% The; Moak CtoUfeeJifeMJj 
 
 PURCttASED FOR 
 
 The School ©f Law of Cortiell Unlvtrslt^ 
 
 Awd Presented Pebrtiary 14, i%3 
 
 IN riEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE 8CHQOL 
 
 By his Wife and Dauglit«r 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 
 K 681.T24 1878 
 
 V.I 
 
 A treatise on the law of evidence :as ad 
 
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% Cornell University 
 
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 The original of this book is in 
 the Cornell University Library. 
 
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A TEBATISE 
 
 LAW OF EVIDENCE. 
 
 AS ADMINISTERED IN ENGLAND AND IRELAND; 
 
 ■WITH 
 
 ILLUSTRATIONS FROM THE AMERICAN AND OTHER FOREIGN LAWS. 
 
 'V 
 
 SEVENTH EDITION. 
 
 By JOHN PITT TAYLOE, Esq., 
 
 jimor: of the county courts foe lambeth, green^vich, and woolwich. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 Longum iter est per pracepta. 
 
 Breve et efflcax per exempla.— Seneca. 
 
 LONDON : 
 WILLIAM MAXWELL & SON, 29, FLEET STREET, E.G. 
 
 sHato 3SootoUcts anB ^ublisljm. 
 
 MEREDITH, RAY, & LITTLER, MANCHESTER ; 
 
 HODGES, FOSTER, & CO., AND E. PONSONBY, DUBLIN ; 
 
 THACKEB, SPINK, & CO., CALCUTTA; C. F. MAXWELL, MELBOURNE. 
 
 1878. 
 
LOSDOX : 
 BaADBDKT, AGNii\\r, & CO., PRINTERS, -WHITEFRIARS, 
 
PEEFACE TO THE SEVENTH EDITION. 
 
 A DEDICATION in the nineteenth century is an anachronism, 
 or I should be tempted to dedicate this, the Seventh Edition 
 of my Treatise on Evidence, to a very dear friend, at whose 
 pressing instance, and by whose wise advice, I was induced 
 to undertake the arduous task of preparing it, as affording 
 the best means of assuaging very bitter grief 
 
 The labour I have bestowed on the work has been neces- 
 sarily great, partly, because the last Edition of my book has 
 been out of print for an unusual length of time, but, prin- 
 cipally, because the Judicature Acts of 1873 and 1875 have 
 altered the law on so many subjects, and unsettled it to 
 such an extent, that it has become extremely difficult, 
 either to dovetail the old procedure or the old principles 
 with the new, or to determine, in a cloud of cases, by what 
 rules the practitioners and the suitors must henceforth be 
 guided. 
 
 We all know v/hat is the best recipe for spoiling broth ; 
 and, possessing that culinary knowledge, we, perhaps, ought 
 not to marvel, if a colossal scheme of law reform, — sub- 
 jected in the first instance to the criticisms of a multitude 
 
IV I'KEFACB TO THE SEVENTH EDITION. 
 
 of commissioners, (all able and learned men, and some few 
 just a trifle opiniative,) and then entrusted, in succession, 
 to two distinguished Lord Chancellors to obtain for it the 
 piecemeal sanction of the Legislature, — should have failed 
 to achieve that success Avhich its too sanguine originators 
 anticipated from its adoption. 
 
 Regarded in a practical light, either far too much or far too 
 little has been effected by the measure. Commencing in 
 wrangles and progressing in compromises, it has naturally 
 ended in a muddle. The fusion of Law and Equity, — 
 which was to overthrow such a phalanx of abuses, and to 
 frustrate so many knavish tricks, — has resulted, not only 
 in confusion, but, to use the vigorous language of our blind 
 bard, in " confusion worse confounded." It is a humiliating 
 confession — but it is unquestionably true. 
 
 In this most unsatisfactory state of the law I have done 
 my best to make a few " crooked places straight and rough 
 places plain." If I have failed I hope the profession will 
 pardon me — if I have succeeded I know it will generously 
 recognise my exertions. 
 
 My best thanks are due to many kind friends for advice, 
 and especially to Mr. Thomas Geary, of 6, Pump Court, 
 Temple, for his zealous assistance in preparing the Indexes. 
 
 I could have wished that it had been possible for me to 
 incorporate in the text and notes full references to the 
 
PREFACE TO THE SEVENTH EDITION. V 
 
 '•'Supreme Court of Judicature Act, Ireland, 1877," but 
 the exertions of Messrs. Biggar & Co. have rendered- that 
 course impracticable ; and I only hope that those exertions 
 will be duly appreciated in the Four Courts q[ Dublin. 
 
 It is not likely that I shall ever have the energy to revise 
 another Edition. That I have held my position as the 
 expounder of an important branch of the law for thirty 
 years against all competitors is a fair subject for self-gratu- 
 lation, and the very plagiarism to which 1 have been exposed 
 has, in one point of view, gratified me, as being in itself a 
 tacit acknowledgment of the utility of my labours. 
 
 In now laying down my pen I trust I shall not be deemed 
 presumptuous, if I adopt the sentiment of a Scotch Divine, 
 and earnestly repeat after him, — 
 
 " Unthouglit of by man in rewards or in praises, 
 May I be remembered by what I have done." 
 
 J. PITT TAYLOR. 
 
 58, EccLESTON Squaee, 
 28th Jan., 1878. 
 
EXTRACTS FEOM THE 
 
 PREFACE TO THE FIRST EDITION. 
 
 The following Work is founded on "Dr. Greenleaf's American 
 Treatise on the Law of Evidence." Indeed, wlien in July, 1843, 
 my attention was first especially drawn to the subject of Evidence, 
 with a view to publication, I undertook to discharge the duties of 
 an editor only, and it was not until I had been engaged for many 
 months in that undertaking that I finally determined to abandon 
 it, and to submit to the public a treatise of my own. In taking 
 this step, I had no idle hope of being able to produce a book, which, 
 regarded as an exposition of general principles, should surpass, or 
 even equal, that written by the learned American Professor ; but I 
 thought that, by citing more fully the leading decisions of our own 
 Courts, and by introducing such portions of our Statute Law as 
 related to the subject of Evidence, I might possibly compile a work 
 of more practical utility to the English and Irish lawyer. To have 
 introduced this new matter, in the shape of notes to Dr. Greenleaf's 
 Treatise, would have been highly inconvenient ; to have interwoven 
 it with his text, and still to have etoed the work by his name, 
 would have been alike unjust to him and to myself; and, conse- 
 quently, it appeared to me, that the only alternative left was to pub- 
 lish a work in my own name, for the errors of which I should be 
 alone responsible. 
 
EXTBACTS FBOM THE PREFACE TO THE FIRST EDITION. Vll 
 
 I have still, however, availed myself very largely of Dr. Green- 
 leaf's labours, having adopted, with but few alterations, his ex- 
 cellent general arrangement, having followed to a considerable 
 extent the course even of his sections, and having borrowed many 
 pages of his terse and luminous writing. My object has been to 
 afford to the profession really useful and accurate information ; and 
 whether that information were conveyed in my own or in another's 
 language, has been to me, as it will doubtless be to my readers, a 
 matter of indiiference. 
 
 From the American decisions cited by Dr. Greenleaf, I have 
 made a selection, having referred to such, as, in my judgment, 
 either afforded favourable illustrations of doubtful points of law, or 
 laid down rules superior to those adopted in our own Courts. 
 
 With the view of rendering my work useful to the practitioner in 
 Ireland, I have noticed most of the leading decisions of the Four 
 Courts on the Law of Evidence, and have referred to many Irish 
 Statutes on the same subject. 
 
 In stating what the law is, I have not been unmindful of what, 
 in my humble opinion, it ought to be; and I have therefore 
 ventured, from time to time, to point out briefly such alterations 
 in the law as I conceive would effect material amendments. The 
 Law-Eeformer, by referruig to the Index, Title, " Suggestions for 
 Amending the Law of Evidence," will find what I have done on 
 this head. 
 
 The book contains no chapter on the Law of Stamps. This 
 omission might perhaps be justified by simply referring to the able 
 works of Messrs. Phillipps and Starkie, in the former of which the 
 
^1ll EXTRACTS FEOM THE PREFACE TO THE FIRST EDITION. 
 
 subject is not treated, while in the latter,- it occupies a very subor- 
 dinate place in the third volume. But the reasons which chiefly 
 influenced me in deciding to reject the Law of Stamps, were, 1st, 
 that it has been already discussed at large in several distinct 
 treatises ; 2nd, that any exposition of it, to be of practical value, 
 must have added much to the bulk of the work, and consequently 
 to its price ; 3rd, that it would have delayed the publication for 
 many months ; 4th, that this branch of the law will probably ere 
 long undergo very extensive changes ; and last, — though I confess 
 not least, — that it is one of the most repulsive subjects which could 
 be selected by an author for discussion. 
 
 In a work of this magnitude, treating as it does of a fluctuating 
 branch of the law, I am well aware that many mistakes must have 
 occurred; for these, my only apology is, that I have spared no 
 labour to avoid them. The language of St. Augustine is an 
 author's best consolation: — "lUi in vos sseviant, qui nesciunt cum 
 quo labore verum inveniatur, et quam difficile caveantur errores." 
 
 J. PITT TAYLOK. 
 
 2, Uakcouet Buildings, Temple, 
 10th Fdiruanj, 1848. 
 
CONTENTS. 
 
 Summary ....... 
 
 List of Abbreviations, &c 
 
 Table of Cases cited 
 
 Table of Statutes cited 
 
 Table of Rules and Forms of Supreme Court cited 
 Table of Rules and Forms of County Courts cited 
 Errata 
 
 PAGE 
 
 ix — xii 
 
 xiii — xxiv 
 
 XXV — xcviii 
 
 xcix — cxviii 
 
 cxix — cxx 
 
 cxx 
 
 cxxi — cxxv 
 
 SUMMARY. 
 
 PAET I. 
 
 NATURE AND PRINCIPLES OF EVIDENCE. 
 ► — 
 
 CHAPTER I. 
 
 Preliminary Observations 
 
 1,2 
 
 CHAPTER II. 
 Matters judicially noticed without Proof. 
 
 3—31 
 
 CHAPTER III. 
 
 The functions of the Judge as distinguished from those 
 of the Jury 
 
 32—65 
 
X SUMMARY. 
 
 CHAPTEE IV. 
 
 PAGE 
 
 The Grounds of Belief 66—84 
 
 CHAPTER V. 
 Presumptive Evidence 85 — 220 
 
 PART II. 
 
 RULES GOVEKNING THE PRODUCTION OP TESTIMONY. 
 
 CHAPTEE I. 
 
 Correspondence of Evidence with Allegations ; Sub- 
 stance of Issue ; Variance ; and Amendment . 221 — 282 
 
 CHAPTEE n. 
 
 Confining Evidence to Points in Issue . . . 283 — 331 
 
 CHAPTEE ni. 
 
 Burthen of Proof 332 — 355 
 
 CHAPTER IV. 
 
 Best Evidence 356 — 386 
 
 CHAPTER V, 
 
 Secondary Evidence 387 — 476 
 
 CHAPTER VI. 
 
 Evidence addressed to the Senses .... 477 485 
 
SDMMAEY. xi 
 
 CHAPTEE VII. 
 
 __ PAGE 
 
 Hearsay 486—516 
 
 CHAPTEK Vm. 
 
 Matters of Public and General Interest . . . 517 — 539 
 
 CHAPTEE IX. 
 Matters of Pedigree 54O 559 
 
 CHAPTEE X. 
 
 Ancient Possession 560 — 567 
 
 CHAPTEE XI. 
 
 Declarations against Interest 568 — 591 . 
 
 CHAPTEE XII. 
 
 Declarations in the coiirse of Office or Business . . 592 — 604 
 
 CHAPTEE Xm. 
 
 Dying Declarations 605 — 612 
 
 CHAPTEE XIV. 
 
 Admissions 613 — 721 
 
 CHAPTEE XV. 
 
 Confessions 722—763 
 
 CHAPTEE XVI. 
 
 Evidence excluded on grounds of Public PoHcy . . 764 — 800 
 
 CHAPTEE XVn. 
 
 Matters not Provable by a single Witness . . . 801 — 814 
 
XU SUMMARY. 
 
 CHAPTER XVIII. 
 
 PAGE 
 
 Matters requiring to be evidenced by Writings . . 817 — 940 
 
 CHAPTER XIX. 
 
 Admissibility of Parol Evidence to aifect Written 
 
 Instruments 941—1027 
 
 PAET III. 
 
 INSTRUMENTS OF EYIDENCE. 
 • 
 
 CHAPTER I. 
 
 Witnesses, and the means of procuring their 
 
 Attendance 1028—1124 
 
 CHAPTER II. 
 Competency of Witnesses 1125 — 1170 
 
 CHAPTER in. 
 Examination of Witnesses 1171 — 1244 
 
 CHAPTER IV. 
 Public Documefits 1245—1488 
 
 CHAPTER V. 
 Private Writings 1489—1561 
 
 Index 1563—1765 
 
A LIST 
 
 OP 
 
 TOGIIHJJI! WITH A SIAIEMJJHT 01 THE 
 
 EDITIONS OF THE PEINGIPAL ELEMENTARY WORKS CITED. 
 
 Note. — TJut letters A. B. C. D. appended to the American Seporfs, denote tlie relative 
 estimation in which tliose Reports are held hy the profession in general, 
 out of the particular State wliere the decisions were pronounced : A. 
 marking the highest degree of excelleiwe. A very eminent American jurist 
 has kindly furnished the Author with this guide. 
 
 ABBEBVIATIONS. NAME OF WOEK, ETC. 
 
 A. & E Adolpliiis & Ellis's Reports, King's Bench. . 12 vols. 
 
 Aberc. on Intell. ) Abercrombie on the Intellectual Powers. 6th ed. Edin- 
 
 Pow 5 burgh, 1836. 
 
 Adam's Ant Adam's Roman AnticLuities. 
 
 Addis Addison's Reports, Pennsylvania, 1791-:— 1799. 1 vol. (C.) 
 
 Add Addams' Ecclesiastical Reports. 3 vols. 
 
 Aik Aiken's Reports, Vermont. 1826—1827. 2 vols. (B.) 
 
 A. K. Marsh A. K. Marshall's Rep., Kentucky. 1817—1821. 3 vols. (D.) 
 
 Ale. & Nap Alcock & Napier's Reports, King's Bench, Ireland, 1vol. 
 
 Aloia. de Pries. ... Alciatus de Prsesumptione. Alciati Opera, BasilesE. 1852. 
 
 4 torn. fol. 
 
 Alison, Or. L Alison's Principles of the Criminal Law of Scotland. 
 
 Alison, Pract. of ) XYiso^s Practice of the Criminal Law of Scotland. 
 
 Cr. L 5 
 
 Am. Ed American edition. 
 
 Am. Jur American Jurist. Boston. 
 
 Amb Ambler's Reports, Chancery. 2 vols. 
 
 And Anderson's Reports, Common Pleas. 1 vol. 
 
 Andr Andrew's Reports, King's Bench. 1 vol. 
 
 Anstr Anstruther's Reports, Exchequer. 3 vols. 
 
 Anthon, Anthon's Nisi Pr. Rep., New York. 1808—1818. 1 vol. (D.) 
 
 Applet Appleton's Reports, Maine, from 1841., 1 vol. (C.) 
 
 Arch. Cr. PI Archbold's Criminal Pleading. 16th ed., 1867. 
 
 Arm. M. & O. ... Armstrong, Macartney & Ogle's Rep., Nisi Pr. Irel. 1 vol. 
 
 Arm. & T Armstrong & Trevor's Rep. of R. -o. O'Connell, Dub., 1844. 
 
 Atk Atkyns's Reports, Chancery. 3 vols. 
 
 Att.-Gen Attorney-General. 
 
 AyHffe Par Ayliffe's Parergon, 2nd edition, 1734. 
 
 B. & A Bamewall & Alderson's Reports, King's Bench. 5 vols. 
 
 B. & Ad Bamewall & Adolphus' Reports, King's Bench. 5 vols. 
 
XIV ABBKEVIATIOKS, ETC. 
 
 ABBBEVIATIOKS. NAME OF WOEK, ETC. 
 
 B. & B Broderip & Bingliam's Keports, Common Pleas. 3 vols. 
 
 B. & C Bamewall & Cresswell's Reports, King's Bench. 10 vols 
 
 B. & Lush. Aclm. Browning & Lushington's Admiralty Reports. 1 vol. 
 
 B. & P Bosanqnet & Puller's Reports, Common Pleas. 3 vols. 
 
 B. & S Best & Smith's Queen's Bench Reports. 1 vols. 
 
 Bac. Ah Bacon's Abridgment. 
 
 Bail Bailey'sReports,SouthCarolina, 1828— 1832. 2 vols. (B). 
 
 Bail Ct. Cas Lowntles & Maxwell's Bail Court Cases, 1852. 1vol. 
 
 BaU & B Ball & Beatty's Reports, Chancery, Ireland. 2 vols. 
 
 Barnes, Barnes's Notes of Practice Cases in Common Pleas. 
 
 Batty, Batty's Reports, King's Bench, Ireland. 1 vol. 
 
 Bay, Bay's Reports, South Carolina, 1783—1804. 2 vols. (B.C.) 
 
 Bayl. Bills, Bayley, J. on BiUs of Exchange. 6th ed. London, 1849. 
 
 Beav , Beavan's Reports, Rolls Court. 36 vols. 
 
 Bell, CO Bell's Crown Cases Reserved, 1859. 1vol. 
 
 Bell, Dig Bell's Digest of the Laws of Scotland. 
 
 Benth. Ev Bentham's Rationale of Jud. Evid. 5 vols. Lond., 1827. 
 
 Best, Ev Best's Principles of Law of Evid. London. 3rd ed. 1860. 
 
 Bibb, Bibb's Reports, Kentucky, 1808— 1817. 4 vols. (D.) 
 
 Bing Bingham's Reports, Common Pleas. 10 vols. 
 
 Bing. N. S Bingham's Reports, New Series, Conunon Pleas. 6 vols. 
 
 Binn Binney's Reports, Pennsylvania, 1799 — 1814. 6 vols (A.) 
 
 fin Chr Oat ' Bishop of Tasmania's Lectures on the Christian Catechism. 
 
 Bl. Com Blackstone's Commentaries. 
 
 H. Bl Henry Blackstone's Reports, Common Pleas. 2 vols. 
 
 W. Bl Sir William Blackstone's Reports (K. B. & C. P. ). 2 vols. 
 
 Bland, Ch Bland's Chancery Rep., Maryland, 1811— 1830. 2vols.(C.) 
 
 Blackf. Blackford's Reports, Indiana, 1817— 1838. 4 vols. (CD.) 
 
 Bligh, BKgh's Reports, House of Lords. 4 vols. 
 
 Bligh, N. S Bligh's Reports, New Series, House of Lords. 11 vols. 
 
 B. N. P Buller's Law of Nisi Prius. 
 
 Bott, Bott's Poor Laws. 
 
 Br. C. C Brown's Chancery Cases. 4 vols. 
 
 Br. P. C Brown's Parliamentary Cases. 8 vols. 
 
 Bridg Sir O. Bridgman's Judgments in Common Pleas. 1 vol. 
 
 Bro. Ahr Brooke's Abridgment. 
 
 Broom, Max Broom's Legal Maxims. 3rd ed. London, 1858. 
 
 Browne, Browne's Reports, Pennsylvania, 1806 — 1814. 2 vols. (C.) 
 
 Brownl Brownlow's Reports, Common Pleas. 1vol. 
 
 Buck, Buck's Reports in Cases of Bankruptcy. 1 vol. 
 
 Bulst Bulstrode's Reports, King's Bench. 1 voL 
 
 Bunb Bunhury's Reports, Exchequer. 1vol. 
 
 Burge, Com. on ) Surge's Commentaries on Colonial and Foreign Laws. 
 Col. & For. L. 5 4 vols. London, 1838. 
 
 Bum, Ec. L Bum's Ecclesiastical Law. 9th ed. London, 1842. 
 
 Burn, Just Burn's Justice of the Peace, by Chitty. 29th ed. 1845. 
 
 Burnet, Cr. L. ... Burnet on Criminal Law of Scotland. 
 
 Burr Burrow's Reports, King's Bench. 5 vols. 
 
 Burr. S. C Burrow's Settlement Cases, King's Bench. 1 vol. 
 
 Byles, Bills, Byles, J., on BiUs of Exchange. 8th ed. London, 1862. 
 
 Rom ' ' [ Bynkershoek, Libri Observationum Jiu-is Romani. 
 
 C. & J. ^ Crompton & Jervis's Reports, Exchequer. 2 vols. 
 
 C. & Kir CaiTington & Kirwan's Nisi Prius Reports. 3 vols. 
 
 C. & M Crompton & Meeson's Reports, Exchequer. 2 vols. 
 
 C. M. & R Crompton, Meeson, & Roscoe's Rep., Exchequer. 2 vols. 
 
 C. & Marsh Carrington & Marshnian's Nisi Prius Reports. 1 vol. 
 
 C. & P Carrington & Payne's Nisi Prius Reports. 9 vols. 
 
ABBREVIATIONS, ETC. XY 
 
 ABBEEVIATIONS. NAME OF WOKK, ETC. 
 
 Caines, Caines's Reports, New York, 1803— 1805. 3 vols. (A.) 
 
 Cald Caldeoott's Eeports of Settlement Cases. 1 vol. 
 
 Calv. Lex Calvini Lexicon Jiiridicnm Juris Csesarii. Gen., 1 645, fol. 
 
 Camp Campbell's Nisi Prius Eeports. 4 vols. 
 
 Cane. Leg. barb. ) Canciani, Leges barbarorum antiqiife. Venetiis, 1781 — 
 
 ant J 1785. 5 vols. fol. 
 
 Carpz. Pract. j Carpzovii, Practicas Eerum Criminalium. Francof. ad 
 
 Eer. Cr J Ma^mim, 1758. 3 vols. fol. 
 
 Carr. Cr. L Carrington's Supplement of Treatises on Crjminal Laiv. 
 
 Cartli Cartliew's Eeports^ King's Benoli. 1 vol. 
 
 Cas. temp. Hard. Cases in the time of Lord Hardwicke. 1 vol. 
 
 Cas. temp. Lee, ... Ecclesiastical Eeports in the time of Sir G. Lee. 2 vols. 
 
 Channing, Channing's Works. 5 vols. 3rd edition. Glasgow, 1840. 
 
 Chit. Bills Chitty on Bills of Exchange. 9th edition. London, 1840. 
 
 Chit. Cr. L Chitty's Treatise on Criminal Law. 2nded. London, 1826. 
 
 Chit. Eorms, Chitty's Eorms of Practical Proceedings ia Common Law 
 
 Courts. 6th ed. London, 1847. 
 
 Chit. Gen. Pract. Chitty's General Practice. 
 
 Chit, on PI Chitty Senior, on Pleading. 7th ed. London, 1844. 
 
 Chit. E Cliitty's Eeports, King's Bench. 2 vols. 
 
 Cic. Fam. Ep. . . . Ciceronis Eamiliares Epistolse. 
 
 City HaU Eec. ... New York Eeoorder, containing Eeports of Cases in City 
 Courts from 1816 to 1821. 6 vols. 
 
 CI. & Fin Clark & Finnelly's Eeports, House of Lords. 12 vols. 
 
 Co Lord Coke's Eeports. London, 1826. .6 vols. 
 
 Co. Lit Coke on Littleton. 
 
 Cock. & E Cockhum & Eowe's Election Cases. 1vol. 
 
 Cod. Lib Codex Theodosianus, Jacobi Gothofredi. 
 
 Code de Proc. Civ. Code Napoleon de Procedure Civile. 
 
 Coll Collyer's Chancery Eeports. 2 vols. 
 
 Com Commonwealth. 
 
 Com. B Manning, Granger, & Scott's Common Bench Eep. 18 vols. 
 
 Com. B., N. S. ... NewSeriesof Common Bench Eep. by Jplm Scott. 20 vols. 
 
 Com. Di Comyn's Digest. 
 
 Com. J Journals of the House of Commons. 
 
 Com. Eep Comyn's Eejjorts. All the Common Law Coirrts. 2 vols. 
 
 Comb Comberbach's Eeports, King's Bench. 1 vol. 
 
 ConkUn's Pr Conklin'sPracticeofCts. of United States, New York, 1842. 
 
 Conn ConnecticiTtEeports,by T.Day, 1814— 1848. 15 vols. (B.) 
 
 Cons. Ord. Ch.l860 Consolidated General Orders of the Ct. of Chancer)', 1860. 
 
 Cons. E Haggard's Consistory Eeports. 2 vols. 
 
 Const. E Constitutional Eep., S. Carolina, 1812—1816. 2 vols. (B.C.) 
 
 Const. & Can Constitutions and Canons Ecclesiastical. 
 
 Const. U. S. Amend. Amended Constitution of the United States. 
 
 Cooke & Ale Cooke & Alcook's Eep., King's Bench, Ireland. 1 vol. 
 
 Cooke, Cooke's Eeports, Tennessee, 1811 — 1814. 1 vol. (D.) 
 
 Coop Charles Purton Cooper's Cases in Chancery. 1 vol. 
 
 Cor St. Paul's Epistle to the Corinthians. 
 
 Corner, Cr. Pr. ... Corner's Crown Practice in Queen's Bench. London, 1844. 
 
 Cowen, Cowen's Eeports, New York, 1823—1828. 9 vols. (A.) 
 
 Cowp Cowper's Eeports, King's Bench. 2 vols. 
 
 Cox, Ch. E Cox's Eeports, Chancery. 2 vols. 
 
 Cox, Cox's Criminal Law Cases. 1 3 vols. 
 
 Coxe, Coxe's Eeports, New Jersey, 1790— 1795. 1 vol (C.) 
 
 Cr & Ph Craig & PliUlips' Eeports, Chancery. 1 vol. 
 
 Cranch, Cranch's Eep., Sup. Ct. of U. S., 1800—1815. 9 vols. (A.) 
 
 Craw£&D-,Abr.C. Crawford & Dix's Abridged Cases in Ireland. 1 vol. 
 
 Crawf! & D., C. 0. Crawford & Dix, Irish Circuit Eeports. 3 vols. 
 
 Cro. Car Croke's Eeports in the Eeign of King Charles I. 
 
XVI ABBREVIATIONS, ETC. 
 
 ABBEEVIATIONS. NAME OF WOEK, ETC. 
 
 Cro. El Croke's Reports in tlie Reign of Queen Elizabeth. 
 
 Cro. Jac Croke's Reports in the Reign of King James. 
 
 Cruise, Dign Cruise on Dignities or Titles of Honour. 
 
 Cujac. Op. Posth. Cujacoii Opera Posthuma. 
 
 Curt Curteis' Ecclesiastical Reports. 3 vols. 
 
 Cush Cushing's Rep. Supreme Court of Massachusetts. . 9 vols. 
 
 Cy. Ct. R. 0. & F. County Court Rules, Orders, and Forms, 1868. 
 
 Cy. Ct. R. 1875 Consol. County Court Orders, Rules, and Forms, 1875. 
 
 D. & M Davison & Merivale's Reports, Queen's Bench. 1vol. 
 
 D. & R Dowling & Ryland's Reports, King's Bench. 9 vols. 
 
 D. & R., Mag. Ca. Dowling & Ryland's Magistrates' Cases. 4 volu. 
 
 D. & R., N. P. C. Dowling & Ryland's Nisi Prius Cases. . 1 vol. 
 
 Dalison, Benloe & Dalison's Reports, Com. PL 1vol. 
 
 Dall Dallas's Reports. Supreme Courts of United States, and 
 
 Pennsylvania, 1790—1806. 4 vols. (A.) 
 
 Dalt Dalton's Country Justice, Ed., 1697. 
 
 Dan. Cli. Pr DanieU's Chancery Practice. 4th ed., by Messrs. Field, 
 
 Dunn, & Biddle. London. 1865—1867. 
 
 Dane, Abr Dane's Abridgment, United States. 
 
 Danty, Traits de la Preuve. Paris, 1 697, 4to. 
 
 Davidson,Conc. Pr. Davidson's Concise Precedents of Conveyancing. 
 
 Day, Day's Reports, Connecticut, 1802—1810. 5 vols. (B.) 
 
 Dea. & C Deacon & Chitty's Reports, Bankruptcy. 4 vols. 
 
 Dea. & Sw. Ec. R. Deane & Swabey's Ecclesiastical Rep. London. 1 vol. 
 
 Deane, Ec. R Deane's Ecclesiastical Reports. London, 1856. 1 vol.. 
 
 Deane, Verm. R... Deane's Reports. Supreme Court of Vermont. 3 vols. 
 
 Dear. & Bell, Dearsley & Bell's Crown Cases Reserved. 1vol. 
 
 Dec. Greg Decretals of Pope Gregory IX. 
 
 De Gex,F. & J. ... De Gex, Fisher, & Jones, Chancery Appeals. 4 vols. 
 
 De Gex & J De Gex & Jones, Chancery Appeals, 1857. 4 vols. 
 
 De Gex, J. & S. ... De Gex, Jones, & Smith, Chancery Appeals. 4 vols. 
 
 De Gex, M. &. G. De Gex, Macnaghten, & Gordon, Chancery Appeals, 8 vols. 
 
 De Gex & Sm. ... De Gex & Smale's Rep., V.-C. Knight Bruce's Ct. 5 vols. 
 
 Den Denison's Crown Cases Reserved. 2 vols. 
 
 Dev Deverenx's Rep., North Carolina, 1826-^1834. 4vols. (B.) 
 
 Dev. & B Devereux & Battle's Rep., North Carolina, 1834 — 1840. 
 
 4 vols. (B.) 
 
 Dick Dickens's Reports, Chancery. 2 vols. 
 
 Dick. Quar. Sess. Dickinson's Quarter Sessions. 6th ed. London, 1846. 
 
 Dickson, Ev Dickson on Evidence in Scotland. 2 vols. Edinburgh, 1855. 
 
 Dig. Lib Digests of Civil Law. 
 
 Doct. & Stix. Doctor and Student. 
 
 Dods. Adm Dodson's Reports, Court of Admiralty. 2 vols. 
 
 Dom. Proc House of Lords. 
 
 Doug Douglas's Reports, King's Bench, 4 vols. 
 
 Dow, DoVs Reports, House of Lords, 6 vols. 
 
 Dowl DowUng's Practice Cases, Old Ser. Com. Law Cts. 9 vols. 
 
 DowL N. S DowUng's Practice Cases, New Series. The same, 2 vols. 
 
 Dowl. & L Dowling & Lowndes's Practice Cases. The same, 7 vols.' 
 
 Dr. & St Doctor and Student. 
 
 Drew Drewry's Rep. of Decisions by Kindersley, V. -C, 4 vols. 
 
 Drew. & Sm Drewry & Smale's Rep. in same court, 2 vols. 
 
 Druiy, Ch. R. ... Drur/s Irish Chancery Rep., temp. Sugden, Ch. 1vol. 
 
 Dru. & "War Drury & Warren's Reports, Chancery, Ireland, 4 vols. 
 
 Dyer, Dyer's Reports, King's Bench. 3 vols. 
 
 E. & B Ellis & Blackburn's Queen's Bench Reports, 8 vols. 
 
 E. B. & E Ellis, Blackburn, & Ellis's Queen's Bench Rep., 1 vol 
 
 E. & E Ellis & Ellis's Queen's Bench Reports, 3 vols. 
 
 Eag. &. Y Eagle & Younge's Reports of Tithe Cases. 4 vols. 
 
ABBREVIATIONS, ETC. XTll 
 
 ABBKEVIATIONS. NAME OP WORK, ETC. 
 
 East, East's Reports, King's Benoli. 16 vols. 
 
 East, P. C East's Pleas of tlie Crown. 
 
 Ec. & Mar. Cas. ... Notes of Cases in Ecclesl. & Maritime Cts. Lond. 7 vols. 
 
 Edinb. Rev Edinburgh Review. 
 
 Eq. Cas. Ab Equity Cases Abridged. 2 vols. 
 
 Ersk. Inst Erskine's Institutes of the Law of Scotland. 
 
 Esp Espinasse's Nisi Prius Reports. 6 vols. 
 
 Everh. Cone Everhardi Concilia. Antwerp, 1643, fol. 
 
 Ex. R Exch. Rep. , by "Welsby, Hurlestone, & Gordon. 1 1 vols. 
 
 Eairf. Fairfield's Reports, Maine, 1833— 1835. 3 vols. (B.) 
 
 Farin. Op Farinacii Opera. Francof. ad Meenum, 1684. 4 vols. fol. 
 
 Ff. Pandeota Juris Civilis. 
 
 Fitzg Fitzgibbon's Reports. All the Courts. 1 vol. 
 
 Forrest, Forrest's Reports, Exchequer. 1 vol. 
 
 Fost. C. L Sir. M. Foster's Crown Law, 3rd ed., 1792. . 
 
 Fost. & Fin Foster & Finlason's Nisi Prius Reports. 4 vols. 
 
 Fox&Sm Fox & Smith's Reports, King's Bench, Ireland. 2 vols. 
 
 Freem Freeman's Reports. 1 vol. 
 
 G. & D Gale & Davison's Reports, Queen's Bench. 3 vols. 
 
 Gale, Gale's Reports, Exchequer. 
 
 Gall Gallison's Reports, United States, 1st Circuit Court, 1812 
 
 ■ — 1815. 2 vols. (A.) Jitdge Story's Decisions. 
 
 Gamb. Guide, Gambler's Guide to the Study of Moral Evidence. 
 
 Gibson, Cod Gibson's Codex Juris Eoelesiastici Anglicani. 
 
 Giflf. Giffard's Reports, V.-C. Stuart's Court. 4 vols. 
 
 Gilb. Eq. R Gilbert's Equity Reports. 1 voL 
 
 GUb. Ev. Gilbert on Evidence, by Loflft. 
 
 Gill & J Gill & Johnson's Rep., Maryland, 1829— 1840. 10 vols. 
 
 (B.) 
 
 Glassf. Ev Glassford on Evidence, Edinburgh, 1820. 
 
 Godb Godbolt's Reports. 1 vol. 
 
 Gow, Gow's Nisi Prius Reports. 1vol. 
 
 Gr. Ev Greenleaf on Evidence. 
 
 Gray, Gray's Reports, Supreme Court of Massachusetts. 2 vols. 
 
 Greenl Greenleaf's Reports, Maine, 1820— 1832. 9 vols. (B.) 
 
 Greenl. on Test. ) Dr. Greenleaf on the testimony of the Evangelists, 2nd 
 
 ofEvang. ... ) ed., London, 1847. 
 
 Gresl. Ev Gresley on Evidence in Courts of Chancery, paging of 
 
 1st ed. retained in margin of 2nd ed., 1847, London. 
 
 GwiU Gwillim's Reports of Statutes and Cases on Tithes. 
 
 H. Bl Henry Blackstone's Reports, Common Pleas. 2 vols. 
 
 H. & C Hurlestone & Coltman's Reports, Exchequer. 4 vols. 
 
 H. of L. Cas House of Lords' Oases, by Clark. 11 vols. 
 
 H. & N Hurlestone & Norman's Reports, Exchequer. 7 vols. 
 
 H. & R Harrison & Rutherfurd's Rep., Common Pleas. 1 vol. 
 
 Hagg. Cons Haggard's Consistory Reports. 2 vols. 
 
 Hagg. Ec. R Haggard's Ecclesiastical Rejjorts. 4 vols. 
 
 Hale, Lord Hale's Pleas of the Crown. 
 
 Hale de Jure Mar. Lord Hale's Treatise de Jure Maris. 
 
 Hall & T Hall & Twells's Reports in Chancery. 2 vols. 
 
 Halst Halstead's Reports, New Jersey, 1821— 1831. 7 vols (C). 
 
 Har. &G Harris & Gill's Rep., Maryland, 1826— 1829. 2 vols. (B.) 
 
 Har. &M'Hen. ... Harris & M'Henry's Reports, Maryland, 1790—1799. 
 
 4 vols. (D.) 
 
 Har. & W Harrison & Wollaston's Reports, King's Bench. 2 vols. 
 
 Hardin, Hardin's Reports, Kentucky, 1805—1808. 1 vol. (D.) 
 
 Hare, Hare's Rep. V.-Cs. Wigram & Turner's Cts. 11 vols. 
 
 Harg. L. Tracts,.,. Hargrave's Law Tracts. ;- 
 
 Hars. St. Tr Hargrave's State Trials. 11 Vols. 
 
 b 
 
XVm ABBREVIATIONS, ETC. 
 
 ABBIIEVIATIONS. NAME OF WOKK, ETC. 
 
 Hardr Hardres's Reports, Exchequer. 1 vol. 
 
 HaiT. & J Harris & Johnson's Reports, Maryland, 1800—1826. 
 
 7 vols. (B.) 
 
 Hawk Hawkins's Pleas of the Crown. 
 
 Hawks, Hawks' Reports, North Carolina, 1820— 1826. 4 vols. (C.) 
 
 Hayes, Hayes' Reports, Exoh equer, Ireland. 1 vol. 
 
 Hayes & Jon Hayes & Jones' Reports, Exchequer, Ireland. 1vol. 
 
 Hayw Haywood's Reports, North Carolina, 1789 — 1806. (C.) 
 
 Hein. ad Pand. ... Heineccius ad Pandectas. 5th torn, of his "Works. 
 
 Hem. & M Hemming & Miller's. Rep. in V.-C. Wood's Court. 2 vols. 
 
 Hen. &Munf. Henning & Munford's Reports, Virginia, 1806 — 1809. 
 
 4 vols. (C.) 
 
 HertiusdeColl. Leg. Hertius de Collisione Legum. 
 
 Hill, S. Car. R. ... Hill's Reports, South Carolina, 1833—1835. 2 vols. (B.C.) 
 
 Hill, N. Y. R. ... Hill's Reports, New York, 1841—1842. 3 vols. (B.) 
 
 Hob Hobart's Reports, King's Bench. 1 vol. 
 
 ^&tud"°^ ^^8- I Hoffman's Course of Legal Study, 2nd ed., 1836. 
 
 Holt, Lord Holt's Reports. 1 vol. 
 
 Holt N. P. R. ... Holt's Nisi Prius Reports. 1vol. 
 
 Hop. & Colt Hopwood & Coltman's Registration Cases. 2 vols. 
 
 How. St. Tr Howell's State Trials. 34 vols. 
 
 Howaid, S. Ct. R. Howard's Rep., United States, Sup. Ct., from 1843. (A.) 
 
 Hubb. Ev. of Sue. Hubback on Evidence of Succession, London, 1844. 
 
 Hume, Com Hiime's Commentaries on Criminal Law of Scotland. 
 
 Humph Humphrey'sReports, Tennessee, 1839 — 1841. 2 vols. (D.) 
 
 Hutt Hutton's Reports, Common Pleas. 1vol. 
 
 J. Kel Sir John Kelynge's Reports, King's Bench. 1 vol. 
 
 Inst Coke's Institutes. 
 
 I. R., C. L The Irish Reports, Common Law Series, Dublin, 1867 
 
 —1878. 11 vols. 
 
 I. R., Eq The Irish Reports, Equity Series, Dublin, 1867—1878. 
 
 11 vols. 
 
 Ir Irish. 
 
 Jr. Cir. R Irish Circuit Reports. 1vol. 
 
 Ir. Eq. R Irish Equity Reports. 13 vols. 
 
 Ir. Eq. R., N. S. . Irish Chancery Reports, New Series, 1850. 17 vols. 
 
 Ir. LawR Irish Law Reports. 13 vols. 
 
 Ir. Law R., N. S. Irish Common Law Reports, New Series, 1850. 17 vols. 
 
 Iredell, Iredell's Reports, North Carolina, 1840— 1841. lvoL(C.) 
 
 J. J. Marsh J. J. Marshall's Rep., Kentucky, 1829—1832. 7 vols. (D. ) 
 
 Jac Jacob's Reports, Chancery. 1 vol. 
 
 Jac. & W Jacob & Walker's Reports, Chancery. 2 vols. 
 
 Jaoobsen's Sea L. . Jacobsen's Sea Laws. 
 
 Jebb, C. C Jebb's Crown Cases Reserved, Ireland. 1vol. 
 
 Jebb & B Jebb & Bourke's Rep., Queen's Bench, Ireland. 1vol. 
 
 Jebb & Sy Jebb & Symes' Rep., Queen's Bench, Ireland. 2 vols. 
 
 Johns Johnson's Reports, New York, 1806—1823. 20 vols. (A.) 
 
 Johns. Ch. R Johnson's Chan. Rep., New York, 1814—1823. 7vol8. (A.) 
 
 Johns. & Hem, . . . Johnson & Hemming's Rep. in Ct. of Wood, V.-C. 2 vols. 
 
 Jones, Jones' Exchequer Reports, Ireland. 2 vols. 
 
 T. Jones, Sir Thomas Jones' Reports. 1 vol. 
 
 W.Jon Sir William Jones' Reports. 1 voL 
 
 Jones & Lat Jones & Latouche's Rep. Chancery, Ireland. 3 vols, 
 
 Joy on Conf. Joy on Confession in Criminal Cases, Dublin, 1842. 
 
 Jur Jurist Reports. All the Courts. 31 vols. 
 
 Jur. N. S Jurist Reports, New Series. All the Courts. 12 vols. 
 
 Kay, Kay's Reports of Decisions of Wood, V.-C, 1853. 1 vol. 
 
 Kay & J Kay & Jonnsou's Rep. of Decisions of Wood, V.-C. 4vols. 
 
ABBREVIATIONS, ETC. XIX 
 
 ABBREVIATIONS. NAME OF WORK, ETC. 
 
 Keb Keble's Reports, King's Bench. 3 vols. 
 
 Keen, ,... Keen's Eeports, Chancery. 2 vols. 
 
 Kel Sir John Kelynge's Reports. 1 vol. 
 
 Kent, Com Kent's Commentaries, Boston, 1840. 
 
 Kirby, Kirbys Reports, Connecticut, 1785—1788. 1 vol. (D.) 
 
 Knapp, P. C. R.... Knapp's Privy Council Reports. 3 vols. 
 
 Knapp & Knapp & Ombler's Election Cases. 1vol. 
 
 L. & Cave, Leigh. & Cave's Crown Cases reserved. 1 vol. 
 
 L. J., H. L Law Journal (New Series), House of Lords. 
 
 L. J., P. C Law Journal (New Series), Privy Council. 
 
 L. J., Ch Law Journal (New Series), Chancery. 
 
 L. J., Adm Law Journal (New Series), Admiralty. 
 
 L. J., Pr. & Mat... Law Journal (New Series), Probate and Matrimonial Cts. 
 
 L. J., Bk Law Journal (New Series), Bankruptcy. 
 
 L. J., Q. B Law Journal (New Series), Queen's Bench. 
 
 L. J., C. P Law Journal (New Series), Common Pleas. 
 
 L. J., Ex Law Journal (New Series), Exchequer. 
 
 L. J., M. C Law Journal (New Series), Magistrates' Cases. 
 
 L. J., Ec. C :. Law Journal (New Series), Ecclesiastical Cases. 
 
 L. J. (0. S.) Law Journal (Old Series). 9 vols. 
 
 L. M. & P Lowndes, Maxwell, and Pollock's Practice Cases. All,the 
 
 Common Law Courts. 2 vols. 
 
 L. R., Ch. D Law Reports, Chancery Division, from 1st Jan., 1876. 
 
 L. R., Q. B. D. ... Law Reports, Queen's Bench Division, from 1st Jan., 1876. 
 
 L. R., C. P. D. ... Law Reports, Common Pleas Division, from Ist Jan., 1876. 
 
 L. R., Ex. D Law Reports, Exchequer Division, from 1st. Jan., 1876. 
 
 L. R., App. Cas. . . . Law Reports, Appeal Cases, from 1st Jan.,' 1876. 
 
 L. R., P. D Law Reports, Probate Division, from 1st Jan., 18'76. 
 
 LL., U. S Laws of the United States. 
 
 Law Mag Law Magazine. 
 
 Law Mag., N. S... Law Magazine, New Series. 
 
 Law R Law Review. 
 
 ^^^ 2nd "Ser^^^' I "^^^ Recorder, 1st and 2nd Series. Irish. 10 vols. 
 
 Law Rep., H. L... Law Reports, House of Lords. 
 
 Law Rep., H. L. Sc. Law Reports, Scotch Appeals in House of Lords. 
 
 Law Rep., P. C... Law Reports, Privy Council. 
 
 Law Rep., Ch. Ap. Law Reports, Chancery Appeals (Ch. & L.-JJ.). 
 
 Law Rep., Eq. ... Law Reports, Equity Cases (M. E. & V.-Ch.). 
 
 Law Rep., Q. B.... Law Reports, Queen's Bench. 
 
 Law Rep., C. P.... Law Reports, Common Pleas. 
 
 Law Rep., Ex. ... Law Reports, Exchequer. 
 
 Law Rep., C. C... Law Reports, Crown Cases Reserved. 
 
 Law Rep., P. & D. Law Reports, Probate, Divorce, and Matrimonial. 
 
 ^^Iecc' ^^^ \ -"^^^ Reports, Admiralty and Ecclesiastical. 
 
 Lea Leach's Crown Oases. 4th ed., London, 1815. 2 vols. 
 
 Leg. Obs Legal Observer. 
 
 Leigh, R Leigh's Reports, Virginia, 1829—1839. 9 vols. (B.) 
 
 Leon Leonard's Reports, King's Bench. 1 vol. 
 
 Lev Levinz's Reports, King's Bench. 3 vols. 
 
 Lew. CO Lewin's Crown Cases on Northern Circuit. 2 vols. 
 
 Lit. R Littleton's Reports. 1vol. 
 
 Lloyd & G Lloyd & Goold's Ir. Chan. Rep., temp. Sugden, Ch. 1 vol. 
 
 Lofift, Lofft's Raports, King's Bench. 1 voL 
 
 Long. & T Longfield and Townsend's Rep. Exchequer, Ireland. 1 vol. 
 
 Lords' J Journals of the House of Lords. 
 
 Ld. Br. Sp Lord Brougham's Speeches. 4 vols. 1838. 
 
 Ld. Ray Lord Raymond's Rep., King's Bench & Com. Pleas. 3 vols. 
 
 b 2 
 
XX ABBREVIATIONS, ETC. 
 
 ABBREVIATIONS. NAME OF WOEK, ETC). 
 
 Louis Eeports of Louisiana, 1830 — 1840. 16 vols. (B.) 
 
 Luders, Luders's Election Cases. 3 vols. 
 
 Lush. Adm. R. ... Admiralty Eeports, by Vernon LusMngton, Esq. 1 vol. 
 
 Lutw Lutwyohe's Reports, Common Pleas. 2 vols. 
 
 M Sir F. Moore's Reports. 1vol. 
 
 M. & Gord Macnaghten & Gordon's Eeports, Chancery. 3 vols. 
 
 M. & Gr Manning & Granger's Reports, Common Pleas. 7 vols. 
 
 M. & M Moody & Malkin's Nisi Prius Reports. 1vol. 
 
 M. & P Moore & Payne's Reports, Common Pleas. 5 vols. 
 
 M. & R Manning & Ryland's Reports, King's Bench. 5 vols. 
 
 M. & Eoh Moody & Eohinson's Nisi Prius Eeports. 2 vols. 
 
 MS Manuscript. • 
 
 M. & Sc Moore & Scott's Reports, Common Pleas. 4 vols. 
 
 M. & Sel Moore & Selwyn's Eeports, King's Bench. 6 vols. 
 
 M. & W Meeson & Welsby's Eeports, Exchequer. 16 vols. 
 
 McC McCord's Eep. South Carolina, 1820— 1828. 4vols. (B.C.) 
 
 McC, Ch. R McCord's Chancery Reports, South Carolina, 1825 — 1827. 
 
 2 vols. (B. C.) 
 
 McClel McCleland's Eeports, Exchequer. 1 vol. 
 
 McClel. & Y MoCleland & Younge's Eeports, Exchequer. 1 vol. 
 
 Macq. Pr. in H. ) Macqueen's Practice in the House of Lords and Privy 
 
 ofL I Council. 
 
 Macq. Sc. Cas. ) Macqueen's Scotch Oases in the House of Lords, 1852. 
 
 H. of L 5 4 vols. 
 
 McDouall, Inst. . . . McDouall'a (Ld. Bankton) Institutes of Law of Scotland. 
 
 ^PhiPoTEv \ MoKinnon's Philosophy of Evidence. 
 
 ^ofllMfo iT' I MoNaghten's Elements of Hindoo Law. 
 
 McNaUy, Ev McNally on Evidence, Ireland. 
 
 Madd Maddock's Eeports, Vice-Chanc. Court. 6 vols. 
 
 Magens, Magens on Insurance, London. 1754. 
 
 Mann. Dig. N. P. Manning's Digested Index to the Nisi Prius Eeports. 
 
 Marsh Marshall's Eeports, Common Pleas. 2 vols. 
 
 A. K. Marsh A. K. Marshall's Eep., Kentucky, 1817 — 1821. 3 vols. (D.) 
 
 J. J. Marsh J. J. Marshall's Eep., Kentucky, 1829— 1832. 7 vols. (D.) 
 
 Mart Martin's Eeports, Louisiana, 1809 — 1823. 12 vols. (B.) 
 
 Mart., N. S Martin's Eeports, New Series, Louisiana, 1823 — 1830 
 
 8 vols. (B.) 
 
 Mart., N. Car. E. Martin's North Carolina Eeports. 1' vol. (D.) 
 
 Mart. & Y Martia&Yerger's Rep., Tennessee, 1825 — 1828. IvoL (D.) 
 
 Maso. de Prob. ... Mascardus de Probationibus. Francof. ad Mzenum 4 
 
 vols., fol., 1684. 
 
 Mason, Mason's Reports, United States, 1st Circuit Court, 1816 
 
 —1830. 5 vols. (A.). Judge Story's Decisions. 
 
 Mass Reports of Massachusetts, 1804 — 1822. (A.) 
 
 Math. Pres. Ev!... Mathews' Treatise on Presumptive Evidence. Lond. 1827. 
 
 May, L. of Pari.... May's Law of Parliament, 5th ed. London, 1863. 
 
 Menooh. de Prees. Menochius de Prsesumptionibus, Genevae, 1670, 2 torn. fol. 
 
 Mer Merivale's Reports, Chancery. 3 vols. 
 
 Mete Metcalfs Eeports, Massachusetts, 1840 — 1846. (A.) 
 
 Milw. Ec. Ir. E... Milward's Ecoles. Irish Rep., temp. Dr. Radciiife. ' 
 
 Min. Ev Minutes of Evidence in Peerage Claims, &c. 
 
 Mitf. on PI Mitford (Ld. Redesdale) on Plead, in Chanc, 5th ed. 1847. 
 
 Mod Modern Reports. All the Courts. 12 vols. 
 
 MoU Mollo5''s Reports, Chancery, Ireland. 3 vols. 
 
 Mon. &Ayr Montagu & Ayrton's Eeports, Bankruptcy. 3 vols. 
 
 Mon. & B Montagu & Bligh's Eeports, Bankruptcy. 1vol. 
 
 Mon. D. & D Montagu, Deacon, & De Gex's Eep. Bankruptcy. 3 vols. 
 
ABBREVIATIONS, ETC. XXI 
 
 ABBREVIATIONS. NAME OF WORK, ETC. 
 
 Mon. & McAr. ... Montagu & McAithur's Reports, Bankruptcy. 1 vol. 
 
 Monroe, Monroe's Reports, Kentucky, 1824—1828. 7 vols. (D.) 
 
 Moo. C. Moody's Crown Cases Reserved. 2 vols. 
 
 Moo. Ind. App. C. Moore's Indian Appeals to Privy Council. 14 vols. 
 
 Moo. P. C. R Moore's Privy Council Reports. 15 vols. 
 
 Moo. P. C, N. S. . Moore's Privy Council Reports, New Series. 9 vols. 
 
 Moore, Jolin Bayly Moore's Reports, Common Pleas. 12 vols. 
 
 Morison, Morison's Scotch Reports. 
 
 Munf. Munford's Reports, Virginia, 1810— 1820. 6 vols. (C.) 
 
 Murph Murphey's Reports, North Carolina, 1804 — 1819. (C.) 
 
 Myl. & Cr Mylne & Craig's Reports, Chancery. 5 vols. 
 
 Myl. & K Mylne & Keen's Reports, Chancery. 3 vols. 
 
 N. & M Nevile & Manning's Reports, King's Bench. 6 vols. 
 
 N. & P Nevile and Perry's Reports, Queen's Bench. 3 vols. 
 
 N. R Bosanquet & Puller's New Rep., Common Pleas. 2 vols. 
 
 N. York Civ. Code, The Code of Civil Procedure of New York, 1850. 
 
 N. York Cr. Code, The Code of Criminal Procedure of New York, 1850. 
 
 St Pat) ° I Nalson's Collection of State Papers. 
 
 New Hamp Reports of New Hampshire, 1816— 1843. (B.) 
 
 New R The New Reports in all the Courts. London, 1862. 6 vols. 
 
 New Sess. Cas. ... New Sessions Cases, by Carrow,Hammerton,& Allen. 4 vols. 
 
 Nott & M'C Nott&M'Cord's Rep.,S. CaroUna, 1817—1820. 2 vols. (B.) 
 
 Noy, Noy's Reports, King's Bench. 1 vol. 
 
 Ohio R Hammond's Ohio Reports, Ohio, 1821—1839. 9 vols. (D.) 
 
 Ought Oughton's Ordo Judicorum. 
 
 Owen, Owen's Reports, King's Bench and Common Pleas. 1 vol. 
 
 ^'pl '^3*' ^°^' ^' \ ^°^^ °^ ''^*™S the Year Books. 
 
 P. & D Perry & Davison's Reports, Queen's Bench. 4 vols. 
 
 P. Voet, de Stat... Paul Voet de Statutis. 
 
 P. Wms Peere Williams' Reports, mostly Chancery. 3 vols. 
 
 Paige, Paige's Chan. Rep., New York, 1828—1844. 10 vols. (B.) 
 
 Paine, Paine's Rep., Un. States, 2nd Circuit Ct., 1810—1826 
 
 1 vol. (B.) 
 
 Paine & D. Pr. ... Paine & Duer's Practice of the Courts of the United 
 
 States, New York, 1830. 
 
 Paley, Conv Paley on Convictions. 
 
 Paley, Ev. of Chr. Paley's Evidences of Christianity. Works, 5 vols. 1830. 
 
 Pabn Palmer's Reports, King's Bench. 1 vol. 
 
 Park, Ins Park on Marine Insurance, 8th edition, London, 1842. 
 
 Pari. Deb Parliamentary Debates. 
 
 Partid Lopez' Siete Partidas del Rey Alonzo IX., Valladolid, 
 
 1587. 4 torn. fol. 
 
 Pea. Add. Cas. ... Peake's Additional Nisi Prius Cases. 1 voL 
 
 Pea. Ev Peake on Evidence, 5th edition, London, 1822. 
 
 Pea. R Peake's Nisi Prius Rep., 3rd ed., 1820, but paging of 
 
 1st ed. 1 vol. 
 
 Pearce & IX Crown Cases Reserved, the first part of the volume by 
 
 Mr. Pearce, and the remainder by Mr. Dearsley. 
 
 Pears. Chit. PL ... Pearson's Chitty, Jun., Prec. in Plead., 2nd ed. 1847. 
 
 Peck, Peck's Reports, Tennessee, 1822—1824. 1 voL (D.) 
 
 Penning Pennington's Rep., New Jersey, 1806 — 1813. 2 vols. (C.) 
 
 Pennsylv Reports of Pennsylvania, 1829—1832. 3 vols. (B.) 
 
 Per. & K Perry and Knapp's Election Cases. 1vol. 
 
 Pet Peters' Rep., Supreme Courts of United States, 1827 — 
 
 1843. (A.) 
 
 Pet. C. C. R Peters' Circuit Courts Reports, United States, 3rd Circuit 
 
 Court, 1803—1818. 1 voL (B.) 
 
XXll ABBEEVIATIONS, ETC. 
 
 ABBEEVIATIONS. NAME OF WOKK, ETC. 
 
 Petersd. Abr Petersdorflf's Abridgment. 6 vols. 
 
 Ph. Ev Pbillipps on Evidence, 9tb edition, London, 1843. 
 
 Phill Phillips' Eeports, Chancery. 2 vols. 
 
 Phillim. R..... Phillimore's Ecclesiastical Reports. 3 vols. 
 
 Pick Pickering's Rep., Massachusetts, 1823—1840. 24 vols. (A.) 
 
 Plowd Plowden's Conunentaries or Reports. 2 vols. 
 
 PoUex PoUexfen's Reports, King's Bench. 1 vol. 
 
 Poph Popham's Reports, King's Bench. 1vol. 
 
 Porter, Porter's Reports, Alabama, 1834—1839. 9 vols. (D. ) 
 
 Poth. (Euv. Posth. Pothier, CEuvres Posthumes. 
 
 Poth. Obi Pothier on Obligations, by Evans, Philadelphia ed., 1826. 
 
 Pr. G Judicial Committee of the Privy Council. 
 
 Pr. Min Printed Minutes of Evid. on Peer. Claims in H. of Lords. 
 
 Preo. in Ch Precedents in Chancery. 
 
 Prest. on Abst. ... Preston's Essay on Abstracts of Title. 
 
 Price, Price's Reports, Exchequer. 13 vols. 
 
 Puff. Puffendorffs Law of Nations. 
 
 Q. B Adolphus& Ellis's Rep., New Ser., Queen's Bench. 18 vols. 
 
 QuintU. Inst. Orat. QuintHianus de Institutions Oratorio,. 
 
 R Rex or Regina. 
 
 R. & R Russell & Ryan's Crown Cases Reserved. 1vol. 
 
 Rail. Cas Railway Cases. All the Courts. 7 vols. 
 
 Ealid Randolph's Reports, Virginia, 1821 — 1828. 6 vols. (B.) 
 
 Rawle, Rawle's Reports, Pennsylvania, 1828 — 1835. 5 vols. (A.) 
 
 Ld. Ray Ld. Raymond's Rep., King's Bench & Com. Pleas. 3 vols. 
 
 T. Ray Sir Thomas Raymond's Rep., Common Law Courts. 1 vol. 
 
 OT E^T or T I ^sgulse Generales of Hilary, Easter, Trinity, or Michael- 
 
 T.,o;M.T...;) mas Term. 
 
 Reid on Human ) Dr. Reid's collected Works, edited by Sir William 
 
 Mind, ) Hamilton, Bart., Edinburgh, 1846. 
 
 Rep Lord Coke's Reports. 6 vols. 
 
 Rep. on Ch. Pr Report of the Commissioners on Chancery Practice. 
 
 A ' f Reports of Criminal Law Commissioners. 
 
 Rep. tem. Pinch... Eeports in the time of Lord Chancellor Finch. 1vol. 
 
 Rep. tem. Hardw. Eeports in the time of Lord Hardwicke. 1 vol. 
 
 Res Respublica. 
 
 Rev. Code, Revised Code. 
 
 Rev. St Revised Statutes of different States in America. 
 
 Eidg. L. & S Ridgway, Lapp & Sohoale's Rep., King's Bench, Irel. 1 vol. 
 
 Ridg. P. C Ridgway's Parliamentary Cases, Irish Parliament. 
 
 Riley, Riley's Law Cases, South Carolina, 1836—1837, 1 vol. (B.) 
 
 Rob. Adm Dr. Roberts' Admiralty Reports. 3 vols. 
 
 Rob. on Frauds . . . Roberts on Frauds. 
 
 Rob. on Gavel. ... Robinson on Gavelkind, 3rd ed., 1821. 
 
 Roberts Robertson's Ecclesiastical Reports. 2 vols. 
 
 Eog. on Elect. ... Eogers on Elections. 6th ed. London, 1841. 
 
 Eoll. Abr Eolle's Abridgement. 
 
 EoU. E Eolle's Reports, King's Bench. 2 vols. 
 
 Eoscoe, Ev Eosooe on Evidence at Nisi Prius. 10th ed. London, 1861. 
 
 Rose, Rose's Reports, Bankruptcy. 2 vols. 
 
 Russ Russell's Reports, Chancery. 5 vols. 
 
 Rubs. C. & M Russell on Crimes and Misdemeanors. 3rd.ed. Lond.,1843. 
 
 Russ. on Fact. ... Russell on Factors and Brokers. London, 1844. 
 
 Euss. & Myl Eussell & Mylne's Eeports, Chancery. 2 vols. 
 
 Ry. & M Ryan and Moody's Nisi Prius Reports. 1 vol. 
 
 S. C Same Case. 
 
 S. P Same Point. 
 
AEBEEVIATIONS, ETC. XXIU 
 
 ABBREVIATIONS. NAME OF WORK, ETC. 
 
 Salk Salkeld's Reports, Common Law Courts. 3 vols. 
 
 Say Saver's Eeports, King's Bench. 1 vol. 
 
 Sch. & Lef. Scnoales & Lefroy's Eeports, Chancery, Ireland. 2 vols. 
 
 Scott, Scott's Eeports, Common Pleas. 8 vols. 
 
 Scott, N. E Scott's New Eeports, Common Pleas. 8 vols. 
 
 Selw. N. P Selwyn's Law of Nisi Prius. 12th ed. 1859—61, London. 
 
 Serg. &E Sergeant & Eawle's Eelp., Pennsylvania, 1818—1829. 
 
 17 vols. (A.) 
 
 Sess. Ca NewSessionsCases,byCarrow,Hammerton,&Allen. 4vols. 
 
 Shepl Shepley's Eeports, Maine, 1836 — 1841. 6 vols. (C.) 
 
 Shep. Touch Sheppard's Touchstone, hy Preston. 
 
 Shower, Shower's Eeports, King's Bench. 2 vols. 
 
 Sid Siderfin's Eeports, King's Bench. 2 vols. 
 
 Sim Simons' Reports, Vice-Chancellor's Court. 17 vols. 
 
 Sim. N. S Simons' Eeports, New Series, Vice-Chano. Court. 2 vols. 
 
 Sim. & St Simons & Stuart's Reports, Vice-Chanc. Court. 2 vols. 
 
 Skinn Skinner's Eeports, King's Bench. 1 vol. 
 
 Sm. & Gif. Smale & Giffard's Eeports. V.-C. Stuart's Court. 3 vols. 
 
 Smith, Ch. Pr. ... Smith's Chancery Practice. 7th ed. London, 1862. 
 
 Smith, L. C Smith's Leading Cases. 5th ed. London, 1862. 
 
 South Southard's Eeports, New Jersey, 1816—1820. 2 vols. (C.) 
 
 St. Ev Starkie on Evidence. 3rd ed. 1842, London. 
 
 Stair Inst Stair's Institutes of the Law of Scotland. 
 
 Stark. E Starkie's Nisi Prius Eeports. 3 vols. 
 
 Steph. PI Stephens on Pleading. 5th ed. London, 1843. 
 
 Story, Agen Story on Agency. London, 1839. 
 
 Story, Bail Story on Bailments. 
 
 Story, Bills, Story on Bills of Exchange. London, 1843. 
 
 Story, Confl Story's Conflict of Laws. 2nd ed. London, 1841. 
 
 Story, Eq. Jur. . . . Story's Commentaries on Equity Jurisprudence. 4th ed. 
 
 London and Boston, 1846. 
 
 Story, Eq. PL ... Story on Equity Pleading, 3rd ed. London & Boston, 1844. 
 
 Story, Part Story on Partnership. London and Boston, 1841. 
 
 Story, E Story's Reports, United States, 1st Circuit, 1839 — 1845. 
 
 3 vols. (A.) Judge Story's Decisions. 
 
 Str Strange's Eeports in all Courts. 2 vols. 
 
 Stryk. de Sem. ) Strykius de Semiplen^ Probatione. Strykii Opera, 
 
 Prob J Franoof. ad Msenum. 1743—1753. 15 vols. foL 
 
 Sty Styles's Eeports, King's Bench. 1 vol. 
 
 Sug. Pow Sugden (Lord St. Leonards) on Powers. 8th ed. 1861. 
 
 Sug. v. & P Sugden(Ld.St.Leonards)onVendors&Purch. lOthed.,1839. 
 
 Sumn Sumner's Eeports, 1st Circuit Court of United States. 
 
 Judge Story's Decisions. 1830—1839. 3 vols. (A.) 
 
 Swab. Adm. E. ... Swabey's Eep. in Court of Admiralty. 1858. 1 vol. 
 
 Swab. & Trist Swabey & Tristram's Eep. in Ct. of Probate and in Ct. 
 
 for Divorce & Matrim. Causes. 1858. 4 vols. 
 
 Swanst Swanston's Eeports, Chancery. 3 vols. 
 
 Swift, Dig Swift's American Digest. 
 
 Swift, Ev Swift's American Law of Evidence. Hartford. 
 
 T. E Dumford & East's Term Reports, King's Bench. 8 vols. 
 
 T.Jones, Sir Thomas Jones' Eeports. 1vol. 
 
 T. Eay Sir Thomas Eaymond's Eep. The Common Law Cts. 1 voL 
 
 Tait, Ev Tait on Evidence. Edinburgh, 1 834. 
 
 Taunt Taunton's Eeports, Common Pleas. 8 vols. 
 
 Tidd, Tidd's Practice. 9th ed. London. 
 
 Toller on Ex Toller on the Law of Executors and Administrators. 
 
 Tomlin, L. Diet... Tomlin's Law Dictionary. 
 
 Turn. & R Turner & Russell's Reports, Chancery. 1vol. 
 
 Tyr Tyrwhitt's Eeports, Exchequer. 5 vols. 
 
XXIV ABBREVIATIONS, ETC. 
 
 ABBREVIATIONS. NAME OT WOEK, ETC. 
 
 Tyr. & Gr Tyrwhitt & Granger's Reports, Exchequer. 1vol. 
 
 U. S United States. 
 
 V.-C Vice-Chanoellor. 
 
 V. John Vaughan Johnson's Reports, in V.-C. Wood's Court. 1 vol. 
 
 VanLeeuw.Comm. Van Leeuwen's Commentaries. 
 
 Vaugh Vaughan's Reports, Common Pleas. 1 vol. 
 
 Ventr Ventris's Reports, King's Bench and Common Pleas. 1 vol. 
 
 Verm Vermont's Reports, Vermont, 1826—1837. 9 vols. (B.) 
 
 Verm Vernon's Reports, Chancery. 2 vols. 
 
 Ves Vesey, Junior's Reports, Chancery. 22 vols. 
 
 Ves. & B Vesey & Beames' Reports, Chancery. 3 vols. 
 
 Ves. Sen Vesey, Senior's Reports, Chancery. 3 vols. 
 
 Vin. Abr Viner's Abridgment. 
 
 Virg. Cas Virginia Cases, Virginia, 1789— 1826. 2 vols. (D.) 
 
 W. Bl Sir "William Blackstone's Reports, (K. B. & C. P.) 2 vols. 
 
 W. Jon Sir William Jones' Reports, King's Bench. 1vol. 
 
 W. N Weekly Notes, edited by Council of Law Reporting. 
 
 W. R Weekly Reporter. 26 Vols. 
 
 W. W. & H WUbnore, WoUaston & Hodges' Reports, Queen's Bench. 
 
 Wash Washington's Reports, Virginia, 1790 — 1796. 2 vols. (C.) 
 
 Wash. C. C. R. ... Washington's Circuit Court Reports, United States, 3rd 
 
 Circuit Court, 1803—1827. 4 vols. (B.) 
 
 Watk. Copyh Watkins on Copyholds. 
 
 Watts, Watts' Reports, Pennsylvania, 1832—1840. 10 vols. (A.) 
 
 Watts & S Watts & Sergeant's Reports, Pennsylvania, 1841 — 1842. 
 
 3 vols. (A.) 
 
 Webst. Pat. R. ... Webster's Reports on Patent Cases. 1vol. 
 
 Wend Wendall's Reports, New York, 1828—1841. (A.) 
 
 Whart Wharton's Reports, Pennsylvania, 1835 — 1840. 6 vols. (A.) 
 
 Whately's Log. ... Whately's Logic. 3rd ed. London, 1829. 
 
 Whately's Rhet. . Whately's Rhetoric. 3rd ed. Oxford, 1830. 
 
 Wheat Wheaton's Rep., Sup. Ct. of Un. States, 1816— 1827. (A.) 
 
 Wheel. C. C Wheeler's Criminal Cases, New York. 3 vols. (D.) 
 
 Wigr. Disc V.-C. Wigram on Law of Discovery, 2d ed. Lond., 1840. 
 
 Wigr. Wills, V.-C. Wigram on Interpret, of Wills, 4th ed. Lond., 1858. 
 
 Wightw Wightwick's Reports, Exchequer. 1vol. 
 
 Will, on Ex Williams on Executors & Administrators. 5th ed., 1856. 
 
 WUles, Willes' Reports, mostly Common Pleas. 1 vol. 
 
 Wills, Cir. Ev. ... Wills on Circumstantial Evidence, London, 4th ed., 1862. 
 
 Wils Wilson's Rep., King's Bench and Common Pleas. 3 vols. 
 
 Wils. Ex Wilson's Reports, Exchequer in Equity. 1vol. 
 
 Wing. Max Wingate's Maxims. 
 
 Wms. Saund Saunders' Rep., edited by Williams, J., 6th ed., 1845. 3 vols. 
 
 Woodb. & M Woodbury & Minot's Reports, United States, 1st Circuit, 
 
 1845—1847. 2 vols. (A.) 
 
 Woodfall's Junius, 3 vols. London, 18] 2. 
 
 Woodf. L. & T. ... Woodfall's Landlord and Tenant. 8th ed. London, 1863. 
 
 ^Eng ^'^^^' ^^' I Wood's Institutes of the Laws of England. Fol. 1772. 
 
 Wright, R Wright's Reports, Ohio, 1831—1834. 1 vol. (D. ) 
 
 Y. &C. Ch. R. ... Younge & Collyer's Rep., Vice-Chanc. Court. 2 vols. 
 
 Y. & C. Ex. R. ... Younge & Collyer's Reports, Exchequer. 4 vols. 
 
 Y. & J Younge & Jervis's Reports, Exchequer. 3 vols. 
 
 Yeates, Yeates' Reports, Pennsylvania, 1791— 1808. 4 vols. (B.) 
 
 Yelv Yelverton's Reports, King's Bench. 1vol. 
 
 Yerg Yerger's Reports, Tennessee, 1832— 1837. 10 vols. (D.) 
 
 You Younge's Reports, Exchequer in Equity. 1vol. 
 
TABLE OF CASES CITED. 
 
 PAGE 
 
 Aaeon V. Aakon 892 
 
 Abbey v. Lill 1191 
 
 Abbot V. Hermon 678 
 
 Abbot V. Plumbe 1532 
 Abbott V. Abbott & Godoy 1328, 1338 
 
 Abbott V. Bates 971 
 
 Abbott V. Hendricks 950, 962 
 
 Abbotts. Massie 1010 
 
 Abbott V. Middleton 943 
 
 Abbotun v. Dunswell 605 
 
 Abeel v. Radcliff 858 
 
 Abel V. Potts 1327 
 
 Abignye v. Clifton 1160 
 
 Abley v. Dale 1451 
 
 Abraham v. Newton 449 
 
 Abraham v. Norton 449 
 
 Abrey v. Crux 961 
 Accidental & Mar, Ins. Co., Re 1078 
 
 Aoebal v. Levy 877, 880 
 
 Acerro v. Petroni 1178 
 
 Acheson v. Henry 458 
 
 Ackary, Ee 1095 
 
 Ackland v Pearce 405 
 
 Ackworth, ex parte 1442 
 
 A'Courtw. Cross 905 
 
 Acraman v. Hemiman 936 
 
 Acraman v. Morrice 878 
 
 Adam v. Kerr 1537, 1541 
 
 Adams v. Balch 1394 
 
 Adams v. Barnes 108, 1413 
 
 Adams v. Barry 778 
 
 Adams v. Dansey •• 865 
 
 Adams v. Frye 1523 
 
 Adams v. Gibney 982 
 
 Adams v. Jones 1015 
 Adams v. Lloyd 463, 1227, 1504 
 
 Adams v. Sanders 719 
 
 Adams v. Wordley 945, 961 
 
 Adamson, Re 176 
 
 Adamthwaite v. Synge 1294 
 
 Addington v. Clode 1259 
 
 Addington v. Magan 237 
 
 Adelaide, The 1391 
 
 Admiral Austen, Re 893 
 
 Admiral Boxer, The 215 
 
 Aflalo V. Fourdrinier 402 
 Agricultural Cattle Ins. Co. v. Fitzgerald 
 377, 1519 
 
 Aheame v. M'Guire 1115, 1121 
 
 Ainsworth, Re 889 
 
 Airey v. Hill 204 
 
 PAQB 
 
 Airth Peer. 553 
 
 Aitken, ex parte 769 
 
 Albani7. Pritchett 646 
 
 Albert v. The Grosvenor Invest. Co. 954 
 Alchin V. Hopkins 870 
 
 Alcock V. Cook 530, 1321 
 
 Alcock V. The Roy. Exch. Ins. Co. 1182, 
 1184, 1211 
 Alcock V. Whatraore 23 
 
 Alcock V. Wilshaw 264 
 
 Alcorn v. Larkin 1299 
 
 Alder «. Savill 1468 
 
 Alderson v. Clay 203, 369, 681 
 
 Alderson v. Langdale 1515 
 
 Aldous V. Cornwell 1517, 1523 
 
 Aldridge v. Gt. "W. Ry. Co. 926 
 
 Aldridge v. Haines 1395 
 
 Aldridge v. Johnson 878 
 
 Alexander v. Burchfield 42, 44 
 
 Alexander v. Crosbie 952 
 
 Alexander v. Dixon 1035 
 
 Alexander v. Strong 395 
 
 Alexander v. Vanderzee 57 
 
 Alexandria, Mechanics' Bk. of, v. Bk. of 
 Columbia 513 
 
 Alfonso V. U. S. 357 
 
 Alford V. Clay 602 
 
 AUvon V. Furnival 357, 393, 396, 452, 
 
 1301 
 Allan's patent. Re 154 
 
 Allen, Re 883 
 
 Allen V. Bennet 857, 860 
 
 Allen V. Cameron 287 
 
 Allen V. Denstone 514 
 
 Allen V. Duncan 499 
 
 Allen 11. Dundas 1324, 1402, 1436, 1468 
 Allen V. D. of Hamilton 1063 
 
 Allen V. Maddock 891, 892, 998 
 
 Allen V. M'Keen 677 
 
 Allen ■». New Gas Co. 988 
 
 Allen V. Pink 947 
 
 Allen V. Say ward no 
 
 Allen V. Yoxall 1044 
 
 Allnutt, Re 392 
 
 AUport V. Meek 1551 
 
 Almosnino, Re 891 993 
 
 Alner v. George ' 719 
 
 Alvord V. Baker 186 
 
 Amalia, The 222 
 
 Ambrose Rookwnod's Case 305 
 
 American Fur Co. v. U. S. 503 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 Amey v. Long 1032, 1033 
 
 Amherst, Ld. v. Ld. Somers 1397 
 
 Amiss, Re 890 
 
 Amor V. Cuthbert 265 
 
 Amos V. Hughes 332, 333 
 
 Amos V. Smith 909 
 
 Anderson v. Anderson 892 
 
 Anderson v. Brit. Bk. of Golumbia 775 
 Anderson v. Chapman 264 
 
 Anderson v. Gill 204, 338 
 
 Anderson v. Hamilton 797 
 
 Anderson ■;;. Hayraan 864 
 
 Anderson v. Long 324 
 
 Anderson v. Pitcher 993 
 
 Anderson v. Sanderson 646 
 
 Anderson v. Scot 878 
 
 Anderson v. Thornton 249, 707 
 
 Anderson v. Weston 176, 177, 590 
 
 Anderson v. Whalley 1183 
 
 Anderston v. Magawley 1321 
 
 Andrew v. Brooke 469 
 
 Andrew v. Motley 357, 563, 1539 
 
 Andrewes v. Askey 325, 326, 331, 1213, 
 
 1216 
 Andrews v. Brooke 469 
 
 Andrews v. Elliot 708 
 
 Andrews v. Hailes 140 
 
 Andrews v. Martin 1118, 1122 
 
 Andrews v. Palmer 424 
 
 Andrews v. Solomon 774 
 
 Andrews V. 'I'urner 899, 900 
 
 Andrews v. Vanduzer 329 
 
 Angell V. Duke 870, 958 
 
 Angell V. "Worsley 176 
 
 Anglesey (M. of) v. Ld. Hatherton 299, 
 
 300, 529 
 Angus V. Smith 1216 
 
 Ann, The 222 
 
 Annapolis, The 214 
 
 Annesley v. Ld. Anglesea 81, 131, 490, 
 767, 784, 788, 1150, 1242, 1243, 
 1244 
 Annett v. Osborne 41 
 
 Anon. 12, 136, 137, 307, 768, 771, 781, 
 790, 808, 1050, 1051, 1119, 1121, 
 1147, 1181, 1238, 1239, 1242, 1289, 
 1397, 1418, 1469, 1554, 1555 
 Anon. V. Anon. 799 
 
 Ansty V. Dowsing 357 
 
 Antram v. Chaco 1319 
 
 Apoth. C9. V. Bentley 345 
 
 Appleton V. Ld. Braybrook 65, 1290 
 Aranquren v. Scholfield 395 
 
 Arbon v. Fussell 161 
 
 Arohangelo v. Thompson 181, 395 
 
 Archer, Re 889 
 
 Archer v. Baynes 855, 858 
 
 Archer v. English 694, 695 
 
 Archer v. Leonard 901, 907 
 
 Archer v. Walker 695 
 
 Arden v. Sullivan 837 
 
 Arding «. Flower 1114,1118 
 
 ArgoU, Ly. v. Cheney 1522 
 
 Arlettr. Ellis 140 
 
 
 PAGE 
 
 Armani v. Castrique 
 
 714 
 
 Armistead v. Wilde 
 
 195 
 
 Armory v, Delamirie 
 
 131, 142, 478 
 
 Armstrong v. Hewett 
 
 563, 1332 
 
 Armstrong v. Norton 
 
 1412 
 
 Armstrong v. Stockham 
 
 1308 
 
 Arnit's trusts. Re 
 
 122 
 
 Arnold v. Arnold 
 
 266 
 
 Arnold V. Bp. of Bath & W. 1330 
 
 Arnold v. Blaker 
 
 148 
 
 Arnold v. Hamel 
 
 52, 292, 293 
 
 Arnold v. Holbrook 
 
 148 
 
 Arnold v. May. of Poole 
 
 819, 820, 825, 
 
 827 
 
 1457, 1468 
 
 Amott V. Redfern 
 
 Arnsby v. Woodward 
 
 676 
 
 Aruudell v. Ld. Falmouth 
 
 530 
 
 Arundell v. White 
 
 1312 
 
 Ash, Re 
 
 891 
 
 Ashby V. Bates 
 
 333 
 
 Ashby V. James 
 
 910 
 
 Ashcroft V. Morrin 
 
 856, 861 
 
 Ashcroft V. Redford 
 
 57 
 
 Asher v. Whitelock 
 
 143 
 
 Ashnrst v. Mill 
 
 951 
 
 Ashlin V. Lee 
 
 917 
 
 Ashmore, Re 
 
 885 
 
 Ashmore v. Hardy 
 
 668 
 
 Ashpitel V. Bryan 
 
 713 
 
 Ashpitel V. Sercombe 
 
 69, 681 
 
 Ashrufood Dowlah Ahmed v. Hyder 
 
 Hossein Khan 
 
 123 
 
 Ashton's case 
 
 1030 
 
 Ashwell V. Lomi 
 
 164 
 
 Ashworth v. Outram 
 
 Errata 
 
 Ashworth v. Stanwix & Walker 988 
 
 Aslin V. Parkin 
 
 1412 
 
 Aspden v. Seddon 
 
 138 
 
 Astbury v. Belbin 
 
 1120 
 
 Aston, ex parte 
 
 1227 
 
 Astor V. Oiiion Ins. Co. 
 
 969 
 
 Atalanta, The 
 
 123 
 
 Atchin.ion v. Baker 
 
 186 
 
 Atchley v. Sprigg 
 
 123, 551, 799 
 
 Athenry Peer. 
 
 555 
 
 Atherfold v. Beard 
 
 1263 
 
 Atherley v. Harvey 
 
 1224, 1493 
 
 Athlone Peer. 
 
 1328 
 
 Atkins V. Garwood 
 
 199 
 
 Atkins V. Hatton 
 
 562, 1332 
 
 Atkins V. Huuipbrey 
 
 287 
 
 Atkins V. Humphreys 
 Atkins V. Meredith 
 
 418 
 
 402 
 
 Atkins V. Palmer 
 
 451, 452 
 
 Atkius V. Tredgold 
 Atkins V. Ld. Willoughby 
 
 632 
 
 de Broke 562 
 
 Atkinson v. Fosbroke 
 
 464 
 
 Atkinson v. Littlewood 
 
 1024 
 
 Atter V. Atkinson 
 
 171 
 
 Att.-Gen. i/. Ashe 
 
 409 
 
 Att.-Gen. v. Bond 
 
 1218 
 
 Att.-Gen. ii. Boston 
 
 1006 
 
 Att.-Gen. v. Bovet 
 
 455 
 
 Att.-Gen. c. Bowman 
 
 323 
 
TABLE OF CASES CITED. 
 
 XXVll 
 
 PAGE 
 
 Att.-Gen. v. Brazenose Coll. 1004 
 
 Att.-Gen. v. Briant 791, 792 
 
 Att. -Gen. D. May. of Bristol 1005 
 
 Att.-Gen. v. Biilpit 1175 
 
 Att.-Gen. v. Bunce 93 
 
 Att.-Gen. v. Calvert 168 
 
 Att.-Gen. v. Cast Plate Glass Co. 972 
 Att.-Gen. v. Chambers 135 
 
 Att.-Gen. v. Clapham 1006 
 
 Att.-Gen. v. Clerc 249 
 
 Att.-Gen. v. Dakin 4 
 
 Att.-Gen. v. Davison 415 
 
 Att.-Gen. v. Donaldson i 
 
 Att.-Gen. v. Drummond 968, 997, 
 
 999, 1005 
 Att.-Gen. v. Ewelme Hospital 147 
 
 Att.-Gen. v. Fadden 1073 
 
 Att.-Gen. v. Grote 997 
 
 Att.-Gen. v. Hawkes 277 
 
 Att.-Gen. v. Hitchcock i 1210, 1211, 
 1212, 1213, 1215 
 Att.-Gen. v. Eohler 644 
 
 Att.-Gen. v. Lambe 1494 
 
 Att.-Gen. v. Le Marchant 397 
 
 Att.-Gen. v. Coi-p. of London 1494 
 
 Att-Gen. v. Murdoch 1005 
 
 Att.-Gen. v. Naylor 702 
 
 Att.-Gen. v. Parker 1005 
 
 Att.-GBn. V. Parnther 204 
 
 Att.-Gen. v. Earl of Powis 997 
 
 Att.-Gen. v. Kadloff 323, 1141, 1142, 
 
 Att.-Gen. v. Eay 471 
 
 Att-Gen. v. Riddle 129 
 
 Att.-Gen. v. St. Cross. Hosp. 1005 
 
 Att.-Gen. v. Sidney Sussex Coll. 1005 
 Att.-Gen. v. Sitwell 953 
 
 Att.-Gen. v. Skinners' Co. 1120, 1121 
 Att.-Gen. v. Stephens 116, 121, 678, 
 579, 580, 701 
 Att.-Gen. v. Sullivan 1175 
 
 Att.-Gen. v. Theakstone 28, 1389 
 
 Att.-Gen. v. Thompson 1494 
 
 Att.-Gen. v. Tomline Errata 
 
 Att.-Gen. v. "Whitwood Local Bd. 1605 
 Att.-Gen. v. Wilson 1032 
 
 Att. -Gen. of Prince of "Wales v. Grossman 
 
 355 
 Attridge, Re 887 
 
 Attwood V. Small 624 
 
 Attwood V. Taylor 1316 
 
 Attwood V. Welton 1211 
 
 Aubert v. Walsh 186 
 
 Anckland, Earl of 214 
 
 Auckland, Maid of, Re 1423 
 
 Audley, Ld., case of 1161 
 
 Augusta, Bk. of, v. Earle 25, 218 
 
 Augustien v. Challis 365 
 
 Austee v. Nelms 1001 
 
 Austen, Admiral, Re 893 
 
 Austin V. Bunyard 712 
 
 Austin «. Chambers 624 
 
 Austin V. Evans 1033 
 
 Austin V. Guard, of Bethnal Green 823 
 
 PAGE 
 
 Austin V. Olsen 95 
 
 Austin V. Rumsey 422, 1540 
 
 Australasia, Bk. of, v. Breillat 193 
 
 Australasia, Bk. of, v. Harding 1462 
 
 Australasia, Bk. of, v. Nias 1460 
 Australian Roy. Mail St. Nav. Co. v. 
 
 Marzetti 823, 826 
 
 Aveline v. Whisson 837 
 
 Avery v. Pixley 897 
 Aveson v. Ld. Kinnaird 496, 497, 606, 765 
 
 Awdley v, Awdley 618 
 
 Aykroyd, Ee 1427 
 
 Aylesford, Ld. v. Monis 166 
 
 Ayliffe v. Tracy 867 
 
 Aynsley v. Glover 91 
 
 Ayrey v. Davenport 1310 
 
 Ayrton v. Abbott 1396, 1438, 
 
 Ayton V. Bolt 906 
 
 B., falsely called B. v. B. 201 
 
 Babb V. Clemson 665 
 
 Babbage v. Babbage 1139 
 
 Babington v. Mahony 1120 
 
 Back V. Hay 32 
 
 Backhouse v. Bonomi 138 
 
 Backhouse v. Jones 297, 490 
 
 Bacon v. Bacon 779 
 
 Bacon v. Chesney 658, 719 
 
 Baddeley v. Gilmore 449 
 
 Baddeley v. Mortlock 327 
 
 Bagot, Ld., V. Williams 1424, 1426 
 
 Bagueley v. Hawley 984 
 
 Baguley v. Hawley 984 
 
 Bahia, The 1042 
 Bahia & Francisco Ry. Co. , Re, v. Tritten 
 
 706 
 
 Baigent v. Baigent 1507 
 
 Baildon v. Walton 616, 912 
 
 Bailey, ex parte 101, 160 
 
 Bailey, Ee 891 
 
 Bailey i). Appleyard 261, 262 
 
 Bailey v. Bellamy 931 
 
 Bailey v. Bidwell 337, 1534 
 
 Bailey v. Bodenham 43 
 
 Bailey v. Edwards 963 
 
 Bailey v. Harris 1403 
 
 Bailey v. Hyde 329 
 
 Bailey v. Maoauiay 705, 796 
 
 Bailey v. Sweeting 858 
 
 Bailey's case 1438 
 
 Baillie's case 780, 791 
 
 Baillie v. Jackson 20 
 
 Baillie v. Kell 287 
 
 Baillie v. Ld. Inchiquin 905 
 
 Bain v. Case 1326 
 
 Bain v. Fothergill 981, 982 
 
 Bain v. Mason 1481 
 Bain v. Whitehaven & Fumess June. 
 
 Rail. Co. 64, 1485, 1568 
 
 Bainbridge v. Wade 1000 
 
 Bainbrigge v. Baddeley 1418 
 
 Baines ■;;, Swaiuson 140 
 
 Baird ii. Cochran 1232 
 
 Baker v. Baker 1208, 1210 
 
 Baker v. Bradley 164 
 
xxvm 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Baker v. Cave 1365 
 
 Baker v. Dening 890 
 
 Baker i). Dewey 112 
 
 Baker v. Keene 202 
 
 Baker v. Lane 465 
 
 Baker v. Lond. & S. W. Ey. Co. 775, 1497 
 
 Baker ■;;. Monk 165 
 
 Baker v. Oakes 53 
 
 Baker v. Ray 131 
 
 Baker ■». Sampson 200 
 
 Baker v. Stephens 708 
 
 Bakewell's Patent, Ee 154 
 
 Baloetti u. Serani 299 
 
 Baldey v. Parker 876, 877 
 
 Baldney v. Eitchie 398 
 
 Ballard v. "Way 1387 
 
 Balls & Met. Bd. "Works, Ee 924 
 
 Balme v. Button 1183 
 
 Baltazzi v. Eyder 124 
 
 Bamfield v. Massey 330 
 
 Bamfield v. Tupper 911 
 
 Bamford, ex parte 502 
 Banbury Peer. 123, 544, 551, 563, 554 
 
 Banbury's Trusts, Re 175 
 Banbury Union, Guard, of, v. Robinson, 
 
 697 
 Bancroft v. Bancroft & Eumney 1410 
 
 Bandy v. Cartwright 982 
 
 Bank Prosecutions 3.''8 
 
 Banks v. Crossland 868 
 
 Banly, Re 887 
 
 Bannatyne v. Bannatyne 1400 
 
 Banner v. Jackson 787 
 Barbat v. Allen 1135, 1144, 1149, 1169 
 
 Barber, Ee 394 
 Barber v. Holmes 1331, 1480, 1481 
 
 Barber v. Lamb 1457 
 Barber v. "Wood 1018, 1033, 1034, 1035 
 
 Barclay v. Bailey 44 
 
 Barclay v. Maskelyne 895 
 
 Barclay v. Pan-ott 922 
 
 Bardeil v. Pickwick 487 
 
 Barden v. Keverberg 298 
 Bargaddie Coal Co. v. "Wark 766, 965 
 
 Baring v. Clagett 1449, 1453 
 
 Baring v. Clark 513 
 
 Barker v. Buttress 89 
 
 Barker 1). Davis 818 
 
 Barker v. Dixie 1148 
 
 Barker v. Eay 569 
 
 Barker v. Eichardson 625 
 
 Barker v. Stead 1544 
 
 Barkworth v. Young , 859, 867 
 
 Barnard, Re 1309 
 
 Barned's Bking. Co., Ee 1364 
 
 Barnes, ex parte 12.'i9 
 
 Barnes v. Lucas 1537 
 
 Barnes v. Mawson 522, 523, 629 
 
 Barnes v. Pendrey 931 
 
 Barnes v. Trompowsky 1537 
 
 Barnes v. Vincent 1324, 1434 
 
 Bamett v. Brandao 5 
 
 Barnett v. Cox 89, 294 
 
 Barnett v. Glossop 284 
 
 Barnett v. Lncas 
 Barnett v. Tugwell 
 Barnstable v. Lathey 
 Barough v. White 
 Barr v. Gratz 
 
 PAGE 
 
 1420 
 
 210 
 
 1261 
 
 624, 662 
 
 562, 566, 1394 
 
 Barraolough v. GreenhoHgh 1471 
 
 Barraclough v. Johnson 528 
 
 Barren, Ee 101 
 
 Barrel! v. Trussell 836 
 
 Barrett v. Buxton 950 
 
 Barrett v. Hyndman 862 
 
 Barrett v. Long 313 
 
 Barrett v. Eolfe 840 
 
 Barrett v. "Wilson 1467 
 
 Barrick v, Buba 446 
 
 Barron v. Daniel 1288 
 
 Barronet's ease 97 
 
 Barrow v. Humphreys 1066 
 
 Barrs v. Fewkes 1027 
 
 Barrs v. Jackson 1405, 1434 
 
 Barry v. Barclay 449 
 
 Barry v. Bebbington 359, 571 
 
 Barry u Butliu 171 
 
 Barrymore, Ld., o. Taylor 621 
 
 Barstow's case 730 
 
 Barthelemy v. The People, &c. 500 
 
 Bartholomew v. Stephens 396, 408 
 
 Bartlett v. Delprat 493, 665 
 
 Bartlett v. Downes 151 
 
 Bartlett «. Gillard 619, 1025 
 
 Bartlett v. Lewis 466 
 
 Bartlett v. Pentland 190 
 
 Bartlett v. Pickersgill 851 
 
 Bartlett v. Smith 34, 35 
 
 Bartlett v. "Wells 706 
 
 Barton v. Dawes 962, 1021 
 
 Barton v. Dupuy 1313 
 
 Barton v. Palmes 419, 420 
 
 Barton v. Robins 170 
 Bartonshill Coal Co. v. M'Guire 987,988 
 Bartonshill Coal Co. v. Reid 987, 988 
 
 BarweU v. Adkins 314 
 Barwick u English Joint Stock Bk. 761 
 
 Barwis v. Keppel 1191 
 
 Basan v. Arnold 261 
 
 Baseley v. Forder 200, 202 
 
 Bass V. Clive 712 
 Bastard v. Smith 654, 1219, 1287 
 
 Bastard v. Trutch 158 
 
 Basten v. Carew 1395, 1397 
 
 Bastin v. Carew 1173 
 
 Batchelor v. Honeywood 1548 
 
 Bate V. Hill 330 
 
 Bate V. Kinsey 132, 408, 780 
 
 Bateman v. Bailey 600, 503, 504, 665 
 
 Bateman v. Phillips 855, 963 
 
 Bateman v. Finder 904 
 
 Bateman v. Ld. Rodeu 941 
 
 Bates V. Don Pablo Sora 214 
 Bates V. Townley 669, 670, 1468 
 
 Bateson v. Hartsink 773 
 
 Bath, Ld., v. Bathersea 616 
 
 Bathurst v. Erringtou Errata, 
 
 Batley v. Kj'nock 1042, 1043 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 
 PAGE 
 
 Batten, Re 
 
 888 
 
 Batthews v. Galindo 
 
 703, 1147 
 
 Batturs v. Sellers 
 
 683 
 
 Baugh V. Cradocke 
 
 779 
 
 Baumann v. James 
 
 867 
 
 Baxter v. Brown 850, 871, 872 
 
 Baxter v. Nurse 185 
 
 Bayard «. Malcolm 945 
 
 Bayley v. Ashton 911 
 
 Bayley v. Bradley 113, 119 
 
 Bayley v. Buckland 1411 
 
 Bayley v. M. of Conyugham 837 
 
 Bayley v. Griffiths 462 
 Bayley v. Overseers of Nantwich 188 
 
 Bayley v. "Wllkins 190 
 
 Bayley w. Wylie 1317,1321 
 
 Bayliffe v. Butterworth 189, 190 
 Baylis v. Lawrence 54, 61, 62, 100 
 
 Baynton's case 477 
 
 Bazeley v. Forder 200, 202 
 
 Beadle, Re 887 
 
 Beadon «. King 778 
 
 Beal V. Bird 1492 
 
 Beal V. S. Dev. Ry. Co. 918 
 
 Beale v. Sanders 837 
 
 Bealli). Back 658 
 
 Bealy v. Greenslade 911 
 
 Beamish v. Beamish 1354 
 
 Beamon v. EUice 1174 
 
 Beau V. Quimby 777 
 
 Beardmau v. "Wilson 840 
 
 Beardmore v. Wilson 840 
 
 Beardslee v. Richardson 501 
 
 Beasley v. Magrath 636 
 
 Beasney's Trusts, Re 208 
 
 Beatson v. Skene 797 
 
 Beattie v. Ld. Ebury 990 
 
 Beauchamp v. Cash 1549 
 
 Beauchamp v. Parry 662 
 Beaufort, D. of, «. Ashburnham 446,1041 
 
 Beaufort, D. of, v. Crawshay 35, 453, 454 
 
 Beaufort, D. of, v. Keald 702 
 Beaufort, D. of, v. May. of Swansea 
 
 147, 1006 
 Beaufort, D. of, o. Smith 147, 521, 522, 
 529, 531, 1322, 1387 
 
 Beaumont v. Brengeri 878 
 
 Beaumont v. Fell 1010 
 
 Beaument v. Field 1003 
 
 Beaumont v. Mountain 1279 
 
 Beaumont v. Perkins 1550 
 
 Beaurain v. Sir "W. Scott 668 
 
 Beavan v. M'Donnell 313 
 Bechervaise v. Gt. West. Ry. Co. 465 
 
 Beck and Jackson, Re 1320 
 
 Beckett v. Button 234 
 
 Beckett v. Howe 886 
 
 Beckett v. Corp. of Leeds 136 
 
 Beckford v. Beckford 850 
 
 Beckham v. Drake 848 
 
 Beckham v. Osborne 624 
 
 Beckton v. Barton 1024 
 
 Beckwith v. Benuer 788 
 
 Beckwith V. Sydebotham 1193,1194 
 
 PAGE 
 
 Beoquet v. MacCarthy 1448, 1449, 1460 
 Bedford, E. of, v. Exeter, Bp. of 1415 
 
 Bedford, D. of, v. Lopes 385, 566 
 
 Bedford,shire case 637 
 
 Beech v. Jones 1182, 1185 
 
 Beech v. White 282 
 
 Beecher v. Major 851 
 
 Beeching v. Gower 1168 
 
 Beeman v. Duck 713 
 
 Beer v. Walker 985 
 
 Beer v. Ward 1555 
 
 Bees V. Williams 844 
 
 Beeston v. CoUyer 185 
 
 Belbinu Skeats 357, 1539 
 
 Belcher 0. M'Intosh 332,333 
 
 Beldon v. Campbell 215 
 
 Belfast Dock Act, Re 303 
 
 Bell V. Ansley €36 
 
 Bell V. Bruen 958 
 
 Bell V. Chaytor 1535 
 
 Bell V. Fothergill 173 
 
 Bell V. Frankis «73, 675 
 
 Bell V. Howard 955 
 
 Bella Kennedy 215, 216 
 
 Bell u. Morrison 511 
 
 Bell V. Parke S28, 329 
 
 Bell V. Simpson 101 
 
 Bell V. Stewart 1243 
 
 Bell V. Warden 51 
 
 Bell V. Wilson 60 
 
 BeU's Case 735 
 
 Bellerophon, H.M.S. 797 
 
 Bellinger v. The People 1225 
 
 Bellinger's case 746 
 
 Bempd^ v. Johnstone 216 
 
 Bend v. Georgia Ins. Co. 973 
 
 Bender v. Zimmerman 462 
 
 Benesh v. Booth 922 
 
 Bengal, The 1421 
 
 Benham v. Newell 1024, 1026 
 
 Benham's Trusts, Re 207 
 
 Beumore, The 334 
 
 Bennet v. Hartford 1158 
 
 Bennet v. Watson 1030 
 
 Bennett v. Blain 872 
 
 Bennett v. Brumfitt 891 
 
 Bennett v. Gamgee 111 
 
 Bennett v. Glave, Re 1021, 1090 
 
 Bennett v. Griffiths 483 
 
 Bennett v. Houldsworth 1024 
 
 Bennett i;. Hyde 329 
 
 Bennett v. Marshall 1008 
 
 Bennett v. Taylor 1537 
 Bennett o. The State of Tennessee 27 
 
 Benniou v. Davison 689, 690 
 
 Bennison v. Walker 225 
 
 Benson v. Benson 896 
 
 Benson v. Chapman 261 
 
 Benson v. Marshal 662 
 
 Benson v. Olive 205, 420 
 
 Benson v. Post 1263 
 
 BentaU v. Burn 879 
 
 Bentall v. Sidney 1287 
 
 Bentley v. Cooke 1151 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 PARE 
 
 Bentley, Dr., case of 1451 
 
 Beutley v. Mackay 703, 951, 952 
 
 Benton V. Sutton 49 
 
 Benyon v. Cresswell 832 
 
 Bonyon v. Fitch 166 
 
 Benyon v. Nettlefold 110, 949 
 
 Bere t>. Ward 106 
 
 Beresford v. Easthope 448 
 
 Berkeley Peer. 396, 487, 518, 635, 536, 
 538, 539, 644, 546, 547, 551, 652, 569, 
 1160, 1242 
 
 Berkeley v. Hardy 827 
 
 Bermon v. Woodbridge 616, 616 
 
 Bernard! v. Motteux 1452 
 
 Bernasconi v. Atkinson 1014, 1016 
 
 Bernasconi v. Farebrother 639 
 
 Berne, City of, v. Bk. of England 3 
 Berney, v. Bp. of Norwich 811, 1141 
 
 Beruey v. Read 1319 
 
 Berrey v. Lindley 837, 838 
 
 Berridge v. Ward 136 
 
 Berry v. Alderman 337 
 
 Berry u Banner 523,1408 
 
 Berry v. Pratt 1042 
 
 Berryman v. Wise 178, 182, 672 
 
 Berthon v. Loughman 1193 
 
 Bertie v. Beaumont 106, 564 
 
 Berwick's case 726 
 
 Berwick v. Horsfall 59 
 Berwick-upon-Tweed, May. & Corp. of, 
 
 V. Murray 1205 
 
 Berwick, May. of, v. Oswald 953 
 
 Besant v. Cross 961 
 
 Besley, ex parte 705 
 
 Begsela v. Stern 1137 
 
 Be.ssey v. Windham 615, 1436 
 
 Betham v. Benson 513 
 
 Bethell v. Blencowe 369, 372 
 
 Betteley v. McLeod 1044 
 
 Betteley v. Eeid 710 
 
 Bettsi). Bagley 1396 
 
 Betts V. De Vitre 130 
 
 Betts v. Menzies 57, 58, 776 
 
 Betts V. Starr 1398 
 
 Betty V. Nail 545 
 
 Bevan v. Bevan 1441 
 
 Bevan v. Gething 912 
 
 Bevan v. Hill 395 
 
 Bevan v. McMahon 1243 
 
 Bevan v. Waters 788 
 
 Bevan v. Williams , 182, 671 
 
 Beveridge v. Minter 765 
 
 Beverley v. Beverley 205 
 
 Beverley, May. of, v. Craven 1321 
 Beverley n. Lincoln Gas Light & Coke 
 
 Co. 821, 826 
 
 Beverley's case 659 
 
 Bewley v. Power 904, 906 
 
 Beynon v. Cook 166 
 
 Beynon v. Garrat 715 
 
 Bhear v. Harradine 1467 
 
 Bibb V. Thomas 896, 897 
 
 Biocard v. Shepherd 978, 979 
 
 Bickett i: Morris 135, 677 
 
 PAGE 
 
 Bickford v. D'Arcy 465, 466 
 
 Biddle v. Bond 710 
 
 Biddulph ». Chamberlayne 264 
 
 Biel, Baron de, v, Hammersley 866 
 
 Biffin V. Bignell 200 
 
 Biggj). Strong 677 
 
 Bigg V. Whisking 876 
 
 Bigge V. Parkinson 985, 986 
 
 Biggs V. Lawrence 949 
 
 Biggs V. Sadlier 379 
 
 BigneUu. Clarke 249 
 
 Bigsby V. Dickinson 1560, 1561 
 
 Bilbie v. Lumley 97 
 
 Bill V. Bament 859, 877 
 
 Billage u. Southee 165 
 
 Billing V. Welsh 105 
 
 Billingshurst v. Vickers 169, 170 
 
 Bills V. Smith 101 
 
 Bingham v. Stanley 337, 689 
 
 Birch, Ee 154 
 
 Birch V. Birch 172 
 
 Birch V. Depeyster 996 
 
 Birch V. Edwards 922 
 
 Birch V. Ld. Liverpool 868 
 
 Birch V. Eidgway 1661 
 
 Birch V. Sonierville 1160, 1165, 1169 
 
 Bird V. Boulter 927 
 
 Bird V. Gammon 864, 906 
 Bird V. Higginson 353, 817, 818 
 
 Bird V. Malzy 4H5 
 
 Bird V. Randall 1415 
 Birkenhead, Lane. & Cheshire June. 
 
 Eail. Co. V. Brownrigg 1485 
 Birkenhead, Lane. & Cheshire Juno. 
 
 Railway Co. v. Pilcher 122 
 
 Birkmyr v. Darnell 862 
 
 Birks V. Birks 895 
 
 Birmg., May. of, v. Allen Srrata 
 Birmg., Brist. & Thames June. Ry. Co. 
 
 V. White 1260, 1265, 1492 
 
 Birt, Re 889 
 Birt V. Barlow 181, 377, 495, 1481 
 
 Birt V. Eothwell 27 
 
 Bishop V. Chambre 1514 
 
 Bishop V. Helps 188 
 
 Bishop D. Howard 184 
 
 Bishop ■!). Countess of Jersey 193 
 
 Bittlestou V. Cooper 652 
 
 Bittlestone v. Cooke 101 
 
 Black V. Lord Braybrook 65, 1290 
 
 Black V. Holmes 797 
 
 Black V. Jobliiig 174 
 
 Blackburn v. Hargreave 1034 
 
 Blackburn v. Mackey 202 
 
 Blackburn Union v. Brooks Errata 
 
 Blackett v. Lowes 624 
 BlackettD. Eoy. Ex. Ass. Co. 971, 972 
 
 Blackham's case 1434 
 
 Blackie v. Pidding 395 
 
 Blacquiere v. Hawkins 8 
 
 Blagi'ave v. Blagrave 418, 420 
 
 Blagrave v. Bristol Waterw. Co. 265 
 
 Blague V. Gold 1019 
 
 Blair, Re 891 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 
 PAGE 
 
 Blair v. Ormoiid 
 
 909 
 
 Blake v. Attersoll 
 
 938 
 
 Blake v. Beaumont ' 
 
 252 
 
 Blake v. Concannon 
 
 122 
 
 Blake ». Jennings 
 
 1473 
 
 Blake v. Johnson 
 
 204 
 
 Blake v. Knight 
 
 886, 886 
 
 Blake v. Piliord 
 
 798 
 
 Blakemoie v. Glamorganahiie Can. Co. 
 1400, 1408, 1414 
 Bland v. Bland 1410 
 
 Bland v. Swafford 1066 
 
 Blandy v. De Burgh 203 
 
 Blankley v. Winstanley 1006 
 
 Blayney's Trusts, Ke 1014 
 
 Bleakleyu Smith 856, 860 
 
 Blenkinsop v. Blenkinsop 780 
 
 Blewett V. Tregonning 1242 
 
 Blewitt V. Roberts 174 
 
 Bligh V. Brent 871 
 
 Bligh V. Brewer 930 
 
 Bligh V. Wellesley 392 
 
 Blight V. Fisher 1124 
 
 Blight V. Goodliffe 463 
 
 Bloomer v. Spittle 952 
 
 Bloomfield v. Wharton 135 
 
 Blossom V, Cannon 146 
 
 Blount V. Burrow 616, 618 
 
 Blower v. G. W. Ry. 980 
 
 Bloweri). Hollis 1314, 1316 
 
 Bloxam v. Elsie 372, 373 
 
 Bluok V. Gompertz 1516 
 
 Bluek V. Rackman 24, 346 
 
 Blundell v. Catterall 135 
 
 Blundell v. Gladstone 941, 997, 1010, 
 
 1014 
 Blunt V. Lack 8 
 
 Blyth V. Archbold 177 
 
 Blyth V. Dennett 676 
 
 Boardman v. Jackson 681 
 
 Boardman u. Reed & Ford's lessees 1019 
 Boast V. Firth 990 
 
 Boddington v. Schlencker 43 
 
 Boddy V. Boddy _ 313 
 
 Bodger v, Areh * 909 
 
 Bodmin United Mines Co., Re 9 
 
 Body, Re 394 
 
 Boelen v. Melladew 450 
 
 Boethlinok v. Schneider 1196 
 
 Bogert V. Cauman 945 
 
 Bohuu V. Delessert 156 
 
 Boileau v. Rutlin 554, 641, 687, 719, 
 
 1465 
 Bolckow V. Seymour 69 
 
 Bold i;. Hutchinson 703, 867, 961 
 
 Bold V. Rayner 383, 970 
 
 Bolding V. Lane 916 
 
 Boldron v. Widdows 283, 298 
 
 Bolinghrooke, Ld., n. Local Board of 
 Swindon 761 
 
 Bolingbroke, Ld., v. Townsend 235 
 
 Bolland, Ex parte 1091,1095 
 
 Bolton V. Bolton 1317 
 
 Bolton V. Bp. of Carlisle 843, 1520 
 
 FAGB 
 
 Bolton V. Corp. of Liverpool 769, 777, 
 778, 784, 1261, 1494 
 
 Bolton V. Gladstone 1452 
 
 Bolton V. Sherman 656 
 
 Bolton, Ld., V. Tomlin 1183 
 
 Bond V. Douglas 316 
 
 Bond V. Eosling 834 
 
 Bonfield v. Smith 349, 1188 
 
 Bonomi v. Backhouse 138 
 
 Bonzi V. Stewart 690 
 
 Booker v. Allen 1026 
 
 Boorraan v. Johnston 943 
 
 Boosey v. Davidson 371 
 
 Booth V. Briscoe Errata, 
 
 Booth V. Clive 293 
 
 Booth V. Grove 262 
 
 Booth V. Kennard 57 
 
 Booth V. Millns 350, 353 
 
 Booth V. Turle 849 
 
 Bootle V. Blundell 1539 
 Bordier v. Burrelt 221, Errata 
 
 Borthwick Peer. 553 
 
 Bosanquet, Re 885 
 
 Bosanquet v. Anderson 713 
 
 Boswell V. Smith 186 
 Bosworth ■;;. Cotchett 585, 589, 690 
 
 Botham v. Swiugler 414, 1170 
 
 Bothe's case 1253 
 
 Bothnia, The 212 
 
 Botting V. Martin 840 
 
 Bottomley v. Forbes 993 
 
 Boucher v. Lawson 1454 
 
 Boucher v. Manay 237 
 
 Bouchier v. Tajlor 1402, 1405 
 
 Bouillon V. Lupton 978 
 Boulter v. Peplow 372, 373, 379 
 
 Bourdin v. Greenwood 903 
 
 Bourne v. Fosbrooke a 819 
 
 Bourne v. Gatliffe 68, 993 
 
 Bours ■». Tuckerman 1120 
 
 Bousfield V. Mould 1169 
 
 Bovill V. Pimm 57 
 
 Bowden v. Allen 1227 
 
 Bowden v. Henderson 206 
 
 Bowden v. Home 1425 
 
 Bowen v. Owen 55 
 
 Bowerbank v. Monteiro 958 
 
 Bowers v. Nixon 231, 237 
 Bowes V. Foster 110, 617, 719 
 
 Bowes V. Pontifex 880 
 
 Bowes V. Shand 67 
 
 Bowkert). Burdekin 1526 
 
 Bowlby V. Ball 872 
 
 Bowles V. Jackson 892 
 
 Bowles 1). Johnson 1034, 1044 
 
 Bowles V. Langworthy 1532 
 
 Bowman, Re 1256 
 Bowman v. Bowman 1178, 1533, 1639 
 
 Bowman v. Hodgson 367 
 
 Bowman v. tforsey 970 
 
 Bowman v. Manzelman 408 
 
 Bowman v. Nichol 1515 
 
 Bowman v. Norton 774, 780 
 
 I Bowman v. Eostron 108, 718 
 
xxxu 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 Bowman v. Taylor 
 
 107, 113 
 
 Bowring v. Shepherd 
 
 190 
 
 Bowsher v. Galley 
 
 510 
 
 Boyce v. Douglas 
 
 1415 
 
 Boyce v. Green 
 
 856, 872 
 
 Boyce v. Eusboro 
 
 448 
 
 Boyd V. Bolton 
 
 677, 682, 683 
 
 Boyd V, M'Lean 
 
 851 
 
 Boyd v. Moyle 
 
 233 
 
 Boyd V. Petrie 
 
 1506 
 
 Boyd V. The State 
 
 742 
 
 Boy dell «. Drummond 
 
 868, 868 
 
 Boydell's case 
 
 644 
 
 Boyle V. Mulholland 
 
 1021 
 
 Boyle V. Wiseman 
 
 35, 396, 1235 
 
 Boynton v. Kellogg 
 
 327, 1240 
 
 Boys V. Ansell 
 
 233 
 
 Boys V. Williams 
 
 997 
 
 Boyse v. Colclough 
 
 1448 
 
 Bracegirdle v. Heald 
 
 868 
 
 Bracegirdle v. Hinka 
 
 286 
 
 Bradford v. Eomney 
 
 952 
 
 Bradley v. Arthur 
 
 5, 1191 
 
 Bradley v. Beckett 
 
 108 
 
 Bradley ■!;. Bradley 
 
 1418 
 
 Bradley v, Holdsworth 
 
 871 
 
 Bradley v. James 
 
 578, 686 
 
 Bradley v. Pilots of Newcastle 1006 
 
 Bradshaw v. Bennett 1536 
 Bradshaw v. Mxirphy 1233, 1264 
 
 Bradshaw v. Vaughton 1356 
 Bradstreet v. Nept.Ins. Co. 1446, 1451, 
 
 1463 
 
 Brady v. Cuhitt 851 
 
 Brady v. Curran 657 
 
 Brady v. Oastler 947 
 
 Brady v. Tod 513 
 
 Brady v. Todd 614 
 
 Brain v. Preece 594 
 
 Braithwaite v. Gardiner 712 
 
 Bramwell v. Lucas 786 
 
 Brandao ii, Barnett 6 
 
 Brandford v. Freeman 363 
 
 Branton v. Griflats 936 
 
 Branwell v. Penneck 1438 
 
 Brashier v. Jackson 237, 239 
 
 Brasier's case 1167 
 
 Brassington v. Brassington 410 
 
 Braim v. MoUett 447, 450 
 
 Bray v. Hadwen 42 
 
 Braye Peer. 529 
 
 Brazier v. Jones 1319 
 
 Breadalbane case 129, 180 
 Breadalbane, M. of, v. M. of Chandos 1425 
 
 Breadalbane Peer. 217 
 
 Breckon v. Smith 669 
 
 Breech Loadg. Arm. Co., Ko 1078 
 
 Breeze v. Hawke 1337 
 
 Brembridge v. Osborne 186 
 
 Bremer v. Freeman 1197 
 
 Brenan's case 9, 102 
 
 Brenchley v. Still 886 
 
 Brennan t). Dillaiie 1315 
 
 Breunan v. Howard 236, 239 
 
 PAGj; 
 Brennan v. Moran 1023 
 
 Brest 1). Lever 143 
 
 Breton D. Cope 186, 1337, 1481, 1532 
 Brett V. Beales 522, 529, 566, 1279, 1387 
 Brettel v. Williams 193 
 
 Bretton v. Prettiman 642 
 
 Brew i>. Haren 1416, 1468 
 
 Brewer v. Knapp 186 
 
 Brewer v. Palmer 365 
 
 Brewis, Re 891 
 
 Brewster, Re 898 
 
 Brewster v. Sewell 356, 388, 392, 412 
 Brickell v. Hulse 418, 641, 664 
 
 Bridge v. Eggleston 665 
 
 Bridge v. Gray 1425 
 
 Bridge v. Sumner 1441 
 
 Bridges v. N". Lond. Ry. 60 
 
 Bridges v. Potts 46 
 
 Bridget Feltham, Re 1014 
 
 Bridgewater, Ld., case of 1488 
 
 Bridgman v. Jennings 660 
 
 Bridgwater Tmst. v. Bootle-cum-Linacre 
 
 136, 136 
 Bridson v. Smith 691 
 
 Briggs, ex parte 1258 
 
 Briggs V. Aynsworth 352 
 
 Briggs V. Wilson 585, 690, 905 
 
 Brigham v. Rogers 962 
 
 Bright V. Hutton 705 
 
 Bright V. Legerton 693 
 
 Bright V. Walker 144, 149 
 
 Brigstocke v. Smith 902, 906 
 
 Brine v. Bazalgetto 324, 325 
 
 Bringloe v. Goodson 1532, 1537 
 
 Brinsmead v. Harrison 1414 
 
 Brisoo V. Lomax 301, 522, 524, 531, 
 632, 1408 
 Briscoe v. Stephens 1436 
 
 Bristol, city of, v. Wait 389 
 
 Bristow V. Brown 963 
 
 Bristow D. Miller 512, 910 
 
 Bristow V. De Secqueville 1198 
 
 Bristow 11. Sequeville 63, 1198 
 
 Bristow V. Wright 247, 253 
 
 British Empire Ass. Co. v. Browne 861 
 British Linen Co. v. Drummond 65 
 
 British Pro7. Life k Fire Ass. Co. , Re 161 
 Brittain v. Kinnaird 1396, 1407, 1438 
 Britten, ex parte 1114 
 
 Britton v. G. West. Cotton Co. 988 
 
 Broad v. Ham 40 
 
 Broad v. Pitt 768, 770, 772 
 
 Bi-ocas V. Lloyd 1043, 1044, 1066 
 
 Brock V. Kent 639 
 
 Brockbauk v. Anderson 1170 
 
 Brodie v. Brodie 499 
 
 Brodie v. Howard 215, 631 
 
 Brogan's case 759 
 
 Bromage i>. Prosser 13a 
 
 Bromfield v. Jones 250 
 
 Bromley v. Smith ] 66 
 
 Bromley v. Wallace 327 
 
 Bromwich's case 438 
 
 Brook & Delcomyn, Re 1451 
 
TABLE OF CASES CITED. 
 
 Brook V. Hook 
 Brook V. Jenney 
 Brooke, Ee 
 Brooke v. Haymea 
 Brooke v. Kent 
 Brooke v. Spong 
 Brooker v. Scott 
 Brooks 11. Blanshard 
 Brooks V. Mitchell 
 Broomfield v. Smith 
 Brough V. Parkins 
 Brounker, Ld., v. Atkyns 
 Brown, Ee 
 
 PAGE 
 59 
 
 160 
 
 899 
 
 113 
 
 899 
 
 280 
 
 56 
 
 223 
 
 662 
 
 286 
 
 24 
 
 1488 
 
 173, 474, 887, 895, 
 
 901 
 
 Brown & Croyd. Can. Co., Ec 1467 
 
 Brown v. Ace. Cott. Sp. & Man. Co. 988 
 Brown v. Aokroyd 200 
 
 Brown v. Armstrong 379 
 
 Brown v. Batohelor 1000 
 
 Brown v. Brown 173, 174, 447, 455, 474, 
 
 895, 901 
 Brown v. Brown & Paget 1138 
 
 Brown v. Byrne 976 
 
 Brown v. Dawson 1024 
 
 Brown v. Edgingtou 986 
 
 Brown v. Foster 783, 787 
 
 Brown v. Getchell 1122 
 
 Brown v. Goodwin 330 
 
 Brown v. Kempton -v 101 
 
 Brown v. Langley ^ 958 
 
 Brown v. Leeson 799 
 
 Brown u M'Dermott 1118 
 
 Brown ». Payson 787, 789 
 
 Brown v. Perkins 782 
 
 Brown v. Philpot 336 
 
 Brown v. Pinkham 1618 
 
 Brown v. Eobins 138 
 
 Brown v. Symons 184 
 
 Brown v. Thames & Mersey Mar. Ins. Co. 
 
 1503 
 Brown v. Thornton 64 
 
 Brown v. Wood 145 
 
 Brown v. Woodman 384, 474 
 
 Brown v. Wootton 1415 
 
 Brown's case 1151 
 
 Browne v. Camming 1254 
 
 Browne v. Gisborne 1072 
 
 Browne v. Murray 35] 
 
 Brownell v. Bonney 675 
 
 Browning v. Budd 169, 170 
 
 Browning v. Paris 904 
 
 Browning v. Sabiu 1069 
 
 Brownsword v. Edwards 122.?, 1224, 
 
 1435 
 Bruce v. Bruce 216 
 
 Bruce i). Nioolopulo 157, 396 
 
 Bruce v. Wait 8 
 
 Bruin v. Knrott 8 
 
 Brune v. Thompson* 26, 580, 1006 
 
 Brunswick, D. of, v. Harmer 1188 
 
 Brutt V. Picard 1517 
 
 Bryan v. Child 936 
 
 Bryan v. Wagstaff 403 
 
 Bryan v. White 890 
 
 PAGE 
 
 Bryan v. Winwood 140, 301 
 
 Bryan Reynolds, Ee 900 
 
 Bryant v. Eicke 223 
 
 Bryant v. Foot 25, 147 
 
 Bryce, Re 890 
 
 Brydges v. BranfiU 452 
 
 Brydges v. Fisher 448 
 
 Brydges v. Walford 715 
 Buccleuoh, D. of, v. Met. Board of Works 
 
 790 
 
 Buchanan v. Eucker 1449, 1450 
 Buoher v. Jarratt 370, 371, 406 
 
 Buckell V. Bleakhorn 882 
 
 Bucket V. Church 59, 902 
 
 Buckhouse v. Crossby 955 
 Buckingham, D. of, v. Com. of Inl. Rev. 
 
 355 
 Buckland v. Johnson 235, 1415, 1419, 
 
 1421 
 
 Buckle V. Knoop 189, 991 
 
 Buckler v. Millerd 948 
 
 Buckley v. Beardsley 854 
 
 Buckley v. Cooke 1200 
 
 Buckley v. U. S. 1331 
 
 Buckmaster v. Cox 1119 
 
 Buckmaster v. Meiklejolin, 687 
 
 Buckmaster v. Eussell 905 
 
 Buckminster u Perry 1190 
 
 Budding v. Murdock 227 
 
 Bulkley v. Littlebury 1023 
 
 Bull V. Loveland 773, 1232 
 
 Bull V. O' Sullivan 712 
 
 Bull V. Parker 65 
 
 BuUen v. Michel 563, 676 
 
 Bulley V. Bulley 113 
 
 Bulmer i). JSTorris 871 
 
 Bulwer v. Home 699 
 
 Bunbury v. Bunbury 774 
 
 Bunbury v. Matthews 178 
 
 Bunn V. Bunn 1228 
 
 Bunn V. Markham 819 
 
 Bunting's case 1402 
 
 Burbidge v. Eobinsom 1504 
 
 Burchell v. Clark 385 
 
 Burchfield v. Moore 1516 
 
 Burder v. O'Neill 811, 1141 
 
 Burgess v. Burgess 645 
 
 Burgess v. Clements 195 
 
 Burgess v. Laue 634 
 
 Burgess v. Langley 796 
 
 Burgess v. Wickhaia 978 
 
 Burgh V. Legge 233 
 
 Burghart v. AuCTersteim 649, 1478 
 
 Burghart v. Hall 65 
 
 Burgoyne v. Showier 886 
 
 Burke v. Moore 886 
 
 Burleigh v. Stibbs 384 
 
 Burling v. Paterson 162 
 
 Burls V. Burls 394 
 
 Burmester v. Noma 193 
 
 Burn V. Boulton 908, 912 
 
 Burnand v. Nerot 1289 
 
 Buruby v. Bollett 985 
 
 Bm-nham v. Bennett 162 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 Burnhain v. Webster liiS, 1451, 1453, 
 
 1461 
 
 Burnaide v. Dayrell 705 
 
 Burr's case 794, 797 
 
 Burr V. Harper 1546, 1547 
 
 Burrell v. Nicholson 353, 1262, 1494 
 
 Burrough v. Martin 1180, 1183 
 
 Burrows v. Baker 906 
 
 Burt, Ee 889 
 
 Burt, ex parte 1118, 1120 
 
 Burt V. Burt 181 
 
 Burt V. Palmer 639 
 Burt V. Walker 421, 422, 1538, 1540 
 
 Burtenshaw v. Gilbert 899 
 Burton & Saddler's Co., Ee 1259, 1260 
 
 Burton v. Ld. Darnley 788 
 
 Burton v. Griffiths 50 
 
 Burton v. Issitt 611 
 
 Burton v. Newbery 892 
 
 Burton v. Payne 398 
 
 Burton v. Plumraer 1181, 1182, 1183 
 
 Burton v. Eeevell 833 
 
 Bury V. Blogg 23, 237 
 
 Bury V. Oppenheim 165 
 
 Bush V. Fox 57, 58 
 
 Bush V. Green 293 
 
 Bush V. Martin 903 
 
 Bushel V. Wheeler 877, 880 
 
 Bushell's case 34 
 
 Bussard v. Levering 187 
 
 Bussey v. Barnett 286 
 
 Bustros V. White 4, 774, 1492, 1493, 
 
 1498 
 
 Butcher v. Steuart 863 
 
 Butcher's case 1294 
 
 Butchers' Co. v. Jones 414, 1170 
 
 Butler V. Allnutt 189 
 
 Butler V. Carver 414, 1170 
 
 Butler V. Ford 178 
 
 Butler V. Moore 771 
 
 Butler V. Mountgarret 176, 187, 536, 
 545, 553 
 
 Butler V. Wright 693 
 
 Buttemere v, Hayes 8' 9 
 
 Butts V. Swartwood 1162 
 
 Buxton V. Cornish 366 
 
 Buxton V. North East Ry. Co. 980 
 
 Buxton V. Eust 858 
 
 Byam v. Booth 1321 
 
 Byne, ex parte 1114 
 
 Byrd, Ee 886 
 
 Byrd v. Nunn Errata 
 
 Byrne v. Boadle 196 
 
 Byrne v. Frere 419, 420 
 
 BjTne V. Harvey 402 
 
 Byrom t>. Thompson l-ili, 1617 
 
 Bywater v. Eicliardson 977 
 
 Caballeeo v. Slater 854 
 
 Caddiok v. Skidinore 858, 870 
 
 Cadge, Re 172 
 
 CaJdbeck v. Buon 789 
 
 Calder v. Doliell 963 
 
 Calder v. Halket 1395 
 
 Caldwell v. Hunter 28 
 
 PAGE 
 
 Caldwell v. Pagham Harb. Reo. Comm. 
 
 228 
 Caldwell f. Parker 1516 
 
 Caledonian Ry. Co. v. Sprot 138 
 
 Call V. Dunning 1532 
 
 Callaghan v. Pepper 827 
 
 Callan, Ee 394 
 
 Callans v. Sherry 1120 
 
 Galley v. Richards 777, 778, 785 
 
 Callow V. Howie 635 
 
 Calmady v. Eowe 135, 147 
 
 Calvert v. Bovill 1450, 1453 
 
 Calvert v. Flower 1218, 1512 
 
 Calvert v. Scinde Ry. Co. 1043 
 
 Calye's case 195 
 
 Calypso, The 1423 
 
 Cameron's Coalbrook Ry. Co.,Ee 410, 411 
 Cameron «>. Lightfoot 718, 1122, 1123 
 Camfield v. Bird 314 
 
 Cammell v. Sewell 1398, 1401, 1452 
 Camoys, Ld., v. BlundeU 1013, 1014 
 Camoys Peer. 554, 656, 558 
 
 Campbell, ex parte 788 
 
 Campbell D. Att. -Gen. 1103 
 
 Campbell v, Campbell 1024 
 
 Campbell v. Christie 1514 
 
 Campbell v. Ualhousie, E. of 469 
 
 Campbell v. Hodgson 961 
 
 Campbell v. McConaghey 174 
 
 Campbell v. Eickards 1192, 1193 
 
 Campbell v. Twemlow 1147 
 
 Campbell v. Webster 675 
 
 Campion's case 744 
 
 Canada, West of. Oil Co., Ee 447 
 
 Canal Bk. v. Bk. of Albany 714 
 
 Cann v. Clipperton 293 
 
 Cannam v. Farmer 350, 704 
 
 Cannan v. Hartley 845 
 
 Cannell v. Curtis 179 
 
 Canning's, Eliz., case 1130 
 
 Capron v. Capron 169 
 
 Carbonell v. Bessell 448 
 
 Cardwell v. Martin 1615, 1524 
 
 Carew v. White 1495 
 
 Carey v. Atkins 646 
 
 Carey v. Pitt 1547, 1548 
 
 CargiU v. Bower 228 
 
 Cariss v. TattersaU 1514 
 
 Carlisle, May. of, 0. Blamire 384, 718 
 Carlisle v. Eady 414, 1170 
 
 Carlisle v. Whaley 940 
 
 Carlos V. Brook 1237 
 
 Carmalta. Post 1188 
 
 Carmarthen, May. of, v. Lewis 232, 824 
 Carnarvon, Ld., v. Villebois 623, 532 
 Carne v. Nicholl 680, 681 
 
 Carne v. Steer 680 
 
 Carpenter t). Buller 108,113,114 
 
 Carpenter v. Providence Washington 
 Ins. Co. 952 
 
 Carpenter v. Wall 326, 1222, 1239 
 
 Carpenters' Co. v. Hayvvard 2 
 
 Carpmael v. Powis 766, 768, 774 
 
 Carry. Burdiss 1535, 1536 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 PAGE 
 
 Carr v. Jackson 964 
 
 Carr v. Loud. & If. W. Ry. Co. 715 
 
 Carr v. Montefiore 943 
 Carrv. Mostyn 522, 660, 1477 
 
 Carrier Dove, The 214 
 
 Carrigy v. Brook 927 
 
 Carrington v. Cornock 420 
 
 Carringtou v. Jones 585 
 
 Carrington v. Roots 874 
 
 Carroll v. Cowell 855 
 
 Carroll v. Ewers 343 
 
 Carruthers v. Graham 421, 454 
 
 Carskadden v. Poorman 552 
 
 Carstairs v. Stewart 205 
 Carter v. Boehm 1192, 1193 
 
 Carter v. Carter 114 
 
 Carter v. Downish 5 
 
 Carter v. Ld. Coleraine 618 
 Carter v. James 688, 690, 1435 
 
 Carter v. Jones 348 
 
 Carter v. Murcot 135 
 
 Carter «. Pryke 298 
 
 Carter v. Toussaint 877, 878 
 
 Carter & Crost's case 1455 
 Cartwright v. Green 1150, 1223 
 
 Carver, Re 887 
 
 Carver v. Jackson 107, 659 
 
 Cary v. Gen-ish 186 
 
 Casburn v. Keid 1289 
 
 Case V. Reeve 1411 
 Casement v. Fulton 428, 881, 883 
 
 Cashill V. Wright 195 
 
 Cashin v. Craddock 1499 
 
 Casmore, Re 888 
 
 Cassidy v. firman 905 
 
 Cassidy v. Steuart 4 
 
 Casson v. O'Brien 1243 
 
 Cast V. Poyser 1066 
 
 Castelli v. Groom 450 
 
 Castle V. Fox 1000 
 
 Castle V. Sworder 878 
 
 Castlebar Guard, v. Ld. Lucan 1481 
 
 Castleden v. Castleden 154 
 Castrique v. Imrie 1401, 1449 
 
 Gates V. Hardacre 1225 
 
 Gates V. Winter 397, 399 
 
 Catherwood v. Caslon 181 
 
 Catherina Maria, The 1331 
 
 Catlin V. Skoulding 909 
 
 Catling V. King 856 
 Caton V. Caton 222, 645, 859, 866, 867 
 
 Caton V. Lenox 472 
 Catt V. Howard 620, 634, 1184 
 
 Cattell V. Ireson 1141 
 
 Catton V. Simpson 1516 
 
 Cattrall, Re 171 
 
 Caunce v. Spanton 185 
 
 Gaunt V. Thompson 233 
 
 Cavan v. Stewart 1450 
 
 Caves. Mackenzie 926 
 
 Cave V. Mills 707 
 
 Cave V. Mountain 48, 1397 
 
 Cawley v. Furnell 905 
 
 Cawthoriie v. Cordrey 868 
 
 PAGE 
 
 Cazenove v. Vaughan 415 
 
 Chabbook's case 731 
 
 Chad V. Tilsed 1006 
 
 Chadwiok v. Chadwick 1224, 1234 
 
 Chadwick v. City of Dab. St. Pack. Co. 8 
 
 Chadwick v. Turner 940 
 
 Chalmers u. Shackell li'S 
 
 Chamberlain v. King 293 
 
 Chalmbera v. Bernasconi 581, 597, 598 
 
 Chambers v. Kelly 893 
 
 Chambers w. Mason 657 
 
 Chambers 1). Wood 170 
 
 Chamley v. Ld. Dunsany 1425 
 
 Chamney, Re 889 
 
 Champiani). Atkinson 300 
 
 Champion v. Plummer 856 
 
 Champion v. Terry 394 
 
 Champneys v. Peck 189, 594 
 
 Chandler v. Grieves 4, 30 
 
 Chandler v. Home 1174 
 
 Chandler v. Howell 871 
 Chandos Peer. 553, 554, 566, 558, 559 
 
 Chandos M., v. Corns, of Inl. Rev. 355 
 
 Chant V. Brown 766, 774, 780 
 
 Chanter v. Hopkins 986 
 
 Chapel V. Hicks 287 
 
 Chaplin v. Levy 407, 654 
 
 Chaplin V. Rogers 878, 879 
 
 Chapman v. Beard 674 
 
 Chapman v. Callis 832 
 
 Chapman v. Chapman 540 
 
 Chapman v. Cowlau 521 
 
 Chapman v, Davis 1036, 1067 
 
 Chapman v. Emden 353 
 
 Chapman v. Keane 43 
 Chapman v. Monmouth. Ry. & Can; Co. 
 
 1401 
 
 Chapman v. Rawson 350 
 
 Chapman v. Searle ' 710 
 
 Chapman v. Speller 984 
 
 Chapman v. Sutton 233 
 
 Chapman v. Walton 1193 
 
 ChappeU v. Davidson 265 
 
 Chappell D. Purday 1316 
 
 Chappie V. Cooper 56 
 
 Charkieh, The 30 
 
 Charles v. Blackwell 87 
 
 Charles v. Branker 695 
 
 Chariotta, The 97 
 
 Charlter v. Barret 314 
 
 Charlton v. Coombes 767, 780, 783 
 
 Charlton v. Hindmarsh 890 
 
 Charlton v. Watson 316 
 
 Chamley v. Gruriby 395 
 
 Chamock v. Devings 1173 
 
 Charter v. Charter 1007, 1014 
 Chart. Mer. Bk. of India v. Dickson 50 
 
 Chase 1). Lincoln 1190 
 
 Chasemore v. Richards 149 
 
 Chasemore v. Turner 907 
 
 Chatelain 1). Pontigny 1434 
 
 Chater v. Beckett 865 
 
 Chatfield v. Fryer 627 
 
 Chatland v. TUoruley 23 
 c % 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 PAGT! 
 Chaurand v. Angorstein 969 
 
 Cheese v. Lovejoy 1559, Errata 
 
 Cheosebrough, Re 101 
 
 Cheesman v. Exall 711 
 
 Cheltenham & Gt. West. Union Rail. Co. 
 
 V. Daniel 705 
 
 Cheney v. Courtois 157 
 
 Cherry v. Cherry 347 
 
 Cherry v. Colonial Bk. of Australasia 990 
 Cherry v. Heming 160, 837, 851, 867 
 Cheslyn v. Dalby 904 
 
 Chester v. Wortley 461, 466, 1223 
 
 Chesterton v. Farlar 160 
 
 Chetwynd v. Lindon 1223 
 
 Chichester v. M. of Donegal 410, 772 
 Chichester, Ld. Jn., v. Coventry 1024 
 Child V. Grace 682, 683 
 
 Child V. Stenning Errata 
 
 Childerston v. Barrett 1115 
 
 Chinnock v. Ly. Ely 858 
 
 Cliipp V. Han-is 933, 934 
 
 Chirac v. Eeinicker 788 
 
 Chismanv. Count 679 
 
 Chitty V. Dendy 29 
 
 Chodwick v. Palmer 883 
 
 Cholmondeley, Ld., v. Ld. Clinton 780 
 Christian, Re 890 
 
 Christian v. Coombe 719 
 
 Christie v. Richardson 1357 
 
 Christie v. Unwin 160, 1439 
 
 Christmas v. Whinyates 172 
 
 Chubb V. Solomons 17, 796 
 
 Church V. Imp. Gas Light and Coke Co. 
 819, 820, 821, 823, 825 
 Church v.. Hubbart 63 
 
 Churchward v. Palmer 8 
 
 Churton v. Freweu 774, 1041 
 
 Chute V. Busteed 837 
 
 Ciocci V. Ciocci 1422 
 
 Cist V. Zeigler 1398 
 
 City of Berne v. Bk. of England 3 
 
 City of Bristol v. Wait 389 
 
 City of Cambridge, Re 215 
 
 City of London v. Gierke 522 
 
 City of London v. Perkins 419 
 
 City of London Gas Light and Coke Co. 
 
 V. Nicholls 822 
 
 Clagett V. Phillips 778 
 
 Clanmorris, Ld., v. Mullen 1538 
 
 Clapham v. Cologan 1517 
 
 Clapham v. Langton 978 
 
 Clarges v. Sherwin 1393 
 
 Claridge v. Hoare 1223, 1224 
 
 Claridge v. Mackenzie 119, 120 
 
 Clark, Re 160, 891 
 
 Clark V. Adie Errata 
 
 Clark V. Alexander 203, 612, 910 
 
 Clark 1). Bigelow 1188 
 
 Clark V, Clark 768 
 
 Clark V. Gifford 950 
 
 Clark V. Gill 1043 
 
 Clark V. Hooper 903 
 
 Clark V. Hougham 283 
 
 Clark V. Leach ■ 203 
 
 
 PAGE 
 
 Clark V. Morrell 
 
 • 280 
 
 Clark V. MuUick 
 
 63, 64 
 
 Clark V, Vorce 
 
 1185 
 
 Clark V. Waite 
 
 665 
 
 Clark V. Wilmot 
 
 672 
 
 Clark V. "Wright 
 
 65 
 
 Clark's Ex. v. Van Eeimsdyk 635, 806 
 Clarke, Re 29, 890, 1397, 1438 
 
 Clarke, ex parte 1115, 1118, 1120 
 
 Clarke v. Callow 290 
 
 Clarke v. Clarke 706, 890 
 
 Clarke v. Courtney 662 
 
 Clarke v. Cuckfield Union 821, 822, 826 
 Clarke v. E. India Co. 443 
 
 Clarke v. Fuller 858 
 
 Clarke v. Holmes 988 
 
 Clarke v. Roystone 991 
 
 Clarke u Saffery 1177,1178 
 
 Clarke v. Scripps 897, 898 
 
 Clarkson v. Clarkson 894 
 
 Clarkson v. Woodhouse 385, 566 
 
 Clary v. Clary 1189 
 
 Clay's case 179 
 
 Clay V. Crowe 394, 895 
 
 Clay V. Stephenson 450, 451 
 
 Clay V. Thackrah 653 
 
 Clay V. Yates 876 
 
 Clayton v. Blakey 837 
 
 Clayton v. Gregson 969 
 
 Clayton v. Ld. Nugent 946, 997, 1010, 
 
 1012 
 Cleare v. Cleare 170 
 
 Cleave v. Jones 35, 36, 776, 911 
 
 CleggD. Levy 1196 
 
 Clemenshaw c. Corp. of Dublin 827 
 
 Clement's case 1078 
 
 Clement, ex parte 1176 
 
 Clementi v. Golding 24, 30 
 
 Clements ». Norris Errata 
 
 Clendon v. Dinneford 185 
 
 Clergy Society, Re 965 
 
 Clerk V. Molineux 1121 
 
 Cleve V. Powel 779, 1420 
 
 Cleveland, Duch. Dow. of, v. Meyrick 60 
 Chfford V. Burton 516, 647 
 
 Clifford V. Hunter 54, 1202 
 
 Clifford v. Parker 1.513, 1514 
 
 Cliiford V. Turrell 950 
 
 Clifton V. U. S. 132, 356, 673 
 
 Clinan v. Cooke 866, 875, 953 
 
 Cline's case 169 
 
 Clive V. Carew 635 
 
 Clogstown V. Walcott 174 
 
 Cloncurry, Ld., case of 644 
 
 Close, ex parte 1021, 1090 
 
 Closmadeuc v. Carrel 161 
 
 Clothier v. Chapman 624 
 
 Clowes V. Higginson 963 
 
 Clowes V. Hilliard 224, 237 
 
 Clunnes v. Pezzey 132 
 
 Clutterbuck v. Jones 447 
 
 Clyde Nav. Co. u. Barclay 215 
 
 Cnal Consuming Gas Co., Re 1561 
 
 Coates V. Bainbridge 514 
 
TABLE OF CASES CITED. 
 
 XXXVU 
 
 Coates V. Birch 
 
 PAOE 
 
 787 
 
 Coats 17. Chaplin 
 
 855, 880 
 
 Cobbett, ex parte 
 
 1072, 1117, 1119 
 
 Cobbett V. Grey 
 
 615 
 
 Cobbett V. Hudson 
 
 1167, 1168, 1174 
 
 Cobbett V. Eilminster 
 
 1551, 1552 
 
 Cobbold V. Caston 
 
 876 
 
 Cobden v. Kendrick 
 
 784, 788 
 
 Cochran v. Retberg 
 
 969 
 
 Cock V. Gent 
 
 294 
 
 Cockayne, Re 
 
 896, 899 
 
 Cocking V. Ward 
 
 870 
 
 Cockrill V. Sparkes 
 
 628 
 
 Cocks V. Nash 
 
 772 
 
 Cocks V. Purday 
 
 1197 
 
 Codd 1). Donnelly 
 
 449 
 
 Coe V. Clay 
 
 982 
 
 Coe V. Hutton 
 
 679 
 
 Coggs V. Bernard 
 
 194 
 
 Cohen v. Davidson 
 
 980 
 
 Cohen v. Hinkley 
 
 2U 
 
 Cohen v. Templar 
 
 773 
 
 Cohn V. Davidson 
 
 980 
 
 Coit V. Tracy 
 
 511 
 
 Colbern's case 
 
 1148 
 
 Colbourn v. Dawson 
 
 IGOO 
 
 Colclough V. Smyth 
 
 1013 
 
 Cole V. Hawkins 
 
 1124 
 
 Cole V. Headly 
 
 641 
 
 Cole V. Manning 
 
 810 
 
 Cole V. Sherard 
 
 12 
 
 Coleman's case 
 
 722 
 
 Coleman v. Gibson 
 
 880 
 
 Coleman v. Southwick 
 
 493 
 
 Coles 1). Bk. of England 
 
 707 
 
 Coles V. Bristowe 
 
 190 
 
 Coles V. Coles & Brown 
 
 1199 
 
 Coles V. Pilkington 
 
 703 
 
 Collard v. Sampson 
 
 882 
 
 CoUedge v. Horn 
 
 656, 907 
 
 CoUen V. Wright 
 
 990 
 
 CoUett V. Collett 
 
 1190, 1193 
 
 Collett V. Hubbard 
 
 709 
 
 Collett V. Ld. Keith 
 
 669, 1446 
 
 Collier, ex parte 
 
 169 
 
 Collier v. N okes 
 
 23, 1222 
 
 Collier v. Simpson 
 
 1195 
 
 Collier's case 
 
 1438 
 
 Colhng V. Treweek 384, iOi, 405, 406 
 
 Collins V. BaiTow 
 
 983 
 
 Collins V. Bayntun 
 
 1535 
 
 Collins V. Blantern 
 
 110, 948, 949 
 
 Collins V. Carnegie 
 
 183, 672 
 
 Collins V. Gashon 
 
 1512 
 
 Collins V. Godefroy 
 
 1045 
 
 Collins V. Jackson 
 
 192 
 
 Collins V. Martin 
 
 160 
 
 ColHns V. Maule 
 
 379, 1338 
 
 Collins V. Prosser 
 
 1516 
 
 Collinson v. Margesson 
 
 905 
 
 CoUis V. Emett 
 
 1527 
 
 Collis V. Stack 
 
 908 
 
 CoUyer v. Willock 
 
 911 
 
 Colman v. Anderson 
 
 146 
 
 PAGE 
 
 Colt V. Nettervill 873 
 
 Coltman v. Gregory 1016 
 
 Coltman v. Marsh 906 
 
 Columbia, Bk. of, v. Patterson 820 
 
 Colvin V. Proc. Gen. 210 
 
 Com. V. BuUard 498 
 
 Com. V. Carey 1547, 1556 
 
 Com. V. Dana 776 
 
 Com. -u. Drake 737, 772 
 
 Com. V. Eberle 505 
 
 Com. V. Feely 1123 
 
 Com. V. Green 1169 
 
 Com. V. Hill 1156 
 
 Com. V. Knapp 721, 738, 760 
 
 Com. V. Kneeland 24 
 
 Com. V. Norcross 377 
 
 Com. v. Richards 471 
 
 Com. -0. Shepherd 799 
 
 Com. V. Smith 794 
 
 Com. V. Tildeu 794 
 
 Cora. V. Vass 611 
 
 Com. V. Woelper 1484 
 Combe v. Corp. of London 778, 1494, 
 
 1504 
 
 Combe v. Pitt 717 
 Comm. of Leith Har. & D. v. Inspec. of 
 
 Poor 1441 
 Commercial Bk. of Scotl. v. Rhind 719 
 
 Commings v. Heard 1467 
 
 Commins v. Scott 856 
 
 Compton V. Chandless 1374, 1473 
 
 Concordia, The 8 
 
 Conflans Quarry Co. v. Parker 395 
 
 Connelly v. Connelly 1447 
 
 Connor v. 1066 
 
 Connor i). Cronin 161 
 
 Conradi v. Conradi 471, 1402 
 
 Gonron v. Conron 174 
 Conserv. of Riv. Thames v. Hall 214 
 
 Contant v. Chapman 715 
 
 Contract, Corp. Re 1078 
 
 Conway v. Beazley 1447 
 Conway v. Belfast & N. E. Ry. Co. 988 
 
 Conybeare v. Parries 400 
 
 Cooch V. Goodman 22, 836, 837 
 
 Coode V. Coode 1328 
 
 Cook, Re 1073 
 
 Cook V. Hearn 408 
 
 Cook V. Lambert 888 
 
 Cook V. Leonard 293 
 
 Cook V. Moylan 288 
 
 Cook V. Nethercote 11 74 
 
 Cook V. Stearns 871 
 
 Cooke V. Banks 527, 1482 
 
 Cooke V. Butler 1481 
 
 Cooke V. Green 136 
 
 Cooke V. Lamotte 164 
 
 Cooke V. Lloyd 541 
 
 Cooke V. Loxley 117 
 
 Cooke V. Maxwell 796, 798, 1310 
 
 Cooke V. ShoU 1401, I444 
 
 Cooke V. Stratford ^33 
 
 Cooke V. Tanswell 1.534 
 
 Cooke V. Tomliuson 1171 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 Cooke V. Wildps 
 Cookea v. Cookes 
 Cookes V. Mascall 
 Coole V. Braham 
 Coolidse v. Learned 
 
 PAGE 
 
 54, 133 
 
 602 
 
 703 
 
 638, 659, 663 
 
 92 
 
 Coombs V. Bristol & Exeter Ey. Co. 880 
 Coombs V. Coether 1330 
 
 Coombs, Re 888 
 
 Coope V. Cress well 587 
 
 Cooper V. Blandy 120 
 
 Cooper V. Blick 696 
 
 Cooper V. Beckett 172, 886, 899 
 
 Cooper V. Gibbons 132 
 
 Cooper V. Grant 930 
 
 Ciooper V. Harding 1090 
 
 Cooper V. Lloyd 800 
 
 Cooper V. Macdonald 1024, 1317 
 
 Cooper V. Marsdeu 596 
 
 Cooper V. Meyer 713 
 
 Cooper V. Robinson 960 
 
 Cooper V. Shepherd 1415 
 
 Cooper V. Slade 127, 129, 761 
 
 Cooper V. Smith 858 
 
 Cooper V. Taylor 689 
 
 Cooper V. Wands. Board of Works 1451 
 Cooper V. Woolfitt 175 
 
 Coorg, Rajah of, v. East India Co. 797 
 Coote V. Boyd 1026, 1027 
 
 Coote V. Leighworth 707, 708 
 
 Cope, Re 891 
 
 Cope V. Cope 173, 799, 800, 1479 
 
 Cope V. Mooney 1471 
 
 Cope V. Rowlands 182 
 
 Cope V. Thames Haven Dock & Rail. Co. 
 824, 1222, 1223 
 Copeland'i). Watts 773 
 
 Copen V. Adamson 1451 
 
 Cnpland V. Toulmin 624 
 
 Copley V. Burton 339 
 
 Copp V. Upham 1232 
 
 Copper Miners' Co. v. Fox 687, 823 
 
 Corbettu Corbett 424 
 
 Corder, Re 887 
 
 Cordery v. Colville 233, 675 
 
 Cordery v. Colvin 233, 675 
 
 Cordwent v. Hunt 953 
 
 Cork, Bp. of, V. Porter Errata 
 
 Cork & Bandon Ry. Co. u. Cazenove 122 
 Cork & Bandon Ry. Co. v. Goode 92 
 Corking v. Jarrard 414 
 
 Cornell v. Green 472 
 
 Cornelius Ryan, Re 885 
 
 Cornfoot v. Fowke 248 
 
 Cornforth v. Smithard 907 
 
 Comill V. Hudson 629 
 
 Coitiish V. Abington 701 
 
 < Ornish v. Clark 163 
 
 Cornish v. Hockin 225 
 
 Cornwall v. Ricliardsnn 283, 324, 329 
 Corps 1). Robinson 679 
 
 Corsen v. Dubois 773 
 
 Cort». Amhergate, &c., Ry. Co. 954 
 Cortis ii. Kent Waterworks Co. 183 
 
 Cory V. Bretton 665 
 
 PAGE 
 
 Cory V. Davis 362 
 
 Cosmopolitan, Re 213, 214 
 
 Cosnahan v. Grice 819 
 
 Cossens, ex parte 1234 
 
 Cossens v. Cossens 112 
 Cossey v. Lond. & Bright. Ry. Co. 775, 
 
 1496 
 Costa Rica, Rep. of, v. Erlanger 410, 
 458, 1503 
 
 Coster V. Hetherington 1357 
 
 Coster V. Innes 211 
 
 Cotching V. Basset 677 
 
 Cotes V. Davis 647 
 
 Cotesworth v. Spokes 675 
 
 Cottam V. Partridge 909 
 
 Cotterill v. Hobby ' 367 
 
 Cottington, ex parte 1454 
 
 Cottle, ex parte 705 
 
 Cotton, Re 887 
 
 Cottrell V. Hughes 151 
 
 Cottrill V. Myrick 1191 
 
 Couch V. Meeker 958 
 
 Couch V. Steel 988 
 
 Couling V. Coxe 1070 
 
 Coulon V. Moore 1413 
 
 Counhaye, Re 1305 
 
 Courteeni!. Toiise 1178 
 
 Cousins V. Paddon 262, 287 
 
 Coutts V. Acworth 164 
 
 Couturier v. Hastie 863 
 
 Cow V. Kinnersley 448 
 
 Cowan V. Abrahams 370, 406 
 Cowan !!. Braidwood 1445, 1446, 1448, 
 1449, 1458 
 
 Cowell V. Chambers ] 387 
 
 Cowie u Halsall 1516 
 
 Cowie V. Remfry 380, 381 
 
 Cowling v. Ely 626 
 
 Cowper v. Ld. Cowper 131 
 
 Cox V. Allingliam 383, 1324 
 
 Cox V. Brain 699 
 
 Cox V. Cannon 930 
 
 Cox V. Hickman 192 
 
 Cox V. Knight 120 
 
 Cox V. Middleton 858 
 
 Cox V. Midi. Ry. Co. 822 
 
 Cox V. Newman 1318 
 
 Cox V. Parry 698 
 
 Cox V. Reid 62, 293 
 
 Cox V. Thomason 263 
 
 Cox v. Walker 333 
 Coxhead v. Richards 52, 63, 133 
 
 Craig V. Fenn 333 
 
 Crane v. London Dock Co. 8 
 
 Crane v. Marshall 580 
 
 Crane v. Powell 857 
 
 Crank v. Frith 1533 
 
 Craven, ex parte 101 
 
 Craven, Re 101 
 
 Craven v. Halhley 501 
 
 Crawford v. Crawford 902, 906 
 
 Crawford & Lindsay Peer. 162, 552, 
 587, 1294, 1554 
 
 Cray v. Halls 615 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 PAQ15 
 
 Creagh v. Blood 844 
 Crease v. Barrett 51R, 520, 522, 527, 
 528, 531, 540, 569, 581, 582, 660 
 
 Credland v. Potter 939 
 
 Creen v. Wriglit Errata 
 
 Creevy v. Carr 316, 1203 
 
 Crepps V. Durden 1438 
 
 Crerar v. Sodo 354 
 
 Cresswell v. Jackson 1551 
 
 Crew V. Saunders 1258, 1263 
 
 Cripps V. Davis 903, 904 
 
 Cripps V. HartnoU 965 
 
 Cripps V. Hills 66 
 
 Cripps V. "Wells 350 
 
 Crisdee v. Bolton 58 
 
 Crisp V. Anderson 132, 161 
 
 Crispin v. Doglioni 396, 541 
 
 Croft V. Croft 886 
 
 Croft D. Graham 166 
 
 Croft V. Lumley 675 
 
 Crofton V. Poole 672 
 
 Crofts ». Marshall 971 
 
 Croke v. Dowling 1289 
 
 Croker v. M. of Hertford 881, 899 
 
 Croker v. Walsh 143 
 
 Comack v. Heathcote 766 
 
 Crompton v. Butler 810 
 
 Cronk v. Frith 1533 
 
 Crook V. Cowling 1287, 1289 
 
 Crook 1). Hill 176 
 
 Crookenden v. Fuller 215, 217 
 
 Crookewit v. Fletcher 1520 
 
 Croomes v. Morrison 458 
 
 Croshie v. Thompson 624 
 
 Crosby ■!). Hetherington 7,8,1416 
 Crosby v. Percy 421, 494, 1538 
 
 Crosby v. Wadsworth 874 
 
 Cross V. Kaye 671 
 
 Crosse v. Bedingfield 627 
 
 Crossley, ex parte 1091 
 
 Crossley v. Dixon 710 
 
 Crossley v. El worthy 163 
 
 Crossley v. Lightowler 135 
 
 Crotty V. Hodges 1516 
 Crouch V. Cred. Fon. of England 831 
 
 Crouch V. Hooper 550, 551 
 
 Croudson v. Leonard 1453 
 Croughton v. Blake 1332, 1408, 1477 
 
 Crowder v. Hopkins 666, 665 
 
 Crowe w. Clay 394 
 
 Crowley D. Page 1216 
 
 Crowley v. Vitty 841 
 
 Crowninshield's case 605 
 Crowninshield v. Crowninshield 204, 338 
 
 Crowther v. Appleby 1033 
 
 Crowther v. Solomons 161 
 
 Cruise v. Clancy 391, 1549 
 
 Cubitt V. Porter 137 
 
 GuSv. Penn 956 
 
 Cumberland v. Copeland 928 
 
 Cuming v. French 667 
 
 Cummin v. Smith 672 
 
 Gumming v. Roebuck 380 
 
 Cummings v. Heard 1467 
 
 PAGE 
 
 Cundell v. Pratt 1230, 1231 
 Cunliffeti. Sefton 421, 1588, 1540, 1541 
 
 Cunningham, Ee 894 
 
 Cunningham v. Cunningham 180 
 
 Curlewis v. Corfield 673, 675 
 
 Curling v. Perring 778 
 
 Curren v. Crawford 697 
 
 Currie v. Anderson 877, 880 
 
 Currie v. Brown 1630 
 
 Currie v. Child 1537 
 
 Curry v. Walter 792 
 
 Curtin v. Evans 1024 
 
 Curtis V. Hunt 720 
 
 Curtis V. Mackenzie Errata 
 
 Curtis r. M 'Sweeney 1535 
 
 Curtis V. Pugh 877 
 
 Curtis V. Kickards 143 
 Curzon v. Lomax 522, 528, 529 
 
 Cusack V. Robinson 876, 877 
 
 Cutbush V. Gilbert 359 
 
 Cuthbert v. Gumming 976 
 
 Cutler V. Newlin 658 
 
 Cutler V. Pope 874 
 
 Cutto V. Gilbert 173, 895 
 
 Cutts V. Pickering 784 
 
 Cuttsv. U. S. 1522 
 
 Cutts D. Ward 919 
 
 D. falsely called F. v. F. 201 
 
 Dabbs V. Humphries 908 
 
 Da Costa v. Edmunds 971 
 
 Da Costa v. Jones 799 
 
 Da Costa I). Pym 1546 
 
 Da Costa v. Villa Real 1402 
 
 Dagleish v. Dodd 621 
 
 Daines v. Hartley 1188 
 
 Daines v. Heath 1528 
 
 Daintry v. Brocklehurst 142 
 
 Dalby v. Hirst 992 
 
 Dale V. Hamilton 875 
 
 Dale V. Humfrey ■ 976 
 Dalgleish v. Hodgson 1452, 1453 
 
 Dalison v. Stark 370 
 
 Dallow, Ee 891 
 Dalrymple v. Dalrymple 9, 1195, 1196 
 
 Dalston p. Coatsworth 131 
 
 Daly V. Att.-Gen. 169 
 
 Daly V. Wilson 569, 583 
 
 Dalzell V. Mair 707 
 
 Damerell v. Protheroe 523, 530 
 
 Dan V. Brown 632, 897 
 
 Dance v. Robson 29, 1323 
 
 Dancer v. Crabb 894 
 
 Dandridge v. Corden 1223 
 
 Dane v. Kirkwall 1400 
 
 Daniel v. Barry 265 
 
 Daniel i). Bond ] 497 
 
 Daniel v. Luker 1455 
 
 Daniel v. North 583 
 
 Daniel v. Pitt 639 
 
 Daniel v. Thompson 1073 
 
 Daniel v. AVilkin 621, 531 
 
 Daniell v. Daniell ] 020 
 
 Daniels «. Conrad 1216 
 
 Daniels v. Harris 973 
 
xl 
 
 TABLE OF CASES CITED. 
 
 PACE 
 
 Daniels v. Potter 510, 632 
 
 Dansey v. Kicliardson 195 
 
 Danyelu 1455 
 
 Darby v. Ouseley 313, 372, 620 
 
 Darcys, Re 800 
 
 Darley v. Martin 942 
 Darlington & Bank Co., ex parte 192 
 
 Darrell v. Evans 380, 927 
 Dartmouth, Ly., v. Roberts 660, 1287 
 
 Darvill v. Roper 60 
 
 Davey v. Durrant 1043 
 
 David V. Preece 237 
 
 Davidson v. Cooper 162, 1514, 1515, 
 
 1516, 1520, 1521, 1524 
 
 Davidson v. Wood 201 
 
 Davies, Re 885 
 
 Davies v. Brown 1264 
 
 Davies v. Campbell 580 
 
 Davies v. Davies 165, 1218, 1219, 1286, 
 
 1289 
 
 Davies v. Dodd 395 
 
 Davies v. Edwards 908 
 
 Davies v. Fitton 952, 953 
 
 Davies v. Humphreys 575 
 Davies v. Lowndes 176, 535, 536, 540, 
 541, 543, 554, 556, 557, 1394, 1554 
 
 Davies v. D. of Marlborough 166 
 
 Davies v. Marshall 677 
 Davies v. Morgan 522, 537, 544, 579 
 
 Davies v. Nicholas 185 
 
 Davies v. Otty 1237 
 
 Davies v. Pierce 580, 582, 660 
 
 Davies v. Eidge 632 
 
 Davies v. Stainbank 962 
 
 Davies v. Waters 772, 784, 785 
 
 Davis V. Black 103 
 
 Davis V. Capper 48, 49 
 
 Davis V. Chapman 251 
 
 Davis V. Curling 293 
 
 Davis V. Dale 1202 
 
 Davis V. D(;dd 394 
 
 Davis V. Hedges 1 423 
 
 Davis V. Jones 948 
 
 Davis V. Lloyd 570, 595, 1327 
 
 Davis V. Lovell 1035, 1070 
 
 Davis V. Lowndes 449 
 
 Davis V. Mason 1190 
 
 Davis V. Raiusford 1019 
 
 Davis V. Reid 1228 
 
 Davis V. Scrace 339 
 
 Davis v. Scrase 339 
 
 1 'avis t). Spurling 619 
 
 Davis V. Trevanion 933 
 
 Davis D. Vass 1320 
 
 Davis V. Waddington 1006 
 
 Davis V. Williams 383, 1324, 1^25, 1338 
 
 Davis V. Wood 489 
 
 Davis's Trusts, Ee 12 
 
 Davison v. Gent 844, 845 
 
 Davison v. Stanley 842 
 
 Davlia v. Hill 968 
 
 Dawes v. Peck 879 
 
 Daws V. Shed 668 
 
 Dawkins !i. Paulet S3 
 
 PAGE 
 
 Dawkins v. Ld. Penrhyn Krrata 
 Dawkins s). Rokeby Ld. 53, 797, 1114 
 
 Dawson v. Chamney 195 
 
 Dawson v. Dawson 1024 
 
 Dawson v. Gregory . 1312 
 
 Dawson v. Jay 1454 
 
 Dawson v. Macdonald 291 
 
 Dawson v. Remnant 719 
 
 Day ». Bather 195 
 
 Day v. King 160, 1439 
 Day V. Spread 1402, 1444 
 
 Day V. Trig 1018 
 
 Day V. Williams 149 
 
 Deacle v. Hancock 627, 537 
 
 Deacon's case 305 
 
 Deady v. Harrison 665 
 
 Deane v. Packwood 1167 
 
 Dear v. Knight 1199 
 
 DeBode, Baron, case of 581, 1196 
 
 De Caen, The General 215 
 
 De Cosse Brissac v. Rathbone 1460 
 
 Deeble v. Liueham 149 
 
 Defreeze v. Trumper 984 
 
 Defries v. Davis 315 
 
 De Gaminde v. Pigou 707 
 De Grave v. May. of Monmouth 820, 826 
 
 Delamere, Ld., v. The Queen 103 
 
 Delamotte v. Lane 298 
 
 Delaney v. Fox 117 
 
 Delarue v. Church 147 
 
 De la Rue v. Diikenson 54 
 
 De la Saussaye, Ee 896 
 
 Delegal v. Highley 314 
 
 Delesline v. Greenland 642 
 
 De Lisle Peer. 1475 
 
 Delisser v. Towne 264, 265 
 
 Delmege u. MuUins 119 
 
 Delogny v. Rentoul 666 
 
 De Medina v. Norman 982 
 
 De Medina v. Owen 621 
 
 Dempsey v. Lawson 895 
 
 Den V. Clark 1400 
 
 Den V. Fulford 1288 
 
 Dench v. Dench 172, 949 
 
 Dendy v. Nicholl 675 
 
 Dendy v. Simpson 301 
 
 Denison v. Ditcher 94 
 
 Denn v. Spray 521 
 
 Denn v. White 646 
 
 Denno). Wilford 1001 
 
 Dennett v. Crocker 368 
 
 De Pontes v. Kendal 893 
 
 De Praslin, Due, case of 745 
 
 Derby, case of Ld. 205 
 
 Derby Bk. v. Lumsden 464 
 
 Derifley v. Custance 847 
 
 Derinzy v. Turner 887 
 
 De Roo V. Foster 706 
 De Roos Peer. 383, 552, 553, 564, .559, 
 
 1474 
 De Rosaz Frangois, In re goods of 1010 
 
 De Rutzen, Baron, v. Farr 578 
 Desboroughi). Rawlins 767, 783, 785, 786 
 
 Desbrow v. Wetherley 1516 
 
TiBLE OP CASES CITED. 
 
 Xli 
 
 PAGE 
 
 Desbrowo v. Wetherby 1516 
 
 Despau v. Swindle i' 29 
 
 De Thoren t). Att. -Gen. 180 
 
 De Vaux v. Steinkeller 914 
 
 Devereux v. Much Dew Church 377 
 
 De Visme, In re 850 
 
 Devon Peer. 553 
 
 Devon Witches 724 
 
 Devoy v. Devoy 850 
 
 Dewdney v. Palmer 1168 
 
 De Whelpdale v. Milburn 660, 718 
 
 Dews V. Eyle 1299 
 
 Dexter v. Haye.s 179 
 
 Deybel's case 26 
 
 Diana, The 215, 216 
 
 Dicas V. Lawsou 1067 
 
 Dickenson v. Teasdale 587 
 
 Dickins, Ee 891 
 
 Dickinson v. Coward 670, 672 
 
 Dickinson v. Fletcher 130 
 
 Dickinson v. Hatfield 904 
 
 Dickinson v. Shee 1 207 
 Dickinson v. Stidolph 173, 891, 895 
 
 Dickinson v. Swatman 894 
 
 Dickinson v. Valpy 193, 704 
 
 Dickson v. Evans 344 
 
 Dickson v. E. of Wilton 797 
 Dickson V. Neath & Brecon Ey. Co. 1113 
 
 Digby V. Atkinson 204 
 Diggle V. Lond. & Bla<:kwall Ey. Co., 
 
 823, 826 
 
 Dilkes, Ee 889 
 
 Dilley v. Matthews 1015 
 
 Dimond v. Vallance 448 
 
 Dimsdale v. Dimsdale 165 
 
 Dinmore, Ee 885 
 
 Dinni;. Blake 1467 
 
 Disney v. Longbourne 458 
 
 Di Sora, Duch., v. Phillipps 1197 
 D'lsraeli v. Jowett 1331, 1480 
 
 Ditchburn v. Goldsmith 799 
 
 Ditcher v. Denison 94 
 
 Ditcher 1). Kenrick 411, 773 
 
 Divoll V. Leadbetter 672, 703 
 
 Dix V. Otis 961 
 
 Dix V. Eeed 175 
 
 Dixon V. Birch 195 
 
 Dixon V. Cook 1401 
 
 Dixon V. Hamond 709, 710 
 
 Dixon V. Lee 1066 
 
 Dixon V. Sinclear 1442 
 
 Dixon V. Vale 1234 
 
 Dobell V. Hutchinson 855, 857 
 
 Dobell V. Stephens 949 
 
 Dobree v. Eastwood 43, 187 
 
 Dobson V. Bell 28 
 
 Dobson V. Collis 868 
 
 Dobson V. Eichardson 465 
 Dodd V. Ackloin 287, 844, 845, 846 
 Dodd V. Norris 325, 330, 1213, 1230 
 
 Doddington's case 112 
 
 Dodge 11. Meech 170 
 
 Dodsley v. Varley 878 
 
 Dodson V. Mackey 906 
 
 PAGE 
 
 Doe V. Allen 676, 677, 678, 949, 1008, 
 
 1009 
 Doe V. Andrews 205, 206, 788, 789, 1034, 
 1035, 1329 
 Doe V. Arkwright SOO, 583, 1330, 1481 
 Doe V. Ashley 1021 
 
 Doe V. Askew 1330 
 
 Doe V. Austin 680, 660 
 
 Doe V. Barnard 143 
 
 Doe V. Barnes 179, 347, 348, 1329, 
 
 1337, 1478 
 Doe V. Barton 116, 119, 120, 641 
 
 Doe V. Batten 52, 676 
 
 Doe V. Baytnp 118 
 
 Doe V. Beckett 916 
 
 Doe V. Bell 837 
 
 Doe V. Benjamin 1558 
 
 Doe V. Benson 972 
 
 Doe V. Beviss 677, 596, 1006, 1559 
 
 Doe V. Beynon 106, 1002 
 
 Doe V. Bingham 161, 162, 1524 
 
 Doe V. Birch 675 
 
 Doe V. Birchmore 118 
 
 Doe V. Bird 648 
 
 Doe V. Bold 824 
 
 Doe V. Bower 353, 1021, 1022 
 
 Doe V. Brawn 178 
 
 Doe V. Bray 348, 1329 
 
 Doe V. Brayne 347, 348, 353 
 
 Doe V. Bridges 841 
 
 Doe V. Brown 120 
 
 Doe V. Burdett 105, 162 
 
 Doe V. Burt 1000, 1001 
 
 Doe 0. Burton 573 
 
 Doe V. Calvert 676, 678, 1468 
 
 Doe V. Caperton 28, 1537 
 
 Doe v. Cai-penter 1017 
 
 Doe V. Cartwright 369, 1330, 1481 
 
 Doe V. Catomore 172, 1513 
 
 Doe V. ChaUis 1412 
 
 Doe V. Chambers 1538 
 
 Doe d. Child v. Eoe 656 
 
 Doe V. M. of Cleveland 145, 1535 
 
 Doe V. Clifford 379, 409, 410 
 
 Doe V. Cockell 1512 
 
 Doe V. Colcombe 678 
 
 Doe V. Cole 396, 660 
 
 Doe V. Cooke 143, 149 
 
 Doe V. Corbett 348 
 
 Doe V. Coulthred 141, 580, 581 
 
 Doe V. Courtenay 842 
 
 Doe V. Cox 1174 
 
 Doe V. Crago 184 
 
 Doe -!!. Cranstoun 1018 
 
 Doe V. Date 412, 776, 1233, 1245, 1255 
 Doe V. Davies 35, 36, 140, 145, 205, 
 536, 541, 886, 1555 
 Doe V. Deakin 206, 207 
 
 Doe V. Derby 416, 418 
 
 Doe V. Derby, E. of 1411, 1413 
 
 Doe d. Devine v. Wilson 147, 1552 
 
 Doe V. Durnford 1530 
 
 Doe V. Dyeball 1 43 
 
 Doe r. Edmonds 58, 916 
 
xlii 
 
 TABLE OF OASES CITED. 
 
 PAGE 
 
 Doe V, Edwards 10, 11 
 
 Doe ». Ld. Egremont 1233 
 
 Doe V. Errington 115, 239, 264, 1408 
 Doe V. Evans 424, 892 
 
 Doe V. Eyre 90 
 
 Doeu. Fleming 180, 495 
 
 Doer. Ford 109,110,949 
 
 Doe V. Forster 678 
 
 Doe V. Forwood 842 
 
 Doe V. Foster 416 
 
 Doe V. Fowler 662 
 
 Doe V. Francis 120 
 
 Doe V. Frankis 680, 684 
 
 Doe V. Galloway 1017, 1018 
 
 Doe V. Gardiner 145 
 
 Doe v. Gatacre 1327 
 
 Doe V. Gladwin 676, 709, 953 
 
 Doe V. Glenn 111 
 
 Doe V. Gore 1320 
 
 Doe V. Gosley 352 
 
 Doe V. Green 682 
 
 Doe V. Grey 408 
 
 Doe V. Griffin 206, 543 
 
 Doe V. Groves 707 
 
 Doe V. Gunning 383, 384, 
 
 Doe V. Gwillim 
 Doe V. Hall 
 Doe 1). Hampson 
 Doe V. Hardy 
 Doe V. Hares 
 Doe V. Harris 
 Doe V. Harvey 
 Doe V. Hawkins 
 Doe d. Hearle v Hicks 
 Doe V. Hemming 
 Doe V. M. of. Hertford 
 Doe V. Hicks 
 Doe V. Hilder 
 Doe V. Hirst 
 Doe V. Hiscocks 946, 
 1009, 1010, 1013 
 
 1014 
 
 1325 
 
 ' 1003 
 
 1478 
 
 136 
 
 949 
 
 111 
 
 767, 835, 897 
 
 365, 368, 543 
 
 613, 578 
 
 895 
 
 1535 
 
 780, 783 
 
 324 
 
 6, 151 
 
 1520 
 
 , 1007. 
 
 1015 
 
 1022, 
 
 Doe V. 
 
 Doe V. Holtom 
 Doe V. Home 
 Doe V. Howell 
 Doe V. Howells 
 Doe V. Hubbard 
 Doe V. Huddart 
 Doe V. Huthwaite 
 Doe V. James 
 Doe V. Jauncey 
 Doe V. Ld. Jersey 
 Doe V. Jesson 
 Doe V. Johnson 
 Doe V. Johnston 
 Doe V. Jones 140, 
 
 Doe V. Keeling 
 Doe V. Kemp 
 Doe V. Kilner 
 Doe V. Kingston 
 Doe V. Knight 
 Doe V. Lakin 
 
 1008, 
 
 1020, 
 
 1023 
 
 1512 
 
 965 
 
 111 
 
 934 
 
 110 
 
 1004, 1010, 1017 
 
 108, 1412 
 
 1014 
 
 411, 766 
 
 774 
 
 1000 
 
 207 
 
 141, 334 
 
 846 
 
 151, 580, 681, 582, 
 
 660, 676, 848 
 
 35, 392, 565 
 
 136, 301, 303 
 
 379, 1338 
 
 933 
 
 1526 
 
 1476 
 
 36, 
 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doed. 
 Doe V. 
 Doe V. 
 Doe V. 
 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe' V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe «. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V, 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe V. 
 Doe r. 
 Doe V. 
 
 Laming 195 
 
 Langdon 118, 151, 411, 773 
 
 Langiield 376, 580, 581, 694 
 
 Langford 1497 
 
 Lea 972 
 
 Leach 236 
 
 Leicester 678 
 
 Lewis 162, 264, 348 
 
 Litherland 661 
 
 Lloyd 30, 107, 150, 1373, 1374, 
 1638 
 818 
 239 
 1555 
 171 
 399, 996, 1000, 1003 
 12, 161 
 90, 140 
 1478 
 384, 1325 
 205, 568, 579, 580 
 149 
 
 Lock 
 
 Long 
 
 Lyne 
 
 Manifold 
 
 Mai-tin 
 
 Mason 
 
 Massey 
 
 Mee 
 
 Mew 
 
 Michael 
 
 Millett 
 
 Mills 
 
 Mil ward 
 
 Mobhs 
 
 Moffatt 
 
 Morgan 
 
 Morris 
 
 Mostyn 
 
 Moulsdale 
 
 Mulliner 
 
 Murless 
 
 Murrell 
 
 Needs 
 
 Nepean 
 
 OUey 
 
 Owen 
 
 Palmer 
 
 Passingham 
 
 Paul 
 
 Pearce 
 
 Pearsey 
 
 Peck 
 
 Pembroke 
 
 Penfold 
 
 Perkes 
 
 Perkins 
 
 Perratt 
 
 Pettett 
 
 Phillips 
 
 Plowman 
 
 Poole 
 
 Pontifex 
 
 Powell 
 
 Price 
 
 Pulman 
 
 Pye 
 
 Randall 
 
 Rees 
 
 Rhodes 
 
 Richards 
 
 Eickarby 
 
 Kidgway 
 
 118, 120 
 
 844 
 
 578 
 
 833, 838 
 
 1008 
 
 368, 408 
 
 1320 
 
 151 
 
 140 
 
 1474 
 
 140 
 
 1008 
 
 208, 210 
 
 1478 
 
 409 
 
 172, 949 
 
 566 
 
 1541 
 
 563 
 
 136 
 
 675, 676 
 
 116, 117 
 
 553 
 
 141, 1532 
 
 897 
 
 1181, 1182 
 
 943 
 
 580, 659 
 
 561 
 
 5 
 
 842 
 
 938 
 
 118, 416, 422, 423, 1540 
 
 161 
 
 385, 566 
 
 677 
 
 643, 544 
 
 140, 676 
 
 46 
 
 649 
 
 580 
 
 606 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 
 PAGE 
 
 
 PAGE 
 
 Doe V. Eies 
 
 407 
 
 Doe V. Whitroe 
 
 118 
 
 Doe V. Roberts 109, 515, 626, 1321, 
 
 Doe v. Wiggins 
 
 116, 117 
 
 
 1337, 1436 
 
 Doe V. Wilford 
 
 1001 
 
 Doe V. Robson 
 
 574 
 
 Doe V. Williams 
 
 140 
 
 Doe V. Roe 
 
 658 
 
 Doe V. Wilson 
 
 52 
 
 Doe V. Rollings 
 
 648 
 
 Doe V. Wittcomb 387, 529, 696, 600 
 
 Doe V. Ross 385 
 
 409, 410, 474, 475 
 
 Doe V. Wolley 
 
 105 
 
 Doe V. Rosser 
 
 1467 
 
 Doe V. Wombwell 
 
 678 
 
 Doe V. Rouse 
 
 1015 
 
 Doe V. Wood 
 
 844, 1243 
 
 Doe V. Rowe 
 
 709 
 
 Doe V. Woodbridge 
 
 676 
 
 Doe V. Rowlands 
 
 332, 333, 353 
 
 Doe V. Wright 108, 491 
 
 , 492, 1443 
 
 Doe V. Samples 
 
 105, 561, 564 
 
 Doglioni v. Crispin 
 
 1405, 1447 
 
 Doe V. Scudamore 
 
 7 
 
 Doker v. Hasler 
 
 765 
 
 Doe V. Seaton 108, 
 
 116, 119, 660, 779, 
 
 Dolby V. lies 
 
 117, 120 
 
 
 1330, 1412, 14S1 
 
 Dolder v. Bk. of England 
 
 3 
 
 Doe V. Sissou 
 
 299, 521 
 
 Dolder v. Ld. Huntiugfield 
 
 27 
 
 Doe V. Skinner 
 
 529, 594, 596 
 
 Dolling V. Evans 
 
 868 
 
 Doe V. Sleeman 
 
 522 
 
 Dolphin V. Aylward 
 
 1418, 1424 
 
 Doe V. Smaridge 
 
 184 
 
 Dolphin V. Robins 
 
 217, 1447 
 
 Doe V. Smart 
 
 347 
 
 Don t). Lippmann 65, 1445, 
 
 1448, 1461 
 
 Doe V. Smith 
 
 652, 653, 1474 
 
 Donagh v. Bergin 
 
 1299 
 
 Doe V. Lady Smythe 
 
 117, 118 
 
 Donald v. Suckling 
 
 991 
 
 Doe V. Snowdon 
 
 46 
 
 Donaldson v. Thompson 
 
 1446, 1452 
 
 Doe V. Somerton 
 
 405 
 
 Doncaster, May. of, v. Day 
 
 414, 471 
 
 Doe V. Spenoe 
 
 46 
 
 Donegall v. Templemore 
 
 303, 1005 
 
 Doe V. Spitty 
 
 403, 408 
 
 Donellan v. Donellan 
 
 810 
 
 Doe r. Stacey 
 
 578 
 
 Donellan i>. Read 
 
 843, 867 
 
 Doe 0. Staniou 
 
 842, 981 
 
 Donelson v. Taylor 
 
 1168 
 
 Doe V. Staple 
 
 152 
 
 Don Francisco, The 
 
 1494, 1606 
 
 Doe V. Steel 
 
 718 
 
 Donnison v. Elsley 
 
 624 
 
 Doe V. Stephenson 
 
 1243 
 
 Dooley v. Mahon 
 
 Errata 
 
 Doeu Stillwell 
 
 176 
 
 Doorman v. Jenkins 
 
 50, 51 
 
 Doe V. Stone 
 
 718 
 
 Doran's case 
 
 1166 
 
 Doe V. Stratton 
 
 838 
 
 Dorin v. Dorin 
 
 176 
 
 Doe V. Suckermore 
 
 1546, 1647, 1549, 
 
 Dorr V. Munsell 
 
 948 
 
 1550, 1553, 1565, 1556 
 
 Dorrett v. Meux 883, 
 
 1324, 1338 
 
 Doe V. Sutton 
 
 709 
 
 Dorsey v. Dorsey 
 
 1447 
 
 Doe V. Sybourn 
 
 149, 150, 719, 1465 
 
 Douce, Re 
 
 890 
 
 Doe V. Taniere 
 
 184, 826 
 
 Douglas, Re 
 
 1117,1119 
 
 Doe V. Tarver 
 
 537, 1554 
 
 Douglas V. Corbett 
 
 40 
 
 Doe d. Tatham v. Wright 491, 492 
 
 Douglas V. Douglas 
 
 216 
 
 Doe V. Thomas 
 
 162, 623, 773, 843 
 
 Douglas V. Ewing 
 
 52 
 
 Doe V. Thomson 
 
 1036 
 
 Douglas V. Fellows 1007, 
 
 1014, 1015 
 
 Doe V. Thynne 
 
 580 
 
 Douglas V. Forrest 
 
 1449 
 
 Doe V. Tidbury 
 
 140 
 
 Douglas,?). Holme 
 
 143 
 
 Doe d. Tindal v. Ro€ 
 
 653 
 
 Douglas V. Saunderson 
 
 552 
 
 Doe V. Tucker 
 
 348 
 
 Douglas V. Tousey 321, 829, 1240 
 
 Doe V. Turford 189, 
 
 571, 593, 595, 596, 
 
 Dover v. Child 
 
 1467 
 
 
 598, 599 
 
 Dover v. Maestaer 
 
 354 
 
 Doe V. Tyler 
 
 1413 
 
 Dowdell V. Australian Roy. Mail Co. 1 043 
 
 Doe V. Vowles 
 
 573 
 
 Dowden v. Fowie 
 
 636 
 
 Doe V. Wainwright 
 
 581, 638, 1535 
 
 Dowling V. Dowling 
 
 296, 297 
 
 Doe V. Walker 
 
 324 
 
 Dowling V. Finigan 
 
 353 
 
 Doe V. Walley 
 
 206 
 
 Down V. Ellis 
 
 810 
 
 Doe V. Ward 
 
 895 
 
 Downes v. Garbutt 
 
 933 
 
 Doe V. Waterton 
 
 162 
 
 Downes v. Richardson 
 
 1524 
 
 Doe V. Watkins 
 
 46, 779 
 
 Downing v. Butcher 
 
 324 
 
 Doe V. Watson 
 
 119 
 
 Downing v. Capel 
 
 293 
 
 Doe V. Webber 
 
 664, 665, 1413 
 
 Downs 11. Cooper 
 
 119, 640 
 
 Doe V. Webster 
 
 964 
 
 Dowton V. Cross 
 
 639 
 
 Doe V. Wells 
 
 840 
 
 Doyly's case 
 
 644 
 
 Doe V. Wellsman 
 
 1412 
 
 Drabble v. Donner 
 
 403 
 
 Doe V. Whitefoot 
 
 393 
 
 Drake v. Drake 
 
 1018, 1015 
 
 Doe V. Whitehead 
 
 335, 345 
 
 Drake v. Marryat 
 
 1487 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Drake v. Sykes 636 
 
 Dranquet v. Prudbomme 332 
 
 Drant v. Brown 369 
 
 Drayton v. Dale 142, 712 
 
 Dresser v. Stansfield 1319 
 
 Drew V. Prior 1548 
 Drinkwater v. Porter 622, 525, 528 
 
 Droitwich case 637 
 
 Drown v. Smith 710 
 
 Druitt's case 1078 
 
 Drummond, Re 892 
 Drummond v. Att. -Gen. 968, 997, 1005 
 
 Drummond v. Parish 892, 893 
 
 Drury's case 96 
 
 Drury v. Macnamara 982 
 
 Drydeu v. Allix 8 
 
 Diiane, Ee 170 
 
 Du Barr^ v. Livette 772, 774 
 Dublin, Abp. of, u. Ld. Trimleston 
 
 1436, 1476 
 
 Dublin, Corp. of, v. Jndge 925 
 
 Da Bost V. Beresford 493, 496 
 
 Duckett «. Gover Errata 
 
 Duckett V. "WiUiams 450 
 
 Dudgeon v. Pembroke 979 
 
 Dufaur v. Croft 170 
 
 Dnfferin Peer. 1328 
 
 Dufferin's, Ld., case 1388 
 
 Duffin V. Smith 784 
 
 Dnffy, Ee 172, 949 
 
 Dagdale v. Eobertson 138 
 
 Duggins, Ee 891 
 
 Duke V. Ashby 117 
 
 Dnkes ■». Gostling 250 
 
 Damper v. Dumper 850 
 
 Duncan v. Beard 562 
 
 Duncan v. Brady 1379 
 
 Duncan v. Hodges 1529 
 
 Duncan v. Hill 190 
 
 Duncan v. Louch 261 
 
 Duncan v. Lowndes 193 
 Duncan v. Scott 1286, 1290 
 
 Duncan v. Tindal 832 
 
 DuBCombe v. Dauiell 656 
 
 Dnncuft v. Albrecht 872 
 
 Dundas v. Dutens 866 
 
 Dundas's case 644 
 
 Dunboyne, Ld., v. Brander 174 
 
 Dunford v. Trattles 689, 690 
 
 Dunlop V. Higgins 187 
 
 Dunn V. Murray 1426 
 
 Dunn V. Slee 658 
 
 Dunn V. Snowden 207 
 
 Dunne D. English 414,1237 
 
 Dunne v. Ferguson 873, 874 
 Dunraven, Ld., v. Llewellyn 519, 521, 
 
 523, 628 
 
 Dunsford v. Curlewis 35 
 
 Dunston v. Paterson 708 
 
 Dupays v. Shepherd 5 
 
 Dupuy V. Truman 1185 
 
 Durance, Ee 893 
 
 Durham, Lady, Ee 891 
 Durham, Bp. of, v. Beaumont 606, lji3 
 
 PAGE 
 
 Durham & Sunderl. Ey. Co. D.Walker 8] 8 
 Durling v. Lawrence Errata 
 
 Durling v. Loveland 170 
 
 Durrant v. Friend 210 
 
 Durrell v. Bederley 1193 
 
 Durrell v. Evans 380, 859, 927 
 
 Dutton, Ee 173 
 
 Dutton V. Solomonson 879 
 
 Dutton 0. "Woodman 634, 680 
 
 Dwyer v. Collins 407, 409, 787 
 
 Dwyer v. Eich 135 
 
 Dyce Sombre v. Troup 204, 338 
 
 Dye V. Bennett 447, 448, 449 
 
 Dyer v. Best 92 
 
 Dyer v. Dyer 850 
 
 Dyer v. Green 1528 
 
 Dyke «. Aldridge 636 
 
 Dyke v. "Williams 542, 544 
 
 Dyne v. Nutley 1018 
 
 Dynen v. Leach 988 
 
 Dyson i;. "Wood 1312 
 
 Fade v. Jacobs Errata 
 
 Eadon v. Jeffcock 138 
 
 Eads V. Williams 1320 
 
 Eagleton v. Gutteridge 294, 1518, 1527 
 Eagleton v. Kingston 1546, 1549 
 
 Eamer v. Merle 329 
 
 Earl's Trusts, Re 12, 1308 
 
 Earli). Lewis 665, 1476 
 
 Earle v. Picken 372, 374, 7^:2, 1232 
 
 Earp V. Henderson 285 
 
 Earp V. Lloyd 1494 
 
 East V. Chapman 316, 1234 
 
 East Lond. Waterw. Co. v. Bailey 823 
 East Cos. Eail. Co. v. Broom 824 
 
 East. Union Ry. Co. v. East. Cos. Ey. Co. 
 
 1468 
 East. Union Ey. Co. v. Symonds 594, 597 
 Eastman v. Tuttle 710 
 
 Eastmure v. Laws 1423 
 
 Easton v. Carter 1436 
 
 Eastwood V. Kenyon 865 
 
 Eastwood V. Saville 911 
 
 Eccles V. Harrison 626 
 
 Eccles. Commiss. v. Merral 117, 184, 825 
 Eccleston v. Speke 626, 636 
 
 Eckersley v. Piatt 173, 894 
 
 Eckstein v. Eeynolds 55 
 
 Edan v. Dudfield 55, 699, 879, 912 
 
 Eden v. Blake 947 
 
 Edge v. Hillary 350 
 
 Edge V. Strafford 870 
 
 Edgeworth v. Johnston Errata 
 
 Edie V. East India Co. 6 
 
 Edie V. Kingsford 366 
 
 Edme, ex parte 1118 
 
 Edmonds v. Challis 1512 
 
 Edmonds v. Foley, Ld. 1501 
 
 Edmonds v. Foster 132, 673 
 
 Edmonds v. Goater 907 
 
 Edmonds v. Harris 286 
 
 Edmonds v. Walter 1179 
 
 Edmondson i>. Stevenson 134 
 
 Edmunds v. Downes 858, 904, 9t6 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 
 PAGE 
 
 
 l-AGE 
 
 Edmunds v. Greenwood 
 
 46 i 
 
 Elworthy v. Sandford 
 
 392 
 
 Edmunds v. Low 
 
 1025 
 
 Emanuel v. Robarts 
 
 712 
 
 Edmunds v. Newman 
 
 656 
 
 Erableton v. Brown 
 
 135 
 
 Edwards, Re 
 
 891 
 
 Emerson v, Blonden 
 
 •646 
 
 Edwards v. Bates 
 
 958 
 
 Emery v. Barnett 
 
 119 
 
 Edwards v. Buchanan 
 
 1295, 1484 
 
 Emery v. Grocock 
 
 150 
 
 Edwards v. Crook 
 
 498 
 
 Emery v. Twombly 
 
 1538 
 
 Edwards v. Edwards 
 
 851 
 
 Emma, The 
 
 1499 
 
 Edwards v. Etherington 
 
 983 
 
 Emmerson v. Heelis 
 
 874, 927 
 
 Edwards v. Hall 
 
 871 
 
 Emmerton v. Matthews 
 
 985 
 
 Edwards v. Havell 
 
 215 
 
 Emmet v. Dewhirst 
 
 955 
 
 Edwards v. Hodges 
 
 235 
 
 Emsley, Re 
 
 542, 544 
 
 Edwards v. Janes 
 
 911 
 
 Engel V. Fitch 
 
 982 
 
 Edwards v. Jevons 
 
 1000 
 
 EngelL v. Fitch 
 
 982 
 
 Edwards v. Jones 
 
 346 
 
 England v. Downs 
 
 •998 
 
 Edwards v. Lond. B. & S. C. Ry, Co. 988 
 
 England v. Slade 
 
 150 
 
 Edwards v. Matthews 
 
 353 
 
 English V. Tottie 
 
 1498 
 
 Edwards v. R. 
 
 102 
 
 English Jt. Stock Bk., R« 
 
 1078 
 
 Edwards v. Wakefield 
 
 464 
 
 Ennis's case 
 
 637 
 
 Edye u, Salisbury 
 
 1004 
 
 Enokln v. Wylie 
 
 1455 
 
 Egan V. Cowan 
 
 1551 
 
 Enos V. Tuttle 
 
 503 
 
 Egan V. Larkin 
 
 85, 424, 1538 
 
 Ensign v. "Webster 
 
 719 
 
 Egerton v. Mathews 
 
 853, 860 
 
 Enticknap v. Rice 
 
 1244 
 
 Egg V. Barnett 
 
 186 
 
 Entwistle v. Davis 
 
 872 
 
 Ehrenspergen v. Anderson 
 
 403 
 
 Entwistle v. Dent ' 
 
 1317 
 
 Eicholz V. Bannister 
 
 984 
 
 Enyon, Re 
 
 .883 
 
 Eioke V. Nokes 
 
 788, 903 
 
 Eriskine v. Murray 
 
 5 
 
 Elden v. Keddell 
 
 383, 1325 
 
 Ernest v. Nioliolls 
 
 S23 
 
 Eldridge's case 
 
 727 
 
 Erskine v. Adeane 
 
 S83 
 
 Eldridge v. Knott 
 
 144, 147, 149 
 
 Erwin V. Saunders 
 
 961 
 
 Elect. Teleg. Co., Re, ex parte Bunn 
 
 Escott V. Mastin 
 
 1295 
 
 
 1077, 1078 
 
 Espey V. Lake 
 
 166 
 
 Eley V. Positive Govt. &c. 
 
 Co. 830, 868 
 
 Essex, Countess of, case 
 
 477 
 
 Elgar V. "Watson 
 
 695 
 
 Essex "Witches 
 
 724 
 
 Elias V. Griffith 
 
 Errata 
 
 EstiU V. Taul 
 
 1398 
 
 Eliot II. Allen 293 
 Elkin V. Janson 335, 336, 337, 345 
 
 Elkington v. Holland 932 
 
 EUenborough's, Ld., case 644 
 
 Ellershaw v. Robinson 329 
 
 EUice, Re 174 
 
 Ellice V. Roupell 470 
 
 EUiott V. Elliott 54 
 
 Elliott V. Kemp 141, 142 
 
 Elliott V. North East. Rail. Co. 138 
 
 Elliott V. Piersol 538 
 
 Elliott V. South Devon Rail. Co. 60 
 
 Elliott V. Thomas 876 
 
 Ellis V. Abrahams 265 
 
 EUis V. Cowne 600 
 
 Ellis V. Ellis 377 
 
 Ellis V. Saltan 790 
 
 Ellis V. Thompson 186 
 
 Ellis V. Watson 634, 717 
 
 Ellmakerw. Buckley 1206 
 
 Elmer v. Creasy 466 
 
 Elmore v. Kingscote 856 
 
 Elmore v. Stone 878 
 
 Elms V. Elms 897 
 
 Elsam V. Faucett 325, 326 
 
 Elston V. Wood 636 
 Elton V. Larkins 647, 1216 
 
 Elwes V. Elwes 952 
 
 Elwood V. Bullock 1386 
 
 Euston, Ld., *. Ld. Hy. Seymour 893 
 
 Evans v. Angell 1022 
 
 Evans v. Beattie 658 
 
 Evans v. Birch 339 
 
 Evans v. Dallow 897, 899 
 
 Evans v. Davies 812 
 
 Evans v. Evans & Robinson 1422 
 
 Evans v. Fryer ?27, 232 
 
 Evans v. Getting 1483 
 
 Evans v. Jones 1507 
 
 Evans v. Morgan 377, 495 
 
 Evans v. Nichol 710 
 
 Evans v. Phillips 1255 
 
 Evans v. Powis 237 
 Evans v. Rees 522, 530, 531, 533, 565, 
 1030, 1108, 1498, 1468, 1530 
 
 Evans v. Roberts 873, 874 
 
 Evans v. Roe 966 
 
 Evans v. Simon 908 
 
 Evans v. Sweet 399 
 Evans v. Taylor 520, 521, 531, 1319, 1322 
 
 Evans v. Watson 1042 
 
 Evatt V. Hunt 938 
 
 Evelyn v. Haynes 1421 
 
 Everard v. Poppleton 932 
 
 Everett v. Lowdham 1174 
 
 Everett v. Robertson , 902 
 
 Everett ». Youells ' 1441 
 
 Everingham v. Roundell 476 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 
 PAOE 
 
 'Everth.v. Bell 
 
 697 
 
 Ewart V. Jones 
 
 1122, 1123 
 
 Ewart V. Williams 
 
 602 
 
 Ewer •». Ambrose 
 
 1219, 1286 
 
 Ewing V. Osbaldlston 
 
 1234 
 
 Exall V. Partridge 
 
 408 
 
 Exeter, May. of, *. Warren 
 
 147, 576, 
 
 
 578, 580 
 
 Eyre v. Smith 
 
 1435, 1464 
 
 E. falsely called D. v. D. 
 
 201 
 
 Eabrigas v. Mostyu 
 
 641 
 
 Facey v. Hurdon 
 
 49 
 
 Fatrlie v. Christie 
 
 1514 
 
 Fairlie v. Denton 
 
 680 
 
 Eairlie v. Hastings 
 
 513, 514 
 
 Fairman v. Oakford 
 
 185 
 
 Fairtitle v. Gilbert 
 
 111 
 
 Faith V. M'Intyre 
 
 350, 354 
 
 Falconer v. Hanson 
 
 421, 623 
 
 Falkner v. Bond 
 
 727, 728 
 
 Fallon V. Eobins 
 
 952 
 
 Falmouth, E. of, v. Moss 
 
 770 
 
 Falmouth, E. of, v. Roberts 421, 1513, 
 1618, 1538, 1540 
 
 Falmouth, E. of, -i. Thomas 875 
 
 Fanny Carvill, The 213 
 
 Farina v. Home 879 
 
 Farnell v. Boston & W. Ey. Co. 988 
 
 Farquhar v. Southey 1518, 1523 
 
 Farquharson v. Seton 1 425 
 
 Farquharson v. Tweedale 172 
 
 Farrah r. Keat 1067 
 
 Farrar v. Beswick 192 
 Farrar v. Hutchinson 625, 719, 946 
 
 Farrar v. Stackpole 1000 
 Farrer t). St. Catherine's College 1013, 
 
 1016 
 
 Farringdon v. Clerk 710 
 
 Farrington v. Donohne 869 
 
 Farrow v. Mayes 936 
 
 Farrow v. Wilson 990 
 
 FarweU v. Hilliard 1415 
 
 Fasset v. Brown 162 
 
 Faulder v. Silk 1400 
 
 Faulds V. Jackson 883, 885 
 
 Faulkner v. Brine 1199 
 
 Fanssett v. Faussett 615, 645 
 
 Faviell v. East. Count. Rail. Co. 708 
 
 Fawcett v. Cash 47, 185 
 
 Fawcett v. Jones 169 
 
 Fawcus V. Sarsiield 979 
 
 Fawkes v. Lamb ^ 960, 993 
 
 Fazakerley v. Wiltshire 26 
 
 Fearn v. Lewis 905 
 
 Feaubert v. Tiirst 1198 
 
 Felkin v. Herbert, Ld. 1504 
 
 Fellowes v. Clay 91 
 
 Fellowes v. Williamson 500 
 
 Feltham v. England 988 
 
 Feltham's Trusts, Re 1014 
 
 Fenn v. Griffith 365 
 
 Fennell v. Tait 1073 
 
 Fenner v. Lend. & S. F. Ey. 1496 
 
 Fenton v. Emblers 869 
 
 Fenwiok, Re 
 Fenwick v. Bell 
 Fenwick v. Laycock 
 Fenwiok v. Reed 
 Fenwick v. Thornton 
 Ferguson v. Mahon 
 
 PAGE 
 
 895 
 1193, 1194 
 717 
 776 
 635 
 9, 1445, 1449, 
 
 1450, 1451, 1460 
 Femandey v. Glynn 1521 
 
 Fernandez, ex parte 1176, 1226, 1227 
 Fernley v. Worthington 391, 1397 
 
 Ferrand v. Milligan 1558 
 
 Ferraris, Countess de Zichy, v. Marq. of 
 Hertford 885, 891, 899 
 
 Ferrer «). Oven 1319 
 
 Ferrers v. Arden 1409 
 
 Ferrers, Ld., v. Shirley 1547 
 
 Ferris'^y. Goodburn 957, 1025 
 
 Fesenmayer ^>. Adcock 143 
 
 Feversham, Ld., v. Emerson 108 
 
 FewD. Gnppy 772, 1501 
 
 Fiddey, Ee 113 
 
 Field V. Flemming 652 
 
 Field V. Hemming 652 
 
 Field V. Holland 635 
 
 Field V. Lelean 961, 977 
 
 Field V. Woods 291, 712 
 
 Figg V. Wedderburae 648 
 
 Filipowski v. Merryweather 195 
 
 Filmer v. Gott 948, 951 
 
 Financial Ins. Co., Re 1078 
 
 Finch V. Bp. of Ely 1263 
 
 Finch V. Finch 173, 394, 1223 
 
 Finlay v. Bristol & Ex. Rail. Co. 824, 
 
 825 
 Finlay v. Finlay 65 
 
 Finnerty v. Tipper 315, 316 
 
 Finney v. Beesley 447 
 
 Finney v. Finney 1405 
 
 Finney v. Forward 464 
 
 Finn's case 422 
 
 Firkin v. Edwards 402 
 
 Firth, in re, ex p. Schofield Errata 
 
 Fischer v. Hahn 447, 450 
 
 Fischer v. Izataray 460 
 
 Fischer i>. Popham 885 
 
 Fischer v. Sztaray 450 
 
 Fisher v. Clement 100 
 
 Fisher v. Budding 1310 
 
 Fisher v. Heming 776 
 
 Fisher ik Joyce 333 
 
 Fisher v. Kitchingman 1310, 1313 
 
 Fisher v. I^ane 1312 
 
 Fisher v. Magnay 708 
 
 Fishery Ogle 1452, 1453 
 
 Fisher v. R(]nald3 1227, 1233 
 
 Fisher v. Samuda 476 
 
 Fisher v. Q'hames June. Rail. Co. 294 
 Fishmongers' Co. v. Dimsdale 1537 
 
 Fishmongers' Co. v. Robertson 117, 280, 
 687, 718, 1537 
 Fitch V. Jones 336, 337 
 
 Fitch V. Smallbrook 1310 
 
 Fitz V. Rabbits 393 
 
 Fitzgerald v. Dressier 862 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 PAGE 
 
 Fitzgerald v. Elsee 1533 
 
 Fitzgerald v. Fitzgerald 415, 1379 
 
 Fitzgerald v. O'Flaherty 624 
 
 Fitzgerald v. 'Williams 253 
 
 Fitzgibbon v. Greenwood 464 
 
 Fitz-Jamea v. Moys 1158 
 
 Fitzmaurice v. Bayley 858, 926 
 
 Fitzmaurice, Re 916 
 
 Fitzpatriok v. Dunpliy 142 
 
 Fitzroy, Sir C, Re 893 
 Fitzwalter Peer. 555, 556, 558, 1554, 
 1555, 1556 
 
 Flad Oyen, The 1446 
 
 Flagg V. Mann 1168 
 
 Flannery's case 1051 
 Flannery v. "Waterford & C. Ey. Co. 
 
 196 
 
 Fleet «. Murton 976 
 
 Fleet ». Pen-ins 1316, 1317' 
 
 Fleming o. Fleming 1008 
 
 Fletcher v. Braddyll 187, 1191 
 
 Fletcher u Calthrop 159 
 
 Fletcher v. Froggatt 615 
 
 Fletcher v. Gillespie 958 
 
 Fletcher v. Gt. West. Rail. Co. 138 
 
 Flinn v. Calow 962 
 
 Flitters v. AUfrey 1418 
 
 Flory V. Denny 819 
 
 Flower v. Herbert 686, 706 
 
 Floyd V. Barker 1395 
 
 Flureau v. Thornhill 981 
 
 Fogarty v. Smith 23 
 
 Foggassa's case 9 
 
 Foley V. Tabor 348 
 Folkes ». Chad 311, 1189, 1191 
 
 FoUett V. Jefferyes 767, 782 
 
 Fonsick ». Agar 421 
 
 Foot V. Stanton 886 
 
 Foot V. Tracy 329 
 
 Foote V. Hayue 774 
 
 Foquet ». Moor 841 
 
 Forbes' case 1078 
 
 Forbes t). Forbes 215,216 
 
 Ford V. Ager 90 
 
 Ford V. Batley 1016 
 
 Fordi). Cotesworth 186 
 
 Ford 0. Elliott 606 
 
 Ford V. Ford 943 
 
 Ford V. Tennant 785 
 
 Ford V. Yates 961 
 
 Fordham v. Wallis 632 
 Foreman v. Free Fishers of Whitstable 
 
 147 
 
 Forman «. Wright 249 
 
 Forrest v. Forrest 850 
 
 Forshaw v. Chabert 1514 
 Forshaw v. Lewis 458, 1495, 1499 
 
 Forster v. Clements 713 
 
 Forater v. Forster 357, 1539 
 
 Forster i). Hale 849 
 
 Forster v. Mackreth 193 
 
 Forster v. E.owland 86 1 
 
 Forsyth v. Bristowe 917 
 
 Forsythe v. Norcross 697 
 
 
 
 PAQK 
 
 Fort V. Clarke 
 
 
 554 
 
 Fortescue v. Fortesoue 
 
 1502 
 
 Forth V. Stanton 
 
 
 862 
 
 Foster v. AUansou 
 
 
 958 
 
 Foster v. Bank of E 
 
 igland 
 
 1263 
 
 Foster v. Blakelock 
 
 
 720 
 
 Foster v. Charles 
 
 
 100 
 
 Foster v. Compton 
 
 
 1310 
 
 Fosters. Hall 
 
 
 777 
 
 Foster v. Jolly 
 
 
 950, 961 
 
 Foster v. Mentor Life Asa. Co. 59, 702, 
 
 715, 977 
 Foster v. M'Mahou 872, 664 
 
 Foster v. Point(!r 231, 404, 408 
 
 Poster V. Shaw 471, 1393 
 
 Foster v. Steele 212 
 
 Foulkes V. Sellway 327, 494 
 
 Fountain u Boodle 134, 325 
 
 Fountain v. Youug 777 
 
 Fowell V. Forrest 953 
 
 Fowkes V. Pascoe 851, 1024 
 
 Fowler v. Coster 349 
 
 Fowler v. Fowler 951, 1024 
 
 Fowler v. Savage 1394 
 
 Fowlis V. Davidson 338 
 
 Fox V. Clifton 611, 704 
 
 Foxi). Fox 850 
 
 Foxt). Jones 1264 
 
 Fox V. Waters 372, 631 
 
 Fox's case 1485 
 
 Foxcroft V. Nevens 658 
 
 France v. Lucy 400 
 
 Franchot v. Leach 948 
 
 Francis v. Cockrell 980 
 
 Francis v. Dichfteld 965, 1023 
 
 Francis v. Hawkesley 902 
 
 Francisco v. Gilmore 443 
 
 Francklin's case 34 
 
 Frank v. Frank 1400 
 
 Frankum v. Ld. Falmouth 237, 238 
 Eraser, Re 893 
 
 Eraser v. Burrows 1497 
 
 Eraser v. Hill 40 
 
 Fraser D. Pendlebury 114 
 
 Fray v. Blackburn 1395 
 
 Era yes v. Worms 1456 
 
 Frederick u Att. -Gen. 536 
 
 Free v. Hawkins 714, 961 
 
 Free Fishers of Whitstable v. Foreman 
 
 147 
 Free Fishers of Whitstable v. Gann 147 
 Freeland v. Heron 679 
 
 Freeman v. Arkell 888, 795 
 
 Freeman v. Baker 1326 
 
 Freeman v. Cooke 108, 109, 701, 707, 
 
 716 
 Freeman v. Freeman 894, 895 
 
 Freeman v. Gainsford 872 
 
 Freeman v. Phillipps 520, 531, 637, 638 
 Freeman v. Pope 163 
 
 Freeman v. Read 620, 521, 1322 
 
 Freeman v. Steggal 661, 652, 1513, 
 
 1536 
 Freeman v. Tatham 618 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Freeman v. AValker 717 
 
 Freemoult v. Dedire 1196 
 
 Tieestone v. Butcher 199 
 
 French u. French HOi 
 
 Freshney v. "Wells 263 
 
 Fricker's case 1078 
 Friend v. Lend. Chat. & D. Ey. 1497 
 
 Frith, Be 890 
 
 Frith V. Barker 972 
 
 Frontine v. Frost 339 
 
 Frost V. Holloway 1230 
 
 Frost-!), Oliyer 215 
 
 Fronde v. Hobbs 35 
 
 Fry V. Chapman 367 
 
 Fry V. Hill 49 
 Fry V. Wood 421, 424 
 
 Fryer D. Wiseman 1171 
 
 Fuentes v. Montis 140 
 Fuller V. Crittenden 719, 946 
 
 Fuller V. Fen wick 1467 
 Fuller V. Fotch 1S31, 1337, 1401 
 
 Fuller V. Hampton 666 
 
 Fuller V. Pattrick 1535 
 
 Fuller V. Prentice 1044 
 
 Fuller u Kedman 903 
 
 Fulmerston v. Steward 842 
 
 Fulton V. Andrew 170 
 
 Fulwood's, Lady, case 1253 
 
 Furley v. Wood 972 
 
 Furlong v. Howard 410 
 
 Furly V. Newnham 1072 
 
 Furneaux v. Hutchins 299 
 FnrneU u Stackpoole 12,1301 
 Furness v. Meek 54, 59, 1526 
 
 Fursdon v. Clogg 671 
 
 Fyler v. Givens 854 
 
 Fysoni). Chambers 142 
 
 Fyson v. Kemp 1293 
 
 Gabat v. Lloyd 190 
 
 Gabhett v. Clancy 1321 
 Gabriel v. Dresser 261, 265 
 
 Gad V. Houghton 963 
 
 Gainsford v. Grammar 649 
 
 Galbraith v. Neville 1460 
 
 Gale V. Lindo 703 
 Gale V. Williamson 960, 951, 968 
 
 Gales V. Ld. Holland 696 
 
 Gallagher v. Piper 988 
 
 Galloway v. Jackson 280 
 
 Galsworthy v. Norman 1495 
 
 Gananogne, The 202 
 
 Ganer v. Lanesborough 1198 
 Gann v. Free Fishers of Whitstable 14? 
 
 Gann v. Gregory 172 
 
 Gann v. Johnson 147 
 
 Garbutt v. Simpson 1213 
 
 Garcias v. Ricardo 1445 
 Garden v. Cresswell 1036, 1066 
 
 Gardener u. EuBor 164 
 
 Gardner, Re 474 
 
 Gardner v. Croasdale 261 
 
 Gardner v. Dangerfield 1504 
 
 Gai-dner v. Grout 878 
 
 Gardner v. Moult 641 
 
 PAGE 
 
 Gardner v. McMahon 902, 906 
 
 Gardner Peer. 496, 551 
 
 Gardner v. Walsh 1516 
 
 Gardom, ex parte 193 
 
 Garey v. Nicholson 615 
 
 Garey v. Pike 286 
 
 Garland v. Cope 580, 581 
 
 Garland v. Jacomb 713 
 
 Garland v. Scoones 1310 
 
 Garloeh v. Geortner 186 
 
 Gamer v. Gamer 1014 
 
 Garnet v. Ball 642 
 
 Garnet v. Bradley Errata 
 
 Gamett v. Ferrand 1395 
 
 Garnett v. Woodcock 44 
 
 Garnier, Re 1454 
 
 Garnons v. Barnard 627 
 
 Garrard v. Tuck 151 
 
 Garrells'D. Alexander 1546, 1549 
 
 Garrett v. Handley 963 
 
 Garth v. Howard 513, 616 
 
 Gartside v. Outram 767 
 Garvin v. Carroll 1219, 1286, 1287 
 
 Gas Light & Coke Co. v. Turner 110 
 
 Gaskill V. Skeene 680 
 
 Gass V. Stinson 1238 
 
 Gathercole v. Miall 388 
 
 Gatty V. Fry 712 
 
 Gaunt V. Johnson 1044 
 
 Gaunt V. Wainman 116, 1408 
 
 Gausden, Re 888 
 
 Gay V. Hill 933 
 
 Gaze V. Gaze 885 
 
 Geach v. Ingall 332, 333, 353 
 
 Geaves v. Price 896 
 
 Gee v.. Ward 631, 538 
 
 Geery v. Hopkins 1263 
 
 Geill V. Jeremy 42 
 
 Geils V. Geils 1447 
 
 Gen. Steam Nav. Co. v. Brit. & Col. St. 
 
 Nav. Co.- 214 
 
 Gen. Steam Nav. Co. v. Guilloa 1446, 
 
 1449, 1456 
 
 Gen. Steam Nav. Co. v. Hedley 7 
 
 Gen. Steam Nav. Co. v. Lond. & Ed. 
 
 Ship Co. Errata 
 
 Gen. Steam Nav. Co. v. Mann 8 
 
 Gen. Steam Nav. Co. v. Morrison 8 
 
 Gening v. The State 345 
 
 George's Estate, Re 1027 
 
 George v. Pritchard 981 
 
 George v. Surrey 1546 
 
 George v. Thompson 402 
 
 Geralopulo v. Wieler 383 
 
 Gerish v. Chartier 312 
 
 German Mining Co., Re 193 
 
 Germania, The 484 
 Gervis v. Grand West. Canal Co. 1473 
 
 Gery v. Redman 136, 580 
 
 Geyer v. Ar[uilar 1401 
 
 Geyor v. Irwin 1122 
 
 Gibblehouse v. Strong 580, 661 
 
 Gilibon II. Budd 672 
 
 Gibbon v. Featherstonhaugh 186 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 Gibbon ». Young 
 Gibbon's Case 
 Gibbous V. Powell 
 Gibbons v. Wilcox 
 Gibbs V. Cruikshank 
 Gibbs V, Fremont 
 Gibbs V. Phillipson 
 Gibbs V. Pike 
 Gibbs V. Ralph 
 Gibson ii. Baghott 
 Gibson v. Doeg 
 Gibson v. Doev 
 
 PAGE 
 
 969 
 
 1484 
 402 
 634 
 
 1419 
 55 
 
 1116 
 104, 134, 1559 
 
 1441 
 925 
 153 
 153 
 
 Gibson v. East India Co. 820, 824, 825 
 
 Gibson v. Holland 857, 859 
 
 Gibson v. Hunter 312 
 
 Gibsons. M'Carty 1416 
 Gibson v. Small 977, 978, 979, 988 
 
 Giffard v. Williams 1349 
 
 Gilbert v. Smith 691 
 
 Gilbert v. Sykes 869 
 
 Gilchrist v. Bale 496, 498 
 
 Gildea v. Brien 1114 
 
 Giles V. Dyson 720 
 
 GOes V. Groves 263 
 
 Giles V. Siney 1311 
 
 Giles V. Warren 894, 896 
 
 Gillanders t;. Ld. Rossmore 870 
 
 Gillard v. Bates 789 
 
 Gillespie v. Cumming 1310 
 
 Gillespie v. Moon 951, 952 
 
 Gillespie v. E,us3el 1441 
 
 Gillett V. Abbott 115 
 
 Gillett V. Gane 1014 
 
 GiUiat V. Gilliat 1022 
 
 Gillies V. Smither 1532 
 
 Gillia V. Gillis 216 
 
 Gillman v. Connor 48 
 
 Gilpin V. Fowler 133 
 
 Giraud v. Richmond 868, 956 
 
 Gisbome v. Hart 1319 
 
 Givens v. Bradley 324 
 
 GladweU v. Steggall 252 
 
 Gladwell v. Turner 43 
 
 Glaunibanta, The 1560 
 
 Glass V. Beach 414 
 
 Glasscott y. Copper Miners' Co. 1504 
 
 Glave, ex parte 1090 
 
 Glave V. Wentworth 618 
 Gleadow v. Atkin 569, 577, 589, 691 
 
 Glencairn Peer. 217 
 
 Glengall, E. of, v. Barnard 1024 
 
 Glenister v. Lady E. Thynne 704 
 
 Glerawley's, Ld., case 645 
 
 Glory, Re, The 1085 
 
 Glossop V. Jacob 25 
 
 Glossop V. Pole 1401 
 
 Glover, ex parte 1561 
 
 Glover v. Hall 1494, 1604 
 
 Glnbb V. Edwards 1537 
 
 Glyn V. Caulfield 775, 1501 
 
 Glyn 17. Houston 1264,1493 
 
 Glynn v. Bk. of England 569, 585 
 
 Goate V. Goate 902 
 
 Goblet V. Beechey 967, 998 
 
 
 PAGE 
 
 Godard v. Gray 
 
 1449 
 
 Goddard's case 
 
 115 
 
 Goddard v. Parr 
 
 1209, 1210 
 
 Godefroy v. Dalton 
 
 51 
 
 Godefroy v. Jay 
 
 1310 
 
 Godfrey v. Macaulay 
 
 1391 
 
 Godfrey v. Turnbull 
 
 1391 
 
 Godmanchester v. Phillips 
 
 414 
 
 Godson V. Smith 
 
 1415 
 
 Godts V. Rose 
 
 977 
 
 Godwin v. CuUey 
 
 903, 907 
 
 Godwin v. Francis 859, 860, 982 
 
 Goff V. Gt. North. Ry. Co. 824 
 
 Goffi). Harris 695 
 
 Goff D.Mills 1066,1067 
 
 Gold V. Canham 1460 
 
 Goldicutt V. Townsend 866 
 
 Goldie V. Shuttleworth 653 
 Golding V. Wharton Salt Works 229, 
 
 1560 
 
 Goldshede v. Swan 1000 
 
 Goldstein v. Foss 62 
 
 Goldthorpe v. Hardman 103 
 
 Gomm V. Parratt 1494 
 
 Gompertz v. Bartlett '287, 985 
 Goodall V. Little 774, 775, 777, 783 
 
 Goode V. Job 916, 1229 
 
 Goodered v. Armour 407 
 
 Goodier v. Lake 893 
 
 Goodin v. Smith 1402 
 
 Goodinge v. Goodinge 1004 
 
 Goodman v. Chase 863 
 
 Goodman v. Goodman 180, 495 
 
 Goodman v. Grifaths 866, 858 
 
 Goodman v, Harvey 1495 
 
 Goodman v. Holroyd 462, 466 
 
 Goodright v. Cordwent 676 
 
 Goodright v. Davis 676 
 
 Goodright v. Harwood 895 
 
 Goodright v. Hicks 324 
 
 Goodright v. Hodges 861 
 Goodright v. Moss 536, 540, 542, 546, 
 554, 799, 800 
 
 Goodright v. Saul 650 
 
 Goodright v. Straphan 1629 
 
 Goodtitle v. Baldwin 147 
 Goodtitle v. Braham 347, 1190, 1556 
 
 Goodtitle v. Dew 622 
 
 Goodtitle v. Jones 152 
 
 Goodtitle v. Lammiman 222 
 
 Goodtitle v. Milburn 176 
 
 Goodtitle v. Southern 1018 
 
 Goodwin v. Hubbard 851 
 
 Goodwin v. Lordon 1119 
 
 Goodwin v. Robarts 6, 707 
 
 Goodwin v. West 1044, 1045 
 
 Goodwyn v. Cheveley 49 
 
 Goold V. White 217 
 
 Goom V. Aflalo 380 
 
 Gordon's case 1072 
 
 Gordon's, Ld. George, "trial 501 
 
 Gordon v. Gordon 943 
 
 Gordon v. Ld. Reay 892 
 
 Gordon v. Secretan 1535 
 d 
 
TABLE OF CASES CITED. 
 
 
 PAGE 
 
 Gore, Ee 
 
 887 
 
 Gore V. Bethel 
 
 214 
 
 Gore V. Bowser 
 
 785 
 
 Gore V. Gahagan 
 
 170 
 
 Gore V. Harris 
 
 785 
 
 Gore V. Hawsey 
 
 680 
 
 Gore V. "Wright 
 
 845 
 
 Gorham i>. Canton 
 
 500 
 
 Gorrissen v. Perrin 
 
 970 
 
 Gorton v. Dyson 
 
 1325 
 
 Gosbell V. Archer 
 
 926 
 
 Gosford, Ld., </. Eobb 
 
 374, 827 
 
 Goslin V. Corry 
 
 1558 
 
 Gosling V. Birnie 
 
 710 
 
 Goss V. Ld. Nugent 944, 954, 955, 95C 
 
 Goss V. Quinton 617 
 
 Goss V. Watlington 571, 658 
 Gossett). Howard 101,102,159,160,1081 
 
 Gott V. Gandy 287, 983 
 
 Gondy v. Duncomhe 47 
 
 Gould V. Coombs 1516 
 
 Gould V. Gould 192 
 
 Gould 1). Shirley 906 
 
 Gouldie v. Gunston 706 
 
 Gouldsworth v. Knights 119 
 
 Gourley v. PlimsoU 458 
 
 Governor v. Bell 1487 
 
 Governor v. Jefifreys 1487 
 
 Gowan v. Foster 911 
 
 Grady's ease 161 
 
 Graham, Eliz., Ee 1434 
 
 Graham, Ee 895 
 Graham v. Birkenhead Eail. Co. 702 
 
 Graham v. Chapman 101 
 
 Graham v. Cox 186 
 
 Graham D. Dyster 1218,1512 
 
 Graham v. Glover 1073 
 
 Graham v. Hope 1391 
 
 Graham v. Oldis 399 
 Graham v. Van Pieman's Land Co. 49 
 
 Graham v. Whichelo 844 
 
 Grand June. Can. Co. v. Dimes 1450 
 
 Graue •». Cooper 1502 
 
 Grant v. Bagge 27 
 
 Grant v. Fletcher 380 
 
 Grant v. Gould 1402 
 
 Grant v. Grant 645, 810, 997 
 
 Grant v. Jackson 633, 634, 668, 718 
 
 Grant v. Maddox 969 
 
 Grants M'Lachlin 1453 
 
 Grant v. Moser 26 
 
 Grant v. Thompson 1190 
 
 Gravenor v. Woodhoase 120 
 
 Grav«s v. Key 719 
 
 Graves v. Legg 189 
 
 , Graves v. M 'Carthy 1 1 1 7, 1 1 1 8 
 
 Graves v. Weld 874 
 
 Gray v. Boswell 952 
 
 Gray v. Cookson 1397 
 
 Gray v. Dinneu _ 52 
 
 Gray v. Haig ' 131 
 
 Gray v. Harper 906 
 
 Gray v. Palmers 634 
 
 Gray v. Pearson 943 
 
 Gray v. Pentland 
 Gray v. Warner 
 Grayson v. Atkinson 
 Grayson v. Wilkinson 
 Great Eastern, The 
 
 PAGE 
 
 797, 798 
 165 
 890 
 1539 
 215 
 Great North. Eail. Co. v. Sheppard 194 
 Great West. Coll. Co. v. Tucker 466 
 Great West. Eail, Co. v. Bennett 138 
 Great West. Eail. Co. v. Blower 979 
 Great West. Eail. Co. v. Willis 514 
 
 Greaves v. Ashlin 961 
 
 Greaves v. Greenwood 206 
 
 Greaves v. Hunter 1548 
 
 Greaves v. Legg 189 
 
 Greely v. Smith 1408, 1441 
 
 Green v. Brown 211 
 
 Green v. Cresswell 865 
 
 Green v. Gfttewick 424 
 
 Green v. Green 1422 
 
 Green v. Howard 1004 
 
 Green v. Jackson 182 
 
 Green v. Kopke 194 
 
 Green v. London Gen. Omn. Co. 824 
 Green v. New Eiver Co. 1392 
 
 Green v. Waller 10 
 
 Green v. Weaver 706 
 
 Greenfield v. Eeay 464 
 
 Greenish v. White 716 
 
 Greenlaw v. King 778 
 
 Greenough v. Eccles 1199 
 
 Greenough v. Gaskell 766, 768, 770, 783 
 Greenough v. M'Clelland 962 
 
 Greenshield v. Pritchard 1122 
 
 Greenshields v. Crawford 1542, 1543 
 Greenway, ex parte 395 
 
 Greenwich Bd. of Works v. Maudslay, 
 
 148 
 Gregg V. Wells 701, 707 
 
 Gregg's case 726 
 
 Gregory v. Doidge 120 
 
 Gregory v. Duif 233 
 
 Gregor}"- v. Howard 667 
 
 Gregory v. Marychurch 1177 
 
 Gregory v. Parker 647 
 
 Gregory v. Queen's Proctor 171 
 
 Gregory v. Tavernor 1186 
 
 Gregory v. Thomas 324 
 
 Gregory v. West Midi. Ey. Co. 918 
 
 Gregory's Settlm., Ee 1014 
 
 Gregson v. Euck 381 
 
 Grellier v. Neale 162 
 
 Gremaire v. Le Clerk Bois Valon 182 
 Grenfell v. Girdlestonc 903 
 
 Gresham Hotel Go. v. Manning 490, 491 
 Gresley v. Mousley 112, 164 
 
 Greves, Ee 891 
 
 Groville v. Chapman 1193 
 
 Greville v. Stulz 448, 451, 1317 
 
 Greville v. Tylee 170, 172, 899 
 
 Grew V. Hill 690 
 
 Grey v. Young 496 
 
 Grigg'scase 1145,1147,1152 
 
 Griffin V. Brown 1393 
 
 Griffin v. Hoskyns 1038 
 
TABLE OF CASES CITED. 
 
 Griffith V. Davies 
 Griffith V. Rioketts 
 Griffiths, ex parte 
 Griffiths V. Gidlow 
 Griffiths V. Griffiths 
 Griffiths V. Jenkins 
 Griffiths V. Eigby 
 Griffiths V. Williams 
 Griffita v. Ivory 
 Griffits V. Payne 
 
 Grill V. Gen. Ins. Screw Collier Co. 451 
 Grimani v. Draper 
 Grimman v. Legge 
 Grimwood v. Bartels 
 
 Grimwood v. Cozens 173 
 
 Grimwood v. Moss 676 
 
 Grindell v. Brendon 1337 
 
 Grindell v. Godmond 200 
 
 Grinnell v. "Wells 325 
 
 Gripper v. Bristow 931 
 
 GrisseU v. Bristowe 190 
 
 Groenvelt v. Burrell 1255 
 
 Gi-ose V. West 136 
 
 Grosvenor v. Sherratt 165 
 
 Grouusell v. Lamb 286 
 
 Grove v. Ware 406 
 
 Groves v. Groves 851 
 
 Guardhouse v. Blackburn 169, 171 
 Guard, of Banbury Un. u. Robinson 697 
 Gudgen v. Besset 948, 1526 
 
 Guest V. Elwes 234, 239 
 
 Guest V. Warren 1420 
 
 Guidon v. Robson 704 
 
 Giiier v. O'Daniel 216 
 Guild's case, 728, 732, 734, 735, 736, 
 
 742 
 
 Gull V. Lindsay 237, 863 
 
 Gully V. Bp. of Exeter 388, 665 
 
 Gumm V. Tyiie 942 
 
 Gunn V. Roberts 215 
 
 Gunter v. M'Kear 448 
 
 Gunteri). M'Tear 448 
 Gurford v. Bayley 232, 237, 238 
 
 Gurney v. Langlands 1566 
 
 Gurr V. Rutton 494 
 
 Gutsole V. Mathers 284 
 
 Guy V. Sharpe 996 
 
 Guy V. West 137 
 
 Gwillim V. Gwillim 887 
 
 Gwynne v. Davy 954 
 
 Gyles V. Hill 1293 
 
 H., falsely caUed C, v. 0. 163 
 
 Habergham v. Vincent 891 
 
 Hackwood v. Lyall 215 
 
 Haddrick v. Heslop 40 
 
 Hadley v. Carter 500 
 
 Hadley v. Green 1425 
 
 Hadley «. M'Dougall 1501 
 
 Hagedorn v. Reid 594 
 
 Haggitt V. Ineflf 1308 
 
 Haig V. Newton 1185 
 
 Haigh V. Belcher 1207 
 
 Haigh V. Kaye 875 
 
 Haigh V. North Bierley Union 822 
 
 PAGE 
 
 
 PAGE 
 
 779, 785 
 
 Hailes v. Marks 
 
 40, 231 
 
 410, 1202 
 
 Haine v. Davey 
 
 294 
 
 1073 
 
 Haines v. East India Co. 
 
 70S 
 
 988 
 
 Haines v. Roberts 
 
 138 
 
 890 
 
 Haire v. Wilson 
 
 100 
 
 870 
 
 Hale V. Russ 
 
 1518 
 
 68 
 
 Hall, Re 
 
 892 
 
 649 
 
 Hall's Estate, Re 
 
 1337 
 
 1563 
 
 Hall V. Bain bridge 
 
 162 
 
 299 
 
 Hall V. Ball 385, 391, 
 
 392, 474 
 
 r'Co. 451 
 
 Hall V. Betty 
 
 981 
 
 204, 338 
 
 Hall V. Burgess 
 
 844 
 
 844, 845 
 
 Hallu Butier 
 
 120 
 
 1464 
 
 Hall V. Byron 
 
 140 
 
 Hall V. Cazenove 960 
 
 Hall V. City of London Brewery 982 
 Hall V. Conder 984, 985, 986, 987 
 
 Hall V. Eve 285, 288 
 
 Hall V. Featherstone 337 
 
 Hall V. Fisher 1022 
 
 Hall V. Hall 169 
 
 Hall V. Hill 646, 1023, 1024, 1025, 
 
 1026, 1027 
 Hall V. Janson 972 
 
 Hall V. Johnson 987 
 
 Hall V.Levy- 3421 
 
 Hall V. Lund 139 
 
 Hall V. Maule 160 
 
 Hall V. Mayor of Swansea 824 
 
 Hall V. Odber 1462 
 
 Hall V. Rouse 448 
 
 Hall V. Vanghau 288 
 
 Hall V. Warren 204 
 
 Hallack v. U. of Cambridge 160 
 
 Halleu V. Runder 870 
 
 Haller v. Worman 656 
 
 Hallet V. Mears 1045 
 
 Hallett V. Cousens 1179 
 
 Halley, The 214 
 
 Halliday v. Holgate 991 
 
 Halliday v. Martinett 593 
 
 Hallifax i». Lyle 109,712 
 
 Haly V. Lane 712 
 
 Hamber 11. Roberts 1544 
 
 Hambrook v. Smith 1223, 1504 
 
 Hamelinu. Bruck 1517 
 
 Hamerton o. HamertcJn 645 
 
 Hamerton v. Stead 841, 842, 844 
 
 Hamilton v. Nott 775 
 
 Hamilton v. Terry 903 
 
 Hammersley v. Baron de Biel 703, 8 SO, 
 866, 8fi7 
 Hammick v. Bronson 495 
 
 Hammond, Re 888 
 
 Hammond v. Bradstreet 5:^0 
 
 Hammond v. Rogers 214 
 
 Hammond v. Smith 903 
 
 Hammond v. Stewart 1034 
 
 Hammond's case 1550, 1556 
 
 Hampshire v. Peirce 1013 
 
 Hampton v. Spencer 618 
 
 Hanbury v. Ella 232 
 
 Hancock v. Somes 1357 
 
 Hancock v. Welsh 1412, 1420 
 
 d 2 
 
Hi 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Hand V. Hall 834 
 
 Handley v. Ward 1206 
 
 Hanmer v. Chance 144, 918 
 
 Hanna, The 214 
 
 Hannaford v. Hunn 1398, 1402 
 
 Hannaford v. Whiteway 188 
 
 Hannay v. Stewart 513 
 
 Hansard v. Eobinson 394 
 
 Hansom v. Armitage 877 
 
 Hanson v. Parker 636 
 
 Hanson v. Shackelton 24 
 
 Hanson v. Stetson 961 
 
 Harden v. Gordon 719 
 
 Harding v. Greening 130 
 
 Harding v. Jones 667 
 
 Harding v. King 1357 
 
 Hardman v. Willcock 710 
 
 Hardwick v. Hardwick 1018 
 
 Hardy v. Alexander 329 
 
 Hardy's case 791 
 
 Hardy, Ee 172, 949 
 
 Hare v. Copland 87 
 
 Hare v. Henty 43 
 
 Hare v. Hyde 1119 
 
 Hargest v. Fothergill 402 
 Hargi'ave v. Hargrave 123, 515, 551, 
 
 648 
 
 Hargreave v. Everard ] 66 
 
 Hargreaves v. Parsons 865 
 
 Harker, Re 900 
 
 Harland v. Morley 167 
 
 Harman v. Anderson 710 
 
 Harman v. Gurner 1007 
 
 Harman v. Reeve 876 
 
 Harmar v. Davis 670, 706 
 
 Harmer v. Bean 376 
 
 Harmer v. Bell 1401 
 
 Harmer v. Cornelius 989 
 
 Harmony, The 216 
 
 Harnor v. Groves 961 
 
 Harratt v. "Wise 62, 1391 
 
 Harrington v. fry 1543, 1547 
 
 Harris, Re 897, 899 
 Harris in re. Cheese v. Lovejoy Errata 
 
 Harris v. Berrall 896 
 
 Harris v. Costar 194 
 
 Harris D. Goodwyn 103, 953 
 
 Harris v. Hams 726, 1604 
 Harris v. Hill 410, 411, 778 
 
 Harris v. Mantle 283 
 
 Harris?). O'Loghlen 26 
 
 Harris ». Pepperell 952 
 
 Harris i>. Phillips 697 
 
 Harris v. Rickett 684 
 
 Hai-ris v. Eyding 138 
 
 Harris v. Saunders 1445, 1457 
 
 Harris v. Thompson 133 
 
 Harris v. Tippett 1209, 1212 
 
 Harris v. Wilson 634 
 
 Harrison's case 345 
 
 Harrison v. Barton 168, 1000 
 Harrison v. Blades 423, 424, 1533 
 Harrison v. Corp. of Southampton 180, 
 377, 1402, 1435 
 
 
 PAGE 
 
 Harrison v. Creswick 
 
 104 
 
 Harrison v. Douglas 
 
 696 
 
 Harrison v. Elvin 
 
 890 
 
 Harrison v. Fane 
 
 55, 66 
 
 Harrison v. Gordon 
 
 1212 
 
 Harrison v. Heathorn 
 
 704 
 
 Harrison v. Hyde 
 
 1018 
 
 Harrison v. Luke 
 
 286 
 
 Harrison v. Rowan 
 
 1206 
 
 Harrison v. Rowley 
 
 175 
 
 Harrison v. Southcote 
 
 1225 
 
 Harrison v. Taylor 
 
 54 
 
 Harrison v. Turner 
 
 616 
 
 Harrison v. Vallance 
 
 636, 661 
 
 Harrison v. Williams 
 
 1261 
 
 Harrison ■». Wright 
 
 701, 709 
 
 Harrison, ex parte 
 
 1467 
 
 Harrod v. Harrod 
 
 180, 1155 
 
 Harrold v. Whitaker 
 
 280 
 
 Harry v. Broad 
 
 24 
 
 Hart V. Alexander 
 
 1391, 1392 
 
 Hart V. Bush 
 
 880 
 
 Hart V. Deamer 
 
 1400 
 
 Hart V. Frontino, etc., Gold Min. Co. 
 
 706 
 
 Hart V. Hart 161, 388, 392 
 
 Hart V. Horn 637 
 
 Hart V. Nash 909 
 
 Hart V. Newman 674 
 Hart V. Prendergast 902, 903, 905, 906 
 
 Hart ?). Sattley 879 
 
 Hart V. Williams 593 
 
 Hart V. Windsor 287, 982, 983 
 
 Harter v. Harter 171 
 
 Hartford v. Palmer 1165 
 
 Hartford v. Power 810 
 
 Hartleys Cook 1482 
 
 Hartley v. Hindmarsh 1433 
 
 Hartley v. Wharton 858, 904 
 
 Hartley v. Wilkinson 958 
 
 Hartopp V. Hartopp 165 
 
 Hartshorne v. Watson 1168 
 
 Harty v. Davis 915 
 
 Harvey v. Clayton 766 
 
 Harvey v. Divers 1043 
 
 Harvey v. Grabhara 957 
 
 Harvey v. Mitchell 35, 354, 397 
 
 Harvey v. Morgan 401 
 
 Harvey v. Towers 337 
 
 Harvey's case 760 
 
 Harwood v. Goodright 38 
 
 Harwood v. Keys 636, 665 
 
 Harwood v. Sims 527, 537 
 
 Hasleham v. Young 193 
 
 Haslock V. Fergussou 914 
 
 Hasluck V. Pedley 169 
 
 Hassall v. Cole 233 
 
 Hassard v. Smith 204, 338, 1400 
 
 Hastie v. Hastie 1561 
 
 Hastilow V. Stohie 170 
 
 Hastings Peer. 553, 565, 558 
 
 Haswell, The 222 
 
 Hatch V. Dennis 661 
 
 Hatch V. Hatch 1523 
 
TABLE OP CASES CITED. 
 
 liii 
 
 PAGE 
 
 Hatch V. Seai'les 1527 
 Hathaway V. Barrow 1400,1408,1416 
 
 Hathaway v. Haskell 632 
 
 Hathom k King 1190 
 
 Hatton V. Eoyle 193 
 
 Havelook v. Rockwood 1446 
 
 Hawarden v. Dunlop 1324 
 
 Hawes v. Armstrong 854 
 
 Hawes v. Forster 380, 382 
 
 Hawes v. 'Watsoii 710 
 
 Hawk V. Freund 651 
 
 Hawkes v. Baker 1165 
 
 Hawkes v. Kennehec 29 
 
 Hawkes v. Salter 42 
 
 Hawkesworth v. Showier 1146 
 
 Hawkins v. Carr 462 
 
 Hawkins v. Gathercole 778 
 
 Hawkins v. Howard 773 
 
 Hawkins v. Lusoombe 636 
 
 Hawkins v. Warre 366, 369 
 
 Hayden v. Madison 578 
 
 Haydon ';. Williams 902, 906 
 
 Hayes, Re 892 
 
 Hayes v. Dexter 179 
 
 Hayes v. Seaver 658 
 
 Haylook v. Sparke 617, 1473 
 
 Hayne v. Maltby 110, 112 
 
 Haynes v. Birks 42 
 
 Haynes v. Haynes 122 
 
 Haynes v. Hayton 617 
 
 Haynes v. Hill 892 
 
 Hayselden v. Staff 286, 287 
 
 Hayslep v. Gymer 683 
 
 Hayter v. Tucker 872 
 
 Hayward v. Hayward 1077 
 
 Hayward v. Stephens 1308 
 Hazeldine v. Grove 41, 42, 52, 89, 293 
 
 Head v. Baldry 160 
 
 Headlam v. Hedley 136 
 
 Heald v. Keuworthy 194 
 
 Healey v. Thatcher 665 
 
 Healey v. Young 449 
 
 Healy «. Healy 1014 
 
 Healy v. Thome 147 
 Heane v. Rogers 684, 686, 706 
 
 Heap V. Harris Errata 
 
 Heard v. Pilley 926 
 
 Heam, Re 887 
 
 Heam v. Tomlin 288 
 
 Hearne v. Stowell 62 
 
 Heath's case 490 
 
 Heath v. Brewer 293 
 
 Heath 'W. Crealock 788 
 
 Heathcote's divorce 23, 1480 
 Hebblethwaite v. Hebblethwaite 1139 
 
 Hedges v. Tagg 326 
 
 Hedley v. Bainbridge 193 
 
 Heenan v. Clements 662 
 
 HefReld v. Meadows 1000 
 
 Hellings, Re 887 
 
 Helmsley v. Loader 252 
 
 Helps V. Clayton 57 
 
 Helsham u. Blackwood 1416 
 
 Helyear v. Hawke 514 
 
 PAGE 
 
 Hemming v. Blanton 90 
 
 Hemming v. Maddick 1216 
 
 Hemming v. Parry 222, 232 
 
 Heriimings v. Gasson 314 
 
 Hemphill v. M 'Kenna 1408 
 
 Hempston v. Humphreys 1066 
 Henderson v. Australian Royal Mail 
 
 Steam Navig. Co. 822, 826 
 
 Henderson v. Barnewell 380 
 
 Henderson v. Broomliead 1114 
 
 Henderson v. Henderson 1425, 1445, 
 1449, 1457, 1458, 1460 
 
 Henderson v. Squire 984 
 
 Henfree v. Bromley 1522 
 
 Henfrey v. Henfrey 894 
 
 Henkin v. Gerss 799 
 
 Henley «. Soper 1457 
 
 Henman w. Dickinson 1150, 1513 
 
 Henman v. Lester 374, 1232 
 
 Hennell v. Lyon 1289 
 
 Henry v. Goldney 1415 
 
 Henry v. Lee 1183 
 
 Henry v. Leigh 397, 1326 
 
 Henry v. Risk 972 
 
 Henry v. Marq. of Westmeath 365 
 
 Henshaw v. Pleasance 1401 
 
 Henwood v. Oliver 55 
 
 Hepworth v. Hepworth 850 
 
 Herbert v. Ashburner 1257 
 
 Herbert v. Herbert 892 
 
 Herbert v. Eae 161 
 
 Herbert v. Sayer 848 
 
 Herbert v. Tuckal 546, 552 
 
 Hereford, Bp. of, v. T— n 94 
 
 Hermann v. Seneschal 292, 293 
 
 Herries Peer. 217 
 Herring v. Clobery 766, 768, 776 
 
 Herschfeld v. Clarke 465 
 
 Hervey v. Hervey 495, 558 
 
 Heseltine v. Siggers 873 
 
 Heslop V. Chapman 40 
 
 Heston v. St. Bride 1444 
 
 Hetherington v. Kemp 191 
 
 Heugh V. Garrett 1494 
 
 Hewitt V. Piggott 622, 680 
 
 Hewlett V. Cock 662, 566 
 
 Hewlins v. Shippam 817 
 
 Hewson v. Brown 1288 
 
 Hext V. Gill 138 
 
 Hey V. Moorhouse 368 
 
 Heyes v. Hindle 795 
 
 Heyman v. Flewker 140 
 
 Heyman v. Neale 380 
 
 Heymann v. R. 103 
 
 Heysham v. Forster 1320 
 
 Heywood v. Pickering 44 
 
 Heyworth v. Knight 381 
 
 Hibberd v. Knight 411, 773 
 
 Hibbert v. Barton 931, 932 
 Hibblewhite 1). M'Morine 871,872,1624, 
 
 1628 
 
 Hibbs V. Ross 215, 1482 
 
 Hickey, In re 187 
 
 Hickey v. Burt 625 
 
Uv 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Hiokey v. Campion ' 1137 
 
 Hickey v. Hayter 720 
 
 Hickman v. Haynea 856 
 
 Hickman v. Machin 119, 287 
 
 Hickman v. Upsall 207 
 
 Hicks, Re 893 
 
 Hicks V. D. of Beaufort 675 
 
 Hicks V. SalUtt 943, 1004 
 
 Hickton v. Antrobus 188 
 
 Hide, Ee 846 
 
 Hide V. Tliornborough 139 
 
 Higgins V. Hopkins 705 
 
 Higgins V. Scott 96 
 
 Higgins V. Senior 963, 964 
 
 Higgins' Trusts, Re 688 
 
 Higginson v. Clowes 953 
 
 Higginson v. Simpson 799 
 
 Higgs V. Dixon 1530 
 
 Higgs I). Maynard 196, 
 
 Higham v. Eabett 262 
 
 Higham v. Eidgway 568, 569, 572, 573, 
 574, 577 
 Highfield v. Peake 1219, 1286, 1289, 
 
 1316 
 Highland Tump. Co. v. McKean 1484 
 Hiliard v. Phaley 635 
 
 Hill, Re 888, 892 
 
 Hill V. Campbell 464, 1492 
 
 Hill V. Coombe 1205 
 
 Hill V. Dolt 1032 
 
 Hill V. Manchester Waterw. Co, 110, 
 
 112, 113 
 Hill V. Packard 1293 
 
 Hill 1). Philp 1492, 1497 
 
 Hill V. Potts 174 
 
 Hill V. Ratlev 174 
 
 Hill V. Salt 234, 239 
 
 Hill V. Thompson 67 
 
 Hillary v. Waller 150 
 
 Hills V. Evans 67, 68 
 
 Hills V. Laming 113 
 
 Hills V. London Gas Co. 67, 58 
 
 Hills V. "Wates 462 
 
 Hillyard v. Grantham 1416 
 
 Hilton V. Fairclough 42 
 
 Hilton V. Geraud 871 
 
 Hindekoper v. Cotton 794 
 
 Hindmarsh, Re 903 
 
 Hindmarsh v. Charlton 883, 890 
 
 Hindos. China & Japan, Bk. of, v. Smith 
 
 1620 
 Hindson v. Kersey 1639 
 
 Hindustan, Bk. of, Re 1078 
 
 Hinton v. Heather 40 
 
 Hirschfield v. Smith 42 
 
 Hirst V. Hannah 939 
 
 Hitch V. "Wells 886 
 
 Hitohin-i). Campbell 1419, 1421, 1424, 
 
 1442 
 Hitohin v. Groom 1018 
 
 Hitoljings v. Thompson 121 
 
 Hitchins v, Eardley 35, 641 
 
 Hitchins v. Hitchins 461 
 
 Head V. Grace 1000 
 
 PAGK 
 
 Hoar V. Mill 263 
 
 Hoare v. Coryton 177, 639 
 
 Hoare v. Graham 961 
 
 Hoare v. Johnstone 634 
 
 Hobbs V. Knight 897, 899 
 
 Hobbs V. Henning 1452 
 
 Hobhouse v. Hamilton 1379 
 
 Hobson V. Parker 1259. 
 
 Hobson V. Thellusson 819 
 
 Hoby V. Roebuck 870i 
 
 Hockin v. Cooke 25, 972 
 
 Hodenpyl v. Vingerhoed 511 
 
 Hodgeus V. Graham 906 
 
 Hodges V. Ancrum 1205 
 
 Hodges V. Bennett 809 
 
 Hodges V, Cobb 451 
 
 Hodges V. Holder 349 
 
 Hodgkinson u Fletcher 144, 
 
 Hodgkinson v. Kelly 190 
 
 Hodgson ■». Clarke 1014 
 
 Hodgson V. Davies 973 
 
 Hodgson v. De Beauchesne 216, 217 
 
 Hodgson V. Hutchenson 703, 867 
 
 Hodgson V. Johnson 870 
 
 Hodgson V. Le Bret 878 
 
 Hodgson V. Merest 636 
 
 Hodgson V. Scarlett 134 
 
 Hodgson's case 317 
 
 Hodnett v. Foi-mau 1537 
 
 HodsoU V. Taylor 463 
 Hodson v. Mid. Gt. W. Ry. Co. 1560. 
 
 Hoe V. Nathrop 1325, 1335 
 
 Hoe V. Nelthorpe 1325 
 Hoey V. Dubl. & Belf. Junct. Ry. Co. 
 
 988 
 
 Huffman v. Smith 770 
 
 Hogg V. Garrett 615 
 
 Hogg V. Skeen 837 
 Hoghton V. Hoghton 165, 649, 665, 
 
 Holbard v. Stephens 366 
 
 Holbeck v. Holbeck 888. 
 
 Holbrook v. TiiTcU 843 
 
 Holcombe v. Hewson 298 
 
 Holcroft V. Barber 185 
 
 Holcroft, Lady, o. Smith 1538 
 
 Holcroft's case 1431 
 
 Holden, Re 1091 
 
 Holden v. Ballantyne 239 
 
 Holden v. Holden 1032 
 
 Holden v. King 1356 
 
 Holder v. Coates 137 
 
 Holder i). Soulby 195 
 
 Holdfast V. Dowsing 1639 
 
 Holding V. Elliott 673, 963 
 
 Holding V. Pigott 991 
 
 Holdsworth v. Davenport 871 
 
 Holford V. Bailey 135 
 
 Holgate, Re 886 
 
 Holgate V. Slight 930, 
 
 Holiday v. Pitt 1115 
 
 HoU V. Griffin 710 
 
 Holland v. Reeves 622, 1187 
 
 Holliday v. Atkinson 160 
 
 HoUingham v. Head 298, 311 
 
TABLE OP CASES CITED. 
 
 1y 
 
 PARE 
 
 HoUis V. Goldfinch 304 
 HoUoway v. Rakes 582 
 Holman v. Burrow 24, 27 
 Holmes v. Baddeley 777 
 Holmes v. Bellingham 136 
 Holmes v. Clarke 988 
 Holmes v. Clifton 715 
 Holmes v. Hoskins 877, 878 
 Holmes v. Maekrell 860, 904 
 Holmes v. Mitchell 855, 862 
 Holmes v. Remsen 141 6 
 Holmes v. Staines 675 
 Holmes v. Worthington 988 
 Holt V. Jesse 657 
 Holt V. Miers 402, 1310 
 Holt V. Squire 648 
 Homan v. Thompson 350 
 Home V. Bentinck 793, 797 
 Homer v. Wallis 1550 
 Homersham v. Wolverhampton Water- 
 works Co. 823, 826 
 Honiball v. Bloomer 1364 
 Hood V. Ld. Barrington 856, 1324 
 Hood V. Lady Beauchamp 549, 553 
 Hood V. Reeve 639 
 Hooper v. Gumm 774, 775 
 Hooper v. Stephens 909 
 Hopcraft v. Keys 119 
 Hope V. Beadon 404 
 Hope V. Liddell 410, 411 
 Hopewell v. De Pinna 206 
 Hopkins v. Crowe 293 
 Hopkins v. Grazebrook 981 
 Hopkins v. Logan 512, 910 
 Hopkins v. Ware 43 
 Hopper V. Warburton 241 
 Hopwood V. Hopwood 1024 
 Horn V. Swinford 1117 
 Horn V. Thornborough 52, 293 
 Home V. Hough 464 
 Home V. Mackenzie 1182 
 Home V. Smith 1044, 1066 
 Homer v. Horner 1021 
 Hornsby v. Eobson 188 
 Horrocks v. Metrop. Ey. Co. 1401 
 Horsey v. Graham 870 
 Horsfall v. Hey 876 
 Horsfall v. Hodges 858 
 Horsford, Ee 898, 900 
 Horsley, Re 1297 
 Horton v. M'Murtry 251 
 Horton v. Westminster Improvement 
 Comrs. 110, 111, 113 
 Horwood V. Griifith 997, 1004 
 Hotson V. Browne 949 
 Houghton, ex parte 850 
 Houghton V. Koenig 384 
 Houlden v. Smith 1395 
 Houlditch V. M. of Donegal 1445, 1448, 
 1451, 1458, 1461 
 Houliston V. Smyth 177, 498, 1312 
 Houseman v. Roberts 399 
 How V. Hal] 370, 406, 408 
 Howard Re, ex p. Teunant Errata 
 
 Howard v. Canfield 
 
 1185 
 
 Howard v. Ducane 
 
 5 
 
 Howard v. Hudson 
 
 701, 715 
 
 Howard v. Mitchell 
 
 108 
 
 Howard v. Newton 
 
 307 
 
 Howard v. Peete 
 
 260 
 
 Howard v. Shaw 
 
 288 
 
 Howard v. Sheward 
 
 298, 514 
 
 Howard v. Smith 
 
 372 
 
 Howard v. Williams 
 
 401 
 
 Howard v. Wright 
 
 952 
 
 Howcutt V. Bouser 
 
 917 
 
 Howe V. Hall 
 
 875 
 
 Howe V. Palmer 
 
 877 
 
 Howe V. Scarrott 
 
 119 
 
 Howell, Ee 
 
 887 
 
 Howell V. Lock 
 
 1168 
 
 Howells V. Landore Steel Co 
 
 988 
 
 Howes V. Barber 
 
 1043 
 
 Howkins v. Baldwin 
 
 448 
 
 Howkins v. Bennet 
 
 937 
 
 Hewlett V. Tarte 
 
 1421 
 
 Hoyle V. Ld. Comwallis 
 
 24 
 
 Hubbard v. Alexander 
 
 1023 
 
 Hubbard v. Johnstone 
 
 38 
 
 Hubbard v. Lees 
 
 552, 881 
 
 Hubbart v. Phillips 
 
 1411 
 
 Huber v. Steiner 
 
 65 
 
 Hubert v. Moreau 
 
 860 
 
 Hubert v. Treherne 
 
 860 
 
 Hubly V. Vanhome 
 
 1656 
 
 Huckman v. Firnie 
 
 333, 353 
 
 Huckvale, Re 
 
 887 
 
 Hudson V. Guestier 
 
 1453 
 
 Hudson V. Parker 883, 884, 885 
 
 Hudson V. Revett 
 
 1526, 1528 
 
 Hudson V. Tabor 
 
 522 
 
 Huet V. Le Mesurier 
 
 1328 
 
 Hufiell V. Armitstead 
 
 46 
 
 Huggins V. Ward 
 
 343, 1281 
 
 Hughes V. Biddulph 
 
 777 
 
 Hughes V. Blake 
 
 1443 
 
 Hughes V. Buckland 
 
 41, 52, 293 
 
 Hughes V. Budd 
 
 399, 402 
 
 Hughes V. Metrop. Ry. Co. 
 
 709 
 
 Hughes V. Morris 
 
 832 
 
 Hughes V. Parker 
 
 252 
 
 Hughes V. Parramore 
 
 902, 909 
 
 Hughes V. Rogers 
 
 1653 
 
 Hughes' case 
 
 358 
 
 Huguenin v. Baseley 
 
 165 
 
 Hull V. Blake 
 
 1416, 1441 
 
 Hull, Mayor of, i?. Horner 
 
 145, 146 
 
 Humble v. Hunt 
 
 1330 
 
 Humble v. Hunter 
 
 964 
 
 Humble v. Mitchell 
 
 871, 872 
 
 Hume V. Bm-ton 
 
 1400 
 
 Hume V. Scott 
 
 1239 
 
 Hnmfrey v. Dale 
 
 976 
 
 Humphrey v. St. Leger 
 
 401 
 
 Humphreys v. Budd 
 
 27 
 
 Humphreys v. Jenkinson 
 
 938 
 
 Humphreys v. Jones 
 
 903 
 
 Humphries v. Brogden 
 
 138, 139 
 
Ivi 
 
 TABLK OF CASES CITED. 
 
 PAGE 
 
 Humphrys, ex parte 1254 
 
 Hungate v. Gascoyne 552, 553, 554 
 
 Hungerford v. Beecher 113 
 
 Hunt V. Adams 853, 946, 961, 963, 
 
 1518 
 
 Hunt V. Anderson 1506 
 
 Hunt V. Goodlake 62 
 
 Hunt V. Hecht 880, 881 
 
 Hunt V. Hewitt 1495, 1496 
 
 Hunt V. Hort 965 
 
 Hunt V. Hunt 889 
 
 Hunt V. LiTermore 958 
 
 Hunt V. Massey 176 
 
 Hunt V. Peake 139 
 
 Hunt V. Rousmanier 951 
 
 Hunt V. Tulk 1020 
 
 Hunt V. Wise 654 
 
 Hunter, The 124, 131 
 
 Hunter v. Atkins 165 
 
 Hunter v. Caldwell 51 
 
 Hunter v. Emmanuel 235 
 
 Hunter v. Leathley 410 
 
 Hunter v. Neck 28 
 
 Hunter v. Parker 827, 832 
 
 Hunter v. Stewart 1418, ;1424 
 
 Hunter v. "Walters 707 
 
 Huntingdon Peer. 553, 558 
 
 Huntingford ». Massey 313 
 
 Huntley i>. Donovan 1327 
 
 Huntley Peer. 553 
 
 Hurd V. Moring 787 
 
 Hurpurshad v. Sheo Dyal 1158 
 
 Hurst 1!. Beach 1023, 1027 
 
 Hurst's case 1115 
 
 Hussey v. Crickett 799 
 
 Hutcheon v, Manniugton 12 
 
 Hutchins v. Denziloe 810 
 
 Hutchins v. Scott 1018, 1518, 1523 
 
 Hutchinson v. Bernard 473 
 
 Hutchinson v. Glover 418, 1498, 1501 
 
 Hutchinson v. Tatham 976 
 
 Hutchinson v. The York, Newcastle, and 
 
 Berwick Rail. Co. 988 
 
 Hutchison v. Bowker 58 
 
 Huthwaite v. Phaire 1436 
 
 Hutt, ex parte 1259, 1265 
 
 Hutt V. MorreU 688 
 
 Hutton, Re 208 
 
 Hutton V. Bright 705 
 
 Hutton V. Bossiter 703, 720 
 
 Hutton V. UpfiU 705 
 
 Hutton V. "Ward 407 
 
 Hutton V. "Warren 206, 976, 977, 991, 
 
 Hux, re 
 
 1538 
 
 Huxham v. Smith 
 
 1416 
 
 Hyckman v. Shotbolt 
 
 708 
 
 Hyde v. Johnson 
 
 925 
 
 Hyde v. Palmer 
 
 504 
 
 Hyde v. Watts 
 
 676 
 
 Hynde's case 
 
 1443 
 
 Ibbott 1). Bell 
 
 900 
 
 Illingworth v. Leigh 
 
 661 
 
 llott V. Geuge 
 
 885 
 
 PAGE 
 
 Imlay v. Rogers 794 
 Imperial Bank v. Lond. & St. Cath. 
 
 Dock Co. 6, 976 
 
 Imperial Gas Co. v. Clarke 1260 
 Imper. Land Co. of Marseilles Ifrrata 
 
 Imrie v. Castrique 1401 
 
 Inca, The 214 
 
 Incledon v. Berry 1392 
 
 Ingalls V. Bills 980 
 
 Ingilby v. Shafto 1494 
 
 Inglesant v. Inglesant 885 
 Inglis V. 6r. North Rail. Co. 1485, 1486 
 
 Inglis V. Spence 670, 672 
 
 Ingraham v. Bockins 597 
 
 Ingram v. Lea 370 
 
 Ingram v. Wyatt 170 
 
 Inman v. Foster 329 
 
 Inman v. Jenkins 465 
 
 Inman v. Stamp 870 
 
 Innell v. Newman 625 
 
 Innis V, Campbell 207 
 
 lona, The 214 
 
 Ipswich case 637 
 Ipswich Dock Cottimiss. v. St. Peter, 
 
 Ipswich 136 
 
 Ireland v. Powell 622, 526 
 Irish Society v. Bp. of Derry 1400, 1558 
 
 Irons V. Smallpiece 819 
 
 Irving V. Greenwood 327 
 
 Irving V. "Veitoh 911 
 
 Irwin V. Callwell 1471 
 
 Isaac V. Farrer 284 
 
 Isaac V. Gompertz 547 
 
 Isabella, The 962 
 
 Isquierdo v. Forbes 1460 
 
 Israel v. Argent 177 
 
 Israel v. Benjamin 696 
 
 Israel v. Clark 717 
 
 Ivat V. Finch 662 
 
 Ivey V. Young 237 
 
 Ivy, Lady, and Neal's case 1488 
 Jack v. Kiernan 1288, 1289, 1290, 1293 
 
 Jackson, Re 872 
 
 Jackson v. Adams 314 
 
 Jackson v. AUaway 249 
 
 Jackson v. Allen 1512 
 
 Jackson v. Bailey 472 
 
 Jackson v. Bard 580, 660 
 
 Jackson v. Blanshan 105, 566 
 
 Jackson v. Browner 540 
 
 Jackson v. Burnham 848 
 
 Jackson v. Carrington 233 
 
 Jackson v. Christman 1185 
 
 Jackson v. Cooley 652 
 
 Jackson v. French 774, 775 
 
 Jackson v. Frier 393 
 
 Jackson v. Gridley 1157 
 
 Jackson v. Hesketh 349 
 
 Jackson v. Hill 715 
 
 Jackson v. Irvin 203 
 
 Jackson v. Jackson 1169, 1470 
 
 Jackson v. Knitfen 607, 612 
 
 Jackson v. Lamb 566 
 
 Jackson v. Lowe 857 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Jackson v. Luquere 
 Jackson v. M'Call 
 Jackson v. Malin 
 Jackson v. Marsh 
 Jackson v. Matsdorf 
 
 PAGE 
 
 566 
 
 148 
 
 1522 
 
 1019 
 
 110 
 
 Jackson v. Metrop. Ry. Co. 50, Errata 
 
 Jackson v. Miller 1487 
 
 Jackson v. Oglander 858 
 
 Jackson v. Pesked 103 
 
 Jackson v. Seagar 1034, 1067 
 
 Jackson v. Thomason 1199 
 
 Jackson v. "Waldron 1545 
 
 Jackson v. Williamson 795 
 
 Jackson v. Winchester 417 
 
 Jackson v. Wood 1394 
 
 Jackson v. WooUey 629 
 
 Jackson v. Wright 110 
 
 Jacob V. Hart 1517 
 Jacob V. Hungate 336, 1036, 1066 
 
 Jacob V. Lee 400 
 Jacob V. Lindsay 376, 623, 1183, 1184 
 
 Jacobs, Re 1067 
 
 Jacobs V. Humphrey 637 
 
 Jacobs V. Jacobs 1119 
 
 Jacobs V. Layborn 1168, 1169 
 
 Jacobs V. Seward 237 
 
 Jacobs V. Tarleton 352 
 
 Jaffi). Oriel 223 
 
 Jaggers v. Binnings 631 
 
 James, The 1424 
 
 James v. Biou 673, 674 
 
 James v. Cohen 901 
 
 James v. Hatfield 626 
 
 James v. Salter 90 
 
 James v. Williams 854 
 
 Jameson v. Drinkald 1194 
 
 Jameson v. Leitch 1310, 1416 
 
 Jameson v. Stein 867 
 
 Jameson v. Swinton 44 
 
 Janaway, Re 886 
 
 J' Anson v. Stuart 320 
 
 Jardine v. Sheridan 649, 665 
 
 Jarmain v. Hooper 202 
 
 Jarrett v. Leonard 638 
 
 Jayne v. Price 141 
 
 Jeakes v. White 870 
 
 Jeans v. Cooke 850 
 
 Jeans v. Wheedon 376, 474 
 
 Jeffcott V. North Brit. Oil Co. 856 
 
 Jefferson Ins. Co. v. Cotheal 1193 
 
 Jeffery v. Walton 947 
 
 Jefferys v. Boosey 928 
 Jeffries v. Great Western Rail Co. 142 
 
 Jeffries v. Williams 138, 139 
 
 Jenkins v. Betham 989 
 
 Jenkins v. Blizard 1391 
 Jenkins v. Bushby 766, 774, 775, 1494 
 
 Jenkins v. Davies 691 
 
 Jenkins v. Gaisford 891 
 
 Jenkins v. Harvey 1006 
 
 Jenkins v. Heycock 979 
 
 Jenkins v. Morris 192 
 
 Jenkins v. Phillips 231, 239 
 
 Jenkins v. Reynolds 853 
 
 PAGE 
 
 375 
 201 
 1486 
 920 
 €84 
 104 
 409 
 104 
 540 
 699 
 710 
 175 
 301 
 1118 
 199 
 930 
 982 
 930, 931 
 1421 
 980 
 945 
 1525 
 892 
 145 
 204 
 787, 1547 
 859, 860, 880 
 790, 1467 
 1487 
 625 
 413 
 540, 643 
 173, 474, 949 
 201 
 Johnson v. Dk. of Marlborough 1514 
 Johnson v. Mason 1532 
 
 Johnson v. Reid 160 
 
 Johnson v. St. Peter, Hereford 204 
 
 Johnson v. Stear 991 
 
 Johnson v. Ward 641, 1331 
 
 Johnson v. Warwick 111 
 
 Johnston v. Caulkins 327 
 
 Johnston v. Clinton 1243 
 
 Johnston v. Summer 199, 200 
 
 Johnston v. Usbome 971, 994 
 
 Johnstone v. Huddleston 24, 844 
 
 Johnstone v. Sutton 134 
 
 Joint V. Mortyn 854 
 
 JoUey V. Taylor 370, 407 
 
 Jolly V. Rees 199 
 
 Jolly V. Young 9!i9 
 
 Joly V. Swift 1409, 1441 
 
 Jones, Re 885, 889, Srrata 
 
 Jones & Beaver's case 1428 
 
 Jones V. Boland 54 
 
 Jones V. Brewer 423, 1533 
 
 Jones V. Carrington 661 
 
 Jones V. Cowley 222 
 
 Jones V. Edwards 400 
 
 Jones V. Flint 873, 874 
 
 Jones V. Fort 35 
 
 Jones V. Foxall 665 
 
 Jones V. Frost 113 
 
 Jones V. Gales' Exors. 22 
 
 Jenner v. Joliffe 
 Jenner v. Morris 
 Jennings, Re 
 Jennings v. Johnson 
 Jennings v. Whittaker 
 Jessel V. Bath 
 Jesus Coll. V. Gibbs 
 Jewell V. Christie 
 JeweU V. Jewell 
 Jewell V. Wyatt 
 Jewett V. Torry 
 Jewis V. Lawrence 
 Jewison v. Dyson 
 Jewitt, Re 
 
 Jewsbury v. Newbold 
 Jeyesr. Booth 
 Jinks V. Edwards 
 Joel V. Dicker 
 John & Mary, The 
 John V. Bacon 
 Johnson v. Appleby 
 Johnson v. Baker 
 Johnson v. Ball 
 Johnson ». Barnes 
 Johnson v. Blane 
 Johnson v. Daverne 
 J ohnson v. Dodgson 
 Jolmson V. Durant 
 Johnson v. Hocker 
 Johnson v. Holdsworth 
 Johnson v. Kershaw 
 Johnson v. Lawson 
 Johnson v. Lyford 
 Johnson v. Manning 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Jones V. Galway Town Commiss. 163 
 
 Jones V. Gooday 293 
 
 Jones V. Goodrich 788, 1324 
 
 Jones V. Harris 936 
 
 Jones V. Howell 366 
 
 Jones V. Hutchinson 23.4, 239 
 
 Jones V. Jones 424, 1525, 1541, 1544 
 
 Jones V. Just 986 
 
 Jones V. Littledale 963 
 
 Jones V. Mackie 694 
 
 Jones V. Marshall 1119 
 
 Jones V. Mills 46 
 
 Jones V. Morgan 253 
 
 Jones «. Mdrrell 683 
 
 Jones V. Newman 1008 
 
 Jones •». Ogle 169 
 
 Jones V. Peppercome 6 
 
 Jones V. Perry 494 
 
 Jones V. Pratt 458 
 
 Jones V. Pugh 768 
 
 Jones V. Randall 1311, 1313, 1388 
 
 Jones V. Ryder 512, 910 
 
 Jones V. Stevens 324, 329 
 
 Jones V. Stroud 1180, 1181 
 
 Jones V. Tarleton 396 
 
 Jones 1). Turberville 634 
 
 Jones i>. Tumour 712 
 Jones V. Yietoria Graving Dock Co. 
 
 857, 859 
 
 Jones V. Waller 205, 563 
 
 Jones V. White 1400, 1416 
 
 Jones 11. Williams 301, 302 
 
 Jopp V. Wood 216 
 
 Jordaine v. Lashhrooke 1130 
 
 Jordan v. Lewis 776, 1256 
 
 Jorden v. Money 702, 703, 806 
 
 Jory V. Orchard 405 
 
 Josling V. Kingsford 985 
 
 Jourdain ii. Palmer 464 
 
 Journu V. Bourdieu 969 
 
 Judd V. Green 1 66 
 
 Judge V. Berkeley 316 
 
 Judge V. Selmes 293 
 Juggomohun Ghose v. Manickchund 992 
 
 Justice u Elstob 372, 399, 1337 
 
 Justice V. Gosling 1416 
 
 Justice V. Mersey Steel Co. 1561 
 
 Kahl v. Jansen 514 
 
 Kaiu V. Farrer Errata 
 
 Kain v. Old 949 
 
 Kaines v. Knightly 961 
 
 Karla, The 1042 
 
 Kavanaghu Cuthhert 989 
 
 Kay u Brookman 421, 1540 
 
 Kay V. Crook 867 
 
 Kay V. Duchesse de Vienne 495 
 
 Keableu Payne 1400,1417 
 
 Kealy v. Tenant 877 
 
 Keane v. Smallbone 1517 
 
 Kearney v. King 25, 27 
 Kearney ■». Lond. & Brigh. Ry, Co. 196 
 
 Keeling v. Ball 1538 
 
 Keen v. Batshore 1468 
 
 Keen r. Keen 173 
 
 Keen v. Priest 
 Keig^vin v. Keigwin 
 Keinan v. Boylan 
 Keisselbrack v. Livingstone 
 Keith V. Bun-ows 
 
 PAOE 
 
 680 
 885 
 1287 
 953 
 831 
 
 Kell V. Charmer 967, 999, 1012 
 
 KeU K. Nainby 704 
 
 Keller v. Blood 251 
 KeUington, Vicar of, v. Trin. Coll. 1321 
 
 Kelly V. Barnewall 1120; 
 
 KeUy V. Jackson 767, 783 
 
 Kelly v. Keatinge 886 
 
 Kelly V. Lawrence 708 
 
 Kelly V. Mid. G. W. Ry. Co. 824 
 
 Kelly V. Powlett 1004 
 
 Kelly v. Small 646 
 
 Kelly v. Smith 1243 
 
 Kelly V. Webster 870. 
 
 KelsaU v. Marshall 443, 1462 
 
 Kelsey v. Bush 615 
 
 Kelson v. Kelson 950 
 
 Kemble v. Farren 626 
 
 Kemp V. Derrett 46 
 
 Kemp V. King 411 
 
 Kempland v. Macauley 665 
 
 Kempson ». Boyle 382 
 
 Kempston v. Butler 139. 
 Kempton v. Cross 10, 383, 1324, 1325 
 Kendall v. Lond. & S. W. Ry. Co. 979 
 
 Kennedy v. CassiUis 1460 
 
 Keimedy v. Hilliard 1114 
 
 Kennerly v. Nash 1524 
 
 Kennett v. Milbank 904 
 
 Kenn's case 1402 
 
 Kenna v. Nugent 1420 
 
 Kensington, Ld., v. Bouverie 167 
 
 Kensington v. Inglis 388 
 
 Kent v. Jackson 702 
 
 Kentr. Riley 163 
 
 Kenworthy v. Schofield 853, 927 
 
 Keoghi;. Keogh 1018 
 
 Keogh V. Leonard Errata 
 
 Kepp V. Wiggett 107, 114 
 
 Kerin v. Davoren 59S. 
 
 Kernot v. Pittis 1144 
 
 Kerr v. Shedden 1326 
 
 Kershaw v. Cox 1517 
 
 Kershaw v. Ogden 876, 878 
 
 Kettlewell v. Barstow 1495 
 
 Kevan v. Crawford 1310 
 
 Kevil V. Lynch 881 
 
 Key V. Cotesworth 57 
 
 Key V. Shaw 494, 578 
 
 Keynes D. Dk. of Wellington 1324. 
 
 Keyse v. Powell 144, 
 
 Kibble, ex parte 912 
 Kidderminster, Mayor of, v. Hardwicke 
 
 687 
 
 Kidgill V. Moor 103 
 
 Kidnerr. Keith 1526 
 
 Kidney v. Cockburn 546 
 Kidston v. Emp. Mar. Ins. Co. 553, 970 
 
 Kieran v. Sandars 711 
 
 Kilbce r. Sneyd 681 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Kilgour V. Alexander 
 
 PAGE 
 222 
 
 Kilgour V. Finlysoa 
 
 511 
 
 Kilhefifer v. Herr 
 
 1398 
 
 Killby V. Eochusseu 
 
 233, 675 
 
 Killick, Ee 
 
 884 
 
 Kilvert's Trusts, Ee 
 
 1014 
 
 Kimball v. Morrell 
 
 393 
 
 Kimmel v. Kimmel 
 
 1288, 1240 
 
 Kimpton, Re 
 
 889 
 
 Kimpton v. Loud. & N. West. Bail. Co. 
 1117, 1120 
 
 Kindersley v. Chase 1452 
 
 Kine v. Balfe 866, 875 
 
 Kine v. Beaumont 405 
 
 Kine v. Evershed 293 
 
 King, ex parte 1118 
 
 King, In re 706 
 
 King V. Anderson 165 
 
 King V. Bellord 122 
 
 King V. Chamberlain 293 
 
 King V. Clerk 8 
 
 King V. Cole 372 
 
 King V. Corke 228 
 
 King V. Foxwell 216 
 
 King V. Francis 330 
 
 King V. George 1027 
 
 King V. Hoare 1415 
 
 King V. King 1224, 1225 
 
 King 11. Norman 689, 1393 
 
 King V. Paddock 207 
 
 Kingi!. Walker 261 
 
 King V. Waring 325 
 
 King V. Zimmerman 395 
 
 King of Two Sicilies v. Willcox 1229, 
 
 1234 
 King's CoU. Hospital v. Wheildon 997 
 
 Kingham v. Eobins 694, 695 
 Kingsford v. Gt. W. Ey. Co. 466, 1503 
 
 Kingsmill v. Millard 140 
 
 Kingston v. Gale 787 
 
 Kingston v. Knibbs 971 
 
 Kingston v. Lesley 1328 
 
 Kingston's, Duchess of, case 770, 1181, 
 
 1182, 1406, 1407, 1409, 1410, 1458 
 
 Kinnersley v. Qrpe 1374, 1411 
 
 Kintvea v. Perston 981 
 
 Kip V. Brigham 1393 
 
 Kippen v. Darley 1024 
 
 Kirby v. Hickson 26 
 
 Kirby v. Simpson 52, 292, 295 
 
 Kirchner v. Venus 190 
 
 Kirk, ex parte 1021 
 
 Kirk V. Eddowes 957, 1024, 1025, 
 
 1027 
 
 Kirkham v, Marter 865 
 
 Kirkland v. Nisbet 58 
 
 Kirkman v. Oxley 329 
 
 Kirkpatrick v. Gowan 985 
 
 Kirkstall Brewery Co. v. Furness Ry. 
 
 Co. 513 
 
 Kirkwood's case 317 
 
 Kirtland v. Pounsett 288 
 
 Kirwan v. Cockburn 1389 
 
 Kirwan v. Gorman 111 
 
 
 PAGE 
 
 Kite and Lane's case 
 
 1439 
 
 Knapp V. Maltby 
 
 1518 
 
 Knapp's case 
 
 731, 734 
 
 KnatchbuU v. Fowle 
 
 1171 
 
 Knight V. Barber 
 
 872 
 
 Knight V. Brown 
 
 264 
 
 Knight V. Campbell 
 
 454 
 
 Knight V. Clements 
 
 1514 
 
 Knight V. Cox 
 
 120 
 
 Knight V. Crockford 
 
 859 
 
 Knight V. Egerton 
 
 698 
 
 Knight V. Hasty 
 
 933 
 
 Knight V. Knight 
 
 1004 
 
 Knight V. Martin 
 
 398, 1535 
 
 Knight V. Moore 
 
 262 
 
 Knight V. M. of Waterford 
 
 576, 577, 
 
 
 778 
 
 Knights V. Wiffen 
 
 710 
 
 Knill V. Hooper 
 
 978 
 
 Knill V. Williams 
 
 1615 
 
 Knobell v. FuUer 
 
 329 
 
 Knowlman v. Bluett 23J 
 
 , 867, 869 
 
 Knox V. Bushell 
 
 201 
 
 Knox V. Ld. Mayo 
 
 1476 
 
 Knox V. Waldoborongh 
 
 1441 
 
 Koebel v. Saunders 
 
 979 
 
 Kopitoff 1/. Wilson 
 
 980 
 
 Roster v. Eeed 
 
 211 
 
 Kraft V. Wickey 
 
 1454 
 
 Krishna Behari Roy v. Brojeswani Chow- 
 
 dranee 1418 
 
 Kronheim v. Johnson Errata, 
 
 Kufh V. Weston 187 
 
 Kyle V. Jeffreys 928 
 
 Lackington v. Athertou 715 
 
 Lacon v. Higgins 1198 
 
 Ladford v. Gretton 103 
 
 Lafone v. Falkland Islands Co. 775 
 
 Laing «. Barclay 773, 1233 
 
 Laing v. Kaine 1536 
 
 Lainson v. Tremere 107, 113 
 
 Lake v. D. of Argyll 705 
 
 Lake v. Billers 618 
 
 Lake v. King 4 
 
 Lakeman v. Mountstephen 863, 864 
 
 Laker v. Hordern 176; 
 
 Lamb v. Orton 207, 1504 
 
 Lambe's case 725 
 
 Lambert, Re 1309 
 
 Lambert v. Norris 843 
 
 Lamey v. Bishop 223 
 
 Lamond v. Davall 286 
 Lamont v. Crook 1066, 1070 
 
 Lamplugh v. Lamplugh 850 
 
 Lampon f. Corle 112, 719 
 Lamprell v. Billericay Union 819, 823, 
 
 826 
 
 Lanauze v. Palmer 405 
 
 Lancaster Canal Co.'s case 871 
 
 Lane v. Bagshaw 449 
 
 Lane v. Burghart 863, 864 
 
 Lane v. Gray 1493 
 
 Lane v. Harrison 1441 
 
 Lane v. Ironmonger 199 
 
Ix 
 
 TABLE OF OASES CITED. 
 
 PARE 
 
 Lane v. Nixon 978 
 
 Lane's ease 9, 28, 29, 161 
 
 Lanfranehi v. Mackenzie 91 
 
 Lang V. Gale 942 
 
 Lang V. Smith 57 
 
 Langdale v. Trimmer 42 
 
 Langdon v. Hulls 405 
 
 Langford v. Selmes 119 
 
 Langford v'. Woods 294 
 
 Langhora v. Allniitt 513, 514 
 
 Langley v. E. of Oxford 645 
 
 Langmead ■». Maple 1418,1441 
 
 Langridge v. Campbell 693 
 
 Langston v. Cotton 1072 
 
 Langton v. Carletou 184 
 
 Langton v. Higgins 878 
 
 La Plata 8 
 
 Lapsley v. Grierson 129, 180 
 
 Lascelles v. Ld. Onslow 140 
 
 Lassence v. Tierney 866 
 
 Lasseur v. Tyrconnel 1455 
 
 Latch v. "Wedlake 511 
 
 Latkow v. Earner 1401 
 
 La Touche v. Hutton 582 
 
 LaveU v. Howell 988 
 
 Layer v. Fielder 703 
 
 Lavie v. Phillips 8 
 Lavies, in re, ex p. Stephens Errata 
 
 Law V. Wilkin 202 
 
 Lawdon v. Lawdon 1179 
 
 Lawes v. Reed 1183 
 
 Lawler r. Linden 47 
 
 Lawless v. Queale 374 
 
 Lawley's, Lady, case 1152 
 
 Lawrence v. Baker 1207 
 
 Lawrence v. Campbell 774 
 
 Lawrence v. Clark 401, 402, 407 
 
 Lawrence v. Hitch 147 
 
 Lawrence v. Houghton 1165 
 
 Ijawrenoe v. Hunt 1398 
 
 Lawrence v. Maule 414 
 
 Lawrence v. Walmsley 962 
 
 Lawrensou v. Butler 861 
 
 Laws V. Band 43 
 
 Lawson v. Carr 8 
 
 Lawson v. Stoddart 1076 
 
 Layboum v. Crisp 623, 532, 533, 1315, 
 
 1316 
 
 Layland v. Stewart 831 
 
 Layer's case 305, 407, 803 
 
 Laythoarp v. Bryant 855, 860, 861 
 
 Lazenbyi). Eawson 720 
 
 Lea V. Wheatley 780 
 
 Leach, Re 886 
 
 Leach v. Buchanan 711 
 
 Leach v. Simpson 863, 752 
 
 Leader v. Barry 495, 1328 
 
 Leafr. Butt 402 
 Leake v. Mq. of Westmeath 1314, 1315 
 
 Leame v. Bray 7 
 
 Learmouth, ex parte 471 
 
 Leary v. Lloyd 1482 
 Leather Cloth Co. v. Hieronimus 
 
 858, 956 
 
 PAGE 
 
 Le Caux v. Eden 1401 
 
 Lechmere v. Fletcher 698, 904, 908, 1415 
 Ledbetter v. Salt 670 
 
 Ledgard v. Thompson 933 
 
 Lee Peer. 1488 
 
 Lee V. Angas 1032 
 
 I^ee V. Birrell 770, 795 
 
 Lee V. Dick 958 
 
 Lee V. Everest 1045 
 
 Lee V. Gansel 1310 
 
 Lee V. Gaskell 870 
 
 Lee V. Griffin 876 
 
 Lee V. Huson 314 
 
 Lee V. Johnstone 156 
 
 Lee V. Lane. & Yorks. Ey. Co. 719, 946 
 Lee V. Meecock 1310 
 
 Lee V. Merest 411 
 
 Lee V. Pain 942, 1010, 102O, 1027 
 
 Lee V. Smith 837 
 
 Lee V. WUmot 907 
 
 Leech v. Bates 886 
 
 Leech v. Schweder 484 
 
 Leeds, D. of, v. Ld. Amherst 90 
 
 Leeds v. Cook 131, 327, 407 
 
 Leeds v. Lancashire 958 
 
 Leeds & ThirskRy. Co. v. Feainley 122 
 Lees V. Martin 604 
 
 Lees V. Whitcomb 853 
 
 Leeson v. Holt 1392 
 
 Lfeete V. Hart 293 
 
 Lofevre v. Lloyd 963 
 
 Lefroy v. Walsh 163 
 
 Jjegatt V. ToUervey 776, 1245, 1256, 
 
 1392 
 Legeyt v. O'Brien 204 
 
 Legge V. Edmonds 123, 635, 799, 800 
 Leggott V. Gt. ]Sr. By. Co. Ill 
 
 Legh «. Hewitt 992 
 
 Leicester, E. of, v. AValter 328 
 
 Leidemann v. Schultz 969 
 
 Leifchild's case 950 
 
 Leigh, Be 1499 
 
 Leigh's Estate, in re, Eowcliffe v. Leigh 
 
 Errata 
 Leigh Peer. 644, 552, 553, 555, 1475 
 Leigh V. Baker 225 
 
 Leigh V. Brooks Errata 
 
 Leigh V. Lloyd 1531 
 
 Leighton v. Leighton 1024, 1322 
 
 Leke's case 254 
 
 Leland B. Murphy . 901,906 
 
 Lemage v. Goodban 895 
 
 Le Marchant's Gardiner's Peer, case 123 
 Le Marchant v. Le Marchant and Rad- 
 cliif 729 
 
 Lemayne v. Stanley 859 
 
 Lemere v. Elliott ] 43 
 
 Lemon v. Dean 1533 
 
 Lenoh v. Lench 721, 723, 851 
 
 Le Neuville v. Nourse 985 
 
 Leonard i). Simpson 688 
 
 Leonard v Taylor 982 
 
 Lepiot V. Browne 202 
 
 Lepping v, Kedgewin 1441 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 Leroux v. Brown 
 
 Leslie v. De la Torre 
 
 Leslie v. Leslie 
 
 Lessee of Leader v. Duggan 
 
 Lessee of Phayre v. Fahy 
 
 Le Strange v. Eowe 
 
 Lethbridge v. Cronk 
 
 Lethulier's case 
 
 Lett V. Randall 
 
 Levey and Robson, Re 
 
 Levinson v. Syer 
 
 Levitt V. Levitt 
 
 Levy V. Hale 
 
 Levy V. Merrill 
 
 Levy V. Pope 
 
 Levy V. Wilson 
 
 Lewes' Trusts 
 
 Lewis, Re 
 
 PAGE 
 
 65, 869 
 961 
 895 
 401 
 54 
 147 
 465 
 970 
 174 
 902, 908 
 931 
 1308 
 715 
 854 
 787 
 252 
 207 
 890, 919 
 Lewis, falsely called H., v. Hayward 201 
 Lewis V. Evans 188 
 
 *Lewis V. Gt. West Ey. Co, 918 
 
 Lewis V. Hartley 1512 
 
 Lewis V. Ld. Kensington 932 
 
 Lewis V. Lewis 890 
 
 Lewis 1). Marshall 36, 969, 992 
 
 Lewis V. Parker 336 
 
 Lewis V. Payn 1520, 1522 
 
 Lewis V. Pennington 783 
 
 Lewis V. Roberts 922 
 
 Lewis V. Sapio 1546 
 
 Lewis V. Simpson 176 
 
 Lexington v. Clark 865 
 
 Ley V. Ballard 1533 
 
 Ley V. Barlow 410, 1501 
 
 Leyfield's case 1520 
 
 Leyland v. Stewart 831 
 
 Leyland v. Tancred 698 
 
 Liberia, Rep. of, v. Imperial Bk. 1503 
 Liberia, Rep. of, v. Roye 1503, 1S05 
 Liebman v. Pooley 358, 476 
 
 Liddell v. Norton 1501 
 
 Lidster v. Borrow 293 
 
 Lightfoot V. Bickley 1455 
 
 Lightfoot V. Cameron 1115 
 
 Lightner v. Wike 414 
 
 Like V. Howe 706 
 
 Lilley v. Elwin 47, 185 
 
 Lillywhite v. Deverenx 55, 879 
 
 Limerick v. Limerick 157, 377 
 
 Lincoln v. Wright S75, 1177 
 
 Lindenau v. Desborough 1193 
 
 Lindenberger v. Beal 187 
 
 Lindgren v. Lindgren 1019 
 
 Lindley v. Girdler 933 
 
 Lindley v. Lacey 947, 948 
 
 Lindo V. Rodney 1401 
 
 Lindon v. Sharp 164 
 
 Lindsay v. Wicklow, E. of 113 
 
 Linnell & Walker v, Gunn 1436 
 
 Linsell v. Bonsor 905 
 
 Lion, The, Owners v. York Town Owners 
 
 214 
 Lipscombe v. Holmes 672, 696 
 
 Lisbon Steam Tramways Co., Re 1078 
 
 
 PAGE 
 
 Lisbume, Ld., v. Davies 
 
 140 
 
 Lisle Peer. 
 
 553 
 
 List, ex parte 
 
 1117 
 
 Lister v. Leather 
 
 54 
 
 Lister v. Perryman 
 
 39 
 
 Lister v. Priestly 
 
 671 
 
 Lister ■;;. Smith 
 
 948 
 
 Litchfield v. Ready 
 
 119, 1412 
 
 Little V. Kirkwood 
 
 1502 
 
 Little V. Larrabee 
 
 796 
 
 Little V. Libby 
 
 580 
 
 Little Lizzie, The 
 
 439 
 
 Little V. Wingfield 
 
 147, 149 
 
 Littlechild v. Banks 
 
 286 
 
 Littler v. Holland 
 
 954, 956 
 
 Liver Alkali Co. v. Johnson 
 
 979 
 
 Liverinore v. Herscliell 
 
 1419 
 
 Liverpool Adelphi Loan Assoc. «, Fair- 
 hurst 706 
 Liverpool Borough Bank v. Eccles 860 
 Liverpool Borough Bank v. Turner 832 
 Llewellyn v. Badeley 1504 
 Llewellyn v. E. of Jersey 857, 962 
 Llewellyn -v. Wiuckworth 311 
 Lloyd V. Fleming 832 
 Lloyd V. Gregory 842 
 Lloyd V. Harvey 1026 
 Lloyd V. Key 449 
 Lloyd V. Maund 58 _ 
 Lloyd «. Mostyn 776* 
 Lloyd V. Passingham 1235 
 Lloyd V. Roberts 886 
 Lloyd V. Sandiland 186 
 Lloyd V. Spillet 849, 850 
 Lloyd V. Waterford & Lim. Ry. Go. 918 
 Lloyd V. Willan ' 642 
 Lobb V. Stanley 858, 859, 860, 904 
 Lock V. Furze 982 
 Lock I). Norborne 1413 
 Locke V. James 900 
 Lockett V. Gary 410, 1494 
 Lockett V. Nicklin 946, 961 
 Lockwood V. Smith 632 
 Lodge V. Phipher 1556 
 Lodge V. Prichard 602, 681 
 Lotfus V. Maw 702 
 Login t). Prin, of Coorg 9 
 Londesborough's, Ld., ease 684 
 Londesborough, Ld., v. Foster 684 
 Lonilouv. Lynn 1484 
 London & Birm. Ry. Qo.'a case 871 
 London & Brighton Ry. Co. v. Fair- 
 clough 161, 1513, 1526 
 London, City of, v. Gierke 622 
 London, City of, v. Perkins 419 
 London, City of, Gas Light & Coke Co. 
 V. Nichols 822 
 London Comm. of Sewers v. Gellatly 1413 
 London Comm. of Sewers v, Glasse 
 
 1494 
 London Dock Co. v. Sinnott 823 
 
 London Gas L. Co. v. Chelsea Ves. 1496 
 London Gas Meter Co., Re, The 1078 
 London, Mayor of, v. Long 1006 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 London k N. W. Ry. Co. v. Durham 918 
 London & N. "W. Ey. Co. ^•. M 'Michael 
 
 1485 
 London & N. W. Ry. Co. v. West 118, 
 
 119 
 Lonergan v. Roy. Ex. Ass. 1042 
 
 Long V. Barrett 313 
 
 Long V. Champion 622 
 
 Long V. Donegan 1561 
 
 Long ». Hitchcock 1216 
 
 Long V. Keightley Errata 
 
 Long V. Lamkiu 1240 
 
 Long's case 728 
 
 Longchamp v. Fish 170 
 
 Longenecker v. Hyde 668 
 
 Longfellow v. Williams 859 
 
 Longworth v. Yelverton 1130 
 
 Loomis V. Green 1419 
 
 Loomis & Jackson v. Loomis 511 
 
 Loomis V. Jackson 1019 
 
 Lopez V. Andrew 135, 147 
 
 Lopez V. Deacon 1501 
 
 Lord V. Colvin 9, 216, 502, 1185, 1186 
 1187, 1204, 1207 
 Lord V. Commiss. for City of Sydney 135 
 Lord V. Lord 1320 
 
 Loring v. Steineman 206 
 
 Lothian v. Henderson 1452, 1453 
 
 Lovat's, Ld., case 1168, 1169 
 
 Lovat Peer. 544, 654, 556 
 
 Lovegrove v. L. B. & S. C. Ry. Co. 987 
 Lovell V. Howell 987 
 
 Loveridge v. Botham 719 
 
 Low's case 794 
 
 Lowe V. Carpenter 91, 144 
 
 Lowe V. Giovett 135 
 
 Lowe V. London & N. W. Rail. Co. 824 
 Lowe V. Peers 104 
 
 Lowe V. Ross 287 
 
 Lowick's case 305 
 
 Loyd v. Freshfield 770, 1185 
 
 Lubbock V. Tribe 395 
 
 Lucas V. Beale 239 
 
 Lucas V. Bristow 976 
 
 Lucas V. De la Cour 626 
 
 Lucas V. Groning 969 
 
 Lucas V. Tarleton 235 
 
 Lucey v. Murphy 932 
 
 Luckie v. Bushby 719 
 
 Lucy V. Mouflet 680 
 
 Luders v. Anstty . 703 
 
 Ludlow, May. of, v. Cliarltnn 819, 820, 
 821, 826, 1290 
 Lufifu Lord 165 
 
 Luke, Re 891 
 
 Lumley v. Gye 450, 451 
 
 Lund V. Tyngsboro. 500, 502 
 
 Lundy v. Reuly 976 
 
 Lunnis v. Row 414, 1170 
 
 LuntlyB. 1115, 1119 
 
 Luscombe v. Steer 1496 
 
 Lush?7. Drase 1019 
 
 Lush V. Russell 251 
 
 Lush's Trusts, Re 704 
 
 PAGE 
 
 Lushington v. Onslow 172 
 Lutscher, in re, ex p. Waddell Errata 
 
 Luttrell V. Reynell 423, 1-^42 
 
 Lyde v. Barnard 913, 927 
 
 Lygon V. Strutt 562 
 Lyle V. Ellwood 180, 495, 1308 
 
 Lyle V. Richards 57, 59 
 
 Lyman v. Lyman 710 
 
 Lynch v. Gierke 616, 1335 
 Lynch v. Lynch 841, 842, 844, 845 
 
 Lynde v. Judd 1293 
 
 Lyne, ex parte 1117 
 
 Lynn, Mayor of, v. Denton 1261 
 
 Lynn v. Robertson 424 
 
 Lyon V. Home 165 
 
 Lyon V. Lyman 1650, 1556 
 
 Lyon V. Mells 979 
 Lyon V. Reed 817, 839, 841, 845, 846 
 
 Lyons v De Pass 7 
 
 Lyons v. Mulderry 111 
 
 Ijyster v. Odium 695 
 
 M. falsely called H. v. H. 201 
 
 Maber v. Maber 909 
 
 Maberley v. Sheppard 877 
 
 Maby v. Shepherd 708 
 
 Macallum v. Turton 1223, 1225 
 
 MoArdle u. Irish Iodine Co. 827 
 
 Macartney v. Graham 395 
 
 Macaulay v. Shackell 1493 
 
 Macbeath v. Haldimand 59 
 
 Macbride v. Macbride 1209, 1230, 1231 
 
 M'Brideu Watts 679 
 
 M'Cabe, Re 898, 899 
 
 M'Calmonti). Rankin 832 
 M'Cance v. Loud. & N. W. Ry. Co. 706 
 
 Maccann v. Maccann 777 
 
 M 'Cannon v. Sinclair 135 
 
 M'Carthy v. De Caix 1447 
 
 M'Carthyi). O'Brien 903 
 
 M'Clory^. Wright 813 
 
 M'Combie v. Anton 416 
 
 MacCormack v. MacCormack 951 
 
 M'Cormick ■!). Garnett 63 
 
 McCorquodale v. Bell 1496 
 
 M'Culloch V. Dawes 632 
 
 M'Danieli). Hughes 1416 
 
 M'Donaldu Longbottom 996 
 
 M 'Donald v. Rainor 1441 
 
 M'Donnellt). Conry 780 
 
 Macdonnell v. Evans 1217, 1232 
 
 M'Donnell ■!). Murray 395 
 
 M'Domiell i\ Pope 844 
 
 Macdougal r. Young 475 
 
 McDougall V. Field 961 
 
 M'Dougall V. Nicholls 1113 
 
 M'Dowall v. Lyster 291 
 
 Mace V. Cadell 703 
 
 M'Elveney ■«. Connellan 797 
 
 M'Ewan v. Campbell 705 
 
 M'Ewan v. Smith 879 
 
 M'Fadden V. Miirdock 311,1192 
 M'Fadzen v. May. & Corp. of Liverpool 
 
 466 
 
 Macfarlan v. Rolt 778 
 
TABLE OF CASES CITED. 
 
 Ixiii 
 
 PAGE I 
 
 M'Gahey I). Alston 179,388,390,658 
 
 M'Gonnell v. Murphy 819 
 
 M'Gregor Laird, The 1506 
 
 M'Gregor v. Bainbrigge 192 
 
 Maogi'egor v. Keily 190 
 
 Macgregor v. Rhodes 714 
 
 M'Gregor v. Topham 1539 
 
 M'Guire's case 358 
 
 M 'Hardy v. Hitchcock 448 
 
 Maohell v. Ellis 656 
 
 MdHenry v. Davies 704 
 
 Machiu v. Grindon 1550 
 Machu •». Loud. & S. "West. Ey. Co. 716 
 
 Macintosh v. Haydon 1516 
 
 Mclntyre v. Mancius 1223 
 
 Molver v. "Walker 1019 
 Mackay v. Com. Bk. of New Brunswick 
 
 761 
 
 M'Kay «. Rutherford 867 
 
 McKee v. Farnam 1315 
 
 M'Kee v. Nelson 1189 
 
 McKenire v. Eraser 566 
 
 McKeohnie v. Vaugliau 1020 
 
 McKenna v. Eager 153 
 
 McKennah v. Eager 1325 
 
 Mackenzie v. Dunlop 969 
 
 Mackenzie v. Pooley 215 
 
 Mackenzie v. Yeo 786 
 
 M'Key, Re 888 
 
 M'Kewau v. Rolt 466 
 M 'Kinney v. Ir. N. West. Ry. Co. 988 
 
 Mackintosh v. Marshall 54, 189 
 
 Mackley v. Chillingworth 1042 
 
 Mackley v. Pattenden 49 
 
 M'Kone, Re 1115, 1118 
 
 Maclae v. Sutherland 193 
 
 Maclean v. Dunn 926 
 
 M 'Lean v. Hertzog 370 
 
 M'LeUau v. Richardson 794 
 
 Macleod v. "Wakley 313 
 
 McLoughlin v. Bwyer 464 
 
 McMahon v. Bnrchell 624 
 
 M'Mahou V. Ellis 179, 1225 
 
 M'Mahon v. T^ennard 179 
 
 M'Mahon v. M'Eh-oy 207 
 
 M'Mahon v. Rawlings 1455 
 M'Manus v. Lancas. & Y. Ry. Co. 918, 
 
 979 
 
 M 'Master and Boyle's case 401 
 
 M'Murdo, Re 893 
 
 M'Naghten's case 1194 
 
 M'Naughteu's trial 197 
 
 M'Neil V. Perchard 1293 
 
 M 'Neil «. Philip 710 
 
 Macrory v. Scott 857, 863 
 
 M'Vicar, Re 892 
 
 M'Williams v. Nisby 110 
 
 Maddison v. Nuttall 660 
 
 Maddison v. Shore 1035 
 
 Maddock, Re 890 
 
 Maddox v. Fisher 8 
 
 Maden v. Catanach 1161, 1163 
 Magdalen College v. Att.-Oeu. 90, 149 
 
 Magee ». Atkinson 963 
 
 PAGE 
 
 Magee v. Mark 127, 128, 813 
 
 Magennis v. MacCuUough 843 
 
 Maghee v. O'Neil 911 
 
 Magnay v. Burt 1114, 1122, 1123 
 
 Magnay v. Fisher 707 
 
 Magnay v. Knight 367 
 
 Magnet, The 213 
 
 Magoun v. N. Engl. Ins. Co. 1445, 1451 
 Magrath v. Browne 1216 
 
 Magrath i). Hardy 108, 1398, 1416 
 
 Mahalen v. Dublin Distil. Co. 857 
 
 Maharajah Pertab Narain Singh v. Ma- 
 haranee Subhao Kooer Errata 
 Mahon v. Mahon 1115, 1121 
 Mahon's Trust, Re 1302 
 Mahony ■». Kekule 194 
 Mahonyi). Widow-s' Life Ass. Fund 1496 
 Mahood v. Mahood 394 
 Maid of Auckland, The 1423 
 Maingay v. Gahan 1401 
 Mair's Estate, Re 1532 
 Major V. Williams 901 
 Malcolm V. Ray 1066 
 Malcolm v. Scott 624 
 Malcolmson v. Morton 972 
 Malcomson «J. Baldock 214 
 Malcomson o. Clayton 222 
 Malcomson v. O'Dea 1C5, 1S5, 147, 565, 
 
 566 
 Maiden v. Gt N. Ry. Co. 1496 
 
 Male V. Roberts 9 
 
 Mallalieu v. Hodgson 110 
 
 Mallan v. May 943 
 
 Mallan v. Radloff 986 
 
 MaUett V. Batenian 862 
 
 Mallison, Re 1050 
 
 Malone v. O'CJonnor 96 
 
 Malone v. Spillessy 1207 
 
 Maloney v. Bartley 1223, 1224 
 
 Malpas V. Clements 176 
 
 Malpas V. London & S. W. Ry. Co. 947 
 Maltby v. Christie 670 
 
 Malton V. Nesbit 1194 
 
 Man V. Ricketts 24, 156 
 
 Manby v. Bewicke 1504 
 
 Manby v. Curtis 205, 563, 579 
 
 Manby v. Scott 199, 200 
 
 Manchester, Bk. of, Ex parte 872 
 
 Slandeville v. Welch 625 
 
 Mangles v. Dixon 702 
 
 Manley v. Boycot 962 
 
 Manley v. Shaw 1158 
 
 Mann, Re 888 
 
 Mann v. Lang 720 
 
 Mann v. Nuun 870, 958 
 
 Mann v. Owen 1436 
 
 Manners v. Postan 1533 
 
 Manning v. Cox 625 
 
 Manning v. East Cos. Ry. Co. 1312, 
 
 1320 
 Mansell v. Clements 1189 
 
 Manser v. Back 952 
 
 Manser v. Dix 778 
 
 Marbury v. Madison 797 
 
Ixir 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 March v. Keith 783 
 
 Marchmont Peer. 553,1488 
 
 Mare v. Charles 1000 
 
 Margareson v. Saxton 624 
 
 Maria das Dorias, The 1480 
 
 Maria das Dores, The 1480 
 
 MariansM v. Cairns 616 
 Marine Investment Co. v. Haviside 161 
 
 Markey v. Coote 288 
 
 Markham v. Gonaston 1520, 1527 
 
 Markham v. Staudforth 834 
 
 Marks v. Lahee 569, 575 
 
 Marmyon Peer. 563 
 
 Marriage v. Lawrence 1331, 1484 
 
 Marriage v. Marriage 938 
 
 Marriot v. Marriot 1404, 1436 
 
 Marsden v. Goode 55 
 
 Marsden v. Overbury 1073 
 Marsh v. Collnett 105, 1335, 1337, 1481 
 
 Marsh v. Keith 783 
 
 Marsh v. Loader 121 
 
 Marsh v. Lowder 121 
 
 Marsh v. Marsh 171, 900 
 
 Marsh v. Pier 1398 
 
 Marshal v. CrutweU 851 
 
 MarshaU v. Clifif 648, 649 
 
 Marshall ». Gougler 1522 
 
 Marshall v. Green 874, 878 
 
 Marshall v. Lamb 178, 179 
 
 Marshall v, Lynn 955, 956 
 
 Marshall v. Smith 90 
 Marshall v. The Ulleswater St. Na. Co. 
 
 135 
 Marshall v. The York, Newcastle, & 
 
 Berwick Ky. Co. 1066 
 
 Marston v. Dean 367 
 Marston v. Downes 409, 411, 772, 1233 
 
 Martin v. Andrews 1045 
 
 Martin v. Gale 121 
 
 Martin v. Geoghegan 906 
 
 Martin v. Hemming 458 
 
 Martin v. Kennedy 1424 
 
 Martin v. Nioolls 1460 
 
 Martin v, Podger 618 
 
 Martin v. Smith 834, 837 
 
 Martin v. Thornton 790 
 
 Martin's case 317 
 
 Martindale v. Bootli 164 
 
 Martindale v. FaDcner 97 
 
 Martyn v. 'Williains 237 
 
 Marvin v, Wallace 878 
 
 Mary, The 1228, 1453 
 
 The Mary or Alexandra 1228, 1506 
 
 Mash V. Densham 232 
 
 Mason v. Bradley 1515, 1516 
 
 Mason v. Farnell 54 
 
 Mason v. Kiddle 930 
 
 Mason v. Mason 210 
 
 Mason v. Riddle 930 
 
 Mason v. Skurray 969 
 
 Mason v. Wood 1376 
 
 Mason v. Wythe 466 
 
 Masperand Wife v. Brown 1433 
 
 Massev v. Johnson 870 
 
 PAOB 
 
 Master v. Miller 1514, 1515, 1622 
 
 Masterman v. Judson 223 
 
 Master Pilots & S. of Newc. v. Bradley 
 
 1006 
 Masters v. Barrets 233, 337 
 
 Masters v. Masters 967 
 
 Masters v. PoUie 137 
 
 Mather v. Lord Maidstone 337 
 
 Mather v. Trinity Church 147 
 
 Mathews v. Mathews 1022 
 
 Mathias, Re 892 
 
 Matson v. Booth 1525 
 
 Matson v. Wharam ' 864 
 
 Matthew ». Osborne 108,1412 
 
 Matthews v. Matthews 1025 
 
 Matthews v. Port 1475, 1476 
 
 Matthews v. Taylor 280 
 
 Matthey v. Wiseman 1416 
 
 Matts V. Hawkins 137 
 
 Maubourquet D. Wyse 1448,1449,1451 
 Maugham ■!). Hnbbard 1184,1185 
 
 Maund v. Monmouth Caji. Co. 293 
 
 Mauusell v. Ainsworth 1034 
 
 Maunsell «. Hedger 903 
 
 Maunsell v. White 703, 866 
 
 Mavor v. Payne 869 
 
 Mawby v. Barber 329 
 
 Mawson v. Hartsink 1238, 1240 
 
 Maxwell v. Pamell 990 
 
 May, Re 900 
 
 May V. Brown 316 
 
 May V. Footner 229 
 
 May V. Gwynne 1261 
 
 May V. Hawkins 466 
 
 May V. Selby 1042 
 
 May V. Taylor 636, 638 
 
 Mayfield v. Robinson 817 
 
 Mayfield v. Wadsley 875 
 
 Mayor v. Johnson 394 
 
 Mead v. Daubigny 314 
 
 Meade v. Smith 795 
 
 Meager v. Smith 695 
 
 Meagoe v Simmons 1183 
 
 Mears v. Ld. Stourton 1159 
 
 Meath, Bp. of, v. Ld. Belfield 523 
 
 Meath, Bp. of, ■». Mq. of Winchester 35, 
 105, 561, 562, 663, 564, 660, 778 
 Mechanics' Bk. of Alexandria v. Bk. of 
 Columbia 513 
 
 Mechelen v. Wallace 865, 870 
 
 Mecredy v. Taylor 200 
 
 Meddowcroft v. Huguenin 1435 
 
 Medlycott v. Assheton 173 
 
 Mee V. Reid 1164 
 
 Meekins v. Smith 1114 
 
 Melen v. Andrews 677, 682, 763 
 
 Melhuish v. Collier 312 
 
 Mellish V. Rawdon 49 
 
 Mellor V. Sidebottom 691 
 
 Mellors i>. Shaw 988 
 
 Mellow V. May 841 
 
 Melville's Ld., case 9, 23, 131, 614, 
 762, 1232 
 Melviu V. Whiting 92, 417 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 PAGE 
 
 Meroant. Credit Associat., Ee 1078 
 
 Mercer v. Cheese 202 
 
 Mercer v. Sparks 13i 
 
 Mercer v. Whall 348, U&, 353 
 
 Mercer v. Wise 706 
 
 Mercer v. Woodgate 148 
 
 Merchants Co., Ee 1078 
 
 Mercier v. Cotton 457 
 
 Meredith «. Footner 616, 646, 647 
 
 Meredith v. Meigh 880 
 
 Merle v. More 780 
 
 Merrick «. Wakley 1326, 1330 
 
 Merritt, Ee 896 
 
 Merry v. Nickalls 190 
 
 Mertens v. Haigh 1502 
 
 Messin v. Ld. Massarene 1460 
 Messina v. Petrococchino 1449, 1450 
 
 Meteor, The 215 
 
 MettersD. Brown 111, 141, 635 
 
 Mew3 V. Carr 927 
 Mexican & S. American Co., Ee, ex 
 
 parte Aston 1227 
 
 Meyer v. Dresser 104 
 
 Meyer v. Montriou 634 
 
 Meyer v. Ealli ] 449 
 
 Meyer v. Sefton 413 
 
 Meynell's case 735 
 
 Meyrick v. James 1176, Errata 
 
 Meyrick v. Woods 402 
 
 Michael v. Scockwith 1522 
 
 Michael v. Tredwin 979 
 
 Michell V. Eabbett* 662 
 
 Michell V. Williams 40, 41 
 
 Middlesex Sheriffs, case of 4 
 
 Middleditch v. Ellis 958 
 
 Middlehurst v. Johnson. 170 
 
 Middleton, Ee 899 
 
 Middleton v.. Earned 128, 1243 
 
 Middleton v. Brewer 696, 699 
 
 Middleton v. Croft 97 
 
 Middleton v. Mass 562 
 
 Middleton v. Melton 359, 572, 677, 
 
 658 
 
 Middleton v. Pollock 703 
 
 Middletou's case 111 
 
 Milan, The 1424 
 
 Mildrone's case 1164 
 
 Miles V. Bough 377, 1486 
 
 Miles V. Dawson 1233 
 
 Miles V. M'CuUougb 1124 
 
 Miles V. O'Hara 471, 472 
 
 Millar v. Heinrick 1196 
 
 Millard v. Bailey 1004 
 
 Miller v. Covert 1426 
 
 Miller ®. Cook 166 
 
 Miller v. Huddlestoae 174 
 
 Miller v. Irvine 854 
 
 Miller v. James 1455 
 
 Miller v. Lawton 514 
 
 Miller ». Salomons 1166 
 
 Miller v. Tetherington 970, 972 
 Miller v. Travers 946, 965, 1018, 1020 
 
 Miller v. Williams 696 
 Miller's case 645, 1188, 1189 
 
 Milligan, Ee 
 Millman v. Tucker 
 Millner's Estate, Ee 
 Mills V. Barber 
 Mills V, Dennis 
 Mills V. Fowkes 
 
 PAGE 
 
 892 
 1230, 1235 
 122 
 332, 336 
 636 
 910 
 
 Mills V. Mayor of Colchester 147, 1387 
 Mills V. MUls 453 
 
 Mills V. Oddy 350, 409, 775 
 
 Mills V. Scott 235, 241 
 
 Milne v. Leisler 500 
 
 Milson V. Day 1036 
 
 Milward v. Forbes 669 
 
 Mil ward v. Hibbert 971 
 
 Milward v. Temple 648 
 
 Mima Queen v. Hepburn 488 
 
 Minet v. Morgan 410, 77S 
 
 Minna, The 215 
 
 Minor v. Tillotson 356 
 
 Minshall v. Lloyd 390 
 
 Mints V. Bethill 413 
 
 Minty, Ee 888 
 
 Mires v. Solebay 38 
 
 Mitchell V. Crasswelleir 238 
 
 Mitchell V. Jenkins 40, 52, 134 
 
 Mitchell V. Lapage 383 
 
 Mitchell V. Thomas 170, 171 
 
 Mitcheson v. Oliver 215 
 
 Mobile, The 215 
 
 Mody V. Gregson 985 
 
 Moifatt V. Bateman 196 
 
 Moilliet V. Powell 234 
 
 Moises V. Thornton 1538 
 
 MoUettv. Brayne 840, 844 
 
 MoUett V. Wackerbath 1514, 1516 
 
 MoUwo, March ic Co. v. Ct. of Wards 192 
 Molton V. Camroux 706, 938 
 
 Molten V. Harris 3-79 
 
 Moncrieifi;. Eeade 237 
 
 Mondel v. Steele 447, 1422 
 
 Money v. Jorden 702, 703 
 
 Monkton v. Att.-Gen. 535, 536, 537, 
 540, 543, 644, 645, 546, 550, 582, 
 564, 657 
 Monroe, Bank of, v. Field 6113 
 
 Monroe v. Twisleton 765 
 
 Monsel iJ. Lindsay 1501 
 
 Montacute v. Maxwell 866, 867 
 
 Montague, Ld., v. Dudmaa 1264, 1493 
 Montague v. Montague 1024 
 
 Montague v. Perkins &&, 1527 
 
 Montefiore v. Guedalla 1024 
 
 Montefiori v. Montefiori 703 
 
 Montgomery v. Middleton' 58 
 
 Montreal, Bk. of, ■«. Munster Bk. 58 
 Montrose, Peer. 217, 1006 
 
 M'oodie v. Bannister 917 
 
 Moody u. Eowell 1179; 1205, 1206 
 
 1546, 1550, 1556 
 Moody V. Surridge 96-9 
 
 Moons V. De Bemales 1404 
 
 V. Moor S28 
 
 Moor V. Eoberts 464, 465 
 
 Moore v. Booth H17, 1118 
 
Ixvi 
 
 TABLE OF CASES CITED, 
 
 
 TAGE 
 
 Moore v. Campbell 
 
 380, 956 
 
 Moore v. Culverhouse 
 
 940 
 
 Moore v. Garwood 
 
 59 
 
 Moore v King 
 
 883 
 
 Moore v. Met. Ry. Co. 
 
 751, 824 
 
 Moore v. Moore 
 
 172, 217, 819 
 
 Moore v. Mourgue 
 
 51, 52 
 
 Moore v. Oasrler 
 
 329 
 
 Moore v. Smith 
 
 681, 682 
 
 Moore v. Whitehouse 
 
 394 
 
 Moorhouse v. Newton 
 
 615 
 
 More V. Salter 
 
 1520 
 
 Moreau v. Carieton's Trial 1159 
 
 Morewood v. Wilkes 163 
 
 Morewood v. Wood 518, 524, 525, 
 627, 1554 
 
 Morgan's Patent, Ee 939 
 
 Morgan v. Alexander 1112 
 
 Morgan v. Boys 492 
 
 Morgan v. Brydges 1206 
 
 Morgan v. Chetwynd 199 
 
 Morgan v. Conchmau 684 
 
 Morgan v. Griffith. 947 
 
 Morgan v. Hatchell 928 
 
 Morgan v. Hedger 339 
 
 Morgan v. Morgan 494, 1540 
 
 Morgan v. Nicholl 417 
 
 Morgan v. Pike 861 
 
 Morgan v. Ravey 195 
 
 Morgan v. Rolands 909 
 
 Morgan v. Rowlands 1427 
 
 Morgan v. Sim 8 
 
 Morgan v. Sykes 855 
 
 Morgan v. Thome 626, 1410 
 
 Morgan v. Vale of N. Ry. Co. 987 
 
 Morgan v. Whitmore 176 
 
 Morgan's case 1164 
 
 Morgans v. Bridges 707 
 
 Moriarty v. Grey 388 
 Moriarty «. Lond. Chat. & D. Ry. Co. 673 
 
 Morley's, Ld., case 422, 424, 438 
 
 Morley v. Attenborough 984 
 
 Morley v. Gt. Central Gas Co. 482 
 
 Morley v. Morley 167, 915 
 
 Mornington v. Momington 767 
 
 Morrell v. Dickey 1454 
 
 Morrell v. Fisher 1021 
 Morrell v. Frith 58, 59, 902, 905 
 
 Morrell v. Martin 1397 
 
 Morrell v. Wootten 1501 
 
 Morrice v. Swaby 1501, 1504 
 
 Morris v. Bethell 311 
 
 Morris v. Biirdett 678 
 
 Morris v. Davies 123, .^151 
 
 Morris v. Glynn 872 
 
 Morris v. Hannen 400 
 
 Mon-ia v. Harmer 1488 
 
 Moms V. Hauser 400 
 
 Morris v. Miller 181, 377, 715 
 
 Morris v. Parr 458 
 
 Morrison v. Arnold 471 
 
 Morrison v. Gen. St. Nariy. Co. 87 
 
 Morrison v. Kelly 1255 
 
 Morrison i>. Leiinard 1156 
 
 PAGE 
 
 Morrison v. Martin 1020 
 
 Morrison v. Universal Marine Ins. Co. 189 
 Morritt v. Douglass 882 
 
 Morrogh v. Power 903 
 
 Morse v. Royal 632, 634 
 
 Mortimers. M'Callan 396, 513, 1330, 
 1335, 1337 
 Mortimer v. Mortimer 645, 725 
 
 Mortimer v. Shortall 951, 952 
 
 Mortimore v. Wright 202 
 
 Morton v. Chandler 948 
 
 Morton v. Copeland 345, 926 
 
 Morton v. Tibbett 876, 877, 881 
 
 Morton v. Woods 117 
 
 Moseley Green Coal & Coke Co. Lim., 
 Re 1485 
 
 Moseley v. Davies 621, 527, 537 
 
 Moseley v. Haudford 961 
 
 Moseley v. M 'Mullen 286 
 
 Moss V. Ang.-Egyp. Nav. Co. 1418 
 
 Mossam v. Ivy 481, 1488 
 
 Mossop V. Eadon ' 395 
 
 Mostyn v. Fabrigas 9, 63, 65, 1198 
 
 Mostyn v. Mostyn 1010 
 
 Mostyn v. West Mostyn Coal & Iron Co. 
 
 779 
 Motteram v. East. Cos. Ry. Co. 1338, 
 1382, 1383 
 Mouflet V. Cole 25 
 
 Mould V. Williams 1395, 1396, 1397 
 Moule V. Brown 43 
 
 Mounsey v. Bumham 1532 
 
 Mounson ». Bourn 28 
 
 Mount V. Bogert 666 
 
 Mount V. Larkins 50, 1042 
 
 Mountague v. Harrison 1118 
 
 Mountford v. Harper 186 
 
 Mountnoy v. Collier 119, 580, 582 
 
 Mountatephen v. Brooke 625, 903 
 
 Mountstepheu v. Lakeman 863, 864 
 Moylan v. Nolan 199 
 
 Muilman v. D'Equino 49 
 
 MulhoUand ». Killeu 1408 
 
 MuUaly v. Walsh 206 
 
 Mullen, Re 883, 885 
 
 Mullett V. Hunt 1066, 1070, 1071 
 
 MuUins V. Collins 130 
 
 Mumford v. Gething 996 
 
 Mnncey v. Dennis 991 
 
 Munn V. Baker 1392 
 
 Munn V. Godbold 384 
 
 Munro, ex parte 919 
 
 Munro v. De Chemiant 703 
 
 Munro v. Munro 215 
 
 Munro v. Vandam 212 
 
 Munroe v. Piikingtou 1443, 1460 
 
 Murchie u Black 139 
 
 Murgatroyd v. Murgatroyd 330 
 
 Murieta v. Wolfhagen 1544 
 
 Murly D. M'Dermott 137 
 
 Murphy v. Boese 852 
 
 Murphy v. Meredith 907 
 
 I Murphy v. Nolan 1042 
 
 t Murphy v. Pollock 988 
 
TABLE OF CASES CITED, 
 
 Ixvii 
 
 PAGK 
 987 
 869 
 210 
 666 
 1243 
 375 
 287, 983 
 
 Murphy v. Smith 
 Murphy v Sullivan 
 Murray, in the goods of 
 MuiTay V. Coster 
 Murray v. Sheriffs of Duhlin 
 Murray v. Gregory 
 Murray v. Mace 
 Murray v Mackenzie 
 
 Murray v. Parker 951, 952 
 
 Murray t>. E. of Stair 948, 1525 
 
 Murray v. Toland 679 
 
 Murray ®. Walter 1501 
 
 Musgrave v. Emmerson 676 
 Mussumat Cheetha v. Baboo Miheen 
 
 Lall 203 
 Mutual Loan Fund Ass. v. Sudlow 962 
 
 Myers v. Perigal 872 
 
 Myers v. Sari 969, 970, 972 
 
 Myers v. "Willis 215, 1482 
 
 Myrick v. Daine 962 
 
 Mytton V. Thombury 522, 563 
 Naglb v. Shea 375, 1535, 1537 
 
 Naish V. Brown 354 
 
 Napper v. Sanders 205 
 
 Nash V. Armstrong 954 
 
 Nash V. Brown 697 
 
 Nash V. Gilkeson 324 
 
 Nash V. Hodgson 908, 910 
 
 Nash V. Turner 1537 
 Nat. Funds Association Co., Re 1493 
 
 Natchbolt v. Porter 843 
 
 Naylor v. Semmes 1232 
 
 Neal V. Jay 1488 
 
 'Neal V. Wilding 553 
 
 Neale v. Fry 1488 
 
 Neale v. Parkin 677 
 
 Nedby v. Nedby 165 
 
 Needham v. Bremner 1402 
 
 Needham v. Fraser 1070 
 
 Needham v. Smith 1168, 1169 
 
 Neeley v. Lock 128 
 
 Neil V. Neil 172 
 
 Neile v. Jakle 683 
 
 Neilson v. Harford 57 
 
 Nelson, Re 899 
 Nelson, Ld., v. Ld. Bridport 63, 1196, 
 
 1197 
 
 Nelson v. Coucti 1421 
 
 Nelson v. Stocker 706 
 
 Nelson v. Whittall 1541 
 
 Nepean v. Doe d. Knight 208 
 
 Neptunus 1391 
 
 Nesham v. Selby 858 
 
 Netherlands Steam Boat Co. v. Styles, 
 
 215 
 
 Netherwood v. Wilkinson 1066 
 
 Neve V. Pennell 940 
 
 Nevil V. Johnson 419, 420 
 
 Neville v. Wilkinson 703 
 
 Nevin v. Drysdale »57, 1024 
 
 Newall V. Elliott 1467 
 
 Newberry v. Benson 602 
 
 Newbould v. Cnltman 1397 
 
 Newhurgh v. Newbiirgh 1319 
 
 PAr.R 
 Newby r. Reed 211 
 
 Newcastle, Master Pilots & Seamen of, 
 V. Bradley 1006 
 
 Newcastle, D. of, v. Broxtowe 619 
 
 Newcastle, D. of, v. Clark 138 
 
 Newcastle, D. of, v. Kindorley 131 
 
 Newell V. Radford 856 
 
 Newell V. Simpkin 1261 
 
 New England Bank v. Lewis 1442 
 
 Newenham v. Smith 1002 
 
 Newhall v. Holt 372 
 
 Newham v. Raithby 1327 
 
 Newington v. Levy 1420 
 
 Newman v. Jenkins 207 
 
 Newman v. Piercy 1020 
 
 Newman v. Stretch 502 
 
 Newry & Ennisk. Ry. Co. -o. Combe 122 
 Newsam v. Carr 324, 329 
 
 Newsome v. Coles 1391 
 
 Newton v. Askew 1118, 1121 
 
 Newton v. Belcher 686 
 
 Newton v. Beresford 778 
 
 Newton v. Blunt 1415 
 
 Newton v. Chaplin 409, 410 
 
 Newton V. Clarke 884 
 
 Newton v. Constable 1118, 1119, 1120 
 Newton v. Ellis 293 
 
 Newton v. Harland 1044 
 
 Newton v. Liddiard 686 
 
 Newton v. Ricketts 162, 1203 
 
 New West Brewery Co. v. Hannah 1171 
 New Windsor case 637 
 
 Nias V. North. & East. Ry. Co. 778, 1261 
 Nichol V. Godtz 985 
 
 Nicholas & Freeman v. Binns 204 
 
 NichoUe v. Plume 879 
 
 Nicholls V. Dowding 611, 626, 634, 
 
 1177 
 Nicholls ». Downes 674 
 
 Nicholls V. Goldsmith 693 
 
 Nicholls V. Johnson 1522 
 
 Nicholls V. Osborn 1004 
 
 Nicholls V. Parker 522, 637 
 
 Nichols, In re 207 
 
 Nichols V. Walker 1397 
 
 Nichols V. Webb 593 
 
 Nicholson v. Bower 877, 880 
 
 Nicholson v. Bradfield Union 821, 822 
 Nicholson v. Dyson 265 
 
 Nicholson v. Mulligan 1025 
 
 Nicholson v. Revill 1516 
 
 Nicholson v. Smith 666 
 
 M ickalls ». Merry 190 
 
 Nickells v. Atherstone 844, 845 
 
 Nickolson v. Knowles 710 
 
 Nicol V. Alison 448 
 
 NicoU V. Greaves 47 
 
 Nightingal D. Devisme 1316 
 
 Niles 1). Brachett 1169 
 
 Noble V. Chapman 235 
 
 Noble V. Durell 972 
 
 Noble V. Kennoway 189, 301, 971, 992 
 Noble V. Phelps &' Willoek 901, 1434 
 Noble v. Ward 956 
 
 e 2 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 ITotle V. Willock 
 
 901 
 
 Noble V. 'Willook & Phelps 
 
 901, 1434 
 
 Noble's Trusts, Be 
 
 1014 
 
 Noden v. Jolinson 
 
 253 
 
 Nodin V. MuiTay 
 
 378 
 
 Noel V. Wells 
 
 1402, 1404 
 
 Nokes V. Gibbon 
 
 1043 
 
 Nolan V. Copeman 
 
 1042 
 
 Nolan V. Gumley 
 
 930, 933 
 
 Norden v. Williamson 
 
 1149 
 
 Norman v. Cole 
 
 949 
 
 Norman v. Morrell 
 
 967 
 
 Norman v. Phillips 
 
 877, 880 
 
 Non-eys v. Franks 
 
 1018 
 
 Norris v. Beach 
 
 1114 
 
 Norris v. Cooke 
 
 852 
 
 Norris v. Cottle 
 
 705 
 
 North V. Miles 
 
 610, 637 
 
 North of Eng. Joint-Stock Bk. Co., Ee, 
 ex parte Gouthwaite 89 
 
 North of Eng. Joint-Stock Bk. Co., Ee, 
 ex parte Straffon's Exors. 706 
 
 North German Lloyd St. Ship. Co. v. 
 Elder 215 
 
 North- West. Ey. Co. v. McMichael 122 
 Northam v. Latouche 1295 
 
 Norton V. Barett 884 
 
 Norton V. Lamb 446 
 
 Norton V. Melbourne 446, 448, 449 
 
 Norton v. Pettibone 661 
 
 Norwich & Lowestoft Nav. Co. v. Theo- 
 bald 1392 
 Norwich, Bishop of, v. Pearse 1141 
 Nothard v. Pepper 439 
 Notor V. Bi-ooks 987 
 Nottidge V. Prince 166 
 Novelli V. Eossi 1449, 1522 
 Nowlan «. Ablett 47 
 Nowlan v. Gibson 108, 1409, 1412, 1443 
 Nugent V. Smith 979, 980 
 Nunu v. Eabian 810, 875 
 Nunn's Will, Ee 1014 
 Nute's case 731 
 Nye D. Macdonald 12 
 Oakapplb v. Copous 678 
 Oakeley v. Ooddcen 860 
 Oakes v. Hill 1487 
 Oakes v. Turquand 1864 
 Oakley v. Monck 203 
 Oastler v. Henderson Errata 
 Obicini v. Bligh 1450 
 O'Brien v. Clement 694, 696 
 O'Brien v. Lewis 164 
 O'Brien v. E. 1163 
 O'Briens. Shell 850 
 Ocean, The 216 
 Ochsenbein v. Papelier 1435, 1445 
 O'Connell's case 507 
 O'Connell v. Barry 464 
 O'Counell v. Butler 170 
 O'Connell v. The Queen 669 
 O'Connor v. Majoribanks 764, 765 
 O'Connor v. Spaight 869 
 Odell, Ee 8S7 
 
 PAGE 
 
 O'Flanagan v. Geoghegan 1063, 1095 
 Ogden V. Benos 87 
 
 Ogden V. Hesketh , 617 
 
 Ogilvie V. Currie 154 
 
 Ogilvie V. Foljambe 859, 860 
 
 Ogle V. Cook 1639 
 
 Ogle V. Ld. Vane 956 
 
 Ogle V. Norclitfe 28 
 
 O'Grady v. Corr 602 
 
 Okeden v. Clifdeu 1000 
 
 Olding, Ee 886 
 
 Olive V. Guin 9 
 
 Oliver v. Bartlett 494 
 
 Oliver v. Woodroffe 930, 931 
 
 OUivant v. Bayley 986 
 
 Olver V. Johns' 886 
 
 Omichund v. Barker 1160, 1161, 1162, 
 1164, 1487 
 Ommaneyv. Stilwell 208 
 
 O'Neill V. Allen 147 
 
 O'Neill V. Bell 976 
 
 O'Neill V. Eead 625 
 
 Onions v. Tyrer 899 
 
 Onslow, Ee 912 
 
 Oppenheim v. White Lion Hotel Co. 195 
 O'Eeilly, Ee 1008 
 
 O'EeiUy v. Donohoe 1044 
 
 Ormerod v. Chadwick 159 
 
 Ormond v. Holland 988 
 
 Ormrod v. Huth 984 
 
 O'Eorke v. Bolingbroke Errata 
 
 O'Eourke v. Perceval 861 
 
 Orr V. Morioe 1535 
 
 Orrell v. Coppock 862 
 
 Orrett v. Corser 570 
 
 Osborn v. Lond. Dock Co. 466, 1227, 
 
 1235 
 Osborn v. Thompson 332, 333, 363 
 
 Osgathorpe v. Diseworth 1442 
 
 Osgood V. Manhattan Co. 632 
 
 Ostler V. Cooke ] 440 
 
 O'SuUivan v. Burke 581 
 
 Oswald, In re 171 
 
 Otter, The 334 
 
 Ougier v. Jennings 971 
 
 Outhwaite v. Luntley 1515, 1525 
 
 Outram v. Morewood 107, 108, 684, 
 1409, 1411, 1413, 1421 
 Overeud, Gurnej & Co> v. Oriental Fi- 
 nance Corp. 963 
 Owen V. Flack ' 673 
 Owen V. Warburton 795 
 Owings V. W'yant 377 
 Oxford, Worcester, and Wolverhampton 
 Bail. Co. V. Scudamore 652 
 Oxlade v. North-East. Bail, Co. 466 
 Paoey v. Lond. Tramways Co. 1497 
 Pacific St. Nav. Co. v. Lewis 227, 232 
 Packard v. Eichardson 853 
 Paddock v. Fon-ester 649, 665 
 Paddon v. Winch 785 
 Padgett V. Lawrence 665 
 Page V. Carew 1036 
 Paget). Faucet 24, 30 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 
 rAOE 
 
 Page V. Homans 
 
 r646 
 
 Pain V. Beestoii 
 
 1216 
 
 Paine v. Hall 
 
 170 
 
 Paine & Layton, ex parte 
 
 410, 1078 
 
 Paine ■;;. M'Intier 
 
 964 
 
 Paine v. Strand Union 
 
 819, 823 
 
 Painter v. Abel 
 
 684 
 
 Palethorp v. Furnish 
 
 647 
 
 Palmer v. Gooden 
 
 251 
 
 Palmer v. Maclear 
 
 1187 
 
 Palmer?;. Newall 
 
 1024, 1026 
 
 Palmer v. "Wright 
 
 1501 
 
 Panton v. Holland 
 
 249 
 
 Panton v. Williams 
 
 40, 41 
 
 Papendiek v. Bridgwater 
 
 580, 583, 661 
 
 Pardington v. South Wales Kail. Co. 918 
 
 Pardoti. Bingham 
 
 629 
 
 Pardoe v. O'Connor 
 
 675 
 
 Pardee v. Price 
 
 388 
 
 Parfitt V. Lawless 
 
 164 
 
 Pargeter v. Harris 
 
 113 
 
 Parker v. Carter 
 
 774 
 
 Parker v. Gordon 
 
 44 
 
 Parker v. Hoskins 
 
 421, 1538 
 
 Parker v. Ibbetson 
 
 185, 975 
 
 Parker v. M'Eenna 
 
 414 
 
 Parker v. M 'William 
 
 1174, 1175 
 
 Parker v. Morrell 511, 
 
 612, 634, 635 
 
 Parker v. Palmer 
 
 49 
 
 Parker v. Potts 
 
 212 
 
 Parker v. Staniland 
 
 874 
 
 Parker v. Taswell 
 
 834 
 
 Parker v. Wallis 
 
 877 
 
 Parker v. Yates 
 
 780 
 
 Parkhurstw. Lowten 1223, 1225, 1228, 
 
 12-30, 1231, 1233 
 
 Parkhnrst v. Van Cortlandt 858 
 
 Parkin v. Moon 
 
 1177, 1205 
 
 Parkins v. Hawkshav? 
 
 649, 774 
 
 Parkinson v. Atkinson 
 
 1038 
 
 Parkinson v. Lee 
 
 985 
 
 Parkinson v. Townsend 
 
 1434 
 
 Parmenter v. Webber 
 
 840 
 
 Parmiter v. Coupland 
 
 62 
 
 Parmiter v. Pai-miter 
 
 906 
 
 Parr, Re 
 
 899 
 
 Parr v. Cotchett 
 
 589, 590 
 
 Parry v. Fairhurst 
 
 227, 232, 239 
 
 Parry v. May 
 
 399 
 
 Parsons v. Brown 
 
 363 
 
 Parsons v. Carr 
 
 462 
 
 Parsons v. Hancock 
 
 720 
 
 Parsons v. Hayward 
 
 203 
 
 Parsons v. Loyd 
 
 102 
 
 Parsons v. Purcell 
 
 374 
 
 Parsons v. Sexton 
 
 986 
 
 Parsons v. Tinling 
 
 53 
 
 Parteriche v. Powlet 
 
 945 
 
 Parton v. Cole 
 
 366, 368 
 
 Parton v. Crofts 
 
 380 
 
 Partridge v. Coates 
 
 398 
 
 Partridge v. Scott 
 
 139 
 
 Partridge v. Usborne 
 
 1425 
 
 Paske V. Ollat 
 
 170 
 
 PAGE 
 
 Pasley ». Freeman 918 
 Patent Type Founding Co. r. Lloyd 483 
 Patent Type Founding Co. v. Walter 483 
 
 Pater u Baker 231 
 
 Paterson v. Gandasequi 963 
 
 Paterson v. Hardacre 337 
 
 Paterson v. Harris 264 
 
 Patrick v. Shedden 1457 
 
 Patrioksou v. Patrickson 181 
 
 Patten v. Poulton 173 
 
 Patterson ti. Beclier 675 
 
 Patterson v. Black 208 
 
 Pattinsonv. Luckley 1518 
 
 Patton V. Ash 186 
 
 Patton V. Goldsborough 665 
 
 Paul V. Cleaver 930 
 
 Pault). Meek 384 
 
 Paul?). Koy 1457 
 Pauling V. London & North Western Ky. 
 
 Co. 822, 826, 829 
 
 Paull V. Simpson 847 
 
 Paxton V. Douglas 1223, 1224, 1225, 
 
 1234 
 
 Paxton V. Popham 110, 948 
 
 Payne v. Barker 7 
 
 Payne v. Ibbotson 1184, 1186 
 
 Payne v. Rogers 625 
 
 Peaceable v. Watson 580, 581, 582 
 
 Peacham's case 744 
 
 Peacock's Estate, Re 1024 
 
 Peacock v. Bell 29, 101 
 
 Peacock v. Harper Errata 
 
 Peacock v. Harris 504, 671 
 
 Peacock v. Monk 950 
 
 Peacock v. Peacock 65, 192 
 
 Pearce v. D. 388 
 
 Pearce v. Hooper 1535 
 
 Pearce v. Morrice 384, 385 
 
 Pearce v. Ornsby 314 
 
 Peardon v. TJnderhill 303 
 
 Pearn, Re 887 
 
 Pears «. Laing 687, 916 
 
 Pearse v. Coaker 1420 
 
 Pearse v. Grove 7C0 
 
 Pearse v. Pearse 766, 768, 769, 778 
 
 Pearson v. Fletcher 773 
 
 Pearson v. Isles 1069 
 
 Pearson v. Le Maitre 313, 314, 316 
 
 Pearson v. Pearson 887 
 
 Pearson v. Shaw 24 
 
 Pearson v. Spencer ' 139 
 
 Pearsons, Re 885 
 
 Pease v. Wells 930 
 
 Peck, Re 207 
 
 Peckham v. Potter 662 
 
 Pedler v. Paige 1533 
 
 Pedley v. Dodds 1021 
 
 Pedley v. Welleslev 1148 
 Peek V. N. Stafford Ry. Co. 861, 918, 958 
 
 Peel, Re 1003 
 
 Peel's case 1364 
 
 Peerless, The 9, 214 
 
 Peile V. Stoddart 1504 
 
 Peirce v. Corf 858, 927 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Peisoh V. Dickson 969 
 
 Pejepscot Prop's v. Eatisom 146 
 
 Pelham v. Pickersgill 147 
 
 Pell V. Daubeny 1045 
 
 Pelletreau v. Jackson 107, 494 
 
 Pembroke, Lady, Ee 891 
 
 Pender v. Fobes 962 
 
 Pendleton v. Eooth 638 
 
 Pendrell v. Pendrell 545 
 
 Pcnfold V. Abbott 982 
 
 Pennr. Bibby 1559 
 
 Penn v. Jack 351 
 
 Pennefather v. Pennefather 207 
 
 Pennell v. Meyer 616, 617 
 
 Penney ». Goode 1501 
 
 Penniman v. Hall 1173 
 
 Penny v. "Watts 1237 
 
 Penniddock v. Hammond 778 
 
 Pentreguinea Coal Co., Re 868 
 
 People, The, v. Holbn.ok 370 
 People, The, v. Mather 1225, 1227, 1228, 
 1231, 1238 
 
 People, The, v. Matteson 1162 
 People, The, ex rel. Ordronanx v. Che- 
 
 garay 1152 
 
 Peppiatt ». Smith 464 
 
 Peppin V. Solomons 253 
 
 Perchard v. Tindall 658 
 
 Perciv-al v. Caney 616 
 
 Percival ». Nansom 575, 597 
 
 Perfect v. Lane 166 
 
 Perigal v. Nicholson 685 
 
 Perkins v. Bradley 163 
 
 Perkins v. Yaughan 314 
 Perren v. Monmouthshire Ry. Co. 695, 
 
 698, 699 
 
 Perring v. Hone 1516 
 
 Perry v. Davis 678 
 
 Perry v. Fisher 234, 239 
 
 Perry D. Pitzh owe 817 
 
 PeiTy V. Gibson 1202 
 Perry v. Meddowcroft 1402, 1403, 1435 
 
 Perry v. Smith 779, 780 
 
 Perry v. Watts 237, 238 
 
 Perry's case 1151 
 
 Persse v. Persse 1115 
 
 Perth Peer. 529, 555, 1328 
 
 Peru, Rep. of, v. 'Weguelin 1491 
 
 Peruvian Ry. Co. v. Thames & Mersey 
 
 Marine Ins. Co. 830 
 
 Petcht). Lyon 649 
 
 Petchell, Re 895 
 
 Peter ■;;. Compton 869 
 
 Peters v. Brown 903 
 
 Peters v. Fleming 55, 56 
 
 Petersfield case 637 
 
 Petherbridge V. Ash 922 
 
 Petherick v. Turner 511, 635 
 
 Peto V. Hague 614 
 
 Petrie v. Nuttall 115, 532, 1416 
 
 Petty V. Anderson 647 
 
 Petty)). Styward 168 
 
 Peyton v. Harting 461 
 
 Peyton v. M'Dermott 379 
 
 PAGE 
 
 54 
 
 494 
 
 410, 411 
 
 845 
 
 207 
 
 665 
 
 Ey. Co. V. 
 
 1206 
 
 , 1456, 1460 
 
 404, 405 
 
 1435 
 
 199 
 
 857 
 
 1002 
 
 1425 
 
 877 
 
 971 
 
 1402 
 
 631 
 
 568, 581, 662 
 
 1208 
 
 1467 
 
 Phayre, Lessee of, v. Fahy 
 Phelps V. Foot 
 Phelps V. Prew 
 Phen6 V. Popplewell 
 Phene's Trusts 
 Phenix v. Ingraham 
 Philadelphia and Trenton 
 
 Simpson 
 Philips V. Hunter 1416, 
 
 Philipson v. Chase 
 Philipson v. Earl of Egremont 
 Philipson v. Hayter 
 Philimore v. Barry 
 Phillips V. Barker 
 Phillips V. Berrick 
 Phillips V. Bistolli 
 Phillips V. Briard 
 Phillips V. Bury 
 Phillips V. Clagett 
 Phillips V. Cole 
 Phillips V. Eames 
 Phillips V. Evans 
 
 Phillips V. Gibbs woa 
 
 Phillips V. Hall 710 
 
 Phillips V. Irving 50 
 
 Phillips V. Im Thum 713 
 
 Phillips V. Kingiield 1238 
 
 Phillips V. Mullings 165, 169 
 
 Phillips V. Phillips 1024 
 
 Phillips V. Pound 1114 
 
 Phillips V. Routh 465 
 
 Phillips V. Ward 1415 
 
 Phillips V. Wimburn 753 
 
 Phillipson v. Hayter 199 
 
 Phillpotts V. Phi'llpotts 109 
 
 Phipps V. Hale 890 
 
 Phipps V. Parker 1533 
 
 Phythian v. White 263 
 
 Pickard v. Sears 701, 707 
 
 Pickering v. Appleby 873 
 
 Pickering v. Dowson 962 
 
 Pickering v. Noyes 410, 1233 
 
 Pickett V. Paokham 203 
 
 Pickford V. Gutch 183 
 
 Picton's case 1389, 1488 
 
 Piercy's case 1488 
 
 Piers V. Piers 180 
 
 Pierson v. Hutchinson 394 
 
 Pigg V. Clarke 176 
 
 Piggott V. Green 175 
 
 Pigott V. Cubley 991 
 
 Pigott V. HoUoway 1185 
 
 Pigot's case 1514, 1520, 1522, 1623 
 
 Pike's case 1157 
 
 Pilgrim, Re 1074, 1081 
 
 Pilgrim v. Southampton & Dorchester 
 Ey. Co. 655 
 
 Pilkington v. Eiley 294 
 
 Pillar V. Llynvi Coal Co. 919 
 
 Pilley V. Baylis 
 Pilsworth V. Mosse 
 Pim V. Curell 518, 
 Pinches v. Harvey 
 Pinney v. Pinney 
 
 522, 
 
 32, Errata 
 
 895 
 
 531, 533, 1408 
 
 934 
 
 1325 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 PAGE 
 
 Pipe V. Fulcher 530 
 
 Piper V. Chappell 8, 9 
 
 Pirie v. Iron 449 
 Pitcher v. King 1034, 1036, 1289 
 
 Pitman v. Maddox 592 
 
 Pitman v. Woodbury 861 
 
 Pitt V. Chappelow 712 
 
 Pitt V. Coomes 1115 
 
 Pitt V. Shew 49 
 Pitton V. Walter 1310, 1313, 1475 
 
 Pitts V. Beckett 380 
 
 Pizarro, The 124, 131 
 
 Placker v. Gonsalus 665 
 
 Planch^ V. Braham 60 
 
 Plant V. Kendrick 1501 
 
 Plant V. M'Ewen 635 
 Plant V. Taylor 151, 644, 546 
 Plaxton V. Dare 391, 392, 522, 529 
 
 Playne v. Scriven 883 
 
 Plenty v. "West 894 
 
 Pleyins v. Downing 966 
 
 Plimmer v. Sells 647 
 
 Plowes V. Bossey 123, 799 
 
 Plnmer v. Brisco 178, 1637 
 
 Plummer v. Woodburne 1445, 1456 
 
 Plunkett V. Cobbett 313, 796 
 
 Plimkett's estate, Re 1013 
 
 Pocock V. Billing 664 
 
 Pocock V. Pickering 932 
 
 Podmore v. Whatton 173, 394 
 
 Pogson V. Thomas 1021 
 
 Ponl V. Yonng 465 
 
 Polden V. Bastard 139 
 
 Pole V. Leask 702 
 
 Pole V. Eogers 333, 451 
 
 Pollack V. Pollack 453 
 
 Pollard V. Bell 1450, 1453 
 
 Pollard V. Scott 630, 1476 
 
 Pollock V. M'Alpiu 214 
 
 Pollock V. Pollock 169 
 
 Pollock 1!. Stables 189, 190 
 
 Pollock V. Stacy 840 
 
 Pomeroy v. Baddeley 1174 
 
 Pond V. Dimes 449 
 
 Ponsford v. O'Connor 450 
 
 Ponsford v. Swaine 790 
 
 Pontefract, ex parte 1442 
 
 Pontifexi!. Bignold 100 
 
 Pool V. Bridges 499 
 Poole V. Dicas 592, 593, 596, 597, 
 598, 599 
 
 Poole V. Gould 1124 
 
 Poole V. Griffith 1476 
 
 Poole V. Hohbs 931 
 
 Poole V. Huskinson 147 
 
 Poole V. Palmer 652 
 
 Poole V. Eichardson 1190 
 
 Poole V. WaiTen 1534 
 
 Pooley V. Driver 192 
 
 Pooley V. Goodwin 161 
 
 Pooley V. Harradine 962 
 
 Pope V. Andrews 649 
 
 Pope V. Askew 1547 
 
 Porter v. Cooper 1310 
 
 
 PAGE 
 
 Porter v. Weston 
 
 134 
 
 Porter's Trusts, Re 
 
 1337 
 
 Portland, D. of, v. Hill 
 
 629 
 
 Portmore, Ld., v. Taylor 
 
 166 
 
 Potez V. Glossop 
 
 176, 588 
 
 Pothonier v. Dawson 
 
 991 
 
 Pott V. Eyton 
 
 191 
 
 Pott V. Todhunter 
 
 951 
 
 Potter V. Baker 
 
 174 
 
 Potter V. Deboos 
 
 186 
 
 Potter 1!. Duffield 
 
 857 
 
 Potter V Faulkner 
 
 987 
 
 Potter V. Nicholson 
 
 931 
 
 Potter V. Rankin 
 
 1042 
 
 Potter V. Webb 
 
 324 
 
 Potts V. Batty 
 
 1064 
 
 Potts V. Durant 
 
 662, 563 
 
 Potts V. Nixon 
 
 108, 112 
 
 Potts V. Plunkett 
 
 988 
 
 Potts V. Smith 
 
 92 
 
 Potts V. Suit 
 
 165 
 
 Poulsum V. Thirst 
 
 293 
 
 Poultney v. Holmes 
 
 840 
 
 Poulton 0. Lond. & S. West. Ey. Co. 
 
 824 
 
 Pound V. Wilson 1199 
 
 Pounsett V. Fuller 981 
 
 Powell, Ee 889 
 
 Powell V. Bradbury 261 
 
 PoweU V. Dillon 855 
 
 Powell V. Divett 1514, 1516 
 
 Powell V. Edmunds 962 
 
 Powell V. Ford 1546 
 
 Powell V. Helhcar 819 
 
 Powell V. Hibbert 287 
 
 Powell V. Hodgetts 510 
 
 Powell V. Jessopp 871 
 
 Powell V. Layton 1393 
 
 PoweU V. Milbum 128 
 
 PoweU V. PoweU 894 
 
 PoweU V. Smith 97 
 
 Power V. Eeeves 104 
 
 Power V. Webber 1063 
 
 Powis Barony 1322 
 
 Powis 1). Smith 52 
 
 Powys V. Mansfield 850 
 
 Prance v. Sympson 902, 906 
 
 Pratt V. Hanbury 231 
 
 Prentice v. Elliott 287 
 
 Presoott V. Puffery 1484 
 
 President, The 216 
 
 Preston v. Carr 778 
 
 Preston v. Harvey 1398 
 
 Preston v. Merceau 945, 962 
 
 Preston v. Peeke 103, 1424 
 
 Prestwick v. Foley 657 
 
 Price, Ee 1073, 1081 
 
 Price V. Carter . 930, 934 
 Price V. Dewhurst 1446, 1446, 1455 
 
 Price V. Dyer 955 
 
 Price V. Harwood 708 
 
 Price V. Hewett 706 
 
 Price V. HoUis 639 
 
 Price V. Ley 951 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Price V. Littlewood 14K2 
 
 Price V. Powell 897 
 
 Price V. Price 165, 202, 897 
 
 Price -!). Eamsay 679 
 
 Price V. Eichardson 8S4 
 
 Price V. Torrington 692, 595, 697 
 
 Price V. Woodhouse 634 
 
 Price V. Worwood 675, 676 
 
 Prichard v. Powell 521, 624, 525 
 
 Prideaux v. Bimnett 986 
 
 Prideaux w. Griddle 43 
 
 Priestly v. Fowler 988 
 
 Prince v. Blackburn 1537 
 
 Prince V. Same 616, 621, 729, 1241 
 P. of "Wales Life Ass. Co. v. Harding 
 
 823 
 
 Princess Charlotte, The 1482 
 Prinsep & E. India Co. i). Dyce Sombre 
 
 170, 204, 338, 1400 
 
 Pristwick v. Poley 657 
 
 Pritchard v. Bagshawe 641 
 
 Pritchard v. Black 17 
 
 Pritchard v. Brown 851 
 
 Pritchard v. Draper 511, 635 
 
 Pritchard v. Foulkes 784 
 
 Pritchard v. Hitchcock 1392, 1393 
 
 Pritchard V. "Walker 178, 672 
 
 Pritt -v. Faircloiigh 189, 594 
 
 Proc. Gen. v. "Williams 542, 644 
 
 Proctor V. Jones 877 
 
 Proctor V. Lainsou 423, 636 
 
 Prole V. "Wiggins 109, 110 
 
 Prosser v. Gwillim 663 
 
 Prosser v. "Wagner 1402 
 
 Protector, The 215 
 
 Proudfoot V. Montefiore 761, 978 
 
 ProTis V. Reed 1243 
 Prowse V. The European & Amer. St. 
 
 Shipping Co. 9, 214 
 Prudential Ass. Co. o. Edmonds Errata 
 Prudential Mutual Ass. Co. D.Curzon 1472 
 
 Prudham v. Phillips 1435, 1436 
 
 Prudhomme v. Eraser 263, 265 
 
 Pruen v. Cox 922 
 
 Pryor ■». Pryor 890 
 
 Pryor v. Swaine 930 
 
 Puddephatt, Re 888 
 
 Pugh V. Robinson 28 
 
 Pugli & Shai-man's case 1078 
 
 Pujolas V. Holland 327 
 
 Pulbrook V. Lawes 875 
 
 PuUen V. "White 353 
 
 Pulley V. Hilton 1332 
 
 Pulsford V. Richards 702, 703 
 
 PurcoU V. Macnamara 1287, 1392 
 
 Purdon v. Ld. Langlurd Errata 
 
 Pm-don V. Purdon 911 
 
 Putnam v, Lewis 719 
 
 Pye V Butterfield 462, 466, 1223 
 
 Pyer v. Carter 139 
 
 Pyke V. Crouch 414, 420, 1413 
 
 Pym V. Campbell 948 
 
 Pym V. Lockyer 1024 
 
 Pyue, Re " 1035 
 
 PAGE 
 Q0AETERMAN ?). Cox 414,1170 
 
 Quebec Maiine Ins. Co. v. Commer. Bk. 
 
 of Canada 978 
 
 Queen's, The, case 70, 72, 73, 75, 359, 
 
 360, 620, 729, 762, 1137, 1160, 
 
 1165, 1216, 1222, 1241, 1243, 1244 
 
 Queen, The 213 
 
 Quennell v. Turner 1020, 1022 
 
 Quick V. Quick 173 
 
 Quick V. Staines 717 
 
 Quilter v. Jorss 396 
 
 Quincey v. Sharpe 907 
 
 Quiun V. Butler 900 
 
 Quinn v. Shields Errata 
 
 E.'s Trusts, Re 799 
 
 R. V. 154, 155, 277 
 
 R. V. Abergwilly 488, 549, 605 
 
 R. V. Abingdon 354 
 
 R. V. Ackroyd 741 
 
 R. V. Adams 154 
 
 R. V. Adderbury East 633 
 
 R. u. Addis 813 
 
 R. 0. Adey 1233 
 
 R. 0. Aickles 370, 406, 1330, 1480 
 
 E. V. Allen 121, 181, 339, 358 
 
 R. V. AUgood 1259 
 
 R. V. Allison 157, 317 
 
 R. V. All Saiuts 544 
 
 R. V. All Saints, Southampton 159, 1439 
 E. u. All Saints, "Worcester 1149, 1160, 
 
 1223 
 R. o. Almon 130 
 
 R. v. Ambergate, &c., Ey. Co. 1264, 
 
 1493 
 R. V. Ambury 1059 
 
 R. V. Anderson 1158, 1306 
 
 R. V. Andrews 269 
 
 R. V. Antrobus 523 
 
 R. V. Appleby 682, 763 
 
 R. ■;;. Archer 198 
 
 R. v. Armitage 809 
 
 R. V. Arnold 740, 741, 748 
 
 E. V. Arundel 131 
 
 R. V. Ashburton 161 
 
 R. V. Ashton 612 
 
 E. V. Aspinall 103, 331 
 
 E. V. Aston 317 
 
 E. V. Atkins 671 
 
 E. V. Atwood 812 
 
 E. -0. Austen 422 
 
 R. V, Austin 93 
 
 R. -0. Avery 767, 779, 781 
 
 R. V. Azire 1151 
 
 E. V. Babb 1260, 1264 
 
 E. V. Baines 159 
 
 R. V. Bagshaw 1439 
 
 R. V. Baker 607 
 
 R. u. Baldry 731, 743 
 
 R. V. Ball 317, 1177 
 
 E. u. Balls 308 
 
 R. 0. Banks 341 
 
 R. V. Bannam 275 
 
 R. V. Barker 331, 399 
 
 R. V. Barnard 812, 1209 
 
TABLE OP CASES CITED. 
 
