allowed, 626. 
 DIVORCE, 
 
 sentence of, effect of, 375. 
 
 avoided by collusion, 402, 
 DOCUMENTARY EVIDENCE, 
 relative excellence of, 825, 
 DOCUMENTS, 
 
 production of, how secured, 109-113. 
 contents of, not to be stated, 176. 
 
 except where very volumnious, ib. 
 nor cross-examined to, 198. 
 admissibility and proof of public, 272, 296, 
 jiarlly i)ublic and partly private, 452. 
 private, 459. 
 legal requisites of, proof of, 603. 
 proof of, in case of loss, 531. 
 
 when in possession of adversary, 551, 571.
 
 INDEX. 903 
 
 DOCUMENTS— Con^mwcrf. 
 notice to produce, 454. 
 admissioa of, under judge's order, 571. 
 notice to admit, App. 
 
 admission of, under, how proved, App. 
 consequence of refusal to admit after notice, App. 
 the whole of, to be read, 579-583. 
 
 credit due to whole or part to be judged of by jury, 583. 
 construction of, matter of law, 786. See tit. Instrumenls of Evidence — Subpoena 
 
 duces tecum. 
 
 DOMESDAY BOOK, 
 
 proof by, 284. 
 
 Sir H. Ellis's work on, ib. n. 
 
 DUCES TECUM, 110. See Subpoena. 
 DUCHY OFFICER, 
 
 book of, admissibility of, 312. 
 
 DUPLICATE ORIGINALS, 
 
 must be accounted for before secondary evidence allowed, 542. 
 
 DYING DECLARATION, 
 
 admissibility of, 32, 38. 
 
 of child, when admissible, 32, n, 
 
 EAST INDIA COMPANY, 
 books of, proof of, 45G. 
 
 ECCLESIASTICAL COURT, 
 sentence of, proof of, 393. 
 
 effect of, 373. 
 books of, admissibility of, 394. 
 depositions in, admissibility of, 417, 434. 
 EJECTMENT, 
 
 right to begin in action of, 603. 
 law notices the real parties in, 326, 329. 
 wife of lessor in, when admissible. See Interest, 
 ENJOYMENT, 
 
 evidence from acts of, 50. 
 ENROLMENT, 
 
 admissibility of, in proof of instrument, 283. 
 or of certified copy, ib. 
 proof of deed by, 503, 573. 
 ENTRIES, 
 
 by third persons, when admissible, 463. 
 
 principle of admissibilit}', 464, 480. 
 when made against the interest of the party, 64, 474, 
 by deceased occupier, 480. 
 
 steward, 65, 479, 481. 
 
 bailiffs, receivers, ib. 
 
 attorney in his bopks, 474. 
 
 rector of receipt of tithes, 476. 
 when made in the usual course of business, 65, 86, 465, 492. 
 
 by churchwardens, 65. 
 
 parish officer, 480. 
 
 midwife, 65, 475. 
 
 banker's clerks, 464, tj., 481. 
 accompanying or connected with acts, 467. See tit. Declarations, 
 
 EQUITY, 
 
 bill in, not evidence of facts alleged, 439. 
 answer in, admissible against party making it, 440. 
 depositions in, admissibility of, 428, 432. 
 ERASURE, 
 
 in instrument, explanation of,500. See tit. Deeds — Documents — Written Instruments.
 
 904 INDEX. 
 
 ESTOPPEL, 
 
 general rule as to, 09. 
 
 by deed, 99, 460. 
 
 by fraud, 100. 
 
 by record, 365. 
 
 by admission under seal, 459. 
 
 of party, 459, 462. 
 
 binds all privies, 462. 
 
 when it creates an interest in land, 461. 
 
 when binding on the court, 462. 
 
 deed poll does not amount to, 461. 
 
 when to be pleaded, 343, 461. 
 
 EVIDENCE, 
 what, 12. 
 
 division of the subject, 14. 
 general principles of law of, 15. 
 
 1. natural reason. 
 
 2. artificial policy, 
 of natural reason, ib. 
 ordinary means of inquiry, are 
 
 1. by information. 
 
 2. by experience, 17. 
 
 and may be divided into two classes. 
 
 1. direct, 21. 
 
 2. indirect, ib. 
 
 reasons for adopting excluding principles, 18. 
 direct evidence is of two kinds, 21. 
 
 1. immediate. 
 
 2. mediate. 
 imtnediate evidence. 
 
 principles which govern reception of, 21. 
 administration of oaths, 22, 29. 
 
 which exclude those who might not be bound by oaths, ib. 
 
 by reason of turpitude or interest, 22. 
 nature of the interest which formerly excluded, 23. 
 
 exceptions, 25, 27. 
 belief essential to taking an oath, 29. 
 form of oath, 30. 
 must be judicial, 31. 
 exceptions to taking oath, 32. 
 declarations. fM extremis, ib. 
 affirmations by Quakers, &c., ib. 
 test of, by cross-examination, 34. 
 which excludes hearsay evidence, 35. 
 
 except dying declarations, 32, 48. 
 mediate evidence, 43. 
 
 in general only admissible on failure of better evidence, ib. 
 reputation, wlien admissible, ib. 
 
 1. must be of jjublic nature, 47. 
 
 2. must be general, 49. 
 
 3. must be supported by acts of enjoyment, 50. 
 admissions by parties or privies, ib. 
 declarations accompanying acts, 51. 
 
 7nediate .secondary evidence, 53. See tit. Secondary Evidence. 
 in general inadmissible, 56-61. 
 under what sanctions admissible, 61. 
 traditionary evidence, ib. 
 in what other cases admissible, 53, 61. 
 indirect evidence. 
 
 necessity for resorting to, 67, 79. 
 
 presumptions from experience, 70. 
 from conduct, 71.
 
 INDEX. 90 J 
 
 EVIDENCE.— Con^mM««f. 
 
 indirect evidence, 
 
 as to motives, ib. 
 from course of dealings, 75. 
 as to continuance, 76. 
 circumstantial evidence. See tit. Circumstantial Evidence. 
 principles of admissibility of, 67. 
 extent of the principle, 80. 
 res inter alios acta, rule as to, 81. 
 what it excludes, ib. 
 
 does not exclude evidence of acts and admissions of parties, 85. 
 of lavrs and customs, ib. 
 of facts vrhich have legal operation, 86. 
 eflFect on declarations and accompanying acts, 87. 
 collateral facts, 90, G18. 
 ancient instruments, admissibility of, 93. 
 must come from proper repository, 93, 291, 524. 
 must be free from suspicion, 93. 
 supported by acts of enjoyment, ib. 
 declarations admissible in explanation of, 95. 
 evidence on questions of skill, &c., &c., 95. 
 
 exclusion on principles of artificial policy of secondary evidence, 39. 
 See tit. Secondari/ Evidence. 
 
 of that of husband and wife, ib. See tit. Interest. 
 of confidential communications, 40. 
 of evidence tending to crimination of witness, 41. 
 of matters on grounds of state policy, ib. 
 artificial evidence, 
 
 where necessary, 96. 
 rolls of Parliament, records, &c., 97. 
 weight annexed to, 73. 
 verdicts, &c., ib. 
 conventional evidence, 
 
 how far interfered with by law, 98. 
 as to manner, form, and effect, ib. 
 estoppels, 99. 
 presumptions of law, 747. 
 of law and fact, 549. 
 direct evidence, 
 
 on what its force depends, 820. 
 
 integrity of witnesses, ib. 
 exceptionable witnesses are competent, 821. 
 but require confirmation, ib. 
 degrees of evidence, 
 
 full proof, when requisite, 817. 
 mere preponderance, when sufficient, 818. 
 prima facie and conclusive evidence, 819. 
 evidence to be weighed by jury, 820. 
 effect of partial incongruities, 866. 
 positive and negative evidence, 867. 
 conflicting evidence, 869. 
 process of comparison, 871. 
 
 testimony of false witness to be rejected altogether, 873. 
 except when given in favor of the adverse party, ib. 
 effect of false testimony in other evidence, ib. 
 
 comparison of direct and circumstantial evidence, 874. See tit. — Best 
 Evidence — Hearsay — Instrurnents of Evidence — Parol Evidence — Secondary 
 Evidence — Written Evidence, ^c. 
 
 EXAMINATION, 
 
 of witnesses, in chief, 166. 
 
 as to what, 172. 
 of witnesses as to actual knowledge, 172. 
 
 52
 
 006 INDEX. 
 
 EXAMINATION.— Cow^inwerf. 
 belief, 172. 
 
 judgment on questions of skill, 96, 173. 
 foreign law, 173. 
 gentral results of documents, ib. 
 matters of confidence, 191, 194. 
 on interrogatories, 424. 
 mode of procedure, 426. 
 b}- magistrates, 106. 
 for prisoners to be taken on oath, 33. 
 of bankrupts and their wives, before commissioners not to be upon oath, 34. 
 See tits. Cross-examination — Depositions — Witness. 
 EXCEPTIONS, BILL OF, 
 
 course of procedure upon, 790, 795. 
 EXCHEQUER, 
 
 condemnations in, effect of, 378. 
 EXCISE AND CUSTOMS, 
 
 books and papers of, when evidence, 306. 
 condemnation by commissioners of, effect of, 379. 
 EXECUTION. 
 
 proof of, 505, 508, 573. 
 
 ancient instruments admissible without proof of, 93. 
 of lost instrument, proof of, 541. 
 EXEMPLIFICATIONS, 
 
 different kinds of, 257, 259. 
 why received in evidence, ib. 
 proof of, ib. 
 EXPENSES, 
 
 of witness in civil cases, 103. 
 in criminal cases, 105. 
 EXPERIENCE, 
 
 presumption arising from, 51. 
 in favor of, 762. 
 EXPLANATION, 
 
 admissibility of declaration for purpose of, 95. 
 FACTS, 
 
 general rule as to what, are evidence, 78. 
 
 collateral, admissibility of, 90. 
 
 real, what are, 91. 
 
 spurious, how detected, 92. 
 
 context of, must be consistent, ib. 
 
 jury must find facts, not evidence, 765. 
 
 historical, may be proved by reputation, 49. 
 
 and by generally received historical account of them, ib. 
 FINE, 
 
 proof of, 260, 577. 
 FLEET PRISON, 
 books of, 299. 
 FORCE OF TESTIMONY, 
 
 observations on, 832. 
 FOREIGN ATTACHMENT, 
 
 custom of, proof of, 73G, n. 
 FOREIGN COURT, 
 
 effect of judgment of, 346-355. 
 proceedings and judgments of, how proved, 399. 
 proceedings of, when judicially noticed, 740. 
 FOREIGN JUDGMENTS, 
 how [iroved, 399. 
 
 how far open to examination, 355-358. 
 when conclusive, 346-352.
 
 INDEX. 907 
 
 FOREIGN JUDGMENTS.— Con<m!<erf. 
 
 general position; that when conclnsive in the country where pronounced they 
 are also conclusive in this country, 353. 
 
 if relied on as an estoppel, must be pleaded as such, ib. 
 
 impeachable for apparent error, 354. See tit. Judgments. 
 FOREIGN LAW, 
 
 proper proof of, is by persons conversant with it, 175. 
 
 FORMER TRIAL, 
 
 evidence on, when admissible, 433. 
 FRAUD, 
 
 when judgment may be impeached on ground of, 384. 
 when not, 385. 
 
 when evidence of, admissible to impeach instruments, 672. 
 
 presumption of, ground of rule respecting best evidence, 642. 
 
 when a question of law and when of fact, 784. 
 
 presumption in case of, 847. 
 