 Ixxiii 
 
 
 PAGE 
 
 
 PAGE 
 
 E. V. Barnes 
 
 246, 672, 1059, 1325 
 
 E. V. Boyes 812, 1223, 1227, 1228, 
 
 E. V. Bamet 
 
 1062 
 
 
 1229, 1234 
 
 E. V. Barnsley 
 
 674 
 
 E. V. Braintree 
 
 390 
 
 R. V. Barrett 
 
 179, 1059 
 
 E. V. Braithwaite 
 
 805 
 
 E. 11. Barrow 
 
 355 
 
 E. V. Bramley 
 
 800, 1148 
 
 E. V. Barry 
 
 307 
 
 R. V. Brandreth 
 
 506 
 
 E. V. Bartlett 
 
 739, 762 
 
 R. V. Brangan 
 
 1255 
 
 E. V. Barton 
 
 156 
 
 E. V. Brasier 488, 1157, 1158 
 
 E. V. Basingstoke 
 
 372 
 
 R. -It. Braynell 
 
 758 
 
 E. V. Bateman 
 
 758 
 
 R. V. Brecknock & Aherg. 
 
 Can. Co. 1265 
 
 E. 4). Bate 
 
 743 
 
 E. V. Brennau 
 
 406 
 
 E. ». Bates 
 
 432 
 
 E. V. Brettell 
 
 60 
 
 R. V. Batliwick 106, 1148, 1149, 1160 
 
 R. V. Brewer 
 
 777, 1221 
 
 E. V. Bayley 
 
 278 
 
 R. V. Brice 
 
 1168 
 
 E. V. Beale 
 
 121 
 
 R. V. Briggs 
 
 311 
 
 E. V. Beaney 
 
 24, 257 
 
 R. K. Brightside Bierlow 
 
 303, 632 
 
 R. V. Beard 
 
 98, 133 
 
 R. V. Brisby 
 
 1467 
 
 E. V. Beardsall 
 
 1482 
 
 E. V. Lady Briscoe 
 
 446 
 
 E. V. Beokwith 
 
 354 
 
 E. V. Bristol & Exeter Ey. Co. 1265 
 
 E. V. Bedfordshire 
 
 518, 525 
 
 E. V. Britton 
 
 758 
 
 R. V. Bedinghaiu 
 
 674 
 
 R. V. Broadhempstou 
 
 158 
 
 R. «), Beestoa 
 
 41«, 417, 431, 434 
 
 R. V. Brogan 
 
 751 
 
 E, V. Beeton 
 
 310 
 
 R. 0. Brommich 
 
 671 
 
 E. <B, Beezley 
 
 1203, 1204 
 
 R. V. Brooke 
 
 1^03 
 
 R. V. Bell 
 
 753 
 
 E. V. Brookes 
 
 257 
 
 E. V. Bellamy 
 
 1310 
 
 E, V. Brooks 
 
 93, 198 
 
 R. V. Benson 
 
 157, 358, 1287 
 
 E, V. Brown 24, 146, 
 
 317, 782, 1237 
 
 R. V. Bentley 
 
 754 
 
 E. V. Browne 
 
 363, 1313 
 
 E. i)..Berenger 
 
 1178 
 
 E. V. Brownell 
 
 1068 
 
 E. V. Berigau 
 
 739, 1431 
 
 E. V. Bryan 
 
 736 
 
 E. 1). Bernadotti 
 
 610 
 
 E. V. Buckingham, Js. 
 
 1262, 1264, 
 
 E. V. Berriman 
 
 277 
 
 
 1396, 1438 
 
 E. V. Berry 
 
 1141, 1155 
 
 E. V. Buckley 
 
 417, 571, 594 
 
 E. V. Betts 
 
 54 
 
 E. V. Budd 
 
 203 
 
 E. V. Beverley 
 
 1259 
 
 R. V. Bull 
 
 423, 1203 
 
 E. V. Bigg 
 
 820 
 
 R. V. Bullard 
 
 793 
 
 E. V. Bignold 
 
 354 
 
 R. V. Bullock 
 
 257, 268 
 
 E. «. Bingham 
 
 1286 
 
 E. V. Burbage 
 
 1073 
 
 E. </. Bingley 
 
 270 
 
 E. V. Burdett 
 
 1204 
 
 R. V. Birch 
 
 1310 
 
 R. V. Burgiss 
 
 1062 
 
 E. V. Birchenough 
 
 1429 
 
 R. V. Burko 
 
 73, 1215 
 
 E. V. Bird 
 
 259 
 
 R. ■;;. Burley 
 
 739 
 
 E. V. Birdseye 
 
 307 
 
 R. V. Burridge 
 
 26 
 
 R. V. Birmingham 
 
 545, 571, 581, 582 
 
 E. V. Burt 
 
 322 
 
 E. V. Bjornsen 
 
 128, 156, 1482 
 
 E. V. Bury St. Edmund's 
 
 605 
 
 E. V, Blackburn 
 
 354, 739, 744 
 
 E. V. Bush 
 
 276 
 
 R. 0. Blake 
 
 506, 508, 1119 
 
 E. V. Butcher 
 
 760 
 
 E. V. Blakemore 
 
 108, 1400, 1409, 
 
 E. V. Buttle 
 
 1226 
 
 
 1413 
 
 E. V. Butterwick 
 
 1051 
 
 E. V. Bland 
 
 278 
 
 R. V. Buttery 
 
 1404, 1407 
 
 R. V. Blandy 
 
 81, 496, 497, 610 
 
 E. V. Cadogan, E. of, 
 
 1264 
 
 R. V. Bleasdale 
 
 305 
 
 R. V. Cain 
 
 738, 760 
 
 E. V. Bliss 
 
 522, 526, 583 
 
 E. V. Callaghan 
 
 612 
 
 E. V. Bodle 
 
 1203, 1204 
 
 R. V. Calvert 
 
 431 
 
 E. V. Bolton 
 
 1396, 1397, 1438 
 
 R. V. TJ. of Cambridge 
 
 29 
 
 E. V. Bonner 
 
 609, 610 
 
 R. V. CampbeU 
 
 276 
 
 E. V. Bond 
 
 752 
 
 R. V. Archbp. of Canterbury 1006, 1451 
 
 E. V. Borrett 
 
 671 
 
 E. V. Canwell 
 
 259 
 
 R. V. Boswell 
 
 739, 744 
 
 R. V. Carew 
 
 923 
 
 R. V. Boucher 
 
 399 
 
 R. V. Carey 
 
 813, 1033, 1108 
 
 R. V. Boulter 
 
 806 
 
 R. V. Cargenwen 
 R. V. Carlile 
 
 207 
 
 R. V. Bowden 
 
 738 
 
 102, 354 
 
 R. V. Bowen 
 
 100, 103 
 
 E. V. Carnarvonshire 
 
 674 
 
 E. V. Bowman 
 
 1436,1443 
 
 R. V. Carr 
 
 616 
 
Ixxiv 
 
 TABLE OP CASES CITED. 
 
 
 PAGE 
 
 
 PAGE 
 
 E. V. Carrol 
 
 432 
 
 E. V. Cooke 98 
 
 , 242, 247, 317, 794, 
 
 K. V. Cart 
 
 741 
 
 
 1045, 1046 
 
 E. V. Carter 
 
 1295, 1484 
 
 R. V. Cooper 
 
 155, 732, 735, 736 
 
 R. V. Carty 
 
 752 
 
 R. V. Coote 
 
 756, 757 
 
 E. ■». CasboM 
 
 93 
 
 R. V. Cope 
 
 593, 599 
 
 E. *. Cass 
 
 732, 742 
 
 E. V. Coppard 
 
 1313 
 
 E. V. Cassidy 
 
 1203 
 
 R. V. CoppuU 
 
 372 
 
 E. «. Castle Morton 
 
 364 
 
 E. V. Corden 
 
 159 
 
 E. •». Castleton 
 
 389, 393 
 
 E. V. Cornelius 
 
 1264 
 
 E. «. Catesty 
 
 158, 159 
 
 E. V. Cottingham 
 
 1442 
 
 E. V. Cator 
 
 1656 
 
 R. V. Cotton 306, 
 
 525, 533, 535, 1468 
 
 E. V. CaTendish 
 
 129 
 
 R. V. Court 
 
 735, 743 
 
 E. *. CeUier 
 
 744, 745 
 
 R. V. Courtney 
 
 64, 740 
 
 E. v. Chadderton 
 
 549 
 
 R. v. Couseus 
 
 1045 
 
 E. n. Champney 
 
 805, 806 
 
 R. V. Coyle 
 
 656, 682 
 
 E. V. Champneys 
 
 1429 
 
 R. V. Cradock 
 
 167 
 
 E. V. Chapman 
 
 1177, 1204 
 
 E. v. Crediton 
 
 1479 
 
 E. V. Charlbury 
 
 1442 
 
 E. V. Creevey 
 
 133 
 
 E. V. Charlesworth 
 
 1226, 1229 
 
 R. V. CressweU 
 
 157 
 
 E. r. Chatliam 
 
 674, 675 
 
 E. V. Crick 
 
 269 
 
 E. 17. Chawton 
 
 942 
 
 E. V. Crockett 
 
 609 
 
 E. V. Cheadle 
 
 959 
 
 E. V. Croke 
 
 1440 
 
 E. V. Cherry 
 
 757, 1229 
 
 E. V. Crondall 
 
 674 
 
 E. V. Chester 
 
 1257 
 
 R. •». Cross 
 
 1229 
 
 E. ■«. Chester, Bp. of, 
 
 1436 
 
 E. ■». Crossfield 
 
 723, 727 
 
 E. V. Chester, Sheriff of. 
 
 1264 
 
 R. V. Croncher 
 
 427, 433 
 
 R. V. Cheverton 
 
 736, 742 
 
 E. V. Crowther 
 
 431 
 
 E. V. Chidley 
 
 758 
 
 E. V. Cruise 
 
 1253 
 
 R. V. Christian 
 
 1293 
 
 E. V. Cruse 
 
 99, 199 
 
 E. V. Christie 
 
 354, 609 
 
 R. V. Culkin 
 
 273 
 
 R. V. Christopher 363, 
 
 364, 376, 431, 
 
 R. ■». Culpepper 
 
 393 
 
 
 474, 1221 
 
 R. V. Curtis 
 
 1220 
 
 E. T. Clapham 
 
 1478 
 
 R. V. Daman 
 
 159 
 
 K. V. Clare 
 
 801 
 
 E. V. Dann 
 
 1429 
 
 E. V. Clark 
 
 270, 277 
 
 R. V. Davie 
 
 969 
 
 R. V. Clarke 330, 331, 
 
 434, 497, 718, 
 
 R. V. Davis 
 
 323, 754, 756 
 
 
 1242 
 
 R. V. Dawber 
 
 812 
 
 R. V. Cleary 
 
 437, 608 
 
 R. V. Dawson 
 
 258 
 
 R. V. Clement 
 
 1068 
 
 R. V. Day 
 
 432, 433 
 
 E. V. Clements 
 
 433 
 
 R. I). Deacon 
 
 803, 804 
 
 R. V. Clewes 
 
 730, 736, 740 
 
 R. V. Dean 
 
 331 
 
 R. V. Clint 
 
 1442 
 
 R. V. De Berenger 
 
 27, 1387 
 
 E. D. Cliyiger 
 
 1149 
 
 R. V. Deeley 
 
 254, 1140 
 
 R. V. Cluderoy 
 
 1046, 1050 
 
 R. V. Delaraotte 
 
 407, 1237 
 
 R. V. Clure 
 
 331 
 
 R, V. Dendy 
 
 254 
 
 R. V. Cohden 
 
 306 
 
 E. V. Denio 
 
 389 
 
 R. 1). Cockhnm 
 
 424, 427 
 
 R. V. Dent 
 
 1198 
 
 R. V. Cockcroft 
 
 331, 1213 
 
 R. V. Derby 
 
 923 
 
 R. V. Cockin 
 
 154 
 
 R. ■(). Derbyshire 
 
 923 
 
 R. V. Cohen 
 
 341 
 
 R. V. Derrington 
 
 739 
 
 E. V. Cole 
 
 305 
 
 R V. De Salvi 
 
 1428 
 
 E. V. Coleman 
 
 1556 
 
 R. V. Despard 
 R. V. Devlin 
 
 814 
 
 E. K. Coleorton 
 
 674, 675 
 
 739 
 
 R. V. Colerne 
 
 923 
 
 E. V. Dewhurst 
 
 7?3 
 
 E. V. Colley 
 
 1174 
 
 E. V. Dilmore 
 
 416, 434 
 
 E. ■„. Collier 
 
 307 
 
 E, v. Dingier 
 
 430 
 
 B. V. Colmer 
 
 768 
 
 R. V. Dingley 
 
 736, 739, 744 
 
 R. V. Com. of Se^ys. for T 
 
 . Hamlets 
 
 R. V. Dixon 
 
 97, 129, 781, 1233 
 
 
 1262 
 
 E. 0. Doherty 
 
 735, 1151 
 
 R. V. Compton 
 
 257, 1431 
 
 E. V. Dqoling 
 
 1236 
 
 K. 0. Connell 
 
 1428 
 
 E. V. Doran 
 
 379 
 
 R. V. Conning 
 
 1306 
 
 R. r. Dossett 
 
 318 
 
 E. V. Conolly 
 
 199 
 
 E. v. Douglas 
 
 441, 442, 452, 1306 
 
 R. V. Cook 
 
 1173, 1230 
 
 R. r. Dowlin 
 
 472 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 
 
 PAGE 
 
 
 PAGE 
 
 E. V. Dowling 
 
 267 
 
 268 
 
 E. V. Farler 
 
 812, 813 
 
 R. V. Downham 
 
 
 399 
 
 E. V. Farley 766, 767, 777, 782 
 
 E. V. Downing 
 
 
 733 
 
 E. V. Farrell 
 
 427 
 
 E. V. Dowushire, Dow. March. 
 
 of. 
 
 268 
 
 E. V. Farrington 
 
 98 
 
 R. V. Doyle 
 
 
 739 
 
 E. V. Feargus O'Connor 267 
 
 E. ■!;. Drew 
 
 732 
 
 742 
 
 R. V. Fearshire 
 
 363, 753 
 
 E. D. Drummond 
 
 605 
 
 , 608 
 
 R. V. Felton 
 
 745 
 
 E. V. Drury 
 
 
 1443 
 
 E. V. Ferrers, E. of. 
 
 1152 
 
 E. V. Duffin 
 
 
 99 
 
 R. V. Ferry Frystone 
 
 488, 549 
 
 E. «. Dukinfield 
 
 
 593 
 
 E. V. Finacane 
 
 307 
 
 E. V. Dulwicli College 
 
 
 1005 
 
 E. V. Firth 
 
 305 
 
 E. V. Dunboyne, Ld. 
 
 
 94 
 
 E. V. Fisher 
 
 753 
 
 E. V. Duncombe 
 
 
 1187 
 
 E. V. Fitzgerald 
 
 611, 1331, 1480 
 
 B. V. Dungey 
 
 
 1429 
 
 E. V. Fitzsimons 
 
 370 
 
 E. 11, Dunmurry 
 
 
 276 
 
 E. V. Flaherty 
 
 375 
 
 E. V. Dunn 307 
 
 318 
 
 , 733 
 
 R. V. Flatley 
 
 1203 
 
 E. I). Dunne 
 
 
 1254 
 
 E. V. Fleming 
 
 732, 742 
 
 E. V. Dunsford 
 
 
 60 
 
 E. V. Flemming 
 
 430, 438 
 
 E. V. Dimstan 
 
 
 54 
 
 E. V. Fletcher 
 
 730 
 
 E. V. Durham 
 
 
 812 
 
 E. V. Flintshire 
 
 960, 1002 
 
 E. V. Durkin 
 
 
 1058 
 
 E. ^. Folkes 
 
 308 
 
 E. V. Durore 
 
 
 255 
 
 R. V. Fontaine Moreau 
 
 1417, 1418 
 
 R. «. Dwyers 
 
 
 751 
 
 E. V. Forbes 
 
 317, 431 
 
 E. V. East Count. Ey. Co. 
 
 
 1265 
 
 E. V. Ford 
 
 1221 
 
 R. c. East Fairley 
 
 
 388 
 
 E. V. Fordingbridge 
 
 180, 389 
 
 E. V. East Mark 
 
 
 148 
 
 E. V. Forester 
 
 609, 610 
 
 E, V. East Winch 
 
 
 674 
 
 E. V. Forster 
 
 317 
 
 E. V. Eaton 
 
 
 269 
 
 E. </. Forsyth 
 
 23, 271 
 
 E. V. Ebrington 
 
 
 1433 
 
 E. u. Foster 
 
 499, 730, 749 
 
 R. V. Edgar 
 
 
 728 
 
 E. V. France 
 
 432 
 
 E. V. Edge 
 
 
 339 
 
 E. u, Francis 
 
 318 
 
 R. V. Edmonton 
 
 
 137 
 
 R. V. Francklin 
 
 1388 
 
 E. V. Edmunds 416 
 
 424 
 
 , 683 
 
 E. V. Eraser 
 
 1140 
 
 E. V. Edmundson 
 
 
 340 
 
 E. V. Frederick 
 
 1146 
 
 E. V. Edwards 254, 500, 1209, 
 
 1221, 
 
 E. V. Freeman 
 
 342 
 
 
 
 1230 
 
 E. V. Fretwell 
 
 98 
 
 E. V. Edwinstowe 
 
 
 674 
 
 E. V. Freind 1073, 
 
 1223, 1224, 1230 
 
 E. V. Egerton 
 
 
 310 
 
 E. 1.. Frost 246, 27 r, 
 
 1062, 1153, 1154, 
 
 E. V. Eldershaw 
 
 
 121 
 
 
 1168, 1169 
 
 E. V. Elderton 
 
 
 4 
 
 R. V. Fullarton 
 
 245, 246 
 
 E. V. EUel 
 
 
 1442 
 
 E. V. Fuller 
 
 156 
 
 R. V. EUicombe 379 
 
 401 
 
 , 407 
 
 E. V. FuUford 
 
 54 
 
 R. V. Elliott 
 
 
 277 
 
 R. V. Furnival 
 
 259 
 
 E. V. EUis 300, 305, 306, 
 
 310, 
 
 739, 
 
 E, V. Fursey 
 
 311, 396 
 
 
 
 1140 
 
 R. V. Gadbury 
 
 322 
 
 R. V. Elwprthy 
 
 
 407 
 
 R. «. Gallagher 
 
 1140 
 
 R. V. Ely, Bp. of. 
 
 
 1263 
 
 R. V. Galviu 
 
 432 
 
 E. V. Emmons 
 
 
 1059 
 
 E, V. Garbett 759, 
 
 1223, 1227, 1234 
 
 E. V. Enoch 
 
 732 
 
 , 743 
 
 E. V. Gardiner 
 
 805 
 
 R. V. Entrehman 
 
 
 1164 
 
 E. V. Gardner 
 
 671, 1389 
 
 E. V. Eriswell 415, 423, 430, 
 
 438, 
 
 489, 
 
 E. V, Garner 
 
 306, 732, 742 
 
 
 523 
 
 , 549 
 
 E. V, Gaunt 
 
 1467 
 
 R. V. Erith 
 
 548 
 
 , 549 
 
 R. V. Gay 
 
 611 
 
 E. V. Errington 
 
 430 
 
 , 609 
 
 R, V. Gaynor 
 
 805, 808 
 
 E. I). Esdaile 
 
 
 1558 
 
 E. V. Gazard 
 
 790 
 
 E. V. Esop 
 
 
 97 
 
 E, V. Geach 
 
 98 
 
 E. V. Evans 
 
 258 
 
 , 276 
 
 E. V. Geering 
 
 306, 318 
 
 E. V. Evenwood Barony 
 
 
 1442 
 
 E. u. Genge 
 
 75 
 
 R. V. ExaU 
 
 154 
 
 , 156 
 
 E. -u. Gibbons 
 
 733, 735, 770 
 
 E. V. Exeter 
 
 581 
 
 , 582 
 
 E. V. Gibney 
 
 737, 739, 740 
 
 E. V. Exeter, Treasurer of, 
 
 
 1050 
 
 R. V. Gibson 
 
 1404 
 
 R. V. Fagent 
 
 60S 
 
 , 611 
 
 E. V. Giddins 
 
 308 
 
 R. V. Pairie 
 
 318, 
 
 1422 
 
 R. V. Gilham 737, 758, 770, 771, 
 
 E. V. Fanning 
 
 
 181 
 
 
 1164 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 Gillbrass 
 
 Gillia 
 
 Gillow 
 
 Gilson 
 
 Girdwood 
 
 Gisburn 
 
 Gisson 
 
 Glasaie 
 
 Gleed 
 
 Glynne 
 
 Goldshede 
 
 Goldsmith 
 
 Goodere 
 
 Goodwin 
 
 Gordon 
 
 Gordon, Ld. G. 
 
 Gould 
 
 Grady 
 
 Graham 
 
 Grant 
 
 Gray 
 
 Great Bolton 
 
 Great Canfield 
 
 Green 317, 738, 740, 741, 748 
 
 Greenaway 1033, 1068, 1108 
 
 E. V. 
 E. V. 
 R. u 
 n. u. 
 
 R. II. 
 E. V. 
 E. V. 
 E. V. 
 E. V. 
 E. V. 
 R. V. 
 R. V. 
 R. V. 
 R. V. 
 E. V. 
 
 E. V. 
 E. V. 
 E. 1). 
 E. 1). 
 E. V. 
 R. 1). 
 R. V. 
 E. r. 
 E. u 
 R. V. 
 E. u 
 
 R. 'f. 
 
 E. V. 
 E. ■!;. 
 R. V. 
 R. i>. 
 E. 1). 
 E. V. 
 E. ■!). 
 
 R, u. 
 E. i>. 
 
 E. ■!). 
 
 R. u 
 E. v. 
 E. 1). 
 E. V. 
 R. ■«. 
 E. u 
 E. V. 
 E. 1). 
 R. V. 
 E, V. 
 R. 'c 
 R. V. 
 R. D. 
 E. V. 
 
 E. y. 
 
 E. ti. Hardy 
 
 PAGE 
 
 1058 
 739, 756, 758 
 100 
 379 
 62 
 414, 1170 
 1429 
 1146 
 1150 
 1467 
 757 
 103 
 1173 
 179 
 179, 388, 1313, 1514 
 
 506, 1153, 1223, 
 
 1224 
 
 156, 760 
 
 431 
 
 254, 278 
 
 1466 
 
 308, 318, 607 
 
 1442 
 
 268 
 
 1387 
 
 278 
 
 737, 760, 772 
 
 742, 1221 
 
 1331 
 
 121 
 
 272 
 
 1402, 1407 
 
 1185 
 
 23 
 
 245, 272 
 
 1168 
 
 130, 762 
 
 259 
 
 424, 497 
 
 319, 4-22 
 
 751 
 
 1294, 1312, 1325, 1335 
 
 155 
 
 613, 730, 739, 753 
 
 1149 
 
 E. V. 
 E. V. 
 E. V. 
 E. V. 
 
 Greene 
 Gregory 
 Griffin 
 Griffiths 
 Grimwood 
 Groombridge 
 Grove 
 Grunden 
 Guinea 
 Gully 
 Gumble 
 Gurney 
 Gutch 
 Guthrie 
 Guttridge 
 Hagan 
 Haines 
 Hains 
 Hale 
 Hall 
 Halliday 
 
 Hammond Page 1393 
 
 Hamp 402 
 
 Handcock 1224 
 
 Hankins 401, 781 
 
 Hanson 98 
 
 Hapgood & Wyatt 260 
 
 Harbome 129, 208 
 
 Harding 743 
 
 Hardwick 510, 511, 632, 633, 
 
 637, 735 
 319, 506, 509, 510, 791, 
 792, 1185, 1204 
 Hare 806 
 
 Hargrave 8 1 2 
 
 Harringworth 1532 
 
 Harris 155, 317, 318, 323, 364, 
 433, 742, 743, 752, 808, 1204 
 
 E. V. 
 R. V. 
 E. V. 
 R. ■». 
 E. V. 
 E. V. 
 R. 1). 
 R. V. 
 R. V. 
 R. V. 
 E. V. 
 R. V. 
 E. V. 
 R. V. 
 E. V. 
 E. 0. 
 R. -u. 
 E. V. 
 R. V. 
 E. V. 
 E. V. 
 E. V. 
 R. V. 
 R. V. 
 R. V. 
 E. V. 
 E. -0. 
 R. V. 
 R. 11. 
 E. V. 
 E. V. 
 R. 1). 
 R. V. 
 E. V. 
 R. V. 
 E. V. 
 R. V. 
 E. V. 
 R. V. 
 R. ■!). 
 R. 1). 
 R. V. 
 E. V. 
 E. 0. 
 R. 0. 
 R. II. 
 R. V. 
 E. 1). 
 K. V. 
 R-v. 
 E. n. 
 R. V. 
 R. f, 
 R. ^. 
 R. 0. 
 
 R. ■!). 
 
 E. V. 
 
 E. i;. 
 
 R. 11. 
 
 R. V. 
 
 R. f. 
 
 R. V. 
 
 R. •(.. 
 
 R. .). 
 
 PAGE 
 
 HaiTison 317, 424, 438, 1261 
 
 Harvey 133, 340, 427, 1439 
 
 Hartington Mid. Quart. 1405, 1434 
 
 Haslingfield 
 
 Hastings 
 
 Hatfield 
 
 Haughton 
 
 Hawes 
 
 Hawkins 
 
 Haworth 
 
 Hay 
 
 Hay, Dr. 
 
 Hayes 
 
 Haynes 
 
 Hayward 
 
 Hazell 
 
 Hazy 
 
 Healey 
 
 Hearn 
 
 Heame 
 
 Heath 
 
 Hebden 
 
 Helling 
 
 Henderson 
 
 Hendon 
 
 Henwood 
 
 Herefordshire Js. 
 
 Herrington 
 
 Herstmonceaux 
 
 Hervey 
 
 Hewett 
 
 Hewins 
 
 Heydon 
 
 Hickling 
 
 Hickman 
 
 Higgins 
 
 Highfield 
 
 Higson 
 
 Hill 
 
 Hillam 
 
 Hinckley 
 
 Hind 
 
 Hinley 
 
 Hinxman 
 
 Hirst 
 
 Hodge 
 
 Hodgkiss . 
 
 Hodgson 
 
 Hogg 
 
 Hold en 
 
 Hollingberry 
 
 Hollond 
 
 1320 
 
 812 
 
 137 
 
 108, 1408, 1444 
 
 1478 
 
 128, 339 
 
 370, 407, 408, 758 
 
 772 
 
 210 
 
 354 
 
 267 
 
 609, 782 
 
 159 
 
 339, 358 
 
 255 
 
 730, 738, 751 
 
 732 
 
 1158 
 
 107, 1413 
 
 1181, 1182 
 
 159, 160 
 
 1428 
 
 573 
 
 305 
 
 1254 
 
 1466 
 
 869 
 
 1439 
 
 732, 735, 737, 753 
 
 242. 247 
 
 1264 
 
 1397, 1402, 1407 
 
 255 
 
 729, 730 
 
 757 
 
 749 
 
 98, 258, 1155 
 
 757, 1229 
 
 158, 391 
 
 606 
 
 307 
 
 753 
 
 749, 753 
 
 84 
 
 321, 1203 
 
 278, 331, 1213, 1230 
 
 276, 424 
 
 1204, 1221 
 
 256 
 
 267 
 
 Holmes & Furness 331, 1212, 1213 
 Holmes 743, 1157 
 
 Holt 23, 30, 99, 318, 1284, 1389 
 Holy Trinity, Hull 368 
 
 Hood 1146 
 
 Hook 808 
 
 Hooper 753 
 
 Hopes 751 
 
 Home 354, 355 
 
 Home Took 680, 1180, 1546 
 
 Hostmen of Newcastle 1260,1263 
 
TABLE OF CASES CITED. 
 
 Ixxvii 
 
 
 
 PAGE 
 
 
 PAOB 
 
 R, V. Hough 
 
 
 317 
 
 R. V. Kinloch 
 
 1155 
 
 E. V. Houlton 
 
 
 1147, 1151 
 
 R. V. Kinsey 
 
 1062 
 
 E. V. Howard 
 
 
 178 
 
 E. V. Kitson 
 
 379, 401, 407 
 
 E. V. Howell 
 
 
 609, 610 
 
 E. V. Knaptoft 
 
 1434 
 
 B. V. Howes 
 
 
 736 
 
 R. V. Knill 
 
 808 
 
 E, V. Hucks 
 
 
 34, 60 
 
 E. V. KnoUys 
 
 28 
 
 E. V. Huet 
 
 
 753 
 
 E. V. Koops 
 
 1323 
 
 E. V. Hughes 
 
 198, 
 
 273, 310, 1293 
 
 E, V. Laindon 
 
 959 
 
 E. V. Hulcott 
 
 
 159, 1439 
 
 E. V. LaJlement 
 
 246 
 
 E. V. Hull 
 
 
 93 
 
 R. V. Lamb 
 
 753 
 
 E. V. Hulme 
 
 
 1226 
 
 R. V. Lambe 
 
 740 
 
 E. V. Humphries 
 
 
 407 
 
 E. V. Lambeth 
 
 823 
 
 E. V. Hunt 98 
 
 , 256 
 
 319, 377, 507 
 
 E. V. Lancashire 
 
 1442 
 
 E. V. Hunter 
 
 
 773 
 
 E. V. Landulph 
 
 135 
 
 E. V. Huntley 
 
 
 1429 
 
 R. V. Langbridge 
 
 432 
 
 E. V. Hurley 
 
 
 368 
 
 R. V. Langmead 
 
 154 
 
 E. V. Hutchinson 
 
 
 606 
 
 R. V. Langton 
 
 181, 377, 1183 
 
 E. V. Hyde 
 
 
 432 
 
 R. V. Larkin 
 
 246 
 
 E. V. lies 
 
 
 363, 1393 
 
 R. V. Laugher 
 
 732, 743 
 
 R. V. Ingham 
 
 
 270, 273 
 
 E. V. Lavey 
 
 54 
 
 E. V. Ingi-am 
 
 
 199 
 
 E- V. Lavin 
 
 740, 1174 
 
 E. V. Ings 
 
 
 397 
 
 E. V. Layer 753, 
 
 804, 1230, 1237 
 
 E. V. Isle of Ely 
 
 
 26 
 
 E. V. Leatham 
 
 1226, 1233 
 
 R. V Jackson 
 
 
 257, 808, 1140 
 
 R. V. Ledbetter 
 
 417 
 
 R. x;. Jacohs 
 
 
 363, 753 
 
 R. V. Lee 416, 435 
 
 , 434, 805, 1212 
 
 R. V. Jagger 
 
 
 1151 
 
 R. V. Leeds 
 
 1442 
 
 E. V. James 
 
 
 1209 
 
 E. V. Leicester Js. 
 
 1257, 1258 
 
 E, V. JaiTald 
 
 
 268 
 
 R. V. Leigh 62S 
 
 , 531, 633, 1408 
 
 E. V. Jarvis 100 
 
 , 156 
 
 3S9, 743, 812 
 
 R. V. Leonard 
 
 258 
 
 E. V. Jeffries 
 
 
 30, 1279 
 
 R. V. Leominster 
 
 924 
 
 R. v. Jellyman 
 
 
 1151 
 
 R. V. Levy 
 
 270, 807, 1354 
 
 E. 11. Jenkins 
 
 
 609, 761 
 
 R. V. Lewen 
 
 1050 
 
 R. v. Jennings 
 
 
 257, 1431 
 
 R. V. Lewis 100, 317, 
 
 756, 1046, 1050, 
 
 E. u. Jeyes 
 
 1046, 1048, 1050 
 
 
 1209, 1230 
 
 E. V. John 
 
 
 609 
 
 E. ■». Lightfoot 
 
 1141 
 
 E. V. Johnson 187, 
 
 388, 
 
 432, 497, 751, 
 
 E. V. Lilleshall 
 
 203 
 
 
 
 752, 1050 
 
 R. V. Lingate 
 
 786 
 
 R. 17. Johnston 
 
 
 739 
 
 E, V. Little 
 
 159 
 
 E. V. Johnstone 
 
 
 255 
 
 R. t). Liverpool, Mayor 
 
 of 1439 
 
 R V. Jollitfe 
 
 
 414, 471, 1289 
 
 E. V. Llanfaethly 
 
 409 
 
 E. V. Jones 23, 27, 88, 8E 
 
 , 99, 129, 178, 
 
 R. V. Llangunnor 
 R. V. Lloyd 
 
 959 
 
 184, 255, 
 
 307, 
 
 443, 472, 729, 
 
 606, 738 
 
 730, 732, 
 
 742, 
 
 743, 753, 782, 
 
 R. V. Lockhart 
 
 760 
 
 812, 1048, 1059, 1062, 1533 
 
 E. «. LoUey 
 
 1447 
 
 R. V. Jordan 
 
 
 121, 354 
 
 E. u. Lond. & St. Kath 
 
 Dock Co. 1271 
 
 E. I). Kea 
 
 
 800 
 
 E. V. Lond. & North- "West Ry. Co. 1401 
 
 R. 0. Kealey 
 
 
 255 
 
 E. 0. Lond. & South Coast By. Co. 673 
 
 E. V. Kelly 
 
 
 273 
 
 R. V Long 
 
 ■306, 740 
 
 E. V. Kelsey 
 
 
 1050 
 
 R. V. Long Buckby 
 
 159, 161 
 
 E» V. Kenilworth 
 
 
 390, 1402 
 
 E. V. Loom 
 
 275 
 
 E. V. Kenny 
 
 
 199 
 
 E. V. Loughran 
 
 1124 
 
 R. V. Js. of Kent 
 
 
 922 
 
 R, ■». Lower Heyford 
 
 573 
 
 E. V. Kerne 
 
 
 671 
 
 R. V. Lubbenham 
 
 1479 
 
 E. V. KeiT 
 
 
 739 
 
 R. u. Lucas 
 
 1259 
 
 R. V. Kiddy 
 
 
 431 
 
 R. V. Luckhurst 
 
 732, 737, 741 
 
 E. V. Killminster 
 
 
 94 
 
 R. V. Lnffe 23, 123, 799, 800 
 
 E. 11. Kimber 
 
 
 750 
 
 R. V. Lumley 
 
 129, 205 
 
 E. V. King 
 
 126S, 1330, 1337 
 
 R, V. Lunny 
 
 497 
 
 E. 11. Kinglake 
 
 
 1233 
 
 R. V. Lydeard St. Lawrence 1108 
 
 E. V. Kingsclere 
 
 
 1442 
 
 R. V. Lyon 
 
 268 
 
 R. v. Kingston, Duch. of 
 
 679, 1402, 
 
 R. V. M'Anerney 
 
 277 
 
 1403, 1417, 1433, 1435 
 
 E. V. Macclesiie'ld 
 
 1442 
 
 E. V. Kingston 
 
 307 
 
 , 732, 733, 742 
 
 E. V. Macclesfield, Ld. 
 
 1223 
 
 R. V. Kinloch, Sir A 
 
 . Goidon 1180 
 
 R. V. M'Catterty 
 
 609 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 E. 
 R. 
 E. 
 E. 
 E. 
 E. 
 E. 
 R. 
 E. 
 E, 
 E. 
 E. 
 E. 
 
 E. 
 E. 
 E. 
 E. 
 
 E. 
 E. 
 E. 
 E. 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. ■ 
 
 E. 
 
 K. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 R 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E, 
 
 E. 
 
 E. 
 
 R. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 E. 
 
 B. 
 
 E. 
 
 
 PAGE 
 
 PAQE 
 
 . V. M'Conkey 
 
 273 
 
 E. V. Musoot 806 
 
 . V. M'Cne 
 
 1417 
 
 E. V. Mussou 136 
 
 . V. M'Cnlley 
 
 275 
 
 E. V. Mytton 522, 563 
 
 . V. M 'Donald 
 
 1293 
 
 E. V. Napper 268 
 
 . V. M'GoTern 
 
 753 
 
 E. V. Neal 814 
 
 . V. Machen 
 
 1443, 1466 
 
 E. V. Nether Hallam 1444 
 
 . V. M'Hngh 
 
 756 
 
 R. V. Netherthong 106, 665 
 
 . 1). Mackay 
 
 609 
 
 E. V. Neville 246, 716, 718 
 
 ■1). McKenna 
 
 255, 605 
 
 E. V. Newboult 279 
 
 ■0. Maopherson 
 
 256 
 
 R. V. Newman 677, 763, 1174, 1314 
 
 V. M'Pherson 
 
 259 
 
 E. V. Newton 178, 375, 432 
 
 V. Magill 
 
 740, 814 
 
 E. V. Nicholas 488 
 
 V. Mainwaring 94 
 
 , 157, 317, 1336, 
 
 E. V. NichoUs 318 
 
 
 1340 
 
 E. V. Nicolas 609 
 
 V. Mallett 
 
 748 
 
 E. V. Nisbett 317 
 
 V. Maiming 
 
 198 
 
 E. V. Noakes 814 
 
 V. Mansfield '123, 129, 551, 799 
 
 E. V. North Bedbum 392 
 
 V. Mariquita & New 
 
 Granada Mining 
 
 R. V. Northleach feWitney Roads Trustees 
 
 Co. 
 
 1270 
 
 1265 
 
 V. Marley 
 
 258 
 
 R. v. North Petherton 1479 
 
 V. Marsden 
 
 355 
 
 R. u. Norton 277 
 
 ■u. Marsh 
 
 794 
 
 R. -v. Norwich Road Trustees 1439 
 
 V. Marshall 
 
 423 
 
 R. V. Nuneham Courtney 488 
 
 V. Martin 273, 322 
 
 331, 485, 1212, 
 
 R. V. Nute 737 
 
 
 1330, 1482 
 
 R. V. O'Coigly 1230 
 
 V. Mashiter 
 
 969 
 
 R. V. O'Connell 371, 377, 506, 508, 792, 
 
 V. Mathews 
 
 266 
 
 1184 
 
 V. Mayhew 
 
 806 
 
 R. V. Oddy 318 
 
 V. Mazagora 
 
 98 
 
 R. V. O'Donnell 1062, 1140, 1141 
 
 V. Mead 
 
 606, 1152 
 
 E. u. Ogilvie 254 
 
 V. Medley 
 
 130 
 
 E. V. Oliver 259 
 
 V. Megson 
 
 497, 609 
 
 R. V. Oluey 959 
 
 V. Merceron 
 
 758 
 
 R. v. Omant 427 
 
 V. Merch.Tailoa-s' Co. 
 
 1258, 1259, 1260 
 
 R. V. O'NeUl 269 
 
 V. Merthyr TidvU 
 
 865 
 
 R. V. Onslow and Whalley 1123 
 
 V. MiddlehuTst 
 
 256 
 
 R. V. Orchard 280, 1204 
 
 V. Middlesex 
 
 923 
 
 E. V. O'Reilly 740 
 
 V. Middlesex Js. 
 
 1256 
 
 E. u. Osborne 432, 497, 498 
 
 V. Midlam 
 
 1257 
 
 R. V. Otway 255 
 
 V. Millard 
 
 317 
 
 R. -v. Oulton 203 
 
 V. Miller 
 
 23, 433 
 
 R. 1). Owen 61, 196, 269, 754, 766 
 
 V. Mills 
 
 732, 742 
 
 R. a. Oxford- 255, 273 
 
 V. Milne 
 
 1168 
 
 R. V. Packer 753 
 
 V. Milnes 
 
 1287 
 
 R. V. Padstow 367 
 
 V. Milton 
 
 630 
 
 E. V. Page 103, 1313 
 
 V. Minton 
 
 255, 609 
 
 R. V. Pain 169 
 
 V. Mitchell 
 
 179, 269, 1431 
 
 R: V. Paine 430, 1046 
 
 V. Mdckford 
 
 156 
 
 E. V. Painter 431 
 
 V, Mogg 
 
 318 
 
 E. -0. Palmer 1221 
 
 V. Moore 
 
 732, 753 
 
 E. V. Pamenter 740 
 
 V. Moores 
 
 813 
 
 R. V. Parker 93, 482, 732, 806, 809, 1242 
 
 ■ii. Moors 
 
 378 
 
 R. V. Parratt 732, 742 
 
 ■0. Morgan 
 
 376 
 
 R. V. Parry 808, 1253, 1426 
 
 ■V. Morris 159, 270, 1287, 1428, 1432 | 
 
 E. V. Parsons 1354 
 
 ■1). Morse 
 
 751 
 
 R. 0. Partridge 154, 742 
 
 ■0. Mortlock 
 
 405, 407 
 
 R. V. Payne 1140 
 
 '0, Morton 
 
 389, 732, 742 
 
 E. -0. Peace 278 
 
 ■0, Mosey 
 
 760 
 
 R. V. Peacock 426 
 
 V. Mosley 
 
 273, 609, 610 
 
 R. V. Pearce 810, 1152 
 
 ■i>. Mothersell 
 
 1331, 1484 
 
 R. V. Peat 1148 
 
 V. Mudie 
 
 806 
 
 E. V. Pedley 1189 
 
 1!. Murlis 
 
 1202 
 
 E. V. Peel 610, 1221 
 
 V. Mnrphy 9P, 179 
 
 506, 508, 609, 
 
 R. V. Pegler 1223 
 
 117.'3, 1177, 121 6, 1 
 
 240, 1420, 1546 
 
 R. I: Puuge 1442 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 E, V. Perkin 
 
 K. V. Perkins 
 
 E. V. Perranzabuloe 
 
 E. V. Perry 
 
 E. V. Petckerini 
 
 E. V. Petrie 
 
 E. V. Philips 
 
 PAGE 
 
 1167 
 
 609 
 
 1002, 1442 
 
 1146 
 506 
 148 
 121 
 
 K. V. Phillips 255, 317, 363, 753 
 
 E. V. PhiUpott 1324 
 
 E. V. Philp 98 
 
 E. V. Piokford 62 
 E. V. Pioton 63, 1196, 1197 
 
 E. V. Piddlehinton 393 
 
 E. V. Pike 608 
 
 E. •«. Pikesley 750, 754 
 
 E. 0. Pilgrim 1074 
 
 E. V. Pilkington 185 
 
 E. V. Pitcher 1209 
 
 E. V. Pitts 277 
 
 E. V. Plant 1428 
 
 E. V. Plumer 187, 430 
 
 E. i,. Pollard 198 
 
 E. V. Ponsonby 4 
 
 E. V. Pook 500 
 
 E. V. Poole 32 
 
 E. V. Potter 431 
 
 E. V. Pountney 732, 733 
 
 E. V. Povey 9, 1195 
 
 E. V. Powell 145 
 
 E. V. Pressly 749, 753 
 
 E. D. Preston 159, 1159 
 
 E. ■;;. Preston, Ld. 1252 
 
 E. V. Price 199, 1221 
 
 E. V. Pringle 24, 27 
 
 E. V. Pritchard 246 
 
 E. V. Puddifoot 275 
 
 E. V. Purefoy 438 
 
 E. V. Purnell 1264 
 
 E. V. Pye 255 
 
 E. ■». Qualter 609 
 
 B. V. Quigley 498 
 
 E. V. Eadley 255 
 
 E. V. Kamsbottom 1324 
 
 E. V. Ramsdeu 1186 
 E. V. Eatcliffe Culey 751, 1400, 1417 
 
 E. V. Kaudnitz 1296 
 
 E. V. Eawden 365, 389 
 
 K. V. Read 809 
 
 E. V. Eeader 1443 
 E. V. Eeading 751, 799, 800, 1228 
 
 E. V. Eeaney 610 
 
 E. V. Eearden 305 
 E. V. Eeason 611, 612, 743, 753 
 
 E. V. Eeed 363, 753 
 
 E. V. Eees 179, 739 
 
 E. V. Eeeve 743 
 E. t). Eeg. of Deeds for Middlesex 928 
 
 E. V. Eeid 759 
 
 E.. V. Beilly 1313 
 
 E. V. Ehodes 1331, 1480 
 E. V. Eiohards 268, 432, 736, 742, 1050 
 
 E. V. Eichardson 318, 792 
 
 • E. V. Rickman 156 
 
 R. V. Ridley 26S, 269 
 
 
 PAOB 
 
 R. V. Rigg 
 
 438 
 
 E. V. Eiley 
 
 433 
 
 E. 11. Eing 
 
 1068 
 
 E. B. Eishworth 
 
 542 
 
 E. V. Elvers 
 
 S63, 754 
 
 E. V. Roberts 
 
 325, 809 
 
 R. V. Robey 
 
 1051 
 
 E. V. Eobins 
 
 831, 1213 
 
 E. V. Eobinsoa 62, 276, 318, 1058, 1229, 
 1310, 1313, 1357 
 E. V. Roche 748, 759, 1457 
 
 E. v. Roddam 1074 
 
 E. V. Roden 306 
 
 R. V. Roebuck 318 
 
 E. V. Rogers 339 
 
 R. V. Rook 799 
 
 E. V. Eookwood 1237, 1239 
 
 R. 1). Rooney 311, 1062 
 
 B. V. Rosa Rue 735 
 
 R. B. Rosewell 1177, 1223 
 
 R. ». Rosier 736 
 
 E. V. Rosser 1158 
 
 R. V. Row 735 
 
 R. V. Rowland 1140 
 
 R. V. Rowley 472 
 
 R. V. Rowton sag, 320, 322 
 
 R. V. Rudd 1146 
 
 R. V. Rudge 1209, 1430 
 
 R. V. Russell 64 
 
 E. V. Eussell, Ld. J. 1066 
 
 R. V. Ruston 1156 
 
 R. i;. Ryan 99 
 
 R. V. Ryland 260 
 
 E. V. Eyle 454 
 
 E. V. Eyraer 195 
 
 E. V. Eymes 246 
 
 E. V. Ryton 106, 666 
 
 R. V. Sadler 1034 
 
 R. V. Saffron Hill 888, 389 
 
 R. o. St, Andrew, Pershore 185 
 
 R. V. St. Anne, Westminster 1441, 1443 
 E. V. St. Asaph, Dean of 32, 61 
 
 R. V. St. George 1241 
 
 R. V. St. George, Bloomsbury 1438 
 
 R. V. St. Giles 1538, 1545 
 
 E. V. St. Giles-in-the-Fields 674 
 
 R, V. St. John 268 
 
 R. V. St. Katherine 1479 
 
 R. V. St. Martin's, Leicester 369, 1183 
 
 1185 
 E. V. St. Mary, I^mbeth 1405, 1442 
 E. V. St. Mary, Marylebone 180, 1258 
 E. V. St. Mary Magdalen 158 
 
 E. V. St. Mary, Warwick 593 
 
 R. i/. St. Maurice 26 
 
 R. v. St. Michael's 751 
 
 R. V. St. Pancras 1408, 1444 
 
 R. V. St. Paul, Covent Garden 162 
 
 R. V. St. Weonard's 268 
 
 R. V. Salisbury 871 
 
 E. V. Salt 317 
 
 E. V. Salter 339 
 
 R. V. Sansome 750, 763 
 
 E. I'. Savage 375, 424, 1198 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 R. ii. Scaife 422, 
 
 425, 426, 611 
 
 E. v. 
 
 E. V. Scallan 
 
 609, 612 
 
 R. 11. 
 
 E. V. Scammonden 
 
 951, 959 
 
 R. V. 
 
 R. V. Schlesinger 
 
 1189 
 
 E. D. 
 
 R. V. Scott 757, 1006, 1229, 1322, 
 
 R. 1). 
 
 
 1323, Ih'rata 
 
 E. 11. 
 
 R. V. Searle 
 
 1193 
 
 E. V. 
 
 R. V. Sedgeley 
 
 60 
 
 E. V. 
 
 R. v. Sellers 
 
 610 
 
 E. X.. 
 
 R. V. Serjeant 1146, 1147, 1151 
 
 E. ■». 
 
 R. V. Serva 
 
 1165 
 
 R. V. 
 
 R. V. Sewell 
 
 1487 
 
 R. v. 
 
 R. 0. Sexton 
 
 738, 748 
 
 R. •!). 
 
 R. 0. Shaftesbury 
 
 1228 
 
 R. -!). 
 
 R. 11. Shaw 738, 740, 805, 1310, 1393 
 
 R. V. 
 
 R. V. Sheehan 
 
 812, 813 
 
 E. v. 
 
 R. v. Sheen 
 
 276 
 
 E. u. 
 
 R. V. Sheering 
 
 1046 
 
 E. •<.. 
 
 R. V. Shellard 
 
 1218, 1221 
 
 R. V. 
 
 R. V. Shelley 
 
 1258, 1264 
 
 E. V. 
 
 R. V. Shepherd 
 
 271, 732, 743 
 
 R. D. 
 
 R. V. Sheppard 
 
 98 
 
 R. i>. 
 
 E. i;. Sherman 
 
 1140 
 
 E. V. 
 
 R. V. Shipley 
 
 100 
 
 K. u* 
 
 R. 0. Shott 
 
 1430 
 
 E. v. 
 
 R. V. Shrimpton 
 
 322 
 
 R. 11. 
 
 R. ■». Sidney Westl'ey 
 
 1357 
 
 E. V. 
 
 R. V. Simons 
 
 220, 722, 740 
 
 R. D. 
 
 R. v. Simmonds 
 
 1203 
 
 R. ■!). 
 
 E. V. Simmonsto 
 
 375 
 
 R. D. 
 
 R. V. Simpson 
 
 26, 732 
 
 R. v. 
 
 R. v. Sippet 
 
 739 
 
 R. 11. 
 
 R. V. SiiTell 
 
 318 
 
 R. u. 
 
 R. 0, Skeen & Freemian 
 
 1226 
 
 R. V. 
 
 R. 11. Slaney 
 
 1223 
 
 R. •!). 
 
 R. V. Slaughter 
 
 733 
 
 R. 11. 
 
 R. V. Slawstone 
 
 923 
 
 R, 1). 
 
 R. V. Sleeman 
 
 732, 734, 7a7 
 
 
 R. V. Sleep 
 
 341 
 
 R, D. 
 
 R. V. Sloggett 
 
 757 
 
 R. n. 
 
 R. ». Sloman 
 
 1066, 1067 
 
 R,.. 
 
 E. V. Smallpiece 
 
 1261 
 
 R. V. 
 
 R. V. Smart 
 
 310 
 
 R. D. 
 
 R. V. Smith 62, 98, 198, 
 
 276, 317, 416, 
 
 R. V. 
 
 431, 611, 754, 781, 1146, 1310, 1313, 
 
 
 1417 
 
 
 R. v. 
 
 R. o. Smithies 
 
 762 
 
 R. V. 
 
 R. V. Somersetshire Js. 
 
 1438 
 
 R. V. 
 
 R. V. Sorarton 
 
 799 
 
 R. V. 
 
 R. V. South Holland Brainage 1440 
 
 E. v. 
 
 R. 11. Southamptoa 
 
 923 
 
 R. 0.. 
 
 R. 1). Sow 
 
 679, 1434 
 
 R. 11. 
 
 R. V. Spencer 
 
 733, 1287 
 
 R. u. 
 
 R. v. Spicer 
 
 275 
 
 K. -v. 
 
 R. V. Spilsbury 
 
 609, 738, 752 
 
 R. V. 
 
 E. V. Stafford 
 
 1188 
 
 K.11. 
 
 R. V. Staffordshire Jsi 
 
 1248, 1258 
 
 E,ii. 
 
 R. v. Stiiinforth 
 
 158, 159 
 
 R... V. 
 
 R, V. Stamper 
 
 113 
 
 R. 11. 
 
 E. v. Stanley cum "Wrenthorpe 674 
 
 R. v. 
 
 E. V. Stanton 
 
 1433 
 
 R. V. 
 
 E. v. Staple Fitzpaine 
 
 372 
 
 E. V. 
 
 R. u. Stapleton 
 
 198 
 
 \\. V. 
 
 E. -0. Steel 
 
 1155, 1156 
 
 E. V. 
 
 rAGE 
 
 Stephens 130 
 
 Stephenson 427, 433 
 
 Steptoe 730 
 
 Stevenson and Coulter 1140 
 
 Steventon 268 
 
 Stewart 1307 
 
 Stoke Golding 392 
 
 Stoke-upon-Trent 960, 975 
 
 Stokes 1221 
 
 Stone 339, 505 
 
 Stonyer 306 
 
 Stourbridge 390 
 
 Stourton 542 
 
 Strahan 1226 
 
 Strand Board of Works 135, 136 
 Stretch 1066 
 
 Stripp 749, 753 
 
 Stroner 1204 
 
 Stroud 276 
 
 Stubbs 812, 813 
 
 Sturge 245 
 
 Suddis 1402 
 
 Sullivan 1141 
 
 SuHs 278 
 
 Summers 255 
 
 Surrey 923 
 
 Sutcliffe 727 
 
 Sutton 4, 197, 522, 528, 1158, 1887 
 Swatkins 24, 732, 740 
 
 Sweeney 276 
 
 Swendsen 321 
 
 Tait 427 
 
 Tancock 1431 
 
 Tanner 203 
 
 TaiTant 749, 751, 753 
 
 Taverner 317 
 
 Taylor 259, 732, 734, 1050, 1163, 
 1203 
 
 Teal 1130 
 
 Tew 1176 
 
 Thanet, Earl of 790 
 
 Thistlewood 346, 372, 397 
 
 Thoman 271 
 
 Thomas 308, 431, 734, 742, 749, 
 1050, 1296, 1428 
 Thompson 273, 427, 732, 741 
 
 Thompson & others 1145 
 
 Thompson & Simpson 1146 
 
 Thornton 738, 739, 740, 741 
 
 Thring 
 
 1310, 1315 
 
 Thurscross 
 
 1478 
 
 Thurtell 
 
 760 
 
 Tinckler' 
 
 608, 611 
 
 Toakley 
 Tomlinsos 
 
 354 
 273 
 
 Tooke 
 
 1313 
 
 Toole 
 
 277, 743 
 
 Torpey 
 
 198 
 
 Totuess 
 
 159 
 
 Tower 
 
 1259 
 
 Towey 
 
 805 
 
 Town send 
 
 179 
 
 Treble 
 
 1516 
 
 Treharne 
 
 270 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 
 PARE 
 
 
 PAGE 
 
 R. V. Trenwyth 
 
 180 
 
 E. V. Wavertree 
 
 525 
 
 E. V. Trowbridge 
 
 674 
 
 E. V. Weaver 
 
 1336, 1340 
 
 R. V. Truenian 
 
 308 
 
 R. u. Webb 766, 1130, 1146; 1174 
 
 R. V. Tubby 
 
 758 
 
 R. V. Webster 
 
 246 
 
 R. V. Tuffs 
 
 781 
 
 R. V. Wedderbum 
 
 803 
 
 R. V. Tiirberfield 
 
 321 
 
 R. V. Weeks 
 
 317 
 
 R. V. Turner 273. 320, 
 
 321, 323, 344, 
 
 R. V. Welborn 
 
 609 
 
 345, 682, 761, 1287, 1400, 1417 I 
 
 R. V. Welcb 
 
 372 
 
 R. V. Turweston 
 
 256 
 
 R. V. Welland 
 
 275 
 
 R. V. Tutchin 
 
 61 
 
 R. V. Weller 
 
 431, 753 
 
 R. V. Twyning 
 
 128 
 
 R. 'u. Wells 
 
 813 
 
 R. V. Tyler 
 
 735 
 
 R. V. Welton 
 
 246, 277, 433 
 
 R. V. Tylney 
 
 781 
 
 R. V. Wenham 
 
 1370 
 
 R. u. Tymms 
 
 246 
 
 R. V. West, Dr. 
 
 1262 
 
 R. u. Udall 
 
 61 
 
 R. V. Westbury 
 
 923 
 
 R. V. Uezzell 
 
 269 
 
 R. V. Western 
 
 246 
 
 R. V. Ulner 
 
 433 
 
 R. V. Westley 
 
 246, 1357 
 
 R. V. Unkles 
 
 727 
 
 E. V. Wheater 
 
 757, 758 
 
 R. V. Upohuroh 
 
 732, 742 
 
 E. V. Wheatland 
 
 808 
 
 R. V. Upper Boddington 
 
 410, 772, 775 
 
 R. V. Wheeley 
 
 363, 754 
 
 R. V. Upton Gray 
 
 152, 158 
 
 R. V. Wheelock 
 
 1002, 1442 
 
 R. V. Upton-on-Severn 
 
 255, 268 
 
 R. V. Whiley 
 
 317 
 
 R. V. Upton St. Leonards 446 
 
 E. V. Whiston 
 
 158 
 
 R. V. Van Butohell 
 
 609, 610 
 
 R. V. Whitbread 
 
 1203 
 
 E. V. Vandercomb 259, 
 
 304, 1253, 1428 
 
 R. V. Whitchurch 
 
 158 
 
 R. V. Vane 
 
 804 
 
 E. V. White 111, 126, 1155, 1160, 
 
 R. V. Varlo 
 
 1006 
 
 
 1163 
 
 R. V. Vaughan 
 
 803, 1173 
 
 E. V. Whitehead 
 
 1169 
 
 R. V. Verelst 
 
 178 
 
 R. V. Whitehouse 
 
 1151, 1152 
 
 R. V. Vernon 
 
 732 
 
 R. V. Whitley Lower 
 
 633, 637 
 
 R. D. Vickery 
 
 1068 
 
 R. V. Whitworth 
 
 610, 611 
 
 R. 0. Vidil 
 
 428, 430 
 
 R. V. Wick St. Lawrence 
 
 1002, 1402, 
 
 R. V. Vincent 245, 
 
 495, 1203, 1404 
 
 
 1442, 1444 
 
 R. V. Virrier 
 
 806 
 
 R. V. Wickham 
 
 258, 959 
 
 R. V. Voke 
 
 318 
 
 R. V. Widdop 
 
 757 
 
 R. V. Wade 
 
 1155 
 
 R. V. Widecombe in the Moor 1442 
 
 R. V. Wainwright 
 
 500 
 
 E. V. Wigan 
 
 674 
 
 R. V. Wakefield 
 
 674, 1148, 1151 
 
 E. V. Wigley 
 
 806 
 
 E. V. Walker 276, 427, 
 
 498, 757, 1897, 
 
 R. V. Wild 
 
 737, 739 
 
 
 1433 
 
 E. v. Wilde 
 
 27 
 
 R 0. Walkley 
 
 730, 733 
 
 E. V. Wilkes 
 
 812, 813 
 
 R. V. Wall 
 
 423, 438 
 
 E. V. Wilkinson 
 
 364, 752 
 
 R. V. Wallace 
 
 23, 133 
 
 R. V. Williams 156, 199 
 
 255, 256, 258, 
 
 E. V. Walsb 
 
 431, 735, 742 
 
 271, 277, 309, 416, 433, 434, 1146, 
 
 E. V. Walter 
 
 130, 751 
 
 
 1183, 1191 
 
 E. V. Ward 
 
 54, 307, 1311 
 
 E. V. Willis 
 
 276, 726, 727 
 
 E. V. Wardle 
 
 255 
 
 R. V. Wilmett 
 
 341 
 
 E. V. Wardroper 
 
 198 
 
 R. V. Wilshaw 424 
 
 433, 438, 750 
 
 E. V. Wariokshall 
 
 760 
 
 R. V. Wilson 
 
 427, 739 
 
 E. V. Warman 
 
 273 
 
 R. V. Wilton 
 
 4-7 
 
 R. V. Warner 
 
 738 
 
 R. V. Wilts & Berks Can. 
 
 Co. 1257, 
 
 R. 0. Warringham 
 
 731, 732 
 
 
 1265 
 
 R. V. Warwickshire 
 
 923 
 
 R. V. Windsor 
 
 732 
 
 R. V. Washbrook 
 
 1436 
 
 R. V. Wink 
 
 497 
 
 R. V. Waters 103, 273, 276, 277 
 
 R. V. Winkworth 
 
 319 
 
 R. V. Watkins 
 
 753 
 
 E. V. Wiuslow 
 
 306, 318 
 
 R. V. Watkinson 
 
 788 
 
 R. V. Winsor, Charlotte 
 
 1140 
 
 R. V. Watson 155, 187 
 
 , 319, 378, 397, 
 
 E. V. Withers 
 
 30, 773, 1284 
 
 506, 507, 508, 509, 
 
 510, 680, 753, 
 
 E. V. Witney 
 
 158 
 
 791, 794, 804, 1154, 1168, 1169, 
 
 E. V. Woburn 
 
 633 
 
 1178, 1209, 1236, 1236, 1237, 1239, 
 
 E. V. Womersley 
 
 1059 
 
 1243 
 
 
 E. V. Wood 321, 339, 
 
 145, 743, 1036, 
 
 R. V. Watts 
 
 432 
 
 
 llfiS 
 
 E. V. Waverton 
 
 268 
 
 E. V. Woodcliester 
 
 1405, 1406 
 / 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 E. V. .Woodcook 34, 430, 605, 608, 609, 
 
 610, 612 
 R. V. Woodfall 34, 61, 133 
 
 R. u WoodhaU 259 
 
 E. V. Woodhead 1203, 1204 
 
 R. V. Woodley 412 
 
 E. V. "Woods 1241 
 
 E. V. Woodward 24, 267, 268 
 
 R. V. Wooldale 708, 996, 1010 
 
 R. V. Woolford 1429 
 
 R. V. Worcestel- 923 
 
 R. V. Worcestershire Js. 1439 
 
 R. 1). Worfield 185 
 
 R. V. Worth ■ 571, 572, 595 
 
 E. V. Wrangle 370 
 
 E. V. Wright 246, 1190, 1193, 1194 
 E. V. Wycherley 477 
 
 E. V. Wye 1405 
 
 R. V. Wylde 476, 1174 
 
 R. V. Wylie 306, 317 
 
 E. V. Yarwell 674 
 
 R. V. Yates 805, 806 
 
 R. V. Yeadon 259 
 
 R. V. Yeoveley 1002, 1311, 1442 
 
 E. V. Yewiu 1209, 1211, 1212 
 
 E. 1). Yore 1151 
 
 E. V. York, Mayor of, 1413 
 
 R. u. Young " 432, 751, 812 
 
 E. V. Zelicote 749 
 
 Rabey v. Gilbert 675 
 
 Rackham v. Marriott 906 
 
 Eadcliff V. Un. Ins. Co. 1388 
 
 Eadeliffe v. Fursman 778 
 
 Eadfordi). M'Intosh 182,672 
 
 Eadford v. Wilson 217 
 
 Eaggett V. Musgrave 681 
 
 Raikes v. Todd 854 
 
 Eainsford v. Smith 114 
 
 Eajah, The 214 
 
 Eajah of Coorg v. E. India Co. 797 
 
 Eamadge v. Ryan 1192 
 
 Earabert v. Cohen 376, 1183, 1184 
 
 Eambler v. Tryon 1190 
 
 Eamehurn MuUick v. Luckmeeohund 
 
 Radakissen 49 
 
 Eamsay v. Quinn 988 
 
 Eamsbotham v. Senior 788 
 
 Eamsbottom v. Buckhnrst 102 
 
 Ramsbottom v. Mortley 366, 369 
 
 Eamsbottom v. Tunbridge 366, 369 
 
 Eamsden v. Dyson 702, 707 
 
 Eamuz v. Crowe 394, 395 
 
 Ranclitfe v. Parkyns 666 
 
 Randall !). Gurney 1116, 1117, 1120 
 Randall v. Lynch ' 696, 1536 
 
 Randall v. Morgan 849, 867 
 
 Randall v. Newsun 986 
 
 Randall's case 1148 
 
 Eandell v. Trimen 990 
 
 Randle v. Blackburn 615 
 
 Randolph v. Gordon 563 
 
 Eand« v. Thomas 1130 
 
 Eanee Khujooroonissa v. Mussamut 
 
 Eoushun Jehan 180 
 
 
 PAGE 
 
 Eangeloy v. Webster 
 
 1451 
 
 Ranger v. Gt. West. Ry. Co. 1503 
 
 Rankin v. Horner 
 
 670 
 
 Rankin v. Tenbrook 
 
 580 
 
 Eann v. Hughes 
 
 836 
 
 Eansley, ex parte 
 Eaper v. Birkbeck 
 
 155 
 
 1521 
 
 Eaphael v. Bk. of England 
 
 796 
 
 Eapp V. Latham 
 
 626 
 
 Eashdall v. Ford 
 
 990 
 
 Eatclifife v. Eatcliffe & Anderson 1330, 
 
 
 1338 
 
 Eavee v. Farmer 
 
 1426 
 
 Ravenga v. Mackintosh 
 
 493 
 
 Eavenscroft v. Jones 
 
 1024 
 
 Ravensoroft v. Wise 
 
 695 
 
 Eawley V. Eawley 
 
 912 
 
 Eawlins v. Desborough 
 
 54, 333, 350 
 
 Eawlius V. Rickards 
 
 593, 900 
 
 Rawlins v. Turner 
 
 838 
 
 Ttawlins v. West Derby 
 
 922 
 
 Rawlinson v. Clarke 
 
 953 
 
 Rawlinson v. Oriel 
 
 1415 
 
 Raworth v. Marriott 
 
 170 
 
 Rawson v. Haigh 499, 
 
 500, 504, 505 
 
 Rawson v. Walker 
 
 961 
 
 Rawstorne v. Gandell 
 
 631 
 
 Ray V. Jones 
 
 597 
 
 Raymond, ex parte 
 
 153 
 
 Eayner v. AUhusen 
 
 1495 
 
 Read v. Coker 
 
 293 
 
 Read v. Dunsmore 
 
 232 
 
 Read v. Gamble 
 
 370, 407 
 
 Read v. Fash 
 
 864 
 
 Read v. Passer 
 
 495, 1327 
 
 Read o. Victoria St. & Pimlico Ey. Co. 
 
 
 1401 
 
 Eeade's case 
 
 717 
 
 Eeader v. Kingham 
 Eeadhead v. Midi. Ey. Co. 
 
 863, 865 
 
 980 
 
 Eearden v. Minter 
 
 1535 
 
 Eeay's estate 
 
 1531 
 
 Eedding v. Wilks 
 
 866 
 
 Eedford v. Birley 
 
 495, 507 
 
 Eedington v. Eediugton 
 
 850 
 
 Eeece v. Eigby 
 
 51 
 
 Eeece o. Ti-ye 
 
 778 
 
 Eeed v. Deere 
 
 367 
 
 Eeed v. Devaynes 
 
 175 
 
 Eeed v. Faii'less 
 
 1043 
 
 Reed v. Fenn 
 
 916 
 
 Eeed v. Jackson 102, 
 
 522, 524, 532, 
 
 
 1408 
 
 Reed v. James 
 
 1202, 1203 
 
 Eeed v. King 
 
 1199 
 
 Eeed v. Lamb 
 
 1331, 1558 
 
 Eeed v. Passer 
 
 377 
 
 Eees, Ke 
 
 886 
 
 Eees V. Bowen 
 
 1219 
 
 Rees V. Lloyd 
 
 145 
 
 Eees V. Overbaugh 
 
 1522 
 
 Eees V. Eees 
 
 171 
 
 Eees V. Smith 
 
 351 
 
 Eees V. Walters 
 
 564, 1417 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 Rees V. 'Williams 
 
 
 PAGE 
 1533 
 
 Reeside, Schooner, The 
 
 97S 
 
 , 995 
 
 Reeve v. Bird 
 
 
 844 
 
 Reeve v. Hodson 
 
 1317, 
 
 1336 
 
 Reeve v. Whitmore 
 
 
 620 
 
 Reeves. "Wood 
 
 
 1152 
 
 Reeve's Trusts, Re 
 
 
 175 
 
 Reeves v. Hearne 
 
 
 910 
 
 Reeves v. Lindsay 
 
 
 886 
 
 Reeves v. Slater 
 
 
 708 
 
 Reffell V. Reflfell 
 
 
 960 
 
 JRegicides, Trial of the 
 
 
 1158 
 
 Reid V, Batte 
 
 361, 366 
 
 , 368 
 
 Reid V. Dickons 
 
 
 698 
 
 Reid V. Langlois 
 
 774, 
 
 1501 
 
 Reid V. Margisoc 
 
 
 1293 
 
 Reid V. Teakle 
 
 
 199 
 
 Reidpath's case 
 
 
 187 
 
 Reidy v. Pierce 
 
 
 28 
 
 EeiUy v. Fitzgerald 
 
 536, 
 
 1404 
 
 Reimers v. Druce 
 
 
 1450 
 
 Remmett v. Lawrence 
 
 
 715 
 
 Reneaux v. Teakle 
 
 
 199 
 
 Renner v. Bank of Columbia 
 
 974 
 
 Rennie v. Clarke 
 
 
 705 
 
 Rennie v. Wynn 
 
 
 705 
 
 Resp. V. Fields 
 
 
 722 
 
 Resp. 0. McCarty 
 
 730, 746 
 
 Renter v. Electric Telegr. Co. 822, 826 
 Beuss V. Pioksley 861 
 
 Revell V. Blake 1462 
 
 Revis 1). Smith 1114 
 
 Rew V. Barber 984 
 
 Rew V. Hutohins 298, 465 
 
 Eeynell v. Lewis 705 
 
 Eeynell v. Sprye 779, 780, 785, 1604 
 Reyner v. Hall 719 
 
 Reyner v. Pearson 514 
 
 Reynolds, Re 900 
 
 Reynolds v. Fenton 9, 1449, 1451, 1452 
 Reynolds v. Harris 262, 264 
 
 Reynolds v. Reynolds 141 
 
 Reynolds v. Staines 1544 
 
 Reynoldson v. Perkins 638 
 
 Rhodes v. Airdale Drain. Com. 1467 
 Ricard v. "Williams 92 
 
 Rlcardo v. Garcias 1418, 1445, 1446, 
 
 1456 
 Riccard v. luclosure Commis. 1496 
 
 Rice, Re 889 
 
 Rice V. Rice 707 
 
 Rich V. Jackson 945, 953, 962 
 
 Richards v. Bassett 523, 535 
 
 Richards v. Bluck 237 
 
 Richards ■». Easto 294 
 
 Richards v. Gellatly 1496 
 
 Richards v. Goddard 1043, 1044 
 
 Richards v. Gogarty 570 
 
 Richards v. Hayward 280 
 
 Richards v. Johnston 684 
 
 Richards v. Lewis 389, 391, 1526 
 
 Richards v. Lond. & S. Coast Ry. Co. 
 
 250 
 Richards ■;;. Morgan 418 
 
 PARE 
 
 Richards v. Porter 858 
 Richards v. Richards 206, 316, 328 
 
 Richards v. Rose 139 
 
 Richardson v. Anderson 1284 
 
 Richardson v. Barry 905 
 
 Richardson v. Dubois 200 
 
 Richardson v. Gifford 837 
 Richardson «. Mellish 1327, 1330, 1331 
 
 Richardson v. Newcomb 1550 
 
 Richardson v. "Watson 941, 1003 
 
 Richardson v. "Williamson 990 
 
 Richardson v. "Willis 234, 1353 
 
 Richardson ii. Youuge 630 
 Riches & Marshall's Trust Deed, Re 193 
 
 Richey v. Garvey 380 
 
 Richmond v. Smith 195 
 
 Rickards v. Mui'dock 1193 
 
 Ricketts, Re 1095 
 
 Ricketts v. Bennett 193 
 
 Ricketts 1). Gurney 1115,1116 
 
 Ricketts v. Turquand 997 
 
 Rickford v. Ridge 43 
 
 Rickman v. Carstairs 1003 
 
 Rideouts Trusts, Re 799 
 
 Rider v. "Wood 7 
 
 Ridgeway v. Darwin 618 
 
 Ridgway v. Ewbank 332, 334 
 
 Ridgway v. "Wharton 867, 858 
 
 Ridley v. Gyde 499, 503 
 
 Ridley v. Ridley 869 
 
 Ridley v. Sutton -446 
 
 Rigden v. "Vallier 168 
 Rigg V. Curgenven 715, 717, 721 
 
 Rigge V. Burbidge 688, 1423 
 
 Right V. Darby 46 
 
 Riley -v. Baxendale 988 
 
 Riley v. Gerrish 962, 1527 
 
 Riley v. Home 979 
 
 Kipley, Re 949 
 
 Ripley v. "Warren 29 
 
 Ripon case 637 
 
 Ripon V. Davies 785 
 
 Rippon V. Priest 1471 
 Eishton V. Nesbitt 550, 1114, 1118 
 
 Rising V. Dolphin 930 
 
 Rist V. Faux 325 
 
 Ritchie v. Van Gelder 238 
 
 River Steamer Co., Re 902 
 
 Roach 1}. Garvan 1454 
 
 Robarts v. Tucker 713 
 
 Robb V. Connor 1042 
 
 Robb V. Starkey ^ 397 
 
 Roberts, ex parte 705 
 
 Roberts v. AUatt 1228, 1230 
 
 Roberts v. Bethell 177 
 
 Roberts v. Bradshaw 405 
 
 Roberts v. Doxon 413 
 
 Roberts v. Eddington 1487 
 
 Roberts v. Fortune 1401 
 
 Roberts v. Haines 138 
 
 Roberts v. Humphreys 344 
 
 Roberts v. Justice 664 
 
 Roberts ^■. Ogilby 710 
 
 Roberts v. Orchard 293 
 /2 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Roberta v. Phillips 890 
 
 Eoberts v. Roberts 901 
 
 Roberts v. Smith 988 
 
 Roberts v. Snell 239 
 
 Roberts v. Tucker 868 
 
 Roberts' case 735 
 
 Robertson v. French 141, 942, 943 
 
 Robertson v. Jackson 969, 992 
 
 Robertson v. Powell 895 
 
 Robertson v. Struth 102, 1446, 1458 
 
 Robins v. Bridge 1045 
 
 Robins v. Dolphin 1 447 
 
 Robinson's case 111 
 
 Robinson v. Anderson 192 
 
 Robinson i>. Brown 405, 406 
 
 Robinson v. Collingwood 178 
 
 Robinson v. Davison 990 
 
 Robinson v. Harman 696, 981 
 
 Robinson v. Hawksford 43 
 
 Robinson v. Kitchin 706 
 
 Robinson v. Markis 422, 455 
 
 Robinson v. MoUett 190 
 
 Robinson v. Nahon 703 
 
 Robinson v. Robinson 108 
 
 Robinson v. Robinson & Lane 729, 730 
 
 Robinson v. Scotney 618 
 
 Robinson ■!). Touray 1518 
 
 Robinson v. Vaughton 376 
 
 Robinson v. Ld. Vernon 361, 948 
 
 Robinson v. Ward 700 
 
 Robinson v. Yarrow 712, 713, 714 
 
 Eobison v. Swett 499, 1418 
 
 Robson V. Alexander 668 
 
 Robson «. Att.-Gen. 543,552 
 
 Robson V. Eaton 1411 
 
 Robson V. Kemp 639, 789 
 
 Robson V. N. East. Ey. Co. 50 
 
 Robson V. Rolls 502 
 
 Roch V. Callen 1027 
 
 Rochdale Can. Co. v. RadclifFe 263 
 
 Rochester, Dean and C. of, -u. Pierce 
 
 117, 824 
 
 Rochfort V. Sedley 653 
 
 Poddam v. Morley 167, 687, 915 
 Roden v. Lond. Small Arms Co. 997 
 
 Eoden v. Ryde 1544 
 
 Rodick V. Gandell 1501 
 
 Rodriques v. Melhuish 215 
 
 Eodriquez v. Tadmire 324 
 
 Eodwell V. Osgood 100 
 
 Rodwell V. Phillips 873, 874, 875 
 
 Rodwell V. Redge 12ti 
 Roe V. Birkenhead, Lane, & Ches. Junct. 
 
 Ey. Co. 824 
 
 Eoe i:. Davies 228 
 
 Eoe V. Davis 384 
 
 Roe V. Day 621 
 
 Roe V. Ferrara 623 
 
 Eoe V. Harrison 676 
 
 Roe V. Harvey 132 
 
 Eoe V. Hersey 103 
 
 Eoe V. Ireland 147 
 
 Eoe V. Minshal . 675 
 
 Eoe V. Parker 628, 530 
 
 PAGE 
 
 Roe V. Eawlings 105, 546, 569, 572, 1554 
 
 Eoe V. Eeade 152 
 
 Roe V. Wilkins 1536 
 Roe V. Archbp. of York 152, 841, 842, 
 
 843 
 
 Eoffey V. Henderson 817 
 
 Eoffey V. Smith 287 
 
 Rogers v. Allen 565 
 
 Rogers v. Custance 400 
 
 Bogers v. Goodenough 900 
 
 Rogers v. Hadley 948 
 
 Eogers ». Payne 953 
 
 Eogers tJ. Pitcher 120 
 
 Rogers v. Powell 810 
 
 Rogers v. Spence 848 
 
 Rogers v. Taylor 138, 139 
 
 Rogers v. Turner 1502 
 
 Rogers v. "Wood 520, 533 
 
 Rokeby Peer. 564 
 
 Roles V. Davis 236 
 
 Eolfu Dart 1293 
 
 Eollason v. Leon 834 
 
 EoUs V. Pearce 819 
 
 Eolt V. White 702 
 
 Eonayne v. Sherrard Errata 
 
 Eonkendorff v. Taylor 1481 
 
 Eooke V. Ld. Kensington 951 
 
 Eooker v. Eooker and Newton 181 
 
 Rookwood's case 305 
 
 Roos Barony 1279 
 
 Root V. King 329, 1388 
 
 Eopps V. Barker 1000 
 
 Roscommon Peer. 553, 555 
 
 Rose V. Blakemore 1235 
 
 Rose V. Bryant 591 
 
 Rose V. Cunynghame 859 
 
 Rose V. Himely 1446 
 
 Rose V. N. East. Ry. Co. 50 
 
 Rose i). Savory 615 
 
 Eoss V. Bruce 370 
 
 Ross V. Buhler 1158, 1159 
 
 Ross V. Burke 1064 
 
 Ross V. Clifton 293 
 
 Ross V. Gibbs 775 
 
 Ross V. Gould 36, 1514 
 
 Eoss V. Hill 194 
 
 Ross V. Lapham 329 
 
 Ross V. Parkyns 192 
 
 Rossiter v. Miller 856 
 
 Rouch V. G. W. Ry. Co. 502, 503, 505 
 Eougemont v. Eoyol Ex. Ass. Co. 448 
 
 Eoupell V. Haws 306, 788 
 
 Eoutledge v. Abbott 263 
 
 Eoutledge v. Hislop 1419 
 
 Eoutledge v. Ramsay 57, 58, 905 
 
 Rowan v. Jebb 720 
 
 Rowbotham v. Wilson 138 
 
 Eowcliffe V. Leigh 1499, Errata 
 
 Rowcroft V. Basset 592 
 
 Rowe V. Brenton 144, 300, 379, 672, 
 577, 678, 1316, 1321 
 
 Rowe V. Grenfel 5, 144 
 
 Rowe V. Osborne 380 
 
 Rowe V. Parker 300 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 
 PAGE 
 
 Rowe V. Rowe 
 
 1025 
 
 Rowe V. Tipper 
 
 42, 43 
 
 Rowland v. A shby 
 
 752 
 
 Rowlands v. Samuel 
 
 40 
 
 Rowley v. Home 
 
 1392 
 
 Rowley v. Loud. & N. W. Ry. Co. 
 
 ' 1190, 1195 
 Rowntree v. Jacob 112 
 
 Royal Ex. Ass. Co. u. Moore 963 
 
 Rucker v. Palsgrave 697 
 
 R.udd V. Wright 521, 576 
 
 Ruddock V. Marsh 199 
 
 Rudge V. M'Carthy 365 
 
 Rugg V. Kingsmill 157 
 
 Rumball v. Met. Bank 6, 707 
 
 Rumsey v. Reade 691 
 
 Rush V. Peacock 398, 660 
 
 Rush V.Smith 1202 
 
 Rushworth v. Lady Pembroke 418, 1417 
 Russel V. Rtissel 870 
 
 Russell, Re 1297 
 
 Russell, ex parte 1115 
 
 Ru.ssell V. Coffin 1185 
 
 Russell V. Dickson- 942, 1023 
 
 Russell V. Jackson 7'67,- 768, 781 
 
 Russel? -». Langstaffe 1527 
 
 Russell V. Rider 1186, 1222 
 
 RusseU V. Smyth 1445, 1449, 1457, 
 
 1458, 1542 
 Russell V. St. Aubyn 1024 
 
 Rust V. Baker 206 
 
 Rustell V. Macquister 314 
 
 Rutland's, Lady, case 102, 945 
 
 Rutter V. Chapman 653 
 
 Ryall V. Hannam 1014 
 
 Ryan, Cornelius, Re' 885 
 
 Ryan v. Dolan 1042 
 
 Ryan v. Nolan 199 
 
 Ryan v. Sams 203 
 
 Ryberg v. Ryberg 1199 
 
 Ryder v. Malborne 546 
 
 Ryder v. Wombwell' 55' 
 
 Sadleb, v. Robins 1445, 1457 
 
 Sadlier v: Biggs 379, 1006 
 
 Sage V. Wilcox 854 
 
 Sainsbury v. Matthews 227, 234, 239, 
 
 874 
 Sainter v. Ferguson 58 
 
 Sainthill v. Bound 1219 
 
 Sale v. Lambert 856 
 
 Salisbury v. Marshall 983 
 
 Salisbury, M. of, v. Gt. North Ry. Co. 136 
 Salkeld v. Johnson 90, 91 
 
 Salmon v. Webb 961 
 
 Saloucci V. Woodmass 1453 
 
 Salte V. Thomas 1330, 1335, 1480 
 
 Salter v. Turner 1289 
 
 Saltmarsh v. Hardy 634 
 
 Sampson v. Yardley 487 
 
 Sanborn v. Neilson 666 
 
 Sanders v. Meredith 689 
 
 Sanders v. St. Neot's Fnion 822, 826 
 Sanderson' -If. CoHman 109, 711, 712, 
 
 714 
 
 Sanderson v. Graves 
 
 PAGE 
 
 956 
 
 Sanderson v. Nestor 
 
 1441 
 
 Sanderson v. Symonds 1515 
 
 1517,1528 
 
 Sanderson v. Westley 
 
 930 
 
 Sandford v. Remington 
 
 789 
 
 Saudilands, Re 
 
 162 
 
 Sandilands v. Marsh 
 
 193, 511 
 
 Sandys v. Hodgson 
 
 707, 716 
 
 Sanford v. Chase 
 
 1118 
 
 Sanford v. Raikes 
 
 997 
 
 SangstCTii. Mazarredo 
 
 634 
 
 Saph V. Atkinsen 
 
 1550 
 
 Sarell v. Wine 
 
 904 
 
 Sargeson v. Sealey 
 Sarl«. Bourdillon 
 
 1400 
 
 855, 857 
 
 Satterthwaite v. Powell 
 
 210 
 
 Saunders, Re 
 
 892, 893 
 
 Saunders v. Bate 
 
 231 
 
 Saunders v. Cramer 
 
 853, 854 
 
 Saunders v. Mills 
 
 316 
 
 Saimders v. Saunders 
 
 173 
 
 Saunders v. Topp 
 
 877, 878 
 
 Saunderson v. Jackson 
 
 859, 860 
 
 Saunderson v. Judge 
 
 187 
 
 Savage v. 
 
 183 
 
 Savage v. Binney 
 
 443 
 
 Savage v. Canning 
 
 230 
 
 Savage v. Hutchinson 
 
 1308 
 
 Savage v. Smith 
 
 258 
 
 Savery v. King 
 
 165 
 
 Sawyer v. Birchmore 
 
 768, 786 
 
 Sawyer v. Eifert 
 
 329 
 
 Sawyer v. Maine Fire & Mar. 
 
 Ins. Co. 
 
 
 1451 
 
 Saye and Sele Peer. 123 
 
 555, 1388 
 
 Sayer v. Glossop 
 
 1556 
 
 Sayer v. Kitchen 
 
 1512 
 
 Sayer v. Wagstaff 
 
 1181 
 
 Sayers v. Walsh 
 
 667 
 
 Sayre v. Hughes 
 
 850 
 
 Scaife v. Farrant 
 
 980 
 
 Scaife v. Tarrant 
 
 980 
 
 Scales V. Key 
 
 202 
 
 Scheibel v. Fairbairn 
 
 49 
 
 Schibsby v. Westenholz 
 
 1449 
 
 Schmeltz v. Avery 
 
 964 
 
 Schneider v. Norris 
 
 860 
 
 Schofield V, Heap 
 
 1024 
 
 Schofield ex. p., in re Firth 
 
 Errata, 
 
 Scholes V. Chadwick 
 
 583, 661 
 
 Scholes V. Hilton 1083; 
 
 1066, 1067 
 
 Scholey v. Goodman 
 
 643. 
 
 Scholey v. Walton 
 
 632 
 
 Schreger v. Garden 
 
 698 
 
 Sohultz V. Astley 
 
 712, 1527 
 
 Schwalbe, The 
 
 215 
 
 Scoones v. Morrell 
 
 136- 
 
 Scorell V. BoxaU 
 
 874 
 
 Scott V. Bentley 
 
 1454 
 
 Scott V, BourdUhon 
 
 969 
 
 Scott V. Clare 
 
 375 
 
 Scott V. Crawford 
 
 711 
 
 Scott V. Fenoulhett 
 
 1020 
 
 Scott V. Irving 
 
 190 
 
Ixxxvi 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 Scott V. Jones 
 
 370, 406 
 
 Scott V. Lifford 
 
 42 
 
 Scott V. Lond. Dock. Co. 
 
 196 
 
 Scott V. Marshall 
 
 637 
 
 Scott V. Miller 
 
 1228 
 
 Scott V. Oxford, Ld. 
 
 314 
 
 Scott V. rilkington 
 
 1443, 1460 
 
 Scott V. Scott 
 
 894 
 
 Scott V. Shearman 
 
 1401 
 
 Scott V. Stansfield 
 
 1395 
 
 Scott V. TJxbridge & Eiok. Ry. Co. 700 
 
 Scott V. Waithman 1537 
 
 Scott V. Walker 1495 
 
 Scott V. Zygomala 465 
 
 Scolder v. Plowright 170 
 
 Seaman v. Netherclift 1114 
 
 Sea Nymph, The 212 
 
 Seago V. Beane 958 
 
 Searle v. Barrington, Ld. 585, 589 
 
 Searle v. Keeres 878 
 
 Searle v. Laverick 981 
 
 Searle v. Lindsay 987, 988 
 
 Searle v. Price 646 
 
 Searle v. Reynolds 129 
 
 Seaton v. Benedict 695 
 
 Seddon v. Tutop 1424 
 
 Seed V. Higgins 54, 58 
 
 Selby V. Browne 287 
 
 Selby V. Harris 1286, 1290 
 
 Selby V. HiUs 1115, 1120 
 
 Selby V. Selby 860 
 
 Selden i). "Williams 996 
 
 Selfe V. Isaacson 1173 
 
 Sellers v. Till 183 
 
 Sells V. Hoare 1165 
 
 Sells V. SeUs 961, 952 
 
 Selmes v. Judge 293 
 
 Selwayu Chappell 1169 
 
 Selwood V. Mildmay 1019, 1020 
 
 Selwyn's case 210 
 
 Senior v. Armitage 976 
 
 Senior v. "Ward 988 
 
 Serle v. Norton 43 
 
 Seton V. Slade 860 
 
 Sewell V. Corp 1487 
 
 Sewell V. Evans 1544 
 
 Sewell I). Stubbs 414 
 
 Seymour v. Maddox 988 
 
 Shafer v. Stonebraker 1398 
 Shaftesbury, Ld., v. Digby, Ld. 1159 
 Shah Mukhun Lall «. Nawab Im. Dowlah 
 
 907 
 
 Shand v. Bowes 57 
 Shankland v. City of "Washington 963 
 
 Shannon v. Bradstreet 855 
 
 Sharland v. Loaring 263 
 
 Sharman u Brandt 852 
 
 Sharp V. Carter 1224 
 
 Sharp V, Leach 166 
 
 Sharp V. Newsholme 500 
 
 Sharp V. Scoging 12:!9 
 
 Sharpe v. Bingley 1185 
 
 Sharpe v. Lamb 397^ 653 
 
 Shatvvell v. Hall 293 
 
 
 PAGE 
 
 Shaw, ex parte 
 
 410, 1501 
 
 Shaw V. Beck 
 
 351 
 
 Shaw V. Bran 
 
 163 
 
 Shaw V. Broom 
 
 662, 664 
 
 Shaw V. Gould 
 
 1447 
 
 Shaw V. Holmes 
 
 1501 
 
 Shaw -v. Markham 
 
 405 
 
 Shaw V. Picton 
 
 707 
 
 Shaw V. Shaw 
 
 447, 1123 
 
 Shearm v. Bumard 
 
 253 
 
 Shearman v. Pyke 
 
 892 
 
 Shearwood v. Hay 
 
 698 
 
 Shedden v. Att.-Gen. & Patrick 535, 536, 
 539, 543, 1402, 1407 
 Shedden v. Patrick 1435 
 
 Sheehy v. Mandeville 1416 
 
 Sheehy v. The Profess. Life Assur. Co. 
 
 1451 
 Sheen v, Bumpstead 312 
 
 ShefReld & Manch. Ry. Co. v. "Woodcock 
 
 705 
 Sheldon v. Clark 345 
 
 Shelly V. "Wright 112 
 
 Shelton v. Braithwaite 42, 855 
 
 Shelton v. Springett 202 
 
 Shephard'i). Payne 147, 1006 
 
 Shepheard v. Beetham 1082 
 
 Shepherd v. Chewter 719 
 
 Shepherd v. Currie 186 
 
 Shepherd v. Hills 92 
 
 Shepherd v. Hodsman 834 
 
 Shepherd v. Mackoul 200 
 
 Shepherd v. Pybus 985, 986 
 
 Shepherd v. Sharp 294 
 
 Shepherd v. Shorthose 1325 
 
 Sheppard v. Gosnold 1006 
 
 Sheridan & Kirwan's case 377 
 
 Sheridan v. The New Quay Co. 711 
 
 Sherman v. Sherman 679 
 
 Sherrington v. Jermyn 1524 
 
 Sherrington's case 735 
 
 Shickernell v. Hotham 904 
 
 Shieli). O'Brien 895 
 
 Shields v. Boucher 546, 548, 549 
 
 Shields v. Cannon 986 
 
 Shiells V. Blackburne 51 
 
 Shilcock V. Passman 51, 334 
 
 Shipworth u Green 112 
 
 Shirley v. Todd 662 
 
 Shore v. Bedford 779, 785 
 
 Shore v. "Wilson 943, 946, 966, 968, 969, 
 970, 996, 1003, 1004, 1005 
 Short V. Lee 521, 568, 569, 571, 577, 
 
 579, 584 
 Short V. Stoy 682 
 
 Short V. "Williams 23 
 
 Shortrede v. Cheek 855 
 
 Shott V. Strealfield 494 
 
 Shower v. Pilck 819 
 
 Shrewsbury's, Lady, case 744 
 
 Shrewsbury Peer. 396, 529, 540, 541 
 555, 558, 1326, 1387, 1476, 1551 
 Shropshire Union Ry. & Canal Co. v. R. 
 
 1365 
 
TABLE OF CASKS CITED. 
 
 Ixxxvii 
 
 PAGE 
 
 Shuttlewoi'th v. Le Fleming 92, 918 
 Sibbering v. Balcarras 153 
 
 Sichel V. Lambert 167, 180 
 
 Siddous V. kShort Errata 
 
 Sidebottom v. Adkins 1227 
 
 Sideways v. Dyaon 1218, 1512 
 
 Sidmouth v. Sidmouth 860, 1025 
 
 Sidney, Algernon, case of 609 
 
 Sidwell V. Mason 907 
 
 Sievewright v. Archibald 380, 382 
 
 Siggers v. Evans 819 
 
 Sikes V. Wild 981 
 
 Sillick 1). Booth 208, 211 
 
 Sills t>. Brown 438, 1194 
 
 Silver v. Stein 1455 
 
 Simmonds, Ke 883 
 
 Simmonds v. Andrews 8 
 
 Simmonds v. Humble 878 
 
 Simmonds v. Eudall 172, 1513 
 
 Simmonds v. Simmonds 810 
 
 Simms v. Henderson 448, 452, 1318 
 Simons v. Gt. West. Ey. Co. 918 
 
 Simons v. Patchett 990 
 
 Simpson v. Carter 466 
 
 Simpson v. Dendy 136 
 
 Simpson v. Dismore 1642 
 
 Simpsons. Flamank 94 
 
 Simpsons Fogo 1401, 1449, 1450 
 
 Simpson v. Lond. Gen. Oranilms Co. 980 
 Simpson v. Margitson 24, Sj69, 997 
 
 Simpson 1). Pickering 1411 
 
 Simpson v. Robinson 315, 677, 682 
 
 Simpson v. Smith 1202 
 
 Sims V. Marrvat 4, 984 
 
 Sims V. Thomas 1449, 1450, 1460 
 
 Sinclair v. Baggaley 176, 177 
 
 Sinclair v. Fraser 1458 
 
 Sinclair v. Sinclair 626, 1410, 1447, 1454 
 Sinclair v. Stevenson 398, g^O, 1185, 
 1186, 1222 
 Singleton v. Barrett 376 
 
 Siordet v. Kuczinski 362 
 
 Sissons V. Dixon 128 
 
 Skaife v. Jackson 625, 719, 946 
 
 Skeat V. Lindsay 907 
 
 Skeet V. Lindsay 907 
 
 Skelton v. Cole 856, 857 
 
 Skelton v. Hawling 688 
 
 Skerrittu. Scallan Errata 
 
 Sketohley v. Conolly 464 
 
 Skilbeck v. Garbett 187, 191 
 
 Skinner v. Gt. N. Ry. Co. 1496 
 
 Skinner v. Lond. & Bright. Ey. Co. 196, 
 
 240 
 Skrine v. Gordon 66 
 
 Skuse V. Davis 1356, 1357 
 
 Skyring v. Greenwood 707 
 
 Slack V. Buchannan 667 
 
 Slack V. Eusteed 883 
 
 Slane Peer. 552 
 
 Slaney v Wade 536, 543, 564, 555, 657 
 Slater v. Hodgson 563 
 
 Slater ». Lawson 632 
 
 Slator V. Nolan Errata 
 
 I'AGE 
 
 Slatterie i". Pooley 372, 373, S74, 624, 
 
 1232 
 
 Slaymaker v. Gundacker'a Ex. 632 
 
 Slaymaker v. Wilson 1546 
 
 Sleght V. Ehinelander 972 
 Slingsby v. Grainger 943, 1018 
 
 Sly V. Sly 681, 582 
 
 Small V. Gibson 979 
 
 Small V. Nairne 473 
 
 Smallcombe v. Bruges 639 
 
 Smart v. Harding 870 
 
 Smart v. Hyde 977 
 
 Smart v. Morton 138 
 
 Smart v. Rayner 350 
 
 Smart v. West Ham Union 822 
 
 Smartle v. Williams 1638 
 
 Smee v. Bryer 887 
 
 Smith's Estate, Ee 691 
 
 Smith, Mary, case of 724 
 
 Smith V. Adkins 882 
 
 Smith V. Battams 112 
 
 Smith V. Battens 176, 590 
 
 Smiths. Beadnell 669 
 Smith V. Dk. of Beaufort 1494, 1604 
 
 Smith V. Biggs 618 
 
 Smith V. Bird 654 
 
 Smiths. Blandy 615 
 Smith V. Blakey 570, 571, 594 
 
 Smith V. Braine 337 
 
 Smith t). Brandram 223, 240 
 
 Smith V. Brownlow, Ld. 621 
 
 Smith V. Buller 1042 
 
 Smith V. Bumham 723 
 
 Smith v. Cannan 101 
 
 Smith V. Cartwright 179 
 
 Smith V. Chester 713, 714 
 
 Smith V. Cramer 600, 604 
 
 Smith V. Crocker 1518 
 
 Smith V. Dauiell 775 
 
 Smith V. Davies 334 
 
 Smith V. De Wruiti! 662 
 
 Smith V. Doe d. Jersey - 61 
 
 Smith V. Dunbar 1623 
 
 Smith V. East India Co.. 797 
 
 Smith V. Evans 890 
 
 Smith V. Fell 776. 
 
 Smith V. Forty 910. 
 
 Smith V. Goddard v. Eiiitgway 1021 
 
 Smith V. Harris 891 
 
 Smith V. Hayes 677 
 Smith V. Henderson 1542, 1643 
 
 Smith V. Howden 137 
 
 Smith V. Hudson 880< 
 
 Smith V. Hughes 985. 
 
 Smith V. James 922. 
 
 Smith V. Jeffries . 345 
 
 Smith V. Jeffryes 996 
 
 Smith V. Johnson 1426 
 
 ■Smith V. Keating 103 
 
 Smith V. Knight & Co:, Ee 1078 
 
 Smith V. Knoweldeu 227, 230 
 
 Smith V. Lane 1185 
 
 Smith V. Lloyd 144 
 
 Smith V. Lovell 251 
 
IxxxTiii 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Smith V. Lyon 636 
 
 Smith V. Maplehack 840 
 
 Smith V. Man-able 287, 288, 353, 983 
 
 Smith V. Marsack 712 
 
 Smith V. Martin 336 
 
 Smith V. Matthews 849 
 Smith V. Morgan 635, 1180, 1183 
 
 Smith V. Mullett 42 
 
 Smith V. Neale 861, 867, 987 
 Smith V. Mcolls 1445, 1457, 1462 
 
 Smith V. Poole 903 
 
 Smith V. Eoyston 1422 
 Smith V. Rummens 1400, 1408, 1416 
 
 Smith V. Sainsbury 1547 
 
 Smith V. Scudder 646 
 
 Smith V. Shaw 293 
 
 Smith V. Simmes 665 
 
 Smith B. Sleap 397 
 Smith V. Smith 390, 495, 548, 659, 819, 
 
 884, 886 
 
 Smith V. Steele 987 
 
 Smith V. Surmau 875, 877, 878 
 
 Smith V. Sun-idge 1446 
 
 Smith V. Taylor 182, 183, 672 
 
 Smith V. Tebbitt 204, 544, 553 
 
 Smith V. Thackeray 139 
 
 Smith/!). Thomas 260 
 
 Smith V. Thompson 59 
 
 Smith V. Thome 902, 905 
 
 Smith V. Tombs 869 
 
 Smith V. Truscott 1066 
 
 Smith V. Voss 8 
 
 Smith V. "Webster 852 
 
 Smith V. Whittingham 569, 658 
 
 Smith V. Wilkins 298 
 
 Smith V. Wilson 969, 972 
 
 Smith V. Winter 286 
 
 Smith V. Young 376, 399 
 
 Smithson's, Sir Hugh, case 1319 
 
 Smyth V, Anderson 286, 600 
 
 Smyth V. Wilson 107, 111 
 
 Smythe v. Banks 1115 
 
 Snelgrove v. Martin 661 
 
 Snell V. Finch 185 
 
 SneUing v. Huntingfield 868 
 
 Snowball v. Goodricke 636 
 
 Snowdon v. Smith 329 
 
 Soar V. Foster 850 
 
 Society, &c. v. Wheeler 146 
 
 Solly V. Hinde 950 
 
 Solomon v. Vintners' Co. 139 
 
 Solomons v. Campbell 1182 
 
 Somerset, D. of, v. Fogwell 135 
 
 Somerset, D. of, v. France 300 
 
 Somerville v. Hawkins 63, 133 
 
 Somerville n, Somerville 215 
 
 Somes V. Skinner 110 
 
 Soper V. Dibble g 
 
 Sopwith V. Sopwith 1409, 1410 
 
 SotUichos V. Kemp 973 
 
 Souoh V. Strawbridge 868, 869 
 
 Soule's case 1151 
 
 Souter V. Drake 981 
 
 Southall V. Rigg 249 
 
 PAGE 
 
 Southampton case 637 
 
 Southampton, Mayor of, v. Graves 1261 
 Southampton Dock Co. v. Richards 1486 
 Southard v. Wrexford 1225 
 
 South-Eastern Ry. Co. v. Warton 114 
 South of Ireland Colliery Co. v. Waddle 
 
 820, 822 
 Southee v. Denny 230 
 
 Southey v. Nash 1173 
 
 Southwark Bridge Co. v. Sills 824 
 
 Southwell V. Bowditch 976 
 
 Southwick V. Stephens 130 
 
 Soward v. Leggatt 332, 333 
 
 Sowerby v. Butcher 963 
 
 Spadwell v. 547 
 
 Spaight V. Twiss 1476 
 
 Spargo V. Brown 568, 624 
 
 Sparkes v. Barrett 449 
 
 Sparrow v. Fan'ant 1555 
 
 Spartali v. Benecke 961, 977 
 
 Spears v. Hartly 96 
 
 Speck V. Phillips 696 
 
 Spenoe v. Healey 953 
 
 Spence v. Stewart 1118 
 
 Spenceley v. De Willott 1208 
 
 Spenceley v. Schulenburgh 785, 786 
 Spencer v. Barough 653 
 
 Spencer v. Billing 413 
 
 Spencer v. Newton 1116 
 
 Spencer v. Thompson 191, 313, 1410 
 Spencer v. Williams 1404 
 
 Sperling, Re 890 
 
 Spice V. Bacon 195 
 
 Spicer v. Burgess 1625 
 
 Spicer v. Cooper 970 
 
 Spickernell v. Hotham 855 
 
 Spieres v. Parker 103 
 
 Spiers v. Willison 368 
 
 Spill V. Maule 133 
 
 Spittle V. Walton 1155 
 
 Spollau V. Magan 902, 903 
 
 Spong V. Wright 904, 905 
 
 Spooner v. Juddow 28, 293 
 
 Spooner v. Payne 421, 1538, 1540 
 
 Spragge's case 407 
 
 Spratt V. Harris 1455 
 
 Sprigge V. Spiigge 173 
 
 Spring, The 8 
 
 Spring V. Eve 30 
 
 Spring V. Lovett 961 
 
 Spurr V. Hall Errata 
 
 Spurr V. Trimble 207 
 
 Squire V. Campbell 952, 953 
 
 Srimut Rajah v. Katama Natcliiar 1425 
 St. Catherine's Hospital Case 1488 
 
 St. Geoi-ge v. St. Margaret • 123 
 
 St. Losky V. Green 227, 240 
 
 Stace V. Griffith 53, 797, 798 
 
 Stackpole I). Arnold 719,946,963 
 
 Stackpole v. Howell 175 
 
 Stackpoole v. The Queen 523 
 
 Stafford Peer. 540, 544, 553 
 
 Stafford's, Ld., case 1239, 1240 
 
 Stafford V. Clark 1426 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 PAGK 
 
 Stafford, Mayor of, «. Till 117, 824 
 
 Staines v. Stewart 896, 949 
 
 Stainton v. Chadwick 1491, 1504 
 
 Stainton and Wife v. Jones 8 
 
 Stalworth v. Inns 1320 
 
 Stamford, Ld. v. Dunbar 144 
 
 Stammers v. Dixon 1006 
 
 Stanclitf V. Hardwicke 185 
 
 Standage v. Creighton 649 
 
 Standard v. Baker 1072 
 
 Standen v. Chrismas 1478 
 
 Standen v. Standen 670, 800 
 
 Standish v. Boss 715 
 
 Standley, Re 887 
 
 Stanger v. Searle 1546 
 
 Stanhope v. Knott 787 
 
 Stanley v. Dowdeswell 857 
 
 Stanley v. Stanley 1018 
 
 Stanley v. "White 300, 302, 677 
 
 Stansfield v. Hobson 915 
 
 Stanton v. Collier 848 
 
 Stanton «. Perdval 631,636 
 
 Stanton v. Styles 1423 
 
 Stanwix's, Gen. case 210 
 Stapletou V. Crofts 1135, 1144, 1150 
 
 Stapleton v. Haymen 832 
 
 Stapletou V. Nowell 694, 695 
 
 Stapylton v. dough 671, 593, 600 
 
 Startup V. Macdonald 45 
 
 State, the, v. Adams 154 
 
 State, the, u. Boswell 1238, 1239 
 
 State, the, v. De Wolf 1156 
 
 State, the, v. Freeman 795 
 
 State, the, v. Hay ward 806 
 
 State, the, v. Holier 806 
 
 State, the, v. Eawls 683 
 
 State, the, v. Stinson 204, 1163 
 
 State, the, v. Whisenhurst 1165 
 
 Staverton v. Ashburton 1438 
 
 Stead V. Dawber 956 
 
 Stead V. Heaton 576, 577 
 
 Steadmau v. Arden 1501 
 
 Steadman v. Duhamel 712 
 Steamship Co. Norden v. Dempsey 190, 
 
 969 
 Stearine, &c. Co. v. Heintzmann 1197 
 
 Stearn v. Mills 720 
 
 Steavenson v. Corp. of Berwick 695 
 
 Stebbing v. Spicer 202 
 
 Stedman v. Gooch 1315 
 
 Steel V. Prickett 136, 522, 528 
 
 Steele, Ee 900 
 
 Steele v. Hoe 1000 
 
 Steele v. Mart 960 
 
 Steele v. Stewart 775 
 
 Steevens's Hosp. v. Dj-as 172 
 
 SteigUtz V. Bgginton 827 
 
 Steinkeller v. Newton 415, 473, 474, 
 
 1180 
 
 Stephen v. Gwenap 569 
 
 Stephens v. Clark 617, 1473 
 
 Stephens v. Foster 1186 
 
 Stephens v. Heathcote 619, 634 
 
 Stephens v. Finney 367 
 
 PAOB 
 
 Stephens v. Webb 354 
 
 Stephens, ex p. , in re Lavies Errata 
 
 Stern v. Sevastopulo 464 
 
 Steuart v. Gladstone Errata 
 
 Stevens v. Lloyd 1517 
 Stevens v. Midi. Ey. Co. & Lander 824 
 
 Stevens v. Thaeker 642 
 
 Stewart, Ee 891 
 
 Stewart v. Alison 1487 
 Stewart v. Anglo-Califor. Crold Min. Co. 
 
 824 
 
 Stewart «. Cauty 49 
 
 Stewart v. Eddowes 852 
 
 Stewart v. Forbes 192 
 
 Stewart v. Smith 462 
 
 Stewart v. Steele 1042 
 
 Stewartson v. Watts 513 
 
 Steyner v. Droitwich 1488 
 Still V. Halford 1320, 1323 
 
 Stilwell V. Euck 1492 
 
 Stimson v. Farnham 715 
 
 Stoate V. Stoate 1410 
 Stobart v. Dryden 488, 584, 605, 606 
 
 Stobart v. Todd 1317 
 
 Stock V. M'Avoy 850 
 
 Stockbridge v. Quicke 1327 
 
 Stockdale v. Hansard 4 
 
 Stocken v. Collin 42, 187 
 
 Stockfleth V. De Tastet €68, 669 
 
 Stocks V. Ellis 451 
 
 Stockton V. Demuth 613 
 
 Stockwell V. Eitherdon 896 
 
 Stoddart v. Grant 894, 895 
 
 Stoddart v. Manning 1232 
 
 Stoever v. Whitman 972 
 
 Stokehill v. Pettingell 1135 
 
 Stokes V. Bate 1436 
 
 Stokes V. Dawes S53, 1400 
 
 Stokes V. Heron 174 
 
 Stokes V. Mason 28 
 
 Stokes V. Salomons 97 
 
 Stokes V. White 1123 
 
 Stonard v. Dunkin 710 
 
 Stone's case 728 
 
 Stone, James, Re 172 
 
 Stone V. Blackburn 1168 
 
 Stone V. Forsyth 1325 
 
 Stone V. Greening 1022 
 
 Stone V. Metcalf 958 
 
 Stone V. Stone 447 
 
 Stone V. Whiting 844 
 
 Stones V. Byron 1167 
 
 Stones V. Menhem 482 
 
 Stoop's case 608 
 
 Storey v. Ld. George Lennox 1504 
 
 Storr V. Scott 673 
 
 Story V. Finnis 698, 699 
 
 Stotherd v. James 663 
 
 Stoveld V. Hughes 878 
 
 Stowell V. Robinson 956 
 
 Stowe V. Querner 35 
 
 Stracey v. Blake 652, 656 
 
 Straffon's Exors., ex parte 705 
 
 Strafford's, Ld., case 802 
 
xc 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Straker v. Graham 7y5 
 
 Stranks v. St. John 834, 982 
 
 Stratford v. Greene 1287 
 
 Stratford & Morton K. Co. v. Stratton 
 
 110 
 Straton v. Rastall 112, 719 
 
 Strauss v. Francis 657 
 
 Streeter v. Bartlett 1290, 1534 
 
 Stringer V. Gardiner 1016,1017 
 
 Strode v. Russell 1004, 1009 
 
 Strong V. Dickenson 1115, 1116 
 
 Strong V. Foster 962 
 
 Stronghill v. Buck 114 
 
 Strother v. Barr 356, 360, 367, 368 
 
 Stroud, Ke 1467 
 
 Strutt V. Bovingdon 414, 471, 1414 
 
 Stuart V. Lovell 283, 315 
 
 Stucley V. Bailey • 962 
 
 Studdy V. Sanders 718, 788, 1289 
 
 Stukeley v. Butler 1017 
 
 Sturge V. Buchanan 403, 620, 622, 1241 
 Sturgeon v. Wingfield 116 
 
 Sturm V. Jeffree 402 
 
 Sturt V. Blagg 62 
 
 Suffield V. Brown 139 
 
 Suffolk Witches 724 
 
 Sugden v. Ld. St. Leonards 173, 394, 474 
 Sugg V. Silber 32, 221, Errata 
 
 Suisse V. Lowther 1024, 1027 
 
 Sullivan v. Galbraith 174 
 
 Sullivan v. Sullivan 1004 
 
 Svtmmer v. WilUams 494 
 
 Summers, Re 885 
 
 Summers v. Griffiths 165 
 
 Summers v. Moseley 1202 
 
 Summersett v. Adamson 375 
 
 Sunderland's case 317 
 
 Sunderland, Re 891 
 
 SuTcome v. Pinniger 866 
 
 Surplice v. Famsworth 983 
 
 Suse V, Pompe 991 
 
 Sussex Peer, caae 9, 63, 539, 5.52, 568, 
 569, 570, 571, 608, 1196, 1197, 1198 
 Suter V. Burrell 398 
 
 Sutton V. Ainslie 453 
 
 Sutton V. Bath 1337 
 
 Sutton V. Buck 141, 142 
 
 Sutton V. Devonport 132, 673 
 
 Sutton V. Gregory 593 
 
 Sutton V. Johnstone 40 
 
 Sutton V. Sadler 204, 338 
 
 Sutton V. Tatham 190 
 
 Sutton V. Temple 287, 982, 983, 985, 986 
 Swain v. Lewis 405 
 
 Swan V. N. Brit. Austral. Co. 405, 705, 
 
 1528 
 Swan's case 1078 
 
 Swann v. Phillips 914 
 
 Swanne v. Taaffe 1033, 1036 
 
 Swansea V. Ry. Co. ■». Bndd 1505 
 
 Swatman v. Ambler 861 
 
 Sweeney v. Spooner 1152 
 
 Sweeny v. Promoter Life Ass. Co. 701 
 Sweet V. Lee 853, 868, 860, 996, 997 
 
 PAGE 
 
 Sweeting v. Fowler 202, 278 
 
 Sweeting v. Pearce 190 
 
 Sweetland v. Sweetland 889 
 
 Sweigart v. Berk 1441 
 
 Swift V. Dean 1169 
 
 Swift V. Jewsbury 913, 925 
 Swift V. M'Tieman 624, 1330, 1337, 
 1476, 1481 
 
 Swift V. Nun 461 
 
 Swift V. Swift 1224, 1225 
 
 Swift V. Winterbotham 913, 925 
 Swindell v. Birmingham Syndicate 32 
 
 Swiney v. Barry 1522 
 
 Swinfen v. Ld. Chelmsford 250, 657 
 
 Swinfen v. Swinfen 657 
 Swinnerton v. Stafford, M. of, 562, 1332 
 
 Swyft V. Eyres 1019 
 
 Sybray v. White 640 
 
 Sydenham v. Rand 1033 
 
 Syers v. Jonas 976 
 
 Sykes, Re 172 
 
 Sykes v. Dixon 853 
 
 Sykes v. Dunbar 795 
 
 Svlph, The 1424 
 
 Sylvester v. Hall 351 
 
 Symmons v. Blake 314 
 Symonds v. Gaslight & Coke Co. 681 
 
 Symonds v. Lloyd 969 
 
 Symous v. Rees 1418 
 
 T. V. D. falsely called D. 154 
 
 Talbot, Ld., v. Cusack 1181, 1182 
 
 Talbot V. Hodgson 162 
 
 Talbot V. Hodson 1533 
 
 Talbot V. Lewis 523 
 
 Talbot V. Seeman 1388 
 
 Talbutt V. Clark 316 
 
 Tamvaco v. Lucas 57 
 
 Tanham v. Nicholson 190 
 
 Tann v. Tann 1020 
 
 Tanner v. Bean 253 
 Tanner v. Smart " 902, 904, 906 
 
 Tanner v. Taylor 1181 
 
 Taplin v. Atty 398 
 
 Taplin v. Florence 818 
 
 Tapling v. Jones 91 
 
 Tapp V. Lee 100 
 
 Tarleton v. Shingler 1624 
 Tarleton v. Tarleton 1445, 1460, 1461 
 
 Tarlton v. Fisher 1122 
 
 Tai-pley v. Blabey 316 
 
 Tarte v. Darby 842 
 
 Tatham i>, Drummond 1023 
 
 Tatteraall v. Fearnley 362 
 
 Tattershall v. Parkinson 698 
 
 Tayler v. Waters 818 
 
 Tayleur v. Wildin 676 
 
 Tayloe v. Riggs 356 
 
 Taylor, ex parte 1327 
 Taylor, Re 495, 889, 1091 
 
 Taylor v. Barclay 3, 27, 30 
 
 Taylor v. Beech 866, 867 
 
 Taylor i). Blacklow 776 
 
 Taylor v. Bowers no 
 
 Taylor v. Briggs 970 
 
TABLE OF CASES CITED. 
 
 XCl 
 
 
 PAGE 
 
 Taylor V. Burgess 
 
 962 
 
 Taylor v. Carpenter 
 
 413 
 
 Taylor v. Clemson 
 
 1395, 1440 
 
 Taylor v. Cole 
 
 554, 1465 
 
 Taylor v. Cook 
 
 1554 
 
 Taylor v, Croker 
 
 712 
 
 Taylor v. Devey 
 
 527 
 
 Taylor v. Diplock 
 
 210 
 
 Taylor v. Forster 
 
 649, 774 
 
 Taylor v. Gt. Ind. Pen. Ry. Co. 1528 
 
 Taylor v. Hawkins 53, 133 
 
 Taylor v. Horde 161 
 
 Taylor v. Hughes 705 
 
 Taylor v. Humphries 339 
 
 Taylor t). Kinloch 177, 639 
 
 Taylor v. Lawson 1176 
 
 Taylor v. Linley 871 
 
 Taylor v. Meads 882 
 
 Taylor v. Mosely 1514, 1516 
 
 Taylor v. Weedham 107, 118 
 
 Taylor v. Ficholls 930, 931 
 
 Taylor v. Oliver 1502 
 Taylor v. Parry 303, 1021, 1387 
 
 Taylor v. Riohardsoa 965 
 
 Taylor v. Boss 854 
 
 Taylor v. Eundell 1501, 1502 
 
 Taylor ». Shrubb Errata 
 
 Taylor v. Stray 190 
 
 Taylor v. Wakefield 878 
 
 Taylor v. Weld 948 
 
 Taylor v. Willans 494, 649 
 
 Taylor v. "Williams 1067 
 
 Taylor v. Witham 573 
 
 Teal V. Auty 874 
 
 Temperley v. Scott 1042, 1316 
 
 Tempest, ex parte 101 
 
 Tempest v. Fitzgerald 877 
 
 Tempest v. Rilner 249, 872 
 
 Temple, ex parte 1115, 1117 
 
 Temple v. PuUen 50, 1527 
 
 Tennant, ex p., re Howard Errata 
 
 Teniiant v. Bell 49, 1276 
 
 Tennant v. Creston 1276 
 
 Tennant v. Hamilton 1208 
 
 Tennent v. Neil 163 
 
 Tennyson v. O'Brien 230 
 
 Terrett v. Taylor 109 
 
 Terry v. Huntingdon 1401 
 
 Terry ii. Hutchinson 326 
 
 Texira v. Evans 1528 
 Thames Iron "Works Co. v. The Royal 
 
 Mail St. Packet Co. 953 
 
 Thanet, E. of, v. Forster 1476 
 
 Tharpe v. Gisburne 1547 
 
 Tharpe v. Stallwood 294 
 
 Thatcher v. Waller 438 
 
 Thelluson v. Gosling 1388 
 
 Theobald v. Crichaiore 293 
 
 Thetford v. Tyler 204 
 
 Thetford's case 1331, 1484 
 
 Thol V. Leask 463 
 
 Thorn V. Bigland 249 
 
 Thomas, Re 887 
 
 Thomas, in the goods of 574 
 
 PAGE 
 
 Thomas Blyth, The 213 
 
 Thomas v. Ansley 103, 363 
 
 Thomas v. Brown 701, 857 
 
 Thomas v. Connell 501 
 Thomas v. Cook l.iS, 844, 845, 865 
 Thomas v. David 1174, 1175, 1211 
 
 Thomas v. Evans 895 
 
 Thomas v. Foyle 141 
 
 Thomas v. Fredericks 818 
 
 Thomas v. Jenkins 522, 524 
 
 Thomas v. Ke.tteriche 1405 
 
 Thomas v. Morgan 667 
 
 Thomas v. Newton 1233 
 
 Thomas v. Packer 203 
 
 Thomas v. The Queen 1493, 1503 
 
 Thomas v. Rawlings 772, 774 
 
 Thomas v. Sorrell 818 
 
 Thomas v. Stephenson 293 
 Thomas v. Thomas 207, 678, 1009, 1015 
 
 Thomas v. Williams 865 
 
 Thompson v. Bowyer 915 
 
 Thompson v. Cartwright 938 
 
 Thompson v. Donaldson 1404 
 
 Thompson v. Falk 778 
 
 Thompson v. Gardiner 380 
 
 Thompson v. Gibson 1357 
 
 Thompson v. Hopper 979 
 
 Thompson v. Jackson 696 
 
 Thompson v. Lacy 195 
 
 Thompson v. Lambe 618 
 
 Thompson v. Mosely 299, 410 
 
 Thompson v. Nye 329 
 
 Thompson v. Ross 825 
 
 Thompson v. Small 185 
 
 Thompson v. Trail 185 
 
 Thompson v. Trevanion 499 
 
 Thompson v. Waitliiiian 629 
 
 Thomson v. Austen 616, 666 
 
 Thomson v. Davenport 673 
 
 Thomson v. Hall 886 
 
 Thomson v. Harding 660 
 
 Thomson v. Hempenstall 1014 
 
 Thomson v. Wilson 840 
 
 Thorndike v. City of Boston 500 
 
 Thome v. Jackson 26, 27 
 
 Thome v. Tilbury 710 
 
 Thornes v. White 718 
 
 Thornhill v. Thomhill 1033 
 
 Thornton v. Charles 331 
 
 Thornton v. Kempster 380, 383 
 
 Thornton v. Meux 380 
 
 Thornton v. Place 1422 
 Thornton v. Roy. Ex. Ass. Co. 1194 
 
 Thorp V. Holdsworth 289 
 
 Thorpe v. Cooper 1424 
 
 Thorpe v. Macaulay 1223 
 
 Thresh v. Rake 956 
 
 Thunder v. Warren 865 
 
 Thurbaine et al. 707 
 
 Thurle v. Madison 1538 
 
 Thurston t). Slatford 475 
 
 Thurtell v. Beaumont 127 
 
 Thurtell's case 1146 
 
 Thwaites v. Foreman 174 
 
XCll 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Thwaites v. Eichardson 626 
 Thynne, Lady E. ,«. Ld. Glengall 866, 1024 
 Tichborne case 70, 786, 1202 
 
 Tickel V. Short 679 
 
 Tickle V. Brown 583, 6til 
 
 Tidey v. Mollett 834 
 
 Tidmarsh v. Grover 1516 
 
 Tiemey v. Wood 849 
 
 Tighe V. Tighe 1455 
 
 Tildesley v. Harper 224 
 
 Tiley v. Cowliiig 1418 
 
 Tilghman v. Fisher 674 
 
 Tillotson, ex parte 1120 
 
 Tindal v. Baskett 350 
 
 Tinley v. Porter 1067 
 
 Tinn v. Billingsley 651 
 
 Tippet's case 728 
 
 Tippets V. Heane 908 
 
 Tippins V. Coates 1236 
 
 Tisdall V. Pamell 566, 1476 
 
 Titus Gates' case 1130 
 Tobacco-pipe Makers' Co. v. Loder 88 
 
 Toby II. Lovibond 1467 
 
 Tod V. E. of Winchelsea 364, 471 
 
 Todd V. Ld. "Winchelsea 171 
 
 Todd V. Kerrick 47, 185 
 
 Todd?) Reid 190 
 
 Toft V. Stephenson 916 
 
 Toker v. Toker 165 
 
 Toleman v. Portbury 335, 675 
 
 Tolman & Ux. v. Johnstone 1210 
 
 Tollemache v. Tollemache 1447 
 
 Tomkins v. Ashby 692 
 
 Tonikinsu Att.-Gen. 1331 
 
 Tomkins v. Saltmarsh 501 
 
 Tomkins v. Tomkins 64 
 
 Tomkinson v. Staight 877 
 
 Tomlinson v. Gell 864 
 
 Tompson v. Williamson 192 
 
 Toms V. Cuming 922 
 
 Tomson v. Judge 165 
 
 Toogood V. Spyiing 133 
 
 Tooker v. D. of Beaufort 10 
 
 Tooker v. Smith 837 
 
 Topham u M'Gregor 413,1182 
 
 Toppin V. Lomas 870 
 
 Topping, ex parte 902, 908 
 
 ToiTiano v. Young 203 
 
 Tottenham's Estate, Re 104 
 
 Toulmin v. Copland 1418 
 
 Toulmin v. Piice 395 
 
 Tovey v. Lindsay 1447 
 
 Towers v. Newton 1120 
 
 Towne v. Campbell 46 
 
 Towne v. Cocks 463 
 
 Towne v. Lewis 185 
 
 Towne «. Smith 1454 
 Townend v. Drakeford 380, 381, 382 
 
 Townley v. Watson 898 
 
 Townsend v. Ives 1539 
 Townsend, M. of, ii. Strangroom ■ 951, 
 952, 963 
 
 Townsend v. Weld 964 
 
 Townshend Peer. 551 
 
 PAOB 
 
 Toymbee v. Brown 91 
 
 Tracy Peer. 74, 552, 653, 555, 1190, 
 1475, 1554, 1656 
 Traherne v. Gardner 261, 262, 263, 264 
 Traill v. Baring 703 
 
 Trasher v. Everhart 63 
 
 Travers v. Blundell Errata 
 
 Treacy v. Corcoran 169 
 
 Treeby, Re 898 
 
 Tregany^. Fletcher 29 
 
 Trelawneyi). Colman 177, 498, 1189 
 Tremain v. Barrett 1042 
 
 Trent v. Hunt 119, 185 
 
 Tress v. Savage 838 
 
 Trevanion, Be ' 890 
 
 Trevivan v. Lawrence 108 
 
 Trewhitt v. Lambert 369 
 
 Tribe v. Tribe 884 
 
 Trickett v. Tomlinson 702 
 
 Trimbey v. Vignier 65 
 
 Trimlestown, Ld., v. Eemmis 564, 580, 
 581, 582, 623, 1530 
 Trimmer v. Bayne 1009, 1023, 1024 
 Trist V. Johnson 401 
 
 Tronson v. Dent 215, 696 
 
 Trotman v. Wood 987 
 
 Trott V. Skidmore 887 
 
 Trowbridge v. Baker 671 
 
 Trowel v. Castle 1513 
 
 Trower & Lawson's case 1078 
 
 Trueman v. Loder 971, 973, 991, 994 
 Trulock V. Eobey 915 
 
 Truro, Lady, Re 891, 892 
 
 Truslove v. Burton 649 
 
 Trustee Relief Act, Ee, Higgins' Trusts 
 
 Tuck V. Tuck 
 
 
 262 
 
 Tucker v. Barrow 
 
 
 669 
 
 Tucker v. Burrow 
 
 
 850 
 
 Tucker v. Maxwell 
 
 
 719 
 
 Tuckey v. Henderson 
 
 
 1023 
 
 TaSv. Warman 
 
 
 7 
 
 Tufton V. Whitmore 
 
 
 473 
 
 Tugwell V. Hooper 
 
 
 785 
 
 Tull V. Parlett 
 
 
 950 
 
 Tullock V. Dunn 
 
 
 632 
 
 Tunney v. Midi. Ry. Co. 
 
 
 987 
 
 Tunniclifife v. Tedd 
 
 
 1356 
 
 Tupling V. Ward 
 
 464, 
 
 1235 
 
 Tupper V. Foulkes 
 
 827, 
 
 1528 
 
 Tupper V. Tupper 
 
 
 900 
 
 Turley v. Thomas 
 
 
 7 
 
 Turner, Re, 
 
 174, 893 
 
 Turner's case 
 
 
 1428 
 
 Turner v. Ambler 
 
 
 40 
 
 Turner v. Barlow 
 
 
 24 
 
 Turner v. Cameron's Coalbrook Steam 
 
 Coal Co. 119 
 
 Turner v. Collins 165 
 
 Turner v. Crisp 585 
 
 Turner v. Eyles 254 
 
 Turner v. Goulden 463 
 
 Turner v. Mason I85 
 
 Turner v. Pearte ngg 
 
TABLE OF CASES CITED. 
 
 xeiu 
 
 PAGE 
 
 Turner v. Power 365 
 
 Turney v. Dodwell 911 
 Turquand v. Knight 766, 769, 770, 790 
 
 Turquand v. Wilson 691 
 
 Turrill v. Crawley 195 
 
 Turton v. Barber 779 
 
 Tutton V. Darke 23, 30 
 
 Tweedale, Be 893 
 
 Twemlow v. Oswin 211 
 
 Twiss V. Baldwin 249 
 
 Twyman v. Knowles 356, 368 
 
 Twyne's case 164 
 
 Tyerman v. Smith 708 
 
 Tyers v. Eosedale and Perry Hill Iron 
 
 Co. 956 
 
 Tyler v. Ulmer 1392 
 
 Tyler «. Yates 166 
 
 Tyrer v. Henry 222 
 
 Tyrwhitt v. Wynne 304 
 
 tr., falsely called J. v. J. 810 
 
 TJdny v. Udny 216 
 
 Underwood v. Darracott 1064 
 
 Underwood v. Ld. Courtown 666 
 
 Underwood v. Wing 210 
 
 Ungiey v. Ungley 866 
 Unity Jt. St. Mutual Banking Assoc, ex. 
 
 parte. Re King 706 
 
 U.S. V. Battiste 34 
 
 U.S. V. Breed 969 
 
 U.S. V. Buford 1487 
 
 U.S. V. Cushman 1415 
 
 U.S. V. Gibert 359 
 
 U.S. V. Gooding 505 
 
 U.S. V. Hayward 345 
 
 U.S. V. Leffler 950 
 
 U.S. V. M'Eae 1229 
 
 U.S. V. Moses 793 
 
 U.S. K. Reybum 356 
 
 U.S. V. Spalding 1522 
 
 U.S. V. Wagner 3 
 
 U.S. V. Wood 471, 807 
 
 Usticke V. Bawden 901 
 
 Utterton v. Robins 892 
 
 Uxbridge, Ld., v. Staveland 1223 
 
 Vaohek v. Cocks 500, 501, 1536 
 
 Vaillant v. Dodemead 770, 780, 
 
 1228, 
 
 Vale V. Oppert 411, 1501 
 
 Valentine v. Piper 1545 
 
 Vallance v. Dewar 971, 992 
 
 Vallfe V. Dumevque 1451 
 
 Valpy V Gibson 856 
 
 Vance v. Lowther 1615 
 
 Vance v. Vance 676 
 
 Vandenbnrgh v. Spooner 856 
 
 Vander Donckt v. Thellusson 1198 
 
 Vandevelde v. Lluellin 1123 
 Van Diemen's Land Bk. v. Victoria Bk. 
 
 50 
 
 Vane's, Ld., case 1151 
 Van Omeron v. Dowick 5, 30, 189, 1389 
 
 Vanquelin v. Bouard 1455, 1460 
 Van Reinisdyk r. Kane 511, 634, 635 
 
 Van Sandau v. Turner 29, 689 
 
 PAGE 
 
 Van Straubenzee v. Monck 891 
 
 Van Wart v. Woolley 656 
 
 Varicas v. French 421 
 
 Vasie v. Delaval 795, 796 
 
 Vaughan v. Cork & Y. Ry. Co. 988 
 
 Vaughan v. Hancock 870 
 
 Vaughan 1). Mfl.rtin 1183,1184 
 
 Vaughan v. Vanderstegen 704 
 
 Vaughan v. Worrall 1169 
 
 Vaughan's case 305 
 
 Vaughton v. Bradshaw 1356 
 Vaux Peer. 553, 555, 556, 1322 
 
 Vaux V. Sheffer 1424 
 
 Velasquez, The 215 
 
 Venafra v. Johnson 752 
 
 Venables v. Schweitzer 1077 
 
 Ventu Pacey 778 
 Verry ■;;. Watkins 326, 331, 1213 
 
 Vice V. Lady Anson 402 
 
 Vickers v. Hertz 141 
 
 Victoria, The 215 
 
 Vidi V. Smith 483 
 
 Villeboisnet v. Tobin 465 
 
 Vincent v. Bp. of Sodor & Man 832 
 
 Vincent v. Cole 360, 366, 368 
 
 Vines v. Arnold 1426 
 
 Vinnicombe w. Butler 886, 887 
 
 Viney v. Barss 299 
 
 Violet V. Patton 854 
 
 Volant n. Soyer 411, 773 
 
 Von Stentz v. Comyn 170 
 
 Vooght V. Winch 108 
 Vose V. Lancashire & Y. Ry. Co. 988 
 
 Vowles V. Miller 251 
 Vowles V. Young 540, 543, 544, 554, 
 
 555 
 
 VuUiamy v, Huskisson 546, 563 
 Waddell ex. p. , in re Lutscher Errata 
 
 Waddilove v. Barnett 287 
 
 Waddington v. Bristow 874 
 
 Wade V. Nazer 896 
 
 Wade V. Simeon 1169 
 
 Wade V. Tatton 914 
 
 Wadeer v. East India Co. 797 
 
 Wadley v. Bayliss 1006 
 
 Wadsworth v. Bentley 1424 
 
 Wadsworth v. Ham.shaw 768 
 
 Wadsworth v. Marshall 1036 
 
 Wagstaffw. Wilson 649 
 
 Wain V. Bailey 395 
 
 Wainman v. Kynmau 908 
 
 Wainwright v. Bland 450 
 
 Waithman v. Wakefield 199 
 
 Waithman v. Weaver 329 
 
 Wakefield v. D. of Buccleuch 138 
 
 Wakefield v. Ross 1162 
 
 Wakemau v. West 1476 
 
 Wakley v. Johnson 316 
 
 Walcot V. AUeyn 204 
 
 Walcott V. Hall 329 
 
 Waldridge v. Kennison 666 
 
 Waldron v. Coombe 1487 
 
 Waldron v. Jacob 858 
 
 Waldron v. Tuttle 540 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 "Waldron v. Ward 780 
 
 Waldy V. Gray 476 
 
 Walford v. Fleetwood 28 
 
 "Walker v. Bartlett 872 
 Walker v. Lady BeaHchamp 389, 535 
 
 Walker v. Bennett 449 
 
 Walker v. Broadstock 580 
 
 Walker v. Butler 908 
 
 Walker v. Gardner 931 
 
 Walker v. Gode 678 
 
 Walker v. G. W. Ey. Co. 822 
 
 Walker v. Moore 981 
 
 Walker v. Rawson 695 
 Walker v. Eichardson 153, 843, 844, 846 
 
 Walker v. Webb 1120 
 
 Walker v. Wildman 774, 778 
 
 Walker v. Wingfield 1329 
 
 Walker v. Witter 1460 
 
 Walker's case 659, 1164 
 
 Wall's case 187 
 
 Wallace v. Brockley 930 
 
 Wallace v. Cook 1331, 1480 
 
 Wallace v. Fielden 215 
 
 Wallace v. Kelsall 625, 719, 946 
 
 Wallace v. Pomfret 1025, 1026 
 
 Wallace v. Seymour 895 
 
 Wallace «. Small 666 
 
 Waller v. Lacy 904, 907, 910 
 
 Waller v. South-East. Ry. Co. 987 
 
 Wallis V. Littell 948 
 
 Walpole V. Alexander 1114, 1115 
 
 Walrond v. Hawkins 676 
 
 Walsh V. Nally Errata 
 
 Walsb V. Trevanion 942 
 
 Walsh V. Wilson 1116 
 
 Walsham v. Stainton 775 
 Walsingham, Ld., v. Goodricke 767, 777, 
 
 778 
 
 Walter i). Bollman 597 
 
 Walter I). Cubley 1617 
 
 Walter v. Haynes 187 
 
 Walters v. Morgan 869 
 
 Walters v. Eees 1118, 1121 
 
 Walton V. Chandler 930 
 
 Walton V. Gavin 179 
 
 Walton V. Green 643 
 
 Walton V. Hastings 1515, 1525 
 
 Walton V. Shelley 1130 
 
 Walton V. Waterhouse 116 
 
 Wambough v. Shenk 207 
 
 Wankford v. Fotherley 703 
 
 Warburton v. G. W. Ey. Co. 987 
 
 Ward V. Day 675 
 
 Ward V. Dey 1197 
 
 Ward V. Hobbs 986, Errata 
 
 Ward V. Johnson 1415 
 
 Ward V. Ld. Londesborough 191 
 
 Ward, Ld., v. Lumley 843, 1619 
 
 Ward V. Pearson 227, 233 
 
 Ward V. Pomfret 585 
 
 Ward V. Ryan 117 
 
 Ward V. Ward 1321, 1434 
 
 Ward V. Wells 421, 1538 
 
 Warde v. Warde 779 
 
 PAGE 
 
 Warden v. Fermor 1540 
 
 Warden v. Jones 866 
 
 Ware v. Cumberledge . 871 
 
 Warickshall's case 724, 725, 731 
 
 Waring v. Waring 338 
 
 Warmsley v. Child 395 
 
 Warner v. Willington 856, 857, 861 
 
 Warrall, Ee 1234 
 
 Warren v. Anderson 1543, 1546 
 
 Warren v. Stagg 956 
 
 Warren v. Warren 187 
 
 Warren v. Wilder 988 
 
 Warren Hastings case 1488 
 
 Warrender v. Warrender 1447 
 
 Warrick v. Queen's Coll., Ox. 519, 523, 
 
 1259 
 Warriner v. Giles 1331 
 
 Warrington v. Early 1615 
 
 Wai-wick V. Bruce 874 
 
 Warwick v. Foulkes 314 
 
 Warwick v. Hooper 675 
 
 Warwick v. Queen's Coll. 1269 
 
 Warwick v. Eogers 1622 
 
 Wason V. Walter 4 
 
 Waterford, Wexford, Wicklow & Dublin 
 Ey. Co. ij. Pidcock 1485 
 
 Waterford, Corp. of, v. Price 1484 
 
 Waterford Ey. Co. v. Wolsely 1485 
 
 Waterford, Estate of M. of, Re 976 
 
 Waterloo Bridge Co. v. Cull 
 
 
 136 
 
 Waterman v. Soper 
 
 
 137 
 
 Waterpark v. Fennell 
 
 1005, 
 
 1006 
 
 Waters v. Earl of Thanet 
 
 
 903 
 
 Waters v. Hewlett 
 
 
 492 
 
 Waters v. Thorne 
 
 
 84 
 
 Waters v. Tomkins 908, 909 
 
 , 912 
 
 Watldns, Re 
 
 
 891 
 
 Watkins, ex parte 
 
 
 1454 
 
 Watkins v. Morgan 
 
 
 235 
 
 Watkins v. Nash 
 
 
 1526 
 
 Watson V. Arundell 
 
 
 891 
 
 Watson V. Clark 
 
 
 212 
 
 Watson V. Hawkins 
 
 
 689 
 
 Watson V. King 208, 649, 
 
 1331, 
 
 1480 
 
 Watson V. Lane 
 
 in 
 
 , 119 
 
 Watson V. Little 
 
 
 1394 
 
 Watson V. Spratley 
 Watson V. Threlkeld 
 
 871 
 
 , 872 
 
 
 703 
 
 Watson V. Wace 
 
 
 706 
 
 Watson V. Watson 
 
 
 1024 
 
 Watson V. Woodman 
 
 
 612 
 
 Watters v. Smith 
 
 
 1415 
 
 Watts V. Ainsworth 
 
 
 861 
 
 Watts V. Eraser 
 
 
 316 
 
 Watts V. Kelson 
 
 
 139 
 
 Watts V. Lawson 
 
 
 666 
 
 Watts V. Thorpe 
 
 
 6.39 
 
 Waugh V. Bussell 
 
 
 1517 
 
 Waugh V. Carver 
 
 
 191 
 
 Waugh V. Cope 
 Wayman v. Hilliard 
 
 
 908 
 
 
 666 
 
 Waymell v. Eeed 
 
 
 949 
 
 Weale v. Lower 
 
 
 205 
 
 Weall V. Eice 
 
 1024 
 
 1026 
 
TABLE OF CASES CITED. 
 
 XCV 
 
 
 PAGE 
 
 Weaver v. Price 
 
 1397 
 
 "Webb, Re 
 
 883 
 
 Webb V. Austin 
 
 116 
 
 Webb V. Bird 
 
 92, 149 
 
 Webb V. Bornford 
 
 460 
 
 Webb V. Byng 
 
 1000 
 
 Webb V. Fox 
 
 140, 142 
 
 Webb V. Haycock 
 
 550 
 
 Webb V. Heme Bay Improving Com. 
 
 706 
 Webb V. Hurrell 1416 
 
 Webb V. Manch. & Leeds Ry. Co. 1191 
 Webb V. Paternoster 818 
 
 Webb V. Petts 523 
 
 Webb V. Plummer 992 
 
 Webb V. Rennie 988 
 
 Webb V. Salmon 961 
 
 Webb V. Smith 626, 770 
 
 Webb V. Taylor 1117, 1118, 1122 
 
 Webb's Estate, Re 206 
 
 Webber w. Corbett 1008 
 
 Webber v. East Ry. Co. 1191 
 
 Webber v. Stanley 1021 
 
 Webster v. Bray 192 
 
 Webster v. Cecil 952 
 
 Webster v. Coolc 166 
 
 Webster v. Lee 14 '2 5 
 
 Wedderburne's case 305 
 
 Wedge V. Berkeley 41, 52 
 
 Wedgwood's case 1484 
 
 Weekes v. Pall 448 
 
 Weeks v. Argent 779, 785 
 
 Weeks v. Maillardet 1528 
 
 Weeks v. Propert 990 
 
 Weeks v. Sparke 518, 521, 523, 524, 527 
 Weidman v. Kohr 580, 661 
 
 Weidner v. Schweigart 186 
 
 Welch V. Barrett 593 
 
 Welch V. Maiideville 625 
 
 Welch V. Nash 1438 
 
 Welch V. Phillips 173 
 
 Welch V. Seaborn 186 
 
 Weld V. Hornby 1005, 1006 
 
 Welfare v. Lond. & Brigh. Ry. Co. 196 
 Welford v. Beezely 589 
 
 Welland Can. Co. 'v. Hathaway 375, 684 
 Wellaad v. Ld. Middleton 1330, 1337, 
 
 1481 
 Wells V. Fisher 1148 
 
 Wells V. Fletcher 1148 
 
 Wells V. Horton 869 
 
 Wells V. Jesus College 523, 527 
 
 Wells V. Kingston-upon-Hull 821, 870 
 Wells V. Wells 943 
 
 Welstead v. Levy 36, 637, 661, 665 
 
 Wemyss v. Hopkins 1433 
 
 Wenman v. Mackenzie 533, 1417, 1468 
 Wentworthw. Lloyd 132 
 
 Wequelin v. Wequelin 471 
 
 West, Ke 888 
 
 West V. Baxendale 40, 231 
 
 West V. Blakeway 709, 963, 954 
 
 West D. Lawday 1018 
 
 West V. Moore 175 
 
 PAGE 
 
 West V. Ray 882 
 
 West«. Steward 1524, 1526, 1527, 1628 
 West Cambridge v. Lexington 580 
 
 West of Canada Oil, &c., Co., Re 447, 
 
 1173 
 West Cornwall Ry. Co. v. Mowatt 1485 
 West of Eng. Bk. o. Canton Ins. Co. 
 
 Errata 
 Westmoreland v. Huggins 449 
 
 Westoby I!. Day 1416 
 
 Weston, Re 894 
 
 Weston V. Emes 960 
 
 Wetherall, ex parte 703 
 
 Wetherell v. Langston 861 
 
 Wey V. Yally 9 
 
 Whaley v. Carlisle 27, 577 
 
 WhaUey v. Pepper 1123 
 
 Wharam v. Routledge 1512 
 
 Wharram v. Whan-am 394 
 
 Wharton Peer. 1315, 1387 
 
 Wharton v. Mackenzie 56 
 
 Whateley v. Crowter 462, 463 
 
 Whateley v. Spooner 998, 1012 
 
 Whatman, Re 1018 
 
 Wheatley v. Williams 789 
 
 Wheeler v. Alderson 169, 170, 492, 1189^ 
 Wheeler v. Atkins 473 
 
 Wheeler v. Collier 856 
 
 Wheeler v. Cox 1118 
 
 Wheeler v. Lowth 1315 
 
 Wheeling's case 728 
 
 Whicker v. Hume 216, 1404 
 
 Whiifen v. Hartwright 665 
 
 Whippy V. Hillary 905 
 
 Whistler v. Forster 711 
 
 Whitaker v. Harrold 697 
 
 Whitaker v. Izod 410, 1233 
 
 Whitaker v. Tatham 1009 
 
 Whitaker v. Wisbey 28, 103, 163, 363 
 Whitcomb v. Whiting 626 
 
 White, Re 172, 888 
 
 White V. Birch 1018 
 
 White V. Cuyler 827 
 
 White V. Dowling 641 
 
 White V. Greenish 704, 715 
 
 White V. Hawn 1165 
 
 White V. Lisle 521, 523 
 
 White V. M'Dermott 175 
 
 White V. Morris 617, 618 
 
 White V. Parkin 955 
 
 White V. Proctor 927 
 
 White V. Repton 892 
 
 White V. Sayer 976 
 
 White V. Sharp 1320 
 
 White V. Smith 1243 
 
 White, ex parte, u. Tommey 1435 
 
 White V. Wilson 204, 962 
 
 White's ease 728 
 
 Whiteacre v. Symonds 54 
 
 Whitehead v. Clifford 845 
 
 Whitehead v. Scott 223, 370, 407, 494 
 Whitehead v. Tattersall 642 
 
 Whitehouse v. Hemmant 1559 
 
 Whiteley v. King 173 
 
XCYl 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Whitelooke v. Baker 535, 540 
 
 Whitelock v. Miisgrove 1541, 1544 
 
 Whitefield v. Brand 369 
 "Whitfield V. South-East. Ry. Co. 133, 
 
 824 
 
 Whitford v. Tutin 366 
 
 Whitley v. Gough 842 
 
 ■Whitmore v. Humphries 140 
 
 Whitnash v. George 571, 658 
 
 Whittaker v. Edmunds 336 
 Whittaker v. Jackson 1413, 1420, 1422 
 "Whittuck V. Waters 548, 555, 1327 
 
 Whitwell V. Perrin 215 
 
 Whitwell V. Wyer 615 
 Whitwill V. Scheer 231, 237, 239 
 
 Whyman v. Garth 1532 
 Whyte V. Rose 26, 28, 1436, 1455 
 
 Wickens v. Goatley 27 
 
 Wickham v. M. of Bath 928 
 
 Wickhamw. Hawker 818 
 
 Wickham v. Lee 1427 
 
 Wickham v. Wickham 863 
 
 Widdow's Trusts, Re 122 
 
 Wieler v. Schilizzi 985 
 
 Wigglesworth v. Dallison 976 
 
 •Wight's Mortgage Trusts, Re 939 
 
 Wightwicki). Banks 1289 
 
 Wigmore v. Jay 988 
 
 Wihen v. Law 1478 
 
 Wike V. Lightner 1238, 1240 
 
 Wilberforoe v. Hearfield 1350 
 
 Wilbur V. Selden 422, 471 
 
 Wilby V. Elgee 907, 917 
 
 Wildes V. Dudlow 865 
 
 Wiles V. Woodward 114 
 
 Wilkes V. Hopkins 654 
 Wilkin V. Reed 52, 235, 238 
 
 Wilkins v. Jadis 44, 675 
 
 Wilkins v. Stephens 851 
 
 Wilkinson v. Evans 858 
 
 Wilkinson v. Gordon 1416 
 
 Wilkinson v. Johnson 1521 
 
 Wilkinson v. Kirby 261, 1420 
 
 Wilkinson v. Storey 59 
 
 Wilkinson v. Verity 88 
 
 Willerford, Re 891 
 
 Williams, Re 888 
 
 Williams, ex parte 1030 
 
 Williams I). Armroyd 1453 
 
 Williams v. Ashton 172 
 
 Williams v. Bryant 277, 708 
 
 Williams v. Byrnes 856 
 
 Williams v. Callender 329 
 
 Williams v. Davies 351, 353 
 
 Williams v. E. Ind. Co. 128, 334 
 
 Williams v. Evans 875, 895 
 
 Williams v. Eyton 146, 1320 
 
 Williams v. Farrington 1228 
 
 Williams v. Geaves 572 
 
 Williams v. Gt. West. Rail. Co. 265 
 
 Williams v. Griffith 907, 910 
 
 Williams v. Griffiths 909 
 
 Williams v. Gutch 8 
 
 Williams v. Hulie 1] 7;; 
 
 Williams v. Innes 
 Williams v. Jones 
 Williams v. Jordan 
 Williams v. Lake 
 Williams 1). Morgan 
 Williams v. Morris 
 Williams v. Mudie 
 Williams v. Pigott 
 Williams v. Smith 
 Williams v. Steele 
 
 PACE 
 
 639 
 
 173, 294 
 
 Errata 
 
 856 
 
 356, 523 
 
 817 
 
 768 
 
 705 
 
 42, 629, 904 
 
 1120 
 
 Williams v. Swansea Canal Navig. Co. 
 
 1363 
 Williams v. Thomas 
 Williams v. Tyley 
 Williams v. Walsby 
 Williams v. Wheeler 
 Williams v. Wilcox 
 Williams v. Williams 
 
 649 
 
 897 
 827 
 869 
 1558 
 5, 220, 346, 723, 
 850, 866, 1025 
 Williams v. Williams & Padfield 729 
 Williams v. Wilson 1467 
 
 Williams v. Younghusband 389 
 
 Williamson v. Allison 
 
 248 
 
 , 253 
 
 Williamson v. Barton 
 
 
 963 
 
 Williamson v. Page 
 
 
 451 
 
 Williamson v. Scott 
 
 
 719 
 
 Willingham v. Matthews 
 
 1115, 
 
 1118 
 
 Willins V. Smith 
 
 
 904 
 
 Willis V. Bernard 
 
 
 498 
 
 Willis V. Jernegan 
 
 
 679 
 
 Willis V. Langridge 
 
 
 699 
 
 Willis V. Newham 
 
 
 911 
 
 Willis V. Peckham 
 
 
 1045 
 
 Willman v. Worrall 
 
 1540, 
 
 1546 
 
 Willmett V. Harmer 
 
 
 128 
 
 Willock -B. Noble 
 
 
 901 
 
 Willoughby v. WiUoughby 
 
 
 5, 31 
 
 Wilson, Re 
 
 
 846 
 
 Wilson V. Allen 
 
 
 150 
 
 Wilson V. Beddard 
 
 
 890 
 
 Wilson V. Boerera 
 
 
 606 
 
 Wilson V. Bowie 
 
 370, 
 
 1512 
 
 Wilson V. Butler 
 
 
 108 
 
 Wilson V. T;ady Dunsany 
 
 
 1457 
 
 Wilson V. Finch Hatton 
 
 28? 
 
 , 983 
 
 Wilson V. Ford 
 
 
 200 
 
 Wilson V. Hoare 
 
 
 51 
 
 Wilson V. Men-y 
 
 
 988 
 
 Wilson u Mitchell 
 
 
 643 
 
 Wilson V. N. & Banb. Ry. 
 
 
 778 
 
 Wilson V. O'Leary 
 
 
 1023 
 
 Wilson V. Rastall 7 
 
 ■0, 780, 785 
 
 Wilson V. Robinson 
 
 
 315 
 
 Wilson V. Rogers 
 
 
 1257 
 
 Wilson v. Sewell 
 
 
 842 
 
 Wilson V. Sheriffs of London 
 
 
 1121 
 
 Wilson V. Turner 
 
 
 649 
 
 Wilson V. Wilson 
 
 
 143 
 
 Wilson's Trusts 
 
 
 1447 
 
 Wilton V. Dunn 
 
 119. 287 
 
 Wilton V. Webster 
 
 
 498 
 
 Wiltshire v. Sidford 
 
 
 137 
 
 Wiltzie V. Adamson 
 
 
 681 
 
 Windle v. Andrews 
 
 
 928 
 
TABLE OF CASES CITED. 
 
 xcvn 
 
 PAGE 
 
 Wing v. Angi-ave 210, 943 
 
 Winn V. Patterson 562 
 
 Winsor v. Dnrnford 1288 
 
 Wiusor v.U. 1140 
 
 Winter v. Miles 4 
 
 "Winter v. Wroot 498 
 
 Winterbottom v. Ld. Derby 149 
 
 Winterbottom v. Ingram 288 
 
 Wintle, Re 1479 
 
 Wisden v. Wisden 1034 
 
 Wise V. Great West. Ry. Co. 918 
 
 Wiseman's case 644 
 
 Wishart v. Wyllie 135 
 
 Witham v. Taylor 573 
 
 WithneU v. Gartham 523, 1006 
 
 Witmer v. Schlatter 1394 
 
 Witt V. Witt & Klindworth 496 
 
 Woganw Small 1190 
 
 Wolf V. Wyeth 472 
 
 Wolfe V. Washburn 1487 
 
 Wolff V. Koppell 863 
 
 Wolff u Oxholm 1449 
 
 Wollaston v. Hakewill 379, 1168 
 Wolverhampton N. W. Works Co. 
 
 V. Hawkesford 463 
 
 Womersley v. Daily 298 
 
 Wood, Re 101 
 
 Wood V. Anglo-Italian Bk. 1505 
 
 Wood V. Duke of Argyll 704 
 
 Wood V. Beard 834 
 
 Wood V. Braddick 511, 626 
 
 Wood V. Cooper 1180, 1183 
 
 Wood V. Drury 1533 
 
 Wood V. Fitz 22 
 
 Wood V. Jackson 1443 
 
 Wood V. Lake 818 
 
 Wood V. Leadbitter 817, 818 
 
 Wood V. Maokinson 1202, 1203 
 
 Wood V. Manley 818 
 
 Wood V. Midgley 855, 927 
 
 Wood V. Peel 478 
 
 Wood V. Priestner 1000 
 
 Wood V. Rowcliffe 1021 
 
 Wood V. Scarth 952 
 
 Wood V. Smith 215 
 
 Wood V Underhill 57 
 Wood V. Wood 173, 394, 901 
 
 Wood's Estate, Re 201 
 
 Woodbeck v. Keller 801, 806 
 
 Woodbridge v. Spooner 961 
 Woodcock V. Houldsworth 187, 1191 
 
 Woodcraft v. Kinaston 1294 
 
 Woodford v. Whiteley 395 
 
 Woodgate v. Potts 349 
 
 Woodham v. Edwards 9 
 
 Woodley v. Coventry 710 
 
 Woodley, Re 889 
 
 Woods V. Dean 233, 67S 
 
 Woods V. Lamb 203 
 
 Woods V. Woods 207, 778 
 
 Woodward, Re 898 
 
 Woodward v. Buchanan 296 
 
 Woodward «J. Cotton 1279,1280 
 
 Woodward v. Larking 718 
 
 I'AliH 
 
 Woolam V. Heai-n 945, 002 
 
 WooUey u N". Lond. Ry. Co. 1496 
 
 Woolmer v. Devereux 1491 
 
 Woolner v. Devereux 1491 
 
 Woolway v. Rowe 660, 662, 664 
 
 Wootlej' V. Gregory 843 
 
 Worcester's, L'Evesque de, case 8 
 
 Worlich V. Massy 28 
 
 Worsley v. Filisker 31 
 
 Worthington v. Grimsditch 908 
 
 Worthington v. Hylyer 1019 
 
 Worthington v. Sudlow 990 
 
 Worthington v. Warrington 981 
 
 Wotton, Re 889 
 
 Wray v. Steele 850 
 
 Wray, In re 170 
 
 Wright V. Colls 1473 
 
 Wright V. Court 510 
 
 Wright V. Crookes 949, 962 
 Wright V. Doe d. Tatham 357, 358, 414, 
 
 416, 490, 502, 503, 518, 1412, 1541 
 
 Wright V. Goddard 696 
 
 Wright V. Goff 931 
 
 Wright V. Goodlake 464, 465 
 
 Wright V. Graham 1320 
 
 Wright V. Holdgate 123, 799 
 
 Wright V. Lainsou 177 
 
 Wright V. Littler 606 
 Wright V. Lond. Gen. Omnibus Co. 1433 
 
 Wright V. Lond. & N.-W. Ry. Co. 987 
 
 Wright V. Ld. Maidstone 395 
 
 Wright V. Maude 1091 
 
 Wright V. Mills 102 
 
 Wright's Mortgage Trusts 939 
 
 Wright «. Netherwood 210 
 
 Wright V. Pearson 667 
 
 Wright V. Pulham 1391 
 
 Wright V. Rogers 887 
 
 Wright V. Rudd 524 
 
 Wright V. Sarmuda 210 
 
 Wright V. Shawcross 42 
 
 Wright u. Smythies 162 
 
 Wright V. Snowe 703 
 
 Wright V. Stavert 870 
 
 Wright V. Vanderplank 165 
 
 Wright V. Vernon 1504 
 
 Wright V. Wilcox 352 
 
 Wright V. Woodgate 133 
 
 Wright, Re 888 
 
 Wrightson V. Calvert 1020 
 
 Wyatt V. Batemai. 422, 1540 
 
 Wyatt V. Gore 796 
 
 Wyatt V. Harrison 139 
 
 Wyatt, Re 892 
 
 Wych V. Meal 635 
 
 Wyld V. Hopkins 705 
 
 Wyllie V. Mott 1083 
 
 Wyndham's divorce bill 498 
 
 Wynne v. Tyrwhitt 106, 578 
 
 Wynne v. Wjmne 280 
 
 Xeuos v. Wiekham 1526 
 
 Yabslbt v. Noble 636 
 
 Yarborough v. Bk. of England 824 
 
 Yardley v. Arnold 1168 
 9 
 
XCTIU 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Yates, ex parte, Re Smith 1516 
 
 Yates V. Camsew 622 
 
 Yates V. Maddan 174 
 Yates -v. Pym 972, 991 
 
 Yates v. Thomson 64 
 
 Yea V. Fouraker 904 
 
 Yearsley v. Heane 1122 
 
 Yearwood's Trusts, Re 799 
 
 Yeatmau ■;;. Dempsey 1070 
 
 Yeatman, ex parte 769 
 
 Yeats V, Pim 991 
 
 Yeats V. Yeats 1020 
 
 Yelverton v. Yelverton 1130 
 
 Yeomans v. Williams 703 
 
 Yorke v. Brown 1473 
 
 Yoter V. Sanno 798 
 
 Young V. Black 1419 
 
 Young V. Cawdrey 720 
 
 Young V. Clare Hall 683 
 
 Young «. Cole 985 
 
 Young V, Honner 1553 
 
 10 
 
 Young V. Lynch 
 Young V. Murphy 
 Young V, R. 
 Young V. Kaincock 
 Young V, Smith 
 Young V. Turing 
 Young V. "Wright 
 Younge v. Honner 
 Yrisavri u. Clement 
 Ystalyfera Iron Co. v. 
 
 Ry. Co. 
 Zachakias V, CoUis 
 Zarifi V. Thornton 
 Zichy Ferraris, Countess de, v. M, 
 
 of Hertford 885, 891, 899 
 
 Zouoh Peer. 537, 553 
 
 Zouch V. Clay 1525, 1527 
 
 Zouch V. "Wiilingale 52, 676 
 
 Zugasti V. Lamer 8 
 
 Zulueta V. Vinent 710 
 
 PAGE 
 
 1263 
 
 327 
 
 807 
 
 113, 114 
 
 636 
 
 189 
 
 648, 649 
 
 1653 
 
 3 
 
 Neath & Brecon 
 
 1366 
 
 170 
 
 462 
 
TABLE OF STATUTES CITED. 
 
 
 
 PAGE 
 
 ^' 
 
 
 
 PAGE 
 
 14 Ed. 3, c. 6 
 
 
 227 
 
 7 W. 3, c. 12, s. 11 
 
 Ir. 
 
 
 849 
 
 46 -Ed. 3 
 
 
 1252, 1255 
 
 s. 12, 
 
 Ir. 
 
 
 849 
 
 25 H. 8, c. 13, s. 2 
 
 
 275 
 
 s. 21, 
 
 Ir. 
 
 
 852 
 
 s. 13 
 
 
 275 
 
 8&9 W. 3,c. 11, 5 
 
 . 1 
 
 
 63 
 
 u. 14 
 
 
 802 
 
 9 & 10 W. 3, o. 17, 
 
 s. 1 
 
 
 928 
 
 27 H. 8, c. 16 
 
 
 935, 1374 
 
 
 5. 3 
 
 
 395 
 
 1 &2P. &M., c. 13 
 
 
 745 
 
 12 & 13 W. 3, c. 2, 
 
 s. 3 
 
 
 1229 
 
 2&3P. &M., c. 10 
 
 
 745 
 
 13 W. 3, c. 3, s. 2 
 
 
 
 803 
 
 5 El. c. 9, s. 12 
 
 
 1036, 1069 
 
 2 & 3 A. c. 4 
 
 
 939 
 
 , 1376 
 
 c. 26 
 
 
 935 
 
 s. 8 
 
 
 
 1376 
 
 13 El. c. 5 
 
 
 163 
 
 s. 12 
 
 
 
 1373 
 
 27 El. c. 2 
 
 
 671 
 
 s. 18 
 
 
 
 1376 
 
 31 El. c. 5, s. 5 
 
 
 92 
 
 3 & 4 A. c. 9 
 
 
 
 395 
 
 1 J. 1, u. 11, s. 2 
 
 
 207 
 
 s. 6 
 
 
 
 928 
 
 7 J. 1, 0. 12 
 
 
 600 
 
 4 A. u. 16, s. 20 
 
 
 
 928 
 
 21 J. 1, c. 16 87, 8J 
 
 , 586, 627, 628 
 
 5 A, c. 18 
 
 
 939 
 
 1376 
 
 s. 3 
 
 
 87, 628 
 
 s. 2 
 
 
 1376 
 
 1380 
 
 c. 27 
 
 
 131 
 
 s. 5 
 
 
 
 1373 
 
 10 C. 1, c. 18, Ir. 
 
 
 745 
 
 s. 9 
 
 
 
 1373 
 
 12 C. 2, 0. 24, s. 8 
 
 
 928 
 
 6 A. c. 2, Ir. 
 
 
 
 940 
 
 s. 9 
 
 
 928 
 
 c. 7, s. 3 
 
 
 
 95 
 
 14 & 15 C. 2, c. 2, Ir. 
 
 
 1476 
 
 c. 18 
 
 
 
 207 
 
 17 & 18 C. 2, c. 2, s. 5, I 
 
 I'. 
 
 1476 
 
 c. 35 
 
 
 
 940 
 
 19 C, 2, c. 6, s. 2 
 
 
 207 
 
 s. 11 
 
 
 
 1376 
 
 29 C. 2, c. 3 
 
 
 835, 851 
 
 s. 17 
 
 
 1376, 
 
 1380 
 
 s. 1 
 
 836 
 
 , 851, 925 
 
 s. 20 
 
 
 
 1372 
 
 s. 2 
 
 
 836 
 
 s. 22 
 
 
 
 1373 
 
 s. 3 
 
 
 838 
 
 s. 34 
 
 
 1373, 
 
 1376 
 
 s. 4 851, 
 
 853, 
 
 857, 861, 
 
 7 A. c. 11 
 
 
 
 93 
 
 863, 
 
 869, 
 
 872, 874, 
 
 C.20 
 
 
 940, 
 
 1376 
 
 875, 
 
 926, 
 
 955 
 
 s. 1 
 
 
 
 928 
 
 s. 5 
 
 
 882 
 
 s. 5 
 
 
 
 928 
 
 s. 7 
 
 
 849, 925 
 
 s. 6 
 
 
 
 1376 
 
 s. 8 
 
 
 849 
 
 s. 12 
 
 
 
 1372 
 
 s. 9 
 
 
 849 
 
 s. 19 
 
 
 
 1372 
 
 s. 17 852, 
 
 853, 
 
 861, 872, 
 
 c. 21 
 
 
 
 804 
 
 875 
 
 876 
 
 , 926, 955 
 
 s. 5 
 
 
 
 744 
 
 c. 7, s. 6 
 
 
 402 
 
 =. 11 
 
 1139, 
 
 1153, 
 
 1253 
 
 7 W. 3, c. 3 
 
 
 93, 804 
 
 10 A. c. 18 
 
 
 
 1539 
 
 s. 1 
 
 
 1253 
 
 1 G. 1, St. 2, o. 5, s. 
 
 8 
 
 
 95 
 
 o. 2 
 
 
 726, 801 
 
 1 G. 1, c. 30, s- 16 
 
 
 
 155 
 
 s. 4 
 
 
 801 
 
 2 G. 2, c. 23, s. 23 
 
 
 
 406 
 
 s. 5 
 
 
 93 
 
 c. 36, s. 8 
 
 
 
 408 
 
 s. 6 
 
 
 93 
 
 5 G. 2, c. 30, s. 1 
 
 
 
 271 
 
 s. 8 
 
 
 305, 803 
 
 7 G. 2, c. 8, s. 9 
 
 
 
 381 
 
 u. 12, Ir. 
 
 
 836 
 
 8 G. 2, c. 6 
 
 
 940, 
 
 1376 
 
 s. 1, Ir. 
 
 
 837, 838 
 
 B. 12 
 
 
 
 1376 
 
 s. 3, Ir. 
 
 
 882 
 
 s. 19 
 
 
 
 1373 
 
 s. 7, Ir. 
 
 
 851 
 
 s. 21 
 
 
 1376, 
 
 1380 
 
 s. 10, Ir. 
 
 
 849 
 
 s. 22 
 
 
 1376, 
 
 1381 
 
 ^ 
 
TABLE OF STATUTES CITED. 
 
 8 G. 2, c. 6, s. 27 
 
 
 PAGE 
 
 1373 
 
 44 G. 
 
 3, 0. 102 
 
 PARE 
 
 1071, 1072 
 
 9 G. 2, c. 5, Ir. 
 
 
 1379 
 
 45 G. 
 
 3, c. 92 
 
 1068 
 
 u. 36 
 
 162 
 
 1374 
 
 
 s. 3 
 
 1062 
 
 s. 1 
 
 928, 935 
 
 
 B. 4 
 
 1046, 1062 
 
 s. 3 
 
 
 935 
 
 46 G. 
 
 3, c. 37 
 
 1232 
 
 10 G. 2, u. 8 
 
 
 381 
 
 50 G. 
 
 3, c. 102, s. 5, Ir. 
 
 424, 440 
 
 11 G. 2, c. 19, s. 14 
 
 
 826 
 
 52 G. 
 
 3, 0. 146 
 
 1251, 1337 
 
 0. 16 
 
 
 1397 
 
 
 s. 1 
 
 562 
 
 ». 20 
 
 
 296 
 
 
 s. 5 
 
 562, 1266 
 
 s. 21 
 
 
 296 
 
 53 G. 
 
 3, c. 141 
 
 161, 937 
 
 14 G. 2, c. 6 
 
 
 258 
 
 
 s. 2 
 
 706, 937 
 
 15 G. 2, c. 34 
 
 
 275 
 
 
 =. 5 
 
 1610 
 
 17 G. 2, c. 3, s. 2 
 
 
 49 
 
 
 s. 10 
 
 937, 938 
 
 s. 3 
 
 
 1276 
 
 54 G. 
 
 3, c. 56, s. 4 
 
 925 
 
 25 G. 2, c. 4 
 
 940 
 
 , 1376 
 
 65 G. 
 
 3, c. 194 
 
 345 
 
 c. 14, Ir. 
 
 
 1379 
 
 56 G. 
 
 3, c. 87, s. 3, Ir. 
 
 424, 440 
 
 2 G. 3, u. 28 
 
 
 1396 
 
 
 c. 139, s. 1 
 
 158 
 
 5 G. 3, u. 21, s. 1, Ir. 
 
 
 1253 
 
 
 d. 2 
 
 158 
 
 6 G. 3, u. 36 
 
 
 339 
 
 67 G. 
 
 3, c. 90, s. 1 
 
 269 
 
 c. 53, s. 3 
 
 
 804 
 
 60 G. 
 
 3 & 1 G. 4, i:. 1, s. 7 
 
 95 
 
 9 G. 3, c. 16 
 
 
 89 
 
 
 c. 4, s. 8 
 
 1253 
 
 11 & 12 G. 3, e. 8, Ir. 
 
 
 1296 
 
 1 & 2 G. 4, c. 24, Ir. 726, 801, 803 
 
 12 G. 3, c. 19, s. 3, Ir. 
 
 
 1379 
 
 
 s. 2, Ir. 
 
 727, 805, 
 
 13 G. 3, c. 63 441 
 
 445, 455 
 
 1096 
 
 
 1139, 
 
 1153, 1263 
 
 s. 40 
 
 441, US 
 
 ,444, 
 
 
 c. 53, s. 24 
 
 1292 
 
 
 
 1306 
 
 
 >,. 25 
 
 1292 
 
 s. 4-2 
 
 
 442 
 
 
 c. 78, s. 1 
 
 262, 1516 
 
 s. 44 
 
 
 443 
 
 3G. 4 
 
 , 0. 39, s. 1 
 
 936, 1277 
 
 s. 45 
 
 
 443 
 
 
 s. 2 
 
 936 
 
 15 G. 3, c. 39 
 
 
 1108 
 
 
 s. 3 
 
 936, 1277 
 
 17 G. 3, u. 26 
 
 
 161 
 
 
 s. 5 
 
 1277 
 
 u. 30 
 
 
 928 
 
 
 c. 92 
 
 937 
 
 c. 56, o. 10 
 
 
 340 
 
 
 c. 126, s. 65 
 
 834 
 
 24 G. 3, c. 25, s. 74 
 
 
 1111 
 
 
 s. 67 
 
 834 
 
 a. 75 
 
 
 1111 
 
 
 s. 72 
 
 1277 
 
 s. 78 
 
 
 443 
 
 
 s. 73 
 
 1277 
 
 s. 81 
 
 Ui, 
 
 1111 
 
 4G. 4 
 
 , 0. 71, s. 7 
 
 441 
 
 26 G. 3, c. 57 
 
 
 1111 
 
 
 s. 17 
 
 441 
 
 s. 28 
 
 
 443 
 
 
 c. 76, a. 21 
 
 95 
 
 s. 38 
 
 
 1537 
 
 5G. 4 
 
 , v;. 83, s. 4 
 
 1152 
 
 32 G. 3, c. 60, s. 1 
 
 
 61 
 
 
 s. 9 
 
 1031 
 
 s. 2 
 
 
 61 
 
 
 c. 84, s. 22 
 
 1058 
 
 s. 3 
 
 
 61 
 
 
 s. 24 
 
 1354 
 
 s. 4 
 
 
 61 
 
 
 c. 96, s. 2 
 
 1095 
 
 33 G. 3, c. 52, s. 62 
 
 
 1117 
 
 
 s. 9 
 
 1095 
 
 c. 67, s. 8 
 
 
 95 
 
 6G. 4 
 
 , c. 16, s. 75 
 
 685 
 
 34 G. 3, c. 64 
 
 1402, 
 
 1407 
 
 
 c, 50, s. 9 
 
 1275 
 
 38 G. 3, c. 26, s. 2 
 
 
 1075 
 
 
 s. 19 
 
 1275 
 
 c. 87 
 
 
 660 
 
 
 s. 21 
 
 1153 
 
 39 & 40 G. 3, c. 79, s. 2 
 
 
 441 
 
 
 s. 23 
 
 481 
 
 s. 4 
 
 
 441 
 
 
 s. 24 
 
 481 
 
 s. 5 
 
 
 441 
 
 
 c. 86, s. 20 
 
 441 
 
 c. 93 
 
 727, 805, 
 
 1139, 
 
 
 c. 87, s. 20 
 
 1308 
 
 
 1153, 
 
 1253 
 
 
 c. 94 
 
 140 
 
 41 G. 3, c. 90, s. 9 
 
 
 1280 
 
 7G. 4 
 
 , c. 6 
 
 928 
 
 c. 109, s. 11 
 
 
 137 
 
 
 c. 46, 0. 4 
 
 1346, 1484 
 
 s. 33 
 
 
 1111 
 
 
 d. 6 
 
 1346, 1484 
 
 s. 34 
 
 
 1111 
 
 
 s. 9 
 
 278 
 
 s. 35 
 
 
 1349 
 
 
 s. 13 
 
 89 
 
 42 G. 3, 0. 85, s. 2 
 
 
 443 
 
 
 c. 64, 746, 1029, 1049, 
 
 1051,1054 
 
 s. 3 
 
 444, 
 
 1111 
 
 
 s. 2 
 
 430 
 
 c. 107, s. 1 
 
 
 339 
 
 
 s. 3 
 
 430, 752 
 
 43 G. 3, u. 58 
 
 98, 99 1 
 
 
 s. 4 437 
 
 , 759, 1029 
 
 u. 140 
 
 1071, 
 
 1073 1 
 
 
 s. 6 
 
 769. 1029 
 
TABLE OF STATUTES CITED. 
 
 Cl 
 
 
 
 
 
 PAGE 
 
 
 
 PAGE 
 
 7 G. 4, 0. 64, s. 14 
 
 
 
 
 278 
 
 1 & 2 ^Y. 
 
 4, c. 32, s. 30 
 
 376 
 
 s. 19 
 
 
 
 
 280 
 
 
 s. 42 
 
 345 
 
 s. 20 
 
 
 
 
 267 
 
 
 s. 44 
 
 1031 
 
 s. 22 
 
 
 
 
 1046 
 
 
 c. 37, s. 23 
 
 919, 925 
 
 ». 23 
 
 1047, 1048, 
 
 1059 
 
 
 s. 24 
 
 919, 925 
 
 =. 24 
 
 
 
 
 1048 
 
 
 c. 44, s. 8, Ir 
 
 1109 
 
 s. 25 
 
 
 
 
 1048 
 
 
 c. 58 
 
 709, 1401 
 
 s. 26 
 
 
 
 
 1051 
 
 
 s. 7 
 
 1466 
 
 s. 27 
 
 
 
 
 1048 
 
 
 c. Ixxvi. 
 
 1383 
 
 s. 28 
 
 1057, 1058, 
 
 1059 
 
 2 W. 4, L, 
 
 . 1, s. 15 
 
 1250, 1337 
 
 s. 29 
 
 
 
 
 1058 
 
 
 s. 20 
 
 1250 
 
 s. 30 
 
 
 
 
 1068 
 
 
 s. 21 
 
 936 
 
 s. 31 
 
 
 
 
 1029 
 
 
 s. 22 
 
 1250 
 
 e. 75 
 
 
 
 
 937 
 
 
 s. 26 
 
 1375 
 
 7 & 8 G. 4, c. 27 
 
 
 
 
 339 
 
 c 
 
 . 4 
 
 671 
 
 c. 28 
 
 
 
 
 322 
 
 c 
 
 . 16, s. 3 
 
 340 
 
 s. 
 
 11 
 
 
 
 1354 
 
 2&3W. 
 
 4, c. 45 
 
 1292 
 
 c. 29, s. 
 
 25 
 
 258 
 
 274, 275 
 
 
 u. 71, ». 1 
 
 91, 918 
 
 c. 30, s. 
 
 17 
 
 
 
 24 
 
 
 s. 2 
 
 91, 918 
 
 V. 53j S. 
 
 17 
 
 
 
 178 
 
 
 s. 3 
 
 91, 918 
 
 s. 
 
 42 
 
 
 
 1253 
 
 
 s. 4 
 
 91 
 
 s. 
 
 74 
 
 1107, 
 
 1109 
 
 
 s. 6. 
 
 91, 144 
 
 9 G. 4, c. 14, s. 1 
 
 8f 
 
 , 512, 
 
 627 
 
 628, 
 
 
 s. 7 
 
 91 
 
 
 
 647 
 
 901, 926 
 
 
 c. 87, s. 32 
 
 1378, 1379 
 
 s. 3 
 
 
 586 
 
 587, 588 
 
 
 c. 93, s. 1 
 
 1084 
 
 s. 4 
 
 
 
 
 628 
 
 
 u. 100 
 
 90 
 
 s. 5 
 
 
 
 
 912 
 
 
 s. 1 
 
 918 
 
 s. 6 
 
 
 
 913, 925 
 
 
 s. 8 
 
 144 
 
 =. 7 
 
 
 
 
 852 
 
 
 u. 107 
 
 255 
 
 u. 15 
 
 
 223 
 
 242, 247 
 
 
 u. 120, s. Ill 
 
 1108 
 
 c. 31 
 
 
 
 
 99 
 
 3&4W. 
 
 4, c. 15 
 
 60 
 
 s. 22 
 
 
 
 
 207 
 
 
 ». 2 
 
 345, 926 
 
 c. 41, s. 29 
 
 
 
 
 255 
 
 
 c. 22, s. 26 
 
 1111 
 
 s. 30 
 
 
 
 
 255 
 
 
 s. 27 
 
 1111 
 
 c. 54, Ir. 
 
 
 
 
 746 
 
 
 s. 29 
 
 1111 
 
 s. 2, 
 
 rr. 
 
 
 
 1030 
 
 
 c. 27 
 
 90, 915 
 
 s. 4, 
 
 [r. 
 
 437, 
 
 759 
 
 1029 
 
 
 s. 2 
 
 90 
 
 s. 6, 
 
 Ir. 
 
 
 
 759 
 
 
 s. 14 
 
 915, 916, 925 
 
 s. 34, 
 
 Ir. 
 
 
 
 1029 
 
 
 s. 16 
 
 90 
 
 c. 69, =. 4 
 
 
 
 
 93 
 
 
 s. 17 
 
 90 
 
 s. 6 
 
 
 
 
 1031 
 
 
 s. 24 
 
 90 
 
 s. 9 
 
 
 
 
 269 
 
 
 s. 25 
 
 90 
 
 u. 77, s. 2 
 
 
 
 
 1277 
 
 
 r,. 28, 90, 630, 915,925 
 
 10 G. 4, c. 34, s. 23 
 
 Ir. 
 
 
 
 1151 
 
 
 s. 29 
 
 90 
 
 c. 50, s. 63 
 
 
 
 
 936 
 
 
 s. 30 
 
 90 
 
 0. cxxiv. 
 
 
 
 
 1383 
 
 
 s. 33 
 
 90 
 
 11 G. 4 & 1 W. 4, c 
 
 20, 
 
 s. 48 
 
 
 882 
 
 
 s. 40 
 
 915, 925, 926 
 
 
 
 s. 50 
 
 
 882 
 
 
 c. 41, s. 7 
 
 1172 
 
 c 
 
 66, 
 
 s. 24 
 
 
 270 
 
 
 s. 19 
 
 1082 
 
 c 
 
 68 
 
 
 
 1392 
 
 
 c. 42, .s. 3, 92, 
 
 586, 628, 917 
 
 1 W. 4, c. 22 428 
 
 444, 445, 
 
 454 
 
 455, 
 
 
 s. 4 
 
 92 
 
 1071, 1096, 1097, 
 
 1318 
 
 
 s. 5,92,587,917,926 
 
 s. 1 
 
 
 
 445 
 
 , 450 
 
 " 
 
 ». 11 
 
 708 
 
 s. 2 
 
 
 
 
 1096 
 
 
 s. 23 
 
 223 
 
 s. 3 
 
 
 
 
 445 
 
 
 s. 24 
 
 223 
 
 =. 4 
 
 445, 
 
 450, 1096, 
 
 1112, 
 
 
 s. 26 
 
 1127 
 
 
 
 
 
 1537 
 
 
 s. 27 
 
 1127 
 
 s. 5 
 
 
 
 
 1096 
 
 
 s. 39 
 
 1094, 1319 
 
 s. 6 
 
 
 
 
 1071 
 
 
 s. 40 
 
 1094 
 
 s. 7 
 
 
 
 
 1097 
 
 
 0. 49 
 
 1166 
 
 s. 8 
 
 
 
 
 1097 
 
 
 c. 63, s. 1 
 
 158 
 
 s. 9 
 
 
 
 
 446 
 
 
 e. 74, =. 41 
 
 936 
 
 s. 10 
 
 
 
 452, 
 
 1318 
 
 
 s. 46 
 
 937 
 
 1 & 2 W. 4, c. 32, s. 
 
 23 
 
 
 
 1141 
 
 
 s. 49 
 
 937 
 
Cll 
 
 TABLE OF STATUTES CITED. 
 
 3 & 4 W. 4, c. 74, s. 51 
 
 s. 62 
 s. 69 
 s. 88 
 c. 82 
 
 t. 87, s. 1 
 s. 2 
 a. 4 
 u. 103 
 
 s. 11 
 s. 12 
 
 4 & 5 "W. 4, e. 22 
 
 c. 30, s. 10 
 s. 11 
 
 c. 36, s. 12 
 
 u. 76 
 
 s. 18 
 s. 39 
 s. 79 
 s. 81 
 
 5 & 6 W. 4, c. 50, s. 40 
 
 s. 73 
 c. 54 
 c. 62 
 c. 69 
 
 c. 76 
 
 G & 7 "W. 4, c. 14 
 c. 71, s. 
 
 s. 7 
 
 s. 5 
 =. 16 
 s. 17 
 H. 23 
 s. 48 
 s. 69 
 s. 93 
 
 2 
 2 
 64 
 
 c. 75, s. 36 
 
 c. 76, s. 19 
 
 c. 85, s. 5 
 
 s. 23 
 
 s. 37 
 
 s. 41 
 
 c. 86 
 
 ». 31 
 s. 35 
 s. 36 
 s. 37 
 s. 38 
 
 1266 
 
 13, 
 
 s. 41 
 89, s. 3 
 s. 6 
 c. 96 
 
 s. 5 
 c. 106, s. 9 
 s. 10 
 s. 19 
 s. 21 
 c. Ill 
 u. 114, s. 4 
 u. 115 
 
 s. 29 
 
 PAGE 
 
 937 
 
 937 
 
 937 
 1292 
 1166 
 
 940 
 940, 1349 
 1349 
 1299 
 1370 
 1370 
 
 169 
 1349 
 1349 
 1048 
 1106 
 1276 
 
 923 
 
 923 
 
 923 
 1276 
 1396 
 1406 
 1166 
 1106 
 
 822 
 1269, 1385 
 1269 
 1269 
 1269 
 1269 
 1269 
 1269 
 1269 
 1296 
 1119 
 1350 
 1350 
 1131 
 1227 
 1267 
 
 928 
 
 1371 
 
 94 
 
 , 1329,1330 
 
 928 
 
 1266, 1340 
 
 1266 
 
 1266 
 
 1339, 1342, 
 
 1479 
 
 94 
 
 1088 
 
 1088 
 
 1106 
 
 1276 
 
 1086 
 
 1087 
 
 10, 1294 
 
 1294 
 
 322 
 1254 
 1321 
 
 137 
 
 6 & 7 "W. 4, 0. 116, s. 105, Ir. 
 
 s. 106, Ir. 
 
 s. 107, Ir. 
 
 7 W. 4 & 1 v., c. 22, s. 5 
 
 c. 26 
 
 s. 1 
 s. 7 
 o. 9 
 s. 10 
 s. 11 
 s. 12 
 s. 13 
 s. 14 
 s. 17 
 
 B. 18 
 i3. 19 
 
 s. 20 
 s. 21 
 
 s. 22 
 s. 24 
 s. 33 
 s. 34 
 
 0. 28 
 c. 36, 
 
 c. 44 
 0. 50 
 
 u. 78, 
 0. 83 
 c. 85, 
 
 s. 20 
 s. 25 
 s. 26 
 
 s. 2 
 
 s. 3 
 
 ». 22 
 
 s. 2 
 
 s. 3 
 
 s. 11 
 
 1 & 2 v., c. 25, s. 2 
 0. 45, s. 2 
 
 c. 
 
 56, 
 77 
 94 
 
 121, Ir. 
 
 s. 1 
 s. 2 
 s. 9 
 s. 11 
 s. 12 
 s. 13 
 s. 20 
 
 ci. 
 105 
 
 s. 19 
 2& 3V., c. 11, s. 3 
 
 
 c. 
 
 47, 
 
 s. 
 
 24 
 
 
 u. 
 
 71, 
 
 S. 
 S. 
 
 40 
 53 
 
 
 C. 
 
 84 
 
 
 
 3&4 V. 
 
 , c 
 
 9, 
 
 s. 
 
 1 
 
 
 c. 
 
 24, 
 
 s. 
 
 2 
 
 
 c. 
 
 31, 
 
 s. 
 
 1 
 
 
 0. 
 
 59, 
 
 s. 
 
 1 
 
 881 
 881 
 
 I'AGE 
 1047 
 
 1059 
 
 1059 
 
 1371 
 
 1480 
 
 881, 888 
 
 881 
 
 122 
 
 881 
 
 , 882 
 
 , 892 
 
 882 
 
 882 
 
 1131 
 
 1131 
 
 893 
 
 893 
 
 894 
 
 900 
 
 1027 
 
 1027 
 
 122, 881, 
 
 899 
 
 90 
 
 1107 
 
 179 
 
 179 
 
 1048 
 
 1106 
 
 1089 
 
 1089 
 
 1269 
 
 1274 
 
 99 
 
 98 
 
 259 
 
 1106 
 
 709 
 
 12 
 
 1166 
 
 1245, 1248 
 1250 
 1250 
 1246 
 
 14 
 
 1246, 1285 
 15, 1285 
 
 1250 
 1383 
 1165 
 1278 
 1278 
 1278 
 1278 
 1396 
 1466 
 
 89 
 1106 
 1363 
 
 53 
 1321 
 1128 
 
TABLE OF STATUTES CITED. 
 
 cm 
 
 
 
 PAGE 
 
 
 PAGE 
 
 3 & 4 Y., c. 59, s. 2 
 
 
 1177 
 
 5&6 v., u. 51,s. 1 
 
 727, 805, 1139, 
 
 s. 3 
 
 
 1175 
 
 
 1153, 1253 
 
 s. 4 
 
 
 1206 
 
 .s. 2 
 
 805 
 
 c. 65 
 
 
 1294 
 
 c. 57, s. 18 
 
 1106 
 
 s. 7 
 
 
 1172 
 
 c. 69 
 
 469 
 
 s. 9 
 
 
 1084 
 
 u. 89, Ir. 
 
 1390 
 
 =. 11 
 
 
 1310 
 
 r. 94, s. 33 
 
 1380, 1381 
 
 s. 16 
 
 
 1310 
 
 c. 97, s. 3 
 
 294 
 
 0. 72, s. i 
 
 
 94 
 
 s. 5 
 
 88 
 
 c. 82, s. 2 
 
 
 1278 
 
 c. 100 
 
 1361 
 
 c. 86 
 
 
 811 
 
 s. 16 
 
 14, 1362 
 
 s. 17 
 
 
 1084 
 
 s. 17 
 
 1273 
 
 B. 20 
 
 
 94 
 
 u. 108, =. 29 
 
 1349 
 
 i;. 92 
 
 1267, 
 
 1327, 1330 
 
 u. 116 
 
 1534 
 
 s. 5 
 
 
 1268 
 
 6&7V.,c. 18, s. 5 
 
 1275 
 
 s. 6 
 
 
 1327 
 
 s. 7 
 
 922, 925 
 
 s. 9 
 
 
 13, 1340 
 
 s. 8 
 
 1275 
 
 s. 10 
 
 
 1340 
 
 s. 13 
 
 1275 
 
 s. 11 
 
 
 1340 
 
 s. 14 
 
 1275 
 
 ». 12 
 
 
 1341 
 
 s. 16 
 
 1276 
 
 o. 13 
 
 
 1341 
 
 s. 17 
 
 922, 925 
 
 s. 14 
 
 
 1341 
 
 s. 18 
 
 1275 
 
 s. 15 
 
 
 1341 
 
 ». 20 
 
 1275 
 
 s. 16 
 
 
 1342 
 
 s. 35 
 
 1093 
 
 s. 17 
 
 
 1335 
 
 s. 48 
 
 1331 
 
 s. 20 
 
 
 1327 
 
 s. 49 
 
 1275, 1331 
 
 c. 96, s. 22 
 
 
 340 
 
 s. 50 
 
 1093 
 
 s. 29 
 
 
 ■340 
 
 s. 51 
 
 1093 
 
 H. 30 
 
 
 340 
 
 s. 62 
 
 922, 925 
 
 c. 97, s. 7 
 
 
 1382 
 
 s. 66 
 
 1292 
 
 s. 9 
 
 
 1382 
 
 s. 68 
 
 1292 
 
 s. 10 
 
 
 1383 
 
 S. 100 
 
 188, 922 
 
 c. 105, Ir. 
 
 444, 
 
 455, 1071, 
 
 c. 22 
 
 1158 
 
 
 1097, 
 
 1098, 1318 
 
 u. 34, s. 4 
 
 426, 1305 
 
 ». 12, 
 
 Ir. 
 
 936 
 
 s. 9 
 
 1305 
 
 s. 48, 
 
 Ir. 
 
 223 
 
 c. 38, s. 9 
 
 1322 
 
 a. 49, 
 
 Ir. 
 
 223 
 
 s, 14 
 
 1294 
 
 s. 51, 
 
 Ir. 
 
 1127 
 
 c 40, s. 29 
 
 1031 
 
 s. 52, 
 
 Ir. 
 
 1127 
 
 c. 54, Ir. 
 
 90, 915 
 
 s. 63, 
 
 Ir. 
 
 1094, 1319 
 
 0. 65 
 
 1361 
 
 s. 64, 
 
 Ir. 
 
 1094 
 
 s. 6 
 
 14, 1362 
 
 s. 66, 
 
 Ir. 
 
 445, 1096 
 
 s. 7 
 
 14 
 
 =. 67, 
 
 Ir. 
 
 1096 
 
 s. 10 
 
 1273 
 
 =. 68, 
 
 Ir. 
 
 445 
 
 c. 66 
 
 936, 1277 
 
 s. 69, 
 
 Ir. 445 
 
 450, 1096, 
 
 u. 68, a. 17 
 
 342 
 
 
 
 1112 
 
 c. 73, s. 8 
 
 939 
 
 s. 70, 
 
 Ir. 
 
 1096 
 
 s. 11 
 
 1274 
 
 s. 71, 
 
 Ir. 
 
 1071 
 
 s. 20 
 
 939, 1274 
 
 s. 72, 
 
 Ir. 
 
 1097 
 
 s. 23 
 
 1274 
 
 =. 73, 
 
 Ir. 
 
 1097 
 
 s. 37 
 
 406 
 
 =. 74, 
 
 Ir. 
 
 446 
 
 c. 82, s. 5 
 
 1098 
 
 s. 75, 
 
 Ir. 
 
 452, 1318 
 
 s. 6 
 
 1098 
 
 c. 108, s. 12£ 
 
 , Ir. 
 
 1386 
 
 s. 7 
 
 1099 
 
 s. 127 
 
 , Ir. 
 
 1386 
 
 c. 83, s. 2 
 
 270 
 
 c. 110, s. 7 
 
 
 1346 
 
 u. 85 
 
 633, 1128 
 
 4 & 5 v., c. 45, b. 13 
 
 
 1111 
 
 s. 1 
 
 608, 1074, 1132, 
 
 H. 14 
 
 
 1111 
 
 
 1136 
 
 5 & 6 v., c'. 22 
 
 
 23 
 
 c. 86, s. 16 
 
 1350, 1483 
 
 c. 27, s. 14 
 
 
 1349 
 
 s. 20 
 
 340 
 
 c.'38 
 
 
 1437 
 
 s. 23 
 
 921, 925 
 
 c. 39, s. 1 
 
 
 140 
 
 s. 28 
 
 1433 
 
 u. 45 
 
 
 . 831, 928 
 
 c. 94, s. 1 
 
 25 
 
 s. 11 
 
 1273, 
 
 1331, 1343, 
 
 s. 2 
 
 25 
 
 
 
 1483 
 
 s. 3 
 
 25 
 
TABLE OP STATUTES CITED. 
 
 6 & 7 v., c. 
 
 7 & 8V., 
 
 s. 2 
 
 s. 6 
 
 s. 7 
 
 . 98, s. 4 
 
 7 
 
 12, s. 8 
 
 c. 15, a. 9 
 s. 10 
 s. 53 
 s. 54 
 s. 55 
 s. 67 
 c. 22, s. 2 
 s. 3 
 e. 27, Ir. 
 u. 29 
 
 u. 32, s. 15 
 0. 33, 3. 6 
 c. 45, 3. 2 
 c. 65, s. 30 
 s. 31 
 s. 33 
 s. 36 
 c. 76 
 
 8 & 
 
 s. 3 
 
 s. 4 
 
 s. 13 
 c. 81, s. 2, Ir. 
 
 s. 14, Ir. 
 
 s. 43, Ir. 
 
 ». 48, Ir. 
 
 o. 52, Ir. 
 
 ». 68, Jr. 
 
 s. 70, Ir. 
 
 s. 71, Ir. 
 
 s. 78, Ir. 
 c. 84, s. 58 
 
 s. 78 
 
 s. 85 
 
 s. 91 
 c. 85, s. 12 
 
 s. 23 
 c. 87, s. 9 
 c. 89 
 
 0. 91, s. 71 
 c. 92, 3. 17 
 c. 101, s. 33 
 
 s. 69 
 
 B. 70 
 
 s. 72 
 
 s. 73 
 
 s. 74 
 '5. 102 
 0. 105, s. 73 
 0. 106, s. 40, Ir. 
 s. 41, Ir. 
 s. 42, Ir. 
 c. 107, s. 11, Ir. 
 c. 110, s. 7 
 s. 25 
 9 v., c. 10 
 
 ». 6 800 
 
 PAGE 
 
 763 
 
 313, 694 
 
 100 
 
 130, 762 
 
 444, 1306 
 
 1227 
 
 1273, 1331, 1343, 
 
 1483 
 
 1370 
 
 1370 
 
 1370 
 
 343 
 
 343 
 
 1299 
 
 340 
 
 340 
 
 90, 915 
 
 93 
 
 1390 
 
 188 
 
 93 
 
 936 
 
 1374 
 
 1374 
 
 936 
 
 83.3, 836, 839 
 
 833 
 
 833 
 
 1267 
 
 1267 
 
 1371 
 
 94 
 
 1329, 1342 
 
 1266 
 
 1266 
 
 1329, 1342 
 
 94 
 
 1031 
 
 1278 
 
 1096 
 
 1278 
 
 1053, 1055 
 
 1.336 
 
 1031 
 
 1250, 1337 
 
 1277 
 
 1088 
 
 1276 
 
 1347, 1352 
 
 1106 
 
 188 
 
 935 
 
 1106 
 
 671, 1224 
 
 89 
 
 1047, 1048 
 
 1059 
 
 1059 
 
 1292 
 
 377 
 
 377 
 
 1467 
 
 1467 
 
 8 & 9 V. 
 
 • 
 
 PAGE 
 
 , c. 16, s. 7 
 
 871 
 
 s. 10 
 
 1270, 1366 
 
 s. 11 
 
 1365 
 
 s. 12 
 
 1365 
 
 s. 14 
 
 827 
 
 3. 28 
 
 1485 
 
 s. 40 
 
 1350 
 
 3. 45 
 
 1271 
 
 s. 63 
 
 1271 
 
 s. 97 
 
 .828 
 
 3. 98 
 
 1332 
 
 s. 115 
 
 1271 
 
 ». 116 
 
 1271 
 
 s. 117 
 
 1271 
 
 s. 118 
 
 1271 
 
 s. 119 
 
 1271 
 
 3. 124 
 
 1381 
 
 3. 125 
 
 1381 
 
 s. 126 
 
 1381 
 
 3. 127 
 
 1382 
 
 s. 135 
 
 188 
 
 s. 136 
 
 188 
 
 s. 161 
 
 1274 
 
 .:. 17, s. 101 
 
 1486 
 
 s. 165 
 
 1274 
 
 c. 18, s. 16 
 
 1366 
 
 3. 17 
 
 1366 
 
 s. 50 
 
 1300 
 
 3. 68 
 
 1401 
 
 3. 79 
 
 141 
 
 3. 134 
 
 188 
 
 s. 150 
 
 1274 
 
 u. 19, s. 142 
 
 1274, 1275 
 
 c. 20, 3. 9 
 
 1274 
 
 s. 10 
 
 1349 
 
 s. 66 
 
 1369 
 
 s. 67 
 
 1369 
 
 3. 107 
 
 1272 
 
 s. 108 
 
 1338, 1382 
 
 .s. 110 
 
 13-3 
 
 s. Ill 
 
 1338, 1382, 
 
 
 1383 
 
 s. 138 
 
 188 
 
 3. 162 
 
 1275 
 
 c. 33, 3. 9 
 
 1274 
 
 s. 153 
 
 1275 
 
 c. 37, s. 10, Ir. 
 
 1390 
 
 s. 25, Ir. 
 
 928 
 
 c, 69, Ir. 
 
 1390 
 
 c. 75, s. 1, Ir. 
 
 694 
 
 s. 2, Ir. 
 
 694 
 
 c. 77, 3. 3 
 
 342 
 
 u. 89, s. 34 
 
 832 
 
 u. 93, 3. 81 
 
 53 
 
 s. 83 
 
 53 
 
 c. 100 255 
 
 , 921, 1108, 
 
 
 1347, 1498 
 
 3. 7 
 
 1347 
 
 s. 100 
 
 1111 
 
 3. 101 
 
 nil 
 
 3. 108 
 
 188 
 
 e. 101, s. 6 
 
 1383 
 
 3. 7 
 
 1383 
 
 i;. 106 
 
 833 
 
TABLE OF STATUTES CITED. 
 
 CY 
 
 8 & 9 v., c. 106, s. 1 
 s. 2 
 3. 3 
 
 c. 109, s. 9 
 s. 18 
 
 t. 112, s. 1 
 
 3. 2 
 
 PAGE 
 
 833 
 
 833 
 
 834 
 
 1226 
 
 799 
 
 151 
 
 151, 152 
 
 s. 3 152 
 
 c. 113 14, 1280 
 
 s. 1 14, 22, 1292, 1318, 
 
 1339, 1351, 1358, 
 
 1363, 1373, 1376, 
 
 1382, 1383 
 
 s. 2 15, 22, 1323 
 
 s. 3 4, 5, 16, 28, 1279, 
 
 1284, 1311 
 
 s. 4 16 
 
 s. 5 17 
 
 c. 118, 3. 2 1348 
 
 o. 9 1111 
 
 s. 39 1111 
 
 s. 40 nil 
 
 s. 104 1321 
 
 s. 105 1321 
 
 3. 146 1342 
 
 s. 157 1321 
 
 s. 159 nil 
 
 s. 164 nil 
 
 c. 128, s. 3 342 
 
 9 & 10 v., 0. 3, s. 13 1275 
 
 c. 4, Ir. 1390 
 
 c. 37, s. 22, Ir. 1089 
 
 3. 28, Ir. 1089 
 
 s. 32, Ir. 1089 
 
 s. 35, Ir. 1089 
 
 o. 44, Ir. 1089 
 
 c. 39, s. 6 1275 
 
 c. 59 1224 
 
 c. 64, 3. 7, Ir. 1466 
 
 c. 70 1321 
 
 0. 74, s. 13 1334 
 
 s. 14 1277 
 
 u. 87, 3. 5, Ir. 1277 
 
 c. 93 1420 
 
 s. 3 88 
 
 c. 95, s. 3 12 
 
 s. 57 12 
 
 s. 63 1426 
 
 3. 83 1131, 1135 
 
 s. 86 1092, 1176 
 
 3. Ill 12, 1299 
 
 3. 138 296 
 
 c. 105, s. 2 1369, 1382 
 
 s. 4 1333, 1369 
 
 10 & 11 v., c. 14, 3. 7 1368 
 
 3. 8 1368 
 
 s. 32 1368 
 
 3. 42 1386 
 
 B. 49 1386 
 
 s. 50 1271 
 
 s. 58 1275 
 
 c. 15, s. 38 1272 
 
 3. 45 1275 
 
 u. 16, s. 31 1271 
 
 
 
 
 PAGE 
 
 10 k 11 v., c 
 
 16, s. 55 
 
 
 1271 
 
 
 3. 76 
 
 
 1271 
 
 
 s. 88 
 
 
 1271 
 
 
 s. 90 
 
 
 1271 
 
 
 3. 96 
 
 
 1386 
 
 
 s. 98 
 
 
 1386 
 
 
 a. 110 
 
 
 1275 
 
 u. 
 
 17, 3. 7 
 
 
 1368 
 
 
 s. 10 
 
 
 1368 
 
 
 s. 21 
 
 
 1274 
 
 
 s. 83 
 
 
 1272 
 
 
 3. 90 
 
 
 1275 
 
 C. 
 
 24, s. 5 
 
 
 1368 
 
 c. 
 
 27, 3. 7 
 
 
 1368 
 
 
 ». 10 
 
 
 1368 
 
 
 3. 26 
 
 
 1368 
 
 
 s. 50 
 
 
 1272 
 
 
 3. 83 
 
 
 1386 
 
 
 s. 90 
 
 
 1386 
 
 
 3. 97 
 
 
 1275 
 
 c. 
 
 32, s. 60 
 
 
 188 
 
 c. 
 
 34, 3. 20 
 
 
 1368 
 
 
 s. 200 
 
 
 1386 
 
 
 a. 207 
 
 
 1-386 
 
 
 3. 214 
 
 
 1275 
 
 c. 
 
 42 
 
 
 1351 
 
 u. 
 
 65, 3. 7 
 
 
 1368 
 
 
 3. 8 
 
 
 1368 
 
 
 s. 66 
 
 
 1275 
 
 c. 
 
 69, 3. 9 
 
 
 1363 
 
 c. 
 
 79, 3. 4, Ir. 
 
 
 1390 
 
 c. 
 
 82 
 
 
 1357 
 
 
 s. 1 
 
 
 1357 
 
 
 s. 3 
 
 
 1357 
 
 
 s. 11 
 
 
 1358 
 
 c. 
 
 89, 3. 71 
 
 
 1386 
 
 
 =. 77 
 
 
 1275 
 
 u. 
 
 90, a. 3, Ir. 
 
 12, 925 
 
 
 s. 12, Ir. 
 
 
 925 
 
 
 s. 18, Ir. 
 
 
 925 
 
 
 3. 19, Ir. 
 
 
 1110 
 
 
 3. 20, Ir. 
 
 
 1110 
 
 c. 
 
 109, 3. 5 
 
 
 12 
 
 
 3. 10 
 
 
 1276 
 
 
 3. 11 
 
 
 1110 
 
 
 s. 21 
 
 
 1110 
 
 
 =. 26 
 
 
 1110 
 
 
 s. 29 
 
 
 1276 
 
 u. 
 
 111 
 
 
 1321 
 
 11 & 12 v., u. 
 
 12, s. 10 
 
 
 1047 
 
 c. 
 
 31, s. 2 
 
 
 923 
 
 
 s. 9 
 
 
 923 
 
 c. 
 
 42 363, 
 
 746, 
 
 1028, 
 
 
 
 1103, 
 
 1105, 
 1305 
 
 
 3. 1 
 
 
 1029 
 
 
 s. 11 
 
 1106, 
 
 1305 
 
 
 s. 15 
 
 
 1305 
 
 
 3. 16 
 
 1029, 
 
 1060, 
 
 
 
 1103 
 
 1106 
 
 
 s. 17 424, 425 
 
 , 430, 
 
 
 434, 435, 748 
 
 
 s. 18 747, 748 
 
 , 749, 
 
 
 
 75 
 
 0, 752 
 
CYl 
 
 TABLE OF STATUTES CITED. 
 
 
 PAGE 
 
 
 
 PAGE 
 
 11 & 12 v., c. 42, s. 20 430,749,1029, 
 
 12 & 13 v., c. 
 
 109, s. 18 
 
 1375 
 
 
 1030, 1060 
 
 13 & 14 v., c 
 
 . 7, s. 1 
 
 1350 
 
 s. 21 
 
 48 
 
 
 s. 2 
 
 1350 
 
 s. 27 
 
 1254 
 
 c 
 
 17, 3. 2 
 
 677 
 
 s. 28 
 
 751 
 
 
 s. 3 
 
 885 
 
 s. 34 
 
 437, 759 
 
 
 
 21, ». 4 
 
 24 
 
 0. 43 
 
 1103, 1105, 
 
 
 s. 7 
 
 4, 1279 
 
 
 1107, 1305 
 
 
 s. 8 
 
 24 
 
 s. 3 
 
 1106, 1305 
 
 c 
 
 28, s. 3 
 
 928 
 
 s. 4 
 
 278 
 
 c 
 
 29, s. 6 
 
 1379 
 
 s. 7 
 
 1105, 1106 
 
 
 s. 7 
 
 1379 
 
 s. 35 
 
 1106 
 
 u. xxxiii., s. 18 
 
 1332 
 
 s. 36 
 
 92 
 
 u 
 
 36, a. 45 
 
 1559 
 
 c. 44, s. 4 
 
 1397 
 
 
 a. 46 
 
 32 
 
 8. 8 
 
 89 
 
 
 s. 47 
 
 32 
 
 s. 9 
 
 292 
 
 
 s. 48 
 
 32 
 
 s. 10 
 
 295 
 
 c. 
 
 37 
 
 1357 
 
 s. 11 295, 693, 694 
 
 c 
 
 43, s. 17 
 
 1087 
 
 o. 46, s. 4 
 
 243 
 
 
 s. 18 
 
 1087 
 
 c. 63, a. 35 
 
 12 
 
 u. 
 
 60, s. 44 
 
 1473 
 
 c. 83, s. 6 
 
 936, 1377 
 
 u. 
 
 61, s. 1 
 
 1426, 1427 
 
 s. 14 936 
 
 , 1374, 1378 
 
 c. 
 
 68 
 
 26 
 
 c. 94, s. 14 
 
 1292 
 
 C 
 
 69, Ir. 
 
 1275 
 
 s. 17 
 
 1380 
 
 
 s. 26, Ir. 
 
 922 
 
 c. 99 
 
 1321 
 
 
 s. 36, Ir. 
 
 922 
 
 c. 110, s. 11 
 
 1353 
 
 
 s. 56, Ir. 
 
 1094 
 
 c. 118, s. 3 
 
 95 
 
 
 s. 57, Ir. 
 
 1094 
 
 c. 121, s. 18 
 
 340 
 
 
 s. 75, Ir. 
 
 922 
 
 c. clxiii. s. 258 
 
 1108 
 
 
 s. 79, Ir. 
 
 1292 
 
 12 & 13 v., c. 1, s. 3 
 
 1401 
 
 
 s. 81, Ir. 
 
 1292 
 
 s. 5 
 
 1346 
 
 
 s. 113, Ir. 
 
 188, 922 
 
 s. 6 
 
 1331, 1337 
 
 
 a. 114, Ir. 
 
 188 
 
 s. 16 
 
 1351 
 
 u. 
 
 72, s. 9, Ir. 
 
 1379 
 
 u. 16, s. 8, Ir. 
 
 89 
 
 
 .s. 45, Ir. 
 
 13 
 
 u. 43, s. 1 
 
 5, 1285 
 
 
 s. 47, )r. 
 
 1378 
 
 0. 45, s. 1 
 
 922, 926 
 
 
 s. 52, Ir. 
 
 1278 
 
 s. 2 
 
 922 
 
 C 
 
 74, s. 10 
 
 1371 
 
 s. 10 
 
 243 
 
 C. 
 
 104, s. 12 
 
 1344 
 
 c. 68 
 
 1328, 1329 
 
 
 a. 13 
 
 1344 
 
 s. 11 
 
 928, 1342 
 
 
 s. 14 
 
 1344 
 
 s. 12 
 
 1342 
 
 
 s. 15 
 
 1362 
 
 s. 17 
 
 1359 
 
 14 & 15 V.,c. 
 
 19, s. 5 
 
 1431 
 
 s. 18 
 
 1342 
 
 
 s. 14 
 
 1049 
 
 s. 20 
 
 1338 
 
 c. 
 
 40, s. 11 
 
 928 
 
 c. 77, s. 2, Ir. 
 
 12 
 
 
 s. 21 
 
 1338 
 
 =. 43, Ir. 
 
 1473 
 
 
 s. 22 
 
 1330, 1338 
 
 s. 49, Ir. 
 
 1473 
 
 c. 
 
 42, s. 6 
 
 936 
 
 u. 78, a. 9 
 
 1363 
 
 c. 
 
 49, s. 4 
 
 1111 
 
 c. 89 
 
 23, 924 
 
 
 a. 5 
 
 ini 
 
 c. 92, s. 17 
 
 1108 
 
 c. 
 
 56, s. 1 
 
 1048 
 
 c. 97, s. 20 
 
 1384 
 
 
 s. 2 
 
 1049, 1059 
 
 c. 101, s. 14 
 
 1249 
 
 
 s. 4 
 
 1051 
 
 s. 16 
 
 1249 
 
 
 s. 5 
 
 1051 
 
 c. 106, s. 117 
 
 1229 
 
 
 s. 6 
 
 1061 
 
 s. 118 
 
 1135 
 
 
 s. 7 
 
 1055 
 
 s. 121 
 
 1091 
 
 
 s. 8 
 
 1059 
 
 0. 122 
 
 1091 
 
 c. 
 
 56, a. 2 
 
 188 
 
 0. 260 
 
 1091, 1229 
 
 c. 
 
 67, s. 10, Ir. 
 
 1299 
 
 c. 109, s. 11 
 
 10, 1290 
 
 
 s. 19, Ir. 
 
 595 
 
 s. 12 
 
 1374, 1375 
 
 
 s. 36, Ir. 
 
 1426 
 
 s. 13 
 
 1290, 1291 
 
 
 s. 97, Ir. 
 
 1299 
 
 s. 14 
 
 1292 
 
 
 s. 102, Ir. 
 
 1131 
 
 s. 15 
 
 ] '292 
 
 
 s. 106, Ir. 
 
 241 
 
 s. 17 
 
 10, 1370 
 
 
 a. 107, Ir. 
 
 1293 
 
TABLE OF STATUTES CITED. 
 
 evil 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 14 & 15 v., c. 57, s. 108 
 
 Ir. 
 
 1470 
 
 15 & 16 v., 
 
 c. 54, s. 6 
 
 
 296 
 
 s. 110 
 
 Ir. 
 
 1299 
 
 
 c. 56, s. 7 
 
 
 1369 
 
 s. 114 
 
 Ir. 
 
 1299 
 
 
 c. 67, s. 8 
 
 1112, 
 
 1226 
 
 c. 64, s. 1 
 
 
 1333, 1382 
 
 
 s. 12 
 
 
 1112 
 
 s. 3 
 
 
 1333, 1369 
 
 
 c. 63, Ir. 
 
 
 1330 
 
 c. 68, s. 16, 
 
 Ir. 
 
 1110 
 
 
 c. 76 
 
 
 1113 
 
 s. 17, 
 
 Ir. 
 
 1110 
 
 
 s. 12 
 
 
 1322 
 
 c. 92, s. 6, Ir. 
 
 1357 
 
 
 s. 13 
 
 
 1323 
 
 s. 13, 
 
 Ir. 
 
 7 
 
 
 s. 23 
 
 
 1307 
 
 u. 93, Ir. 
 
 
 363, 746 
 
 
 s. 34 
 
 
 223 
 
 a. 10, 
 
 Ir. 
 
 95 
 
 
 s. 35 
 
 
 223 
 
 S. 13, 
 
 Ir. 
 
 1029 
 
 
 s. 37 
 
 
 223 
 
 s. 14, 
 
 Ir. 
 
 48, 746, 
 1254 
 
 
 s. 49 
 s. 66 
 
 
 266 
 1456 
 
 s. 44, 
 
 Ir. 
 
 1029 
 
 
 s. 71 
 
 
 695 
 
 c. 94 
 
 
 484 
 
 
 s. 75 
 
 
 261 
 
 s. 18 
 
 
 1135 
 
 
 s. 80 
 
 
 1465 
 
 s. 31 
 
 
 1087 
 
 
 s. 81 
 
 
 1465 
 
 s. 40 
 
 
 1087 
 
 
 «. 85 
 
 
 616 
 
 s. 45 
 
 
 1274 
 
 
 H. 93 
 
 
 349 
 
 c. 99 18, 
 
 450 
 
 633, 1132, 
 
 
 H. 94 
 
 350 
 
 1113 
 
 1142, 
 
 1300, 1353 
 
 
 s. 106 
 
 
 1275 
 
 s. 1 
 
 
 1131 
 
 
 s. 108 
 
 
 1275 
 
 s. 2 
 
 
 1133 
 
 
 s. 114 
 
 
 481 
 
 s. 3 
 
 
 1133 
 
 
 s. 117 
 
 
 649 
 
 • s. 4 
 
 
 1134, 1144 
 
 
 s. 118 
 
 
 649 
 
 s. 6 
 
 
 1492 
 
 
 s. 119 
 
 
 404 
 
 s. 7 
 
 396 
 
 452, 1284, 
 1300 
 
 
 s. 124 
 B. 125 
 
 
 1322 
 1323 
 
 s. 9 
 
 
 1301 
 
 
 s. 128 
 
 
 250 
 
 s. 10 
 
 
 1301, 1302 
 
 
 s. 172 
 
 
 661 
 
 s. 11 
 
 
 64, 1301 
 
 
 s. 173 
 
 
 661 
 
 s. 13 
 
 
 1314, 1353 
 
 
 s. 180 
 
 
 264 
 
 s. 14 
 
 
 383, 1317, 
 
 
 s. 222 
 
 234, 240 
 
 
 
 1324, 1336, 
 
 
 0. 77, s. 1 
 
 
 1326 
 
 
 
 1340, 1380 
 
 
 c. 80, s. 30 
 
 
 1077 
 
 s. 16 
 
 
 1163 
 
 
 s. 31 
 
 
 1077 
 
 s. 18 
 
 
 1300 
 
 
 s. 40 
 
 
 31 
 
 s. 19 
 
 
 64, 1300 
 
 
 s. 41 
 
 
 31 
 
 s. 20 
 
 
 1132 
 
 
 c. 83, s. 2 
 
 13 
 
 1280 
 
 c. 100 
 
 
 243, 254 
 
 
 s. 9 
 
 
 939 
 
 s. 1 
 
 243, 268, 274, 
 
 
 s. 27 
 
 
 939 
 
 
 
 277 
 
 
 s. 28 
 
 
 939 
 
 s. 2 
 
 
 245 
 
 
 s. 29 
 
 
 939 
 
 s. 3 
 
 
 246 
 
 
 s. 34 
 
 
 939 
 
 s. 9 
 
 
 259, 1431 
 
 
 0. 39 
 
 
 939 
 
 s. 10 
 
 
 259 
 
 
 s. 42 
 
 
 483 
 
 s. 12 
 
 
 1428, 1430 
 
 
 s. 43 
 
 
 1364 
 
 s. 18 
 
 
 272 
 
 
 c. 85 
 
 
 1267 
 
 o. 22 
 
 
 1314, 1354 
 
 
 c. 86 
 
 20, 418 
 
 1316 
 
 s. 23 
 
 
 266, 267 
 
 
 s. 15 
 
 
 619 
 
 s. 24 
 
 256, 267, 270 
 
 
 s. 18 
 
 
 1492 
 
 s. 25 
 
 
 245, 267 
 
 
 s. 20 
 
 
 1492 
 
 0. 105, s. 10 
 
 
 923 
 
 
 s. 22 
 
 20 
 
 1308 
 
 s. 12 
 
 
 1471 
 
 
 s. 28 
 
 
 418 
 
 0. 106 
 
 
 1227 
 
 
 s. 31 
 
 447, 470 
 
 15 & 16 v., 0. 24 
 
 
 888 
 
 
 s. 32 
 
 470 
 
 1317 
 
 s. 1 
 
 
 888 
 
 
 s. 33 
 
 
 1076 
 
 s. 2 
 
 
 889 
 
 
 s. 34 
 
 470 
 
 1317 
 
 c. 27, s. 1 
 
 
 1128 
 
 
 s. 41 
 
 
 418 
 
 s. 2 
 
 
 1129 
 
 
 s. 49 
 
 
 223 
 
 s. 3 
 
 
 1199 
 
 
 s. 53 
 
 
 223 
 
 s. 4 
 
 
 1243 
 
 
 s. 54 
 
 60 
 
 2, 681 
 
 c. 28, s. 1 
 
 
 13 
 
 16 & 17 V. 
 
 , c. 20, s. 3 
 
 
 1129 
 
cvm 
 
 TABLE OF STATUTES CITED. 
 
 
 
 PAGE 
 
 
 
 PAGE 
 
 16&17 V.,c. 20, s. 4 
 
 
 1129 
 
 17 & 18 v., c. 80, 
 
 s. 58 
 
 1342 
 
 s. 5 
 
 
 1129 
 
 c. 81, 
 
 s. 45 
 
 29 
 
 s. 6 
 
 
 1130 
 
 c. 90 
 
 937, 
 
 1208, 1420, 
 
 c. 30, s. 9 
 
 
 1074 
 
 
 
 1510 
 
 c. 33 
 
 
 1351 
 
 
 3. 2 
 
 937 
 
 t. 66, s. 6 
 
 
 1376 
 
 u. 102, 
 
 s. 10 
 
 1049, 1437 
 
 u. 59, s. 19 
 
 
 87 
 
 
 s. 12 
 
 1061 
 
 t. 70, s. 38 
 
 
 1400 
 
 
 a. 13 
 
 1049 
 
 s. 57 
 
 
 21 
 
 
 s. 14 
 
 95 
 
 s. 60 
 
 
 1112 
 
 
 s. 35 
 
 1226 
 
 =. 100 
 
 
 1347 
 
 c. 104 
 
 
 925 
 
 c. 78, ». 6 
 
 
 20, 21 
 
 
 s. 2 
 
 832 
 
 ». 7 
 
 
 20 
 
 
 s. 7 
 
 1333, 1360 
 
 c. 83 496 
 
 ,633,643,1135, | 
 
 
 ». 15 
 
 1111 
 
 
 
 1142, 1149 
 
 
 a. 19 
 
 832 
 
 s. 1 
 
 
 1135 
 
 
 s. 65 
 
 831, 832 
 
 s. 2 
 
 
 1136, 1144 
 
 
 s. 76 
 
 832 
 
 s. 3 
 
 
 764, 1136 
 
 
 s. 92 
 
 1278 
 
 s. 4 
 
 1131, 
 
 1133, 1136 
 
 
 s. 107 
 
 1344, 1360, 
 
 <■,. 96 255, 
 
 921 
 
 1108, 1348 
 
 
 . 
 
 1482 
 
 c. 97 
 
 
 921, 1108 
 
 
 s. 138 
 
 1346, 1361 
 
 B. 128 
 
 
 1031 
 
 
 s. 142 
 
 920 
 
 s. 211 
 
 
 341 
 
 
 s. 149 
 
 920 
 
 c. 112, s. 12, 
 
 Ir. 
 
 1351, 1483 
 
 
 s. 150 
 
 920 
 
 s. 36, 
 
 Ir. 
 
 921, 925 
 
 
 s. 155 
 
 920 
 
 s. 66, 
 
 Ir. 
 
 1108 
 
 
 s. 159 • 
 
 920 
 
 ' c. 113, s. 3, Ir. 
 
 1127 
 
 
 s. 160 
 
 920 
 
 s. 20, 
 
 Ir. 
 
 87, 92, 586, 
 
 
 s. 163 
 
 920, 1513 
 
 
 587, 628, 917 
 
 
 s. 165 
 
 408 
 
 s. 23, 
 
 Ir. 
 
 92, 917 
 
 
 s. 173 
 
 1321 
 
 s. 24, 
 
 Ir. 92, 586, 587, 
 
 
 s. 175 
 
 920 
 
 627, 628, 901, 926 
 
 
 s. 249 
 
 1360 
 
 s. 30, 
 
 Ir. 
 
 1323 
 
 
 s. 270 
 
 1306 
 
 s. 47, 
 
 Ir. 
 
 483 
 
 
 s. 271 
 
 1331 
 
 ». 64, 
 
 Ir. 
 
 1492 
 
 
 s. 277 
 
 1278, 1331, 
 
 0. 69, 
 
 Ir. 
 
 294 
 
 
 
 1345 
 
 s. 85, 
 
 Ir. 
 
 223 
 
 
 s. 280 
 
 1331, 1338 
 
 ». 91, 
 
 Ir. 
 
 223 
 
 
 s. 285 
 
 1483 
 
 H. 118 
 
 , Ir. 
 
 649 
 
 
 s. 287 
 
 1331, 1338 
 
 s. 119 
 
 , Ir. 
 
 651 
 
 
 =. 296 
 
 1424 
 
 s. 120 
 
 , Ir. 
 
 404 
 
 
 s. 298 
 
 1424 
 
 s. 142 
 
 , Ir. 
 
 1323 
 
 
 s. 388 
 
 214 
 
 s. 231 
 
 , Ir. 
 
 223 
 
 
 s. 503 
 
 214 
 
 c. 115, s. 4 
 
 14 
 
 1280, 1343 
 
 
 s. 516 
 
 214 
 
 s. 5 
 
 
 14, 1280 
 
 
 s. 518 
 
 1049 
 
 c. 128, s. 1 
 
 
 1422 
 
 
 s. 525 
 
 95 
 
 r. 134, s. 8 
 
 
 1267 
 
 
 s. 526 
 
 1531 
 
 r. 137, s. 6 
 
 
 13 
 
 c. 122 
 
 , s. 15 
 
 1142 
 
 s. 8 
 
 
 1349 
 
 c. 125 
 
 
 395, 1112 
 
 s, 10 
 
 
 1110 
 
 
 s. 1 
 
 32, 708 
 
 s. 14 
 
 
 1110 
 
 
 s. 3 
 
 708 
 
 s. 61 
 
 
 1277 
 
 
 s. 15 
 
 708 
 
 17 & 18 v., e. 26, Ir. 
 
 
 1153, 1253 
 
 
 s. 18 
 
 1205 
 
 u. 31, s. 7 
 
 918, 926, 1392 
 
 
 s. 20 
 
 1167 
 
 c. 34 
 
 
 1063 
 
 
 s. 21 
 
 1167 
 
 i;. 36, s. 1 
 
 936 
 
 , 1337, 1376 
 
 
 s. 22 
 
 1199 
 
 s. 3 
 
 
 1277 
 
 
 B. 23 
 
 1216 
 
 u. 38, 0. 5 
 
 
 1226 
 
 
 s. 24 
 
 1217 
 
 o. 6 
 
 
 1226 
 
 
 s. 25 
 
 1210, 1353 
 
 0. 10 
 
 
 1031 
 
 
 3. 26 357, 375, 393. 
 
 c. 47 
 
 
 1172 
 
 
 
 1530 
 
 C. 55, a. 1, 
 
 Ir. 
 
 936 
 
 
 s. 27 
 
 1550 
 
 ». 3, 
 
 Ir. 
 
 1276 
 
 
 s. 31 
 
 362 
 
 c. 78, s. 8 
 
 
 21 
 
 
 s. 46 
 
 1112 
 
TABLE OF STATUTES CITED. 
 
 CIX 
 
 
 PAGE 
 
 
 
 PAGE 
 
 17 & 18 V. c. 125, s. 47 
 
 1112 
 
 19 & 20 v., c. 47, s. 41 
 
 
 829 
 
 s. 48 
 
 1112 
 
 c. 60, s. 5 
 
 
 985 
 
 s. 49 
 
 1112 
 
 s. 6 
 
 
 861, 913 
 
 s. 50 
 
 1492 
 
 3. 11 
 
 
 919 
 
 s. 51 
 
 457, 1235 
 
 s. 17 
 
 
 194 
 
 s. 52 
 
 457, 466 
 
 u. 64 
 
 
 275 
 
 s. 53 
 
 456, 457, 468, 
 
 u. 79, 3. 4 
 
 
 21 
 
 
 1113 
 
 s. 47 
 
 
 1302 
 
 s. 54 
 
 1113 
 
 s. 73 
 
 
 1303 
 
 s. 55 
 
 457 
 
 3. 77 
 
 
 1303 
 
 s. 56 
 
 457 
 
 s. 102 
 
 
 1303 
 
 s. 57 
 
 457 
 
 3. 140 
 
 
 1303 
 
 s. 58 
 
 482 
 
 3. 147 
 
 
 1303 
 
 s. 60 
 
 1113, 1416 
 
 =. 174 
 
 
 21, 1302 
 
 s. 65 
 
 1416 
 
 ■c. 94 
 
 
 8 
 
 s. 67 
 
 1416 
 
 c. 96, s. 2 
 
 
 1342 
 
 s. 87 
 
 395 
 
 c. 97 
 
 
 628, 861 
 
 s. 96 
 
 223 
 
 s. 3 
 
 853 
 
 , 861, 1000 
 
 s. 103 
 
 1167, 1200, 
 
 s. 6 
 
 
 919 
 
 
 1210, 1216, 
 
 3. 9 
 
 
 88 
 
 
 1217, 1530, 
 
 3. 10 
 
 
 92, 629 
 
 
 1550 
 
 s. 13 
 
 88, 628, 647, 
 
 18 & 19 V., G. 15, s. 2 
 
 1278 
 
 
 
 901, 926 
 
 s. 3 
 
 1278 
 
 s. 14 
 
 612, 628. 629 
 
 s. 12 
 
 939 
 
 K. 102, 3. 4, Ir. 
 
 32 
 
 „. 39, 3. -10 
 
 929, 1531 
 
 o. 21, 
 
 Ir. 
 
 1205 
 
 c. 41 
 
 811 
 
 s. 23, 
 
 Ir. 
 
 1167 
 
 i;. 42 
 
 19, 1163 
 
 B. 25, 
 
 Ir. 
 
 1200 
 
 s. 1 
 
 1308 
 
 8. 26, 
 
 Ir. 
 
 1216 
 
 =. 2 
 
 1309 
 
 8. 27, 
 
 Ir, 
 
 1217 
 
 D. 3 
 
 19, 1309 
 
 3. 28, 
 
 Ir. 
 
 1210, 1353 
 
 s. 4 
 
 20, 1309 
 
 :S. 29, 
 
 Ir. 
 
 357, 375, 
 
 ' s. 5 
 
 20, 1309 
 
 
 
 393, 1530 
 
 c. 43 
 
 121 
 
 .s. 30, 
 
 Ir. 
 
 1550 
 
 o. 63, s. 30 
 
 1346 
 
 s. 37, 
 
 Ir. 
 
 362 
 
 c. 67 
 
 160 
 
 8. 51, 
 
 Ir. 
 
 1112 
 
 u. 81, s. 11 
 
 1360 
 
 «. 52, 
 
 Ir. 
 
 1112 
 
 ^. 91, s. 15 
 
 1345, 1482 
 
 o. 53, 
 
 Ir. 
 
 1112 
 
 i;. 96, s. 36 
 
 1142 
 
 3. 54, 
 
 Ic 
 
 1112 
 
 c. 105, s. 15 
 
 921 
 
 4j. 55, 
 
 Ir. 
 
 1492 
 
 0. Ill, s. 3 
 
 104 
 
 K. 56, 
 
 Ir. 
 
 457 
 
 c. 119, 0. 82 
 
 1385 
 
 6. 58, 
 
 Ir. 
 
 1112 
 
 s. 89 
 
 342 
 
 e. 59, 
 
 Ir. 
 
 1112 
 
 8. 97 
 
 19 
 
 3. 62, 
 
 Ir. 
 
 457 
 
 c. 120, 3. 60 
 
 1334 
 
 s. 63, 
 
 Ir. 
 
 1416 
 
 s. 61 
 
 1277 
 
 3. 69, 
 
 Ir. 
 
 1416 
 
 3. 149 
 
 818 
 
 6. 90, 
 
 Jr. 
 
 395 
 
 s. 198 
 
 1277 
 
 ,s. 98, 
 
 Ir. 
 
 1167, 1200, 
 
 3. 199 
 
 1277 
 
 
 
 1210, 1216, 
 
 s. 203 
 
 1384 
 
 
 1217 
 
 1630, 1560 
 
 3. 221 
 
 188 
 
 «. 108, 3. 8 
 
 
 1299 
 
 3. 222 
 
 924 
 
 s. 57 
 
 
 241 
 
 ^ 124, 3. 4 
 
 13, 1349 
 
 3. 63 
 
 
 1537 
 
 s. 5 
 
 13, 1349 
 
 3. 66 
 
 
 1537 
 
 s. 6 
 
 1110 
 
 c. 113 
 
 
 1099, 1103 
 
 ». 9 
 
 1110 
 
 8. 1 
 
 
 1099 
 
 0. 42 
 
 940, 1376 
 
 «. 2 
 
 
 1100 
 
 3. 44 
 
 1277 
 
 8. 3 
 
 
 1100 
 
 c. 126, s. 7 
 
 1356 
 
 s. 4 
 
 
 1100 
 
 s. 14 
 
 1060 
 
 ■8. 5 
 
 
 1100 
 
 19&20V., c. 14, Ir. 
 
 925 
 
 8. 6 
 
 
 1100 
 
 c. 36, Ir. 
 
 1389 
 
 c. 119, s. 24 
 
 
 1360 
 
 c. 47, 3. 15 
 
 871 
 
 20&21V.,c.3 
 
 
 1437 
 
 3. 20 
 
 828 
 
 t. 2 
 
 
 16 
 
ex 
 
 TABLE OF STATUTES CITED. 
 
 
 
 PAGE 
 
 
 
 PACE 
 
 20&21 V.,c. 3, s. 5 
 
 
 17 
 
 20 & 21 v., c. 85, s. 27 
 
 798 
 
 , 1402 
 
 c. 60, s. 126, Ir. 
 
 
 1089 
 
 s. 31 
 
 
 1402 
 
 s. 267, Ir. 
 
 
 848 
 
 8. 33 
 
 177, 181 
 
 ,325, 
 
 s. 268, Ir. 
 
 
 848 
 
 
 327, 498 
 
 , 715, 
 
 s. 271, Ir. 
 
 
 847 
 
 
 798 
 
 1189 
 
 ». 272, Ir. 
 
 
 847 
 
 s. 41 
 
 
 1138 
 
 B. 306, Ir. 
 
 1167 
 
 ,1229 
 
 s. 43 
 
 
 1138 
 
 s. 307, Ir. 
 
 
 1167 
 
 8. 46 
 
 
 1138 
 
 s. 308, Ir. 
 
 
 1089 
 
 s. 47 
 
 
 455 
 
 s. 334, Ir. 
 
 
 936 
 
 s. 48 
 
 811 
 
 1138 
 
 s. 335, Ir. 
 
 
 936 
 
 8. 49 
 
 
 1083 
 
 s. 358, Ir. 
 
 
 1390 
 
 21 & 22 v., 0. 25 
 
 1267 
 
 1268 
 
 s. 361, Ir. 
 
 
 1295 
 
 s. 3 
 
 1341 
 
 1342 
 
 s. 362, Ir. 
 
 
 11, 22 
 
 c. 27 
 
 
 483 
 
 s. 364, Ir. 
 
 
 1390 
 
 a. 3 
 
 
 1064 
 
 s. 365, Ir. 
 
 
 439 
 
 8. 5 
 
 
 1064 
 
 ». 369, Ir. 
 
 
 1172 
 
 c. 42, Ir. - 
 
 91, 918 
 
 s. 385, Ir. 
 
 
 1229 
 
 c. 56, 8. 12 
 
 
 1324 
 
 c, 62, s. 14 
 
 
 1142 
 
 8. 13 
 
 
 1324 
 
 c. 77 384 
 
 , 719 
 
 1468 
 
 c. 70, 8. 2 
 
 
 1362 
 
 8. 3 
 
 
 811 
 
 c. 72, 8, 8, Ir. 
 
 
 11 
 
 s. 22 
 
 
 11 
 
 8. 23, Ir. 
 
 
 12 
 
 s. 24 
 
 
 1082 
 
 s. 33, Ir. 
 
 
 1088 
 
 8. 25 
 
 
 1083 
 
 s. 35, Ir. 
 
 
 1088 
 
 8. 26 
 
 
 1506 
 
 8. 51, Ir. 
 
 
 105 
 
 s. 32 
 
 
 455 
 
 s. 85, Ir. 
 
 
 104 
 
 s. 33 
 
 493, 811 
 
 c. 78, 8. 2 
 
 
 1080 
 
 0. 36 
 
 1064 
 
 1506 
 
 c. 87 
 
 
 95 
 
 0. 61 
 
 
 1469 
 
 c. 90, 8. 27 
 
 
 1369 
 
 B. 62 
 
 
 1469 
 
 8. 31 
 
 
 672 
 
 s. 63 
 
 
 1469 
 
 s. 32 
 
 182, 290 
 
 s. 64 
 
 
 1470 
 
 s. 34 
 
 
 290 
 
 s. 65 
 
 
 1470 
 
 =. 37 
 
 
 1370 
 
 8. 66 
 
 
 1252 
 
 a. 40 
 
 
 345 
 
 8. 67 
 
 
 1252 
 
 o. 93 
 
 
 1402 
 
 s. 68 
 
 
 1252 
 
 s. 1 
 
 
 470 
 
 s. 69 
 
 
 1325 
 
 s. 2 
 
 
 470 
 
 8. 86 
 
 
 1436 
 
 c. 94, 8. 20 
 
 
 188 
 
 8. 89 
 
 
 1251 
 
 c. 95, s. 23 
 
 
 1083 
 
 c. 79, Ir. 
 
 
 1468 
 
 s. 27 
 
 
 1251 
 
 =. 5, Ir, 
 
 
 811 
 
 s. 31 
 
 19, 
 
 1309 
 
 o. 27, Ir. 
 
 
 11 
 
 s. 32 
 
 
 21 
 
 s. 29, Ir. 
 
 
 1082 
 
 c. 98, a. 4 
 
 
 12 
 
 0. 30, Ir. 
 
 
 1083 
 
 c. 106, s. 56 
 
 5, 
 
 1285 
 
 s. 31, Ir. 
 
 
 1506 
 
 u. 108, s. 20 
 
 19, 
 
 1309 
 
 s. 37, Ir. 
 
 
 455 
 
 s. 21 
 
 
 21 
 
 8. 38, Ir. 
 
 493, 811 
 
 22 v., c. 20, 8. 1 
 
 
 1101 
 
 s. 42, Ir. 
 
 1062 
 
 1506 
 
 a. 2 
 
 
 1102 
 
 8. 65, Ir. 
 
 
 1469 
 
 8. 3 
 
 
 1102 
 
 8. 66, Ir. 
 
 
 1469 
 
 s. 4 
 
 
 1102 
 
 s. 68, Ir. 
 
 
 1470 
 
 8. 5 
 
 
 1102 
 
 s. 69, Ir. 
 
 
 1470 
 
 s. 6 
 
 
 1102 
 
 s. 71, Ir. 
 
 
 1252 
 
 u. 33, 8. 3 
 
 
 1254 
 
 0. 72, Ir. 
 
 
 1252 
 
 22&23 V.,i-, 17 
 
 
 1061 
 
 0. 73, Ir. 
 
 
 1252 
 
 c. 21, s. 9 
 
 
 240 
 
 B. 74, Ir. 
 
 
 1325 
 
 8. 16 
 
 455, 
 
 1112 
 
 8. 76, Ir. 
 
 
 1469 
 
 c. 35, 8. 12 
 
 
 928 
 
 s. 91, Ir. 
 
 
 1436 
 
 c. 63 
 
 
 9 
 
 s. 96, Ir. 
 
 
 1251 
 
 23&24 V,, u. 4, a. 9, Ir. 
 
 1330, 
 
 1343, 
 
 c. 85 
 
 
 644 
 
 
 
 1481 
 
 s. 2 
 
 
 811 
 
 0. 26, 8. 4, Ir. 
 
 
 1384 
 
 s. 7 
 
 
 1402 
 
 s. 5, Ir. 
 
 
 1384 
 
 s. 13 
 
 
 10 
 
 c. 28 
 
 
 381 
 
 8. 16 
 
 798, 
 
 1402 
 
 0. 32, Ir. 
 
 
 811 
 
TABLE OF STATUTES CITED. 
 
 CXI 
 
 
 
 PAGE 
 
 
 PAGE 
 
 23 & 24 v., 0. 34, s. 7 
 
 
 1503 
 
 24 & 25 v., c. 96 s. 66 
 
 342 
 
 u. 38, s. 13 
 
 
 916 
 
 s. 67 
 
 257 
 
 c. 58 
 
 
 89 
 
 s. 71 
 
 272, 308 
 
 0. 83, Ir. 
 
 
 121 
 
 s. 72 
 
 1430 
 
 c.l07,s. 32, Ir. 
 
 
 95 
 
 s. 74 
 
 271 
 
 s. 39, Ir. 
 
 
 1108 
 
 B. 75 
 
 1225 
 
 3. 40, Ir. 
 
 
 1108 
 
 s. 84 
 
 1225 
 
 y,. 126, s. 18 
 
 
 1466 
 
 s. 85 
 
 1226 
 
 s. 36 
 
 
 223 
 
 s. 86 
 
 1226, 1416 
 
 c. 127, s. 18 
 
 
 1370 
 
 s. 87 
 
 1437 
 
 s. 22 
 
 
 1370 
 
 s. 88 
 
 279, 1428, 1430 
 
 c. 134, s. 5 
 
 
 92 
 
 s. 91 
 
 1429 
 
 c. 149, s. 9 
 
 
 1249 
 
 s. 92 
 
 309 
 
 c. 154, s. 4, Ir. 
 
 
 837 
 
 s. 94 
 
 266 
 
 s. 6, Ir. 
 
 
 678 
 
 s. 109 
 
 1432 
 
 =. 7, Ir. 
 
 
 838 
 
 s. 110 
 
 1031, 1300 
 
 a. 9, Ir. 
 
 
 838 
 
 s. 112 
 
 1299 
 
 s. 23, Ir. 
 
 
 385 
 
 ti. 113 
 
 88, 295, 694 
 
 s. 24, Ir. 
 
 
 141 
 
 s. 116 
 
 322, 1354 
 
 s. 41, Ir. 
 
 
 982 
 
 s. 121 
 
 1049 
 
 s. 42, Ir. 
 
 
 983 
 
 0. 97, s. 20 
 
 271, 339 
 
 s. 43, Ir. 
 
 
 676 
 
 s. 21 
 
 271, 339 
 
 a. 47, Ir. 
 
 
 186 
 
 s. 51 
 
 271 
 
 o. 49, Ir. 
 
 
 169 
 
 s. 60 
 
 279 
 
 0. 104, Ir. 
 
 834 
 
 837, 
 
 s. 67 
 
 1432 
 
 
 
 838 
 
 s. 68 
 
 1031, 1300 
 
 s. 105, Ir 
 
 83? 
 
 , 838 
 
 i5. 70 
 
 1299 
 
 24 & 25 v., c. 5, s. 18 
 
 
 340 
 
 s. 71 
 
 88, 295. 694 
 
 s. 19 
 
 
 340 
 
 s. 77 
 
 1049 
 
 c. 9 
 
 
 935 
 
 u. 98, s. 9 
 
 340 
 
 ^. 10 
 
 1084, 
 
 1294 
 
 s. 10 
 
 340 
 
 0. 14 
 
 
 10 
 
 s. 11 
 
 340 
 
 s. 17 
 
 457, 
 
 1506 
 
 s. 14 
 
 340 
 
 s. 18 
 
 
 484 
 
 si, 16 
 
 340 
 
 s. 19 
 
 
 655 
 
 =. 17 
 
 340 
 
 s. 21 
 
 
 1085 
 
 0. 18 
 
 340 
 
 0. U 
 
 
 9 
 
 s. 19 
 
 340 
 
 u. 62 
 
 
 89 
 
 s. 27 
 
 17 
 
 u. 66, s. 1 
 
 
 1167 
 
 s. 28 
 
 17 
 
 c. 94, s. 1 
 
 
 1429 
 
 s. 29 
 
 17 
 
 c. 95 
 
 99, 259, 671 
 
 s. 42 
 
 276, 371 
 
 0. 96, s. 5 
 
 
 309 
 
 s. 43 
 
 276 
 
 s. 6 
 
 
 309 
 
 ». 44 
 
 279 
 
 s. 10 
 
 274, 275 
 
 ». 54 
 
 1049 
 
 s. 13 
 
 
 339 
 
 c. 99, s. 6 
 
 340 
 
 s. 14 
 
 
 342 
 
 s. 7 
 
 340 
 
 s. 24 
 
 
 269 
 
 s. 8 
 
 340 
 
 s. 26 
 
 
 269 
 
 s. 12 
 
 1428 
 
 s. 28 
 
 
 1226 
 
 s. 14 
 
 340 
 
 s. 29 
 
 280 
 
 1226 
 
 s. 19 
 
 340 
 
 s. 30 
 
 
 280 
 
 a. 24 
 
 340 
 
 s. 31 
 
 
 280 
 
 0. 25 
 
 340 
 
 s. 32 
 
 
 271 
 
 s. 29 
 
 479 
 
 =. 35 
 
 
 342 
 
 s. 33 
 
 88, 295, 694 
 
 s. 40 
 
 
 257 
 
 s. 37 
 
 322, 1354 
 
 s. 41 
 
 259 
 
 1431 
 
 s. 42 
 
 1047, 1049 
 
 s. 43 
 
 
 257 
 
 i;. 100 
 
 99 
 
 s. 44 
 
 
 62 
 
 s, 6 
 
 273 
 
 s. 46 
 
 
 62 
 
 =. 25 
 
 259, 1431 
 
 s. 56 
 
 
 257 
 
 s. 42 
 
 1356 
 
 s. 58 
 
 322, 340 
 
 s. 43 
 
 1356 
 
 s. 60 
 
 257, 271 
 
 s. 44 
 
 1356 
 
 s. 71 
 
 
 257 
 
 s. 45 
 
 1356, 1432 
 
 s. 65 
 
 
 342 
 
 8. 48 
 
 121 
 
cxn 
 
 TABLE OF STATUTES CITED. 
 
 
 PAGE 
 
 24&25 V.,c. 100, s. 52 
 
 121, 258 
 
 s. 53 
 
 1151 
 
 0. 54 
 
 1151 
 
 s. 57 
 
 181, 207 
 
 s. 60 
 
 131, 259 
 
 s. 77 
 
 1049 
 
 c. 101 
 
 161, 259, 340 
 
 c. 104, s. 10 
 
 441 
 
 s. 11 
 
 441 
 
 c. 114, s. 3 
 
 893 
 
 .;. 117 
 
 1370 
 
 c. 134, s, 27 
 
 1298 
 
 o. 102 
 
 1229 
 
 B. 189 
 
 1229 
 
 s. 203 
 
 1296 
 
 6. 204 
 
 11,22 
 
 B. 206 
 
 1298 
 
 s. 211 
 
 1167 
 
 25&26 V.,u.l7 
 
 935 
 
 t. 53, s. 2 
 
 1372 
 
 ». 9 
 
 143 
 
 s. 68 
 
 1372 
 
 8. 70 
 
 1372 
 
 s. 71 
 
 1372 
 
 s. 123 
 
 12 
 
 c. 59, 8. 1, Ir. 
 
 667 
 
 s. 2, Ir. 
 
 141 
 
 c. 63, s. 5 
 
 1361 
 
 a 10 
 
 1361 
 
 s. 12 
 
 1361 
 
 s. 25 
 
 7 
 
 8. 26 
 
 7, 1334, 1345 
 
 =. 28 
 
 7 
 
 o. 54 
 
 214 
 
 c. 67, =. 22 
 
 1372 
 
 L 68, a. 3 
 
 926 
 
 8. 4 
 
 1273, 1344 
 
 8. 5 1273, 1344, 1483 
 
 c. 86, s. 4 
 
 1400 
 
 s. 18 
 
 1112 
 
 c. 88, 8. 11 
 
 1226 
 
 s. 18 
 
 95 
 
 8. 19 
 
 987 
 
 3. 20 
 
 987 
 
 c. 89 
 
 828, 829 
 
 =. 11 
 
 830 
 
 s. 16 
 
 830 
 
 a. 18 
 
 377, 1364 
 
 s. 22 
 
 871 
 
 s. 25 
 
 1483 
 
 s. 29 
 
 1483 
 
 8. 31 
 
 1365 
 
 K. 32 
 
 1270 
 
 8. 37 
 
 1483 
 
 .s. 47 
 
 830 
 
 d. 55 
 
 830 
 
 ». 61 
 
 1343 
 
 b. 62 
 
 188 
 
 ». 63 
 
 188 
 
 s. 64 
 
 924 
 
 s. 67 
 
 1332, 1485 
 
 n. 115 
 
 1078 
 
 ti. 125 
 
 14, 22 
 
 b. 126 
 
 1078 
 
 PARK 
 
 25 & 26 v., c. 89, s. 154 ■ 1485 
 
 s. 174 1270, 1331, 
 
 1343, 1364, 1365 
 
 B. 192 1364 
 
 c. 104 22, 1264 
 
 c. Ill 1108 
 
 8. 46 1111 
 
 26 & 27 v., c. 11, s. 5, Ir. 13, 1329, 
 
 1342 
 
 8. 50, Ir. 1266 
 
 s. 52, Ir. 1266 
 
 c. 27, 3. 2, Ir. 1267 
 
 s. 3, Ir. 1267 
 
 s. 16, Ir. 94, 1392 
 
 c. 29, s. 1 95 
 
 s. 5 95 
 
 3. 7 1226 
 
 o. 10 1226 
 
 L. 41, s. 1 194 
 
 8. 2 195 
 
 s. 3 195 
 
 s. 4 195 
 
 e. 49, s. 2 10 
 
 s. SO 936 
 
 s. 31 936, 1374 
 
 ». 32 936, 1374 
 
 s. 33 936 
 
 c. 56 1346 
 
 c. 65, 3. 24 1346 
 
 s. 29 1356 
 
 c. 87, 8. 4 1339 
 
 c. 88, s. 3, Ir. 13 
 
 8. 5, Ir. 13 
 
 c. 90, Ir. 1342 
 
 li. 100, a. 1, Sc. 667 
 
 8. 2, Sc. 141 
 
 c. 106 929 
 
 c. 113, 6. 5 1226 
 
 c. 114, 8. 33, Ir. 13 
 
 a. 38, Ir. 1110 
 
 c. 119, 8. 6 1226 
 
 u. 124, 3. 5 130 
 
 u. 125 163,600,601,1036 
 
 27&28 Y., I. 13 935 
 
 <;. 19 830 
 
 c. 20, 3. 1, Ir. 929 
 
 c. 25, 8. 61 89 
 
 c. 37, 8. 10 343 
 
 c. 47, 3. 2 16, 1282 
 
 s. 5 17 
 
 c. 48, 3. 5 1384 
 
 =. 6 343, 1299, 1370 
 
 i;. 53, 3. 5 243 
 
 s. 6 1103 
 
 8. 8 1103 
 
 s. 10 1103 
 
 3. 24 95 
 
 s. 35 89 
 
 u. 54, s. 9, Ir. 11 
 
 8. 37, Ir. 1172 
 
 s. 50, Ir. 11 
 
 c. 77, 8. 7 1328 
 
 3. 8 1329, 1338 
 
 s. 9 1269, 1329 
 
TABLE OP STATUTES CITED. 
 
 CXIU 
 
 PAGE 
 
 27 & 28 v., c. 77, s. 10 1329, 1338 
 
 a. 13 20 
 
 s. 14 20 
 
 s. 15 20 
 
 s. 16 20 
 
 c. 95 88, 1420 
 
 c. 97, s. 5 1340, 1480 
 
 s. 6 1267, 1340 
 
 c. 99, s. 43, Ir. 1075 
 
 s. 48, Ir. 242 
 
 s. 49, Ir. 243 
 
 s. 52, Ir. 1041 
 
 s. 57, Ir. 1299, 1312 
 
 c. 101, s. 12 1311, 1348 
 
 c. 113, s. 33 1385 
 
 c. 120, s. 18 1368 
 
 =. 30 1368 
 
 c. 121, s. 20 1368 
 
 s. 60 1368 
 
 28 & 29 v., c. 9 1167 
 
 c. 18, s. 1 1200, 1209, 1216, 
 
 1217, 1219, 
 
 1530, 1551 
 
 s. 2 1205 
 
 s. 3 1200 
 
 s. 4 1216 
 
 s. 5 1217, 1219 
 
 s. 6 1184, 1209, 1353 
 
 s. 7 1530 
 
 s. 8 1551, 1554 
 
 c. 27, s. 3 1363 
 
 s. 5 1363 
 
 c. 50, Ir. 667 
 
 s. 7, Ir. 141 
 
 c. 60 667 
 
 >j. 2 141 
 
 c. 63, s. 6 18 
 
 0. 72 882 
 
 c. 78 830, 1272 
 
 c. 86 192 
 
 c. 88, s. 9, Ir. 1372 
 
 3. 16, Ir. 1372 
 
 s. 18, Ir. 1872 
 
 s. 20, Ir. 1372 
 
 s. 21, Ir. 1372 
 
 s. 32, Ir. 1372 
 
 s. 56, Ir. 12 
 
 H. 59, Ir. 1226 
 
 0. 104, s. 18 21 
 
 s. 33 1142 
 
 s. 34 1142 
 
 s. 43 21 
 
 c. 112, s. 1 882 
 
 c. 118, s. 2, Ir. 1389 
 
 c. 126, s. 50 89 
 
 29 & 30 v., 0. 4, Ir. 343 
 
 c. 44, s. 21, Ir. 1384 
 
 s. 23, Ir. 1384 
 
 c. 49, s. 20, Ir. 1348 
 
 s. 21, Ir. 13 
 
 c. 52 1059 
 
 s. 1 1060 
 
 c. 57 935 
 
 0. 66, s. 7 1110 
 
 29 & 30 v., c. 84, s. 12, Ir. 
 
 s. 15, Ir. 
 
 s. 26, Ir. 
 
 s. 28, Ir. 
 
 s. 29, Ir. 
 
 s. 32, Ir. 
 c. 96 
 
 ». 4 
 
 s. 7 
 c. 97, s. 7, Ir. 
 
 s. 12, Ir. 
 c. 108, s. 7 
 
 s. 12 
 
 c. 109 
 
 PAGE 
 
 939 
 
 1274 
 
 1274 
 
 1370 
 
 1274 
 
 1370 
 
 1337 
 
 936 
 
 1277 
 
 1350 
 
 1483 
 
 1272 
 
 1272 
 
 1272 
 
 1272 
 
 4, 1284 
 
 s. 48 260 
 
 s. 54 95 
 
 s. 61 1086 
 
 a. 66 1086, 1118 
 
 s. 92 1121, 1143 
 
 c. 112 446 
 
 c. 117, s. 4 1358 
 
 s. 33 1346, 1348, 
 
 1358, 1359, 1389 
 
 c. 118, s. 7 1359 
 
 a. 9 1359 
 
 s. 24 1348 
 
 s. 29] 1346 
 
 s. 30 1358 
 
 s. 46 1359 
 
 30 & 31 v., 0. 35, s. 2 1061 
 
 s. 3 434, 1030, 1060 
 
 s. 4 435, 1030, 1060 
 
 s. 5 1060 
 
 s. 6 435 
 
 c. 44, Ir. 1316 
 
 s. 68, Ir. 619 
 
 s. 71, Ir. 1492 
 
 s. 73,lr. 1492 
 
 s. 81, Ir. 21 
 
 s. 87, Ir. 418 
 
 ri. 92, Ir. 470 
 
 s. 98, Ir. 470 
 
 s. 99, Ir. 1317 
 
 s. 100, Ir. 1076, 1492 
 
 s. 101, Ir. 1241 
 
 s. 102, Ir. 1317 
 
 s. 138, Ir. 1077 
 
 s. 139, Ir. 1077 
 
 =. 154, Ir. 223 
 
 ii. 158, Ir. 223 
 
 s. 159, Ir. 602, 681 
 
 0. 58, s. 172 96 
 
 s. 175 1103 
 
 s. 179 1103 
 
 s. 181 1103 
 
 c. 59 155, 339 
 
 c. 70, Ir. 1245 
 
 s. 3, Ir. 1250 
 
 s. 4, Ir. 1248 
 
 s. 5, Ir. 1250 
 
 s. 17, Ir. 1246 
 
 s. 18, Ir. 14 
 
 h 
 
CXIT 
 
 TABLE OF STATUTES CITED. 
 
 
 
 
 PAGE 
 
 
 PAGE 
 
 30 & 31 v., c.'70, s. 19, 
 
 Ir. 
 
 1246 
 
 , 1286 
 
 32 & 33 v., c. 56, a. 49 
 
 1110 
 
 H. 20, 
 
 Ir. 
 
 
 1286 
 
 s. 57 
 
 188 
 
 0. 101, s. 61 
 
 
 
 1350 
 
 c. 57, s. 4 
 
 341 
 
 c. 102, s. 6 
 
 
 
 1481 
 
 s. 5 
 
 341 
 
 c. 103, s. 14 
 
 
 343 
 
 1370 
 
 s. 6 
 
 89, 295, 694, 
 
 c. 105, s. 4 
 
 
 
 1095 
 
 1031, 1299, 1432 
 
 0. 114, Ir. 
 
 
 
 1294 
 
 0.62 
 
 935 
 
 a. 21, 
 
 Ir. 
 
 
 10 
 
 s. 11 
 
 271, 343, 757 
 
 s. 41, 
 
 Ir. 
 
 457 
 
 , 1506 
 
 s. 12 
 
 271, 343 
 
 3. 50, 
 
 Ir. 
 
 
 1172 
 
 s. 17 
 
 1050 
 
 s. 52, 
 
 Ir. 
 
 
 1085 
 
 s. 18 
 
 1061 
 
 s. 57, 
 
 Ir. 
 
 
 21 
 
 s. 19 
 
 276 
 
 s. 61, 
 
 Ir. 
 
 
 1310 
 
 s. 20 
 
 1437 
 
 s. 65, 
 
 Ir. 
 
 
 1310 
 
 a. 24 
 
 929 
 
 s. 66, 
 
 Ir. 
 
 
 484 
 
 s. 25 
 
 929 
 
 s. 67, 
 
 Ir. 
 
 
 655 
 
 s. 26 
 
 936, 1277 
 
 s. 69, 
 
 Ir. 
 
 
 1085 
 
 s. 27 
 
 936, 1277 
 
 s. 104 
 
 , Iv 
 
 
 1082 
 
 s. 28 
 
 1277 
 
 s. 106 
 
 , Ir 
 
 
 1082 
 
 0. 67, s. 45 
 
 87, 1481 
 
 c. 116, s. 1 
 
 
 
 1430 
 
 s. 64 
 
 1343 
 
 c. 131, s. 37 
 
 
 
 829 
 
 a. 65 
 
 188 
 
 0. 134, 0. 17 
 
 
 
 340 
 
 s. 67 
 
 1276 
 
 c. 142, s. 5 
 
 
 
 52 
 
 s. 69 
 
 1276 
 
 31 v., u. 4, s. 1 
 
 
 
 166 
 
 c. 68 1135, 1138, 1409 
 
 31 & 32 Y., c. 20, Ir. 
 
 
 
 470 
 
 s. 1 1134, 1136, 1137 
 
 c. 25, s. 6, 
 
 [r. 
 
 
 1359 
 
 s. 2 
 
 1137 
 
 s. 8, Ir. 
 
 
 1359 
 
 s. 3 
 
 799, 1138 
 
 s. 18, 
 
 Ir. 
 
 
 1348 
 
 s. 4 
 
 1158, 1261 
 
 s. 23, 
 
 Ir. 
 
 
 1346 
 
 c. 70, B. 33 
 
 1371 
 
 s. 24, 
 
 Jr. 
 
 
 1358 
 
 s. 43 
 
 1484 
 
 s. 36, 
 
 Ir. 
 
 
 1359 
 
 s. 57 
 
 343, 986 
 
 c. 37 
 
 
 23 
 
 1281 
 
 s. 58 
 
 343 
 
 ii. 2 
 
 
 5, 23, 
 
 1281, 
 
 s. 84 
 
 1348 
 
 
 
 
 1388 
 
 s. 110 
 
 295 
 
 s. 3 
 
 
 
 1282 
 
 s. Ill 
 
 295 
 
 s. 4 
 
 
 16 
 
 1282 
 
 s. 112 
 
 295 
 
 s. 5 
 
 23, 
 
 1282 
 
 1388 
 
 s. 113 
 
 295 
 
 s. 6 
 
 
 
 1283 
 
 c. 71 
 
 1089, 1295 
 
 c. 44 
 
 
 
 935 
 
 3. 4 
 
 848 
 
 c. 45, s. 24 
 
 
 
 1483 
 
 s. 10 
 
 1296, 1462 
 
 s. 61 
 
 
 
 1306 
 
 3. 11 
 
 176 
 
 c. 59, s. 4, Ir. 
 
 
 1359 
 
 3. 15 
 
 872 
 
 a. 5, Ir. 
 
 
 1359 
 
 a. 17 
 
 848 
 
 !i. 29, 
 
 Ir. 
 
 1346, 
 
 1348, 
 
 s. 18 
 
 1296, 1463 
 
 
 
 1358, 
 
 1389 
 
 s. 19 
 
 1229 
 
 c. 86, s. 1 
 
 
 
 832 
 
 3. 23 
 
 49, 846, 847 
 
 s. 2 
 
 
 
 832 
 
 3. 24 
 
 49, 846, 847 
 
 c. Ill 
 
 
 13, 
 
 1110 
 
 3. 28 
 
 86 
 
 c. 116, s. 2 
 
 
 
 1060 
 
 s. 47 
 
 1296, 1462 
 
 c. 118, s. 8 
 
 
 
 86 
 
 3. 49 
 
 1464 
 
 c. 119, s. 39 
 
 
 
 1333 
 
 s. 53 
 
 1463 
 
 s. 47 
 
 
 
 1333 ' 
 
 s. 65 
 
 29, 1091 
 
 c. 121, 0. 13 
 
 
 
 1369 
 
 3. 66 
 
 1091 
 
 c. 125 
 
 
 
 95 
 
 s. 75 
 
 456 
 
 s. 15 
 
 
 
 1112 
 
 3. 78 
 
 29 
 
 s. 31 
 
 
 
 1079 
 
 3. 80 
 
 921 
 
 s. 32 
 
 
 
 1079 
 
 s. 81 
 
 1463 
 
 s. 33 
 
 
 1226, 
 
 1358 
 
 3. 83 
 
 848, 1463 
 
 s. 34 
 
 
 
 1038 
 
 s. 91 
 
 101 
 
 s. 56 
 
 
 1112,1226 1 
 
 8. 92 
 
 101 
 
 82 & 33 v., c. 24 
 
 
 
 1227 
 
 s. 96 
 
 1089, 1091, 
 
 c. 41, s. 18 
 
 
 372, 
 
 1337 
 
 
 1092. 1167 
 
 c. 42, s. 21, 
 
 Ir. 
 
 Errata | 
 
 s. 97 757, 1091. 1167 
 
 c. 56, s. 47 
 
 
 
 86 1 
 
 s. 105 
 
 631 
 
TABLE OF STATUTES CITED. 
 
 CXV 
 
 
 
 PAGE 
 
 
 PAGE 
 
 32 & 33 v., c. 71, s. 106 
 
 
 1296 
 
 33&34V„c. 97, s. 17 
 
 361 
 
 s. 107 
 
 
 1296 
 
 s. 18 
 
 1472 
 
 s. 108 
 
 
 439 
 
 =. 19 
 
 1472 
 
 s. 109 
 
 11, 22 
 
 s. 52 
 
 87, 287 
 
 s. 125 29 
 
 ,848, 
 
 1256, 
 
 s. 93 
 
 385, 662 
 
 
 1296, 
 
 1463, 
 
 c. 98, s. 18 
 
 340 
 
 
 
 1464 
 
 s. 22 
 
 340 
 
 s. 126 
 
 29, 
 
 1256 
 
 c. 110, s. 11, Ir. 
 
 10 
 
 s. 127 
 
 86, 
 
 1464 
 
 3. 24, Ir. 
 
 455 
 
 c. 81, s. 5 
 
 
 1356 
 
 34 & 35 v., c. 9, s. 13 
 
 1121 
 
 c. 83, s. 20 
 
 
 1298 
 
 c. 10, s. 17 
 
 1121 
 
 c. 89, s. 10 
 
 
 1060 
 
 c. 22, s. 25, Ir. 
 
 21 
 
 a. 11 
 
 
 1060 
 
 c. 31, s. 13 
 
 1367 
 
 c. 92, Ir. 13 
 
 1110 
 
 1350 
 
 c. 41, s. 20 
 
 191 
 
 s. 14, Ir. 
 
 
 1483 
 
 s. 38 
 
 344 
 
 c. 102, ij. 13 
 
 
 1481 
 
 c. 43, s. 27 
 
 1367 
 
 c. 115, s. 6 
 
 
 1351 
 
 s. 46 
 
 1367 
 
 3. 8 
 
 
 1351 
 
 s. 50 
 
 1367 
 
 s. 11 
 
 
 1351 
 
 s. 69 
 
 188 
 
 s. 15 
 
 
 1351 
 
 c. 49, s. 6, Ir. 
 
 1083 
 
 c. 117, s. 1 
 
 
 1369 
 
 s. 8, Ir. 
 
 811 
 
 33&34V.,c. 14,8. 12 
 
 1281 
 
 1344 
 
 s. 16, Ir. 
 
 19, 1309 
 
 c. 19 
 
 1361, 
 
 1368 
 
 s. 17, Ir. 
 
 21 
 
 c. 20, s. 11 
 
 
 1272 
 
 c. 65, s. 12, Ir. 
 
 1275 
 
 s. 15 
 
 
 830 
 
 B. 18, Ir. 
 
 1275 
 
 c. 23, s. 1 
 
 
 802 
 
 s. 38, Ir. 
 
 481 
 
 s. 10 
 
 
 848 
 
 c. 70 
 
 1276 
 
 s. 18 
 
 
 848 
 
 s. 2 1109,1283,1471 
 
 H. 31 
 
 
 802 
 
 s. 5 12, 925, 1283 
 
 c. 28, s. 4 
 
 
 919 
 
 c. 74 
 
 974 
 
 s. 8 
 
 
 919 
 
 c. 78, s. 4 
 
 1110 
 
 s. 9 
 
 
 919 
 
 s. 7 
 
 1110 
 
 c. 35 
 
 
 962 
 
 a. 11 
 
 1110 
 
 s. 2 
 
 
 169 
 
 a. 15 
 
 1110 
 
 H. 5 
 
 
 169 
 
 s. 17 
 
 1383 
 
 s. 7 
 
 
 169 
 
 c. 79, s. 1 
 
 919 
 
 c. 36, Ir. 
 
 
 343 
 
 c. 83, s. 1 
 
 1082 
 
 c. 46, s. 31, Ir. 
 
 
 29 
 
 c. 96, s. 20 
 
 344 
 
 s. 41, Ir. 
 
 
 29 
 
 c. 97, s. 1 
 
 919 
 
 s. 58, Ir. 
 
 
 161 
 
 c. 103, s. 5 
 
 89 
 
 c. 49, s. 1 
 
 
 1161 
 
 c. 104 
 
 1106 
 
 0.52 
 
 
 1103 
 
 o. 105, s. 15 
 
 344 
 
 s. 5 
 
 
 1390 
 
 c. 112, s. 9 
 
 322, 1354 
 
 s. 14 
 
 
 1304 
 
 s. 15 
 
 1152 
 
 s. 15 
 
 
 1304 
 
 s. 17 
 
 344 
 
 s. 24 
 
 
 1103 
 
 s. 18 
 
 1353 
 
 c. 60, s. 2 
 
 
 381 
 
 s. 19 
 
 • 318, 322 
 
 u. 62 
 
 1299, 
 
 1370 
 
 s. 20 
 
 322, 1354 
 
 c. 75, s. 30 
 
 
 1485 
 
 c. 113, B. 23 
 
 1272 
 
 s. 64 
 
 
 1359 
 
 s. 25 
 
 1385 
 
 s. 81 
 
 
 188 
 
 s. 27 
 
 1272 
 
 s. 83 
 
 1283 
 
 1359 
 
 c. 10 
 
 1478 
 
 s. 87 
 
 
 1270 
 
 c. 24, s. 1 
 
 1864 
 
 u. 79, =. 21 
 
 1281, 
 
 1283 
 
 s. 6 
 
 1364 
 
 c. 90, s. 9 
 
 
 341 
 
 c. 33 1276, 
 
 1331, 1343, 
 
 c. 91 
 
 
 935 
 
 
 1482 
 
 s. 7 
 
 
 1380 
 
 c. 38, s. 11 
 
 844 
 
 c. 93 
 
 
 848 
 
 o. 44 
 
 1336 
 
 s. 1 
 
 
 646 
 
 c. 46, s. 1 
 
 1095 
 
 s. 11 
 
 
 646 
 
 c. 48, s. 2, Ir. 
 
 134, 1477 
 
 s. 12 
 
 
 1413 
 
 s. 3, Ir. 
 
 134, 1389, 
 
 c. 97 832, 875, 
 
 1537 
 
 
 1477 
 
 s. 2 
 
 
 1472 
 
 s. 4, Ir. 
 
 134, 1477 
 
 s. 16 
 
 
 361 
 
 c. 57, s. 11, Ir. 
 
 271, 343 
 
Cxvi 
 
 TABLE OP STATUTES CITED. 
 
 
 
 
 PAGE 
 
 
 
 PAGE 
 
 35 & 86 Y., c. 57, s. 12, 
 
 Ir. 
 
 271, 343 
 
 36 & 37 v., c. 66, s. 16 
 
 
 493 
 
 s. 17, 
 
 Ir. 
 
 
 1052 
 
 s. 24 
 
 
 4,7 
 
 s. 18, 
 
 Ir. 
 
 
 1061 
 
 s. 25 
 
 4,168, 184, 831, 
 
 s. 19, 
 
 Ir. 
 
 
 276 
 
 
 
 847, 1539 
 
 s. 23, 
 
 Ir. 
 
 
 929 
 
 s. 56 
 
 
 221 
 
 s. 24, 
 
 Ir. 
 
 
 929 
 
 s. 57 
 
 221, 1094, 1499 
 
 c. 58, 0. 6, 
 
 Ir. 
 
 11,22,1090 
 
 s. 61 
 
 
 10 
 
 s. 36, 
 
 Ir. 
 
 
 1298 
 
 s. 67 
 
 
 52 
 
 s. 52, 
 
 Ir. 
 
 
 101 
 
 s. 87 
 
 
 28, 934, 1370 
 
 s. 53, 
 
 Ir. 
 
 
 101 
 
 c. 71, s. 45 
 
 
 1385 
 
 s. 57, 
 
 Ir. 
 
 
 1463 
 
 c. 77, s. 22 
 
 
 1346 
 
 s. 58, 
 
 Ir. 
 
 
 1463 
 
 s. 36 
 
 
 344 
 
 s. 64, 
 
 Ir. 
 
 
 1463 
 
 c. 85, s. 7 
 
 
 920 
 
 s. 73, 
 
 Ir. 
 
 
 1075 
 
 s. 8 
 
 
 920 
 
 ;=. 74, 
 
 Ir. 
 
 
 1075 
 
 s. 16 
 
 
 213 
 
 o. 90, 
 
 Ir. 
 
 
 1296 
 
 s. 17 
 
 
 213, &rata 
 
 s. 91, 
 
 Ir. 
 
 
 848 
 
 c. 86, s. 24 
 
 
 344, 1359 
 
 s. 97, 
 
 Ir. 
 
 
 847 
 
 c. 89, s. 14 
 
 
 29 
 
 s. 98, 
 
 Ir. 
 
 
 847 
 
 37 & 38 v., ^. 35 
 
 
 1127 
 
 s. lis 
 
 , Ir. 
 
 
 1296 
 
 c. 36 
 
 
 1437 
 
 s. lie 
 
 , Ir. 
 
 
 1463 
 
 c. 42, s. 20 
 
 
 1346, 1366 
 
 s. 121 
 
 , Ir. 
 
 
 848 
 
 s. 42 
 
 
 847 
 
 s. 124 
 
 , Ir. 
 
 
 29 
 
 c. 44 
 
 
 1299, 1370 
 
 c. 60, s. 3 
 
 
 95 
 
 , 1062 
 
 c. 50 
 
 
 693 
 
 o. 9 
 
 
 
 1049 
 
 s. 1 
 
 
 693, 1413 
 
 S.16 
 
 1038, 1079, 1266 
 
 =. 2 
 
 
 693, 1413 
 
 c. 65, s. 4 
 
 800 
 
 809 
 
 ,1467 
 
 =. 5 
 
 
 693 
 
 c. 69, s. 2, 
 
 Ir. 
 
 
 1384 
 
 c. 57 
 
 
 90, 915 
 
 s. 4, Ir. 12 
 
 925 
 
 1384 
 
 s. 7 630, 
 
 915, 925, 926 
 
 s. 5, Ir. 
 
 1109 
 
 ,1384 
 
 s. 8 
 
 
 916, 926 
 
 c. 73, s. 4 
 
 
 
 1278 
 
 s. 12 
 
 
 916 
 
 c. 76 
 
 
 
 1384 
 
 c. 62 
 
 
 122 
 
 s. 59 
 
 
 
 1384 
 
 s. 2 
 
 
 912 
 
 s. 61 
 
 
 
 1031 
 
 c. 64, is. 1 
 
 
 1130 
 
 s. 63 
 
 95 
 
 344 
 
 1143 
 
 >i. 2 
 
 
 1130 
 
 s. 70 
 
 
 
 60 
 
 i;. 67, s. 8 
 
 
 1384 
 
 s. 71 
 
 
 
 188 
 
 c. 69, s. 35, 
 
 Ir. 
 
 1344 
 
 c. 77, s. 30 
 
 
 
 1384 
 
 s. 36, 
 
 Ir. 
 
 1344 
 
 s. 32 
 
 
 
 1031 
 
 c. 78, s. 1 
 
 
 91 
 
 s. 34 
 
 95, 
 
 344, 
 
 1143 
 
 3. 2 
 
 
 146 
 
 s. 39 
 
 
 
 60 
 
 c. 81 
 
 
 1380 
 
 s. 40 
 
 
 
 188 
 
 ri. 5 
 
 
 1291 
 
 c. 93 
 
 
 
 920 
 
 s. 6 
 
 
 939 
 
 s. 8 
 
 
 
 130 
 
 s. 10 
 
 
 1291 
 
 s. 23 
 
 
 
 343 
 
 ■ c. 84, s. 2 
 
 
 13 
 
 s. 24 
 
 
 921, 925 
 
 e. 85, s. 9 
 
 
 1084 
 
 s. 25 
 
 
 
 141 
 
 c. 87, s. 1 
 
 
 1110 
 
 s. 31 
 
 
 
 343 
 
 c. 88 
 
 
 1266 
 
 c. 94, s. 51 
 
 
 344 
 
 1143 
 
 s. 32 
 
 
 1266, 1339 
 
 s. 58 
 
 
 
 1344 
 
 ii. 38 
 
 
 1479 
 
 H. 70 
 
 
 
 188 
 
 s. 46 
 
 
 94 
 
 !6 & 37 v., .;. 9, s. 5 
 
 
 80C 
 
 , 809 
 
 s. 64 
 
 
 1266 
 
 c. 33 
 
 
 
 1486 
 
 c. 94, s. 13 
 
 
 90 
 
 s. 2 
 
 
 
 1386 
 
 s. 34 
 
 
 90 
 
 c. 36, s. 5 
 
 
 
 1337 
 
 c. 96 
 
 
 1133, 1278 
 
 s. 6 
 
 
 
 1285 
 
 38 & 39 v., 0. 14, Ir. 
 
 
 1389 
 
 c. 48, s. 4 
 
 
 
 13 
 
 c. 17, s. 34 
 
 
 11385 
 
 ». 21 
 
 
 
 1110 
 
 s. 38 
 
 
 1385 
 
 o. 25 
 
 
 
 1110 
 
 s. 60 
 
 
 1348 
 
 a. 30 
 
 
 
 1333 
 
 8. 84 
 
 
 1385 
 
 s. 35 
 
 
 
 188 
 
 s. 85 
 
 
 188 
 
 c. 60, s. 4 
 
 
 
 1305 
 
 c. 22, s. 8 
 
 
 187 
 
 s. 5 
 
 
 
 1103 
 
 s. 9 
 
 
 1287 
 
 c. 66 
 
 
 
 16 
 
 c. 25, s. 4 
 
 
 341 
 
TABLE OF STATUTES CITED. 
 
 CXTll 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 &39V.,c. 26, s. 7 
 
 
 341 
 
 38 & 39 v., c. 
 
 83, s. 23 
 
 
 1483 
 
 s. 8 
 
 
 341 
 
 
 s. 24 
 
 1272 
 
 1483 
 
 s. 9 
 
 
 341 
 
 c. 
 
 86, s. 4 
 
 
 1143 
 
 c. 50, s. 2 
 
 
 1092 
 
 
 s. 5 
 
 
 1143 
 
 c. 65 342, 
 
 1348, 
 
 1350, 
 1487 
 
 
 s. 6 
 s. 11 
 
 
 1143 
 1143 
 
 s. 7 
 
 
 12 
 
 c. 
 
 87, s. 5 
 
 
 1372 
 
 s. 44 
 
 
 1386 
 
 
 s. 10 
 
 
 1372 
 
 s. 59 
 
 
 191 
 
 
 s. 16 
 
 
 1372 
 
 s. 60 
 
 
 344 
 
 
 s. 18 
 
 
 143 
 
 s. 76 
 
 
 1350 
 
 
 s. 22 
 
 
 1372 
 
 s. 80 
 
 
 1386 
 
 
 s. 48 
 
 847, 848 
 
 s. 90 
 
 
 1386 
 
 
 s. 80 
 
 
 1372 
 
 s. 113 
 
 
 1386 
 
 
 s. 104 
 
 
 1273 
 
 s. 130 
 
 
 1283 
 
 
 s. 107 
 
 
 12 
 
 s. 135 
 
 
 1283 
 
 
 s. 109 
 
 
 1095 
 
 B. 141 
 
 
 1386 
 
 
 s. 110 
 
 
 1095 
 
 s. 157 
 
 
 1386 
 
 
 s. Ill 
 
 
 29 
 
 s. 164 
 
 
 1386 
 
 
 s. 120 
 
 
 13 
 
 B. 167 
 
 
 1386 
 
 c. 
 
 89, s. 47 
 
 
 188 
 
 s. 169 
 
 
 1386 
 
 c. 
 
 91, s. 3 
 
 
 1362 
 
 s. 172 
 
 
 1386 
 
 c. 
 
 92, B. 41 
 
 
 188 
 
 s. 174 
 
 
 830 
 
 
 s. 51 
 
 
 47 
 
 «. 182 
 
 
 1386 
 
 
 s. 57 
 
 
 47 
 
 s. 186 
 
 
 1386 
 
 
 s. 58 
 
 
 47 
 
 s. 187 
 
 
 1385 
 
 c. 
 
 93 
 
 
 1362 
 
 s. 188 
 
 
 1386 
 
 c. 
 
 94, s. 3 
 
 
 121 
 
 s. 219 
 
 
 1270 
 
 
 s. 4 
 
 
 121 
 
 s. 223 
 
 
 1337 
 
 39 & 40 v., c 
 
 36, s. 10 
 
 
 924 
 
 =i. 237 
 
 
 1270 
 
 
 s. 36 
 
 
 1109 
 
 =i. 252 
 
 95, 344 
 
 
 s. 37 
 
 
 1109 
 
 B. 264 
 
 
 89 
 
 
 s. 177 
 
 
 131 
 
 s. 267 
 
 
 188 
 
 
 s. 178 
 
 
 341 
 
 s. 280 
 
 
 12 
 
 
 s. 180 
 
 
 131 
 
 s. 297 
 
 
 1283 
 
 
 s. 191 
 
 
 341 
 
 s. 314 
 
 
 1386 
 
 
 s. 227 
 
 
 1109 
 
 s. 326 
 
 
 1386 
 
 
 s. 228 
 
 
 1107 
 
 c. 57, s. 27, Ir. 
 
 
 ■1369 
 
 
 s. 257 
 
 
 93 
 
 c. 59, Ir. 
 
 
 1250 
 
 
 s. 259 
 
 341 
 
 ,1142 
 
 s. 9, Ir. 
 
 
 1286 
 
 
 n. 261 
 
 
 178 
 
 s. 10, Ir. 
 
 
 1286 
 
 
 s. 263 
 
 
 1300 
 
 c. 60, s. 10 -J 
 
 
 1346 
 
 
 s. 272 
 
 
 89 
 
 s. 11 
 
 
 1366 
 
 c. 
 
 45, s. 7 
 
 
 1367 
 
 s. 13 
 
 
 1367 
 
 
 s. 12 
 
 
 847 
 
 s. 14 
 
 
 1272 
 
 0. 
 
 63, Ir. 
 
 
 47 
 
 s. 15 
 
 121 
 
 ,1351 
 
 c. 
 
 80, s. 4 
 
 342 
 
 , 1143 
 
 s. 16 
 
 847, 848 
 
 
 s. 5 
 
 
 989 
 
 3. 22 
 
 1095 
 
 , 1510 
 
 c 
 
 81 
 
 
 44 
 
 £i. 30 
 
 
 188 
 
 40 & 41 v., 
 
 7, s. 13 
 
 1085, 
 
 1118, 
 
 s. 33 
 
 
 344 
 
 
 
 Errata 
 
 s. 39 
 
 1346 
 
 , 1351 
 
 
 s. 18 
 
 
 1355 
 
 c. 63, s. 21 
 
 1143 
 
 ,1371 
 
 
 s. 39 
 
 
 1355 
 
 c. 66 912 
 
 1127, 
 
 1277, 
 1473 
 
 
 s. 92 
 s. 97 
 
 
 440 
 95 
 
 c. 69, s. 97 1 
 
 
 89 
 
 
 0. 8, s. 2 
 
 
 95 
 
 c. 70, s. 14 
 
 
 1370 
 
 
 s. 6 
 
 
 1355 
 
 c. 72 
 
 
 95 
 
 
 .i. 18 
 
 1085, 
 
 1118, 
 
 c. 77, s. 14 
 
 
 1370 
 
 
 
 Errata, 
 
 s. 18 
 
 
 493 
 
 
 s. 23 
 
 
 1355 
 
 o. 22 
 
 32 
 
 , 1558 
 
 
 s. 51 
 
 
 1355 
 
 c. 83, s. 5 
 
 
 831 
 
 
 s. 92 
 
 
 440 
 
 s. 6 
 
 
 831 
 
 c 
 
 . 13, s. 4 
 
 
 89 
 
 s. 7 
 
 
 831 
 
 u 
 
 14, s. 1 
 
 
 1143 
 
 s. 22 
 
 
 831 
 
 C 
 
 18, s. 48 
 
 
 161 
 
cxvm 
 
 TABLE OF STATUTES OITED. 
 
 PAGE 
 
 40&41V., c. 21, s. 6 13 
 
 s. 31 1394, Errata, 
 
 s. 51 1281 
 
 c. 25 1274 
 
 s. 16 1370 
 
 s. 19 1334 
 
 s. 20 1334 
 
 c. 26, s. 6 1343, 1365 
 
 c. 39 ihrata 
 
 c. 41, 3. 4 Errata 
 
 0. 48, s. 4 13 
 
 s. 9 13 
 
 0. 49, s. 4, Ir. 13 
 
 s. 11, Ir. 1110 
 
 s. 43, Ir. 139i, Errata 
 
 s. 57, Ir. 1389 
 
 c. 56, s. 3, Ir. 1075 
 
 s. 22, Ir. 1343 
 
 B. 31, Ir. 1481 
 
 s. 32, Ir. 1481 
 
 o. 57, s. 7, Ir. 1087 
 
 PAGE 
 
 40 & 41 v., c. 57, s. 27, subs. 4, Ir. 4 
 subs. 6, Ir. 4 
 s. 28, subs. 3, 4, 5, 
 
 6, Ir. Errata 
 
 subs. 11, Ir. 4 
 
 s. 34, Ir. 1083 
 
 s. 38, Ir. 1087 
 
 s. 78, Ir. 1370 
 
 c. 59 1364 
 
 s. 1 1263 
 
 s. 4 1531 
 
 s. 6 1531 
 
 s. 17 1481 
 
 s. 18 1263 
 
 ii. 22 Errata 
 
 c. 63, s. 6 1367 
 
 c. 67 929, 1038, 1049, 
 
 1059, 1060, 1061, 
 
 1079, 1112, 1226, 
 
 Errata 
 
TABLE OF RULES AND FOEMS OF SUPREME 
 COURT CITED. 
 
 OEDEES. 
 I 
 
 V 
 VIII 
 
 XVI 
 
 XIX 
 
 XXIII 
 XXVII 
 
 XXVIII 
 
 xxix 
 
 XXX 
 
 UTILES. PAGE 
 
 2 1466 
 
 7 1322 
 
 1 1322 
 
 2 1322 
 
 1 224 
 
 2 224 
 
 3 224 
 
 9 413 
 
 13 224 
 
 14 .... 224, 225 
 
 2 284 
 
 4 .... 284, 616 
 
 8 284 
 
 11 290 
 
 13 1415 
 
 14 .... 285, 352 
 
 15 .... 285, 347 
 
 16 292 
 
 17 . 284, 289, 290, 689 
 
 18 285 
 
 19 285, 352 
 
 20 285, 289 
 
 21 . 284, 285, 288, 337 
 
 22 288 
 
 23 290 
 
 24 .... 413, 1489 
 
 28 128, 335 
 
 1441 
 
 224 
 
 1 225 
 
 2 225 
 
 3 225 
 
 4 226 
 
 B 226 
 
 6 226 
 
 7 226 
 
 8 226 
 
 9 226 
 
 10 227 
 
 1 689 
 
 4 689,691 
 
 5 691 
 
 101 
 
 12 692 
 
 1 693 
 
 2 693 
 
 3 693 
 
 4 693 
 
 OEDEES. 
 
 XXXI 
 
 XXXII 
 
 XXXVI 
 
 XXXVII 
 
 XXXVIII 
 XXXIX 
 XL 
 XLI 
 
 XLII 
 
 XLIV 
 
 LV 
 
 LVI 
 
 LVII 
 
 EULES. PAGE 
 
 1 . . . 457, 460, 1227 
 
 2 459 
 
 3 457 
 
 4 458 
 
 5 459 
 
 6 460 
 
 7 460 
 
 8 .... 460, 1228 
 
 9 460 
 
 10 460 
 
 11 . . 1492, 1499, 1500 
 
 12 .... 1499,1500 
 
 13 1490, 1500, 1502, 1503 
 
 14 .... 399,1489 
 
 16 .... 1490, 1502 
 
 17 1491 
 
 18 .... 1491, 1504 
 
 19 .... 1491, 1504 
 
 20 .... 461, 1505 
 
 21 1505 
 
 22 1605 
 
 23 619 
 
 2 649 
 
 3 650 
 
 4 650 
 
 2 32, 221 
 
 3 32, 221 
 
 5 221 
 
 6 221 
 
 26 32, 221 
 
 27 32 
 
 30 484 
 
 31 1094 
 
 1 .447,453,1171,1172, 
 
 1318, 1533 
 2 1172 
 
 4 . 447, 453, 1316, 1318 
 
 3 Errata 
 
 3 1559 
 
 11 690 
 
 1 1323 
 
 6 .... 1426, 1441 
 
 16 1322 
 
 17 1323 
 
 2 .... 1069, 1507 
 53 
 
 1 399 
 
 1 24 
 
cxx 
 
 TABLE OP RULES AND FORMS. 
 
 OBDEES. EUMS. 
 
 PAGE 
 
 LVIII 1 . 
 
 . . 1558 
 
 5 . 
 
 . 229, 1560 
 
 VI (Costs) 8 . 
 
 . . 1042 
 
 15 . 
 
 . . 1491 
 
 „ 18 . 
 
 . , .413 
 
 FoKMS ; Appendix B. :— page 
 
 7 457 
 
 8 460 
 
 9 1500 
 
 10 1490 
 
 11 1490, 1502 
 
 12 650 
 
 TABLE OF COUNTY COUET EULES AND FOEMS 
 
 CITED. 
 
 YEAR. ORDERS. 
 
 ETJLES. 
 
 
 
 PAGE 
 
 YEAR. 
 
 ORDERS. RULES. 
 
 
 
 PAGE 
 
 1875 VIII 
 
 9 . . . . 1092 
 
 1875 
 
 XIV 8 . . . . 456 
 
 SI J) 
 
 26 
 
 
 
 . 1092 
 
 91 
 
 9 
 
 
 
 . 456 
 
 SIII 
 
 1 
 
 
 
 . 1507 
 
 J} 
 
 10 
 
 
 
 . 459 
 
 tt 3> 
 
 2 
 
 
 
 . 1508 
 
 )f 
 
 XVII 
 
 
 
 . 241 
 
 93 i1 
 
 3 
 
 
 
 . 1508 
 
 1876 
 
 XVII 21 
 
 
 
 . 241 
 
 i> a 
 
 4 
 
 
 
 . 1509 
 
 
 rORMS. 
 
 
 
 
 Jl 7> 
 
 5 
 
 
 
 , 1510 
 
 1875 
 
 20 
 
 
 
 . 1092 
 
 J> 3> 
 
 6 
 
 
 
 . 467 
 
 if 
 
 21 
 
 
 
 . 1092 
 
 3> )» 
 
 7 
 
 
 
 . 468 
 
 J) 
 
 54 
 
 
 
 . 1507 
 
 >> J» 
 
 8 
 
 
 
 . 468 
 
 >» 
 
 55 
 
 
 
 . 1507 
 
 J» >» 
 
 9 
 
 
 
 . 656 
 
 )) 
 
 66 
 
 
 
 . 1508 
 
 XIV 
 
 1 
 
 
 
 . 1092 
 
 )» 
 
 57 
 
 
 
 . 467 
 
 3» It 
 
 2 
 
 
 
 . 1092 
 
 1876 
 
 285 
 
 
 
 . 467 
 
 St S» 
 
 3 
 
 
 
 . 1172 
 
 ,, 
 
 286 . 
 
 
 
 . 1509 
 
 >l )> 
 
 4 
 
 
 
 . 1093 
 
 It 
 
 287 
 
 
 
 . 1509 
 
 it tt 
 
 5 
 
 
 
 . 1557 
 
 ;] 
 
 288 
 
 
 
 . 655 
 
 tt tt 
 
 6 
 
 
 
 . 1172 
 
 It 
 
 289. 
 
 
 
 . 1092 
 
 tt tt 
 
 7 
 
 
 
 456, 468 
 
 
 
 
 
 
ERRATA. 
 
 FADE 
 
 9. 1. 22. after "Scotland," add "The "Wafer Great Seal, and the Wafer Privy 
 Seal, framed under the Crown Office Act, 1877 ; " and append a 
 note, refenmg to " 40 & 41 V. u. 41, § 4." 
 
 11. n. 7. after "27 & 28 V. c. 54, §§ 9, 50, Ir.," add "Now Repealed by 32 & 
 33 V. c. 42, § 21, Ir." 
 
 29. L 11. after "1873," add "to those made either by Order in Council, or by 
 the Committee of Council, under the Crown Office Act, 1877," and 
 append a note referring to " 40 & 41 T. c. 41, §§ 3, 5." 
 
 49. 1. 2. after " escape," add note, " Such an action is no longer maintainable, 
 
 40 & 41 V. c. 21, § 31 ; 40 & 41 Y. c. 49, § 43, Ir." 
 
 50. n. 4. after "Jackson v. Metrop. Ey. Co.," add "reversed in Dom. Proc. 
 
 26 "W. K., n. 10, p. 175. Since this last decision it would seem to 
 be more difficult than ever to define the respective functions of the 
 judge and the jury, when a question of negligence is involved in the 
 trial. Read the recent cases attentively, and try to make sense of 
 them." 
 
 53. 1. 4. after ' ' the costs shall follow the event, " add note, ' ' "Where a nonsuit was 
 set aside and plaintiff obtained a verdict on second trial, he was held 
 entitled to the costs of the first trial, and of the rule for a new trial. 
 Green v. "Wright, L. R., 2 C. P. D. 354 ; 46 L. J., C. P. 427, perCt. 
 ofApp.,S. C." 
 
 53. 1. 5. after " gooicaMse shovm," add note referring to "Gen. Steam 'Shy. Co. 
 V. Lond. & Ed. Ship. Co., L. R., 2 Ex. D. 467 ; 47 L. J., Ex. 77, S. C." 
 
 53. 1. 6. after "or the Court," add note referring to "Gen. Steam Nav. Co. v. 
 Lond. & Ed. Ship. Co., L. E., 2 Ex. D. 467; 47 L. J., Ex. 77, S. C." 
 
 53. n. 1. add " But see Garnet v. Bradley, L. R., 2 Ex. D. 349 ; 46 L. J. Ex. 545, 
 
 S. C.,in which the Court of App. (byBramwell and Brett, L.JJ., and 
 Kelly, C. B., diss. ) overruled Parsons d. Tinling, and held, that when 
 the rule declared that 'costs should follow the event,' it did not 
 intend what it said, but it simply meant that the costs would follow 
 as regulated by former statutes. This reasoning is not very satis- 
 factory, and the question can scarcely yet be considered as finally 
 settled. See 21 J. 1, c. 16, § 6." 
 
 54. I. 18. after "competency of a testator in a wiU cause," add "and his free- 
 
 dom from undue influence," and then append a note, referring to 
 "Purdon v. Ld. Longford, I. R., 11 C. L. 267." 
 57. n. 1. after "Bowes v. Shand, add L. R., 2 App. Cas. 455 ; S. C. 46 L. J., 
 Q. B. 561 ; " and also add, " See, too, Quinn v. Shields, I. E., 11 C. 
 L. 254, where held, that the meaning of the word "moss," as used 
 in a fee-farm grant, was a question, not for the jury, but for the 
 judge." 
 
cxxu 
 
 EERATA. 
 
 PAGE 
 
 
 
 95. 
 
 11. 
 
 3. 
 
 138. 
 
 n. 
 
 3. 
 
 139. 
 
 n. 
 
 1. 
 
 140. 
 
 n. 
 
 3. 
 
 140. 
 
 n. 
 
 5. 
 
 140. 
 
 n. 
 
 9. 
 
 165. 
 
 n. 
 
 7. 
 
 166. 
 
 n. 
 
 6. 
 
 168. 
 
 n. 
 
 2. 
 
 184. 
 
 n. 
 
 5. 
 
 192. 
 
 n. 
 
 2. 
 
 194. 
 
 n. 
 
 7. 
 
 195. 
 
 n. 
 
 3. 
 
 206. 
 
 n. 
 
 5. 
 
 221. 
 
 n. 
 
 3. 
 
 D. 572 ; 46 L. J., C. 
 R., 2 Q. B. D. 433, 
 46 L. J. 
 
 224. 1. 23. 
 
 224. n. 1. 
 
 225. 1. 12. 
 
 225. 1. 20. 
 
 226. K. 5. 
 
 284. n. 6. 
 
 285. 1. 11. 
 
 289. n. 3 
 
 add "continued by 40 & 41 V. o. 67, till 31 Dec. 1878." 
 
 add "Birmingham, May. of «. Allen, 46 L. J., Ch. 673, per Ct. of 
 
 App. ; L. B., 6 Ch. D. 284, S. C." 
 add "See Siddons v. Short, L. E., 2 C. P. 
 
 P. 795, S. C." 
 after "Lascelles v. Ld. Onslow," add "L. 
 
 450, S. C." 
 add " Att.-Gen. v. TomKne, L. E., 5Ch. D. 750, pe Fry, J. 
 
 Ch. 654, S. C." 
 after " 5 & 6 T. c. 39, § 1," add " 40 & 41 V. c. 39." 
 add " Slator v. Nolan, I. R. 11 Eq. 367." 
 add "See, also, O'Eorke v. Bolingbroke, L. E., 2 App. Cas. 814, per 
 
 Dom. Proc. (Ir.) See, too. Gen., Ch. xxv., vv. 29—34." 
 add " 40 & 41 V. c. 57, § 28, subs. 3, Ir." 
 add " 40 & 41 V. c. 57, § 28, subs. 5, Ir." 
 
 add " Ex p. Tennant, re Howard, per Ct. of App., L. R., 6 Ch. D. 303. 
 after "Spice v. Bacon," add "46 L. J., Ex. 713; L. E., 2 Ex. 
 
 D. 463, S. C." 
 after "Spice v. Bacon," add L. K., 2 Ex. D. 463 ; 46 L. J., Ex. 713, 
 
 S. C." 
 add "Prudential As3. Co. v. Edmonds, L. R., 2 App. Cas. 487, per 
 
 Dom. Proc." 
 For "Lugg f. Silber," in 1. 4, read "Sugg v. Silber;" also after 
 " Bordier v. Burrell," add " S. C. 46 L. J., Ch. 615," and then add 
 at end of note, "Leigh v. Brooks, L. R., 5 Ch. D. 592, per Ct. of 
 App. ; and Clements v. Norris, W. N. 8 Dec. 1877, p. 248, per 
 HaU, V.-C. ; 26 W. R. 94, S. C. But see PiUey v. BayUs, 46 L. J., 
 Ch. 847, per Malins, V.-C. ; L. R. 5 Ch. D. 241, S. C." 
 after "mistake," add "but such mistake maybe one of law as well 
 as of fact," and then append as a note, " Duckett v. Gover, L. R., 
 6 Ch. D. 82, per Jessel, M. R. ; 46 L. J., Ch. 407, S. C." 
 add "See Child v. Stenning, 46 L. J., Ch. 523 ; L. R., 5 Ch. D. 695, 
 
 S. C. ; Booth i;. Briscoe, L. R., 2 Q. B. D. 496." 
 after " amendment of Pleading," aiiti note, "As to the amendment of 
 pleadings in the Consistory Court of London, see Reg. Gen. of 1877, 
 relating to that Court, Ord. iii. " 
 after " embarrass," add note referring to Heap v. Harris, L. R., 2 Q. B. 
 
 D. 630 ; 46 L. J., Q. B. 761, S. C." 
 at end add reference to "Durling v. Lawrence, 46 L. J., Ch. 808, per 
 
 Jessel, M. R." 
 add "See Heap v. Mams, L. R,, 2 Q. B. D. 630; 46 L. J., Q. B. 761, 
 
 S. C." 
 after " Limitations, "aiit^ this note, "Notwithstanding these precise words 
 a defendant, in an action for the recovery of real estate, may stiU 
 raise the defence of the Statute of Limitations by demurrer ; and that 
 too, although such demurrer, — after specifying some particular ground 
 of defence,— should, in accordance with Ord. XXVIII, R. 2, merely 
 refer generally to ' other grounds sufficient to sustain the demurrer. ' 
 Dawkins v. Ld. Penrhyn, L. R., 6 C. D. 318, per Ct. of App. The 
 judgment of Jessel, M. E., in this case is, perhaps, more remarkable 
 for vigour and subtlety than for sound and consistent reasoning." 
 , add " Byrd v. Nunn, L. R., 5 Ch. D. 781, per Fry, J. ; S. C. Aff. by 
 Ct. of App. 47 L. J., Ch. 1." 
 
PAGE 
 
 
 325. n. 
 
 7. 
 
 352. n. 
 
 1. 
 
 ERBATA. CXXIU 
 
 add "Long I!. KeigMey, I. E., 11 C. L. 221." 
 
 add "See also Eules of Sup. Ct, Order XXXVIII., r. 3, whioli pro- 
 vides, that affidavits in reply, ' shall be confined to matters strictly 
 in, reply. ' This rule, however, seems to have been cui'iously set at 
 nought by Hall, V.-C, in Peacock v. Harper, 26 W. E. 109. 
 Sed.qu." 
 
 414. n. 4. after " Dunne v. English," add " See Meyrick v. James, 46 L. J. 
 Ch. 579." 
 
 439. § 496. dele this section, as § 449 of 17 & 18 V. o. 104, therein censured, is now 
 repealed by 39 & 40 V. c. 80, § 45, and Sched. 
 
 447. n. I. after " In re West of Canada, &c.," add "46 L. J., Ch. 683." 
 
 448. n. 2. after " Brydges i). Fisher," add "S, P., decided by Fry, J., in Stewart 
 
 V. Gladstone, No. 51, W. N. of 22nd Dec. 1877, p. 270." 
 
 449. n. 2. add "See In re Imper. Land Co. of Marseilles, "W. N. 8 Dec. 1877, 
 
 p. 244, where the Ct. of App. reversed a decision of MaUns, V.-C, 
 who had refused to issue a commission to examine witnesses in 
 France." 
 459. 1. 28. after "struck out," add note, " See Eade v. Jacob, 47 L. J., Ex. 74, 
 
 per Ct. of App." 
 462. n. 3. add " Bp. of Cork v. Porter, I. E., 11 C. L. 94. See also Eade v. 
 Jacob, 47 L. J., Ex. 74, per Ct. of App." 
 add " Eade v. Jacob, 47 L. J., Ex. 74, per Ct. of App." 
 after " Sly v. Sly," add " S. C, 46 L. J., P. D. & A. 63." 
 after " Sly v. Sly," add " S. C, 46 L. J., P. D. & A. 63." 
 add "Peacock v. Harper, 26 W. E., 109, in Ch. D., per Hall, V.-C." 
 at eiid add " It has just been decided, that, in an action for a nuisance, 
 raising a question of title, a defendant cannot plead payment into 
 Court, and deny the plaintiff's right of action in respect of the same 
 part of the statement of claim ; and any such statement of defence 
 will be amended as ' embarrassing ' under Ord. XXVII. r. 1. Spurr 
 V. Hall, L. E., 2 Q. B. D. 615 ; 46 L. J., Q. B. 693, S. C." 
 
 709. n. 4. add " S. C. affid. in Dom. Proc, L. E., 2 App. Cas. 439 ; 46 L. J., 
 
 C. P. 583, S. C." 
 
 710. n. 1. add " Clark v. Adie, L. E., 2 App. Cas. 423 ; 46 L. J., Ch. 598, S. C, 
 
 per Dom. Proc." 
 after " Gatty v. Fry," add " 46.L. J., Ex. 605, S. C." 
 add " L. E., 2 Q. B. D. 611, S.'c." 
 for "Clergy," read "Church." 
 
 after " EoUs v. Pearce," add " 46 L. J., Ch. 791, S. C." 
 add "40 & 41 V. c. 57, § 28, subs. 6, Ir." 
 after "Handi;. Hall," add " S. C, 46 L. J., Ex. 603." 
 add, " Oastler v. Henderson, 46 L, J., Q. B. 607,per Ct. of App. ; L. E., 
 
 2 Q. B. D. 575, S. C." 
 
 846. n. 4. add " A trustee, after disclaimer, cannot remove fixlures. In re Lavies, 
 
 ex p. Stephens, 47 L. J., Bk. 22, per Ct. of App." 
 
 847. n. 7. add " 40 & 41 V. c. 57, § 28, subs. 4, Ir." 
 add "But see Ashworth v. Outram, L. E., 5 Ch. D. 923 ; 46 L. J. 
 
 Ch. 687, per Ct. of App." 
 add " Kronheim v. Johnson, L. E., 7 Ch. D. 60, per Fry, J." 
 856. n. 5. add " Williams v. Jordan, 46 L. J., Ch. 681, per Jessel, M. E. ; L. E., 
 
 6 C. D. 517, S. C." 
 856. n. 6. after " Eossiter v. Miller," add " S. C, in Ct. of App. 46 L. J., 
 
 Ch. 737." 
 
 462. 
 
 n. 
 
 581. 
 
 n. 
 
 582. 
 
 n. 
 
 665. 
 
 n. 
 
 699. 
 
 n. 
 
 712. 
 
 n. 
 
 3. 
 
 810. 
 
 n. 
 
 1. 
 
 811. 
 
 1. 
 
 13. 
 
 819. 
 
 n. 
 
 3. 
 
 831. 
 
 n. 
 
 5. 
 
 834. 
 
 u. 
 
 3. 
 
 845. 
 
 n. 
 
 1. 
 
 n. 7, 
 
 n. 2 
 
 n. 1 
 
 n. 5. 
 
PAGE 
 
 
 
 866. 
 
 n. 
 
 3. 
 
 869. 
 
 n. 
 
 6. 
 
 871. 
 
 n. 
 
 3. 
 
 888. 
 
 n. 
 
 6. 
 
 893. 
 
 n. 
 
 9. 
 
 0S.X1V EKEATA. 
 
 after "Ungley «. Ungley," add "S. C, 46 L. J. Ch. 854, per Ct. of App.'' 
 
 add "Eonayne v. Slierrard, I. B., 11 C. L. 146." 
 
 add " Again, stock to which the Colonial Stock Act, 1877, applies, is 
 
 personal estate, 40 & 41 V. c. 59, § 22." 
 add " In re Jones, 46 L. J., P. D. & A. 80." 
 
 add " A verhal authority given by a Hindu testator to another person 
 to destroy his wUl will revoke the instrument, even though it be not 
 destroyed; Maharajah Pertab N"arain Singh v. Maharanee Subhao 
 Kooer, L. E., 4 Ind. App. 228." 
 896. n, 9. add " But see In re Hanis, Cheese v. Lovejoy, 46 L. J., P. J). & A., 66, 
 per Sir E. Phillimore ; L. E., 2 P. D. 251, S. C. nom. Cheese v. Love- 
 joy, per Ct. of App." 
 898. n. 2. add "In re Harris, Cheese v. Lovejoy, 46 L. J., P. D. & A. 66, per Sir 
 R. Phillimore ; L. E., 2 P. D. 251, S. C. nom. Cheese v. Lovejoy, 
 per Ct. of App." 
 930. n. 5. add "Walsh v. Wally, I. E., 11 C. L. 337." 
 
 943. 11. 1. add "See Bathurst v. Errington, L. E., 2 App. Cas. 698, per Dom. 
 Proc." 
 
 986. n. 1. ffi/ter " "Ward !;. Hobbs, " ad(^ " This decision has been reversed in the 
 
 Ct. of App., 47 L. J., Q. B. 90, but the reasoning of the Lds. Js. 
 appears to be very unsatisfactory. Therefore qu." 
 
 987. n. 5. after "Conway v. Belfast, &c.," add "S. C. aff. on App., I. E., 11 C. 
 
 Ii. 345." 
 add "Skerritt v. Scallan, I. E., 11 C. L. 389." 
 add "Dooleyu. Mahou, I. R., 11 Eq. 299." 
 add "Travers v. Blundell, L. E., 6 C. D. 436, per Ct. of App." 
 add "Edgeworth v. Johnston, I. E., 11 Eq. 326 ; Curtis v. Mackenzie 
 
 W. N., No. 45 of 1877, Ch. D. 213, per Jessel, M. E." 
 1083. n. 4. add " See Reg. Gen. of 1877, for Consist. Ct. of Lond., Ord. IX., r. 4, 
 
 and Forms cited L. E., 2 P. D. 379, 382." 
 1083. n. 5. add "See same Reg. Gen., Ord. XL, r. 1, cited L. R., 2 P. D. 380." 
 1090. 1. 13. after "reasonable sum," add note, "The witness so summoned is not 
 
 entitled to the costs of employing a solicitor or counsel, Ex p, 
 
 Waddell, In re Lutscher, L. E., 6 C. D. 328, per Ct. of App." 
 1096. n. 1. add " This Act is now repealed by 18 & 19 V. c. 122, § 109, and the 
 
 office of of&cial referees of Metropolitan Buildings is abolished." 
 1121. n. 7. For 34 & 35 T. c. 9, § 13 ; id. c. 10, § 17," read " 40 & 41 V. c. 7, 
 
 § 13 ; id. ^. 8, § 18." 
 1172. n. 1. add " "Where affidavits had been used on an interlocutory application 
 
 the Court would not allow them, in opposition to the defendant's 
 
 wishes, to be read at the hearing, and to be supplemented by the 
 
 oral evidence of the deponents and by their cross-examination. 
 
 Blackbui'n Union v. Brooks, 26 W. E. 57, in Ch. D. per Fry, J. ; 
 
 L. E.,7Ch. D. 68, S. C." 
 1172. n. 3. add "and this right to cross-examine the deponent wiU continue, 
 
 though the affidavit be subsequently withdrawn by the pai-ty who has 
 
 filed it. Keogh v. Leonard, I. R., 11 Eq. 365." 
 
 1172. n. 4. after " 27 & 28 Y. o. 54, § 37, Ir.," add "Now repealed by 32 & 33 V. 
 
 c. 42, § 21, Ir." Also add, at eiid, " See, too, Eeg. Gen. of 1877 for 
 Consist. Ct. of Lond., Ord. IX., r. 1, cited L. R. 2 P. D. 378." 
 
 1173. n. 6. At end add "See also Taylor v. Slirubb, Times, 7 Dec. 1877, where 
 
 this question was much discussed in C. P. D. of High Court, but left 
 undecided." 
 
 988. n. 
 
 4. 
 
 1014. n. 
 
 2. 
 
 1018. n. 
 
 2. 
 
 1024. n. 
 
 2. 
 
ERRATA. CXXV 
 
 PAGE 
 
 1223. u. 10. o/fcr "Ld. TJxbridge <;. Staveland," add " Bp. of Cork v. Porter, 
 
 I. R., 11 C. L. 94." 
 
 1224. n. 3. add " Bp. of Cork v. Porter, I. E., 11 C. L. 94." 
 
 1229. n. 6. add "But a mere witness, summoned under § 96 of the Act, is not 
 
 bound to answer criminative questions, In re Firth, Ex p. Schofield, 
 
 per Ct. of App,, 46 L. J., Bk. 112; L. E., 6 C. D. 230, S. C, nom. 
 
 Ex p. Schofield, In re Firth." 
 
 1237. n. 1. after " Davies v. Otty," add " S. P., Elias v. Griffith, 46 L. J., Ch. 806, 
 
 per Hall, V.-C." 
 1278. n. 4. add " This Act is now repealed by 18 & 19 V. c. 122, § 109, and the 
 offices of official referees and of registrar of Metropolitan Buildings 
 are abolished." 
 1322. n. 5. add " 13 Cox, 694, S. C." 
 
 1424. n. 6, of p. 1423. Fei- "§ 296 of 17 & 18 V. c. 104 ; for by § 298 of that 
 Act," read " the regulations for preventing collision made under the 
 Merchant Shipping Acts 1854 to 1873 ; for, by § 17 of 36 & 37 V. 
 c. 85." 
 1489. 1. 4. (//&)• "each description of document," atZdwofc, "But see West of Eng. 
 Bk. V. Canton Ins. Co., L. E., 2 Ex. D. 472, as to the discovei-y of 
 documents in cases relating to Marine Insurance." 
 1500. n. 1,0.3. add "A statement by the Secretary of the Board of Trade that he 
 has ' divers official documents in his control, but that he declines to 
 give any further information with regard to them on the groimd of 
 public policy,' is not a sufficient compliance with the rule. Kain v. 
 Farrer, decided by C. P. D. on 8 Dec. 1877." 
 1506. n. 1. fi;(?d "In re Leigh's Estate, Eowcliffe 'U.Leigh, L. E., 6 CD, 256, per Ct, 
 of App." 
 
A 
 
 PEACTICAL TEEATISE 
 
 ON THE 
 
 LAW OF EVIDENCE. 
 
 PAET I. 
 
 NATURE AND PEINCIPLES OF EVIDENCE. 
 
 CHAPTER I. 
 
 PEELIMINAEY OBSERVATIONS. 
 
 § 1.^ The word Evidence, considered in relation to Law, § l 
 includes all the legal means, exclusive of mere argument, which 
 tend to prove or disprove any matter of fact, the truth of which 
 is submitted to judicial investigation. This term and the word 
 •proof are often used as synonymes ; but the latter is applied by 
 accurate logicians, rather to the effect of evidence, than to evidence 
 itself.^ None but mathematical truth is susceptible of that high 
 degree of evidence called demonstration, which excludes all pos- 
 sibility of error. In the investigation of matters of fact such 
 evidence cannot be obtained ; and the most that can be said is, 
 that there is no reasonable doubt concerning them.^ The true 
 question, therefore, in trials of fact is not, whether it is possible 
 
 ^ Gr. Ev. § 1, in great part. 
 
 2 See Wills Cii. Ev. 2 ; Whately's Log. B. ii. c. iii. § 1 ; N. York Civ. 
 Code, § 1660. 
 
 2 See Gamb. Guide, 121. Even of mathematical truths this writer justly 
 remarks, that, though capable of demonstration, they are admitted by most 
 men solely on the moral evidence of general notoriety. Id. 196. See N. York 
 Civ. Code, § 1662. 
 
 B 
 
2 PEELIMINAEY OBSERVATIONS. [PAET I. 
 
 that the testimony may be false, but whether there is suflS.cient 
 probabiUty of its truth ; that is, whether the facts are proved by 
 competent and satisfactory evidence. 
 
 § 2.^ By competent evidence is meant that which the law § 2 
 requires, as the lit and appropriate proof in the particular case, 
 such as the production of a writing, where its contents are the 
 subject of inquiry. By satisfactory evidence, which is sometimes 
 called sufficient evidence, is intended that amount of proof which 
 ordinarily satisfies an unprejudiced mind beyond reasonable doubt. 
 The circumstances which will amount to this degree of proof can 
 never be previously defined ; the only legal test of which they are 
 susceptible is their sufficiency to satisfy the mind and conscience 
 of an ordinary man ; and so to convince him, that he would ven- 
 ture to act upon that conviction in matters of important personal 
 interest.^ Questions respecting the competency or admissibility 
 of evidence are entirely distinct from those which respect its suffi- 
 ciency or effect ; the former being exclusively within the province 
 of the court ; the latter belonging exclusively to the jury.* 
 
 § 3.* This branch of the law may be considered under three § 3 
 general heads, namely. First, The Nature and Principles oi 
 Evidence ; — Secondly, The Object of Evidence, and the Eules 
 which govern its production ;— And, Thirdly, The Means of Proof, 
 or the Instruments by which facts are established. This order 
 will be followed in the present Treatise; but before proceeding 
 further, it will be convenient, first, to consider what matters the 
 courts will of themselves notice without proof, and next, to offer 
 a few observations respecting the functions of the judge, as 
 distinguished from those of the jury. 
 
 ' Gr. Ev. § 2, almost verbatim. ^ 1 St Ev 578 
 
 ' 1 Ph. Ev. 2 ; Carpenters' Co. v. Haywaid, 1 Doug. 375, per BuUer J 
 * Gr. Ev. § 3, in great part. ' 
 
CHAP. II.] MATTERS JUDICIALLY NOTICED. 
 
 CHAPTER II. 
 
 MATTEES JUDICIALLY NOTICED, WITHOUT PEOOP.^ 
 
 § 4.^ All civilised nations, being alike members of tbe great § 4 
 family of sovereignties, may well be supposed to recognise eacb 
 other's existence, and general public and external relations. Every 
 sovereign therefore recognises, and, of course, the public tribunals 
 and functionaries of every nation notice, the existence and titles 
 of all the other sovereign powers in the civilised world.^ If, how- 
 ever, upon a civil war in any country, one part of the nation 
 should separate from the other, and establish for itself an inde- 
 pendent government, the newly-formed nation cannot be recognised 
 as such by the judicial tribunals of other nations, until it has been 
 acknowledged by the sovereign power under which those tribunals 
 are constituted.* Still the judges are bound, ex officio, to laiow 
 whether or not the government has recognised such nation as an 
 independent state.' 
 
 ' See N. York Civ. Code, §§ 1705, 1V06. 
 
 "■' Gr. Ev. § 4, in great part. 
 
 ' United States of America v. Wagner, 2 Law Eep. Ch. Ap. 585, per Ld. 
 Chelmsford, Ch. ; 36 L. J., Ch. 628, S. C. From Yrisarri'i). Clement, 11 
 Moore, 314, 315 ; 2 C. & P. 225, S. C, it seems that the existence of States 
 unacknowledged by the government must be proved by evidence, showing 
 that they are associations formed for mutual defence, siipporting their own 
 independence, making laws, and having courts of justice. The two Eeports 
 somewhat differ, but the latter lays down the soundest law. This case is also 
 reported in 3 Bing. 432. 
 
 " City of Berne v. Bk. of Eng., 9 Ves. 347. 
 
 ' Taylor v. Barclay, 2 Sim. 213. In that case it was falsely alleged in the 
 bill, with the view of preventing a demvtrrer, that Guatemala, a revolted 
 colony of Spain, had been recognised by Great Britain as an independent 
 state ; but the V.-Ch. took judicial notice that the allegation was false. See, 
 however. Bolder v. Bk. of Eng., 10 Ves. 354, where Ld. Eldon observed, " I 
 cannot affect to be ignorant of the fact, that the revolutions in Switzerland 
 have not been recognised by the government of this country ; but, as a judge, 
 I cannot take notice of that." It may well be doubted whether this last case 
 is law. 
 
 B 2 
 
4 LAWS JUDICIALLY NOTICED. [PAET I. 
 
 § 5. In like manner the jndgos will recognise, without proof, § 5 
 the eommoni and statute law,^ and all legal claims, demands, 
 estates, titles, rights, duties, obligations, and liabilities existing by 
 the common law, or by any custom, or created by any statute ; ^ 
 the rules of equity, and all equitable estates, titles, rights, duties 
 and liabilities;* the cardinal doctrine that, whenever the rules of 
 equity and of the common law differ, those of equity must prevail ; ^ 
 the law of nations ; the law and custom of parliament, and the 
 privileges and course of proceedings of each branch of the legisla- 
 ture ; ^ the prerogatives of the Crown,^ and the privileges of the 
 royal palaces ; ^ the maritime law ; ^ the ecclesiastical law ; ^° the 
 articles of war, whether in the naval,^^ the marine, or the land 
 
 ' Hein. ad Pand., L. xxii. t. iii. § 119. 
 
 2 R. V. Sutton, 4 M. & S. 542 ; 13 & 14 V., c. 21, § 7. As to private Acts 
 of Pari., see 8 & 9 V., c. 113, § 3, cited post, § 7. 
 
 3 36 & 37 v., c. 66, § 24, suIds. 6 ; 40 & 41 V., c. 57, § 27, subs. 6, Ir. 
 
 ■• 36 & 37 v., 0. 66, § 24, subs. 4, enacts, that the High Court of Justice and 
 the Court of Appeal " respectif ely, and every judge thereof, shall recognise 
 and take notice of all equitable estates, titles, and rights, and aU equitable 
 duties and liabilities appearnig incidentally in the course of any cause or 
 matter, in the same manner in which the Court of Chancery would have 
 recognised and taken notice of the same in any suit or proceeding duly instituted 
 therein before the passing of this Act." See, also, 40 & 41 V., c. 57, § 27, subs. 
 
 4, Ir. 
 
 •i 36 & 37 v., c. 66, § 25, subs. 11, enacts, that generally in all matters, "in 
 which there is any conflict or variance between the Rules of Equity and the 
 Rules of the Common Law with reference to the same matter, the Rules of 
 Equity shall prevail." See Bustros v. White, 45 L. J., Q. B. 642, per Ct. of 
 App. ; L. R., 1 Q. B. D. 423, S. C. See, also, 40 & 41 V., c. 57, § 28, subs. 11, Ir. 
 
 « Lake v. King, 1 Wms. Saund. 131 a; Stockdale v. Hansard, 7 C. & P. 731 ; 
 
 9 A. & E. 1, and 2 P. & D. 1, S. C ; Wason v. Walter, 8 B. & S. 671 ; 38 L. .T.^ 
 Q. B. 34 ; 4 Law Rep., Q. B. 73, S. C. ; Cassidy v. Steuart, 2 M. & Gr. 437'| 
 Case of the Sheif. of MiddLx., 11 A. & E. 273 ; Sims v. Marryat, 17 Q. B. 292.' 
 
 ' R. V. Elderton, 2 Ld. Ray. 980. 
 
 " Id. Reported, also, in 3 Salk. 91, 284 ; 6 Mod. 73 ; and Holt 590 • 
 Winter v. Miles, 10 East, 578 ; 1 Camp. 475, S. C. ; Att.-Gen. v. Donaldson' 
 
 10 M. & W. 117. Hampton Court has ceased to have privileges as a royal 
 palace, Att.-Gen. v. Dakin, 36 L. J., Ex. 167 ; and 2 Law Rep., Ex 290 • 
 
 5. C, per Ex. Ch., 3 Law Rep. Ex. 288 ; and 37 L. J., Ex. 150 ; S. C in Dom' 
 Proc. 4 Law Rep., H. L. 338 ; and 39 L. J., Ex. 113 ; R. v. Ponsonby, 3 Q. B. 
 ^'^; ^ ^ „ . , " Chandler v. Grieves, 2 H. Bl. 606 n. 
 
 1 Roll. Abr. 526 ; 6 Vin. Abr. 496 ; Sims v. Marryat, 17 Q. B 292 per 
 Ld. Campbell. „ 29 ^ 3q ^ ' ^ 
 
CHAP. II.] CUSTOMS JUDICIALLY NOTICED. 5 
 
 service,^ including those made for the government of the forces in 
 India,^ but not the book called " Rules and Eegulations for the 
 Government of the Army; " * royal proclamations, such being acts 
 of State ; * the general practice of conveyancers ; ^ the custom of 
 merchants,® at least where such custom has been settled by judicial 
 determinations,'^ — such, for example, as the lien which a vendor has 
 
 ' By what is usually § 1 of the Annual Mutiny Act, the Queen is em- 
 powered "to make articles of war for the better government of H.M.'s army, 
 which articles shall he judicially taken notice of by all judges, and in all 
 courts whatsoever ; " and by the corresponding sect, of the Annual Marine 
 Mutiny Act, the Ld. High Admiral, or the comniissioners for executuig his 
 office, " may make, ordain, alter, and establish rules and articles of war imder 
 the hand of the said Ld. High Admiral, or under the hands of any two or 
 more of the said commissioners, for the better government of H.M.'s royal 
 marine forces, and for the punishment of mutiny,'' &c. ; " which rules and 
 articles shall be judicially taken notice of by all judges, and in aU courts 
 whatsoever." See also Bradley v. Arthur, 4 B. & C. 304. 
 
 2 12 & 13 v., c. 43, § 1 ; 21 & 22 V., c. 106, § 56. 
 
 ' Bradley v. Arthur, 4 B. & 0. 304, per Abbott, C. J. 
 
 ' There exists some doubt upon this poiat. In Dupays v. Shepherd, 12 
 Mod. 216, Ld. Holt held that a proclamation in print was of as public a 
 nature as a public act of parliament ; but in Van Omeron v. Dowick, 2 Camp. 
 44, Ld. Ellenborough refused to take notice of a proclamation, on the ground 
 that the Gazette containing it was not produced. The marginal note to this 
 last case is calculated to mislead, as it asserts broadly, that '' a judge at Nisi 
 Prius will not take judicial notice of the king's proclamations." The case 
 does not go this length, which is tantamount to sayiag that royal proclama- 
 tions must be laid before the jury, but simply decides that, when a judge's 
 memory is at fault, some document must be at hand to establish the fact which 
 he is called upon to notice. Copies of royal proclamations, if purportiag to 
 be printed by the Queen's printer, axe rendered admissible by 8 & 9 V., c. 113, 
 § 3 ; see post, § 7. They may be proved also in a variety of other ways. See 
 31 & 32 v., c. 37, § 2, cited post, § 1527. 
 
 * WUloughby v. WUloughby, 1 T. E. 772, per Ld. Hardwicke ; Doe v. 
 HUder, 2 B. & Al. 793 ; Doe v. Plowman, 2 B. & Ad. 577 ; Rowe v. Grenfel, 
 Ey. & M. 398, per Ld. Tenterden. Ld. St. Leonards observes, in 3 V. & P. 
 28, " It matters very little what is the opinion of any individual convey- 
 ancer; but the opinion of the conveyancers, as a class, is of the deepest 
 importance to every individual of property in the state. Their settled rule of 
 practice has, accordingly, in several instances been adopted as the law of the 
 land, not out of respect for them, but out of tenderness to the nimierous pur- 
 chasers who have bought estates under their advice." See also Howard v. 
 Ducane, 1 Turn. & E. 86, per Ld. Eldon. 
 
 " Eriskine v. Murray, 2 Ld. Eay. 1542 ; Soper v. Dibble, 1 Ld. Eay. 175 ; 
 Carter v. Downish, Garth. 83 ; WUliams v. Wilhams, id. 269. 
 
 ' Barnett v. Brandao, 6 M. & Gr. 630. In that case, where judicial notice 
 
6 CUSTOMS JUDICIALLY NOTICED. [PAET I. 
 
 on goods remaining in his possession for unpaid purchase-money/ 
 or the general lien of bankers and factors on the securities of their 
 customers in their custody,^ or the usage among money dealers of 
 treating scrip certificates payable to bearer, whether of a foreign 
 Government or of a company, as negotiable instruments transferable 
 on delivery ; ^ the customs which regulate the special descent of 
 
 was taken by tlie Ct. of Ex. Ch. of tlie general lien of bankers on tlie securities 
 of their customers in their custody, Ld. Denman, in pronouncing the judg- 
 ment of the court, said, " The law-merchant forms a branch of the law of 
 England ; and those customs, which have been universally and notoriously 
 prevalent amongst merchants, and have been found by experience to be of 
 public use, have been adopted as a part of it, upon a principle of convenience, 
 and for the benefit of trade and commerce : and when so adopted, it is un- 
 necessary to pkad and prove them. They are binding on all without proof. 
 Accordingly we find that usages affecting bills of exchange and bills of 
 lading, are taken notice of judicially." — P. 665. His lordship then states 
 that, " in the case of a factor, the right to a general lien '" is, " in modem 
 practice, treated as a matter of settled law, and no proof is ever required that 
 such general lien exists, as a matter of fact ; " and he adds, that " the Uen 
 of bankers, who are a species of factors in pecuniary transactions, stands on 
 the same footing," and, consequently, their right to such lien " need not be 
 pleaded, but the courts are judicially bound to take notice of it." — P. 666. 
 This lien extends to Exchequer biUs.— Id. The judgment of the Ex. Ch. 
 in the above case was afterwards reversed by the House of Lords, but that 
 portion of it which relates to judicial notice of the general lien of bankers, 
 was affirmed. Brandao v. Bamett, 12 CI. & Fin. 787 ; 3 Com. B. 519, S. C. 
 So, in Edie v. E. India Co., 2 Burr. 1226, which turned upon the question, 
 whether a biU payable to A. or order, and indorsed personally to B., could 
 be afterwards indorsed by B. to another, Mr. J. Wibnot observed, "The 
 custom of merchants is part of the law of England, and coui-ts of law must 
 take notice of it as such. There may, indeed, be some questions depending 
 upon customs amongst merchants, where, if there be a doubt about the 
 custom, it may be fit and proper to take the opinion of merchants thereupon ; 
 yet that is only where the law remains doubtful, and even then the custom 
 must be proved by facts, not by opinion only ; and it must also be subject to 
 the control of law."— P. 1228. Ld. Mansfield, however, with Denison and 
 Foster, JJ.'s, rejected the testimony of witnesses to prove the usage, solely 
 on the ground that the question had already been soUmnly settled by two 
 adjudications in the courts of law. See pp. 1224—1226. See also Jones v 
 Pepperoorne, 28 L. J., Ch. 158. 
 
 ' Imperial Bk. v. Lond. & St. Katherine's Dock Co., 46 L. J Ch 337 per 
 Jessel, M.E. ; L. R 5 Ch. D. 195. S. C. ^See cases cited in last note but 'one. 
 
 o4 ^."o"";- ^TT' \ ^■' ' ^PP- ^^^- "^' '■ ^' L^^ K^P" E-- 76 and 
 Q B 346'SC ^' ^*'°^' ^^■' ^' ^■' ^ ^- ^- °- ^^^' *6 ^- J-' 
 
HAP. H.] CUSTOMS JUDICIALLY NOTICED. 7 
 
 gavelkind and borough English lands,^ and it seems any other 
 custom incident to such tenures ; ^ the custom or law of the road, 
 viz., that horses and carriages should respectively keep on the 
 near or left side ; ^ and the following rules with respect to naviga- 
 tion, — first, that ships and steamboats, on meeting " end on or 
 nearly end on in such a manner as to involve risk of collision," 
 should port their helms, so as to pass on the port, or left, side of 
 each other ; next, that steamboats should keep out of the way of 
 sailing ships; and next, that every vessel overtaking another should 
 keep out of its way.* So, every judge will notice the particular 
 
 • 1 Bl. Com. 76 ; Doe v. Soudamore, 2 Ld. Eay. 1025 ; Co. Lit. 175 b ; 
 Crosby v. Hetherington, 4 M. & G. 946, per Tindal, C.J. 
 
 ' In Eider v. Wood, 24 L. J., Ch. 737, "Wood, V.-C, acting on the authority 
 of Payne v. Barker, as reported in Bridg. 18, 23, 26, held that the court would 
 judicially notice aU the customs incident to borough EngUsh tenures. See 
 also 36 & 37 v., c. 66, § 24, subs. 6. 
 
 ^ This rule has been embodied by Professor Selwyn, in what an Etonian 
 would call " Longs and Shorts : " — 
 
 " Sed precor hoc posthac reminiscere, carpe sinistram : 
 Dextram occurrenti linquere norma jubet." 
 
 What is perhaps more to the lawyer's purpose, the rule has also been re- 
 peatedly recognised by the judges at Nisi Prius, in actions for negligent driving 
 and riding. See Leame v. Bray, 3 East, 593, as to carriages, and Turley v. 
 Thomas, 8 C. & P. 104, per Coleridge, J., as to saddle horses. See also 
 14 & 15 v., c. 92, § 13, Ir. In France the law of the road is different, and 
 horses and carriages there pass on the off side. 
 
 * The regulations for preventing collisions at sea, which contain the rules 
 concerning Hghtsj fog signals, steering and sailing, are now embodied in 
 a table issued by virtue of the Act 25 & 26 V., c. 63, § 25, and of two Orders 
 in Council, dated respectively 9 Jan. 1863, and 4 Aug. 1868. See 32 L. J., 
 Pr., Mat. & Adm. 1 ; 1 Lush. Adm. R., App. i. ; and 3 Law Eep. Adm. & Eco. 
 611, 612. § 26 of the same Act enacts how these regulations are to be published 
 and proved, and § 28 enacts, that in case any damage to person or property 
 arises from the non-observance by any ship of these regulations, such damage 
 shall be deemed to have been caused by the wilful default of the person in 
 charge of the deck of such ship, unless it be proved that circumstances made a 
 departure from the regulations necessary. See post, § 206 ; Gen. St. Nav. Co. 
 V. Hedley, 3 Law Eep., P. C. 44 ; Dryden v. AUix, 1 Moo. P. C, N. S. 528 ; 
 The Concordia, 1 Law Eep., Adm. & Ecc. 93 ; The Spring, 1 Law Eep., Adm. 
 & Ecc. 99. As to the law prior to these regulations, see Chadwiok v. City of 
 Dublin St. Packet Co., 6 E. & B. 771 ; Smith v. Voss, 2 H. & N. 97 ; Zugasti 
 V. Lamer, 12 Moo. P. C. E. 331 ; Maddox v. Pisher, 14 Moo. P. C. E. 103 ; 
 
 . Williams v. Gutch, id. 202 ; Tuff v. Warman, 2 Com. B., N. S. 740. See 
 
8 CUSTOMS JUDICIALLY NOTICED. [PART I. 
 
 customs which have been tried, determined, and recorded in his 
 own court.^ So, also, the customs of London, which have been 
 certified by the recorder,^ such, for example, as the custom of 
 foreign attachment ' — the custom that every shop is a market overt 
 for goods of the same kind as are usually sold there * — the custom 
 that married women may be sole traders ^ — and the custom which 
 defines the nature of a liveryman's olfice,^ — will be judicially 
 noticed by the respective courts in which the certificates are 
 recorded ; '' but no one court can take notice of a custom, which 
 
 Morrison v. Gen. St. Navig. Co., 8 Ex. E. 733 ; Gen. St. Navig. Co. v. Morrison, 
 13 Com. B. 581 ; Gen. St. Navig. Co. v. Mann, 14 Com. B. 127 ; Lawson v. Carr, 
 10 Moo. P. C. E. 162 ; Churchward v. Palmer, 10 Moo. P. C. E. 472 ; La Plata, 
 1 Swah. Adm. E. 298 ; Morgan v. Sim, 11 Moo. P. C. E. 307. 
 
 1 Dr. & St. 34 ; 1 Bl. Com. 76. 
 
 == Croshy v. Hetherington, 4 M. & Gr. 933, 946 ; Bruin v. Knott, 12 Sim. 
 452 — 456 ; Blacquiere v. Hawkins, 1 Doug. 380, per Ld. Mansfield. See Blunt 
 V. Lack, 26 L. J., Ch. 148. But uncertified customs must be proved in West- 
 miaster Hall, though they will he judicially noticed in the City Cts. ; Stainton 
 & wife V. Jones, 1 Doug. 380, n. 96, per Ld. Mansfield. So, also, the Ct. of 
 Q. B. in Ireland will not judicially notice a custom of the Ld. May. & Sheff.'s 
 Ct. in DuhUn, unless certified by the recorder ; Simmonds v. Andrews, 1 Jebb 
 & Sy. 531. 
 
 3 Certified by Starkey in 22 Ed. 4. See 1 EoU. Abr. 554 K 5 ; Bruce v. 
 Wait, 1 M. & Gr. 39 ; Crosby v. Hetherington, 4 M. & Gr. 933 ; Westoby v. 
 Day, 2 E. & B. 605. 
 
 " Certified by Sir E. Coke, 5 Eep. 83 6 ; S. C, rather more at length, as 
 L'Evesque de Worcester's case, M. 360 ; S. C, Poph. 84. See Lyons v. De 
 Pass, 11 A. & E. 326 ; and 9 C. & P. 68, S. C, where the custom was held to 
 apply) though the premises were described in evidence as a warehouse, and 
 were not sufficiently open to the street for a person on the outside to see what 
 passed within. See, also. Crane v. London Dock Co., 33 L. J., Q. B. 224; 5 
 B. & S. 313, S. C. 
 
 5 Lavie v. PhiUips, 3 Burr. 1776. Other local customs, as that of carting 
 whores in London, or that of foreign attachment in Bristol, Liverpool, and 
 Chester, are noticed in the respective city courts, 1 Doug. 380, n. 96 and 
 therefore need not be set out on the record. In such cases, if the judgment 
 of the court below is brought before a court of error, such court will also 
 judicially notice the existence of the custom. See Bruce v. Wait, 1 M. & Gr. 
 24, 41, n. o. 
 
 « King V. Clerk, 1 Salk. 349 ; cited by Parke, B., in Piper v. ChappeU, 14 
 M. & W. 649. 
 
 ^ The custom, which formerly regulated the distribution of the personal estate 
 of intestate freemen of the city of London, and other similar customs in York 
 and other places, are now abrogated by 19 & 20 Vict., c. 94. 
 
CHAP* 11.] LAWS AND CUSTOMS OF FOREIGN STATES. " 9 
 
 has merely been certified to another.^ Neither can judicial notice 
 be taken of the usages preyalent among mining partnerships 
 conducted on the cost-book principle, for, without evidence, the 
 judges cannot determine the meaning of the term " cost-book 
 principle." ^ Moreover the courts will not take cognisance of the 
 laws, usages, or customs of a foreign state ; and so strictly is this 
 rule enforced, that all foreign laws, the laws of the colonies,^ and 
 even the laws of Jersey,* Guernsey, or Scotland, must be proved 
 as facts,^ unless steps have been taken, either under the Act of 
 22 & 23 v., c. 63, or under that of 24 & 25 V., c. 11, to obtain a 
 legal opinion on the subject from a superior court of the country, 
 whose laws are under dispute.^ As the laws of Ireland are sub- 
 stantially the same as those of England, except so far as they are 
 varied by statute, it is apprehended that no proof respecting them 
 would be required ; and in accordance with this view a very able 
 judge has suggested that the courts at Westminster would judi- 
 cially recognise the fact, that an action must be commenced by 
 process in Ireland.''^ 
 
 § 6. The courts will also judicially notice the following seals : — § 6 
 the Great Seal of the United Kingdom, and the Great Seals of England, 
 Ireland and Scotland respectively ; ^ the Queen's Privy Seal and 
 Privy Signet, whether in England, Ireland or Scotland ; ^ the seal, 
 
 1 Piper V. Chappell, 14 M. & W. 649, 650, per Parke, B. 
 
 2 In re Bodmin United Mines Co., 23 Beav. 370. 
 
 ^ Prowse V. The European & Amer. St. Shipping Co., 13 Moo. P. C. R. 
 484 ; S. C, nom.. The Peerless, 1 Lush. Adm. E. 103. 
 
 '' Brenan's case, 10 Q. B. 498, per Patteson, J. 
 
 * Dalrymple v. Daliymple, 2 Hagg. Cons. 54 ; Mostyn v. Fabrigas, 1 Cowp. 
 1Y4, perLd. Mansfield; Sussex Peer, cas'e, 11 CI. & Fin. 114 — 117; Male v. 
 Roberts, 3 Esp. 163, per Ld. Eldon ; R. v. Povey, 22 L. J., M. C. 19 ; Pearce 
 & D. 32, S. C. ; Woodham v. Edwards, 5 A. & E. 771 ; 1 N. & P. 207, S. C. ; 
 Wey V. Tally, 6 Mod. 194 ; Story, Confl. § 637, and cases cited in n. See also 
 post, § 48, 1423—1425. 
 
 ^ See Lord v. Colvin, 1 Drew. & Sm. 24 ; Login v. Princess of Coorg, 30 
 Beav. 632. 
 
 ' Reynolds v. Fenton, 3 Com. B. 194, per Maule, J., explaining Ferguson 
 V. Mahon, 11 A. & E. 179 ; 3 P. & D. 143, S. C. 
 
 8 Lord Melville's case, 29 How. St. Tr. 707. 
 
 " Foggassa's case, 24 Edw. 3, 23, cited in Olive v. Guin, 2 Sid. 146 ; La,ne's 
 case, 2 Rep. 17 6. 
 
10 SEALS JUDICIALLY NOTICED. [PAKT I. 
 
 and the privy seal, of the duchy of Lancaster ; the seal, and the 
 privy seal, of the duchy of Cornwall ; ^ the seals of the superior 
 courts of justice ; ^ the old Chancery Common Law seal,^ and the 
 seal of the Chancery Enrolment office ; * the seals of the High 
 Court of Admiralty, whether for England or Ireland ; ^ of the Pre- 
 rogative Court of Canterbury ; ^ and of the Court of the Vice- 
 Warden of the Stannaries ; " the seals of all courts constituted by 
 Act of Parliament, if seals are given to them by the Act,^ and, 
 therefore, the seals of the Court for Divorce and Matrimonial 
 causes in England ; ^ of the Court for Matrimonial causes and 
 matters in Ireland ; ^° of the principal Eegistry, and of the several 
 district Eegistries of the Supreme Court of Judicature ; ^^ of the 
 principal Eegistry, and of the several district Eegistries of the old 
 
 1 26 & 27 v., c. 49, § 2. 
 
 2 Tooker v. D. of Beaufort, Say. 297. 
 
 ^ 12 & 13 v., c. 109, § 11, after enacting that a seal shall he provided, -whicli 
 shall he called the " Chancery Common Law Seal," goes on to enact, that " all 
 courts, tribunals, judges, justices, ofllcers, and other persons whomsoever shall 
 take notice of the said seal, and receive impressions thereof in evidence, in like 
 manner as impressions of the great seal are received in evidence, and shall also 
 take notice of and receive in evidence, vri-thout further proof, all and every of 
 such writs, proceedings, iustruments, documents, and writirigs whatsoever, 
 which shall purport or appear to he sealed or stamped with the said Chancery 
 Common Law Seal for the time heing, in like manner as if the same had heen 
 sealed with the great seal." 
 
 ■* 12 & 13 v., c. 169, § 17, after enacting that such a seal or stamp as the 
 Master of the RoUs shaU approve of shaU he provided, and shall be called "the 
 seal of the Enrolment Office in Chancery," goes on to enact, that " aU courts 
 and other tribunals, judges, justices, ofacers, and other persons whomsoever, 
 shall take notice of the said seal of the Chancery Enrolment OfiSce, and shall 
 take notice of and receive in evidence every instriunent and writing purporting 
 or appearing to be sealed or stamped therewith, without proof that the same 
 has been so sealed or stamped." 
 
 ' Green v. Waller, 2 Ld. Ray. 893 ; 24 & 25 V., c. 10, § 14 ; 30 & 31 Y., 
 c. 114, § 21, Ir. 
 
 " Kempton v. Cross, Rep. tem. Hardw. 108. 
 
 ' 6 & 7 W. 4, c. 106, § 19. 
 
 ^ Doe V. Edwards, 1 P. & D. 408 ; 9 A. & E. 554, S. C. 
 
 » 20 & 21 v., c. 85, § 13, after enacting that a seal shall he made for the 
 court, provides that " all decrees and orders, or copies of decrees or orders of the 
 said court, sealed with the said seal, shall be received in evidence." 
 
 '» 33&34V.,c. 110, §11, Ir. 
 
 " 36 & 37 v., c. 66, § 61, after enacting that in every district registry such 
 
CHAP. II. J SEALS JUDICIALLY NOTICED. 11 
 
 Court of Probate in England ^ and of the present Court of Probate 
 in Ireland ; ^ of the old and new Courts of Bankruptcy ; ^ of the 
 Insolvent Debtors' Court,* now abolished ; of the Court of Bank- 
 ruptcy and Insolvency in Ireland/ which, since the 6th of August, 
 1872, has been called " The Court of Bankruptcy in Ireland;" ^ 
 of the several United Diocesan Courts and Eegistries in Ireland ; '' 
 of the Landed Estates Court, Ireland ; ^ of the Eecord of Title 
 
 seal shaU. be used as the Lord ClianceUor shall direct, goes on to provide, that 
 " such seal shall he impressed on every writ and other document issued out of 
 or filed in such District Registry ; and aU such writs and documents, and all 
 exemplifications and copies thereof, purporting to be sealed with the seal of any 
 such District Eegistry, shall in all parts of the United Kingdom be received in 
 evidence without further proof thereof." 
 
 1 20 & 21 v., c. 7V, § 22, after enacting that seals shall be made for the court, 
 " that is to say, one seal to be used in its principal registry, and separate seals to 
 be used in the several district registries,'' provides that " all probates, letters of 
 administration, orders, and other instruments, and exemplifications and copies 
 thereof, respectively, purporting to be sealed with any seal of the Court of 
 Probate, shall in all parts of the United Kingdom be received in evidence 
 without further proof thereof." 
 
 2 20 & 21 v., c. 79, § 27, Ir., contains an enactment precisely similar to that 
 recited in the last preceding note. 
 
 ' 32 & 33 v., c. 71, § 109, enacts, that every court having jurisdiction in 
 bankruptcy, shall have a seal, and "judicial notice shall be taken of such seal, 
 and of the signature of the judge or registrar of any such court, ia all legal 
 proceedings." The Bankruptcy Eules of 1870 provide, by r. 10, that " aU 
 summonses, petitions, notices, orders, warrants, and other process issued by 
 the court, shall be sealed." See also r. 12, as to sealing of "office copies." 
 24 & 25 v., c. 134, § 204 (now repealed), enacted that "all courts, judges, 
 justices, and persons judicially acting, and other officers, shall take judicial 
 notice of the signature of any commissioner or registrar of the Courts (of 
 Bankruptcy), and of the seal of the courts, subscribed or attached to any judicial 
 or official proceeding, or document, to be made or signed under the provisions 
 of this Act." 
 
 4 Doe V. Edwards, 1 P. & D. 408 ; 9 A. & E. 554, S. C. 
 
 * 20 & 21 v., c. 60, § 362, Ir., enacts, that " all courts, judges, justices, and 
 persons judicially acting, and other officers, shall take judicial notice of the 
 signature of any judge or registrar, or chief clerk of the court, and of the seal of 
 the court, subscribed or attached to any judicial or official proceeding or docu- 
 ment, to be made or signed under the provisions of this Act." 
 
 6 35 & 36 v., c. 58, § 6, Ir. 
 
 7 27&28V., C..54, §§9, 50, Ir. 
 
 ' 21 & 22 v., c. 72, § 8, Ir., enacts, that " the said Landed Estates Court, 
 Ireland, shall cause to be made a seal for their said court, and shall cause to be 
 sealed therewith all orders, conveyances, and other instruments made by or 
 
12 SEALS JUDICIALLY NOTICED. [PAET I. 
 
 Office of that court ; ^ and of the County Courts.^ They will also 
 judicially notice the seal of the corporation of London,^ and perhaps 
 the seal of a notary-public, he being an officer recognised by the 
 whole commercial world.* Several other seals are rendered admissible 
 in evidence without proof of their genuineness, by the express language 
 of particular statutes ; and among them may be noticed the seal of 
 the Local Government Board, whether for England ^ or for Ireland ; ^ 
 of the late Poor-law Board ; '' of the late Local Boards of Health,^ and 
 of the new Urban Sanitary Authorities,' and Joint Sanitary Boards ; ^^ 
 of the now abolished Commissioners for the Sale of Incumbered Estates 
 in Ireland ; ^^ of the Land Eegistry Office in England,^^ whether 
 established under the Act of 1862 or under that of 1875 ; of the 
 
 prooeeding from the said court in pursuance of this Act ; and all such, 
 orders, conveyances, and other instruments, or copies thereof, purporting to be 
 sealed with the seal of the said court, shall be received in evidence without any- 
 further proof thereof." 
 
 1 28 & 29 v., c. 88, § 56, Ir., enacts, that " a seal shall be prepared for the 
 Record of Title Office of the Court, and shall be kept in the custody of the 
 officer ; and all certificates and other documents purporting to be sealed with 
 such seal shall be admissible as evidence without further proof." 
 
 2 9 & 10 v., c. 95, §§ 3, 57, 111. 
 
 ■■ Doe V. Mason, 1 Esp. 53, per Ld. Kenyon. 
 
 * Anon., 12 Mod. 345 ; Bayl. Bills, 490 ; Hutcheon v. Mannington, 6 Ves. 
 823 ; Cole v. Sherard, 11 Ex. E. 482 ; and Fumell v. Stackpoole, Milw., Ec. 
 Ir. E. 485, 486. But see In re Earl's Trusts, 4 Kay & J. 300, where it was 
 held that the seal of a notary pubUo of a foreign country not under the 
 Queen's dominion could not be judicially noticed. See also In re Davis's 
 Trusts, 8 Law Eep. Eq. 98 ; Nye ■<;. Macdonald, 39 L. J., P. C. 34 ; 3 Law 
 Eep., P. C. 331, S. C. ; ia which last case it was held that the execution of a 
 deed in a colony could not be proved by a notary's certificate. 
 
 5 34 & 45 v., c. 70, § 5. « 35 & 36 V., c. 69, § 4, Ir. 
 
 7 10 & U v., c. 109, § 5 ; 1 & 2 v., c. 56, § 121, Ir. ; 10 & 11 V., c. 90, 
 § 3, Ir. 8 11 & 12 v., 0. 63, § 35 ; 21 & 22 V., c. 98, § 4. 
 
 ' 38 & 39 v., c. 55, § 7. '" 38 & 39 V., c. 55, § 280. 
 
 " 12 & 13 v., c. 77, § 2, Ir., enacts, that "the Commissioners shall cause 
 to be made a seal for the commission, and shall cause to be sealed therewith 
 all orders, conveyances, and other instruments made by or proceeding from 
 the Commissioners, in pursuance of this Act ; and all such orders, convey- 
 ances, and other instruments, or copies thereof, purporting to be sealed with 
 the seal of the Commissioners, shall be received in evidence without any 
 further proof thereof." See 21 & 22 V., c. 72, § 23. 
 
 »2 25 & 26 v., c. 53, § 123, enacts, that " a seal shall be prepared for the land 
 registry office ; and any instrument iDurporting to be sealed with such seal shall 
 be admissible in evidence ; " 38 & 39 V., c. 87, § 107. 
 
CHAP, n.] SEALS JUDICIALLY NOTICED. 13 
 
 District Eegistry Offices created under the Act last referred to ; ^ of 
 the Office for the Eegistration of Assurances of lands in Ireland ; - 
 of the General Eegister Office in England/ or Ireland ; * of the 
 Charity Commissioners for England and Wales ;^ of the Railway 
 Commissioners;® of the Commissioners of Her Majesty's Works 
 and Public Buildings;'' of the respectiTe Commissioners for the 
 Universities of Oxford and Cambridge ; ^ of the Prison Commis- 
 sioners for England, and of the General Prisons Board for Ireland ; ^ 
 of the special Commissioners for Irish Fisheries ; ^^ of the Com- 
 missioners of Public Works in Ireland, at least for the purposes of 
 the Drainage Acts ; ^^ of the Commissioners of Patents for Inven- 
 tions ; ^^ of the Office of the Eegistrar of Designs for articles of 
 
 • 38 & 39 v., 0. 87, § 120. 
 
 2 13 & 14 v., c. 72, § 45, Ir., enacts, tliat " there shall be made and kept at 
 the said registry office a seal, to be called ' The 8eal of the Register Office ; ' 
 and judicial notice shall be taken of the impressions thereof in all courts, 
 without any evidence of the said seal having been impressed, or any other 
 evidence in relation thereto.'' 
 
 ' 6 & 7 W. 4, c. 86, § 38, enacts, that " all certified copies of entries purport- 
 ing to be sealed or stamped with the seal of the said register office, shall be 
 received as evidence." See 3 & 4 V., c. 92, § 9. * 26 & 27 V., c. 11, § 5, Ir. 
 
 * 16 & 17 v., c. 137, § 6, enacts, that " The Charity Commissioners for 
 England and Wales " " may have and use a seal for authenticating documents," 
 and "shall sit from time to time as a board." 18 & 19 V., c. 124, § 4, enacts, 
 that " every act of the board may be sufficiently authenticated by the seal of 
 the Commissioners, and the signature of the secretary, or, in his absence, of 
 the chief clerk." § 5 enacts, that " all orders, certificates, schemes, and other 
 documents, issued under the seal of the board shall be deemed and taken to be 
 the originals, and copies thereof shall be entered in the books of the board, 
 and all such entries may be sufficiently certiiied by the signature of the secre- 
 tary, or, in his absence, of the chief clerk ; every order, certificate, scheme, 
 and other document, purporting to be sealed with the seal of the board, shall 
 be received in evidence without further proof ; and any writing purporting to 
 be a copy extracted from the said books, and to be certified as aforesaid, shall 
 be received in evidence in like manner." « 36 & 37 V., c. 48, § 4. 
 
 ? 15 & 16 v., 0. 28, § 1 ; 37 & 38 V., c. 84, § 2. 
 
 « 40 & 41 v., c. 48, §§ 4, 9. 
 
 9 40 & 41 v., c. 21, § 6, and c. 49, § 4, Ir. 
 
 w 26 & 27 v., c. 114, § 33, Ir. ; continued by 31 & 32 V., c. Ill ; and 
 amended by 32 & 33 V., c. 92, Ir. 
 
 " 26 & 27 v., c. 88, §§ 3, 5, Ir. ; 29 & 30 V., c. 49, § 21, Ir. 
 
 '2 15 & 16 v., c. 83, § 2, enacts, that "it shall be lawful for the Commis- 
 sioners to cause a seal to be made for the purposes of this Act, and from time 
 to time to vary such seal, and to cause to be sealed therewith all the warrants 
 -for letters patent under this Act, and all instruments and copies proceeding 
 
14 SEALS JTJDICULLY NOTICED. [PAET I. 
 
 manufacture;^ and of the Eecord office, whether in England^ or in 
 Ireland.^ In all proceedings, too, under the winding-up clauses of 
 the Companies Act, 1862, the seal of any office of the Court of 
 Chancery, or Bankruptcy, in England or in Ireland, of the Court of 
 Session in Scotland, or of the Court of the Vice-Warden of the 
 Stanneries, when appended to any document made, issued, or 
 signed under those clauses, or any official copy thereof, must he 
 judicially noticed.* 
 
 § 7. The principle of admitting in evidence official documents § 7 
 without formal proof, was extended to a numerous class of cases 
 hy the Documentary Evidence Act, of 1845.^ That statute, after 
 
 from the office of the Commissioners ; and all courts, judges, and other persons 
 whomsoever, shall take notice of such seal, and receive impressions thereof in 
 evidence, in like manner as impressions of the great seal are received in 
 evidence ; and shall also take notice of, and receive in evidence, without 
 further proof or production of the originals, all copies or extracts certified 
 under the seal of the said olfice of or from documents deposited in such office." 
 16 & 17 v., c. 115, § 4, enacts, that "printed or manuscript copies or extracts, 
 certified and sealed with the seal of the Commissioners, of letters patent, 
 specifications, disclaimers, memoranda of alterations, and all other documents 
 recorded and filed in the Commissioners' office, or in the office of the Chancery 
 Division of the High Court, appointed for the filing of specifications, shall be 
 received in evidence in all proceedings relating to letters patent for inventions, 
 in all courts whatsoever within the United Kiugdom of Great Britain and 
 Ireland, the Channel Islands, and Isle of Man, and her majesty's colonies and 
 plantations abroad, without further proof or production of the originals." § 5 
 further enacts, that " certified printed copies, under the seal of the Commis- 
 sioners, of all specifications and complete specifications, and fac-simile printed 
 copies of the drawings accompanying the same, if any disclaimers, and 
 memoranda of alterations filed, or hereafter to be filed, under the said patent 
 law Amendment Act, shall be transmitted to the office of the Director of 
 Chancery in Scotland, and to the Enrolment office of the Coiu-t of Chancery 
 in Ireland, within twenty-one days after the filing thereof, respectively ; 
 and the same shall be filed in the office of Chancery in Scotland and Irelaaid, 
 respectively, and certified copies, or extracts from such documents, shall be 
 furnished to all persons requiring the same, on payment of such fees as the 
 Commissioners shall direct ; and such copies or extracts shall be received in 
 evidence in all courts in Scotland and in Ireland respectively, in aU proceed- 
 ings relating to letters patent for inventions, without further proof or produc- 
 tion of the originals." i 5 & 6 V., c. 100, § 16 ; and C & V V., c. 65, §§ 6, 7. 
 
 2 1 & 2 v., c. 94, § U. 3 30 & 31 y., c. 70, § 18, Ir. 
 
 ■• 25&26 v., c. 89, § 125. 
 
 ' 8 & 9 v., c. 113. The author of the present work naturally feels some 
 satisfaction in referring to this statute, as he originally suggested to the Law 
 
CHAP. II.] DOCUMENTARY KVIDENCE ACT, OF 1845. 15 
 
 reciting that " it is provided by many statutes that various certifi- 
 cates, of&cial and public documents, documents and proceedings 
 of corporations and of joint-stock and other companies, and certi- 
 fied copies of documents, by-laws, entries in registers and other 
 books, shall be receivable in evidence of certain particulars in 
 courts of justice, provided they be respectively authenticated in 
 the manner prescribed by such statutes," — that " the beneficial 
 effect of these provisions has been found by experience to be 
 greatly diminished by the difficulty of proving that the said 
 documents are genuine," — and that "it is expedient to facilitate 
 the admission in evidence of such and the like documents : " 
 enacts, that "whenever hy any Act now in force or hereafter to he 
 in force, any certificate, official or public document, or document 
 or proceeding of any corporation or joint-stock or other company, 
 or any certified copy of any document, 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 respectively be admitted in evidence, provided 
 they respectively purport to be sealed or impressed vpith 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."^ 
 
 Sect. 2 enacts, that " all courts, judges, justices, masters in 
 chancery, masters of courts, commissioners judicially acting, and 
 other judicial officers, shall henceforth take judicial notice of the 
 
 Amend. Soc. tlie alterations emTjodied therein, and afterwards prepared the 
 bill, wMch, under the protection of Ld. Brougham, obtained the sanction of 
 the legislature. 
 
 ' The words after the last comma were introduced into the Act while passing 
 through the House of Commons. They appear to have been copied from the 
 Act of 1 & 2 v., c. 94, § 13 (cited post, § 1533, n.) by some Honourable Mem- 
 ber, who did not know distinctly what he was about. 
 
16 SIGNATUBES OF JUDGES PRIVATE ACTS. [PAET I. 
 
 signature of any" judge of the Supreme Court of Judicature,' 
 "provided such signature be attached or appended to any decree, 
 order, certificate, or other judicial or official document." 
 
 Sect. 3 enacts, that " all copies of private and local and per- 
 sonal Acts of Parliament not public Acts, if pv/rporting to be 
 printed by the Queen's printers, and all copies of the journals of 
 either House of Parliament, and of royal proclamations, purport- 
 ing to be printed by the printers to the Crown, or by the printers 
 to either House of Parliament, or by any or either of them, shall 
 be admitted as evidence thereof by all courts, judges, justices, 
 and others, without any proof being given that such copies were 
 so printed." ^ 
 
 1 36 & 37 v., c. 66. 
 
 ^ § 4 provides, tliat " if any person shall forge the seal, stamp, or signature 
 of any certificate, official or public document, or document or proceeding of 
 any corporation or joint-stock or other company, or of any certified copy of any 
 documient, by-law, entry in any register or other book, or other proceeding as 
 aforesaid, or shall tender in evidence any such certificate, official or public 
 document, or document or proceeding of any corporation or joint-stock or other 
 company, or any certified copy of any docmnent, by-law, entry in any register 
 or other book, or of any other proceeding, with a felse or counterfeit seal, 
 stamp, or signature thereto, knowing the same to be false or counterfeit, whether 
 such seal, stamp, or signature be those of or relating to any corporation or com- 
 pany already established, or to any corporation or company to be hereafter 
 established, — or if any person shall forge the signature of any such judge as 
 aforesaid to any order, decree) certificate, or other judicial or official document, 
 or shall tender in evidence, any order, decree, certificate, or other judicial or 
 official document with a false or counterfeit signature of any such judge as afore- 
 said thereto, knowing the same to be false or counterfeit, or if any person shall 
 print any copy of any private Act, or of the journals of either House of Par- 
 liament,* which copy shall falsely purport to have been printed by the printers 
 to the Crown, or by the printers to either House of Parliament, or by any or 
 either of them, — or if any person shall tender in evidence any such copy, know- 
 ing that the same was not printed by the person or persons by whom it so pur- 
 ports to have been printed, — every such person shall be guilty of felony, and 
 shall upon conviction be liable to " penal servitude for a period not exceeding 
 seven years or less than five years," see 20 & 21 V., c. 3, § 2, as amended by 
 27 & 28 v., c. 47, § 2, " or to imprisonment for any term not more than 
 
 The words " or of any royal proclamation," were introduced into the 
 original draft of the bill, and would seem to have been accidentally omitted. 
 The omission, however, is remedied by 31 & 32 V., c. 37, § 4, cited, post, 
 1527, in n. 
 
CHAP, n.] STANDING OEDESS OF HOUSE OF COMMONS. 17 
 
 § 8. A somewhat nice question respecting the meaning of § 
 the word "journals," as used in the third section of this Act, 
 has been raised at Nisi Prius.^ An action for work and labour 
 was brought by an engineer against the director of a railway- 
 company, and the defence was that the plans and sections 
 deposited by the plaintiff had not been drawn in accordance 
 with the Standing Orders of the House of Commons, and that, 
 consequently, the work was valueless. In order to establish this 
 case, it became necessary to prove the Standing Orders, and 
 with that view, the defendant's counsel tendered in evidence a 
 book, which purported to contain the Standing Orders of the 
 House of Commons from 1685 to 1846 inclusive, and to be 
 printed and published by Luke James Hansard, by permission of 
 the Eight Hon. Charles Shaw Lefevre, Speaker.^ The court 
 was then called upon to take judicial notice that these orders 
 were the resolutions of the House, and as such were entered on 
 their journals ; and 'it was argued, that the book produced being 
 a copy of extracts from these journals, must be regarded in the 
 same light as a copy of the entire journals ; that the Act, if 
 reasonably construed, must apply to a copy of a part of the 
 journals, as well as to a copy of the whole, and that although it 
 
 three nor less than one year, with, hard labour : Pbovided also, that when- 
 ever any such document as before mentioned shall have been received in 
 evidence by virtue of this Act, the court, judge, commissioner, or other person 
 officiating judicially who shall have admitted the same, shall, on the request 
 of any party against whom the same is so received, be authorised, at its or at 
 his own discretion, to direct that the same shall be impounded, and be kept 
 in the custody of some officer of the court or other proper person, until further 
 order touching the same shall be given, either by such court, or the court to 
 which such master or other officer belonged, or by the persons or person who 
 constituted such court, or by some one of the equity or common law judges of 
 the superior courts at Westminster, on application being made for that pur- 
 pose." § 5 enacts, that the Act shall not extend to Scotland. See 24 & 25 V., 
 c. 98, §§ 27—29. 
 
 ' Pritchard v. Black, 21 June, 1847, Ex., coram Piatt, B., MS. See Chubb 
 V. Solomons, 3 C. & Kir. 75, which is clearly not law. 
 
 2 It is to be regretted that Mr. Hansard, in publishing the Standing Orders 
 and other documents of the House of Commons, does not state in the title-pao-e 
 his official character. The Standing Orders of the Lords purport to be " printed 
 by Geo. E. Eyre and Wm. Spottiswoode,- Printers to the Queen's Most Excel- 
 lent Majesty." 
 
18 COLONIAL LAWS AND PROCLAMATIONS. [PAET. I. 
 
 did not directly appear that Mr. Hansard was the printer to the 
 House of Commons, yet this fact might fairly be inferred from 
 the statement that the hook was printed by the permission of the 
 Speaker. Mr. Baron Piatt intimated an opinion that the evidence 
 was not admissible, but it became unnecessary expressly to decide 
 the point, as the counsel for the plaintiff waived his objection, 
 and the book was put in by consent. 
 
 § 9. An Act, which was passed in the year 1865 to remove § 8a 
 doubts as to the validity of colonial laws,^ has simplified the mode 
 of proving such laws, by enacting in § 6, that " the certificate of the 
 clerk or other proper officer of a legislative body in any colony, 
 to the effect that the document to which it is attached is a true 
 copy of any colonial law assented to by the Governor of such 
 colony, or of any bill reserved for the signification of Her Ma- 
 jesty's pleasure by the said Governor, shall be prima facie evi- 
 dence that the document so certified is a true copy of such law or 
 bill, and, as the case may be, that such law has been duly and 
 properly passed and assented to, or that such bill has been duly 
 and properly passed and presented to the Governor ; and any pro- 
 clamation purporting to be published by authority of the Governor 
 in any newspaper in the colony to which such law or bill shall relate, 
 and signifying Her Majesty's disallowance of any such colonial 
 law, or Her Majesty's assent to any such reserved bill as aforesaid, 
 shall be prima facie evidence of such disallowance or assent." 
 
 § 10. Other facilities in the proof of foreign and colonial docu- § 9 
 merits had already been afforded in 1851 by Lord Brougham's Act 
 to amend the Law of Evidence.^ The seventh section of this 
 statute enacts, that " all proclamations, treaties, and other acts of 
 state of any foreign state, or of any British colony, and all judg- 
 ments, 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, 
 
 1 28 & 29 v., c. 63. " U & 15 V., c. 99. 
 
CHAP. II.] LOED brougham's EVIDENCE ACT OP 1851. 19 
 
 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 authenticated 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 belongs ; 
 and if the document sought to be proved be a judgment, decree, 
 order, or other judicial proceeding of any foreign or colonial court, 
 or any 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 and 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 respectively be admitted in evidence in 
 every case in which the original document 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." 
 
 § 11. Moreover, the statute passed in 1855 to enable British s qa 
 diplomatic and consular agents to administer oaths and to perform 
 notarial acts,^ much simplifies the proof of affidavits sworn " in 
 foreign parts out of her Her Majesty's dominions ; " for it enacts, in 
 § 3, that " any document purporting to have affixed, impressed, or 
 subscribed thereon or thereto the seal and signature of any British 
 
 ' See 18 & 19 V., c. 119, § 97, aa to proof of proclamations made by 
 governors of colonies under the Passengers' Act, 1855. 
 
 2 18 & 19 v., c. 42. The provisions of this Act, somewhat enlarged, are 
 made applicable to affidavits, &c., used in the Court of Probate, or in the 
 Court for Divorce, or in the Irish Court for Matrimonial Causes. See § 31 of 
 21 & 22 v., c. 95 ; § 20 of 21 & 22 V., c. 108 ; and § 16 of 34 & 35 V., 
 c. 49, Ir. 
 
 c 2 
 
20 FOEBIGN AND COLONIAL DOCUMENTS. [PAKT I. 
 
 ambassador, envoy, minister, charge d'affaires, secretary of embassy 
 or of legation, consul-general, consul, vice-consul, acting consul, 
 pro-consul, or consular agent, in testimony of any oath, af&davit, 
 affirmation, or" notarial "act having been administered, sworn, 
 affirmed, had, or done by or before him, shall be admitted in 
 evidence, without proof of any such seal and signature being the 
 seal and signature of the person whose seal and signature the same 
 purport to be, or of the official character of such person."^ 
 
 § 12. The Act, too, 9f 1862, for amending the practice in the old § 10 
 Court of Chancery,^ contains an important clause on this subject ; 
 for, after enacting in section twenty- two, that " all pleas, answers, 
 disclaimers, examinations, affidavits, declarations, affirmations, and 
 attestations of honour in causes or matters depending in the High 
 Court of Chancery, and also acknowledgments required for the 
 purpose of enrolling any deed in the said court, shall and may be 
 sworn and taken in Scotland, or Ireland, or the Channel Islands," or 
 in any colony, plantation, or place under the dominion of Her 
 Majesty in foreign parts* before any judge, court, notary public, 
 or person lawfully authorised to administer oaths ^ in such country, 
 colony, island, plantation, or place respectively, or before any of Her 
 Majesty's consuls or vice-consuls in any foreign parts out of Her 
 Majesty's dominions," — it goes on to provide, that " the judges 
 and other officers of the said Court of Chancery^ shall take judicial 
 notice of the seal or signature, as the case may be, of any such 
 
 ' § 4 enacts, that persons swearing or afBrming falsely under the Act shall 
 he guilty of perjury, and § 5 enacts, that persons forging the seal or signature 
 of any such diplomatic or consular agent, or knowingly tendering in evidence 
 any document with a false seal or signature thereto, shall be guilty of felony. 
 See post, § 1568, as to §§ 1 & 2 of the Act. M5 & 16 V., c. 86. 
 
 3 Extended to the Isle of Man by 16 & 17 V., c. 78, § 6. 
 
 ■* As to affidavits, &c., taken in the Ionian Islands, see 27 & 28 V., c. 77, 
 §§ 13-16. 
 
 * In Baillie v. Jackson, 3 De Gex, M. & G. 38, the Lds. Js. refused to take 
 judicial notice of the signature of the Registrar of Deeds in St. Vincent, which 
 was appended to the certificate of a deed as registered in the proper oflftoe of 
 the island, it being admitted that the Registrar had no authority to administer 
 an oath. 
 
 6 Extended to the Chancery of the County Palatine of Lancaster by 16 
 & 17 v., c. 78, § 7. 
 
CHAP. II.] WHAT AFFIDAVITS ARE JUDICIALLY NOTICED. 21 
 
 court, judge, notary public,''- person, consul, or vice-consul, at- 
 tached, appended, or subscribed to any such pleas, answers, dis- 
 claimers, examinations, affidavits, affirmations, attestations of 
 honour, declarations, aclmowledgments, or other documents to be 
 used in the said court."" A similar clause is also inserted in 
 the Chancery (Ireland) Act, 1867,^ the Lunacy Eegulation (Ire- 
 land) Act, 1871,* the Court of Admiralty Act, 1854,^ the Court 
 of Admiralty (Ireland) Act, 1867,'' the Court of Probate Act, 1858,7 
 the Court for Divorce Act of the same year,^ the Matrimonial Causes 
 (Ireland) Act, 1871,' and the Crown Suits, &c.. Act, 1865.io 
 
 § 13. Again, the Bankruptcy Act for Scotland,-'^ which was § 10b 
 passed in 1856, facilitates the proof of certain Scottish judicial 
 documents by enacting in § 174, that " all deliverances," — which 
 fantastical term includes all orders, warrants, judgments, deci- 
 sions, interlocutors, or decrees under that Act,-'^ — " purporting to 
 be signed by the Lord Ordinary or by any of the judges of the 
 Court of Session, or by the sheriff [or sheriff substitute] ,^' as well 
 as all extracts or copies thereof, or from the books of the Court 
 of Session, or the Sheriff Court, purporting to be signed or certified 
 by any clerk of court, or extracts from or copies of registers pur- 
 porting to be made by the keeper thereof, or extractor, shall be 
 judicially noticed by all courts and judges in England, Ireland, 
 and Her Majesty's other dominions, and shall be received as prima 
 facie evidence, without the necessity of proving their authenticity or 
 correctness, or the signatures appended, or the official character of 
 
 ' See ante, n. ■*, p. 12. 
 
 2 These provisions are extended to affidavits made in matters in lunacy, hj 
 the Act of 16 & 17 V., c. 70, § 57, and also to " all affidavits, declarations, and 
 affirmations, to be used before any registrar or other officer of any registry 
 office in Great Britain or Ireland, for any purpose connected with registration 
 of deeds or wills or other documents or things, under the authority of parlia- 
 ment," by 16 & 17 v., c. 78, § 6. 
 
 3 30 & 31 v., c. 44, § 81, Ir. ■• 34 & 35 V., c. 22, § 25, Ir. 
 
 5 17 & 18 v., c. 78, § 8. 6 30 & 31 V., c. 114, § 57, Ir. 
 
 7 21 & 22 v., 0. 95, § 32. ^ 21 & 22 V., 0. 108, § 21. 
 
 » 34 & 35 v., 0, 49, § 17, Ir. 
 
 "> 28 & 29 v., 0. 104, § 18. See also § 43 of the same Act. 
 
 " 19 & 20 v., c. 79. 12 § 4, 13 j^_ 
 
22 WHAT SIGNATURES AEE JUDICIALLY NOTICED. [PAET I. 
 
 the persons signing, and shall be sufficient warranty for all diligence 
 and execution by law competent." 
 
 § 14.1 jjj America, the signature of the Chief of the Executive § 12 
 of the State is recognised without proof ;^ and so, in Louisiana, 
 are also the signatures of executive and judicial officers to all 
 official acts.^ The English doctrine certainly does not extend 
 this length, though it is difficult to define its exact limits. On 
 the one hand, the signatures of the judges of the Supreme Court 
 of Judicature, and of the old superior equity and common law judges, 
 must be judicially noticed, if appended to any judicial or official 
 document ; * and the legislature has attached the same credit to 
 the signatures of the commissioners and registrars of the Old 
 Courts,^ and of the judges and registrars of the New Courts,^ of 
 Bankruptcy in England, and of the judges, registrars, and chief 
 clerks of the Court of Bankruptcy and Insolvency, now called the 
 Court of Bankruptcy,'^ in Ireland.^ So, in all proceedings under 
 the winding-up clauses of the Companies Act, 1862, judicial notice 
 must be taken of the signatures of the officers of the Old Courts of 
 Chancery in England or Ireland, or of the Courts of Bankruptcy in 
 England or Ireland, or of the Court of Session in Scotland, or of 
 the registrar of the Court of the Vice-Warden of the Stannaries, 
 whenever such signatures are subscribed to any document made, 
 issued, or signed under such clauses, or any official copy thereof.* 
 Many other signatures attached to documents, which are rendered 
 admissible by statutes, need not be proved ; ^° and it seems also that, 
 in practice, no proof is required of the handwriting of the keeper, 
 or of the deputy-keeper, of Whitecross Street Prison,^' which for all 
 
 ' Gr. Ev. § 6, in part, as to first four lines. 
 
 2 Jones V. Gale's Exors., 4 Mart. 635. 
 
 3 Id. ; Wood V. Fitz, 10 Mart. 196. ■* 8 & 9 V., c. 113, § 2, ante, § 7. 
 5 24 & 25 v., c. 134, § 204, cited ante, p. 11, n. K 
 
 ° 32 & 33 v., 0. 71, § 109, cited ante, p. 11, n. K 
 
 7 35 & 36 v., c. -58, § 6, Ir. 
 
 8 20 & 21 v., c. 60, § 362, Jr., cited ante, p. 11, n. K 
 
 9 25 & 26 v., 0. 89, § 125. 
 
 w 8 & 9 v., c. 113, § 1, ante, § 7. A partial list of the more important of 
 these documents will be given in Part iii. Cli. iv., on Public Documents. 
 " 25 & 26 v., c. 104. 
 
CHAP. II.] GAZETTES WHEN JUDICIALLY NOTICED. 23 
 
 purposes of law is now regarded as the Queen's Prison.^ On the 
 other hand, it appears highly prohable that the courts would not 
 recognise the signatures of the Lords of the Treasury to their 
 official letters ; ^ and it is even a matter of some doubt whether the 
 royal sign-manual would be judicially noticed. On one occasion,^ 
 before the House of Peers, a warrant purporting to be so signed was 
 admitted without proof, but as the party putting ia this document 
 was prepared to prove it if necessary, the acquiescence of the oppo- 
 site counsel amounts to little. In another case,* the judges decided 
 that the King's sign-manual was admissible to show His Majesty's 
 intention of pardoning a prisoner ; and, in a third case,^ the sign- 
 manual was actually produced for the very purpose ; but on neither 
 of these occasions was any question raised as to the necessity of 
 proving the signature to be genuine. 
 
 § 15. The judges will take notice of the London, Dublin, or § 13 
 Edinburgh Gazette on its mere production, and it is unnecessary to 
 prove that it was bought at the office of the Queen's printer, or to 
 offer any evidence as to whence it came.* 
 
 § IQJ It is unnecessary to prove facts which may certainly be § 14 
 Imown from the invariable course of nature ; such as that a man 
 is not the father of a child, where non-access is already proved until 
 within six months of the woman's delivery ;^ neither is it necessary 
 to prove the course of time,^ or of the heavenly bodies ; ^° nor the 
 
 1 Alcock V. Whatmore, 8 Dowl. 615 ; Short v. Williams, 4 Dowl. 357 ; 
 Fogarty v. Smith, Id. 598, n. ; 5 & 6 V., 0. 22. 
 
 2 E. V. Jones, 2 Camp. 131, per Ld. Ellenhorough. See 12 & 13 V., 0. 89, 
 cited post, § 1106 ; and 31 & 32 V., 0. 37, cited post, § 1527. 
 
 3 Ld. Melville's case, 29 How. St. Tr. 706. 
 
 " E. V. Miller, 2 W. Bl. 797 ; 1 Lea. 74, S. C. * r, .„. QuUy, 1 Lea. 98. 
 
 « E. V. Forsyth, E. & E. 274 ; 31 & 32 V., 0. 37, §§ 2, 5, cited post, § 1527. 
 See R. u. Holt, 5 T. R. 436. The Irish case, R. v. Wallace, 17 Ir. Law E., 
 N. S. 206, can no longer be relied upon. ' Gr. Ev. § 5, in part. 
 
 8 Heathcote's Divorce, 1 Macq. Sc. Cas. H. of L. 277; R. v. Luffe, 8 
 East, 202. « See Bury v. Blogg, 12 Q. B. 877, 882. 
 
 1° However, in Collier v. Notes, 2 C. & Kir. 1012, Wilde, C. J., is reported 
 to have held that he could not judicially notice at what hour the sun set in 
 the month of November. See, also, Tutton v. Darke, 5 H. & N. 649, 650, 
 per Pollock, C. B. Sed qu. ? 
 
24 MATTERS JUDICIALLY NOTICED. [PAET I. 
 
 ordinary public fasts and festivals ;i nor the commencement or 
 ending of the legal sittings ; ^ nor the coincidence of the years of 
 the reign of any sovereign of this country vi^ith the years of our 
 Lord ; ^ nor the coincidence of days of the week with days of the 
 month ; * nor the order of the months ; ^ nor the meaning of the 
 word " month," which at common law and in equity* means four 
 weeks, but which in the ecclesiastical courts,''' and also when used, 
 either in mercantile transactions in the city of London,^ or in any 
 statute passed since the commencement of 1851,' or, in the Eules 
 of the Supreme Court,^° or in any judgment or order of that court,^^ 
 means a calendar month, unless words be added showing lunar 
 month to be intended ; nor the meaning of other words in the 
 vernacular language,^^ as, for instance, the word " distance," which, 
 
 ' 6 Vin. Abr. 492, pi. 8—44. ^ q yin. ^br. 490, pi. 32. 
 
 3 Holman v. Binrow, 2 Ld. Kay. 795 ; R. v. Pringle, 2 M. & Eob. 276. 
 
 * 6 Vin. Abr. 492, pi. 6, 7, 8 ; Hoyle v. Ld. Cornwallis, 1 Str. 387 ; Page 
 V. Faucet, Cro. El. 227 ; Harry v. Broad, 2 Salk. 626 ; Broiigh v. Parkings, 2 
 Ld. Eay. 994, per Ld. Holt. Tkus the Court is bound judicially to notice 
 what days of the month fall on Sundays, Hanson v. Shaokelton, 4 Dowl. 48 ; 
 Pearson v. Shaw, 7 Ir. Law R. 1. ^ R. v. Brown, M. & M. 164. 
 
 8 Cons. Ord. Ch. 1860, Ord. xxxvii., r. 10. 
 
 ' Bluck V. Rackman, 5 Moo. P. C. R. 308, per Knight-Bruce, V.-C. ; Man 
 V. Eioketts, 2 Coop. 21, per Ld. Lyndhurst ; Simpson v. Margitson, 11 Q". B. 
 23 ; Johnstone v. Hudleston, 4 B. & C. 932 ; per Bayley, J. 
 
 « Turner v. Barlow, 3 Post. & Fin. 946, per Erie, C. J. 
 
 » 13 & 14 v., c. 21, §§ 4, 8. 
 
 ^° Ord.lvii.R. i. "Where by these Rules, or by any judgment or order given or 
 made after the commencement of the Act, time for doing any act or taking any 
 proceedings is limited by months, not expressed to be lunar months, such time 
 shall be computed by calendar months." " Id. 
 
 '2 dementi v. Golding, 2 Camp. 25, as to the meaning of the word " book " ; 
 Com. V. Kneeland, 20 Pick. 229 ; 6 Vin. Abr. 491, 492, pi. 6, 7 ; R. v. 
 Woodward, 1 Moo. C. C. 323. In that case the prisoner was indicted under 
 7 i& 8 G. 4, c. 30, § 17, which made it a felony maliciously to burn any 
 stack of pulse, for setting fire to a stack of beam, and the judges unanimously 
 held that they were bound to notice that beans were a species of pulse. So 
 in R. V. Swatkins, 4 C. & P. 548, Patteson, J., after conferring with 
 Bosanquet, J., judicially noticed that larley was corn, in an indictment for 
 arson under the Act just mentioned. In R. v. Beaney, E. & R. 416, how- 
 ever, the judges refused to notice that a colt was an animal of the horse 
 species. There the indictment charged the prisoner with stealing two colts. 
 By the Act then in force, the benefit of clergy was taken away from peraons 
 stealing " horses, geldings, or mares " ; and as colts were not mentioned eo 
 nmnine, the prisoner was merely convicted of simple larceny. 
 
CHAP. 11.] MATTERS JUDICIALLY NOTICED. 25 
 
 except under special circums.tances, is measured as the crow flies ; ^ 
 nor the legal weights and measures ; ^ nor the positive value of the 
 coin of the reahn ; ^ nor its relative value at different periods of 
 time ; * nor, it seems, any matters of public history, affecting the 
 whole people.' «-^ /lOhCca,^-^ >y- 
 
 § 17.^ Courts also notice the territorial extent of the jurisdiction § 15 
 and sovereignty exercised de facto by their own government ; '^ and 
 
 > Mouflet V. Cole, 7 Law Eep., Ex. 70 ; 41 L. J., Ex. 28, S. C. ; and 8 Law Eep., 
 Ex. 32 ; 42 L. J., Ex. 8, S. C, per Ex. Ch. 
 
 ^'Hockin v. Cooke, 4 T. R. 314. 
 
 3 Glossop V. Jacob, 1 Stark. R. 69 ; Kearney v. King, 2 B. & Al. 301. 
 
 * Bryant v. Foot, 3 Law Eep., Q. B. 7 ; 37 L. J., Q. B. 217 ; 9 B. & S. 
 444, S. C. 5 ^Y of Augusta v. Earle, 13 Pet. 590. 
 
 ^ Gr. Ev. § 6, as to first seven lines, in great part. 
 
 ' See 6 & 7 v., o. 94, wMoh, — after reciting that " by treaty, capitulation, 
 grant, usage, sufferance, and other lawful means. Her Majesty bath, power 
 and jurisdiction within, divers countries and places out of Her Majesty's 
 dominions : and whereas doubts have arisen how far the exercise of such 
 power and jurisdiction is controlled by and dependent on the laws and 
 customs of this realm ; and it is expedient that such doubts should be 
 removed : " — enacts, that " it is and shall be lawful for Her Majesty to hold, 
 exercise, and enjoy any power or jurisdiction which Her Majesty now hath, 
 or may at any time hereafter have, witliin any country or place out of Her 
 Majesty's dominions, in the same and as ample a manner as if Her Majesty 
 had acquired such power or jurisdiction by the cession or conquest of 
 territory." 
 
 § 2 enacts, that " every act, matter, and thing which may at any time be 
 done, in pursuance of any such power or jurisdiction of Her Majesty, in any 
 country or place ou.t of Her Majesty's dominions, shall in all courts ecclesiastical 
 and temporal, and elsewhere within Her Majesty's dominions, be and be 
 deemed and adjudged to be, in all cases, and to all intents and purposes what- 
 soever, as valid and effectual as though the same had been done according to 
 the local law then in force within such country or place." 
 
 § 3 enacts, that " if in any suit or other proceedings, whether civil or 
 criminal, in any court ecclesiastical or temporal within Her Majesty's 
 dominions, any issue or question of law or of fact shall arise, for the due 
 determination whereof it shall, in the opinion of the judge or judges of such 
 court, be necessary to produce evidence of the existence of any such power 
 or jurisdiction as aforesaid, or of the extent thereof, it shaU be lawful for the 
 judge or judges of any such court, and he or they are hereby authorised to 
 transmit, under his or their hand and seal or hands and seals, to one of Her 
 Majesty's principal secretaries of state, questions, by him. or them properly 
 framed respecting such of the matters aforesaid as it may be necessary to 
 ascertain in order to the due determination of any such issue or question as 
 
26 MATTERS JUDICIALLY NOTICED. [PAET I. 
 
 the local divisions of their country, such as states,^ provinces/ 
 counties,^ counties of cities, cities,* towns, parishes, and the like, 
 so far as political government is concerned or affected ; but not the 
 relative positions of such local divisions, nor their precise boun- 
 daries, further than they may be described in public statutes.^ 
 Thus the courts refused to say judicially that "a part of the 
 coast called Suffolk " was not in Kent, or that " Orfordness, in the 
 county of Suffolk," was not situated between the North Foreland 
 and Beachy Head.* Neither will they notice that a particular place 
 is within a certain city ; "^ nor that a particular town is within a 
 certain diocese ; ^ nor that a street mentioned in the pleadings is a 
 public thoroughfare, though the word " street," via strata, would 
 rather imply that it was ; ' nor that a particular street is not in a 
 certain county, though it be notorious that a street bearing the 
 
 aforesaid ; and such secretary of state is hereby empowered and required, 
 within a reasonable time in that behalf, to cause proper and sufficient answers 
 to be returned to all such questions, and to be directed to the said judge or 
 judges, or their successors ; and such answers shall, upon production thereof, 
 be final and conclusive evidence, in such suit or other proceedings, of the several 
 matters therein contained and required to be ascertained thereby." 
 
 ' Whyte V. Rose, 4 P. & D. 199 ; 3 Q. B. 495, S. C. There the Court 
 noticed, that by " the Kingdom of Ireland " was meant that part of the 
 United Kingdom called Ireland. 2 Id. 
 
 3 Deybel's case, 4 B. & A. 242 ; 2 Inst. 557, where it is said, " the King's 
 Courts " " take notice of all the counties of England." In R. v. Isle of Ely, 
 15 Q. B. 827, the court judicially noticed that the Isle of Ely was a division of 
 a coimty in the nature of a riding, and, as such, primS, facie liable to repair 
 bridges within it. 80, also, in Harris v. O'Loghlen, 5 I. R. Eq. 514, 520, 
 the Irish M. R. took judicial notice of the baronies in an Irish county, such 
 baronies having been enumerated in 13 & 14 V., c. 68, Sch. A. 
 
 " R. V. St. Maurice, 16 Q. B. 908. 
 
 5 Deybel's case, 4 B. <& A. 242 ; 2 Inst. 557 ; Fazakerley v. Wiltshire, 1 
 Str. 469 ; R. v. Burridge, 3 P. Wms. 497 ; Thome v. Jackson, 3 Com. B. 
 661. 
 
 s Deybel's case, 4 B. & A. 243. See, also, Kirby v. Hickson, 1 L. M. & P. 
 364, where the Court of C. P. refused to take judicial notice that Park-street, 
 Grosvenor-square, in the county of Middlesex, was within twenty miles of 
 RusseU-square, in the same county. 
 
 ? Prune i'. Thompson, 2 Q. B. 789, in which case the plaintiff was non- 
 suited for not proving that the Tower of London was within the City of London. 
 
 " R. V. Simpson, 2 Ld. Ray. 1379. 
 
 5 Grant v. Moser, 5 M. & Gr. 129, per Tindal, C. J. 
 
CHAP. II.] MATTERS JUDICIALLY NOTICED. 27 
 
 same name is in another county ; ^ nor that a city mentioned in a 
 document is in a particular country, even though it appear that 
 one with a similar name is the capital of such country.^ They 
 have, however, noticed that the Queen's Prison is situated in 
 England.^ 
 
 § 18.* The courts will judicially recognise the political consti- § 16 
 tution or frame of their own government ; its essential political 
 agents or public officers sharing in its regular administration ; and 
 its essential and regular political operations and actions. Thus all 
 tribunals notice the accession and demise of the sovereign of their 
 country ; ° the heads of departments, and the principal officers of 
 state, whether past or present ; ^ the marshals and sheriffs, but 
 not the deputies of these functionaries ; '' the existence of a war 
 in which their country is engaged,, at least when such war is 
 recognised in public proclamations or Acts of Parliament ; ^ the 
 days of special public fasts and thanksgivings, when recognised in 
 like manner ; the stated days of general political elections ; the 
 date and place of the sittings of the legislature ; ^ and, in short, to 
 borrow the language of the court in Taylor v. Barclay, " all public 
 m:atters which affect the government of the country." ^^ But they 
 
 ' Humplireys v. Budd, 9 Dowl. 1000. See Thome v. Jackson, 3 Com. B. 661. 
 
 - Kearney v. King, 2 B. & A. 301. There the declaration was on a hill 
 drawn and accepted at Duhlin, to wit, at Westminster, for 54:21. The court 
 held that, upon this declaration, the bill must be taken to have been drawn 
 in England for English money, and therefore, that proof of a hill drawn 
 at Dublin in Ireland for Irish money, which is of less value, was a fatal 
 variance. ' 3 "Wickens v. Goatly, 11 Com. B. 666. 
 
 ^ Gr. Ev. § 6, in part. 
 
 s Hohnan v. Burrow, 2 Ld. Ray. 794 ; R. v. Pringle, 2 M. & Rob. 276. 
 
 " R. V. Jones, 2 Camp. 131 ; Bennett v. The State of Tennessee, Mart. & 
 Y. 133 ; Whaley v. Carlisle, 17 Ir. Law R., N. S. 792. In this last case, the 
 court, in 1866, judicially noticed that Ld. Hawkesbury had been foreign 
 minister in 1803. 7 See Grant v. Bagge, 3 Bast, 128. 
 
 8 Bolder v. Ld. Huntingfield, 11 Ves. 292 ; R. -o. De Berenger, 3 M. & Sel. 
 67. It seems that when war is neither publicly proclaimed, nor noticed in 
 any statute, the question of its existence is one solely for the jury, 1 Hale, 
 164 ; Eost. C. L., d. 1, c. 2, § 12 ; and the existence of war between foreign 
 countries will not be judicially noticed. Bolder v. Ld. Huntingfield, 11 Ves. 
 292, per Ld. Eldon. 
 
 s R. V. Wilde, 1 Lev. 396 ; 1 Doug. 97, n. 41 ; Birt v. Rothwell, 1 Ld. Ray. 
 210, 343. »» 2 Sim. 221. 
 
28 MATTEES JXIDICIALLY NOTICED. [PAKT I. 
 
 will not recognise private orders made at the council-table,^ for 
 these are matters of particular concernment ; nor, it seems, any 
 orders of Council, even though they regard the Crown and the 
 government ; ^ nor the transactions on the journals of either House 
 of Parliament.^ 
 
 § 19. Lastly, each division of the Supreme Court is bound § 17 
 judicially to notice its own rules and course of proceeding ; * 
 as well as the rules and practice of the other Divisions ; ^ 
 and also the limits of their respective jurisdictions,^ as, for 
 instance, that the Probate, Divorce, and Admiralty Division has so 
 far jurisdiction over the personal estate of an intestate British sub- 
 ject, whether situated in Ireland, the colonies, or any foreign country, 
 that it may grant letters to administer such property, and, indeed, 
 must do so before the administrator can sue in any English Court 
 in respect thereof.^ They will further notice the privileges of their 
 officers ^ and solicitors,^ which last term, — probably, as being more 
 euphonistic than " attorneys," — is now made by the legislature to 
 include those functionaries as well as the heretofore proctors of the 
 Ecclesiastical Courts.^" So all Courts will judicially notice the fact 
 that the assizes, though constituting for some purposes one legal 
 day, may be continued from day to day with or without adjournment, 
 and often occupy several natural days, ^^— the existence of Courts of 
 
 1 6 Vin. Abr. 490. 
 
 2 Att.-Geii. V. Theakstone, 8 Price, 89. See post, §§ 1527, 1664. 
 
 ^ E. V. Knollys, 1 Ld. Eay. 10, 15. Copies of the journals are now ad- 
 missible, if purporting to be printed by the official printers, 8 & 9 V., c. 113, 
 § 3, cited ante, § 7. 
 
 " Dobson V. Bell, 2 Lev. 176 ; Pugh v. Robinson, 1 T. E. 118. 
 
 * Lane's case, 2 Eep. 16 b. ; Worlich v. Massey, Cro. Jao. 67 ; Mounson 
 V. Bourn, Cro. Car. 526 ; Eeidy v. Pierce, 11 Ir. Law E., N. S. 374, per Pigot, 
 C. B. ; Caldwell v. Hunter, 10 Q. B. 85, 86. 
 
 8 Doe V. Caperton, 9 C. & P. 116. See Spooner -e. Juddow, 6 Moo. P. C. 
 E. 257. ? See Whyte v. Eose, 3 Q. B. 493, per Ex. Ch. 
 
 " Ogle V. Norcliffe, 2 Ld. Eay. 869. 
 
 » Stokes V. Mason, 9 East, 426 ; Chatland v. Thornley, 12 East, 544 ; 
 Hunter v. Neck, 3 M. & Gr. 181 ; 3 Scott, N. E. 448, S. C. ; Walford v. Fleet- 
 wood, 14 M. & W. 449. 
 
 " Supreme Court of Judicature Act, 1873, 36 & 37 V., c. 66, § 87. 
 
 " Whitaker v. Wisbey, 12 Com. B. 66, 59. 
 
CHAP, n.] MATTEBS JUDICIALLY NOTICED. 29 
 
 general jurisdiction,^ — the powers of the Ecclesiastical Courts, — and 
 the jurisdiction of the Court of Bankruptcy,^ together with all 
 general rules made hy the Lord Chancellor with the advice of the 
 chief judge in bankruptcy, either for regulating the practice and pro- 
 cedure of that court,^ or in relation to proceedings whether on the 
 occasion of liquidation by arrangement,* or on the occasion of the 
 acceptance of a composition by creditors.^ So the rules made under 
 " the Bankruptcy, Ireland, Amendment Act, 1872," must be judi- 
 cially noticed ; '' and the same law applies to the rules made by the 
 Board of Trade under the Gas and Water Works Facilities Act, 
 1873," — ^to those made by the Lord Chancellor with the assistance 
 of the Eegistrar, under the Land Transfer Act, 1875,^ — and to those 
 made under the Landlord and Tenant (Ireland) Act, 1870, either by 
 thecourt for Land Cases reserved, or by the Privy Council in Ireland. ' 
 
 § 20. It does not seem clear, whether or not the judges of the § 19 
 Supreme Court of Judicature are boundtonotice who are the judges 
 in inferior courts of record. The weight of American authorities 
 is in favour of recognising them ; ^° but the Court of Queen's Bench 
 not very long ago refused to notice who was judge of the then Court 
 of Review.-'^ With regard to inferior courts of limited jurisdiction, 
 the Supreme Court will not, unless when called upon to review their 
 judgments,-'^ take cognizance of the customs and proceedings 
 therein,^^ except so far as they are regulated by statute. ^"^ 
 
 ' Tregany v. Fletcher, 1 Ld. Ray. 154. 
 , 2 32 & 33 v., 0. 71, § 65. ^ § yg. 4 § 135^ r. 11. 
 
 ' § 126. « 35 & 36 v., c. 58, § 124, Jr. 
 
 ' 36 & 37 v., D. 89, § 14. » 38 & 39 V., c. 87, §, 111. 
 
 ' 33&34V.,c. 46, §§31, 41. 
 
 '" Hawks V. Kennebec, 7 Mass. 461 ; Ripley v. Warren, 2 Pick. 592 ; 
 Despan v. Swindler, 3 Mart. N. S. 705. 
 " Van Sandau v. Turner, 6 Q. B. 773, 786. 
 12 Chitty V. Dendy, 3 A. & E. 324; 4 N. & M. 842, S. C. 
 '3 R. V. U. of CamlDiidge, 2 Ld. Ray. 1334. In that case the court refused 
 to notice that the University Court in Cambridge proceeded according to the 
 rules of the civil law. See, also. Lane's case, 2 Rep. 16 b. n. d ; Peacock v. 
 Bell, 1 Wms. Saund. 75 ; and Dance v. Robson, M. & M. 295. 
 
 '■* As in the case of the Court of the V.-Ch. of Oxford, which, under the 
 Act of 17 & 18 v., c. 81, § 45, must now, in all matters of law, be governed 
 by the common and statute law, and not by the rules of the civil law. 
 
30 EEFEESI-IING MEMORY OP JUDGE. [PAET I. 
 
 § 21.1 Ijj all tiiese and the like cases, where the memory of the § 20 
 judge is at fault, he resorts to such documents or other means of 
 reference as may be at hand, and he may deem worthy of confi- 
 dence.^ Thus, if the point at issue he a date, the judge will refer 
 to an almanac ; ^ if it be the meaning of a word, to a dictionary ; * 
 if it be the construction of a statute, to the printed copy ; ^ or, in 
 case that appears to be incorrect, to the parliament roll." In some 
 instances, the judge has refused to take cognizance of a fact, unless 
 the party calling upon him to do so could produce at the trial some 
 document by which his memory might be refreshed ; as was the 
 case in Van Omeron v. Dowick,'' where Lord EUenborough declined 
 to take judicial notice of the King's proclamation, the counsel not 
 being prepared with a copy of the Gazette in which it was published. 
 So, also, in E. v. Withers, tried before Mr. Justice Buller, in which 
 case it became a material question to consider how far the prisoner 
 owed obedience to his sergeant, and this depended on the articles of 
 war, which were not produced at the trial, the judges thought that 
 they ought to have been produced.^ But in many other cases, the 
 courts have themselves made the necessary inquiries, and that, too, 
 without strictly confining their researches to the time of the trial. 
 Thus, to give but a few examples : in Taylor v. Barclay, where the 
 question was, whether the federal republic of Central America had 
 been recognised by the British Government as an independent state, 
 the Vice- Chancellor sought for information from the Foreign 
 Office ; ' in Chandler v. Grieves, the Court of Common Pleas 
 directed an inquiry to be made in the Court of Admiralty as to the 
 maritime law ; "^^ in Doe v. Lloyd, the same court caused an inquiry , 
 to be made by their officers, as to the practice of the Lirolment 
 
 1 Gr. Ev. § 6, as to first three lines. 2 q^^^\_ Ev. 295. 
 
 " Page v. Faucet, Cro. El. 227. See Tutton v. Darke, 5 H. & N. 649. 
 
 ■* Clementi ii. Golding, 2 Camp. 25. 
 
 ° Since the commencement of the year 1866, a copy of the Puhlic General 
 Acts has heen printed each year hy Messrs. Eyre and Spottiswoode, as printers 
 to the Queen, for the proprietors of the Law Journal, and has been published in 
 the thirty-fifth and succeeding volumes of that excellent work. 
 
 " R. V. Jefl"ries, 1 Str. 446 ; Spring v. Eve, 2 Mod. 240. ? 2 Camp. 44. 
 
 8 Cited by Buller, J., in R. v. Holt, 5 T. E. 446. 
 
 » 2 Sim. 221. See also The Charkieh, 42 L. J. Adm. 17. 
 
 '" 2 H. Bl. 606, n. a. 
 
CHAP. II.] REFRESHING MEMOEY OF JUDGE. 31 
 
 Office in the Court of Chancery ; ^ and in Willoughby v. Willoughby, 
 Lord Hardwicke himself asked an eminent conyeyancer respecting 
 the existence of a general rule of practice in that branch of the 
 profession.^ 
 
 ' 1 M. & Gr. 685. The court in that case acted on the anthority of 
 Worsley «. Filisker, 2 Eoll. R. 119. 
 
 2 1 T. "R. 772. See, also, 15 & 16 V., c. 80, §§ 40, 41 ; and Cons. Ord. Ch. 
 1860, Ord. ii. * 
 
32 EESPECTIVE DUTIES OF JUDGE AND JUEY. [PART I. 
 
 CHAPTEK III. 
 
 THE FUNCTIONS OF THE JUDGE AS DISTINGUISHED FROM THOSE 
 
 OF THE JUEY. 
 
 § 22. With respect to trial by jury,^ Lord Hardwicke has § 21 
 observed, and all reflecting men will agree in the observation, 
 that " it is of the greatest importance to the law of England, and 
 to the subject, that the powers of the judge and jury be kept 
 distinct ;" ^ yet important as this object undoubtedly is, it is one 
 which, even at the present day, is not very perfectly effected. The 
 general principle, that the judge must determine the law, and the 
 jury the fact, is not, and cannot be disputed ; ^ but in the applica- 
 
 1 The merits and demerits of trial by jury are fairly set forth in the 2nd 
 report of the Common Law Commiss., pp. 3 — 6. The right to demand 
 such a trial is carefully preserved to suitors "by § 22 of the Sup. Ct. of Judic. 
 Act, 1875, 38 & 39 V., c. 77. See, however. Rules of Sup. Ct., Qrd. xxxvi., 
 rr. ii., iii., xxvi., x.xvii ; Back v. Hay, L. R., 5 Ch. D. 235 ; Pilley v. Baylis, id., 241 ; 
 Swindell v. Birmingham Syndicate, L. R., 3 Ch. D. 127 ; Clarke v. Cookson, 
 L. R., 2 Ch. D. 746 ; Sugg v. Silber, L. R., 1 Q. B. D. 362 ; 45 L. J., Q. B. 
 460, S. C. See also the Common Law Prooed. Act of 1854, 17 & 18 V., 
 c. 125, § 1, which gives a limited power to suitors, hy consent in writing, 
 to dispense with the jury, and to leave the decision of issues of fact to the 
 judge, provided the court think fit to allow such trial. The Irish Common 
 Law Proced. Amend. Act, 19 & 20 V., c. 102, § 4, and the Scotch Ct. of 
 Session Act, of 1850, 13 & 14 V., c. 36, §§ 46—48, respectively contaia sioailar 
 provisions. 
 
 " R. V. Poole, Cas. temp. Hard. 28. 
 
 " In R. V. The Dean of St. Asaph, Ld. Mansfield declared, " that the fun- 
 damental definition of trial by jury depended upon the universal maxim, ad 
 qurestionem juris non respondent juratores ; ad qutestionem faoti non respon- 
 dent judices ; " and his lordship added — " Where a question can be proved 
 by the form of pleading, the distinction is preseiwed upon the face of the 
 record, and the jury cannot encroach upon the jurisdiction of the court ; 
 when, by the form of pleading, the two questions are blended together, and 
 cannot be separated upon the face of the record, the distinction is preserved 
 by the honesty of the jury. The constitution trusts that, under the direc- 
 tion of a judge, they will not usurp a jurisdiction which is not in their 
 province. They do not know, and are not presumed to know, the law : 
 they are not sworn to decide the law ; they are not required to decide the 
 
CHAP. III.J DUTIES OF JUDGE. 33 
 
 tion of this principle at Nisi Prius, embarrassing questions not 
 unfrequently arise, from the experienced difficulty of defining with 
 
 law .... It is tlie duty of the judge, in all cases of general justice, 
 to tell the jury how to do right, though they have it in their power to do 
 wrong, which is a matter entirely between God and their own consciences." 
 21 How. St. Tr. 1039, 1040. So, in an elaborate essay on this subject, 
 published by Mr. Hargrave, as a note to 1 Co. Litt. 155 b., the learned 
 author states the result to be, " that the immediate and direct right of deciding 
 upon questions of law is intrusted to the judges ; that in a jury it is only 
 incidental; that in the exercise of this incidental right, the latter are not 
 only placed under the superintendence of the former, but are in some degree 
 controllable by them ; and, therefore, that in all points of law arising on a 
 trial, juries ought to show the most respectful deference to the advice and 
 recommendation of judges.'' In America, the same principles have been 
 expounded, in forcible language, by Mr. Justice Story. "The learned counsel for 
 the prisoner," said he, " contends that in criminal cases, and especially in capital 
 cases, the jury are the judges of the law, as well as of the fiict. My opinion is, that 
 the jury are no more judges of the law in a capital or other criminal case, upon 
 the plea of not guilty, than they are in every civil case, tried upon the general issue. 
 In each of these cases, their verdict, when general, is necessarily compounded of 
 law and of fact, and includes both. In each, they must necessarily determine 
 the law, as well as the fact. In each, they have the physical power to 
 disregard the law, as laid down to them by the Court. But I deny that, in 
 any case, civil or criminal, they have the moral right to decide the law accord- 
 ing to their own notions or pleasure. On the contrary, I hold it the most 
 sacred constitutional right of every party accused of a crime, that the jury 
 should respond as to the facts, and the Court as to the law. It is the duty of 
 the Court to instruct the jury as to the law ; and it is the duty of the jury to 
 follow the law, as it is laid down by the Court. This is the right of every 
 citizen, and it is his only protection. If the jury were at liberty to settle the 
 law for themselves, the effect would be, not only that the law itself would be 
 most uncertain, from the different views which different juries might take of it, 
 but in case of error, there would be no remedy or redress by the injured party ; 
 for the Court would not have any right to review the law, as it had been settled 
 by the jury. Indeed, it would be almost impracticable to ascertain what the 
 law, as settled by the jury, actually was. On the contrary, if the Court 
 should err in laying down the law to the jury, there is an adequate remedy 
 for the injured party by a motion for a new trial, or a writ of error, as the 
 nature of the jurisdiction of the particular court may require. Every person 
 accused as a criminal has a right to be tried according to the law of the land, 
 the fixed law of the land ; and not by the law as a jury may understand it, 
 or choose, from wantonness, or ignorance, or accidental mistake, to interpret 
 it. If I thought that a jury were the proper judges of the law in criminal 
 cases, I should hold it my duty to abstain from the responsibility of stating 
 the law to them upon any such trial. But believing, as I do, that every 
 citizen has a right to be tried by the law, and according to the law, — that it 
 is his privilege and truest shield against oppression and wrong, — I feel it my 
 
34 DUTIES OP JUDGE. JPART I. 
 
 clearness the obscure aucl shifting boundaries of law and fact. In 
 the present chapter it is proposed briefly to discuss this subject, 
 and to lay down such general rules as may practically be of use in 
 distinguishing the relative duties of judges and jurors. 
 
 § 23. The duty of a judge presiding at a trial by jury is three- § 22 
 fold : — First, he must decide all questions respecting the admissi- 
 bility of evidence ; secondly, he must instruct the jury in the rules 
 of law, by which the evidence, when admitted, is to be weighed ; 
 and lastly, he must explain to them and enforce those general 
 principles of law, that are applicable to the point at issue.^ In 
 discharging the first duty, it frequently happens that the admissi- 
 bility of a witness or an instrument is found to depend on a dis- 
 puted fact, in which case all the evidence adduced both to prove 
 and disprove that fact must be received by the judge, and adjudi- 
 cated on by him alone? Thus, for example, — if the question be 
 whether a confession should be excluded on account of some previous 
 threat or promise, the judge must decide, first, whether the threat 
 or promise was really made ; and, secondly, whether, if made, it 
 was sufficient in law to warrant the exclusion of the evidence.' So, 
 if a dying declaration be tendered in evidence, and its adm'issibility 
 rest upon the fact that the deceased believed, when he made 
 it, that he was on the point of death, the question whether this 
 fact be satisfactorily proved must be determined by the judge.* So, 
 where the receipt in evidence of a deposition depends on the 
 
 duty to state my views fully and openly on the present occasion." U. S. v. 
 Battiste, 2 Sumn. 243. See further, on this interesting subject, 2 Wynne's 
 Eunomus ; Bushell's case, 6 How. St. Tr. 999, 1008, 1013, 1014 ; Vaugh. 135, 
 S. C. FrancMin's case, 17 How. St. Tr. 625 ; and R. v. Woodfall, 5 Burr. 2661. 
 
 ' Among the questions propounded by the Irish Parliament to the judges 
 of that country in 1641, was one, " whether the judge or jurors ought to be 
 judge of the matters of fact," to which the judges replied, that, " although 
 the jurors be the sole judges of matter of fact, yet the judges of the court are 
 judges of the validity of the evidence, and of the matters of law arising out 
 of the same, wherein the jury ought to be guided by them." 2 Nalson's Coll. 
 of State Pap. 575, 582, Lond. 1683. 
 
 2 Bartlett v. Smith, 11 M. & W. 486. 3 See 1 Stark. R. 523, n. h. 
 
 * So resolved by all the judges, in two cases cited by Parke, B., in Bartlett 
 V. Smith, 11 M. & W. 486 ; and in one case cited by Ld. EUenborough, in R. u. 
 Hucks, 1 Stark. R. 523. These cases virtually overrule R. v. Woodcock, 1 
 l.e.i. 504, where the question was left to the jury by Eyre, C. B. 
 
CHAP. III.] DUTIES OF JUDGE. 35 
 
 inability of the deponent to attend the trial, the sickness of the 
 witness or other' special cause disabling him from attendance must 
 be proved to the satisfaction of the judge. ■^ So, the judge alone 
 must decide, whether the declarant in a question of pedigree has 
 been proved to be a deceased member of the family ; and it makes no 
 difference in applying this rule, that the relationship of the declarant 
 happens to be the very question at issue in the cause. ^ So, if proof 
 be offered of the signature of an attesting witness, and the admis- 
 sibility of this evidence turns on the fact, whether or not the 
 witness has absented himself from the trial by collusion with the 
 opposite party, the judge must decide on the existence of this fact.^ 
 In like manner, if the question be whether a document has been 
 duly executed, or stamped ; * or whether it comes from the right 
 custody ; ^ or whether sufficient search has been made for it to admit 
 secondary evidence of its contents ; ^ or whether notice to produce 
 it has been duly served ; '' or whether, in the event of its being pro- 
 duced under notice, it be the original paper required ; ^ or whether 
 it is protected as being a confidential communication ; * or if a 
 witness be objected to on the groimd of unripeness or imbecility of 
 mind ; — in all these and the like cases the preliminary question of 
 admissibility must, in the first instance, be exclusively decided by 
 the judge, however complicated the circumstances may be, and 
 though it may be necessary to weigh the conflicting testimony of 
 numerous witnesses, in order to arrive at a just conclusion. 
 
 § 24. So, where evidence is offered of acts done in places other § 22 
 
 ' D. of Beaufort v. Crawshay, 1 Law Eep., C. P. 699 ; 35 L. J., C. P. 342, 
 & 1 H. & E. 638, S. C. 
 
 ^ Doe V. Davies, 10 Q. B. 314. See Hitohms v. Eardley, 2 Law Eep., P. 
 & D. 248 ; 40 L. J., Pr. & Mat. 70, S. C. 
 
 ' Bgan V. Larkin, 1 Arm., M., & 0. 403, per Brady, C. B. 
 
 •" Bartlett v. Smitli, 11 M. & W. 483 ; Dunsford v. Curlewis, 1 Fost. & Fin. 
 702, per Hill, J. See Stowe v. Quemer, 5 Law Eep., Ex. 155 ; 39 L. J., 
 Ex. 60, S. C. 
 
 * Bp. of Meath v. M. of "Wmchester, 3 Bing. N. C, 198 ; Doe v. Keeling, 
 11 Q. B. 889, per Ld. Denman. « 11 M. & W. 486, per Alderson, B. 
 
 7 Harvey v. Mitchell, 2 M. & Eob. 366, per Parke, B. 
 
 8 Froude v. Hobbs, 1 Fost. & Fin. 612, per Byles, J. ; Boyle v. Wiseman, 
 11 Ex. E. 360 ; overruling Jones v. Fort, M. & M. 196. 
 
 s Cleave v. Jones, 7 Ex. E. 421. 
 
 D -2, 
 
36 DUTIES OF JUDGE. [PAET I. 
 
 than the place in dispute, it is for the judge to decide, in the first 
 instance, whether there is such a unity of character in these 
 different localities as to render evidence affecting the one admissible 
 with reference to the other, and he will be further called upon to 
 pronounce whether the acts relied on amount to evidence of owner- 
 ship.-' Where witnesses were called to prove a general usage in 
 trade, the judge, thinking that their testimony amounted to no 
 more than evidence of opinion, withdrew it from the consideration 
 of the jury, and the Court supported his ruling.^ It was then laid 
 down, as a distinct principle, that where the evidence was by law 
 admissible for the determination of the point raised, the judge was 
 bound to lay it before the jury ; but whether the evidence was ad- 
 missible or not, was a matter for the decision of the judge alone. 
 In all these cases, however, after the evidence has been finally 
 admitted, its credibility and weight are entirely questions for the 
 jury, who are at liberty to consider all the circumstances of the 
 case, including those already proved before the judge, and to give 
 the evidence only such credit as, upon the whole, they may think it 
 deserves.^ The judge merely decides whether there is, prima facie, 
 any reason for presenting it at all to the jury ; and his decision on 
 this point, if erroneous, may be reviewed by the Com-t above.* 
 
 § 25. Secondly, it is the duty of the judge to point out to the § 23 
 jury any rule of law, which either renders evidence unnecessary, or 
 gives peculiar weight to any particular species of evidence, or defines 
 the manner in which a certain fact must be proved. Thus, he 
 should distinctly explain the nature of any presumptions, which 
 may apply to the point at issue, distinguishing such as are con- 
 clusive from those which are liable to be rebutted by counter 
 evidence ; and again, dividing this latter class into those presump- 
 tions upon which the jury are bound to act, in the absence of con- 
 flicting testimony, and those upon which it is expedient, or 
 allowable, to rely. So, if by the common or statute law any docu- 
 
 ' Doe V. Kemp, 7 Bing. 336, per Bosanquet, J. 
 2 Lewis V. Marshall, 7 M. & Gr. 743, 744. 
 
 2 Welstead v. Levy, 1 M. & Rob. 139, per Parte, J. ; Doe v. Davies, 10 Q, B. 
 324, per Ld. Denman ; Ross v. Gould, 3 Greenl. 204. 
 ■• Cleave v. Jones, 7 Ex. R. 421. 
 
CHAP. III.] DUTIES OF JUDGE. 37 
 
 ment, when proTed, becomes conclusive evidence of the facts stated 
 
 therein, it is the province of the judge to point out to the jury that 
 
 the existence of such facts cannot be disputed or denied, and that 
 
 the only question for their deliberation is, whether or not the 
 
 document be duly proved. So, if the uncorroborated testimony of 
 
 a single witness be insufficient by law to establish guilt, as, for 
 
 instance, in charges of treason or perjury, the judge must acquaint 
 
 the jury with the nature and extent of this rule ; and even where a 
 
 conviction founded upon such testimony would be strictly legal, as 
 
 in the case of an accomplice becoming witness for the Crown, the 
 
 judge would not properly discharge his duty, if he did not warn the 
 
 jury against the danger of placing implicit reliance upon statements 
 
 coming from such a suspicious quarter. Many judges, indeed, and 
 
 those of the greatest ability, have not confined their observations 
 
 within these limits, but have boldly given their opinions respecting 
 
 the matters of fact ; and although this mode of proceeding, when 
 
 adopted, as it sometimes has been, in a supercilious spirit, may 
 
 arouse the jealous feelings of a jury, and may excite them, in their 
 
 anxiety to prove their independence, to pronounce an unjust verdict ; ^ 
 
 yet it may well be doubted whether, in the great majority of instances, 
 
 it would not promote the real interests of justice, if the judge were 
 
 temperately to state to the jury what opinions he had formed 
 
 respecting the merits of the case, and the mode by which he had 
 
 arrived at his conclusions. The jury would still have the undisputed 
 
 power of deciding the question as they thought fit ; but they would 
 
 have the advantage of being advised by a man no more liable than 
 
 themselves to prejudice or partiality, whose long experie/ice in 
 
 courts of justice must of necessity have rendered him. far raore 
 
 competent than they can be to unravel the tangled threads of 
 
 conflicting testimony. The too common mode of summing up, — 
 
 " Gentlemen, if you think so and so, you will find for the plaintiff, 
 
 if you think otherwise, you will find for the defendant ; gentlemen, 
 
 the question is for you," — though sanctioned by the practice of 
 
 ' " Few things incite me more to repel a doctrine than intolerant attempts 
 to force it on my understanding." See Dr. Channing's Works, vol. ui., p. 319. 
 Ld. Bacon, in Ms advice to Hutton, J., says, " You should be a light to jurors 
 to open their eyes, hut not a guide to lead them by their noses." Bac. Works, 
 vol. vii. p. 271, ed. Montagu. 
 
38 DUTIES OF JUDGE. [PAET I. 
 
 many able, but somewhat lazy judges, and though possibly in 
 accordance with the strict theory of a trial by jury, is but little cal- 
 culated to promote the attainment of truth ; and in complicated 
 cases before a petty jury, is almost tantamount, if not to a direct 
 denial of justice, at least to a decision of the issue by lot. 
 
 § 26. Lastly, the judge must explain to the jury what principles § 24 
 of law are applicable to the point in issue, and in order to enable 
 him to do so correctly, he must distinguish questions of law from 
 questions of fact. This, in ordinary cases, is no difficult task. 
 Thus, for instance, on a charge of larceny, the judge lays down, as 
 a general proposition of law, that all persons who take and remove 
 the personal chattels of another without his consent, and with a 
 felonious intent, are guilty of that crime ; and then, according to 
 the circumstances of the case, he explains, with more or less par- 
 ticularity, what constitutes a taking, removing, &c. These, ob- 
 viously, are questions of law, and together form the major premiss 
 of the syllogism. The jury next decide whether the evidence 
 proves that the goods have been taken and removed in such a 
 manner, and with such an intent, as the judge has previously shown 
 will amount to larceny. These are questions of fact, and together 
 form the minor premiss. Lastly comes the conclusion of gniilt or 
 innocence, which may either be drawn by the jury applying to the 
 facts which they find, the rules of law as interpreted by the judge ; 
 or, in the event of their considering this task too difficult for them, 
 they are at liberty to find the facts specially, but not the mere evi- 
 dence on which the facts are founded,^ leaving the Court to apply 
 the law to such facts, and consequently to pronounce the final 
 decision. But, simple as this process appears to be, the line between 
 law and fact has been very indistinctly drawn in a certain class of 
 cases, and in these cases, therefore, the respective duties of the 
 judge and jury are not yet clearly defined. For instance, if the 
 question be whether a certain party had probable cause for doing an 
 act, or whether he has done an act within a reasonable time, or with 
 
 ^ 1 Hubbard -u. Johnstone, 3 Taunt. 209, per Wood, B. ; Hai-wood v. Good- 
 right, 1 Cowp. 91, 92, per Ld. Mansfield ; Mires v. Solebay, 2 Mod. 244, 245 ; 
 1 St, Ev. 511, 512. 
 
CHAP. III.] MKED CASES PROBABLE CAUSE. 39 
 
 due diligence, it is difficult to say whether the definition of what 
 constitutes probable cause, reasonable time, or due diligence, be for 
 the judge or the jury, and specious arguments will not be wanting 
 in favour of the claims of either pai-ty. On the one hand, it may 
 be said, that these terms are as capable of judicial interpretation, 
 as the words conversion, or asportation, which must clearly be ex- 
 plained by the judge ; while, on the other hand, it may be urged, 
 that they seem rather addressed to the practical experience of 
 practical men, than to the legal knowledge of the mere lawyer ; 
 that, being terms of degree, their meaning is subject to indefinite 
 fluctuation, according to the varying circumstances of each particu- 
 lar case, and that consequently they defy all attempts to compress 
 them within exact a priori definitions. In truth, they are neither 
 matters of fact, nor matters of law, exclusively, but are rather 
 matters of quality or opinion, which, for want of a more appro- 
 priate name, have been generally termed " mixed cases." They 
 form in logical phrase, the middle term, and are alike common to 
 both the premisses, which are respectively intrusted to the judge 
 and jury, and upon which the ultimate decision must proceed.^ 
 
 § 27. Having said thus much respecting the general nature of § 25 
 this class of cases, it remains to be seen what decisions have been 
 reported on the subject ; and although some of these will be found 
 to rest rather on arbitrary authority than on any definite principle 
 of law, it is hoped that their collection and partial classification 
 may be of some service, the more especially as precedents have 
 ever been considered in this country as deservedly entitled to 
 respect. 
 
 § 28. First : It is now clearly established, — albeit the wisdom of § 26 
 the rule has been stoutly disputed,^ — that the question of probable 
 cause must be decided exclusively by the judge, and that the jury 
 can only be permitted to find whether the facts alleged in support 
 of the presence or absence of probability, and the inferences to be 
 
 See, on this diffleult subject, 12 Law Mag. 53—74 ; 1 St. Ev. 512—526. 
 Lister v. Ferryman, 4 Law Eep., H. L. 521 ; 39 L. J., Ex. 177, S. 0. 
 
40 PEOBABLE CAUSE. [PAET I. 
 
 drawn therefrom, really exist. ^ For instance, in an action for a 
 malicious prosecution, the jury, provided the evidence on the subject 
 be conflicting, may be asked whether or not the defendant, at the 
 time when he prosecuted, knew of the existence of those circum- 
 stances which tend to show probable cause, or believed that they 
 amounted to the offence which he charged ; and if they negative 
 either of these facts, the judge will decide as a point of law, that 
 the defendant had no probable cause for instituting the prosecution.^ 
 This rule, — which is based on the assumption that judges are far 
 more competent than juries to determine the question how far it 
 may have been proper for a person to have instituted a prosecution,^ 
 — is equally binding, however numerous and complicated the facts 
 and inferences may be ; * for, although in some cases it would 
 doubtless be attended with great difficulty to bring before the jury 
 all the combinations of which numerous facts are susceptible, and 
 to place in a distinct point of view the application of the rule of 
 law, according as all, or some only of the facts and inferences from 
 facts are made out to their satisfaction, yet the task is not im- 
 practicable ; and it would obviously savour of gross inconsistency 
 
 ' Miohell ?).• Williams, 11 M. & W. 205 ; Pantoa v. Williams, 2 Q. B. 169 ; 
 1 G. & D. 504, S. C. ; Hailes v. Marks, 30 L. J., Ex. 389 ; 7 H. & N. 56, S. C; 
 Sutton V. Jolmstone, 1 T. E. 493, 510, 544, 545, 547, 784 ; 1 Br. P. C. 76, 
 2nd ed., S. C, in Dom. Proc. ; Mitchell ■;;. Jenkins, 5 B. & Ad. 594^596 ; 
 Hinton v. Heather, 14 M. & W. 134, per Alderson, B. ; West v. Baxendale, 
 9 Com. B. 141. 
 
 2 Turner v. Ambler, 10 Q. B. 252. The absence, however, of belief must 
 be proved by the plaintiff, and cannot be inferred from the mere fact that the 
 defendant had made use of the charge for an unfair purpose, id. See, also. 
 Broad v. Ham, 5 Bing. N. C. 722 ; Haddrick v. Heslop, 12 Q. B. 274—277 ; 
 Heslop V. Chapman, 23 L. J., Q. B. 49. 
 
 3 Fraser v. Hill, 1 Macq. Sc. Gas. H. of L. 398, per Ld. Cranworth. 
 
 _^ In Panton ■;;. Williams, 2 Q. B. 192, Tindal, C. J., observes, " Upon this 
 bill of exceptions we take the broad question between the parties to be this : 
 whether, in a case in which the question of reasonable or probable cause 
 depends, not upon a few simple facts, but upon facts which aie numerous and 
 complicated, and upon inferences to be drawn therefrom, it is the duty of the 
 judge to inform the jury, tliat if they find the facts proved, and the inferences 
 to be warranted by such facts, the same do or do not amount to reasonable or 
 probable cause, so as thereby to leave the question of fact to the jiiry, and the 
 abstract question of law to the judge. And we are all of opinion that it is the 
 duty of the judge so to do." See Rowlands v. Samuel, 1 1 Q. B. 41, n. : Douglas 
 V. Corbett, 6 E. & B. 514. 
 
CHAP, in.] REASONABLE BELIEF. 41 
 
 to hold that a rule, which is undisputed in a simple case, should 
 not equally apply where the facts were complicated.^ For where 
 could the line be drawn, and who should determme what degree of 
 complexity would transfer the burthen of decision from the judge • 
 to the jury ? The difficulty, too, is more apparent than real, for it 
 rarely happens but that some leading facts exist in each case, which 
 present a broad distinction to the view, without having recourse to 
 the less important circumstances : ^ and as the judge has a right to 
 act upon all the uncontradicted facts, it is only where some doubt 
 is thrown upon the credibility of the witnesses, or where some con- 
 tradiction occurs, or some inference is attempted to be drawn from 
 some former fact not distinctly sworn to, that he is called upon to 
 submit any question to the jury.^ 
 
 § 29. Although the rule is as above stated, where in an action § 27 
 on the case for malicious prosecution the question of probable 
 cause arises, it has been held, both in England and Ireland, that 
 in an action of trespass, the reasonableness of the belief or suspicion, 
 upon which a party acts in causing an arrest or in detaining 
 goods, is a question which the jury may be called upon to decide.* 
 Thus, if a magistrate, on being sued for false imprisonment, were 
 to rely, under not guilty by statute, upon want of notice of action 
 or the like, the question whether he believed, with some colour 
 of reason, and bond fide, that he was acting in pursuance of his 
 lawful authority, so as to entitle him to the protection of the 
 statute, would, in strictness, be for the jury to determine under 
 all the circumstances, if the plaintiff should desire their opinion 
 to be taken on the evidence ; though if, as is commonly the case, 
 these questions were first submitted to the judge on an application 
 for a nonsuit, and the plaintiff did not then desire them to be left 
 
 ' Panton v. Williams, 2 Q. B. 194, 195, per Tindal, C. J., pronouncing the 
 judgment of the Ex. Ch. 
 
 2 Id. 
 
 3 Michell V. Wniiams, 11 M. & W. 216, 217, perAlderson, B. 
 
 * Wedge V. Berkeley, 6 A. & E. 663 ; 1 N. & P. 665, S. C. ; Annett v. 
 Osborne, 2 Jebb & Sy. 376 ; Hazeldine v. Grove, 3 Q. B. 997 ; 3 G. & D. 
 210, S. C. ; Hughes v. Buckland, 15 M. & W. 346. 
 
42 REASON ABLE TIME. [PART I. 
 
 to the jury, he would be bound by the decision of the judge, if the 
 Court should think it warranted by the evidence.^ 
 
 § 30. The question of reasonable time is open to more doubt § 28 
 than that of probable cause. With respect to some subjects, 
 indeed, which from their frequent recurrence admit of the 
 adoption of precise rules as to what constitutes reasonable time, 
 the Courts, for the sake of commercial convenience, have laid 
 dovm such rules ; and in these cases the duty of the jury is clearly 
 confined to the simple, task of ascertaining whether the facts 
 proved fall within the rules or not. Thus, notice of dishonour 
 of a bill of exchange must be given within a reasonable time, and 
 this has been held by the judges ^ to mean, — according as the 
 parties live in the same or in different places, — either that the 
 letter containing notice should be so posted that in the due course 
 of delivery it would arrive on the day following that on which the 
 writer has received intelligence of dishonour ; ^ or that such letter 
 should be posted before the departure of the mail on the day 
 following the receipt of intelligence ; * or if there be rio post on 
 that day,^ or if it start at an unseasonable hour in the morning,* 
 then the writer shall have an additional day. If, too, the bill be 
 presented through a banker, one day more is allowed for giving 
 notice of dishonour than if it were presented by the party 
 himself.'' At one time a doubt seems to have been entertained 
 whether, in the event of there being several indorsers to a bill, 
 the holder would have a separate day allowed him for giving 
 
 1 Hazeldine v. Grove, 3 Q. B. 997, 1007 ; 3 G. & D. 210, S. C. See post, 
 § 38. 
 
 2 See HirscMeld v. Smith, 1 H. & E. 284, 288, per Erie, C. J. 
 
 ^ Stooken v. Collin, 7 M. & W. 515 ; Smith v. Mullett, 2 Camp. 208, per 
 Ld. EUenboTough ; Hilton v. Fairclough, id. 633, per Lawrence, J. ; Rowe v. 
 Tipper, 13 Com. B. 256, per Maule, J. 
 
 ■• Williams v. Smith, 2 B. & A. 496. See Shelton v. Braithwaite, 7 M. 
 & W. 436. 
 
 5 GeiU V. Jeremy, M. & M. 61, per Ld. Tenterden. 
 
 « Hawkes v. Salter, 4 Bing. 715 ; 1 M. & P. 750, S. C; Bray v. Hadwen, 
 5 M. & SeL 68 ; Wright v. Shawoross, 2 B. & A. 501, n. 
 
 7 Alexander v. Buichfleld, 7 M. & Gr. 1066, 1067, per Tindal, C. J.; Haynes 
 V. Birks, 3 B. & P. 599 ; Scott v. Lifford, 9 East, 347 ; 2 Camp. 246, S. C. ; 
 Langdale v. Trimmer, 15 East, 291. 
 
CHAP. III.] EEASONABLE TIME. 43 
 
 notice to each ; but it is now expressly decided that he has in 
 general but one day to give notice to all the parties against whom 
 he intends to enforce his remedy, though each of the indorsers in 
 turn has his day,^ and though the holder may avail himself of a 
 notice duly given by any other party to the bill.^ Again, the 
 holder of a cheque, or of a bill or note payable on demand, must 
 present the instrument for payment on or before the day follow- 
 ing that on which it was received ; for the judges have put this 
 construction upon the term " reasonable time " within which the 
 instrument must be presented.^ 
 
 § 31. This last rule applies, not only as between the parties to a § 28 
 cheque,* but as between banker and customer, unless circumstances 
 exist from which a contract or duty on the part of the banker to 
 present at an earlier, or to defer presentation to a later period, can 
 be inferred.' But the rule does not apply to cases where the action 
 is brought by the holder of a banker's cheque against the drawer, 
 unless during the delay the fund has been lost, as by the failure of 
 the banker.^ When the rule is applicable, it matters not, so far as 
 the liability of the drawer is concerned, whether the instrument be 
 presented for payment by the party himself or by his banker ; and, 
 therefore, when an uncrossed cheque, given to a gentleman on the 
 10th of March, was paid into his bankers' on the 11th, and was 
 presented by them on the 12th to the bankers on whom it was drawn, 
 and who had stopped payment early in the morning, the Court held 
 
 1 Eowe V. Tipper, 13 Com. B. 249 ; Dobree v. Eastwood, 3 C. & P. 250. 
 See, however, Gladwell v. Turner, 39 L. J., Ex. 31 ; 5 Law Hep., Ex. 
 59, S. 0. 
 
 2 Chapman v. Keane, 3 A. & E. 193 ; 4 N. & M. 607, S. C. ; Eowe v. 
 Tipper, 13 Com. B. 256, per Jervis, C. J. 
 
 3 EicMord v. Eidge, 2 Camp. 539 ; Boddington v. Sohlencker, 4 B. & Ad. 
 752 ; Moule v. Brown, 4 Bing. N. C. 266. See Bailey v. Bodenham, 16 Com. 
 B., N. S. 288 ; 33 L. J., C. P. 252, S. C. 
 
 ■•■ See Hopkins v. "Ware, 4 Law Eep., Ex. 268. 
 
 6 Hare v. Henty, 30 L. J., C. P. 302 ; 10 Com. B., N. S. 65, S. C. See 
 Prideaux v. Criddle, 4 Law Eep., Q. B. 455 ; 38 L. J., Q. B. 232 ; 10 B. & S. 
 515, S. C. 
 
 ^ Eobinson v. Hawksford, 9 Q. B. 52 ; Serle v. Norton, 2 M. & Eob. 401, 
 per Ld. Abinger, 404, n. a ; Laws v. Eand, 27 L. J., C. P. 76 ; 3 Com. B., 
 N. S. 442, S. C. Here no time less than six years is deemed unreasonable. 
 
44 EEASONABLE HOURS. [PAET I. 
 
 that the payee could not recover the amount of the cheque from 
 the drawer, as the presentment for payment had not been made 
 within a reasonable time, and the bankers at the time of their 
 failure had sufBoient funds of the drawer's to pay the cheque.^ 
 Had the payee in this case stipulated that his bankers' names 
 should be crossed upon the cheque, or had the drawer discounted 
 his cheque in the country, the result would have been otherwise, for 
 the drawer would then have been considered as agreeing to the 
 arrangement that the necessary course of presentment through a 
 banker should be observed, and the steps actually taken were clearly 
 in conformity with such course.^ 
 
 § 32. The judges have also, with respect to the presentment of § 29 
 bills for payment, taken upon themselves to decide, as a question 
 of law, what constitutes reasonable hours, and have held that if 
 an instrument be payable at a banker's, it must be presented 
 within banking hours ; ^ if elsewhere, at any time when the drawer 
 may be expected to be found at his place of residence or business, 
 though it be as late as eight or nine o'clock in the evening.* If, 
 indeed, the banker appoints a person to attend at the office after 
 banking hours for the purpose of returning an answer to a pre- 
 sentment, and such person does return an answer before mid- 
 night, no objection can be taken to the unreasonableness of the 
 hour when the presentment was made ; ^ and the same rule would 
 seem to prevail if the bill be 'personally presented to the acceptor 
 before twelve o'clock at night on the day that it falls due.^ So, 
 a demand or tender of rent on the land must, in order to create 
 or avoid a forfeiture, be made before sunset, this being a rule of 
 convenience adopted by the law to prevent the necessity of one 
 party waiting for the other till midnight. But if the tenant 
 
 ' Alexander v. Burohfield, V M. & Gr. 1061. 
 
 2 Id., 1066, 1067, per Tindal, C. J. See 39 & 40 V., c. 81 ; and Heywood v. 
 Pickering, 9 Law Rep., Q. B. 428 ; 43 L. J., Q. B. 145, S. C. 
 
 8 Parker v. Gordon, 7 East, 385 ; Elford v. Teed, 1 M. & Sel. 28. 
 
 " Wilkins V. Jadis, 2 B. & Ad. 188 ; 1 M. & Rob. 41, S. C. ; Jameson v. 
 Swinton, 2 Taunt. 224 ; Barclay v. Bailey, 2 Camp. 527, per Ld. EUen- 
 borough. 5 Garnett v. Woodcock, 6 M. & Sel. 44 ; 1 Stark. R. 475, S. C. 
 
 « See 6 M. & Gr. 624—626, per Parke, B. 
 
CHAP. III.] REASONABLE HOURS. 45 
 
 actually meet the lessor, either on or off the land, at any time of 
 the last day of payment, and tender the rent, it will be sufficient, 
 provided there was time before midnight to receive and count the 
 money tendered.^ 
 
 § 38. The law as to the delivery of goods within reasonable hours § 29 
 was much discussed in the case of Startup v. Macdonald.^ There 
 the defendant had agreed to purchase certain oil of the plaintiffs, to 
 be delivered within the last fourteen days of March, and the action 
 was brought for not accepting it according to the contract. The 
 defence was that the oil was tendered on the 31st March at nine at 
 night, which was an unreasonable hour. The jury found by a special 
 verdict that the oil was tendered at half-past eight at night on a 
 Saturday ; that there was full time for the plaintiffs to have de- 
 livered, and for the defendant to have examined, weighed, and 
 received the whole before Sunday morning ; but that the time of 
 tendering was unreasonably- late. Upon this verdict the Court of 
 Common Pleas gave judgment for the defendant ; but the judges of 
 the Exchequer Chamber (Lord Denman dissentiente) reversed the 
 decision. Mr. Justice Patteson observed, "It may be conceded 
 that the defendant was not bound to be on his premises ready to 
 receive the oil after the usual hours of business ; and if he had 
 gone away, and the plaintiffs had afterwards come, and been 
 unable to make a personal tender, they must have suffered for 
 their delay ; but as the defendant did wait, and as the tender was 
 made in time to complete the delivery within the time specified, 
 the unreasonableness and impropriety of the time, whatever those 
 words mean, form no answer to the action for not accepting the 
 oil." ^ Mr. Baron Alderson used language to the same effect,* 
 and thus laid down the general rule: "Wherever, in cases not 
 governed by peculiar customs of trade, the parties oblige them- 
 selves to the performance of duties within a certain number of 
 days, they have until the last minute of the last day to perform 
 
 1 Startup V. Macdonald, 6 M. & Gr. 619, 620, per Patteson, J. ; 622, per 
 Alderson, B. ; 625, 626, per Parke, B. 
 
 2 6 M. & Gr. 593, in Ex. Ch., reversing the judgment of the Court below, as 
 reported in 2 M. & Gr. 395 ; and in 2 Scott, N. R. 485. 
 
 3 6 M. & Gr. 620. 4 j^, q^I, 622. 
 
46 REASONABLE NOTICE TO QUIT. [PAET I. 
 
 their obligation. The only qualification that I am aware of to 
 this rule is, that in acts requiring time in order that they may be 
 completely performed, the party must, at all events, tender to do 
 the act at such period before the end of the last day, as, if the 
 tender be accepted, will leave him sufficient time to complete his 
 performance before the end of that day. In the case of a mer- 
 cantile contract, however, the opposite party is not bound to 
 wait for such tender of performance beyond the usual hours of 
 mercantile business, or at any other than the usual place at which 
 the contract ought to be performed. The party, therefore, who 
 does not make his tender at that usual place, or during those 
 usual hours, runs a great risk of not being able to make it at all. 
 In this case the plaintiffs have had the good fortune to meet 
 with the defendant, and to make a tender to him in sufficient 
 time. And I think, under these circumstances, that the defendant 
 was bound to accept the goods, and is liable in damages for not 
 accepting them."^ 
 
 § 34. Again, a reasonable notice to quit a yearly tenancy has 5 30 
 for centuries received a legal construction, as meaning a six calendar 
 months' notice, to terminate at the expiration of the current year : * 
 and when the tenant holds different portions of the premises from 
 different days, it has been further decided, that the notice refers to 
 the day of entry on the substantial subject of the holding.' The 
 
 1 6 M. & Gr. 622, 623. See also the luminous judgment of Parke, B., id. 
 623—626. 
 
 2 Doe V. Spence, 6 East, 123, per Ld. Ellenborough. It is still a moot paint 
 in the Superior Courts, whether, in the absence of evidence of a contract or 
 usage, a week's notice to quit is necessary to determine a weekly tenancy. See, 
 and compare, Jones v. Mills, 10 Com. B., N. S. *788 ; 31 L. J., C. P. 66, S. C. ; 
 HuffeU v. Armitstead, 7 C. & P. 66, per Parke, B. ; and Towne v. Campbell, 
 3 Com. B. 921. In the County Courts, however, this question has been settled 
 in the afiirmative for the last thirty years. It seems, too, tliat if the hiring be 
 monthly, a month's notice will be necessary ; and if the hiring be quarterly, a 
 quarter's notice will be necessary ; Towne v. Campbell, 3 Com. B. 921, per 
 Coltman, .J. See also Kemp v. Derrett, 3 Camp. 510, per Ld. Ellenborough ; 
 Eight d. Flower t». Darby, 1 T. R. 162, per Ld. Mansfield; Bridges v. Potts, 
 33 L. J., C. P. 338 ; 17 Com. B., N. S. 314, S. C. 
 
 3 Doe V. Snowdon, 2 W. Bl. 1224 ; Doe v. Spence, 6 East, 120 ; Doe v. 
 ■Watkins, 7 East, 551 ; Doe v. Rhodes, 11 M. & W. 600. In this last case the 
 
CHAP. in.J EEASONABLE TIME. 47 
 
 Agricultural Holdings Act, 1875, has, however, interfered with this 
 time-honoured rule ; and provided the holding be either ajgricultural 
 or pastoral, or both, and he at least two acres in extent,^ a year's 
 notice, "expiring with a year of tenancy,' ' has now become necessary 
 in every contract beginning after the 13th of February, 1876, unless 
 the landlord and tenant shall have agreed in writing on a different 
 period.' Nay, a year's notice will also be necessary with respect to 
 tenancies current on the 14th of February, 1876, unless, within two 
 months from that date, either of the parties interested shall have 
 given a written notice to the other that he declined to adopt the 
 new-fangled, rule.^ In the case of domestic servants, — which term 
 has been held to include huntsmen,* and head-gardeners,^ — a reason- 
 able notice to quit is a calendar month's warning ; ^ but it must be 
 borne iu mind that this rule is inapplicable to farm servants,'^ 
 clerks, travellers, governesses,^ housekeepers in large hotels,^ and 
 the like. So, the reasonable period during which a member of 
 Parliament is entitled to freedom from arrest on a ca. sa. has, for at 
 least two hundred years, been fixed at forty days before and after 
 each session, the rule being the same in the case of a dissolution as 
 in that of a prorogation.-^" In all these cases, the question being 
 decided by a precise rule of law, is entirely withdrawn from the con- 
 sideration of the jury. 
 
 I 35. Again, the reasonable time for which a party charged with § 30 
 an indictable offence may, in England or Ireland, be committed 
 for re-examination is now limited by statute to eight clear days, 
 
 question raised, but not decided, was whether, where a tenant held a farm from 
 year to year, — the land from 2 Feb., the house from 1 May, — a notice to quit 
 the whole, given half a year before 2 Feb. , was sufficient to entitle the landlord 
 to recover the whole in ejectment, on a demise dated 3 Feb. The inclination 
 of Ld. Abinger's opinion appears to have been in support of the affirmative. 
 
 1 38 & 39 v., c. 92, § 58. See also 39 & 40 V., c. 63, Ir., as to the cor- 
 responding law in Ireland. ' § 51. ^ § 57. 
 
 * NiooU V. Greaves, 33 L. J., C. P. 259 ; 17 Com. B., N. S. 27, S. C. 
 
 5 Nowlan V. Ablett, 2 C. M. & R. 54. 
 
 6 Nowlan v. Ablett, 2 C. M. & E. 54 ; Fawcett v. Cash, 5 B. & Ad. 904 ; 
 3 N. & M. 177, S. C. ? Lilley v. Elwin, 11 Q, B, 742. 
 
 8 Todd V. Kerrick, 8 Ex. R. 151. See post, § 177. 
 
 9 Lawler v. Linden, I. R. 10 C. L. 188. 
 1" Goudy V. Duncombe, 1 Ex. R. 430. 
 
48 EBASONABLE TIME. [PART I. 
 
 where the accused is remanded by warrant, or, in England, to three 
 clear days, where he is remanded by verbal order ; ^ and although 
 these rules have not been extended by express enactment to cases 
 in which justices deal summarily with defendants by conviction or 
 order, they would probably be considered by the judges as furnish- 
 ing a guide, which ought on such occasions to be respected. If, 
 therefore, in any of these cases, the question should arise whether 
 a party had been remanded for a reasonable time, the jury would 
 be called upon, as in the case of probable cause, to ascertain the 
 existence of the facts, and to leave the court to determine, upon 
 those facts, whether the time was reasonable or not.^ On two 
 occasions, indeed, in England,^ and on one in Ireland,* the entire 
 question appears to have been submitted to the jury, but the latter 
 of the two English cases rested upon the authority of the former,^ 
 and in the former no objection was taken at Nisi Prius to the 
 summing up of the judge, but on a subsequent motion in Banc, its 
 correctness was questioned, and at the second trial the course stated 
 
 1 11 & 12 v., c. 42, § 21, enacts, that " if, from tlie absence of witnesses, or 
 from any other reasonable cause, it sliall become necessary or advisable to defer 
 the examination, or further examination, of the witnesses for any time, it shall 
 be lawful to and for the justice or justices, before whom the accused shall 
 appear or be brought, by his or their warrant, from time to time to remand 
 the party accused for such time as by such justice or justices, in their discre- 
 tion, shall be deemed reasonable, not exceeding eight clear days, to the common 
 gaol or house of correction, or other prison, lock-up-house, or pl{ice of security, 
 in the county, riding, division, liberty, city, borough, or place for which such 
 justice or justices shall then be acting : or if the remand be for a time not 
 exceeding three clear days, it shall be lawful for such justice or justices verbally to 
 order the constable, or other person in whose custody such party accused may 
 then be, or any other constable or person to be named by the said justice or 
 justices in that behalf, to continue or keep such party accused in his custody, 
 and to bring him before the same, or such other justice or justices as shall be 
 there acting, at the time appointed for continuing such examination." See, as 
 to the Irish law, 14 & 15 V., c. 93, § 14, Ir. 
 
 2 Davis V. Capper, 10 B. & C. 28 ; 5 M. & R. 53 ; 4 C. & P. 134, S. C. 
 
 3 Davis V. Capper, 10 B. & 0. 30, per Gaselee, J. ; Cave v. Mountain, 1 
 M. & Or. 260, pi'v Ld. Abinger ; 1 Scott, N. R. 132, S. C. 
 
 •• Gillman v. Connor, 2 Jebb & Sy. 210. 
 
 = Cave V. Mountain, 1 M. & Gr. 263, per Tindal, C. J., who adds that Ld. 
 Abinger, who tried the cause, was, " under all the circumstance.^, satisfied with 
 the verdict," and, consequently, the propriety of his leaving the question to the 
 jury could not practically be questioned in the court above. 
 
CHAP. III.] EEASONABLE TIME. 49 
 
 above was distinctly adopted.'^ So, in an action against a sheriff 
 for an escape, the question whether the officer was guilty of unrea- 
 sonable delay in taking the party arrested to prison, is one for the 
 determination of the judge,^ as also is the question whether an 
 arrest has been countermanded within a reasonable time,' or 
 whether an executor has had reasonable time to remove the goods 
 from the testator's mansion.* 
 
 § 36. On the other hand, it appears to have been held, that the § 30 
 questions, whether a crop has been left on the ground for a 
 reasonable time,^ so as to enable the tithe-owner to compare the 
 tithe set out with the remainder of the produce ; whether a copy 
 of a rate has been delivered by an overseer to an inhabitant within 
 such reasonable time as to satisfy the Act,^ which requires it to 
 be given " forthwith " upon demand and tender of payment ; '' 
 whether the vendor of railway shares has offered to transfer them 
 within a reasonable time ; * whether the owner of cattle, which 
 have strayed on land through defect of the proprietor's fences, has 
 removed them within a reasonable time ; ^ whether goods purchased 
 by sample have been rejected,^" or goods taken by distress have been 
 sold,^^ within a reasonable time ; whether, under the old law,^^ 
 shares belonging to a bankrupt have been accepted by his 
 assignees,^' — whether a foreign or inland bill of exchange payable 
 at or after sight has been presented,^* — whether a blank stamped 
 
 > Davis V. Capper, 4 C. & P. 134 a, 138 ; 10 B. & C. 33, 35, 36, S. C. 
 2 Benton v. Sutton, 1 B. & P. 28, per Heath, J. 
 
 ' Scheibel v. Faiibaim, 1 B. & P. 388. Heath, J., there held, that the arrest 
 ought to have been countermanded in the course of the day in which the debt 
 was received. ^ Co. Lit. § 69, and p. 56 b. 
 
 ^ Pacey v. Huidom, 3 B. & C. 213. ' 17 G. 2, c. 3, § 2. 
 
 ' Tennant v. Bell, 9 Q. B. 684. 
 « Stewart v. Cauty, 8 M. & W. 160. 
 ' Goodwyn v. Cheveley, 4 H. & N. 631. 
 
 1" Parker v. Palmer, 4 B. & A. 387. " Pitt v. Shew, 4 B. & A. 206. 
 
 '2 For the new law, see 32 & 33 V., c. 71, §§ 23, 24. 
 
 '3 Graham v. Van Diemen's Land Co., 11 Ex. E. 101. See also Mackley 
 V. Pattenden', 30 L. J., Q. B. 225. 
 
 " MuOman v. D'Equino, 2 H. Bl. 564 ; Fry v. Hill, 7 Taunt. 397. In 
 determining this question, the jury should be directed to take into considera- 
 tion the interests, not only of the drawer, but of the holder also. Ramchurn 
 MuUick V. Luckmeechund Kadakissen, 9 Moo. P. C. E. 46 ; Mellish v. Rawdon, 
 
50 REASONABLE SKILL DUE DILIGENCE, ETC. [PAET I. 
 
 acceptance has been filled up by the holder,^ — whether a voyage 
 insured has been commenced or prosecuted,^ — or whether costs 
 have been taxed, within such time,^ are to be decided by the jury. 
 In attempting to reconcile these conflicting decisions, it may per- 
 haps be urged, that the last-named questions turn upon the ordinary 
 course of business or trade, and consequently relate to matters with 
 which the jury are peculiarly acquainted ; but whether this be a 
 satisfactory solution of the difficulty is a matter on which no opinion 
 is here expressed. 
 
 § 37. Questions oi reasonable skill or care, due diligence, and gross § 31 
 negligence must, in the great majority of instances, be determined 
 by the jury,* since the judges can rarely have materials which will 
 enable them to decide such questions by rules of law. Thus, if an 
 action be brought against a surgeon for negligence in the treatment 
 of his patient,^ or against a gratuitous bailee for gross carelessness 
 in losing the property intrusted to his care,^ what law can possibly 
 define whether such and such conduct amounts to sufficient negU- 
 gence on the part of the defendant to entitle the plaintiff to a 
 
 9 Bing. 416. See Chart. Merc. Bk. of India, &c. v. Dickson, 3 Law Rep., 
 P. C. 574 ; and Van Diemen's Land Bk. v. Victoria Bk., 40 L. J., P. C. 28. 
 
 ' Temple ■;;. Pullen, 8 Ex. R. 389. Tlie question of reasonable time does 
 not arise in tlie case of a blank acceptance, when the hill is in the hands of a 
 bon6 fide indorsee for value without notice. Montague v. Perkins, 22 L. J., 
 C. P. 187. 
 
 2 Mount V. Larkins, 8 Bing. 108 ; 1 M. & Sc. 165, S. C. ; Phillips v. 
 Irving, 7 M. & Gr. 325. In this last case, the question was left by consent 
 for the decision of the court, who held, " that no certain or fixed time could 
 be said to be a reasonable or unreasonable time for seeking a cargo in a foreign 
 port ; but that the time allowed must vary with the varying circumstances, 
 which may render it more or less difficult to obtain such cai-go." Id. 328, 329, 
 per Tindal, C. J. 
 
 ' Burton v. Griffiths, 11 M. & W. 817. In this case there was an express 
 traverse of reasonable time, and the judges above concurred with the finding 
 of the jury. 
 
 ^ See Bridges v. N. Lond. Ry. Co., 7 Law Rep., H. L. 213 ; 43 L. J., Q. B. 
 151, S. C. ; Robson v. N. East. Ry. Co., 46 L. J., Q. B. 50 ; L. R., 2 Q. B. D. 
 85, S. C. in Ct. of App. ; Rose v. N. East. Ry. Co., L. R., 2 Ex. D. 248, per Ct. 
 of App.; 46 L. J., Ex. 374, S. C; Jackson v. Metrop. Ry. Co., 46 L. J., C. P. 
 376, per Ct. of App. * 2 A. & E. 261, per Taunton, J. 
 
 « Doorman v. Jenkins, 2 A. & E. 256 ; 4 N. & M. 170, S. C. 
 
CHAP. III.J BEASONABLE SKILL GEOSS NEGLIGENCE, ETC. 51 
 
 verdict ? In these and the like eases, therefore, the question has 
 usually been left entirely to the jury, and even when they have 
 found a verdict in opposition to the opinion of the presiding judge, 
 the court has generally refused to grant a new trial.^ In some cases, 
 where the question relates to matters of legal practice, as, for in- 
 stance, if a sheriff be charged with neglect of duty in not executing a 
 writ, or if a solicitor be sued for negligence in conducting an action, 
 the judges would seem to be more competent than a jury to decide 
 whether. the facts proved amount to a want of reasonable care ; but 
 even in such cases it seems that the province of the judge is merely 
 to inform the jury for what species or degree of negligence the 
 defendant is answerable,^ and what duty in the particular case 
 devolved upon him, either by the statute or common law, or the 
 practice of the court ; and then, having done this, he will leave the 
 jury to consider all the circumstances in evidence, and to decide, 
 first, whether the defendant has performed his duty, and next, 
 whether, in case of non-performance, the neglect was of that sort 
 or degree which was venial or culpable in the sense of not sus- 
 taining or sustaining an action.^ It may here be added, that the 
 judges are the proper parties to decide whether fines, customs, or 
 services are reasonable,* as also whether deeds contain reasonable 
 covenants or powers.' 
 
 1 Doorman v. Jenkins, 2 A. & E. 260 — 266, per Cur., commenting on and 
 explaining SMells v. Blackburne, 1 H. Bl. 158 ; Moore v. Mourgue, 2 Cowp. 479. 
 
 ^ In Godefroy v. Dalton, 6 Bing. 460, the judges decided tliat an attorney 
 had not heen guilty of such negligence as would render him Uahle to an action. 
 " The cases," said Tindal, C. J., in pronouncing the judgment of the court, 
 " appear to establish in general, that the attorney is liable for the consecLuenoes 
 of ignorance or non-observance of the rules of practice of this court ; for the 
 want of care in the preparation of the cause for trial ; or of attendance thereon 
 with his witnesses ; and for the mismanagement of so much of the conduct of a 
 cause as is usually and ordinarily allotted to his department of the profession. 
 Whilst, on the other hand, he is not answerable for error in judgment upon 
 points of new occurrence, or of nice or doubtful construction, or of such as are 
 usually intrusted to men in. a higher branch of the profession of the law." 
 P. 468. 
 
 ^ Hunter v. Caldwell, 10 Q. B. 69, 82, per Ld. Denman ; Eeece v. Rigby, 
 4 B. & A. 202, per Abbott, C. J. ; Shilcock v. Passman, 7 C. & P. 292, 293, per 
 Alderson, B. 
 
 * Co. Lit. 56 5, 59 & ; Wilson v. Hoare, 10 A. & E. 236 ; Bell v. Wardell, 
 Willes, 202. ^ gmith v. Doe d. Jersey, 2 B. & P. 592, per Abbott, C. J. 
 
 E 2 
 
5^ BONA FIDES MALICE INTENTION. [PAET I. 
 
 § 38. The proper tribunal for deciding questions of bona fid.es} § 32 
 actual knowledge,^ express malice,^ real intention} or reasonable 
 cause, is the, jury ; but it will presently be seen, in the chapter on 
 Presumptive Evidence, and in other parts of this work, that the law 
 will sometimes presume the existence of fraud, knowledge, malice, 
 intention, or justification, from the proof of other remote facts ; and 
 whenever these presumptions are embodied in rules of law, the 
 court will either draw the inference without the aid of a jury, or the 
 jury will be bound to follow the directions of the judge. Moreover, 
 for particular purposes the decision of these questions is sometimes 
 entrusted to the judge either by the practice of the court, or by the 
 express language of the Legislature. Thus, in actions against' 
 magistrates for acts done in the execution of their office, the judge 
 must decide whether notice of action is necessary, and the question 
 of bona fides must consequently be determined by him, and not by 
 the jury.^ So, when an amendment is sought to be made at Nisi 
 Prius, it is the duty of the judge to determine, as a matter of fact, 
 from the pleadings and the evidence, what is the real question in 
 controversy between the parties.^ Again, under the Act of 30 & 31 
 v., c. 142, § 5, as embodied in the Supreme Court of Judicatm'e 
 Act, 1878,'' a suitor in the Supreme Court, who does not recover 
 more than 201. in any action on contract, or lOL in any action on 
 tort, is not entitled to costs, unless the judge shall certify that there 
 was "sufficient reason" for suing in such court, or unless the 
 court or a judge at chambers shall by rule or order allow such 
 costs. 
 
 ' Wedge V. Berkeley, 6 A. & E. 663 ; 1 N. & P. 665, S. C. ; Moore v. 
 Mourgue, 2 Cowp. 480 ; Gray v. Dinnen, 2 Jebb & Sy. 265 ; Coxliead v. 
 Richards, 2 Com. B. 584, per CressweU, J. ; Hazeldine v. Grove, 3 Q. B. 1007 ; 
 Hughes V. Bnckland, 15 M. & W. 346 ; Horn v. Thomborougli, 3 Ex. R. 846 ; 
 6 Dowl. & L. 651, S. C. ; Douglas v. Ewing, 6 Ir. Law R., N. S. 395. See 
 ante, § 29. 2 Harratt v. Wise, 9 B. & 0. 712. 
 
 ■* As in actions for malicious prosecution or airest. Mitchell v. Jenkins, 5 
 B. & Ad. 588 ; 1 Camp. 207, n. a. 
 
 * Doe V. Wilson, 11 East, 56 ; Powis v. Smith, 5 B. & A. 850 ; Doe v. Batten, 
 1 Cowp. 243 ; Zouoh v. Willingale, 1 H. Bl. 312, per Gould and Wilson, Js. ; 
 Cox V. Reid, 13 Q. B. 558. 
 
 ' Kirby v. Simpson, 23 L. J., M. C. 165 ; Arnold v. Hamel, 9 Ex. R. 404. 
 
 " Wilkin V. Reed, 15 Com. B. 192, 198, 205. 
 
 ' 36 «& 37 v., c. 66, § 67. 
 
Chap. iii.J privileged communications. 53 
 
 § 39. In all other proceedings in the High Court the costs are 
 now, by virtue of the New Eules, Order LV., in the court's discretion; 
 subject, however, to this proviso, that if the action or issue be tried 
 hjajury, "the costs shall follow the event, unless, upon application 
 made at the trial for good cause shown, the judge before whom such 
 action or issue is tried, or the court, shall otherwise order." As this 
 rule virtually repeals the old statutes relating to costs, it follows that 
 the recovery of a farthing damages by verdict will carry costs in 
 the absence of an order to the contrary.^ And it ought further to 
 be carefully borne in mind, that the application for such an order 
 must be made at the trial, and must be dealt with either by the 
 judge before whom the action is tried, or by the Divisional Court.^ 
 A judge at chambers, even though he be the same judge as presided 
 at the trial, will have no jurisdiction in the matter.^ 
 
 § 40. When a question arises as to whether a commv/nication be § 33 
 privileged or not, and the privilege be of a character which is not 
 regarded as absolute on public grounds,* the respective duties of the 
 judge and jury seem to be as follows : first, the jury must determine 
 as a question of fact, whether the communication was made bond 
 fide ; and then, if the fact be found in the affirmative, — as it must 
 be if the evidence be not sufficient to raise a probability that the 
 communication was colourably made,^ — the judge must decide, as 
 a question of law, whether the occasion of the publication was such 
 as to rebut the inference of malice.^ If, however, any doubt should 
 exist as to whether or not the defendant had in some respect 
 exceeded the limits of his privilege, and had made comments, which 
 
 1 Parsons v. Tinling, L. R., 2 C. P. D. 119 ; 46 L. J., C. P. 230, S. C. See 
 as to the old law, 3 & 4 V., c. 24, § 2 ; 8 & 9 W. 3, c. 11, § 1 ; and 8 & 9 V., 
 e. 93, §§ 81, 83. 
 
 2 Baker v. Oakes, L. R., 2 Q. B. D. 171 ; 46 L. J., Q. B. 246, S. C. 
 
 3 Id. 
 
 * As to such, privileged communications, see Dawkins ■;;. Paulet, 5 Law Rep., 
 Q. B. 94 ; 9 B. & S. 768 ; 39 L. J., Q. B. 53, S. C. ; and Dawkins v. Ld. Rokeby, 
 8 Law Rep., Q. B. 255, per Ex. Ck. ; 42 L. J., Q. B. 63, S. C. 
 
 ' Taylor v. Hawkins, 16 Q. B. 308 ; SomerviUe v. Hawkins, 10 Com. B. 
 583. 
 
 " Coxhead v. Riokards, 2 Com. B. 584, 603, per CressweU, J. ; 600, per 
 Coltman, J. ; Stace v. Griffith, 6 Moo. P. C, N. S. 18. 
 
54 INFBINGEMENT OF PATENT— SEAWOETHINESS. [PAET I. 
 
 might be regarded as evidence of actual malice, the opinion of the 
 jury must be taken upon the effect of such evidence.^ 
 
 § 41. It is still a moot point whether, on an indictment for § 34 
 perjury, the materiality of the matter in which the false swearing is 
 proved, is a question of fact for the jury, or a question of law for 
 the judge; but, according to the better opinion, it ought to be 
 regarded in the latter light.^ It seems, however, that questions 
 respecting permissive occupation ; ^ the assent of an executor to a 
 bequest ; * the unsoundness of a horse ; ^ the delivery of a document 
 as an escrow, unless the question turn solely on the construction of 
 writings ; ® the infringement of a patent,'^ where such inMngement 
 does not depend merely on the construction of the specification ; ^ 
 the novelty of a design, within the meaning of the Acts relating to 
 copyright of design for articles of manufacture ; ^ the existence of a 
 nuisance, as caused by erecting a bridge or weir in a navigable 
 stream ; ^° the definition of the word " street ; " ^^ the seaworthiness 
 of a ship ; ^^ the materiality of facts not communicated in effecting 
 an insurance ; ^* the competency of a testator in a will cause ; the 
 cruelty of a husband as a ground for judicial separation ; ^* and the 
 
 1 Cooke V. Wildes, 5 E. & B. 328. 
 
 ^ See and compare K. v. Courtney, 7 Cox, 111 ; 5 Ir. Law E., N. S. 434, 
 S. C. ; R. V. Lavey, 3 C. & Kii. 26 ; E. v. Dunstan, Ey. & M. 109. 
 
 3 Lessee of Phayre v. Fahy, Hayes & Jon. 128 ; Jones v. Boland, 2 Jebb & 
 Sy. 289 ; but see Wbiteaore v. Symonds, 10 East, 13. 
 
 * Mason v. Famell, 12 M. & W. 674, even tboiigh "the question depends 
 upon tbe careful and somewhat critical comparison of the terms of a deed, 
 with the other circumstances and facts of the case," per Alderson, B., id. 682, 
 pronouncing the judgment of the court. See also Elliott v. EUiott, 9 M. & W. 
 27, per Ld. Abinger. 
 
 * See per Patteson, J., in Baylis v. Lawrence, 11 A. & E. 926. 
 « Fumess v. Meek, 27 L. J., Ex. 34. See post, § 43, 1834. 
 
 ' De la Eue ■;;. Dickenson, 7 E. & B. 738 ; Lister v. Leather, 27 L. J., Q. B. 
 295 ; 8 E. & B. 1004, S. C. 
 
 ' Seed V. Higgins, 8 H. of L. Cas. 550, 561, 565. See post, § 43. 
 
 " Harrison v. Taylor, 29 L. J., Ex. 3. 
 
 1° E. V. Betts, 16 Q. B. 1022 ; R. v. EusseU, 6 B. & C. 566 ; R. v. "Ward, 4 
 A. & E. 384. 
 
 " E. V. FuUford, 1 L. & Cave, 403 ; 9 Cox, 453, S. C. 
 
 12 Clifford V. Hunter, 3 C. & P. 16, per Ld. Tenterden ; M. & M. 103, S. C. 
 
 13 EawUngs v. Desborough, 2 M. & Eob. 328, per Ld. Denman. 
 " Tomkins v. Tomkins, 1 Swab. & Trist. 168. 
 
CHAP. III.] CONDONATION TENDER NECESSARIES. 65 
 
 condonatioii of a conjugal offence,^ are for the jury, though the 
 judge ought to take care that they are not misled by anything that 
 comes out in the evidence.^ So, it is the undoubted privilege of 
 the jury to determine whether there has been an acceptance of goods 
 sufficient to satisfy the Statute of Frauds.^ So, the question 
 whether a tender be absolute or conditional is usually one for the 
 jury ; * the court, however, being mindful to point out that a tender 
 is not invalid in law as being conditional, if it merely implies that 
 the debtor admits no more to be due, but that it must go further, 
 and imply that the creditor, if he consents to take the sum offered, 
 will be required to admit that his entire claim is satisfied.^ The 
 jury, also, in any question relating to the amount of interest payable 
 on a foreign bill of exchange, will determine as facts, first, what 
 rate of interest is usually paid at the respective places where the 
 bill was drawn or indorsed or accepted, and next, whether the 
 plaintiff has sustained any damage requiring the payment of interest 
 at all ; but the judge wiU decide as a pure question of law, whether 
 the case is to be governed lege loci contractus, or lege loci solutionis.^ 
 
 § 42. The jury must decide whether articles supplied to an infant § 35 
 be necessaries : but their decision is subject to the control of the 
 judges,'' who have laid down, as general rules of law, first, that 
 this question does not, in any degree, depend upon what allowance 
 the infant may have received from his father, and may have mis- 
 applied;^ secondly, that the articles must be really useful, and 
 therefore that merely ornamental jewelry,^ or luxurious confec- 
 
 1 Peacock v. Peacock, 1 Swab. & Trist. 183. 
 
 ^ Per Ld. Abinger in Mackintosh v. Marsball, 11 M. & W. 126. 
 
 ' LillywMte v. DeVereux, 15 M. & W. 291, per Alderson, B., recognising 
 Edan 0. Dudfleld, 1 Q. B. 302, 307 ; 4 P. & D. 656, S. C. ; Clark v. Wright, 
 11 Ir. Law E., N. S. 402. 
 
 * Eckstein v. Reynolds, 7 A. & E. 80 ; Marsden v. Goode, 2 C. & Kir. 133. 
 
 ^ Bowen v. Owen, 11 Q. B. 130 ; Bull v. Parker, 2 DowL, N. S. 345 ; Hen- 
 wood V. Oliver, 1 Q. B. 409. 
 
 f Gibbs V. Fremont, 9 Ex. R. 25. 
 
 ? Harrison v. Fane, 1 M. & Gr. 553, per Tindal, 0. J. ; Ryder v. Wombwell, 
 38 L. J., Ex. 8, per Ex. Oh. ; 4 Law Rep., Ex. 32, S. C. 
 
 8 Burghart v. Hall, 4 M. & W. 727 ; Peters v. Fleming, 6 M. & W. 46. 
 
 9 Peters v. Fleming, 6 M. & W. 47, 48, per Parke & Alderson, Bs. ; Ryder 
 V. Wombwell, 38 L, J., Ex. 8, per Ex. Ch. ; 4 Law Rep., Ex. 32, S. C. In the 
 
56 CONSTRUCTION OF DOCUMENTS. [^ART I. 
 
 tionary,! are not necessaries ; and thirdly, that, if useful, they must 
 be such as would be necessary and suitable to the degree and station 
 in life of the infant.^* In a case, where the jury, in opposition to 
 the opinion of the judge, found that the hiring of horses and gigs 
 was necessary for an Oxford undergraduate, he being the younger 
 son of a man of fortune, and keeping a horse of his own, the court 
 set aside the verdict as perverse, and granted a new trial ; ^ and the 
 same course was pursued, where an Irish jury had found that a 
 hunter was " necessary " for a mere boy, who, having bragged at a 
 ball that he was a member of the Surrey Stag Hunt, and worth 
 GOOL a year, had induced an Irishman to sell him his horse for 
 1501., had hunted the animal through the season, and had then, 
 when payment was demanded, set up, through his guardian, what 
 was described by an indignant advocate as " the shabby defence of 
 infancy." * Perhaps the safest rule that can be laid down on this 
 subject is, that the judge must determine whether the articles are 
 capable of being necessaries, regard being had to the position of the 
 defendant ; and if he should decide in the affirmative, the jury will 
 then have to say, whether under the circumstances they were neces- 
 saries or not.' 
 
 § 43. The construction of all written documents, — ^which term it § 36 
 is presumed necessarily includes Acts of Parliament, judicial records, 
 deeds, wills, negotiable instruments, agreements or letters, — ^belongs 
 to the court alone, whose duty it is to construe all such instruments 
 
 latter case, a pair of jewelled solitaires and a silver-gilt goblet were held not 
 to be " necessaries " ; but in the former case it was determined that the jiiry 
 were entitled to say, whether a watch and gold chain were necessaries for an 
 undergraduate. They found, as is their wont, in the affirmative. 
 
 ' Brooker v. Scott, 11 M. & W. 67 ; Wharton ■;;. Mackenzie, ajid Cripps v. 
 HiUs, 1 D. & M. 544 ; 5 Q. B. 606, S. 0. 
 
 2 Peters v. Fleming, 6 M. & W. 42. 
 
 '' Harrison v. Fane, 1 M. & Gr. 550. 
 
 * Skiine v. Gordon, I. R. 9 C. L. 479. 
 
 * Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606 ; 1 D. & M. 544, 
 S. C. ; in which cases, juries having decided that wine parties and suppers 
 were necessaries for Oxford undergraduates, the Court of Q. B. granted new 
 trials. In Chappie v. Cooper, 13 M. & W. 252, the court held that the 
 funeral of a husband, who had left no property to be administered, might be 
 regarded as "necessaries" supplied to his infant widow. Legal expenses in 
 
CHAP. III.] CONSTETJCTION OF DOCUMENTS. 57 
 
 as soon as the true meaning of the words ^ in which they are couched, 
 and the surrounding circumstances, if any, have been ascertained as 
 facts by the jury ; ^ and it is the duty of the jury to take the con- 
 struction from the court, either absolutely, if there be no words to 
 be construed as words of art or phrases used in commerce, and no 
 surrounding circumstances to be ascertained;^ or conditionally, 
 when those words or circumstances are necessarily referred to them. 
 Unless this were so, there would be no certainty in the law ; for a 
 misconstruction by the court is the proper subject of redress in a court 
 of error ; but a misconstruction by the jury cannot in any way be 
 effectually set right.* Thus the court, after obtaining from the jury 
 a mere explanation of technical terms,' will construe the specification 
 of a patent, though the interpretation of such an instrument, — relat- 
 ing as it does to matters of science and skill, — would seem peculiarly 
 adapted to the practical information of jurors;^ and where a contract 
 
 preparing a marriage settlement have also been held. " necessaries " for an 
 infant bride. Helps v. Clayton, 17 Com. B., N. S. 553. 
 
 1 See AslLforth v. Bedford, 9 Law Rep., C. P. 20 ; 43 L. J., C. P. 57, S. C. ; 
 Alexander v. Vanderzee, 7 Law Rep., C. P. 530. But see Bowes v. Shand in 
 Dom. Proc. 8 June, 1877, affirming Sband v. Bowes, L. B., 1 Q. B. D. 470 ; 
 45 L. J., Q. B. 507, S. C. 
 
 2 See Tamvaco v. Lucas, 1 B. & S. 185 ; S. C. in Ex. Ch., 3 B. & S. 89 ; 
 Lyle V. Richards, 35 L. J., Q. B. 214, in Dom. Proc. ; 1 Law Rep., H. L. 
 222, S. C. 
 
 3 Key V. Cotesworth, 7 Ex. R. 595. In Lang v. Smith, 7 Ring. 284, the 
 court held that the jury were rightly directed to determine, as a question of 
 mercantile usage, whether certain Neapolitan bonds passed by the mere delivery 
 of the coupons, without the production of the certificates. 
 
 '' Per Paike, B., pronouncing the judgment of the court in Neilson v. 
 Harford, 8 M. & W. 823. ^ Hills v. Evans, 31 L. J., Ch. 457. 
 
 « Neilson v. Harford, 8 M. & W. 806, 818, 819 ; 2 Webst. Pat. R. 295, 
 328, S. C. ; BoviU v. Pimm, 11 Ex. R. 718. These cases virtually overrule 
 HUl V. Thompson, 3 Mer. 630, where Ld. Eldon observed, that the intelli- 
 gihility of the description of a specification was a matter of fact. It is worthy, 
 of remark, that in America the sufficiency of the description in a patentee's 
 specification is generally left as a question of fact to be determined by the 
 jury, unless the statement be obviously too vague. Wood v. Underhill, 
 5 How. S. Ct. R. 1, 4. See Bush v. Eox, 5 H. of L. Cas. 707 ; Booth v. 
 Kennard, 2 H. & N. 84 ; Hills v. London Gaslight Co., 5 H. & N. 312 ; 29 
 L. J., Ex. 409, S. C. ; and Betts v. Menzies, 1 E. & E. 990, 1020 ; in which 
 cases it was held that where in a patent cause the want of novelty appears 
 distinctly from documents, such for instance as a prior patent and specification, 
 the judge, and not the jury, must notice the identity of the two supposed 
 
58 CONSTEUCTION OF DOCUMENTS. [PABT I. 
 
 for the sale of barley was attempted to be proved by letters, one of 
 which offered good barley, and the other accepted the offer, " expect- 
 ing you will give us fine barley and good weight," the court held, that 
 though the jury might be asked as to the mercantile meaning of the 
 words " good " and " fine," yet, after having found that there was 
 a distinction between them, they could not further decide that the 
 parties did not misunderstand each other, but were bound to take the 
 interpretation of the contract, as a matter of law, from the judge.^ 
 So, the question whether the sum mentioned in an agreement to be 
 paid for a breach, is to be treated as a penalty, or as liquidated 
 damages, is one of law to be decided by the judge, upon a con- 
 sideration of the whole instrument ; ^ and the question whether a 
 letter amounts to a guarantee must be determined by the court 
 alone, provided it contains no words of doubtful trade meaning, and 
 the extrinsic facts are not in controversy.^ So it seems clear, — ^not- 
 withstanding one or two authorities to the contrary,* — that the court 
 must determine, whether a written acknowledgment of a debt,^ or 
 of title,^ is sufficient to take the case out of the statutes of limita- 
 tion ; though, perhaps, in a doubtful case, it may be a prudent 
 
 inventions, and the consequent want of novelty in tlie second. See, too, Betts 
 V. Menzies, as ultimately decided in the House of Lords, 10 H. of L. Cas. 117 ; 
 and Seed v. Higgins, 8 H. of L. Cas. 550, 561, 565. But see also the observa- 
 tions of Ld. Westbury, Ch., on Bush v. Fox, and the law supposed to be there 
 laid down, in Hills v. Evans, 31 L. J., Ch. 461, 462. 
 
 1 Hutchison v. Bowker, 5 M. & W. 535. Parke, B., there observed, " The 
 law I take to be this, — that it is the duty of the court to construe all written 
 instruments ; if there are peculiar expressions used in it, which have, in par- 
 ticular places or trades, a known meaning attached to them, it is for the jury 
 to say what the meaniiig of those expressions was, but for the Court to decide 
 what the meaning of the contract was." P. 542. See also Bourne o. Gtatliffe, 
 3 M. & Gr. 643, 689, 690 ; 3 Scott, N. R. 1, S. C. ; Griffiths v. Eigby, 1 H:. & 
 N. 237 ; Hills v. London Gaslight Co., 27 L. J., Ex. 60 ; KicHand v. Nisbet, 
 3 Macq. Sc. Cas., H. of L. 766 ; Montgomery v. Middleton, 13 Ir. Law K., 
 N. S. 173. 
 
 2 Sainter v. Ferguson, 7 Com. B. 727, per Wilde, C. J. This question was 
 in former times occasionally left to the jury. See Crisdee v. Bolton, 3 C. & P. 
 240, per Best, C. J. 
 
 ' Bk. of Montreal v. Mimster Bk., I. R. 11 C. L. 47. 
 ■• Lloyd V. Maund, 2 T. R. 760 ; Linsell v. Bonsor, 2 Bing. N. C. 241. 
 ^ Morrell v. Frith, 3 M. & W. 402 ; Routledge v. Ramsay, 8 A. & E. 222, 
 per Ld. Denman. 
 
 s Doe V. Edmonds, 6 M. & W. 302, per Parke, B. 
 
CHAP. III.J CONSTBtlCTION OF LETTEES. 59 
 
 course for the judge to express his own opinion, and also to take 
 the opinion of the jury ; ^ and if the document is connected with 
 other evidence affecting its construction, then the whole must be 
 submitted to the jury together.^ 
 
 § 44. With respect to the construction of letters, the rule of law § 3G 
 appears to be, that, if extrinsic circumstances be not capable of 
 explaiaing them, then, like other documents, their interpretation is 
 a pure matter of law, in however ambiguous language they may be 
 couched ; ^ but if they be written in so dubious a manner as to bear 
 different constructions, and if they can be explained by other trans- 
 actions, the jury, who are clearly the judges of the truth or false- 
 hood of such collateral facts, which may vary the sense of the letters 
 themselves, must decide upon the whole evidence.* Thus, where 
 a question arose in Ireland whether the defendant had adopted the 
 acceptance of a bill, it was held that the construction of a letter 
 written by him on the subject, taken in connection with his subse- 
 quent conduct, was entirely for the jury.^ So, where a contract has 
 to be made out partly by letters, and partly by parol evidence, the 
 jury must deal with the whole question.^ If a document be lost, 
 and oral evidence be given of its contents, the judge must construe 
 its meaning in the same manner as if it had been produced, but the 
 jury may, of course, in such a case be called upon to declare whether 
 they believe the oral testimony.'' 
 
 § 45. The power of the jury to interpret expressions is not con- § 37 
 fined to such as are employed in contracts, or have a peculiar 
 
 1 Bucket V. Churcli, 9 C. & P. 211, per Parke, B. ; Morrell v. Frith, 3 M. 
 & W. 406, per id. 
 
 ^ Routledge v. Ramsay, 8 A. & E. 222, per Ld. Denman ; Morrell v. Frith, 
 3 M. & W. 402 ; Moore v. Garwood, 4 Ex. R. 681 ; Ashpitel v. Sercombe, 5 
 Ex. R. 163, 164 ; Foster v. Mentor Life Ass. Co., 3 E. & B. 48. 
 
 3 Fumess v. Meek, 27 L. J., Ex. 34. 
 
 ■* Per Btiller, J., in Maokbeatk v. Haldimand, 1 T. R. 182 ; Smith v. Thompson, 
 8 Com. B. 44. See Lyle v. Richards, 35 L. J., Q. B. 214, in Dom. Proc. ; 
 1 Law Rep., H. L. 222, S. C. 
 
 ^ WUkinson v. Storey, 1 Jebb & Sy. 509. See Brook v. Hook, 6 Law Rep., 
 Ex. 89 ; 40 L. J., Ex. 50, S. C. 
 
 « Bolokow V. Seymour, 17 Com. B., N. S. 107. 
 
 ? Berwick v. Horsfall, 27 L. J., C. P. 193 ; 4 Com. B., N. S. 450, S. C. 
 
60 MEANING OF TECHNICAL PHRASES. [PAET I. 
 
 commercial meaning ; but seems to extend to all phrases, capable 
 of being used in a technical sense, which do not require any know- 
 ledge of the law to explain them. Thus, the courts have more than 
 once refused to entertain the question, whether an excavation is a 
 mine,^ and as such not rateable to the relief of the poor ; but having 
 so far laid down a legal principle with reference to the subject, as to 
 decide that the method of working was to be considered, and not the 
 chemical or geological character of the produce,^ they have declined 
 to go further, and have left the magistrates in Sessions to apply to 
 the question, as one of fact, the information they possess, and their 
 Imowledge of the English language.^ So, it has been held, that 
 the jury must determine what constitutes such a representation of 
 part of a dramatic production, as to subject the person representing 
 it to penalties under the Act of 3 & 4 W. 4, c. 15.* But if a word 
 of doubtful import be used in an Act of Parliament, the judge ought 
 to explain its general meaning ; and, therefore, when, on the trial 
 of an issue whether a railway was passing through " a town," 
 within the meaning of the Eailway Clauses Consolidation Act, the 
 judge merely told the jury that the word " town " was to be under- 
 stood in its ordinary and popular sense, the court held that this 
 was a misdirection, and granted a new trial in consequence.^ So, 
 the jury will not be allowed to examine a record, for the purpose of 
 giving their opinion as to what word has been written above an 
 erasure ; for the inspection of a record is within the peculiar pro- 
 vince of the court.^ 
 
 ' If any question arises as to wtetlier a mine is a mine within the meaning 
 of the Miaes Regulation Acts, 1872, it " shall be referred to a Secretary of 
 State, whose decision thereon shall be final." 35 & 36 V., c. 76, § 70 ; and 
 c. 77, § 39. 
 
 2 See Darvill v. Eoper, 3 Drew. 303 ; Bell v. Wilson, 2 Drew. & Sm. 395 ; 
 35 L. J., Ch. 337, per Lds. Js., S. C. ; 1 Law Eep., Ch. Ap. 303, S. C. ; Dow. 
 Duch. of Cleveland v. Meyrick, 37 L. J., Ch. 125, per Malins, V.-C. 
 
 3 R. V. Sedgeley, 2 B. & Ad. 65; R. v. Brettell, 3 B. & Ad. 424; R. v. 
 Dunsford, 2 A. & E. 568 ; 4 N. & M. 349, S. C. " The Court of Quarter 
 Sessions are judges of law and fact. The appeal to the Queen's Bench is 
 confined to questions of law. The distinction, therefore, between the respective 
 provinces of the two courts is so far analogous to the distinction under dis- 
 cussion, as to justify the drawing of illustrations from cases of appeal." 12 Law 
 Mag. 64, n. 2. 4 pianch6 v. Braham, 4 Bing. N. C. 19. 
 
 ° Elliott V. South Devon Rail. Co., 2 Ex. R. 725. 
 
 " R. V. Hucks, 1 Stark. R. 522, per Ld. EUenborough. 
 
CHAP. III.] PROSECUTIONS FOE LIBEL. 61 
 
 § 46. On the rule of law, which intrusts the judge with the § 3i 
 interpretation of written instruments, an exception has been en- 
 grafted in certain cases, when the writing forms the subject of an 
 indictment or an action on the case, and the guilt or innocence of 
 the defendant depends upon the popular meaning of the language 
 employed. Thus, on a prosecution for libel, the legislature, — after 
 much acrimonious discussion between the judges on the one hand, 
 and the adTOcates of popular rights on the other,^ — ^has expressly 
 determined,^ that the question whether the particular publication 
 which is the subject of iuquiry, is of a libellous character, and is 
 calculated to injure the reputation of another, by exposing him to 
 hatred, contempt, or ridicule, is one upon which the jury must 
 exercise their judgment and pronounce their opinion, as a question 
 of fact. The judge, indeed, as a matter of advice to them in de- 
 ciding that question, may give his own opinion respecting the 
 nature of the publication, but is not bound to do so as a matter of 
 
 ' As to this celebrated dispute, see, in support of the claims of the judges, 
 R. V. Udall, 1 How. St. Tr. 1289 ; E. v. Woodfall, 20 id. 913, 918, 920, per 
 Ld. Mansfield ; 5 Burr. 2661, S. C. ; E. v. Dean of St. Asaph, 21 How. St. Tr. 
 1033, per Ld. Mansfield : and in support of the rights of the jury, E. v. Tutchin, 
 14 id. 1128, per Ld. Holt; E. v. Owen, 18 id. 1223, 1227 ; E. v. Dean of St. 
 Asaph, 21 id. 922, 971, arguments of Mr. Erskine, and 1040, per Willes, J..; 
 29 id. 49, per Ld. EUenhorough ; 1 Woodfall's Junius, 14, et seq., 163, 169 — 
 176. As to the proceedings in the House of Lords on the passing of the Lihel 
 Act, see 22 How. St. Tr. 294, 297. 
 
 ^ 32 G. 3, c. 60, § 1, declares and enacts that, on every trial of an indict- 
 ment or information for a libel, " the jury sworn to try the issue may give a 
 general verdict of guilty or not guilty upon the whole matter put in issue 
 upon such indictment or information ; and shall not be required or directed 
 by the court or judge, before whom such indictment or information shaU. be 
 tried, to find the defendant or defendants guilty, merely on the proof of the 
 publication by such defendant or defendants of the paper charged to be a 
 libel, and of the sense ascribed to the same in such indictment or informa- 
 tion." § 2 provides, that, " on every such trial, the court or judge, before 
 whom such indictment or information shall be tried, shall,* according to their 
 or his discretion, give their or his opinion and directions to the jury on the 
 matter in issue between the King and the defendant or defendants, in like 
 manner as in other criminal cases." § 3 provides, that a jury may find a 
 special verdict ; and § 4 reserves to defendants a right to move in arrest of 
 judgment. 
 
 * Semble, the word "shall" should here be interpreted as if the word 
 "may" had been used. See per Littledale, J., in Baylis v. Lawrence, 11 
 A. & E. 925. 
 
62 THREATENING LETTERS FOREIGN LAW. [PAET I. 
 
 law.^ The statute here noticed is strictly applicable to criminal 
 trials only, but, being a declaratory Act, its proYisions have been 
 adopted in civil actions for libel, and, for a series of years, it has 
 been the course for the judge, — in the event of his deciding that 
 the v?ords complained of are reasonably capable of bearing the 
 defamatory meaning ascribed to them by the innuendoes,^ — first to 
 give a legal definition of the ofi'ence, and then to leave the jury to 
 determine whether the writing complained of falls within that 
 definition or not.^ It is not, however, absolutely necessary that the 
 judge should explain what constitutes a libel, but he may leave the 
 whole question without reserve to the jury ; * though if they find a 
 verdict against the defendant, either on an indictment or an action, 
 the court will arrest the judgment, if the writing on the face of it 
 is not libellous/ 
 
 § 47. On indictments for writing threatening letters,® the re- § 39 
 spective duties of the judge and jury are not very clearly defined. 
 In some cases the jury have been permitted, upon examination of 
 the paper, to decide for themselves whether or not it contained a 
 menace.'^ In other cases, the question appears to have been ex- 
 clusively determined by the court ; ^ while on a few occasions the 
 opinions of the jury, and of the judges, have alternately been taken 
 on the point.^ 
 
 § 48. In regard to foreign laws,^'^ usages and customs, which we § 40 
 have already seen^^ cannot be judicially noticed, but must be 
 proved as facts in each particular case,^^ the distinction between 
 
 1 Per Parke, B., in Parmiter v. Coupland, 6 M. & "W. 108. 
 
 2 Hunt V. Goodlake, 43 L. J., C. P. 54 5 Sturt v. Blagg, 10 Q. B. 906, 908, 
 per Wilde, C. J. = Parmiter v. Coupland, 6 M. & W. 107, 108. 
 
 * Baylis v. Lawrence, 11 A. & B. 920. 
 
 * Heame v. StoweU, 12 A. & E. 719 ; 4 P. & D. 696, S. C. ; Goldstein v. 
 Foss, 6 B. & 0. 154 ; Parmiter v. Coupland, 6 M. & W. 106, per Alderson, B. 
 
 " See 24 & 25 V., c. 96, §§ 44, 46. 
 
 ' E. V. Girdwood, 1 Lea. 142 ; 2 East, P. C. 1120, S. 0. 
 
 » R. D. Smith, 1 Den. 510, 512 ; 2 C. & Kir. 882, 884, S. 0. ; R. v. Pickford, 
 4 0. & P. 227. 9 K. V. Robinson, 2 Lea. 755, 765. 
 
 '" As to colonial laws, see ante, § 9. " Ante 5 5. 
 
 12 Althougli a point of foreign law may have been proved and acted upon in 
 one court, another court wUl not rely upon the report of such a case, but will 
 
CHAP. III.] rOKEIGN LAW FOREIGN RULES OF EVIDENCE. 63 
 
 the functions of the judge and the jury does not yet appear to be 
 very clearly defined. It would seem, however, that while the 
 existence and abstract meaning of the law must, in general, he 
 determined by the jury on the testimony of the skilled witnesses,^ 
 it will be the duty of the court to decide, first, as to the competent 
 knowledge of the witnesses called ; ^ next, as to the admissibility 
 of the documents by which they seek to refresh their memory ; and 
 lastly,^ as to the special applicability of the law, when proved, to 
 the particular matter in controversy.* If, indeed, the admissibility 
 or inadmissibility of certain evidence depends on the existence 
 or interpretation of a foreign law, the proof should exclusively 
 be addressed to the court, as in other cases where questions re- 
 specting the admissibihty of evidence rests upon disputed facts.^ 
 Perhaps, also, as all matters of law are properly referable to the 
 court, and as the object of the proof of foreign law is to enable 
 the court to instruct the jury as to its bearing on the case in hand, 
 it will always be advisable for the judge to assist the jury in ascer- 
 taining what the law really is.^ 
 
 § 49. Before leaving the subject of foreign law, it will be § 41 
 important to notice, that the peculiar rules of evidence adopted 
 in one country, — whether established by the practice of its courts, 
 or enacted by the legislature for the government of those courts, 
 : — cannot be permitted to regulate the proceedings of courts in 
 another country, when transactions, which took place in the 
 former country, become the subject of investigation in the latter.'' 
 
 ^quiie fresh proof of the law, as a matter of fe,ct, on each particular occasion ; 
 M'Connick v. Gamett, 23 L. J., Ch. 717, per Knight-Bruce, L. J. ; 5 De Gex, 
 M. & G. 278, S. 0. 
 
 1 E. V. Picton, 30 How. St. Tr. 536—540, 864—870. 
 
 2 Bristow V. Sequeville, 5 Ex. R. 275. The whole of this subject will be 
 discussed, post, §§ 1423 — 1425. 
 
 3 See Sussex Peer. Case, 11 01. & Fin. 114—117 ; Ld. Nelson v. Ld. Brid- 
 port, 8 Beav. 527 ; Church v. Hubhart, 2 Cranch, 187, 236—238. 
 
 < Story, Confl. § 638. 
 
 5 Trasher v. Everhart, 3 Gill & John. 234, 242 ; Story, Confl. § 638, n. 3 ; 
 ante, § 23. 
 
 « Story, Confl. § 638, & n. 3 ; Mostyn v. Fabrigas, 1 Cowp. R. 174, per 
 Ld. Mansfield. 
 
 ' Clark V. Mullick, 3 Moo. P. C. R. 279, per Ld. Brougham. 
 
64 FOREIGN EULES OF EVIDENCE. [PART I. 
 
 The law of e-ridence is the lex fori which governs the courts. 
 Whether a witness is competent or not, — whether a certain matter 
 requires to he proved by writing or not,— whether certain evidence 
 proves a certain fact or not,— these, and the like questions, must 
 he determined, not lege loci contractus, hut by the law of the 
 country where the question arises, where the remedy is sought 
 to be enforced, and where the court sits to enforce it.^ The case 
 of Clark v. Mullick, which was decided before the law was altered 
 by the Evidence Amendment Act, of 1851,^ affords a striking 
 example of this rule. There, the assignees of a bankrupt under 
 an English fiat having brought an action in Calcutta against a 
 debtor of the bankrupt, and the pleas having put in issue the 
 bankruptcy and the assignment, it was held that the affirmative 
 of these issues could not be proved by producing copies of the 
 proceedings in the Bankruptcy Court, purporting to hear the seal 
 of that court, and to be signed by the Clerk of Enrolments ; for 
 although, by the statutes relating to bankruptcy, such evidence 
 was sufficient in English courts of justice, it was not at that time 
 admissible in India, as the Acts did not extend to that country.^ 
 Again, although by the Scotch law, all instruments prepared and 
 witnessed according to the provisions of the Act of 1681, are 
 probative writs, and may be given in evidence without any proof, 
 yet still, if it were required to prove one of these Scotch instru- 
 ments in an English court, its mere production would not suffice, 
 but it would be necessary to call one or other of the attesting 
 witnesses.* The case of Brown v. Thornton^ is another illustra- 
 tion of this rule. There, a charter-party had been entered into 
 at Batavia ; and, in accordance with the Dutch law which prevail* 
 in that colony, the contract had been written in the book of 
 the notary, and a copy, signed and sealed by him and counter- 
 signed by the governor of Java, had been delivered to each of the 
 parties. In the courts of Java, the contract is proved by producing 
 the notary's book; but in all other Dutch courts the copies are 
 
 ' Bain v. WHtehaven & Furness June. Eail. Co., 3 H. of L. Cas. 19, per 
 Ld. Brougham. 2 14 & 15 V., c. 99, §§ 11 & 19. 
 
 3 Clark V. Mullick, 3 Moo. P. C. R. 252, 280. 
 
 " Yates V. Thomson, 3 CI. & Fin. 577, 580, et seq., per Ld. Brougham. 
 5 6 A. & E. 185. 
 
CHAP. III.] FOREIGN BULKS OF EVIDENCE. 65 
 
 received as due evidence of the original. Under these circum- 
 stances, the plaintiff in an English court tendered his copy of the 
 charter-party, as evidence of the contract, hut the court held that 
 it was inadmissible, on the ground that English judges could not 
 adopt a rule of evidence from foreign courts. Several other cases 
 could be cited to the same effect ; ^ and in all, the distinction is 
 recognised between the cause of action, whieh must be judged of 
 according to the law of the country where it originated, and the 
 mode of proceeding, including of course the rules of evidence, 
 which must be adopted as it happens to exist in the country where 
 the action is brought.^ 
 
 1 Trimbey v. Vignier, 1 Bing. N. C. 151 ; Huber v. Steiner, 2 Bing. N. C. 
 202 ; Britisli Linen Co. v. Drummond, 10 B. & C. 903 ; Appleton v. Ld. 
 Braybrook, 2 Stark. R. 6 ; 6 M. & Sel. 34, S. C. ; Black v. Ld. Braybrook, 
 2 Stark. R. 7 ; 6 M. & Sel. 39, S. C. ; Don v. Lippmann, 5 CI. & Fin. 1, 13— 
 17 ; LeroTix v. Brown, 12 Com. B. 801 ; Finlay v. Finlay, 31 L. J., Pr. & 
 Mat. 149. 
 
 ^ Mostyn v. Fabrigas, 1 Smith, L. C. 641. See also Story, Confl. §§ 556, 
 et seq[. & 629—636. 
 
66 DISPOSITION TO BELIEF INSTINCTIVE. [PAKT I. 
 
 CHAPTEE IV. 
 
 THE GROUNDS OF BELIEF. 
 
 § 60.1 -y^E proceed now to a brief consideration of tlie General § 42 
 Nature and Principles of Evidence. No inquiry is here proposed 
 into the origin of human knowledge ; it being assumed, on the 
 authority of approved writers, that all that men know is referable, 
 in a philosophical view, to perception and reflection. But, in fact, 
 the knowledge acquired by an individual through his own per- 
 ception and reflection, is. but a small part of what he possesses; 
 much of what we are content to regard and act upon as knowledge, 
 having been acquired through the perception of others.^ It is not 
 easy to conceive, that the Supreme Being, whose wisdom is so 
 conspicuous iu all his works, constituted man to believe only 
 upon his own personal experience ; since, in that case, the world 
 could neither be governed nor improved ; and society must remain 
 in the state in which it was left by the first generation of men. 
 On the contrary, during the period of childhood we believe 
 implicitly almost aU that is told us; and we thus are furnished 
 with information, which we could not otherwise obtain, but which 
 is necessary at the time for our present protection, or as the 
 means of future improvement. This disposition to confide in 
 the veracity of others, and to believe what they say, may be termed 
 instinctive. At an early period, however, we begin to find that of 
 the things told to us some are not true ; and thus our implicit 
 reliance on the testimony of others is weakened ; first, in regard 
 to particular things, in which we have been deceived ; then, in 
 regard to persons, whose falsehoods we have detected ; and, as 
 these instances multiply upon us, we gradually become more and 
 more distrustful of statements made to us, and learn by experience 
 the necessity of testing them by certain rules." ^ "Confidence," 
 exclaimed Lord Chatham, on a memorable occasion, " is a plant of 
 
 1 Gr. Ev. § 7, nearly veAatim. ^ Id. Part 2, § 3, p. 73. 
 
 - Abercr. on Intell. Pow., Part 2, p. 42. 
 
CHAP. IV.] INSTINCTIVE TENDENCY TO BELIEF. 67 
 
 slow growth in an aged bosom ; " and indeed, it may be generally 
 observed, that, as our ability to obtain knowledge by other means 
 increases, our instinctive and indiscriminate reliance on testimony 
 diminishes, by yielding to a more rational belief.^ StUl, in every 
 
 ' * Gamb. Guide, 87 ; M'Kinnon, PM. of Ev. 40. This subject is treated 
 more largely by Dr. Reid ia Ms profound Inquiry into the Human Mind, c. 6, 
 § 24, pp. 196, 19Y, of his collected Works, in these words : — " The wise and 
 beneficent Author of Nature, who intended that we should be social creatures, 
 and that we should receive the greatest and most important part of our knowledge 
 by the information of others, hath, for these purposes, implanted in our nature 
 two principles, that tally with each other. The first of these priaciples is a 
 propensity to speak truth, and to use the signs of language, so as to convey our 
 real sentiments. This principle has a powerful operation, even in the greatest 
 liars ; for where they lie once they speak truth a hundred times. Truth is 
 always uppermost, and is the natural issue of the mind. It requires no art or 
 training, no inducement or temptation, but only that we yield to a natural 
 impulse. Lying, on the contrary, is doing violence to our nature ; and is never 
 practised, even by the worst men, without some temptation. Speaking truth 
 is like using our natural food, which we would do from appetite, although it 
 answered no end ; but lying is like taking physic, which is nauseous to the 
 taste, and which no man takes but for some end, which he cannot otherwise 
 attain. If it should be objected, that men may be influenced by moral or 
 political considerations to speak truth, and therefore, that their doing so is no 
 proof of such an original principle as we have mentioned ; I answer, first, that 
 moral or political considerations can have no influence, until we arrive at years 
 of understanding and reflection ; and it is certaia from experience, that chil- 
 dren keep to truth invariably, before they are capable of being influenced by 
 such considerations. Secondly, when we are influenced by moral or political 
 considerations, we must be conscious of that influence, and capable of perceiving 
 it upon reflection. Now, when I reflect upon my actions most attentively, I 
 am not conscious, that in speaking truth I am influenced on ordinary occasions 
 by any motive moral or political. I find, that truth is always at the door of 
 my lips, and goes forth spontaneously, if not held back. It requires neither 
 good nor bad intention to bring it forth, but only that I be artless and unde- 
 signing. There may indeed be temptations to falsehood, which would be too 
 strong for the natural principle of veracity, unaided by priaciples of honour 
 or virtue ; but where there is no such temptation, we speak truth by instinct ; 
 and this instinct is the principle I have been explaining. By this instinct, a 
 real connection is formed between our words and our thoughts, and thereby the 
 former become fit to be signs of the latter, which they could not otherwise be. 
 And although this connection is broken in every instance of lying and equivo- 
 cation, yet these instances being comparatively few, the authority of human 
 testimony is only weakened by them, but not destroyed. Another original 
 
 * Gr. Ev. § V, n. verbatim.. 
 
 r 2 
 
68 INSTINCTIVE TENDENCY TO BELIEF. [PART I. 
 
 period of life, and in every state of intellectual culture, man is 
 instinctively more prone to believe than to disbelieve the testimony 
 of others, and this disposition towards credulity may be regarded 
 
 principle, implanted in us by the Supreme Being, is a disposition to confide in 
 tlie veracity of others, and to believe what they tell us. This is the counter- 
 part to the former : and as that may be called the principle of veracity, we 
 shall, for want of a proper name, call this the principle of credulity. It is 
 unlimited in children until they meet with instances of deceit and falsehood ; 
 and it retains a very considerable degree of strength through life. If nature 
 had left the mind of the speaker in equUibrio, without any inclination to the 
 side of truth more than to that of fiilsehood, children would lie as often as they 
 speak truth, until reason was so far ripened, as to suggest the imprudence of 
 lying, or conscience, as to suggest its immorality. And if nature had left the 
 mind of the hearer in equilibrio, without any inclination to the side of belief 
 more than to that of disbelief, we should take no man's word, until we had 
 positive evidence that he spoke truth. His testimony would, in this case, have 
 no more authority than his dreams, which may be true or false : but no man 
 is disposed to believe them, on this accoimt, that they were dreamed. It is 
 evident, that, in the matter of testimony, the balance of human judgment is by 
 nature inclined to the side of belief ; and turns to that side of itself, when there 
 is nothing put into the opposite scale. If it was not so, no proposition, that is 
 uttered in discourse would be believed, until it was examined and tried by 
 reason : and most men would be unable to find reasons for believing the thou- 
 sandth part of what is told them. Such distrust and incredulity would deprive 
 us of the greatest benefits of society, and place us in a worse condition than 
 that of savages. Children, on this supposition, would be absolutely incredulous, 
 and therefore absolutely incapable of instruction ; those who had little know- 
 ledge of human life, and of the manners and characters of men, would be in 
 the next degree incredulous ; and the most credulous men would be those of 
 greatest experience, and of the deepest penetration ; because, in many cases, 
 they would be able to find good reasons for believing testimony, which the 
 weak and the ignorant could not discover. In a word, if credulity were the 
 effect of reasoning and experience, it must grow up and gather strength, in the 
 same proportion as reason and experience do. But if it is the gift of nature, it 
 wiU. be strongest in childhood, and limited and restrained by experience ; and 
 the most superficial view of human life shows, that the last is really the case, 
 and not the first. It is the intention of nature, that we should be carried in 
 arms before we are able to walk upon our legs ; and it is likewise the intention 
 of nature, that our belief should be guided by the authority and reason of 
 others, before it can be guided by our own reason. The weakness of the infant, 
 and the natural affection of the mother, plainly indicate the former ; and the 
 natural credulity of youth and authority of age as plainly indicate the latter. 
 The infant, by proper nursing and care, acquires strength to walk without support. 
 Reason hath likewise her infancy, when she must be carried in arms ; then she 
 leans entirely upon authority, by natural instinct, as if she was conscious of her 
 own weakness; and without this support, she becomes vertiginous. When 
 
CHAP. IV.] FAITH IN TESTIMONY AS SANCTIONED BY EXPERIENCE. 69 
 
 as a fundamental principle of our moral nature, implanted in us 
 by the Almighty for the wisest and most beneficent purposes. As 
 such it constitutes the general basis upon which all eAddence may 
 be said to rest. 
 
 § 61.^ Subordinate to this paramount and original principle, it § 43 
 may, in the second place, be observed, that evidence rests upon our 
 faith in hwrmm testimony, as sanctioned by experience; that is, 
 upon the generally experienced truth of the statements on oath of 
 men of integrity, having capacity and opportunity for observation, 
 and without apparent influence from passion or interest to pervert 
 the truth. This belief is strengthened by our knowledge of the 
 narrator's reputation for veracity and intelligence, by the absence of 
 conflicting testimony, and by the presence of that which is corrobo- 
 rating and cumulative.* 
 
 § 52. It is obvious, that, in the hasty progress of a trial at Nisi § 44 
 Prius, it is frequently difficult, and sometimes impossible, to 
 
 brougM to matiuity by proper cultvire, she begins to feel her own strength, and 
 leans less upon the reason of others ; she learns to suspect testimony in some 
 cases, and to disbelieve it in. others ; and sets bounds to that authority to which 
 she was at first entirely subject. But still, to the end of Ufe, she finds a neces- 
 sity of borrowing light from testimony, where she has none within herself, and 
 of leaning, in some degree upon the reason of others, where she is conscious of 
 her own imbecOity. And, as in many instances Reason, even in her maturity, 
 borrows aid from testimony ; so in others she mutually gives aid to it, and 
 strengthens its authority. For, as we find good reason to reject testimony in 
 some cases, so in others we find good reason to rely upon it with perfect security 
 in our most important concerns. The character, the number, and the disin- 
 terestedness of witnesses, the impossibility of collusion, and the incredibility of 
 their concurring in their testimony without collusion, may give an irresistible 
 strength to testimony, compared to which its native and intrinsic authority 
 is very inconsiderable." 
 
 ' Gr. Ev. § 10, nearly verbatim. 
 
 2 Archbishop Whately, in his admirable jeu d'esprit, entitled " Historic 
 Doubts relative to Napoleon Buonaparte," has clearly stated the main tests of 
 human veracity. " I suppose," says he, " it wiU not be denied that the three 
 following are among the most important points to be ascertained, in deciding 
 on the credibility of witnesses ; first, whether they have the means of gaining 
 correct information ; secondly, whether they have any interest in concealing 
 truth, or propagating felsehood ; and, thirdly, whether they agree in their 
 testimony."— P. 14, 6th ed. 
 
70 DEMEANOUE OF WITNESSES TESTS OF TKUTH. [PART I. 
 
 ascertain, with anything like certainty, what characters the wit- 
 nesses respectively deserve for honesty and intelligence, and how 
 far they are actuated by interested, malignant, or other improper 
 motives. On these heads considerable doubt must almost always 
 exist ; although a rigid cross-examination, when skilfully applied,^ 
 will certainly throw much light upon the subject ; and a careful 
 attention to the demeanour of the witness will furnish a no less 
 valuable guide. Thus, while simplicity, minuteness, and ease 
 are the natural accompaniments of truth, the language of witnesses 
 coming to impose upon the jury is usually laboured, cautious, and 
 indistinct.^ So, when we find a witness over-zealous on behalf of 
 his party ; exaggerating circumstances ; answering without waiting 
 to hear the question ; forgetting facts wherein he would be open 
 to contradiction ; minutely remembering others, which he knows 
 cannot be disputed;^ reluctant in giving adverse testimony; re- 
 plying evasively or flippantly ; * pretending not to hear the 
 question, for the purpose of gaining time to consider the effect of 
 his answer ; affecting indifference ; or, often vowing to God, and 
 protesting his honesty ; we have indications, more or less con- 
 clusive, of insincerity and falsehood.^ On the other hand, in the 
 testimony of witnesses of truth there is a calmness and simplicity ; 
 a naturalness of manner ; an unaffected readiness and copiousness 
 of detail, as well in one part of the narrative as another ; and an 
 evident disregard of either the facility or difficulty of vindication or 
 detection.^ 
 
 § 53. Besides these tests of truth, which are obviously of value § 45 
 in fixing what amount of credit is due to each individual witness, 
 
 ' In the great Tichborne trial of 1871, the cross-examination of Mr. Baigent 
 ■by Mr. Hawkins should be carefully studied, as being the best modem example 
 of forensic ability ia that Kne. 
 
 = Channing, Ev. of Christ., 3rd vol. of Works, 356. 
 " For, when we risk no contradiction. 
 It prompts the tongue to deal in fiction." 
 
 ^ , Gat's Fables, Part I., Fable x. 
 
 _ AU persons who have been accustomed to see witnesses in a court of 
 justice know, that those who are stating falsehoods are extremely apt to give 
 flippant and impertinent answers." Per Mr. Brougham on the Queen's trial ; 
 1 Ld. Br. Sp. 159. 
 
 ' 1 St. Ev. 547. c Qrggj^i^ Q^ Tggj^ Qf ^^^^^ ^ ^Q_ 
 
CHAP. IV.] TESTIMONY OF ENSLAVED PEOPLE OF WOMEN. 71 
 
 certain general rules must be borne in mind, as tending to shadow 
 forth, rather than define, the relative merits of particular classes of 
 witnesses. Thus, it has been justly observed, that " a propensity 
 to lying has been always, more or less, a peculiar feature in the 
 character of an enslaved people, — accustomed to oppression of every 
 kind, and to be called upon to render strict account of every trifle 
 done, not according to the rules of justice, but as the caprice of 
 their masters may suggest ; — ^it is little to be wondered at, if a lie 
 is often resorted to as a supposed refuge from punishment, and that 
 thus an habitual disregard is engendered."^ This passage is cited, 
 as accounting in some measure for the lamentable neglect of truth, 
 which is evinced by most of the nations of India, by the subjects of 
 the Czar, and by many of the peasantry in Ireland.^ 
 
 § 54. Again, as the chief motive for exaggeration springs from § 46 
 an innate vain love of the marvellous,^ and as this love, like all 
 other, is most remarkable in the softer sex,* a prudent man will, 
 in general, do well to weigh with some caution the testimony of 
 female witnesses. This care is all the more necessary, in conse- 
 quence of the extensive and dangerous field of falsehood which is 
 opened up by mere exaggeration ; for, as truth is made the ground- 
 work of the picture, and fiction lends but light and shade, it often 
 requires more patience and acuteness than most men possess, or 
 are willing to exercise, to distinguish fact from fancy, and to repaint 
 the narrative in its proper colours. ^ In short, the intermixture of 
 
 ' Bp. of Tasmania's Lect. on Christ. CatecMsm, 519. 
 
 ^ Thie Antiquarian loves to trace the Irish blood from a Caxthaginian stock. 
 
 ^ Bp. of Tasmania's Lect. on Christ. Catechism, 522. 
 
 * The woman of Samaria affords a striking example of this proneness to ex- 
 aggerate. "When our Saviour told her she had had five husbands, she went 
 into the city, sajdng, " Come, see a man, which told me all things that ever I 
 did." 4th ch. of St. John, v. 29. 
 
 ' Bp. of Tasmania's Lect. on Christ. Catechism, 522. The difficulty of 
 detecting falsehood which has been engrafted on truth has been noticed by 
 Alfred Tennyson, in his charming poem of the " Grandmother : " — 
 
 " and the parson . . . said Kkewise, 
 That a lie which is half a truth is ever the. blackest of lies, 
 That a lie which is all a lie may be met and fought with outright. 
 But a lie which is part a truth is a harder matter to fight." 
 Mr. Brougham commented on the same subject with great ability on the 
 
72 TESTIMONY OF WOMEN OF CHILDEEN. [PkUT I. 
 
 truth disarms the suspicion of the candid, and sanctions the ready 
 beUef of the malevolent. ^ Having pointed out this proneness to 
 exaggerate as a feminine weakness, it is only just to add, that m 
 other respects, the testimony of women is at least deserving of 
 equal credit to that of men. In fact, they are in some respects far 
 superior witnesses ; for first, they are, in general, closer observers 
 of events than men ; next, their memories, being less loaded with 
 matters of business, are usually more tenacious ; and lastly, they 
 often possess unrivalled powers of simple and unaffected narration.^ 
 
 § 55. Sir William Blackstone appears to have thought,^ that § 47 
 less credit was due to the testimony of a child than to that of an 
 adult ; but reason and experience scarcely warrant this opinion. 
 In childhood, the faculties of observation and memory are usually 
 more active than in after life, while the motives of falsehood are 
 then less numerous and less powerful. The inexperience and 
 artlessness which, in a great measure, must accompany tender 
 years, render a child incapable of sustaining consistent perjury, 
 while the same causes operate powerfully in preventing his true 
 testimony from being shaken by the adroitness of counsel. Not 
 comprehending the drift of the questions put to him in cross- 
 examination, his only course is to answer them according to the 
 
 Queen's trial. " If an individual," said he, " were to invent a story entirely, — 
 if lie were to form it completely of falsehoods, the result would be his iaevit- 
 ahle detection ; but if he build a structure of falsehood on the foundation of 
 a little truth, he may raise a tale which, with a good deal of drilling, may put 
 an honest man's life, or an illustrious Princess' reputation, in jeopardy." 1 Ld. 
 Br. Sp. 147. And, again : " The most effectual way, because the safest, of 
 laying a plot, is not to swear too hard, is not to sweai too much, or to come too 
 directly to the point ; but to lay the foundation in existing facts and real cir- 
 cumstances, — to knit the false with the true, — to interlace reality with fiction, 
 —to build the fanciful fabric upon that which exists in nature,— and to escape 
 detection by taking most especial care, as they have done here, never to have 
 two witnesses to the same facts, and also to make the facts as moderate, and as 
 little offensive, as possible." 1 Ld. Br. Sp. 215. 
 
 ' Bp. of Tasmania's Lect. on Christ. Catechism, 522. 
 
 ^ Take, for instance, the Letters of Madame de Si^vignfi, or Lady Mary 
 Wortley Montagu, which can only he rivalled, if at all, by those of the effemi- 
 nate Ld. Orford. 
 
 3 4 Bl. Com. 214. 
 
CHAP. IV.] TESTIMONY OF FOREIGNERS OF POLICEMEN. 73 
 
 fact. Thus, if he speak falsely, he is almost inevitably detected ; 
 but if he be the witness of truth, he avoids that imputation of 
 dishonesty, which sometimes attaches to older witnesses, who, 
 ■ though substantially telling the truth, are apt to throw discredit 
 on their testimony, by a too anxious desire to reconcile every 
 apparent inconsistency. 
 
 § 56. The testimony of foreigners and of others, who, Kving out j 43 
 of the jurisdiction, are brought from a distance to the place of trial, 
 often requires to be scrutinised with more than common caution ; 
 for, as such persons speak before a tribunal, which ordinarily knows 
 no more of them than they care for it, whose threat they have no 
 reason to fear, and whose good opinion they utterly disregard, they 
 are obviously far less hkely than witnesses Kving on the spot to be 
 influenced by the dread of having their falsehoods exposed.^ The 
 detection of perjury, in their case, involves but little loss of cha- 
 racter, and no real danger of punishment. A dishonest foreigner, 
 too, who has attained a tolerable knowledge of the language, has 
 always this advantage over a native, that he may modestly conceal 
 his proficiency as a linguist, and avail himself of the assistance of an 
 interpreter, which gives him an opportunity of preparing with due 
 caution his answer to any inconvenient question, while the inter- 
 preter, aU unheeded, is performing the superfluous part of furnish- 
 ing him with a needless translation. ^ 
 
 § 57. With respect to policemen, constables, and others employed § 49 
 in the suppression and detection of crime, their testimony against 
 a prisoner should usually be watched with care ; not because they 
 intentionally pervert the truth, but because their professional zeal, fed 
 as it is by an habitual intercourse with the vicious, and by the frequent 
 contemplation of human nature in its most revolting form, almost 
 necessarily leads them to ascribe actions to the worst motives, and to 
 give a colouring of guilt to facts and conversations, which are, 
 
 ' Per Mr. Brougliam on the Queen's trial. 1 Ld. Br. Sp. 126. See id 
 p. 241. 
 
 ' Id. 168. See E. v. Burke, 8 Cox, 44, 47, cited post, § 1444. 
 
74 SKILLED WITNESSES— COINCIDENCES IN TESTIMONY. [PART I 
 
 perhaps, in themselves consistent with perfect rectitude. ^ " That 
 all men are guilty, till they are proved to be innocent," is naturally 
 the creed of the police ; but it is a creed which finds no sanction in 
 a court of justice. As a set-off to this tendency on the part of the 
 police to regard conduct in the worst point of view, it must in 
 fairness be stated, that, in every other respect, the general mode in 
 which they give their testimony is unimpeachable ; and that, except 
 when blinded by prejudice, they may well challenge a comparison 
 with any other body of men in their rank of life, as upright, intel- 
 ligent, and trustworthy witnesses. 
 
 § 58. Perhaps the testimony which least deserves credit with a § 5" 
 jury is that of skilled witnesses. These gentlemen are usually 
 required to speak, not to facts, but to opinions ; and when this is 
 the case, it is often quite surprising to see with what facility, and 
 to what an extent, their views can be made to correspond with the 
 wishes or the interests of the parties who call them. They do not, 
 indeed, wilfully misrepresent what they think : but their judgments 
 become so warped by regarding the subject in one point of view, 
 that, even when conscientiously disposed, they are incapable of ex- 
 pressing a candid opinion. Being zealous partisans, their behef 
 becomes synonymous with Faith as defined by the Apostle,^ and it 
 too often is but "the substance of things hoped for, the evidence of 
 things not seen." To adopt the language of Lord Campbell, 
 " skilled witnesses come with such a bias on their minds to support 
 the cause in which they are embarked, that hardly any weight 
 should be given to their evidence.^ " 
 
 § 59. A third ground of the credibility of evidence is afforded § 51 
 by the exercise of reason upon the effect of coincidences in the tes- 
 timony of independent witnesses. These coincidences, when suffi- 
 ciently numerous, and presented in the shape of undesigned corres- 
 pondency, or incidental allusion, necessarily produce a prodigious 
 effect in enforcing belief; because, if the witnesses had concerted a 
 plot, the coincidences would almost inevitably have been commuted 
 
 1 See post, § 68. 2 11 Hebrews, 1. 
 
 2 Tracy Peer. 10 CI. & Fin. 191. See post, § 68. 
 
CHAP. IV. COINCIDENCES IN TESTIMONY. 
 
 75 
 
 by cross-examination into contradictions/ and if collusion is ex- 
 cluded, and no deception has been practised on the witnesses, the 
 harmony in their evidence cannot be explained upon any other 
 hypothesis than that the statements severally made are true. Each 
 witness taken singly may be notorious for lying ; but the chances 
 against their all agreeing by accident in the same lie may be so 
 great, as to render the agreement morally impossible.^ On this 
 subject it has been profoundly remarked, that " in a number of con- 
 current testimonies, where there has been no previous concert, there 
 is a probability distinct from that which may be termed the sum of 
 the probabilities resulting from the testimonies of the witnesses ; a 
 probability which would remain, even though the witnesses were of 
 such a character as to merit no faith at all. This probability arises 
 purely from the concurrence itself. That such a concurrence should 
 spring from chance, is as one to infinite ; that is, in other words, 
 morally impossible. If, therefore, concert be excluded, there re- 
 mains no cause but the reality of the fact."^ 
 
 § 60. So, also. Lord Mansfield justly observed on one occasion, § 51 
 " It is objected that the books [Keble's and Freeman's Eeports] 
 are of no authority ; but if both the reporters were the worst that 
 ever reported, if substantially they report a case in the same way, 
 it is demonstration of the truth of what they report, or they could 
 not agree."* The word " substantially " here used is highly im- 
 portant, with a view to the question of collusion, since it is scarcely 
 possible that several independent witnesses should tell precisely the 
 same tale, without any variation. Dr. Paley, who has treated this 
 subject with great ability in his Evidences of Christianity, states, 
 
 1 On this subject Mr. Brougham thus expressed himself on. the Queen's 
 trial : — " Why were there never two witnesses to the same fact ? Because it is 
 dangerous ; because, when you are making a plot, you should have one witness 
 to a fact, and another to a confirmation ; have some things true, which unim- 
 peachable evidence can prove ; other things fabricated, without which the true 
 would be of no avail, — but avoid calling two witnesses to the same thing at 
 the same time, because the cross-examination is extremely likely to make them 
 contradict each other." 1 Ld. Br. Sp. 215. 
 
 2 Aberor. on InteU. Pow., Part 2, § 3, p. 91. 
 
 ' Campbell's Philos. of Rhetoric, ch. v., b. 1, Part 3, p. 125 ; Whately's 
 Rhetoric, Part 1, ch. 2, § 4, pp. 58, 59. * R. v. Genge, 1 Cowp. 16. 
 
76 PROBABILITY OF EVIDENCE. [PART I. 
 
 that " the usual character of human testimony is substantial truth 
 under circumstantial vajriety. 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 are 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." ^ These last observations apply with 
 almost overwhelming force, when the facts deposed to consist of 
 conversations, or of a series of trifling and unimportant events, and 
 the testimony is given after the lapse of a considerable interval of 
 time.^ 
 
 § 61.^ Fourthly, in receiving the knowledge of facts from the testi- § ^2 
 mony of others, men are much influenced by their accordance with facts 
 previously known or believed ; and this constitutes what is termed 
 their probability. Statements, thus probable, are received upon 
 evidence much less cogent than is required for the belief of those 
 which do not accord with previous knowledge ; but while such state- 
 ments are more readily received, and justly relied upon, care should 
 be taken lest all others be unduly distrusted. While unbounded 
 credulity is the attribute of weak minds, which seldom think or 
 reason at all, — quo magis nesciunt, eo magis admirantur, — indis- 
 criminate scepticism belongs only to those who, affecting to make 
 their own knowledge and observation the exclusive standard of pro- 
 bability, forget that they are liable to be misled even by their own 
 senses.* Such persons, therefore, if they intend to sustain a truly con- 
 sistent character, should act likeMoUere's Docteur, in "LeMariage 
 Force," who, in answer to Sganarelle's statement that he had come 
 to see him, repHed, " Seigneur Sganarelle, changez, s'il vous plait. 
 
 ' Part 3, ch. 1, p. 158. 
 
 ^ See further on this interesting subject, Greenl. on Test of Evanc 
 §§ 34-36. 
 
 ^ Gr. Ev. § 8, in great part. 
 
 ^ Abercr. on InteU. Pow., Part 2, § 3, p. 74. Channing on Ev. of Revealed 
 Relig., 3d vol. of Works, p. 116, obseives-"All my senses have sometimes 
 given false reports.'' 
 
CHAP. lY.] ACCORDANCE WITH PREVIOUS KNOWLEDGE. 77 
 
 cette fa9on de parler. Notre philosophe ordonne de ne point enoncer 
 de proposition decisive, de parler de tout avec incertitude, de sus- 
 pendre toujours son jugement ; et par cette raison vous ne pouvez 
 pas dire, je suis venu, mais, il mesemble que je suisvenu."^ Scep- 
 tical philosophers, however, inconsistently enough with their own 
 principles, yet true to the nature of man, continue to receive a large 
 portion of their knowledge upon testimony, derived, not from their 
 own experience, but from that of other men ; and this, even when 
 it is at variance with much of their own personal observation. 
 Thus they receive with confidence the testimony of the historian in 
 regard to the occurrences of ancient times ; that of the naturalist 
 and the traveller, in regard to the natural history and civil condition 
 of other countries ; and that of the astronomer, respecting the hea- 
 venly bodies ; facts which, upon the narrow basis of their own 
 " firm and unalterable experience," on which Mr. Hume so much 
 relies, they would be bound to reject, as wholly unworthy of belief.^ 
 
 § 62. Still, it is not the miscalled philosopher alone, who is too § 53 
 ready to lend an academic faith to a narrative of facts which do not 
 strictly accord with preconceived opinions, mistaken for knowledge. 
 In all ranks and conditions of life, persons of this stamp abound, 
 and the errors, to which their habits of distrust expose them, are at 
 times sufficiently ridiculous. Thus, the king of Siam rejected the 
 testimony of the Dutch ambassador, that, in his country, water was 
 sometimes congealed into a solid mass ; for it was utterly repugnant 
 to his own experience.^ In like manner, the marvellous but true 
 stories narrated by the Abyssinian traveller Bruce, were long con- 
 sidered by his countrymen as mere fictions ; and so late as the year 
 1825, the evidence given by the great railway engineer, George 
 Stephenson, before a parliamentary committee, was much impaired 
 by his having ventured an opinion, that steam-carriages might pos- 
 sibly travel on railroads twelve miles an hour.* A contemplation of 
 the instances here given, and of others which will readily occur to 
 
 > Sofene 8. 
 
 2 Abercr. on Intell. Pow., Part 2, § 3, pp. 79, 80. 
 
 ' Id. p. 75. 
 
 /'.Life of George Steplaensoii, by Samuel Smiles, 1857, oil. 19. 
 
78 CIECUMSTANTIAL EVIDEKCE. [PAET I. 
 
 the reader, naturally suggests two reflections; first, that, with 
 man's finite knowledge, he should be slow to reject a narrative as 
 incredible, merely because it is beyond, or even contrary to, his own 
 very limited experience ; and next, that progress in knowledge is 
 not confined, in its results, to the siniple facts ascertained, but has 
 also an extensive influence in enlarging the understanding for the 
 further reception of truth, and in setting it free from many of the 
 prejudices which influence men, whose minds are limited by a 
 narrow field of observation. Thus, Archimedes, deeply imbued as 
 he was with science, might have believed an account of the inven- 
 tion and wonderful powers of the steam-engine, which unscientific 
 Englishmen of the last century would have rejected as incredible 
 and absurd.^ 
 
 § 63.^ k fifth basis of evidence is the known and experienced § 54 
 connection subsisting between collateral facts or circumstances, 
 satisfactorily proved, and the fact in controversy. This is merely 
 the legal application, in other terms, of a process famihar in natural 
 philosophy, showing the truth of an hypothesis by its coincidence 
 with existing phenomena. The connections and coincidences in 
 question may be either physical or moral ; and the knowledge of 
 them is derived from the known laws of matter and motion, from 
 animal instincts, and from the physical, intellectual, and moral con- 
 stitution and habits of man.^ Their force, which will be considered 
 hereafter,* depends on their sufficiency to exclude every other hypo- 
 thesis but the one under consideration. Thus, the possession of 
 goods recently stolen, accompanied with personal proximity in point 
 of time and place, and inability in the party charged, to show how 
 he came by them, would seem naturally, though not necessarily,^ to 
 
 ^ Abercr. on Intell. Pow., Part 2, § 3, pp. 75, 76. So Voltaire shrewdly 
 observes : — "lA oil le vulgaire rit, le pMlosoplie admire ; et il rit oil le vulgaire 
 ouYie de grands yenx stupides d'^tonnement." Vol. 42, p. 142. 
 
 2 Gr. Ev. § 11, verbatim. 
 
 3 For an amusing example of a fact proved by a long chain of circumstantial 
 evidence, see Voltaire's Zadig, ch. 3. ' Post, §§ 64 — 69. 
 
 » Joseph's cup was found in Benjamin's sack, Gen. c. 44, v. 1 — 17. The 
 amusing story of the Hunchback, in the Arabian Nights, and the no less 
 diverting story of the Baked Head, in Mr. Morier's Hajji Baba, both turn on 
 
CHAP. IV.] CIECXJMSTAKTIAL EVIDEKCE. 79 
 
 exclude every other hypothesis, but that of his guilt. But the pos- 
 session of the same goods at another time and place would warrant 
 no such conclusion, as it would leave room for the hypothesis of 
 their having been lawfully purchased in the course of trade. Similar 
 to this, in principle, is the rule of noscitur a sociis, according to 
 which the meaning of certain words in a written instrument is 
 ascertained by the context. 
 
 § 64.^ In considering this subject, it must always be borne in § 55 
 mind, that in the actual occurrences of human Hfe nothing is incon- 
 sistent. Every event, which actually transpires, has its appropriate 
 relation and place in the vast complication of circumstances of 
 which the affairs of men consist ; it owes its origin to those which 
 have preceded it ; it is intimately connected with many others which 
 occur at the same time and place, and often with those of remote 
 regions ; and, in its turn, it gives birth to a thousand others which 
 succeed.^ In all this system of inter-dependence perfect harmony 
 prevails ; so that a man can hardly invent a story, which, if 
 closely compared with all the actual contemporaneous and suc- 
 cessive occurrences, may not be shown to be false. From these 
 causes, minds enlarged by long and matured experience, and 
 close observation of the conduct and afiiairs of men, may, with a 
 rapidity and certainty approaching to intuition, perceive the elements 
 of truth or falsehood in the face itself of the narrative, without any 
 regard to the narrator. Thus, an experienced judge may instantly 
 discover the falsehood of a witness, whose story an inexperienced 
 jury might be inclined to believe. But though the mind, in these 
 cases, seems to have acquired a new power, it is properly to be re- 
 ferred only to experience and observation. 
 
 § 65.^ In trials of fact, it will generally be found that the factum § 55 
 probandum is either directly attested by those who speak from their 
 own actual and personal knowledge of its existence, or it is to be 
 
 an erroneous presumption of guilt arising from recent possession. See, too, 
 Smollett's iloderick Random, ok xxi. 
 
 ' Gr. Ev. § 12, in great part. 
 
 2 1 St. Ev. 560 ; 3 Channing's Works, 133 340. 
 
 = Gr. Ev. § 13, in great part. 
 
80 DIRECT AND CIRCUMSTANTIAL EVIDENCE. [PAET I. 
 
 inferred from other facts, satisfactorily proved. In the former case, 
 the proof rests upon the second, third, smd fourth grounds of behef 
 before mentioned ; that is, it depends partly, upon faith in human tes- 
 timony, as sanctioned by experience ; — which faith will be increased 
 or diminished in proportion to the apparent honesty and intelligence 
 of the witnesses, and their opportunities for observation ; — partly, 
 upon the exercise of reason on the consistency of the narratives 
 given by different witnesses ;— and here the value of the testimony 
 will vary, according to the number of the deponents, and the 
 apparent absence or presence of collusion ; — and partly, upon the 
 conformity of the testimony with experience. In the latter case,^ — 
 that is, when the fact in dispute is to be inferred from other facts 
 satisfactorily estabUshed, — the proof rests upon the same grounds, 
 with the addition of the experienced connection between the col- 
 lateral facts thus proved, and the fact which is in controversy ; 
 which connection constitutes thejifth basis of evidence before stated. 
 The facts proved are in both cases directly attested. In the former 
 case, the proof appUes immediately to the factum prohandum, 
 without any intervening process, and it is therefore called direct or 
 positive testimony. In the latter case, as the proof applies imme- 
 diately to collateral facts, supposed to have a connection, near or 
 remote, with the fact in controversy, it is termed circumstantial; and 
 sometimes, but not with entire accuracy, presumptive. Thus, if a 
 witness testifies that he saw A. inflict a mortal wound on B., of 
 which he instantly died, this is a case of direct evidence ; and, giving 
 to the witness the credit to which men are generally entitled, the 
 crime is satisfactorily proved. If a witness testifies that a deceased 
 person was shot with a pistol, and the wadding is found to be part of 
 a letter addressed to the prisoner, the residue of which is discovered 
 in his pocket, here the facts themselves are directly attested ; but 
 the evidence they afford is termed circumstantial ; and from these 
 facts, if unexplained by the prisoner, the jury may, or may not, 
 deduce, or infer, or presume his guilt, according as they are satisfied, 
 or not, of the natural connection between similar facts and the guilt 
 of the person thus connected with them. In both cases, the veracity 
 of the witness is presumed, in the absence of proof to the contrary ; 
 but in the latter case there is an additional presumption or inference, 
 founded on the known usual connection between the facts proved, 
 
CHAP. IV.J DIRECT AND CIRCUMSTANTIAL EVIDENCE. 81 
 
 and the guilt of the party implicated. This operation of the mind, 
 which is more complex and difficult in the latter case, has caused 
 thq evidence afforded by circumstances to be termed presumptive 
 evidence ; though, in truth, the operation is similar in both cases. 
 
 § 66. Much has been said and written respecting the comparative § 57 
 value of direct and circumstantial evidence ; but as the controversy 
 seems to have arisen from a misapprehension of the real nature 
 and object of testimony, and can moreover lead to no practical end, 
 it is not here intended to enter into the lists further than to observe, 
 that one argument urged in favour of circumstantial evidence is 
 palpably erroneous. "Witnesses may lie, but circumstances 
 cannot,"^ has been more than once repeated from the bench, and is 
 now almost received as a judicial axiom. Yet certainly no proposi- 
 tion can be more false or dangerous than this. If " circumstances " 
 mean, — and they can have no other meaning, — those facts which 
 lead to the inference of the fact in issue, they not only can, but 
 constantly do lie ; or, in other words, the conclusion deduced from 
 them is often false. Thus, when at Melita the viper fastened on 
 St. Paul's hand, the barbarians said among themselves, " No doubt 
 this man is a murderer ; " but when they saw that no harm came 
 to him, " they changed their minds, and said that he was a god."^ 
 Here, both conclusions were alike false. So, in Macbeth, the 
 master poet of nature has described Lenox, Macduff, and the other 
 chieftains as erroneously assuming, first, that the grooms had mur- 
 dered the King, because " their hands and faces were all badged 
 with blood, so were their daggers, which unwiped we found upon 
 their pillows:"^ and next, that "they were suborned" by the king's 
 two sons, who had " stolen away and fled."* It is no answer to say 
 that these are mere instances of hasty and illogical inferences, 
 which display only the ignorance and presumption of the persons by 
 whom they were drawn, and that the " circumstances which cannot 
 
 • Annesley v. Ld. Anglesea, IV How. St. Tr. 1430, per Mountenoy,' B. ; 
 R. V. Blandy, 18 How. St. Tr. 1187, per Legge, B. 
 
 ^ Acts, xxviii. 3 — 5. So, wlien Jacob saw Joseph's coat of many colours 
 stained with kid's Mood, " he knew it, and said, ' It is my son's coat ; an 
 evil beast hath devoured him ; Joseph is without doubt rent in pieces,' " 
 Gen. xxvii. 33. ' Act ii., sc. 3. ^ Act ii., sc. 4. 
 
82 DIRECT AND CIRCUMSTANTIAL EVIDENCE. [PART I. 
 
 lie " are such as necessa/rily lead to a certain conclusion. Who is 
 to decide on this necessity ? Clearly those who have also to decide 
 on the fact in issue. Throw a case of circumstantial evidence into 
 the form of a syllogism, and it wiU be found that the major premiss 
 rests solely on the erring experience of the tribunal to whom it is 
 presented. Besides, these very circumstances must be proved, like 
 direct facts, by witnesses, who are equally capable with others of 
 deceiving ^ or of being deceived. So that in no sense is it possible 
 to say, that a conclusion drawn from circumstantial evidence can 
 amount to absolute certainty, or, in other words, that circumstances 
 cannot lie. 
 
 § 67. Although it is not here proposed to take any part in the § 58 
 controversy respecting the comparative weight due to direct and 
 circumstantial evidence ; still, it may not be without some advan- 
 tage to point out briefly the dangers against which juries should 
 especially guard, when called upon to decide cases supported by each 
 of these species of testimony. For instance, in a case sought to be 
 directly established, the witnesses are usually few, and consequently 
 there is the more reason to apprehend conspiracy and fraud ; since 
 two or three persons are far more easily found than a larger number, 
 who, from motives of interest or malignity, will combine to 
 •aggrandise themselves or to ruin an opponent. Their story, too, 
 being for the most part simple, is readily concocted and remembered. 
 
 1 logo's story of tlie handkerchief, which goaded Othello to madness, will 
 «cour to everyone ; — 
 
 " Iago. Have you not sometimes seen a handkerchief. 
 Spotted with strawherries, in your wife's hand ? 
 Othello. I gave her such a one ; 'twas my first gift. 
 Iago. I knew not that ; hut such a handkercliief, 
 (I am sure it was your wife's,) did I to-day 
 See Cassio wipe his heard with. 
 Othello. If it he that, — 
 
 Iago. If it he iliat, or any that was hers. 
 
 It speaks against her, with the other proofs. 
 ■Othello. Oh ! that the slave had forty thousand lives — 
 One is too poor, too weak for my revenge ! 
 Now do J-see 'iia trtie." 
 
 Othello, Act iii., Sc. iii. 
 
CHAP. IV.] CIRCUMSTANTIAL EVIDENCE. 83 
 
 while its very simplicity renders it extremely difficult, on cross- 
 examination, to detect the imposture. It is on this ground that 
 the uncorroborated statements of single witnesses, especially when 
 they testify to atrocious crimes, such as rape, &c.,^ or are known, 
 like accomplices,** to be persons of bad character, and to have an 
 interest in the result, have ever been regarded with merited distrust, 
 and are now, in practice, generally deemed insufficient to warrant a 
 conviction. 
 
 § 68. With respect to cases supported by circumstantial evidence, 
 juries should bear in mind, that, although the number of facts 
 drawn from apparently independent sources renders concerted per- 
 jury both highly improbable in itself, and easy of detection if 
 attempted;^ yet, the witnesses in such cases are more likely to 
 make unintentional misstatements, than those who give direct tes- 
 timony. The truth of the facts they attest rest frequently on minute 
 and careful observation, and experience teaches the danger of relying 
 implicitly on the evidence of even the most conscientious witnesses, 
 respecting dates, time, distances, footprints, handwriting, admis- 
 sions, loose conversations, and questions of identity. Yet these are 
 the links in the chain of circumstances, by which guilt is ia general 
 sought to be established. The number too of the witnesses, who 
 must all speak the truth, or some link will be wanting, renders 
 additional caution the more necessary. Besides, it must be remem- 
 bered, that, in a case of circumstantial evidence, the facts are 
 collected by degrees. Somethiag occurs to raise a suspicion against 
 a particular party. Constables and police officers are immediately 
 on the alert, and, with professional zeal, ransack every place and 
 paper, and examine into every circumstance which can tend to es- 
 tabUsh, not his innoQence, but his guilt. Presuming him guilty 
 from the first, they are apt to consider his acquittal as a tacit reflec- 
 tion on their discrimination or skill, and, with something like the 
 feeling of a keen sportsman,, they determine, if possible, to bag 
 their game. Innocent actions may thus be misinterpreted, — innocent 
 
 ' 1 Hale, 635. ^ R. v. Jones, 2 Camp. 132. 
 
 3 Greenl. on Test, of Evang. § 40. 
 
 6 2: 
 
84 CIRCUMSTANTIAL EVIDENCE. [PAET I. 
 
 words misunderstood ; and, as men readily believe what they 
 anxiously desire,^ facts the most harmless may be construed into 
 strong confirmation of preconceived opinions.^ It is not here as- 
 serted that this is frequently the case, nor is it intended to disparage 
 the police. The feelings by which they are actuated, are common 
 to counsel, engineers, surveyors,' medical men, antiquarians, and 
 philosophers ; indeed, to all persons who first assume that a fact or 
 system is true, and then seek for arguments to support and prove its 
 truth. 
 
 § 69. But, admitting that the facts sworn to are satisfactorily § 60 
 proved, a further, and a highly difficult duty still remains for the 
 jury to perform. They must decide, not whether these facts are 
 consistent with the prisoner's guilt, but whether they are incon- 
 sistent with any other rational conclusion ; for it is only on this last 
 hypothesis that they can safely convict the accused.* 
 
 ' This proposition cannot be more strikingly illustrated, than by referring 
 to the credit that was given by the whole civilised world to the lying telegram 
 which, in October, 1854, announced the fall of Sebastopol. 
 
 2 Ante, § 57. 
 
 3 Waters v. Thorn, 22 Beav. 547, 556, 557, pe.r Komilly, M. R. 
 ^ R. V. Hodge, 2 Lew. C. C. 227. 
 
CHAP, v.] PEESUMPTIVE EVIDENCE. 85 
 
 CHAPTER V. 
 
 PRESUMPTIVE EVIDENCE. 
 
 § 70.^ The general head of Presumptive evidence is usually § 61 
 divided into two branches, namely, presumptions of law, and pre- 
 sumptions of fact. Presumptions of law consist of those rules, 
 which, in certain cases, either forbid or dispense with any ulterior 
 inquiry. They are founded, either upon the first principles of 
 justice, or the laws of nature, or the experienced course of human 
 conduct and affairs, and the connexion usually found to exist 
 between certain things. The general doctrines of presumptive 
 evidence are not, therefore, peculiar to municipal law, but are 
 shared by it in common with other departments of science. 
 Thus, the presumption of a malicious intent to kill from the 
 deliberate use of a deadly weapon, and the presumption of aquatic 
 habits in an animal found with webbed feet, belong to the same 
 philosophy, differing only in the instance, and not in the principle 
 of its application. The one fact being proved or ascertained, 
 the other, its uniform concomitant, is universally and safely pre- 
 sumed. It is this uniformly experienced connexion which leads 
 to its recognition by the law, without other proof; the presump- 
 tion, however, having more or less force, in proportion to the 
 universality of the experience. And this has led to the distribu- 
 tion of presumptions of law into two classes, namely, conclusive 
 and disputable. 
 
 § 71.^ Conclusive, or, as they are elsewhere termed, imperative, § 62 
 or absolute presumptions of law, are rules determining the quan- 
 tity of evidence requisite for the support of any particular 
 averment, which is not permitted to be overcome by any proof 
 that the fact is otherwise. They consist chiefly of those cases 
 
 Gr. Ev. § 14, verbatim. 2 Qj.^ Ev. § 15, verbatim. 
 
86 CONCLUSIVE STATUTABLE PRESUMPTIONS. [PART I. 
 
 in which the long experienced connexion, just alluded to, has 
 been found so general and uniform, as to render it expedient for 
 the common good, that this connexion should be taken to be in- 
 separable and uniYcrsal. They have been adopted by common con- 
 sent, from motives of public policy, for the sake of greater certainty, 
 and the promotion of peace and quiet in the community ; and there- 
 fore it is, that all corroborating evidence is dispensed with, and all 
 opposing evidence is forbidden.^ 
 
 § 72. Sometimes this common consent is expressly declared § 63 
 through the medium of the legislature in statutes. Thus, under 
 " The Bankruptcy Act, 1869," the registration of a special resolu- 
 tion of the creditors for a liquidation by arrangement, or of an 
 extraordinary resolution for composition, is, in the absence of 
 fraud, conclusive evidence that such resolutions respectively have 
 been duly passed, and that the Act has been complied with.^ So, 
 under the same statute, the approval of the Court, testified as 
 therein mentioned, is conclusive as to the validity of any composition 
 or general scheme of settlement made in pursuance of the Act.^ All 
 the requisitions of " The Public Schools Act, 1868," in respect to 
 any statutes made by the governing body of a school, " shall be 
 deemed to have been duly complied with," so soon as the statutes 
 themselves have been approved by Her Majesty in Council.* So 
 also, under " The Endowed Schools Act, 1869," the order in council 
 approving a scheme is conclusive evidence of its validity ; ^ and under 
 
 1 The presumption of the Roman law is defined to be, " oonjectura, ducta ab 
 60, quod ut plurimum fit. Ea conjeotura vel a lege inducitur, vel a judice. 
 Qvia3 ab ips& lege inducitur, vel ita comparata, ut probationem contrarii baud 
 admittat ; vel ut eadem possit elidi. Priorem doctores prcesumptionem juris 
 ET DB JTJEB, posteriorem prassumptionem jdeis, adpeUant. Quse a Judice indu- 
 citur conjeotura, prasumptio hominis vocari solet ; et semper admittit proba- 
 tionem contrarii, quamvis, si alicujus moment! sit, proband! onere relevet." 
 Hein. ad Pand., Pars iv. § 124. Of the former, answering to our conclusive 
 presumption, Mascardus observes, — " Super hac praesumptione lex fimiuni 
 sancit jus, et eam pro veritate habet." 1 de Prob., Qusest. x. 48. An exception 
 to the conclusiveness of this class of presumptions is allowed by the civil law, 
 when the presumption is met by an admission injudicio. 
 
 2 32 & 33 v., c. 71, § 127. 3 § 28. 
 
 ^ 31 & 32 v., c. 118, § 8, siibs. 4. 
 
 ^ 32 & 33 v., c. 56, § 47. 
 
CHAP, v.] CONCLUSIVE STATUTABLE PRESUMPTIONS. 87 
 
 " The Valuation Metropolis Act, 1869," " the valuation list for 
 the time being in force shall be deemed to have been duly made."^ 
 The Act, too, of 16 & 17 V., c. 59, contains a remarkable clause, 
 for it enacts, in § 19, that " any draft or order drawn upon a 
 banker payable to order on demand, which shall, when presented 
 for payment, pn/rport to be indorsed by the person to whom the same 
 shall be drawn payable," — which last words have been held to 
 include the payee's agent, though he may not really be authorised 
 to indorse,^ — " shall be a sufficient authority to such banker to pay 
 the amount of such draft or order to the bearer thereof; and it shall 
 not be incumbent on such banker' to prove that such indorsement, 
 or any subsequent indorsement, was made by, or under the direction 
 of, the person to whom the said draft or order was or is made pay- 
 able either by the drawer or any indorser thereof."* So, under 
 " The Stamp Act, 1870," " a bill of exchange or promissory note 
 purporting to be drawn or made out of the United Kingdom, is, for 
 the purpose of this Act, to be deemed to have been so drawn or 
 made, although it may in fact have been drawn or made within 
 the United Kingdom."^ 
 
 § 73. Thus, too, by the statutes of limitation,® where a debt § 64 
 
 1 32 & 33 v., 0. 67, § 45. 
 
 2 Charles v. Blackwell, L. E., 2 C. P. D. 151, per Ct. of App. 
 
 ' TMs enactment does not protect any other person than a banker who takes 
 a cheque on the faith of a forged indorsement. Ogden v. Benos, 9 Law Rep., 
 C. P. 513 ; 43 L. J., C. P. 259, S. C. 
 
 " See Hare v. Copland, 13 Ir. Law E., N. S. 426. 
 
 5 33 & 34 v., c. 97, § 52. 
 
 « 21 J. 1, c. 16 ; 16 & 17 v., c. 113, § 20, Ir. The first Act enacts, in § 3, 
 that " all actions of trespass quare olausmn fregit, all actions of trespass, detinue, 
 action sur trover, and replevin for taking away of goods and cattle, all actions 
 of account, and upon the case, other than such accounts as concern the trade of 
 merchandise between merchant and merchant, their factors or servants, all actions 
 of debt grounded upon any lending or contract without specialty, all actions of 
 debt for arrearages of rent, and all actions of assault, menace, battery, wound- 
 ing and imprisonment, or any of them, shall be commenced and sued within 
 the time and limitation hereafter expressed, and not after, (that is to say), the 
 said actions upon the case, other than slander, and the said actions for account, 
 and the said actions for trespass, debt, detinue, and replevin for goods or cattle, 
 and the said action of trespass quare clausum fregit, within six years next after 
 the cause of such actions or suit, and not after ; and the said actions of trespass, 
 
88 STATUTES OF LIMITATION. [PAET I. 
 
 has been created by simple contract,i and has not been distinctly 
 recognised within six years as a subsisting obligation, either in 
 some writing signed by the party chargeable, or his agent, or by 
 part payment,^ no action can be maintained to recover it ; that is, 
 it is conclusively presumed to have been paid. So, all actions 
 on the case, other than slander, actions of trespass to goods or 
 land, and actions of detinue^ or replevin, must be brought within 
 a like period of six years after the cause of action shall have 
 accrued ; * and no action can be maintained for an assault or false 
 imprisonment after the lapse of four years ; ^ for slander after the 
 lapse of two years ; ^ or for compensation to the families of per- 
 sons killed by accident, after twelve calendar months from the 
 death of the deceased.'^ So, actions against persons for anything 
 done by them under the authority or in pursuance of any local 
 and personal Act, must be brought within two years after the 
 cause of action shall have accrued, or in the case of continuing 
 damage, within one year after the damage shall have ceased.^ So, 
 all actions and proceedings against persons acting under any of 
 the statutes passed in 1861, to consolidate the law relating to 
 larceny, malicious injuries, or coin,^ or under the Naval Prize Act, 
 
 of assault, "battery, wounding, imprisonment, or any of tliem, within four years 
 next after the cause of such actions or suit, and not after ; and the said actions 
 upon the case for words, within two years next after the words spoken, and not 
 after." The exception marked in italics, after perplexing the courts for two 
 centuries, and giving rise to numerous conflicting decisions, has at length heen 
 repealed by 19 & 20 V., c. 97, § 9. 
 
 1 The St. of Limit. 21 J. 1, c. 16, applies to an action of debt for a penalty 
 under a by-law. Tobacco-pipe Makers' Co. v. Loder, 16 Q. B. 765. 
 
 2 9 G. 4, c. 14, § 1 ; 19 & 20 V., ^. 97, § 13. 
 
 3 See Wilkinson v. Verity, 6 Law Eep., C. P. 206 ; 40 L. J., 0. P. 141, S. C. ; 
 as to when the cause of action wUl accrue in detuiue. 
 
 " See ante, p. 87, n. 6. ' See id. e See id. 
 
 ' 9 & 10 v., c. 93, § 3, as amended by 27 & 28 V., c. 95. 
 
 » 5 & 6 v., c. 97, § 5, passed 10 Aug., 1842, after reciting, that " divers Acts 
 commonly called public local and personal, or local and personal. Acts, and 
 divers other Acts of a local and personal nature, contain clauses limiting the 
 time within which actions may be brought for anything done in pursuance of 
 the said Acts respectively," enacts, that "the period within which any action 
 may be brought for anything done, under the authority or in pursuance of any 
 such Act or Acts shall be two years, or in case of continuing damage, then 
 withm one year after such damage shall have ceased " 
 
 " 24 & 25 v., c. 96, § 113 ; c. 97, § 71 ; c. 99, § 33 
 
CHAP, v.] STATUTES OF LIMITATION. 89 
 
 1864,1 the Prison Act, 1865,^ the Seaman's Clothing Act, 1869,^ 
 the Public Health Act, 1875,* or the Militia Act, 1875,^ must be 
 " commenced within six months after the fact committed ; " and 
 no action can " be brought against any justice of the peace, for 
 anything done by him in the execution of his office," unless it be 
 commenced within a like period.^ Under some of the Metropolitan 
 Police Acts, the right of action is limited to three months from the 
 date of the injury,''' while two months are the limit under " The 
 Customs Consolidation Act, 1876." ^ So, when a judgment has been 
 obtained against a banking copartnership, no execution can issue 
 thereon against any former member of such copartnership, after the 
 expiration of three years next after the person sought to be charged 
 shall have ceased to be a member.' Again, the period within which 
 over-payments of duty may be returned by the Commissioners of 
 Customs is limited to six years. i**. 
 
 § 74. In like manner, the right of the Sovereign,^! and of the § 65 
 Duke of Cornwall,^^ to institute legal proceedings for the recovery 
 of lands, rents, or minerals, is barred, under several special 
 statutes, by uninterrupted possession for a period of sixty, or in 
 certain cases, of one hundred years. The possession, too, of 
 land, or of rent, for the length of time mentioned in the general 
 statutes of limitation, under a claim of absolute title and owner- 
 ship, constitutes against all subjects of the Crown a conclusive 
 presumption of a valid grant.^^ So the payment of a modus, or 
 
 1 27 & 28 v., 0. 25, § 51. ^ 28 & 29 V., c. 126, § 50. 
 
 3 32 & 33 v., c. 57, § 6. ^ 38 & 39 V., c. 55, § 264. 
 
 5 38 & 39 v., 0. 69, § 97. 
 
 « 11 & 12 v., 0. 44, § 8 ; 12 & 13 V., o. 16, § 8, Ir. In Scotland, under 
 " the Summary Procedure Act, 1864," the period is fixed at two months, 27 & 
 28 v., c. 53, § 35. 
 
 7 2 & 3 v., c. 71, § 53 ; Barnett v. Cox, 9 Q. B. 617 ; Hazeldine v. Grove, 
 3 Q. B. 997 ; 3 G. & D. 210, S. C. 
 
 8 39 & 40 v., c. 36, § 272, as amended by 40 V., o. 13, § 4. 
 
 » 7 G. 4, c. 46, § 13. See In re North of Engl. Joint Stock Bank Co., ex 
 parte Gouthwaite, 20 L. J., Ch. 188, 192, 193 ; Barker v. Buttress, 7 Beav. 134 
 1° 34 & 35 v., 0. 103, § 5. "9 G. 3, c. 16 ; 24 & 25 V., c. 62. 
 
 12 7 & 8 v., c. 105, §§ 73, et sec[. ; 23 & 24 V., o. 53 ; 24 & 25 V., c. 62. 
 
 13 This period has been limited differently, at different times ; but for many 
 years past, it has been shortened, at successive revisions of the law both in 
 
90 STATUTES OF LIMITATION. [PAKT I, 
 
 the adverse, and as of right enjoyment of land tithe-free, for the 
 periods specified in the Act of 2 & 3 W. 4, c. 100/ conclusively 
 
 England and the United States. In 1833 the Act of 3 & 4 W. 4, o. 27, passed ; 
 and hy § 2 of that Statiite all actions to recover land or rent are barred, after 
 twenty years from the time when the right of action accrued ; unless, at such 
 time, the plaintiff or the party through whom he claims shall have been under 
 some disability, specified in the Act, in which case he is allowed ten years from 
 the ceasing of the disability ; provided that in no case shall an action be brought 
 after forty years from the time when the right first accrued, although the period 
 of ten years shall not have expired. §§ 16 & 17. This statutory rule is ex- 
 tended by §§ 24 & 25, to all claims in equity for the recovery of land ; Mag- 
 dalen College V. Att.-Gen., 26 L. J., Ch. 620 ; 6 H. of L. Cas. 189, S. C. ; and 
 it also applies to a claim for dower ; Marshall v. Smith, 34 L. J., Ch. 189, per 
 Stuart, V.-C. ; to a claim for compensation for equitable waste ; D. of Leeds 
 V. Ld. Amherst, 2 PhiU. 117 ; and to the claim of an annuity charged upon 
 land by wiU, the twenty years in this last case being calculated from the death 
 of the testator ; James v. Salter, 3 Bing. N. C. 544. The sections, however, 
 just referred to do not apply to spiritual or eleemosynary corporations sole, who 
 are empowered by § 29 to bring actions or suits to recover land or rent within 
 two successive incumbencies and six years, or, in case these periods do not 
 amount to sixty years, then within sixty years next after the right of action 
 shall first have accrued. §§ 30 — 33 limit the time within which advowsons 
 can be recovered, while § 40 enacts, that all moneys charged upon land and 
 legacies shall be deemed satisfied at the end of twenty years, unless some in- 
 terest shall have been paid, or some written acknowledgment shall have been 
 given in the meanwhile. Under § 28 no mortgagor shaU bring a suit to redeem 
 a mortgage but within twenty years from the time when the mortgagee took 
 possession, or from the last written acknowledgment of the mortgagor's title. 
 Mortgagees also may bring actions to recover land at any time within twenty 
 years next after the last payment of any part of the principal or interest 
 secured by the mortgage, 7 W. 4, & 1 V., o. 28 passed in 1837 ; Doe v. Eyre, 17 
 Q. B. 366 ; Doe v. Massey, id. 373 ; Ford v. Ager, 2 New E. 366, per Ex. ; 32 
 L. J., Ex. 269 ; 2 H. & C. 279, S. 0. ; provided that such last payment be 
 itself within twenty years from the date of the mortgage ; Hemming v. Blan- 
 ton, 42 L. J., C. P. 158. See also, 6 & 7 V., c. 54, and 7 & 8 V., c. 27, which 
 Acts extend to Ireland such of the provisions of 3 & 4 W. 4, c. 27, as were not 
 abeady in force there, and explain and amend that Act. This period of twenty 
 years has been adopted in most of the United States. See 4 Kent, Com. 188 
 n. a. The same period in regard to the title to real property, or, as some con- 
 strue it, only to the profits of the land, is adopted in the Hindoo law. 1 Mac- 
 nagh. Elem. of Hindoo L. 201. See, as to the Scotch law, 37 & 38 V., c. 94, 
 §§ 13, 34. Under the " Real Property Limitation Act, 1874," 37 & 38 V., 
 c. 57, which, however, is not to come into operation tiU the 1st January, 1879, 
 the periods of Umitation have been greatly reduced, sk, twelve, and 'thirty 
 years having been substituted for the ten, twenty, and forty years mentioned in 
 the Acts of 1833 and 1837. 
 
 ' See Salkeld v. Johnson, 2 Ex. R. 256. In this important case, which was 
 
CHAP, v.] TITLE TO LAND THE PRESCBIPTION ACT. 91 
 
 bars the right of all parties, even the Queen, to recover tithes, 
 unless such payment has been made, or enjoyment had, under an 
 express written consent or agreement.^ 
 
 § 75. So, also, in the completion of any contract of sale of land, § ^^ 
 the period of the commencement of title, which a purchaser may 
 require, or, in the language of conveyancers, the root of title, is now 
 fixed by statute at forty years, unless there be some stipulation to 
 the contrary in the contract, or some very special circumstances in 
 the case.^ Thus, too, by the Prescription Act,^ the length of time 
 which constitutes the period of legal memory, or in other words, 
 
 an issue out of Chancery, the Barons decided, — 1st, That the enjoynaent of land, 
 producing titheable matters, without payment of tithe for the period prescribed 
 by the Act stated above, if adverse and as of right, created an indefeasible ex- 
 emption from tithes, without other proof of the legal origin of the exemption ; 
 but, secondly, that the non-payment of tithes of a particular thing for such 
 period, in respect of lands for which tithes of other titheable produce had been 
 paid within the statutable period, did not exempt the payment of the tithes of 
 that particular thing. Subsequently, Ld. Cottenham, C, while he confirmed 
 the decision of the Ct. of Ex. on the first poiat, overruled it on the second. See 
 S. G. reported in 1 HaU & T. 329 ; 1 M. & Gord. 242, S. C. See, also, Fel- 
 lowes V. Clay, 4 Q. B. 313 ; 3 G. & D. 407, S. 0. ; and Salkeld v. Johnson, 1 
 Hare, 196, & 2 Com. B. 749. 
 
 J See Toymbee v. Brown, 3 Ex. E. 117. ^ 37 & 33 y., 0. 78, § 1. 
 
 3 2 & 3 W. 4, c. 71,— extended to Ireland by 21 & 22 V., c. 42,— liinits the 
 period of legal memory as follows : — In cases of rights of common or other 
 profits or benefits arising out of lands, except tithes, rent, and services, primd 
 facie to thirty years, and conclusively to sixty years, unless it shall appear that 
 such rights were enjoyed by some consent or agreement expressly given or 
 made by deed or writing, § 1 ; in cases of ways or other easements, water- 
 courses, or the use of water, primd facie to twenty years, and conclusively to 
 forty years, unless it shall be proved, in like manner, by written evidence, that 
 the same were enjoyed by consent of the owner, § 2 ; and in cases of lights, 
 conclusively to twenty years, unless it shall be proved, in like manner, that the 
 same were enjoyed by consent, § 3. See TapUng v. Jones, 34 L. J., C. P. 342, in 
 Dom. Proc. ; 20 Com. B., N. S. 166, S. C. ; Lanfranchi v. Mackenzie, 26 L. J., 
 Ch. 518 ; 4 Law Eep., Eq. 421, S. C. ; Aynsley v. Glover, 44 L. J., Ch. 523. 
 § 4 directs, that the before-mentioned periods shall be deemed those next before 
 some suit or action respecting the claims, and further defines what shall amount 
 to an interruption. § 6 enacts, that no presumption shall be made in support 
 of any claim, upon proof of the enjoyment of the right for any less period 
 than the period mentioned in. the Act as applicable to the nature of the claim. 
 § 7 provides for parties who are under legal disabilities. As to what evidence 
 of user is necessary under this Act, see Lowe v. Carpenter, 6 Ex. E. 825. In 
 
92 SPECIALTIES ACTIONS FOE PENALTIES. [PABT I. 
 
 which affords a legal title, has in respect of incorporeal rights ^ been 
 definitely fixed ; while by the Act of 3 & 4 W. 4, c. 42/ the time 
 within which actions of covenant, and debt on specialties,^ and actions 
 for penalties,* may be brought, is expressly limited. So, where any 
 real or personal estate, subject to a trust for a Roman Catholic 
 charity, has been applied upon some trusts connected with that 
 religion for twenty years, but the original trusts cannot be ascer- 
 tained by any document, a consistent usage of twenty years is, by 
 statute, rendered conclusive evidence of the trusts on which the 
 property has been settled.^ So, under Lord Lyndhurst's Act for 
 regulating suits relating to meeting-houses and other property held 
 for religious purposes by dissenters, the usage for twenty-Jive years 
 immediately preceding any such suit, shall be taken as conclusive 
 
 the United States, tiie courts are inclined to adopt the periods mentioned in 
 the statutes of limitation, in all cases analogous in principle. Coolidge v. 
 Learned, 8 Pick. 504 ; Melvin v. Whitirig, 10 Pick. 295 ; Eicard v. Williams, 
 7 Wheat. 110. 
 
 1 A right to the passage of air and light to a garden, Potts v. Smith, 38 
 L. J., Ch. 38, per Malins, V.-C. ; or of air to a windmill, is not within the 
 meaning of this Act, Webh v. Bird, 13 Com. B., N. S. 841 ; nor is a claim of 
 " a free fishery " in the waters of another, Shuttleworth v. Le Fleming, 19 
 Com. B., N. S. 687. 
 
 2 § 3 enacts, that actions of debt for rent upon an indenture of demise, 
 actions of covenant or debt upon any bond or other specialty, and actions of 
 debt or scire /acms upon recognisance, shall be brought within twenty years 
 after the cause of such actions or suits ; actions of debt upon any award where 
 the submission is not by specialty, or for any fine due in respect of any copy- 
 hold estate, or for an escape, or for money levied on any scire facias, within six 
 years after the cause of such actions or suits ; and actions for penalties, 
 damages, or sums of money given to the party grieved by any statute now or 
 hereafter to be in force, within two years after the cause of such actions : " Pro- 
 vided that nothing herein contained shall extend to any action given by any 
 statute, where the time for bringing such action is or shall be by any statute 
 specially limited." § 4, as amended by 19 & 20 V., c. 97, § 10, provides for 
 parties under legal disabilities, and § 5 states the effect of an acknowledgment 
 in writing or part payment. See, also, the Irish Act of 16 & 17 V., c. 113, 
 §§ 20—24. 
 
 3 The term " specialty " includes all actions on statutes, as, for instance, an 
 action against a shareholder of a company for calls. Cork & Bandon Rail. 
 Co. V. Goode, 13 Com. B. 826 ; Shepherd v. Hills, 26 L. J., Ex. 6. 
 
 " See, also, as to actions for penalties, 31 El. c. 5, § 5, as limited by 11 & 12 
 v., c. 43, § 36, and Dyer v. Best, 1 Law Rep., Ex. 152 ; 35 L. J., Ex. 105 ; 
 and 4 H. & C. 189, S. C. s 23 & 24 V., c. 134, § 5. 
 
CHAP, v.] STATUTABLE LIMITATIONS OP PEOSECUTIONS. 93 
 
 evidence that the religious doctrines, opinions, or mode of worship, 
 which for that period have been taught or observed in these 
 houses, may properly be taught or observed, provided the contrary 
 is not declared by the instrument declaring the trusts of such 
 houses, either in express terms or by reference to some other 
 document.''- 
 
 § 76. Many statutes also limit the period within which par- s 66 
 ticular offenders may be prosecuted. Of these, the Act of 7 W. 3, 
 c. 3, is the most remarkable, as it enacts, that no person shall be 
 prosecuted for any high treason or misprision within the Act, other 
 than a design or attempt to assassinate the Sovereign, unless the 
 bill of indictment be found within three years after the commission 
 of the offence.^ So, all suits, indictments, or informations, brought 
 or exhibited, for any offence against the Customs Acts, in any 
 court, or before any justice, must be brought or exhibited vdthin 
 three years next after the date of the offence committed.^ So, the 
 prosecution for every offence against the night-poaching Act, must 
 be commenced vnthin six calendar months, if punishable upon 
 summary conviction, and within twelve calendar months, if punish- 
 able upon indictment, or otherwise than upon summary conviction.* 
 The commencement of the prosecution here spoken of is not the 
 preferring the indictment, but the laying an information,^ and the 
 obtaining a warrant of apprehension ; or at least the issuing a 
 warrant of commitment ; ^ and therefore, where the prisoner was 
 apprehended and committed within the twelve months, though 
 the indictment was preferred after the expiration of that term, it 
 was held that the prosecution was commenced in time.'' Whether 
 the preferring an indictment which is ignored, would be deemed 
 
 1 7 & 8 v., c. 45, § 2. See Att.-Gen. v. Bunce, 6 Law Eep., Eq, 563, 571, 
 572, per Malins, V.-G. 
 
 2 §§ 5 & 6 ; extended to Scotland, by 7 A., c. 11. See Fost., C. L. 249. 
 
 3 39 & 40 v., c. 36, § 257. 
 
 ^ 9 G. 4, c. 69, § 4 ; 7 & 8 V., c. 29. See E. v. Casbolt, 11 Cox, 385. 
 
 5 See K V. Parker, 33 L, J., M. G. 135 ; 1 L. & Cave, 459 ; 9 Cox, 475, 
 S. C. 
 
 6 But see R. a Hull, 2 Fost. & Fin. 16, per Pollock, C. B. 
 
 ' E. V. Brooks, 2 G. & Kir. 402, by all the judges ; 1 Den. 217, S. C. ; E. 
 V. Austin, 1 C. & Kir. 621. , 
 
94 STATUTABLE LIMITATIONS OF PROSECUTIONS. [PAET I. 
 
 such a commencement of the prosecution as would warrant the 
 conviction of the party upon a subsequent indictment, preferred 
 more than a year after the offence was committed, may admit of 
 more doubt; and the point, though it has been discussed, has 
 never been determined.^ 
 
 § 77. Again, every prosecution on indictment for an offence § 66a 
 under the English Marriage Act of 1836,^ or under the " Births and 
 Deaths Eegistration Act, 1874,"^ must be commenced within three 
 years after the commission of such offence. So, under the Act for 
 marriages in Ireland, and the registering of such marriages, the 
 limitations of prosecutions are fixed at three years and three months, 
 according as the offences are punishable upon indictment or sum- 
 mary conviction.* So, also, no prosecution against any person for 
 making a false declaration, in order to procure a marriage out of 
 the district in which the parties dwell, shall take place after the 
 expiration of eighteen calendar months from the solemnisation of 
 such marriage.^ So, every suit against a clergyman for trans- 
 eressing the ecclesiastical law, must be commenced within two 
 years after the offence was committed;* and here the " commence- 
 ment of the suit " has been held to mean, — not the issuing of a 
 commission under the Church Discipline Act, or the report of the 
 commissioners, or the filing of articles in the name of the bishop, 
 or even the service of such articles on the accused, — ^but the actual 
 service upon him of a citation to appear at a certain time and place 
 before a competent tribunal to answer definite charges.'^ 
 
 1 E. V. Killminster, 7 C. & P. 228. See E. v. Mainwaring, 1 E. B. & E. 
 474. 
 
 2 6 & 7 W. 4, 0. 85, § 41. Qu. : "Whether a prosecution for making a false 
 statement touching the particulars required to be registered on a marriage, must 
 he commenced within three years under 6 & 7 W. 4, c. 86, § 41 ; E., v. Ld. 
 Dunboyne, 3 0. & Kir, 1. 
 
 3 37 & 38 v., c. 88, § 46. 
 
 " 7 & 8 v., c. 81, §§ 48 & 78, Ir. ; 26 & 27 V., c. 27, § 16, Ir 
 
 5 3 & 4 v., c. 72, § 4. 
 
 « 3 & 4 v., c. 86, § 20. See Simpson v. Flamank, I Law Eep., P. C. 463 ; 
 36 L. J., Ec. C. 28, S. C. 
 
 7 Denison v. Ditcher, Dea. & Sw., Ec. E. 334 ; Ditcher ■;;. Denason, 11 Moo. 
 P. C. E. 324 ; Bp. of Hereford v. T— n, 2 Eoberts. Ec. E. .595 ; 4 Moo. P. C.,, 
 N. S. 385, S. C, 
 
«2HAP. v.] STATUTABLE LIMITATIONS OF PROSECUTIONS. 95 
 
 § 78. Under the "Naval Discipline Act, 1866,"^ no person, who § 66b 
 has not avoided apprehension or fled from justice, shall be tried for 
 any offence, unless the trial take place within three years from the 
 commission of the offence, or within one year after the offender's 
 return to the United Kingdom, in the event of his having been 
 abroad during such period of three years. So, no one can be tried 
 for any offence against the Mutiny Act, the Marine Mutiny Act, or 
 the Articles of War, which shall appear to have been committed 
 more than three years before the date of the warrant for such trial, 
 unless the accused, by reason of his having absented himself, oi of 
 some other manifest impediment, shall not have been amenable to 
 justice within that period, in which case he may be tried at any 
 time not exceeding two years after the impediment shall have 
 ceased.^ Again, every prosecution, action, or suit instituted 
 against any person for contravening the Corrupt Practices Preven- 
 tion Act,^ or "the Corrupt Practices, Municipal Elections Act, 
 1872,"* must, unless the party absconds, be commenced within one 
 year of the date of the offence. So, the time for instituting sum- 
 mary proceedings under the Merchant Shipping Act, 1854, is 
 limited to six months, unless either of the parties be out of the 
 jurisdiction.^ Again, under the Public Health Act, 1875, all com- 
 plaints or informations must be made or laid within six months 
 from the time when the matter arose,^ and under the Mines Regu- 
 lation Acts of 1872, the limitation is fixed at three months.'^ 
 Clauses of a similar nature will be found in a vast variety of other 
 statutes, to which it is here considered unnecessary to make par- 
 ticular reference.^ 
 
 1 29 & 30 v., c. 109, § 54. 
 
 2 40 v., 0. 7, § 97 ; 40 V., c. 8, § 2. 
 
 3 17 & 18 v., c. 102, § 14 ; 21 & 22 V., c. 87 ; 36 & 27 V,, o. 29, §§ 1, 5 ; 
 31 & 32 v., c. 125 ; 38 & 39 V., c. 72. "i 35 & 36 V., c. 60, § 3. 
 
 * 17 & 18 v., c. 104, § 525 ; Austin v, Olse?., 37 L. J., M. C. 34 ; 3 Law 
 Eep., Q. B. 208 ; and 9 B. & S. 46, S. C. 
 
 6 38 & 39 v., 0. 55, § 252. 
 
 ? 35 & 36 v., c. 76, § 63, r. 1 ; and o. 77, § 34, r. 1. 
 
 « See 11 & 12 v., c. 118, § 3 ; 1 G. 1, st. 2, c. 5, § 8 ; 33 0. 3, c. 67, § 8 ; 
 4 G. 4, c. 76, § 21 ; 60 G. 3, & 1 G. 4, c. 1, § 7 ; 6 A., c. 7, § 3 ; 23 & 24 V., 
 c. 107, § 32, Ir. ; 14 & 15 V., c. 93, § 10, r. 4, Ir. ; The Merchandise Marks 
 Act, 1862, 25 & 26 V., c. 88, § 18. In Scotland summary complaints must, in 
 general, be instituted " within six months from the time when the matter of 
 
96 STATUTES OF LIMITATION. [PAET I, 
 
 § 79. It may admit of a serious doubt, whether all, or indeed § 67 
 the majority, of these statutes of limitation depend on the doctrine 
 of presumption. Some of them do so undoubtedly, but others 
 appear to rest solely on the broad ground of general expedience and 
 justice. Interest reipublicsB ut sit finis litium, is a maxim sanc- 
 tioned by aU civilised states : and the legislature, in passing most 
 of these statutes, probably never intended to recognise any legal 
 presumption, but the simple object was to check protracted litiga- 
 tion. When a party has been in undisputed possession of property 
 for, a considerable length of time, it is harsh to deprive him of that, 
 which, however obtained, has now acquired the character of a vested 
 interest. No presumption of a former grant is necessary to give 
 validity to his title. It rests on the fact of long uninterrupted en- 
 joyment. So, when a person has foregone a claim for many years, 
 there is no need for presuming that he has, in reality, been satis- 
 fied ; it is sufficient to say that his right to recover is lost by his 
 own negligence. Indeed, the statute of James, which has been 
 held not to discharge the debt, but merely to bar the remedy, is 
 strongly confirmatory of these views. ^ Before leaving this subject, 
 it may be well to notice a celebrated passage from one of Lord 
 Plunket's speeches, relative to the statutes of limitation. "If 
 Time," said his lordship, " destroys the evidence of title, the laws 
 have wisely and humanely made length of possession a substitute 
 for that which has been destroyed. He comes vidth his scythe in 
 one hand to mow down the muniments of our rights ; but in his 
 other hand the law-giver has placed an hour-glass, by which he 
 metes out incessantly those portions of duration, which render 
 needless the evidence that he has swept away."^ 
 
 sucii complaint arose," 27 & 28 V., c. 53, § 24. See, as to the Police Courts in. 
 Edinburgli, 30 & 31 V., c. 58, Sch. § 172. 
 
 1 Spears V. Hartly, 3 Bsp. 81 ; Higgins v. Scott, 2 B. & Ad. 413. 
 
 ' See " Statesmen of the Time of George III.," hy Ld. Brougham, 3rd Ser., 
 p. 227, n. The ahove passage has been variously rendered in different publica- 
 tions. In the case of Malone v. O'Connor, Napier, Ch., cited it as foUows : — 
 " Time, with the one hand, mows down the muniments of our titles ; with the 
 other, he metes out the portions of duration which render these muniments no 
 longer necessary." Drury's Cas. in Ch., temp. Napier, 644. This version is 
 probably more accurate than any other, as it was furnished to the Chancellor 
 by one of the counsel in the quare impedit, on the trial of which Ld. Plunket 
 made use of the imagery in his address to the jury. 
 
CHAP, v.] CONCLUSIVE PEESUMPTIONS AT COMMON LAW. 97 
 
 § 80.^ In other cases, the common consent by which this class § G8 
 of legal presumption is established, is declared through the medium 
 of the judicial tribunals, it being the common law of the land ; and 
 these decisions of the courts are respected, equally with the enact- 
 ments of the legislature, as authoritative declarations of an im- 
 perative rule of law, against the operation of which no averment or 
 evidence is received. Thus, for the purpose of determining the 
 legal rights and liabilities of parties, the courts conclusively 
 presume what, in a vast number of cases, must of course be contrary 
 to the fact,^ that every sane person, above the age of fourteen, is 
 acquainted with the criminal as well as the civil,^ the common* as 
 well as the statute,^ law of the land ; and the maxim " ignorantia 
 juris, quod quisque tenetur scire, neminem excusat," is uniformly 
 recognised in this country, as it formerly was in ancient Eome." 
 Indeed, this doctrine has been carried so far as to include the case 
 of a foreigner, who was here charged with a crime, which was no 
 offence in his own country.^ In like manner,^ a sane man of the 
 age of discretion is conclusively presumed to contemplate the natural 
 and probable consequences of his own acts ; and therefore the intent 
 to kill is conclusively inferred from the deliberate violent use of a 
 deadly weapon.^ So, on an indictment for cutting with intent to 
 
 ' Gr. Ev. § 17, verbatim as to first six lines. 
 
 2 See Martindale v. Falkner, 2 Com. B. 719, 720, per Maule, J. 
 
 5 Bilbie v. Lumley, 2 East, 469, 472, per Ld. Ellenborougli. 
 
 * A mistake of tbe legal effect of a document cannot be set up as a defence. 
 PoweU V. Smitb, 41 L. J., Cb. 734, per Ld. Eomilly. 
 
 * See Stokes v. Salomons, 9 Hare, 79, per Turner, V.-C. ; Tbe Cbariotta, 
 1 Dods. Adm. 392, per Sir W. Scott ; Middleton v. Croft, Str. 1056, per Ld. 
 Hardwioke. 
 
 " 1 Russ. C. & M. 25 ; 1 Hale, 42 ; Ff. 22, 6, 9. 
 
 ' E. V. Esop, 7 C. & P. 456, per Bosanquet & Vaugban, Js. ; Barronet's case, 
 1 E. & B. 1 ; Pearce & D. 51, S. C. 
 
 ^ Gr. Ev. § 18, as to four following lines. 
 
 5 1 Euss. 0. & M. 515—518 ; E. v. Dixon, 3 M. & Sel. 15. But if deatb 
 does not ensue till a year and a day, tbat is, a full year, after tbe stroke, it is 
 conclusively presumed tbat tbe stroke was not tbe sole cause of tbe deatb, and it 
 is not murder. 4 Bl. Com. 197 ; Glassf. Ev. 592. Tbe doctrine of presump- 
 tive evidence was familiar to tbe Mosaic Code ; even to tbe letter of tbe prin- 
 ciple stated in tbe text. Thus, it is laid down in regard to tbe manslayer, tbat 
 " if be smite bim witb an instrvment of iron, so tbat be die," — or, " if be 
 smite him with throwing a stone wherewith be may die, and be die," — or, " if 
 
 H 
 
98 CASES WHEEE EEAL INTENT MUST BE PROVED. [PAET I. 
 
 do the prosecutor some grievous bodily harm/ the judges have held 
 that the prisoner was rightly convicted, though it appeared that his 
 real intent was to wound another person ; ^ and an intent to defraud 
 a particular party will be conclusively presumed on an indictment 
 for forgery, provided the defrauding of such party would be the 
 natural result of the prisoner's act, if successful.^ The law, in such 
 a case, will not relax the rule, even though it should be proved that 
 the prisoner did not entertain the intention charged.* In hke 
 manner, on a charge of arson for setting fire to a mill, an intent to 
 injure or defraud the mill-owners will be conclusively inferred from 
 the wilful act of firing.^ The same doctrine should, it seems, on 
 principle, apply to all other crimes.^ 
 
 § 81. Several decisions, however, are opposed to the general § 69 
 adoption of this rule, and tend to show that, in respect of those 
 statutory offences, the character of which varies according to the 
 intent with which they are perpetrated, the real intention of the 
 prisoner must be left to the jury to be inferred from the facts 
 
 lie smite him with, a hand weapon of wood wherewith lie may die, and he die ; 
 he is a murderer." See Numb. xxxv. 16, 17, 18. Here, every instrument of 
 iron is conclusively taken to he a deadly weapon ; and the use of any such 
 weapon raises a conclusive presumption of malice. The same presumption 
 arose from lying in ambush, and thence destro3r|ng another. — Id. v. 20. But, ia 
 other cases, the existence of malice was to be proved, as one of the facts in the 
 case ; and in the absence of express malice, the offence was reduced to the 
 degree of manslaughter, as at the common law. — Id. v. 21, 22, 23. This very 
 reasonable distinction seems to have been unknown to the Gentoo Code, which 
 demands hfe for life, in all cases, except where the culprit is a Brahmin. " If 
 a man deprives another of Ufe, the magistrate shall deprive that person of life." 
 — Halhed's Gentoo Laws, b. xvi. § 1, p. 233. 
 
 1 Under the repealed Act of 43 G. 3, c. 58. 
 
 2 R. V. Hunt, 1 Moo. C. C. 93 ; E. v. Fretwell, 1 L. & Cave, 443 ; 9 Cox, 471, 
 S. C. See, also, E. v. Smith, Pearce & D. 559 ; 7 Cox, 5, S. C. ; which was an 
 indictment under the repealed Act, 7 W. 4 & 1 V., c. 85, § 3. 
 
 3 E. V. Beard, 8 C. & P. 148, per Coleridge, J. ; E. v. HiU, id. 276, by all the 
 judges ; E. v. Cooke, id. 582. 
 
 ' E. V. Sheppard, R. & E. 169 ; E. v. Mazagora, id. 291 ; E. v. Geach, 9 C. 
 & P. 499. The prisoner may also be convicted on a count charging the real 
 intent, E. v. Hanson, C. & Marsh. 334, by aU the judges. 
 
 ' E. V. Farrington, E. & E. 207 ; E. v. PhUp, 1 Moo. C. C. 263. 
 
 ■^ See E. V. Murphy, 13 Cox, 298. 
 
CHAP, v.] PRESUMPTION- OF CRIMINAL INTENT. 99 
 
 proved. Thus, on an indictment for cutting,^ where the intent 
 laid in the several counts was to murder, to disable, and to do 
 grievous bodily harm, but the intent found by the jury was to 
 prevent being apprehended, the judges held that a conviction 
 could not be sustaiaed, though the prisoner had inflicted a 
 serious wound.^ So, where a party was charged with inflicting 
 an injury dangerous to life with intent to murder, Mr. Justice 
 Patteson held, in one case,^ that the jury must be satisfied that 
 the prisoner, at the time he committed the assault, had formed a 
 deliberate intention of murdering his victim ; but, in a subsequent 
 case,* the same learned judge observed, that the jury might infer 
 such intent from the circumstance that, had death ensued, the 
 crime would have amounted to murder. Agaia, on an iadictment 
 under the Act of 9 G. 4, e. 31,^ charging the prisoner with 
 shooting at the prosecutor with intent to murder him, Mr. Justice 
 Littledale allowed the jury to pronounce a verdict in accordance 
 with the actual intent, which was to kill another person, and 
 the prisoner was consequently acquitted.® The principle of this 
 decision has also been recognised by Barons Parke and Alderson, 
 in a case where the prisoner was charged, under 7 W. 4 & IV., 
 c. 85, § 2,'' with causing poison to be taken by the prosecutor with 
 intent to murder him, and it appeared that the prisoner's real 
 intention was to poison another party .^ 
 
 § 82. Notwithstanding these decisions, and the high reputation § '''^ 
 of the judges by whom they were pronounced, it is submitted that 
 
 ^ Under the repealed Act of 43 G. 3, c. 58. 
 
 ^ R. V. Diiifin, K. & E. 365. This case is badly reported, and perhaps the 
 decision turned upon the ground that the attempted apprehension was not 
 lawful. 3 R. V. Cruse, 8 C. & P. 545. 
 
 ■• R. V. Jones, 9 0. &. P. 260. 
 
 '^ Repealed by 24 & 25 V., c. 95, and other provisions enacted in 24 & 25 V., 
 c. 100. 
 
 ^ R. V. Holt, 7 C. & P. 518. The learned judge observed, in summing up, 
 " If this had been a case of murder, and the prisoner intending to murder one 
 person, had, by mistake, murdered another, he would be equally liable to be 
 found guilty. The question, however, may be different on the construction of 
 this Act of Parliament." 
 
 ' Repealed by 24 & 25 V., c. 95, and other provisions enacted in 24 & 25 V., 
 c. 100. " R. V. Ryan, 2 M. & Rob. 213. 
 
 H 2 
 
100 PEESUMPTION OF INTENT AND MALICE. [PART I.. 
 
 the distinction which they intend to estahlish is founded on no 
 sound principle, hut goes far towards frittering away one of the 
 most valuable presumptions known to the criminal law. It must 
 also be borne in mind, that other judges of great experience in 
 the administration of criminal justice have refused to recognise 
 this distinction.! g^^ whether in these statutory offences the 
 actual intent is to be found by the jury, or the implied intent 
 is to be presumed by the law, it is agreed on all hands to be 
 immaterial, whether the intent charged be the principal or sub- 
 ordinate motive which instigated the commission of the crime. 
 Thus, where the jury found that the prisoner had wounded the 
 prosecutor with the view of preventing his lawful apprehension, 
 but that, in order to effect that purpose, he intended to do him 
 some grievous bodily harm, the judges held that the conviction 
 was right on a count charging the latter offence.^ The same rule 
 has been recognised where the immediate object of the criminal 
 was to rob the party he wounded, and the wound was inflicted as 
 the means of effecting the robbery.* 
 
 § 83. The presumption that a party intends the natural con- § 71 
 sequences of his acts, is not confined to criminal matters, but 
 extends equally to his civil responsibilities. Thus, the deliberate 
 publication of calumny, which the publisher knows to be false, 
 or has no reason to believe to be true, raises, under the proper 
 plea* to an action for libel, a conclusive presumption of mahce.' 
 So, if a party makes a representation, which he knows to be false, 
 and injury ensues to another, the law, whatever his real motives 
 may have been, will infer that he has been actuated by a fraudulent 
 or malicious intent." So, the wilful neglect of a defendant to plead 
 
 1 R. V. Lewis, 6 C. & P. 161, per Gumey, B. ; R. v. Jarvis, 2 M. & Eob. 40, 
 per id. ; ante, p. 98, notes 2—5. 2 R. v. Gillow, 1 Moo. C. C. 85. 
 
 ' R. V. Bowen, C. & Marsh. 149, per Coleridge, J. 
 
 * Quaere, whether such plea may still be " not guilty," see 6 & 7 V., c. 96, 
 §6. 
 
 * Haire v. "Wilson, 9 B. & 0. 643 ; R. v. Shipley, 4 Doug. 73, 177, per 
 AsKhurst, J. ; Fisher v. Clement, 10 B. & C. 475, per Ld. Tenterden ; 
 BayUs V. Lawrence, 11 A. & E. 925, per Patteson, J. ; Rodwell v. Osgood, 3 
 Pick. 379. 
 
 f Tapp V. Lee, 3 B. & P. 371 ; Foster v. Charles, 6 Bing. 396 ; 7 Bing. 105 ; 
 4 M. & P. 61, 741, S. C. ; Pontifex v. Bignold, 3 M. & Gr. 63. 
 
CHAP, v.] PRESUMPTIONS IN PAVOUE OF JUDICIAL PBOCEEDINGS. 101 
 
 within the time appointed by law, is taken conclusively against him, 
 as a confession of the plaintiff's right of action.^ So, if a person, 
 in the language of the Bankruptcy Act, " unable to pay his debts as 
 they become due from his own moneys," spontaneously makes a 
 transfer or payment in favour of any creditor aware of his insolvent 
 state, which necessarily has the effect of defeating or delaying his 
 other creditors, the law conclusively presumes that he made it with 
 that intent ; and provided that he afterwards becomes bankrupt 
 within three months from the date of such act, the transfer or pay- 
 ment will, by the policy of the bankrupt law, be set aside as fraudu- 
 lent, though all fraud in fact may be distinctly negatived.^ 
 
 § 84. Conclusive presumptions are also made in favour of judicial § "^^ 
 proceedings. Thus, it is an undoubted rule of pleading, that nothing 
 shall be intended to be out of the jurisdiction of a superior court but 
 that which is so expressly alleged ; and, consequently, the records 
 in the Courts of Counties Palatine, they being superior courts, need 
 not state the cause of action to have arisen within the jurisdiction.^ 
 In like manner it will be conclusively presumed in favour of all 
 the proceedings of either House of Parliament, that, whenever the 
 contrary does not plainly and expressly appear, the respective Houses 
 have acted within their jurisdiction, and agreeably to the usages of 
 Parliament, and the rules of law and justice ; and, therefore, if a 
 
 ' Rules of Sup. Ct. Ord. xxix. The principle of this order evidently 
 belongs to general jurisprudence. So is the Eoman law ; " Contumaoia eorum, 
 qui jus dicenti non obtemperant, litis damno coercetur." Dig. lib. 42, t. 1, 
 1. 53. " Si citatus aUquis non compareat, habetur pro consentione." 3 Maso. 
 de Prob. p. 253, concl. 1159, n. 26. 
 
 ^ Graham v. Chapman, 12 Com. B. 103, per Jervis, C. J. ; Ex parte Craven, 
 39 L. J., Bkpoy. 33 ; 10 Law Eep., Eq. 648, S. C. ; In re Craven, Ex parte 
 Tempest, 40 L. J., Bkpcy. 22 ; Brown v. Kempton, 19 L. J., C. P. 169 ; In re 
 Cheesebrough, 12 Law Rep., Eq. 358 ; 40 L. J., Bkpcy. 79, S. C. ; 32 & 33 V., 
 c. 71, § 92 ; and 35 & 36 V., c. 58, § 53, Ir. See Smith v. Cannan, 2 E. & B. 
 35 ; In re Wood, 7 Law Rep., Ch. Ap. 302 ; Ex parte Bailey, in re Barrell, 22 
 L. J., Bkpcy. 45 ; Bittlestone v. Cooke, 6 E. & B. 296 ; Bell v. Simpson, 26 L. 
 J., Ex. 363 ; Bills v. Smith, 6 B. & S. 314. See, also, as to the avoidance of 
 voluntary settlements, 32 & 33 V., c. 71, § 91 ; and 35 & 36 V., c. 58, 
 § 52, Ir. 
 
 ^ Peacock v. Bell, 1 Wms. Saund. 74, recognised in Gosset v. Howard, 10 Q. 
 B. 453. 
 
102 PRESUMPTIONS IN FAVOUE OF JUDICIAL PROCEEDINGS. [PART I. 
 
 warrant be issued by the Speaker of the House of Commons at the 
 instance of the House for the arrest of a witness, that document need 
 not contain any recital of the grounds on which it was founded.^ So, 
 also, it is presumed, with respect to such writs as are actually issued 
 by any division of the High Court of Justice, that they are duly 
 issued, and in a case in which the court has jurisdiction, unless 
 the contrary appears on the face of them ; and all such writs will of 
 themselves, and without any further allegation, protect all officers 
 and others in their aid acting under them : and this too, although 
 they be on the face of them irregular, or even void in form.^ The 
 respect due to the High Court, and the credit deservedly given to it, 
 that it will not abuse its powers, or issue process except in due 
 course, and in accordance ■with the authority entrusted to it by the 
 law, furnish alike the reason and the justification for this somewhat 
 arbitrary presumption.* 
 
 § 85.* Again the courts are bound to assume, at least prima § 73 
 facie, that the unreversed sentence of a foreign or colonial court 
 of competent jurisdiction is correct ; for otherwise, they would, 
 in effect, be constituting themselves courts of appeal, without 
 power to reverse the judgment.^ Judicial acts are also conclusively 
 presumed to have taken place at the earliest period of the day on 
 which they were done. A judgment, therefore, would be treated as 
 regular, though it were signed several hours after the defendant had 
 died.^ The records also of a court of justice, and indeed all records, 
 are always presumed to have been correctly made.''' No evidence. 
 
 ' Gosset V. Howard, 10 Q. B. 411, 455—459. 
 
 ^ Gosset V. Howard, 10 Q. B. 453, 454, citing Countess of Rutland's case, 6 
 Eep. 54 a ; and Parsons v. Loyd, 3 Wils. 341. 
 
 ' Id., 456, 457. The elaborate judgment of the Ex. Ch., as pronounced hy 
 Parke, B., in this case, deserves close study. 
 
 ^ Gr. Ev. § 12, as to one or two lines. 
 
 " Brenan's case, 10 Q. B. 492, 502, per L. Denman ; Eobertson v. Struth, 5 
 Q. B. 942, per Patteson, J. 
 
 « Wright V. MiUs, 4 H. & N. 488 ; Edwards v. R., 9 Ex. R. 628. 
 
 ' Reed v. Jackson, 1 East, 355 ; Ramshottom v. Buckhurst, 2 M. & Sel. 
 567, per Ld. EUenhorough ; 1 Inst. 260; R. v. CarKle, 2 B. & Ad. 367 
 ^369, per Ld. Tentei-den. " Res judicata pro veritate acoipitur." Dig. Kb. 50, 
 t. 17, 1. 207. 
 
CHAP v.] PRESUMPTIONS IN FAVOUR OF JUDICIAL PEOCEEDINGS. 103 
 
 therefore, will be admissible to show that a charter granted by the- 
 Crown was made or delivered at another time than when it bears 
 date ; ^ and the day specified in a record of conviction will be con- 
 clusive proof of the commission day of the assizes at which the 
 trial took plaee.^ In this last case, however, the party against 
 whom the record is produced, may still show, if necessary, by 
 parol evidence the actual day of the trial ; because, although by 
 fiction of law the whole time of the assizes is considered as one 
 day, the court will judicially notice that this legal day may 
 consist of many natural days, and will not permit justice to be 
 defeated by a mere arbitrary rule.^ Proof of the real day of trial 
 would not, in such a case, contradict the record, but would simply 
 explain it. So, if a nisi prius record were to contain two counts, 
 or distinct causes of action, and a verdict awarding damages to 
 the plaintilff were entered generally, parol evidence would be 
 admissible to show that the substantial damages were recovered 
 on one count only.* After verdict, whether in a civil or a criminal 
 case,^ it will be presumed that those facts, without proof of 
 which the verdict could not have been found, were proved, though 
 they are not distinctly alleged in the record ; provided it contains 
 terms sufficiently general to comprehend them in reasonable intend- 
 ment.^ So, the notes taken by the judge at Nisi Prius are 
 presumed to be correct, and no party is allowed to raise before 
 the Court in Banc any question respecting the rejection of evidence 
 
 1 Ladford v. Gretton, Plowd. 490. 
 
 2 See Thomas v. Ansley, 6 Esp. 80 ; E. v. Page, id. 83. 
 
 3 Whitaker v. Wisbey, 21 L. J., C. P. 116 ; 12 Com. B. 44, S. C. ; Koe v. 
 Hersey, 3 Wils. 274. 
 
 * Preston v. Peeke, 27 L. J., Q. B. 424 ; 1 E. B. & B. 336, S. C. 
 
 "• R. V. Waters, 1 Den. 356 ; 2 C. & Kir. 868, S. C. ; R. v. Bowen, 13 Q. B. 
 790 ; Heymann v. R., 8 Law Rep., Q. B. 102 ; 12 Cox, 383, S. C. ; R. v. Gold- 
 smith, 12 Cox, 479 ; R. v. Aspinall, 46 L. J., M. C. 145. 
 
 « Jackson v. Pesked, 1 M. & Sel. 237, per Ld. Ellenhorough ; Staph. PL 
 162—164 ; Spieres v. Parker, 1 T. R. 141 ; Davis v. Black, 1 Q. B. 911, 912, 
 per Ld. Denman, C. J., and Patteson, J. ; 1 G. & D. 432, S. C. ; Harris v. 
 Goodwyn, 2 M. & Gr. 405 ; 2 Scott, N. R. 459 ; 9 Dowl. 409, S. 0. ;Goldthorpe 
 V. Hardman, 13 M. & W. 377. See, also, Smith v. Keating, 6 Com. B. 136 ; 
 KidgUl V. Moor, 9 Com. B. 364 ; and Ld. Delamere v. The Queen, 2 Law Rep., 
 H. L. 419 ; 36 L. J., Q. B. 313, m Dom. Proc, S. C. 
 
104 PRESUMPTIONS IN FAVOXIK OF LEGAL PBOCEEDINGS. [PAET I. 
 
 at the trial, unless it appears from these notes that the evidence was 
 formally tendered.^ 
 
 § 86. The solemnity of an act done, though not done in court, § 73a 
 will also sometimes raise a conclusive presumption in its favour. 
 Thus, where an award professes to be made de praemissis, the 
 presumption is that the arbitrator intended to dispose finally of 
 all the matters in difference ; and his award will be held final, 
 if by any intendment it can be made so.^ A bond, or other 
 specialty, is also presumed to have been made upon good con- 
 sideration, so long as the instrument remains unimpeached.^ By 
 virtue, too, of a statute of the present reign,* "every bill of lading 
 in the hands of a consignee or indorsee for valuable consideration, 
 representing goods to have been shipped on board a vessel, shall 
 be conclusive evidence of such shipment as against the master or 
 other person signing the same,^ notwithstanding that such goods 
 or some part thereof may not have been so shipped, unless such 
 holder of the bill of lading shall have had actual notice at the time 
 of receiving the same, that the goods had not been in fact taken 
 on board; provided, that the master or other person so signing 
 may exonerate himself in respect of such misrepresentation, by 
 showing that it was caused without any default on his part, and 
 wholly by the fraud of the shipper, or of the holder, or some person 
 under whom the holder claims." Again, every conveyance made 
 under the Act for facilitating the sale and transfer of land in 
 Ireland, is, by that statute rendered " for all purposes conclusive 
 evidence" that all previous proceedings leading to such conveyance 
 have been regularly taken ; ^ and every declaration of title by the 
 
 1 Qihha v. Pike, 9 M. & W. 351, 360, 361, per Ld. Abinger, and Alderson, 
 
 B. ; 1 Dowl. N. S. 409, S. C. 
 
 2 Haxrison v. Creswick, 13 Com. B. 399, 416 ; Jewell v. Ckristie, 36 L. J-, 
 
 C. P. 168 ; 2 Law Rep., C. P. 296, S. C. 
 
 ^ Lowe V. Peers, 4 Burr. 2225 ; 3 St. Ev. 930 ; Story, Bills, § 16. See 
 post, § 148. 
 
 ' 18 & 19 v., c. Ill, § 3. 
 
 5 See Meyer v. Dresser, 16 Com. B., N. S. 646 ; 33 L. J., C. P. 289, S. C. ; 
 Jessel V. Bath, 36 L. J., Ex. 149 ; 2 Law Rep., Ex. 267, S. C. 
 
 « 21 & 22 v., c. 72, § 85, Ir. See Power v. Reeves, 10 H. of L. Cas. 645 ; 
 In re Tottenham's estate, 3 Law Rep., Bq. 528. 
 
CHAP, v.] PRESUMPTIONS IN PAVOTJE OP ANCIENT INSTEUMENTS. 105 
 
 Landed Estates Court is as conclusive upon the rights of all parties 
 as any such deed of conveyance.^ 
 
 § 87.^ The law also recognises a conclusive presumption in § 74 
 favour of the due execution of ancient deeds and wills. When 
 these instruments are thirty years old, and are unblemished by 
 any alterations, they are said to prove themselves ; their bare 
 production is suf&cient ; the subscribing witnesses being pre- 
 sumed to be dead. This presumption, — so far as the present 
 rule of evidence is concerned, — is not affected by proof that the 
 witnesses are living,' and it seems, even actually in court ; * nor, 
 in the case of wills, by showing that the testator died within the 
 thirty years.^ But it must appear that the instrument comes 
 from such custody, as though not strictly proper in point of law, 
 is sufficient to afford a reasonable presumption in favour of its 
 genuineness ; ® and that it is otherwise free from just ground of 
 suspicion.'' Whether, if the deed be a conveyance of real estate, 
 the party is bound first to show some acts of possession under it, 
 is a point not perfectly clear upon the authorities ; but the weight 
 of opinion seems to be in the negative, as will hereafter be more 
 fully explained.^ It is also questionable whether the rule applies 
 to an instrument bearing the seal of a court or a corporation ; 
 " because, although the witnesses to a private deed, or persons 
 acquainted with a private seal, may be supposed to be dead, or not 
 capable of being accounted for after such a lapse of time, yet the 
 seals of courts and corporations, being of a permanent character. 
 
 1 21 & 22 v., c. 72, § 51, Ir.; BiUing v. "Weloli, I. E., 6 C. L. 88. 
 
 ^ Gr. Ev. § 21, in great paxt. 
 
 3 Doe V. Buidett, 4 A. & E. 19. 
 
 * Per Yates, J., as cited by Ld. Kenyon in Marsli v. Collnett, 2 Esp. 666. 
 
 5 Doe V. WoHey, 1 B. & C. 22 ; 3 0. & P. 702, S. C. In Jackson v. Blan- 
 shan, 3 Johns. 292, it was held by the Sup. Ct. of New York that the thirty 
 years must be computed from the time of the testator's death. 
 
 « Doe V. Samples, 8 A. & E. 151 ; Bp. of Meath v. M. of Winchester, 3 
 Bing. N. C. 200, 201, per Tindal, C. J., representing all the judges in Dom. 
 Proc. ; 10 Bligh, 462—464, S. C. 
 
 ' Roe V. Rawlings, 7 East, 291. 
 
 8 See Malcomson v. O'Dea, 10 H. of L. Cas. 593, & 614—616 ; cited post, 
 §§ 665, 666. 
 
106 PRESUMPTIONS AS TO ANCIENT DOCUMENTS ESTOPPELS. [PART I. 
 
 may be proved by persons at any distance of time from the date of 
 the instrument to which they are afSxed."^ 
 
 § 88. This rule is not confined to deeds and wills, but extends § 75 
 equally to letters,^ entries,^ receipts,^ settlement certificates,^ and 
 indeed to all other written documents,- and provided that these 
 purport to be thirty years old, and come from the proper custody, 
 the signatures and handwriting need not be proved. In Wynne 
 V. Tyrwhitt the court observed that the rule was founded "on 
 the great difficulty, nay, impossibility, of proving the handwriting of 
 the party after such a lapse of time."^ 
 
 § 89.'' Estoppels may be ranked in this class of presumptions.^ § 76 
 A man is estopped, when he has done or permitted some act, which 
 the law will not allow him to gainsay. " The law of estoppel is not 
 so unjust or absurd, as it has been too much the custom to repre- 
 sent."^ Its foundation rests partly on the obligation to speak and 
 act in accordance with truth, by which every honest man is bound, 
 and partly on the policy of the law, which thus seeks to prevent 
 the mischiefs that would inevitably result from uncertainty, con- 
 fusion, and want of confidence, were men permitted to deny what 
 they had deliberately asserted and received as true. The doctrine 
 of estoppels has, however, been guarded with great strictness ; not 
 because the party enforcing it is presumed to be desirous of exclud- 
 ing the truth ; for the more reasonable supposition is that that is 
 true, which the opposite party has afready solemnly admitted ; but 
 because the estoppel may exclude the truth. Hence estoppels must 
 be certain to every intent; for no one shall be prevented fi-om 
 
 1 Per Ld. Tenterden, C. J., in R. v. Bathwick, 2 B. & Ad. 648. 
 
 2 Doe V. Beynon, 12 A. & E. 431 ; 4 P. & D. 193, S. C, recognising Bere v. 
 Ward, 2 Ph. Ev. 204. 
 
 ^ Wynne v. TyrwMtt, 4 B. & A. 376. 
 
 '' Bertie v. Beaumont, 2 Price, 308. 
 
 ' R. V. Ryton, 5 T. R. 259 ; R. v. Netherthong, 2 M. & Sel. 337. In these 
 cases no proof of the custody was given in evidence, but the court held this to 
 be immaterial. ' 4 B. & A. 377. 
 
 ' Gr. Ev. § 22, in part. 
 
 « By the N. York Civ. Code, § 1792, estoppels are aholished. 
 
 ^ Per Taunton, J., 2 A. & E. 291. 
 
CHAP. V.J ESTOPPELS BIND PARTIES AND PEIVIES. 107 
 
 setting up the truth, unless it be in plain contradiction to his 
 former allegations and acts.^ 
 
 § 90. These last words extend, not only to a man's own allega- § 77 
 tions and acts, but also to those of all persons through whom he 
 claims ; ^ or, to express the same sentiment in the technical 
 language of the law, estoppels are equally binding upon parties 
 and privies? Lord Coke has divided privies into three classes ; 
 first, privies in blood, as heirs; secondly, privies by estate, as 
 feoffees, lessees, assignees, &c. ; and, thkdly, privies in law, " as 
 the lord by escheat, the tenant by the courtesy, the tenant in 
 dower, the incumbent of a benefice,"* husbands suing or defending 
 in right of their wives,^ executors and administrators.* In all 
 these and the Hke cases, the law, acting upon the wise principle, 
 qui sentit commodmm, sentire debet et onus, provides that the privy 
 shall stand in no better position than the party through whom 
 he derives his title ; but that, if the latter is not at Uberty to con- 
 tradict what he has formerly said or done, the former shall be 
 subject to a Hke disability.^ One exception, however, to this rule 
 is admitted in favour of those privies, who would themselves be 
 aggrieved or defrauded by the conduct of the party through whom 
 they claim. For instance, where a man executed a deed with the 
 fraudulent intent of defeating the statutes of mortmain, the court 
 held that his heir-at-law was not estopped from questioning the 
 validity of the indenture, since his claim to the lands was founded, 
 not on the deed, but on his title by descent.* 
 
 § 91. Estoppels are usually divided into three classes ; namely, § 78 
 those by matter of record, those by deed, and those in pais.' The 
 
 1 Bowman v. Taylor, 4 N. & M. 264, and 2 A. & E. 278, 289, per Ld. 
 Denman ; Id. 291, per Taunton, J. ; Lainson v. Tremere, 1 A. & E. 792 ; 
 3 N. & M. 603, S. C. ; Kepp v. Wiggett, 10 Com. B. 53, per Williams, J. ; 
 Pelletreau v. Jackson, 11 Wend. 117 ; 4 Kent, Com. 261, n. ; Carver v. Jack- 
 son, 4 Pet. 83. ' B. N. P. 233. 
 
 ' See post, §§ 787 — 793, as to admissions by privies. 
 
 " Co. Lit. 352 a. * Outram v. Morewood, 3 East, 346. 
 
 « E. V. Hebden, And. 389. ' Taylor v. Needham, 2 Taunt. 278. 
 
 8 Doe V. Lloyd, 5 Bing. N. C. 741. See Smyth v. Wilson, 2 Jebb. & Sy. 660. 
 
 =• Co. Lit. 352 a ; 2 Smith, L. C. 657. 
 
108 ESTOPPELS NOT BINDING UNLESS PLEADED. [PAKT I. 
 
 first class will be more conveniently treated, when the admissibility 
 and effect of Judgments,^ which are the most extensive species of 
 records, come to be discussed ; but it may be here observed, that 
 neither a judgment inter partes, nor a deed, will operate conclusively 
 as an estoppel, unless the matter of estoppel appears on the record,^ 
 and is met by a demurrer,' nor unless it has been expressly pleaded by 
 way of estoppel, at least where an opportunity of so pleading it has 
 been afforded.^ If a party, having such an opportunity, does not 
 avail himself of it, the .court will conclusively presume that he has 
 intended to waive all benefit derivable from the estoppel, and will 
 leave the jury to form their own conclusions from the facts presented 
 to them iu evidence.' If, indeed, no opportunity has arisen for 
 pleading the matter of estoppel in bar, it would seem on principle, 
 that an estoppel by record or by deed ought to be binding when 
 offered iu evidence; and such is the actual rule in some of the 
 United States,^ though in this country the point has not yet been 
 expressly decided.'' 
 
 § 92. With respect, also, to estoppels in pais, no doubt can be § 79 
 entertained, but that they, in general, need not be pleaded in order 
 
 • See post, § 1667, et seq[. 
 
 ^ See Robinson, v. Robinson, L. R., 2 P. D. 75. 
 
 ' Bradley v. Beckett, 7 M. & Gr. 994. 
 
 ■> 2 Smith, L. C. 670, 674, & 683. Tlie whole of Mr. Smith's note, from 
 p. 656 to 726, should be carefully perused. It contains an elaborate ex- 
 position of a very difficult branch of the law. See also Trevivan v. Law- 
 rence, 1 Salk. 276 ; 2 Smith, L. C. 654, S. C. ; Magrath v. Hardy, 4 Bing. 
 N. C. 782. 
 
 5 Outram v. Morewood, 3 East, 346, 365 ; Vooght v. Winch, 2 B. & A. 662 ; 
 Doe V. Huddart, 2 0. M. & R. 316 ; 5 Tyr. 846, S. C. ; Doe v. Seaton, 
 2 C. M. & R. 732, per Parke, B. ; Nowlan v. Gibson, 12 Ir. Law R. 5, 8—12 ; 
 Matthew v. Osborne, 13 Com. B. 919 ; Doe v. Wright, 10 A. & E. 763 ; 
 1 P. & D. 673, S. C. ; Magrath v. Hardy, 4 Bing. N. 0. 782 ; 6 Scott, 627, 
 S. C, as to estoppels by matter of record; Wilson v. Butler, 4 Bing. N. C. 
 748 ; Bowman v. Rostron, 2 A. & E. 295 ; 4 N. & M. 452, S. C. ; Young v. 
 Raincock, 7 Com. B. 310 ; Carpenter v. BuUer, 8 M. & W. 212 ; Potts v. 
 Nixon, 5 I. R., 0. L. 45, as to estoppels by deed; and Freeman ?;. Cooke, 
 per Parke, B., 2 Ex. B. 662 ; 6 Dowl. & L. 189, S. C, as to both kinds 
 of estoppel. 
 
 ' See Howard v. MitcheU, 14 Mass. 241 ; Adams v. Barnes, 17 Mass. 365. 
 ' R. V. Blakemore, 2 Den. 410. See R. v. Haughton, 1 E. & B. 512 ; and 
 Ld. Feversham v. Emerson, 11 Ex. R. 385. 
 
CHAP, v.] NO ESTOPPEL FROM SETTING UP ILLEGALITY. 109 
 
 to make them obligatory ; as, for instance, if a man were to repre- 
 sent another as his agent, in order to procure a person to contract 
 with him as such, and this person were so to contract, the contract 
 would bind the principal equally with one made by himself, and no 
 form of pleading could leaye such a matter at large, and enable the 
 jury to treat it as no contract.^ So, if an indorsee were to sue an 
 acceptor on a bill payable to the order of the drawer, and the de- 
 fendant were to plead that the drawer had no authority to indorse, 
 the plaiatiff, though he might reply the estoppel,^ would not be 
 forced to do so, but he might demur to the plea, as setting up no 
 legal answer to the action.^ 
 
 § 93. It seems now clearly settled that a party is not estopped by § 80 
 his deed from avoiding it by proving that it was executed for a frau- 
 dulent, illegal, or immoral purpose. In one case,* indeed, where a 
 man, ia order to give his brother a colourable qualification to kill 
 game, conveyed some lands to him, the court held that his widow 
 could not avoid this conveyance in an action of ejectment brought 
 against her by the brother ; and in the subsequent case of Prole v. 
 "Wiggins, Sir Nicholas Tindal observed that this decision rested 
 on the fact, that "the defence set up was inconsistent with the 
 deed."' The case, however, can scarcely be supported by this 
 circumstance, for in an action of ejectment by the grantee of an 
 annuity, to recover premises on which it was secured, the grantor 
 was allowed to show that the premises were of less value than the 
 annuity, and, consequently, that the deed required enrolment, 
 although he had expressly covenanted in the deed that the premises 
 were of greater value.^ So, also, where a bond has been given, or 
 
 1 Freeman v. Cooke, 2 Ex. R. 662 ; 5 Dowl. & L. 189, S. C, per Parke, B. 
 
 2 Sanderson v. Collman, 4 M. & Gr. 209. 
 
 3 Hallifax v. Lyle, 3 Ex. E. 446 ; 6 Dowl. & L. 424, S. 0. 
 
 * Doe V. Eoberts, 2 B. & A. 367. See also Phillpotts v. PMLlpotts, 10 Com. 
 B. 85. 5 3 Bijig, ]sr. C. 235. 
 
 ^ Doe V. Eord, 3 A. & E. 649. In this case a question was raised whether a 
 covenant, under any circumstances, is such a declaration as to estop a party from 
 afterwards disputing the fact covenanted for, but the point was left undecided. 
 In America a party may, in some cases, he estopped by a covenant. Thus a 
 covenant of warranty estops the grantor from setting up an after-acquired title 
 against the grantee, for it is a perpetually operating covenant ; Terrett v. 
 
110 ESTOPPEL BY DEED TRUSTEES FOR THE PUBLIC. [PART I. 
 
 a covenant made, for an illegal consideration, the obligor or cove- 
 nantor is not debarred from avoiding the instrument by pleading 
 and proving the illegality ;i and this too, though a legal, but 
 untrue, consideration is stated on the face of the deed.^ Indeed, 
 the better opinion seems to be, that where both parties to an in- 
 denture either know, or have the means of knowing, that it was 
 executed for an immoral purpose, or in contravention of a statute, 
 or of public policy, neither of them will be estopped from proving 
 these facts which render the instrument void ab initio ; ^ for although 
 a party will thus, in certain cases, be enabled to take advantage of 
 his own wrong,* yet this evil is of a trifling nature in comparison 
 with the flagrant evasion of the law, that would result from the 
 adoption of an opposite rule.^ It seems scarcely necessary to add 
 that a party is not estopped by his deed, if he executed it while, 
 from duress, infancy, or other cause, he was incapable of makiag a 
 valid contract, or if he was deceived by the fraudulent misrepresen- 
 tations or acts of other parties.^ 
 
 § 94. At one time it was thought, that trustees acting for the § 81 
 benefit of the public would not be estopped from disputing the 
 validity of their deeds, because, if they were, the innocent parties. 
 
 Taylor, 9 Orancli, 43 ; Jackson v. Matsdorf, 11 Jolins. 97 ; Jackson v. Wriglit, 
 14 Johns. 193 ; M'Williams v. Nisby, 2 Serg. & E. 515 ; Somes v. Skinner, 
 3 Pick. 52 ; but be is not estopped by a covenant, tbat be is seised in fee and 
 bas good rigbt to convey ; Allen v. Sayward, 5 Greenl. 227 ; for any seisin, in 
 fact, tbougb by WTong, is sufficient to satisfy tbis covenant, its import being 
 merely tbis, tbat be bas tbe seisin in fact, at tbe time of conveyance, and 
 thereby is qualified to transfer tbe estate to tbe grantee. 
 
 1 Prole V. Wiggins, 3 Bing. N. C. 230 ; 3 Scott, 607, S. C. ; Collins v. 
 Blantem, 2 Wils. 341 ; 1 Smith, L. C. 310, S. C. ; Gas Light & Coke Go. 
 V. Turner, 5 Bing. N. 0. 666 ; affd. in Ex. Ch., 6 Bing. N. C. 324 ; Stratford 
 & Moreton R. Co. v. Stratton, 2 B. & Ad. 518 ; Hill v. Manob. Waterw. Co., 
 id. 552, 553 ; Benyon v. Nettlefold, 3 M. & Gord. 94 ; Horton v. Westm. 
 Improve. Comis., 7 Ex. R. 780. 
 
 ^ Paxton v. Popbam, 9 East, 419. 3 Id.. 
 
 ^ Doe V. Eord, 3 A. & R. 654, per Ld. Denman ; Doe v. Howells, 2 B. & 
 Ad. 747. 
 
 ^ Benyon v. Nettlefold, 20 L. J., Ch. 186, 187 ; 3 M. & Gord. 102, S. C. 
 See MaUalieu v. Hodgson, 16 Q. B. 689 ; Bowes v. Foster, 2 H. & N. 779 ; 
 Taylor v. Bowers, 46 L. J., Q. B. 39. 
 
 •^ Hayne v. Maltby, 3 T. R. 438. 
 
CHAP, v.] PERSONS ACTING IN DIFFERENT CAPACITIES. Ill 
 
 on whose behalf they were acting, might be seriously injured.^ 
 This doctrine, howeyer, is now distinctly confined to those cases 
 in which the trustees for the public have, in their dealings with 
 another party, violated a public statute, the contents of which are 
 presumed to be known to such party. Therefore, where a bridge 
 Act authorised commissioners to mortgage the tolls, and enacted 
 that the mortgagees should have no preference by reason of priority, 
 the court held that, in an action of ejectment brought by a mortga- 
 gee of the tolls against the commissioners, the defendants were 
 estopped from setting up the fact of an earlier mortgage to defeat 
 the legal estate of the lessor of the plaintiff. In this case, no pre- 
 sumption could be made as to the mortgagee's knowledge of the 
 fact that a previous mortgage had been made ; and the judges con- 
 sidered that there was no authority for holding, that trustees for a 
 public purpose were in any peculiar state of protection on such 
 a point.^ 
 
 § 95. Though an estoppel may bind a person acting in one 
 capacity, it does not necessarily follow that it will have a similar 
 effect, when such party is sustaining a totally different character.^ 
 Thus, where an executor de son tort verbally agreed with the land- 
 lord of the intestate to deliver up the premises demised, and after- 
 wards took out letters of administration, he was held not concluded 
 from bringing an action of ejectment against the landlord, who had 
 actually obtained possession under the agreement.* But if "an 
 heir apparent, having only the hope of succession, conveys, during 
 the life of his ancestor, an estate, which afterwards descends upon 
 
 1 Fairtitle v. Gilbert, 2 T. E. 169 ; Doe v. Hares, 4 B. & Ad. 440, per 
 Littledale, J. 
 
 2 Doe V. Home, 3 Q. B. 757, 766, 767; R. v. WHte, 4 Q. B. Ill, 112; 
 Horton v. Westm. Improve. Comrs., 7 Ex. E. 780. 
 
 3 2 Smitli, L. C. 667 ; Eobinaon's case, 5 Eep. 32 b ; Com. Di. Estoppel, C. ; 
 2 Co. Lit. 365 5 ; Smyth v. Wilson, 2 Jebb & Sy. 660 ; Leggott v. Gt. N. 
 Ey. Co., L. E., 1 Q. B. D. 599 ; 45 L. J., Q. B. 557, S. C. See Beimett v. 
 Gamgee, 46 L. J., Ex. 33 ; S. C. aff. on app. id. 204. 
 
 ■■" Doe V. Glenn, 1 A. & E. 49 ; 3 N. & M. 837, S. C. See, also, Middleton's 
 case, 5 Eep. 21 ; Matters v. Brown, 32 L. J., Ex. 138 ; 1 H. & 0. 686, S. C. ; 
 Lyons v. Mulderry, Hayes, E. 530 : Kirwan v. Gorman, 9 Ir. Eq[. R. 154 ; 
 Jolinson V. Warwick, 25 L. J., 0. P. 102. 
 
 82 
 
112 ESTOPPELS BY DEED. [PART I. 
 
 him, although nothing passes at that time, yet, when the inheri- 
 tance descends upon him, he is estopped to say that he had no 
 interest at the time of the grant." ^ The distinction hetween these 
 two cases appears to he this, that in the former, the party not es- 
 topped was acting for the benefit of others ; in the latter, the party 
 estopped was sui juris. 
 
 § 96. In regard to estoppels by deed, a party is not prevented § 83 
 from disputing the correctness of that which is not an essential 
 averment, but is mere description ; such, for instance, as the date 
 of the deed ; the quantity of land ; its nature, whether arable or 
 meadow ; and the like ; for these are but incidental and collateral 
 to the principal matter, and may be supposed not to have received 
 the deliberate attention of the parties.^ , It seems, however, that in 
 this country, if a deed of conveyance distinctly states in the opera- 
 tive part that the consideration money has been received, and the 
 estoppel is properly pleaded,^ the fact of payment, and the amount 
 paid, are conclusively presumed ; * although a receipt indorsed upon 
 the deed will not in itself amount to an estoppel.^ In America,^ 
 though the party is estopped from denying the conveyance, and that 
 it was for a valuable consideration, the weight of authority is in 
 favour of treating the statement in the deed as only prima facie 
 evidence of the amount paid, in an action of covenant by the grantee 
 to recover back the consideration, or in an action of assumpsit by 
 the grantor, to recover the price which is yet unpaid.''' 
 
 1 Hayne v. Malfby, 3 T. R. 441, per Ld. Kenyon. 
 
 2 Com. Di. Estoppel, A. 2 ; Yelv. 227, by Metcalfe, n. 1 ; Doddington's 
 case, 2 Co. 33 ; SMpworth v. Green, 8 Mod. 311 ; 1 Str. 610, S. C. 
 
 ' Potts V. Nixon, I. E., 5 C. L. 45. 
 
 * Shelly V. "Wright, Willes, 9 ; Cossens v. Cossens, id. 25 ; Rowntree v. 
 Jacob, 2 Taunt. 141, in wMcIl last case there were highly suspicious circum- 
 stances tending to show that the consideration money had not in fact been 
 paid ; Baker v. Dewey, 1 B. & C. 704 ; Lampon v. Corke, 5 B. & A. 606 ; Hill 
 V. Manch. Waterw. Co., 2 B. & Ad. 544. See Smith v. Battams, 26 L. J., 
 Ex. 332 ; also Gresley v. Mousley, 3 De Gex, F. & J. 433. 
 
 5 Lampon d. Corke, 5 B. & A. 611, per Hoboyd, J., 612, per Best, J. ; 
 Straton v. EastaU, 2 T. R. 366. 
 
 « Gr. Ev. § 26, n., almost verbatim. 
 
 ' The principal cases will be found referred to in the former editions of this 
 Work. 
 
CHAP. V.J ESTOPPELS EECITALS IN DEEDS. 113 
 
 § 97. The question how far parties are bound by recitals^ in § 84 
 deeds has of late years been much discussed ; and the doctrine of 
 Lord Coke, that " a recital doth not conclude, because it is no direct 
 affirmation,"^ has been expressly overruled. The law on this 
 subject has been ably expounded by Baron Parke, in Carpenter v. 
 Buller.^ " If a distiact statement of a particular fact is made in 
 the recital of a bond, or other instrument under seal, and a contract 
 is made with reference to that recital, it is unquestionably true, 
 that, as between the parties to that instrument, and in an action 
 upon it, it is not competent for the party bound * to deny the re- 
 cital, notwithstanding what Lord Coke says on the matter of recital 
 in Coke Littleton, 352 b ; and a recital in instruments not under 
 seal may be such as to be conclusive to the same extent. A strong in- 
 stance as to a recital in a deed, is found in the case of Lainson v. 
 Tremere,^ where, in a bond to secure the payment of rent under a 
 lease stated, it was recited that the lease was at a rent of 170Z., and 
 the defendant was estopped from pleading that it was 140Z. only, 
 and that such amount had been paid. So, where other particular 
 facts are mentioned in a condition to a bond, as that the obligor and 
 his wife should appear, the obligor cannot plead that he appeared 
 himself, and deny that he is married, in an action on the bond.^ All 
 the instances given in Com. Dig., Estoppel, A. 2, under the head of 
 ' Estoppel by Matter of Writing ' (except one which relates to a 
 release), are cases of estoppel in actions on the instrument in which 
 the admissions are contained. By his contract in the instrument 
 itself a party is assuredly bound, and must fulfil it. But there is 
 
 ' As to the effect of recitals in a deed which has heen tendered for execution 
 but not executed, see Bulley v. Bulley, 44 L. J., Ch. 79. 
 
 2 Co. Lit. 352 6. 
 
 3 8 M. & W. ,212. As to other cases where a recital has been held conclusive, 
 see Bowman v. Taylor, 2 A. & B. 278 ; HiUs v. Laming, 9 Ex. R. 256 ; Lainson 
 V. Tremere, 1 A. & E. 792 ; 3 N. & M. 603, S. C. ; R. v. Stamper, 1 Q. B. 123; 
 Hm V. Manch. Waterw. Co., 2 B. & Ad. 544 ; Pargeter v. Harris, 7 Q. B. 708. 
 See, also, Bayley v. Bradley, 5 Com. B. 396 ; Young v. Raincock, 7 Com. B. 
 310 ; Horton v. Westm. Improve. Comrs., 7 Ex. R. 780 ; and Hungerford v. 
 Beecher,5 Ir. Eq. R.,N. S. 417. But see Lindsay -y.E. of Wicklow, I. R. 7 Eq. 192. 
 
 ■• Even though she be a married woman, Semble per Ld. J. James, ia Jones 
 V. Frost, in re Fiddey, 7 Law Rep., Ch. App. 773. 
 
 5 1 A. & E. 792 ; 3 N. & M. 603, S. C. See Brooke ■». Haymes, 6 Law Rep. 
 Eq. 25. « 1 RoU. Abr. 873, c. 25. 
 
114 WHEN EBCITALS OPERATE AS ESTOPPELS. [PART I. 
 
 no authority to show that a party to the instrument would be es- 
 topped, in an action by the other party, not founded on the deed, 
 and wholly collateral to it,i to dispute the facts so admitted, though 
 the recitals would certainly be evidence ; for instance, in another 
 suit, though between the same parties, where a question should 
 arise whether the plaintilF held at a rent of 170Z. in the one case, or 
 was married in the other case, it could not be held that the recitals 
 in the bond were conclusive evidence of these facts. Still less 
 would matter alleged in the instrument, wholly immaterial to the 
 contract therein contained ; as, for instance, suppose an indenture 
 or bond to contain an unnecessary description of one of the parties 
 as assignee of a bankrupt, overseer of the poor, or. as filling any 
 other character, it could not be contended that such statement 
 would be conclusive on the other party, in any other proceeding 
 between them." 
 
 § 98. From this passage it would appear that, to make a recital x 55 
 operate as an estoppel, there must be, first, a distinct statement ^ 
 of some material ^ particular * fact ; secondly, a contract made with 
 reference to such statement ; ' and, thirdly, either an action directly 
 founded on the instrument containing the recital, or one which 
 is brought to enforce the rights arising out of such instrument.® 
 In the event of these requisites being satisfied, it would further 
 
 ' See S.-East. Ry. Co. v. Wajton, 31 L. J., Ex. 515. 
 
 2 See Kepp v. Wiggett, 10 Com. B. 35. 
 
 ' In Carpenter v. Bnller, 8 M. & W. 213, the court were strongly inclined 
 to think that, in a deed relating to an adit, a recital that certain neighbouring 
 lands, through which the adit did not pass, belonged to A. B., was an imma- 
 terial matter, which a party to the deed was not estopped from denying. The 
 point, however, was not directly decided, as the admission was held inconclusive 
 on other grounds. 
 
 '' As to the distinction between generality and particularity, see Com. Dig., 
 Estoppel, A. 2, and notes to Eainsford v. Smyth, Dyer, 196 a. 
 
 5 In StrongMll v. Buck, 14 Q. B. 787, the court thus stated the law :— 
 " "Where a recital is intended to be a statement, which aU the parties to the 
 deed have mutually agreed to admit as true, it is an estoppel upon all. But 
 where it is intended to be the statement of one party only, the estoppel is 
 confined to that party, and the intention is to be gathered from construing the 
 instrument." See, also. Young v. Raincock, 7 Com. B. 310. 
 
 Wiles D. Woodward, 5 Ex. R. 557, 563 ; Carter v. Carter, 27 L. J., Ch. 74 
 84, 85, per Wood, V.-C; Eraser v. Pendlebury, 31 L. J., C. P. 1. ' 
 
CHAP, v.] ESTOPPELS MUST BE KECIPKOCAL. 115 
 
 seem, that the doctrine may, in some cases, be extended to in- 
 struments not under seal. In all cases of estoppel by recital, the 
 matter recited requires no proof ; since the recital is not offered 
 as secondary, but as primary evidence, which cannot be con- 
 troverted, and which forms a muniment of title. This rule, 
 however, only applies to so much of a deed as is actually recited ; 
 and therefore if it becomes necessary to rely on any other part of 
 such deed, it must be produced and proved in the regular way.^ 
 
 § 99. Eeturning from the limited question of recitals to the § 86 
 general doctrine of estoppels, it is important to bear in mind this 
 rule : that every estoppel must be reciprocal ; that is, it must bind 
 both parties, since a stranger can neither take advantage of an 
 estoppel, nor be bound by it.^ Thus, where a party, possessed 
 of chambers in Lincoln's Inn, which he held as tenant-at-will 
 under the benchers, recited in a deed, by which he conveyed his 
 interest to A., that he was seised of these chambers for life, and 
 subsequently surrendered them to the benchers, who admitted B. 
 as tenant, the court held that B., in defending an action of eject- 
 ment brought against him by A., was not estopped from denying 
 that the surrenderor was seised for life.^ So, where a tenant took 
 certaiQ lands from the assignees of a bankrupt, by a deed in 
 which they were described as freehold, he was held not estopped, 
 as against the bankrupt's wife, who claimed dower, from proving 
 that they were in fact leasehold.* So, a conviction of an indict- 
 ment for obstructing a public highway cannot be pleaded as an 
 estoppel, in an action brought by the party convicted against a 
 third person for using the way.^ Again, the grantee, or lessee 
 of a deed-poll, is not, in general, estopped from gainsaying any- 
 thing mentioned in the deed ; for it is the deed of the grantor or 
 lessor only; yet if such grantee or lessee claim title under the 
 deed, he is hereby estopped to deny the title of the grantor.^ An 
 
 1 GiUett V. ATobott, 7 A. & E. 783 ; 3 N. & P. 24, S. C. 
 
 2 Co. Lit. 352 a. 
 
 3 Doe V. Errington, 6 Bing. N. C. 79. 
 
 ' Gaunt V. "Waiiunan, 3 Bing. N. C. 69. 
 
 5 Petrie v. Nuttall, 11 Ex. R. 569. 
 
 ^ Co. Lit. 363 b ; Goddard's case, 4 Co. 44. 
 
 ] 2 
 
116 ESTOPPELS BY DEED ESTOPPELS IN PAIS. [PAKT I. 
 
 exception to this rule requiring reciprocity in estoppels would per- 
 haps be recognised in the case of deed-polls, because in these in- 
 struments only one party is intended to be bound, and as he has 
 executed a deed with the same solemnities as an indenture, no yalid 
 reason can be urged why the doctrine of estoppel should not apply 
 to him.-' 
 
 § 100. A further rule with respect to estoppels by deed is this, § 87 
 that a deed which can take effect by interest shall not be construed 
 to take effect by estoppel.^ Thus, if a lessor has any interest in the 
 demised premises, even though it be for a less period than he pro- 
 fesses to grant, the lease shall not work by estoppel, but shall enure 
 to the extent of the lessor's interest, and no further.^ But if a 
 person, having no title whatever, makes a lease by indenture, this 
 will estop the parties to the deed from alleging the lessor's want of 
 title during the continuance of the lease ; and if the lessor subse- 
 'quently purchases the land, or otherwise obtains an interest in it, 
 the lease, which was originally a lease by estoppel, will be converted 
 into a lease in interest, and the heir or assignee of the lessor will be 
 bound thereby, as well as the lessee and his assignees.* 
 
 § 101. The most ordinary instance of estoppel by matter in pais, ^ § 88 
 is the well-established rule, that a tenant, during his possession of 
 premises, shall not deny that the landlord, under whom he has 
 entered, or from whom he has taken a renewal of his holding,* and 
 to whom he has paid rent, had title at the time of his admission.''' 
 Thus, whether the landlord brings ejectment, or an action for rent 
 or for use and occupation against his tenant, the defendant can 
 
 1 2 Smitli, L. C. 660 ; Bao. Ab., tit. Leases, O. 
 
 2 Doe V. Barton, 11 A. & E. 311, per Patteson, J. 
 
 3 Id. in argument ; Co. Lit. 45 a, 47 b ; Doe v. Seaton, 2 C. M. & R. 730, 
 per Parke, B.; Walton v. Waterhouse, 3 Wms. Saund. 417 a, et seq. 
 
 ■> We"bb V. Austin, 7 M. & Gr. 701 ; Sturgeon v. Wingfield, 15 M. & W. 224. 
 
 ^ As to " judicial admissions,'' and " admissions acted upon," whicli some- 
 times are classed among- estoppels in pais, see post, §§ 772, 783, 820, et seq., 
 839, et seq. 
 
 = Doe V. Wiggins, 4 Q. B., 367. 
 
 ? Doe V. Pegge, 1 T. E. 760, n.,per Ld. Mansfield; Doe v. Barton, 11 A. 
 & E. 307, 312 ; 3 P. & D. 194, S. C. See Att.-Gen. v. Stephens, 1 Kay & J. 
 744^747, per Wood, V.-C; 6 De Gex, M. & G. Ill, S. C. 
 
^CHAP. v.] ESTOPPEL IN PAIS LANDLORD AND TENANT. 117 
 
 neither set up the superior title of a third person,^ nor show that 
 the landlord has no title ; as, for instance, if the plaintiff be an 
 incumbent, by giving evidence of a simoniacal presentation,^ or, if 
 he be a devisee, by proving that the devisor was incapable of making 
 a will.^ In this last case, indeed, the evidence might be admis- 
 sible as part of the tenant's case, if he could show that the party 
 claiming as devisee had been guilty of fraud in making the wUl, 
 and in falsely representing it to him as a valid one ; * but, except- 
 ing in the instance of a clear case of fraud being established, the 
 only course which a tenant can pursue, who wishes to dispute the 
 title of the landlord under whom he entered, is to yield up the 
 premises, and then bring ejectment.^ So strict is this rule, that, 
 even should a landlord, while proving his own case, in an action 
 against the tenant for use and occupation, disclose the fact that he 
 himself had only an equitable or a joint estate in the premises, the 
 tenant cannot avail himself of that circumstance as a defence to the 
 action.^ Neither can a lessee, who has once accepted a lease and 
 paid rent under it, dispute the lessor's title, though the deed itself 
 admits upon its face some infirmity in that title.''' And where a 
 tenant has held premises under a corporation aggregate, and paid 
 rent, he cannot object to their suing him for use and occupation, on 
 the ground that a corporation cannot demise except by deed, and 
 that he has occupied without deed.^ This rule, too, is applicable 
 in an action of trespass, as well as in ejectment ; ® and it is binding. 
 
 ' Doe V. Pegge, 1 T. R. 760, n., per Ld. Mansfield. 
 
 2 Cooke v. Loxley, 5 T. E. 4. 
 
 3 Doe V. Wiggins, 4 Q. B. 367. 
 
 ^ Per Ld. Denman, in Doe v. Wiggins, 4 Q. B. 375. 
 
 5 Per Coleridge, J., in id. 377; Doe v. Lady Smytlie, 4 M. & Sel. 348. 
 
 5 Dolby V. nes, 11 A. & E. 335. 
 
 ^ Duke V. Ashby, 7 H. & N. 600 ; Morton v. Woods, 3 Law Hep., Q. B. 
 658 ; 37 L. J., Q. B. 242, S. C. ; 4 Law Rep., Q. B. 293, S. C, in Ex. Ck. ; 
 & 9 B. & S. 632. 
 
 8 May. of Stafford v. Till, 4 Bing. 75 ; 12 Moore, 260, S. C; Dean and Ck. 
 of Eockester v. Pierce, 1 Camp. 466 ; recognised in Fiskmongers' Co. u. Robert- 
 son, 5 M. & Gr. 194. See Eccles. Commiss. v. Merral, 4 Law Rep., Ex. 162 ; 
 38 L. J., Ex. 93, S. C. ; also post, § 984. 
 
 9 Delaney v. Fox, 26 L. J., C. P. 248 ; 2 Com. B., N. S. 768, S. C. ; quakfy- 
 ing a dictum of PoUock, C. B., in Watson v. Lane, 25 L. J., Ex. 102. See, aiso, 
 Ward V. Ryan, I. R. 10 C. L. 17, per Ex. Ck. 
 
118 ESTOPPEL IN PAIS — LANDLOED AND TENANT. [PAET I. . 
 
 not only on the tenant himself, but on all who claim in any way 
 through him.^ Thus, where a lessee gave up possession of the 
 premises to a party claiming them by a title adverse to that of the 
 lessor, and prior to the lease, that party was held to be estopped, as 
 the lessee would have been, from disputing the landlord's title.^ 
 The principle of this rule extends also to the case of a person 
 coming in by permission as a mere lodger, a servant, or other 
 licensee.^ 
 
 § 102. But though a tenant cannot deny that the person by § 89 
 whom he was let into possession had title at the commencement 
 of the tenancy, he may show that he had no title at a previous 
 time. Thus, where in ejectment the defendant claimed under a 
 conveyance from a certain company, bearing date 1824, he was ' 
 allowed to dispute the title of the company to convey the same 
 premises to the lessor of the plaintiff in 1818.* So, where a lessee 
 had been let into possession in 1826 under a demise from a tenant 
 for life, and after the death of the tenant for life an ejectment was 
 brought against him by the reversioner, on the ground that the 
 lease was void, the court, while they admitted that the interests 
 of the tenant for life and of the reversioner were so far identical as 
 to preclude the lessee from showing adverse title in another at the 
 date of the lease, allowed him to prove that, before the year 1826, 
 the legal estate was outstanding in a third party, and that, conse- 
 quently, the reversioner, who claimed in common with the tenant 
 for life under a settlement of a much earlier date, had no legal title 
 to the premises.^ Again, a tenant may prove that, since the com- 
 
 1 Lond. & N.-West. Ey. Co. v. West, 2 Law Rep., C. P. 553 ; 3§ L. J., C. P. 
 245, S. C. 
 
 2 Doe V. Mills, 2 A. & E. 17; Doe v. Lady Smytlie, 4 M. & S. 347; Taylor v. 
 Needham, 2 Taunt. 278. 
 
 ' Doe V. Baytup, 3 A. & E. 188. In tliis case a woman asked leave to get 
 vegetables in the garden, and having obtained the keys for this purpose, fraudu- 
 lently took possession of the house and set up a title. The court held that she 
 could not defend an ejectment, but must deliver up the premises before 'she 
 contested the title. See, also. Doe v. Birchmore, 9 A. & E. 662. 
 
 ^ Doe V. Powell, 1 A. & E. 531. 
 
 * Doe V. Langdon, 12 Q. B. 712 ; Doe v. Whitroe, D.-& E., N. P. C. 1. 
 
CHAP. V.J ESTOPPEL IN PAIS LANDLORD AND TENANT. 119 
 
 mencement of the tenancy, the title of his lessor has expired or 
 been defeated.^ Thus, he may prove that his landlord was a tenant 
 pour autre vie, and that the cestui que vie is dead ; or that he was 
 a tenant from year to year, and that the superior landlord had given 
 him a notice to quit, or that he was a mere tenant at will, and that 
 the will had been determiued.^ So, also, the tenant may show, that 
 the person who let him in was a mortgagor in possession, who, not 
 being treated as a trespasser, had title to confer on him the legal 
 possession ; and he may then further prove that this party has sub- 
 sequently been treated as a trespasser, whereby both the mort- 
 gagor's title, as well as his own rightful possession under him, have 
 been determined.^ In short, he may rely on any fact, which either 
 amounts to an eviction by title paramount,* or shows that the title 
 of his landlord has expired.^ 
 
 § 103, As to what constitutes a letting into possession, some § 90 
 
 1 Doe V. Barton, 11 A. & E. 312, per Ld. Denman; Hoporaft v. Keys, 9 
 Bing. 613. See Bayley v. Bradley, 5 Com. B. 396 ; Watson v. Lane, 11 Ex. 
 E. 769 ; Langford v. Selmes, 3 Kay & J. 220 ; Howe v. Soarrott, 4 H. & N. 
 723 ; Lond. & N.-West. Ry. Co. v. West, 36 L. J., C. P. 245 ; 2 Law Eep., 
 C. P. 553, S. C. 
 
 2 Doe V. Barton, 11 A. & E. 314. 
 
 ' Id. p. 315. It is now determined that a mortgagee, by simply giving 
 notice to the tenant to pay rent to Mm, does not treat the mortgagor as a 
 trespasser ; Hickman v. Maohin, 4 H. & N. 716 ; hut a notice, to have such an 
 effect, must either be coupled with an attornment, or be followed by actual 
 payment of rent, to the mortgagee. See id. ; also Wilton v. Dunn, 17 Q. B. 
 294 ; Turner v. Cameron's Coalbrook St. Coal Co., 5 Ex. E. 932 ; Litchfield v. 
 Eeady, id. 939 ; Trent v. Hunt, 9 Ex. R. 22, 23. 
 
 * Gouldsworth v. Knights, 11 M. & W. 344. 
 
 * Downs V. Cooper, 2 Q. B. 256. In that case, A. demised premises to B., 
 and during the term C. claimed the property. The matter was referred, and 
 the arbitrator awarded in C.'s favour. A. thereupon deKvered up the title 
 deeds to C, and permitted him to teU B. to pay the rent in future to him, C. B. 
 did so, but A. afterwards distrained for the same rent. On replevin, avowry, 
 and plea in bar stating the above facts, held that A.'s title had expired ; that 
 his conduct was an admission of that fact, and that B. was not estopped from 
 alleging it ; and per Ld. Denman, that A., having induced B. to pay rent to 
 C, was estopped from setting up his relation of landlord against B. See Doe 
 V. Watson, 2 Stark. E. 230 ; Doe v. Seaton, 2 C. M. & E. 728 ; Claridge v. 
 Mackenzie, 4 M. & Gr. 152 ; Mountnoy v. Collier, 22 L. J., Q. B. 124 ; 1 E. & 
 B. 630, S. C. ; Emery v. Barnett, 27 L. J., C. P. 216 ; Dehnege v. MulUns, I. 
 R. 9 C. L. 209, per Ex. Ch. 
 
120 WHAT CONSTITUTES A LETTING INTO POSSESSION. [PAET X. 
 
 doubt exists. In one case, where a party was in possession of 
 premises without leaye obtained from any one, and a person came 
 to him and said, " You have no right to the premises," upon 
 which he acquiesced, and took a lease from this person, the court 
 held that the relation of landlord and tenant was sufficiently created 
 to debar the one from disputing the title of the other.^ But in a 
 subsequent case, where a tenant, being already in possession of 
 premises under a demise from a termor, had at the expiration of 
 the termor's right, when his own title also expired, entered into a 
 parol agreement with another party to hold the premises under him ; 
 but it appeared that he had done so in ignorance of the real facts of 
 the case, and under the supposition that this party was entitled to 
 the premises ; it was held that the agreement was not equivalent to 
 the first letting into possession. '^ This question may, in certain 
 cases, become highly important, because neither a parol agreement 
 by a tenant to hold premises of a party, by whom he was not let into 
 possession,^ nor an attornment,* nor an actual payment of rent to 
 such party, even under a distress,^ will in themselves operate as 
 estoppels ; but the tenant may still show that he has acted in ignor- 
 ance, or under a misapprehension of the real circumstances,^ or, in 
 the case of payment of rent, that some other party was entitled to 
 receive it.'' 
 
 1 Doe D. Mills, 2 A. & E. 20, per Patteson, J. See also Dolby v. lies, 11 
 A. & B. 335. 
 
 2 Claridge v. Mackenzie, 4 M. & Gr. 143 ; 4 Scott, N. R. 726, S. G "The 
 witness speaks of a new agreement having been entered into between the 
 plaintiff and the defendant, that the former should continue in possession as 
 tenant to the latter ; but there was no new possession given by the defendant ; 
 she was in no way prejudiced ; she could not have turned the plaintiff out of 
 possession ; and before their agreement, if she had brought her ejectment, 
 the plaintiff might have shown that she had no title, and that the title was 
 in some one else. It is not like the case of a person letting another into 
 possession of vacant premises ; it is in fact a remaining in possession of 
 premises, which, had been formerly occupied by the tenant." Per Tindal, C. J., 
 4 M. & Gr. 152. ' Id. * Doe v. Brown, 7 A. & E. 447. 
 
 5 Knight V. Cox, 18 Com. B. 645, S. C, nom. Cox v. Knight^ 25 L. J., 
 C. P. 314. 
 
 ^ Gregory v. Doidge, 3 Bing. 474 ; 11 Moore, 394, S. C. ; Gravenor v. Wood- 
 house, 1 Bing. 38 ; 7 Moore, 289, S. C. ; Rogers v. Pitcher, 6 Taunt. 202 ; 1 
 Marsh. 541, S. C. ; Doe v. Barton, 11 A. & E. 313 ; 3 P. & D. 194, S. C. ; Hall 
 V. Butler, 10 A. & E. 206, per Patteson, J. 
 
 ^ Cooper v. Blandy, 1 Bing., N. C. 49, 50 ; Doe v. Francis, 2 M. & Rob. 57 ; 
 
CHAP, v.] CONCLUSIVE PRESUMPTIONS — INFANTS. 121 
 
 § 104.^ ConclusiYe prestimptions of law are also made witli re- § 9\^ 
 spect to infants.^ Thus, an infant under the age of seven years is 
 conclusively presumed to be incapable of committing any felony for 
 want of discretion ; ^ and under fourteen a male infant is presumed 
 incapable, on the ground of impotency, of committing a rape as a 
 principal in the first degree,'' or even of committing an assault with 
 intent to perpetrate that crime.' So, a female under the age of 
 twelve years is presumed incapable of consenting to sexual inter- 
 course.® An infant under the age of twenty-one years is presumed 
 to be so far incapable of managing his own affairs, that he cannot, 
 in general,'' alien his land, or execute a deed,^ or state an account. 
 
 in which case payment of rent being the only evidence of tenancy, Patteson, 
 J., allowed the defendant to show, that the lessor of the plaintiff had acted 
 as the agent of third parties. See Hitchings v. Thompson, 5 Ex. E. 50, 
 explained by Ld. Cranworth, C, ia Att.-Gen. v. Stephens, 6 De Gex, M. & 
 G. 141. 
 
 1 Gr. Ev. § 28, in part. 
 
 ^ In all civil questions where the rights of parents depend on the birth of a 
 living child, the Scotch law conclusively presumes that the child was not bom 
 alive, if it was not heard to cry. 1 Dickson, Ev. 180. 
 
 •' 4 Bl. Com. 23 ; 1 Hale, 27. If an infant under seven is given into custody 
 on a charge of felony, an action for false imprisonment wiU lie ; Marsh v. 
 Lowder, 2 New R. 280, per C. P. ; S. 0., nom. Marsh v. Loader, 14 Com. B., 
 N. S. 535. 
 
 " 1 Hale, 630 ; 1 Russ. C. & M. 676. This presumption is not affected by 
 24 & 25 v., 0. 100, § 48 ; R. v. Groombridge, 7 0. & P. 582, per Gaselee, J., 
 and Ld. Abinger ; and it applies to the offence of carnally abusiug a girl 
 under twelve years of age ; R. v. Jordan, 9 C. & P. 118, per WiUiams, J. But 
 if the boy have a mischievous discretion, he may be a principal in the second 
 degree, 1 Hale, 630. The patient may be convicted of an unnatural crime, 
 though the agent be under fourteen ; R. v. AUen, 1 Den. 364 ; 2 C. & Kir. 
 869, s. a 
 
 ' R. V. Eldershaw, 3 C. & P. 396, per Vaughan, B. ; R. v. EMlips, 8 C. & P. 
 736, per Patteson, J. 
 
 « 38 & 39 v., c. 94, § 3 ; 24 & 25 V., c. 100, § 52. See E. v. Beale, 10 Cox, 
 157 ; 1 Law Rep., C. 0. 10, S. C. Between the ages of twelve and thirteen the 
 consent of the girl only reduces the man's crime from felony to misdemeanour, 
 38 & 39 v., c. 94, § 4. 
 
 ^ See 18 & 19 V., c. 43, and 23 & 24 V., c. 83, Ir., which Acts enable male 
 infants, who are at least twenty years old, and female iufants, who are at least 
 seventeen years old, to make, with the approbation of the Chancery Division, 
 binding settlements of their real and personal estate on marriage. Infants may 
 also be members of friendly societies, 38 & 39 V., c. 60, § 15, subs. 8. 
 
 8 See Martin v. Gale, L. R. 4 Ch. D. 428, where held by Jessel, M. R., that 
 
122 PKESUMPTION CHILD-BEAEING. [PAET I. 
 
 or bind himself by any contract,^ unless it be for necessaries ; ^ 
 neither since the first of January, 1838, has he had any power to 
 make a will, whether it purports to dispose of real or of personal 
 estate ; * though, before that date, boys of fourteen years, and girls 
 of twelve, might have disposed of personalty by will, provided they 
 were proved to have been of sufficient discretion.* 
 
 § 105. With respect to the period of life, at which the possibility § 9iA 
 of having issue, without miraculous agency,' becomes in women 
 extinct, no rigid presumption has been fixed by the law ; but 
 courts of equity, in directing the distribution of trust funds, have 
 been in the habit of assuming that females, after arriving at the 
 age of fifty-three, are in general past child-bearing.^ 
 
 a deed by an infant charging Ms reversionary interest to secure the repayment 
 of money advanced to Mm for necessaries, was voidable and could not be 
 enforced. 
 
 ' The Act of 37 & 38 V., c. 62, wMch was passed on 7th August, 1874, 
 enacts, in § 1, that "all contracts, whether by specialty or by simple contract, 
 henceforth entered into by infants for the repayment of money lent or to be 
 lent, or for goods supplied or to be supplied, other than contracts for neces- 
 saries, and all accounts stated with infants, shall be absolutely void ; Provided 
 that tMs enactment shall not invalidate any contract into wMoh an infant may, 
 by any existing or future statute, or by the rules of common law or equity, 
 enter, except such as now by law are voidable." As to how fer an infant can 
 act as a trustee, or exercise a power, see Kiag v. Bellord, 1 Hem. & M. 343, and 
 authorities there cited ; also In re Ajmit's Trusts, I. E., 5 Eq. 352. 
 
 ' 1 Bl. Com. 465, 466 ; Co. Lit. 78 b. As to what are necessaries, see ante, 
 § 42. As to how far infant shareholders are liable to actions for calls, see 
 Newry & Ennisk. Ey. Co. v. Combe, 5 EaU. Cas. 633 ; 3 Ex. E. 565, S. C. ; 
 Leeds & Thirsk Ey. Co. v. Feamley, 5 Eail. Cas. 644 ; 4 Ex. E. 26, S. C. ; 
 Cork & Bandon Ey. Co. v. Cazenove, 10 Q. B. 935 ; N. West. Ey. Co. v. 
 McMichael, 5 Ex. E. 114 ; Birkenhead, Lane. & Chesh. June. Ey. Co. v. Pilcher, 
 id. 121. An infant lessee, though not liable on the contract of tenancy, is an- 
 swerable for the rent during Ms occupation of the premises, Blake v. Concannon, 
 I. E., 4 C. L. 323. 
 
 3 7 W. 4 & 1 v., c. 26, §§ 7, 34. « 1 WiU. on Ex. 14^16. 
 
 ^ See Gen. ch. xvii., w. 15 — 19 ; ch. xvui., w. 9 — 15, and ch. xxi., w. 
 1—7. 
 
 * Haynes v. Haynes, 35 L. J., Ch. 303, per Kindersley, "V.-C, and cases there 
 cited iu the note. See, also, re "Widdow's Trusts, 11 Law Eep., Eq. 408, per 
 MaUns, V.-C. ; 40 L. J., Ch. 380, S. C. ; and re MiLlner's Estate, 14 Law Eep., 
 Eq. 245 ; 42 L. J., Ch. 44, S. C. In this last case a woman was presumed to be 
 barren at the age of forty-nine years and nine months, as she had been married 
 for twenty-six years, and had never had a child. 
 
CHAP. V.J LEGITIMACY — SPOLIATION OF PAPERS. 123 
 
 § 106. Again, the law in certain cases recognises a conclusive § 92 
 presumption in favour of legitimacy.^ Thus, where the husband 
 and wife have cohabited together, and no impotency is proved, the 
 issue is conclusively presumed to be legitimate, though the wife 
 is shown to have been, at the same time, guilty of infidelity ; ^ and 
 even where the parents are living separate, a strong presumption 
 of legitimacy still arises, which can only be rebutted, either by 
 proving a divorce a mensa et thoro, or, since the 11th of January, 
 1858, a judicial separation, or by cogent and almost irresistible 
 proof of non-access in a sexual sense.^ The fact that a woman is 
 living in notorious adultery is not, in itself, sufficient to repel this 
 presumption.* But where the parents have been either divorced 
 a mensa et thoro, or judicially separated, their children born during 
 the separation are prima facie illegitimate.^ 
 
 § 107.® Conclusive presumptions are not unknown to the law q/ § 93 
 nations. Thus, if a neutral vessel be found carrying despatches of 
 the enemy between different parts of the enemy's dominions, their 
 effect is presumed to be hostile,'' at least if they have been fraudu- 
 lently concealed. The spoliation of papers by the captured party 
 has been regarded, in all the States of Continental Europe, as 
 conclusive proof of guilt ; but in England and America such an 
 
 ' See ante, § 16. 
 
 2 Cope V. Cope, 1 M. & EoId. 269, 276 ; 5 C. & P. 604, S. C. ; Morris v, 
 Davies, 3 C & P. 215, 427; 5 01. & Pm. 163, S. C. ; WrigM v. Holdgate, 3 C. & 
 Kir. 158 ; Legge v. Edmonds, 25 L. J., Ch. 125 ; Banbury Peer., in Appendix, 
 n. E. to Le Marchant's Gardner's Peer., Selw. N. P. 748 — 750, and 1 Sim. & 
 St. 153, S. C. ; R. V. Luffe, 8 East, 193. Aa to the Mahomedan Law on tMs 
 subject, see Ashiufood Dowlah Akmed v. Hyder Hossein Khan, 11 Moo. Ind. 
 App. C. 94. 
 
 3 Id. ; Saye and Sele Peer., 1 H. of L. Cas. 507 ; Hargrave v. Hargrave, 9 
 Beav. 552 ; Plowes v. Bossej, 2 Drew. «& Sm. 145 ; 31 L. J., Ch. 681, S. C, per 
 Kindersley, V.-C. ; Atchley v. Sprigg, 33 L. J., Ch. 345, per id. 
 
 ■• E. V. Mansfield, 1 Q. B. 444, 450, 451 ; 1 G. & D. 7, S. C. In this case 
 Ld. Denman questions the authority of Cope v. Cope, as reported in 5 C. & 
 P. 604. 
 
 ' St. George v. St. Margaret, 1 Salk. 123. 
 
 « Gr. Ev. § 31, in part. 
 
 ' The Atalanta, 6 Rob. Adm. 440, 454. 
 
124 SPOLIATION OP PAPEES EUNNING BLOCKADE. [PAET I. 
 
 act is open to explanation, unless the cause otherwise labours 
 under grave suspicion, or the surrounding circumstances establish 
 a case of bad faith or of gross prevarication.-^ StUl, though our 
 law, in its lenity, does not found on the mere spoliation of papers 
 an absolute presumption of guilt, it only stops short of that result ; 
 for a case that escapes with such a brand upon it, is saved, as it 
 were, from the fire.^ Again, the maritime law recognises a pre- 
 sumption all but conclusive against any vessel, which has been 
 captured while entering a blockaded port ; and the only mode by 
 which the owner can protect the ship from being condemned as 
 lawful prize, is by establishing a justification on the ground of 
 imperative necessity.^ When a ship, too, is condemned for breach 
 of blockade, the cargo almost inevitably follows the same fate ; 
 for the law conclusively presumes that the owners of the cargo 
 were privy to the intention of violating the blockade, unless they 
 can prove that, at the time when the shipment was made, they 
 could not have known that the blockade had been imposed.* 
 
 § 108.^ In these cases of conclusive presumption, the rule of law § 94 
 merely attaches itself to the circumstances when proved ; it is not 
 deduced from them. It is not a rule of inference from testimony, 
 but a rule of protection, as expedient, and for the general good. 
 It does not, for example, assume that all landlords have good 
 titles ; but that it will be a public inconvenience to suffer tenants 
 to dispute them. Neither does it assume that all averments and 
 recitals in deeds and records are true ; but that it will be mischie- 
 vous if parties are permitted to deny them. It does not assume 
 that all simple contract debts, of six years' standing, are paid, nor 
 that every man quietly occupying land twenty years as his own, 
 has a valid title by grant ; but it deems it expedient that claims 
 opposed by such evidence as the lapse of those periods affords, 
 should not be countenanced ; and it considers that society is more 
 
 ' The Pizarro, 2 Wheat. 227, 241, 242, n. e ; The Hunter, 1 Dods. Adm. 480. 
 See post, § 116. 
 
 2 The Hunter, 1 Dods. Adm. 486, 487, per Sir W. Scott. 
 
 3 Baltazzi v. Eyder, 12 Moo., P. C. B. 168. 
 ^ Id. 
 
 * Gr. Ev. § 32, almost verbatim. 
 
CHAP, v.] DISPUTABLE PEESUMPTIONS. 125 
 
 benefited by a refusal to entertain such claims, than by suffering 
 them to be made good by proof. In fine, it does not assume the 
 impossibility of things which are possible ; on the contrary, it is 
 founded, not only on the possibility of their existence, but on their 
 occasional occurrence; and it is against the mischiefs of their 
 occurrence that it interposes its protecting prohibition.^ 
 
 § 109.^ The second class of presumptions of law, answering to § 95 
 the prcesum/ptiones jv/ris of the Roman law, which may always be 
 OTercome by opposing proof,^ consists of those termed dispuiable 
 presumptions. These, as well as the former, are the result of the 
 general experience of a connexion between certain facts or things, 
 the one being usually found to be the companion, or the effect, of 
 the other. The connexion, however, in this class is not so inti- 
 mate, or so uniform, as to be conclusively presumed to exist in 
 every case ; yet it is so general, that the law itself, without the aid 
 of a jury, infers the one fact from the proved existence of the other, 
 in the absence of all opposing evidence. In this mode the law, — 
 even in the absence of any corresponding allegation in the plead- 
 ing,* — defines the nature and amount of the evidence which is 
 suf&cient to establish a prima facie case, and to throw the burthen 
 of proof on the other party ; and if no opposing evidence is 
 offered, the jury are bound to find in favour of the presumption. 
 A contrary verdict might be set aside as being against evidence. 
 
 § 110.^ The rules in this class of presumptions, as in the former, § 96 
 have been adopted by common consent, from motives of public 
 policy, and for the promotion of the general good ; yet not, as in 
 the former class, forbidding all further evidence, but only dis- 
 pensing with it till some proof is given on the other side to rebut 
 the presumption raised. Thus, as men do not generally violate 
 the penal code, the law presumes every man innocent; but some 
 
 1 See 6 Law Mag. 348, 355, 356. 
 
 2 Gr. Ev. § 33, in great part. 
 
 3 Hein. ad Pand. P. iv. § 124. 
 
 * Rules of Sup. Ct. Ord. xix., r. 28, cited post, § 368 
 
 5 Gr. Ev. § 34, almost verbatim. 
 
126 PRESUMPTIONS OF LAW AND OF PACT. [PAET I. 
 
 men do transgress it ; and therefore evidence is received to repel 
 this presumption. 
 
 § 111. Such being the nature of disputable presumptions of § 97 
 law, it is obvious that, theoretically, they differ from mere pre- 
 sumptions of fact in three important particulars. In the first 
 place, the judge is bound to explain to the jury whatever legal 
 presumptions arise from the facts proved ; ^ next, the jury are 
 bound to give full weight to the presumptions so explained ; and 
 lastly, the court alone, without the intervention of the jury, may 
 draw the proper legal inferences, whenever the requisite facts are 
 developed in the pleadings.^ In. practice, however, the distinction 
 between -the two species of presumptions is by no means well 
 defined, and the line of demarcation, even when visible at all, is 
 often overlooked.' A presumption which is regarded by some 
 judges as one of law, is treated by others as one of fact ; nay, the 
 same judges place the same presumption at different times in 
 different classes, as if for the purpose of illustrating " the bless- 
 ings," which one of their body has declared that " we enjoy, in 
 rules capable of flexible interpretation." * The following remarks, 
 which principally apply to disputable presumptions of law, will be 
 found occasionally to extend, from motives of convenience, to 
 cogent presumptions of fact. 
 
 § 112. One of the most important legal presumptions is that of § 97a 
 innocence. This presumption, which in legal phraseology, " gives 
 the benefit of a doubt to the accused," is so cogent, that it can- 
 not be repelled by any evidence short of what is sufiicient to 
 establish the fact of criminality with moral certainty.^ In mere 
 civil disputes, when no violation of the law is in question, and 
 no legal presumption operates ia favour of either party, the pre- 
 
 ' Ante, § 25. 
 
 " Best, Ev. 404, 405. 
 
 =" Beat, Ev. 424. 
 
 * Per Talfoiud, J. See Letters of the Judges to the Chancellor on the Crim. 
 Law Bills of 1853, p. 37. 
 
 ' St. Ev. 817, 865, 4th ed. ; 1 Gr. Ev. § 13 a ; E. u White, 4 Eost. & Fin 
 383, per Martin, B. 
 
CHAP, v.] PRESUMPTION OF INNOCENCE. 127 
 
 ponderance of probability, due regard being had to the burthen 
 of proof, may constitute sufficient ground for a verdict;^ but to 
 affix on any person the stigma of crime requires a higher 
 degree of assurance ; and juries will not be justified in taking 
 such a step, except on evidence which excludes from their minds 
 all reasonable doubt.^ It has sometimes been asserted with 
 more or less precision, that the presumption in question is con- 
 fined to the criminal courts, being there specially adopted in 
 favour of life and liberty, for the protection of persons who can- 
 not be heard in their own defence, and as a safeguard against 
 error in convictions which are not open to revision.^ But this 
 would seem to be a mistake. The arguments just cited are ad- 
 mirable reasons for urging juries to exercise more than ordinary 
 caution in the investigation of grave offences, but the presumption 
 itself appears to rest on a broader basis. The right which every 
 man has to his character, the value of that character to himself 
 and his family, and the evil consequences that would result to 
 society if charges of guilt were lightly entertained, or readily 
 established in courts of justice : these are the real considerations 
 which have led to the adoption of the rule that all imputations 
 of crime must be strictly proved. The rule, then, is recognised 
 alike by all tribunals, whether civil or criminal, and is equally 
 effective in all proceedings, whether the question of guilt be 
 directly or incidentally raised.* For example, if an action be 
 brought against an insurance company to recover a loss by fire, 
 and the defendants plead that the plaintifi' wilfully burnt down 
 the premises, the jury, before they find a verdict against the 
 plaintiff, must be satisfied that the crime imputed to him was 
 proved by as clear evidence as would justify a conviction for arson. ^ 
 So, the offence of forgery or bigamy must be estabhshed by the 
 same strict evidence, whether the question arises in a penal court 
 
 1 St. Ev. 818, 4tli ed. ; 1 Gr. Ev. § 13 a ; Best, Ev. 120 ; Cooper v. Slade, 6 
 H. of L. Cas. 772, per WiUes, J. 
 
 2 St. Ev. 817, 865, 4tli ed. ; Best, Ev. 120. 
 
 3 Magee v. Mark, 11 Ir. Law R., N. S. 449, 463, per Pigot, C. B. ; Best, Ev. 
 120 ; 1 Gr. Ev. § 13 a. 
 
 " Best, Ev. 447. 
 
 ' Thurtell v. Beaumont, 1 Bing. 339 ; 8 Moore, 612, S. C. 
 
j28 PEESTJMPTION OF INNOCENCE. [PART I. 
 
 on a prosecution for any such crime, or in a civil court on a plea 
 of justification to a libel.^ 
 
 § 113.^ So strong is the presumption of innocence, that even § gg 
 where guilt can be established only by proving a negative, that 
 negative must, in most cases to which no special statute is 
 applicable,^ be proved, though the general rule of law devolves 
 the burthen of proof on the party holding the affirmative. Thus, 
 where the plaintiff complained that the defendant, who had char- 
 tered his ship, had put on board an article highly inflammable and 
 dangerous, without giving notice of its nature to the master in 
 charge, whereby the vessel was burnt, he was held bound to prove 
 this negative averment.* 
 
 § 114.^ Questions of nicety occasionally arise where the pre- § 99 
 sumption of innocence is met by some counter presumption.'' 
 Thus, where a woman, twelve months after her husband (a soldier 
 on foreign service) was last heard of, married a second husband, by 
 whom she had children, it was held that the Court of Quarter Ses- 
 sions, upon a question respecting the settlement of these children, was 
 justified in presuming that the first husband was dead at the time 
 of the second marriage, though, had it not been for the presumption 
 of innocence, that of the continuance of life would have prevailed.''' 
 So, on a trial for bigamy, where a woman had married again only 
 four years after she had separated from her first husband, the 
 
 1 Chalmers v. ShackeH, 6 C. & P. 475, per Tindal, C. J. ; Willmett v. 
 Harmer, 8 C. & P. 695, per Ld. Deiunan. See, also, Neeley v. Lock, 8 0. 
 & P. 532, per Tindal, C. J. ; Magee v. Mark, 11 Ir. Law E., N. S. 449, per 
 Fitzgerald, B. 
 
 2 Gr. Ev. § 35, in part. 
 
 3 See post, § 372. 
 
 " Willlaias v. E. Ind. Co., 3 East, 193 ; B. N. P. 298. So of allegations that 
 a party had not taken the Sacrament, E. v. Hawldns, 10 East, 211 ; affd. in 
 Dom. Proc. 2 Dow, 124 ; or had not complied -vrith the Act of uniformity, &c., 
 Powell V. Milbum, 3 Wils. 355, 366 ; or that goods were not legally imported, 
 Sissons V. Dixon, 5 B. & C. 758 ; or that a theatre was not duly licensed, Eod- 
 well V. Eedge, 1 C. & P. 220. See post, § 371. 
 
 s Gr. Ev. § 35, in part. 
 
 * See Middleton v. Earned, 4 Ex. E. 241 ; E. v. Bjornsen, 1 L. ,& Cave, 545 ; 
 10 Cox, 74 ; 34 L. J., M. C. 180, S. C. 
 
 7 E. V. Twyning, 2 B. & A. 386. 
 
CHAP, v.] PEESUMPTION OF GUILT. 129 
 
 court held that the law could not presume the continuance of the 
 first husband's life, but that it was a question of fact for the jury 
 whether he was alive or dead at the date of the second marriage.^ 
 But, in another case, where the point in issue was the derivative 
 settlement of a man's second wife, and a letter was proved to have 
 been written by the first wife from Van Diemen's Land, bearing 
 date only twenty-five days prior to the second marriage, the court 
 confirmed the order of the Sessions, which rested on the presumption 
 that the husband had been guilty of bigamy.^ So, where a cabman 
 was indicted for manslaughter by driving his cab over a woman, the 
 fact that the woman had been killed by the accident was in itself 
 regarded by the court as prima facie evidence of negligence, suffi- 
 cient to rebut the presumption of innocence, and to shift on to the 
 driver the burthen of proving that he had exercised due care in the 
 management of his horse.^ 
 
 § 115. An exception to this rule respecting the presumption of § 100 
 innocence, is admitted in some cases of agency ; the principle of 
 law being, both in criminal and civil cases, that a person is liable 
 for what is done under his presumed authority.* Thus, on an 
 indictment against a contract baker for selhng unwholesome 
 bread, where it appeared that the defendant allowed his foreman 
 to use alum, though not in such quantities as to render the bread 
 unwholesome, Lord EUenborough held that he might legally be 
 convicted, on proof that the servant had introduced alum into 
 the bread to a deleterious extent.^ So, for the purposes of the 
 Pawnbrokers' Act, 1872, " anything done or omitted by the servant, 
 apprentice, or agent of a pawnbroker, in the course of or in relation 
 to the business," shall be deemed to be done or omitted by the 
 
 1 R. V. Lumley, 1 Law Rep., C. C. 196; 38 L. J., M. C. 86; 11 Cox, 274, 
 S. C. See further, R. ». Jones, 11 Cox, 358 ; and see, as to the presumption of 
 life, §§ 198—203, post. 
 
 2 R. 1!. Harborne, 2 A. & E. 540 ; R. v. Mansfield, 1 Q. B. 449. See, also, 
 Lapsley v. Grierson, 1 H. of L. Cas. 498 ; and the Breadalhane case, 1 Law Rep., 
 H. L. So. 182, cited post, § 172. ' R. v. Cavendish, I. R., 8 C. L. 178. 
 
 * See post, §§ 905, 906. See, also. Cooper v. Slade. 6 H. of L. Cas. 746, 793, 
 794, pA Ld. Wensleydale. 
 
 5 R. V. Dixon, 4 Camp. 12 ; 3 M. & S. 11, S. C. See Att.-Gen. v. Riddle, 2 
 C. & J. 493 ; 2 Tyr. 523, S. C. ; and Searle v. Reynolds, 7 B. & S. 704. 
 
130 SUPPRESSING OR DESTROYING EVIDENCE. [PART I. 
 
 pawnbroker.! g^^ the directors of a gas company were held 
 criminally answerable, on an indictment for a nuisance, for an act 
 done by their superintendent and engineer, under a general authority 
 to manage the works, though they were personally ignorant of the 
 particular plan adopted, and though such plan was a departure 
 from the original and understood method, which the directors had 
 no reason to suppose was discontinued.^ In like manner,^ where 
 a libel is sold in a bookseller's shop by his servant in the ordinary 
 course of his employment, this is evidence of a guilty publication 
 by the master ; though, in general, an authority to commit a 
 breach of the law is not to be presumed. This exception is 
 founded upon public policy, lest irresponsible persons should be 
 put forward, and the principal and real offender should escape. 
 But such evidence is not conclusive against the master, who may 
 still prove, under the plea of not guilty, that the publication was 
 in fact made " without his authority, consent, or knowledge," and 
 that there was "no want of care or caution on his part."* The 
 same law is applied to the publishers of newspapers,^ and to the 
 owners of alkali works.® 
 
 § 116.'^ The presumption of innocence may be overthrown, and § loi 
 a presumption of guilt be raised, by the misconduct of the party in 
 suppressing or destroying evidence, which he ought to produce, or 
 
 1 35 & 36 v., c. 93, § 8. 
 
 ^ R. V. Medley, 6 C. & P. 292. Ld. Denman, in summing up, observed : " It 
 is said that the directors were ignorant of what had been done. In my judg- 
 ment that makes no difference ; provided you think that they gave authority 
 to the superintendent to conduct the works, they -will be answerable. It seems 
 to be both common sense and law, that if persons for their own advantage 
 employ servants to conduct works, they must be answerable for what is done 
 by those servants," 299. See E. v. Stephens, 1 Law Eep., Q. B. 702 ; 35 L. J., 
 Q. B. 251 ; 10 Cox, 340 ; 7 B. & S. 710, S. C. ; MuUins v. CoUins, 9 Law Eep., 
 Q. B. 292 ; and Betts v. De Vitre, 3 Law Eep., Ch. Ap. 442, per Lord Chelms- 
 ford, Ch. But see, also, Dickinson v. Fletcher, 43 L. J., M. C. 25 ; 9 Law Eep., 
 C. P. 1, S. C. 3 Gr. Ev. § 36, in part. 
 
 " 6 & 7 v., o. 96, § 7. As to the law before the stat., see 1 Euss. C. & M. 
 251 ; E. V. Gutch, M. & M. 433 ; Harding v. Greening, 8 Taimt. 42 ; E. v. 
 Almon, 5 Burr. 2686. 
 
 5 1 Euss. C. & M. 251 ; E. v. Walter, 3 Esp. 21 ; 6 & 7 V., c. 96, § 7; South- 
 wick V. Stevens, 10 Johns. 443. 
 
 6 26 & 27 v., c. 124, § 5. 7 Gr. Ev. § 37, in great part. 
 
CHAP, v.] PEESUMPTION OF GUILT. 131 
 
 to which the other party is entitled.^ Thus, the spoliation of 
 papers, material to show the neutral character of a vessel, fur- 
 nishes a strong presumption, in odium spoliatoris, against the 
 ship's neutrality.^ So, if any person on board a vessel, which is 
 being chased by an officer of the preventive service, shall throw 
 overboard, stave, or destroy any part of the lading, the vessel shall 
 be forfeited, because the conduct of such person raises an almost 
 irresistible presumption that the freight so made away with was 
 legally liable to seizure.' So, the concealment on board a vessel 
 of any goods, which are liable to duty, justifies the inference that 
 the owner intended to defraud the customs, and the goods will 
 consequently be forfeited.* A similar presumption is raised against 
 a party, who, having obtained possession of papers from a witness, 
 after the service of a subpoena duces tecum upon the latter for 
 their production, withholds them at the trial.' The general rule 
 is omnia prcesximuntur contra spoliatorem!^ His conduct is attri- 
 buted to his supposed knowledge that the truth would have ope- 
 rated against him. Thus, also, where the finder of a lost jewel 
 would not produce it, the jury, under the direction of the judge, 
 presumed against him, that it was of the highest value of its kind.'' 
 But if the defendant has been guilty of no fraud or improper 
 conduct, and the only evidence against him is the delivery to 
 
 1 A remaikable instance of suoli' presumption of guilt was formerly fur- 
 nished by the Act of 21 J. 1, c. 27 ; according to which statute, if the mother 
 of an illegitimate child endeavoured privately, either by drowning, or secret 
 burying, or by any other way, to conceal its death, she was presumed to have 
 murdered it, unless she could prove by one witness at the least that the child 
 was born dead. This Act was probably copied from a similar edict of H. 2 of 
 France, cited by Domat. But this unreasonable and barbarous rule is now 
 rescinded both in England and America. See, as to the present English law, 
 24 & 25 v., c. 100, § 60. 
 
 2 The Hunter, 1 Dods. Adm. 480 ; The Pizarro, 2 Wheat. 227 ; 1 Kent, Com. 
 157 ; ante, § 107. ' See 39 & 40 V., c. 36, § 180. 
 
 « See 39 & 40 V., c. 36, § 177. * Leeds v. Cook, 4 Esp. 256. 
 
 6 2 Poth. Obi. 292 ; Dalston v. Coatsworth, 1 P. "Wms. 731 ; Cowper v. Ld. 
 Cowper, 2 P. Wms. 720, 748 — 752 ; E. v. Arundel, Hob. 109, explained in 2 
 P. Wms. 748, 749 ; D. of Newcastle v. Kinderley, 8 Ves. 363, 375 ; Gray v. 
 Haig, 20 Beav. 219 ; Annesley v. E. of Anglesea, 17 How. St. Tr. 1430. See, 
 also 'sir S. Eomilly's argument in Ld. Melville's case, 29 How. St. Tr. 1194, 
 1195 ; Anon., 1 Ld. Kay. 731. In Baker v. Ray, 2 Russ. 73, the Ld. Ch. thought 
 that this rule had in some cases been pressed a Uttle too far. 
 
 ^ Armory v. Delamirie, 1 Str.^ 505 ; 1 Smith, L. C. 301, S. C. 
 
 K 2 
 
132 FABEICATION AND NON-PRODUCTION OF EVIDENCE. [PAET I. 
 
 him of the plaintiff's goods, of unknown quality, the presumption 
 is that they were goods of the cheapest quality.^ 
 
 § 117.^ The mere fabrication of evidence does not furnish of § ^^^ 
 itself any presumption of law against the innocence of the party, 
 but is a matter to be dealt with by the jury. Innocent persons, 
 under the influence of terror from the danger of their situation, have 
 been sometimes led to the simulation of exculpatory facts ; of which 
 several instances are stated in the books.^ Again, the exercise by a 
 client of his undoubted right to prevent his solicitor from disclosing 
 confidential communications, can form no just ground for adverse 
 presumption against him.* Neither has the mere non-production of 
 deeds or papers, upon notice, any other legal effect in general, than 
 to admit the other party to prove their contents by parol,^ and, as 
 against the party refusing to produce them, to raise a prima facie 
 presumption that they have been properly stamped.^ It cannot, how- 
 ever, be denied, but that such conduct, in the absence of all excuse, 
 is calculated to produce in the minds of the jury a very prejudicial 
 effect against any person having recourse to it ; '' and if such person 
 be charged with fraud or other misconduct, and the production of 
 his papers would establish his guilt or innocence, the jury will be 
 amply justified in presuming him guilty from the unexplained fact 
 of their non-production.^ On the same principle, jurors will do well 
 to regard with suspicion the conduct of any party, who, having it in 
 his power to produce cogent evidence in support of his case, is con- 
 tent to offer testimony of a weaker and less satisfactory character.' 
 
 § 118.^" Though the general presumption of law is, as we have ^ 103 
 seen, in favour of innocence, yet, as men seldom do unlawful acts 
 
 1 Clunnes v. Pezzey, 1 Camp. 8. ^ Gr. Ev. § 37, as to first six Knes. 
 
 3 See 3 Inst. 232 ; "Wills, Cir. Ev. 154. 
 
 ■• Wentworth v. Lloyd, 33 L. J., Ch. 688, per Ld. Clielmsford, in Dom. Proo. ; 
 10 H. of L. Cas. 589, S. C. * Cooper v. Gibbons, 3 Camp. 363. 
 
 ' Crisp V. Anderson, 1 Stark. E. 35. See § 148, post. 
 
 ' See Eoe v. Harvey, 4 Burr. 2484, per Ld. Mansfield ; Bate v. Kinsey, 1 
 C. M. & R. 41, per Ld. Lyndhurst ; Sutton v. Devonport, 27 L. J., C. P. 54 ; 
 Edmonds v. Foster, 45 L. J., C. P. 41. 
 
 » Clifton V. U. S., 4 Howard, S. Ct. R. 242. 
 
 'J See N. York Civ. Code, § 1852, art. 6 & 7. 
 
 '" Or. Ev. § 31, as to first eight lines. 
 
CHAP. V.J UNLAWFUL INTENT WHEN PEESUMED. 133 
 
 with innocent intentions, tlie law presumes every act, in itself un- 
 lawful, to have been wrongfully intended, till the contrary appears.^ 
 Thus, on a charge of murder, malice is presumed from the fact of 
 killing, unaccompanied by circumstances of extenuation ; and the 
 burthen of disproving the malice is thrown upon the accused.^ So, 
 if an unauthorised party, with the view of raising money, has put 
 the name of another person to a bill, a felonious intent will be pre- 
 sumed, unless the accused had reasonable grounds for believing that 
 he was authorised to act as he did, and in fact acted on that belief.^ 
 The same presumption arises in civil actions, where the act com- 
 plained of is unlawful. Thus, in actions of slander, though it 
 should appear that the defendant was not actuated by ill-will against 
 the plaintiff, malice in law wUl be inferred from the fact of inten- 
 tional publication, unless the defendant can show that his language 
 was excusable as a privileged communication, in which case the 
 plaintiff must establish actual malice, and in order to do so, must, 
 either by extrinsic or by intrinsic evidence,* prove facts which are 
 inconsistent with bona fides.^ This distinction rests upon the 
 
 ' Ld. Mansfield has, in clear language, pointed out the distinction between 
 those cases, where a criminal intent must be proved, and those where it will be 
 presv/med ; — " Where an act, in itself indifferent, if done with a particular intent 
 becomes criminal, there the intent must be proved and found ; but where the 
 act is in itself unlawful, the proof of justification or excuse lies on the defendant ; 
 and in failure thereof, the law implies a criminal intent." R. v. Woodfall, 5 
 Burr. 2667. See also E. v. Harvey, 2 B. & C. 257 ; R. v. WaUace, 3 Ir. Law R., 
 N. S. 38 ; and E. v. Creevey, 1 M. & Sel. 273. 
 
 2 Fost., 0. L. 255. 
 
 =< R. 0. Beard, 8 C. & P. 143, 148, 149, per Coleridge, J. 
 
 ^ Cooke V. Wildes, 5 E. & B. 328. 
 
 5 Toogood V. Spyririg, 1 C. M. & R. 181, 193 ; 4 Tyr. 582, S. C. ; Whitfield 
 V. South East Rail. Co., 27 L. J., Q. B. 229 ; 1 E. B, & E. 115, S. 0. ; Coxhead 
 V. Richards, 2 Com. B. 569 ; Spill v. Maule, 4 Law Rep., Ex. 232 ; Wright v. 
 Woodgate, 2 C. M. & R. 573 ; Tyr. & Gr. 12, S. C. ; Taylor v. Hawkins, 16 
 Q. B. 308 ; Gilpin v. Fowler, 9 Ex. R. 615 ; Somerville v. Hawkins, 10 Com. 
 B. 583 ; Harris v. Thompson, 13 Com. B. 333 ; R. v. Wallace, 3 Ir. Law R., 
 N. S. 38 ; Bromage v. Prosser, 4 B. & C. 247 ; 6 D. & R. 296, S. C. In this, 
 last case, which was an action for words spoken of the plaintiffs in their busi- 
 ness as bankers, the law of implied or legal malice, as distinguished from 
 malice in fact, was clearly expounded by Bayley, J., in the following terms : — 
 " Malice, in the common acceptation, means ill-will against a person ; but in 
 its legal sense it means a wrongful act, done intentionally, without just cause 
 or excuse. If I give a perfect stranger a blow likely to produce death, I do it 
 of malice, because I do it intentionally, and without just cause or excuse. If 
 
134 UNLAWFUL INTENT WHEN NOT PRESUMED. [PART I. 
 
 ground that, when words are proTed to have been spoken on a 
 justifiable occasion, the law raises an antagonistic presumption, that 
 the speaker was actuated by proper motives.^ So, in other actions 
 on the case, as for a malicious arrest, a malicious prosecution, and 
 the like, the fact that the defendant has had recourse to legal pro- 
 ceedings raises a prima facie inference in his favour, which the 
 plaintiflf is bound to rebut by proving the absence of all reasonable 
 and probable cause, and the presence of an actual malicious 
 intent/ 
 
 § 119. Some presumptions with respect to the ownership of pro- § 104 
 perty may conveniently here be noticed. And first, as to the 
 boundaries of property.^ Where two counties or parishes are sepa- 
 
 I maim cattle, witliout knowing whose they are ; if I poison a fishery, without 
 knowing the owner, I do it of malice, because it is a wrongful act, and done 
 intentionally. * * If I traduce a man, whether I know him or not, and 
 whether I intend to do him an injury or not, I apprehend the law considers it 
 as done of malice, because it is wrongful and intentional. It equally works an 
 injury, whether I mean to produce an injury or not, and if I had no legal 
 excuse for the slander, why is he not to have a remedy against me for the 
 injury it produces ? And I apprehend the law recognises the distinction 
 between these two descriptions of malice, malice in fact, and malice in law, in 
 actions of slander. In an ordinary action for words, it is sufficient to charge 
 that the defendant spoke them falsely ; it is not necessary to state that they 
 were spoken maliciously. This is so laid down in Sty. 392, and was adjudged 
 upon error in Mercer v. Sparkes, Owen, 51 ; Noy, 35. The objection there 
 was, that the words were not charged to have been spoken maliciously, but the 
 court answered, that the words were themselves malicious and slanderous, and, 
 therefore, the judgment was affirmed. But in actions for such slander as is 
 primS facie excusable on account of the cause of speaking or writing it, as in 
 the case of servants' characters, confidential advice, or communications to 
 persons who ask it, or have a right to expect it, malice in fact must be proved 
 by the plaintiff, and in Edmondson v. Stevenson, B. N. P. 8, Ld. Mansfield 
 takes the distinction between these and ordinary actions of slander." In an 
 action for an alleged libel contained in an answer to inquiries respecting the 
 character of a servant, the jury may find express malice from the simple fact, 
 that the answer complained of was untrue to the defendant's knowledge ; 
 Fountain v. Boodle, 3 Q. B. 5. 
 
 '■ Note 6 to Hodgson v. Scarlett, 1 B. & A. 245, 246 ; approved of by Alder- 
 son, B., in Gibbs v. Pike, 9 M. & W. 358. 
 
 2 Mitchell V. Jenkins, 5 B. & Ad. 588 ; Porter v. Weston, 5 Bing. N. C. 715 ; 
 Johnstone v. Sutton, 1 T. R. 545. The jury may, biit are not bound, to infer 
 malice in fact from the want of probable cause. Id. 
 
 3 As to boundaries of counties, &c., in Ireland, see 35 & 36 V., c. 48, §§ 2, 3, 
 4, cited post, § 1771. 
 
CHAP. V.J PRESUMPTIONS RESPECTING BOUNDARIES. 135 
 
 rated by a non-tidal ^ river, the mid-stream is the presumptive 
 boundary between them.^ Again, the owner of a several fishery, 
 when the terms of the grant are unknown, is presumed to be the 
 owner of the soil.^ The law, too, presumes that the soil of un- 
 navigable rivers, usque ad medium filum aquae, together' with the 
 right of fishing, but not the right of abridging the width, or inter- 
 fering with the course, of the stream,* belongs to the owner of the 
 adjacent land ; ^ while, in navigable rivers and arms of the sea, the 
 soil prima facie is vested in the Crown, and the fishery prima facie 
 is public.® Similar presumptions are recognised in respect of land 
 lying on the sea- shore ; that which is covered by the ordinary high 
 water, — or to speak more accurately, by the medium high tide 
 between the spring and the neap,'' — is presumed prima facie to be 
 the property of the Crown, though by grant or prescription it may 
 belong to the lord of the manor, or to any other subject ; ^ but, on 
 the other hand, that part of the shore which is overflowed only at 
 spring tide, is presumed to be vested in the proprietor of the ad- 
 joining lands. ^ So, land between high and low water mark, though 
 forming part of the body of the adjoining county,^" is prima facie 
 
 ' Bridgwater Trust v. Bootle-cum-Linaore, 2 Law Eep., Q. B. 4 ; 36 L. J., 
 Q. B. 41 ; and 7 B. & S. 348, S. C. 
 
 ^ E. V. Landulph, 1 M. & Bob. 393, per Patteson, J. ; M'Cannon v. Sinclair, 
 2 E. & E. 53 ; E. v. Strand Board of Works, 4 B. & S. 526 ; 33 L. J., M. C. 
 33, S. C. 
 
 3 D. of Somerset v. Fogwell, 5 B. & C. 875 ; 1 D. & E. 747, S. 0. ; Holford 
 11. Bailey, 8 Q. B. 1000 ; 13 Q. B. 427, S. C. in error ; MarshaU v. Tlie UUes- 
 water St. Navig. Co., 32 L. J., Q. B. 139 ; 3 B. & S. 732, S. C. But see some 
 very able observations, contr&, made by Cockburn, G. J., in S. C, 32 L. J., 
 Q. B. 144, 145 ; and 3 B. & S. 747—749 ; also, Bloomfield v. Wbarton, I. E. 
 8 0. L. 68, cited in next note but one. 
 
 * Biokett V. Morris, 1 Law Eep., H. L. Sc. 47. 
 
 5 Carter v. Miircot, 4 Burr. 2163 ; Wisbart v. WyEie, 1 Macq. Sc. Cas. H. 
 of L. 389 ; Lord v. Commiss. for City of Sydney, 12 Moo. P. C. E. 473 ; 
 Crossley v. Ligbtowler, 3 Law Eep.,Eq. 279 ; 2 Law Eep., Ch. Ap. 478 ; and 
 36 L. J., Cb. 584, S. C. ; Dwyer v. Eicb, I. E. 6 C. L. 144. The law as to 
 riparian ownersbip in streams does not apply to tbe case of great inland lakes, 
 whether navigable or otherwise ; Bloomfield v. Wharton, I. E. 8 C. L. 68. 
 
 " Carter v. Murcot, 4 Burr. 2163 ; Malcomson v. O'Dea, 10 H. of L. Cas. 593. 
 
 7 Att.-Gen. v. Chambers, 23 L. J., Ch. 662 ; 4 De Gex, M. & G. 206, S. C. 
 
 8 Blundell v. Catterall, 5 B. & A. 293, 298, per Holroyd, J. ; and 304, per 
 Bayley, J. ; Lopez v. Andrew, 3 M. & E. 329 a ; Calmady v. Eowe, 6 Com. 
 B. 861, 878, 879. See post, §§ 130, 131. 
 
 " Lowe V. Govett, 3 B. & Ad. 863. i" Embleton v. Bro-sra, 3 E, & E. 234. 
 
136 PEESUMPTIONS BESPECTING BOUNDARIES. [PART I. 
 
 presumed to be extra-parochial ; ^ and this presumption applies to 
 an estuary or arm of the sea,^ and also to the shore of a tidal river, 
 as well as to the main sea-shore.^ Again, waste land on the sides, 
 and the soil to the middle, of a highway, are, in the absence of 
 evidence to the contrary, presumed to belong to the owner of the 
 adjoining inclosed land, whether he be a freeholder, leaseholder, or 
 copyholder.* This rule, being founded on a supposition that the 
 proprietor of the adjoining land, at some former period, gave up to 
 the public for passage all the land between his inclosure and the 
 middle of the road,^ is liable to be rebutted by showing that the 
 road was originally dedicated by some other party ; ^ and the pre- 
 sumption may also be repelled by proof that the lord of the manor, 
 or even that a stranger, has exercised acts of ownership, either over 
 the spot in dispute, or over other waste land in immediate con- 
 nexion with it.'' The presumption just referred to as prevailing in 
 the case of a public highway, will also be recognised in the case of 
 a private occupation road running between two properties ; and, in 
 the absence of all evidence of acts of ownership, the soil of the road 
 will be deemed to belong to the owners of the adjoining lands in 
 equal moieties ; that is, each owner will be presumed to be the pro- 
 prietor of the soil usque ad medium filum vise.^ The mere fact that 
 the owner of a field has a private right of way over a lane leading 
 only to that field, affords no presumption that the soil of the lane 
 
 1 R. V. Musson, 27 L. J., M. C. 100 ; 8 E. & B. 900, S. C. ; Waterloo 
 Bridge Co. v. Cull, 28 L. J., Q. B. 75, per Ld. Campbell. 
 
 ^ Ipswich. Dock Commiss. v. St. Peter, Ipswich, 7 B. & S. 310. 
 
 ' Bridgwater Trust v. Bootle-oum-Linacre, 2 Law Hep., Q. B. 4 ; 36 L. J., 
 Q. B. 41 ; and 7 B. & S. 348, S. C. 
 
 * Doe V. Pearsey, 7 B. & C. 304 ; 9 D. & R. 908, S. C. ; Steel v. Prickett, 
 2 Stark. R. 463, per Abbott, C. J. ; Cooke v. Green, 11 Price, 736 ; Sooones 
 ■v. Morrell, 1 Beav. 251 ; M. of Salisbury v. Gt. North. Rail. Co., 5 Com. B., 
 N. S. 174 ; Simpson v. Dendy, 8 Com. B., N. S. 433 ; Berridge v. Ward, 30 
 L. J., C. P. 218 ; 10 Com. B., N. S. 400, S. C. ; R. v. Strand Board of Works, 
 33 L. J., M. C. 33 ; 4 B. & S. 526, S. C. See Gery v. Redman, L. R. 1 Q. B. 
 D. 161 ; 45 L. J., Q. B. 267, S. C. 
 
 * Doe V. Pearsey, 7 B. & C. 306, per Bayley, J. 
 
 " Headlam v. Headley, Holt, N. P. R. 463, per Bayley, J. 
 
 ' Doe V. Kemp, 2 Bing. N. C. 102 ; 2 Scott, 9, S. C. ; Grose v. West, 7 
 Taunt. 39 ; Anon., Lofft, 358 ; Doe v. Kemp, 7 Bing. 332 ; 5 M. & P. 173, 
 S. C. ; Doe v. Hampson, 4 Com. B. 267 ; Beckett v. Corp. of Leeds, 7 Law Rep,, 
 Ch. Ap. 421. 
 
 *• Holmes v. Bellingham, 29 L. J., C. P. 132 ; 7 Com. B., N. S. 329, S. C. 
 
CHAP, v.] EIGHT OP OWNEES OP ADJOINING LANDS. 137 
 
 is vested in him.^ As to roads set out under the first general In- 
 closure Act, "the herbage and grass arising therefrom " are con- 
 clusively presumed to belong to the proprietors of the adjoiniag 
 lands ; ^ and as to those made under the later Act of William the 
 Fourth, the commissioners are directed to award "the grass and 
 herbage growing and renewing upon " them to such persons as in 
 their judgment are best entitled to the same.^ But both Acts are 
 silent respecting the ownership of the soil, and it seems that as to 
 that, no legal presumption can arise in favour of the proprietors of 
 the neighbouring allotments.* 
 
 § 120. Where fields belonging to different owners are separated § 105 
 by a hedge and ditch, the hedge prima facie belongs to the owner of 
 the field in which the ditch is not ; but if there are two ditches, one 
 on each side, the ownership of the hedge must depend upon evidence 
 of acts of ownership.^ The common user of a wall separating lands 
 or houses which belong to different proprietors, is prima facie 
 evidence that the wall, and the land on which it stands, belong to 
 them in equal moieties as tenants in common.^ But this presump- 
 tion may be rebutted by showing that the wall in fact stands on 
 land, parts of which were separately contributed by each proprietor.'' 
 Where a tree grows on the boundary of two fields, so that the roots 
 extend into the soil of each, the property in the tree is presumed 
 to belong to the owner of that land in which it was first sown or 
 planted.^ In the work of Mr. CaUis on Sewers,' a distinction is 
 drawn between a bank and a wall ; the former, being made of earth 
 
 ' Smith V. Howden, 2 New E. 30 ; 14 C. B., N. S. 398, S. C. 
 
 2 41 G. 3, c. 109, § 11. 3 6 & 7 W. 4, c. 115, § 29. 
 
 * E. V. Hatfield, 4 A. & E. 164, per Ld. Denman ; E. v. Edmonton, 1 M. 
 & Eot). 32, per Ld. Tenterden. 
 
 « Guy V. West, 2 Sel. N. P. 1296, per Bayley, J. In France, boundary 
 hedges and the trees in them are declared to he common property, "mitoyens," 
 except in certain cases ; Code Civ., Art. 670, 673. 
 
 « Cuhitt V. Porter, 8 B. C. 257 ; 2 M. & E. 267, S. C. ; Wiltshire v. Sidford, 
 1 M. & E. 404 ; 8 B. & C. 259 n., S. C. 
 
 ' Matts V. Hawkins, 5 Taunt. 20 ; Murly v. M'Dermott, 8 A. & E. 138 ; 
 3 N. & P. 256, S. C. 
 
 ' Holder v. Coates, M. & M. 112, per Littledale, J. ; Masters v. PolKe, 2 
 Eoll. E, 141 ; contra. Waterman v. Soper, 1 Ld. Eay. 737 ; Anon., 2 EoU. E. 
 255. 9 p. 74, 4t]i Ed. 
 
138 SURFACE OWNERS PROPRIETORS OP FLATS. [PART I. 
 
 taken from the adjacent soil, is presumed to belong to the party 
 whose land adjoins thereto; the latter, being built of materials 
 brought from a distance, is prima facie the property of the person 
 who is bound to repair it. This distinction has been recognised in 
 the Court of Common Pleas.^ 
 
 § 121. When the surface of land and the subjacent minerals are § 106 
 vested in different owners without any deeds ^ appearing to regulate 
 their respective rights, the law presumes that the owner of the 
 surface has a right to the sv,pport of the miuerals.^ So, when a 
 house is divided into different flats, the proprietor of the upper 
 story has a presumptive legal right, without any express grant, or 
 enjoyment for any given time, to the support of the lower story, and 
 the owner of the lower story is also entitled to the protection 
 afforded by the upper rooms as a roof or covering for his dweUiag.* 
 On a similar priuciple it has long been held that, when two adjoin- 
 ing closes belong respectively to different persons, the owner of the 
 
 1 D. of Newcastle v. Clark, 8 Taunt. 627, 628, per Park, J. 
 ' Where snch deeds exist, see Aspden v. Seddon, 44 L. J., Ch. 359, per Lds. 
 Js. ; 10 Law Rep., Ch. Ap. 394, S. C. 
 
 3 Humplmes v. Brogden, 12 Q. B. 739, 746 ; Smart v. Morton, 5 E. & B. 
 30 ; Hairis v. Ryding, 5 M. & W. 60 ; Roberts v. Haines, 25 L. J., Q. B. 
 353 ; 6 E. & B. 643, S. C. ; aff. in Ex. Ch., Haines v. Roberts, 7 E. & B. 625 ; 
 Rowbotham v. Wilson, 6 E.'& B. 593; 27 L. J., Q. B. 61, and 8 E. & B. 
 123, S. C. in Ex. Ch. ; 8 H. of L. Cas. 348, and 30 L. J., Q. B. 49, S. C, in 
 Dom. Proc. ; Caledonian Ry. Co. v. Sprot, 2 Maoq. So. Cas., H. of L. 449. 
 See Elliot v. The N.-East Ry. Co., 32 L. J., Ch. 402, per Dom. Proc. ; 10 H. of 
 L. Cas. 333, S. C. ; Brown v. Robins, 4 H. & N. 186 ; Fletcher v. Gt. W. Ry. 
 Co., 4 H. & N. 242 ; 29 L. J., Ex. 253, S. C. in Ex. Ch. ; Gt. W. Ry. Co. 
 ■0. Bennett, 36 L. J., Q. B. 133, per Dom. Proc. ; 2 Law Rep., H. L. 27, S. C. ; 
 Jeffries v. Williams, 5 Ex. R. 792 ; Rogers v. Taylor, 2 H. & N. 828 ; 27 L. J., 
 Ex. 173, S. C. ; Eadon-y. Jeffcock, 7 Law Rep., Ex. 379 ; 42 L. J., Ex. 36, S. C. ; 
 Hext V. Gill, 7 Law Rep., Ch. Ap. 699 ; Dugdale v. Robertson, 3 Kay & J. 695 ; 
 Bonomi i). Backhouse, 27 L. J,, Q. B. 378 ; 1 E. B. & E. 622, 654, S. C, in 
 which last case it was held, that this right was an ordinary right of property 
 incidental to all land, and was not a right founded on any presumption of a 
 grant or an easement. See S. C. in Dom. Proc, nom. Backhouse v. Bonomi, 
 9 H. of L. Cas. 503. Also, Wakefield v. D. of Buccleuch, 4 Law Rep., Eq. 
 613, per Malins, V.-C, in a very elaborate judgment ; 36 L. J., Ch. 763, 
 S. C. 
 
 4 Humphries v. Brogden, 12 Q. B. 747, 756, 757 ; Caledonian Ry. Co. v. 
 Sprot, 2 Macq. Sc. Cas., H. of L. 449. 
 
CHAP, v.] LATEKAL SUPPORT WASTE LANDS. 139 
 
 one has a limited right ^ to the lateral support of the other ; ^ and 
 although this doctrine does not extend to a case where, by the 
 erection of buildings, an additional weight has been put upon the 
 land,^ yet the law will presume the grant of an easement entitling 
 the grantor to have his house supported by the soil of his neigh- 
 bour's property, if the house has been built for more than twenty 
 years.* So, where a landowner has built two or more houses adjoin- 
 ing each other, so as to require mutual support, or mutual drainage, 
 , and has afterwards parted with his interest in the several houses to 
 different persons, the law will, in general,^ presume either a grant 
 or reservation, that will entitle each owner to have his house sup- 
 ported by,^ or drained through,'' the adjoining buildings. Where, 
 however, a dock and a wharf had belonged to the same owner, and 
 the bowsprits of vessels in the dock had for many years projected 
 over a part of the wharf, the court held, that, in a subsequent grant 
 of the wharf, the law would not imply a reservation in favour of the 
 vendor of the right for the bowsprits to project over the wharf as 
 before.^ 
 
 § 122. The law also presumes prima facie that the lord of a § io7 
 manor is entitled to all waste lands within the manor ; and there- 
 fore it is not essentially necessary that he should show acts of 
 
 1 See Smitli v. Thackeray, 1 Law Eep., C. P. 564 ; 1 H. & R. 615, S. C. 
 
 = 2 EoU. Abr. 564, Trespass, I., pi. 1, cited in 12 Q. B. 743. 
 
 3 MurcMe v. Black, 34 L. J., C. P. 337. 
 
 •* Wyatt V. Harrison, 3 B. & Ad. 871 ; Hide v. Tkomborougk, 2 C. & Kir. 
 250 ; Partridge v. Scott, 3 M. & W. 220, all of wMch cases are conunented on 
 in Hnmpkries v. Brogden, 12 Q. B. 748 — 750. See Hunt ■;;. Peake, 1 V. Jolins. 
 705 ; Jeffries v. WiUiams, 5 Ex. R. 792 ; Rogers v. Taylor, 2 H. & N. 828 ; 27 
 L. J., Ex. 173, S. C. 
 
 ° See Murohie v. Black, 34 L. J., C. P. 337. 
 
 ' Richards v. Rose, 9 Ex. R. 218. See Solomon v. Vintners' Co., 4 H. & N. 
 585, and Kempston ■;;. Butler, 12 Ir. Law R., N. S. 516. 
 
 ' Pyer v. Carter, 26 L. J., Ex. 258 ; 1 H. & N. 916, S. C. ; HaU v. Lund, 32 
 L. J., Ex. 113. The authority of Pyer v. Carter has been denied by Ld. West- 
 bury, Ch., in Suflaeld v. Brown, 3 New R. 343, 344 ; 33 L. J., Ch. 259, 260 ; 
 4 De Gex, J. & S. 185, S. C. See Pearson v. Spencer, 3 B. & S. 761 ; Polden v. 
 Bastard, 4 B. & S. 258; 35 L. J., Q. B. 92, S. C. in Ex. Ch. ; and 1 Law Rep., Q. B. 
 156, S. C. ; Watts v. Kelson, 40 L. J., Ch. 126 ; 6 Law Rep., Ch. Ap. 166, S. C. 
 
 ^Sufaeld V. Brown, 3 New R. 340 ; 33 L. J., Ch. 249 ; 4 De Gex., J. & S. 
 185, S. C, per Ld. Westbury, Ch., reversing a decision of Roniilly, M. R., 2 
 New R. 378. 
 
140 PEESUMPTION OF OWNEESHIP FROM POSSESSION. [PABT I. 
 
 ownership upon them.^ So, the lord, who, by virtue of his owner- 
 ship of the soil, is entitled to take gravel, naarl, loam, or subsoil in 
 the waste either for his private use or for sale, so long as he does 
 not infringe on the rights of the commoners, — will be presumed in 
 exercising this limited right, not to have exceeded his limited 
 powers, unless the tenants can adduce some evidence to the con- 
 trary.^ This rule is the more deserving of notice, because the pre- 
 sumption is against the lord in the case of approvement, apparently 
 on the ground that, as he has made a grant over the whole waste, 
 his right to inclose any portion of it must be conditional on his 
 establishing that sufficient waste is left for the tenants to enjoy their 
 rights of common.^ It is now clearly established, though the 
 point was formerly much doubted,* that when a tenant encroaches 
 upon the waste contiguous to his farm and incloses it, he is to be 
 presumed, in the absence of facts proving a contrary intention, to 
 have thus acted for the benefit of his landlord.^ This presumption 
 will be recognised even though the lands inclosed be the property 
 of a stranger ; * but it will doubtless be much strengthened, if the 
 landlord of the farm be also the lord of the waste.''' 
 
 § 123. As men generally own the property they possess, proof § 108 
 of possession is presumptive proof of ownership.^ This presumption 
 is recognised ia the Factors' Acts,® in the Irish, Scotch, and 
 
 1 Doe V. Williams, 7 C. & P. 332, per Coleridge, J. 
 
 2 HaU V. Byron, L. E., 4 Ch. D. 667, 680, per Hall, V.-C. ; 46 L. J., Ch. 297, 
 S. C. 
 
 3 Id. ; Arlett v. EUis, 7 B. & C. 346, 370, per Bayley, J. ; Lascelles v. Ld. 
 Onslow, 46 L. J., Q. B., 343, per Lush, J. 
 
 * Doe V. Mnlliner, .1 Esp. 460, per Ld. Kenyon ; Doe v. Davies, id. 461. 
 
 5 Doe V. Jones, 15 M. & W. 580 ; Andrews v. Hailes, 2 E. & B. 349 ; Kings- 
 mill V. MiUard, 11 Ex. R. 313 ; Ld. Lisbuine v. Davies, 1 Law Rep., C. P. 259; 
 1 H. & R. 172, S. C. ; 35 L. J., C. P. 193, S. C. ; Doe v. Massey, 17 Q. B. 373; 
 Doe V. Williams, 7 C. & P. 332 ; Doe v. Muirell, 8 C. & P. 134, per Ld. 
 Abinger ; Doe v. Eees, 6 C. & P. 610, per Parke, B. ; Doe v. Tidbury, 14 Com. 
 B. 304 ; Whitmore v. Hiunphries, 7 Law Rep., C. P. 1 ; 41 L. .J., C. P. 43, 
 S. C. 
 
 ^ Cases cited in last note. 
 
 ' Bryan v. Winwood, 1 Taunt. 208. 
 
 s Webb V. Pox, 7 T. R. 397, per L. Kenyon. 
 
 s 6 G. 4, 0. 94 ; 5 & 6 V., c. 39, § 1. See Heyman v. Flewker, 13 Com. B., 
 N. S. 519 ; Baines v. Swainson, 4 B. & S. 270; Fuentes v. Montis, 4 Law Rep., 
 
CHAP. V.J PBESUMPTION ARISING FROM POSSESSION. 141 
 
 English Acts relating to injuries done by dogs to slieop/ jn the 
 Pawnbrokers' Act, 1872, so far as relates to the holders of pawn- 
 tickets,^ and also in most of the statutes which authorise the com- 
 pulsory sale of lands for particular purposes ; as, for instance, 
 in the Lands' Clauses Consolidation Act.^ At common law, too, 
 it may be illustrated by a great variety of cases. Thus, in an 
 action on a policy of insurance effected on a ship and her cargo, the 
 plaintiff may rely on the mere fact of possession, without the aid of 
 any documentary proof or title deeds, unless such further proof be 
 rendered necessary by the opposite party adducing some contrary 
 evidence.* This rule applies both to real and personal property, 
 and, in the former case, raises a presumption of a seisin in fee.' 
 In actions of trespass to real property, the presumption arising from 
 the simple fact of possession amounts, as against a mere wrong- 
 doer, to conclusive evidence ; ^ and if an action be brought for an 
 injury done to the reversion of an estate, proof of the receipt of 
 rent '' by the plaintiff will, unless the sum annually received be so 
 small as to raise a presumption that it is a mere quit rent,^ be 
 sufficient evidence of his title to the reversion as against all the 
 
 C. P. 93, per Ex. Ch. ; 38 L. J., C. P. 95, S. C. ; Vickera v. Hertz, 2 Law Eep., 
 H. L. Sc. 113. 
 
 * 25 & 26 v., c. 59, § 2, Ir., enacts, that "the occupier of any house or pre- 
 mises where any dog was kept, or permitted to live or remain, at the time of 
 such injury complained of, shall he deemed to be the owner of such dog, unless 
 the contrary he proved." See, also, 28 & 29 V., c. 50, § 7, Ir. ; 26 & 27 V., c. 
 100, § 2, Sc. ; and 28 & 29 V., o. 60, § 2. 
 
 2 35 & 36 v., c. 93, § 25. 
 
 3 8 & 9 v., c. 18, § 79. 
 
 * Rohertson v. French, 4 East, 130, 137 ; Sutton v. Buck, 2 Taunt. 302. So, 
 proof that plaintiff has ordered and paid for stores for the ship, is prim^ facie 
 evidence of his ownership, so as to enable him to sustain an action on a policy 
 against the underwriter ; Thomas v. Foyle, 5 Esp. 88, per Ld. Ellenborough. 
 
 * Doe V. Coulthred, 7 A. & E. 239, per Ld. Denman ; Jayne v. Price, 5 
 Taunt. 326 ; Doe v. Penfold, 8 C. & P. 537, per Patteson, J. See Metters v. 
 Bro-\vn, 32 L. J., Ex. 138 ; 1 H. & C. 686, S. C. ; as to how this presumption 
 can be rebutted. 
 
 » Elliott V. Kemp, 7 M. & W. 312, per Parke, B. 
 
 '. See, also, 23 & 24 V., c. 154, § 24, Jr., which makes the receipt of rent, 
 under certain circumstances, for a certain period, primft facie evidence of a 
 landlord's derivative title. 
 
 ' Doe V. Johnson, Gow, R. 173, per Holroyd, J., recognised in Reynolds v. 
 Reynolds, 12 Ir. Eq. R. 172, 181. 
 
142 PRESUMPTION ARISING FROM POSSESSION. [PART I. 
 
 world, except the real owner and persons claiming under him.-' So, 
 also, in actions against wrong-doers for injuries to personal chattels, 
 proof of possession, when coupled with evidence that the plaintiff 
 has some special property in such chattels, has long heen held to 
 constitute a complete title. ^ Therefore, an undischarged bankrupt 
 may probably still, as under the old law,^ sue in trover a wrong- 
 doer who has taken goods out of his custody; for although the 
 trustee may take possession of his after-acquired property, yet if he 
 allows the bankrupt to treat such property as his own, no third 
 person can cover his own default by setting up a title, upon which 
 the trustee himself does not think fit to insist. So, possession of a 
 ship under a transfer from the rightful owner, which is void for 
 non-compliance with the register Acts, constitutes a sufficient title 
 in the plaintiff to support an action of trover against a stranger, for 
 converting a part of the ship which was wrecked.* So, even a 
 general bailment will suffice, without being made for any special 
 purpose, but only for the benefit of the rightful owner.^ In Ireland, 
 too, a mere naked possession will entitle a party to maintain trover 
 as against a wrong-doer," and the same doctrine has been acted 
 upon in the English Court of Queen's Bench.'' 
 
 § 124. Many cases also show, that an apparent stranger to a § 109 
 document may be so far connected with it by the fact of producing 
 it, as to make it ample prima facie evidence for a jury in support 
 of his claim.* Thus, the production by a plaintiff of an I U 
 signed by the defendant, though not addressed to any one by name, 
 is, in general,^ abundant evidence, not indeed of money lent, of 
 
 1 Daintry v. Brooklehurst, 3 Ex. E. 207. 
 
 2 Elliott V. Kemp, 7 M. & W. 312, per Parke, B. 
 
 3 Webb V. Fox, 7 T. R. 391 ; Drayton v. Dale, 2 B. & C. 293 ; 3 D & E 
 534, S. C. ; Fyson v. Chambers, 9 M. & W. 460. 
 
 ■' Sutton V. Buck, 2 Taunt. 302. 
 
 5 Per Chambre, J., id. 309. 
 
 « Eitzpatrick v. Dunphy, 1 Ir. Law Eep., N. S. 366, per Ex. 
 
 7 Jefflriea v. Gt. West. Rail. Co., 5 E. & B. 802. This case resolves a doubt 
 raised by Parke, B., in Fyson v. Chambers, 9 M. & W. 467. See, also Armor 
 V. Delamirie, 1 Str. 505 ; 1 Smith, L. C. 301, S. C. ; Sutton v. Buck 2 Taunt 
 309, per Lawrence, J. 
 
 ^ Fesenmayer v. Adoock, 16 M. & W. 449, per Pollock, C. B. 
 
 But It will not furnish evidence of an account stated, if the defendant 
 
 9 ,„ „ . .. . ..„ , . 
 
 ': can 
 
CHAP, v.] PRESUMPTION ARISING FROM POSSESSION. 143 
 
 ■which it furnishes no proof whatever/ but of an account stated 
 between the parties.^ So, if a letter be given in evidence with the 
 direction torn off, the jury will do well to presume, prima facie, 
 that it was addressed to the party who produces it.^ 
 
 § 125. In actions of ejectment, though it is an inflexible rule § 110 
 that the plaintiff must recover by the strength of his ovm legal 
 title, yet proof of a prior possession, however short, will be prima 
 facie evidence of title as agauist a wrong-doer.* Thus, where a 
 party received the key of a room from the lessor of the plaintiff, 
 and held the premises for about a year, when the defendant broke 
 in at night and took forcible possession, Lord Tenterden held that 
 the plaintiff was entitled to recover.^ In another case of ejectment, 
 where the lessor of the plaintiff proved that he had formerly held 
 the premises for twenty-three years, and during that time had re- 
 ceived and increased the rent, the court held that the defendant 
 could not rebut the presumption of a seisin in fee arising from these 
 unequivocal acts of ownership, by showing that he himself had sub- 
 sequently been ia possession for a period less ,than twenty years, 
 for presumption being thus met by presumption, the defendant was 
 bound to establish, if he could, a title of a higher description.^ In 
 some cases it will be presumed, that the fee-simple of the land 
 carries with it the right to the minerals ; '' but this presumption is 
 not universal, since in mining districts the right to the minerals 
 
 show that, in fact, it was not given in acknowledgment of a debt due. Lemere 
 V. Elliott, 30 L. J., Ex. 350 ; 6 H. &. N. 656, S. C. 
 
 • Fesenmayer v. Adcock, 16 M. & W. 449, questioning Douglas v. Holme, 12 
 A. & E. 641. 
 
 2 Id. ; Curtis v. Eiokards, 1 M. & Gr. 46 ; Croker v. Walsh, 2 Ir. Law R., 
 N. S. 552. See Wilson v. Wilson, 14 Com. B. 616, 626. 
 
 3 Curtis V. Eickards, 1 M. & Gr. 47, per Tindal, C. J. 
 
 * Asher v. Whitelock, 35 L. J., Q. B. 17 ; 1 Law Eep., Q. B. 1, S. C. 
 
 5 Doe V. DyebaU, 3 C. & P. 610 ; M. & M. 346, S. C. See Doe v. Barnard, 
 13 Q. B. 945. 
 
 " Doe V. Cooke, 7 Bing. 346 ; 5 M. & P. 181, S. C. See, also, Brest v. Lever, 
 7 M. & W. 593. 
 
 7 But see the Transfer of Land Act, 1862, 25 & 26 V., o. 53, § 9, and the 
 Land Transfer Act, 1875, 38 & 39 V., c. 87, § 18, both of which statutes, for 
 piirposes of registration of title, recognise an opposite presumption, unless, in 
 the description of the land, mines or minerals be expressly mentioned. 
 
144 LONG UNINTERRUPTED POSSESSION. [PART I. 
 
 and the fee-simple of the soil are frequently in different persons ; 
 and it may at all times he rebutted by showing, either an absence 
 of enjoyment of the minerals by the owner of the soil, or an actual 
 user of the minerals by a stranger.^ The law also presumes prima 
 facie, that the tenant of the surface is tenant of the subjacent strata, 
 but this presumption, like the last, is liable to be defeated, by proof 
 that the surface and the subsoil hare been dissevered in title, and 
 have become separate tenements.^ 
 
 § 126. The presumption of title arising from possession will be § ill 
 obviously much strengthened by proof of uninterrupted enjoyment 
 for a considerable time. In many cases, as before observed,* the 
 legislature has fixed what periods of undisturbed possession will 
 suffice to confer an absolute title ; and in these cases, when the 
 party by his pleading shows that he relies upon the statutory limita- 
 tion, no lapse of time but that of the full period fixed by Act of 
 ParUament will justify a presumption in support of the claim.* 
 But if, instead of depending upon the statute-law, the party rests 
 his case, as he may do, upon common-law presumption, or a 
 lost grant, the fact of enjoyment for a less period than the statu- 
 tory number of years, when coupled with other circumstances, will 
 warrant a jury in finding a verdict in his favour.^ 
 
 § 127. In other cases, to which the statutes of limitation do not § 112 
 extend, the same principles of presumptive evidence apply, though 
 they are necessarily open to a more vague iaterpretation. For in- 
 stance, though a plaintiff in ejectment is bound, as we have just 
 seen,^ to estabUsh his own title, he will not be required to prove 
 strictly every successive link in it, provided that the property has 
 been long in his possession. If, therefore, he claims under a feoff- 
 
 ' Eowe V. Grenfel, Ky. & M. 396, per Ld. Tenterden ; Eowe v. Brenton, 8 B. 
 & C. V37 ; Hodgkinson v. Fletcher, 3 Dong. 31. 
 