 GAZETTE, 
 
 evidence of acts of state by, 279. 
 
 proclamation of peace, ib. 
 
 quarantine, ib. 
 
 reprisals, ib. 
 when admissible to prove notice, 280. 
 not evidence of private matters, ib. 
 judicially noticed by the courts, 739, n. 
 
 GENERAL EVIDENCE, 
 
 when admissible, 645. 
 GRAND JURY, 
 
 evidence given before, not to be revealed, 193. 
 GUARDIAN, 
 
 is now admissible as witness for ward, 132. 
 
 answer of, in Chancery, not evidence against infant, 442. 
 GUERNSEY, 
 
 copy register of baptism of, inadmissible, 300. 
 
 HABEAS CORPUS ad testificandum, 
 
 provisions of stat. 44 Geo. III., c. 102, respecting, 104. 
 
 HEARSAY, 
 
 inferior nature of such testimony, 43. 
 
 in general is not admissible, 43, 56, 61. ^ 
 
 when admissible, 43, 61, 89, 185, 191. 
 
 reasons for its admission, 43. 
 
 general reputation, what, 43. 
 
 admissible when the fact is of public nature, ib. 
 
 particular subjects to which such evidence is applicable, 44, 89, 186. 
 
 to prove a man's character, 47. 
 
 pedigree and state of family, 45, 47, 188. 
 
 prescriptive or customary rights, matters of public notoriety, 47. 
 
 1. the facts must be of a public nature, 47, 62. 
 
 such as right of common, 48. 
 
 boundaries between parishes or manors, &c., 49. 
 historical facts, ib. 
 
 2. must be as to general and not particular facts, ib., 62. 
 
 evidence of perambulations, 50. 
 
 3. the reputation should be supported by acts of enjoyment, 50, 63, 190. 
 admissions by parties, 50. 
 
 declarations accompanying acts, 51. 
 
 by trader deserting house in contemplation of bankruptcy, ib. 
 
 rule not applicable to declarations accompanying irrelevant acts, 52. 
 
 declarations made against interest, 64. 
 
 in the course of business, 65. 
 See tit. Declarations — Evidence — Reputation — Tradition, SfC,
 
 908 INDEX. 
 
 HERALD'S BOOKS, 
 
 admissibility of, in proof of pedigrees, &c., 312. 
 
 HISTORICAL FACT, 
 
 proof of a particular, 49. 
 
 HISTORY, 
 
 books of public, admissibility of, 49, 97, 314. 
 
 HOUSES OF PARLIAMENT, 
 
 journals of, admissibility of, 281. 
 
 eS'ect of, 282. See Commons^ House of — Lords, House of. 
 
 HUMAN TESTIMONY, 
 
 general character of, 831. 
 HUSBAND AND WIFE, 
 
 cannot be witnesses for or against each other, 29, 39, 138, 194, 513, n. 
 unless both be parties to the proceeding, 139. 
 or it be a proceeding in the County Court, ih. 
 
 but cannot be witnesses for or against each other in a criminal proceeding, 
 138. See Interest — Wife. 
 HYPOTHESIS, 
 
 coincidences between facts and, 843. 
 
 IDENTITY, 
 
 of parties, essential to be proved before judgment, &c., admissible, 324. 
 also of fact, 333. 
 test of, ib. 
 IGNORANCE, 
 
 of witness, how far ground for excluding, 114. 
 
 IMPROPRIATION, 
 
 evidence to prove, 294. 
 
 INCOMPETENCY, 
 
 to testify, different kinds of, 114. 
 time of objecting on ground of, ib. 
 examination as to, lid. See tit. Interest. 
 
 INCONSISTENCY, 
 
 of testimony, effect of, 829. 
 INDIA, 
 
 examination of witnesses resident in, 424; 
 INDICTMENT, 
 
 proof of, 391. 
 INDIRECT EVIDENCE, 
 
 what, 21. 
 
 admissibility of, 67. 
 INDUCEMENT, 
 
 variance in matter of, 626, 645. 
 INFAMY, 
 
 effect of, on competency of witness, 117. 
 
 no longer ground of exclusion, 118. 
 
 INFANCY, 
 
 incompetency to testify from, 117. 
 onus 2}J'cbandi on plea of, 590, 591, n. 
 
 INFERIOR COURT, 
 
 judgment of, proof of, 358, 396. 
 efi'ect of, 358, 368. 
 how far examinable, ih. 
 seal of, must in general be proved, 740. 
 
 INFORMATION, 
 
 before magistrate, proof of loss of, 539 
 INNOCENCE, 
 
 presumptions in favor of, 755.
 
 INDEX. 909 
 
 INQUISITIONS, 
 
 admissibility of, 289, 404, 407. 
 
 analogous to adjudications in rem, 404. 
 
 under public commissions, 286, 407. 
 
 valor beneficiorum, 285. 
 
 inquisitiones nonnrum, 286. 
 
 extent of Crown lands, 287. 
 
 post mortem, 288. 
 
 not necessary that evidence on, should have been given on oath, 289. 
 
 taken without authority inadmissible, 289, 407. 
 
 of lunacy, admissible but not conclusive, 379, 406. 
 
 by coroner, 405. 
 
 parties affected by, may traverse, 404. 
 
 whilst unreversed, conclusive as to property, 405. 
 INSANITY, 
 
 when it renders witness incompetent, 114. 
 INSOLVENT, 
 
 declarations by admissibility of, 467. 
 INSOLVENT COURT, 
 
 power of, to compel attendance of witnesses and production of documents, 108, 
 110. 
 
 proof of proceedings in, 265. 
 
 INSTRUMENTS OF EVIDENCE, 
 what they are in general, 102. 
 
 1. Oral Evidence. 
 
 mode of enforcing attendance of witnesses, 103. 
 expenses must be tendered, 104, 106. 
 consequences of disobedience, 104, 106. 
 liability to attachment, 104, 106. 
 
 and damages in an action on the case, ib, 
 Stat. 5 Eliz. c. 9, s. 12, ib. 
 where witness is in custody, 104. 
 where under restraint, 105. 
 
 sailor on board man of war, ib. 
 mode of enforcing attendance in criminal cases, ib. 
 justices may bind over by recognizance, ib. 
 
 Stat. 11 & 12 Vict. c. 42, ss. 16, 20, ib., 107. 
 coroner also, in cases of murder and manslaughter, ib. 
 
 Stat. 7 Geo. IV. c. 64, s. 4., ib. 
 witnesses for defendant in criminal cases may be subpoenaed, 106. 
 
 liable to attachment for non-attendance upon subpoena, 107. 
 mode of enforcing attendance at sessions, and in inferior courts, 107-109. 
 mode of enforcing production of documents, 110. 
 objections in exclusion of oral evidence, 114, et seq. 
 
 2. Written Evidence. 
 written instruments are — 
 
 1. of a public nature, 254. 
 
 2. of a mixed nature, ib. 
 
 3. of a private nature, ib. 
 1. Pdblic Documents 
 
 are either judicial or not judicial, 256. 
 
 documents of a public nature, how procured and proved, 256, 315. 
 records are proved by mere production, or by copy, 257. 
 
 copies or records are either exemplifications, copies made by authorized officer, 
 or sworn copies, ib. 
 
 proof of public documents by exemplification, 257. ■• 
 
 exemplifications under the great seal, ib. 
 
 under the seal of a particular court, 258. 
 
 copies by authorized persons, 260. 
 
 proof by office copy, 261. 
 
 by statutory office copy, 261-265. 
 
 by sworn copy, 265-268.
 
 910 INDEX. 
 
 INSTRUMENTS OF EVIDENCE— Conti7iued. 
 when admissible, 268-270. 
 how proved, 270. 
 
 copy never admissible when original is produced, 271. 
 lost record, how proved, ib. 
 
 public documents not judicial, admissibility of, 273. 
 Acts of Parliament, how proved, ib. 
 
 public, require no proof, 274. 
 private Acts of Parliament must be proved, 276. 
 
 but admissible, if purporting to be printed by Queen's printers, 
 227. 
 recitals in Acts of Parliament, effect of, 278. 
 Acts of state, proof of, 279. 
 
 by the Gazette, ib. 
 foreign and colonial acts of state, proof of, 281. 
 commercial regulations, ib. 
 
 public docuraenis printed by the Queen's printers, evidence by, ib. 
 articles of war, ib. 
 royal proclamations, ib. 
 rules, &c., of poor law commissioners, ib. 
 
 journals of House of Lords and Commons, admissibility of, ib. 
 public Acts of the Crown, 283. 
 ancient surveys under authority, 284-288. 
 inquisitions, 288. 
 terriers and surveys, 289. 
 proof as to place of deposit, 291. 
 public licenses and grants, 293. 
 certificates, 294. 
 public registers of parish, 296. 
 
 how proved, 302. 
 parish books, admissibility of, 303. 
 books and documents of public offices, 305. 
 excise and custom books, &c., 306. 
 court rolls, 308. 
 official documents, 308, 309. 
 poll books, 308. 
 prison books, ib. 
 bishop's register, 309. 
 corporation books, ib. 
 
 chancellor's books, 310. , 
 
 clerk of the peace's books, ib. 
 ship's registers, ib. 
 
 stage and hackney coach entries, 311. 
 herald's books, ib. 
 armorial bearings, 312. 
 duchy books, ib. 
 commissioner's books, 313. 
 land tax books, ib. 
 public histories and chronicles, 314. 
 II. Judicial Documents. 
 
 First class : — ^judgments, decrees, and verdicts, admissibility and effect of, 316. 
 
 general considerations, 317. 
 
 when conclusive, 318. 
 
 judgments in rem, 320. 
 
 judgment always evidence as a fact and as to all legal consequences, ib. 
 
 admissibility of, with view to proof of matters on which founded, 323. 
 
 judgments between private persons, when admissible, ib. 
 
 against same jjartics, 324. 
 
 tliosc claiming in privity, 326. 
 
 those who niigiit have been parties, 330. 
 benefit to be derived from, must be mutual, 331. 
 admissibility of verdicts in civil ])roceedings in criminal cases, 332. 
 identity of facts, 333. 
 verdict for same cause of action l)etween same parties conclusive, ib.
 
 INDEX. 911 
 
 INSTRUMENTS OF EYWE^iCE.— Continued. 
 the adjudication must be direct, 337. 
 
 also final and conclusive, 340. 
 application of a judgment in proof, 341. 
 to prove same fact for same purpose, 341, 345, 346. 
 
 if relied on as an estoppel, must be pleaded as such, 342. 
 
 when conclusive, 345. 
 foreign judgments, when conclusive between parties, 346-355. 
 
 how far examinable, 355. 
 judgments of inferior courts, 358. 
 
 how far examinable, 35!). 
 to prove same fact for a different purpose, 360. 
 verdicts and judgments in criminal cases, admissibility of, in civil action, 361. 
 
 as a general rule are not admissible, 363. 
 eifect of, in evidence, 365. 
 
 penal judgments conclusive as to all legal consequences, 367. 
 judgments and convictions in inferior courts, 368. 
 orders and convictions by justices, 368, 383. 
 sentences by colleges and visitors, 370. 
 judgments in rem, admissibility of, 371. 
 general principles respecting, 372. 
 judgment of the Ordinary and Spiritual Courts, 373. 
 sentences of Spiritual Court, 375, 393. 
 condemnations in the Exchequer, 378. 
 admiralty decisions, 380. 
 proceedings by quo ivarvanto, 384. 
 judgments, &c., avoided by fraud, ib. 
 
 except as between parties, 385. 
 effect of judgments, &c., in proof of custom, &c., 386. 
 mode of proof of judgments and verdicts, 388. 
 
 of a decree in chancery, 391. 
 
 of sentence in Spiritual Courts, 393. 
 
 of probate, ib. 
 
 of letters of administration, ib. 
 
 of judgments of inferior courts, 396. 
 
 of convictions by justices, 397. 
 
 of an award, 399. 
 
 of a foreign judgment, ib. 
 judgments, &c., how rebutted, 400. 
 
 Judicial Documents. 
 
 Second class: — inquisitions, depositions, and examinations taken in course of 
 judicial proceedings, 404. 
 
 when admissible, ib. 
 
 inquisitions, ib. 
 
 depositions, 409. 
 witness must be dead or absent, ib. 
 parties must be the same, 412. 
 
 also subject-matter, 414. 
 privity of claim, 415. 
 
 must have been taken in legal proceedings, ib. 
 extra-judicial, not admissible, 416. 
 in Spiritual Courts, 417. 
 
 party against whom offered must have had power to cross-examine, 418. 
 when evidence to prove reputation, 421. 
 witnesses abroad or sick, examinations of, 423. 
 bill to perpetuate testimony, 427. 
 preparatory facts to be proved, 429. 
 existence of lawful cause, 430. 
 identity of deponent, 431. 
 proof of depositions, &c., by copy, 432. 
 leading interrogatories, 433. 
 lost interrogatories, 434. 
 depositions in Ecclesiastical Courts, ih.
 
 912 INDEX. 
 
 INSTRUMENTS OF EYWE'i^CE.— Continued. 
 Judicial Documents. 
 
 Third class: — writs, warrants, pleadings, &c., 435. 
 
 for what purposes admissible, ib. 
 effects of writs and warrants in evidence, ib. 
 
 sheriff's return on, 437. 
 
 proof of, 438. 
 bill in Chancery, when evidence, 439. 
 answer in Chancery, 440. 
 
 the whole of an answer is evidence, 444. 
 proof of bill and answer, 447. 
 affidavits, 448. 
 
 rules and orders of Court, 449. 
 pleadings, ib. 
 protestations, 451. 
 
 III. Mixed Documents. 
 
 are partly of a public and partly of a private nature, 452. 
 court rolls, 308, 452. 
 corporation books, 309, 455. 
 
 proof of, 457. 
 
 inspection of, 458. 
 books of public companies, 452, 456. 
 
 IV. Private Documents. 
 operation in evidence of, 458. 
 
 all documents to which a party was privy are in general evidence against him 
 
 459. 
 express admissions by party as to contents of, ib. 
 what an estoppel, 460. 
 
 when to be pleaded as such, 461. 
 
 binds all privies, 462. 
 sense of contracts not to be altered by parol evidence, 463, 656. 
 entries and declarations by third persons, 463. 
 
 when admissible, 464. 
 
 accompanying acts, 466-471. 
 title deeds, 472. 
 surveys and maps, ib. 
 ancient deeds, maps, &c., 473. 
 entries and declarations made against interest of party, 474-479. 
 
 by receivers, stewards, &c., 479-485. 
 
 by deceased tenants, 487-492. 
 entries in the usual course of professional business, 492-498. 
 proof of private documents, 498. 
 
 production of, 499. 
 
 erasures or alterations in, 501. 
 proof of legal requisites, 503. 
 
 by attesting witness, 504. 
 
 of sealing of deed, 508. 
 
 of delivery, 509. 
 proof of, on denial by attesting witness, 510. 
 excuse for absence of attesting witness, 512-518. 
 secondary proof in absence of attesting witness, 519-521. 
 proof of instrument when thirty years old, 521. 
 proof as to custody of ancient documents, 524-529. 
 proof where there is no attesting witness, 529. 
 proof of lost instrument, 530. 
 evidence of search, 532-540. 
 
 of execution of lost instrument, 541. 
 proof l>y secondary evidence, 542-550. 
 proof of instrument in possession of adversary, 550. 
 
 or person in privity with him, ib. 
 
 wliat equivalent to jiossession by adversary, 554. 
 notice to jiroduce instrument, ib. 
 
 on whom or wiieii to be served, 555, 7i.
 
 INDEX. 913 
 
 INSTRUMENTS OF EYIDKNCE.— Continued. 
 service of, how proved, 555 and App. 
 notice to produce, what sufficient, 559. 
 
 when unnecessary, 561. 
 if produced by adversary, must be proved, 565. 
 
 unless adversary claims interest under it, 567. 
 if not produced, possession by adversary, how proved, 568. 
 
 then secondary evidence may be given, 568. 
 admission by order under R. G. 4 Will. IV., 571. 
 
 under 15 and 16 Vict. c. 76. See App. 
 proof by enrolment, 573. 
 proof by recital, 577. 
 
 intrinsic objection will not preclude the reading, 578. 
 the whole of an entire document to be read, 579. 
 
 jury to judge of credit due to whole or part, 583. See tit. Parol Evidence — 
 Witnesses — Written Instruments, ^c. 
 INTEGRITY, 
 
 of witnesses, observations on, 820. 
 
 INTENTION, 
 
 presumptions as to, 71-75. 
 from conduct, 849. 
 INTEREST, 
 
 general principle of exclusion on account of, 23. 
 nature of disqualifying interest formerly, 24, 118. 
 objections to the rule, 25. 
 former exceptions to it, 26-28. 
 operation of the excluding principle, 29. 
 in the result of the verdict or judgment, 119. 
 as a party, ib. 
 
 or beneficially interested, ib. 
 or from being bound to abide the result, ib. 
 right to share in result or liability to contribute, 120. 
 liability over, 121. 
 agent, ib. 
 interest in record, 122. 
 
 effect of 3 and 4 Will. IV. c. 42, upon, 124. 
 Stat. 6 and 7 Vict. c. 85, provisions of, 125. 
 effect of, ib. 
 
 general rule that interested person incompetent, abrogated by this 
 statute, 126. 
 exceptions of certain persons excluded on ground of interest, and not rendered 
 competent, 127. 
 
 party individually named in record, ib. 
 
 co-defendant who had suffered judgment by default, 128. 
 defendant in indictment who had pleaded guilty, ib. 
 party who had ceased to be interested, 129. 
 against whom 7iolle prosequi had been entered, ib. 
 lessor or tenant in ejectment, 132. 
 
 landlord or person in whose right cognizance is made, 133. 
 person in whose individual behalf action brought or defended, 134. 
 husband or wife of these persons, 138. 
 
 in what cases these persons admissible formerly, 127, 134, 138. 
 stat. 14 and 15 Vict. c. 99, provisions of, 140. 
 effect of them, 140, 141, 142. 
 
 repeals exception in 6 and 7 Vict. c. 85, save as to husbands and wives, 140. 
 no person charged with an indictable offence, or one punishable on sum- 
 mary conviction, competent or compellable to give evidence for or 
 against himself, ib. 
 any proceeding in consequence of adultery or any action for breach of 
 
 promise of marriage excepted, 141. 
 husbands and wives not admissible for or against each other in criminal 
 
 cases, 140. 
 nor in civil cases, if interested, 142.
 
 914 INDEX. 
 
 INTEREST— Contmtied. 
 
 unless both be parties to the proceeding, ib. 
 whether husband or wife may be examined if adversary do not object, 143. 
 if objection made, it is in judge's discretion whether he will allow it to 
 
 be withdrawn, ib. 
 on what objection founded, 142. 
 INTERPRETER, 
 
 not allowed to divulge professional communication between attorney and 
 client, 40. 
 INTERROGATORIES, 
 
 witness abroad may be examined on, 110. 
 
 mode of procedure, 424, 426. 
 where lost, 434. See Depositions. 
 INTRINSIC OBJECTION, 
 
 does not prevent reading of deed, 578. 
 INTRODUCTORY MATTERS, 
 
 evidence admissible as to, 645. 
 INVESTIGATION, 
 
 process of, what essential to, 2, 3. 
 IRELAND, 
 
 law in, when judicially noticed, 737. 
 
 documents admissible in, without proof admissible in England, App. 
 IRRELEVANT FACTS, 
 
 not evidence, 617. 
 ISSUE, 
 
 what matters in, admitted by pleadings, 450, 639. 
 where several issues, order of proof, 605, 616. 
 what sufficient proof of, 632. 
 JACTITATION SUIT, 
 
 on what founded, 377. 
 effect of judgment in, ib. 
 JEWS, 
 
 how sworn, 30. 
 
 marriage of, how proved, 297, n. 
 
 entry by chief rabbi of, of circumcision of child, not evidence as to age, 300, 498. 
 JOURNALS, 
 
 of Houses of Parliament, 281. 
 
 copies of, admissible in evidence, 282. 
 JUDGMENT, 
 
 principle of admissibility of, 36, 316. 
 
 for what purposes offered in evidence, 316. 
 
 evidence by, is in its nature presumptive only, 318. 
 
 admissible to prove judgment, &c., as a mere fact, 317, 320. 
 
 and with a view to all legal consequences, 320. 
 admissibility of, in proof of facts recited, 318. 
 as to facts of a private nature, 319, 323. 
 as to facts between the same parties, 323. 
 or those who claim in privity, 326, 327. 
 heir and ancestor, ib. 
 executor and testator, ib. 
 verdict for one in remainder against another, 327. 
 
 of ouster against a mayor evidence in quo wan-anto ugainst one admitted, by him, ib. 
 sufficient if the i)arties be substantially the same, 329. 
 ill ejectment the law notices the real parties, 326, 329. 
 evidence against one who might have been a party, 330. 
 cannot be used unless the benefit to be derived be mutual, 331. 
 in civil proceedings not evidence in criminal, 332. 
 recovery of, when a bar, 333-335. 
 identity of fact to be proved, 333. 
 
 not essential that it should have been specially i)ut in issue, 336. 
 party sued in dill'ereiit capacity not concluded by, 337. 
 nature and manner of the adjudication, ib.
 