 2 Keyse v. Powell, 2 E. & B. 132 ; Smith v. Lloyd, 9 Ex. 562, 574, per 
 Parke, B. ^ Ante, § 74. 
 
 * See 2 & 3 W. 4, c. 71, § 6 ; 2 & 3 W. 4, c. 100, § 8 ; Eldridge v. Knott, 
 1 Cowp. 214 ; Lowe v. Carpenter, 6 Ex. E. 825. 
 
 5 See Bright v. Walker, 1 C. M. & R. 222, 223, per Parke, B. ; Ld. Stamford 
 V. Dunhar, 13 M. & W. 822, 827 ; Lowe v. Carpenter, 6 Ex. R. 830, 831, per 
 Parke, B. ; Hanmer v. Cliance, 4 De Gex, J. & S. 626, 631, per Ld. Westbnry. 
 
 « Ante, § 125. 
 
CHAP, v.] REGULARITY PRESUMED PROM LAPSE OF TIME. 145 
 
 ment, and can show that he has had uninterrupted enjoyment of 
 the premises for twenty years, the court and jury will presume, in 
 his favour, that the necessary formalities of a livery of seisin have 
 been comphed with.i- But this presumption will not be raised, 
 where the land has been held for a less period than twenty years,^ 
 nor will it, where the acts of the parties, or the other facts in the 
 case, lead to a different inference.^ Again, without any direct proof 
 of the passing of a bye-law, or the loss of it, the court will infer its 
 existence from a usage of long standing ; for where rights have 
 been exercised in a particular manner for many years without in- 
 terruption, it is only reasonable to presume that they have had a 
 legal origin.* 
 
 § 128. The maxim, ex diuturnitate temporis omnia prsesumuntur § 113 
 rite et solemniter esse acta, is of great value, and has been applied 
 to a variety of cases. Under certain circumstances this presump- 
 tion assumes a conclusive character. One instance has already 
 been furnished ^ in the case of ancient documents, the due execu- 
 tion of which will be presumed on their mere production. The 
 American courts recognise other apphcations of the rule. Thus, 
 after ^ the lapse of twenty years, they conclusively presume, in 
 favour of every judicial tribunal which has acted within its juris- 
 diction, that all persons interested in its proceedings have had due 
 notice.'^ So, it has been held in the United States, that where an 
 authority is given by law to executors, guardians, and other officers, 
 to make sales of lands upon being duly licensed by the courts, and 
 they are required to advertise the sales in a particular manner, 
 and to observe other formalities, the lapse of sufficient time, which 
 in most cases is fixed at thirty years, raises a conclusive presump- 
 
 1 Eees -u. Lloyd, WigMw. 123 ; Doe v. Cleveland, 9 B. & C. 864 ; 4 M. & R. 
 666, S. C. ; Doe v. Davles, 2 M. & W. 503 ; Doe v. Gardiner, 12 Com. B. 319. 
 
 2 See cases in last note. 
 
 3 Doe V. Gardiner, 12 Com. B. 319. 
 
 * E. V. Powell, 3 E. & B. 377 ; May. of HuU v. Horner, 1 Cowp. 110, per 
 Ld. Mansfield. See Johnson v. Barnes, 8 Law Eep., C. P. 527, per Ex. Ch. 
 = Ante, § 87. 
 
 « Gr. Ev. §§ 19 & 20, in great part. 
 ' Brown v. Wood, 17 Mass. 68. 
 
146 REGULARITY PRESUMED FROM LAPSE OF TIME. [PART I. 
 
 tion that all the legal formalities of the sale were observed.^ The 
 licence to sell, and the official character of the vendor, being provable 
 by record or judicial registration, must in general be so proved ; and 
 the deed must also be proved in the usual manner ; it is only the 
 intermediate proceedings that are presumed. Probatis extremis, 
 prcBsumivntur media. 
 
 § 129. In the Act vrhich was passed in 1874, to facilitate the 
 transfer of land,^ the legislature has incorporated the maxim in 
 question in one of the leading rules, which are henceforth to regu- 
 late the practice of conveyancers and the rights of vendors and pur- 
 chasers. For § 2 enacts, in substance, that in the completion of 
 any contract of sale of land, and subject to any stipulation to the 
 contrary in the contract, all recitals, statements, and descriptions 
 of facts, matters and parties, contained in deeds, instruments. Acts 
 of Parliament or statutory declarations, twenty years old at the 
 date of the contract, shall,^ — unless proved to be inaccurate, — be 
 sufficient evidence of the truth of the same. 
 
 § 130. One of the most important applications of the presump- § 114 
 tion under review, is to cases where the rights of the Crown are 
 concerned. Here,^ — though lapse of time does not of itself furnish 
 a conclusive legal bar to the title of the Sovereign, agreeably to the 
 mischievous maxim nullum tempus occwrit regi, — yet, if the adverse 
 claim could have had a legal commencement, juries are instructed 
 or advised to presume such commencement, after many years of 
 uninterrupted possession. Accordingly, royal grants, charters, and 
 even Acts of Parliament, have not infrequently been thus found by 
 the jury, after long continued peaceable enjoyment, accompanied by 
 the usual acts of ownership.* So, the long enjoyment of port 
 
 ' See Pejepscot Prop's v. Eansom, 14 Mass. 145 ; Blossom v. Cannon, id. 
 177 ; Colman v. Anderson, 10 Mass. 105 ; "Williams v. Eyton, 27 L. J., Ex. 
 176 ; 2 H. & N. 771, S. C. ; 4 H. & N. 357, S. C. in Ex. Ch. In some cases, 
 an interval of twenty years has been held sufficient. See Society, &c., v. 
 Wheeler, 1 New Hamp. E. 310. 
 
 2 37 & 38 v., c. 78, § 2. 
 
 ' Gr. Ev. § 45, in part, as to nine lines. 
 
 ■> B. V. Brown, cited 1 Cowp. 110 ; May. of Hull v. Horner, id. 102 ; 
 
CHAP, v.] TITLE PRESUMED FROM LONG ENJOYMENT. 147 
 
 duties, tolls, customary dues, fees, or the like will, if the nature of 
 the case admits of it,^ be held to warrant the presumption of any 
 fact necessary to make them legal : ^ and if distinct evidence of any 
 such payments he given as far back as living memory goes, the 
 jury, unless evidence to the contrary be shown, will be quite justi- 
 fied in presuming, or, rather, will be directed to presume, that such 
 payments were immemorial, or at least were referable to a legal 
 origin.* So, a series of acts of ownership exercised on the seashore 
 by the adjoining proprietor, will afford abundant evidence for a jury 
 to presume that the Crown formerly granted the soil to one of his 
 ancestors ; * and a similar inference may be drawn from the produc- 
 tion of a royal grant conveying the right of wreck.^ 
 
 § 131. Again, notwithstanding the rule which provides that, in § 114 
 order to constitute a valid dedication to the public of a highway, 
 the owner of the soil must intend to dedicate,^ the uninterrupted 
 
 Eldridge v. Knott, id. 215 ; Lopez v. Andrew, 3 M. & E. 329 a ; Delame 
 V. Clmrcli, 2 L. J., Ch. 113 ; O'Neill v. Allen, 9 Ir. Law E., N. S. 132, 141, 
 per Pigot, C. B. ; Doe d. Devine v. Wilson, 10 Moo. P. C. L. 527 ; Little v. 
 Wingfield, 11 Ir. Law E., N. S. 63 ; Eoe v. Ireland, 11 East, 280 ; Goodtitle 
 V. Baldwin, id. 488 ; Att.-Gen. v. Ewehne Hospital, 17 Beav. 366 ; Mather v. 
 Trinity Chtucli, 3 Serg. & E. 509. 
 
 1 See Gann v. Free Fishers of Whitstable, 20 Com. B., N. S. 1, in D'om. 
 Proc. ; 11 H. of L. Cas. 192, S. 0. ; overruling S. 0. in 0. P. and Ex. Oi., 
 Free Fishers of Whitstable v. Gann, and Gann v. Johnson, 11 Com. B., 
 N. S. 387, and 13 Com. B., N. S. 859 ; Bryant v. Foot, 2 Law Eep., Q. B. 161; 
 7 B. & S. 725, S. C. ; and in Ex. Ch., S. C. 3 Law Eep., Q. B. 497 ; 37 L. J., 
 Q. B. 217, and 9 B. & S. 444 ; Lawrence v. Hitch, 3 Law Eep., Q. B. 521, in 
 Ex. Ch.; 37 L. J., Q. B. 209 ; and 9 B. & S. 467, S. C. See, also, MiUs v. May. 
 of Colchester, 36 L. J., C. P. 216 ; 2 Law Eep., C. P. 476, S. C. ; and Free 
 Fishers of Whitstable v. Foreman, 2 Law Eep., C. P. 688, 716, 717 ; 37 L. J., 
 C. P. 305, S. C. in Ex. Ch. ; and S. C. ia Dom. Proc. nom. Foreman v. Free 
 Fishers of Whitstable, 38 L. J., C. P. 345. 
 
 ^ May. of Exeter v. Warren, 5 Q. B. 801, per Ld. Denman. 
 
 3 Malcomson v. O'Dea, 10 H. of L. Cas. 593 ; Mills v. May. of Colchester, 
 36 L. J., C. P. 213 ; D. of Beaufort v. Smith, 19 L. J., Ex. 106, per Parke, B. ; 
 4 Ex. R. 471, S. C. ; Pelham v. Pickersgill, 1 T. E. 667, per Ashhurst, J. ; 
 Shephard v. Payne, 3 New E. 580, per Ex. Ch. from C. P. 
 
 * Cahnady v. Eowe, 6 Com. B. 861 ; D. of Beaufort v. May. of Swansea, 3 
 Ex. R. 413 ; Le Strange v. Eowe, 4 Fost. & Fin. 1048, per Erie, C. J. ; Healy 
 V. Thome, I. E., 4 C. L. 495. See ante, § 119. 
 
 ' Hale de Jure Mar. 25, recognised in Cahnady v. Eowe, 6 Com. B. 8fi I. 
 
 = Poole V. HusHnson, 11 M. & W. 827. 
 
148 TITLE PRESUMED FROM LONG ENJOYMENT. [PART I. 
 
 user of a road by the public for forty or fifty years has been held 
 amply sufficient to justify a presumption in favour of the original 
 animus dedicandi, although there was ground for supposing that the 
 soil of the highway was vested in the Crown.^ Even a qualified or 
 partial dedication of a way may be presumed in like manner from 
 continuous use ; and in a recent case in which, as far back as living 
 memory went, the public had enjoyed a right of way across an 
 arable field, and the owner had ploughed up the field including the 
 path, it was presumed, first, that the original dedication of the way 
 was subject to the right of ploughing it up in due course of farm- 
 ing,^ and next, that although it had for a time become impassable 
 in consequence of such ploughing, the public had no right of 
 deviating from it.^ So,* after evidence of nearly forty years' posses- 
 sion of a tract of land, and proof of a prior order of council for its 
 survey, and of an actual survey, an American jury has been in- 
 structed to presume that a patent had been duly issued.^ In 
 regard, however, to Crown and public grants, a longer period is 
 generally deemed necessary, to justify this presumption, than in 
 the case of grants from private persons. 
 
 § 132. The principles upon which, in cases of incorporeal heredita- § ii4a 
 ments, grants may be presumed, as between private persons, from 
 mere uninterrupted user and enjoyment, have recently been much 
 discussed in Ireland ; and it seems now to be finally settled, first, 
 that juries in such cases should not be required to find as a fact that 
 a deed of grant has been actually executed, but that, without 
 believing any grant to have been made, they may often, under the 
 
 1 R. V. East Mark, 11 Q. B. 877 ; R. v. Petrie, 24 L. J., Q. B. 167 ; 4 E. & 
 B. 737, S. C. See Greenwicli Board of Works v. Maudslay, 5 Law Eep., Q. B. 
 397 ; 39 L. J., Q. B. 205, S. 0. 
 
 ' Mercer v. Woodgate, 10 B. & S. 833 ; 39 L. J., M. C. 21, S. C. ; Arnold v. 
 Blaker, 40 L. J., Q. B. 185, per Ex. Ch. 
 
 3 Arnold V. Holbrook, 8 Law Rep., Q. B. 96 ; 42 L. J., Q. B. 81, S. C. 
 
 ■■ Gr. Ev. § 45, in part. 
 
 ' Jackson v. M'Call, 10 Jolms. 377 : " Si probet possessionem excedentem 
 memoriam liominum, habet vim tituli et privilegii, etiam a Principe. Et li£eo 
 est differentia inter possessionem xxx vel xl annorum, et non memorabilis tem- 
 poris ; q^uia per illam acquiritur non directum, sed utile dominium ; per istam 
 autem dit-ectum." 1 Masc. de Prob., p. 239 ; concl. 199, n. 11, 12. 
 
CHAP, v.] PBE SUMPTION OF CONVEYANCE OF LEGAL TITLE. 149 
 
 instruction of the court, presume its existence for the simple pur- 
 pose of quieting possession,^ — and next, that this presumption may 
 be sometimes raised even against a reversioner, provided it can be 
 either directly proved, or reasonably inferred, that he has had full 
 knowledge of his opponent's actual enjoyment of the right in 
 question, and has tacitly assented thereto.^ But still the presump- 
 tion of a grant can only arise, when the person against whom the 
 right is claimed might have interrupted or prevented the user re- 
 lied on ; ^ and, therefore, the grant of a right to the uninterrupted 
 passage of air to a windmill from over the soil of a neighbour, can- 
 not be presumed from an uninterrupted use of the mill for forty 
 years.* 
 
 § 133.^ Juries are also sometimes advised, in more or less for- § US 
 cible terms, to presume conveyances of corporeal hereditaments 
 between private individuals, in favour of the party who has proved 
 a right to the beneficial ownership, and whose undisturbed posses- 
 sion, being consistent with the existence of the conveyance required 
 to be presumed, affords reasonable ground for belief that the legal 
 title has in fact been conveyed.^ This presumption is made, in 
 order to prevent an apparently just title from being defeated by 
 mere formal matter ; '' but, to adopt the language of Chief Justice 
 Tindal,* " no case can be put in which any presumption has been 
 
 ' DeeMe v. Liaehan, 12 Ir. Law R, N. S. 1, per Ex. Cli., following tHe dicta 
 of Ld. Mansfield in Eldridge v. Knott, 1 Cowp. 214, and of Ld. Wensleydale 
 in Briglit v. Waller, 1 C. M. & E. 217, and in Magdalen CoU. v. Att.-Gen., 3 
 Jur., N. S. 675, cor. Dom. Proc, and overruling a dictum of Bayley, B., ia 
 Day V. Williams, 2 C. & J. 461 ; Little v. Wingfield, 11 Ir. Law E., N. S. 63, 
 per Ex. Ch. 
 
 2 Deeble v. Linelian, 12 Ir. Law E., N. S. 1, per Ex. Ch. ; Wiaterbottom v. 
 Ld. Derby, 2 Law Eep., Ex. 316. 
 
 ' Chasemore v. Eichards, V H. of L. Gas. 349. 
 
 " Webb V. Bird, 13 Com. B., N. S. 841, per Ex. Ch. 
 
 ' Gr. Ev. § 46, in part. 
 
 6 Doe V. Cooke, 6 Bing. 180, per Tindal, C. J. See Doe v. Millett, 11 Q. B. 
 1036, and cases there cited. 
 
 ' Doe i\ Cooke, 6 Bing. 180, per Tindal, C. J. ; Doe v. Sybonin, 7 T. E. 3, 
 per Ld. Kenyon. 
 
 * Doe V. Cooke, 6 Bing. 179. But see Little v. Wingfield, 11 Ir. Law E., 
 N. S. 63, 73, 103, where the passage cited above is called in question as laying 
 down the law too narrowly. 
 
150 PBESUMPTION OF CONVEYANCE OF LEGAL TITLE. [PAET I. 
 
 made, except when a title has heen shown by the party who calls 
 for the presumption, good in substance, but wanting some collateral 
 matter necessary to make it complete in point of form. In such 
 case, where the possession is shown to have been consistent with 
 the existence of the fact directed to be presumed, and in such case 
 only, has it ever been allowed." 
 
 § 134. Subject to these observations, the presumption in favour § uq 
 of a conveyance will, ia general, be allowed to prevail, whenever it 
 was the declared duty of trustees to convey to the beneficial owner 
 at a specified time, as upon his attainment of the age of majority, 
 or on the death of a cestui que vie, or after the payment of debts, 
 legacies, portions, or the like ; for in such cases it is reasonable to 
 presume that the trustees have performed their duty, and done what 
 a court of equity would corftpel them to do.^ A like presumption 
 will probably arise where the duty to convey, though not expressly 
 declared, may constructively be gathered from the object of the 
 trust ; as, for instance, where an estate is vested in trustees for a 
 temporary purpose, which has been attained, and no further in- 
 tention is declared, or can reasonably be inferred, requiring the 
 legal estate to remain outstanding.^ 
 
 § 135. It has been asserted, and probably with correctness, that § 117 
 this presumption will never be made against the owner of the in- 
 heritance, with the single exception of those cases where he has 
 attempted to defeat the solemn acts of himself, or of those through 
 whom he claims. Thus, if a mortgagor attempt to set up an out- 
 standing fee as against a mortgagee for years, or the appointee of a 
 devisee in fee dispute the former right of the devisor to grant a lease 
 
 1 England v. Slade, 4 T. E. 682 ; Doe v. Syboum, 7 T. E. 2 ; 2 Esp. 496, 
 S. C. ; WUson v. AUen, 1 Jao. & W. 611, 620, per Sii T. Plumer ; Emery v. 
 Grocock, 6 Madd. 54, per Sir J. Leaoli. In England v. Slade, a conveyance 
 from the trustees was presumed, though, only tlwee years had elapsed from the 
 time when they ought to have conveyed. 
 
 ' HiUary v. Waller, 12 Ves. 239, 252, per Sir W. Grant ; Doe v. Lloyd, Pea. 
 Ev. App. 41, per Lawrence, J. These cases tend to establish a doctrine some- 
 what more favourable to presumption, than that stated Ln the text, but they 
 have not met with general approbation from the profession, See 2 Sug. V. & P. 
 196 ; Math., Pres. Ev. 215—217. 
 
CHAP, v.] OUTSTANDING TEKMS' ACT. 151 
 
 of the premises in question, on the ground that the legal estate was, 
 at the time of the grant, outstanding in a trustee, the jury, in cases 
 where the estoppel is not pleaded, may still presume a conyeyance ; 
 for, in the first case,^ the presumption will he made in favour of the 
 honesty of the mortgagor at the time of the mortgage, though 
 against his interest at the time of the trial ; and in the second,^ it 
 will equally preyail, in order to give validity and effect to the grant 
 of the devisor, which would otherwise be void. 
 
 § 136. Questions respecting this head of presumptions frequently § 118 
 arose in former times, when juries used to he called upon to pre- 
 sume the surrender of outstanding satisfied terms ; ^ but by an 
 excellent Act,* which was passed in the year 1845, these questions 
 were finally settled. The Act, — after reciting that "the assignment 
 of satisfied terms has been found to be attended with great difficulty, 
 delay, and expense, and to operate, in many cases, to the prejudice 
 of the persons justly entitled to the lands to which they relate," — 
 enacts, that " every satisfied term of years, which either hy express 
 declaration or by construction of law,^ shall, upon the 31st day of 
 December, 1845, be attendant upon the inheritance or reversion of 
 any land, shall on that day absolutely cease and determine as to 
 the land, upon the inheritance or reversion whereof such term shall 
 be attendant as aforesaid, except that every such term of years which 
 shall be so attendant as aforesaid by express declaration, although 
 thereby made to cease and determine, shall afford to every person 
 the same protection against every incumbrance, charge, estate, 
 right, action, suit, claim, and demand, as it would have afforded to 
 
 1 Per Abbott, C. J., in Doe i). Hilder, 2 B. & A, 790 ; CottreU ■;;. Hughes, 15 
 Com. B. 532. 
 
 2 Bartlett v. Downes, 3 B. & C. 616, 622, per Abbott, C. J. 
 
 3 See Garrard v. Tuck, 8 Com. B. 231 ; Doe v. Langdon, 12 Q. B. 711. 
 
 « 8 & 9 v., c. 112. The rough draft of §§ 1 & 2 of this Act was drawn 
 by Mr. Davidson, and settled by Mr. Christie. The subject was afterwards 
 submitted to the Law Amend. Society, who sanctioned the proposed amend- 
 ment ; and the Bill was then drawn in its present form by one of the ablest 
 members of that body, and became the law of the land under the auspices of 
 Ld. Brougham. 
 
 * See Doe v. Price, 16 M. & W. 603 ; Doe v. Moulsdale, id. 689 ; Doe v. 
 Jones, 13 Q. B. 774 ; Cottrell v. Hughes, 15 Com. B. 532 ; Plant v. Taylor, 
 7H. &N. 211. 
 
152 PEESUMPTION OF SUKEENDER OF LEASE. [PAET I. 
 
 him if it had continued to subsist, but had not been assigned or 
 dealt with, after the said 31st day of December, 1845, and shall, 
 for the pui-pose of such protection, be considered in eyery court of 
 law and of equity to be a subsisting term." § 2 enacts, that " every 
 term of years now subsisting or hereafter to be created, becoming 
 satisfied after the said 31st of December, 1845, and which by 
 express declaration or construction of law, shall after that day be- 
 come attendant upon the inheritance or reversion of any lands, 
 shall, immediately upon the same becoming so attendant, abso- 
 lutely cease and determine as to the land, upon the inheritance or 
 reversion whereof such term shall become attendant as aforesaid." ^ 
 
 § 137. Notwithstanding this Act, it is perfectly clear that no § 119 
 presumption can be allowed in favour of the surrender of a term 
 which is still unsatisfied,^ or the continuance of which is found in 
 a special verdict, or admitted in a special case ; ^ for, whatever in- 
 dividual hardship may result from the rule of law that a plaintiff in 
 ejectment must recover from the strength of his own legal title, it is 
 obviously absurd to permit any inference to be drawn, which is directly 
 opposed, either to the ascertained fact, or to all reasonable belief.* 
 
 § 138. A jury may also, under certain circumstances, presume § 120 
 the surrender of a lease by operation of law ; for, although the pro- 
 duction by the lessor of a cancelled lease will not warrant the pre- 
 sumption of such a surrender as will satisfy the Statute of Frauds ; ^ 
 yet, when that fact was coupled with proof that a new lease had 
 been granted to another party, who, like the former lessee, was a 
 mere trustee for the same cestuis que trust, and it further appeared, 
 
 ' § 3 enacts, that " in the oonstmction and for the purposes of this Act, 
 unless there be something in the subject or context repugnant to such con- 
 struction, the word ' lands ' shall extend to all freehold tenements and here- 
 ditaments, whether corporeal or incorporeal, and to all such customary land 
 as will pass by deed, or deed and admittance, and not by surrender, or any 
 undivided part or share thereof respectively." 
 
 ^ Doe V. Staple, 2 T. R. 084, where the lessor of the plaintiff was heir-at-law, 
 and only claimed the premises subject to the charge. 
 
 3 Goodtitle v. Jones, 7 T. R. 47 ; Roe v. Reade, 8 id. 118. 
 
 ^ See per Bayley, J., in R. v. Upton Gray, 10 B. & 0. 812. 
 
 5 Doe V. Thomas, 9 B. & C. 299 ; 4 M. & R. 218, S. C. ; Roe v. Abp. of York, 
 6 Bast, 86. 
 
CHAP. V.l UNINTERBUPTED USEE STALE DEMANDS. 153 
 
 that when leases were renewed from time to time, the usage was to 
 send in the old lease to be cancelled in the lessor's oiEce, the jury 
 were allowed to infer, that the second lease was granted with the 
 assent of the former tenant, and then the court held ^ that this was 
 as valid a surrender of the first interest by operation of law, as if the 
 former tenancy had been determined in writing.^ So, the unexplained 
 payment of an abated rent for thirty years by a tenant of premises, 
 which were shown to have been leased to another party for an un- 
 expired term, has been treated in Ireland as evidence from which a 
 jury might presume the surrender of the original lease, and the 
 creation of a new tenancy from year to year, at the abated rent, in 
 favour of the present occupier.^ 
 
 § 139. The same principle has been applied to a variety of other § 121 
 matters. For example, where ejectment was brought to recover a 
 messuage, which had been demised for a long term of years, — the 
 lease containing a covenant by the lessee that the house should not 
 be used as a shop without the written consent of the lessor, and a 
 proviso for re-entry on the breach of such covenant, — the court held 
 that, on proof of the uninterrupted user of the premises as a beer- 
 shop for twenty years, the jury ought to be directed to presume 
 that a license in writing had been duly given.* So, after the lapse 
 of sixty years, the court, in the absence of any direct evidence, has 
 presumed that executors, who were proved to have renounced, had 
 also disclaimed an estate in a chattel real, which had been be- 
 queathed to them by the testator.^ Indeed, it may be stated as a 
 general proposition,^ that stale demands ought always to be regarded 
 in courts of justice with jealous suspicion,''' and that long acqui- 
 
 ' See Thomas v. Cook, 2 Stark. R. 408 ; 2 B. & A. 119, S. C. 
 
 2 Walker v. Rioliardsoii, 1 M. & W. 882. See post, §§ 1009, 1010. 
 
 ' Lefroy v. Walsh, 1 Ir. Law E., N. S. 311. See, also, Tennent v. Neil, I. R., 
 5 0. L. 418, per Ex. Oh, ; In re Renew. Leaseh. Conv. Act, Ex parte Raymond, 
 I. R. 8 E(i. 231. 
 
 ■• Gihson v. Doey, 27 L. J., Ex. 37 ; S. C, nom. Gibson v. Doeg, 2 H. & 
 N. 615. 
 
 » M'Kenna v. Eager, I. R., 9 C. L. 79. 
 
 ^ Gr. Ev. § 47, in great part. 
 
 '' Sihhering v. Ld. Balcarras, 3 De Gex & Sm. 735. See H,, falsely called 
 
154 EECENT POSSESSION OF STOLEN PEOPEETT. [PAET I. 
 
 escence in any adverse claim of right is good ground, on which a 
 jury may presume that the claim had a legal commencement ; ^ 
 since it is contrary to general experience for one man long to con- 
 tinue to pay money to another, or to perform any onerous duty, or 
 to submit to any inconvenient claim, unless in pursuance of some 
 contract, or other legal obligation.^ 
 
 § 140. The possession of stolen property recently after the com- § 122 
 mission of a theft, is prima facie evidence that the possessor was 
 either the thief, or the receiver, according to the other circumstances 
 of the case ; ^ and this presumption, when unexplained,* either by 
 direct evidence, or by the character and habits of the possessor, or 
 otherwise, is usually regarded by the jury as conclusive.^ The 
 question as to what amounts to recent possession, varies according 
 as the stolen article is or is not calculated to pass readily from hand 
 to hand. Thus, where two ends of woollen cloth in an unfinished 
 state, consisting of about twenty yards each, were found in the 
 possession of the prisoner two months after they had been stolen, 
 Mr. Justice Patteson held that the prisoner should explain how he 
 came by the property.^ But, where the only evidence against a 
 prisoner was, that certain tools had been traced to his possession 
 three months after their loss, Mr. Justice Parke directed an ac- 
 quittal ; '' and Mr. Justice Maule pursued a similar course on an 
 
 C. V. C, 31 L. J., Pr. & Mat. 103 ; T. v. D., falsely caUed D., 1 Law Eep., 
 P. & D. 127. So, the non-user of a patent for a series of years raises a 
 strong presumption of its practical inutility ; Ee Allan's Patent, 1 Law Kep., 
 P. C. 507 ; 4 Moo. P. C, N. S. 443, S. C. ; Ee BakeweU's Patent, 15 Moo. 
 P. C. 385. 
 
 1 See Ee Birch, 17 Beav, 358. 
 
 = See Castleden v. Castleden, 9 H. of L. Cas. 186 ; 4 Macq. Sc. Cas. H. of 
 L. 159, S. C. ; Ogilvie v. Currie, 37 L. J., Ch. 541, per Ld. Cairns, Ch. 
 
 3 E. V. Langmead, 1 L, & Cave, 427 ; 9 Cox, 464, 8. C. 
 
 " E. V. ExaU, 4 Fost. & Fin. 922, per PoUock, C. B. 
 
 ' 2 East, P. C. 656 ; E. v. , 2 C. & P. 459 ; the State v. Adams, 1 Hayw. 
 
 463 ; Wills, Cir. Ev. 53. " Furtum prsesumitur conimissuni ab illo, penes 
 quern res furata inventa fuerit, adeo ut si non docuerit a quo rem habuerit, 
 justfe, ex ilia inventione, poterit subjici tormentis.'' 2 Masc. de Prob., concl. 
 834 ; Menoch. de Press, lib. 5, pries. 31. See ante, § 63. 
 
 « E. V. Partridge, 7 G, & P. 551. 
 
 !■ E. V. Adams, 3 C. & P. 600. See E. v. Cockin, 2 Lew. C. C. 235, where 
 
CHAP. V.J EECEKT POSSESSION OF STOLEN PROPERTY. 155 
 
 indictment for horse stealing, where it appeared that the horse was 
 not discovered in the custody of the accused until after six months 
 from the date of the robbery.^ So, where goods, lost sixteen 
 months before, were found in the prisoner's house, and no other 
 evidence, was adduced against him, he was not called upon for his 
 defence.^ Indeed, the finding of stolen property in the house of the 
 accused, provided there were other inmates capable of committing 
 the larceny, will of itself be insufficient to prove his possession, 
 however recently the theft may have been effected ; ^ though, if 
 coupled with proof of other suspicious circumstances, it may fully 
 warrant the prisoner's conviction, even though the property be not 
 found in his house until after his apprehension.* 
 
 § 141. This presumption, which in all cases is one oifact rather § 122 
 than of law, is occasionally so strong as to render unnecessary any 
 direct proof of what is called the corpus delicti. Thus, to borrow 
 an apt illustration from Mr. Justice Maule, if a man were to go into 
 the London Docks quite sober, and shortly afterwards were found 
 very drunk, staggering out of one of the cellars, in which above a 
 million gallons of wine are stowed, " I think," says the learned 
 judge, — and most persons will probably agree with him, — " that 
 this would be reasonable evidence that the man had stolen some of 
 the wine in the cellar, though no proof were given that any parti- 
 
 two sacks were found in the prisoner's possession twenty days after they had 
 been missed ; and Coleridge, J., left the question to the jury, observing, that 
 " stolen property usually passes through many hands.'' See the observations 
 of the Reporter on this presumption, id. 
 
 ' R. V. Cooper, 3 C. & Kii. 318 ; R. v. Harris, 8 Cox, 333, per Channell, B. 
 
 2 E. V. , 2 C. & P. 459, per Bayley, J. 
 
 3 2 St. Ev. 614, n. g. See Ex parte Ransley, 3 D. & R. 572. In that case, 
 the bare finding of smuggled spirits in the defendant's house, during his absence 
 from home, was held insufficient to support a conviction under 11 G. 1, c. 30, 
 § 16 (now repealed by 30 & 31 V., c. 59), for knowingly harbouring and con- 
 cealing three gallons of foreign Geneva, &c. Abbott, C. J., observed, " The 
 mere naked fact of the spirits being found in the defendant's house during his 
 absence cannot be considered as conclusive evidence of knowledge to support a 
 conviction on this statute. There is abundant ground for suspicion, but we 
 cannot say that it is a clear and satisfactory ground to convict." See also R. v. 
 Hale, 2 Cowp. 728. 
 
 ■" R. V. Watson, 2 Stark. R. 139, per Ld. EUenborough & Abbott, J. 
 
156 PRESUMPTION OMNIA EITE ESSE ACTA. [PAET I. 
 
 cular vat had been broached, and that any wine had actually been 
 missed." ^ 
 
 § 142.^ The presumption under discussion is not confined to § 123 
 cases of theft, but applies to all crimes, even the most penal. 
 Thus, on an indictment for arson, proof that property, which was 
 in the house at the time it was burnt, was soon afterwards found 
 in the possession of the prisoner, has been held to raise a probable 
 presumption that he was present and concerned in the offence.^ 
 A like inference has been raised in the case of murder accom- 
 panied by robbery,* in the case of burglary,^ and in the case of 
 the possession of a quantity of counterfeit money.^ 
 
 § 143. One of the most important presumptions known to the § 124 
 law is that which is usually embodied in the maxim " omnia 
 prcesumuntur rite esse acta." This presumption, — ^which in prin- 
 ciple is nearly allied to that of innocence, — is, as we have seen,'' 
 in some instances conclusive, but in the great majority of cases 
 to which it applies, it is only available, donee probetur in con- 
 trarium.* The application of this presumption to acts of an official 
 or judicial character will be best illustrated by referring to one 
 or two decisions.' For instance, it has been held, that, where 
 successive decisions are inconsistent with a general order of the 
 court, a reversal of that order ought to be presumed.-^" So, on an 
 indictment for perjury in an answer to a bill in Chancery, proof 
 
 ' E. a. Barton, Pearce & D. 284. See, also, E. v. Mockford, 11 Cox, 16. 
 In. R. V. W ill jam a, 11 Oox, 684, Montague Sniitli, J., is reported to have laid 
 down the law in a very different spirit ; but that case surely cannot he 
 relied upon. 
 
 2 Gr. Ev. § 34. 
 
 3 R. V. Rickman, 2 East, P. C. 1035. 
 * WiUs, Cir. Ev. 61. 
 
 " See E. V. Gould, 9 C. & P. 364 ; R. v. ExaU, 4 Fost, & Fin. 922. 
 
 6 E. V. Fuller, R. & R. 308 ; R. v. Jarvis, 25 L. J., M. C. 30 ; Pearce & D. 
 552, S. C. 
 
 ' Ante, §§ 84—88. 
 
 8 See R. V. Bjornsen, 1 L. & Cave, 545 ; 10 Cox, 74 ; 34 L. J., M. C. 
 180, S. C. 
 
 ' See, also, Lee v. Johnstone, 1 Law Rep., H. L, Sc, 426. 
 
 w Bohun V. Delessert, 2 Coop. 21, per Ld. Eldon ; Man v. Ricketts, id. 8, 21, 
 per Ld. Lyndhurst. 
 
CHAP, v.] OFFICIAL AND JUDICIAL ACTS. 157 
 
 of the signatures of the defendant, and of the Master in Chancery 
 before whom the answer purported to have been sworn, has been 
 held sufficient evidence that the defendant was regularly sworn to 
 the truth of its contents, though the clerk, who proved the hand- 
 writing of the Master, had no recollection of administering the 
 oath, and admitted that the jurat was not written by himself.-^ 
 So, where a town was proved to be in the military occupation of 
 an enemy, and proclamations, purporting to be signed by the 
 general in command, were posted on its walls, this was held to be 
 evidence whence a jury might infer that the placards had been 
 printed and posted by the authority of the commander.^ 
 
 § 144. Again, on an indictment for bigamy, proof of the § 124 
 solemnisation of the first marriage in a Wesleyan chapel in the 
 presence of the registrar, and of the entry of such marriage in his 
 book, has been held to raise a prima facie presumption that the 
 chapel was duly registered ; ^ and in another similar prosecution, 
 where the marriage was shown by a witness present at it to have 
 been solemnised in a parish church by the curate of the parish, it 
 was deemed unnecessary to prove either the registration of the 
 marriage, or the fact of any licence having been granted, or of any 
 banns having been published.* So, the constant performance of 
 divine service from an early period in a chapel, raises a prima facie 
 presumption that it has been duly consecrated.^ 
 
 § 145. Again, a party being detained for debt in the gaol of § ^^^ 
 the sheriff of Devonshire, a writ of ca. sa. at the suit of the sheriff 
 was directed to the coroner of the county, and was lodged with 
 the keeper of the gaol. On motion to discharge this party out 
 of custody on the ground of irregularity in the proceedings, 
 it did not appear from the affidavits that the writ was ever in 
 
 1 E. V. Benson, 2 Camp. 508, per Ld. EUenborough. See, also, Cheney v. 
 CoiTrtois, 13 Com. B., N. S. 634. ' Bruce v. Nicolopulo, 11 Ex. E. 129. 
 
 3 E. V. Mainwaring, 26 L. J., M. C. 10 ; 7 Cox, 192 ; 1 Dear. & Bell, 132 
 S. C. ; Sichel v. Lambert, 15 Com. B., N. S. 781 ; 33 L. J., C. P. 137, S. C. • 
 E. V. Cradook, 3 Fost. & Fin. 837, per WiUes, J., and Pollook, C. B. ' 
 
 * E. V. Allison, E. & E. 109. See Limerick v. Limerick, 32 L. J. Pr. & Mat 
 22 ; 4 Swab. & Trist. 252, S. C. 
 
 ^ Eugg V. Kingsmill, 1 Law Eep., Adm. & Eco. 343 ; E. v. Cresswell 45 L J 
 C. C. 77 ; 13 Cox, 126 ; and L. E., 1 Q. B. D. 446, S. C. ' ' ' 
 
158 PRESUMPTION OMNIA RITE ESSE ACTA. [PAKT I. 
 
 the coroner's hands, but in a return which the gaoler had made 
 to a writ of habeas corpus previously issued, the ca. sa. was set 
 out, together with a certificate by the coroner, that this was a 
 true copy of the writ. Upon these facts the court gave such credit 
 to the regularity of the proceedings, as to presume that the writ 
 had in due course come to the gaoler through the coroner.^ So, 
 where a parish certificate purported to be granted by A, the only 
 churchwarden, and B, the only overseer of the parish, the court, 
 after a lapse of sixty years, during which time the appellant 
 parish had submitted to the certificate, presumed in its favour 
 that, by custom, there was only one churchwarden in the parish, 
 and that two overseers had been originally appointed, but that one 
 of them was dead, and his vacancy not filled up at the date of the 
 certificate.^ A like presumption was made in favour of a parish 
 indenture of apprenticeship, which was signed only by one 
 churchwarden and one overseer.^ So, where a parish deed of 
 apprenticeship had been allowed by the justices pursuant to the 
 statute,* the court, in the absence of evidence to the contrary, 
 presumed that notice had been duly given to the officers of the 
 parish, where the apprentice was to serve ; ^ and where a similar 
 indenture, certified by the allowance of the justices, contained a 
 recital of the order of binding, it was held that no evidence of 
 such order, beyond the indenture itself, was necessary.^ So, where 
 the deed of apprenticeship, executed thirty years before, and under 
 which the apprentice had regularly served his time, was proved to 
 be lost, and it further appeared that the parish, in which the 
 pauper was settled under this indenture, had reUeved him for the 
 last twelve years, the court considered that the Sessions had acted 
 rightly in presuming that the deed was properly stamped, though 
 
 1 Bastard v. Trutoh, 3 A. & B. 451 ; 5 N. & M. 109 ; 4 Dowl. 6, S. C. 
 
 2 E. u. Catesby, 2 B. & C. 814 ; see, also, R. v. Whitoliurch, 7 B. & 0. 573. 
 Prom E. V. Upton. Gray, 10 B. & C. 807, it appears that this presumption is 
 rather one of fact than of law. 
 
 3 E. V. Hinckley, 12 East, 361 ; R. v. Stainforth, 11 Q. B. 66. 
 * 56 G. 3, c. 139, §§ 1, 2 ; 3 & 4 W. 4, c. 63, § 1. 
 
 » E. V. Whiston, 4 A. & E. 607 ; 6 N. & M. 65, S. 0. ; E. v. Witney, 5 A. & 
 E. 191 ; 6 N. & M. 552, S. C. 
 
 ' R. V. Stainforth, 11 Q. B. 66. See, also, E. v. St. Mary Magdalen, 2 E. & 
 B. 809 ; R. v. Broadhempston, 28 L. J., M. C. 18 ; 1 E. & E. 154, S. 0. 
 
CHAP. V.J SUMMARY CONVICTIONS — JURISDICTION. 159 
 
 the stamp officers proved that it did not appear in their office, that 
 any such indenture had been stamped during the last thirty-one 
 years.-' 
 
 § 146. In like manner every reasonable intendment will he § 125 
 made in support of an order of justices, provided it appear on the 
 face of the order that the justices had jurisdiction ; ^ but this 
 rule does not extend to convictions, which combining, as they 
 do, summary power with penal consequences, are watched with 
 peculiar vigilance by the superior courts, and are construed with 
 at least as great strictness as indictments.^ Still, even with 
 respect to convictions, if the authority of the magistrate can be 
 distinctly collected from the facts stated on the record, the court 
 will not be astute in discovering irregularities in the proceedings ; 
 and the safest rule which can be laid down on the subject is, in 
 the words of Lord EUenborough, that the court " can intend 
 nothing in favour of convictions, and will intend nothing against 
 them."* 
 
 § 147. Neither does this presumption apply so as in any event § i26 
 to give jurisdiction to inferior courts, or to magistrates, or others, 
 acting judicially under a special statutory power ; but in all such 
 cases, every circumstance required by the statute to give juris- 
 diction must appear on the face of the proceedings, either by 
 direct averment, or by reasonable intendment.^ There is no 
 
 • K. V. Long Buckby, 7 East, 45. In this case, as also in that of E. v. 
 Cateshy, 2 B. & C. 814, the judgment of the court partly rested on the 
 presumption of validity arising from long acquiescence. See ante, §§ 126 — 
 131, 139. 
 
 2 E. V. Morris, 4 T. E. 552, per Ld. Kenyon ; Ormerod v. Chadwick, 16 
 M. & W. 367 ; E. v. Preston, 12 Q. B. 816, 825, 826 ; E. v. Stainforth, 11 
 Q. B. 66. 
 
 3 B. V. Morris, 4 T. E. 552 ; E. v. Baines, 2 Ld. Bay. 1265, 1269 ; Fletcher 
 V. Calthrop, 6 Q. B. 880, 891 ; E. v. Little, 1 Burr. 613, per Ld. Mansfield ; E. 
 u Corden, 4 id. 2281, where the court ohserved that " a tight hand ought to he 
 holden over these summary convictions ; " E. v. Pain, 7 D. & E. 678, per 
 Abbott, C. J. ; E. v. Daman, 2 B. & A. 378. 
 
 " E. V. Hazell, 13 East, 141. See Paley on Conv. 74—77. 
 
 5 E. V. All Saints, Southampton, 7 B. & C. 790, per Hoboyd, J. ; Gosset v. 
 Howard, 10 Q. B. 452, 453 ; E. v. Helling, 1 Str. 8, per Pratt, C. J. ; R. v. 
 Totness, 11 Q. B. 80 ; E. v. Hulcott, 6 T. E. 583. 
 
160 PRESUMPTION OMNIA RITJ: ESSE ACTA. [PAET I. 
 
 distinction, in this respect, between convictions, commitments,^ 
 inquisitions, warrants to arrest, examinations, or orders ; ^ and 
 whether the order be made by the Lord Chancellor, under the 
 special Act, or by a justice of the peace, the facts which gave the 
 authority must be stated.^ But though the High Court of Justice, 
 in the exercise of its superintending power, will intend nothing in 
 favour of inferior jurisdictions, it will intend nothing against them, 
 but will decide according to the very language employed in the 
 order or other judicial document.* On motions for a prohibition, 
 the judges of that court have more than once emphatically rejected 
 any intendment that the Ecclesiastical Courts would outstep their 
 duty, or act in any way inconsistently with the law ; ^ and on the 
 same principle they have refused to anticipate the decision of the 
 master on a question of costs, as they cannot presume that he will 
 decide erroneously.^ 
 
 § 148. This presumption has, in many instances, been recog- § 127 
 nised ia support of the solemn acts of even private persons, but a 
 reference to a few of the more modern cases will, it is hoped, be 
 sufficient to illustrate its operation in connection with such acts. 
 Thus, although in the case of contracts not under seal, a con- 
 sideration must in general be averred and proved, yet bills of 
 exchange and promissory notes enjoy the privilege of being 
 presumed, prima facie, to be founded on a valuable considera- 
 tion.'' The law raises this presumption in favour of these 
 
 ' But a warrant of oonmiitineiit which purports to be founded on a preceding 
 conviction will be good, though it does not state that the evidence was given on 
 oath, or in the presence of the prisoner, Ex parte Bailey, & Ex parte Collier, 
 23 L. J., M. 0. 161 ; 3 E. & B. 607, S. C. 
 
 ^ Day V. King, 5 A. & E. 359, per WUliams, J. ; Brook v. Jenney, 2 
 Q. B. 273, per id. ; Johnson v. Eeid, 6 M. & W. 124 ; Gosset v. Howard, 10 
 Q. B. 453. 
 
 3 Christie v. Unwin, 11 A. & B. 379, per Coleridge, J. 
 
 " E. V. Helling, 1 Str. 8, per Pratt, C. J. ; Christie v. Unwiu, 11' A. & E. , 
 379, per Coleridge, J. ; In re Clark, 2 Q. B. 630, per Ld. Denman. 
 
 * Chesterton v. Farlar, 7 A. & E. 713 ; Hall v. Maule, id. 721 ; Hallack v. 
 U. of Cambridge, 1 Q. B. 593, 614, 615. 
 
 8 Head v. Baldry, 8 A. & E. 605. 
 
 7 Collins V. Martin, 1 B. & P. 651 ; HoUiday v. Atkinson, 5 B. & C. 501 ; 
 Story, Bills, §§ 16, 178. See ante, § 86 ; and see, also, "The Summary Pro- 
 cedure on Bills of Exchange Act, 1855," 18 & 19 V., c. 67. 
 
CHAP, v.] SOLEMN ACTS OF PRIYATE PEESONS. 161 
 
 instruments, partly, because it is important to preserve their 
 negotiability intact, and partly, because the existence of a valid 
 consideration may reasonably be inferred from the solemnity of 
 the instruments themselves, and the deliberate mode in which 
 they are executed.^ So, if secondary evidence is tendered to 
 prove the contents of an instrument, which is either lost, or 
 retained by the opposite party after notice to produce it, the court 
 wiU presume that the origiaal was duly stamped, unless some 
 evidence to the contrary, as, for example, that it was unstamped 
 when last seen,^ can be given.^ So, under the Act of 1877 to facili- 
 tate leases and sales of settled estates, the execution of a lease by 
 the lessor furnishes sufficient presumptive evidence that the coun- 
 terpart has been duly executed by the lessee.* So, in the absence 
 of all proof, as to which of two deeds of even date was first 
 executed, the court will presume in favour of that order of priority, 
 which will best support the clear intent of the parties.* So, 
 where an act has been done by a joint stock company, to the 
 legality of which certain formalities are requisite, and the circum- 
 stances are such that acquiescence may be imputed to the share- 
 holders, a compliance with the necessary formalities will, as 
 against the company, be presumed.^ So, in an action of eject- 
 ment brought upon the assignment of a term by the defendant 
 to secure the payment of an annuity to the plaintiff, the court 
 will presume that the annuity has been duly enrolled,'^ and the 
 
 1 Story, BiUs, §§ 16, 178. 
 
 2 Marine Investment Co. v. Haviside, 5 Law Eep., H. L. 624 ; 42 L. J., Cli. 
 173, per Dom. Proc. S. C. 
 
 ^ Hart -D. Hart, 1 Hare, 1, per Wigram, V.-C. ; Crowther v. Solomons, 6 
 Com. B. 758 ; Pooley v. Goodwin, 4 A. & E. 94 ; Crisp v. Anderson, 1 Stark. 
 R. 35 ; E. V. Long Buokby, 7 East, 45 ; Closmadeuo v. Carrel, 18 Com. B. 36. 
 See Arljon v. Fussell, 1 New R. 31, per Ex. ; Connor v. Cronin, 7 Ir. Law R. 
 480 ; Herbert v. Eae, 13 Ir. Eq. R., N. S. 25, per Smith, M. R. ; 33 & 34 V., 
 c. 46, § 58, Ir. •• 40 & 41 V., c. 18, § 48. 
 
 ' Taylor v. Horde, 1 Burr. 107. See R. ■!;. Astburton, 8 Q. B. 876. 
 
 6 Re the British Prov. Life & Fire Ass. Soc, 32 L. J., Ch. 326 ; 1 De Gex, 
 J. & S. 488, S. C, nom. Grady's case ; Lane's case, 1 De Gex, J. & S. 504, 513, 
 per Ld. Westbury, C. 
 
 ' Doe V. Mason, 3 Camp. 7, per Lord Ellenborough, which was a decision 
 on 17 G. 3, c. 26, now repealed by 24 & 25 V., c. 101 ; Doe v. Bingham, 4 
 B. & A. 672, which was on 53 G. 3, c. 141. See Lend. & Brigh. Ry. Co. v. 
 Fairclough, 2 M. & Gr. 674. 
 
162 PBESUMPTIONS RESPECTING EXECUTION OF DEEDS. [PAET I. 
 
 party relying on the want of the enrolment must prove the nega- 
 tiye : " it is like the case of a proviso in an Act of Parliament, in 
 which it is a settled rule, that the party wishing to avail himself 
 of it, must bring himself within it."^ But no such presumption 
 will be made in favour of conveyances for charitable uses, even 
 after a long and undisturbed enjoyment.^ The distinction between 
 these cases appears to be, that the Annuity Acts do not prohibit 
 the conveyance of lands to secure the payment of annuities, but 
 the Mortmain Act^ renders void all gifts of realty to charitable 
 uses, unless by deed indented, executed, and enrolled, agreeably to 
 the provisions therein contained. 
 
 § 149. In like manner where the attestation of a deed has been § 128 
 in the usual form, and the signature of the party has been proved, 
 the jury have more than once been advised to presume a due 
 sealing and delivery, and that, too, in cases where the attesting 
 witness has denied all recollection of any other form having been 
 gone through beyond the mere signing.* Neither is it necessary, 
 in order to constitute a valid seaUng, that an impression should 
 be made with wax or with a wafer, but an impression made in ink 
 with a wooden block will sufBce ; ^ and even though no impression 
 appear on the parchment or paper, still, if the instrument be a 
 deed, and on proper stamps, and be stated in the attestation to 
 have been duly sealed and delivered, it will, in the absence of 
 evidence to the contrary, and especially if it be an ancient instru- 
 ment,^ be presumed to have been sealed.'' Moreover, when a 
 
 ' Per Bayley, J., in Doe v. Bingliain, 4 B. & A. 676. 
 
 2 Doe V. Waterton, 3 B. & A. 149 ; WrigM v. SmytMes, 10 East, 409. 
 
 3 9 G. 2, c. 36. 
 
 ^ Fasset v. Brown, Pea. E. 23 ; Grellier v. Neale, id. 146, per Ld. Kenyon ; 
 Talbot V. Hodgson, 7 Taunt. 251 ; Hall v. BainMdge, 12 Q. B. 699 ; Burling 
 V. Paterson, 9 0. & P. 570, per Patteson, J. ; Davidson v. Cooper, 11 M. & 
 W. 784, per Ld. Abinger. See, also. Doe v. Lewis, 7 C. & P. 574 ; Doe v. 
 Burdett, 4 A. & E. 1 ; 9 A. & E. 936 ; 6 M. & Gr. 386 ; 10 01. & Pin. 340, 
 S. C. ; Newton v. Eioketts, 8 H. of L. Gas. 262 ; and Burnbam v. Bennett, 
 1 De Gex & Sm. 513. This presumption, though formerly treated as one of 
 law, is now properly considered as one of fact, and the question is in. all cases 
 left to the jury. » E. v. St. Paul's, Covent Garden, 7 Q. B. 232. 
 
 « Crawford & Lindsay Peer., 2 H. of L. Cas. 534, 543, 550—552. 
 
 ' In re Sandilands, 6 Law Eep., C. P. 411 ; Sug. Pow. 232, cited by Ld. 
 Denman in E. v. St. Paul's, Covent Garden, 7 Q. B. 238. 
 
CHAP, v.] DEEDS FRAUDULENT UNDER 13 EL. C. 6. 163 
 
 deed is executed by a corporate body, tbe common seal need not 
 be affixed, but the corporation raay, if they think fit, adopt any 
 private seal for the occasion, and the jury may presume that the use 
 of the adopted seal was a corporate act, if the instrument purport 
 to be executed by the head and the subordinate members of the 
 corporation " under their seal." ^ The presumption in favour of 
 the due execution of instruments was carried to a great length in 
 the case of Cherry v. Heming.^ That was an action of covenant 
 brought by the assignor against the assignees of certain letters- 
 patent to recover the consideration money for the assignment, and 
 one of the defendants named Heming pleaded non est factum. At 
 the trial Heming produced the deed, which was signed and exe- 
 cuted by all the parties to it except himself ; but although a seal 
 had been placed for him in the usual way, his signature was not 
 attached, neither was there any attesting witness to his execution. 
 As, however, he had acted under the deed, and recognised it as a 
 valid instrument, the jury presumed, with the approbation of the 
 court, that he had duly executed it. 
 
 § 150. Although the courts are in general bound to presume § 128a 
 prima facie in favour of deeds, which appear to have been duly 
 executed, an exception to this rule is recognised, where sales 
 are sought to be set aside by the creditors of the vendor, as 
 fraudulent within the Stat. 13 El. c. 5. This excellent Act, — 
 made perpetual by 26 & 27 V., c. 125, — enacts in substance, that 
 all conveyances of lands or chattels, which are not made for a 
 valuable consideration and bona fide, shall be void as against any 
 person, including the Crown,^ whose claims on the original owner 
 of the property shall be thereby delayed or disturbed.* When- 
 ever, therefore, any transaction is sought to be invalidated by 
 virtue of this Act, it becomes necessary for the vendor to establish 
 the justice of his title, and to show afiirmatively, not only that 
 
 1 Jones V. Galway Town Commiss., 11 Ir. Law R. 435. 
 
 2 19 L. J., Ex. 63 ; 4 Ex. R. 633, S. C. 
 
 3 Shaw V. Bran, 1 Stark. E. 319 ; Morewood v. Wilkes, 6 C. & P. 144; Perkins 
 V. Bradley, 1 Hare, 219. See Whitaker v. Wisbey, 12 Com. B. 44. 
 
 * See Freeman v. Pope, 9 Law Rep., Eq. 206 ; 39 L. J., Ch. 148, S. 0. ; 5 
 Law Rep., Ch. Ap. 538, and 39 L. J., Ch. 689, S. C. ; Crossley v. Elworthy, 12 
 Law Rep., Eq. 158 ; Cornish v. Clark, 14 Law Rep., Eq. 184, per Ld. Eomilly ; 
 42 L. J., Ch. 14, S. C. ; Kent v. Riley, 14 Law Rep., Eq. 190, per Ld. Romilly. 
 
 ji 2 
 
164 PKESUMPTIONS RESPECTING DEEDS OF GIFT. [PART I. 
 
 the deed under which he claims was duly executed, but that it 
 was made in perfect good faith, and also for a valuable, as contra- 
 distinguished from a mere good, consideration.^ In determining 
 the question of bona fides, the jury will take into consideration 
 all the circumstances connected with the transfer, always bearing 
 in mind, that, if the conveyance is absolute, that is, if it passes 
 to the vendee an immediate right of possession, the fact of the 
 vendor being all6wed to continue as the apparent owner of the 
 property, must naturally raise a very strong presumption of 
 fraud.^ If, indeed, the conveyance or bill of sale is by way of 
 mortgage, and the mortgagee is not to take possession till a 
 default in payment of the mortgage money, then, as the nature of 
 the transaction does not caU for any change of possession, the 
 absence of such change will not of itself furnish any evidence of 
 collusion.^ 
 
 § 151. In deciding upon the validity or invalidity of deeds, the § 129 
 courts now act upon more enlightened principles than used to be 
 recognised at common law ; and whenever it is shown to them that 
 any person by donation derives a benefit under a deed to the pre- 
 judice of another person,* — and the more especially so, if any 
 confidential or fiduciary relation subsists between the parties, — 
 they so far presume against the validity of the instrument, as to 
 require some proof, varying in amount according to circumstances, 
 of the absence of anything approaching to imposition, over-reach- 
 ing, undue influence, or unconscionable advantage.' For example, 
 if a deed of gift, or other disposition of property, except a will,* be 
 made in favour of a solicitor by a client,'' of a medical attendant by 
 
 1 Twyne's case, 3 Coke, 80 ; 1 Smith, L. C. 1, S. C. 
 
 2 Martindale v. Booth, 3 B. & Ad. 498 ; 1 Smith, L. C. 11, 12 ; Lindon v. 
 Sharp, 6 M. & Gr. 898, per Tindal, C. J. 
 
 ' Martindale v. Booth, 3 B. & Ad. 498 ; 1 Smith, L. C. 13, 14. 
 
 "• Cooke V. Lamotte, 15 Beav. 234, per Romilly, M. R. See Coutts v. 
 Acworth, 38 L. J., Ch. 694 ; 8 Law Rep., Eq. 558, S. C. 
 
 * 1 Story, Eq. Jiir. §§ 308—323. See Baker v. Bradley, 25 L. J., Ch. 7. 
 
 " Parfitt V. Lawless, 41 L. J., Pr. & Mat. 68; 2 Law Eep., P. & D., 462, S. C. 
 See Ashwell v. Lomi, 2 Law Rep., P. & D. 477. 
 
 ' Qresley v. Mousley, 28 L. J., Ch. 620 ; 1 Giff. 450, S. C. ; 4 De Gex & J. 
 78, S. C. ; O'Brien v. Lewis, 32 L. J., Cli. 569 ; 4 GifF. 221, S. C. ; Gardener v. 
 Ennor, 35 Beav. 549. 
 
CHAP, v.] PEESUMPTIONS BESPSCTING DEEDS OF GIFT. 165 
 
 a patient, of a parson by one of his congregation,^ of a " spiritual 
 medium " by one of his dupes,^ of a trustee by a beneficiary,^ of 
 an executor by a legatee,* of a guardian by a ward, of a parent by a 
 child,' of a husband by a wife, of an agent by a principal,^ or of a 
 shrewd man of business by an infirm ignorant old woman,'' the 
 court will regard the matter with jealous suspicion, and will either 
 set aside the instrument as conclusively void,^ or will throw upon the 
 person benefited the burthen of establishing beyond all reasonable 
 doubt the perfect fairness and honesty of the entire transaction.^ 
 
 § 152. A grotesque attempt has been made in Ireland to extend § 129 
 this salutary doctrine to a case, which assuredly its framers never 
 contemplated. A woman, while living in adultery with a married 
 man, had in the ardour of her afi'ection assigned some of her 
 property to secure a debt which was owing by her paramour. When 
 her passion cooled, her generosity seemed to have cooled also ; and 
 after the lapse of a short period she had the hardihood to apply to 
 the Court of Chancery to set aside her assignment on the ground 
 of undue influence. Her prayer was of course rejected, the court 
 holding that the doctrine on which she relied for relief was only 
 
 ' Nottidge V. Prince, 2 Giff. 246 ; Huguenin v. Baseley, 14 Ves. 273. 
 
 2 Lyon V. Home, 37 L. J., Ch. 674, per Giffard, V.-C. ; 6 Law Rep., Eq. 655, 
 S. C. 3 Luff ^_ Lojei^ 34 Bgav. 220. 
 
 ■• Gray v. Warner, 42 L. J., Oh. 556, per Wickens, V.-C. 
 
 s Wright V. Vanderplank, 2 Kay & J. 1 ; 25 L. J., Ch. 753, S. C. ; 8 De 
 Gex, M. & G. 133, S. C. ; Hartopp v. Hartopp, 21 Beav. 259 ; Dimsdale v. Dimsdale, 
 25 L. J., eh. 806 ; Bury v. Oppenheim, 26 Beav. 594 ; Davies v. Davies, 2 New 
 R. 384, per Stuart, V.-C. ; 4 Giff. 417, S. C. ; Potts v. Surr, 34 Beav. 543 ; 
 Turner v. Collins, 7 Law Rep., Ch. Ap. 329. 
 
 8 King V. Anderson, I. R. 8 Eq. 147. 
 
 ^ Baker v. Monk, 33 Beav. 419 ; 4 De Gex, J. & S. 388, S. C, by Lds.. Js. ; 
 Summers v. Griffiths, 35 Beav. 27. 
 
 8 Tomson v. Judge, 3 Drew. 306. This was the case of a deed of gift by a 
 client to his solicitor. 
 
 » 1 Story, Eq. Jur. §§. 308—323 ; Hunter v. Atkins, 3 Myl. & K. 113 ; 
 Nedby v. Nedby, 21 L. J., Ch. 446 ; Hoghton v. HoghtoB, 15 Beav. 278 ; 
 Grosvenor v. Sherratt, 28 Beav. 659 ; Savery v. King, 5 H. of L. Cas. 627, 
 655, 656 ; Espey v. Lake, 10 Hare, 260 ; BUlage v. Southee, 9 Hare, 534. See 
 Price V. Price, 1 De Gex, M. & G. 308 ; Toker v. Toker, 31 Beav. 629 ; 3 De 
 Gex, J. & S. 487, S. C. ; Phillips v. Mullings, 7 Law Rep., Ch. Ap. 244 ; King 
 V. Anderson, I. R. 8 Eq. 625, per Ct. of App., reversing S. C. id. 150. 
 
166 PBESUMPTIONS IN DEALING WITH KEVERSIONS. [PART I. 
 
 applicable when some lawful relation had been contracted between 
 the parties.^ 
 
 § 153. The old Court of Chancery was wont to look with § 129a 
 peculiar, if not with discreet, favour on heirs apparent and other 
 expectant heirs, when they entered into negotiations which related 
 to their expectancies.^ Every person, therefore, who dealt with an 
 expectant heir for his reversion was, in equity at least, prima facie 
 presumed to be a knave ; and if the transaction were subsequently 
 disputed, the burthen of proof would he upon him to establish its 
 entire fairness.^ The soundness of this doctrine was at length 
 questioned by some of our prominent lawyers,* and at their 
 instance an Act was passed in December, 1867, which enacts, 
 that " no purchase made bona fide, and without fraud or unfair 
 dealing, of any reversionary interest in real or personal estate, 
 shall hereafter be opened or set aside merely on the ground of 
 under-value." ^ It will be noted that this enactment is carefully 
 limited to purchases " made bona fide and without fraud or unfair 
 dealing," and it not only leaves untouched the law which governs 
 unconscionable bargains, but it allows under-value to be still 
 regarded by the court as a material element in cases where fraud is 
 charged.^ 
 
 § 154. Another important presumption recognised in equity is, § 129b 
 that a tenant for life, or other person having a partial interest in 
 settled estates, who pays off an incumbrance upon them, intends, 
 prima facie, to keep alive the charge against the inheritance for 
 
 1 Hargreave v. Everard, 6 Ir. Eq. R., N. S. 278. 
 
 2 Bromley v. Smith, 26 Beav. 644, 665 ; Ld. Portmore v. Taylor, 4 Sim. 
 182 ; Davies v. D. of Marlborough, 2 Swanst. 108 ; Sharp v. Leach, 31 Beav. 
 491,; Croft v. Graham, 2 De Gex, J. & S. 155 ; Perfect v. Lane, 3 De Gex 
 F. & J. 369 ; Benyon v. Fitch, 35 Beav. 570. 
 
 ^ See cases cited in last note. 
 
 * See Webster v. Cook, 2 Law Rep., Ch. Ap. 542, per Ld. Chelmsford, Ch, 
 36 L. J., Ch. 753, S. C. 
 
 " 31 v., c. 4, § 1. See Miller v. Cook, 10 Law Rep., Eq. 641 ; 40 L. J., Ch, 
 11, S. C. ; Tyler v. Yates, 11 Law Rep., Eq. 265 ; 6 Law Rep., Ch. Ap. 665 
 & 40 L. J., Ch, 768, S. C, per Ld. Hatherley, Ch. ; Judd v. Green. 45 L. J 
 Ch. 108. 
 
 " Ld. Aylesford v. Morris, 8 Law Rep., Ch. Ap. 490, per Ld. Sclborne, C. 
 42 L. J., Ch. 546, 548, S. C. ; Beynon v. Cook, 10 Law Rep., Ch. Ap. 389. 
 
CHAP. V.J PAYING OFF INCUMBRANCES — CHAEITABLE GEANTS. 167 
 
 his own benefit.! This presumption, however, has, on technical 
 rather than substantial grounds, been held inapplicable to a case 
 where a tenant for life had paid off the bond debts of the settlor.^ 
 Neither does it extend to the case of a charge bearing interest, 
 where, — ^the rents and profits of the estate having been insufficient 
 to meet the interest, — the tenant for Ufe has paid the balance of it 
 out of his own pocket, without having warned the remainderman 
 of his intention to charge the excess of his payments on the 
 inheritance. Here equity recognises a counter-presumption, and 
 conclusively infers, as against the personal representatives of the 
 tenant for life, either that the rents and profits were sufficient 
 to keep down the interest, or that the tenant for life meant to 
 waive his right to bring any charge upon the inheritance for the 
 deficiency.^ 
 
 § 155. In dealing with charitable institutions, and in inter- §129 
 preting charitable grants, the courts also recognise certain definite 
 presumptions. Thus, if the charity were founded to support a 
 religious establishment, or to promote religious education, and the 
 intentions of the founder be not clearly expressed, the prima facie 
 presumption is, first, that he intended to support an establishment 
 belonging to some particular form of religion, or to promote the 
 teaching of certain particular doctrine ; next, that the form of 
 religion or doctrine contemplated was that which he himself had 
 professed ; and lastly, if no evidence be adduced of his enter- 
 taining peculiar religious views, that the established religion of 
 the country was the one meant to be supported. If, however, the 
 charity were founded for purposes of mere secular education, or if 
 it were one of a purely eleemosynary character, the court, in the 
 absence of any expressed intention to the contrary, will presume 
 that the instruction in the one case was intended to be open at 
 least to all denominations of Christians, and that the bounty in 
 the other might be shared by all persons in distress, whatever 
 
 1 Morley v. Morley, and Harland w. Morley, 25 L. J., Cli. 1 ; 5 De Gex, M. 
 & G. 610, S. C. 
 
 2 Id. See Roddam v. Morley, 25 L. J., Ch. 329 ; 26 L. J., Ch. 438, S. C. 
 
 3 Ld. Kensington v. Bouverie, 7 H. of L. Cas. 557. 
 
168 JOINT TENANCY VOLTJNTAET SETTLEMENTS. [PAET I. 
 
 erroneous opinions on the subject of worship they might chance to 
 entertain.! 
 
 § 156. All courts now hold, contrary to what was once considered 
 to be the law, that an estate for life without impeachment of waste 
 does not confer upon the tenant for life any legal right to commit 
 " equitable waste," unless an intention to confer such right ex- 
 pressly appears in the instrument creating the estate.^ 
 
 § 157. The presumptions, or, rather, the rules of construction § 129d 
 recognised in equity with respect to joint tenancy are sufficiently 
 singular. Thus, if two persons jointly advance money on mort- 
 gage, a mere tenancy in common will be created, though the 
 property be conveyed to them as joint tenants, because in this 
 case the law presumes that men will not willingly speculate with 
 money which they lend.^ But, on the other hand, if two persons 
 jointly advance money as purchasers, and the sums paid by each 
 be equal, a joint-tenancy will be established, because here it is 
 supposed that men will readily gamble as to survivorship with 
 respect to property which they buy.* The reasoning, which draws 
 a distinction between these two cases, has been denounced by an 
 able judge as " not very comprehensible ; " ^ anid, indeed, it savours 
 of the legal subtlety of a bygone age. Still, the law on this point 
 seems to be settled, though the courts have so far yielded to 
 common sense as to hold, that, if two persons make a purchase, 
 and one of them advances more of the purchase money than the 
 other, there shall be no survivorship, notwithstanding that the 
 words " equally to be divided " be omitted from the deed.* 
 
 § 158. As voluntary settlements are usually mere matters of 
 bounty, ordinary prudence suggests that the settlor should reserve 
 to himself the right of making fresh arrangements ; and this 
 doctrine has, of late years, been so far recognised by Courts of 
 
 ' Att.-Gen. v. Calvert, 23 Beav. 248, per Eomilly, M. K., in an elaborate 
 judgment. 2 36 & 37 y., c. 66, § 25, subs. 3. 
 
 3 Petty V. Styward, 1 Eq. Cas. Ab. 290. 
 ■• Eigden v. VallLer, 2 Ves. Sen. 252 ; 3 Atk. 731, 8. C. 
 * Harrison v. Barton, 30 L. J., Ch. 215, per Wood, V.-C. 
 " Rigden v. Vallier, 2 Ves. Sen. 252 ; 3 Atk. 731, S. C. 
 
CHAP, v.] APPOKTIOKMENT OF EENTS EXECUTION OF WILLS. 169 
 
 Equity that, although they will not prima facie presume the 
 existence of some mistake, if such a settlement is found not to 
 contain a power of revocation, they will certainly take that circum- 
 stance into account, and consider it as entitled to some weight, in 
 deciding on the validity of the instrument.^ All parties, therefore, 
 who rely upon an irrevocable voluntary settlement, ought to be 
 prepared to prove, that the settlor was properly advised when he 
 executed it, that he thoroughly understood the effect of omitting 
 the power, and that he intended to omit it.^ 
 
 § 159. In the absence of any express stipulation to the con- § 129b 
 trary the law now presumes, that " all rents, annuities," — which 
 term includes' salaries and pensions,^ — " dividends, and other 
 periodical payments, in the nature of income, whether reserved 
 or made payable under an instrument in writing or otherwise," 
 accrue from day to day, like interest on money lent, and are 
 apportionable in respect of time accordingly.* 
 
 § 160. With respect to the execution, alteration, revocation and § 1^0 
 construction of wills, the courts recognise several presumptions, 
 which it will be expedient to mention in this place. ^ First, it is 
 a general rule that, on proof of the signature of the deceased, he 
 will be presumed to have known and approved of the contents 
 and effect of the instrument he has signed ; ® such knowledge and 
 
 1 HaR V. Hall, 42 L. J., Ch. 444 ; 8 Law Eep., Ch. Ap. 430, S. C, overruling 
 the decree of Wiokens, V.-C, 14 Law Eep., Bq. 365 ; Phillips v. Mnllings, 7 
 Law Hep., Ch. Ap. 244. '' Id. 
 
 3 Treacy v. Corcoran, I. E. 8 C. L. 40 ; 33 & 34 Vict., c. 35, § 5. 
 
 ^ 33 & 34 v., c. 35, §§ 2, 7. See, also, 4 & 5 W. 4, c. 22 ; and 23 & 24 V., 
 c. 154, § 49, Ir. See Jones v. Ogle, 41 L. J., Ch. 633, per Ld. Eomilly; 8 Law 
 Eep., Ch. Ap. 192, S. C. ; and 42 L. J., Ch. 335, per Ld. Selhome. See, also, 
 Capron v. Capron, 17 Law Eep., Eq. 288 ; 43 L. J., Ch. 677, S. C. ; re, Cline'a 
 Estate, 18 Law Eep., Eq. 213 ; PoUoci v. Pollock, 18 Law Eep., Eq. 329 ; 44 
 L. J., Ch. 168, S. C. ; Hasluok v. Pedley, 44 L. J., Ch. 143 ; 19 Law Eep., Eq. 
 271, S. C. ; Daly v. Att.-Gen., I. E. 8 Eq. 595. 
 
 * For other presumptions respecting wills made prior to 1st Jan., 1838, see 
 the former editions of this Work, §§ 131 — 134. 
 
 ^ Billinghurst v. Viokers, 1 Phillim. R. 191 ; Fawcett v. Jones, 3 Phillim. 
 R. 476 ; Guardhouse v. Blackburn, 1 Law Rep., P. & D. 109 ; 35 L. J., Pr. 
 & Mat. 116, S. C. ; Wheeler v. Alderson, 3 Hagg. Ec. E. 587 ; Browning v. 
 Budd, 6 Moo. P. C. R. 430. 
 
170 PRESUMPTIONS EESPBOTING EXECUTION OF WILLS. [PAET I. 
 
 approval being essential to the validity of the will.^ This pre- 
 sumption, however, is liable to be rebutted by showing the exist- 
 ence of any suspicious circumstances : ^ and therefore, if the 
 testator, from want of education, or from bodily infirmity, was 
 unable to read,' or if his capacity at the time of executing the 
 instrument is a matter of doubt ; * or if the party who is materially 
 benefited by the will has prepared it, or conducted its execution, 
 or has been in a position calculated to exercise undue influence ; ^ 
 or if the instrument itself is not consonant to the testator's 
 natural affections and moral duties ; ^ — a more rigid investigation 
 will be enforced, and probate will in general not be granted, unless 
 the court be satisfied by additional evidence, that the paper pro- 
 pounded does really express the true will of the deceased.'' In 
 cases of extraordinary suspicion, it will of course be highly expe- 
 dient to prove, either that instructions were given by the deceased 
 corresponding with the actual provisions of the will, or that the 
 instrument was, at the time of execution, read to or by the testator, 
 or that he had expressed some subsequent knowledge and approval 
 of its dispositions ; but this precise species of evidence is not 
 absolutely required,* and it will be sufficient if, by any means of 
 
 1 Hastilow V. Stobie, 35 L. J., Pr. & Mat. 18 ; 1 Law Eep., P. & D. 64, 
 S. C, per Wilde, J. 0., ovemiliiig a dictum of Cresswell, J. 0., in Middlehuist 
 v. Johnson, 30 L. J., Pr. & Mat. 14. See Cleare v. Cleare, 1 Law Rep., P. & D. 
 655 ; 38 L. J., Pr. & Mat. 81, S. C. 
 
 2 Von Stentz v. Comyn, 12 Ir. Eq. K. 622, 642—645, per Brady, Ch. 
 
 ^ Barton v. Kobins, 3 PMllim. B. 455, n. 6 ; In re Duane, 31 L. J., Pr. 
 & Mat. 173 ; 2 Swab. & Trist. 590, S. C. ; In re Wray, I. E., 10 Eq. 266 ; 
 but see Longcbamp v. Fish, 2 N. E. 415. 
 
 ■• 1 Phillini. E. 193 ; Ingram v. Wyatt, 1 Hagg. Ec. E. 384; Dodger. Meech, 
 id. 620 ; Dufaur v. Croft, 3 Moo. P. C. E. 147. 
 
 5 Mitchell V. Thomas, 6 Moo. P. C. E. 137 ; Scouler v. Plowright, 10 Moo. 
 P. C. R. 440, 4A4r— 446 ; Eaworth v. Marriott, 1 Myl. & K. 643 ; Greville v. 
 Tylee, 7 Moo. P. C. E. 320 ; Paske v. Ollat, 2 Phillim. R. 324 ; Zacharias 
 V. Collis, 3 id. 202 ; Wheeler v. Alderson, 3 Hagg. Ec. R. 587 ; Billinn-hurst 
 V. Vickers, 1 PhiUim. R. 187 ; Fulton v. Andrew,, 7 Law Rep,, H. L. 461, per 
 Ld. Cairns, Ch. ; 44 L. J., Pr. & Mat. 23, S. C. ; Burling v. Loveland, 2 Curt. 
 226, 227 ; Chambers v. Wood, 2 Ec. & Mar. Cas. 485, per Ld. Cottenham ; 
 Paine d. Plall, 18 Ves. 475 ; O'Connel v. Butler, Milw. Ec. Ir. R. 102, 103 ; 
 Gore V. Gahagan, id. 220. 
 
 " See Prinsep & E. India Co. v. Dyce Sombre, 10 Moo. P. C. R. 285. 
 
 ? Browning v. Budd, 6 Moo. P. C. R. 430 ; Fulton v. Andrew, 7 Law Rep 
 H. L. 448 ; 44 L. J., Pr. & Mat. 17, S. C. 
 
CHAP, v.] PRESUMPTION EESPECTING ATTESTATIONS TO WILLS. 171 
 
 proof, a knowledge and approval of the contents of the will can be 
 brought home to the deceased.^ 
 
 § 161. Secondly, where proof can be furnished that, prior to § 131 
 the execution of a will by a competent testator, it was either read 
 over to him, or otherwise brought specially to his notice, the 
 Probate Division of the High Court in the absence of fraud, will 
 not only infer, prima facie, that he approved of the contents, but 
 will recognise a conclusive presumption to that effect. No matter 
 what evidence may be forthcoming to establish a case of obvious 
 error, and to show that some passage has crept into the instrument 
 by the sheer mistake of the draughtsman, the judge will turn a 
 deaf ear to all such testimony, and rejoicing in the safe inflexibi- 
 lity of a Procrustean rule, will perpetrate the grossest injustice 
 under the protection of law.^ 
 
 § 162. Thirdly, when several sheets of paper, constituting a § 132 
 connected disposal of property, are found together, the last only 
 being duly signed and attested as a will, the court, in the absence 
 of direct proof, and even in spite of partial inconsistencies in some 
 of the provisions, will presume that each of the sheets so found 
 formed a part of the will at the time of its execution.^ 
 
 § 163. Fowthly, in favour of attestations to wills the presump- § 133 
 tion of law is, that if the testator might have seen, he did see, 
 the witnesses subscribe their names ; * and the fact of his having 
 been in the same room with them is prima facie evidence of their 
 
 > Barry v. Butlin, 1 Curt. 638—641 ; 2 Moo. P. C. E. 482—485, S. C. ; 
 Mitchell V. Thomas, 6 Moo. P. C. E. 137. See furtlier on this subject, 1 Will, 
 on Ex. 97, 311, 312 ; and Atter v. Atkinson, 1 Law Eep., P. & D. 665. 
 
 2 Guardhouse v. Blackburn, 1 Law Eep., P. & D. 109, per Ld. Penzance ; 35 
 L. J., Pr. & Mat. 116, S. C. ; Harter v. Barter, 42 L. J., Pr. & Mat. 1, per Sir J. 
 Ilannen ; 3 Law Eep,, P. & D. 11, S. C. Sed qu., for the judicial reasoning in 
 these cases is not so logical as might fairly be expected. See In re Oswald 43 
 L. J., Pr. & Mat. 24 ; 3 Law Eep., P. & D. 162, S. C. 
 
 3 Marsh v. Marsh, 1 Swab. & Trist. 528 ; Gregory v. Queen's Proctor 4 Eo. 
 & Mar. Gas. 620 ; Eees ^■. Eees, 3 Law Eep., P. & D. 84. See, also. In re 
 Cattrall, 3 Swab. & Trist. 419. 
 
 * Todd V. Ld. Winohelsea, 2 C. & P. 488 ; M. & M. 12, S. C, per Abbott, 
 C. J. ; Doe v. Manifold, 1 M. & Sel. 294. See post, § 1054. 
 
172 PEESUMPTIONS BESPECTING ALTERATIONS IN WILLS. [PABT I. 
 
 attestation in his presence, as an attestation not made in the same 
 room is prima facie not made in his presence.^ 
 
 § 164. Fifthly, in the absence of any evidence to tfie contrary, § 134 
 the law presumes that all alterations, interlineations, or erasures, 
 which may appear on the face of a will, were made after its 
 execution,^ and even after the execution of any codicils thereto ; * 
 and consequently the Probate Division of the High Court will, in 
 a case of unexplained alteration, interlineation,* or erasure, grant 
 probate of the will in its original form.' This presumption, how- 
 ever, — which is contrary to that which prevails with respect to 
 deeds,* resolutions, and other official documents,'' — may be rebutted 
 by slight affirmative evidence,^ and it will not apply to the filling up 
 of blanks; and therefore, where a testator gave instructions that 
 his will should be prepared with blanks for the amount of the 
 legacies, and the will was found after his death regularly executed, 
 with the amounts filled up in his own handwriting, the court pre- 
 sumed, in the absence of all evidence on the subject, that the 
 blanks were filled up before the will was signed, for otherwise the 
 execution would have been a mere idle ceremony.^ 
 
 1 Neil v. Neil, 1 Leigh, R. 6, 10—21. 
 
 2 Simmonds v. Rudall, 1 Sim. N. S. 115, 136, 137 ; Doe v. Catomore, 16 
 Q. B. 745 ; Doe v. Palmer, 16 Q. B. 747 ; In re Stone James, 1 Swab. & Trist. 
 238 ; Williams v. Ashton, 1 Jolms. & Hem. 115. 
 
 3 Lnshington v. Onslow, 6 Eo. & Mar. Cas. 183, 188, per Sir H. Fust. See 
 also Christmas v. Whinyates, 32 L. J., Pr. & Mat. 73 ; 3 Swab. & Trist. 81, S. C. 
 
 " In re White, 30 L. J., Pr. & Mat. 55. But see In re Cadge, 37 L. J., Pr. 
 & Mat. 15 ; 1 Law Rep., P. & D. 543, S. C. 
 
 * Gann v. Gregory, 22 L. J., Ch. 1059, per Stuart, V.-C, ; Cooper v. Bociett, 
 4 Moo. P. C. B. 419 ; 4 Ec. & Mar. Cas. 685, S. C. ; Greville v. Tylee, 7 Moo. 
 P. C. R. 320, 328 ; In re Hardy, 30 L. J., Pr. & Mat. 142. See Rules for- Reg. 
 of Ct. of Prob. in non-contentious business, Nos. 8, 9, 10. 
 
 5 Simmonds v. Rudall, 1 Sim. N. S. 115, 136, 137 ; Doe v. Catomore, 16 
 Q. B. 745 ; 20 L. J., Q. B. 728, S. C. 
 
 ' Steevens's Hospital v. Dyas, 15 Ir. Eq. R., N. S. 405, 420. 
 
 » See Dench v. Dench, 46 L. J., P. D. & A. 13 ; L. R., 2 P. D. 60, S. C. ; In 
 re Duffy, I. R., 5 Eq. 506 ; and In re Sykes, .42 L. J., Pr. & Mat. 17 ; 3 Law 
 Rep., P. & D. 26, S. C. ; Moore v. Moore, I. R., 6 Eq. 166. The presumption, 
 moreover, has been altogether set at nought in the case of a will made by 
 an .officer in actual military service, In re Farquarson v. Tweedale, 44 L. J., Pr. 
 
 6 Mat. 35. Sed qu. 
 
 9 Birch V. Birch, 6 Ec. & Mar. Cas. 581, per Sir H. Fust ; GrevUl'e v, Tylee, 
 
 7 Moo. P. C. R. 327. 
 
CHAP, v.] PEESUMPTIONS RESPECTING EEVOCATION OP WILLS. 173 
 
 § 165. Sixthly, if a will, traced to the possession of the testator, § 135 
 and last seen in his custody, be not forthcoming on his death, the. 
 law, under ordinary circumstances, presumes that it has been 
 destroyed by himself, animo cancellandi ; and this presumption, 
 which is obviously founded on good sense, must prevail, unless 
 there be sufScient evidence to rebut it.^ The declarations of the 
 testator, however, whether written or oral, and whether made before 
 or at or after ^ the execution of the instrument, furnish, in cases 
 of this nature, cogent proof of his intentions.^ In the event, too, 
 of the testator having become insane after the will was made, the 
 burthen of proving that it was destroyed by him while he was of 
 sound mind will lie upon the party who sets up the revocation.* 
 Again, the finding of a will among the testator's papers, in which 
 the signature has been cut out, raises a presumption that the 
 mutilation was effected intentionally by the testator himself ; and 
 in such a case the will cannot be regarded as revived, though the 
 signature has been again attached by gum to its original place, and 
 the document, when discovered, was in that condition.^ The revo- 
 cation of a will by the testator was at one time considered to raise 
 a prima facie, though by no means a conclusive, presumption that 
 the testator intended to revoke every codicil to it,^ but this pre- 
 
 1 Sugden v. Ld. St. Leonards, 45 L. J., P. D. & A. 1 ; S. C. id. 49, in Ct. of App. ; 
 L. E., 1 P. D. 154 ; Welcli v. Phillips, 1 Moo. P. C. R. 299, 302, per Parke, B. ; Pinch 
 V. Finch, 36 L. J.,Pr. & Mat. 78 ; 1 Law Eep., P. & D. 371, S. G. ; Johnson v. Lyford, 
 37 L. J., Pr. & Mat. 65 ; 1 Law Kep., P. & D. 546, S. C. ; Podmore v. Whatton, 
 3 Swab. & Trist. 449 ; 33 L. J., Pr. & Mat. 143, S. C. ; Dickinson v. Stidolph, 
 11 Com. B., N. S. 341, 357 ; Brown v. Brown, 27 L. J., Q. B. 173 ; 8 E. & B. 
 876, S. 0. ; In re Brown, 27 L. J., Pr. & Mat. 20 ; 1 Swab. & Trist. 32, S. C. ; 
 "Wood V. Wood, 1 Law Rep., P. & D. 309 ; Cutto v. Gilbert, 9 Moo. P. C. E. 
 143, per Dr. Lushington. 
 
 2 Sugden ii. Ld. St. Leonards, L. E., 1 P. D. 154 ; 45 L. J., P. D. & A. 1 & 
 49, S. C. ; overruling Quick v. Quick, 33 L. J., Pr. & Mat. 146 ; 2 Swab. & Trist. 
 442, S. C. 
 
 " Whiteley ii. King, 17 Com. B., N. S. 756 ; Keen v. Keen, 42 L. J., Pr. & 
 Mat. 61 ; 3 Law Rep., P. & D., 105, S. C. ; Sugden v. Ld. St. Leonards, L. E., 1 
 P. D. 154 ; 45 L. J., P. D. & A. 1, & 49, S. C. See, also, Saunders v. Saunders, 6 
 Ec. & Mar. Cas. 518 ; Williams v. Jones, 7 id. 106 ; Patten v. Poulton, 1 Swab. 
 & Trist. 55 ; Eckersley v. Piatt, 1 Law Eep. P. & D. 281. 
 
 ^ Sprigge V. Sprigge, 38 L. J., Pr. & Mat. 4 ; 1 Law Rep., P. & D. 608, S. C. 
 
 5 Bell V. FothergiU, 2 Law Eep., P. & D. 148. 
 
 « Grimwood v. Cozens, 2 Swab. & Trist. 364 ; In re Dutton, 32 L. J., Pr. & 
 Mat. 137 ; 3 Swab. & Trist. 66, S. C. ; Medlycott v. Assheton, 2 Add. 229 ; 
 
174 PRESUMPTIONS RESPECTING WILLS. [PART I. 
 
 sumption no longer prevails ; and a codicil, however dependent it 
 .may be on the will, can now only be revoked in one of the methods 
 prescribed by the Wills Act.'- 
 
 § 166. Seventhly, in the absence of any distinct intimation to § 
 the contrary, the law presumes that every testator considers his 
 estate sufficient to answer the purposes to which he has devoted 
 it by his will ; and consequently, in the event of any deficiency 
 arising in the assets, all annuities and legacies will, prima facie, 
 be held to abate rateably. No doubt, this rule, like most others 
 in the law, is open to certain exceptions ; but in all cases the onus 
 lies upon those who claim priority to furnish conclusive proof, by 
 referring to the language employed, that the testator intended 
 that the bequests should not stand on an equal footing.^ Again, 
 property specifically bequeathed or devised is prima facie pre- 
 sumed to have been intended by the testator to pass to the legatee 
 or devisee in its entirety ; and this presumption will not be 
 rebutted by a codicil, charging certain pecuniary legacies on all 
 the testator's estates, both real and personal.^ If, too, an annuity 
 be bequeathed by will for an indefinite period, the law will pre- 
 sume, in the first instance, that it was intended to be given for the 
 life of the annuitant ; but this presumption is liable to be rebutted 
 by proof, that the testator has used words which indicate an inten- 
 tion that the annuity should be granted, either in perpetuity, or 
 for a fixed number of years.* 
 
 Clogstown V. Walcott, 5 Eo. & Mar. Cas. 523. But see, In re EUice, 33 L. J., 
 Pr. & Mat. 27 ; Black v. Jobling, 1 Law Rep., P. & D. 685 ; 38 L. J., Pr. & 
 Mat. 74, S. C. 
 
 • Re Turner, 2 Law Rep., P. & D. 403, per Ld. Penzance. 
 
 2 Miller v. Huddlestone, 3 M. & Gord. 513, 523, 524, per Ld. Truro ; Brown 
 1). Brown, 1 Keen, 275, 277 ; Thwaites v. Foreman, 1 Coll. 409, 414 ; Ld. Dun- 
 boyne v. Brander, 18 Beav. 313. 
 
 ^ Conron v. Conron, 7 H. of L. Cas. 168; Campbell v. M'Conagliey, I. R., 6 
 Eq. 20. 
 
 " Yates V. Maddan, 3 M. & Gord. 532 ; Lett v. Randall, 2 Sm. & Giff. 83 ; 2 
 De Gex, F. & J. 388, S. C. ; Stokes v. Heron, 12 CI. & Fin. 161 ; Potter v. 
 Baker, 13 Beav. 273 ; Blewitt v. Roberts, Cr. & Ph. 274 ; Hill v. Potts, 31 L. 
 J., Ch. 380, per Wood, V.-C. ; S. C. nom. Hill v. Ratley, 2 Johns. & Hem. 634 ; 
 SiiUivan v. Galbraith, I. R., 4 Eq. 582. 
 
 136 
 
CHAP, v.] LEOACY TO EXECUTOBS EMBLEMENTS. 175 
 
 § 167. When a legacy is bequeathed to a person, who is also § 136a 
 named in the will as an executor, the law presumes, prima facie, 
 that it was given to him in that character ; and consequently, if 
 he declines to accept the office, he must relinquish all claim to the 
 legacy, unless he can show from the language employed that the 
 hequest was made to him independently of his character of execu- 
 tor, and solely as a token of personal regard.^ When, under 
 the terms of a will, the consent of executors or trustees is rendered 
 necessary to the jvalidity of any act, the law presumes, in the 
 absence of any express direction on the subject, that this dis- 
 cretionary power should be exercised by those only who undertake 
 the duties of the office.^ An executor who has renounced, or a 
 trustee who has disclaimed, has obviously no right to interfere in 
 the matter ; and even without any formal renunciation or disclaimer 
 an executor or trustee, who simply declines to accept the office or to 
 act in the trusts, will thereby relieve the parties interested from 
 the responsibility of obtaining his consent.^ On the subject 
 of emblements, — which is the old technical term, emhlawnce de 
 blet, for the profits of the growing crop, — the courts recognise a 
 very capricious presumption ; * for although the personal repre- 
 sentatives of a man dying seised in fee of land are entitled to 
 the emblements in preference to the heir, the law presumes, in the 
 event of a devise of the land, that the testator intended them to 
 pass to the devisee.^ This presumption may of course be rebutted 
 by a specific bequest of the growing crops to another party ; but 
 the title of the devisee to them will not be ousted by a mere dis- 
 position of all the testator's personal estate.^ 
 
 § 168. When the word "children" is used in a will, the law 
 presumes, prima facie, that the term is limited to legitimate 
 
 1 Staokpole v. Howell, 13 Vee. 421 ; In re Reeve's Trusts, L. E., 4 Ch. D. 841, 
 per Jessel, M. E. ; Harrison v. Eowley, 4 Ves. 216 ; Eeed v. Devaynes, 2 Cox, 
 Ch. E. 285 ; 3 Br. C. C. 95, S. C. ; Dix v. Eeed, 1 Sim. & St. 239 ; Piggott v. 
 Green, 6 Sim. 72 ; Jewis v. Lawrence, 8 Law Eep., Eq. 345. ; In re Banbury's 
 Trusts, I. E., 10 Eq. 408 ; In re Eeeve's Trusts, 46 L. J., Ch. 412, per Jessel, 
 M. E. ; L. E., 4 Ch. D. 841, S. C. 
 
 2 White v. M'Dermott, I. E. 7 C. L. 1. 3 i^_ 
 * West V. Moore, 8 East, 343, per Ld. Ellenborough. 
 
 5 Cooper V. Woolfatt, 26 L. J., Ex. 310. « Id. 
 
176 PEESUMPTIONS RESPECTING DATE OP DOCUMENTS. [PART I. 
 
 children ; and so strong is this presumption that it will he regarded 
 as conclusive, unless there be something in the will itself to show 
 clearly an intention on the part of the testator to provide for 
 natural children.^ In this last event, such a child, though en 
 ventre sa mere at the date of the will, has been held to be included 
 in the term.^ Again, when a testator uses the word " family " he 
 will be presumed, prima facie, to mean the children, if any, of the 
 person whose family is spoken of, and there must be a special 
 context to give the word a different meaning.^ 
 
 § 169. It may be laid down as a general prima facie presump- § 137 
 tion, that all documents were made on the day they bear date* 
 This presumption prevails, whether the document be a modern or 
 ancient deed,' a bill of exchange or promissory note,^ an account,'' 
 or even a letter ; ^ and this, too, whether it be written by a party 
 to the suit or not.^ The rule, however, has of late been very 
 reluctantly recognised, at least by the Court of Exchequer,^" and 
 it is certainly subject to two exceptions?^ The first is, where, in 
 order to prove a petitioning creditor's debt, an instrument is put 
 in signed by the bankrupt, Vhich bears date before the act of 
 bankruptcy. In these cases, as the efi'ect of a proceeding in 
 bankruptcy is retrospective,^^ and its object is to invaHdate all 
 transactions which have taken place between the act of bank- 
 
 ' Dorin V. Doxin, 7 Law Eep., H. L. 568"; 45 L. J., Ch. 652, S. C, per Dom. 
 Proc. See Laker v. Hordern, L. R., 1 Ch. D. 644. 
 
 2 Crook V. Hill, L. R., 3 Ch. D. 773, per Hall, V.-C. 
 
 ' Pigg V. Clarke, 45 L. J., Ch. 849, per Jessel, M. R. 
 
 ■• Malpas i>. Clements, 19 L. J., Q. B. 435 ; Potez v. Glossop, 2 Ex. R. 191 ■ 
 Morgan v. Whitmore, 6 Ex. R. 716. 
 
 = Anderson v. Weston, 6 Ring. N. C. 300, 301 ; Daviea v. Lowndes, 7 Scott 
 N. S. 214 ; 6 M. & Gr. 527, 528, S. C. ; Doe v. StillweU, 8 A. & E. 645 ; Smith 
 V. Battens, 1 M. & Rob. 341. 
 
 « Anderson v. Weston, 6 Ring. N. C. 296 ; 8 Scott, 583, S. C. ; Smith v. 
 Battens, 1 M. & Rob. 341. ' Sinclair v. Baggaley, 4 M. & W. 312. 
 
 8 Potez V. Glossop, 2 Ex. R. 191 ; Lewis v. Simpson, and Angell v. Worsley, id. 
 196, n. ; Huntu. Massey, 5 B. & Ad. 902 ; Goodtitle v. Milburn, 2 M. & W. 853. 
 
 ' Potez V. Glossop, 2 Ex. R. 191 ; Anderson v. Weston, 6 Ring. N. C. 301 
 per Bosanquet, J. 
 
 '» Potez V. Glossop, 2 Ex. R. 191. See, also, Hutler v. Mountgarret, 7 H. of 
 L. Cas. 646, 647, per Ld. Wensleydale. 
 
 " See also, re Adamson, L. R., 3 P. & D. 253. '^ 32 & 33 y_^ q_ 71^ ^ j;^_ 
 
CHAP, v.] DATE OF DOCUMENTS — ACTING IN OFFICES. 177 
 
 ruptcy and the time when the adjudication takes eiFect ; and as, 
 moreover, it is the interest of the petitioning creditor to support 
 the adjudication, the court has felt a reasonable jealousy of a 
 coUusion between him and the bankrupt, and has, accordingly, 
 required that some independent proof of the existence of the 
 instrument, previous to the act of bankruptcy, should be given 
 in evidence, beyond the mere date apparent on its face.^ The 
 second exception is, where, in petitions for damages on the ground 
 of adultery,^ letters are put in evidence to show the terms on 
 which the husband and wife were living before the seduction ; and 
 here, in order to avoid the obvious danger of collusion, it has been 
 deemed necessary that some independent proof should be given 
 that the letters were written at the time they bear date.^ It may 
 be questionable whether the courts would not now recognise a 
 third exception to the rule in those cases, where indorsements 
 made by a deceased obligee on a bond, acknowledging the receipt of 
 interest, are tendered in evidence by his assignee, with the view of 
 defeating a plea of the Statute of Limitations, set up by the obligor.* 
 
 § 170. Subject to the above exceptions, the rule in question is § 138 
 founded on common reason ; for in the very great majority of 
 cases, documents are actually written on the day they bear date. 
 The doctrine, however, must not be pushed too far ; and in 
 applying it to bills of exchange, it must be borne in mind that 
 the date of the bill, though prima facie evidence of the day when 
 it was drawn, is no proof that it was accepted at the same time. 
 The most that the law will presume is that a bill was accepted 
 before its maturity, and within a reasonable time after it was 
 drawn ; and it recognises that presumption, because in all ordinary 
 transactions such a course of business would be pursued.^ 
 
 ' Anderson v. Weston, 6 Bing. N. 0. 301, 302, per Bosanquet, J. ; Sinclair 
 V. Baggaley, 4 M. & W. 318, per Ld. Abinger ; Hoare v. Coryton, 4 Taunt. 
 560 ; WrigM v. Lainson, 2 M. & W. 739, 743. These cases overrule Taylor v. 
 Kinlooh, 1 Stark. E. 175. ^ See 20 & 21 V., c. 85, § 33. 
 
 ' Trelawney v. Coleman, 2 Stark. R. 193, per Hoboyd, J. ; HouHston v. 
 Smyth, 2 C. & P. 24, per Best, C. J. 
 
 ■• See this question discussed, post, §§ 690 — 696. 
 
 * Roberts v. Bethell, 12 Com. B. 778, questioning Israel v. Argent, and Blyth 
 ■a. Arohbold, cited in Pears. Chit. PI. 330, n. b. 
 
 H 
 
178 PRESUMPTIONS FROM ACTING IN PUBLIC OFFICES. [PART I. 
 
 § 171. The fact that a person has acted in an official capacity § 139 
 is also presumptive evidence of his due appointment to the office, 
 because it cannot be supposed that any man would venture to 
 intrude himself into a public situation which he was not autho- 
 rised to fill. This rule has been expressly adopted by the legis- 
 lature in the statutes relating to the excise ^ and customs,^ and at 
 common law it has been held applicable to lords of the treasury,* 
 masters in chancery, though exercising special powers,* commis- 
 sioners for taking affidavits,^ surrogates,^ sheriffs,'' under-sheriffs,^ 
 justices of the peace,^ constables,!" though appointed by commis- 
 sioners under a local public Act,!i trustees under a turnpike Act,!^ 
 
 1 7 & 8 G. 4, c. 53, § 17, enacts, tliat "if upon the trial of any indictment, 
 information, action, suit, or prosecution whatsoever, or in any other legal or 
 judicial proceeding, any question shall be made, or any doubt or dispute shall 
 arise, touching or concerning the keeping of any ofiice of excise, or whether 
 any person is or was a commissioner or assistant commissioner of excise, or 
 a collector or other officer of excise, or commissioned or appointed to act as 
 such, evidence of the actual keeping of such oflB.ce of excise, or that such 
 person is, or at the time in question was, reputed to be such commissioner 
 or assistant commissioner, or such collector or other ofllcer, or does or did then 
 act as such commissioner or assistant commissioner, or as such collector or otlier 
 oflELcer so commissioned and appointed (as the case may require), shall in every 
 such case be admitted and deemed and taken to be respectively suflEicient and 
 legal proof of such facts respectively, without producing or proving the parti- 
 cular commission, appointment or other authority, whereby such person is or 
 was commissioned or appointed to be such commissioner or assistant commis- 
 sioner, or such collector or other ofl&cer as aforesaid, unless by other evidence 
 the contrary be made to appear ; any law, custom, or usage to the contrary 
 thereof notwithstanding." 
 
 2 39 & 40 v., c. 36, § 261, enacts, that " if upon any trial a question shall 
 arise whether any person is an oflScer of the army, navy, or marines, or coast- 
 guard duly employed for the prevention of smuggling, or an officer of customs 
 or excise, his own evidence thereof, fir other evidence of his having acted as 
 Ruch, shall be deemed sufficient, without production of his commission or 
 deputation. ' r_ ^_ Jones, 2 Camp. 131, per Ld. EUenborough. 
 
 ^ Marshall v. Lamb, 5 Q. B. 115. 
 
 ■' R. V. Howard, 1 M. & Rob. 187, per Patteson, J. ; R. v. Newton, 1 C. & 
 Kir. 480. , ' K v. Verelst, 3 Camp. 432, per Ld. EUenborough. 
 
 ' Bunbury v. Matthews, 1 C. & Kir. 382, per Parke, B. 
 
 « Doe V. Brawn, 5 B. & A. 243. See Plumer v. Brisco, 11 Q. B. 46 ; 
 Robinson v. CoUingwood, 17 Com. B., N. S. 777. 
 
 " Berryman v. Wise, 4 T. R. 366, per BuUer, J. " Id. 
 
 " Butler V. Ford, 1 C. & M. 662. 12 Pritchard v. Walker, 3 C. & P. 212. 
 
CHAP, v.] PRESUMPTIONS FROM ACTING IN PUBLIC OFFICES. 179 
 
 churchwardens/ overseers,^ vestry-clerks/ trustees empowered to 
 raise church-rates under a local Act,* weigh-masters of market 
 towns/ attested soldiers engaged in the recruiting service/ and, 
 indeed, it extends to all public officers.'' Moreover, no distinction 
 is recognised, though the appointment must necessarily be in 
 writing,^ or even under seal,^ or though the action be brought in 
 the name of the officer,^" or though the title be directly put in 
 issue by the pleading,^^ or though the proceedings be criminal, 
 and in the highest degree penal, as, for instance, a trial for the 
 murder of a constable in the execution of his duty.^^ Neither will 
 any exception to this rule be allowed, even in cases where parties 
 are indicted for offences committed by them in their character of 
 public officers. Thus, if a person employed by the Post-office be 
 indicted for stealing or embezzling a letter,^' his formal appoint- 
 ment need not be proved, but it will suffice to show that he has 
 acted in the capacity charged ;i* though, in an Irish case, Mr. 
 
 1 R. V. Mitchell, per Abbott, C. J., cited 2 St. Ev. 307, n. r. 
 
 ^ Doe V. Barnes, 8 Q. B. 1037. ' M'Gahey v. Alston, 2 M. & W. 206. 
 
 ^ R. V. Murphy, 8 C. & P. 310, per Coleridge, J. 
 
 * M'Mahon v. Lennard, 6 H. of L. Cas. 970 ; Dexter v. Hayes, 11 It. Law 
 R., N. S. 106 ; S. C. in Ex. Ch. nom. Hayes v. Dexter, 13 id. 22 ; M'Mahon v. 
 ElUs, 14 id. 499, 509. "Walton v. Gavin, 16 Q. B. 48. 
 
 ' M'Gahey v. Alston, 2 M. & W. 211, per Parke, B. ; Marshall v. Lamb, 5 
 Q. B. 123, per Patteson, J. ; Doe v. Young, 8 Q. B. 63. 
 
 ^ See cases cited in preceding notes to this section. 
 
 ^ Dexter ii. Hayes, 11 Ir. Law R., N. S. 106, 119, per Fitzgerald, B., explain- 
 ing Smith V. Cartwright, 6 Ex. R. 927. 
 
 i» M'Gahey v. Alston, 2 M. & W. 206, 211 ; M'Mahon v. Lennard, 6 H. of L. 
 Gas. 970 ; Doe v. Barnes, 8 Q. B. 1037, which was an action of ejectment 
 brought by parish oflcers ; Cannell v. Curtis, 2 Bing. N. C. 228 ; 2 Scott, 379, 
 S. C. This last case was an action for libel ; the declaration averred that the 
 plaintiff had been appointed and was assistant overseer ; the plea traversed the 
 appointment. Tindal, C. J., intimated a strong opinion that it was only 
 necessary for the plaintiflf to prove that he acted as assistant overseer. This 
 ruUng was cited by Parke, B., in 2 M. & W. 209. 
 
 " Dexter v. Hayes, 11 Ir. Law R., N. S. 106 ; S. C. nom. Hayes v. Dexter, 
 13 Ir. Law R., N. S. 22, per Ex. Ch. ; MoMahon v. Lennard, 6 H. of L. Cas. 
 1000. ^^ R. V. Gordon, 1 Lea. 515. 
 
 >3 See 7 W. 4 & 1 V., c. 36, §§ 25, 26. 
 
 " Clay's case, 2 East, P. C. 580 ; R. v. Rees, 6 C. & P. 606, per Parke, B. ; 
 R. V. Barrett, id. 124, per Littledale and Bosanquet, Js., and Bolland, B. ; B. v. 
 Townsend, C. & Marsh. 178 ; R. v. Goodwin, 1 Lew. C. C. 100. 
 
 H 2 
 
180 PARTNEESHIP — APPRENTICESHrP — MAEEIAGE. [PAET I. 
 
 Justice Crampton appears to have held that some proof of acting 
 with the sanction of the Post-of&ce authorities was necessary.^ 
 
 § 172. The same presumption prevails with respect to certain § 140 
 relations of hfe. Thus, the relations of landlord and tenant, of 
 partnership, and of master and servant, are frequently presumed 
 from the conduct of the parties being more consistent with that 
 state of things than with any other.^ So, a presumption in 
 favour of the relation of master and apprentice has more than 
 once been recognised, from the fact of the parties having acted 
 towards each other as they would have done in the case of an 
 apprenticeship, though no direct proof was given of the existence 
 of any indenture.^ So, also, a cogent legal presumption is raised 
 in favour of the validity of any marriage which is shown to have 
 been celebrated de facto;'* and this presumption will not be 
 rebutted, in the case of a minor married by licence in her father's 
 lifetime, by the mere fact of the mother's name appearing in the 
 register as the consenting party, and no evidence being adduced 
 to establish the consent of the father.^ So, if persons live together 
 ostensibly as man and wife the law will, in favour of morality and 
 decency, presume that they are legally married ; ^ and so far has 
 this presumption been recognised in Scotland, that even where 
 the connexion was shown to have commenced in adultery, a sub- 
 sequent valid marriage has been inferred from strong evidence 
 of habit and repute.''' Two exceptions to this rule are, however, 
 
 1 R. 0. Trenwyth, Ir. Cir. R. 172. Sed qu. 1 
 
 2 R. V. Fordingbridge, E. B. & E. 685, per Erie, J. 
 
 3 R. V. Fordingbridge, E. B. & E. 678 ; R. v. St. Marylebone, 4 D. & 
 R. 475. 
 
 " Piers V. Piers, 2 H. of L. Cas. 331 ; Sichel v. Lambert, 15 Com. B., N. S. 
 781. See Harrod v. Harrod, 1 K. & J. 4. Also, ante, § 86. 
 
 * Harrison v. Corp. of Southampton, 22 L. J., Cli. 722. 
 
 " Doe V. Fleming, 4 Bing. 266 ; Goodman v. Goodman, 28 L. J., Ch. 1. The 
 same presumption is recognised by the Mahomedan law. Ranee Khujooroonissa 
 V. Mussamut Roushun Jehan, L. R., 3 Ind. App. 291, 311. 
 
 ' The Breadalbane case, 1 Law Rep., H. L. Sc. 182 ; explaining, or, per- 
 haps, as some may think, explaining away, Cunningham v. Cunningham, 2 
 Dnw, 483 ; and Lapsley v. Grierson, 1 H. of L. Cas. 498. See, also, Lyle v. 
 EUwood, \\ 1j. J., Ch. 164, per HaU, V.-C. ; 19 Law Rep., Eq. 98, S. C. ; and 
 De Thoren v. Att.-Qen., L. R., 1 App. Cas. 686. 
 
CHAP, v.] COEPOEATE BODIES PEOFESSIONAL MEN. 181 
 
 recognised in England ; for on an indictment for biganiy,^ so far 
 as the first ^ marriage is concerned, and on a petition claiming 
 damages against an alleged adulterer,^ an actual marriage' must be 
 proved, and even the proof of a ceremony, which the parties 
 supposed to be sufficient to constitute the relation of husband and 
 wife, is not enough, but it must be shown to be sufficient according 
 to law for that purpose.* These exceptions rest on the ground, 
 that such proceedings, being of a penal nature, require the strictest 
 proof ; and a further reason for the exception in cases of adultery 
 seems to be, to prevent parties from setting up pretended marriages 
 for evil purposes.^ 
 
 § 173. How far this rule applies to corporate bodies, or to persons § 141 
 suing or being sued as professional men, or as filhng particular 
 situations, does not very distinctly appear. In the recent case of 
 R. V. Langton,^ parol evidence that a limited company had acted as 
 such was held sufficient, without strict proof of incoi-poration, to 
 support an indictment, which charged the accused with obtaining 
 the goods of the company by false pretences ; but here it must be 
 noted that by virtue of § 88 of the statute 24 & 25 V., c. 96, no 
 allegation of ownership was necessary in the indictment. In an 
 action against a clergyman for non-residence. Lord Mansfield held 
 that the plaintiff was not bound to prove the admission, institution, 
 and induction of the defendant, but that it was sufficient to show 
 that he had received tithes and acted as the incumbent of the 
 
 1 24 & 25 v., c. 100, § 57. 
 
 '^ The second marriage need not be sucli as would he binding in law, if it were 
 not bigamous ; e.g., a widower may be convicted of bigamy, if, having a second 
 wife living, he has gone through the ceremony of marriage with a niece of his 
 first wife ; R. v. AUen, 1 Law Rep., 0. C. 367 ; 41 L. J., M. C. 97 ; 12 Cox, 
 193, S. C. ; overruling R. v. Fanning, 17 Ir. Law R., N. S. 289 ; 10 Cox, 411, 
 S. C. 3 20 & 21 v., 0. 85, § 33. 
 
 * Catherwood v. Caslon, 13 M. & W. 261, 265, per Parke, B. ; Burt v. Burt, 
 29 L. J., Pr. & Mat. 133. But see Booker v. Rooker & Newton, 33 L. J., Pr. & 
 Mat. 42, per Wilde, J. O. See, also, Patrickson v. Patiickson^ 35 L. J., Pr. & 
 Mat. 48 ; 1 Law Rep., P. & D. 86, S. C; and cases cited ante, p., 157, n. 3 & 4. 
 
 s Morris v. MiUer, 4 Burr. 2057 ; 1 W. Bl. 632, S. C. ; Birt v. Barlow, 
 1 Doug. 171, 174, per Ld. Mansfield. 
 
 « 13 Cox, 349, per Ct. of Cr. App. ; 46 L. J., M. C. 136 ; & L. R. 2 Q. B. D. 
 296, S. C. 
 
182 PRESUMPTIONS RESPECTING PROFESSIONAL MEN. [PART I. 
 
 parisli.^ So, where a solicitor brought an action of defamation 
 against a party for slandering him in his profession, by threatening 
 to strike him off the rolls for misconduct, he was allowed to recoyer 
 damages, on proof that he had acted as a solicitor, without showing 
 his due admission and enrolment.^ So, in an action for penalties 
 under the Post-horse Act, brought by the plaintiff as farmer- 
 general, proof of his appointment was dispensed with as against 
 the defendant, who had previously accounted with him iu that capa- 
 city ; ^ and, — not to multiply instances, — ^the same laxity of evidence 
 has several times been allowed in actions brought by surgeons * 
 and solicitors for their fees, and by parsons for their tithes.^ But 
 these cases appear to rest not so much, if indeed at all, upon the 
 presumption now under discussion, as on the ground that the 
 opposite party had, by his admissions, either by word or deed, 
 rendered it unnecessary to prove the actual appointment.^ In 
 cases, therefore, where no such admission has been made, the 
 safer, if not the necessary, course will be to prove the appointment 
 in the ordinary manner ; and, indeed, this seems consistent with 
 modern practice and with the latest decisions. 
 
 § 174. Thus, in an action brought by a physician for defamation, § 142 
 where the slanderous words denied that the plaintiff was a doctor of 
 medicine, proof that he had acted as such, coupled with evidence of 
 
 • Bevan v. Williams, 3 T. B. 635, n. a. 
 
 2 Berryman v. Wise, 4 T. R. 366. 
 
 ' Eadford v. M'lntosh, 3 T. R. 632 
 
 ^ Gremaire v. Le Clerk Boia Valon, 2 Camp, 144. In that case the plaintiff 
 had performed several surgical operations for the defendant, but it was con- 
 tended that he could not maintain the action, as he was not a member of the 
 College of Surgeons. He recovered a verdict, and the court discharged a 
 rule to set it aside, as no proof had been given that the plaintiff was not duly 
 licensed. See Cope v. Rowlands, 2 M. & W. 160. See, also, 21 & 22 V. c. 90 
 § 32, which now renders it necessary for a medical man, when suing for his 
 charges, to prove his due registration. 
 
 ' Eadford v. M'Intosh, 3 T, E. 632 ; Berryman v. Wise, 4 T. E. 367, per 
 BuUer, J. See Green v. Jackson, Pea. K 236. 
 
 ' See per Chambre, J., in Smith v. Taylor, 1 N. E. 210—212 ; also the judg- 
 ment of Heath, J., who observes—" It seems to me that where a defendant, in 
 the course of the transaction on which the action is founded, has admitted the 
 title, by virtue of which the plaintiff sues, it amounts to prim4 facie evidence 
 that the plaintiff is entitled to sue." Id. p. 208. 
 
CHAP, v.] PRESUMPTIONS RESPECTING PROFESSIONAL MEN. 183 
 
 a Scotch diploma, was held insufficient to entitle him to a verdict ; 
 and Lord Denman observed, " No doubt a person complaining of a 
 slander upon him in a particular character, must prove that he 
 possesses that character, when the slander does not admit it." ^ 
 In this case, however, the question, whether acting as a physician 
 is sufficient prima facie proof of being one, was not directly decided, 
 because the plaintiff, not content with resting his case on such 
 evidence, proceeded to prove that he had received the degree of 
 doctor of medicine from the University of St. Andrew's ; and as the 
 court held that this did not entitle him to practise in England, he 
 could not, of course, fall back upon proof of practice, on the legality 
 of which he himself had, by his evidence, thrown doubt. 
 
 § 175. In another action of slander, brought by a collector of § 143 
 tolls, the plaintiff was nonsuited on failing to prove his appoint- 
 ment to that office, but it does not appear that any evidence was 
 offered that he ever acted in that capacity ; ^ and the same obser- 
 vation applies to the cases of Savage v. ,^ and of Cortis v. 
 
 Kent Waterworks Co.,* in the former of which the plaintiff, who 
 sued as a barrister, relied, not on his practice, but on the book of 
 the Society of Lincoln' s-inn, containing the order for his call ; and 
 in the latter, a party, suing in the character of treasurer to certain 
 commissioners, proved his appointment to the office. Still, these 
 cases, though not direct authorities, tend to show what the practice 
 has been, and so far support the view that the rule which renders 
 evidence of acting prima facie proof of due appointment, is confined 
 
 1 Collins V. Carnegie, 1 A. & E. 695, 703 ; 3 N. & M. 703, S. C. ; Pickford v. 
 Gutcli, 8 T. R. 305, n. a, per Buller, J. ; Smith, v. Taylor, 1 N. K 196. In this 
 case the court was equally divided on the question whether proof of acting as 
 a physician was sufficient, but Sir J. Mansfield and Heath, J., who held the 
 affirmative, also thought that the words of the slander — " Dr. S. has upset all 
 that we have done, and die he (the patient) must " — ^implied an admission of 
 the character in which the plaintiff sued. It must be remembered, that in 
 actions of this kind, where the statement of claim alleges that the plaintiff holds 
 a certain office, or belongs to a particular profession or trade, no evidence is re- 
 qiiired to support this statement, unless it be distinctly denied in the statement 
 of defence. Rules of Sup. Ct. Ord. xix., r. 17. 
 
 2 SeUers v. TiU, 4 B. & C. 655. 
 
 3 1 Doug. 356, n. 4. 
 < 7 B. & C. 314. 
 
184 PRESUMPTIONS FOUNDED ON COURSE OF BUSINESS. [PART I. 
 
 to cases where the parties occupy a public situation, or, perhaps, 
 where the* question of appoiatment is not directly in issue. The 
 case of E.. v. Jones,^ where, on an indictment against an apprentice 
 for a fraudulent enlistment, it was held that the indenture must be 
 proved, is an authority on neither side of this question, for that 
 decision rested on the ground, that as the actual and legal binding 
 was the fact which constituted the gist of the offence, this could 
 only be proved by the best evidence. 
 
 § 176. Other presumptions of this class are founded upon the ex- § 144 
 perience of human conduct in the ordinary course of business. Thus, 
 the receipt of rent after the expiration of an old lease raises a legal 
 presumption of a new tenancy from year to year ; ^ though either the 
 payer or the receiver of such rent may of course repel the presump- 
 tion, by proving that the payment was made under circumstances 
 inconsistent with it ; as, for example, under the impression that the 
 old lease was still subsisting.^ So, if a tenancy from year to year 
 be created, the law presumes that it was intended to be determin- 
 able by either party at the end of the first, as well as of any sub- 
 sequent, year, unless the parties, when arranging the terms of the 
 contract, have used expressions showing that they contemplated a 
 tenancy for two years at least.* So, if a lessor, having mortgaged 
 his reversion, is permitted by the mortgagee to continue in the re- 
 ceipt of the rent incident to that reversion, he, during such permis- 
 sion, is presumptione juris authorised, if it should become necessary, 
 to sue for such rent, or to prevent or recover damages in respect of 
 any trespass or wrong relative to the property, in his own name 
 only.^ Whether, under these circumstances, the mortgagor could 
 realise the rent by distress in his own name, is not so clear, but 
 under the old law he could distrain for it in the mortgagee's name, 
 
 ' 1 Lea. 174. 
 
 2 Bishop V. Howard, 2 B. & C. 100 ; 3 D. & R. 293, S. C. ; Doe v. Taniere, 
 12 Q. B. 998 ; Bccles. Commiss. v. Merral, 4 Law Kep., Ex. 162 ; 38 L. J., Ex. 
 93, S. C. In these last two cases the lessors were a corporation. 
 
 3 Doe V. Orago, 6 Com. B. 90. 
 
 ■> Doe V. Smaridge, 7 Q. B. 957. See Brown b. Symons, 29 L. J., C. P. 251 ; 
 Langton v. Carleton, 9 Law Rep., Ex. 57 ; 43 L. J., Ex. 54, S. C. 
 5 36 & 37 v., c. 66, § 25, subs. 5. 
 
CHAP, v.] PRESUMPTIVE TEEMS OF SERVICE. 185 
 
 and as his bailiff.^ The same implied authority has also been re- 
 cognised in favour of a party, to whom the mortgagor had assigned 
 his equity of redemption.^ Again, in actions of trover, the jury 
 will be advised, if not directed, to presume a conversion from un- 
 explained evidence of a demand and refusal.* 
 
 § 177. If a servant be hired generally, without any stipulation as § 145 
 to time, the law presumes the hiring to have been for a year, unless 
 there are circumstances tending to rebut this presumption ; * as, 
 for instance, the existence of an agreement to pay weekly or monthly 
 wages, coupled with the absence of any other stipulation showing an 
 intention that the service should continue for a longer period than a 
 week or a month.^ This rule applies to domestic as well as to farm 
 servants ; but there is this difference between the two classes, that 
 the service of the former, unlike that of the latter,® may be deter- 
 mined by a month's warning or on payment of a month's wages.'^ 
 In the case of clerks, warehousemen, travellers, editors, reporters, 
 actors, ushers, governesses, and the like, the law raises no inflexible 
 presumption of an indefeasible yearly hiring from the mere fact of a 
 hiring for an indefinite period ; but in all such cases, the jury must 
 determine the question for themselves, after weighing all the circum- 
 stances proved, and ascertaining, if possible, what usage prevails in 
 the particular business or employment to which the hiring relates.^ 
 
 > Trent v. Hunt, 9 Ex. K. 24, per Alderaon, B. 
 
 2 Snell V. Fincli, 32 L. J., 0. P. 117 ; 13 Com. B., N. S. 651, S. C. 
 
 3 Caunoe v. Spanton, 7 M. & Gr. 903 ; Stancliffe v. Hardwiok, 2 C. M. & 
 K. 1, 12 ; Thompson v. Trail, 2 C. & P. 334 ; 6 B. & 0. 36 ; 9 D. & E. 31, 
 S. 0. ; Thompson v. Small, 1 Com. B. 328 ; Davies v. Nicholas, 7 C. & P. 
 339 ; Clendon v. Dinneford, 5 C. & P. 13 ; 3 St. Ev. 1160, 1161. See Towne 
 V. Lewis, 7 Com. B. 608. 
 
 * Lilley v. Elwin, 11 Q. B. 742, 754. 
 
 5 R. V. Worfleld, 5 T. R. 508; R. v. St. Andrew, Pershore, 8 B. & C. 
 679 ; R. V. Pilkington, 5 Q. B. 662 ; Baxter v. Nurse, 6 M. & Gr. 939, per 
 Coltman, J. 
 
 * Beeston v. CoUyer, 4 Bing. 313, per Gaselee, J. 
 
 ' Turner v. Mason, 14 M. & W. 116, per Parke, B. ; Beeston v. Collyer, 
 4 Bing. 313, per Gaselee, J. ; Fawcett v. Cash, 5 B. & Ad. 908, 909. 
 Ante, § 34. 
 
 - Baxter v. Nurse, 6 M. & Gr. 935 ; 1 0. & Kir. 10, S. C. See Holcroft v. 
 Barber, 1 C. & Kir. 4 ; Todd v. Kerriok, 8 Ex. R. 151 ; Parker v. Ibbetson, 4 
 Com. B., N. S. 348 ; Fairman v. Oakford, 5 H. & N. 635. 
 
186 PRESUMPTIONS EESPBCTING PAYMENTS. [PAET I. 
 
 Again, a general promise to marry is presumed or interpreted by 
 the law to mean a promise to marry within a reasonable time ; ^ and 
 a similar construction is put upon all general contracts to do certain 
 acts, as to deliver goods and the like, where the time of completion 
 has been left undefined by the parties.^ 
 
 § 178.^ Again, as men are usually vigilant in guarding their pro- § 148 
 perty, prompt in asserting their rights, and diligent in claiming and 
 collecting their dues, the law presumes, where a bill of exchange, or 
 an order for the payment of money or the delivery of goods is found 
 in the hands of the drawee, that he has paid the money due upon 
 the instrument, and dehvered the goods ordered.* A similar pre- 
 sumption is raised from the fact of a promissory note being found in 
 the possession of the maker.^ So, a receipt for the last year's or 
 quarter's rent is prima facie evidence of the payment of all the rent 
 previously accrued.^ The mere delivery of money, or of a bank 
 cheque, by one person to another, or the transfer of stock, un- 
 explained, is presumptive evidence of the payment of an antecedent 
 debt, and not of a loan.'^ So, when a defendant, having money of 
 the plaintiff in his hands, drew a cheque upon his banker in favour 
 of the plaintiff, who had the cheque cashed at the bank, this was 
 held to be presumptive evidence of payment, though no proof was 
 given that the plaintiff received the cheque directly from the defen- 
 dant, and it was urged that it might have passed through many 
 other hands.^ 
 
 1 Potter V. Deboos, 1 Stark. E. 82, per Ld. EUenborougli ; Atckmson v. Baker, 
 Pea. Add. Cas. 104, per Ld. Kenyon. 
 
 2 EUis V. Thompson, 3 M. & W. 456, per Alderson, B. See Ford v. Cotea- 
 worth, 9 B. & S. 559 ; 5 Law Eep., Q. B., 544, S. C. ; 10 B. & S. 991, S. C. in 
 Ex. Ch. ^ Gr. Ev. § 38, in part. 
 
 * Gibbon v. Eeatlierstonhaugli, 1 Stark. R. 225 ; Egg v. Bainett, 3 Esp. 196 ; 
 Garlock ii. Geortner, 7 "Wend. 198 ; Alvord v. Baker, 9 Wend. 323 ; Weidner v. 
 Schweigart, 9 Serg. & E. 385 ; Shepherd v. Currie, 1 Stark. R. 454. 
 
 ' Brembridge v. Osborne, 1 Stark. R. 374. 
 
 « 1 Gilb. Ev. 309 ; Brewer v. Knapp, 1 Pick. 337 ; 23 & 24 V., c. 154, 
 § 47, Ir. 
 
 ' Welch u Seaborn, 1 Stark. R. 474 ; Breton v. Cope, Pea. R. 30 ; Lloyd o. 
 Sandiland, Gow, R. 13, 16 ; Gary v. Gerrish, 4 Esp. 9 ; Aubert v. Walsh, 4 
 Taunt. 293 ; Boswell v. Smith, 6 C. & P. 60 ; Graham u Cox, 2 C. & Kir. 702 ; 
 Patton V. Ash, 7 Serg. & R. 116, 125. 
 
 ' Mountford v. Harper, 16 M. & W. 825, per Alderson, B. 
 
CHAP. Y.J PEESUMPTIONS KESPECTING THE POST OFFICE. 187 
 
 § 179. '^ Under this head may be ranked seyeral presumptions, § i47 
 which are frequently made from the regular course of business in 
 a public office. Thus, postmarks on letters, — when capable of being 
 deciphered, — are prima facie evidence that the letters were in the 
 post at the time and place therein specified ; ^ and, by virtue of a 
 special enactment, " the official mark of any sum on any postal 
 packet as due to the Post-office, British, colonial, or foreign, in 
 respect of that packet, shall in every part of Her Majesty's dominions 
 be received as evidence of the lia,bility of such packet to the sum so 
 marked." ^ Again, if a letter properly directed^ is proved to have 
 been either put into the post-office, or delivered to the postman,^ it 
 is presumed, from the known course of business in that department 
 of the public service, that it reached its destination at the regular 
 time, and was received by the person to whom it was addressed,^ 
 
 § 180. This last presumption furni-shes in most cases mere prima § 147 
 facie proof,'' though in some instances it is rendered conclusive, 
 either by rules of court, or by Act of Parliament. Thus, under the 
 Bankruptcy rules of 1870, " all notices and other proceedings, for 
 the delivery of which no special mode is prescribed, may be sent by 
 prepaid post letter to the last known address of the person to be 
 served therewith ; " ^ and " an affidavit by a trustee, or an officer of 
 the court, or by any clerk of either, that letters have been put into 
 a post-office, shall be sufficient evidence of such notices having been 
 duly sent to the persons, to whom the same purport to have been 
 
 1 Gr. Ev. § 40, in part 
 
 2 Fletcter v. Braddyll, 3 Stark. R. €4 ; R. v. Johnson, 7 East, 65 ; K. v. 
 Watson, 1 Camp. 215 ; Arohangelo v. Thompson, 2 Camp. 623 ; E. v. Plumer, 
 E. & E. 264 ; Stocken v. Collin, 7 M. & W. 515 ; Butler v. Mountgarret, 6 Ir. 
 Law E., N. S. 77 ; id. in Dom. Proc, 7 a of L. Cas. 633. 
 
 3 38 & 39 v., 0. 22, § 8. 
 
 * Where the address was "Mr. Haynes, Bristol," it was held insufficient 
 to raise this presumptionj Walter v. Haynes, Ey. & M. 149, per Abbott, 
 C. J. * SkUbeck v. Gaxbett, 7 Q. B. 846. 
 
 5 Saunderson v. Judge, 2 H. Bl. 509 ; Woodcock v. Honldsworth, 16 M. & 
 W. 124 ; Dunlop v. Higgins, 1 H. of L. Cas. 381 ; Bussard v. Levering, 6 
 Wheat. 102 ; Lindenberger v. Beal, id. 104 ; Warren v. Warren, 1 C. M. & E. 
 250 ; Kufh v. Weston, 3 Esp. 54 ; Dobree v. Eastwood, 3 C. & P. 250 ; Wall's 
 case, 15 Law Eep., Eq. 18, per Malins, V.-C. ; 42 L. J., Ch. 372, S. C. ; In re 
 Hickey, I. E. 10 Eq. 117 ; Story, BUls, § 300. 
 
 7 Eeidpath's case, 40 L. J., Ch. 39, per Ld. EomiUy, M. E. » E. 14. 
 
188 NOTICES SEETED THBOUGH THE POST OFFICE. [PABT I. 
 
 addressed." ^ So, under the Companies' Clauses, the Lands' 
 Clauses, and the Eailway Clauses Consolidation Acts, summonses, 
 notices, writs, and other proceedings, may be served upon the re- 
 spective companies or promoters subject to these Acts, by being 
 transmitted through the post direct to their principal offices ; ^ 
 and a like service of notices by the company upon the shareholders 
 will, under the first-named Act, be in general deemed sufficient.^ 
 Somewhat similar clauses are inserted in the Companies Act, 1862,* 
 in the Mines Eegulation Acts of 1872,^ in the Licensing Act, 1872,^ 
 in the Eegulation of Eailways Act, 1873,'' in the Public Health 
 Act, 1875,^ in the Friendly Societies Act, 1875,* in the Public 
 Works Loans Act, 1875,^" in the Agricultural Holdings Act, 1875,^^ 
 and in a variety of other statutes.-'^ Again, at common law, the 
 time of clearance of a vessel, sailing under a licence, has been pre- 
 sumed to have been indorsed upon the licence, which was lost, upon 
 its being shown, that without such indorsement the custom-house 
 
 1 E. 98. 
 
 2 8 & 9 v., 0. 16, § 135 ; c. 18, § 134 ; c. 20, § 138. 
 
 3 8 & 9 v., c. 16, § 136. 
 
 ■• 25 & 26 v., c. 89, §§ 62, 63. 
 
 5 35 & 36 v., c. 76, § 71 ; and c. 77, § 40. 
 
 « 35 & 36 v., c. 94, § 70. 
 
 ' 36 & 37 v., c. 48, § 35. 
 
 « 38 & 39 v., c. 55, § 267. 
 
 '' 38 & 39 v., c. 60, § 30, subs. 11. 
 
 1" 38 & 89 v., 0. 89, § 47. 
 
 " 38 & 39 v., 0. 92, § 41. 
 
 12 See 7 & 8 V., c. 33, § 6 ; 8 & 9 V., o. 100, § 108 ; 7 & 8 V., c. 101, § 72 ; 
 10 & 11 v., c. 32, § 60 ; 6 & 7 V., o. 18, § 100 ; explained in Bishop v. Helps, 
 2 Com. B. 45 ; Hickton v. Antrobus, id. 82 ; Bayley v. Overseers of Nantwicli, 
 id. 118 ; Lewis v. Evans, 44 L. J., C. P. 41 ; 10 Law Eep., C. P. 297 ; and 2 
 Hop. & Colt. 279, S. C. ; Homsby v. Eobson, 1 Com. B., N. S. 63 ; Hannaford 
 ■V. Wbiteway, 26 L. J., C. P. 75 ; 13 & 14 V., c. 69, §§ 113, 114, Jr. As to 
 sending by the post notices on behalf of the Metrop. Boaxd of Works, see 18 & 
 19 v., c. 120, § 221 ; notices relative to the proceedings of charitable institu- 
 tions, see 14 & 15 V., c. 56, § 2 ; notices under the Copyhold Acts, see 21 & 22 
 v., c. 94, § 20 ; notices under " The Endowed Schools Act, 1869," see 32 & 33 
 v., c. 56, § 57 ; notices and other documents under " The Elementary Education 
 Act, 1870," see 33 & 34 V., c. 75, § 81 ; notices under " The Valuation Metropolis 
 Act, 1869," see 32 & 33 V., o. 67, § 65 ; notices and other documents under 
 " The Eccles. Dilapid. Act, 1871," see 34 & 35 V., c. 43, § 69 ; notices and docu- 
 ments under "The Explosives Act, 1875," see 38 & 39 V., c. 17, § 85. 
 
CHAP, v.] PBESXJMPTIONS FOUNDED ON COURSE OF BUSINESS. 189 
 
 would not have permitted the goods to be entered.-^ So, on proof 
 that goods, which cannot be exported without licence, were entered 
 at the custom-house for exportation, a licence to export them will 
 be presumed.^ 
 
 § 181. The like presumption is also sometimes drawn from the § 148 
 usual course of men's private offices and business, where the primary 
 evidence of the fact is wanting.^ Thus, the underwriters upon a 
 foreign ship or a foreign voyage are presumed to know the usages 
 and laws of foreign states which affect that ship or that voyage, 
 because such knowledge is necessary for the due conduct of the 
 business.* So, an underwriter is often presumed in fact, though 
 not in law,^ to know the contents of Lloyd's Shipping List, because 
 this is a document, to which, in the ordinary course of his business, 
 he has access ; but this last presumption is strictly confined to 
 cases, where the assured has made no representation inconsistent 
 with the list, which is calculated to mislead the underwriter.^ It 
 may also be laid down as clear law, that if a man deals in a particu- 
 lar market, he will be taken to act according to the custom of that 
 market ; and if he directs another to make a contract at a particu- 
 lar place, he will be presumed to intend that the contract should be 
 made according to the usage of that place.'' Thus, if a person em- 
 ploys a broker on the Stock Exchange, he impliedly authorises him 
 to act in accordance with the rules there established ; and in such 
 case it matters not whether the principal be himself acquainted 
 
 1 Butler V. AUnutt, 1 Stark. E. 222. 
 
 2 Van Omeron v. Dowiok, 2 Camp. 44. 
 
 3 Doe D. Turford, 3 B. & Ad. 890, 895 ; Champneys v. Peck, 1 Stark. E. 404 ; 
 Pritt V. Fairclough, 3 Camp. 305. 
 
 " Young ■». Tilling, 2 M. & Gr. 603, per Ld. Abinger ; 2 Scott, N. E. 752, 
 S. C. ; Noble v. Kennoway, 2 Doug. 513, per Ld. Mansfield. 
 
 5 Morrison v. Tlie Universal Mar. Ins. Co., 42 L. J., Ex. 17. 
 
 « Mackintosh v. MarsbaU, 11 M. & W. 116. 
 
 ' Bayliffe v. Butterworth, 1 Ex. E. 429, per Alderson, B. ; 5 Eail. Cas. 288, 
 S. C. ; PoUock V. Stables, 12 Q. B. 765 ; 5 Eail. Cas. 352, S. C. ; Greaves v. 
 Legg,'ll Ex. E. 642 ; 2 H. & N. 210, S. C. in Ex. Cb., nom. Graves v. Legg ; 
 Buckle V. Knoop, 36 L. J., Ex. 49 ; S. C. aflf. in Ex. Cb. id. 223.- See post, 
 § 1160, et seq. 
 
190 PEESUMPTIONS FOUNBED ON COURSE OF BUSINESS. [PAET I, 
 
 with the rules by which such brokers are governed.^ But this 
 doctrine will not be carried too far ; ^ and therefore where goods 
 were shipped at Liverpool, and the bill of lading was indorsed to 
 parties residing in New South Wales, evidence of a local usage in 
 Liverpool, which was tendered with the view of affecting the con- 
 struction of the written contract, was held to be inadmissible as 
 against the indorsees, in the absence of proof that they were 
 acquainted with the usage.^ So, it has on several occasions been 
 ruled that " Lloyd's " is not a market within the rule, and that the 
 usage there prevalent among insurance brokers, is not such a 
 general usage as to bind merchants and shipowners who are un- 
 acquainted with its existence.* It may also admit of some doubt, 
 whether the doctrine would be held to apply in its fall force to 
 cases of maritime insurance, as authorities ^ are not wanting, which, 
 in the language of Lord Wensleydale, " look the other way." ^ 
 
 § 182. Again, if letters or notices properly directed to a gentle- § 143 
 man be left with his servant, it is only reasonable to presume, 
 prima facie, that they reached his hands.''' The fact, too, of send- 
 
 ' Sutton V. Tatliam, 10 A. & E. 27 ; recognised in Bayliife v. Butterworth, 
 1 Ex. R. 425 ; Pollock v. Stables, 12 Q. B. 765 ; Bayley v. Wilkins, 7 Com. B. 
 886 ; Taylor v. Stray, 2 Com. B., N. S. 175 ; Hodgkinson v. Kelly, 37 L. J., 
 Ch. 837, per Ld. EomiUy, M. R. ; 6 Law Eep., Eq. 496, S. C. ; Coles v. Bris- 
 towe, 4 Law Rep., Ch. Ap. 3 ; 38 L. J., Ch. 81, S. C. ; Bowring v. Shepherd, 
 40 L. J., Q. B. 129 ; Grissell v. Biistowe, 38 L. J., C. P. 10 ; 4 Law Rep., C. P. 
 36, S. C. in Ex. Ch. ; Duncan v. HiU, 40 L. J., Ex. 137 ; 6 Law Rep., Ex. 255, 
 S. C. See Merry v. NiokaUs, 7 Law Rep., Ch. Ap. 733 ; 41 L. J., Ch. 767, 
 S. C. ; and Nickalls v. Merry, 7 Law Rep., H. L. 530 ; and 45 L. J., Ch. 
 575, S. C. in Dom Proo. 
 
 2 See Robinson v. Mollett, 7 Law Rep., H. L. 802. 
 
 3 Kirohner v. Venus, 12 Moo. P. C. R. 361. But see The Steamship Co. 
 Norden v. Dempsey, 45 L. J., C. P. 764. 
 
 " Sweeting d. Pearce, 7 Com. B., N. S. 449 ; 9 Com. B., N. S. 534, and 
 30 L. J., C. P. 109, S. C. in Ex. Ch. ; Scott v. Irvmg, 1 B. & Ad. 605 ; 
 Todd V. Reid, 4 B. & A. 210 ; Gabay v. Lloyd, 3 B. & C. 793 ; 5 D. & R 
 641, S. C. 
 
 ' Bartlett v. Pentland, 10 B. & C. 760 ; Gabay v. Lloyd, 3 B. & C. 793. 
 
 « Bayliffe v. Butterworth, 1 Ex. R. 428 ; 5 Rail. Cas. 287, S. C. 
 
 ' Macgregor v. Keily, 3 Ex. R. 794. This presumption is sometimes conclu- 
 sive, as, for instance, in the case of a notice to quit served at the tenant's house 
 on one of his servants. Tanham v. Nicholson, 5 Law Rep., H. L. 561 ; I. R. 6 
 C. L. 188, S. C. per Dom. Proo. reversing S. C. as reported in I. R. 4 C. L. 185. 
 
CHAP.- v.] ACCURATE WORKING OF SCIENTIFIC INSTRUMENTS. 191 
 
 ing a letter to the post-office will in general be regarded by a jury- 
 as presumptively proved, if it be shown to have been handed to, or 
 left -with, the clerk, whose duty it was in the ordinary course of 
 business to carry letters to the post, and if he can declare that, 
 although he has no recollection of the particular letter, he invari- 
 ably took to the post-office all letters that either were delivered to 
 him, or were deposited in a certain place for that purpose.^ 
 
 § 183. Akin to this presumption is that which is sometimes re- § 148a 
 cognised with respect to the working accuracy of certain scientific 
 instruments. For example, a jury would be ad-vised, in the absence 
 of evidence to the contrary, to rely on the general correctness of a 
 watch or a clock, which had been consulted for the purpose of fixing 
 the time when a certain event happened. So, a thermometer would 
 be regarded as a sufficiently safe indication of the heat of any liquid 
 in which it had been immersed, and a pedometer might be used as 
 evidence of the distance between two places which had been 
 traversed by the wearer. Blood stains are every day detected by 
 means of known chemical tests. So, aneroids, anemometers, and 
 a variety of other ingenious contrivances for detecting different 
 matters, will occasionally play an important part as furnishing pre- 
 sumptive proof in Courts of Justice. In a few instances this mode 
 of proof has been recognised by the Legislature. Thus, under 
 " The Gas Works Clauses Act, 1871," and " The Pubhc Health 
 Act, 1875," the register of a gas or water meter " shall be prima 
 facie evidence of the quantity " of gas or water consumed.^ 
 
 § 184. The law of partnership recognises certain presumptions, § 149 
 but before referring to these it will be convenient to notice one 
 which, — contrary to former decisions,^ — is no longer regarded as of 
 binding force. Prior to the year 1860, the mere fact of participation 
 
 1 Skilbeck v. Garbett, 7 Q. B. 846 ; Hetherington v. Kemp, 4 Camp. 193 ; 
 Ward V. Ld. Londesborougli, 12 Com. B. 252 ; Spencer v. Thompson, 6 Jr. 
 Law R., N. S. 537, 565. So, in Scotland, "-where there is proof of the 
 reoTilar practice of a house of business to despatch its letters in a particular 
 manner to the post-office, it is not necessary to prove that the indi\'idual 
 letter in question was so despatched." Dickson, Ev. § 6, and cases cited 
 in n. e. 2 34 & 35 v., c. 41, § 20 ; 38 & 39 V., c. 55, § 59. 
 
 3 Waugh V. Carver, 2 H. Bl. 235 ; Pott v. Eyton, 3 Com. B. 32. 
 
192 PEESUMPTIONS IN LAW OF PARTNERSHIP. [PAET I. 
 
 in the net profits of a business was held, by vittiae of an arbitrary 
 presumption of law, to constitute a partnership. In Cox v. Hick- 
 man,i however, the House of Lords denied the existence of any such 
 legal presumption ; and the result of that decision would seem to be, 
 that, although a right to share in the profits of trade is a strong 
 test of partnership, and even when standing alone will justify a jury 
 in presuming its existence, yet the question whether or not several 
 persons are partners must in each case depend on the real intention 
 and contract of the parties.^ Turning now to the presumptions 
 which still prevail in partnership law, it may first be noticed, that, — 
 in the absence of any contract between partners, or any dealing 
 from which a contract may be impHed, — the common law, as best in- 
 terpreted both in England,^ and in America,* would seem to infer, — 
 like the civil law,^ — that the business has been conducted on terms 
 of an equal partnership ; and, consequently, that each partner has a 
 right to insist on an equal participation in profit and loss. Lord 
 Wensleydale has even held at Nisi Prius, that, in the absence of all 
 evidence on the subject, partners must be presumed to be interested 
 in equal proportions in the partnership stock.^ 
 
 § 185. Again, every member in an ordinary trading copartnership § 149 
 is presumed in law to be intrusted with a general authority to enter 
 into contracts on behalf of the firm for the usual purposes of the 
 business, and, consequently, to be empowered to borrow money, and 
 contract or pay debts, on account of the partnership, and to make, 
 draw, indorse, and accept negotiable securities in the firm's name.^ 
 
 1 8 H. of L. Cas. 268. See, also, 28 & 29 V., c. 86. 
 
 2 Mollwo, March & Co. v. The Ct. of Wards, 4 Law Rep., P. C. 419, 435 ; 
 Ross V. Parkyns, 20 Law Rep., Eq. 331, per Jessel, M. R. ; 44 L. J., Ch. 610, S. C. ; 
 Pooley V. Driver, L. R. 5 Ch. D. 458, per Jessel, M. R. ; 46 L. J., Ch. 466, S. C. 
 
 ' Stewart v. Forbes, 1 Hall & T. 461, 472, per Ld. Cottenham, C, recognising 
 the ruling of Ld. Eldon in Peacock v. Peacock, 16 Ves. 49, 56 ; Webster ■». Bray, 
 7 Hare, 159 ; M'Gregor v. Bainbrigge, id. 164, n. a ; Robinson u Anderson, 20 
 Beav. 98 ; 7 De Gex, M. & G. 239, S. C. ; ColHns v. Jackson, 31 Beav. 645 ; 
 Story, Part., § 24. But see contra Peacock ii. Peacock, 2 Camp. 45, per Ld. 
 EUenborough ; and Tompson v. Williamson, 7 Bligh, 432. 
 
 ■' Gould V. Gould, 6 Wend. 263. 
 
 * Inst. Ub. 3, tit. 26, § 1 ; Dig., Ub. 17, tit. 2, § 29. 
 
 " Farrar v. Beswick, 1 M. & Rob. 527. 
 
 !■ Jenkins v. Morris, 16 M. & W. 877, 880 ; Ex parte Darlington, &c. Bank. Co., 
 
CHAP, v.] PRESUMPTIONS RESPECTING PARTNERS AGENTS. 193 
 
 Similar powers, however, are not presumed to exist in the case of 
 mining copartnerships ; and it is now determined that one of 
 several co-adventurers in a mine has no authority, as such, to nego- 
 tiate any hill on hehalf of his fellows,^ or to pledge the credit of the 
 general hody for money borrowed for the purposes of the concern.^ 
 Still less have the members of a firm, which is not established for 
 trading purposes, as, for example, a firm of solicitors, any implied 
 authority to bind each other by drawing or indorsing bills of 
 exchange, or making promissory notes or even post-dated cheques.* 
 Neither in an ordinary partnership has one member of the firm 
 power to bind the others by contracts out of the apparent mode of 
 the partnership dealings, merely because they are reasonable acts 
 towards effecting the partnership purposes ; * and therefore, where a 
 partner signed a guarantee in the name of the firm for the pur- 
 pose of giving effect to a transaction within the scope of the partner- 
 ship dealings, the court, in the absence of proof of any usage, and 
 of any recognition by the other parties, refused to infer that he was 
 authorised to act in this manner, and held that the firm was not 
 bound by the guarantee.^ Had any evidence been given of the 
 adoption of the act by the other partners, the result would, of 
 course, have been different.^ 
 
 § 186. With respect to the law of agency, it may be noted, that § 149a 
 when the seller deals with an agent resident in this country, and 
 acting for a foreign principal, the ordinary presumption is that he 
 
 re Riches & Marshall's Trust Deed, 4 De Gex, J. & S. 581 ; Story, Part., §§102, 
 124, 125 ; Bk. of Australasia v. Breillat, 6 Moo. P. C. R. 152, 193, 194. See 
 Maclae v. Sutherland, 3 E. & B. 1. 
 
 ' Dickinson v. Valpy, 10 B. & C. 128 ; 5 M. & E. 126, S. C. 
 
 ^ Ricketts v. Bennett, 4 Com. B. 686 ; Burmester v. Norris, 6 Ex. E. 796. 
 See, In re German Mining Co., 22 L. J., Ch. 926 ; and § 1185, ad fin. 
 
 3 Forster v. Mackreth, 2 Law E., Ex. 163 ; 36 L. J., Ex. 94, S. C. ; Hedley 
 u Bainbridge, 3 Q. B. 316 ; 11 L. J., Q. B. 293, S. C. 
 
 '' See Bishop v. Countess of Jersey, 2 Drew. 143. 
 
 * Brettel v. Williams, 4 Ex. E. 623 ; overruhng Ex parte Gardom, 15 Ves. 
 286. See, also, Hasleham v. Young, 5 Q. B. 833 ; Duncan v. Lowndes, 3 Camp. 
 478. One partner has no implied authority to bind another by submission to 
 arbitration, Hatton v. Eoyle, 27 L. J., Ex. 468. 
 
 « Sandilands v. Marsh, 2 B. & A. 673. See Maclae u Sutherland, 3 E. 
 &B. 1. 
 
194 PRESUMPTIONS RESPECTING AGENTS — CARRIERS. [PART I. 
 
 does not contract with the foreigner, but that he simply trusts the 
 party with whom he actually makes the bargain.^ This rule, how- 
 ever, is by no means what Mr. Justice Story represents it to be, 
 " a presumption so strong, as almost to amount to a conclusive pre- 
 sumption of law; " ^ but it is at best a mere presumption of fact, 
 liable to be rebutted by any evidence, whether extrinsic or intrinsic, 
 which tends to show that credit was really intended to be given to 
 the foreign principal.^ 
 
 § 187. One or two presumptions may here be mentioned, which § 150 
 attach to particular trades, and which, though apparently harsh, 
 are in reality founded on just principles of public policy.* For 
 instance, if goods intrusted to a common carrier be lost or damaged, 
 the law will conclusively presume that the carrier has been guilty of 
 negligence, unless he can show that the loss or damage was occa- 
 eioned by what is technically called " the act of God," or by the 
 Queen's enemies.^ So, the loss or damage of luggage, while under 
 the custody of a stage-coachman, a cabman, or even a gratuitous 
 bailee, will raise a prima facie inference of want of care, which, in 
 the absence of evidence to the contrary, will render the bailee liable 
 to an action ^ So, when chattels, not exceeding in value the sum 
 of thirty pounds,'^ have been deposited in a public inn, — which term 
 
 1 Heald v. Kenworthy, 10 Ex. E. 743, per Parke, B. 
 
 2 Story, Agen., § 290. 
 
 3 Green v. Kopke, 18 Com. B. 549 ; Mahoney v. Kekul6, 14 Com. B. 390. 
 ^ Best, Bv. 528—530. 
 
 ^ Ross V. Hill, 2 Com. B. 890, per Tindal, C. J. ; Coggs v. Bernard, 2 
 Ld. Bay. 918, per Ld. Holt ; 1 Smith, L. C. IVI, S. C. See post, § 1172. 
 The Scotch law on this subject is now embodied in § 17 of 19 & 20 V. c. 60 
 which enacts, that "aU carriers for hire of goods within Scotland shaU be 
 liable to make good to the owner of such goods all losses arising from 
 accidental fire, whUe such goods were in the custody or possession of such 
 carriers." 
 
 8 Ross V. Hill, 2 Com. B. 877 ; Harris v. Costar, 1 C. & P. 637 ; Coggs 
 V. Bernard, 2 Ld. Ray. 909. See Gt. North. Ry. Co. v. Sheppaxd, 8 Ex. 
 E. 30. 
 
 ' The common law liability of innkeepers has been restricted by the Act of 
 26 & 27 v., c. 41, which enacts, in § 1, that no innkeeper shaU be liable to 
 make good to any guest any loss or injury to property brought to his inn, "not 
 being a horse or other live animal, or any gear appertaining thereto, or any 
 carriage," to a greater amo^^nt than thirty pounds, except, 1, where such pro- 
 
CHAP, v.] PRESUMPTION RESPECTING INNEEEPEES NEGLIGENCE. 195 
 
 would seem to include an hotel, a tavern, and a coffee-house,^ — and 
 have there been lost or injured, the prima facie presumption is that 
 the loss or injury was occasioned by the negligence, or, at least, 
 through the defect, of the innkeeper or his servants : ^ but on proof 
 that it was caused by the negligence of the guest, the landlord's 
 responsibility will cease.* The salaried manager of an hotel belong- 
 ing to a company, will not be regarded as an "innkeeper" within 
 the scope of this rule, though the hotel license may have been 
 granted to himself personally.* 
 
 § 188. While discussing the subject of negligence, it deserves § 150a 
 notice that the judges will occasionally permit, or even advise, juries 
 to infer negligence from the mere happening of an accident. For 
 example, this course has been pursued where the injury complained 
 of was caused, either by a collision between two railway trains 
 
 peity " shall have been stolen, lost, or injured through, the wilful act, default, 
 or neglect of such innkeeper, or any servant in his employ ; " 2, where such 
 property " shall have heen deposited expressly for safe ciistody with such inn- 
 keeper." The Act then contains a proviso that the innkeeper may require, as a 
 condition of his liability, that the property shall be deposited in a box, or other 
 receptacle, fastened and sealed by the depositor. §§ 2 & 3 respectively enact, 
 that no innkeeper shall be entitled to the benefit of this Act, who refuses to 
 receive for safe custody any property of his guest, or who omits to exhibit " in 
 a conspicuous part of the hall or entrance to his inn " a printed copy of the first 
 section of the Act. See, as to this last point, Spice v. Bacon, per Ct. of App., 
 26 June, 1877. 
 
 1 Thompson v. Lacy, 3 B. & A. 283 ; Turrill v. Crawley, 13 Q. B. 197. § 4 
 of 26 & 27 v., c. 41, interprets the word "inn" as meaning "any hotel, inn, 
 tavern, public-house, or other place of refreshment, the keeper of which is now 
 by law responsible for the goods and property of his guests.'' See Doe v. 
 Laming, 4 Camp. 76 ; and E. u. Rymer, L. R, 2 Q. B. D. 136 ; 13 Cox, 378, 
 S. C. A boarding-house or lodging-house keeper has no duty imposed upon 
 him by law to take care of his lodgers' goods. Holder v. Soulby, 29 L. J., 
 C. P. 246 ; 8 Com. B., N. S. 254, S. C. ; Dansey v. Richardson, 3 E. & B. 144.' 
 
 2 Dawson v. Chamney, 5 Q. B. 164 ; Morgan v. Eavey, 6 H. & N. 265 ; 30 
 L. J., Ex. 131, S. C. ; Richmond v. Smith, 9 B'. & C. 9 ; Burgess u. Clements, 
 4 M. & Sel. 306 ; Armistead v. WUde, 17 Q. B. 261 ; Calye's case, 8 Eep. 32 a ; 
 1 Smith, L. C. 102, S. C. ; Day v. Bather, 2 H. & C. 14. 
 
 3 Armistead v. Wilde, 17 Q. B. 261 ; Cashill n. Wright, 6 E. & B. 891 ; 
 Morgan v. Eavey, 2 Fost. & Fin. 283 ; Filipowski v. Merryweather, id. 285 ■ 
 Oppenheim v. White Lion Hotel Co., 40 L. J., C. P. 231 ; 6 Law Rep., C. P. 
 515, S. C. ; Spice v. Bacon, per Ct. of App., 26 June, 1877. 
 
 - Dixon 1). Birch, 42 L. J., Ex. 135. 
 
 2 
 
1% PEESUMPTIONS EESPECTING NEGLIGENCE INFANTS. [PAET I. 
 
 belonging to the same company/ or by a railway carriage having, 
 during the journey, unaccountably left the rails.^ So, where a man 
 was hurt by a barrel of flour falling on him out of a warehouse 
 window while he was walking in the street below, the court held 
 that it was unnecessary for him, in suing the warehouseman for 
 negligence, to prove what actually occasioned the fall of the barrel.^ 
 The accident was one which, in the ordinary course of things, did 
 not happen to those who used proper care in the management of 
 their business, and therefore it afi'orded, in itself, reasonable 
 evidence of negligence, in the absence of any explanation by defen- 
 dant.* On the other hand, in a case where it appeared that a ladder, 
 inside a private house, had, from some unexplained cause, fallen 
 against an upper window, and broken it, and the glass in falling 
 had damaged the eye of a person who was passing by the house at 
 the time, it was held that the proof of these facts alone was insuffi- 
 cient to fix negligence on the owner of the house. ^ 
 
 § 189. Other disputable presumptions arise in respect of infants. § 151 
 Thus, during the interval between seven years and fourteen, infants 
 are prima facie presumed to be unacquainted with guilt, and there- 
 fore cannot be convicted, unless the jury shall be satisfied from the 
 evidence, that, at the time when the ofi'ence was committed, they 
 had a guilty knowledge that they were doing wrong.^ This rule 
 though perhaps originally adopted in favorem vitas with respect to 
 capital off'ences only,^ has of late years been expressly held appli- 
 cable to all felonies ; ^ and there seems no reason why, on principle, 
 it should not also be extended to misdemeanors, with the exception 
 
 ' Skinner v. Lond. & Brigh. Ey. Co., 5 Ex. R. 787. 
 
 ^ Flannery v. Waterf. & L. Ey. Co., I. K. 11, C. L. 30. 
 
 ' Byrne v. Boadle, 2 H. & C. 722 ; 33 L. J., Ex. 13, S. 0. ; Scott v. Lond 
 Dock Co., 34 L. J., Ex. 220 ; 3 H. & C. 596, S. C. ; Kearney v. Lond. & 
 Brigh. Ry. Co., 5 Law Rep., Q. B. 411 ; 39 L. J., Q. B. 200, S. C. ; 6 Law Rep 
 Q. B. 759, & 40 L. J., Q. B. 285, S. C. in Ex. Ch. 
 
 « Id. 
 
 * Higgs V. Maynard, 1 H. & R. 581 ; Welfare v. Lond. & Brigli. Ry. Co., 38 
 L. J., Q. B. 241 ; 4 Law Rep., Q. B. 693, S. C. See Moffatt v. Bateman, 3 Law 
 Rep., P. C. 115. 
 
 ° Russ. C. & M. 1—5. 
 
 ' 1 Hale, c. 3. 
 
 « R. 11. Owen, 4 C. & P. 236. 
 
CHAP, v.] INFANTS MAREIED WOMEN. 197 
 
 perhaps, of those cases where an infant occupier of lands, charged 
 with the repair of a bridge or road, might be held liable to an indict- 
 ment for non-repair.^ The test of juvenile exemption propounded 
 by Lord Hale, is whether the accused was capable of discerning 
 " between good and evil; " ^ words suf&ciently indefinite, since they 
 may apply either to legal responsibility or to moral guilt ; ^ and 
 many children of tender years, though perfectly well aware that it is 
 wrong to take what does not belong to them, and who are conse- 
 quently, according to this test, fit subjects for punishment, may yet 
 be only partially acquainted with the sinful nature of theft, and be 
 wholly ignorant that it is a crime against the law of the land. It 
 seems, therefore, to be a law savouring of harshness which permits 
 a child, under such circumstances, to suffer the same punishment 
 as it inflicts upon a grown person. Indeed, the loose and unsatis- 
 factory manner in which this merciful presumption of infantine 
 innocence is practically rebutted, cannot be more clearly exposed 
 than by referring to a statistical return of juvenile delinquents, 
 which was published some years back, and by which it appears 
 that, out of 297 children under the age of fifteen, committed in 
 the metropolis alone during a single year, 238 were actually con- 
 victed ; and of these no fewer than 36 were sentenced to transporta- 
 tion.* If in all these cases malitia supplevit setatem, no one will 
 dispute but that malice has had much to supply. 
 
 § 190. With respect to married women, also, the law recognises § 152 
 certain presumptions. Thus, if a wife commit a felony,^ other than 
 
 1 R. V. Sutton, 3 A. & E. 597, 612. 
 = 1 Hale, 27. 
 
 3 See 30 Law Mag. 24, and article on M'Naugliten's trial in Leg. Obs. for 
 May 27, 1843, as to tlie dangerous and unpMlosopliical nature of this test. 
 
 • Porter's Statist. TaMes, part 14, pp. 149, 151, 152, 153. In 1844, 1596 
 children, under the age of fifteen, were committed for trial in England and 
 Wales. Porter's Progress of Nation, p. 656. 
 
 * Some doubt exists as to the crimes exempted from this presumption. " Thus 
 Ld. Hale, in one part of his Pleas of the Crown, vol. i. pp. 45, 47, asserts that 
 the presumption is recognised in all cases excepting treason and murder ; but 
 in later passages, id. 434, 516, he excludes from its operation manslaughter also, 
 and cites as his authority a passage from Dalton, in which manslaughter is not 
 mentioned, Dalt. c. 104, p. 267 ; new ed. c. 157, p. 503. Mr. Serjt. Hawkins 
 makes the exceptions consist of treason, murder, and robbery, 1 Hawk. c. 1 
 
198 COEBOION OF MARRIED WOMEN. [PART I. 
 
 treason or homicide/ or, perhaps, highway robbery,^ in company 
 with her husband, the law presumes that she acted under his 
 coercion, and consequently without any guilty intent, unless the 
 fact of non-coercion be distinctly proved. This presumption appears, 
 on some occasions, to have been considered conclusive, and is still 
 practically regarded in no very different light, especially when the 
 crime is of a flagrant character ; ^ but the better opinion seems to 
 be, that in every case, the presumption may noiu be rebutted by 
 positive proof that the woman acted as a free agent ; * and in one 
 case that was much discussed,^ the Irish judges appear to have con- 
 sidered that such positive proof was not required, but that the 
 question was always one to be determined by the jury on the 
 evidence submitted to them. It seems that a married woman can- 
 not be convicted under any Circumstances as a receiver of stolen 
 goods, when the property has been taken by her husband, and given 
 to her by him,^ neither can she be convicted of stealing her husband's 
 goods, though she may have committed adultery and have absconded 
 with her paramour, taking the goods with her ; but this rule, of 
 course, does not depend on the doctrine under discussion, but 
 
 p. 4 ; wMle Mr. Justice Blackstone, in the first vol. of Ms Comm. mentions 
 only treason and murder, c. 15 ; and in the 4tli vol., c. 2, excepts also crimes 
 that are mala in se, and prohibited by the law of nature, as murder and the 
 like. * * We would gladly see the exception extended to aU capital felonies, 
 if not to all crimes punishable with transportation, and thus abolish a rule of 
 law, which was originally founded on doctrines that no longer prevail, and 
 which every married man knows is often diametrically opposed to the fact." — 
 30 Law Mag. pp. 9, 11. 
 
 1 See R. V. Manning, 2 C. & Kir. 887, 903. 
 
 2 In E. v. Stapleton, 1 Jebb, C. C. 93, the majority of the judges appeared to 
 think that this presumption did not apply to cases of highway robbery. Neither 
 does it apply to a case of felonious wounding with intent to disflguie, or to do 
 grievous bodily harm, R. v. Smith, 1 Dear. & Bell, 553 ; 8 Cox, 27, S. C. But 
 see R. u Torpey, 12 Cox, 45. 
 
 3 1 Hale, 45 ; E. v. Archer, 1 Moo. C. C. 143. See E. v. Torpey, 12 Cox, 45. 
 ' See 7 Eep. of Cri. Law Com. p. 21 ; 30 Law Mag. pp. 9—12 ; E. v. Hughes, 
 
 2 Lew. 0. C. 229 ; 1 Euss. C. & M. 22, S. C. ; E. v. Pollard, 8 C. & P. 553, per 
 Tmdal, C. J., and Vaughan, J., in a case of arson where the husband was bed- 
 ridden. See also E. ,;. Smith, Ir. Cir. E. 459. 
 
 = E. .„. Stapleton, I Jebb, C. C. 93. 
 
 " E. II. Brooks, Pearce & D. 184. See E. v. Wardropor, 1 Bell, C. C. 249 ■ 
 8 Cox, 284, S. C. 
 
CHAP, v.] PRESUMPTIVE AGENCY OF MARRIED WOMEN. 199 
 
 simply rests on the principle that a man and his wife are one in the 
 eye of the law ^ 
 
 § 19l. Whether the doctrine of coercion extends to any misde- § 152 
 meanors may admit of some doubt, but the better opinion seems to 
 be, that, proyided the misdemeanor be of a serious nature, as, for 
 instance, the uttering of base coin,^ the wife will be protected in 
 like manner as in cases of felony, although it has been distinctly 
 held that the protection does not extend to assaults and batteries,^ 
 or to the offence of keeping a brothel.* Indeed, it is probable that in 
 all inferior misdemeanors, this presumption, — if admitted at all, — 
 would be held liable to be defeated by far less stringent evidence 
 of the wife's active co-operation than would suffice in cases of 
 felony.^ 
 
 § 192. If an action be brought against a husband for goods § ^^^ 
 supplied to his family or his wife, on the order of the latter, the 
 jury will do well to infer, in the absence of evidence to the con- 
 trary, that the wife gave the order as the husband's agent, provided 
 she were living with him at the time, and the articles were neither 
 excessive in quantity, improvident in quality, nor extravagant in 
 prioe.^ If the debt has been incurred by the wife while living 
 separate from her husband, the doctrine of presumptive agency will 
 depend on the cause of separation. If the wife has been turned out 
 
 1 E. i>. Kenny, 46 L. J., M. 0. 156 ; 13 Cox, 397 ; and L. R. 2 Q. B. D. 
 307, S. 0. 
 
 2 E. V. Conolly, 2 Lew. C. C. 229, per Bayley, J. ; E. v. Price, 8 C. & P. 19 ; 
 Anon., Ir. Cii. E. 374. 
 
 3 E. V. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, S. C. ; E. v. Ingram, 1 
 Salk. 384. ^ E. v. WiUiams, 10 Mod. 63 ; 4 Bl. Com. 29. 
 
 6 E. V. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, S. C. 
 
 ' Lane v. Ironmonger, 13 M. & W. 368, recognising Freestone v. Butcher, 
 9 C. & P. 647, per Ld. Abinger ; Atkitis v. Cuiwood, 7 C. & P. 757 ; Jolmston 
 V. Sumner, 3 H. & N. 261 ; Morgan v. Chetwynd, 4 Post. & Fia. 451, per 
 Cookbum, C. J. ; Waitlunan v. Wakefield, 1 Camp. 120 ; Manby v. Scott, 
 
 2 Smitb, L. C. 419—422, in n. See Reneaux v. Teakle, 8 Ex. E. 680 ; 
 PbUipson V. Hayter, 40 L. J., C. P. 14 ; 6 Law Eep., C. P. 38, S. C. nom. 
 PhiUipson v. Hayter ; Moylan v. Nolan, 17 Ir. Law E., N. S. 427 ; Eeid v. 
 Teakle, 13 Com. B. 627 ; Euddock ii. Marsb, 1 H. & N. 601 ; Jewsbury v. 
 Newbold, 26 L. J., Ex. 247 ; and post, §§ 770, 771. But see JoUy v. Eees, 
 33 L. J., C. P. 177 ; 15 Com. B., N. S. 628, S. C. ; and Eyan v. Nolan, I. R., 
 
 3 C. L. 319. 
 
200 PEESUMPTIVE AGENCY OF MAEErED WOMEN. [PAET I. 
 
 of doors or deserted by the husband, or if she has left him because 
 his misconduct was such as to render it impossible for her to remam 
 under his roof,i she has by law an implied authority to pledge his 
 credit for necessaries,^ whether supplied to herself or to her infant 
 child,^ unless by an adequate * allowance from her husband, or by 
 the terms of her settlement, or perhaps by her own exertions, she 
 be in a position to provide for her maintenance.^ On the other 
 hand, a wife who leaves her husband without his consent, and with- 
 out justifiable cause, has no authority whatever to bind him by her 
 contracts ; ^ and where the husband and wife have parted by mutual 
 consent, and the wife has afterwards incurred a debt for articles 
 suitable to her degree, the creditor, before he can recover from the 
 husband, must affirmatively show either an express authority from 
 him, or at least such circumstances as will justify the jury in im- 
 plying an authority ; for instance, that the wife has been left with- 
 out adequate means of support, or that an allowance promised to 
 her by the husband had not been paid.''' It may here be noticed 
 that the authority of a wife to pledge her husband's credit is no 
 greater when he is a lunatic than when he is sane.^ 
 
 § 193. Though a wife may often have an implied authority from § 153a 
 her husband to procure goods on credit, an English court of law 
 would never, under the old system, presume that she was his agent 
 for the purpose of borrowing money; and even though she were 
 turned out of doors without any misconduct on her part, and without 
 any means of livelihood, her husband could not be held liable at law 
 
 1 Bazeley v. Forder, 3 Law Rep., Q. B. 562, per BlackbiTrn, J. ; 9 B. & S. 
 602, S. C, and 37 L. J., Q. B. 240, S. C. nom. Baseley v. Forder. 
 
 2 Wilson V. Ford, 3 Law Rep., Ex. 63 ; 37 L. J., Ex. 60, S. C. As to howfai 
 tMs doctrine applies to cases where the wife has retained a solicitor to act for 
 her in legal proceedings against her hushand, see Mecredy v. Taylor, I. R. 7 C. 
 L. 256 ; Shepherd v. Mackoul, 3 Camp. 326 ; Brown v. Ackroyd, 5 E. & B. 
 819]; Grindell v. Godmond, 5 A. & E. 755 ; Ex. p. Moore, 1 De Gex, 173. 
 
 3 Bazeley v. Forder, 3 Law Rep,, Q. B. 559 ; 9 B. & S. 599; S. C. ; and 37 
 L. J,, Q. B. 237, S. 0. nom. Baseley v. Forder, 
 
 < Baker v. Sampson, 14 Com. B., N. S. 383. 
 
 * Johnston v. Sumner, 3 H. & N. 261. " Id. 
 
 ' Johnston v. Sumner, 3 H. & N. 261 ; Biffin v. Bignell, 7 H. & N. 877. See 
 Manhy v. Scott, 2 Smith, L. C. 422—430. 
 
 » Richardson v. Du Bois, 5 Law Rep., Q. B., 51 ; 39 L. J., Q, B. 69 ; and 10 
 B. & S. 830, S. 0. 
 
CHAP, v.] PRESUMPTIONS AS TO IMPOTENCE SENIORITY. 201 
 
 for money lent to her, notwithstanding she might have expended the 
 whole of it in procuring the actual necessaries of life.^ As this 
 doctrine savoured rather of the common law than of common sense, 
 it found no countenance in courts of equity ; and a creditor who had 
 been nonsuited on the above ground by a learned justice or baron, 
 might still have obtained his rights,— 7though tardily, — at the hands 
 of a vice-chancellor.^ A more reputable state of the law at present 
 prevails, and the judges, — rejecting the distinction between accredit- 
 ing a wife to supply herself with necessaries, and accrediting a 
 " neighbour " to supply a wife with money for the same purpose, — 
 must henceforth adopt the rules of equity as their guide in this 
 matter.^ 
 
 § 194. In suits for nullity of marriage on the ground of incurable § 153b 
 impotence, the Matrimonial Court has of old time adopted for its 
 guidance a somewhat fantastic rule ; for, where the marriage has 
 not been consummated, and no visible defect is proved to exist in 
 either party,* impotence is presumed after, but not before, the ex- 
 piration of three years of ineffectual cohabitation.^ This rule, how- 
 ever, only applies where the impotence is left to be presumed from 
 continual non-consummation ; for the court vrill never call in its aid, 
 and still less rely on its twilight guidance, when other evidence on 
 the subject can be obtained.^ 
 
 § 195. The presumptions with respect to parent and child are § 154 
 not very important. The law so far recognises the superiority 
 of age over youth, that if a parent and a child both bear the 
 same Christian and surname, and this name occur in an instru- 
 ment without any addition of "senior" or "junior," it will be 
 
 » Knox V. Bushell, 3 Com. B., N. S. 334 
 
 2 Jenner v. Morris, 30 L. J., Ch. 361 ; 2 De Gex, F. & J. 45, S. C. See 
 Davidson v. Wood, 2 New R. 15, per Wood, V.-C. ; S. C. cor. Lds. Js., 1 De 
 Gex, J. & S. 465, nom. In re Wood's estate. 
 
 3 This was the old law in Ireland, Johnson v. Manning, 12 Ir. Law R., 
 N. S. 148. 
 
 ■• See D., falsely caUed P. v. F., 34 L. J., Pr. & Mat. 66 ; B., falsely caUed 
 B. V. B., I. R. 9 Eq. 551. 
 
 5 M., falsely called H. v. H., 33 L. J., Pr. & Mat. 159 ; 3 Swab. & Trist. 517, 
 S. C. ; Lewis, falsely called Hayward o. Playward, 35 L. J., Pr. & Mat. 105, in 
 Dom. Proc. " F., falsely called D. v. D., 4 Swab. & Trist. 86. 
 
202 PRESUMPTIONS IN FAVOUE OF IMMUTABILITY. [PAKT I. 
 
 presumed, in the absence of evidence to the contrary, that the 
 parent was intended.^ Thus, if a legacy be left, or a note be 
 made payable, to John Holland, and there be two of that name, 
 father and son, the law will, prima facie, presume that the father 
 is respectively the legatee or payee ; but this presumption may 
 readily be rebutted, as, for i;istance, in the case of the wUl, by 
 proving that the testator did not know the father,^ or in the case 
 of the note, by showing that the son had had it in his possession, 
 or had indorsed it, or had given instructions to bring an action 
 upon it.3 The mere moral obHgation of a parent to maintain his 
 child affords no legal inference of a promise to pay a debt con- 
 tracted by him even for necessaries.* 
 
 § 196.^ Other presumptions are founded on the experienced § 155 
 continuance, or immutability, for a longer or shorter period, of 
 human affairs.^ When, therefore, the existence of a person, or 
 personal relation, or a state of things, is once established by 
 proof, the law presumes that the person, relation, or state of 
 things continues to exist as before, till the contrary is shown, or 
 till a different presumption is raised, from the nature of the sub- ^ 
 ject in question.'^ Thus, where a jury found that a certain custom 
 existed up to the year 1689, the court held, that, in the absence 
 of all evidence of its abolition, this was in legal effect a verdict 
 finding that the custom still subsisted at the time of the trial 
 in 1840.^ So, in settlement cases, the court will presume that 
 a son, though long since arrived at manhood, has continued 
 unemancipated, as in the days of his infancy, unless there be some 
 
 ' StelDbiiig V. Spicer, 8 Com. B. 827 ; Lepiot v. Browne, 1 Salk. 7 ; Sweeting 
 v. Fowler, 1 Stark. E. 106 ; Jarmain v. Hooper, 6 M. & Gr. 827. 
 
 ^ Lepiot V. Browne, 1 Salk. 7. 
 
 3 Stebbing v. Spicer, 8 Com. B. 827 ; Sweeting v. Fowler, 1 Stark. R. 106. 
 
 ■• Shelton v. Springett, 11 Com. B. 452; recognising Mortimore v. Wright, 
 6 M. & W. 482, and overruling Baker v. Keene, 2 Stark. R. 501 ; Blackburn 
 V. Maokey, 1 C. & P. 1 ; Law v. Wilkin, 6 A. & B. 718 ; 1 N. & P. 697, S. C. 
 See Bazeley v. Forder, 3 Law Rep., Q. B. 559; 9 B. & S. 599, S. C, 37 L. J., 
 Q. B. 237, S. C. nom. Baseley v. Forder. 
 
 ^ Gr. Ev. § 41, as to first seven lines. « 6 Com. B. 630. 
 
 ' See Price v. Price, 16 M. & W. 232, 240—242, overruling Mercer d. Cheese, 
 4 M. & Gr. 804. See, also, The Gananogue, 1 Lush. Adm. R. 448. 
 
 » Scales V. Key, 11 A. & E. 819. 
 
CHAP, v.] PEESUMPTIONS IN FAVOUR OF IMMUTABILITY. 203 
 
 evidence to rebut this presumption, as, for instance, if proof be 
 given that he has separated from his family.^ So, in the absence 
 of evidence to the contrary, the settlement of a pauper,^ or the 
 appointment of a party to an official situation, will,^ at least for 
 a reasonable time, be presumed to continue in force. So, a 
 partnership, agency, tenancy,* or other similar relation, once shown 
 to exist, is presumed to continue, till it is proved to have been 
 dissolved ; and, therefore, where a partnership was admitted to have 
 been in existence in 1816, it was, in the absence of all evidence to 
 the contrary, presumed to be still continuing in 1838.^ So, if a man 
 were on several occasions to authorise his mistress to order goods 
 from a tradesman on his credit, the jury would be amply justified in 
 finding him liable for articles supplied after the termination of the 
 connection, in the absence of any proof that the tradesman had 
 received notice of such termination.^ 
 
 § 197. So, if a debt be shown to have once existed, its continuance § 155 
 will be presumed, in the absence of proof of payment, or some 
 other discharge.'^ So, when the term of partnership has expired, 
 and the partners continue the business without entering into new 
 articles, the law presumes that they intend to be bound by the 
 provisions of the old articles, so far as they apply to the altered 
 circumstances.^ So, where a tenant holds over after the expira- 
 tion of the term, he impliedly holds subject to all the covenants 
 in the lease which are applicable to his new situation ;' and this 
 
 ' E. V. Lilleshall, 7 Q. B. 158, explaining E. v. Oulton, 5 B. & Ad. 958 ; 
 3 N. & M. 62, S. C. 2 B,. ^. Tanner, 1 Esp. 306, per Ashhuist, J. 
 
 3 E. V. Budd, 5 Esp. 230, per Ld. EUenborough. 
 
 * See Pickett v. Packham, 4 Law Eep., Ch. Ap. 190. 
 
 5 Clark V. Alexander, 8 Scott, N. E. 161. See, also, Alderson v. Clay, 1 
 Stark. E. 405 ; Blandy v. De Burgh, 6 Com. B. 623, 630 ; and Parsons v. 
 Hayward, 31 L. J., Ch. 666. So, by the Hindoo law, a femily once joiat is 
 presumed to retain that status, unless evidence can be given to show that it 
 has become divided, Mussumat Cheetha v. Baboo Miheen LaU, 11 Moo. Ind. 
 App. C. 369, 380. e Ryan v. Sams, 12 Q. B. 460. 
 
 ' Jackson v. Irvin, 2 Camp. 50, per Ld. EUenborough. 
 
 8 Clark V. Leach, 32 L. J., Ch. 290 ; 32 Beav. 14, S. 0. ; 1 De Gex, J. & S. 
 409, S. C. See Woods v. Lamb, 35 L. J., Ch. 309, per Wood, V.-C. 
 
 " Torriano v. Young, 6 C. & P. 8 ; Thomas v. Packer, 1 H. & N. 669 ; 23 
 & 24 v., c. 154, § 5, Ir. But see Oakley v. Monck, 34 L. J., Ex. 137 ; 3 H. & 
 
204 PRESUMPTIONS AS TO CONTINUANCE OF LIFE. [PAET I. 
 
 presumption still prevails, though the rent has been advanced/ 
 and though the original lessor has assigned his interest to a third 
 party, or, being a clergyman, has resigned his living, and a fresh 
 incumbent has succeeded him.^ The opinions,^ also, of individuals, 
 once entertained and expressed, and their state of mind, once 
 proved to exist, are presumed to remain unchanged, till the con- 
 trary appears. Thus, all the members of a Christian community- 
 being presumed to entertain the common faith, no man is supposed to 
 disbeUeve the existence and moral government of God, till it is shown 
 from his own declarations.* In like manner, every man is presumed 
 to be of sane mind, till the contrary is shown ; ^ but if any derange- 
 ment or imbecUity is proved or admitted at any particular period, it 
 is presumed to continue, till disproved,^ unless it be obviously of a 
 partial or temporary character.''' 
 
 § 198. So, where a person is once shown to have been living, § 156 
 the law, ia the absence of proof that he has not been heard of 
 within the last seven years, will in general presume that he is still 
 
 C. 706, S. C. ; 35 L. J., Ex. 87, S. C. in. Ex. Ck. ; 1 Law E., Ex. 159 ; and 
 4 H. & C. 251, S. C. 
 
 * Digby V. Atkinson, 4 Camp. 275, per Ld. Ellenborougli ; explained in 
 Jolinson V. St. Peter, Hereford, 4 A. & E. 525, 526. 
 
 2 Hiitton V. Warren, 1 M. & W. 466. See Thetford v. Tyler, 8 Q. B. 95, 
 100, 101. 
 
 3 Gr. Ev. § 42. 
 
 " The State v. Stinson, 7 Law Eep. 383. 
 
 * Dyce Sombre v. Troup, 1 Deane, Ec. E. 38, per Sir J. Dodson. In Sutton 
 V. Sadler, 26 L. J., C. P. 284; 3 Com. B., N. S. 87, S. C, the court held 
 that this presumption was one oi fact, which ought not to influence the jury in 
 a case of conflicting evidence. See, also, Anderson v. Gill, 3 Macq., So. 
 Cas. H. of L. 197, per Ld. Wensleydale ; Crowninshield v. Crowninshield, 2 
 Gray, 524. 
 
 « Att.-Gen. -o. Pamther, 3 Br. C. C. 443; Grimani v. Draper, 6 Ec. & Mar. 
 Cas. 421, 422, 441, per Sir H. Eust ; Johnson v. Plane, id. 457, 461, per id. ; 
 Dyce Sombre v. Troup, 1 Deane, Ec. E. 49, 50, per Sir J. Dodson ; Prinsep & 
 East India Co. v. Dyce Sombre, 10 Moo. P. C. E. 232, 244—247 ; Nicholas 
 & Freeman v. Binns, 1 Swab. & Trist. 243, per Sir C. Cresswell ; Hassard 
 
 D. Smith, I. E. 6 Eq. 429 ; Blake u. Johnson, Milw. Ec. Ir. E. 164—166 ; 
 Smith 11. Tebbitt, 1 Law Eep., P. & D. 398, 434. 
 
 ^ Walcot v. AUeyn, MUw. Ec. Ir. E. 69 ; Legeyt v. Obrien, id. 334—337 ; 
 Airey v. Hill, 2 Add. 209 ; White v. Wilson, 13 Ves. 87 ; Hall v. Warren, 9 
 Ves. 605, 611. 
 
CHAP, v.] PRESUMPTIONS AS TO CONTINUANCE OF LIFE. 205 
 
 alive : ^ unless after a lapse of time considerably exceeding the 
 ordinary duration of liuman life. In the civil law the legal pre- 
 sumption of life ceases at the expiration of one hundred years 
 from the date of the birth,^ and the same rule appears to have been 
 adopted in Scotland,* but in England, no definite period has been 
 conclusively fixed, during which the presumption is allowed to 
 prevail. In several old cases, where feoffments for terms varying 
 from ninety-nine to eighty years had been made to particular 
 tenants, the possibility of their surviving the expiration of the 
 terms was neglected in determining the nature of the remainders ; * 
 and the book of a tithe-collector, written seventy-four years before, 
 has been admitted in evidence, without proof that any inquiries 
 had been made for the writer.^ Nay, in one case a receiver's 
 account was allowed to be read after the lapse of fifty-four years only, 
 though no proof was tendered respecting the writer's death.* 
 
 § 199. On the other hand, where a term was for sixty years, the § 156 
 court took into consideration the possibility of the termor living after 
 its expiration ; '^ and the deposition of a witness taken sixty years 
 before the trial has been rejected, no search having been made for 
 the deponent, and no account being given of him.^ In an action of 
 ejectment, where the lessor of the plaintiff, to prove his title, put in 
 a settlement 130 years old, by which it appeared that the party 
 through whom he claimed had four elder brothers, the jury were 
 
 ' See, however, E. v. Lumley, 1 Law Eep., C. C. 196 ; 38 L. J., M. C. 86 ; 
 11 Cox, 274, S. C, cited ante, § 114. 
 
 2 Vivere etiam usque ad centum annos quilibet praesumitur, nisi probetur 
 mortuus. Corpus Juris Glossatum, torn. 2, p. 718, n. q; I Masc. de Prob. 
 conol. 103, n. 5 ; Campegius Tract, de Test. reg. 350. 
 
 3 Morison, Presump. xvi., Carstairs v. Stewart, 1734; Hubb., Ev. of Sue. 
 168. Mr. Dickson in his most valuable work on the Law of Evid. in Scot- 
 land, states that, "a precise limit to this presumption has not been fixed." 
 1 vol., p. 183. For other foreign laws on the same subject, see Hubb., Ev. of 
 Sue. 758, 759. 
 
 < Weale v. Lower, PoUex. 67, per Ld. Hale ; Napper v. Sanders, Hutt. 119 ; 
 Ld. Derby's case, Lit. R. 370. 
 
 5 Jones V. Waller, 1 Price, 229. See, also, Doe v. Davies, 10 Q. B. 314, 324, 
 325. « Doe v. Michael, 17 Q. B. 276. 
 
 ' Beverley v. Beverley, 2 Vern. 131 ; Doe v. Andrews, 15 Q. B. 756. 
 
 « Benson v. Olive, 2 Str. 920 ; Manby v. Curtis, 1 Price, 225. 
 
206 PRESUMPTIONS AS TO CONTINUANCE OF LIFE. [PAET I. 
 
 allowed to presume, not only that these persons were dead, but, in 
 the absence of all evidence to the contrary, that they had died un- 
 married and without issue.^ This case would probably be considered 
 at the present day as carrying the law of presumptions somewhat 
 beyond its legitimate bounds, but this much is clear, that, whenever 
 it becomes necessary to prove the exhaustion of remote branches of 
 a family, the jury may safely be advised to act on very slight 
 evidence, such, for example, as unanswered advertisements or 
 ineifectual inquiries.^ 
 
 § 200. Although the presumption of life will continue for a § 157 
 period exceeding half a century, if no proof be given either that 
 the party, whose death is relied upon, has not been heard of by 
 those persons who would naturally have heard of him had he been 
 alive, or, at least, that search has been ineffectually made to find 
 him,^ — this presumption will be bounded withia far shorter limits, 
 if 'evidence be furnished of his continuous unexplained absence 
 from home, and of the non-receipt of intelligence concerning him. 
 In such case,* after the lapse of seven years, the presumption of life 
 ceases, and the burthen of proof is devolved on the party denying the 
 death.^ This period was inserted in the old statute of Charles II. 
 
 1 Doe V. Deakin, 3 C. & P. 402 ; 8 B. & C. 22, S. C, nom. Doe v. WoUey. 
 There Bayley, J., in stating that the juiy had properly made this presumption, 
 relied on the general rule, that things must he presumed to remain in the 
 same state in which they were proved to have once been, unless there is some 
 evidence of a subsequent alteration, 3 C. & P. 403 ; hut it is submitted that 
 the rule was iu this case strained somewhat beyond its legitimate extent ; for 
 if presumptions are founded, as they should be, on the experienced course of 
 events, it was surely more probable that one out of four brothers should marry 
 and have children, than that they should aU die unmarried. In Doe v. Griffin 
 15 East, 293, where a similar question arose, evidence negativing the marriage 
 of the party, who was presumed to have died without issue, was given ; and in 
 Richards v. Richards, id. 294, n. a, where the lessor of the plaintiff claimed as 
 heir by descent, and proved the death of his elder brothers, the court held that 
 he must further show that they died without issue, since in ejectment no pre- 
 sumption could be admitted against the person in possession. See, In re 
 "Webb's estate, Ir. R., 5 Eq. 235 ; Mullaly v. Walsh, I. R. 6 0. L. 314. 
 
 2 Greaves ii. Greenwood, 46 L. J., Ex. 252, perCt. of App. ; L. R., 2 Ex. D. 
 289, S. 0. 3 Doe v. Andrews, 15 Q. B. 756. " Gr. Ev. § 41, in part. 
 
 ^ HopeweU v. De Pinna, 2 Camp. 113 ; Rust v. Baker, 8 Sim. 443 ; Loring 
 1). Steineman, 1 Mete. 204. See Bowden v. Henderson, 2 Sm. & Giff. 360, where 
 
CHAP, v.] PEESUMBTIONS AS TO CONTINUANCE OP LIFE. 207 
 
 concerning leases for lives,^ and it has since been adopted, by 
 analogy, in other cases.^ It is also recognised in the various 
 Acts relating to bigamy ; ^ and if, on an indictment for that crime, 
 it appear that the prisoner and his first wife had Uyed apart for 
 seven years before he married again, mere proof that the first wife 
 was alive at the time of the second marriage will not warrant a 
 conviction, but some affirmative evidence must be given to show 
 that the accused was aware of this fact.* But although a person, 
 who has not been heard of for seven years, is presumed to be dead, 
 the law raises no presumption as to the time of his death ; and 
 therefore, if any one has to establish the precise period during 
 those seven years, at which such person died, he must do so by 
 evidence, and can neither rely, on the one hand, upon the pre- 
 sumption of death, nor on the other, upon the presumption of the 
 continuance of life.^ 
 
 it was held, tliat the presumption of death after seven years' absence does not 
 arise, if the probahility of the exile sending intelligence home he rebutted by 
 circumstances. See also M'Mahon v. M'Elroy, I. E., 5 Eq. 1. 
 
 ' 19 C. 2, c. 6, § 2. See also 6 A., c. 18, which is entitled, " An Act for the 
 more effectual discovery of the death of persons pretended to be aUve, to the 
 prejudice of those who claim estates after their deaths." 
 
 ^ Doe V. Jesson, 6 East, 85 ; Doe v. Deakin, 4 B. & A. 433 ; King v. Paddock, 
 18 Johns. 141. In America it is not necessary that the party be proved to be 
 absent from the United States ; it is sufficient if it appears that he has been 
 absent for seven years from the particular State of his residence, without having 
 been heard of, Newman v. JenMns, 10 Pick. 515 ; Innis v. Campbell, 1 Rawle, 
 373 ; Spurr v. Trimble, 1 A. K. Marsh. 278 ; Wambough v. Shenk, 1 Pen- 
 ningt. 167 ; Woods v. Woods, 2 Bay, 476. In the N. York Civ. Code, the 
 presumption is thus briefly expressed : — " That a person not heard from ia 
 seven years is dead ; " § 1780, art. 26. As to cases where the presumption of 
 life conilicts with that of innocence, see § 114, ante. 
 
 ' 1 J. 1, c. 11, § 2 ; 9 G. 4, c. 31, § 22 ; 24 & 25 V., c. 100, § 57. 
 
 * E. V. Cargenwen, 35 L. J., M. C. 58 ; 10 Cox, 152, S. C. ; 1 Law Eep., 
 C. C. 1, S. C. 
 
 5 Phene's Trusts, re, 5 Law Eep., Ch. Ap. 139; 39 L. J., Ch. 316, S. C. ; 
 Lewes's Trusts, re, 11 Law Eep., Eq. 236 ; 6 Law Eep., Ch. Ap. 356, and 40 
 L. J., Ch. 602, S. C. ; Hickman v. Upsall, 20 Law Eep., Eq. 136 ; 46 L. J., 
 Ch. 245, S. C. on App. ; Lambe v. Orton, 29 L. J., Ch. 286; Penne- 
 father v. Pennefather, I. E. 6 Eq. 171 ; Thomas v. Thomas, 2 Drew. & 
 Sm. 298 ; In re Benham's Trusts, 37 L. J., Ch. 265, per Eolt, L. J., 
 reversing decision by Malins, V.-C, as reported in 36 L. J., Ch. 502 4 
 Law Eep., Eq. 416, S. C. ; In re Peck, 29 L. J., Pr. & Mat. 95; In' re 
 Nichola, 41 L. J., Pr. & Mat. 88; Dunn v. Snowden, 32 L. J., Ch. 104; 2 
 
208 PEESUMPTIONS AS TO CONTINUANCE OF LIFE. [PART I. 
 
 § 201. Where it appeared that a brig had sailed from Demerara § 158 
 for England in December, 1828, had touched at Dominica on the 
 24th of that month, and had never afterwards been heard of, 
 Vice- Chancellor Knight Bruce, after a lapse of seven years, pre- 
 sumed that the vessel and her crew were lost before the 29th of 
 January, 1829, evidence being given that the average length of a 
 voyage from Dominica to England was under two months, and 
 that the West Indian latitudes were subject to hurricanes, which 
 were so much more prevalent between the 1st of August and the 
 10th of January, that premiums for insurance during that time 
 were double what they were at other periods of the year.^ So, 
 upon an issue of the life or death of a party, the jury may find 
 the fact of death from the lapse of a shorter period than seven 
 years, if other circumstances concur ; as, if the party, when last 
 heard of, was aged, or infirm, or ill,^ or had since been exposed 
 to extraordinary peril, such as a storm and probable shipwreck.^ 
 But the presumption of the common law, independent of the 
 
 Drew. & Sm. 201, S. C. ; Doe v. Nepean, 5 B. & Ad. 86 ; 2 N. & M. 219, S. 0. ; 
 Nepean v. Doe d. Knight, 2 M. & W. 894, in Ex. Ch. ; 2 Smith, L. C. 476, 
 492, 577, S. C. In that case Ld. Denman, in. pronoimoing the judgment of the 
 couxt, observes — " It is true the doctrine will often practically limit the time 
 for bringing the action of ejectment in such oases [viz., where the plaintiff 
 claims as grantee in reversion of an estate] ; and circumstances may be sup- 
 posed, as of a lease for seven years, commencing on the death of A., or of a 
 promissory note payable two months after A.'s death, and many other cases 
 which might be put, in which it would be difficult to carry into effect certain 
 contracts, or to have remedies for the breach of them, if the parties interested 
 instead of making inquiries respecting the person on whose life so much 
 depended, chose to wait for the legal presumption. Such inconveniences may 
 no doubt arise, but they do not warrant us in laying down a rule that the 
 party shall be presumed to have died on the last day of the seven years, which 
 would manifestly be contrary to the fact in almost all instances." — 2 M. & W. 
 913, 914. 
 
 ' SUHck V. Booth, 1 Y. & C, Ch. R. 117. See Ommaney v. Stilwell, 23 
 Beav. 328. 
 
 2 E. V. Harborne, 2 A. & E. 544, per Ld. Denman ; 4 N. & M. 344, S. 0. ; 
 Beasney's Trust, re, 38 L. J., Ch. 159 ; 7 Law Rep., Eq. 498, S. C. 
 
 3 Watson V. King, 1 Stark. R. 121 ; 4 Camp. 272, S. C. ; Patterson v. Black, 
 cited 2 Park. Ins. 919, 920. In the case of a missing ship, bound from Mamdla 
 to London, on which the underwriters had voluntarily paid the amount insured 
 the death of those on board was presumed by the Prerogative Court, after the 
 absence of only two years, and administration was granted accordingly ; In re 
 Button, 1 Curt. 595. 
 
CHAP, v.] PEESXJMPTIONS AS TO SURVIVORSHIP. 209 
 
 finding of a jury, does not attach to the mere lapse of time short 
 of seven years .^ 
 
 § 202.^ When two persons, and especially when two relatives, § 159 
 have perished in the same calamity, such as a wreck, a battle, or a 
 conflagration, it often becomes important, with a view of deter- 
 mining the right of succession to estates, to ascertain who was 
 the svrvivor. Direct proof, however, can seldom be procured in 
 these cases, and, consequently, in the Eoman law, and in several 
 other codes, recourse is had- to artificial presumptions, whenever 
 the particular circumstances connected with the deaths are wholly 
 unknown. These presumptions are based on the probabilities of 
 survivorship resulting from strength, age, and sex. In the case 
 of a father and son perishing together in the same shipwreck or 
 battle, the Eoman law presumes that the son died first, if he was 
 under the age of puberty ; but if he was above that age, that he 
 was the survivor ; upon the principle, that in the former case, the 
 elder is generally the more robust, and in the latter, the younger.^ 
 The French code has regard to the ages of fifteen and sixty; 
 presuming that of those under the former age, the eldest survived ; 
 and that of those above the latter age, the youngest survived. If 
 one of these parties were under the age of fifteen, and the other 
 above the age of sixty, the former is presumed to have survived. 
 If both parties were between those ages, but of different sexes, 
 the male is presumed to have survived, unless he were more than 
 a year younger than the female : but if they were of the same sex, 
 the presumption is in favour of the survivorship of the younger, as 
 opening the succession in the order of nature.* The same rules 
 were in force in the territory of Orleans, at the time of its cession 
 to the United States, and have since been incorporated into the 
 
 ' See fartlier on this subject, Hublj. Ev. of Sue. 167, et seq., 758, 759. 
 
 2 Gr. Ev. § 29, in part. 
 
 3 Dig. lib. 34, tit. 5 ; De rebus dubiis, lib. 9, § 1, 3 ; Id. i. 16, 22, 23 ; 
 Menoob. de Praes. lib. 1, Qusest. x. n. 8, 9. This rule, however, was subject 
 to some exceptions for the benefit of mothers, patrons, and beneficiaries. 
 
 ^ Code Civil, §§ 720, 721, 722 ; Duxanton, Gouts de Droit Frangais, torn. 6, 
 pp. 39, 42, 43, 48, 67, 69 ; Eogron, Code Civil, Expli. 411, 412 ; TouUier, Droit 
 Civil Eran9ais, torn. 4, pp. 70, 72, 73. 
 
 p 
 
210 PRESUMPTIONS AS TO SURVIVORSHIP. [PART I. 
 
 Code of Louisiana.^ They have also, with some modifications, been 
 adopted into the State of New York.^ 
 
 § 203. In cases of this nature the law of England recognises^ no § 160 
 presumption, either of survivorship, or of contemporaneous death ; * 
 but, in the total absence of all evidence respecting the particular 
 circumstances of the calamity, the matter will be treated as one in- 
 capable of being determined.^ On one occasion, indeed, Vice-Chan- 
 cellor Knight-Bruce appears to have expressed an opinion, that 
 a presumption of priority of death might be raised frora the com- 
 parative age, strength, and skill of the parties ; and, in accordance 
 with this view, where two brothers perished by shipwreck, the circum- 
 stances being wholly unknown, but it appeared that the one was 
 twenty-eight years of age, and the master of the ship, while the 
 
 ' Civ. Code of Louis., art. 930—933 ; Dig. of Civ. L. of Orleans, art 60—63. 
 
 " N. York Civ. Code, § 1780, tit. 3. 
 
 ^ K. V. Dr. Hay, 1 W. Bl. 640. This case, better known as General Stan- 
 wix's case, was compromised upon the recommendation of Ld. Mansfield, who 
 said he knew of no legal principle on which he could decide it. See 2 Phillim. 
 E. 268, n. ; Fearne's Posth. Works, 38 ; Doe v. Nepean, 5 B. & Ad. 91, 92 ; 
 Underwood v. Wing, 19 Beav. 459, per Komilly, M. R. ; aff. on appeal by 
 Ld. Cranworth, C, assisted by Wightman, J., and Martin, B., 4 De Gex, M. 
 & G. 1 ; Mason v. Mason, 1 Meriv. 308. See Duxrant v. Friend, 5 De Gex 
 & Sm. 343 ; Barnett v. TugweU, 31 Beav. 232. For the cases decided ia the 
 old Eccles. Courts, see Wright v. Netherwood, 2 Salk. 593, n. a. by Evans ; 
 more fully reported under the name of Wright v. Sarmuda, 2 Phillim. R. 
 266—277, n. c ; Taylor v. Diplock, id. 261, 278, 280 ; Selwyn's case, 3 Hagg. 
 Ec. R. 748 ; In the goods of Murray, 1 Curt. 596. In the brief note of Colvin 
 V. Proc. Gen., 1 Hagg. Ec. R. 92, where the husband, wife, and infant (if any) 
 perished together, the court seems to have held, that the primS facie presump- 
 tion of law was that the husband survived ; but the question was not much 
 discussed ; and in Satterthwaite v. Powell, 1 Curt. 705, where a husband and 
 wife perished in the same wreck, the court would not presume that he survived 
 and consequently refused to grant to his representative the administration of 
 property vested in the wife. The subject of presumed survivorship is fully 
 treated in 4 Bmge, Com. on Col. & For. L., 11—29 ; and in Hubb. Ev. of Sue. 
 186, et seq., and 759 — 764. See also 2 Kent, Com. 435, 436, 4th ed., n. b. 
 
 * By the Mahometan law of India, when relatives thus perish together, " it 
 is to be presumed that they all died at the same moment ; and the property 
 of each shall pass to his Uving heirs, without any portion of it vesting 
 m his companions in misfortune." See Baillie's Moohummudan Law of 
 Inherit. 172. 
 
 " Wing V. Angrave, 8 H. of L. Cas. 183 ; 30 L. J., Ch. 65, S. C. 
 
CHAP, v.] PRESUMPTIONS ADOPTED IN INSUEANCE LAW. 211 
 
 other was under age, and acted as second mate, it was presumed 
 that the elder, as the stronger and more experienced sailor, survived 
 the younger.^ This case, however, cannot be relied upon as an 
 authority, since it is opposed to a long current of decisions. It 
 remains only to observe, that if any circumstances connected with 
 the death of either party can be proved, the whole question of sur- 
 vivorship may be dealt with as one of fact, and the comparative 
 strength, or skill, or energy, of the two sufferers may then very fairly 
 be taken into account. 
 
 § 204. A rule has been adopted in insurance law, that if a § 161 
 vessel has sailed, and no tidings of her have been received within 
 a reasonable time, she shall be presumed to have foundered at 
 sea.^ By " tidings " are meant, not mere rumours, but some 
 actual intelligence received from persons capable of giving an 
 authentic account;^ and, it seems, that m an action on a policy 
 from an English to a foreign port, the presumption of loss will 
 sufficiently arise, from proof that the ship was not heard of in 
 this country after she sailed, without calhng witnesses from the 
 port of destination to show that she never arrived there.* Neither 
 the law of England, nor the usage of merchants, has fixed any 
 definite period after which the assured may demand payment for 
 his loss, in case no intelligence is received respecting the vessel 
 insured ; but a practice has prevailed among insurers of deeming 
 a vessel' lost, provided she shall not have been heard of within 
 six months after her departure for any port in Europe, or within 
 twelve months if bound for a greater distance.^ 
 
 1 SiUiok V. Bootli, 1 Y. & C, Ch. E. 117, 126. 
 
 2 Green v. Brown, 2 Str. 1199; Newby v. Eeed, cited 1 Park, Ins. 148 ; 
 Koster v. Reed, 6 B. & C. 19 ; 9 D. & R. 2, S. C. But in order to recover on a 
 policy, there must be some evidence, that when the ship left the port of outfit, 
 she was bound upon the voyage insured, Cohen v. Hinkley, 2 Camp. 51, per Ld. 
 EUenborough ; Coster v. Innes, Ky. & M. 333, per Abbott, C. J. 
 
 3 Koster v. Eeed, 6 B. & C. 22, per Bayley, J. In that case a witness stated 
 that a few days after the vessel sailed, he heard that she had foundered, but 
 that the crew were saved : Held not sufficient to rebut the presumption of loss 
 which arose from the ship never having arrived at her port of destination, and 
 that the plaintiff was neither bound to call any of the crew, nor to show that 
 he was unable to do so. 
 
 ■" Twemlow v. Oswin, 2 Camp. 85, per Sir J. Mansfield, C. J. 
 » 1 Park, Ins. 149. In Spain and France, the time after which insurance 
 
 p 2 
 
212 PBESUMPTIONS ADOPTED IN MAPJTIME LAW. [PAET I. 
 
 § 205. Another presumption connected with the law of m- § 162 
 STirance is this, that if a ship, shortly after sailing, shall, without 
 visible or adequate cause, become leaky, or otherwise incapable 
 of performing the voyage insured, she shall be deemed to have 
 been unseaworthy at the commencement of the risk.^ This 
 presumption, however, is not, it seems, of so binding a nature, 
 as to induce the court to grant a third trial, when two special 
 juries have already concurred in finding a verdict in opposition 
 to it.2 
 
 § 206. The Admiralty Division of the High Court recognises § 162a 
 certain presumptions, which ought to be borne in mind, as they have 
 the effect of technically shifting the burthen of proof. Thus, in 
 cases of collision, if one of the vessels be shown to have been at 
 anchor, that fact so far raises a presumption in her favour, as to 
 impose on the other vessel the necessity of making out her defence.^ 
 So, if a ship be proved to have been in stays at the time of the col- 
 lision, she is presumed to have been unable to avoid it ; and the 
 burthen of proof rests on the opposite side to establish, either that the 
 vessel was improperly put in stays,— whatever that means,- — or that 
 the damage was occasioned by stress of weather, or by other unavoid- 
 able accident.* Again, in the case of a collision between two ships, 
 the "person in charge," — or, in other words, the master, — of each ship 
 is bound to render assistance to the other vessel, and to stay by her 
 for that purpose ; and if he fail to do so, the collision shall, in the 
 
 losses may lie demanded, is fixed by express regulation. By the ordinances of 
 the former, if a ship insured on going to, or comiag from, the Indies, is not 
 heard of witliin a year and a half after her departiue from the port of outfit, 
 she is deemed lost, 2 Magens, 33 ; by those of the latter, if the assured receives 
 no news of his ship, he may, at the expiration of a year for common voyages, 
 reckoning from the day of the departure, and after two years for those of a 
 greater distance, make his session to the imder^-riters, and demand payment, 
 without being obliged to produce any certificate of the loss, Ordonnance de la 
 Marine, liv. 3, t. 6, des Assur. Art. 58 ; 1 Park, Ins. 149. 
 
 ' Watson V. Clark, 1 Dow, 344 ; Munro v. Vandam, 1 Park, Ins. 469, per Ld. 
 -Kenyon ; Parker v. Potts, 3 Dow, 23. 
 
 2 Poster V. Steele, 3 Bing. N. C. 892 ; 5 Scott, 25, S. C, per Tindal, C. J. 
 and Park, J. ; Vaughan and Coltman, Js., diss. 
 
 2 The Bothnia, 1 Lush. Adm. R. 52. 
 
 < The Sea Nymph, 1 Lush. Adm. E. 23. 
 
CHAP, v.] PRESUMPTIONS ADOPTED IN MARITIME LAW. 213 
 
 absence of proof to the contrary, be deemed to have been caused by 
 his wrongful act.'- So, the infringement of any regulation for pre- 
 venting collision, which is made under the Merchant Shipping Act, 
 raises a presumption of blame as against the infringer, unless he 
 can show either that circumstances " made a departure from the 
 regulation necessary,"^ or that the infringement charged could not 
 by possibility have contributed to the collision.^ Again, if a salvor's 
 vessel has been injured or lost while engaged in the salvage service, 
 the Admiralty Division presumes, prim^ facie, that such injury or 
 loss was caused by the necessities of the service, and not by the 
 salvor's default.* 
 
 § 207. By the principles, too, of our maritime law, every § 163 
 reasonable presumption must be made in favour of the rights of 
 property in the owners, whenever any question of derelict is 
 mooted between them and the salvors. Thus, the 33rd article of 
 the laws of Oleron enacts, that " if from any ship or other vessel 
 have been cast overboard several goods or merchandises which 
 are in chests well locked and made fast ; or books so well secured 
 and so well conditioned that they may i^ot be damnified by salt 
 water ; in such cases it is to be presumed that they who did cast 
 such goods overboard do still retain an intention, hope, and desire 
 of recovering the same : for which reason, such as shall happen 
 to find such things, are obliged to make restitution thereof to him 
 who shall make a due inquiry after them." On the principle of 
 this enactment, — which has been the law for the last seven hundred 
 and fifty years, and which is still in full force,^ — it has repeatedly 
 been held, that where salvors make a claim, as in a case of dere- 
 liction, it will not suffice for them merely to prove that they found 
 the vessel at sea apparently abandoned, but they must go further 
 and prove that the master and crew, when they left the vessel, 
 did so without any hope, expectation, or intention of being able 
 
 1 The Queen, 2 Law Rep., Adm. & Ecc. 354 ; 36 & 37 V., c. 85, § 16. 
 
 2 36 & 37 v., c. 85, § 17. 
 
 3 The Fanny Carvill, 44 L. J., Adm. 34, per P. C. ; Law Rep., 4 Adm. &Ecc. 
 417, S. C. nom. The Magnet. 
 
 » The Thomas Blyth, 1 Lush. Adm. R. 16. 
 
 5 In re Cosmopolitan, 6 Eco. & Mar. Cas., Supp. xxviii, per Dr. Stock. 
 
214 PEBSUMPTIONS ADOPTED IN MARITIME LAW. [PAET I. 
 
 to return, or in the 'technical language of the law, sine spa re- 
 cuperandi.^ 
 
 § 208. It here deseryes notice that a ship-owner, — except so far § 164 
 as his liability is limited by the Merchant Shipping Acts, 1854 
 and 1862,^ — is prima facie presumed to be responsible for any 
 damage occasioned by negligence in the navigation of his vessel. In 
 order, therefore, to bring himself within the exemption from liabiHty 
 conferred upon him by the first named Act where pilotage is com- 
 pulsory,^ it is not sufficient merely to show that he had a pilot on 
 board at the time of the accident, and that the presence of such 
 pilot was compulsory,* but the burthen of proof lies upon him to 
 establish the further fact, that the damage was occasioned exclu- 
 sively by the pilot's fault.^ In using this language it is not meant 
 
 ^ In re Cosmopolitan, 6 Bo. & Mar. Cas., Supp. xvii, and cases there cited. 
 The judgment of the court in this case is very elaborate, and well deserves 
 an attentive perusal. The Admiralty Division 'wiU never decree more than 
 a moiety of the value of the article saved for mere salvage, independent of 
 dereKction, Gore v. Bethel, 12 Moo. P. C. R. 189 ; The Inca, 1 Swab. Adm. 
 R. 370. 
 
 2 17 & 18 v., c. 104, §§ 503—516, and 388 ; 25 & 26 V., c. 63, § 54 ; see 
 The Rajah, 3 Law Rep., Adm. & Ecc. 539. 
 
 ^ § 388 enacts, that " No owner or master of any ship shall be answerable to 
 any person whatever for any loss or damage occasioned hy the fault or in- 
 capacity of any qualified pilot acting in charge of such ship, within any district 
 where the employment of such pilot is compulsory by law." See Conserv. of 
 Riv. Thames v. HaU, 37 L. J., 0. P. 163 ; 3 Law Rep., C. P. 415, S. C. ; 
 Prowse V. The European & Amer. St. Shipping Co., 13 Moo. P. C. R. 484 ; 1 
 Lush. Adm. R. 103, S. C. nom. The Peerless. This statutable law is applicable 
 to a case, where the collision has occurred within the limits of a foreign port ; 
 The Halley, 2 Law Rep., P. C. 193 ; overruling S. C, as decided per Sir R. 
 Phillimore ; 2 Law Rep., Adm. & Eoo. 3 ; 37 L. J., Adm. 1, S. C. As to the 
 meaning of the word " compulsory," see Gen. St. Nav. Co. ■;;. Brit. & Col. St. 
 Nav. Co., 3 Law Rep., Ex. 330 ; 37 L. J., Ex. 194, S. C. ; 38 L. J., Ex. 97, 
 S. C. in Ex. Ch. ; and 4 Law Rep., Ex. 238. 
 
 " The Earl of AucHand, 30 L. J., Pr. Mat & Adm. 121 ; 1 Lush. Adm. 
 R. 164, S. C. ; S. C. nom. Malcomson v. Baldock, 15 Moo. P. C. R. 304 ; The 
 Hanna, 36 L. J., Adm. 1 ; The Annapolis, 1 Lush. Adm. R. 295 ; The Lion, 
 Owners v. The York-Town, Owners, 38 L. J., Adm. 51 ; 2 Law Rep., P. C 
 525, S. C. 
 
 * Hammond v. Rogers, 7 Moo. P. C. R. 160 ; Pollock v. MAlpin, id. 427 ; 
 Bates V. Don Pablo Sora, 10 Moo. P. C. R. 467 ; The Carrier Dove, 1 B. & 
 Lush. Adm,. R. 113 ; The lona, 1 Law Rep., P. C. 426 ; 4 Moo. P. C, N. S 
 
CHAP. V.J PRESUMPTIONS RESPECTING DOMICIL. 215 
 
 that the ship-owner will be obliged to exonerate himself by indefi- 
 nite negation, but it will suffice for him in the first instance to show 
 that the pilot's fault occasioned the damage, leaTing his opponent, 
 if he can, to establish as against the ship-owner a case of contribu- 
 tory negligence.^ The legal owner of a ship is also prima facie 
 liable to pay for all such repairs and stores ordered by the master, 
 as are necessary for the equipment and navigation of the ship in the 
 voyage or trade in which she is employed ; for the master, in the 
 absence of all evidence to the contrary,^ is presumed to be the agent 
 of the owner to give all needful orders, and he consequently has 
 authority to pledge the owner's credit for goods supplied or work 
 done in pursuance of such orders.^ 
 
 § 209. In cases respecting the national character of a man, who § 165 
 either has no fixed place of residence, or who has two homes, and 
 the scale is almost evenly balanced between them, the legal pre- 
 sumption is in favour of what is called the forum originis, or domicil 
 of origin ; by which is meant, not the place where he may chance 
 to have been born, but the home of his parents.* When a man's 
 
 336, S. 0. ; The Minna, 2 Law Eep., Adm. & Eco. 97 ; The Valesquez, 1 Law 
 Bep., P. C. 494 ; 4 Moo. P. C, N. S. 426 ; 36 L. J., Adm. 19, S. C. ; Tlie Vic- 
 toria, 1 Ir., Eq. 336 ; The General De Caen, 1 Swab. Adm. R. 9 ; The Mobile, 
 id. 69 & 127 ; The Admiral Boxer, id. 193 ; The Schwalbe, 1 Lush. Adm. E. 
 239 ; 14 Moo. P. C. R. 241, S. C. nom. North German Lloyd St. Ship Co. v. 
 Elder ; The Netherlands St. Boat Co. v. Styles, 9 Moo. P. C. R. 286 ; The 
 Protector, 1 Rob. Adm. 45 ; The Diana, id. 181 ; 4 Moo. P. C. R. 11, S. C. ; 
 Eodriques v. MeUmish, 10 Ex. R. 110 ; Wood v. Smith, Re The City of Cam- 
 bridge, 43 L. J., Adm. 11 ; 5 Law Rep., P. C. 451, S. C. ; Clyde Navig. Co. v. 
 Barclay, L. R., 1 App. Cas. 790 ; The Meteor, I. R. 9 Eq. 567. 
 
 ' Clyde Navig. Co. o. Barclay, L. R., 1 App. Cas. 790. 
 
 2 Mitcheson v. Oliver, 5 E. & B. 419 ; Hibbs v. Ross, 1 Law Rep., Q. B. 534 ; 
 35 L. J., Q. B. 193 ; 7 B. & S. 655, S. C. ; Gunn v. Roberts, 9 Law Rep., C. P. 
 331 ; 43 L. J., C. P. 233, S. C. 
 
 -" Erost V. Oliver, 2 E. & B. 301 ; Beldon v. CampbeU, 6 Ex. R. 886 ; The 
 Great Eastern, 2 Law Rep., Adm. & Ecc. 88 ; Edwards v. Havell, 14 Com. B. 
 107. See WaUace v. Fielden, 7 Moo. P. C. E. 398 ; Tronson v. Dent, 8 Moo. 
 P. C. E. 419 ; Myers v. Willis, 17 Com. B. 77 ; 18 Com. B. 886, S. C. ; Brodie 
 V. Howard, 17 Com. B. 109 ; Hackwood v. Lyall, id. 124 ; Mackenzie v. Pooley, 
 11 Ex. R. 638 ; WhitweU v. Perrin, 4 Com. B., N. S. 412. 
 
 * Munro v. Munio, 7 CI. & Pin. 842 ; Bell v. Kennedy, 1 Law Eep., H. L. 
 So. 307 ; Somerville v. Somerville, 5 Ves. 750 ; Forbes v. Forbes, 1 Kay, 364 ; 
 Crookenden v. Fuller, 29 L. J., Pr. & Mat. 1 ; 1 Swab. & Trist. 441, S. C. ; 
 
216 PRESUMPTIONS EESPECTING DOMICIL. [PAET I- 
 
 domicil of origin is not known, or when his intention to abandon it 
 can be proved, the law presumes, prima facie, that the place of his 
 actual residence is the place of his acquired domicil :^ but this pre- 
 sumption may be easily rebutted by showing that he has merely 
 come to live in the country where he is staying, either for a limited 
 period, or for a special purpose, or that in point of fact he has no 
 animus manendi, no settled intention of making that country his 
 place of permanent abode.^ When a married man has two houses 
 situate in different countries, in both of which he is in the habit of 
 residing, his home or domicil will generally be presumed to be that 
 house in which his wife and general estabhshment of servants always 
 remain when he is at the other.^ In consequence of the legal pre- 
 sumption in favour of the domicil of origin,* slighter evidence is 
 required to warrant the conclusion that a man has intended to 
 abandon an acquired domicil, and to resume his domicil of origin, 
 than is necessary to justify the conclusion that he has determined 
 to abandon his domicil of origin, and to acquire a new one.^ 
 
 § 210. The presumption, too, against the acquisition of a new § 165 
 domicil will be stronger in the case of a person, who is alleged to 
 have gained such domicil in a foreign land, than it would be, were 
 the domicil in a country where the party would not be a foreigner.® 
 
 Whicker v. Hume, 28 L. J., Ch. 396 ; in Dom. Proc. 7 H. of L. Gas. 124, S. C. ; 
 Lord V. Colvin, 28 L. J., Ch. 361, per Kindersley, V.-C. ; Hodgson v. De 
 Beaucliesne, 12 Moo. P. C. E. 285. 
 
 1 Bempdfe v. Jolinstoiie, 3 Vea. 198, per Ld. Thurlow ; Bruce v. Bruce, 
 
 2 B. & P. 230 ; n. per id. ; 6 Br. P. C. 566, S. C. ; The Diana, 5 Rob. 
 Adm. 60 ; The Ocean, id. 90 ; The President, id. 277 ; Guier v. O'Daniel, 1 
 Binn. 349, n. 
 
 2 Bruce v. Bruce, 2 B. & P. 230. n. ; 6 Br. P. 0. 566, S. 0. ; Bell v. Ken- 
 nedy, 1 Law Eep., H. L. Sc. 307 ; Lord v. Colvin, 38 L. J., Ch. 361, 366 ; Jopp 
 V. Wood, 4 De Gex, J. & S. 616 ; King v. Foxwell, L. E,., 3 Ch. D. 518 ; 45 L. J., 
 Ch. 693, S. C. ; Gillis u. Gillis, I. R. 8 Eq. 597 ; The Harmony, 2 Rob. Adm. 
 322 ; Guier v. O'Daniel, 1 Binn. 349, n. 
 
 " Forbes v. Forbes, 1 Kay, 364, per Wood, V.-C. 
 
 ' See Udny v. Udny, 1 Law Rep., H. L. Sc. 441 ; and King v. Foxwell, L. E., 
 
 3 Ch. D. 518 ; 45 L. J., Ch. 693, S. C. 
 
 5 Lord V. Colvin, 28 L. J., Ch. 373, per Kindersley, V.-C. ; Douglas v. Douglas, 
 12 Law Eep., Eq. 642, per Wickens, V.-C. ; 41 L. J., Ch. 74, S. C. 
 '^ Id. ; Whicker v. Hume, id. 399, 400, per Ld. Cranworth ; 7 H. of L. Cas. 
 
CHAP, v.] DOMICIL — COPYHOLDS — PEERAGES. 217 
 
 For instance, the court would more readily decide that a Scotchman 
 had acquired an English, or an Anglo-Indian, domicil than a French 
 one; for a man's acquisition of a domicil iu a foreign country is 
 obviously a most serious matter, since it not only renders the 
 validity of his testamentary acts, and the disposition of his personal 
 property, liable to be governed by foreign laws, but it is calculated 
 to involve him in a conflict of national duties, and to subject him to 
 the embarrassments of a divided allegiance.^ The law presumes 
 that the domicil of a wife is the domicil of her husband ; and this 
 presumption is, as a general rule, conclusive.^ An exception, 
 however, might possibly be recognised in the case of a judicial sepa- 
 ration pronounced by competent authority,' or where the husband 
 had abjured the realm, deserted his wife, and established himself 
 permanently in a foreign country, or had committed felony, and 
 been transported.* 
 
 § 211. With respect to copyhold property, the law presumes, in § 166 
 the absence of proof of any specific custom in the manor, first, that 
 estates tail cannot be created, and next, that if they can, they are 
 liable to be barred either by a common surrender, or by a surrender 
 to the use of a will.^ 
 
 § 212. Where the limitation of a peerage cannot be discovered, § 167 
 the law presumes that it descends, not to the heirs general, but to 
 the heirs male of the body of the original grantee.* 
 
 § 213.'' A spirit of comity is presumed to exist among nations ; § 168 
 and, consequently, it has become a maxim of international law, that 
 
 124, S. 0. ; Hodgson v. De Beauchesne, 12 Moo. P. C. R. 285, 317 ; Crookenden 
 V. Fuller, 29 L. J., Pr. & Mat. 1, 8 ; 1 Swab. & Trist. 441, S. C. i Id. 
 
 2 DolpHn V. Robins, 7 H. of L. Cas. 390 ; 3 Macq. Sc. Cas. H. of L. 
 563, S. C. 
 
 ' 7 H. of L. Cas. 416, per Ld. Cranwortb ; 420, per Ld. Kingsdown. 
 
 * Id. 418, 419, per Ld. Cranwortb. 
 
 6 Goold V. White, 1 Kay, 683 ; Radford v. Wilson, 3 Atk. 815 ; Moore v. 
 Moore, 2 Ves. Sen. 596, 603. 
 
 ^ Glencaim Peer., 1 Macq., Sc. Cas. H. of L. 444 ; recognised and confirmed 
 in Montrose Peer., id. 401 ; Henries' Peer., 3 id. 585, 588, 600, 603 ; 2 Law 
 Rep., H. L. Sc. 258, S. C. ; Breadalbane Peer., 2 Law Rep., H. L. Sc. 269. 
 
 " Gr. Ev. § 43, in part. 
 
218 PKESUMPTIONS OF FACT. [PART I. 
 
 when the solution of any legal question depends upon the laws of a 
 foreign state, — as, for example, when a contract made in one 
 country is sought to be enforced in another, — courts of justice will, 
 in the silence of any positive rule affirming or denying or restrain- 
 ing the operation of such foreign laws, presume the adoption of 
 them by their own government, unless they are repugnant to its 
 policy, or prejudicial to its interest.^ 
 
 § 214.^ Peesumptions of fact, usually treated as composing the § 169 
 second general head of presumptive evidence, can hardly be said with 
 propriety to belong to this branch of the law. They are in truth 
 but mere arguments, of which the major premiss is not a rule of 
 law ; they belong equally to any and every subject-matter ; and are 
 to be judged by the common and received tests of the truth of pro- 
 positions, and the validity of arguments. They depend upon their 
 own natural efficacy in generating belief, as derived from those con- 
 nections, which are shown by experience, irrespective of any legal 
 relations. They differ from presumptions of law in this essential 
 respect, that while those are reduced to fixed rules, and constitute 
 a branch of the system of jurisprudence, these merely natural pre- 
 sumptions are derived wholly and directly from the circumstances 
 of the particular case, by means of the common experience of man- 
 kind, vnthout the aid or control of any rules of law. Such, for 
 example, is the inference of guilt, drawn from the discovery of a 
 broken knife in the pocket of the prisoner, the other part of the 
 blade being found sticking in the window of a house, which, by 
 means of such an instrument, had been burglariously entered.^ 
 
 § 215. These presumptions remain the same under whatever law § 170 
 
 ' Bk. of Augusta v. Earle, 13 Pet. 519, 589 ; Story, Confl. §§ 36—38 ; 
 Huber, de Confl. Leg., lib. 1, tit. 2, § 2, p. 538. 
 
 * Gr. Ev. § 44, almost verbatim. 
 
 ' See Henry VI., Pt. ii., Act iii., So. 2, where Warwick, after contemplating 
 " duke Humphrey's timeless death," ia made by our great poet of nature to 
 comment thus : — 
 
 " Who finds the heifer dead, and bleeding fresh. 
 And sees fast by a butcher with an axe. 
 But will suspect 'twas he that made the slaughter ? " 
 
 See, also, SmoUett's " Adventures of Roderick Random," Ch. xx. 
 
CHAP, v.] PEESUMPTIONS OF FACT. 219 
 
 the legal effect of the facts, when found, is to be decided.^ They 
 embrace all the relations between the fact requiring proof and the 
 fact or facts actually proved, whether such relations be direct or 
 indirect, and whether they be physical or moral. A single circum- 
 stance may raise the inference, as well as a long chain of circum- 
 stances. For instance, the decision of King Solomon as to which 
 of the two harlots was the mother of' the hving child, rested on the 
 general presumption^ in favour of maternal affection, and on the 
 sole fact that the " bowels " of the real mother " yearned upon her 
 son," and she would in no wise consent to his being slain.^ So, — 
 to pass from history to fiction, — ^the famous judgment of Sancho 
 Panza acquitting the herdsman charged with rape,* was founded on 
 the ascertained fact that the prosecutrix successfully resisted the 
 attempt to take her purse, which the accused made by order of the 
 court. " Sister of mine," said honest Sancho, to the forceful but 
 not forced damsel, " had you shown the same, or but half as much 
 courage and resolution in defending your chastity, as you have 
 shown ia defending your money, the strength of Hercules could not 
 have violated you." 
 
 § 216.^ Although it is the exclusive province of the jury to fix § 171 
 the due weight which ought to be given to presumptions of fact, 
 juries are usually aided in their labours by the advice and instruc- 
 tion of the judge, more or less strongly urged, at his discretion. 
 
 1 See 3 St. Ev. 932 ; 6 Law. Mag. 370. This subject has been successfally 
 illustrated in WUls, Cir. Ev. passim. 
 
 ^ It may deserve notice that, apart from this presumption, the sacred narrative 
 contains not one word to show that, after all, the judgment was right, that is, 
 that it was really in accordance with the fact. The proverbial wisdom of the 
 decision has, all along, been assumed rather than proved. 
 
 ' 1 Kings, ch. 3, w. 16 — 28. Suetonius, in his life of the Emperor 
 Claudian, ch. 15, states, that that monarch discovered a woman to be the real 
 mother of a young man, whom she refused to acknowledge, by commanding 
 her to marry him ; for rather than commit incest she confessed the truth. 
 Diodorus Siculus also speaks of a King of Thrace, who discovered which of 
 three claimants was the son of a deceased king of the Cimmerians, by ordering 
 each of them to shoot an arrow into the dead body. Two obeyed without 
 hesitation, but the other refused. See Baxter's Comprehensive Bible, note B. 
 to V. 25 of ch. 3 of 1 Kings. - Don Quixote, part 2, book 3, ch. 13. 
 
 ' Gr. Ev. § 45, in part. 
 
220 TESTIMONY OF ACCOMPLICES VEEBAL ADMISSIONS. [PABT I, 
 
 Indeed, some few general propositions in regard to matters of fact, 
 and ttie weight of testimony, are now uniyersally taken for granted 
 in the administration of justice, and are sanctioned by the usage of 
 the bench. ^ Such, for instance, is the caution given to juries, to 
 regard with distrust the testimony of an accomplice, unless it be 
 materially confirmed by other evidence. There is no rigid pre- 
 sumption of the common law" against such testimony ; yet experi- 
 ence has shown that it is little worthy of credit ; and on this 
 experience the usage is founded.^ A similar caution should prevail 
 in regard to mere verbal admissions of a party, this kind of evidence 
 being subject to much imperfection and mistake.^ So, if a witness 
 be detected in telling a falsehood in one part of his testimony, the 
 jury will be advised to place Uttle reliance on the remainder of his 
 narrative. 
 
 1 See New York Civ. Code, § 1852. 
 
 ^ See further as to the corroboration of accomplices, post, §§ 967 — 971. 
 ' 5 0. & P. 542, n., per Parke, J. ; K. v. Simons, 6 C. & P. 541, per Alderson, 
 B. ; Williams v. "Williams, 1 Hagg. Cons. 304. See post, §§ 861, 862. 
 
ALLEGATIONS AND EVIDENCE MUST COERESPOND. 221 
 
 PAET IL 
 
 EULES GOVERNING THE PRODUCTION OF TESTIMONY. 
 
 CHAPTER I. 
 
 COEEESPONDENCE OF EVIDENCE WITH ALLEGATIONS ; SUBSTANCE 
 OF ISSUE ; VAEIANCE ; AND AMENDMENT. 
 
 § 217.^ The production of evidence to the jury is governed by § 172 
 certaia principles, which may be treated under four general rules. 
 First, the evidence must correspond with the allegations, but the 
 substance only of the issues need be proved ; secondly, the evidence 
 must be confined to the points ia issue ; thirdly, the burthen of 
 proving a proposition at issue lies on the party holding the sub- 
 stantial affirmative ; and fov/rthly, ihe best evidence, of which the 
 case in its nature is susceptible, must always be produced. These 
 rules will now be considered in their order. 
 
 § 218.^ The pleadings are composed of the vsritten allegations § 173 
 of the parties, terminating in propositions distinctly affirmed on one 
 side, and denied on the other, called the issues. If these are pro- 
 positions of fact, they must, as a general rule,^ be tried by the jury, 
 and the Jirst rule, which it is important to remember, is, that 
 the evidence must correspond with the allegations, but that it is 
 sufficient if the substance of the issues be proved. As one of the 
 main objects of pleading is to apprise the parties of the specific 
 nature of the question to be tried, and as this object would be de- 
 feated, if either party were at liberty to prove facts essentially 
 
 1 Gr. Ev. § 50, slightly. " Gr. Ev. § 51, in part, as to &st six Knes. 
 
 3 As to when questions of fact may be tried without a jury, see Judicature 
 Act, 1873, §§ 56, 57 ; and Rules of Sup. Ct., Ord. xxxvi, RR. 2, 3, 5, 6, 26. 
 The defendant has still a right under R. 3, to insist on a trial before a judge 
 and jury, Lugg v. Silber, L. R., 1 Q. B. D. 362 ; 45 L. J., Q. B. 460, S. C. See, 
 also, Bordier v. Burrell, L. R., 5 Ch. ,D. 512, per Jessel, M.R. 
 
222 ABUSES OF OLD LAW OF VARIANCE. [PART II. 
 
 different from those which he has stated on the record, as consti- 
 tuting his claim or charge on the one hand, or his defence on the 
 other, the necessity of estahlishing such a general rule as the 
 present becomes apparent, and the only remaining question concerns 
 its limitation and extent.^ Great strictness was formerly required 
 in the application of this rule ; almost every disagreement between 
 the allegation and the proof, except in matters clearly impertinent, 
 being held to constitute what was called a vwriance, the conse- 
 quences of which were as fatal to the party on whom the proof lay, 
 as a total failure of evidence. 
 
 § 219. Thus, in an action of assumpsit for the breach of warranty § 173 
 of a horse, where the declaration stated a general warranty, and the 
 proof was that the defendant had warranted the horse sound every- 
 where, except a kick on the leg, the plaintiff was nonsuited on 
 account of this variance, although the unsoundness of which he 
 complained, and which he established at the trial, was a dropsy.^ 
 So, where a declaration in ejectment described the premises as 
 situate in the united parishes of St. Giles-in-the-Fields, and St. 
 George, Bloomsbury, and it appeared that the parishes were united by 
 Act of Parliament for the maintenance of the poor, but for no other 
 purpose, and that the premises in question were in the parish of 
 St. George, Bloomsbury, this was held to be a fatal variance, though 
 it was idle to suppose that the defendant could have been misled by 
 the misdescription.^ To give but one more instance where hundreds 
 
 1 In tlie case of Caton v. Caton, 7 Ec. & Mar. Cas. 28, Dr. LusMngton very 
 sensibly observed : " The maxim ol the Eccles. Courts, and I may say of all 
 other courts, is to decide secundum allegata et probata. There must be both 
 charge and evidence ; the party cited is entitled to know the specific charge for 
 the purpose of defence. * * The difficulty I feel is to avoid the error of 
 adhering to this rule with pedantic strictness, and, on the other hand, not to 
 weaken a rule which is founded on one of the great principles of justice.'' See 
 Malcomson v. Clayton, 13 Moo. P. C. R. 206, per Ld. Chelmsford; and 
 The Ann, 1 Lush. Adm. E. 55, in which last case little trouble seems to have 
 been taken by the learned judges of the Privy Council to avoid the " pedantic 
 strictness '' alluded to by Dr. Lushington. See, also, Tyrer v. Henry, 14 Moo. 
 P. C. E. 83 ; KUgour v. Alexander, id. 177 ; The HasweU, 2 B. & Lush., Adm. 
 E. 24V ; The Amalia, id. 311. 
 
 2 Jones V. Cowley, 4 B. & C. 445, declared most justly by Alderson, B., to be 
 " a great disgrace to the English law," in Hemming v. Parry, 6 C. &. P. 580. 
 
 3 Goodtitle v. Lammiman, 2 Camp. 274. 
 
CHAP. I.] AMENDMENTS UNDER SUCCESSIVE STATUTES. 223 
 
 might easily be furnished, a plaintiff was nonsuited in an action for 
 defamation, because the libel, as set out on the record, imputed to 
 him " mismanagement or ignorance," whUe, according to the 
 evidence, the expressions really used in the libel, which had been 
 destroyed, were " ignorance or inattention."^ 
 
 § 220. The attention of the Legislature being at length drawn to § 174 
 the flagrant injustice which was thus constantly occasioned, a 
 partial remedy was provided in 1828 by the Act of 9 G. 4, c. 15 ;^ 
 but as that statute, though a salutary measure so far as it went, was 
 found to afford a very ineffectual remedy for an evil which all suitors 
 felt to be highly oppressive, larger powers of amendment were 
 granted in 1833 to the English judges, and in 1840 to the Irish 
 judges, by the respective Acts of 3 & 4 W. 4, c. 42, §§ 23 & 24, 
 and 8 & 4 V., c. 105, §§ 48 & 49. In 1852, the Legislature again 
 interposed, and by §§ 34, 35, 37 & 222 of the Common Law Pro- 
 cedure Act,^ and §§ 49 & 53 of the Equity Procedure Act of the 
 same year,* conferred on the courts additional powers of granting 
 amendments. In the Common Law Procedure Acts of 1854 and 
 1860 further clauses were inserted, authorising the amendment of 
 " aU defects and errors in any proceedings under the provisions" 
 of those Acts respectively, " if duly applied for ; "^ and the Irish 
 Common Law Procedure Act of 1853 also empowered the judges in 
 that country to amend " all defects and errors in any writ, pleading, 
 record, or other proceeding in civil causes."^ 
 
 § 221. The law relating to amendments was not further altered 
 
 ' Brooks V. Blanshard, 1 C. & M. 779 ; 3 Tyr. 844, S. C. 
 
 2 As to tlie amendment of variances in civil actions under tMs Act, see 
 Smith V. Brandram, 2 M. & Qr. 244, 250 ; Bryant v. Eioke, M. & M. 359 ; 
 Brooks V. Blanskard, 1 C. & M. 779 ; 3 Tyr. 844, S. 0. ; Lamey v. Bishop, 
 4 B. & Ad. 472 ; 1 N. & M. 332, S. 0. ; Masterman v. Judson, 8 Bing. 224 ; 
 1 M. & Sc. 307, S. C. ; Jafl v. Oriel, 4 C. & P. 22 ; Whitehead v. Scott, 1 M. & 
 Roh. 137, n. 
 
 ^ 15 & 16 v., c. 76. See corresponding sections in the Irish Act of 16 & 17 
 v., c. 113, §§ 85—91. 
 
 ■* 15 & 16 v., c. 86. See corresponding sections in the Irish Act, 30 & 31 V. 
 e. 44, §§ 154, 158. 
 
 s 17 & 18 v., c. 125, § 96 ; 23 & 24 V., c. 126, § 36. 
 
 « 16 & 17 v., c. 113, § 231, Ir. 
 
224 AMENDMENTS UNDEE NEW RULES. [PAET II. 
 
 till the year 1875, when the Eules of Court framed under the new 
 Judicature Acts, came into operation. These rules, — without re- 
 pealing the earlier statutes on the subject, and indeed leaving 
 them still as the sole guides in all criminal proceedings, and in all 
 proceedings either on the Crown side of the Queen's Bench 
 Division, or on the Eevenue side of the Exchequer Division, or for 
 Divorce or other Matrimonial causes, or in the Court of Bankruptcy, 
 or in other inferior tribunals not subject to the Judicature Acts, — 
 have virtually introduced into the different Divisions of the Supreme 
 Court a more lax practice than formerly prevailed. Orders XYI. 
 and XXVII. contain the several Kules on this subject. 
 
 § 222. The three most important rules of Order XVI. are the 
 2nd, the 18th, and the 14th.^ The 2nd provides, that, " Where an 
 action has been commenced in the name of the wrong person as 
 plaintiff, or where it is doubtful whether it has been commenced in 
 the name of the right plaintiff or plaintiffs, the court or a judge 
 may, if satisfied that it has been so commenced through a bond fide 
 mistake, and that it is necessary for the determination of the real 
 matter in dispute so to do, order any other person or persons to be 
 substituted or added as plaintiff or plaintiffs, upon such terms as 
 may seem just." An application under this Rule cannot be made 
 ex parte,^ nor can it succeed unless there has been a bona fide 
 mistake.^ 
 
 § 223. Rule 13 provides that "no action shall be defeated by 
 reason of the misjoinder of parties, and the court may in every 
 action deal with the matter in controversy so far as regards the 
 rights and interests of the parties actually before it. The court or, 
 a judge may, at any stage of the proceedings, either upon or without 
 the application of either party, and on such terms as may appear to 
 the court or a judge to be just, order that the name or names of any 
 party, or parties, whether as plaintiffs or as defendants improperly 
 joined, be struck out, and that the name or names of any party or 
 
 ' See also ER. 1 & 3, which respectively render amendments unnecessary in 
 cases where too many plaintiffs or defendants have been joined. 
 
 2 Tildesley v. Harper, L. E., 3 Ch. D. 277, per HaU, V.-C. 
 
 3 Clowes V. HUliard, L. E., 4 Ch. D. 413, per Jessel, M. E. 
 
CHAP. I.J AMENDMENT OF PLEADINGS. 225 
 
 parties, whether plaintiffs or defendants, who ought to have been 
 joined, or whose presence before the court may be necessary in 
 order to enable the court effectually and completely to adjudi- 
 cate upon and settle all the questions involved in the action, be 
 added." ^ 
 
 § 224. Eule 14 provides, that " any apphcation to add, or strike 
 out, or substitute a plaintiff or defendant may be made to the court 
 or a judge at any time before trial by motion or summons, or at the 
 trial of the action in a summary manner." It would seem that, 
 under this Eule, a County Court Judge might amend a misjoinder 
 of defendants in a cause sent to him for trial from the High Court.^ 
 
 § 225. Order XXVII. is as follows :—" Amendment of Plead- 
 ing. Rule 1. The court or a judge may, at any stage of the pro- 
 ceedings, allow the plaintiff to amend the writ of summons^ in 
 such manner and upon such terms as may seem just. The court 
 or a judge may, at any stage of the proceedings, allow either party 
 to alter his statement of claim or defence or reply, or may order to 
 be struck out or amended any matter in such statements respectively 
 which may be scandalous, or which may tend to prejudice, em- 
 barrass, or delay the fair trial of the action, and all such amend- 
 ments shall be made as may be necessary for the purpose of deter- 
 mining the real questions or question in controversy between the 
 parties. 
 
 2. The plaintiff may, vsdthout any leave, amend his statement of 
 claim once at any time before the expiration of the time limited for 
 reply and before replying, or, where no defence is dehvered, at any 
 time before the expiration of four weeks from the appearance of the 
 defendant who shall have last appeared. 
 
 3. A defendant who has set up in his defence any set off or 
 
 1 The Eule goes on to provide, that if a plaintiff be added, it must be with 
 his consent, and that if a defendant be added, he must be served with a summons 
 or notice. 
 
 ^ See Bennison v. Walker, 7 Law Eep., Ex. 143. 
 
 3 See Cornish v. HocMn, 1 E. & B. 602 ; Leigh v. Baker, 2 Com. B., N. S. 
 367. 
 
226 AMENDMENT OF PLEADINGS. [PAET II. 
 
 counter-claim may, without any leave, amend such set-off or counter- 
 claim at any time before the expiration of the time allowed him for 
 pleading to the reply, and before pleading thereto, or in case there 
 be no reply, then at any time before the expiration of twenty-eight 
 days from the filing of his defence. 
 
 4. Where any party has amended his pleading under either of 
 the last two preceding rules, the opposite party may, within eight 
 days after the delivery to him of the amended pleading, apply to the 
 court, or a judge, to disallow the amendment, or any part thereof, 
 and the court or judge may, if satisfied that the justice of the case 
 requires it, disallow the same, or allow it subject to such terms as 
 to costs or otherwise as may seem just. 
 
 5. Where any party has amended his pleading under Eule 2 or 
 3 of this Order, the other party may apply to the court, or a judge, 
 for leave to plead or amend his former pleading within such time 
 and upon such terms as may seem just. 
 
 6. In all cases not provided for by the preceding rules of this 
 Order, apphcation for leave to amend any pleading may be made 
 by either party to the court, or a judge in chambers, or to the judge 
 at the trial of the action, and such amendment may be allowed upon 
 such terms as to costs or otherwise, as may seem just. 
 
 7. If a party, who has obtained an order for leave to amend a 
 pleading delivered by him, does not amend the same within the time 
 limited for that purpose by the Order, or if no time is thereby 
 limited, then within fourteen days from the date of the order, such 
 order to amend shall, on the expiration of such Kmited time as 
 aforesaid, or of such fourteen days, as the case may be, become ipso 
 facto void, unless the time is extended by the court or a judge. 
 
 8. A pleading may be amended by written alterations in the 
 pleading which has been delivered, and by additions on paper to be 
 interleaved therewith if necessary, unless the amendments require 
 the insertion of more than 144 words in any one place, or are so 
 numerous or of such a nature that the making them in writing would 
 render the pleading difficult or inconvenient to read, in either of 
 which cases the amendment must be made by delivering a print of 
 the pleading as amended. 
 
 9. Whenever any pleading is amended, such pleading when 
 amended shall be marked with the date of the order, if any, under 
 
CHAP. I.J AMENDMENT OP PLEADINGS. 227 
 
 which the same is so amended, and of the day on which such 
 amendment is made, in manner following, viz : — 
 ' Amended day of .' 
 
 10. Wheneyer a pleading is amended, such amended pleading 
 shall be deUvered to the opposite party within the time allowed for 
 amending the same." 
 
 § 226. From these Eules it wUl he seen, 1st, that the court 
 or a judge may now, at any stage of the proceedings, allow the 
 plaintiff to amend the writ of summons, and either party to alter 
 his statement of claim or defence or reply ; 2nd, that all such 
 amendments shall he made as may be necessary for the purpose of 
 determining the real questions in controversy ; 3rd, that the appU- 
 cation for leave to amend any pleading may be made by either party 
 to the court or a judge in chambers, or to the judge at the trial of 
 the action ; and lastly, that such amendment may be allowed upon 
 such terms as to costs or otherwise as may seem just. 
 
 § 227. The powers of amendment conferred on the judges by 
 these rules will unquestionably be productive of signal benefit to 
 suitors, if, in furtherance of this salutary design, they are exercised, 
 as they ought to be, in a Uberal spirit.^ As yet however few de- 
 cisions have been pronounced upon the subject, and these few do 
 not very materially illustrate the operation of the new law. 
 
 § 228. Perhaps the most important case which has hitherto been 
 determined is that of Budding v. Murdock.^ That was a suit to 
 
 1 See Parry v. Fairhurst, 2 C. M. & R. 196, per Alderson, B. ; Sainsbury v. 
 Matthews, 4 M. & W. 347, per Parke, B. ; Ward v. Pearson, 5 M. & W. 18, per 
 id. ; Evans v. Fryer, 10 A. & E. 615, per Williams, J. ; Pacific St. Navig. Co. 
 V. Lewis, 16 M. & W. 792, per Pollock, C. B. ; Smith v. Knowelden, 2 M. 
 & Qr. 561 ; 9 Dowl. 402, S. C. See, also, St. Losky v. Green, 9 C. B., N. S. 376, 
 per Byles, J., who observes in the true spirit of an enlightened law reformer, — 
 " Various statutes have, from time to time for more than 500 years, been passed, 
 from the 14 Ed. 3, c. 6, downwards, to facilitate amendments, but the strict 
 and almost perverse construction which the judges put upon them, rendered 
 them nearly abortive. But now a totally different principle prevails. Every 
 amendment is to be made, which is necessary for determining the real question 
 in controversy between the parties." 
 
 2 L. R., 1 Ch. D. 42, per Jessel, M. R ; 45 L. J., Ch. 213, S. C. 
 
 Q 2 
 
228 AMENDMENT OF PLEADINGS. [PAET II. 
 
 enforce an alleged right to a flow of water. The plaintiff rested his 
 title, first, on a deed, and, next, on a prescription, but at the hearing ^ 
 he failed on both points. He then contended that the watercourse 
 had been constructed by him at considerable expense, and that the 
 defendant's ancestor had stood by and acquiesced, thus giving him 
 a title to maintain his suit. Thereupon the Master of the EoUs 
 gave him leave to amend, the defendant being at liberty to put in 
 a further answer, both parties to bring forward fresh evidence, and 
 the costs to be reserved. In King v. Corke' the plaintiff had 
 charged the defendant with wilful neglect, but had not alleged 
 any particular instance, and at the hearing he was allowed to 
 amend the bill by specifying certain acts which had been dis- 
 closed by the answer, but the terms imposed upon him were, 
 first, that the defendant should have leave to answer further, 
 and, next, that he himself should not go into any new evidence, 
 and should pay the costs of the day. In another case^ a biU 
 to set aside a settlement on the ground of fraud and surprise 
 was allowed to be amended at the hearing, by setting up a case of 
 infirmity of mind on the part of the settlor, but there also the 
 defendant was permitted to put in a further answer and evidence. 
 A defendant has also been allowed, after putting in with other 
 defendants a joint statement of defence, to deUver a separate supple- 
 mental statement, he having been advised that an independent 
 ground of defence was open to him.* Of course in this case he was 
 ordered to indemnify the plaintiff against the costs rendered neces- 
 sary by the amendment. 
 
 § 229. Again, it has been held by one of the Vice-Chancellors, 
 that an action might, by amendment of the writ and statement of 
 claim, be turned into an information and action without prejudice 
 to a pending motion in the action, the sanction of the Attorney- 
 General having first been obtained. ^ As all questions of amend- 
 
 ' Had this been a trial by jury the result might have been different. See 
 post, § 240. 
 
 2 L. E., 1 Ch. D. 57 ; 45 L. J., Oh. 190, S. C. 
 
 3 Eoe V. Davies, L. E., 2 Ch. D. 729. 
 
 * CargUl V. Bower, 46 L. J., Ch. 175. 
 
 * Caldwell 1). Pagham Harbour Eeclamation Co.,L. E.,2 Ch. D. 221 per Hall 
 V.-C. ' ' 
 
CHAP. I.J AMENDMENTS ALLOWED TJNDEE OLD LAW. 229 
 
 ment depend upon the discretion of the judge, the Court of Appeal^ 
 will be yery unwilling to interfere with that discretion, unless, in a 
 case where it is obvious that some serious mischief would result 
 from non-interference.^ 
 
 § 230. As the decisions under the Judicature Acts and Orders 
 are neither numerous nor important, it will still be advisable, for 
 the purpose of explaining the general nature of variance, and of 
 marking the distinction between material and immaterial allegations, 
 to refer to some of the cases decided under the earlier statutes.^ 
 And first, as to those cases in which an amendment has been 
 allowed. 
 
 § 231. In the case of May V. Footner,* the declaration stated § 182a 
 that the defendant had entered certain land of the plaintiff. The 
 real questions in dispute were, first, whether the land was the 
 .plaintiff's property ,* and, next, whether there was a public footway 
 across it. At the trial, it turned out that the close in question was, 
 at the time of the trespass, in the actual possession of a tenant of 
 the plaintiff, whereupon the plaintiff was allowed by the judge to 
 amend the declaration, so as to adapt it to an injury to his rever- 
 sionary interest. The court subsequently held that this amend- 
 ment had been properly made. In another case, where Issue had 
 been taken on an allegation that a certain cargo of goods was 
 not delivered in March, it appeared at the trial that this was 
 strictly true, but that it did not raise the real question, which 
 was whether the cargo had been delivered in such time that the 
 defendant was bound to accept it. Thereupon the judge, at the 
 instance of the plaintiff, amended the declaration by inserting an 
 averment that the plaintiff, at the defendant's request, had delayed 
 the shipment, and that the defendant had promised to accept a 
 
 ' See Rules of Sup. Ct., Ord. Iviii., R. 5. 
 
 2 Golding 11. Wharton Salt Works Co., L. R., 1 Q. B. D. 374, per Ct. of App. 
 
 3 Those who wish to understand the very old doctrine of variance, and to 
 trace its oppressive operation previously to the passing of the remedial statutes, 
 will find the subject fully and ably treated in 1 St. Ev. 430—494. See, also, 
 1 Ph. Ev. 503, et seq. 
 
 " 25 L. J., Q. B. 32 ; 5 E. & B. 505, S. C, 
 
230 AMENDMENTS ALLOWED UNDEE OLD LAW. [PAKT II. 
 
 cTelivery of that shipment within a reasonable time, and had exonerated 
 the plaintiff from delivering in March. This amendment was also 
 upheld by the court above.^ 
 
 § 232. In an action of slander, where the words charged in the § 184 
 declaration were, " S. is to be tried at the Old Bailey, &c." and 
 those proved to have been really spoken were, "I have heard that S. 
 is to be tried, &c." the court held that the variance might be 
 amended on payment of costs, though it was urged, that as the ex- 
 pression " I have heard " reduced the charge from a direct assertion 
 to mere idle gossip, the defendant was prejudiced by the amendment, 
 because, had these words been originally declared upon, he might 
 have suffered judgment by default, or otherwise have pleaded a 
 justification.^ Mr. Justice Bosanquet observed, that the intro- 
 duction of the words " I have heard " left the slander as actionable 
 as before, although the amount of damages might be lessened ; — 
 that a variance, which is not material to the issue raised, but 
 which may affect the quantum of damages, was not within the 
 contemplation of the legislature when speaking of the " merits of 
 the case ; " — and that, as the damages were given for the words as 
 proved, and as the defendant did not apply to amend his pleadings 
 or to put off the trial, it did not appear how he could have been 
 prejudiced in his defence.^ This case, therefore, is important, as 
 showing that an amendment should not be refused, simply because 
 it may lessen the amount of damages, provided that it cannot 
 affect the substantial line of defence. In another action of slander, 
 where the words alleged to have been spoken of and concerning 
 the plaintiff, as a surgeon, were, " There have been many inquests 
 held upon persons who have died, because he attended them ; " 
 but those proved were, " Several have died that he (the plaintiff) 
 has attended, and inquests have been held on them," the judge 
 amended the record, and the court held that he was justified in 
 so doing.* So, where the only variance was, that the words stated 
 
 1 Tennyson v. O'Brien, 5 B. & B. 497. See Savage v. Canning, I. E., 1 C. 
 L. 434, per C. P. 
 
 2 Smith V. Knowelden, 2 M. & Gr. 561 ; 9 Dowl. 402 ; 2 Scott, N. R. 657 
 S. C. 
 
 3 2 M. & Gr. 565. 
 
 * Soutliee V. Denny, 1 Ex. E. 196. 
 
CHAP. I.] AMENDMENTS ALLOWED UNDER OLD LAW. 231 
 
 in the declaration were in the English language, while the ex- 
 pressions proYed were Welsh, an amendment was allowed.^ 
 
 § 233. In another action of defamation, an amendment was held § 185 
 to have been properly made when, on objection being taken that the 
 declaration contained the mere substance of the libel, a verbatim 
 copy of the defendant's letter was set out on the record.^ So, where 
 the declaration alleged that the defendant published a libel, " con- 
 tained in and being an article in a certain weekly paper, called the 
 'Paul Pry,' " and it was proved that he gave a slip of printed paper, 
 containing the libellous matter, to several persons to read ; but it did 
 not clearly appear that it had been cut from that newspaper, the 
 record was amended without any terms being imposed on the 
 plaintiff, by striking out the allegation marked in italics.^ Again, 
 when a plea of justification, in an action for a malicious prose- 
 cution on a charge of receiving stolen goods, alleged that the 
 goods had been stolen by " some person unknown," the judge at 
 the trial was held to have rightly allowed these three words to be 
 struck out, and the name of the party who was proved to have 
 taken the goods to be substituted in their place.* 
 
 § 284. The case of Whitwill v. Scheer^ is important as deciding § 186 
 that, where a declaration in assumpsit had stated a special contract, 
 and had then contained an erroneous allegation in conformity with 
 its supposed legal effect, such allegation might either be struck out, 
 or so altered as to express correctly the real meaning of the 
 contract. 
 
 § 235. In several cases an amendment has been made, where § 187 
 the contract, or tort, or custom declared upon, has turned out to 
 
 1 Jenkins v. Phillips, 9 C. & P. 766, per Coleridge, J. 
 
 ^ Saunders v. Bates, 1 H. & N. 402. 
 
 3 Foster v. Pointer, 9 C. & P. 718, per Gumey, B. See also Pater v. Baker, 
 3 Com. B. 831. 
 
 ^ Pratt V. Hanbury, 14 Q. B. 190. See, also, West v. Basendale, 9 Com. B. 
 141 ; and Hailes v. Marks, 30 L. J., Ex. 389 ; 7 H. & N. 56, S. C. 
 
 5 8 A. & E. 301 ; 3 N. & P. 391, S. C. But see Bowers v. Nixon, 2 C. & Kir. 
 372, cited post, § 238. 
 
232 AMENDMENTS ALLOWED UNDEE OLD LAW. [PABT II. 
 
 be either ynore or less comprehensive than the one proTed.-' Thus, 
 the statement of a general warranty of a horse has been amended 
 by substituting an allegation of a qualified warranty, where the 
 defence did not depend upon the qualification introduced.^ So, 
 where the declaration alleged that the defendant promised to lay 
 out certain money in the purchase of a government annuity, and 
 then averred as a breach, that he had not done so, but had placed 
 it in the hands of some private company, an amendment was 
 allowed by substituting the word "security" for "annuity," the 
 evidence showing that the money had iu fact been received for the 
 purpose of investing it in some government security.^ 
 
 § 236. In other actions a like amendment has been allowed, § 189 
 where a contract, a duty, an instrument, or other matter has been 
 misdescribed on the record. Thus, in Hanbury v. Ella,* the 
 declaration stated that the defendants, in consideration of the 
 plaintiffs supplying beer to a third party, promised to pay them 
 the amount of the beer so supplied, and in support of this 
 statement a written guarantee was put in. This was a variance, 
 since the declaration showed an original liability created, while 
 the evidence merely proved a collateral one, but the court allowed 
 an amendment to be made, by substituting the word " guarantee" 
 for " pay," as the mistake could not under the circumstances 
 have misled the defendants. So, the record has been amended, 
 where the declaration alleged an undertaking by the defendants 
 to carry and deliver certain goods, and the proof was that the 
 undertaking was to forward them ;^ — where in an action by the 
 indorsee against the drawer of a bill of exchange, the plaintiff 
 alleged a presentment to the acceptor, but proved that the 
 acceptor was dead, and that the bill had been presented to his 
 
 1 See Pacific St. Navig. Co. v. Lewis, 16 M. & W. 783. 
 
 ' Hemming v. Parry, 6 C. & P. 580, per Alderson, B. ; Mast v. Densham, 1 
 M. & Rob. 442, per id. ; Read v. Dunsmore, 9 C. & P. 588. 
 
 3 Gurford v. Bayley, 3 M. & Gr. 781 ; 4 Scott, N. R. 398 ; 1 Dowl. N. S. 
 519, S. C. See also Evans v. Fryer, 10 A. & E. 609 ; 2 P. & D. 501, S. C. ; 
 May. of Carmartlien v. Lewis, 6 C. & P. 608. 
 
 " 1 A. & E. 61 ; 3 N. & M. 438, S. C. 
 
 s Parry v. Fairhurst, 2 C. M. & It. 190 ; 5 Tj-r. 685, S. C. 
 
CHAP. I.] AMENDMENTS ALLOWED UNDER OLD LAW. 233 
 
 executor ; ^ — where the holder of a cheque, in suing the maker, 
 alleged in his declaration that he had giyen due notice of dis- 
 honour, but merely proved at the trial that he had a valid excuse 
 for giving no notice ; ^- — where, to an action on a bill of exchange, 
 the plea averred that the bill was accepted on an agreement 
 that it should be in satisfaction of a large sum lost, in part at 
 hazard, and in part at vingt-un, and no proof was given of 
 money lost at vingt-un ; ' — where a guarantee was alleged in the 
 declaration to have been given in consideration of advances to be 
 made by A., and it appeared by the guarantee that the advances 
 might be made by A., or by any member of his firm;* — where 
 an agreement to grant a lease was stated in the pleadings to 
 have been made between the defendant and the plaintiff, and it 
 appeared at the trial that the real agreement was between the 
 defendant and two other persons, devisees in trust under the will 
 of one Miller of the first part, and the plaintiff of the other part, 
 but that it had been executed by the plaintiif and defendant 
 alone ; ^- — where the contract, as alleged in the declaration, was 
 that the defendant should build a room, booth, or building, and 
 fit it up according to certain plans agreed upon, for the sum of 
 20L,' by the 28th of June, and that proved was, to erect certain 
 seats and tables, to be completed four or five days before the 28th 
 of June, for 25L, and it did not appear that any plans had been 
 prepared, but the defendant had pleaded non-assumpsit, and that 
 the contract was rescinded by consent ; ° — where similar pleas 
 
 » Cauat v. Thompson, V Com. B. 400 ; 6 Dowl. & L. 621, S. C. 
 
 2 Jackson v. Carrington, 2 0. & Kir. 750, per Parke, B. In this case the 
 trial was postponed, and the plaintiff had to pay the costs of the day and of the 
 amendment. Whether the variance without amendment would have been 
 fatal, compare Burgh v. Legge, 5 M. & W. 418 ; Cordery v. Colvin, 14 Com. B., 
 N. S. 374 ; S. C, nom. Cordery v. ColviUe, 32 L. J., C. P. 210 ; Killby v. 
 Eochussen, 18 Com. B., N. S. 357 ; and Woods v. Dean, 32 L. J., Q. B. 1. 
 
 3 Cooke V. Stratford, 13 M. & W. 379 ; Masters v. Barrets, 2 C. & Kir. 715. 
 
 ■• Chapman v. Sutton, 2 Com. B. 634, 644 ; Boyd v. Moyle, id, 644 ; Hassall 
 ■0. Cole, 18 L. J., Q. B. 257. 
 
 * Boys v. Ansell, 5 Bing. N. C, 390. The court in this case held it un- 
 necessary to consider whether or not the variance was fatal, as it might clearly 
 be amended. See Gregory v. Duff, 13 Q. B. 608. 
 
 5 Ward %. Pearson, 5 M. & W. 16 ; 7 Dowl. 382, S. C. In this case the con- 
 tract as proved differed from that alleged in the nature of the work to be done. 
 
234 AMENDMENTS ALLOWED UNDEE OLD LAW. [PAET II. 
 
 had been pleaded to a declaration, which stated a contract by the 
 defendant to deliver to the plaintiff certain potatoes within a 
 reasonable time, to be paid for on delivery, and the evidence 
 established a contract that the plaintiff should have the potatoes 
 at digging-up time, and that he should find diggers ;^ — where, in 
 an action on a bond, the penalty was stated in the declaration to 
 be 260Z., and it appeared on the face of the instrument to be 
 200L;2 — where the plaintiff brought his action against a sheriff 
 for an escape, and proved a negligent omission to arrest ; ^ — where 
 an instrument, declared on as a bill of exchange, appeared by the 
 evidence to be a promissory note ; * and where a note was set out in 
 the declaration as made by the defendant, dated the 9th of Novem- 
 ber, 1838, and payable on demand, and the instrument proved at 
 the trial was a joint and several note, made by the defendant and 
 his wife, dated the 6th of November, 1837, and payable twelve 
 months -after date.^ In this last case, the defendant had pleaded 
 that he did not make the note, and the instrument produced 
 differed from that declared upon, in its date, in the parties to it, 
 and in its duration ; but there being no proof of the existence 
 of any other note between the parties, Mr. Baron Alderson ex- 
 pressed his opinion that " this was just the case in which the 
 Legislature intended that the discretionary power of amendment 
 should be exercised."* 
 
 § 287. Upon the trial of an issue of nul tiel record, — which, be § 183 
 it remembered, must be determined by the court, and not by a 
 judge and jury,'' — the court, under § 222 of the Common Law 
 Procedure Act, 1852, amended the declaration by inserting therein the 
 
 in the time for doing it, and in the price ; yet the court properly held that this 
 was precisely the case which the Act of Parliament was meant to meet. See 
 Jones V. Hutchinson, 10 Com. B. 515. 
 
 1 Sainsbury v. Matthews, 4 M. & W. 343 ; 7 Dowl. 23, S. C. 
 
 2 Hill V. Salt, 2 C. & M. 420. 
 
 3 Guest V. Elwes, 5 A. & E. 118 ; 2 N. & P. 230, S. C, 
 
 ■• Moilliet V. Powell, 6 C. & P. 233, per Alderson, B. ; Perry v. Fisher, Sp. 
 Ass. for Surrey, 1846, per Ld. Denman, MS. 
 
 ^ Beckett v. Button, 7 M. & W. 157 ; 8 Dowl. 865, S. 0, 
 
 ^ Beckett v. Button, 7 M. & W. 158. 
 
 ' Richardson v. Willis, 42 L. J., Ex. 15 ; 12 Cox, 298, S, C. 
 
CHAP. I.] AMENDMENTS REFUSED UNDER OLD LAW. 235 
 
 true date of the judgment recoyered.^ In Edwards v. Hodges,^ a 
 plea of "Not guilty by statute" was amended by inserting in the 
 margin an Act which had been omitted; and in Buckland v. 
 Johnson,^ where the plea, owing to a technical variance, was not 
 proved by the evidence, it was amended at Nisi Prius so as to raise 
 the substantial question, and the judge declined to impose upon the 
 defendant the costs of the day. In Knowlman v. Bluett,* the judge 
 at the trial went so far as to amend the declaration by increasing 
 the demand from 600L to 7501., and the court above held that he was 
 quite justified in so doing. Again, where an action had been 
 brought against the clerk of a local board of health, the court allowed 
 the proceedings to be amended by substituting the board as de- 
 fendants, instead of the clerk ; ^ and a similar amendment has been 
 sanctioned, where the board had sued in the name of their clerk in 
 lieu of their own name.^ 
 
 § 238. The cases in which amendments have been refused under § 181 
 the old law will not detain us long, and the more so as they furnish 
 no safe guide in interpreting the more liberal language of the new 
 rules. Indeed, it is clear that very many of the decisions are no 
 longer law. Not the least important case which has been deter- 
 mined on this point is that of Wilkin v. Eeed.'' There the declara- 
 tion alleged, that the defendant had fraudulently represented to the 
 plaintiff that the reason why he had dismissed a clerk, whom the 
 plaintiff was about to take into his service, was the decrease in his 
 business, and that the defendant had recommended the plaintiff to 
 try the clerk, and had knowingly suppressed the fact that he had 
 been dismissed on account of dishonesty. At the trial it appeared 
 in evidence, that the plaintiff had asked the defendant the cause of 
 the clerk's dismissal, and had been told in reply that it was in con- 
 sequence of the defendant's business having fallen off; that this 
 
 ' Noble V. Chapman, 14 C. B. 400. See also Hunter v. Emmanuel 15 Com. 
 B. 290, where the true amount recovered was inserted in the declaration. 
 
 - 15 Com. B. 477. ' Id. 145. 
 
 ^ 43 L. J., Ex. 29 ; 9 Law Rep., Ex. 1 S. C. See Watkins v. Morgan, 6 C. & P. 
 661. = Ld. Bolinbroke v. To-WTisend, 8 Law Eep., C. P. 645. 
 
 « Mills V. Scott, 8 Law Eep., Q. B. 496 ; 42 L. J., Q. B. 234, S. C. 
 
 ? 23 L. J., C. P. 193 ; 16 Com. g. 192, S. C. See, also, Lucas v. Tarleton, 
 27 L, J., Ex. 246. 
 
236 AMENDMENTS BEFOSED UNDER OLD LAW. [PART II. 
 
 answer was true ; but that the clerk had been guilty of embezzle- 
 ment while in the defendant's employ, and that the defendant, 
 ha-ving been asked no questions respecting the clerk's honesty, had 
 not communicated that fact to the plaintiff. On this evidence the 
 plaintiff's counsel applied to amend the declaration, by striking out 
 the allegation, that the defendant had fraudulently misrepresented 
 the reason of dismissal, and by substituting for it an averment, that 
 the defendant had fraudulently suppressed the fact that the clerk 
 had been guilty of dishonesty. Mr. Justice Maule, however, who 
 tried the cause, refused to allow the amendment, on the ground 
 that the real question in controversy was not whether the clerk had 
 been dishonest, or whether his former master had suppressed the 
 fact of his dishonesty, but whether the real cause of his dismissal 
 had been truly stated. The Court of Common Pleas afterwards 
 supported this ruHng, and held, first, that it is a matter, not of law, 
 but of fact, what "the real question in controversy between the 
 parties " is ; next, that this matter of fact must be determined, not 
 by the jury, but by the judge on a careful consideration of the 
 pleadings and the evidence ; and, lastly, that " the question in con- 
 troversy" is, in other words, the question which both parties reaUy 
 intended to have tried, and not any question which during the 
 course of the trial may for the first time be brought into controversy 
 by one of the litigants.-^ 
 
 § 239. Though the mere impropriety or harshness of an action § 192 
 ought to have no effect in influencing the decision of the judge,^ 
 the plaintiff has been refused an amendment where the matter 
 sought to be expunged had been purposely and improperly intro- 
 duced by him into the declaration, with the view of creating a 
 prejudice against the defendant ; as, for instance, where a count in 
 libel contained several averments and innuendoes unfairly connecting 
 the plaintiff with parts of the alleged libel, which, in fact, related 
 to other persons.^ Moreover, as the enactments for allowing amend- 
 ments at Nisi Prius were intended to meet variances arising from 
 
 1 See Holes v. Davis, 4 H. & N. 184. 
 
 2 Doe V. Edwards, 1 M. & Eoli. 321, per Parke, B. ; Doe v. Leach, 3 IL & Gr. 
 230. See Brennan b, Howard, 1 II. & N. 138. 
 
 ^ Prudhomme 13. Eraser, 1 M. & Piob. 435, per Ld. Denmaii. 
 
CHAP. I.J AMENDMENTS REFUSED UNDER OLD LAW. 237 
 
 mere slips or accidents, the judge will be very reluctant to allow an 
 amendment, where the party has intentionally framed his pleading 
 in such a manner as to give rise to the objection.^ Neither will a 
 judge amend the record, when it turns out at the trial that the 
 plaintiff has misconceived his remedy, and when he consequently 
 seeks to convert the proceedings into an action of a different 
 character.^ 
 
 § 240. The court has also refused to amend at Nisi Prius, where § 193 
 it appeared likely that the variance had prevented the defendant 
 from pleading a good bar to the action,^ or where the amendment 
 proposed would in all probability have caused the defendant either 
 to demur,* or to plead different pleas from those on the record,^ or 
 would have introduced an entirely new contract and new breach,^ or, 
 perhaps even, any entirely new matter.'' Thus, in an action of 
 covenant by the assignee of the reversion against the lessee, the 
 declaration, in deducing title to the plaintiff, set out a deed, whereby 
 the premises were appointed to him. The defendant traversed the 
 appointment, and the deed, on its production, was found to be 
 nugatory as an appointment, not being executed in pursuance of the 
 power. The plaintiff thereupon sought to amend his declaration by 
 setting out the deed at length, and by averring that a relationship 
 existed between the parties, so as to raise a covenant to stand seized 
 to uses ; but the court considered that the case was much too com- 
 plicated for an amendment to be made at Nisi Prius. If the de- 
 claration had thereby been rendered good, the defendant might have 
 
 1 Bowers v. Nixon, 2 C. & K. 372, per Maule, J. ; Clowes v. Hilliard, L. R., 
 4 Ch. D. 415, per Jessel, M. R. But see Whitwill v. Scheer, 8 A. & E. 301 ; 
 3 N. & P. 391, S. C, cited ante, § 234. 
 
 2 Jacobs V. Seward, 5 Law Rep., H. L. 464. 
 
 ' Ivey V. Young, 1 M. & Rob. 545, per Alderson, B. 
 
 " Evans v. Powis, 1 Ex. R. 601 ; Bury v. Blogg, 12 Q. B. 877 ; Martyn v. 
 Williams, 26 L. J., Ex. 117 ; 1 H. & N. 817, S. 0. 
 
 ' Perry ■». "Watts, 3 M. & Gr. 775, explained in Gurford v. Bayley, id. 784, 
 785 ; Frankum v. Ld. Falmoutli, 6 C. & P. 529 ; 2 A. & E. 452, S. C. 
 
 « Brashier v. Jackson, 6 M. & W. 549 ; 8 Dowl. 784, S. C. ; Bouclier v. 
 Murray, 6 Q. B. 362 ; Richards v. Bluck, 6 Dowl. & L. 325 ; 6 Com. B. 437, 
 S. C. ; Monorieflf v. Reade, 2 0. & Kii. 705. 
 
 ' David V. Preece, 5 Q. B. 440. See Gull v. Lindsay, 4 Ex. R. 45 ; and 
 Addington v. Magan, 10 Com. B. 576. 
 
238 ADDING PLEAS AT TBIAL. [PABT II. 
 
 put on the record different pleas from those before pleaded ; hut if 
 not, then she might have demurred.^ So, in an action on the case 
 for diverting a stream of water, to which the plaintiff claimed a 
 right as the possessor of a mill, when, in fact, he was entitled to it 
 as the owner of the adjoining lands, the court considered that the 
 declaration ought not to be amended, as the defendant had traversed 
 the plaintiff's right in respect of the mill, and might have pleaded 
 differently had the declaration claimed the right in respect of the 
 land.2 
 
 § 241. Independent of actual decisions little doubt can be now § 182 
 entertained that the judge may allow a plea to be added at the trial, 
 whenever it is necessary for the purpose of placing on the record 
 the real question in dispute.^ It often happens, as was once observed 
 by Mr. Justice Maule, that in consequence either of imperfect in- 
 structions given to the pleader, or of ignorance, or of oversight, the 
 substantial point intended by the parties to be tried is not raised by 
 the pleadings ; * and when this occurs it would be obviously unjust 
 to refuse an amendment. It would seem, however, not to be im- 
 perative on the court to allow a plea to be substituted after issue 
 joined, even though the application be made prior to the trial, and 
 though it be supported by an affidavit that the real question in con- 
 troversy between the parties can only be raised on the record by the 
 introduction of the proposed plea.' The case in which this point 
 was ruled was an action for money lent, to which the defendant had 
 pleaded that he was " never indebted." After issue joined he 
 applied to the court for leave to substitute a plea, which set up as a 
 defence that the loan was contracted for an illegal purpose, and he 
 swore that the real point in dispute was whether the plaintiff was 
 debarred from recovering on the ground of the illegality. In support 
 of the motion the defendant contended that he was entitled as of 
 
 ' Perry v. Watts, 3 M. & Gr. 775, explained by Maule, J., in Gurforcl v. 
 Bayley, id. 784, 785. 
 
 ^ Franktun v. Ld. Falmoutli, 6 C. & P. 529 ; 2 A. & E. 452 ; 4 N. & M 
 330, S. C. 
 
 2 Mitchell 1). Crassweller, 13 Com. B. 237. 
 
 " Willdn V. Reed, 23 L. J., 0. P. 195, 197 ; 15 Com. B. 205, S. C. 
 
 * Ritchie v. Van Gelder, 9 Ex. R. 762. 
 
CHAP. I.] PRACTICAL POINTS BESPECTING AMENDMENTS. 239 
 
 right to the rule as prayed, for the Act expressly states that all 
 amendments necessary for determining the real question in con- 
 troversy " shall be so made." Notwithstanding this argument the 
 rule was refused. 
 
 § 242. It remains to notice a ie-w practical points which have been § 197 
 decided respecting the operation of the earlier Statutes. And, first, 
 it has been held that the amendment must be made, if at all, during 
 the trial and before the verdict ; ^ unless, indeed, the opposite party 
 waives his right to enforce this amount of "strictness, in which case 
 it vsdll suf6.ce if the amendment be made within the time allowed 
 for moving, provided it ultimately agrees with the judge's note;^ 
 secondly, it must be allowed by the presiding judge, who, it seems, 
 may be the sheriff or his ofScer ; ^ thirdly, when, in consequence of 
 an amendment being allowed in a declaration, some alteration 
 becomes necessary in the plea, the court will direct this also to be 
 made, should the counsel for the defendant decline to interfere or to 
 amend the pleadings himself;* and, fourthly, the court will not 
 control the discretion of the judge either in refusing^ or allowing ° 
 an amendment to be made, unless upon clear proof that he was 
 wrong, or, at least, unless it be shown, by affidavit, that the de- 
 fendant has been prejudiced by the amendment. In all these cases, 
 if both parties consent, a larger power may be exercised, either by 
 the judge at Nisi Prius, by the person substituted in his stead, or 
 by the court above.'' 
 
 1 BrasHer v. Jackson, 6 M. & W. 549 ; 8 Dowl. 784, S. C. ; Doe v. Long, 9 
 C. & P. 777, per Coleridge, J. 
 
 2 Jones v. Hutoliinson, 10 Com. B. 515. 
 
 3 Hill V. Salt, 2 C. & M. 420 ; 4 Tyr. 271, S. C. See 30 & 31 V., c. 142, § 6. 
 "• Perry v. Fislier, Sp. Ass. Surrey, 1846, per Ld. Denman, MS. 
 
 6 Doe V. Errington, 1 A. & E. 750 ; 3 N. & M. 646 ; 1 M. & Rob. 344, n., 
 S. C. ; Jenkins v. Phillips, 9 C. & P. 768, per Coleridge, J. ; WMtwiU v. 
 Scheer, 8 A. & E. 309, per Patteson, J. ; Holden v. Ballantyne, 29 L. J., Q. B. 
 148. See Lucas v. Beale, 10 Com. B. 739 ; Brennan v. Howard, 1 H. & N. 
 138 ; 25 L. J., Ex. 290, S. C. 
 
 8 Sainsbury v. Matthews, 4 M. & W. 347, per Ld. Abinger. 
 
 ? Parry v. Fairhnist, 2 C. M. & E. 190 ; 5 Tyr. 685, S. C, noticed by 
 Patteson, J., in Guest v. Elwes, 5 A. & E. 126 ; Eoberts v. Snell, 1 M. & Gr. 
 577 ; Brashier v. Jackson, 6 M. & W. 558. 
 
240 COSTS OF AMENDMENTS. [PAET II. 
 
 § 243. With respect to costs, it is difficult to lay down any dis- § 198 
 tinct rule, as each case must, in a great degree, depend upon its 
 own particular circumstances ; still it may be advanced as a safe 
 proposition, that the court will not allow any additional expense to 
 be thrown upon the opposite party by reason of any amendment.^ 
 Thus, if the defendant has put pleas on the record, the proof of 
 which will be rendered unnecessary by the alteration proposed, or 
 has summoned witnesses, whom it will become needless to call, or 
 has otherwise been at any bona fide expense in preparing to disprove 
 the original allegations, the plaintiff will only be permitted to amend 
 on payment of the costs occasioned by his error ; and if it appear 
 probable that the defendant, in consequence of the amendment, will 
 require to alter his pleas, or to summon other witnesses, the trial 
 will at least be postponed, and the plaintiff be obliged to pay the 
 costs of the postponement. In cases where the variance cannot 
 have misled the opposite party, the amendment will be allowed 
 without the payment of any costs. ^ 
 
 § 244. Although the judge at Nisi Prius has a discretionary § 199 
 power of awarding or refusing costs in the event of an amendment, 
 the court will take care that no injustice is done by his accidentally 
 omitting to give directions on the subject ; and, therefore, when an 
 order had been obtained by the plaintiff, enabling him to withdraw 
 the record and amend the declaration, but no mention was made 
 respecting the costs ; the court held that, as the variance had been 
 corrected for the benefit of the plaintiff, he was bound to liquidate 
 the defendant's costs of the day.^ 
 
 § 245. As the preceding rules respecting amendments do not 
 apply to any proceeding on the Eevenue side of the Exchequer 
 Division of the High Court, it must be remembered that, under the 
 Act of 22 & 23 v., c. 21, § 9, aU amendments available by the 
 222nd Section of the Common Law Procedure Act, 1852,* are ex- 
 
 ' Smith V. Brandram, 2 M. & Gr. 250, per Tindal, C. J. 
 
 2 St. Losky V. Green, 30 L. J., C. P. 19 ; 9 Com. B., N. S. 370, S. C. 
 
 3 Skinner v. Lond. & Brigh. Ey. Co., 1 L. M. & P. 189 ; 4 Ex. R. 885, S. C. 
 * 15 & 16 v., c. 76. 
 
CHAP. I.] AMENDMENTS IN COUNTY CTS. — IN CrVIL BILL CTS. 241 
 
 tended to all such proceedings. In any proceeding, too, before the 
 Court of Bankruptcy, any amendment may be allowed, " which in 
 the judgment of the court or registrar ought to be allowed, on such 
 terms as may be ordered."^ 
 
 § 246. Large powers of amendment are granted to the County § 200 
 Courts, when errors have been committed with respect to the names, 
 descriptions, numbers, or representative characters of the plaintiffs 
 and defendants ; ^ and, in addition to these powers, it is provided by 
 § 57 of the Act of 19 & 20 V., c. 108, that " the judge of a County 
 Court may at all times amend all defects and errors in any pro- 
 ceeding in such court, whether there is anything in writing to amend 
 by or not, and whether the defect or error be that of the party apply- 
 ing to amend or not ; and all such amendments may be made with or 
 without costs, and upon such terms as to the judge may seem fit ; and 
 all such amendments as may be necessary for the purpose of deter- 
 mining in the existing suit the real question in controversy between 
 the parties shall be so made, if duly appHed for," Still, if the 
 particulars of the plaintiff's claim do not disclose a case within the 
 jurisdiction of the County Court, the judge has no power to amend 
 them, so as to turn the complaint into one over which he has 
 cognisance.^ 
 
 § 247. The Civil Bill Courts in Ireland are intrusted with § 201 
 similar powers of making amendments by the Act of 14 & 15 V., 
 e. 57, which in § 106 enacts, that " it shall and may be lawful for 
 the several assistant barristers, and judges on appeal, and they are 
 hereby respectively empowered, in all cases, to amend all variances 
 between the statement of the cause of action in any civil bill, or 
 other process or proceeding in their respective civil bill courts, and 
 the evidence in support of such cause of action, and also to amend 
 all variances, omissions, and misdescriptions in the descriptions, 
 additions, and residence of the parties, or any of them, or other- 
 
 1 Bktcy., Eules of, 18Y0, r. 208. 
 
 2 See Cy. Ct. Kules, 1875, Ord. xvii.; and Cy. Ct. Rules, 1876, Ord. xvii., 
 r. 21. See Mills v. Scott, 8 Law Rep., Q. B. 496, cited ante, § 237. 
 
 3 Hopper V. Warburton, 32 L. J., Q. B. 104, per MeUor, J., in B. Ct. 
 
242 AMENDMENTS IN CKIMINAL PROCEEDINGS. [PAET 11. 
 
 wise howsoever, of or in any such process, or between the original 
 and any copy or copies thereof, provided such last-mentioned 
 variances, omissions, or misdescriptions shall not, in the opinion of 
 the assistant barrister, be calculated to mislead the defendant or 
 defendants therein ; and in every case of any misjoinder of parties 
 or causes of action, it shall and may be lawful for every assistant 
 barrister to strike out of the process the name or names of any one 
 or more plaintiffs or defendants, or any count or counts in such 
 process, by reason of whom or which such misjoinder shall arise, 
 and thereupon to proceed therein as to justice shall appertain."^ 
 
 § 248. The only statute which, prior to the year 1848, authorised § 202 
 the amendment of any variances in criminal cases was 9 G. 4, 
 c. 15 ; ^ and that Act, which was confined to variances appearing 
 between any matter in writing or in print produced in evidence, and 
 the recital thereof upon the record,^ merely applied to misdemeanors, 
 and then only to cases where the indictment or information was pre- 
 ferred before a court of oyer and terminer and general gaol delivery.^ 
 In 1848, however, more liberal views being entertained by the 
 Legislature, the provisions of that Act were extended to all offences 
 
 ' Further powers of amendment are given to the Civil Bill Cts., and to the 
 "judge of assize on appeal," by 27 & 28 V., c. 99, § 48, Jr. 
 
 2 See ante, § 220. 
 
 3 See R. V. Cooke, 7 C. & P. 559 ; E. v. Hewins, 9 C. & P. 786 ; R. v. 
 Christian, 0. & Marsh. 388. 
 
 '' This Act, — after reciting that " great expense is often incurred, and delay 
 or iaUure of justice takes place at trials, by reason of variances between writuigs 
 produced in evidence and the recital or setting forth thereof upon the record 
 on which the trial is had, in matters not material to the merits of the case, and 
 such record cannot now, in any case, be amended at the trial, and in some cases 
 cannot be amended at any time : " — for remedy thereof, enacts, that it shall be 
 lawful for every court of oyer and terminer, and general gaol delivery in 
 England, Wales, Berwick-upon-Tweed, and Ireland, if such court shall see fit 
 so to do, to cause the record on which any trial may be pending before any 
 such court in any indictment or information for any misdemeanor, when any 
 variance shall appear between any matter in writing or in print produced in 
 evidence, and the recital or setting forth thereof upon the record whereon the 
 trial is pending, to be forthwith amended in such particular by some oificer of 
 the court, on payment of such costs (if any), to the other party, as such court 
 shall think reasonable ; and thereupon the trial shaR proceed as if no such 
 variance had appeared ; and thereupon the papers, roUs, and other records of 
 the court shall be amended accordingly." 
 
CHAP, i.j LORD Campbell's ceiminal act of 1851. 243 
 
 whatever ; ' and, in the following year, similar powers of amendment 
 were conferred on all courts of general or quarter sessions in England.^ 
 These alterations in the law were no doubt steps in the right direc- 
 tion, but still they were found to afford a very ineffectual remedy 
 for the evil complained of; and consequently, in 1851, the inter- 
 position of Parliament was again invoked by Lord Campbell, and 
 an Act was at length passed,^ which has placed criminal pro- 
 ceedings,* on nearly the same footing with civil actions iu respect to 
 the amendment of variances between the record and the proof. 
 
 § 249. After reciting that "a failure of justice often takes place § 203 
 on the trial of persons charged with felony and misdemeanor, by 
 reason of variances between the statement in the indictment on, 
 which the trial is had, and the proof of names, dates, matters, 
 and circumstances therein mentioned, not material to the merits 
 of the case, and by the misstatement whereof the person on 
 trial cannot have been prejudiced in his defence;" — the statute 
 proceeds to enact, in § 1, that "whenever, on the trial of any 
 indictment for any felony or misdemeanor, 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 indictment, — or in 
 the name or description of any person or persons, or body politic 
 
 ' 11 & 12 v., c. 46, § 4, wMcli, — foUo-wing the language of the Act of G. 4, as 
 cited ante, § 248, n. 4, — enacts, " that it shall and may be lawful for any court 
 of oyer and terminer and general gaol delivery, if such court shall see fit so to 
 do, to cause the indictment or information for any offence whatever, when any 
 variance or variances shall appear between any matter in writuig or in print 
 produced in evidence, and the recital or setting forth thereof in the indictment 
 or information whereon the trial is pending, to be forthwith amended in such 
 particular or particulars by some officer of the court ; and after such amendment 
 the trial shall proceed in the same manner in all respects, both with regard to 
 the liability of witnesses to be indicted for perjury and otherwise, as if no such 
 variance or variances had appeared." 
 
 2 12 & 13 v., c. 45, § 10. Cts. of Quart. Sess. in Irel. have large powers of 
 amendment by 27 & 28 V., c. 99, § 49, Ir. s 14 & 15 y., c. 100. 
 
 ^ The Inferior Courts iu Scotland have now, under "The Summary Pro- 
 cedure Act, 1864," 27 & 28 v., c. 53, § 5, large powers of amending complaints 
 before them with respect to variances and other defects. 
 
 V. 2 
 
244 LORD Campbell's criminal act of 1851. [part ii. 
 
 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 stated or 
 alleged to be injured or damaged or intended to be injured or 
 damaged by the commission of such offence, — or in the Christian 
 name or surname, or both Christian name and surname, or other 
 description whatsoever, of any person or persons whomsoever 
 therein 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 of the indictment 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, whenever the same shall be proceeded with, in the 
 same manner in aU respects, and with the same consequences, 
 both with respect to the hability of witnesses to be indicted for 
 perjury 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 indorsed on the postea, and returned together 
 with the record, 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 
 indorsed on the indictment, or shall be engrossed on parchment, 
 and filed, together with the indictment, among the records of the 
 court." 
 
 § 250. The Act then contains a proviso, "that, in all such cases s 204 
 where the trial shall be so postponed as aforesaid, it shall be lawful 
 for such court to respite the recognisances of the prosecutor and 
 
CHAP. I.] AMENDMENTS IN CRIMINAL PEOCEEDINGS. 245 
 
 witnesses, and of the defendant, and his surety or sureties, 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 ; " and a 
 further proviso directs, " 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." 
 
 § 251. The second section enacts, ex majori cautela, that § 205 
 " every verdict and judgment, which shall be given after the 
 making of any amendment under the provisions of this Act, shall 
 be of the same force and efi'ect in all respects, as if the indict- 
 ment had originally been in the same form in which it was after 
 such amendment was made ;" while § 3 provides, that, "if it shall 
 become necessary at any time for any purpose whatsoever to 
 draw up a formal record, in any case where any amendment shall 
 have been made under the provisions of this Act, such record shall 
 be drawn up in the form in which the indictment was after such 
 amendment was made, without taking any notice of the fact of such 
 amendment having been made."^ 
 
 § 252. Under these salutary provisions it has been held, that § 206 
 an indictment charging the defendant with having obstructed a 
 footway may be amended, when one of the termini of the way 
 has been misdescribed, provided the variance be not calculated to 
 prejudice the defence ; ^ — that an amendment may be made when 
 the ownership of stolen property,^ or the stolen property itself,* is 
 wrongly described ; — that the misnomer of a party injured may be 
 
 1 See further as to the amendment of formal defects in indictment, § 25 of 
 the Act, cited post, § 280, n. 3. ^ R. v. Sturge, 3 E. & B. 734. 
 
 s R. V. Vincent, 2 Den. 464 ; R. v. Fullarton, 6 Cox, 194. 
 < R. V. Gumble, 42 L. J., M. C. 7 ; 2 Law Rep., C. C. 1 ; 12 Cox, 248, S. C. 
 
246 AMENDMENTS IN CEIMINAL PROCEEDINGS. [PAET II. 
 
 rectified ; ^ — that the misdescription of any persons described ia the 
 indictment may be set right ; ^ — ^that an erroneous date ascribed to 
 the passing of a statute may be struck out f — that, where an indict- 
 ment for perjury alleged that the crime was committed on a trial for 
 burning a barn, and it was proved that the actual charge was one of 
 firing a stack, the court had power to amend the variance;* — and 
 that it is not too late to apply for an amendment, even though 
 the counsel for the prisoner may have addressed the jury.^ This 
 last case is important, as it overrules a mischievous decision by 
 Williams, J., to the effect that an application to amend must at 
 latest be made before the case for the prosecution is closed.^ It 
 seems that, in general, the court will not amend an indictment 
 after plea, if, in its amended form, it would be open to a 
 demurrer.'' Neither can an amendment be made after verdict.* 
 Nor will the court amend an amendment, or restore an indict- 
 ment, once amended, to its original form.' Where a prisoner was 
 indicted for a statutable forgery, but the evidence only sustained a 
 forgery at common law, Mr. Justice Hill declined to amend the 
 indictment by striking out the word " feloniously," and thus con- 
 verting a charge of felony into one of misdemeanor.^" 
 
 § 253. Although Lord Campbell's Act has now been in operation § 207 
 for twenty-seven years, the decisions under it scarcely justify the 
 expression of any confident opinion as to the amount of liberality 
 with which its language will eventually be construed by the 
 courts. The narrow rules of interpretation, which have been 
 
 1 E. i;. Weltoa, 9 Cox, 297. 
 
 ^ R. V. Western, 37 L. J., M. C. 81 ; 1 Law Eep., C. C. 122 ; 11 Cox, 93, 
 S. C. 3 R_ ^_ Westley, BeU, C. C. 193. 
 
 ■• E. V. Neville, 6 Cox, 69, per Williams, J. ; R. v. Tymms, 11 Cox, 645, per 
 Lush, J. 
 
 * E. V. Fullarton, 6 Cox, 194, per Lefroy, C. J., and Monahan, C. J. 
 
 « E. n. Eymes, 3 C. & Kir. 326. 
 
 ' E. u Lallement, 6 Cox, 204. Sed qu. The case, as reported, is not 
 satisfactory. 
 
 " E. 0. LarHn, 6 Cox, 377 ; R. v. Frost, Pearce & D. 474 ; 24 L. J., M. C. 
 116, S. C. 
 
 " E. 13. Barnes, 1 Law Eep., C. C. 45; 35 L. J.., M. C. 204 ; E. v. Pritohard, 
 30 L. J., M. C. 169 ; L. & Cave, 34, S. C. ; E. v. Webster, L. & Cave, 77. 
 
 w E. V. Wright, 2 Fost. & Fin. 320. 
 
CHAP. I.] DEEAD OF AMENDING INDICTMENTS EBEONBOUS. 247 
 
 promulgated by one or two of the judges with reference to the 
 prior statute, 9 G. 4, c. 15,^ are calculated to excite a reasonable 
 fear lest an equally strict construction should be applied to the 
 amendment clauses of this Act ; but, on the other hand, it cannot 
 be denied that the subject is now far better understood than it 
 formerly was, and that even judges are beginning to discover that 
 substantial justice is of more real importance than mere technical 
 precision. Wise men should ever bear in mind, that the object 
 of the Acts which authorise amendments in criminal proceedings, 
 is to render punishment more certain, by neutralising the effect of 
 trivial variances, which have constantly protected the wrong-doer. 
 So long as the least rational doubt exists respecting the guilt of a 
 prisoner, it is only fair that the ample shield of justice should 
 screen him from injury ; that juries should weigh with jealousy 
 the evidence against him ; and that judges should see most clearly 
 that the act, with which he is charged, is an offence against the 
 law. But when courts of justice go further than this, and permit 
 the law to be defeated by technical errors, which cannot by pos- 
 sibility mislead a defendant, and which have nothing to do with the 
 substantial merits of the case, they take the most effectual means of 
 rendering the administration of the criminal law a fitting subject for 
 contempt and ridicule. In civil causes, the Acts authorising amend- 
 ments receive a liberal construction, and properly so.^ Why, then, 
 should an absurdly strict construction be appUed in criminal courts ? 
 The statutes themselves warrant no such distinction, and to intro- 
 duce into the interpretation of them the old doctrine " strictissimi 
 juris," is to misunderstand and misapply the .meaning of that 
 doctrine, and to make the commandments of the Legislature of none 
 effect through your traditions. 
 
 1 R. V. Cooke, 7 C. & P. 559, per Patteson, J. ; R. v. Hewins, 9 C. & P. 786, 
 per Coleridge, J. 
 
 2 The language of Ld. Manafield in Bristow v. Wright, 2 Doug. 666, should 
 never be forgotten. " I am very free to own," said his Lordship, " that the 
 strong bias of my mind has always leaned to prevent the manifest justice of a 
 cause from being defeated or delayed by formal slips, which arise from the 
 inadvertence of gentlemen of the profession ; because it is extremely hard on the 
 pa/rty to be turned round, and put to expense, from such mistakes of the counsel or 
 attorney he employs. It is hard, also, on the profession," 
 
248 VARIANCE — SUEPLUSA6E NEED NOT BE PROVED. [PART II. 
 
 §254. Having now drawn attention to the Acts and Rules which § 208 
 authorise amendments to be made, whether in civil or criminal pro- 
 ceedings, and having also examined the leading cases that have been 
 decided under them, it will be expedient briefly to notice some 
 general rules which regulate the law of variance ; because, 
 although a discrepancy between the allegation and the proof is 
 not, as formerly, fatal, provided that it be not material to the 
 substantial merits, yet it may still entail considerable expense on 
 the party, who is driven to apply for an amendment. It is there- 
 fore important to ascertain, upon what occasions the opposite party 
 is entitled to object, that the substance of the issue has not been 
 proved. 
 
 § 255.^ The first rule in connection with this subject is, that § 209 
 surplusage need not he proved, and the proof, if offered, should be 
 rejected. The term surplusage comprehends whatever may be 
 stricken from the record without destroying the right of action, or 
 the charge, on the one hand, or the defence on the other. This, 
 it is true, is a loose, and therefore an unsatisfactory, definition; 
 but it is difficult, not to say impossible, to find one more distinct 
 and practical. Each case must, in a great measure, depend on its 
 own particular circumstances, and the best means of ascertaining 
 what will, or will not, amount to surplusage, is by examining the 
 decisions on this subject. The case of Williamson v. Allison,^ is 
 a leading authority. That was a declaration in tort, for breach 
 of a warranty that some claret was in a fit state to be exported to 
 India, whereas it was at the time, and the defendant well knew 
 that it was, in a very unfit state. At the trial no evidence was 
 given of the defendant's knowledge, and the verdict being for 
 the plaintiff, a motion was made for a new trial, on the ground 
 that the scienter, having been alleged, ought to have been proved ; 
 but the court were unanimously of opinion that the allegation of 
 the scienter was wholly unnecessary and immaterial, and therefore 
 requu-ed no proof. The grounds for this decision are explained 
 with great clearness by Lord EUenborough in pronouncing his 
 
 377. 
 
 1 Gr. Ev., § 51, in part. 
 
 2 2 East, 446 ; cited by Ld. Abinger in Cornfoot v. Fowke, 6 M. &W. 
 
CHAP. I.J INSTANCES OF SURPLUSAGE. 249 
 
 judgment. "If," said his Lordship, "the whole averment re- 
 specting the defendant's knowledge of the unfitness of the wine 
 for exportation were struck out, the declaration would still be 
 sufficient to entitle the plaintiff to recover upon the breach of the 
 warranty proved. For, if one man luU another into security as 
 to the goodness of a commodity, by giving him a warranty of it, 
 it is the same thing whether or not the seller knew it at the time 
 to be unfit for sale ; the warranty is the thing which deceives the 
 buyer, who relies on it, and is thereby put off his guard. Then, 
 if the warranty be the material averment, it is sufficient to prove 
 that broken to establish the deceit." Mr. Justice Lawrence 
 added, " I take the rule to be, that if the whole of an averment 
 may be struck out without destroying the plaintifl''s right of 
 action, it is not necessary to prove it ; but otherwise, if the whole 
 cannot be struck out without getting rid of a part essential to the 
 cause of action ; for then, although the averment be more par- 
 ticular than it need have been, the whole must be proved, or the 
 plaintiff cannot recover."'^ 
 
 § 256.^ So, in tort for removing earth from the defendant's land, § 210 
 whereby the foundation of the plaintiffs house was injured, the 
 allegation of bad intent in the defendant need not be proved, for 
 the cause of action is perfect, independent of the intention.^ So, 
 in an action for impounding cattle in an unfit pound, an averment 
 that the pound was " at all times unfit, as the defendant well knew," 
 may be rejected as immaterial, and consequently it requires no proof.* 
 Again, if a declaration discloses a state of facts upon which an 
 action may be maintained, although the defendant has not been 
 guilty of maHce or fraud, the plaintiff is not bound to prove either, 
 notwithstanding both be alleged, and he may recover upon the 
 liability which the facts disclose, though both fraud and maHce be 
 
 1 2 East, 451, 452. See, also, Jackson v. Allaway, 6 M. & Gr. 942 ; 7 Scott, 
 N. R. 875, S. C. ; Att.-Gen. v. Clerc, 12 M. & W. 640 ; Tempest v. Kilner, 
 2 Com. B. 300 ; Anderson v. Thornton, 8 Ex. R. 425 ; Thorn v. Bigland, id. 
 725 ; Southall v. Rigg, and Forman v. Wright, 11 Com. B. 481. 
 
 2 Gr. Bv., § 64, as to first four lines. 
 
 3 Panton v. Holland, 17 Johns. 92 ; Twiss v. Baldwin, 9 Conn. 291. 
 ' BigneU v. Clarke, 5 H. & N. 485. 
 
250 INSTANCES OF SURPLUSAGE. [PAET II. 
 
 actually disproved.^ In case, too, against a common carrier for the 
 loss of property intrusted to him, negligence, though averred, need 
 not be proved.^ So, also, in trespass, for driving against the 
 plaintiflPs cart, an averment that he was in the cart is immaterial.* 
 In like manner, where a declaration, — after alleging that the plaintiff 
 was possessed of a pond, and the defendant was possessed of an 
 adjoining close, used as a private road, — averred that the defendant 
 wrongfully cut in his close, used as a private road, a certain large 
 sewer, and thereby diverted the water from the pond, the court held 
 that the words marked ia itahcs were clearly immaterial, and that 
 the plaintiff might recover damages, though it appeared that the 
 sewer was cut previously to the construction of the road, " What," 
 said Chief Justice Tindal, " has it to do with the wrongful act of 
 the defendant, or the measure of damages which the plaintiff is 
 entitled to claim, whether the defendant used his close as a road, an 
 orchard, or a garden ? "* 
 
 § 257. So, in an action against the Marshal for an escape,^ the § 210 
 declaration stated that a judgment was recovered in Easter Term, 
 that in Triaity Term in the same year there was an award of execu- 
 tion, and that thereupon the defendant was committed. The 
 original judgment and the commitment were proved, but no evi- 
 dence was given of any judgment in scire facias. The court held that 
 this last allegation being immaterial, because a year had not elapsed 
 from the date of the original judgment,^ no proof was necessary to 
 support it ; and they considered that the word " thereupon " was in- 
 troduced, not for the purpose of connecting the commitment with 
 the judgment in scire facias, but simply with the view of marking 
 the progress of the cause. In a similar action against the Marshal, 
 the plea stated that the debtor returned into custody before action 
 
 » Swiofen v. Ld. Cliehnsford, 6 H. & N. 890, 920, 921. 
 
 2 Rioliards v. Lond. & South Coast Ry. Co., 7 Com. B. 839. See ante, § 187. 
 
 3 Howard v. Peete, 2 Chit. R. 315. 
 
 ■• Duies V. Gostling, 1 Bing. N. C. 588, 593. 
 
 * Bromfleld v. Jones, 4 B. & C. 380. 
 
 * Semtle, the scire facias need not have been alleged or proved, even if 
 execution had not heen taken out till after the year and day had expired ; per 
 Littledale, J., id. 385. Execution may now issue within six years from the 
 recovery of the judgment, without any revival ; 15 & 16 V., c. 76, § 128. 
 
CHAP. I.] INSTANCES OF SURPLUSAGE. 251 
 
 brought, and that thereupon the defendant, before and at the 
 time of the commencement of the suit, kept and detained, and still 
 doth keep and detain, him in his custody ; to this plea, the plaintiff 
 repHed de injuria, and at the trial tendered evidence of a second 
 escape after the commencement of the action, and before plea 
 pleaded. This evidence was rejected by the learned judge, on the 
 ground that the allegation of a detainer after action brought vpas 
 immaterial to the defence, and was consequently not put in issue by 
 the replication ; and the court above supported this ruling.^ 
 
 § 258. In an action, too, by a servant against his masters for § 211 
 the breach of a contract of hiring, where the declaration charged 
 the defendants with having wrongfully and vidthout reasonable or 
 probable cause dismissed the plaintiff, and the plea alleged that 
 they did not wrongfully and without reasonable or pitobable cause 
 dismiss him, the court held that the fact of the dismissal was 
 alone put in issue.^ So, where a defendant, while traversing in 
 terms the plaintiff's declaration, had averred in his plea that he did 
 not wrongfully maintain a weir at an improper height, he was not 
 allowed to prove that such maintenance was rightful, for that would 
 have been tantamount to giving matter of confession and avoidance 
 in evidence under a simple traverse.^ So, where a girl ten years 
 old, by her prochein ami, sued a surgeon in case, and the declara- 
 tion stated that she had employed him to cure her, and then claimed 
 damages for a misfeasance, the court held that there was no material 
 variance between the allegation and the proof, though the defendant 
 had traversed the statement that the plaintiff had employed him. 
 
 > Davis V. Chapman, 2 M. & Gr. 921. See Basan v. Arnold, 6 M. & W. 559 ; 
 Palmer v. Gooden, 8 M. & "W. 890 ; 1 Dowl. N. S. 673, S. C. ; Vowles v. Miller, 
 3 Taunt. 137. 
 
 ' Powell V. Bradbury, 7 Com. B. 201. See, however, Lush v. EusseU, 1 L. M. 
 & P. 369, 374, 375 ; 5 Ek. E. 203, 209, 210, S. C, where this case is denied to 
 be law, and it is laid down that " if a traverse, instead of being in a general form, 
 puts in issue an immaterial part in express terms, that must be disposed of by 
 the jury, and, generally speakiag, according to the terms of the issue." See 
 Smith V. Lovell, 10 Com. B. 6, 23, 24 ; and Horton v. M'Murtry, 29 L. J., Ex. 
 260 ; 5 H. & N. 667, S. 0. 
 
 3 Keller v. Blood, 13 Ir. Law R., N. S. 19, per Ex. Ch., affirming S. C. 
 reported 11 Ir. Law E., N. S. 132. 
 
252 INSTANCES OF SURPLUSAGE. [PAET II. 
 
 and it appeared that he had, in reality, been sent for by the mother, 
 and paid by the father, of the child ; for either the fact of the girl 
 having allowed him to operate was evidence that she had employed 
 him, and that he had accepted the employment, or, — the substance 
 of the issue being, that he was employed to cure his patient, — it 
 was immaterial by whom he was employed, and the statement that 
 he was employed by the plaintiff might be struck out of the 
 pleadings.^ 
 
 § 259. Again, if a bill be accepted payable at a particular place, §2)2 
 without stating it to be payable there only, it is no variance, in an 
 action against the acceptor, to declare upon it as payable at that 
 place, though such an acceptance is declared by the Legislature to 
 be, for all intents and purposes, a general acceptance ; ^ for a general 
 acceptance, being an engagement to pay anywhere, must include, 
 amongst others, the particular place mentioned in the declaration ; 
 and it does not lie in the defendant's mouth to say that the bill was 
 not payable at that place, when he has himself referred the parties 
 there for payment.^ So, in an action on a promissory note, where 
 the declaration stated that the defendant made it, " his own proper 
 hand being thereunto subscribed," but it appeared that the note 
 was, in fact, drawn by his son, with his authority ; Lord Tenterden 
 held that this was no variance, as the allegation respecting the 
 defendant's handwriting might be rejected as surplusage.* So, also, 
 in an action by an indorsee against the drawer or indorser of a bill 
 for default of payment, an allegation of acceptance need not be 
 
 > GladweU v. SteggaU, 5 Bing. N. C. 733 ; 8 Scott, 60, S. 0. 
 
 2 1 & 2 G. 4, c. 78, § 1. 
 
 3 Blake v. Beaumont, 4 M. & Gr. 7, 10. It will be seen that this case 
 depends rather on the doctrine of estoppel, than on that of variance. 
 
 ^ Booth -0. Grove, M. & M. 182 ; 3 C. & P. 335, S. C. This case is probably 
 correct law, though, on one occasion, where the declaration contained similar 
 words, with respect to an indorsement which turned out to have been made by 
 procuration, Ld. EUenborough directed a nonsuit. Levy v. Wilson, 5 Esp. 179. In 
 Helmsley v. Loader, 2 Camp. 450, the same learned judge, however, under pre- 
 cisely similar circumstances, would not allow the defendant to raise the ob- 
 jection, he having promised to pay, with a knowledge of all the facts ; and his 
 lordship was inclined to think that, even independently of the promise, it was 
 enough to show that the defendant's name was written by an authorised agent. 
 Levy V. Wilson may therefore be considered as overruled. 
 
CHAP. I.] NEEDLESS AVERMENT NEEDLESS PARTICULARITY. 253 
 
 proved/ except in the ease of a bill payable after sight. So, where the 
 holder of a bill averred, as an excuse for not giving notice of dis- 
 honour to the drawer, that the latter had no funds in the acceptor's 
 hands, and had sustained no damage from want of notice, this last 
 negative averment was held to be immaterial, though the defendant 
 had pleaded that he had sustained damage, because the acceptor had 
 promised him to provide for the bill.^ 
 
 § 260. In an action on a promissory note brought by the indorsee § 212 
 against the maker, the defendant pleaded that he deHvered the note 
 to the indorser to enable him to take up a former accommodation 
 note, and that after the note declared on became due, he paid the 
 amount to the plaintiff. On a replication de injuria to this plea, 
 the court held that the averment introductory to the payment of the 
 last-mentioned note might be rejected as surplusage, and need not 
 be proved. It amounted, in fact, to a mere unnecessary statement 
 of the motive which induced the defendant to give the note. Mr. 
 Justice Coleridge observed : " The distinction is between an aver- 
 ment, the whole of which can be got rid of without injury to the 
 plea, and an averment of circumstances essential to the defence, 
 which are stated with needless particularity. In the latter case the 
 whole averment must be proved as pleaded. In the former case, in 
 civil or criminal proceedings, the whole may be considered as struck 
 out, and therefore need not be proved."^ 
 
 § 261. The distinction here pointed out may be well illustrated § 213 
 by the case of Bristow v. Wright.* That was an action on the case 
 against a sheriff, for taking the tenant's goods in execution without 
 satisfying the landlord for a year's rent ; and the plaintiff averred 
 that the rent was reserved quarterly, whereas it turned out to be 
 
 1 Tanner v. Bean, 4 B. & C. 312 ; 6 D. & R. 338, S. C. ; overruling Jones 
 V. Morgan, 2 Camp. 474. 
 
 2 Fitzgerald v. Williams, 6 Bing. N. C. 68. 
 
 3 Shearm v. Bumard, 10 A. & E. 593, 596 ; 2 P. & D. 565, S. C. See, also, 
 Noden v. Johnson, 16 Q. B. 218, 226, 227, per Patteson, J. 
 
 ■• 2 Doug. 665 ; 1 Smith, L. C. 570, S. C. ; explained and confirmed by 
 BuUer, J., in Peppin v. Solomons, 5 T. E. 497, 498 ; and by Ld. Ellenborough 
 in Williamson v. Allison, 2 East, 450. See, also. Savage v. Smith, 2 W. Bl. 
 1101 ; Hoar v. MiU, 4 M. & Sel. 470. 
 
254 NEEDLESS AVBBMENT NEEDLESS PAETICULAKITY. [PAET II. 
 
 reserved yearly. There, had the whole averment as to the reserva- 
 tion of the rent been struck out, the plaintiff could not have main- 
 tained his action, because some rent must necessarily have been 
 averred to be due ; and therefore, though the plaintiff need not 
 have stated in what manner the rent was reserved, yet, as he had 
 chosen to do so, the defendant was held entitled to avail himself of 
 the defect of proof in that particular. So, if in justifying the 
 taking of cattle damage feasant, in which case it is sufficient to 
 allege that they were doing damage in the defendant's freehold, he 
 should needlessly state a seisin in fee, which is traversed, the precise 
 estate which he has set forth becomes an essentially descriptive 
 allegation, and must be proved as alleged.^ 
 
 § 262. Upon the same ground it was held, prior to the Act of § 213 
 14 & 15 v., e. 100, that if a person were indicted for steahng a live 
 fowl, he could not be convicted upon evidence shovdng that he had 
 stolen a dead one ; ^ and an allegation of the colour of an animal, 
 though wholly unnecessary, was, as a matter of description, obliged 
 to be proved as laid.^ So, where an indictment for bigamy described 
 the second wife as a widow, when in fact she had never been mar- 
 ried, the misdescription was held fatal, though it was unnecessary 
 to have stated more than her name ; * and where a crime, alleged to 
 have taken place " at A., in the county of B., within five hundred 
 yards of the boundary of D., to wit at C, in the county of D.," 
 was proved to have been committed in D., the prisoner was acquitted, 
 Mr. Justice Crampton observing, " If you choose to go out of your 
 way to make a special averment, and to allege a particular place in 
 
 ' Leke's case. Dyer, 365 ; Turner v. Eyles, 3 B. & P. 456 ; E. v. Dendy, 1 
 E. & B. 835, per Crompton, J. 
 
 2 E. V. Edwards, E. & E. 497. Hoboyd, J., there observed, that an indict- 
 ment for stealing a dead animal should state that it was dead ; for upon a 
 general statement that a party stole an animal, the law will intend that he 
 stole it alive. ^ 1 St. Ev. 434. 
 
 * E. V. Deeley, 1 Moo. 0. C. 303 ; but see E. v. Ogilvie, 2 C. & P. 230, where 
 the prosecutor heing described as A. B., Esquire, the addition was rejected as 
 surplusage by Burrough, J. So, in E. v. Graham, 2 Lea. 547, where the goods 
 stolen were alleged to be the property of J. H., Esq., commonly called Ea/rl of C. 
 in the Kingdom of Ireland, it was held that the words marked in italics might 
 be rejected as surplusage. 
 
CHAP. I.] STJEPLTJSAGE IN CRIMINAL PROCEEDINGS. 255 
 
 the indictment, the question is, whether you are bound to prove it. 
 I think you are."^ In these cases, the essential and non-essential 
 parts of the statement were so connected and dovetailed, as to be 
 incapable of separation, and therefore both were considered as alike 
 material. 
 
 § 263. The language of Mr. Justice Coleridge, cited above,^ is § 214 
 also important, as showing that the law, which rejects surplusage, 
 applies equally in criminal as in civil proceedings. Thus, if a 
 party be indicted for robbery in the dwelling house of A. B? or for 
 arson in the night time,^ the allegations marked in itaUcs may be 
 rejected as surplusage, and, consequently, need not be proved.^ The 
 case of E. v. Jones will illustrate this subject.^ The repealed Act 
 of -9 G. 4, c. 41, provided,'' in § 29, that no person, not a parish 
 patient, should be taken into a lunatic asylum without a certificate 
 of two medical men, containing certain particulars. § 30 enacted, 
 that any person who should knowingly, and with intention to deceive, 
 sign such certificate, untruly setting forth such particulars, should 
 be guilty of a misdemeanor ; while a second clause made it a sub- 
 stantive offence for any physician, surgeon, or apothecary to sign 
 such certificate, without having visited the patient. The indictment 
 stated that the defendant, being a surgeon, knowingly, and with 
 intention to deceive, "signed the certificate without having visited 
 the patient, thus blending in one charge two distinct offences. The 
 jury negatived any intent to deceive, but found the defendant 
 guilty ; and the court held that the conviction was right, since the 
 averment of intention was mere surplusage. 
 
 1 R. V. M'Kenna, Ir. Cir. R. 416 ; see, also, R. v. Durore, 1 Lea. 351 ; 1 East, 
 P. 0. 45, S. 0. ; and E. ii. Upton-on-Severn, 6 C. & P. 133. 
 
 2 See ante, end of § 260. 
 
 2 R. V. Pye, 2 East, P. C. 786 ; E. v. Jolinstone, id. hj all the judges ; see, 
 also, E. V. Wardle, E. & R. 9. ■> R. v. Minton, 2 East, P. C. 1021. 
 
 * For other instances, see R. v. PMlUps, R. & R. 369 ; R. v. Oxford, id. 
 382 ; R. I). Summers, 2 East, P. C. 785 ; R. v. Hickman, id. 593 ; 1 Lea. 318, 
 S. C. ; R. V. Eadley, 1 Den. 450 ; E. v. Otway, 1 Ir. Law E., N. S. 69 ; E. ■;;. 
 Williams, 2 Den. 61 ; E. v. Kealey, id. 68 ; E. v. Healey, 1 Moo. C. C. 1 ; 2 
 Russ. C. & M. 786—789. « 2 B. & Ad. 611. 
 
 ' This Act was repealed by 2 & 3 W. 4, c. 107, which, in its turn, was 
 repealed hy 8 & 9 V., c. 100, which was amended, and partially repealed, by 
 16 & 17 v., c. 96, the Act now in force. 
 
256 CUMULATIVE ALLEGATIONS IMMATERIAL. [PAET II. 
 
 § 264. So, where an indictment charged the defendants with § 214 
 conspiring to indict the prosecutor falsely, with intent to extort 
 money, they were held to he rightly convicted, though the jury, in 
 finding them guilty of conspiring to indict with the intent alleged, 
 expressly negatived any conspiracy to make a false charge ; for the 
 court observed that a conspiracy to prefer an indictment for pur- 
 poses of extortion was doubtless a misdemeanor, whether the 
 charge were true or false.-' So, where a parish was indicted for 
 non-repair of a highway, an allegation that the road in question was 
 an immemorial highway has been rejected as surplusage.^ Upon 
 an indictment, too, for jointly receiving stolen property, persons 
 guilty of separately receiving any part of such property may be 
 convicted.^ If a common law offence be laid as committed " against 
 the form of the statute," the allegation may be rejected as sur- 
 plusage.* 
 
 § 265. A second rule respecting variances is, that cumulative § 215 
 allegations, or such as merely operate in aggravation, are immaterial, 
 provided that sufficient is proved to estabUsh some right, offence, 
 or justification, included in the claim, charge, or defence, specified 
 on the record.' This rule, as applicable to criminal proceedings, 
 was adopted and defined by Lord EUenborough in the case of R. v. 
 Hunt.* There the defendant was charged in an information with 
 composing, printing, and publishing a libel, but no evidence was 
 given to show that he was the author. His counsel thereupon 
 claimed an acquittal on his behalf, but the learned judge observed, 
 " It is enough to prove pubUcation.''' If an indictment charges that 
 the defendant did and caused to he done^ a particular act, it is 
 
 ' R. V. HoLJixglierry, 4 B. & C. 329. 2 jj ^ Turwestoa, 16 Q. B. 109. 
 
 3 24 & 25 v., c. 96, § 94, enacts, that, " if upon the trial of any two or more 
 persons indicted for jointly receiving any property, it shaU be proved that 
 one or more of such persons separately received any part or parts of such 
 property, it shall be lawful for the jury to convict upon such indictment such of 
 the said persons as shall be proved to have received any part or parts of such 
 property." 
 
 * E. 0. Mathews, 5 T. E. 162. See, also, 14 & 15 V., c. 100, § 24, cited post, 
 § 280, n. 3. 6 E. v. Macpherson, 39 L. J., P. C. 59 ; 11 Cox, 604, S. C. 
 
 " 2 Camp. 583. 
 
 ^ S. P. in E. v. "Williams, 2 Camp. 646, per Lawrence, J. 
 
 " S. P. per Ld. MansEeld, in E. v. Middlehurst, 1 Burr. 400. 
 
CHAP. I.] CUMULATIVE ALLEGATIONS IMMATEBIAL. 257 
 
 enough to prove either. The distinction runs through the whole 
 criminal law ; and it is invariably enough to prove so nauch of the 
 indictment as shows that the defendant has committed a substantive 
 crime therein specified." 
 
 § 266. Thus, on an indictment for murder the prisoner may be § 216 
 convicted of manslaughter, for the averment of malice aforethought 
 is merely matter of aggravation.^ So, on an indictment for burglary 
 and stealing, if the prosecutor establish his case with the exception 
 of proving that the breaking was by night, the prisoner may be 
 convicted of housebreaking;^ if no breaking be proved, but the 
 property stolen be laid in the indictment, and be proved by the 
 evidence to be of the value of five pounds, the verdict may be 
 guilty of stealing in a dwelling-house to that amount ; ^ if no satis- 
 factory evidence be offered to show, either that the house was a 
 dwelling-house, or some building communicating therewith ; or that 
 it was the dwelling-house of the party named in the indictment ; 
 or that it was locally situated as therein alleged ; or that the stolen 
 property was of the value of five pounds ; still, the prisoner may be 
 convicted of simple larceny, provided it appear that any goods were 
 stolen by him.* So, on a charge of steahng in a dwelling-house 
 with menaces,^ or of stealing from the person, with or without 
 violence,^ or of stealing as a servant,' the prisoner may be found 
 guilty of larceny, if the evidence be not sufficient to prove the 
 commission of the more aggravated crime ; ^ and an indictment 
 under the statute for horse-stealing, though bad for not describing 
 the animal by any term used in the Act, will support a conviction 
 for larceny.® Again, on the same principle, if an indictment for 
 treason or conspiracy charge several overt acts, it is sufficient to 
 prove one ; ^^ and, on an indictment for obtaining property by several 
 false pretences, it is not necessary to prove them all, unless they 
 
 1 Co. Lit. 282 a. ^ Under 24 & 25 V., c. 96, § 56. 
 
 = Under 24 & 25 V., c. 96, § 60 ; see R. ■;;. Compton, 3 C. & P. 418, per 
 Gaselee, J. 
 
 ^ K. V. Bullock, 1 Moo. C. 0. 423, n.a; E. ■;;. Brookes, C. & Marsh. 543, per 
 Patteson, J. ; K. i). Jackson, cited 2 Euss. C. & M. 801, per Cresswell, J. 
 
 » See 24 & 25 V., c. 96, § 61. « See 24 & 25 V., c. 96, §§ 40, 43. 
 
 E. V. Jennings, Dears. & Bell, 447 ; 24 & 25 V., c. 96, § 67. 
 
 8 2 Hale;302 ; 2 East, P. C. 784. '' E, v. Beaney, E. & E. 416. " Post. 194, 
 
258 CUMULATIVE ALLEGATIONS — SEVERAL INTENTS. [PART IX. 
 
 are so connected as to be incapable of separation,^ but it will suffice to 
 prove the one or more, by which the property was in fact obtained." 
 
 § 267. In like manner, if a compound intent, or several intents, § 217 
 be laid in the indictment, and if one part of the compound intent, 
 or each of the several intents, when coupled with the act done, 
 constitute an offence, it will not be necessary to prove the whole 
 as laid. Thus, an indictment for killing a sheep, with intent to 
 steal the whole carcase, wiU be supported by proof of an intent to 
 steal part of the carcase.^ So if a prisoner be charged with obtaining 
 an order for a certain sum from the prosecutor with intent to 
 defraud him of the same, he may be legally convicted, though it 
 appears that his real intention was to cheat the prosecutor out of a 
 small portion only of the proceeds of the order.* So, a man accused 
 under the old law of assaulting a girl with intent to abuse her and 
 carnally know her, has been found guilty of an assault with intent 
 to abuse simply ; ^ and a party indicted for publishing a Ubel with 
 intent to defame certain magistrates, and also to bring the adminis- 
 tration of justice into contempt, may be found guilty, if the libel 
 was published with either of those intents." 
 
 § 268. But the intent proved must either correspond with, or be § 217 
 included in, the intent alleged. Thus it will be a fatal variance, if 
 an indictment for burglary charge an intent to steal, and it be 
 shown that the real intent was to commit rape or murder ; '' and a 
 prisoner charged with burglary and stealing will be acquitted, if no 
 
 1 R. V. Wictham, 10 A. & E. 34. 2 R. v. Hill, R. & E. 190. 
 
 ' R. V. WiUiams, 1 Moo. C. C. 107. That case was decided on the Act of 14 
 G. 2, c. 6 (now repealed), which speaks, in the alternative, of an intent to steal 
 the whole carcase or any part of the carcase. The same point seems, however, 
 to have been ruled by Cresswell, J., in R. v. Marley, cited 2 Russ. C. & M. 137, 
 which case must have turned on the language of 7 & 8 G. 4, e. 29, § 25. This 
 last Act uses the words " with intent to steal the carcase or skin, or any'paxt 
 of the cattle so killed," &c. The principle in both cases was the same, namely, 
 " that the offence of intending to steal a part was part of the offence of intending 
 to steal the whole, and that the statute meant to make it immaterial whether 
 the intent applied to the whole, or only to part." Per Cur. 1 Moo. C. C. 111. 
 
 * E. V. Leonard, 1 Den. 304. 
 
 ^ R. V. Dawson, 3 Stark. R. 62, per Hoboyd, J. See 24 & 25 V., c. 100, § 52. 
 
 ' 11. V. Evans, 3 Stark. E. 35, per Bayley, J. ? 2 East, P. C. 514. 
 
CHAP. I.] HOW FAR INTENT MUST BE PBOVED AS LAID. 259 
 
 property was taken, though it appear that the house was entered 
 with an intent to steal ; and though, had larceny actually been 
 committed, he would have been convicted without any allegation in 
 the indictment of a felonious intent.^ 
 
 § 269. The rule under discussion has been adopted by the Legis- § 218 
 lature on several occasions. Thus, if a woman be charged with the 
 murder of her infant, she may be convicted of endeavouring to 
 conceal its birth ; ^ if a person be indicted for felony in administering 
 poison so as to endanger life, or to inflict grievous bodily harm, he 
 may be convicted of the misdemeanor of administering poison with 
 intent to injure, aggrieve, or annoy some one; ^ and on the trial of 
 an indictment for simple or aggravated robbery, the jury may 
 convict of a simple or aggravated assault with intent to rob, if the 
 evidence shall prove such an offence to have been committed.* So, 
 upon a count for maliciously wounding, or for maliciously inflicting 
 grievous bodily harm, against the statute, a prisoner may be con- 
 victed of a common assault, even though the term " assault " be 
 not found in the indictment.^ Formerly, the Act of 7 W. 4 & 1 V., 
 c. 85, § 11, provided, that if a party were indjcted for any of the 
 ofllences thereinbefore mentioned, or for any felony, where the crime 
 charged included an assault against the person, the jury, though 
 they acquitted him of the felony, might have found him guilty of 
 the assault, if the evidence tvarj'anted such finding. Great diffi- 
 culties, however, having arisen in the construction of this enact- 
 ment,^ it was repealed in 1851,''' and a clause was substituted in its 
 place,* which provides that, " if, on the trial of any person charged 
 
 1 K. V. Furnival, E. & R. 445 ; R. v. Vanderoomb, 2 East, P. C. 514. 
 
 2 24 & 25 v., c. 100, § 60. ' 24 & 25 V., c. 100, § 25. 
 
 ■< 24 & 25 v., c. 96, § 41 ; R. v. Mitchell, 2 Den. 468 ; 3 C. & Kir. 181, S. C. 
 See R. ■ii. Woodhall, 12 Cox, 240, per Denman, J. 
 
 5 R. V. Taylor, 1 Law Rep., C. C. 194 ; 38 L. J., M. C. 106 ; and 11 Cox, 261, 
 S. 0. ; E. V. Canwell, 11 Cox, 263 ; R. v. OUver, 1 BeU, C. C. 287 ; 8 Cox, 384, 
 S. C. ; E. V. Yeadon, 1 L. & Cave, 81 ; 9 Cox, 91, S. C. See, also, R. v. Guthrie, 
 11 Cox, 522 ; 1 Law Rep., C. C. 241 ; 39 L. J., M. C. 95, S. C. 
 
 5 R. 1). Bird, 2 Den. 94. 
 
 7 14 & 15 v., c. 100, § 10. The enactment in question appears to have 
 been especially obnoxious to the Legislature, for, since 1851, it has been twice 
 more repealed. See 24 & 25 Y., c. 95, Sch. ; and 24 & 25 V., c. 101, Sch. 
 
 8 14 & 15 v., c. 100, § 9. See E. v. M'Pherson, 26 L. J., M. C. 134. 
 
 s % 
 
260 CONVICTION OP LESS OFFENCE THAN THAT CHARGED. [PART II. 
 
 with any felony or misdemeanor/ it shall appear to the jury upon 
 the evidence that the defendant did not complete the offence 
 charged, but that he was guilty only of an attempt to commit the 
 same, such person shall not by reason thereof be entitled to be 
 acquitted, but the jury shall be at liberty to return as their verdict, 
 that the defendant is not guilty of the felony or misdemeanor 
 charged, but is guilty of an attempt to commit the same, and there- 
 upon such person shall be liable to be punished in the same manner, 
 as if he had been convicted upon an indictment for attempting to 
 commit the particular felony or misdemeanor charged in the said 
 indictment ; and no person, so tried as herein lastly mentioned, shall 
 be liable to be afterwards prosecuted for an attempt to commit the 
 felony or misdemeanor for which he was so tried." 
 
 § 270. In the Articles of War estabUshed for the government of § 218a 
 the Navy, the rule, as illustrated in the three preceding sections, is 
 fally recognised. For instance, " the Naval Discipline Act, 1866," ^ 
 expressly enacts, in § 48, that " where any prisoner shall be charged 
 with murder, a court-martial may find him guilty of manslaughter 
 or of a common assault ; where he shall be charged with sodomy, a 
 court-martial may find him guilty of an indecent assault ; where he 
 shall be charged with theft, a court-martial may find him guilty of 
 an attempt to thieve, or of embezzlement, or of wrongful appro- 
 priation of property belonging to another; and generally, where 
 any prisoner shall be charged with any offence under this Act, he 
 may, upon failure of proof of the commission of the greater offence, 
 be found guilty of another offence of the same class involving a 
 less degree of punishment, but not of any offence involving a 
 greater degree of punishment." 
 
 § 271. In civil actions the same rule prevails. Thus, in an action § 219 
 for defamation, if the plaintiff allege special damage, he need not 
 prove it, provided the words be actionable per se.^ So, in an action 
 on a policy of insurance, the material allegation is the loss ; but 
 whether total or partial, is a mere question of degree ; and if the 
 
 ' See E. V. Kyland, 11 Cox, 101 ; E. v. Hapgood & Wyatt, id. 471. 
 
 = 29 & 30 v., c. 109. 
 
 3 Smith V. Thomas, 2 Bing. N. C. 380, per Tindal, 0. J. 
 
CHAP. I.] POWER OF FINDING ISSUES DISTRIBUTIVELY. 261 
 
 ormer be alleged, proof of the latter is sufficient.^ It seems 
 scarcely necessary to add, that a party may claim in his statement 
 of complaint a less right than he is able to proye, provided that 
 the lesser right claimed does not differ in kind from, but is included 
 in, the greater right proved.^ 
 
 § 272. The power of finding issues distrihutively is highly § 220 
 valuable, as it not only diminishes the danger of variance, but it 
 is instrumental in effecting a fair distribution of the costs of the 
 cause. It has, therefore, of late years been much extended by the 
 Legislature, which has enacted, in § 75 of " The Common Law 
 Procedure Act, 1852,"^ that "pleas of payment and set-off, and all 
 other pleadings capable of being construed distributively, shall be 
 taken distributively ; and if issue is taken thereon, and so much 
 thereof as shall be sufficient answer to part of the causes of action 
 proved shall be found true by the jury, a verdict shall pass for the 
 defendant in respect of so much of the causes of action as shall be 
 answered, and for the plaintiff in respect of so much of the causes 
 of action as shall not be so answered." 
 
 § 278. This direction to distribute " all pleadings capable of § 221 
 being construed distributively " is extremely vague, and the mode 
 in which it has hitherto been interpreted by the judges is not 
 remarkable for precision. Thus much, however, would seem to 
 have been decided: — first, that the enactment is inapplicable to 
 pleadings terminating in demurrers, and has exclusive reference to 
 the findings of the jury upon issues joined ; * — next, that it does 
 not justify defendants in taking declarations distributively, but it 
 only relates to pleas and subsequent pleadings ; ^ — and thirdly, that 
 it merely contemplates affirmative pleadings in answer to an action, 
 and does not extend to pleadings in denial of the cause of action.^ 
 The object of the statute was to remedy the injustice which was 
 
 1 Gardner v. Croasdale, 2 Burr. 904 ; Benson v. Chapman, 2 H. of L. Cas. 
 696, 722 ; 8 Com. B. 950, 965, S. C. ; King v. Walker, 2 H. & C. 384. 
 
 2 Duncan v. Loucli, 6 Q. B. 904, 914 ; Bailey v. Appleyard, 8 A. & E. 167, 
 per Coleridge, J. ' 15 & 16 V., c. 76. 
 
 " Gatriel v. Dresser, 16 Com. B. 627, per Jervis, C. J. 
 
 ' Traherne v. Gardner, 26 L. J., Q. B. 259, 262 ; 8 E. & B. 170, 178, S. C. 
 
 s Id. ; Wilkinson v. Kirby, 15 Com. B. 430, 440, 444. 
 
262 INSTANCES OF DISTRIBUTIVE ISSUES. [PAET II. 
 
 frequently caused by a too strict observance of the old technical 
 rules of pleading, and it was principally intended to meet those 
 cases,^ where a defendant, who had pleaded payment or set-off,, and 
 had actually proved his plea, was nevertheless subjected to the 
 entire costs of an adverse verdict, because the plea had failed to 
 cover the whole claim in the^declaration.^ 
 
 § 274. Still, little doubt can be entertained that the enactment § 221 
 in question will be held apphcable to all cases in which, prior to 
 the passing of the Act, distributive findings on affirmative pleadings 
 were allowed, either by virtue of special rules, or by the general 
 practice of the courts. Whenever, therefore, to an action of trespass 
 the defendant pleads, either a right of way with carriages and cattle 
 and on foot, or a right of common of pasture for different Idnds of 
 cattle, or any other similar right, the plea may be construed dis- 
 tributively, because by the general rules promulgated in 1834,^ and 
 now repealed, that course might have been pursued. In all these 
 cases, however, it formerly was, and probably it still would be, con- 
 sidered material, that the right proved, though less extensive than 
 that alleged, should be of the same nature vnth it, and included in 
 it ; for otherwise the opposite party might justly complain that he 
 was taken by surprise. Proof, therefore, of a Umited right of 
 carting timber from a close would probably not be deemed to 
 support a plea claiming a general right of way on foot, and with 
 horses, cattle, carts, and carriages, for the convenient occupation of 
 the close ; * neither would a plea prescribing for an easement be 
 sustained either wholly or in part by evidence of title to a profit 
 <^ prendre.^ 
 
 § 275. Although the Legislature has not thought fit to make any § 222 
 special provision with respect to the divisibility of issues denying 
 
 1 Tuck V. Tuck, 5 M. & W. 109 ; Cousins v. Paddon, 2 C. M. & R. 547. 
 
 ' Traherne v. Gardner, 26 L. J., Q. B. 263 ; Eeynolds v. Harris, 28 L. J., 
 C. P. 31, per Cooktum, 0. J. 
 
 3 Eeg. Gen., H. T., 4 "W. 4, 5 B. & Ad. X. ; repealed by Eeg. PI., H. T. 16 V., 
 1 E. & B., App. Ixxvii. ; Knight v. Moore, 3 Bing. N. C. 3, 534 ; 5 Dowl. 201 ; 
 3 Scott, 326, S. G. 
 
 * Higham v. Kabett, 5 Bing. N. C. 622 ; 7 Scott, 827 ; 7 Dowl. 653, S. C. 
 
 s Bailey v. Appleyard, 8 A. & E. 161, 
 
Chap, i.] instances op distributive issues. 263 
 
 the allegations in the statement of claim, a wholesome practice has 
 grown up in the courts at Westminster, which permits defendants 
 in many cases to claim the right of having such issues entered dis- 
 tributively. Thus, — to borrow the language of a judgment in the 
 Queen's Bench, — " issues taken on pleas in denial of the whole 
 count have been held distributable, — in actions of trespass and of 
 trover 1 for distinct specified chattels, — ia trespass to realty, — m 
 ejectment, — in case for libel, where the libellous matter has been 
 capable of separation, — and in debt for work and labour."^ To 
 illustrate this matter more in detail it may be observed that, where 
 an action on the case was brought for disturbance of a ferry, which 
 was alleged in the declaration to be one to and from A. from and to 
 B., and the defendant pleaded not possessed, and a traverse of the 
 right of ferry as claimed, the court held, on the jury finding a ferry 
 from A. to B. only, that the verdict might be entered distributively 
 for the plaintiff, for so much as was proved at the trial.^ So, when 
 a plaintiff declared in trespass quare clausum fregit, and, by her 
 replication, on which the parties went to issue, made title to the 
 three closes mentioned in her declaration, but at the trial gave 
 evidence as to two only ; the court held that the issue was divisible, 
 and that the plaintiff was entitled to a verdict as to the two closes, 
 and the defendants as to the other.* In an action of trespass for 
 breaking and entering the plaintiff's house, and taking and con- 
 verting his goods, which were described by distinct parcels, issue 
 was joined on a plea, which denied that the house or goods were the 
 plaintiff's ; at the trial it appeared that the plaintiff was entitled to 
 the house and one parcel of the goods only, and the court held that 
 the issue was divisible, and that the verdict must be entered dis- 
 tributively.^ So, in ejectment, where the lessor of the plaintiff 
 sought to recover, under one count and one demise, several 
 
 1 Freshney v. Wells, 26 L. J., Ex. 228. 
 
 2 Traheme v. Gardner, 26 L. J., Q. B. 263 ; 8 E. & B. 179, S. C. 
 
 8 Giles V. Groves, 6 Dowl. & L. 146 ; 12 Q. B. 721, S. C. See, also, Eocli- 
 dale Canal Co. v. KadcMe, 18 Q. B. 287. 
 
 * PhytMan v. White, 1 M. & W. 216. See Cox v. Thomason, 2 C. & J. 498 ; 
 Sharland v. Loaring, 1 Ex. K. 375. 
 
 5 Koutledge v. Abbott, 8 A. & E. 582 ; Prudhomme v. Eraser, 4 N. & M. 
 512. 
 
26i INSTANCES OP DISTEIBUTIVE ISSUES. [PART II. 
 
 messuages, — some freehold, some copyhold, — and succeeded as to 
 the latter, hut failed as to the former, the court held that, since the 
 plea of not guilty raised a distinct issue as to each messuage, the 
 defendant was entitled to his verdict and costs with respect to those 
 on which the plaintiff had failed.^ 
 
 § 276. The law respecting the divisibility of issues was much § 222a 
 discussed in the case of Eeynolds v. Harris.^ That was an action 
 of slander, the declaration containing four counts. On two of these 
 the plaintiff succeeded, which entitled him to the general costs of 
 the cause. To one count, however, the defendant had pleaded a 
 plea of justification, comprising three distinct defences. One of 
 these defences he sustained, but he failed in making out the other 
 two. The question was, how to apportion the costs of this plea; and 
 the Court of Common Pleas, — after grave consideration, — decided, 
 first, that, with respect to the evidence solely applicable to those 
 portions of the plea Avhich were found to be untrue, each party 
 should pay his own costs, and next, that the defendant was entitled 
 to the costs of so much of the plea as was found in his favour, in- 
 cluding the costs of witnesses called to establish that defence, 
 although they might also have testified in support of the residue of 
 the plea. 
 
 § 277. On a review of the more recent authorities relating to the § 223 
 subject of distributive issues, it seems questionable whether such 
 decisions as were pronounced in Anderson v. Chapman,^ and Dehsser 
 V. Towne,' could be now sustained. In the first of these cases an 
 action was brought for negHgence in stowing, and otherwise taking 
 
 ' Doe V. Emngton, 4 Dowl. 602 ; Doe v. Lewis, 13 M. & W. 241 ; Alcock 
 V. Wilshaw, 2 E. & E. 633 ; 15 & 16 V., c. 76, § 180, and Sell. A. Fomi, 17. 
 See, also, Anderson v. Cliapman, 5 M. & W. 490 ; Traherne v. Gardner, 26 L. J., 
 Q. B. 2.59 ; 8 E. & B. 161, S. C. ; Knight v. Brown, 1 Dowl. 730 ; Patereon v. 
 Harris, 31 L. J., Q. B; 277 ; 2 B. & S. 814, S. C. 
 
 = 28 L. J., C. P. 26 ; 3 Com. B., N. S. 267, S. C. 
 
 ' 5 M. & W. 483. See, also, Biddiilph v. Chamberlayne, 17 Q. B. 351 ; 
 questioned, if not overruled, in Reynolds v. Harris, 28 L. J., C. P. 26 ; 3 Com. 
 B., N. S. 267, S. C. 
 
 ■> 1 Q. B, 333. 
 
CHAP. I.] INSTANCES OP DISTRIBUTIVE ISSUES. 265 
 
 care of and conveying, one hundred casks of tallow ; the defendants 
 denied negligence " in and about the stowage, or otherwise taldng 
 care of and conveying " the goods. The plaintiff having obtained 
 a verdict for injury by negligence in the care taken of a single cask, 
 but not for any injury to the cargo by stowage, it was held that the 
 defendants were not entitled to the costs of any part of the issue. 
 The court considered that, as proof of any portion of the complaint 
 would sustain the action, the failure as to the rest affected only the 
 amount of damages. So, in Delisser v. Towne,^ the declaration in 
 case stated, that the defendant, without probable cause, had pre- 
 ferred an indictment against the plaintiff for perjury, alleged to have 
 been committed by him as a witness in a cause at Nisi Prius. The 
 indictment, which was set out in the declaration, contained ten 
 assignments of perjury. The defendant pleaded 'not guilty.' Evi- 
 dence was given of want of probable cause on the last assignment, 
 but on no other, and the plaintiff had a verdict. Upon these facts 
 the court held that the defendant was not entitled to his costs with 
 respect to the nine assignments, as to which the plaintiff had failed 
 to establish a want of probable cause. 
 
 ' 1 Q. B. 333. In pronouncing judgment, Ld. Denman observed : " Thougli 
 tlie indictment contained assignments of perjury upon several parts of the 
 plaintiff's examination iipon the trial, yet it was but one charge : and the pre- 
 ferring that charge without probahle cause constitutes hut one cause of action. 
 The plea of 'not guilty' denies that one cause of action, and amounts to an 
 assertion that the defendant had probable cause for the whole of the indictment. 
 That is one entire issiie : and, if there was no probable cause for any part of 
 the charge, the plaintiff was entitled to a verdict. Whether there was or was 
 not probable cause for other parts of the charge, would affect the damages, but 
 could not affect the verdict, or show that the defendant had properly preferred 
 the indictment, that is, with probable cause for every part of it." p. 343. On 
 the subject of distributive issues, see also Gabriel o. Dresser, 15 Com. B. 622 ; 
 Chappell V. Davidson, 18 Com. B. 194 ; Blagrave v. Bristol Waterw. Co., 1 
 H. & N. 369 ; Williams v. Gt. West. Rail. Co., 8 M. & W. 856 ; 1 Dowl. N. S. 
 16, S. C. ; Amor v. Cuthbert, 1 Dowl. N. S. 160 ; Prudhomme v. Eraser, 2 A. 
 & E. 645 ; doubted by Ld. Abinger and Parke, B., in 5 M. & W. 489, 490, but 
 quoted as sound law by Ld. Denman in 1 Q. B. 344 ; Nicholson v. Dyson, 11 
 M. & W. 545 ; Daniel v. Barry, 4 Q. B. 59. See, also, Ellis v. Abrahams, 8 Q. B. 
 709, where it was held that, in such an action as Delisser v. Towne, the 
 defendant could not, even in mitigation of damages, show that there was 
 reasonable and probable cause for the charges contained in the other assign- 
 ments. Sed c[u. as the law now stands. 
 
266 FORMAL ALLEGATIONS NEED NOT BE PROVED. [PART II. 
 
 § 278. The law recognises a third rule in regard to variances, § 224 
 to the effect that meve formal allegations need not be proved. The 
 term " formal allegations " comprises, — among other matters, — all 
 those averments oi place, time, number, value, quality, and the like, 
 which are inserted in the pleadings, without being either essentially 
 descriptive of the subject of the claim or charge, or otherwise ren- 
 dered material by special circumstances. It includes also a mul- 
 titude of other idle statements, which, until recently, English 
 lawyers, with tautological pedantry, loved to introduce into every 
 record of legal proceedings. While judges were content to bestow 
 more attention on technical precision than on substantial justice, 
 the rule in question was highly important; but since the late 
 amendments in the law, it has fortunately become a matter more of 
 historical curiosity than of present practical interest. 
 
 § 279. So far, indeed, as civil actions are concerned, the rule has § 225 
 virtually passed into a dead letter ; for the Common Law Procedure 
 Act of 1852^ has expressly enacted " with respect to the language 
 and form of pleadings," that "all statements which 7ieed not be proved, 
 such as the statement of time, quantity, quality, and value, where 
 these are immaterial,^ — * * the statement of acts of trespass having 
 been committed with force and arms, and against the peace of our 
 Lady the Queen, — the statement of promises which need not be 
 proved, — * * and all statements of a like land, sliall be omitted." 
 As the rule, therefore, can only take effect in those few cases in which 
 the above directions have not been obeyed, it is deemed unnecessary 
 to discuss the matter further in the present work. 
 
 § 280. Lord Campbell's Act of 1851 for improving the adminis- § 226 
 tration of criminal justice, contains also some valuable provisions, — 
 not indeed directing the omission of " averments of any matter un- 
 necessary to be proved," but dispensing with their insertion in any 
 indictment or information." The rule, therefore, under discussion 
 
 1 15 & 16 v., ^. V6, § 49. 
 
 = See Arnold v. Arnold, 3 Biiig. N. C. 81. 
 
 3 14 & 15 v., c. 100, § 23, enacts, that "it shall not be necessary to state any 
 venue in the body of any indictment, but the county, city or other jurisdic- 
 tion named in the margin thereof shall be taken to be the venue for all the 
 
CHAP. I.] AVERMENTS OF PLACE — TRANSITORY OFFENCES. 267 
 
 is now, — in comparison with what it formerly was, — of little import- 
 ance even in criminal proceedings, and a few examples wiU suf&ce to 
 illustrate its operation. And first, as to averments of place. It is 
 now sufficient in all cases, excepting ivhere local description is re- 
 quired, to state in the margin of the indictment ■ the county, city 
 or other jurisdiction, as the venue for all the facts averred ia the 
 hody of the indictment.^ Even before this salutary alteration was 
 introduced into the lav/, it was held to be no objection in the case 
 of a transitory felony, that there was no such parish in the county, 
 as that in which the offence was stated to have been committed.^ 
 
 facts stated in the body of such indictment ; provided that in cases where local 
 description is or hereafter shall be required, such local description shall be 
 given in the body of the indictment ; and provided also, that where an indict- 
 ment for an offence committed in the county of any city or town corporate 
 shall be preferred at the assizes of the adjoining coiinty, such county of the city 
 or town shall be deemed the venue, and may either be stated in the margin of 
 the indictment, with or without the name of the county in which the offender 
 is to be tried, or be stated in. the body of the indictment by way of vemie." 
 § 24 enacts, that " no indictment for any offence shaU be held insufficient for 
 want of the averment of any matter unnecessary to be proved, nor for the 
 omission of the words ' as appears by the record,' or of the words ' with force 
 and arms,' or of the words ' against the peace,' nor for the insertion of the 
 words ' against the form of the statute,' instead of ' against the form of the 
 statutes,' or vice versS, nor for that any person mentioned in the indictment is 
 designated by a name of office, or otlier descriptive appellation instead of his 
 proper name, nor for omitting to state the time at which the offence was com- 
 mitted in any case where time is not of the essence of the offence, nor for statin" the 
 time imperfectly, nor for stating the offence to have been committed on a day 
 subsequent to the finding of the indictment, or on an impossible day, or on a 
 day that never happened, nor for want of a proper or perfect venue, nor for 
 want of a proper or formal conclusion, nor for want of or imperfection in the 
 addition of any defendant, nor for want of the_ statement of the value or price 
 of any matter or thing, or the amount of damage, injury, or spoil, in any case 
 where the value or price, or the amount of damage, injury, or spoil, is not of the 
 essence of the offence." § 25 enacts, that " every objection to any indictment 
 for any formal defect apparent on the face thereof shall be taken, by demurrer 
 or motion to quash such indictment, before the jury shall be sworn, and not 
 afterwards ; and every court, before which any such objection shall be taken 
 for the formal defect, may, if it be thought necessary, cause the indictment to 
 be forthwith amended in such particular by some officer of the court or other 
 person, and thereupon the trial shaU proceed as if no such defect had appeared." 
 
 > 14 & 15 v., c. 100, § 23, cited in last note. See, as to the former law, E. 
 «. HoUond, 6 T. E. 624, 625 ; E. v. Haynes, 4 M. & Sel. 214 ; E. v. Feargua 
 O'Connor, 6 Q. B. 16 ; 7 G. 4, c. 64, § 20. 
 
 ' E. V. "Woodward, 1 Moo, C. C. 323 ; E. v. Dowling, Ey. & M. 433. 
 
268 AVEEMENTS OF PLACE — LOCAL OFFENCES. [PAET 11. 
 
 § 281. In indictments, however, for those offences which the § 227 
 law regards as hearing a local character, the proof respecting the 
 place must still correspond with the allegation ; though probably 
 in most cases of variance on this point the courts would sanction 
 an amendment of the record.^ The distinction between local and 
 transitory offences is not very clearly drawn, but in the former cate- 
 gory may be safely included, — among others, — burglary,^ but not 
 highway-robbery;^ house-breaking;* stealing in a dwelHng-house ; ' 
 sacrilege ; ^ riotously demolishing churches, houses, machinery, &c. ; '' 
 maUciously firing a dwelling-house, perhaps an out-house, but not a 
 stack ;^ forcible entry ;^ poaching;^" nuisances to highways;" and 
 malicious injuries to sea-banks, mill-dams, or other local property. 
 In most of these cases it is sufficient to allege and prove the parish, 
 township, or other local district, less than a county, in which the 
 offence was committed ;-^^ but in some, a more accurate description 
 is necessary. 
 
 § 282. Thus, an indictment for not repairing a highway must § 227 
 specify the situation of the road within the parish, and any sub- 
 stantial variance between the description and the evidence will be 
 material.^' So, on an indictment for night poaching, it has been 
 held, by a majority of the judges, that the locus in quo must be 
 described either by name, ownership, occupation, or abuttals, and 
 that it is not sufficient to allege that the prisoner was found " in a 
 
 ' 14 & 15 v., c. 100, § 1, cited ante, § 249. 
 
 2 1 Russ. C. & M. 826 ; R. «. St. John, 9 C. & P. 40. 
 
 3 R. V. Bowling, Ry. & M. 433. 
 
 •• R. V. Bullock, cited in n. to 1 Moo. C. C. 324. 
 
 ' R. II. Napper, 1 Moo. C. C. 44 ; R. v. Jarrald, 1 L. & Cave, 301 ; 32 L. J. 
 M. C. 258, S. 0. 
 « Arch. Cr. PI. 365. ? R. v. Richards, 1 M. & Rob. 177. 
 
 8 R. V. Woodward, 1 Moo. C. C. 323. » 2 Leon. 186. 
 
 w R. V. Ridley, R. & R. 515. 
 " R. V. Steventon, 1 C. & Kir. 55. 
 12 See R. V. Napper, 1 Moo. C. C. 44. 
 
 " R. 0. Great Canfield, 6 Esp. 136 ; R. v. Upton-on-Severn, 6 0. & P. 133 ; 
 R. V. Steventon, 1 C. & Kir. 55. See R. v. March. Dow. of Downshire, 4 A. & 
 E. 232 ; R. v. Waverton, 17 Q. B. 562. If a carriage-way is described as a 
 bridle-way, the variance is material, R. a St. Weonard's, 6 C. & P. 582. See, 
 also, E. V. Lyon, Ry. & M. 151. 
 
CHAP. I.] AVERMENTS OP PLACE — OP TIME. 269 
 
 certain close in the parish of A."^ If the defendant be charged 
 with taking or destroying fish in water adjoining a dwelling-house, 
 and if the boundary of any parish, township, or vill, happen to be 
 in or by the side of such water, it is sufficient to prove that the 
 offence was committed either in the parish, township, or vill named 
 in the indictment, or in any such local district adjoining the water ; ^ 
 and if the charge be that of stealing oysters, or oyster brood, 
 the bed, laying, or fishery may be described by name or other- 
 wise, without stating it to be in any particular parish, township, or 
 vill.* An indictment for an affray cannot be sustained unless it 
 contain an averment that the offence was committed in a public 
 street or highway, and unless that averment be supported by corre- 
 sponding proof.* 
 
 § 283. It would be extremely difficult to advance any sensible § 228 
 argument in favour of this distinction, which the law recognises 
 between local and transitory offences. On an indictment, indeed, 
 against a parish for not repairing a highway, it may be convenient 
 to allege, as it will be necessary to prove, that the spot out of 
 repair is within the parish charged ; and in those very few cases, 
 where the statute upon which an indictment is framed, gives the 
 penalty to the poor of the parish in which the offence is com- 
 mitted, a similar allegation may be properly inserted ; but why a 
 burglar should be entitled to more accurate information respect- 
 ing the house he is charged with having entered, than the high- 
 way robber can claim as to the spot where his offence is stated to 
 have been committed, it is impossible to say; either full information 
 should be given in all cases or in none. 
 
 § 284, Averments of time in criminal proceedings are now even § 229 
 
 ' R. ■». Ridley, R. & R. 515, iinder the repealed Act of 57 G. 3, o. 90, § 1 ; 
 R. V. Crick, 5 C. & P. 508, per Vaughan, B., under 9 G. 4, c. 69, § 9. In R. v. 
 Owen, 1 Moo. C. C. 118, where the close was described by name and occupation 
 but the name proved was different from that alleged, the judges held that the 
 variance was fatal. See R. v. Andrews, 2 M. & Rob. 37 ; and R. v. Eaton 2 
 Den. 274 ; S. C. nom. R. v. Uezzell, 3 C. & Kir. 150. 
 
 2 24 & 25 v., c. 96, § 24. s Id. § 26. 
 
 « R. 0. O'Neill, I. R., 6 C. L. 1. 
 
270 ALLEaATIONS OP TIME, NUMBER AND VALUE. [PAET 11. 
 
 of less importance than those of place ; for, excepting in the very 
 few cases where time is of the essence of the offence, the indict- 
 ment^ need not contain any allegation respecting it.^ Indeed, 
 independent of the new law, the date specified in the indictment 
 has been so far disregarded, that where a court had no jurisdiction 
 to try a criminal, except for an oifence committed after a certain 
 day, the judges held that no objection could be taken to the in- 
 dictment in arrest of judgment, for alleging that the act was done 
 before that day, the jury having expressly found that this was not 
 correct.* 
 
 § 285. Allegations of number and value are, also, in general § 230 
 immaterial in indictments. Thus, if a party be charged with 
 stealing five horses, he may be convicted of stealing one ; or if 
 he be indicted for larceny or robbery, and the property be laid 
 as of the value of twenty shillings, the offence will be complete, 
 though it appear that the article stolen was of less value than any 
 coin of the realm, provided that is was of so^ne value to the owner.* 
 In certain cases, however, value is essential to constitute the ofi'ence ; 
 
 ' The same law prevails with respect to coroner's inquisitions, 6 & 7 V., c. 83, 
 § 2 ; R. 1). Ingham, B. & S. 257 ; 33 L. J., Q. B. 183, S. C. 
 
 2 14 & 15 v., c. 100, § 24, cited ante, § 280, n. 3. In rejecting the old rule, 
 which required a day to be specified, but did not require that day to be proved, 
 the Legislature has adopted my Uncle Toby's reply to the argument used by 
 Corporal Trim, when telling his unfortunate story of the King of Bohemia. 
 
 " ' There was a certain King of Bohemia, but in what year of our Lord ' ' I 
 
 would not give a halfpenny to know,' said my Uncle Toby. ' Only, an' please 
 your Honour, it makes a story hole the letter in the face.' ' Leave out the date 
 entirely. Trim;' said my uncle, 'a story passes very well loithout these niceties, 
 unless one is pretty sure of em! ' " 
 
 3 E. V. Treharne, 1 Moo. C. C. 298. In this case the court claimed juris- 
 diction under 11 G. 4 & 1 W. 4, c. 66, § 24, which provided that forgers and 
 utterers might be tried in the county where they were apprehended or in 
 custody. That Act came into operation on the 20th July. The prisoner was 
 tried where he was apprehended. The act of forgery complained of was laid 
 in the indictment as having been committed on the 2nd July, but the jury 
 found that it had been committed after the 20th. See, also, R v. Levy, 2 Stark. 
 K. 458. 
 
 * E. V. Morris, 9 0. & P. 347, per Parke, B. ; R. ii. Bingley, 5 C. & P. 602, 
 per Gurney, B. ; E. v. Olark, E. & E. 181. The fact of the article being in 
 the possession of the prosecutor is, in general, evidence that it was of value to 
 him. Id. 
 