 INDEX. 915 
 
 JUDGMENT.— Co«<t«Me<?. 
 
 must be direct, not oollateral, ib. 
 
 but collateral adjudication is evidence between the same parties if issue 
 be joined upon it, 330. 
 must be conclusive, 340. 
 
 effect of, on same fact for same purpose, 341, 365. 
 
 conclusive as between the same parties, 323, 342. 
 
 provided it be pleaded as an estoppel, 342. 
 
 if not so pleaded, jury may find according to truth, 343. 
 
 to what, the rule extends, 345. 
 foreign, when conclusive, 346-354. 
 
 impeachable for apparent error, 354. 
 
 how far examinable, 355. 
 of inferior courts, 358, 368. 
 effect of, to prove same fact for different purpose, 360. 
 
 by a court of exclusive jurisdiction, ib. 
 
 b}' a court of not exclusive jurisdiction, ib. 
 in criminal cases, 361-368. 
 
 in general not admissible to establish a particular fact, ib. 
 acquittal of defendant on an indictment not evidence in a civil proceeding, ib. 
 
 otherwise when a defendant pleads that he is guilty, 362. 
 whether conviction on indictment for bigamy be admissible in civil action, ib. 
 verdict in a criminal, not evidence in a civil case, 363. 
 acquittal or conviction in a criminal proceeding, 365. 
 
 when pleaded in bar of a second prosecution, 366. 
 acquittal on indictment for non-repair of road inconclusive, ib. 
 
 but a conviction would be conclusive, unless fraud were proved, 367. 
 penal, conclusive as to all legal consequences, ib. 
 
 exception in a case of principal and accessory, ib. 
 of inferior court evidence of fact of adjudication, 368. 
 
 and as to all legal consequences, ib. 
 convictions by magistrates, ib. 
 
 sentences by visitors, 370. 
 judgment in rem, 36, 420, 371-388. 
 
 marriage, 371. 
 
 bastardy, ib. 
 
 when final, 372. 
 
 reasons for this, ib. 
 of the Spiritual Courts, 373. 
 
 probate, 374. 
 
 sentence of nullity of marriage, 375. 
 
 of deprivation, ib. 
 
 in jactitation suit, 375, 376. 
 not conclusive, 376. 
 nor evidence but inter partes, ib. 
 of condemnation in the Exchequer, 378. 
 by commissioners of excise, 348, 379. 
 by commissioners of taxes, ib. 
 of Courts of Admiralty, 380. 
 of foreign courts, ib. 
 
 orders of justices in settlement cases, 383. 
 judgment in quo umrranto, 384. 
 judgment in rem, when conclusive, ib. 
 against one not a party, ib. 
 impeachable for fraud, ib. 
 against parties, 385. 
 when not impeachable, ib. 
 effect of, in proof of custom, 386. 
 
 right of way, ib. 
 
 prescription, ib. 
 
 pedigree, ib. 
 when conclusive, 387. 
 judgment, how proved, 388. 
 
 by production of record from proper depository, ib.
 
 916 INDEX. 
 
 JUDGMENT— Coniiniied. 
 
 by exemplification, ib. 
 
 by sworn or admitted copy, ib. 
 when a judgment becomes a record, ib. 
 of House of Lords how proved, 389. 
 verdict, how proved, ib. 
 decree in Chancery, how proved, 391. 
 in Spiritual Court, how proved, 393. 
 
 probate, ib. 
 
 letters of administration, ib. 
 by ledger books of Spiritual Court, ib. 
 
 Avhen evidence, ib. 
 
 revocation of probate, 396. 
 of inferior court, how proved, ib. 
 of county court, how proved, 397. 
 of court baron, ib. 
 of hundred court, ib. 
 convictions by justices, how proved, ib. 
 award, how proved, 398. 
 foreign judgment, how proved, 399. 
 judgment, how rebutted, 400. 
 
 by proof that it is null arid void, ib. 
 
 that it was fraudulent, 402. 
 
 that it was reversed, 403. 
 
 JUDICIAL DOCUMENTS, 
 how far evidence, 97. 
 when conclusive, 318. 
 kinds of, 316. 
 
 1. judgments, decrees, and verdicts, 316-403. 
 
 2. inquisitions, depositions, and examinations, 404-435. 
 
 3. writs, warrants, pleadings, &c., 435-451. See tit. Depositions — Inquisitions 
 — Instruments oj Evidence — Judgments — Writs, ^c. 
 
 JUDICIAL NOTICE, 
 
 of what matter courts will take, 735-739. 
 
 facts according to the course of nature, 735. 
 
 general customs of the realm, ib. 
 
 contents and titles of public Acts of Parliament, ib. 
 
 and of such as relate to trade in general, ib. 
 
 all other general laws, ib. • 
 
 privileges of the royal palaces, ib. 
 
 Ecclesiastical and Admiralty laws, ib. 
 
 commencement of sessions of Parliament, ib. 
 
 place of holding Parliament, 736. 
 
 prorogation of Parliament, ib. 
 
 course of proceedings in Parliament, ib. 
 
 all courts of general jurisdiction and their proceedings, ib. 
 
 the Laws of Ireland, 737. 
 
 Court of Chancery, ib. 
 
 other courts at Westminster, ib. 
 
 County Palatine Courts, ib. 
 
 courts in Wales, ib. 
 
 Prerogative Courts, ib. 
 
 what courts have general jurisdiction, ib. 
 
 limits of their jurisdiction, ib. 
 
 record of its own court, ib. 
 
 number of days in a month, 738. 
 
 computation of time by the calendar, ib. 
 
 fasts and festivals in, ib. 
 
 period of terms, ib. 
 known divisions of the kingdom, ib. 
 royal proclamation, 738. 
 accession and demise of the sovereign, 739.
 
 INDEX. 917 
 
 JUDICIAL NOTICE.— Cow/mwerf. 
 seals of the superior Courts, ib. 
 
 of the Ecclesiastical and Admiralty Courts, ib. 
 
 of the Courts of Bankruptcy and Insolvency, ib. 
 
 of the County Courts, ib. 
 
 of the Stannaries Courts, ib. 
 
 of the Board of Poor Law Commissioners, ib. 
 
 of the Record Office, ib. 
 
 of the Register of Designs' Office, ib. 
 
 of the Apothecaries' Company, ib. 
 
 of the City of London, ib. 
 seals given by Act of Parliament, ib. 
 the sign manual, 740. 
 the signatures of the judges, ib. 
 meanintjof English words, ib. 
 terms of art, ib. 
 legal weights and measures, ib. 
 money, ib. 
 
 ordinary admeasurement of time, ib. 
 but the courts will not notice judicially peculiarities of tenures, 736. 
 
 nor particular local customs, ib. 
 
 nor the mere practice of other courts, ib. 
 
 nor the nature and extent of jurisdiction of inferior courts, 737. 
 
 nor any particular jurisdiction, ib. 
 
 nor of a particular liberty, ib. 
 , nor of the cinque ports, ib. 
 
 nor foreign laws, ib. 
 
 nor laws of Scotland, ib. 
 
 nor laws of the colonies, ib. 
 
 nor the seal of foreign courts, ib. 
 
 nor the hours, as the time of sunset, 738. 
 
 nor the local situation of places in counties, ib. 
 
 nor the distance of counties from each other, ib. 
 
 nor that a place is in a particular county, ib. 
 
 nor that a town is in a particular diocese, ib. 
 
 nor that Dublin, mentioned in a bill of exchange, is in Ireland, ib. 
 
 nor the seals of inferior courts, unless required by statute, 740. 
 
 nor the seal of the sheriff, ib. 
 
 nor the seals of other corporations than London, ib. 
 
 nor the stamp of a judge's order, ib. 
 
 JURATA PATRLE, 
 
 of Glanville and Bracton, 7, n. 
 
 JURY, 
 
 origin of trials by, 5-8. 
 
 advantages derived from institution of, 6, 10, 813. 
 
 formerly returnable from the vicinage, 6, 69. 
 
 and acted in double capacity of witnesses and jurors, 7. 
 duties of, 7, 10, 811. 
 must judge of facts by means of their own experience, 9, 10. 
 
 but rely for facts upon the information of others, 16, 816. 
 on what grounds of relief they must depend, 17. 
 how to decide on questions of skill, 96. 
 
 to judge of credit due to whole or any part of the evidence, 583. 
 fitness of, for investigating facts, 8. 
 duty of, in finding a general verdict, 11, 767, 817. 
 at liberty to find a special verdict, 765. 
 must find facts, not evidence, ib. 
 are the legal judges as to probabilities, 8 2. 
 how far limited by rules of law, 814. 
 bound by all legal presumptions, 816. 
 must decide on evidence, not on private knowledge, ib. 
 not bound by estoppels, 816. 
 mistake of, ground for new trial, 802.
 
 918 INDEX. 
 
 JURY. — Continued. 
 
 charging, practice as to, 810. 
 JUSTICE OF THE PEACE, 
 
 depositions before, when evidence, 38, 410, 416. 
 
 convictions by, effect of, 368, 397. 
 KING, 
 
 proclamation of, what it proves, 279. 
 
 sign manual of, effect of, 293, 294. 
 judicially noticed, 740. 
 LATENT AMBIGUITY, 
 
 may be removed by extrinsic evidence, 652. See tit. Evidence. 
 LAW, 
 
 presumptions of, 741, 747. 
 
 questions of, to be decided by the court, 764. 
 
 foreign, how proved, 175. 
 
 LAW AND FACT, 
 
 comprised in every issue, 3. 
 distinctions between, 767. 
 
 in questions of general technical inferences, 770. 
 of reasonable time, probable cause, &c., 768-781. 
 when the conclusion in law depends on the conclusion in fact, 772. 
 grounds of decision in absence of legal rules, 775. 
 mixed questions of, in cases of fraud, 784. 
 malice, 785. 
 negligence, ib. 
 reputed ownership, 786. 
 written instruments, ib. 
 LAWS, 
 
 provisions of, 1 
 
 are either preventive or remedial, 2. 
 LEADING QUESTIONS, 
 rule as to, 166. 
 
 in general are not allowed, ib. 
 when allowed, 167-172. 
 
 where witnesses evidently wishes to conceal the truth, ib. 
 or is of necessity adverse, ib. 
 or called to contradict former witness, ib. 
 may be put on cross-examination, 197. See tit. Witness. 
 
 LEGAL EFFECT, 
 
 proof according to, where sufficient, 632. 
 LEGAL PRESUMPTIONS, 
 
 nature and effect of, 741, 747, 775. 
 LETTERS, 
 
 when admissible, 95, 485, 581. 
 
 date of, prima facie evidence of the time when written, 758. 
 except of wife in case of crim. con., 759. 
 
 secondary evidence of, 547. 
 
 evidence against parties,without producing those to which they are answers, 581. 
 
 receipt of, evidence of, 76, 552. 
 
 meaning of, to be ascertained l)y jury when, 730. 
 LETTERS PATENT, 
 
 secondary evidence of, 545. 
 LICENSE, 
 
 ancient, to fish admissible, 94. 
 
 under the sign manual, 293. 
 
 in general, not evidence of matter of fact, 294. 
 
 of the PojJC, effect of, ib. 
 
 whetlier copy admissible, ib. 
 
 from the Crown, secondary evidence of, 548. 
 
 from governor of a colony, ib. 
 
 to trade with enemy, 537.
 
 INDEX. 919 
 
 LIFE, 
 
 presumption of, 7G. 
 LOG-BOOK, 
 
 of man-of-war, admissibility of, 305. 
 
 LONDON, 
 
 books of city of, proof of, 269. 
 
 seal of corporation of, judicially noticed, 740. 
 
 customs of, must be certified to the courts, 736. 
 LORDS, HOUSE OF, 
 
 journals of, of what evidence, 281. 
 
 judgment of, how proved, 282, 389. 
 
 journals of, copy of, printed by printer to Queen or House, sufficient, 382. 
 
 LOST INSTRUMENT, 
 proof of loss, 530. 
 
 search for, 531, 540. 
 execution of, 541. 
 secondary evidence of, 542. See Instniments of Evidence. 
 LUNACY, 
 
 inquisitions of, admissibility of, 379. 
 
 proof of temporary, renders deposition admissible, 410. 
 
 LUNATIC, 
 
 competency of, as a witness, 114, 410, 512, n. 
 
 depositions of temporary, admissible, 410, n. 
 MAGNITUDE, 
 
 variance from allegation of, effect of, 626, 630. 
 MALICE, 
 
 when a question of law, 785. 
 when fact of, ib. 
 
 collateral facts admissible to prove, 621. 
 MANNER, 
 
 of giving testimony, observations on, 822. See tit. Witness. 
 
 MAN-OF-WAR, 
 
 log-book of, admissibility of, 305. 
 