CHAP. I.] ALLEGATIONS OF NUMBER AND VALUE, 271 
 
 as where a bankrupt is indicted for fraudulently concealing or re- 
 moving property to the value of ten pounds,^ or for absconding with 
 property to the amount of twenty pounds,^ or a person is indicted 
 for maliciously injuring property to an amount exceeding five pounds,^ 
 or a tenant is indicted for stealing a chattel or fixture let to him with 
 his house or lodging, and exceeding the value of five pounds,* or a 
 party is charged with stealing in a dwelling-house chattels, &c., 
 to that amount,^ or with stealing, or with destroying or damaging, 
 either maliciously or with intent to steal, any trees in a park, pleasure- 
 ground, garden, or orchard, above the value of one pound, or any 
 trees elsewhere above the value of five pounds.^ 
 
 § 286. In such cases as these, the evidence must so far correspond § 230 
 with the allegation as to show that the statutable ofi'ence has been 
 committed : that is, the property fraudulently or maliciously dealt 
 with, stolen, or destroyed, must be proved, as well as alleged, to be 
 of the requisite value; but if this be done, the exact amount speci- 
 fied in the indictment need not be proved. In R. v. Forsyth,'' a 
 bankrupt was charged with concealing his property, and the indict- 
 ment, — after specifying many articles without stating the separate 
 value of each, — added these words, " and also one hundred other 
 articles of furniture and a certain debt due from J. T. to the 
 prisoner, to the value of twenty pounds and upwards ; "^ but the 
 judges held that this indictment was bad, as all the property con- 
 cealed was not specified, and no distinct value was put upon the 
 articles enumerated. It would seem to follow from this case, that 
 
 1 32 & 33 v., c. 62, § 11, rr. 4, 5 ; 35 & 36 V., c. 57, § 11, rr. 4, 5, Ir. 
 
 2 32 & 33 v., c. 62, § 12 ; 35 & 36 V., c. 57, § 12, Ir. 
 
 3 24 & 25 v., c. 97, § 51. The damage must be done at one time, E. ii. 
 Williams, 3 New R. 338, per Ir. C. C. ; 9 Cox, 338, S. C. The value of each 
 article injured need not be stated, hut it will he sufficient to allege that the 
 amount of the aggregate damage exceeded £5, E. v. Thoman, 12 Cox, 54. 
 
 * 24 & 25 v., c. 96, § 74. If the value of the property stolen do not exceed 
 £5, the prisoner is not Kahle to penal servitude. Id. 
 
 = 24 & 25 v., c. 96, § GO. 
 
 « 24 & 25 v., c. 96, § 32 ; 24 & 25 V., c. 97, §§ 20, 31. Where several trees 
 have been stolen or damaged at the same time, their collective value will satisfy 
 the Act ; E. v. Shepherd, 37 L. J., M. C. 45 ; 1 Law Rep., C. C. 118 ; and 11 
 Cox, 119, S. C. 7 R. & R. 274. 
 
 ' This case was decided under the repealed Act of 5 6. 2, e. 30, § 1. 
 
272 ALLEGATIONS OF NUMBER AND VALUE. [PABT II. 
 
 where value, being material, is ascribed to several articles collec- 
 tively, the offence must be made out as to each of those articles. 
 
 § 287. In an indictment for embezzlement against a clerk or § 231 
 servant, or against a person employed either in her Majesty's 
 public service, or in the police, if the offence relate to any money 
 or valuable security, it is sufficient to allege that money was 
 embezzled, without specifying any particular coin or valuable 
 security; and such allegation may be supported by equally loose 
 evidence;^ and it seems, even by proof of a general deficiency of 
 money that ought to be forthcoming, without showing from what 
 persons the money was received, or of what coins it consisted, or 
 that any particular sum was received, and not accounted for by 
 the prisoner.^ So, also, " in any indictment in which it shall be 
 necessary to make any averment as to any money,^ or any note of 
 the Bank of England, or any other bank, it shall be sufficient to 
 describe such money or bank-note simply as money, without 
 specifying any particular coin or bank-note ; and such allegation, 
 so far as regards the description of the property, shall be sus- 
 tained by proof of any amount of coin or of any bank-note, 
 although the particular species of coin of which such amount was 
 composed, or the particular nature of the bank-note, shall not be 
 proved ; and in cases of embezzlement and obtaining 'money or 
 bank-notes by false pretences, by proof that the offender em- 
 bezzled or obtained any piece of coin or any bank-note, or any 
 portion of th^value thereof, although such piece of coin or bank- 
 note may have been delivered to him in order that some part of 
 the value thereof should be returned to the party delivering the 
 same, or to any other person, and such part shall have been 
 returned accordingly."* 
 
 § 288. It is often allowable to omit from the indictment, and it § 232 
 
 1 24 & 25 v., c. 96, § VI. 
 
 " R. V. Grove, 7 C. & P. 635 ; 1 Moo. C. C. 447, S. C, per eight judges, in- 
 cluding the three chiefs against the remaining seven. 
 
 3 See R. V. GumUe, 2 Law Rep., C. C. 1 ; 42 L. J., M. C. 7, and 12 Cox 
 248, S. C. 
 
 M4 & 15 v., c. 100, § 18. 
 
CHAP. I.] ALLEGATIONS OF QUALITY — ESSENTIAL DESCEIPTION. 273 
 
 is seldom necessary to prove with precision, allegations of quality; 
 or, in other words, those allegations which describe the mode in 
 which certain acts have been done. Thus, it is unnecessary in any 
 indictment 1 for murder or manslaughter to set forth the manner 
 in which, or the means by which, the death of the deceased was 
 caused ; but it is sufficient to charge in every indictment for 
 murder that the defendant did feloniously, wilfully, and of his 
 malice aforethought kill and murder the deceased, and in every 
 indictment for manslaughter, that he did feloniously kill and slay 
 him.^ Should, too, an indictment for homicide unnecessarily 
 allege the means of death, it would be quite sufficient for the 
 proof to agree with the allegation in its general character, without 
 precise conformity in every particular. So, if the charge be of a 
 felonious assault with a staff, and the proof be of such an assault 
 wdth a stone ; or if a wound, alleged to have been given with a 
 sword, be proved to have been inflicted by an axe ; or if a pistol 
 be stated to have been loaded with a bullet, and it turns out to 
 have been loaded with some other destructive material,^ the charge 
 is su^Dstantially proved, and no variance occurs.'' 
 
 § 289. The fourth general rule which regulates' the law of § 233 
 variance, is that allegations of matter of- essential description 
 should be proved as laid. It is impossible to explain with pre- 
 cision the meaning of these words ; and the only practical mode of 
 understanding the extent of the rule is to examine some of the 
 leading decisions on the subject, and then to apply the reasoning 
 
 ^ This term includes incLuisitions taken liefore ooronerSj R. -o. Ingham, 33 
 L. J., Q. B. 183 ; 5 B. & S. 257, S. C. 
 
 2 24 & 25 v., c. 100, § 6. 
 
 3 E. V. Oxford, 9 C. & P. 525, 548. See R. v. Hughes, 5 C. & P. 126, the 
 marginal note of which is calculated to mislead. 
 
 * 1 East, P. 0. 341 ; B. v. Martin, 5 C. & P. 128, per Parke, B. ; 1 Russ. C. 
 
 6 M. 557. See further, as to the law prior to the passing of Ld. Campbell's 
 Act in 1851, R. v. M'Conkey, Ir. Cii. R. 77, per Torrens, J. ; R. v. Waters, 
 
 7 C. & P. 250 ; 1 Moo. C. C. 457, S. C. ; R. v. CulMn, 5 0. & P. 121 ; R. v. 
 Thompson, 1 Moo. C. C. 139 ; 1 Lew. C. 0. 193, S. C. ; R. v. KeUy, 1 Moo. 
 0. C. 113 ; 1 Lew. C. 0. 194, S. C. ; 2 Hale, 185, 186 ; R. v. Mosley, 1 Moo. 
 C. C. 97 ; 1 Lew. 0. C. 189, S. C. ; R. v. TonJinson, 6 0. & P. 370, per 
 Patteson, J. ; R. v. Turner, 1 Lew. C. C. 177, per Parke, B. ; R. v. Warman, 
 1 Den. 183. 
 
274 MATTER OF ESSENTIAL DESCRIPTION. [PAET IX. 
 
 or ruling contained therein to other analogous cases, always 
 bearing in mind that the judges have large powers of granting 
 amendments both in civil and in criminal proceedings.^ And first, 
 with respect to the criminal law, it is now clearly established, that 
 the name or nature of the property stolen or damaged is matter of 
 essential description. Thus, for example, if the charge be one of 
 firing a stack of hay, and it turns out to have been a stack of 
 wheat ; or if a man be accused of steaUng a drake, and it is proved 
 to have been a goose, or even a duck, the variance is fatal, unless 
 an amendment be permitted.^ A diverting instance of th* appli- 
 cation of this rule, and one which forcibly illustrates the advantage 
 of allowing amendments, occurred some years back at the assizes 
 for Hertford. A man was charged with stealing " a slop." The 
 theft was clearly proved ; but, when called upon for his defence, 
 the prisoner exclaimed, "Why, my lord, it ain't no slop." " You 
 hear what he says," observed the judge, addressing the jury. "Is 
 it a slop, gentlemen ? " " No, my lord, it's a smock," said one of 
 the jurymen. " Then you must acquit the prisoner." He was 
 acquitted ; but the grand jury not being discharged, a second 
 indictment was preferred and found, charging him with stealing 
 " a smock." Nothing daunted, the prisoner now pleaded autrefois 
 acquit, and called several witnesses to prove that the article he 
 had stolen was in fact a slop, and this question was submitted to 
 a second jury with much gravity by the learned judge.^ 
 
 § 290. With respect to the description of animals, the stealing § 234 
 of which is made a statutable offence, it would seem to be sufficient 
 to use the generic term which includes the whole species, even 
 though the Act should employ more specific language. This 
 doctrine has been recognised by the judges in a case of sheep 
 stealing. The words of the Act* on which the indictment was 
 founded, were, any " ram, ewe, sheep, or lamb ; " the charge was 
 of killing a sheep, with intent to steal the carcase ; the proof was. 
 
 • See ante, §§ 220, 225, 249. 
 
 2 Under § 1 of 14 & 15 V., e. 100, cited ante, § 249. 
 ^ 29 Law Mag. 12, 13. 
 
 " 7 & 8 G. 4, c. 29, § 25. The same words are now contained in 24 & 25 V 
 c. 96, § 10. _ ■' 
 
CHAP. I.J NAME OF PROPERTY STOLEN OR DAMAGED. 275 
 
 that a sheep was killed, but the sex could not be discoyered. 
 Upon this, the prisoner's counsel contended, that the jury could 
 not presume that the animal was a wether, and that, if it was an 
 ewe, the indictment was bad ; but a great majority of the judges, 
 while they admitted that the first proposition was sound law, held 
 that the word " sheep" was a generic term, which included equally 
 rams, ewes, and wethers, and the conviction was accordingly con- 
 firmed.^ So, an indictment for stealing a sheep will now be 
 supported by evidence of killing a lamb.^ Whether a charge of 
 stealing a horse would be sustained by proof of stealing a gelding, 
 a mare, a colt, or a fiUy,^ is by no means clear ; though, if the 
 principle be carried out to its legitimate extent, it would seem 
 that no variance would in such case arise. 
 
 § 291. On prosecutions for forgery under the old law, great § 234a 
 nicety used to be required in describing the instrument forged ; 
 and while that offence continued to be a capital crime, many a 
 forger had reason to rejoice that an excessive minuteness of de- 
 scription afforded an opportunity of escape from the gallows by 
 causing a variance between the allegations and the proofs. The 
 law, however, is now happily amended, and the punishment for 
 forgery has become less severe but more certain. The forger is no 
 longer sentenced to death on conviction, but he seldom can claim 
 
 1 K. •«. M'CuUey, 2 Moo. 0. C. 34 ; 2 Lew. C. C. 2V2, S. C. ; E. u. 
 Bannam, Crawf. & D. C. C. 147. These cases overrule R. v. Puddifoot, 1 Moo. 
 C. C. 247. 
 
 2 E. V. Spicer, 1 C. & Kir. 699 ; 1 Den. 0. C. 82, S. C, overruling E. v. 
 Loom, 1 Moo. C. C. 160. The decision in E. v. Loom was under the repealed 
 Act of 15 G. 2, c. 34, wHch, Uke the Act of 7 & 8 G. 4, c. 29, § 25, specified 
 lambs as well as sheep. In an old Act of 25 H. 8, c. 13, §§ 2, 13, which is 
 now repealed by 19 & 20 V., c. 64, and which prohibited persons from having 
 above 2000 sheep, it was expressly enacted, that " lambs under the age of one 
 whole year shall not be adjudged for sheep prohibited by the statute.'' The 
 special insertion of such a clause leads rather to an inference, that, without 
 it, the mention of the grown animal would have included the young. See 
 next note. 
 
 ' These are the words used in 24 & 25 V., c. 96, § 10. Under an old Act 
 against horse-stealing, which only mentioned " horses, geldings, and mares " it 
 was held that proof of steahng a filly supported an indictment for stealino' 
 a ma/re, E. v. Welland, E. & E. 494. 
 
 T 2 
 
276 SUBSTANCE OP OFFENCE NAME OF PERSON INJURED. [PART II. 
 
 an acquittal on the ground of some senseless technicality. The 
 Act of 1861, which consolidates the law on this subject/ expressly 
 enacts, in § 42, that, " in any indictment for forging, altering, 
 offering, uttering, disposing of, or putting off, any instrument, it 
 shall be sufficient to describe such instrument by any name or 
 designation by which the same may be usually known, or by the 
 purport thereof, without setting out any copy or fac-simile thereof, 
 or otherwise describing the same or the value thereof." A similar 
 laxity of description is permitted, whenever any person is indicted 
 for engraving or making " any instrument, matter, or thing," or for 
 using or unlawfully possessing any plate, material, or paper on which 
 any instrument, matter, or thing shall have been engraved, made, or 
 printed.^ 
 
 § 292. In all indictments, too, for offences under the Debtors' § 234b 
 Act, 1869, it is sufficient to " set forth the substance of the offence 
 charged, in the words of the Act specifying the offence, or as near 
 thereto as circumstances admit, without alleging or setting forth 
 any debt, act of bankruptcy, trading, adjudication, or any proceeding 
 in, or order, warrant or document of, any court acting under the 
 Bankruptcy Act, 1869."^ The Irish Debtor's Act, 1872, contains 
 a similar provision.* 
 
 § 293. The name of the person injured,^ and, indeed, the name of § 235 
 every person necessarily mentioned in the indictment,^ is generally 
 matter of essential description, and must formerly have been proved 
 with a precision which was but httle calculated to engender any 
 
 1 24&25 V.,c. 98. 
 
 2 24 & 25 v., c. 98, § 43. => 33 & 33 y_^ (,_ 62, § 19. 
 « 35 & 36 v., c. 57, § 19, Ir. 
 
 ' See, as to tlie old law on this subject, R. v. Biss, 8 0. & P. 773 ; 2 Moo. 
 C. 0. 93, S. 0. ; E. v. Robinson, Holt, N. P. E. 595 ; E. -o. Campbell, 1 C. & 
 Kir. 82 ; E. v. Waters, 1 Den. 356 ; 2 C. & Kir. 864, S. C. ; E. •;;. Willis, 1 
 Den. 80 ; E. v. Stroud, 1 C. & Kir. 187 ; 2 Moo. C. 0. 270, S. C. ; E. v. 
 Sweeny, Ir. Cir. E. 366 ; E. v. Smith, 1 Moo. C. C. 402 ; 6 C. & P. 151, S. C. ; 
 E. V. Evans, 8 C. & P. 765 ; E. v. Sheen, 2 Id. 634 ; E. v. Hogg, 2 M. & 
 Eob. 380. 
 
 « See, as to the old law on this subject, E. v. Dunmun-y, Ir. Cir. E. 312 ; E. 
 V. Walker, 3 Camp. 264 ; E. v. Bush, E. & E. 372. 
 
CHAP. I.J NAMES AND DESCEIPTIONS IN INDICTMENTS. 277 
 
 ardent feelings of respect for the criminal law. In the present day, 
 however, there can he little room for douht, that the court would in 
 every case of mere misnomer^ direct an amendment to be made 
 almost as a matter of course ; ^ hut still a question may occasionally 
 arise as to what the nature of the amendment ought to be. The fol- 
 lowing rules, therefore, may furnish some guide on this subject : — 
 1st. If the name of the injured party cannot be proved, it will suffice to 
 describe him as a person " whose name is to the jurors unknown."* 
 2nd. It is not necessary to describe a party by what is, in strictness, 
 his right name ; but it will be sufficient to state any name he 
 has assumed,* or by which he is generally known, and the omis- 
 sion of a second christian name has been frequently held to be 
 immaterial.^ 3rd. An illegitimate child is not entitled to the 
 surname either of the mother or of the putative father, but can 
 only acquire a surname by reputation.^ 4th. The proper mode of 
 describing a peer is by his christian name and rank in the peerage ; 
 but the christian name may be omitted ; '' and it seems that under 
 the degree of a duke, a nobleman may be designated by the simple 
 title of "lord."^ 5th. Foreigners of rank maybe described by 
 their christian names and foreign titles, provided they be generally 
 
 1 See R. V. Welton, 9 Cox, 297. 
 
 2 Under § 1 of 14 & 15 V., c. 100, cited ante, § 249. 
 
 3 See K. V. Welton, 9 Cox, 297. 
 
 * E. V. Norton, E. & R. 510. See E. v. Williams, 7 C. & P. 298. In E. v. 
 Toole, Dear. & Bell, 194 ; 7 Cox, 266, S. C, where the only proof of the pro- 
 secutor's christian name was the statement of a witness, who said that he had 
 seen the prosecutor sign the charge against the prisoner, and the deposition 
 before the magistrates, and that the signatures of those documents, which the 
 witness identified, corresponded with the name laid in the indictment, the 
 court held that the evidence was sufficient. 
 
 " Att.-Gen. v. Hawies, 1 Tyr. 3 ; E. ■». Berriman, 5 C. & P. 601 ; E. v. , 
 
 6 id. 408 ; WUUams v. Bryant, 5 M. & W. 447 ; 2 Euss. C. & M. 795—797. 
 But see E. v. M'Anemey, Ir. Cir. E. 270, per Crampton, J. 
 
 6 E. V. Waters, 1 Moo. C. C. 457; 7 C. & P. 250, S. tt; E. v. Clark, E. & 
 E. 358. 
 
 ' E. V. Frost, Pearce & D. 474. 
 
 8 E. V. Pitts, 8 C. & P. 771, where the prosecutor was described as " George 
 Talbot Eice, Lord Dynevor," instead of " George Talbot, Baron Dynevor ;" 
 E. V. Elliott, id. 772, where the words were, " The Eight Honourable William 
 Fitzhardinge, Lord Segrave,'' he being an Earl. It seems that "Edward, 
 Bishop of Hereford," is not a right description, id. 771. 
 
278 NAMES AND DESCEIPTIONS IN INDICTMENTS. [PART II. 
 
 known by those appellations ;^ or it will suffice, as it seems, to 
 describe them by their christian and surnames, with the addition of 
 the word esquire, that being the title which English courtesy con- 
 fers on foreign noblemen.^ 6th. If a parent and child bear the 
 same name, it will suffice in an indictment to describe the latter by 
 that name without the addition of "junior."^ And lastly, where 
 joint-stock companies, trustees, or other joint owners have been 
 injured, several Acts of Parliament have been passed, which render 
 it sufficient in such cases to describe in the indictment one person 
 only by name, and to state that the offence has been committed 
 against that person, and another or others, as the case may be.* 
 By a statute passed in the present reign, ^ the same laxity of de- 
 scription is allowed, under certain circumstances, in informations or 
 complaints before justices of the peace. 
 
 ^ E. V. Gregory, 8 Q. B. 508, where the prosecutor was held suflSciently de- 
 scribed as " Charles Frederick Augustus William, Duke of Brunswick and 
 Luneburg," his name being Ch. Fr. Aug. Wm. D'Este, and he having ceased 
 to be the reigning Duke ; K. v. SuUs, 2 Lea, 861, where, in an indictment for 
 larceny, the goods stolen were held to be properly laid as the property of 
 Victory, Baroness Turkheim, the prosecutrix being an Alsatian lady, whose 
 real name was Selina Viotoiie. In both these cases the parties were well known 
 by the names used. ^ R. v. Graham, 2 Lea. 547. 
 
 3 R. V. Peace, 3 B. & A. 579 ; E. v. Hodgson, 1 Lew. C. C. 236, per Parke, 
 B. ; E. D. Bland, id., per Bolland, B. ; Sweeting v. Fowler, 1 Stark. E. 106 ; 
 R. V. Bayley, 7 C. & P. 264. See ante, § 195. 
 
 ■• 7 G, 4, c. 64, § 14, enacts, that " in any indictment or information for any 
 felony or misdemeanor, wherein it shall be requisite to state the ownership of 
 any property whatsoever, whether real or personal, which shall belong to, or 
 be in the possession of, more than one person, whether such persons be partners 
 in trade, joint tenants, parceners, or tenants in common, it shall be sufficient 
 to name one of such persons, and to state such property to belong to the person 
 so named, and another or others, as the case may be ; and whenever in any 
 indictment or information for any felony or misdemeanor, it shall be necessary 
 to mention, for any purpose whatsoever, any partners, joint tenants, parceners, 
 or tenants in common, it shall be sufficient to describe them in the manner 
 aforesaid ; and this jfcovision shall be construed to extend to all joint-stock 
 companies and trustees." See, also, 7 G. 4, c. 46, § 9. 
 
 * 11 & 12 v., c. 43, § 4, enacts, that "in any information or complaint, or 
 the proceedings thereon, in which it shall be necessary to state the ownership 
 of any property belonging to or in the possession of partners, joint tenants, par- 
 ceners, or tenants in common, it shall be sufficient to name one of such persons 
 and to state the property to belong to the person so named, and another or 
 others, as the case may be ; and whenever in any information or complaint, or 
 
CHAP. I.] NAME OF INJURED PAETY NEED NOT BE PROVED. 279 
 
 § 294. In some few instances the Legislature has still further in- § 235a 
 terposed for the purpose of avoiding the danger of variance, and has 
 expressly enacted, that, to justify a conviction for certain offences, 
 the name of the injured party need neither be alleged nor proved. 
 Fof instance, if a person be indicted for any offence against the Act 
 of 1861 relating to malicious injuries to property, it will suffice to 
 allege and prove that he did the act charged with intent to injure or 
 defraud, and no allegation or proof is necessary that the prisoner 
 intended to injure or defraud any particular person.^ The same 
 law prevails in all prosecutions " for forging, altering, uttering, 
 offering, disposing of, or putting off, any instrument,"^ or for obtain- 
 ing, or attempting to obtain, any chattel, money, or valuable security 
 by false pretences;^ and, in this last case the indictment will be good, 
 " without alleging any ownership of the chattel, money, or valuable 
 security."* So, also, in all indictments for stealing, or fraudulently 
 destroying, or concealing wills, ^ or for stealing, or fraudulently 
 
 the proceedings thereon, it shall be necessary to mention, for any purpose what- 
 soever, any partners, joint tenants, parceners, or tenants in common, it shall 
 be sufficient to describe them in manner aforesaid ; and whenever in any 
 such information or complaint, or the proceedings thereon, it shall be 
 necessary to describe the ownership of any work or building made, maintained, 
 or repaired at the expense of any county, riding, division, liberty, city, borough, 
 or place, or of any materials for the making, altering, or repairing of the same, 
 they may be therein described as the property of the inhabitants of such 
 county, riding, division, liberty, city, borough, or place respectively ; and aE 
 goods provided by parish officers for the use of the poor may, in any such in- 
 formation or complaint, or the proceedings thereon, be described as the goods 
 of the churchwardens and overseers of the poor of the parish, or of the over- 
 seers of the poor of the township or hamlet, or of the guardians of the poor of 
 the union to which the same belong, without naming any of them ; and all 
 materials and tools provided for the repair of highways, at the expense of 
 parishes or other districts in which such highways may be situate, may be 
 therein described as the property of the surveyor or surveyors of such high- 
 ways respectively, without naming him or them ; and all materials or tools 
 provided for making or repairing any turnpike roads, and buildings, gates, 
 lamps, boards, stones, posts, fences, or other things erected or provided for the 
 purpose of any such turnpike road, may be described as the property of the 
 commissioners or trustees of such turnpike road, without naming them ; and 
 all property of the commissioners of sewers of any district may be described as 
 the property of such commissioners, without naming them." 
 
 1 24 & 25 v., c. 97, § 60. See R. v. Newboult, 41 L. J., M. C. 63. 
 
 " 24 & 25 v., c. 98, § 44. 
 
 ^ 24 & 25 v., c. 96, § 88. ^ Id. ' Id. § 29. 
 
280 DESCRIPTIVE ALLEGATIONS IN ACTIONS. [PABT II. 
 
 taking, or maliciously destroying, records or legal documents,^ or 
 for stealing fixtures attached to any square, street, or place dedicated 
 to public use or ornament,^ it is not necessary to allege that " the 
 article in respect of which the offence is committed is the property of 
 any person." 
 
 § 295. The name of the prisoner is not a matter of essential § 236 
 description, because on this subject the prosecutor may have no 
 means of obtaining correct information. If, therefore, the prisoner's 
 name or addition be wrongly described, or if the addition be omitted, 
 the court may correct the error, and call upon the prisoner to plead 
 to the amended indictment.' 
 
 § 296. The rule which renders it necessary to prove essentially § 237 
 descriptive allegations need not, in this place, be illustrated at any 
 length with respect to civil actions, because the question has already 
 been discussed, while examining the cases that have been decided 
 on the statutes authorising amendments.* It may, however, be 
 observed, that in actions on special contract no variance will arise 
 from omitting part of the consideration for the defendant's promise, 
 unless such consideration be in the nature of a condition precedent.^ 
 In the case of Clark v. Morrell,^ the declaration stated that the 
 plaintiff agreed, amongst other things, to manage some chemical 
 
 1 24 & 25 v., 0. 96, § 30. 2 Id. § 31. 
 
 3 7 G. 4, 0. 64, § 19, enacts, that " no indictment or information shall be 
 abated by reason of any dilatory plea of misnomer, or want of addition, or of 
 ■vvTong addition of the party offering such plea, if the court shall be satisfied by 
 affidavit or otherwise of the truth of such plea ; but in such case the court 
 shall forthwith cause the indictment or information to be amended according 
 to the truth, and shall call upon such party to plead thereto, and shall proceed 
 as if no such dilatory plea had been pleaded. See R. v. Orchard, 8 C. & P. 
 565, where a woman charged with the murder of her husband, being described 
 as "A., the imfe of B. C," the record was amended by inserting the word 
 " widow" instead of " wife," per Ld. Abinger. 
 
 " Ante, § 227, et seq. 
 
 * As to the distinction between conditions precedent and conditions sub- 
 sequent, see Wynne v. Wynne, 2 M. & Gr. 8 ; Richards v. Hayward, id. 574 ; 
 Matthews v. Taylor, id. 667 ; Galloway v. Jackson, 3 id. 960 ; Fishmongers' Co. 
 v. Robertson, 5 id. 131 ; 6 Scott, N. R. 58, S. 0. ; Broolve v. Spong, 15 M. 
 & W. 153 ; Harrold v. Whitaker, 11 Q. B. 147. 
 
 s 1 M. & Gr. 841 ; 2 Scott, N. R. 17 ; 9 Dowl. 461, S. 0. 
 
CHAP. I.] DESCEIPTI-VT! ALLEGATIONS IN ACTIONS. 281 
 
 works for the defendants, who, in consideration of such agreement, 
 promised to pay him a certain salary ; it then contained an aver- 
 ment of mutual promises to perform the said agreement, and closed 
 with alleging a breach on the part of the defendants. The agree- 
 ment, on production, being found to contain stipulations that the 
 plaintiff should not communicate his discoveries to strangers, and 
 should give the defendants the exclusive benefit of his knowledge, 
 as far as their works were concerned, it was objected that there was 
 a variance between the declaration and the agreement, as the former 
 was silent as to these stipulations, which constituted material parts 
 of the consideration for the defendants' promise. Lord Abinger 
 thereupon amended the record, but the Court of Common Pleas was 
 unanimously of opinion that, although the learned judge had the 
 power of authorising an amendment, yet the exercise of such power 
 was, in fact, unnecessary. Chief- Justice Tindal observed, " The 
 consideration for the defendants' promise is the agreement to which 
 reference is made. The plaintiff does not profess to set out the 
 whole of the agreement. There is no variance unless there is an 
 omission of something of a conditional nature, which, if stated, would 
 require an allegation of performance." And Mr. Justice Coltman 
 added, " if the matters omitted had raised a condition precedent, 
 the omission would have constituted a variance ; but the matters, 
 the omission of which is complained of, did not raise any condition 
 precedent. They were not matters which the plaintiff was bound to 
 aver, and, if traversed, to prove, in order to support his action ; but 
 would have formed the subject of a cross action, if not performed on 
 the part of the plaintiff."^ 
 
 § 297. It may further be remarked, that in actions of assumpsit, § 238 
 if any part of the contract proved should vary materially from what 
 is alleged in the pleadings, the variance will be fatal. Thus, where 
 a declaration stated a specific contract for the sale of a dwelHng- 
 house and fixtures, for the residue of a term of years, to commence 
 from a given day, and to satisfy this allegation, a contract was pro- 
 duced which, on the face of it, showed that it was a sale of a fee- 
 simple, or at least, left it uncertain what was the interest intended 
 
 1 1 M. & Gr. 851, 852. 
 
282 DESCRIPTIVE ALLEGATIONS IN ACTIONS. [PAET II. 
 
 to be conveyed, it was held that the plaintiff must be nonsuited.^ 
 So, in an action against a tenant for not repairing premises demised, 
 where the contract as declared upon was, that the plaintiff should 
 let, and the defendant should take, a farm at a certain rent, the 
 plaintiff undertaking to put the premises in repair within twelve 
 months, and the defendant undertaking to keep them in repair after 
 that time, the court directed a nonsuit, it appearing on the trial that 
 the agreement contained an additional stipulation, that the plaintiff 
 should keep the buildings insured in QOOL, and should rebuild in 
 case of fire.^ 
 
 1 Hughes V. Parker, 8 M. & "W. 244. 
 
 2 Beech v. White, 12 A. & E. 668 ; 4 P. & D. 399, S. C. 
 
CHAP. II.J EVIDENCE MUST BE CONFINED TO POINTS IN ISSUE. 283 
 
 CHAPTEE 11. 
 
 CONFINING EYIDENOB TO POINTS IN ISSUE. 
 
 § 298. The second general rule, which governs the production of § 239 
 testimony, is, that the evidence must be confined to the points in 
 issue. This rule is founded upon the consideration that, since 
 these points have been alone selected by the parties in their pleading, 
 as those on which they are mutually willing to rest the fate of the 
 cause,^ any evidence in support of other facts which, not being ex- 
 pressly alleged, must be assumed to have no existence, or not being 
 expressly denied, must be admitted to be true, would be obviously 
 improper. Thus, where to an action of assumpsit the defendant 
 pleaded the statute of limitations, to which there was a replication 
 that he did promise within six years, and issue thereon, the plaintiif 
 was not allowed to prove that the action was grounded on a fraudu- 
 lent receipt of money by the defendant, and that the fraud was first 
 discovered within six years from the commencement of the suit.* So, 
 where in covenant, the breach assigned was that the defendant had 
 not used the plaintiffs farm in a husbandlike manner, but had com- 
 mitted waste, evidence of bad husbandry not amounting to waste 
 was rejected.^ Again, in an action of defamation, where the issues 
 raised by the pleas of justification were whether the plaintiff's 
 scholars were ill fed, badly lodged, and covered with vermin, the 
 defendant's counsel was not permitted to put any questions to the 
 witnesses, with the view of showing that the boys were also badly 
 educated ;* and in another action of the same kind, where the de- 
 fendant had only pleaded the general issue. Lord EUenborough 
 would not allow the plaintiff to prove that the assertions contained 
 in the Ubel were false. " There is no plea of justification on the 
 record," said his Lordship, " and, therefore, I can no more hear a 
 falsification on the one side, than a justification on the other." ^ 
 
 1 Steph. PL 115. ^ Clark v. Hougham, 2 B. & C. 149. 
 
 3 Harris v. Mantle, 3 T. R. 307. * Boldron v. Widdows, 1 C. & P. 65. 
 
 * Stuart V. Lovell, 2 Stark. R. 94 ; Cornwall v. Richardson, Ry. & M. 305. 
 
284 NEW RULES OP PLEADING THEIE OBJECTS. [PART II. 
 
 § 299. The cases just cited in illustration of this rule have been § 240 
 selected at hazard ; but in order to obtain practical information on 
 this important subject, it may be advisable to examine at some 
 length the rules of pleading, together with the leading decisions 
 explanatory of their operation.^ These rules, which came into force 
 on the 2nd of November, 1875, are intended, — like those which they 
 supersede, — to effect three material objects ; first, to make each 
 party acquainted with the intended case of his opponent, and thus 
 to prevent either side from being taken by surprise at the trial ; 
 secondly, to save the expense of collecting unnecessary evidence ; 
 and thirdly, to bring legal defences more prominently forward on 
 the face of the record.^ 
 
 § 300. With the view of attaining these objects the rules provide, 
 in general terms, that all pleadings shall henceforth consist, first, of 
 a statement of claim or complaint,^ next, of a statement of defence, 
 set-off, or counter-claim, thirdly, of a statement of reply,* if any, 
 and lastly, of a joinder of issue on the one side or the other.' They 
 then go on to provide, that " every pleading shall contain, as con- 
 cisely as may be, a statement of the material facts on which the 
 party pleading relies, but not the evidence by which they are to be 
 proved."^ 
 
 § 301. In addition to these cardinal propositions ten other 
 pleading rules may here be cited as having a material bearing on 
 the Law of Evidence. First comes Eule 17, which provides, 
 that " every allegation of fact in any pleading in an action, not 
 being a petition or summons, if not denied specifically or by neces- 
 
 ' Most of the oases referred to in the following observations were decided 
 with respect to the old rales of pleading ; hut that fact being borne in mind, 
 they will serve to illustrate the present rules. 
 
 2 See Isaac v. Farrer, 1 M. & W. 70, per Ld. Abinger ; 4 Dowl. 755, 
 S. C. ; Bamett v. Glossop, 1 Bing. N. C. 636, 637, per Park and Bosanquet, 
 Js. ; 3 Dowl. 625, S. C. ; Gutsole v. Mathers, 1 M. & W. 502, 503, per Ld. 
 Abinger. 
 
 ' These terms are used synonymously. See Rules of Sup. Ct., Ord. xix. 
 rr. 2, 8, et passim. ■> See post, § 304. 
 
 ° Ord. xix., rr. 2, 21. « R. 4. 
 
CHAP. II.] ADMISSIONS AMENDMENTS SPECIFIC DENIALS. 285 
 
 sary implication, or stated to be not admitted in the pleading of 
 the opposite party, shall be taken to be admitted, except as against an 
 infant, lunatic, or person of unsound mind not so found by inqui- 
 sition." Rule 18 next provides, that " each party to any pleading, not 
 being a petition or summons, must allege all such facts not appear- 
 ing in the previous pleadings as he means to rely on,^ and must 
 raise all such grounds of defence or reply, as the case may be, as if 
 not raised on the pleadings would be likely to take the opposite 
 party by surprise, or would raise new issues of fact not arising out 
 of the pleadings, as for instance, fraud, or that any claim has 
 been barred by the Statute of Limitations, or has been 
 released." According to Eule 19, "No pleading, not being a 
 petition or summons, shall, — except by way of amendment,^ — raise 
 any new ground of claim, or contain any allegation of fact 
 inconsistent with the previous pleadings of the party pleading the 
 same." 
 
 § 302. By virtue of Eule 20 "it shall not be sufficient for a 
 defendant in his defence to deny generally the facts alleged by the 
 statement of claim, or for a plaintiff in his reply to deny generally 
 the facts alleged in a defence by way of counter-claim, but each 
 party must deal specifically with each allegation of fact of which he 
 does not admit the truth." Rule 21 provides, that, " subject to 
 the last preceding rule, the plaintiff by his reply may join issue 
 upon the defence, and each party in his pleading, if any, subse- 
 quent to reply, may join issue upon the previous pleading. Such 
 joinder of issue shall operate as a denial of every material allegation 
 
 • An exception to this proposition is contained in Eule 15, which, provides, 
 that " no defendant in an action for the recovery of land, who is in possession 
 by himself or his tenant, need plead his title, unless his defence depends on an 
 equitable estate or right, or he claims relief upon any equitable ground against 
 any right or title asserted by the plaintiff." It will suffice in such case to state 
 that he is in possession. Id. 
 
 2 See, also, Eule 14, which provides, that " no nev) assignment shall hereafter 
 be necessary or used. But everything, which has heretofore been alleged by 
 way of new assignment, may hereafter be introduced by amendment of the 
 statement of claim." See Earp v. Henderson, L. E., 3 Ch. D. 254 ; 45 L. J., 
 Ch. 738, S. C, as explained by Hall v. Eve, L. E., 4 Ch. D. 341 ; 46 L. J. 
 Ch. 146, S. C. 
 
286 GENEEAL ISSUE PRACTICALLY ABOLISHED. [PART II. 
 
 of fact in the pleading upon which issue is joined, but it may except 
 any facts which the party may be willing to admit, and shall then 
 operate as a denial of the facts not so admitted." 
 
 § 303. It will be noticed that in their practical effect these last 
 two rules almost entirely^ do away with what used to be termed by 
 Special Pleaders " the General Issue," so far as the statement of 
 defence is concerned, though,^ — at the option of the parties, — they 
 retain in the reply or any subsequent pleading that sweeping form 
 of traverse. Their operation on the plea, will be best understood by 
 referring to the former law on that subject, and pointing out how it 
 differs from the present practice. Under the old forms of pleading, 
 wheneTer the defendant could show that in fact no deht ever existed 
 before action brought, he might do so under the plea of " never in- 
 debted." For instance, if the action were for goods sold and de- 
 livered, he might defend himself under that plea, by proving that 
 they were paid for by ready money ; ^ that they were sold on credit, 
 which was unexpired when the action was commenced ; ^ that they 
 were bought through an agent, and that before the expiration of the 
 credit, the defendant had remitted the price of the goods to the 
 agent ;* that they were sold under a condition, that if they did not 
 answer their purpose, nothing should be paid for them, and that in 
 fact they did not answer their purpose ; ^ that they were sold under 
 any special agreement, which had not been performed ; ^ that they 
 were delivered under a contract of barter ;'' that the goods delivered 
 did not answer the description of the articles which the vendor pro- 
 
 1 See post, § 311. 
 
 2 Buasey v. Bamett, 9 M. & W. 312. But see Littlechild v. Banks, V Q. B. 
 "739. 
 
 8 Broomfleld v. Smith, 1 M. & W. 542, overruling Edmonds v. Harris, 2 A. 
 & E. 414 ; 4 N. & M. 182, S. 0. 
 
 * Smyth V. Anderson, V Com. B. 21. 
 
 ^ Grounsell v. Lamb, 1 M. & AV. 352. See Lamond v. Davall, 9 Q. B. 1030. 
 
 = Broomfleld v. Smith, 1 M. & W. 543, per Ld. Abinger ; Garey v. Pyke, 10 
 A. & B. 512 ; 2 P. & D. 427, S. C. ; Hayselden v. Staff, 5 A. & E. 153 ; 6 N. & 
 M. 659, S. C. ; Mosely v. M'MuUen, 6 Ir. Law R., N. S. 69. 
 
 ' Harrison v. Luke, 14 M. & "W. 139 ; Smith v. Winter, 12 Com. B. 487 ; 
 Bracegirdle v. Hinks, 9 Ex. R. 361. 
 
CHAP. II.] GENEEAL ISSUE UNDER OLD PLEADING RULES. 287 
 
 fessed to sell;^ or that they turned out to he utterly useless.^ So, 
 in an action for use and occupation, the defence that the premises 
 were held under a demise at a rent payable quarterly, and that 
 before the rent became due, either the plaintiff,* or his superior 
 landlord,* evicted the defendant, or the former accepted a surrender 
 of a term from him, might have been given in evidence under the 
 " general issue." The defendant might, also,^ have proved under 
 the same plea that, before the rent was due, he received notice from a 
 mortgagee of the premises to pay the rent to him ; ^ but if the mort- 
 gagee's claim had not been made until after the rent had accrued, 
 and the plaintiff's right of action had consequently vested, the 
 demand would have furnished no defence.'^ In a similar action, the 
 defendant might probably have shown, under the plea of never in- 
 debted, that the premises were uninhabitable,* when such a defence 
 was a bar to the action ; ' or that there had been no actual entry by 
 him ;^° or that his occupation had not been by the sufferance of the 
 plaintiff ;^^ or that he had originally occupied the premises by the 
 permission of a prior owner, to whom he had paid aU arrears of rent 
 
 1 Gompertz v. Bartlett, 2 E. & B. 849. There an unstamped Mil of exchange, 
 purporting to be a foreign hill, had heen sold, "but on proof that it was really 
 drawn in. London, the vendee was held entitled to recover back the price of the 
 bill, on the ground of a failure of consideration. See now 33 & 34 V., c. 97, 
 § 52, cited ante, § 72. 
 
 2 Cousins V. Paddon, 2 0. M. & E. 457 ; 4 Dowl. 488 ; 5 Tyr. 535, S. C, 
 recognised by Ld. Denman in Hayselden v. Staff, 5 A. & E. 162 ; BaiUie v. Kell, 
 4 Bing. N. C. 638 ; 6 Scott, 379, S. C. ; Chapel v. Hicks, 2 C. & M. 214 ; AUen 
 V. Cameron, 3 Tyr. 907. These cases overrule Roffey v. Smith, 6 C. & P. 662. 
 
 3 Prentice v. Elliott, 5 M. & W. 606 ; Dodd v. Acklom, 6 M. & Gr. 672. 
 * Selby V. Browne, 7 Q. B. 620. 
 
 ' See Hickman v. Machin, 4 H. «& N. 716. 
 
 " Waddilove v. Bamett, 2 Bing. N. C. 538 ; 2 Scott, 763 ; 4 Dowl. 347, 
 S. C, recognised in Hayselden v. Staff, 5 A. & E. 159. See ante, § 102. 
 
 ' Wilton V. Dunn, 17 Q. B. 294, ovemiliiig on this point "Waddilove «. 
 Bamett, 2 Bing. N. C. 538, and Pope v. Biggs, 9 B. & C. 245. See Hickman 
 V. Machin, 4 H. & N. 716. 
 
 8 Smith V. Marrable, 11 M. & "W". 5, 8, 9, per Parke, B. 
 
 ' See same case, and compare it with Sutton v. Temple, 12 M. & "W. 52 ; 
 Hart V. Windsor, id. 68 ; Gott v. Gandy, 2 E. & B. 845 ; Miuray v. Mace, I. R., 
 8 C. L. 396 ; and Wilson v. Finch Hatton, L. B,., 2 Ex. D. 336. 
 
 1" Lowe v. Ross, 5 Ex. R. 553 ; overruling a dictum of Tiadal, C. J., lq 
 Atkins V. Humphrey, 2 Com. B. 654. 
 " Powell V. Hihbert, 15 Q. B. 129. 
 
288 EEPLIES EVASIVE PLEADINGS. [PAET H. 
 
 without having received any notice of an assignment to the plaintiff; ^ 
 or that he had been let into possession by the plaintiff, under a con- 
 tract to purchase, which had contained no stipulation as to the 
 terms of occupancy, and which afterwards had gone off in conse- 
 quence of the plaintiff's inability to make out a good title ;^ or, in 
 short, the defendant might have given in evidence any other fact, 
 which would have proved that he had never so occupied the premises 
 as to render him liable, in point of law, to the payment of rent.* 
 Now, all these several defences require to be specifically set out in 
 the statement of defence. 
 
 § 304. In stating, as is done in Eule 21, that the plaintiff " by 
 his reply may join issue upon the defence," it is not intended that 
 he must take that course ; but, — excepting in a case where, under the 
 old system of common law pleading, a new assignment would have 
 been necessary,* — he may still, instead of amending his claim under 
 Order XXVII., either traverse the allegations in the defence gene- 
 rally or specially, or confess and avoid them, or unite in one reply 
 those several answers.^ 
 
 § 305. Under Eule 22, " when a party in any pleading denies an 
 allegation of fact in the previous pleading of the opposite party, he 
 must not do evasively, but answer the point of substance. Thus, 
 if it be alleged that he received a certain sum of money, it shall not 
 be sufficient to deny that he received that particular amount, but he 
 must deny that he received that sum or any part thereof, or else set 
 out how much he received. And so, when a matter of fact is 
 alleged with divers circumstances, it shall not be sufficient to deny 
 it as alleged along with those circumstances, but a fair and sub- 
 stantial answer must be given." For interpreting this rule, as 
 well as those which provide that facts not denied must be taken 
 
 1 Cook V. Moylan, 1 Ex. R. 67 ; 5 Dowl. & L. 101, S. C. 
 
 ^ Winterbottom v. Ingram, 7 Q. B. 611. See Hall v. Vaughan, 6 Price, 157; 
 Heaxn u. Tomlin, Pea. E. 192, per Ld. Kenyon ; Howard v. Shaw, 8 M. & W. 
 118 ; Kirtland v. Pownsett, 2 Taunt. 145 ; Markey v. Coote, I. E., 10 0. L. 149. 
 
 3 SmitlL D. MarraMe, 11 M. & W. 8, 9, per Parke, B. 
 
 * See ante, § 301, n. 2. 
 
 ' Hall V. Eve, L. E., 4 Ch. D. 341, per Ct. of App. ; 46 L. J., Ch. 145, S. 0. 
 
CHAP. II.] ISSUES TO BE DEFINITE AND DISTINCT. 289 
 
 as admitted,^ and that facts denied must be specifically denied,^ 
 the courts very properly will enforce a strict observance of the 
 language used. That language was intended to be construed 
 strictly, in order to enable each party to know what the real issues 
 between him and his opponent are. The whole meaning of the 
 system is to narrow the parties to definite and distinct issues, 
 and thereby to diminish expense and delay, especially as regards 
 the amount of oral testimony required on either side at the 
 trial.^ In a case which called forth the above remarks from the 
 Master of the EoUs, the plaintiff prayed for a dissolution of part- 
 nership, stating that he and the defendant had become partners 
 under a parol agreement, and that the terms of the arrangement 
 had been definitely agreed upon at a certain interview. The de- 
 fendant, in his statement of defence, admitted the agreement, but 
 denied that the terms had been " definitely agreed upon as alleged." 
 Sir George Jessel held that this denial was evasive vnthin the mean- 
 ing of the rule. " The words ' as alleged,' " said his Lordship, 
 " mean the whole allegations of the statement of claim, not of the 
 particular paragraph. I cannot tell from his pleading what part of 
 the plaintiff's allegations the defendant means to deny. He may 
 mean to deny that the terms were definitely agreed upon at the 
 interview of the 17th of September, although they were definitely 
 agreed upon on some other day, or he may have some peculiar view 
 as to the meaning cif the word ' definitely.' He may not be able to 
 say that the terms were not arranged as agreed upon, but he may 
 take the word ' definitely ' because he thinks it may give him 
 some mode of escape. I cannot make out what he means. He is 
 bound, if he intends to deny, to deny that any terms of arrangement 
 have ever been come to, if that is what he means. If he does not 
 mean that, he should deny that any terms of arrangement were ever 
 come to except the following, and then state what those terms were ; 
 otherwise, there is no specific denial."* 
 
 1 See Rule 17, cited ante, § 301. 
 
 2 See Rule 20, cited ante, § 302. 
 
 3 Thorp V. Holdsworth, 45 L. J., Ch. 406, 408, per Jessel, M. R. ; L. R., 3 Ch. 
 D. 637, S. 0. 
 
 * Id. 45 L. J., Ch. 408, 409. 
 
 V 
 
290 TRAVEESE OF REPRESENTATIVE CHARACTER. [PART II. 
 
 § 306. Eule 23 provides that " when a contract is alleged in any- 
 pleading, a hare denial of the contract hy the opposite party shall be 
 construed only as a denial of the making of the contract in fact, and 
 not of its legality or its sufficiency in law, whether with reference to 
 the Statute of Frauds or otherwise." The effect of this last rule is, 
 that, whenever a party intends to rely on the illegality or insuffi- 
 ciency in law of any contract, whether with reference to the Statute 
 of Frauds or otherwise, he naust specially plead such illegahty or 
 insufficiency, and it will not be sufficient to traverse allegations 
 made by his opponent in anticipation of objections to the contract 
 upon such grounds.^ 
 
 § 807. Again, Eule 11 provides that " if either party wishes to 
 .deny the right of any other party to claim as executor, or as trustee, 
 whether in bankruptcy or otherwise, or in any representative or 
 other alleged capacity, or the alleged constitution of any partner- 
 ship firm, he shall deny the same specifically." 
 
 § 308. In some few instances it will be difficult to reconcile the 
 language employed in this last rule, and also that used in Rule 17,^ 
 with the special enactments contained in several Acts of Parliament. 
 For example, if an action be brought to recover a doctor's biU, and 
 the plaintiff allege in his statement of claim that he is a "legally 
 qualified medical practitioner,"^ what will be the effect of the de- 
 fendant omitting to traverse that special allegation? According to the 
 New Rules this amounts to an admission of the fact not traversed. 
 But then, what effect is to be given to " The Medical Act " * of 1858, 
 which, — in order to diminish the pubHc mischief caused by quackery, 
 — expressly enacts, in § 82, that "no person shall be entitled to re- 
 cover any charge in any court of law for any medical or surgical 
 advice, attendance, or for the performance of any operation, or for any 
 medicine which he shall have both prescribed and supplied, unless 
 he shall prove upon the trial that he is registered under the Act ? " 
 Will it be open to the defendant to contend, that an admission is not 
 strictly proof, but only a, substitute for proof , and that in spite of his 
 
 1 01arke«.Callow,46L.J.,Q.B.53,perCt.ofApp. ^ cited ante, S 301 
 
 3 See 21 & 22 V., c. 90, § 34. " 21 & 22 V., c. 90. 
 
CHAP. II.] WANT OF STAMP OF JURISDICTION. 291 
 
 defective pleading, the court must take care that the registration of 
 the plaintiff be duly proved at the trial ? If this reasoning be not 
 recognised, the law, as it exists, is exposed to the absurd anomaly 
 that a quack doctor, who must ineyitably be nonsuited in any county 
 court, may have a fair chance of recovering his charges, if he elects 
 to sue in the High Court. 
 
 § 309. Again, can the objection that an instrument is moi siampe<i, 
 or is insufficiently stamped, be taken at the trial by a party, who 
 has not relied on that point in his pleading ? And if he can do so 
 on ordinary occasions, is the same course open to him, when his 
 opponent has affirmatively alleged in his pleading that the document 
 in question has been duly stamped ? If either of these queries be 
 answered in the negative, — and if the New Eules are strictly inter- 
 preted they must be so answered, — then arises the following 
 question, what steps must be taken either by the presiding judge, 
 or by the ministerial officer of the court, so as to protect the 
 interests of the Revenue, where the fiscal rights of the Crown have 
 been obviously set at nought by one or both of the litigants ?^ 
 
 § 310. The question how far a defendant can avail himself of § 267 
 want of jurisdiction in the court without raising that defence by 
 means of a special plea, does not seem to have been set at rest by 
 the New Rules of Pleading, and, independent of those rules, has been 
 left in an unsatisfactory state by the case of Spooner v. Juddow.^ 
 There the Judicial Committee of the Privy Council decided, that 
 when the facts ousting the jurisdiction are brought by the plaintiff 
 himself to the notice of the court, the mere omission of the de- 
 fendant to plead specially will not give the court jurisdiction over 
 the suit, but it will be bound, whatever be the nature of the issues 
 raised, either to nonsuit the plaintiff, or to direct a verdict for the 
 defendant. The court, however, declined to state what would be the 
 law, if the plaintiff were to close his case vsdthout betraying the want 
 of jurisdiction, and the defendant were then, without any special 
 
 1 See 7161(1 V. Woods, 7 A. & E. 114 ; 2 N. & P. 117, S. C. ; Dawson v. Mac- 
 donald, 2 M. & W. 26 ; M'DowaU v. Lyster, id. 52. See, also, post, § 397. 
 
 2 6 Moo. P. C. R. 257. 
 
 tr 2 
 
292 PLEA OV NOT GUILTY BY STATUTE. [PAKT II. 
 
 plea raising the point, to offer evidence of facts with a view of show- 
 ing that the cause of action was ultra -vires. 
 
 § 311. We have been hitherto discussing the operation of the § 293 
 pleading rules in Umiting and defining the amount of evidence 
 admissible in ordinary actions ; but it must be carefully borne in 
 mind, that the numerous class of cases, in which the defendant is 
 expressly empowered to plead ' Not Guilty by statute,' and to give 
 special matter in evidence under such plea, is not affected by these 
 rules further than this, that the party who intends so to plead 
 cannot " plead any other defence without the leave of the court or a 
 judge." ^ The pleader, too, by virtue of the old rules, must " insert 
 in the margin of the plea the words ' By Statute,' together with the 
 year or years of the reign in which the Act or Acts of Parliament 
 upon which he rehes for that purpose were passed, and also the 
 chapter and section of each of such Acts, and shall specify whether 
 such Acts are public or otherwise, othervnse such plea shall be 
 taken not to have been pleaded by virtue of any Act of Parliament ; 
 and such memorandum shall be inserted in the margin of the issue, 
 and of the Nisi Prius Eecord." ^ 
 
 § 312. It is extremely difficult to lay down, as an abstract pro- § 294 
 position of law, what shall amount to an acting in pursuance of a 
 statute, or in execution of an office, so as to entitle a defendant to 
 give special matter in evidence under the general issue, to rely on 
 the want of notice of action,^ or on the fact that he has tendered 
 amends, or otherwise to claim any particular protection which 
 may be afforded by Act of Parliament ; but thus much may be 
 stated with safety, that if a party believes, bona fide, in the 
 existence of a state of facts, which, if they had existed, would 
 have afforded a defence to the action,* he is, — without reference to 
 
 ' Rules of Sup. Ot., Order xix., r. 16. 
 
 2 Reg. Plead., H. T., 16 V., r. 21 ; 1 E. & B. Ixxxii. 
 
 3 See Arnold v. Hamel, 9 Ex. R. 404 ; Kirby v. Simpson, 23 L. J., M. C. 165 ; 
 10 Ex. R. 358, S. C. In this last case it was held that a magistrate acting in 
 execution of Ms office is entitled by 11 & 12 V., c. 44, § 9, to notice of action, 
 although he acts maliciously and without reasonable and probable cause. 
 
 * Hermann v. Seneschal, 32 L. J., C. P. 43 ; 13 Com. B., N. S. 392 S. C. • 
 
CHAP. II.] PLEA OF NOT GUILTY BY STATUTE. 293 
 
 the reasonableness of such behef,^ — entitled to protection, although 
 he may have proceeded illegally or exceeded his jurisdiction.^ 
 Statutes of this kind are intended for the protection of honest 
 persons, who bona fide mean to discharge their duty;^ and the 
 court will, consequently, so interpret their proyisions, as to save 
 harmless all persons who act illegally under the reasonable belief 
 that they are authorised in what they do by Act of Parliament ; and 
 this, too, whether the error complained of has been committed in 
 respect of time, placSj or circumstance.* 
 
 § 313. It is now finally determined that, under the plea of ' Not § 295 
 Guilty hy statute,' the defendant may set up any defence that could 
 be specially pleaded, whether it be founded wholly or partly on 
 the statute, or be merely sustainable at common law.^ Thus, in 
 
 Heath v. Brewer, 15 Com. B., N. S. 803 ; Eoberts v. Orchard, 2 H. & C. 169, 
 per Ex. Ch. ; 33 L. J., Ex. 65, S. C. See Downing v. Capel, 36 L. J., M. 0. 
 97 ; Selmes v. Judge, 6 Law Eep., Q. B. 724 ; 40 L. J., Q. B. 287, S. C. nom. 
 Judge V. Selmes. 
 
 ' Chamherlain v. King, 6 Law Eep., C. P. 474 ; S. 0. nom. King 1>. Chamber- 
 lain, 40 L. J., C. P. 273. Prior to this decision, it was thought by many that 
 the belief, to be available, must have rested " on some colour of reason." See 
 Cann v. Clipperton, 10 A. & E. 582 ; Cook v. Leonard, 6 B. & C. 351 ; 9 D. & 
 R. 339, S. C, as qualified by the Ct. of Ex. ia Jones v. Gooday, 9 M. & W. 743, 
 
 745. See, also, Kine v. Evershed, 10 Q. B. 143 ; Leete v. Hart, 3 Law Eep., 
 C. P. 322 ; Spooner v. Juddow, 6 Moo. P. C, R. 283, per Ld. Campbell ; Booth 
 v. Clive, 10 Com. B. 827 ; Eead v. Coker, 13 Com. B. 850 ; Arnold o. Hamel, 
 9 Ex. K. 409 ; Hermann v. Seneschal, 32 L. J., C. P. 43 ; 13 Com. B. N. S. 
 392, S. C. 
 
 2 Hazeldine v. Grove, 3 Q. B. 997, 1006, 1007 ; 3 G. & D. 210, S. C. ; Spooner 
 ■B. Juddow, 6 Moo. P. C. R. 257, 283 ; Jones v. Gooday, 9 M. & W. 736, 743— 
 
 746, per Parke and Alderson, Bs. ; Theobald v. Crichmore, 1 B. & A. 227, 229, 
 230, per Ld. Bllenborough, and Bayley, J. See, further, EUot v. Allen, 1 Com. 
 
 B. 18 ; ShatweU v. HaU, 10 M. & W. 523 ; 2 Dowl. N. S. 567, S. C. ; Hopkins 
 V. Crowe, 4 A. & E. 774 ; Lidster v. Borrow, 9 A. & E. 654 ; Bush v. Green, 
 4 Bing. N. C. 41 ; Smith v. Shaw, 10 B. & C. 277 ; 5 M. & E. 225, S. C. ; Davis 
 V. Curhng, 8 Q. B. 286 ; Cox u. Eeid, 13 Q. B. 558 ; Thomas «. Stephenson, 
 2 E. & B. 108 ; Newton v. EUis, 5 E. & B. 115 ; Poulsum v. Thirst, 2 Law Eep., 
 
 C. P. 449 ; 36 L. J., C. P. 225, S. C. 
 
 3 Per Parke, B., in Jones v. Gooday, 9 M. & W. 743. 
 
 " Hughes V. Buckland, 15 M. & W. 346, 353, 354, per Pollock, C.^ B. ; Horn 
 V. Thornborough, 3 Ex. E. 846 ; 6 Dowl.. & L. 651, S. C. 
 
 s Ross V. Clifton, 11 A. & E. 631 ; 1 G. & D. 72 ; 9 Dowl. 1033, S. C. ; 
 Maund v. Monmouth Can. Co., C. & Marsh. 606, 608, per CressweU, J., stating 
 
294 PLEA OF NOT GUILTY BY STATUTE. [PAKT II. 
 
 an action for an excessive distress, such a plea puts in issue, not 
 only the matter of justification, but the tenancy and the owner- 
 ship of the goods ;^ and if a plaintiff sues as administrator, the 
 defendant, who has thus pleaded, may dispute his title to that 
 character.^ The natural result of this rule is, that the courts 
 will not, in general, allow the defendant to plead " not guilty by 
 statute" in connection with any other defence; but if a reasonable 
 doubt exists as to whether the defendant, in regard to the particular 
 act complained of, is entitled to such a plea, the rule will, in favour 
 of substantial justice, be sometimes relaxed.^ 
 
 § 314. The statutes enabling persons, who act in pursuance § 296 
 thereof, or otherwise in execution of their offices, to plead not 
 guilty, and to give special matter in evidence under such plea, 
 are still extremely numerous, although the effect of modern legis- 
 lation has been greatly to reduce their number. For instance, 
 by the Act of 5 & 6 V., c. 97, § 3, so much of any clause or 
 provision in any Act commonly called Public local and personal, 
 or Local and personal, or in any Act of a local and personal 
 nature,* whereby any party was entitled, before the 10th of 
 August, 1842, to give special matter in evidence under the general 
 issue, is repealed. The Irish Common Law Procedure Act of 
 1853* also repeals, by § 69, "so much of any Act of Parliament 
 as entitles or permits any person to plead the general issue only, 
 and to give special matter in evidence without pleading the same." 
 Unfortunately a similar clause is not to be found in either of the 
 English Common Law Procedure Acts ; and the pleader is conse- 
 quently still left to discover, as best he may, in what cases the 
 
 the general opinion of the judges ; Fiaher v. Thames June. Ry. Co., 5 Dowl. 
 773 ; Haine v. Davey, 4 A. & E. 892 ; 6 N. & M. 356, S. 0. ; Eagleton v. 
 Gutteridge, 11 M. & W. 469, per Parke, B. 
 
 1 Williams v. Jones, 11 A. & E. 643. 
 
 2 Tharpe v. Stallwood, 5 M. & Gr. 768, per Cress-well, J. 
 
 3 Langford v. Woods, 8 Scott, N. R. 369 ; 7 M. & Gr. 625, S. C. 
 
 * As to the meaning of this phrase, see Richards v. Easto, 15 M. & W. 244 ; 
 Cock V. Gent, 12 M. & W. 234 ; Bamett v. Cox, 9 Q. B. 617 ; Pilkincton v 
 Riley, 6 Dowl. & L. 628 ; 3 Ex. R. 739, S. C. ; Shepherd v. Sharp, 25''l J ,' 
 Ex.254; 1 H. & N. 115, 8. C. 
 
 * 16 & 17 v., 0. 113, Ir. 
 
CHAP. II.J PLEA OF NOT GUILTY BY STATUTE. 295 
 
 defendant may or may not avail himself of this indefinite and 
 comprehensiye form of pleading. 
 
 § 315. It is not intended here to furnish a list of the statutes § 297 
 which authorise such pleas, but among them will be found the 
 Acts passed in 1861 for consolidating the law relating to larceny, 
 malicious injuries, and coin.^ In every action, too, which is 
 brought against a justice of the peace, " for anything done by 
 him in the execution of his office," the defendant, — ^besides enjoying 
 many other privileges,** — is allowed to plead the general issue, and 
 "to give any special matter of defence, excuse, or justification, 
 in evidence under such plea."^ He may even prove under the 
 general issue, that after notice of action and before the writ was 
 issued, he tendered amends to the plaintiff, or that after the com- 
 mencement of the suit, and before issue joined, he paid money 
 into court ; * and this circumstance is here mentioned, because in 
 
 1 24 & 25 v., 0. 96,.§ 113 ; c. 97, § 71 ; c. 99, § 33. See, also, tlie Seamen's 
 Clotlung Act, 1869, 32 & 33 V., c. 57, § 6 ; tlie Contagious Diseases, Animals, 
 Act, 1869, 32 & 33 V., «. 70, §§ 110—113. 
 
 2 See 11 & 12 v., c. 44 ; and Kirby v. Simpson, 23 L. J., M. C, 165, cited 
 ante, p. 292, n. 3. ' § 10. 
 
 ■• § 11 enacts, that " in every such case after notice of action shall be so given 
 as aforesaid, and before such, action shall be commenced, such justice to whom 
 such notice shall be given may tender to the party complaining, or to his 
 attorney or agent, such sum. of money as he may think fit as amends for the 
 injury complained of in such notice ; and after such action shall have been 
 commenced, and at any time before issue joined therein, such defendant, if he 
 have not made such tender, or in addition to such tender, shall be at liberty to 
 pay into court such sum of money as he may think fit, and which said tender 
 and pajrment of money into court, or either of them, may afterwards be given 
 in evidence by the defendant at the trial under the general issue aforesaid ; and 
 if the jury at the trial shall be of opinion that the plaintiff is not entitled to 
 damages beyond the sum so tendered or paid into court, or beyond the sums 
 so tendered and paid into court, then they shall give a verdict for the defendant, 
 and the plaintiff shall not be at liberty to elect to be nonsuit, and the sum of 
 money, if any, so paid into court, or so much thereof, as shall be sufiicient to 
 pay or satisfy the defendant's costs in that behalf, shall thereupon be paid out 
 of court to him, and the residue, if any, shall be paid to the plaintiif ; or if, 
 where .money is so paid into court in any such action, the plaintiflf shall elect 
 to accept the same in satisfaction of his damages in the said action, he may 
 obtain from any judge of the court in which such action shall be brought 
 an order that such money shall be paid out of court to bim, and that the 
 
296 EVIDENCE OE COLLATERAL FACTS EXCLUDED. [PART II. 
 
 most of the other statutes/ which empower defendants to plead 
 the general issue, and to tender or pay into court amends for the 
 injury complained of, it is expressly enacted that such tender or 
 payment into court shall be specially pleaded. 
 
 § 316. The rule confining evidence to the points in issue, not § 298 
 only precludes the litigant parties from proving any facts not 
 distinctly controverted by the pleadings, but it limits the mode 
 of proving even the issues themselves. Thus,^ it excludes all 
 evidence of collateral facts, which are incapable of aifording any 
 reasonable presumption as to the principal matters in dispute ; 
 and the reason is, that such evidence tends needlessly to consume 
 the public time, to draw away the minds of the jurors from the 
 points in issue, and to excite prejudice and mislead ; moreover, 
 the adverse party, having had no notice of such evidence, is not 
 prepared to rebut it. The due application of this rule will occa- 
 sionally tax to the utmost the firmness and discrimination of the 
 judge; so that while he shall reject, as too remote, every fact 
 which merely furnishes a fanciful analogy or conjectural inference, 
 he may admit as relevant the evidence of all those matters which 
 shed a real, though perhaps an indirect and feeble, light on the 
 question in issue. And here it will generally be found that the 
 circumstances of the parties to the suit, and the position in which 
 they stood^ when the ihatter in controversy occurred, are proper 
 subjects of evidence ; and indeed, the change in the law enabling 
 parties to give testimony for themselves, has rendered this proof 
 of " surrounding circumstances " still more important than it was in 
 former times.'*' In accordance with this doctrine it has been properly 
 held, that, in an action for money lent, the poverty of the alleged 
 
 defendant shall pay him his costs to be taxed, and thereupon the said action 
 shall be determined, and such order shall be a bar to any other action for the 
 same cause.'' 
 
 1 Not in all. See the County Ct. Acts, 9 & 10 V., c. 95, § 138 ; & 15 & 16 
 v., c. 54, § 6. See, also, the Acts of 1*861, cited ante, p. 295, n. 1 ; & 11 G. 2, 
 c. 19, §§ 20, 21. 2 Gr. Bv. § 52, in part for six lines. 
 
 " See Woodward v. Buchanan, 39 L. J., Q. B. 71 ; 5 Law Eep., Q. B. 285, 
 
 s. c 
 
 * Dowling V. DowUng, 10 Ir. Law R., N. S. 244, per Pigot, C. B. 
 
CHAP. II.] EES INTER ALIOS ACTiE EXCLUDED. 297 
 
 lender was a very relevant fact, the evidence of which was admissible 
 for the purpose of disproving the loan.^ 
 
 § 317. The most important class of facts which are excluded § 298a 
 on the ground of irrelevancy, comprises the acts and declarations, 
 either of strangers, or of one of the parties to the action in his 
 deahngs with strangers. These, — which in the technical language 
 of 'the law are denominated ' res inter alios act(Z,' — it would be 
 manifestly unjust to admit, since the conduct of one man under 
 certain circumstances, or towards certain individuals, varying as it 
 will necessarily do according to the motives which influence him, 
 the qualities he possesses, and his knowledge of the character of 
 those with whom he is dealing, can never afford a safe criterion by 
 which to judge of the behaviour of another man similarly situated, 
 or of the same man towards other persons. 
 
 § 318. The application and extent of this rule will be best under- § 299 
 stood by referring to a few of the leading decisions on the subject. 
 In an action of trover brought against the creditor of a bankrupt 
 by the assignees, the goods in dispute were sought to be recovered 
 on the ground that, before they came into the hands of the 
 defendant, acts of bankruptcy had been committed; and the 
 plaintiffs endeavoured to prove these acts by showing the prior 
 delivery of other goods to various creditors, who, after the fiat 
 had issued, had returned them to the assignees ; but the court 
 was of opinion that the conduct of these creditors in returning the 
 goods could not affect the title of the defendant. The only way 
 in which their conduct bore upon the case, was by showing their 
 conviction that they had received the goods under circumstances 
 which did not entitle them to keep possession; and as their 
 opinions, expressed after the fiat, could not have been received, 
 evidence of their acts, adduced for the purpose of raising an 
 inference respecting the previous intentions, either of themselves 
 or of the bankrupt, was equally inadmissible.^ So, proof of the 
 usage of a particular estate, however extensive it may be, is 
 
 ' Dowling V. Dowling, 10 Ir. Law B., N. S. 236. 
 
 2 Baokliouse v. Jones, 6 Bing. N. C. 65 ; 8 Scott, 148, S. C. 
 
298 KBS INTER ALIOS AGTM EXCLUDED. [PABT II. 
 
 inadmissible for the pui-pose of importing into the lease of a farm 
 on that estate some special stipulations relatiye to the mode of 
 cultivation.^ So, where the question between landlord and tenant 
 was, whether the rent was payable quarterly or half-yearly, 
 evidence of the mode in which other tenants of the same land- 
 lord paid their rent was rejected;^ and where it was necessary for 
 a brewer to prove that he had supphed a publican with good beer, 
 other publicans were not allowed to show that, during the same 
 period as the dealing in question, he had furnished them with beer 
 of an excellent quality, for a man may deal well with some of his 
 customers, though not with others.^ 
 
 § 319. In another case, where the point in issue was whether the 
 plaintiff's scholars were ill fed, a witness was not allowed to be asked 
 as to the comparative quality of the provisions supplied by the plain- 
 tiff, with those consumed in a particular school, where the witness 
 was educated, though evidence would be admissible to show the 
 general treatment of boys at schools.* Again, in an action of as- 
 sumpsit against a married woman, where the issue was in part, 
 whether the defendant had represented herself to the plaintiff as a 
 feme sole, and whether he had dealt with her beUeving her to be 
 such, it was held that evidence of the defendant's dealings with other 
 tradesmen could only be admissible, if at all, on the ground that 
 she had held herself out to them as a single woman, in such 
 a manner as to reach the plaintiff's ears.^ So, also, in an action 
 brought by the indorsee against the acceptor of a bill, where the 
 defence was that the acceptance was a forgery, evidence that a col- 
 
 1 Womersley v. Dally, 26 L. J., Ex. 219. 
 
 2 Carter v. Pryke, Pea. R. 95, per Ld. Kenyon. 
 
 ' Holoombe v. Hewson, 2 Camp. 391, per Ld. EUenboroiigh. 8ee, also, 
 HoUingham v. Head, 27 L. J., C. P. 241 ; 4 Com. B., N. S. 388, S. C. ; Kew v. 
 HutoMns, 10 Com. B., N. S. 829 ; Howard v. Steward, 36 L. J., C. P. 42 ; 
 2 Law Eep., C. P. 148, S. C. 
 
 ■■ Boldron. v. Widdows, 1 C. & P. 65, per Abbott, C. J. 
 
 * Bardeii v. Keverberg, 2 M. & W. 61. See Sniith v. WilMns, 6 C. & P. 
 180, where, tbe question being whether credit was given to defendant's wife 
 or to her father, evidence that other tradesmen had given credit to the 
 father was properly rejected by Tindal, C, J. Also Delamotte v. Lane 9 
 C. & P. 261. 
 
CHAP. II.] CUSTOMS OF MANORS WHEN ADMISSIBLE. 299 
 
 lection of bills, on which the defendant's acceptance was forged, had 
 been in the plaintiff's possession, and that some of them had been 
 circulated by him, was rejected, as no distinct proof was given that 
 the bill in question had ever formed part of that collection} 
 
 § 320. These last words deserve special notice, since they point § 300 
 out an exception to the rule under discussion, in favour of the 
 admissibility of facts which, though collateral, are proved to be 
 connected by some general link with the matter in issue. This 
 exception has been recognised in numerous cases. Thus, no rule 
 is better established, or more frequently acted upon, than that which 
 precludes the customs of one manor from being given in evidence 
 to prove the customs of another ; because, as each manor may have 
 customs peculiar to itself, to admit the peculiar customs of another 
 manor in order to show the customs of the manor in question, 
 would be a very false guide for the purpose of leading to any sound 
 conclusion, and would, in fact, put an end to all question as to the 
 peculiar customs in particular manors, by throwing them open 
 to the customs of all surrounding manors.^ Still, such customs 
 become evidence the moment that a foundation has been laid for 
 their admission, by clear proof of a sufficient connection between 
 the two manors. The mere fact, indeed, that the two lie within 
 the same parish and leet, will not be sufficient ; nor even that the 
 one was a subinfeudation of the other ; at least, unless it be clearly 
 shown that they were separated after the time of legal memory, 
 since otherwise they may have had different immemorial customs.^ 
 If, however, it can be satisfactorily proved that the customs in the 
 two manors are identical, or that the one was derived from the 
 other after the time of Richard the First, then the customs of each 
 will respectively become evidence ;*■ and so, also, if the custom in 
 
 > Griffits V. Payne, 11 A. & E. 131 ; 3 P. & D. 107, S. C. ; Thompson v. 
 Mosely, 5 C. & P. 502, per Ld. Lyndhurst ; Viney v. Baxss, 1 Esp. 293, 
 per L. Kenyon ; Balcetti ■;;. Serani, Pea. R. 142, per Buller, J. Such, 
 evidence -would be clearly inadmissible in an indictment for forgery, per 
 Ld. Denman, 11 A. & E. 133. 
 
 2 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 235, per Ld. Abinger ; 
 Eurneaux v. Hutohins, 2 Cowp. 807 ; Doe v. Sisson, 12 East, 62. 
 
 3 M. of Anglesey v. Ld. Hatherton, 10 Jl. & W. 218. 
 * Id. 242, 243, per Alderson, B. 
 
300 COLLATEBAL FACTS CONNECTED WITH FACT IN ISSUE. [PAET II. 
 
 question be a particular incident of the general tenure whicli is 
 proved to be common to the two manors, evidence may be given of 
 what the custom of the one is as to that tenure, for the purpose of 
 showing what is the custom of the other as to the same.^ For 
 instance, prove in a particular manor that borough English or 
 gavelldnd prevails, and then you may see from other manors what 
 are the peculiarities of these tenures.^ 
 
 § 321. The manors on the border between England and Scot- § 301 
 land,^ and those in the mining districts of Derbyshire and Cornwall, 
 will furnish other examples of the appHcation of this rule ; since, 
 throughout the former, a particular species of tenure, called tenant- 
 right, and in the latter, particular customs, as to the rights of the 
 miners and the rights to the minerals, prevail ; and conse«[uently, if 
 in one of the manors no example can be adduced of what is the 
 custom in any particular case, it is only reasonable that, in order to 
 explain the nature of the tenure or right in question, which is not 
 confined to a single manor, but prevails equally in a great number, 
 evidence should be admissible to show what is the general usage 
 with respect to that tenure or right.* Thus, where in each of 
 several manors belonging to the same lord, and forming part of the 
 same district, a particular class of tenants called assessional tenants 
 held the farms, to whom their tenements were granted by similar 
 words, evidence of the rights enjoyed by those tenants in one manor 
 was received, to show the extent of their rights in another.^ This 
 last 'case, indeed, raised no question as to manorial title ; for had 
 there been no manor at all, precisely the same evidence would have 
 been admissible, provided the land had been all held under the 
 assessiona,l tenure.^ 
 
 1 M. of Anglesey i). Ld. Hatherton, 10 M. & W. 242, 243, per Alderson, B.; 
 Stanley v. White, 14 East, 338, 341, 342, per Ld. EUenborough ; R. v. Ellis, 
 1 M. & Sel. 662, per id. ; D. of Somerset v. France, 1 Str. 662 ; Champian v. 
 AtMnson, 3 Keb. 90 ; explained by Rolfe, B., in 10 M. & W. 246, 247. 
 
 2 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 246, per Rolfe, B. 
 ' Rowe V. Parker, 5 T. R. 31, per Ld. Kenyon. 
 
 ^ M. of Anglesey v. Ld. Hatherton, 10 M. & W. 237, per Ld. Abinger. 
 <• Rowe V. Brenton, 8 B. & C. 758 ; 3 M. & R.. 361, S. C. 
 8 Per Ld. Abinger, in M. of Anglesey v.. Ld, Hatherton, 10 M, & "W. 237, 
 238. 
 
CHAP. II.] COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. 301 
 
 § 322. Again, upon a question whether the Crown, in right of § 302 
 the Duchy of Lancaster, had the exclusive privilege, under the 
 original charter granted to Henry Duke of Lancaster in the year 
 1349, of appointing a coroner within the honour of Pontefract, 
 evidence of appointments of coroners, and of their acting, in other 
 parts of the duchy, out of the honour of Pontefract, was held admis- 
 sible.^ On the same principle, the mode of conducting a particular 
 branch of trade in one place has been proved, by showing the manner 
 in which the same trade is carried on in another place ; ^ and where 
 the dispute at the trial was as to the exact line of boundary between 
 the manors of Wakefield and Kochdale, which the plaintiff contended 
 was the ridge of a mountain, whence the waters descended in oppo- 
 site directions, he was allowed to prove, in support of this view, 
 that the ridge of the same range of hills separated the manor of 
 Rochdale from another manor which adjoined the manor of Wake- 
 field ; because, this being a natural boundary, which was equally 
 suitable in both cases, it was highly improbable that it should have 
 been varied.^ 
 
 § 323. In Hke manner it has been held, — upon a question whether § 303 
 a slip of waste land, lying between the highway and the enclosed 
 lands of the plaintiff, belonged to him, or to the lord of the manor, — 
 that the lord might give evidence of acts of ownership on other parts 
 of the waste land between the same road and the enclosures of other 
 persons, although at the distance of two miles from the spot in 
 dispute, and although the continuity of the waste was interrupted for 
 the space of some sixty or seventy yards, by the intervention of a 
 bridge and some old houses.* So, where, in trespass, the object of 
 the plaintiff was to prove himself the owner of the entire bed of a 
 river flowing between his land and that of the defendant, and thus 
 to rebut the presumption that each party was entitled ad medium 
 
 I Jewison v. Dyson, 9 M. & W. 540. See Fleet v. Muiton, 41 L. J., Q. B. 49. 
 
 ^ Noble V. Kennoway, 2 Doug. 510. 
 
 3 Brisco V. Lomax, 8 A. & E. 198 ; 3 N. & P. 388, S. C. 
 
 ■> Doe V. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102 ; 2 Scott, 9, S. C, recognised 
 by Parke, B., in Jones v. Williams, 2 M. & W. 327, 328 ; Bryan v. Winwood, 
 1 Taunt. 208 ; Dendy v. Simpson, 18 Com. B. 831. 
 
302 COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. [PART II. 
 
 filum aquae/ he was allowed to give in evidence acts of ownership 
 exercised by himself upon the bed and banks of the river on the de- 
 fendant's side, lower down the stream, where it flowed between the 
 plaintiff's land and the farm of a third party, adjoining the defen- 
 dant's property ; as also repairs which he had done, beyond the 
 limits of the defendant's land, to a fence which, dividing that and 
 other land from the river, ran along the side of the stream for a 
 considerable distance, till it came opposite to the extremity of the 
 plaintiffs property on the other side.^ 
 
 ' Ante, § 119. 
 
 2 Jones V. Williams, 2 M. & W. 326. The observations of Parke, B., in this 
 case are so pertinent, that no apology is necessary for introducing them here at 
 length. " I am also of opinion that this case ought to go down to a new trial 
 because I think the evidence offered of acts in another part of one continuous 
 hedge, and in the whole bed of the river, adjoining the plaintiff's land, was 
 admissible in evidence, on the ground that they are such acts as might reason- 
 ably lead to the inference that the entire hedge and bed of the river and con- 
 sequently, the part in dispute, belonged to the plaintiff. Ownership may be 
 proved by proof of possession, and that can be shown by acts of enjoyment of 
 the land itself ; but it is impossible, in the nature of things, to confine the 
 evidence to the very precise spot on which the alleged trespass may have been 
 committed ; evidence may he given of acts done on other parts, provided there is 
 such a common character of locality between those parts and the spot in question as 
 would raise a reasonable inference in the minds of the jury, that the place in 
 dispute belonged to the plaintiff if the other parts did. In ordinary cases to prove 
 his title to a close, the claimant may give in evidence acts of ownership in any 
 part of the same enclosure ; for the ownership of one part causes a reasonable 
 iuference that the other belongs to the same person ; though it by no means 
 follows as a necessary consequence, for different persons may have balks of 
 land in the same enclosure ; but this is a fact to be submitted to the jury. So, 
 I apprehend, the same rule is applicable to a wood which is not enclosed by 
 any fence : if you prove the cutting of timber in one part, I take that to be 
 evidence to go to a jury to prove a right in the whole wood, although there be 
 no fence, or distinct boundary sun-ounding the whole ; and the case of Stanley 
 V. White, 14 East, 332, 1 conceive, is to be explained on this principle : there 
 was a continuous belt of trees, and acts of ownership on one part were held to 
 be admissible to prove that the plaintiff was the owner of another part, on 
 which the trespass was committed. So I should apply the same reasoning to 
 a continuous hedge ; though no doubt 'the defendant might rebut the inference 
 that the whole belonged to the same person, by showing acts of ownership on 
 his part along the same fence. It has been said in the course of the argument, 
 that the defendant had no interest to dispute the acts of ownership not opposite his 
 own land; but the ground on which such acts are admissibh is not the acguiescence 
 of any party : they are admissible of themselves proprio vigore, for they tend to prove 
 
CHAP. II.] COLLATERAL PACTS CONNECTED WITH FACT IN ISSUE. 303 
 
 § 324. The same principle applies with increased force to the § 304 
 case of mines, because it is not possible that the lessees of minerals, 
 lying under an extensive district, can enter upon, and take actual 
 possession of, every part of that which forms the subject of demise ; 
 and, moreover, the mode of occupying a mine cannot afford the same 
 evidence of possession as the occupation of the surface, the produce 
 of which is from time to time consumed' and renewed. When one 
 is taken, it is gone for ever. Evidence, therefore, of working under 
 one part of the surface is, under a demise of all mines and minerals 
 lying beneath a large continuous tract of waste land, evidence of 
 possession of the entire subject of demise.-^ 
 
 § 325. In these, and the like cases, it is for the judge to decide,^ § 305 
 whether such an unity of character exists between the spot in 
 dispute and the parcel of land over which acts of ownership have 
 been exercised, as to lead to the fair inference that both are subject 
 to the same rights, and constitute in fact but parts of an entire pro- 
 perty. If no such inference' can be raised, evidence of acts done 
 beyond the limits of the locus in quo will be inadmissible. Thus, 
 where it was attempted to connect parcels of waste land with each 
 other, merely by showing that they all lay within the same manor, 
 and between enclosures and public roads, it was held that evidence 
 of acts of ownership over some of these lands was inadmissible to 
 prove title to the others.^ 
 
 that he who does them is the owner of the soil ; though if they are done in the 
 absence of all persons interested to dispute them, they are of less weight. That 
 observation applies only to the effect of the evidence. Applying that reasoning 
 to the present case, surely the plaintiff, who claims the whole hed of the river, 
 is entitled to show the taking of stones, not only on the spot in question, hut 
 all along the bed of the river, which he claims as beiug his property ; and he 
 has a right to have that submitted to the jury. The same observation applies 
 to the fence and the banks of the river. What weight the jury may attach to 
 it is another question. The principle is the same as that which is laid down in 
 Doe V. Kemp." — pp. 331, 332. See, also, E. v. Brightside, Bierlow, 13 Q. B. 
 933 ; Peaidon v. UnderhiU, 16 Q. B. 120 ; Donegall v. Templemore, 9 Ir. Law 
 Eep., N. S. 3Y4, 406, per Christian, J. ; and In re BeKast Dock Act, I. R., 
 1 Eq. 128, 142. 
 
 1 Taylor v. Parry, 1 M. & G. 604, 615, per Tindal, C. J. ; 1 Scott, N. E. 
 
 5V6, S. C. 
 
 2 Doe V. Kemp, 7 Bing. 336, per Bosanquet, J. ; ante, § 24. 
 
 3 Doe V. Kemp, 2 Bing. N. C. 102. Ld. Demnan, in giving judgment, ob- 
 
304 COLLATERAL FACTS WHEN EXCLUDED IN CRIM. CASES. [PART 11. 
 
 § 326. This rule, limited in the manner above stated, is founded § 306 
 on common sense and common justice, and applies with even greater 
 force to criminal than to civil proceedings ; for, as one of the chief 
 objects of an indictment is to afford distinct information to the pri- 
 soner of the specific charge which is about to be brought against 
 him, the admission of any evidence of facts unconnected with that 
 charge, would be clearly open to the serious objection of taking the 
 prisoner by surprise. No man should be bound at the peril of Hfe 
 or liberty, fortune or reputation, to answer at once and unprepared 
 for every action of his hfe. Few even of the best of men would 
 choose to submit to such an ordeal.'^ If, therefore, on an indictment 
 for burglariously entering a house on a certain day and stealing 
 goods therein, the prosecutor fail in proving that any larceny was on 
 that occasion committed, he cannot abandon the charge of burglary, 
 and then proceed to show that the prisoner stole some of the articles 
 mentioned in the indictment on a previous occasion ; because, though 
 time is not usually a material allegation, yet the prisoner, having 
 been led to suppose that he was to meet a charge of burglary, 
 cannot be expected to come prepared to prove his innocence vdth 
 respect to a distinct offence, committed, if at all, at a totally different 
 time.^ So, an admission by the prisoner, that he has, at another 
 time, committed an offence similar to that with which he is charged, 
 
 serves, " If tlie lord has a rigM to one piece of waste land, it affords no infer- 
 ence, even the most remote, that he has a right to another, in the same manor, 
 although both may he similarly situated with respect to the highway ; assuming 
 that all were originally the property of the same person, as the lord of the 
 manor, which is all that the fact of their being in the same manor proves, no 
 presumption arises from his retaining one part in his hands, that he retained 
 another ; nor, if in one part of the manor the lord has dedicated a portion of 
 the waste to the use of the public, and granted out the adjoining land to 
 private individuals, does it by any means follow, nor does it raise any proba- 
 bility, that in. another part he may not have granted the whole out to private 
 individuals, and they afterwards have dedicated part as a public road. 
 But the case is very differi^nt with respect to those parcels, which from their 
 local situation may be deemed parts of one waste or common ; acts of owner- 
 ship in one part of the same field, are evidence of title to the whole ; and the 
 like may be said of similar acts on part of one large waste or common." — 
 pp. 107, 108. See, also, Tyrwhitt v. Wynne, 2 B. & A. 554 ; HoUis v. Gold- 
 finch, 1 B. & C. 218, 219, per Bayley, J. 
 
 ' Fost., C. L. 246. 
 
 2 E. V. Vanderoomb, 2 Lea. 708 ; 2 East, P. C. 519, S. C. 
 
CHAP. 11.] WHAT COLLATERAL PACTS ADMISSIBLE. 305 
 
 and that he has a tendency to perpetrate such crimes, cannot be 
 received;^ and, in treason, no overt act amounting to a distinct 
 independent charge, though falling under the same head of treason, 
 can be given in evidence, unless it be either expressly laid in the 
 indictment, or be direct proof of any of the overt acts which are 
 laid.^ Thus, on an indictment for adhering to the King's enemies 
 on the high sea, where the overt act laid was the prisoner's cruis- 
 ing on the King's subjects in a vessel called the Loyal Clencarty, 
 evidence that he had some time before cut away the custom-house 
 barge, and gone a cruising in her, was rejected.^ 
 
 § 327. But when felonies are so connected together as to form § 307 
 part of one entire transaction, evidence of one may be given to show 
 the character of the other.* Thus, where the lessee of a coal-mine 
 had run levels from his own shaft into his neighbours' naines, and 
 had, during a period of four years, been constantly extracting coal 
 belonging to thirty different proprietors, an indictment charging him 
 in one and the same count with steaUng the coal of each of these pro- 
 prietors was held to be valid ; and although the judge, in summing 
 up, advised the jury to confine their attention to one particular charge, 
 he refused to make the prosecutor elect on which case he would rely, 
 but allowed him to give evidence in support of all the charges, as at 
 least furnishing proof of a felonious intent.^ So, where a shopboy 
 was indicted for robbing his mistress of six shilHngs, and it was 
 proved that on one occasion, when the till contained some marked 
 silver and other money amounting in all to 12s. 6d., the prisoner 
 went to it, and it was afterwards found to contain lis. 6d. only, the 
 prosecutrix was allowed to show that, on subsequent examinations 
 
 1 E. V. Cole, 1 Ph. Ev. 477, by all the judges. 
 
 2 7 W. 3, c. 3, § 8, as explained in Fost., C. L. 245 ; citing Ambrose Eook- 
 wood's case, 13 How. St. Tr.'139 ; Lowick's case, id. 267 ; Layer's case, 16 id. 
 93 ; Deacon's case, 18 id. 365 ; Fost, C. L. 9, S. C. ; and Wedderbume's case, 
 18 id. 425 ; Fost., C. L. 22, S. C. 
 
 3 Vaughan's case, 13 How. St. Tr. 485 ; Fost., C. L. 246. 
 
 ■• K. V. Ellis, 6 B. & C. 147, 148, per Bayley, J. ; RoupeU v. Haws, 3 Fost. 
 & Fin. 784 ; E. v. Eearden, 4 Fost. & Fin. 76, per WiUes, J. 
 
 5 E. V. Bleasdale, 2 0. & Kir. 765, per Erie, J. See E. v. Fii'th, 38 L. J., 
 M. 0. 54, where the prisoner was indicted for stealing gas ; 11 Cox, 234, S. C. ; 
 E. V. Kenwood, 11 Cox, 526. 
 
 X 
 
306 WHAT COLLATBEAL FACTS ADMISSIBLE. [PAET 11. 
 
 of the till, the money was perceived to have gradually diminished, 
 and that, on the prisoner being searched, 8s. of the marked money 
 was found on his person ; for though each taking was a separate 
 felony, they were all so connected together as mutually to illustrate 
 and prove each other.^ 
 
 § 328. So, where four indictments were found against a woman, § 307 
 which respectively charged her with poisoning her husband and two 
 of her sons, and with attempting to poison a third son, evidence was 
 tendered on the trial of the first indictment, that arsenic had been 
 taken by the three sons a few months after their father's death ; 
 that all the four parties, when taken ill, exhibited the same symp- 
 toms ; and that the woman, who had lived in the same house with 
 her husband and children, had been in the habit of preparing their 
 meals. It was objected, on behalf of the prisoner, that the facts 
 proposed to be proved took place subsequently to the death of the 
 husband, and were, moreover, calculated to create a suspicion that 
 the prisoner had committed three other felonies ; but the court held 
 that the evidence was clearly admissible, for the purpose of proving, 
 first, that the husband died of arsenic, and next, that his death had 
 not been accidental.^ So, where a man committed three burglaries 
 in one night, and left at one of the houses property taken from an- 
 other, the three felonies were considered so connected, that the court 
 heard the history of them all;^ and the same course was adopted 
 where the prisoner was charged on three indictments with firing three 
 stacks belonging to separate parties, and it appeared that the stacks, 
 being within sight of each other, were fired about the same time.* 
 
 1 E. V. EUis, 6 B. & C. 145. 
 
 2 K. V. Geering, 18 L. J., M. C. 215, per Pollock, C. B., after consulting 
 Alderson, B., and Talfourd, J. ; R. v. Gamer, 3 Fost. & Fin. 681, per Willes, 
 J., & Pollock, C. B. ; S. C. more fiiUy reported, 4 Fost. & Fin. 346 ; R. v. 
 Cotton, 12 Cox, 400, per Axcliibald, J., & Pollock, B. ; R. v. Roden,id. 630, per 
 Lush, J. Bwt see R. v. Winslow, 8 Cox. 397, per Martin & Wilde, Bs. 
 
 3 Cited Ij Ld. EUenborougli in R. v. Wylie, 1 N. R. 94 ; 2 Lea. 985, S. C. ; 
 R. V. Stonyer, 2 Russ., C. & M. 775, per WigMman, J. See, also, Alison, Cr. 
 L. 313, 314, and Wills. Cir. Ev. 58—60, for remarkaMe cases of a similar nature 
 ■whioli occurred in Scotland. 
 
 ' R. V. Long, 6 C. & P. 179, per Guniey, B. ; B. v. Cobden, 3 Fost. & Fin. 
 833, per Bramwell, B. 
 
CHAP. II.] DOCTRINE OF ELECTION. 307 
 
 § 329. In immediate connexion with this subject, though not § 308 
 strictly a question of evidence, may be noticed the doctrine of elec- 
 tion. In point of law, no objection can be raised, either on demurrer 
 or in arrest of judgment, though the defendant or defendants be 
 charged in different counts of an indictment with different offences 
 of the same kind.^ Indeed, on the face of the record, every count 
 purports to be for a separate offence,^ and in misdemeanors it is the 
 daily practice to receive evidence of several Ubels, several assaults, 
 several acts of fraud, and the like, upon the same indictment.^ In 
 cases of felony, however, this rule has, from motives of humanity, 
 been considerably modified ; for, as an indictment containing several 
 distinct charges is calculated to embarrass a prisoner in his defence, 
 the judges, in the exercise of a sound discretion, are accustomed to 
 quash indictments so framed, when it appears, before the prisoner 
 has pleaded and the jury are charged, that the inquiry is to include 
 separate crimes. When this circumstance is discovered during the 
 progress of the trial, the prosecutor is usually called upon to elect 
 one felony, and to confine himself to that,* unless the offences, 
 though in law distinct, seem to constitute in fact but parts of one 
 continuous transaction. Here such a course will not be pursued, as 
 its adoption would defeat the ends of justice.^ 
 
 § 330. Thus, if a prisoner is charged with receiving several § 309 
 articles, knowing them to have been stolen, and it be proved that 
 they were received at separate times, the prosecutor may be put to 
 his election, but if it be possible that all the goods may have been 
 received at one time, he cannot be compelled to abandon any part 
 of the accusation.^ So, where several prisoners were charged in 
 
 ' R. V. Kingston, 8 East, 41 ; E. v. Jones, 2 Camp. 132, per Ld. Ellen- 
 liorough. As to election in civil cases, see Howard v. Newton, 2 M. & Rot. 
 509. 2 Young v. R., 3 T. R. 106, per BuUer, J. ; 1 Lea. 511, S. C. 
 
 ^ E. V. Jones, 2 Camp. 132, per Ld. Ellentorougli ; R. v. Levy, 2 Stark. R. 
 458. See, also, R. v. Finacane, 5 C. & P. 551 ; R, v. Collier, id. 160. But see 
 R. V. Barry, 4 Fost. & Fin. 392, per Martin, B. 
 
 ^ R. V. Ward, 10 Cox, 42, per Byles, J. That was an indictment with three 
 counts for sending three threatening letters. Held, that prosecutor must elect 
 to proceed on one count. 
 
 s Young V. R., 3 T. R. 106, per Buller, J. ; R. v. Levy, 2 Stark. R. 458 ; R. 
 V. Birdseye, 4 C. & P. 386. See, also. Anon., Ir. Cir. Rep. 165, 167, n. a. 
 
 « R. V. Dunn, 1 Moo. C. C. 146 ; R. v. Hinley, 2 M. & Rob. 524, per Maule, J. 
 
 X 2 
 
308 LIMITATION OP DOCTRINE OP ELECTION. [PART II. 
 
 different counts of the same indictment with committing successive 
 rapes upon the prosecutrix, and aiding each other in turn, she was 
 not put to her election, but the court heard the history of the whole 
 transaction ; ^ and a similar course was adopted, where an indict- 
 ment contained five counts for setting fire to five houses belonging 
 to different owners, and it appeared that the houses were in a row, 
 and that one fire burnt them all.^ So, where an indictment, in the 
 same count, charged four prisoners with assaulting and robbing 
 two persons, who, it appeared, were walking together at the time 
 when they were attacked. Chief Justice Tindal refused to put the 
 prosecutors to elect upon which felony they would rely, and evidence 
 being given as to the entire transaction, the prisoners were con- 
 victed.^ In another case the defendant was charged in a single 
 count with uttering tiventy-two forged receipts, which were severally 
 set out and purported to be signed by different persons, with intent 
 to defraud the Crown. His counsel contended that the prosecutor 
 ought to elect upon which of these receipts he would proceed, as, 
 amidst such a variety, it would be almost impossible for the prisoner 
 to conduct his defence. As, however, the indictment alleged that 
 they were all uttered at one and the same time, and the proof 
 corresponded with this allegation, the court refused to interfere, 
 and all the judges subsequently held that a proper discretion had 
 been exercised.* 
 
 § 331. In the case of embezzlement by clerks, servants, and per- § 310 
 sons employed in the public service, or in the police, the Legislature 
 has expressly provided that distinct acts, not exceeding three, may 
 be charged in one indictment, if they have been committed against 
 the same master, and within the period of six calendar months 
 from the first to the last of such acts;^ this exception being 
 suggested by the difiBculty which was felt in procuring a conviction, 
 
 1 K. V. Folkes, 1 Moo. 0. C. 354 ; R. v. Gray, 7 C. & P. 164 ; K. v. Parry, id. 
 836. 
 
 ' R. V. Trueman, 8 C. & P. 727. 
 
 ' R. V. Giddins, 0. & Marsli. 634. 
 
 '' R. V. Thomas, 2 Lea. 877 ; 2 East, P. C. 934, S. C. 
 
 » 24 & 25 v., c. 96, § 71. See R. ■;;. Balls, 40 L. J., M. C. 148 ; 1 Law Rep., 
 C. C. 328 ; & 12 Cox, 96, S. C. 
 
CHAP. II.] LIMITATION OF DOOTBINE OF ELECTION. 309 
 
 where the inquiry was confined to one ofi'ence. Still, if the prose- 
 cutor, disregarding the statute, indict his servant for a single act of 
 embezzlement, he must confine his evidence to that alone, and, if it 
 appear that the prisoner received different sums on different days, 
 and made a false account respecting each sum separately, he must 
 elect one sum and one day on which to proceed.^ 
 
 § 332. In the case of larceny the doctrine of election has been § 311 
 still further limited ; for not only may several counts be inserted in 
 the same indictment for distinct acts of steahng, not exceeding 
 three, which may have been committed by the prisoner against- the 
 same person within the space of six calendar months ; ^ but if, upon 
 the trial of any indictment for larceny, the property alleged to have 
 been stolen at one time shall turn out to have been taken at differ- 
 ent times, the prosecutor shall not be put to his election, unless it 
 shall appear that there were more than three takings, or that more 
 than the space of six calendar months elapsed between the first 
 and the last of such takings.* In either of these last events the 
 prosecutor shall be required to elect to proceed for such number of 
 takings, not exceeding three, as have occurred within six months of 
 each other.* 
 
 § 383. Another salutary exception to the rule of election is recog- § 312 
 nised with respect to receivers of stolen goods ; ^ and, provided the 
 inquiry relate to a single criminal act, one or more counts for 
 feloniously stealing property may now be always joined in the same 
 
 1 R. V. Williams, 6 C. & P. 626. 
 
 2 24 & 25 v., c. 96, § 5. ' Id. § 6. " Id. 
 
 5 24 & 25 v., c. 96, § 92, enacts that " in any indictment containing a charge 
 of feloniously stealing any property, it shall he lawful to add a count or several 
 counts for feloniously receiving the same, or any pait or parts thereof, knowing 
 the same to have been stolen ; and in any indictment for feloniously receiving 
 any property, knowing it to have been stolen, it shall be lawful to add a count 
 for feloniously stealing the same ; and where any such indictment shall have 
 been preferred and found against any person, the prosecutor shall not be put 
 to his election, but it shall be lawful for the jury who shall try the same to 
 find a verdict of guilty, either of stealiug the property, or of receiving the same, 
 or any part or parts thereof, knowing the same to have been stolen ; and if 
 such indictment shall have been preferred and found against two or more 
 persons, it shall be lawful for the jury, who shall try the same, to find all or 
 
310 COLLATEBAL PACTS WHEN ADMISSIBLE. [PAET II. 
 
 indictment with one or more counts, charging the felonious receipt 
 of the same property by the prisoner, he well knowing it to have 
 been stolen.^ 
 
 § 334. The time for putting the prosecutor to his election is, when § 313 
 it shall appear by the evidence that the two or more supposed occur- 
 rences took place at different periods, and it is not sufficient for this 
 purpose that the counsel for the Crown, in his opening address, has 
 stated that the fact was so, because the witnesses, on being examiaed, 
 may put the matter in a different light.^ 
 
 § 335. Upon the same principle, that collateral facts are only § 314 
 excluded, when they cannot raise any fair inference respecting the 
 matter in issue, evidence of other offences committed by the prisoner 
 is sometimes admitted, with the view either of estabUshing his 
 identity, or of corroborating the testimony of a witness in some 
 material particular. Thus, on an information for a Kbel, where the 
 printer swore that he had received the manuscript from the de- 
 fendant, and had returned it to him, and notice had been given to 
 the defendant to produce it, other libels written by him concerning 
 the same subject were received by Lord Kenyon, as evidence to cor- 
 roborate the statement of the printer.^ So, where the prisoner was 
 charged with robbing the prosecutor of a coat by threatening to 
 accuse him of an unnatural crime, evidence of a similar, but ineffec- 
 tual, attempt on the following evening, when the prisoner brought 
 the duplicate pawn-ticket for the coat, and which ticket was found 
 on his person at the time of his apprehension, was held admissible, 
 as confirmatory of the truth of the prosecutor's evidence respecting 
 what occurred on the former day.* So, on a charge of highway 
 robbery, the prosecutor was allowed to rebut an alibi, by proving 
 
 any of tlie said persons guilty, either of stealing the property, or of receiving 
 tlie same, or any part or parts thereof, knowing the same to have heen stolen, 
 or to find one or more of the said persons guilty of stealing the property, and 
 the other or others of them guilty of receiving the same, or any part or parts 
 thereof, knowing the same to have heen stolen." 
 
 ' E. V. Beeton, 1 Den. 414 ; 2 0. & Kir. 960, S. C. See R. v. Hughes, 29 
 L. J., M. C. 71. ' E. V. Smart, Jr. Cir. Eep. 15, per Bushe, C. J. 
 
 3 E. V. Pearce, Pea. E. 75. 
 
 « R. V. Egerton, R. & E. 375, cited by Holroyd, J., in E. v. EUis, 6 B. & C. 148. 
 
CHAP. II.] COLLATERAL PACTS WHEN ADMISSIBLE. 311 
 
 that, shortly before the attack made upon him, and near the same 
 spot, the prisoner had robbed another person ; ^ and even had no 
 such defence been set up, similar evidence would, it seems, have 
 been admissible, as showing at least that the prisoner was in the 
 neighbourhood at the time when the crime was committed.^ 
 
 § 336. In civil causes, too, evidence of collateral facts is some- § 315 
 times received for the purpose of confirming the testimony of wit- 
 nesses. For instance, where a party was sued on a bill of exchange, 
 which had been accepted in his name by another person, and evidence 
 had been given that this person had a general authoiity from the 
 defendant to accept bills in his name, the court held that an admis- 
 sion by the defendant of his liability on another bill so accepted, 
 was receivable in evidence, in order to confirm the witness who had 
 spoken to the general authority.^ 
 
 § 337. Another exception to the rule excluding evidence of coUa- § 316 
 teral facts is recognised, where the question is a matter of science, and 
 where the facts proved, though not directly in issue, tend to illus- 
 trate the opinions of scientific witnesses. Thus, where the point in 
 dispute was, whether a sea-wall had caused the choking up of a har- 
 bour, and engineers were called to give their opinions as to the effect 
 of the wall, proof that other harbours on the same coast, where there 
 were no embankments, had begun to be choked about the same time 
 as the harbour in question, was admitted, as such evidence served to 
 elucidate the reasoning of the skilled witnesses.* 
 
 § 338. In some cases evidence has been received of facts which § 3i7 
 happened before or after the principal transaction, and which had 
 no direct or apparent connexion with it ; and, consequently, their 
 admission might seem, at first view, to constitute another exception 
 
 > K. V. Briggs, 2 M. & Eob. 199, per Alderson, B. 
 
 2 K. V. Eooney, 7 C. & P. 517, per Littledale, J. See, also, R. v. Fmsey, 6 
 C. & P. 81, per Parke & Gaselee, Js. 
 
 3 Llewellyn v. Winokworth, 13 M. & W. 598. See HoUingliam v. Head, 
 27 L. J., C. P. 241 ; 4 Com. B., N. S. 388, S. C. ; Morris v. BetheU, 4 Law 
 Eep., C. P. 765 ; 38 L. J., C. P. 377, S. C. ; 5 Law Eep., C. P. 47, S. C. 
 
 * Folkes V. Chadd, 3 Doug. 157 ; M'Fadden v. Murdock, L E., 1 C. L. 211. 
 
312 COLLATERAL FACTS WHEN ADMISS3LB, [PAET II. 
 
 to this rule. But in these cases, the knowledge, or good faith, or 
 intent of the party was a material fact, on which the evidence, ap- 
 parently collateral, and foreign to the main subject, had a direct 
 bearing. The admission, therefore, of such evidence, instead of 
 being an exception to the rule, falls strictly within it. Thus, where 
 the question was, whether the acceptor of a bill of exchange either 
 knew that the name of the payee was fictitious, or else had given to 
 the drawer a general authority to draw bills on him payable to ficti- 
 tious persons, evidence was admitted to show that he had accepted 
 other bills, drawn in like manner, before it was possible to have 
 transmitted them from the place at which they bore date.^ So, in 
 an action for an assault and consequent injury, where evidence for 
 the defence was given that the plaintiff had ascribed her injury to a 
 previous accident, she was allowed to show that in fact no such 
 accident had ever occurred.^ So, on any trial, evidence will be 
 admissible to prove or disprove any attempt at subornation of 
 witnesses.^ 
 
 § 339. So, in an action for fraudulently representing that a trader § 317 
 was trustworthy, whereby the plaintiff was induced to sell him goods, 
 and thus lost the price of them, the court permitted the defendant 
 to call fellow- townsmen of the trader to state, that, at the time when 
 the representation was made, the man was, according to their beUef, 
 in good credit.* So, in an action for work and labour in fixing 
 railings to certain houses belonging to the defendant, where the 
 defence was that the plaintiff had given credit to a third person by 
 whom the houses were built under a contract, the builder was 
 allowed to state that the order was given by him on his own account, 
 and not as agent for the defendant; and that the defendant had 
 actually paid him for the building of the houses, including the 
 charge for the railings. This evidence of payment was objected to, 
 but the court held that it was clearly admissible, as tending to show 
 the bona fides of the defence.^ In another case, where a plaintiff 
 
 1 Gibson v. Hunter, 2 H. Bl. 288. 
 
 2 Melhuish v. Collier, 15 Q. B. 878. s i^_ 
 
 * Sheen v. Bumpstead, 1 H. & 0. 358 ; afifd. in Ex. Ch., 2 New R. 370 ; 
 2 H. & C. 193 ; 32 L. J., Ex. 271, S. C. 
 ' Gerish v, Cbartier, 1 Com, B. 13. 
 
CHAP. II,] COLLATERAL FACTS WHEN ADMISSIBLE. 313 
 
 sought to set aside a contract on the ground of his having been 
 insane when it was made, the court held, upon an issue as to whether 
 or not the defendant was at the time aware of the insanity, that 
 evidence of the plaintiff's conduct, at different times both before and 
 after the date of the contract, was admissible, for the purpose of 
 showing that the madness was of such a character as must have 
 been apparent to any one, who had had opportunities of observation 
 like those afforded to the defendant.^ 
 
 § 340. Again, in actions for false representation, where the ques- § 318 
 tion turns on frauMent intent, other mis-statements besides those 
 laid in the statement of claim will be admissible in evidence, for the 
 purpose of showing that the defendant was actuated by dishonest 
 motives.^ So, in the Divorce Division, in a suit for dissolution 
 of marriage, evidence of acts of adultery, subsequent to the date of 
 the latest act charged in the petition, will be admissible, for the 
 purpose of showing the character of previous acts of improper fami- 
 liarity.^ So, in actions for malicious arrest, the jury are always at 
 liberty to draw an inference of malice ex antecedentibus et conse- 
 quentibus.* In actions, too, for defamation, other words written 
 or spoken by the defendant either before,^ or after those declared 
 upon, or even after issue joined,^ are admissible as evidence of 
 
 > Beavan v. M'Donnell, 23 L. J., Ex. 326 ; 10 Ex. B. 184, S. C. 
 
 ^ Htmtingforcl v. Massey, 1 Eost. & Fin. 690, per Crompton, J. 
 
 3 Boddy V. Boddy, 30 L. J., Pr. & Mat. 23. 
 
 * Spencer v. Thompson, 6 Ir. Law E., N. S. 537, 571. 
 
 ° Long D. Barrett, 7 Ir. Law R. 439; Barrett v. Long, 8 Ir. Law R. 331; 
 3 H. of L. Cas. 395, S. C. as affd. in Ex. Cli. and Dom. Proc. That was an 
 action of lihel, to which the defendant pleaded not guilty, and a special plea 
 framed on § 2 of 6 & 7 V., c. 96. The plaintiff, to show the animus of 
 the defendant, tendered in evidence other libels puhlished by him against the 
 plaintiff six years before, and the court held that they were admissible, the 
 jury having been cautioned not to give damages respecting them. Moreover, 
 the omission to give such caution will not amount to misdirection. Darby v. 
 Ouseley, 1 H. & N. 1. • 
 
 6 Pearson v. Le Maitre, 6 Scott, N. R. 607 ; 5 M. & Gr. 700, S. C. In that 
 case a letter was admitted, written subsequently to the commencement of the 
 action, and fourteen months after the Ubel complained of. See, also, Macleod 
 V. Wa]dey,3 C. & P. 311, where the paragraph admitted by Ld. Tenterden was 
 published only two days before the trial ; and Plunkett v. Cobbett, 5 Esp. 136 
 where, the defendant being the editor of a weekly periodical, proof that a copy 
 
314 COLLATERAL FACTS WHEN ADMISSIBLE. [PAET II. 
 
 actual malice or of deliberate publication;^ and for this purpose 
 it makes in general no difference, whether the language on which 
 the action is founded he equivocal or clear,^ — whether the col- 
 lateral words tendered in evidence he addressed to the same party, 
 to whom the slander is alleged in the statement of claim to have 
 been spoken, or to a stranger,^ — or whether those words be them- 
 selves actionable or not.* 
 
 § 341. The case of Warwick v. Foulkes ^ will illustrate this doc- § 318 
 trine. That was an action of trespass for false imprisonment, to 
 which the defendant pleaded first, not guilty, and secondly, a justi- 
 fication, alleging that the plaintifi' had committed a felony. This 
 
 of the paper containing the libel was sold after action brought, was admitted 
 by Ld. EUenboroTigh as evidence of deliberate publication. 
 
 > Pearson v. Le Maitre, 6 Scott, N. E. 607 ; 5 M. & Gr. 700, S. C ; Bamrell 
 V. AdMns, 1 M. & Gr. 807 ; 2 Scott, N. E. 11, S. C ; Perkins v. Vaughan, 
 4 M. & Gr. 988 ; Henunings v. Gasson, 1 E. B. & E. 346 ; Rustell v. Mac- 
 quister, 1 Camp. 49, n., per Ld. EUenboroiigh ; Charlter v. Barret, Pea. E. 22, 
 per Ld. Kenyon ; Lee v. Huson, id. 166, per id. ; Scott v. Ld. Oxford, id. 3rd 
 ed. 170, n. a, per Lawrence, J. ; B. N. P. 7 ; Delegal v. Highley, 8 C. & P. 444, 
 per Tindal, C. J. ; Jackson v. Adams, 2 Scott, 599. 
 
 2 See n. 4, below. 
 
 3 Pearson v. Le Maitre, 6 Scott, N. E. 607 ; 5 M. & Gr. 700, S. 0. ; Mead v. 
 Danbigny, Pea. E. 125, per Ld. Kenyon. 
 
 « Pearson v. Le Maitre, 6 Scott, N. E. 607 ; 5 M. & Gr. 700, S. C. ; question- 
 ing Pearce v. Omsby, 1 M. & Eob. 455, and Symmons v. Blake, id. 477. 
 Tiadal, C. J., in pronouncing the judgment of the court, states the correct rule 
 to be, " That either party may, with a view to damages, give evidence to prove 
 or disprove the existence of a malicious motive in the mind of the publisher of 
 defamatory matter ; but that, if the evidence given for that purpose establishes 
 another cause of action, the jury shall be cautioned against giving any damages 
 in respect of it ; and if such evidence is offered merely for the purpose of 
 obtaining damages for such subsequent injury, it will be properly rejected. 
 And perhaps the cases of Pearce v. Ornsby and Symmons v. Blake went no 
 farther than this. * * Upon priaciple, we think, that the spirit and inten- 
 tion of the party publishing a libel are fit to be considered by a jury, in esti- 
 mating the injury done to the plaintiff, and that evidence tending to prove 
 them cannot be excluded, simply because it may disclose another and different 
 cause of action." 5 M. & Gr. 719, 720. See, also, Eustell v. Macquister 
 1 Camp. 49, n., where Ld. EUenborough remarked, that the distinction 
 between words actionable and not actionable was not founded on any prin- 
 ciple ; and Camfield v. Bird, 3 C. & Kir. 56, per Jervis, C. J. 
 M2 M. & W. 507. 
 
CHAP. 11.] COLLATEEAL FACTS WHEN ADMISSIBLE. 315 
 
 last plea was abandoned and apologised for at the trial ; but the 
 court held that, in estimating the damages under the first issue, the 
 jury might take into account the fact of a justification haying been 
 pleaded, because the placing such a plea on the record was a per- 
 sisting in the charge, which, under the circumstances, was strong 
 evidence of malice. So, where on the trial of an action for slander, 
 to which the general issue and a justification were pleaded, the 
 plaintiff expressed his wilUngness to accept an apology and nominal 
 damages if the plea of justification were withdrawn, but the defen- 
 dant refused to abandon this plea, though he offered no evidence in 
 support of its truth, the court held that the jury might consider 
 the defendant's conduct, not only with reference to the question of 
 damages, but as furnishing evidence of express mahce, and thus 
 rendering the words proved actionable, though they were prima 
 facie privileged communications.-' 
 
 § 342. If, however, to an action for a libel, the defendant were to § 319 
 set up as his defence a privileged communication and a justification, 
 the jury, in forming an opinion, under the first issue, should not, 
 as it seems, take into consideration the circumstance that the justi- 
 fication had been pleaded, provided that such defence were openly 
 abandoned at the trial.^ So, if it clearly appear that other Hbels 
 are offered in evidence, merely with the view of unfairly recovering 
 damages for the injury sustained by their publication, they will 
 properly be rejected ; ^ and it seems that no subsequent libels will 
 be admitted, unless they directly refer, to the defamatory language 
 set out in the statement of claim, or at least relate to the same 
 subject-matter.* 
 
 § 343. Not only is other defamatory matter admissible for the § 320 
 purpose of showing the animus of the defendant, but the mode 
 in which such matter was pubHshed may also be highly material ; 
 
 1 Simpson v. EolDinson, 12 Q. B. 511. 
 
 2 Wilson V. EoMnson, 7 Q. B. 68. 
 
 8 See cases cited, ante, in n. 4, p. 314 ; Stuart v. Lovell, 2 Stark. E. 95 ; 
 n^es V. Davis, 7 & P. 112. 
 ■* Finnerty v. Tipper, 2 Camp. 72, per Sir J. Mansfield. 
 
316 COLLATEBAL FACTS WHEN ADMISSIBLE. [PAET II. 
 
 as, for instance, if printed placards were sent to the plaintiff's house, 
 or paraded before his door.^ 
 
 § 344. On the same principle the defendant, in mitigation of § 321 
 damages, has been allowed to giye evidence palKating, though not 
 justifying, his act of publishing a libel, as, for instance, that he 
 copied it from another newspaper,^ or that he had been provoked to 
 act as he had done by the conduct of the plaintiff, who had previously 
 pubUshed libels of him respecting the same subject-matter. But in 
 this last case some proof must be given that the libels published by 
 the plaintiff had first come to the knowledge of the defendant,* 
 since they are admissible, not on the ground of any right to 
 set off one libel against another,* but simply from an indulgent 
 consideration of the weakness of human nature, which leads a 
 man, when his feelings are exasperated, to say " that he should 
 be sorry for." 
 
 § 345. Evidence of this kind is very frequently admitted in § 322 
 criminal proceedings. Thus, on an indictment for knowingly 
 uttering a forged document, or a counterfeit bank note, or 
 
 1 Bond V. Douglas, 7 C. & P. 626, per Ld. Aljinger. 
 
 2 Saunders v. Mills, 6 Bing. 213, cited by Tindal, C. J., in Pearson v. Le 
 Maitre, 5 M. & Gr. 719. In Talbutt v. Clark, 2 M. & Eob. 312, Ld. Denman 
 would not permit the editor of a newspaper to show, in mitigation of damages, 
 that the libel was published on the communication of a correspondent ; and 
 referring to a case in the Common Pleas, which was probably Saunders v. 
 Mills, his Lordship observed, that " that decision had been very much ques- 
 tioned." However, by the recognition of Saunders v. MiUs in Pearson v. Le 
 Maitre, the case of Talbutt v. Clark would seem to be indirectly overruled. 
 See, also, East v. Chapman, M. & M. 46 ; 2 C. & P. 570, S. C, per Abbott, 
 C. J. ; Charlton v. Watson, 6 C. & P. 385, per Patteson, J. ; Oreevy v. Carr, 
 7 C. & P. 64. 
 
 3 "Watts V. Fraser, 7 A. & E. 223 ; 7 C. & P. 369, S. C. ; Tarpley v. Blabey, 
 
 2 Bing. N. C. 437 ; 2 Scott, 642 ; 7 C. & P. 395, S. C. ; May v. Brown, 
 
 3 B. & C. 113 ; 4 D. & E. 670, S. C. ; Wakley v. Johnson, Ry. & M. 422 ; 
 Finnerty v. Tipper, 2 Camp. 72. See Richards v. Richards, 2 M. & Rob. 557. 
 
 " Watts 0. Fraser, 7 C. & P. 370, per Ld. Denman. In Judge v. Berkeley, 
 cited id. 371, n. a, Burrough, J., allowed the defendant, in an action of assault, 
 to prove, in mitigation of damages, a series of libellous ajtioles published 
 respecting him by the plaintiff, one of which appeared on the day of the 
 assault. 
 
CHAP. II.] COLLATERAL FACTS WHEN ABMISSIBLE. 317 
 
 counterfeit coin, proof of the possession, or of the prior or sub- 
 sequent^ utterance, either to the prosecutor himself or to other 
 persons, of other false documents or notes, or bad money, though 
 of a different description,^ and though themselyes the subjects of 
 separate indictments,' is admissible as material to the question of 
 guilty knowledge or intent ; * but in these cases it is essential to 
 proYO distinctly that the instruments offered in evidence of guilty 
 knowledge were themselves forged.' It seems also, that though 
 the prosecutor may prove the uttering of other forged notes by 
 the prisoner, and his conduct at the time of uttering them, he 
 cannot proceed to show what the prisoner said or did at another 
 time, with respect to such uttering ; for these are collateral facts, 
 too remote for any reasonable presumption of guilt to be founded 
 upon them, and such as the prisoner cannot by any possibility be 
 prepared to contradict.® 
 
 § 346. This laxity of evidence, which has long prevailed in § 323 
 charges of uttering, and of one or two offences of a cognate 
 
 ' R. V. Forster, Pearce & D. 456. This case disposes of a doubt raised in 
 R. V. Tavemer, Carr. Supp. 195 ; 4 C. & P. 413, n. a, S. C. ; and in R. v. Smith, 
 4 C. & P. 411 ; as to whether evidence of subsequent utterings -would be admis- 
 sible, if the notes or coin were of a different description. 
 
 ' R. V. Harris, 7 C. & P. 429, by aU the judges ; R. v. Forster, Pearce & D. 
 456. Doubts had been entertained on this subject by some of the judges, in 
 R. V. Millard, R. & R. 245, but the evidence v^as admitted in Sunderland's, 
 Hodgson's, Kirkwood's, and Martin's cases, 1 Lew. C. C. 102 — 104. The same 
 evidence is admissible in Scotland ; Alison, Cr. L. 420. 
 
 ' R. v. Hough, R. & R. 122 ; R. v. Weeks, 8 Cox, 455 ; Kirkwood's case, 1 
 Lew. C. C. 103, per Littledale, J. ; Martin's case, id. 104, per id. ; R. v. Aston, 
 2 Russ. 0. & M. 407, per Alderson, B. ; R. v. Lewis, id., per Ld. Dernnan, who 
 observed, that " he could not conceive that the relevancy of the fact to the 
 charge could be effected by its being the subject of another charge." Contri, 
 R. V. Smith, 2 C. &. P. 633, per Vaughan, B. 
 
 * R. V. WyUe, 1 N. R. 92, 94 ; 2 Lea. 983, S. C, nom. R. v. WhUey ; R. v. 
 Ball, 1 Camp. 324 ; R. & R. 132, S. C. ; R. v. Harrison, 2 Lew. 0. C. 118, per 
 Taunton, J., and Alderson, B. ; R. v. Green, 3 C. & Kir. 209, per Cresswell, J.; 
 R. V. Nisbett, 6 Cox, 320, per Williams, J. ; R. v. Salt, 3 Fost. & Fin. 834, per 
 Williams, J. * R. v. MiUard, R. & R. 245. 
 
 « R. V. PhiUips, 1 Lew. C. C. 105, per Bayley, J. ; R. v. Cooke, 8 C. & P. 586, 
 per Patteson, J. ContrS,, R. ■». Forbes, 7 C. & P. 224, per Coleridge, J. See 
 R. V. Brown, 2 Fost. & Fin. 559. 
 
318 COLLATERAL PACTS WHEN ADMISSIBLE. [PAET II. 
 
 character,^ has recently, with respect to the receivers of stolen 
 goods, been expressly sanctioned by the Legislature. Thus, 
 " The Prevention of Crimes Act, 1871,"^ in § 19, contains an 
 enactment that, " where proceedings are taken against any person 
 for having received goods knowing them to be stolen, or for having 
 in his possession stolen property, evidence may be given at any 
 stage of the proceedings that there was found in the possession of 
 such person other property stolen within the preceding period of 
 twelve months, and such evidence may be taken into consideration 
 for the purpose of proving that such person knew the property to 
 be stolen, which forms the subject of the proceedings taken against 
 him." 
 
 § 347. Notwithstanding the above enactment, and perhaps, even, § 323a 
 in consequence of it, the judges may still decline to recognise 
 the doctrine under discussion in ordinary criminal trials.^ Thus 
 much, however, may be safely predicated, that, on a charge of send- 
 ing a threatening letter, other letters written by the prisoner, both 
 before and after the one in question, are admissible to explain its 
 meaning ; * on an indictment for malicious shooting, if it be doubtful 
 whether the shot was fired by accident or design, proof may be given 
 that the prisoner at another time intentionally shot at the same 
 person ; ^ and in indictments for murder, while evidence of former 
 menaces or quarrels will have an important tendency towards sup- 
 
 1 E. g. the obtaining money hy falsely pretending to a pawnbroker that a 
 spurious chain was silver ; E. v. Eoebuck, Dear. & Bell, 24, 26 ; E. v. Francis, 
 43 L. J., M. C. 97 ; 2 Law Eep., C. C. 128 ; 12 Cox, 612, S. C. The doctrine, 
 however, does not extend to ordinary indictments for false pretences ; E. v. 
 Holt, 30 L. J., M. 0. 11 ; BeU, C. C. 280, S. C. ; 8 Cox, 411, S. 0. Still, it 
 has been applied to cases of arson with intent to defraud insurance companies ; 
 E. V. Gray, 4 Post. & Fin. 1102, per Willes, J., & Martin, B. ; sed qu. 
 
 2 34 & 35 v., c. 112. 
 
 ^ See and compare E. v. Faiiie, 8 E. & B. 486 ; E. v. Winslow, 8 Cox, 397 ; 
 E. V. Geering, 18 L. J., M. C. 215, cited ante, § 327 ; E. o. Oddy, 2 Den. 264 ; 
 E. V. Sixrell, cited in id. 267 ; E. v. Dunn, 1 Moo. C. C. 146 ; E. v. Nioholls 1 
 Fost. & Fin. 51. " E. v. Eobinson, 2 East, P. C. 1110, 1112. 
 
 " E. V. Yoke, E. & E. 531. For other examples, see E. v. Mogg, 4 C. & P. 
 364 ; E. V. Dossett, 2 C. & Kir. 306, per Maule, J. ; E. v. Eichardson, 2 Fost. 
 & Fin. 343 ; 8 Cox, 448, S. C. ; E. v. Harris, 4 Fost. & Fin. 342. See, also, 
 ante, §§ 327, 328. 
 
CHAP. II.] EVIDENCE OF GENERAL CHARACTER. 319 
 
 porting the legal inference of malice,^ proof of expressions of kind- 
 ness or of friendly acts towards the deceased will be entitled to 
 equal weight as raising a counter presumption.^ 
 
 § 348. In like manner, on an indictment for a robbery, where § 324 
 it appeared that the prisoners had formed part of a mob, who 
 went to the prosecutor's house, and that one of the mob had 
 civilly advised him to give them something to prevent mischief, 
 evidence that this mob, in the presence of some of the prisoners, 
 had demanded money at other houses on the same day, was 
 admitted, as tending to prove that the advice was not given bona 
 fide, but was in reality a polite mode of committiag a robbery.^ 
 This last case differs from those just cited in one respect, 
 namely, that the acts given in evidence were not committed by the 
 prisoners themselves, but only by some of the mob with whom they 
 were connected. The principle, however, is the same ; for the law 
 has wisely provided, that where several evil-doers conspire together 
 to effect some unlawful purpose, the acts done by one of the party 
 in furtherance of the common design shall be considered as done 
 by all.* 
 
 § 349. To this rule may be referred the admissibility of evidence § 325 
 respecting the general character of individuals. Such evidence is 
 tendered for the purpose either of raising & presumption of innocence 
 or guilt, or of affecting the amount of damages, or of impeaching or 
 supporting the veracity of a witness ; ^ the first object being chiefly 
 confined to criminal prosecutions, and the second to civil causes, 
 while the third is equally applicable to both modes of procedure. 
 
 § 350. The term "character," as here used, is not, — as some of §325a 
 our ablest judges have considered it to be,^ — synonymous with 
 
 1 See K. •». Hagan, 12 Cox, 357. 
 
 ' 1 Ph. Ev. 470, 476. 
 
 3 E. v. Winkwortli, 4 C. & P. 444, per Parke, J., with the concurrence of Ld. 
 Tenterden, Alderson, J., and Vaughan, B. 
 
 ■• R. V. Watson, 32 How. St. Tr. 7 ; E. u Hardy, 24 id. 704 ; E. v. Salter, 5 
 Esp. 125 ; E. ■». Hunt, 3 B. & A. 566. s 2 St. Ev. 303. 
 
 .5 E. «. Eowton, 34 L. J., M. 0. 57 ; L. & Cave, 520 ; 10 Cox, 25, S. C, per 
 Erie, C. J., & WiUes, J. 
 
320 EVIDENCE OP GENERAL CHAEACTEE. [PART II. 
 
 " disposition," but it simply means " reputation," or the general 
 credit which a man has obtained in public opinion.^ A witness, 
 therefore, who is called to speak to character, — unlike a master who 
 is asked for the character of his servant, — cannot give the result 
 of his own personal experience and observation, or express his 
 own opinion, but, in strict law, he must confine himself to evidence 
 of mere general repute.^ This rule, — which appears to rest rather 
 on authority than on reason, — would probably have been rejected 
 long ago by the courts, had it not been for two causes. First, the 
 rule, in practice, is seldom strictly enforced ; and, next, it has to a 
 certain extent been modified by the judges. Aware that " the best 
 character is generally that which is the least talked about," ^ they 
 have found it necessary to permit witnesses to give negative 
 evidence on the subject, and to state that " they never heard any- 
 thing against the character of the person on whose behalf they 
 have been called."* Nay, some of the judges have gone so far as 
 to assert that evidence in this negative form is the most cogent 
 proof of a man's good reputation.^ 
 
 § 351. When the point at issue is whether the accused has x 326 
 committed a particular criminal act, evidence of his general 
 good character is obviously entitled to little weight, unless some 
 reasonable doubt exists as to his guilt ; and, therefore, in this 
 event alone will the jury be advised to act upon such evidence.^ 
 The inquiry, too, must be confined, — except where the intention 
 forms a material ingredient in the ofl'ence,''' — to the general 
 character of the prisoner, and must not condescend to particular 
 facts ; ^ for although the common reputation, in which a person is 
 
 1 K. V. Eowton, 34 L. J., M. C. 57 ; L. & Cave, 520 ; 10 Cox, 25, S. C, per 
 Cur., Erie, C. J., & Willes, J., diss. 2 i^i ggg p^g^^ ^ j47q_ 
 
 3 Per Erie, C. J., 34 L. J., M. C. 63 ; L. & Cave, 535 ; 10 Cox, 33, S. C. 
 
 * Per Cockburn, C. J., 34 L. J., M. C. 64 ; L. & Cave, 53C ; 10 Cox, 34, 
 S. C. s Id. 
 
 " In R. V. Turner, 6 How. St. Tr. 613, Hyde, C. J., observed to the jury :— 
 " The witnesses called in point of reputation I must leave to you. Few men 
 that come to be questioned but shall have some come and say, ' he is a very 
 honest man ; I never knew any hurt by him ; ' but is this anything against 
 the evidence of tlie fact ?" 7 Ante, § 345. 
 
 * J'Anson v. Stuart, 1 T. E. 754, per Buller, J. In former times the prac- 
 tice was less strict. See E. v. Turner, 6 How. St. Tr. 606, 607. 
 
CHAP. II.] KVIDENCE OF GENERAL CHARACTEE. 821 
 
 held in society, may be undeserved, and tlie evidence in support 
 of it must, from its very nature, be indefinite, some inference, 
 varying in degree according to circumstances, may still fairly be 
 drawn from it ; since it is not probable that a man, who has 
 uniformly sustained a character for honesty or humanity, wiU 
 forfeit that character by the commission of a dishonest or a cruel 
 act. But the mere proof of isolated facts can afford no such pre- 
 sumption. "None are all evil," and the most consummate villain 
 may be able to prove, that on some occasions he has acted with 
 humanity, fairness, or honour. In all cases, too, when evidence 
 is admitted touching the general character of the party, it ought 
 manifestly to bear reference to the nature of the charge against 
 him ;i as, for instance, if he be accused of theft, that he has been 
 reputed an honest man ; — if of treason, a man of loyalty. It 
 should also relate to the same period as the supposed offence ; 
 for, as Lord Holt once remarked, "A man is not born a knave ; 
 there must be time to make him so, nor is he presently discovered 
 after he becomes one."^ Subject to these observations, evidence of 
 the defendant's general good character is admissible in all prosecu- 
 tions whether for felony or misdemeanor.^ 
 
 § 352. Although the defendant, from motives of humanity, is § 327 
 allowed this reasonable indulgence, the prosecutor cannot, in the 
 first instance, have recourse to the same loose testimony, for the 
 purpose of establishing the guilt of the accused ; * but if, with the 
 view of raising a presumption of innocence, witnesses to character 
 are called for the defence, the counsel for the Crown may then 
 rebut this presumption, by cross-examining the witnesses, either 
 as to particular facts, ^ or, if they deem it essential, as to the 
 
 ' Douglass V. Tousey, 2 Wend. 352. 
 
 2 E. V. Swendsen, 14 How. St. Tr. 596. ^ 2 Euss. C. & M. 784. 
 
 " E. V. Tuberfield, 34 L. J., M. 0. 20 ; L. & Cave, 495 ; 10 Cox, 1, S. C. 
 In that case the question was put, not to prove the guilt of the prisoner, hut to 
 show that the witness, a policeman, had had probable cavise for arresting him. 
 Held, nevertheless, that the answer was not evidence. 
 
 ' E. V. Hodgkiss, 7 C. & P. 298. In E. v. Wood, 5 Jur. 225, Parke, B., 
 allowed a witness to character to be asked, in cross-examination, whether he 
 had not heard that the prisoner was suspected of having committed a robbery- 
 some years before. See, also, E. v. Turner, 6 How. St. Tr. 607. 
 
 Y 
 
322 EVIDENCE OP PREVIOUS CONVICTION. [PAET II. 
 
 grounds of their belief.^ Evidence of general bad character will 
 also in such case be admissible,^ though it . is seldom resorted to 
 in practice.^ In most trials for felony, and in some for misde- 
 meanor, if the defendant endeavours to establish a good character, 
 either by calling witnesses himself, or by cross-examining the 
 witnesses for the prosecution,* the prosecutor is at liberty, in 
 answer thereto, to give proof of the prisoner's previous conviction ; 
 but the statutes, which allow this course to be adopted, have 
 strangely omitted all mention o^ capital felonies, and apply only 
 partially to misdemeanors.^ 
 
 § 353. Receivers of stolen goods nave recently been subjected § 327a 
 to a pecuhar law, which, though probably salutary, is somewhat 
 at variance with the humane doctrine illustrated in the last 
 section. Thus, "The Prevention of Crimes Act, 1871,"^ enacts, 
 in § 19, that " where proceedings are taken against any person for 
 having received goods knowing them to be stolen, or for having in 
 
 1 2 St. Ev. 304. 
 
 2 E. 1). Rowton, 34 L. J., M C. 57 ; L. & Cave, 520 ; 10 Cox, 25, S. C. ; by 
 all the judges, overrulir.g R. v Burt, 5 Cox, 284. 
 
 3 2 St. Ev. 304. 
 
 * R. V. Shrimpton, 2 Den. 319 3 C. & Kir. 373, S. C. ; R. v. Gadbury, 
 8 C. & P. 676, per Parke, B. 
 
 5 6 & 7 W. 4, c. Ill, after reciting that, by the Act of 7 & 8 G. 4, c. 28 
 " provision is made for the more exemplary punishment of offenders, who shall 
 commit any felony not punishahle with death, after a previous conviction for 
 felony,' provides, among other things, that, " if, upon the trial of any person 
 for any such subsequent felony as aforesaid, such person shall give evidence of 
 his or her good character, it shall be lawful for the prosecutor, in answer 
 thereto, to give evidence of the indictment and conviction of such person for 
 the previous felony, before such verdict of guilty shall have been returned, 
 and the jury shall inquire concerning such previous conviction for felony 
 at the same time that they inquire concerning the subsequent felony." 
 The Larceny Act of 1861 contains a somewhat similar provision -w-ith respect 
 to offences punishable under that Act ; 24 & 25 V., c. 96, § 116. So does the 
 Act of 1861, relaljng to offences against the coin ; 24 & 25 V., c. 99, § 37. See 
 R. 11. Martin, 1 Law Rep., C. C. 214 ; 11 Cox, 343, S. C. So does "The Pre- 
 vention of Crimes Act, 1871," with respect to any "crime as defined" by that 
 Act, that is, " any felony, or the offence of uttering false or counterfeit coin, or 
 of possessing counterfeit gold or silver coin, or the offence of obtaining goods 
 or money by false pretences, or the offence of conspiracy to defraud, or" any 
 misdemeanor under 24 & 25 V., c. 96, § 58." See 34 & 35 V , c 112 SS 9 20 
 
 " 34&35 v., c. 112. ' SS , • 
 
CHAP. II.] EVIDENCE OF CHAEACTER WHEN ADMISSIBLE. 323 
 
 his possession stolen property, and evidence lias been given that 
 the stolen property has been found in his possession, then if such 
 person has within five years immediately preceding been convicted 
 of any offence involving fraud or dishonesty, evidence of such 
 previous conviction may be given at any stage of the proceedings, 
 and may be taken into consideration for the purpose of proving 
 that the person accused knew the property which was proved to 
 be in his possession to have been stolen ; provided that not less 
 than seven days' notice in writing shall have been given to the 
 person accused that proof is intended to be given of such previous 
 conviction ; and it shall not be necessary for the purposes of this 
 section to charge in the indictment the previous conviction of the 
 person so accused."^ 
 
 § 354. As evidence of general character can, at best, afford § 328 
 only a glimmering light, when the question is whether a party 
 has done a certain act or not, its admission for such a purpose 
 is exclusively confined to criminal proceedings, in which it was 
 originally received, some two centuries ago,^ in favorem vits ; 
 and so strict is this rule, that even upon an information filed 
 in the Exchequer by the Attorney- General, with the view of 
 recovering penalties from the defendant, for keeping false weights, 
 and for offering to corrupt an officer, such evidence was rejected, 
 because proceedings of this kind, though brought in the name 
 of the Sovereign, are considered as civil suits, the Court of 
 Exchequer having no criminal jurisdiction.^ So, in an action 
 of ejectment brought by the heir-at-law against a devisee, where 
 the defendant was charged with having imposed a fictitious will on 
 
 1 R. V. Davis, 1 Law Rep., C. C. 272 ; 39 L. J., M. C. 135 ; and 11 Cox, 
 578, S. C. 
 
 2 In 1664, the practice of calling "witnesses in point of reputation" was 
 well established. See, per Hyde, C. J., in R. v. Turner, 6 How. St. Tr. 613. 
 In 1680, such evidence was received hy Scroggs, C. J., Mr. Recorder Jefferies 
 being the prosecutor, R. v. Harris, 7 How. St. Tr. 926, 929. 
 
 3 Att.-Gen. v. Bowman,- 2 B. & P. 532, n. a, per Eyre, C. B. His Lordship 
 observed, that " the true line of distinction is this ; in a direct prosecution for 
 a crime, such evidence is admissible ; but where the prosecution is not directly 
 for the crime but for the penalty, as in this information, it is not." See Att- 
 Gen. V. Radloff, 10 Ex. R. 84, 97, per Martin, B. 
 
 Y 2 
 
324 EVIDENCE OP CHARACTER WHEN ADMISSIBLE. [PAET II. 
 
 the testator in extremis, lie was not permitted to call witnesses to 
 prove his general good character ; ^ and a similar rule was laid 
 down in an action for slander, where the words charged the 
 plaintiff vnth stealing money from the defendant, though the 
 latter, by pleading truth as a justification, had put the character 
 of the former directly in jeopardy.^ In an action, too, for a libel, 
 which charged a surveyor with want of skill in doing some par- 
 ticular work for the defendant, the plaintiff was not allowed to 
 prove his general competency as a surveyor, though he offered 
 this evidence with the view of showing that the defendant, in 
 making the charge, was actuated by malice.^ It seems, — notwith- 
 standing a decision by Lord Kenyon to the contrary,* — that, in an 
 action for maUcious prosecution, the defendant, in support of 
 probable cause, cannot give evidence of the plaintiff's notoriously 
 bad character : ' and it has been held that, in an action of trespass 
 for false imprisonment on a criminal charge, the defendant must not 
 cross-examine, either as to the plaintiff's bad character, or as to 
 previous charges made against him.^ 
 
 § 355. A distinction, however, has been taken between cases § 329 
 where particular acts of misconduct are imputed to a party, and 
 those where his general conduct is put in issue; and though 
 evidence of character is rejected in the former, it has several 
 times been admitted in the latter class of cases.''' Thus, in an 
 action for a libel, contained in an answer to inquiries respecting 
 
 1 Doe V. Hicks, per Buller, J., cited by Gibbs, arguendo, in Doe v. Walker, 4 
 Esp. 50 ; B. N. P. 296, nom. Goodriglit v. Hicks, S. C. 
 
 2 Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J. 
 =" Brine v. Bazalgette, 3 Ex. R. 692. 
 
 * Rodriquez v. Tadmire, 2 Esp. 271. 
 
 * Newsam v. Carr, 2 Stark. R. 69, per "Wood, B. ; Gregory v. Thomas, 2 
 Bibb, 286. In America, this kind of evidence has been also rejected in actions 
 of assault and battery, Givens v. Bradley, 3 Bibb, 192 ; and in assumpsit, Nash 
 V. Gilkeson, 5 Serg. & R. 352 ; and is held to be inadmissible whenever the 
 general character is involved by the plea only, and not by the nature of the 
 action, Anderson v. Long, 10 Serg. & R. 55 ; Potter v. Webb, 6 Greenl. 14. 
 See Gr. Ev. § 55. 
 
 « Downing v. Butcher, 2 M. & Rob. 374 ; Jones v. Stevens, 11 Price, 235. 
 " Doe V. Hicks, per Buller, J., as cited by Gibbs, arguendo, in 4 Esp. 50. 
 
CHAP. II.J EVIDENCE OF CHARACTER TO AFFECT DAMAGES. 325 
 
 the character of a governess, where the language complained of 
 stated that the defendant parted with the plaintiff " on account of 
 her incompetency, and her not being ladylike or good-tempered," 
 general evidence was given of her competency, good-temper, and 
 manners, by witnesses who were her personal friends ;^ and on 
 the same principle, where, in a similar action, the words charged 
 the plaintiff generally with dishonesty and misconduct while in 
 service, a witness, with whom she had formerly lived, was allowed 
 to testify to her antecedent good conduct.^ These cases, however, 
 can scarcely be deemed an exception to the rule of exclusion ; for 
 it is clear that, as in cumulative offences, such as treason or a 
 conspiracy to carry on the business of common cheats, many acts 
 are given in evidence, because such crimes can be proved in no 
 other way,^ so, where the general behaviour of a party is im- 
 peached, it is only by general evidence that the charge c«n be 
 rebutted. 
 
 § 356. It has been above observed, that in some eases general x 330 
 evidence of character is admissible, for the purpose of increas- 
 ing or diminishing the amount of damages.^ Thus, evidence 
 impeaching the previous general character of the wife or 
 daughter in regard to chastity, is admissible in a petition by 
 the husband for damages on the ground of adultery,' or in an 
 action by the father for seduction ; ^ for in these proceedings 
 the plaintiff in reality seeks compensation for the pain which 
 the defendant has caused him to suffer, by disgracing his 
 family, and ruining his domestic happiness ; and it is manifest 
 that, such being the true nature of the claim, though in cases 
 of seduction not the ostensible ground of action,'^ the damages 
 
 ' Fountain v. Boodle, 3 Q. B. 5. See Brine v. Bazalgette, 3 Ex. R. 692. 
 
 2 King V. Waring, 5 Esp. 14, per Ld. Alvanley. 
 
 3 R. V. Roberts, 1 Camp. 399, per Ld. EUenborough. 
 
 * Ante, § 349. ^ 20 & 21 V., c. 85, § 33. 
 
 « B. N. P. 27, 296 ; Elsam v. Faiioett, 2 Esp. 563, per Ld. Kenyon. 
 
 ' See Dodd 0. Norris, 3 Camp. 520, per Ld. Ellenborough ; Andrews v. 
 Askey, 8 C. & P. 9, per Tindal, C. J. See, also, cases cited in n. a, to S. C. ; 
 Grinnell v. Wells, 7 M. & Gr. 1033, 1043 ; Thompson v. Rosa, 29 L. J., Ex. 
 1 ; 5 PL & N. 16, S. C. ; Rist v. Faux, 4 B. & S. 409, per Ex. Ch. ; 32 L. J., 
 
326 EVIDENCE OF CHAEACTBR TO AFFECT DAMAGES. [PAKT II. 
 
 should be commensurate with the pain, which will vary according 
 as the character of the wife or daughter has been previously un- 
 blemished or profligate. In these cases, therefore, not only evidence 
 of general bad character is admissible in mitigation of damages, but 
 the defendant may even prove particular acts of immorality or 
 indecorum.^ 
 
 § 357. But evidence of these acts, as well as proof of general bad § 331 
 character, must be confined to what occurred previously to the defen- 
 dant's misconduct, because this very misconduct may, by weakening 
 the principles of the woman, have indirectly caused any subsequent 
 immorality, and may itself have directly occasioned her general 
 want of reputation.^ Whether, in an action of seduction, where the 
 plaintiff's daughter is called as a witness, the defendant can prove 
 specific acts of immorality, without first laying a foundation for such 
 evidence in the cross-examination of the woman, is not perfectly 
 clear ; though, on principle, such a course seems open to no 
 objection, provided the evidence be tendered with the view, not of 
 impeaching the veracity of the party seduced, but of showing that, 
 as her previous conduct had been disgraceful, the father's feelings 
 could not have been wounded by the misconduct of the defendant.^ 
 However, if the daughter, in her examination in chief, states that 
 the defendant has seduced her, and that she has borne a child in 
 consequence, and the defence is that she has declared another 
 person to be the father, it is clear that witnesses cannot be called to 
 prove her declarations, unless she be first cross-examined as to the 
 fact of her having made them ; because, though language of this 
 kind, if lightly uttered, would tend to degrade her character, yet, if 
 used in earnest, it would directly contradict the testimony she had 
 given, and would be evidence, not in mitigation of damages, but in 
 bar of the action.* 
 
 Q. B. 386, S. C. ; Terry v. Hutchinson, 27 L. J., Q. B. 257 ; 9 B. & S. 487 
 S. C. ; Hedges v. Tagg, 7 Law Rep., Ex. 283 ; 41 L. J., Ex. 169, S. C. ' 
 
 ' Verry v. Watkina, 7 C. & P. 308, per Alderson, B. ; B. N. P. 27, 296. 
 
 2 Elsam V. Faucett, 2 Esp. 562 ; B. N. P. 27. 
 
 ■' Carpenter v. Wall, 11 A. & E. 803 ; 3 P. & D. 457, S. C. 
 
 ^ Id. ; Andrews v. Askey, 8 C. & P. 9, per Tindal, C. J. 
 
CHAP. II.] EVIDENCE OP CHARACTER TO AFFECT DAMAGES. 327 
 
 § 358. On a petition claiming damages from an alleged adul- § 332 
 terer/ the respondent may also prove ia mitigation of damage, 
 that the petitioner has been guilty of notorious infidelity ; has 
 turned his wife out of doors ; has refused to maintain her ; or has 
 otherwise been guilty of dissolute conduct ; ^ for, in such cases, a 
 man can scarcely complaiu of the loss of that society, upon which 
 he has himself placed so Httle value. It seems, also, that upon a 
 like principle, evidence may be given in an action for seduction, 
 that the plaintiff is a man of profligate habits. In actions for breach 
 of promise of marriage a similar rule prevails, the defendant being 
 entitled to prove in mitigation of damages, that the plaiatiif is a 
 person, either of bad character,' or of coarse and brutal manners,* 
 though if the acts of misconduct relied upon were committed after 
 the promise, or even before that event without the knowledge of the 
 defendant,^ and were sufficiently glaring to constitute a bar to the 
 action,® they can only be proved under a special defence.'' 
 
 § 359. Whether, in an action for defamation, evidence impeach- § 333 
 ing the plaintiff's previous general character, and showing that, at 
 the time of the publication, he laboured under a general suspicion 
 of having been guilty of the charge imputed to him by the 
 defendant, is admissible as affecting the question of damages, is 
 a point which has been much controverted. On the one hand it 
 is urged, that the admission of such evidence would be cruelly 
 unjust, as it would throw upon the plaintiff, while seeking redress 
 in a court of justice for a specific injury, the difficulty of showing 
 an uniform propriety of conduct during his whole life, and would 
 give the defendant an opportunity, under pretence of mitigating 
 the damages, of continuing and aggravating the origiaal calumny ; 
 and that, too, under circumstances, when, from the absence of any 
 
 1 See 20 & 21 V., c. 85, § 33. 
 
 2 B. N. P. 27 ; Bromley v. Wallace, 4 Esp. 237. 
 
 3 Foulkes V. Sellway, 3 Esp. 236, per Ld. Kenyon. See, also, Johnston v. 
 Canlkins, 1 Johns. C. 116 ; Boynton v. Kellogg, 3 Mass. 189. 
 
 < Leeds v. Cook, 4 Esp. 258, per Ld. EUenborougk. 
 s Irving V. Greenwood, 1 C. & P. 350, per Abbott, C. J. 
 6 Leeds v. Cook, 4 Esp. 256 ; Baddeley v. Mortlock, Holt, N. P. E. 151. 
 ' Ante, § 301. See Young v. Murphy, 3 Bing. N. C, 54 ; and Pujolas v. 
 Holland, Ir. Cir. E. 19. 
 
328 EYIDBNCE OF CHAEACTER XO AFFECT DAMAGES. [PART II. 
 
 plea of justification, his opponent was utterly unprepared to dis- 
 prove the aspersions. It is further contended, that if such 
 evidence were admissible, any man might fall a victim to a com- 
 bination made to ruin his good name, even by means of the very 
 action which he should bring in order to free himself from the 
 effects of malicious slander ; that timid, though well-conducted 
 men, would consequently not dare to vindicate their characters in 
 courts of justice, and thus libellers would enjoy a most dangerous 
 impunity. 
 
 § 360. To this it is rephed with much force, that, though the § 333 
 arguments on the other side would be entitled to great weight, if 
 the question respected the right of proving particular acts of 
 misconduct, they do not apply where evidence is offered of merely 
 general reputation; that every man, who demands compensation 
 for the ruin of his good character, ought to be prepared to rebut 
 any evidence of his general bad character ; that the danger of 
 admitting testimony of this kind is only imaginary, since the 
 witnesses, on cross-examination, might be compelled to state 
 the grounds of their belief; that, as any failure in the evidence 
 would probably much increase the damages, witnesses would 
 scarcely be called, except in support of a decisive case ; that the 
 law will not presume the existence of criminal conspiracies to 
 ruin reputations, and cannot be moulded to suit the convenience 
 of irrational timidity ; that to estimate the extent of the injury 
 which a plaintiff has sustained, and, consequently, the amount of 
 damages to which he is entitled, the jury must first ascertain what 
 was the real value of his character at the time when it was attacked 
 by the defendant ; and, that they can best, if not only, arrive at a 
 safe conclusion on this point, by inquiring what opinion was pre- 
 viously entertained respecting him, by those with whom he was 
 personally acquainted. Such being the arguments on either side 
 of this vexed question, it remains only to observe that the weight 
 of authority inclines slightly in favour of the admissibility of the 
 evidence, even though the defendant has pleaded truth as a justifi- 
 cation, and has failed in establishing that defence. ^ 
 
 1 See Richards v. Richards, 2 M. & Rob. 557 ; v. Moor, 1 M. &. Sel. 
 
 284 ; Ld. Leicester v. ^YalteT, 2 Ciimp. 251 ; Bell v. Parte, 11 Ir. Law R., 
 
CHAP. II.] EVIDENCE OF CHARACTER TO AFFECT DAMAGES. 329 
 
 § 361. It seems, howevei-, that here, as in other cases where § 334 
 witnesses to character are admitted, evidence must he confined to 
 the particular trait which is attacked in the alleged libel, and, as 
 to this, it can only furnish proof of general reputation, and must by 
 no means condescend to particular acts of bad conduct} And it 
 is quite clear, that any evidence of rumours, which are calculated 
 to compromise the plaintiff's character, must be strictly confined to 
 such as were prevalent before the publication of the slander of the 
 defendant ; for if this were not so, one man might slander another, 
 and then call his neighbours to say that they had heard of the im- 
 putations which he had himself originated.^ 
 
 § 862. In aggravation of damages the plaintiff cannot give § 335 
 evidence of general good character, unless counter-proof has been 
 first offered by the defendant ; for, until the contrary appear, 
 the presumption of law is already in his favour. Therefore, in 
 an action of slander for imputing theft, the plaintiff will not be 
 allowed to prove his character for honesty, even though the 
 defendant has placed on the- record pleas of justification.^ This 
 rule has, in some cases, been carried to a cruel extent. Thus, in 
 an action of seduction, where evidence was produced for the 
 
 N. S. 413, per Pigot, C. B. ; Williams v. Callender, Holt, N. P. R. 307 ; Earner 
 V. Merle, per Ld. EUenlDorough, cited 2 Camp. 253 ; KnobeU v. Fuller, Pea. 
 Add. Gas. 139, per Eyre, C. J. ; Newsam v. Carr, 2 Stark. R. 70, per Wood, B. ; 
 EUershaw v. Robinson, per Holroyd, J. ; Moore v. Oastler, in 1836, per Ld. 
 Demnan, after consulting Parke, B. ; Mawby v. Barber, in 1826, per Ld. Ten- 
 terden ; and Hardy v. Alexander, in 1837, per Coltman, J. These last four 
 cases are cited in 2 St. Ev. 641, 642, n. e. Kirkman v. Oxley, per Heath, J., 
 cited 2 St. Ev., 306, n. k. Contri — Jones v. Stevens, 11 Price, 235 ; Waithman 
 V. Weaver, D. & R., N. P. C. 10 ; 11 Price, 257, n. S. C. ; Cornwall v. Richard- 
 son, Ry. & M. 305, per Abbott, C. J. ; Snowdon v. Smith, per Chambre, J., 
 cited 1 M. & Sel. 286. In Scotland the evidence is admissible. Dickson, Ev. 
 § 24, and cases there cited in n. d. For the American authorities, see Root v. 
 King, 7 Cowen, 613 ; Bailey v. Hyde, 3 Conn. 463 ; Bennett v. Hyde, 6 Conn. 
 24 ; Douglass v. Tousey, 2 Wend. 352 ; Inman v. Foster, 8 Wend. 602 ; 
 Walcott V. Hall, 6 Mass. 514 ; Ross v. Lapham, 14 Mass. 275 ; Foot v. Tracv, 
 1 Johns. 45. 
 
 ' See cases cited in last n6te, and further, Andrews v. Vanduzer, 11 Johns. 
 38 ; Sawyer v. Eifert, 2 Nott & M'C. 511. 
 
 2 Thompson v. Nye, 16 Q. B. 175 ; BeU v. Parke, 11 Ir. Law R., N. S. 413. 
 
 3 Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J. 
 
330 EVIDENCE OF CHAEACTEB WHEN ADMISSIBLE. [PAET II. 
 
 defence, to prove that the girl had previously had a child by 
 another man, Lord EUenborough would not allow a question to 
 be asked respecting her general good character for chastity, but 
 restricted the plaintiff to the proof that the specific charge made 
 by the defendant was false ; ^ and the same learned judge on 
 another occasion, where the daughter was cross-examined at 
 length, with a view of showing that she had been guilty of gross 
 levity and indelicacy, rejected similar evidence, observing that the 
 witness, on her re-examination, had had ample opportunity of 
 explaining her conduct.^ In another case for criminal conversation, 
 in which the defendant had endeavoured, by cross-examining the 
 plaintiff's witnesses, to impeach his character, but had failed in 
 the attempt, Lord Kenyon refused to permit the plaintiff to call 
 witnesses to his general good conduct.^ It is true that in these 
 cases the facts insinuated had, or might have, been denied, and 
 that, consequently, the characters attacked remained in strictness 
 unimpeached ; still, the very circumstance of the questions being 
 asked was calculated to excite a suspicion in the minds of the jury, 
 which, in common justice, the plaintiff should have had an op- 
 portunity of entirely removing.* It is satisfactory to find that a 
 contrary rule has prevailed in two later cases,' one of which has 
 been recognised in Ireland.^ 
 
 § 363. The law which regulates the admission of general evi- § 336 
 dence of character for the purpose of impeaching the veracity of 
 a witness vtill be discussed hereafter ; '^ but it may be here con- 
 venient to point out how far such evidence will be receivable, 
 where its object is, not so much to shake the credit of the witness 
 as to show directly that the act in question has not been com- 
 
 1 Bamfielcl v. Massey, 1 Camp. 460. 2 -Qq^^ ^. Norris, 3 Camp. 519. 
 
 3 King V. Francis, 3 Esp. 116. "• 1 C. & P. 100, n. a ; 2 St. Ev. 306, 307. 
 
 6 Bate V. Hill, 1 C. & P. 100, per Park, J. ; Murgatroyd v. Murgatroyd, 
 per Bayley, J., cited 2 St. Ev. 307, n. 0. See, also, R. v. Clarke, 2 Stark. 
 R. 241. 
 
 « Brown v. Goodwin, Jr. Cir. Rep. 61, per Torrens, J. Trespass for seduction. 
 The daughter was asked questions tending to impeach her reputation, where- 
 upon the plaintiff was allowed to call witnesses to speak to her general good 
 character. ^ Post, §§ 1470—1473. 
 
CHAP. II.] EVIDENCE OP CHARACTER OF PROSECUTRIX. 331 
 
 mitted. Thus, on indictments for rape, or an attempt to commit 
 that crime, while CAddence of general bad character is admissible 
 to show that the prosecutrix, like any other witness, ought not to 
 be believed upon her oath, proof that she is a reputed prostitute 
 would go far towards raising an inference that she yielded willingly 
 to the prisoner's embraces. General evidence, therefore, of this kind 
 will be received, though the woman be not called as a witness, 
 and though, if called, she be not asked, on cross-examination, 
 any questions tending to impeach her character for chastity;^ 
 but it seems that the counsel for the defence cannot go further, 
 and prove specific immoral acts vdth the prisoner, unless he 
 has first given the prosecutrix an opportunity of denying or ex- 
 plaining them.^ It further appears to be the law, that, 'although 
 the prosecutrix may be cross-examined as to the particular acts 
 of immorality with other men, she may decline to answer such 
 questions, and if she answers them in the negative, witnesses cannot 
 be called to contradict her.^ 
 
 ' E. V. Claxke, 2 Stark. E. 241, per Holroyd, J. ; E. v. Clure, Ir. Cir. E. 275, 
 per Crampton, J. 
 
 2 E. V. Cookoroft, 11 Cox, 410. See E. o. Martin, 6 C. & P. 562 ; E. v. 
 Eobin-s, 2 M. & Eob. 512 ; E. v. Aspinall, per Hullock, B., cited 3 St. Bv. 952, 
 n. c. In E. V. Hodgson, E. & E. 211, it was held that evidence of the prosecu- 
 trix having had connexion with other men was inadmissible. On one occasion 
 the prisoner's counsel was allowed to ask the prosecutrix, with the mew of con- 
 tradicting her, whether she had not, on a day since the alleged rape, been 
 walking in a certain street with a conunon prostitute, looking out for men. 
 E. V. Barker, 3 C. & P. 589, per Park, J., after consulting Parke, J. ; see also 
 Verry v. Watkins, 7 C. & P. 308 ; Andrews v. Askey, 8 C. & P. 7 ; and E. v. 
 Dean, 6 Cox, 23. 
 
 ' E. V. Cockcroft, 11 Cox, 410, per Willes, J., & Martin, B. ; E. v. Holmes 
 and Fumess, 41 L. J., M. C. 12 ; 12 Cox, 137 ; 1 Law Eep., C. C. 334, S. C, 
 per five judges in Ct. of Cr. Ap., overruling E. v. Eobins, 2 M. & Eob. 512. 
 
332 EUIjES EESPECTING THE BDETHEN OF PEOOF. [PAET II. 
 
 CHAPTER III. 
 
 BURTHEN OF PROOF. 
 
 § 364.^ A THIRD RULE, which governs the production of evidence, § 337 
 is, that the burthen of proof lies on the party who substantially 
 asserts the affirmative of the issue. This rule of convenience, — which 
 in the Koman law is thus expressed, Ei incumbit probatio, qui dicit, 
 non qui negat,^ — has heen adopted in practice, not because it is im- 
 possible to prove a negative, hut because the negative does not admit 
 of the direct and simple proof of which the affirmative is capable ; ^ 
 and, moreover, it is but reasonable and just that the suitor who 
 rehes upon the existence of a fact, should be called upon to prove 
 his own case. In the application of this rule, regard must be had 
 to the substance and effect of the issue, and not to its grammatical 
 form ; for in many cases the party, by making a slight alteration in 
 the drawing of his pleadings, may give the issue a negative or 
 affirmative form, at his pleasure.* 
 
 § 365. The best tests that can be devised for ascertaining on § 338 
 whom the burthen of proof hes, are, first to consider which party 
 would succeed if no evidence were given on either side ; ' and, 
 secondly, to examine what would be the effect of striking out of the 
 record the allegation to be proved, bearing in mind that the onus 
 must lie on whichever party would fail, if either of these steps were 
 pursued.^ For instance, if, in an action of covenant or assumpsit, 
 
 I Gr. Ev. § 74 in part. 
 
 ^ Dig. Lib. 22, tit. 3, 1, 2 ; Maso. de Prob. Conol. 70, tot. ; Concl. 1128, n. 10. 
 See Tait, Ev. 1. 
 
 ' Dranc[uet v. Prudhomme, 3 Louis. E. 83, 86. 
 
 ■" Seward v. Leggatt, 7 C. & P. 615, per Ld. Abinger. 
 
 '' Amo8 V. Hughes, 1 M. & Rob. 464, per Alderson, B. ; Belolier v. M'lntosh, 
 8 C. & P. 721, per id. ; Doe v. Rowlands, 9 0. & P. 735, per Coleridge, J. • 
 Osborn v. Thompson, 2 M. & Rob. 266, per Erskine, J. ; Ridgway v. Ewbank^ 
 2 id. 218, per Alderson, B. ; Geach v. Ingall, 14 M. & W. 97, per id. 
 
 6 Mills !). Barber, 1 M. & W. 427, per Alderson, B. 
 
CHAP. III.J EXAMPLES RESPECTING THE BURTHEN OF PROOF. 333 
 
 brought against a tenant, the breach assigned be that the premises 
 were not kept in repair, and this allegation be traversed by the state- 
 ment of defence, the plaintiff must prove his negative averment ; ^ 
 for though according to the grammatical construction of the issue, 
 the af&rmative lies on the defendant, yet the substantial merits of 
 the case must be proved by the plaintiff; and if no evidence were 
 given, or if the allegation on which issue was joined were struck 
 from the record, the defendant would clearly be entitled to a 
 verdict. So, if a statement of claim on a life pohcy, — after 
 averring that the insurance was effected on an assertion made by 
 the plaintiff, that the insured was not subject to habits or attacks 
 of illness tending to shorten Ufe, but was in good health, — should 
 allege that this assertion was true, and the defendant were to plead 
 that it was false in these respects, that the insured was subject to 
 habits and attacks tending to shorten life, that is, to habits of 
 intemperance and attacks of erysipelas, and was ill at the time 
 when the assertion was made, the burthen of proof would lie upon 
 the plaintiff, because, to entitle him to a verdict, some evidence 
 must be given to show that, at the time when the policy was 
 effected, the life was insurable.^ 
 
 § 366. Again, if to an action for not executing a contract in a § 338 
 workmanhke manner, the defendant plead that the work was pro- 
 perly done,^ or if a statement of claim allege that a horse sold 
 under a warranty was unsound, and this fact be traversed by the 
 statement of defence,* the onus, in either case, will lie on the 
 
 1 Soward v. Leggatt, 7 C. & P. 613 ; Doe v. Eowlands, 9 C. & P. 734, per 
 Coleridge, J. ; Belcher v. MTntosh, 8 C. & P. 720, per Alderson, B. 
 
 2 Huokman v. Fimie, 3 M. & W. 505, 510 ; Ashby v. Bates, 15 M. & W. 
 589 ; 4 Dowl. & L. 33, S. C. ; Geaoi v. IngaH, 14 M. & W. 95 ; Rawlins v. 
 Desborougli, 2 M. & Rol). 70, per Ld. Denman ; 8 C. & P. 321, S. C. ; Craig v. 
 Fenn, C. & Marsh. 43, per id. In Pole o. Rogers, 2 M. & Rob. 287, Tindal, 
 C. J., held, that under similar pleadings, the defendant should begin; but this 
 case, being distinctly opposed to the authorities stated above, cannot be sup- 
 ported. ^ Amos V. Hughes, 1 M. & Rob. 464. 
 
 * Osbom V. Thompson, 9 C. & P. 337, per Erskine, J. ; 2 M. & Rob. 254, 
 S. C. ; Cox v. Walker, cited 9 C. & P. 339, per Ld. Denman ; S. P. ruled per 
 Tindal, C. J., as dted id. 338. In Fisher v. Joyce, cited id. 338, Coleridge, J., 
 allowed the defendant to begin, but in Doe v. Rowlands, id. 735, he confessed 
 that this decision was wrong. 
 
334 EFFECT OP DISPUTABLE PRESUMPTIONS OP LAW. [PART II. 
 
 plaintiff; and the same rule will prevail in an action brought against 
 a solicitor for not using due diligence/ or against a merchant for 
 not loading a sufficient cargo on board a ship, pursuant to a 
 charter-party,^ or against an architect for not building houses 
 according to a specification,^ and, indeed, in every case in which 
 the plaintiff grounds his right of action upon a negative allegation, 
 and where, of course, the establishment of this negative is an 
 essential element in support of his claim.* So, if a damage suit 
 be instituted in the Admiralty Division of the High Court, and 
 the defendant, making no charge of negligence against the plaintiff, 
 denies his averments, and pleads inevitable accident, the plaintiff 
 on the trial must begin. ^ 
 
 § 367. On this general rule, that the burthen of proof lies on the § 339 
 party holding the substantial affirmative, some exceptions have been 
 engrafted, which should here be noticed. First, if a disputable pre- 
 sumption oflaw^ is in favour of an affirmative allegation, the party 
 who supports the negative must call witnesses to rebut this pre- 
 sumption. For instance, where a shipper was charged, in an action 
 on the case, with having shipped goods dangerously combustible on 
 board the plaintiff's ship, without giving notice of their nature to any 
 officer on board, whereby the ship was burnt, it was held that, as the 
 omission to give notice would have been a criminal neglect of duty 
 on the part of the defendant, the law presumed that notice had been 
 given, and threw upon the plaintiff the burthen of proving the nega- 
 tive.''' So, where a landlord brought an action of ejectment against 
 his tenant, on an alleged forfeiture by breach of a covenant to insure 
 in some office in or near London, it was held that the omission to 
 
 1 Shilcock V. Passman, 7 C. & P. 291, per Alderson, B. 
 
 2 Eidgway v. Ewtank, 2 M. & Rot. 217, per Alderson, B. 
 
 3 Snuth V. Davies, 7 C. & P. 307, per Alderson, B. 
 
 1 Doe V. Jolmson, 7 M. & Gr. 1047, 1060, per Tindal, C. J. 
 
 ' The Benmore, 4 Law Eep., Adm. & Eoc. 132 ; 43 L. J., Adm. 5, S. C. ; 
 The Otter, 4 Law Bep., Adm. & Eco. 203. 
 
 ' It is only with reference to dispntahle presumptions of law that this rule 
 applies, for if the presumption be conclusive, no evidence can be given to rebut 
 it ; if it be merely one of fact, it can only be made through the intervention 
 of a jury. See ante, §§ 71, 109, 214— 216. 
 
 ? Williams v. E. India Co., 3 East, 192. 
 
CHAP. III.J EFFECT OF PRESUMPTIONS IN SHIFTING ONUS. 335 
 
 insure must be proved by the plaintiff, because the law, in favour of 
 the party in possession, will presume that he has satisfied the terms 
 of the covenant ; ^ and had the landlord wished to have been relieved 
 from the necessity of estabhshing this negative proof, he might 
 easily have inserted a clause to that effect in the lease. ^ If, to an 
 action on a pohcy of insurance effected on a ship, the underwriter 
 plead that certain material facts, known to the assured, had been 
 concealed from him, the burthen of proving the non-communication 
 of these facts will, on a rephcation traversing the whole statement 
 of defence fall on the defendant ; for, although the allegation con- 
 tained in his statement may be negative in its terms, stUl, as it was 
 the duty of the assured to make the communication, — either upon 
 the principle that every policy is based on the supposed existence of 
 a certain state of facts, or on the ground that insurance is a contract 
 uberrimse fidei, — some evidence should be given by the underwriter 
 to rebut the presumption that the assured had discharged his duty. 
 The amount of the proof required will, indeed, vary according to the 
 circumstances of the case, and very slender evidence will often be 
 sufficient ; for, suppose a ship was known by the assured to have 
 been burnt at the time when the assurance was effected, proof of 
 this fact would in itself be reasonable evidence to show that it had 
 not been communicated, because no underwriter in his senses, 
 had he been aware of such a circumstance, would have executed 
 the policy.^ 
 
 § 368. Again, if a party be sued on a bill of exchange alone, 
 without any substantive claim being made in respect of the con- 
 sideration, the plaintiff need not allege in his statement or prove at 
 the trial that the bill was given for a good consideration, as the law 
 will presume that fact in the absence of evidence to the contrary.* 
 
 ' See Toleman v. Portbiiry, 39 L. J., Q. B. 136, per Ex. Ch. 
 
 2 Doe V. Whitehead, 8 A. & E. 571. The court there held that the defen- 
 dant's refusal to produce the policy or any receipt for premium, both before 
 the action was commenced, and also at the trial, was not sufficient proof of an 
 omission to insure, though due notice to produce had been served. 
 
 3 ElMn V. Janson, 13 M. & W. 655, 663, 665, per Parke and Alderson, Bs. 
 
 « Rules of Sup. Ct, Ord. xix., r. 28, is as follows : — " Neither party need in 
 any pleading allege any matter of fact which the law presumes in his favour, 
 or as to which the burthen of proof lies upon the other side, unless the same 
 
336 EFFECT OF PBESUMPTIONS IN SHIFTING ONUS. [PABT II. 
 
 So, — to put a somewhat more complex case, — where to an action § 340 
 brought by an indorsee against the acceptor of a bill of exchange, the 
 defendant pleaded that the bill was accepted by him for the accom- 
 modation of the drawer, and was indorsed to the plaintiff without 
 value, and the plaintiff replied that it was indorsed to him for a 
 valuable consideration, the burthen of proving this issue was held to 
 lie on the defendant, because the mere possession of the bill raised a 
 prima facie presumption of due consideration having been given for 
 it,' and perhaps also, — independent of this presumption, — because 
 the defendant was bound to prove all those facts, whether aflSrmative 
 or negative, which were necessary to establish his defence to the 
 action.^ So, where the defendant pleaded that he had accepted the 
 bill for his own accommodation, and that the drawer, instead of 
 getting it discounted for the use of the defendant, had indorsed it to 
 a stranger, who had fraudulently indorsed it to the plaintiff, after it 
 became due, or without consideration, and the plaintiff traversed this 
 last allegation, the burthen of proving that the bill was overdue at 
 the time of indorsement, or that no value was given for it by the 
 holder, was held to have devolved on the defendant, because the 
 plea did not contain such an allegation of fraud as would counteract 
 the presumption arising from the possession of the instrument.^ 
 
 §369. Where, however, the defendant's plea, after disclosing some § 341 
 original fraud or illegality in the transaction, — as, for instance, after 
 stating that the bill had been obtained by fraud or duress, or had 
 been given for gambling purposes,* or had been lost or stolen, — 
 averred that the plaintiff held it without value, and this last fact 
 
 has first been specifically denied. E.g. — Consideration for a 1:111 of exchange 
 where the plaintiff sues only on the hill, and not for the consideration as a 
 substantive ground of claim." 
 
 1 MUls V. Barber, 1 M. & W. 425 ; Tyr. & Gr. 835 ; 5 Dow. 77, S. C. ; Whit- 
 taker V. Edmunds, 1 M. & Eob. 366, per Patteson, J. ; Fitch v. Jones, 5 E. & B. 238. 
 
 2 See per Alderson, B., in Elkin v. Janson, 13 M. & W. 664. 
 
 3 Lewis V. Parker, 4 A. & E. 838 ; Jacob v. Hungate, 1 M. & Rob. 445, per 
 Parke, B. ; Brown v. Philpot, 2 id. 285, per Ld. Denman. See, also. Smith v. 
 Martin, C. & Marsh. 58. 
 
 * The fact that a note was given for a wager on the hop duty, when that 
 duty was subject to fluctuation, was held not to render the instrument illegal 
 within this rule, for such a wager was only a promise which the law would 
 not enforce, Fitch v. Jones, 24 L. J., Q. B. 293 ; 5 E. & B. 238, S. C. 
 
CHAP. III.J EFFECT OF PRESUMPTIONS IN SHIFTING ONUS. 337 
 
 was traversed by the replication, the plaintiff was required to prove 
 his traverse, because the presumption of illegality arising from an 
 admitted fraud was held to attach to every subsequent holder, and 
 rendered him incapable of recovering in the absence of evidence, 
 showing under what circumstances he became possessed of the bill.'^ 
 If, too, in such a case as that just put, the plaintiff, in accordance 
 with the present practice of pleading,^ were to meet the statement of 
 defence by a general denial, and the defendant at the trial were to 
 give evidence of fraud, the burthen of proving consideration would 
 by such evidence be shifted on the plaintiff.* So, where in answer to 
 an action on a promissory note brought by the indorsee against the 
 maker, the defendant pleaded that he had presented a petition to the 
 Court of Bankruptcy, and that the note, which had been indorsed 
 to the plaintiff without value, had been given to the indorser in 
 consideration of his not opposing the petition, the court held, on a 
 replication de injuria, that, as soon as the illegahty was proved, the 
 onus was cast upon the plaintiff of showing that he gave value.* 
 
 1 See cases cited in last four preceding notes. Also Bingham v. Stanley, 
 2 Q. B. 117 ; 1 G. & D. 237, S. C, overruling Ld. Demnan's decision at Nisi 
 Prius as reported in 9 C. & P. 374. In Elkin v. Janson, 13 M. & W. 664, 665, 
 Alderson, B., observes, " But take tke case of fraud ; — where the defendant, 
 who is sued upon a hill of exchange, pleads that it was obtained from the 
 drawer by fraud upon the part of A., and that A. then indorsed it to the 
 holder ; there proof of the fraud renders it highly probable that A., who has 
 obtained the bill from the drawer by fraud, and has not been able to get any- 
 thing from him, would hand it over to some one else, to be the conduit-pipe for 
 obtaining value for it. That raises a presumption, until some answer is given, 
 that there has been no indorsement for value, and casts upon the plaintiff, 
 after this general evidence, the necessity of negativing that presumption, and 
 of showing that, although the above inference might fairly be made from the 
 fact of there being fraud in the original inception of the hill, value has in 
 fact been given for it by the indorsee.'' See, however. Masters v. Barrets, 
 2 0. & Kir. 715. 
 
 2 Rules of Sup. Ct., Ord. xix., r. 21 ; ante, §§ 302, 304. 
 
 3 Harvey v. Towers, 6 Ex. E. 656 ; Smith v. Brain, 16 Q. B. 244 ; Hogg v. 
 Skeen, 34 L. J., C. P. 153 ; 18 Com. B., N. S. 426, S. 0. ; Berry v. Alderman, 
 14 Com. B. 95 ; Ktch v. Jones, 24 L. J., Q. B. 293 ; 5 E. & B. 238, S. C. ; 
 Mather v. Ld. Maidstone, 26 L. J., C. P. 58 ; 1 Com. B., N. S. 273, S. C. ; Hall 
 V. Featherstone, 3 H. & N. 284. 
 
 ■• BaUey v. Bidwell, 13 M. & W. 73, overruling Paterson v. Hardacre, 4 
 Taunt. 114. 
 
388 BURTHEN OF PROOF IN CRIMINAL PROCEEDINGS. [PART II. 
 
 § 370. Again, if the plaintiff were to aver that a certain party § 342 
 was, at a specified time, of sound mind, and this averment were tra- 
 versed by the defendant, the latter would be bound to prove the 
 negative allegation of incompetency, because every man may reason- 
 ably be presumed to be sane till the contrary is shown, and conse- 
 quently, this presumption of fact, in the absence of evidence to the 
 contrary, would equally serve the plaintiff's purpose, as though he 
 had given express evidence of the sanity.^ If, however, on the trial 
 of such an issue, the defendant were to put in evidence an inquisi- 
 tion finding that the party had been lunatic prior to the transaction 
 in question, this evidence, though not conclusive, would be sufficient 
 to shift the burthen of proof on the plaintiff, who rehed on the party's 
 sanity.^ So, if a vidll duly signed and attested be impugned in the 
 Probate Division of the High Court, on the ground of the testator's 
 insanity, the onus of proof will he on the impugner ; ^ but if it be 
 shown that the testator was insane at any time prior to the date of 
 the v?ill, or within a few years after that date, the burthen of estab- 
 lishing his capacity to have made the will in question will be shifted 
 on the propounding party.* 
 
 § 371. On the twofold ground that a prosecutor must prove every § 344 
 fact necessary to substantiate his charge against a prisoner, and that 
 the law will presume innocence in the absence of convincing evidence 
 to the contrary, the burthen of proof, unless shifted by legislative 
 interference, will fall in criminal proceedings on the prosecuting 
 party, though, in order to convict, he must necessarily have recourse 
 to negative evidence. Thus, if a statute, in the direct description 
 of an offence, and not by way of proviso, contain negative matter, 
 the indictment or information must also contain a negative allega- 
 
 1 See Sutton v. Sadler, 26 L. J., C. P. 284 ; 3 Com. B., N. S. 87, S. C. ; Dyoe 
 Sombre v. Troup, 1 Deane, Eo. E. 38, 49. 2 Hassard v. Smith, I. E., 6 Eq. 429. 
 
 ' A contrary rule prevails in Masaacliusetts, Crowninshield v. Crowninshield, 
 2 Gray, 524 ; and see Anderson v. Gill, 3 Maoq., S. 0. H. of L. 197, per Ld. 
 Wensleydale. 
 
 ■• Waring v. Waring, 6 Moo. P. 0. E. 341, 355—357, 368, 369, per Ld. 
 Brougham ; 6 Eo. & Mar. Gas. 394—396, S. C. ; Fowlis v. Davidson, 6 Ec. & 
 Mar. Cas. 473, 474, per Sir H. Eust ; Grimani v. Draker, 6 id. 420—422, 441, 
 per id. ; Prinsep & E. India Co. v. Dyce Somhre, 10 Moo. P. C. E. 232, 244—247 ; 
 ante, § 197. 
 
CHAP. III.] BURTHEN OF PEOOF SHIFTED BY STATUTE. 339 
 
 tion, which must in general be supported by prima facie evidence.^ 
 Such was formerly the case in prosecuting parties, either for cours- 
 ing deer in inclosed grounds without the consent of the owner,*^ or 
 for cutting trees without such consent ;^ and although the old sta- 
 tutes, which made the absence of consent a material element in these 
 offences, are now repealed, the cases decided upon them will illus- 
 trate the principle under discussion. In such cases, indeed, it is 
 not necessary to call the owner himself to prove that no consent was 
 given by him, but the jury may iufer the absence of consent from 
 the conduct of the accused, or from other circumstances ; still, some 
 evidence must be given, — as, for instance, that the act complained 
 of was done in a suspicious manner, or at an unseasonable hour, or 
 that the defendant, when detected, endeavoured to escape, or the 
 like, — ^which, in the absence of counter testimony, would afford 
 ground for presuming that the allegation of non-consent, was 
 true.* 
 
 § 372. The necessity of giving this prima facie evidence on § 345 
 the part of the prosecution having been found, in the great 
 majority of criminal cases, not only useless, but highly incon- 
 venient, the Legislature has in many instances interfered, some- 
 times by re-describing the offence, and omitting all mention of 
 the negative matter,^ but generally, by expressly enacting, that 
 
 1 E. ■». Jarvis, 1 East, 644, n. ; Taylor v. Humphries, 17 Com. B., N. S. 539, 
 549 ; Davis v. Scrace, 4 Law Rep., C. P. 172 ; 38 L. J., M. C. 79, S. C. nom. 
 Davis V. Scrase ; Morgan v. Hedger, 5 Law Eep., C. P. 485 ; 40 L. J., M. C. 13, 
 S. C. ; Copley i). Burton, 5 Law Eep., C. P. 489. 
 
 2 E. V. Allen, 1 Moo. C. C. 154 ; 42 G. 3, c. 107, § 1, repealed by 7 & 8 G. 4, 
 c. 27. Other provisions, omitting all mention of consent, are now substituted 
 by 24 & 25 V., c. 96, § 13. 
 
 3 E. V. Hazy, 2 C. & P. 458 ; 6 G. 3, o. 36, repealed first by 7 & 8 G. 4, c. 27, 
 and, secondly, by 30 & 31 V., c. 59. Other provisions, omitting all mention of 
 consent, are now substituted by 24 & 25 V., c. 97, §§ 20, 21. 
 
 * See R. V. AUen, 1 Moo. C. C. 154, overruling R. v. Rogers, 2 Camp. 654, 
 where it was held that the owner must be called ; R. v. Wood, Dear. & Bell, 1, 
 overruling R. v. Edge, an unreported case, said to have been decided by Martin, 
 B. ; R. V. Hazy, 2 C. & P. 458 ; R. v. Stone, 1 East, 639 ; R. v. Hawkins, 10 
 East, 211 ; Frontine v. Frost, 3 B. & P. 302 ; Evans v. Birch, 3 Camp. 10. See 
 ante, § 113. 
 
 ' See the two notes immediately preceding the last. 
 
340 BURTHEN OF PROOF SHIFTED BY STATUTE. [PART 11. 
 
 the burthen of proving authority, consent, lawful excuse, and the 
 like, should lie on the defendant. Thus, if a party he indicted 
 for being found by night, having in his possession any picklock 
 key, crow, jack, hit, or other implement of housebreaking ; ^ or 
 for buying or selhng at an undervalue, or for exporting or im- 
 porting, counterfeit coin;^ or for making, mending, or having in 
 his possession coining tools, or for conveying such tools, or any 
 coin or bullion, out of the Mint ; ^ or for having in his possession 
 any forged dies or stamps,* or any instruments or materials for 
 making, either letter stamps,' or excise paper,^ or paper used 
 for making exchequer bills,'' bank notes, ^ the notes of private 
 bankers,' or foreign notes ; ^° or for manufacturing paper similar 
 to that used for postage covers,^^ or exchequer bills ; ^^ or for 
 having in possession such paper before it has been stamped and 
 issued for use ; ^^ or for engraving bank notes or any part thereof,^* 
 the notes of private bankers,^^ or foreign notes ; ^* or for having in 
 possession counterfeit dies for making gold and silver vs^ares, or 
 instruments for making such dies, or any wares of gold, silver, or 
 base metal, having thereon forged dies,-''^ or having in possession 
 hackney-coach and stage plates, or drivers' or watermen's tickets ;^^ 
 — in all these, and in several other cognate offences,-'® the defendant, 
 by the express language of the statutes relating to them, is bound 
 to protect himself, by showing the existence of some lawful 
 authority or excuse. 
 
 1 24 & 25 v., 0. 96, § 58. ^ 24 & 25 V., c. 99, §§ 6, 7, 8, 14, 19. 
 
 3 24 & 25 v., c. 99, §§ 14, 24, 25. See E. v. Harvey, 1 Law Eep., C. C. 284 ; 
 40 L. J., M. C. 63, S. C, * 33 & 34 V., c. 98, §§ 18, 22. 
 
 = 3 & 4 v., 0. 96, § 22. 
 
 " 2 "W. 4, c. 16, § 3 ; 11 & 12 V., 0. 121, § 18. 
 
 ' 24 & 25 v., c. 5, § 18 ; 24 & 25 V., c. 98, § 9. 
 
 8 24 & 25 v., c. 98, § 14. ^ la. § 18. 10 id,. § 19. 
 
 " 3 & 4 v., 0. 96, § 29. 
 
 12 24 & 25 v., c. 5, § 18 ; 24 & 25 V., c. 98, § 10. 
 1' 3 & 4 v., 0. 96, § 30 ; 24 & 25 V., 0. 98, § 11 ; 24 & 25 V., 0. 5, § 19. 
 " 24 & 25 v., c. 98, §§ 16, 17. " Id. § 18. 
 
 ^« Id. § 19. " 7 & 8 v., c. 22, §§ 2, 3. 
 
 i» 6 & 7 v., 0. 86, § 20. See 30 & 31 V., c. 134, § 17., 
 
 i» See E. V. Edmundson, 28 L. J., M. C. 213 ; and 17 G. 3, c. 56, § 10, now 
 repealed ^by 24 & 25 V., c. 101. 
 
CHAP. III.] BUBTHEN OF PEOOF SHIFTED BY STATUTE. 841 
 
 § 373. So, if a party be charged with applying any marks ap- § 346 
 propriated to Her Majesty's stores,^ or with conyeying or having in 
 his possession any such stores, when the same are reasonably sus- 
 pected of being stolen or unlawfully obtained,^ he must, — as soon 
 as proof has been given, or an inference has been raised, that he 
 has acted ^ " knowingly," — either prove that he was lawfully autho- 
 rised to do what he has done, or at least furnish some satisfactory 
 evidence of the legality of his conduct.* In any prosecution, too, 
 under the direction of the Commissioners of Customs, in respect 
 of goods seized for non-payment of duties, or any other cause 
 of forfeiture, or for recovering any penalty under any Act relating 
 to the customs, if any dispute arise whether the duties of cus- 
 toms have been paid, or whether the goods have been lawfully 
 imported or unshipped, or concerning the place whence such 
 goods were brought, the proof in every such case lies on the 
 defendant.^ So, if a person be indicted for making a signal to 
 a smuggling vessel at sea, the burthen of proving that the signal 
 was not made for the purpose of giving illegal notice will 
 lie upon the defendant ; ^ and if any goods be found or seized 
 under the customs laws, they will be deemed to be run goods, 
 unless the owner can prove the contrary.'' So, in proceedings 
 under " The Seamen's Clothing Act, 1869," the accused must 
 be prepared to justify his conduct.^ So, under " The Foreign 
 Enlistment Act, 1870," if the breach of neutrality charged relate 
 to the delivery of a ship to one of the States at war, the burthen 
 lies on the builder " of proving that he did not know that the 
 ship was intended to be employed in the military or naval ser- 
 vice of such State." ^ So, under " The Merchant Shipping 
 Act, 1876," any person, who sends, or attempts to send, or takes a 
 ship to sea in an unseaworthy state so as to endanger life, is guilty 
 of a misdemeanor, unless he proves that he used all reasonable 
 means to ensure her going to sea in a seaworthy state, or that her 
 
 1 38 & 39 v., c. 25, § 4. "> ^7. See also §§ 8 & 9. 
 
 3 R. V. Wilmett, 3 Cox, 281, per Coltman, J. ; E. v. Cohen, 8 id. 41, per 
 Watson, B., and Hill, J. ; R. v. Sleep, L. & Cave, 44 ; 8 Cox, 472, S. C. 
 * R. V. Banks, 1 Esp. 146, per Ld. Kenyon. 
 
 s 39 & 40 v., c. 36, § 259. ^ Id. § 191. ' Id. § 1Y8. 
 
 8 32 & 33 v., c. 57, §§ 4, 5. ' 33 & 34 V., c. 90, § 9. 
 
342 BUBTHEN OP PEOOF SHIFTED BY STATUTE. [PAET II. 
 
 going to sea in an unseaworthy state was, under the circumstances, 
 reasonable and justifiable.^ So, in all legal proceedings under 
 " The Passengers' Act, 1855," the ship in question will be taken 
 to be within the provisions of the statute, unless proof to the 
 contraiy be adduced.^ So, if a man be summoned for being un- 
 lawfully in possession of venison, he must satisfy the magistrate 
 that he came lawfully by it ; ^ and if he be charged with knowingly 
 and unlawfully having on his premises any tree, shrub, post, pale, 
 rail, or the like, he must, on pain of conviction, give a satisfactory 
 account of how he came possessed of the articles found.* Persons, 
 too, found in possession of shipwrecked goods, or offering such goods 
 for sale, are bound to show that they have not transgressed the law 
 in taking them.^ 
 
 § 373. So, if proceedings be instituted against any person for § 34G 
 having or keeping an unlicensed theatre, or for acting for hire 
 therein, and it be proved that the theatre is used for the public 
 performance of stage plays, the burthen of proving that the theatre 
 is duly licensed or authorised lies on the accused." So, in any 
 action for a penalty under " The Public Health Act, 1875," for im- 
 properly acting as a member of a local board, the burthen of proof 
 is in great measure shifted on to the defendant.'^ So, in the hosiery 
 and silk-weaving trades, if any dispute arises between the manu- 
 facturer and the workmen respecting the alleged imperfect execution 
 of any work, which has been delivered to the manufacturer or his 
 agent, the work, if not produced in order to adjudication, will be 
 deemed to have been properly executed.^ So, if complaint be made 
 that a person employed in a factory without a surgical certificate, is 
 under the prescribed age, the employer shall be liable to penalties. 
 
 ' 39 & 40 v., c. 80, § 4. Tlie indictment in such a case need not aver that 
 the accused knew the ship was unseaw6rthy, or negative the use of reasonable 
 means to insure her going to sea in a seaworthy state. R. v. Freeman, I. R., 9 
 C. L. 527. 2 18 & 19 v., c. 119, § 89. 
 
 » 24 & 25 v., c. 96, § 14. 
 
 ^ 24 & 25 v., c. 96, § 35. 6 j^. §§ 65^ gg. 
 
 « 6&7V.,c. 68, § 17. 
 
 ' 38 & 39 v., c. 55, Sch. 2, Rule 1, sub-rule, 70. 
 
 8 8 & 9 v., c. 77, § 3 ; 8 & 9 v., c. 128, § 3, 
 
CHAP. III.] BUETHEN OF PROOF SHIFTED BY STATUTE. 
 
 343 
 
 unless he can prove, by an extract from a legal register of birth or 
 baptism, that the party employed is of the age required.^ So, in 
 any prosecution of a chimney sweeper for illegally employing a 
 climbing boy, the proof df the age of the person employed lies on 
 the defendant.'' So, if a pawnbroker be 'charged with certain 
 offences against "The Pawnbrokers' Act, 1872," he will be required 
 to prove some lawful or reasonable excuse for his conduct.^ 
 
 § 374. Again, in most of the prosecutions for offences against § 346a 
 the Bankrupt Law, the accused will be open to conviction on the 
 sole proof of his having committed the act complained of, "unless 
 the jury is satisfied that he had no intent to defraud," or, " to con- 
 ceal the state of his affairs," or, " to defeat the law," as the case 
 may be.* So, if any person exposes for sale, or transports by rail- 
 way, or turns out on unenclosed land, any animal affected with a 
 contagious disease, he will be deemed guilty of an offence against 
 " The Contagious Diseases Animals' Act, 1869," unless he can 
 show " that he did not know of the same being so affected, and that 
 he could not with reasonable diligence have obtained such know- 
 ledge."^ So, under the same Act, if a farmer be charged with 
 having diseased sheep and omitting to give notice of that fact -to a 
 police constable, it wiU be sufficient for the prosecutor to prove the 
 diseased state of the sheep, and the defendant must then, if he can, 
 rebut the charge by proof that he has given the due notice.® So, if 
 a consumer of gas be charged with fraudulently abstracting it, "the 
 existence of artificial means " for altering the index to any meter, 
 or for preventing any meter from duly registering, or for abstracting, 
 consuming, or using gas when such meter is under the consumer's 
 control, shall be " prima facie evidence that such alteration, pre- 
 vention, abstraction, or consumption has been fraudulently, know- 
 
 1 7 & 8 v., c. 15, §§ 54, 55 ; 27 & 28 V., c. 48, § 6. See 80 & 31 V., c. 103, 
 § 14. 2 27 & 28 v., c. 37, § 10. 
 
 3 35 & 36 v., c. 93, § 23, r. 4, & § 31. 
 
 * 32 & 33 v., c. 62, §§ 11, 12 ; 35 & 36 V., c. 57, §§ 11, 12, Ir. 
 
 5 32 & 33 v., c. 70, §§ 57, 58. But see Carroll v. Eiveis, I. E., 7 C. L. 226, 
 wliicli was decided on the Cattle Diseases Acts for Ireland, 29 & 30 V., c. 4, and 
 33 & 34 v., c. 36, and in which it was held that the proof of " knowledge " 
 rested on the prosecutor. 
 
 * Huggins V. Ward, 8 Law Eep., Q. B. 521. 
 
344 FACTS PECULIAKLY WITHIN KNOWLEDGE OF A PARTY. [PAET II. 
 
 ingly and wilfully caused by the consumer." ^ A similar presumption 
 of guilty knowledge is also recognised with respect to water when 
 supplied by measure.^ 
 
 § 375. In accordance with the law as just illustrated, " The § 346b 
 Prevention of Crimes Act, 1871,"^— after showing how minor 
 offences against that Act may be prosecuted, — goes on to enact, in 
 subs. 3 of § 17, that " any exception, exemption, proviso, excuse, 
 or qualification, whether it does or does not accompany the de- 
 scription of the offence in this Act, may be proved by the defendant, 
 but need not be specified or negatived in the information or com- 
 plaint, and, if so specified or negatived, no proof in relation to the 
 matters so specified or negatived shall be required on the part of the 
 informant, or prosecutor, or complainant." * 
 
 § 376. In several of the instances above given, the Legislature § 347 
 has adopted a principle which the common law also recognises, 
 and which may here be noticed as a second exception to the 
 general rule, that the burthen of proof Ues on the party who 
 substantially alleges the afiirmative. The exception is this, that 
 where the subject matter of the allegation lies peculiarly within 
 the knoivledge of one of the parties, that party must prove it, 
 whether it be of an affirmative or a negative character, and even 
 though there be a presumption of law in his favour.^ Thus, where 
 
 1 34 & 35 v., c. 41, § 38. 
 
 2 38 & 39 v., c. 55, § 60. 3 34 & 35 y^ ,, ^2. 
 
 * This seems to be a favourite form of the present Parliamentary dxauglits- 
 man, for it will he found in many other Acts passed in and since 1871. See 
 The Pedlars Act, 1871, 34 & 35 V., c. 96, § 20, subs. 3 ; The Petroleun; 
 Act, 1871, 34 & 35 V., c. 105, § 15, subs. 5 ; The Infant Life Protection Act, 
 1872, 35 & 36 V., c. 38, § 11 ; The Mines Regulation Acts, 1872, 35 & 36 V., 
 c. 76, § 63, r. 3 ; and c. 77, § 34, r. 3 ; The Licensing Act, 1872, 35 & 36 V., 
 c. 94, § 51, 1'. 4 ; Roberts v. Humphreys, 8 Law Rep., Q. B. 483 ; 42 L. J., M. C. 
 14Y, S. C. ; The Naval Artillery Volunteer Act, 1873, 36 & 37 V., c. 77, § 36 ; 
 The Elementary Education Act, 1873, 36 & 37 V., c. 86, § 24, r. 2 ; The Public 
 Health Act, 1875, 38 & 39 V., o. 55, § 252 ; and The Friendly Societies Act, 
 1875, 38 & 39 v., c. 60, § 33, subs. 5. 
 
 ^ Dickson v. Evans, 6 T. R. 60, per Ashhurst, J. In R. v. Turner, 5 M. & Sel. 
 206, Bayley, J., says, " I have always understood it to be a general rule, that if 
 a negative averment be made by one party, which is peculiarly within the 
 knowledge of the other, the party within whose knowledge it lies, and who 
 
CHAP. III.] FACTS PECULIARLY WITHIN KKOWLEDGE OF A PAETY. 345 
 
 an action for penalties was brought, under the old law, against a 
 person for practising as an apothecary without a certificate,^ the 
 plaintiff would, independent of this exception, have been bound 
 to prove the want of a certificate ; for first, though the allegation 
 was in a negative form, its proof was essential to the plaintiff's 
 case ; and next, the law might fairly presume that the defendant 
 would not transgress the provisions of a statute ; still, as the de- 
 fendant was peculiarly cognisant of the fact, whether or not he had 
 obtained a certificate, and, if he had obtained one, could have no 
 difficulty in producing it, the law, which is founded on general con- 
 venience, compelled him to do so.^ 
 
 § 377. This exception equally prevails in all civil or criminal § 348 
 proceedings instituted against parties for doing acts, which they 
 are not permitted to do unless duly qualified ; as for selling 
 liquors, sporting,^ exercising a trade or profession, and the like.* 
 So, in an action for penalties against the proprietor of a theatre, 
 for performing dramatic pieces without the written consent of 
 the author,' the onus of proving such consent lies on the defen- 
 dant.* In misprision of treason, if the treason be proved, and 
 the knowledge of it be traced to the prisoner, he is, in strictness, 
 bound to negative the averment of concealment, by offering proof 
 
 asserts the affirmative, is to prove it, and not lie who avers the negative ;'' hut 
 in ElMn v. Janson, 13 M. & W. 662, Alderson, B., while conunenting on that 
 passage, observed, " I doubt, as a general rule, whether those expressions are 
 not too strong. They are right as to the weight of the evidence, but there 
 should be some evidence to start it, in order to cast the onus on the other side." 
 
 ' Under 55 G. 3, c. 194. See, now, 21 & 22 V., o. 90, § 40. 
 
 2 Apoth. Co. V. Bentley, Ry. & M. 159, per Abbott, C. J. 
 
 ' The Act of 1 & 2 W. 4, c. 32, which relates to Game, enacts, in § 42, that 
 " it shall not be necessary, in any proceeding against any person under that Act, 
 to negative by evidence any certificate, licence, consent, authority, or other 
 matter of exception or defence ; but that the party seeking to avail himself of 
 any such certificate, licence, consent, authority, or other matter of exception or 
 defence, shall be bound to prove the same." 
 
 ^ R. V. Turner, 5 M. & Sel. 206 ; Smith v. Jeffries, 9 Price, 257 ; Harrison's 
 case, Paley, Con v. 45, n. ; Sheldon v. Clark, 1 Johns. 513 ; U. S. ii. Hay ward, 
 2 Gall. 485 ; Gening v. The State, 1 McC. 573. See Doe v. Whitehead, 8 A. & 
 E. 571 ; cited ante, § 367, where this rule was held inapplicable. 
 
 s Under 3 & 4 W. 4, o. 15, § 2. 
 
 6 Morton v. Copeland, 16 Com. B. 517. 
 
346 RULES RESPECTING THE RIGHT TO BEGIN. [PART II. 
 
 of a discovery on his part.^ The same rule is recognised in the 
 Ecclesiastical Courts ; and, therefore, if proceedings be there in- 
 stituted against a clergyman for non-residence without licence or 
 exemption, the promoter of the suit need neither allege nor prove 
 that the defendant had not a licence, or was not resident on another 
 benefice.^ 
 
 § 378. The rules of law relating to the burthen of proof are § 349 
 obviously of great importance in all legal proceedings, especially 
 when viewed in connection with the doctrine of presumptions ; 
 but questions respecting their application most frequently arise at 
 Nisi Prius, on arguments concerning the right to begin? The 
 privilege of opening the case to the jury is frequently one of con- 
 siderable advantage, as it not only enables the party enjoying it 
 to create an impression in his favour, which it is difficult by 
 subsequent evidence to erase, but in the event of witnesses being 
 called by his opponent, it secures to him also the last word ; still, 
 cases sometimes occur where a defendant goes to trial relying 
 simply on the weakness of the plaintiff's case, and where, if 
 called upon to begin, he will instantly be defeated.* Hence it 
 follows, that the duty of beginning is seldom a matter of indiffer- 
 ence, but is generally regarded as an object which it is important 
 either to attain or to avoid, according to the circumstances. The 
 question, therefore, is frequently discussed vsdth much spirit ; and 
 as the principles which govern the right are difficult of apphca- 
 tion, and, moreover, are not very distinctly understood, the decisions 
 are alike numerous and conflicting. A lengthened examination of 
 these decisions would be misplaced in a work of this nature, but 
 
 ' R. V. Thiatlewood, 33 How. St. Tr. 691, per Abbott, C. J., in charge to the 
 Grand Jury. 2 Bhick v. Raokman, 5 Moo. P. C. R. 305, 314. 
 
 ^ On the hearing of appeals in equity the appellant always used to begin. 
 Williams v. Williams, 2 Law Rep., Ch. Ap. 15. 
 
 " Best " On Right to Begin," 27, 28 ; Edwards v. Jones, 7 0. & P. 633. This 
 was an action by tlie indorsee against the maker of a note ; the plea in sub- 
 stance amounted to want of consideration, and the plaintiff replied, as to part 
 of the sum claimed, that he gave consideration for the note, and as to the 
 residue, nolle prosequi. Held by Alderson, B., that on this issue the defendant 
 must begin, and as he had no witness, the plaintiff had a verdict. 
 
CHAP, in.] EULES EESPECTING THE EIGHT TO BEGIN. 347 
 
 perhaps a few general rules may be laid down, that will be found of 
 practical value. 
 
 § 379. The first general rule on this subject is, that the party § 350 
 on whom the onus prohandi lies,^ as developed on the record, must 
 begin,^ It has been sometimes asserted, that the right of beginning 
 belongs to the party on whom the affirmatiTO of the issue lies; 
 but this assertion, if literally understood, is by no means accurate, 
 since, as we have seen, it does not apply to cases where either the 
 affirmative allegation is supported by a legal presumption, or the 
 truth of the negative averment is pecuHarly within the knowledge 
 of the party who relies on it.^ Indeed, the rule as stated above 
 is subject to some exceptions, which it will be convenient here to 
 notice. And, first, if the defendant will admit at the trial the whole 
 prima facie case of the plaintiff, he will perhaps be entitled to 
 begin, provided he was not bound to have made this admission by 
 his pleading at an earlier period. For instance, if a party, claiming 
 premises as heir-at-law of the person last in possession, brings an 
 action of ejectment against a devisee under such person's will, the 
 defendant, as it seems, is entitled to begin, on admitting not only 
 that the plaintiff is heir, but that the ancestor, through whom he 
 claims, died seised of the estate.* 
 
 § 380. But this exception will be strictly confined to cases where § 351 
 the defendant admits the whole title of the plaintiff; and, therefore, 
 if a defendant in ejectment were to admit at the trial a will under 
 
 ' As to the best tests of the onus proband], see ante, § 365. 
 
 2 This rule is recognised in the Probate Division of the High Court, and 
 therefore where a husband petitioned for a restitution of conjugal rights, and 
 the wife answered by pleading his cruelty on which issue was joined, the 
 respondent was held entitled to begin ; Cherry v. Cherry, 1 Swab. & Trist. 319 ; 
 28 L. J., Pr. & Mat. 36, S. C. 
 
 3 Best " On Bight to Begin" 29. See ante, §§ 367, 376. 
 
 < Goodtitle v. Braham, 4 T. E. 498 ; Doe v. Brayne, 5 Com. B. 670—674 ; 
 Doe V. Barnes, 1 M. & Rob. 386, per Ld. Denman ; Doe v. Smart, id. 476, per 
 Gumey, B., after consulting Patteson, J. In this last case the defendant was 
 allowed to begin, though the plaintiff, as to part of the premises, was prepared 
 to prove that he was assignee of an outstanding term. See Rules of Sup. Ct,, 
 Ord. 3dx,, r. 15, cited ante, § 301, n, I, 
 
348 PLFP. SEEKING UNLIQUIDATED DAMAGES MUST BEGIN. [PART II. 
 
 which the plaintiff claimed, and were to rely on a subsequent devise 
 or codicil, he would not be allowed to begin ; because, in such case, 
 so far from admitting the whole title of the plaintiff, the defendant 
 would expressly deny a most material part of it ; for by setting up 
 a second will or codicil, he would in effect assert that his opponent 
 was not devisee at the time of the testator's decease.^ So, if the 
 defendant's title rests upon a conveyance from the ancestor,^ or if 
 he claims, even in part, under the ancestor's marriage settlement,^ 
 he cannot, by simply admitting the heirship of his opponent, and 
 his own possession, deprive the former of his right to begin, because 
 such an admission will not cover the entire title of the plaintiff. 
 So, where each party claimed as heir-at-law, and the defendant was 
 clearly the heir, if legitimate, his admission of the plaintiff's con- 
 ditional title was held insufficient to give him the iniative, because 
 the plaintiff, in order to recover, must prove his own title ; and 
 although in this particular case, the title might depend on the 
 defendant's legitimacy, the fact of legitimacy did not constitute the 
 direct issue.* 
 
 § 381. Another exception to the rule under discussion rests upon s 353 
 the broad principle of public convenience and justice, and provides 
 that the plaintiff shall begin in all actions where he seeks sub- 
 stantial and unliquidated damages, though the affirmative lie upon 
 the defendant. This doctrine was promulgated by a majority of the 
 judges many years back, as applicable to actions for libel, slander, 
 and injuries to the person ; ^ and the Court of Queen's Bench has 
 since extended its operation to actions of covenant and assumpsit, 
 and indeed, as it would seem, to all actions, where the plaintiff is 
 seeking to recover actual damages of an unascertained amount." 
 
 ' Doe V. Brayne, 5 Com. B. 655 ; overruling Doe v. Corljett, 3 Camp. 368, 
 and an anonymous case cited by Ld. Denman in Doe v. Barnes, 1 M. & Rob. 
 388. 2 Doe ^_ Tucker, M. & M. 536, per BoUand, B. 
 
 ' Doe V. Lewis, 1 C. & Kir. 122, per Maule, J. 
 
 " Doe V. Bray, M. & M. 166, per Vaughan, B. 
 
 ' Carter v. Jones, 6 C. & P. 64 ; 1 M. & Rob. 281, S. C. ; Mercer v. Wliall, 
 5 Q. B. 462, per Ld. Denman. It deserves notice tbat Parke, B., never assented 
 to this exception, but was always of opinion that " in all cases, he on whom the 
 burthen of proof lay ought to begin." 
 
 ' See Foley v. Tabor, 2 Post. & Fin. 663. 
 
CHAP. III.J EIGHT TO BEGIN WHEN DAMAGES ARE LIQUIDATED. 349 
 
 § 382. The case which establishes this important exception is § 354 
 that of Mercer v. Whall,^ and the language of Lord Denman, in 
 pronouncing the judgment of the court, well illustrates the subject. 
 After observing that " the natural course would seem to be, that 
 the plaintiff should bring his own cause of complaint before the 
 court and jury in every case where he has anything to prove, either 
 as to the facts necessary for his obtaining a verdict, or as to the 
 amount of damages to which he conceives the proof of such facts 
 may entitle him," ^ his Lordship proceeds thus: — " Li ejectment, 
 the defendant may entitle himself to begin, by admitting that the 
 plaintiff must recover possession unless the defendant can estabHsh 
 a certain fact in answer ; and if in an action for damages the damages 
 are ascertained, and the plaintiff has a primi facie case on which he 
 must recover that known amount and no more, unless the defendant 
 proves what he has affirmed in pleading, here is a satisfactory 
 ground for the defendant's proceeding at once to estabhsh that fact. 
 But if the extent of damage is not ascertained, the plaintiff is the 
 person to ascertain it ; and his doing so will have the good effect of 
 making even the defence, in a vast majority of cases, much more 
 easily understood for all who are intrusted with the decision."^ 
 
 § 383. This last exception does not extend to cases where the j 355 
 plaintiff seeks to recover a debt, or a liquidated demand in money ; * 
 because in such actions, unless a specific denial of the claim be 
 placed on the record, the plaintiff is not required to give any evidence 
 as to- its amount. Neither does the exception apply where the 
 damages sought to be recovered, though unliquidated, are obviously 
 nominal,' or where they are admitted by the defendant, so far as 
 
 ' 5 Q. B. 447. This was an action of covenant by a solicitor's clerk for im- 
 properly dismissing him, to which the defendant had pleaded, that the plaintiff 
 had been guilty of misconduct in the service. The court held that the plaintiff 
 was entitled to begin. ^ 5 Q. B. 458. 
 
 3 5 Q. B. 464, 465. 
 
 * Woodgate v. Potts, 2 C. & Kir. 457, per Parke, B. ; Fowler v. Coster, M. & 
 M. 241, per Ld. Tenterden ; 3 C. & P. 463, S. C. ; Bonfield v. Smith, 2 M. 
 & Rob. 519 ; 15 & 16 V., c. 76, § 93. 
 
 ' Hodges V. Holder, 3 Camp. 366, per Bayley, J. ; Jackson v. Hesketh, 2 
 Stark. E. 518, per id. 
 
356 
 
 350 WHEN PLAINTIFF MUST BEGIN. [PART II. 
 
 the amount is concerned/ or where they can be ascertained by mere 
 computation, as, for instance, where the action is brought on a bill 
 of exchange or a promissory note ; ^ or where the plaintiff will not 
 say whether or not he intends to proceed for substantial damages.^ 
 
 § 384. A second general rule respecting the right to begin is, 
 that if the record contains several issues, and the bwrthen of proving 
 any one of them lies on the plaintiff, he is entitled to begin, provided 
 he will undertake to give evidence upon it.* This rule wiU equally 
 prevail, though it clearly appears, as matter of calculation, that if 
 the defendant should eventually succeed on one of the issues which 
 he is bound to prove, the plaintiff will recover nothing on the issue 
 which lies upon him.' But the proviso at the end of the rule con- 
 stitutes a material part of it ; and, therefore, if to some special 
 count, claiming liquidated damages, the plaintiff adds the common 
 money counts, and the defendant, confessing and avoiding the 
 former, specifically denies the latter, this will not entitle the plaintiff 
 to begin, unless in fact he intends to rely on the common money 
 counts, and to adduce evidence in support of them, for the only 
 object of an opening is to explain to the jury the facts which are to 
 be proved by the witnesses.® 
 
 § 385. If several issues be joined, some of which he on either § 357 
 party, the plaintiff may, at his option, go into the whole case in the 
 first instance, or he may content himself with adducing evidence in 
 support of those issues which he is bound to prove, reserving the 
 
 * Tindall v. Baskett, 2 Fost. & Fin. 644, per Erie, C. J. 
 
 2 Cannam v. Farmer, 2 C. & Kii. 746 ; 3 Ex. E. 698, S. C. ; 15 & 16 V., 
 c. 76, § 94. 3 Chapman 1;. Eawson, 8 Q. B. 673. 
 
 * Rawlins v. Desborough, 2 M. & Rob. 328, per Ld. Denman. 
 
 * Cripps V. Wells, C. & Marsh. 489, per Rolfe, B. ; recognised in Booth v. 
 Millns, 15 M. & W. 669 ; 4 Dowl. & L. 52, S. C. 
 
 « Smart v. Rayner, 6 C. & P. 721, per Paike, B. ; Mills 11. Oddy, id. 728, per 
 id., overruling Homan v. Thompson, id. 717 ; Faith v. M'lntyie, 7 C. & P. 
 44, per id. ; Oakeley -o. Ooddeen, 2 Fost. & Fin. 656, per Byles, J. See Edge 
 «. Hillary, 3 0. & Kir. 43. There, to an action for goods sold, defendant 
 pleaded, except as to £150, the general issue, and as to that sum a special plea. 
 The plaintiff's particulars limited his demand to £150. Held by Ld. Campbell 
 that defendant should begin. 
 
CHAP. III.] WHEN PLAINTIFF MAY EESEEVE REBUTTING PROOF. 351 
 
 light of rebutting his adversary's proofs, in the event of the de- 
 fendant estahUshing a prima facie case with respect to the issues 
 which lie upon him.^ The latter course is the one which, in 
 practice, is most usually adopted, and the defendant may then have 
 a special reply on the plaintiffs fresh evidence, while the plaintiff 
 will be entitled to the general reply on the whole case. If, how- 
 ever, the plaintiff at the outset thinks fit to call any evidence to 
 repel the defendant's case, he will not be permitted to give further 
 evidence in reply ; for if such a privilege were allowed to the 
 plaintiff, the defendant, in common justice, might claim the same, 
 and the proceedings would run the risk of being extended to a very 
 inconvenient length.^ In one case, where the general issue and a 
 set-off were pleaded to an action on contract, the plaintiff was per- 
 mitted to prove certain debts due to him from the defendant, and to 
 reserve the proof of the remainder of his claim till evidence in sup- 
 port of the set-off had been given by the defendant ;^ but, although 
 the court refused a new trial in this case, it may well be doubted 
 whether such a course would now be allowed, without the mutual 
 consent of both parties. 
 
 § 386t However this may be, it is tolerably clear that where there § 358 
 is only one issue, the onus of proving which lies on the plaintiff, he 
 must put forth all his evidence in the first instance, and cannot rely 
 on a prima facie case, and, after that case has been shaken by the 
 defendant's proof, call other evidence to confirm it. Thus, in an 
 action by the indorsee of a bill against the acceptor, where issue was 
 raised on a plea denying the indorsement, the plaintiff was not 
 allowed to rest his case at first on proof of the indorser's hand- 
 writing, and after evidence for the defence had been given that he 
 was himself too poor to have discounted the bill, and had disclaimed 
 
 ' Formerly, wlieii either by pleading or notice, tlie defence was known, tlie 
 plaintiff was bound to open his whole case, Eees v. Smith, 2 Stark. R. 30 ; but 
 this practice, having been found inconvenient, has been abandoned ; Browne 
 V. Murray, Ey. & M. 254, per Abbott, C. J. ; Shaw v. Beck, 8 Ex. E. 392. See 
 Penn v. Jack, 1 Law Eep., Eq. 314. 
 
 2 Browne v. Murray, Ey. & M. 254, per Abbott, C. J. ; Sylvester v. HaU, id. 
 255, n. per id. 
 
 3 Williams v. Davies, 1 C. & M. 464. 
 
352 PBACTICE AS TO CALLING EYIDENCE IN REPLY. [PART II. 
 
 all knowledge of it, to prove that in fact he had discounted the 
 instrument.-' 
 
 § 387. In deciding upon the admissihility of evidence called in § 359 
 reply, regard must be had to the circumstances of the individual 
 case, and considerable latitude will necessarily be granted to the 
 judge in the exercise of his discretion.^ Thus, where a plaintiff in 
 ejectment made out a prima facie case as heir-at-law, which was 
 met by a vrill being proved for the defendant, he was permitted, in 
 reply, to put in a subsequent will whereby the estates claimed were 
 devised to himself; for although this will proved him to be entitled 
 to the premises as devisee, and thus set up a title different from 
 that on which he originally relied, it operated also as a revocation of 
 the former will, and thus demoKshed the defendant's case.^ So, in 
 an action on the case for negligent driving, where the plaintiff, as con- 
 firmatory evidence of the defendant's having committed the injury, had 
 offered proof that about the time- in question, the defendant was at 
 Layton where the collision took place, and the defendant had called 
 witnesses to show that he was then at Richmond, Lord Denman 
 refused to exclude further witnesses, who were tendered by the 
 plaintiff to prove that the defendant was not at Richmond, but at 
 Layton, when the accident occurred.* This case certainly carries 
 the privilege of adducing evidence in reply to its extreme limit ; for 
 although the plaintiff was at liberty to disprove the alibi by showing 
 that the defendant was not at Richmond, yet when the witnesses 
 went on to prove that he was at Layton, they not only gave evidence 
 which ought to have been submitted to the jury in the first instance, 
 but confirmed that which was actually given in chief, and which 
 consequently should have then been exhausted.' Where the issue 
 turned on the soundness of a horse, which was exhibited to the jury 
 during the defendant's case, the plaintiff was not allowed to recall 
 
 1 Jacobs V. Tarleton, 11 Q. B. 421. See Wright v. Wilcox, 19 L. J., C. P. 
 333 ; 9 Com. B. 650, S. C. 
 
 2 Wright V. Wilcox, 19 L. J., C. P. 333 ; 9 Com. B. 650, S. C. 
 
 ' Doe V. Gosley, 2 M. & Roh. 243, per Ld. Denman. Sed qu. as to the 
 present practice. See Rules of Sup. Ct., Ord. xix., rr. 14, 19, cited ante, § 301. 
 * Briggs V. Aynsworth, 2 M. & Rob. 168. 
 ^ See note a to S. C. pp. 109, 170. 
 
CHAP. III.] RULE RESPECTING THE EIGHT TO REPLY. 353 
 
 his Teterinary witnesses, who had attended the view, to give their 
 opinion respecting his soundness, these gentlemen having had an 
 opportunity of inspecting the horse before the plaintiff's case had 
 closed.^ 
 
 § 388. The question respecting the right to begin is a matter of § 360 
 practice and regulation upon which the presiding judge must 
 exercise his discretion ; and the court will not interfere with his 
 decision, unless it be clearly proved, not only that the ruling on this 
 point was manifestly wrong, but that it has occasioned substantial 
 injustice.^ It seems that the court will not grant a new trial, 
 merely because the judge has either admitted evidence in reply, 
 which should in strictness have been produced in support of the 
 plaintiff's original case,^ or has prevented the plaintiff from calling 
 witnesses in anticipation of the defendant's case, provided such wit- 
 nesses be subsequently examined in reply.* 
 
 § 389. The right to begin draws after it, both in civil and § 361 
 criminal proceedings, the right to reply, whenever the adversary 
 adduces evidence to the jury in support of his case ; ^ but the mere 
 commenting on a cash-book, which has been used to refresh the 
 memory of one of the adverse vdtnesses, or even a reference to parts 
 of this book, not looked at by such vrftness, will not entitle the 
 opposite counsel to reply ; ^ neither will the production of a paper, 
 which the judge has called for in order to satisfy his conscience.'^ If 
 in the course of th^ trial it shall become necessary for the defendant 
 
 1 Osbora v. Thompson, 2 M. & Rob. 254, per Erskine, J. 
 
 2 Brandford v. Freeman, 5 Ex. R. 734 ; Edwards v. Matthews, 16 L. J., Ex. 
 291. See, also, Bnrrell v. Nicholson, 1 M. & Rob. 306, per Ld. Demnan ; Bird 
 V. Higginson, 2 A. & E. 160 ; Huokman v. Fernie, 3 M. & W. 510, 511, 517 ; 
 Doe V. Brayne, 5 Com. B. 655 ; Booth v. MiUns, 15 M. & W. 671, n. ; 4 Dowl. 
 & L. 52, 54, n., S. C. ; Chapman v. Bmden, 9 C. & P. 717, per Coleridge, J. ; 
 Doe V. Rowlands, id. 736, per id. ; Mercer v. Whall, 5 Q. B. 447 ; Geach v. 
 Ingall, 14 M. & W. 98, 99, per Pollock, C. B. 
 
 3 Williams v. Davies, 1 C. & M. 465 ; 3 Tyr. 383, S. C. ; Doe v. Bower, 
 16 Q. B. 805. " Smith v. Marrahle, C. & Maish. 479. 
 
 ' Best " On The Bight to Begin," 85, and cases there collected. 
 « PuUen V. White, 3 C. & P. 434, per Best, C. J. 
 ? Dowling V. Finigan, 1 C. & P. 587, per Best, C. J. 
 
 A A 
 
354 WHEN PEOSECUTOE, ENTITLED tO EEPLY. [PAET II. 
 
 to call witnesses, for the purpose of informing the judge upon a 
 question respecting the admissibiHty of evidence, the plaintin s 
 counsel will not thereby be entitled to the last word, because the 
 e-vidence, in order to give this right, must be produced to the jury. 
 Where several prisoners are jointly indicted, and one of them calls 
 witnesses, the counsel for the prosecutor has a strict right to reply 
 generally, if the charge be a joint one, though, if the charges be 
 separate, as for stealing and receiving, he should confine his remarks 
 to the case of the party, for whom witnesses have appeared.^ " If the 
 only evidence called on the part of a prisoner is evidence to character, 
 although the counsel for the prosecution is entitled to the reply, it 
 wiU be a matter for his discretion whether he will use it or not. 
 Cases may occur in which it may be fit and proper to do so."^ 
 Whether the counsel for the plaintiff or the prosecution •mU be 
 entitled to reply, if the defendant, without adducing evidence, opens 
 new facts, is a point which is not yet clearly decided ; but the better 
 opinion is that no such right can be claimed, though the judge in 
 his discretion might, in a flagrant case, permit its exercise.* 
 
 § 390. On the trial oi public prosecutions, whether for felony or § I 
 misdemeanor, instituted by the Crown, the law officers of the 
 Crown, and, perhaps, those who represent them,^ are in strictness 
 
 1 Harvey v. Mitchell, 2 M. & Eob. 366, per Parke, B. ; Dover ■». Maestaer, 5 
 Esp. 96, per Ld. EllenlDoroiigh. See ante, § 23. 
 
 2 E. V. Hayes, 2 M. & Eob. 155, per Parke, B., and Coltman, J. ; E. v. 
 Blackburn, 6 Cox, 339, per Talfourd & Williams, Ja. ; E. v. Jordan, 9 C. & P. 
 118, per Williams, J. 
 
 ^ Eesolution of the judges, 7 C. & P. 676. 
 
 " Crerar v. Sodo, M. & M. 85, per Ld. Tenterden ; 3 C. & P. 10, S. C. See, 
 in favour of the right, E. v. Home, 20 How. St. Tr. 664 ; E. v. Bignold, D. & 
 E., N. P. 59, per Ahhott, C. J. ; 4 D. & E. 70, S. C. ; E. v. Carlile, 6 C. & P. 
 643, per Park, J. ; Best " On The Bight to Begin," 92—94 ; against it, Best " On 
 The Bight to Begin," 94—99 ; Faith v. M'Intyre, 7 C. & P. 46, per Parke, B. ; 
 Stephens v. Webb, 7 C. & P. 60 ; E. v. Abingdon, Pea. E. 236, per Ld. Kenyon ; 
 Naish V. Brown, 2 C. & Kir. 219, per Pollock, C. B. 
 
 ^ See, however, observations per Martin, B., in E. v. Christie, 1 Fost. & Fin. 
 75 ; 7 Cox, 506, S. C. It was there held that the privilege does not extend to 
 the Attorney-General of the County Palatine. Neither does it extend to a 
 prosecution directed by the Poor Law Board, E. v. Beckwith, 7 Cox, 505, per 
 Byles, J. But it does apply to Post-Office Prosecutions, and to the Solicitor- 
 General, as well as to the Attorney-General, E. v. Toakley, 10 Cox,' 406, per 
 
CHAP, m.] ATTORNEY- GENERAL ENTITLED TO REPLY. 355 
 
 entitled to reply, although no evidence be adduced on the part of the 
 defendant ; ^ but as this is a privilege, or rather a prerogative, which 
 stands opposed to the ordinary practice of the courts, the true friend 
 of justice will do well to watch with jealousy the parties who are 
 entitled to exercise it. Mr. Home, so long back as 1777, very pro- 
 perly observed, that the Attorney- General would be grievously em- 
 barrassed to produce a single argument of reason or justice on behalf 
 of his claim ; ^ and as the rule which precludes the counsel for the 
 prosecution from addressing the jury in reply, when the defendant 
 has called no witnesses, has been long thought to afford the best 
 security against unfairness in ordinary trials, this fact raises a 
 a natural suspicion that a contrary rule may have been adopted, and 
 may still be followed, in State prosecutions, for a different and less 
 legitimate purpose. It is to be hoped that, ere long, this question 
 will receive the consideration which its importance demands, and 
 that the Legislature, by an enlightened interference, vsdll intro- 
 duce one uniform practice in the trial of political and ordinary 
 offenders.' 
 
 Mellor, J. ; R. v. Barrow, id. 407. With respect to tlie Attorney-General of 
 the Prince of Wales, aee Att.-Gen. of P. of Wales v. Grossman, 4 H. & C. 568. 
 
 1 Eesolution of the judges, 7 C. & P. 676 ; R. o. Home, 20 How. St. Tr. 664, 
 pel Ld. Mansfield ; E. v. Marsden, M. & M. 439, per Ld. Tenterden. The same 
 unjust rule prevails in the Ex. Div. of the High Ct, in all cases where the 
 Crown is concerned. M. of Chandos v. Comrs. of Inland Rev., 6 Ex. E. 464 ; 
 2 L. M. & P. 311, S. C, -Djom. D. of Buckingham v. Conns, of Inland Rev. 
 
 2 20 How. St. Tr. 663. 
 
 ' Those who wish for further information respecting the subjects discussed 
 in this chapter are referred to the sensible and careful work of Mr. Best, " On 
 The Bight to Begin." 
 
 A A 2 
 
356 BEST EVIDENCE MUST BE PRODUCED. [V&S,T II. 
 
 CHAPTER IV. 
 
 BEST EVIDENCE. 
 
 § 391.^ The poueth rule, which governs the production of § 363 
 evidence, requires that the best evidence, of which the case in its 
 nature is susceptible, should always be presented to the jury. This 
 rule does not demand the greatest amount of evidence which can 
 possibly be given of any fact ; but its design is to prevent the intro- 
 duction of any, which, from the nature of the case, supposes that 
 better evidence is in the possession of the party. It is adopted for 
 the prevention of fraud ; for when better evidence is withheld, it 
 is only fair to presume, that the party has some sinister motive 
 for not producing it, and that, if offered, his design would be 
 frustrated.^ The rule thus becomes essential to the pure ad- 
 ministration of justice. In requiring the production of the best 
 evidence applicable to each particular fact, it is meant that no 
 evidence shall be received which is merely substitutionary in its 
 nature, so long as the original evidence is attainable.^ Thus, de- 
 positions are in general admissible only after proof that the parties 
 who made them cannot themselves be produced.* So, a preliminary 
 agreement, which has been followed up by the execution of a deed 
 of conveyance, cannot be admitted as evidence to show what parcels 
 were subsequently conveyed.^ But every title by deed must be 
 proved by the production of the deed itself, if it be within the power 
 
 1 Gr. Ev. § 82, in part. 
 
 2 See per Best, C. J., in Strother v. Barr, 5 Bing. 151 ; per Hoboyd, J., 
 in Brewster v. Sewell, 3 B. & A. 302 ; per Jervis, C. J., in Twyman ■». 
 Knowles, 13 Com. B. 224 ; Clifton v. U. S., 4 Howard, S. Ct. E. 247, 248, per 
 Nelson, J. 
 
 3 1 PMl. Ev. 418 ; 1 St. Ev. 500 ; Glassf. Ev. 266—278 ; Tayloe v. Riggs, 
 1 Pet. 591, 596 ; U. S. v. Eeybum, 6 Pet, 352, 367 ; Minor v. TiUotson, 7 Pet. 
 100, 101. 4 B, j^_ p, 239. 
 
 * WiUiams v. Morgan, 15 Q. B. 782. 
 
CHAP. IV.] BEST EVIDENCE MUST BE PRODUCED. 357 
 
 of the party ; for this is the best evidence of which the case is 
 susceptible ; and its non-prodnction raises a presumption that it 
 contains some matter of defeasance. If there be duplicate originals 
 of a deed, all must be accounted for, before secondary evidence can 
 be given of any one.^ 
 
 § 392. Again, if an instrument, which requires attestation to give § 363 
 it validity,^ be produced, its execution must in general be proved 
 by calling the subscribing witness ; ^ and if there be two such wit- 
 nesses, it will not be sufficient, so long as one of them is alive, sane, 
 free from permanent sickness, within the jurisdiction of the court, 
 and capable of being found by diligent inquiry, to prove the signa- 
 ture of the other who is dead ; for such evidence would merely raise 
 a presumption that the deceased had witnessed all which the law 
 requires for the due execution of the instrument ; whereas the sur- 
 viving witness would have been able to give direct proof. Such 
 direct testimony, therefore, might fairly be considered as evidence of 
 a better and higher nature than mere presumption arising from the 
 proof of the witness's handwriting.* 
 
 § 393. The rule under discussion excludes only that evidence § 364 
 which itself indicates the existence of more original sources of infor- 
 mation ; and, therefore, when there is no substitution of inferior 
 evidence, but only a selection of weaker, instead of stronger, proofs, 
 *or an omission to supply all the proofs capable of being produced, 
 the rule is not infringed.^ For instance, where an instrument is 
 required to be attested by two witnesses, it is only necessary, — 
 excepting in the case of wills relating to real estate, — to call one 
 of them, though the other may be at hand.^ Even the previous 
 
 1 Alivon V. Furnival, 1 C. M. & R. 292, per Parke, B. 
 
 2 See 17 & 18 V., o. 125, § 26 ; and 19 & 20 V., c. 102, § 29, Ir. 
 
 3 Bowman v. Hodgson, 1 Law Eep., P. & D. 362 ; 36 L. J., Pr. & Mat. 124, 
 S. C. 
 
 ' Wright V. Doe d. Tatham, 1 A. & E. 21, 22, per Tindal, C. J. 
 
 * 1 Ph. Ev. 418. See Alfonso v. U. S., 2 Story E. 421, 426. 
 
 6 Andrew v. Motley, 12 Com. B., N. S. 526 ; Belbin v. Skeats, 27 L. J., Pr. 
 & Mat. 56 ; 1 Swab. & Trist. 148, S. C. ; Forster v. Forster, 33 L. J., Pr. & 
 Mat. 113 ; Ansty v. Dowsing, 2 Str. 1253 ; B. N. P. 264 ; Andrew v. Motley, 
 12 Com. B., N; S. 527, per Byles, J. ; Gresl. Ev. 120, 122, 123. 
 
358 PRIMARY AND SECONDARY EVIDENCE DISTINCTION. [PART II. 
 
 examination of a deceased subscribing witness, if admissible on other 
 grounds, may supersede the necessity of calUng the survivor.^ So, 
 in proof or disproof of handwriting, or in proof of the contents of 
 a letter which cannot be produced, it is not necessary to call the 
 supposed writer.^ Even where it is necessary to prove negatively 
 that an act was done without the consent, or against the will, of 
 another, the person whose will or consent is denied, need not, as we 
 have seen, be himself called.^ 
 
 § 394.* This rule naturally leads to the division of evidence into § 365 
 PRIMARY and SECONDARY. Primary evidence is what has been just 
 mentioned as the best or highest evidence, or, in other words, it is 
 that kind of proof which, in the eye of the law, affords the greatest 
 certainty of the fact in question. Until it is shown that the pro- 
 duction of this evidence is out of the party's power, no other proof 
 of the fact is in general admitted. All evidence falling short of 
 this in its degree is termed secondary. The question whether 
 evidence is primary or secondary has reference to the nature of the 
 case in the abstract, and not to the peculiar circumstances under 
 which the party, in the particular cause on trial, may be placed. 
 It is a distinction of law, and not of fact ; referring only to the 
 quality, and not to the strength of the proof. Evidence, which 
 carries on its face no indication that better remains behind, is not 
 secondary, but primary. , 
 
 § 395.^ But though aU information must, if possible, be traced § 366 
 to its fountain head, yet if there be several distinct sources of 
 information of the same fact, it is not in general necessary to 
 
 1 "WrigM v. Doe i. Tatham, 1 A. & E. 3. 
 
 2 R. V. Hurley, 2 M. & Rob. 4V3 ; Hughes' case, 2 East, P. 0. 1002 ; M'Guire's 
 case, id. ; R. v. Benson, 2 Camp. 508 ; Liebman v. Pooley, 1 Stark. R. 16V ; 
 Bank Prosecutions, R. & R. 378. 
 
 3 Ante, § 371 ; R. ■». Hazy, 2 C. & P. 458 ; R. v. AUen, 1 Moo. 0. C. 154 ; R. 
 V. Hurley, 2 M. & Rob. 473, where it was held that, on an indictment for forging 
 a cheque, the party, whose name is supposed to be forged, need not be called, 
 either to disprove the handwriting, or to show that he did not authorise any 
 other party to use his name. "i Gr. Ev. § 84, in part. 
 
 * Gr. Ev. § 84, as to first four lines. 
 
CHAP. IV.] CONTENTS OF DOCUMENTS NOT PEOTAELE BY PAEOL. 359 
 
 show that they have all been exhausted, before recourse can be 
 had to secondary evidence with respect to one of them.^ For in- 
 stance, if it be requisite to prove that a collector, who is a stranger 
 to the suit, has received certain sums of money, that fact may 
 obviously be established by calling, either the collector himself, or 
 the parties who paid him, and both these modes of proof are 
 equally primary. But suppose the collector be dead ; in this case 
 the only primary evidence is the testimony of the persons from 
 whom the money was received. Still the law does not require the 
 production of these persons, but, on proof of the collector's death, 
 it will admit any entries in his book acknowledging the receipt, 
 though such entries are merely secondary evidence of the fact in 
 issue ; and if the book be in the hands of the opposite party, who, 
 after notice, refuses to produce it, even secondary evidence of its 
 contents will be admissible.^ The distinction between this case, 
 and that of the two subscribing witnesses to an instrument, — 
 where, as we have seen,^ proof must be given that both the wit- 
 nesses are unable to be called, before evidence of the handwriting 
 of one of them can be received, — seems to rest on this, that the 
 attesting witnesses are either rendered necessary by statute, or at 
 least have been solemnly chosen by the parties, as the persons on 
 whose united testimony they wish to rely, and, consequently, so 
 long as one of them can be called, secondary evidence respecting the 
 other cannot be admitted. 
 
 § 396.* The cases which most frequently call for the application § 367 
 of the rule now under consideration, are those which relate to the 
 substitution of oral for written evidence ; and the general rule of 
 law with respect to this subject is, that the contents of a written 
 instrument, which is capable of being produced, must be proved by 
 the instrument itself, and not by parol evidenced This rule, which 
 
 ' Cutbush V. Gilbert, 4 Serg. & E. 555 ; U. S. v. Gibert, 2 Sunm. 19, 80, 81 ; 
 1 Ph. Ev. 421. 
 
 2 Middleton v. Melton, 10 B. & C. 322, 327, 328, per Bayley and Parke, Js. ; 
 Barry v. Bebbington, 4 T. E. 514. 3 j^^te, § 392. 
 
 ■* Gr. Ev. § 85, as to first three lines. 
 
 ^ The Queen's case, 2 B. & B. 289. 
 
360 CONTENTS OF DOCUMENTS NOT PROVABLE BY PAROL. [PART U. 
 
 is as old as any part of the common law of England, has ever been 
 regarded with favour, and mentioned with approbation by the 
 judges. "I^ have always," said Lord Tenterden, "acted most 
 strictly on the rule, that what is in writing shall only be proved 
 by the writing itself. My experience has taught me the extreme 
 danger of relying on the recollection of witnesses, however honest, 
 as to the contents of written instruments ; they may be so easily 
 mistaken, that I think the purposes of justice require the strict 
 enforcement of the rule."^ Lord Wynford, also, in another case 
 observes : "I seldom pass a day in a Nisi Prius court without 
 wishiag that there had been some written statement evidentiary of 
 the matters in dispute. More actions have arisen, perhaps, from 
 want of attention and observation at the time of a transaction, from 
 the imperfection of human memory, and from witnesses being too 
 ignorant, and too much under the influence of prejudice, to give a 
 true account of it, than from any other cause. There is often a 
 great difficulty in getting at the truth by means of parol testi- 
 mony. Our ancestors were wise in making it a rule, that in all 
 cases the best evidence that could be had should be produced ; and 
 great writers on the law of evidence say, if the best evidence be 
 kept back, it raises a suspicion that, if produced, it would falsify 
 the secondary evidence on which the party has rested his case. 
 The first case these writers refer to as being governed by this rule 
 is, that where there is a contract in writing, no parol testimony can 
 be received of its contents, unless the instrument be proved to have 
 been lost."^ One of the main reasons for the adoption of this rule 
 is, that the court may acquire a knowledge of the whole contents of 
 the instrument, which may have a very different effect from the 
 statement of a part.* 
 
 § 397. It cannot be denied that these authorities and reasons § 368 
 are entitled to the greatest weight, and the rule in general is un- 
 doubtedly a wise one ; but those who watch its practical working 
 must be strangely prejudiced in its favour, if they are blinded to 
 the cruel injustice which a strict observance of it too frequently 
 
 ^ Gr. Ev. § 88, in part. 2 Vincent v. Cole, M. & M. 258. 
 
 2 Strotlaer v. Barr, 5 Bing. 151. ■< The Queen's case, 2 B. & B. 287. 
 
CHAP, rv.] WANT OP PROPER STAMP, HOW CtfRED AT TRIAL. 361 
 
 entails upon parties, in consequence of the stamp laws.^ The 
 judges, it is true, are wont to show no great favour to stamp objec- 
 tions ; and some years ago they promulgated a rule, that, unless 
 the want or insufficiency of a stamp be pointed out at the earliest 
 possible period, that is, as soon as the document is tendered in 
 evidence, the objection will not be entertained.^ This rule is of 
 questionable policy ; for although it may occasionally promote sub- 
 stantial justice, it has an obvious tendency to foster sharp practice. 
 Modern legislation has grappled with the evil in a more straightfor- 
 ward manner, and has done much to alleviate the oppressive opera- 
 tion of the stamp laws, so far as the administration of justice is 
 concerned. In the criminal courts, no objection can now be taken 
 to the admissibility of any document in evidence for want of a suffi- 
 cient stamp ; ^ and in the civil courts an attempt has been made, 
 as the Common Law Commissioners express it,* "to reconcile the 
 claims of justice with the interests of the revenue," by enabling 
 all such instruments as may be stamped after execution to be re- 
 ceived in evidence, though unstamped, or insufficiently stamped, if 
 the party who tenders them is prepared at the trial to pay to 
 the officer of the court the proper duty and penalty.^ The Common 
 
 1 See per Ld. Tenterden, in Reid.i;. Batte, M. & M. 414. 
 
 2 EoMnson v. Ld. Vernon, 7 Com. B., N. S. 235. See ante, § 309. 
 
 3 33 & 34 v., c. 97, § 17. 
 " 2nd Rep. p. 26. 
 
 ' 33 & 34 v., c. 97, § 16, enacts, that " upon the production of an instrument 
 chargeable with any duty as evidence in any court of civil judicature in any 
 part of the United Kingdom, the officer, whose duty it is to read the instru- 
 ment, shaU call the attention of the judge to any omission or insufficiency of 
 the stamp thereon ; and if the instrument is one which may legally be stamped 
 after the execution thereof, it may, on payment to the officer of the amount of 
 the unpaid duty, and the penalty payable by law on stamping the same as 
 aforesaid, and of a further sum of one pound, be received in evidence, saving 
 all just exceptions on other grounds. The officer receiving the said duty and 
 penalty shall give a receipt for the same, and make an entry in a book kept for 
 that purpose of the payment and of the amount thereof, and shall communicate 
 to the Commissioners the name or title of the cause or proceeding in which, 
 and of the party from whom, he received the said duty and penalty, and the 
 date and description of the instrument, and shall pay over to the Receiver- 
 General of Inland Revenue, or to such other person as the Commissioners may 
 appoint, the money received by him for the said duty and penalty." 
 
362 ORAL TESTIMONY, WHEN WRITING REQUIRED. [PART II. 
 
 Law Procedure Act of 1854^ further enacts, in § 31,^ that "no 
 new trial shall be granted by reason of the ruling of any judge that 
 the stamp upon any document is sufficient, or that the document 
 does not require a stamp ; " and this provision, — which impliedly 
 restrains a judge at Nisi Prius from reserving for the court any 
 question respecting the sufficiency of the stamp on a document 
 admitted by him at the trial,' — will doubtless be productive of 
 much benefit to the suitor, by relieving him from the annoyance 
 and cost of a second inquiry into a matter, which cannot have any 
 possible connection with the real question in dispute. 
 
 § 398. Keturning now to the rule, which requires the contents of § 369 
 a document to be proved by the document itself, if its production be 
 possible, it will be found that* the cases on the subject may be 
 arranged into three classes ; the ^rsiC class relating to those instru- 
 ments which the law requires to be in writing ; the second, to those 
 contracts which the parties have put in writing ; and the third, to 
 all other writings, the existence or contents of which are disputed, 
 and which are material to the issue.' 
 
 § 399.^ And, Jirst, oral evidence cannot be substituted for any § 370 
 instrwnent which the law requires to be in writing ; such as records, 
 public and judicial documents, official examinations, deeds of con- 
 veyance of lands, wills, other than nuncupative, acknowledgments 
 under Lord Tenterden's Act, promises to pay the debt of another 
 person, and other writings mentioned in the Statute of Frauds. 
 In all these cases the law having required that the evidence of the 
 transaction should be in writing, no other proof can be substituted 
 for that, so long as the writing exists, and is in the power of the 
 party. Thus, for example, parol evidence is inadmissible to prove 
 
 1 17 & 18 v., c. 125. 
 
 2 Tlie Irish. Act, 19 & 20 V., c. 102, contains in § 37 a similar provision. 
 
 ' Siordet v. Kuczinski, 17 Com. B. 251 ; Tattersall v. Feamley, id. 368 ; 
 Cory 1). Davis, 14 Com. B., N. S. 370. * Gr. Ev. § 85, in part. 
 
 ' Tlie question how far witnesses may be cross-examined as to written state- 
 ments made by them without producing the writings, will be discussed here- 
 after. See post, § 1446, et seq. 
 
 ^ Gr. Ev. § 86, as to first six lines. 
 
CHAP. IV.] ORAL TESTIMONY, WHEN INADMISSIBLE. 363 
 
 at what sittings or assizes a trial at Nisi Prius came oii,^ or even 
 tliat it took place at all ; but the record, or at least the postea, 
 must be produced.^ So, the date of a party's apprehension for a 
 particular offence cannot be shown by parol, the warrant for ap- 
 prehension or committal being superior evidence.^ So, whenever 
 the testimony of a witness is required by law to be reduced into 
 writing, — as, for instance, when it is taken by depositions, either 
 before an Examiner of the Court, or before a magistrate on an 
 indictable charge, — the writing becomes in all subsequent proceed- 
 ings, whether civil or criminal, the best evidence of what the 
 witness has stated, and parol proof on the subject is consequently 
 excluded in the first instance.* So, also, parol evidence cannot be 
 received of the statement of a prisoner before the magistrate, 
 where the examination has, in conformity with the Act of 11 & 12 
 v., c. 42, in England, or the Act of 14 & 15 V., c. 93, in Ireland, 
 been reduced into writing, and subscribed, and returned by the 
 justice.' 
 
 § 400. If, however, the written examination be excluded for § 371 
 informality,^ — other than for having been taken on oath, in which 
 case the confession is inadmissible as not having been voluntarily 
 made,'' — or if it be clearly proved* that the statement was not 
 reduced into writing, parol evidence is admissible to show what 
 was said by the prisoner, for such evidence is offered, not in sub- 
 
 ' Thomas v. Ansley, 6 Esp. 80, per Ld. EUenborougli ; E. v. Page, id. 83, per 
 Ld. Kenyon ; as explained in Whitaker ■». Wisbey, 21 L. J., C. P. 116; 12 
 Com. B. 52, S. C, cited ante, § 85. 
 
 2 B. N. P. 243 ; E. v. lies, Hard. 118 ; E.d. Browne, M. & M. 319; 3 C. & P. 
 572, S. C. 
 
 3 E. v. PliiUips, E. & E. 369. 
 
 ' Leach v. Simpson, 5 M. & W. 309 ; post, § 416. 
 
 * E. 1). Fearshiie, 1 Lea. 202 ; E. v. Jacobs, id. 309. See post, § 893, et seq. 
 
 « E. V. Eeed, M. & M. 403, per Tindal, C. J. ; E. v. Christopber, 2 C. & Kir. 
 994 ; 1 Den. 536, S. C. ; post, § 416. 
 
 ? E. ■!;. Wheeley, 8 C. & P. 250, per Alderson, B. ; E. v. Eivers, 7 0. & P. 
 177, per Park, J. 
 
 8 See Parsons v. Brown, 3 C. & Kir. 295, where Jervis, C. J., held, that the 
 court could not, in the absence of positive evidence, presume that examinations 
 before justices on a charge of felony were not taken down in writing, so as to 
 let in parol evidence. 
 
364 OEAL TESTIMONY, WHEN CONTEACT IN WEITING. [PAET II. 
 
 stitution of the official document, since no such document in that 
 case exists, but as the best evidence which the circumstances 
 admit of being produced. So, if the prisoner was examined on 
 two occasions, or with reference to two offences, and the exami- 
 nation, signed by the magistrates, relates only to what occurred on 
 one occasion,^ or with respect to one offence,^ the prosecutor may 
 call any party, who can speak to statements made by the prisoner 
 in that part of the inquiry not included in the written examination. 
 In like manner, if a witness, having given a written deposition in 
 a cause, has afterwards testified orally in court, parol evidence 
 may, in the event of his death, be given of his viva voce testimony 
 notwithstanding the existence of the deposition ; ^ for, in this last 
 case, as two independent sources of information exist, the party 
 who relies on the evidence may, at his discretion, have recourse to 
 either. 
 
 § 401.* In the second place, oral proof cannot be substituted § 372 
 for the written evidence of any contract which the parties have put 
 in writing. Here the written instrument may be regarded, in some 
 measure, as the ultimate fact to be proved, especially ia the case 
 of negotiable securities ; and in all cases of written contracts, 
 the writing is tacitly considered by the parties themselves as the 
 only repository and the appropriate evidence of their agreement. 
 The written contract is not collateral, but is of the very essence 
 of the transaction ; ^ and consequently, in all proceedings, civil or 
 
 1 R. V. Wilkinson, 8 C. & P. 662, per Parke, B., and Littledale, J. ; R. ■,;. 
 Christopher, 2 0. & Kir. 994 ; 1 Den. 536, S. C. 
 
 2 R. V. Harris, 1 Moo. C. G. 338. 
 
 3 Tod V. E. of Winchelsea, 3 C. & P. 387, per Ld. Tenterden. 
 " Gr. Ev. § 87, in part. 
 
 * See R. v. Castle Morton, 3 B. & A. 590, per Abhott, C, J. The principles 
 on which a document is deemed part of the essence of any transaction, and 
 consequently the hest or primary proof of it, are thus explained by Domat : — 
 " The force of written proof consists in this : men agree to preserve by writing 
 the remembrance of past events, of which they wish to create a memorial, 
 either with a view of laying down a rule for their own guidance, or in order to 
 have, in the instrument, a lasting proof of the truth of what is written. Thus 
 contracts are written, in order to preserve the memorial of what the contracting 
 parties have prescribed for each other to do, and to make for themselves a fixed 
 and immutable law, as to what has been agreed on. So, testaments are written. 
 
CHAP. IV.j ORAL TESTIMONY, WHEN LEASE EXISTS. 365 
 
 criminal, in which the issue depends in any degree upon the terms 
 of a contract, the party whose witnesses show that it was reduced 
 to writing, must either produce the instrument, or give some good 
 reason for not doiifg so. Thus, for example, if in an action of eject- 
 ment against an overholding tenant, or in an action for the use and 
 occupation of real estate, in should appear, either on the direct or 
 cross-examination of the plaintiff's witnesses, that a written con- 
 tract of tenancy has heen signed, the plaintiff must either pro- 
 duce it, or account for its absence.^ So, if a landlord were to bring 
 an action against a tenant for rent and non-repair, and it should 
 appear that the parties had agreed by parol that the tenant should 
 hold the premises on the terms contained in a former lease between 
 the landlord and a stranger, a nonsuit would be directed, unless 
 this lease could be produced.^ 
 
 § 402. The same strictness in requiring the production of the § 373 
 written instrument has prevailed, where the question at issue was 
 simply what amount of rent was reserved by the landlord,^ or 
 who was the actual party to whom a demise had been made,* or 
 under whom the tenant came into possession ; ^ and in an action 
 for the price of labour performed, where it appeared that the work 
 was commenced under an agreement in writing, but the plaintiff's 
 
 in order to preserve tlie remem'branoe of -what the party, wlio has a right to 
 dispose of his property, has ordained concerning it, and therehy to lay down a 
 rule for the guidance of his heir and legatees. On the same principle are 
 reduced into writing all sentences, judgments, edicts, ordinances and other 
 matters, which either confer title, or have the force of law. The writing pre- 
 serves unchanged the matters intrusted to it, and expresses the intention of the 
 parties hy their own testimony. The truth of written acts is estahlished hy 
 the acts themselves, that is, hy the inspection of the originals." — See Domat's 
 Civ. Law, Liv. 3, tit. 6, § 2, as translated in 7 Monthly Law Mag. p. 73. 
 
 1 Brewer v. Palmer, 3 Esp. 213, per Ld. Eldon ; Fenn v. Griffith, 6 Bing. 
 533 ; 4 M. & P. 299, S. C. ; Henry v. M. of Westmeath, Ir. Cir. E. 809, per 
 Eichaids, B. ; Thunder v. Warren, 8 Ir. Law E. 181 ; Eudge v. M'Carthy, 
 4 id. 161. 
 
 2 Turner v. Power, 7 B. & C. 625 ; M. & M. 131, S. C. 
 
 3 E. V. Merthyr Tidvil, 1 B. & Ad. 29 ; Au.gustien v. ChalUs, 1 Ex. E. 280, 
 where Alderson, B., ohserves, " you may prove by parol the relation of landlord 
 and tenant, hut without the lease you cannot teU whether any rent was due." 
 
 * E. V. Eawden, 8 B. & C. 708 ; 3 M. & E. 426, S. C. 
 ' Doe V. Harvey, 8 Bing. 239 ; 1 M. & So. 374, S. C. 
 
366 DEAL TESTIMOKY IN CLAIM FOB EXTEA WORK. [PART II. 
 
 claim was for extra work, it has been several times held that, in 
 the absence of positive proof that the work in question was entirely 
 separate from that included in the agreement, and was in fact done 
 under a distinct order, the plaintiff was bound to produce the 
 original document, since it might furnish evidence, not only that 
 the items sought to be recovered were not included therein, but 
 also of the rate of remuneration upon which the parties had 
 agreed.^ So, where an auctioneer delivered to a bidder, to whom 
 lands were let by auction, a written paper signed by himself, con- 
 tainiag the terms of the lease, the landlord was held bound, in 
 an action for use and occupation, to produce this paper duly stamped 
 as a memorandum of an agreement.^ 
 
 § 403. In Whitford v. Tutin,^ the plaintiff had been employed § 374 
 as secretary to the committee of a charitable society, pursuant to 
 a resolution entered in the book of the committee, of which, during 
 his service, he had had the care. The society being afterwards 
 dissolved, the plaintiff sued some of the members of the com- 
 mittee for his salary, and the court held that he was bound to 
 produce the book under which he was engaged ; for though he was 
 no party to the original resolution, which was entered into before 
 Ms appointment as secretary, yet by accepting the situation and 
 the benefit attached to it, he must be taken to have adopted the 
 terms contained in the resolution, and consequently was bound to 
 produce the book to show what those terms really were. Whether 
 in an action on the case for an injury done to the plaintiff's re- 
 version, his interest as reversioner may be proved by the parol 
 testimony of the tenant, when it appears that the premises are 
 
 > Vincent v. Cole, M. & M. 257, per Ld. Tenterclen ; 3 0. & P. 481, S. C. ; 
 Biixton V. Cornish, 1 Dowl. & L. 585 ; 12 M. & W. 426, S. C. ; Jones t>. HoweU, 
 4 DowL 176 ; Holbard v. Stephens, 5 Jui. 71, Bail C, per Williams, J. ; Parton 
 V. Cole, 6 Jur., Bail C. 370, per Patteson, J. See Reid v. Batte, M. & M. 413, 
 cited post, § 405 ; and Edie v. Kingsford, 14 Com. B. 759. 
 
 2 Eamsbottom v. Mortley, 2 M. & Sel. 445. See Ramshottom v. Tunbridge, 
 id. 434, cited post, § 406. See, also, Hawkins v. Waire, 3 B. & C. 697, where 
 Abbott, C. J., draws the distinction between papers signed by the parties or 
 their agents, and those which are unsigned. 
 
 ^ 10 Bing. 395 ; 4M..& Sc. 166, S. C. 
 
CHAP. IV.J DEAL TESTIMONY, WHEN ADMISSIBLE. B67 
 
 occupied under a written agreement, may admit of some doubt. 
 In one case it was held that the agreement must be produced ; ^ 
 but in a later case, where nominal damages only were recovered, 
 and independent proof was given of the premises having been de- 
 vised to the plaintiff, the judges of the Court of Common Pleas 
 were equally divided upon the question whether a nonsuit should 
 be entered, the plaintiff having omitted to produce the written 
 agreement between the occupier and himself.^ 
 
 § 404. The fact that, in cases of this kind, the writing is in the § 375 
 possession of the adverse party, does not change its character ; it 
 is still the primary evidence of the contract ; and its absence must 
 be accounted for by notice to the other party to produce it, or in 
 some other legal mode, before secondary evidence of its contents 
 can be received. In all these cases, however, if the plaintiff can 
 establish a prima facie case, without betraying the existence of a 
 written contract relating to the subject-matter of the action, he 
 cannot be precluded from recovering by the defendant subsequently 
 giving evidence that the agreement was reduced into writiag ; but 
 the defendant, if he means to rely on a written contract, must pro- 
 duce it as part of his evidence,^ and in the event of its turning out 
 to be unstamped, or insufficiently stamped, he must pay the duty 
 and penalty.* Nor, in such a case, will any material distinction be 
 recognised in the defendant's favour, though a notice to produce the 
 document has been served on the plaintiff.^ In an action of eject- 
 ment it has even been held, that the plaintiff could not be turned 
 round by one of his witnesses proving, on cross-examination, that 
 an agreement, which he only knew related in some way to the land 
 in question, was seen on that morning in the hands of the plaintiff's 
 
 ' Cotterill V. Kohhj, 4 B. & C. 465. 
 
 ^ Strother v. Barr, 5 Bing. 136, Best, C. J., and Bturough, J., in favour of 
 a nonsuit ; Park & Gaselee, Js., cent. ; 2 M. & P. 207, S. C. 
 
 3 Magnay v. Knight, 1 M. & Gr. 944 ; 2 Scott, N. E. 64, S. C. ; Stephens v. 
 Pinney, 8 Tannt. 327 ; 2 Moore, 349, S. C. ; Marston v. Dean, 7 C. & P. 13 ; 
 Fry V. Chapman, 5 Dowl. 265 ; R. v. Padstow, 4 B. & Ad. 208 ; 1 N. & M. 9, 
 S. C. ; Reed v. Deere, 7 B. & C. 261, 266. 
 
 ■• Ante, § 397. 
 
 * See cases cited in n. 3, supri. 
 
368 COLLATERAL WEITINGS NEED NOT BE PRODUCED. [PAET II. 
 
 solicitor, and was produced at a former trial between the same 
 parties ; for the court held that, in order to exclude parol eyidence 
 of the tenancy, it should appear that the agreement was between the 
 same parties, and was binding at the time of the second trial ; 
 neither of which facts was proved.^ 
 
 § 405.^ Where the written communication or agreement between § 376 
 the parties is collateral to the question in issue, it need not be pro- 
 duced. Thus, if during an employment under a written contract, a 
 verbal order is given for separate work, the workman can perhaps 
 recover from his employer the price of this work, without producing 
 the original agreement, provided he can show distinctly that the 
 items, for which he seeks remuneration, were not included therein ; 
 as, for instance, if it clearly appears, that whilst certain work was 
 in progress in the inside of a house under a written agreement, a 
 verbal order was given to execute some alterations or improvements 
 on the outside.* So, if the fact of the occupation of land is alone 
 in issue, without respect to the terms of the tenancy, this fact may 
 be proved by any competent parol evidence, such as payment of rent, 
 or the testimony of a witness, who has seen the tenant occupy, not- 
 withstanding it appears that the occupancy was under an agreement 
 in writing ;* and where a tenant holds lands under written rules, 
 but the length of his term is agreed on orally, the landlord need not 
 produce these rules in an action of trespass under a plea denying 
 his possession, because such plea only renders it necessary for the 
 plaintiff to prove the extent of the tenant's term, which, having been 
 agreed to by parol, does not depend upon the written rules.^ The 
 fact of partnership may also be proved by parol evidence of the acts 
 
 1 Doe V. Morris, 12 East, 237. 
 
 2 Gi. Ev. § 89, in part. 
 
 3 Reid V. Batte, M. & M. 413, per Ld. Tenterden ; commented on by Patte- 
 son, J., in Parton v. Cole, 6 Jur., Bail C. 370. See Vincent v. Cole, M. & M. 
 257, and cases cited ante, § 402, n. 1. 
 
 * E. V. Holy Trinity, Hull, 7 B. & C. 611 ; 1 M. & R. 444, S. p. ; Doe v. 
 Harvey, 8 Bing. 239, 242 ; 1 M. & Sc. 374, S. C. ; Spiers v. WiUison, 4 Cranch, 
 398 ; Dennett v. Crocker, 8 Greenl. 239, 244. See, however, the observations 
 of Best, C. J., on the case of R. v. Holy Trinity, in Strother v. Barr, 5 Bing. 
 158, 159 ; see, also, Twyman v. Knowles, 13 Com. B. 222. 
 
 * Hey V. Moorhouse, 6 Bing. N, C. 52 ; 8 Scott, 156, S. C. 
 
CHAP. IV.] COLLATERAL WEITINGS NEED NOT BE PEODUCED. 369 
 
 of the parties, without producing the deed ; ^ and the fact that a 
 party has agreed to sell goods on commission may he established by 
 oral testimony, though the terms respecting the payment of the 
 commission have been reduced into writing.^ 
 
 § 406. So where, at the time of letting some premises to the § ^'^'^ 
 defendant, the plaintiff had read the terms from pencil minutes, 
 and the defendant had acquiesced in these terms, but had not 
 signed the minutes ;^ — and where, upon a like occasion, a memo- 
 randum of agreement was drawn up by the landlord's bailiff, the 
 terms of which were read over, and assented to, by the tenant, who 
 agreed to bring a surety and sign the agreement on a future day, 
 but omitted to do so ;* — and where, in order to avoid mistakes, the 
 terms upon which a house was let, were, at the time of letting, 
 reduced to writing by the lessor's agent, and signed by the wife 
 of the lessee, in order to bind him ; but the lessee himself was 
 not present, and did not appear to have constituted the wife as 
 his agent, or to have recognised her act, further than by entering 
 upon and occupying the premises : ^ — and where lands were let by 
 auction, and a written paper was delivered to the bidder by the 
 auctioneer, containing the terms of the letting, but this paper was 
 never signed either by the auctioneer or by the parties ; ^ — and 
 where, on the occasion of hiring a servant, the master and servant 
 went to the chief constable's clerk, who in their presence, and by 
 their direction, took down in writing the terms of the hiring, but 
 neither party signed the paper, nor did it appear to have been 
 
 ' Alderson v. Clay, 1 Stark. E. 405, per Ld. Ellenborougli. 
 
 2 Whitfield v. Brand, 16 M. & W. 282. 
 
 3 Trewhitt v. Lamtert, 10 A. & E. 470 ; 3 P. & D. 676, S: C. See Drant 
 V. Brown, 3 B. & 0. 665 ; 5 D. & K. 582, S. 0. ; and BetlieU v. Blenoowe, 3 M. 
 & Gr. 119, where the court held that written proposals, made pending a negotia- 
 tion for a tenancy, might he admitted without a stamp, as proving one step in 
 the evidence of the contract. 
 
 " Doe V. Cartwright, 3 B. & A. 326. See HawMns v. Warre, 3 B. & C. 690 ; 
 5 D. & E. 512, S. 0. 
 
 5 E. V. St. Martin's, Leicester, 2 A. & E. 210 ; 4 K & M. 202, S. 0. 
 
 « Eamsbottom v. Tunhridge, 2 M. & Sel. 434. See Eamshottom v. Mortley, 
 2 M. & Sel. 445, cited ante, § 402. 
 
 B B 
 
370 WHEN PAEOL EVIDENCE NOT EXCLUDED BY WRITINGS. [PAET II. 
 
 read to them ; ^ — in all these instances the court held that parol 
 evidence was admissible, since the writings only amounted, either 
 to mere unaccepted proposals, or to minutes capable of conveying 
 no definite information to the court or jury, and they could not, 
 by any sensible rule of interpretation, be construed as memoranda, 
 which the parties themselves intended to operate as fit evidence of 
 their several agreements. 
 
 § 407. On the same principle it has frequently been held, that § 378 
 where the action is not directly upon the agreement for non- 
 performance of its terms, but is in tort, for its conversion, or de- 
 tention, or negligent loss, the plaintifi' may give parol evidence, 
 descriptive of its identity, without giving notice to the defendant 
 to produce the document itself;^ and even though the defendant 
 be willing to produce it without notice, the plaintiff is not bound 
 to put it in, but may leave his adversary to do so, if he think 
 fit, as part of his case.^ It has been well observed that, for the 
 purpose of identification, no distinction can be drawn between 
 written instruments and other articles ; — between trover for a pro- 
 missory note, and trover for a waggon and horses.* 
 
 § 408. The same rule prevails in criminal cases ; and, therefore, § 379 
 if a person be indicted for stealing a bill or other written instru- 
 ment, its identity may be proved by parol evidence, though no 
 notice to produce it has been served on the prisoner or his agent.' 
 If, however, the indictment be for forgery, and the forged instru- 
 ment be in the hands of the prisoner, the prosecutor must serve 
 him or his solicitor with a notice to produce it, before he can 
 ofi'er secondary evidence of its contents.^ One ground of difference 
 
 ' E. V. Wrangle, 2 A. & E. 514. See, for other instances, Ingram v. Lea, 2 
 Camp. 521 ; Dalison v. Stark, 4 Esp. 163 ; Wilson v. Bowie, 1 C. & P. 8. 
 
 2 Scott V. Jones, 4 Taunt. 865 ; How v. Hall, 14 East, 274 ; Bucher v. Jarratt, 
 
 3 B. & P. 143 ; Read v. Gamble, 10 A. & E. 597 ; Ross v. Bruce, 1 Day, 100 ; 
 The People v. Holbrook, 13 Johns. 90 ; M'Lean v. Hertzog, 6 Serg. & E. 154. 
 These cases overrule Cowan v. Abrahams, 1 Esp. 50. 
 
 3 Whitehead v. Scott, 1 M. & Eob. 2, per Ld. Tenterden. 
 ■• Jolley V. Taylor, 1 Camp. 143, per Sir J. Mansfield. 
 
 '^ E. V. Aickles, 1 Lea. 294, 297, n. a., 300, n. a. 
 
 •■' E. V. Haworth, 4 C. & P. 254, per Parke, J. ; R. ii. Fitzsimons, L E 
 
 4 C. L. 1. 
 
CHAP. rV.J WHEN PAROL EVIDENCE EXCLUDED BY WHITINGS. 371 
 
 between these two cases appears to be, that in the first it was 
 always sufficient, both in the indictment and the proof, to describe 
 in very general terms the instrument stolen, whereas in the case 
 of forgery, the prosecutor, under the old law,^ was often required 
 to enter into a minute description of the document alleged to have 
 been forged.^ But the main reason why parol evidence is admis- 
 sible in a case of larceny, though inadmissible in a case of forgery, 
 is, that a person charged with stealing an instrument must know, 
 from the very nature of the accusation, that he will be called upon 
 to produce it, while an indictment for forgery furnishes no such 
 intimation ; and it will be presently seen, when the rules which 
 regulate the serving of notices to produce are discussed,' that this 
 is a material distinction. Indeed, it may well admit of a doubt, 
 whether all the cases cited in this and the preceding section, 
 wherein parol evidence has been received, do not rest on those rules, 
 rather than on the fact that the contents of the writings were 
 collateral to the questions in issue. 
 
 § 409.* In the third place, oral evidence cannot be substituted § 380 
 for any writing, the existence or contents of which are disputed, 
 and which is material to the issue between the parties, and is not 
 merely the memorandum of some other fact. Thus, a witness 
 cannot be asked whether certain resolutions were published in 
 the newspapers,^ neither can he be questioned as to the contents 
 of his account-books : ^ but in both these cases the papers and 
 the books, as being the best evidence, must be produced. So, 
 the primary proof of the publication of an opera is the production 
 of the printed music, and the fact of publication cannot be proved 
 in the first instance by a witness who has merely seen the opera 
 in print, or heard parts of it played in society.''' So, doubts have 
 been entertained as to whether the contents of handbills, written 
 by dictation at a meeting of conspirators, could be proved by oral 
 
 > See, now, 24 & 25 V., c. 98, § 42, cited ante, § 291. 
 2 See Buclier v. Jairatt, 3 B. & P. 146, per CliamlDre, J. 
 ' Post, § 452. ^ Gr. Ev. § 88, in part. 
 
 ' R. V. O'Connell, Aim. & T. 163. « Id. 198. See post, § 462. 
 
 7 Boosey v. Davidson, 13 Q. B. 257. But see 10 Com. B. 696, per Jervis, 
 C.J. 
 
 B u 2 
 
372 PABOL ADMISSIONS SUBSTITUTED FOR WEITINGS. [PAET II. 
 
 testimony.^ So, the fact of a person being rated to the relief of 
 the poor cannot be legally proved by the collector stating that 
 such person's name was on the rate,^ but either the rate-book 
 itself/ or at least a certified or examined extract from it,* must 
 be produced. So, a plaintiff cannot be asked on cross-examination 
 whether his name is written in a certain book described by the 
 questioner, unless a satisfactory reason be first given for the non- 
 production of the book itself.^ 
 
 § 410. In stating that oral testimony cannot be substituted for § 381 
 any writing included in either of the three classes above men- 
 tioned, a tacit exception must be made in favour of the parol 
 admissions of a party, and of his acts amounting to ad/missions, 
 both of which species of evidence are always received as primary 
 proof against himself and those claiming under him, although 
 they relate to the contents of a deed or other instrument, which 
 are directly in issue in the cause.® " The reason," says Mr. 
 Baron Parke, "why such statements or acts are admissible, with- 
 out notice to produce, or accounting for the absence of the written 
 instrument, is, that they are not open to the same objection which 
 belongs to parol evidence from other sources, where the written 
 evidence might have been produced ; for such evidence is excluded 
 from the presumption of its untruth, arising from the very nature 
 of the case, where better evidence is withheld ; whereas, what a 
 
 1 R. V. TMstlewood, 33 How. St. Tr. 756—759. See post, § 417. 
 
 2 Justice V. Elstob, 1 Fost. & Fin. 256. 
 
 ' R. V. CoppuR, 2 East, 25, recognised by Patteson, J., ia R. v. Staple Fitz- 
 paiae, 2 Q. B. 494. " The Poor Rate Assessment and Collection Act, 1869," 
 32 & 33 v., c. 41, enacts, in § 18, that " the production of the book purporting 
 to contaia a poor-rate, with the allowance of the rate by the justices, shaU, if 
 the rate is made in the form prescribed by law, be primS facie evidence of the 
 due making and pubKcation of such rate." 
 
 " Justice V. Elstob, 1 Fost. & Fin. 256. 
 
 6 Darby v. Ouseley, 1 H. & N. 1. 
 
 « Earle v. Pioken, 5 0. & P. 542, per Parke, B. ; NewhaU v. Holt, 6 M. & W. 
 662, per id. ; Slatterie v. Pooley, id. 664, and cases cited in n. a, 669 ; BetheU 
 V. Blencowe, 3 M. & Gr. 119 ; Howard v. Smith, id. 254 ; 3 Scott, N. R. 574, 
 S. C. ; R. V. Welch, 2 0. & Kir. 296 ; 1 Den. 199, S. C. ; King v. Cole, 2 Ex. 
 E. 632 ; R. V. Basingstoke, 14 Q. B. 611 ; Boulter v. Peplow, 9 Com. B. 
 501—504. These oases overrule Ld. Tenterden's decision in Bloxam v. Elsie, 
 1 C. & P. 558 ; Ry. & M. 187, S. 0. See Fox v. Waters, 12 A. & E. 43. 
 
CHAP. IV.] PAROL ADMISSIONS — SLATTEEIB V. POOLEY. 373 
 
 party himself admits to be true, may reasonably be presumed to 
 be so."i 
 
 § 411. It may seem presumption to question the correctness § 382 
 of this reasoning and of the decisions founded upon it ; but the 
 author cannot refrain from observing that, although the admission 
 of a party may fairly be presumed to be true, the parol evidence 
 by which that admission is proved need by no means be so ; and, 
 indeed, such testimony is open to even greater objection than 
 applies to the ordinary case, where secondary evidence is pro- 
 duced, and the best evidence is withheld.^ When the admission 
 is made in court, it may very reasonably be allowed to render 
 needless the production of the written instrument to which it 
 refers, because the simple question in such case will be, is the 
 admission true ? and the rational presumption is, that a man will 
 not tell a falsehood, which is against his own interest ; but when 
 a witness is called to say that he has heard the opposite party 
 make a certain statement with respect to the contents of a written 
 instrument, the further question arises, was this statement really 
 made ? and to permit such parol evidence to be equally admis- 
 sible, in proof of the contents of the instrument, with the produc- 
 tion of the instrument itself, is to open a vast field for misappre- 
 hension, perjury, and fraud, which would be wholly closed, if 
 the salutary rule of law, requiring that what is in writing should 
 be proved by the writing itself, were here, as in other cases, to 
 prevail. It must be remembered, that Lord Tenterden, and Mr. 
 Justice Maule,^ — no mean authorities, — have emphatically expressed 
 opinions in support of the view here suggested;^ while Mr. Baron 
 Parke himself has declared that the parol evidence of admissions 
 may, in some cases, be quite unsatisfactory to a jury,* and that 
 too great weight ought never to be attached to such evidence, 
 
 1 Slatterie v. Pooley, 6 M. & W. 669. 
 
 2 " According to Slatterie v. Pooley, wliat A. states as to wliat B., a party, 
 has said respecting the contents of a document which B. has seen, is admissible, 
 ■vvliilst what A. states, respecting a document which he himself has seen, is not 
 admissihle, — although in the latter case, the chance of error is single, in the 
 former, double." Per reporter in 9 Com. B. 501, n. c. 
 
 3 Bloxam v. Elsie, Ey. & M. 188 ; Boulter v. Peplow, 9 Com. B. 501. 
 ■" Slatterie v. Pooley, 6 M. & W. 669. 
 
374 PAROL ADMISSIONS — CONFESSIO JURIS. [PART II. 
 
 since it frequently happens that the witness not only has mis- 
 understood what the party has said, but, by unintentionally alter- 
 ing a few of the expressions really used, has given to the statement 
 an effect completely at variance with what was intended.^ 
 
 § 412. Since the above observations were written, the subject § 383 
 has undergone much discussion in Ireland,^ where the judges 
 have not hesitated to declare their disapproval of the principles 
 advanced in Slatterie v. Pooley.^ " The doctrine laid down in 
 that case," said Chief Justice Pennefather, "is a most dangerous 
 proposition ; by it a man might be deprived of an estate of 
 10,000L per annum derived from his ancestors through regular 
 family deeds and conveyances, by producing a witness, or by one 
 or two conspirators, who might be got to swear that they heard the 
 defendant say he had conveyed away his interest therein by deed, 
 or had mortgaged, or had otherwise encumbered it ; and thus, by 
 the facility so given, the widest door would be opened to fraud, 
 and a man might be stripped of his estate through this invita- 
 tion to fraud and dishonesty."* The case which called forth these 
 remarks was an action for use and occupation. At the trial, 
 one of the plaintiff's witnesses, after proving the occupation of 
 the premises by the defendant, acknowledged in cross-examination 
 the existence of a written agreement ; and the court held, that 
 this agreement must be produced, though the defendant had ad- 
 mitted that he was tenant at a particular rent. 
 
 § 413. Whether the doctrine propounded in Slatterie v. Pooley § 384 
 would be held to extend to records, as well as to deeds and 
 ordinary writings, and whether it would embrace the case of a 
 confessio juris, as well as that of a confessio facti, may admit of 
 some doubt. In one case before Lord EUenborough, the admis- 
 sion of a party that he had been discharged under the Insolvent 
 Debtors Act, was held insuiScient evidence of a valid discharge, 
 
 1 Note to Earle v. Picken, 5 C. & P. 542. 
 
 ^ Lawless v. Queale, 8 Jr. Law R. 382. See, also, Ld. Gosford v. 'Rohh, id. 
 217 ; and Parsons v. Purcell, 12 id. 90. ^ g M. & W. 664. 
 
 ■* Lawless v. Queale, 8 Ir. Law R. 385. See, also, Henman v. Lester, 31 L. J., 
 C. P. 370, 371, per Byles, J. ; 12 Com. B., N. S. 781, 782, S. C. 
 
CHAP. IV.] ORAL EVIDENCE, WHEN ADMISSIBLE. 375 
 
 because the judicial document, on being produced, might be found 
 irregular and void, and the party might be mistaken ; ^ but on an 
 indictment for bigamy it has been held that the prisoner's deli- 
 berate declaration, that he had been married in a foreign country, 
 rendered it unnecessary to prove that the marriage had been cele- 
 brated according to the laws of that country.^ So, in an action 
 for wages, an admission by the plaintiff that his claim ha^ been 
 referred to an arbitrator, who had made an award against him, has 
 been held admissible evidence on behalf of the defendant.^ 
 
 § 414. It may be further observed, with respect to this exception, § 384 
 that a, material difference exists between proving by means of an 
 admission the execution of an instrument requiring attestation, 
 which is produced, and proving the party's admission, that by such 
 instrument, which is not produced, a certain act was done ; and, 
 indeed, it still appears to be the law, — as will hereafter be shown,* 
 — that, when an instrument, which requires attestation to give it 
 validity,' is in court, and its execution is to be proved against a 
 hostile party, an admission on his part of due execution, unless 
 made with a view to the trial of that cause, is, generally,^ not 
 sufficient. This rule is founded on reasons peculiar to the class of 
 cases to which it is applied. 
 
 § 415.''' Where the writing does not fall within either of the § 385 
 three classes already described, no reason exists why it should 
 exclude oral evidence. If, therefore, a written communication be 
 accompanied by a verbal one to the same effect, the latter may 
 be received as independent evidence, though not to prove the con- 
 tents of the writing, nor as a substitute for it.^ So, the payment 
 
 1 Scott V. Clare, 3 Camp. 236. See, also, Summersett v. Adamaon, 1 Bing. 
 73 ; Jenner ii. Jolliffe, 6 Johns. 9 ; Wellaiid Canal Co. v. Hathaway, 8 Wend. 
 480. 
 
 ' E. V. Newton, 2 M. & Rob. 503, per Wightman and Cresswell, Js. ; 1 C. & 
 Kir. 164, S. C, nom. R. v. Simmonsto. But see R. v. Flaherty, 2 C. & Kir. 
 782 ; and E. v. Savage, 13 Cox, 178, per Lush, J. 
 
 3 Murray v. Gregory, 5 Ex. R. 468. * See post, §§ 1843, 1849. 
 
 5 See 17 & 18 V., c. 125, § 26 ; 19 & 20 V., c. 102, § 29, Ir. 
 
 « See, however, Nagle v. Shea, I. R., 9 C. L. 389. 
 
 ? Gr. Ev. § 90, in part. » See ante, § 400. 
 
376 OBAL EVIDENCE, WHEN ADMISSIBLE. [PART II. 
 
 of money may be proved by oral testimony, though a receipt be 
 taken ; ^ a verbal demand of goods is admissible in trover, though a 
 demand in writing was made at the same time ; ^ and the admission 
 of a debt is provable by oral testimony, though a written promise to 
 pay was simultaneously given.^ So, the determination of an interest 
 in land, whether freehold or copyhold, may be proved without pro- 
 ducing, or accounting for the non-production of, the title-deeds or 
 court rolls, by merely showing that a deceased occupier had, while 
 in possession, declared that his interest in the premises would expire 
 at his death.* For, — as will presently be seen,^ — all statements 
 by a person, while in possession of property, are, after his death, in 
 themselves primary evidence, provided they tend to cut down his 
 interest therein.^ 
 
 § 416. Where, on a preliminary hearing of a charge, the magis- § 
 trate's clerk takes down what the witness says, but neither the 
 witness nor the magistrate signs the writing, nor does it constitute 
 part of the depositions returned, oral evidence of what passed on 
 that occasion is equally admissible with the clerk's note ;'' and the 
 same rule will prevail, if, on the hearing of an information for a 
 trespass in pursuit of game,^ the clerk takes a note of the charge ; 
 because this is not one of those cases where the magistrate is bound 
 to take down what the witnesses say.* So, in support of an indict- 
 ment for perjury committed in a County Court, it is unnecessary to 
 subpcEua the judge to produce his notes, for he is not required by 
 law to keep any, and the perjury may be proved by any witness 
 who was present at the trial.^° So, where the proceedings of direc- 
 tors, commissioners, public trustees, and the like, are entered in 
 
 ' Eambert v. Coheri, 4 Esp. 213 ; Jacob v. Lindsay, 1 East, 460. 
 
 2 Smitli V. Young, 4 Camp. 439, per Ld. Ellenborough. 
 
 ' Singleton v. Barrett, 2 C. & J. 368. 
 
 " Doe V. Langfleld, 16 M. & W. 497. » Post, § 684, et seq. 
 
 6 Doe V. Langfleld, 16 M. & W. 514, per Parke, B. 
 
 ' Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. ; R. v. Christopher, 
 2 C. & Ktr. 994 ; 1 Den. 536 ; 4 Cox, 76, S. 0. ; ante, § 400. 
 
 * Under 1 & 2 W. 4, o. 32, § 30. 
 
 " Robinson v. Vaughton, 8 C. & P. 252, per Alderson, B. 
 
 '» R. V. Morgan, 6 Cox, 107, per Martin, B. ; Harmer v. Bean, 3 C. & Kir. 
 307, per Parke, B. 
 
 386 
 
CHAP. IV.] OEAL EVIDENCE, WHEN ADMISSIBLE. 377 
 
 books, the fact that such books are rendered by statute admissible 
 in evidence, does not exclude parol proof of what has taken place at 
 the respective meetings.-"^ Neither is it necessary to produce a 
 certificate of registration, in order to prove that a joint stock com- 
 pany has been completely registered.^ So, the fact of birth, bap- 
 tism, marriage,^ death, or burial, may be proved by parol testimony, 
 though a narrative or memorandum of these events may have been 
 entered in. registers, which the law requires to be kept ; for the 
 existence or contents of these registers form no part of the fact to 
 be proved, and the entry is no more than a collateral or subsequent 
 memorial of that fact, which may furnish ^ a satisfactory and con- 
 venient mode of proof, but cannot exclude other evidence, though its 
 non -production may afford grounds for scrutinising such evidence 
 with more than ordinary care.* 
 
 § 417.^ On a somewhat similar ground it has been held, that in § 387 
 prosecutions for political offences, such as treason, conspiracy, and 
 sedition, the inscriptions on flags and banners paraded in public, 
 and the contents of resolutions read at a public meeting, may be 
 proved, as being of the nature of speeches, by oral testimony ; ^ and 
 where a party was indicted for administering an unlawful oath, a 
 witness was permitted to give parol evidence of the words used, 
 though he stated his belief that the accused read the words from a 
 paper, which he held in his hand when he administered the oath, 
 
 1 Miles V. Bough, 3 Q. B. 845, 872 ; Inglis v. Gt. North. Ey. Co., 1 Maoq. 
 Sc. Cas., H. of L. 112, 118, 119. 
 
 2 Agricultural Cattle Ins. Co. u. Fitzgerald, 16 Q. B. 432 ; decided under 
 the repealed Act, 7 & 8 V., c. 110, §§ 7 & 25. See, now, 25 & 26 V., c. 89, 
 § 18. See, also, E. v. Langton, L. E., 2 Q. B. D.296 ; 46 L. J., M. C. 136 ; 
 13 Cox, 345, S. C. 
 
 3 Lady Limerick v. Ld. Limerick, 32 L. J., Pr. & Mat. 22 ; 4 Swah. & Trist. 
 252, S. C. 
 
 ^ Evans v. Morgan, 2 C. & J. 453 ; E. v. Allison, E. & K 109 ; Harrison v. 
 Corp. of Southampton, 22 L. J., Ch. 722 ; E. v. Mainwaring, 26 L. J., M. C. 
 10 ; Dear. & Bell, 132 ; 7 Cox, 192, S. C. ; Eeed v. Passer, Pea. E. 232 ; St. 
 Devereux ■;;. Much Dew Church, 1 W. Bl. 367 ; Morris v. Miller, id. 632 ; 4 
 Burr. 2067, S. C. ; Birt v. Barlow, 1 Doug. 172 ; Com. v. Norcross, 9 Mass. 
 492 ; Ellis v. Elhs, 11 Mass. 92 ; wings v. Wyant, 1 Har. & M'H. 393. 
 
 5 Gr. Ev. § 90, in part. 
 
 6 E. V. Hunt, 3 B. & A. 566 ; Sheridan's and Kirwan's case, 31 How. St. Tr. 
 673 ; E. V. O'Connell, Arm. & T. 235—237. See ante, § 409,' n. 1. 
 
378 BEST DOCUMENTAEY EVIDENCE MUST BE PEODUOED. [PART II. 
 
 and no notice to produce this paper had been served on the 
 prisoner.^ 
 
 § 418. The preceding observations have been confined to cases, § 388 
 where the attempt has been made to substitute oral for written 
 evidence ; but precisely the same rules operate to the exclusion of 
 writings, which the law considers as entitled to less weight than 
 those which might, and, consequently, ought to be forthcoming. 
 Thus, an original document must, — subject to some exceptions 
 that will be presently mentioned,^ — be produced at the trial, and 
 a mere copy, however accurate, will not in the first instance be 
 admissible.^ If, then, it be necessary to show the contents of a 
 manuscript which is in the possession of the opposite party, a 
 paper, purporting to be a printed copy, cannot be received in 
 evidence, without a notice to produce the manuscript ; * neither 
 will a duplicate writing, taken from an autograph at one impres- 
 sion by means of a copying machine, be regarded as an original, 
 but the autograph itself must be produced, or its non-production 
 be accounted for as in ordinary cases. ^ Still, all printed copies 
 struck ofi' in one common impression, though they constitute merely 
 secondary evidence of the contents of the paper from which they 
 are taken, are considered as primary evidence of each other's con- 
 tents ; and, therefore, where the question was, whether a prisoner 
 was acquainted with the contents of certain placards, some copies of 
 which were traced to his possession, a . copy remaining with the 
 printer was allowed to be read in evidence for the prosecution, 
 though no notice had been served upon the prisoner to produce the 
 copies which had been delivered to him.® Again, on an indictment 
 for feloniously setting fire to a house, with intent to defraud the 
 insurers, the policy itself, being the best evidence of the fact of 
 insurance, must be produced by the prosecutor ; and recourse 
 
 1 R. V. Moors, 6 East, 421, n. 
 
 2 Post, § 428. 3 B. N. P. 293, 294. 
 " R. V. Watson, 32 How. St. Tr. 82—86 ; 2 Stark. R. 129, S. C. 
 
 5 NodiQ V. Miirray, 3 Camp. 228, per Ld. EUenboroiigh. In India, " an 
 impression of a document made by a copying machine shall be taken withovit 
 further proof to be a correct copy." Act 11 of 1855, § 35. 
 
 « R. V. "Watson, 32 How. St. Tr. 82—86 ; 2 Stark. E. 129, S. C. 
 
CHAP. rV.] MEMOEIAL OF EEGISTEEED DEED, WHEN ADMISSIBLE. 379 
 
 cannot be had to the books of the insurance office, even though 
 the policy be in the defendant's possession, unless notice to produce 
 it has been duly served upon him.^ 
 
 § 419. The memorial of a registered conveyance is also inad- § 389 
 missible as primary evidence against third persons, to prove the 
 contents of the deed;^ although against the party by whom the 
 deed is registered, and those who claim under him, it can certainly 
 be received as secondary,^ if not as primary,* evidence, being con- 
 sidered in the light of an admission.^ On one or two occasions, 
 the memorial, or even an examined copy of the registry, has been 
 received as secondary evidence of the contents of an indenture, 
 . not only as against parties to the deed, who have had no part in 
 registering it, but also as against third persons ; but, in all these 
 cases, the evidence has been admitted under special circumstances, 
 as for instance, where parties have been acting for a long period 
 in obedience to the provisions of the supposed instrument, or where 
 the deed has been recited or referred to in other documents ad- 
 missible in the cause.* The enrolment of a lease granted by the 
 Crown is primary evidence, because the possessions of the Crown 
 cannot be alienated but by matter of record ; and the same rule 
 applies to leases granted by the Duke of Cornwall, on account of 
 the identity of interest which subsists between His Koyal Highness 
 and the Crown.'' 
 
 § 420. It may occasionally be a question of some nicety to deter- § 390 
 mine what instrument constitutes the primary evidence of a transac- 
 
 1 K. V. Doran, 1 Esp. 127, per Ld. Kenyon ; E. v. Kitson, 22 L. J., M. C. 
 118 ; Pearce & D. 187, S. C. ; E. v. Gilson, E. & E. 138 ; E. v. Ellioombe, 5 
 C. & P. 522, per Littledale, J. ; 1 M. & Eob. 260, S. C. 
 
 2 Molton V. Harris, 2 Esp. 549, per Ld. Kenyon. 
 
 3 Doe V. CMord, 2 C. & Kir. 448, 452, per Alderson, B. 
 
 ^ Boulter v. Peplow, 9 Com. B., 502, per Maule, J. See Brown v. Armstrong, 
 I. E., 7 C. L. 130. 
 
 5 WoUaston v. Hakewill, 3 M. & Gr. 297 ; 3 Scott, N. E. 593, S. C. 
 
 6 See Sadher v. Biggs, 4 H. of L. Gas. 435 ; Biggs v. Sadlier, 10 Ir. Eq. E. 
 522 ; Peyton v. M'Dermott, 1 Dru. & War. 198. See, also, Collins v. Maiile, 
 8 C. & P. 502 ; Doe v. Kilner, 2 C. & P. 289. 
 
 ' Rowe V. Brenton, 8 B. & C. 755—758. For other instances, see post, 
 § 1649, et seq. 
 
380 beokee's books — bought and sold notes. [paet ir. 
 
 tion. Thus, where goods haye been sold through the medium of a 
 broker, it is not. yet distinctly decided how far the broker's book is 
 admissible in proof of the contract. On the one hand, it has 
 been powerfully urged by many eminent judges, that this book, 
 if duly signed by the broker, furnishes the best evidence of the 
 agreement,^ but on the other hand it has been ruled, after much 
 consideration, and after consulting merchants, that the bought and 
 sold notes, provided they agree, and are signed so as to satisfy the 
 Statute of Frauds,^ constitute the contract, and, as such, must be 
 produced in the first instance.^ However this particular point 
 may be ultimately determined, it seems to be quite clear, that if no 
 notes have been transmitted to the principals, recourse may be had 
 to the signed entry in the book kept by the broker,* or, indeed, to 
 any other memorandum made by him as agent for both parties, 
 which is sufficient to satisfy the statute.' In one case, where the 
 contract was made through the medium of a broker, but ihe note 
 delivered to the vendor was actually signed by the purchaser, Lord 
 EUenborough held, — and it would seem correctly, — that this note 
 of itself constituted the contract, though it differed materially from 
 the note which was sent to the purchaser.* Where, however, 
 
 1 Sievewiight i;. Arohibald, 17 Q. B. 115, per Patteson, J., 124, per Ld. 
 Campbell ; Heyman v. Neale, 2 Camp. 337, per Ld. EUenborough ; Grant v. 
 Fletcher, 5 B. & C. 436 ; 8 D. & E. 59, S. C. ; Henderson v. BamewaU, 1 Y. 
 & J. 387. 
 
 2 Durrell v. Evans, 1 H, & C. 174 ; and 31 L. J., Ex. 337, per Ex. Ch., over- 
 rulmg same case, 30 L. J., Ex. 254 ; and S. 0. nom. Darrell v. Evans, 6 H. & N. 
 660. See Barton v. Crofts, 16 Com. B., N. S. 11 ; 33 L. J., C. P. 189, S. C. ; 
 and Thompson v. Gardiner, L. E., 1 C. P. D. 777. In these last two cases the 
 production of the sold note only was held sufficient to satisfy the statute. 
 
 3 Goom V. Aflalo, 6 B. & C. 117 ; 9 D. & E. 148, S. C. ; Thornton v. 
 Kempster, 5 Taunt. 786 ; Thornton v. Meux, M. & M. 43, per Abbott, C. J. ; 
 Gumming v. Eoebuck, Holt, N. P. E. 172 ; Hawes v. Foister, 1 M. & Eob. 368, 
 per Ld. Denman ; Townend v. Drakeford, 1 C. & Kir. 20, per id. 
 
 * Townend v. Drakeford, 1 C. & Kir. 20 ; Pitts v. Beckett, 13 M. & W. 746, 
 per Parke, B. ; Thompson v. Gardiner, L. E., 1 C. P. D. 777. 
 
 ' Eichey v. Garvey, 10 Ir. Law E. 544. There the memorandum had been 
 drawn up two or three days after the sale, but the court held this fact to be 
 immaterial, the broker's authority as agent for the parties not having been 
 revoked. 
 
 " Eowe V. Osborne, 1 Stark. E. 140 ; recognised in Cowie v. Eemfry, 5 Moo. 
 P. C. E. 249, 250. But see Moore v. Campbell, 10 Ex. E. 323, where the 
 
CHAP, rv.] BEOKEK'S books BOUGHT AND SOLD NOTES. 381 
 
 the transaction was an ordinary one of bought and sold notes, 
 signed by the broker, which substantially differed from each other, 
 the Priry Council held that no binding contract had been effected, 
 although the purchaser had, on objection raised by the vendor 
 to a particular word inserted in the sold note, struck out that word, 
 and evidenced his consent to the erasure by affixing his initials 
 thereto.^ 
 
 § 421. Whether, in the event of a material disagreement between § 391 
 the bought and sold notes, the broker's book may be resorted to, 
 is a more difficult question. On two occasions, Lord Denman 
 appears to have considered that such a course could not be pur- 
 sued ; ^ and Lord Abinger has expressed a similar opinion, though 
 he has carefully confined his observations to a case where it cannot 
 be shown that the broker's book was known to the parties.^ On 
 the other hand. Lord Wensleydale appears to have entertained 
 serious doubts upon the subject, urging that the broker would 
 scarcely be bound by his oath and bond to enter the terms of the 
 contracts negotiated by him in his books, and to sign those books, 
 if the entries so made by him were not intended to have a binding 
 effect.* The force of this reasoning is now however neutralised, 
 since even London brokers are no longer bound to keep books.^ 
 Still, it is probable that the doctrine supported by Lord Wensley- 
 dale will ultimately prevail; and the more so, as the argument 
 
 vendor having signed a note wMch differed from tlie one sent to Mm by the 
 purchaser's broker, the court held that the validity of that note depended upon 
 the question of feet, whether it was intended by both parties to be the contract, 
 or whether the vendor only intended to be bound by it, provided the purchaser 
 would sign a corresponding note. 
 
 1 Oowie V. Eemfry, 5 Moo. P. C. R. 232. But see Heyworth v. Knight, 17 
 Com. B., N. S. 298, 310, 311, per Willes, J. 
 
 2 Townend v. Drakeford, 1 C. & Kir. 20 ; Gregson ■;;. Buck, 4 Q. B. 737, 747. 
 In these cases the question did not directly arise, as, in the first, the entry in 
 the broker's book was unsigned, and in the last, the book does not appear to 
 have been tendered in evidence at all. 
 
 3 Thornton v. Charles, 9 M. & W. 809. 
 * Id. 804, 807, 808. 
 
 " 33 & 34 v., c. 60, § 2. Stockbrokers were directed to keep books by 7 G. 2, 
 c. 8, § 9, made perpetual by 10 Q. 2, c. 8 ; but these Acts are now repealed by 
 23 & 24 v., c. 28. 
 
382 VARIANCE BETWEEN BOUGHT AND SOLD NOTES. [PABT II. 
 
 rejecting the broker's book, on the ground that the parties are 
 ignorant of its contents, appears to be entitled to little weight; 
 for, first, there is no necessity that they should be ignorant, but 
 either of the principals may, if he think fit, demand to see the 
 entry of the contract ; secondly, if the broker perform his duties 
 in so neghgent a manner as to subject either of the parties to loss, 
 he is responsible to the amount of the injury sustained ; and, lastly, 
 if this argument were to prevail, it might equally be applied to 
 almost every case, where a contract is negotiated through the 
 medium of an agent. 
 
 § 422. Where a party wishes to enforce a contract made through § 392 
 a broker, it will be sufficient for him to produce the note in his 
 possession, and to show that the broker has been employed in 
 the transaction by his adversary ; and this latter, if he seeks to 
 rely on any variance between the bought and sold notes, must 
 produce, as his evidence, the one that has been handed, to himself.^ 
 
 § 423. The amount of variance that will render the contract § 393 
 nugatory cannot be expressly defined. In one case, where the 
 bought note spoke of a brokerage of one per cent., and a deposit 
 of fifteen per cent., and the sold note stated that the brokerage 
 was ten shillings per cent., and omitted all mention of the deposit. 
 Lord Denman ruled that the discrepancy was fatal, though with 
 respect to the brokerage, one of the jury interpreted the notes as 
 meaning that the broker should be paid by the buyer one per cent., 
 and by the seller half per cent.^ In another case, where Scotch 
 iron was named in the bought note, and Dunlop's iron, which is 
 Scotch iron, but not the only kind of Scotch iron, was specified in 
 the sold note, the contract was held to be invalidated by the vari- 
 ance;^ and the court arrived at a similar conclusion in a third 
 case, where the sole difference between the bought and the sold 
 notes was, that the one purported to deal with " Riga," and the 
 
 ^ Hawes v. Forster, 1 M. & Rob. 368, per Ld. Denman. 
 
 ^ Townend v. Drakeford, 1 C. & Kir. 20. See Kempson v. Boyle, 34 L. J., 
 Ex. 191, wliere parol evidence was admitted to explain away an apparent 
 variance between the notes ; 3 H. & 0. 763, S. 0. 
 
 ' Sievewiigbt v. Archibald, 17 Q. B. 103. 
 
CHAP. IV.] NOTARIAL INSTRUMENTS PROBATES. 383 
 
 other with "Petersburg," hemp.^ It seems, however, that a mere 
 clerical error, or even a mistake in a name, if productive of no loss, 
 will not invalidate the sale.^ 
 
 § 424. With respect to notarial instruments, the general rule is § 394 
 that a duplicate made out any time from the original or protocol 
 in the notarial book, is equivalent to an original drawn up at the 
 time of the entry in the book.^ If, therefore, a foreign biU of 
 exchange be protested for non-payment, or if it be paid under 
 protest for the honour of an indorser, the fact of the protest may 
 be primarily established, not only by producing a formal instru- 
 ment of protest, extended by the notary from his register at the 
 date of the actual protest, but by putting in evidence a duplicate 
 protest, even though it may have been drawn up after the com- 
 mencement of the action, provided that the entries in the notary's 
 book can be shown to have been made at the time when the trans- 
 actions occurred.* 
 
 § 425. The title of a person as executor or administrator might § 395 
 have been primarily proved under the old law in any one of the 
 following ways^ : — namely, by producing either the probate or 
 letters of admiuistration, or an exemplification or certificate thereof 
 granted by the Ecclesiastical Court,^ or the Book of Acts in the 
 Prerogative Office which directed the grant of the probate'' or 
 letters,^ or an examined or certified copy of such book,^ or, if no 
 act book or other record were kept, even minutes of the proving of 
 the will and sealing of probate, indorsed on the original will by 
 
 1 Thornton v. Kempster, 1 Marsh. 355 ; 5 Taunt. 786, S. 0. 
 
 2 Mitchell V. Lapage, Holt, N. P. E. 253. See Bold v. Rayuer, 1 M. & W. 
 343. 
 
 3 Geralopulo v. Wieler, 10 Com. B. 712, per Maiile, J. 
 * Id. 690. 
 
 5 See post, § 1589. 
 
 ' Kempton v. Cross, Cas. temp. Hard. 108 ; B. N. P. 246 ; Doe v. Gunning, 
 7 A. & E. 244. 
 
 r Cox V. AlHngham, Jae. 514, per Sir T. Plumer, M. R. 
 
 8 Elden v. Keddell, 8 East, 187 ; De Roos Peer., 2 Coop. 542, 543. 
 
 ■■' Davis V. WilKams, 13 East, 232 ; Dorrett v. Meux, 23 L. J., C. P. 221 ; 15 
 Com. B. 142, S. C. ; 14 & 15 V., c. 99, § 14. 
 
384 DUPLICATE ORIGINALS COUNTERPARTS. [PAET II. 
 
 the surrogate and registrar or deputy registrar of the Diocesan 
 Court.^ Since the 11th of January, 1858,^ either the Court of 
 Probate, or the Probate Division of the High Court, has had juris- 
 diction over all matters testamentary ; but as the statutes which 
 established those courts respectively, and the rules and orders 
 which regulate their proceedings, are alike almost wholly silent 
 on the subject of evidence, it is not easy to determine with pre- 
 cision how much of the law just referred to remains in force. An 
 executor or administrator, however, may doubtless still prove his 
 title, either by producing the probate or letters, or by an exemplifi- 
 cation thereof granted by a registrar or district registrar of the 
 Probate Division of the High Court.^ 
 
 § 426. The rule, which determines under what head of evidence § 396 
 deeds executed in duplicate are to be classed, appears to be this : 
 When two or more parts are sealed and delivered by each party, — 
 a practice which of late years has frequently prevailed, — they are 
 denominated duplicate or triplicate originals,^ and as such are con- 
 sidered to be primary evidence.^ When, however, each part is exe- 
 cuted by one party only, as often occurs in the case of leases, the two 
 instruments are called counterpa/rts, and each is alternately the best 
 evidence as against the party sealing it, and those in privity with 
 such party ; ^ and secondary evidence of the contents of the other 
 part.'' Thus, if a landlord brings an action for rent, he produces 
 
 ' Doe V. Mew, and Doe v. Gunning, 7 A. & E. 240 ; 2 N. & P. 260, 266, n., 
 S. 0. 
 
 '-■ When the Act of 20 & 21 V., c. VV, came into operation. See Gazette of 
 Friday, 4 Dec, 1857. 
 
 ' See forms of exemplifications appended to the Eules, &c., of 1862, for the 
 Registrars of the Court of Probate in respect of non-contentious business, Nos. 
 10 & 11 ; and similar forms appended to Rules, &c., for the District Registrars, 
 Nos. 11 & 12. 
 
 < 2 M. & Gr. 518, b. 
 
 * See Colling v. Treweek, 6 B. & C. 398, per Bayley, J. ; Brown v. Woodman, 
 6 C. & P. 206, per Parke, J. 
 
 " Roe V. Davis, 7 East, 363 ; May. of Carlisle v. Blamire, 8 East, 487 ; Paul 
 V. Meek, 2 Y. & J. 116; Pearoe v. Morrice, 3 B. & Ad. 396; Burleigh ■;;. Stibbs, 
 5 T. R. 465 ; Houghton v. Koenig, 18 Com. B. 235. 
 
 7 Munn V. Godbold, 3 Bing. 292 ; 11 Moore, 49, S. C. As secondary evidence 
 
CHAP. IV.] COUNTERPARTS OF OLD LEASES. 385 
 
 the counterpart executed by the tenant as original evidence,^ or, in 
 the event of its loss, he may have recourse, either to the part sealed 
 by himself, or to any other species of secondary proof ; ^ but if the 
 tenant is the person aggrieved, he must rely on the part delivered 
 by the landlord, and that executed by himself will only be con- 
 sidered as secondary evidence. With respect to the stamp, the 
 counterpart sealed by the lessor is usually deemed the original ; 
 but that which is sealed by the lessee may be described in pleading 
 as the "indenture," though stamped as a counterpart, provided the 
 action be brought against the lessee.^ Where any discrepancy is 
 found to exist between a lease and its counterpart, the law will 
 presume that the lease is correct, unless it be clear that the mistake 
 is in that instrument.* 
 
 § 427. On one or two occasions, where it was necessary to show § 397 
 that the plaintiff's ancestor had exercised acts of ownership over 
 the property in question, counterparts of leases older than the 
 period of living memory, and found in the ancestor's muniment 
 room, have been admitted in evidence even against ■ strangers, 
 though they were executed by no one but the persons named as 
 lessees, who were not shown to have actually held under them, 
 and though no excuse was given for not producing the original 
 leases sealed by the ancestor.^ It is difficult to reconcile these 
 
 it will be admissiUe, though, unstamped, id. See 33 & 34 V., c. 97, § 93 ; and 
 ante, § 148. 
 
 > The law in Ireland is now regulated hy § 23 of the Act 23 & 24 V., c. 154, 
 which enacts, that " in all actions, suits, and proceedings, proof by or on behalf 
 of any landlord of the perfection of the counterpart of any lease shall be 
 equivalent to proof of the perfection of the original lease ; and in case it shall 
 appear that no counterpart existed, or that the counterpart has been lost 
 destroyed, or mislaid, proof of a copy of the original lease or counterpart, as 
 the case may be, shaU be sufficient evidence of the contents of the lease as 
 against the lessee, or any person claiming from or under him.'' 
 
 2 Doe V. Boss, 7 M. & W. 102 ; Hall o. Ball, 3 M. & Gr. 242 ; 3 Scott, N. R 
 577, S.C. 
 
 3 Pearce v. Morrice, 3 B. & Ad. 396. 
 
 " Burchell v. Clark, L. E., 2 C. P. D. 88 ; 46 L. J., C. P. 115, overruling 
 S. C, L. R., 1 C. P. D. 602. 
 
 ° Doe V. Pu.lman, 3 Q. B. 622 ; D. of Bedford v. Lopes, cited id. 623 as 
 decided by Ld. Denman ; Clarkson v. Woodhouse, 5 T, R. 412, n. a ; 3 Done. 
 
386 COUNTERPARTS OP OLD LEASES. [PAET 11. 
 
 decisions with strict principle, since the counterparts amounted, 
 in fact, to no more than admissions by third parties that the an- 
 cestor was seised ; but the judges appear to haye relaxed the rule, 
 in consequence of the acknowledged difficulty of tracing acts of 
 ownership after the lapse of many years ; and looking at the ques- 
 tion in this light, few persons will probably feel inclined to quarrel 
 with the doctrine as now established. 
 
 189, S. C. In this last case, the distinction between counterparts and leases 
 does not appear to have been much discussed, if taken at all. 
 
CHAP, v.] SECONDARY EVIDENCE, WHEN ADMISSIBLE. 387 
 
 CHAPTER V. 
 
 SECONDARY EVIDENCE. 
 
 § 428. In the last chapter the rule was discussed which requires § 398 
 the production of the best attainable evidence, and an attempt was 
 made to illustrate by examples the distinction between primary 
 and secondary modes of proof. It remains to be seen upon what 
 occasions secondary evidence will be received ; and the first' general 
 rule on this subject is, that such evidence is inadmissible, until it he 
 shown that the production of primary evidence is out of the party's 
 power. It will be convenient to discuss this rule, and the excep- 
 tions to it, as they apply, first, to documentary evidence, and, next, 
 to oral testimony ; and with respect to documents, it will be found 
 that proof of their contents may be established by secondary evi- 
 dence, first, when the original writing is destroyed or lost ; 
 secondly, when its production is physically impossible, or at least 
 highly inconvenient ; thirdly, when the document is in the posses- 
 sion of the adverse party, who refuses, after notice, and in some 
 cases without notice, to produce it ; fourthly, when it is in the 
 hands of a third party, who is not compellable by law to prodiice it, 
 and who, being called as a witness with a subpoena duces tecum, 
 relies upon his right to withhold it ; fifthly, when the law raises a 
 strong presumption in favour of the existence of the document ; 
 sixthly, when the papers are voluminous, and it is only necessary 
 to prove their general results ; and lastly, when the question arises 
 upon the examination of a witness on the voire dire. 
 
 § 429.-^ First, if the instrument be destroyed or lost, the party § 399 
 seeking to give secondary evidence of its contents must give some 
 evidence that the original once existed,^ and must then either 
 
 1 Gr. Ev. § 558, in part. 
 
 2 Doe V. Wittcomb, 6 Ex. E. 601, 605, 606, per Ld. Campbell ; S. C. in Dom. 
 Proc, 4 H. of L. Cas. 431, per Alderson, B. 
 
 c 2 
 
388 WHEN INSTRUMENT IS DESTEOYED OR LOST. [PART II. 
 
 prove its destruction positively, or at least presumptively, as by 
 showing that it has been thrown aside as useless,^ or he must 
 establish its loss, by proof that a search has been unsuccessfully 
 made for it, in the place or places where it was most likely to be 
 found. What degree of diligence is necessary in the search cannot 
 easily be defined, as each case must depend much on its own 
 peculiar circumstances;^ but the party is generally expected to 
 show, that he has, in good faith, exhausted in a reasonable degree 
 all the sources of information and means of discovery, which the 
 nature of the case would naturally suggest, and which were acces- 
 sible to him.^ As the object of the proof is merely to estabhsh a 
 reasonable presumption of the loss of the instrument, and as this 
 is a preliminary inquiry addressed to the discretion of the judge,* — 
 the party offering secondary evidence need not on ordinary occa- 
 sions have made a search for the original document, as for stolen 
 goods, nor be in a position to negative every possibility of its 
 having been kept back.' If the document be important, and such 
 as the ovmer may have an interest in keeping, or if any reason exist 
 for suspecting that it has been fi-audulently withheld, a very strict 
 examination will properly be required ; but if the paper be supposed 
 to be of little or no value, a very slight degree of diligence will be 
 demanded, as it will be aided by the presumption of destruction or 
 loss, which that circumstance affords.® 
 
 § 430. When the document belongs to the personal custody of § 400 
 a particular individual, or is proved, or may be presumed, to be 
 
 1 E. V. Johnson, 7 East, 66 ; 29 How. St. Tr. 437—440, S. C. 
 
 2 Brewster v. Sewell, 3 B. & A. 303, per Best, J. ; Gully v. Bp. of Exeter, 
 4 Bing. 298. See Pardoe v. Price, 13 M. & W. 267 ; R. v. Gordon, 25 L. J., 
 M. C. 19 ; Pearce v. D., 586, S. C. 
 
 3 E. V. Saffron Hill, 22 L. J., M. C. 22 ; 1 E. & B. 93, S. C. See Moriarty 
 V. Grey, 12 Ir. Law R., N. S. 129. 
 
 « Ante, § 23. 
 
 ^ M'Galiey v. Alston, 2 M. & W. 214, per Alderson, B., recognised per 
 Wigram, V.-G., in Hart v. Hart, 1 Hare, 9. 
 
 " Gathercole v. Miall, 15 M. & W. 319, 322, 329, 330, per Pollock, C. B. ; 
 335, 336, per Alderson, B. ; Brewster v. Sewell, 3 B. & A. 299, 300, 303 ; Ken- 
 sington V. Inglis, 8 East, 278 ; E. v. East Fairley, 6 D. & E. 153, per Bayley, J. ; 
 Preeman v. Arkell, 2 B. & C. 494 ; 3 D. & R. 669, S. C. 
 
CHAP, v.] SEARCH FOE LOST INSTRUMENT. 389 
 
 in his possession, he must in general be served with a subpcena 
 duces tecum, and be sworn to account for it ; ^ since, so long as he 
 is capable of being called as a witness, his declarations respecting 
 it will in strictness be inadmissible,^ and even after his death, this 
 species of evidence, though admissible as tending to prove the 
 diligence and extent of the search, must be received with great 
 caution.^ Still, on one occasion, where an apprentice shortly before 
 his death had stated that his indenture had been given up to him 
 after the expiration of the apprenticeship, and that he had burnt it, 
 secondary evidence of its contents was received without any search 
 having been made for it, as proof was given that the deed had not 
 been executed in duplicate, that the master was dead, and that his 
 executrix had declared that she knew nothing about the instru- 
 ment.* This decision appears to have proceeded on the somewhat 
 dubious ground, that if the statement of the apprentice was inad- 
 missible, the indenture was not traced into his hands, and as the 
 term of service had expired, no particular reason could be assigned 
 why it should be in his custody, while, if the statement was re- 
 ceivable to show a possession of the deed by him, it further showed 
 that search for it was unnecessary.^ The second branch of this 
 dilemma is unanswerable, but the first is open to much doubt ; for 
 even if the fact of the deed not being traced into the hands of the 
 apprentice, could preclude the necessity of searching in that 
 quarter,® it could not discharge the parties of laches, in having 
 neither called the personal representative of the master, nor even 
 examined his papers. Perhaps, however, the case may best be sup- 
 
 1 See E. V. Saffron HiU, 22 L. J., M. C. 22 ; 1 E. & B. 93, S. C. 
 
 2 R. V. Denio, 7 B. & C. 620 ; R. v. Castleton, 6 T. E. 236 ; Williams v. 
 Younghusband, 1 Staik. E. 139 ; Walker v. Lady Beauckamp, 6 C. & P. 552, 
 per Alderson, B. 
 
 3 R. ■;;. Rawden, 2 A. & E. 158, per Ld. Denman. 
 
 « R. V. Morton, 4 M. & Sel. 48. See E. v. Fordingbridge, 27 L. J., M. C. 
 290 ; E. B. & E. 678, S. C. 
 
 ' Per Ld. Ellenborougli, in 4 M. & Sel. 50 ; explained by Bayley, J., in E. 
 V. Denio, 7 B. & C. 622. See Eicbards v. Lewis, 11 Com. B. 1054. In City 
 of Bristol V. Wait, 6 C. & P. 591, Alderson, B., beld, tbat, in order to let in 
 secondary evidence of the appointment of one of tbe defendants as overseer, it 
 was sufficient to show that a witness had asked him for his appointment, when 
 he stated that he bad lost it, whereupon no search was made. 
 
 « See post, § 432, n. 4. 
 
390 SEARCH FOE LOST INSTRUMENT. [PART II. 
 
 ported, by considering that the evidence was admitted for the mere 
 purpose of satisfying the conscience of the judge on a preliminary 
 inquiry ; and that, consequently, a looser rule was allowed to prevail 
 than would have been applicable to the proof of the material facts.' 
 Indeed, this distinction between evidence addressed to the judge 
 and that submitted to the jury, has been adopted by the Court of 
 Queen's Bench, which has gone the length of holding, that, in 
 order to show that search has been made for a document, so as to 
 let in secondary proof of its contents, hearsay evidence of the 
 answers given by persons who were likely to have it in their custody 
 ought to be received.^ 
 
 § 431. If the instrument ought to have been deposited in a § 401 
 public office, or other particular place, it will generally be deemed 
 sufficient to have searched that place, without calling the party 
 whose duty it was to have put it there, or any other person who 
 may have had access to it. Thus, where it appeared that a parish 
 Indenture of apprenticeship had been given to a person since dead 
 to take to the overseers, and a fruitless search was made for it in 
 the parish chest, which was the proper repository for such instru- 
 ments, secondary evidence was admitted, though none of the 
 overseers were called, and no inquiry was made of the personal 
 representative of the party, who ought to have delivered it to the 
 parish officers.^ So, where it was the duty of a paying clerk of 
 a parish to deposit a certain cancelled cheque in a room of the 
 workhouse, an application to the successor of this clerk for an 
 inspection of the cheques in the room, and an ineffectual examina- 
 tion of several bundles, which were handed to the party searching 
 by the successor, was deemed a sufficient search to let in secondary 
 evidence, though no notice to produce had been served on the 
 first clerk, he being the defendant in the cause, and though the 
 person who succeeded him in the office was not called.* Again, 
 
 1 E. V. Kenilwortli, 2 Sess, Cas. 72, per Coleridge, J. ; V Q. B. 652, S. C. 
 
 2 E. V. Braintree, 28 L. J., M. C. 1 ; 1 E. & E. 51, S. C. ; E. v. Kenilworth, 
 2 Sesa. Cas. 66 ; V Q. B. 642, S. C. ; Smith v. Smith, I. E. 10 Eq. 273. 
 
 3 E. V. Stourhridge, 8 B. & C. 96 ; 2 M. & E. 43, S. C. See Minshall v. 
 Lloyd, 2 M. & W. 450. " M'Gahey v. Alston, 2 M. & W. 206, 212. 
 
CHAP, v.] SEARCH FOR LOST WRITINGS PROPER CUSTODY. 391 
 
 secondary evidence of the contents of a warrant, issued by the 
 defendant, has been received, on proof by the high constable, who 
 levied under it, that he had deposited it in his office, and had 
 sought for it there in vain, though he added that the town-clerk 
 had access to the office, and it was objected that the defendant 
 should have been served with a notice to produce the warrant, and 
 the town-clerk with a subpoena duces tecum.^ 
 
 § 432. It may often be difficult to ascertain what is the proper s 402 
 custody of an instrument,^ and on these occasions it will be always 
 expedient, and sometimes necessary, to search several places. 
 Thus, where a marriage settlement, after providing a portion for 
 younger children, and vesting a legal term in trustees to secure 
 it, reserved an ultimate remainder to the settlor's heir, it was 
 held, that a search among the papers of the surviving younger 
 child was insufficient to let in secondary evidence of its contents, 
 and that the papers of the surviving trustees, and of the heir, 
 should also have been examined.^ Again, an expired indenture 
 of apprenticeship remains sometimes with the master, sometimes 
 with the apprentice ; but as the apprentice appears to have the 
 greatest interest in its preservation,* stricter inquiry should be 
 made of him than of the master, though, in the absence of posi- 
 tive proof respecting the possession, caution would suggest, what 
 strict law might not require,^ a search among the papers of both. 
 The lessor and the lessee appear to be equally entitled to the 
 custody of an expired lease ; for, whether the term has come to 
 an end by efflux of time or by forfeiture, the lessee, for a time at 
 least, will have a right to keep the deed, since he may have occa- 
 sion to use it in an action of covenant against the lessor ; but, 
 after a considerable interval, it will frequently be found in the 
 landlord's possession, as constituting one of the muniments of his 
 title.^ Under these circumstances, prudence dictates an applica- 
 
 ' Fernley v. Worthington, 1 M. & Gr. 491. 
 2 As to this see post, §§ 659—664. 
 
 ^ Ciiiise V. Clancy, 6 Ir. Eq. E. 652, 556, per Sugden, Cli. ; Richards v. 
 Lewis, 11 Com. B. 1035. 
 " See Hall v. Ball, 3 M. & Gr. 247. 
 
 ■• R. V. Hinckley, 32 L. J., M. C. 158 ; 3 B. & S. 885, S. 0. 
 « HaU V. Ball, 3 M. & Gr. 242, 253 ; 3 Scott, N. R. 577, S. C. ; Plaxtoii v. 
 
392 SEARCH FOE LOST WRITINGS. [PART 11. 
 
 tion to both parties, whenever it may be necessary to prove the 
 loss of such an instrument, though it has never been expressly 
 decided that a search among the muniments of the lessor alone 
 would not let in secondary evidence ; and Mr. Justice Bayley, on 
 one occasion, seems to have thought that an examination of the 
 lessee's papers would not be absolutely necessary.^ 
 
 § 433. The legal custody of a document appointing an overseer § 403 
 is in that officer, he being the person most interested in it, and 
 requiring its production as a sanction for those acts which he may 
 be called upon to do under its authority. In the absence, therefore, 
 of proof that the parish officers have the actual custody of such an 
 instrument, it will not suffice to give them notice to produce it, but 
 before secondary evidence can be received it will be necessary to call 
 the overseer himself.^ In a case before Vice- Chancellor Wigram, 
 it appeared that a solicitor, who had prepared an agreement between 
 the plaintiff and defendant, had sent it after execution to the de- 
 fendant by his clerk. This clerk was not called, having quitted the 
 service of the solicitor a long time back ; but the defendant's clerk 
 stated that he had searched for the deed in his counting-house, 
 where the transactions to which it referred were all carried on, and 
 where books containing entries relating to these transactions were 
 kept. His Honour, on this state of facts, expressed no opinion as 
 to the effect of the absence of the solicitor's clerk, but referred the ' 
 case back to the Master, in order that a further search might be 
 made at the defendant's private residence, since it did not appear 
 that his clerk, who had been actively concerned in the transactions 
 in question, had ever seen the deed at the counting-house.* 
 
 Dare, 10 B. & 0. 17 ; 5 M. & E. 1, S. C. ; Elworthy v. Sandford, 34 L. J., Ex. 
 42 ; 3 H. & C. 330, S. C. ; E. v. Nortli Eedburn, Cald. 452, per BuUer, J. ; 
 Doe V. Keeling, 11 Q. B. 884. 
 
 1 Brewster v. Sewell, 3 B. & A. 301, 302 ; Hall v. Ball, 3 M. & Gr. 247 ; per 
 Erskine, J. 
 
 2 E. V. Stoke Golding, 1 B. & A. 173, 176. 
 
 => Hart V. Hart, 1 Hare, 1. In Bligh v. Wellesley, 2 C. & P. 400, a witness 
 stated that he had in vain searched for some papers in a box, ia which he 
 thought he had put them, but that he still fancied they were somewhere 
 in his possession, though he had not looked elsewhere for them. Held in- 
 sufficient, per Best, C. J. 
 
CHAP, v.] SEARCH FOB LOST WRITINGS. 393 
 
 § 434. If the party entitled to the custody of a document be dead, § 404 
 inquiries should generally be made of his personal representatives, 
 and if the document relate to the real estate, of the heir-at-law 
 also ; but these steps will not be necessary, should it appear that 
 another party is in possession of the papers of the deceased. Where, 
 therefore, the master of an apprentice, being possessed of the in- 
 denture, failed, and an attorney took the management of the affairs, 
 and the custody of his papers, a search among these papers by the 
 attorney, after the master's death, was held sufficient to let in 
 secondary evidence of the deed of apprenticeship, though no in- 
 quiries had been made of the master's widow.^ 
 
 § 485. The law does not require that the search should have been § 405 
 recent, or made for the purposes of the cause ; and therefore, where 
 it was made amongst the proper papers three years before the trial, 
 this was held sufficient, though it certainly would have been more 
 satisfactory had the papers been again examined.^ If the instru- 
 ment were executed in duplicate, or triplicate, &c., the loss of all 
 the parts must be proved, in order to let in secondary evidence of 
 the contents ; ' and, in all cases, before such evidence will be ad- 
 missible, it must be shown that the origiual instrument was duly exe- 
 cuted, and was otherwise genuine.* If the iastrument were of such 
 a nature as to have required attestation,^ the attesting witness must, 
 if known, be called, or in the event of his death, his handwriting 
 must be proved, precisely in the same manner as if the deed itself 
 had been produced ; though, if it cannot be discovered who the 
 attesting witness was, this strictness of proof will, from necessity, 
 be waived. In the absence of evidence to the contrary, the court 
 will presume that the instrument was duly stamped.^ 
 
 1 E. V. Piddlehinton, 3 B. & Ad. 460. 
 
 = Fitz V. Babbits, 2 M. & Rob. 60. 
 
 3 E. V. Castleton, 6 T. E. 236 ; B. N. P. 254 ; AKvon v. Fumival, 1 C. M. 
 & E. 292. See ante, § 391. 
 
 * Goodier v. Lake, 1 Atk. 446 ; E. v. Culpepper, Skin. 673 ; Doe v. Wliite- 
 foot, 8 C. & P. 270 ; Jackson v. Frier, 16 Jolms. 196 ; Kimball o. Morrell,'4 
 Greenl. 368. 
 
 5 See 17 & 18 V., c. 125, § 26 ; and 19 & 20 V., c. 102, § 29, Ir. 
 
 « Ante, § 148. 
 
894 PROBATE OF LOST WILL ACTION ON LOST BILL. [PART II. 
 
 § 436. The question has often been mooted in the Court of § 406 
 Probate as to how far the judge is authorised to grant probate, 
 where the will itself has, after the death of the testator, been irre- 
 trievably lost or destroyed ; and the decisions go thus far, that, if 
 the substance of the will can be distinctly ascertained, either by the 
 original instructions, or by a copy of the will, or even by the recol- 
 lection of witnesses who have heard it read, probate may be granted 
 of a copy embodying such substance.-' On one remarkable occasion 
 the contents, or rather, a large portion of the contents, of a lost 
 will, were allowed to be proved by the testimony of a single in- 
 terested witness, whose veracity and competency were unimpeached ; 
 and in that case probate was granted to the extent of the proof.^ 
 In all cases, however, of this nature, it is obviously necessary that 
 the jurisdiction of the court should be exercised with the greatest 
 possible caution ; and the judge will scarcely feel justified in acting 
 on the evidence, unless it be of the most cogent and irrefragable 
 character, not only free from suspicion in its sources, but exact and 
 certain in its conclusions.^ 
 
 § 437. Notwithstanding the rule, which in general enables parties § 407 
 to prove, by secondary evidence, the contents of documents lost or 
 destroyed, on some occasions it was necessary, prior to the year 
 1854, to produce the written instruments themselves. Thus, no 
 action at law could be sustained on a lost bill of exchange, promis- 
 sory-note, or cheque, or on the respective considerations, provided 
 the instrument had been originally drawn payable to order, or 
 bearer, and provided the fact of the loss had been specially pleaded.* 
 
 1 Wliarram v. WLarram, 33 L. J., Pr. & Mat. 75 ; 3 Swab. & Trist. 301, S. C; 
 Podmore v. "VVhatton, 33 L. J., Pr. & Mat. 143 ; 3 Swab. & Trist. 449, S. C. ; 
 Moore v. Wbiteliouse, 34 L. J., Pr. & Mat. 31 ; In re Body, id. 55 ; In re 
 Barber, 36 id. 19 ; Wood v. Wood, id. 34 ; Finch v. Finch, id. 78 ; 1 Law Eep., 
 P. & D. 371, S. C. ; Burls v. Burls, 36 L. J., Pr. & Mat. 125 ; 1 Law Rep., P. 
 & D. 472, S. C. ; In re CaUan, I. E. 9 Eq[. 484 ; Mahood v. -Mahood, I. R. 8 Eq. 
 359. See post, § 550. 
 
 = Sugden v. Ld. St. Leonards, L. J., 1 P. D. 154 ; 45 L. J., P. D. & A. 1 
 & 49, S. 0. 2 Cases in last note but one. 
 
 " Ramuz d. Crowe, 1 Ex. R. 167 ; Clay v. Crowe, 8 Ex. E. 295 ; Crowe v. 
 Clay, 9 Ex. R. 604, S. C. in Ex. Ch. ; Hansard v. Robinson, 7 B. & C. 90 ; 9 D. 
 & R. 860, S. C. ; Pierson v. Hutchinson, 2 Camp. 211 ; 6 Esp. 126, S. C. 
 Mayor v. Johnson, 3 Camp. 324 ; Davis v. Dodd, 4 Taunt. 602 ; Champion v. 
 
CHAP. V.J SECONDABY EYIDENCE OF MURAL MONUMENTS. 395 
 
 As this law, however, was found to occasion great inconvenience to 
 the payee of a lost note, — who, in order to recover payment, was com- 
 pelled to have recourse to a court of equity,^ — it has been materially 
 modified by the Common Law Procedure Act of 1854,*^ which in 
 § 87 enacts, that " In case of any action founded upon a bill of ex- 
 change or other negotiable instrument," — which last words will in- 
 clude a bank note,^ — " it shall be lawful for the court or a judge to 
 order that the loss of such instrument shall not be set up, provided 
 an indemnity is given, to the satisfaction of the court or judge, or a 
 master, against the claims of any other person upon such negotiable 
 instrument."* If the payee of a lost note can show that the in- 
 strument was never negotiable, as having been originally made 
 payable to himself alone, he cannot, as it would seem, be called 
 upon to give an indemnity under this clause, but the action will be 
 sustainable, either on the instrument itself, or on the consideration ; 
 because, in such ease, the defendant cannot be rendered liable to 
 pay the amount a second time.' 
 
 § 438. Secondly, the contents of writings may be proved by § 408 
 secondary evidence, when their production is either physically im- 
 possible, or highly inconvenient. Thus,* inscriptions on walls and 
 fixed tables, mural monuments, gravestones, surveyors' marks on 
 
 Terry, 3 B. & B. 295 ; 7 Moore, 130, S. C. ; Bevan v. Hill, 2 Camp. 381 
 Woodford v. Whiteley, M. & M. 517. See Alexander v. Strong, 9 M. & W. 733 
 Lubtock V. Tribe, 3 M. & "W. 607 ; Blackie v. Bidding, 6 Com. B. 196 
 Chamley v. Grundy, 14 Com. B. 608. 
 
 ^ Warmsley v. Child, 1 Ves. Sen. 341 ; Toulmin v. Brioe, 5 Ves. 238 ; Ex 
 parte Greenway, 6 Ves. 812 ; Macartney v. Graham, 2 Sim. 285 ; Davies v. 
 Dodd, 1 Wils. Ex. 110 ; Mossop v. Eadon, 16 Ves. 430. See, also, 9 & 10 W. 3, 
 c. 17, § 3 ; and 3 & 4 A., o. 9. 
 
 2 17 & 18 V. c. 125. The Irish Act 19 & 20 V., c. 102, contains a similar 
 provision in § 90. ' M'Donnell v. Murray, 9 Ir. Law R., N. S. 495. 
 
 * See Aranquren v. Scholfield, 1 H. & N. 494 ; King v. Zimmerman, 40 L. J., 
 C. P. 278. 
 
 ^ "Wain V. Bailey, 10 A. & E. 616 ; recognised in Ramuz v. Crowe, 1 Ex. R. 
 173 ; Clay v. Crowe, 8 Ex. R. 298. As to what is the effect of the bill being 
 destroyed, see § 322 of the 1st Ed. of this work, and "Wright v. Ld. Maidstone 
 1 Kay & J. 701, per "Wood, V.-C. See, too, Conllans Quarry Co. v. Parker, 3 
 Law Rep., C. P. 1 ; 37 L. J., C. P. 51, S. C. ; where circular notes having been 
 lost, the party losing them was held not entitled to sue the bankers for money 
 had and received. ' Gr. Ev. § 94, in part. 
 
396 FOREIGN DOCUMENTS RECORDS— EEGISTEES. [PAET II. 
 
 boundary trees, notices warning trespassers affixed on boards, and 
 the like, may be proved by secondary evidence, since they cannot 
 conveniently, if at all, be produced in court.^ A remarkable illus- 
 tration of this rule was furnished in the case of a man, who was 
 convicted of writing a libel on the wall of the Liverpool gaol, on 
 mere proof of his handwriting.^ But, in order to let in secondary 
 evidence, it must clearly appear that the document or writing is 
 affixed to the freehold, and cannot easily be removed ; and therefore, 
 where a notice was merely suspended to the wall of an office by a 
 nail, it was considered necessary to produce it at the trial.^ On one 
 occasion, the Committee for Privileges in the House of Lords 
 received in evidence, as proof in a pedigree,* a copy of a plate of 
 the arms of the Knights of the Garter, which had been put up in 
 the Chapel Eoyal at Windsor in the reign of Henry V., and which, 
 being fastened to the building only by screws, was physically re- 
 movable ; but this case seems to rest, at least partly, on the ground 
 that the plate in question could not have been removed without a 
 special warrant from the Queen. ^ If a document be deposited in a 
 foreign country, and the laws or established usage of that country 
 will not permit its removal, secondary evidence of the contents will 
 be admitted, because in that case, as in the case of mural inscrip- 
 tions, it is not in the power of the party to produce the original.^ 
 
 § 439.' On a similar ground, the existence and contents of any § 409 
 record of a judicial court, and of entries in any other public hooks 
 or registers, may be proved by an examined copy, and in some 
 cases by an office copy, by a certified copy, or even by a mere 
 
 1 Mortimer v. M'Callan, 6 M. & W. 68, per Ld. Abinger, and 72, per Alder- 
 son, B. ; E. V. Fnrsey, 6 C. & P. 84, 85 ; Doe v. Cole, id. 360, per Patteson, J. ; 
 Bartholomew v. Stephens, 8 C. & P. 728, per id. ; Bruce v. Nicolopulo, 11 Ex. 
 E. 129. 
 
 2 Mentioned by Ld. Abinger, 6 M. & W. 68. 
 
 3 Jones V. Tarleton, 9 M. & W. 675 ; 1 Dowl. N. S. 625, S. C. 
 
 ■* Semble, the above evidence would not have been admissible, had not the 
 question at issue related to a pedigree, Berkeley Peer., 8 H. of L. Cas. 21, 37. 
 
 * Shrewsbury Peer., 7 H. of L. Cas. 1, 10. 
 
 8 Alivon V. Furnival, 1 C. M. & E. 277, 291, 292 ; Boyle v. Wiseman, 10 
 Ex. E. 647 ; Quilter v. Jorss, 14 Com. B., N. S. 747, S. C. See 14 & 15 V., 
 c. 99, § 7 ; and Crispin v. Doglioni, 32 L. J., Pr. & Mat. 109. 
 
 ? Gr. Ev. § 91, in part. 
 
CHAP, v.] PAPERS IN POSSESSION OF OPPONENT. 397 
 
 certificate.^ This rule extends to all records, and entries of a 
 public nature in books required by law to be kept ; and is 
 adopted, — partly, because of the serious risk of loss which the 
 removal of such documents would occasion, — ^partly, because of 
 the inconvenience which the public might experience from the 
 removal, especially if the documents were wanted in two or more 
 places about the same time, — and partly, because of the public 
 character of the facts recorded, and the consequent facility of 
 detection of any fraud or error in the copy.^ 
 
 § 440. Thirdly, when the document is in the possession of the § 410 
 adversary, who withholds it at the trial, secondary evidence of its 
 contents will be admitted, provided that a notice to produce the 
 original has been duly served, where such notice is requisite.^ In 
 the application of this rule, no distinction is recognised between 
 civil and criminal cases ; but in either mode of proceeding, in order 
 to render the notice available, it must be first shown that the in- 
 strument is in the hands, or under the control, of the party required 
 to produce it.* Of this fact very slight evidence will raise a sufficient 
 presumption, where the document exclusively belongs to him, or 
 regularly ought to be in his custody according to the course of 
 business; and therefore, where a bankruptcy certificate was proved 
 to have been obtained for the defendant, the court presumed that it 
 had come into his possession. ^ So, if papers were last seen in the 
 hands of the defendant, it lies upon him to trace them out of his 
 possession,^ and for this purpose he may interpose with evidence 
 while the plaintiff's case is proceeding ; and, as such evidence is 
 submitted to the judge alone, its admission does not give the plain- 
 tiff's counsel a right to reply to the jury.''' It would seem that, 
 
 1 This subject will be discussed post, § 1534, et seq. ^ ^ ]sf, p. 226. 
 
 3 E. V. Watson, 2 T. E. 201, per BuUer, J. ; Att.-Gen. v. Le Marobant, id. n. ; 
 Gates V. Winter, 3 T. E. 306. As to the presumption respecting the stamp, see 
 ante, § 148. 
 
 •• Sharpe v. Lamb, 11 A. & E. 805 ; 3 P. & D. 454, S. C. 
 
 5 Henry v. Leigh, 3 Camp. 502, per Ld. EUenborough. See, also, Eobb v. 
 Starkey, 2 G. & Kir. 143. 
 
 <= E. V. Thistlewood, 33 How. St. Tr. 757, 758 ; E. v. Ings, id. 989. 
 
 ? Harvey v. Mitchell, 2 M. & Bob. 366, per Parke, B. ; Smith v. Sleap, 1 
 C. & Kir. 48, per Alderson, B. 
 
398 NOTICE TO PBODUCE POSSESSION BY AGENT. [PAET II. 
 
 where a party has notice to produce a particular instrument traced 
 to his possession, he cannot object to parol evidence of its contents, 
 on the ground that, previous to the notice, he had ceased to have 
 any control over it, unless he has stated this fact to the opposite 
 party, and has pointed out to him the person to whom he delivered 
 it ; ^ neither can he escape the eifect of the notice, by aftei-wards 
 voluntarily parting with the instrument, which it directs him to 
 produce.^ 
 
 § 441. If the instrument be in the possession of a person in § 411 
 privity with the party, such as his banker,^ agent, servant, deputy, 
 or the like, such person need not be served with a subpoena duces 
 tecum, or even be called as a witness, but a notice given to the 
 party himself will sufi&ce.* Thus, a notice to a shipowner to pro- 
 duce papers, though the captain has possession of them for his 
 own protection,^ — or a notice to a sheriff to produce a warrant, 
 which is shown to have been returned to the under-sheriff during 
 the time that the sheriff remained in of&oe,^ — will justify the 
 admission of secondary evidence. Where a document deposited 
 in a court of equity by a party to a suit, and scheduled in his 
 answer, had been ordered to be delivered to him, it was held to 
 be sufficiently within his control to let in secondary evidence after 
 notice to produce, though it appeared that, at the time of the trial, 
 the document was still in the hands of an officer of the court.'' 
 But though, in order to render the notice available, the party need 
 not have actual possession of the instrument, he must have such a 
 right to it as would entitle him, not merely to inspect, but to retain 
 
 * Sinclair v. Stevenson, 1 0. & P. 585, 586, per Best, C. J. In Knight v. 
 Martin, Qow, R. 103, where secondary evidence was held inadmissible, the 
 party, who was served with notice to produce a lease, told his opponent that he 
 had assigned it. 
 
 2 Per Dallas, C. J., in Knight v. Martin, Gow, R. 104. 
 ^ Partridge v. Coates, Ry. & M. 156, per Abbott, C. J. ; Burton v. Payne, 
 2 C. & P. 520, per Bayley, J. 
 
 * Sinclair v. Stevenson, 1 C. & P. 584, per Best, C. J. 
 
 * Baldney v. Ritchie, 1 Stark. R. 338, per Ld. Ellenlxirough. 
 
 ' Taplin v. Atty, 3 Ring. 164 ; Suter v. Burrell, 2 H. & N. 867 ; 27 L. J., 
 Ex. 193, S. C. 
 
 ' Rush V. Peacock, 2 M. & Rob. 162, per Ld. Dennaan. 
 
CHAP, v.] SERVICE OF NOTICE CONTENTS OF NOTICE. 399 
 
 it ; and, therefore, where it was held by a stakeholder between the 
 defendant and a stranger to the cause,^ or where it was delivered 
 to a third person, under whom the defendant justified in an action 
 of trespass, and by whose directions he acted,^ parol evidence of 
 its contents was rejected, notwithstanding that a notice to produce 
 had been duly served on the defendant. 
 
 § 442. The notice, — which must, as it would seem, be given in § 412 
 writing,^ — may be directed to the party or to his solicitor, and may 
 be served on either ; * indeed, it will be sufficient to leave the notice 
 with a servant of the party at his dwelling-house,^ or with a clerk at 
 the solicitor's office ; and where the solicitor has been changed, a 
 notice served on the first solicitor before the change will suffice ; for 
 otherwise the effect of the notice might be easily evaded by changing 
 the legal adviser on the eve of the trial.^ A notice duly served on 
 the party will not be rendered invalid by a subsequent bad service 
 on the solicitor.'' 
 
 § 443. It may be difficult to lay down any general rule as to § 413 
 what the notice ought to contain, since much must depend on the 
 particular circumstances of each case ; but thus much is clear, first, 
 that no misstatement or inaccuracy in the notice will be deemed 
 material, if it be not really calculated to mislead the opponent ; ^ 
 and next, that it is not necessary, by condescending minutely to 
 dates, contents, parties, &c., to specify the precise documents 
 intended. Indeed, it may be dangerous to do so, since if any 
 material errors were to creep into the particulars, the party sought 
 
 1 Parry v. May, 1 M. & Eob. 279, per. Littledale, J. 
 
 2 Evans v. Sweet, Ry. & M. 83, per Best, C. J. 
 
 ' See Rules of Sup. Ct., Order xxxi., r. 14 ; Order Ivi., r. 1. But see Smith 
 V. Young, 1 Camp. 440. 
 
 ■> Hughes 1). Budd, 8 Dowl. 315 ; R. v. Barker, 1 Post. & Fin. 326 ; R. ■;;. 
 Boucher, id. 486 ; Houseman v. Roberts, 5 C. & P. 394 ; Gates v. Winter, 
 3 T. R. 306. This last case was a qui tarn action. See E. v. Downham, 1 
 Post. & Fin. 386. 
 
 5 Evans v. Sweet, Ry. & M. 84, per Best, C. J. 
 
 « Doe V. Martin, 1 M. & Rob. 242, per Tindal, 0. J. 
 
 ^ Hughes v. Budd, 8 Dowl. 315, per Patteson, J. 
 
 s Justice ■;;. Elstob, 1 Fost. & Fin. 258 ; Graham v. Oldis, id. 262. 
 
400 CONTENTS OF NOTICE TO PRODUCE. [PABT 11. 
 
 to be affected by the notice might urge, with possible success, 
 that he had been misled thereby. If enough is stated on the 
 notice to induce the party to believe that a particular instrument 
 will be called for, this will be sufficient.^ Thus a notice to pro- 
 duce "all letters written by the plaintiff to the defendant, relating 
 to the matters in dispute in the action,"^ or "all letters written 
 to or received by the plaintiff between the years 1837 and 1841, 
 both inclusive, by and from the defendants, or either of them, 
 or any person in their behalf; and also all books, papers, &c., 
 relating to the subject matter of this cause," ^ has been held 
 sufficient to let in parol evidence of a particular letter not other- 
 wise specified. In these cases the names of the parties by and 
 to whom the letters were addressed appeared on the notice, and 
 perhaps this circumstance sufficiently distinguishes them from an 
 older decision,* where a notice to produce " all letters, papers, 
 and documents, touching or concerning the bill of exchange 
 mentioned in the declaration, and the debt sought to be re- 
 covered,"^ was held too vague to admit secondary proof of a 
 notice of dishonour sent by plaintiff to defendant. The authority, 
 however, of this last case has been considerably shaken, if not 
 entirely overruled, by a subsequent decision of the Court of Queen's 
 Bench, where, in an action for work and labour, a notice to pro- 
 duce " all accounts relating to the matters in question in this 
 cause," was held to point out with sufficient precision a particular 
 account relating to a small part of the work, though it appeared 
 that many such accounts for different parts of the work had been 
 rendered by the plaintiff to the defendant.^ The case of Jones v. 
 Edwards'" is not affected by this decision. That was an action 
 against four defendants, as owners of a sloop, to recover an account 
 
 ' See Eogers v. Custance, 2 M. & Rob. 181. 
 
 ^ Jacob v. Lee, 2 M. & Rob. 33, per Patteson, J. ; Conybeare v. Parries, 5 
 Law Rep., Ex. 16. 
 
 3 Morris v. Hauscr, 2 M. & Rob. 392, per Ld. Denman ; C. & Marsh. 29, S. C, 
 nom. Morris v. Hannen. 
 
 * This distinction was pointed out and relied upon by Patteson, J., in Jacob 
 V. Lee, 2 M. & Rob. 33. 
 
 ^ France v. Lucy, Ry. & M. 341, per Bust, C. J. 
 
 ^ Rogers v. Custance, 2 M. & Rob. 170. 
 
 J M'Cl. & Y. 139. 
 
CHAP, v.] TIME AND PLACE OF SERVICE OP NOTICE. 401 
 
 for warehousing the rigging of the vessel. In order to prove that 
 one of the defendants was a joiat owner, the plaintiff called for a 
 letter, which was stated to have been written nine years before by 
 this defendant to the son of another defendant, and relied upon a 
 "notice to produce letters and copies of letters, and all books re- 
 lating to the cause." The Court decided that the notice was too 
 uncertain, and no sensible man could entertain a different opinion. 
 
 § 444. In one case, where the notice misdescribed the title of § 414 
 the cause, it was held to be invalid ; ^ but as the strict application 
 of this rule, in cases where it is evident that the party served has 
 not been misled, might be productive of serious injustice, it is 
 hoped that, at the present day, it would not be allowed to prevail, 
 unless the misdescription were of a flagrant nature. Indeed, the 
 Court of Exchequer has thrown out an intimation to this effect ; 
 for where a notice was objected to on the ground that it was 
 entitled (by mistake) in a wrong court, Mr. Baron Alderson dis- 
 countenanced the objection, saying, "One does not know where 
 we are to stop. Would the notice be bad if one of the names 
 was spelt wrong ? . . At the time of the decision in Harvey v. 
 Morgan, the courts were much more strict than now as to matters 
 of this nature."^ 
 
 § 445. As to the time and place of the service, no precise rule § 415 
 can be laid down, except that it must be such as to enable the 
 party, under the known circumstances of the case, to comply with 
 the call.^ If the person to be served, whether client or solicitor, 
 dwell in another town than that in which the trial is had, he must 
 generally be served before the commission day,* and if the service 
 be postponed till he has left home to attend the court, it will be 
 
 ' Harvey v. Morgan, 2 Stark. R. 17. The notice in that case was entitled 
 " A. & B., assignees of C. & D., v. E.," instead of " A. & B., assignees of 0. v. E." 
 
 2 Lawrence v. Clark, 14 M. & W. 251. 
 
 3 R. V. Hankins, 2 C. & Kir. 823 ; R. v. Kitson, Pearce & D. 187. 
 
 * Trist V. Johnson, 1 M. & Rob. 259, per Park, J. ; R. v. Ellicomhe, id. 260, 
 per Littledale, J. ; Lessee of Leader v. Duggan, Ir. Cir. R. 124 ; Humphrey v. 
 St. Leger, id. 714 ; M'Master & Boyle's case, id. 768. See Howard v. Williams, 
 9 M. & W. 725. 
 
 B D 
 
402 TIME OF SERVING NOTICE TO PRODUCE. [PART II. 
 
 insufQcient.^ In town causes, however, and in country causes 
 where the solicitor lives in the assize town, a shorter notice will 
 be required, and provided the documents be such as may reason- 
 ably be presumed to be in the solicitor's possession, a service on 
 him, or at his office, early in the evening of the day preceding 
 the trial, will in general be sufficient ; ^ though, if they would pro- 
 bably be in the client's custody, — as, for instance, if they were a 
 tradesman's books,^ or if they were letters or papers not obviously 
 connected with the cause, — such a service would be too late, since 
 the solicitor should have sufficient time to communicate with his 
 client for the purpose of procuring the documents required.* If a 
 party be served with notice sufficiently early to enable him to pro- 
 duce the document, it makes no difference that at the time of the 
 service the cause is part heard. ^ 
 
 § 446. If the party served can prove that his papers are in a § 416 
 foreign country, or at such a distance from the place of trial as to 
 render it impossible for him to produce them under an ordinary 
 notice, such a notice will be inoperative ; but the courts are very 
 properly inclined to favour the sufficiency of the notice, whenever 
 
 1 George v. Thompson, 4 Dowl. 656 ; Hargest v. FothergUl, 5 C. & P. 303, 
 per Taunton, J. 
 
 2 Atkins V. Meredith, 4 Dowl. 658 ; Leaf v. Butt, C. & Marsh. 451, per 
 Alderson, B. ; Meyrick v. Woods, id. 452, per id. ; Firkin v. Edwards, 9 C. & 
 P. 478, per Williams, J. ; Gibbons v. PoweU, id. 634, per Gurney, B. ; R. v. 
 Hamp, 6 Cox, 167, per Ld. Campbell. In Holt v. Miers, 9 C. & P. 195, the 
 service was held by Ld. Abinger to be insufficient, the notice being left at the 
 attorney's ofiice a few minutes before nine on the evening preceding the trial, 
 and the attorney having at that time gone home. So, in an action on a bill of 
 exchange, where notice to produce the bill was put into the letter-box of the 
 office of the plaintiff's attorney, in London, at half-past eight on the evening 
 before the cause was tried at the Middlesex sittings, it was held to be too late, 
 though the plaintiff also lived in London ; Lawrence v. Clark, 14 M. & W. 250. 
 If the trial is to take place on the Monday, a service on the Sunday will not 
 do ; and perhaps a service on a Sunday would in any event be considered 
 irregular and bad. See Hughes v. Budd, 8 Dowl. 317, per Patteson, J. ; and 
 29 C. 2, c. 7, § 6. 
 
 8 Atkins V. Meredith, 4 Dowl. 658. 
 
 < Byrne v. Harvey, 2 M. & Bob. 89, per Ld. Denman ; Vice v. Lady 
 Anson, M. & M. 97, per Ld. Tenterden ; Aflalo v. Fourdrinier, id. 335, n., per 
 Tindal, C. J. 
 
 5 Sturm V. Jeffree, 2 C. & Kir. 442, per Pollock, C. B. 
 
CHAP. V.J TIME OF SERVING NOTICE TO PRODUCE. 403 
 
 the circumstances of the case will warrant them in so doing. 
 Thus, where a party had gone abroad, leaving the cause in the 
 hands of his solicitor, it was presumed that he had left with 
 him all papers material to the cause, and, consequently, a notice 
 served on the solicitor the evening next hut one before the trial, 
 was held to be sufficient.'^ So, a four days' notice, gifen to the 
 defendant to produce letters written by him to his partner in New 
 South Wales, was considered good, where long litigation on the 
 subject of them made it presumable that they had been remitted 
 to this country.^ It has even been held, that a similar notice to 
 a foreign defendant was sufficient, though the letters required had 
 been addressed to him eighteen years before at his residence 
 abroad. In that case, the action had commenced seven months 
 before the trial ; and though it was objected that the defendant 
 had had no time to procure the original papers to be transmitted 
 from his own country, where it was to be presumed they had been 
 left. Chief Justice Abbott admitted secondary evidence of their 
 contents, observing that it would lead to great inconvenience and 
 delay, if trials were allowed to be postponed upon such an 
 objection.^ 
 
 § 447. The party who seeks the production of papers must not § 417 
 put his adversary to needless trouble and expense. Therefore, 
 where a defendant's attorney, having been served in Essex with 
 notice to produce certain deeds, fetched them from London, and 
 on the commission day was served with a fresh notice to produce 
 another deed, upon which he stated that the document was in 
 town, where he had already been once, but that it should be 
 forthcoming at the trial if the plaintiff would pay the expenses 
 of a messenger, which offer was declined, the court held that 
 the defendant was justified in not complying with the notice, 
 and that secondary evidence was inadmissible.* If a party, on 
 
 1 Bryan v. Wagstaflf, Ry. & M. 327, per Abbott, C. J. ; 2 C. & P. 125, S. C. 
 ^ Sturge V. Bucbanan, 10 A. & E. 598. 
 
 3 Drabble v. Donner, Ey. & M. 47. But see Ekrenspergen v. Anderson, 3 
 Ex. K 148. 
 
 * Doe V. Spitty, 3 B. & Ad. 182. In this case, tbe second notice, having 
 
 D D 2 
 
404 NOTICE TO PBODUCE WHEN XJNNECESSAEY. [PAET II. 
 
 being served with a notice to produce a document, states that it 
 is not in existence, parol proof of its contents will be received, 
 and no objection can be taken to the lateness of the service.^ It 
 may here be added, that a notice to produce certain documents 
 " upon the trial of the cause," applies not merely to the trial 
 which it immediately precedes, but to every subsequent trial of the 
 same cause which may take place.^ 
 
 § 448. The mode of proving that a notice to produce has been § 418 
 duly served is now partially regulated by § 119 of " The Common 
 Law Procedure Act, 1852," ^ which enacts, that "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 ad/i7iit 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." 
 
 § 449. In seven cases notice to produce is not necessary. The § 419 
 first is, where the instrument in the possession of the adversary, 
 and that tendered in proof, are either duplicate originals,^ or are 
 counterparts, and the part offered in evidence has been executed 
 by the adversary, or by some person through whom he claims. 
 Here no notice is necessary, because, as before stated, the instru- 
 ment produced is considered, not as secondary, but as primary 
 evidence.^ 
 
 § 450. Secondly, a notice to produce is not required, where the § 420 
 instrument to be proved is itself a notice. This exception appears 
 to have been originally adopted in regard to notices to produce, for 
 
 been served on the commission day, would perhaps have been held too late, 
 independent of the special circumstances. 
 
 1 Foster v. Pointer, 9 C. & P. 720, per Gurney, B. 
 
 ' Hope V. Beadon, 2 L. M. & P. 593 ; 17 Q. B. 509, S. 0. 
 
 3 15 & 16 v., c. 76. The Irish Act, 16 & 17 V., c. 113, contains, in § 120, 
 a similar provision. ■! See post, § 450. 
 
 ° Colling V. Treweek, 6 B. & C. 398, per Bayley, J. ; Philipson v. Chase, 2 
 Camp. Ill, per Ld. Ellenborough. « Ante, § 426. 
 
CHAP, v.] NOTICE TO PRODUCE A NOTICE UNNECESSAEY. 405 
 
 the ob-vious reason, that, if a notice to produce such papers were 
 necessary, the series of notices would become infinite.^ The judges, 
 however, have subsequently extended the exception to many other 
 notices ; partly, perhaps, from a misapprehension of the ground on 
 which the doctrine rests ; ^ partly, from the experienced inconveni- 
 ence attendant on a strict observance of the rule requiring notice ; ^ 
 partly, because the secondary evidence that is usually offered of a 
 notice is a copy of the paper sent, which partakes in great measure 
 of the character of a duplicate original ; * and, chiefly, because it 
 constantly happens that the opposite party is well aware, from the 
 nature of the action, that he will be charged with the possession of 
 the original document.^ On one or other of these grounds, it has 
 been held, that, in order to let in proof by a copy, if not any species 
 of secondary evidence, no notice is required to produce a notice to 
 quit ; ^ a notice of dishonour,'' provided the action be brought upon 
 the bill, but not otherwise ; * notices of action, or written demands, 
 which are necessary to entitle the plaintiff' to recover ; ^ and bills of 
 costs of solicitors, and parliamentary agents, delivered pursuant to 
 statute.^" 
 
 1 3 St. Ev. 730 ; Philipson v. Chase, 2 Camp. 111. But see ante, § 448. 
 
 2 In Philipson ■!). Chase, 2 Camp. Ill, Ld. Ellenborougli observes, " I approve 
 of the practice as to notices to quit ; and I remember when the point was first 
 ruled by Wilson, J., who said, that if a duplicate of the notice to quit was not 
 of itself sufficient, no more ought a duplicate of the notice to produce, and thus 
 notices might be required in infinitum." The fallacy of this reasoning is ably 
 exposed in 3 St. Ev. 730. 
 
 3 2 Ph. Ev. 226, n. 5. * Kine v. Beaumont, 3 B. & B. 291. 
 
 * Colling V. Treweek, 6 B. & C. 399, 400, per Bayley, J. ; Eobinson v. Brown, 
 3 Com. B. 754, per Maule, J. See post, § 452. 
 
 « Doe V. Somerton, 7 Q. B. 58 ; Jory v. Orchard, 2 B. & P. 41, per Ld. 
 Eldon ; Colling v. Treweek, 6 B. & C. 398, per Bayley, J. See B. v. Mortlock, 
 7 Q. B. 459. 
 
 ' Swain v. Lewis, 2 C. M. & R. 261 ; 5 Tyr. 998, S. C. ; Kine v. Beaumont, 
 3 B.'& B. 288 ; 7 Moore, 112, S. C. ; AoMand v. Pearce, 2 Camp. 601, per Le 
 Blanc, J. ; Roberts v. Bradshaw, 1 Stark. R. 28 ; CoUing v. Treweek, 6 B. & C. 
 398, per Bayley, J. These cases, — the first two of which were decided after 
 conferring with the judges of the other courts, — put the question beyond all 
 dispute, and overrule the earlier decisions of Langdon v. HuUs, 5 Esp. 156, and 
 Shaw V. Markham, Pea. R. 165. 
 