 MANOR, 
 
 custom of, proof of, by reputation, 47. 
 boundary of, how proved, 49, 63. 
 whether of ancient demesne, how proved, 284. 
 proof of, by ancient surveys, 287. 
 MAP, 
 
 ancient, when evidence, 284-288. 
 
 of private estate, when admissible, 472. See tit. Surveys, 
 MARRIAGE, 
 
 proof of, 297. 
 
 statutes relating to registration, of, 
 26 Geo. II. c. 33, ib. 
 52 Geo. III. c. 146, ib. 
 4 Geo. IV. c. 76, 297. 
 6 & 7 Win. IV. c. 86, ib. 
 3 & 4 Vict. c. 92, 300. 
 sentence of Ecclesiastical Court as to, effect of, 371. 
 nullity of, sentence of, when conclusive, 375. 
 jactitation of, sentence in suit for, not conclusive, ib. 
 
 nor evidence, except inter partes, ib. 
 divorce, sentence of, when admissible, 393. 
 alimony, decree for, when admissible, ib. 
 MARTIAL, COURT, 
 
 sentence of, effect of, 371, n. 
 
 attendance of witnesses at, 109. See Court Martial. 
 
 MEASURE OF EVIDENCE, 
 
 interference by law, as to, 733.
 
 920 INDEX. 
 
 MEDIATE EVIDENCE, 
 kinds of, 43, 53. 
 
 confession by party, 50. 
 
 declaration accompanying act, 51. 
 
 principle of admission, 51, 55, 61. 
 mediate secondary evidence, 53. 
 
 generally excluded, and why, 55, 61. 
 
 in what cases admissible, 61. See Evidence — Instruments of Evidence. 
 MEMORANDUM, 
 
 may be referred to, to refresh memory, 177. 
 
 and used, although witness has no recollection of the facts, 178. 
 need not be contemporary with the fact, 179. 
 
 nor written by the witness himself, 180. 
 must be the best evidence the case admits of, 182. 
 mere copy of a writing not admissible, ib. 
 
 nor of a memorandum, except original lost, 183. 
 opposite counsel may inspect and cross-examine upon, 184. 
 where witness has no recollection independently of the writing, it must be pro- 
 duced, ib. 
 MEMORY OF WITNESS, 
 may be refreshed, 177. 
 
 how, 177-184. See tit. Memorandum. 
 
 MERCANTILE CONTRACT, 
 
 parol evidence to explain written, admissibility of, 701-710. See tit. Parol Evi- 
 dence. 
 MERE LAW, 
 
 presumption of, 747. 
 MIDWIFE, 
 
 entry by, admissibility of, 65, 475. See tit. Hearsay. 
 
 MINISTER, 
 
 not privileged to withhold confidential communication, 40. 
 
 MIRACLE, 
 
 Mr. Hume's doctrine on the subject considered, 833, n. 
 
 MISDIRECTION, 
 
 effect of, and of waiver of, 801. 
 
 MISTAKE, 
 
 instrument, may be explained by parol evidence, when, 675. 
 
 MODUS, 
 
 evidence of, 49. See tit. Tithes. 
 MORAVIAN, 
 
 affirmation of, allowed, 32, n. 
 MUNICIPAL LAW, 
 
 objects of, 1. 
 
 provisions of, 2. 
 MUTINY ACT, 
 
 examination under, 295, ?j 
 MUTUALITY, 
 
 when essential to admissibility of evidence, 321. See tit. Evidence. 
 NAVY OFFICE, 
 
 register of, when evidence, 305. 
 NEGATIVE EVIDENCE, 
 
 proof of, on whom incumbent, 588-590. 
 NEGLIGENCE, 
 
 a question of fact, 785. 
 NEW TRIAL, 
 
 grounds for, 1 1, 799, 
 
 misdirection of judge, 799. 
 rejection of evidence, 800. 
 admi.ssion of improper evidence, ib.
 
 INDEX. 921 
 
 NEW T'RlAJj.—Condmied. 
 
 mistake of jury, 802. 
 excessive damages, 804. 
 
 after acquittal, 805. 
 NONSUIT, 
 
 practice as to, 806-810. 
 NOTICE, JUDICIAL, 
 
 of what matters, taken, 73.5-739. See tit. Judicial Notice. 
 NOTICE TO PRODUCE, 
 
 when necessary, 554. 
 
 time of giving, 555. 
 
 mode of giving, 557, 559. 
 
 from of, 559. 
 
 service of, may be proved by affidavit, App. 
 
 insufficient, effect of, 113. 
 
 when unnecessary, 561-564. See tit. Instruments of Evidence. 
 NUMBER, 
 
 variance from allegation of, effect of, 627. 
 
 of witnesses, observations as to, 827. 
 
 effect of, in measuring force of testimony, 828. 
 
 OATH, 
 
 obligation of, one great test of truth, 22, 29. 
 
 who may take, 29. 
 
 in what it consists, 29. 
 
 form of, 30. 
 
 by Jew, ib. 
 by Turk, ib. 
 
 by Scotch Covenanter, 31. 
 by Gentoo, ib., n. 
 must be that which the witness holds to be most binding, 30, 31, n. 
 rank or age does not exempt from taking, 33. 
 must be judicial, 31. ' 
 
 and administered in open court, ib. 
 persons exempted from taking, 29, 32. 
 OBJECTION, 
 
 to admissibility of witness, when and how to be taken, 113. See tit. Witness. 
 OFFICE COPY, 
 
 when admissible in evidence, 260-265. 
 of depositions, 295. See tit. Copy — Instruments of Evidence. 
 OFFICER, PUBLIC, 
 
 entrj' by deputy of, when admissible, 457. 
 OFFICIAL COMMUNICATIONS, 
 
 when excluded on grounds of state policy, 41, 191. 
 when admissible, 42. 
 OMISSION, 
 
 to produce evidence, presumption from, 75. 
 to plead matter, effect of, 342, n. 
 to traverse allegations in pleadings, effect of, 451. 
 OMNIA RITE ESSE ACTA, 
 a legal presumption, 757. 
 ONUS PROBANDI, 
 
 general rule as to, 585. 
 
 lies on the party who alleges the affirmative, ib. 
 
 or who has peculiar means of knowledge, 589, 590. 
 but not where the negative involves a criminal omission, 593. 
 when the law presumes the affirmative, ib. 
 on issue in plea in abatement, 599. 
 
 on appeals in orders of removal, bastardy, and poor's rate, 595. See tit. Evidence. 
 OPINIONS, 
 
 on questions of skill and judgment, admissibility of, 96. 
 when inadmissible, 176. See tit. Evidence. 
 53
 
 922 INDEX. 
 
 ORAL EVIDENCE, 
 
 priority of, consideration of, 102. 
 
 of written contract, vvlien excluded, 731. 
 
 to vary, &c., written contract, when admissible, 648. See tit. Parol Evidence. 
 
 ORDEAL, 
 
 abolition of trial by, effect on trial by jury, 7. 
 
 origin of, 13. 
 ORDER, 
 
 of judge, proof of, 449. 
 
 of justices of assize, proof of, ib. 
 ORDER OF PROOF— See Onus Prohandi. 
 
 right to begin, 595-602. 
 
 in case of several issues, 605, 616. 
 ORDINARY, 
 
 certificate by, effect of, 373. 
 OVERSEER, 
 
 books of rates to be kept by, 304. 
 
 register of parish apprentices, to be kept by, ib. 
 
 entries by, admissibility of, 480. 
 OWNERSHIP, 
 
 acts of, effect of, 470. 
 
 PARISH, 
 
 register, when evidence, 296. 
 
 proof of, 302. 
 books of, when evidence, 303. 
 
 boundary of, evidence of, 50, 283. See tit. Boundary. 
 PARLIAMENT, 
 
 rolls of, admissibility of, 97. 
 
 member of, not examinable as to what has passed in, 193. 
 
 public acts of, proof of, 273. 
 
 private, 276. 
 recitals in acts of, 278. 
 journals of, evidence of, 281. 
 book of, entries in, 295. 
 prorogation of, judicial notice of, 736. 
 
 PAROL EVIDENCE, 
 
 independent force and effect of, 716. 
 
 general rule respecting, 728. 
 
 when admissible in conjunction with written, 728, 730. 
 
 with reference to written, 648. 
 not admissible to supersede written instrument, 649. 
 
 to supply a defect, &c., ih. 
 
 nor to remove apparent ambiguity, 653. 
 
 nor to contradict or vary written instrument, 648, 655. 
 
 nor to extend or limit terms of written agreement, 657. 
 
 nor to alter legal operation of agreement, 666. 
 
 nor to alter terms of will, 668. 
 
 nor to explain intention of testator, ih. 
 
 nor to vary legal construction of will, ih. 
 but admissible to disprove instrument in case of fraud, 671, 672. 
 
 by showing its illegality, 674. 
 
 to j)rove mistake, 675. 
 
 to discharge a written instrument, 678. 
 
 in aid of written evidence, ih. 
 
 to establish it or apply its terms, 679. 
 
 to remove latent ambiguity, 652, 679. 
 
 to show whether [)arcel or not, 694. 
 
 to explain ancient ciiarters, 695-700. 
 
 hut not when the language is plain, 698. 
 
 to explain mercantile contracts, 701-710. 
 
 to annex customary incidents, 710. 
 
 to rebut a presumption, 712.
 
 INDEX. 923 
 
 PAROL EYWENCE— Continued. 
 
 whether admissible to explain private deeds, 700. 
 
 to show the state and circumstances of a testator, *i\5. 
 
 to determine the meaning of his words, 716. 
 when written evidence has operation e.xclusive of, 717. 
 
 matters of record, ib. 
 when not, 718. 
 collateral memorials, ih. 
 when inconclusive inter partes, 720-725. 
 
 when against strangers, 725. 
 when conclusive, 72G. See tit. Evidence — Hearsay. 
 
 PARTIAL PROOF, 
 
 when sufficient, 626. 
 
 when insufficient, 628. 
 PARTIES, 
 
 admissible as witnesses, 127, 139. 
 
 admissions bj', 50, 85, 459, 505. 
 
 when judgment admissible between, 319, 323. 
 
 when judgment in rem conclusive against, 385. 
 
 identity of, proof of, 324. 
 
 claiming in privitj', 326. 
 
 mutuality of, 331. 
 
 depositions affecting, 412. 
 
 what facts conclusive between, 720. See tit. Interest — Judgments. 
 
 PARTNERSHIP, 
 
 presumption of continuance of, 76. 
 notice of dissolution of, 280. 
 PARTY, 
 
 to suit how competent and compellable to give evidence (14 k 15 Vict. c. 99), 
 
 140, App. 
 husband and wife of, not admissible as a witness, 142. 
 
 unless also a party to the suit, ib. 
 admissions by, effect of, 50, 85, 459. 
 
 good evidence of contents of writing, 505. 
 declarations by, against his interest, 64. 
 entries by, 64, 474. 
 when bound by judgment, 385. 
 not allowed to discredit his own witness, 244. 
 
 but in some cases to contradict him, 235, 244-251. 
 PEDIGREE, 
 
 admissibility of declarations of relations in proof of, 45, 62, 63, 188. 
 post litem motam, 190. 
 
 of reputation, traditionary evidence respecting, 45, 190. 
 mere extract from records of Herald's College not admissible, 312. 
 proof of, by special verdict, 387. 
 not provable by bill in Chancery, 439. 
 when depositions are evidence of, ib. n. 
 PEER, 
 
 cannot give evidence without being sworn, 33. 
 writ of summons to, proof of. 282. 
 PERAMBULATION. See Boundary/. 
 when evidence of boundary, 50. 
 