 ' Lanauze v. Palmer, M, & M. 31, per Abbott, C. J. 
 
 s Jory 1). Orchard, 2 B. & P. 39, 
 
 1" Colling V. Treweek, 6 B. & C. 394 ; 9 D. & R. 456, S. C. This case was 
 
406 WHEN NOTICE TO PBODUCE UNNECESSARY. [PAET II. 
 
 § 451. On one occasion, where an action was brought against a § 421 
 surety, on a bond conditioned to pay to the plaintiff, within six 
 months after notice, the sum that should become due from the 
 principal, a notice to produce this notice was held necessary by 
 Lord EUenborough, on the ground that it was not a mere notice, 
 but in the nature of a statement of account between the plaintiff 
 and the principal.^ Whether this case would now be considered a 
 binding authority, may be well questioned, since, in principle, it is 
 difficult to distinguish it from several of the cases cited aboTe, in 
 which the notice to produce has been deemed unnecessary. But, 
 be this as it may, the judges have determined, — in a case where 
 two parties had become sureties, by a joint and several bond, for 
 the payment, within one month after notice should have been 
 given to them, of such sum as should be due from their prin- 
 cipal, — that the service of notice upon one of the parties could 
 not be proved in an action brought against the other, by pro- 
 ducing the duplicate of the notice, but the first party should have 
 been subpoenaed to produce the original, or to account for its non- 
 production.^ Indeed, the exception would seem to be always inap- 
 plicable to cases in which the notice has been served on a third 
 person.^ 
 
 § 452. Thirdly, if, from the nature of the action, or indictment, § 422 
 or from the form of the pleadings, the defendant must know that 
 he will be charged with the possession of an instrument, and be 
 called upon to produce it, no notice to produce need be served upon 
 him.* Thus, in an action of trover for converting a bond, a bill 
 of exchange, or other writing,^ or in a prosecution for stealing any 
 document,^ the counsel for the plaintiff or the Crown may at once 
 
 decided on § 23 of the repealed Act, 2 G. 2, c. 23, but it is equally applicable 
 to § 37 of 6 & 7 v., c. 73. 
 
 ' Grove V. Ware, 2 Stark. R. 174. 
 
 2 Robinson v. Brown, 3 Com. B. 754. s i^_ 
 
 " Colling V. Treweek, 6 B. & C. 398, 399, per Bayley, J. See ante, §§ 407, 408. 
 
 ^ Scott V. Jones, 4 Taunt. 865 ; How v. Hall, 14 East, 275 ; Bucher v. 
 Jarratt, 3 B. & P. 143. These oases overrule Cowan v. Abrahams, 1 Esp. 50. 
 
 " R. V. Aickles, 1 Lea. 297, n. a ; R. v. Brennan, 3 Craw. & D. C. C. 109, 
 per Perrin, J. 
 
CHAP, v.] WHEN NOTICE TO PEODUCE UNNECESSAEY. 407 
 
 produce secondary evidence of its contents, even though the defen- 
 dant should offer to produce the document itself ; ^ and this excep- 
 tion has been recognised in an action on contract against a carrier 
 for the non-delivery of written instrumentSj'^as also in indictments 
 for conducting a traitorous correspondence.^ It has, however, been 
 held inapplicable on a charge of forging a deed ; * and no doubt can 
 be entertained that an indictment for arson, with intent to defraud 
 an insurance office, does not convey such a notice that the policy 
 will be required, as to dispense with a formal notice to pro- 
 duce.^ So, if the maker of a note or cheque, or the acceptor of a 
 bill, does not, as defendant in an action, deny by his plea the 
 making or acceptance, the plaintiff, who is not bound to produce 
 the instrument as part of his case,^ since it is admitted on the 
 record, may object to the defendant's giving secondary evidence of 
 its contents, for the purpose even of identification, unless a notice 
 to produce has been duly served,'' or unless the instrument is shown 
 to be in court. ^ 
 
 § 453. Fourthly, in odium spoliatoris, a notice need not be § 423 
 given to the adverse party to produce a paper, of which he has 
 fraudulently or forcibly obtained possession, as where, after action 
 brought, he has received it from a witness, in fraud of a subpcsna 
 duces tecum.^ 
 
 ' WMtehead v. Scott, 1 M. & Rob. 2, per Ld, Tenterden. 
 
 == Jolley V. Taylor, 1 Camp. 143, per Sir J. Mansfield, C. J. 
 
 3 E. V. De la Motte, 1 East, P. 0. 124 ; Layer's Case, 16 How. St. Tr. 170, 
 IVI. 
 
 •* E. V. Haworth, 4 C. & P. 254, per Parke, J. See Spr^ge's case, cited by 
 Ld. EUenborough, 14 East, 276 ; also, E. v. Elworthy, 1 Law Eep., C. C. 103 ; 
 37 L. J., M. C. 3, S. C. 
 
 ° E. V. EUicombe, 5 C. & P. 522, per Littledale, J, ; 1 M. & Eob. 260, S. 0. ; 
 E. V. Kitson, 22 L. J., M, C. 118 ; Pearoe & D. 187, S, C. See E. v. Hum- 
 pMes, cited 2 Euss. C. & M. 745 ; E. v. Mortlook, 7 Q. B. 459. 
 
 « The plaintiff, however, cannot recover interest on the bill from the date of 
 its maturity without producing it. Hutton v. "Ward, 15 Q. B. 26 ; Chaplin 
 V. Levy, 9 Ex. E. 534, per Parke, B. 
 
 7 Goodered v. Armour, 3 Q. B. 956 ; explaining Eead v. Gamble, 5 N. & M. 
 433 ; 10 A. & E. 597, n. a, S. C. ; Lawrence v. Clark, 14 M. & W. 250, 253. 
 See, also, Chaplin v. Levy, 9 Ex. E. 534, per Parke, B. 
 
 8 Dwyer v. CoUins, 7 Ex. E. 639. 
 
 " Leeds e. Cook, 4 Esp. 256, per Ld. Ellenborough ; Doe v.- Eies, 7 Bing. 724. 
 
408 WHEN NOTICE TO PRODUCE UNNECESSAEY. [PAET II. 
 
 § 454. Fifthly, the Legislature has interfered on behalf of mer- § 424 
 chant seamen, whose proverbial inexperience and recklessness have 
 rendered them fit objects for special statutory protection, and has 
 enacted, that every seaman may bring forward evidence to prove 
 the contents of his agreement with the master of the ship, or 
 otherwise to support his case, without producing or giving notice 
 to produce the agreement itself or any copy of it.^ 
 
 § 455. Sixthly, notice will not be required, either where the § 425 
 adverse party or his solicitor has admitted the loss of the docu- 
 ment, for in such case the notice would be nugatory,^ or, it seems, 
 where the party in possession of the writing might himself give 
 secondary evidence of its contents without producing it, as, for 
 instance, if it be an inscription or notice attached to the freehold.^ 
 A party, however, cannot under this exception call witnesses to 
 prove the destruction of a document that has been traced into the 
 hands of his opponent, and then show its contents by secondary 
 proof without serving a notice to produce, because, notwith- 
 standing evidence to the contrary, the document may still be iu 
 existence, and, at any rate, the opponent may dispute the fact of 
 its destruction.* 
 
 § 456. Lastly, a notice to produce is rendered unnecessary by § 426 
 proof that the adverse party, or his solicitor, has the original 
 instrument in court ; for the object of the notice is not, — as was 
 formerly thought,^ — to give the opposite party an opportunity of 
 providing the proper testimony to support or impeach the docu- 
 ment ; but it is merely to enable him to produce it, if he likes, 
 
 ' 17 & 18 v., c. 104, § 165. See Bowman v. Manzelman, 2 Camp. 315, 
 wMch deoides the same point, on the construction of the repealed stat. 2 G. 2, 
 c. 36, § 8. 
 
 2 R. V. Haworth, 4 C. & P. 254, per Parke, J. ; Foster v. Pointer, 9 C. & P. 
 718, per Giu?ney, B. ; How v. Hall, 14 East, 276, per Ld. Ellenhorough ; Doe 
 V. Spitty, 3 B. & Ad. 182. 
 
 ^ Bartholomew v. Stephens, 8 C. & P. 728, per Patteson, J. 
 
 ^ Doe V. Morris, 3 A. & E. 46 ; 4 N. & M. 598, S. C. 
 
 ^ Bate V. Kinsey, 1 C. M. & R. 38 ; Cook v. Hearn, 1 M. & Rob. 201, per 
 Patteson, J. ; Doe v. Grey, 1 Stark. R. 284, per Ld. EUenhorongh ; Exall v. 
 Partridge, id., cited as ruled per Ld. Kenyon. 
 
CHAP, v.] SECONDARY EVIDENCE WHEN ADMISSIBLE. . 409 
 
 at the trial, and thus to secure the best evidence of its contents.^' 
 The question is yet undecided, as to whether a solicitor would 
 be ordered to search among his papers, if, on being called by his 
 client's opponent to state whether he had a particular document 
 in court, he were to assert that he did not know whether he had 
 brought it with him or not, and that he did not intend to ascertain 
 that fact, unless he were compelled to do so by the judge. 
 
 § 457. Secondary evidence is, in the fourth place, admissible, § 427 
 when a document is in the hands of a stranger, who is not com- 
 pellable by law to produce it, and who refuses to do so, either when 
 summoned as a witness with a subpoena duces tecum,^ or when 
 sworn as a witness without a subpcena, if he admits that he has 
 the document in court.^ In applying this rule it must be carefully 
 borne in mind, that the mere disobedience of a person served with 
 a subpoena duces tecum will not render admissible secondary 
 evidence of the contents of the document which he is called upon 
 to produce ; * but the witness must also be justified in refusing the 
 production, for otherwise the party will have no remedy, except as 
 against him.^ The reason why the rule is recognised at all is the 
 same as that which admits parol proof, when the adversary, after 
 notice, refuses to produce a deed in his possession, — namely, that 
 the party offering secondary evidence has done all in his power to 
 obtain the original document.^ If therefore a solicitor refuses to 
 produce a deed as claiming a lien upon it, secondary evidence of its 
 contents cannot be received, provided the party tendering such 
 evidence be the person hable to pay the solicitor's charges.'' So, 
 also, if a solicitor, who is not acting under special instructions 
 from his client, declines to produce an instrument on the ground 
 
 » Dwyer v. Collins, 7 Ex. R. 639. 
 
 2 Marston v. Downes, 1 A. & B. 31 ; 4 N. & M. 861 ; 6 C. & P. 381, S. C. ; 
 Doe V. Boss, 7 M. & W. 102 ; Mills v. Oddy, 6 C. & P. 728, per Parke, B. 
 The case of Doe v. Owen, 8 C. & P. 110, can no longer be supported. 
 
 3 Doe V. Clifford, 2 C. «& Kir. 448, per Alderson, B. ; Newton v. Chaplin, 10 
 Com. B. 356. 
 
 * Jesus Coll. V. Gibbs, 1 Y. & C. Ex. R. 156. 
 
 s R. V. Llanfaethly, 2 E. & B. 940. « Doe v. Ross, 7 M. & W. 122. 
 
 " Att.-Gen. V. Ashe, 10 Ir. Eq. R., N. S. 309. 
 
410 . WHEN WITNESS NOT BOUND TO PEODUCE DOCUMENT. [PAKT II. 
 
 of privilege, it may be very questionable whether the client must 
 not be subpoenaed, in order to ascertain whether he also relies on 
 his right to withhold the deed ; ^ and this course will assuredly be 
 prudent, inasmuch as the privilege is, in strictness, not that of the 
 soHcitor, but that of the client. If, indeed, the solicitor can under- 
 take to swear that his chent has instructed him not to produce the 
 instrument, it vrill not be necessary to subpoena the client ; for in 
 such a case the court would very properly assume that the chent, if 
 called, would continue to be of the same mind.^ 
 
 § 458. Upon principles of reason and equity, judges will refuse § 428 
 to compel either a witness or a party to a cause' to produce either 
 his title-deeds,* or any document the production of which may tend 
 to criminate him,^ or any document which he holds as mortgagee ^ 
 or pledgee.''' But a witness will not be allowed to resist a subpcena 
 duces tecum on the ground of any lien he may have on the docu- 
 ment called for as evidence,^ unless the party requiring the produc- 
 
 1 Doe V. Ross, 7 M. & W. 122 ; Newton v. Cliaplin, 10 Com. B. 356 ; In re 
 Cameron's Coalteook, &o.. Bail. Co., 25 Beav. 1. 
 
 2 Phelps V. Frew, 3 E. & B. 430. 
 
 ^ The rule, so far as it relates to parties, appears to he this ; a plaintiff wiU 
 not be compelled to produce muniments of title which he swears do not, to the 
 best of his knowledge, information, and belief, contain anything impeaching 
 his case, or supporting or material to the case of the defendant. Minet v. 
 Morgan, 8 Law Rep., Ch. Ap. 361 ; 42 L. J., Ch. 627, S. C. 
 
 * Pickering v. Noyes, 1 B. & C. 263 ; 2 D. & R. 386, S. C. ; Harris v. Hill, 
 2 Stark. R. 140, per Abbott, C. J. ; D. & R., N. P. R. 17, S. C. ; R. v. Upper 
 Boddington, 8 U. & R. 726 ; Doe v. Clifford, 2 C. & Kir. 448. 
 
 ' See Whitaker v. Izod, 2 Taunt. 115. 
 
 " Doe V. Ross, 7 M. &-W. 102, 122 ; 8 Dowl. 389, S. C. ; explained by Ld. 
 Just. Turner in Hope v. Liddell, 24 L. J., Ch. 694 ; 7 De Gex, M. & G. 338, 
 S. C. ; Chichester v. Marq. of Donegal, 39 L. J., Ch. 694, per Giffard, L. J. ; 
 Costa Rica, Bepublto of, v. Erlanger, 44 L. J., Ch. 281. 
 
 ' See Ex parte Shaw, Jac. 270. 
 
 * Hunter v. Leathley, 10 B, & C. 858 ; recognised by Parke, B,, in Ley v. 
 Barlow, 1 Ex. R. 801 ; Thompson v. Mosely, 5 C. & P. 501, per Ld. Lynd- 
 hurst ; Brassington v. Brassington, 1 Sim. & St. 455, per Leach, V.-C. ; Furlong 
 V. Howard, 2 Sch. & Lef. 115, per Ld. Redesdale ; In re Cameron's Coalbrook, 
 &c., Rail. Co., 25 Beav. 1 ; Hope v. LiddeU, 7 De Gex, M. & G. 331 ; 24 L. J., 
 Ch. 691 ; and 20 Beav, 438, S. C, overruling GrifHth v. Ricketts, 7 Hare, 303. 
 See, also, Lockett v. Gary, 3 New R, 405, per Romilly, M. R. ; and Ex parte 
 Paine & Layton, 4 Law Rep., Ch. Ap. 215 ; 38 L. J., Ch. 305, S, C. 
 
CHAP, v.] WHEN WITNESS BOUND TO PRODUCE DOCUMENT. 411 
 
 tion be himself the person against whom the claim of lien is made.^ 
 If the witness be a solicitor, though he will be permitted, he will 
 certainly not be forced,^ — except in some cases for the purpose of 
 identification,^ — ^to produce any instrument which he holds confiden- 
 tially for his client, and which his client has a right to keep back ;* 
 but, in this case, as has just been noticed, it by no means necessarily 
 follows that, in the event of the client himself not being summoned, 
 secondary eTidence will be admissible. 
 
 § 459. The rule exempting witnesses fi-om producing title-deeds § 429 
 has been applied to a will, under which the witness claimed as 
 devisee, though it was suggested that this will extended to per- 
 sonalty as well as to realty, abd, therefore, ought to have been 
 deposited in the Ecclesiastical Court, where the public might have 
 had access to it.^ Still, unless it appears that the title of the 
 person possessing the document will in some way be affected by its 
 production, the rule will not prevail ; ® and, therefore, in an action 
 of ejectment, where the title of the lessor of the plaintiff was dis- 
 puted, the solicitor of a gentleman, who had been in treaty with 
 him for the purchase of the property, but which treaty had gone off, 
 was allowed to produce on behalf of the defendant the abstract that 
 had been delivered to his client, as furnishing secondary evidence 
 of the contents of the deeds relating to the property, which the 
 lessor of the plaintiff, after notice, had refused to produce.'' 
 
 § 460. Again, the mere circumstance, that the production of the § 430 
 document may render the witness liable to a civil action, does not 
 
 1 Kemp v. King, 2 M. & Kob. 437, per Ld. Denman ; recogniaed in Hope v. 
 LiddeU, 24 L. J., Ch. 693, 694 ; 7 De Gex, M. & G. 338, S. 0. See, also. In 
 re Cameron's Coaltrook, &c., Rail. Co., 25 Beav. 4, per Eomilly, M. R. ; Vale 
 V. Oppert, 10 Law Eep., Ch. Ap. 340 ; 44 L. J., Ch. 579, S. C. 
 
 2 Hibberd v. Knight, 2 Ex. R. 11, explaining Marston v. Do-wnes, 6 C. & P. 
 381 ; 1 A. & E. 31, S. C. 
 
 3 Phelps V. Prew, 3 E. & B. 430. 
 
 " Harris v. Hill, 3 Stark. R. 140 ; Volant v. Soyer, 13 Com. B. 231 ; Doe v. 
 James, 2 M. & Rob. 47, per Ld. Denman ; Ditcher v. Kenrick, 1 C. & P. 161. 
 See Doe v. Langdon, 12 Q. B. 711. 
 
 * Doe V. James, 2 M. & Rob. 48, per Ld. Denman. 
 
 6 Lee V. Merest, 39 L. J., Ec. C. 53. ? Doe v. Langdon, 12 Q, B. 711, 
 
412 WHEN WITNESS NOT BOUND TO PRODUCE DOCUMENT. [PART II., 
 
 come within the protection of the rule. Thus, in an action of eject- 
 ment, in which the lessor of the plaintiff claimed as devisee in 
 remainder, and the defendant held under an inyalid lease made by 
 the late tenant for life, a witness, who was an executor and legatee 
 of the late tenant for life, was compelled to produce his testator's 
 rent-book, for the purpose of enabling the lessor of the plaintiff to 
 identify the lands in question with the lands originally devised, 
 though the witness, as executor, was bound to indemnify the de- 
 fendant from all loss he might sustain from an adverse verdict, 
 under a covenant contained in the lease granted by the late tenant 
 for life.^ Where a witness, who was steward of a borough, and 
 attorney for the lord, declined to produce certain old precepts, books 
 of presentment, and a case, relative to his office, on which the 
 opinion of counsel had been taken by a former steward, saying that 
 he held them as attorney for the lord, and that their production 
 would prejudice his client's interest, Lord Denman decided that he 
 was bound to produce the precepts and presentments, they being 
 public documents, but that the case and opinion might be with- 
 held.2 
 
 § 461.^ Fifthly, in consequence of the strong presumption, which § 431 
 arises from the undisturbed exercise of a public office, that the 
 appointment to it is valid, the law does not in general require that 
 the written appointments of public officers should be produced, but 
 it will be sufficient to show that such officers have acted in an official 
 capacity.* 
 
 § 462.5 A sixth relaxation of the rule demanding primary proof § 432 
 has been admitted, where the evidence required is the result of 
 voluminous facts, or of the inspection of many books and papers, the 
 examination of which could not conveniently take place in court.* 
 
 ' Doe V. Date, 3 Q. B. 609. 2 R. v. Woodley, 1 M. & Eob. 390, 
 
 2 Gr. Ev. § 92, in great part. 
 
 ■* See ante, § 171. See, also, Brewster v. Sewell, 3 B. & A. 302, per Hol- 
 ^"y*^' J- ' Gr. Ev. § 93, in great part. 
 
 1 Ph. Ev. 433. The rules of pleading have, for a similar reason, been made 
 to yield to public convenience in the administration of justice ; and a general 
 allegation is frequently allowed, " when the matters to be pleaded tend to 
 
CHAP, v.] WHEN WITNESS NOT BOUND TO PRODUCE DOCUMENT. 413 
 
 Thus, if bills of exchange have been drawn between particular 
 parties in one invariable mode, this may be proved by the testimony 
 of a witness conversant with their habits of business, and speaking 
 generally of the fact, without producing the bills ; though, if the 
 mode of dealing has not been uniform, the case does not fall within 
 this exception, but is governed by the rule requiring the production 
 of the writings.^ So, a witness who has inspected the accounts of 
 the parties, though he may not give evidence of their particular 
 contents, will be allowed to speak to the general balance without 
 producing the accounts.^ And, where the question turns upon the 
 solvency of a party at a particular time, the general result of an 
 examination of his books and securities may be stated in like 
 manner.^ This exception, however, will not enable a witness to 
 state the general contents of a number of letters received by him 
 from one of the parties in the cause, though such letters have since 
 been destroyed, if the object of the examination be to elicit from 
 the witness the impression which they produced on his mind, with 
 reference to the degree of friendship subsisting between the writer 
 and a third party.* The distinction between this and the preceding 
 cases is obvious ; since, in those, the fact in question was one, the 
 truth of which simply depended on the honesty of the witness, 
 whereas here, not only his honesty, but his taste and feelings were 
 involved ; and he might, from perusing the letters, conscientiously 
 draw a very different inference as to their legitimate construction 
 from that which would be drawn by an unbiassed jury. 
 
 § 463. Secondary evidence is admissible in the examination of a § 433 
 
 inflmteness and multiplicity, whereby the roUs shall be incumbered with the 
 length thereof." Mints v. Bethil, Cro. EUz. 749 ; Steph. PL 392—396. See 
 Rules of Sup. Ct. Ord. xix., r. 24 ; Rules of Sup. Ct. (Costs) Ord. vi. r. 18. The 
 courts admit the same exception in regard to parties to actions, where they are 
 numerous, on the Uke grounds of convenience. Story, Eq. PI. §§ 94, 95, 
 et seq. ; Rules of Sup. Ct. Ord. xvi., r. 9. 
 
 ' Spencer v. Billing, 3 Camp. 310, per Ld. BUenborough. 
 
 2 Roberts v. Doxon, Pea. R. 83, per Ld. Kenyon. But see Johnson v. 
 Kershaw, 1 De Gex & Sm. 260, where this course was not allowed by Knight 
 Bruce, V.-C. ^ Meyer v. Sefton, 2 Stark. R. 274, per Hohoyd, J. 
 
 ■• Topham v. M'Gregor, 1 0. & Kir. 320, per RoKe, B. See Taylor v. 
 Carpenter, 2 Woodb. & M. 5, 6. 
 
414 SECONDAEY EVIDENCE OF ORAL TESTIMONY. [PAET II. 
 
 witness on the voire dire, and in prelimina/ry inquiries of the same 
 nature. But as this rule, owing to the modern improvements in 
 the law of evidence on the subject of the competency of witnesses, 
 has now become practically inoperative, further reference to it here 
 is deemed unnecessary.-^ 
 
 § 464. Passing now to the consideration of the circumstances, § 434 
 under which secondary evidence of oral testimony will be received, 
 and bearing in mind the broad proposition before stated,^ that such 
 proof is only admissible where the production of primary evidence 
 is out of the party's power, it may be advanced as a general rule of 
 law, that where a witness has given his testimony under oath in a 
 judicial proceeding, in which the adverse litigant had the power to 
 cross-examine, the testimony so given, will, if the witness himself 
 cannot be called, be admitted in any subsequent suit between the 
 same parties, or those claiming under them, provided it relate to 
 the same subject, or substantially involve the same material 
 questions.^ 
 
 § 465. In discussing the effect and extent of this rule, which is § 434 
 now recognised by all courts of justice,* it seems almost needless to 
 observe, that, in order to render admissible secondary evidence of 
 the testimony of a witness, it must be proved that the witness was 
 duly sworn in some judicial proceeding, to the authority of which 
 the party, against whom his testimony is offered, was legally bound 
 
 ' See 1st Ed. of tHs work, § 342, and the following cases : — Butchers' Co. v. 
 Jones, 1 Esp. 160 ; Botham v. Swingler, id. 164 ; E. v. Gisbum, 15 East, 57 ; 
 Sewell V. Stubbs, 1 C. & P. 74 ; Carlisle v. Eady, id. 234 ; Quarterman v. Cox, 
 8 C. & P. 97 ; Butler v. Carver, 2 Stark. E. 433 ; Godmancbester v. Phillips, 
 6 N. & M. 211 ; Lunniss v. Eow, 10 A. & E. 606, 609 ; Corking v. Jairard, 
 1 Camp. 37. 
 
 2 Ante, § 428. 
 
 3 B. N. P. 239—243 ; May. of Doncaster v. Day, 3 Taunt. 262 ; Stratt v. 
 Bovingdon, 5 Esp. 56, per Ld. EUenborough ; E. v. JoUiffe, 4 T. E. 290, per 
 Ld. Kenyon ; Pyke v. Crouch, 1 Ld. Eay. 730, 5th Ees. ; Wright v. Doe d. 
 Tatham, 1 A. & E. 3 ; Glass v. Beach, 5 Vem. 172 ; Lightner v. Wike, 4 Serg. 
 & E. 203. 
 
 ■• See Lawrence v. Maule, 4 Drew. 472, 479, 480, per Kindersley, V.-C. The 
 rule has been extended to affidavits, Dunne v. English, 18 Law Eep., Eq[. 524, 
 and to Answers, Parker v. M'Kenna, 43 L. J., Ch. 802. 
 
CHAP. V.J SECONDARY EVIDENCE OF ORAL TESTIMONY. 415 
 
 to submit, and in which he might have exercised the right of cross- 
 examination ; for, if this were not the case, the preposterous con- 
 sequence would follow, that secondary evidence of testimony might 
 be received under circumstances that would exclude the testimony 
 itself. If, therefore, it should appear that depositions were taken, 
 either by parties not legally authorised to take them,'^ or without 
 the sanction of an oath or affirmation, or in the absence of the 
 party against whom they are offered,^ when, as in most criminal 
 investigations," his presence was requisite, they cannot be received.* 
 
 § 466. But although the party, against whom depositions are § 435 
 offered in evidence, must have had an opportunity of being present 
 at the examination, and of cross-examining the witness,^ — and 
 therefore, if a commission be executed without any notice, or with- 
 out a sufficient notice,^ being given to the opposite party, to enable 
 him, if he pleases, to put cross-interrogatories, the depositions will 
 be rejected,'' — yet, it is by no means requisite that he should exercise 
 that power ; and if notice has been given to him of the time and 
 place of the examination, and he neither intimates any wish to 
 cross-examine, nor applies to the court to enlarge the time for that 
 purpose, it will be presumed that he has acted advisedly, and the 
 depositions will be received.^ So, where a defendant, after joining 
 the plaintiff in obtaining a commission to examine witnesses upon 
 interrogatories, gave notice that he declined to proceed with the ex- 
 amination ; whereupon the plaintiff sent him word that he should 
 apply for a commission ex parte, which he accordingly did : the 
 court held that the examinations taken under this order were ad- 
 
 1 12 Via. Ab., Ev. A. b. 31 ; B. N. P. 241. 
 
 ^ The admissibility of depositions taken, before a coroner, in the absence of 
 the accused, will be discussed hereafter. See post, § 494. 
 
 3 See post, § 479. 
 
 * In R. V. Eriswell, 3 T. E. 721, Ld. Kenyon laid down that " the evidence 
 should be given under the sanction of an oath legally administered, and in a 
 judicial proceeding depending between the parties affected by it, or those who 
 stand in privity of estate or interest with them." 
 
 5 Att.-Gen. v. Davison, M'Clel. & Y. 160. 
 
 « Fitzgerald v. Fitzgerald, 3 Swab. & Trist. 397. 
 
 ' SteiakeUer v. Newton, 1 Scott, N. R. 148 ; 8 Dowl. 579 ; 9 0. & P. 313, 
 S. C. 8 Cazenove v. Vaughan, 1 M. & Sel. 4. 
 
416 TESTIMONY GIVEN IN FOKMEE JUDICIAL PROCEEDING. [PAET II. 
 
 missible in evidence, although the defendant had received no notice 
 of the time and place of taking them.-^ 
 
 § 467.^ The admissibility of this evidence seems to turn, rather § 436 
 on the right to cross-examine, than upon the precise identity, either 
 of the parties or of the points in issue, in the two proceedings. 
 Therefore, where a witness testified in a suit, wherein A. and several 
 others were plaintiffs and B. defendant, his testimony was, after his 
 death, held admissible i;a a subsequent action relating to the same 
 matter, brought by B. against A. alone.^ And although the two 
 trials be not between the same parties, yet, if the second trial is 
 between those who represent the former parties, and claim through 
 them by some title acquired subsequently to the first trial, the evi- 
 dence is admissible.* Again, if in a dispute respecting lands any 
 fact comes directly in issue, the testimony giv§n to that fact is ad- 
 missible to prove the same point in another action between the same 
 parties or their privies, though the last suit relate to other lands. ^ 
 So, in criminal cases, a deposition taken on a charge either of as- 
 sault and robbery, or of stabbing, or of doing grievous bodily harm, 
 can, after the death of the vdtness, be read upon a trial for murder, 
 where the two charges relate to the same transaction ; * and, indeed, 
 if this were not the law, the depositions of the deceased would, in 
 all cases of homicide, be most improperly excluded.'^ In one case,* 
 where a prisoner, who had been summarily convicted of an assault, 
 was, in consequence of the death of the party struck, subsequently 
 indicted for murder, the convicting magistrate was permitted to 
 state what the deceased had sworn in the prisoner's presence, the 
 examination not having been reduced into writing ; but the learned 
 
 1 M'Combie v. Anton, 6 M. & Gr. 27. 
 
 3 Gr. Ev. § 164, in paxt. ^ Wright v. Doe d. Tatham, 1 A. & E. 3. 
 
 ^ Com. Dig., Ev. A. 5, explained by Littledale, J., in Doe v. Derby, 1 A. & E. 
 790 ; Doe v. Powell, 3 C. & Kir. 323. 
 
 > Doe V. Foster, 1 A. & E. 791, n. b, per Alderson, B. ; B. N. P. 232. 
 
 « K. V. Smith, E. & R. 339 ; 2 Stark. R. 208, S. 0. ; R. v. Lee, 4 Post. & 
 Pin. 63, per Pollock, C. B. ; R. v. Dihnore, 6 Cox, 52, per Wigbtman, J. ; R. 
 V. Beeston, 24 L. J., M. C. 5 ; Pearce & D. 405, S. C. ; R. v. Williams, 12 
 Cox, 101. 
 
 ' 2 Stark. R. 212, note by the reporter. 
 
 8 R. V. Edmunds, 6 C. & P. 164, per Tindal, C. J. 
 
CHAP, v.] TESTIMONY GIVEN IN FOEMER JUDICIAL PROCEEDING. 417 
 
 judge appears to have received the evidence, not as proving the 
 facts stated, but as producing an answer from the prisoner. So, on 
 another indictment for murder, a deposition of the deceased taken 
 on a prior charge of larceny against the accused was read, but this 
 course was allowed, not as furnishing any evidence of the facts de- 
 posed, but simply as aifording a motive for -revenge on the part of 
 the prisoner.^ 
 
 § 468. If the point in issue, though very similar, was so far § 437 
 different in the two proceedings, that the witness, who was called 
 to prove or disprove the issue in the former, need not have been 
 fully cross-examined in regard to the matters in controversy in 
 the latter, his deposition, if tendered on the second trial, will be 
 excluded ; and on this ground it has been held — though, perhaps, 
 with questionable propriety — that a deposition taken on a charge 
 of assault could not afterwards be received on an indictment for 
 wounding.^ Again,^ it has been held in America, that where the 
 issue in one action had been upon a common or free fishery, and 
 that in another action was upon a several fisheiy, evidence of what 
 a witness, since deceased, had sworn upon the former trial, was 
 inadmissible.* 
 
 § 469. In statiag that this rule mainly depends on the right of § 438 
 cross-examination, care must be taken to guard against the error 
 of imagining that, whenever a party has had the right of cross- 
 examining a witness, he will be liable to have the statement of 
 that witness adduced against him in any subsequent action. This 
 will be so only in the event of his opponent being the same in hath 
 suits ;^ because, the right to use evidence, other than admissions, 
 being co-extensive with the liability to be bound thereby, the 
 adversary in the second suit has no power to offer evidence ia his 
 own favour, which, had it been tendered against him, would have 
 
 1 R. D. Buckley, 13 Cox, 293, per Lusli, J. 
 
 2 K. V. Ledbetter, 3 C. & Kir. 108 ; commented upon in R. v. Beeston 24 
 L. J.,M. C. 5. ^Gr. Ev. §164. 
 
 * Melvin v. Whiting, 7 Pick. 79. See, also, Jackson v. Winchester, 4 Dall. 
 206. 
 5 Morgan v. NichoU, 36 L. J., C. P. 86 ; 2 Law Rep., C. P. 117, S. C. 
 
 E £ 
 
418 SECONDARY EVIDENCE OF ORAL TESTIMONY. [PART II. 
 
 been clearly inadmissible.'- On the same ground of want of reci- 
 procity, it has been twice held, that, on an issue from Chancery 
 between A. and B., depositions taken under the old system, and 
 produced by B. in an equity suit of C. against B., could not be 
 read as part of A.'s evidence, though the question in both suits 
 was precisely the same.^ ■ As these depositions, however, had been 
 used by the party himself against whom they were offered in 
 evidence, they were clearly receivable as admissions, in spite of a 
 want of mutuality.^ The cases, therefore, in which they were 
 rejected can no longer be relied on as law, since they rest, in 
 fact, on a misapprehension of the old practice in Chancery with 
 respect to the non-publication of depositions prior to the hearing.* 
 The courts (jf common law erroneously imagined that a party, who, 
 prior to the 1st of November, 1852,^ used depositions in equity, 
 did not know beforehand what they were, and therefore was no 
 further bound by their contents, than he would have been by the 
 viva voce testimony of a witness whom he might have called at 
 Nisi Prius." 
 
 § 470. It has already been stated that secondary evidence of oral § 4.39 
 testimony cannot be received so long as the witness himself can be 
 called; but an attempt was, some years ago, made in equity to 
 engraft an exception on this wise rule, whenever depositions have 
 been taken against a party in one suit, who is also a party to a 
 second suit, wherein substantially the same questions arise. The 
 case in which this point was mooted was that of Blagrave v. 
 Blagrave.'' There, a person was tenant for life of certain real 
 
 I Doe V. Derby, 1 A. & E. 783, 786. 
 
 ^ Atkins V. HumpliTeys, 1 M. & Eob. 523, per Tindal, C. J. ; Rushwortli v. 
 Lady Pembroke, Hard. 472. 
 
 ' See Hutchinson v. Glover, 45 L. J., Q. B. 120 ; L. R., 1 Q. B. D. 
 138, S. C. 
 
 ^ Eichards v. Morgan, 33 L. J., Q. B. 114 ; 4 B. & S. 641, S. C, per Cock- 
 burn, C. J., & Comj)ton, J., diss. Blackburn, J. 
 
 " Wben 15 & 16 V., c. 86, caine into operation. See as to the new practice, 
 §§ 28 — 41 of that Act. For the new practice in Ireland, see 30 & 31 V., c. 44, 
 § 87, et seq., Ir. 
 
 « Brickell v. Hulse, 7 A. & E. 456—458, per Ld. Dennian, and Coleridge, J. 
 
 ' 1 De Gex & Sm. 252, 
 
CHAP, v.] SECOND. EV. INADMIS. IP WITNESS CAN BE CALLED. 419 
 
 and personal estate. Two suits were instituted against him in 
 respect of alleged mismanagement of the property, the one being 
 commenced by the tenant for life in remainder, and referring 
 only to the real estate, the other being commenced by the first 
 tenant in tail, and embracing both the real and the personal estate. 
 The objects sought in each suit, though not entirely identical, 
 were to a great extent the same. Under these circumstances it 
 was proposed, on the authority of Nevil i\ Johnson,^ Barton r. 
 Palmes,^ Byrne v. Frere,^ and particularly, the City of London v. 
 Perkins,* to read as against the defendant in the second suit the 
 depositions that had been taken against him in the first, without 
 any proof that the witnesses were dead, or otherwise incapable of 
 being examined. Vice- Chancellor Knight Bruce, however, very 
 properly held that this course could not be pursued ; and his de- 
 cision would not have deserved any notice, had it not been that 
 his Honour, while pronouncing his judgment, appeared to recog- 
 nise the case of the City of London r. Perkins, as an authority 
 to a certain extent for the doctrine propounded by the plaintiff's 
 counsel. Now, it is submitted that this is an entire mistake, 
 though naturally occasioned by the imperfect manner in which the 
 case has been reported. 
 
 § 471. The real facts were these. The City of London, having § 439 
 filed a bill against Messrs. Perkins to recover certain tonnage dues 
 under an alleged custom, claimed to read, as evidence of reputation 
 with respect to the custom, certain depositions which had been 
 taken by them in two former suits for the recovery of the same 
 species of tonnage against two other defendants. The Court of 
 Exchequer rejected this proof on the ground that the deaths of the 
 witnesses were not shown by " the depositions taken in the cause ; " 
 and they refused to allow the plaintiffs to prove by viva voce testi- 
 mony or by affidavit that the witnesses were in fact dead. The 
 plaintiffs appealed, and prayed, among other things, that the order 
 of the court below should be reversed, and that they might be at 
 liberty to read the depositions ; whereupon, the House of Lords, 
 
 1 2 Vern. 247. 2 pj-ec. in Ch. 233. 
 
 s 2 Moll. 157. ■* 3 Br. P. 0. 602. 
 
 E E 2 
 
420 WHEN A WITNESS IS INCAPABLE OF BEING CALLED. [pART II. 
 
 without granting or alluding to the last paragraph of the prayer, 
 gave judgment that the order be reYersed.^ It is obvious, therefore, 
 that this case does not decide that depositions can in any event be 
 read in evidence, where the witnesses are themselves capable of 
 being called. Neither can such a doctrine be supported by any of 
 the three other cases cited by the plaintiff's counsel in Blagrave r. 
 Blagrave.^ In Byrne v. Frere,^ it is clear that the vntnesses were 
 dead, and there is nothing whatever to show that they were alive, 
 either in Nevil v. Johnson,* or in Barton v. Palmes.^ These last 
 two cases were decided at the commencement of the last century by 
 a judge of no very exalted reputation, Sir Nathan Wright, and are, 
 moreover, so wretchedly reported as to be utterly valueless as 
 expositions of the law. 
 
 § 472. Eeturning now to the rule which rejects secondary § 440 
 evidence of oral testimony so long as the witness can himself be 
 called, it should be observed, that the common law regards a 
 witness as incapable of being called, — 1, When he is dead ; 2, 
 When he is out of the jurisdiction of the court, or possibly, 
 when he cannot be found after diligent inquiry ; 3, When he is 
 either insane, or permanently sick; -and 4, When he is kept out 
 of the way by the contrivance of the opposite party. In noticing 
 the authorities which support these propositions, no case need be 
 cited to establish what is admitted on all hands, that if the witness 
 be proved to be dead, secondary evidence of his statement on 
 oath in a former trial between the same parties will be received as 
 of course.^ The court, however, — unless some account of the death 
 of a witness be given, or at least some evidence be furnished show- 
 ing that proper inquiries have been made, and that no tidings can 
 be heard of him, — will not presume his death, so as to admit his 
 depositions, though they were taken as much as fifty years before 
 the trial.'' 
 
 1 See and compare, 3 Br. P. C. 602, and 24 Lords' J. 448, under date 28tli 
 Jan. 1734. See, also, Carrington v. Cornook, 2 Sim. 567. 
 
 2 1 De Gex & Sm. 252. = 2 Moll. 157. ■• 2 Vem. 447. 
 
 6 Prec. in Oh. 233. 
 
 « Pyke V. Crouch, 1 Ld. Ray. 730, 5th Res. 
 
 7 Benson v. Olive, 2 Str. 920. See ante, § 199. 
 
CHAP, v.] WHEN WITNESS OUT OF JUEISDICTION. 421 
 
 § 473. The ground for admitting secondary evidence in civil § 441 
 proceedings seems equally clear, where it is proved that the 
 witness is actually residing in some place beyond the jurisdiction 
 of the court ;^ but questions have occasionally arisen respecting 
 the amount and nature of the proof required to establish this 
 fact. Thus, where a naval captain had been examined on interro- 
 gatories by consent, on account of his expected absence, Sir James 
 Mansfield held that it was not absolutely necessary that he should 
 be on his voyage, when the trial came on. If the ship had sailed, 
 though it had put back, or if the witness had gone on board, and 
 was ready to sail, though prevented by contrary winds, that would 
 be sufficient.^ The same doctrine has prevailed in another case, 
 where the signature of an attesting witness was allowed to be 
 proved, it appearing that he had sailed for Spain, had been driven 
 ' back by stress of weather, and, six days before the trial, was at 
 Falmouth, expecting to sail again immediately.^ In a third case, 
 where it was sworn that the witness was a seafaring man, and 
 some six months before the trial had belonged to a ship lying in 
 the Thames, Lord Ellenborough, in rejecting the evidence as too 
 vague, was disposed to admit the depositions, if it could be further 
 shown that any efforts had been recently made to find him.* This 
 case suggests the propriety of noticing an old decision of the 
 time of James the First,^ in which it was expressly laid down 
 that, if a party cannot find a witness, then he is, as it were, dead 
 to him ; and his depositions in a cause betwixt the same parties 
 may be read, provided the party make oath that he endeavoured 
 to find him, but could neither see him nor hear of him. In no 
 modern case has precisely the same point been ruled, but as it has 
 frequently been held that proof of inability to find an attesting 
 witness will let in evidence of his handwriting," these analogous 
 
 1 Fry V. Wood, 1 Atk. 445. 
 
 2 Fonsick v. Agar, 6 Esp. 92. But see Camitliers v. Graham, C. & Marsli. 5 
 cited post, § 516. 
 
 3 Ward V. Wells, 1 Taunt. 461. See Varioas v. French, 2 C. & Kir. 1008. 
 ■• Falconer v. Hanson, 1 Camp. 171. « Godb. a26. 
 
 ^ Kay V. Brookman, 3 C. & P. 555 ; Cnnliffe v. Sefton, 2 East, 183 ; Crosby 
 V. Percy, 1 Taunt. 364 ; Ld. Falmouth v. Eoherts, 9 M. & W. 469 ; Parker v. 
 Hoskins, 2 Taunt. 223 ; Burt v. Walker, 4 B. & A. 697 ; Spooner v. Payne, 
 4 Com. B. 328. 
 
422 WHEN WITN. CANNOT BE FOUND — ANS. TO INQUIEIES. [PAKT II. 
 
 decisions would seem in some degree to support the correctness oi 
 the old authority, at least so far as relates to civil causes. 
 
 § 474. In criminal proceedings a similar latitude is not alloAV- § "1^2 
 able at common law, and the deposition of a witness, whether 
 taken before a magistrate or a coroner, will not be rendered 
 admissible, on mere proof that the witness himself cannot be 
 found after dihgent search.^ Neither will it be received, though 
 satisfactory proof be given that the witness was not absent from 
 any intention to defeat justice, but that, being a foreigner, he had, 
 since the prisoner was committed for trial, returned to his own 
 country, and was at the time of the trial resident abroad.^ This 
 kind of evidence has also been rejected in America, both where 
 the witness could not be found within the jurisdiction, but was 
 reported to have gone to an adjoining State,^ and where he was " 
 proved to have left the State, after being summoned to attend at 
 the trial.* 
 
 § 475. How far answers to inquiries respecting the witness are § 443 
 admissible to prove that he cannot be found, is not very clearly 
 defined by the decisions. That such answers will be rejected 
 as hearsay, if tendered in proof of the fact that the witness is 
 abroad, is beyond all doubt ;^ but where the question is simply 
 whether a diligent and unsuccessful search has been made for the 
 witness, it would seem, both on principle and authority, that 
 the answers should be received, as forming a promment part of 
 the very point to be ascertained." In order to show that inquiries 
 have been duly made at the house of the witness, his declarations 
 
 1 Ld. Morley's case, Kel. 55, 6th Eea. ; 6 How. St. Tr. 771, S. C. ; K. v. 
 Scaife, 17 Q. B. 242—244 ; 2 Den. 281, S. C. 
 
 2 K. ■;;. Austen, Pearce & D. 612 ; 7 Cox, 55, S. C. ; E. v. Hagan, 8 C. & P. 
 167, per Coltman, J. These cases overrule the law as laid down in B. N. P. 
 242. 
 
 " Wilbur V. Selden, 6 Cowen, 162. 
 
 * Finn's case, 5 Rand. 701. 
 
 ' Robinson v. Marlds, 2 M. & Rob. 375, per Ld. Abinger ; Doe v. Powell, 
 7 C. & P. 617, per id. ; post, § 517. 
 
 5 "Wyatt V. Bateman, 7 C. & P. 586, per Coleridge, J. ; Burt v. Walker, 4 
 B. & A. 697 ; Austin r. Rumsey, 2 0. & Kir. 736, per Erie, J. 
 
CHAP, v.] WHEN WITNESS INSANE OK SICK. 
 
 423 
 
 as to where he lived cannot be reoeiTed;^ neither will his state- 
 ment in the deposition itself that he is about to go abroad, render 
 it unnecessary to prove that he has put his purpose in execution.^ 
 
 § 476. If the witness be proved at the trial to be insane, his § 444 
 deposition will be admissible,^ in like manner as if he were dead ; * 
 and the same rule is stated to prevail, though the insanity be only 
 of a temporary character.^ This, however, appears to be carrying 
 the doctrine beyond its legitimate extent ; for since the casual ill- 
 ness of a witness will not, — as shown in the next section, — warrant 
 the reading of his former testimony, at least in a civil suit, but 
 will only furnish good ground for moving to postpone the trial, the 
 same rule should surely prevail in the event of a witness being 
 afflicted with temporaiy madness. No sensible distinction can be 
 drawn between the two cases. Where depositions are tendered 
 on the ground of the witness being insane, it may sometimes 
 be advisable to show that his intellects were sound at the time 
 of his previous examination ; and this course may even be neces- 
 sary, if such examination were had but a short time before the 
 trial.s 
 
 § 477. It is somewhat difficult to discover from the authorities § 44j 
 what degree of illness must be proved in order to let in depositions.'' 
 In an old case, where a witness on his journey to the place of trial 
 was taken so ill as to be unable to proceed, his deposition was 
 allowed to be read ; ^ but too much weight must not be given to this 
 decision, since, if the course there adopted were ordinarily allowed, 
 there would be very sudden indispositions and recoveries." The 
 rule laid down by Lord EUenborough, that where a witness is taken 
 
 • Doe V. Powell, 7 C. & P. 617. 
 
 2 Proctor V. Lainson, 7 C. & P. 631, per Ld. Abinger. 
 
 3 As to depositions taken by committing justices, see post, § 479. 
 
 * R. V. Eriswell, 3 T. R. 720, 721, per Ashhurst, J., and Ld. Kenyon. 
 
 5 R. V. Marshall, C. & Marsh. 147, per Ludlow, S., after consulting Colt- 
 man, J. 
 
 8 R. V. Wall, per Park, J., cited 2 Russ. C. & M. 890. 
 
 7 See R. V. Bull, 12 Cox, 31. » Luttrell v. Reynell, 1 Mod. 284. 
 
 5 Harrison v. Blades, 3 Camp. 458, per Ld. EUenborough ; Jones v. Brewer 
 4 Taunt. 47, per Heath, J. 
 
424 POSTPONEMENT OP TRIAL — WITN. KEPT OUT OF THE WAY. [PAET II. 
 
 ill, the party requiring his testimony should move to put off the 
 trial, is certainly less open to objection and ahuse.^ In the cri- 
 minal courts, this practice has long prevailed, and it has there 
 been expressly decided, that the depositions of a woman, who was 
 so near her confinement as to be unable to attend a trial, could not 
 be received.^ If, however, from the nature of the illness or other 
 infirmity, no reasonable hope remains that the witness will be able 
 to appear in court on any future occasion, his deposition is cer- 
 tainly admissible in criminal,^ as it is in civil,* proceedings. Where, 
 upon an issue being directed out of the old Court of Chancery, it 
 appeared that a witness, who had been examined in the cause as to 
 the handwriting of certain documents, had since become blind, the 
 court made an order that his depositions should be read at the trial.^ 
 
 § 478. The proposition that, if a witness be kept out of the ivay § 446 
 by the adversary, his former statements on oath will be admissible, 
 rests, partly, on the authority of several decisions both in the 
 civil and criminal courts ; " partly, on the analogies furnished by 
 one or two statutes ; '' but, chiefly, on the broad principle of jus- 
 tice, which will not permit a party to take advantage of his own 
 wrong. In a case were three prisoners were indicted for felony, 
 and a witness for the prosecution was proved to be absent through 
 the procurement of one of them, the court held that his deposi- 
 
 ' Harrison v. Blades, 3 Camp. 458. 
 
 2 R. V. Savage, 5 C. & P. 143, per Patteson, J. See post, § 481. 
 
 •* 11 & 12 v., c. 42, § 17, cited post, § 479 ; R. v. Hogg, 6 C. & P. 176, per 
 Gitmey, B. ; R. v. Edmunds, id. 165, per Tindal, C. J. ; R. v. Wilsliaw, C. & 
 ilarsli. 145 ; R. v. Cookburn, Dear. & Bell, 203 ; 7 Cox, 265, S. C, cited post, 
 § 480, n. 2. 
 
 * Jones V. Jones, 1 Cox, Ch. R. 184 ; Andi-ews v. Pahuer, 1 Ves. & B. 22 ; 
 Fry V. Wood, 1 Atk. 445 ; Corliett v. Corbett, id. 335, 336. The case of Doe 
 V. Evans, 3 C. & P. 219, where Vanghan, J., is said to have rejected the 
 depositions of a witness, who was bed-ridden and nearly a century old, and 
 quite unable to attend the trial, is obviously not law. 
 
 * Lynn v. Robertson, 2 Coop. 217. 
 
 " Ld. Morley's case, Kel. 55, 5th Res. ; 6 How. St. Tr. 770, 771, S. C. ; R. v. 
 Harrison, 12 How. St. Tr. 851, 852, 868, per Ld. Holt ; Green v. Gatewick, B. 
 N. P. 243 ; R. v. Scaife, 2 Den. 281 ; 17 Q. B. 238, S. C. ; R. v. Guttridge, 9 
 C. & P. 473. See, also, Egan v. Larkin, 1 Arm. M. & 0. 403, per Brady, C. B. 
 
 7 See 50 G. 3, c. 102, § 5, Ir. ; 56 G. 3, c. 87, § 3, Ir., noticed post, § 497. 
 
CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 425 
 
 tion might be read in evidence as against the man who had kept 
 him out of the way, but that it could not be received against the 
 other two men.^ 
 
 § 479. Besides those cases, in which the admissibility of § 447 
 secondary proof of oral testimony is found to rest upon the ordinary 
 principles of the common law, the Legislature in a few instances 
 has expressly provided, that certain depositions should, under par- 
 ticular circumstances, be received in evidence.^ The most important 
 Act on this subject is that of 11 & 12 V., c. 42, which regulates 
 the mode of taking depositions before committing magistrates, and 
 their subsequent admissibility in evidence. § 17 of this statute 
 enacts, " That in all cases, where any person shall appear or be 
 brought before any justice or justices of the peace charged with 
 any indictable offence, whether committed in England or Wales, or 
 upon the high sea, or on land beyond the sea, or whether such 
 person appear voluntarily upon summons, or have been appre- 
 hended, with or without warrant, or he in custody for the same or 
 any other offence, such justice or justices, before he or they shall 
 commit such accused person to prison for trial, or before he or they 
 shall admit him to bail, shall, in the presence of such accused 
 person, who shall be at liberty to put questions to any witness pro- 
 duced against him, take the statement^ on oath or affirmation of 
 those who shall know the facts and circumstances of the case, and 
 
 1 R. V. Scaife, 2 Den. 281 ; 17 Q. B. 238 ; 5 Cox, 243, S. C. 
 
 2 See 6 & 7 V., c. 34, § 4. 
 
 '' The form given in Sched. M to the Act is as follows : — 
 
 Depositions of Witnesses. 
 " To Wit,— The examination of C. D. of [Farmer'] and E. F. of 
 
 [Labourer], taken on [oath] this day of in the year of our Lord 
 
 at in the [county] aforesaid, hefore the undersigned, [one] of 
 
 Her Majesty's Justices of the Peace for the said [county], in the presence 
 and hearing of A. B. ; who is charged this day before [me], for that he the 
 said A. B. on at [&o., describing the offence as in a warrant of 
 
 commitment]. This deponent C. D. on his [oath] saith as follows [&c., stating 
 the deposition of the vntness as nearly as possible in the words he uses. When his 
 deposition is complete, let him sign it.] 
 And this deponent E. F. upon his oath saith as follows [&o.]. 
 
 " The above depositions of C. D. and E. F. were taken and [sivom] before 
 me at on the day and year first above mentioned. « T. g." 
 
^ " DEPOSITIONS TAIfEN BEFORE JUSTICES. [PART II. 
 
 shall put the same into writing, and such depositions shall be read 
 over to and signed respectively by the witnesses who shall have been 
 SO examined, and shall be signed also by the justice or justices 
 taking the same ; and the justice or justices, before whom any such 
 witness shall appear to be examined as aforesaid, shall, before such 
 witness is examined, administer to such witness the usual oath or 
 affirmation, which such justice or justices shall have full power and 
 authority to do ; and if, upon the trial of the person so accused as 
 first aforesaid, it shall be proved, by the oath or affirmation of any 
 credible witness, that any person, whose deposition shall have been 
 taken as aforesaid, is dead, or so ill as not to be able to travel, and 
 if also it be proved that such deposition was taken in the presence 
 of the person so accused, and that he or his counsel or attorney had 
 a full opportunity^ of cross-examining the witness, then, if such 
 deposition purport to be signed by the justice by or before whom 
 the same purports to have been taken, it shall be lawful to read 
 such deposition as evidence in such prosecution, without further 
 proof thereof, unless it shall be proved that such deposition was 
 not in fact signed by the justice purporting to sign the same." 
 
 § 480. It would be difficult to frame a clause open to more § 448 
 objections than the one just cited. First, the Act states, that if 
 it be proved, among other things, that the witness " is dead, or 
 so ill as not to be able to travel," it shall be lawful to read his 
 deposition as evidence in the prosecution. Now, any one, bearing 
 in mind the maxim, " expressio unius est exclusio alterius," would 
 reasonably interpret this to mean that, unless one or other of 
 these facts be established, the deposition shall in all cases be 
 excluded ; but, as such an interpretation would lead to very 
 absurd results, the jiidges have put another construction on the 
 words, and have held that they do not annul the wise common- 
 law rule,^ that if a witness be fraudulently or forcibly kept out of 
 the way by the prisoner himself, his deposition shall be received.^ 
 
 1 Thi(3 fact may be negatived by proof that the accused was insane when the 
 deposition was taken, or was otlierwise incapacitated by illness from cross- 
 examining the deponent. K. v. Peacock, 12 Cox, 21, per Brett & Mellor, Ja. 
 
 2 Ante, § 478. 
 
 ■* B. V. Scaife, 2 Den. 281 ; 17 Q. B. 238 ; 5 Cox, 243, S. C. 
 
GHAP. v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 427 
 
 In thus deciding, the judges have certainly got rid of one diffi- 
 culty ; but since, in so doing, they have relaxed the principles of 
 judicial interpretation, the law, regarded as a science, has lost 
 ahnost as much as it has gained. Whether the courts -will go one 
 step further, and admit the deposition of a witness, who, although 
 not too ill to travel,^ may be proved to be permanently insane," 
 remains to be seen ; but such a decision seems naturally to follow 
 from the former ruling. ' 
 
 § 481. Next, do the words just cited mean, that in all cases § 449 
 where a witness is too ill to travel at the time of the trial, his 
 deposition, if proved to have been properly taken, must be ad- 
 mitted in evidence ; or, in other words, do they set at nought the 
 salutary practice of obliging the prosecutor to apply for a post- 
 ponement of the trial,^ where a material witness is only suffering 
 under a temporary indisposition ? Such appears to be the only 
 construction that can fairly be put upon the Act; and, conse- 
 quently, the court has admitted the deposition of a woman who, 
 when the trial took place, had just been confined,* though it was 
 urged with much force that in a very few weeks the woman would 
 almost certainly be able to testify viva voce in court. ^ What 
 
 ' WHen a witness is able to travel without risk, her old age and nervousness 
 and inability to stand a cross-examination will not justify tlie reading of her 
 deposition. R. v. Farrell, 43 L. J., M. C. 94 ; 12 Cox, 605 ; & 2 Law Eep., 
 C. C. 116, S. C. ; R. V. Thompson, 13 Cox, 181, per Lush, J. 
 
 2 Ante, § 476. In R. v. Cockburn, Dear. & Bell, 203 ; 7 Cox, 265, S. C, 
 the deposition of a witness was received, on his doctor proving, that, though he 
 might have been brought to the court without danger to life, he was sufferiu"- 
 from paralysis, which disabled him. altogether from giving evidence. See, also, 
 R. V. Wilson, 8 Cox, 453. 
 
 3 Ante, i 4:17, _ 
 
 ■* So, in R. V. Stephenson, 81 L. J., M. C. 147 ; L, & Cave, 165 ; and 9 Cox, 
 156, S. C, the court admitted the deposition of a woman, who was daily 
 expecting her confinement, and was "otherwise poorly." See, too, R. ■;;. 
 Croucher, 3 Fost. & Fin. 285 ; R. v. Wilson, 12 Cox, 622. 
 
 * R. V. Harvey, 4 Cox, 441. But see E. v. Omant, 6 Cox, 466, per Crompton, 
 J. ; R. V. Wilton, 1 Fost. & Fin. 309, per WiUes, J. ; R. v. Walker, id. 534, 
 per id. ; R. v. Tait, 2 Fost. & Fin. 553, per Crompton, J., from which cases it 
 appears that the judge, notwithstanding the Act, has a discretionary power of 
 postponing the trial, instead of allowing the deposition to be read. 
 
428 DEPOSITIONS TAKEN BY JUSTICES, HOW PROVED. [PART II. 
 
 renders this state of tlie law the more remarkable is, that if, instead 
 of the woman's deposition having been offered in evidence in a 
 criminal case, her examination before a commissioner had been 
 tendered in a civil suit, — at least before the Eules of the Supreme 
 Court came into operation,' — it could not have been received ; for, 
 as will presently appear,^ an examination taken under the Act of 
 1 W. 4, c. 22, could not be read in evidence on the ground of the 
 sickness or other infirmity of the witness, unless it were shown that 
 such sickness or infirmity was of a permanent character. 
 
 § 482. Again, what amount of proof will authorise the reading § 450 
 of the deposition ? Will it suffice simply to show that the witness 
 is dead, or too ill to travel ; that he was examined in the presence 
 of the accused, who had a full opportunity of cross-examming 
 him ; and that the document purports to be signed, either by the 
 committing justice, or, at least, by the justice " by or before whom 
 the same purports to have been taken ?"^ or must the prosecutor 
 further prove all or any of the following facts, viz., that the depo- 
 sition was taken before the accused was committed or bailed ; that 
 it was taken on oath or affirmation ; that it was read over to the 
 witness, and that it was signed by him ? The clause enumerates 
 all these circumstances as apparently necessary ingredients in a 
 valid deposition ; and then, in the paragraph relative to the proof, 
 speaks, first, of "the person, whose deposition shall hare been 
 taken as aforesaid," being dead, &c., and next, of " such* depo- 
 sition " purporting to be signed by the justice. If it be contended, 
 that the court will infer from the magistrate's signature that the 
 statutory provisions have all been complied with, the form of the 
 caption of the deposition, as given in the schedule to the Act,^ 
 furnishes a probable answer to such an argument: for by that 
 
 1 See post, § 516. -' Post, § 515. 
 
 » In E. V. Vidil, 9 Cox, 4, Blackbm-n, J., lield that the deposition of a sick 
 witness was admissihle, though it had been taken before two magistrates wlio 
 acted only on that occasion, and thongh the prisoner had been charged before 
 and committed by another magistrate. Sed qu. 
 
 * As to the meaning of the word " such,'' see per Ld. Brougham in Casement 
 V. Fulton, 5 Moo. P. C. R. 140. 
 
 * Ante, § 479, n. 3. 
 
CHAP. V.J DEPOSITIONS TAKEN BY JUSTICES, HOW DISPROVED. 429 
 
 form the justice merely states that the witness was examined on 
 oath, and in the presence of the accused, and it is wholly silent 
 as to whether or not the examination was read over to the witness, 
 or was signed by him. Now, as the magistrate's signature is 
 clearly insufficient to prove that the accused was present during 
 the examination of the witness, though that fact is positively stated 
 in the caption so attested, on what ground can it be urged that 
 the same signature is sufficient to prove the taking of the oath, 
 which is a fact stated in the caption in a precisely similar manner ? 
 At all events, how can the facts that the deposition was read over 
 to the witness, and that it was afterwards signed by him, be proved 
 by the magistrate's signature, when neither of these circumstances 
 is so much as alluded to in any part of the document ? In short, 
 if the signature of the magistrate does not authenticate the facts 
 which are recited in the caption, how can it authenticate facts 
 which are not there recited at all ? 
 
 § 483. A further difficulty arises in determining what amount § 451 
 of proof on the part of the prisoner will render a deposition 
 inadmissible ? If he can show that the signature, purporting to 
 be that of the justice, is a forgery, of course the deposition cannot 
 be received. But how will the case stand, if, being unable to 
 prove that fact, he can still show that the deposition was not taken 
 upon oath, or that it was not read over to the witness, or that the 
 signature purporting to be that of the witness was not made by 
 him, or that the witness had refused or omitted to sign the state- 
 ment ? Will he be allowed to adduce such evidence, and will 
 such evidence, if adduced, avail him? These are, all of them, 
 points which cannot fail to raise serious difBculties in interpreting 
 the Act, and which might easily have been avoided had the drafts- 
 man possessed ordinary knowledge of the subject, or exercised 
 ordinary care. 
 
 § 484. Passing now from these speculative questions, it will § 452 
 be convenient to consider briefly the proper course of taking 
 depositions under the Act. And here it seems clearly to have 
 been intended by the Legislature, that the accused should be 
 charged, in the first instance, with some indictable offence ; that 
 
430 • MODE OF TAKING DEPOSITIONS BY JUSTICES. [PART II. 
 
 the statement of each witness should then be made under the 
 sanction of an oath or affirmation, administered by the magistrate 
 before whom the charge is preferred ; ^ that such oath or affirma- 
 tion should be administered in the presence of the accused ; that 
 the statement should be made entirely in his presence/ and that 
 he should have full opportunity for cross-examination ; that the 
 whole of the statement elicited either by examination or by cross- 
 examination, and not merely so much of the evidence as the 
 justice might consider material,^ should be reduced to writing in 
 the first person, and in the very words of the witness ; * that the 
 deposition, when completed, should be read over to the witness, 
 and be signed by him, as a token of his assenting to its correct- 
 ness ; ^ that the whole body of the depositions, if not each depo- 
 sition,^ should also be signed by the justice ; and that they should 
 be transmitted by him, — together with the written information, the 
 statement of the accused, and the recognizance of bail, if any 
 such documents should exist, — to the proper officer of the court in 
 which the trial is to be had, before or at the opening of such 
 court.^ 
 
 § 485. In directing the magistrate to take down the statements § 453 
 of the witnesses as nearly as possible in their own words, and not 
 merely " so much thereof as shall be material," the Legislature, 
 of course, did not intend that the depositions should be loaded 
 with evei-y idle word let fall by the persons under examination, 
 though obviously having no reference to the charge against the 
 accused ; but it certainly meant to fetter the discretion of the 
 justices, who, under the old law, were apt to reject as immaterial 
 much valuable information. Eegarded in this light, the change 
 is salutary ; for not only does it frequently happen, that facts, 
 
 1 See R. 1). Vidil, 9 Cox, 4, cited ante, § 482, n. 3. 
 
 ^ Tlie same doctrine prevailed at common law. See E. v. Errington, 2 Lew. 
 C. C. 142 ; R. V. Woodcock, 1 Lea. 502 ; R. v. Dingier, 2 Lea. 561 ; R. v. 
 Paine, 1 Salk. 281 ; 5 Mod. 163, S. 0., cited with approbation by Ld. Kenyon 
 in R. V. Eriswell, 3 T. R. 723. 
 
 » This was the old law : see 7 G. 4, c. 64, §§ 2 & 3. 
 
 " See Sch. M. cited ante, § 479, n. 3. 
 
 ^ See R. V. Plumnier, 1 C. & Kir. 604 ; R. v. Elemming, 2 Lea. 854. 
 
 « See § 487, post. 7 See §§ 17 & 20 of 11 & 12 V., c. 42. 
 
CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 431 
 
 which on a preliminary inquiry appear to be of trifling import- 
 ance, turn out in the sequel to be extremely relevant ; but, where 
 all the evidence is not given, the court, the prosecutor, and the 
 prisoner, are alike kept in the dark, and much time may be wasted 
 in endeavours to throw discredit upon the testimony of witnesses, 
 by showing that they have made statements at the trial which 
 are not to be found in the depositions returned.-^ If a person 
 of weak intellect, or a child, be examined before the justice, 
 it is also desirable that the questions and answers touching his 
 capacity to take an oath, should appear on the face of the 
 deposition.^ 
 
 § 486. Whether a deposition originally written down in the § 454 
 absence of the prisoner could be received in evidence under the 
 Act, on proof being given that it had afterwards been read over 
 in his presence to the witness, who had then assented on oath to 
 its contents, is a very problematical question ; for although depo- 
 sitions, thus laxly taken, have more than once been admitted 
 under the old law,^ this course of proceeding has frequently been 
 condemned by the judges as highly unjust;* and, indeed, it is 
 obvious that it affords no fair opportunity to the accused of cross- 
 examining the deponent. On one occasion, Mr. Baron Piatt 
 rejected a deposition expressly upon this ground ; and, at the 
 same time, took occasion to remark, that a prisoner could not have 
 " a full opportunity of cross-examining the witness," within the 
 meaning of the statute, unless the deposition was taken down in 
 his presence, and in the presence of the magistrate, and unless he 
 was warned by the magistrate at the close of the examination that 
 
 1 K. v. Potter, 7 C. & P. 650, n. ; E. v. Thomas, id. 817 ; R. v. Grady, id. 
 650 ; R. V. Smith, 2 C. & Kir. 207 ; R. i). WeUer, id. 223. 
 
 2 R. V. Painter, 2 0. & Kii-. 319, per Wilde, C. J. 
 
 3 R. V. Smith, R. & R. 339 ; 2 Stark. R. 208 ; Holt, N. P. R. 614, S. C. ; 
 R. V. Calvert, 2 Cox, 491 ; R. v. Walsh, 5 id. 115. See R. v. Christopher, 4 
 Cox, 76 ; 2 C. Kir. 994 ; 1 Den. 536, S. C. 
 
 1 R. 0. Johnson, 2 C. & Kir. 394, per Piatt, B. ; R. v. Forbes, Holt, N. P. E. 
 599, n., per Chambre, J. ; R. v. Kiddy, 4 D. & R. 734 ; R. v. Calvert, 2 Cox, 
 492, per Rolfe, B. ; R. v. Walsh, 5 id. 115 ; R. v. Beeston, 24 L. J., M. C. 6, 
 per Alderson, B. ; Pearce & D. 408, S. C. See, also, R. v. Crowther, 1 T. R. 125. 
 
432 CAPTION OF DEPOSITIONS — SIGNATURES. [PAKT II. 
 
 he might put any questions he liked to the witness, with reference 
 to the statement which had been made.^ It is also extremely 
 doubtful whether a deposition can be read in a case, where the 
 prisoner has abstained from asking any questions in consequence 
 of the witness being too ill to bear further examination.^ 
 
 § 487. With respect to the mode of entitling the depositions, § 455 
 one caption at the head of the whole body of depositions will 
 suffice,^ if, indeed, it be necessary, in strict law,* to have a caption 
 at all ; ^ and no objection can be sustained on the ground that the 
 title does not state with sufficient precision the charge against the 
 accused.^ Although each witness must sign his own deposition, it 
 will be sufficient for the magistrate to attach his signature, once 
 for all, at the end of the whole body of depositions, provided that 
 all of them be written either on one sheet of paper,'^ or on different 
 sheets connected with each other.^ Still, this course of proceed- 
 ing should not be indiscriminately adopted ; for, if the depositions 
 be copied on separate sheets, and no proof be given of their 
 having been pinned, or otherwise fastened together, at or before 
 the time when the last was signed," those bearing no signWure 
 will be rejected.^" It seems, too, that the signature of the justice 
 must appear on the face of the deposition to be that of the ma- 
 gistrate " by, or before, whom the same purports to have been 
 taken," and that no parol evidence will be received to supply any 
 
 1 E. V. Day, 6 Cox, 55. See E. v. Bates, 2 Post. & Fin. 317 ; R. v. Watts, 3 
 New E. 177 ; 33 L. J., M. C. 63 ; L. & Cave, 339 ; 9 Cox, 395, S. C. 
 
 2 E. V. Hyde, 3 Cox, 90. 
 
 ■> E. V. Johnson, 2 C. & Kir. 355, per Alderson, B. 
 
 * See, however, E. v. Newton, 1 Fost. & Fin. 641 ; and E. v. Galvin, 16 Ir. 
 Law E., N. S. 452 ; 10 Cox, 198, S. C, in wliich last case the Irish Judges 
 were almost eq^ually divided upon the point. 
 
 5 E. V. Langhridge, 1 Den. 448 ; 2 C. & Kir. 975, S. C. 
 
 - Id. 
 
 7 E. V. Young, 3 C. & Kir. 106 ; E. v. Osborne, 8 C. & P. 113, per Coleridge, 
 J., and Ld. Abinger. 
 
 s E. V. Parker, 1 Law Eep., C. C. 225 ; 11 Cox, 478 ; 39 L. J., M. C. 60, S. C. ; 
 overruUng E. v. Eichards, 4 Fost. & Fin. 860. See, also, E. v. Carrol, 11 Cox, 
 322, per Hannen, J. 
 
 9 See E. V. Lee, 4 Fost. & Fin. 65, per Pollock, C. B. 
 
 w E. V. France, 2 M. & Rob. 207, per Alderson and Parke, Bs. 
 
CHAP, v.] DEPOSITIONS TAKEN BEFORE JUSTICES. 433 
 
 omission on this head.^ The depositions, when admissible under 
 the Act, may he read in evidence hefore the grand jury as well as 
 at the actual trial.^ 
 
 § 488. Although, as before stated,^ many points may arise § 456 
 respecting the proper mode of proving depositions under the 
 statute, thus much appears to be quite clear, that it is no longer 
 necessary, as formerly was the case, to verify the signature of 
 the magistrate. This change, however, is productive of no real 
 advantage ; for as proof must certainly be adduced " that the 
 deposition was taken in the presence of the accused, and that 
 he, or his counsel or attorney, had a full opportunity of cross- 
 examining the witness," it is obvious that either the justice or his 
 clerk, or at least some person who was present during the whole 
 inquiry,* must be forthcoming, in order to show that the forms of 
 law have been duly complied with. "When the deposition is 
 sought to be read on the ground of the sickness of the witness, it 
 must, of course, be proved that he is at the actual time of the 
 trial too ill to travel ; and the judges, very properly, seem in- 
 clined to hold that this fact should be strictly established.^ Mere 
 proof that the witness was confined to his bed some days before 
 will not suffice ; ^ and, as a general rule, it will be prudent,'' though 
 it is not absolutely necessary,^ to have the testimony of a medical 
 
 § 489. It may here be convenient to repeat, — what was mentioned § 457 
 before in another connexion,^ — that a deposition will be admissible 
 
 > R. V. Miller, 5 Cox, 166, per Maule, J. 
 
 2 R. V. Clements, 2 Den. 251 ; 5 Cox, 191, S. C. 
 
 3 Ante, §§ 482, 483. 
 
 ■• See E. V. Wilsliaw, C. & Marsh. 145 ; E. v. Wilson, 12 Cox, 622. 
 
 5 See E. V. Harris, 4 Cox, 440 ; E. v. Ulner, id. 442 ; R. v. Eiley, 3 C. & 
 Kir. 116 ; see, also, E. v. Day, 6 Cox, 55. 
 
 E. V. Eiley, 3 C. & Kir. 116 ; E. v. WiUiams, 4 Fost. & Fin. 515, per 
 Pigott, B. 
 
 ? E. V. Eiley, 3 C. & Kir. 116 ;E. v. Welton, 9 Cox, 296, per Byles, J. ; E. 
 V. Williams, 4 Fost. & Fin. 515, per Pigott, B. 
 
 8 E. V. Stephenson, 31 L. J., M. C. 147 ; L. & Cave, 165 ; 9 Cox, 156, S. C. ; 
 E. ■». CroiTcher, 3 Fost. & Fin. 285, per Bramwell, B. 
 
 9 Ante, § 467. 
 
 F F 
 
434 DEPOSITIONS TAKEN ON BEHALF OP THE ACCUSED. [PABT II. 
 
 under this Act, though it was taken upon a charge technically 
 different from that in respect of which the accused is afterwards 
 indicted, provided that on the former inquiry a full opportunity 
 of cross-examination has been afforded to him. For instance, 
 the deposition of a deceased person, taken on a charge against 
 the prisoner of having stabbed him, or done him some grievous 
 bodily harm, can be read on a subsequent trial for his murder or 
 manslaughter.^ 
 
 § 490. In addition to the regulations for taking depositions, § 457a 
 which are to be found in § 17 of 11 & 12 V., c. 42,^ an Act 
 was passed in 1867,^ which contains two enactments of some 
 importance relative to this subject. The first* provides, in sub- 
 
 > E. V. Beeston, 24 L. J., M. C. 5 ; Pearce & D. 405, S. C. ; E. v. Dilmore, 
 6 Cox, 52, perWightman, J. ; E. v. Lee, 4 Fost. & Fin. 63, per Pollock, C. B.; 
 '&. V. Williams, 12 Cox, 101. SeeE. v. Clarke, 2 Fost. & Fin. 2. 
 
 2 Ante, § 479. 
 
 3 30 & 31 v., c. 35. 
 
 * § 3 enacts, that " in all cases where any person shall appear or he hronght 
 before any justice or justices of the peace, charged with any indictable offence, 
 whether committed within this realm or upon the high seas or upon land 
 beyond the sea, and whether such person appear voluntarily upon summons, 
 or has been apprehended with or without warrant, or be in custody for the 
 same or any other offence, such justice or justices, before he or they shall 
 commit such accused person for trial or admit him to bail, shall, immediately 
 after obeying the directions of the eighteenth section of the Act eleventh and 
 tweKth Victoria, chapter forty-two, demand and require of the accused person 
 whether he desires to call any witness ; and if the accused person shall, in 
 answer to such demand, call or desire to call any witness or witnesses, such 
 justice or justices shall, in the presence of such accused person, take the state- 
 ment on oath or affirmation, both examination and cross-examination, of those 
 who shall be so called as witnesses by such accused person, and who shall know 
 anything relating to the facts and circumstances of the case, or anything tending 
 to prove the innocence of such accused person, and shall put the same into 
 writing ; and such depositions of such witnesses shall be read over to and 
 signed respectively by the witnesses who shall have been so exam'ined, and 
 shall be signed also by the justice or justices taking the same, and transmitted 
 in due course of law with the depositions ; and such witnesses, not being 
 witnesses merely to the character of the accused, as shall in the opinion of the 
 justice or justices give evidence in any way material to the case, or tending to 
 prove the innocence of the accused person, shall be bound by recognisance to 
 appear and give evidence at the said trial ; and afterwards, upon the trial of 
 such accused person, all the laws now in force relating to. the depositions of 
 
CHAP, v.] DEPOSITIONS TAKEN TO PERPETUATE TESTIMONY. 435 
 
 stance, that every person, who is charged before a justice with 
 an indictable offence, shall be asked whether he desires to call 
 any witnesses ; and, if he does so, the justice, in his presence, 
 shall examine such witnesses on oath, and reduce their state- 
 ments to writing. The depositions thus taken shall then be read 
 over to the witnesses and signed by them, and shall also be 
 countersigned by the justice, and " transmitted in due course of 
 law ; " and afterwards, upon the trial, all the laws relating to the 
 depositions of witnesses for the prosecution shall apply to these 
 depositions. 
 
 § 491. The other enactment^ is intended to provide means for § 45'7b 
 perpetuating the testimony of witnesses, who, being dangerously 
 ill and unable to travel, can yet give material information relating 
 to some indictable offence, or to some person accused of such 
 crime. It is very inartistically drawn, and the lawyer would be 
 more remarkable for courage than for wisdom who would venture 
 to put a legal interpretation on its ambiguous phraseology. Let 
 it speak for itself as follows : — " Whereas, by § 17 of 11 & 12 V., 
 c. 42, it is permitted under certain circumstances to read in 
 evidence on the trial of an accused person the deposition, taken 
 in accordance with the provisions of the said Act, of a witness 
 who is dead, or so ill as to be unable to travel : and whereas, it 
 may happen that a person dangerously ill, and unable to travel, 
 may be able to give material and important information relating to 
 an indictable offence, or to a person accused thereof, and it may 
 not be practicable or permissible to take, in accordance vsdth the 
 provisions of the said Act, the examination or deposition of the 
 person so being ill, so as to make the same available as evidence 
 in the event of his or her death before the trial of the accused 
 
 witnesses for tlie prosecution shall extend and be appUoable to tlie depositions 
 of witnesses hereby directed to be taken.'' § 4 also enacts, that " all the pro- 
 visions of the said Act eleventh and twelfth Victoria, chapter forty-two, 
 relating to the summoning and enforcing the attendance and committal of 
 Avitnesses, and bindiag them by recognisance and committal in default, and 
 for giving the accused person copies of the examinations, and giving jurisdiction 
 to certain persons to act alone, shall be read and shall have operation as part 
 of this Act." 
 
 1 30 & 31 v., c. 35, § 6. 
 
 F p 2 
 
436 DEPOSITIONS TAKEN TO PERPETUATE TESTIMONY. [PABT II. 
 
 person, and it is desirable in the interests of truth and justice 
 that means should be provided for perpetuating such testimony, 
 and for rendering the same available in the event of the death 
 of the person giving the same : therefore, whenever it shall be 
 made to appear to the satisfaction of any justice of the peace that 
 any person dangerously ill, and in the opinion of some registered 
 medical practitioner not likely to recover from such illness, is able 
 and willing to give material information relating to any indictable 
 offence, or relating to any person accused of any such offence, and 
 it shall not be practicable for any justice or justices of the peace to 
 take an examination or deposition in accordance with the provisions 
 of the said Act of the person so being ill, it shall be lawful for the 
 said justice to take in writing the statement on oath or affirmation 
 of such person so being ill, and such justice shall thereupon sub- 
 scribe the same, and shall add thereto by way of caption a state- 
 ment of his reason for taking the same, and of the day and place 
 when and where the same was taken, and of the names of the 
 persons (if any) present at the taking thereof, and, if the same 
 shall relate to any indictable offence for which any accused person 
 is already committed or bailed to appear for trial, shall transmit the 
 same with the said addition to the proper officer of the court for 
 trial at which such accused person shall have been so committed or 
 bailed ; and in all other cases he shall transmit the same to the 
 clerk of the peace of the county, division, city, or borough in which 
 he shall have taken the same, who is hereby required to preserve 
 the same, and file it of record ; and if afterwards, upon the trial of 
 any offender or offence to which the same may relate, the person 
 who made the same statement shall be proved to be dead, or if it 
 shall be proved that there is no reasonable probabiHty that such 
 person will ever be able to travel or to give evidence, it shall be 
 lawful to read such statement in evidence, either for or against the 
 accused, without further proof thereof, if the same purports to be 
 signed by the justice by or before whom it purports to be taken, 
 and provided it be proved to the satisfaction of the court that rea- 
 sonable notice of the intention to take such statement has been 
 served upon the person (whether prosecutor or accused) against 
 whom it is proposed to be read in evidence, and that such person, 
 or his counsel or attorney, had or might have had, if he had chosen 
 
CHAP, v.] DEPOSITIONS TAKEN BEFORE COEONEKS. 437 
 
 to be present, full opportunity of cross-examining the deceased 
 person who made the same."^ 
 
 § 492. The depositions of witnesses, who are examined before § 458 
 the coroner, are rendered admissible as secondary proof, by virtue 
 of the Act of 7 G. 4, c. 64, which in § 4 enacts, " That every 
 coroner, upon any inquisition before him taken, whereby any 
 person shall be indicted for manslaughter or murder, or as an 
 accessory to murder before the fact, shall put in writing the 
 evidence given to the jury before him, or as much thereof as shall 
 be material, and shall have authority to bind by recognizance all 
 such persons as know or declare anything material touching the 
 said manslaughter or murder, or the said offence of being acces- 
 sory to murder, to appear at the next court of oyer and terminer, 
 or gaol delivery, or superior criminal court of a county palatine or 
 great sessions, at which the trial is to be, then and there to pro- 
 secute or give evidence against the party charged ; and every such 
 coroner shall certify and subscribe the same evidence, and all such 
 recognizances, and also the inquisition before him taken, and shall 
 deliver the same to the proper officer of the court in which the trial 
 is to be, before or at the opening of the court." ^ 
 
 § 493. It may be doubtful whether these provisions have not § 439 
 been repealed by § 84 of 11 & 12 V., c. 42;^ but assuming that 
 they are still in force, it will be seen that they differ materially 
 from those which regulate the mode of taking depositions before 
 justices, and of proving them when taken. In the first place, the 
 
 ' § 7 enacts, that " whenever a prisoner in actual custody shall have served, 
 or shall have received, notice of an intention to take such statement as herein- 
 before mentioned, the judge or justice of the peace by whom the prisoner was 
 committed, or the visiting justices of the prison in which he is confined, may, 
 by an order in writing, direct the gaoler having the custody of tlie prisoner to 
 convey him to the place mentioned in the said notice for the purpose of being 
 present at the taking of the statement ; and such gaoler shaU convey the 
 prisoner accordingly, and the expenses of such conveyance shall be paid out of 
 the funds appUoable to the other expenses of the prison from which the 
 prisoner shall have been conveyed." 
 
 2 See 9 G. 4, c. 54, § 4, which contains similar provisions for Jteland. 
 
 3 See R. V. Cleary, 2 Fost. & Fin. 850, 852. 
 
438 DEPOSITIONS TAKEN BEFORE COEONEES. [PAET II. 
 
 coroner is only required to put in writing " so much of tlie eYidence 
 as shall be material ; " secondly, the narrative may be drawn up 
 in the third person ; thirdly, the witness is not required to sign 
 the document, though he usually does so for the purpose of identi- 
 fying it ; ^ fourthly, the deposition must, it would seem, be proved, 
 either by calling the coroner who subscribed it, or by proving his 
 signature thereto, and showing by his clerk, or by some person who 
 was present at the inquiry, that the forms of law have been duly 
 complied with.^ 
 
 § 494. Another striking distinction is said to exist between de- § 460 
 positions returned by justices and those taken by coroners. The 
 former, to be admissible as secondary evidence against the prisoner, 
 must have been taken in his presence ; but it is alleged that the 
 latter will be received, though taken in his absence. This doctrine 
 appears to rest on two or three decisions of the date of Charles 11.,^ 
 which are capable of a far more limited interpretation, and are, 
 moreover, entitled to little consideration, as having been pronounced 
 at a time when the rules of evidence were only partially under- 
 stood; — on dicta thrown out by Lord Kenyon and Mr. Justice 
 BuUer in R. v. Eriswell;* — on a note of a case said to have been 
 decided by Mr. Baron Hotham ;^ — and on a ruling by Mr. Justice 
 Coleridge,* the soundness of which it would be difficult to estab- 
 lish. The opposite doctrine is not only ably supported by Messrs. 
 Starkie,'' Phillipps,^ and Russell,^ but it has of late years been 
 acted on by Mr. Justice Montague Smith,^" and it appears to be so 
 consistent with sound principle as to insure its recognition, should 
 the question be solemnly discussed in modern times.^'- 
 
 ' See E. V. Flemming, 2 Lea. 854. 
 
 2 See E. V. Wilshaw, C. & Mareli. 145. 
 
 3 Ld. Motley's case, Kel. 55 ; 6 How. St. Tr. VVe, S. C. ; Bromwicli's case, 
 1 Lev. 180 ; Thatcher ■;;. "Waller, T. Jones, 53 ; E. v. Harrison, 12 How. St. 
 Tr. 852. 
 
 " 3 T. E. 713, 722. ^ E. v. Purefoy, Pea. Ev. 61, n. 5th ed. 
 
 " Sills V. Brown, 9 C. & P. 601. ' 2 St. Ev. 384—386. 
 
 s 2 Ph. Ev. 74, 75. 
 » 2 Euss. C. & M. 892, 893. 
 1" E. V. Eigg, 4 Fost. & Fin. 1085. 
 " See E. V. Wall, 2 Euss. C. & M. 893, n. e. 
 
CHAP, v.] DEPOSITIONS IN BANKKPCY. — UNDEE MBKCH. SHIP. ACT. 439 
 
 § 495. Two other statutes, which regulate the admissibility of § 461 
 certain depositions, are the Bankruptcy Act, 1869,^ and the Irish 
 Bankrupt and Insolvent Act, 1857.^ The one enacts, in § 108, 
 that, " in case of the death of the bankrupt or his wife, or of a 
 witness whose evidence has been received by any court in any 
 proceeding under this Act, the deposition of the person so deceased, 
 purporting to be sealed with the seal of the court, or a copy thereof 
 purporting to be so sealed, shall be admitted as evidence of the 
 matters therein deposed to." The other enacts, in § 365, that, 
 in the event of the death of any witness deposing to the petitioning 
 creditor's debt, trading, or act of bankruptcy, under any bankruptcy 
 heretofore or hereafter, or under any petition for arrangement, his 
 deposition, purporting to be sealed with the seal of the Court of 
 Bankruptcy, or a copy thereof purporting to be so sealed, shall in 
 all cases be received as evidence of the matters therein respectively 
 contained. 
 
 § 496. " The Merchant Shipping Act, 1854," ^ also contains a § -162 
 curious provision in relation to this subject; for, — after empowering 
 receivers of wreck and justices to take the examinations of certain 
 persons with respect to ships in distress, — it goes on to enact, in 
 § 449, that "Any examination so taken in writing as aforesaid, 
 or a copy thereof, purporting to be certified under the hand of the 
 receiver or justice before whom such examination was taken, shall 
 be admitted 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 prima facie proof of all matters 
 contained in such written examination.* It is presumed, though 
 the Act is silent upon the subject, that these examiuations are not 
 to be regarded in the light of primary evidence, but that they 
 would only be admissible, — like other depositions, — in the event of 
 the witnesses being dead, ill, or otherwise incapable of being present 
 at the trial. ^ 
 
 ' 32 & 33 v., c. 71. 2 20 & 21 V., c. 60, Ir. 
 
 3 17 & 18 v., c. 104. 
 
 '' As to the meaning of this section, see Nothard v. Pepper, 17 Com. B., 
 N. S. 39. 
 
 * See Little Lizzie, The, 3 Law Eep., Aclm. & Ecc. 56. 
 
440 OTHER STATUTABLE EXAMINATIONS. [PAET II. 
 
 § 497. The Irish Act of 50 G. 3, c. 102,— after the humiliating § 4C3 
 recital, that men, who have given information against persons 
 accused of crimes in Ireland, have heen murdered before the trial, 
 in order to prevent their giving evidence, and to effect the acquittal 
 of the accused, — enacts, in § 5, that iif any person, after giving 
 information or examination upon oath against any person for any 
 offence, shall, before the trial, be murdered or violently put to 
 death, or so maimed, or forcibly carried away and secreted, as not 
 to be able to give evidence on the trial, his information or examina- 
 tion shall be admitted in all courts of justice in Ireland as evidence 
 on the trial ; provided (and this is a remarkable proviso, since it 
 differs from the ordinary rule of law on the subject^), that the 
 information or examination of a witness secreted shall not be 
 evidence, unless it shall be found on a collateral issue, to be put 
 to the jury trying the prisoner, that he was secreted by the person 
 on trial, or by some person acting for him, or in his favour. By 
 the subsequent stat. 56 G. 3, c. 87, § 8, Ir., informations, or ex- 
 aminations, under similar circumstances, and after similar proof, 
 are rendered receivable in evidence before the grand jury. 
 
 § 498. Again, the annual Mutiny Act usually provides,^ that any § 464 
 justice, within whose jurisdiction any soldier in the regular army, 
 or on the permanent staff of the mUitia, having a wife or a child, 
 shall be billeted, may summon him, and take his examination in 
 writing upon oath, touching the place of his last legal settlement, 
 and the justice shall give an attested copy of the examination to 
 the person examined, to be by him delivered to his commanding 
 officer, to be produced when required ; and the examination and 
 attested copy shall at any time be admitted as good evidence of such 
 last legal settlement, before any justice, or at any sessions, although 
 the soldier be dead or absent from the kingdom. A somewhat 
 similar clause is generally inserted in the annual Marine Mutiny 
 Act, but in order to give the justice jurisdiction, it is not necessary 
 that the marine should have a wife or child.^ 
 
 1 Ante, § 23. 
 
 2 See 40 V., o. 7, § 92. '^ See 40 V., c 8, § 92 
 
CHAP. Y.J EXAMINATIONS TAKEN IN INDIA AS TO MISDEMEANORS. 441 
 
 § 499. The preceding observations have been confined to cases § 465 
 where the oral testimony has been given, either in some different 
 suit from that in which the secondary evidence is tendered, or in a 
 different stage of the same legal proceedings ; but it now becomes 
 necessary to advert to several Acts of Parliament, and Eules of Court, 
 which have intrenched upon the common law rule, requiring the 
 examination of witnesses to be viva voce in the presence of the 
 jury, and which have, under certain circumstances, substituted for 
 such examination the depositions of witnesses, who have been pre- 
 viously examined in the cause. 
 
 § 500. The first Act relative to this subject was passed in the § 466 
 year 1773,^ and by § 40 provides, that in all cases of indictments 
 or informations laid or exhibited in what is now called the Queen's 
 Bench Division of the High Court for misdemeanors or offences com- 
 mitted in India, it shall be lawful for the said court, upon motion to 
 be made on behalf of the prosecutor^ or defendant, to award a writ 
 of mandamus, requiring the chief justice and judges^ of the High 
 Court of Judicature at Fort William, Madras, or Bombay,* to hold 
 a court, with all convenient speed, for the examination of witnesses, 
 and receiving other proofs concerning the matters charged in such 
 indictments or informations ; and, in the meantime, to cause such 
 public notice to be given of the holding of the said court, and to 
 
 • 13 G. 3, c. 63. 
 
 ^ If the Att.-Gen. move for the rule, his statement that it will be necessary 
 is STiJScient without any affidavit, E. v. Douglas, 2 Dowl. N. S. 416. 
 3 E. V. Douglas, 13 Q. B. 42. 
 
 * The Act, after mentioning the Supreme Court at Fort "William or Calcutta, 
 directs that the writ shall be addressed " to the judges of the Mayor's Court at 
 Madras, Bombay, or Bencoolen, as the case may require ; " but subsequent Acts 
 have constituted supreme courts of judicature at Madras and Bombay, and 
 have transferred to them the powers, &c., formerly exercised by the aboKshed 
 Mayor's Courts. See 39 & 40 G. 3, c. 79, §§ 2, 4, 5 ; 6 G. 4, c. 85, § 20 ; 4 G. 
 4, c. 71, §§ 7—17 ; E. V. Douglas, 13 Q. B. 42. High Courts of Judicatiu-e 
 have now been established at Fort William or Calcutta, Madras, and Bombay, 
 and these courts have all the powers of the former supreme courts, 24 & 25 V., 
 c. 104, §§ 10 & 11. Bencoolen, or Fort Marlborough, which was at one time 
 the chief establishment of the East India Co. in Sumatra, wa?, together with all 
 the other settlements in that island, dehvered up to the Dutch in the year 1825. 
 See 1 Hamilton's E. India Gazetteer, 172. 
 
442 DEPOSITIONS TAKEN IN INDIA IN PROCEED. IN PAEL. [PAET II. 
 
 issue such summons or other process as may be requisite for the 
 attendance of the witnesses, agents, or counsel of the parties, and 
 to adjourn from time to time as occasion may require ; and such 
 examination shall be publicly taken viva voce in the said court, 
 upon the oaths of witnesses, and the oaths of skilful interpreters, 
 administered according to the forms of their several religions ; and 
 shall, by some sworn officers of the court, be reduced into writing 
 on parchment,^ in case any duplicates shall be required on behalf 
 of any of the parties interested, and shall be sent to the Queen's 
 Bench Division closed up, and under the seals of two or more of 
 the judges of the said court, and one or more of the said judges 
 shall deliver the same to the agents of the parties requiring the 
 same ; which agents, or, in case of their death, the person into 
 whose hands the same shall come, shall deliver the same to one of 
 the clerks of the Queen's Bench Division, in the public office, and 
 make oath that he received the same from the judges in India, or, 
 if the agent be dead, in what manner the same came into his hands ; 
 and that the same has not been opened or altered since he received 
 it (which oath the clerk ia court is required to administer) ; " and 
 such depositions, being duly taken and returned according to the 
 true intent and meaning of this Act, shall be allowed and read, and 
 shall be deemed as good and competent evidence, as if such witness 
 had been present, and sworn and examined viva voce at any trial 
 for such crimes or misdemeanors" in the Queen's Bench Division; 
 " and all parties concerned shall be entitled to take copies of such 
 depositions at their own costs and charges." 
 
 § 501. § 42 enacts, that, in all proceedings in Parliament touch- § 467 
 ing any offences committed in India, the Lord Chancellor or Speaker 
 of the House of Lords, and also the Speaker of the House of Com- 
 mons, may issue their warrants to the Governor-General and 
 Council, or to the chief justice and judges of the High Court of 
 Judicature at Fort William, Madras, or Bombay,^ for the examina- 
 tion of witnesses ; and such examination shall be returned to the 
 Lord Chancellor or Speakers respectively, and proceeded upon as if 
 
 ' E. V. Douglas, 13 Q. B. 42. = See ante, § 500, n. 4. 
 
CHAP, v.] DEPOSITIONS TAKEN IN INDIA IN CIVIL ACTIONS. 443 
 
 the directions contained in § 40 were again repeated ; and the ex- 
 amination, so returned, shall be deemed good evidence, and shall 
 be allowed and read in the respective Houses. § 45 provides, that 
 mo depositions taken and returned by virtue of this Act shall be 
 given in evidence, in any capital case, other than such as shall be 
 proceeded against in Parliament. 
 
 § 502. The same statute enacts, ia § 44, that, whenever any § 468 
 person shall commence any action,^ for which cause hath a/risen in 
 India,^ in any of the courts at Westminster, such courts respectively^ 
 may, upon motion there to be made,* award a writ in the nature of 
 a mandamus or commission to the chief justice and judges of the 
 Iligli Court of Judicature at Fort William, Madras, or Bombay,^ for 
 the examination of witnesses ; and such examination, being duly 
 retmrned, shall be allowed and read, and be deemed good evidence, 
 at any trial or hearing between the parties in such action, as if the 
 directions prescribed in § 40 were again repeated. 
 
 § 503. The provisions contained in § 40 of this statute were re- § 469 
 enacted in §§ 78 and 28 of the respective Acts of 24 G. 3, c. 25, 
 and 26 G. 3, c. 57, which regulate the trial of British subjects, 
 who, while employed in India under the Crown or the late East 
 India Ccmipany, shall have been guilty of extortion or other mis- 
 demeanors ; and a clause, substantially the same, though varying 
 in some of the minute details, has been introduced into the Act of 
 42 G. 3, c. 85,^ which authorises the Queen's Bench Division, in 
 
 ' The words of the Act are " any action or suit in law or equity." 
 
 2 See Francisco v. GUmore, 1 B. & P. 177. 
 
 ' Sayage v. Binney, 2 Dowl. 643. 
 
 ■* Tliese words render it necessary for the application to be made to the 
 court, tie Judge at Chamhers having no jurisdiction. Clarke v. E. India Co., 
 6 Dowl. & L. 278. The motion may be made, though issues in law are pending 
 for argument, Kelsall v. Marshall, 1 Com. B., N. S. 266. 
 
 ' See ante, § 500, n. 4. 
 
 ^ § 2. See, as to mode of proceeding under this sect., R. v. Jones, 8 East, 
 31, where the court held, that to entitle a defendant to have his trial put off 
 till the return of the writ of mandamus, he must state, by affidavit, such 
 special grounds as will lead the judges to believe that the witnesses sought to 
 be examined ,aie really material for the defence. 
 
444 DEPOSITIONS TAKEN IN THE COLONIES. [PABT II. 
 
 England, to try any person employed in the public service abroad, 
 who, in the exercise, or under colour, of such employment, shall 
 have committed any offence. By § 3 of this last-named statute, as 
 also by § 81 of 24 G. 3, c. 25, the Queen's Bench Division, instead 
 of directing the evidence to be taken viva voce, is empowered, on 
 motion made by the Attorney- General, prosecutor, or defendant, to 
 order that an examination de bene esse of witnesses upon interro- 
 gatories, in any case where the viva voce testimony of such witnesses 
 cannot conveniently be had, should be taken before an examiner 
 appointed by the court ; and the depositions so taken shall be read,, 
 and deemed sufficient evidence, upon the trial of the indictment or " 
 information, or in any subsequent proceedings relating thereto, 
 saving all just exceptions to the same. The Legislature has, also, 
 by the Act of 6 & 7 V., c. 98, § 4, extended the provisions con- 
 tained in 13 (j. 3, c. 63, § 40, to all indictments or informations 
 laid or exhibited in the Queen's Bench Division, for misdemeanors 
 or offences committed against the Acts passed for the suppression 
 of the slave trade, in any places out of the United Kingdom, and 
 within any British colony, settlement, plantation, or territory. 
 
 § 504. By none of these statutes is the party, who seeks to use § 470 
 the depositions, directed to prove that the witnesses, at the time of 
 the trial, are beyond the jurisdiction of the court. Still, upon 
 general principle, some slight evidence of this nature would seem 
 to be requisite ; for although the language of the Acts, rendering 
 the depositions evidence, is exceedingly strong, it may well be 
 doubted whether an express enactment would not be necessary, in 
 order to override the long-established rule of law, that when a wit- 
 ness is living within the jurisdiction of the court, and the party 
 who requires his evidence has the power of calling him, his deposi- 
 tion cannot be read. This view of the subject is confirmed by the 
 subsequent enactments of 1 W. 4, c. 22, Eng., and 8 & 4 V., 
 c. 105, Ir., which expressly provide, — as will presently be seen,^ — 
 that depositions taken under them shall be deemed merely secondary 
 proof. 
 
 § 505. The Act of 1 W. 4, c. 22,— after reciting that " great § 471 
 
 Post, S 515. 
 
CHAP, v.] ACTS OF 1 W. 4, C. 22, AND 3 & 4 V., c. 105. 445 
 
 difficulties and delays are often experienced, and sometimes a failure 
 of justice takes place, in actions depending in courts of law, by 
 reason of the want of a competent power and authority in the said 
 courts to order and enforce the examination of witnesses, when the 
 same may be required before the trial of a cause ;" and further re- 
 citing that it is expedient to extend the powers and provisions con- 
 tained in the Act of 13 G. 3, c. 63,- — enacts, in § 1, that " all and 
 every the powers, authorities, provisions, and matters contained in 
 the said recited Act, relating to the examination of witnesses in 
 India, shall be, and the same are,* hereby extended to all colonies, 
 islands, plantations, and places under the dominion of His Majesty 
 in foreign parts, and to the judges of the several courts therein, and 
 to all actions depending in any of His Majesty's courts of law at 
 Westminster, in what place or country soever the cause of action 
 may have arisen, and whether the same may have arisen within 
 the jurisdiction of the court, to the judges whereof the writ 
 or commission may be directed, or elsewhere, when it shall appear 
 that the examination of witnesses, under a writ or commission 
 issued in pursuance of the authority hereby given, will be 
 necessary or conducive to the due administration of justice in 
 the matter wherein such writ shall be applied for."^ The stat. 
 8 & 4 v., c. 105, contains a precisely similar enactment in § 66, 
 with respect to the superior courts of law in Ireland, excepting only 
 that, at the place marked above with an asterisk, the words " with 
 reference to all actions in any of Her Majesty's courts of law at 
 Dublin " are introduced ; and the insertion of this clause is here 
 noticed, because the omission of corresponding words in the Act of 
 W. 4, raised on one occasion some slight doubt whether § 1 of that 
 statute did not apply to criminal proceedings in the Court of Queen's 
 Bench, as well as to actions in any of the superior law courts.^ 
 
 § 506. The alterations effected by these Acts do not rest here ; § 472 
 but § 4 of the one, and § 69 of the other, respectively enact, that 
 
 ' The costs of the writ or commission, whether under the Act of 13 G. 3, 
 c. 63, or 1 W. 4, c. 22, or 3 & 4 V., c. 105, and of the proceedings thereon, are 
 in the discretion of the court issuing the same. See 1 W. 4, c. 22, § 3, and 3 
 & 4 v., c. 105, § 68, Ir. 
 
 2 E. V. Wood, 7 M. & W. 573, per Parke, B. 
 
446 COMMISSIONS TO EXAMINE WITNESSES. [PART II. 
 
 it shall be lawful for each of the courts of law at Westminster or 
 Dublin, and the several judges thereof, "in every action depending 
 in such court upon the application of any of the parties to such 
 suit, to order the examination on oath, upon interrogatories or other- 
 wise, before the master or prothonotary of the said court, or other 
 person or persons to be named in such order, of any witnesses 
 within the jurisdiction of the court where the action shall be ele- 
 pending, or to order a commission^ to issue for the examination of 
 witnesses on oath at any place or places out of such jurisdiction, by 
 interrogatories or otherwise, and by the same or any subsequent 
 order or orders to give all such directions touching the time, place, 
 and manner of such examination, as well within the jurisdiction of 
 the court wherein the action shall be depending as without, and all 
 other matters and circumstances connected with such examinations 
 as may appear reasonable and just." ^ Under this enactment it has 
 been held, that an order for a commission may be granted, though 
 the action pending in the court be in the nature of a criminal 
 charge ;^ but the language employed is not sufficiently comprehen- 
 sive to include either indictments,* or criminal informations.^ 
 Neither will a commission be granted for the examination of wit- 
 nesses in an enemy's country pending hostilities.® 
 
 § 507. Although the Statutes just cited have none of them been 
 formally repealed, they have, so far at least as relates to civil pro- 
 ceedings, been to a great extent virtually superseded by the New 
 
 ^ As to when proof may be taken by commission under tlie law of Scotland, 
 see 29 & 30 V., o. 112. 
 
 2 The costs of tlie rule or order, and of the proceedings thereupon, are to be 
 costs in the cause, unless otherwise directed, either by the judge making the 
 rule or order, or by the judge before whom the cause may be tried, or by the 
 court. See 1 W. 4, c. 22, § 9 ; and 3 & 4 V., c. 105, § 74, Ir. But the costs 
 will not, ia general, be allowed, unless the depositions have been used at the 
 trial ; Eidley v. Sutton, 32 L. J., Ex. 122 ; 1 H. & C. 741, S. C. For an ex- 
 ception to this rule, see I), of Beaufort v. E. of Ashbumham, 32 L. J., 0. P. 97 ; 
 13 Com. B., N. S. 598, S. C. 
 
 3 Norton v. Melbourne, 3 Bing. N. C. 67 ; 3 Scott, 393 ; 5 Dowl. 181, S. C, 
 nom. Norton ■;;. Lamb. 
 
 ■• R. V. Lady Briscoe, 1 Dowl. 520, per Parke, .1. 
 '' R. V. Upton St. Leonard's, 10 Q. B. 827. 
 ^ Barrick v. Buba, 16 Com. B. 492. 
 
CHAP, v.] EXAMINATIONS UNDEB XHE NEW RULES. 447 
 
 Rules of the Supreme Court. Under Rule 1, of Order XXXVII., the 
 court or a judge may, in any action or assessment of damages, at 
 any time for sufficient reason, order that any witness, whose attend- 
 ance in court ought for some sufficient cause to be dispensed with, 
 may be examined by interrogatories, or otherwise before a commis- 
 sioner or examiner; " while Rule 4 provides, that "the court or a 
 judge may, in any cause or matter where it shall appear necessary 
 for the purposes of justice, make any order for the examination upon 
 oath before any officer of the court, or any other person or persons,^ 
 and at any place, of any witness or person, and may order any depo- 
 sition so taken to be filed in the court, and may empower ■ any party 
 to any such cause or matter to give such deposition in evidence 
 therein on such terms, if any, as the court or a judge may direct." 
 
 § 508. It does not fall within the scope of this work to furnish § 473 
 minute directions as to the course to be pursued by parties, who 
 seek under these Acts or Rules, either for an order to examine wit- 
 nesses at home, or for an order for a commission, when the witnesses 
 are abroad ; but a few of the more important decisions may briefly 
 be noticed. The court or judge, — for applications of this nature 
 may generally be made to either,^ — will not, except in a case of 
 urgency, to prevent the defeat of justice,' make an order either 
 for the examination of witnesses, or for a commission, until 
 after issue has been joined ; for before that step has been taken 
 it cannot well be ascertained what witnesses are material, neither • 
 is it easy to discover how a false witness can be indicted for 
 perjury.* An order, however, may be made prospectively, with 
 reference to a new trial, in case the verdict already obtained 
 
 ' The examiner may order any witness to be examined apart from the 
 others, even though he he the agent or solicitor of one of the parties. In re 
 West, of Canada Oil Lands & Works Co., W. N. 1877, p. 151, per Jessel, M. K. 
 See 15 & 16 V., c. 86, § 31. 
 
 2 See ante, § 502, n. 4. 
 
 3 Finney v. Beesley, 17 Q. B. 86 ; Stone v. Stone, 31 L. J., Pr. & Mat. 136 ; 
 Fischer v. Hahn, 13 Com. B., N. S. 659 ; 32 L. J., C. P. 209, S. 0. See Braun 
 V. MoUett, 16 Com. B. 514 ; Brown v. Brown, 33 L. J., Pr. & Mat. 203. 
 
 " Mondel v. Steele, 8 M. & W. 300 ; 9 Dowl. 812, S. C. ; Clutterhuck v. 
 Jones, 6 Dowl. & L. 251, per Patteson, J. ; Dye v. Bennett, 1 L. M. & P. 92, 
 n. a ; Shaw v. Shaw, 31 L. J., Pr. & Mat. 95 ; 2 Swab. & Trist. 642, S. C. 
 
448 CONTENTS OF OEDEES FOE COMMISSIONS. [PAET II. 
 
 should be set aside ; ^ and if the witness reside beyond the juris- 
 diction of the court, the application should be made as soon as 
 possible after issue joined.^ In the case of a foreign commission, 
 the order must specify the place, and also, within certain limits, 
 the time of examination ; ^ but it need not name the witnesses to 
 be examined.* Neither is it necessary that the order should 
 contain the names of the commissioners, but the parties are 
 usually left to determine by subsequent arrangement who the 
 commissioners shall be, and their names are then inserted in the 
 commission.' Moreover, the commission is not a writ, and does 
 not seem to require any teste. ^ 
 
 § 509. The affidavit in support of the motion must, — except § 474 
 under very special circumstances,'' — state the names of at least 
 some of the witnesses proposed to be examined, or otherwise 
 describe who they are ; ^ though, to support a commission from 
 the Chancery Division, this precision will not be deemed essen- 
 tial, if the pleadings clearly show that the examination of wit- 
 nesses is necessary.' It should also state that the witnesses 
 are material and necessary,^" though it need not, in general, add, 
 either that their evidence is admissible, or that the application is 
 
 1 Hall V. Rouse, 4 M. & W. 27, per Parke, B. 
 
 2 Brydges v. Fisher, 4 M. & So. 458. But see Weekes v. Pall, 6 Dowl. 462. 
 
 3 Greville v. Stulz, 11 Q. B. 997 ; Simms v. Henderson, id. 1015. But the 
 omission of these directions is a mere irregularity, which may be waived. See 
 Howkins v. Baldwin, 2 L. M. & P. 250 ; 16 Q. B. 375, S. 0. 
 
 1 Niool V. Alison, 11 Q. B. 1012, per Patteson, J. * i^_ ^006. « Id. 
 
 ? Cow V. Kinnersley, 7 Scott, N. R. 892 ; 6 M. & Gr. 981 ; 1 Dowl. & L. 
 906, S. C, where the defendant, who required the commission, was an executrix, 
 and was ready to bring the amount claimed into court to abide the event. 
 
 8 Gunter v. MoTear, 1 M. & W. 201 ; 4 Dowl. 722, S. C, nom. Gunter v. 
 McKear ; Beresford v. Easthope, 8 Dowl. 294 ; Dimond v. VaUance, 7 Dowl. 
 590. In Boyoe v. Rusboro', 2 Ir. Law R., N. S. 266, where a commission was 
 applied for to examine witnesses in Canada, and the affidavit in support of the 
 motion did not give the names, descriptions, and residences of the witnesses ; 
 the court, in directing the commission to issue, made an order that the opposite 
 side should be furnished with these particulars within a reasonable time. 
 
 ' Carbonell v. Bessell, 5 Sim. 636 ; Rougemont v. Royal Ex. Ass. Co., 7 Ves. 
 304 ; M'Hardy v. Hitchcock, 11 Beav. 93. 
 
 w Norton v. Melbourne, 3 Bing. N. C. 67 ; 3 Scott, 398 ; 5 Dowl. 181, S. C. ; 
 Dye V. Bennett, 1 L. M. & P. 92. 
 
CHAP, v.] ON WHAT AFFIDAVITS COMMISSION GRANTED. 449 
 
 made bona fide, or that the party moving has a good case on the 
 merits ; ^ but, if the granting the commission would necessarily 
 occasion great delay, and if the adverse affidavits were to show 
 grounds for assuming that the witness would not be material or 
 necessary,^ then the court, in the exercise of its discretion, would 
 probably not be satisfied, unless the affidavit in support of the 
 motion should point out, not only in what manner the evidence 
 would be material, but also that it would be admissible ; ^ and if 
 there were reason to believe that the application was made by the 
 defendant for a sinister motive, it would either be refused, or, at 
 least, the applicant would be ordered to bring the money in dispute 
 into court.* In one case, where the defendant moved for a com- 
 mission to examine witnesses in New Zealand, the court refused 
 to interfere, unless an affidavit could be produced from his solicitor, 
 showing that the evidence to be given by the persons proposed 
 to be examined was material and necessary to the defence of the 
 action.^ The affidavit must further disclose, either that the wit- 
 ness is out of the jurisdiction of the court,^ or that he will be 
 so at the time of the trial, being about to leave the country;'' or 
 that he is in such a precarious state of health as to render it 
 highly probable that he vnll be unable to attend the trial.^ 
 
 § 510. Although the judges are empowered by these Acts and § 475 
 Eules to grant commissions to examine parties to the record who 
 are resident abroad,^ — for such persons are now, by virtue of Lord 
 
 1 Baddeley v. Gilmore, 1 M. & "W. 55 ; Tyr. & Gr. 369, S. C. ; Westmore- 
 land V. Hiiggins, 1 Dowl. N. S. 800. 
 
 2 Dye V. Bennett, 1 L. M, & P. 92. 
 
 3 Lloyd V. Key, 3 Dowl. 253, per Parke, B. ; Lane v. Bagshaw, 16 Com. 
 B. 576. 
 
 ^ Sparkes v. Barrett, 5 Scott, 402. 
 
 ' Healey v. Young, 2 Com. B. 702. See Barry v. Barclay, 15 Com. B., 
 N. S. 849. 
 
 « Norton V. Melbourne, 3 Bing. N. C. 67 ; 3 Scott, 398 ; 5 Dowl. 181, S. C. 
 
 ? Pirie v. Iron, 8 Bing. 143 ; 1 M. & Sc. 223 ; 1 Dowl. 252, S. C. 
 
 8 Abraham v. Newton, 8 Bing. 274 ; 1 Dowl. 266 ; 1 M. & Sc. 384, S. C, 
 nom. Abraham v. Norton ; Pond v. Dimes, 3 M. & Sc. 161 ; 2 Dowl. 730 
 S. C. ; Davis v. Lowndes, 6 Scott, 738 ; 7 Dowl. 101, S. C. In this last case 
 the affidavit of a medical man was required. 
 
 5 Codd V. Donnelly, 9 Ir. Law R., N. S. 465 ; Walker v. Bennett, I. E. 5 
 
 G G 
 
450 EXAMINATIONS TAKEN UNDER COMMISSIONS. [PART II. 
 
 Brougham's Act,^ competent witnesses, — it is clear, that motions 
 for this purpose ought not to be lightly entertained, especially 
 when made on behalf of the party who is sought to be examined. 
 In a case,^ where this question was under discussion in the. 
 Queen's Bench, that court very properly determined that the 
 application could not be granted, unless it were supported by 
 affidavits clearly showing that the commission would, under the 
 circumstances, be conducive to the due administration of justice ; 
 and Lord Campbell dryly remarked, that a less stringent rule 
 would inevitably lead to the pernicious practice of parties going 
 abroad to avoid the risk of cross-examination in open court. 
 
 § 511. In commissions to examine witnesses out of the juris- § 476 
 diction of the court, a clause is usually introduced requiring the 
 commissioners to be sworn. This clause, however, is not essen- 
 tial, and on several occasions it has actually been omitted, where, 
 in order to enforce the attendance of witnesses, the commission 
 has been directed either to the judges of a foreign court,^ or to the 
 foreign court itself.* From these cases, as well as from others,^ 
 it is now perfectly clear that, under §§4 and 69 of the respective 
 Acts of 1 W. 4, c. 22, and 3 & 4 V., c. 105, and the Eules of the 
 Supreme Court, commissions may be granted to examine witnesses, 
 while resident in countries beyond the dominion of the British 
 Crown. If the witness reside in Scotland or Ireland, application 
 for a commission to examine him must be made, either under the 
 New Rules, or under § 4 of 1 W. 4, c. 22, since the words " foreign 
 parts," used in § 1, do not include those divisions of the United 
 Kingdom." The same observation applies where the motion is made 
 in Dublin, and the witness is resident in Scotland or England. 
 
 C. L. 366. In this last case the court, on the application of a plaintiff residing 
 in America, issued a commission to examine him on his own behalf. 
 
 1 14 & 15 v., c. 99. 
 
 2 Castelli V. Groom, 18 Q. B. 490. See Braun v. Mollett, 16 Com. B. 514 ; 
 Fischer v. Hahn, 13 Com. B., N. S. 659 ; 32 L. J., C. P. 209, S. 0. 
 
 3 Clay 0. Stephenson, 3 A. & E. 807 ; 5 N. & M. 318, S. C. ; Ponsford v. 
 O'Connor, 5 M. & W. 673 ; 7 Dowl. 866, S. C. ; Lumley v. Gye, 3 E. & B. 
 114. See, also, Boelen v.. Melladew, 10 Com. B. 898. 
 
 * Fischer v. Sztaray, 27 L. J., Q. B. 239 ; S. C. nom. Fischer v. Izataray, 
 E. B. & E. 321. * Duckett v. Williams, 1 C. & J. 510 ; 1 Dowl. 291, S. 0. 
 
 " Wainwright v. Bland, 3 Dowl. 653. 
 
CHAP. V.J EXAMINATIONS TAKEN UNDEK COMMISSIONS. 451 
 
 § 512. The commission usually directs that the witnesses shall § 476 
 be examined upon written interrogatories ; but this is a matter for 
 the discretion of the court, which may order, if it think fit, that the 
 examination and cross-examination shall be conducted viv^ voce, 
 either altogether, or as to particular portions of the evidence.-' In 
 the event of such an order, the questions and answers are reduced 
 into writing, and returned as in ordinary cases. After a commis- 
 sion has been granted to examine witnesses in a foreign country, 
 the court, before its execution, has a discretionary power to disallow 
 any interrogatories or cross-interrogatories, which are likely to deter 
 a witness from giving evidence before the commission.^ In order 
 to render the depositions taken under a commission available, the 
 evidence must be such, in substance, as would be received according 
 to the English law ; and if at the trial it should appear, either on 
 the face of the depositions, or by extrinsic proof, that the commis- 
 sioners have admitted illegal, or rejected legal, evidence, the judge' 
 will, it seems, be empowered, in the exercise of his discretion,, to* • 
 suppress the depositions either wholly or in part.^ 
 
 § 513. The commissioners must substantially follow the in- § 477 
 structions which they have received by the instrument appointing 
 them, though the court will not look out critically for objections 
 to their conduct, but will rather in their favour presume that they 
 have discharged their duty.* Thus, where a commission, directed 
 to the judges of a foreign court, required that after the examinations 
 had been taken, the same should be transmitted to this country, 
 it was held insufficient to send mere copies of them ; ^ but where 
 commissioners for the examination of witnesses abroad were 
 directed to reduce the examinations into writing in the English 
 
 1 Pole V. Rogers, 3 Bing. N. C. 780. See Williamson v. Page, 1 Com. B. 464j 
 
 2 Stocks -B. Ellis, 8 Law Eep., Q. B. 454 ; 42 L. J., Q. B. 241, S. C. 
 
 3 Lumley v. Gye, 3 E. & B. 114. 
 
 " Atkins V. Palmer, 4 B. & A. 380, per Atbott, C. J. ; Greville v. Stiilz, 11 
 Q. B. 1004, per Ld. Denman ; HitoMns v. Hitchins, 35 L. J., Pr. & Mat. 62 • 
 1 Law Rep., P. & D. 153, S. C. ; Grill v. Gen. Iron Screw Collier Co., 1 Law 
 Rep., C. P. 600 ; 35 L. J., C. P. 321 ; 1 H. & R. 654, S. C. ; Hodges v. Cobb, 
 36 L. J., Q. B. 265 ; 2 Law Rep., Q. B. 652 ; 8 B. & S. 583, S. C. 
 
 5 Clay V. Stephenson, 7 A. & E. 185 ; 2 N. & P. 189, S. C. 
 
 6 2 
 
452 EXAMINATIONS TAKEN UNDER COMMISSIONS. [PART II. 
 
 language, and to swear an interpreter to translate the oath, 
 interrogatories, and depositions, the court held that the com- 
 mission was well executed by the return of depositions, which 
 had originally been taken down in the foreign language, and six 
 weeks afterwards had been translated by the intei-preter into 
 English.^ So, when the commission contained a direction that 
 the witnesses should be examined apart from each other, the 
 court presumed that the commissioners had complied with this 
 order, although their return was silent on the subject.^ Possibly, 
 however, the court would not feel justified in presuming that com- 
 missioners had taken the oaths prescribed to them before acting.^ 
 The commissioners must also transmit whatever original docu- 
 ments have been produced in evidence before them, as copies of 
 such documents, however authenticated, will not be admissible ; * 
 unless, indeed, it be distinctly proved, that the law of the country 
 where the commission was held has prevented the removal of the 
 originals.^ 
 
 § 514. It may here be convenient to notice a general rule § 478 
 which, — prior to the Judicature Act of 1875, — was laid down by 
 the Common Law Judges, and which provided that all depositions 
 of witnesses taken under an order of a judge, rule of court, or writ 
 of commission, should be returned to and filed in the office of the 
 Masters of the Court in which the action or proceeding was 
 pending.^ 
 
 § 515. § 10 of the English Act, 1 W. 4, c. 22, and § 75 of the Irish § 473 
 Act, 3 & 4 v., c. 105, have further enacted, that " no examination 
 or deposition to be taken by virtue of these Acts respectively shall 
 be read in evidence at any trial without the consent of the party 
 against whom the same may be offered, unless it shall appear, to 
 the satisfaction of the judge, that the examinant or deponent is 
 
 1 Atkins V. Palmer, 4 B. & A. 377 ; K. v. Douglas, 13 Q. B. 42. 
 
 ' Simms v. Henderson, 11 Q. B. 1015. 
 
 s Brydges v. Branfill, 12 Sim. 334. 
 
 * E. V. Douglas, 1 C. & Kir. 670. 
 
 5 Alivon V. Fumival, 1 0. M. & E. 277. See 14 & 15 V., c. 99, § 7. 
 
 « Eeg. Gen., H .T., 16 V., r. 33 ; 1 E. & B. ix. 
 
CHAP, v.] EXAMINATIONS UNDER COMMISSIONS, WHEN ADMISSIBLE. 453 
 
 beyond the jurisdiction of the court,i or dead, or unable from per- 
 manent sickness or other permanent infirmity, to attend the trial ; 
 in all or any of which cases the examinations and depositions, 
 certified under the hand of the commissioners, master, prothono- 
 tary, or other person taking the same, shall and may, without proof 
 of the signature to such certificate, be received and read in eyidence, 
 saying all just exceptions." 
 
 § 516. It will be seen that, under the above enactments, deposi- § 479 
 tions were rendered admissible only in one or other of four events. 
 First, if the opposite party consented; secondly, if the witness were 
 proved to be dead ; thirdly, if he were shown to be beyond the 
 jurisdiction of the court ; and, lastly, if it appeared that, from j^er- 
 manent sickness or infirmity, — which terms do not necessarily mean 
 an incurable malady, but will be satisfied by any grave or serious 
 illness,^- — he could not attend the trial. It is true that, by virtue of 
 Order XXXVII., Rule 4,^ of the New Eules, none of these conditions 
 are now absolutely binding, for the judge would seem to be clothed 
 with power to order depositions to be given in evidence in any case, 
 quite irrespective of the conditions and in spite of them all. Still, 
 that power must be guided by a judicial discretion, and the judge 
 would be more bold than wise, who should set at nought those safe- 
 guards which the Legislature has hitherto deemed essential to the 
 due administration of justice. It is probable, therefore, that in 
 practice, the admissibility in evidence of depositions will still, in 
 the absence of consent, — as formerly, — depend on the capability of 
 the witness' attendance at the trial; and this view of the law is con- 
 siderably strengthened by a proviso contained in Eule 1, of the same 
 Order, which limits the admissibility of affidavits, by declaring that 
 
 ' By tlie Scotch, law, wlien a witness residing abroad is examined under a 
 commission, his deposition may he read without proving at the trial that he is 
 then absent ; and the onus of showing that he is within the jurisdiction rests 
 on the objecting party. Sutton v. Aiiislie, 1 Macq. So. Gas. H. of L. 299. The 
 same doctrine has been recognised by Sic C. Cresswell in the Matrimonial 
 Court. Pollack v. Pollack, and Mills v. Mills, 30 L. J., Pr. & Mat. 183 ; 2 
 Swab. & Trist. 310, S. 0. 
 
 2 D. of Beaufort v. Crawshay, 35 L. J., C. P. 342 ; 1 Law Kep., C. P. 699 ; 
 and 1 H. & R. 638, S. C. 
 
 3 Cited ante, § 507. 
 
454 EX^miNATIONS UNDEE COMMISSIONS, WHEN ADMISSIBLE. [PART II. 
 
 " where it appears to the court or judge that the other party banci 
 fide desires the production of a witness for cross-examination, and 
 tliat such ivitness can he •produced, an order shall not he made 
 authorizing the evidence of such witness to be given by affidavit." 
 
 § 517. Assuming, then, the law to be as stated above, the ques- § 479 
 tion remains, How is the incapacity of the witness to attend the trial 
 to be proved ? As the evidence on that point is exclusively addressed 
 to the judge, a doubt has been raised as to whether affidavits will 
 not be admissible in lieu of the ordinary viva voce testimony ; and 
 on one occasion Chief Baron Pollock received the affidavit of a 
 medical man, as sufficient proof of the permanent sickness of a de- 
 ponent to let in his deposition.^ This course, however, though 
 highly convenient, is of questionable legality ; " and the more so, as 
 the judges seem inclined, in other respects, to construe these pro- 
 visions strictly. Thus, where a witness stated that he had seen the 
 deponent, whose examination had been taken before the master on 
 board a ship bound for Montreal on the day preceding the trial ; 
 that he then had his luggage on board ; and that the ship in the 
 evening was lying below Gravesend waiting for the captain. Lord 
 Denman held that this was not sufficient,^ though less stringent 
 evidence has satisfied other judges, in cases where the admissibility 
 of the depositions rested on the principles of the common law.* So, 
 where in order to put in the deposition of a witness examined under 
 1 W. 4, c. 22, the attorney's clerk swore that he had made inquiries 
 for the witness at his residence, and had there been told, by a person 
 whom he believed to be the wife of the witness, that he had sailed 
 in a certain ship, Lord Abinger rejected the testimony as hearsay, 
 observing that the woman who gave the information to the clerk, or 
 some person who knew of his own knowledge that the witness was 
 
 ' Knight «. Campbell, Guildford Summer Ass. 1848, MS. 
 
 ^ The point was again raised and left undecided in the case of the D. of 
 Beaufort v. Crawshay, 35 L. J., C. P. 342 ; 1 Law Eep., C. P. 699 ; and 1 H. 
 & E. 638, S. C. There, Willes, J., who seemed inclined to support the raling 
 of the Chief Baron, referred to K. v. Ryle, 9 M. & W. 227 ; but that case, on 
 careful examination, will be found to throw a most treacherous light on the 
 pubjeot, relating, as it does, to a mere ax-parte proceeding. 
 
 ^ Carruthers v. Graham, C. & Marsh. 5. 
 
 * See ante, § 473. 
 
CHAP, v.] COMMISSIONS PROM COURTS OF PROBATE OR DIVORCE. 465 
 
 abroad, should have been called.^ This decision was doubtless 
 correct with reference to the wording of the Act; but, as before 
 stated, the evidence would have been admissible at common law, to 
 prove, not indeed that the witness was abroad, but that inquiries 
 had been made for him, and that he could not be found.^ 
 
 § 518. All the provisions of the Acts of 13 G. 3, c. 63, 1 W. 4, § 480 
 c. 22, and 3 & 4 V., c. 105, which relate to the examination of wit- 
 nesses under the commissions and orders of the superior courts of law, 
 have been extended to all suits and proceedings on the revenue side 
 of the Court of Exchequer.' They have also been made applicable 
 to the Probate and Divorce Division of the High Court in England, 
 and to the corresponding Courts in Ireland. Each of the statutes 
 creating these courts contains an enactment,* which provides, 
 that, "where a witness is out of the jurisdiction of the court, 
 or where by reason of his illness or from other circumstances, the 
 court shall not think fit to enforce the attendance of the witness in 
 open court, it shall be lawful for the court to order a commission to 
 issue for the examination of such witness on oath, upon interroga- 
 tories or otherwise, or if the witness be vnthin the jurisdiction of the 
 court, to order the examination of such witness on oath, upon inter- 
 rogatories or otherwise, before- any officer of the said court, or other 
 person to be named in such order for the purpose."^ The sectio-a 
 then proceeds to clothe the court with all the powers vested in tlie 
 Common Law Courts by the Acts just cited.^ 
 
 § 519. The legislation on this subject, so far as it relates to the § 480a 
 Courts of Bankruptcy in England, is somewhat bald ; for the only 
 
 ' Robinson v. Markis, 2 M. & Rob. 375. 
 
 2 See ante, § 475. 
 
 ' 22 & 23 v., 0. 21, § 16. See, as to tbe former law, Att.-Gen. v. Bovet, 15 
 M. & W. 60. 
 
 ^ 20 & 21 v., c. 77, § 32 ; 20 & 21 V., c. 79, § 37, Ir. ; and 20 & 21 V., c. 85, 
 § 47. See also 33 & 34 V., c. 110, § 24, Ir. 
 
 5 See Brown v. Brown, 38 L. J., Pr. & Mat. 78 ; 1 Law Rep., P. & D. 
 720, S. C. 
 
 ' See, also, tlie rules of March, 1874, for the Ct. of Prob. in Eng., rr. 116— 
 123, and Form 31. Also, the rules of 1865 for the Ct. of Div. & Mat. Causes, 
 n-. 129—137, Form 20. 
 
456 EXAMINATIONS IN BANKRUPTCY — IN COUNTY COURTS. [PART II. 
 
 enactment in reference to the matter is contained in the 75th 
 section of the Act of 1869,^ which simply empowers the court to 
 " order that a person named in the order being in Scotland or in 
 Ireland shall be examined there." To these few words a supple- 
 mentary rule^ has been added, which proYides, in language pro- 
 voldngly vague, that "the court may in any matter take the whole 
 or any part of the evidence either viva voce, or by interrogatories, or 
 upon affidavit, or by commission abroad." 
 
 § 520. The County Court rules on the same subject are not much 
 more satisfactory than those which are recognised in the Bank- 
 ruptcy Court. They will be found in Order XIV. of the Kules of 
 1875. Rule 7 of that Order provides, that " in executing any order 
 made under these rules,^ or under section 53 of ' The Common 
 Law Procedure Act, 1854,'^ the registrar, or his clerk in his pre- 
 sence, shall transcribe the answers given by the witnesses examined 
 before him, and the registrar shall read over the answers so tran- 
 scribed, and the witness shall sign his name at the foot thereof, and 
 the registrar shall thereupon file the same as the deposition of such 
 witness." Rule 8 then provides, that " upon the application of a 
 party desirous to examine a witness residing out of the jurisdiction 
 of the court, the judge may, if he thinks fit, appoint the registrar 
 of the court within the district of which such witness resides to 
 take the examination of such witness, who shall take the same in 
 the manner provided by the last preceding rule, and transmit it by 
 post to the registrar of the court in which the action is pending." 
 Rule 9 further provides, that "when it shall be necessary to examine 
 a witness de bene esse, application upon affidavit shall be made to 
 the judge or registrar to appoint an examiner for that purpose ; " 
 but this rule — standing alone as it does — would seem to be mere 
 waste paper. Rule 10 is also sufficiently funny, for it explains to 
 the suitor that " affidavits and depositions shall be read as the 
 evidence of the person by tvhom they are used." It would indeed be 
 odd if this were not the case. 
 
 ' 32 & 33 v., c. 71. 2 Bptcy. Rules of 1870, r. 49. 
 
 " The only rule applicable would seem to be rule 8, cited infra. 
 " 17 & 18 v., c. 125. 
 
CHAP, v.] INTEREOGATOEIES UNDER NEW RULES. 457 
 
 § 521. Several important provisions were introduced into the 
 Common Law Procedure Act of 1854/ for the purpose of conferring 
 upon the old Courts of Common Law powers of enforcing pre- 
 liminary discovery. It is unnecessary here to describe the machinery 
 by which that object was sought to be attained, further than to ex- 
 plain that the litigants had, under the statute, no inherent right to 
 discovery, but were obliged in all cases, before they could deliver in- 
 terrogatories, to obtain the leave of the court or a judge. 
 
 § 522. Since the year 1875, however, a bolder policy has pre- 
 vailed, and under the Rules of the Supreme Court, litigants in the 
 Common Law Divisions are now empowered, — as suitors in Chancery 
 have long been, — with or without leave, to scrape the consciences 
 of their opponents by means of interrogatories. Order XXXI. R. 1, 
 attains this object by providing, that "the plaintiff inay, at the time 
 of delivering his statement of claim,^ or at any subsequent time 
 not later than the close of the pleadings, and a defendant may, at 
 the time of delivering his defence, or at any subsequent time not 
 later than the close of the pleadings, 'without any order for that 
 purpose, and either party may, at any time, by leave of the court or 
 a judge, deliver interrogatories^ in writing for the examination of the 
 
 ' 17 & 18 v., c. 125, §§ 51 — 57. For corresponding provisions relative to 
 Ireland, see 19 & 20 V., c. 102, §§ 56—62. Similar powers were also extended 
 to the old Court of Admiralty, whether for England, see 24 & 25 V., c. 10, § 17 ; 
 or for Ireland, see 30 & 31 V., o. 114, § 41, Ir. 
 2 See Mercier v. Cotton, L. R., 1 Q. B. D. 442, cited post, § 528. 
 ^ The Form, as given in the rales, is scarcely as valuable as might have been 
 expected, and the more so as a special rule has been deemed necessary declaring 
 that interrogatories may be in that form, " with such variations as circumstancea 
 may require." See R. 3, and Form 7, which is as follows :— 
 " In the High Court of Justice, 1874. B. No. 
 
 Division. 
 
 Between A. B., plaintiff, 
 and 
 C. D., E. F., & G. H., defendants. 
 Interrogatories on behalf of the above-named [plaintiff, or defendant, C. D.] for 
 the examination of the above-named Idefeiidants, E. F. & G. H., oi plaintiff .] 
 
 1. Did not, &c. 
 
 2. Has not, &ei 
 
 [The defendant E. F. is required to answer the interrogatories numbered .] 
 
 [Tlie defendant G. H. is required to answer the interrogatories numbered .]" 
 
458 INTBREOGATOEIES IN CASE OF CORPORATIONS. [PAET II. 
 
 opposite party or parties, or any one or more of such parties, with 
 a note at the foot thereof, stating which of such inten-ogatories each 
 of such persons is required to answer : Provided that no party shall 
 deliver more than one set of interrogatories to the same party 
 without an order for that purpose." 
 
 § 523. Although this Eule, if literally interpreted, empowers the 
 court or a judge to grant leave for the delivery of interrogatories 
 " at any time," such power will not in actual practice, — except under 
 special circumstances amounting almost to a case of urgent neces- 
 sity,i — be exercised in favour of a plaintiff before he has put in his 
 statement of claim, or in favour of a defendant before he has put 
 in his defence.^ 
 
 § 524. Although in ordinary actions litigants have now a right 
 under the above rule to exhibit interrogatories to their opponents, 
 a difficulty occurs where one or both are corporate bodies, — and here 
 a special rule has been deemed necessary, which provides, (see R. 4), 
 that " if any party to an action be a body corporate or a joint stock 
 company, whether incorporated or not, or any other body of persons, 
 empowered by law to sue or be sued, whether in its own name or in 
 the name of any officer or other person, any opposite party may 
 apply at chambers for an order allowing him to deliver interroga- 
 tories to any member or officer^ of such corporation, company, or 
 body, and an order may be made accordingly." 
 
 § 525. As it was obvious that the liberty granted by Rule 1 
 would soon, — if left unfettered, — degenerate into licence, and instead 
 of aiding the investigation of truth, would only heap up what 
 lawyers love to call with selfish tautology " costs, charges, and ex- 
 penses," a remedy for this anticipated abuse has been devised by 
 
 ' See Acheson v. Henry, I. R. 5 C. L. 496 ; Gourley v. PlimsoU, 42 L. J., 
 
 C. P. 244 ; 8 Law Rep., C. P. 362, S. C. 
 
 ° Disney v. Loiiglsoume, 45 L. J., Cli. 532, per Jessel, M. R. ; L. R., 2 Ch. 
 
 D. 704, S. C. See Martin v. Hemming, 10 Ex. R. 478 ; explained in Forshaw 
 V. Le-wis, id. 716 ; Croomes v. Morrison, 5 E. & B. 984 ; Jones v. Pratt, 6 H. 
 & N. 697 ; Anon. v. Parr, 34 L. J., Q. B. 95 ; S. C, nom. Morris v. Parr, 6 B. 
 & S. 203. 
 
 ' See Rep. of Costa Rica v. Erlanger, L. R., 1 Ch, D. 171, per Ct. of Ap. 
 
CHAP, v.] COSTS OF NEEDLESS INTEKEOGATORIES. 459 
 
 Eule 2, which is thus expressed :—" The courb in adjusting the 
 costs of the action shall, at the instance of any party, inquire or 
 cause inquiry to be made into the propriety of exhibiting such in- 
 terrogatories, and if it is the opinion of the taxing master or of the 
 court or judge, that such interrogatories have been exhibited un- 
 reasonably, vexatiously, or at improper length, the costs occasioned 
 by the said interrogatories and the answers thereto shall be borne 
 by the party in fault." 
 
 § 526. Whether these provisions will prove effective or not re- 
 mains to be seen, but he must be a sanguine reformer who can 
 await the result of the experiment without some apprehension. 
 The question " quis custodiet custodes?" forces itself upon the 
 memory, and the discretion of a taxing master paid by the piece, — 
 subject though it may be to the costly control of a judge, — will 
 scarcely afford a very safe protection to the suitor against the danger 
 of interrogatories being exhibited " unreasonably, vexatiously, or at 
 improper length." 
 
 § 527. Another attempt to keep within due bounds the powers 
 entrusted to suitors by Eule 1, has been embodied in Eule 5, by 
 virtue of which " any party called upon to answer interrogatories, 
 whether by himself or by any member or officer, may, within four 
 days after service of the interrogatories, apply at chambers to strike 
 out any interrogatory, on the ground that it is scandalous or irrele- 
 vant, or is not put bona fide for the purposes of the action, or 
 that the matter inquired after is not sufficiently material at that 
 stage of the action, or on any other ground. And the judge, 
 if satisfied that any interrogatory is ohjectionahle, may order it 
 to be struck out." 
 
 § 628. This Eule is an extremely important one, and it behoves 
 all judges to enforce its provisions with firmness and care. One 
 valuable decision respecting it has already been pronounced ; for, 
 although a plaintiff would seem to be entitled by Eule 1 to deliver 
 interrogatories with his statement of claim, it has been held that he 
 cannot in fact take that step without incurring a serious risk; 
 because the judges, — being empowered by the Eule under discussion 
 
460 INTEKROGATOEIES TO BE ANSWERED BY AFFIDAVIT. [PAET II. 
 
 to strike out any interrogatories which are either not material at 
 the date of their deliyery or otherwise objectionable, — have deter- 
 mined, almost as a matter of course, to set aside all interrogatories 
 which precede the delivery of the statement of defence.^ 
 
 § 529. Order XXXI, — after further providing that all interroga- 
 tories " shall be answered by affidavit, to be filed within ten days 
 or such other time as a judge may allow," ^ and that such affidavit 
 may be in accordance with the Form given,^ and shall, if exceed- 
 ing ten folios, be printed, unless otherwise ordered by a judge,^ — 
 goes on to declare, in Rule 8, that "any objection to answering 
 any interrogatory may be taken, and the ground thereof stated, 
 in the affidavit ; " and in Rule 9, that " no exceptions shall be 
 taken to any affidavit in answer, but the sufficiency or otherwise 
 of any such affidavit objected to as insufficient shall be deter- 
 mined by the court or a judge on motion or summons." Rule 10, 
 then provides, that, "If any person interrogated omits to answer 
 or answers insufficiently, the party interrogating may apply to the 
 court or a judge for an order requiring him to answer, or to answer 
 further, as the case may be. And an order may be made requiring 
 him to answer, or answer further, either by affidavit or by viva 
 voce examination, as the judge may direct." 
 
 § 530. Although the omission to answer interrogatories, when 
 delivered without the leave of the court, under Rule 1 of Order 
 XXXI., is not in itself a contempt of court, but only entitles the 
 
 ' Meroier v. Cotton, L. E., 1 Q. B. D. 442, per Ct. of Ap. ; 46 L. J., Q. B. 
 184, S. C. 2 ^ Q 
 
 '' R. 7, and Form 8, which, like Fomi 7, is all kit valueless, being as 
 follows : — 
 
 " In the High Court of Justice, 1874. B. No. 
 
 Division. 
 
 Between A. B., plaintiff, 
 and 
 C. D., E. F., and G. H., defendants. 
 The answer of the above-named E. F. to the inteiTogatories for his examina- 
 tion by the above-named plaintiff. 
 
 In answer to the said interrogatories, I, the above-named E. F., make oath 
 and say as follows ; — " 
 
 * See Webb v. Bornford, 46 L. J., Ch. 288, per Hall, V.-C. 
 
CHA.P. v.] INSUFFICIENT ANSWERS TO INTERROGATORIES. 461 
 
 interrogator to apply to tlie court for an order under the rule just 
 cited, the disobedience of an order so obtained is a much more 
 •serious matter ; for the party failing to comply therewith is not 
 only liable to attachment, but he may, if a plaintiff, have his action 
 dismissed, and if a defendant, have his defence struck out.^ 
 
 § 531. It may be difficult to define, a priori, what amounts to an § 484 
 insufficient answer, but it appears that in general the answers to 
 interrogatories will be deemed insufficient, if they be not made 
 categorically to each specific question ; ^ and the same result will 
 follow, if, in addition to the information asked for, they contain in 
 excess, either irrelevant or otherwise objectionable matter.^ The 
 party, however, who complains of the insuflaciency must apply 
 promptly to the judge, for otherwise he will decline to interfere.* 
 The application should be made by summons in chambers, and not 
 by motion, and the particular answers objected to should be speci- 
 fied.^ It is also desirable, if not necessary, that at least in every 
 case involving doubt, the application should be supported by 
 affidavit, for the judges seem inclined to administer this branch of 
 their jurisdiction with considerable caution.^ The order for an oral 
 examination may be drawn up in general terms, and it is neither 
 necessary nor convenient to specify the particular points on which 
 the party is to be interrogated.'^ When the oral examination takes 
 place, it would seem on principle, that the party should be allowed 
 the assistance of counsel.^ When the answers to interrogatories 
 
 ' Paile 20 is as follows : — " If any party fails to comply witli auy order to 
 answer any interrogatories, or for discovery or inspection of documents he 
 shall be liable to attachment. He shall also, if a plaintiff, be Kable to have his 
 action dismissed for want of prosecution, and, if a defendant, to have his 
 defence, if any, struck out, and to be placed in the same position as if he had 
 not defended, and the party interrogating may apply to the court or a judee 
 for an order to that effect, and an order may be made accordingly.'' 
 
 2 Chester v. Wortley, 18 Com. B. 239. 
 
 3 Peyton v. Harting, 43 L. J., C. P. 10 ; 9 Law Eep., C. P. 9, S. C. 
 < Chester v. Wortley, 18 Com. B. 239. 
 
 5 Chesterfield v. Baythoi-pe Coll. Co. v. Black, 24 W. E., Ch. D., 783 per 
 V.-C. Hall. " '' 
 
 6 Swift V. Nun, 26 L. J., Ex. 365. 
 
 ? Peyton v. Harting, 43 L. J., C. P. 10 ; 9 Law Kep., C. P. 9, S. C 
 8 Id. 
 
462 WHAT QUESTIONS ALLOWABLE IN INTERROGATORIES. [PART II. 
 
 are formally, but, as far as can be seen, not intentionally, defective, 
 the proper course to pursue is to apply at chambers to have them 
 amended ; for the court is reluctant to order further answers to be ' 
 made, provided that the first be substantially sufficient.^ 
 
 § 532. In considering what questions may under these Eules be § 482a 
 asked on interrogatories, the courts should be guided, though not 
 fettered, by the rules and principles which the old Courts of Equity 
 used to act upon with respect to discovery.^ In an action of eject- 
 ment, therefore, a defendant will not be compelled to answer 
 interrogatories, where the answer would tend to show that he had 
 incurred a forfeiture of his lease by reason of his having underlet 
 the premises.^ Neither can a party, as a general rule, inquire into 
 facts which relate exclusively to the case of his adversary, although 
 he will occasionally be allowed to do so, when he makes a claim as 
 the representative of a deceased person, and the defence set up 
 consists of transactions said to have taken place with that person, 
 and to be exclusively within the knowledge of the defendant.* A 
 party may also ask any questions, the answers to which will advance 
 his own case, even though they may also disclose his opponent's 
 case.^ For instance, in an action on a policy of insurance on a 
 cargo, claiming for a total loss, if the statement of defence only 
 denies the policy, the interest, and the loading, the plaintiff cannot 
 be interrogated as to the several matters which these traverses will 
 require him to prove ; but if there be also a denial of the loss, 
 interrogatories may be tendered with respect to the amount of 
 damage ; and if the defendant were further to allege that the 
 sailing of the vessel had been unreasonably delayed, the plaintiff 
 might be questioned with respect to that fact.^ 
 
 ' Bender v. Zimmerman, 29 L. J., Ex. 244. 
 
 2 Pye V. Butterfield, 34 L. J., Q. B. 17 ; 5 B. & S. 829, S. C. ; Whateley v. 
 Crowter, 5 E. & B. 712, per Ld. Campljell. 
 
 ' Pye V. Butterfield, 34 L. J., Q. B. 17 ; 5 B. & S. 829, S. C. 
 
 ^ HiUs V. Wates, 9 Law Rep., C. P. 688 ; 43 L, J., C. P. 380, S. C. ; Hawkins v. 
 Carr, and Parsons v. Carr, 35 L. J., Q. B. 81 ; 1 Law Rep., Q. B. 89 ; and 6 
 B. & S. 995, S. C. 
 
 ^ Bayley v. Griffiths, 31 L. J., Ex. 477 ; 1 H. & C. 429, S. C. ; Goodman v. 
 Holroyd, 15 Com. B., N. S. 839 ; Stewart v. Smith, 2 Law Rep., C. P. 293. 
 
 « Zarifi V. Thornton, 26 L. J., Ex. 214. 
 
CHAP, v.] WHAT QUESTIONS ALLOWABLE IN INTBEROGATORIBS. 463 
 
 § 533. On the same ground, if an action for negligence be § 482a 
 brought against a surveyor or solicitor, the defendant may be asked 
 what steps he has taken to perform his duty ; ^ and if a valuer has 
 been employed to put a price on the goodwill of a business, he may, 
 for the purpose of establishing want of skill, be questioned as to 
 the basis of his valuation.^ So in an action for seduction, a defen- 
 dant may be interrogated with the view of obtaining from him an 
 admission of his immoral conduct, though no question can be asked 
 him with respect to his means or property.^ So, where the plaintiff 
 had brought an action for money had and received, and his right to 
 recover rested on the assumption that the defendant had, in selling 
 certain property to him, falsely professed to act as broker for a 
 third party, the Court allowed interrogatories to be delivered to the 
 defendant, requiring him to answer whether he had acted in the 
 transaction as principal or as agent, and, if as agent, to name his 
 principal.* 
 
 § 534. Where a party on being interrogated as to whether he § 482b 
 had in his possession any deeds relating to the lands in dispute, 
 answered on oath that he had, but that such deeds were exclusively 
 the evidences of his own title to the property, and did not show 
 any title in his opponent, the court held that he could not be com- 
 pelled to state the contents of the documents, or to describe them, 
 but that his oath as to their effect must be deemed conclusive.^ If 
 prima facie evidence of the loss of a deed be made out by affidavit, 
 the party supposed to have executed the instrument may be in- 
 terrogated de bene esse as to its contents." Although interroga- 
 tories as to the means by which a defendant proposes to establish 
 his title to an hereditament are not admissible, those seeking only 
 to ascertain the character of his title, and the quality of his pos- 
 session, will, it is said, be allowed.''' Again, a plaintiff in ejectment 
 
 1 Whateley v. Crowter, 5 E. & B. 709. 
 
 2 Turner v. Goulden, 9 Law Eep., C. P. 57 ; 43 L. J., C. P. 60, S. 0. 
 
 3 Hoclsoll V. Taylor, 43 L. J., Q. B. 14 ; 9 Law Eep., Q. B. 79, S. C. 
 
 " Thol V. Leash, 10 Ex. R. 704. See, also, BligM v. Goodliffe, 18 Com. B , 
 N. S. 757. 
 5 Adams v. Lloyd, 3 H. & N. 351. 
 
 ^ Wolverhampton New "Waterw. Co. ». Hawksford, 5 Com. B., N. S. 703. 
 ' Towne v. Cocks, 43 L. J., Ex. 41 ; 9 Law Eep., Ex. 45, S. C. 
 
464 WHAT QUESTIONS NOT ALLOWABLE IN INTERROGATORIES. [PART II. 
 
 may interrogate the defendant as to whether he is not really defend- 
 ing the action on hehalf of a third person ; for an affirmative 
 answer to such a question would go far towards making the de- 
 clarations of such third person admissible in evidence.^ 
 
 § 535. It may be laid down as a general rule that no party will § 482 
 be suffered to expose his adversary to fishing interrogatories, or to 
 require him to declare on oath how he intends to shape his case.^ 
 For example, in an action of trover by the trustee of a bankrupt, 
 the plaintiff could not be compelled to answer, interrogatories for 
 the purpose of discovering what case he intends to set up at the 
 trial.^ The defendant, too, in an action of slander will not, — 
 except under very special circumstances, precluding redress by 
 other means,* — be forced to admit, in answer to interrogatories, the 
 precise words he uttered, and when, where, and to whom he spoke 
 them.^ Neither can the defendant, in an action for negligence, 
 interrogate the plaintiff as to how the accident happened, or what 
 was the extent of the injury, or what was the amount of the 
 medical charges.^ Still less will a judge, except under very special 
 circumstances,'^ permit a defendant, who admits a breach of con- 
 tract, to interrogate the plaintiff respecting the damage he has 
 sustained, with the view of paying money into court.^ Nor, as it 
 
 ' SketcUey v. Conolly, 2 New E. 23, per Q. B. 
 
 2 Edwards v. Wakefield, 6 E. & B. 462 ; Moor v. Roberts, 26 L. J., C. P. 
 246 ; 2 Com. B., N. S. 671, S. C. 
 
 3 Edwards i). "Wakefield, 6 E. & B. 462. See, also, Einney v. Forward, 35 
 L. J., Ex. 42 ; 1 Law Rep., Ex. 6 ; and 4 H. & C. 33, S. C. But see Derby 
 Bk. .;. Limisden, 5 Law Rep., C. P. 107 ; 39 L. J., C. P. 72, S. C. 
 
 " Atkinson v. Fosbroke, 35 L. J., Q. B. 182 ; 1 Law Rep., Q. B. 628 ; 7 B. 
 & S. 618, S. C. ; Greenfield v. Reay, 45 L. J., Q. B. 81 ; 10 Law Rep., Q. B. 
 217, S. C. See O'ConneU v. Barry, I. R. 2 C. L. 648. Sed qu. 
 
 6 Stem V. Sevastopulo, 2 New R. 329 ; 32 L. J., C. P. 268 ; 14 Com. B., 
 N. S. 737, S. C. ; Tupling v. Ward, 30 L. J., Ex. 222 ; 6 H. & N. 749, S. C. ; 
 Edmunds v. Greenwood, 4 Law Rep., C. P. 70 ; 38 L. J., C. P. 115, S. C. See 
 Hill V. CampbeH, 44 L. J., C. P. 97 ; 10 Law Rep., C. P. 222, S. C. ; Fitz- 
 gibbon V. Greer, I. R., 9 C. L. 294. But see, also, M'Loughlin v. Dwyer, I. R., 
 9 C. L. 170. 
 
 " Peppiatt V. Smith, 3 H. & C. 129 ; 33 L. J., Ex. 239, S. C. But see 
 Wright V. Goodlake, 34 L. J., Ex. 82 ; 3 H. & C. 540, S. C. 
 
 ' See Home v. Hough, 43 L. J., C. P. 70 ; 9 Law Rep., C. P. 135, S. C. 
 
 8 Jourdain v. Palmer, 35 L. J., Ex. 69 ; 4 H. & C. 171 ; and 1 Law Rep., 
 
CHAP, v.] PRELIMINARY DISCOVERY ENFORCED IN HIGH COURT. 465 
 
 seems, will interrogatories be allowed, wlien the interrogator has 
 ample means of obtaining from his own agents the information 
 which he professes to seek from his opponent,^ or when the object 
 is to contradict a written instrument,^ or to gain some tricky ad- 
 vantage not dependent on real information, or to heap up needless 
 costs.^ Moreover, it has been established as a general rule, that 
 the party interrogated is not bound to disclose any information, 
 which he may have obtained for the purposes of the litigation in 
 which he is engaged.* 
 
 § 536. It may further be laid down with respect to interrogatories, § 482d 
 first, that where a party interrogated under Eule 1 of Order XXXI. 
 admits his possession of documents, he cannot be attached for 
 refusing to set forth their contents, but his opponent must apply for 
 an order to inspect them, under Rule 14 of the same Order ; ' 
 secondly, that interrogatories as to documents are not limited to 
 such as are in the possession or power of the party interrogated, 
 but extend to all documents, "relating to the matter in question," 
 which he has ever had in his possession ; ® thirdly, that a plaintiff 
 may be ordered to answer interrogatories, though he be a foreigner 
 resident abroad;'' fourthly, that where an application for leave 
 to deliver interrogatories is necessary,^ such application, — pro- 
 vided it be made bona fide,^ and be supported by an affidavit 
 disclosing special circumstances,^" — cannot be resisted on an affi- 
 
 Ex. 102, S. 0., commenting on Wright v. Goodlake, 34 L. J., Ex. 82 ; 3 H. 
 & C. 540, S. C. See Dobson v. Richardson, 37 L. J., Q. B. 261 ; 3 Law Rep., 
 Q. B. 778 ; and 9 B. & S. 516, S. C. 
 
 1 Bird V. Malzy, 1 Com. B., N. S. 308. But see Eew v. Hutchins, 10 Com. 
 B., N. S. 837, per Erie, C. J. 
 
 2 Moor V. Roberts, 26 L. J., C. P. 246 ; 2 Com. B., N. S. 671, S. C. 
 
 3 Beohervaise v. Gt. West. Ry. Co., 6 Law Rep., C. P. 36 ; 40 L. J., C. P. 
 8, S. C. 
 
 " Phillips V. Routh, 7 Law Rep., C. P. 287 ; 41 L. J., C. P. 111. 
 
 5 See Scott v. Zygomala, 4 E. & B. 483 ; Herschfield v. Clarke, 11 Ex. R. 
 712 ; and post, § 1787. « Lethhridge v. Cronk, 44 L. J., C. P. 381. 
 
 7 Pbhl V. Young, 25 L. J., Q. B. 23. ^ ggg ^^^g^ ^ ggg. 
 
 « Baker v. Lane, 34 L. J., Ex. 57 ; 3 H. & C. 544, S. C, as explained away 
 in Bickford v. D'Aroy, 35 L. J., Ex. 202 ; 4 H. & C. 540, S. C. 
 
 >» VUleboisnet v. Tobin, 38 L. J., C. P. 146 ; 4 Law Rep., C. P. 184, S. C. ; 
 Inman v, Jenkins, 39 L. J., C. P. 258 ; 5 Law Rep., C. P., 738, S. C. 
 
 H H 
 
466 AFFIDAVIT IN SUPPORT OF PEELIMINARY DISCOVERY. [PART II. 
 
 davit that the questions, if answered, may tend to criminate the 
 party interrogated,^ or may expose him to a forfeiture of his estate ; 
 fifthly, that when a party submits to answer interrogatories he must 
 answer fully;* and lastly, that the rule under discussion extends 
 equally to real and to nominal parties.* 
 
 § 537. As it is still necessary in certain events^ to obtain the 
 leave of the court or a judge before delivering interrogatories, it may 
 be mentioned, as a guide for the exercise of judicial discretion, that, 
 under the old law,^ the party proposing to interrogate, or his 
 solicitor or agent, was obliged to file an affidavit, stating his belief 
 that the party, whether plaintiff or defendant, would derive material 
 benefit in the cause from the discovery sought, that there was a good 
 cause of action or defence on the merits, and, if the applicant was a 
 defendant, that the discovery was not sought for the purpose of 
 delay J 
 
 § 538. As answers to interrogatories under the Eules of 1875, — 
 like those which owed their existence to the Common Law Procedure 
 Act of 1854, — were intended as substitutes for the old proceedings 
 in Chancery to compel discovery, they are equally admissible in evi- 
 dence with those proceedings. The party, at whose instance they 
 are taken, is empowered to use them, either as primary evidence of 
 admissions made by his opponent, or as furnishing matter for cross- 
 
 1 Osborn v. London Dock Co., 10 Ex. R. 698, noticed post, § 1466 ; M'Fadzen 
 v. May. & Corp. of Liverpool, 3 Law Eep., Ex. 279 ; 37 L. J., Ex. 193, S. C. ; 
 Bartlett v. Lewis, 31 L. J., C. P. 230 ; 12 Com. B., N. S. 249, S. 0. ; Good- 
 man V. Holroyd, 15 Com. B., N. S. 839 ; Simpson v. Carter, 30 L. J., Ex. 224, 
 in n. 7. But see cases cited ante, p. 464, n. 5, as to actions for defamation. 
 
 2 Chester v. Wortley, 17 Com. B. 410 ; Bickford v. D'Aicy, 35 L. J., Ex. 
 202 ; 1 Law Eep., Ex. 354 ; and 4 H. & C. 534, S. C. See Pye v. Butterfield, 
 34 L. J., Q. B. 17, cited ante, § 532. 
 
 » Elmer v. Creasy, 9 Law Rep., Ch. 69 ; Gt. West. ColL Co. v. Tucker, 9 
 Law Rep., Ch. 376, per Ct. of App. 
 
 ■* M'Kewan v. Rolt, 4 H. & N. 738 ; Mason v. Wythe, 3 Post. & Fin. 153, 
 per Keating, J. 
 
 ^ See ante, § 522. « 17 & 18 V., c. 125, § 52. 
 
 ' See May v. Hawkins, 11 Ex. R. 210 ; Oxlade v. N. East. Ry. Co., 12 Com. 
 B., N. S. 350 ; Kingsford v. Gt West. Ry. Co., 16 Com. B., N. S. 761 ; 33 
 L. J., C. P. 307, S. C. 
 
CHAP, v.] INTEREOGATOEIBS IN COUNTY COURTS. 467 
 
 examination, and, if necessary, for contradiction, should his opponent 
 come forward as a witness on his own behalf, and make statements 
 inconsistent with what he may have previously sworn. 
 
 § 539. In the County Courts the rules relating to interrogatories 
 are as follows : — Order XIII. of the Eules of 1875 provides, by E. 6, 
 that " where a party desires to interrogate any party he shall apply 
 to the registrar for leave to deliver interrogatories, and upon making 
 such application he shall file an affidavit,^ made by himself only, or 
 by himself and his solicitor or agent, if any, or by leave of the 
 registrar by his solicitor or agent only, stating that the deponent 
 believes that the party proposing to interrogate wiU derive material 
 benefit in the action from the discovery which he seeks, and that 
 there is good cause of action or defence upon the merits. And 
 upon such application the registrar shall make an order, according 
 to the form^ in the schedule, that the applicant may, within a time 
 to be named in such order, deliver to the party to be interrogated 
 interrogatories in writing upon any matter as to which the appHcant 
 
 ' Form 57 is as follows : — 
 
 " We, A. B., of tlie above-named plaintiff [or defendant], 
 
 and L. M. of , solicitor in this cause for the said plaintiff [or 
 
 defendant], make oath, and say, first, — 
 
 And I the said A. B. for myself say, — 
 
 1. That I believe that I shall derive material benefit in this cause from the 
 discovery which I seek by the interrogatories which I require to be delivered 
 herein. 
 
 2. That I believe that I have a good cause of [or defence to this] action on 
 the merits. 
 
 And I the said L. M. say, — 
 
 3. That the plaintiff [or defendant] will derive material benefit by the dis- 
 covery which he seeks by interrogatories. 
 
 4. That I believe that the plaintiff [or defendant] has a good cause of [or 
 defence to this] action on the merits." 
 
 ' Form 285 of the Cy. Ct. Kules, 1876, is as follows :— 
 " Upon reading the afiidavit of I do order that the 
 
 be at liberty to deliver to the or his solicitor, on or before the 
 
 day of 18 interrogatories in writing upon the matters 
 
 as to which discovery is sought in this action, and that the do, 
 
 on or before the day of 18 , answer the questions in 
 
 writing by affidavit, and return such answers to me for filing. 
 Dated this day of 
 
 Registrar or Judge." 
 
 H H 2 
 
468 INTERROGATORIES IN COUNTY COURTS. [PART II. 
 
 seeks discovery, and shall in such order require the party interro- 
 gated to answer the questions in writing by affidavit, and file such 
 answers within such time to be appointed by the registrar, as shall 
 enable the party maldng the application to use the answers so re- 
 turned as evidence at the trial." 
 
 § 540. Eule 7 provides, that "where a party served with the 
 order shall object to answer the interrogatories, he shall file an 
 affidavit stating his grounds for objecting, and that he will be pre- 
 pared to show cause to the court ^.t the return-day against his being 
 required to answer them, but where it is only some of the interro- 
 gatories he objects to answer, he may include in his affidavit both 
 his replies and his objections." 
 
 § 541. Independent of these rules, the County Court, by virtue of 
 § 53 of the Common Law Procedure Act, 1854,^ may, in case any 
 party omits to answer sufficiently any written interrogatories, direct 
 him to be orally examined either before itself or the registrar, as 
 to such points as it may direct; and it may also command the 
 attendance of the party for the purposes of the examination, and 
 the production of documents, and may impose such terms as to 
 costs or otherwise as shall seem just. In the event of the registrar 
 being directed to take the examination, either he or his clerk must 
 transcribe the answers given by the party, he must himself read 
 over the answers so transcribed, the party must then sign his name 
 at the foot thereof, and finally the document must be filed by the 
 registrar as the deposition of the party.' 
 
 § 542. Eule 8 of Order XIII. further provides, that " where the 
 party required to answer interrogatories shall successfully show 
 cause against an order requiring him to answer them, the judge may 
 direct the action to proceed, or to be adjourned if he thinks fit and 
 upon terms as to costs ; but if the party objecting shall not show 
 sufficient cause for his objection, the judge may order the interroga- 
 tories to be then and there answered viva voce in Court, or may 
 
 ' 17 & 18 v., c. 125, § 53, extended to the Oy. Cts. by ord. of Council 18 
 Nov. 1867. ' See W. N. of 1867, p. 631. . 
 2 Ord. xiv. of Cy. Ct. Rules, 1875, r. 7. 
 
CHAP: v.] ACTIONS FOB PEEPETUATING TESTIMONY, 469 
 
 adjourn the action, and make an order for the answering of the 
 interrogatories by such time, and for the payment of such costs as 
 may haye been incurred through the delay, as he may think fit." 
 
 § 543. Before courts of law were empowered to issue commis- § 488 
 sions for themselves, it was often necessary to institute proceedings 
 in Chancery as auxiliary to an action at law ; and even now, it is 
 occasionally expedient to do so with respect to matters which can- 
 not immediately be investigated in a Common Law Division of the 
 High Court, when the testimony of a material witness is likely to 
 be lost by his death or departure from the realm. In such cases as 
 these, recourse is had to what is called " an action for perpetuating 
 testimony," Courts of Equity having for centuries enjoyed the right 
 of entertaining suits for the purpose of preserving evidence in per- 
 petuam rei memoriam.^ As the object of this jurisdiction is to 
 prevent litigation by preserving evidence, the Chancery Division 
 will seldom decline to exercise it ; ^ provided only, — and this is a 
 material proviso, — that the evidence sought to be obtained is re- 
 quired to be used, not in proceedings already pending, but in some 
 future suit.^ 
 
 § 544. The Legislature, considering that the benefits derivable § 489 
 from this mode of proceeding might with advantage be extended, 
 enacted, in the year 1842,* that "any person who would, under the 
 circumstances alleged by him to exist, become entitled, upon the 
 happening of any future event, to any honour, title, dignity, or 
 office, or to any estate or interest in any property real or personal, 
 the right or claim to which cannot by him be brought to trial 
 before the happening of such event, shall be entitled to file a bill 
 in the High Court of Chancery [now, to commence an action in the 
 Chancery Division of the High Court] to perpetuate any testimony 
 which may be material for establishing such claim or right." In 
 
 1 Mitf. PI. 62 ; 1 Smith's Ch. Pr. 765 ; Gresl. Ev. 129, et seq. 
 
 2 Mitf. PI. 172, 173. 
 
 3 Andrews v. Brooke, 43 L. J., Pr. & Mat. 39 ; 3 Law Kep., P. & D. 181, 
 S. C, nom. Andrew v. Brooke. 
 
 * 5 & 6 v., c. 69. Proceedings under this Act should he jealously watched, 
 Camphell v. E. of Dalliousie, 1 Law Eep., H. L. So. 462. 
 
470 ACTIONS FOR PERPETUATING TESTIMONY. [PART II. 
 
 1858, Parliament again iaterposed ; and by " The Legitimacy 
 Declaration Act"^ of that year, empowered the Court for Divorce 
 and Matrimonial Causes [now the Divorce Division of the High 
 Court] , on the petition of certain persons specially interested, to 
 make decrees declaratory of the legitimacy or illegitimacy of any 
 such petitioner, or of the validity or invalidity of the marriage of his 
 parents, or grandparents, or of his own marriage, or of his right to 
 be deemed a natural-born subject. 
 
 § 645. In entertaining suits to perpetuate testimony, the court § 490 
 will compel the defendant to appear and answer,^ provided he be 
 shown to have an interest in contesting the plaintiff's claim in the 
 subject of the proposed evidence ;^ and the cause being brought to 
 issue, the veitnesses will, it is presumed, — though the matter is left 
 in doubt by the Judicature Acts, — be examined orally before one of 
 the examiners of the court, not, iadeed, in accordance with the 
 practice established for ordinary suits, but according to the practice 
 existing prior to the 5th February, 1861,* that is, they will be 
 examined " in the presence of the parties, their counsel, solicitors, 
 or agents, ; " ^ they will be subject to cross-examination and re- 
 examination ; and the whole proceeding will be conducted in the 
 mode in use in the old courts of common law, with respect to a 
 witness about to go abroad.^ The depositions will then be taken 
 down, signed, authenticated, and transmitted to the Eecord Office, 
 in the same manner as in other cases,'' though, no relief being 
 prayed, the suit is never brought to a hearing.^ The court will 
 not, in general, permit the publication of the depositions, except 
 in support of an action, nor then, unless it be proved that the 
 witnesses are dead, or otherwise incapable of attending to be ex- 
 
 ' 21 & 22 v., c. 93, §§ 1, 2 ; extended to Ireland by 31 & 32 V., c. 20, Ir. 
 2 See Ellice v. Eoupell, 2 New R. 3, per Romilly, M. R. ; id. 150, S. C. ; 
 and 32 Beav. 299, 308, & 318, on other points. 3 Mitf. PI. 63. 
 
 * See Gen. Ord. rr. vi., xix. See, also, 30 & 31 V., c. 44, § 92, Ir. 
 
 * Gen. Ord. r. xvi. See, also, 30 & 31 V., c. 44, § 98, Ir., which specially 
 enacts, that, in Irish suits to perpetuate testimony, " evidence shall continue 
 to be taken according to the now existing practice in cases of biUs filed to 
 perpetuate testimony." « 15 & 16 V., c. 86, § 31 
 
 M5 & 16 v., c. 86, §§ 32, 34. s i Smith's Oh. Pr. T68. 
 
CHAP. V.]' VIVA VOCE TESTIMONY, HOW PEOVED. 471 
 
 amined.^ So, if a witness in immiaent danger of death has 
 been examined de bene esse, under the authority of the ecclesi- 
 astical courts, the deposition cannot be read, unless proof be 
 given that the witness has since died, or is too ill to be again 
 examined at the hearing of the cause.^ 
 
 § 546. It was stated in the last chapter, that if a witness, besides § 491 
 being examined on interrogatories, should testify at the trial of a 
 cause, either party, on any subsequent trial respecting the same 
 subject, provided the witness be then incapable of attending, may 
 rely, at his option, either on the deposition, or on the previous viva 
 voce testimony ; ^ and it may be here observed,* that what such 
 witness has orally testified may be proved, either by any person, 
 who will swear from his own memory,^ or by notes taken at the 
 time by any person, who will swear to their accuracy,^ or possibly, 
 from the necessity of the case, by the judge's notes.'' This last 
 mode of proof, however, is open to very grave, if not insuperable, 
 objections, as such notes form no part of the record, nor is it the 
 duty of the judge to take them, nor have they the sanction of his 
 oath to their accuracy or completeness.^ How far it may be neces- 
 sary to prove the precise words spoken, does not clearly appear. 
 Lord Kenyon mentions a case, where the evidence of a witness was 
 rejected, " as he could not undertake to give the words, but merely 
 to swear to the effect of them ;"* and the same precision has, on 
 several occasions, been deemed requisite in America ; ^*' but on the 
 
 ' 1 Smith's Ck Pr. 769 ; Morrison v. Arnold, 19 Ves. 670. See Att.-Gen. v. 
 Ray, 2 Hare, 518. ^ Wequelin v. Wequelin, 2 Curt. 263. 
 
 3 Tod V. E. of Winchelsea, 3 C. & P. 387, per Ld. Tenterden, ante, § 400. 
 
 * Gr. Ev. § 166, in part. 
 
 ^ Strutt V. Bovingdon, 5 Esp. 56, per Ld. EUenborough ; May. of Doncaster 
 D. Day, 3 Taunt. 262 ; R. v. JoUifFe, 4 T. R. 290, per Ld. Kenyon. 
 " May. of Doncaster v. Day, 3 Taunt. 262. 
 ' Id. 262, per Sir J. Mansfield. 
 
 * Conradi v. Conradi, 1 Law Rep., P. & D. 514, per Wilde, J. 0. ; Miles v. 
 O'Hara, 4 Binn. 108 ; Foster v. Shaw, 7 Serg. & R. 156 ; Ex parte Learmoutli, 
 6 Madd. 113. 
 
 ' R. V. Jolliffe, 4 T. R. 290. 
 
 » U. S. V. Wood, 3 Wash. 440 ; Foster v. Shaw, 7 Serg. & R. 163 ; Wilbur 
 V. Selden, 6 Cowen, 165 ; Com. v. Richards, 18 Pick. 434. 
 
472 VIVA VOCE TESTIMONY, HOW PROVED. [PAET II. 
 
 other hand, it has been urged, with much force,^ that to insist upon 
 strict accuracy, goes, in effect, to exclude this sort of evidence alto- 
 gether, or to admit it only in eases, where the particularity and 
 minuteness of the witness's narrative, and the exactness with which 
 he undertakes to repeat every word pf the deceased's testimony, 
 ought to excite just doubts of his own honesty, and of the truth of 
 his evidence.^ 
 
 § 547. Perhaps, therefore, on occasions when nothing of import- § 492 
 ance turns on the precise expressions used, it will be considered 
 suf&cient if the witness can speak with certainty to the substance 
 of what was sworn on the former trial. Even on indictments for 
 perjury it is not necessary to state the entire examination, but it 
 will suf&ce to narrate, with accuracy, the whole of that portion of 
 the evidence which relates to the point on which the perjury is 
 assigned, provided the witness can further swear that he heard the 
 whole examination, and that nothing was subsequently said to 
 qualify the original statement.^ Unless he can 'do this his evidence 
 cannot be received ; * and as the same rule must apply to the proof 
 of the testimony of a deceased witness, it foUows that if the person 
 who heard him give his evidence can only state what was said on 
 the examination in chief, without also giving the substance of his 
 answers in cross-examination, or, at least, positively swearing that 
 nothing 'escaped the witness which could vary or quahfy the first 
 statement, his evidence will be inadmissible.^ 
 
 § 548. When depositions are tendered in evidence as secondary § 493 
 proof of oral testimony, they are, of course, open to all the objec- 
 tions which might have been raised, had the witness himseK been 
 personally present at the trial. Leading and other illegal questions 
 are therefore constantly suppressed, together with the answers to 
 them ; and this, too, whether the testimony has been taken viva 
 
 1 Gr. Ev. § 165. 
 
 2 See Cornell v. Green, 10 Serg. & R. 14, 16 ; Miles v. O'Hara, 4 Binn. 108 ; 
 Caton V. Lenox, 5 Rand. 31, 36 ; Jackson v. Bailey, 2 Johns. IV. 
 
 ^ R. V. Rowley, 1 Moo. C. C. Ill ; R. d. Dowlin, Pea. R. 170. 
 
 ' R. V. Jones, Pea. R. 38. ^ Woliv. Wyeth, 11 Serg. & R. 149. 
 
CHAP, v.] DEPOSITIONS OPEN TO WHAT OBJECTIONS. 473- 
 
 voce or by written interrogatories.-^ But a party cannot repudiate 
 an answer which has been given to an illegal question put on his own 
 side ; ^ and in all cases where objections are taken to interrogatories 
 on the ground of their being couched in a leading form, the judge 
 is vested with a wide discretion as to how much, if any, of the de- 
 positions returned he will in consequence strike out.^ Where a 
 witness, on being examined upon interrogatories in a foreign country, 
 stated in one of his answers the contents of a letter which was not 
 produced, that pwrt^ of the deposition was suppressed at the trial, 
 though it was urged, that as the witness was beyond the jurisdiction 
 of the court, no means existed for compelling the production of the 
 letter.^ "We have no power," said Chief Justice Tindal, "to 
 compel the witness to give any evidence at all ; but if he does give 
 an answer, that answer must be taken in relation to the rules of our 
 law on the subject of evidence."^ 
 
 § 549. In another case, a witness, with the view of showing that § 494 
 the defendants had used due diligence to obtain the answer of a 
 party to a bUl in Chancery, stated on interrogatories, that, as their 
 agent, he had written to the party ; and he then went on to describe 
 the contents of the letter and of the reply, though he produced 
 neither. At a subsequent trial this deposition was tendered iu 
 evidence, and the court, while rejecting the answers which stated 
 what the letters contained, admitted that part of the deposition 
 which proved that the witness had written a letter to the party in 
 question; for had the witness been himself present in court he 
 might have been examined thus far, in order to prove that the de- 
 fendants through him had used some exertion to procure the party's 
 answer.'' Again, depositions have been admitted, though the wit- 
 ness on his examination had refreshed his memory with some papers, 
 
 ' Hutchinson v. Bernard, 2 M. & Rob. 1. 2 i(j_ 
 
 3 Small V. Nairne, 13 Q. B. 840. 
 
 * In Wheeler ■;;. Atkins, 5 Esp. 246, Ld. EUenhorough is reported to have 
 held, under similar circumstances, that either the letter must be produced, or 
 the whole interrogatory abandoned. But this case is clearly not law. See per 
 Ld. Denman, in Small v. Nairne, 13 Q. B. 844. 
 
 5 SteinkeUer v. Newton, 9 C. & P. 319, per Tindal, C. J. _« Id. 
 
 ? Tufton V. Whitmore, 12 A. & E. 370. 
 
474 NO DEGEEES IN SECONDARY EVIDENCE. [PAET 11. 
 
 which he alleged were partly in his handwriting and partly not, but 
 which he refused to allow the commissioners to see upon the ground 
 that they were private memoranda ; for, as it was a matter for the 
 discretion of the commissioners, whether they would permit the 
 witness to refer to papers during his examination, the learned judge, 
 at the trial, presumed that they had exercised their discretion with 
 propriety.^ 
 
 § 550. Another general rule, which governs the production of § 495 
 secondary evidence, whether of documents or of oral testimony, is, 
 that the law recognises no degrees in the various kinds of such evi- 
 dence.^ If, therefore, a deed he lost, or be in the hands of the 
 adversary, who after due notice refuses to produce it, the party 
 seeking to give evidence of its contents may at once have recourse 
 to parol testimony, though it be proved that he has in his posses- 
 sion a counterpart, a copy, or an abstract of the document.^ So, if 
 it be necessary to prove the former testimony of a deceased witness, 
 any person who heard him examined may be called, though a clerk 
 or a shorthand- writer may have taken down his evidence word for 
 word.* 
 
 § 551. This rule, of course, does not mean that the mere memory § 495 
 of a witness, who has read a deed, is entitled to equal weight with 
 an authenticated copy of the same instrument ; for in many cases 
 a jury would properly regard such evidence with distrust, and if it 
 should appear that more satisfactory proof was intentionally with- 
 held, their distrust might amount to absolute incredulity ; but the 
 
 1 Steinkeller v. Newton, 2 M. & Rob. 372, per Tindal, 0. J. 
 
 2 Doe V. Boss, 7 M. & W. 102 ; 8 Dowl. 389, S. C. ; Hall v. BaU, 3 M. & Gr. 
 242 ; 3 Scott, N. R. 577, S. 0. ; Brown v. Woodman, 6 C. & P. 206, per Parke, 
 B. ; Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. 
 
 •* Cases in last note ; also, Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154 ; 
 45 L. J., P. D. & A. 1 & 49, S. 0. ; Brown v. Brown, 27 L. J., Q. B. 173 ; 
 8 E. & B. 876, S. C. ; In re Brown, 27 L. J., Pr. & Mat. 20 ; 1 Swab. & Trist. 
 32, S. C. ; and In re Gardner, 27 L. J., Pr. & Mat. 55 ; 1 Swab. & Trist. 109, 
 S. C. ; in which cases oral evidence of the contents of a lost will was admitted. 
 See Johnson v. Lyford, 37 L. J., Pr. & Mat. 65 ; 1 Law Rep., P. & D. 546, 
 S. G. ; also, ante, § 436. 
 
 ■* Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. See R. v. Chris- 
 topher, 4 Cox, 96 ; 1 Den. 536 ; 2 C. & Kir. 994, S. C. 
 
CHAP, v.] COPIES OP PUBLIC DOCUMENTS. 475 
 
 rule simply applies to the legal admissibility of the evidence, and 
 is founded on the inconvenience that could not fail to arise in the 
 administration of justice, if the degrees of secondary evidence vs-ere 
 strictly marshalled according to their intrinsic weight, and if parties 
 were consequently driven, before they could have recourse to parol 
 testimony, to account for all secondary evidence of superior value, 
 the very existence of which they might have no means of ascer- 
 taining. 
 
 § 552. In considering the practical effect of this rule, care must § ^^ 
 be taken to exclude from its operation those cases in which the law 
 has expressly substituted, in the place of primary proof, some par- 
 ticular species of secondary evidence. Thus, for instance, where 
 the contents of public records and documents are to be proved, ex- 
 amined copies are, on grounds of general convenience, considered 
 admissible ; ^ and such copies, though in strictness secondary evi- 
 dence, partake so much of the character of primary proof, that so 
 long as it is possible to produce them, other inferior degrees of 
 secondary evidence cannot be received.^ Parol testimony, therefore, 
 can only be admitted, on proof, first, that the public record or 
 document has itself been lost or destroyed, for otherwise an ex- 
 amined copy might be obtained ; and, secondly, that such copy, if 
 any has been taken, is no longer under the control of the party re- 
 lying upon less satisfactory evidence.* In like manner, if a witness 
 has been examined before a magistrate or coroner under such cir- 
 cumstances, that these officers respectively have, in pursuance of their 
 duty, taken down his statement in writing, parol evidence of his 
 examination cannot be given in the event of his death, so long as 
 the deposition itself can be produced ; for the law having constituted 
 the deposition as the authentic medium of proof, will not permit 
 the admission of any inferior species of evidence. If, indeed, it 
 can be shown that the deposition is lost or destroyed, or is in the 
 possession of the opposite party, who after notice refuses to produce 
 
 ' Ante, § 439, and post, §§ 1545, 1598, et seq. 
 
 2 Doe 1). Eoss, 7 M. & W. 106, per Ld. Abinger. 
 
 3 Thurston v. Slatford, 1 Salt. 214, 285 ; Maodougal v. Young, Ey. & M. 
 392 ; 1 Ventr. 257. 
 
476 COPIES OF COPIES INADMISSIBLE. [PlET II. 
 
 it, the statement of a witness who was present at the examination 
 will then be admissible, as well as a copy of the deposition.^ 
 
 § 553. The rule which includes in one legal category every § 497 
 species of secondary proof, by no means opens a door to all sorts of 
 evidence, however loose, which a party chooses to tender.^ The 
 contents, therefore, of a written instrument which is lost cannot 
 be proved by means of a copy, until it be shown that such copy is 
 accurate ; and if, as frequently happens, a party to the suit has 
 himself made a copy of a letter which he has sent to his adversary, 
 this copy, should the adversary refuse to produce the letter after 
 notice, cannot be read in evidence, unless the party who made it can 
 swear to its accuracy, or some other witness can be called who has 
 compared it with the original.^ Neither can a document be proved 
 by the production of the copy of a copy,* for such evidence would 
 be rejected on the broad ground which renders hearsay evidence 
 inadmissible. The opponent would have a right to object that, 
 assuming the second copy to correspond exactly with the first, the 
 first must be produced and proved to have been compared with the 
 original, or otherwise there would be nothing to show that the 
 second copy and the original were identical. Such evidence would 
 in fact be but the shadow of a shade. 
 
 1 See 2 Euss. C. & M. 895 ; E. v. Wylde, 6 0. & P. 380. 
 
 2 Everingham v. Eoundell, 2 M. & Rob. 138, per Alderson, B. 
 
 ^ Fisier v. Samuda, 1 Camp. 193, per Ld. EUenborough. But see Waldy v. 
 Gray, 20 Law Eep., Eq. 238, 250, per Bacon, V.-C. 
 
 ■* Liebman ■». Pooley, 1 Stark. E. 167, per Ld. Ellenborough. Everingham 
 V. EoundeU, 2 M. & Eob. 138. 
 
CHAP. VI.] BVIDEHCE ADDRESSED TO THE SBKSES. 477 
 
 CHAPTER VI. 
 
 EVIDENCE ADDRESSED TO THE SENSES. 
 
 . § 554. The first degree of evidence, and that which, though § 498 
 open to error and misconception, is obviously most satisfactory to 
 the mind, is afforded by our own senses.^ " Believe half what you 
 see, and a twentieth part of what you hear," is a maxim, which 
 reflects severely upon human intelligence and veracity, but which, 
 nevertheless, is founded in the main upon the experience of life, 
 and marks the vast distinction that obtains between a knowledge 
 of facts derived from actual perception, and the belief of the 
 existence of facts resting on the information of others. In 
 judicial proceedings, the judge or jury can seldom act entirely 
 upon evidence of this description, though, when pregnancy is 
 pleaded, a jury of matrons is empowered to decide the issue upon 
 examination of the person of the prisoner ; ^ but in a vast number 
 of instances, especially where the fact in dispute is sought to be 
 proved by circumstantial evidence, the verdict will be found to 
 rest materially upon matter submitted to the ocular inspection of 
 the jury. Thus, if a prisoner be indicted for stealing corn, and 
 one of the circumstances tending to establish his guilt be his 
 possession of wheat apparently resembling a quantity from which 
 a portion has been recently taken, it is evident that a comparison 
 by the jury of the wheat found upon the prisoner with a sample 
 of that belonging to the prosecutor, will be more satisfactory than 
 if its identity be sworn to by a witness, who, out of court, has 
 examined the two lots. It is true that the jury may come to an 
 
 ' " Segnius irritant aminos demissa per anrem, 
 Quam quae sunt oculis sutjecta fidelibus, et quae 
 Ipse sibi tradit spectator." — HoR. Ars Poet. 1. 180. 
 2 Baynton's case, 14 How. St. Tr. 630, 631, 634 ; 1 Hale, 368 ; 2 id. 413 ; 
 K. V. Wycherley, 8 C. & P. 262. By this last case it appears, that the matrons 
 may, in addition to their personal inspection, hear the evidence of a surgeon 
 but in that event he must be examined as a witness in open court. See Lady 
 Essex's case, 2 How. St. Tr. 802. 
 
478 PEODUCTION OF AETICLES FOR IDENTIFICATION. [PART II. 
 
 erroneous conclusion in such a case ; for either the witnesses, 
 who state that the two parcels of wheat produced were respectively 
 taken from the prisoner and the prosecutor, may intentionally or 
 accidentally assert what is not true, or the jurors themselves may 
 be mistaken in assuming the identity of the grain. Still, both 
 these sources of error will equally exist, in the event of a witness 
 being called to state the result of his previous examination of the 
 two samples. And this last course will be further open to the 
 objection, that such a witness may with little danger tell a fabri- 
 cated story, since examination as to mere matters of opinion is 
 almost necessarily inconclusive, and consequently the jury run the 
 additional risk of being misled by his fraudulent testimony. 
 
 § 565. These observations apply to all cases, in which the guilt § 499 
 or innocence of a prisoner depends upon the identity or comparison 
 of two articles found in different places ; as, for example, the 
 wadding of a pistol with portions of a torn letter found on the 
 person of the accused, or the fractured bone of a sheep with 
 mutton found in his house, or fragments of dress with his rent 
 garment, or damaged property with the instrument by which the 
 damage is supposed to have been effected. In all these, and the 
 like cases, it is highly expedient, if possible, to produce to the 
 court the articles sought to be compared ; and although the law, 
 in demanding the production of the best evidence, does not ex- 
 pressly require that this course should be adopted, but permits 
 a witness to testify as to his having made the comparison, without 
 first proving that the article cannot be produced at the trial, their 
 non-production, when unexplained, may often generate a suspicion 
 of unfairness, and will always furnish an occasion for serious com- 
 ment.^ In illustration of this subject, reference may be made to 
 an old case. A boy having found a diamond, took it to a jeweller, 
 who refused to return it to him. An action of trover was brought, 
 and as the jeweller declined to produce the diamond at the trial, 
 the judge directed the jury to presume that it was of the finest 
 water, and they found accordingly.^ So, in the case of "Wood v. 
 
 See ante, § 117. 
 
 Armory v. Delamirie, 1 Str. 504 ; 1 Smith, L. C. 301, S. C. 
 
CHAP. VI.] SKILLED WITNESSES AIDING THE JUEY. 479 
 
 Peel,^ where the point at issue was whether the plaintiff's horse 
 " Eunning Eein," who had won the Derby in 1844, was foaled by Mab 
 in 1841, the production of the horse, in order to test the accuracy 
 and credit of the witnesses who had sworn to its identity, was con- 
 sidered so material, that the plaintiff, being unable to comply with 
 an order of the court to produce it, submitted very prudently to a 
 nonsuit, rather than run the almost inevitable risk of a verdict in 
 favour of the defendant. 
 
 § 556. In many cases of this nature it will be advisable, in § 500 
 order to guide the jury to a right decision, that persons conversant 
 with the articles produced should be examined as to their opinion 
 respecting the proof of identity. For instance, if the question be 
 whether two samples of wine be drawn from the same bin, or two 
 pieces of cloth be the produce of the same loom, or two coins be 
 struck in the same die, it is important that a wine-merchant, a 
 clothier, or an officer of the Mint,^ should respectively be called, 
 in order to furnish the court with suggestions founded on practical 
 experience ; because, in such inquiries, a jury, composed of persons 
 perhaps but little acquainted with these matters, can scarcely, 
 without some extrinsic aid, be enabled to form a correct judgment 
 respecting them. Still, even here the articles should be produced, 
 that the jury may test the accuracy of the opinions expressed by the 
 witnesses, and may perceive that the reasons, upon which those 
 opinions are founded, correspond with the actual state and condition 
 of the articles themselves. 
 
 § 557. Though evidence addressed to the senses, if judiciously s 501 
 employed, is obviously entitled to the greatest weight, care must 
 be taken not to push it beyond its legitimate extent. The minds 
 of jurymen, especially in the remote provinces, are grievously open 
 to prejudices, and the production of a bloody knife, a bludgeon, or 
 a burnt piece of rag, may sometimes, by exciting the passions, or 
 
 ■' Ex. Middx. Sittings after T. T., 1844, cor. Alderson, B., MS. 
 
 2 24 & 25 v., c. 99, § 29, provides, that, in order to prove coin to be counter- 
 feit, it shall not be necessary to call any moneyer or other officer of the Mint 
 but that it shall be sufficient to prove that fact by the evidence of any other 
 credible witness. 
 
480 ABUSE OP EVIDENCE ADDEESSED TO THE SENSES. [PAET 11. 
 
 enlisting the sympathies of the jury, lead them to overlook the 
 necessity of proving in what manner these articles are connected 
 with the criminal or the crime ; and they consequently run no 
 sUght risk of arriving at conclusions, which, for want of some link 
 in the evidence, are by no means warranted by the facts proved. 
 The abuse of this kind of evidence has been a fruitful theme for 
 the satirist ; and many amusing illustrations of its effect might be 
 cited from our best authors. Shakespeare makes Jack Cade's 
 nobility rest on this foundation ; for Jack Cade having asserted, 
 that the eldest son of Edmund Mortimer, Earl of March, "was by 
 a beggar woman stolen away," " became a bricklayer when he came 
 to age," and was his father, one of the rioters confirms the story, 
 by saying, " Sir, he made a chimney in my father's house, and the 
 bricks are alive at this day to testify it; therefore deny it not.''^ 
 Archbishop Whately, — who makes use of the above anecdote in his 
 diverting " Historic Doubts relative to Napoleon Buonaparte," — 
 adds, " Truly this evidence is such as country people give one for a 
 story of apparitions ; if you discover any signs of incredulity, they 
 triumphantly show the very house which the ghost haunted, the 
 identical dark corner where it used to vanish, and perhaps even the 
 tombstone of the person whose death it foretold."^ So, in the 
 interesting story of " The Amber Witch," the poor girl charged 
 with witchcraft, — after complaining that she was the victim of the 
 sheriff, who wished to do " wantonness with her," — added, that he 
 had come to her dungeon the night before for that purpose, and had 
 struggled with her, " whereupon she had screamed aloud, and had 
 scratched him across the nose, as might yet be seen, whereupon he 
 had left her." To this the sheriff replied, " that it was his little 
 lap-dog, called Below, which had scratched him, while he played 
 with it that very morning," and ha-ving produced the dog, the court 
 were satisfied with the truth of his explanation.^ 
 
 § 558. Turning once more to matters of graver import, it may § 502 
 be observed that in causes, either relating to disputed rights of way. 
 
 ' Sec. Part of Hen. 6, act 4, scene 2. 
 
 ^ p. 28, 6th ed. 
 
 " Amber Witch, translated by Lady Duff Gordon, p. 78 — 80. 
 
CHAP. VI.] OEDEE TO VIEW THE SPOT IN DISPUTE. 481 
 
 or involving some question which depends on the relative position 
 of places, it is often desirable that the jury should have an oppor- 
 tunity of viewing the spot in controversy ; ^ since the knowledge 
 derived by these means is far more satisfactory than any obtainable 
 by the mere examination of maps or plans, which are often inac- 
 curate and obscure, and may perhaps have been prepared vrith an 
 express view to mislead. The attention of the Legislature having 
 been drawn to this subject, a clause was inserted in the Jury Act 
 of 1825,^ which enacts in substance, that when in any case, either 
 civil or criminal, or on any penal statute, depending in one of the 
 superior courts of law, it shall appear proper that some of the jurors 
 shall have a view of the place in question, in order to their better 
 understanding the evidence that may be given at the trial, the 
 court or a judge may order that a writ shall be drawn up for such 
 purpose. As the machinery under this statute was needlessly cum- 
 brous, a provision was introduced into the Common Law Procedure 
 Act of 1852,^ to simplify the practice by substituting a rule for a 
 view in the place of the old writ ; and the judges, in order further 
 to facilitate the mode of procedure, subsequently passed a resolu- 
 tion, that " the rule for a view may, in aU cases, be drawn up by 
 the officer of the court, on the application of the party, without a 
 motion for that purpose."* 
 
 § 559. Still, as the Act of 1825 speaks merely of viewing " the § 503 
 place in question," a view could seldom be granted by the court, 
 
 ' For an early instance of this practice, see Mossam v. Ivy, 10 How. St. Tr. 
 562, 631 ; a case tried in 1684. 
 
 2 6 G. 4, c. 50, §§ 23 & 24. 
 
 ^ 15 & 16 v., c. Y6, § 114, enacts, that " a writ of view shall not he necessary 
 or used ; hut whether the view is to he had by a common or special jury, it 
 shall be sufficient to obtain a rule of the court or judge's order, directing the 
 view to be had ; and the proceedings upon the rule for a view shall be the 
 same as the proceedings heretofore had under a writ of view ; and the sheriff, 
 upon request, shall deliver to either party the names of the viewers, and also 
 shall return their names to the associate for the purpose of their being called 
 as jurymen upon the trial." See, also, 34 & 35 V., v.. 65, § 38, Ir., as to the 
 Irish practice ; and Reg. Gen. 24 V., r. 75, 6 H. & N. xiii., as to the practice 
 on the Revenue side of the Court of Exchequer. 
 
 * Reg. Gen., H. T., 1853, r. 48. As to what the aiSdavit in support of the 
 application must contain, and as to costs, see id., r. 49. 
 
 I I 
 
482 OBDBR TO INSPECT PROPERTY IN DISPUTE. [PAET II. 
 
 except in actions of a local nature, such as trespass quare clausum 
 fregit, waste, and nuisance ; and Mr. Baron Parke even held that 
 the enactment was inapplicable to a case, where an action was 
 brought to recover the value of work done to the defendant's 
 house, and the defence rested on the alleged bad quality of the 
 work.^ The construction thus put upon the Act proved very 
 clearly that the Superior Courts possessed no adequate powers 
 for ordering a view even in the case of a house ; and the Common 
 Law Commissioners were not slow to perceive, that in numerous 
 other cases an inspection of chattels before trial, either by the 
 party, his witnesses, or the jury, might be of great advantage, — as, 
 for example, when the quality or construction of machinery, or the 
 condition, or value, or identity of goods was in dispute.^ Accord- 
 ingly, they recommended in their second Eeport, that the Superior 
 Courts of Common Law should be intrusted with additional powers 
 for ordering the inspection of premises and chattels, and their 
 recommendation was carried out by § 58 of the Common Law Pro- 
 cedure Act, 1854.^ 
 
 § 560. This section enacts, that " Either party shall be at liberty § 504 
 to apply to the court or a judge for a rule or order for the inspection 
 by the jury, or by himself, or by his witnesses, of any real or per- 
 sonal property, the inspection of which may be material to the proper 
 determination of the question in dispute ; * and it shall be lawful for 
 the court, or a judge, if they or he think fit, to make such rule or 
 order, upon such terms as to costs and otherwise as such court or 
 judge may direct : provided always, that nothing herein contained 
 shall affect the provisions of the ' Common Law Procedure Act, 
 1852,' or any previous Act, as to obtaining a view by a jury : pro- 
 vided also, that aU rules and regulations now in force and applicable 
 to the proceedings by view under the said last-mentioned Act, shall 
 be held to apply to proceedings for inspection by a jury under the 
 provisions of this Act, or as near thereto as may be." 
 
 ' Stones V. Menhem, 2 Ex. R. 382. 
 
 2 2d Rep. p. 37. 
 
 3 17 & 18 V., c. 125. 
 
 See Morley v. Gt. Central Gas Co., 2 Fost. & Fin. 373. 
 
CHAP. VI.] OBDEE TO INSPECT PROPERTY IN DISPUTE. 483 
 
 § 561. The Irish Act of 16 & 17 V., c. 113, contains a clause, § 504a 
 which, though differently worded, and quite sufficiently wordy, is 
 the same in effect as that just cited; for § 47 provides, that "in 
 any case in which it shall appear to the court or a judge, that it 
 would be necessary, for the purpose of ascertaining the truth of any 
 matter in dispute between the parties in the action, that an inspec- 
 tion or examination of any premises or chattels in the possession or 
 power of either party, and in respect of which, or some right or 
 injury connected with which, the said action shall be brought, 
 should be had by the opposite party, his attorney, agent, witnesses, 
 or by the jury, it shall be lawful for such court or judge to order 
 that the party, in whose possession or power the same shall be, shall 
 permit an inspection and examination of the said premises or chattels 
 by the jury, or by such person or persons on behalf of the party 
 applying, and at such times and under such regulations, as to the 
 said court or judge shall seem fit." The Patent Law Amendment 
 Act, 1852,^ which extends equally to England and Ireland, recog- 
 nises the same principle ; and under § 42 of that statute, either 
 party may, in an action for the infringement of letters patent, 
 obtain such an order for an inspection^ as the court or a judge* 
 may think fit to grant. 
 
 § 562. All these statutory powers to order the inspection of § 505 
 property, give to the courts and judges, by implication, authority 
 to order all things ancillary to the inspection required. Where, 
 therefore, a wall had recently been erected in a mine, so as to 
 obstruct a complete inspection of the workings, the court, on 
 a question of encroachment, ordered the removal of such ob- 
 struction.^ 
 
 § 563. Again, under the " Chancery Amendment Act, 1858,"* — § 505a 
 which enabled the old courts of equity to call in the assistance of 
 juries for the purpose of assessing damages, and trying questions 
 of fact, — certain orders have been promulgated, which authorise 
 
 1 15 & 16 v., c. 83. 
 
 2 See Vidi v. Smith, 3 E. & B. 969, 9Y4 ; Patent Type Found. Co. v. Lloyd, 
 5 H. & N. 192 ; Patent Type Found. Co. v. Walter, 1 V. John. 727. 
 
 3 Bennett v. Griffiths, 3 E. & E. 467. ■* 21 & 22 V., c. 27. 
 
 I I 2 
 
484 POWEB TO ORDER A VIEW. [PART 11. 
 
 either party "to apply by summons to an equity judge at cham- 
 bers for a view hy the jury,"^ — regulate the mode in which 
 the view is to be conducted, — and fix the scale of fees for re- 
 munerating respectively the under-sheriff, the showers', and the 
 jurymen.^ 
 
 § 564. The Admiralty Court Act, 1861,* contains in § 18 an § 505b 
 enactment on the same subject, which enables any party to apply 
 to that court " for an order for the inspection by the Trinity 
 Masters or others appointed for the trial of the cause, or by the 
 party himself or his witnesses, of any ship or other personal or 
 real property, the inspection of which may be material to the issue 
 of the cause ; and the court may make such order in respect of 
 the costs arisiag thereout as to it shall seem fit."* 
 
 § 565. Under the New Eules of the Supreme Court, " where 
 any cause or matter, or any question in any cause or matter, is re- 
 ferred to a Referee, he may, subject to the order of the court or a 
 judge," (among other things) " have any inspection or view, either 
 by himself or with his assessors, if any, which he may deem 
 expedient for the better disposal of the controversy before him."^ 
 
 § 566. These are admirable provisions so far as they extend, but § 506 
 as a question of policy it will scarcely admit of a doubt, that the 
 power of granting a view, which, — except in the special case of 
 Barmote Courts,^ — is at present confined, both in England and in 
 Ireland, to the judges of the Superior Courts, and to proceedings in 
 those courts, might with great advantage be extended to every court 
 
 ' According to Sir George Jessel, as his judgment is recently reported 
 in Leech v. Schweder, 43 Law J., Ch. 232, a judge of the Court of Chancery 
 ought not himself to make a personal inspection of premises ; for, — to adopt the 
 language of that learned judge, — " he may not be a person of ordinary know- 
 ledge and capacity, or he may be an old man with defective vision, or he may 
 be colour blind." Some lawyers may regard this reasoning as not quite 
 satisfactory. 
 
 2 Cons. Ord. Ch., 1860, Ord. xh., rr. 36—38, and Sch. N. Form 5. 
 
 5 24 & 25 v., c. 10. See, also, 30 & 31 V., c. 114, § 66, Ir. 
 
 * See The Germania, SV L. J., Adm. 59. 
 
 * Ord. xxxvi. R. 30. 
 
 « See 14 & 15 V., c. 94, 1 Sch., §§ 22—28, and 2 Sch. Form. 
 
CHAP. VI.] POWEE TO OEDEE A VIEW. 485 
 
 of record.^ One practical result of thus enlarging the sphere of its 
 operation would be to obviate, in a great measure, the necessity 
 which now obtains, of adopting the costly and uncertain course of 
 removing proceedings from the Central Criminal Court, the Crown 
 Courts at the Assizes, and the Sessions, into the Queen's Bench 
 Division by certiorari, whenever it is essential to the ends of justice 
 that a view should be granted. It also deserves consideration, 
 whether it be not expedient to empower the presiding judge at 
 any trial to order a view, even after the evidence may have been 
 heard,^ if in his opinion such a step is necessary for the purposes 
 of justice. 
 
 1 In E. -0. Martin, 1 Law Eep., C. C. 378 ; 12 Cox, 204 ; 41 L. J., M. C. 
 113, S. C. ; the Court of Crim. Appeal is reported to have held, that the 
 Deputy Assistant Judge for the Middlesex Sessions, on the trial of a misde- 
 meanor, was empowered to allow the jury to have a view of the premises in 
 question, after he had summed up the evidence to them. In this case, however, 
 there was no argument heard, and the attention of the judges was not directed 
 to any of the statutes on the subject. ^ Id. 
 
486 EXPLANATION OP HEARSAY. [VAMT II. 
 
 CHAPTER VII. 
 
 HEABSAY. 
 
 § 567.^ As evidence afforded by our own senses is seldom at- § 537 
 tainable in judicial trials, the law is satisfied with requiring the 
 next best evidence, namely, the testimony of those who can speak 
 from their own personal knowledge. It is not requisite that the 
 witness should have personal knowledge of the main fact in con- 
 troversy ; for this may not be provable by direct testimony, but 
 only by inference from other facts shown to exist. But it is 
 requisite that, whatever facts the witness may speak to, he should 
 be confined to those lying within his own knowledge, whether 
 they be things said or done, and should not testify from informa- 
 tion given by others, however worthy of credit they may be. For 
 it is deemed indispensable to the proper administration of justice, 
 — first, that every witness should give his testimony under the 
 sanction of an oath, or its equivalent, a solemn af&rmation, — and 
 secondly, that he should be subject to the ordeal of a, cross- 
 examination by the party against whom he is called, so that it 
 may appear, if necessary, what were his powers of perception, his 
 opportunities for observation, his attentiveness in observing, the 
 strength of his recollection, and his disposition to speak the truth. 
 But testimony from the relation of third persons, even where the 
 informant is known, cannot be subjected to these tests ; for, as 
 Mr. Justice BuUer observes, " If the first speech were without 
 oath, another oath that there was such speech makes it no more 
 than a mere speaking, and so of no value La a court of justice ; "* 
 besides, it is often impossible to ascertain through whom, or how 
 many persons, the narrative has been transmitted, from the 
 original witness of the fact. It is this, which constitutes that 
 sort of second-hand evidence, termed hearsay ; a species of proof 
 
 ■1 Gi. Ev. § 98, in great part. '' B. N. P. 294, b. 
 
CHAP. VII.] HEAKSAY INADMISSIBLE. 487 
 
 which, with a few exceptions that will be presently noticed, cannot 
 be received in judicial investigations.^ 
 
 § 568. This rule of exclusion has been recognised as a funda- § 508 
 mental principle of the law of evidence ever since the time of 
 Charles the Second ; ^ and so strictly is it enforced that it is even 
 held applicable to cases, in which, if the declaration be rejected, 
 no other evidence can possibly be obtained ; as, for example, where 
 the declaration purports to be that of the only eye-witness of the 
 transaction, and he is since dead.^ So, it has several times been 
 held, where prisoners have been indicted for ravishing children, 
 who were too young to be admissible witnesses, that statements 
 made by the children to their mothers shortly after the offence 
 
 ' The rule excluding hearsay evidence, or rather the mode ia which that 
 rule is frequently misunderstood in courts of justice, is amusiagly caricatured 
 by Mr. Dickens in his report of the case of Bardell v. Pickwick, p. 367 : — 
 
 " ' I believe you are in the service of Mr. Pickwick, the defendant in this 
 case. Speak up if you flease, Mr. Weller.' 
 
 " ' I mean to speak up, sir,' • replied Sam, ' I am in the service o' that 'ere 
 gen'l'man, and wery good service it is.' 
 
 " ' Little to do, and plenty to get, I suppose ? ' said Serjeant Buzfuz, with 
 jocularity. 
 
 " ' Oh quite enough to get, sir, as the soldier said ven they ordered him three 
 hundred and fifty lashes,' replied Sam. 
 
 " ' You must not tell us what the soldier, or any other man, said, sir,' inter- 
 posed the judge, ' it's not evidence.' 
 
 " 'Wery good, my lord,' replied Sam." 
 
 2 One of the earliest cases in which the rule was acted upon, is Sampson v. 
 Yardley, 2 Keb. 223, PL 74, 19 Car. 2. 
 
 ^ 1 Ph. Ev. 209. In Scotland the rule is otherwise ; evidence on the relation 
 of others being admitted, where the relator is since dead, and would, if living, 
 have been a competent witness. — 1 Dickson, Ev. 66, 67. And if the relation 
 has been handed down to the witness at second hand, and through several suc- 
 cessive relators, each only stating what he received from the intermediate 
 relator, it seems to be stiU admissible, if the original and intermediate relators 
 are all dead, and would have been competent witnesses if living. Tait, Ev. 
 430, 431 ; but see 1 Dickson, Bv. 70. The reason for receiving hearsay evidence 
 in cases, where, as is often the case in Scotland, the judges determine upon the 
 facts in dispute, as well as upon the law, is stated and vindicated by Sir J. 
 Mansfield, in the Berkeley Peer., 4 Camp. 415. It is observable, that, according 
 to the practice of the English courts, hearsay evidence is often admitted and 
 acted upon in aflidavits, which are submitted to the judges only. 
 
488 HEARSAY INADMISSIBLE. [PAET II. 
 
 was committed, could not be received in evidence.^ So, also, a 
 declaration, though made on oath, and in the course of a judicial 
 proceeding, cannot be received, if the litigating parties are not 
 the same; because, in such case, the party against whom the 
 evidence is offered, has had no opportunity of cross-examining 
 the declarant. The deposition therefore of a pauper as to the 
 place of his settlement, taken ex parte before a magistrate, will 
 be rejected, though the pauper himself has since absconded or 
 died.^ 
 
 § 569. The rule will even exclude declarations of a deceased § 509 
 subscribing witness to a deed or will, ia disparagement of the 
 evidence afforded by his signature. In the case of Stobart v. 
 Dryden,^ the admissibility of such declarations was strenuously 
 urged on two grounds ; first, that since the party offering the 
 deed used the declaration of the witness, as evidenced by his 
 signature, to prove the execution, the other party might well 
 be permitted to use any other declaration of the same witness, 
 ^to disprove it; and, secondly, that" such declaration was in the 
 nature of a substitute for the loss of the benefit of a cross-exami- 
 nation of the subscribing witness ; by which either the fact con- 
 fessed would have been proved, or the witness might have been 
 contradicted, and his credit impeached. Both these grounds 
 were overruled by the Court of Exchequer ; the first, because 
 the evidence of the handwriting in the attestation is not used 
 as a declaration by the vdtness, but is offered merely to show 
 the fact that he put his name there, in the manner in which 
 attestations are usually placed to genuine signatures ; and the 
 second, chiefly because of the mischiefs which would ensue, if the 
 general rule excluding hearsay were thus broken in upon. For 
 the security of solemn instruments would thereby become much 
 impaired, and the rights of parties under them would be liable to 
 
 1 E. V. Brasier, 1 Lea. 199 ; 1 East, P. C. 443, S. C. ; E. v. Nicholas, 2 C. 
 & Kir. 246, per PoUock, C. B. 
 
 ' E. V. Nuneham Courtney, 1 Bast, 373 ; E. v. Ferry Frystone, 2 East, 54 ; 
 E. V. Abergwilly, id. 63 ; Mima Queen v. Hepburn, 7 Cranoh, 296. This rule 
 does not apply to soldiers and marines ; see ante, § 498. 
 
 2 1 M. & W. 615, 623, 624, 627. 
 
CHAP. Vn.] GROUNDS FOR EXCLUDING HEARSAY. 
 
 489 
 
 be affected at remote periods by loose declarations of the attesting 
 witnesses, wliicli could neither be explained, nor contradicted, by 
 the testimony of the witnesses themselves. In admitting such 
 declarations, too, there would be no reciprocity ; for although the 
 party impeaching the instrument would thereby have an equiva- 
 lent for the loss of his power of cross-examination of the living 
 witness, the other party would have none for the loss of his power 
 of re-examination. 
 
 § 570.1 The term hearsay is used with reference to what is done § 510 
 or written, as well as to what is spoken ; and, in its legal sense, 
 it denotes that kind of evidence which does not derive its value 
 solely from the credit given to the witness himself, but which 
 rests also, in part, on the veracity and competence of some other 
 person.^ That this species of evidence is not given upon oath, 
 that it cannot be tested by cross-examination, and that it supposes 
 some better testimony, which might be adduced in the particular 
 case, are not the sole grounds for its exclusion. Its tendency to 
 protract legal investigations to an embarrassiug and dangerous 
 length, its intrinsic weakness,* its incompetency to satisfy the 
 mind as to the existence of the fact, and the frauds which may be 
 practised with impunity under its cover, combine to support the 
 rule that hearsay evidence is inadmissible.* 
 
 § 571. It cannot, however, be denied, that the rule excluding § 51X 
 hearsay evidence, though in general admirably calculated for trials 
 before popular tribunals, may in many instances work consider- 
 able injustice. For example, on a question respecting the com- 
 petency of a testator, the conduct of his family or relations taking 
 the same precautions in his absence as if he were a lunatic, or his 
 election ia his absence to some high and responsible office, or the 
 conduct of a physician who permitted him to execute a will,— jail 
 
 1 Gr. Ev. § 99, in great part. 2 1 Pt. Ev. 185, 
 
 3 " Pluris est oculatus testis unus, quam auriti decern ; 
 Qui audiunt, audita dicunt, qui vident, plane sciunt." 
 
 Plaut. Trum. Act 2, sc. 6, 1. 8, 9. 
 * Per Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296 ; 
 Davis V. Wood, 1 Wheat. 6, 8 ; E. v. Eriswell, 3 T. R. 707. 
 
490 EXCLUSION OF HEARSAY SOMETIMES UNWISE. [PAET H. 
 
 these, when considered with reference to the matter in issue, are 
 mere instances of hearsay evidence, mere statements expressed in 
 the language of conduct instead of the language of words ; and, 
 consequently, they are inadmissible in a court of justice, although 
 in the ordinary transactions of life they would deservedly be con- 
 sidered as cogent moral proof.^ So, on a question of seaworthi- 
 ness, the fact that a deceased captain, after examining every 
 part of the vessel, embarked in it with his family, — and, on a 
 question respecting the loss of insured property, the fact that 
 other underwriters have paid on the same policy,^ — cannot be 
 received in evidence. On the same ground the fact, that, after 
 the issuing of a fiat, certain creditors of the bankrupt returned 
 to his assignees goods which they had received from the bank- 
 rupt before he dehvered other goods to the defendant, was, in an 
 action of trover brought by the assignees, held inadmissible, as 
 proof that an act of bankruptcy had been committed prior to the 
 time when the goods came into the hands of the defendant ; * and,— 
 not to multiply instances,* — where a servant was indicted for per- 
 jury, in saying that her deceased mistress had never had a child, 
 declarations of the mistress were rejected as evidence for the 
 Crown, ^ although, in an action of ejectment, where the same 
 question was in issue, and the words charged as perjury were 
 uttered, such evidence was admitted, as relating to a matter of 
 pedigree.^ 
 
 § 572. In most of the instances given above, as illustrating the § 512 
 occasional inconvenience of the rule, the evidence rejected amounted 
 to something more than the mere declarations of parties not ex- 
 amined on oath, nor subjected to cross-examination; for these 
 declarations were accompanied by acts done in confirmation of their 
 sincerity, and as such, the evidence was, morally speaking, entitled 
 to great weight. The law, however, will not on this account allow 
 
 ' Wright V. Doe d. Tatham, 7 A. & E. 388, per Parke, B. ; 4 Bing. N. C. 
 64, per Vaughan, J. = 7 A. & E. 387, 388. 
 
 ■^ Backliouse v. Jones, 6 Bing. N. C. 65 ; 8 Scott, 148, S. 0. 
 ■* See Gresham Hotel Co. v. Manning, I. R., 1 0. L. 125. 
 ° Heath's case, 18 How. St. Tr. 68, 76. 
 ^ Annesley v. E. of Anglesea, 17 How. St. Tr. 1175, 1188. 
 
CHAP. Vir.J DOE D. TATHAM V. WEIGHT. 491 
 
 any exception to be made in favour of hearsay ; for although, if an 
 act done be evidence per se, any declarations accompanying that act 
 are, — as we shall presently see,^ — admissible for the purpose of 
 illustrating, qualifying, or completing it ; yet, if the act be in its 
 own nature irrelevant to the issue, and the declaration be inadmis- 
 sible, the union of the two cannot render them evidence.^ 
 
 § 573. This question was much discussed in the great case of § 5J3 
 Doe d. Tatham v. Wright,^ where the title to the property in dis- 
 pute depended upon the competency of Mr. Marsden to make a will. 
 The cause was tried four times, and as often debated in the Superior 
 Courts, till at length in the House of Lords it was decided by all 
 the judges, that letters addressed to a person, whose sanity is the 
 fact in question, unless connected in evidence with some act done 
 by him in relation thereto, are inadmissible to show that he was 
 sane, though the writers were since dead, and the party addressed 
 was treated in the letters as an intelligent man. A great majority 
 of the learned judges also held upon that occasion, that the mere 
 fact of finding such letters, many years after they were written, 
 with the seals broken, in company with other papers bearing in- 
 dorsements in the testator's handwriting, in a. cupboard under his 
 bookcase in his private room, was insufficient to raise an inference 
 that they had been read, understood, or acted upon by him ; since, — 
 although letters, found in such a situation, would no doubt be evi- 
 dence against a party criminally accused or civilly charged, because, 
 on the tacit supposition that he was a man of sound mind, it would 
 be presumed that he was cognizant of their contents ; * — ^yet, to 
 make such a supposition, where the capacity of the party was the 
 matter in controversy, would be to argue in a circle- The reasoning, 
 in fact, would proceed thus : — because the testator had sufficient 
 ability to transact business, therefore the inference arises that he 
 
 ' Post, § 583, et seq. 
 
 2 7 A. & E. 361 ; 4 Bing. N. C. 498. See Gresham Hotel Co. v. Mannine, 
 I. E., 1 C. L. 125. 
 
 ■' See 2 Euss. & Myl. 1 ; 1 A. & K 3 ; 3 N. & M. 260 ; 7 A. & E. 313 ; 6 
 N. & M. 132 ; 4 Bing. N. C. 489, S. C. 
 
 * See 7 A. & E. 369, per Gumey, B. ; id. 376, per Boaanquet, J. ; 4 Bing. 
 N. C. 531, per Alderson, B. 
 
492 SANITY WHEN PEOVABLE BY EVID. OP TEEA-iMENT. [PAET II. 
 
 read and understood the letters ; and because he read and under- 
 stood the letters, therefore the inference arises that he had suflB.cient 
 ability to transact business.'' 
 
 § 574. Had the testator, in the case just put, indorsed these 5 514 
 letters himself, or could any direct and positive evidence have been 
 given to show that he had, whether by act, speech, or writing, 
 manifested a knowledge of their contents, it is clear that the letters 
 could not have been rejected, or in any way withdrawn from the 
 consideration of the jury ; for although they would then have been 
 admitted solely on the technical ground that they explained and 
 illustrated his conduct, no rule of law could have prevented them 
 from operating with full effect upon the minds of the jury, as show- 
 ing the unbiassed opinions of the writers, and in what manner the 
 testator had been treated by them.^ 
 
 § 575. When the ecclesiastical tribunals were courts of probate, § 515 
 they adopted a different rule from that established by the case of 
 Doe d. Tatham v. Wright ; and in questions respecting the mental 
 capacity of a testator, they admitted, as evidence of treatment, 
 letters written to him by his friends, without proof of any recog- 
 nition on his part,^ — and, as evidence of opinion, letters written by 
 his relatives even to other parties.* These decisions, however, are 
 now, it is feared, of no importance, as the Probate Division is bound 
 
 1 See 7 A. & E. 391, per Parke, B. ; 4 Bing. N. C. 545, per id. ; id. 531, per 
 Alderson, B. ; id. 502, 504, per Coleridge, J. ; id. 525, 526, per Patteson, J. 
 The letters rejected in tMs case were three. 1st. A letter of gratitude to the 
 testator from a clergyman to whom he had formerly given preferment ; 2nd. A 
 letter of friendship from a relative, with whom the testator was proved to have 
 corresponded three years afterwards ; 3rd. A letter advising the testator to 
 direct his attorney to take steps in a transaction with a certain parish. This 
 letter was indorsed hy the attorney, who was long since deceased. Three of 
 the judges considered that all the letters were admissible, six thought that the 
 last was. The remaining judges, including Lds. Brougham, Lyndhurst, and 
 Cottenham, held that all the letters were alike inadmissible. 
 
 2 7 A. & E. 325, per Ld. Denman ; 4 Biag. N. C. 500, per Coleridge, J. ; 
 id. 530, per Alderson, B. ; id. 510, per Williams, J. ; id. 567, per Tindal, C. J. 
 
 ' Morgan v. Boys, per Sir H. Jenner, cited 7 A. & E. 337 ; Handley v. Jones, 
 cited id. ; Waters v. Howlett, per Sir J. NichoU, cited 1 A. & E. 8. 
 * Wheeler v. Alderson, 3 Hagg. Ec. R. 574, 609, per Sir J. NichoU. 
 
CHAP. VII.] HEARSAY AND ORIGINAL EVIDENCE DISTINCTION. 493 
 
 to recognise the rules of evidence observed in the other Divisions of 
 the High Court.i 
 
 § 576.^ In considering this branch of the law of evidence, care § 516 
 must be taken to distinguish clearly between hearsay evidence and 
 that which is deemed original. For it does not follow that, because 
 the writings or words in question are those of a third person not 
 under oath, they are therefore to be considered as hearsay. On the 
 contrary, it often happens that the very fact in controversy is, 
 whether certain things were written, or spoken, and not whether 
 they were true ; and at other times the oral or written statements 
 tendered in evidence may prove to be the natural or inseparable 
 concomitants of the principal fact in controversy.^ In either of 
 these cases it is obvious that the writings or words are not within 
 the meaning of hearsay, but are original and independent facts, 
 admissible in proof of the issue. Thus, if the question be whether 
 a party has acted prudently, wisely, or in good faith, the informa- 
 tion on which he acted, whether true or false, is original and material 
 evidence. This* is often illustrated in actions for malicious pro- 
 secution,^ or libel ;^ as also in cases of agency, and of trusts. For 
 example, in an action for malicious prosecution, when the plaintiif, — 
 in order to show that the magistrate's leniency in admitting him to 
 bail had been occasioned, not by the intercession of the defendant, 
 but by the receipt of a letter said to have come from a judge, — 
 tendered such letter in evidence, it was held to be admissible, 
 without proof that it was written by the judge's authority ; and, in 
 the same case, an affidavit sworn by a clerk of the prosecutor's 
 solicitor, which stated that means had been taken on the part of the 
 prosecutor to prevent a person from becoming bail for the plaintiff, 
 was likewise admitted as original evidence, without the clerk's being 
 
 1 20 & 21 v., c. 77, § 33 ; 20 & 21 V., o. 79, § 38, Ir. ; Supr. Ct. of Jud. 
 Act, 1873, 36 & 37 V., c. 66, § 16 ; Supr. Ct. of Jud. Act, 1875, 38 & 39 V., 
 c. 77, § 18. 
 
 2 Gr. Ev. § 100, in great part. 
 
 3 Bartlett v. Delprat, 4 Mass. 702, 708 ; Du Best v. Beresford, 2 Camp. 
 512. ■* Gr. Ev. § 101, in part. 
 
 * Ravenga v. Mackintosh, 2 B. & C. 693. 
 8 Coleman v. Southwick, 9 Johns. 45. 
 
494 BEPLIES AND GENEEAL REPUTE WHEN ORIGINAL EVID. [PAET II. 
 
 called to prove by whose instructions he had made the affidavit.^ 
 So, the replies given to inquiries made at the residence, either of an 
 absent witness, or of a bankrupt, denying that he was at home, are 
 original evidence, without examining the persons to whom the in- 
 quiries were addressed ; because the testimony of the parties 
 inquiring is sufficient to establish the denial, which is the only 
 material fact.^ 
 
 § 577.* Not only does this doctrine apply, whenever the fact that § 517 
 a certain communication was made, and not its truth or falsehood, 
 is the point in controversy ; * but it extends also to those cases, 
 where the truth of the fact in dispute will be inferred from the 
 existence of another fact which is under investigation. Upon these 
 grounds it is considered that evidence of general reputation, re- 
 puted ownership, public rumour, general character, general noto- 
 riety, and the like, though composed of the speech of third persons 
 not under oath, is original evidence and not hearsay ; the imme- 
 diate subject of inquiry being the concurrence of many voices, 
 which raises a presumption that the fact in which they concur is 
 true.* 
 
 § 578. Thus, it has frequently been decided that, except in peti- § 517 
 tions for damages by reason of adultery, and in indictments for 
 bigamy, where strict proof of marriage is required,^ general reputa- 
 tion is admissible to establish the fact of parties being married. 
 In most of the cases, the marriage has been proved by evidence of 
 certain specific facts, such as the parties being received into society 
 as man and wife, being visited by respectable families in the neigh- 
 
 > Taylor v. WillanB, 2 B. & Ad. 845. 
 
 2 Crosby v. Percy, 1 Taunt. 364 ; Key v. Shaw, 8 Bing. 320 ; Morgan v. 
 Morgan, 9 id. 359 ; Summer v. Williams, 5 Mass. 444 ; Pelletreau v. Jackson, 
 11 Wend. 110, 123, 124 ; Phelps v. Foot, 1 Conn. 387. Where it is necessary 
 to show, not only that diligent search has been made for the witness, but that 
 he is actually absent, such evidence is not admissible. See ante, §§ 475, 517. 
 
 \ Gr. Ev. § 101, in part. 
 
 " Whitehead v. Scott, 1 M. & Rob. 2 ; Shott v. Strealfield, id. 8. 
 
 ^ Poulkes V. Sellway, 3 Esp. 236 ; Jones v. Perry, 2 id. 482 ; B. N. P. 296 
 297 ; Oliver v. Bartlett, 1 B. & B. 269 ; Gurr v. Button, Holt, N. P. R. 327. 
 
 » See ante, § 172. 
 
CHAP. VII.] GENERAL NOTORIETY WHEN ORIGINAL EYIDENCB. 495 
 
 bourhood, attending church and public places together, and other- 
 wise demeaning themselves in public, and addressing each other, 
 as persons actually married.^ Still, though some of these circum- 
 stances are receivable, as amounting to acts of admission by the 
 parties themselves, those, which are merely evidence of the treat- 
 ment of the parties by third persons, cannot be admissible on any 
 principle that would not equally include the declarations of strangers. 
 The acts, like the words, merely show the opinion entertained by 
 persons not called as witnesses ; and though it may be said, that 
 what a person does is usually better evidence of his opinion than 
 what he says, yet this is an observation which goes rather to the 
 weight than to the admissibility of the evidence. Accordingly, 
 general evidence of reputation in the neighbourhood, even when un- 
 supported by facts, or when partially contradicted by evidence of 
 a contrary repute,^ will be receivable in proof of marriage ; and in 
 one case it was decided, after verdict, that the uncorroborated state- 
 ment of a single witness, who did not appear to be related to the 
 parties, or to live near them, or to know them intimately, but who 
 asserted that he had heard they were married, was sufficient, prim^ 
 facie, to warrant the jury in finding the marriage, the adverse party 
 not having cross-examined the witness, nor controverted the fact by 
 proof.' 
 
 § 579. "Upon somewhat similar grounds, it has been held, that, on § 517 
 a prosecution for conspiring to procure large meetings to assemble 
 for the purpose of inspiring terror in the community, a witness 
 might be called to prove that several persons, who were not ex- 
 amined at the trial, had complained to him that they were alarmed 
 at these meetings, and had requested him to send for military as- 
 sistance;* and, on a question whether a libellous painting was 
 
 ' Kay V. Ducliesse de Vienne, 3 Camp. 123 ; Hervey v, Hervey, 2 W. Bl 
 877 ; Birt v. Barlow, 1 Doug. 174 ; Read v. Passer, 1 Esp. 214 ; Leader v. 
 Barry, id. 353 ; Doe v. Fleming, 4 Bing. 266 ; Goodman v. Goodman, 28 L. J.' 
 Ch. 1 ; Smith v. Smith, 1 Phillim. E. 294 ; Hammick v. Bronson, 5 Day, 29o' 
 293 ; In re Taylor, 9 Paige, 6. ' ' 
 
 2 Lyle V. Ellwood, 19 Law Eep., Ecj. 98, per Hall, V.-C. ; 44 L. J., Ch. 164 
 S. C. ' Evans v. Morgan, 2 C. & J. 453. 
 
 •• E. V. Vincent, 9 C. & P. 275 ; Eedford v. Biiley, 3 Stark. R. 88—91. " 
 
496 EXPRESSIONS OF BODILY OR MENTAL FEELINGS. [PART II. 
 
 made to represent a certain indiyidual, the declarations of spectators, 
 while looking at the picture in the exhibition, have been admitted 
 in evidence.^ 
 
 § 580.^ Whenever the bodily or mental feelings of an individual § 518 
 are material to be proved, the usual expressions of such feelings, 
 made at the time in question, are also origiaal evidence. If they 
 were the natural language of the affection, whether of body or mind, 
 they furnish satisfactory evidence, and often the only proof, of its 
 existence. And the question whether they were real, or feigned, is 
 for the jury to determine. Thus, the representations by a sick 
 person of the nature and effects of the malady under which he is 
 labouring, are receivable as original evidence, whether they be made 
 to the medical attendant, or to any other person, though the former 
 are naturally entitled to greater weight than the latter, inasmuch 
 as a physician is far more capable than a man unacquainted with 
 the symptoms of diseases, of forming a correct judgment respecting 
 the accuracy of the statements.^ This doctrine has been carried to 
 such an extent that, in an action by the husband upon a policy of 
 insurance on the life of his wife, where the question related to the 
 state of her health at the time when the policy was effected, a wit- 
 ness for the defendants was allowed to state the result of a conver- 
 sation she had had with the deceased, shortly after the surgeon who 
 was consulted in effecting the insurance had given a certificate of 
 her health, in which conversation the deceased had expressed an 
 apprehension that she should only live a few days, and had added 
 that she had not been well from a time preceding her being ex- 
 amined by the surgeon. The court held that the conversation was 
 admissible, notwithstanding the general rule which at that time ex- 
 cluded the declaration of a wife as against her husband ; * and the 
 more especially so, as the surgeon had been first called by the 
 
 ' Du Bost V. Beresford, 2 Camp. 512, per Ld. Ellenborongh. 
 
 ' Gr, Ev. § 102, in part. 
 
 ' Aveson v. Ld. Kinnaird, 6 East, 188 ; E. v. Blandy, 18 How. St. Tr. 
 1135—1138 ; Gardner's Peer., 79, per Copley, Att.-Gen. ; Grey v. Young, 
 4 M'C. 31 ; Gilchrist v. Bale, 8 "Watts, 355. See Witt v. "Witt and Klindworth, 
 3 Swab. & Trist. 143, where Sir C. Cresswell rejected feHers written by a patient 
 to a medical man describing his symptoms. Sed qu. 
 
 * See now, 16 & 17 V., c. 83. 
 
CHAP. VII.] EXPBESSIONS OF BODILY OR MENTAL FEELINGS. 497 
 
 plaintiff, and had admitted that he had formed his opinion respect- 
 ing her health, principally from the satisfactory answers which she 
 had given to his inquiries.'- 
 
 § 581. So, on a trial for murder by poisoning, statements made § ^^^ 
 by the deceased in conversation shortly before he took the poison, 
 have been received in evidence for the purpose of proving the 
 state of his health at that time ; ^ and, on the same ground, it has 
 frequently been held, in actions or indictments for assault, that 
 what a man has said about himself to his surgeon was evidence to 
 show what he suffered by reason of the assault.^ So, on an indict- 
 ment for highway robbery, the fact that the prosecutor, a few 
 hours after the attack made upon him, complained to a constable 
 that he had been robbed, will perhaps be admissible ; though the 
 witness cannot be further asked whether, on making the complaint, 
 the prosecutor mentioned the name of the prisoner.* It would 
 seem, also, that, in prosecutions for rape, proof that the woman 
 shortly after the injury complained that a dreadful outrage had 
 been perpetrated upon her, would, in the event of her death, be 
 receivable as independent, evidence ;^ and if the prosecutrix were 
 called as a witness, such complaints would a fortiori be admissible 
 as tending to confirm her credit.^ In no case, however, can the 
 particulars of the complaint be disclosed by witnesses for the 
 Crown, either as original, or as confirmatory evidence, but the 
 details of the statement can only be elicited by the prisoner's 
 
 ' Aveson v. Ld. Kinnaird, 6 East, 188. 
 
 2 R. V. Jolmson, 2 C. & Kir. 354, per Alderson, B. ; E. v. Blandy, 18 How. 
 St. Tr. 1135—1138. 
 
 3 Aveson v. Ld. Kinnaird, 6 East, 198, per Lawrence, J. ; E. v. Guttridge, 9 
 C. & P. 472, per Parke, B. 
 
 ■• E. V. Wink, 6 C. & P. 397 ; commented upon ty Cresswell, J., in E. v. 
 Csbome, C. & Marsh. 624. 
 
 5 E. V. Megson, 9 C. & P. 420, per Eolfe, B. ; E. Osborne, C. & Marsh. 624, 
 per Cresswell, J. ; E. v. Lunny, 6 Cox, 477, per Monahan, C. J. In E. v. 
 Guttridge, 9 C. & P. 471, where a prosecutrix for a rape was absent from the 
 trial, Parke, B., rejected proof of her complaint, apparently on the ground that 
 it was only confirmatory evidence. 
 
 6 R. V. Megson, 9 C. & P. 420 ; E. v. Clarke, 2 Stark. E. 241 ; 1 East, P. C. 
 444, 445 ; 1 Hale, 633. 
 
 K K 
 
498 MUTUAL DEMEANOUR OF HUSBAND AND WIFE. [PART II. 
 
 counsel on cross-examination.^ It is difficult to see upon what 
 principle this rule is founded, where the complaint is offered as 
 confirmatory evidence ; because, if witnesses were permitted to 
 relate all that the prosecutrix had said in making her original 
 complaint, such evidence would furnish the best test of the accu- 
 racy of her recollection, when she was sworn to describe the same 
 circumstances at the trial.^ 
 
 § 582. Again, in petitions for damages on the ground of adul- § 520 
 tery,^ if it be material, with the view of increasing or diminishing 
 the damages, to ascertain upon what terms the husband and wife 
 lived together before the seduction, their language and deportment 
 towards each other, their correspondence together, and their con- 
 versations and correspondence with third persons, are original 
 evidence.* But, to guard against the abuse of this rule, it must 
 be proved by some evidence independent of the date appearing on 
 the face of the letters,^ that they were written by the wife to the 
 husband prior to any suspicion of misconduct on her part, and 
 when, consequently, no grounds existed for imputing collusion.^ 
 It is not, however, necessary, in the absence of other suspicious 
 circumstances, to explain why the husband and wife were living 
 apart at the time when the letters were written,'' though of course 
 it is expedient that such explanation should, if possible, be given. 
 
 1 E. V. Walker, 2 M. & Rob. 212, per Parke, B. ; E. v. Osborne, C. & Marsh. 
 622 ; R. V. Quigley, Ir. Cii. R. 677, per Torrens, J. 
 
 2 See R. V. Walker, 2 M. & Rob. 212. 3 See 20 & 21 V., c. 85, § 33. 
 
 " Trelawney ■;;. Coleman, 2 Staxk. R. 191 ; 1 B. & A. 90, S. C. ; Willis ». 
 Bernard, 8 Bing. 376 ; Winter v. Wroot, 1 M. & Rob. 404, per Ld. Lyndburst ; 
 Gilchrist V. Bale, 8 Watts, 355. 
 
 * Trelawney v. Coleman, 2 Stark R. 193, per Holroyd, J. ; Houliston v. 
 Smyth, 2 C. & P. 24, per Best, C. J. This last case was an action for board 
 and lodging supplied to a wife, while living separate from her husband in con- 
 sequence of his cruelty ; and letters, purporting to be written by the wife, were 
 tendered by the husband to rebut this charge, but were rejected on the ground 
 that no proof was given, beyond their date, of the time when they were sent. 
 See ante, § 170. 
 
 " Edwards v. Crock, 4 Esp. 39, per Ld. Kenyon ; Trelawney v.. Coleman, 
 1 B. & A. 90 ; Wilton v. Webster, 7 C. & P. 198, per Coleridge, J. See Wynd- 
 ham's Divorce Bill, 3 Macq. So. Ga., H. of L. 54. 
 
 ' Trelawney v. Coleman, 2 Stark. R. 191 ; 1 B. & A. 90, S. C. 
 
CHAP. Vn.J DECLAEATIONS WHEN ADMISSIBLE AS EES GESTiE. 499 
 
 § 583.-^ Certain other declarations and acts are admitted as § 521 
 original evidence, being distinguished from hearsay by their con- 
 nexion with the principal fact nnder investigation. The affairs 
 of men consist of a complication of circumstances, so intimately 
 interwoven as to be hardly separable from each other. Each owes 
 its birth to some preceding circumstance, and in its turn becomes 
 the prolific parent of others ; and each, during its existence, has its 
 inseparable attributes, and its kindred facts, materially affecting 
 its character, and essential to be known, in order to a right under- 
 standing of its nature. These suri'ounding circumstances may 
 always be shown to the jury along with the principal fact, pro- 
 vided they constitute parts of what are termed the res gestm ; and 
 whether they do so or not must in each particular case be deter- 
 mined by the judge in the exercise of his sound discretion, accord- 
 ing to the degree of relationship which they bear to that fact.^ 
 Thus, on the trial of Lord George Gordon for treason, the cry of 
 the mob, who accompanied the prisoner on his enterprise, was re- 
 ceived in evidence, as forming part of the res gestae, and showing 
 the character of the principal fact.^ So, on an indictment for man- 
 slaughter, a statement, made by the deceased immediately after he 
 was knocked down, as to how the accident happened, has been held 
 admissible;* and similar evidence has been received by Lord Holt, 
 in an action brought by a husband and wife against a defendant for 
 wounding the wife.^ 
 
 § 584. So, also, where a person enters upon land in order to take § 521 
 advantage of a forfeiture, to foreclose a mortgage, to defeat a dis- 
 seisin,^ or the Uke ; or changes his actual residence, or domicil,'' or 
 is upon a journey, or leaves his home, or returns thither, or remains 
 abroad, or secretes himself ; or, in fine, does any other act material 
 
 ' Gr. Ev. § 108, in great part. 
 
 2 Per Park, J., in Eawson v. Haigh, 2 Bing. 104 ; Ridley v. Gyde, 9 Bing. 
 349, 352 ; Pool v. Bridges, 4 Pick. 379 ; Allen v. Duncan, 11 Pick. 309. 
 
 3 21 How. St. Tr. 514, 529. 
 
 * E. V. Foster, 6 C. & P. 325, per Park and Patteson, Js., and Gumey, B. 
 
 * Thompson v. Trevanion, Skin. 402. 
 
 « Co. Lit. 49 b, 245 b ; Robison v. Swett, 3 Greenl. 316 ; 3 Bl. Com. 174, 
 175. ^ Brodie v. Brodie, 2 Swab. & Trist. 259. 
 
500 DOCTEINE OF KES GEST^. [PABT II. 
 
 to be understood ; his declarations made at the time of the trans- 
 action, and expressive of its character, motive, or object, are regarded 
 as "verbal acts, indicating a present purpose and intention," and are 
 therefore admitted in proof, like any other material facts.^ So, upon 
 an inquiry as to the state of mind, sentiments, or opinions of a 
 person at any particular period, his contemporaneous declarations 
 are admissible as parts of the res gestse.^ Again, in a suit for en- 
 ticing away a servant, his statement at the time of leaving his master 
 will be received, as tending to show the motive of his departure;^ 
 and where an action of trover was brought against the assignees of 
 a bankrupt, and it appeared that the plaintiff, at the recommenda- 
 tion of the bankrupt, had sent some goods to a dyer, and had told 
 him that the bankrupt would call and give directions about them, it 
 was held that these directions should have been submitted to the jury 
 on behalf of the assignees, as affording some evidence of a dealing 
 with the goods, if not of the consent of the true owner to such dealing.* 
 
 § 585. So extensive is this rule in its operation, that to a § 522 
 certain degree it even overrides the general provision of law, 
 which precludes a party's declarations from being evidence for 
 himself; and therefore, in an action for falsely representing the 
 solvency of a stranger, whereby the plaintiffs were induced to trust 
 him with goods, statements by them at the time when the goods 
 were supplied, that they trusted him in consequence of the repre- 
 sentation, were received as evidence on their behalf;^ and where 
 
 ' Bateman v. Bailey, 5 T. E. 512, and the observations of Mr. Evans upon it, 
 in 2 Poth., Obi., App. No. xvi., § 11 ; Eawson v. Haigh, 2 Bing. 99 ; 9 Moore, 
 217, S. C. ; Vacber v. Cocks, M. & M. 353, per Ld. Tenterden ; Smitb v. 
 Cramer, 1 Bing. N. C. 585 ; Doe v. Arkwrigbt, 5 C. & P. 575, per Parke, B. ; 
 Lord V. Colvin, 4 Drew. 366 ; Qorbam v. Canton, 5 Greenl. 266 ; Tbomdike 
 V. City of Boston, 1 Mete. 242 ; Lund v. Tyngsborougb, 9 Cusb. 37, 43. In 
 R. V. Edwards, 12 Cox, 230, Quain, J., carried tbe law to its extreme limit, for, 
 on a trial of wife murder, be allowed a witness to state wbat tbe wife bad said 
 about ber busband a week before her death, on bringing to tbe cottage of the 
 witness an axe and carving knife to be taken care of. Sed qu. as to this case. 
 
 2 Bartbelemy v. Tbe People, &c., 2 Hill, N. Y. Rep. 248, 257. 
 
 ^ Hadley v. Carter, 8 New Hamps. 40. See, however, R. v. Wainwright, 13 
 Cox, 171, per Cockburn, 0. J., and R. u. Pook, id. 172, note, per Bovill, 0. J., 
 et qu. 4 giia^j-p v. Newsholme, 5 Bing. N. C. 713. 
 
 * Fellowes v. 'Williamson, 51. & M. 306, per Ld. Tenterden. See, also, 
 Milne v. Leisler, 31 L. J., Ex. 257; 7 H. & N. 786, S. C. 
 
CHAP. VII.] WHAT DECLARATIONS FORM PART OF THE RES GESTiB. 501 
 
 a bailee was sued for loss by negligence, his declarations, con- 
 temporaneous with the loss, have been held in America to be 
 admissible in his favour, as tending to show the nature of the 
 loss.i In Lord George Gordon's trial, his counsel strove to carry 
 this doctrine one step further ; and witnesses having been called 
 by the Crown to speak to a meeting that was held on the 29th of 
 May, and to what fell from the defendant on that occasion, one of 
 them was asked on cross-examination, what Lord George had said 
 on the preceding night relative to the meeting, the object being to 
 show thereby that his motives in convening and attending it were 
 not criminal. The court, however, held that though the witness 
 might be questioned as to the whole conversation that passed at the 
 meeting, the private declaration of the defendant, whether subse- 
 quent or precedent to that meeting, could not be given in evidence 
 as explanatory of his intentions or conduct.^ 
 
 § 586. In the practical application of this rule, two points de- s 523 
 serve especial attention. The first is, that declarations, — though 
 admissible as evidence of the declarant's knowledge or belief of 
 the facts to which they relate, and of his intentions respecting 
 them, — are no proof of the facts themselves ; and, therefore, if it 
 be necessary to show the existence of such facts, proof aliunde 
 must be laid before the jury ; and it seems that, in strict practice, 
 this proof should be given in the first instance, before the court 
 be called upon to receive evidence of the declarations. For 
 example, the fact of insolvency must be established, before state- 
 ments of the insolvent will be admitted to show that he was aware 
 of his embarrassed circumstances.^ Sometimes, under the law 
 relating to bankrupts, the truth of the facts need not be proved, 
 but it will sufiSce to show the bankrupt's belief. Thus, if the act 
 of bankruptcy relied upon be an absenting with intent to delay 
 creditors, a declaration by the bankrupt that he left home to avoid 
 a writ will be admissible, though no evidence be given that any 
 
 ' Story, Bail. § 339 ; citing Tomkins v. Saltmaxsli, 14 Serg. & E. 275 • 
 Beardslee v. Richardson, 11 Wend. 25. 
 
 2 21 How. St. Tr. 542, 543. 
 
 3 Thomas v. Connell, 4 M. & W. 26V, 269, 270 ; Craven v. Halliley, cited id. 
 270, per Parke, B. ; Vacher ;;. Cocks, M. & M. 353. 
 
502 WHAT DECLAEATIONS FORM PART OF THE RES GESTAE. [PAET II. 
 
 writ was actually out against him, because, in order to constitute 
 this act of bankruptcy, neither writ nor pressure is in fact neces- 
 sary.^ Still, even in this case, the departure from home is a 
 substantive act, which must be proved by evidence independent 
 of the declaration ; and being an act in itself equivocal, the state- 
 ment of the bankrupt made during its continuance, is admissible 
 to show the intention with which it was done.^ 
 
 § 587. The second point deserving consideration is, that, al- § 524 
 though acts, by whomsoever done, are res gestae, if relevant to 
 the matter in issue,^ yet if they be irrelevant, declarations quali- 
 fying or explaining them will, together with the acts themselves, 
 be rejected. Thus, in an action against a town for injuries sus- 
 tained through a defect in a highway, the declarations of a surgeon, 
 since deceased, which were made at the time of his examining 
 the plaintiff's wounds, have been rejected as evidence of the 
 nature and extent of the injuries ; for, in such a case as this, the 
 fact of the surgical examination would itself have been immaterial, 
 and the declarations were no more than the mere hearsay ex- 
 pression of a professional opinion.* On the non-attention to this 
 rule was founded one of the main fallacies in Wright v. Doe d. 
 Tatham. There, on an issue respecting the sanity of a testator, 
 letters written to him, and found among his papers after his death, 
 were offered in evidence ; and it was contended that the writing 
 of a letter was an act done, that the contents of the letter were 
 declarations accompanying that act, and that an opinion, though 
 not evidence per se, was yet evidence when embodied in an act. 
 To this it was answered by Mr. Justice Coltman, that, if the 
 letter was admissible on this ground, it must be either because 
 the act done is evidence by itself, or because the opinion was 
 evidence. Where an act done is evidence per se, a declaration 
 accompanying that act may well be evidence, if it reflects light 
 
 1 Eouoh V. Gt. "West. Ry. Co., 1 Q. B. 51, 62, 63 ; 4 P. & D. 686, S. C. ; 
 Newman v. Stretch, M. & M. 338, per Parke, J. ; Ex parte Bamford, 15 Ves. 
 449 ; Robson v. Rolls, 9 Bing. 648. 
 
 2 Rouch V. Gt. West. By. C., 1 Q. B. 63. 
 
 3 Wright V. Doe d. Tatham, 7 A. & E. 355, per Parke, B. 
 * Lund V. Tyngshorough, 9 Cush. 37. 
 
CHAP. VII.] WHAT DECLARATIONS FORM PART OP THE RES GESTAE. 503 
 
 upon or qualifies the act. But where the act is in its own nature 
 irrelevant to the issue, and where the declaration per se cannot 
 be received, no case has yet established that the union of the two 
 will render them admissible.^ 
 
 § 588. In all these cases the principal points of attention are, § 525 
 whether the circumstances and declarations offered in proof were 
 so connected with the main fact under consideration, as to illus- 
 trate its character, to further its object, or to form, in conjunction 
 with it, one continuous transaction. It was at one time thought 
 necessary that they should be contemporaneous with it ; ^ but this 
 doctrine has of late years been rejected, and it seems now to be 
 decided, that, although concurrence of time must always be con- 
 sidered as material evidence to show the connection, it is by no 
 means essential.^ Thus, what a bankrupt said immediately on 
 his return home, as to the place where he had been, and his 
 motive in going, has been held admissible ; * and in Ridley v. 
 Gyde,^ where the disputed act of bankruptcy was a fraudulent 
 transfer, a declaration by the bankrupt, in which he gave a false 
 account of the matter, was received in evidence, though made 
 nearly a month after the transfer had taken place. In that case, 
 the creditor, with whom the conversation was held, had pressed 
 for payment of his debt immediately before the transfer, and bad 
 been promised security for the following day ; but, instead of 
 keeping his word, the banlcrupt had transferred his property to a 
 relative, and had absconded. Under these circumstances the 
 
 1 Wright V. Doe d. Tatham, V A. & E. 361, ante, § 572. 
 
 * This seems still to he the law in America. Thus, in Enos v. Tuttle, 3 Conn. 
 R. 250, Hosmer, C. J., ohserved, that declarations, to become part of the res 
 gestse, " must have heen made at the time of the act done, which they are sup- 
 posed to characterise, and have been well calculated to unfold the nature and 
 quality of the facts they were intended to explain, and so to harmonise with 
 them, as obviously to constitute one transaction.'' 
 
 " Rouch V. Gt. West. Ry. Co., 1 Q. B. 60, 61 ; 4 P. & D. 686, S. C. 
 
 < Bateman v. Bailey, 5 T. R. 512 ; recognised by the Court in Rouch v. Gt. 
 West. Ry. Co., 1 Q. B. 61. 
 
 5 9 Bing. 349 ; 2 M. & Sc. 448, S. C. In this case, Gaselee, J., differed from 
 the rest of the court, but the opinion of the majority was confirmed and reccf- 
 nised in Rouch v. Gt. West. Ry. Co., 1 Q. B. 61. 
 
504 NARRATIVES OF PAST EVENTS INADMISSIBLE. [PAET II. 
 
 court, considering that the statement was a mere resumption of 
 the conversation which was had at the first interview, adopted the 
 rule which Mr. Justice Park had laid down in Rawson v. Haigh,^ 
 " that it is impossible to tie down to time the rule as to the 
 declarations," and that, if connecting circumstances exist, a decla- 
 ration may, even at a month's interval, form part of the whole 
 res gestas. So, where a trader had absented himself from home 
 during the latter half of February and the commencement of 
 March, two letters written by him on the 16th of January, in 
 which he had asked for time on some bills of exchange payable in 
 February, were admitted in evidence, as tending to throw light on 
 the cause of his absence.^ 
 
 § 589.^ Still, an act cannot be varied, qualified, or explained, § 526 
 either by a declaration which amounts to no more than a mere 
 narrative of a past occurrence, or by an isolated conversation held, 
 or an isolated act done, at a later period.* Thus, the schedule of 
 an insolvent, delivered four months after his execution of a deed 
 of assignment, has been rejected, when tendered by the assignees 
 as evidence that the indenture was executed with intent to peti- 
 tion ; ^ and where a creditor called upon a bankrupt in the morn- 
 ing, and being told that he was out, paid a second visit in the 
 evening of the same day, when the bankrupt made a statement 
 respecting his absence in the morning, Mr. Baron Parke held 
 that this statement was inadmissible, for the purpose of showing 
 that the bankrupt had intentionally denied himself to his creditors, 
 it being too remote in point of time from the absence which it 
 purposed to explain.^ This last case can scarcely be reconciled 
 with Bateman v. Bailey,''' and possibly it would now be considered 
 as laying down the rule somewhat too strictly ; but whatever may 
 be the precise limits of the rule, — if any can be assigned, — it is 
 perfectly clear that declarations made, or letters written, during 
 
 ' 2 Bing. 104 ; 9 Moore, 217, S. C. 
 
 2 Smitli V. Cramer, 1 Bing. N. C. 585 ; 1 Scott, 541, S. 0. 
 
 ^ Gr. Ev. § 110, sHglitly. 
 
 * Hyde v. Palmer, 3 B. & S. 657 ; 32 L. J,, Q. B. 126, S. 0. 
 
 ^ Peacock ii. Harris, 5 A. & E. 449, 454. 
 
 ^ Lees V. Maitia, 1 M. & Eob. 210. 
 
 ' 5 T. R. 512, cited ante, § 588, n. 4. 
 
CHAP. VII.] ACTS AND DECLARATIONS OF CONSPIKATOES. 505 
 
 absence from home, explanatory of the motive of departure, are 
 admissible as original evidence, since the departure and absence 
 are very properly regarded as one continuing act.^ 
 
 § 590.^ The same principles apply to the acts and declwrations § 527 
 of one of a company of conspirators, in regard to the common 
 design as affecting his fellows. Here, a foundation should first be 
 laid by proof, sufficient, in the opinion of the judge, to establish 
 prima facie the fact of conspiracy between the parties, or, at least, 
 proper to be laid before the jury, as tending to establish such fact. 
 The connexion of the individuals in the unlawful enterprise being 
 thus shown, every act and declaration of each member of the con- 
 federacy, in pursuance of the original concerted plan, and with 
 reference to the common object, is, in contemplation of law, the act 
 and declaration of them all ; and is, therefore, original evidence 
 against each of them.^ 
 
 § 591. Sometimes, for the sake of convenience, the acts or § 528 
 declarations of one are admitted in evidence before sufficient proof 
 is given of the conspiracy ; the prosecutor undertaking to furnish 
 such proof in a subsequent stage of the cause. But this mode of 
 proceeding rests in the discretion of the judge, and in seditious 
 or other general conspiracies is seldom permitted, except under 
 particular and urgent circumstances ; for, otherwise, the jury 
 might be misled to infer the fact itself of the conspiracy from the 
 
 ' Rouoli 1). Gt. West. Ey. Co., 1 Q. B. 51, 61 ; 4 P. & D. 686, S. 0. ; Rawson 
 V. Haigh, 2 Bing. 99, 104 ; 9 Moore, 217, S. .0. 
 
 2 Gr. Ev. § 111, in great part. 
 
 3 E. V. Stone, 6 T. E. 528, 529 ; 25 How. St. Tr. 1267, 1277, 1313, S. 0. ; 
 American Fur Co. v. U. S., 2 Pet. 358, 365 ; Crowninsliield's case, 10 Pick. 
 497 ; U. S. V. Gooding, 12 Wheat. 469 ; Com. v. Eberle, 3 Serg. & E. 9. In 
 E. 1). M'Kenna, Ir. Cir. Eep. 461, Pennefatlier, C. J., thus laid down the 
 law : — " It is necessary to prove the existence of a conspiracy, and to connect 
 the prisoner with it in the first instance, where you seek to give ia evidence 
 against him the declaration of a co-conspirator ; and having done so you are 
 then at liberty to give in evidence against the prisoner acts done by any of 
 the parties, whom you have connected with the conspiracy; but when a 
 party's own declarations are to be given in evidence, such preliminary proof 
 is not recLuisite, and you may, as in any other offence, prove the whole case 
 against him by his own admissions.'' 
 
506 ACTS AND DECLARATIONS OF CONSPIRATORS. [PART II. 
 
 declarations of strangers. Still, as a conspiracy need not be estab- 
 lished by proof which actually brings the parties together, but may 
 be shown, like any other fact, by circumstantial evidence, the de- 
 tached acts of the different persons accused, including their written 
 correspondence, entries made by them, and other documents in 
 their possession relative to the main design, will sometimes from 
 necessity be admitted, as steps to establish the conspiracy itself. On 
 this subject it is difficult to establish a general inflexible rule, but 
 each case must, in some measure, be governed by its own peculiar 
 circumstances.^ 
 
 § 592.^ It makes no difference at what time the party accused § 529 
 is proved to have entered into the conspiracy or combination ; 
 because every one, who agrees with others to effect a common 
 illegal purpose, is generally considered in law as a party to every 
 act, which either had before been done, or may afterwards be 
 done, by the confederates, in furtherance of the common design.^ 
 One or two individuals may have concocted the scheme, but all 
 who afterwards join in carrying it out are equally guilty with the 
 originators;* at least, if any evidence be forthcoming from which 
 their adoption of the previous acts of the association can reason- 
 ably be inferred.* Neither does it matter whether the acts were 
 done, or the declaration made, in the presence or in the absence of 
 the accused, but everything said or done by any one of the con- 
 spirators or accomplices in furtherance of the common object, is 
 evidence against each and all the parties concerned, whether they 
 were present or absent, and whether or not they were individually 
 aware of what was taking place.^ Thus, the cries of a mob, with 
 whose proceedings the prisoner is connected, though made in his 
 absence, are admissible against him, as explanatory of the objects 
 which he, in common with the multitude, had in view ; '' and 
 
 1 See E. V. Blake, 6 Q. B. 126 ; Ford v. ElKott, 4 Ex. K. 78. 
 
 2 Gr. Ev. § 111, in part. 
 
 3 E. V. Watson, 32 How. St. Tr. 7, per Bajiey, J. 
 " R. V. Murphy, 8 C. & P. 311, per Coleridge, J. 
 
 * R. V. O'Connell, Arm. & T, 813, 814, per Pennefather, C. J. 
 « K V. Brandreth, 32 How. St. Tr. 857, 858. 
 
 J" R. V. Ld. Geo. Gordon, 21 How. St. Tr. 535, 536 ; cited by BuUer, J., in 
 R. 0. Hardy, 24 How. St. Tr. 452. See R. v. Petcherini, 7 Cox, 79. 
 
CHAP. YII.] ACTS AND DECLARATIONS OF CONSPIRATORS. 507 
 
 expressions used by persons going to a meeting convened by the 
 defendant, are receiYable on similar grounds.^ In O'Connell's case, 
 where the defendants were charged with summoning monster meet- 
 ings for illegal purposes, papers publicly sold at these meetings, 
 and supporting the views of the defendants, were received in 
 evidence, though no proof was given connecting the defendants 
 with the persons selling the papers.^ 
 
 § 593. Care, however, must be taken to distinguish between § 530 
 declarations, which are either acts in themselves purporting to 
 advance the objects of the criminal enterprise, or which accom- 
 pany and explain such acts, and those statements, whether written 
 or oral, which, although made during the continuance of the plot, 
 are in fact a mere narrative of the measures that have already 
 been taken. These last statements are, as before explained,^ 
 inadmissible. The distinction here referred to may be well illus- 
 trated by the case of Hardy, who was prosecuted for high treason. 
 There, a letter, written by a co-conspirator to a private friend 
 unconnected with the plot, which gave an account of the pro- 
 ceedings of a society to which the writer and the defendant were 
 proved to have belonged, and which enclosed several seditious 
 songs stated to have been composed by the writer, and sung by 
 him at a meeting of the society, was rejected, on the ground that 
 it was not a transaction in support of the conspiracy, but merely 
 a relation of the part which the writer had taken in the plot, and, 
 as such, only admissible against himself.* A second letter was 
 then offered in evidence, which was written by another co-conspi- 
 rator to a delegate in the country, describing the events that had 
 occurred in London, and encouraging him thereby to proceed in 
 the criminal business in which he was engaged ; and as this letter 
 was considered by the court as an act done in furtherance of the 
 
 1 E. V. Hunt, 3 B. & A. 574 ; Bedford v. BMey, 3 Stark. R. 85—88. 
 
 2 Arm. & T. 275—277. 
 
 3 Ante, § 589. 
 
 * 24 How. St. Tr. 451—453, per Eyre, C. J., Macdonald, C. B., and 
 Hotham, B. ; BuUer and Grose, Js., diss. In E. v. Watson, 32 How. St. Tr. 
 352, Ld. Ellenborougli observed tliat there was great weight in the arguments 
 of Buller and Grose, Ja. 
 
508 NARRATIVES, DESCRIPTIONS, AND CONFESSIONS INADMISS. [PART II. 
 
 plot, it was received against the defendant, though no evidence 
 was given to show that it had ever reached the person for whose 
 perusal it was intended.^ 
 
 § 594. The same distinction was drawn by the court in the case § 531 
 of E. V. Blake,^ where the accused was indicted for conspiring with 
 one Tye and others to defraud her Majesty of certain duties of 
 customs. It appeared at the trial that Blake was a landing waiter, 
 and Tye an agent for importers, at the custom-house ; and it was 
 the duty of these persons respectively to make entries of the con- 
 tents of cases imported, so as to be a check upon each other. It 
 was shown that on thirteen occasions they had made false entries, 
 in which they stated that certain packages contained smaller 
 quantities than was really the fact. It was then proposed to put 
 in evidence Tye's day-book, which contained entries in his hand- 
 writing relative to the thirteen transactions, and showed the 
 amount of duty actually paid by him. This book was found in 
 Tye's counting-house, and the court held that it was clearly 
 admissible, as containing entries made in furtherance of the con- 
 spiracy. Tye's cheque-book was next produced, for the purpose of 
 showing by the counter-foil that Blake had received from him part 
 of the moneys of which the customs had been defrauded in these 
 transactions ; but the court rejected this evidence, on the ground 
 that it was no act done in pursuance of the plot, but was a mere 
 statement as to the mode of distributing the plunder, after the 
 fraud had been completed. Again, a conversation between two 
 men, apparently returning from a meeting, which had been held 
 within an hour before, and about half a mile distant from the spot 
 where the men were, has been rejected, though offered as evidence, 
 not only of the general nature of the meeting, but of the effect that 
 was likely to be produced by the language there employed.^ In 
 fine, the declarations of a conspirator or accomplice are receivable 
 against his fellows, only when they are in themselves acts, or when 
 
 1 24 How. St. Tr. 473— 4V7, per Macdonald, C. B., Hotliam, B., Buller and 
 Grose, Js. ; Eyre, C. J., dutit. 
 
 = 6 Q. B. 126. 
 
 3 E. 1). O'Connell, Arm. & T. 267—259. See, also, R. „. Murphy, 8 C. & 
 P. 305 ; E. V, Watson, 2 Stark. E. 141 ; 32 How. St. Tr. 349, 351, S. C. 
 
CHAP. VII.] PAPERS FOUND UNPUBLISHED WRITINGS. 509 
 
 they accompany and explain acts, for which the others are respon- 
 sible ; but not when they are in the nature of narratives, descrip- 
 tions, or subsequent confessions, 
 
 § 595. On a somewhat similar principle, papers found, after the § 532 
 apprehension of a prisoner, on the person or at the lodgings of a 
 co-conspirator, will be admissible or not against the accused, accord- 
 ing as there is or is not evidence to show that they existed before 
 he was taken into custody. If no such evidence can be given, the 
 papers will be rejected, as the prisoner cannot be responsible for acts 
 or writings, which possibly may not have existed until after the 
 common enterprise was, so far as he was concerned, at an end ; ^ 
 but if the previous existence of the papers be established, either 
 by direct proof, or by strong presumptive evidence, the objection to 
 their admissibility can no longer prevail.^ 
 
 § 596. The question how far unpublished writings upon abstract s 633 
 subjects, which, though of a kindred nature with the crime charged, 
 have no direct relation to it, are admissible in evidence, may 
 admit of some doubt. In the case of Algernon Sidney, a treatise 
 containing speculative republican doctrines, which not only was 
 unpubUshed and unconnected with the treasonable practices of 
 which he was accused, but which appeared to have been composed 
 several years before the trial, was, under the auspices of Judge 
 Jefferies, admitted in evidence ; ^ but subsequent times have re- 
 garded this trial as a judicial murder, and such proof would as- 
 suredly be rejected at the present day. If, indeed, the papers 
 were closely connected with the nature and object of the alleged 
 crime, they would probably, though unpublished, be considered in 
 strict law admissible, without any positive proof that they were 
 intended to be used in furtherance of the design ; and if such 
 
 1 R. V. Hardy, 24 How. St. Tr. 718, 731. 
 
 2 B. V. Watson, 32 id. 337—342, 347—350 ; 2 Stark. R. 140, 141, S. C. See 
 B. V. M'Catferty, I. R., 1 C. L. 363. There, acts of insurrection committed 
 after the arrest of tlie prisoner, but in consec[uence of instructions given by 
 him before he was apprehended, were held to be admissible in evidence on a 
 charge of conspiracy to raise rebellion. 
 
 3 9 How. St. Tr. 854—859 ; observed upon by Abbott, J., in R. v. "Watson, 
 2 Stark. R. 147 ; and in Fost. C. L. 198. 
 
510 DECLARATIONS OP CO-TEESPASSEES. [PAET II. 
 
 proof could be given, they would doubtless be received.'^ Where 
 conversations of co-conspirators or accomplices are proved, the 
 effect of the evidence will of course depend upon the surrounding 
 circumstances, such as the fact and degree of the prisoner's atten- 
 tion to what was said, and his approval or disapproval thereof.^ 
 
 § 597. The declarations of co-trespassers in civil actions are § 334 
 governed by the same rules ; that is, if several are jointly sued, 
 the declarations of each, which constitute parts of the res gestae, 
 are admissible against all ; ^ while those which amount to mere 
 admissions, or narratives of past events, can only be received 
 against the party making them.* In one case,^ which was an 
 action for false imprisonment, Mr. Baron Garrow admitted the 
 declarations of a co-defendant, showing personal malice, as evidence 
 against the other defendants, though made in their absence, and 
 several weeks after the act complained of ; but the attention of the 
 learned judge does not appear to have been drawn to the time when 
 the words were spoken, and probably this case would not now be 
 sanctioned. Where ^o common object or motive is imputed, as in 
 actions for negligence, the declaration of each defendant is admis- 
 sible against himself alone.* 
 
 § 598.'' This doctrine extends to all cases of powteers/itp. When- §535 
 ever any number of persons are associated together in the joint 
 prosecution of a common enterprise or design, as in commercial 
 partnerships, and similar cases, the act or declaration of each 
 member, in furtherance of the common object of the association, 
 is the act or declaration of all. By the very act of association each 
 partner is constituted the agent of the others, for all purposes 
 
 ' E. 11. "Watson, 32 How. St. Tr. 354—361 ; 2 Stark. R. 141, S. C. 
 
 2 B. V. Hardy, 24 id. 703, per Eyre, C. J. 
 
 ' See E. V. Hardwick, 11 Bast, 585, per Ld. Ellenliorough ; Powell v. 
 Hodgetts, 2 C. & P. 432, per Garrow, B. j North v. MHes, 1 Camp. 389, per 
 L<1. EUenborough ; Bowsher v. Galley, id. 391, n. per id. ; 1 Ph. Ev. 204. 
 
 ■* Daniels v. Potter, M. & M. 501, per Tindal, C. J. 
 
 5 Wright V. Court, 2 C. & P. 232. 
 
 « Daniels v. Potter, M. & M. 503, per Tindal, C. J. 
 
 ? Gr. Ev. § 112, in -paxt. 
 
CHAP. VII.] DECLARATIONS OF PAETNEES. 511 
 
 within the scope of the partnership concern ; ^ unless, under the 
 special circumstances of the case, an intention can be inferred by 
 the jury, that a particular act should not be binding without the 
 direct concurrence of each individual partner.' While the firm 
 thus created exists, it speaks and acts only by the several members ; 
 but when that existence ceases by dissolution, the subsequent acts 
 of the individual members are binding on themselves alone,' except 
 so far as may have been otherwise agreed upon by the articles of 
 association or of dissolution,* or as the acts relate to the previous 
 business of the firm.^ This last exception may be illustrated by 
 the case of Pritchard v. Draper,* where Lord Brougham held, that 
 the admission of one partner, as to the payment, subsequently to a 
 dissolution, of a debt due to the firm, was admissible against the 
 other partners. 
 
 § 599. In the case just cited, the party making the admission § 536 
 was at the time, so far as the debt in question was concerned, 
 jointly interested with the parties against whom his statement was 
 tendered in evidence.'' Had not such been the case, the decision 
 would probably have been the other way ; for where a bill was filed 
 to set aside a bond given to a banking firm on the ground of fraud, 
 and it appeared that before the commencement of the suit, the 
 partner, who originally managed the transaction, had retired from 
 the firm, had become a certificated bankrupt, and, according to his 
 
 ■■ Sandilands i>. Mar&h, 2 B, & A. 673, 678, 679 ,- R. i>. Hardwick, 11 East, 
 589; Fox u Clifton, 6 Bing. 792 ; NichoUs v. Dowding, 1 Stark. R. 81 ; Ho- 
 denpyl v. Vingerlioed, CHtty, Bills, 627, n. g ; Van Reimsdyk «i Kane, 1 Gall. 
 630, 635 ; Coit v. Tracy, 8 Conn. 268. Ante, § 185. 
 
 2 LatcH V. WedlaJse, 11 A. & E. 959, 965, 966. 
 
 ' Wood V. Braddiok, 1 Taunt 105, per Sir. J. Mansfield; Petterick v. 
 Turner, cited id. ; Kilgour v. Einlyson, 1 H. Bl. 155. 
 
 ' Burton v. Issitt, 5 B. & A. 267 ; Bell v. Morrison, 1 Pet. 37L 
 
 * "Wood V. Braddiok, 1 Taunt. 104. See Parker v. Morrell, 2 PMU. 453. 
 
 ^ 1 Russ. & MyL 191, 199, 200. See Loomis and Jacksoa v. Loomis, 3 
 Deane, Verm. R. 198, wliere it was held generally, that the admissiona of one 
 partner, made after the dissolution of partnership, in regard te the business of 
 the firm previously transacted, are admissihle as evidence against all the 
 partners. 
 
 ' See and compare the ohservations of Ld. Cottenham, in Pairker v. Morrell, 
 2 Phill. 464, 465 ; of the Reporter in S. C. 464, n. b ; and of Cresswell, J., in 
 S. C. on issue tried at Nisi Prius, 2 C. & Kir. 603. 
 
512 ACKNOWLEDGMENT OF DEBT BY PARTNEE. [PAET II. 
 
 own admission, had long ceased to have any interest in the bond, 
 the court held that the answer of this man, who had heen made a 
 defendant as executor of another partner, and who admitted the 
 fraud, was not receivable in evidence against his co-defendants, the 
 continuing partners.^ 
 
 § 600. It deserves notice, that neither a written acknowledgment § 537 
 of a partnership debt by one member of a firm, nor a written 
 promise by him to pay it, nor even actual payment by him of the 
 interest, or part payment of the principal due, whether made during 
 the partnership, or after the dissolution,^ will take the case out of 
 the Statute of Limitations, as against the other members ; ^ but 
 this, — as will hereafter appear,* — is owing to the salutary operation 
 of Lord Tenterden's Act of 1828,^ as extended by the Mercantile 
 Law Amendment Act of 1856.® 
 
 § 601. It is true that Lord Tenterden's Act, in the enactment § 538 
 just referred to, speaks merely of joint contractors, and does not in 
 terms mention partners ; and consequently here, — as in other cases 
 where the language of the Legislature is in the remotest degree 
 doubtful, — a distinction has been attempted to be drawn between 
 these two classes of persons, and it has been contended that a sig- 
 nature by one of several partners, using the name of the firm, wiU 
 take the case out of the statute as to all the partners, in a transac- 
 tion in which aU are interested, because a partnership name is the 
 name of each and every member of the firm. In the case where 
 this subtle and forlorn point was raised, the court found it un- 
 necessary to express an opinion upon it ; ^ but as a ruling in its 
 favour would manifestly fritter away the provisions of a very bene- 
 ficial enactment, it is presumed that, if the objection should again 
 be taken, the judges would not hesitate to negative its validity.^ 
 
 1 Parker v. Morrell, 2 Phill. 453 ; 2 C. & Kii. 599, S. C. 
 ' Briatow v. Miller, 11 Ir. Law R. 461 ; Watson v. Woodman, 20 Law Rep., 
 Eq. 721 ; 45 L. J., Ch. 57, S. C. 
 ^ Jones V. Ryder, 4 M. & W. 32 ; Hopkins v. Logan, 5 id. 248, per Parke, B. 
 ' Post, §§ 744, 745. * 9 G. 4, c. 14, § 1. 
 
 M9 & 20 v., c. 97, § 14. 
 ' Clark V. Alexander, 8 Scott, N. R. 160, 163. 
 ' See Bristow v. Miller, 11 Ir. Law R. 461. 
 
CHAP. VII.J DECLABATIONS OF AGENTS, WHEN ADMISSIBLE. 613 
 
 § 602.1 The declarations of agents are admissible against their § 539 
 principals on grounds very similar to those which goyern the 
 declarations of co-partners. The principal constitutes the agent as 
 his representative in the transaction of certain busiaess. What- 
 ever, therefore, the agent does in the lawful prosecution of that 
 business, is the act of the principal ; and as Mr. Justice Story ob- 
 serves, "where the acts of the agent wUl bind the principal, there 
 his representations, declarations, and admissions, respecting the 
 subject-matter, will also bind him, if made at the same time, and 
 constituting part of the res gestae."^ They are original evidence 
 and not hearsay ; and, being regarded as verbal acts, they are 
 receivable in evidence without calling the agent himself to prove 
 them.^ Still, the admission of the agent cannot always be assimi- 
 lated to the admission of the principal. The party's own admis- 
 sion, whenever made, may be given in evidence against him : 
 but the admission or declaration of his agent binds him only 
 when it is made during the contiauance of the agency, in regard 
 to a transaction then dependiag, et dum fervet opus* When the 
 agent's right to interfere in the particular matter has ceased, the 
 principal can no longer be affected by his declarations, any more 
 than by his acts, but they wiU be rejected in such case as mere 
 hearsay.^ 
 
 § 603. Thus, when a horse-dealer, or Hvery-stable keeper, em- § 539 
 ploys a servant to sell a horse, any statement made by him respect- 
 ing the horse at the time of sale, even though it amount to a 
 warranty of soundness,^ which the servant has been really ordered 
 
 1 Gr. Ev. § 113, in part. 
 
 2 Story, Agen. § 134. ' Doe v. Hawkins, 2 Q. B. 212. 
 
 * See Kirkstall Brewery Co. v. Fumess Ey. Co., 9 Law Eep., Q. B. 468 ; 43 
 L. J., Q. B. 142, S. C. 
 
 5 Faiilie i>. Hastings, 10 Ves. 123, 126, 127, per Sir W. Grant ; Garth v. 
 Howard, 8 Birig. 451 ; Langhorn v. AUnutt, 4 Taunt. 519, per Giblis, J. ; 
 Betham v. Benson, Gow, S. 45, per Dallas, C. J. ; Mortimer v. M'Callan, 6 M. 
 & W. 58, 69, 73 ; R v. Hall, 8 C. & P. 358, per Littledale, J. ; The Mechanics' 
 Bk. of Alexandria v. Bk. of Coltimbia, 5 Wheat. 336, 337 ; Hannay v. Stewart, 
 6 Watts, 487, 489 ; Stockton v. Demuth, 8 Watts, 39 ; Stewartson v. Watts, id. 
 392 ; Baring v. Clark, 19 Pick. 220 ; Bk. of Monroe v. Field, 2 Hill, R. 445 ; 
 Story, Agen. §§ 134, 137. 
 
 6 Brady v. Tod, 30 L. J., C. P. 224, per Brie, C. J. But the servant of a 
 
 L L 
 
514 DECLABATIONS OP AGENTS, WHEN ADMISSIBLE. [PAET ll. 
 
 not to give, will, as it seems, bind the master ;^ but the servant's 
 declarations or acknowledgments at any other time, whether made 
 to the purchaser or to a stranger, will not be received.^ So, if a 
 letter written by an agent form the whole or part of an agreement, 
 which by the course of his business he was authorised to make, it 
 will be admissible against the principal; but if it be offered as 
 proof of the contents of a pre-existiag contract, or if it contain an 
 account of transactions already performed, it will properly be re- 
 jected, though addressed to the principal himself;^ unless the 
 principal has replied to it, or has otherwise adopted or acted upon 
 iti in which case the agent's letter will be received as explanatory 
 of the principal's conduct.* 
 
 § 604. The law upon this subject has been well explained by Sir § ^^^ 
 William Grant, in the case of FairUe v. Hastings.^ " As a general 
 proposition," said he, " what one man says, not upon oath, cannot 
 be evidence against another man. The exception must arise out of 
 some peculiarity of situation, coupled with the declarations made 
 by one. An agent may undoubtedly, within the scope of his 
 authority, bind his principal by his agreement ; and in many cases 
 by his acts. What the agent has said may be what constitutes the 
 agreement of the principal ; or the representations or statements 
 made may be the foundation of, or the inducement to, the agree- 
 ment. Therefore, if writing is not necessary by law, evidence must 
 be admitted to prove that the agent did make the statement or re- 
 presentation. So, with regard to acts done, the words with which 
 those acts are accompanied frequently tend to determine their 
 
 private owner, intrusted to sell a horse, not at a fair or public mart, but on 
 some one particular occasion, bas no implied authority to bind his master by 
 a warranty, id. 223 ; S. 0. nom. Brady v. Todd, 9 Com. B., N. S. 592. See 
 Miller v. Lawton, 3 New R. 430 ; 15 Com. B., N. S. 834, S. C. 
 
 1 Howard v. Sheward, 36 L. J., C. P. 42 ; 2 LaAV Eep., C. P. 148, S. C. 
 
 2 AHen V. Denstone, 8 C. & P. 760, per Erskine, J. ; Helyear v. Hawke, 5 
 Esp. 72, per Ld. Ellenborough. See, also, Peto v. Hague, 5 Esp. 134, per Ld. 
 Ellenborough ; Gt. West. Ry. Co. v. Willis, 34 L. J., C. P. 195 ; 18 Com. B., 
 N. S. 748, S. C. 
 
 ^ Eairlie v. Hastings, 10 Ves. 128 ; Langhorn v. AUnutt, 4 Taunt. 511 ; 
 Kahl V. Jansen, id. 565 ; Reyner v. Pearson, id. 662. 
 ■* Coates V. Bainbridge, 5 Bing. 58. . s j^q Ygg_ ^^Q 127. 
 
CHAP. VII.] DECLARATIONS OF AGENTS, WHEN ADMISSIBLE. 515 
 
 quality. The party, therefore, to be bound by the act, must be 
 affected by the words. But, except in one or the other of those 
 ways, I do not know how what is said by an agent can be evidence 
 against his principal. The mere assertion of a fact cannot amount 
 to proof of it ; though it may have some relation to the business, 
 in which the person making that assertion was employed as agent. 
 * * * ijhe admission of an agent cannot be assimilated to the 
 admission of the principal. A party is bound by his own admis- 
 sion ; and is not permitted to contradict it. But it is impossible to 
 say that a man is precluded from questioning or contradicting any- 
 thing any person has asserted as to him, respecting his conduct or 
 his agreement, merely because that person has been an agent of his. 
 If any fact, material to the interest of either party, rests in the 
 knowledge of an agent, it is to be proved by his testimony, not by 
 his mere assertion." 
 
 § 605. As the rule admitting the declarations of the agent is § 541 
 founded upon his legal identity with the principal, they bind only 
 so far as the agent had authority to make them.^ The declarations, 
 therefore, and acts of an agent cannot bind an infant, because an 
 infant cannot appoint an agent ; and, consequently, if an infant, 
 even by letter of attorney, appoints a person to make a lease, he will 
 not be bound thereby, neither will his ratification bind him ; but 
 the lease of an infant to be good, must be his own personal act.^ 
 When, however, the principal is of full age, and the authority is 
 express, he will be bound by the declarations and acts of his agent, 
 and no dif&culty can weU arise in applying this rule ; but questions 
 of much nicety will often occur, where power to make an admission 
 is sought to be inferred by implication from an authority to do a 
 certain act. A few examples may furnish some guide upon this 
 subject. Thus, where a wife is authorised, in her husband's ab- 
 sence, to carry on the business of his shop, her admissions, made 
 on application to pay for goods previously delivered at the shop, will 
 
 1 See Faussett v. Fauasett, V Ec. & Max. Cas. 93—95 ; Hogg v. Garrett, 12 
 Ir. Eq. R. 559. 
 
 2 Doe V. Eoberts, 16 M. & W. 778, 780, 781, per Parke, B. See Hargrave v. 
 Hargrave, 12 Beav. 408. 
 
 L L 2 
 
516 THKEE CLASSES OF DECLARATIONS ORIGINAL EVIDENCE. [PART II. 
 
 be received in evidence against the husband ; ^ but her acknowledg- 
 ments of an antecedent contract for the hire of the shop, or her 
 agreement to make a new contract for the future occupation of it, 
 will be rejected, as it cannot be necessary that the wife should have 
 this extensive power of binding her husband, for the mere purpose 
 of conducting the business of the shop.^ So, if goods were de- 
 posited with a pawnbroker in the ordinary course of his business, a 
 declaration of the shopman that his master had received the goods, 
 would probably be admissible against the master, because it might 
 well be assumed that the shopman was authorised to answer any in- 
 quiries respecting the goods, made by persons interested in them ; 
 but if the admission related to a transaction unconnected with the 
 immediate business of the shop, — as, for instance, if it referred to 
 the loan of several hundred pounds on a single pledge at five per 
 cent, interestf — it would not be received.^ 
 
 § 606.* The foregoing observations will have shown that there § 542 
 are three classes of declarations, which, though usually treated 
 under the head of hearsay, are, in truth, original evidence ; the 
 Jirst class consisting of cases where the fact that the declaration 
 was made, and not its truth or falsity, is the point in question ; 
 the second including expressions of bodily or mental feelings, 
 where the existence or nature of such feelings is the subject of 
 inquiry ; and the third embracing all other cases, where the de- 
 claration offered in evidence may be regarded as part of the res 
 gestce. All these classes are involved in the principle of the last, 
 and have been separately treated merely for the sake of greater 
 distinctness. 
 
 ' Clifford V. Burton, 1 Bing. 192 ; 8 Moore, 16, S. C. 
 
 2 Meredith v. Footner, 21 M. & W. 202. 
 
 ^ Garth v. Howard, 8 Bing. 451. ■• Gr. Ev. § 123, in great part. 
 
CHAP. VIII.] SIX EXCEPTIONS TO EXILE EEJECTING HEARSAY. 517 
 
 CHAPTER VIII. 
 
 MATTERS OF PUBLIC AND GENERAL INTEREST. 
 
 § 607. -^ Having illustrated the nature of hearsay evidence, shown § 543 
 the reasons on which it is generally excluded, and explained the 
 distinction between such evidence and that which is original, it 
 will next be convenient to consider the cases in which the rule re- 
 jecting hearsay has been relaxed. These cases may be conveniently 
 divided into six classes : — first, those relating to matters of pubhc 
 and general interest ; — secondly, those relating to pedigree ; — 
 thirdly, those relating to ancient possession ; — fourthly, declara- 
 tions against interest ; — fifthly, declarations in the course of office 
 or business ; and lastly, dying declarations. It will be observed, 
 that these exceptions, which are allowed only on the ground of the 
 assumed absence of better evidence, and, as it were, from necessity, 
 embrace most of the inconveniences that would result from a stern 
 and universal application of the rule, and thus remove the principal 
 objections which have been urged against it. The exceptions will 
 now be discussed in their order. 
 
 § 608. And first, the admissibility of hearsay evidence respect- § 544 
 ing matters of public and general interest, appears to rest mainly 
 on the following grounds : — that the origin of the rights claimed 
 is usually of so ancient a date, and the rights themselves are of 
 so undefined and general a character, that direct proof of their 
 existence and nature can seldom be obtained, and ought not to 
 be required ; that in matters, in which the community are in- 
 terested, all persons must be deemed conversant ; that as common 
 rights are naturally talked of in public, and as the nature of such 
 rights much lessens the probability, if it does not exclude the 
 possibiHty, of individual bias, what is dropped ia conversation 
 respecting them may be presumed to be true; that the general 
 interest which belongs to the subject would lead to immediate 
 contradiction from others, if the statements proved were false • 
 
 • Gr. Ev. § 127 in part. 
 
518 MATTEES OF PtJBLIC AND GENEEAL INTEREST. [PAET II. 
 
 that reputation can hardly exist without the concurrence of many 
 parties unconnected with each other, who are all more or less 
 interested in investigating the subject ; that such concurrence 
 furnishes strong presumptive evidence of truth ; and that it is 
 this prevailing current of assertion which is resorted to as evidence, 
 for to this every member of the community is supposed to be privy, 
 and to contribute his share.^ 
 
 § 609.^ In speaking of matters of public and general interest, the § 545 
 terms " public " and " general " are sometimes used as synonymes, 
 meaning merely what concerns a multitude of persons.^ But, in 
 regard to the admissibility of hearsay testimony, a distinction has 
 been taken between them ; the term public being strictly applied 
 to that which concerns every member of the state ; and the term 
 general being confined to a lesser, though still a considerable, 
 portion of the community. This distinction should be carefully 
 attended to, because in matters strictly public, such, for example, 
 as a claim of highway or a right of ferry, reputation from any one 
 appears to be receivable ; and although declarations would be 
 almost worthless, unless made by persons who, by living in the 
 neighbourhood, or by frequently using the road or ferry, or the 
 like, are shown to have had some means of knowledge ; yet, the 
 want of such proof of their connexion with the subject in question 
 seems to affect the value only, and not the admissibihty, of the 
 evidence. If, however, the right in dispute be simply general ; 
 that is, if those only who live in a particular district, or adventure 
 in a particular enterprise, are interested in it, hearsay from per- 
 sons wholly unconnected with the place or business would be not 
 only valueless, but probably altogether inadmissible.* 
 
 1 Wright V. Doe d. Tatliam, 7 A. & E. 360, 361, per Coltman, J. ; S. C. 4 
 Bing. N. C. 528, per Alderson, B. ; Moorwood v. Wood, 14 East, 259, n., per 
 Ld. Kenyon ; Weeks v. Sparks, 1 M. & Sel. 686, per Ld. Ellenborougli ; 
 Berkeley Peer., 4 Camp. 415, 416, per Sir J. Mansfield ; R. v. Bedfordshire, 
 4 E. & B. 542, per Ld. Campbell, adopting almost the language above em- 
 ployed. 2 Gr. Ev. § 128, in part. 
 
 3 Pim V. Curell, 6 M. & W. 234. 
 
 ^ Crease v. Barrett, 1 C. M. & E. 929, per Parke, B. By the Roman law, 
 reputation, or common fame, seems to have been admissible in evidence in all 
 cases ; but it was not generally deemed sufiicient proof, and, in some cases, not 
 
CHAP. VIII.] MATTERS OF PUBLIC AND GENERAL INTEREST. 519 
 
 § 610. Thus, if a dispute were to arise respecting the existence § 546 
 of a local custom, ia which all the tenants of a manor were inte- 
 rested, eyidence of reputation would be admissible, not only from 
 any deceased tenant, but from any deceased resident within the 
 manor ; for it might fairly be presumed that the residents, being 
 persons conversant with the neighbourhood, would be acquainted 
 with the local customs.^ So,^ where the question was whether 
 Nottingham Castle was within the hundred of Broxtowe, certain 
 ancient orders, which were made by the Justices at the Quarter 
 Sessions for the county, and in which the castle was described 
 as being within that hundred, were held admissible evidence of 
 reputation ; the justices, though not proved to have been residents 
 within the county or hundred, being presumed, from the nature and 
 character of their offices alone, to have had sufficient acquaintance 
 with the subject in dispute, to make the statements in their order 
 admissible.^ 
 
 even semiplma probatio, unless corroborated ; nisi aliis adminiculis adjuvetw. 
 I Masc. de Prob., ConcL 171, n. 1 ; Conol. 183, n. 2 ; ConoL 547, n. 19. It 
 was held sufficient, plena prohatio, wherever, from the nature of the case, better 
 evidence was not attainable ; ubi a communiter accidentibus, probatio difficilis est, 
 fama plenam sold probationem faeere ; ut in prdbatione Jiliationis. But Mas- 
 cardus deems it not sufficient, in cases of pedigree witbin the memory of man, 
 which he limits to fifty-six years, unless aided by other evidence — tunc nempe 
 non sufficeret publica vox et fama, sed una cum ipsa deberet tractatus et nominatio 
 prdbari, vel alia adminicula urgentia adhiberi. 1 Maso. de Prob., Concl. 41 Ij 
 n. 1, 2, 6, 7. 
 
 ' Ld. Duniaven v. Llewellyn, 15 Q. B. 809, per Parke, B. See Warrick v. 
 Queen's Coll., Oxford, 40 L. J., Ch. 785, 788, per Ld. Hatherley, C. The 
 actual discussion of the subject in the neighbourhood, was a fact also relied on, 
 in the Roman law, in cases of proof by common fame. " Quando testis vult 
 probare aUquem scivisse, non videtur sufficere, quod dicat ille scivit quia erat 
 vioiaus ; sed debet addere, in vicinia hoc erat cognitum per famam, vel alio 
 modo ; et ide6 iste, qui erat vicinus, potuit id scire." 2 Menoch. de Prses. lib. 
 6, Prses. 24, n. 17, p. 772. See, also, 1 Masc. de Prob. 389, 390, ConoL 395, 
 n. 1, 2, 19, 9, where the law is thus laid down : — " Confines probantur per 
 testes. Verum scias velim, testes ia hac materia, qui vicini, et circum ibi 
 habitant, esse magis idoneos quam alios. Si testes non sentiant commodum vel 
 incommodum immediatum, possint pro suS, communitate deponere. Licet 
 hujusmodi testes siat de universitate, et deponant super confinibus suse 
 universitatis, probant, dummodum prsecipumn ipsi commodum non sentiant 
 licet inferant commodum ia universum.'' 
 
 2 Gr. Ev. § 129, in part. 
 D. of Newcastle v. Broxtowe, 4 B. & Ad. 273. 
 
520 DECLAEANT MUST HAVE COMPETENT KNOWLEDGE. [PAET II. 
 
 § 611. Again, where the question related to the custom of min- § 546 
 ing in a particular district, persons, under whose estates the 
 minerals lay, with respect to which the custom was said to exist, 
 were held to be sufficiently connected with the subject to make 
 their declarations evidence, as they were more likely than others 
 living at a distance to become adventurers, and consequently to be 
 subjected to the operation of the custom.^ But where the point at 
 issue was, whether the City of Chester anciently formed part of the 
 County Palatine, an old document, purporting to be a decree of 
 certain law officers and dignitaries of the Crown, not having 
 authority as a Court, was held inadmissible as evidence of repu- 
 tation, because those personages had no peculiar knowledge of the 
 subject, excepting what they derived in the course of that un- 
 authorised proceeding.^ Hence it appears that competent knowledge 
 in the declarant is an essential pre-requisite to the admission of his 
 testimony ; and although all the Queen's subjects are presumed to 
 have that knowledge, in some degree, where the matter is of public 
 concernment, yet, in other matters, which are not strictly public, 
 though they are interesting to many persons, some particular 
 evidence of such knowledge is generally required. , 
 
 § 612. If the quality of the hearsay itself raises a natural § 547 
 inference that it was derived from persons acquainted with the 
 subject, the courts will not require independent proof of that 
 fact ; and therefore, where the question turned on a manorial 
 custom, depositions, purporting to have been made by copy- 
 holders in an ancient suit between a former lord and a person 
 claiming admission to a copyhold, were admitted in evidence 
 without proof that the persops making them were either copy- 
 holders, or were otherwise acquainted with the customs of the 
 manor ; for the court assumed that such persons would not have 
 been brought forward as witnesses, had they been ignorant of the 
 subject.^ So, an ancient unsigned customary of a manor, which 
 
 1 Crease v. Barrett, 1 C. M. & R. 919, 928—930. 
 
 2 Rogers v. Wood, 2 B. & Ad. 245, 256, recognised by the Ct. of Ex. in 
 Crease v. Barrett, 1 C. M. & R. 928, 929. See, also, Evans v. Taylor, 7 A. & 
 E. 617, 626, 627. But see Freeman v. Read, 32 L. J., M. C. 226 ; 4 B. & S. 
 174, S. C. 3 Freeman v. Pliillipps, 4 M. & Sel. 486. 
 
CHAP. VIII.] EXAMPLES OF MATTERS OF PUBLIC INTEREST. 
 
 521 
 
 purported to be ex assensu omnium tenentivm, and which had been 
 handed down with the court rolls from steward to steward, was 
 received as evidence to prove the course of descent within the 
 manor.i But where, in order to prove the boundaries of a manor, 
 an ancient survey was produced from the proper custody, which 
 purported to have been made in the time of Queen EHzabeth by 
 a deputy surveyor appointed by the Crown, and to have been 
 founded on the presentments, of certain tenants of the manor, 
 whose names were appended to it, the court rejected the docu- 
 ment, on the ground that no proof had been given that the 
 deputy surveyor had any authority to institute the inquiry ; and, 
 stripped of this authority, he not only had no right to make any 
 kind of return, but the presumption that he did make one fell to 
 the ground. The paper might have been written by any clerk 
 idling in the office where it was found, from his own imagination, 
 or compiled, possibly, by some interested person in furtherance of 
 a sinister object of his own.^ 
 
 § 613. It may be here expedient to enumerate a few of the § 548 
 principal questions, which have been deemed to involve matters 
 of pubUc or general interest, and to contrast these with some 
 others, which the courts have considered to be of too private a 
 nature, to allow of their being illustrated by evidence of reputa- 
 tion. Thus, on the one hand, hearsay, — or, in other words, evi- 
 dence of reputation, — has been admitted, where the question related 
 to a right of common existing by immemorial custom,^ a feeding 
 per cause de vicinage resting on a similar foundation,* a parochial^ 
 or other district modus,* a manorial custom,'' a custom of mining 
 
 1 Denn v. Spray, 1 T. E,. 466, 473. See Chapman v. Cowlan, 13 East, 10. 
 
 2 Evans V. Taylor, 7 A. & E. 617, 626, 627. See, also, D. of Beaufort v. 
 Smith, 4 Ex. E. 450 ; Daniel v. Wilkin, 7 Ex. R. 429. But see Freeman v. 
 Bead, 32 L. J., M. C. 22C ; 4 B. & S. 174, S. C. ; and Smith v. Ld. Brownlow, 
 9 Law Rep., Eq. 241. 
 
 ^ Weeks v. Sparke, 1 M. & Sel. 679 ; explained in Ld. Dunraven v. 
 LleweUyn, 15 Q. B. 811, 812. 
 
 ' Priohard v. Powell, 10 Q. B. 589 ; explained in Ld. Dunraven v. 
 LleweUyn, 15 Q. B. 812. 
 
 5 Moseley v. Davies, 11 Price, 162 ; White v. Lisle, 4 Madd. 214, 224, 225 ; 
 Short V. Lee, 4 Jac. & W. 464, 473. 
 
 » Rudd V. Wright, 1 Ph. Ev. 240. ' Doe v. Sisson, 12 East, 62. 
 
522 EXAMPLES OF MATTEES OP PUBLIC INTEEEST. (.PAET II. 
 
 in a particular district/ a custom of a corporation to exclude 
 foreigners from trading within a town," the Hmits of a town/ the 
 extent of a parish,* the boundary between counties, parishes, 
 hamlets, or manors,^ or even between a reputed manor, — that is, an 
 estate which from some intervening defect has ceased to be an 
 actual manor, — and the freehold of a private individual,^ or between 
 old and new land in a manor,'^ a claim of tolls on a public road,^ 
 the fact whether a road was public or private,^ a prescriptive 
 liability to repair sea-walls,^° or bridges,^^ a claim of highway, ^^ a 
 right of ferry,^^ the fact whether land on a river was a public 
 landing-place or not,^* the existence and rights of a parochial 
 chapelry,^^ the jurisdiction of a court, and the fact whether it was 
 a court of record or not,^^ the existence of a manor, i'' a prescrip- 
 tive right of toll on all malt brought by the west country barges 
 to London,^^ a right by immemorial custom, claimed by the 
 deputy day meters of London, to measure, shovel, unload and 
 deliver all oysters brought by boat for sale within the limits of 
 
 > Crease v. Barrett, 1 C. M. & R. 919, 928—930. 
 2 Davies v. Morgan, 1 C. & J. 587, semble. 
 
 ' Ireland v. Powell, cited Pea. Ev. 16, per Chambre, J., and recognised by 
 Williams, J., in R. ii. BUss, 7 A. & E. 555. 
 
 * R. u. Mytton, 2 E. & E. 557 ; S. C. nom. Mytton v. Thombury, 29 L. J., 
 M. C. 109. 
 
 * NioboUs V. Parker, 14 East, 331, n. ; Brisco v. Lomax, 8 A. & E. 198 ; 3 
 N. & P. 388, S. C. ; Evans v. Rees, 10 A. & E. 151 ; 2 P. & D. 627, S. C. ; 
 Plaxton V. Dare, 10 B. & C. 17 ; 5 M. & R. 1, S. C. ; Tbomas v. Jenkins, 6 
 A. & E. 525 ; 1 N. & P. 588, S. 0. 
 
 " Doe V. Sleeman, 9 Q. B. 298. ' Barnes v. Mawson, 1 M. & Sel. 81. 
 
 " Brett V. Beales, M. & M. 416, 418, per Ld. Tenterden. 
 
 8 R. V. Bliss, 7 A. & E. 555, per Williams, J. 
 
 1" B. V. Leigh, 10 A. & E. 398, 409, 411. Tbe mere fact that each frontager 
 has always repaired the sea wall in front of his land is not, in itself, sufficient 
 evidence of a prescriptive liability to maintain the wall. Hudson v. Tabor, 
 L. R., 2 Q. B. D. 290, per Ct. of App. ; 46 L. J., Q. B. 463, S. C. 
 
 " R. V. Sutton, 8 A. & E. 516 ; 3 N. & P. 569, S. C. 
 
 12 Crease v. Barrett, 1 C. M. & R. 929, per Parke, B. ; Reed v. Jackson, 1 
 East, 355. " Pim v. Cmell, 6 M. & W. 234. 
 
 " Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J. 
 
 '' Carr v. Mostyn, 5 Ex. R. 69. 
 
 1" Goodtitle v. Dew, Pea. Add. Cas. 204. 
 
 '^ Steel V. Prickett, 2 Stark. R. 466, per Abbott, C. J. ; Curzon v. Lomax, 5 
 Eep. 60, per Ld. EUenborough. 
 
 '» City of London v. Gierke, Garth. 181 ; D. of Beaufort v. Smith, 4 Ex. R. 450. 
 
CHAP. VIIlJ EXAMPLES OF MATTEES NOT OF PUBLIC INTEEEST. 523 
 
 the port of London/ a claim by the lord of a manor to all coals 
 lying under a certain district of the manor,^ a claim of heriot 
 custom in respect of freehold tenements -within a manor, held in 
 fee-simple,^ a custom of electing churchwardens by a select com- 
 mittee,* and a prescriptive right to free warren as appurtenant to 
 an entire manor.' 
 
 § 614. On the other hand, evidence oi. reputation has been re- §549 
 jected, where the question was, what usage had obtained in elect- 
 ing a schoolmaster to a grammar school,® whether the sheriff of 
 .the county of Chester, or the corporation of the city of Chester, 
 was bound to execute criminals,'' whether certain tenants of a 
 manor had prescriptive rights of common for cattle levant and 
 couchant,^ what were the boundaries of a waste over which many 
 of the tenants of a manor claimed a right of common appendant,® 
 whether the lord of a manor had a prescriptive right to all wreck 
 within his manorial boundaries,^" whether the plaintiff was ex- 
 clusive owner of the soil, or had a right of common only,!^ whether 
 the land in dispute had been purchased by a former occupier, or 
 was part of an entailed estate of which he had been tenant for 
 life,^^ what patron formerly had the right of presentation to a 
 living,!^ whether a, farm modus existed, and what was its nature,^* 
 
 ' Layl)oiim v. Crisp, 4 M. & W. 320. 
 Barnes v. Mawson, 1 M. & Sel. 77, 81. In that case evidence was given of 
 an uniform exercise of tlie right. 
 ' Damerell v. Protheroe, 10 Q. B. 20. ' Berry v. Banner, Pea. E. 156. 
 
 * Ld. Carnarvon v. Villebois, 13 M. & W. 313. 
 " Withnell v. Gartham, 1 Bsp. 324, 325, per Ld. Kenyon. 
 ^ R. V. Antrobus, 2 A. & B. 793—795. 
 
 8 See Ld. Dunraven v. Llewellyn, 15 Q. B. 791, 811, 812, overruling Weeks 
 V. Sparte, 1 M. & Sel. 679 ; "Williams v. Morgan, 15 Q. B. 782. See, also and 
 compare Warrick v. Queen's CoU., Oxford, 40 L. J. 785, 788, per Ld. Hather- 
 ley, C. " Ld. Dunraven v. Llewellyn, 15 Q. B. 791. 
 
 1" Talbot V. Lewis, 1 C. M. & R. 495 ; 5 Tyr. 1, S. C. As to what constitutes 
 " wreck " distinguished from " flotsam," see Stackpoole v. The Queen I. E. 
 9 Eq. 619. 
 " Richards v. Bassett, 10 B. & C. 663, semble, per Littledale, J. ; sed qu. 
 12 Doe V. Thomas, 14 East, 323 ; 2 Smith, L. 0. 432, S. C. 
 " Per Ld. Kenyon, in E. v. Eriswell, 3 T. E. 723, questioning Bp. of Meath 
 V. Ld. Belfield, 1 Wils. 215. 
 " Wells V. Jesus CoUege, 7 C. & P. 284, per Alderson, B. ; White v. Lisle 
 
524 PRIVATE PEESCEIPTIVE EIGHTS AND LIABILITIES. [PAET 11. 
 
 whether a party had a private right of way over a particular 
 field/ whether the tenants of a particular manor had the right of 
 cutting and selling wood,^ and what were the boundaries between 
 two private estates.^ Where, however, it was shown by direct testi- 
 mony, the admission of which was unopposed, that the boundaries 
 of the farm in question were identical with those of a hamlet, 
 evidence of reputation as to the hamlet boundaries was let in for 
 the purpose of proving those of the farm ; for though it was 
 objected that evidence should not be thus indirectly admitted in 
 a dispute between private individuals, the court overruled the 
 objection, Mr. Justice Coleridge observing, that " he never heard 
 that a fact was not to be proved in the same manner when 
 subsidiary, as when it was the very matter in issue."* 
 
 § 615. The question, whether evidence of reputation is admis- § 550 
 sible to prove or disprove a private prescriptive right or HabUity, is 
 involved in some doubt.^ In the case of Morewood v. "Wood, where 
 a prescriptive right of digging stones on the lord's waste was 
 claimed by the defendant, as annexed to his estate, and the lord 
 offered evidence of reputation to prove that no such right existed, 
 the Judges of the Court of King's Bench were equally divided on 
 its admissibility ; ^ but, since m that case it is difficult to see how 
 the public could have been interested in the matter, unless it had 
 been shown, — ^which it was not, — ^that the rights of the commoners 
 were infringed by the defendant's claim, such evidence would pro- 
 bably at the present day be rejected.'^ It has, however, been deter- 
 mined by the Court of Queen's Bench, that, on the trial of an 
 
 4 Madd. 214, 224, 225 ; Wright v. Kudd, cited 1 Ph. Ev. 241, per Ld. Lynd- 
 hnrst. See, however, Webb v. Petts, Noy, 44 ; Donnison v. Elsley, 3 Eag. & 
 Y. 1396, n. ; and cases cited, 1 Ph. Ev. 241, n. 2. 
 
 1 SemUe, per Dampier, J., in Weeks v. Spaike, 1 M. & Sel. 691 ; and per 
 Ld. Kenyon, in Reed v. Jackson, 1 East, 357. 
 
 2 Blackett v. Lowes, 2 M. & Sel. 494, 500, per Ld. EUenborough. 
 
 3 Clothier v. Chapman, 14 East, 331, n. By the Eoman law, the evidence 
 of reputation seems to have been deemed admissible, even in matters of private 
 boundary. See 1 Masc. de Prob. 391, Concl. 396. 
 
 ^ Thomas v. Jenkins, 6 A. & E. 525, 529 ; 1 N. & P. 588, S. 0. See, also, 
 Brisco V. Lomax, 8 A. & E. 198, 213 ; 3 N. & P. 388, S. C. 
 ^ See Priohard v. Powell, 10 Q. B. 589. 
 " 14 East, 327, n. 7 gee ante, §§ 610, 611. 
 
CHAP. VIII.] DISTINCTION BETWEEN PUBLIC AND PRIVATE RIGHTS. 525 
 
 indictment against the inhabitants of a county for the non-repair of 
 a public bridge, to which the defendants had pleaded that certain 
 persons named were liable to repair the bridge ratione tenurse, evi- 
 dence of reputation was admissible to support the plea.^ In this 
 case it was very properly considered that the fixing an individual 
 with, or the reUeving him from, such a liability as the one in 
 question, had a necessary tendency to abridge or increase the ha- 
 bility of the whole neighbourhood,^ — and, moreover, that the ad- 
 missibility of evidence of reputation, when tendered to disprove a 
 public liability or right, could not be governed by a diiferent prin- 
 ciple from that which prevails, when such evidence is offered to 
 establish the liability or right.^ 
 
 § 616.* The probable want of competent knowledge in the decla- § 551 
 rant is the reason generally assigned for rejecting evidence of 
 reputation or common fame, in matters of mere private right. 
 "Evidence of reputation upon general points is receivable," said 
 Lord Kenyon, " because, all mankind being interested therein, it 
 is natural to suppose, that they may be conversant with the subject, 
 and that they should discourse together about them, having all the 
 same means of information. But how can this apply to private 
 titles, either with regard to particular customs, or private prescrip- 
 tions ? How is it possible for strangers to know anything of what 
 concerns only private titles ?"^ It may not on all occasions be an 
 easy matter to distinguish between public and private rights, and 
 some few of the cases cited above in illustration of the subject, may 
 possibly be considered to rest on somewhat doubtful reasoning. 
 Still, the general rule of law cannot be disputed ; namely, that 
 if the matter in question be of a public or general nature, — that is, 
 if it be interesting to the community at large, or even to a com- 
 paratively small portion of the community, such, for example, as 
 the inhabitants of a parish, a town, or a manor, — it falls within the 
 exception by which evidence of reputation is admitted ; whereas, if 
 
 1 E. V. Bedfordshire, 4 E. & B. 535 ; overruling K v. Wavertree, 2 M. & Rob. 
 353, and confirming R. v. Cotton, 3 Camp. 444. 
 
 2 See Prichard v. Powell, 10 Q. B. 599, per Patteson, J. 
 
 3 See Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J. ; and post, 
 § 620. 4 Gr. Ev. § 137, in part. ' 
 
 5 ilorewood v. Wood, 14 East, 329, n. 
 
526 REPUTATION AS TO PAETICULAR FACTS INADMISSIBLE. [PAET II. 
 
 it have no connection with the exercise of any public right, or the 
 discharge of any public duty, or with any other subject of general 
 interest, it falls within the ordinary rule by which hearsay evidence 
 is excluded. 
 
 § 617.^ The necessity for competent knowledge in the declarant § 552 
 may serve to explain and reconcile what is said m the books respect- 
 ing the inadmissibility of reputation in regard to particular facts. 
 Upon general points, as we have seen, such evidence is receivable, 
 because of the general interest which the community have in. them ; 
 but particular facts, not being equally notorious, may be misrepre- 
 sented, or misunderstood, and may have been connected with other 
 facts, by which, if known, their effect might be limited or explained. 
 Eeputation as to the existence of such particular facts is therefore 
 rejected. Thus, if the question be whether a road be public or 
 private, declarations by old persons since dead, that they have seen 
 repairs done upon it, will not be admissible ; ^ neither can evidence 
 be received that a deceased person planted a tree near the road, and 
 stated at the time of plantiag it that his object was to show where 
 the boundary of the road was when he was a boy.^ So, proof of 
 old persons having been heard to say that a stone was erected, or 
 boys whipped, or cakes distributed, at a particular place, will not be 
 admissible as evidence of boundary ; * and where the question was 
 whether a turnpike stood within the limits .of a town, though evi- 
 dence of reputation was received to show that the town extended 
 to a certain point, yet declarations by old people, since dead, that 
 formerly houses stood where none any longer remained, was re- 
 jected, on the ground that these statements were evidence of a par- 
 ticular fact.^ So, also, if the existence and amount of a parochial 
 modus be in issue, hearsay evidence of the payment of a specific 
 sum in lieu of tithes by a deceased occupier will be inadmissible ; 
 though general evidence of reputation, that it has always been 
 
 1 Gr. Ev. § 138, in part. 
 
 ' Per Patteson, J., in R. v. Bliss, 7 A. & E, 552. 
 3 B. ■«. Bliss, 7 A. & E. 550. 
 ■> Per Coleridge, J., in R. v. Bliss, 7 A. & E. 556. 
 
 '' Ireland v. PoweU, per Chambre, J., Pea. Ev. 16, cited by Williams, J., in 
 R. V. Bliss, 7 A. & E. 555. 
 
CHAP. VIII.] STATEMENTS BY PEEAMBULATORS. 527 
 
 customary to pay that sum for all the lands in the parish, will be 
 received.'^ 
 
 § 618.' Again, where the question was whether a certain place § 553 
 was parcel of a particular parish, an old book containing entries by 
 a deceased churchwarden, not charging himself, but relating to the 
 repairs of a chapel alleged to belong to the place in question, was 
 held to be inadmissible ; ^ and the same ruling has prevailed, where 
 entries in parish books, which recorded the fact that perambulations 
 had taken a particular line, were tendered in evidence.^ StiU, it 
 has been usual to admit evidence of what old persons, since de- 
 ceased, who accompanied the perambulators, have been heard to 
 say upon such occasions ; * because the custom of perambulating 
 parishes having long received high judicial sanction as a legitimate 
 mode of recording boundaries,^ — and the fact of a perambulation 
 having taken place being considered in itself evidence of the exer- 
 cise of a right,^ — it follows that statements made by perambulators 
 may be regarded as declarations accompanying acts, which, on 
 grounds already explained,'' will be admissible in evidence, provided 
 they are not confined to particular circumstances.^ 
 
 § 619. The courts now hold, — contrary to a doctrine which for- § 554 
 merly prevailed,' — that proof of the exercise of the right claimed 
 within the period of living memory, is. not an essential condition of 
 the reception of evidence of reputation ; though, of course, the 
 absence of such proof, ia cases where the nature of the subject 
 admits of its production, wiU materially aifect the value of hearsay 
 
 1 Harwood v. Sims, WigMw. 112, more fully reported and explained in 
 Moseley v. Davies, 11 Price, 162, 169—172 ; Chatfleld v. Fiyer, 1 Price, 253 ; 
 Gamons v. Barnard, 1 Anstr. 298 ; 3 Eag. & Y. 380, S. 0. ; Wells v. Jesus 
 College, 7 C. & P. 284 ; Deacle v. Hancock, McCleL 85 ; 13 Price, 226, S. C. 
 See, also. Crease v. Barrett, 1 C. M. & R. 919, 930 ; 5 Tyr. 458, 472, S. C. 
 
 2 Cooke V. Banks, 2 C. &. P. 478, per Abbott, C. J. 
 
 3 Taylor v. Devey, 7 A. & E. 409, 414. 
 
 " Weeks v. Sparke, 1 M. & Sel. 687, per Ld. Ellenborougb, and 689, per Le 
 Blanc, J. * Taylor v. Devey, 7 A. & E. 415. 
 
 « Weeks v. Sparke, 1 M. & Sel. 687, 689. 
 
 7 Ante, §§ 583—588. s ^ -p^ j;^_ 248. 
 
 ' Per Builer, J., in Morewood v. Wood, 14 East, 330, n. ; Weeks v. Sparke, 
 1 M. & Sel. 688, 689, per Le Blanc, J., and 690, per Dampier, J. 
 
528 REPUTATION EVIDENCE AGAINST PUBLIC EIGHTS. [PAET II. 
 
 when received.^ Neither is it necessary that the opinions of de- 
 ceased persons, which are tendered as evidence of common fame, 
 should appear to rest on reputation derived from others, or should 
 have been expressed in the course of a transaction relating to a 
 question of reputation ; and therefore, on an issue whether or not 
 a lane in a certain hamlet was a common highway, a paper signed 
 by several inhabitants of the hamlet, since dead, stating that the 
 lane was not a highway, was received as slight evidence of reputa- 
 tion, although it had been drawn up at a public meeting, which had 
 been convened for the sole purpose of considering the propriety of 
 repairing the road, and although the opinions expressed in the docu- 
 ment did not appear to have been founded on reputation received 
 from others.^ 
 
 § 620.^ It may further be observed, that reputation is evidence § 555 
 as well against a public right as in its favour ; and this, too, 
 whether the evidence consist of declarations which expressly 
 negative the right, or set up an inconsistent claim, or simply omit 
 all mention of the right on some occasion, when a notice of it 
 might be reasonably expected. Thus, where the question was, 
 whether a landing-place was public or private property, the declara- 
 tions of ancient deceased persons, that it was the private landing- 
 place of the party and his ancestors, were held admissible, the 
 learned judge remarking, that no distinction could be drawn between 
 the evidence of reputation to establish, and that to disparage, a 
 public right.* So, where the object was to negative the existence 
 of a particular manorial custom, the court was strongly incHned 
 to hold, — though it became unnecessary to decide the point, — that 
 an ancient deed, made between the lord of the manor and a great 
 many of the copyholders, in which the latter claimed, and the 
 former admitted and confirmed, what they mutually conceived to be 
 
 1 Crease v. Barrett, 1 C. M. & R. 919, 930 ; 5 Tyr. 458, S. 0. ; Ld. Dun- 
 raven V. Llewellyn, 15 Q. B. 791, 809 ; R. v. Sutton, 8 A. & E. 523, n. c ; 
 Curzon v. Lomax, 5 Esp. 60, per Ld. EUenborough ; Steel v. Prickett, 2 Stark. 
 E. 466, per Abbott, C. J. ; Roe v. Parker, 5 T. R. 32, per Grose, J. 
 
 2 Barraclough v. Johnson, 8 A. & E. 99, 108. 
 2 Gr. Ev. § 140, in part. 
 
 ■* Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J. 
 
CHAP. VIII.] DOCUMENTARY EVIDENCK OF REPUTATION — MAPS- 529 
 
 the immemorial customs of the manor, but which deed omitted all 
 mention of the particular custom in question, was strong evidence 
 of reputation to show that it did not exist at that day, and that 
 the subsequent usage relied upon in support of it was referable to 
 usurpation, and not to right.^ 
 
 § 621.^ It mil have been seen from several of the eases cited § 556 
 in this chapter, that oral declarations are not the sole medium of 
 proving traditionary reputation in matters of public and general 
 interest ; and, indeed, the principle of the exception applies 
 equally to documentary evidence, and to all other kinds of proof 
 denominated hearsay. Thus deeds,^ leases,* and other private 
 documents have been admitted, as declaratory of the public matters 
 recited in them. Even copies and abstracts of old deeds and wills ^ 
 have occasionally been used for the same purpose, but these are not 
 in themselves evidence of reputation, being merely admissible as 
 secondary evidence of the original instruments. It follows, there- 
 fore, that no such document can in strictness be received at all, 
 without some proof being furnished of the former existence and 
 present loss of the originals.^ 
 
 § 622. How far maps, showing the boundaries of counties, § 557 
 towns, parishes, or manors, will be admissible, is a question 
 respecting which some doubts exist. If such maps are not proved 
 to have been prepared by persons who were deputed to make 
 them by some one interested in the question, or who themselves 
 appear to have had some knowledge of their own on the subject, 
 
 1 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218, 239 — 241, 244. See D. 
 of Portland v. HiU, 2 Law Rep., Ec[. 765. 2 Gr. Ev. § 139, in part. 
 
 ' Curzon v. Lomax, 5 Esp. 60, per Ld. EUenborougli ; Brett v. Beales, M. & 
 M. 416, per Ld. Tenterden. 
 
 * Plaxton V. Dare, 10 B. & C. 17 ; 1 M. & R. 1, S. 0. ; Barnes v. Mawson, 
 1 M. & Sel. 78, 79 ; M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218 ; D. of 
 Beaufort v. Smith, 4 Ex. R. 471, 472, per Parke, B. 
 
 * See Shrewsbury Peer., 7 H. of L. Cas. 11, 12 ; Braye Peer., 6 01. & Fin. 
 757—767. 
 
 « See and compare Doe v. Skinner, 3 Ex. R. 84 ; Doe v. Wittcomb, 6 Ex. R. 
 601 ; S. C. in Dom. Proo. 4 H. of L. Cas. 425 ; and Perth Peer., 2 H. of L. 
 Cas. 865. 
 
530 MAPS — COURT ROLLS — PRESENTMENTS. [PART II. 
 
 or who at least are shown to haye been in some way connected 
 with the district, so as to make it probable that they possessed 
 the requisite information, they cannot be received, whatever their 
 age or apparent accuracy may be.^ If, however, proof be forth- 
 coming that they have been either made or recognised by persons 
 having adequate knowledge, they would seem, on principle, to be 
 vaKd evidence of reputation. Accordingly, upon the trial of an 
 indictment against a parish for the non-repair of a highway, where, 
 in order to show that the road in question was not within the 
 parish, a map was produced which had been made some thirty 
 years before by a surveyor, from information derived from an old 
 parishioner, who had pointed out to him the boundaries, Mr. 
 Justice Erskine held, that, if proof could be given of the old 
 man's death, the map would be admissible as evidence of reputa- 
 tion, though it came from the chest of the parish indicted.^ On 
 another occasion, also, maps appear to have been received as public 
 documents ; ^ but in an older case, where, in order to prove that the 
 locus in quo was a highway, a copper-plate map, which purported 
 on its face to have been taken by the direction of some former 
 churchwardens, and which it was proposed to prove was generally 
 received by the parish as authentic, was rejected by Lord Kenyon, 
 who observed, that " it would be equally improper to admit it, as 
 to admit a plan taken by the lord of the manor, who might thereby 
 crush and destroy the estate of his tenants."* It does not appear 
 in this case that the map was an ancient one, or that the church- 
 wardens, by whose direction it was drawn, were dead, and conse- 
 quently the decision is of the less authority. 
 
 § 623. AgaiQ, copies of court rolls, and especially presentments § 558 
 in manor courts,^ stating the customs or boundaries of a manor, — 
 depositions of conventionary tenants of a manor, taken in an 
 
 ' Hammond v. Bradstreet, 23 L. J., Ex. 332, per Ex. Cli. ; 10 Ex. R. 390, 
 S. C. See Pipe v. Fulcher, 28 L. J., Q. B. 12 ; 1 E. & E. Ill, S. C. 
 
 2 R. V. Milton, 1 C. & Kir. 58. 
 
 ^ Alcock V. Cook, per Tindal, C. J., cited 1 Pli. Ev. 251, n. 1. 
 
 •• Pollard V. Scott, Pea. E. 19. 
 
 * Evans «. Rees, 10 A. & E. 151 ; Roe v. Parker, 5 T. R. 26 ; Arundell v. 
 Ld. Ealmoutli, 2 M. & Sel. 441 ; Damerell v. Protlieroe, 10 Q. B. 20. 
 
CHAP. VIII.] VERDICTS — JUDGMENTS — DECREES. 531 
 
 authorised inquiry, and representing the rights of the lord/ — and 
 other similar documents, have been admitted as evidence of repu- 
 tation ; ^ though, unless it can be satisfactorily proved, or at least 
 reasonably inferred, that the proceedings were conducted in a legal 
 and regular manner, it will seldom be prudent to run the risk of a 
 new trial by tendering such evidence.^ 
 
 § 624. It has often been said that verdicts of juries, and judg- § 559 
 ments, decrees, and orders of courts of competent jurisdiction, are 
 evidence of reputation ;* and possibly, when juries were summoned 
 de vicineto, and were consequently assumed to be acquainted with 
 the subject in controversy,' this may have been a correct mode 
 of stating the ground on which verdicts were admitted ; though 
 it never could have been strictly accurate with respect to other 
 judicial documents, and though it does not apply, at the present 
 day, even to verdicts.^ Still, these documents, though not repu- 
 tation, are as good evidence as reputation ; '' and whatever be the 
 principle on which they are admitted, the rule has been established 
 by too many authorities to be now questioned,^ that, in all cases 
 involving matters of public or general interest, wherein reputation 
 is evidence, a verdict or a judgment upon the matter directly in 
 issue, though pronounced in a cause litigated between strangers 
 to the parties on the record, is also admissible ; not as tending to 
 prove (my specific fact existing at the time, but as evidence of the 
 most solemn kind, of an adjudication by a competent tribunal 
 upon the state of facts and the question of usage at the time.^ 
 Thus, for example, where a public right of way was in question, 
 
 ' Crease v. Barrett, 1 0. M. & E. 919 ; 5 Tyr. 458, S. C. ; Freeman v. 
 PMlipps, 4 M. & Sel. 486 ; Gee v. Ward, 7 E. & B. 509. 
 
 2 See Evans v. Taylor, 7 A. & E. 626, as explained in D. of Beairfort v. 
 Smith, 4 Ex. B. 450 ; and Daniel v. Wilkin, 7 Ex. K. 429. 
 
 3 See E. V. Leigh, 10 A. & E. 411. 
 
 * See post, § 1683. 
 
 * Pirn V. CureU, 6 M. & W. 254, per Alderson, B. 
 
 " Evans v. Eees, 10 A. & E. 153, per Patteaon & Coleridge, Js. ; Brisco v. 
 Lomax, 8 A. & E. 212, per Patteson, J. 
 '• Brisco V. Lomax, 8 A. & E. 211, per Littledale, J. 
 ' Evans v. Eees, 10 A. & E. 156, per Ld. Denman. 
 ' Pim V. CureU, 6 M. «Sc W. 266, per Ld. Abinger. 
 
 M M 2 
 
632 VEBDICTS AND JUDGMENTS EVID. OF EBPUTATION. [PART 11. 
 
 the plaintiff was allowed to show a verdict, rendered in his own 
 favour against a defendant in another suit, in which the same 
 right of way was in issue ; ^ and it matters not with respect to the 
 admissibility, though it may as to the weight, of such evidence, 
 that the judgment has been suffered by default, and, though of a 
 very recent date, is not supported by any proof of execution or of 
 the payment of damages ; ^ or even that the verdict, where a verdict 
 has been obtained, has not been followed up by any judgment or 
 decree.^ Neither is it material whether the verdict be pronounced 
 at Nisi Prius, or be the finding of a jury summoned under a com- 
 mission from a Duchy Court, or any other special commission ; 
 provided it can be proved, or can be inferred from the circum- 
 stances, that the inquiry was a lawful one.* 
 
 § 625. If, when the record is produced, a direct issue appears § 560 
 to have been raised on the right or custom in controversy, the 
 opponent vpill not be entitied to show that in fact no evidence was 
 given on that issue ; since the record is conclusive of the fact of 
 such a finding, though not of its truth as between other parties.^ 
 If the record contains no direct issue on the custom, the party 
 producing it must furnish some evidence to show that the custom 
 was really in question ; for, otherwise, the mere verdict would 
 prove nothing.^ In the case of the Earl of Carnarvon v. ViUebois, 
 which was an action by the lord of a manor against a copyholder 
 for trespassing on his free warren, an ancient judgment on a quo 
 warranto information filed by the Attorney- General against a former 
 lord, ia which the defendant pleaded, and the Attorney- General 
 confessed, a prescriptive title to the free warren as appurtenant to 
 the manor, was received in evidence for the plaintiff, as being the 
 judgment of a competent court upon a matter of a public nature 
 which concerned the Crown and the subject. The court observed 
 that " it was admissible on the same footing as an allowance before 
 
 ' Reed v. Jackson, 1 East, 355. See Petrie v. Nuttall, 11 Ex. E. 569. 
 
 2 Ld. Carnarvon v. ViUebois, 13 M. & W. 313, 329, 332. See R. v. Bright- 
 side Bierlow, 13 Q. B. 933. 
 
 3 Brisco V. Lomax, 8 A. & E. 198 ; 3 N. & P. 388, S. C. * Id. 
 ' Reed v. Jackson, 1 East, 355. 
 
 « Laybourn v. Crisp, 4 M. & W. 325, 326, per Ld. Abinger. 
 
CHAP. Tin.] DECREES AND OBDERS EVID. OF REPUTATION. 633 
 
 the Justices of Eyre, an inquisition post mortem, or an inquisition 
 issuing out of the Court of Exchequer to ascertain the extent of the 
 Crown lands." ^ 
 
 § 626. Decrees and orders of all competent tribunals stand upon § 561 
 the same footing as verdicts ; ^ and, therefore, orders of the com- 
 missioners of sewers requiring landowners to repair sea-walls, will, 
 on an issue respecting the liability of a party to make such repairs, 
 be evidence as adjudications by a court of competent jurisdiction ; 
 and the fact that they have been duly executed and acted upon will 
 be presumed, if they are of an ancient date.^ To render decrees 
 of the old Court of Chancery admissible, it is unnecessary to put 
 in the depositions to which they refer ; because, in equity, the 
 judge must have collected the questions in dispute from the bill 
 and answer only.* Still, a decree, to be evidence, must be Jinal ; 
 and mere interlocutory orders, not involving any judgment upon 
 the rights of the parties, cannot be received.^ So anxious are the 
 courts to confine this species of evidence within strict limits, that 
 they have rejected an award in a suit inter alios, though the cause 
 was referred by order of the judge at Nisi Prius.^ It seems 
 scarcely necessary to add, that no verdict, judgment, decree, or 
 order, can be received, if it appear that the parties pronouncing it 
 were acting without legal authority.''' 
 
 § 627. Although judgments and decrees, when tendered as § 562 
 evidence of reputation, must in general be proved either by pro- 
 ducing the originals or by examined copies, yet occasionally a 
 copy of a less authentic character will be received, provided it has 
 been dealt with by the party against whom it is tendered, or by 
 those through whom he claims, either as an authentic copy, in 
 
 1 13 M. & "W. 313, 331, per Parke, B. 
 
 2 See Layboum v. Crisp, 4 M. & "W. 326, per Parke, B. 
 
 3 R. V. Leigh, 10 A. & E. 398. 
 
 * Laybourn v. Crisp, 4 M. & W. 320, 326, 327. It seems that the depositions 
 may be read by the opposite party as his evidence, id. 
 
 5 Pirn V. Curell, 6 M. & "W. 234, 265—267. 
 
 6 Evans v. Bees, 10 A. & E. 151 ; 2 P. & D. 627, S. C. ; E. v. Cotton, 3 
 Camp. 444 ; Wenman v. Mackenzie, 5 E. & B. 447. 
 
 '! Rogers v. Wood, 2 B. & Ad. 245. 
 
534 DECLARiTIONS MADE ANTE LITEM MOTAM. [PART II. 
 
 which case it will be admissible as secondary evidence, or as a 
 paper containing a true statement of the custom or other subject- 
 matter of reputation in dispute, in which case it will be received as 
 primary proof. For instance, in Price v. Woodhouse,^ which was 
 an action of trespass by a copyholder against the lord of a manor, 
 where the question at issue turned on the existence or non-exist- 
 ence of a particular manorial custom, two documents were ten- 
 dered on behalf of the plaintiff. The first purported to be a 
 copy of an old decree of the Court of Chancery in a suit between 
 a copyholder and the lord, establishing the custom, and the court 
 held that, inasmuch as the document had been found among the 
 papers of a former deceased lord, that fact furnished some evidence 
 of its having been recognised as a true copy, and they conse- 
 quently allowed it to be read as secondary evidence of the decree, 
 proof having been given of an ineffectual search for the original. 
 They added, however, that it was inadmissible as primary evidence, 
 since the mere circumstance of its having been deposited among 
 the papers of the deceased lord was not such a dealing with it as to 
 be equivalent to an admission, upon the lord's part, that it con- 
 tained a true account of the customs of the manor. The second 
 document tendered in evidence was an ofBce copy of another decree, 
 and as there was some evidence to show that this had been given 
 to a witness by the lord as proof of the customs of the manor, the 
 court regarded it in the light of an admission, and held that it was 
 admissible as primary evidence of those customs. 
 
 § 628.^ It now becomes necessary to consider an important § 563 
 qualification of the exception under discussion, which is, that 
 declarations, to he admissible as evidence of reputation, must have 
 been made before any controversy arose touching the matter to which 
 they relate ; or, as it is usually expressed, ante litem motam. As 
 this qualification is not confined to matters of public and general 
 interest, but equally governs the admissibility of hearsay evidence 
 in matters of pedigree, it will be convenient to illustrate its 
 operation by referring indiscriminately to both these classes of 
 cases. Now, the ground on which the declarations of deceased 
 
 1 3 Ex. R 616. 2 Gr. Ev. § 131, in part. 
 
CHAP. VIII.] LIS MOTA — COMMENCEMENT OP CONTEOVEESY. 535 
 
 persons are admitted at all, is, that they are the natural eifusions 
 of a party who is presumed to know the real facts, and to speak 
 upon an occasion when his mind stands in an even position, 
 without any temptation to exceed or fall short of the truth.^ But 
 no m^n is presumed to he thus indifferent in regard to matters 
 in actual controversy ; for when the contest has begun, people 
 generally take part on the one side or the other ; their minds are 
 in a ferment ; and, if they are disposed to speak the truth, facts 
 are seen by them through a false medium. To avoid, therefore, 
 the mischiefs which would otherwise result, all ex pwrte declara- 
 tions, even those upon oath, are rejected, if they can be referred 
 to a date subsequent to the beginning of the controversy.^ 
 
 § 629.' This rule of evidence was familiar in the Eoman law ; 
 but the term lis mota was there applied strictly to the com- 
 mencement of the action, and was not referred to any earlier 
 period of the dispute.* But in our law, the term lis is taken in 
 the classical^ and larger sense of controversy ; and by Ks mota is 
 understood the commencement of the controversy, and not the 
 commencement of the suit.^ The commencement of the contro- 
 versy was, at one time, further defined by Mr. Baron Alderson to be 
 " the arising of that state of facts, on which the claim is founded, 
 without anything more;"'^ but this dictum, — though afterwards 
 upheld by Lord Cottenham,* — has since been overruled,^ and 
 
 ^ Per Ld. Bldon, in WMtelocke v. Baker, 13 Ves. 514 ; E. v. Cotton, 3 Camp. 
 446, per Dampier, J. 
 
 2 Berkeley Peer., 4 Camp. 401, 409, 413 ; Monkton v. Att.-Gen., 2 Russ. & 
 Myl. 160, 161 ; Eichards v. Bassett, 10 B. & C. 657. 
 
 3 Gr. Ev. § 131, in part. 
 
 '' Lis est, ut primum in jus, velin judicium ventum est; anteguam in judicium 
 reniatur, controversia est, non lis. Cujac. Op. Postli. torn. 5, col. 193, B., & col. 
 162, D. Lis inchoata est ordinataper libellum, et satisdationem, licet non sit lis 
 contesta. Corpus Juris Glossatum, tom. 1, col. 553, ad Dig. lib. iv. tit. 6, 1. 12. 
 Lis mota censetur, etiamsi solus actor egerit. Calv. Lex., Verl). Lis mota. 
 
 * " PMlosoplii setatem in litibus conterunt." — Cic. Cited by Lawrence, J., 
 in Berkeley Peer., 4 Camp. 411. 
 
 ^ Per Sir J. Mansfield, in Berkeley Peer., 4 Camp. 417 ; Monkton v. Att.- 
 Gen., 2 Euss. & Myl. 161. 
 
 7 Walker v. Beauckamp, 6 0. & P. 552, 561. 
 
 8 Davies v. Lowndes, 7 Scott, N. E. 198 ; 6 M. & Gr. 517, S. C. 
 
 9 Skedden v. Att.-Gen. & Patrick, 30 L. J., Pr. & Mat. 217 ; 2 Swab. & 
 
536 DOCTEINE OF LIS MOTA, WHAT IT EXCLUDES. [PART II. 
 
 it is now decided, that "there must be, not merely facts which 
 may lead to a dispute, but a Us mota, or suit, or controversy 
 preparatory to a suit, actually commenced, or dispute arisen, and 
 that upon the very same pedigree or subject-matter which con- 
 stitutes the question in litigation." ^ 
 
 § 630. It follows from the above explanation of lis mota, first, § 565 
 that declarations will not be rejected, in consequence of their 
 having been made with the express view of preventing disputes ; 
 secondly, that they are admissible, if no dispute has arisen, 
 though made in direct support of the title of the declarant ; and, 
 thirdly, that the mere fact of the declarant having stood, or 
 having believed that he stood, ia pari jure with the party relying 
 on the declaration, will not render his statement inadmissible. 
 In support of the first proposition, the Berkeley Peerage case 
 may be referred to, where the judges unanimously held, — in con- 
 formity with an earlier opinion expressed by Lord Mansfield,^ — that 
 an entry made by a father in any book, for the express purpose of 
 establishing the legitimacy of his son at the time of his birth, in 
 case the same should be called in question, will be receivable in 
 evidence, notwithstanding the professed view with which it was 
 made.^ This doctrine has since been sanctioned by Lords 
 Brougham* and Cottenham in England,^ and by Lord St. Leo- 
 nards in Ireland,^ and may now be considered as established law 
 in both countries. A leading decision in support of the second 
 proposition is the case of Doe v. Davies,'^ where the court observed, 
 that although a feeling of interest will often cast suspicion on 
 
 Trist. 170, S. C. ; Reilly v. Fitzgerald, 6 Ir. Eq. R. 335, 344r-349 ; 1 Druiy, 
 Cli. R. 120, 140—155, S. C. 
 
 1 Davies v. Lowndes, 7 Scott, N. R. 214, per Ld. Denman ; 6 M. & Gr. 528, 
 S. C. ; Shedden v. Att.-Gen. & Patrick, 30 L. J., Pr. & Mat. 217 ; 2 Swab. & 
 Trist. 170, S. C. ; Berkeley Peer., 4 Camp. 401 ; Slaney v. Wade, 1 Myl. & Or. 
 338, 356. See Butler v. Mountgarret, 7 H. of L. Gas. 633 ; Frederick v. Att.- 
 Gen., 44 L. J., Pr. & Mat. 1 ; Law Rep., 3 P. & D. 270, S. 0. 
 
 2 Goodriglit v. Moss, 2 Cowp. 591. s 4 Camp. 418. 
 ■• Monkton v. Att.-Gen., 2 Russ. & Myl. 147, 160, 161, 164. 
 
 ' Slaney v. Wade, 1 Myl. & Or. 338. 
 
 " Reilly v. Fitzgerald, 6 Ir. Eq. R. 335, 344—349. 
 
 ' 10 Q. B. 314, 325. 
 
CHAP. VIII.] DOCTRINE OF LIS MOTA, WHAT IT EXCLUDES. 537 
 
 declarations, it has never been held to render them inadmissible. 
 , The third proposition is equally clear law ; for, although one 
 peerage case appears at first sight to throw some doubt upon the 
 subject,'' yet it is highly probable that the pedigree was there 
 rejected, not as having been made by a party while standing in 
 the same situation as the claimant, but as having been concocted 
 by such person in direct contemplation of himself laying claim to 
 the dignity. 
 
 § 631. But even if the case be not susceptible of this explana- § 566 
 tion, a single isolated decision can scarcely controvert a rule of law, 
 which has been sanctioned and acted upon by numerous judges,^ 
 and which is so founded on reason, that a contrary doctrine would 
 go far towards excluding all evidence of reputation. For in- 
 stance, in cases of public and general interest, the rejection of 
 such evidence would be wholly inconsistent with the rule, which 
 requires the statement to have been made by some person having 
 competent knowledge of the subject;' and in cases of pedigree, 
 though the result of excluding declarations of persons in pari 
 jiire would not be equally mischievous, it would frequently have 
 the effect of drying up sources of information, which would be 
 highly valuable in the investigation of truth. In any one of the 
 three classes of declarations just mentioned, it is very possible 
 that the declarant may have had some secret wish or bias, which 
 may have induced him to make a statement either partially or 
 totally false ; but the same observation might apply to all evidence 
 of this nature, and its weight in each particular case must be 
 determined by the jury. 
 
 § 632.* That clause of the rule under consideration, which re- § 567 
 
 1 ZoTioh. Peer., Pr. Min. 207. 
 
 " Moseley v. Davies, 11 Price, 162, 179, per Graham, B. ; Harwood v. Sims, 
 Wightw. 112 ; Deacle v. Hancock, 13 Price, 236, 237 ; Moniton v. Att.-Gen., 
 2 Russ. & Myl. 159, 160, per Ld. Brougham ; Freeman v. Phillipps, 4 M. & 
 Sel. 486, 491, per Ld. Ellenborough, cited -witli approbation by Ld. Lyndhiirst, 
 C. B., in Davies v. Morgan, 1 C. & J. 593, 594; Nicholls v. Parker, 14 East, 
 -331, n. ; Doe v. Tarver, Ry. & M. 141, 142, per Abbott, C. J. 
 
 3 Ante, §§ 610, 611. " Gr. Ev. § 132, in part. 
 
538 DOCTEINE OF LIS MOTA. [PABT II. 
 
 quires that the dispute should have related to the particular subject 
 in issue, is based on sound sense ; for, although the existence of . 
 such a controversy may reasonably be expected to render turbid the 
 fountain of evidence, the mere discussion of other topics, however 
 similar they may be in their general nature to the real matter in 
 dispute, does not necessarily lead to the inference that that matter 
 was controverted, and therefore is not deemed sufficient to exclude 
 declarations made during that discussion as evidence of reputation. 
 Thus, in a suit between a copyholder and the lord, where the point 
 in issue was, whether a certain customary fine was to be assessed 
 by the jury of the lord's court ; depositions taken in an ancient suit 
 against a former lord, where the controversy turned on the amount 
 of such fine, in which depositions the fine was mentioned as asses- 
 sible by the lord, were admitted as evidence to negative the existence 
 of any custom for the jury to interfere.-^ In that case, one of the 
 learned judges observed, that " the distinction had been correctly 
 taken, that where the lis mota was on the very point, the declara- 
 tions of persons would not be evidence ; because you cannot be sure, 
 that in admitting the depositions of witnesses, selected and brought 
 forward on a particular side of the question, who embark to a certain 
 degree with the feelings and prejudices belonging to that particular 
 side, you are drawing evidence from perfectly unpolluted sources. 
 But where the point in controversy is foreign to that which was 
 before controverted, there never has been a Us mota, and, conse- 
 quently, the objection does not apply." ^ 
 
 § 633. It is not, however, necessary that the former controversy s 568 
 should have been between the same parties, or should have related 
 to the same property or claim, provided it appears that the matters, 
 respecting which the declarations offered in evidence on the second 
 trial were made, were in the former dispute really under discus- 
 sion ; and, therefore, in the Berkeley Peerage case, — ^where the - 
 question before the Committee of Privileges respected the legiti- 
 macy of the claimant, and this turned on the fact whether his 
 
 1 Freeman v. Phillipps, 4 M. & Sel. 486 ; Elliott v. Piersol, 1 Pet. 328, 337. 
 
 2 Freeman v. Phillipps, 4 M. & Sel. 497, per Bayley, J. See, also, Gee v. 
 Ward, 7 E. & B. 509. 
 
CHAP. VIII.] DECLABATI0N6 MADE POST LITEM MOTAM. 539 
 
 parents, who had married after his birth, and had subsequently 
 had several children, had likewise been privately married two 
 years before he was born ; — a deposition of the father, wherein he 
 swore positively to the fact of the first marriage, was rejected, it 
 having been taken some years before, in a suit instituted by the 
 claimant and three of his brothers born before the second marriage 
 against the other children born after that event, for the purpose 
 of perpetuating the testimony of the legitimacy of the former, 
 who claimed in that character to be entitled in remainder to an 
 estate then held by the father.^ So, in the Sussex Peerage case, 
 where the claimant. Colonel d'Este, was required to prove that 
 his parents, the Duke of Sussex and Lady Augusta Murray, were 
 legally married, declarations contained in the Duke's will and 
 af&rmiag most solemnly the fact of marriage, as also statements 
 to the same effect made by his Eoyal Highness in conversation, 
 were rejected ; it appearing that some years previously to such 
 declarations and statements being made, a suit had been instituted 
 by the Crown to annul the Prince's marriage, and it not being 
 shown, as in truth it could not be, that that marriage was not 
 the very marriage on which the claimant rehed.^ 
 
 § 634. It is now finally decided, that declarations, made after § 569 
 the controversy has originated, are in aU events to be excluded, 
 even though proof be offered that the existence of the controversy 
 was not known to the declarant.^ This rule may, no doubt, at 
 times operate oppressively ; but its justification, if it can be justi- 
 fied, must rest on the ground, that, "If an inquiry were to be in- 
 stituted in each instance, whether the existence of the controversy 
 was or was not known at the time of the declaration, much time 
 would be wasted, and great confusion would be produced."* 
 
 1 4 Camp. 401. 2 n ci. & Fin. 85, 99—103. 
 
 •'' Shedden v. Att.-Gen. & Patrick, 30 L. J., Pr. & Mat. 217 ; 2 Swab. 
 Trist. 170, S. C. 
 
 ■■ Berkeley Peer., 4 Camp. 417, per Sir J. Mansfield. 
 
540 HEARSAY ADMISSIBLE IN QUESTIONS OF PEDIGREE. [PABT II. 
 
 CHAPTER IX. 
 
 MATTERS OF PEDIGREE. 
 
 § 635. Questions of pedigree form the second exception to § 571 
 the general rule rejecting hearsay evidence. This exception has 
 been recognised on the ground of necessity ; for as, in inquiries 
 respecting relationship or descent, facts must often be proved which 
 occurred many years before the trial, and were known but to few 
 persons, it is obvious that the strict enforcement of the ordinary 
 rules of evidence in cases of this nature would frequently occasion 
 a grievous failure of justice. Courts of law have therefore so far 
 relaxed these rules in matters of pedigree, as to allow parties to 
 have recourse to traditional evidence ; often the sole species of proof 
 which can be obtained. Still, it is not considered safe to admit 
 such evidence without qualification ; and though it was long doubt- 
 ful whether the declarations of servants, friends, and neighbours, 
 might not be received, the settled rule of admission is now restricted 
 to hearsay proceeding from persons who were de jure related by 
 hlood or marriage to the family in question, and who, consequently, 
 may be supposed to have had the greatest interest in seeking, the 
 best opportunities for obtaining, and the least reason for falsifying, 
 information on the subject.^ 
 
 § 636. So far as blood relations are concerned, no limitation in § 572 
 the above rule has ever been recognised ; ^ but with regard to 
 
 1 Johnson v. Lawson, 2 Bing. 86 ; 9 Moore, 183, S. C. ; Crease v. Barrett, 
 1 0. M. & R. 928 ; Vowles v. Young, 13 Ves. 147, per Ld. Erskine ; Good- 
 right V. Moss, 2 Cowp. 594, per Ld. Mansfield, as explained by Ld. Eldon 
 in Whitelocke v. Baker, 13 Ves. 514 ; Monkton v. Att.-Gen., 2 Russ. & 
 Myl. 159, per Ld. Brougham ; Stafford Peer. 1825, Pr. Min. p. 4 ; Jewell v. 
 Jewell, 1 Howard, S. Ct. R. 231 ; 17 Pet. 213, S. C. ; Jackson v. Browner, 
 18 Johns. 37 ; Chapman v. Chapman, 2 Conn. 347 ; Waldron v. Tuttle, 4 New 
 Hump. 371. 
 
 ^ Davies v. Lowndes, 7 Scott, N. R. 188, per Parke, B. ; Shrewsbury Peer., 
 7 H. of L. Cas. 23, per Ld. Wensleydale. 
 
CHAP. IX.] AKE DECLARATIONS OF BASTAEDS ADMISSIBLE ? 541 
 
 relationship by affinity, some lawyers, used to imagine that the rule 
 was confined to declarations by a husband respecting the state of 
 his wife's family.^ It is now however distinctly decided, that this 
 view of the law is too narrow, and that no valid argument can be 
 urged against the admissibility of a wife's declarations concerning 
 her husband's relatives.^ Still, the law will not be further relaxed, 
 even in favour of statements made by the wife's father ; ^ and so 
 strictly has the limitation of the rule been enforced in modern 
 times, that the declaration of an illegitimate member of a family, 
 asserting that one of his natural brothers had died without issue, 
 has been rejected.* So, also, the court has refused to admit a 
 declaration by one brother that another brother has had an illegiti- 
 mate son.^ In an older case,^ where the question was whether an 
 elder son, who had taken possession of the paternal estates, and 
 conveyed them to one of the litigants, was born in wedlock, his own 
 declaration that he was a bastard, though made subsequently to the 
 conveyance, was, after his death, received by Mr. Justice Le Blanc. 
 The learned judge appears to have considered this statement ad- 
 missible, " as the representation of one of the family of the degree 
 of relationship he bore to it; " but if the case just cited be law, — as 
 it would probably be deemed at the present day, — the decision can 
 scarcely rest upon this ground, unless the special circumstances of 
 the case be prayed in aid ; and it be contended, that, since the 
 defendant's claim rested on the legitimacy of the vendor, he could 
 not object to the vendor's declaration, without relinquishing the only 
 prop of his title. Should this refined argument be deemed incon- 
 clusive, perhaps the admissibility of the declaration might be sus- 
 tained, on the ground that the cause turned, not only on the con- 
 dition of the father's family, but on the actual status of the declarant 
 himself; but here we are met by the difficulty, that the son could 
 
 1 Davies v. Lowndes, 7 Scott, N. E. 188, per Parke, B. ; S. C. p. 212. 
 
 2 Shrewsbury Peer., 7 H. of L. Cas. 23, 26. 
 ' Id. 25. 
 
 ' Doe V. Barton, 2 M. & Rob. 28, per Patteson, J. See Doe v. Davies, 10 
 Q. B. 314. 
 
 5 Crispin v. Doglioni, 32 L. J., Pr. & Mat, 109 ; 3 Swab. & Trist. 44, S. C. 
 
 ' Cooke V. Lloyd, Pea. Ev. App. xxviii., per Le Blanc, J. See Hitcliins v. 
 Eardley, 2 Law Rep., P. & D. 248 ; 40 L. J., Pr. & Mat. 70, S. C. 
 
542 DECLARATIONS OF HUSBAND AFTEB WIPE's DEATH. [PAET II. 
 
 only have known the fact of his own illegitimacy by information 
 received from others ; and, as a bastard has in the eye of the law 
 no relatives, the hearsay must have been derived from strangers, 
 and its admissibility might on that ground be questioned. 
 
 § 637. On the whole, it may be considered as a point of great § 573 
 doubt, whether, under any circumstances, the declarations of a 
 person deceased, asserting his own illegitimacy, can be received ; 
 excepting as admissions against himself and those who claim under 
 him by some title derived subsequently to the statements being 
 inade.^ In the case referred to above,^ evidence was received that 
 the father had specified the time of his marriage, had declared his 
 eldest son to have been born before that date, had heaped upon him 
 opprobrious epithets implying illegitimacy, and had on his death- 
 bed pointed to his younger son as his heir ; and these declarations 
 would seem to have been clearly admissible, if not as directly prov- 
 ing the bastardy of a person, who, though de facto his son, was de 
 jure a stranger to him, at least as showing the position of the 
 legitimate portion of his family, through whom the plaintiff claimed 
 his title.^ It may be observed, by way of caution, that had the de- 
 clarations of the father been confined to a general statement that his 
 eldest son was illegitimate, they might possibly have been rejected ; 
 for as such statements might have been made in consequence of 
 non-access after marriage, they would seem to fall within the rule of 
 law, which perhaps still* precludes parents from giving testimony 
 to bastardise their issue born during wedlock.^ 
 
 § 638. If a man has once been connected with a family by mar- § 574 
 riage, the death of his wife will not dissolve that connexion, so as 
 to render inadmissible declarations subsequently made by him ; and 
 therefore where, in a case of pedigree, a witness was asked whether 
 
 1 See E. V. Rishwortli, 2 Q. B. 487, per Wightman, J. ; and Proo. Gen. v. 
 Williams, 31 L. J., Pr. & Mat. 157, per Sir C. Cresswell ; S. C. nom. Dyke v. 
 Williams, In re Mary Emsley, 2 Swab. & Trist. 491. 
 
 ^ See n. 6, ante, p. 541. 
 
 ^ See Goodriglit v. Moss, 2 Cowp. 593, 594, per Ld. Mansfield. 
 
 ^ See post, § 950. s -^ „_ Stourton, 5 A. & E. 180. 
 
CHAP. IX.] HEAESAY ON HEARSAY GENEEAL REPUTE IN FAMILY. 543 
 
 lie had not heard a husband since deceased state,' after his wife's 
 death, that she was illegitimate, the answer was received, though 
 the counsel decHned to put the further question, whether the hus- 
 band had derived his information from the wife during the cover- 
 ture.^ The court presumed in this case that the knowledge must 
 have been obtained by the husband whilst he was a member of the 
 family.^ 
 
 § 639. Again, no valid objection can be taken to evidence of this § 575 
 kind, on the ground that it is hearsay upon hearsay, provided all 
 the declarations come from different members of the same family, 
 or do not directly appear to have been derived from strangers.^ 
 Thus, the declarations of a deceased widow, respecting a statement 
 which her husband had made to her, as to who his cousins were, — 
 as also the declaration of a relative, in which he asserts generally 
 that he has heard what he states, — have been received. If this 
 were not so, the main object of relaxing the ordinary rules of evi- 
 dence would be frustrated, since it seldom happens that the declara- 
 tions of deceased relatives embrace matters within their own personal 
 Imowledge.* Even general repute in the family, proved by the tes- 
 timony of a surviving member of it, has been considered as falling 
 within the rule.^ Moreover, it is not necessary to show that the 
 declarations were contemporaneous with the events to which they 
 relate ; for, as Lord Brougham has well observed, such a restriction 
 " would defeat the purpose for which hearsay in pedigree is let in, 
 by preventing it from ever going back beyond the hfetime of the 
 person whose declaration is to be adduced in evidence;" and, — ^to use 
 a homely illustration, — it would even render inadmissible the state- 
 
 ' Vowles V. Young, 13 Ves. 140, per Ld. Erskine ; Doe ^i. Haxvey, Ey. & M. 
 297, per Littledale, J. But see observations ia last section, 
 
 2 Per Burrough, J., in Johnson v. Lawson, 2 Bing. 92 ; 9 Moore, 194, S. C. 
 
 ' Shedden ». Att-Gen. & Patrick, 30 L. J., Pr. & Ma;t. 217, 231, 232. 
 
 * Doe ®. Eandall, 2 M. & P. 20 ; Monkton v. Att.-Gen., 2 Russ. & Myl. 165, 
 166, per Ld. Broiigham ; Slaney v. "Wade, 7 Sim. 611, per Shad-Hrell, V.-C. ; 
 1 Myl. & Or. 355, S. 0.,. per Ld. Cotteniam. See Robaon v. Att.-Gen., 10 
 CI. & Fin. 500—503, and Davies v. Lowndes, 7 Scott, N. E. 211—213 ; 6 M. 
 & Gr. 525, 527, S. C. See post §§ 655, 656. 
 
 5 Doe V. Griffin, 15 East, 293 ; B. N. P. 295 ; Shedden v. Att.-Gen. & 
 Patrick, 30 L. J., Pr. & Mat. 217, 231, 232. 
 
544 RELATIONSHIP OF DECLAEANT MUST BE PEOVED. [PAET II, 
 
 ment of a deceasisd person as to the maiden name of his own grand- 
 mother.^ 
 
 § 640. Before a declaration can be admitted in evidence, the § 576 
 relationship of the declarant with the family must be established by 
 some proof independent of the declaration itself;^ and although, 
 ■ in tracing ancient pedigrees, the court would probably be satisfied 
 with slight evidence on this head, since the connection of the 
 declarant with the family might be equally difficult of proof with 
 the very fact in controversy; yet some evidence would certainly 
 be required; for, otherwise, a stranger, by claiming alliance with 
 a family, and then making statements respecting it, might assume 
 to himself the power, after death, of materially altering the relative 
 rights of its several branches.' It seems, however, unnecessary 
 to show the exact degree of relationship that subsists between 
 the declarant and the person respecting whom the declarations 
 are tendered, but it wUl be sufficient to prove that they were in 
 some manner connected by blood or marriage ; * and if the question 
 be whether any, or what, relationship subsists between two sup- 
 posed branches of the same family, it is only necessary to establish 
 the connexion of the declarant with either branch.^ It has, indeed, 
 been urged, that proof must be given connecting the declarant with 
 both branches ; but this proposition involves the absurdity, that 
 if such a Hmitation were allowed, the declarations would be super- 
 fluous, as merely tending to prove a connexion, which, by showing 
 
 1 Monkton v. Att.-Gen., 2 Russ. & Myl. 157, 158 ; Lovat Peer., Pr. 
 Mill. 89. 
 
 ' Monkton v. Att.-Gen., 2 Russ. & Myl. 156, 157 ; Bantury Peer., 2 Selw. 
 N. P. 754, 8th ed. ; per Ld. Eldon in Berkeley Peer., 4 Camp. 419 ; Leigh 
 Peer., Pr. Min. 307 ; Stafford Peer., 1825, Pr. Min. 5 ; R. b. AU Saints, 7 B. 
 & C. 789, per Bayley, J. ; Davies v. Morgan, 1 C. & J. 591, per id. ; Att.-Gen. 
 V. Kohler, 9 H. of L. Cas. 660, 669, 670, 684, 685 ; Plant v. Taylor, 7 H. & N. 
 211, 227, 237 ; Proc.-Gen. v. WiUiams, 31 L. J., Pr. & Mat. 157 ; S. C. nom. 
 Dyke v. Williams, In re Mary Emsley, 2 Swab. & Trist. 491. 
 
 3 See Doe v. Randall, 2 M. & P. 24, per Best, C. J. 
 
 ■• See Vowles v. Yonng, 13 Ves. 147. 
 
 * Monkton v. Att.-Gen., 2 Russ. & Myl. 157, per Ld. Brougham. See 
 Smith V. Tebhitt, 1 Law Eep., P. & D. 354 ; 36 L. J., Pr. & Mat. 3.5, S. C. 
 
CHAP. IX.] DECLABONS. INADMISSIBLE DURING DECLARANT'S LIFE. 545 
 
 that the declarant was related to both branches, had already been 
 established.^ 
 
 § 641. Though hearsay evidence is admitted in cases of pedi- § 577 
 gree, on the assumption that no better evidence can be procured, 
 yet, the rule being once established, such evidence will not be re- 
 jected, though living witnesses might have been called to prove 
 the very facts to which it relates.^ Thus, the declarations of a 
 deceased mother, as to the time of the birth of her son, have been 
 received, though the father was hving and was not called.* Still, 
 if the declarant himself be alive, and capable of being examined, 
 his declarations will be rejected;* and, conse'quently, it lies upon 
 the party, who seeks to avail himself of this species of evidence, 
 to prove the declarant's death. In a modern case of great interest 
 in Ireland, where, in order to establish a Scotch marriage, a rela- 
 tive of the supposed husband had been asked at the trial what 
 she had heard on the subject from members of the family, her 
 answer was held by the Court of Error to have been rightly re- 
 jected, on the ground that the question had not been liinited to 
 statements made by deceased relatives.^ Another qualification, 
 restricting the admission of hearsay evidence in matters of pedi- 
 gree, has already been pointed out and discussed in the last 
 chapter; we allude to the rule rejecting all hearsay declarations 
 which are made post litem motam.^ 
 
 § 642.'' The term pedigree embraces not only general questions § 578 
 of descent and relationship, but also the particular facts of birth, 
 marriage, and death, and the times^ when, either absolutely or 
 relatively, these events happened, provided such facts are required 
 
 > Monkton v. Att.-Gen., 2 Russ. & Myl. 157, per Ld. Brougliam. 
 
 2 1 Ph. Ev. 212. 
 
 3 E. V. BiimiDgliam, cited in Hubb., Ev. of Sue. 660. 
 ■• Pendrell v. Pendrell, 2 Str. 924. 
 
 5 Butler V. Moimtgarret, 6 Ir. Law R., N. S. 77 ; 7 H. of L. Cas. 633, S. 0. 
 in Dona. Proc. 
 
 6 Ante, §§ 628—634 ; Butler v. Mountgarret, 6 Ir. Law R., N. S. 77 ; 7 H. 
 of L. Cas. 633, S. C. in Dom. Proo. 
 
 ' Gr. Ev. § 104, as to first four lines, in part. 
 " Betty V. Nail, 6 Ir. Law R. N. S. 17. 
 
 N N 
 
546 BIKTH, MAEEIAGE, DEATH, PROVABLE BY HEARSAY. [PAET II. 
 
 to be proved for some genealogical purpose.^ All these facts, 
 therefore, may, in any genealogical inquiry, be established by 
 hearsay derived from relatives, though, with respect to specific 
 dates, some doubts have been entertained as to the extent and 
 application of the rule. Thus, on a trial of an issue out of 
 Chancery, Chief Justice Tindal had rejected the declarations of 
 deceased persons, which were tendered to prove the ages of their 
 relatives, on the ground that, though admissible for the purpose 
 of showing the relationship, they could not be received as proof 
 of particular facts, such as the ages of parties.^ The authority, 
 however, of this decision has been much shaken ; for when it was 
 brought before Lord Brougham on a motion for a new trial, his 
 lordship intimated a very strong opinion in favour of the admis- 
 sibility of the evidence, and subsequently stated that Mr. Justice 
 Parke and Mr. Justice Littledale, to whom he had submitted the 
 point, entirely concurred in the view he had taken.^ If to these 
 high authorities be added several old and some modern decisions 
 expressly in point,'' the dicta of judges,' the opinions of text writers,^ 
 and the general practice of the profession, the student will pro- 
 bably be justifi.ed in concluding that the proposition contended for 
 by Chief Justice Tindal is not law. 
 
 § 643. It may be urged that, as hearsay evidence of particular § 579 
 facts is inadmissible in support of pubhc rights,^ the same rule 
 should prevail in matters of pedigree ; but, in the Berkeley 
 Peerage case. Sir James Mansfield drew a distinction between 
 these two subjects of inquiry, which appears to put the law in 
 
 ^ As to tMs proviso, see post, § 645. 
 
 2 Kidney v. Cockbum, 2 Ruaa. & Iilyl. 168. 3 Id. 170, 171. 
 
 * Herbert v. Tuckal, T. Eay. 84 ; recognised by Ld. Ellenboroiigb in Eoe 
 V. Eawlings, 7 East, 290 ; case cited in 1 Ph. Ev. 214, from Vin. Ab., Ev. 
 T. b. 91 ; Vulliamy v. Huskisson, 3 Y. & C, Ex. R 82, per Ld. Abinger ; 
 Eyder d. Malborne, cited 2 Euss. & Myl. 169, as a decision by Littledale, J. 
 
 ^ Per Ld. Mansfield, in Goodright v. Moss, 2 Cowp. 594 ; per Ld. Brougham, 
 in Monkton v. Att-Gen., 2 Euss. & MyL 156 ; per K. Brace, V.-C., in Sliiehls 
 V. Boucher, 1 De Gex & Sm. 51 ; per Pollock, C. B., in Plant v. Taylor, 7 
 H. & N. 226. 
 
 * 1 Ph. Ev. 213 ; Hubb. Ev. of Sue. 649 ; 3 St. Ev. 841. 
 ' Ante, § 617. 
 
CHAP. IX.J HEARSAY OP PAETICULAR FACTS, WHEN ADMISSIBLE. 547 
 
 its proper light. "In cases of general right," said his lordship, 
 "which depend upon immemorial usage, living witnesses can only 
 speak of their own knowledge to what passed in their own time ; 
 and to supply the deficiency, the law receiyes the declarations of 
 persons who are dead. There, however, the witness is only allowed 
 to speak to what he has heard the dead man say respecting the 
 reputation of the right of way, or of common, or the like. A 
 declaration with regard to a particular fact, which would support 
 or negative the right, is inadmissible. In matters of pedigree, it 
 being impossible to prove by living witnesses the relationships of 
 past generations, the declarations of deceased members of the 
 family are admitted ; but here, as the reputation must proceed on 
 particular facts, such as marriages, births and the like, from the 
 necessity of the thing, the hearsay of the family as to these par- 
 ticular facts is not excluded. General rights are naturally talked 
 of in the neighbourhood ; and the family transactions among the 
 relations of the parties. Therefore, what is thus dropped in con- 
 versation upon such subjects may be presumed to be true."^ 
 
 § 644. Still, the hearsay evidence must, it seems, be confined § 580 
 to such facts as are immediately connected with the question of 
 pedigree ; and declarations as to independent facts, from which 
 the date of a genealogical event may be inferred, will probably be 
 rejected. It is not easy to express this limitation of the rule in 
 intelligible language, but the following cases will explain its pur- 
 port. In a question of legitimacy, turning upon the time of birth, 
 ■ a declaration by the deceased sister of the alleged bastard's mother 
 stating that she had suckled the child, was tendered in evidence ; 
 and being coupled with the proof of the time when her own child 
 was born, it tended to fix the alleged bastard's birth at a period 
 subsequent to its parent's marriage. Mr. Baron Gurney admitted 
 this evidence ; but Lord Cottenham expressed an opinion that he 
 was wrong in so doing.^ In another case,^ where the question 
 turned on the relative seniority of three sons, born at a birth 
 
 1 4 Camp. 415, 416. 
 
 " Isaac V. Gompertz, cited in Hubb. Ev. of Sue. 650. 
 
 ^ Vin. Ab., Ev. T. b. 91 ; probably refeiTed to, as Spadwell v. , by 
 
 Lawrence, J., in the Berkeley Peer., 4 Camp. 410. 
 
 N N 2 
 
548 HEAESAY AS TO PEDIGREE, WHEN ADMISSIBLE. [PAET II. 
 
 declarations by the father that he had christened them Stephanns, 
 Fortunatus, and Achaicus, according to the order of the names in 
 St. Paul's First Epistle to the Corinthians/ for the purpose of 
 distinguishing their seniority, as also declarations by an aunt, who 
 was present at the confinement, and who, with a similar object, 
 had tied strings round the arms of the second and third child, 
 were admitted. The distinction between these two cases is clear. 
 In the former, the fact of suckling the child had no direct bearing 
 on its age or legitimacy, but was only a species of circumstantial 
 evidence from which these facts might be inferred ; whereas in 
 the latter, the christening and the tying strings round the arms 
 of the children were intended from the first to afford the means of 
 ascertaining their relative seniority. 
 
 § 645. Although, as Mr. Phillipps justly observes, " there ap- § 581 
 pears to be no foundation for any distinction between cases where a 
 matter of pedigree is the direct subject of the suit, and other cases 
 where it occurs incidentally,"^ yet the declarations of relatives will 
 not necessarily be admissible whenever the birth, marriage, or death 
 of a party forms the subject of controversy ; but such proof would 
 seem to be confined to cases, which directly or indirectly involve 
 some question of relationship, and in which the fact sought to be 
 established by hearsay is required to be proved for some genealogical 
 purpose.^ For instance, if an action for use and occupation be 
 brought by a reversioner against a tenant pour autre vie, who has 
 held over after the death of his cestui que vie, the fact of the death 
 must be proved by the plaintiff in the ordinary way, and the hear- ' 
 say of relatives will be inadmissible.* So, in support of a plea of 
 infancy, letters written by the deceased father of the defendant 
 cannot be read as proof of the date of his son's birth. ^ So, in E. v. 
 Frith, ^ it was distinctly held, that the declarations of a deceased 
 
 ' Ch. 16, V. 17. ^ 1 Ph. Ev. 216, n. 5. 
 
 ■> Shields 2;. Boucher, 1 De Gex & Sm. 40, per K. Bruce, V.-C. See Smith 
 V. Smith, I. E. 10 Eq. 273. 
 
 « Whittuck V. Waters, 4 C. & P. 376, per Park, J. 
 
 ^ Figg V. Wedderburne, 6 Jur. 218, per Patteson, J. 
 
 ° 8 East, 539. In this case the child was a bastard, and the declarations of 
 his putative father would therefore have been inadmissible even on a question 
 of pedigree, but this point was not raised. See ante, §§ 636, 637. 
 
CHAP. IX. 1 HEARSAY EVIDENCE OF LOCALITY. 549 
 
 father as to the place where his child was born, could not be received 
 as evidence of the birth settlement of the child.'^ 
 
 § 646. The case of E. v. Erith^ has repeatedly been cited as § 582 
 an authority for the proposition, that, even in a strict question of 
 pedigree, hearsay evidence of locality, — or, in other words, the 
 declarations of deceased persons respecting the places where their 
 relatives were born, and where they naarried, resided, came from, 
 went to, or died, — cannot be received ; but certainly, as was once 
 pointed out by Vice- Chancellor Knight Bruce, ^ the case decides no 
 such point, since Lord EUenborough carefully rested his judgment 
 on the fact, that no question whatsoever of relationship was in- 
 volved in the inquiry. Had, therefore, the evidence tendered in 
 that case been required for any genealogical purpose, it is very pos- 
 sible that the Court of King's Bench would have arrived at a 
 different conclusion ; and, indeed, this may be considered as a highly 
 probable hypothesis, inasmuch as hearsay evidence of locality has 
 on several occasions been admitted to elucidate matters of strict 
 pedigree. 
 
 § 647. Thus, in Hood v. Lady Beauchamp,* where the question § 582 
 was, whether A. B., an ancestor of the declarant C, was the same 
 person as A. B., a blacksmith, who had resided at X., a declaration 
 by C. that his ancestor was a blacksmith, and that he resided at X., 
 was received in evidence by Vice- Chancellor Shadwell. So, in 
 Shields v. Boucher,^ Vice- Chancellor Knight Bruce, in a very ela- 
 
 1 Strenuous efforts were formerly made to render the declarations of deceased 
 persons admissiUe in proof of particulars respecting their settlements ; but 
 these efforts have long since failed. See E. v. ErisweU, 3 T. E. 707 ; R. v. 
 Chadderton, 2 East, 29 ; E. v. Ferry Frystone, id. 55 ; R. v. AbergwiUy, 
 id. 63. 2 8 East, 539. 
 
 3 Shields v. Boucher, 1 De Qex & Sm. 50, 56. 
 ^ Hubb. Ev. of Sue. 468. 
 
 = 1 De Gex & Sm. 40. In this case an issue had been directed out of Chan, 
 to ascertain the relationship of certain parties, and on the trial all the questions 
 put in the text, except the last, had been rejected by Wilde, C. J. On a 
 motion for a new trial, K. Bruce, V.-C, expressed his opinion that the Ch. 
 Just, was wrong in rejecting the evidence, but it ultimately became unneces- 
 sary to decide the point. The V.-Chancellor's iudgment is a very masterly 
 prodiiction, and deserves an attentive perusal. 
 
550 FORMS OP HEARSAY ORAL DECLARATIONS. [PART II. 
 
 borate judgment, intimated a strong opinion, that, in a controversy 
 merely genealogical, declarations made by a deceased person as to 
 where he or his family came from, " of what place " his father was 
 designated, and what occupation his father followed, would be ad- 
 missible, and might be most material evidence for the purpose of 
 identifying and individualising the person and family under discus- 
 sion. Again, if it be necessary to show, that a family had relations 
 who lived at a particular place, declarations by a deceased member 
 of the family, that " he was going to visit his relatives at that 
 place," Tvill be evidence ; not, indeed, that he went there, or that 
 any person of his name lived in that neighbourhood ; but as proving 
 a tradition in the family, that they once had relations living in 
 the place in question, which tradition, in the event of its being 
 shown by other evidence that persons of the same name had re- 
 sided there, might be important as a mode of identifying those 
 persons with the branch of the family alluded to.^ So, evidence has 
 been received of a family tradition, that a particular individual died 
 in India, for the purpose of connecting that individual with the 
 family of the claimant.^ 
 
 § 648. The forms, under which hearsay evidence in matters of § 533 
 pedigree may be presented, are very numerous. First may be 
 noticed the oral declarations of deceased relatives. These are 
 clearly admissible if made ante litem motam, though they are 
 seldom entitled to any great weight ; for not only are they gene- 
 rally sought to be established by connexions of the family or 
 other persons interested in the result of the litigation, but they 
 are often recorded or remembered for the first time after the 
 contest has arisen. In these cases the court necessarily runs 
 considerable risk of being deceived by deliberate falsehood, for it 
 is obviously difficult, not to say impossible, to convict a witness 
 of perjury in narrating what he alleges that he heard in a con- 
 versation with a deceased person.^ And, even assuming that the 
 sincerity of the witness cannot reasonably be doubted, it often 
 
 1 EisMon v. Nestitt, 2 M. & Eob. 554, per Rolfe, B. 
 = Id. 556, citing Monk v. Att.-Gen., 2 Riiss. & Myl. 147—151. 
 3 Crouoli 1). Hooper, 16 Beav. 184—189, per Romilly, M. R. ; Wetb v. Hay- 
 cock, 19 Beav. 342, per id. 
 
CHAP. IX.] EVIDENCE OF FAMILY CONDUCT ADMISSIBLE. 551 
 
 happens that little reliance can be placed on the accuracy of his 
 testimony ; for men, without deliberately intending to falsify facts, 
 are extremely prone to believe what they wish, to confound what 
 they believe with what they have heard, and to ascribe to memory 
 what is merely the result of imagination.-^ 
 
 § 649.^ Next, family conduct, — such as the tacit recognition of § 584 
 relationship, and the distribution and devolution of property, — is 
 frequently received as evidence from which the opinion and belief 
 of the family may be inferred, and as resting ultimately on the 
 same basis as evidence of family tradition. For, since the prin- 
 cipal question in pedigree cases turns on the parentage or descent 
 of an individual, it is obviously material, in order to resolve this 
 question, to ascertain how he was treated and acknowledged by 
 those who sustained towards him any relations of blood or of 
 affinity. Thus, in the Berkeley Peerage case, Sir James Mans- 
 field remarked, that, " if the father is proved to have brought 
 up the party as his legitimate son, this amounts to a daily asser- 
 tion that the son is legitimate." ^ So, the concealment of the 
 birth of a child from the husband,* — the subsequent treatment of 
 such child by the person who, at the time of its conception, was 
 living in a state of adultery with the mother, — and the fact that 
 the child and its descendants assumed the name of the adulterer, 
 and had never been recognised in the family as the legitimate 
 offspring of the husband, — are circumstances that will go far to 
 rebut the presumption of legitimacy, which the law raises in 
 favour of the issue of a married woman. ^ Again, if the question 
 be whether a person, from whom the claimant traces his descent, 
 was the son of a particular testator, the fact that all the members 
 of the family appear to have been mentioned ia the will, but that 
 no notice is taken of such person, is strong evidence to show, 
 
 1 Crouch V. Hooper, 16 Beav. 184 — 189, per Eomilly, M. fi. 
 
 2 Gr. Ev. § 106, in part. 3 4 Camp. 416. 
 ■■ Hargrave v. Hargrave, 2 C. & Kir. 701. 
 
 * Goodright v. Saul, 4 T. E. 356, per Ashhurst, J. ; Morris v. Davies, 5 CI. 
 & Fin. 163, 241, et seq. ; Banbury Peer., App. n. e to Le Marohant's Rep. of 
 Gardner Peer., 389, 432, 433 ; 1 Sim. & St. 153, S. C. ; R. v. Mansfield, 1 
 Q. B. 444 ; Townsliend Peer., 10 CI. & Kn. 289 ; Atohley v. Sprigg, 33 L. J., 
 Ck. 345. 
 
552 ENTRIES IN BIBLES, ETC., ADMISSIBLE. [PART II. 
 
 either that he was not the son, or at least that he had died with- 
 out issue before the date of the will ; ^ and if the object be to prove 
 that a 'man left no children, the production of his will, in which 
 no notice is taken of his family, and by which his property is be- 
 queathed to strangers or collateral relations, is cogent evidence of 
 his having died childless.^ 
 
 § 650.^ Entries made by a parent or relation in bibles,^ prayer- § 585 
 books, ^ missals,* almanacs,''' or indeed in any other book, or in 
 any document or paper,^ stating the fact and date of the birth, 
 marriage,' or death of a child, or other relation, are also received 
 as the written declarations of the deceased persons who respec- 
 tively made them. Entries in a family bible or testament vnll be 
 admissible, even without proof that they have been made by a 
 relative ; for as this book is the ordinary register of families, and 
 is usually accessible to all its members, the presumption is that 
 the whole family have more or less adopted the entries contained 
 in it, and have thereby given them authenticity.'^" This presump- 
 tion, however, will not prevail in favour of an entry in any other 
 book, however religious its character may be, but proof must be 
 given, either that the entry was made by some member of the 
 family,^^ or that it has been acknowledged or treated by a relative 
 
 1 Tracy Peer., 10 CI. & Fin. 100, per Ld. Campbell ; Robson v. Att.-Gen., 
 id. 498 — 500, per Ld. Cottenham. See ante, § 620, ad fin. 
 
 2 Hungate v. Gasooigne, 2 PMl. 25 ; 2 Coop. 414, S. C. ; De Eoos Peer., 
 2 Coop. 540. 3 Gr, j;y_ j io4, in part. 
 
 ■■ Berkeley Peer., 3rd quest., 4 Camp. 401. 
 
 6 Leigh Peer., Pr. Min. 310. 
 
 " Slane Peer., Pr. Min. pt. 2, p. 49 ; 5 CL & Fin. 41, S. C. 
 
 7 Herbert v. Tuckal, T. Eay. 84. 
 
 * Berkeley Peer., 3rd quest., 4 Camp. 418. See Jackson v. Cooley, 8 Johns. 
 128, 131 ; Douglas v. Saunderson, 2 DaU. 116 ; Carskadden v. Poorman, 10 
 Watts, 82. 
 
 ' In the Sussex Peer., an entry made by the mother of the claimant in her 
 prayer-book, declaring the fact of her marriage, was admitted in evidence, 
 11 CI. &Fin. 85, 98. 
 
 " Berkeley Peer., 4 Camp. 421, per Lds. EUenborough and Eedesdale ; 
 Monkton v. Att.-Gen., 2 Russ. & Myl. 162, 163, per Ld. Brougham ; Hubbard 
 V. Lees, 35 L. J., Ex. 169 ; 1 Law Rep., Ex. 255 ; 4 H. & C. 418, S. C. 
 
 " Tracy Peer., cited Hubb. Ev. of Sue. 673 ; Crawford & Lindsay Peer., 
 2 H. of L. Cas. 558—560. 
 
CHAP. IX.] BECITALS IN FAMILY DEEDS AND WILLS ADMISSIBLE. 553 
 
 as a correct family memorial,^ or, at least, if ancient, that it was 
 made at the time when it purports to have been written. In 
 order to establish this last fact, the evidence of skilled witnesses, 
 conversant with manjiscripts of different ages, is admissible, though, 
 as before observed, such evidence is entitled to very little weight.^ 
 
 § 651.^ Again, the correspondence of deceased members of the § 586 
 family,* will, on proof of the handwriting, be received,^ as will also 
 recitals in marriage settlements,^ and other family deedsl' descrip- 
 tions in wills,^ and the like. Even a cancelled will, which did not 
 appear to have been ever acted upon, has been admitted, on proof 
 that it was found among the papers of a descendant of the testator, 
 who seemed to have kept it as containing statements relative to 
 the family.^ So, recitals of descent, and descriptions of parties, 
 in deeds other than family instruments, will be received, provided 
 the deeds come from the proper custody, and are proved, or may 
 from age be presumed, to have been executed by some member of 
 the family to which the statements refer.^" But the execution of 
 the deed by a relation is an indispensable requisite ; and therefore, 
 where an indenture of assignment, which recited that the assignee 
 was the son of certain parties, was executed alone by the assignor, 
 
 ' Hood V. Beauchamp, 8 Sim. 26. 
 
 2 Tracy Peer., 10 CI. & Fin. 154 ; ante, § 50. 
 
 3 Gr. Ev. § 104, in part. 
 
 * Huntingdon Peer., Att.-Gen.'s Rep. 357 ; Kidney v. Cookbum, 2 Euss. 
 & Myl. 168 ; Leigh Peer., Pr. Min. pt. 2, p. 140 ; Hastings Peer., Pr. Min. 
 196. See Butler v. Mountgarret, 6 Ir. Law K, N. S. 77 ; 7 H. of L Cas 633 
 S. C. • ■ ' 
 
 s Marchmont Peer., Pr. Min. 345, 353. See Airth Peer., Pr. Min. 105. 
 
 ^ Neal V. "Wilding, 2 Str. 1151 ; De Eoos Peer., 2 Coop. 541, 542 ; CLandos 
 Peer., Pr. Min. 27 ; Stafford Peer., Pr. Min. 110 ; Zoucli Peer., Pr. Min. 276 ■ 
 Devon Peer., by Nicolas, 1832, App. pp. 44, 46 ; Lisle Peer., Pr. Min. 116 
 127; Banbury Peer., Pr. Min. 6, 117; Vaux Peer., Pr. Min. 44; Huntley 
 Peer., Pr. Min. 15 ; Roscommon Peer., Pr. Min. 36. 
 
 !■ Smith V. Tebbitt, 1 Law Rep., P. & D. 354 ; 36 L. J., Pr. & Mat. 35 S. C 
 
 8 VuUiamy v. Huskisson, 3 Y. & C, Ex. R. 82, per Ld. Abinger ; De' Roos 
 Peer., 2 Coop. 540, 541 ; Lisle Peer., by Nicolas, 51, 53. 
 
 » Doe V. Pembroke, 11 East, 504. 
 
 » Marmyon Peer., Pr. Min. Ill ; Hastings Peer., Pr. Min. 200; Borthwick 
 Peer., Pr. Min. 62 ; H:ungate v. Gascoigne, 2 Coop. 407, 417 ; De Roos Peer, 
 id. 541, 542. See Stokes i>. Dawes, 4 Mason, 268. ' 
 
554 INSCEIPTIONS ON TOMBSTONES, ETC., ADMISSIBLE. [PAET II. 
 
 who was not a member of the family, it was rejected ; ^ and a 
 similar fate attended a deed of conTeyance, wherein the grantors 
 recited the death of a man's sons, who were tenants in tail male, 
 and decla/red themselves heirs of the bodies of his daughters, who 
 were devisees in remainder.^ In regard to recitals of pedigree in 
 old answers in Chancery, a distinction has been taken between 
 those facts which were not, and those which were, in controversy ; 
 the former being admitted as ordinary declarations, the latter being 
 excluded as made post Utem motam.' Similar recitals in old bills 
 in equity are, it seems, always inadmissible, as these last aj-e re- 
 garded as the mere flourishes of the draughtsman.* 
 
 § 662.^ Inscriptions on tombstones,^ coffin-plates,'' mural monu- § 587 
 ments,^ family portraits,^ engravings on rings,-^" hatchments,-'^ 
 charts of pedigree,^^ and the like, are also admissible. Those 
 which are proved to have been made by, or under the direction of, 
 a deceased relative, are admitted as his declarations. But if they 
 have been publicly exhibited, and may therefore be supposed to 
 have been well known to the family, their publicity supplies any 
 defect of proof that they were declarations of deceased members 
 of the family ; and they are admitted on the ground of tacit and 
 common assent.-'^ It is presumed, — though this is a presumption 
 
 1 Slaney v. Wade, 1 Myl. & Cr. 338. 
 
 2 Fort V. Clarke, 1 Euss. 604. 
 
 ^ See 1 PL Ev. 219, 220, and the authorities there cited. See, also, De Roos 
 Peer., 2 Coop. 543, 544. 
 
 ■* Boileau v. Euthn, 2 Ex. R. 6Y8, per Paike, B., citing the Banbury Peer., 
 as reported in 2 Selw. N. P. 756, 10th ed. These cases appear to overrule 
 Taylor v. Cole, 1 T. R. 9, n. s Qj. gy ^ ;io5, in part. 
 
 « Monkton v. Att.-Gen., 2 Euss. & Myl. 163 ; Goodright v. Moss, 2 Cowp. 
 594. 
 
 7 Chandos Peer., Pr. Min. 10 ; Rokeby Peer., Pr. Min. 4 ; Lovat Peer., Pr. 
 Min. 77. 
 
 « Slaney v. Wade, 1 Myl. & Cr. 338 ; De Roos Peer., 2 Cowp. 544, 545. 
 
 s Camoys Peer., 6 01. & Fin. 801. 
 
 '" Vowles V. Young, 13 Ves. 144. 
 
 " Hungate v. Gasooigne, 2 Coop. 414, 416. 
 
 12 Monkton v. Att.-Gen., 2 Russ. & Myl. 163 ; Goodright v. Moss, 2 Cowp. 
 594. 
 
 13 Monkton v. Att.-Gen., 2 Russ. & Myl. 163 ; Davies v. Lowndes, 7 Scott, 
 N. E. 193, per Parke, B., who observes, "The ground upon which the inscrip- 
 
CHAP. IX.] VALUE OF MURAL INSCEIPTIONS AS ETIDENCE. 555 
 
 which is doubtless often contrary to the fact,-" — that the relatives 
 of a family would not permit an erroneous inscription to remain ; 
 and that a person would not knowingly wear a ring which bore a 
 mis-statement upon it.^ Doubts appear to have been entertained 
 at Nisi Prius respecting the admissibihty of an inscription on a 
 tombstone in a burial-ground for dissenters ; ^ but it is submitted 
 that such doubts are wholly groundless ; for not only has this 
 species of evidence been admitted by the House of Lords in 
 peerage claims,* but inscriptions on foreign monuments have also 
 been received.^ 
 
 § 653.^ Mural and other funereal inscriptions are provable, as § BS8 
 already shown,'' by copies, or other secondary evidence. Their 
 value as evidence depends much on the authority under which they 
 were set up, and on the distance of time between their erection and 
 the events which they commemorate.^ If parol testimony of their 
 contents be offered, on the ground that the original monuments are 
 destroyed or effaced, the court will not be satisfied, unless the prior 
 existence of the monuments, and the genuineness of the inscrip- 
 tions, be established in the very strongest manner that the circum- 
 stances of the case will admit.^ The ease with which evidence of 
 
 tion on a tombstone or a taUet in a church is admitted, is that it is presumed 
 to have been put there by a member of the family cognizant of the facts, and 
 whose declaration would be evidence ; where a pedigree hung up in the family 
 mansion is received, it is on the ground of its recognition by the members of 
 the family.'' 
 
 • Some remarkable mis-statements on monuments are mentioned in 1 Ph. 
 Ev. 222, and n. 4. 
 
 ^ Per Ld. Erskine, in Vowles ■». Young, 13 Ves. 144. 
 
 3 Whittuok V. Waters, 4 C. & P. 375, per Parke, J. 
 
 '' Say and Sele Peer., Serg. Hill's Collect, in Line. Inn Library, vol. 26, 
 p. 173. 
 
 5 Hastings Peer., Pr. Min. 197 ; Perth Peer., 2 H. of L. Gas. 874, 876. 
 
 ^ Gr. Ev. § 105, in part as to first five Unes. 
 
 7 Ante, § 438 ; and see Tracy Peer., 10 CI. & Fin. 164, 165 ; Roscommon 
 and Leigh Peer., cited Hubb. Ev. of Sue. 692 ; Slaney v. Wade, 1 Myl. & Cr. 
 338 ; 7 Sim. 595, S. C. cor. V.-Ch. ; Perth Peer., 2 H. of L. Cas. 874, 876. 
 
 8 Athenry Peer., Pr. Min. 45 ; Vaux Peer., Pr. Min. 129 ; Fitzwalter Peer., 
 Pr. Min. 34. 
 
 » Tracy Peer., 10 CI. & Fin. 154, 181, 182, 189, 192. See Shrewsbury 
 Peer., 7 H. of L. Cas. 27. 
 
556 DOCUMENT MUST BE EECOGNISBD BY FAMILY. [PART II. 
 
 this nature can be manufactured, and tlie difficulty of disproving 
 it so as to fix the witnesses with perjury, show the necessity of 
 enforcing this rule with more than ordinary strictness. 
 
 § 654. Though the publicity of a document or inscription is a § 589 
 strong fact from which a family recognition of its truth may be 
 presumed, yet a similar presumption may arise from other circum- 
 stances; and, therefore, if a document, though privately kept, 
 is clearly proved to have been preserved by members of the 
 family as an authentic memorial of their pedigree, it wiU be 
 receivable in evidence without proof of its origin.^ The mere pro- 
 duction, however, of a document from among the family archives,^ 
 and, a fortiori, its production from a museum, or other public 
 place of deposit,^ will not be sufficient to render it admissible, 
 without proof that it was made or recognised by some member of 
 the family. 
 
 § 655. The question how far a pedigree, purporting to have § 590 
 been compiled, either wholly or in part, from registers and other 
 documents which are not shown to have been lost, is admissible, 
 has been much discussed. The point arose in the case of Davies 
 V. Lowndes,* where a Welch pedigree, which was proved to be 
 in the handwriting of one of the ancestors of the defendant, was 
 offered in evidence, it being produced from the proper custody. 
 The document traced the genealogy of the family from a remote 
 and almost fabulous antiquity, and brought down the descent to 
 the immediate contemporary relatives of the writer. At the foot 
 of it was a memorandum in these words : " Collected from parish 
 registers, wills, monumental inscriptions, family records, and 
 history. This account is now presented as correct, and as con- 
 firming the tradition handed down from one generation to another, 
 to Thomas Lloyd, Esq., of Cwm Gloyne, this 4th day of July, 
 A.D. 1733, by his loving kinsman, Wm. Lloyd." The counsel for 
 the demandant contended that the entire document was admis- 
 
 ' Vaux Peer., Pr. Min. 62 ; Camoys Peer., 6 CI. & Fin. 801—803. 
 
 2 Fitzwalter Peer., Pr. Min. 45 ; Lovat Peer., Pr. iVEin. 81. 
 
 3 Chandos Peer., Pr. Min. 11. •> 5 Bing. N. C. 167 ; 7 Scott, 21, S. C. 
 
CHAP. IX.] DAYIES V. LOWNDES. 557 
 
 sible, or at least such parts of it as showed the relationship of 
 those persons who were described by the framer as then living, 
 and who might therefore be presumed to be personally known to 
 him ; but the Court of Common Pleas rejected the whole, appa- 
 rently on the ground that the memorandum bore upon the face 
 of it a sort of certificate, that the statement in the pedigree was 
 merely secondary evidence of existing originals from which it was 
 compiled, and that the absence of those originals was not accounted 
 for ; and that if any part of the pedigree was derived from legiti- 
 mate sources, viz., personal knowledge or family tradition, it did 
 not appear distinctly which was such part, and therefore the whole 
 was inadmissible.^ 
 
 § 656. The ease was then brought before the Exchequer § 591 
 Chamber, and the conclusion at which that court arrived, after 
 much doubt and full consideration, was that part, if not all, of the 
 pedigree was receivable in evidence. Lord Denman, in pro- 
 nouncing the judgment of the court, observes, that " a pedigree, 
 whether in the shape of a genealogical tree or map, or contained 
 in a book, or mural or monumental inscription, if recognised by a 
 deceased member of the same family, is admissible, however early 
 the period from which it purports to have been deduced. On 
 what ground is this admitted ? It may be that the simple act of 
 recognition of the document, and consequent acknowledgment of 
 the relationship stated in it, by a member of the family, is some 
 evidence of that relationship, from whatever sources his information 
 may have been derived, because he was Ukely, from his situation, 
 to inquire into the truth of such matters, and from his means of 
 knowledge, to ascertain it." ^ His lordship, — after referring to the 
 language of Lords Brougham^ and Cottenham,* and of the Vice- 
 Chancellor of England,^ as giving great countenance to the 
 opinion, that the recognition by a relative of a statement of 
 relationship is evidence of the truth of that statement, — adds, " If 
 
 ' Per Ld. Denman, in Da vies v. Lowndes, 7 Scott, N. E. 211 ; 6 M. & Gr. 
 525, S. C. 
 
 2 7 Scott, N. R. 211, 212 ; 6 M. & Gr. 525, 526, S. C. 
 
 3 Monkton v. Att.-Gen., 2 Euss. & Myl. 156. 
 
 * Slaney v. Wade, 1 Myl. & Cr. 355. ' Slaney v. Wade, 7 Sim. 611. 
 
558 AEMOEIAL BEARINGS ADMISSIBLE. [PAET II. 
 
 this be a correct view of the law, the pedigree in question was 
 admissible, because it was certainly acknowledged by Wm. Lloyd 
 to be correct." The judgment then continues thus : — "But the 
 reason why a pedigree, when made or recognised by a member of 
 a family, is admissible, may be, that it is presumably made or 
 recognised by him in consequence of his personal knowledge of 
 the individuals therein stated to be relations, or of information 
 received by him from some deceased member of what the latter 
 knew, or heard from other members who hved before his time. 
 And if so, it may well be contended, that, if the facts rebut that 
 presumption, and show that no part of the pedigree was derived 
 from proper sources of information, then the whole of it ought to be 
 rejected ; and so also if there be some, but an uncertain and unde- 
 fined part, derived from improper sources. But when the framer 
 speaks of individuals, whom he describes as living, we think the 
 reasonable presumption is that he knew them, and spoke of his 
 own personal knowledge, and not from reference to registers, wills, 
 monumental inscriptions, and family records, or history ; and, con- 
 sequently, to that extent, the statements in the pedigree are derived 
 from a proper source, and are good evidence of the relationship of 
 those persons."-' 
 
 § 657. Armorial bearings, whether carved on wood, painted on g 592 
 glass, engraved on monuments or seals, or otherwise emblazoned, 
 are also admissible in cases of pedigree ; not only as tending to 
 prove that the person who assumed them was of the family to which 
 they of right belonged, but as illustrating the particular branch 
 from which the descent was claimed, or as showing, by the impal- 
 ings or quarterings, the nature of the blazonry, or the shape of the 
 shield, what families were allied by marriage, or what members of 
 the family were descended from an illegitimate stock, or were 
 maidens, widows, or heiresses.* The value of this evidence depends 
 
 1 7 Scott, N; K. 213 ; 6 M. & Gr. 527, S. 0. 
 
 - Harl. MS. 1836, 6141 ; Hervey v. Hervey, 2 W. Bl. 877 : Chandos Peer., 
 Pr. Min. 6, 24, 37, 40, 49 ; Htintingdon Peer., by Bell, 280 ; Att.-Gen.'s Rep., 
 359, S. C. ; Hastings Peer., Pr. Min. 313 ; Co. Lit. 27, a. ; Shrewsbury Peer., 
 7 H. of L. Cas. 10 ; Fitzwalter Peer., Pr. Min. 49 ; Camoys Peer., Pr. Min. 58 ; 
 1 Sid. 354. 
 
CHAP. IX.J AEMOEIAL BEABINGS ADMISSIBLE. 559 
 
 almost wliolly upon its antiquity ; and as, siace the Eevolution,' 
 the heralds have exercised no authority in correcting usurpation, 
 the use of armorial bearings subsequently to that date is entitled 
 to but httle, if any, weight as evidence of genealogy.^ When 
 proof of this nature is offered, some officer of the Heralds' College 
 should be in attendance, to explain the meaning of the occult 
 science.' 
 
 ' Tke date of the kst Herald's visitation was 1686, and of the first was 1528. 
 See Tl-abh. Ev. of Sue. 542. 
 
 "- 1 Ph. Ev. 224 ; Hubb. Ev. of Sue. 696. 
 
 ' See Chandos Peer., Pr. Min. 6, 24, 37, 40, 49. Besides the different species 
 of evidence enumerated above, recourse may occasionally be had to the 
 Heralds' books, inquisitions post mortem, parish books, registers, &c. ; but 
 as these are admissible, not as the hearsay evidence of relatives, but as public 
 documents, the law respecting them will be discussed hereafter : Part iii. 
 Chap. iv. See De Roos Peer., 2 Coop. 545 — 552. 
 
560 HEARSAY IN SUPPOET OF ANCIENT POSSESSION. [PAET II. 
 
 CHAPTER X. 
 
 ANCIENT POSSESSION. 
 
 § 658. A THIRD EXCEPTION to the rule rejecting hearsay evidence § ^93 
 is allowed in favour of ancient documents when tendered in support 
 ot ancient possession. By the term "ancient documents," are 
 meant documents more than thirty years old ; and as these often 
 furnish the only attainable evidence of ancient possession, the 
 law, on the principle of necessity, allows them to be read in courts 
 of justice on behalf of persons claiming under them, and against 
 persons in no way privy to them, provided that they are not mere 
 narratives of past events, but that thej purport to have formed a part 
 of the act of ownership, exercise of right, or other transaction to 
 which they relate. No doubt this species of proof deserves to be 
 scrutinised with care ; for, first, its effect is to benefit those who are 
 connected in interest vnth the original parties to the documents, 
 and from whose custody they have been produced ; and next, the 
 documents are not proved, but are only presumed to have consti- 
 tuted part of the res gestae. Still, as forgery and fraud are, com- 
 paratively speaking, of rare occurrence, and as a fabricated deed 
 will, generally, from some anachronism or other inconsistency, 
 afford internal evidence of its real character, the danger of ad- 
 mitting these documents is less than might be supposed ; and, at 
 any rate, it is deemed more expedient to run some risk of occa- 
 sional deception, than to permit injustice to be done by strict 
 exclusion of what, in many cases, would turn out to be highly 
 material evidence. On a balance, therefore, of evils, this kind of 
 proof has for many years past been admitted, subject to certain 
 qualifications, which will now be stated.^ 
 
 § 659. And first, care is especially taken to ascertain the genuine- § 594 
 ness of the ancient documents produced ; and this may in general 
 
 ' See 1 Ph. Ev. 273 ; 1 St. Ev. 67 ; Gr. Ev. § 141 ; and Best, Ev. 615. 
 
CHAP. X.] LEGAL MEANING OF PEOPEB CUSTODY. 561 
 
 be shown, prima facie, by proof that they come from the proper 
 custody} As this proof is by no means confined to documents 
 tendered in support of ancient possession, but is required in most 
 cases where deeds, papers, or writings are rendered admissible 
 by any rule of law without strict proof of their authenticity, it 
 becomes highly important to explain, with as much precision as 
 possible, the legal meaning of the words " proper custody." The 
 subject, therefore, will be illustrated in this place once for aU, by 
 a reference ■ to the leading decisions which bear upon it ; and 
 attention will first be drawn to the language used by Chief Justice 
 Tindal in the House of Lords, while pronouncing the opinion of 
 the judges in the important case of the Bishop of Meath v. The 
 Marquis of Winchester.^ 
 
 § 660. "Documents," said his lordship, "found in a place in §595 
 which, and under the care of persons with whom, such papers 
 might naturally and reasonably be expected to be found, are 
 precisely in the custody which gives authenticity to documents 
 found within it; for it is not necessary that they should be found in 
 the best and most proper place of deposit. If documents continue 
 in such custody, there never would be any question as to their 
 authenticity ; but it is when documents are found in other than 
 their proper place of deposit that the investigation commences, 
 whether it was reasonable and natural, under the circumstances 
 in the particular case, to expect that they should have been in the 
 place where they are actually found; for it is obvious, that, while 
 "there can be only one place of deposit strictly and absolutely 
 proper, there may be many and various, that are reasonable and 
 probable, though difi'ering in degree ; some being more so, some 
 less ; and in those cases the proposition to be determined is, 
 whether the actual custody is so reasonably and probably to be 
 accounted for, that it impresses the miad with the conviction that 
 the instrument found in such custody must be genuine. That 
 such is the character and description of the custody, which is held 
 
 > See ante, § 432, et seq. 
 
 2 3 Bing. N. C. 200—202 ; 10 Bligh, 462—464, S. C. See, also. Doe i 
 Samples, 8 A. & E. 154, per Patteson, J. ; Doe v. Phillips, 8 Q. B. 158. 
 
 o 
 
562 MEANING OF PEOPEB CUSTODY ILLUSTRATED. [PAET II. 
 
 sufficiently genuine to render a document admissible, appears from 
 all the cases." ^ 
 
 § 661. Thus, on the one hand, old grants to abbeys have been § 596 
 rejected as evidence of private rights, where the possession of them 
 has appeared altogether unconnected with the persons who had any 
 interest in the estate.^ So, a manuscript found in the Heralds' 
 Office, enumerating the possessions of a dissolved monastery,^ — 
 a curious manuscript book, entitled the " Secretum Abbatis," pre- 
 served in the Bodleian Library at Oxford, and containing a grant to 
 an abbey,* — an old grant to a priory, brought from the Cottonian 
 MSS. in the British Museum,^ — and two ancient writings, purport- 
 ing respectively to be an endowment of a vicarage and an iaspeximus 
 of the endowment under the seal of a bishop, both of which had 
 been purchased at a sale as part of a private collection of manu- 
 scripts,* — have been held to be inadmissible, the possession of the 
 documents being unconnected with the interest in the property.'' 
 So, also, as the registers of burials and baptisms are required by 
 the Act of 62 G. 3, c. 146, §§ 1 & 6, to be kept by the clergyman 
 of the parish either at his own residence or in the church, such 
 registers, when produced from the house of the parish clerk, have, 
 ' in the absence of all explanation on the subject, been rejected, as 
 not coming from the proper custody.^ So, the courts have on 
 several occasions refused to admit terriers, which have been found 
 among the papers of a mere landholder in the parish,' because the 
 legitimate repository for such documents would be either the registry 
 
 1 For the American authorities, see Barr v. Gratz, 4 Wheat. 213, 221 ; Winn 
 V. Patterson, 9 Pet. 663—675 ; Clarke v. Courtney, 5 Pet. 319, 344 ; Hewlett 
 V. Cock, 7 Wend. 371, 374 ; Duncan v. Beard, 2 Nott & M'C. 400 ; Middleton 
 V. Mass, id. 55. ^ 3 Bing. N. C. 201, per Tindal, C. J, 
 
 3 Lygon V. Stmtt, 2 Anstr. 601. 
 
 ^ Michell V. Rabbetts, cited 3 Taunt. 91. 
 
 '" Swinnerton v. M. of Stafford, 3 Taunt. 91. 
 
 « Potts V. Durant, 3 Anstr. 789 ; 2 Eag. & Y. 432, S. 0. 
 
 ' Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 201, per-Tindal, C. J. 
 
 8 Doe V. Fowler, 19 L. J., Q. B. 15 ; 14 Q. B. 700, S. C. 
 
 ' Atkins V. Hatton, 2 Anstr. 386 ; 3 Gwill. 1406 ; 4 Wood's Decrees, 410 ; 
 2 Eag. & Y. 403, S. C. ; Atkins v. Ld. Willoughby De Broke, 4 Wood's De- 
 crees, 424. 
 
CHAP. X.] MEANING OF PEOPEE CUSTODY ILLUSTEATED. 56S 
 
 of the bishop, the registry of the archdeacon, or the church chest. ^ 
 In the case of Eandolph v. Gordon^ this doctrine was carried to its 
 extreme limit. There, the defendant, who was grandson of a former 
 rector, produced a book, which purported to be the book of such 
 rector ; but as he did not show that he had found it among his 
 grandfather's papers, or that it had come into his possession in a 
 legitimate manner, it was rejected. 
 
 § 662. On the other hand, the poor-house of a union has been § 597 
 considered not an improper repository for the documents of any 
 parish within the union ; ^ and an old chartulary of a dissolved 
 abbey has been admitted, when found in the possession of the owner 
 of part of the abbey lands, though not of the principal proprietor* 
 The strictly proper custody for such a document as this last would 
 have been the Augmentation Office ; ^ and as between the different 
 proprietors of the abbey lands, it might naturally be supposed to 
 have been deposited with the largest ; still the court held, that its 
 actual place of custody was one, where it might reasonably be ex- 
 pected to be found.^ So, an old book of a collector of tithes would 
 be equally well authenticated, whether produced from the custody 
 of the successor, or executor, of the incumbent, or from the hands 
 of the successor of the collector.''' So, also, an unproved will, more 
 than thirty years old, disposing of real and personal estate, and pro- 
 duced from the custody of a younger son of the testator, who, in 
 common with his brothers, derived a benefit under it, has been ad- 
 mitted, though it was contended that it should have been deposited 
 in the ecclesiastical court of the diocese.^ 
 
 1 Armstrong v. Hewett, 4 Price, 216 ; 3 Eag. & Y. 835, S. C. ; Potts v 
 Durant, 3 Anstr. 795 ; 3 GwUl. 1450, S. C. 
 
 2 5 Price, 312. See, also, Manby v. Curtis, 1 Price, 225. 
 
 3 Slater v. Hodgson, 2 Sess. Ca. 488 ; 9 Q. B. 727, S. C. 
 
 * Bullen V. Michel, 2 Price, 399, 413 ; 4 Dow, 297 ; 4 Gwill. 1779 ; 3 Eacr 
 & Y. 757, S. C. See, also, Mytton v. Thornbury, 2g»L. J., M. C. 109 • S o' 
 nom. E. V. Mytton, 2 E. & E. 557. ' ■ ■ , ■ . 
 
 * Per Ld. Eedesdale, in Bullen v. Michel, 4 Dow, 321. 
 
 6 Bp. of Meatb v. M. of Wincbester, 3 Bing. N. C. 201, 202, per Tindal 
 C. J. ^ Id. ; referring to Jones v. Waller, 3 Gwill. 346. 
 
 8 Doe V. Pearce, 2 M. & Rob. 240, per Coleridge, J.; Andrew v Motley 12 
 Com. B., N. S. 526. 
 
 002 
 
564 WHEN CUSTODY MtlST BE PROVED BY EVIDENCE. [PAET II. 
 
 § 663. When an expired lease was produced from the custody of § 597 
 the lessor, and proof was given that he had received it from a 
 former occupier of the demised premises, who had paid for several 
 years the precise rent reserved hy it, and who, subsequently to the 
 expiration of the term, had procured it from two strangers who 
 claimed no interest in it, the court held the deed to be admissible, 
 without proof in what manner it had come into the hands of these 
 strangers ; because, by the act of giving it up to the occupier, they 
 admitted his right to the possession of it, and were consequently 
 presumed to have held it on his account.^ Again, a case stated for 
 counsel's opinion by a deceased bishop, respecting his right of pre- 
 sentation to a living, has been admitted against a subsequent bishop 
 of the same see, on a question touching the same right, though the 
 paper was not found in the public registry of the diocese, but 
 among the private family documents of the descendants of the 
 former bishop.^ So, where a mortgagee in fee brought an action of 
 ejectment, and the defendant's case was, that the mortgagor, his 
 father, had, previously to the mortgage, conveyed the estate to 
 trustees in settlement, reserving to himself only a life interest, the 
 court permitted the son to put in the deed of settlement, it being 
 fQore than thirty years old, though it was produced from among the 
 papers of his late father, against whom its provisions were intended 
 to operate ; and though it was strongly urged that the trustees or 
 their representatives were the parties entitled to its custody ; and 
 the more especially so, as by the deed having been permitted to 
 remain with the settlor, he had been enabled to practice a fraud on 
 the mortgagee.^ 
 
 § 664. Some doubt exists whether the custody of a document § 598 
 must be proved by a sworn witness, when it purports on its face to 
 belong to the party who tenders it in evidence. In one or two set- 
 tlement cases, the respondents have been permitted to produce old 
 certificates, which purported to have been granted to them by the 
 
 ' Rees V. Walters, 3 M. & W. 527. 
 
 2 Bp. of Meath v. M. of Wincliester, 3 Bing. N. C. 183, 202, 203. 
 
 3 Doe V. Samples, 8 A. & E. 151 ; 3 N. & P. 254, S. 0. See, also, Bertie 
 V. Beaumont, 2 Price, 307 ; Ld. Trimlestown v. Kemmis, 9 CI. & Kn. 774 775. 
 
CHAP. X.J COEBOBORATIVE PEOOP OP ANCIENT DOCUMENTS. 565 
 
 appellants, without giving any account respecting their custody ; ^ 
 but in the case of Evans v. Eees, where, on a question of boundary, 
 the plaintiff's counsel proposed to read certain manor-books without 
 proving the custody whence they came, on the ground that they 
 belonged to the lord, who was admitted to be the real plaintiff, the 
 court held that they could not be read ; Mr. Justice Coleridge ob- 
 serving, that unless some one was sworn for the purpose of proving 
 their custody, they might have been procured from a grocer's shop.^ 
 If, however, the witness producing the document can swear that he 
 received it from the representative of the person originally entitled 
 to it, as a paper which had belonged to such person, it seems that 
 this evidence will in ordinary cases be sufiioient, without calhng the 
 representative himself to explain how he became possessed of the 
 document.^ 
 
 § 665. An able writer on the law of evidence has urged, that in § 599 
 order to render ancient documents admissible, proof, if possible, 
 must be given of some act done with reference to„them, and that 
 where the nature of the case does not admit of such proof, acts of 
 modern enjoyment must at least be shown.* This doctrine, how- 
 ever, would seem to be advanced in somewhat too bold a manner, 
 and to be unsupported by the current of modern decisions ; for 
 although it is perfectly true that the mere production of an ancient 
 document, unless supported by some corroborative evidence of acting 
 under it, or of modern possession, would be entitled to little, if any, 
 weight, still there appears to be no strict rule of law, which would 
 authorise the judge iu withdrawing the deed altogether from the 
 consideration of the jury :— in other words, the absence of proof of 
 possession affects merely the weight, and not the admissibility, of 
 the instrument.' 
 
 § 666. Thus, in Eogers v. Allen, where, in order to prove a § 600 
 prescriptive right of fishery as appurtenant to a manor, ancient 
 licences to fish in the locus in quo, which'appeared on the court- 
 
 » E. V. Ryton, 5 T. H, 259 ; R. v. Netherthong, 2 M. & Sel. 337 
 
 = 10 A. & E. 151, 154. 
 
 3 Earl V. Lewis, 4 Esp. 1, per Heath, J. See Doe v. Keeling, 11 Q. B. 884. 
 
 ^ 1 Ph. Ev. 276, 278. ' Malcomson v. O'.Dea, 10 H. of L. Cas. 614, 61.3. 
 
566 PEBSUMPTIONS IN FAVOUR OP ANCIENT DOCUMENTS. [PAET II. 
 
 rolls, and were granted by former lords in consideration of certain 
 rents, were tendered in eyidence, Mr. Justice Heath, after argument, 
 held that they were admissible without any proof of the rents 
 having been paid ; but he added that, " to give them any weight, it 
 must be shown that in latter times payments had been made under 
 licences of the same kind, or that the lords of the manor had exer- 
 cised other acts of ownership over the fishery, which had been 
 acquiesced in."^ So, in the case of the Duke of Bedford v. Lopes, 
 Bart., which was an action brought to try the title to the bed of a 
 river, after proof of a grant from Henry VIII., two counterparts of 
 leases were produced from the Duke's muniment room, comprehend- 
 ing the soil in question. No payment by a tenant was proved, nor 
 any modern act of ownership ; but Lord Denman admitted the 
 instruments as coming from the right custody, observing that no 
 circumstance in the case threw suspicion upon them, and that " the 
 absence of other kinds of proof was mere matter of observation."^ 
 Again, in one of the numerous ejectments brought by Lord Egre- 
 mont,^ it became necessary to show that the land in question had 
 been part of the estate of the lessor's. ancestor, Sir William Wynd- 
 ham ; and in order to establish this fact, a document was produced 
 from the muniment room of the property inherited from Sir William, 
 which appeared to be a counterpart of a lease of this land made by 
 him ; but it purported to be executed only by the lessee, and no 
 proof was given of actual possession under it. The Court of 
 Queen's Bench, after consulting with some of the other judges, held 
 that this deed was admissible in .evidence. 
 
 § 667.* Under the above qualifications, ancient documents are § 601 
 
 ■1 1 Camp. 309, SU ; Maloomson v. O'Dea, 10 H. of L. Cas. 593, 6ia 
 
 2 Cited in argument, 3 Q. B, 623. 
 
 3 Doe V. Pulman, 3 Q. B. 622, 626. See, further, Clarlison u Wosdliouse, 
 5 T. E. 413, n., per Ld. Mansfield ; 3 Doug. 189, S. C. ; Brett v. Beales, M. & M. 
 418, per Ld. Tenterden ; Tisdall ,;. Parnell, 14 Ir. Law R., N. S. 123 ; Doe 
 V. Passingiiam, 2 C. & P. 444, per Burrough, J. ; Rancliffe v. Parkyns, 6 Dow, 
 202, per Ld. Eldon ; MoKenire v. Fraser, 9 Ves. 5 ; Jackson v. Blanshan, 3 
 Johns. 292, 297, 298 ; Crowder v. Hopkins, 10 Paige, 190 ; Jackson n. Luc[uere, 
 5 Cowen, 221, 225 ; Jackson v. Lamb, 7 id. 431 ; Barr v. Gratz, 4 Wheat. 213, 
 221 ; I-Iewlett v. Cock, 7 Wend. 371, 373, 374. 
 
 ■• .Gr. tv. § 144, in great part. 
 
CHAP. X.] PEESUMPTIONS IN FAVOUR OF ANCIENT DOCUMENTS. 567 
 
 receivable as evidence that the transactions to which they relate 
 actually occurred. And though they are usually spoken of as hear- 
 say evidence of ancient possession, and, as such, are said to be 
 admitted in exception to the general rule ; yet they seem rather to 
 be parts of the res gestsB, and therefore admissible as original 
 evidence, on the principle already discussed.^ An ancient deed, 
 which has nothing suspicious about it, is presumed to be genuine 
 without express proof, the witnesses being presumed dead ; ^ and, 
 if found in the proper custody, and corroborated by evidence of 
 ancient or modern corresponding enjoyment, or by other equivalent 
 or explanatory proof, it will be presumed to have constituted part 
 of the actual transfer of property therein mentioned ; because this 
 is the usual course of such transactions. The residue of the 
 transaction may be as unerringly inferred from the existence of 
 genuine ancient documents, as the remainder of a statue may be 
 made out from an existing torso, or a perfect skeleton from the 
 fossil remains of a part. 
 
 1 Ante, § 583, et seij. 2 Ante, § 87, 
 
568 DECLAKATIONS AGAINST INTEREST, WHEN ADMISSIBLE. [PAKT II. 
 
 CHAPTER XL 
 
 DECLARATIONS AGAINST INTEREST. 
 
 § 668.^ A FOURTH EXCEPTION to the rule rejecting hearsay § 602 
 evidence is allowed in favour of declarations made by persons 
 since deceased against their pecuniary or proprietary interest.'^ 
 The ground upon which this evidence is received, is the extreme 
 improbability of its falsehood. The regard which men usually pay 
 to their own interests is considered a sufficient security against 
 any wilful mis-statement, and affords also a reasonable inference 
 that the declarations or entries were not made under any mistake 
 of fact, or want of information on the part of the declarant. The 
 danger of any fraud in the statement will be still less dreaded, if 
 it be borne in mind, that the evidence is not receivable till after 
 the death of the declarant, and that if the opponent can show that 
 the statement was made with any sinister motive, it will at once 
 be rejected. The ordinary tests of truth, afforded by the adminis- 
 tration of an oath and by cross-examination, are certainly here 
 wanting ; but their place is in some measure supplied by the cir- 
 cumstances of the declarant ; and the inconveniences that would 
 result from the exclusion of evidence, having such guarantees for 
 its accuracy in fact and its freedom from fraud, are rightly con- 
 sidered much greater in general, than any which are likely to be 
 experienced from its admission.* 
 
 § 669. In order to render declarations against interest admis- s gos 
 sible as such, it must appear, either by proof or by presumption,* 
 that the declarant is dead ,- ^ and the mere fact that he has 
 
 ' Gr. Ev. § 148, in great part. 
 
 2 Sussex Peer., 11 CI. & Fin. 103—114 ; Higham v. Ridgway, 10 East, 109 ; 
 2 Smith, L. C. 2,70, S. C. ; id. 281, n. ; Short v. Lee, 2 Jao. & W. 464, 488, per 
 Pliimer, M. R. 
 
 ' 1 Ph. Ev. 294. * Doe v. Michael, 17 Q. B. 276 ; ante, § 198. 
 
 ' Phillips V. Cole, 10 A. & E. 106, 111, per Ld. Denman ; Spargo v. Brown, 
 
CHAP. XI.] DECLARANT MUST BE DEAD. 569 
 
 absconded abroad in consequence of a criminal charge, or that he 
 is otherwise out of the power of the party to produce as a witnesr, 
 will not be sufficient.^ It would seem, also, from many of the 
 cases, that the declarant must be shown to have had a competent, 
 if not a peculiar, knowledge of the facts, which form the subject 
 matter of the declaration ; ^ and, indeed, in the Sussex Peerage 
 claim, the rule was so laid down.^ In all these cases, however, 
 the "law "was " taken for granted ;" * and in Crease v. Barrett, 
 where the question was expressly raised, the Court of Exchequer 
 after argument held, " that it was not necessary that the deceased 
 person should have his own knowledge of the fact stated, — that, 
 if the entry charged himself, the whole of it became admissible 
 against all persons, — and that the absence of such knowledge went 
 to the weight, and not to the admissibility, of the evidence." ^ 
 
 § 670. It was long a matter of doubt in Westminster Hall, § 604 
 whether the absence of all interest to misrepresent, coupled with 
 peculiar knowledge in the declarant, would not render his declara- 
 tions admissible after his death : ^ but it is now fully determined, 
 first, that the statement or entry must be against the interest of 
 the person making it ; '' and, secondly, that the interest must be 
 of a pecuniary or proprietary nature.^ These points were decided 
 
 9 B. & C. 935 ; Smith v. WMttingliam, 6 C. & P. 78. See ante, § 641, and 
 post, § 703. 
 
 1 Stephen v. Gwenap, 1 M. & Rob. 120, per Alderson, J. 
 
 ^ Higham v. Eidgway, 10 East, 122, per Bayley, J. ; Marks v. Lahefe, 3 Bing. 
 N. 0. 419, per Tindal, C. J. ; 420, per Parke, J. ; 421, per Vaughan, J. ; Barker 
 !). Kay, 2 Russ. 76, per Ld. Bldon ; Short v. Lee, 2 Jac. & W. 475, 488, 489, 
 per Plumer, M. R. 
 
 ^ 11 CI. & Fin. 112, per Ld. Brougham and Ld. Denman. 
 
 ■• As to which, see per Ld. Denman in O'Connell u. The Queen, 11 CI. & 
 Fin. 373. 
 
 > 1 C. M. & R. 925 ; 5 Tyr. 464, 465, S. C. 
 
 " See per Ld. Hardwioke in Glynn v. Bk. of England, 2 Ves. Sen. 38 ; per 
 Le Blanc, J., in Higham v. Ridgway, 10 East, 120, 121 ; per Bayley, J., in 
 Gleadow v. Atkin, 1 C. & M. 424 ; per Ld. Ellenborough in Roe v. Rawlings, 
 7 East, 290 ; and Daly v. Wilson, Milw., Eo. Ir. K 658—660. 
 
 ' Berkeley Peer., Pr. Min. 655, cited and confirmed in Sussex Peer., 11 CI. 
 & Fin. 108, 109. 
 
 " Sussex Peer., 11 CL & Fin. 103 — 114 ; explained and acted upon by Ld. 
 
570 ENTRY AGAINST PECUNIAEY OE PEOPRIETARY INTEEEST. [PART n. 
 
 in the Sussex Peerage case, where, in order to prove the marriage 
 of the Duke of Sussex and Lady Augusta Murray, statements 
 made by the clergyman, since deceased, who had married them at 
 Eome, were tendered in evidence, on the ground that they were 
 clearly against his interest, inasmuch as they related to an act 
 which rendered him liable to prosecution whUe living, or which, at 
 least, he beheved to be illegal. Lord Chancellor Lyndhurst, in 
 declaring his opinion that this evidence should be rejected, ob- 
 served, " It is not true that the declarations of deceased persons are 
 in all circumstances receivable in evidence, when in some way or 
 other they might injuriously affect the interest of the party making 
 them. Nor is it true, that because, while living, a party would be 
 excused from answering as to certain facts, his declarations as to 
 those facts become evidence after his death. These are not correla- 
 tive nor corresponding propositions." ^ Lord Brougham also added, 
 " To say, if a man should confess a felony for which he would be 
 liable to prosecution, that, therefore, the instant the grave closes 
 over him, all that was said by him is to be taken as evidence in 
 every action and prosecution against another person, is one of the 
 most monstrous and untenable propositions that can be advanced."^ 
 
 § 671. The courts will not weigh with nice scales the amount § 605 
 of the pecuniary interest, but will admit every entry which, at 
 the time when it was made, completely charged the maker to any 
 extent.^ But an incomplete charge will not be sufficient ; and, 
 therefore, an entry in the following form, " April 4th. — ^A. came 
 as a servant, to have for the half year 21. " was held to be inad- 
 missible as a declaration against interest, the court considering 
 it merely as a memorandum of an agreement, which must be 
 supposed to have been made on fair terms, and was, consequently, 
 as much in favour of the maker's interest as against it. If the 
 master had to pay for the services, the servant had to perform 
 
 Denman in Davis v. Lloyd, 1 C. & Kir. 276. See, also. Smith v. Blakey, 2 Law 
 fiep., Q. B. 326 ; 36 L. J., Q. B. 156 ; 8 B. & S. 157, S. C. 
 
 ' 11 CL & Fin. 110. 
 
 - Id. Ill, 112. This case overrules Standen v. Standen, Pea. R. 45. 
 
 ^ Orrett v. Corser, 21 Beav. 52 ; Richards v. Gogarty, I. R. 4 C. L. 300. 
 
CHAP. XI.] OEAL STATEMENTS WRITTEN STATEMENTS. 671 
 
 them. Mr. Justice Coleridge observed, that " this was not an 
 entry against the party's interest, unless the mere making of a 
 contract be so ; and if that were the case, the existence of a con- 
 tract would be against the interest of both parties to it." ^ 
 
 § 672. It is now determined both with reference to this excep- § ^^^ 
 tion, and also to that which relates to declarations made in the 
 course of duty or business,^ that the term " declaration" includes 
 a mere oral statement, as well as a written memorandum.^ The 
 former may indeed be entitled to less weight with the jury than 
 the latter, but the law of England recognises no distinction 
 between statements made by word of mouth and those made in 
 writing, except where the writing is by deed. 
 
 § 673. It is further clear that the term " declaration," as ap- § 607 
 plied to the exception under discussion, embraces all written 
 statements, whether made at the time of the fact declared, or on a 
 subsequent day/ though the exception is most frequently exem- 
 plified by entries in books of account. Where ^ these are books 
 of collectors of taxes, stewards, bailiffs, or receivers, which are 
 subject to the inspection of others, ,and in which the entries are 
 generally of money received, charging the party making them, the 
 exception clearly applies.^ But private books, though exclusively 
 retained within the custody of their owners, are also admissible 
 on the same principle ; for their liability to be produced in courts 
 of law on notice, and the possible chance of their contents be- 
 coming known through accident, are deemed suf&ciBnt security 
 
 ' E. V. Wortli, 4 Q. B. 132, 139. 
 
 2 E. V. Buckley, 13 Cox, 293. 
 
 ' E. V. Binmngham, 31 L. J., M. C. 63 ,; 1 B. & S. 763, S. 0. ,See Stapylton 
 V. Clough, 2 E. & B. 933 ; Fuisdon v. Clogg, 10 M. & W. 572, 574—576 ; 
 Sussex Peer., 11 CI. & Pin. 103—114. See, also, post, § 708. In Smith v. 
 Blakey, 8 B. & S. 164, Blackburn, J., is reported to have questioned this pro- 
 position as being « too broadly stated," but the learned Judge cited no authority 
 in support of his view of the law, and his comment was a mere obiter dictum. 
 
 * Doe V. Turford, 3 B. & Ad. 898, per Parke, B. ; Short v. Lee, 2 Jac. & "W. 
 475, per Plumer, M. R. » Gr. Ev. § 150, in great part. 
 
 ^ Barry v. Bebbington, 4 T. E. 514 ; Goes v. Watlington, 3 B. & B. 132 ; 
 Whitnash v. George, 8 B. & C. 5.56. 
 
572 BALANCE OF DEBTOR AND CREDITOB ACCOUNT. [PART II. 
 
 against fraud ; ^ and as the entry is not admissible, unless it 
 either charges the party making it with the receipt of money on 
 account of a third person, or acknowledges the payment of money 
 due to himself, it is considered, in either of these eyents, as suffi- 
 ciently against his interest to be brought within the exception.^ 
 
 § 674. No valid objection can be taken to the admissibility of § 608 
 an entry, which charges the person making it with receiving 
 money from another, on the ground that such entry forms only a 
 part of a general debtor and creditor account, the balance of which 
 is in favour of the receiver ; ^ for, if an action were brought against 
 the receiver by his employer, that part of the account which 
 charged the receiver would be evidence against him, while the 
 entries which showed his discharge, though not absolutely inad- 
 missible for him, would, as compared with the entries against 
 his interest, be entitled to veij little weight ; * and even if it were 
 otherwise, the admission of the receipt of money would still be 
 against his interest, a,s the balance in his favour would thereby be 
 diminished to the extent of the sum admitted.^ Besides, a man 
 is little likely to charge himself for the mere purpose of getting 
 a discharge ; ^ and as almost all entries, which are tendered in 
 evidence as being declarations against interest, are inserted in 
 accounts containing items on both sides, the objection,, if it were 
 allowed to prevail, would strike at the very root of the exception 
 under review.'^ 
 
 § 675. Whether an entry made by a party, acknowledging the § 609 
 payment of money as due to himself, will be admissible as a 
 declaration against interest, in cases, where such entry is the only 
 evidence of the charge of which it shows the subsequent liquidation, 
 
 ' Higliam v. Ridgway, 10 East, 122, per Bayley, J. ; Eoe v. Rawlings, 7 
 .East, 291, per Ld. Ellenborough ; Middleton v. Melton, 10 B. & C. 317. 
 
 2 See Foster v. M'Mahon, 11 Ir. Eq. R. 287, 299—302. 
 
 ^ Eowe V. Brenton, 3 M. & R. 267, 268 ; Williams v. Geaves, 8 C. & P. 
 592, per Patteson, J. ; R. v. Worth, 4 Q. B. 134, per Coleridge, J. ; Clark v. 
 Wilmot, 1 Y. & C. Ch. R. 53. •• See 2 Smith, L. C. 286. 
 
 ^ See 8 C. & P. 594, per Ludlow, Serj., arguendo. 
 
 " See per Littledale, J., in Rovve v. Brenton, 3 11. & R. 268. 
 
 ' See per Ld. Tenterden, in id. 
 
CHAP. XI.] WHEEE ENTRY IS SOLE EVIDENCE OF CHAEGE. 573 
 
 is a question of more difficulty, and the authorities on the subject 
 are highly conflicting. On the one hand, two Nisi Prius decisions 
 may be cited, — namely, Doe v. Vowles,^ and Doe v. Burton,^ — which 
 seem distinctly to 'negative the admissibility of such evidence. 
 In the first case it became necessary to show that a mortgagee, 
 through whom the plaintiff claimed, had repaired the premises in 
 dispute ; and for this purpose, the plaintiff produced a receipted 
 bill for the repairs, in the handwriting of a deceased carpenter, 
 which had been found among the mortgagee's papers. An objec- 
 tion was raised to the reception of this paper as not containing 
 any statement against the interest of the carpenter ; since, though 
 it showed that his demand had been paid, it furnished the only 
 evidence that such a demand had ever existed. Mr. Justice 
 Littledale rejected the evidence, observing, that " the cases had 
 gone quite far enough." In the other case the evidence tendered 
 was of a similar nature, excepting only that, instead of being a 
 bill and receipt, it was an entry in a deceased tradesman's book, 
 showing that he had done certain work, and had been paid for it. 
 Mr. Baron Gurney refused to admit this evidence, apparently relying 
 on the authority of Doe v. Vowles. 
 
 § 676. On the other hand. Lord Denman,^ Lord Wensleydale,* § 610 
 and Sir George Jessel,^ appear, on separate occasions, to have ad- 
 mitted such entries, and the last two very learned judges are stated 
 to have expressly disapproved of Doe v. Vowles, saying that they 
 thought it contrary in principle to Higham v. Eidgway.® On ex- 
 amining, however, the case of Higham v. Eidgway, it scarcely seems 
 to furnish a safe guide on the subject ; for there it was proved by 
 evidence aliunde, that the service charged for in the account had in 
 fact been performed ; and although Lord EUenborough first lays 
 down the general doctrine, that " the evidence was admissible upon 
 the broad principle on which receiver's books have been admitted, 
 — namely, that the entry made was in prejudice of the party making, 
 it,"'' — he afterwards, in two different parts of his judgment, 
 
 "' 1 M. & Rob. 261. 2 9 c. & p 254. 
 
 ^ R. V. Hendon, cited arguendo, in 9 C. & P. 255. 
 
 " R. V. Lower Heyford, cited 2 Smith, L. 0. 283. 
 
 ^ Taylor v. Witham and WitLam v. Taylor, L. R., 3 Ch. D. 605 ; 45 L. ,T., 
 Cli. 798, S. C. ^ 10 East, 109. ? Id. 117. 
 
574 ENTRIES, WHEN EVIDENCE OF COLLATEEAl MATTERS. [PAET II. 
 
 adverts to the fact, that the work, for which the charge was made, 
 was proved to have heen done by other evidence.^ But still, — in- 
 dependent of this case, — the view of the law taken by Lords Denman 
 and Wensleydale and the present Master of the EoUs will probably 
 be upheld ; for, although it may be urged that, whUe that part of 
 an entry which is in the writer's own favour stands unconfirmed, 
 suspicions may be entertained that the whole statement is a 
 fiction ; ^ an answer to this argument is found in the improbability 
 that any tradesman would, without an assignable motive, first enter 
 a false claim on one side of his book, and then admit its having 
 been satisfied on the other. Moreover, as the requiring corrobo- 
 rative proof of the claim must tend to embarrass the trial by raising 
 collateral issues, and as the very impossibiUty of obtaining such 
 proof is often the sole cause, which renders it necessary to have 
 recourse to the entry at all ; it seems naturally to follow, that the 
 admission of such entries ought on every ground, whether of justice 
 or expediency, to be regarded as a less evil than their rejection. 
 
 § 677. The case of Higham v. Eidgway,^ — though it throws but § 611 
 little light on the subjeot discussed in the preceding section, — is 
 highly important, as showing that entries may be received in evi- 
 dence of collateral and independent matters, which, though forming 
 part of the declaration, are not in themselves against the interest of 
 the declarant. In that case, to prove on what day a child was born, 
 the book of the accoucheur, who had attended the mother in her 
 confinement, was produced, and as his charge for such attendance 
 on a day specified was marked iu the book as paid, this entry was 
 admitted as evidence of the date of the birth. Lord EUenborough, 
 in pronouncing judgment, observes, " It is idle to say that the word 
 paid only shall be admitted in evidence without the context, which 
 explains to what it refers : we must therefore look to the rest of the 
 entry, to see what the demand was, which he thereby admitted to 
 be discharged."* So, in Doe v. Eobson,^ the entry in a book of a 
 deceased attorney of charges paid for a lease as drawn on a certain 
 day, was held to be evidence that the lease was drawn on that day. 
 
 ' 10 East, 117, 119. 2 2 Smith, L. C. 283. 3 ^q East, 109. 
 
 « Id. 117. 
 
 15 East, 32. See, also, In the goods of Thomas, 41 L. J., Pr. & Mat. 32. 
 
CHAP. XI.] ENTEIES, WHEN EVIDENCE OF COLLATERAL MATTERS. 575 
 
 § 678. In^ a later case,^ the judges, — while intimating an opinion, § 611 
 that, if the point were res nova, it would be more reasonable to 
 hold, that the memorandum of a receipt of payment was admissible 
 only to the extent of proving that a payment had been made, and 
 on what account, thus giving it the effect only of verbal proof 
 of the same payment, — acknowledged that the authorities had 
 gone beyond that limit, and that the entry of a payment against 
 the interest of the party making it, had been held to have the effect 
 of proving the truth of other statements contained in the same 
 entry, and connected with it. In that case, A., B. and 0. had made 
 a joint and several promissory note for SOOl., and a partial payment 
 had been made by A., which was indorsed by the payee upon the 
 note in these terms, — " Eeceived of A. the sum of 280Z. on account 
 of the within note, the 300Z. having been originally admanced to CJ" 
 An action having been brought by A. to recover contribution from 
 B. " as a co-surety," the court held that, as the payee was dead, 
 the indorsement was admissible evidence of the whole statement 
 contained in it, and was consequently evidence, not only of the 
 payment of the money, but of the fact that C. was the principal 
 debtor ; leaving the effect of such proof to be determined by the 
 jury. 
 
 § 679. Again, in the case of Marks v. Lahee,^ the plaintiff, in § 612 
 order to prove a tender and refusal, offered in evidence two entries, 
 which had been made by a deceased clerk of his attorney in the 
 day-book of the office. By the first, the clerk acknowledged the 
 receipt of lOOL from his employer, for the purpose of making a 
 tender to the defendant. The second entry was as follows : "Re 
 Colnaghi, attending Mr. Lahee ; tendering him lOOZ. for each of 
 the plates, and the etching of the Queen separately ; when he de- 
 clined to let me have same, and said he had no objection to deliver 
 up the impressions, upon payment of the expenses of making 
 them." An objection was taken to the admissibility of the second 
 entry, on the ground that it did not charge the party making it, but 
 
 ' Gr. Ev. § 152, in great part. 
 
 ^ Davies v. Humplireys, 6 M. & W. 153, 166. See, also, Percival v. Nanson 
 7 Ex. K. 1. 33 Bing. N. C. 408 ; 4 Scott, 137 S. C. 
 
576 ENTRIES NO PEOOF OF INDEPENDENT MATTERS. [PART II. 
 
 rather discharged him, as showing that he had fulfilled his duty ; 
 that the second entry must be taken by itself, because the first did 
 not proTe the tender ; and being so taken, there was nothiug to 
 show that the clerk did not tender his own money ; in which case 
 the entry contained nothing to charge him. The objection, how- 
 ever, was overruled, and Chief Justice Tindal observed, that if an 
 action had been brought by the employer against the clerk for 
 money had and received, the entry would have been material evi- 
 dence to show that he had received lOOL, and had not disposed of 
 it according to his instructions ; so that it remained in his hands 
 to be accounted for to the employer. In such an action the em- 
 ployer could not have relied on the first entry alone ; but must have 
 further shovm that the object, for -which the money was placed in 
 the clerk's hands, had not been attained.^ The case of Stead v. 
 Heaton^ carries this doctrine to the extreme verge of the law.^ 
 There, in order to establish the existence of a customary payment, 
 two entries in a parish book were put in. The first stated the 
 custom, and the second, which was written on the same page, was 
 as follows : — "Eeceived of Haworth, who this year disputed this our 
 ancient custom, but afterwards paid it, 81." The court held that 
 both entries were admissible, the latter as charging the parish 
 officers with the receipt of the money, the former as immediately 
 preceding the latter, and being referred to in it.* 
 
 § 680. It must not be supposed from the preceding cases, that ^ (313 
 because a document contains entries against interest, it will be ad- 
 missible in proof of independent matters, which appear as separate 
 items unconnected with such entries, and which, consequently, need 
 not be read in order to explain them.^ Such is not the law ; and 
 whatever doubts might once have been entertained on the subject," 
 it is now finally determined, that if an account be rendered by a 
 
 ' 3 Bing. N. 0. 419. 
 
 2 4 T. E. 669. See, also, May. of Exeter v. Warren, 5 Q. B. 773. 
 
 3 Per Alderson, B., in Knight v. Waterford, 4 Y. & C, Ex. E. 294. 
 ■* See Musgrave v. Emmerson, 10 Q. B. 326. 
 
 ^ Per Ld. Lyndlinrst, in Rudd v. Wriglit, cited 1 Ph. Ev. 314, 315 ; 4 Y. 
 & C, Ex. E. 294. 
 « BuUer v. Michel, 2 Price, 399. 
 
CHAP. XI.] ENTRIES NO PEOOF OF INDEPENDENT MATTERS. 577 
 
 steward containing on one side items charging himself with the 
 receipt of moneys, and on the other side items discharging him by 
 showing how the moneys received had been disbursed, the dis- 
 charging entries will not be admissible in evidence, unless they are 
 necessary to explain the charging entries, or are expressly referred 
 to by them.^ For instance, in the case of Knight v. The Marquis 
 of Waterford,^ the accounts of a deceased steward were tendered in 
 evidence, with the view of showing that former lords of the manor 
 had been liable to pay poor-rates on the tithes. On one side of 
 these accounts the steward acknowledged the receipt of rent for 
 tithes from a tenant ; and on the other side was an entry in dis- 
 charge of the former item, by allowing the tenant a certain sum for 
 poor-rates on the tithes. Mr. Baron Alderson rejected the second 
 entry, on the ground that it was not directly connected with the 
 first item, though made about the same time ; but his lordship 
 added that, if the amount charged had been stated to be a sum less 
 by the deduction of the opposite side of the account, it might then 
 possibly have been admissible, on the authority of Stead v. Heaton. 
 
 § 681.^ In order that declarations against interest should be re- § 614 
 ceived in evidence, it is not necessary, — as was formerly thought,* — 
 that the declarant should have been competent, if living, to testify 
 to the facts contained in the declaration.^ Neither is it material, 
 so far at least as regards the admissibility of declarations, whether 
 the matters stated therein are or are not provable by living witnesses 
 who might have been called.^ Moreover, no objection can be taken 
 to an account, in which a deceased agent charges himself with the 
 receipt of money, on the ground that it does not appear by the 
 account itself for whom the sums were received ; provided it can be 
 shown aliunde that they were in fact collected for a third person.'' 
 
 > Doe V. Beviss, 18 L. J., C. P. 128 ; 7 Com. B. 456, S. C. ; Wialey v. 
 CarUsle, 17 Ir. Law R., N. S. 792. 
 
 2 4 Y. & C, Ex. R. 283, 294, 295. 
 
 3 Gr. Ev. § 153, in part. 
 
 ^ See per Bayley, J., in Higliam v. Ridgway, 10 East, 123. 
 
 5 Gleadow v. Atkin, 1 C. & M. 410, 423, 424 ; Short v. Lee, 2 Jac. & W. 
 489. 
 
 6 Middleton v. Melton, 10 B. & C. 317, 327, per Parke, J. ; ante, § 641. 
 
 7 Rowe V. Brenton, 3 M. & R. 268—270. 
 
 p p 
 
578 ENTRIES AUTHORISED BY PARTIES CHARGED. [PART II. 
 
 § 682. To render accounts admissible as the declarations of a § 615 
 deceased person charging himself, it is not necessary that they 
 should be in his handwriting, and should bear his signature ; but 
 they will be received in evidence, if they were written by him 
 either whoUy^ or m part,^ though they were not signed ; or if they 
 were signed by him, though they were written by a stranger.^ 
 Neither can any objection be raised to their admission, though 
 they were neither written nor signed by the deceased, if either 
 direct proof can be furnished that they were written by his autho- 
 rised agent,* or if that fact can be indirectly established, as, for 
 instance, by showing that the deceased subsequently adopted the 
 accounts as his own, and delivered them in at an audit ; ^ nor does 
 it signify in such a case, whether the party who actually wrote the 
 accounts be alive or dead at the time of the trial, though, in the 
 former event, his non-production may be matter of observation to 
 the jury.^ But if no proof can be given that the account was 
 either written, or signed, or authorised, or adopted, by the deceased 
 person made chargeable thereby, it cannot be received ; and, 
 therefore, where a rental, ia which a deceased steward was debited 
 with the receipt of certain payments, was written by a party since 
 dead, styling himself clerk to such steward, the court refused to 
 receive it as a declaration against the interest of the steward, as 
 no parol evidence had been given to show that he ever employed 
 the writer to make the entries ; and it was equally inadmissible as 
 made against the interest of the clerk, because it did not purport 
 to charge himJ After the lapse of thirty years, the handwriting 
 of the account need not be proved, provided the book containing 
 it be produced from the proper custody.^ 
 
 1 Rowe V. Brenton, 3 M. & R. 267—269. 
 
 2 Doe V. Colcombe, C. & Marsli. 155, per Coleridge, J. 
 
 3 Doe V. Staoey, 6 0. & P. 139, per Tindal, C. J. 
 " Bradley v. James, 13 Com. B. 822. 
 
 5 Doe V. Hawkins, 2 Q. B. 812 ; 1 G. & D. 551, S. 0. ; Doe v. Mobbs, C. & 
 Marsli. 1 ; May. of Exeter v. "Warren, 5 Q. B. 773 ; Att-Gen. v. Stephens, 1 
 Kay & J. 740, per Wood, V.-O. 
 
 « 2 Q. B. 217, per Patteson, J. 
 
 ■ Baron de Rutzen v. Farr, 4 A. & E. 53 ; 5 N. & M. 617, S. C. 
 
 « Wynne v. TyrwMtt, 4 B. & A. 376 ; May. of Exeter v. Warren, 6 Q. B. 
 
CHAP. XI.] ENTRIES BY AGENTS PEOOP OF AGENCY. 579 
 
 § 683.^ Where the eyidence consists of entries made by persons § 613 
 acting for others in the capacity of agents, stewards, or receivers, 
 some proof of such agency is generally required, previous to their 
 admission ; but here a distinction has been taken, to the effect 
 that, where the office is pullic and must exist, the law will presume 
 that a person who acts in it has been regularly appointed ; but 
 that where it is merely private, some prehminary and independent 
 evidence must in general be adduced of the existence of the office, 
 and of the appointment of the particular agent or incumbent.^ 
 It seems that the mere antiquity of the book containing the entry 
 affords no sufficient ground for dispensing with this preliminary 
 proof, and therefore entries have been rejected for want of it, 
 though apparently made as much as fifty, seventy, and even one 
 hundred and sixty years before the trial.^ In Davies v. Morgan, 
 where the entry bore date 1673, Mr. Baron Bayley, in rejecting 
 it, observed, " The character of the evidence must be established 
 before the entry is read ; you cannot read it to show the position 
 of the party making it; that must be proved aliunde."* So, in 
 Short V. Lee, Sir Thomas Plumer said, with reference to a book 
 seventy years old, which purported to have been kept by a tithe-' 
 collector named Beale, " If the writings of persons not invested 
 with the proper characters were received, nothing could be more 
 dangerous to property. Suppose that Beale was not the person 
 authorised to collect the tithes, but nevertheless had for some 
 purpose made these entries ; then, if after his death the book 
 purporting to be a collector's book was to be evidence to prove 
 that he was collector, and his being collector was to prove the 
 entries to be correct, the consequence would be, that the rights 
 of the rector on the one hand, or those of the parishioners on the 
 other, would be exposed to the greatest danger, and perhaps from 
 the writings of a person having a contrary interest." ^ Still, if 
 
 773 ; Doe v. Michael, 17 Q. B. 276 ; Att.-Gen. v. Stephens, 1 Kay & J. 724, 
 740. 
 
 1 Gr. Ev. § 154, in part. 
 
 2 Short V. Lee, 2 Jac. & W. 467, 468, 474, 475, per Plumer, M. R. 
 
 ' Manby v. Curtis, 1 Price, 225 ; Short v. Lee, 2 Jac. & W. 466, 467 ; Davies 
 t'. Morgan, 1 C. & J. 590, 591. M C. & J. 591. 
 
 - 2 Jac. & W. 467, 468. 
 
 p p 2 
 
680 DECLARATIONS AGAINST PROPEIETAKY INTEREST. [PAET II. 
 
 ancient books come from the proper repository, slight proof of the 
 official character of the writer will usually be sufficient to warrant 
 their admission ; and if they contain strong internal eyidence of 
 their actually being what they purport to be, they may, it seems, on 
 that ground alone be submitted to the jury.^ 
 
 § 684. Under the head of declarations against propiietary § 617 
 interest, may be classed the statements made by persons while in 
 possession of land, explanatory of the character of their posses- 
 sion ; and it is now well settled that such declarations, if made in 
 disparagement of the declarant's title, are receivable, not only as 
 original admissions against himself and all persons who claim 
 title through him,^ but also as evidence for or against strangers.^ 
 Whether in this latter event they are admissible in the lifetime of 
 the declarant, or only in cases where his death can be proved, is a 
 point which does not appear to have been distinctly decided. In 
 most of the cases where the evidence has been received, the 
 declarant was dead ; * but on two occasions, at least, the evidence 
 was admitted, though the declarant was living.^ The only ground 
 on which it can be contended that these declarations are receivable 
 
 1 Doe V. Thynne, 10 East, 206, 210 ; Brune v. Thompson, C. & Marsh. 36— 
 39, per Ld. Denman ; May. of Exeter v. Warren, 5 Q. B. 773 ; Doe v. Michael, 
 17 Q. B. 276 ; Att.-Gen. v. Stephens, 1 Kay & J. 724, 740. See ante, § 612. 
 
 2 LcL Trimlestown v. Kemmis, 9 CI. & Ein. 780, 784, 785 ; Doe v. Pettett, 
 5 B. & A. 223 ; Doe v. Austin, 9 Brng. 41. Eor the American authorities, see 
 West Camhridge v. Lexington, 2 Pick. 536 ; Little v. Libhy, 2 Greenl. 242 
 Eankin v. Tenhrook, 6 Watts, 388, 390 ; Jackson v. Bard, 4 Johns. 230, 234 
 Weidman v. Kohr, 4 Serg. & S. 174 ; Gihblehouse v. Strong, 3 Eawle, 437 
 Davies v. Campbell, 1 Iredell, 482 ; Crane v. Marshall, 4 Shepl. 27. 
 
 3 Carne v. NicoU, 1 Bing. N. G. 430 ; 1 Scott, 466, S. C. ; Doe v. Langfield, 
 16 M. & W. 497 ; Doe v. Jones, 1 Camp. 367 ; Davies v. Pierce, 2 T. R. 53 ; 
 Doe V. Rickarby, 5 Esp. 4 ; Peaceable v. Watson, 4 Taunt. 16 ; Doe v. Coul- 
 thred, 7 A. & E. 235 ; Garland v. Cope, 11 Ir. Law E. 514 ; Mountnoy v. 
 Collier, 1 E. & B. 630 ; Gery v. Redman, L. R., 1 Q. B. D. 161 ; 45 L. J., 
 Q. B. 267, S. C. 
 
 ■• Carne v. Nicoll, 1 Bing. N. C. 430 ; 1 Scott, 466, S. C. ; Doe v. Jones, 1 
 Camp. 367 ; Davies v. Pierce, 2 T. R. 53 ; Peaceable v. Watson, 4 Taunt. 16 ; 
 Doe V. Coultkred, 7 A. & E. 235 ; Doe v. Pettett, 5 B. & A. 223. 
 
 * Walker v. Broadstock, 1 Esp. 458, per Thomson, B. ; Doe v. Rickarby, 5 
 Esp. 4, per Ld. Alvanley. In Papendick v. Bridgwater, 5 E. & B. 166, Walker 
 1!. Broadstock was denied to be law. 
 
CHAP. XI.] DECLAKATIONS AGAINST PEOPKIETAEY EVIDENCE. 581 
 
 during the declarant's lifetime appears to be that they are state- 
 ments accompanying the acts of possession, and as such consti- 
 tuting part of the res gestae ; but this argument proves too much, 
 as the effect of it would be to let in all declarations of the occupier, 
 whether in disparagement or in support of his title ; an extension 
 of the rule which, however consistent it may be with principle, is 
 certainly not warranted by judicial decisions.^ The safest course 
 therefore is to regard these declarations as merely receivable when 
 the declarant is dead, in which case they become good primary 
 evidence ; ^ and further to consider that their admissibihty depends 
 on the simple ground that they are made against the interest of the 
 declarant.^ 
 
 § 685. It should here be remembered that possession is prima § 618 
 facie evidence of seisin in fee simple;* and, consequently, any 
 declaration by the possessor that he is tenant in tail, or for life, or 
 for years, or by sufferance, as it makes strongly against his own 
 interest, may safely be received in evidence, on account "of its 
 probable truth.^ It matters not whether the declaration be made 
 verbally,^ or in writing,''' or by deed,^ or by will, even though it be 
 unproved,^ or in a statement of defence to an action,^" for the same 
 
 1 See Doe v. Wainwriglit, 8 A. & E. 700, 701. 
 
 2 Doe V. Langfleld, 16 M. & W. 513, 514, per Parke, B. 
 
 ' See Phillips v. Cole, 10 A. & E. Ill, where Ld. Denman, in pronouncing 
 the judgment of the court, observes, " It is clear that declarations of third 
 persons alive, in the ahsenoe of any community of interest, are not to be re- 
 ceived to affect the title or interests of other persons, merely because they are 
 against the interests of those who make them." * Ante, § 123. 
 
 ° Chambers v. Bernasconi, 1 C. & J. 457, per \A. Lyndli-uist ; Peaceable v. 
 Watson, 4 Taunt. 17, per Sir J. Mansfield, C. J. ; Crease v. Barrett, 1 C. M. & 
 E. 931 ; 5 Tyr. 473, S. C, per Parke, B. ; Doe v. Langfield, 16 M. & W. 497. 
 
 « Came v. NicoU, 1 Bing. N. C. 430 ; 1 Scott, 466, S. C. ; Baron de Bode's 
 case, 8 Q. B. 243, 244 ; E. v. Birmingham, 31 L. J., M. C. 63 ; 1 B. & S. 763, 
 S. C. ; E. V. Exeter, 4 Law Eep., Q. B. 341 ; 38 L. J., M. C. 127 ; 10 B. & S.' 
 433, S. C. 
 
 ' Doe V. Jones, 1 Camp. 367 ; E. v. Exeter, 4 Law Eep., Q. B. 341 ; 38 
 L. J., M. C. 127 ; & 10 B. & S. 433, S. C. 
 
 8 Doe V. Coulthred, 7 A. & E. 235 ; Garland v. Cope, 11 Ir. Law E. 514 ; 
 Sly V. Sly, L. E., 2 P. D. 91. 
 
 ' O'SuUivan v. Burke, I. E., 9 C. L. 105. 
 
 1" Ld. Trimlestown v. Kemmis, 9 CI. & Fin. 779, 780. 
 
582 DECLARATIONS AGAINST PROPRIETAEY EVIDENCE. [PAET II. 
 
 principle applies in all these cases ; but it must relate to matters, 
 either within the declarant's own knowledge, or on which he has 
 himself formed an opinion ; and therefore a statement of defence, 
 narrating what the declarant has heard another person state re- 
 specting his title, is not admissible to defeat his estate, at least if 
 he does not add that he believes such statement to be true.^ 
 
 § 686. It is difBcult to fix with precision how far these declara- § 619 
 tions are admissible as evidence of the facts contained in them. 
 They have been received to show the name of the landlord under 
 whom,^ and the identity of the will under which,^ the declarant held, 
 the amount of rent that was paid,* the fact of the payment of rent,^ 
 the extent of the tenement that was occupied,® and the fact that it 
 was freehold and not copyhold ; '^ and the courts seem now inchned 
 to admit them, not only as proof of the interest which the declarant 
 enjoyed in the premises, but as evidence of any fact which is not 
 foreign to the statement against interest, and which forms sub- 
 stantially a part of it.^ It appears that, in all these cases, it must 
 be proved that the declarant was actually in possession of the land 
 in question ; since otherwise his declaration that he has a hmited 
 interest therein, may be regarded in the light rather of a statement 
 in his own favour than of one against his interest.^ Still, slight 
 evidence on this head will, it seems, suffice ; ^'^ and, therefore, where 
 a person was seen felling timber in a wood, this act of his, — 
 though probably he was in fact a mere labourer, — was held to be a 
 sufficient assertion of ownership to raise a presumption that he was 
 
 1 Ld. Trimlestown v. Kemmis, 9 Ch. & Fin. 780, 784—786, by tlie Lds., con- 
 firming the unanimous opinion of the judges. 
 
 ^ Peaceable v. Watson, 4 Taunt. 16 ; Holloway v. Eakes, cited by Buller, J., 
 in Davies v. Pierce, 2 T. E. 55 ; Doe v. Green, 1 Gow, R. 227. 
 
 3 Sly V. Sly, L. R, 2 P. D. 91. 
 
 ^ R. V. Birmingham, 31 L. J., M. C. 63 ; 5 B. & S. 763, S. C. 
 
 5 R. V. Exeter, 4 Law Rep., Q. B. 341 ; 38 L. J., M. C. 127 ; 10 B. & S. 
 433, S. C. 
 
 " Mountnoy v. Collier, 1 E. & B. 630. 
 
 ' Doe V. Jones, 1 Camp. 367. 
 
 8 R. 11. Birmingham, 31 L. J., M. C. 63 ; 1 B. & S. 763, S. C. 
 
 9 See Crease v. Barrett, 1 C. M. & R. 919, 931 ; 5 Tyr. 458, 473, S. C. 
 1" La Touche v. Button, I. R., 9 Eq. 166. 
 
CHAP. XI.] STATEMENTS IN DISPARAGEMENT OF TITLE. 583 
 
 possessed of the fee, and, consequently, to let in any statement 
 made by him as to who was the actual proprietor.^ 
 
 § 687. In applying this rule, care must be taken to distinguish § 620 
 between statements made by an occupier of land in disparagement 
 of his own title, and such declarations as merely go to abridge or 
 encumber the estate itself ; since, though the former are receivable, 
 the latter will be rejected. For instance, if an occupier state that 
 he is only tenant for life, this after his death will be admissible 
 evidence against a stranger : but if he admit that the property was 
 intersected by a public highway, or that a neighbour had an ease- 
 ment in the land in question, or that he himself was not entitled 
 to common of pasture in respect of it, such admission will only 
 bind himself and those who claim under him, and will be inad- 
 missible to establish the highway or the easement as against his 
 landlord or a stranger.^ The grounds for this distinction are 
 obvious ; for though it is scarcely possible to imagine any induce- 
 ment, which will lead a person possessed of premises in fee to 
 admit that he is only a tenant, many causes might induce a 
 tenant to acknowledge the existence of an easement or a highway, 
 which might be either not inconvenient, or even absolutely bene- 
 ficial, to him.^ So, a tenant, who was about to remove from one 
 farm to another, might readily feel an interest in denying the exis- 
 tence of rights attached to the former, with the view of increasing 
 the value of those which belonged to the latter.* 
 
 § 688. Entries contained in the books of deceased rectors or s g2i 
 vicars have long been admitted as evidence in favour of their suc- 
 cessors.^ The admissibility of this class of entries is regarded by 
 
 * Doe V. Arkwright, 5 C. & P. 575, per Parke, B. 
 
 2 E. V. Bliss, 7 A. & E. 550 ; Sdioles v. Chadwick, 2 M. & Eob. 507, per 
 Cresswell, J. ; Tickle v. Brown, 4 A. & E. 378, per Patteson, J. ; Papendiok v. 
 Bridgwater, 5 E. & B. 166. 
 
 ^ See R. V. Bliss, 7 A. & E. 551, per Ld. Denman ; Daniel i>. North, 11 East 
 375, per Le Blanc, J. 
 
 ■* Papendick v. Bridgwater, 24 L. J., Q. B. 292, per Erie, J. ; 5 E & B 166 
 182, S. C. ■ ' 
 
 5 See Daly v. Wilson, Milw. Ec. Ir. R. 658—660 ; Young v. Clare Hall 17 
 Q. B. 529. ' 
 
584 ENTKIES IN BOOKS OP DECEASED KECTOKS. [PAKT II. 
 
 some persons as anomalous ; ^ by some, as governed by the rule 
 whicb admits old leases, rent-rolls, surveys, &c. ;^ and by others, 
 as falling within the principle of the present exception.^ Sir 
 Thomas Plumer, in the case of Short v. Lee,* observed, that ' 
 it was too late to argue upon the rule, or upon what gave rise to 
 it ; whether it was the cursus Scaccarii, the protection of the 
 clergy, or the peculiar nature of property in tithes. " It is now," 
 said he, " the settled law of the land. It is not to be presumed, 
 that a person, having a temporary interest only, will insert a false- 
 hood in his book, from which he can derive no advantage. Lord 
 Kenyon has said, that the rule is an exception ; and it is so ; 
 for no other proprietor can make evidence for those who claim 
 under him, or for those who claim in the same right and stand 
 in the same predicament. But it has been the settled law as 
 to tithes, as far back as our research can reach. We must 
 therefore set out from this as a datum ; and we must not make 
 comparisons between this and other corporations. No corporation 
 sole, except a rector or vicar, can make evidence for his successor." 
 The rule, however, extends to admit the books of ecclesiastical 
 corporations aggregate,^ and, as it would seem, those also of lay 
 impropriators in fee ; though these last would certainly be open 
 to considerable suspicion, since a lay impropriator in fee, having 
 a permanent interest to advance, might possibly be induced to make 
 evidence for his heirs.^ 
 
 § 689. With respect to all these books, though the law admits § 622 
 them as evidence, juries will do well not to place implicit reliance 
 on the statements they contain ; for, in point of fact, the clergy, — 
 like members of all other professions, — are, or at least have been, 
 occasionally actuated by a strong esprit de corps, and the entries 
 in their books evince not unfrequently what in some quarters 
 would be considered as a commendable leaning in favour of the 
 rights of the church. General observations have sometimes been 
 
 ^ Outram v. Morewood, 5 T. R. 123, per Ld. Kenyon. 
 
 2 Stobart v. Dryden, 1 M. & W. 617, per Parke, B. 
 
 3 1 Pli. Ev. 308, 309. " 2 Jac. & W. 477, 478. 
 ' Id. 476—479. 
 
 '■ Id. 478 — 480, and cases there cited. 
 
CHAP. XI.] INDOKSEMENT OF PAET PAYM. ON BONDS AND BILLS. 585 
 
 made respecting these books, which may seem to authorise the 
 admission of any kind of statement contained in them. But 
 such books will be rejected unless the entries contain receipts of 
 money or ecclesiastical dues, or are, in other respects, apparently 
 prejudicial to the pecuniary or proprietary interests of the makers.-^ 
 And proof will be required, as in other cases, that the writer 
 was authorised to receive the money stated, and that he is 
 actually dead ; and further, that the document came from the 
 proper custody.^ 
 
 § 690. It remains only to notice a class of cases, which seems § 623 
 to fall within the principle now under consideration more natu- 
 rally than any other, though one eminent writer on the law of 
 evidence has treated it in connexion with entries made in the 
 course of business ; ^ we allude to those cases, where the indorse- 
 ment by the payee of the payment of interest, or of part payment 
 of the principal, on a bond, bill of exchange, or other negotiable 
 security, used to be tendered in evidence by his representatives 
 after his death, in order to bar the Statute of Limitations, or to 
 rebut the presumption of payment that would otherwise have 
 arisen from lapse of time. Now, it is obvious, that, although 
 such indorsements, if made before the demand became stale or 
 was affected by the Statute of Limitations, would be against the 
 interest of the payee, inasmuch as they would prevent him from 
 recovering the amount of the sums so indorsed ; yet, if they were 
 made at a subsequent period, the creditor would be under the 
 influence of a far stronger countervailing interest ; because, by 
 admitting a partial payment, he would keep alive his right to 
 recover the remainder of the debt. Hence, it became necessary 
 to show at what time the indorsement was really made ; for if it 
 were made before the creditor's remedy was impaired by lapse of 
 time, it was received;* if after that period, it was rejected.^ Still 
 
 1 1 Ph. Ev. 303 ; Ward v. Pomfret, 5 Sim. 475. 
 
 2 Gresl. Ev. 224 ; Carrington v. Jones, 2 Sim. & St. 135, 140 ; Perigal v. 
 Nicholson, Wightw. 63. s 1 Ph. Ev. 330 — 335. 
 
 * Searle v. Ld. Barrington, 2 Str. 826 ; 8 Mod. 278 ; 2 Ld. Ray. 1370 ; 3 
 Br. P. C. 593, S. 0. ; Bosworth v. Cotohett, 1 Ph. Ev. 333. 
 
 5 Turner v. Crisp, 2 Str. 827 ; Glynn v. Bk. of England, 2 Ves. Sen. 38, 43 ; 
 Briggs V. Wilson, 5 De Gex, M. & G. 12, 19, 20. 
 
586 INDORSEMENT OF PART PAYMENT ON BONDS OE BILLS. [PAET II. 
 
 the question remained, how was the time to be proved ? Might 
 it be inferred from the instrument itself, or was it necessary to 
 establish the fact by extrinsic evidence ? And on this difi&cult point 
 much contrariety of opinion prevailed.^ 
 
 § 691. Having thus stated briefly the old law relative to this § 624 
 subject, it remains to be shown how it has been affected by 
 statutable enactments. So far as notes, bills, and other writings 
 subject to the operation of the Statute of Limitations,^ are con- 
 cerned, the matter has been set at rest by Lord Tenterden's Act,^ 
 which enacts in § 3, that " no indorsement or memorandum of any 
 payment written or made upon any promissory note, bill of ex- 
 change, or other writing, by or on behalf of the party to whom such 
 payment shall be made, shall be deemed sufficient proof of such 
 payment, so as to take the case out of the operation of the said 
 statute."* An attempt was made a few years back to extend this 
 salutary provision beyond its legitimate limits. An action was 
 brought by the executor of the payee of a note against the maker, 
 and the plaintiff, in order to defeat the Statute of Limitations, 
 tendered in evidence a book, in which he himself, by the direction 
 of the testator, had entered two payments of interest, as having been 
 made to the testator by the defendant within the last six years. 
 These entries were objected to, on one ground, among others, 
 that their receipt in evidence would violate the spirit, if not the 
 words, of the enactment just cited ; but Sir John Jervis over- 
 ruled the objection, and the Court of Common Pleas upheld his 
 ruling.* 
 
 § 692. With respect to bonds and other specialties, the old doc- x 625 
 trine of presumption of payment from lapse of time has been 
 rendered nugatory by § 3 of 3 & 4 W. 4, c. 42, which enacts, that 
 all actions of debt for rent upon an indenture of demise, all 
 actions of covenant or debt upon any bond or other specialty, 
 
 ' See cases referred to, post, §§ 693 — 696. 
 
 2 21 J. 1, c. 16. 3 9 Q 4^ a X4. 
 
 ■• As to the Irish Law, see 16 & 17 V., c. 113, §§ 20—24. 
 
 ^ Bradley v. James, 13 Com. B. 822. 
 
CHAP. XI.J INDOESEMENT OP PAET PAYMENT ON SPECIALTIES. 587 
 
 and all actions of debt or scire facias upon any recognisance, &c., 
 shall be commenced and sued within twenty years after the cause 
 of such actions or suits ; while § 5 -^ contains a proviso, that, if 
 any acknowledgment shall have been made, either by writing 
 signed by the party liable by virtue of such indenture, specialty^ 
 or recognisance, or his agent, or by part payment or part satisfac- 
 tion on account of any principal or interest being then due 
 thereon,^ the person entitled to such action may bring it for the 
 money remaining unpaid and so acknowledged to be due, within 
 twenty years after such acknowledgment by writing, or part pay- 
 ment or part satisfaction as aforesaid ; and the plaintiff may, by 
 way of replication, state such acknowledgment, and that such 
 action was brought within the time aforesaid in answer to a plea 
 of the statute.^ As this Act contains no clause corresponding 
 with § 3 of Lord Tenterden's Act, it seems clear that, — provided 
 the point be properly raised by the pleading, — the acknowledgment 
 of the debt afforded by the payment of interest or part payment of 
 principal may, in the case of bonds and other specialties, be still 
 proved in the same manner as formerly ; that is, by producing the 
 document and showing that it bears indorsements of such pay- 
 ments, even though these indorsements were written or adopted 
 by the creditor himself, through whom the plaintiff claims. The 
 only difference between the old and new law is, that, whereas this 
 evidence was formerly admissible in answer to a plea of payment, 
 it is now received in support of a replication setting up an acknow- 
 ledgment by the defendant, where the original demand has been 
 met by a plea of the statute. 
 
 1 See post, §§ 1090, 1091. 
 
 2 In Eoddam i>. Morley, 26 L. J., Cli. 438 ; 1 De Gex & J. 1, S. C, it was 
 held that payment of interest on a bond hj the tenant for life for certain land 
 under the will of the ohUgor, prevented this statute from tarring the action 
 against the heirs and devisees in remainder, after the expiration of twenty 
 years from the time of the bond becoming due. See Pears v. Laing, 40 L. J., 
 Ch. 225, per Bacon, V.-C. ; 12 Law Rep., Eq. 41, S. C. But see Coope v. 
 Cresswell, 2 Law Eep., Ch. App. 112; 36 L. J., Ch. 114, S. C, overruling 
 S. C. as decided by Kindersley, V.-C. ; 35 L. J., Ch. 496 ; 1 Law Eep., Eq. 
 106, S. C. ; and Dickenson v. Teasdale, 1 De Gex, J. & S. 52 ; 32 L. J., Ch. 
 37, S. C. 
 
 3 As to the Irish Law, see 16 & 17 V., o. 113, §§ 20—24. 
 
588 EXTEINSIO EVIDENCE OF DATE OP INDORSEMENT. [PART II. 
 
 § 693. It becomes then important to solve the question whether § 626 
 it be, or be not, necessary to prove by evidence dehors the instru- 
 ment itself, that the indorsement, which is put in for the purpose 
 of establishing payment of interest, or part payment of principal, 
 was written at a time when it was against the interest of the creditor 
 to make it ; or, in other words, that it was written before his right 
 of action was barred by the statute ; and here, notwithstanding some 
 apparent authorities to the contrary, it is submitted that this 
 question must be answered in the affirmative. The principle of ad- 
 mitting such indorsements in favour of parties in privity with the 
 persons making them, is an anomaly in the law, which cannot be 
 supported by any of the reasons whereon the admissibility of rectors' 
 books is made to rest,'^ and which, so far as regards parol instru- 
 ments, has been expressly reprobated by the Legislature.^ It is 
 therefore not unreasonable to contend, that the courts should require 
 strict proof of the time when the indorsements were really made, 
 before they consent to admit them in evidence. In ordinary cases, 
 the law may safely presume that a document was written at the 
 time it bears date ; but an exception to this rule has been recog- 
 nised,* where, under the old law of bankruptcy, a note signed by a 
 bankrupt was put in by his assignees to support the petitioning 
 creditor's debt. Now, why was this exception allowed ? Clearly, 
 because it was so much to the interest of the petitioning creditor 
 to support the fiat, that he might coUusively induce the bankrupt 
 to antedate the instrument, by means of which his debt was to be 
 established. Then, does not this reasoning apply equally to the 
 indorsements under discussion,* which, if really made within twenty 
 years from the date of the bond, are received, because, being in such 
 case entries against the interest of the obligee, they are presumed 
 to be true ; but, if made beyond the twenty years, are rejected, 
 because, after the lapse of that time, it would be so obviously to the 
 advantage of the obligee to revive, by their means, the remedy 
 barred by the statute, that the law presumes they are false ? But 
 surely it is as easy to fabricate a date, as to fabricate an indorse- 
 
 ' Ante, § 688. 29^4^ c. 14, 
 
 ^ Ante, § 169. See also another exception noticed ante, §§ 169, 582. 
 « See Potez v. Glossop, 2 Ex. E. 194, 195, per Parke, B. 
 
CHAP. XI.J EXTEINSIC EYIDENCE OF DATE OF INDORSEMENT. 589 
 
 ment, of which the date forms part, and it seems a strange mode 
 of checking such fraudulent practices to say to an obligee, " Your 
 remedy on the bond is barred by the statute, and therefore if you 
 now indorse upon it any admission that you have received some 
 interest from the obligor, no credit, after your death, wUl be given 
 to such admission ; but carry on your deceit one step further, and 
 add to your indorsement a date, which will give it the semblance 
 of having been made while your remedy was unimpaired, and 
 then, at your death, your representatives may recover against the 
 obligor." 
 
 § 694. The authorities on this subject lay down no decisive rule. § 627 
 In the case of Searle v. Lord Barrington, extrinsic evidence was 
 given of the time when the indorsements were made,^ though that 
 fact is only mentioned loosely by Mr. Brown,^ and is not noticed at 
 all by the other reporters.^ In Bosworth v. Cotchetf it seems, 
 indeed, to have been unsuccessfully contended before the House of 
 Lords, that unless evidence were given, independent of the note, 
 to show when the indorsements were made, they could not be re- 
 ceived ; ^ but as that case is not reported, and is noticed so shortly 
 by our text writers^ that the grounds of the decision cannot be 
 ascertained, it will scarcely be considered as a binding authority. In 
 Sanders v. Meredith, in addition to an indorsement signed by the 
 obligee, a witness was called, who proved actual payment of the 
 interest.'' The case of Gleadow v. Atkin* throws but little light 
 upon the subject. There the payment of interest by the obligor to 
 a stranger was proved ; and in order to show that this payment had 
 been made on account of the bond, the executors of the obligee 
 relied on an indorsement in his handwriting, whereby he acknow- 
 
 1 Per Bayley, B., in Gleadow v. Atkin, 1 C. & M. 421, 424, stating the result 
 of his own researches. 
 
 ^ 3 Br., P. C, 594, where the reporter says that " other ciromnstantial evidence'' 
 was given to prove that the hond had not been satisfied. 
 
 3 2 Str. 826 ; 8 Mod. 278 ; 2 Ld. Ray. 1370. 
 
 ■• Judgment in Dom. Proc. 6 May, 1824. 
 
 * Per Vaughan, B., in Gleadow v. Atkin, 1 C. & M. 428. His lordship was 
 of counsel in Bosworth v. Ootchett. 
 
 6 1 Ph. Ev. 333 ; 3 St. Ev. 824. In this last work the case is cited as Parr 
 V. Ootchett. ? 3 M. & K. 116. « 1 C. & M. 410. 
 
590 HOW DATE OP INDOESEMENT PROVED. [PAET II. 
 
 ledged that the principal sum due on the bond was trust-money, to 
 which the stranger was entitled. This indorsement bore the same 
 date as the bond itself, and was countersigned by the attesting wit- 
 ness of the bond. The court held that it was admissible in evidence, 
 and rightly so ; because, in the first place, many circumstances 
 concurred to show that the indorsement was written on or about 
 the day of the date, and next, it signified little when it was written, 
 as it was equally against the interest of the obligee at all times.'^ 
 
 § 695. The only modern case which directly supports the pre- § 628 
 sumption in question is that of Smith v. Battens.^ There the 
 point was, whether an indorsement of interest on a promissory note, 
 which bore date before the 1st of January, 1829, when Lord Ten- 
 terden's Act came into operation, could be admitted in evidence for 
 the purpose of taking the case out of the statute, without some ex- 
 trinsic proof of the time when it was actually written ; and Mr. 
 Justice Taunton, — apparently on the authority of Bosworth v. Cot- 
 chett,^ — received it, observing, that, " in the absence of all evidence 
 to the contrary, he should assume that it was written at the time 
 it bore date." Now, although this case was subsequently cited with 
 approbation by the Court of Common Pleas,* and by Lord Justice 
 Turner, on a more recent occasion,^ as supporting the general 
 doctrine that documents are presumed to have been written at the 
 time they bear date, it may be doubted whether, with respect to the 
 particular question before the court, the case be law. To throw on 
 the defendant the burthen of proving negatively that the indorse- 
 ment was not written on the day of the date, was in fact to shut 
 the door upon all inquiry into the matter ; because, as the note 
 continued in the hands of the payee or his representatives, it was 
 scarcely possible for the maker to ascertain at what time any in- 
 dorsement was written upon it. 
 
 § 696. This view of the subject is much confirmed by the language § 629 
 
 1 See per Bayley, B., 1 C. & M. 417. M M. & Eob. 341. 
 
 ^ Cited in the Report as Parr v. Crotohett. 
 
 * In Anderson v. Weston, 6 Bing. N. C. 302, 303. 
 
 5 Briggs V. Wilson, 5 De Gex, M. & G. 20. 
 
CHAP. XI.] HOW DATE OF INDOBSEMENT PROVED. 591 
 
 of Lord EUenborough in Eose v. Bryant/ where the adminis- 
 trator of an obKgee of a bond, for the purpose of meeting certain 
 direct evidence of payment in the year 1794, proposed to read an 
 indorsement, which appeared to have been made on the bond in the 
 following year, and which acknowledged the receipt of interest and 
 of part of the principal. In refusing to admit this evidence, his 
 lordship said, "I thiafe you must prove that these indorsements 
 were on the bond at or recently after the times when they bear date, 
 before you are entitled to read them. Although it may seem at 
 first sight against the interest of the obligee to admit part payment, 
 he may thereby in many cases set up the bond for the residue of the 
 sum secured. If such indorsements were receivable whensoever 
 they may have been written, this would be allowing the obligee to 
 manufacture evidence for himself to contradict the fact of payment. 
 I have been at a loss to see the principle on which these receipts, 
 in the handwriting of the creditor, have sometimes been admitted 
 as evidence against the debtor ; and I am of opinion they cannot 
 be properly admitted, unless they are proved to have been written 
 at a time when the effect of them was clearly in contradiction to the 
 writer's interest." Perhaps the safest rule that can be laid down 
 on this subject is, that if the indorsement appear by its date to 
 have been written within the twenty years, the question may be left 
 to the jury, under all the circumstances of the case, whether it were 
 really so written ; ^ the law raising no presumption either way. 
 
 1 2 Camp. 321. 
 
 2 See per Vaughan, B., in Gleadow v. Atkin, 1 C. & M. 426. 
 
692 DECLARATIONS IN BUSINESS, WHY ADMISSIBLE. [PART II. 
 
 CHAPTER XII. 
 
 DECLARATIONS IN THE COURSE OF OFFICE OR BUSINESS. 
 
 § 697. In many of the cases cited in the preceding chapter, the § 630 
 admissibility of the statements and entries tendered in etidence 
 rested on the ground, not only of their being prejudicial to the 
 pecuniary or proprietary interests of the parties making them, but 
 of their having been made in the ordinary cowrse of business or 
 professional employment. The class of cases, therefore, which 
 forms the fifth exception to the rule rejecting hearsay evidence, 
 consists of such declarations as fall within this last category. The 
 considerations which have induced the courts to recognise this 
 exception appear to be principally these ; — that, in the absence of 
 all suspicion of sinister motives, a fair presumption arises that 
 entries made in the ordinary routine of business are correct, since, 
 the process of invention implying trouble, it is easier to state what 
 is true than what is false ; that such entries usually form a link in 
 a chain of circumstances, which mutually corroborate each other ; 
 that false entries would be likely to bring clerks into disgrace 
 with their employers ; that as most entries made in the course of 
 business are subject to the iaspection of several persons, an error 
 would be exposed to speedy discovery ; and that as the facts to 
 which they relate are generally known but to few persons, a relaxa- 
 tion of the strict rules of evidence in favour of such entries may 
 often prove convenient, if not necessary, for the due investigation of 
 truth.i 
 
 § 698.^ One of the earliest cases,' illustrative of this subject, §631 
 
 was an action for beer sold and delivered, the plaintiff being a 
 
 — J 
 
 1 Poole V. Dicas, 1 Bing. N. C. 653, per Tindal, C. J. ; 1 Ph. Ev. 319 ; 
 1 St. Ev. 348, 349. 2 q^ jjv. § 116, in part. 
 
 3 Price V. Torrington, 1 Salk. 285 ; 2 Ld.' Ray. 873 ; 1 Smith, L. G. 277, 
 S. C. ; Pitman v. Maddox, 2 Salk. 690 ; 2 Ld. Ray. 732, S. C. ; Roworoft v. 
 Basset, Pea. Add. Cas. 199, 200, per Le Blanc, J. 
 
CHAP. XII.] DEC^iAEATIONS IN COUBSE OP OFFICE OE BUSINESS. 593 
 
 brewer. In order to prove the delivery, it was first shown that, 
 in the usual course of the plaintiff's business, the draymen came 
 every night to the clerk of the brewhouse, and gave him an 
 account of the beer delivered during the day, which he entered 
 in a book kept for that purpose, to which the draymen set their 
 hands. An entry in this book, which stated the delivery of the 
 beer in question, and was signed by a drayman, whose signature 
 and death were proved, was then put in, and Lord Holt held that 
 it was suf&cient evidence to maintain the action. So, where the 
 question was whether a notice to quit had been served upon a 
 tenant, the indorsement of service upon a copy of the notice, made 
 by the attorney who served it, was held after his death to be 
 admissible in proof of that fact ; it being shown to be the ordinary 
 course of business in his of&ce to preserve copies of such notices, 
 and to indorse the service thereon.^ 
 
 § 699. So, an entry by a deceased solicitor in his diary, noting § 631 
 the fact of his having attended a client on a certain day on her 
 executing a deed of appointment, has been held sufficient evidence 
 of the due execution of the deed.^ So, an entry of the receipt of 
 rates by a deceased clerk of a collector, who was duly appointed, 
 has been received as evidence of the payment of the rates.^ So, 
 also, the books of the messenger of a bank, and of the clerk of a 
 notary, have been held admissible to prove the dishonour of a bill 
 of exchange by the acceptor, and notice to the indorser, upon proof 
 that the entries were made in the usual routine of business ; * and, 
 
 1 Doe V. Turford, 3 B. & Ad. 890 ; R. v. Cope, V C. & P. 726, 727, per 
 Ld. Demnan ; E. v. Dukinfield, 11 Q. B. 678 ; Stapylton v. Clougli, 2 E. & 
 B. 933. 
 
 2 Rawlins v. Riokards, 28 Beav. 370. See BrigM v. Legerton, 30 L. J., 
 Ch. 338 ; 2 De Gex, F. & J. 606, S. C. ; per Ld. Campljell, Ch., overruling in 
 part a decision by Romilly, M. R., in S. C, reported 29 L. J., Ch. 852 ; 29 
 Beav. 60, S. C. But see Kerin v. Davoren, 12 Ir. Eq. R., N. S. 352. 
 
 3 R, V. St. Mary, Warwick, 22 L. J., M. C. 109. 
 
 ■* Sutton V. Gregory, Pea. Add. Cas. 150, per Ld. Kenyon ; Poole v. Dicas, 
 1 Bing. N. C. 649 ; 1 Scott, 600 ; 7 C. & P. 79, S. C. ; Nichols v. Webb, 8 
 Wlieat. 326 ; Welch v. Barrett, 15 Mass. 380 ; Halliday ii. Martinett, 20 Johns. 
 168 ; Butler v. Wright, 2 Wend. 369 ; Hart v. Williams, id. 513 ; Nicholls v. 
 Goldsmith, 7 Wend. 160. 
 
 Q Q 
 
594 DISINCLINATION TO EXTEND THE RULE. [PART II. 
 
 upon like proof, the letter-book of the plaintiff, who was a merchant, 
 in which a deceased clerk had inserted what purported to be the 
 copy of a letter to the defendant, and had further made a memo- 
 randum stating that he had sent the original letter, has been 
 admitted as evidence of the fact of sending the letter, as also of its 
 contents, the defendant having been served with notice to produce 
 the original.^ So, where a poHce-constable had made, in the course 
 of his duty, a verbal report to his inspector, stating where he was 
 going and what he was about to do, this report was held to be 
 admissible as evidence for the Crown on the trial of an indictment, 
 which charged the prisoner with the murder of the policeman.^ 
 
 § 700. Though the cases cited above have established beyond § 632 
 dispute the existence of the exception now under discussion, 
 several of the judges have, of late years, evinced great disinclina- 
 tion to extend its principle beyond the limits strictly warranted by 
 antecedent decisions.^ Thus, in an action for the price of coals, 
 which had been sold at tfie pit's mouth, an entry was rejected, 
 which appeared to have been made in the following manner. In 
 the ordinary course of business, it was the duty of one of the 
 workmen at the pit, named Harvey, to give notice to the foreman 
 of the coal sold ; and the foreman, who was not present when the 
 coal was delivered, and who was unable to write, used to employ 
 a man named Baldwin to make entries in the books from his 
 dictation. Baldwin read over these entries every evening to the 
 foreman. At the time of the trial, Harvey and the foreman were 
 dead, and Baldwin was called to produce this book, with the view 
 of proving thereby the delivery of the coal in question ; but the 
 court held that it was inadmissible.* The ground of this decision 
 appears to have been, that, although the entries, being made 
 under the foreman's direction, might be regarded as made by 
 
 ' Pritt V. Fairclough, 3 Camp. 305 ; Hagedorn v. Reid, id. 379. See, also, 
 Champneys d. Peck, 1 Stark. R. 404 ; Doe v. Langfield, 16 M. & W. 497, 515 ; 
 East Union Rail. Co. v. Symonds, 5 Ex. R. 237 ; 6 Rail. Cas. 578, S. C. 
 
 2 R. V. Buckley, 13 Cox, 293, per Lush & Mellor, Js. 
 
 3 See Doe i). Skinner, 3 Ex. R. 84 ; Smitk v. Blakey, 36 L. J., Q. B. 156 ; 
 2 Law Rep., Q. B. 326 ; 8 B. & S. 157, S. C. 
 
 < Brain v. Preece, 11 M. & W. 773. 
 
CHAP. XII.j LEGISLATIVE RECOGNITIOK OF BULK. 595 
 
 him, yet, inasmuch as he had no personal knowledge of the facta 
 stated in them, but derived his information at second-hand from 
 the workman, there was not the same guarantee for the truth of 
 the entries as might be found in Price v. Torrington, Doe v. Tur- 
 ford, and Poole ». Dicas ; in all of which cases the party making 
 the entry had himself done the business, a memorandum of which 
 he had inserted in his book. 
 
 § 701. It seems more difficult to reconcile the case of Davis v. § 633 
 Lloyd ^ with sound principle, or with previous decisions. There, 
 in order to show that a Jew was of age, it was proved that Jewish 
 children were circumcised on the eighth day from their birth, and 
 that it was the duty of the chief rabbi to perform this rite, and 
 to make an entry thereof in a book kept at the synagogue. Upon 
 proof that the rabbi was dead, this book was tendered in evidence ; 
 but Lord Denman, after consulting Mr. Justice Patteson, rejected 
 it, though it does not appear on what grounds. In another case,^ 
 where it was necessary to show that a contract of service had 
 been for less than a year, proof was given that the employer, who 
 was dead, had in the course of his business been in the habit of 
 hiring farm servants, and that his practice was to enter the time 
 and terms of such hiring in a book kept by him for that purpose 
 This book, which contained entries of the service in question, 
 and showed that the servant had been engaged for half a year only, 
 was tendered in evidence ; but the court held that it was inadmis- 
 sible, on the ground that, although it might he the practice, it was 
 not the duty, of the master to make such entries. 
 
 § 702. The Legislature has in one instance recognised and § 634 
 acted upon the exception under discussion ; for the statute, which 
 now regulates the Civil Bill Courts in Ireland,^ enacts in § 19, 
 that "a book or books shall be kept by every officer appointed 
 for the service of process, in such form as shall be directed or 
 approved by the chairman or assistant barrister ; io which shall 
 be entered the names of the plaintiff and defendant by or against 
 whom any process shall be issued, the cause of action, the day on 
 
 1 C. & Kir. 275. ^ r. ^. Worth, 4 Q. B. 132. ^ 14 & 15 y., c. 57., Ir. 
 
 Q Q 2 
 
596 ENTEIES CONTEMPOEANEOUS WITH ACTS NAEEATED. [PAET 11. 
 
 which such process shall be received to be served, the day on 
 which such process shall be served or executed, the place where, 
 and the name or description of the person on or with whom such 
 process shall be served or left, and in case any such process shall 
 not have been duly served or left, then the cause of such service 
 not having been effected shall be stated; and each and every 
 process-ofl&cer shall attend, and produce such book or books to 
 the chairman or assistant barrister, at each and every sessions 
 of the peace, or shall cause such book or books to be produced to 
 such chairman or barrister in case of the unavoidable absence of 
 such process-officer ; and in case of the death, illness, or such 
 absence as aforesaid of any such process-officer, the book or books 
 of such process-officer, kept by him as aforesaid, verified on oath 
 as to his handwriting by some credible person, shall be produced 
 at the sessions, and shall there be prima facie evidence of the truth 
 of the several matters entered therein as aforesaid." 
 
 § 703. In many respects the rules which regulate the reception § 635 
 of this species of evidence, are the same as those which prevail 
 with respect to declarations against interest. For instance, the 
 death,^ the handwriting, and the official character,^ of the person 
 who made the entry must be proved ; and it should further appear 
 that he had no motive to misstate. In some particulars, however, 
 a marked distinction exists between the two classes of cases. 
 
 § 704. First, in order to render admissible entries made in the § 636 
 course of office or business, they must, — unlike declarations against 
 interest, — be proved to have been made contemporaneously with the 
 acts which they relate? This distinction was expressly pointed out 
 by Mr. Baron Parke in Doe v. Turford. " It is to be observed," 
 said the learned judge, " that in the case of an entry against 
 interest, proof of the handwriting of the party, and of his death, is 
 enough to authorise its reception ; at whatever time it was made 
 it is admissible : but in the other case [of an entry made in the 
 
 ' See Cooper u. Marsden, 1 Esp. 1, per Ld. Kenyon. See ante, § 669. 
 
 2 Doe V. "Wittcoml), 6 Ex. E. 601. 
 
 3 Doe V. Beviss, 18 L. J., 0. P. 128 ; 1 Com. B. 456, S. C. ; Doe v. Skinner, 
 3 Ex. E. 88, per Parke, B. 
 
CHAP. XII.J INADMISSIBLE TO PROVE INDEPENDENT MATTEBS. 597 
 
 course of business], it is essential to prove that it was made at 
 the time it purports to bear date ; it must be a contemporaneous 
 entry." ^ In using the word " contemporaneous," it is not meant 
 that the entry must have been made at the immediate time of the 
 occurrence ; but it will be sufficient if made within so short a 
 time after, as reasonably to be considered part of the transaction. 
 Thus, if the business be done in the morning, and the entry be 
 made in the evening of the same day,^ or perhaps even on the 
 following morning,* it will be sufficient ; though, where several 
 intermediate days had elapsed between the date of the transaction 
 and the time of inserting an entry of it in the book, the evidence 
 has been rejected ; * and in one American case, the interval of a 
 single day was held to constitute a valid objection.^ The fact 
 that the entry was made contemporaneously may, Hke any other 
 fact, be established either by direct testimony, or by proof of any 
 circumstances sufficient to raise a reasonable inference that such 
 was the case.^ 
 
 § 705. Secondly, it has been shown in the last chapter, that deck- § 637 
 rations, against interest are often admissible to prove independent 
 matters, which, though forming part of the entry, are not in them- 
 selves against the interest of the declarant.''' A stricter rule, how- 
 ever, prevails with respect to official or business entries, and it has 
 been held that, " whatever effect may be due to an entry made in 
 the course of 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 circumstances."^ In the case which called forth these obser- 
 
 1 3 B. & Ad. 897, 898, cited and approved by Park, J., in Poole v. Dicas, 
 1 Bing. N. C. 654, 655. 
 
 2 Price V. Torrington, 1 Salk. 285 ; Ray v. Jones, 2 Gale, 220 ; Curren v. 
 Crawford, 4 Serg. & R. 3, 5. 
 
 ^ Ingraliani v. Bockins, 9 Serg. & R. 285. 
 
 ** Forsythe v. Norcross, 5 Watts, 432. 
 
 * Walter v. Bollman, 8 Watts, 544. 
 
 « East Union Rail. Co. v. Symonds, 5 Ex. R. 237 ; 6' Rail. Cas. 578, S. C. 
 
 ? Ante, §§ 677—679. 
 
 ^ Chambers v. Bernasconi, 1 C. M. & R. 368, per Ld. Denman, pronouncing 
 the unanimous opinion of the Ex. Ch. See, also, Percival v. Nanson, 7 Ex. R. 
 3, per Pollock, C. B. 
 
598 HOW FAE COBROBOKATIVH EVIDENCE NECESSARY. [PAET II. 
 
 vations, it became necessary to show in what place the plaintiff had 
 been arrested ; and in order to do this, a certificate of a deceased 
 sheriff's officer, which had been returned by him to the office in 
 the ordinary routine of his duty, and which specified, among other 
 circumstances connected with the arrest, the spot where it took 
 place, was tendered in evidence ; but the judges of the Exchequer 
 Chamber, before whom the question was argued on a bill of 
 exceptions, — while they admitted, for the sake of argument, that 
 the certificate was evidence of the arrest itself, as also of the day 
 when it was made, since it might be necessary for the officer to 
 make known these facts to his principal, — were all clearly of 
 opinion that it could not be received to show the particular spot 
 where the caption took place, that circumstance being merely 
 collateral to the duty done.^ " This decision," as was afterwards 
 observed by Mr. Justice Park, " turned on the circumstance 
 that the sheriff's officer was going beyond the sphere of his duty 
 when he made an entry of the place of arrest, and that such an 
 entry therefore had no claim to be received as evidence of that 
 fact." 2 
 
 § 706. Some persons contend that the rule under discussion is § 633 
 subject to a third qualification, which certainly does not apply to 
 declarations against interest, and which is to this effect ; — namely, 
 that entries made in the course of office or business cannot be 
 admitted, unless corroborated by other circumstances which render 
 it probable that the facts therein recorded really occurred. This 
 opinion seems to rest, partly, on a supposed dictum of Mr. Justice 
 Taunton ; ^ partly, on a misapprehension of the rule adopted by 
 Lord Wensleydale, that an entry made in the course of business 
 
 1 Chambers v. Bemasconi, 1 C. M. & R. 347, 368 ; 4 Tyr. 531, S. C. 
 
 2 Poole V. Dicas, 1 Bing. N. C. 655. See, also, per Tindal, C. J., id. 651. 
 
 ^ Doe V. Turford, 3 B. & Ad. 898, where his lordship is made to say, " A 
 minute in writing like the present, made at the time when the fact it records 
 took place, by a person since deceased, in the ordinary course of his business, 
 corroborated by other circumstances which render it probable that * that fact oc- 
 curred, is admissible in evidence. Those corroborating circumstances must be 
 proved ; and here many such circumstances did appear." Mr. PhiUips suggest 
 that the words, " the entry was made when,'' have probably been omitted by 
 accident at the place marked with the star. 1 Ph. Ev. 324. 
 
CHAP. XII.] ADMISSIBLE, THOUGH BETTER EVIDENCE ATTAINABLE. 599 
 
 is admissible " where it is one of a chain or combination of facts, 
 and the proof of one raises a presumption that another has taken 
 place; "^ and partly, on the circumstance, that, in one or two of 
 the later cases on the subject, confirmatory evidence has in fact 
 been adduced, and its existence has been noticed by the court as 
 tending to establish the correctness of the entry.^ Still, Mr. 
 Phillipps is probably right in rejecting this qualification, and in 
 contending that, though corroborative evidence must naturally 
 add to the value of entries, it cannot be deemed essential to their 
 admissibility.^ 
 
 § 707. It has further been urged that entries in the course of § 639 
 business will only be received, when the nature of the case is such 
 as to render better evidence unattainable ; but this Umitation of 
 the rule has been ejxpressly rejected in Poole v. Dicas, where 
 Chief Justice Tindal, after observing that Doe v. Turford was no 
 authority for the proposition, since in that case persons might 
 have been present when the notice was served, continued thus : — 
 " In the present case, it would operate as a great hardship to 
 require the testimony of the persons who might have been 
 present. The clerk who presented the bill could scarcely, at the 
 distance of two years, point out who it was that answered his 
 application ; and if it were necessary to call all the persons who 
 resided at the place of presentment, the expense and incon- 
 venience would be enormous. The rejection of the evidence 
 which has been received would be a great injury to the commercial 
 classes, by casting an unnecessary difficulty on the holders of bills 
 of exchange." * 
 
 § 708. From the cases cited above it may be collected, that, in § 640 
 order to bring a declaration within the present exception, proof 
 must be given that it was made contemporaneously with the fact 
 
 1 Doe V. Tuiford, 3 B. & Ad. 897. 
 
 2 Id. 890, 897 ; Poole v. Dicas, 1 Scott, 600 ; 1 Bing. N. C. 649, 653, 654 
 S. C. 
 
 ■i 1 Ph. Ev. 324. See E. v. Cope, 7 C. & P. 726, 727, per Ld. Denman. 
 * 1 Bing. N. C. 654. The same rale prevails with respect to declarations 
 against interest, ante, § 681. 
 
600 SHOP-BOOKS OF PAETIES, HOW FAR ADMISSIBLE. [PART II. 
 
 which it narrates, and in the usual routine of business, by a 
 person whose duty it was to make the whole of it,^ who was him- 
 self personally acquainted with the fact, who had no interest in 
 stating an untruth, and who is since dead ; ^ and, provided all the 
 terms of this proposition be satisfied, it seems to be immaterial, 
 excepting so far as regards the weight of the evidence, that more 
 satisfactory proof might have been produced, th'at the declara- 
 tion is uncorroborated by other circumstances, or that it consists 
 of a mere oral statement, which has never been reduced to 
 writing.^ 
 
 § 709.* In the United States this principle has been extended § 641 
 to entries made by the party himself in his own shop-books ; ^ at 
 least, where they were evidently contemporaneous with the facts 
 to which they refer, and formed part of the -res gestae. Being the 
 acts of the party himself, they are received with the greater 
 caution ; but still they may be seen and weighed by the jury. 
 Though this doctrine is not in accordance with the principles of 
 the common law, at least as now understood,^ it seems to have 
 been regarded as sound law by the Legislature, if not by the 
 judges, in the time of James the First. In 1609 an Act was 
 passed'' "to avoid the double payment of debts," which clearly 
 recognised a tradesman's shop-books as instruments of evidence 
 on his behalf. No doubt this statute, in modern times, has been 
 treated in courts of justice as a dead letter ; but, strangely enough, 
 after lying dormant for upwards of two centuries, it was in the 
 year 1863 revivified and rendered perpetual by the Act of 26 & 27 
 
 ' Stapylton v. Clough, 2 E. & B. 933. 
 
 2 See Doe v. Wittcomb, 6 Ex. E. 601 ; 4 H. of L. Cas. 425, S. C. 
 
 3 Ante, § 672. 
 
 * Gr. Ev. § 118, in part. 
 
 ^ For the American statutes and decisions on the ahove subject, see notes to 
 § 641 of the first three editions of this work ; also notes to Gr. Ev. § 118. 
 
 " Ellis V. Cowne, 2 C. & Kir. 719, per "Wilde, C. J. ; Smyth v. Anderson, 
 7 Com. B. 21. In this last case the books of the plaintiff were tendered in 
 evidence by him, to show that he had, throughout a sale effected by means 
 of an agent, debited the defendant as principal. The court however rejected 
 the evidence. 
 
 ' 7 J. 1, c. 12. 
 
CHAP. XII.] SHOP-BOOKS OF PABTIES, HOW FAR ADMISSIBLE. 601 
 
 v., c. 125. What will be the practical result when this Parlia- 
 mentary freak is brought under the notice of the judges is a ques- 
 tion that.cannot readily be answered ; but thus much seems clear, 
 that the Act itself ought to be inserted in this place. It is a 
 curious specimen of quaint legislation, and it will at least furnish 
 useful hints when stale demands are sought to be enforced in the 
 county courts. 
 
 § 710. The Act is as follows : — " Whereas divers men of § 641a 
 trades, and handicraftsmen, keeping shop-books, do demand debts 
 of their customers upon their shop-books long time after the 
 same hath been due, and when, as they have supposed, the par- 
 ticulars and certainty of the wares delivered to be forgotten, then 
 either they themselves, or their servants, have inserted into their 
 said shop-books divers other wares supposed to be delivered to 
 the same parties, or to their use, which in truth never were 
 deHvered, and this of purpose to increase by such undue means 
 the said debt : (2.) And whereas divers of the said tradesmen 
 and handicraftsmen, having received all the just debts due upon 
 their said shop-books, do oftentimes leave the same books un- 
 crossed, or any way discharged, so as the debtors, their executors 
 or administrators, are often by suits of law enforced to pay the 
 same debts again to the party that trusted the said wares, or to 
 his executors or administrators, unless he or they can produce 
 sufficient proof, by writing or witnesses, of the said payments, 
 that may countervail the credit of the said shop-books, which few 
 or none can do in any long time after the said payments : (3.) Be 
 it therefore enacted by the authority of this present Parliament, 
 that no tradesman or handicraftsman keeping a shop-book as 
 is aforesaid, his or their executors or administrators, shall be 
 allowed, admitted, or received, to give his shop-book in evidence 
 in any action for any money due for wares hereafter to be de- 
 livered, or for work hereafter to be done, above one year before 
 the same action brought, except he or they, their executors or 
 administrators, shall have obtained or gotten a bill of debt or 
 obligation of the debtor for the said debt, or shall have brought 
 or pursued against the said debtor, his executors or adminis- 
 trators, some action for the said deht, wares, or work done, within 
 
602 MEECHANTS' ACCOTJNT-BOOKS ADMISSIBLE IN EQUITY. [PAET II. 
 
 one year next after the same wares delivered, money due for 
 wares delivered, or work done. 11. Provided always, that this 
 Act, or anything herein contained, shall not extend to ^ny inter- 
 course of traffick, merchandizing, buying, selUng, or other trading 
 or dealing for wares delivered or to be delivered, money due, or 
 work done or to be done, between merchants and merchants, 
 merchant and tradesman, or between tradesman and tradesman, 
 for anything directly falling within the circuit or compass of their 
 mutual trades and merchandize, but that for such things only 
 they and every of th^m shall be in case as if this Act had never 
 been made ; anything herein contained to the contrary thereof 
 notwithstanding. ' ' 
 
 § 711. Independent of all statutable sanction our courts of § 641b 
 equity have for years past, to a certain extent, acted upon the 
 principle of admitting shop-books in evidence, where accounts 
 have been required to be taken, and vouchers have been lost ; ^ 
 and now, by virtue of the Chancery Practice Amendment Acts, 
 whether for England or Ireland, they ^ are expressly empowered, 
 " in cases where they shall think fit so to do, to direct that in 
 taking accounts, the books of account in which the accounts 
 requiied to be taken have been kept, or any of them, shall be 
 taken as prima facie evidence of the truth of the matters therein 
 contained, with liberty to the parties interested to take such 
 objections thereto as they may be advised."^ 
 
 § 712.* In the administration of the Koman law, the production § 642 
 of a merchant's or tradesman's book of accounts, regularly and 
 fairly kept in the usual manner, was deemed presumptive evidence 
 
 1 Lodge V. Prichard, 3 De Gex, M. & G. 908, per Turner, Ld. J. See post, 
 §812. 
 
 2 Query -wlietlier this power can now be exercised by the Common Law 
 Divisions of the High Court 1 
 
 3 15 & 16 v., c. 86, § 54 ; 30 & 31 V., c. 44, § 159, Ir. See Lodge v. 
 Prichard, 3 De Gex, M. & G. 906 ; Newberry v. Benson, 23 L. J., Ch. 1003, 
 coram Lds. Js. ; Ewart v. Williams, 3 Drew. 21 ; 7 De Gex, M. & G. 68, S. C. 
 coram Lds. Js. ; Cookes v. Cookes, 3 New R. 97, per Lds. Js. ; O'Grady v. Corr, 
 I. R., 10 BcL. Ill ; Alford 1>. Clay, L R., 9 Eq. 215. 
 
 * Gr. Ev. § 119, verbatim. 
 
CHAP. XII.] TEADESMBN'S BOOKS— LAW OF FEANCE OF SCOTLAND. 603 
 
 (semi-plena probatio) ^ of the justice of his claim ; and in such 
 cases, the suppletory oath of the party (juramentum suppletivum) 
 was admitted to make up the plena probatio necessary to a decree 
 in his favour.^ By the law of France, too, the books of merchants 
 and tradesmen, regularly kept, and written from day to day without 
 any blank, when the tradesman has the reputation of probity, 
 constitute a semi-proof, and, with his suppletory oath, are received 
 as full proof to establish his demand.^ The same doctrine is 
 familiar in the law of Scotland, by which the books of merchants 
 and others, if kept with such a reasonable degree of regularity as 
 to be satisfactory to the court, may be received in evidence, the 
 party being allowed to give his own " oath in supplement " of such 
 imperfect proof. It seems, however, that a course of dealing, or 
 other " pregnant circumstances," must in general be first shown 
 
 1 Tliis degree of truth is thus defined by Masoardus : — " Non est igno- 
 randum probationem semiplenam earn esse, per quam rei gestae fides aliqua fit 
 judici : non tamen tanta ut jure debeat in pronuncianda sententia earn sequi." 
 1 de Prob., Qusest. 11, ii. 1, 4. 
 
 ^ " Juramentum (suppletivum) defertui ubiounque actor babet pro se — 
 aliquas conjeoturas, per quas judex inducatui ad suspioionem vel ad opiuan- 
 dxxm pro parte actoris." 3 Masc. de Prob., ConcL, 230, n. 17. The civilians, 
 however they may difi'er as to the degree of credit to be given to books of 
 account, concur in opinion, that they are entitled to consideration, at the dis- 
 cretion of the judge. They furnish at least the conjecturce mentioned by Mas- 
 cardus ; and their admission in evidence, with the suppletory oath of the 
 party, is thus defended by Paul Voet, De Statutis, § 5, cap. 2, n. 9 : — " An ut 
 credatur libris rationem, sen registris uti loquuntur, meroatorum et artificum, 
 licet probationibus testium non juventur ? Eespondeo, quamvis exemplo per- 
 niciosum esse videatur, quemque sibi privata testatione, sive adnotatione facere 
 debitorem. Quia tamen haec est mercatorum cura et opera, ut debiti et credit! 
 rationes diligenter confidant. Etiam in eorum foro et causis, ex aequo et bono 
 est judioandum. Insuper non admissio aliquo litium accelerandarum remedio, 
 commerciorum ordo et usus evertitur. Neque enim omnes prssenti pecunia 
 meroes sibi comparant, neque cujusque rei venditioni testes adhiberi, qui 
 pretia mercium noverint, aut expedit, aut congruum est. Non iniquum vide- 
 bitur Ulnd statutum, quo domesticis talibus instrumentis additur fides, modo 
 aliquibus adminiculis juventur." See, also, Hertius, de Coll. Leg. § 4, n. 68 ; 
 7 Stryk. de Sem. Prob., Disp. 1, cap. 4, § 5 ; Henoch, de Prses., lib. 2, Praes. 
 57, n. 20, and lib. 3, Pr£es. 63, n. 12. 
 
 ' Poth. ObL, Part iv. ch. 1, art. 2, § 4. By the Code Napoleon, mer- 
 chants' books are required to be kept in a particular manner therein 
 prescribed, and none others are admitted in evidence. Code de Commerce, 
 Liv. 1, tit. 2, art. 8—12. 
 
604 merchants' books should be ADMISSIBLB. [part II. 
 
 by evidence aliunde, before tbe proof can be regarded as amounting 
 to that degree of semi-plena probatio, which may be rendered 
 complete by the oath of the party.^ 
 
 § 713. Especial reference is here made to these laws, because it § 643 
 is conceived that the adoption of a somewhat similar practice in all 
 the English and Irish courts of justice would prove highly benefi- 
 cial ; especially in cases where actions are brought or defended by 
 the representatives of persons deceased. 
 
 ' Tait, Ev. 273—277. This degree of proof is there defined as "not 
 merely a suspicion, — but such evidence as produces a reasonable belief, 
 though not complete evidence." See, also, 2 Dickson, Ev. § 1179, et seq. ; 
 Glassf. Ev. 550 ; Bell, Dig. 678, 898. 
 
CHAP. XIII.] DYING DECLARATIONS, WHY ADMISSIBLE. 605 
 
 CHAPTEE XIII. 
 
 DYING DECLAEATIONS. 
 
 § 714.^ A SIXTH EXCEPTION to the rule rejecting hearsay evi- § 644 
 dence is allowed in the case of dying declarations. The general ^ j 
 principle on which this species of evidence is admitted, was a re- 
 stated by Lord Chief Baron Eyre to be this, — " that such 
 declarations are made in extremity when the party is at the point of 
 death, and when every hope of this world is gone ; when every 
 motive to falsehood is silenced, and the mind is induced by' the 
 most powerful considerations to speak the truth ; a situation so 
 solemn and so awful is considered by the law as creating an 
 obligation equal to that which is imposed by a positive oath in a 
 court of justice." ^ At one time an opinion prevailed that this 
 general principle warranted the admission of dying declarations 
 in aU cases, civil and criminal ; ' and it was expressly held, by 
 respectable authorities, that the dying declarations of a subscrib- 
 ing witness to a forged instrument could be given in evidence to 
 
 1 Gr. Ev. § 156, in part. 
 
 2 R. u Woodcock, 1 Lea. 502 ; R. «. Drummond, id. 338. Our great poet 
 in King John, lias put the same sentiment into the mouth of the wounded 
 Melun, who, finding himself disbelieved while announcing the intended 
 treachery of the Dauphin Lewis, exclaims : — 
 
 " Have I not hideous death within my view. 
 
 Retaining hut a quantity of life 
 
 Which hleeds away, even as a form of wax 
 
 Resolveth from his figure 'gainst the fire ? 
 
 What in the world should make me now deceive, 
 
 Since I must lose the use of all deceit ? 
 
 Why should I then be false ; since it is true 
 
 That I must die here, and live hence by truth ? " — Act 5 sc. 4. 
 ' It was even held that the dying declarations of a pauper respecting his 
 settlement were admissible, though that question involved both law and fact 
 R. ■!). Bury St. Edmunds, Cald. 486 ; Abbotun v. Dunswell, 2 Bott, 80. This 
 doctrine is now properly exploded. See R. v. Ahergwilly, 2 East, 63 ; Stobart 
 13. Dryden, 1 M. & W. 626. 
 
606 DYING DECLARATIONS, WHEN ADMISSIBLE. [PAKT II. 
 
 impeach it.^ A contrary doctrine, however, has since prevailed ; ^ 
 and it is now settled law, hoth in England and America, that proof 
 of this description is admissible in no civil case — and, in criminal 
 cases, only in the single instance of homicide, " where the death of 
 the deceased is the subject of the charge, and the circumstances of 
 the death are the subject of the dying declaration."^ 
 
 § 715. Thus, on a trial for robbery, the dying declaration of § 645 
 the party robbed has been rejected ; * and where a prisoner was 
 indicted for administering drugs to a woman, with intent to 
 procure abortion, her statements ia extremis were held to be 
 inadmissible.^ So, where a party, convicted of perjury, had 
 obtained a rule nisi for a new trial, and, pending the proceedings, 
 had shot the prosecutor, the Court of King's Bench, on cause 
 being shown against the rule, rejected the affidavit of the dying 
 declarations of the latter, as to the transaction out of which the 
 prosecution for perjury arose.^ After stating these strong cases, 
 it seems scarcely necessary to add, that, in an action of ejectment, 
 the court refused to receive the dying declarations of a servant of 
 the party last seised, as to the relationship of such party with the 
 lessor of the plaintiff ; '' and that in Ireland, on an indictment for 
 murder, the prisoner was not allowed to avail himself of the state- 
 ment of a stranger, who on his death-bed confessed that he had 
 
 1 Wright V. Littler, 3 Burr. 1255 ; 1 W. Bl. 349, S. C, per Ld. Jilansfield ; 
 stating, however, as reported in Blackstone, that no general rule could he 
 drawn from the admission of the evidence ia that particular case ; Anon., 
 ■per Heath, J., cited with apparent approbation by Ld. EUenborough in 
 Aveson v. Ld. Kinnaird, 6 East, 195, 196, and in Bp. of Durham ii. Beau- 
 mont, 1 Camp. 210, and explained by Bayley, J., in Doe v. Eidgway, 4 
 B. & A. 55. 
 
 2 See Stobart v. Dryden, 1 M. & W. 624^627, where the cases cited in the 
 preceding note were virtually overruled. See ante, § 568. 
 
 3 R. V. Mead, 2 B. & 0. 608 ; 4 D. & E. 120, S. C. ; R. v. Hind, 29 L. J., 
 M. C. 147 ; 8 Cox, 300, S. C. ; BeU, C. C. 253, S. 0. ; 1 East, P. C. 353 ; 
 Wilson V. Boerem, 15 Johns. 286. ■• R. v. Lloyd, 4 C. & P. 233. 
 
 ' E. V. Hutchinson, 2 B. & C. 608, n., per Bayley, J. ; R. v. Hind, 29 
 L. J., M. C. 147 ; 8 Cox, 300, S. C. ; BeU, C. 0. 253, S. C. In 1 Ph. Ev. 
 282, these declarations are stated to have been held admissible, but this is a 
 mistake. 
 
 6 R. V. Mead, 2 B. & C. 605 ; 4 D. & R. 120, S. C. 
 
 ? Doe V. Ridgway, 4 B. & A. 53. 
 
CHAP. XIII.] WHY LIMITED TO CASES OF HOMICIDE. 607 
 
 committed the crime. ^ Upon one occasion the judges appear to 
 have intrenched somewhat upon this rule ; for a prisoner being 
 indicted for poisoning his master, and it appearing that a maid- 
 servant had taken some of the same poison, and died in con- 
 sequence, her dying declarations were admitted on the part of 
 the prosecution, apparently on the ground that it was aU one 
 transaction.^ 
 
 § 716.* The reasons for thus restricting the admission of this § 646 
 species of evidence may be, — first, the danger of perjury in fabri- 
 cating declarations, the truth or falsehood of which it is impos- 
 sible to ascertain, — secondly, the danger of letting in incomplete 
 statements, which, though true as far as they go, do not consti- 
 tute " the whole truth," — and thirdly, the experienced fact, that 
 imphcit reliance cannot in all cases be placed on the declarations 
 of a dying person ; for his body may have survived the powers of 
 his mind ; * or his recollection, if his senses are not impaired, 
 may not be perfect ; or, for the sake of ease, and to be rid of the 
 importunity of those around him, he may say, or seem to say, 
 whatever they choose to suggest.^ As these, or the Uke con- 
 siderations, are thought in ordinary cases to counterbalance the 
 force of the general principle above stated, the exception under 
 review is restricted to cases of homicide, and is there recognised 
 on the sole ground of public necessity. For as it often happens 
 that no third person was present as an eye-witness to a murder, 
 and as the party injured, who is the usual witness in other cases 
 of felony, cannot himself be called, it foUows that if his dying 
 declarations could not be received, the murderer might often 
 
 1 E. V. Gray, Ir. Cir. E. 76, per Torrens, J. 
 
 2 E. V. Baker, 2 M. & Eob. 53, per Coltman, J., after consulting Parke, B. 
 The point would have heen reserved for the opinion of the judges, but the 
 prisoner was acquitted. s Qj. j;^ ^ ^^gg^ ^ ^^^^^ 
 
 * Thus, in King John, Prince Henry is made to say :— 
 
 " Death's siege is now 
 Against the mind, the which he pricks and wounds 
 With many legions of strange fantasies ; 
 Which, in their throng and press to that last hold, 
 Confound themselves." — Act. 5, sc. 7. 
 
 * Jackson v. Kniilen, 2 Johns. 31j 35, per Livingston, J. 
 
608 DANGER AND FEAE OF DEATH NECESSARY. [PAET II. 
 
 escape justice.'' Still, this restriction applies only to such declara- 
 tions as are tendered in evidence merely because they were made in 
 extremis ; for where they constitute part of the res gestae, or come 
 within the exception of declarations against interest, or the like, 
 they are admissible as in other cases ; irrespective of the fact, that 
 the declarant was under apprehension of death. 
 
 § 717.^ The persons whose declarations are thus admitted, are § 647 
 considered as standing in the same situation as if they were 
 sworn, the danger of impending death being equivalent to the 
 sanction of an oath. It follows, therefore, that when the declarant, 
 if Uving, would have been incompetent to testify by reason of 
 imbecility of mind, or tender age, his dying declarations are 
 inadmissible.^ On the other hand, as the testimony of an accom- 
 plice is admissible against his fellows, the dying declarations of a 
 felo de se are admissible against one indicted for assisting the 
 deceased in his self-murder.* And on the same ground, when a 
 husband is charged with the murder of his wife, or a vsdfe with the 
 murder of her husband, the dying declaration of the deceased will 
 be received.^ 
 
 § 718. It is essential to the admissibility of these declarations, § 648 
 first, that at the time when they were made the declarant should 
 have been in actual danger of death; secondly, that he should 
 then have had &full apprehension of his danger; * and lastly, that 
 death should have ensuedJ All these facts, therefore, must be 
 
 1 1 East, P. C. 353 ; 2 Johns. 35. " Gr. Ev. § 157, in part. 
 
 3 E. v. Pike, 3 C. & P. 598 ; K. v. Driimmond, 1 Lea, 338. In this last case, 
 the declaration of an attainted convict was rejected. This would no longer be 
 a ground of ohjection. 6 & 7 V., c. 85, § 1. ' 
 
 " B. V. Tinckler, 1 East, P. C. 354. 
 
 6 E. v. Woodcock, 1 Lea. 500 ; 1 East, P. C, 354, 356, S. C. ; Stoop's case, 
 Addis. 381. 
 
 « R. V. Cleary, 2 Post. & Fin. 850. 
 
 7 Sussex Peer., 11 01. & Fin. 108, 112, per Ld. Denman, who laid down the 
 law as follows : — " With regard to declarations made by persons in extremis, 
 supposing all necessary matters concurred, such as actual danger, death follow- 
 ing it, and a full apprehension, at the time, of the danger, and of death, such 
 declarations can be received in evidence ; but all these things must concur to 
 render such declarations admissible. Such evidence, however, ought to be 
 received with caution, because it is subject to no cross-examination.'' 
 
CHAP. XIII.] BELIEF OF IMPENDING DEATH NECESSAET. 609 
 
 proved to the satisfaction of the judge before the evidence will be 
 received.^ It^ is not, however, necessary that the declarant should 
 have stated that he was spealdng under a sense of impending death, 
 provided it satisfactorily appears, in any mode, that the declara- 
 tions were really made under that sanction ; as for instance, if the 
 fact can be reasonably inferred from the evident danger of the 
 declarant, or from the opinions of the medical or other attendants 
 stated to him, or from his conduct, such as settling his affairs, 
 taking leave of his relations and friends, giving directions re- 
 specting his funeral, receiving extreme unction, or the like. In 
 short, all the circumstances of the case may be resorted to, in 
 order to ascertain the state of the declarant's mind.^ The length 
 of time which elapsed between the declaration and the death of 
 the declarant, furnishes no rule for the admission or rejection 
 of the testimony ; though, in the absence of better evidence, it 
 may serve as one of the exponents of the deceased's belief, that 
 his recovery was or was not impossible. It is the impression of 
 impending death,* and not the rapid succession of death in point 
 of fact, which renders the testimony admissible. If, therefore, it 
 appaar that the deceased, at the time of the declaration, had any 
 expectation or hope of recovery, however slight it may have been, 
 and though death actually ensued within an hour afterwards, the 
 declaration will be inadmissible.^ On the other hand, a firm 
 
 1 Ante, § 23. ^ Qj.. Ev. § 158, in part. 
 
 3 K. V. Woodcock, 1 Lea. 503 ; E. v. John, 1 East, P. C. 357, 358 ; E. v. 
 Bonner, 6 0. & P. 386 ; E. v. Van Butohell, id. 631 ; E. v. Mosley, 1 Moo. 
 C, C. 97 ; E. V. Spilsbiuy, 7 C. & P. 187, per Coleridge, J. ; E. v. Minton, 
 M'Nally, Ev. 386 ; E. v. Scallan, Craw. & D., Abr. C. 340. See E. v. Nicolas, 
 6 Cox, 121 ; E. v. Qualter, id. 357; E. v. Perkins, 9 C. & P. 395; 2 Moo. 0. C. 
 135, S. C. 
 
 ■• E. V. Forester, 4 Post. & Pin. 857, per Byles, J., where the law seems to 
 have been laid down somewhat too strictly ; 10 Cox, 368, S. C. 
 
 « E. V. Welborn, 1 East, P. 0. 385 ; E. v. Christie, 2 Euss. C. & M. 754 ; 
 E. V. Jenkins, 1 Law Eep., C. C. 187 ; 38 L. J., M. C. 82 ; 11 Cox, 250, 
 S. C. ; E. V. Mackay, 11 Cox, 148 ; E. v. Hayward, 6 C. & P. 157, 160 ; E. v. 
 Crockett, 4 id. 544 ; E. v. Pagent, 7 id. 238 ; E. v. Megson, 9 id. 418. Where 
 the words were, " I have no hope of recovering, unless it be the will of God," 
 E. V. Murphy, Ir. Cir. E. 38, per Eichards, B. ; and, in another case, " I think 
 myself in great danger," E. v. Errington, 2 Lew. C. C. 148, they were respectively 
 held to be insufficient. See E. v. Howell, 1 C. & Kir. 689 ; 1 Den. 1, S. C. 
 
610 WHAT DYING DECLABATIONS ARE ADMISSIBLE. [PART II. 
 
 belief that death is impending, — ^by which is meant, not as was 
 once thought/ that it will almost immediately follow, but that it 
 will happen shortly in consequence of the injury sustained,^ — will 
 suffice to render the statement evidence, though the sufferer may 
 chance to linger on for some days, or even for two or three 
 weeks.^ 
 
 § 719. It is worthy of remark that in Scotland it is immaterial, § 649 
 except as regards the weight of the evidence, whether or not the 
 declaration be made under the impression of impending death ; 
 but where a party has received a mortal wound, an account of 
 the matter given by him at any time subsequent to the injury 
 will be admissible ia the event of his death, provided it were 
 made seriously and deliberately, and whilst the deceased appeared 
 to be aware of what he was doing, and in the possession of his 
 faculties.* 
 
 § 720.^ The declarations of the deceased are admissible only as § 650 
 to matters to which he would have been competent to testify, if 
 sworn in the cause. They must, therefore, in general narrate 
 facts only, and not mere opinions ; ^ and they must be confined 
 to what is relevant to the issue. But it is not necessary that the 
 examination of the deceased should have been conducted after 
 the manner of interrogating a witness in the cause, though any 
 
 1 Per HuHock, B., in E. v. Van Butchell, 3 C. & P. 629, 631. See, also, 
 E. V. Forester, 4 Post. & Fin. 859, per Byles, J. ; 10 Cox, 368, S. C. 
 
 2 E. V. Reaney, Dear. & BeU, 151 ; 26 L. J., M. C. 43 ; 7 Cox, 209, S. C. 
 
 ^ In E. V. Woodcock, 1 Lea. 500, the declarations were made two days 
 before death. ; in E. a Bonner, 6 C. & P. 386, three days ; in E. ■». WMtworth, 
 1 Fost. & Fin. 382, six days ; in E. v. Tinckler, 1 East, P. C. 354, ten days ; 
 in E. V. Eeaney, Dear. & Bell, 151 ; 26 L. J., M. C. 43 ; 7 Cox, 209, S. C. ; 
 in E. V. Mosley, 1 Moo. C. C. 97, eleven days; and in R. v. Bernadotti, 11 Cox, 
 316, coram Brett & Lush, Js., nearly three weeks ; yet they were all received. 
 In E. V. Mosley, and in E. v. Whitworth, it appeared that the surgeon did not 
 think the case hopeless, and told the patient so : but the patient thought other- 
 wise. See, also, E. v. Peel, 2 Fost. & Fin. 21 ; E. v. Howell, 1 C. & Kir. 689 ; 
 1 Den. 1, S. C. 
 
 ■• Alison, Pract. Cr. L. 510—512, 604—607 ; 2 Hume, Com. 391—393 ; 1 
 Dickson, Ev. 66, 67. The same law seems to have prevailed in England a 
 century ago. See E. v. Blandy, 18 How. St. Tr. 1137. 
 
 * Gr. Ev. § 159, in part. « E. v. Sellers, Carr. Cr. L. 233. 
 
CHAP. XIII.] WHAT DYINa DECLARATIONS ARE ADMISSIBLE. 611 
 
 departure from this mode may affect the credibility of the declara- 
 tions. Therefore, in general, it is no objection to their admissibility, 
 that they were made in answer to leading questions,^ or obtained 
 by earnest sohcitation.^ But where a statement, ready written, 
 was brought by the father of the deceased to a magistrate, who 
 accordingly went to the deceased and interrogated her as to its 
 accuracy, paragraph by paragraph, it was rejected in Ireland by 
 Mr. Justice Crampton, who observed that, " in the state of languor 
 in which dying persons generally are, their assent could be easily 
 got to statements which they never intended to make, if they were 
 but ingeniously interwoven by an artful person with statements 
 which were actually true;" and his lordship added, "the magis- 
 trate should not have trusted to the relation of a third person, but 
 should have taken down the deceased's declaration from her own 
 lips, or at least have had it taken down in his presence." ^ When 
 the declarations have been properly made, the right to offer them in 
 evidence is not restricted to the prosecutor, but they are equally 
 admissible in favour of the accused.* 
 
 § 721.' "Whatever the declaration may be, it must be complete in § 651 
 itself ; for, if the dying man appears to have intended to quahfy it 
 by other statements, which he is prevented by any cause from 
 making, it wiU not be received.^ Again, it has been held in one 
 case, — though with very questionable propriety so far as relates 
 to the rejection of oral evidence, — that if the statement were 
 committed to writing at the time it was made, this writing must 
 be produced, or its non-production accounted for ; and that 
 neither a copy, nor parol evidence of the declaration, can be 
 admitted in the first instance to supply the omission.'' But where 
 
 1 R. V. Smith, L. & Cave, 607 ; 10 Cox, 82 ; 34 L. J., M. C. 153, S. C. 
 
 2 E. V. Fagent, 7 C. & P. 238 ; K. v. Reason, 1 Str. 499 ; 16 How. St. Tr. 
 1, 24, et seq., S. C. ; Com. v. Vass, 3 Leigh, R. 786 ; R. v. Whitworth, 1 Fost. 
 & Fin. 382. 
 
 ■< R. V. Fitzgerald, Ir. Cir. R. 168, 169. 
 
 « R. V. Scaife, 1 M. & Rob. 551 ; 2 Lew. C, C. 150, S. C. The same law 
 prevails in Scotland, 2 Hume, Com. 393. 
 
 ' Qt. Ev. § 159 & 161, in part. e 3 Lgjgjj^ ^ ^^^^ 
 
 7 R. V. Gay, 7 C. & P. 230, per Coleridge, J. ; R. 0. Reason, 16 How. St. 
 Tr. 1, 24, et seq. ; 1 Str. 499, S. C. But see ante, § 415. 
 
 K R 2 
 
612 VALUE OF DYING DECLAEATIONS. [PAET II. 
 
 three declarations had been made at different times on the same 
 day, one of which was made under oath to a magistrate, and 
 reduced to writing, but the other two were not, it was held that 
 these last might be proved by parol, though the written statement 
 was not produced.^ If the deposition of the deceased has been 
 taken under any of the statutes on that subject, and is inadmissible 
 as such, for want of compliance with some of the legal formalities, 
 it seems that it may still be treated as a dying declaration, if made 
 in extremis.^ 
 
 § 722.^ Though these declarations, when dehberately made § 652 
 under a solemn sense of impending death, and concerning circum- 
 stances wherein the deceased is not likely to be mistaken, are 
 entitled to great weight, if precisely identified ; it should always 
 be recollected that the accused has not the power of cross-examina- 
 tion, — a power quite as essential to the eliciting of the truth as 
 the obligation of an oath can be ; — and that where a witness has 
 not a deep sense of accountability to his Maker, feelings of anger 
 or revenge, or, in the case of mutual conflict, the natural desire 
 of screening his own misconduct, may affect the accuracy of his 
 statements, and give a false colouring to the whole transaction. 
 Moreover, the particulars of the violence to which the deceased 
 has spoken are Ukely to have occurred under circumstances of 
 confusion and surprise, calculated to prevent their being accurately 
 observed, and leading both to mistakes as to the identity of 
 persons, and to the omission of facts essentially important to the 
 completeness and truth of the narrative.* 
 
 1 B. V. Eeason, 16 How. St. Tr. 1, 24, et seq. ; 1 Str. 499, S. C, Piatt, C. J., 
 dubit. See E. v. Scallan, Craw. & D., Abr. C. 340. 
 
 2 R. V. "Woodcock, 1 Lea. 502 ; R. v. Callaghan, McNally, Ev. 385. 
 
 3 Gr. Ev. § 162, in great pari. 
 
 * Jackson v. Kniffen, 2 Jokns. 35, 36, per Livingston, J. ; R. v. Ashton, 2 
 Lew. C. 0. 147, per Alderson, B. See, also, Mr. Evans's observations on the 
 great caution to be observed in the use of this kind of evidence, in 2 Poth. 
 Obi. 255 (293) ; 2 St. Ev. 367, and 1 Ph. Ev. 292. 
 
CHAP. XIV.J ADMISS. AND CONFESS. SUBSTITUTES FOE PROOF. 613 
 
 CHAPTER XIV. 
 
 ADMISSIONS. 
 
 § 723.^ Undee the head of exceptions to the rule rejecting § 653 
 hearsay evidence, it has been usual to treat of admissions and con- 
 fessions ; considering them as declarations against interest, and, 
 therefore, as probably true. But in regard to many admissions, 
 and especially those implied from conduct and assumed character, 
 it cannot be supposed that the party, at the time of the principal 
 declaration or act, believed himself to be speaking ■ or acting 
 against his own interest ; but often the contrary. Such evidence 
 seems, therefore, more properly admissible as a substitute for the 
 ordinary and legal proof ;^ either in virtue of the direct consent 
 and waiver of the party, as in the case of expUcit and solemn 
 admissions, or on grounds of public policy and convenience, as in 
 the case of those implied from assumed character, acquiescence, 
 or conduct. In this light confessions and admissions are regarded 
 by the Eoman law, as stated by Mascardus. Illud igitur in primis, 
 ut hinc potissimum exordiar, nan est ignorandum, quod etsi con- 
 fessioni inter proiationum species locum in prmsentia tribuerimus ; 
 cuncti tamenfere Dd. unanimes sunt arhitrati, ipsam potius esse ah 
 onere prohandi relevationem, quam proprie prohationem? Many 
 admissions, however, being made by third persons, are receivable 
 on mixed grounds ; partly, as belonging to the res gestae, partly, 
 
 J Gr. Ev. § 169, vertatim. 
 
 ^ As to when tlie admissions of a party with respect to written instruments 
 may be suhstituted for the ordinary proof of such instruments by their pro- 
 duction, see ante, §§ 410 — 414. 
 
 2 1 Maso. de Prob. qusest. 7, n. 1, 10, 11 ; Menooh. de Praes., lib. 1, queest. 
 61, n. 6 ; Alciat. de Prses., pars 2, n. 4. The Eoman law distinguishes, with 
 great clearness and precision, between confessions extra judicium, and confes- 
 sions in judicio ; treating the former as of very little and often of no weight, 
 unless corroborated, and the latter as generally, if not always, conclusive, even 
 to the overthrow of the preesumptio juris et de jure ; thus constituting an 
 
614 ADMISSIONS AND CONFESSIONS — DISTINCTION. [PAKT II. 
 
 as made against the interest of the person making them, and 
 partly, because of some privity with him against whom they are 
 offered in evidence. 
 
 § 724.^ In our law, the term admission is usually appHed to civil § 654 
 transactions, and to those matters of fact, in criminal cases, which 
 do not involve criminal intent;^ the term confession being gene- 
 rally restricted to acknowledgments of guilt. This distinction will 
 be better understood by an example. Thus, on the trial of Lord 
 Melville, who was charged, amongst other things, with criminal 
 misapplication of moneys received from the Exchequer, the ad- 
 mission of his agent and authorised receiver was held suf&cient 
 proof of the fact of such agent having received the public money ; 
 though had such admission been tendered in evidence to establish 
 the charge of any misapplication of the money by the noble 
 defendant, it would clearly have been rejected. The law was 
 thus stated by Lord Chancellor Erskine : — " This first step in the 
 proof" (namely, the receipt of the money by the agent,) "must 
 advance by evidence apphcable alike to civil, as to criminal cases ; 
 for a fact must be estabhshed by the same evidence, whether it 
 is to be followed by a criminal or civil consequence ; but it is a 
 totally different question, in the consideration of criminal as dis- 
 tinguished from civil justice, how the noble person now on trial 
 may be affected by the fact when so established. The receipt by 
 the paymaster would in itself involve him civilly, but could by no 
 possibility convict him of a crime." ^ 
 
 § 725.* As the rules of evidence, respectively apphcable to § 655 
 admissions and confessions, differ in some respects, the two sub- 
 
 exception to the conclusiveness of this class of presumptions. But to give 
 a confession this effect, certain things are essential, which Mascardus cites out 
 of Tancred : — 
 
 " Major, spontfe, sciens, contra se, ubi jus fit ; 
 Nee natura, favor, lis, jusve repugnet, et hostis." 
 Masc. uh. supr. n. 15 ; Vid. Dig. lih. 42, tit. 2, de confessis. Cod. Kb. 7, tit. 
 59 ; Van. Leenw. Comm. book v. ch. 21. 
 
 ' Gr. Ev. § 170, almost verbatim. 
 
 2 Ld. Melville's trial, 29 How. St. Tr. 746—764. 
 
 » 29 How. St. Tr. 764. ■> Gr. Ev. § 201, in great part. 
 
CHAP. XIV.J WHOLE ADMISSION MUST BE TAKEN TOGETHER. 615 
 
 jects will be discussed in separate chapters. And with regard 
 to ADMISSIONS, the first rule, which is important to be borne in 
 mind, is, that the ivhole statement containing the admission must he 
 taken together ; for though some part of it may be favourable to 
 the party, and the object is only to ascertain what he has conceded 
 against himself, and what may therefore be presumed to be true ; 
 yet, unless the whole is received, the true meaning of the part, 
 which is evidence against him, cannot be ascertained.^ But 
 though the whole of what he said at the same time, and relating 
 to the same subject, must be given in evidence, it does not follow 
 that all the parts of the statement should be regarded as equally 
 deserving of credit ; but the jury must consider, under the circum- 
 stances, how much of the entire statement they deem worthy of 
 belief, including as well the facts asserted by the party in his own 
 favour, as those making against him.^ 
 
 § 726. This rule, simple as it appears, is not without difficulty § 656 
 in its practical application ; and it will therefore be convenient 
 briefly to refer to a few of the leading decisions on the subject. 
 And, first, the rule applies equally to written, as to verbal, admis- 
 sions ; and, consequently, where a defendant has rendered a debtor 
 and creditor account to the plaintiff, which the latter produces in 
 proof of his demand, it will be equally admissible in evidence of 
 the defendant's set-off;' though the plaintiff will be at liberty, 
 while relying on the creditor side of the account, to impeach items 
 which appear on the debtor side.* Where, however, to an action 
 on an attorney's bill of costs, the defendant pleaded a set-off, and 
 put in an account furnished to him by the plaintiff, in which the 
 plaintiff credited himself for the amount of his bill, and debited 
 himself for the amount of goods sold, the court held that the 
 
 1 Thomson v. Austen, 2 D. & R. 361, per Abbott, C. J. ; Fletcher v. 
 Froggatt, 2 0. & P. 566, per id. ; Cobhett v. Grey, 4 Ex. R. 729. 
 
 2 Bennon v. Woodbridge, 2 Doug. 788, per Ld. Mansfield ; Smith v. Blandy, 
 Ry. & M. 259, per Best, C. J. ; Cray v. HaUs, cited id. 258, per Abbott, C. J. 
 See, also, WhitweU v. Wyer, 11 Mass. 6, 10 ; Garey v. Nicholson, 24 Wend. 
 350 ; Kelsey v. Bush, 2 Hill, S. Car. R. 440. 
 
 3 Randle v. Blackburn, 5 Taunt. 245. 
 
 « Rose V. Savory, 2 Bing. N. C. 145 ; 2 Scott, 199, S. C. See Moorhouse v. 
 Newton, 3 De Gex & Sm. 307. 
 
616 WHOLE ADMISSION MUST BE TAKEN TOGETHER. [PAET II. 
 
 defendant could not exclude from the consideration of the juiy 
 so much of the account as related to the bill of costs, on the 
 ground that no signed bill had been delivered ; because the non- 
 dehvery of a signed bill does not bar the debt, but merely, if 
 insisted on, prevents its recovery by action.^ 
 
 § 727. When, under the old system of pleading and practice, the § 657 
 admission was contained in an affidavit, a written examination,^ a 
 signed pleading,^ an answer,* or plea,^ in Chancery, or other docu- 
 ment complete in itself, the whole document was required to be read, 
 though the jury were not bound to give equal credit to every part of 
 it, and they frequently lent an academic faith to such portions as 
 made ia favour of the declarant.^ So stringent was this rule, that 
 where, on exceptions taken, a second answer to a bill in equity had 
 been, sent in, the defendant was allowed to insist upon having that 
 also read, in order to explain what he had sworn in his first answer.'' 
 It has also been held that a party, against whom an answer in 
 Chancery was produced, might have the whole bill read as part of 
 his adversary's case, on the ground that this was like the ordinary 
 case of a conversation, where the answers of a party could not be 
 given in evidence against him without also proving the questions 
 which drew forth the answers.^ The jury, however, might in such 
 case be warned, that the statements in the bill were not admissions 
 of the facts contained therein ; it being notorious that allegations, 
 
 1 Harriaon v. Turner, 10 Q. B. 482. 
 
 2 In Prince v. Samo, 7 A. & E. 630, Coleridge, J., aslied whether the 
 question had ever been decided as to depositions ? To which the counsel 
 replied that no express decision had been found. 
 
 '3 MariansM v. Cairns, 1 Macq. Sc. Cas. H. of L. 212. In the Supreme 
 Court of Judicature pleadings are not signed now either by the parties or by 
 counsel. Rules of Sup. Ct. Ord. xix. E. 4. See, also, 15 & 16 V., c. 76, § 85. 
 
 * See Cons. Ord. Ch. 1860, Ord. xv., rr. 5, 6. 
 
 ^ Pleas in Chancery, where the matter of the plea did not appear upon 
 record, must have been upon oath, and be signed by the parties pleading. 
 Cons. Ord. Ch. 1860, Ord. xiv., rr. 2, 3. 
 
 " Bermon v. Woodbridge, 2 Doug. 788, per Ld. Mansfield; Blount v. 
 Burrow, 4 Br. C. 0. 75, per Ld. Hardwicke ; Baildon v. Walton, 1 Ex. R. 617 ; 
 Percival •». Caney, 4 De Gex & Sm. 623, 624, per Knight-Bruce, V.-C. 
 
 ? R. V. Carr, 1 Sid. 418 ; B. N. P. 237 ; Ld. Bath v. Bathersea, 5 Mod. 10 ; 
 Lynch v. Clerke, 3 Salk. 154. 
 
 » Pennell v. Meyer, 2 M. & Rob. 98, per Tindal, C. J. ; 8 C. & P. 470, S. C. 
 
CHAP. XIV.] WHOLE ADMISSION MUST BE TAKEN TOGETHEE. 617 
 
 not consistent with fact, were frequently introduced into a bill, for 
 the sole purpose of eliciting truth from the opposite party .^ 
 
 § 728. In Goss v. Quinton,^ where the plaintiffs, who were § 658 
 assignees of a bankrupt, gave in evidence an examination of the 
 defendant before the commissioners, as proof that he had taken 
 certain property, the court held that they thereby made his 
 cross-examination evidence in the cause ; and as, in this cross- 
 examination, the defendant had stated that he had purchased the 
 property under a written agreement, a copy of which was entered 
 as part of his answer, this statement was considered as some 
 evidence on his behalf of the agreement and its contents ; and 
 that, too, though the absence of the document was not accounted 
 for, nor had notice been given to the plaintiffs to produce it. So, 
 where a magistrate was sued in trespass for assault and false im- 
 prisonment, the warrant of commitment put in evidence by the 
 plaintiff was held to be admissible on behalf of the defendant, as 
 proof of the information recited in it ; ^ and in an action against 
 a sheriff, where an undersheriff's letter was produced by the 
 plaintiff to affect the defendant, it was held to be some evidence 
 also of certain facts stated therein, which tended to excuse the 
 sheriff.* 
 
 § 729. The Case of Bessey v. Windham ^ purports to have been § 659 
 decided on the same principle. There, in order to fix a sheriff 
 in an action of trespass, the plaintiff put in the warrant under 
 which the seizure was made ; and as this recited the vnit of 
 fi. fa., the Court of Queen's Bench held that it was some evidence 
 of the writ, and, consequently, that it tended to protect the sheriff, 
 as showing that the seizure was made by the authority of the law. 
 The Court of Common Pleas, however, on a more recent occasion,'' 
 
 1 Pennell v. Meyer, 2 M. & Rob. 98, per Tindal, C. J. ; 8 C. & P. 470, S. C. 
 
 2 3 M. & G. 825. 
 
 3 3 Haylook v. Sparke, 22 L. J., M. C. 67 ; 1 E. & B. 471, S. C. This case 
 seems to overrule Stephens v. Clark, 2 M. & Eob. 435, per Cresswell, J. 
 
 ■• Haynes v. Hayton, 6 L. J., K. B. (0. S.), 231, recognised in Bessey v. 
 Windham, 6 Q. B. 172. 
 
 5 6 Q. B. 166. See Ogden v. Hesketh, 2 C. & Kir. 772. 
 
 " White V. Morris, 11 Com. B. 1015. See, also, Bowes v. Foster, 27 L. J., 
 Ex. 263, per Watson, B. 
 
618 ETJLE AS TO READING OLD ANSWERS IN CHANCERY. [PART II. 
 
 has questioned this decision, on the ground that the warrant was 
 offered in evidence, not as proof of the facts recited in it, but 
 merely to show that the sheriff had ordered the goods in question 
 to be seized. And it seems to be now tolerably clear from several 
 authorities, that where a sheriff or bailiff seeks to justify a seizure 
 as against any party but the execution-debtor, he must produce 
 both the writ of execution and the judgment, and he cannot be 
 relieved from offering such proof, by any recital in the warrant 
 which his opponent may put in evidence.-^ 
 
 § 730. The rule requiring the whole statement containing the § 660 
 admission to be taken together, has long prevailed to a considerable 
 extent in equity; and therefore, where a defendant had been 
 examined on two days before commissioners of the Court of 
 Bankruptcy, and the plaintiff read the examination taken on the 
 first day, he was compelled to read that also which was taken on 
 the second day ; ^ and where a plaintiff in equity read that part of 
 the defendant's account-book, which charged the latter, the de- 
 fendant was allowed to read the discharging part as evidence for 
 himself.^ With respect, however, to the old ansivers and examina- 
 tions in Chancery, — which have now been superseded by statements 
 of defence and answers to interrogatories, — the equity rule was far 
 less comprehensive than that which was recognised at common 
 law ; and although, if a party in equity admitted in his examina- 
 tion or answer, that he had received a sum, and then added in the 
 same sentence that he had immediately paid it away, — or if he 
 stated in a still more general form, that a person gave him lOOZ. 
 as a present, — the charge and the discharge would be so blended 
 together, that the one could not be admissible without the other;* 
 
 1 White V. Morris, 11 Com. B. 1015 ; Glave v. Wentworth, 6 Q. B. 173, n. 
 per Parke, B. ; Martin v. Podger, 5 Burr. 2631 ; Lake v. Billers, 1 Ld. Ray. 
 733. 2 Smith v. Biggs, 5 Sim. 391, per Shadwell, V.tC. 
 
 3 Carter v. Ld. Coleraine, cited in 2 Ball & B. 384 ; Blount v. Burrow, 4 Br. 
 C. C. 75, per Ld. Hardwicke. 
 
 " Eidgeway v. Darwin, 7 Ves. 404, per Ld. Eldon ; Thompson v. Lambe, id. 
 588, per id. ; Kobinson v. Scotney, 19 id. 584, per Sir W. Grant, M. R. ; 
 B. N. P. 237. See, also, Awdley v. Awdley, 2 Vern. 194 ; Hampton o. 
 Spencer, id. 288 ; Freeman v. Tatham, 5 Hare, 329. 
 
CHAP. XIV.] ErLE AS TO ANSWEES TO INTEKEOGATOEIES. 619 
 
 still, if he once admitted the receipt of money as an independent 
 fact, he could not refer to other parts of his examination or answer, 
 much less to affidavits sworn hy him, or to schedules attached to 
 his answer, for the purpose of showing that he had liquidated the 
 amount so admitted to have heen received, by separate and inde- 
 pendent payments.'^ So, if a plaintiff read a passage in the answer 
 as evidence of a particular fact, the defendant could not read other 
 parts, even though grammatically connected with such passage by 
 conjunctive particles, unless they were really explanatory of its 
 meaning;^ and if, in order to understand the sense of the passage 
 on which the plaintiff rehed, it was necessary to read on the part 
 of the defendant other portions of the answer, still these portions 
 would be evidence only so far as they were explanatory ; and any 
 new facts introduced therein, though so immediately connected with 
 the parts admitted as to be incapable of subtraction, would be con- 
 sidered as not read.^ This rule, — which was not recognised upon 
 a motion for a decree,* — seems to have been adopted in consequence 
 of the subtle contrivances of equity draftsmen, whose skill formerly 
 consisted in so grammatically blending important points of the 
 defendant's case with admissions that could not be withheld, as to 
 render it necessary that both should be read in conjunction, and 
 thus to prove their client's case by means of his own unsupported 
 statements.^ The oats and tares were reaped together. 
 
 § 731. In accordance with the practice in equity as explained in 
 the preceding section, the Eules of the Supreme Court have pro- 
 vided by Order XXXI., Rule 23, that " any party may, at the trial 
 of an action or issue, use in evidence any one or more of the 
 answers of the opposite party to interrogatories without putting in 
 the others ; Provided always, that in such case the judge may look 
 at the whole of the answers, and if he shall be of opinion that any 
 
 ' Cases cited in last note. 
 Davis "v. Spurling, 1 Euss. & Myl. 68, per Leach, M. R. 
 
 3 Bartlett v. Gillard, 3 Euss. 156, per Ld. Bldon. 
 
 " Under 15 & 16 V., o. 86, § 15 ; or 30 & 31 V., c. 44, § 68, Jr. There tlie 
 answer used to lie treated as an aflBdavit, and if the plaintiff read a part of it 
 against the defendant, the defendant might, without notice, read the whole 
 against the plaintiff. Stephens v. Heathcote, 1 Drew. & Sm. 138 ; 29 L. J., 
 Ch. 529, S. C. 5 Qi.esi. Ev. 13. 
 
620 DISTINCT ENTRIES DISTINCT MATT. IN CONYERSATION. [PART II. 
 
 other of them are so connected with those put in that the last men- 
 tioned answers ought not to be used without them, he may direct 
 them to be put in." 
 
 § 732. Though the whole of a document may, as a general rule, § 6Cl 
 be read by the one party, when the other has already put in evi- 
 dence a partial extract, this rule will not warrant the reading of 
 distinct entries in an account-book,^ or distinct paragraphs in a 
 newspaper,^ unconnected with the particular entry or paragraph 
 relied on by the opponent ; nor wiU it render admissible bundles 
 of proceedings in bankruptcy, entries in corporation-books, or a 
 series of copies of letters inserted in a letter-book, merely because 
 the adversary has read therefrom one or more papers, or entries, or 
 letters.^ If, indeed, the extracts put ia expressly refer to other 
 documents, these may be read also ; but the mere fact, that the 
 remaining portions of the papers or books may throw light on the 
 parts selected by the opposite party, will not be sufficient to warrant 
 their admission ; for such party is not bound to know whether they 
 wiU or not ; and moreover, the light may be a false one.* 
 
 § 733. The same rule prevails in the case of a conversation, in § 662 
 which several distinct matters have been discussed ; and although 
 it was at one time held, on high authority, that if a witness were 
 questioned as to a statement made by an adverse party, such party 
 might lay before the court the whole that was said by him in the 
 same conversation, even matter not properly connected with the 
 statement deposed to, provided only that it related to the subject- 
 matter of the suit : ^ yet, a sense of the extreme injustice that might 
 result from allowing such a course of proceeding, has induced the 
 courts, in later times, to adopt a stricter rule ; and if a part of a 
 conversation is now relied on as an admission, the adverse party 
 can give in evidence only so much of the same conversation as 
 
 ^ Catt V. Howard, 3 Stark. R. 6, per Abtott, C. J. ; Reeve v. Whitmore, 2 
 Drew. & Sm. 446. 
 ^ Darby v. Ouseley, 1 H. & N. 1. 
 
 2 Sturge V. Buolianaii, 10 A. & E. 598 ; 2 M. & Rob. 90, S. C. 
 ' Id. 600, 605, per Ld. Denman. 
 ^ Tlie Queen's case, 2 B. & B., 297, 298, per Abbott, C. J. 
 
OHAP. XIV.] LETTERS WHEN ADMISSIBLE- WITHOUT ANSWERS. 621 
 
 may explain or qualify the matter already before the court.^ The 
 case in which this decision was pronounced admirably illustrates 
 its propriety and justice. It was an action against the defendant 
 for having maliciously arrested the plaintiff for debt, the plaintiff 
 contending that the advance had been a gift and not a loan. A 
 witness for the plaintiff acknowledged on cross-examination, that 
 he had heard the plaintiff admit on oath, that he had repeatedly 
 been insolvent, and had been remanded by the court ; whereupon 
 he was asked in re-examination whether the plaintiff had not, on the 
 same occasion, expressly stated that the money was given, and not 
 lent. The court, in holding that the answer to this question was 
 not evidence, observed, that if it were, " the jury would be bound to 
 consider it, and might give full effect to it, and thus award large 
 damages for an injury, of which no particle of proof could be found 
 but the plaintiff's own assertion ; " and they added, that " the 
 reason of the thing would rather go to exclude the statements of a 
 party making declarations which cannot be "disinterested."^ 
 
 § 734. With regard to letters, it has been held that a party may § 663 
 put in such as were written by his opponent, without producing 
 those to which they were answers, or calling for their production ; 
 because, in such a case, the letters to which those put in were 
 answers are in the adversary's hands, and he may produce them, if 
 he thinks them necessary to explain the transaction.^ But if a 
 plaintiff puts in*a letter by the defendant, on the back of which is 
 something written by himself, the defendant is entitled to have 
 the whole read;* and where a defendant laid before the court 
 several letters between himself and the plaintiff, he was allowed to 
 read a reply of his own to the last letter of the plaintiff, it being 
 considered as a part of an entire correspondence.' 
 
 § 735. Questions not unfrequently arise as to the admissibility § 664 
 
 1 Prince V. Samo, 7 A. & E. 627, 634, 635. 
 
 2 Id. 
 
 * Ld. Barrymore v. Taylor, 1 Esp. 326, per Ld. Kenyon ; De Medina v. 
 Owen, 3 0. & Kir. 72, per Parke, B. 
 
 ^ Dagleish v. Dodd, 5 C. & P. 238, per Taunton, J. 
 ^ Roe V. Day, 7 C. & P. 705, per Park, J. 
 
622 DOCUMENTS KEFEBRED TO IN PEEVIOUS EXAMONS. [PAKT II. 
 
 of letters, account-books, &c., which are tendered as admissions, 
 in cases where their existence or contents have been discovered by 
 means of a compulsory examination or answer of the party either in 
 previous bankruptcy proceedings, or in some other legal inquiry ; 
 and it is often contended in such cases that the documents cannot 
 be read, without first producing the examination or answer. On one 
 or two occasions at Nisi Prius, this objection has prevailed ; ^ but 
 the judges in Banc have since decided that, — whatever the correct 
 doctrine may be with respect to documents referred to in an exami- 
 nation or answer, and actually annexed thereto, — no rule of law will, 
 in other cases, compel a party to treat the document on which he 
 relies as part of a previous examination or answer.^ " It was sur- 
 mised," said Lord Denman, while pronouncing the judgment of the 
 court in Sturge v. Buchanan, " that an unfair advantage had been 
 taken of the defendant in obtaining a knowledge of these letters 
 through a suit in Chancery, and then producing them without the 
 answers, which may have greatly qualified and altered their efiect. 
 But I cannot think that a judge at Nisi Prius has anything to do 
 with these considerations : he is to inquire only whether due notice 
 has been given : whether the documents have been proved to exist ; 
 whether copies are well proved."^ 
 
 § 736. Lord Tenterden has even expressed a doubt whether, in 
 the event of a document being annexed to an old answer in Chancery, 
 the answer need be read, if it have no connection with the cause in 
 which the document is produced.* If, however, the letter in ques- 
 tion be not written by the party against whom it is offered, though 
 contained in the schedule of his answer, and if it be merely used 
 against him, as raising an inference from possession that he knew 
 of its contents, and had acted upon it, common fairness seems to 
 dictate, — in conformity with a decision of Chief Justice Tindal,' — 
 that the letter should not be read without the answer ; for the answer 
 
 1 Yates V. Carnse-w, 3 C. & P. 99, per Ld. Tenterden ; Holland v. Eeeves, 
 7 C. & P. 36, per Alderson, B. 
 ^ Long V. Champion, 2 B. & Ad. 284 ; Sturge v. Buchanan, 10 A. & E. 605. 
 » 10 A. & E. 605. 
 
 " Long V. Champion, 2 B. & Ad. 286. 
 ° Hewitt V. Piggott, 5 C, & P. 75, 77. 
 
 665 
 
CHAP. XIV.] WHETHER ADMISSIONS OF HEARSAY ARE EVIDENCE. 623 
 
 of the party might contain such an explanation of the circumstances 
 under which the letter came into his possession, as also such a con- 
 tradiction of any passages in it which seemed to bear against his 
 rights, as utterly to neutraHse its effect. If a party, while making 
 a verbal admission, refers to a written paper, without which the 
 admission is incomplete, the paper should be produced, before the 
 statement can be Used as evidence against him.^ 
 
 § 737.^ Where the admission, whether oral or in writing, contains § 666 
 matters stated as mere hearsay, it may be questionable whether 
 such matters can be received in evidence. If tendered against the 
 party making the statement, they are clearly entitled to very little 
 weight, and unless coupled with a further admission, that he be- 
 lieves them to be true, they would seem, like hearsay declarations 
 against interest,^ to be inadmissible. But does the same rule hold, 
 when they are offered in favour of the party maldng the admission, 
 as tending to explain the statement which tells against him ? Mr. 
 Justice Ghambre thinks that it does, and contends that where one 
 party reads a part of the answer which his opponent has pleaded to a 
 bill filed for discovery, " he does not thereby admit as evidence all 
 the facts, which may happen to have been stated by way of hearsay 
 only."* Notwithstanding this authority, it may perhaps be urged 
 with success, that, since the answer is offered as the admission of 
 the party against whom it is read, the whole should be laid before 
 the jury, for the purpose of showing under v/hat impressions the 
 admission was made, though some part of it be stated only upon 
 hearsay and belief. 
 
 § 738. The rule requiring the whole admission to be taken s 667 
 together is so important, that the judge will do well to explain dis- 
 tinctly to the jury its bearing and extent, whenever any portion of 
 the statement is favourable to the party against whom it is read ; 
 but his neglecting to do so in a case where it is clear that the jury, 
 
 ' JaoolD V. Lindsay, 1 East, 460; Falconer v. Hanson, 1 Camp. 171 ; 1 Ph. 
 Ev. 341. 
 ■> Qr. Ev. § 202, in part. 
 
 3 Ld. Trimlestown v. Kemmis, 9 01. & Fin. 780, 784—786 ; ante, § 685. 
 •* Roe V. Ferrara, 2 B. & P. 548. 
 
624 VBBBAL ADMISSIONS NOT PUT IN ISSUE. [PAET II. 
 
 in fact, took tlie whole into their consideration, will not amount to 
 such a misdirection as to warrant a new trial.^ 
 
 § 739. A second rule respecting admissions is, that they are re- § 668 
 ceivable in evidence though they relate to the contents of a written 
 instrument, even when such contents are directly in issue ; ^ but 
 as this rule has already been discussed, it is needless to do more 
 in this place than thus shortly to refer to it.^ The Courts recognise 
 a third rule, in rejecting, or, at least, in placing no reliance upon, 
 any verbal admissions or declarations of the parties, which are not 
 put directly in issue by the pleadings, and which, consequently, have 
 not been open to explanation or disproof.* This doctrine rests upon 
 the ground, that the reception of such evidence would faciHtate the 
 production of false testimony ; ^ and although it does not strictly 
 extend to written admissions, yet the fact of their not being put in 
 issue by the pleadings will naturally detract from their weight, as 
 the party against whom they are offered in evidence will, iu such 
 case, have had no opportunity of explaining them.^ 
 
 § 740.'' With respect to the person, whose admissions may be § 669 
 received, the general doctrine is, that the declarations of a party to 
 the record, or of one identified in interest with him, are, as against 
 such party, receivable in evidence ; ^ but if they proceed from a 
 stranger, who is still living, they are almost uniformly rejected ; ' 
 
 1 Beckham v. Osborne, 6 M. & Gr. 771. 
 
 2 Slatterie v. Pooley, 6 M. & W. 664. 
 
 3 Ante, §§ 410 — 415. See, also, ante, § 413, as to tlie admissibility of a con-r 
 fessio juris. 
 
 " Aiistin V. Chambers, 6 CI. & Fin. 1, 38, 39 ; Attwood v. Small, id. 234 ; 
 Copland v. Toulmin, 7 id. 350, 373, 375. 
 
 * 6 CI. & Fin. 39, per Ld. Cottenham. 
 
 s MoMahon v. Burohell, 2 Phil. 127, 132, 133 ; 1 Coop. E. temp. Ld. 
 Cottenham, 475, S. C, and cases cited in n. ; Crosbie v. Thompson, 11 Jr. Eq. 
 R. 404, per Brady, Ch. ; Swift v. M'Tiernan, id. 602, per id. ; Malcolm v. Scott, 
 3 Hare, 39, 63 ; and see Margareson v. Saxton, 1 Y. & C, Ex. E. 529 ; and 
 Fitzgerald v. O'Flaherty, 2 Moll. 394, n. 
 
 " Gr. Ev. § 171, in part. 
 
 ^ Spargo V. Brown, 9 B. & C. 938, per Bayley, J. 
 
 ' Barough v. White, 4 B. & C. 328, per Littledale, J. As to when they are 
 admissible, see post, §§ 759 — 765. 
 
CHAP. XIV.] ADMISSIONS BY NOMINAL PLAINTIFF BEJECXED. 625 
 
 and, though he be dead, they cannot in general be admitted, 
 unless upon some of the special grounds already considered.^ In 
 holding that the admissions of parties to the record are receivable 
 in evidence, it matters not whether such admissions were made 
 before or after the party had arrived at full age ; and, there- 
 fore, if an action be brought against an adult for goods supplied 
 to him during his minority, admissions made, and letters written, 
 by him while under age, may be proved on behalf of the plaintiff.^ 
 
 § 741. Contrary to the practice which formerly prevailed at 
 common law, the courts now recognise a wide distinction between 
 nominal and 7'eal parties ; and, therefore, if the consignee of goods 
 uses the name of the consignor in proceeding against a shipper, or 
 if the assignee of a bond is driven to sue the obligor in the name of 
 the original obligee, or if the cestui que trust brings an action in 
 the name of his trustee, Courts of Nisi Prius,- recognising the prin- 
 ciples of equity, will reject the admission of the nominal plaintiff as 
 evidence for the defendant.^ Thus, although a receipt in full may 
 have been given by the nominal plaintiff to the defendant, the 
 parties really interested may show to the jury that the money has in 
 fact never been paid : * and if a release from a nominal plaintiff were 
 pleaded in bar, a prior assignment of the cause of action, with 
 notice thereof to the defendant, and an averment that the suit was 
 prosecuted by the assignee for his own benefit, would be a good 
 answer. Nor would the nominal plaintiff be permitted, in any 
 manner, injuriously to affect the rights of his assignee in an action.^ 
 
 § 742. Again, the declarations of a prochein amy or guardian will § 673 
 not be receivable in evidence, because these persons, though their 
 
 1 Ante, § 607. ^ O'Neill v. Eead, 7 Ir. Law E. 434. 
 
 3 See Payne v. Rogers, 1 Doug. 407 ; Legli v. Legh, 1 B. & P. 447 ; Innell 
 V. Newman, 4 B. & A. 419 ; Hiokey v. Burt, 7 Taunt. 48 ; Mounsteplien v. 
 Brooke, 1 Chit. R. 390 ; Manning v. Cox, 7 Moore, 617 ; Barker v. Richardson, 
 1 Y. & J. 362 ; Johnson v. Holdsworth, 4 Dowl. 63. 
 
 * See Wallace v. Kelsall, 7 M. & W. 273, 274, per Parke, B., explaining the 
 decisions in Skaife v. Jackson, 3 B. & C. 421, and Farrar v. Hutchinson, 9 
 A. & E. 641 ; 1 P. & D. 437, S. C. 
 
 5 See Welch v. Mandeville, 1 Wlieat. 233 ; Mandeville v. Welch, 5 Whent. 
 277, 283. 
 
626 ADMISSION BY A PARTNER OR CO-OBLISOE. [PART II. 
 
 names appear on the record, are not in fact parties to the action, 
 but are considered as officers of the court specially appointed by 
 the judges to look after the interests of the infant.^ A solemn 
 admission, however, made by a guardian or prochein amy in good 
 faith in a pending suit, for the purpose of that trial only, is 
 governed by other considerations, and will be equally admissible 
 with like admissions made by the solicitor in the cause.^ 
 
 § 743. When several persons are jointly interested in the subject- § 674 
 matter of the suit, the general rule is, that the admissions of any 
 one of these persons are receivable against himself and fellows, 
 whether they be all jointly suing or sued, or whether an action 
 be brought in favour of or against one or more of them separately ; 
 provided the admission relate to the subject-matter in dispute, 
 and be made by the declarant in his character of a person jointly 
 interested with the party against whom the evidence is tendered.^ 
 Thus, the representation or misrepresentation of any fact made 
 by one partner, with respect to some partnership transaction, will 
 bind the firm ; * and if partners bring an action as on a joint 
 contract, an admission by one of them that the subject-matter of 
 the contract was his separate property, will render the plaintiflfs 
 liable to a nonsuit,^ unless the case be such as to warrant an amend- 
 ment at the trial under Order XYI. E. 13, of the Judicature Rules, 
 1876.^ So, where it appeared on the record, that an agreement 
 sued on was made by the plaintiff on behalf of himself and the 
 other proprietors of a theatre, statements made by one of such pro- 
 prietors were admitted on the part of the defendant.''' And where 
 
 ' Eocleston v. Speke, alias Petty, 3 Mod. 258 ; Cowling v. Ely, 2 Stark. E. 
 366, per Abliott, J. ; Webb v. Smith, Ey. & M. 106, per Littledale, J. ; Morgan 
 V. Tborne, 7 M. & W. 408, per Parke, B. ; Sinclair v. Sinclair, 13 M. & W. 
 640, 646 ; Eccles v. Harrison, 6 Ec. & Mar. Cas. 204. These cases overrule 
 James v. Hatfield, 1 Str. 548. See Doe v. Roberts, 16 M. & "W. 778, cited 
 ante, § 605. 
 
 = See post, § 772. 
 
 ■* Whitcomb v. Wliiting, 2 Doug. 652 ; 1 Smith, L. C. 555, S. C. ; Wood ■ I). 
 Braddick, 1 Taunt. 104. 
 
 '' Rapp V. Latham, 2 B. & A. 795 ; Thwaites i>. Richardson, Pea. R. 16 ; 
 NichoUs V. Dowding, 1 Stark. R. 81, per Ld. EUenborough. 
 
 ° Lucas V. De la Cour, 1 M. & Sel. 249. " Cited ante, § 223. 
 
 ' Kemble v. Farren, 3 C. & P. 623, per Tmdal, C. J. 
 
CHAP. XIV.J LOED TENTERBEN's ACT, 627 
 
 the obligee of a bond filed a bill against two joint and several 
 obligors, alleging that the bond had been delivered up to one of 
 them by mistake, and praying that he, the obligee, might recover 
 the amount due on it, an admission by the party to whom the bond 
 was given up, that it had been delivered to her by mistake, was held 
 to be evidence against the co-obligor, though the joint answer of 
 the defendants had traversed the allegation as to mistake, and, 
 sirnply admitting the delivery of the bond, had stated that the party 
 to whom it was given up had destroyed it.^ 
 
 § 744. This doctrine, however, has been much restricted by the § 675 
 Legislature, and is now rendered wholly inappHcable to cases 
 where joint, or joint and several, debts have been barred by the 
 Statute of Limitations. The first blow aimed at the rule was 
 struck by Lord Tenterden's Act,^ which, — after enacting that " in 
 actions of debt, or upon the case grounded upon any simple con- 
 tract, no acknowledgment or promise by words only shall be 
 deemed sufficient evidence of a new or continuing contract, whereby 
 to take any case out of the operation of the enactments " contained 
 in the old Statute of Limitations,^ " or to deprive any party of the 
 benefit thereof, unless such aolmowledgment or promise shall be 
 made or contained by or in some writing, to be signed hy the party 
 chargeable thereby," — goes on to provide, "that where there shall 
 be two or more joint-contractors, or executors or administrators 
 of any contractor, no such joint-contractor, executor or adminis- 
 trator, shall lose the benefit of the said enactments or either of 
 them, so as to be chargeable in respect or by reason only of any 
 written acknowledgment or promise made and signed by any 
 other or others of them : * Provided always, that nothing herein 
 contained shall alter or take away or lessen the effect of any payment 
 of any principal or interest made by any person tvhatsoever : pro- 
 vided also, that in actions to be commenced against two or more 
 such joint-contractors, or executors, or administrators, if it shall 
 
 ^ Crosse v. Bedingfleld, 12 Sim. 35. 
 
 5^ 9 G. 4, c. 14, § 1. See ante, § 600. Similar restrictions prevail in 
 Ireland ; see 16 & 17 V., c. 113, § 24 ; and in Massachusetts ; see Eev. Stat. 
 c. 120, § 14. ' 21 J. 1, c. 16. 4 See ante, §§ 600, 601. 
 
 s s 2 
 
628 MERCANTILE LAW AMENDMENT ACT, 1856. [PAET II. 
 
 appear at the trial, or otherwise, that the plaintiff, though barred 
 by" the said Act of Jac. 1,^ "or this Act, as to one or more 
 of such joint-contractors, or executors, or administrators, shall 
 nevertheless be entitled against any other or others of the 
 defendants, by virtue of a new aclaiowledgment or promise or 
 otherwise, judgment may be given and costs allowed for the 
 plaintiff as to such defendant or defendants against whom he shall 
 recover, and for the other defendant or defendants against the 
 plaintiff."" 
 
 § 745. This enactment was open to two objections ; for, in the § C7S 
 first place, it required that the written acknowledgment should 
 be personally signed by the party chargeable ; and next, it left 
 untouched the law which allowed part payment by one of several 
 co-debtors to operate as a bar of the statute with respect to the 
 others. These defects caused much litigation, and not less in- 
 justice, till at length, after the lapse of a quarter of a century, a 
 remedy was apphed to them by the Mercantile Law Amendment 
 Act, 1856.^ § 13 enacts, with reference to the first defect, that 
 " an acknowledgment or promise made or contained by or in a 
 writing signed by an agent of the party chargeable thereby, duly 
 authorised to make such acknowledgment or promise, shall have 
 the same effect as if such writing had been signed by such party 
 himself."* The second defect was cured by § 14 of the same 
 Act, which provides, that " when there shall be two or more co- 
 contractors or co-debtors, whether bound or liable jointly only, or 
 jointly and severally, or executors or administrators of any con- 
 tractor, no such co-contractor or co-debtor, executor or adminis- 
 trator, shall lose the benefit of the " Statutes of Limitations,^ " so 
 as to be chargeable in respect or by reason only of payment^ of 
 
 1 21 J. 1, c. 16. 
 
 - § 4 of 9 G. 4, c. 14, enacts, " that the said Act of James, and that Act, 
 shall apply to the case of any debt on simple contract alleged by way of set-off 
 on the part of any defendant." 
 
 = 19 & 20 v., c. 97. 
 
 ■• This section applies to § 24 of 16 & 17 V., c. 113, Ir. as well as to § 1 of 
 Ld. Tenterden's Act. 
 
 ' 21 J. 1, c. 16, § 3 ; 3 & 4 W. 4, o. 42, § 3 ; 16 & 17 V., c. 113, s. 20, Ir. 
 
 " See Cockrill v. Sparkee, 32 L. J., Ex. 118 ; 1 H. & C. 699, S. C. 
 
CHAP. XIV.] KEAL PEOPEKTY IjIMITATION ACTS. 629 
 
 any principal, interest, or other money, by any other or others of 
 such co-contractors or co-debtors, executors or administrators." 
 
 § 746. The enactment last cited came under the consideration § 677 
 of a court of equity in the case of Thompson v. Waithman.'^ 
 There, two partners had given a promissory note in the name of 
 the firm. One of the partners afterwards died, leaving his co- 
 partner his executor ; and this man continued to pay interest on 
 the note for some years, when he became banki-upt. The holder 
 of the note then claimed payment out of the assets of the de- 
 ceased partner's estate ; but as more than six years had elapsed 
 since the date of the death, the Statute of Limitations was set 
 up as a bar to the claim. Vice-Chancellor Kindersley recognised 
 the validity of this defence, holding that the payments in the case 
 before him must be presumed to have been made by the bankrupt 
 in his character of surviving partner, and not as executor of his 
 deceased partner. In the case, too, of Jackson v. WooUey,^ the 
 Court of Queen's Bench has ruled, that, on the proper construc- 
 tion of the enactment in question, payment by one co-debtor, with 
 the knowledge and mere consent of the other, does not deprive that 
 other of the benefit of the Statute of Limitations. Since these 
 cases were determined, the Exchequer Chamber has held, — contrary 
 to what was first thought to be the law, — that § 14 of the Act of 
 19 & 20 v., c. 97, has no retrospective effect, and, consequently, 
 that it cannot apply to any payment made before the 29th of 
 July, 1856.^ This decision is the more remarkable as § 10 of the 
 same statute still seems to be retrospective.'' 
 
 § 747. The Real Property Limitation Acts of 1833 and 1874 § 678 
 respectively contain a provision respecting acknowledgments of the 
 
 1 26 L. J., Oil. 134 ; 3 Drew, 628, S. C. 
 
 " 27 L. J., Q. B. 181 ; 8 E. & B. 778, S. C. 
 
 8 Jackson v. Woolley, 27 L. J., Q. B. 448 ; 8 E. & B. 784, S. C, reversing the 
 judgment of the Court of Q. B., 27 L. J., Q. B. 181 ; 8 E. & B. 778, S. C. ; and 
 overruling on this point Thompson v. Waithman, 3 Drew. 628. See, also, 
 Williams v. Smith, 4 H. & N. 559 ; 28 L. J., Ex. 286, S. 0. in Ex. Ch. 
 
 ■• Pardo V. Bingham, 4 Law Eep. Ch. Ap. 735, per Ld. Hatherley, C. ; 39 
 L. J., Ch. 170, S. C. ; Cornill v. Hudson, 8 E. & B. 429. 
 
630 BANKRUPTCY OF ONE PARTNER RELEASE BY OTHER. [PART II. 
 
 mortgagor's title given by one of several mortgagees in possession,^ 
 which is the same in principle as the enactment just cited from 
 Lord Tenterden's Act. 
 
 § 748. Where a member of a partnership has been adjudged § 6784 
 bankrupt, and an action has been brought, under the authority of 
 
 I 3 & 4 W. 4, c. 27, § 28 ; 37 & 38 V., c. 57, § 7. TMs last Act does not 
 come into operation till the 1 Jan., 1879, see § 12. The enactment in question 
 is as follows : — " When a mortgagee shall have obtained the possession or receipt 
 of the profits of any land, or the receipt of any rent, comprised in his mort- 
 gage, the mortgagor, or any person claiming through him, shall not bring a 
 suit to redeem the mortgage but within twenty [or twelve in the later Act] 
 years next after the time at which the mortgagee obtained such possession or 
 receipt, unless in the meantime an acknowledgment of the title of the mort- 
 gagor, or of his right of redemption, shall have been given to the mortgagor, 
 or some person claiming his estate, or to the agent of such mortgagor or person, 
 in writing, signed by the mortgagee or the person claiming through him ; 
 and, in such case, no stich suit shall be brought but within twenty [or twelve 
 in the later Act] years next after the time at which such acknowledgment, 
 or the last of such acknowledgments, if more than one, was given ; and when 
 there shall be more than one mortgagor, or more than one person claiming 
 through the mortgagor or mortgagors, such acknowledgment, if given to any 
 of such mortgagors or persons, or his or their agent, shall be as effectual as if 
 the same had been given to aU such mortgagors or persons ; but where there 
 shall be more than one mortgagee, or more than one person olaimino- the estate 
 or interest of the mortgagee or mortgagees, such achiowledgment, signed by one 
 or more of such mortgagees or persons, shall be effectual only as against the party 
 or parties signing as aforesaid, and the person or persons claiming any part of 
 the mortgage money or land or rent by, from, or imder, him or them, or any 
 person or persons entitled to any estate or estates, interest or interests to take 
 effect after, or in defeasance of, his or their estate or estates, interest or 
 interests ; and shall not operate to give to the mortgagor or mort"agors a rioht 
 to redeem the mortgage, as against the person or persons entitled to any other 
 tmdivided or divided part of the money or land or rent ; and where such of 
 the mortgagees or persons aforesaid, as shall have given such acknowledgment, 
 shall be entitled to a divided part of the land or rent comprised in the 
 mortgage, or some estate or interest therein, and not to any ascertained part 
 of the mortgaged money, the mortgagor or mortgagors shall be entitled to 
 redeem the same divided part of the land or rent, on payment, with interest 
 of the part of the mortgage money which shaU bear the same proportion to 
 the whole of the mortgage money, as the value of such divided part of the 
 land or rent shall bear to the value of the whole of the land or rent comprised 
 in the mortgage." See Richardson v. Younge, 10 Law Rep Eq 275 per 
 Malins, V.-C. ; 39 L. J., Ch. 475, S. C. ; 40 L. J., Ch. 338, S. C, by Lds.'js. ; 
 and 6 Law Rep., Ch. Ap. 478. 
 
CHAP. XIV.] JOINT INTEREST COMMUNITY OF INTEREST. 631 
 
 the Court of Banki-uptcy, in the joint names of the trustee and of 
 the bankrupt's partner, such partner has no power to release the 
 debt ^or demand to which the action relates, but any attempted 
 release made by him, is, by the Banki-uptcj Act, rendered void.^ 
 
 § 749. If an admission has been made by one of several parties § 679 
 in fraud of the others jointly interested with him, and in collusion 
 with the opponent, then, on proof of this fact by the innocent 
 parties, such admission will, on principles of equity, be rejected by 
 the court.^ 
 
 § 750. In order to render the admission of one person receivable § 680 
 in evidence against another, it must relate to some matter in which 
 either both were jointly interested, or one was derivatively interested 
 through the other; and a mere community of interest will not be 
 sufficient. Thus, where two persons were in partnership, and an 
 action was brought against them as part-owners of a vessel, an ad- 
 mission made by the one, as to a matter which was not a subject of 
 co-partnership, but only of co-part-ownership, was held inadmissible 
 against the other.^ So, where two executors were sued on a covenant 
 by a testator for quiet enjoyment, and the question somewhat sin- 
 gularly raised by the facts and the pleadings was, whether the 
 defendants, who had themselves evicted the covenantee, had done 
 so under a lawful title, it was held that the plaintiff, in order to es- 
 tabUsh this fact, could not put in evidence a declaration by one of 
 the defendants, made after entry, to the effect that both of them 
 had a lawful title, through the testator, under a deed prior to that 
 on which the action was founded.* The court considered that this 
 admission was not made by the party in his character of executor, 
 nor did it relate to any matter touching the testator's estate ; but 
 it simply referred to something of which the two defendants had 
 
 1 32 & 33 v., c. Yl, § 105. 
 
 2 See Eawstorne ■«. Gandell, 15 M. & W. 304; Phillips ii. Clagett, 11 
 M. & W. 84 ; ante, § 741. 
 
 3 Jaggeis V. Bimiings, 1 Stark. R. 64, per Ld. Ellenborougli. See Brodie v 
 Howard, 17 Com. B. 109. 
 
 < Fox v. Waters, 12 A. & E. 43. See Stanton v. Percival, 5 H. of L. Cas 
 257. 
 
G32 ADMISSIOIfS BY ONE OP SEVERAL TilUSTEES, ETC. [PAET 11. 
 
 taken advantage in their individual capacities. It may even be 
 doubted whether an express promise made by one executor in his 
 representative character will bind the remaining executors in their 
 representative characters ; ^ and it has been held that the admission 
 of the receipt of money by one of several trustees, who were joint 
 defendants, but were not personally liable, could not be received to 
 charge the others.^ 
 
 § 751.^ So, where a joint contract is severed by the death of one § C81 
 of the contractors, nothing that is subsequently done or said by the 
 survivor can bind the personal representative of the deceased,* nor 
 can the acts or admissions of the executor bind the survivor.^ 
 Neither will the admissions of one tenant in common be receivable 
 against his co-tenant, though both are parties on the same side of 
 the suit ; * and in America, it has been decided, that no such privity 
 exists among the members of a board of public officers,^ or among 
 several indorsers of a promissory note,'' or between executors and 
 heirs of devisees,' as to make the admission of one binding on aU. 
 These cases almost dispense with the necessity of adding, that in 
 an action on the case for negligence, in an action of trespass, or in 
 any other action for tort, the admission of one defendant will not be 
 evidence against the others ■,'^° and it is abundantly clear that the 
 
 1 TuUook 11. Dunn, Ry. & M. 416, per Abbott, C. J. ; cited witli approbation 
 by Parke, B., in Scboley v. Walton, 12 M. & W. 514, Avho there questioned 
 the correctness of the contrary opinion, which the Q. B. appeared to have 
 entertained in Atkins v. Tredgold, 2 B. & C. 23 ; 3 D. & E.. 200, S. C. ■ and in 
 M'Cullooh V. Dawes, 9 D. & R. 40. 
 
 - Davies v. Ridge, 3 Esp. 101, 102, per Ld. Eldon. 
 
 3 Gr. Ev. § 176, in part. 
 
 " Atkins V. Tredgold, 2 B. & C. 23 ; 3 D. & R. 9,)0, s. 0. ; Fordham v. 
 Wallis, 10 Hare, 217 ; Slaymaker ii. Gundacker's Ex., 10 Serg. & R. 75. 
 
 ^ Slater v. Lawson, 1 B. & Ad. 396 ; Hathaway v. Haskell, 9 Pick. 24. 
 
 " Dan V. Brown, 4 Cowen, 483, 492. 
 
 '' Lockwood V. Smith, 5 Day, 309. 
 
 * Slaymaker v. Gundacker's Ex., 10 Serg. & R. 75. 
 
 « Osgood u. Manhattan Co., 3 Cowen, 611. See, also, Fordham v Wallis 10 
 Hare, 217. ' ' '" 
 
 1" Daniels v. Potter, M. & M. 501, per Tindal, C. ,J. ; Moroe v Royal I" 
 Acs. 362, per Ld. Erskine. See R. v. Hard wick, 11 East, 585, where' Ld 
 EUenborough lays down the rule somewhat too loosely. 
 
CHAP. XIV.] ADMISBIONS BY INHABITANTS OF TOWNSHIPS, ETC. 633 
 
 same rule prevails in criminal proceedings, as the law cannot recog- 
 nise any partnership or joint interest in crime.^ 
 
 § 752. One apparent exception to this last proposition^revails, § 682 
 where the inliahitants of townships, counties, or other territorial 
 divisions of the country, sue or are prosecuted eo nomine ; but in 
 these cases they are regarded in the light of a corporation, of which 
 each individual inhabitant forms a component part ; and therefore 
 it is entirely consistent with the rule stated above, to hold that the 
 declarations and admissions of any one of such persons should be 
 receivable in evidence against the collective body. It has, con- 
 sequently, been decided on an indictment against a township for 
 non-repair of a bridge, that the declarations of all rateable inhabi- 
 tants, whether actually rated or not, may be given in evidence for 
 the Crown, though the value of such evidence will of course vary 
 according to the knowledge and position of the declarant, and will 
 in many cases be exceedingly slight.^ So, also, in settlement cases, 
 declarations by rated parishioners will be evidence against the 
 parish.^ This rule of evidence is in no way affected by the statutes, 
 which now render parties to the record and other interested persons 
 competent witnesses.* 
 
 § 753.^ An apparent joint interest is obviously insufficient to § 683 
 render the admissions of one party receivable against his compa- 
 nions, irhere the reality of that interest is the point in. controversy. 
 A foundation must first be laid, by showing, prima facie, that a 
 joint interest exists. Where, therefore, an action was brought 
 against a party for money had and received, and the plaintiff, in 
 order to prove the receipt of the money by the defendant, tendered 
 in evidence certain statements, which had been made by a person 
 whom the defendant had taken into partnership subsequently to the 
 transaction in question, the court rejected the evidence of these 
 
 ' Grant v. Jackson, Pea. E. 204, per Ld. Kenyon. 
 
 2 R. V. Addertnry, East, 5 Q. B. 187, 189, n. a. ; E. v. Hardwick, 11 East, 
 586, per Ld. EUenborougli. 
 
 s R. V. Hardwick, 11 East, 579 ; E. v. Whitley Lower, 1 M. & Sel. 636 ; R. 
 D. Woburn, 10 East, 395. 
 
 ^ See 6 & 7 V., c. 85 ; 14 & 15 V., c. 99 ; 16 & 17 V., c. 83. 
 
 * Gr. Ev. § 177, in part. 
 
634 EEALITY OF JOINT INTEEEST MUST BE PEOVED. [PAKT II. 
 
 statements, on the ground that a joint liability could not be pre- 
 sumed from the mere fact of a subsequent partnership.^ Again, 
 the existence of a joint interest which is disputed, cannot be es- 
 tabhshed by the admission of one of the parties sought to be 
 charged, but this fact must be established by independent proof. 
 Therefore, in an action against three makers of a promissory note, 
 the joint execution of which was the point in issue, the admission 
 of his signature by one defendant was held insufficient to entitle 
 the plaintiff to recover against him and the others, though theirs 
 had been proved ; the point to be established against all being a 
 joint promise by all.^ And where it is sought to charge several as 
 partners, an admission of the fact of partnership by one is not 
 receivable in evidence against any of the others, to prove the part- 
 nership ; but it is only after the partnership is shown to exist by 
 independent proof satisfactory to the judge, that the admissions of 
 one of the parties are received in order to affect the others.' As, 
 however, the admissions are evidence against the party making 
 them, he will be bound thereby, either in an action brought against 
 him as surviving partner, or even, if he be sued on the joint promise 
 with his co-partners, provided they have been outlawed, or have let 
 judgment go by default.* 
 
 § 754. In general, the statement of defence made by one de- § C81 
 fendant cannot be read in evidence either for or against his co- 
 defendant ; neither can the answer of one defendant be read in 
 evidence ; ^ the reason being, that, as there is no issue between them, 
 no opportunity can have been afforded for cross-examination ; ^ and 
 
 1 Catt V. Howard, 3 Stark. R. 3, 5, per Abbott, C. J. 
 
 ^ Gray v. Palmers, 1 Esp. 135. 
 
 =• NichoUs V. Doweling, 1 Stark. E. 81 ; Gibbons v. Wilcox, 2 Stark. E. 43 ; 
 Grant v. Jackson, Pea. K. 204, per Ld. Kenyon ; Van Reimsdyk v. Kane, 1 
 Gall. 635 ; Harris v. Wilson, 7 Wend. 57 ; Burgess v. Lane, 3 Greenl. 165 ; 
 Button V. Woodman, 9 Gush. 255, 260. 
 
 '' Sangster v. Mazarredo, 1 Stark. R. 161, per Ld. EUenboroiigli ; Ellis v. 
 Watson, 2 Stark. R. 453, 478, per Abbott, C. J. 
 
 ' See Meyer v. Montriou, 9 Beav. 521 ; Stephens v. Heathoote, 2 Drew. & 
 Sm. 138 ; Parker v. Morrell, 2 Phill. 463, per Ld. Cottenham ; Hoare v. 
 Jobnstone, 2 Keen, 553 ; Saltmarsh v. Hardy, 42 L. J., Ch. 422, per Ld. 
 Selborne, C. 
 
 ^ Jones V. Turberville, 2 Ves. 11 ; Morse v. Royal, 12 Ves. 355, 361, 362. 
 
CHAP. XIV.] ADMISSIONS BY REPRESENTATIVES OP OTHERS. 635 
 
 moreover, if such a course were allowed, the plaintiff might make 
 one of his friends a defendant, and thus gain a most unfair ad- 
 vantage.^ But this rule does not apply to cases, where the other 
 defendant claims through the party whose defence is offered in 
 evidence ; nor to cases, where they have a joint interest, either as 
 partners or otherwise, in the transaction.^ Wherever the admis- 
 sion of one party would be good evidence against another party, 
 the defence of the former may, a fortiori, be read against the latter.^ 
 
 § 755. Where parties either sue or are sued in a representative § 685 
 character, it may be questionable how far statements made by them 
 before they were completely clothed with that character, will be admis- 
 sible against them, so as to affect the interest of the persons they 
 represent. In one case. Chief Justice Tindal is reported to have re- 
 ceived an admission of a person, who was suing as the assignee, now 
 called the trustee, of a bankrupt, though it was made before he be- 
 came such ; * but Lord Tenterden has ruled otherwise on precisely 
 the same point ;^ and in weighing the respective merits of these 
 decisions, the yeader will probably be of opinion that Lord Tenter- 
 den's was correct. It certainly appears to be a somewhat startling 
 proposition, that the assets of a testator, and the consequent rights 
 of legatees, may be affected by some inconsiderate statement, which 
 the executor, before the death of the testator, may have been in- 
 duced to make ; ^ and the more so, as even the sworn admission of 
 a married woman, answering to a bill in Chancery jointly with her 
 husband, has, — except so far as it related to her separate estate,''' — 
 
 1 Wych V. Meal, 3 P. Wms. 311. 
 
 "^ Petherick v. Turner, cited 1 Taunt. 104 ; Pritchard v. Draper, 1 Russ. & 
 Myl. 191 ; Hiliard v. Phaley, 8 Mod. 180 ; Field v. Holland, 6 Cranoh, 8, 24 ; 
 Clark's Ex. v. Van Eeimsdyk, 9 Cranch, 153, 156. See Parker v. Morrell, 2 
 Phill. 453 ; 2 C. & Kir. 599, S. C. ; cited ante, § 599. 
 
 =* Van Eeimsdyk v. Kane, 1 Gall. 630, 635. 
 
 ' Smith V. Morgan, 2 M. & Eob. 257. 
 
 "^ Fenwick v. Thornton, M. & M. 51. See, also, Metters v. Brown, 32 
 L. J., Ex. 140, per PoUock, C. B. ; 1 H. & C. 691, S. C. ; Plant v. M'Ewen, 
 4 Conn. 544. 
 
 ' See Legge ■;;. Edmonds, 25 L. J., Ch. 125, which confirms the law as stated 
 in the text. 
 
 ' Callow V. Howie, 1 De Gex & Sm. 531 ; Clive v. Carew, 1 Johns. & Hem, 
 199, 207. 
 
636 ADMISSIONS OF PERSONS INTERESTED IN SUIT. [PART II. 
 
 been rejected after his death, as against her, it being considered as 
 the answer of the husband alone.i Neither can the affidayit of a 
 guardian of an infant defendant be read against the infant in another 
 suit;^ though it may be used against the guardian himself, if he 
 afterwards be sued in his private capacity, for it is his own admission 
 upon oath.^ The same doctrine would seem to apply in the case of 
 a committee of a lunatic* 
 
 § TSe.'^ The admissions of persons who are not parties to the § ecc 
 record, but who are interested in the subject-matter of the suit, will 
 next be considered. The law, in regard to this source' of evidence, 
 looks chiefly to the real parties in interest, and gives to their ad- 
 missions the same weight as though they were parties to the record. 
 Thus, the admissions of the cestui que trust of a bond, so far as 
 his interest and that of the trustee are identical ; " those of the 
 persons interested in a policy effected in another's name for their 
 benefit ;^ those of the shipowners, in an action by the master for 
 freight;^ those of the indemnifying creditor, in an action against 
 the sheriff;' those of the deputy- sheriff tending to charge himself, 
 in an action against the high sheriff for the misconduct of the 
 deputy ;^° those of rated parishioners, in a settlement appeal, where 
 
 » Hodgson V. Merest, 9 Price, 563 ; Elston v. Wood, 2 Myl. & K. 678. 
 
 2 Eccleston v. Speke, alias Petty, 3 Mod. 258 ; 2 Ventr. 72 ; Garth. 79 ; 
 ComlD. 156, S. C. ; Hawkins v. Ltiscombe, 2 Swanst. 392, cases cited in n. o ; 
 Story, Eq. PL § 668 ; Gresl. Ev. 24, 323 ; Mills v. Dennis, 3 Johns. Ch. 367. 
 See ante, § 742. 
 
 » Beasley v. Magrath, 2 Sch. & Lef. 34. 
 
 < Stanton v. Percival, 5 H. of L. Cas. 257 ; 24 L. J., Ch. 369, per ])om. 
 Proo. S. C. 
 
 * Gr. Ev. § 180, in part. 
 
 ^ Hanson v. Parker, 1 Wils. 257. See, also, Harrison v. Vallance, 1 Bing. 
 45 ; 7 Moore, 304, S. C. ; May v. Taylor, 6 M. & Gr. 266, per Manle, J. 
 
 7 Bell V. Ansley, 16 East, 143, per Ld. Ellenborough. 
 
 ' Smith V. Lyon, 3 Camp. 465. 
 
 » Dowden v. Fowle, 4 Camp. 38 ; Proctor v. Lainson, 7 C. & P. 629, per 
 Ld. Abinger ; Dyke v. Aldridge, cited 7 T. R. 665 ; 11 East, 584 ; Young v. 
 Smith, 6 Esp. 121 ; Harwood v. Keys, 1 M. & Rob. 204. 
 
 '" Snowball v. Goodrieke, 4 B. & Ad. 541, questioning the language of Ld. 
 Kenyon, and Lawrence, J.,- in Drake v. Sykes, 7 T. R. 113, which seems to 
 identify the sheriff with the imder-sheriff to all intents. Yabsley v. Noble, 
 1 Ld. Bay. 190. The declarations of under-sheriffs, or of the sheriff's bailiffe, 
 
CHAP. XIV.] ADMISSIONS OF PERSONS INTEBESTED IN SUIT. 637 
 
 the churchwardens and overseers of the poor are the nominal parties 
 on the record ; ^ and, in short, those of any persons who are repre- 
 sented in the cause by other parties, — are receivable in evidence 
 against their respective representatives." On this ground, it has 
 been repeatedly held on the trial of election petitions, that the 
 declarations of voters against their own votes, whether made before 
 or after the votes were given,^ and even though invalidating their 
 votes on the ground of their having received bribes,* are admissible 
 in evidence ; for, in a scrutiny, each case is considered as a separate 
 cause, in which the supporter of the vote under discussion and the 
 voter are the parties on the one side, and the opposers of the vote 
 are the parties on the other. ^ 
 
 § 757. In all these cases, the declarations or admissions must, § 687 
 as will presently be seen," have been made while the party making 
 them had some interest in the matter ; and, moreover, they are 
 receivable in evidence only so far as his own interests, or the 
 interests of those who claim through him, are concerned. In 
 illustration of this last proposition, it may be observed, that if an 
 action be brought by trustees, who represent the interests of a 
 variety of cestuis que trust, the statements of the person bene- 
 ficially interested as tenant for life cannot be received as evidence 
 for the defendant, so as to prejudice the rights of the remainder- 
 men in fee. Indeed, before the declaration of a cestui que trust 
 
 accompanying official acts, are admissible as parts of the res gestae. See Jacobs 
 V. Humphrey, 2 C. & M. 413 ; 2 Tyr. 272, S. C. ; Scott v. Marshall, 2 C. & J. 
 238 ; North o. Miles, 1 Camp. 390, per Ld. EUenboroiigh ; and ante, § 583, 
 et seq. 
 
 > R. V. Hardwick, 11 East, 5Y9 ; E. v. Whitley Lower, 1 M. & Sel. 636. 
 
 ^ In Hart v. Horn, 2 Camp. 92, which was an action of replevin, the decla- 
 rations of the person, under whom the defendant made cognizance, were 
 rejected by Heath, J., as evidence for the plaintiff; hut it is presumed that 
 this case is not law. See Welstead v. Levy, 1 M. & Koh. 138. 
 
 3 Southampton case. Cock. & E. 113—117 ; Per. & K. 225, S. C. ; Ripon 
 case. Cock. & E. 301 ; Per. & K. 211, S. C. ; Petersfield case. Cock. & R. 34 ; 
 Per. & K. 49, S. C. ; New Windsor, Knapp & 0. 173, 174 ; Ennis, id. 435 ; 
 Droitwich, id. 64 ; Bedfordshire, 2 Luders, 411 ; and other cases cited 2 Rog. 
 on Elect. 139. 
 
 ■' Ipswich, Knapp & 0. 387 — 389 ; and cases cited 2 Eog. on Elect. 139. 
 
 ^ Eog. on Elect. 139. • •■' Post, § 794. 
 
638 TENANT FOR LIFE — TENANT IN TAIL. [PART H. 
 
 will be admitted at all against a trustee, the nature of tlie interest 
 of the declarant in the trust estate must be shown, so that it may 
 clearly appear that he alone is entitled to the benefit resulting from 
 the action.^ 
 
 § 758. In applying the rule that a man's admissions are only § 687a 
 evidence against himself and his privies, care must be taken to 
 distiaguish between the position of a tenant for life and that of a 
 tenant in tail. A tenant for life cannot — unless empowered by 
 some special statute^ — prejudice, by an admission, the iaterest of 
 a remainder-man or reversioner ; but a tenant in tail is regarded 
 as representing the inheritance, and, therefore, what he says or 
 does will often be binding on the persons entitled in remainder. 
 Thus, the law is well settled that a release of the equity of redemp- 
 tion by a tenant in tail in possession,^ or a decree of foreclosure 
 against him, will bind the remainder-man ; * and the acknowledg- 
 ment by a tenant in tail of a mortgage title, which, in the absence 
 of such admission, would have been barred by the equitable rule 
 respecting limitations, has been held to restore, as against the 
 remainder-man, the right of redemption.-' 
 
 § 759.^ In some cases, the admissions of third persons, strangers § 688 
 to the suit, are receivable. These exceptions to the general rule 
 arise when the issue is substantially upon the mutual rights of 
 such persons at a particular time; in which cases the practice 
 is to let in such evidence in general, as woijld be legally admissible 
 in an action between the parties themselves. Thus, the admissions 
 of a bankrupt, made before the act of bankruptcy, are receivable in 
 proof of the petitioning creditor's debt ;''' but if made after the act 
 of bankruptcy, though admissible against himself,* they cannot 
 
 1 Doe V. Wainwright, 8 A. & E. 691, 699, 700 ; 3 N. & M. 598, S. C. ; May 
 V. Taylor, 6 M. & Gr. 261. 
 
 2 See ante, § 692, n. 2, and post, § 1088, n., at 7th line from end of sect. 
 ^ Eeynoldson v. Perkins, Amb. 563. 
 
 " Pendleton v. Rooth, 1 Gift'. 45, per Stnart, V.-C. 
 
 5 Id., 1 Giff. 35 ; 1 De Gex,F. & J. 81, S. C. 
 
 ^ Gr. Ev. § 181, in part.. 
 
 f See Coole v. Brahani, 3 Ex. E. 185. 
 
 » Jarrett v. Leonard, 2 M. & Sel. 265. 
 
CHAP. XIV.] ADMISSIONS OF PEBSONS EXPRESSLY EEFBREED TO. 639 
 
 furnish evidence against the trustee, because of the intervening 
 rights of creditors, and the danger of fraud.^ 
 
 § 760.^ The admissions of a third person are also receivable in § 689 
 evidence against the party who has expressly referred another to 
 him for information in regard to an uncertain or disputed matter. 
 In such cases the party is bound by the declarations of the person 
 referred to, in the same manner, and to the same extent, as if 
 they were made by himself. Thus, upon a plea of plene adminis- 
 travit, where the executors wrote to the plaintiff, that if she 
 wished for further information in regard to the assets, she should 
 apply to a certain merchant in the city, they were held bound by 
 the replies of the merchant to her inquiries upon that subject.^ 
 So, in an action for goods sold and delivered, where the fact of 
 the delivery of them by the carman was disputed, and the defen- 
 dant said, "If he will say that he delivered the goods I will pay 
 for them ; " he was held bound by the afiirmative reply of the 
 
 § 761. In the application of this principle, it matters not 
 whether the question referred be one of law or of fact ; whether 
 the person to whom reference is made, have or have not any 
 peculiar knowledge on the subject ; or whether the statements of 
 the referee be adduced in evidence in an action on contract, or ia 
 an action for tort. Therefore, where two parties had agreed to 
 abide by the opinion of counsel upon the construction of a statute, 
 the party against whose interest the opinion operated was held 
 bound thereby in a subsequent action ; ^ and a disputed fact 
 
 1 Hoare v. Coryton, 4 Tatiiit. 560 ; 2 Rose, 158, S. C. ; Eobson v. Kemp, 4 
 Esp. 234 ; "Watts v. Thorpe, 1 Camp. 376 ; Smallcombe v. Bruges, McClel. 45 • 
 13 Price, 136, S. C. ; Taylor v. Kinloch, 1 Stark. E. 175 ; 2 Stark. E. 594^ 
 S. C. These oases virtually overrule Dowton v. Cross, 1 Esp. 168. See also 
 Bemasconi v. Farebrother, 3 B. & Ad. 372. 
 
 2 Gr. Ev. § 182, almost verbatim. 
 
 3 Williams v. Innes, 1 Camp. 364, per Lord Ellenborough. 
 
 < Daniel v. Pitt, Pea. Ad. Cas. 238 ; 1 Camp. 366, n. ; 6 Esp. 74 S. C. ■ 
 Brock V. Kent, 1 Camp. 366, n. ; Burt v. Palmer, 5 Esp. 145 ; Hood v. Eeeve' 
 3 C. & P. 532. " ' 
 
 5 Price V. HoUis, 1 M.'& Sel. 105. 
 
 ; 690 
 
640 ADMISSIONS BY PERSONS EXPBBSSL-S REFERRED TO. [PART II. 
 
 regarding a mine, having been referred by consent to a miner s 
 jury, their decision was received in evidence when one of the 
 disputants afterwards brought an action on the case against his 
 adversary.! ju these cases the decisions, which partook of the 
 nature of awards, were not stamped ; but the court held that 
 this was immaterial, as the instruments, not containing any 
 recital of the agreements, did not on their face purport to be 
 awards. 
 
 § 762. The doctrine under discussion may further be illustrated § 690 
 by the case of Downs v. Cooper.'^ There the defendant had de- 
 mised premises to the plaintiff, who entered and paid him rent. 
 During the term a brother of the defendant disputed his title, and 
 to avoid litigation between brothers, both, within the knowledge 
 of the plaintiff, agreed to abide by the opinion of a barrister, to 
 whom a case was submitted. The opinion being adverse to the 
 defendant, he thereupon gave up his title deeds, and permitted 
 his brother's attorney to tell the plaintiff, that in future he must 
 regard the brother as his landlord. The plaintiff paid his rent 
 accordingly ; but the defendant being subsequently dissatisfied with 
 the barrister's opinion, levied a distress, and an action of replevin 
 was the consequence. The above facts being stated in the plea in 
 bar, the court held, that, though in general a tenant is estopped 
 from denying his landlord's title, he was not so here, inasmuch as 
 the conduct of the defendant amounted to an admission that his 
 title had expired. 
 
 § 763. To render the declarations of a person referred to equiva- § (331 
 lent to a party's own admission, it is not necessary that the 
 reference should have boon made by express v/ords ; but it vdll 
 suffice if the party by his conduct has tacitly evinced an intention 
 to rely on the statements as correct. Therefore, where a party, on 
 being questioned by means of an interpreter, gave his answers 
 through the same medium, it has been held that the language of 
 the interpreter should be considered as that of the party ; and that. 
 
 ' Sybray v. White, 1 ]M. & W. 435 ; T\'r. & Gr. 74C, S. C. 
 = 2 Q. B. 256. 
 
CHAP. XIV.] ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO, 641 
 
 consequently, it might be proved by any person who heard it, 
 without calling the interpreter himself.^ So, if a party, on motion 
 before a judge, uses the affidavit of another person to prove a 
 certain fact deposed to therein, such affidavit is on any subsequent 
 trial evidence as against him of this fact, and that, too, though 
 the person who made the affidavit is present in court ; ^ and where 
 a petitioning creditor, knowing that his servant could prove a 
 particular act of bankruptcy, sent him expressly for that purpose 
 to be examined at the opening of the fiat, the depositions so made 
 were held to be evidence of the act of bankruptcy as against the 
 petitioning creditor, where that fact was put in issue in an action 
 brought agaiQst him by the assignees.^ 
 
 § 764. It has even been held, — apparently on the authority of § 692 
 these cases, — that, where the question in an action of trespass was 
 whether the plaintiff or defendant was the tenant of a field, the 
 deposition of a witness who, in a proceeding before justices for an 
 alleged trespass on the same close, had been called by the plaintiff 
 to prove his possession, but had in fact disproved it, might be put 
 in evidence for the defendant, though the mtness was aUve.* In 
 this case, however, as the witness was abroad at the time of the 
 trial, and as the litigants and the matter in dispute before the 
 justices were identical with those before the court, the depositions 
 would seem to have been admissible, rather as secondary evidence 
 of oral testimony ^ than as admissions by the accredited agent of 
 the plaintiff.^ In this last light they could scarcely have been 
 viewed, consistently with the opinion of the court, as expressed in 
 Gardner v. Moult,'' or Brickell v. Hulse ; ^ for in both these cases 
 the judges expressly admitted, that a party was not bound by what 
 his witness might say at Nisi Prius. 
 
 ' Fabrigas v. Mostyn, 20 How. St. Tr. 122, 123, per Gould, J. 
 
 2 Brickell v. Hulse, 7 A. & E. 454 ; Boileau v. EutHn, 2 Ex. E. 675, 679, 
 680 ; Pritchard v. Bagshawe, 11 Com. B. 459; Johnson v. Ward, 6 Esp. 47, 
 per Chambie, J. But see White v. DowUng, 8 Ir. Law R. 128. 
 
 3 Gardner v. Moult, 10 A. & E. 464 ; Boileau v. Rutlin, 2 Ex. R. 680. 
 
 * Cole V. Headly, 11 A. & E. 807. ' * Ante, § 464. 
 
 « See Boileau v. Rutlin, 2 Ex. R. 680, per Parke, B. 
 
 ' 10 A. & E. 468, per Ld. Denman & Patteson, J. 
 
 8 7 A. & E. 456—458, per Ld. Denman & Coleridge, J. See ante, § 469. 
 
 T T 
 
642 WHETHER ANSWEES OP KEPEEEE ABE CONCLUSIVE. [PAET 11. 
 
 § 765.^ Whether the answer of a person thus referred to is § 693 
 conclusive against the party does not seem to have been settled. 
 Where the plaintiff had offered to rest his claim upon the defen- 
 dant's affidavit, which was accordingly made, Lord Kenyon held 
 that he was conclusively hound, even though the affidavit were 
 false ; and he added, that, to make such a proposition and after- 
 wards to recede from it, was not only a dishonest act, but was one 
 which might be turned to very improper purposes, such as to 
 entrap the witness, or to find out how far the party's evidence 
 would go in support of his case.^ But in a later case, where the 
 question was whether a horse in the defendant's possession was 
 identical with one lost by the plaintiff, and the plaintiff had said 
 that if the defendant would take his oath that the horse was his, 
 he should keep him ; and he made oath accordingly ; Lord Ten- 
 terden observed, that considering the loose manner in which the 
 evidence had been given, he would not receive it as conclusive, 
 though it was a circumstance on which he should not fail to 
 remark to the jury.^ And certainly the opinion of Lord 
 Tenterden, indicated by what fell from him in this case, more 
 perfectly harmonizes with other parts of the law, especially as it is 
 opposed to any further extension of the doctrine of estoppels, which 
 precludes the investigation of truth. The purposes of justice and 
 policy are sufficiently answered, by throwing the burthen of proof 
 on the opposing party, as in the case of an award, and by holding 
 him bound, unless he can impeach the test referred to by clear 
 proof of fraud or mistake.* 
 
 § 766. It may here be expedient to examine briefly how far the § 694 
 adnnissions of a married woman can be received in evidence, either 
 against herself or her trustees, or for or against her husband. 
 If a tvife sue or be sued as a single looman, no valid reason can 
 be given why her admissions should not have the same legal effect 
 
 ' Gr. Ev. § 184, in great part. 
 
 2 Stevena v. Tliaoker, Pea. R. 187 ; Lloyd v. Willan, 1 Esp. 178 ; Bretton v. 
 Prettiman, T. Ray. 153 ; DelesUne v. Greenland, 1 Bay, 458, where the oath 
 of a third person was referred to. 
 
 ' Garnet r. Ball, 3 Stark. R. 160. 
 
 •• Whitehead v. Tattersall, 1 A. & E. 491. 
 
CHAP. XIV.] ADMISSIONS BY WIFE, WHEN RECBIVABIiE. 643 
 
 as those of any other person ; but in one case, where the defence 
 to an action on contract was that the plaintiff was under coverture 
 when the cause of action accrued. Lord EUenborough is reported 
 to have held, — on what grounds it does not appear, — ^that it was not 
 sufficient to show that she had acknowledged herself to be married, 
 without proof of an actual marriage, or at least of cohabitation.-' 
 If the trustees of a married woman sue or be sued, and the opposite 
 party be a stranger, her admissions, like those of an ordinary 
 cestui que trust,^ will be clearly admissible as against the trustees ; 
 and even if the husband be the hostile party, it seems that, on 
 principle,- the wife's admissions ought to be received on his behalf 
 to the same extent as her viva voce testimony ; ^ for the principle 
 of policy which admits the one should equally admit the other ; 
 and, therefore, it is probable that if an action were brought against 
 a husband by the trustees of his wife under a separation deed, 
 for arrears of maintenance, and the defence were to rest on the 
 fact of the wife's adultery, proof of her admission of criminal 
 misconduct would, — contrary to what was formerly the law,* — be 
 now received. 
 
 § 767. The admissions of a wife cannot be received in evidence § 695 
 for her husband in any suit between him and a stranger, unless, 
 perhaps, in the single event of their constituting part of the res 
 gestae. An instance of their admissibility on this ground is 
 afforded by the case of Walton v. Green,^ where, in an action of 
 assumpsit for goods supplied to a wife, who had been turned out 
 of doors by her husband the defendant, evidence was admitted, in 
 support of a defence which relied on her previous adultery, that 
 she had confessed her guilt to a third party ; as it appeared to have 
 been partly in consequence of this confession that she had been 
 put away by her husband. This case is here noticed, more out of 
 respect for the eminent judge who decided it, than because it appears 
 to rest upon any sound principle of law. The question' was not 
 whether the husband had reason to suspect his wife's fidelity, but 
 
 1 Wilson V. Mitchell, 3 Camp. 393. 2 See ante, § 756. 
 
 s See'16 & 17 V., c. 83. * Scholey v. Goodman, 1 Bing. 349 
 
 ' 1 C. & P. 621, per Abbott, C. J. 
 
 T T 2 
 
644 -wife's confessions of iotiLTEEY. [part II. 
 
 whether she had in fact committed adultery; and to allow her 
 admissions to establish that fact, and thus to screen her husband 
 from the claims of a stranger, would seem to be directly opposed to 
 the rule of law which rejects hearsay evidence. 
 
 § 768. It remains to be seen in what manner the Divorce § 696 
 Division of the High Court^ will deal with the wife's admissions 
 of adultery, on apphcations for judicial separation, or for restitu- 
 tion of conjugal rights, and on petitions for dissolution of mar- 
 riage. The unfettered reception of such evidence in the last class 
 of cases, would open a wide door to collusion : and on this ground, 
 the House of Lords, in proceedings upon bills of divorce, was 
 generally in the habit of rejecting letters from the wife to the 
 husband containing confessions of adultery,^ unless they were 
 offered in confirmation of circumstances which tended strongly 
 to prove the defendant's guilt.' It seems, however, that such 
 letters, if addressed to a stranger, or even to the husband's agent, 
 were receivable in evidence, after proof that they were not written 
 in consequence of any threat or promise, and that the writer was 
 then living apart from her husband ; * and it further seems, that 
 the wife's oral confession of guilt to a third party was admissible, 
 at least as confirmatory evidence.' Not only were direct confes- 
 sions rejected in the House of Lords, except under the circum- 
 stances above stated, but all letters written by the wife after her 
 separation, either to the husband or to the adulterer, were 
 generally held inadmissible, unless they were connected with 
 some particular fact,^ or could be referred to as part of the res 
 gestae,^ or were tendered in evidence after a prima facie case of 
 guilt had been already established. In one case, where the 
 husband held a situation at Malta, and his wife, in consequence 
 of bad health, had left the island, and had resided in England 
 
 1 The Act of 20 & 21 V., c. 85, and the Rules which regulate the practice of 
 the court, are alike silent on this subject. 
 
 " Ld. Cloncurry's case, Maoq. Pr. in H. of L. 606. 
 
 • Doyly's case, id. 654. See id. 536, 537. 
 
 " Ld. Clono^^Try's case, Macc^. Pr. in H. of L. 606. 
 
 * Ld. Ellenhorough's case, id. 655. But see Wiseman's case, id. 631. 
 
 « Dundas's case, id. 610. " Boydell's case, id. 651. 
 
CHAP. XIV.] wife's confessions OF ADULTERY. 645 
 
 for several years, during which time she had lived with a paramour 
 and had borne him four children, the House of Lords admitted a 
 series of letters from the wife to her husband, Vv^hich were tendered 
 as accounting for the circumstance of her not going out to rejoin 
 him, and as showing that she had practised upon him the grossest 
 deceit.^ 
 
 § 769. In the Ecclesiastical Courts a less strict rule obtained § 697 
 than was observed in the Common Law Courts, with respect to 
 the exclusion of a tvife's confession. By a canon ^ passed in 1603, 
 a mere confession, indeed, unaccompanied by other circumstances, 
 was rendered insufficient to support a prayer for a separation a 
 mensa et thoro ; and this rule has been held applicable, though 
 the confession was made under the apprehension of approaching 
 dissolution, and was free from all suspicion of a collusive purpose.^ 
 Still, the confession was always admissible in evidence, and, if 
 coupled with other facts of a suspicious nature, it generally proved 
 an important ingredient in the decision of the court. In one case, 
 letters from the wife to the supposed paramour, taken in conjunc- 
 tion with other suspicious circumstances, were, in the absence of 
 direct proof, considered to establish her guilt, though they con- 
 tained no express avowal of adultery, and though they never 
 reached the hands of the party to whom they were addressed, 
 as they were intercepted by the husband.* Whether the wife's 
 confession of adultery would be sufficient in itself to repel a suit 
 instituted by her for restitution of conjugal rights, was still an 
 undecided point when the Spiritual Courts were deprived by 
 the Legislature of their jurisdiction over such matters ; ^ but, in 
 
 ' Miller's case, id. 620—623. ^ No. 105. 
 
 ' Mortimer v. Mortimer, 2 Hagg. Cons. 316. 
 
 * Grant v. Grant, 2 Curt. 16 ; Caton v. Caton, 7 Ec. & Mar. Cas. 15—17 ; 
 Faussett v. Faussett, id. 88. In the Eccles. Courts, letters from the alleged 
 paramour, found in the wife's possession, were admissible ; hut if they did not 
 necessarily imply the commission of adultery, or were not supported by other 
 evidence of indecent familiarities, they were insufficient to support a sentence 
 of separation. Hamerton v. Hamerton, 2 Hagg. Ec. E. 8. As to the ad- 
 missibility of letters written by the adulterer to the wife, in proceedings before 
 the H. of L., see Ld. Glerawley's case, Macq. Pr. in H. of L. 629. 
 
 ' Mortimer v. Mortimer, 2 Hagg. Cons. 310 ; Burgess v. Burgess, id. 227. 
 
646 WHEN ADMISSIONS OF WIFE BIND HUSBAND. [PAKT II. 
 
 a suit of nullity of marriage, by reason of a former marriage, 
 the simple admission of such former marriage was held not to be 
 sufficient.'^ 
 
 § 770.^ The admissions of the wife will bind the husband only § 
 where she had authority to make them.^ This authority does not 
 result, by mere operation of law, from the relation of husband 
 and wife ; but is a question of fact, to be found by the jury, 
 as in other cases of agency; for, though this relation is peculiar 
 in its circumstances, from its close intimacy and its very nature, 
 yet there is nothing peculiar in the principles of law which apply 
 to it. As the wife is seldom expressly constituted the agent of 
 the husband, the cases on this subject are almost universally those 
 of implied authority, turning upon the degree in which the husband 
 permitted the wife to participate, either in the transaction of his 
 affairs in general, or in the particular matter in question.* Where, 
 under the old law,^ he sued for her wages, the mere fact that she 
 had earned them did not authorise her to bind him by her admis- 
 sions of payment ; ^ nor can her unauthorised declarations affect 
 him, even where he sues with her in her right ; for in these, and 
 similar cases, the right is his own, though acquired through her 
 instrumentality.'' 
 
 § 771. In regard to the inference of her agency from circum- § ( 
 stances, the question used to be left to the jury with great latitude, 
 both as to the fact of agency, and the time of the admissions. 
 Thus, it has been held competent for them to infer authority in her 
 
 1 Searle v. Price, 2 Hagg. Cons. 189. = Gr. Ev. § 185, in great part. 
 
 3 Emerson v. Blonden, 1 Esp. 142 ; Anderson v. Sanderson, 2 Staik. E. 204 ; 
 Carey v. Adkins, 4 Camp. 92 ; Meredith v. Footner, 11 M. & W. 202. 
 
 * See ante, § 192. 
 
 ' A married woman may now sue for wages in her own name, 33 & 34 V., 
 c. 93, §§ 1, 11. 
 
 « Hall V. Hill, 2 Str. 1094. 
 
 7 Alban V. Pritchett, 6 T. R. 680 ; KeUy v. Small, 2 Esp. 716 ; Denn v. 
 AVTiite, 7 T. E. 112, as to the wife's admission of a trespass. Neither are the 
 hushand's admissions as to feots respecting his wife's property, which happened 
 hefore the marriage, receivable after his death to affect the rights of the sur- 
 viving wife. Smith v. Scudder, 11 Serg. & E. 325. 
 
CHAP. XIV.] BINDIHa ADMISSIONS BY SOLICITORS. 647 
 
 to accept a notice and direction, in regard to a particular transaction 
 in her husband's trade, from the circumstance of her being seen 
 twice in his counting-house appearing to conduct his business 
 relating to that transaction, and once giying orders to the foreman.'' 
 And ia an action against the husband for goods furnished to the 
 wife while in the country, where he occasionally visited her, her 
 letter to the plaintiff, admitting the debt, and apologising for the 
 non-payment, though written several years after the transaction, 
 was held by Lord Ellenborough, previous to Lord Tenterden's Act,^ 
 sufficient to take the case out of the Statute of Limitations.^ Of 
 late years, however, a greater strictness has prevailed ; and in the 
 case of Meredith v. Footner,* where a wife, by her husband's autho- 
 rity, carried on the business of a shop, and attended to all the 
 receipts and payments; the court held that admissions made by her 
 to the landlord of the shop respecting the amount of rent were not 
 admissible to bind the husband. Had the admissions related to 
 the receipt of shop goods, they would have been evidence ; but the 
 fact that she was conducting a business for her husband, did not 
 constitute her his agent to make admissions of an antecedent con- 
 tract for the hire of the shop, or to make a new contract for the 
 future occupation of it. 
 
 § 772.' The admissions of solicitors bind their clients in all § 700 
 matters relating to the progress and trial of the action. In some 
 cases they are conclusive, and may even be given in evidence upon 
 a new trial ; though, previously to such trial, the party give notice 
 that he intends to withdraw them, or though the pleadings be 
 altered, provided the alterations do not relate to the admissions.^ 
 
 1 Plimmer v. SeUs, 3 N. & M. 422. 
 
 2 9 G. 4, c. 14, § 1, which rendered it necessary that an acknowledgment, to 
 take the case out of the statute, should he ia writing, " signed by the party 
 chargeable thereby." The acknowledgment may now be signed by an authorised 
 agent, 19 & 20 V., c. 97, § 13, cited ante, § 745. See post, § 1073. 
 
 ' Gregory v. Parker, 1 Camp. 394 ; Palethorp v. Furnish, 2 Esp. 511, n. ; 
 Clifford V. Burton, 1 Bing. 199 ; 8 Moore, 16, S. C. ; Petty v. Anderson, 3 Bing. 
 170 ; Cotes v. Davis, 1 Camp. 485. 
 
 Ml M. & W. 202. 
 
 5 Gr. Ev. § 186, in part. 
 
 " Elton V. Larkins, 1 M. & Eob. 196, per Tindal, C. J. ; 5 C. & P. 385, S. C. ; 
 
648 INCIDENTAL ADMISSIONS BY SOLICITORS. [PART H. 
 
 But to this end they must be distinct and formal, or such as are 
 termed solemn admissions, made for the express purpose of relaxing 
 the stringency of some rule of practice, or of dispensing with the 
 formal proof of some fact at the trial.^ 
 
 § 773. Another class of admissions comprehends those which § 701 
 solicitors make, not indeed with the express intent of dispensing 
 with proof of certain facts, hut as it were incidentally, while they 
 are referring to other matters connected with the action. These, 
 which are generally the result of carelessness, though not regarded 
 as conclusive admissions, are still considered, not unfrequently, as 
 raising an inference respecting the existence of facts, which the 
 adversary would otherwise have been called upon to prove ; and, 
 consequently, it is very important that solicitors should exercise 
 great caution in the language they employ while corresponding with 
 their opponents. Thus, where in an action against the acceptor of 
 a bill, his solicitor had served notice on the plaintiff to produce all 
 papers relating to a bill, the description of which corresponded with 
 that set forth in the declaration, — " which said bill," the notice 
 went on to state, " was accepted by the said defendant," — the court 
 held that such notice was prima facie evidence of the defendant's 
 acceptance;^ and in an action against the owners of a ship, their 
 joint ownership was inferred from an undertaking to appear for _ 
 them, signed by their solicitor, in which they were described as 
 owners of the sloop in question.^ Again, where the defendant's 
 solicitor, in an action of debt on a bond, had admitted the signature 
 of the attesting witness ; this was held, by implication, to amount 
 to an admission of the due execution of the instrument.* 
 
 § 774.' Admissions, however, contained in the mere conversation § 702 
 of a solicitor, cannot be received against a client, though they relate 
 
 Doe V. Bird, 7 C. & P. 6, per Ld. Denman ; Langley v. Ld. Oxford, 1 M. & W. 
 508. See Hargrave v. Hargrave, 12 Beav. 408, as to tlie case where the client 
 is an infant. 
 
 • See cases cited in last note. Also Young v. Wright, 1 Camp. 141 ; Doe v. 
 Rollings, 4 Com. B. 188. = Holt v. Squire, By. & M. 282, per Abbott, C. J. 
 
 ' Marshall v. Cliff, 4 Camp. 133, per Ld. EUenborough. 
 
 * Milward v. Temple, 1 Camp. 375, per Ld. EUenborough. 
 ' Gr. Ev. § 186, in part. 
 
OHAP. XIV.] LETTERS BY BOLICITOES WITHOUT PREJUDICE. 649 
 
 to the facts in controversy. The reason of this distinction is found 
 in the nature and extent of the authority given, the solicitor being 
 constituted for the management of the action in court, and for 
 nothing more.-^ So, if a letter sent by a solicitor to the opposite 
 party, be expressed to be written "without prejudice," it cannot be 
 received as an admission ; neither can the reply be admitted, though 
 not guarded ia a similar manner.^ If the admission were made 
 before suit, it will be equally binding, provided it be shown that the 
 solicitor was already retained to appear in the action.^ But in the 
 absence of any evidence of such retainer, some other proof must be 
 given of authority to make the admission.'' When the solicitor is 
 already constituted in the cause, admissions made by his managing 
 clerk, or his agent, are received as his own.^ 
 
 § 775. The practice of solicitors making solemn admissions § 703 
 before a trial, for the purpose of dispensing with the mere formal 
 proof of documents, has of late years greatly prevailed ; and the 
 law on this subject, — after several changes^, — is now embodied in the 
 Eules of the Supreme Court, Order XXXII. E. 2. The Eule pro- 
 vides in the first place, that " either party may call upon the other 
 
 1 Fetch V. Lyon, 9 Q. B. 147 ; Yoimg v. Wright, 1 Camp. 139, 141 ; Parkins 
 r. Hawkshaw, 2 Staik. R. 239 ; Doe v. Richards, 2 C. & Kir. 216. See Wilson 
 V. Turner, 1 Taunt. 398 ; Watson v. King, 3 Com. B. 608. 
 
 2 Paddock i). Forrester, 3 Scott, N. R. 734 ; 3 M. & Gr. 903, S. 0. ; Hoghton 
 V. Hoghton, 15 Beav. 321. See Jardine v. Sheridan, 2 C. & Kir. 24 ; Williams 
 V. Thomas, 2 Drew. & Sm. 29, 37 ; and post, § 795. 
 
 '' Marshall v. Cliff, 4 Camp. 133, per Ld. Ellenborough ; Gainsford v. 
 Grammar, 2 Camp. 9, per id. 
 
 ^ Wagstaff V. AVilson, 4 B. & Ad. 339 ; Burghart v. Angerstein, 6 C. & P. 
 695, per Alderson, B. ; Pope v. Andrews, 9 C. & P. 564, per Coleridge, J. 
 
 ' Taylor v. Willans, 2 B. & Ad. 845, 856 ; Standage v. Creighton, 5 C. & P. 
 400 ; Griffiths v. Williams, 1 T. R. 710 ; Truslove v. Burton, 9 Moore, 64 ; 
 Taylor v. Forster, 2 C. & P. 195. 
 
 " See Reg.-Gen. 2 W. 4, reported in 3 B. & Ad. 392, 393 ; Reg. -Gen., H. T., 
 4 W. 4, r. 20, reported in 4 B. & Ad. xvii., xviii. ; Reg.-Gen., H. T., 1853 ; 15 
 & 16 v., c. 76, §§ 117, 118 ; 16 & 17 V., c. 113, § 118, Ir. The practice is also 
 the same on the Revenue side of the Court of Exchequer ; see Reg.-Gen., 24 V., 
 r. 17 ; 6 H. & N. xiii. So, too, in the Court of Prohate ; see Rules of 1862, 
 for Ct. of Prob. in contentious business, r. 72, and Form, No. 20. The Rules of 
 1865, for the Ct. of Div. & Mat. Causes, are, for some unaccountable reason, 
 silent on the subject, 
 
650 
 
 RULES OF COURT AS TO NOTICES TO ADMIT. [PART II. 
 
 party to admit any document, saving all just exceptions ; and in 
 case of refusal or neglect to admit, after such notice, the costs of 
 proving any such document shall be paid by the party so neglecting 
 or refusing, whatever the result of the action may be, unless at the 
 hearing or trial the court certify that the refusal to admit was rea- 
 sonable ; and no costs of proving any document shall be allowed 
 unless such notice be given, except where the omission to give the 
 notice is in the opinion of the Taxing OfBicer a saving of expense." 
 Eule 3 of the same Order furnishes a form of notice that may be 
 given,^ while Eule 4 provides, with respect to the mode of proof, 
 
 ' Form 12, — a glance at wMcli will show in how slovenly a manner the New 
 Forms have heen drawn,: — is as follows : — ■ 
 
 In the High Ct. of Justice, 
 
 Division. A. B. v. C. D. 
 
 Take notice that the plaintiff [or, defendant] in this cause proposes to adduce 
 in evidence the several documents hereunder specified, and that the same may 
 be inspected hy the defendant [or, plaintiff], his solicitor or agent, at , 
 
 on , hetween the hours of ' ; and the defendant [or, 
 
 plaintiff] is hereby required, within 48 hours from the last-mentioned hour, 
 to admit that such of the said documents as are specified to be originals were 
 respectively written, signed, or executed as they purport respectively to have 
 been ; that such as are specified as copies are true copies ; and such documents 
 as are stated to have been served, sent, or delivered, were so served, sent, or 
 delivered respectively ; saming all just exceptions to the admissibility of all such 
 documents as evidence in this cause. Dated, &o. 
 
 G. H., solicitor [or, agent] for plaintiff [or, defendant]. 
 
 To E. F., solicitor [or, agent] for defendant [or, plaintiff]. 
 
 [Here describe the documents ; the manner of doing which may be as 
 follows :] 
 
 ORIGINALS. 
 
 Description of Documents. 
 
 Deed of covenant between A. B. and 0. D. first part, and 
 E. F. second part 
 
 Indenture of lease from A. B. to C. D. . . . . 
 
 Indenture of release between A. B. & C D. first part, &c. . 
 
 Letter, defendant to plaintiff 
 
 Policy of Insurance on goods by ship Isabella, on voyage 
 from Oporto to London 
 
 Memorandum of agreement between C. D., captain of said 
 ship, and E. F 
 
 BUI of exchange for 100^., at three months, drawn by 
 A. B. on, and accepted by, C. D., indorsed by E. F. and 
 G. H 
 
 Dates. 
 
 January 1, 1848. 
 February 1, 1848. 
 February 2, 1848. 
 March 1, 1848. 
 
 December 3, 1847. 
 
 January 1, 1848. 
 
 May 1, 1849. 
 
CHAP. xiv.J [decisions kespecting notices to admit. 
 
 651 
 
 that " an affidavit of the solicitor or his clerk, of the due signature 
 of any admissions made in pursuance of any notice to admit docu- 
 ments, and annexed to the affidayit, shall he sufficient evidence of 
 such admissions."^ 
 
 § 776. As the practice under the new. regulations has only heen § 704 
 in operation for a short time, it may still be convenient to refer to 
 a few cases which were decided on the construction of the former 
 rules. And, first, it has been held, that, though the notice must be 
 given a reasonable time before trial, yet, where it was given to the 
 defendant's agent in town only four days before the commission day 
 at Newcastle, — and he two days afterwards refused to admit the 
 documents without objecting to the sufficiency of the notice, or re- 
 quiring further time, — ^the plaintiff was entitled to the costs of 
 proof.^ Secondly, though the admission be made " with a saving 
 of all just exceptions," it so far recognises the general character 
 and accuracy of the documents, that no objection can subsequently 
 be taken to the authenticity of any part of them,^ or to their reception 
 in evidence on the ground of any interlineation, however material, 
 appearing upon them.* If this were not so, great inconveniences 
 
 COPIES. 
 
 Description of Documents, 
 
 Dates. 
 
 Original or Duplicate served, 
 sent, or deliTered, when, 
 liow, and by whom. 
 
 Eegister of 'baptism of A. B. ) 
 
 in the parish, of X. . . ) 
 
 Letter, plaintiff to defendant , 
 
 Notice to produce papers . . 
 
 Record of a judgment of the') 
 Court of Queen's Bench in > 
 an action, J. S. v. J. N. . ) 
 
 Letters patent of King Charles ) 
 II. in the Rolls' Chapel . . ) 
 
 January 1, 1808. 
 February 1, 1848. 
 
 March 1, 1848. 
 
 Trinity term, 10 
 Vict. 
 
 January 1, 1680. 
 
 ( Sent hy General Post, 
 t February 2, 1848. 
 ^Served March 2, 1848, 
 < on defendant's attor- 
 ( ney, by E. F. of , 
 
 • See 16 & 17 V., c. 113, § 119, Ir., which contaius a correspondiug enact- 
 ment. 
 ^ Tinn v. BiUingsley, 2 C. M. & R. 253; 3 Dowl. 810, S. C. 
 3 Hawk V. Freund, 1 Fost. & Fin. 294, per Byles, J. 
 •• Freeman v. Steggall, 14 Q. B. 202. 
 
652 DECISIONS EESPECTING NOTICES TO ADMIT. [PABT II. 
 
 would follow ; for as one main object of inducing a party to admit 
 under notice, is to dispense with the necessity of formal proof of the 
 instrument, it would obviously open a door to fraud, if the party 
 admitting were at liberty afterwards to object to an interlineation, 
 which the attesting witness might alone be enabled to explain.^ 
 So, where a deed was admitted as " the counterpart of a lease," an 
 objection taken at the trial, that it was in fact a lease, and as such 
 inadmissible for want of a sufacient stamp, ^ was overruled;' and 
 where a party admitted an instrument, which was specified in the 
 notice as bearing date the 10th August, he was not allowed to call 
 on his opponent for an explanation, though on the production of 
 the instrument it was evident that the date " August " had been 
 written on an erasure.* 
 
 § 777. Thirdly, a variance in the description of the document, if § 705 
 not of a nature to mislead, will not release the admitting party from 
 his obligation ; as, for instance, where the date of a promissory 
 note, which was otherwise correctly described in the notice to 
 admit, was misstated.' Fourthly, it seems that a party will not be 
 entitled to the costs of proving any document specified in the notice, 
 unless the witness called to establish this proof has, at least in his 
 examination in chief, been questioned to no other fact.^ Fifthly, 
 when a notice is given to admit documents, all that can fairly be 
 asked is, that the handwriting or due execution of the papers 
 specified should be admitted ; and, therefore, where a plaiatiff in- 
 cluded in his notice a demand to admit the authority by which the 
 documents had been written, and afterwards, on the defendant re- 
 fusing generally to make the admission as prayed, proved the 
 documents at the trial, it was held that he could not recover from 
 his opponent the costs of such proof.'' 
 
 ' Freeman v. Steggall, 14 Q. B, 203, per Coleridge, J. 
 = See now 33 & 34 V., c. 97, § 93, and Sch. Tit. " Duplicate," 
 » Doe V. Smith, 8 A. & E. 255 ; 3 N. & P. 335 ; 2 M. & Rob. 7, S. 0. 
 * Poole v. Palmer, 0. & Marsli. 69, per Rolfe, B. 
 
 ' Field V. Hemming, 7 0. & P. 619, per Ld. Abiuger ; 5 Dowl. 450, S. C. 
 nom. Field v. Flemming ; Bittleston v. Cooper, 14 M. & W. 399. 
 " Stracey v. Blake, 7 C. & P. 404, per Ld. Abinger. 
 ' Oxford, Wore, & Wolverh. Ry. Co. v. Scudamore, 1 H. & N. 666. 
 
CHAP. XIV.] DBCISIONa KESPBCTING NOTICES TO ADMIT. 653 
 
 § 778. Sixthly, it is needless to show that the admitting party § 705 
 has actually examined the documents mentioned in the notice, if he 
 has had an opportunity of doing so ; ^ and it seems to be unneces- 
 sary to identify the document produced at the trial with the one 
 inspected, provided that it corresponds with the description con- 
 tained in the notice.^ On two occasions, however, the necessity for 
 such evidence was urged by counsel, if not acknowledged by the 
 court ;^ and prudence may generally dictate the propriety of being 
 prepared with such proof, or, at least, of having the documents that 
 are to be produced signed or marked by the party making the ad- 
 mission. Seventhly, though the notice to admit contain no saving 
 of all just exceptions, the party admitting may still rely on any 
 valid objection to the admissibility of a document specified in it ; 
 and, therefore, where a plaintiff admitted that a paper was a copy of 
 a letter from himself to a defendant, who had suffered judgment by 
 default, this did not entitle the other defendant to put in the copy, 
 without first accounting for the non-production of the original, or 
 tracing it to the plaintiff's possession, and proving the notice to 
 produce. The judge's order in that case, which served the same 
 purpose as the present notice to admit, merely secured the accuracy 
 of the secondary evidence, but did not give it the effect of primary 
 proof.* 
 
 § 779. Lastly, these rules extend to every document which a § 706 
 party purposes to adduce in evidence, whether or not it be in his 
 custody or control,^ and whether or not it be put< in issue by the 
 pleadings.^ Neither will the case be varied though the opposite 
 party may have already, irrespective of the notice, refused in 
 positive terms to make any admission on the subject.'^ A party 
 may even, as it would seem, be served with notice to admit a foreign 
 
 1 Doe II. Smith, 8 A. & E. 264, 265, per Patteson and Coleridge, Js. 
 
 ^ Id. per Coleridge, J., who observed, that " to require such evidence would 
 be multiplying proofs, so as to defeat the rule of court." 
 
 » Clay V. Thackrah, 9 C. & P. 53, coram Ld. Denman ; Doe d. Tindal v. Eoe, 
 5 Dowl. 420, per Ld. Abinger. 
 
 * Sharpe v. Lamb, 11 A. & E. 805, 807 ; 3 P. & D. 454, S. C. See Goldie 
 V, Shuttleworth, 1 Camp. 70 ; Rochfort v. Sedley, 12 Ir. Law R., IST. S., App. iv. 
 
 » Rutter V. Chapman, 8 M. & W. 388. 
 
 « Spencer v. Barough, 9 M. & W. 425. ' I; I. 
 
654 CAUTION REQUISITE IN ADMITTING UNDER NOTICE. [PART II. 
 
 judgment, or other documents in a foreign court, proTided that his 
 opponent will give him time to inspect them abroad, and pay his 
 expenses incurred in so doing.^ Still, the rules do not apply where 
 ancient records of a public nature require, not proof, but translation 
 and explanation, or where affidavits which have been filed must be 
 produced by an officer ; and, consequently, a plaiutiff was held en- 
 titled to the costs, both of a witness who was called to explain and 
 translate the records, and of an officer of the Court of Chancery who 
 produced the affidavits, though the defendant had not been called 
 upon to admit any one of these documents.^ 
 
 § 780. In consentiag to admit for the purposes of a trial, care § 707 
 must be taken, lest, by the words used ia the notice to admit, the 
 party admitting should be entrapped into making a larger admis- 
 sion than he intended. The defendant fell into this error in the 
 case of Chaplin v. Levy.^ There the holder of a bill of exchange 
 sued the acceptor, and the defendant's solicitor wrote a letter ad- 
 mitting "that the acceptance to the bill on which the action is 
 brought is in the defendant's handwriting." A plea denying the 
 acceptance was afterwards pleaded, but the court held that, not- 
 withstanding this plea, the admission contained in the letter estab- 
 lished a prima facie case on behalf of the plaintiff without the 
 production of the bill itself at the trial. In the case of WUkes v. 
 Hopkins, a similar mistake was made.* That was an action against 
 three persons on a bill of exchange alleged to have been accepted 
 by them under the style of " The Newbridge Coal Company." The 
 acceptance was traversed by two of the defendants, while the third 
 one. Bishop, .who had actually signed the acceptance for the 
 company, suffered judgment by default. At the trial, the two de- 
 fendants who had pleaded, denied that Bishop had any authority to 
 accept for them ; but as the notice to admit stated the bill to have 
 been " accepted by Bishop for the defendants as the Newbridge 
 Coal Company," the court held, that an admission under this 
 notice, not only acknowledged the signature of Bishop, but precluded 
 
 1 Smitli V. Bird, 3 Dowl. 641. 
 
 2 Bastard v. Smitli, 10 A. & E. 213. ' 9 Ex. E. 531. 
 ■• 1 Com. B. 737. See, also. Hunt v. Wise, 1 Fost. & Fin. 445. 
 
CHAP. XIV.] COUNTY COURT RULE AS TO NOTICES TO ADMIT. 655 
 
 the defendants from denying that he had authority to bind them by 
 his acceptance. This last decision, if sustainable to its full extent, 
 is certainly one strictissimi juris ; and the courts, feeling such to 
 be the case, seem at present but little inclined to regard it as a 
 binding authority. Thus, in a more recent action of trespass, 
 where the plaintiff, in order to prove his possession of the close in 
 question, relied upon an admission made by the defendant under a 
 notice to admit in the following form : — " Letter of A. B., dated, 
 &c., respecting Pond Meld, then in possession of the saidplainti^;" 
 — the court held, that although this description of the close was 
 some evidence of the plaintiff's possession, it was certainly not con- 
 clusive proof of that fact.^ 
 
 § 781. The practice with respect to notices to admit documents, 
 has of late years been introduced into the Admiralty Division of the 
 High Court, whether for England or for Ireland. The Admiralty 
 Court Act, 1861,^ enacts for England, in § 19, that any party in a 
 cause in that court "may call on any other party in the cause by notice 
 in writing to admit any document, saving aU just exceptions, and 
 in case of refusal or neglect to admit, the costs of proving the docu- 
 ment shall be paid by the party so neglecting 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." The correspond- 
 ing Act for Ireland of 1867,^ contains a similar enactment. 
 
 § 782. In the County Courts the Rule which governs notices to 
 admit is as follows : — " Where a party desires to give in evidence 
 any document, he may, not less than five clear days before the trial, 
 give notice* to any other party in the action who is competent to 
 make admissions requiring him to inspect and admit such document; 
 and if such other party shall not within three days after receivino- 
 such notice make such admission, any expense of proving the same 
 at the trial shall be paid by him, whatever be the result of the 
 
 1 Pilgrim v. Soutliamp. & Dorchester Ey. C, 18 L. J., C. P. 330. 
 
 2 24 & 25 v., c. 10. 
 
 « 30 & 31 v., c. 114, § 67, Ir. 
 
 * C. C. E. 1876, Form 288. This Form is the same as Form 12 of the Eules 
 of the Supreme Court, cited ante, § 775, n. 1. 
 
656 ADMISSIONS BY COUNSEL, WHEN EVIDENCE. [PART II. 
 
 action, unless the court shall otherwise order; and no costs of 
 proving any document shall he allowed unless such notice shall be 
 given, except in cases where, in the opinion of the registrar, the 
 omission to give such notice has been a saving of expense.' 
 
 "1 
 
 § 783. Admissions made by counsel stand on much the same § '08 
 footing as those made by solicitors ; and therefore, where a special 
 case had been signed by the junior barrister on each side, but as a 
 material fact had been omitted, a new trial was granted, the case 
 was regarded by the court as containing the admissions of the 
 parties to the facts therein stated, and its production was held to 
 dispense with a second proof of those facts. ^ Again, where counsel 
 on both sides so conduct a cause, as to lead to an inference that a 
 certain fact is admitted between them, the court or the jury may 
 treat it as proved ; ^ and though the counsel do so with respect to 
 some fact which goes to support one issue only, that fact, it seems, 
 may be taken for granted for all purposes, and as to the whole case.* 
 So, where a plaintiff's counsel in his opening stated that his client 
 had paid a particular cheque, but called no evidence in support of 
 that fact, the defendant was allowed to give secondary evidence of 
 the contents of the cheque after notice to produce, without giving 
 further proof of the plaintiff's possession.' 
 
 § 784. In the case of CoUedge v. Horn,^ this doctrine was sought § 700 
 to be carried one step further ; and on a second trial the defendant 
 endeavoured to avoid part of his opponent's demand, by proving an 
 admission, which, on the former trial, had been made in the plain- 
 tiff's presence by the plaintiff's counsel in his opening address to 
 the jury. The judge rejected this evidence ; and although the 
 court above subsequently granted a new trial, they did so, not on 
 
 1 C. C. R. 1875, Orel. XIII., r. 9. 
 
 ' Van Wart v. Wolley, Ey. & M. 4, per Abbott, C. J. ; Edmunds v. Newman, 
 id. 5, n. per id. 
 ' Stracy v. Blake, 1 M. & W. 168 ; Doe d. Child v. Roe, 1 E. & B. 279. 
 
 * Bolton V. Sherman, 2 M. & W. 403, per Ld. Abinger. 
 
 * Diincombe v. Daniell, 8 C. & P. 222, 227, per Ld. Denman. But see 
 Maohell v. Ellis, 1 C. & Kir. 682. 
 
 ' 3 Bing. 119 ; 10 Moore, 431, S. C. See E. v. Coyle, 7 Cox, 74 ; Haller 
 V. Worman, 2 Post. & Fin. 165, per Keating, J. Sed qu. as to this last case. 
 
CHAP. Xrv.] ADMISS. BY PRINCIPAL, WHEN EVID. AGAINST STJEETY. 657 
 
 the ground that the ruling was wrong, but because the facts were 
 not sufficiently before them. Mr. Justice Burrough, indeed, felt no 
 difficulty in saying, that, if the plaintiff was in court, and heard 
 what his counsel said, and made no objection, he was bound by the 
 statement ; but the other learned judges, with more prudence, 
 forebore giving any opinion on a question, which they held to be 
 one of great nicety. It was urged, with much truth at least, in 
 support of the judge's ruling, that statements made by counsel in 
 the course of his address to the jury are often no other than embel- 
 lishments of the imagination ; and it was contended, that, as bills 
 in equity were not evidence against the parties who filed them, in- 
 asmuch as they were supposed to be the suggestions of counsel, so 
 the speeches of barristers should clearly be^^rejected. Should these 
 arguments be considered inconclusive, some learned members of the 
 profession, — if duly watched, — will often save their adversaries much 
 trouble in the way of proof.^ 
 
 § 785.^ The admissions of a ■principal can seldom be received as § VIO 
 evidence in an action against the surety upon his collateral under- 
 taking. In these cases the main inquiry is, whether the declara- 
 tions of the principal were made during the transaction of the 
 business for which the surety was bound, so as to become part of 
 the res gestae. If so, they are admissible ; otherwise, they are not. 
 The surety is considered as bound only for the actual conduct of the 
 party, and not for whatever he might say he had done ; and there- 
 fore he is entitled to proof of the principal's conduct by original 
 evidence, where it can be had ; excluding all his declarations made 
 subsequent to the act to which they relate, and out of the course of 
 
 ' As to the autliority of counsel to bind a client by a compromise or agree- 
 ment made at the trial, see Swinfen v. Swinfen, 25 L. J., C. P. 303 ; 26 id. 97 ; 
 1 Com. B., N. S. 364, S. C. ; 27 L. J., Ch. 35, coram Eomilly, M. R., S. C. ; 
 24 Beav. 549, S. C. ; judg. of M. R. aflfd. by Lds. Js., 2 De Gex & J. 38 ; 27 
 L. J., Cb. 491, S. C. ; Chambers v. Mason, 5 Com. B., N. S. 59 ; Swinfen v. Ld. 
 Chebnsford, 5 H. & N. 890 ; Pristwick v. Poley, 34 L. J., C. P. 189 ; S. C. 
 nom. Prestwich v. Poley, 18 Com. B., N. S. 806 ; Strauss v. Francis, 35 L. J., . 
 Q. B. 133 ; 1 Law Rep., Q. B. 379 ; and 7 B. & S. 365, S. C. ; Brady v. Ciuran, 
 I. R., 2 C. L. 314 ; Holt v. Jesse, Law Rep., 3 Ch. D. 177 ; 46 L. J., Ch. 
 254, S. C. 
 
 2 Gr. Ev. § 187, in great part. 
 
 V tr 
 
658 ADMISS. BY PEINCrPAL, WHEN EVID. AGAINST SUEETY. [PART II. 
 
 his official duty. Thus, where one guaranteed the payment for 
 such goods as the plaintiffs should send to another in the way of 
 trade ; the admissions of the principal debtor, that he had received 
 goods, made after the time of their supposed delivery, were held 
 inadmissible in evidence against the surety.^ So, if a man become 
 surety in a bond, conditioned for the faithful conduct of a clerk or 
 collector, confessions of embezzlement, made by the principal after 
 his dismissal, cannot be given in evidence if the surety be sued on 
 the bond ; ^ though entries made by the principal in the course of 
 his duty, or whereby he has charged himself with the receipt of 
 money, will, at least after his death, be received as proof against 
 the surety.^ 
 
 § 786.* The declarations of a principal may possibly be evidence § 711 
 against the surety, in a case where the latter, being sued for the 
 default of the former, gives him notice of the pendency of the suit 
 and requests him to defend it ; for here, if judgment goes against 
 the surety, the record is conclusive evidence for him, in a subse- 
 quent action against the principal for indemnity, inasmuch as the 
 principal has thus virtually become a party to the suit. This view 
 of the law is at least in accordance with the ruHng of Lord Kenyon, 
 which cannot be supported on any other ground. A sheriff had 
 brought an action against the surety of his baiHff, who had kept 
 back some money which he had received ; and his lordship held, 
 that a written admission by the baihff of the receipt of this money 
 was evidence against the surety, as the ba,iliff was substantially the 
 defendant in the action.^ 
 
 § 787.^ The admissions of one person are also evidence against § 712 
 
 ' Evans v. Beattie, 5 Esp. 26, per Ld. Ellenborough ; Bacon ■;;, Chesney, 
 
 1 Stark. E. 192, per id. ; Longenecker v. Hyde, 6 Binn. 1. 
 
 ^ Smith V. Whittingham, 6 C. & P. 78. See, also. Cutler v. Newlin, Mann. 
 Dig. N. P. 137, per Hoboyd, J. ; Dunn v. Slee, Holt, N. P. E. 401 ; Dawes 
 V. Shed, 15 Mass. 6, 9 ; Foxoroft v. Nevens, 4 Qreenl. 72 ; Hayes v. Seaver, 
 7 Greenl. 237 ; Beall v. Back, 3 Har. & McHen. 242. 
 
 3 Whitnash v. George, 8 B. & C. 556 ; Middleton v. Melton, 10 B. & C. 317 ; 
 Closs V. Watlington, 3 B. & B. 132 ; 6 Moore, 355, S. C. ; M'Gahey v. Alston^ 
 
 2 M. & W. 213, 214. 4 Gr. Ev. § 188, in part. 
 
 * Perchard 0. Tindall, 1 Esp. 394. « Qj,_ Ey_ ^ ^gg^ j^^ ^^^^ p^^ 
 
CHAP. XIV.] ADMISSIONS BY PRITIBS. 659 
 
 another, in respect of privity between them. The term privity 
 denotes mutual or successive relationship to the same rights of pro- 
 perty ; and privies are distributed in several classes, according to 
 the manner of this relationship. Thus, there are privies in estate, 
 — as, donor and donee, lessor and lessee, joint-tenants, and succes- 
 sive bishops, rectors, and vicars : privies in blood, — as, heir and 
 ancestor, and coparceners ; privies in representation, — as, executors 
 and testators, administrators and intestates ; privies in law, — where 
 the law, without privity of blood or estate, takes the land from one 
 and bestows it upon another, as by escheat. All these are more 
 generally classed into privies in estate, privies in blood, and privies 
 in law.^ The ground, upon which admissions bind those in privity 
 with the party making them, is, that they are identified in interest ; 
 and of course the rule extends no further than this identity. The 
 cases of coparceners, and of joint-tenants, are assimilated to those 
 of joint promissors, partners, and others having a joint interest, 
 which have already been considered.^ In other cases, where the 
 party by his admissions has qualified his own right, and another 
 claims to succeed him, as heir, executor, or the like, the latter 
 succeeds only to the right as thus qualified at the time when his 
 title commenced ; and the admissions are receivable in evidence 
 against the representative, in the same manner as they would have 
 been against the party represented.^ Thus, the declarations of the 
 ancestor, that he held the land as the tenant of a third person, are 
 admissible to show the seisin of that person, in an action brought 
 by him against the heir for the land.* And the declarations of an 
 intestate are admissible against his administrator, or any other 
 claiming in his right ; ' but it has been held, that the declarations 
 of an executor, though made while he was acting in that capacity, 
 are not admissible against a special administrator, who has been 
 
 1 Co. Lit. 271 a ; Carver v. Jackson, 4 Pet. 1, 83 ; Wood, Inst. LL. Eng. 
 236 ; Tomlin, L. Diet. Verb. Privies. See Walker's case, 3 Co. 23 ; Beverley's 
 case, 4 Co. 123, 124 ; ante, § 90. 
 
 2 Ante, § 743. 
 
 3 Coole V. Braham, 3 Ex. R. 185, per Parke, B. 
 
 ' Doe V. Pettett, 5 B. & A. 223 ; 2 Potk., ObL, 254 ; ante, §§ 684—687, and 
 cases there cited. 
 5 Smitk V. Smith, 3 Bing. N! C. 29 ; 7 C. & P. 401, S. C. 
 
 F u 2 
 
660 ADMISSIONS BY PBIVIES. [PART II. 
 
 appointed in consequence of the executor's protracted absence from 
 England.! 
 
 § 788.^ Again, any declaration by a landlord, in a prior lease, § TlS 
 which is relative to the matter in issue, and concerns the estate, 
 has been received in evidence against a lessee, who claims by a sub 
 sequent title ;^ and admissions, — whether evidenced by letterS; 
 receipts, cases drawn for the opinion of counsel, answers in Chan 
 eery, or verbal statements, — if made by former bishops, rectors, or 
 vicars, with regard to their several rights, will be evidence against 
 their respective successors, in all cases where the same rights are 
 in question.* So, where a vicar had filed a bill against his rector 
 and certain landowners of the parish for tithe hay, and had subse- 
 quently abandoned the suit, the defendants in their answer having 
 declared that the tithes in question belonged to the rector, it was 
 held, in an action for similar tithes brought by a succeeding rector 
 against owners, who had purchased their lands from the parties to 
 the former suit, that the answer was strong evidence in favour of 
 the plaintiff.^ So, ancient maps, books of survey, and the like, 
 though mere private documents, are frequently admissible on this 
 ground, where a privity in estate exists between the former pro- 
 prietor under whose direction they were made, and the present 
 claimant against whom they are offered.* The declarations, also, 
 of former owners or occupiers, made while in possession, have been 
 admitted as evidence of the nature and extent of their title, against 
 those claiming in privity of estate.'' 
 
 1 Rash V. Peacock, 2 M. & Eob. 162, per Ld. Denman. There the adminis- 
 trator was appointed under the Act of 38 G. 3, c. 87. As to how far payments 
 made by an executor de son tort to a creditor of a deceased person are binding 
 on the rightful executor, see Thomson v. Harding, 2 E. & B. 630. 
 
 2 Gr. Ev. § 189, in part. 
 
 ' Crease v. Barrett, 1 C. M. & K. 932. See Doe v. Seaton, 2 A. & E. 171. 
 
 ■• Bp. of Meath v. M. of "Winchester, 3 Bing. N. C. 183 ; Maddison v. Nuttall, 
 6 Bing. 226 ; 3 M. & P. 544, S. C. ; Doe v. Cole, 6 C. & P. 359, per Patteson, 
 J. ; De Whelpdale v. Milburn, 5 Price, 485 ; Carr v. Mostyn, 5 Ex. B. 69. 
 
 * Lady Dartmouth v. Eoberts, 16 East, 334. 
 
 « Bridgman v. Jennings, 1 Ld. Ray. 734 ; B. N. P. 283, a. 
 
 ' Woolway v. Rowe, 1 A. & E. 114 ; 3 N. & M. 849, S. C. ; Doe v. Austin, 
 9 Bing. 41 ; Davies v. Pierce, 2 T. R. 53 ; Doe v. Jones, 1 Camp. 367 ; Jackson 
 
CHAP. XIV.] ADMISSIONS BY PRIVIES. 661 
 
 § 789. The question how far the admissions of tenants may be § 714 
 received in evidence against their landlords is not very distinctly 
 ascertained ; but, although in one case at Nisi Prius it has been 
 held, that the receipts of a lessee of vicarial tithes were evidence, 
 in proof of a modus, against the vicar, by reason of the privity 
 between them;^ and though in an action of ejectment, the admis- 
 sion of the tenant in possession will, from the peculiar nature of the 
 proceedings, be evidence against one who defends as landlord ; ^ yet 
 it seems that, in general, the naked declarations of a tenant will 
 not be evidence against the reversioner ; ^ and it has been expressly 
 held, that the declarations of a former occupier of the defendant's 
 land were not admissible against him, on an issue whether the 
 plaintiff had an easement in such land.* 
 
 ■§ 790.^ The same principle holds in regard to admissions made by § 715 
 the assignor of a personal contract or chattel previous to the assign- 
 ment, where the assignee must recover through the title of the 
 assignor, and succeeds only to that title as it stood at the time of 
 its transfer. In such case, he is bound by the previous admissions 
 of the assignor in disparagement of his own apparent title. But 
 this is true only where an identity of interest exists between the 
 assignor and assignee ; and such identity is deemed to exist, not 
 only where the latter is either expressly or impliedly the mere agent 
 and representative of the former,^ but also where the assignee has 
 acquired a title with actual notice of the true state of that of the 
 assignor as qualified by the admissions in question, or where he has 
 
 V. Bard, 4 Johns. 230, 234; Norton v. Pettibone, 7 Conn. 319 ; Weidman 
 V. Kohl, 4 Serg. & R. 174. 
 
 '■ Jones V. Carrington, 1 C. & P. 329, 330, per Park, J. See, also, Illingwortli 
 v. Leigh, 3 Gwill. 1615; 3 Eag. & Y. 1385, S. C. 
 
 2 Doe V. Litherland, 4 A. & E. 784 ; 6 N. & M. 313, S. 0. See 15 & 16 V., 
 c. 76, §§ 172, 173. 
 
 ' Tickle V. Brown, 4 A. & E. 378, per Patteson, J. 
 
 ■• Scholes V. Chadwick, 2 M. & Bob. 507, per Cresswell, J. ; Papendick v. 
 Bridgwater, 5 E. & B. 166. 
 
 * Gr. Ev. § 190, almost verbatim. 
 
 * Welstead v. Levy, 1 M. & Rob. 138 ; Harrison v. Vallance, 1 Bing. 45 ; 
 Gibblehouse v. Strong, 3 Rawle, 437 ; Hatch v. Dennis, 1 Fairf. 244 ; Snelgrove 
 V. Martin, 2 M'C. 241, 243. 
 
662 ADMISSIONS' BY POEMEE HOLDEES OF BILLS. [PAET II. 
 
 purchased a demand already stale, or otherwise infected with cir- 
 cumstances of suspicion. 
 
 § 791.^ Thus, in an action by the indorsee of a bill or note, § 716 
 which has been taken by the plaintiff after it was due, or without 
 consideration, and with notice of fraud in its original concoction, 
 the declarations of the indorser, made while the interest was in 
 him, are admissible in evidence for the defendant.^ But, on the 
 other hand, the declarations of a former holder of a note, showing 
 that it was given without consideration, though made while he held 
 the note, are not admissible against the indorsee, to whom the in- 
 strument has been transferred on good consideration, and before it was 
 overdue ; for such an indorsee derives his title from the nature of the 
 instrument itself, and not through the previous holder ; and, as Mr. 
 Justice Parke properly observed, " the right of a person, holding 
 by a good title, is not to be cut down by the acknowledgment of a 
 former holder, that he had no title." ^ In applying this rule, a note 
 payable on demand, though not negotiated for some time after its 
 date, will not on that account be treated as a note taken by an in- 
 dorsee when overdue ; for such notes are intended to be continuing 
 securities, and may circulate for years without exciting suspicion.* 
 Neither will the circumstance that the declarations of the prior 
 holder would, if received, prove his fraud in connection with the 
 indorsee, render them admissible against the latter ; because all 
 preliminary facts, which are necessary to establish the admissi- 
 bility of evidence, must be proved aliunde, before such evidence 
 is received.^ 
 
 § 792. The case of Ivat v. Finch® appears to have been decided § 717 
 
 1 Gr. Ev. § 190, in part. 
 
 2 Beaucliamp v. Parry, 1 B. & Ad. 89 ; Peokliam v. Potter, 1 C. & P. 232, 
 per Ld. Giflfoid ; Benson v. Marshal, cited in Shaw v. Broom, 4 D. & E. 731 ; 
 Shirley v. Todd, 9 Greenl. 83. 
 
 3 Woolway v. Rowe, 1 A. & E. 116, explaining Barough v. White, 4 B. & C. 
 325 ; 6 D. & R. 379, S. 0. ; Smith v. De Wruitz, Ry. & M. 212, per Abbott, 
 C. J. ; Beauohamp u. Parry, 1 B. & Ad. 89. 
 
 ■i Barough v. White, 4 B. & 0. 325 ; Brooks v. Mitchell, 9 M. & W. 15. 
 " Phillips V. Cole, 10 A. & E. 106, 112 ; 2 P. & D. 288, S. C. See Heenan 
 V. Clements, 1 Ir. Law R., N. S. 44. « 1 Tannt. 141. 
 
CHAP. XIV.] ADMISSIONS BY PBIYIES. 663 
 
 partly on the same principle. That was an action of trespass for 
 taking three mares, the property of the plaintiff. The defendant, 
 who was lord of the manor, justified under a heriot custom ; and 
 the sole question between the parties was, whether one Alice Watson, 
 the tenant, was possessed of the mares at the time of her death. 
 The plaintiff contended that she had given them to him some time 
 before, and tendered in evidence her declarations to that effect. 
 These were rejected at the trial, but the court above held that they 
 were admissible, as they were against her interest, and the right of 
 the lord depended upon her title. But where the fact of this de- 
 pendence is not directly raised by the issue, such declarations will 
 be inadmissible ; and therefore, in Stotherd v. James,^ where an 
 issue was directed to try whether goods seized in A.'s house at the 
 suit of the defendant were the property of the plaintiff, the declara- 
 tions of A. respecting the property were rejected as evidence ; 
 because on that narrow issue the defendant would succeed, whether 
 the goods belonged to A. or to any other person besides the plaintiff. 
 Had the issue raised the question, whether the goods belonged to 
 A. at the time of the execution, it would seem, on principle, that 
 his declarations made before the seizure would have been evidence 
 against the defendant ; though, on an issue similar to that which 
 was raised in Stotherd v. James, Mr. Justice Wightman is reported 
 to have rejected the debtor's admissions, on the dubious ground that 
 the execution creditor claimed adversely to him.^ In the case of 
 Coole V. Braham,' the Barons of the Exchequer, while they doubted 
 the doctrine propounded by Mr. Justice Wightman, and intimated 
 an opinion that, in an interpleader suit, the execution creditor 
 should be considered as claiming under the debtor, held that the 
 admissions of the debtor would only be evidence against the execu- 
 tion creditor, when they qualified or affected the debtor's title to 
 the chattels in question ; and, therefore, on an interpleader issue 
 between the holder of a bill of sale and the execution creditor, 
 where the question raised was the usual one of fraud in the concoc- 
 tion of the bill of sale, the court determined that the plaintiff could 
 
 1 1 C. & Kir. 121, per Manle, J. 
 
 2 Prosser v. Gwillim, 1 C. & Kir. 95. 
 
 3 18 L. J., Ex. 105 ; 3 Ex. K. 183; S. C. 
 
664 ADMISS. BY PEOXY, AFTER PARTING WITH INTEREST. [PAET II. 
 
 not support the genuineness of the instrument, by giving evidence 
 of an admission by the debtor of a debt due from him to the 
 plaintiff, though such admission was made prior to the assignment, 
 it having also been made in the absence of the defendant. 
 
 § 793.1 Tj^^ege admissions by third persons, as they derive their § 718 
 legal force from the relation of the party making them to the 
 property in question, may be proved by any witness who heard 
 them, without calling the party by whom they were made. The 
 question is, whether he made the admission, and not merely 
 whether the fact is as he admitted it to be. Its truth, where the 
 admission is not conclusive, — and it seldom is so, — may be con- 
 troverted by other testimony, and even by calling the party him- 
 self ; but it is not necessary to produce him, for his declarations, 
 when admissible at all, will be received as original evidence, and 
 not as hearsay.^ 
 
 § 794. "With respect to the time and circumstances of the admis- § 719 
 sion it may first be observed, that whenever the declarations of a 
 third person are offered in evidence, on the ground that the party 
 against whom they are tendered derives his title from the declarant, 
 it must be shown that they were made at a time, when he had an 
 interest in the property in question ; because it is manifestly 
 unjust, that a person who has parted with his interest in property, 
 should be empowered to divest the right of another claiming under 
 him, by any statement which he may choose to make.^ Thus, the 
 admission of a former party to a bill of exchange, made after he 
 has negotiated it, cannot under any circumstances be received 
 against the holder ;* and where a person had, by a voluntary 
 postnuptial settlement, conveyed away his interest in an estate, 
 and afterwards had executed a mortgage of the same property, it 
 
 ' Gr. Ev. 191, almost verljatim. 
 
 2 Ante, §§ 576, 602, 603, and cases there cited; Woolway v. Rows, 1 A. &E. 
 114 ; 3 N. & M. 849, S. 0. ; BrickeU v. Hulse, 7 A. & E. 454. 
 
 3 Doe V. Webber, 1 A. & E. 740, per Ld. Denman ; Foster v. M'Mahon, 11 Ir. 
 Eq. E. 301. 
 
 * Pocock D. Billing, 2 Bing. 269 ; Shaw v. Broom, 4 D. & E. 730. See Eoberta 
 u. Justice, 1 C. & Kir. 93. 
 
CHAP. XIV. 1 OFFERS OF COMPEOMISE, WHEN ADMISSIBLE. 665 
 
 was held, that his admission that money had actually been 
 advanced upon the mortgage could not be received on behalf of 
 the mortgagee, who was seeking to set aside the former settle- 
 ment as voluntary and void.^ So, also, the^ declaration of a 
 bankrupt, though good evidence to charge his estate with a debt, 
 if made before his bankruptcy, is not admissible at all, if it were 
 made afterwards.^ This most just and equitable doctrine will 
 be found to apply to the cases of vendor and vendee, grantor and 
 grantee, and, generally, to all cases of rights acquired in good faith 
 previous to the time of making the admission in question.'' 
 
 § 795. It will here be convenient to repeat, — what has before been § 720 
 briefly noticed,^ — that confidential overtures of pacification, and any 
 other offers or propositions between litigating parties, expressly or 
 impliedly made without prejudice, are excluded on grounds of 
 public policy.^ For without this protective rule, it would often 
 be difficult to take any step towards an amicable compromise 
 or adjustment, and as Lord Mansfield has observed, all men 
 must be permitted to buy their peace, without prejudice to them 
 should the offer not succeed ; such offers being made to stop 
 litigation, without regard to the question whether anything is due 
 or not. If, therefore, the defendant, on being sued for lOOL 
 should offer the plaintiff 20L, and at the same time state that such 
 offer was made " without prejudice," this is not admissible in evi- 
 dence, for it is irrelevant to the issue ; it neither admits nor ascer- 
 
 1 Doe V. Webber, 1 A. & E. 733 ; 3 N. & M. 586, S. C. ; GuUy v. Bp. of 
 Exeter, 5 Bing. 171. ^ Gr. Ev. § 180, in part. 
 
 3 Bateman v. Bailey, 5 T. R. 513 ; Smith v. Simmes, 1 Esp. 330 ; Deady 
 V. Harrison, 1 Stark. R. 60. See, also, Harwood v. Keys, 1 M. & Eob. 204, and 
 Kempland v. Macauley, Pea. E. 66, per Ld. Kenyon. 
 
 " "Welstead v. Levy, 1 M. & Eob. 138 ; Bartlett v. Delprat, 4 Mass. 702, 708 
 Clark V. Waite, 12 Mass. 439 ; Bridge v. Eggleston, 14 Mass. 245, 250, 251 
 Plienix V. Ingrabam, 5 Johns. 412 ; Blacker v. Gonsaius, 1 Serg. & E. 526 
 Patton V. Goldsborough, 9 Serg. & E. 47 ; Babb v. Clenison, 12 Serg. & R. 328 
 Crowder v. Hopkins, 10 Paige, 183 ; Padgett v. Lawrence, id. 180, 181. 
 
 '" Ante, § 774. 
 
 6 Cory V. Bretton, 4 C. & P. 462, per Tindal, C. J. ; Healey v. Thatcher, 
 8 C. & P. 388 ; Paddock v. Forrester, 3 Scott, N. E. 734 ; 3 M. & Gr. 903, 
 S. C. ; Jardine v. Sheridan, 2 C. & Kir. 24; Whiffen v. Hartwiight, 11 Beav. 
 Ill ; Hoghton v. Hoghton^ 15 Beav. 821 ; Jones v. Foxall, id. 388. 
 
666 OFFERS OF COMPROMISE, WHEN ADMISSIBLE. [PAET II. 
 
 tains any debt, and is no more than saying that he would give 20L 
 to be rid of the action.^ So, in equity, it has been held, that the 
 giving of a small sum in order to obtain the release of a right, 
 could not be considered as an acknowledgment that a right 
 existed ; it amounts only to this — " I give you so much for not 
 seeking to disturb me."^ Perhaps, also, an offer of compromise, 
 the essence of which is that the party making it is willing to 
 submit to a sacrifice, or to make a concession,^ will be rejected, 
 though nothing at the time was expressly said respecting its con- 
 fidential character, if it clearly appear to have been made under 
 the faith of a pending treaty, into which the party has been led 
 by the confidence of an arrangement being effected;* though, in 
 this case, if the admission be merely of a collateral or indifferent 
 fact, such as the handwriting of a party, which is capable of easy 
 proof by other means, and is not connected with the substantial 
 merits of the cause, it will be received.^ The American courts 
 have held, that evidence of the admission of any independent fact 
 is receivable, though made during a treaty of compromise.^ 
 
 § 796. In the absence of any express, or strongly implied, § 721 
 restriction as to confidence, an offer of compromise is clearly 
 admissible as some evidence of liability;'' and although the offer 
 of a less sum than the amount demanded will not, in general, 
 support a count on an account stated, since it may be a mere 
 offer to purchase peace ; ^ — nor, perhaps, will an offer by the 
 drawer of a bill, who is threatened with legal proceedings upon 
 it, to give another bill by way of settlement, obviate the necessity 
 of proving at the trial that he has received due notice of dis- 
 
 1 B. N. P. 236, h. 
 
 2 Underwood v. Ld. Courtown, 2 Sch. & Lef. 67, 68, per Ld. Eedesdale. 
 
 3 Thomson v. Austen, 2 D. & R. 361, per Bayley, J. 
 
 ■* Waldiidge v. Kennison, 1 Esp. 144, per Ld. Kenyon. Id. 
 
 " Mount 1). Bogert, Antlion, 190, per Thompson, C. J. ; Murray ij. Coster, 
 4 Cowen, 635 ; Fuller v. Hampton, 5 Conn. 416, 426 ; Sanborn v. Neilson 
 4 New Hamps. R. 501, 508, 509 ; Delogny v. Rentoul, 1 Mart. 175. 
 
 7 Wallace v. Small, M. & M. 446, per Ld. Tenterden ; Watts v. Lawson, id. 
 447, n., per id. ; Nicholson v. Smith, 3 Stark. R. 129, per id. 
 
 8 Wayman v. Hilliard, 7 Bing. 101 ; 4 M. & P. 729, S. C. 
 
CHAP. XrV.J OFFERS OF COMPROMISE, WHEN ADMISSIBLE., 667 
 
 honour ; ^ yet there are occasions, — as for instance, if the drawer 
 of a bill, whose signature is in issue, has proposed a settlement, — 
 when the fact of an offer having been made may be entitled 
 to considerable weight.^ In the case of Thomas v. Morgan,^ 
 howeyer, where the defendant was sued for keeping mischievous 
 dogs, which had killed three of the plaintiff's cattle, and it 
 appeared that on being told of the injury done by them he had 
 offered to settle for it, the court held, that though this was a 
 fact, which in strictness should have been submitted to the jury 
 as evidence of the scienter,* it was entitled to Httle, if any, weight, 
 "as it might have been made from motives of charity without 
 any admission of liability at all." They therefore refused a new 
 trial, though the question, whether the offer of compromise was 
 not an admission of the defendant's liability, had not in point 
 of fact been left to the jury, the attention of the judge at Nisi 
 Prius not having been drawn to that particular point. After what 
 has been said above, authorities need scarcely be cited to show, 
 that admissions made before an arbitrator are receivable in a sub- 
 sequent trial of the cause, the reference having proved ineffectual.^ 
 
 § 797. Before leaving this subject one word of caution may be 
 added respecting a man's purchasing peace, where his conduct, 
 though strictly upright and honourable, may be subjected to mis- 
 
 1 Cuming v. French, 2 Camp. 106, ii., per Ld. EUentorough. See post, § 806. 
 
 '' Harding v. Jones, Tyr. & Gr. 135. 
 
 3 2 C. M. & R. 496 ; 5 Tyr. 1085, S. C. See, however, Sayers v. Walsh, 12 
 Ir. Law R. 435. 
 
 * The absurd doctrine of " scienter," as applicahle to mischievous docs no 
 longer prevails in its entirety ; though the law, notwithstanding four legis- 
 lative attempts at amendment, stiU. continues in a most unsatisfactory state. 
 In Ireland, " the owner of every dog is liable in damages for injury done to 
 any sheep by his dog," whether such dog be mischievous or not ; 25 & 26 V. 
 c. 59, § 1, Ir. See, also, 28 & 29 V., c. 50. Ir. A somewhat similar amend- 
 ment of the law has been introduced into England and Scotland, and has been 
 extended in these countries to injuries caused by dogs to sheep or cattle • 26 
 & 27 v., 0. 100, § 1, Sc. ; 28 & 29 V., c. 60. The word "cattle" here used, 
 includes horses, Wright v. Pearson, 4 Law Rep., Q. B. 582 ; 38 L. J., Q. B 312 • 
 10 B. & S. 723, S. C. •.,.., 
 
 5 Gregory v. Howard, 3 Esp. 113, per Ld. Kenyon ; Slacks. Buchannan, Pea. 
 R. 5, per id. 
 
668 ADMISSIONS MADE UNDEE CONSTEAINT. [PABT II. 
 
 interpretation. Such a course is always pusillanimous, seldom 
 gains its immediate object, and, if it fails, may be productive of 
 irreparable injury to character. The counsel of a man who has 
 once lent himself to such an arrangement, may feebly urge that 
 he was actuated by motives of charity and benevolence ; but the 
 opponent will more loudly and successfully contend that his 
 behaviour amounts to proof of a consciousness of misconduct ; 
 and the judge, while he rejects both these interpretations, will 
 perform no easy task, should he induce the jury to ascribe it to 
 the infirmity of one, who was reluctant to have his character and 
 conduct questioned, and his name bandied about in the pubHc 
 papers. " Let this action," said Lord Ellenborough, — when Sir 
 WilUam Scott was sued for illegally excommunicating one 
 Beaurain, whose animosity he had endeavoured to stifle by a 
 gift, — " Let this action be a lesson for all men to stand boldly 
 forward — to stand on their characters — and not, by compro- 
 mising a present diificulty, to accumulate imputations on their 
 honour."-^ 
 
 § 798.^ In regard to admissions made under circumstances of § 723 
 constraint, the rule of law is this, that they cannot be received 
 when obtained by illegal duress ; ^ but that they are admissible, 
 at least on the trial of civil actions,* if the compulsion under 
 which they were made was legal. Thus affidavits sworn by a 
 party in former legal proceedings, answers filed by bim in 
 Chancery in a former suit, evidence given by him in an action 
 at law, or his examination taken in bankruptcy, will be evidence 
 against himself in a subsequent cause ; and this, too, though 
 his subsequent opponent was a stranger to the prior proceed- 
 ing,5 — though he himself might, had he thought fit, have success- 
 
 ' L(l. Eldoii's Life, by Twias, vol. ii., pp. 233—235, 2nd ed. 
 
 2 Gr. Ev. § 193, in part. 
 
 3 Stookfleth V. De Tastet, 4 Camp. 11, per Ld. Ellenborough; Eobson v. 
 Alexander, 1 M. & P. 448. As to what questions a witness may refuse to 
 answer, see post, § 1453, et seq. 
 
 " As to their admissibility in criminal proceedings, see post, §§ 895 899. 
 
 ' Grant v. Jackson, Pea. R. 203, per Ld. Kenyon ; Ashmore o Hardy 
 7 C. & P. 501, 504, per Patteson, J. ' 
 
CHAP. XIV.J ADMISSIONS MADE UNDER CONSTKAINT. 669 
 
 fully demurred to the questions/ — ^though they were irrelevant 
 to the matter before the court at the time of his examination, 
 and were put to him for the purpose of procuring evidence in 
 an action depending against him,^ — and though he had no op- 
 portunity of fully explaining the testimony he had given. This 
 last point may be illustrated by the case of CoUett v. Lord 
 Keith,* where in an action for taking the plaintiff's ship, the 
 testimony of the defendant, given as a witness in an action 
 between other parties, in which he admitted the taking of the 
 ship, was allowed to be proved against him ; though it appeared 
 that, in giving his evidence, when he was proceeding to state his 
 reasons for taking the ship, the judge had stopped him by saying 
 that it was unnecessary for him to vindicate his conduct. The 
 manner in which the evidence had been obtained was matter of 
 observation to the jury ; but as what was said bore directly on 
 the issue, it could not be excluded as evidence of the fact. So, 
 where a defendant had been examined before commissioners of 
 bankrupts, and, though the whole of what he said had not been 
 taken down, the portion that was reduced to writing had been read 
 over and signed by him, this was held to be receivable against him 
 as a statement of facts, the truth of which he had admitted.* 
 
 § 799. It has been said that an admission, obtained under a § 72t 
 compulsory examination, will not be evidence of an account 
 stated ; but the case in which this point arose, probably rests on 
 the ground that the admission was there made to a third party, ^ 
 while to support an account stated the admission must be made, 
 either to the person to whom the money is owing, or to some one 
 sent by him.^ If, therefore, the admission were contained in an 
 
 ' Smith V. Beadnell, 1 Camp. 30, 33, per Ld. Ellenborougli. 
 
 2 Stookfleth. V. De Tastet, 4 Camp. 10. If the commission has been per- 
 verted to improper purposes, the remedy is by an application to have the 
 examination taken from the files and cancelled, id. 11, per Ld. Ellenborough. 
 
 3 4 Esp. 212, per Le Blanc, J. 
 
 '' Milward v. Forbes, 4 Esp. 171, per Ld. EUenborough. 
 5 Tucker v. Barrow, 7 B. & C. 625, per Littledale, J. ; 3 C. & P. 90 ; 1 M. 
 & R. 518, S. C. 
 
 " Breckon v. Smith, 1 A. & E. 488 ; Bates v. Townley, 2 Ex. R. 156, 157. 
 
670 NATURE OF ADMISSIONS DIEECT INCIDENTAL. [PAET II. 
 
 answer to interrogatories, which is clearly an answer to the plaintiff 
 in the suit, it would most probably be regarded as good eyidence of 
 an account stated.^ 
 
 § 800.^ Passing now to a consideration of the nature of ad- § 725 
 missions, it may be observed that no difference exists, in regard 
 to their inadmissibility, between direct admissions, and those 
 which are incidental, or made in some other connexion, or in- 
 volved in the admission of some other fact. One or two cases 
 illustrative of this rule have already been noticed, while treating 
 of admissions made by solicitors ; ^ but it may here be added, 
 that in an action by the assignees of a bankrupt against an 
 auctioneer, to recover the proceeds of a sale of the bankrupt's 
 goods, the defendant's advertisement of the sale, in which he 
 described the goods as " the property of D., a bankrupt," was 
 held to be a conclusive admission that D. was a bankrupt, and 
 that the defendant was acting under his assignees.* So, where a 
 party, with a view of suing out a commission of bankruptcy 
 against a trader, made an affidavit that the trader owed him lOOZ., 
 and was become bankrupt, he was not allowed afterwards to 
 dispute the bankruptcy, when he was himself sued in trover by 
 the assignees of the bankrupt, appointed under a second com- 
 mission, for the price of some flour which he had clandestinely 
 received from the trader, and applied to the discharge of his own 
 debt.5 
 
 § 801.^ Other admissions stve implied from assumed character; §726 
 for, whenever the existence of any domestic, social, or official 
 relation is in issue, any recognition, whether by word or deed, of 
 that relation, is prima facie evidence of its existence, as against 
 the person making such recognition.''' This rule is more frequently 
 
 ' See Bates v. Townley, 2 Ex. R. 157, per Alderson, B. 
 
 2 Gr. Ev. § 194, in part. 3 ^^te, § 773. 
 
 ■• Maltby v. Christie, 1 Esp. 342, as explained by Ld. Ellenborough in 
 Rankin v. Horner, 16 East, 193. 
 
 " Ledbetter v. Salt, 4 Bing. 623 ; Harmer v. Davis, 7 Tatint. 577. See post, 
 § 856, ad fin. e Qj._ gy. § 195^ jn part. 
 
 ' Dickinson v. Coward, 1 B. & A. 677, 679, per Ld. Ellenborough ; re- 
 cognised by Ld. Lyndhurst in Inglis v. Spenoe, 1 C. M. & E. 436. 
 
CHAP. XIV.] ADMISSION, IMPLIED FROM ASSUMED CHAEACTEB. . 671 
 
 applied against a person, who has recognised the character or 
 office of another ; but it embraces, in its principle, any repre- 
 sentation or language in regard to himself. Thus, — to illustrate 
 the second branch of the rule first, — ^where one has asswmed to 
 act in an official character, this is an admission of his appoint- 
 ment or title to the office, so far as to render him liable, even 
 criminally, for misconduct or neglect in such office. -^ This doc- 
 trine has been held to apply, among other cases, to actions or 
 prosecutions against clergymen, for non-residence ; ^ against military 
 of&cers, for returning false musters ; ^ against popish priests, for 
 remaining forty days within the kingdom, when this was con- 
 sidered an offence of no less magnitude than high treason ;* against 
 letter-carriers, for embezzlement;^ and against solicitors,* toll- 
 gatherers,'' and collectors, for penalties.^ 
 
 § 802. So, — under the first branch of the rule, — where one has § 727 
 recognised the offiicial character of another, by treating with him 
 in such character -or otherwise, this is at least prima facie evidence 
 of his title against the party thus recognising it.* For instance, 
 where a person had received credit from the renter of turnpike 
 tolls, and had afterwards accounted with him in that character, 
 and made him a partial payment, he was not permitted to question 
 the legality of his appointment ; ™ and where a farmer-general of 
 post-horse duties brought an action for certain statute penalties 
 against a person who let out horses for hire, proof of his appoint- 
 ment was waived, the defendant having previously accounted vidth 
 
 1 See ante, § 171. 
 
 '^ Bevan v. Williams, 3 T. R 635, a, per Ld. Mansfield. 
 
 ^ K. V. Gardner, 2 Camp. 513, per Ld. EUenborougli. 
 
 " R. V. Kerne, 7 How. St. Tr. 714 ; R. a Brommich, id. 722 ; R. v. Atkins, 
 id. 728. The Act of 27 El., c. 2, under wliicli these poor wretches were tried, 
 is now repealed by 7 & 8 V., c. 102. 
 
 * R. V. Borrett, 6 C. & P. 124, per Littledale and Bosanquet, Js., and 
 Bolland, B. The prisonei was indicted under 2 W. 4, c. 4, now repealed by 
 24 & 25 v., c. 95. 
 
 '« Cross V. Kaye, 6 T.. R. 663. 
 
 ' Trowbridge v. Baker, 1 Cowen, 251, 
 
 8 Lister v. Priestly, Wightw. 67. 
 
 ■" Peacock v. Harris, 1.0 JEast, 104. i" See antes, ^§ 173—175. 
 
672 EECOGNITION OF OFFICIAL CHAEACTEB OF OTHERS. PART II. 
 
 him as farmer-general.^ So, the clerk of the trustees of a turn- 
 pike road has not been allowed to show, that a person who had 
 acted as one of the trustees, and had been treated as such by 
 himself, while clerk, was not duly qualified ; ^ and in an action by 
 the trustee of a bankrupt against a debtor, who has made him 
 a partial payment,^ or has acknowledged his title in letters to 
 the solicitor under the bankruptcy,* the plaintiff need not' prove 
 his title as trustee, though notice to dispute it has been given. 
 Again, where a solicitor brought an action against a defendant for 
 defamation, in charging him with swindling, and threatening to 
 have him struck off the rolls, this threat was held to imply an ad- 
 mission that the plaintiff was a solicitor ; ^ and in a similar action 
 brought by a physician, where the plaintiff was spoken of as 
 " Doctor L.," and the defendant, who was an apothecary, had made 
 up medicines prescribed by him, the Court of Common Pleas was 
 equally divided upon the question, whether the defendant's words 
 and conduct amounted to an acknowledgment of the plaintiff's 
 character.^ In actions of this kind, however, if the words com- 
 plained of charge a want of qualification and not mere miscon- 
 duct, the plaintiff must prove that he possesses the character 
 which has been impugned, for the slander in such case does not 
 admit it.''' 
 
 § 803. The case of Lipscombe v. Holmes ^ affords a good § 72 
 example of both branches of the rule in question. That was 
 an action for work and labour as a surgeon ; and the defence 
 was that the plaintiff was a physician, and therefore incapable, by 
 the law then in force,^ of maintaining an action for fees. It was 
 
 ' Eadford v. M'lntosh, 3 T. R. 632. 
 
 "■ Pritchard v. Walker, 3 0. & P. 212, per Vaughan, B. 
 
 3 Dickinson v. Coward, 1 B. & A. 677. 
 
 ■" Inglis v. Spence, 1 C. M. & R. 432 ; Crofton v. Poole, 1 B. & Ad. 561. 
 
 5 Benyman v. Wise, 4 T. R. 366. 
 
 « Smitk v. Taylor, 1 N. R. 166 ; Sir J. Mansfield, and Heath, J., aff., Rooke 
 and Clianilire, Js., neg. 
 
 ? Id. 207 ; CoUins v. Carnegie, 1 A. & E. 703, per Ld. Denman. 
 
 8 2 Gamp. 441. See further on tliis subject, R. v. Barnes, 1 Stark. R. 243 ; 
 Cummin v. Smith, 2 Serg. & R. 440 ; DivoU v. Leadbetter, 4 Pick. 220. 
 
 » See now 21 & 22 V., c. 90, § 31 ; Gibbon v. Budd, 32 L. J., Ex. 182 ; 2 
 
CHAP. Xrv.] ADMISSIONS IMPLIED FROM CONDUCT. 673 
 
 shown that he had written prescriptions and signed himself M.D., 
 upon which Lord Ellenborough was on the point of nonsuiting 
 him, saying that " if a person passes himself off as a physician, 
 he must take the character cum onere." It appealing, howeTer, 
 that the defendant had paid money into court, his lordship thought 
 that this act removed the objection, being tantamount to an 
 admission of the plaintiff's right to sue as a surgeon. 
 
 § 804.^ Admissions implied from the conduct of the party are § 729 
 gOYerned by the same principles ; and although this class of ad- 
 missions has already been adverted to, while treating of the law 
 of presumptions,^ it deserves further illustration in this place. 
 Thus, an attempt by a plaintiff to suborn false witnesses is cogent 
 evidence, in the nature of an admission by conduct, that his cause 
 is an unrighteous one.^ So, the suppression of documents is an 
 admission that the contents were deemed unfavourable to the 
 party suppressing them.* The entry of a charge to a particular 
 person in a tradesman's book, or the making out of a bill of 
 parcels in his name, is an admission that the goods were furnished 
 on his credit.'' The dehvery, too, by a tradesman, of an invoice 
 or account in which goods are described as bought from him, is 
 strong, but not conclusive evidence, that he was the real vendor.^ 
 The omission of a claim by an insolvent in a schedule of the 
 debts due to him given on oath, is an admission that it is not 
 due ; though whether it amounts to a conclusive admission may 
 
 PL & C, 92, S. C. ; and by-law by the Royal College of Pliysicians, that no 
 Fellow of the Coll. shall lie entitled to sue for fees. This by-law, it wiU be 
 observed, does not extend to ordinary members of the Coll., and such persons 
 may now sue by virtue of the Medical Act. 
 
 1 Gr. Ev. § 196, in part. ' Ante, §§ 107, 116, 117, 178, 555. 
 
 3 Moriarty v. Lond. Chat. & D. Ey. Co., 39 L. J., Q. B. 109 ; 5 Law Eep., 
 Q. B. 314, S. C. 
 
 " James v. Biou, and Owen v. Mack, 2 Sim. & St. 606, 607 ; Bell v. FranMs, 
 4 M. & Gr. 446 ; Curlewis v. Corfield, 1 Q. B. 814 ; 1 G. & D. 489, S. C. ; 
 Clifton V. U. S., 4 Howard, S. Ct. R. 242 ; E. v. Lond. Bright. & S. Coast Ey. 
 Co., 20 L. J., M. C. 145, per Coleridge, J. ; Sutton v. Devonport, 27 L. J., C. P. 
 54 ; Edmonds v. Foster, 45 L. J., C. P. 41. 
 
 * Storr 11. Scott, 6 C. & P. 241, per Ld. Lyndhurst. See Thomson v. Daven- 
 port, 9 B. & C. 78, 86, 90, 91. 
 
 « Holding V. Elliott, 29 L. J., Ex. 134 ; 5 H. & N. 117, S. C. See post, 
 
 § iir.3. 
 
674 ADMISSIONS IMPLIED FROM CONppOT. [PAM H. 
 
 be a question of some doti|:?t.^ Payment of money is an admis- 
 sion against the payer, that the receiver is the proper person to 
 receive it; but not against the receiver, that the payer was 
 the person whio was bound to pay it; for the party' receiving 
 payment of a just demand may well assume, withouj; inquiry, that 
 the party tendering the money was the person legally bound to 
 pay it.^ 
 
 § 805. Eelief given at various times to a pauper while residing § 730 
 in another parish, is cogent, though not conclusive, evidence t|i^t he 
 is settled in t}ie relieving parish;^ and even a single instance of 
 such relief having been given will warrant a similar conclusion.* 
 Of course the effect of such evidence will be much stronger, if the 
 examination states a distinct head of settlement in the reUeving 
 parish, though the technical proof may fail to establish it satisfac- 
 torily.' On the other hand, the relief of a pauper, while resi(^ing 
 in tlje relieving parish, is no evidence whatever of a settlement, 
 however frequently it may have been bestowed ; ^ but this rule rests, 
 not so much on the absence of any presumption deducible from the 
 conduct of the relieving parish, as on the impolicy of permitting 
 such evidence to have any weigjit; for if parochial officers, by 
 giving relief to a pauper, were to make evidence against themselves 
 
 ' In Nicholls v. Downes, 1 M. & Bob. 13, Ld. Tenterden held it to be con- 
 clusive, apparently questioning Hart v. Newman, 3 Camp. 13, where Ld. 
 EUenborough treated it as entitled to little weight. See Tilghman v. Fisher, 
 9 Watts, 441. 
 
 2 James v. Biou, 2 Sim. & St. 606 ; Chapman v. Beard, 3 Anstr. 942. 
 
 ' K. V. Barnsley, 1 M. & Sel. 377, 380, per Ld. EUenborough ; B. v. "Wake- 
 field, 5 East, 335 ; B. v. Stanley cum Wl'enthorpe, 15 East, 350 ; E. v. East 
 Winch, 12 A. & B. 697 ; B. v. YarweU, 9 B. & C. 894 ; 4 M. & B. 685, S. C. ; 
 B. V. Carnarvonshire, Js., 2 Q. B. 325. Formerly the relief must have been 
 given by the churchwardens and overseers in order to furnish evidence against 
 the parish, but the board of guardians now represent for this purpose every 
 parish within the union. See E. v. Crondall, 2 Sess. Cas. 667 ; 10 Q. B. 
 812, S. C. ; and the clerk to the guardians represents the board ; B. v. Wigan, 
 14 Q. B. 287. 
 
 * R. V. Edwinstowe, 8 B. & C. 671. 
 
 * R. D. Bedingham, 1 Sess. Cas. 114, per Ld. Denman. 
 
 « R. V. Chatham, 8 East, 498 ; B. v. Trowbridge, 7 B. & C. 252; 1 M. & 
 B. 7, S. C. ; R. V. Coleorton, 1 B. & Ad. 25 ; H.v. St. Giles-in-the-Fields, 5 
 Q. B. 872. 
 
CHAP, XIV.] ADMISSIONS IMPLIED PROM CONDUCT. 675 
 
 as to his settlement in their parish, they would perfoiin theii" duty 
 to C9,su^} poor with great reluctance.^ 
 
 § 806. A dis|}inct promise by the drawer to pay, or indeed any § '731 
 acknowledgment by him of liability upon, a dishonoured bill, — as, 
 for example, the suffering judgment by default in a prior action, 
 brought by a former holder of the instrument,— will raise an in- 
 ference tbat lie |ias eitlier received or waived due notice of dishonour,® 
 and, in the case of a foreign bill, that it has been duly protested ; ^ 
 and ^ j^^y will ^^ justified in coming to the same conclusion on 
 less positive evidence ; as, for instance, if the drawer, in disclairning 
 liability when threatened with an action, did not rest his defence 
 on the want of notice, but on some different ground.* ^he maxim, 
 expressuni facit cessare taeitum, will here rg,ise a presumption, wMch 
 a defendant may find it difjcult to rebut. The smng,^ or distraining,* 
 for rent, accruing di^e since a forfeiture of which the lessor has had 
 notice, as also the acceptance of such rent,''' and, perhaps, even the 
 mere demand of it,^ will, — unless an action of ejectment has actually 
 
 ' R. V. Chatham, 8 Bast, 501, per Ld. EUenljorough ; R. v. Coleorton, 1 
 B. & Ad. 27, per Bayley, J. 
 
 2 Eabey v. Gilbert, 30 L. J., Ex. 170 ; 6 fl. & N. 536, S. G. ; Woods v. Dean, 
 32 L. J., Q. B. 1 ; 3 B. & S. 101, S. C. ; Cordery v. Colvin, 14 Com. B., N.'S. 
 374 ; S. C. nom. Cordery v. Colville, 32 L. .1., C. P. 210 ; Killby v. Eoohussen, 
 18 Com. B., N. S. 357. 
 
 3 Hicks V. J), of Beaufort, 4 Bing. N. C. 229, 232 ; Campbell v. Webster, 
 2 Com. B. 258 ; Patterson v. Becber, 6 Ifoore, 319 ; Brownell v. Bonney, 
 1 Q. B. 39 ; Pardoe v. O'Connor, 12 Ir. Law R. 63. ' See Bell v. Frankis, 4 
 M. & Gr. 446 ; Holmes v. Staines, 3 C. & Kir. 19. 
 
 ^ Wilkins v. Jadis, 1 M. & Rob. 41, per Ld. Tenterden ; Curlewis ■». Corfield, 
 1 Q. B. 814 ; 1 G. & D. 489, S. C. See ante, § 796. 
 
 5 Roe V. Minsbal, cited B. N. P. 96, c ; Dendy v. Nicboll, 27 L. J., C. P. 
 220 ; 4 Com. B., N. S. 376, S. C. See Toleman v. Portbnry, 6 Law Pep., 
 Q. B. 245 ; 40 L. J., Q. B. 125, S. C. ; in Ex. Ch., S. C. 41 L. J., Q. B. ^8 ; 
 and 7 Law Rep., Q. B. 344. 
 
 s Doe V. Peck, 1 B. & Ad. 428 ; Coteswortb v. Spokes, 30 L. J., C. P. 220 ; 
 10 Com. B., N. S. 103, S. C. ; Ward ■„. Day, 33 L. J., Q. B. 3, 254 ; 4 B. & S. 
 337 ; and 5 B. & S. 359, S. C. 
 
 7 Warwick v. Hooper, 3 M. & Gord. 60, 69, per Ld. Truro, Cb. ; Croft v. 
 Lumley, 25 L. J., Q. B. 73 ; 5 E. & B. 648, S. C. ; 27 L. J., Q. B. 321, S. C. 
 in Dom. Proc. ; 6 H. of L. Cas. 672, S. C. ; Price v. Worwood, 4 H. & N. 512. 
 
 ' Doe V. Birch, 1 M. & W. 402. 
 
 X X 2 
 
676 WAIVER OF PORPBITXJBE — OF A NOTICE TO QUIT. [PAET II. 
 
 been brought,^ — amount to an ackuowledgment of the tenancy on 
 the part of the lessor, and will, consequently, waive the forfeiture ; ^ 
 though, if the breach be a continuing one, as the using rooms in a 
 prohibited manner, or the omitting to keep premises insured or re- 
 paired, the acceptance of rent after such breach will not waive the 
 forfeiture incurred by subsequent user or omission.^ A notice to 
 quit will also in general be regarded as waived, if the landlord 
 accepts rent subsequently accruing due, or puts in a distress for 
 such rent, or does any other act amounting to a recognition of an 
 existing tenancy, after the expiration of the time when the tenant 
 ought to have quitted according to the notice.* Whether a simple 
 demand of rent subsequently accruing due, or the bringing of an 
 action for such rent, will operate as a waiver of a notice to quit, is 
 a question not of law, but of fact, which must consequently be de- 
 termined by the jury.^ And here it must be remembered that, as 
 a notice to quit has the legal effect of determining a tenancy, the 
 waiver of such notice does not revive the tenancy thus determined, 
 but creates a new one.^ 
 
 § 807. The doctrine of impHed waiver, as applicable to the law § 73U 
 of landlord and tenant, is not now recognised in Ireland, the Act of 
 23 & 24 v., c. 154, having expressly enacted, in § 43, that where 
 any lease, made after the 1st of January, 1861, shall contain or 
 imply any condition, covenant, or agreement to be observed or per- 
 formed on the part of the tenant, no act done or suffered by the 
 landlord shall be deemed a dispensation therewith, or a waiver of 
 
 1 Grimwoocl v. Moss, 7 Law Kep., C. P. 360 ; 41 L. J., C. P. 239 S. 0. 
 
 ^ Goodright v. Davids, 2 Cowp. 803 ; Walrond v. Hawkins, 44 L. J. C. P. 
 116 ; 10 Law Eep., 0. P. 342, S. C. ; Roe v. Harrison, 2 T. R. 430, 431 ; Doe 
 V. Allen, 3 Taunt. 78 ; Doe v. Rees, 4 Ring. N. C. 384 ; Arnsby v. Woodward 
 6 H. & 0. 519. ' 
 
 3 Doe V. WoodMdge, 9 B. & C. 376 ; Doe v. Peck, 1 B. & Ad. 428 ; Hyde 
 V. Watts, 12 M. & W. 254 ; Price v. Worwood, 4 H. & N. 512 ; Doe v. Gladwin, 
 6 Q. B. 953, 963 ; Doe v. Jones, 5 Ex. R. 498. See post, § 847. 
 
 * Zouch V. Willingale, 1 H. Bl. 311 ; Goodright v. Cordwent, 6 T. R. 219 • 
 Doe V. Batten, 1 Cowp. 243 ; Doe v. Calvert, 2 Camp. 388. 
 
 i* Blyth V. Dennett, 13 Com. B. 178 ; Doe v. Batten, 1 Cowp. 243 • Vance 
 V. Vance, I. R., 5 C. L. 363. 
 
 " Taylexir v. Wildin, 3 Law Rep., Ex. 303 ; 37 L. J., Ex. 173, S. C. 
 
CHAP. XIV.] ADMISSIONS IMPLIED FROM ACQUIESCENCE. 677 
 
 the benefit of the same in respect of any breach thereof, unless such 
 dispensation or waiver shall be signified by the landlord, or his 
 authorised agent, in writing under his hand. 
 
 § 808. The class of admissions now under discussion has, how- § 732 
 ever, on another occasion, been partially recognised by the Legisla- 
 ture, which, for the sake of promoting substantial justice, has drawn 
 a conclusive inference from particular conduct. Thus, if a lease 
 granted under a power be invalid by reason of some deviation from 
 the terms of the power, the acceptance of rent under it will, — by 
 virtue of the Act of 13 & 14 V., c. 17, § 2, — be deemed a confirma- 
 tion of the lease as against the person accepting the rent ; provided 
 such person, or some one else by his authority, shall, before or at 
 the time of accepting the rent, sign a receipt, memorandum, or note 
 in writing, confirming such lease. 
 
 § 809.^ Admissions may also be implied from the acquiescence of § 733 
 the party. But acquiescence, to have the eifect of an admission, 
 must exhibit some act of the mind, and amount to voluntary de- 
 meanour or conduct of the party. ^ And whether it be acquiescence 
 in the conduct or in the language of others, it must plainly appear 
 that such conduct was fully known, or such language fully under- 
 stood, by the party, before any inference can be drawn from his 
 passiveness or silence.^ The circumstances, too, must be not only 
 such as afforded him an opportunity to act or to speak, but such 
 also as would properly and naturally call for some action or reply 
 from men similarly situated.'* Thus, where a landlord quietly 
 suffers a tenant to expend money in making alterations and im- 
 provements on the premises, it is evidence of his consent to the 
 alterations ; ^ though the mere lying by and passively witnessing a 
 
 1 Gr. Ev. § 197, in great part. - Allen v. McKeen, 1 S;;mn. 314. 
 
 3 See Smith 1). Hayes, I. E., 1 C. L, 333 ; Daviesii. Marshall, 10 Com. B.,N. S. 
 697 ; Bickett v. Morris, 1 Law Rep., H. L. Sc. 57. 
 
 ■• Melen v. Andrews, M. & M. 336 ; explained in Simpson v. Robinson, 12 
 Q. B. 512, per Ld. Denman ; R. v. Newman, 1 E. & B. 268 ; Boyd v. Bolton, 
 1 Ir. Eq. R. 113. See Bigg v. Strong, 3 Sm. & Giff. 592. 
 
 5 Doe V. Allen, 3 Taunt. 78, 80 ; Doe v. Pye, 1 Esp. 366, per Ld. Kenyon ; 
 Neale v. ParMn, 1 Esp. 229, per id. See, also, Stanley v. White, 14 East, 332 ; 
 Cotuhing r. Basset, 32 L. J., Ch, 2Sf!, per Romilly, M, B, ; 32 Bear, 101, S, C. 
 
678 ADMISSIONS IMPLIED FBOM ACQUIESCENCE. [PA&T 11. 
 
 breach of covenant for several years, is not such an acquiescence as 
 to amount to a waiver of the forfeiture.^ Again, if a tenant, on 
 personally receiving notice to quit on a particular day, makes no ob- 
 jection, he will generally, in England,^ be deemed to have admitted 
 that his tenancy expires on that day;^ but if he cannot read, or 
 even if he did not read the notice in the presence of the person 
 serving it upon him, it will be treated as a notice not personally 
 served,* and will go for nothing.^ Thus, also, a trader being in- 
 quired for, and hearing himself denied, may thereby commit an act 
 of bankruptcy ; ^ and, in general, where one knowingly avails him- 
 self of another's acts done for his benefit, the jury will be justitied 
 in considering such conduct as an admission of his obligation to pay 
 a reasonable compensation.''' So, in settlement law, where two 
 brothers, claiming derivative settlements from their father, were 
 removed by successive orders, and the examination of the father 
 proving his settlement was served upon the appellants together with 
 the first order, against which there was no appeal, the fact of the 
 appellants not objecting to the ground of removal when they received 
 the first son, was held to be some shght evidence of an admission 
 that the father was settled in their parish ; and, consequently, 
 although on an appeal against the second order the first was inad- 
 
 > Doe V. Allen, 3 Taimt. 78 ; Perry v. Davis, 3 Com. B., N. S. 769. But see 
 ante, § 806. 
 
 2 In Ireland, however, tlie law is in part regulated liy § 6 of 23 & 24 V., 
 c. 154, wMch enacts, that " every tenancy from year to year shall be presumed 
 to have commenced on the last gale day of the calendar year on which rent has 
 become dne and payable in respect of the premises, until it shall appear to the 
 contrary." This law, though called a presumption, is, in fact, a mere arbitrary 
 rule, badly expressed. 
 
 ' Doe d. Leicester, 2 Taunt. 109 ; Thomas v. Thomas, 2 Camp. 647 ; Doe 
 V. Forster, 13 East, 405 ; Oakapple v. Copous, 4 T. E. 361 ; Doe v. WombweU, 
 2 Camp. 559, per Ld. EUenborough. See Walker v. Godd, 30 L. J., Ex. 172 ; 
 6 H. & N. 594, S. C. 
 
 " Doe V. Calvert, 2 Camp. 388, per Ld. EUenborough, explained in 2 Camp. 
 648. 
 
 ' Thomas v. Thomas, 2 Camp. 649 ; Doe v. Forster, 13 East, 405. 
 
 "^ Key V. Shaw, 8 Bing. 320. 
 
 ^ Morris V. Burdett, 1 Camp. 218, per Ld. EUenborough, where a candid^t^, 
 not bound by statute to pay for the hustings erected for an election, had made 
 nse of them. Abbot v. Hermon, 7 Greenl. 118, where a schoolhouse was used 
 by the school district ; Hayden v. Madison, id. 76. 
 
CHAP. XlV.] NOT OBJrECTING TO ACCOUNTS SENT BY POST. G'td 
 
 missible,-' the father's examination was received as part of the 
 evidence of such adinission.^ 
 
 § 8l0. The raising an objection to one item of an account, § 734 
 no remark being made as to the rest, will be evidence of an 
 account stated as to those items to which no objection has been 
 made ; * and, among merchants, an account rendered will be re- 
 garded as allowed, if it be not objected to within a second or thhd 
 post,* or, at least, if it be kepi for any length of time without 
 making an objection.^ With respect to ordinary accounts, how- 
 ever, a distinction has been taken in Ireland between such .as are 
 sent by post, and those delivered by hand; and it has been held 
 that the former, though kepi ty the party to wtom they were sent 
 wiihoui observation, are not admissible against him, as evidence 
 that he had acquiesced in their contents." In the case where this 
 point was determined. Chief Justice Bushe remarked, that what a 
 party says iipon an account furnished to him, or upon a, statement 
 made in his presence, may be given in evidence against him along 
 with the account or statement, because what is thus offered is the 
 act or declaration of the party to be affected by it, and the account 
 or ihe statement is by reference made a part of such act or decla- 
 ration ; but the naked faci that an account remains in the pos- 
 session of a party to whom it was sent, cannot amount to an 
 acquiescence in its contents. His lordship added, that the ad- 
 mission of such evidence would counienahce ihe notion, that a man 
 might, by furnishing an account claiming a balaiice againist his 
 creditor, estabhst an acquittance for himseli.^ 
 
 § 811. The same distinction between letters and oral statements § 735 
 
 1 On the authority of R. v. Duch. of Kingston, 20 ilow. St. Tr. 538, n. 
 
 ■* K. V. Sow, 4 Q. B. 93. . 
 
 3 CMsman v. Count, 2 M. & Gr. 307. 
 
 ' Sherman v. Sherman, 2 Vern. 276, per Hutohins, Ld. Com. 
 
 * Willis 1). Jemegan, 2 Atk. 252, per Ld. Hardwicke ; Tickel v. Short, 2 Yes. 
 Sen. 239, per id., where the account had been kept without objection for two 
 years. See, also, Freeland v. Heron, 7 Cranch,, 147, 151 ; Murray v. Toland, 
 3 Johns. 575 ; Coe v. Hutton, 1 Serg. & E. i§8 ; M'Bride v. Watts, 1 M'C. 348 ; 
 Corps 1). Eobinson, 2 Wash. C. C. E. 38g. 
 
 « Price V. Eamsay, 2 Jebb & Sy. 338. 7 Id. 342, 343. 
 
680 EFFECT OF NOT ANSWERINGf LETTEES. [PABT II. 
 
 has been partially recognised in England. " What is said to 
 a man before his face," obseryed Lord Tenterden in Fairlie v. 
 Denton,^ "he is in some degree called on to contradict, if he does 
 not acquiesce in it ; ^ but the not answering a letter is quite different; 
 and it is too much to say, that a man, by omitting to answer a 
 letter at all events, admits the truth of the statements that letter 
 contains." Lord Denman, also, in a later case, declared, that " it 
 was a great deal too broad a proposition to say, that every paper 
 which a man might hold, purporting to charge him with a debt or 
 liability, was evidence against him if he produced it."* In Gaskill 
 V. Skeene,* however, the Court of Queen's Bench subsequently 
 held, that letters containing a demand, written to a defendant, and 
 unanswered by him, were admissible in evidence for the plaintiff, 
 though they also stated facts showing how the demand arose ; 
 but possibly that case rested on the ground, that the defendant had 
 made some unsatisfactory statements respecting these letters, in a 
 subsequent conversation ivith the plaintiff's agent. On this last 
 ground unanswered letters written to a party have been admitted as 
 evidence in America.^ 
 
 § 812. Letters and other papers found in a party's possession § 730 
 will occasionally, in a civil suit, be evidence against him, as raising 
 an inference that he knows their contents and has acted upon 
 them;^ and they are fi-equently received in criminal prosecutions, 
 especially those for conspiracy and treason, though their weight, 
 as evidence against the prisoner, will in a great measure depend 
 on the fact, whether answers to them can be traced, or whether 
 anything can be shown to have been done upon them.'' So,^ also. 
 
 > 3 C. & P. 103. 
 
 " TMs doctrine, by the by, would justify much speaking at St. Stephen's. 
 
 » Doe V. FranMs, 11 A. & E. 795. 
 
 * 19 L. J., Q. B. 275 ; 14 Q. B. 664, S. C. See, also, Keen ^. Priest, 1 Post, 
 & Fin. 314 ; Lucy v. Mouflet, 29 L. J., Ex. 112 ; 5 H. & N. 229, S. C. ; Carne 
 V. Steer, 29 L. J,, Ex. 281 ; 5 H. & N. 628, S. C. ; and Gore r. Hawsev, 3 
 Eost. & Fin. .509, per Martin, B. 
 
 ^ Button V. Woodman, 9 Cush. 262. 
 
 « Hewitt V. Piggott, 9 0. & P. 75. 
 
 7 E. V. Home Tooke, 25 How. St. Tr. 120, 121, per Eyre, C. J. ; E. v, 
 Watson, 2 Stark. 140 ; 32 How. St. Tr. 349, 351, S. 0. 
 
 8 Gr. Ev. § 198, in part. 
 
CHAP. Xn'.] ACQUIESCENCE IN STATEMENTS BY STEANGEES. 681 
 
 the opportunity of constant access to documents may sometimes, 
 by raising a presumption that their contents are known, aiford 
 ground for affecting parties witli an implied admission of the 
 truth or correctness of such contents. Thus, the rules of a club, 
 or a record of the proceedings of a society, contained in a book 
 kept by the proper officer and accessible to the members,^ — 
 charges against a club, entered by the servants of the house in a 
 book kept for that purpose open in the club-room, '^ and the like, 
 — are admissible against the members ; their knowledge of the 
 contents of the books, and their acquiescence therein, being 
 presumable under the circumstances. On similar grounds, books 
 of account which have been kept between master and servant, 
 tradesman and shopman, banker and customer, or co-partners, will 
 occasionally be admitted as evidence even in favour of the party 
 by whom they have been written, provided that the opposite party 
 has had ample opportunities for testing from time to time the 
 accuracy of the entries.^ 
 
 § 813.* But in regard to admissions inferred from acquiescence § 737 
 in the oral statements of others, the maxim, Qui tacet consentire 
 videtur, — however it may be recognized by the lover, — must by 
 the lawyer be applied with careful discrimination. "Nothing," 
 it has been observed, "can be more dangerous than this kind of 
 evidence. It should always be received with caution : and never 
 ought to be received at all, unless the evidence is of direct decla- 
 rations of that land, which naturally calls for contradiction ; some 
 assertions made to the party with respect to his right, which by his 
 silence he acquiesces in."^ A distinction has accordingly been 
 taken between declarations made by a party interested and those 
 made by a stranger; and while what one party declares to the 
 other without contradiction is admissible evidence, what is said to 
 
 ' Eaggett & Musgrave, 2 C. & P. 556, per Abbott, C. J. ; Alderson v. Clay, 
 1 Stark. R. 405, per Ld. EUenborough ; Aslipitel v. Sercombe, 5 Ex. R. 147. 
 
 2 Wiltzie V. Adamson, 1 Ph. Ev. 357. 
 
 ' Symonds v. Gas LigM & Coke Co., 11 Beav. 283, 287; Boardman 'o. 
 Jaolcson, 2 Ball & B. 382 ; Kilbee & Sneyd, 2 Moll. 193 ; Lodge v. Pricbard, 
 3 De Gex, M. & G. 906 ; 15 & 16 V., c. 86, § 54 ; and 30 & 31 V., c. 44, § 159, 
 Ir., cited ante, § 711. ■• Gr. Ev. § 199, in great part. 
 
 ' Moore v. Smith, 14 Serg, & R. 393, per Duncan, C. J. 
 
fe'82 SILENCE OF ACCUSED IN JUDICIAL INQUIEIES. [PAET II. 
 
 a party by a third person may well be ina^issible. ■ It iriay be 
 impertinent, and be best rebuked by silence.^ Still less will state- 
 ments made by strangers in tbe presence of a party be receivable 
 against him, if they be not directly addressed to him ; because, in 
 such case, he can scarcely under any circumstances be called 
 upon to interfere. Therefore, where in a real action, upon a view 
 of the premises by a jury, one of the chairibearers was the owner 
 of a neighbouring close, respecting the bounds of which the 
 litigating parties had much altercation, their declarations in his 
 presence were held inadmissible against him, in a subsequent action 
 respecting his own close.^ 
 
 § 814. Moreover, to affect one person with the statements of § '738 
 others, on the ground of his implied admission of their truth by 
 silent acquiescence, it is not enough that they were made in his 
 presence, or even to himself, by parties interested, but they must 
 also have been made on an occasion, when a reply from him 
 might be properly expected.^ Depositions, therefore, taken in the 
 presence of a party during a judicial investigation, observations 
 made by a magistrate to the parties before him, and confessions 
 of an accomplice criminating his co-prisoner before the justices, 
 will not, in general,* be evidence in any subsequent trial, whether 
 civil or criminal, against the party who heard them in silence ; 
 because in judicial inquiries a regularity of proceeding is adopted, 
 which often prevents -a person from interfering when and how he 
 pleases, as he naturally would do in a common conversation.^ 
 The same inferences cannot, therefore, be drawn from his silence 
 
 ' Child V. Grace, 2 C. & P. 193, per Best, C. J. 
 
 2 Moore v. Smith, 14 Serg. & E. 388. 
 
 = Boyd V. Bolton, 8 Ir. Eq. R. 113. 
 
 ■* This cannot be laid down as a strict rule of law applicable on all occasions ; 
 for as Ld. Denman observed, in Simpson v. Robinson, 12 Q. B. 512, " cases may 
 certainly be conceived, in which a party, by not denying a charge made against 
 him in a court of justice, may possibly afford strong proof that the imputation 
 is just." See K v. Coyle, 7 Cox, 74. 
 
 ^ ^ Melen ■!). Andrews, M. & M. 336, per Parke, J. ; Short v. Stoy, cited in 
 EoBcoe Ev. 54, 55, as ruled by Alderson, B. ; E. v. Appleby, 3 Stark'. R. 33, 
 per Holroyd, J. ; E. v. Ttirner, 1 Moo. C. C. 347, 348, per Patteson, J. ; Child 
 V. Grace, 2 C. & P. 193. 
 
ikiP. jhv.J SitENOE WEAK EVIDENCE OF ACQUIESCENOB. 683 
 
 or his conduct on such occasions, as might reasonably result from 
 similar behaviour, were he under no restraint ; and as it is only 
 for the sake of these inferences that the statements of other parties 
 can ever be adiiiitted, they are properly rejected whenever they do 
 not warrant the inferences sought to be drawn from them. A 
 sirbiilar distinction has been recognised in the civil law, by which 
 " confessib facta seii prsesuiripta ex taciturnitate in aliquo judicio, 
 non niocebit in alio."^ 
 
 § 815. If, however, the statement of one person calls forth a § 739 
 reply frord another, such statement may then be read in conjunc- 
 tion with ihe reply, and will become evidence against the party 
 replying so far as the answer directly or indirectly admits its 
 truth; and ii -Will make no difference in the application of this 
 rule, whether the words were spoken by an interested party or a 
 Stranger, — ^whether they were addressed or not to the party reply- 
 ing, — or whether they fell from the parties, the witnesses, or the 
 court, in a judicial proceeding, or were uttered during the course of 
 an ordinary conversation.^ 
 
 § 816.^ But the silence of the party, even where the declarations § 740 
 are addressed to himself, at a time too when he is at full liberty to 
 reply as he thinks fit, is, at best, worth very little as evidence of 
 acquiescence ; * and if he has no means of knowing the truth or 
 falsehood of the statement, the fact that he did not in terms deny 
 it is almost valueless.^ In all these cases it must be distinctly 
 reineinbered, that the statement made in the party's presence or 
 hearing^ is not evidence against him, but his own conduct in con- 
 sequence of such statement is the sole evidence. Magistrates 
 
 ' 1 Masc. de Prob., conol. 348, n. 31. 
 
 2 Child V. Grace, 2 C. & P. 193 ; Jones i). Morrell, 1 C. & Kir. 266, per Ld. 
 Deimian ; R. v. Edmunds, 6 C. & P. 164, per Tindal, 0. J. ; Boyd v. Bolton, 
 8 Ir. Eq. E. 113. 
 
 3 Gr. Ev. § 199, in part. 
 
 -i See Ch. 26 of St. Matthew, v. 59—63 ; and Oh. 27, v. 12—14. 
 
 5 Hayslep v. Gymer, 1 A. & E. 165, per Parke, J. See, further, on the 
 subject of tacit admissions. The State v. Rawls, 2 Nott & M'C. 301 ; Batturs 
 V. SeUers, 5 Har. & J. 117, 119. 
 
 " See Neile v. Jakle, 2 C. & Kir. 709. 
 
684 EFFECT OF ADMISSIONS WHEN PEOVED. [PAET II. 
 
 often make mistakes on this subject ; but it is highly important 
 that the distinction should be observed.'^ 
 
 § 817.^ The effect of admissions, when proved, must next be § 741 
 considered ; and with regard to their conclusiveness, it is first to 
 be observed, that the policy of the law favours the investigation 
 of truth by all expedient methods; and that the doctrine of 
 estoppels, by which further investigation is precluded, being an 
 exception to the general rule, and being adopted only for the sake 
 of general convenience, and for the prevention of fraud, is not 
 to be extended beyond the reasons on which it is founded.^ It is 
 also to be observed, that estoppels bind only parties and privies ; 
 and not strangers. Hence it follows that a sheriff, who, being 
 armed mth a writ of execution in favour of a creditor, seizes 
 goods as the property of the debtor, is not bound by an estoppel 
 which would have prevented the debtor himself from claiming the 
 goods.* Neither, as it seems, would the trustee of a bankrupt be 
 bound by the bankrupt's written admissions, because the court 
 would regard the trustee as claiming adversely to the bankrupt.^ 
 Again, though a stranger may often rely on an admission, which 
 parties or privies might have specially pleaded by way of estoppel, 
 yet, in his case it is only matter of evidence to be considered 
 by the jury. This subject was very clearly illustrated by Mr. 
 Justice Bayley, in the case of Heane v. Eogers," which was an 
 action of trover, brought by a person, who had been declared 
 a bankrupt, against his assignees, to recover the value of goods, 
 which, as assignees, they had sold. The defendants contended 
 that the plaintiif was estopped from bringing this action, as, in 
 
 ' Per Alderson, B., at Maidstone Sp, Asa. 1842, MS.; Doe v. Frankis, 11 
 A. & E. 793, per Ld. Deiimaii. = Gr. Ev. § 204, in part. 
 
 » See ante, § 89. 
 
 ■> Richards v. Jolmston, 4 H. & N. 660 ; overmling the decision of Channel!, 
 B., in S. C, reported 1 Fost. & Fin., 447. 
 