 PHYSICIAN, 
 
 not allowed to withhold confidential communication by patient, 40. 
 
 PLACE OF DEPOSIT, 
 
 what to be considered a proper, for ancient document, 291, 524. See tit. An- 
 cient histruments — Deeds, ^'c. 
 PLEADINGS, 
 
 necessity for, 2. 
 
 office of, 3. 
 
 admissibility of, 449.
 
 924 INDEX. 
 
 TLEXm'iiGS— Continued. 
 
 allegations in one count, not admissions for different purposes, 450. 
 
 admissions in, effect of, 450, 639. 
 
 what admitted by, 451, 641. 
 POLICY OF INSURANCE, 
 
 proof of loss of, 537. 
 
 POLICY, PUBLIC, 
 
 exclusion of evidence on grounds of, 39, 112, 192. 
 in the case of husband and wife, 39, 141, 142. 
 proceedings before the grand jury, 193. 
 confidential communications, 40. 
 official communications, 42, 192. 
 evidence respecting map of the Tower, ib. 
 minutes taken before the privy council, 42. 
 
 POLL BOOKS, 
 
 admissibility of, in evidence, 308. 
 may be proved by sworn copy, 269. 
 
 POPE, THE 
 
 admissibility of bull of, 294. 
 license of, ib. 
 
 PORTS, 
 
 ancient survey of, evidence by, 285. 
 
 POSITIVE TESTIMONY, 
 
 effect of, as compared with negative, 867. 
 
 comparison of, with circumstances, 872. See tit. Evidence. 
 
 POST, 
 
 sending letter by, presumption from, 75, 552. 
 
 POSTEA 
 
 when evidence without the judgment, 390, n. 
 production of, is proof of trial, 430. 
 
 POST LITEM MOTAM, 
 
 objection of, to hearsay evidence, 190, 421, 
 POWER OF ATTORNEY, 
 
 proof of execution of deed under, 510. 
 
 PRACTICE, 
 
 upon trial of an action, 585. 
 
 order of proof, 595. 
 
 arguments of counsel, 610. 
 PREPONDERANCE, 
 
 of evidence, when sufficient, 818. See tit. Evidence. 
 
 PRESUMPTIONS, 
 
 general observations on, 77. 
 
 definition of, 80. 
 
 necessity for recourse to, 46, 70. 
 
 foundation of, as to motives, ib. 
 
 kinds of, 742. 
 
 legal, need not be proved, 741. 
 
 artificial, 100, 742. 
 
 immediate and mediate, 744, 
 
 of mere law, 747. 
 
 conclusive and inconclusive, 748. 
 
 nature of artificial and conclusive, ib. 
 
 of artificial but inclusive, ib. 
 of law and fact, 101, 749. 
 natural, 751. 
 
 in favor of innocence, 75, 753. 
 omnia rit^ esse acta, 757. 
 from length of time, 74, 521. 
 of continuance, 76, 760. 
 from conduct, 71, 762.
 
 INDEX. 925 
 
 TRESVM?Tl01<i— Continued. 
 
 conirnon experience, ib. 
 
 course of dealing, 75, "763. 
 as to intention, 70, 849. 
 from reputation, 46. 
 
 that a man will consult his own interests, 845. 
 as to execution of instrument, 521, 570. 
 
 arising from instrument may be rebutted by parol evidence, when, 712. 
 what, noticed by the courts, 735. See tit. Judicial Notice. 
 
 PRESUMPTIVE EVIDENCE, 
 definition of, 741. 
 includes all evidence which is not positive and direct, ib. See tit. Evidence. 
 
 PRIMA FACIE EVIDENCE, 
 
 distinguished from conclusive, 819. 
 
 plaintiff must adduce some, in support of every essential allegation, 735. 
 PRINCIPAL, 
 
 guilt of, may be controverted by accessory, 367, 385. 
 
 conviction of, not conclusive against accessory, 726. 
 
 PRINCIPLES OF EVIDENCE, 
 
 general division of, 15. See tit. Evidence. 
 PRISON, 
 
 books, admissibility of, 308. 
 PRISONERS, 
 
 witnesses for, formerly not sworn, 14, 106. 
 but are now to be sworn, 33. 
 
 attendance of, as witnesses, how procured, 104. 
 
 witnesses for, attendance of, how procured, 106. 
 PRIVATE WRITINGS, 
 
 operation in evidence of, 458, 498. 
 
 construction of, 700. See tit. Instruments of Evidence. 
 
 PRIVILEGED COMMUNICATIONS, 
 
 what are, and rule respecting, 40, 193. 
 PRIVITY, 
 
 of the party to be affected by document, when necessary, 310, 324, 443. 
 PROBABILITY, 
 
 from coincidence of independent circumstances, 853. See tit. Evidence. 
 PROBABLE CAUSE, 
 
 evidence as to existence of, 781. 
 
 question of, is one of law, 782. 
 PROBATE, 
 
 provable by copy, 269, 395. 
 
 when conclusive evidence, 339, 374. 
 
 when not conclusive, 339. 
 
 when it does not rebut forgery, ib. 
 
 PROBATIO INARTIFICIALIS, 
 
 of the Roman law, 611. 
 PROCLAMATION, 
 
 public, what evidence of, 279. 
 PRODUCE, NOTICE TO, 
 
 on whom and when to be served, 554. 
 
 what sufficient, 557, 559. 
 
 when unnecessary, 561. 
 
 service of, may be proved by affidavit, App. 
 
 PRODUCTION, 
 
 of documents, by third person, how enforced, 110-113. 
 when essential to proof of, 449. 
 where impossible, 540. 
 
 cannot be evaded by transfer after notice, 553. 
 by party, how enforced to inspect, and stamp, App.
 
 926 INDEX. 
 
 PROOF, 
 
 definition of, 12. 
 
 on wliom incumbent, 585. 
 
 general division of, 584. 
 
 partial, 626. 
 
 order of, 605. 
 
 to be confined to the issue, 617. See tit. Evidence. 
 
 PROTECTION OF WITNESS, 
 from arrest, 113. 
 from self-crimination, 41, 204. See tit. Wihiess. 
 
 PROTESTATION, 
 
 in pleading, effect of, 451. 
 PUBLIC ACTS, 
 
 of the crown, admissibility of, 283. 
 
 of parliament, judicially noticed, 274. See tit. Acts of Parliament. 
 
 PUBLIC DOCUMENTS, 
 
 kinds of, 255-316. 
 
 proof of, 296-316. 
 
 Stat. 8 & 9 Vict. c. 113, 296. See tit. Instruments of Evidence. 
 PUBLIC HISTORIES, 
 
 admissibility of, 97, 314. 
 QUAKERS, 
 
 affirmation by, 32. 
 
 QUALITY OF EVIDENCE, 
 
 general rule that the best must be adduced, 641. 
 nature of the rule, 643. 
 when it applies, 644. 
 exceptions to it, 647. 
 QUANTITY OF EVIDENCE, 
 
 observations on, 733. See tit. Evidence. 
 QUEEN'S BENCH, 
 
 books in prison of, 308. 
 
 in master's office of, 309. 
 
 QUEEN'S CASE, THE, 
 
 references to, 216, 232, 238. 
 
 QUO WARRANTO. 
 
 eff'ect of judgment upon, 384. 
 RATES, 
 
 copies of, where to be kept, 304. 
 READING, 
 
 of documents, rules as to, 579, 583, 
 
 REASONABLE TIME, 
 
 whether question of law or fact, 768. 
 instances, 768-776. 
 RECITAL, 
 
 of facts, observations on, 91. 
 in Act of Parliament, when evidence, 278. 
 in deed, effect of, 577. 
 of authority in instrument, eff'ect of, 583. 
 RECORD, 
 
 admissibility of, 97. 
 proof of, 257. 
 
 by production, ib. 
 
 by exem])lification, ib. 
 
 \\y copy by .authorized officer, ib. 
 
 by office or examined copy, ib. 
 
 liow proved when lost, 271. 
 
 when conclusive, 98. 
 
 when it operates as an estoppel, 365.
 
 INDEX. 927 
 
 RECORD— Continued. 
 
 how impeached, 400. 
 
 necessity for, 625. See tit. Instruments of Evidence. 
 
 RECORD OFFICE, 
 
 established under 1 & 2 Vict. c. 94, 255. 
 
 copies under seal of, admissible, 256 n., 263 n. 
 RECTOR, 
 
 entry by, of receipt of tithes, admissibility of, 476. 
 
 REDUNDANCY, 
 
 of proof, effect of, 632. See tit. Evidence. 
 
 RE-EXAMINATION, 
 
 of witness, 230. 
 
 what questions may be asked on, 231-236. See tit. Witness. 
 REFRESHING MEMORY, 
 
 means allowable for, 177-184. See tit. Memory — Slemoranduvi. 
 
 REGISTERS, 
 
 public, are evidence, 296. 
 
 of births, marriages, &c., 297. 
 
 Stat. 3 & 4 Vict. c. 92, 300. 
 
 what evidence of, under the statute, 301. 
 of foreign marriages, 300. 
 
 Stat. 12 & 13 Vict. c. 68, 302. 
 of Fleet Prison, 299. 
 of dissenting congregation, 300. 
 not evidence of identity, 299. 
 
 nor of marriage, ib. 
 of place of birth, when, ib. 
 entry in, how proved, 302. 
 of a bishop, 309. 
 of parish, 303. 
 of navy office, 305. 
 of ship, 310. 
 proof of, by copy, 269. 
 declaration of loss of, admissibility of, 535. See tit. Birth — Burial — Marriage, ^-c. 
 
 REMOVAL, &c., ORDERS OF, 
 
 conclusive as to facts stated, 383. 
 
 REPLEVIN, 
 
 wife of landlord in, when admissible, 133. See Interest. 
 REPLY, 
 
 evidence in, 608. 
 
 right to, 609. 
 REPOSITORY, 
 
 of ancient instruments, proof as to, 291, 524. See Ancient Instruments. 
 REPRISALS, 
 
 proof of proclamation for, 279. 
 
 REPUTATION, 
 
 general principles of admissibility of evidence of, 43, 191. 
 on what questions admissible, 47, 186. 
 
 character, 44, 75. 
 
 pedigree, 45, 62, n., 188, 190. 
 
 rights of common, 48, 187. 
 
 boundary, 49, 186. 
 
 modus, 49. 
 
 customary rights, 187, 386. 
 
 tithes, tolls, <fec., 188. 
 
 highways, 188. 
 essentials to its reception, ib. 
 facts to be proved must be of public nature, 47. 
 
 must be general, 49. 
 
 must be supported by proof of enjoyment, 50.
 
 928 INDEX. 
 
 REPUTATION— Continued. 
 
 inadmissible to prove a private prescription, 48. 
 deposited wlien admissible as, 422. See tit. Hearsay. 
 
 REPUTED OWNERSHIP, 
 
 rather a question of fact than of law, 780. 
 
 RES GEST^, 
 
 in general evidence for jury, 78. 
 
 admissibility of declarations and acts as part of, 89. See tit. Evidence. 
 