 ' Harris v. Rickett, 4 H. & N. 6, per Bramwell, B. 
 
 « 9 B. & 0. r377, 586, 587. See Morgan v. Conchman, 14 Com. B. 100 ; 
 Painter u. Abel, 3 Fost. & Fin. 518, per Erie, C. J. ; Welland Canal Co. v. 
 Hathaway, 8 Wend. 483 ; Jennings r. Whittaker, 4 Monroe, 50. See, also, 
 Ld. Londesborongh's case, 4 De Gex, li. & G. 411 ; and Ld. Londesborough v. 
 Foster, 3 B, & S. 80:i. 
 
CHAP. XIV.] ADMISSIONS WHEN NOT CONCLUSIVE. 685 
 
 addition to .other evidence of Ms acquiescence in their title, it 
 appeared that, after the issuing of the commission, he had given 
 notice to the lessors of a farm which he held, that he had 
 become bankrupt, and was willing to give up the lease, where- 
 upon the lessors accepted the lease, and took possession of the 
 premises. The question, therefore, was, whether he was pre- 
 cluded by this surrender from disputing the commission in the 
 present suit. , 
 
 § 818. On this point the language of the learned judge was as § 742 
 follows : — " There is no doubt but that the express admissions of 
 a party to the suit, or admissions impKed from his conduct, are 
 evidence, and strong evidence, against him ; but we think that he 
 is at liberty to prove that such admissions were mistaken or were 
 untrue, and is not estopped or concluded by them, unless another 
 person has been induced by them to alter his condition ; in such 
 a case the party is estopped from disputing their truth with 
 respect to that person (and those claiming under him), and that 
 transaction; but as to third persons he is not bound. It is a 
 well established rule of law, that estoppels bind only parties and 
 privies, not strangers.^ The offer of surrender made in this case 
 was to a stranger to this suit ; and though the bankrupt may have 
 been bound by his representation that he was a bankrupt, and his 
 acting as such, as between him and the stranger to whom that 
 representation was made, and who acted upon it, he is not bound 
 as between him and the defendants, who did not act on the faith 
 of that representation at all. The bankrupt would probably not 
 have been permitted, as against his landlords, — whom he had 
 induced to accept the lease without a formal surrender in writing, 
 and to take possession, upon the supposition that he was a bank- 
 rupt, and entitled under 6 G. 4, c. 16, § 75, to give it up, — to 
 say afterwards that he was not a bankrupt, and bring an action of 
 trover for the lease, or an ejectment for the estate. To that 
 extent he would have been bound, probably no further, and 
 certainly not as to any other persons than those landlords. This 
 appears to us to be the rule of law, and we are of opinion that 
 
 1 Co. Lit. .352 a ; Com. Dig. Estop. C. 
 
686 ADMISSIONS WHEN NOT CONCLUSIVE. [PART 11. 
 
 the bankrupt was not by law, ])y his notjce and offer to surrepd^^, 
 estopped; and indeed it would be a great hardship if he were 
 precluded by such an act. It is admitted that his surrender to his 
 commissioners is no estoppel, because it would be very perilous to 
 a bankrupt to dispute the commission, and to try its validity by 
 refusing to surrender.^ A similar observation, though not to the 
 same extent, applies to this act ; for whilst his comijiission dis- 
 ables him from carrying on his business, and deprives him f^r 
 the present of the means of occupying his farm with advantage, 
 it would be a great loss to the bankrupt to continue tenant; 
 paying a rent and remaining liable to the covenants of the lease, 
 and deriving no adequate benefit ; and it cannot be expected that 
 he should incur such a loss, in order to be enabled to dispute his 
 commission with effect. Jt i^ reasonable that he should ^o the 
 best l^or himself in the unfortunate situation in whicji he is 
 placed." 
 
 § 81^. The doctrine propounde(| in Heane v. Eogers,^ th^t a § 743 
 party is always at liberty to prove ^l^at Jiis admissions were 
 founded on mistake, unless his opponent has been induced by 
 them to alter his con4ition, is as applicable to mistakes in respect 
 of legal liability, as to those in respect of matters of fact.^ In 
 all cases, therefore, of this nature, the jury, with the view of esti- 
 mating the effect due to an admission, vnll be justified in consider- 
 ing the circumstances under which it was made ; and if it should 
 appear to have been made under an erroneous notion of legal 
 liability, they may qualify its effect accordingly.* 
 
 § 820. In a former part of this work, we have treated of estoppels § Y44 
 by deed, alluded to those by record, and discussed that particular 
 class of estoppels in pais, which relates to the rights of landlord 
 ^nd tenant ; ^ and in the present chapter it has already been shown 
 that admissions solemnly made in the course of judicial proceed- 
 
 > See Ylo-wer v. Herbert, 2 Ves. Sen. .326. 
 2 9 B. & C. 577. 
 
 ' Newton v. Liddiard, 12 Q. B. 927, per Ld. Denman. 
 * Newton v. Belcher, 1 Q. B. 921 ; and Newton v. Liddiard, 12 Q. B. 925. 
 '5 Ante, §§ 89—103. 
 
CHAP. Xrv.] ADMISSipNS IN PIjBADING. 687 
 
 ings, whether as a sjibstitute for regular proof, or in a case 
 stated for the opinion of the court, are, on motives of policy and 
 justice, deeped to be conclusive.^ It reniains, then, only to ex- 
 amine the law as it regards other conclusive admissions ; and these 
 will, in general, be found to range themselves under one or other of 
 the following heads. First, admissions expressly or tacitly made 
 by pleadings ; secondly, admissions which have been acted, upon by 
 others. To these may be added a few cases of fraud and illegality, 
 and some admissions on oath, where the party is estopped on 
 grounds of public policy. 
 
 § 821. With respect to admissions by pleading, it was at one § '745 
 time thought that a party might, by bringing an action on a 
 contract, estop himself from denying the obligatory force of the 
 agreement in a subsequent action against himself. In conformity 
 with this view of the law, a strong opinion was expressed by Chief 
 Justice Tindal, in the case of the Fishmongers' Company v. 
 Kobertson,^ that if a corporation were to enter into an executory 
 contract, which was invalid against themselves for not being under 
 seal, and were then to sue thereon, this would amount to an ad- 
 mission on record, that such contract was duly entered' into on 
 their part, so as to be obligatory on them ; and such admission 
 would estop them in' a cross action, from setting up an objection 
 that it was not sealed by their common seal. The doctrine, thus 
 propounded, has on several occasions been brought under the 
 notice of the courts; but although it is unquestionably based 
 on substantial justice, it has hitherto met with little favour, and 
 will probably ere long be expressly overruled.^ The law, as at 
 present understood, seems to be, that the statements which are 
 contained in any pleading, though binding on the party making 
 them for all pui-poses in the cause, ought not to be regarded 
 in any subsequent action as admissions of the truth of the facts 
 stated.* 
 
 1 Ante, §§ V72, 783. "- 5 M. & Gr. 192, 193. 
 
 ' See Copper Miners' Co. v. Fox, 16 Q. B. 229 ; Boileau v. Kutlin, 2 Ex. E. 
 681, per Parke, B. ; Buckmaster v. Meiklejohn, 8 Ex. K. 637, per id.; The 
 May. of Kidderminster v. Hardwicke, 43 L. J., Ex. 9 ; 9 Law Rep., Ex. 13, 
 S. C. ' Cases cited in last note. 
 
688 ADMISSIONS IN PLEADING. [PAET II. 
 
 § 822. Still less will any admission, which has been incidentally § 746 
 or tacitly made in pleading in one suit, estop th6 party who has 
 made it from denying in another suit, where precisely the same 
 matter is not litigated, the fact so admitted. For instance, where a 
 plea to an action on a bond set out a corrupt agreement between the 
 parties irrespective of the bond, and then went on to aver that the 
 bond was given to secure, among other moneys, the sum mentioned 
 in the said agreement ; and the replication, tacitly admitting the 
 corrupt agreement, traversed the fact of the bond having been given 
 in consideration thereof, but the plaintiff failed on this issue ; it 
 was held, that the admission was available for the purpose of that 
 suit only ; and, consequently, the plaintiff was at liberty to dispute 
 the corrupt nature of the agi-eement, in a subsequent action on a 
 deed, which was signed by the defendant at the same time with the 
 bond by way of collateral security.^ 
 
 § 823. Although, as a general rule, an admission made in one § 747 
 suit by pleading or omitting to plead, cannot conclusively bind the 
 party in any subsequent suit, an exception to this rule must be 
 recognized, where the second action is brought on a judgment re- 
 covered in the first. For example, if an executor or administrator 
 confess judgment, or suffer it to go against him by default, he 
 thereby admits assets in his hands, and is estopped to say the con- 
 trary in an action on such judgment, suggesting a devastavit.^ 
 Some proof must indeed be given that the assets have been wasted, 
 in order to charge the executor or administrator personally in such 
 a case ; but the slightest evidence will suffice for this purpose ; and 
 the mere issuing of a writ of fieri facias, directed to the county 
 where the action was laid, and a return of nulla bona thereto, has, 
 for a long time past, been deemed evidence enough.^ So, where, to 
 an action against three executors, two had pleaded plene adminis- 
 
 ' Carter v. James, 13 M. & W. 137. See Rigge r. Burbidge, 15 M. & W. 
 598 ; 4 Dowl. & L. 1, S. C. ; and Hutt v. Morrell, 3 Ex. E. 241, per Pollock, 
 C. B. 
 
 2 Skelton v. Hawling, 1 Wils. 258 ; Re Trustee Relief Act, Higgins' Trusts, 
 2 Giff. 562. 
 
 3 Leonard v. Simpson, 2 Bing. X. C. 176, 180, per Tindal, C. J. ; 2 Scott, 
 335, S. 0. 
 
OHAP. XIV.] ADMISSIONS IN PLEADING. 689 
 
 traverunt, and the third had admitted assets to the amount of 383i!., 
 the court held, that, in a subsequent action against the third 
 executor, suggesting a devastavit, the plaintiff was entitled to re- 
 cover, on proof that the 383Z. had been deposited with bankers to 
 the credit of the executorship account, and that the defendant, after 
 judgment in the former action, had given the plaintiff a cheque for 
 the amount, which was dishonoured, as not being signed by the co- 
 executors.^ 
 
 § 824. The questions which usually arise with respect to admis- § 748 
 sions in pleading relate to their effect in the same suit ; and here it 
 may be laid down broadly, that " every allegation of fact in any 
 pleading in an action, not being a petition or summons, if not denied 
 specifically or by necessary implication, or stated to be not admitted 
 in the pleading of the opposite party, shall be taken to he admitted,, 
 except as against an infant, lunatic, or person of unsound mind not 
 so found by inquisition."^ The proper understanding of this rule 
 is the province of the pleader : ^ and in works on pleading a detailed 
 explanation of its effects must be sought. It may, however, be here 
 pointed out that the rule operates only with respect to material 
 allegations. A demurrer, therefore, admits no more than is well 
 pleaded, and then only such facts as are specified in the paragraphs 
 demurred to.* And, if a statement of defence denies a particular 
 fact alleged in the statement of claim, it does not thereby admit all 
 the immaterial averments, which the pleader has chosen to intro- 
 duce as part of the plaintiff's case.^ 
 
 § 825. Thus, where a declaration in assumpsit, — after stating i 749 
 that the defendants were owners of a vessel, on which the plaintiff 
 caused to be shipped some potatoes to be carried by them, as owners 
 
 > Cooper V. Taylor, 6 M. & Gr. 989. 
 
 ^ Rules of the Supreme Court, Ord. xix., E. 17. • 
 
 3 Van Sandau v. Turner, 6 Q. B. 785, per Ld. Deninan. 
 
 * "Watson V. Hawkins, 24 W. E., C. P. D. 884 ; Rules of Sup. Ct., Ord. 
 xxviii., RR. 1 & 4. 
 
 5 Bingham v. Stanley, 2 Q. B. 127 ; Bennion v. Davison, 3 M. & W. 179 • 
 Dunford v. Trattles, 12 M. & W. 534, per Parke, B. ; King v. Norman 4 
 Com. B. 884. 
 
 T T 
 
690 ADMISSIONS IN PLEADING. [PAET II. 
 
 of the vessel, to Liverpool ; in consideration whereof, and of freight, 
 they promised to carry the potatoes safely as aforesaid, — alleged as 
 a breach, that through their negUgence the goods were damaged : 
 it was held, that the general issue did not admit that the defendants 
 were owners, so as to raise the inference that the captain was their 
 agent, the allegation of ownership being regarded as immaterial. 
 The declaration ia this case would have been equally good had no 
 such allegation been made ; since the statement, that, in considera- 
 tion of the plaintiff having shipped the goods, and of the freight, 
 the defendants promised to carry them safely, would have been 
 quite sufficient, when coupled with an averment that the goods were 
 not safely carried, to have made a complete case of liability against 
 the defendants.-^ 
 
 § 826. Next, the omitting to traverse a material allegation so § 753 
 far admits it, that the pa/rty tvho thus pleads over cannot disprove it. 
 This accords with the old law, and therefore, where, in trover for 
 bales of silk, the defendant pleaded that A. was factor of the 
 plaintiffs, and as such, before and at the time of the pledge men- 
 tioned in the plea, was intrusted by them with, and was in possession 
 of, dock-warrants relating to the bales ; that he delivered the dock- 
 warrants to the defendant, and pledged with him the bales, as 
 security for a loan which the defendant then advanced to biTin on 
 the faith of the said dock- warrants ; and that the defendant had no 
 notice that the factor was not the actual owner ; it was held that 
 the plaintiffs, by simply traversing the allegation that the defendant 
 advanced the money on the faith of the dock-warrants, were de- 
 barred from proving that the dock-warrants were not deposited at 
 the time of the advance, and were not, in fact, then in existence.^ 
 
 § 827. Under Order XL., Rule 11, of the Eules of the Supreme 
 Court, " any party to an action may, at any stage thereof, apply to 
 the court or a judge for such order as he may, upon any admissions 
 
 1 Bennion v. Davison, 3 M. & W. 179, 182, 183, per Parke, B. ; recognised 
 by Aklerson, B., in Dunford v. Trattles, 12 M. & W. 532. See, also. Grew v. 
 HiU, 3 Ex. E. 801 ; 6 Dowl. & L. 664, S. C. 
 
 = Bonzi V. Stewart, 4 M. & Gr. 295. See, also. Carter v. James, 13 M. & W. 
 145, 146, text and note. 
 
CHAP. XrV.] ADMISSIONS BY DEMURKING. 691 
 
 of fact in the pleadings, be entitled to, without waiting for the de- 
 termination of any other question between the parties." In accord- 
 ance with this rule the Lords Justices have held, that where, in a 
 partition action the defendants had by their statement of defence 
 admitted the facts stated in the claim showing the plaintiffs' title, 
 the plaintiffs had a right, — instead of having the action set down 
 for hearing, — ^to an order on motion, directing the usual inquiries as 
 to the persons interested in the property.^ So, in an action between 
 partners,^ and in one between principal and agent,^ an order for an 
 account and for the delivery of securities has been made on motion 
 before the hearing, the judge acting solely on the admissions con- 
 tained in the pleadings.* But in cases under this rule, as the judge 
 has a discretion whether he will grant reUef on motion or not, he 
 will seldom be induced to take that step when any question of diffi- 
 culty is raised ; neither will the Court of Appeal, except in a clear 
 case of error, interfere with the exercise of the judge's discretion.^ 
 
 § 828. Under the old rules of pleading a demurrer used to be 
 regarded by Courts of Equity as simply raising the question of law 
 without any admission of the truth of the allegations contained in 
 the bill ; but the present law is widely different ; and although a 
 party, desiring to demur to part of his opponent's pleading and to 
 traverse the other part, may combine such demurrer and traverse in 
 one pleading,^ and may even, by leave of the court or a judge, plead 
 and demur to the same subject matter, either at the same time, or 
 consecutively, as may appear to be most convenient or just,'^ — yet a 
 
 1 GUbert v. Smitli, L. R., 2 Ch. D. 686 ; 45 L. J., Oh. 514, S. C. 
 
 2 Tuiquand v. WUson, L. E. 1 Ch. D. 85 ; 45 L. J., Ch. 104, S. C. 
 
 3 Eiunsey v. Eeade, L. E., 1 Ch. D. 463 ; 45 L. J., Ch. 489. 
 
 ^ See, also, Jenkins v. Davies, L. E., 1 Ch. D. 696 ; In re Smith's estate, 
 Briclson v. Smith, 24 W. E., Ch. D. 392, per HaU, V.-C. 
 
 ' MeUor v. Sidebottom, 46 L. J., Ch. 398 ; L. E., 5 Ch. D. 342, S. C. 
 
 " Eules of Sup. Ct., Ord. xxviii., E. 4. 
 
 ' Ord. xxviii., E. 5, provides, that " If the jjarty demurring desires to he at 
 liberty to plead as well as demur to the matter demurred to, he may, before 
 demurring, apply to the court or a jiidge, for an order giving liitn leave to do 
 so ; and the cotirt or judge, if satisfied that there is reasonable ground for the 
 demurrer, may make an order accordingly, or may reserve leave to him to 
 plead after the demurrer is overruled, or may make such other order and upon 
 such terms as may be just." 
 
 T Tf 2 
 
692 ADMISSIONS IN PLEADING UNDER NEW BULBS. [PAET U. 
 
 demurrer standing alone has been held to amount to an absolute 
 admission of the facts stated in the paragraphs demurred to, A 
 striking instance of the effect i^roduced by this rule was afforded by 
 the recent case of The Metropolitan Eailway Company v. Defries 
 and others.^ There the claim stated, that, by an agreement for the 
 purchase by the plaintiffs of some property belonging to the de- 
 fendants, the purchase was to be completed in September, 1869, 
 from which date the plaintiffs were to receive the rents, and to pay 
 interest on the purchase money. It then alleged, that the purchase 
 was not in fact completed till March, 1876, that the plaintiffs had 
 paid the interest, and that the defendants had remained in pos- 
 session, paying no rent. Lastly, it made a claim of rent for use 
 and occupation at the rate of ^6150 per annum, as being a fair value. 
 To this claim the defendants demurred, on the ground that they 
 had received no rents, and that, the relation of landlord and tenant 
 did not exist between the plaintiffs and themselves. The court, 
 however, overruled the demurrer, and held, not only that the de- 
 fendants were liable to pay a fair rent during the time they remained 
 in possession, but further that, by demurring, they had admitted 
 that £150 a year was a fair rent. Well might one of the judges in 
 that case arrive at the manifest conclusion, that "it is not advisable, 
 since the Judicature Acts came into operation, to demur." ^ Such 
 being the effect of demurring in reference to the actual suit, it 
 appears to follow that, in any future action between the same 
 parties, a demurrer to a claim may now be received in evidence, as 
 amounting to an admission of the facts charged therein.^ 
 
 § 829. The Eules of the Supreme Court further provide, by 
 Order XXIX., Eule 12, that "if the plaintiff does not dehver a 
 reply or demurrer, or any party does not deliver any subsequent 
 pleading, or a demurrer, within the period allowed for that purpose, 
 the pleadings shall be deemed to be closed at the expiration of that 
 period, and the statements of facts in the pleading last delivered 
 shall be deemed to he admitted." 
 
 ' L. R, 2 Q. B. D. 387, per Ct. of App. 
 
 - Id., 389, per Brett, L. J. 
 
 3 See Tomkins v. Asliby, M. & M. 32, per Abbott, C. J 
 
CHAP. XiV.] ADMISSION Bt PAtlNG MONEY INTO COUflT. 69:j 
 
 § 880. Irrespective of the new Rules of pleading, the Legislatura 
 has,, in one somewhat remarkable case, provided, that the omission 
 to plead a special defence shall operate as a conclusive presumption 
 of liability. Allusion is here made to the Married Woman's Pro- 
 perty Act, 1874,^ vifhich, — after enacting, with respect to marriages 
 that have taken place since the SOtli July in that year, that 
 husbands and wives may be jointly sued for debts incurred or torts 
 committed by the wife before marriage, but that the husband shall 
 be liable to the extent only of the assets therein specified," — goes 
 on to provide, that, if no plea denying liabihty be pleaded, " the 
 husband shall be deemed to have confessed his liability so far as 
 assets are concerned."^ 
 
 § 831. It remains here to notice, in connection with this subject, § 7eo 
 the effect oi paying money into court, and of tendering compensation . 
 Payment of money into court, — which, (except in actions brought 
 against magistrates,* and, perhaps, in one or two other suits, ^) 
 must, unless made before delivering a defence,^ now be pleaded in 
 all cases, but may be pleaded either to the whole or to part only of 
 the plaintiff's claim, — may be made, as of course, in any action 
 which is brought to recover a debt or damages.'^ Amends may also 
 be paid into court in some special actions under the provisions of 
 particular statutes. For instance, in an action for a libel contained 
 
 ' 37 & 38 v., c. 50. 
 
 2 §§ 1, 2, and 5. ' § 2. 
 
 ■• 11 & 12 v., c. 44, § 11, cited ante, § 315, n. 4. 
 
 ' See ante, § 315, ad fin. 
 
 ' Rules of Sup. Ct., Ord. xxx., E. 2, which points out the course of pro- 
 ceeding in that case. 
 
 ' R. 1 of the same Order provides, that " Wlaere an action is brought to 
 recover a debt or damages, any defendant maj' at any time after service of the 
 writ, and before or at the time of delivering his defence, or by leave of the 
 court or a judge at any later time, pay into court a sum of money by way of 
 satisfaction or amends. Payment into court sliall be pleaded in the defence, 
 and the claim or cause of action in respect of which such payment shall be 
 made, shall be specified therein." R. 3 explains how the money is to be paid 
 out of court, while R. 4, — ^by imposing upon the plaintiif the necessity of 
 giving the defendant a 'special notice, — exposes him to the risk of gross in- 
 justice being done to him in the event of his neglecting to comply with that 
 Rule. See Langridge v. Qampbell, L, E., 2 Ex. D. 281 ; 46 L. J., Ex. 277, 
 
 s. c. ■ 
 
694 ADMISSION BY PAYING MONEY INTO COURT. [PAET II. 
 
 in any public newspaper or other periodical publication, the de- 
 fendant may plead that the libel was inserted without actual malice, 
 and without gross negligence, and that at the earliest opportunity > 
 he had published, or, in some cases, had offered to publish, an 
 ample apology. This statutable plea must then terminate with an 
 allegation of the payment of money into court by way of amends, 
 for otherwise the plaintiff may treat it as a mere nullity ;^ and as 
 the plea, provided it be proved,^ is regarded as an admission, not 
 only of the cause of action, but of liability in damages to the extent 
 of the sum paid into court, it cannot be pleaded along with any 
 substantial defence to the same part of the statement of claim.'^ 
 Many other statutes authorise pleas of payment of money into court, 
 when actions are brought against persons for acts done by them, 
 either in [execution of their offices, or in pursuance or under the 
 authority of Acts of Parliament ;* and among these may be men- 
 tioned the Act passed in 1848 for the protection of justices,^ the 
 Acts of 1861, which consolidate the law relating to larceny, malicious 
 injuries, and coin,* and the Seamen's Clothing Act, 1869.'^ 
 
 § 832. The salutary effect of these regulations has been much § 761 
 impaired by allowing payment of money into court to be regarded 
 in some cases as an admission of the cause of action. It is very 
 true that in actions on contract, when money is paid into court 
 upon the general indebitatus counts, the payment amounts only to 
 an admission that the defendant is liable, in respect of some one 
 or more contracts or causes of action stated in the general counts, 
 to the extent of the sum so paid in ; and the plaintiff cannot apply 
 that admission to any particular contract he may please to select, 
 any more than the defendant.^ If, therefore, the plaintiff seeks to 
 
 1 6 & 7 v., c. 96, § 2, and 8 & 9 V., o. 75, § 2, as to Engl. ; and 8 & 9 V., 
 c. 75, §§ 1 & 2, as to Irel. 
 
 2 Jones V. Mackie, 3 Law Eep., Ex. 1 ; 37 L. J., Ex. 1, S. C. 
 
 3 O'Brien v. Clement, 15 M. & W. 435. ■• See ante, §§ 311—315. 
 » 11 & 12 v., 0. 44, § 11, cited ante, § 315, n. 4. 
 
 « 24 & 25 v., c. 96, § 113 ; c. 97, § 71 ; c. 99, § 33. 
 ? 32 & 33 v., c. 57, § 6. 
 
 8 Archer v. English, 1 M. & Gr. 876, per Tindal, C. J. ; Kingham v. Robins, 
 5 M. & W. 94, 102, per Alderson, B. ; Stapleton v. Nowell, 6 M, & W. 9, 11, 
 
CHAP. XIV.] ADMISSION BY PAYING MONEY INTO COURT. 695 
 
 recoYer any damages or debt beyond the sum paid into court, he 
 must prove not only that a larger sum was due, but also the 
 existence of the contract on which he relies,^ as well as his separate 
 right to sue on that contract ; ^ and if the action be brought against 
 two or more defendants, he must further show their joint liability.^ 
 Much less can the joint payment of money into court by two de- 
 fendants under the indebitatus counts be treated as an acknowledg- 
 ment of their partnership, as alleged in a special count.* 
 
 § 833. If, however, the plaintiff declares upon a special contract, § 762 
 and the defendant meets the special count by paying money into 
 court, such money will still be regarded as a conclusive acknow- 
 ledgment of the contract set forth in the statement of claim.^ The 
 technical reason on which this rule rests is, that as the plea, 
 which necessarily accompanies the payment, states distinctly that 
 the sum brought into court " is enough to satisfy the claim of the 
 plaintiff in respect of the matter herein pleaded to,"^ the payment 
 must be considered in the light of an admission that something is 
 due from the defendant to the plaintiff, and, consequently, it must 
 at the same time admit that the contract was made, by which 
 alone anything can be due.'' The defendant, therefore, who has 
 
 per id. ; Perren v. Monmouth Ry. Co., 11 Com. B. 862, per Jervis, C. J. ; 
 Seatoix V. Benedict, 5 Bing. 28 ; Steavenaon v. Corp. of Berwick, 1 Q. B. 154 ; 
 
 4 P. & D. 546, S. C. ; Elgar v. Watson, C. & Marsh. 494. 
 
 1 Archer v. English, 1 M. & Gr. 876, per Tindal, C. J. ; Kingham v. Robins, 
 
 5 M. & W. 99 — 101, per Parke, B., overruling dicta thrown out hy himself 
 and Littledale, J., in Meager v. Smith, 4 B. & Ad. 673 ; 1 N. & M. 449, S. C. 
 See, also, Goff v. Harris, 5 M. & Gr. 577, per Erskine, J. 
 
 - Kingham v. Robins, 5 M. & W. 100, per Parke, B. ; 7 Dowl. 352, S. C. ; 
 overruUng Walker v. Rawson, 1 M. & Rob. 250, per Tindal, C. J. 
 
 ^ Archer v. English, 1 M. & Gr. 873 ; 2 Scott, N. R. 156, S. C, and also 
 9 Dowl. 21, S. C, nom. Archer v. Walker ; Stapleton v. NoweU, 6 M. & W. 9 ; 
 8 Dowl. 196, S. C, overruling Ravenscroft v. Wise, 1 C. M. & R. 203 ; 2 Dowl. 
 676 ; 5 Tyr. 741, S. C. 
 
 * Charles v. Branker, 12 M. & W. 743, confirming Kingham v. Robins, and 
 Stapleton v. Nowell. 
 
 '^ Kingham v. Robins, 5 M. & W. 99, per Parke, B. ; Archer v. English, 1 
 M. & Gr. 876, 878 ; Lyster v. Odium, 1 Ir. Law R., N. S. 52. 
 
 6 See form given in 15 & 16 V., c. 76, § 71. 
 
 ' Stapleton «. Newell, 6 M. & W. 11, per Alderson, B. ; PeiTsn v. Monmouth. 
 
696 ADMISSION BY PAtING MONEY INTO COURT. [PART II. 
 
 SO pleaded, cannot object to the jurisdiction of the court,^ or set 
 np the non-performance by the plaintiff of a condition precedent,^ 
 or urge that the action has been brought too soon,^ or deny the 
 plaintiff's claim to the chcaracter in which he sues,* or contend that 
 the agreement is not in %Yriting, and signed in accordance with the 
 Statute of Frauds,' or rely on the insuificiency of the stamp,'' or 
 insist on the plaintiff producing the attesting witness,'' or plead 
 other pleas denying or justifying the same cause of action,^ unless 
 he be permitted to do so by some particular statute, or give 
 evidence, in mitigation of damages, of facts which would bar 
 the plaintiff's recovery;" as, for instance, if the action be brought 
 for discharging the plaintiff from service, the defendant, vvho has 
 paid money into court, cannot, in mitigation of damages, justify 
 the discharge on the ground of the plaintiff's misconduct.^" 
 
 § 834. In applying the above rules to particular cases, strict § 763 
 attention must be paid to the two following points. First, pay- 
 ment of money into court admits the special contract set out in the 
 statement of claim, only to that extent to which the 2^1'^inti^ is 
 bound to prove it ; for it would be obviously unjust if the admission 
 were to tie the defendant when the plaintiff would be loose. For 
 instance, in Cooper v. Blick,''-' the plaintiff declared upon a contract 
 by the defendants to employ him, to Avit, in the capacity of editor 
 of a newspaper, at a certain salary, to wit, at the rate of 400L per 
 
 Ry. Co,, 11 Com. B. 863, per Jervis, C. J. See Thompson r. Jackson, 1 M. 
 & Gr. 244, per Tindal, C. J. 
 
 1 Miller v. Williams, 5 Esp. 22, per Ld. EUenborougli. 
 
 2 Harrison v. Douglas, 3 A. & E. 396, 402. a Id. 403. 
 
 * Lipscombe v. Holmes, 2 Camp. 442, per Ld. Ellenborough ; see, also, 
 Wright V. Goddard, 8 A. & E. 144, 148, 1.50. But see Tronson v. Dent, 8 Moo. 
 P. C. R. 433. 
 
 * Middleton v. Brev/er, Pea. R. 15, per Ld. Ivenyon. 
 
 « Israel v. Benjamin, 3 Camp. 40, per Ld. Ellenborough, confirmed after- 
 wards by the full court. 
 
 ' Randall v. Lynch, 2 Caiii]i. 357, per Ld. Ellenborough. 
 
 8 Thompson v. Jackson, 1 M. & Gr. 242 ; Gales v. Ld. Holland, 7 E. & B. 
 336. See O'Brien v. Clement, 15 M. & W. 435, cited ante, § 831. 
 
 " Robinson v. Harman, 1 Ex. R. 850. 
 
 '» Speck V. Phillips, 5 M. & W. 279 ; 7 Dowl. 470, S. C. 
 
 » 2 Q. B. 915 ; 2 G. & D. 29.-|, !^. C, 
 
CHAf. XIV.] ADMISSION BY PAYING MONEY INTO COtJET. 697 
 
 annum. The defendants paid money into court, and by so doing 
 were held to have admitted the capacity in which the plaintiff had 
 engaged to serve them, but not the amount of salary which they 
 had agreed to pay him. Both averments were laid under vide- 
 licets ; but the court, — applying the true test, namely, what must 
 the plaintiff have proved, had non assumpsit been pleaded, — decided 
 that the former averment was material, and the latter immaterial. 
 In discussing the effect of the videlicet, Mr. Justice Patteson 
 observed, that it could not make that immaterial, which was in its 
 nature material, though its omission might render that material 
 which should otherwise not be so ; and he illustrated these pro- 
 positions by pointing out, that a videlicet could not make the 
 sum in a bill of exchange immaterial, because that was matter of 
 description, but its omission in the declaration before him would 
 have bound the plaintiff to the precise rate of salary stated, and 
 the admission of the defendants by payment into court would then 
 have bound them, in the same manner.^ 
 
 § 835. The other point deserving attention is perhaps only § :e4 
 another mode of stating the proposition just adverted to. It is 
 this I — that although payment into court admits the entire coU' 
 tract declared on, as also the specific breach in respect of which 
 the payment is made, it does not admit any damages on that 
 breach beyond the sum paid in, still less does it admit any other 
 breach to which the payment does not apply. Thus, payment of 
 money into court upon a count on a valued policy of insurance, 
 which states a total loss by capture, admits the contract and the 
 capture, but not the total loss, and the plaintiff, therefore, must 
 still prove that he has suffered damage from the capture beyond 
 the sum paid.^ So, where the declaration, after stating that the 
 defendant and another were indebted to the plaintiff in a certain 
 sum, to wit, 2501., but that the debt was barred by the Statute of 
 Limitations, averred that the defendant afterwards, and within 
 
 1 2 Q. B. 918, 924. See Guard, of Bantiuy Union v. Eobinson, 4 Q. B. 
 919 ; Nash v. Brown, 6 Com. B. 584 ; 6 Dowl. & L. 329, S. C. ; Whitaker v. 
 Harrold, 11 Q. B. 171, 172 ; and Harris v. PMllips, 10 Com. B. 650. 
 
 ' Euoker v. Palsgrave, 1 Camp. 557, per Sir J, Mansfield ; 1 Taunt, 419, 
 S. C. i Everth v. Bell, 7 Taunt, 450. 
 
698 PAYINa MONEY INTO COURT IN TOET. [PAKT II. 
 
 six years from the commencement of the suit, signed a written 
 promise to pay his proportion of the deht, which proportion 
 amounted to a certain sum, to wit, a moiety of the debt, and then 
 assigned non-payment as a breach, it was held that the defendant, 
 by paying 10s. into court, admitted the contract and breach, but 
 disputed the amount due.i Again, although payment into court 
 in an action upon a bill or a promissory note admits the instru- 
 ment, and also, prima facie, admits the precise sum to be due 
 upon it,^ yet, if the instrument be payable by instalments, such 
 payment admits only that the sum paid was due upon the bill 
 or note, and does not preclude the defendant from pleading the 
 Statute of Limitations as to any further sum : '^ nor, in short, is 
 the defendant, by so paying, debarred from taking any other objec- 
 tion, in order to limit the operation of the contract declared on, and 
 to preyent the plaintiff from recoYering more than the actual 
 amount paid.* 
 
 § 836. In actions on tort, the effect of payment of money into § TC3 
 court has varied from time to time in a manner, and to an extent, 
 that is little creditable to our superior courts of justice. Formerly, 
 it was supposed by the profession that by such payment the 
 defendant admitted the cause of action sued for.^ A contrary 
 opinion next prevailed ; ® and this was followed by a state of 
 things during the existence of which no lawyer could predicate 
 what the next decision of the judges would be. The Court of 
 Queen's Bench ruled one way,'' the Court of Common Pleas ruled 
 another ; ^ and the learned barons of the Exchequer, in then* 
 anxiety to be right, ruled both ways.® At last, in 1852, Chief 
 
 1 Lechmere v. Fletcher, 1 C. & M. 623, 627, per Bavley, J. ; 3 Tyr. 450, 
 S. 0. 
 
 2 TattersiaU v. Parkinson, 16 M. & W. 752, 760. 
 
 ' Eeid V. Dickons, 5 B. & Ad. 499 ; recognised hj Patteson, J., in Shearwood 
 V. Hay, 5 A. & E. 390. " Cox v. Parry, 1 T. E. 464. 
 
 ^ Perren v. Monmoutli. Ry. Co., 11 Com. B. 863, per Jervis, C. J. 
 
 " Id., per id. 7 Leyland v. Tancred, 16 Q. B. 664. 
 
 ^ Sckreger v. Carden, 11 Com. B. 851. 
 
 " Stoiyu. Finnis, 6 Ex. R. 123 ; 2 L.M. & P. 198, S. C; Knigit v. Egerton, 
 7 Ex. E. 407,409. In Perren v. Monmouth. Ey. Co., 11 Com. B. 681, Jervis, 
 C. J., thus expressed himself: — "The question is, how does payment into 
 
CHAP. XIV.] ADMISSION BY PLEA OP TBNDBB. 699 
 
 Justice Jervis undertook the task of reconciling these irrecon- 
 cilable decisions, and in an elaborate judgment he laid down the 
 law as follows : — " Upon a review of the authorities, we think 
 that where, in an action of tort, the declaration is general and 
 unspecific, the payment of money into Court, although it admits a 
 cause of action, does not admit the cause of action sued for ; and 
 that the plaintiff must give evidence of the cause of action sued 
 for, before he can have larger damages than the amount paid into 
 court. On the other hand, if the declaration is specific, so that 
 nothing would be due to the plaintiff from the defendant, unless 
 the defendant admitted the particular claim made by the declara- 
 tion, we think that the payment of money into court admits the 
 cause of action sued for, and so stated in the declaration. If 
 the breach is single, and the damages entire, then, of course, it 
 becomes, under such circumstances, a mere question of damages ; 
 but if the damages may be compounded of several things, — for 
 instance, as in the case of Story v. Finnis, of the number and 
 value of the goods taken, — then, although the payment of money 
 into court may, from the form of declaration, admit the particular 
 cause of action sued for, still it may be necessary to prove the 
 cause of action with a view to the damages ; because, although 
 the defendant would thus admit that he broke a particular pound, 
 he would not admit that, as the result of that particular breaking, 
 he rescued all the goods in respect of which damages were 
 claimed."^ 
 
 § 837. The rules stated above as governing the effect by way of § "706 
 admission which is produced by paying money into court, apply 
 equally to the plea of tender,^ and it is therefore unnecessary to 
 repeat them here with particular reference to that plea. 
 
 court operate in an action on tort ; there is a case in the Exch. each, way, a 
 case in the Queen's Bench one way, and another in the Com. Pleas the other 
 way ; " and then with pardonable self-complacency he added, " hut this latter 
 is reconcilable upon the doctrine of identity." 
 
 1 Perren v. Monmouth. Ry. Co., 11 Com. B. 865, 866. 
 
 2 Edan v. Dudfield, 1 Q. B. 304, per Ld. Deninan ; Cox v. Brain, 3 Taunt. 
 95 ; Middleton v. Brewer, Pea. R. 15 ; Bulwer v. Home, 1 N. & M. 117 ; 
 Jewell V. Wyatt, 1 W. W. & H. 47 ; Willis v. Langridge, 2 Har. & W. 250 ; 
 
700 ADMISSIONS MADE BY MISTAKE, [PAET II. 
 
 § 838.^ When judicial admissions, — by which are meant admis- § 768 
 sions entered into in the due course of legal proceedings, — have 
 been made through inadvertence or mistake, the court, in its dis- 
 cretion, will relieve the party from the consequences of his error, 
 by ordering a repleader, or by permitting an amendment, or by 
 discharging the case stated, or the rule, or the agreement, if 
 made in court.^ Agreements, too, made out of court between 
 solicitors, concerning the course of proceedings in court, are, in 
 effect, equally under the court's control, by means of its coercive 
 power over the solicitor in all matters relating to professional 
 character and conduct. But, in all these cases, the party will be 
 held to his admission, unless it clearly appear that he has acted 
 through mistake.^ 
 
 § 839.* Every admission, Avhich has been made vdth the inten- { 7e9 
 tion of being acted upon, and which has been acted vjMn by 
 another person, is conclusive against the party making it, in all 
 cases between him and the individual whose conduct he has thus 
 influenced. It is of no importance, whether such admission be 
 made in express language to the person who acts upon it, or be 
 implied from the general conduct of the party making it ; for, in 
 the latter case, the implied declaration will be considered as 
 having been addressed to every one in particular, ^Aho may have 
 had occasion to act upon it : and the rule of law is clear, that, 
 where one by his words or conduct inlfully causes another to 
 
 Kobinson v. Ward, 8 Q. B, 920. See Scott v. UxbriJge & Rick. Ry. Co., H. & 
 R. 602, as to the effect of a tender " under protest." 
 ' Gr. Ev. § 206, nearly verbatim. 
 
 2 "Non fatetur, qui errat, nisi jus ignoravit.'' Dig. lib. 42, tit. 2 1.2. "Si 
 vero per erroreni fuerit facta ipsa confessio, (scil. ab advocate,) clienti con- 
 cessum est, errore probato, usque ad sententiam revoeare." 1 Masc. de Prob. 
 qujEst. 7, n. 63 ; id. n. 19, 20, 21, 22. ; id. concl. 348, per tot. 
 
 3 See Pearse v. Grove, 3 Atk. 523, per Ld. Hardwicke ; Amb. 65, S. C. The 
 Roman law was administered in the same spirit. " Si is, cum quo Lege 
 Aquilia agitur, confessus est servum occidisse, Meet non occiderit, si tamen 
 occisus sit homo, ex confesso tenetur." Dig. lib. 42, tit. 2, 1. 4 • id. 'l 6 See 
 also. Van Leeuw. Comm., B. V. ch. 21 ; Everh. Cone. 155, n.'s. "Confessus 
 pro judicato est." Dig. lib. 42, tit. 2, 1. 1. 
 
 * Gr. Ev. § 207, in part, 
 
CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHEES. 701 
 
 believe in the existence of a certain state of things, and induces 
 him to act on that belief, so as to alter his own previous position, 
 the former is concluded from averring against the latter a different 
 state of things as existing at the same time.^ Indeed, the prin- 
 ciple may be laid down still more broadly, as precluding any party, 
 who negligently or culpably stands by, and allows another to 
 contract on the faith and understanding of a fact which he can 
 contradict, from disputing that fact in an action against the person, 
 whom he has himself assisted in deceiving.^ In such case the 
 party is estopped, on the grounds of public policy and good faith, 
 from repudiating his own representations.^ 
 
 § 840. In the case of Freeman v. Cooke,^ Lord Wensleydale, § 770 
 
 while explaining this rule, pointedly observed: — "By the term 
 
 ' wilfully,' we must understand, if not that the party represents 
 
 that to be true which he knows to be untrue, at least that he 
 
 ft 
 means his representation to be acted upon, and that it is acted 
 
 upon accordingly ; and if, whatever a man's real intention may 
 be, he so conducts himself that a reasonable man would take the 
 representation to be true, and believe that it was meant that he 
 should act upon it, and did act upon it as true, the party making 
 the representation would be equally precluded from contesting its 
 truth ; ^ and conduct by negligence or omission, where there is a 
 duty cast upon a person by usage of trade or otherwise to disclose 
 the truth, may often have the same effect ; — as, for instance, a 
 retiring partner omitting to inform his customers of the fact, in 
 the usual mode, that the continuing partners were no longer autho- 
 rised to act as his agents, is bound by all contracts made by them 
 with third persons on the faith of their being so authorised." ^ 
 
 ' Per Ld. Denman, in Pickard v. Sears, 6 A. & E. 474 ; recognised by 
 Wood, V.-C, in Att.-Gen. v. Stephens, 1 Kay & J. 748, 749. 
 
 2 Per Ld. Denman, in Gregg v. Wells, 10 A. & B. 98 ; recognised by Paike, 
 B., in Harrison v. WrigM, 13 M. & W. 820. 
 
 3 See ante, § 89, et seq. * 2 Ex. R. 663 ; 6 Dowl. & L. 190, S. C. 
 
 * The rule, as here enunciated, was expressly adopted by the Court of Ex. 
 in Cornish v. Abington, 4 H. & N. 549. See, too, Sweeny v. Promoter Life 
 Ass. Co., 14 Ir. Law R., N. S. 476, 486—492 ; and Thomas v. Brown, L. R., 
 1 Q. B. D. 714 ; 45 L. J., Q. B. 811, S. C. 
 
 * In Howard v. Hudson, 2 E. & B. 1, Ld. CampbeU laid down a more 
 
702 ADMISSIONS ACTED UPON BY OTHERS. [PAET II. 
 
 § 841. Again, if a party, having a secret equity, chooses to § 771 
 stand by, and permit the apparent owner to deal with others as if 
 he were the absolute owner, he shall not be permitted to assert 
 such secret equity against a title founded on such apparent owner- 
 ship.^ Many decisions have been founded upon this principle, but 
 the case of the Duke of Beaufort v. Neald^ will sufficiently serve 
 to illustrate it. There, the Duke had signed, and put into the 
 hands of his agent, an authority to consent to any exchanges under 
 an Inclosure Act, but had directed him not to act upon this 
 authority excepting under ■ certain circumstances. The agent, in 
 breach of his private instructions, having produced the authority 
 and agreed to an exchange not under the stipulated circum- . 
 stances, the Duke repudiated the agreement, but the House of 
 Lords held that he was clearly bound thereby. The Courts have 
 also acted upon this doctrine on several occasions, where nego- 
 tiations have been entered into preparatory to marriage ; and the 
 abstract rule deducible from the authorities is, that, whenever a 
 representation^ of some fact, — as contradistinguished from a mere 
 representation of intention,^ — has been made by one party for the 
 
 restricted rule, observing : — " The party setting up such a har to the reception 
 of the truth must show, both that there was a mlful intent to make him act 
 on the faith of the representation, and that he did so act ;" and Crompton, J., 
 adds : — " The rule takes in all the important commercial cases in which a 
 representation is made, not wilfully in any bad sense of the word, not malo 
 anitno, but so far wilfully that the party making the representation on which 
 the other acts mecms it to be acted upon in that way. That is the true 
 criterion." See further on this subject, Foster v. Mentor Life Ass. Co., 3 
 E. & B. 48. 
 
 1 Mangles v. Dixon, 1 M. & Gord. 446, per Ld. Cottenham ; 1 Hall & T 
 550, S. C. See, also, Att.-Gen. v. Naylor, 33 L. J., Ch. 151, per Wood, V.-C. 
 Eamsden v. Dyson, 1 Law Eep., H. L. 129 ; Eolt v. White, 3 De Gex, J. & S, 
 360, 365, per Ld. Westbuiy. 
 
 2 12 CI. & Fin. 249. See Graham v. Birkenhead Ry. Co., 2 M. & Gord. 146 
 2 Hall & T. 450, S. C. ; Kent v. Jackson, 14 Beav. 384, per Romilly, M. R. 
 Trickett V. Tomlinson, 13 Com. B., N. S. 663 ; Pole v. Leask, 33 L. J., Ch, 
 155, per Dom. Proc. 
 
 ^ Ld. Cranworth is said to have held that the rule does not apply unless 
 there be misrepresentation. Sed qu. See Money v. Jorden, 15 Beav. 372, 387, 
 n. ; Pulsford v. Eichards, 17 Beav. 94, 95. 
 
 ■* Jorden v. Money, 5 H. of L. Cas. 185, per Ld. Cranworth, Ch., and Ld. 
 Brougham, in. Dom. Proc, Ld. St. Leonards diss., overruling a decision of 
 EomiUy,M. E., in Money v. Jorden, 15 Beav. 372. See Lofifus v. Maw, 3 Giff. 
 
CHAP. XrV.] ADMISSIONS ACTED UPON BY OTHERS. 703 
 
 purpose of influencing the conduct of another, and has been acted 
 upon by the latter, this y/Ul, in general, be sufficient to entitle him 
 to the assistance of the court for the purpose of realising such 
 representation.^ 
 
 § 842.^ The same rule is familiarly illustrated by the case of a § 772 
 man cohabiting with a woman, and treating her ia the face of the 
 world as his wife, when in fact he is not married to her. Here, 
 though he thereby acquires no rights against others, yet they may 
 against him ; and therefore, if the mistress be supplied with 
 goods during such cohabitation, and the reputed husband be 
 sued for them, he will not be permitted to disprove or deny the 
 marriage.^ So, if the lands of such woman be taken in execution 
 for her reputed husband's debt, as his own freehold in her right, 
 he will be estopped, by the relation de facto of husband and wife, 
 from saying that he held them as her servant.* Neither will a 
 woman, who has solemnly declared that she was married to a 
 particular man, and whose goods are thus admitted to belong to 
 her husband in her right, be allowed, on his bankruptcy, to deny 
 the marriage, and to lay claim to the goods as her sole property.* 
 
 592, 604, per Stuart, V.-O. ; and Coles v. Pilkington, 44 L. J., Ch. 381 ; 
 et qu. 
 
 1 Hammersley v. Baron de Biel, 12 CI. & Fin. 45, 62, n., per Ld. Cotten- 
 ham ; 88, per Ld. CamplDell ; Neville v. Wilkinson, 1 Br. C. C. 543 ; Monte- 
 fiori. V. Montefiori, 1 "W. Bl. 363 ; Bentley v. Maokay, 31 Beav. 155, per Eomilly, 
 M. E. ; Laver v. Fielder, 32 L. J., Ch. 365, per Eomilly, M. E. ; 32 Beav. 1, 
 S. C. ; Gale v. Lindo, 1 Vem. 475 ; Jorden v. Money, 5 H. of L. Cas. 185 ; 
 Money v. Jorden, 15 Beav. 372 ; Huttpn v. Eossiter, 7 De Gex, M. & G. 9 ; 
 Pulsford V. Eichards, 17 Beav. 87, 94, per Eomilly, M. E. ; Yeomams v. 
 Williams, 1 Law Eep., Eq. 184 ; Hodgson v. Hutchenson, 5 Vin. Abr. 522 ; 
 Cookes V. Masoall, 2 Vem. 200 ; Wankford v. Fotherley, id. 322 ; Luders v. 
 Anstey, 4 Ves. 501 ; Middleton v. Pollock, Ex. p. Wetlierall, L. E., 4 Ch. D. 
 49 ; 46 L. J., Ch. 39, S. C. See Wright v. Snowe, 2 De Gex & Sm. 321 ; 
 Maunsell o. White, 4 H. of L. Cas. 1039 ; Bold v. Hutchinson, 24 L. J., Ch. 
 285, per EomiUy, M. E. ; 20 Beav. 250, S. 0. ; 5 De Gex, M. & G. 558, S. C, 
 on appeal ; Traill v. Baring, 33 L. J., Ch. 521 ; 4 Giff. 485, S. C. 
 
 2 Gr. Ev. § 207, in part. 
 
 ^ Watson V. Threlkeld, 2 Esp. 637, per Ld. Kenyon ; EoMnson v. Nahon, 
 1 Camp. 245, per Ld. EUenhorough ; Munro v. De Chemant, 4 Camp. 215, 
 per id. ■* Divoll v. Leadbetter, 4 Pick. 220. 
 
 5 Mace V. Cadell, 1 Cowp. 233, per Ld. Mansfield ; recognised by Gaselee, J., 
 in Batthews v. GaHndo, 4 Bing. 613. 
 
704 ADMISSIONS ACTED UPON BY OTHERS. [PART IT. 
 
 But a -woman really married was, — prior to the passing of the late 
 Judicature Aots,^ — from some strange caprice in the common law, 
 excluded from the operation of this rule; and, therefore, if an 
 action had been brought against her as a feme sole, she might 
 have discharged herself from all liability at law by pleading and 
 proving that at the time of the contract she was a married woman, 
 although the plaintiff could have shown beyond dispute, not only 
 that she had held herself out to the world as a single woman, but 
 that she had dehberately declared to himself that she was unmar- 
 ried, and that he had supplied her with goods, and had sued her 
 afterwards, on the faith of such statement.^ As this doctrine is 
 opposed to the principles of equity, the decisions in support of it 
 have no longer any authority, but the Court, in the case supposed, 
 would now follow the precedents which the old Court of Chancery 
 has furnished, and afford relief to the party who had been thus 
 deceived.^ 
 
 § 843.* Where a person knowingly permits his name to be used § 773 
 as one of the partners in a trading firm, or an existing joint-stock 
 company, under such circumstances of publicity as to satisfy the 
 jury that a stranger knew of it, and believed him to be a partner, 
 he is liable to such stranger in all transactions, in which the latter 
 engaged and gave credit upon the faith of his being such partner.^ 
 So, although the mere fact of a person agreeing to become a 
 member of the provisional committee of an intended railway 
 company, or even the fact of such person authorising his name to 
 be published in a prospectus, which contains nothing more than the 
 names of the pro-visional committee-men, will not render him liable 
 
 ' See ante, § 5, nn. 4 & 5. 
 
 2 Glenisteri). Lady E. Thynne, Easter T. 1847, Q. B., per Coleridge, J., MS. ; 
 Cannam v. Farmer, 3 Ex. R. 698. See Wliite v. Greenish, 11 Com. B., N. S. 
 209, 236, per Keating, J. 
 
 ' See Vaiigban v. Vanderstegen, 2 Drew. 165, 363, 409 ; Re Lush's Trust:?, 
 38 L. J., Ch. 650 ; McHenry v. Davies, 39 L. J., Ch. 866. 
 
 ' Gr. Ev. 207, in part. 
 
 ' Per Parke, J., in Dickinson v. Valpy, 10 B. & C. 128, 140, 141 ; 5 M. 
 & R. 126, S. C. ; Wood v. D. of Argyll, 6 M. & Gr. 932, per Cresswell, J. ; 
 Harrison v. Heathorn, 6 M. & Gr. 81, 133, 134, per Tindal, C. J. ; Fox v. 
 Clifton, 6 Bing. 776, 794, per Tindal, C. J. See, also, Kell v. Nainby, 10 
 B. & C. 20 ; Guidon v. Robson, 2 Camp. 302, per Ld. Ellenborough. 
 
CHAP. XIV.] ADMISSIONS ACTEB UPON BY OTHERS. 705 
 
 for contracts made by the other members or by the solicitor, for the 
 purpose of promoting the objects in view ; because such an intended 
 association does not amount to a partnership, as it constitutes no 
 agreement to share in profit and loss ; ^ — still, if evidence be forth- 
 coming that such person has acted with relation to the proposed 
 scheme, as by attending meetings, giving directions, and the like, 
 it will be for the jury to determine ** whether he has not thereby 
 authorised the managing committee, or the other members of the 
 provisional committee, or the solicitor or secretary of the intended 
 company, to pledge his credit for the necessary and ordinary ex- 
 penses to be incurred in forming the company ; and if they decide 
 this question in the affirmative, they may then give a verdict 
 against him, on further finding that the work was done, and the 
 credit given, on the faith of his being liable.^ 
 
 § 844. On the same principle, if a man, by holding out false § 773 
 colours, induces a railway company to register him as a proprietor 
 of shares, and, subsequently, to bring an action against him for 
 calls on such shares, he will be precluded from disputing the validity 
 of the transfer to him, or from otherwise denying his character as a 
 shareholder.* So, when a company had registered a person as a 
 shareholder, and had induced him, on the faith of such registration, 
 to pay a call, they were not allowed to dispute his title to the 
 
 1 Reynell v. Lewis, & Wyld v. Hopkins, 15 M. & W. 517. See Ex parte 
 Cottle, 2 M. & Gord, 185 ; 2 HaU & T. 382, S. C. ; Ex parte Eoberts, 2 
 M. & Gord. 192 ; 2 HaU & T. 391, S. C. ; Noiris v. Cottle, 2 H. of L. Cas. 
 647 ; Hutton v. Upfill, id. 674 ; BrigM v. Hutton, & Hutton v. Bright, 3 H. 
 of L. Cas. 341 ; M'Ewan v. CampbeU, 2 Maoq. So. Cas. H. of L. 499. 
 
 = Williams v. Pigott, 2 Ex. R. 201 ; Bright v. Hutton, & Hutton v. Bright, 
 3 H. of L. Cas. 341. 
 
 ' Reynell v. Lewis, & Wyld v. Hopkins, 15 M. & W. 517 ; Lake v. D. of 
 Argyll, 6 Q. B. 477. See Higgins v. Hopkins, 3 Ex. B. 163 ; Bumside v. Day- 
 rell, id. 224 ; Bailey v. Macaulay, 13 Q. B. 815 ; Bennie v. Clarke, 5 Ex. R. 
 292 ; Rennie v. Wynn, 4 Ex. R. 691 ; Ex parte Besley, 2 M. & Gord. 176. 
 
 * Sheffield and Manch. Ry. Co. v. Woodcock, 7 M. & W. 574, 582, 583 ; 
 Cheltenham & Gt. West. Union Ry. Co. v. Daniel, 2 Q. B. 281, 292; In 
 re North of Eng. Jt. St. Bk. Co., Ex parte Straffon's Exors., 22 L. J., Ch. 194, 
 202, 203 ; Taylor v. Hughes, 2 Jones & Lat. 24. See Swan v. North Brit. 
 Australasian Co., 7 H. i& N. 603 ; S. C. in Ex. Ch., 2 New R. 521 ; 2 H. & C. 
 175 ; and 32 L. J., Ex. 273. 
 
706 ADMISSIONS ACTED UPON BY OTHEES. [PART II. 
 
 shares.^ An infant, too, who has actually deceiYed a tradesman by 
 fraudulently representing himself to be of full age, and who has 
 thus obtained credit for goods supplied to him, will be held bound 
 by his statement," and Uable to pay the debt. So, also, a person 
 who has assumed to act as a sworn broker of the city of London, 
 cannot, as against a party who has employed him, protect himself 
 from a discovery of his dealings with such party, on the ground that 
 his answer may expose him to penalties for having acted as a broker 
 without being duly qualified.^ 
 
 § 845. Where parties have agreed to act upon an assumed state § 774 
 of facts, their rights between themselves will be made to depend on 
 such assumption, and not upon the truth.* Again, if a party has 
 taken advantage of, or voluntarily acted under, the bankrupt or in- 
 solvent laws, he shall not be permitted, as against parties to the 
 proceedings, to deny their regularity.^ So, the grantee of an 
 annuity, whose duty it is to have the memorial properly enrolled, 
 cannot take advantage of his own neglect, and set up the want of 
 enrolment against the grantor, although the statute relating to 
 annuities* declares that in case of non-enrolment the deeds shall be 
 void to all intents and purposes.'' So, if an agent or a workman 
 knowingly renders an untrue account to his principal or employer, 
 
 ' Hart V. Frontino, &c., Gold Mming Co., 5 Law Eep., Ex. Ill ; 39 L. J., 
 Ex. 93, S. C. ; Ee Baliia & Francisco Ky. Co. v. Tritten, 37 L. J., Q. B., 137 ; 
 
 3 Law Rep., Q. B. 584 ; 9 B. & S. 844, S. C. See, also, Webb v. Heme Bay 
 Improving Com., 39 L. .T., Q. B. 221 ; 5 Law Eep., Q. B. 642, S. C. 
 
 ^ Ex parte Unity Jt. St. Mutual Bank. Associat., In re King, 3 De Gex 
 & J. 63 ; Nelson v. Stocker, 28 L. J., Ch. 760 ; 4 De Gex & J. 458, S. C. The 
 old common law rule, as recognised in the following cases, is no longer law. 
 Price V. Hewett, 8 Ex. R. 146 ; Liverpool Adelphi Loan Associat. v. Fair- 
 hurst, 9 Ex. R. 423, 430 ; Bartlett i: WeUs, 31 L. J., Q. B. 57 ; 1 B. & S. 
 836, S. C. ; De Roo v. Foster, 12 Com. B., N. S. 272. 
 
 ' Rohinson v. Kitohin, 21 Beav. 365 ; 8 De Gex, M. & G. 88, S. C. ; 25 L. J., 
 Ch. 441, S. C. ; Green v. "Weaver, 1 Sim. 404. 
 
 < M'Cance v. Lond. & N. W. Ry. Co., 34 L. J., Ex. 39 ; 3 H. & C. 343, S. C. 
 
 ^ Like V. Howe, 6 Esp. 20 ; Clarke i). Clarke, id. 61 ; Gouldie v. Gunston, 
 
 4 Camp. 381 ; Watson v. Wace, 5 B. & C. 153, explained in Heane v. Rogers, 
 9 B. & C. 586, 587 ; Mercer -o. Wise, 3 Esp. 219 ; Harmar v. Davis, 7 Taunt. 
 577 ; Flower v. Herbert, 2 Ves. Sen. 326. See ante, §§ 817, 818. 
 
 » 53 G. 3, c. 141, § 2. 
 
 ' Molton i>. Camroux, 2 Ex. E. 487 ; a£F. in Ex. Ch., 4 Ex. R. 17. 
 
CHAP. XIV.] ADMISSIONS ACTED UPON BY OTHERS. 707 
 
 and such account is adopted by the party to whom it is given, it 
 cannot afterwards be gainsaid by the person who rendered it.^ So, 
 if a man by his receipt acknowledges that he has received money 
 from an agent on account of his principal, and thereby accredits 
 the agent with the principal to that amount, such receipt is con- 
 clusive as to payment by the agent.** Therefore, the usual ac- 
 Imowledgment in a policy of insurance of the receipt of premium 
 from the assured is conclusive of the fact as between the under- 
 writers and the assured, although not as between the underwriters 
 and the broker.^ So, if a person having a right to an estate permit 
 or encourage a purchaser to buy it of another, the purchaser shall 
 hold it against the person who has the right ; * and precisely the 
 same doctrine applies to personal property.* So, if the owner of an 
 instrument which purports to be transferable by delivery, deposits 
 it with his broker or banker, he will be estopped, as against a bona 
 iide holder for value, from denying that it was transferable.® 
 
 § 846. Trespass, also, is not maintainable against a sheriffs § 774 
 officer who executes process against a man by a wrong name, either 
 by taking his person, or seizing his goods, if before the process be 
 sued out, he is asked his name, and gives such wrong one ; '' and if 
 
 1 Cave V. Mills, 31 L. J., Ex. 265 ; 7 H. & N. 913, S. C. ; Skyring v. Green- 
 wood, 4 B. & C. 281 ; Shaw v. Picton, id. 715. 
 
 2 3 St. Ev. 956. See Eice v. Eice, 2 Drew. 73 ; Hunter v. Walters, 11 Law 
 Eep., Eq,. 292. 
 
 3 3 St. Ev. 956 ; DalzeH v. Mair, 1 Camp. 532, per Ld. Ellenborough ; De 
 Gaminde v. Pigou, 4 Taunt. 246 ; Anderson v. Thornton, 8 Ex. E. 428, per 
 Parte, B. 
 
 * 3 Sug. V. & P. 428, lOth ed. ; and id. 611, 13tli ed. ; recognised hj the 
 court in Sandys v. Hodgson, 10 A. & E. 476. See, also, Eamsden v. DySon, 
 1 Law Eep., H. L. 129 ; and Doe v. Groves, 10 Q. B. 486. 
 
 5 Pickard v. Sears, 6 A. & E. 469 ; Gregg v. Wells, 10 A. & E. 90 ; 2 
 P. & D. 296, S. C. ; Coles v. Bk. of England, 10 A. & E. 437 ; 2 P. & D. 
 521, S. C. 
 
 8 Goodwin V. Eobarts, L. E., 1 App. Cas. 476 ; 10 Ex. D. 76, 337, S. C. ; 
 EumhaU v. Metrop. Bk., L. E., 2 Ex. D. 194 ; 46 L. J., Q. B. 346, S. C. 
 
 ' As to a ca. sa., see Morgans a. Bridges, 1 B. & A. 650, 651, and Magnay 
 ■0. Eisher, 5 M. & Gr. 778, 787 ; 6 Scott, N. E. 588, S. C. These cases appear 
 to overrule Coote v. Leighworth, M. 557, and a dictum of Ld. Hale in Thurhane 
 et al., Haidr. 323 ; hut see Freeman ii. Cooke, 18 L. J., Ex. 115, where Parke, 
 
 2 z 2 
 
708 ADMISSIONS ACTED UPON BY OTHERS. [PAET II. 
 
 a party, who has entered into a bond by a wrong name, is sued in 
 that name, he cannot, as it seems, cause the statement of claim to 
 be amended at the cost of the plaintiff,^ and probably he would be 
 estopped from denying that the name in which he was sued was his 
 real name.^ Again, in the case of a compulsory reference under 
 the Common Law Procedure Act, 1854, when the award was not 
 made within three months,^ but both parties had, after the lapse of 
 that period, continued to attend before the arbitrator without raising 
 any objection to his jurisdiction, it was held that the losing party 
 was estopped from alleging that the time had not been enlarged, 
 either by the court, or by the written consent of the parties.* On 
 the same principle, where a judge had tried a cause without the in- 
 tervention of a jury, both parties assenting to his jurisdiction, and 
 appearing before him, the unsuccessful party was not allowed after- 
 wards to object, that no written consent had been drawn up in 
 accordance with the requirements of the statute.' 
 
 § 847. If the members of an incorporated company allow a soli- § 775 
 citor to appear for them as defendants, and he consents to a refer- 
 ence, they cannot, after the award is made, object to the submission, 
 on the ground that the solicitor had no authority under seal to 
 defend or refer the cause.^ Where, too, the order of a judge was 
 
 B., intimated that it had always been the opinion of the profession that Coote 
 V. Leighworth was law. See, also, Dimston v. Paterson, 26 L. J., C. P. 267 ; 
 2 Com. B., N. S. 495, S. C. ; KeUy v. Lawrence, 33 L. J., Ex. 197 ; 3 H. & C. 
 1, S. C. As to a fl. fa., see Price v. Harwood, 3 Camp. 108, per Ld. EUen- 
 horough ; cited and recognised by Cresswell, J., ia Fisher v. Magnay, 5 M. 
 & Gr. 787. See, also. Reeves v. Slater, 7 B. & C. 486. 
 
 ' Hyokman v. Shotbolt, 3 Dyer, 279, b., cited 5 M. & Gr. 788, n. ; 3 & 4 
 W. 4, c. 42, § 11. 
 
 2 E. V. Wooldale, 6 Q. B. 566, per Wightman, J., citing Maby v. Shepherd, 
 Cro. Jac. 640, and Hyckman v. Shotbolt, 3 Dyer, 279, b. See, also, Williams 
 V. Bryant, 5 M. & W. 447. 
 
 3 See Baker v. Stephens, 8 B. & S. 438. 
 
 * Tyerman v. Smith, 25 L. J., Q. B. 359 ; 6 E. & B. 719, S. C. ; 17 & 18 V., 
 c. 125, §§ 3 & 15. See, also, Haines v. E. India Co., 6 Moo. Ind. App. Cas. 
 467, 484, 485, per Sir J. Patteson ; 11 Moo. P. C. E. 39, 57, S. C. 
 
 ^ Andrewes v. Elliott, 5 E. & B. 502 ; S. C, 6 E. & B. 338, Ex. Ch. ; 17 & 18 
 v., c. 125, § 1. 
 
 * FavieU v. East. Cos. Ry. Co., 2 Ex. R. 344 ; 6 Dowl. & L. 54, S. C. 
 
CHAP. XrV.] ADMISSIONS ACTED UPON BY OTHEES. 709 • 
 
 bad as a proceeding under the Interpleader Act,^ for want of a 
 statement of consent upon its face, it was nevertheless held to be 
 conclusive upon the parties, who by their conduct had agreed to 
 submit the matter in dispute to the decision of the judge.^ So, 
 although a breach of covenant can in no case be justified by a parol 
 licence to break it,^ a forfeiture occasioned by it may be sometimes 
 waived or rendered nugatory by the conduct of the covenantee. 
 Thus, where a lessor, after giving notice to his lessee to do repairs 
 within the period prescribed by the lease, so conducted himself as 
 to lull the lessee asleep and to lead him to suppose that he might 
 refrain from doing the repairs, the court would not allow the lessor 
 to insist upon a covenant of forfeiture, on the ground that the re- 
 pairs had not been finished within the time fixed for them.* So, 
 where a covenant to insure on the tenant's part was qualified by an 
 option given to the landlord to insure if the tenant made default, 
 and to add the premiums to his rent ; it was held, in ejectment for 
 a forfeiture for not insuring, that the defendant might defeat the 
 action, by proving that the landlord had represented to him that he 
 had exercised the power, and had himself duly insured the premises.' 
 So also, a tenant, who has paid rent, and acted as such, is not per- 
 mitted, — as stated more fully in another place,^ — to set up a superior 
 title of a third person against his lessor, in bar of an ejectment 
 brought by him ; for he derived the possession from him as tenant, 
 and shall not be allowed to repudiate the relation. 
 
 § 848. This doctrine is also applied to the respective relations § 776 
 of licensor and licensee, bailor and bailee, and principal and agent ; 
 the rule of law beiag clear that neither licensees, nor bailees, nor 
 agents, can be permitted to dispute the respective titles of their 
 licensors, bailors, or principals.'' A Hcensee, therefore, under a 
 
 » 1 & 2 W. 4, c. 58. See 1 & 2 V., c. 45, § 2. 
 
 2 Harrison v. "Wrigiit, 13 M. & W. 816. 
 
 3 Doe V. Gladwin, 6 Q. B. 953, 962 ; West v. Blakeway, 2 M. & Gr. 729. 
 
 * Hughes V. Metrop. Ey. Co., 45 L. J., 0. P. 578, per Ct. of App. 
 
 * Doe V. Sutton, 9 C. & P. 706 ; explained by Patteson, J., in Doe v. Gladwin, 
 6 Q. B. 962, 963 ; Doe v. Eowe, Ey. & M. 343 ; 2 C. & P. 246, S. C. See 
 ante, §§ 804—808. 
 
 6 Ante, §§ 101—103. 
 
 ' Dixon V. Hamond, 2 B. & A. 310, 313, per Abbott, C. J. ; Collett v. 
 
710 ADMISSIONS ACTED UPON BT OTHEES. [PABT II. 
 
 patentee is estopped from disputing the validity of the patent, so 
 long as the licence continues in force.^ So, if a warehouseman, 
 wharfinger, banker, sohcitor, agent, or other depositary of goods or 
 moneys, has once acknowledged the title of a person as his bailor or 
 principal, and has agreed to hold the goods or moneys subject to 
 his order, or to sell the goods and to account for the proceeds, he 
 will be estopped from setting up the title of a third person to the 
 same goods or moneys, or from otherwise defeating the rights of his 
 bailor or principal, against his own manifest obligations to him.^ 
 An exception, however, will be allowed, where the bailment has 
 been determined by what is equivalent to an eviction by title para- 
 mount,^ and also, where the bailor or principal has obtained the 
 goods fraudulently or tortiously from the third person,* provided 
 the defendant ia such last case can show, that he was unacquainted 
 with the circumstances when he made the admission,^ and that such 
 third person has actually made a claim to the goods or moneys in 
 question.^ Perhaps the bailor's title might also be impugned, 
 should the circumstances be such as to show that he, in connexion 
 with some third person, had practised a fraud on the bailee, by re- 
 
 Hubbard, 2 Coop. 94, 99 ; Zulueta v. Vinent, 1 De Gex, M. & G. 315 ; Story, 
 Agen. § 217 ; PhiUips v. Hall, 8 Wend. 610 ; Drown v. Smith, 3 New Hamp. 
 299 ; Eastman v. Tuttle, 1 Cowen, 248 ; M'Neil v. Philip, 1 M'C. 392 ; Chap- 
 man V. Searle, 3 Pick. 38, 44 ; Jewett v. Torry, 11 Mass. 219 ; Lyman v. Lyman, 
 id. 317 ; Story, BaU. § 102. 
 
 1 Crossley v. Dixon, 32 L. J., Ch. 617, per Dom. Proc. ; 10 H. of L. Cas. 
 293, S. C. 
 
 2 Gosling V. Birnie, 7 Bing. 339 ; 5 M. & P. 160, S. C. ; Woodley v. 
 Coventry, 32 L. J., Ex. 185 ; 2 H. & C. 164, S. C. ; Stonard v. DunMn, 2 
 Camp. 344, per Ld. Ellenborough ; Harman v. Anderson, id. 243, per id. ; 
 Knights V. Wiffen, 5 Law Eep., Q. B. 660 ; Hawes v. Watson, 2 B. & C. 540 ; 
 4 D. & R. 22, S. C. ; Dixon v. Hamond, 2 B. & A. 310 ; Roberts v. Ogilby, 9 
 Price, 269 ; anon, per Gould, J., cited 3 Esp. 115, and there recognised by 
 Ld. Kenyon ; Farringdon v. Clerk, 3 Doug. 124 ; 2 Chit. R. 429, S. C. ; HoU 
 V. Griffin, 10 Bing. 246 ; 3 Moore, 732, S. C. ; Nickolson v. Knowles, 5 ,Madd. 
 47 ; Evans v. Nichol, 3 M. & Gr. 614. See, however, Thome v. Tilbury, 27 
 L. J., Ex. 407 ; 3 H. & N. 534, S. C. 
 
 ' Biddle v. Bond, 34 L. J., Q. B. 137 ; 6 B. & S. 225, S. C. 
 " Hardman v. Wiloock, 9 Bing. 382, n. ; Biddle v. Bond, 34 L J OB 
 137 ; 6 B. & S. 225, S. C. 
 '* Per Alderson, J., in Gosling v. Birnie, 7 Bing. 346. 
 " Betteley v. Reid, 4 Q. B. 511, 617, 518. 
 
CHAP. XIV.J ADMISSIONS ACTED UPON BY OTHEES. 711 
 
 presenting goods to belong to the bailor, which, in fact, were the 
 property of such third person, if in this case additional proof were 
 given, that the defendant, in consequence of the fraudulent misre- 
 presentation, had sustained any real injury.^ 
 
 § 849. It seems also that, where a person pledges property to § 776 
 which he has no title, the pledgee is not estopped from delivering it 
 to the rightful owner ; for in the ordinary case of a pledge, the 
 pledgor impliedly undertakes that the property is his own, and the 
 pledgee merely undertakes that he will return it to the pledgor, 
 provided it be not shown to belong to another.^ A common carrier, 
 too, being bound to receive goods for carriage, and having no means 
 of making inquiry as to their ownership, is at liberty to dispute the 
 title of the person from whom he has received them ; and if he be 
 sued in trover by such person, he may establish his defence by 
 proving that he has delivered the goods to the real owner on his 
 claiming them.^ A vendor, however, who has sold goods to a party 
 as a sole purchaser, and has directed his factors to weigh them over 
 to such party, and to enter them in his name in their books, cannot, 
 after such sale and transfer, dispute his title as sole proprietor, 
 or detain the goods, on the authority of a third person, who claims 
 to be a joint purchaser.* 
 
 § 850. Again, in an action against the acceptor of a bill, the § 777 
 defendant cannot show that his signature has been forged, if he has 
 accredited the bill, and induced the plaintiff to take it, by saying 
 that the acceptance was his, and that the bill would be duly paid." 
 At one time, however, it was deemed law, that no consideration of 
 estoppel as between the parties could have any weight where the 
 rights of the revenue intervened ; and, consequently, the maker of a 
 banker's cheque, provided it were payable to bearer on demand,^ 
 
 1 Scott V. Crawford, 4 M. & Gr. 1031. 
 
 2 Cheesman v. Exall, 6 Ex. R. 341. 
 
 3 Sheridan v. The New Quay Co., 28 L. J., C. P. 58 ; 4 Com. B., N. S. 
 618, S. C. ■* Kieran v. Sandars, 6 A. & E. 515. 
 
 * Leach v. Buchanan, 4 Esp. 226, per Ld. EUenborough ; recognised by 
 Erskine, J., in Sanderson v. Collman, 4 M. & Gr. 222. 
 
 " Whistler v. Forster, 32 L. J., C. P. 161 ; 14 Com. B., N. S. 248, S. G, ; 
 
712 ADMISS. IMPLIED IN ACCEPTING BILL OF EXCHANGE. [PAET II. 
 
 might have defrauded a bona fide holder for value, by proving that 
 the cheque was post-dated, and, as such, inadmissible in evidence 
 without a bill stamp.^ But this doctrine, which certainly savoured 
 of cruel injustice, has recently been repudiated by the Court of 
 Exchequer ; ^ and it seems now to be the law, that if a cheque, — 
 whether payable to bearer or to order, — appears, when tendered 
 in evidence, to bear on its face a sufficient stamp, the court will 
 receive the document, and will not allow any proof to be given 
 that it had actually been post-dated, and that the holder had taken 
 it with knowledge of that fact.^ 
 
 § 851. The acceptance of a bill of exchange is also deemed a § 773 
 conclusive admission, as against the acceptor, of the signature of 
 the drawer,* and of his capacity to draw ; ^ and if the bill be payable 
 to the order of the drawer, of his capacity to indorse ;^ and if it be 
 drawn by procuration, of the authority of the agent to draw in the 
 name of the principal ; ^ and it matters not, in this respect, whether 
 the bill be drawn before or after the acceptance.^ The law, however, 
 
 Austin V. Bunyard, 4 Fost. & Fin. 253, per Cockburn, C. J. ; Bull v. O'SuUivan, 
 6 Law Eep., Q. B. 209 ; 40 L. J., Q. B. 141, S. C. 
 
 1 Field V. Woods, 7 A. & E. 114 ; 2 N. & P. IIV, S. C. ; recognised in 
 Steadman v. Duhamel, 1 Com. B. 892, 893. 
 
 2 Austin V. Bunyard, 34 L. J., Q. B. 217 ; 6 B. & S. 687, S. C. 
 
 3 Gatty V. Fry, L. E., 2 Ex. D. 265 ; Emanuel v. Eobarts, 6 B. & S. 687 ; 34 
 L. J., Q. B. 217, S. C. 
 
 ^ Sanderson v. Collman, 4 M. & Gr. 209 ; 4 Scott, N. K. 638, S. C. ; Bass 
 11. Clive, 4 M. & Sel. 13. 
 
 * Id. See Haly v. Lane, 2 Atk. 182, per Ld. Hardwicke. 
 
 " Taylor v. Croker, 4 Esp. 187, per Ld. EllenlDorough ; Pitt v. diappelow, 
 8 M. & W. 616 ; Drayton v. Dale, 2 B. & C. 293 ; 3 D. & R. 534, S. C. AU 
 these cases were recognised by the court in Sanderson v. Collman, 4 M. & Gr. 
 218, 219, 224. See, also, Braithwaite v. Gardiner, 8 Q. B. 473, where, in an 
 action by indorsee against acceptor of a bill, it was held, that the defendant 
 was estopped from pleading that the drawer and first indorser was an un- 
 certificated bankrupt when the acceptance was given, and that his assignees 
 had demanded payment. So, in a similar action, the defendant cannot plead 
 that the drawer and first indorser was a married woman from the date of the 
 drawing down to the time of the indorsing of the bill. Smith v. Marsack, 
 e Com. B. 486 ; 6 Dowl. & L. 363, S. C. 
 
 ' Robinson v. Yarrow, 7 Taunt. 455 ; Jones v. Tumour, 4 C. & P. 204, per 
 Ld. Tenterden. 
 
 Schultz V. Astley, 2 Bing. N. C. 544, 552, 553 ; 2 Scott, 815, S. C. j 
 HaUifax v. Lyle, 3 Ex. R. 446. 
 
CHAP. XrV.] WHAT ACCEPTOR OF BILL OF EXCHANGE ADMITS. 713 
 
 in general, recognises no such admission on the part of the acceptor, 
 either of the signature of the payee, though he be the same party 
 as the drawer,^ or of that of any other indorser ; ^ and this, too, 
 although, at the time of the acceptance, the indorsements were on 
 the bill.* Neither does the acceptance admit, that an agent, who 
 has drawn a bill by procuration, payable to the order of the principal, 
 has authority to indorse the same ; * nor is the acceptor of a bill, 
 which a partner has drawn in the partnership name and made 
 payable to the firm's order, estopped from showing that in fact it 
 was not indorsed by the firm or negotiated for any partnership 
 purpose.^ So, if on a bill payable to the order of the drawer the name 
 of a real person as drawer and indorser he forged, it seems that the 
 mere acceptance of such bill, in ignorance of the forgery, will not 
 preclude the acceptor from denying the genuineness of the indorse- 
 ment, though it be in the same handwriting as the drawing which 
 he is bound to admit ; ^ but if the acceptor, with knowledge of the 
 forgery, puts the bill in circulation, he will be estopped from dis- 
 puting the validity of the indorsement equally with that of the 
 drawing.'' In this last event the case is considered to fall within 
 the principle of Cooper v. Meyer, which decides that if the bill be 
 drawn ia a whollj fictitious name, and the handwriting of the in- 
 dorsement be the same as that of the drawing, the acceptor will be 
 estopped from denying it, because he admits that the bill is drawn 
 by somebody, that is, by the person who indorses in the same hand- 
 writing, and the fair construction to be put on his undertaking is, 
 that he will pay to the signature of the same person who signed for 
 the drawer.^ 
 
 ' Forster v. Clements, 2 Camp. 17 ; Maoferson v. Thoytes, Pea. E. 20 ; 
 Bosanquet i). Anderson, 6 Esp. 44, per Ld. Ellenborougli ; Cooper v. Meyer, 
 10 B. & C. 471, per Ld. Tenterden. 2 Id. 
 
 3 Smith V. Chester, 1 T. E. 654 ; Eobarts v. Tucker, 16 Q. B. 560. 
 
 ^ Eobinson v. Yarrow, 7 Taunt. 455 ; recognised in Beeman v. Duck, 11 
 M. & W. 255. 
 
 * Garland v. Jacomh, 8 Law Eep., Ex. 216, per Ex. Ch. 
 
 « Beeman v. Duck, 11 M. & W. 251, 255. '' Id. 
 
 s Cooper V. Meyer, 10 B. & C. 468, 471, per Ld. Tenterden ; 5 M. & E. 387, 
 S. C. ; explained and recognised by Parke, B., ia Beeman v. Duck, 11 M. & W. 
 253—256. See, also, Asbpitel v. Bryan, 32 L. J., Q. B. 91 ; 3 B. & S. 474, 
 S. C. ; S. C. in Ex. Ch., 5 B. & S. 723, and 33 L. J., Q. B. 328 ; Phillips v. Imi 
 
714 WHAT INDOESEMENT OF BILL OB NOTE ADMITS. [PABT II. 
 
 § 852. The reasons for this distinction between the case of a § 779 
 drawer and that of an indorser, who signs the bill before the accept- 
 ance, are not very clear ; but those usually assigned are, that, as 
 the acceptor is only presumed to be acquainted with the handwriting 
 of the drawer, it is sufScient if he ascertains that his signature is 
 genuine ; that he is not bound to look at the back of the bUl at all ; 
 that, even if he were, he could not be supposed to know the hand- 
 writing of indorsers, who would probably be strangers to him ; and 
 that a different rule would raise nice questions of fact in every 
 case, as to whether the bill was indorsed before or after acceptance, 
 and would consequently embarrass the circulation of negotiable se- 
 curities, by rendering the position of acceptors hazardous and 
 undefined.^ 
 
 § 853. In accordance with the law which estops an acceptor from § 780 
 disputing the genuineness of the drawing, the indorsement .hj the 
 payee of a promissory note is a conclusive admission of the hand- 
 writing of the maker ;^ and it has further been decided by the Court 
 of Queen's Bench,^ — in opposition to some technical suggestions 
 thrown out by the Barons of the Exchequer,* — that the indorsement 
 of a bill of exchange will also operate as an estoppel on the indorser 
 to deny any of the preceding signatures. In those cases where the 
 admission was conclusive, it might, under the old form of pleading,' 
 either have been replied by way of estoppel in pais,^ or if the matter 
 of estoppel appeared on the pleadings, the party might have availed 
 himself of it on demurrer.''' 
 
 § 854. Having now fully discussed the effect of such admissions § 781. 
 as have been acted upon, it is right to point out that those 
 admissions which either have been made without any intention 
 
 Thum, 18 Com. B., N. S. 400 & 694 ; 35 L. J., 0. P. 220 ; and 1 Law Rep., 
 C. P. 463, S. C. ; 1 H. & E. 499, S. C, in a later stage. 
 
 ' See Story, Bills, § 263 ; Robinson v. Yarrow, 7 Taunt. 458, per Park, J. ; 
 Smith V. Chester, 1 T. R. 654 ; Canal Bk. v. Bk. of Albany, 1 HUl, N. Y. R. 
 287. 2 pree v. Hawkins, Holt, N. P. R. 550, per Gibbs, C. J. 
 
 3 MacgregoT v. Rhodes, 25 L. J., Q. B. 318 ; 6 E. & B. 266, S. C. 
 
 " Annani v. Castrique, 13 M. & W. 443. * Qusere as to the law now? 
 
 « Sanderson v. Colhnan, 4 M. & Gr. 209 ; 4 Scott, N. R. 638, S. C. 
 
 ' Armani v. Castriqne, 13 M. & W. 451 ; Macgregor v. Rhodes, 25 L. J., 
 Q. B. 318 ; 6 E. & B. 266, S. C. 
 
CHAP. XrV.] ADMISSIONS NOT ACTED UPON BY OTHEES. 715 
 
 of being acted upon, or which have not been acted wpon, or by 
 which the situation oj the opposite party has not been prejudiced 
 or altered, though receivable in evidence against the parties making 
 them, are not conclusive.^ Thus, if A. contracts to sell timber 
 to B., and gives him a delivery order, he may still, onB.'s bank- 
 ruptcy, meet an action of trover brought by B.'s trustee, by showing 
 that the delivery order was invalid, and therefore did not amount 
 to a constructive delivery of the goods, provided B. has neither 
 paid for them, nor sold them to a third party.^ So, in an action 
 against a marshal, for the escape of a prisoner arrested at the 
 suit of the plaintiff, the defendant, by having received the prisoner 
 into custody, is not estopped from disputing the legality of the 
 custody.^ Neither will the court treat as conclusive evidence the 
 admission that his trade was a nuisance, by one indicted for setting 
 it up in another place ; * or the admission by the defendant, in a 
 petition for damages by reason of adultery,^ that the " teterrima 
 causa " was the wife of the plaintiff.^ So a sheriif's return, though 
 it be conclusive evidence, in the particular cause in which it is made, 
 or for the purposes of an attachment, does not operate as an es- 
 toppel in any other action or proceeding, either as against the 
 sheriff or as against his bailiff.''' So, also, a creditor is not estopped 
 from bringing an action against a sheriff for a false return, by ac- 
 cepting the amount levied on account and towards the satisfaction 
 of the debt mentioned in the writ ; * and where a person brought an 
 action of trover for a dog, he was held not to be precluded from 
 
 ' See Howard v. Hudson, 2 E. & B. 1 ; White v. Greenish, 11 Com. B., 
 N. S. 209 ; Foster v. Mentor Life Assnr. Co., 3 E. & B. 48 ; Carr v. Lend. & N. 
 West. Ry. Co., 44 L. J., C. P. 109 ; 10 Law Eep., C. P. 307, S. C. 
 
 2 Lackington v. Atherton, 7 M. & Gr. 360, 363—365. 
 
 3 Contant v. Chapman, 2 Q. B. 771. 
 
 ^ R. V. Neville, Pea. R. 91, per Ld. Kenyon. 
 
 " See 20 & 21 V., c. 85, § 33. 
 
 5 Morris v. Miller, 4 Burr. 2057 ; further explained ia Rigg v. Curgenven 
 2 Wils. 399. , 
 
 7 Standish v. Ross, 3 Ex. R. 527 ; Brydges v. Walford, 6 M. & Sel. 42 ; 1 
 Stark. R. 389, n. S. C. ; Jackson v. Hill, 10 A. & E. 477 ; Renmiett v. Law- 
 rence, 15 Q. B. 1004 ; Levy v. Hale, 29 L. J., 0. P. 127 ; Stimson v. Famham, 
 41 L. J., Q. B. 52 ; 7 Law Rep., Q. B. 175, S. C. 
 
 " Holmes v. Clifton, 10 A. & E. 673, overruling Beynon v. Garrat, 1 C. & P. 
 154. 
 
716 ADMISSIONS NOT ACTED UPON BY OTHERS. [PART II. 
 
 proYhig his title to it, though he had previously authorised a third 
 party, against whom the defendant had brought a similar action, to 
 deliyer it to the defendant, in the place of paying SOL, which was 
 the alternative directed by the verdict ; the third person having, at 
 the time of delivery, demanded back the dog, on behalf of the 
 plaintiff, as his property .^ In these,^ and the like cases,^ no wrong 
 is done to the other party, by receiving any legal evidence to show 
 that the admission was erroneous, and by leaving the whole 
 evidence, including the admission, to be weighed by the jury. 
 
 § 855. The case of Freeman v. Cooke* carries this doctrine to § 782 
 its extreme limit, if it does not transgress the strict bounds of law. 
 That was an action of trover brought against a sheriff for seizing 
 the plaintiff's goods under a fi. fa. against his brother, to which the 
 defendant pleaded not guilty, not possessed, and leave and Ucence. 
 It appeared at the trial, that the plaintiff, fearing an execution, had 
 removed his goods to his brother's house, and when the sheriff's 
 officer came there, the plaintiff, supposing that he had a writ 
 against himself, warned him not to seize the goods, as they be- 
 longed to his brother. The officer, however, producing his writ, 
 which was agaiast the brother, the plaintiff, before the goods were 
 actually seized, told him that they were the property of a third 
 party ; but the officer disregarded this last statement, and seized 
 and sold the goods, as belonging to the brother. On this state of 
 facts, the jury found that the goods were the plaintiff's, but that, 
 before the seizure, he falsely stated to the officer that they belonged 
 to his brother, and that the of&cer was thereby induced to seize 
 them as his brother's. The court, on this finding, directed the 
 verdict to be entered for the plaintiff, on the grounds, first, that 
 the plaintiff did not intend to induce the officer to seize the goods 
 as those of the brother ; and next, that no reasonable man would 
 have seized the goods on the faith of the plaintiff's representations 
 taken altogether. 
 
 ' Sandys v. Hodgson, 10 A. & E. 472. 
 2 Gr. Ev. § 209, four lines. 
 
 =• See ante, §§ 804—808. See, also, Machu v. Lond. & S. West. Ey. Co., 
 2 Ex. R. 415 ; Greenish v. White, 31 L. J., C. P. 93. 
 < 2 Ex. K. 654, 664 ; 6 Dowl. & L. 187, S. C. 
 
CHAP. XIV.] ADMISSIONS CONCLUSIVE ON PUBLIC POLICY. 717 
 
 § 856.^ In some few cases, connected with the administration of § 783 
 public justice and of government, admissions are held conclusive 
 on grounds of public policy. Thus, in an action for penalties for 
 election bribery, a man who has given money to another for his 
 vote, will not be permitted to say that such other person had no 
 right to vote.^ So, where the owners of a stage coach took up 
 more passengers than were allowed by statute, and an injury was 
 laid as having arisen from overloading, their conduct was held to 
 be conclusive evidence that the accident was occasioned by the 
 cause assigned.* So, one who has officiously intermeddled with 
 the goods of another recently deceased, is, in favour of creditors, 
 estopped from denying that he is executor.* And if an executrix 
 treats the goods of her testator as the property of her husband, 
 she will not be allowed to object to their being taken in execution 
 for her husband's debt.^ Thus, also, where a shipowner, whose 
 ship had been forfeited for breach of the revenue laws, applied to 
 the Secretary of the Treasury for a remission of the forfeiture, 
 on the ground that it was incurred by the master ignorantly and 
 without fraud, and upon making oath to the application, in the 
 usual course, the ship was given up ; he was not permitted after- 
 wards to gainsay this statement, and to prove the misconduct of 
 the master, in an action by the latter against himself for wages on 
 the same voyage, even by showing that the fraud had subsequently 
 come to his knowledge.^ 
 
 1 Gr. Ev. § 210, in part. 
 
 2 Comte V. Pitt, 3 Burr. 1586, 1590 ; 1 Wm. Bl. 524, S. 0. ; Eigg v. Cur- 
 genven, 2 Wils. 395. 
 
 ^ Israel v. Clark, 4 Esp. 259, per Ld. Kenyon, recognised by Ld. EUen- 
 boroitgli. 
 
 ■< Reade's case, 5 Co. 33, 34 ; Toller on Ex. 37—41 ; 1 Will, on Ex. 225, 
 et seq. 
 
 5 Quick V. Staines, 1 B. & P. 293. See Eenwick v. Laycock, 2 Q. B. 108. 
 
 " Freeman v. Walker, V Greenl. 68. But a sworn entry at the custom-liouse 
 of certain premises, as being rented by A., B., and C, as partners, for the sale 
 of beer, tbougb conclusive in favour of the Crown, is not conclusive evidence 
 of the partnersMp, in a civil suit, in favour of a stranger. EUis v. Watson, 
 2 Stark. R. 453, 478. The difference between this case and that in the text 
 may be, that, in the latter, the partner gained an advantage to himself, which 
 was not the case in the entry of partnership ; it being only incidental to the 
 principal object, namely, the designation of the place where an excisable 
 commodity was sold. 
 
718 SWOEN ADMISSIONS ADMISSIONS IN DEEDS. [PAET II. 
 
 § 857.^ The mere fact, that an admission was made under oath, § 784 
 does not seem alone to render it conclusiye against the party ; but 
 it adds vastly to the weight of the testimony, throwing upon him 
 the burthen of showing that it was a case of clear and innocent 
 mistake. Thus, in a prosecution under the game laws, proof of 
 the defendant's oath, taken under the Income Act, that the yearly 
 value of his estate was less than lOOZ., was held not quite con- 
 clusive against him, though very strong evidence of the fact ; ^ 
 and the same rule has been applied where the fact sworn to was 
 not, as it might be considered in this case, a matter of judgment, 
 but was purely a matter of fact within the knowledge of the party 
 swearing.^ The defendant's belief of a fact, sworn to in an old 
 answer in Chancery, is admissible evidence against him, though not 
 conclusive.* 
 
 § 858.' Admissions in deeds have already been considered in § 785 
 regard to parties and privies,^ between whom they are generally 
 regarded as estoppels, if properly pleaded;'' and when not techni- 
 cally so, they are entitled to great weight, from the solemnity of 
 their nature.^ But when offered in evidence by a stranger, the 
 adverse party may repel their effect, in the same manner as though 
 they were only parol admissions.^ 
 
 § 859.^° Other admissions, though in writing, not having been § 786 
 acted upon by another to his prejudice, nor falling within the 
 
 1 Gr. Ev. § 210, in part. 2 jj_ ^_ Clarke, 8 T. E. 220. 
 
 '' Thomes v. White, Tyr. & Gr. 110. 
 
 ■• Doe V. Steel, 3 Camp. 115, per Ld. Ellenborougli. Answers in Chanpeiy 
 used to be always admissiMe at common law against the party ; but apparently 
 were not regarded as strictly conclusive, merely because they were sworn to. 
 See B. N. P. 236, 237 ; Cameron v. Lightfoot, 2 W. Bl. 1190 ; Grant v. Jackson, 
 Pea. B. 203 ; Studdy v. Sanders, 2 D. & R. 347 ; De Whelpdale v. Milbum, 
 5 Price, 485. ' Gr. Ev. § 211, in great part. 
 
 « Ante, §§ 91—100. 
 
 ' Fishmongers' Go. v. Eobertson, 5 M. & Gr. 193 ; Bowman v. Eostron, 2 
 A. & E. 295, n. 
 
 8 Doe V. Stone, 3 Com. B. 176. 
 
 ° E. V. Neville, Pea. E. 91 ; Woodward v. Larking, 3 Esp. 286 ; May. of 
 Carlisle v. Blamire, 8 East, 487, 492, 493. 
 
 1" Gr. Ev. § 212, in great part. 
 
CHAP. XIV.] ADMISSIONS IN RECEIPTS, PASS-BOOKS, ETC. 719 
 
 reason before mentioned for estopping the party to gainsay them, 
 are not conclusive against him, but are left at large, to be weighed 
 with other evidence by the jury. Of this sort are receipts, or 
 mere acknowledgments, given for goods or money, whether on 
 separate papers,^ or indorsed on deeds,^or on negotiable securities;^ 
 bankers' pass-books ;^ the adjustment of a loss on a policy of 
 insurance, made without full knowledge of aU the circumstances, 
 or under a mistake of law or fact, or under any other invahdating 
 circumstances ; ^ and accounts rendered, such as a solicitor's bill,^ 
 and the like.'' An old bill in Chancery is not admissible at all 
 against the plaintiff in proof of the admissions it contains, since 
 the facts stated therein are regarded as nothing more than the mere 
 suggestions of counsel.^ 
 
 § 860. Where an executor or administrator, upon the citation § 787 
 of a party interested, has exhibited an inventory of the personal 
 estate of a deceased person, either in the Ecclesiastical Court 
 under the old law, or in the Probate Division of the High Court 
 under the new law,^ such document, being sworn to by the exhi- 
 
 1 Skaife v. Jackson, 3 B. & C. 421 ; Farrar v. HutcMnson, 9 A. & E. 641 ; 
 1 P. & D. 437, S. C. ; WaUace v. KelsaU, 7 M. & W. 273, per Parke, B. '; 
 Bowes V. Foster, 2 H. & N. 779, 787, per Martin, B. ; Lee v. Lano. & Yorks. 
 Ry. Co., 6 Law Rep., Ch. Ap. 527. These oases have \drtually overruled 
 Alaer v. George, 1 Camp. 392. For American cases see Harden v. Gordon, 2 
 Mason, 541, 561 ; Fuller v. Crittenden, 9 Conn. 401 ; Ensign v. Webster, 
 1 Johns. 145 ; Putnam v. Lewis, 8 Johns. 389 ; Stackpole v. Arnold, 11 Mass. 
 27 ; Tucker v. MaxweU, id. 143 ; Winiamson v. Scott, 17 Mass. 249. 
 
 2 Straton f). Kastall, 2 T. E. 366; Lampon v. Corke, 5 B. & A. 611, per 
 Holioyd, J. ; 612, per Best, J. As to cases where the receipt of money is 
 mentioned in the deed itself, see ante, § 96. 
 
 ^ Graves v. Key, 3 B. & Ad. 313. 
 
 ^ Commercial Bk. of Scotl. v. Ehind, 3 Macq. So. Cas. H. of L. 643. 
 
 ' Luokie v. Bushhy, 13 Com. B. 864 ; Eeyner v. Hall, 4 Taunt. 725 ; Shep- 
 herd V. Chewter, 1 Camp. 274, 276, n. ; Adams v. Sanders, M. & M. 373 ; 
 4 C. & P. 25, S. C. ; Christian v. Coombe, 2 Esp. 489. 
 
 " Loveridge v. Botham, 1 B. & P. 49, 
 
 7 See Bacon v. Chesney, 1 Stark. E. 192, 193, n. b ; Dawson v. Eemnant, 
 6 Esp. 24. 
 
 " Boileau «. Eutlin, 2 Ex. E. 665 ; Doe v. Sybonm, 7 T. E. 3, per Ld 
 Kenyon. 
 
 " 20 & 21 v., c. 77 ; Eules of 1862 for Ct. of Prob. in contentious business, 
 r. 76, and Form No. 27. 
 
720 INYENTOEY, HOW FAB AN ADMISSION OP ASSETS. [PART II. 
 
 bitant, will be regarded very properly as prima facie evidence of 
 assets ; and tbe executor or administrator, who has pleaded plene 
 administravit, will be forced to show, either the non-existence of 
 such assets, or that they have not reached his hands, or that they 
 have been duly administered.^ The same effect will be given to a 
 declaration of the personalty of a testator or intestate, which has 
 been made upon oath by his representative before a final settle- 
 ment of the accounts.^ So, in Ireland, where an inventory used to 
 be solemnly exhibited by an executor in order to procure probate, 
 and was further verified by his affidavit, it was treated as prima 
 facie evidence, not only that the testator had left assets to the 
 amount specified in the inventory, but that such assets had been 
 received by the executor in due course.^ In England, however, 
 as inventories without signature or verification were formerly pro- 
 duced for the mere purpose of obtaining probate, they were not 
 regarded as prima facie evidence of assets,* though they would 
 seem to have furnished, in conjunction with other circumstances, 
 some proof of the value of the estate. A probate stamp, though 
 admissible as slight evidence of assets to the amount covered 
 thereby, is not alone sufficient to throw upon the executors the 
 burthen of proving the non-receipt of such assets.^ Coupled, how- 
 ever, with proof either of long acquiescence in the payment of the 
 duty, or of other suspicious circumstances, it might perhaps furnish 
 a presumption of assets received, which the executors would find it 
 ^iificult to rebut.^ 
 
 ' Giles V. Dyson, 1 Stark. R. 32, explained in Stearn v. Mills, 4 B. & Ad. 
 660, 662 ; Parsons v. Hancock, M. & M. 330, per Parke, .T. ; Hiokey v. Hayter, 
 1 Esp. 313 ; 6 T. R. 384, S. G. ; Yoimg v. Cawdrey, 8 Taunt. 734. See Hutton 
 V. Eossiter, 7 De Gex, M. & G. 9. 
 
 2 See Rules of 1862 for Reg. of Ct. of Prob. in non-contentious business. 
 Form No. 18 ; and Rules for Dist. Reg. of Ct. of Prol)., Porm No. 18 ; and 
 cases cited in last note. 
 
 3 Rowan V. Jetb, 10 Ir. Law R. 216. 
 
 * Steam v. Mills, 4 B. & Ad. 657 ; 1 N. & M. 434, S. C. 
 
 ^ Mann v. Lang, 3 A. & E. 699 ; Stearn v. Mills, 4 B. & Ad. 663, 664. These 
 cases overrule Foster v. Blakelock, 5 B. & C. 328. 
 
 " Mann v. Lang, 3 A. & E. 702, per Ld. Denman ; Curtis v. Hunt, 1 C. & P. 
 180, per Ld. Tenterden ; Rowan v. Jebb, 10 Ir. Law R. 217 ; Lazenby ii. 
 Rawson, 4 De Gex, M. & G. 556, 563, 564, per Ld. Cranwortb. 
 
CHAP. XIV.] ORAL ADMISSIONS TO BE KECEIVED WITH CAUTION. 721 
 
 § 861.^ Evidence of oral admissions ought always to be received § 788 
 with great caution.^ Such evidence is necessarily subject to much 
 imperfection and mistake-; for either the party himself may have 
 been misinformed, or he may not have clearly expressed his 
 meaning/ or the witness may have misunderstood him,* or may 
 purposely misquote the expressions used.' It also sometimes 
 happens, that the witness, by unintentionally altering a few words, 
 will give an effect to the statement completely at variance with 
 what the party actually said.® But where the admission is delibe- 
 rately made, and precisely identified, the evidence it affords is often 
 of the most satisfactory nature.'' 
 
 1 Gr. Ev. § 200, in part. 
 
 ' See post, § 862. 
 
 3 See Gospel of St. John, ch. 21, w. 21—23. 
 
 * See St. Matthew, ch. 27, w. 46, 47. 
 
 * See and compare St. John, ch. 2, w. 18 — 21, and St. Matthew, ch. 26, 
 w. 60, 61. 
 
 ' Ante, § 216, n. 3. Alciatus expresses the sense of the civilians to the same 
 effect, where, after speaking of the weight of a judicial admission, " propter 
 majorem certitudinem, quam in se hahet," he adds, — "Quse ratio non hahet 
 locum quando ista confessio probaretur per testes ; imo est minus certa cceteris 
 proiationihus," &c. Alciat. de Frees., Pars 2, Col. 682, n. 6. See Poth. Obi., 
 App. No. 16, § 13 ; Lench v. Lench, 10 Ves. 517, 518. 
 
 ' Eigg V. Curgenven, 2 WUs. 395, 399 ; Glassf. Ev. 356 ; Com. v. Knapp, 
 9 Pick. 507, 508, per Putnam, J. As to Admissions by Agents, see ante, 
 §§ 602—605. 
 
 3 A 
 
722 OEAL CONFESSIONS TO BE BECEIYBD WITH CAUTION. [PAET II. 
 
 CHAPTER XV. 
 
 CONFESSIONS. 
 
 § 862.1 ijijjj; Qjjjy topic under the general head of admissions § 78^ 
 which remains to be discussed, is that of confessions of guilt in 
 criminal prosecutions ; and here it may be observed, — as just 
 remarked in regard to admissions in civil proceedings,** — that the 
 evidence of oral confessions of guilt ought to be received with 
 great caution.^ For not only does considerable danger of mistake 
 arise fi-om the misapprehension or malice of witnesses, the misuse 
 of words, the failure of the party to express his own meaning, and 
 the infirmity of memory* ; but the zeal which generally prevails 
 to detect offenders, especially in cases of aggravated guUt, and 
 the strong disposition which is often displayed by persons engaged 
 in pursuit of evidence, to magnify slight grounds of suspicion into 
 sufficient proof, ^^ — together with the character of the witnesses, 
 
 ' Gt. Ev. § 214, in great part. 2 Ante, § 861. 
 
 ' Macanlay, in his History of England, VoL 1, Oh. 5, p. 583, has ex- 
 pressed this sentiment in forciMe language. " Words," says he, "may easily 
 be misunderstood by an honest man. They may easily be misconstrued by a 
 knave. What was spoken metaphorically may be apprehended literally. What 
 was spoken ludicrously may be apprehended seriously. A particle, a tense, a 
 mood, an emphasis, may make the whole difference between guilt and inno- 
 cence." 
 
 * See Earle v. Picken, 5 C. & P. 542, n., per Parke, B. ; R. v. Simons, 6 
 C. & P. 540, per Alderson, B. ; Fost. C. L. 243 ; Coleman's case, cited in Joy 
 on Confess. 108. In Eesp. v. Fields, Peck, R. 140, the court observed, " How 
 easy is it for the hearer to take one word for another, or to take a word in a 
 sense not intended by the speaker ; and for want of an exact representation of 
 the tone of voice, emphasis, countenance, eye, manner, and action of the one 
 who made the confession, how almost impossible is it to make third persons 
 imderstand the exact state of his mind and meaning ! For these reasons such 
 evidence is received with great distrust, and under apprehensions for the 
 wrong it may do." 
 
 ' For a curious instance of this kind of exaggeration, see the evidence 
 adduced in support of Hugh Macauley Boyd's claim to the authorship of 
 Junius, 1 Woodfall's Junius, *133— *137. 
 
CHAP. XV.] OKAL CONFESSIONS TO BE RECEIVED WITH CAUTION. 723 
 
 who are sometimes necessarily called in cases of secret and 
 atrocious crime, — all tend to impair the value of this kind of 
 evidence, and sometimes lead to its rejection, v?here, in civil 
 actions, it would have been received. The weighty observation 
 of Mr. Justice Foster should also be kept in mind, that " this 
 evidence is not, in the ordinary course of things, to be disproved 
 by that sort of negative evidence, by which the proof of plain facts 
 may be, and often is, confronted."^ 
 
 § 863. In addition to these sources of distrust, which are often § 790 
 sufficient to raise a serious doubt whether the confession given in 
 evidence was actually made by the prisoner in the words, or to the 
 effect, stated by the witnesses, there is yet another reason why 
 caution should be employed in receiving and weighing confessions. 
 The statements, though made as deposed to, may be false. The 
 prisoner, oppressed by the calamity of his situation, may have 
 been induced by motives of hope or fear to make an untrue confes- 
 sion ; ^ and the same result may have arisen from a morbid 
 
 1 Post. C. L. 243. See, also, 1 Ph. Ev. 307 ; Lenoli v. Leuch, 10 Ves. 518 ; 
 Smitli V. Bumhani, 3 Siunn. 438 ; 4 Bl. Com. 357 ; R. ■;;. Crossfield, 26 How. 
 St. Tr. 109, per Mr. Adams, in Lis address to the jury. The civilians placed 
 little reliance on naked confessions of guilt, not corroborated hy other testimony. 
 Carpzovius, after citing the opinion of Severus to that effect, and enumerating 
 the various kinds of misery which tempt its wretched victims to this mode of 
 suicide, adds — " quorum omnium ex his fontibus contra se emissa pronunciatio, 
 non tam delicti confessione firniati quam vox doloris, vel insamentis oratio est." 
 Carpz. Praot. Rer. Or. Pars III. Quaest. 114, p. 160. So, also, iu the Eccles. 
 Courts it is regarded with great distrust. See per Sir W. Scott, in Williams 
 V. WUliams, 1 Hagg. Cons. 304. 
 
 2 *0f this character was the remarkable case of the two Booms, convicted in 
 the Supr. Court of Vermont, ia Sept. 1819, of the murder of RusaeE. Colvin, 
 May 10, 1812. It appeared that Colvin, who was the brother-ia-law of the 
 prisoners, was a person of weak mind ; that he was considered burdensome to 
 the family of the prisoners, who were obHged to support him ; that on the day 
 of his disappearance, being in a distant field where the prisoners were at work, 
 a violent quarrel broke out between them ; and that one of them struck him a 
 violent blow on the back of the head with a club, which felled him to the 
 around. Some suspicions arose at that time that he was murdered ; which 
 were increased by the finding of his hat in the same field a few months after- 
 wards. These suspicious in process of time subsided ; but, in 1819, one of the 
 
 * Gr. Ev. § 214, n. 2. 
 
 3 A 2 
 
724 INSTANCES OP FALSE CONFESSIONS. [PART II. 
 
 ambition to obtain an infamous notoriety/ from an insane or 
 criminal desire to be rid of life, from a reasonable wisb to commence 
 a new career in another hemisphere, from an almost pardonable 
 anxiety to screen a relative or a comrade,^ or even from the delusion 
 of an overwrought and fantastic imagination.^ 
 
 § 864. Still, the actual instances of false confessions of crime § 790 
 are very rare, and* their just value has been happily stated by one 
 
 neighbours having repeatedly dreamed of the murder, with great minuteness of 
 ciicmnstance, both in regard to his death and the concealment of his remains, 
 the prisoners were vehemently accused, and generally believed guilty of the 
 murder. Upon strict search, the pocket-knife of Colvin and a button of his 
 clothes were found in an old open cellar in the same field, and in a hollow 
 stump not many rods from it were discovered two nails and a number of 
 bones, believed to be those of a man. Upon this evidence, together with their 
 deliberate confession of the fact of the murder and concealment of the body in 
 those places, the prisoners were convicted and sentenced to die. On the same 
 day they applied to the Legislature for a commutation of the sentence of death 
 to that of perpetual imprisonment ; which, as to one of them only, was granted. 
 The confession being now withdrawn and contradicted, and a reward offered 
 for the discovery of the missing man, he was found in New Jersey, and re- 
 turned home in time to prevent the execution. He had fled for fear that they 
 would kill him. The bones were those of some animal. They had been 
 advised by some misjudging friends, that, as they' would certainly be convicted 
 upon the circumstances proved, their only chance of life, by commutation of 
 punishment, depended on their making a penitential confession, and thereupon 
 obtaining a recommendation to mercy. This case, of which there is a Report 
 in the Law Library of Harvard University, is critically examined in a learned 
 article in the North Amer. Rev. vol. x., p. 418 — 429. For another case of fiilse 
 confession, under a promise of pardon, see a case cited in note to WarickshaU's 
 case, 1 Lea. 264, n. 
 
 1 One or other of these motives probably induced Hubert falsely to confess 
 that he set fire to London in 1666. His confession cost Mm his life. See 6 
 How. St. Tr. 807—809, 819—821 ; and WQs. Oir. Bv. 70—75. See, also, 
 General Lee's assertion that he was the ■ author of Junius, as narrated in 
 1 Woodfall's Junius, *122, *123. 
 
 ^ Mr. Joy mentions the case of an innocent person making a false construc- 
 tive confession, in order to fix suspicion on himself alone, that Ms guilty 
 brothers might have time to escape, — a stratagem which was completely suc- 
 cessful ; after which he proved an alibi in the most satisfactory manner. Joy 
 on Oonf. 107 ; 1 Chit. Or. L. 85, S. C. 
 
 '" This is probably the true key to the frequent confessions of the poor 
 wretches who, in the good old times, were wont to be tried for witchcraft. See 
 Mary Smith's case, 2 How. St. Tr. 1049 ; Essex witches, 4 id. 817 ; Suffolk 
 witches, 6 id. 647 ; Devon witches, tried in 1682, 8 id. 1017, 1037. 
 
 ■* Gr. Ev. § 214, n. 2. 
 
CHAP. XV.J DBLIBEEATE COKFESSIONS JUDICIAL CONFESSIONS. 725 
 
 of the most accomplished of modern jurists. " Whilst such anoma- 
 lous cases," says the writer, " ought to render courts and juries at 
 all times extremely watchful of every fact attendant on confessions 
 of guilt, the cases should never be invoked, or so urged by the 
 accused's counsel, as to invalidate indiscriminately all confessions 
 put to the jury, thus repudiating those salutary distinctions which 
 the court, in the judicious exercise of its duty, shall be enabled to 
 make. Such an use of these anomalies, which should be regarded 
 as mere exceptions, and which should speak only in the voice 
 of warning, is no less unprofessional than impolitic ; and should 
 be regarded as offensive to the intelligence both of court and 
 jury."i 
 
 § 865.^ Indeed, all reflecting men are now generally agreed, § 791 
 that deliberate and voluntary confessions of guilt, if clearly proved, 
 are among the most efl'ectual proofs in the law; their value 
 depending on the sound presumption, that a rational being vnll 
 not make admissions prejudicial to his interest and safety, unless 
 when urged by the promptings of truth and conscience.^ Such 
 confessions, therefore, so made by a prisoner to any person, at 
 any time, and in any place, are at common law receivable in 
 evidence,* while the degree of credit due to them must be esti- 
 mated by the jury according to the particular circumstances of each 
 case. 
 
 § 866.^ Confessions may be divided into two classes, namely, x 792 
 judicial and extra-judicial. Judicial confessions are those which 
 are made before the magistrate, or in court, in the due course of 
 legal proceedings ; and it is essential that' they be made of the 
 free will of the party, and with full knowledge of the nature and 
 
 ' 1 HoffHian on Leg. Study, p. 367. 
 
 2 Qr. Ev. § 215, in part. 
 
 ' "Warickshairs case, 1 Lea. 263 ; 2 East, P. 0. 658, S. C. ; Lamte's case, 
 2 Lea. 554, 555 ; Mortimer v. Mortimer, 2 Hagg. Cons. 315 ; Harris v. Harris, 
 2 Hagg. Eo. E. 409 ; 1 Gilb. Ev. 216 ; Dig. lib. 42, tit. 2, de Confess. ; Van 
 Leeuw. Comm. b. v. ob. xxi. § 1 ; 2 Poth. Obi., A$)p. Niunb. xvi. § 13. 
 
 " Lambe's case, 2 Lea. 554 ; M'Nally, Ev. 42, 47, 
 
 * Gr. Ev. § 216, as to first twelve lines. 
 
726 EXTKA-JUDICIAL CONFESSIONS. [PAET II. 
 
 consequences of the confession. Of this kind are the preliminary 
 examinations taken in writing by the magistrate pursuant to 
 statute; and the plea of guilty to an indictment, made in open 
 court. Either of these is sufficient by itself to support a conyic- 
 tion, though followed by a sentence of death, they both being 
 deliberately and solemnly made under the protecting caution and 
 OTersight of the judge. Even on trials for treason or misprision 
 of treason, where the law in its clemency affords to the accused 
 unusual protection, a "willing confession without violence in open 
 court," renders it unnecessary to call witnesses in support of the 
 charge ; ^ and, perhaps, also, — though this would seem to be highly 
 questionable,^ — a confession made during the solemnity of an 
 examination before a magistrate or other person having authority 
 to take it, will, if satisfactorily "proved by two witnesses, be 
 deemed sufficient evidence to warrant a conviction.^ The canon 
 law, too, scrupulous as it is on the subject of evidence, regards 
 a judicial and free confession, made out of prison, and without any 
 just fear or danger, as amounting, in the phrase of the Spiritual 
 Courts, to a plena probatio.* The doctrine of the Eoman law 
 was also to the like effect, — confesses in jure pro judicatis haberi 
 placet ; — and, indeed, it may be deemed a rule of universal juris- 
 prudence.^ 
 
 § 867." Extra-judicial confessions are those which are made by § 793 
 the party elsewhere than before a magistrate, or in court ; this 
 term embracing not only express confessions of crime, but all 
 those admissions and acts of the accused from which guilt may 
 be implied. All voluntary confessions of this kind are receivable 
 in evidence, on being proved Uke other facts ; and this, too, on 
 trials for treason or misprision of treason, in like manner as on 
 
 > 7 W. 3, c. 3, § 2 ; extended to Ireland by 1 & 2 G. 4, c. 24 ; Gregg's ease, 
 
 14 How. St. Tr. 1375. 
 
 2 Berwick's case, Fost. C. L. 10 ; 18 How. St. Tr. 370, S. C. ; R. v. Willis, 
 
 15 How. St. Tr. 624, per Ward, 0. B., and 643, per Eyre, S. G. 
 
 '" Fost. C. L. 240—243. See post, p. 727, n. 1. « Ayliffe Par. 545. 
 
 " Cod. Lib. 7, tit. 59 ; 1 V6th. Obi. pt. iv., ch. 3, § 1, num. 798 ; Van Leeuw. 
 Comm. b. 5, cb. 21, § 2 ; 1 Masc. de Prob., Concl. 344. 
 ° Gr. Ev. § 216, as to first five lines. 
 
CHAP. XV.] CONFESSIONS PEOOF OF CORPUS DELICTI. 727 
 
 ordinary indictments ; except, only, that, on these more seriotis 
 occasions, they will not supply the want of the two witnesses, 
 whose testimony is required by the Act of William the Third. 
 Consequently, whether these confessions be proyed by one witness 
 or two, they can only be treated as corroborative evidence of the 
 overt act charged;^ unless such overt act be the assassination of 
 the Queen, or any attempt to injure her person, in which event 
 the accused may be convicted on the same evidence as an ordinary 
 murderer.^ 
 
 § 868.^ Whether, on ordinary indictments for felony or mis- § 794 
 demeanor, extra-judicial confessions, uncorroborated by any other 
 proof of the corpus delicti* are of themselves sufficient to justify 
 a conviction of the prisoner, has been gravely doubted. In the 
 Eoman law, such naked confessions amounted only to a semiplena 
 probatio, upon which alone no judgment could be founded ; and 
 at most, the accused, in particular cases, could only be put to the 
 torture. But if voluntarily made in the presence of the injured 
 party, or if reiterated at different times in his absence, and per- 
 sisted in, they were received as plenary proof.^ In each of the 
 English cases usually cited in favour of the sufficiency of this 
 evidence, some corroborating circumstance will be found.^ Thus, 
 in the case of Eldridge,'' who was indicted for horse-stealing, the 
 horse was found in his possession, and he had sold it for 12L, after 
 asking 35Z., which was its fair value. In the case of FaUmer 
 and Bond,^ the person robbed was called upon his recognizance, 
 and it was proved that one of the prisoners had endeavoured 
 to send a message to him to keep him from appearing. In 
 
 1 E. ■». Willis, 15 How. St. Tr. 623—625 ; Fost. C. L. 240—243 ; E. v. 
 Crossfield, 26 How. St. Tr. 55—57. 
 
 2 39 & 40 G. 3, c. 93 ; 1 & 2 G. 4, c. 24, § 2, Ir. ; 5 & 6 V., c. 51, § 1. 
 ' Gr. Bv. § 217, in part. 
 
 * As to wlien the corpus delicti need not be proved, see ante, § 141. See, 
 also, E. V. Unkles, I. E., 8 C. L. 50. 
 
 '^ Everh. Cone, Concl. xix. 8, Ixdi. 5, cxxxi. 1, clxiv. 1, 2, 3, clxxxvi. 2, 3, 
 11 ; 1 Masc. de Prob., Concl. 347, 349 ; Van Leeuw. Comm. b. 5, ch. 21, §§4, 
 5 ; Carpz. Pract. Ear. Cr., Pars II., Quaest. 60, n. 8. 
 
 « See E. V. Sutoliffe, 4 Cox, 270. ' E. & E. 440. 
 
 s Id. 481. 
 
728 CONFESSION OF ADULTERY. [PAKT II. 
 
 White's case^ there was strong circumstantial evidence, both of 
 the larceny of the oats from the prosecutor's stable, and of the 
 prisoner's guilt ; and in the case of Tippet,^ who was indicted for 
 the same larceny, part of this evidence was also given, together 
 with the additional proof that the prisoner was an under-ostler in 
 the same stable. In all these cases, too, except that of Falkner 
 and Bond, the confessions were solemnly made before the ex- 
 amining magistrate, and taken down in due form of law ; while 
 the confessions of Falkner and Bond were repeated, once to the 
 officer who apprehended them, and again on hearing the depo- 
 sitions read over which contained the charge. So, in Stone's 
 case,^ which is a very brief note, it does not appear that the 
 corpus delicti was not otherwise proved ; on the contrary, the 
 natural inference from the report is, that it was. Wheeling's 
 case, indeed, seems to be an exception ; but it is far too briefly 
 reported to be relied on as an authority, for it merely states that 
 "in the case of John Wheeling, tried before Lord Kenyon, at 
 the Summer Assizes at Salisbury, 1789, it was determined that 
 a prisoner may be convicted on his confession, when proved by 
 legal testimony, though it is totally uncorroborated by any other 
 evidence."* In the United States, the prisoner's confession, 
 when the corpus delicti is not otherwise proved, has been 
 held insufficient to warrant his conviction ; and this opinion 
 certainly best accords with the humanity of the criminal law, 
 and with the great degi-ee of caution applied in receiving and 
 weighing the evidence of confessions in other cases. Moreover, 
 it seems countenanced by approved writers on this branch of the 
 law.^ 
 
 § 869. Whatever may be the correct rule with respect to § 794a 
 uncorroborated confessions as recognised by courts of criminal 
 jurisdiction, the Divorce Division has held, that a decree for the 
 dissolution of marriage can legally rest on the respondent's 
 
 ' E. & K. 508. 2 Id. 509. 
 
 3 Dyer, 215, pi. 50. ■• 1 Lea. 311, n. 
 
 * Guild's case, 5 Halst. 168, 185 ; Long's case, 1 Hayw. 524 (455) ; 4 Hawk. 
 P. C. 425, B. 2, 0. 46, § 36 ; 2 Russ. C. & M. 825, 826, n. 5. ; and R. ■;;. Edgar, 
 there cited. 
 
CHAP. XV.] WHOLE STATEMENT MUST BE CONSIDEEED. 729 
 
 admission of adultery, though unsupported by any confirmatory 
 evidence.^ Still, proof of this nature ought to be received with 
 the utmost caution, and no judge would feel justified in acting 
 upon it, unless the admission bore internal evidence of being trust- 
 worthy, and, moreover, amounted to an unequivocal acknowledg- 
 ment of adultery.^ 
 
 § 870.^ In the proof of confessions, — as in the case of admissions § 795 
 in civil causes,* — the whole of what the prisoner said on the subject, 
 at the time of making the confession, should be taken together. 
 This rule is the dictate of reason, as well as of humanity. The 
 prisoner is supposed to have stated a proposition respecting his 
 own connection with the crime ; but it is not reasonable to assume, 
 that the entire proposition, with all its limitations, was contained 
 in one sentence, or in any particular number of sentences, exclud- 
 ing all other parts of the conversation. As the meaning of a 
 writing must, in civil cases, be collected from the whole taken 
 together, and as, when several instruments relating to the same 
 matter have been executed at one time, they are all resorted to for 
 the purpose of ascertaining the intention of the parties ; so here, if 
 one part of a conversation is relied on, as proof of a confession of 
 the crime, the prisoner has a right to lay before the court the 
 whole of what was said in that conversation ; or at least so much 
 as is explanatory of the part already proved,- and perhaps, infavorem 
 vitffi, all that was relative to the subject-matter in issue.^ For, as 
 already observed respecting admissions,^ unless the whole is con- 
 sidered, the true meaning of the part which is evidence against him 
 cannot be ascertained. 
 
 § 871. But if, after the entire statement of the prisoner has been § 795 
 
 1 Eobinson v. Robinson & Lane, 1 Swab. & Trist. 362 ; 27 L. J., Pr. & Mat. 
 91, S. C. ; Williams v. Williams & Padfield, 35 L. J., Pr. & Mat. 8 ; 1 Law 
 Eep., P. & D. 29, S. C. ; Le Maichant v. Le Marcliant & Kadoliff, 45 L. J., 
 P. D. & A. 43. 2 la. 
 
 3 Gr. Ev. § 218, in great part. * Ante, §§ 725—734. 
 
 5 Per Ld. C. J. Abbott, in Tlie Queen's case, 2 B. & B. 297, 298 ; as qualified 
 by the court in Prince v. Samo, 7 A. & E. 634, 635 ; E. v. Jones, 2 C. & P. 629 ; 
 B. V. Higgins, 2 C. & P. 603. 
 
 ^ Ante, §§ 725 — 729, and cases tliere cited. 
 
730 . CONFESSIONS IMPLICATING OTHEE PEESONS. [PAET II. 
 
 given in evidence, the prosecutor can contradict any part of it, he 
 is at liberty to do so ; and then the whole testimony is left to the 
 jury for their consideration, precisely as in other cases where one 
 part of the evidence is contradictory to another.^ Even without 
 such contradiction it is not to be supposed that all the parts of a 
 confession are entitled to equal credit. The jury may believe that 
 part which charges the prisoner, and reject that which is in his 
 favour, if they see suficient grounds for so doing.^ If what he 
 said in his own favour is not contradicted by evidence offered by 
 the prosecutor, nor is improbable ia itself, it will be naturally 
 believed by the jury ; but they are not bound to give weight to it 
 on that account, being at liberty to judge of it, like other evidence, 
 by all the circumstances of the case.' And if the confession 
 implicate other persons by name, still it must be proved as it was 
 made, not omitting the names ; but the judge will instruct the 
 jury, that it is not evidence against any one but the prisoner who 
 made it.* This last proposition was strikingly illustrated in the 
 case of Robinson v. Robinson and Lane,^ which was a suit for 
 dissolution of marriage on the ground of the wife's adultery, 
 and in which a private diary kept by her, describing her intri- 
 gues with the co-respondent, was received as a confession against 
 herself, though it was held to be inadmissible as evidence against 
 her paramour. 
 
 § 872.^ Before any confession can be received in evidence in a § 796 
 criminal erase, it must be shown to have been voluntarily made; for, 
 — to adopt the somewhat inflated language of Chief Baron Eyi'O, — 
 
 1 R. V. Jones, 2 C. & P. 629. 
 
 2 E. V. Higgins, 3 C. & P. 603, per Parke, J. ; E. v. Steptoe, 4 0. & P. 397, 
 per Paxk, J. ; Eesp. v. McCarty, 2 Ball. 86, 88. 
 
 3 Per Littledale, J., in E. v. Clewes, 4 C. & P. 221. 
 
 1 E. ■u.'Hearne, 4 C. & P. 215, per Littledale, J. ; E. v. Clewes, id. 221, 225, 
 per id. ; E. v. Fletcher, id. 250, per id. ; 1 Lew. C. C. 107, S. 0. ; E. v. Hall, 
 1 Lew. C. C. 110, per Alderson, B. ; R. v. Foster, id. per Ld. Denman ; E. 
 V. WaMey, 6 C. & P. 175, per Gurney, B., who said it had been much con- 
 sidered by the judges ; Parke, J., thought otherwise in Barstow's case, 1 Lew. 
 C. C. 110. 
 
 ^ 27 L. J., Pr. & Mat. 91 ; 1 Swab. & Trist. 362, S. C. 
 
 ^ Gr. Ev. § 219, in part. 
 
CHAP. XV.] CONFESSIONS MUST BE VOLUNTARY. 731 
 
 " a confession, forced from the mind by the flattery of hope, or by 
 the torture of fear, comes in so questionable a shape, when it is 
 to be considered as the evidence of guilt, that no credit ought 
 to be given to it; and therefore it is rejected."-^ The material 
 question, consequently, is, whether the confession has been ob- 
 tained by the influence of hope or fear ; and the evidence to this 
 point, being in its nature preliminary, is, — as we have seen,^ — ad- 
 dressed to the judge, who will require the prosecutor to show 
 affirmatively, to his satisfaction, that the statement was not made 
 under the influence of an improper inducement, and who, in the 
 event of any doubt subsisting on this head, will reject the confes- 
 sion.^ As the admission or rejection of a confession rests wholly 
 in the discretion of the judge, it is difficult to lay down particular 
 rules, a priori, for the government of that discretion ; and the more 
 so, because much must necessarily depend on the age, experience, 
 intelHgence, and character of the prisoner, and on the circumstances 
 under which the confession was made.* Language sufficient to 
 overcome the mind of one, may have no effect upon that of 
 another ; a consideration which may serve to reconcile some con- 
 tradictory decisions, where the principal facts appear similar in the 
 reports, but the lesser circumstances, though often very material in 
 such preliminary inquiries, are omitted. Still, it cannot be denied, 
 that this rule has been sometimes extended much too far, and 
 been applied to cases where no reason could be given for supposing 
 that the inducement had had any influence upon the mind of the 
 prisoner.^ 
 
 § 873. Difficult as it is to lay down any definite rule on this § 797 
 subject, which can be used as an unerring guide in every supposable 
 case, there are stUl some points, both in regard to the person by 
 whom the promise or threat is made, and also in regard to the 
 nature of the inducement itself, on which the judges appear to be 
 
 1 In Wariotsliall's case, 1 Lea. 263, 264 ; McNally, Ev. 47 ; Knapp's case, 
 10 Pick. 489, 490 ; Chabbock's case, 1 Mass. 144. 2 Ante, § 23. 
 
 3 E. V. Warringliain, 2 Den. 447, per Parke, B. 
 
 ,* McNally, Ev. 43 ; Nute's case, 6 Petersd. Abr. 82 ; Knapp's case, 10 Pick. 
 496. 
 
 * See tlie observations of tlie judges in R. v. Baldry, 2 Den. 430. 
 
732 PEOMISE OE THEEAT BY PEESON IN AUTHOEITY. [PAET II. 
 
 pretty generally agreed, and a knowledge of which will materially 
 assist the inquiry, whether any particular confession should be 
 admitted in evidence or rejected. And^ first, as to the person by 
 whom the inducement is offered. Here it is very clear, that if the 
 promise or threat be made by any one having authority over the 
 prisoner in connexion with the prosecution,^ — as, for instance, by 
 the prosecutor,^ the master or mistress of the prisoner, when the 
 oflfence concerns such master or mistress,* the constable,^ or other 
 of&cer,^ having him in custody, a magistrate,'^ or the like,^ — the 
 confession wiU be rejected as not being voluntary. And the same 
 rule will perhaps prevail, though the inducement was not actually 
 offered by the person in authority, if it were held out by any one in 
 his presence, and he by his silence has sanctioned its being made.^ 
 
 § 874. In these cases, as the authority possessed by the persons § 798 
 
 1 Gr. Ev. § 222, in part. 
 
 ' R. V. Pairatt, 4 C. & P. 570, per Alderson, B., whioli was a confession by 
 a sailor to Ms captain, who threatened him with prison on a charge of stealing 
 his watch ; E. ■;;. Thompson, 1 Lea. 291 ; E. v. Fleming, 1 Arm. M. & 0. 330. 
 
 3 E. V. Cass, 1 Lea. 293, n. a, per Gould, J. ; E. v. Jones, E. & E. 152 ; E. 
 V. Jenkins, id. 492. 
 
 ^ E. V. Moore, 3 C. & Kir. 153 ; 2 Den. 522, 527, S. C. ; E. v. Warringham, 
 2 Den. 447, n. ; E. v. Upchuroh, 1 Moo. C. C. 465 ; E. v. Taylor, 8 C. & P. 
 734, per Patteson, J. ; E. v. Hearn, C. & Marsh. 109, per Coltman, J. ; E. v. 
 Hewett, id. 534, per Patteson, J. 
 
 = E. V. Morton, 2 M. & Rob. 514, per Coleridge, J. ; E. v. Swatkins, 4 
 C. & P. 548, per Patteson, J. ; E. v. Mills, 6 id. 146, per Gumey, B. ; E. v. 
 Shepherd, 7 id. 579, per Gaselee, J. 
 
 " In E. V. Enoch, 5 C. & P. 539, Park and Taunton, Js., rejected a confession, ■ 
 where the prisoner was left in charge of a woman, to whom she confessed ; and 
 in R. V. Windsor, 4 Fost. & Fin. 366, Channell, B., and Crompton, J., laid 
 down the law in a similar manner. Sed qu., and see E. v. Sleeman, Pearce 
 & D. 249 ; and R. v. Vernon, 12 Cox, 153. 
 
 7 R. V. Drew, 8 C. & P. 140, per Coleridge, J. ; E. v. Cooper, 5 C. & P. 535, 
 per Parke, J. ; Guild's case, 5 Halst. 163. 
 
 ^ Qu. a surgeon ; see E. v. Kingston, 4 C. & P. 387 ; E. v. Garner, 3 Sess. 
 Cas. 329 ; 1 Den. 329 ; 2 C. & Kir. 920, S. C. In this last case, the inducement 
 was held out by a surgeon, but in the presence of the prisoner's master. Qu. 
 also, the husband of the prisoner, E. v. Laugher, 2 C. & Kir. 225. 
 
 ^ E. V. Pountney, 7 C. & P. 302, per Alderson, B. ; E. v. Taylor, 8 C. & P. 
 734, per Patteson, J. ; E. v. Drew, 8 C. & P. 140, per Coleridge, J. ; R. v. 
 Simpson, 1 Moo. C. C. 410, explained in Joy on Conf 9—11 ; R. v. Laugher, 
 2 C. & Kir. 225, per Pollock, C. B. ; R. v. Luckhurst, Pearce & D. 245. But 
 see R. V. Parker, L. & Cave, 42 ; 8 Cox, 465, S. C. 
 
CHAP. XV.] INDUCEMENT HELD OUT BY PEIVATE PERSON. 733 
 
 ■who make or sanction the inducement is calculated both to animate 
 the prisoner's hopes of favour, on the one hand, and, on the other, 
 to inspire him with awe, and in some degree to overcome the powers 
 of his mind, the law assumes the possibility, if not the probability, 
 of his making an untrue admission, and, consequently, withdraws 
 from the consideration of the jury any declaration of guilt, which 
 the prisoner under these circumstances may be induced to make. 
 Moreover, — and this is a more sensible reason for the rule, — the 
 admission of such evidence would naturally lead the inferior agents 
 of the police, while seeking to obtain a character for activity and 
 zeal, to harass and oppress unfortunate prisoners, in the hope of 
 wringing from them a reluctant confession. It has been argued, 
 with apparent reason, that a confession made upon the promises or 
 threats of a person, assuming to act in the capacity of an officer or 
 magistrate, and erroneously beHeved by the prisoner to possess such 
 authority, ought, upon the above principles, to be excluded ; but 
 the point is not known to have received any judicial consideration. 
 
 § 875.^ Whether a confession made to a person, who having no § 799 
 authority has held out an inducement, will be receivable, is a ques- 
 tion upon which learned judges are known to entertain opposite 
 opinions.^ On two occasions, Mr. Justice Bosanquet distinctly 
 held that the fact of any person telling a prisoner that it would be 
 better for him to confess, would always exclude any confession 
 made to that person ; ^ and one or two other cases may perhaps be 
 cited in support of the same view.* On the other hand, Mr. Justice 
 
 » Gr. Ev. § 223, in part. 
 
 2 R. V. Spencer, 7 0. & P. 776, per Parke, B. See, also, R. v. Pountney, id. 
 302, per Alderson, B. ; R. v. Gibbons, 1 C. & P. 98, n. 6. 
 
 3 R. V. Dunn, 4 C. & P. 543 ; R. v. Slaugbter, id. 544, n. h. In R. v. 
 Downing, Cbebnsford Sp. Asa. 1840, MS., where a woman was indicted for 
 child-murder, a confession made by her to an elderly woman, who was her 
 neighbour and nurse, and who told her it was better for her to confess, was 
 held by Ld. Abinger to be inadmissible ; and his lordship refused to admit 
 evidence of a confession subsequently made to a surgeon. Sed qu. 
 
 * For instance, R. v. Kingston, 4 C. & P. 387, where Parke and Littledale, 
 Js., rejected a confession made to a surgeon who had held out an inducement. 
 Perhaps, however, this case may rest on the ground that the surgeon was a 
 person in authority. In R. v. Walkley, 6 0. c& P. 175, where evidence of a 
 confession was held inadmissible by Gurney, B., it does not appear, whether 
 
734 INDUCEMENT HELD OUT BY PBIVATB PEESON. [PAET II. 
 
 Patteson is reported to have said, in a more recent case, that, in 
 the opinion of the judges, any confession is receivable, unless some 
 inducement has been held out by a T^erson in authority ; and his 
 lordship added, with reference to the particular facts of the case 
 before him, that he would have received in evidence the statement 
 made by the prisoner to an indifferent person, had the inducement 
 been offered by such person alone^. 
 
 § 876. Both these contradictory decisions would seem to be open § 800 
 to one and the same objection ; namely, they endeavour to define, 
 as a strict rule of law, what circumstances shall be deemed, in all 
 cases, to have unduly influenced the mind of the prisoner in making 
 the confession. Now, although such a rule has been laid down 
 with reference to inducements offered by persons in authority, 
 because, being thought to succeed in a large majority of instances, 
 it has, for the sake of uniformity and precision, been wisely adopted 
 as applicable to them all ; yet it by no means follows, that the same 
 rule will equally apply to all promises and threats held out by 
 private persons. These last inducements may vary in their effect 
 to almost any conceivable extent. They will often be obviously 
 insufficient to produce the slightest influence on even the feeblest 
 mind ; and, in such cases, the confession which follows, but which, 
 in fact, is not consequent on them, should be admitted in evidence. 
 On the other hand, an inducement held out by a private individual 
 may be, and, indeed, frequently is, quite as much calculated to 
 cause the prisoner to utter an untrue statement, as any promise 
 made to him by a person in authority ; in these cases, the con- 
 fession made to such private person should be excluded. It is 
 therefore submitted, that, without laying down any positive rule, 
 whether of admission or rejection, the judge should determine each 
 case on its own merits ; only bearing in mind, that his duty is to 
 reject such confessions only, as would seem to have been wrung 
 from the prisoner, under the supposition that it would be best for 
 
 or not the witness, to whom the statement was made, and who had ofifered the 
 inducement, was a person in authority ; and the same observation applies to 
 the case of E. v. Thomas, id. 353, per Patteson, J. See, also. Guild's case, 
 5 Halst. 163 ; and Knapp's case, 9 Pick. 496, 500—510. 
 ' R. V. Taylor, 8 C. & P. 734 ; R. v. Sleeman, Pearce & D. 249. 
 
CHAP. XV.] CONFESSION MADE AFTER INDUCEMENT HELD OUT. 735 
 
 him to admit that he was guilty of an offence which he really never 
 committed.^ 
 
 § 877.^ Be the law, however, on this particular point what it § 801 
 may, thus much is clear, that a promise or threat made by an 
 indifferent person, who has officiously interfered without any kind 
 of authority, will never operate to exclude a confession made to any 
 other person, who has not himself sanctioned the inducement.^ 
 This rule is founded, partly, on the supposition that such induce- 
 ments will seldom much influence the conduct of the prisoner ; but 
 chiefly, on the ground that, were a contrary rule to prevail, it would 
 probably open a wide door to collusive practices, and would cer- 
 tainly go far towards rendering all confessions inadmissible. 
 Prisoners, who wished to avoid the consequences of their inconve- 
 nient acknowledgments of guilt, might with ease find associates 
 ready to affirm, that they had advised them to confess ; and even if 
 this stratagem were not attempted, injudicious advice given by 
 meddling persons, would frequently have the effect of shutting out 
 a distinct and positive confession, and of thus embarrassing the 
 course of criminal justice. 
 
 § 878. Where promises or threats have been once used of such a § 802 
 nature as to render a confession inadmissible, all subsequent admis- 
 sions of the same or the like facts will be rejected, unless from the 
 length of time intervening, from proper warning of the consequences, 
 or from other circumstances, there be good reason to presume, that 
 the delusive hope or fear which influenced the first confession has 
 been effectually dispelled.* Where, ^ however, it appears^ to the 
 
 1 E. V. Court,, 7 C. & P. 487, per Littledale, I. 2 Qj,_ gy. § 223, in part. 
 
 3 R. V. GibTaons, 1 C. & P. 87, per Park, J., and Hullook, B. ; E. u Hard- 
 wick, id. 98, n. 6, per Wood, B. ; R. v. Eow, K & E. 153 ; E. 0. Tyler, 1 C. & P. 
 129, per Htdlock, B. 
 
 * Joy on Conf. 69 ; .Guild's case, 5 Halst. 180 ; E. v. Hewett, C. & Marsk. 
 534, per Patteson, J., recognising MeyneU's case, 2 Lew. G. C. 122, per Taunton 
 J. ; Sherrington's case, id. 123, per Patteson, X ; E. v. Cooper, 5 C. & P. 535 
 per Parke, J. ; Bell's case, cited in Joy on Conf. 71, and in McNally, Ev. 43 
 per Ld. Kilwarden, C. J., and Carleton, C. J. of C. P. ; E. v. Eosa Eue, 13 Cox, 
 209 ; Roberts' case, 1 Dev. 259, 264 ; E. «. Walsh, Ir. Cir. E. 866, per 
 Jackson, J. * Gr. Ev. § 221, in part. See E. v. Doherty, 13 Cox, 23. 
 
736 CONFESSION MADE APTEB INDUCEMENT HELD OUT. [PAET II.. 
 
 satisfaction of the judge, that the improper i?i/?Mence was totally done 
 away before the confession was made, the evidence will be received.^ 
 Thus, where a magistrate told a prisoner charged with murder, 
 that if he was not the man who struck the fatal blow, and would 
 disclose all he knew respecting the matter, he would use his in- 
 iiuence to protect him ; but on subsequently receiving a letter from 
 the Secretary of State refusing mercy, he communicated its contents 
 to the prisoner, it was held that a confession, which the prisoner 
 afterwards made to the coroner, who had also duly cautioned him, 
 was clearly voluntary, and as such it was admitted.^ So, where the 
 accused had been induced by promises of favour to make a confes- 
 sion, which was for that cause excluded, but some months after- 
 wards, and after he had been solemnly warned by two magistrates 
 that he must expect death and prepare to meet it, he again fully 
 acknowledged his guilt,- this latter confession was received in 
 evidence.* Indeed, it may be generally laid down, that, though an 
 inducement has been held out by an officer, a prosecutor, or the 
 like, and though a confession has been made in consequence of such 
 inducement, still, if the prisoner be subsequently warned by a 
 person in equal or superior authority, that what he may say will be 
 evidence against himself, or that a confession will be of no benefit 
 to him, — or if he be simply cautioned by the magistrate not to say 
 anything against himself, — any admission of guilt afterwards made, 
 will be received as a voluntary confession.* More doubt may be 
 entertained as to the law, if the promise has proceeded from a 
 person of superior authority, as a magistrate, and the confession 
 is afterwards made to an inferior officer ; because a caution from 
 this latter person might be insufficient to efface the expecta- 
 tion of mercy, which had previously been raised in the prisoner's 
 mind.^ 
 
 1 See E. V. Cheverton, 2 Post. & Fin. 833. 
 
 2 R. V. Clewes, 4 C. & P. 221, per Littledale, J. See, also, E. v. Dinslev 
 1 C. & Kir. 637. * 
 
 ^ Guild's case, 5 Halst, 163, 168. 
 
 ^ R. V. Howes, 6 C. & P. 404, per Ld. Denman ; R. v. Lingate, 1 Ph. Ev. 
 410 ; R. V. Rosier, id. 410, 411 ; R. v. Bryan, Jebb, 0. C. 157 ; Joy on Conf 
 V2— 74. See R. e. Richards, 5 C. & P. 318. 
 
 * R. V. Cooper, 5 C. & P. 535, per Parke, J. 
 
CHAP. XV.] THE INDUCEMENT MUST REFER TO THE CHARGE. 737 
 
 § 879. Passing now to the nature of the inducement, it may § 803 
 be laid down as a general rule, that in order to exclude a con- 
 fession, the inducement, whether it assume the shape of a pro- 
 mise, a threat, or mere advice, must have reference to the prisoner's 
 escape from the criminal charge against him. It is not here 
 meant that at the time when the inducement is held out, the 
 charge against the prisoner must actually have been made ; for 
 where a man was threatened to be given into custody without 
 any offence being then specified, but afterwards the nature of the 
 charge was stated, and he confessed his guilt, the judges held that 
 the confession was not admissible.^ Still, the promise or threat, 
 to have the effect of excluding the statement, must be such as is 
 calculated to influence the prisoner's mind with respect to his 
 escape from the charge. A confession, therefore, will be received, 
 though it were induced by spiritual exhortations, whether of a . 
 clergyman,^ or of any other person ; ^ for such a confession can 
 scarcely be regarded as untrue ; and the law of England, Ireland, 
 and America, — unlike that which prevails in Scotland,* or in other 
 countries subject to the Eoman law," — does not, as will presently 
 be pointed out,^ regard penitential confessions to a priest in the 
 light of privileged communications. 
 
 > E. V. Luckhurst, Pearce & D. 245. 
 
 2 R. 0. Gilham, 1 Moo. C. 0. 186 ; explained in Joy on Conf. 52 — 56 ; Com. 
 V. Drake, 15 Mass. 161. But see R. •». Griffin, 6 Cox, 219, cited post, § 917, ad 
 fin. n. 5. 
 
 3 E. V. Wild, 1 Moo. C. C. 452 ; R. v. Nute, 2 Russ. C. & M. 832, 833 ; 
 recognised in. R. ■». Hewett, C. & Marsh. 536, per Patteson, J. ; R. v. Gibney, 
 Jebb, C. C. 15 ; E. v. Sleeman, Pearce,& D. 249. 
 
 * 2 Alison, Cr. L. of Scot. 586, cited in Joy on Conf. 57, n. a, 58. 
 
 * In the Roman law penitential confessions to the priests are encouraged for 
 the relief of the conscience, and the priest is bound to secrecy by the peril of 
 punishment. " Confessio coram sacerdote in poenitentia facta non probat in 
 judicio ; quia censetur facta coram Deo; imo, si sacerdos eam enunciet, incidit 
 in pcenam." 1 Masc. de Prob., Concl. 377. It was lawful, however, for the 
 priest to testify in such cases to the fact, that the party had made such a 
 penitential confession to him as the Chuich requires, and that he had enjoined 
 penance upon him ; and, with the express consent of the penitent, he might 
 lawfully testify to the substance of the confession itself. Id. 
 
 6 Post, §§ 916, 917. 
 
 3 B 
 
738 THE INDUCEMENT MUST RELATE TO THE CHARGE. [PAET II. 
 
 § 880. Again, a promise of some merely collateral benefit or § 803 
 boon, as for instance, a promise to give the prisoner some spirits,^ 
 or to strike off his hand-cuffs,^ or to let him see his wife,^ will not 
 be deemed such an inducement as will authorise the rejection of a 
 confession made in consequence. Neither will an inducement 
 held out to a prisoner with reference to one charge, exclude a 
 consequent confession which relates to another ; * unless the two 
 offences be so blended together as to constitute in reality but one 
 transaction.^ So, where a woman was indicted for concealing the 
 birth of her child, her acknowledgment that she had been confined 
 has in Ireland been received in evidence, though made in conse- 
 quence of the doctor having threatened that he would examine her 
 person.^ It is right, however, to add that, under precisely similar 
 circumstances, two EngHsh judges of ability have refused to admit 
 evidence so obtained,'' and, consequently, this last point must be 
 considered as one still open to debate. Be this as it may, confes- 
 sions will in general be admitted, though caused by intimidating 
 language, provided the intimidation has had no reference to the ' 
 charge, and was not otherwise calculated to produce any untrue 
 statement.^ 
 
 § 881." Moreover, if no inducement has been held out relating §804 
 to the charge, it matters not in what way the confession has been 
 obtained ; for whether it were induced by a solemn promise of 
 secrecy, even confirmed by an oath ; ^° or by reason of the prisoner 
 having been made drunken ; ^^ or even, by any deception practised 
 
 ' E. V. Sexton, cited in Joy on Conf. 17— 19, is to the contrary ; but this 
 case, which was decided by Best, J., is probably not kw. See observations of 
 Mr. Greaves in 2 Euss. C. & M. 827, n. h. 
 
 ^ E. D. Green, 6 C. & P. 655, per Bosanquet and Taunton, Js. 
 
 3 E. V. Lloyd, 6 C. & P. 393, per Patteson, J. 
 
 ' E. V. "Warner, cited 2 Euss. C. & M. 845, per Littledale, J. 
 
 ' E. V. Hearn, C. & Marsh. 109, per Ooltman, J. 
 
 " E. V. Cain, 1 Craw. & D., C. C. 37. 
 
 ' E. V, Bowden, decided at the Liverpool Assizes, Dec. 1859, by Martin, B., 
 after consulting Willes, J. ; MS. ex relatione, Mr. Ch. Hy. Hopwood. 
 
 *• See E. V. Thornton, 1 Moo. C. 0. 27, 28. ' Gr. Ev. § 229, in part. 
 
 '» E. ,;. Shaw, 6 C. & P. 372, per Patteson, J. ; Com. v. Knapp, 9 Pick. 496, 
 500—510. 
 
 " E. V. SpUsbury, 7 C. & P. 187, per Coleridge, J., qu. on the ground that 
 
CHAP. XV.] CONFESSIONS MAY BE ELICITED BY QUESTIONS. 739 
 
 upon him, or false representation made to him for that purpose ; ^ 
 it will be equally admissible, however much the mode of obtaining 
 it may be open to censure, or may render the statement itself 
 liable to suspicion. Much less will a confession be rejected, 
 merely because it has been elicited by questions put to the 
 prisoner, whether by a magistrate,^ officer,^ or private person ; * 
 and the form of the question is immaterial, even though it assumes 
 the prisoner's guilt. ^ So, if a prisoner makes a confession under 
 the hope, held out by a person not in authority, that he will 
 thereby be admitted as Queen's evidence, it will be received 
 against him ; ^ and the same result will follow, though his hopes 
 have been excited by a constable or other ofScer, if on the trial 
 of his accomplices he refuses to make a full disclosure, and thus 
 violates the condition on which his claim to favour can alone 
 rest.'' So, what the accused has been overheard muttering to 
 himself, or saying to his wife or to any other person in confidence, 
 
 in vino Veritas. In the case of R. v. Sippet, which was tried at Maidstone Ass. 
 1839, a confession, made by the prisoner while talking in his sleep, was 
 tendered in evidence ; hut as Tindal, C. J., doubted its admissibility, it was 
 withdrawn, MS. 
 
 > E. V. Derrington, 2 C. & P. 418, per Garrow, B. ; E. v. Burley, 2 St. Ev. 
 13, n. z, and 37, per Garrow, B., afterwards confirmed by all the judges. 
 
 2 E. V. Eees, 7 C. & P. 569, per Ld. Denman ; E. v. Bartlett, id. 832, per 
 BoUand, B. ; E. v. Ellis, Ey. & M. 432, per Littledale, J., citing a similar 
 decision of Hoboyd, J., and overruling E. v. Wilson, Holt, N. P. E. 597, per 
 Eiohards, C. B. 
 
 3 E. V. Thornton, 1 Moo. 0. 0. 27 ; E. v. Gibney, Jebb, C. 0. 15 ; E. ■;;. 
 Kerr, 8 C. & P. 176 ; E. v. Johnston, 15 Ir. Law E., N. S. 60, per 8 •». 3 Js. 
 The case of E. v. DevHn, 2 Crawf. & D., C. C. 152, is contrS,, but seems not to 
 be law. 
 
 * E. V. WUd, 1 Moo. C. C. 452. 
 
 5 E. V. Wild, 1 Moo. C. C. 452 ; E. v. Thornton, id. 27 ; E. v. Kerr, 8 0. & P. 
 179, per Park, J. ; Anon., per Littledale, J., cited 1 Ph. Ev. 406. In the case 
 of E. V. Doyle, 1 Crawf. & D., C. C. 396, a constable, after cautioning the 
 prisoner, asked her how so much of her blue came into the child's stomach, 
 and Bushe, C. J., is reported to have rejected the answer ; but this case, it is 
 submitted, is not law. See Joy on Conf. 32 — 41, 42 — 44. 
 
 « E. V. Berigan, Ir. Cir. E. 177, per Crampton, J. This case seems to over- 
 rule E. V. Hall, 2 Lea. 560, n., per Mr. Sergt. Adair. See E. v. Boswell, C. 
 & Marsh. 584 ; E. v. Blackburn, 6 Cox, 333. See, also, post, § 885. 
 
 ? E. V. Dingley, 1 C. & Kir. 640, per Pollock, C. B. ; E. v. Burley, 2 St. Ev. 
 13, n. K, approved of by all the judges. See E. v. Gillis, 11 Cox, 69. 
 
 3 B 2 
 
740 HOW FAB PEOPEE TO CAUTION PEISONEE. [PART II. 
 
 will be receivable in evidence;^ thougb the wife, solicitor, and 
 counsel of the prisoner will not, on grounds that will be presently 
 explained, be themselves allowed to reveal what he has said to 
 them.^ A voluntary confession, too, is admissible, to whom- 
 soever it may have been made, though it does not appear that 
 the prisoner was warned that what he said would be used against 
 him ; nay, though it appears on the contrary that he was not so 
 warned.^ 
 
 § 882. In most cases, indeed, it may be advisable and proper § 805 
 to caution the prisoner in general terms, that any confession he 
 makes will be admissible against him at the trial, and can do 
 him no service;* because, if it should turn out that any threat 
 or inducement has been previously held out by some person in 
 authority, the confession, which is unaccompanied by such caution, 
 will, as before stated,^ be inadmissible. Still, it is not necessary, 
 in general, to do more than to show that the party receiving the 
 confession left the prisoner at full liberty to act and judge for 
 himself ; and though it should appear that immediately before the 
 admission was made the accused was in the custody of another 
 person, the court, unless some reason exists for suspecting collu- 
 sion, will not compel the prosecutor to call such person as a 
 witness, or to prove that he did not hold out any threat or induce- 
 ment.^ In order, however, to free the evidence from all reason- 
 able objection, it will be prudent, especially in important cases, 
 to call any persons in authority, who, shortly before the confession 
 
 ' R. V. Simons, 6 0. & P. 541, per Alderson, B. In R. v. Pamenter, 12 Cox, 
 177, Kelly, 0. B., is reported to have held that a letter written by a prisoner 
 to his wife, and intercepted by a constable who had undertaken to post it, was 
 inadmissible. But this case would seem not to be law. 
 
 2 Post, §§ 909—915 ; R. v. Shaw, 6 0. & P. 373, per Patteson, J. 
 
 3 B. V. Thornton, 1 Moo. 0. C. 27 ; R. v. Gibney, Jebb, C. 0. 15, 17, 18, 20 ; 
 R. V. MagiU, cited in McNally, Ev. 38 ; R. v. Long, 6 0. & P. 179, per Gurney, 
 B. ; Joy on Conf. 45 — 48 ; R. v. Lavin, Ir. Cir. R. 813, per Perrin, J. 
 
 ^ R. V. Green, 5 C. & P. 312, per Gurney, B. ; R. v. Arnold, 8 C. & P. 622, 
 per Ld. Denman ; R. ■«. O'Reilly, Ir. Cir. R. 718, per Ball, J. 
 
 * Ante, § 878. 
 
 " R. 11. Clewes, 4 C. & P. 423, per Littledale, J. ; R. v. Swatldns, id. 550, 
 per Patteson, J. ; R. v. Gibney, Jebb, C. C. 15 ; R. «. Courtney, 2 Crawf. & D., 
 C. C. 63, per Ball, J. ; Joy on Conf. 59—61. 
 
CHAP. XV.] WHAT AMOUNTS TO A PEOMISE OE THREAT. 741 
 
 was made, either had the prisoner in custody, or held any conver- 
 sation with him.^ Notwithstanding the law is as above stated, 
 many justices of the peace, both in England and Ireland, are in 
 the habit of dissuading the culprit, with more or less earnest- 
 ness, from disclosing any fact which may tend to establish his 
 guilt. This practice, which is rather to be admired for romantic 
 generosity than for wisdom, or for any beneficial consequences result- 
 ing therefrom to the public,^ has been very properly condemned by 
 several able judges, as an absurd and improper mode of shutting up 
 one of the most valuable sources of justice and truth.^ 
 
 § 883.* It has been thought that illegal imprisonment is caleu- § 806 
 lated to exert such influence upon the mind of the prisoner, as to 
 justify the inference that his confessions made during its con- 
 tinuance were not voluntary ; and on one occasion, they appear on 
 this ground to have been rejected.^ But this doctrine cannot yet 
 be considered as satisfactorily established.® 
 
 § 884. From the preceding observations and cases, it is clear § 807 
 that a confession, to be inadmissible, must have been made in 
 consequence of some inducement or threat, which, being held out 
 or sanctioned by a person in authority, related to the prisoner's 
 escape from the charge against him. Still, the question remains, 
 what language is sufficient to constitute such inducement or 
 threat ; and here the reported decisions certainly furnish a very 
 unsatisfactory guide. Some reason may be given for applying 
 the rule to such words as these : — " Unless^ you give me a more 
 satisfactory account, I will take you before a magistrate;"^ "If 
 
 1 See oases cited in last note. ^ Edinb. Rev., March, 1824. 
 
 3 E,. V. Green, 2 C. & P. 312, per Gumey, B. ; E. v. Arnold, '8 C. & P. 622, 
 per Ld. Denman. In R. v. Cart, Maidstone Sum. Ass. 1838, MS., Ld. Dsnman 
 observed to some constables, who were called as witnesses : — " The distinction 
 is very clear ; you are not to suppress the truth, but you are not to take any 
 measures of your own to endeavour to extort it." 
 
 ■• Gr. Ev. § 230, almost verbatim. 
 
 " E. V. Ackroyd, 1 Lew. 0. C. 49, per Holroyd, J. 
 
 " E. V. Thornton, 1 Moo. C. 0. 2V ; 1 Lew. C. 0. 49, S. C. 
 
 ' Gr. Ev. § 220, in part. 
 
 5 R. V. Thompson, 1 Lea. 291, per Hotham, B. ; R. v. Luckhurst, Pearce 
 
742 WHAT AMOUNTS TO A PEOMISE OE THREAT. [PAET II. 
 
 you will tell me where my goods are, I will be favourable to you;"i 
 " I only want my money, and if you give me that, you may go to 
 the devil ; "^ " If you will not tell all you know about it, of course 
 we can do nothing ;'"* " You are under suspicion of this, and you 
 had better tell all you know ;"* " The watch has been found, and 
 if you do -not tell me who your partner was, I will commit you to 
 prison ; "^ " You had better split, and not suffer for all of them."« 
 But when confessions have been rejected in consequence of such 
 expressions as the following having been used : — "It will be better 
 for you to speak the truth ; "''' " It is of no use for you to deny it, 
 for there are the man and boy who 1 will swear they saw you 
 doit;"^ "Now, be cautious in the answers you give me to the 
 questions I am going to put to you about this watch ;"^ " What- 
 ever you say will be taken down and used against you ; " ^^ " Do not 
 say anything to prejudice yourself, as what you say I shall take 
 down, and it will be used for you or against you at your trial ;"" 
 " What you are charged with is a very heavy offence, and you must 
 be very careful in making any statement to me, or anybody else, 
 that may tend to injure you ; but anything you can say in your 
 defence, we shall be ready to hear, or send to assist you ;"^^ — ia 
 these, and the like cases, it is only too apparent, that justice and 
 common sense have been sacrificed on the shrine of mercy. Indeed, 
 
 & D. 245 ; E. v. Richards, 5 C. & P. 318, per Bosanquet, J. ; S. C. cited 
 as E. V. Griffiths, 2 Euss. C. & M. 832 ; E. v. Walsh, Ir. Cir. E. 866, per 
 Jackson, J. 
 
 ' E. V. Cass, 1 Lea. 293, n. a, per Gould, J. ; Boyd v. The State, 2 
 Humph. 37. 
 
 2 E. V. Jones, E. & E. 152. 
 
 ^ E. V. Partridge, 7 C. & P. 551, per Patteson, J. See, also. Guild's case, 5 
 Halst. 163. 
 
 ^ E. V. Kingston, 4 C. & P. 387, per Par^e and Littledale, Js. ; E. v. 
 Cheverton, 2 Fost. & Fin. 833, per Erie, C. J. 
 
 * E. V. Parratt, 4 C. & P. 570, per Alderson, J. ; E. v. Upchurch, 1 Moo. 
 C. G. 465. 
 
 " E. V. Thomas, 6 C. & P. 353, per Patteson, J. 
 
 ' E. V. Garner, 2 C. & Kir. 920 ; 3 Sess. Gas. 329 ; 1 Den. 329, S. G. 
 
 « E. V. MiUs, 6 G. & P. 146, per Gurney, B. 
 
 ' E. V. Fleming, 1 Arm. M. & 0. 330. 
 
 1" E. -0. Harris, 1 Gox, 106, per Maule, J. 
 
 " E. V. Drew, 8 G. & P. 140, per Goleridge, J. 
 
 •2 E. V. Morton, 2 M. & Eoh. 514, per id, 
 
CHAP. XV.J WHAT AMOUNTS TO A PEOMISE OE THREAT. 743 
 
 the judges themselves have of late years come to this conclusion,' 
 and after a solemn discussion of the subject in the Court of 
 Criminal Appeal, they have expressly overruled the last three 
 decisions cited above, as cases which are discreditable to the law.^ 
 So anxious was the court at one time to exclude evidence of confes- 
 sions, that exhortations not to tell lies, but to speak- the truth, 
 have been deemed likely to induce a. false acknowledgment of guilt ; 
 and, consequently, admissions made after such exhortations have 
 more than once been rejected.^ But this paradoxical opinion is 
 now happily exploded.* 
 
 § 885. Where the inducement relates to the charge against the § ^08 
 prisoner, and comes from a person in authority, it is not necessary 
 that it should be directly held out to the prisoner himself; but it 
 will equally have the effect of excluding his confession, if there be 
 good reason to believe that it has come to his knowledge, and has 
 influenced his conduct. Thus, where a superior clerk in the post- 
 office said to the wife of a postman, who was in custody for opening 
 and detaining a letter, " Do not be frightened ; I hope nothing 
 wiU happen to your husband beyond the loss of his situation ; " — 
 the prisoner's subsequent confession was rejected, it appearing that 
 the wife might have communicated to him the substance of this 
 statement.' So, where in a case of murder. Government had pub- 
 lished a handbill, offering pardon to any one of the offenders, except 
 
 ' See R. V. Reason, 12 Cox, 228, per Keating, J. ; R. v. Jones, id. 241. 
 
 2 R. V. Baldly, 2 Den. 430. There, a poUceman, who had a prisoner in 
 custody on a charge of felony, said to him, " You need not say anything to 
 criminate yourseK ; what you say will be taken down and used as evidence 
 against you." The couri; held that a confession subsequently made was ad- 
 missihle. Notwithstanding this decision, some of the Irish Judges appear to 
 he still incUned to follow the former rnala praxis. See R. v. Toole, 7 Cox, 244, 
 sed qu. 
 
 ' R. V. Shepherd, 7 C. & P. 579, per Gaselee, J. ; R. v. Enoch, 5 C. & P. 
 539, per Park, J. ; R. v. Wood, Jr. Cir. R. 597, per Crampton, J. ; R. v. 
 Laugher, 2 C. & Kir. 225, per Pollock, C. B. ; E. v. Bate, 11 Cox, 686, per 
 Montague Smith, J. 
 
 * R. V. Reeve, 1 Law Rep., C. C. 362 ; 41 L. J., M. C. 92 ; 12 Cox, 179, 
 S. C. ; R. V. Holmes, 1 C. & Kir. 248, per Rolfe, B. ; R. v. Court, 7 C. & P. 
 486, per Littledale, J. ; R. v. Harris, 1 Moo. C. 0. 341 ; R. v. Baldry, 2 Den. 
 430, 442 ; R. v. Jarvis, 1 Law Rep., C. C. 96 ; 37 L. J., M. C. 1, S. C. 
 
 5 R. V. Harding, 1 Arm. M. & 0. .340. 
 
744 OLD PRACTICE OF TORTUEE. [PART II. 
 
 the person who struck the blow, who should give such information 
 as would lead to the conviction of his accomplices ; and it appeared 
 that the prisoner was aware of this offer, and was induced by it to 
 make a confession, the court held that what he said could not be 
 given in evidence.-^ 
 
 § 886.^ The rule that the confession must be voluntary, is § 809 
 equally applicable to cases where the prisoner has made a statement 
 chiring the preliminary inquiry before the magistrate. The practice 
 of subjecting the accused to a compulsory examination, and even of 
 putting him to the torture, was familiar to the Eoman law,^ and 
 both these modes of J)roceeding were legal in Scotland so late as the 
 reign of Queen Anne.* In England, too, down to the reign of 
 Charles the first, the rack was occasionally employed as an apt 
 engine for wringing truth from the victims of the Star Chamber 
 and the High Commission Court ; ^ and even Lord Coke, till he 
 became a patriot, and saw political offences with the eyes of a leader 
 of the Opposition, was prepared to wink at, if not to justify, its 
 use ; ^ while Lord Bacon, to his eternal infamy, did not hesitate, as 
 Attorney-General, to superintend, iu person, the torture of an aged 
 clergyman.^ However, in the year 1628, on the trial of Felton for 
 the murder of the Duke of Buckingham, — the evidence being amply 
 sufficient to ensure a conviction without the use of torture, and the 
 prisoner threatening, that, were he put to the rack, he might pos- 
 sibly accuse Bishop Laud, or some other of the lords of the council 
 as being accessories to the fact, — the judges came to an unanimous 
 
 ' R. V. Boswell, C. & Marsh. 584, per Cresswell, J. See R. v. Dingley, 1 
 C. & Kir. 637 ; and R. v. Blacktum, 6 Cox, 333. 
 2 Gr. Ev. § 224, in part as to first six lines. 
 ^ See B. Carpz. Pract. Rer. Cri., Pars iii., Qusest. 113, per tot. 
 
 * Tlie Act of 7 A., c. 21, § 5, abolished the use of torture in Scotland. See 
 2 M'DouaU, Inst. 660. Por instances of the application of torture beyond 
 the Tweed, see 6 How. St. Tr. 1217—1222, and 10 id. 687, 691, 726—747, 
 751—758. 
 
 ' Campion's case, cited by Weston, B., in R. v. Cellier, 7 How. St. Tr. 1205 ; 
 Peacham's case, 2 How. St. Tr. 871. 
 
 * See Lady Shrewsbury's case, 2 How. St. Tr. 773, 774, n. a. 
 
 7 Peacham's case, 2 How. St. Tr. 870, 871, 876. See the masterly Life of 
 Ld. Bacon, in Ld. Campbell's Lives of the Chanc, 2nd vol., 339—341. 
 
CHAP. XV.] ALL CONFESSIONS MUST NOW BE VOLUNTARY. 745 
 
 opinion, that "no such punishment as torture by the rack was 
 known or allowed by our law ; "^ and since that decision no attempt 
 has been made to revive this atrocious practice.^ 
 
 § 887. Though torture was thus formally abolished before the § 810 
 middle of the seventeenth century, it was not till after the lapse of 
 many years that the common law doctrine, nemo tenetur prodere 
 seipsum, was fully recognised, or at least was interpreted to mean, — 
 as it does in the present day, — ^that all confessions should be strictly 
 voluntary ; for no man can read the cases reported among the State 
 trials, without observing, that, up to a comparatively modern date, 
 persons accused of flagrant or political offences were earnestly 
 pressed, in their preliminary examinations, to acknowledge their 
 guilt ; while, at their trial, recourse was frequently had to every 
 artifice of cross-examination, in order to entrap them into a con- 
 fession, or to detect some falsehood or inconsistency in the state- 
 ments which they had made in support of their innocence. This 
 practice, which still continues in France,* and in other countries on 
 the continent of Europe, and which certainly is no mean instru- 
 ment for the discovery of truth, has been regarded both in this 
 country and in America, during the last century, as savouring of 
 unfairness and oppression, and has consequently been discontinued ; 
 and, though assuredly few Englishmen would wish to see this mode 
 of proceeding re-established in all its harshness and vigour in our 
 criminal courts, some will probably consider that false sentiments 
 of humanity and fair dealing have been carried much too far in an 
 opposite direction, 
 
 § 888. The first Acts which regulated the examination of pri- § sn 
 soners before the magistrates, were passed in the reign of Queen 
 Mary ; * and these statutes, the principles of which have been 
 
 1 E. V. Felton, 3 How. St. Tr. 371. 
 
 2 In E. V. CeUier, 7 How. St. Tr. 1205, Weston, B., told the jury, that no 
 person had suffered torture in England since Campion the Jesuit, who was put 
 to the rack in the 20th year of the reign of Queen Elizaheth.. But this is a 
 strange mistake. 
 
 2 See Comments on the case of the Due de Praslin, in Law Eev. No. xiii. 
 " 1 & 2 Ph. & M., c. 13 ; 2 & 3 Ph. & M., c. 10 ; extended to Ireland by 10 
 C. 1, c. 18. 
 
746 EXAMINATION OF PEISONER BY MAGISTRATE. [PAET II. 
 
 adopted in several of the United States,^ were followed in England 
 by the Act of 7 G. 4, c. 64, and in Ireland by the corresponding 
 Act of 9 Gr. 4, c. 54. The statutes, however, which now define the 
 course of practice in either country are 11 & 12 V., c. 42, and 14 
 & 15 v., c. 93.^ The first of these two Acts, which applies to 
 
 1 See N. York Or. Code, Part 4, tit. 3, c. 7, §§ 195—199 ; Bellinger's case, 
 8 Wend. 595, 599 ; Elmer's Laws of New Jersey, p. 450, § 6 ; Laws of 
 Alabama (Toulmin's Dig.), tit. 17, cIl. 3, § 2, p. 219 ; Laws of Tennessee (Car- 
 ruthers and Nicholson's Dig.), p. 426; N. Carolina Eev. Stat., cli. 35, § 1 ; 
 Laws of Mississippi (Alden and Von Hoesen's Dig.), c. 70, § 5, p. 532 ; Laws 
 of Delaware (Rev. Code of 1829), p. 63 ; Brevard's Laws of S. Carolina, vol. i., 
 p. 460 ; Laws of Missouri (Revision of 1835), p. 476 ; Laws of Michigan 
 Territory, p. 215. See, also, Massaoh.. Rev. Stat., oh. 85, § 25 ; Resp. v. 
 M'Garty, 2 Dall. 87, per M'Kean, C. J. 
 
 2 14 & 15 v., c. 93, relates to Ireland, and enacts, in § 14, clause 2, that, 
 " Whenever the examination of the witnesses on the part of the prosecution 
 shall have been completed, the justice or one of the justices present shall, 
 without requiring the attendance of the witnesses, read or cause to be read to 
 the person accused the several depositions, and then take down in writing the 
 statement (Ac.) of such person, having first cautioned him that he is not 
 obliged to say anything unless he desires to do so, but that whatever he does 
 say will be taken down in writing, and may be given in evidence against him 
 on his trial ; and whatever statement the said person shall then make in answer 
 to the charge shall, when taken down, in writing, be read over to him, and 
 shall be signed by the said justice or one of the justices present, and shall be 
 transmitted to the clerk of the Crown or peace, as the case may be, along with 
 the depositions, and afterwards, upon the trial, may, if necessary, and if so 
 signed, be given in evidence against the person accused, without further proof 
 thereof, unless it shall be proved that it was not signed by the justice pur- 
 porting to sign the same ; but nothing herein contained shall prevent the 
 prosecutor from giving in evidence any admission or confession, or other state- 
 ment made at any time by the person accused, and which would be admissible 
 by law as evidence against such person." 
 
 The Form given in Sch. Ac. is as follows : — 
 
 " Complainant. { Petty Sessions, district of 
 
 Defendant. ( County of 
 
 A charge having been made against C. D. before the undersigned justice that 
 
 [cause of complaint, with time and place] ; and the said charge having been read 
 
 to the said C. D., and the witnesses for the prosecution having been severally 
 
 examined in his presence, and the said C. D. having been first duly cautioned 
 
 that he was not obliged to say anything, but that whatever he did say might be 
 
 given in evidence against him upon his trial, saith as follows: [statement of prisoner 
 
 in his very words, or as nearly so as possible, and to be signed by him, if he will]. 
 
 " Taken before me this day of in the year 
 
 eighteen hundred and , at in said 
 
 county. 
 
 " Signed Justice of said county." 
 
CHAP. XV.] EXAMINATION OF PEISONER BY MAGISTEATE. 747 
 
 England, enacts, in § 18, that " after the examinations of all the 
 witnesses on the part of the prosecution as aforesaid shall have been 
 completed, the justice of the peace, or one of the justices, by or 
 before whom such examination shall have been so completed as 
 aforesaid, shall, without requiring the attendance of the witnesses, 
 read, or cause to be read, to the accused the depositions taken 
 against him, and shall say to him these words, or words to the like 
 effect : — ' Having heard the evidence, do you wish to say anything 
 in answer to the charge ? You are not obliged to say anything 
 unless you desire to do so, but whatever you may say will be taken 
 down in writing, and may be given in evidence against you upon 
 your trial ; ' and whatever the prisoner shall then say in answer 
 thereto shall be taken down in writing,^ and read over to him, and 
 shall be signed by the said justice or justices, and be kept with the 
 depositions of the witnesses, and shall be transniitted with them as 
 hereinafter mentioned ;" that is, "the statement of the accused" 
 shall, together with the other documents in the case, " be delivered 
 by the said justice or justices, or he or they shall cause the same 
 to be delivered, to the proper officer of the court in which the trial 
 is to be had, before or at the opening of the said court on the first 
 day of the sitting thereof, or at such other time as the judge, re- 
 corder, or justice, who is to preside in such court at the said trial, 
 
 1 The Form given in Sched. N to tlie Act is as follows : — 
 
 " : A. B. stands charged before the undersigned [one] of her Majesty's 
 
 Justices of the Peace in and for the \county] aforesaid, this day of 
 
 in the year of our Lord , for that he the said 
 
 A. B., on at [&c., as in the caption of the depositions] ; 
 
 and the said charge heing read to the said A. B., and the witnesses for the 
 prosecution, C. D. and E. F., being severally examined in his presence, the 
 said A. B. is now addressed by me as foUows : ' Having heard the evidence, do 
 you wish to say anything in answer to the charge 1 You are not obliged to 
 say anything unless you desire to do so ; but whatever you say will be taken 
 down in writing, and may be given in evidence against you upon your trial ; " 
 whereupon the said A. B. saith as follows : 
 
 {Here state whatever the prisoner may say, and in his very words, as nearly 
 as possible. Get him to sign it if he mil.] 
 
 " A. B. 
 " Taken before me at the day and year first 
 
 above mentioned. 
 
 « S. L." 
 This form is legalised by § 28 of the Act, but is not rendered necessary. 
 
748 EXAMINATION OF PEISONEE BY MAGISTRATE. [PART 11. 
 
 shall order and appoint ;"^ " and afterwards, upon the trial of the 
 said accused person, the same may, if necessary, be given in evi- 
 dence against him, without fwther proof thereof, unless it shall be 
 proved that the justice or justices purporting to sign the same did 
 not in fact sign the same : Provided always, that the said justice or 
 justices, before such accused person shall make any statement, 
 shall state to him, and give him clearly to understand, that he has 
 nothing to hope from any promise of favour and nothing to fear 
 from any threat, which may have been holden out to him to induce 
 him to make any admission or confession of his guilt, but that 
 whatever he shall then say may be given in evidence against him on 
 his trial, notwithstanding such promise or threat : Provided, never- 
 theless, that nothing herein enacted or contained shall prevent the 
 prosecutor in any case from giving in evidence any admission or 
 confession, or other statement of the person accused or charged, 
 made at any time, which by law would be admissible as evidence 
 against such person."^ 
 
 § 889. If the above clause be read in connexion with the Form § 812 
 given in the schedule to the Act,^ it would seem that, in order to 
 render a prisoner's statement strictly valid as a statutory confes- 
 sion, the following circumstances must all have occurred. The 
 charge must have been read to the accused ; * all the witnesses 
 must have been examined in his presence,^ and the depositions 
 read to him after the examinations were completed ; ® he must 
 then, and not till then, be twice cautioned by the justice ; first, 
 generally,''' and, secondly, as to the ineiBcacy of any promises or 
 threats which may have been formerly held out to him ; ^ his whole 
 statement must next be taken down in his own words ;^ it must 
 
 1 § 20. 2 § 18. 
 
 ^ Cited in last page, n. 1. * See Sch. 
 
 * See Sch., and § 17 of the Act, cited ante, § 4Y9. « See § 18. 
 
 ' See § 18. As to the old law, see R. v. Green, 5 C. & P. 312 ; E. v. Arnold, 
 8 id. 621. 
 
 ^ See first proviso in § 18. This is quite new, and is an unique specimen 
 of ahsurd legislation. 
 
 » See Sch. ; and E. v. Eoche, 0. & Marsh. 341 ; E. v. Sexton, and E. v. 
 Mallett, cited 2 Euss. C. & M. 867. 
 
CHAP. XV.] EXAMINATION OF PEISONBR BY MAGISTKATE. 749 
 
 then be read to him,^ and he must be pressed for his signature,^ 
 though the Act is silent as to the effect of his refusing to sign it, 
 or even to admit its correctness; the justice must also sign the 
 statement ; * and this being done, it must be kept with the depo- 
 sitions, and be transmitted, together with them and certaia other 
 documents, to the court where the trial is to be had, on or before 
 the opening of such court.* 
 
 § 890. Notwithstanding these minute directions, it is not easy § 813 
 to see how the prisoner on his trial could avail himself of any 
 neglect of them on the part of the justice, whether intentional 
 or otherwise ; for the statement transmitted, if headed in the 
 manner pointed out by the schedule, is made evidence against 
 the prisoner on its mere production, and without any proof of 
 the mode in which it was taken down, unless it can be shown 
 that the signature of the justice is a forgery. Whether this was 
 the intention of the Legislature may, perhaps, be doubted ; but 
 such is the apparent effect of the language employed. It is also 
 clear, from the last proviso which is appended to the 18th section 
 of the Act, that any statement made by the prisoner in the magis- 
 trate's presence, before the examiaations of the witnesses for the 
 prosecution are all completed, may be proved by parol evidence, 
 and will be admissible against him, even though no caution has 
 been previously given.^ 
 
 § 891. The judges, as might have been expected, have felt § 814 
 much embarrassment in putting a sensible interpretation on these 
 ill-drawn provisions ; and the cases, as reported on the subject, 
 are extremely unsatisfactory. In one,^ Mr. Baron Alderson is 
 made to entertain much doubt whether, in spite of the general 
 language of the Act, it was not necessary to prove by independent 
 
 1 See § 18 ; and 2 Russ. C. & M. 881, 882. 
 
 2 See Sch. ; and 2 Russ. C. & M. 881, 882 ; R. v. Lambe, 2 Lea. 552 ; R. 
 V. Thomas, id. 637 ; R. v. Foster, 1 Lew. C. C. 46 ; R. v. Hiist, id. ; R. v. 
 Zelicote, 2 Stark. R. 483 ; R. v. Pressly, 3 0. & P. 183. 
 
 3 See § 18 ; and R. v. Tarrant, 6 C. & P. 182. ■> See §§ 18 & 20. 
 
 ^ See post, p. 752, n. 10, and, also, R. v. Stripp, 7 Cox, 97 ; Pearce & D. 648, 
 S. C. « R. V. Higson, 2 C. & Kir. 769. 
 
750 PROOF OF peisonek's examination. [part ii. 
 
 evidence that the accused had been duly cautioned by the magis- 
 trate, although the caption of the examination contained a positive 
 declaration to that effect. In another,^ Mr. Justice Coleridge, 
 after consulting Cresswell, J., is said to have expressed an opinion, 
 that the first proviso in § 18 of the Act, vyhich relates to the 
 special caution to be given to the accused for the purpose of 
 removing the effect of any previous threat or inducement, vras a 
 condition precedent, and that, in the absence of any proof that it 
 had been acted upon, the statement of the prisoner was inadmis- 
 sible. These dicta, however, appear to be wholly unfounded; 
 and if the case of E. v. Sansome be correctly given in Mr. Cox's 
 Criminal Law Cases,^ they have been overruled. According to 
 this reporter, the judges expressly determined in that case, that 
 when an examination was transmitted by the committing magis- 
 trate in the statutory form, it became admissible vdthout further 
 proof ; ^ and Mr. Baron Parke went so far as to assert that, in his 
 judgment, it would be receivable in evidence, though neither of 
 the cautions was stated to have been given. Too much reUance, 
 however, should not be placed on this last dictum : and until the 
 law is more clearly defined by judicial construction, it certainly 
 will be prudent for committing magistrates not only to adopt the 
 form set out in the schedule to the Act, but to give the prisoner 
 in all cases the second caution as weU as the first.* 
 
 § 892. Although a written examination, if it purport to be taken § 815 
 in conformity with the Act, and to be signed by the committing 
 magistrate, is in strictness admissible without proof, it may stjll 
 be advisable in serious cases, as a matter of caution, to call either 
 the justice or the clerk, so that it may clearly appear that the 
 proceedings have been conducted in the proper manner.^ Indeed, 
 this course may become necessary, if the document has not been 
 drawn out in the form given in the schedule, or if it contains 
 
 1 E. V. Kimber, 3 Cox, 223. 
 
 2 4 Cox, 203, 207. See S. C. as reported in 3 C. & Kir. 332. 
 
 ^ In 1 Den. 545, where the same case is reported, the above ruling will not 
 be found ; and this is the more remarkable as Mr. Denison was himself counsel 
 in the cause. ■> R. v. Sansome, 1 Den. 545. 
 
 5 See K. V. Pikesley, 9 C. & P. 124 ; R. v. Wilshaw, C. & Marsh. 145. 
 
CHAP. XV.] PEOor OF peisoner's examination. 751 
 
 erasures or interlineations whicli require explanation.^ If, too, 
 tke prisoner has not signed his name or mark to the paper, 
 some witness, who was present at the inquiry, should, in prudence, 
 be forthcoming to speak to its identity, and to prove that it was 
 read over to the accused, and assented to by him.^ It would 
 seem to be further necessary to the validity of an examination as 
 evidence per se, that it should appear on the face of the document 
 that it was taken while the prisoner was under examination on a 
 charge of felony or misdemeanor, or of suspicion of one of those 
 crimes, and that the justices signing it were acting as justices 
 pursuant to statute.^ Whether these facts must appear by a 
 separate caption is a point which is not yet determined. The 
 form in the schedule gives a separate caption, but that form, 
 though legalised, is not rendered necessary by the Act ; * and 
 under the old law, provided the examination was written on the 
 same paper as the depositions, the heading at the commencement 
 was held to apply to all the statements contained in the docu- 
 ment.* In this respect the rule agreed with that which governs 
 examinations taken under the Poor Law Acts ; for it is not neces- 
 sary, — as was once supposed,* — that such examinations should have 
 distinct captions, but it will suffice to state in the first caption the 
 names of all the witnesses.''' 
 
 § 893. As the admissibility of statutory examinations without § 816 
 proof rests on the presumption that the justices have done their 
 duty, it seems to follow that no evidence can be received tending 
 to contradict or vary the statements contaiaed in the documents 
 as returned. This was the law before the late Act was passed,^ 
 and that Act does not appear to have introduced any change in 
 
 1 See R. 1!. Brogan, cited 2 Russ. C. & M. 887 ; R. v. Dwyers, id. n. p. 
 
 2 See R. V. Reading, 7 C. & P. 649 ; R, v. Hearn, C. & Marst. 109 ; R. v. 
 Hopes, 7 C. & P. 136 ; 1 M. & RoId. 396, n., S. C. ; R. v. Haines, 2 Russ. 
 C. & M. 886. 
 
 3 See R. V. Tarrant, 6 0. & P. 182. ■• § 28 of the Act. 
 
 ' R. V. Johnson, 2 C. & Kir. 355, per Alderson, B. ; R. v. Young, 3 id. 106. 
 
 « R. V. Ratoliffe Culey, 2 Sess. Cas. 352. 
 
 ' R. V. St. Michael's, Coventry, 12 Q. B. 96 ; 3 Sess. Cas. 260, S. C. 
 
 8 R. V. Walter, 7 C. & P. 267 ; R. v. Morse, 8 C. & P. 605. 
 
752 prisonee's examination — parol evidence, [part II. 
 
 the practice.^ Whether this presumption is of so conclusive a 
 character as to exclude all parol evidence, which is tendered with 
 the view of adding to the written examination, is a question of 
 douht and difficulty ; but as the Act renders it incumbent on the 
 justice, not only to reduce to writing so much of the prisoner's 
 examination as may be material,^ but to take down his whole 
 statement,^ it would seem right to hold that he had done so, and 
 that no parol evidence of any additional statement made at the 
 same time could be received.* 
 
 § 894. If, however, parol evidence of such additional state- § 817 
 ment be admissible on the part of the prosecution, the prisoner, 
 a fortiori, would seem entitled to pray it in aid of his defence^ 
 and this view of the law is sanctioned, not only by the case of 
 Venafra v. Johnson,^ but also by the authority of Mr. Starkie and 
 Mr. Philhpps ; the latter of whom, while he denies the right of 
 the Crown, admits the right of the accused, to produce such 
 evidence.^ Whatever may be the correct rule upon this particular 
 point, it is clear, from the last proviso which is appended to 
 § 18 of the Act, that'' a written examination will not exclude 
 parol evidence, either of an extra-judicial confession, previously 
 or subsequently made ;^ or of a statement made before the justice 
 on a former investigation, and not incorporated in the examina- 
 tion returned;' or of anything incidentally said by the prisoner 
 while the witnesses were deposing against him, even though it 
 were addressed to the magistrate himself,^" and no caution had 
 
 ' E. V. Bond, 4 Cox, 236. 
 
 ^ This was the language of the old law. See 7 G. 4, c. 64, § 3. 
 
 3 See 11 & 12 v., c. 42, § 18, and Sch. N., cited ante, § 888. 
 
 * See, however, Rowland v. Ashby, Ey. & M. 232 ; R. v. Harris, 1 Moo. 
 C. C. 338 ; Leach v. Simpson, 5 M. & W. 312, per Parke, B. 
 
 * 1 M. & Rob. 316, per Gaselee, J., after consulting the judges of C. P. 
 « 2 Ph. Ev. 82—86 ; 3 St. Ev. 787. 
 
 ' Gr. Ev. § 227, in part. 
 
 * R. 1). Carty, Ridgwa/s R. 73, cited in Joy on Conf. 97, and McNaUy, Ev. 
 45 ; R. V. Reason, 16 How. St. Tr. 35, per Eyre, J. 
 
 ' R. V. Wilkinson, 8 C. & P. 662, per Littledale, J., and Parke, B. ; E. i). 
 Bond, 4 Cox, 231 ; 1 Den. 517, S. 0. 
 
 1" R. V. Bond, 4 Cox, 231 ; 1 Den. 517 ; 3 C. & Kir. 337, n., S. C. ; R. v. 
 Spilsbury, 7 C. & P. 187, per Coleridge, J. ; R. v. Johnson, per Parke, B. ; 
 
CHAP. XV.] WEITTEN EXAMINATION — PAROL EVIDENCE. 753 
 
 been previously given.^ So, if it can be proved that the pri- 
 soner's examination was not reduced to writing, parol evidence 
 of what he said before the magistrates will be received ; ^ though 
 the presumption that all things were done as the law requires, 
 renders it necessary for the Crown to give clear evidence on this 
 point ; * and on more than one occasion the judges seem to have 
 thought it necessary that the magistrate or his clerk should be 
 called to prove the negative fact.* Again, if the written examina- 
 tion be shown to have been lost,^ or if it be wholly inadmissible 
 under the statute by reason of irregularity, parol evidence will be 
 received to prove what the prisoner voluntarily disclosed ; ^ and in 
 this last event of the examination being rejected for informality, it 
 may still be used, either as a contemporaneous writing, to refresh 
 the memory of the witness who wrote it,'' or if it be signed by the 
 prisoner, it will be receivable at common law as his confession, 
 the signature being first proved, and it being shown that he knew 
 what it contained.^ 
 
 § 895. One species of irregularity, however, in excluding the § 818 
 examination as evidence per se, prevents its being used to refresh 
 the writer's memory, and shuts out all parol testimony of what 
 
 E. V. Moore, per id. ; E. ■». Hooper, per ErsMne, J. ; all cited in 2 Eiiss. 
 C. & M. 879. But see R. v. "WeUer, 2 C. & Kix. 223, per Piatt, B. Sed qu. 
 aa to this case. ' E. v. Stripp, 7 Cox, 97 ; Pearce & D. 648, S. C. 
 
 2 R. V. HaU, cited by Grose, J., in E. v. Lamb, 3 Lea. 559 ; E. v. Huet, 
 
 2 Lea. 821. 
 
 * E. V. Fearsliire, 1 Lea. 202 ; E. v. Jacobs, id. 309 ; E. v. Hinxman, per 
 Ashliurst, J., and E. v. Fisher, per Heath, J., cited id. 310, 311, n. ; E. v. 
 M'Govern, 5 Cox, 506. 
 
 ^ E. V. Packer, per Parke, J., and E. v. Phillips, per Bosanquet, J., both 
 cited 2 Euss. C. & M. 876, n. p. ; PhiUips v. Wimhtim, 4 C. & P. 273, per 
 Tindal, C. J. s -^ ^ Eeason, 16 How. St. Tr. 35, per Eyre, J. 
 
 « E. V. Eeed, M. & M. 403, per Tindal, C. J. 
 
 7 E. V. Layer, 16 How. St. Tr. 214, 215, per Pratt, C. J. ; E. v. Watson, 
 
 3 C. & Kir. Ill ; E. v. Watkins, per Bosanquet, J., cited n. J, 4 C. & P. 550 ; 
 E. V. Tarrant, 6 C. & P. 182, per Patteson, J. ; E. v. Pressly, id. 183, per id. ; 
 E. V. Dewjliurst, and E. v. Hirst, per Bayley, J. ; 1 Lew. C. C. 47 ; E. v. Jones, 
 Carr. Cr. i. 13, per Bayley and Gaselee, Js., and Vaughan, B. ; 1 Lew. C. C. 
 47, n. ; 4 C. & P. 550, n., S. C. ; E. v. BeU, 5 C. & P. 162, per Gaselee, J., 
 and Ld. Tenterden. 
 
 s See E. V. Sansome, 4 Cox, 203 ; 1 Den. 545 ; 3 C. & Kir. 332, S. C. 
 
 3 c 
 
754 EXAMINATION TAKEN IMPBOPEELY ON OATH. [PART II. 
 
 was said on the same occasion. The irregularity in question 
 is where the examination purports to have been taken upon oath?- 
 This rule, which is supported by too many authorities to admit of 
 dispute, rests upon two principles of law, both of which are of 
 very questionable policy, as applied to the particular case Tinder 
 discussion. The first is a principle which has been several times 
 mentioned above, namely, that the confession of a prisoner must 
 be voluntary : and it is contended, that a statement made under 
 oath is not so. This is certainly true in one sense, though not 
 in that in which it is used by the advocates for exclusion. A 
 confession not voluntary is excluded. Why ? because it may 
 be untrue. A confession made upon oath cannot be rejected on 
 this ground ; since it is absurd to contend, that an oath, which in 
 all other cases is rightly considered as the most effectual test of 
 truth, should, if taken by a prisoner, be regarded as an induce- 
 ment to falsehood. But then, it is urged, nemo tenetur prodere 
 seipsum ; a prisoner should not be compelled to criminate himself. 
 Admitted; but what then? A prisoner, though sworn, is no 
 more bound to criminate himself, than if he were simply inter- 
 rogated without any oath being administered to him. He has 
 still full liberty to decline to make any explanation or declaration 
 whatever : though if he does consent to answer the questions put 
 to him, he may, perhaps, incur the penalties of perjury should he 
 knowingly utter what is false.^ " But a friendless accused is not 
 aware of the law in his favour." This maybe so; but in what 
 other case is a party at liberty to set up his ignorance of the law ? 
 If the maxim of the common law, ignorantia legis neminem 
 excusat, be sound, as it unquestionably is ; and if, consequently, 
 the defence of acting in ignorance cannot protect an offender even 
 from punishment; on what principle of justice is the accused 
 entitled to say, " I confessed my crime, and have sworn that my 
 
 ' K. V. Smitli, 1 Stark. R. 242, per Le Blanc, J. ; R. v. Davis, 6 C. & P. 177 
 per Gurney, B. ; R. ■;;. Bentley, id. 148, per id. ; R. v. Rivers,' 7 C & p' 177* 
 per Park, J. ; R. v. Owen, 9 C. & P. 238, per Gurney, B. ; R. „. Pikesley, id! 
 124, per Parke, B., and Bosanquet, J. ; R. v. Wheeley, 8 C. & P. 250 per 
 Alderson, B. 
 
 ^ This, however, seems doubtful, as the magistrate has no authority to 
 administer such an oath. 
 
CHAP. XV.] EXAMINATIONS PXJRPOETING TO BE ON OATH. 755 
 
 statement is true ; but you, the jury, must not hear what I said, 
 because I was not aware of the existence of a rule of law, which 
 would have expressly justified me in holding my peace"? If 
 the practice of examining prisoners on oath be deemed inquisi- 
 torial and harsh, let it be discountenanced, not by rejecting a 
 confession so obtained, but by prohibiting justices from acting in 
 this manner, or even by rendering them liable to a penalty in case 
 of disobedience. 
 
 § 896. It may be thought, at first view, that if this change were § 819 
 effected, the practical result would be the same ; but this is not the 
 case ; since, at present, not only are all confessions made upon oath 
 rejected, but all those which purport to he so made ; ^ and this leads 
 us to the second principle of law, on which the rule under discus- 
 sion rests. That principle is, that as the justices, in discharge of 
 their duty, ought to make a true return of what took place before 
 them, the court will presume that they have thus acted ; and, there- 
 fore, will not admit parol evidence to vary or contradict the written 
 document so returned. Now, the fallacy of this reasoning is 
 obvious. In the first place, the presumption, omnia rite esse acta, 
 is not conclusive in ordinary cases, and should not be so in this ; 
 and next, even supposing that it should, it does not apply. The 
 duty of the justice is two-fold : first, to examine the prisoner 
 without administering an oath to him ; ^ and, secondly, to make a 
 true return of his statement. If, then, an examination be returned, 
 which purports to have been taken on oath, the presumption that 
 this return is true is at least counterbalanced by the opposite pre- 
 sumption, that the justice has discharged his duty by not swearing 
 the prisoner; and the result is, that parol evidence should be 
 received, in order to ascertain which presumption is in accordance 
 with the fact. The principle, that written documents shall not be 
 varied or contradicted by parol testimony, may apply to the body 
 of the examination, which is taken down by the justice or his 
 clerk, and ig expressly assented to by the accused ; but it should 
 not extend to the mere formal heading or conclusion of the 
 examination, which is not, or at least need not be, read over to the 
 
 > See cases cited ante, p. V54, n. 1. - B. N. P. 242. 
 
 3 c 2 
 
756 SWORN CONFESSIONS, WHEN ADMISSIBLE. [PART II. 
 
 prisoner, or admitted to be correct by him ; and a mis-statement 
 in which may, and, in fact, notoriously does, often arise from the 
 inadyertence or carelessness of the magistrate or his clerk. If 
 the justice were liable to a penalty, as above suggested, for taking 
 a prisoner's confession on oath, he- would clearly be entitled, if 
 sued or prosecuted for such- penalty, to show that, though the 
 examination purported on its face to have been taken on oath, the 
 prisoner was not in fact sworn; and no real danger could be 
 apprehended, but on the contrary much benefit would accrue to 
 the administration of criminal justice, if a similar course of pro- 
 ceeding were allowed, when the question was whether a confession 
 was receivable or not. However, as before stated, the authorities 
 in favour of rejecting examinations which purport to be upon oath 
 are so numerous and consistent, that, without the aid of the Legis- 
 lature, little hope can be entertained that a more satisfactory rule 
 will be adopted in practice.-^ 
 
 § 897. Where a prisoner, on being mistaken for a witness, was § i 
 partially examined upon oath, but, the mistake being discovered, 
 the deposition was destroyed, — a subsequent statement made by 
 him, after due caution from the magistrate, was held to be clearly 
 admissible.^ And, indeed, the rule excluding sworn confessions 
 seems strictly confined, at common law, to the case of a statement, 
 made by the party upon oath, while a prisoner under examination 
 respecting the criminal charge.^ It is true that one or two deci- 
 sions by Mr. Baron Gumey might be cited, which seem to extend 
 the rule somewhat further, and to render inadmissible confessions 
 made on oath to magistrates or coroners by parties, who, after 
 being examined as jvitnesses, have themselves been committed for 
 trial ; * but these decisions have been overruled by subsequent 
 
 > See cases cited ante, p. 754, n. 1. See, also. No. 57 of Law Mag. 13 — 
 19, where the anomalies in the present law of confessions are amusingly 
 exposed. ^ -^ ^ Wehb, 4 C. & P. 564, per Garrow, B. 
 
 " See Joy on Conf. 62—68. 
 
 '' R. V. Lewis, 6 C. & P. 161, per Gumey, B. ; R. v. Davis, id. 177, per id. ; 
 R. V. Owen, 9 C. & P. 83, per id. See, also, n. lo, in 2 Russ. 0. & M. 860 ; and 
 R. V. M'Hugh, 7 Cox, 483, per Ir. Or. Ct. of App., Pennefather, B., diss. 
 
 = See R. V. Gillis, 17 Ir. Law R., N. S. 534, per O'Hagan, J. ; E. v. Coote, 
 
CHAP. XV.] SWORN CONFESSIONS, WHEN ADMISSIBLE. 757 
 
 § 898. Thus, the judges have held, that, on an indictment for § 821 
 forging a bill of exchange, depositions of the prisoner, which had 
 been taken on oath before commissioners of bankruptcy, after the 
 prisoner had been charged before the mayor with forging the bill, 
 were admissible against him ; ^ and in another case, where a bank- 
 rupt had been examined before a commissioner touching some 
 matter irrespective of his trade dealings, and had not objected to 
 answer the questions put, his examination was held to be admis- 
 sible evidence against him on a subsequent criminal charge.^ So, 
 where a trader was indicted for obtaining property on credit, under 
 the false pretence of dealing in the ordinary way of his trade, 
 withia four months before hi^ liquidation,^ his examination, taken 
 in liquidation under § 97 of the Bankruptcy Act, 1869,* was 
 admitted in evidence against him.' So, on a charge of arson, 
 depositions made by the prisoner when under examination as a 
 witness respecting the origin of the fire, have been read against 
 him.* 
 
 § 899. Again, on the trial of an indictment for conspiracy, the § 821 
 answers in Chancery of the defendants, made on oath by them in a 
 suit instituted against them by the prosecutor, have been received.'' 
 An a£6.davit, too, has been given in evidence against a prisoner, 
 which was sworn by him in a suit in Doctors' Commons ; ^ aind 
 depositions made by prisoners, when examined as witnesses 
 against other persons on criminal charges, have several times been 
 
 4 Law Eep., P. C. 605, 606, per Sir R. Collier ; 42 L. J., P. C. 47, 48 ; 12 Cox, 
 562, S. C. 
 
 ' R. V. Wheater, 2 Moo. C. C. 45 ; 2 Lew. C. C. 157, S. C. See R. v. Clieny, 
 12 Cox, 32. 
 
 2 R. V. Sloggett, Pearce & D. 656 ; 7 Cox, 139, S. C. See, also, R. v. Scott, 
 25 L. J., M. C. 128 ; and R. v. Hillam, 12 Cox, 174. 
 
 ' Contrary to § 11 of the Debtors Act, 1869, 32 & 33 V., c. 62. 
 
 * 32 & 33 v., 0. 71. 
 
 5 R. V. Widdop, 42 L. J., M. C. 9 ; 2 Law Rep,, C. C. 3; 12 Cos, 251, 
 S.C. 
 
 8 R. V. Coote, 4 Law Rep., P. C. 599 ; 42 L. J., P. C. 45 ; 12 Cox, 557, S. C. 
 
 ' R, V. Goldahede, 1 C.&; Kir. 657, per Ld. Denman ; R. ■». Highfield, per 
 Vaughan, B., cited 2 Rnss. C. & M. 859. 
 
 8 R. V. Walker, per Ld. EUenborough, cited by Gurney, B., in 6 C. & P. 162. 
 
758 SWOBN CONFESSIONS, WHEN ADMISSIBLE. [PAET II. 
 
 admitted against themselves.^ Nay, in one case, the very point 
 decided by Mr. Baron Gurney was distinctly overruled by Chief 
 Justice Cockburn ; and a deposition was admitted against a pri- 
 soner, who had made it before the justices while under examina- 
 tion as a witness, and who, in consequence of its self-criminating 
 character, had been committed to take his trial.^ So, upon a 
 trial for manslaughter, the prisoner's deposition on oath, taken by 
 the coroner upon the inquest, has been admitted in evidence 
 against him.^ So, the testimony, given by a prisoner before a 
 committee of the House of Commons, has been read against him 
 on a criminal trial ; ^ though this case is of little authority on the 
 subject under discussion, as the e^dd^nce could not then have been 
 given on oath.^ The case of E. v. Britton," which is sometimes 
 cited as a decision conflicting with the above proposition, is in 
 fact no hostile authority, as the only question there determined 
 was, that on an indictment against a banki'upt for not disclosing 
 his effects under the commission, his balance-sheet, which was 
 only admissible in the event of the commission being valid, could 
 not be given in evidence to prove the petitioning creditor's debt as 
 a part of the commission.'' On the whole it seems clear, that if a 
 prisoner, on being examined as a witness, has consented to answer 
 . questions, to which he might have demurred as tending to criminate 
 himself, and which, therefore, he was not bound to answer, his 
 statement will be deemed voluntary, and, as such, may be subse- 
 quently used against himself for all pui-poses,^ unless he be pro- 
 tected by the special language of some statute." 
 
 > E. ■!). Haworth, 4 C. & P. 254, per Parke, J. ; E. v. Tubby, 5 0. & P. 530, 
 per Vauglian, B. ; E. v. Braynell, 4 Cox, 402. 
 
 2 E. •■). Chidley & Cummins, 8 Cox, 365. See, also, R. v. Colmer, 9 Cox, 506, 
 per Martin, B. 
 
 3 E. V. Bateman, 4 Fost. & Fin. 1068, per Martin, B., and Willes, J. 
 
 * E. D. Merceron, 2 Starlc, E. 366, per Abbott, J. 
 
 * See per Ld. Tenterden, in E. v. Gilham, 1 Moo. C. C. 203. 
 
 « 1 M. & Eob. 297, per Patteson and Alderson, Js. 
 
 ' Per Patteson, J., explaining that decision in E. v. Wheater, 2 Moo C. 
 C. 51. ' 
 
 « But see E. v. GilUs, 17 Ir. Law E., N. S. 512 ; 11 Cox, 69, S. 0. ; where a 
 large majority of the Irish judges took a different ^'iew of the law. Sed qu. 
 
 ' See post, § 1455, as to these statutes. 
 
CHAP. XV.] PEOPERTY FOUNB IN CONSEQUENCE OP CONFESSION. 759 
 
 § 900. Although a prisoner cannot, at common law, exclude his § 822 
 own confession, on the sole ground that it was made hy him while 
 a witness under oath, yet, if he can prove that, when questions 
 tending to criminate him were put, he had claimed the protection 
 of the court, and had still been illegally compelled to answer, his 
 answers cannot be given in evidence against himself.^ Testimony 
 so obtained is excluded, not, as it seems, because it may possibly be 
 untrue, but because the right of the witness to be silent has been 
 infringed; and it is deemed expedient, on grounds of public policy, 
 to uphold the broad legal maxim, that no man shall be forced to 
 criminate himself.^ 
 
 § 901. Notwithstanding that the statutes which prescribe the § 823 
 duty of coroners contain no provision for taking the examination of 
 the accused, but simply enact, that every coroner shall put in writing 
 the evidence given to the jury before him, or as much thereof as 
 shall be material, and shall certify and subscribe the same, and 
 deliver it to the officer of the court in which the trial is to be,^ — 
 it seems on several occasions to have been assumed, that the 
 coroner has the same authority to take the examination of a pri- 
 soner as a magistrate.* 
 
 § 902.^ When, in consequence of information unduly obtained § 824 
 from the prisoner, the property stolen, or the instrument of the 
 crime, or the body of the person murdered, or any other material 
 fact, has been discovered, proof is admissible that such discovery 
 was made conformably with the information so obtained. The 
 prisoner's statement as to his knowledge of the place where the 
 property or other article was to be found, being thus confirmed 
 
 ' E. V. Garbett, 1 Den. 236 ; 2 0. & Kir. 474, S. C. See post, § 1453, et seq., 
 as to what questions a witness may refuse to answer. 
 
 ' R. V. Garbett, 1 Den. 257, per Alderson, B. But see cases cited in § 898, 
 ante. 
 
 ' 7 G. 4, c. 64, §§ 4 & 6 ; 9 G. 4, c. 54, §§ 4 & 6, Ir. It may be doubted 
 whether § 4 of 7 G. 4, c. 64, be not now repealed by § 34 of 11 & 12 V., c. 42, 
 
 * E. V. Eeid, M. & M. 403, cor. Tindal, C. J. ; R. v. Roche, C. & Marsh. 341, 
 cor. Ld. Denman ; Brogan's case, 2 Euss. C. & M. 874, cor. Ld. Lyndhurst. 
 
 ^ Gr. Ev. § 231, in great part. 
 
760 PROPERTY FOUND IN CONSEQUENCE OF CONFESSION. [PART II. 
 
 by tlie fact, is shown to be true, and not to have been fabricated in 
 consequence of any inducement. It is, therefore, competent to 
 prove that the prisoner stated that the thing would be found by 
 searching a particular place, and that it was accordingly so found ; 
 but it would not be competent to inquire whether he confessed that 
 he had concealed it there.^ Lord Eldon has laid down the rule 
 somewhat more strictly, saying, in Harvey's case,^ that, where the 
 knowledge of any fact was obtained from a prisoner, under such a 
 promise as excluded the confession from being given in evidence, 
 he should direct an acquittal, unless the fact proved would itself 
 have been sufficient to warrant a conviction, without any confession 
 leading to it. But the sounder doctrine seems to be, that so much 
 of the confession as relates distinctly to the fact discovered by it 
 may be given in evidence, as this part at least of the statement 
 cannot have been false.^ 
 
 § 903.* If the prisoner himself delivers up the goods stolen, the § 825 
 fact that this was done upon inducements to confess held out 
 by persons in authority, will afford no ground for rejecting his 
 declarations, contemporaneous with the act of delivery, and explana- 
 tory of its object, though they may amount to a confession of 
 guUt.^ But whatever he may have said at the same time, not 
 qualifying or explaining the act of delivery, must be rejected. And 
 if,^ — notwithstanding the prisoner's confession, thus improperly 
 induced, and any acts done by him in furtherance of the discovery, — 
 the search for the property or person in question be ineffectual, no 
 proof of either the confession or the acts can be received. The 
 confession is excluded, because, being made under the iufluence of 
 a promise, it cannot be relied upon ; and the acts done under the 
 same influence, not being confirmed by the finding of the property 
 
 ^ 1 Ph. Ev. 411 ; R. v. Warickeliall, 1 Lea. 263 ; E.. v. Mosey, id. 265, ii., 
 per Buller, J., and Perryn, B. ; R. v. Lockhait, id. 386 ; E. v. Gonld, 9 C. & P. 
 364, per Tindal, 0. J., and Parke, B. ; R. u Tlnirtell, cited Joy on Conf. 84 ; 
 R. V. Cain, 1 Cr. & D., C. 0. 37, per Torrens, J. ; Com. v. Knapp, 9 Pick. 496, 
 '^ll- 2 2 East, P. C. 658. 
 
 ' R. i>. Butclier, 1 Lea. 265, n. ; and see the cases cited above, n. 1. 
 
 * Gr. Ev. § 232, in part. 
 
 = R. V. GriiTm, R. & R. 151 ; R. v. Jones, id. 152. 
 
CHAP. XV.] CONFESSIONS OF ACCOMPLICES — OP AGENTS. 761 
 
 or person, are open to the same objection. The influence which 
 may produce a groundless confession may also produce groundless 
 conduct.^ 
 
 § 904. A prisoner is not liable to be affected by the confessions § 826 
 of his accomplices ; ^ and so strictly has this rule been enforced, 
 that where a person was indicted for receiving stolen goods, a 
 confession by the principal that he was guilty of the theft, was 
 held by all the judges to be no evidence of that fact as against 
 the receiver;^ and the decision, it seems, would be the same, if 
 both parties were indicted together, and the principal were to plead 
 guilty.* 
 
 § 905.^ The same doctrine prevails in cases of agency. In § 827 
 general, no person is answerable criminally for the acts of his 
 servants or agents, whether he be the prosecutor or the accused, 
 unless a criminal design be brought home to him.® The act of the 
 agent or servant may be shown in evidence, as proof that such an 
 act was done ; for a fact must be established by the same evidence, 
 whether it be followed by a criminal or civil consequence ; but it is 
 a totally different question, in the consideration of criminal as dis- 
 tinguished from civil justice, how the principal may be affected by 
 the fact, when so established. For though the wrongful or fraudu- 
 lent act of the agent may involve his principal civilly,'^ it cannot 
 
 1 E. ,;. Jenkins, R. & E. 492. 
 
 ^ So is the Eoman law. " Confessio imius non probat in prsejtidioiimi 
 alterius, quia ali&s esset in manii confitentis dicere quod vellet, et sic jus alter! 
 qiiEBsitum auferre, quando omnin6 jura proMbent ; etiamsi talis confitens esset 
 onmi exoeptione major. Sed limitabis, q^iando inter partes convenit parere 
 confessioni et dicto unius alterius.'' 1 Masc. de Prob., Concl. 486, p. 409. See 
 ante, §§ 593, 594. 
 
 3 E. D. Turner, 1 Moo. G. 0. 347. 
 
 ■• Id. 348,- citing an anonymous decision of Wood, B. 
 
 » Gr. Ev. § 234, in great part. 
 
 15 See Cooper v. Slade, 6 H. of L. Cas. 746, 793, 794, per Ld. Wensleydale. 
 
 ^ Barwick v. Eng. Jt. Stock Bk., 2 Law Eep., Ex. 259, per Ex. Oh. ; 36 
 L. J., Ex. 174, S. 0. ; Proudfoot v. Montefiore, 2 Law Eep., Q. B. 511 ; -8 
 B. & S. 510, S. C. ; Moore v. Metrop. Ey. Co., 8 Law Eep., Q. B. 36 ; Mackay v. 
 Com. Bk. of New Brunswick, 43 L. J., P. C. 31 ; 5 Law Eep., P. C. 394, S. C, 
 See Ld. BoUnbroke v. Local Board of Health of Swindon, 43 L. J., C. P. 287. 
 
762 CONFESSIONS OF AflENTS — NEWSPAPEBS. [PAET 11. 
 
 convict him of a crime, unless further proof be given that the 
 principal has directed, or, at least, assented to such act.^ Where 
 it was proposed to show that an agent of the prosecutor, not called 
 as a witness, had offered a bribe to a witness, who also was not 
 called, the evidence was held inadmissible ; though the general 
 doctrine, as above stated, was recognised.^ 
 
 § 906. The rule thus generally laid down is open to an apparent § 827 
 exception in th€ case of the proprietor of a newspaper, who is, 
 prima facie, criminally responsible for any libel it contains, though 
 inserted by his agent or servant without his knowledge. But Lord 
 Tenterden considered this case as falling strictly within the prin- 
 ciple of the rule; for "surely," said he, "a person who derives 
 proiit from, and furnishes means for carrying on, the concern, and 
 intrusts the conduct of the publication to one whom he selects, and 
 in whom he confides, may be said to cause to be published what 
 actually appears, and ought to be answerable, though you cannot 
 show that he was individually concerned in the particular publica- 
 tion."^ Yet even here the defendant may prove, if he can, that 
 the publication was made by his servant without his authority, 
 consent, or knowledge, and that it did not arise from want of due 
 care or caution on his part.* 
 
 § 907. It remains only to be observed, that confessions, like § 828 
 admissions, may be inferred from the conduct of the prisoner, and 
 from his silent acquiescence in the statements of others, made in 
 his presence, respecting himself;' provided they were not made 
 either before a magistrate, when the prisoner, from a sense of de- 
 corum, might have felt himself restrained from interposing, or under 
 any other circumstances, which would naturally have prevented 
 
 1 Ld. Melville's case, 29 How. St. Tr. 764 ; the Queen's case, 2 B. & B. 306, 
 307 ; ante, § 724. 
 
 » The Queen's case, 2 B. & B, 302, 306—309. 
 
 '' R. V. Gutoh, M. & M. 433, 437. See, further, as to the acts of agents ante, 
 §115. " 6&7 v., c. 96, §7. 
 
 - R. V. Bartlett, 7 0. & P. 832, per BoUand, B. ; R. v. Smithies, 5 C. & P, 
 332, per Gaselee and Parke, Js, ; ante, §§ 809—816. See St. Matthew, ch. 26, 
 w. 60—63, and ch. 27, vv. 12—14. 
 
CHAP. XV.] CONFESSIONS IMPLIED FEOM ACQUIESCENCE, 763 
 
 him from replying.^ In the case of E. v. Newman/ it was sought 
 to push this doctrine to an unwarrantable length. That was an 
 information for libel, to which truth was pleaded as a justification 
 under the Act of 6 & 7 V., c. 96, and the defendant tendered 
 evidence to prove that the very imputations contained in the libel 
 in question had been previously published in another work, and 
 that the prosecutor, though well aware of that fact, had taken no 
 steps to obtain redress. The court, however, very properly rejected 
 the evidence, as being far too vague to be received in a court of 
 justice as any proof of acquiescence. 
 
 ' R. V. Appleby, 3 Stark. R. 33, per Holroyd, J. ; Melen v. Andrews, M. & M, 
 336, per Parke, B. ; Joy on Conf. 77—80 ; ante, § 814. 
 
 3 22 L. J., Q. B. 156 ; 1 E. & B. 268 ; 3 C. & Kir. 252, S. C. 
 
764 KVIDENCE EXCLUDED FEOM PUBLIC POLICY. [PAET 11. 
 
 i829 
 
 CHAPTER XVI. 
 
 EVIDENCE EXCLUDED ON GEOUNDS OF PUBLIC POLICY. 
 
 § 908.1 T]^g Ya,Tff excludes or dispenses with some kinds of evi- 
 dence on grounds of public policy: because it is thouglit that 
 greater mischiefs would probably result from requiring or permitting 
 their admission, than from wholly rejecting them. This rule of 
 law has respect, in some cases, to the person testifying, and will 
 hereafter be discussed in the chapter relating to the Competency of 
 Witnesses.* In other cases the rule applies to the matter con- 
 cerning which the witness is interrogated ; and it is to this branch 
 of the rule that our attention will at present be directed. 
 
 § 909. The first class of subjects which the law protects from § 830 
 disclosure, includes all communications between husband and wife. 
 " No husband," says the Legislature, " shall be compellable to dis- 
 close any communication made to him by his wife during the 
 marriage, and no wife shall be compellable to disclose any commu- 
 nication made to her by her husband during the marriage."^ This 
 wise enactment rests on the obvious ground, that the admission of 
 such testimony would have a powerful tendency to disturb the peace 
 of families, to promote domestic broils, and to weaken, if not to 
 destroy, that feeling of mutual confidence, which is the most 
 endearing solace of married life. The protection is not confined to 
 cases where the communication sought to be given in evidence is of 
 a strictly confidential character, but the seal of the law is placed 
 upon all communications of whatever nature which pass between 
 husband and wife.* It extends also to cases in which the interests 
 of strangers are solely involved, as well as to those in which the 
 husband or wife is a party on the record. It is, however, limited 
 
 1 Gr. Ev. § 236, in part. = Part iii. Ch. ii. 
 
 s 16 & 17 v., c. 83, § 3. 
 
 ■■ See O'Connor v. Marjoriloanks, 4 M. & Gr. 435. 
 
CHAP. XVI.] COMMUNICATIONS BETWEEN HUSBAND AND WIPE. 765 
 
 to such matters as have been communicated " during the marriage; " 
 and, consequently, if a man were to make the most confidential 
 statement to a woman before he married her, and it were afterwards 
 to become of importance in a civil suit to know what that statement 
 was, the wife, on being called as a witness, and interrogated with 
 respect to the communication, would, as it seems, be bound to 
 disclose what she knew of the matter. 
 
 § 910. In interpreting the rule it may become a question § 831 
 whether or not it be material that the relation of husband and wife 
 should be still subsisting at the time when the evidence is required 
 to be given. On the one hand, the statute speaks only of husbands 
 and wives, and makes no reference either to widowers or widows, or 
 to parties who have been divorced ; but on the other hand, the old 
 common law rule, which precluded husbands and wives from giving 
 evidence for or against each other, has been construed by the judges 
 to mean, that whatever had come to the knowledge of either party 
 by means of the hallowed confidence which marriage inspires, could 
 not be afterwards divulged in testimony, even though the other 
 party were no longer living.^ So, where a woman, who had been 
 divorced by Act of Parliament, and had married another person, 
 was offered as a witness against her former husband, to prove a 
 contract which he had made during the coverture, Lord Alvanley 
 held her clearly incompetent, adding, with his characteristic energy, 
 " It never can be endured, that the confidence, which the law has 
 created while the parties remained in the most intimate of all re- 
 lations, shall be broken, whenever, by the misconduct of one party, 
 the relation has been dissolved."^ 
 
 § 911.^ Secondly, as regards professional communications, the § 832 
 rule is now well settled, that, where a barrister or solicitor is pro- 
 
 ' O'Connor v. Marjoribanks, 4 M. & Gr. 435 ; overruling Beveridge v. 
 Minter, 1 C. & P. 364j and confirming Monroe v. Twisleton, Pea. Add. Gas. 
 219. See, also, Doker v. Hasler, Ey. & M. 198, per Best, G. J. 
 
 2 Monroe v. Twisleton, Pea. Add. Gas. 221 ; explained and confirmed by Ld. 
 Ellenborough in Aveson v. Ld. Kinnaiid, 6 East, 192, 193. 
 
 » Gr. Ev. § 237, sUglitly. 
 
766 COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT. [PAET II. 
 
 fessionally employed by a client, all communications which pass 
 between them in the course and for the purpose of that employment, 
 are so far privileged, that the legal adviser, when called as a witness, 
 cannot be permitted to disclose them, whether they be in the form 
 of title deeds, wills,^ documents, or other papers delivered, or state- 
 ments made, to him, or of letters, entries, or statements, written or 
 made by him in that capacity.'' After stating the rule in this 
 general form, it seems almost needless to add, that cases laid before 
 counsel on behalf of a client, and the opinions of counsel thereon, 
 stand upon precisely the same footing as other professional com- 
 munications from the client to the counsel and solicitor, or to either 
 of them, or from the counsel and solicitor, or from either of them, 
 to the client.' 
 
 § 912. This rule equally applies, though the 'solicitor be em- § 833 
 ployed in the character, either of a scrivener to raise money,* or of 
 a conveyancer to draw deeds of conveyance;^ or though the conver- 
 sation relate only to the sale of an estate, and to the amount of the 
 bidding to be reserved.^ In fact it extends to all communications 
 between a solicitor and his client, relating to matters within the 
 ordinary scope of a solicitor's duty.''' It seems, also, that the legal 
 
 ' Doe V. James, 2 M. &: Rob. 47. There, a party claiming as devisee vmder 
 a will, liis solicitor was not allowed to produce the wiU, though it was sug- 
 gested that it related also to personalty, and ought therefore to be deposited in 
 the Eccles. Court, and to be open for public iuspection. 
 
 '■' Herring v. Clobery, 1 Phill. 91, 96 ; Cromack v. Heathcote, 2 B. & B. 4 ; 
 Greenough v. Gaskell, 1 Myl. & K. 101. Brougham, Ch., was assisted in this 
 last decision, by consultation with Ld. Lyndhiust, Tindal, C. J., and Parke J, 
 4 B. & Ad. 876 ; and the case is mentioned by Ld. Abinger, as one in which 
 all the authorities had been reviewed, 2 M. & W. 100. See, also. Chant v. 
 Brown, 9 Hare, 790. 
 
 3 Pearse v. Pearse, 1 De Gex & Sm. 25, per K. Bruce, V.-C. ; Jenkins v. 
 Bushby, 35 L. J., Ch. 820. See Bargaddie Coal Co. v. Wark, 3 Macq. Sc. Cas. 
 H. of L. 468, 488, et seq. 
 
 * Turquand v. Knight, 2 M. & W. 100, per Ld. Abinger ; Harvey v. Clayton, 
 2 Swanst. 221, n. ; Anon., Skinn. 404, per Ld. Holt. But here it is necessary 
 that the solicitor should have been consulted as the party's own legal adviser 
 R. V. Farley, 2 C, & Kir. 313, 318. See post, § 923, ad fin. 
 
 * Cromack v. Heathcote, 2 B. & B. 4. 
 « Carpmael v. Powis, 1 Phill. 687. 
 
 ' Id, 692, per Ld. Lyndhurst. 
 
CHAP. XVI.] PROFESSIONAL COMMUNICATIONS INADMISSIBLE. 767 
 
 adviser cannot be asked whether the conference between him and 
 his client was for a lawful or an unlawful purpose/ though, if from 
 independent evidence it should clearly appear that the communi- 
 cation was made by the client for a criminal purpose, — as, for 
 instance, if the solicitor was questioned as to the most skilful mode 
 of effecting a fraud, or committing any other indictable offence, — it 
 is submitted that, on the broad principles of penal justice, he would 
 be bound to disclose such guilty project.^ Nay, it may reasonably 
 be doubted whether the existence of an illegal purpose will not also 
 prevent the privilege from attaching ; for it is as little the duty of a 
 sohcitor to advise his client how to evade the law, as it is to con- 
 trive a positive fraud.^ 
 
 § 913. Where the professional adviser is the party interrogated, § 834 
 it is quite immaterial whether the communication relate to any 
 litigation commenced or anticipated ; * for, as Lord Chancellor 
 
 • Doe V. Harris, 5 C. & P. 594, per Parke, J. 
 
 2 See E. V. Farley, 2 0. & Kir. 313 ; R. v. Avery, 8 C. & P. 596 ; Follett 
 V. Jefferyes, 1 Sim. N. S. 17, cited post, p. 782, n. 5 ; Mornington v. Momington, 
 2 Johns. & Hem. 697 ; Charlton v. Coomhes, 32 L. J., Ch. 284 ; 4 GiiF. 372, S. C, 
 per Stuart, V.-C. In Annesley v. Ld. Anglesea, 17 How. St. Tr. 1229, Serjt. 
 Tisdall, in argument, lays down the rule thus : — " If the witness is employed 
 as an attorney in any unlawful or wicked act, his duty to the public obliges 
 him to disclose it ; no private obligations can dispense with that universal one, 
 which lies on every member of society, to discover every design which may be 
 formed, contrary to the laws of society, to destroy the public weKare. For this 
 reason I apprehend that if a secret, which is contrary to the public good, such 
 as a design to commit treason, murder, or perjury, comes to the knowledge of 
 an attorney, even in a cause wherein he is concerned, the obligation to the 
 public must dispense with the private obligation to the client." Two of the 
 learned judges who tried that remarkable case, Bowes, C. B., and Mounteney, 
 B., expressed the same sentiments, see pp. 1240 — 1243. See, also, Gartside 
 V. Outram, 26 L. J., Ch. 115, per Wood, V.-C. ; and post, § 929. 
 
 => Russell V. Jackson, 9 Hare, 392, per Turner, V.-C, who observed :— " I am 
 very much disposed to think that the existence of an illegal purpose would 
 prevent any privilege attaching to the communications. Where a solicitor is 
 party to a fraud, no privilege attaches to the communications with him upon 
 the subject, because the contriving of a fraud is no part of his duty as solicitor ; 
 and I think it can as little be said that it is part of the duty of a solicitor to 
 advise his client as to the means of evading the law." See, also, KeRj v. 
 Jackson, 13 Ir. Bq. R. 129. 
 
 * Ld. Walsingham v. Goodricke, 3 Hare, 124 ; Desborough v, Rawlins, 3 Myl. 
 
768 WHBBB LEGAL ADVISER INTERROGATED. [PART II. 
 
 Brougham observed, in a case of high authority, " If^ the privilege 
 were confined to communications connected with suits begun, or 
 intended, or expected, or apprehended, no one could safely adopt 
 such precautions as might eventually render any proceedings 
 successful, or all proceedings superfluous;"^ and again, "This 
 protection is not qualified by any reference to proceedings pending 
 or in contemplation. If, touching matters that come within the 
 ordinary scope of professional employment, legal advisers receive a 
 communication in their professional capacity, either from a client, 
 or on his account and for his benefit in the transaction of his 
 business, — or, which amounts to the same thing, if they commit to 
 paper, in the course of their employment on his behaK, matters 
 which they know only through their professional relation to the 
 client, — they are not only justified in withholding such matters, 
 but bound to withhold them, and will not be compelled to disclose 
 the information or produce the papers in any court of law or equity, 
 either as party or as witness."^ 
 
 § 914.* " The foundation of this rule," adds his lordship, "is §835 
 not on account of any particular importance which the law attributes 
 to the business of legal professors, or any particular disposition to 
 afford them protection. But it is out of regard to the interests of 
 justice, which cannot be upholden, and to the administration of 
 justice, which cannot go on, without the aid of men skilled in 
 jurisprudence, in the practice of the courts, and in those matters 
 affecting rights and obligations, which form the subject of all judicial 
 proceedings."^ If such communications were not protected, no 
 man, — as the same learned judge remarked in another case, — would 
 
 & Cr. 515 ; Pearse v. Pearse, 1 De Gex & Sm. 25, per K. Bruce, V.-C. ; Sawyer 
 V. Birchmore, 3 Myl. & K. 572 ; Herring v. Clobery, 1 Pliill. 91 ; Jones v. 
 Pugli, id. 96- ; Greenougli v. Gasliell, 1 Myl. & K. 98 ; Carpmael v. Powis, 
 9 Beav. 16, 20, per Ld. Langdale. Tliese cases overrule Williams v. ]\Iudie, 
 
 1 C. & P. 158 ; Ey. & M. 34, S. C. ; Clark v. Clark, 1 M. & Rob. 3 ; Broad 
 V. Pitt, M. & M. 233 ; 3 C. & P. 518, S. C. ; and Wadsworth v. Hamshaw, 
 
 2 B. & B. 5, n. 1 Gr. Ev. §§ 240 and 237. 
 2 Greenougli v. Gaskell, 1 Myl. & K. 103. 
 
 ' Id. 101, 102. ■ 1 Gr. Ev. § 238, verbatim. 
 
 5 Greenough v. Gaskell, 1 Myl. & K. 103; quoted with approbation in 
 Russell V. Jackson, 9 Hare, 391, per Turner, V.-C. 
 
CHAP. XVI.] WHEEB LEGAL ADVISER INTEREOGATBD. 769 
 
 dare to consult a professional adviser, witli a view to his defence, or 
 to the enforcement of his rights ; and no man could safely come 
 into a court, either to obtain redress, or to defend himself.^ 
 
 § 915. The rigid enforcement of this rule no doubt operates § 836 
 occasionally to the exclusion of truth ; but if any law reformer 
 feels inclined to condemn the rule on this ground, he will do well 
 to reflect on the eloquent language of the late Lord Justice Knight 
 Bruce, who, while discussing this subject on one occasion, felici- 
 tously observed : — " Truth, like all other gpod things, may be loved 
 unwisely, — may be pursued too keenly, — may cost too much. And 
 surely the meanness and the mischief of prying into a man's confi- 
 dential consultations with his legal adviser, the general evil of 
 infusing reserve and dissimulation, uneasiness, suspicion, and fear, 
 into those communications which must take place, and which, 
 unless in a condition of perfect security, must take place uselessly 
 or worse, are too gi-eat a price to pay for truth itself."^ 
 
 § 916. Such being the reasons on which the rule is founded, its § 837 
 application has been confined, — with perhaps questionable strict- 
 
 1 Bolton 1). Corp. of Liverpool, 1 Myl. & K. 94, 95. " This rule s?ems to he 
 correlative with, that which governs the sununary jurisdiction of the courts 
 over attorneys. In Ex parte Aitken, 4 B. & A. 49, that rule is laid down 
 thus : — ' Where an attorney is employed in a matter wholly uncormected with 
 his professional character, the court will not interfere in a summary way to 
 compel him to execute faithfully the trust reposed in him. But where the 
 employment is so connected with his professional character as to afford a pre- 
 sumption that his character formed the ground of his employment by the 
 client, then the court will exercise this jurisdiction.' See, also. Ex parte 
 Yeatman, 4 Dowl. 309. So where the communication made relates to a cir- 
 cumstance so connected with the employment as an attorney, that the character 
 formed the ground of the communication, it is privileged from disclosure." 
 Per Alderson, B., in Turquand v. Knight, 2 M. & W. 101. The Roman law 
 rejected the evidence of the procurator and the advocate, in nearly the same 
 cases as the common law ; hut not for the same reasons ; the latter regarding 
 the general interests of the community, as stated in the text, while the former 
 seems to have considered such testimony as not credible, because of the 
 identity of the legal adviser's interest, opinions, and prejudices with those of 
 his client. 1 Maso. de Prob., ConcL 66 ; vol. 3, Concl. 1239 ; Farin. Op., 
 torn. 2, tit. 6, QuEest. 60, lUat. 5, 6. 
 2 Pearse v. Pearse, 1 De Gex & Sm. 28, 29. 
 
 3 n 
 
770 CLEBGYMBN AND MEDICAL MEN NOT PRIVILEGED. [PAKT II. 
 
 ness, — to commuiiications which pass between a client and his legal 
 adviser ; and the protection has not been permitted to extend to 
 any matters communicated to other persons, though such commu- 
 nications were made under terms of the closest secrecy. Thus,^ 
 clergymen'^ and medical men^ are bound to disclose any information, 
 which by acting in their professional character they have confiden- 
 tially acquired ; and clerks,* bankers,^ stewards,^ confidential 
 friends,'' and, perhaps, even licensed conveyancers,^ are equally 
 obliged to reveal what has been imparted to them in confidence, 
 except as to matters which the principal himself would not be com- 
 pelled to disclose, such as his title-deeds and private papers, in a 
 case in which he is not a party. 
 
 § 917.^ The propriety of extending the privilege to communi- 
 cations made to clergymen in reference to criminal conduct, has 
 been strongly urged, on the ground that evil-doers should be 
 enabled with safety to disburthen their guilty consciences, and by 
 spiritual instruction and discipline to seek pardon and relief. The 
 law of Papal Eome has adopted this principle in its fullest extent, 
 not only, — as already intimated,^" — by excepting such confessions 
 
 1 Or. Ev. § 248, in part. ^ R. v. Gilham, 1 Moo. C. C. 186. 
 
 3 Duch. of Kimgston's case, 11 Harg. St. Tr. 243 ; 20 How. St. Tr. 572, S. C. ; 
 E. V. Gibbons, 1 C. & P. .97 ; Broad v. Pitt, 3 id. 519, per Best, C. J. ; M. & M. 
 234, S. C. In Wilson v. Eastall, 4 T. R. 760, BuUer, J., miicli regretted that 
 tlae law of privilege was not extended to those cases, in wliicli medical persons 
 acquired information by attending in their professional characters ; and, in 
 ■Greenough v. Gaskell, 1 Myl. & K. 103, Ld. Broiigham, while stating that the 
 Tiile was limited to legal advisers, observed, that " certainly it may not be very 
 easy to discover why a like privilege has been refused to others, especially to 
 medical advisers." By the N, York Civ. Code, § 1710, r. 4, " a licensed 
 physician or surgeon cannot, withont the consent of his patient, be examined, 
 in a civil action, as to amy information acquired in attending the patient, 
 which was necessary to enable him to prescribe or act for the patient." A 
 somewhat similar statute exists in Missouri, Eev. Code of 1835, p. 623, § 17. 
 
 ■' Lee V. Birrell, 3 Camp. 337 ; "Webb v. Smith, 1 C. & P. 337'. 
 
 « Loyd V. Freshfield, 2 C. & P. 325, per Abbott, C. J. 
 
 « Vaillant v. Dodemead, 2 Atk. 524 ; 4 T. R. 759, per Buller, J. ; Ld. Fal- 
 mouth V. Moss, 11 Price, 455. 
 
 ^ 4 T. R. 758, per Ld. Kenyon ; Hoffman v. Smith, 1 Caines, 157, 159. 
 
 « See per Parke, B., in Turquand v. Knight, 2 M. & W. 100. 
 
 * Gr. Ev. § 247, in great part w Ante, § 879, n. 5. 
 
 838 
 
CHAP. XVI.] COMMUNICATIONS MADE TO THE CLEEGT. 771 
 
 from the general rules of evidence, but by punishing the priest who 
 reveals them. It has even gone further ; for Mascardus, — after 
 observing that, in general, persons coming to the knowledge of facts 
 under an oath of secrecy are compellable as witnesses to disclose 
 them, — states that confessions to a priest are not within the operation 
 of the rule, since they are made not so much to the priest as to the 
 Deity whom he represents ; and he thence draws the Jesuitical con- 
 clusion that the priest, when appearing as a vntness in his private 
 character, may lawfully swear that he knows nothing of the subject : 
 " Hoc tamen restringe, non posse procedere in sacerdote producto 
 in testem contra reum criminis, quando in confessions sacramentali 
 fait aliquid sibi dictum, quia potest dicere, se nihil scire ex eo ; quod 
 illud, quod scit, scit ut Deus, et id Deus non produciter in testem, 
 sed ut homo, et tanquan homo ignorat illud super quo producitur." ^ 
 In Scotland, where a prisoner in custody and preparing for his trial 
 has confessed his crimes to a clergyman, in order to obtain spiritual 
 advice and comfort, such confession is privileged ; but this privilege 
 is not carried so far as to include communications made confiden- 
 tially to clergymen in the ordinary course of their duty.^ Though 
 the law of England encourages the penitent to confess his sins "for 
 the unburthening of his conscience, and to receive spiritual conso- 
 lation and ease of mind ; " yet the minister, to whom the confession 
 is made, is merely excused from presenting the offender to the civil 
 magistrate, and enjoined not to reveal the matter confessed, " under 
 pain of irregularity."^ In all other respects he is left to the full 
 operation of the rules of the common law, which recognise no dis- 
 tinction between clergymen and laymen, but provide that all con- 
 fessions and other matters, not confided to legal counsel, must be 
 disclosed when required for the purposes of justice.* Neither peni- 
 tential confessions made to the minister or to members of the party's 
 own Church, nor even secrets confided to a Eoman Catholic priest in 
 the course of confession, are regarded as privileged communications.^ 
 
 ' 1 Mas. de Prob. Qujest. v. n. 51 ; id. Concl. 377. Vide Farin. Op., tit. 8, 
 Quajst. 79, n. 73. 
 
 2 Tait, Ev. 386, 387 ; Alison, Pract. of Cr. L. 586 ; 2 Dickson, Ev. 937—939. 
 
 3 Const. & Can. 1 J. 1, Can. cxiii. ; 2 Gibson, Cod. p. 963. 
 < R. V. Gilham, 1 Moo. C. C. 186. 
 
 * Butler V. Moore, M'Nally, Ev. 253—255 ; Anon., SMn. 404, per Holt, C. J. ; 
 
 3 D 2 
 
772 TITLE-DEEDS TRUSTEES MORTGAGEES. [PAET II. 
 
 § 918. Although the privilege, in its full extent, applies only to § 839 
 the communications which pass between a client and his legal 
 adviser,^ yet, with respect to the production of title-deeds, the 
 protection has been held applicable to the case of trustees and 
 mortgagees, who cannot be compelled either to produce the deeds of 
 the cestuis que trust, or mortgagors, or to give parol evidence of 
 their contents.^ It may here be laid down as a general proposition, 
 that, whenever a party is justified in refusing to produce an instru- 
 ment, he cannot be forced to disclose its contents ; and although 
 some few dicta, or even decisions,^ to the contrary may be found, 
 the rule as above stated may now be considered as established. 
 To adopt an observation of Mr. Baron Alderson,* " It would be 
 perfectly illusory for the law to say that a party is justified in not 
 producing a deed, but that he is compellable to give parol evidence 
 of its contents ; that would give him, or rather his client through 
 him, merely an illusory protection, if he happens to know the 
 contents of the deed, and would be only a roundabout way of getting 
 from every man an opportunity of knowing the defects there may 
 be in the deeds and titles of his estate." 
 
 Du Barr6 v. Livette, Pea. E. 77 ; Com. v. Drake, 15 Mass. 161. By the N. 
 York Civ. Code, § 1710, r. 3, " A clergyman or priest cannot, without the 
 consent of the person making the confession, he examined as to any confession 
 made to him in his professional character, in the course of discipline enjoined 
 hj the Church to which he belongs." A somewhat similar statute exists in 
 Missouri ; Eev. St. of .1835, p. 623, § 16. In Broad v. Pitt, 3 C. & P. 519 ; 
 M. & M. 234, S. C, Best, C. J., said, that he, for one, would never compel a 
 clergyman to disclose communications made to him by a prisoner ; but that if 
 he chose to disclose them, he would receive them in evidence. In R. v. Griffin, 
 G Cox, 219, Alderson, B., is reported to have gone further, and to have 
 expressed an opinion that commtinications made by a prisoner to a clergyman 
 ought not to be disclosed. See, also, E. -u. Hay, 2 Post. & Fin. 4 ; Joy on Conf. 
 49 — 58 ; Jer. Taylor's Sermon on the Anniversary of Gunpowder Treason, 
 6 vol. of his Works, pp. 614^622, ed. 1828 ; and a very learned pampHet by 
 the late Mr. Badeley on the Privilege of EeKgious Confessions in EngUsh 
 Courts of Justice, publ. in 1865. 
 
 1 Thomas v. EawUngs, 27 Beav. 140. 
 
 2 Davies v. Waters, 9 M. & W. 608 ; E. v. Upper Boddington, 8 D. & E. 726 ; 
 Chichester v. M. of Donegal, 39 L. J., Ch. 694, per Giffard, L. J. See Few 
 V. Guppy, 10 Beav. 281, n. 6 ; 13 Beav. 457, S. C. Also, ante, § 458. 
 
 ^ See Cocks v. Nash, 6 C. & P, 154, per Gurney, B. ; Marston v. Downes, 
 1 A. & E. 31 ; 3 N. & M. 861, S. C, observed upon by Eolfe, B., in 9 M. & W. 
 613, 614. i Davies v. Waters, 9 M. & W. 612. 
 
CHAP. XVI.J SOLICITOR WITHHOLDING CLIENT'S PAPERS. 773 
 
 § 919. The protection afforded to professional confidence applies § 840 
 ■with equal force, though the client be in no shape before the 
 court ; ^ and although the rule which excludes hearsay prevents 
 this question from often arising with respect to mere oral communi- 
 cations, it has often been discussed on occasions when a solicitor 
 has been called upon, either by subpoena duces tecum or otherwise, 
 to produce a document with which he has been confidentially 
 intrusted by some stranger to the suit. In such a case, if the 
 solicitor claims the privilege of the client, he will be protected not 
 only from producing the deed or other paper, but from answering 
 any question with respect to its nature ;^ and although on several 
 occasions the court has inspected the document, and pronounced 
 upon its admissibility, according as its production has appeared to 
 be prejudicial or not to the client,^ it seems to be now settled, that, 
 in strict law, the judge ought not to look at the writing to see 
 whether it is a document which may properly be withheld.* The 
 same rule appHes where the documents called for are in the hands 
 of solicitors for the trustees of bankrupts,^ though it was at one 
 time thought that their production was a matter of public duty.^ 
 In all these cases, if the client or principal would have been entitled, 
 had he been called as a witness, to withhold the document, the 
 solicitor, agent, or steward cannot be compelled, though he will be 
 permitted, to produce it ; "^ but if both the chent ajad the solicitor, 
 or the principal and the agent, concur ia refusing to produce the 
 document, the party calling for it may, in such an event, give 
 secondary evidence of its contents.^ 
 
 ' E. V. Withers, 2 Camp. 578, per Ld. EUenborough. 
 
 2 Volant V. Soyer, 13 Com. B. 231. 
 
 ' 1 Ph. Ey. 175; Doe v. Langdon, 12 Q. B. 711 ; Copeland v. Watts, 1 
 Stark. E. 95 ; Harris v. Hill, D. & E., N. P. E. 17 ; 3 Stark. E. 140, S. C. ; 
 Ditcher v. Kenriok, 1 C. & P. 161 ; Doe v. Thomas, 9 B. & C. 288 ; 4 M. & E. 
 218, S. 0. ^ Volant v. Soyer, 13 Com. B. 231. 
 
 ' Laing v. Barclay, 3 Stark. E. 42 ; Bateson v. Hartsink, 4 Esp. 43 ; Cohen 
 i>. Templar, 2 Stark. E. 260 ; Hawkins v. Howard, Ey. & M. 64 ;' 1 C. & P. 
 222, S. C. ; Corsen v. Duhoia, Holt, N. P. E. 239 ; Bull v. Loveland, 10 Pick. 
 9, 14. 
 
 " Pearson v. Fletcher, 5 Esp. 90, per Ld. Ellenhorough. 
 
 ? Hibberd v. Knight, 2 Ex. E. 11. See ante, § 458. 
 
 8 Ditcher i;. Kenrick, 1 C. & P. 161 ; E. v. Hunter, 3 C. & P. 591. As to 
 
774 INTEBPEETEES, SOLICITOES' AGENTS PBIVILEGED. [PAET 11. 
 
 § 920.^ This protection, though confiiied to communications § 841 
 between a client and his legal adviser,^ extends to all the neces- 
 sary • organs by which such communications are effected ; and 
 therefore an interpreter,^ or an intermediate agent* is under the 
 same obligation as the legal adviser himself; and if the legal 
 adviser has communicated with such person, he will be as much 
 bound to silence, as if he had communicated directly with his 
 client.^ The rule also extends to a solicitor's town or local 
 agent^ (who is considered as standiag in precisely the same situa- 
 tion as the solicitor), to a Scotch solicitor, and to a Scotch law 
 agent practising in England;'' and it has been held applicable 
 to a case submitted, after the institution of the suit, to a foreign 
 counsel, and to his opinion thereon.^ Formerly it was thought 
 that a barrister's or a solicitor's clerk was not within the reason 
 and exigency of -the rule; but as the principals, being unable to 
 transact all their business in person, are under the necessity of 
 employing clerks, it has siuce been held, that such clerks cannot 
 be permitted to disclose facts coming to their knowledge iu the 
 course of employment, unless the barrister or solicitor himself 
 might have been interrogated respecting them.^ So, where a 
 
 the cases where a witness may refuse to produce his deeds, or to disclose their 
 contents, see ante, §§ 457 — 460. 
 
 1 Gr. Ev. § 239, in part. 2 Thomas v. Eawlings, 27 Beav. 140. 
 
 ^ Du Barre v. Livette, Pea. R. 77, explained in 4 T. R. 756 ; Jackson v. 
 French, 3 Wend. 337 ; Andrews v. Solomon, 1 Pet. C. C. R. 356 ; Parker v. 
 Carter, 4 Mnnf. 273. 
 
 ■> Bustros ». White, L. R., 1 Q. B. D. 423, 427, per Jessel, M. R. ; Bunhury 
 ■e. Bunhury, 2 Beav. 173 ; Walker v. Wildman, 6 Madd. 47 ; Hooper v. Gimim, 
 2 Jolins. & Hem. 602 ; Churton v. Frewen, 2 Drew. & Sm. 390 ; Jenkins v. 
 Bushhy, 35 L. J., Ch. 820 ; Reid v. Langlois, 1 M. & Gord. 627, 638, 639, per 
 Ld. Cottenham ; 2 Hall & T. 59, 73, 74, S. C. See Doe v. Jaimcey, 8 C. & P. 
 101, 
 
 » Carpmael v. Powis, 9 Beav. 16, 20, 21, per Ld. Langdale ; S. C. 1 Phill. 
 692, 693, per Ld. Lyndhurst, recognising Walker v. Wildman, 6 Madd. 47. 
 
 « Parkins v. Hawkshaw, 2 Stark. R. 239, per Hoh'oyd, J. ; Tait, Ev. 385 ; 
 Goodall V. Little, 20 L. J., Ch. 132 ; 1 Sim. N. S. 155, S. C. 
 
 ' Lawrence v. Campbell, 4 Drew. 485. 
 
 * Bunbury v. Bunbury, 2 Beav. 173. 
 
 5 Taylor v. Forster, 2 C. & P, 195, per Best, C. J., cited with approbation in 
 12 Pick. 93 ; Foote v. Hayne, 1 0. & P. 545 ; Ry. & M. 165, S. C, per Abbott, 
 C, J. ; Chant v. Brown, 9 Hare, 790 ; Bowman v. Norton, 5 C. & P. 177, per 
 
CHAP. XVI.] party's own AGENTS NOT PRIVILEGED. 775 
 
 plaintiff, at the instance of his solicitors, sent out a gentleman to 
 India, for the express purpose of acting as the solicitor's agent in 
 the coUectign of evidence respecting a pending suit, letters written 
 by the agent either to the plaintiff himself or to his soHcitors on 
 the subject of the evidence, have been regarded by the court as 
 confidential communications.^ 
 
 § 921. The rule of protection, however, will not be carried to § 842 
 any further extent ; and therefore, where the directors of a joint- 
 stock company sent agents abroad to assist in winding up the 
 affairs of the company, a correspondence between the directors 
 and agents relative to legal proceedings, which had been com- 
 menced against the directors by certain creditors of the company, 
 was held not to be privileged, though many of the letters had 
 been written for the purpose of aiding the directors in their 
 defence, and of being submitted to their solicitors.^ Indeed, it 
 may be laid down generally, in the language of Lord Cranworth, 
 that "there is no protection as to letters between parties them- 
 selves, or from a stranger to a party, merely because such letters 
 may have been written in order to enable the person to whom 
 they were addressed to communicate them in professional confi- 
 dence to his solicitor.^ 
 
 Tindal, C. J. ; R. v. Upper Boddington, 8 D. & E. 726, per Bayley, J. ; Mills 
 V. Oddy, 6 C. & P. 731 ; Jackson v. French, 3 Wend. 337. 
 
 ' Steele i>. Stewart, 1 Phill. 471 ; Cossey v. Lond. Bright. &o. Ey. Co., 5 Law 
 Eep., C. P. 146 ; 39 L. J., C. P. 174, S. C. ; Lafone v. Falkland Islands Co., 
 27 L. J., OK. 25, per Wood, V.-C. ; 4 K. & J. 34, S. C; Hooper v. Gumm, 
 2 Johns. & Hem. 602 ; Walsham v. Stainton, 2 Hem. & M. 1 ; Eoss v. Gibbs, 
 8 Law Eep., Eq. 522 ; 39 L. J., Ch. 61, S. C. 
 
 2 Glyn. V. Caulfield, 3 M. & Gord. 463, 473—475, per Ld. Truro ; Anderson 
 u British Bk. of Columbia, 45 L. J., Ch. 449 ; L. E., 2 Ch. D. 644, S. C. 
 See Baker v. Lond. & S.-W. Ey. Co., 37 L. J., Q. B. 53 ; 3 Law Eep., Q. B. 91 ; 
 8 B. & S. 645, S. C. 
 
 ' Goodall V. Little, 1 Sim. N. S. 155 ; recognised by Ld. Truro in Glyn v. 
 Caiilfield, 3 M. & Gord. 474 ; and in Betts v. Menzies, 26 L. J., Ch. 528, per 
 Wood, V.-C. See also Smith v. Daniell, 44 L. J., Ch. 189, where an opinion, 
 which had been given confidentially and as a friend by Ld. We.«;tlauiy on a case 
 submitted to him, was ordered to be produced. Bu^t see Jenkins v. Bushby, 
 35 L. J., Ch. 820 ; and Hamilton v. Nott, 42 L. J., Ch. 512, per MaUns, V.-C.; 
 16 Law Eep., Eq. 112, S. C. 
 
776 SOLICITOR MUST BE ACTING AS LEGAL ADVISEE. [PART II. 
 
 § 922. As the privilege is established, not for the benefit of the § 843 
 solicitor, but for the protection of the client,^ it would seem to 
 extend to an executor in regard to papers coming to his hands as 
 the personal representative of the solicitor.^ If, however, a 
 solicitor, in violation of his duty, should voluntarily communicate 
 to a stranger the contents of an instrument with which he was 
 confidentially intrusted, or should permit him to take a copy, the 
 secondary evidence so obtained would, it seems, be admissible, 
 provided that notice to produce the original were duly given, and 
 the production were resisted on the ground of privilege.^ Indeed,* 
 it has more than once been laid down, that the mere fact that 
 papers and other subjects of evidence have been illegally taken 
 from the possession of the party against whom they are offered, 
 or otherwise unlawfully obtained, constitutes no valid objection to 
 their admissibility, provided they be pertinent to the issue. For 
 the court will not notice whether they were obtained lawfully or 
 unlawfully, nor will it raise an issue to determine that question.^ 
 
 § 923. In order to protect communications, they must have § 844 
 been made to the legal adviser, while he was acting, or at least 
 while he was considered by the client as acting,^ in that capacity. 
 The rule,''' however, does not require any regular retainer, or any 
 particular form of application or engagement, or the payment of 
 
 1 Herring v. Clobery, 1 PMll. 96, per Ld. Lyndturst ; B. N. P. 284, a. 
 
 2 Fenwick v. Reed, 1 Meriv. 114, 120, arg. 
 
 ' Cleave v. Jones, 21 L. J., Ex. 106, per Parke, B. ; Lloyd v. Mostyn, 10 
 M. & W. 481, 482, per id., questioning the contrary decision of Bayley, J., in 
 Fisher v. Heming, cited 1 Ph. Ev. 170. In Lloyd v. Mostyn, Parke, B., 
 likened the case to that of an instrument being stolen, and a correct copy 
 taken, and asked whether it would not be reasonable to admit such copy ? 
 If the client sustains any injury from such improper disclosure being 
 made, an action will lie against the solicitor. Taylor v. Blacklow, 3 Bing. 
 N. C. 235. 
 
 ^ Gr. Ev. § 254a, in great part. 
 
 ^ Legatt V. ToUervey, 14 East, 301 ; Jordan v. Lewis, id. 305, n. ; Doe v. Date, 
 3 Q. B. 619 ; Com. v. Dana, 2 Mete. 329, 337. 
 
 " Smith V. Fell, 2 Curt. 667. There a communication was held to be 
 privileged, which was made by a party to a solicitor, under the impression that 
 the latter acceded to a request to act as his legal adviser. 
 
 ' Gr. Ev. § 241, in part. 
 
CHAP. XVI.] EULE OF PROTECTION WHEN CLIENT INTERROGATED. 777 
 
 any fees ; it is enough if the legal adviser he, in any way, con- 
 sulted in his professional character.^ It would also seena that if a 
 person be consulted confidentially, under the erroneous supposi- 
 tion that he is. a lawyer, he cannot be compelled to disclose the 
 matters communicated.^ But where a prisoner in custody on a 
 charge of forgery wrote to a friend, requesting him " to ask Mr. G. 
 or any other attorney" a question respecting the punishment of 
 forgery, the letter was admitted in evidence, on the ground that it 
 did not appear that the relation of attorney and client ever sub- 
 sisted between Mr. Gr. and the prisoner.^ _ So, if a party were to 
 go to a solicitor to discount a forged note, or to raise money on 
 a forged will, what passed at the interview would of course not be 
 privileged, unless, perhaps, in the event of the solicitor being con- 
 sulted as the party's own lavyyer.* 
 
 § 924. The question of privileged communications has hitherto § 845 
 been considered with respect to cases in which the legal adviser 
 is called as a witness ; but although the privilege is, as before 
 observed, that of the client, and not that of the professional 
 adviser, the rule of protection was for many years laid down ia less 
 broad terms, where the client himself was the party interrogated.^ 
 It was indeed long since established, that, in that event, all com- 
 munications between the solicitor and client, whether pending 
 and with reference to litigation, or made before litigation and 
 v?ith reference thereto, or made after the dispute between the 
 parties followed by litigation, though not in contemplation of, or 
 with reference to, that litigation, were protected ; as also were 
 •communications made respecting the subject-matter in question, 
 pending, or in contemplation of, litigation on the same subject 
 with other persons, with the view of asserting the same right.^ 
 
 ' Foster v. Hall, 12 Pick. 89. See, also. Bean d. Quimby, 5 New Hamps. 94. 
 ^ Galley v. Ricliards, 19 Beav. 401, 404, per Romilly, M. E., questioning 
 Fountain v. Young, 6 Esp. 113, per Sir J. Mansfield. 
 ' E. V. Brewer, 6 C. & P. 363, per Park, J. 
 
 * E. V. Farley, 2 C. & Kir. 313, 317, 318. See ante, § 912 ; post, § 929. 
 
 * See Macoann v. Maccann, 3 Swab. & Trist. 142, per Cresswell, J. 0. 
 
 " Holmes v. Baddeley, 1 Phill. 476 ; per Wigram, V.-C, in Ld. Walsingham 
 V. Goodrioke, 3 Hare, 124, 125, citing Bolton v. Corp. of Liverpool, 3 Sim. 467 ; 
 1 Myl. & K. 88, S. 0. ; Hughes d." Biddulph, 4 Russ. 190 ; Goodall v. Little, 
 
778 RADCLIFFE V. FUESMAN MINET V. MOEGAN. [PART 11. 
 
 If, however, communications passed between a client and solicitor 
 before any dispute had arisen between the client and his opponent, 
 the opponent could compel the client by a bill in equity to disclose 
 these communications, although they related to the. matters which 
 formed the subject of the suit, except so far as they contained mere 
 legal advice or opinions.^ 
 
 § 925. This doctrine was propounded in the case of Eadcliffe § 846 
 V. Fursman^ by the House of Lords, at a time when the subject 
 of professional confidence was not developed to the same extent 
 as it is at the present day ; ^ but although that decision was after- 
 wards disapproved of by almost every judge under whose notice it 
 was brought, and its principle was more than once successfully 
 exposed and refuted,* it was still reluctantly followed till the year 
 1873, when Lord Chancellor Selborne had the hardihood to set it 
 at nought in the important case of Minet v. Morgan.^ 
 
 1 Sim. N. S. 155 ; Thompson v. Falk, 1 Drew. 21 ; Vent v. Pacey, 4 Russ. 193 ; 
 Clagett V. PliilUps, 2 Y. & C, Ch. R. 82 ; Combe v. Corp. of London, 1 id. 631. 
 See, also, Woods v. Woods, 4 Hare, 83 ; Reece v. Trye, 9 Beav. 316 ; Adams 
 V. Barry, 2 Y. & C, Ch. R. 167 ; Knight v. M. of Waterford, 2 Y. & C, Ex. R. 
 38 ; Curling v. Perring, 2 Myl. & K. 38 ; and Nias v. North. & East. Ry. Co., 
 3 Myl. & Cr. 355. These cases overrule Preston v. Carr, 1 Y. & J. 175, and 
 Newton v. Beresford, 1 You. 376. See 3 Hare, 129. 
 
 1 Ld. Walsingham v. Goodrioke, 3 Hare, 122, per Wigram, V.-C, reluctantly 
 Buhmitting to Radcliffe v. Fursman, 2 Br. P. G. 514, Toml. ed. See, also, 
 Penruddook v. Hammond, 11 Beav. 59 ; Hawkins v. Gathercole, 1 Sim. N. S. 
 150 ; Beadon v. King, 17 Sim. 34 ; and Greenlaw v. King, 1 Beav. 137, in 
 which last case Ld. Langdale compelled a son and heir to discover a case, 
 which had heen submitted to counsel by his father, and had come with the 
 estate to his hands. See, contra, Wilson v. Northampton & Banbury Junct. 
 Ry. Co., 14 Law Rep., Eq. 477, per Malins, V.-C. See, fmther, Manser v. 
 Dix, 1 Kay & J. 451, per Wood, V.-C. ; Macfarlan v. Rolt, 14 Law Rep., Eq. 
 580, per Wickens, V.-C. ; and Calley v. Richards, 19 Beav. 401, 405, per 
 Romilly, M. R. 
 
 2 2 Br. P. C. 514, Toml. ed. 3 Per Wigram, V.-C, 3 Hare, 127. 
 ' See Bolton ii. Corp. of Liverpool, 1 Myl. & K. 88, per Ld. Brougham ; 
 
 Pearse v. Pearse, 1 De Gex & Sm. 24, 25, per K. Bruce, V.-C. ; Walker v. 
 Wildman, 6 Madd. 47 ; Pjeston v. Carr, 1 Y. & J. 175 ; Ld. Walsingham v. 
 Goodrioke, 3 Hare, 127—130 ; Bp. of Meath v. M. of Winchester, 10 Bli. 375, 
 455 ; Pearse v. Pearse, 1 De Gex & Sm. 12. See, also, two articles in Law 
 Mag., vol. xvii., pp. 51—74, and vol. xxx., pp. 107—123. 
 ' 8 Law Rep., Ch. Ap. 361 ; 42 L. J., Ch. 627, S. C. ; followed by Hall, 
 
CHAP. XVI.] SOLICITOR ACTING FOR OPPOSITE PARTIES. 779 
 
 § 926. If a solicitor be employed for two parties, as for mortgagor 
 and mortgagee, and peruse on behalf of tbe former his abstracts of 
 the title, he cannot, as against him, disclose their contents ; ^ and 
 where a professional man was engaged by vendor and purchaser to 
 prepare the deeds, and the draft conveyance was confidentially de- 
 posited with him by both parties, it was held that he could not pro- 
 duce it at the trial against the interest of the purchaser's devisees, 
 though with the consent of the vendor.^ If, however, a solicitor, 
 acting as such for opposite parties, has an offer made to him by the 
 one for the purpose of being communicated to the other, he may be 
 called upon to disclose the nature and terms of this offer at the 
 instance of either party.^ And, where two persons, having a dis- 
 pute about a claim made by one of them upon the other, went 
 together to a solicitor, when one of them made a statement, and in- 
 structed the, solicitor to write a letter to a third party on the subject 
 of the claim, — it was held that, in a subsequent action between these 
 two persons, both the statement and the letter were admissible in 
 evidence.* So, if a wife were induced by her husband to deal with 
 her separate interest under the advice of her husband's solicitor, he 
 would be regarded by the client as acting for both husband and 
 wife ; and, consequently, in the event of any dispute arising between 
 the married couple, each party would be entitled to call for the pro- 
 duction, and to have full inspection, of all documents that might 
 have come into the possession of the solicitor in the course of the 
 transaction.^ In all these cases the question would seem to be, was 
 the communication made by the party to the witness in the character 
 of his own exclusive solicitor ? If it was, the bond of secrecy is 
 
 V.-C, in Turton v. Barber, 17 Law Eep., Bq. 329 ; 43 L. J., Oh. 468, S. C. ; 
 and in Bacon v. Bacon, 34 L. T. 349 ; and by C. P. D. in Mostyn v. West 
 Mostyn Coal & Iron Co., 34 L. T. 531. 
 
 * Doe V. Watkins, 3 Bing. N. C. 421 ; 4 Scott, 155, S. C. But see E. v. 
 Avery, 8 C. & P. 596, cited post, § 929. 
 
 2 Doe V. Seaton, 2 A. & E. 171 ; 4 N. & M. 81, S. C. 
 
 3 Baugh v. Cradocke, 1 M. & Bob. 182 ; Cleve v. Powel, id. 228 ; Perry v. 
 Smith, 9 M. & W. 681 ; Eeynell v. Sprye, 10 Beav. 51. 
 
 * Shore v. Bedford, 5 M. & Gr. 271. See, also, Griffith v. Darner, 5 B. & Ad. 
 502, and Weeks v. Argent, 16 M. & W. 817. 
 
 * Warde v: Warde, 3 M. & Gord. 365 ; oveiTuling a decision of Ld. Cran- 
 worth in the same case, reported 1 Sim. N. S. 18. 
 
780 PROTECTION REMAINS FOR EVER. [PART II. 
 
 imposed upon the witness ; if it was not, the communication will 
 not be privileged.^ 
 
 § 927.^ The protection does not cease with the termination of the § 849 
 suit, or other litigation or business, in which the communications 
 were made ; nor is it affected by the party's ceasing to employ the 
 solicitor, and retaining another, nor by any other change of relation 
 between them, nor by the solicitor's being struck off the roUs,^ nor 
 by his becoming personally interested in the property, to the title 
 of which the communications related,* nor even by the death of the 
 client. The seal of the law, once fixed upon the communications, 
 remains for ever,^ unless it be removed either by the party himself,^ 
 in whose favour it was placed, or perhaps, in the event of his death, 
 by his personal representative ; '' and, therefore, if the client 
 becomes a bankrupt, his trustee cannot waive the privilege without 
 his particular permission.^ Neither does the client waive his 
 privilege by calling the solicitor as a witness, unless he also ex- 
 amines him in chief to the matter privileged ; ^ and even in that 
 case, it has been held in Ireland, that the cross-examination must 
 be confined to the point upon which the witness has been examined 
 in chief.^° 
 
 § 928. In stating that the privilege does not terminate with the § 850 
 
 1 Perry v. Smith, 9 M. & W. 682, 683, per Parke, B. ; Eeynell v. Sprye, 10 
 Beav. 51. 
 
 2 Gr. Ev. § 243, in part. 
 
 3 Ld. Cholmondeley v. Ld. Clinton, 19 Ves. 268. 
 * Chant V. Brown, 7 Hare, 79. 
 
 5 "Wilson V. Rastall, 4 T. E. 759, per BuUer, J. ; Parker v. Yates, 12 Moore, 
 520. But see Charlton v. Coombes, 32 L. J., Ch. 284, per Stuart, V.-C. ; 4 
 Giff. 372, S. C. 
 
 « Merle v. More, Ey. & M. 390, per Best, C. J. ; Baillie's case, 21 How. St. 
 Tr. 341, 358, 408. " If the client he willing, the court will compel the counsel 
 to discover what he knows,'' per North, C. J., in Lea v. Wheatley, in C. B. 
 Parch. 30 Car. 2, cited in n. to 20 How. St. Tr. 574. See, also, Blenkinsop 
 V. Blenkinsop, 17 L. J., Ch. 343, and Chant v. Brown, 7 Hare, 79. 
 
 ? Doe V. M. of Hertford, 19 L. J., Q. B. 526. 
 
 « Bowman v. Norton, 5 C. & P. 177, per Tindal, C. J. 
 
 ' Vaillant v. Dodemead, 2 Atk. 524 ; "Waldron v. Ward, Sty. 449 ; Bate v. 
 Kinsey, 1 C. M. & R. 38. 
 
 w M'Donnell v. Conry, Ir. Cir. E. 807, per Eiohards, B. 
 
CHAP. XVI.] WHETHER PROTECTION EXTENDS TO CRIMES. 781 
 
 death of the client, care must be taken to distinguish between 
 cases where disputes arise between the client's representatives and 
 strangers, and those in which both the litigating parties claim under 
 the client. In the former class of cases no doubt the. protection 
 will survive for the benefit of those who represent the client ; but 
 in the latter, it would be obviously unjust to determine that the 
 privilege should belong to the one claimant rather than to the other. 
 The rule, therefore, has no application in cases of testamentary dis- 
 positions, and as between parties claiming under the testator ; and 
 where the question was, whether certain executors were or were not 
 trustees for the testator's next of kin, the evidence of the solicitor 
 who prepared the will as to what had passed between him and the 
 testator on the subject of the will, has been received on behalf of 
 the next of kin.-^ 
 
 § 929. "Whether the protection can be removed without the § 851 
 client's consent, in cases where the interests of criminal justice 
 require the production of the evidence, may admit of some doubt.^ 
 In one case where a party had intrusted a solicitor with a promis- 
 sory note, and had instructed him to bring an action upon it, Mr. 
 Justice Holroyd held that the solicitor ought not to produce the 
 note, on the trial of a subsequent indictment against his client for 
 forgery ; ^ and a similar decision appears to have been pronounced 
 by the Court of King's Bench in the time of Lord Mansfield.* On 
 the other hand, Mr. Justice Patteson has compelled a solicitor, 
 who had been employed by a mortgagor and mortgagee to negotiate 
 a loan between them, and had received from the former a forged 
 will as part of his title-deeds, to produce the will on a trial of the 
 mortgagor for forgirig that instrument.^ So, where a party having 
 
 1 Eussell V. Jackson, 9 Hare, 393, per Tinner, V.-C. 
 
 2 R. V. Tylney, 18 L. J., M. C. 37, S. C, nom. E. v. Tuffs, 1 Den. 319. 
 
 3 R. V. Smith, cited in 1 Ph. Ev. 171. See, also, R. ■». Hankins, 2 C. & Kir. 
 823. 
 
 * R. V. Dixon, 3 Burr. 1687. See, also, Anon., 8 Mass. 370. 
 
 5 R. V. Avery, 8 C. & P. 596, 599. In this case the learned judge is reported 
 to have said that R. v. Smith was not law, hut in E. v. Tylney, 18 L. J., M. C. 
 37, S. C, nom. R. v. Tuffs, 1 Den. 324, he intim.ated that this language was too 
 strong. See, also, ante, §§ 912, 923. 
 
782 APPAKENT EXCEPTIONS TO KULE. [PAKT II. 
 
 possessed himself of the title-deeds of a deceased person, placed a 
 forged will of the deceased amongst them, and then sent the whole 
 to his solicitor, ostensibly for the purpose of asking his advice upon 
 them, but really, as it seemed, that the solicitor might find the will 
 and act upon it, — the judges unanimously held, that the solicitor 
 was bound to produce the will on the trial of his client for forgery, 
 it not having been intrusted to him in professional confidence, even 
 if that would have made any difference} Again, where a prisoner 
 was indicted for forging a will, and it appeared that his wife had 
 taken the will to a solicitor, and asked him to advance money upon 
 it for her husband, which he refused to do, but took a copy of the 
 will, the judges most properly held that such copy was admissible 
 as secondary evidence, and that the conversation between the wife 
 and the solicitor was not privileged.^ This last case, however, is 
 scarcely an authority on either side of the question ; for the judges 
 took the distinction that the solicitor consulted was not the pri- 
 soner's own legal adviser. 
 
 § 930.^ This rule may be further illustrated by reference to the § 852 
 cases in which the solicitor may be examined, and which are therefore 
 sometimes mentioned as exceptions to the rule. These apparent ex- 
 ceptions* are, — where the knowledge was not acquired by the solicitor 
 solely by his being employed professionally, but was in some measure 
 obtained by his acting as a party to the transaction, and the more 
 especially so, if this transaction was fraudulent ; ^ — or where the 
 
 1 R. V. Hayward, 2 C. & Kir. 234. See E. v. Jones, 1 Den. 166 ; E. v. 
 Brown, 9 Cox, 281. 
 
 2 E. V. Farley, 2 C. & Kii. 313 ; 1 Den. 197, S. C. , 
 ' Gr. Ev. § 244, in great part. 
 
 ^ Besides the exceptions here stated, the following case may be mentioned. 
 In a suit for taking a partnership account between solicitors, semble that the 
 plaintiff is entitled to the discovery and production of papers material to the 
 account, though they relate to professional business transacted for clients, and 
 the conseciuent effect of their production must be that some stranger wiU 
 become acquainted with matters intrusted to the partners in confidence. 
 Brown v. Perkins, 2 Hare, 540. This case obviously rests on necessity, 
 for otherwise no account could ever be taken between solicitors acting in 
 partnership. 
 
 ' See Follett v. Jefferyes, 1 Sim. N. S. 3, 17, where Eolfe, V.-C, observed, 
 " It is not acciirate to speak of cases of fraud, contrived by the client and 
 
CIIAP. XVI.J APPARENT EXCEPTIONS TO EDLE. 783 
 
 communioatioii was made hefore the solicitor was employed as such, 
 or after his employment had ceased ; — or where, though consulted by 
 a friend because he was a solicitor, he had refused to act as such, 
 and was therefore only applied to as a friend ;— or where the infor- 
 mation was obtained, not exclusively from the client, but also from 
 some other independent source ; ^ — or where it could not be fairly 
 stated that any communication had been made ; as where, for 
 instance, a fact, something that was done, became known to him, 
 from his having been brought to a certain place by the circumstance 
 of his being the solicitor, but of which fact any other man, if there, 
 would have been equally conusant^ (and even this has been held 
 privileged in some of the cases) ;• — or where the matter communi- 
 cated was not in its nature private, and could in no sense be termed 
 the subject of a confidential disclosure ; ^ — or where it had no refer- 
 ence to professional employment, though disclosed while the relation 
 of solicitor and client subsisted ; * — or where the solicitor, having 
 made himself a subscribing tvitness and thereby assumed another 
 character for the occasion, adopted the duties which it imposes, and 
 became bound to give evidence of all that a subscribing witness can 
 be required to prove. In all such cases, it is plain that the solicitor 
 is not called upon to disclose matters, which he can be said to have 
 learned by communication with his client, or on his client's behalf; 
 matters, which were so committed to him in his capacity of solici- 
 tor; and matters, which in that capacity alone he had come to 
 know.^ 
 
 solicitor in concert together, as cases of exception to tlie general rule. Tliey 
 are cases not coming within tlie rule itself, for the rule does not apply to all 
 which passes between a client and his solicitor, but only to what passes between 
 them in professional confidence ; and no cottrt can permit it to be said that the 
 contriving of a fraud can form part of the professional occupation of a solicitor." 
 See, also, Charlton u Coombes, 32 L. J., Ch. 284 ; 4 Giff. 372, S. C; and Kelly 
 V. Jackson, 13 Ir. Eq. R. 129. 
 
 1 Lewis V. Pennington, 29 L. J., Ch. 670, per Eomilly, M. R. ; March v. 
 Keith, 30 L. J., Ch. 127, per Kindersley, V.-C. ; S. C. nom. Marsh v. Keith, 
 1 Drew. & Sm. 342. 
 
 2 'Blown V. Foster, 1 H. & N. 736, cited post, § 934. 
 
 3 See Doe v. M. of Hertford, 19 L. J., Q. B. 526, 
 
 ■* Goodall V. Little, 20 L. J., Ch. 132 ; 1 Sim. N. S. 155, S. C. 
 ' Per Ld. Brougham, in Greenough v. Gaskell, 1 Myl. & K. 104. See, also, 
 Desborough v. Rawlins, 3 Myl. & Cr. 521, 522 ; Story, Eq. PL §§ 601, 602 ; 
 
784 ILLUSTRATION OF APPAET3NT EXCEPTIONS. [PAKT II. 
 
 § 931. It may here be expedient to illustrate these apparent ex- § 853 
 ceptions somewhat more at length. Thus, if a solicitor, having 
 been engaged in a conspiracy, be willing to turn informer, he cannot 
 be prevented from' disclosing what he knows of the transaction, 
 though he may have been employed by some of the guilty parties 
 in his professional character, and have acquired much of his know- 
 ledge in consequence of that connexion.^ In one case,^ usury in a 
 mortgage was proved by the plaintiff's solicitor, who prepared the 
 deed, and who was called by the defendant to prove the considera- 
 tion usurious. Lord Kenyon, who admitted this evidence, assumed, 
 that the solicitor had, by his conduct, become a party to the transac- 
 tion ; but as the facts do not warrant this assumption, the case 
 cannot be supported at the present day,^ and it is only valuable as 
 recognising the general principle, that if a soHcitor acts as a party, 
 no knowledge he obtains will be privileged. Again, a soHcitor has 
 been compelled to disclose a confession made to him by his cUent 
 before the retainer, respecting an erasure in a will ; * as also a 
 gratuitous conversation which his client had held vfith him after 
 the compromise of a suit, in which he stated that he was glad the 
 action was settled, as the promissory note on which it was founded 
 had been indorsed to him without consideration, and with notice 
 that it was void as being mixed up with a lottery transaction.^ On 
 the other hand, where a person, having possession of a deed in the 
 character of trustee to the defendant, had first obtained a knowledge 
 of its contents while acting as his solicitor, the knowledge thus 
 obtained was held to be privileged ; ^ and, in another case, where a 
 solicitor became a trustee under a deed for the benefit of his chent's 
 creditors, it was held that subsequent communications made to him 
 by the cUent could not be divulged.''' 
 
 Bolton V. Corp. of Liverpool, 1 Myl. & K. 88 ; Aunesley v. Ld. Anglesea, 17 
 How. St. Tr. 1239—1244. 
 
 1 1 Myl. & K. 103, 104, 109, per Ld. Brougham. 
 
 2 Diiffin V. Smith, Pea. E. 108. 
 
 ' See Ld. Brougham's observations in 1 Myl. & K. 109. But see ante, § 929. 
 
 '' Cutts V. Pickering, 1 Ventr. 197. 
 
 * Cobden v. Kendrick, 4 T. R. 431. 
 
 " Davies v. Waters, 9 M. & W. 608. In that case, the witness, as trustee, 
 might equally have refused to state the contents of the deed, but it was objected 
 in Banc that this point was not raised at Nisi Prius. See ante, § 918. 
 
 ' Pritchard v. Foulkes, 1 Poop. 1-1. 
 
CHAP. XVI.] ILLUBTEATION OF APPARENT EXCEPTIONS. 785 
 
 § 932. Where a trustee for two parties had acted as solicitor for § 854 
 one, in respect of certain disputes which had arisen between the 
 two on the subject of the trusts, the court held that, inasmuch as 
 he had been voluntarily placed in a situation inconsistent with his 
 duty as trustee for both parties, the communications between him 
 and his client were not privileged as against the other cestui que 
 trust.^ So, where a solicitor had been confidentially consulted, but 
 had not been professionally employed, because he was at that time 
 acting as undersheriff, he was held bound to disclose what had been 
 communicated to him.^ Again, in GriflEith v. Davies,^ a witness 
 called by the plaintiff was permitted to state a conversation, in 
 which the defendant proposed a compromise to the plaintiff, although, 
 when the conversation took place, the witness was attending as 
 solicitor for the defendant ; for, in this case, the knowledge gained 
 by the witness was not by reason of its being intrusted to him in 
 his professional character, but merely by his being present at the 
 conversation.* So, if a solicitor, by the direction of his cHent, 
 makes a proposal to the opposite party, he may be compelled to dis- 
 close what he stated to that party, though he cannot divulge what 
 his client had communicated to him ; ^ and if communications from 
 an adverse party be made, either directly to the solicitor for the 
 purpose of being communicated to the client," or to the cHent him- 
 self in the presence of the solicitor,^ the solicitor is not at hberty 
 to withhold them. Indeed, he is bound, as it seems, to produce all 
 
 1 Tugwell V. Hooper, 10 Beav. 348. 
 
 2 "Wason V. Eastall, 4 T. R. 753. See Galley v. Richards, 19 Beav. 401, 404. 
 
 3 5 B. & Ad. 502. See, also, Sliore v. Bedford, 5 M. & Gr. 271 ; Weeks 
 V. Argent, 16 M. & W. 817. 
 
 * Per Aldeison, B., in Davies v. Waters, 9 M. & W. 611. 
 
 " Per Parke and Patteson, Js., 5 B. & Ad. 503, commenting on and ques- 
 tioning Gainsford v. Grammar, 2 Camp. 9. See, also, Ripon v. Davies, 2 K 
 & M. 310 ; and Reynell v. Sprye, 10 Beav. 51. 
 
 « Spenceley v. Schulenburgh, 7 East, 357. There the solicitor was held 
 bound to discover the contents of a notice to produce documents, which he had 
 received from the opposite solicitor. See, also, Ford v. Tennant, 32 L. J., Ch. 
 465, per RomiUy, M. R. ; 32 Beav. 162, S. C. ; Gore v. Harris, 21 L. J., Ch. 
 10, per Parker, V.-C. ; S. C. nom. Gore v. Bowser, 5 De Gex & Sm. 30 ; 
 Paddon v. Winch, 39 L. J., Ch. 627, per James, V.-C. 
 
 ? Desborough v. Rawlins, 3 Myl. & Cr. 515, per Ld. Cottenham. 
 
 3 B 
 
786 ILLUSTRATION OF APPARENT EXCEPTIONS. [PART II. 
 
 letters, and to disclose all information, communicated to him from 
 collateral quarters.-^ 
 
 § 933. The legal adviser must also disclose all questions put to § 855 
 him by his client, together with his answers thereto, provided 
 such questions were asked in order to gain information respecting 
 matters of fact, as distinguished from those put with the view of 
 obtaining legal adviceJ' This proposition has, on one occasion,^ 
 been applied to circumstances which seem scarcely to have war- 
 ranted its application. The question was, whether the client 
 had committed an act of bankruptcy on a particular day. On that 
 day the client inquired of his solicitor, whether he could safely 
 attend a particular meeting of his creditors without being arrested 
 for debt. The solicitor advised him to remain in his office, until 
 it was ascertained whether the creditors would engage to give him 
 safe-conduct, and he accordingly remained there for two hours to 
 avoid being arrested, till the solicitor returned from the meeting. 
 The court held that what had passed between the solicitor and 
 his client was receivable in evidence. Lord Tenterden observing, 
 that " a man could hardly ask, as matter of law, whether he would 
 be free from arrest while attending a voluntary meeting of 
 creditors, though he might well ask, as matter of fact, from the 
 person at whose suggestion the creditors had been convened, 
 whether any arrangement had been made with the creditors to 
 prevent an arrest : " and his lordship added, " The solicitor 
 gives no legal advice, his answer implying that no arrangement 
 had been made, but that he would see at the meeting whether 
 any could be effected ; and he recommends his client, not as a 
 legal adviser, but as any agent or any friend might have recom- 
 
 1 Thua, a oommtinication between a solicitor and one of his client's witnesses 
 as to the evidence to he given hy the witness, is not privileged ; Mackenzie 
 V. Yeo, 2 Curt. 866. But, semhle, a solicitor is not bound to produce the 
 "proof" of a witness's evidence, which he had prepared for insertion in his 
 counsel's brief, per Bovill, C. J., in the Tichbome case, 28 Feb., 1872, MS. 
 
 2 Sawyer v. Birchmore, 3 Myl. & K. 572, per Ld. Cottenham ; Sponcclcy v. 
 Schulenburgh, 7 East, 357 ; Dosborough v. Rawlins, 3 Myl. & Or. 515. 
 
 2 Bramwell v. Lucas, 2 B. & C. 743, observed upon by Ld. Brougham, in 
 1 Myl. & K. 113—115 ; and by Ld. Cottenham, in 3 Myl. & Or. 520—522. 
 
CHAP, XVI.] ILLUSTRATION OP APPARENT EXCEPTIONS. 787 
 
 mended, to stay where he was till that matter of fact could be 
 ascertained."^ 
 
 § 934. Again, it is no breach of professional confidence for a § 856 
 legal adviser to give evidence of a fact not communicated directly 
 to him by his client, but the knowledge of which has been acquired 
 by him during the progress of a trial. The case of Brown v. 
 Foster^ well illustrates this proposition. There, counsel had 
 attended before a magistrate on behalf of a man charged with 
 embezzlement, and the prosecutor had produced a book, in which 
 the accused, contrary to his duty, had omitted to enter a sum of 
 money received by him. On a subsequent examination the book 
 was found to contain the entry. The accused afterwards brought 
 an action for malicious prosecution, and it was held at the trial, 
 that the counsel might give evidence that the entry was not in the 
 book at the time of the first examination, as that fact had not been 
 communicated to him by his client, but he had become cognisant 
 of it through his own personal observation. A solicitor may also 
 be called, either to prove his client's handwriting, though he be 
 acquainted with it only from having seen him sign documents in 
 the cause ; ^ or to disclose the name of the person by whom he was 
 retained, in order to let in the declarations and admissions of the 
 real party in interest ;* or to discover when and to whom he parted 
 with his client's title-deeds, and in whose possession they are.^ 
 So, for the purpose of letting in secondary evidence of the contents 
 of a document, a solicitor will be bound to answer whether it is 
 in his possession or elsewhere in court, even though he may have 
 obtained it from his client in the course of communication with 
 reference to the cause.* 
 
 1 2 B. & C. 749, 750. ^ 1 H. & N. 736. 
 
 » Huid V. Moring, 1 C. & P. 372, per Abbott, 0. J. ; Johnson v. Daverne, 
 19 Johns. 134 ; 4 Hawk. P. C, b. 2, c. 46, § 89. 
 
 * Levy V. Pope, M. & M. 410, per Parke, J. ; Brown v. Payson, 6 New 
 Hamps. 443. 
 
 = Banner v. Jackson, 1 De^Gex & Sm. 472, per K. Bruce, V.-C, reluctantly 
 yielding to Stanliope v. Knott, 2 Swanst. 221, n., and Kingston v. Gale, Rep. 
 temp. Finch, 259. * 
 
 " Dwyer v. CoUins, 7 Ex. R. 639 ; Coates v. Birch, 2 Q. B. 252 ; 1 G. & D. 
 
 3 i: 2 
 
788 ILLUSTRATION OP APPAEENT EXCEPTIONS. [PART H. 
 
 § 935. The legal adviser, too, is bound to furnish any informa- § 856 
 tion in his power which may lead to the discovery of his client's 
 address, especially if that client be a ward in Chancery, who is 
 attempting to conceal his residence from the court.^ So, also, he 
 may be called to identify his client as the person who has put in 
 any pleading, or sworn any af&davit, because these acts, so far from 
 being secrets, are in their very nature matters of publicity.^ From 
 one case it would even seem that a solicitor might be compelled to 
 divulge the character in which his client employed, him, as, for 
 instance, whether as executor, or trustee, or on his own private • 
 account ;^ but, in America, it has been held, that counsel could not 
 state whether they were employed to conduct an ejectment for their 
 client, as landlord of the premises.* A solicitor, who has prepared 
 a will at the instance of a party benefited by it, is not privileged 
 to withhold from the Probate Division of the High Court any facts, 
 which are connected with contemporaneous business transacted 
 between the testator and himself on account of his cUent the 
 legatee, when his opinion of the testator's capacity to make a wiU 
 is in any degree founded on such facts. ^ 
 
 § 936. Moreover, the privilege does not attach to unnecessary § 857 
 communications made by a client to his legal adviser ; and there- 
 fore a prosecutor's solicitor has been allowed to state that, pending 
 the proceedings on the indictment, his client had observed to him 
 that he would give a large sum to have the prisoner hanged ;® and, 
 in an action brought by a solicitor for his bill, where the question 
 
 474, S. C. ; Bevan v. Waters, M. & M. 235, per Best, 0. J. ; Eicke v. Nokes, 
 id. 303 ; Eoupell v. Haws, 3 Fost. & Fin. 797, per Channell, B. 
 
 ' Ramabotham v. Senior, 8 Law Eep., Eq. 575, per Malins, V.-C. ; Burton 
 V. Ld. Damley, id. 576, n. ; Ex parte Campbell, 5 Law Eep., Ch. Ap. 703. 
 But see Heath, v. Crealook, 15 Law Rep., Eq. 257, per Bacon, V.-C. 
 
 2 B. N. P. 284, b. ; Studdy v. Sanders, 2 D. & R. 347 ; Doe v. Andrews, 
 2 Cowp. 846, per Ld. Mansfield ; cited by Ld. Brougham in 1 Myl. & K. 108, 
 overruling R. v. Watkinson, 2 Str. 1122. 
 
 ' Beckwith v. Benner, 6 C. & P. 681, per Gumey, B. 
 
 * Chirac v. Reinicker, 11 Wheat. 280, 295. 
 
 ' Jones V. Goodrich, 5 Moo. P. C. R. 16, 25. 
 
 « Annesley «. Ld. Anglesea, 11 How. St. Tr. 1223—1244; Cobden «. 
 KendriQk, 4 T. R, 431, cited ante, § 931. 
 
CHAP. XVI.] ILLXISTEATION OP APPARENT EXCEPTIONS. 789 
 
 was whether he had been employed by the defendant or by a third 
 party, a statement made by the plaintiff to his solicitor, on intro- 
 ducing such third party to him, was held to be excluded from the 
 rule of privilege.^ So, if a solicitor attests an instrument which 
 his client executes, he may be compelled to prove the execution ; 
 for by becoming a subscribing witness he makes himself a public 
 man, and pledges himself to give evidence on the subject, whether 
 he be called by the party to whom the deed is executed, or by any 
 other person who claims an interest in the property.^ 
 
 § 937. But where the assignees of a bankrupt, in an action of § 858 
 assumpsit brought by them, endeavoured to establish that the 
 bankrupt had made a fraudulent conveyance to his son, and, in 
 order to prove this transaction, called the bankrupt's solicitor. Lord 
 EUenborough held that, though, as attesting witness to the deed, 
 he was bound to disclose what took place at the time of its 
 execution, he was privileged from stating what occurred during its 
 concoction and preparation, and could not be asked' whether it had 
 not been subsequently destroyed, if the only Imowledge he had, as 
 to its concoction, preparation or destruction, was acquired from 
 his confidential situation as solicitor.^ So, a legal adviser cannot, 
 as it would seem, disclose in what condition an instrument was 
 when it was intrusted to him by his client, as whether or not it 
 then were stamped, or indorsed, or had an erasure upon it ; * and in 
 an action of trover for a lease, brought by the assignees of a _ bank- 
 rupt, where the question was whether the lease had been deposited 
 
 1 Gillard v. Bates, 6 M. & W. 547 ; 8 Dowl. 774, S. C. See, also, Caldbeck 
 V. Boon, I. R. 7 C. L. 32. 
 
 2 Doe V. Andrews, 2 Cowp. 845 ; Eobson v. Kemp, 5 Esp. 53 ; 4 id. 235 ; 
 Saiidford v. Eemington, 2 Ves. 189. ^ Robson v. Kemp, 5 Esp. 52. 
 
 " Wheatley v. Williams, 1 M. & W. 533. In B. N. P. 284 a, it is stated, 
 that, " if the question were about a rasure in a deed or will, tbe attorney 
 might be examiued to the question, wbether he had ever seen it in any other 
 plight ; " but, in Wheatley v. Williams, Ld. Abinger observed, that this 
 passage "must apply to a case where the attorney has his knowledge ia- 
 dependently of any communication from the client ; it cannot mean that 
 where the attorney, coming to the client for a confidential purpose, obtains 
 some other collateral information which he would not otherwise have pos- 
 sessed, he can be compelled to disclose it." p. 541. See, also, Brown v. 
 Payson, 6 New Hamps. 443. 
 
790 JUDGES, AKBITRAXOES, AND COUNSEL. [PAET II. 
 
 with the defendant by the bankrupt before or after the bankruptcy, 
 a solicitor, who, after the act of bankruptcy, had been applied to by 
 the bankrupt to procure a loan, was not permitted to state whether 
 his cHent had, on that occasion, brought to him the lease, for the 
 purpose of raising money upon it.^ 
 
 § 938.^ Judges, arbitrators, and counsel form a third class of § 859 
 persons, who, from motives of public poUcy, are perhaps not 
 compellable to testify as to certain matters, in which they have 
 been judicially or professionally engaged; though, Hke ordinary 
 persons, they may be called upon to speak to any foreign and 
 collateral matters, which happened in their presence, while the 
 trial was pending, or after it was ended.^ In regard to judges of 
 courts of record, it is considered dangerous, or at least highly 
 inconvenient, to compel them to state what occurred before them 
 in court ; and on this ground the grand jury have been advised 
 not to examine a chairman of quarter sessions, as to what a 
 person testified in a trial in his court.* The case of arbitrators 
 is governed by the same general policy ; and the courts vdll not 
 disturb the dehberate decision of an arbitrator, by requiring him to 
 disclose the grounds of his award, unless under very cogent circum- 
 stances, such as upon an allegation of fraud; for Interest reipublicce 
 ut sit finis litiumJ' Of course, a judge or an arbitrator may, by 
 his own consent, be examined respecting the facts proved, or the 
 matters claimed, at the trial or the reference ; ^ and an arbitrator 
 may be asked questions for the purpose of showing that he has 
 exceeded his powers, as, for instance, by awarding compensation 
 for injuries not included in the matters submitted to him.'' With 
 
 1 Turquand v. Knight, 2 M. & W. 98. = q.^ y.y. § 249, in part. 
 
 = R. V. E. of Thanet, 27 How. St. Tr. 845—848 ; Ponsford v. Swaine, 
 1 Johns. & Hem. 433. 
 
 ■• E. V. Gazard, 8 C. & P. 595, per Patteson, J. 
 
 = Johnson v. Dvuant, 4 C. & P. 327 ; 2 B. & Ad. 925, S. C. ; Ellis v. 
 Saltan, 4 0. & P. 327, n. a. ; Ponsford v. Swaine, 1 Johns. & Hem. 433 ; 
 Story, Eq. PL §§ 599, 824, 825, n. ; 2 Story, Eq. Jni. §§ 1457, 1498 ; 
 Anon., 3 Atk. 644. 
 
 " Martin v. Thornton, 4 Esp. 181, per Ld. Alvanley. 
 
 7 D. of Bnccleuch v. Met. Board of Works, 5 Law Kep., H. L. 418 ; 41 L. J., 
 
CHAP. XVI.J SECRETS OF STATE — INF0BMBE3. 791 
 
 respect to barristers, it has been held that they cannot be forced 
 to prove what was stated by them on a motion before the court ;i 
 and the Hke privilege has been strenuously claimed, though 
 not expressly recognised, where a counsel was called upon as 
 a witness to disclose a confidential negotiation, into which, on 
 behalf of his client, he had entered with a third party, though 
 the client himself waived all objection to the course of examination 
 proposed.^ 
 
 § 939.^ A fourth class of cases, in which evidence is excluded § 860 
 from motives of pubHc policy, comprises secrets of State, or 
 matters, the disclosure of which would be prejudicial to the pubHc 
 interest. These' matters are such as concern the administration, 
 either of penal justice, or of government ; but the principle of 
 public safety is in both cases the same, and the rule of exclusion 
 is applied no further than the attainment of that object requires. 
 Thus, in Crown prosecutions, and in Exchequer informations 
 for frauds committed against the revenue laws, witnesses for the 
 Crown will not, on cross-examination, be permitted to disclose 
 either the names of their employers, or the nature of the con- 
 nexion between them, or the names of the persons from whom 
 they received information, or the names of those to whom they 
 gave information, whether such last-mentioned persons were 
 magistrates, or actually concerned in the executive administration, 
 or were only the channel throifgh which the communication was 
 made to Government.* Neither can the witness be asked whether 
 he himself was the informer.^ "It is perfectly right," said Lord 
 Chief Justice Eyre, in Hardy's case," " that all opportunities 
 should be afforded to discuss the truth of the evidence given 
 against a prisoner ; but there is a rule, which has universally 
 
 Ex. 137, per Dom. Proc, S. 0. ; 5 Law Eep., Ex. 221, per Ex. Oh. ; 39 L. J., 
 Ex. 130, S. 0. ; 3 Law Eep., Ex. 306 ; 37 L. J., Ex. 177, S. C. 
 
 1 Ciirry v. "Walter, 1 Esp. 456, per Byre, C. J. 
 
 2 BaiUie's case, 21 How. St. Tr. 358—361. 
 
 3 Gr. Ev. § 250, in great part. 
 
 * R. V. Watson, 32 How. St. Tr. 100—103 ; 2 Stark. R. 135, S. C. ; R. v. 
 Hardy, 24 How. St. Tr. 753, 808—820 ; 1 Pli. Ev. 178—180. 
 =• Att.-Gen. v. Briant, 15 M. & W. 169. « 24 How. St. Tr. 808, 
 
792 rNFOKMEKS— CHANNELS OF INFORMATION. • [PART II. 
 
 obtained, on account of its importance to the public for the 
 detection of crimes, that those persons, who are the channel by- 
 means of which the detection is made, should not be unnecessarily 
 disclosed." 
 
 § 940. The protection afforded by this rule will be equally § 861 
 upheld, though the witness, in his examination in chief, has 
 admitted that suggestions have been made to him on the part of 
 the Government ; ^ and the doctrine has been even carried so far, 
 that, where a witness, believing the views of certain parties to be 
 dangerous to the State, had consulted a private friend as to what 
 steps he should pursue, and the friend advised him to communi- 
 cate the information to Government, a majority of the learned 
 judges held that the name of his friend could not be disclosed.^ 
 They^ were also, in the same case, unanimously of opinion, that 
 all questions tending to the discovery of the channels by which the 
 information was given to the officers of justice, were, upon the 
 general principle of public convenience, to be suppressed ; that all 
 persons in that situation were protected from the discovery ; and 
 that, if an objection were raised to the question, it was no more 
 competent for the defendant to ask who had advised the witness to 
 give information, than to ask to whom he had given it in conse- 
 quence of that advice, or to put any other question respecting the 
 channel of communication.* The witness, however, may stiU be 
 asked, — though little practical ad-v*,ntage can be gained by putting 
 such a question, — whether the person to whom the information was 
 communicated was a magistrate or not.^ 
 
 § 941. It may well be doubted whether this rule of protection §862 
 extends to ordinary prosecutions ; ^ and even when it applies, — as 
 
 1 E. V. O'Connell, Arm. & T. 178, 179. See, also, pp. 233, 240, of the same 
 report, where the general doctrine was recognised and acted upon. 
 
 2 E. V. Hardy, 24 How. St. Tr. 808—820, Eyre, C. J., Hotham, B., & 
 Grose, J., pro : Maodonald, C. B., & Buller, J., con. 
 
 =• Gr. Ev. § 250, in part. 
 
 " 24 How. St. Tr. 816, per Eyre, C. J. = Id. 808. 
 
 « Att.-Gen. v. Briant, 15 M. & W. 181, per PoUock, C. B. ; E. v. Eichard- 
 son, 3 Eost. & Fin. 693, per Cockburn, C. J. 
 
CHAP. XVI.] PROCEEDINGS 01? GRAND JURORS. 793 
 
 unquestionably it does whenever the Government is directly con- 
 cerned, — it naay sometimes, if rigidly enforced, he productive of great 
 individual hardship ; since, where a witness is giving an account of 
 what occurred at a distant period, it is obviously material to ascer- 
 tain whether he gave substantially the same account recently after 
 the transaction ; and if the object be to shake the credit of the 
 witness, it is equally important to know whether a communication, 
 which he asserts that he made to a certain person, was, in fact, 
 ever so made. On the other .hand, it is absolutely essential to the 
 welfare of the State, that the names of parties who interpose in 
 situations of this kind should not be divulged ; for otherwise, — ^be it 
 from fear, or shame, or the dislike of being publicly mixed up in 
 inquiries of this nature, — few men would choose to assume the dis- 
 agreeable part of giving or receiving information respecting offences, 
 and the consequence would be that many great crimes would pass 
 unpunished.^ 
 
 § 942.^ The opinion which seems best supported by decided cases § 863 
 and dicta, is, that the proceedings of grand jurors should, on 
 similar grounds of public policy, be regarded as privileged commu- 
 nications. Some persons imagine, — though it would seem errone- 
 ously, — that the preliminary inquiry as to the guilt or innocence of 
 a party accused ought to be secretly conducted ; ^ and, in furtherance 
 of this object, every grand juror is sworn to secrecy. One reason 
 may be, to prevent the escape of the party, should he know that 
 proceedings were in train against him ; another may be, to secure 
 freedom of deliberation and opinion among the grand jurors, which 
 might be impaired if the part taken by each could be made known 
 to the accused or to the Crown ; and although these reasons are 
 clearly fallacious, since the first is answered by the fact, that most 
 crimes are primarily investigated by an open inquiry before the 
 committing magistrate, and the second rests on an assumption of 
 pusillanimity and meanness, which the gentlemen who constitute 
 
 1 Home V. Bentinok, 2 B. & B. 162, per Dallas, C. J. ; U. S. v. Moses, 4 
 Wash. 726. ^ Gr. Ev. § 252, in part. 
 
 3 In E. V. BuUarcl, 12 Cox, 353, Byles, J., observed, that "the grand jury 
 were a secret tribunal, and not bound by any rules of evidence." 
 
794 PEOCEBDINGS OF GEAND JUEOES. [PAET II. 
 
 the grand jury but little deserve ; still, they are the best that can 
 be furnished in support of a system, which is doubtless often pro- 
 ductive of perjury, often of collusion, and sometimes of oppression.^ 
 
 § 943. The rule includes not only the grand jurors themselves, § 863 
 but their clerk,^ if they have one, and the prosecuting officer,* if he 
 be present at their deliberations ; all these being equally concerned 
 in the administration of the same portion of penal law. They are * 
 not permitted to disclose what number of jurors were present when 
 a case was brought before them, or the number or names of the 
 jurors who agreed or refused to find the bill of indictment ; * neither 
 can they be called on the trial to explain their finding,^ or to detail 
 the evidence on which the accusation was founded,^ or to show that 
 a witness has given testimony in court contrary to what he had 
 sworn before them.''' In an action, however, for a mahcious indict- 
 
 ' See observations on tMs subject, and on the general inutility of grand 
 jiiries, in Law Mag. vol. xxxi. pp. 242 — 251. 
 
 2 12 Vin. Abr., Ev. B. a. 5. 
 
 ' So decided in America, Com. ■;;. Tilden, cited in 2 St. Ev. 232, n. 1, by 
 Metcalf ; M'Lellan v. Richardson, 1 Shepl. 82. 
 
 " R. V. Marsh, 6 A. & E. 236. See 4 Hawk. P. C, b. 2, c. 25, § 15. In 
 America, grand jurors have been asked whether twelve of their number 
 actually concurred in the finding of a bill, the certificate of the foreman not 
 being conclusive evidence of that fact ; M'Lellan v. Richardson, 1 Shepl. 82 ; 
 Low's case, 4 Greenl. 439 ; Com. v. Smithj 9 Mass. 107. 
 
 5 B. V. Cooke, 8 C. & P. 584, per Patteson, J. 
 
 « See R. V. Watson, 32 How. St. Tr. 107, per Ld. EUenborough, and 6 
 A. & E. 237, arg. ; Hindekoper o. Cotton, 3 Watts, 56 ; M'Lellan v. Richard- 
 son, 1 Shepl. 82 ; Low's case, 4 Greenl. 439, 446, 453 ; Burr's trial [Anon.], 
 Ev.fordeft., p. 2. 
 
 ' 12 Vin. Abr. Ev. H. ; Imlay v. Rogers, 2 Halst. 347. Mr. Chitty, in 
 his 1st vol. of Crim. Law, p. 322, states that perjury before the grand jury is 
 indictable, and refers to his vol. on Prec, which contains nothing on the 
 subject. Mr. Cliristian, also, in a note to 4 Bl. Com. 126, narrates that, 
 at York, a grand juror, hearing a witness swear in court contrary to the 
 evidence which he had given before the grand jury, told the judge, " and 
 the witness was committed for perjury, to be tried upon the testimony of 
 the gentlemen of the grand jury." What became of this case does not 
 appear. By the N. York Cr. Code, § 267, "Every member of the grand 
 jury must keep secret, whatever he himself, or any other grand juror may 
 have said, or in what manner he, or any other grand juror, may have voted 
 on a matter before them." § 268. "A member of the grand jury may, 
 however, be req[uired by any covirt to disclose the testimony of a witness 
 
CHAP. XVI.] PEOPEETY TAX COMMISSIONERS — PETTY . JUKOES. 795 
 
 ment, Lord Kenyon is reported to have allowed the plaintiff to call 
 one of the grand jury, in order to prove that the defendant was the 
 prosecutor/ and a similar course was pursued on another occasion 
 without opposition.^ 
 
 § 944. In illustration of this subject it may be added, that the § 863 
 clerk of the Property Tax Commissioners has been held bound to 
 produce in a court of justice his official books, and to answer all 
 questions respecting the collection of the tax, though he had been 
 sworn, on entering office, not to disclose anything he should learn 
 in that capacity, without the consent of the Commissioners, or 
 unless by force of some Act of Parliament.^ 
 
 § 945.* On similar grounds of public policy, and for the pro- § 864 
 tection of parties against fraud, the law excludes the testimony of 
 traverse or petti/ jurors, when offered to prove mistake or mis- 
 behaviour by the jury in regard to the verdict. Thus, where a 
 motion was made to amend the postea by increasing the damages, 
 the court refused to admit an affidavit sworn by all the jurymen, in 
 which they stated their intention to have been to give the plaintiff 
 such increased sum.^ So, also, on several occasions, affidavits that 
 verdicts have been decided by lot have been rejected on motion for 
 new trials, whether such affidavits were sworn by individual jury- 
 men,^ or by strangers, stating the subsequent admissions of jurors 
 to themselves,'' or even that a declaration had been made by one 
 
 examined before the grand jury, for the purpose of ascertaining whether it 
 is consistent with that given hy the witness before the court ; or to disclose 
 the testimony given before them by any person, upon a charge against him 
 for perjury in giving his testimony, or upon his trial therefor." This appears 
 to be the common-sense view of the matter. 
 • Sykes v. Dunbar, 2 Selw. N. P. 1081. 
 
 2 Freeman v. ArkeU, 1 C. & P. 137, cor. Park, J. 
 
 3 Lee V. Birrell, 3 Camp. 337, per Ld. EUenborough. 
 
 ■' Gr. Ev. § 252, in part. ^ Jackson v. WLlliamson, 2 T. R. 281. 
 
 « Vasie v. Delaval, 1 T. K. 11 ; Owen v. Warburton, 1 N. E. 326 ; Heyes 
 V. Hindle, per Q. B. in M. T., 1863, MS. ; Little v. Larrabee, 2 Greenl. 37, 
 41, n. 
 
 ' Straker v. Graham, 4 M. & W. 721 ; The State v. Freeman, 5 Conn. 348 ; 
 Meade v. Smith, 16 Conn. 346. 
 
796 PROCEEDINGS IN PARLIAMENT — SECRETS OP STATE. [PART 11, 
 
 juror in the hearing of his fellows in open court after the verdict 
 had been pronounced.^ In all cases of this kind, the court must 
 obtain their knowledge of the misconduct complained of, either from 
 the officer who had charge of the jury,^ or from some other person 
 who actually witnessed the transaction.^ But, although a juryman's 
 affidavit of what occurred in the jury-box during the trial cannot be 
 received, it is admissible to explain the circumstances under which 
 he came into the box.* 
 
 § 946. On a like principle of public policy, no witness, — whether § 865 
 he be a Peer, a Member of the House of Commons, an officer of 
 either House, or a shorthand writer, — can be forced, without the 
 permission of the House having been first obtained, to disclose in a 
 court of justice what took place within the walls of Parliament, or 
 to relate any expressions or arguments that may have been used by 
 one of the members in the course of debate ; ' and although he 
 may probably be asked as to the fact, whether or not a member 
 spoke upon a particular subject of discussion,^ he may decline to 
 answer any question relating to the manner in which the votes 
 were given on a division.''' 
 
 § 947.^ On similar grounds, the official transactions between the § 866 
 heads of the departments of Government and their subordinate 
 officers, are, in general, treated as secrets of State? Thus, commu- 
 nications between a colonial governor and his attorney-general, on 
 the condition of the colony or the conduct of its officers,^" or between 
 such governor and a military officer under his authority ; ^^ the re- 
 
 1 Burgess v. Langley, 5 M. & Gr. 722 ; Raphael v. Bk. of England, 17 
 Com. B. 161. ^ bVL. k Gr. 725, per CressweU, J. 
 
 " Vasie v. Delaval, 1 T. R. 11, per Ld. Mansfield. 
 
 - Bailey ii. Macanley, 13 Q. B. 815, 829. 
 
 ' Plunkett V. Cobtett, 29 How. St. Tr. 71, 72 ; 5 Esp. 136, S. C., per Ld. 
 Ellenboroiigh ; Chnbli v. Salomons, 3 C. & Kir. 75, per Pollock, 0. B. 
 
 « Plunkett V. Cobbett, 29 How. St. Tr. 71, 72 ; 5 Esp. 136, S. C. 
 
 ? Chubb V. Salomons, 3 C. & Kir. 75. » Gr. Ev. § 251, in great part. 
 
 5 By the N. York Civ. Code, § 1710, r. 5, " a pubUc officer cannot be 
 examined as to communications made to him in official confidence, when the 
 public interests would suffer by the disclosure." 
 
 '" Wyatt V. Gore, Holt, N. P. R. 299. 
 
 " Cooke V. Maxwell, 2 Stark. E. 183. 
 
CHAP. XVI.] BUSINESS OP DEPARTMENTS OF GOVEBNMENT. 797 
 
 port of a military commission of inquiry, made to the commander- 
 in-chief ;^ the report of a collision at sea made by the captain of one 
 of the ships to the Lords Commissioners of the Admiralty ; ^ the 
 report submitted to the Lord Lieutenant of Ireland by an Inspector 
 General of the prisons ; ^ and the correspondence between an agent 
 of the Government and a Secretary of State;* or between the 
 Directors of the East India Company and the Board of Control, 
 under the old law ; ' or between an officer of the Customs and the 
 Board of Commissioners,^ — are confidential and privileged matters, 
 which the interest of the State will not permit to be revealed. The 
 President of the United States, and the Governors of the several 
 States, are not bound in America to produce papers or disclose 
 information communicated to them, when, in their own judgment, 
 the disclosure would, on pubKc considerations, be inexpedient.'' 
 And the same doctrine, as it would seem, prevails in England, 
 whenever Ministers of State are called as witnesses for the purpose 
 of producing public documents.^ 
 
 § 948. If, however, the Minister, instead of attending personally § 866 
 at the trial, should send the required papers by the hands of a 
 subordinate officer, the judge would probably examine them himself, 
 and would compel their production, unless he were satisfied that 
 they ought on public grounds to be withheld.^ "When the law is 
 
 1 Home V. Bentinck, 2 B. & B. 130 ; 4 Moore, 563, S. C. ; Beatson v. 
 Skene, 29 L. J., Ex. 430 ; 5 H. & N. 838, S. C. ; Dawkins v. Ld. Rokeby, 
 8 Law Eep., Q. B. 255, per Ex. Ch. ; 42 L. J., Q. B. 63, S. C. 
 
 ' H. M. S. Bellerophon, 44 L. J., Adm. 5. 
 
 ' M'Elveney v. Connellan, 17 Ir. Law E., N. S. 55. 
 
 * Anderson v. Hamilton, 2 B. & B. 156, n. ; 8 Price, 244, n. ; and 4 
 Moore, 533, n. S. C. ; 2 Stark. R. 185, per Ld. Ellenborougk, cited hj tlie 
 Att.-Gen. ; Stace v. Griffith, 6 Moo. P. C, N. S., 18 ; Marbury v. Madison, 
 1 Crancb. 144. 
 
 = Smitbi;. E. India Co., 1 Phill. 50 ; Kajah of Coorg v. E. India Co., 25 
 L. J., Ch. 345 ; Wadeer v. E. India Co., 8 De Gex, M. & G. 182. 
 
 « Black V. Holmes, Fox & Sm. 28. 
 
 ' 1 Burr's trial, 186, 187, per Marshall, C. J. ; Gray v. Pentland, 2 Serg. 
 & R. 23. 
 
 8 Beatson v. Skene, 29 L. J., Ex. 430 ; 5 H. & N. 838, S. C. 
 
 ' Id. ; Dickson v. E. of Wilton, 1 Fost. & Fin. 425, per Ld. Campbell. 
 See, however, as to this last case, Dawkins v. Ld. Rokeby, 8 Law Rep., Q. B. 
 272, 273, per Kelly, C. J., pronouncing the judgment of the Ex. Ch. 
 
798 INDECBNT EVIDENCE. [PAKT II. 
 
 restrained by public policy from enforcing the production of papers, 
 the like necessity restrains it from doing what would be the same 
 thing in effect, namely, receiving secondary evidence of their con- 
 tents.-^ It has, however, been held, that, in an action of trespass 
 brought against the governor of a colony, a military officer under 
 his control might be asked in general terms, whether he did not act 
 by the direction of the defendant, though the written instructions 
 could not be given in evidence.^ But communications, though 
 made to official persons, are not privileged, where they are not made 
 in the discharge of any public duty ; such, for example, as a letter 
 by a private individual to the chief secretary of the postmaster- 
 general, complaining of the conduct of the guard of the mail 
 towards a passenger.^ 
 
 § 949.* The law excludes, on pubhc grounds, a fifth species of § 867 
 evidence, namely, that which is indecent, or offensive to pubhc 
 morals, or injurious to the feelings of third persons ; the parties 
 themselves having no interest in the matter, except what they have 
 impertinently created. The mere indecency of disclosures does not 
 suffice to exclude them, where the evidence is necessary for the 
 purpose of civil or criminal justice ; as, on an indictment for a rape ; 
 or on a question upon the sex of one claiming an estate tail, as 
 heir male or female ; or upon the legitimacy of one claiming as 
 lawful heir ; or on a petition for dissolution of marriage, for judicial 
 separation, or for damages on the ground of adultery.^ In these 
 and similar cases the evidence is necessary, either for the proof and 
 punishment of crime, or for the vindication of rights existing 
 before, or independent of, the fact sought to be disclosed. But 
 where the parties have impertinently interested themselves in a 
 question, tending to violate the peace of society by exhibiting an 
 innocent third person in a ridiculous light, or to disturb his peace 
 
 ' Gray v. Pentland, 2 Serg. & E. 23, 31, 32, per Tilgkman, C. J., cited with 
 approbation in Yoter v. Sanno, 6 Watts, 166, per Gibson, C. J. See, also, Stace 
 V. Griffith, 6 Moo. P. C, N. S. 18, and see ante, § 918. 
 
 2 Cooke V. Maxwell, 2 Stark. E. 183, per Bayley, J. 
 
 3 Blake v. PiKord, 1 M. & Eob. 198. 
 ^ Gr. Ev. § 253, almost verbatim. 
 
 ° See 20 & 21 V., o. 85, §§ 16, 27, 33. 
 
CHAP. XVI.] HOW FAE PARENTS CAN BASTARDIZE ISSUE. 799 
 
 and comfort, or to offend public decency by the disclosures which 
 its decision may require, the evidence will not be received. Of this 
 sort are wagers^ or contracts respecting the sex of a third person,^ 
 or upon the question whether an unmarried woman has had a child.^ 
 
 § 950. In like manner, when the legitimacy of a child is the § 
 question in dispute, the testimony of the parents, that they have or 
 have not had connexion, has, — on the same general ground of de- 
 cency, morality, and policy, — ^been, until very recent times, uni- 
 formly rejected by the judges.* This rule, — if, indeed, it be not 
 now indirectly superseded, partly, by § 3 of the Act of 32 & 83 Vict. 
 c. 68,^ and partly, by two modern decisions,^ — excludes, not only 
 all direct questions respecting access, but all questions which have 
 a tendency to prove or disprove that fact, unless they are put with 
 a view to some different point in the cause ; '' and it applies to the 
 depositions of the parents equally with their viva voce testimony.^ 
 Neither is it affected by the circumstance, that, at the time of the 
 
 ' No wager is now recoverable, 8 & 9 V., c. 109, § 18. See Higginson v. 
 Simpson, 46 L. J., C. P. 192. " Da Costa v. Jones, 2 Cowp. 729. 
 
 ' Ditchbnm v. Goldsmitli, 4 Camp. 152. If tie subject of the action is 
 frivolous, or the question impertinent, and this is apparent on the record, the 
 court wiU not proceed at all in the trial. Brown v. Leeson, 2 H. Bl. 43 ; 
 Henkin v. Gerss, 2 Camp. 408. But see Hussey v. Crickett, 3 Camp. 168. 
 
 '' Goodright v. Moss, 2 Cowp. 594 ; Legge v. Edmonds, 25 L. J., Ch. 
 125 ; Cope v. Cope, 1 M. & Rob. 269, 272—274, per Alderson, B. ; 5 C. 
 & P. 604, S. C. ; Wright v. Holdgate, 3 C. & Kir. 158, per CressweU, J. ; 
 E. V. Lufife, 8 East, 193, 202, 203 ; R. v. Rook, 1 Wils. 340 ; R. v. Reading, 
 Cas. temp. Hardw. 79 ; R. v. Mansfield, 1 Q. B. 444 ; 1 G. & D. 7, S. C. ; 
 Anon. V. Anon., 22 Beav. 481 ; 23 Beav. 273, S. C, giving a more accurate 
 note of the judgment ; Com. v. Shepherd, 6 Binn. 283. See ante, § 649. 
 
 s Cited post, § 1355. 
 
 « In re Rideout's Trusts, 10 Law Rep., Bq. 41 ; 39 L. J., Ch. 192, S. C. ; 
 Re Yearwood's Trusts, 46 L. J., Ch. 478, per Hall, V.-C. ; L. K., 5 Ch. D. 
 545, S. C. 
 
 ^ "Wright B. Holdgate, 3 C. & Kir. 158 ; R. v. Sourton, 5 A. &E. 180, 185, 188, 
 189. In this last case, with the view of proving non-access, the father was 
 asked whether, at a particular time, he did not live 100 miles from his wife, 
 and cohabit with her sister. Held, this question could not be put. 
 
 « Goodright ■». Moss, 2 Cowp. 592, per Ld. Mansfield ; Cope v. Cope, 1 M. 
 & Rob. 272—274, per Alderson, B. ; Atchley v. Sprigg, 3 New R. 360 ; 33 
 L. J., Ch. 345, S. C. ; per Kindersley, V.-C, explaining Plowes v. Bossey, 31 
 L. J., Ch. 601 ; Re Er-'s Trusts, 39 L. J., Ch. 192. 
 
800 HOW FAR PARENTS CAN BASTARDIZE ISSUE. [PART II. 
 
 examination of one of the parents, the other is dead ; because the 
 rule has been established, not simply on the ground that the 
 tendency of such evidence is to promote connubial dissension, but 
 on the broad basis of general public policy.'^ But this rule does 
 not preclude the parents from proving that the supposed marriage 
 was either invalid,^ or valid,^ or that their children were born before 
 or after its celebration, though the effect of such evidence is, in the 
 first and third case, to bastardise the issue, and, in the others, to 
 establish its legitimacy.* For this purpose, too, their declarations 
 or their answers in Chancery are admissible evidence.' 
 
 § 951. It is clear, also, that in a case of bastardy, a married § 868 
 woman may, when the fact of her husband's non-access has already 
 been proved by independent evidence, confess her adulterous con- 
 nection with another person, and thus enable the justices, in the 
 event of her testimony being corroborated in some material par- 
 ticular,^ to make the order of maintenance.''' But this exception to 
 the general rule of exclusion is founded on necessity; since the 
 fact, to which she is permitted to testify, is probably within her 
 own knowledge and that of the adulterer alone. ^ It may here be 
 added, — as the point has been considered worthy of discussion, — 
 that in an action against a husband for the price of necessaries 
 supplied to his wife while living alone, the wife is an admissible 
 witness for the defendant to prove that she has committed adultery, 
 and that, consequently, the defendant is not responsible for her 
 maintenance.® Such evidence, though strictly legal, is of course 
 open to comment, not only as coming from a polluted source, but 
 as the possible result of collusion between husband and wife for the 
 purpose of defeating the plaintiff's claim. ^^ 
 
 1 K. V. Kea, 11 East, 132. = j^ j-e Darcys, 11 Ir. Law R., N. S. 298. 
 
 3 R. V. Bramley, 6 T. R. 330 ; Standen v. Standen, Pea. R. 32. 
 
 ■* Goodright v. Moss, 2 Oowp. 591, and the cases referred to in Ld. Mans- 
 field's judgment, 593, 594. s Id. 
 
 8 35 & 36 v., c. 65, § 4 ; 36 V., c. 9, § 5 ; 8 & 9 V., c. 10, § 6. 
 
 ' R. V. Reading, Cas. temp. Hardw. 79 ; 1 Bott. 439, S. C. ; Cope v. Cope, 1 
 M. & Rob. 273, n. a ; Legge v. Edmonds, 25 L. J., Ch. 125. 
 
 * R. V. Luffe, 8 East, 293, per Ld. EUenboroiigh. 
 
 » Cooper 1). Lloyd, 6 Com. B., N. S. 519. w Id. 525, per Willes, J. 
 
CHAP. XVII.J TWO WITNESSES BEQUIRBD TO PEOVE TREASON. 801 
 
 CHAPTER XVII. 
 
 MATTERS NOT PROVABLE BY A SINGLE WITNESS. 
 
 § 952.1 Under this head it is not proposed to go into an ex- § 869 
 tended consideration of the Statutes of Treason, but only to 
 mention briefly some instances in which those Acts, and some other 
 statutes and rules of law, have regulated particular cases, taking 
 them out of the operation of the general principles, by which they 
 would otherwise be governed. Thus, in regard to treason and 
 misprision of treason, though by the common law these crimes 
 were sufficiently proved by one credible witness,^ it has been 
 deemed expedient to enact, that no person shall be indicted, tried, 
 or attainted thereof, but upon the oaths and testimony of Uco 
 lawful witnesses, either both to the same overt act, or one to one, 
 and the other to another overt act of the same treason, unless the 
 accused shall willingly without violence, in open court, confess 
 the same ; ^ and further, that if two or more distinct treasons 
 of divers heads or kinds shall be alleged in one indictment, one 
 witness produced to prove one of these treasons, and another 
 another, shall not be deemed to be two witnesses to the same 
 treason.* 
 
 § 953. This protective rule, — which in England has remained § 870 
 in its present state since the days of King "William III., and in 
 Ireland was adopted in the year 1821, — has been incorporated, with 
 some slight variation, into the constitution of America,^ and may 
 
 ' Gr. Ev. § 255, in part. 
 
 2 Fost. C. L. 233 ; M'Nally, Ev. 31 ; K. v. Clare, 28 How. St. Tr. 887, 924 ; 
 Woodbeck v. Keller, 6 Cowen, 120. 
 
 ^ As to the confession, see ante, § 8C6. 
 
 * 7 W. 3, c. 3, §§ 2, 4, extended to Ireland by 1 & 2 G. 4, c. 24. 
 
 ' " No person shall be convicted of treason, unless on the testimony of two 
 witTiesses to the same overt act, or on confession in open court." Const. U. S. 
 Art. 3, § 3 ; Laws U. S., ^'ol. 2, ch. 36, § 1. 
 
 3 f 
 
802 TWO WITNESSES KEQUIEED TO PBOVB TREASON. [PABT II. 
 
 be met with in the statutes of most, if not all, of the States in the 
 Union. The first notice that we have of this rule, is in a repealed 
 Act of the time of Henry "VHI.,^ and from the language there 
 employed it appears probable, that the original reason for its 
 adoption was that stated by Lord Nottingham on Lord Strafford's 
 trial : — " Anciently all or most of the judges were churchmen and 
 ecclesiastical persons, and by the canon law, now and then in use 
 all over the Christian world, none can be condemned of heresy but 
 by two lawful and credible witnesses ; and bare words may make a 
 heretic, but not a traitor, and, anciently, heresy was treason ; and 
 from thence the Parliament thought fit to appoint, that two wit- 
 nesses ought to be for proof of high treason." ^ 
 
 § 954. Its continuance in modern times may perhaps be ascribed, § 871 
 in part, to the obstinacy with which men cling to established 
 forms of proceeding ; in part, to the duty of allegiance, which may 
 be supposed to counterpoise the information of a single witness;* 
 and, in part, to the heinousness of the crime of treason, which 
 raises a presumption of innocence in favour of the accused, while 
 the counter-presumption, that on so serious a trial no witness 
 would be guilty of criminative perjury, is forgotten.* But, possibly, 
 the best reason for the regulation is, that, on state trials, the 
 prisoner has to contend against the whole power of the Crown ; 
 that this power is especially liable to abuse in times of excite- 
 ment and danger ; that the law of treason is ill-defined, and worse 
 understood ; and that the consequences of a conviction, both to the 
 accused and to his family, were, until very recently,^ savage and 
 revolting. 
 
 § 955. Notwithstanding the above rule, any collateral matter, § 872 
 not conducing to the proof of the overt acts, may be proved by 
 the testimony of a single witness, by the extrajudicial confession 
 of the prisoner, or by other evidence admissible at common law.® 
 
 1 25 H. 8, c. 14. 2 T_ jjg^y_ 208. 
 
 = 4 Bl. Com. 358. " 3 Benth. Ev. 391, 392. 
 
 5 33 & 34 v., c. 23, §§ 1, 31. 
 *■' Fo!3t. C. L. 242 ; 1 East, P. C. 130. 
 
CHAP. XVII.] PROOF CONFINED TO OVERT ACTS CHARGED. 803 
 
 For instance, on an indictment for treason in adhering to the 
 Queen's enemies, the fact that the prisoner is^ subject of the 
 British Crown may be established by his admission, or by the 
 testimony of one witness.^ 
 
 ' § 956.^ In treason, and misprision of treason, no evidence can § 873 
 be given of any overt act which is not expressly laid in the 
 indictment.^ But the meaning of this rule is, not that the whole 
 detail of facts shall be set forth, but that no overt act amounting 
 to a distinct independent charge, though falling under the same 
 head of treason, shall be given in evidence, unless it be expressly 
 laid in the indictment, or unless it conduce to the proof of any of 
 the overt acts, which are laid.* For instance, in Layer's case,^ the 
 prisoner's correspondence with the Pretender was allowed to be 
 read in evidence, as tending directly to prove one overt act laid, 
 namely, the conspiring to depose the King and to place the 
 Pretender on the throne, though this correspondence was a sub- 
 stantive treason in itself,^ and was not charged as an overt act in 
 the indictment,- and, on the same ground, the publication of the 
 Pretender's manifesto by Mr. Deacon was read against him in 1746, 
 as strongly proving with what intention he had joined the rebel 
 army, and as supporting the overt act laid in the indictment of 
 marching in a warlike manner to depose the King.'' On the other 
 hand, when Captain Vaughan was indicted for adhering to the 
 King'3 enemies, and the overt act laid was his cruising on the 
 King's subjects in the Loyal Clancarty, the court rejected evidence 
 of his cruising in another vessel ; as, if it were true, it would be no 
 sort of proof of the act for which he was then to answer.^ 
 
 > E. V. Vauglian, 15 How. St. Tr. 535, per Ld. Holt ; Post. C. L. 240, S. C. 
 
 2 Gr. Ev. § 256, in part as to fiist six lines. 
 
 ^ 7 W. 3 c. 3, § 8. This sect, is not incorporated in. the Irish Act of 1 & 2 
 G. 4 c. 24 but it Toeing also a rule at conunon law, this would seem to he 
 immaterial. 
 
 * Fost. C. L. 245 ; 1 East, P. C. 121—123. 
 
 5 16 How., St. Tr. 220—223 ; Fost. 0. L. 245, 246, S. C. 
 
 6 By 13 W. 3, c. 3, § 2. 
 
 ' E. V. Deacon, Fost. C. L. 9 ; 18 How. St. Tr. 366, S. C. ; E. v. Wedderbum, 
 Fost. C, L. 22 ; 18 How. St. Tr. 425, S. C. 
 8 E. V. Vaughan, 15 How. St. Tr. 499, 500 ; Fost. C. L. 246, S. C. 
 
 3 F 2 
 
804 PKOOF CONFINED TO OVERT ACTS CHARGED. [PART II. 
 
 § 957.^ This rule is not peculiar to trials for treason ; thougla, § 874 
 in consequence of the oppressive character of some former prose- 
 cutions for that crime, it has been deemed expedient expressly 
 to enact it in the later statutes of treason. It is nothing more 
 than a particular application of the well-known doctrine, that the 
 proof must correspond with the allegations, and be confined to 
 the point in issue.^ The issue in treason is, whether the prisoner 
 committed that crime by doing one or more of the treasonable 
 acts stated in the indictment ; as in defamation the question is, 
 whether the defendant injured the plaintiff by maliciously uttering 
 any of the slanders laid in the statement of claim ; and evidence of 
 collateral facts is admitted or rejected on the like principle, in either 
 case, according as it does or does not tend to establish the specific 
 charge. Therefore the declarations of the prisoner, and seditious 
 language used by him, are admissible in evidence as explanatory 
 of his conduct, and of the nature and object of the conspiracy in 
 which he was engaged.^ And in support of the overt act of treason 
 in the county mentioned in the indictment, other acts of treason, 
 though done in other counties, may be given in evidence ; subject, 
 however, to be ultimately rejected, if the overt act, in corroboration 
 of which they are tendered, is not proved to have been done in the 
 county as laid.* 
 
 § 958. It remains to be noticed in connexion with this subject, § 875 
 that the protective provisions of the Statutes of Treason ^ do not 
 apply to the particular class of treasons, which consists in com- 
 passing or imagining the death or destruction, or any bodily harm 
 tending to the death or destruction, maiming or wounding, of the 
 Queen, where the overt act or acts alleged shall be the assassina- 
 tion of her Majesty, or any attempt to injure in any manner what- 
 soever her Koyal person ,■ or to the misprisions of any such treason ; 
 but in all these cases the accused shall be indicted, arraigned, 
 
 1 Gr. Ev. § 256, in part. 2 Ante, §§ 218, 298. 
 
 5 R. V. Watson, 2 Stark. R. 132—135. 
 
 " R. V. Layer, 16 How. St. Tr. 164 ; R. v. Deacon, 18 id. 367 ; Post. C. L. 9, 
 10, S. C. ; R. V. Vane, 6 How. St. Tr. 123—129 ; 1 East, P. C. 125, 126. 
 * 7 A. c. 21 ; 7 W, 3, c. 3 ; 6 G. 3, c. 53, § 3. 
 
CHAP. XVII.] NUMBER OF WITNESSES TO PEOVE PEEJUEY. 805 
 
 tried and attainted, in the same manner, and according to the 
 same course and order of trial, and upon the like evidence, as if he 
 stood charged with murder; though upon conviction, judgment 
 shall be given, and execution done, as in other cases of high 
 treason.^ 
 
 § 959.2 It seems to have been formerly thought, that, in proof § 876 
 of the crime oi perjwy, tivo witnesses were necessary,-^ but this 
 strictness, if it was ever the law, has long since been relaxed ; the 
 true principle of the rule being merely this, that the evidence 
 must be something more than sufficient to counterbalance the 
 oath of the prisoner, and the legal presumption of his innocence.* 
 The oath of the opposing 'witness, therefore, will not avail, unless 
 it be corroborated by material and independent circumstances ; 
 for otherwise, there would be nothing more than the oath of one 
 man against another, and the scale of evidence being thus in one 
 sense balanced, it is considered that the jury could not safely 
 convict.^ So far the rule is founded on substantial justice." 
 But it is not precisely accurate to say, that the corroborative cir- 
 cumstances must be tantamount to another witness ; for they need 
 not be such as that proof of them, standing alone, would justify a 
 conviction, in a case where the testimony of a single witness would 
 suffice for that purpose.'' Thus, a letter written by the defendant, 
 contradicting his statement on oath, will render it unnecessai-y to 
 call a second witness.^ Still, evidence confirmatory of the single 
 
 > 39 & 40 G. 3, c. 93 ; 1 & 2 G. 4, c. 24, § 2, Ir. ; 5 & 6 V., c. 51, § 1. 
 § 2 of this last Act makes it a Mgli misdemeanor to discliarge or aim firearms, 
 or throw or use any offensive matter or weapon, with intent to injure or alarm 
 her Majesty. " Gr. Bv. § 257, in part. 
 
 ^ This is said to have heen the opinion of Ld. Tenterden ; 3 St. Ev. 860, 
 n.q; E. ■». Ohampney, 2 Lew. C. C. 259, per Coleridge, J. 
 
 * See E. V. Lee, cited 2 Euss. C. & M. 650. 
 
 5 4 Bl. Com. 358 ; E. v. Gaynor, 1 Crawf. & D., C. C. 142 ; Jehb, C. C. 262, 
 S. C. ; E. V. Braithwaite, 8 Cox, 254, 444, per Watson, B., and Hill, J. ; 1 Fost. 
 & Fin. 638, S. C. 
 
 = E. V. Yates, C. & Marsh. 139, per Coleridge, J. 
 
 ' E. V. Gardiner, 8 C. & P. 737, per Patteson, J. ; 2 Moo. C. C. 95, S. C. ; 
 E. V. Shaw, L. & Cave, 579 ; 10 Cox, 66 ; 34 L. J., M. C. 169, S. C. 
 
 ^ E. V. Mayhew, 6 C. & P. 315, per Ld. Denman. See, also, E. v. Towey, 
 8 Cox, 328. 
 
806 AMOUNT OF PEOOF IN CASES OF PERJURY. [PART II. 
 
 accusing witness in some slight particulars only, will not be 
 sufficient to warrant a conviction ;i but it must at least be 
 strongly corroborative of his testimony ; ^ or, to use the quaint but 
 energetic language of Chief Justice Parker, " a strong and clear 
 evidence, and more numerous than the evidence given for the 
 defendant."^ 
 
 § 960.* When several assignments of perjury are included in § 877 
 the same indictment, it does not seem to be clearly settled, 
 whether, in addition to the testimony of a single witness, corro- 
 borative proof must be given with respect to each ; but the better 
 opinion is that such proof is necessary ; and that too, although all 
 the perjuries assigned were committed at one time and place.^ 
 For instance, if a person, on putting in his schedule in the 
 Bankruptcy Court, or on other the like occasion, has sworn 
 that he has paid certain creditors, and is then indicted for perjury 
 on several assignments, each specifying a particular creditor who 
 has not been paid, a single witness with respect to each debt will 
 not, it seems, suffice, though it may be very difficult to obtain any 
 fuller evidence.® 
 
 § 961.^ The principle, that one witness, with corroborating ^ §78 
 circumstances, is sufficient to establish the charge of perjury, 
 leads to the conclusion, that without any witness directly to dis- 
 ■prove what is sworn, circumstances alone, when they exist in a 
 
 1 E. V. Yates, C. & Maish. 139, per Coleridge, J. ; R. v. Boulter, 2 Den. 396; 
 3 C. & Kir. 236, S. 0. 
 
 t- 2 B. ■». Champney, and R. v. Wigley, 2 Lew. C. C. 258, 259, n., per Cole- 
 ridge, J. ; Jorden v. Money, 5 H. of L. Cas. 231, 232, per Ld. Brougham ; 
 Woodbeck v. Keller, 6 Cowen, 118, 121, per Sutherland, J. 
 
 =• E. V. MuBcot, 10 Mod. 194. 'See The State v. Holier, 1 Dev. 263, 265 ; 
 The State v. Hayward, 1 Nott & M'C. 547 ; Clark's Exors. m. Van Eeimsdyk, 
 9 Cranch, 160. * Gr. Ev. § 257 a, nearly verbatim. 
 
 ° R. v. Virrier, 12 A. & E. 324, per Ld. Denman. But see E. ■». Hare, 
 13 Cox, 174. 
 
 •^ E. V. Parker, C. & Marsh. 639, 645—647, per Tindal, C. J. In R. v. 
 Mudie, 1 M. & Rob. 128, 129, Ld. Tenterden, under similar circumstances, 
 refused to stop the case, saying that if the defendant was convicted he might 
 move for a new trial. He was, however, acquitted. 
 
 ? Gr. Ev. § 258, in part. 
 
CHAP. XVII.] WHAT EVIDENCE NECESSARY TO PROVE PEEJUEY. 807 
 
 documentary shape, may combine to the sam6 effect ; as they may 
 combine, though altogether unaided by oral proof, except the 
 evidence of their authenticity, to prove any other fact connected 
 with the declarations of persons or the business of life. In 
 accordance with these views, it has been held in America, that a 
 man may be convicted of perjury on documentary and circum- 
 stantial evidence alone,— j'lrst, where the falsehood of the matter 
 sworn to by him is directly proved by written evidence springing 
 from himself, with circumstances showing the corrupt intent; 
 secondly, where the matter sworn to is contradicted by a public 
 record, proved to have been well known to the prisoner when he 
 took the oath ; and thirdly, where the party is charged with taking 
 an oath, contrary to what he must necessarily have known to be 
 true ; the falsehood being shown by his own letters relating to the 
 fact sworn to, or by any other writings, which are found in his 
 possession, and which have been treated by him as containing the 
 evidence of the fact recited in them.^ 
 
 § 962.^ If the evidence adduced in proof of the crime of perjury x 879 
 consists of two opposing statements by the prisoner, and nothing 
 more, he cannot be convicted. For, if one only was delivered 
 under oath, it must be presumed, from the solemnity of the 
 sanction, that the declaration was the truth, and the other an 
 error, or a falsehood ; though the latter, being inconsistent with 
 what he has sworn, may form important evidence, with other 
 circumstances, against him.^ And if both the contradictory state- 
 ments were delivered under oath, there is still nothing to show 
 
 ' IT. S. V. Wood, 14 Pet. 430, 440—442. In this case, under the latter head 
 of the rule here stated, it was held that, if the jury were satisfied of the corrupt 
 intent, the prisoner might well he convicted of perjury in taking, at the 
 custom-house in New York, the " owner's oath in cases where goods, wares, or 
 merchandise have been actually purchased," iipon the evidence of the invoice- 
 hook of his father, John Wood, of Saddleworth, Eng., and of thirty-five letters 
 from the prisoner to his father, disclosing a combination between them to 
 defraud the Government of the United States, by invoicing and entering the 
 goods shipped at less than their actual cost. The whole of this case deserves 
 an attentive perusal. 
 
 2 Gr. Ev. § 259, in great part. 
 
 3 See Alison, Or. L. 481. 
 
808 WHAT EVIDENCE NECESSARY TO PROVE PERJURY. [PART II. 
 
 which of them is false, when no other evidence of the falsity is 
 given. ^ If, indeed, it can be shown that, before making the 
 statement on which perjury is assigned, the accused had been 
 tampered with,^ or if any other circumstances tend to prove that 
 the statement offered as evidence against the prisoner was true, a 
 legal conviction may be obtained ; ^ and provided the nature of the 
 statements was such, that one of them must have been false to 
 the prisoner's knowledge, slight corroborative evidence would pro- 
 bably be deemed sufficient. But it does not necessarily follow 
 that because a man has given contradictory accounts of a trans- 
 action on two occasions, he has therefore committed perjury. 
 For cases may well be conceived in which a person might very 
 honestly swear to a particular fact, from the best of his recol- 
 lection and belief, and might afterwards from other circumstances 
 be convinced that he was wrong, and swear to the reverse, without 
 meaning to swear falsely either time.* Moreover, when a man 
 
 1 E. V. Wheatland, 8 C. & P. 238, 241, per Gurney, B. ; R. v. Gaynor, 1 
 Crawf. & D., C. C. 142 ; Jebb, C. C. 262, S. C. ; E. v. Harris, 5 B. & A. 926. 
 
 " Anon., per Yates, J., Ld. Mansfield, Wilmot, and Aston, Js., concurring ; 
 5 B. & A. 939, 940, n. See the obser^'ations of Mr. Greaves on this case, in 
 2 Rus.s. 0. & M. 653, n. 
 
 3 R. V. Knill, 5 B. & A. 929, 930, n. ; E. v. Hook, Dear. & Bell, 606 ; 8 
 Cox, 5, S. C. 
 
 ■• Per Holroyd, J., in E. v. Jackson, 1 Lew. 0. C. 270. This veiy reasonable 
 doctrine is in perfect accordance with the rule of the Crim. Law of Scotland, 
 as laid down by Mr. Alison, in his excellent treatise on that subject, in the 
 following terms : — " When contradictory and inconsistent oaths have been 
 emitted, the mere contradiction is not decisive evidence of the existence of 
 perjury in one or other of them ; but the prosecutor must establish which was 
 the true one, and libel on the other as containing the falsehood. Where 
 depositions contradictory to each other have been emitted by the same 
 person on the same matter, it may with certainty be concluded, that one or 
 other of them is false. But it is not relevant to infer perjury in so loose a 
 manner ; but the prosecutor must go a step further, and specify distinctly 
 which of the two contains the falsehood, and peril his case upon the means he 
 possesses of proving perjury in that deposition. To admit the opposite course, 
 and allow the prosecutor to libel on both depositions, and make out his charge 
 by comparing them together, without distinguishing which contains the truth 
 and which the falsehood, would be directly contrary to the precision justly 
 required in criminal proceedings. In the older practice this distinction does 
 not seem to have been distinctly recognised ; but it is now justly considered 
 indispensable that the perjury should be specified as existing in one, and the 
 
CHAP. XVII.] CORROBORATION OF WOMEN IN BASTARDY CASES. 809 
 
 merely swears to the best of his memory and belief, it of course 
 requires very strong proof to show that he is wilfully perjured.^ 
 
 § 963. The rule requiring something more than the testimony § 880 
 of a single witness on indictments for perjury, is confined to the 
 proof of the falsity of the matter on which the perjury is assigned. 
 Therefore, the holding of the court, the proceedings in it, the ad- 
 ministering the oath, the evidence given by the prisoner, and, in 
 short, all the facts, exclusive of the falsehood of the statement, 
 which must be proved at the trial, may be established by any evi- 
 dence that would be sufficient, were the prisoner charged with any 
 other offence.^ Moreover, when several facts must be proved to 
 make out an assignment of perjuiy, each of these facta may, in strict 
 law, be established by the uncontroverted testimony of a single 
 witness. For instance, if the false swearing be that two persons 
 were together at a certain time, and the assignment of perjury be 
 that they were not together at that time, evidence by one witness 
 that at the time named the one person was at London, and by 
 another witness that at the same time the other person was in York, 
 will be sufficient proof of the assignment of perjury.^ 
 
 § 964. In cases of bastardy, a man cannot be adjudged to be the § 881 
 putative father of an illegitimate child on the single testimony of 
 the mother ; but before an order of affiliation can be made by the 
 petty sessions,* or confirmed by the quarter sessions,'^ the mother 
 must not only be a witness,^ but her evidence must be corroborated,''' 
 in some material particular, by other testimony, to the satisfaction 
 of the justices ; and the order will be bad, if it does not allege that 
 the confirmatory evidence was material.* This rule has been wisely 
 
 other deposition referred to in modum probationis, to make out, along with 
 other circumstances, where the truth really lay." . See Alison, Cr. L. 176. 
 
 1 Per Tindal, C. J., in R. v. Parker, C. & Marsh. 645. 
 
 2 2 Russ. C. & M. 654 ; 2 Hawk., P. C. c. 46, § 10. 
 
 3 R. V. Roherts, 2 C. & Kir. 614, per Patteson, J. 
 
 ^ 35 & 36 v., c. 65, § 4 ; 36 V., c. 9, § 5. ' 8 & 9 V., c. 10, § 6. 
 
 6 R. v. Armitage, 7 Law Rep., Q. B. 773 ; 42 L. J., M. C. 15, S. C. 
 
 7 See Hodges v. Bennett, 5 H. & N. 625 ; 29 L. J., M. C. 224, S. C. 
 
 8 R. r. Read, 9 A. & E. 619 ; 1 P. & D. 413, S. C. 
 
810 PROOF REQUIRED IN ECCLESIASTICAL COURTS. [PAET II. 
 
 established, in order to protect men from accusations tvhicli profli- 
 gate, designing, and interested women might easily make, and which, 
 however false, it might be extremely difficult to disprove. Still, 
 the rule must not be strained so as to render corroboration necessary 
 with respect to the actual begetting of the child, but it will suffice 
 if any evidence be forthcoming calculated to raise a probability that 
 illicit intercourse may have taken place, as, for example, proof of 
 acts of familiarity between the mother and the putative father, 
 though these may have occurred long prior to the date when the 
 child was begotten.-' 
 
 § 965. On several occasions it has been asserted in more or less c 882 
 authoritative language, that the Chancery Division of the High 
 Court cannot act on the unsupported testimony of any person in his 
 own favour.^ Were this doctrine, however, submitted to the Court 
 of last resort, it would probably not be upheld in its integrity ; * 
 though cases may sometimes occur, — as, for example, if a verbal 
 promise by a deceased person were sought to be estabhshed by the 
 uncorroborated statement of the pi'omisee, — ^in which a judge would 
 undoubtedly be justified in refusing to pronounce a decree without 
 additional evidence.* 
 
 § 966. In the Ecclesiastical Cowrts the testimony of a single § 883 
 witness, though omni exceptione major, is .insufficient to support a 
 decree, when such testimony stands unsupported by what the 
 civilians pedantically call "adminicular circumstances."^ This 
 doctrine was in former days productive of much injustice,^ but it 
 
 » Cole V. Manning, 46 L. J., M. 0. 175. 
 
 2 Down V. EUis, 35 Beav. 578 ; Grant v. Grant, 34 Beav. 623 ; Nunn i). 
 Fabian, 36 L. J., Ch. 140 ; Hartford v. Power, I. B., 3 Eq. 602. 
 
 3 See U. falsely called J. r. J., 1 Law Rep., P. & D. 461. 
 
 * Rogers v. Powell, 38 L. J., Ch. 648, per James, V.-C. ; Hartford v. Power, 
 I. R., 3 Eq. 602. 
 
 » Donellan v. DoneUan, 2 Hagg. Ec. R. 144 (Suppl.) ; Simmonds v. Sim- 
 monds, 5 Ec. & Mar. Cas. 324, 340—347, per Dr. Lushington ; id. 6 Ec. & Mar. 
 Cas. 578, per Sir H. Pust ; Crompton v. Butler, 1 Cons. R. 460 ; Hutehins 
 V. Denziloe, 1 Cons. R. 181, 182. 
 
 See cases cited and discussed in 2nd ed. of this work, |§ 883 886. 
 
CHAP. XVII.] CORROBORATION OF ACCOMPLICES. 811 
 
 is now of little practical importance, as the spiritual courts have, by 
 a series of legislative improvements, been shorn of their jurisdic- 
 tion, — first, over suits for defamation,^ — then, over suits for brawl- 
 ing*^ — next, in relation to the grant and revocation of probates of 
 wills and letters of administration, and to all matters and causes 
 testamentary," — and lastly, in respect of divorces a mensa et thoro, 
 suits of nullity of marriage, suits of jactitation of marriage, suits 
 for restitution of conjugal rights, and, indeed, all causes, writs, and 
 matters matrimonial.* In the Probate and Divorce Division of the 
 High Courts, whether for England or Ireland, the rules of evidence 
 observed in the old superior Courts of Common Law are applied to 
 the trial of all questions of fact.^ It seems, however, that, in pro- 
 secutions under the Clergy Discipline Act," the Coui-t of Arches 
 will still be guided by the old ecclesiastical rules as to evidence, and 
 will require the testimony of a single witness to be corroborated at 
 least to a certain extent.'' 
 
 § 967. It remains only to mention the case of accomplices, who § ' 
 are usually interested,^ and always infamous, witnesses, and whose 
 testimony is admitted from necessity, it being often impossible, 
 without having recourse to such evidence, to bring the principal 
 offenders to justice. The^ degree of credit, which ought to be given 
 to the testimony of an accomplice, is a matter exclusively within 
 the province of the jury. It has sometimes been said, that they 
 ought not to believe him, unless his testimony is corroborated by 
 other evidence ; and, without doubt, great caution in weighing such 
 testimony is dictated by prudence and reason. But no positive rule 
 
 1 18 & 19 v., c. 41, as to England ; 23 & 24 V., c. 32, as to Ireland. 
 
 2 33 & 24 v., c. 32, both in England and Ireland. 
 
 ' 20 & 21 v., c. 77, § 3 ; 20 & 21 V., c. 79, § 5, Ir. 
 
 < 20 & 21 v., c. 85, § 2. 
 
 ' 20 & 21 v., c. 77, § 33 ; 20 & 21 V., o. 79, § 38, Ir. ; 20 & 21 V., c. 85, 
 § 48 ; 34 & 35 V., c. 49, § 8, Ir. o 3 & 4 V., c. 86. 
 
 ? Berney v. Bp. of Norwich, 36 L. J., Ec. C. 10, per Pr. 0. Tliis case seems 
 to overrule Burder v. O'Neill, 2 New R. 551. 
 
 8 It used to be "a popular saying, that they fished for prey, Uke tame 
 cormorants, with ropes round their necks." Macaulay's History of Engl, 
 vol. 1, ch. 5, p. 666. 
 
 ' Gr. Ev. § 380, in great part. 
 
812 dOREOBOEATION 01? ACdOMPLICES. [PAET II. 
 
 of law exists on the subject ; and the jury may, if they please, act 
 upon the evidence of the accomplice, even in a capital case, without 
 any confirmation of his statement.-^ It is true that judges, in their 
 discretion, generally advise a jury not to convict a prisoner upon 
 the testimony of an accomplice alone ; and although the adoption 
 of this practice will not be enforced by a Court of Keview,^ its 
 omission will, in most cases, be deemed a neglect of duty on the 
 part of the judge.^ Considering, too, the respect which is always 
 paid by the jury to such advice from the bench, it may be regarded 
 as the settled course of practice, not to convict a prisoner, excepting 
 under very special circumstances, upon the uncorroborated testi- 
 mony of an accomplice. The judges do not, in such cases, withdraw 
 the cause from the jury by positive directions to acquit, but they 
 only advise them not to give credit to the testimony. 
 
 § 968. It has been stated, that this practice is not applicable to § 888 
 cases of misdemeanor ; ^ but there appears to be no foundation, 
 either in reason or law, for such a distinction between misdemeanors 
 and felonies ; and, in fact, the distinction, if it ever existed, no 
 longer prevails.^ Still, the extent of corroboration will of course 
 depend much upon the nature of the crime,^ and the degree of 
 moral guilt attached to its commission ; and if the offence be one 
 of a purely legal character, as for instance, the non-repair of a 
 highway, — or if it imply no great moral delinquency, as the fact of 
 having been present at a prize-fight, which unfortunately terminated 
 in manslaughter,'' — the parties concerned, though in the eye of the 
 law criminal, will not be considered such accomplices as to render 
 
 1 R. V. Stubbs, 25 L. J., M. C. 16 ; Pearce & D. 555, S. C. ; E. v. Hastings, 
 7 C. & P. 152, per Ld. Denman ; E. v. Jones, 2 Camp. 132, per Ld. Ellen- 
 borough ; 31 How. St. Tr. 315, S. C. ; E. v. Attwood, 1 Lea. 464 ; E. v. 
 Durham, id. 478 ; R. d. Dawber, 3 Stark. R. 34 ; R. v. Sheelian, Jebb, C. C. 54 ; 
 E. V. Jarvis, 2 M. & Rob. 40. 
 
 2 R. V. Boyes, 30 L. J., Q. B. 302 ; 1 B. & S. 311, S. 0. 
 
 ■> R. V. Barnard, 1 C, & P. 88 ; R. v. Wilkes, 7 C. & P. 273. 
 ^ Per Gibbs, Att.-Gen. arg. in E. v. Jones, 31 How. St. Tr. 315. 
 ^ R. V. Farler, 8 C. & P. 106. 
 " R. V. Jarvis, 2 M. & Rob, 40, 52, per Gurney, B. 
 
 ? E. V. Hargrave, 5 C. & P. 170, per Patteson, J. ; E. v. Young, 10 
 Cox, 371. 
 
CHAP. XVII.] CORROBOEATION OF ACCOMPLICES. 813 
 
 necessary any confirmation of their evidence. Neither, in actions 
 to recover penalties, does the law apprehend any danger from the 
 mere fact of jurors being left, without any special caution from the 
 bench, to weigh the uncorroborated testimony of an accomplice.^ 
 
 § 969.^ But although on criminal trials it is the settled practice § 889 
 to require other evidence in corroboration of that of an accomplice ; 
 yet the manner and extent of the corroboration required are not so 
 clearly defined. Some judges have deemed it suf6cient, if the wit- 
 ness be confirmed in any material part of the case ; others have 
 been satisfied with confirmatory evidence as to the corpus delicti 
 only ; but others, with more reason, have thought it essential that 
 corroborative proof should be given of the prisoner having actually 
 participated in the offence ; -and, when several prisoners are tried, 
 that confirmation should be required as to all of them, before all 
 can be safely convicted.^ This last is undoubtedly now the pre- 
 vailing opinion ; the confirmation of the witness, as to the com- 
 mission of the crime, being considered no confirmation at aU, as it 
 respects the prisoner. For, in describing the circumstances of the 
 offence, he may have no inducement to speak falsely, but on the 
 contrary every motive to declare the truth, if he wishes to be be- 
 lieved when he shall afterwards endeavour to fix the crime upon 
 the prisoner.* 
 
 § 970. This doctrine has been well explained by the late Lord § 890 
 Abinger. "It is a practice," said his lordship, in a case of night- 
 poaching,^ " which deserves all the reverence of the law, that judges 
 have uniformly told juries that they ought not to pay any respect 
 to the testimony of an accomplice, unless the accomplice is corro- 
 
 1 M'Clory v. Wright, 10 Ir. Law R., N. S. 514, 519, per Keogh, J. ; Magee 
 V. Mark, 11 id. 449. 
 
 2 Gr. Ev. § 381, in great part. 
 
 3 R. V. StuBbs, 25 L. J., M. C. 16 ; Pearoe & D. 555, S. C. 
 
 ■• R. V. Farler, 8 C. & P. 106, per Ld. Abinger ; R. v. WiEies, 7 C. & P. 272, 
 per Alderson, B. ; R. v. Moores, id. 270 ; R. v. Addis, 6 C. & P. 388, per 
 Patteson, J. ; R. v. Wells, M. & M. 326, per Littledale, J. ; R. v. Sheehan, 
 Jebb, C. C. 54 ; R. v. Carey, id. 203. 
 
 5 R. V. Farler, 8 C. & P. 107, 108. 
 
814 COBKOBORATION OP ACCOMPLICES — OF INFORMERS. [PART II. 
 
 berated in some material circumstance. Now, in my opinion) that 
 corroboration ought to consist in some circumstance that affects the 
 identity of the party accused. A man who has been guilty of a 
 crime himself will always be able to relate the facts of the case, and 
 if the confirmation be only on the truth of that history, without 
 identifying the persons, that is really no corroboration at all. If a 
 man were to break open a house and put a knife to your throat, and 
 steal your property, it would be no corroboration that he had stated 
 all the facts correctly, that he had described how the person did 
 put a knife to the throat, and did steal the property. It would not 
 at all tend to show that the party accused participated in it. * * * 
 The danger is, that when a man is fixed, and knows that his own 
 guilt is detected, he will purchase impunity by falsely accusing 
 others." If two or more accomplices -are produced as witnesses, 
 they are not deemed to corroborate each other ; but the same rule 
 is applied, and the same confirmation is required, as if they were 
 but one.^ The testimony, too, of the wife of an accomplice will not 
 be considered corroborative of the evidence of her husband.^ ► 
 
 § 971.^ To one class of persons, apparently accomplices, the rule § 891 
 requiring corroborative evidence does not apply ; namely, persons 
 who have entered into communication with conspirators, but who, 
 in consequence of either a subsequent repentance, or an original de- 
 termination to frustrate the enterprise, have disclosed the conspiracy 
 to the public authorities, under whose direction they continue to 
 act with their guilty confederates, till the matter can be so far ma- 
 tured as to insure their conviction. The early disclosure is con- 
 sidered as binding the party to his duty ; and though a great degree 
 of disfavour may attach to him for the part he has acted as an in- 
 former, or on other accounts, yet his case is not treated as that of 
 an accomplice.* 
 
 1 R. V. Noakes, 5 C. & P. 326, per Littledale, J. ; R. v. Magill, Ir. Cir. R. 
 418, per Perrin, J. 2 b,_ ^_ -^^^^ 7 C. & P. 168, per Park, J. 
 
 ^ Gr. Ev. § 382, almost verbatim. 
 ^ R. V. Despard, 28 How. St. Tr. 489, per Ld. Ellenborougli.