 RES INTER ALIOS ACT.E, 
 
 evidence of, inadmissible, 36. 
 principles of the rule, 81. 
 
 effect of the rule, 81, 85. 
 does not exclude admissions or acts of party, 85. 
 
 nor entry by dead party against his interest, 64, 474. 
 nor operations of general laws nor customs, ib. 
 nor facts which have a legal operation on the question, ib. 
 nor memoranda nor declaration which on other grounds are evidence, 86. 
 when admissible, as evidence of reputation, ib. 
 as part of the res gestm, ib. 
 as collateral facts, 90. 
 judgment on quo warranto, when evidence, 384. See tit. Evidence. 
 RETURN, 
 
 by sheriff, effect of, 437. 
 RIGHT, 
 
 legal acceptance of the term, I, n. 
 popular acceptation of it, ib. 
 RIGHT TO BEGIN, 
 
 rules as to, 595, 605. 
 ROMAN LAW, 
 
 provisions of, as to pleading, 4, 5. 
 RULES OF COURT, 
 
 admissibility of, 449. 
 SCOTLAND, 
 
 effect of judgment in courts of, 346, 402. 
 
 SEAL, 
 
 exemplifications under, proof by, 258. 
 of public corporate body, proof of, 457. 
 admission under, effect of, 459. 
 to deed, proof of, 509. 
 of what, judicial notice is taken, 739. 
 of what, not, 740. 
 SEAMAN, 
 
 death of, proof of, 305. 
 
 attendance of, as witness, how procured, 105. 
 
 SEARCH, 
 
 for lost instrument, evidence of, 531-540. 
 
 SECONDARY EVIDENCE, 
 
 princlijle of admissibility, 53. 
 
 of exclusion, 39, 56. 
 no degrees of, 544. 
 when admissih)le, 61. 
 
 dejjositions, ib. 
 
 traditionary evidence, 62. 
 
 declarations and entries, 64. 
 
 entries by strangers, 463. 
 
 presumptions, 70. 
 
 circumstantial evidence, 77,80. 
 
 hearsay, 185, 191. 
 
 reputation, 180. 
 of written instruments, 542.
 
 INDEX. 929 
 
 SECONDARY EYWENGE— Continued. 
 
 of lost instruments, 545. 
 
 of a deed, examined copy of a registry by, ib., n. 
 
 of endowments, by chartulary of an abbey, 546, 549. 
 
 of modus, 549. 
 
 of grant, ib. 
 
 of will, by copy from prerogative office, 547. 
 
 of settlement, by old attested copy, ib. 
 
 of manorial customs, by copy of old decree, ib. 
 
 of letter, by entry in clerk's letter-book, ib. 
 
 of license from the Crown, by Secretary of State's registry, ib. 
 
 of marriage articles, by recitals in case submitted to counsel, 550. 
 
 of grant, by ancient parchment produced by adversary, ib. 
 
 of assignment before entered of record, ib. 
 
 of instruments in possession of adversary, 551-571. 
 
 or persons in privity with him, 553. 
 
 after notice to produce, 554. See tit. Notice to Produce. 
 of instruments, by admissions, 571. 
 
 by enrolment, 573. 
 
 by recital, 577. 
 how it differs from defective, 731. See tit. Evidence — Instruments of Evidence. 
 
 SECRETARY, 
 
 of State, book of, provable by copy, 270. 
 
 of bankrupts, book of, admissibility of, 310. 
 SENSE, 
 
 of written instruments not to be altered by parol evidence, 463. See tit. Parol 
 Evidence. 
 SENTENCE, 
 
 of expulsion from college, proof of, 371. 
 
 of deprivation by visitor, ib. 
 
 of Spiritual Courts, admissibility and effect of, 373, 393, 417. 
 
 SEPARATE EXAMINATION, 
 
 of witnesses, when allowed, 199. See tit. Witness. 
 SESSIONS, 
 
 orders of, effect and proof of, 383. 
 SHERIFF, 
 
 return by, effect of, 437. 
 SHIP, 
 
 registry of, when evidence, 310. 
 
 books of, 305, 310. 
 SIGN MANUAL, 
 
 of king, certificate under, 293, 294. 
 
 noticed judicially, 740. 
 SKILL AND JUDGMENT, 
 
 evidence on questions of, 96, 173. See tit. Evidence — Witness. 
 
 SPECIAL PLEADINGS, 
 
 object of, 2, 3. 
 
 admissibility of, 449. 
 
 admissions in, 450, 639. 
 SPECIAL VERDICT, 
 
 conclusive as to facts of the case, 11. 
 
 should find facts, not evidence merely, 765. 
 SPIRITUAL COURT, 
 
 jurisdiction of, 37. 
 
 sentences of, admissibility of and eflfect of, 373, 393. 
 
 depositions taken in, 417. 
 STAGE COACH, 
 
 proof of ownership of, 311. 
 STAMP, 
 
 proper, essential to admissibility of instruments, 503.
 
 930 INDEX. 
 
 STATE, ACTS OF, 
 
 proof of, 2V9, 281. 
 STATUTE, 
 
 public, requires no proof, 274. 
 
 private, must be proved, 276. 
 
 copy by Queen's printer to be judicially noticed, 278. 
 
 recital in, effect of, ib. See tit. Act of Parliament. 
 STATUTES, 
 
 6 & 7 Vict., c. 85, 25, 125, App. 
 
 14 & 15 Vict., c. 99, 26, 135, App. 
 
 15 & 16 Vict., c. 76, s. 117, 118, 119, 222, App. 
 STEWARD, 
 
 entries by, against his interest, admissibility of, 65, 474, 479, 481. See tit. 
 Entries. 
 STRANGERS, 
 
 declarations by, excluded, 81, 463. 
 acts of, excluded, 82. 
 
 effect of the rule, 84. See tit. Res inter alios actse. 
 SUBPffiNA, 
 
 writ of 103. See tit. Witness. 
 SUBPCENA DUCES TECUM, 
 writ of, 110. 
 
 what must be produced under, ib. 
 witness not compelled to produce documents which may criminate him. 111. 
 
 nor title deeds to his estate, ib. 
 attorney not to produce client's title deeds, ib. 
 witness bound in other cases to produce writing, 112. 
 
 duty of, to be prepared with, ib. 
 obligation to produce, is matter of law, ib. 
 
 disobedience of, does not warrant reception of secondary evidence, ib. 
 except in cases of fraud, 113. See tit. Witness. 
 SUBSTANCE AND LEGAL EFFECT, 
 
 proof according to, when sufficient, 642. 
 
 SUMMONS, 
 
 essential to justify conviction, 402. 
 SUMS, 
 
 variance in, effect of, 630. 
 SURETY, 
 
 evidence for, in action against, 321, n. 
 
 endorsement by deceased payee of promissory note of payment by one of the 
 makers, admissible against surety, 476. 
 
 entries by banker's clerk in books kept by him, admissible after his death 
 against his surety, 481. 
 SURGEON, 
 
 not allowed to withhold confidential communication by patient, 40. 
 
 SUPERIOR COURTS, 
 
 seals of, noticed judicially, 739. 
 SURPLUSAGE, 
 
 rule as to, 531, 626. See tit. Evidence. 
 SURVEY AND MAPS, 
 
 proof by, 284 288. 
 
 ancient, taken under authority, ib. 
 
 Domesday book, 284. 
 
 of the ports, 285. 
 
 valor benejlciorum, ib. 
 
 survey stat. 21 Hen. VIIL, 285. 
 
 from first fruits' office, 285, 286. 
 
 by order of House of Commons, 286. 
 
 iri()iiisitions by, as to fees, 287. 
 
 under public commission, ib. 
 
 ancient extents of crown land, ib.
 
 INDEX. 931 
 
 SURVEYS AND UAVS. —Continued. 
 of crown and church land, ib. 
 private, of estates, when admissible, 472. 
 of manor, 473. 
 
 TENANT, 
 
 declaration by, admissibility of, 65, 487-492. 
 
 TERRIERS, 
 
 admissibility of, to prove old tenures, and boundaries, 289. 
 
 proof of, ih. 
 
 as to place of deposit, 291. 
 
 ecclesiastical, admissibility of, to prove possessions of the church, 290, 283. 
 
 effect of, in evidence, 291. 
 
 TESTATOR, 
 
 intention of, parol evidence of, not admissible to vary terms of will, 667. 
 
 TESTIMONY, 
 
 degrees of, 21, 817. 
 
 force of, 832. 
 
 positive and negative, 867. 
 
 rejection of, 873. 
 
 bill to perpetuate, 427. 
 
 character of, 831. 
 
 credibility of, 838, n. See tit. Evidence. 
 
 TESTS, 
 
 of the admissibility of evidence, 18. 
 excluding, necessity for, ib. 
 
 TIME, 
 
 allegation of, effect of variance from, 625, 630. 
 presumption from lapse of, 742, 760. 
 
 TITHES, 
 
 evidence of modus, 49. 
 
 by terriers, in suits for, 281, 293. 
 decree for, proof by copy, 272. 
 entry by deceased rector of receipt of, 476. 
 
 TITLE DEEDS, 
 
 admissibility of, in evidence, 472. 
 person not compelled to produce his. 111. 
 attorney not to produce title deeds of client, ib. 
 
 TORT, 
 
 right to begin in action of, 598. 
 
 TORTURE, 
 
 not resorted to by the Anglo-Saxons, 13. 
 allowed by the Roman law, 41. 
 
 TRADITIONARY EVIDENCE, 
 when admissible, 49, 62, 190. 
 
 must be derived from persons likely to know the facts, 62. 
 must be free from suspicion, ib. 
 when it must be supported by enjoyment, 50, 63. See tit. Hearsay. 
 
 TRIAL, 
 
 mode of, 4. 
 
 postponement of, in absence of material witness, 109. 
 
 in order that the child may be instructed, 117. 
 order of proof at, 595. 
 
 TRIAL BY JURY, 
 
 origin of, 5, 8. 
 
 advantages of, 6-10. 
 
 observations on, 811. See tit. Jury.
 
 932 INDEX. 
 
 TRUTH, 
 
 tests of, 13, 14. 
 
 natural and artificial, 15. 
 obligations of oath, 22. 
 cross-examination, 34. 
 UNBELIEF, 
 
 of witness, how far ground of exclusion, 113. 
 
 UNIVERSITY, 
 
 public books of, proof by, 270. 
 VALOR BENEFICIORUM, 
 
 admissibility of, in evidence, 285. 
 
 efifect of, ib. 
 VARIANCE, 
 
 general principles respecting, 624. 
 
 inferences from them, 631. 
 
 surplusage, 626. 
 
 cumulative allegations, ib. 
 
 partial proof, 626, 627. 
 as to damage, number, magnitude, extent, &c., ib. 
 
 redundant evidence, 631. 
 
 descriptive allegations not divisible, 628, 630. 
 when descriptive, ib. 
 
 reconcilement of variances by amendment, 632. 
 statutes relating to amendment of, 633-637. App. 
 in testimony, effect of, 830. 
 
 VERDICT, 
 
 what is essential to, 10. 
 
 not conclusive in general as to truth of facts, 98. 
 in civil proceeding, whether evidence in criminal, 332. 
 in criminal cases, when admissible, 361. 
 between private parties, 333. 
 in personal action, when a bar, ib. 
 how proved, 388. 
 
 party cannot show that it was entered by mistake, 403. 
 compounded of law and fact, 584. 
 
 special, must find facts, not evidence merely, 765. See tit. Instruments of Evi- 
 dence — Judgments. 
 
 VISITOR, 
 
 sentence by, proof and effect of, 371. 
 VOIRE DIRE, 
 
 examination on, of witaess, 157, 160. See tit. Witness. 
 
 WAR, 
 
 evidence of, war, what, 279, n. 
 
 WARRANT, 
 
 admissibility of, in evidence, 435. 
 recital of authority in, effect of, 583. 
 WIFE, 
 
 cannot be witness for or against her husband, 39, 138, 494, 512, n. 
 unless a party to the suit, 142, App. 
 except in the County Courts, 39, 139. 
 
 cannot be a witness for or against her husband in criminal case, 39, 141, 
 App. 
 how far admissible for a person indicted with her husband, 139. See fit. 
 Husband and Wife — Interest. 
 WITNESS, 
 
 attendance of, how enforced, 103. 
 
 in i)rocecdings before justices, 107. 
 
 at sessions, ib. 
 
 Stat. 11 & 12 Vict. c. 42, ib. 
 
 in bankruptcy, 108. 
 
 I
 
 INDEX. 933 
 
 WITNESS— Con?2WMcc?. 
 
 insolvency, 108. 
 
 County Courts, ib. 
 
 courts martial, 109. 
 
 arbitration, ib. 
 
 inclosure, &c., commissioners, ib. 
 
 by subprena, 103. 
 expenses of, ib. 
 liability of, for neglecting to attend, 103. 
 
 on attacliment, 104. 
 
 on action, ib. 
 process when in custody, ib. 
 
 or under restraint, ib. 
 habeas corpun ad testificandum, 104. 
 in criminal cases, 105. 
 binding by recognizance, ib. 
 
 Stat. 11 & 12 Vict. c. 42, ib. 
 
 by coroner, ib. 
 in case of a feme covert, ib. 
 
 ■when residing in ditterent part of the kingdom, ib. 
 for defendants and prisoners, lOG. 
 such witnesses to be sworn, 33. 
 
 course of proceeding where attendance of, cannot be procured, 109. 
 where witness resides, or is going abroad, or is ill, 110. 
 attesting., when he must be called, 503. 
 
 if not to be found, 512. 
 subpoena duces tecum, writ of, ib. See tit. Subpoena duces tecum. 
 
 effect of, 110-112. 
 
 disobedience to, does not warrant reception of secondary evidence, 112. 
 obligation of, to be sworn, 113. 
 
 to answer questions, ib. 
 
 protection of, to what cases extended, ib. 
 objections to competency o£, ib. 
 
 when to be taken, ib. 
 for want of religious belief, 116. 
 
 in the case of children, 117. 
 
 infamy of character, ib. 
 
 from interest, 118. See tit. Interest. 
 
 Stat. 3 & 4 Will. IV. c. 22, 122-124. 
 
 Stat. 6 & 7 Vict. c. 85, 125-129, App. 
 
 Stat. 14 & 16 Vict. c. 99, 140, App. 
 
 in cases of adultery and breach of promise, 141. 
 
 privilege of, as to matters of professional confidence, 40, 184. 
 
 of political confidence, 41, 191. 
 examination of, in chief, how conducted, 166. 
 
 may be examined apart, 199. 
 
 leading questions, rule as to, 166, 199. 
 
 what are leading questions, and when allowed, 166-172. 
 as to what examinable, 172. 
 
 knowledge, belief, judgment, &c., 96, 173. 
 
 hearsay, rejiutation, &c., 185-191. 
 may refresh his memory, 177-184. See tit. Memory. 
 cross-examination of, 194. 
 
 one great test of truth, 195. 
 - who may be cross-examined, 196. 
 
 practice as to, 196-198. 
 
 as to collateral facts, 200, 203. 
 
 with a view to discredit, 207, 236. 
 bound to answer questions, although they may subject him to civil responsi- 
 bility, 203. 
 
 but not when they may subject him to penalties, 204. 
 
 nor to criminate himself, 41, 140, 204. 
 whether bound to answer questions which tend to his disgrace, 206-213. 
 
 where he refuses to answer, 240.
 
 934 INDEX. 
 
 WITNESS— Continued. 
 
 consequences of his answering such questions, 214. 
 as to contents of writing, 198, 216-220. 
 
 whether allowable as a test of credit of witness, 220-228. 
 
 time for reading writing for that purpose, ib. 
 as to depositions, in criminal cases, 229. 
 contradiction of, by contrary evidence, 213-215. 
 re-examination of, 230. 
 
 as to conversation with a party, 232. 
 
 with a third person, ib. 
 re-calling, when allowed, 23G. 
 credit of, how to be impeached by other witnesses, 236, 244-251. 
 
 by general evidence only, 237. 
 
 proper question for the purpose, ib. 
 
 by proof of what he has said or done, 238. 
 
 former statement, liow proved, 241. 
 
 opportunity for explanation, 239. 
 conviction against a party, no evidence of testimony set forth, 243. 
 offer of bribe to, admissibility of evidence of, ib. 
 conspiracy by, to deprive party of means of defence, proof of, 244. 
 a party cannot discredit his own witness, 244. 
 
 exceptions to the rule, ib. 
 credit of may be supported and testimony of, confirmed, 252, 253. 
 examination of, on interrogatories, 433. 
 bill to perpetuate testimony of, 427. 
 integrity of, 820. 
 manner and demeanor of, 822. 
 ability of, 823. 
 number of, 827. 
 consistency of, 828. 
 inconsistency of, 829. 
 
 increase of credibility by number of, 828, 832. 
 effect of conformity of testimony of witnesses, with experience, 832. 
 
 with collateral circumstances, 838. 
 
 WRIT, 
 
 when admissible as evidence, 435. 
 
 effect of, ib. 
 proof of, 437. 
 
 when essential to prove judgment, 436. 
 proof of, when returned, 437. 
 proof of, when not returned, 438. 
 endorsements on, effect of, 437. See tit. Instniments of Evidence. 
 
 WRIT OF EXECUTION, 
 
 not proof of judgment, 437. 
 
 WRITINGS, 
 
 cross-examination of witness as to, 198, 216-220. See tit. Witness. 
 
 WRITTEN INSTRUMENTS, 
 different kinds of, 255. 
 
 of a public, private, or mixed nature, ib. 
 
 judicial or not judicial, 256. 
 
 of record or not of record, ib. 
 Public Documents. 
 
 how procured and proved, 256, 315. 
 records, proof of , of the same court is by production, ib. 
 
 of another court, by certiorari and mittimus, 267. 
 
 of inferior court, by certiorari, ib. 
 
 in criminal cases, ib. 
 
 may be proved by exemplifications, 257-259. 
 
 authorized copies, 260. 
 
 sworn copies, 261,271. 
 copy never admissible wlien the original is produced, 271. 
 lost record, how jiroved, ib. 
 
 I
 
 INDEX. 935 
 
 WRITTRX INSTRUMENTS— Co«//wM€f/. 
 
 not judicial, grounds of admissibility, 272, 273. 
 Acts of Parliament, ib. 
 
 public, require uo proof, 274. 
 
 private proved by copy ])urportin<T to be jirinted by tlie Queen's printers, 277. 
 where printed copy of act incorrect, court will be <ruidedby the parliament roll, (6. 
 recital in Acts of Parliament of facts, when evidence of such facts, 278. 
 acts of state approved by tlie Gazette, 271). See tit. Gazette. 
 foreign acts of state, proof of, 281. 
 
 public documents, printed by the Queen's printers, when evidence, 281. 
 journals of Houses of Parliaments, how far evidence, ib. 
 
 copies of, by the Queen's printers, 282. 
 writ of summons to a peer, proof of, by enrolment, ib. 
 
 public acts of the Crown, affecting its revenues or possessions, evidence of, 283. 
 ancient surveys under authority, 284. See tit. Surveys. 
 inquisitions, 288. 
 terriers, &c., 289. 
 public licenses and grants, 293. 
 certificates by persons in authority, 294. 
 public registers, 290. 
 parish books, 303. 
 
 books and documents of public officers, 305. 
 court rolls, 308. 
 poll bonks, ib. 
 prison books, ib. 
 bank of England books, 309. 
 books in Master's office, ib. 
 bishop's register, ib. 
 corporation books, ib. 
 Chancellor's book, 310. 
 books of clerk of the peace, ib. 
 ship's register, ib. 
 
 stage and hackney coach entries, 311. 
 books in Herald's office, ib. 
 armorial bearings, 312. 
 duchy book, ib. 
 commissioners' books, 313. 
 land tax books, ib. 
 public histories and chronicles, 314. 
 
 Judicial Docdments. See tit. Judgments. 
 
 judgments, decrees, and verdicts, 316-404. ^ 
 inquisitions, depositions, and examinations, 404-435. 
 writs, warrants, pleadings, &c., 435-451. 
 
 Mixed Documents. 
 
 books of public companies, 452, 456. 
 
 Court rolls, ib. 
 
 corporation books, 452, 456. 
 
 Private Docu.ments. 
 
 admissibility of, 458. 
 
 when offered against person who was party or privy to them, ib. 
 
 operate as admissions, 459. 
 effect of seal, ib. 
 operation of, as estoppel, ib. 
 deed poll does not estop lessee or grantee, 461, 
 privies are bcSund by estoppel, 462. 
 title deeds, 412. 
 entries by third persons, 463. 
 
 when admissible, 464. 
 
 accompanying acts, 466. 
 
 against interest of party, 474. 
 
 by stewards, receivers, &c., 479. 
 
 by deceased tenants. 487.
 
 936 INDEX. 
 
 WRITTEN INSTRUMENTS— Co«imM«rf. 
 
 bj^ persons in the course of business, 492. 
 
 by attorneys, 4'J5. 
 proof of private documents, 498. 
 
 production, 499. 
 
 erasure, 500. 
 
 stamp, enrolment, &c., 503. 
 
 legal requisites, ib. 
 
 by attesting witness, 504. 
 
 of sealing of deed, 508. 
 
 of delivery, 509. 
 on denial by attesting witness, 510. 
 absence of attesting witness, 512. 
 
 secondary proof of, in absence of attesting witnesses, 519. 
 proof of, when thirtj' years old, 521. 
 
 custody of ancient documents, 524. 
 where no attesting witnesses, 529. 
 
 where instrument is lost, 530. 
 
 evidence of search, 532. 
 
 by secondary evidence, 542. 
 
 by counterpart, 543. 
 
 by copy, 544. 
 proof of, when in possession of the adversary or privy, 550, 553. 
 
 proof of possession of. by him, ib. 
 
 presumptive evidence of such possession of, 551. 
 
 question of such possession, solely for the judge, 554. 
 notice to produce, proof of, ib. 
 
 on whom, and when to be served, 555. 
 
 if both written and oral, have been given, proof of either sufficient, 557. 
 
 what sufficient, 559. 
 
 when unnecessary, 561. 
 proof of, coming from adversary's possession, 565. 
 proof of, when adversary does not produce it, 568. 
 admission of, under judge's order, 571. 
 notices to admit, when to be given, App. 
 consequences of refusing to admit, ib. 
 proof of, by enrolment, 573. 
 
 by recital in deed, 577. 
 intrinsic objection to, not available, 578. 
 the whole of, when to be read, 597. 
 
 and of document referred to in it, 580. 
 
 if necessary to show its true nature, 582. 
 credit due to whole or part of, to be judged of by jury, 583. 
 sense of, not to be varied by parol evidence, 463, 648. 
 when conclusive evidence, 717. 
 
 when not conclusive, 772. 
 eifect of, as to strangers, 725-728. 
 construction of, matter of law, 786.
 
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